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OFFSET.

dollars, it was held that the list of 1817

could not be reckoned as one of the lists
An assignment of a chose in action, not necessary to gain a settlement in such

negotiable, will not prevent the defend town under the fourth section of the
ant from offsetting demands against the act, passed November 4, 1817, providing
plaintiff of record which were mature that a person may gain a settlement, if
and actionable previous to the assign his rateable estate, besides his poll, shall
ment. Walker v. Sargeant,

be set in the list at the sum of sixty

dollars or upwards, for five years in suc-
See Book Account, 1, 2, 11.

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
PARTIES TO CONTRACT. dollars, under the listing laws previously

in force, but, under the act of 1820, the
The act of 1838, enacting that, in actions list of such person's property was below
on contract, if any defendant was not a sixty dollars, it was held that such re-
party to the contract, he shall recover duced list operated to prevent the gain-
his costs and the plaintiff may recover

ing of a settlement by such person,
against the other defendants, was re-

under said act of 1817, although his list
pealed on the 20th of November, 1839,

for the four previous years exceeded that
by the provisions and enactments of the sum,

Id.
Revised Statutes. Hicks adm. v. Sayles

4. Where the overseers of the poor of a
et al.,

221

town, by contract with a poor person,
received from him a horse, towards in-

demnifying the town in yielding him a
PARTNERS AND PARTNERSHIP.

support, it was held the property of the

horse vested in the town and they might
1. Persons are to be treated as partners

sue for him. Town of Lyndon v. Bel-
if they so conduct and hold themselves |

den et al.

423
out as such to others, whether their con: 15. And that the pauper, being in a dis-
tract would make them so or not —

tressed condition and in need of relief,
Stearns v. Haden et al.

540

had a right so to dispose of the horse, be.
2. It is unnecessary, in such cases, to put a

ing of little value, and his creditors could
construction on their written contract,

not impeach the transaction, as without
as between themselves and others, if by

consideration.

Id.
their conduct they have treated the con-

| 6. It was also held that there having been a
tract as a contract of partnership. · Id.

general and substantial change in the

possession of the property, the sale was
PAUPER.

not rendered fraudulent per se, though

the overseers had permitted the pauper
1. Transient poor, falling within the elev-

to ride the horse a short distance in two

or three instances, and though, on one
enth section of the act of 1797, do not
come within the twentieth section, re-

of these occasions, the property was at.
tached,

Id.
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-

PAYMENT.
lowed an account for supporting such
poor beyond the sum of five dollars, had 1. By the law of New York a promissory
made provision by vote for the payment, note, executed by one of two or more
and had made such account the ground joint debtors for a book account, against
of a claim against the town, where the the whole, will not operate as payment,
transient pauper had her legal settle- unless there be an express stipulation to
ment, which they had compromised that effect. Rosseau of Warren v. Cull
Harrington v. Alburgh.
132 et al.,

83
2. Where a person resided in a town eight 2. Payments made generally, when there

years in succession from the first day of is nothing in the circumstances of the
April, 1817, and his list that year, exclu- case to show how the debtor expected
sive of his poll, and for each of the four them to apply, may be applied by the
years next thereafter, exceeded sixty creditor, as he chooses.

Id.

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PHYSICIAN.

9. Where damages are claimed, for the

breach of a special contract, the declara1. A physician cannot recover of a brother tion must count upon the contract. Roi

of an insane person for medical attend- alton v. R. & W. Turnpike Co., 311 ance, &c., rendered the latter, at the 10. The common counts will avail in such request of such brother, unless there cases only where the terms of the special was an employment under such circum contract have been fully performed, on stances as to show an intention on the both parts, and nothing remains but the part of such brother to pay for the ser I simple duty of paying for money, labor, vices, and so understood by him and the or goods, as the case may be.

Id. physician. Smith v. Watson, 332 11. It is not always sufficient to describe a 2. The employment of a physician, and a contract in the terms in which the conpromise to pay him for his services, made tract, itself, is expressed.

Id. on the Sabbath, is not probibited by 12. If the contract be equivocal, or obscure, statute.

its obligations should be described in the

language of the law, (with certainty to a PLEAS AND PLEADING.

common intent,) to avoid the consequen

ces of a demurrer, or motion in arrest. Id. 1. A plea in bar which sets up a parol| 13. But if the contract be described in the agreement, made at the same time when terms of the contract itself, it is no varia note, absolnte upon its face, was given, l ance.

Id. that it should only be payable upon a 14. The rule of damages, for the breach of contingency, is insufficient to bar an ac. special contracts, where nothing has

tion on the note. Hatch v. Hyde et al. 25 been paid, is to give the difference be2. A plea in bar which denies the original tween what was to be paid by one party

cause of action, as a want of considera and the value of what was to be done by tion, amounts to the general issue, and the other party, and thus assess the enis ill on special demurrer I d. tire damages.

Id. 3. A plea in abatement, that H. F., by 15. A verdict will not be set aside for the whom the writ was served, was not, at

insufficiency of a declaration if it contain the time of making the service, duly the substance of a good declaration and authorized and qualified to serve the all the facts necessary to support a legal writ is U Craney Warner. 40 claim. Battles v. Braintree,

348 4. When two suits are pending to recover 16. If a sheriff declare on a receipt for

the same debt, and a judgment is ren property attached, setting forth the redered in one and paid, this cannot be covery of a judgment and the issuing of pleaded in bar of the other without pay an irregular execution thereon, and a ment of the cost. Stedens v. Briggs, 44

demand of the property only for the pur5. Payment after suit commenced cannot

pose of levying such execution upon the be pleaded in bar unless it is a payment property, such declaration is bad on deof the cost of the suit. In such a case

murrer. Jameson v. Paddock et al. 491 a plaintiff may recover nominal damages.

Id.

POSSESSION. 6. A declaration, declaring upon a note

payable in 'fulled cloth,' is supported by 1. It is a common principle that prior posà note payable in woolen fulled cloth,' session is sufficient to maintain trespass and the legal effect of its being payable or ejectment against a stranger. Mcat its cash price, is the same as if payable Grady v. Miller et al.

at its cash value. Wead v. Marsh, 80 2. When a man enters into possession of 7. Where the plaintiff, in his plea to a dec land, in this state, it is presumed he

laration in offset, alleged that the debt enters in his own right; and, if under a in suit was assigned to an attorney and deed, his acts are to be taken to be the that such attorney had a lien thereon for acts of an owner and not of a trespasscosts, and the defendant, in his replica. er,

Id. tion, traversed the allegation by alleging 3. Where, in an ancient deed, conveying that there was no such lien or assign several lots of land, the grantors des. ment to the defendant's knowledge, and cribed themselves as heirs of a deceased it appeared that no notice of the lien and person who owned the lands at the time assignment was necessary to protect the of his decease, and the grantee of such rights of the attorney,-it was held, that heirs conveyed different lots of the same such traverse presented an immaterial lands to different persons, who continued issue. Walker v. Surgeant,

247 for thirty or forty years in quiet posses. 8. Duplicity in a plea cannot be taken ad- sion, such sale and possession is proper

vantage of on a general demurrer. Id. testimony to prove that the persons so

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307

describing themselves as heirs were in 14. In actions in favor of the treasurer of fact the heirs of the person deceased. the state, on recognizances, either party Bell, adm. v. Barrons,

may bring the case into this court on ex4. Where one has claims of title to land ceptions to the decision of the county

by deed or other writing, and from time to court. State v. Merrill et al., 557 time continues to enter upon the same, 5. Under the revised statutes, it is sufficiand to do acts, which, in connection with ent if the bill of exceptions is signed by his avowed object, at the time of doing the chief judge of the county court. Id. them, evince an intention to use the land | 6. The party demurring in the county as his own, this will be construed a pos- court will open the argument in this session of the land in such person, to the | court, although the other party brought extent of his written claim of title. Spear up the case on exceptions.

Id. v. Ralph,

400 7. Where a case comes to this court on 5. If such acts be done by one who has exceptions to the decision of the county

contracted to purchase the land, and has court of questions of law, this court canentered upon it, by consent of the per not entertain a motion for a new trial son holding a written claim of title, then on the ground of new-discovered evithey constitute a possession in the ven dence. Minkler v. Estate of Minkler, 558 dor,

Id./8. In petitions for new trials of actions 6. Cutting a road upon land with a view tried in the county court, it is not neto get timber, or to fell trees in order to

cessary that the petitioner should give clear and cultivate land, constitutes, in

security for costs to the adverse party, connection with a written claim of title, on issuing the citation, as is required a constructive possession to the whole

on the issuing of writs of summons. tract described.

Id.
Durkee v. Marshall,

559 9. On a petition for a new trial, this court

will not proceed to the hearing upon POST MASTER.

the merits until furnished with a proper.

ly authenticated copy of the minutes of Although a postmaster, who receives a let-|

the judge who tried the case in the ter, containing money, which is lost

county court, or evidence showing that through his want of ordinary care, is such copy has been applied for and could liable to a special action on the case, for not be obtained, in which case, only, will such neglect, he is not liable to an action the court dispense with such copy and for money had and received, unless he admit the affidavits of the attorneys, as put the money to his own use. Dan to what passed at the trial,

u at the trial,

Id forth v. Grant,

283 | 10. When a judgment has been rendered See JUSTICE OF THE PEACE.

against a party, in the county court,

- by default, this court cannot, on petition. PRACTICE.

grant a trial in the action. Adams y. Howard

560

11. Where a party, intending to take an 1. On an information and scire facias a

appeal from a decree of the chancellor gainst a corporation to vacate their char

at the term when it was made, neglected ter, and a verdict, finding the facts

to do so, and, at the next term thereafter, charged to be true, and a memorial, pro

the chancellor allowed the appeal, it was fessing to show cause against a judg

held that the appeal was irregularly taken ment of forfeiture, the counsel for the

and it was therefore dissmissed. Gove memorialists will open the argument.

v. Dyke et al.,

561 State v. President, Directors and Com

pany of the Bank of Windsor, 562 2. The time, within which a plea in offset,

PRESCRIPTION. in an action on book account, shall be filed in the county court, resta solely in the discretion of that court, and their

See Water Courses, 2. determination in regard to it cannot be revised in this court. Ainsworth v. Drew,

563

PRESUMPTION. 3. Under the revised statutes, bills of ex

ceptions must be filed with the clerk of|1. If a testator execute his will, and the the county court within thirty days from will is not to be found at the time of his the rising of that court, and, if they are decease, this raises a presumption of his not so filed, they cannot be entertained having destroyed it with intent to revoke in the supreme court. Higbee v. Sut- it. Minkler et al. v. Estate of Minktons, 555' ler,

125 10.

2. But this is a presumption of fact, merely,l vised, after giving the warranty, of a

which inay be encountered by contrary state of facts which will be a defence for proof, and the will thus established. Id. 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 PRINCIPAL AND AGENT.

no extension of credit given the maker

of the note by reason of the warranty. 1. In simple contracts, executed by agents,

Russell v. Buck.

147 if the agent exceeds his authority, he

2. In the state of New York the law seems thereby binds himself, although he ex

to be settled, that a negotiable note, inecute the contract in the name of the

dorsed by the payee, as a security or in principal. Roberts v. Button et al., 195

payment of a precedent debt, is not trans2. So, too, if the credit is given to the

ferred in the due course of trade, so as agent, and he expressly consent to bind

to preclude the maker from setting up himself,

Id.

such matter in defence against the hol3. But if he have authority to bind the

der, as he might have done against the the principal, and the credit is given to

pavee.

Id. the principal, and the promise is made

3. Where a note is made negotiable, and on behalf of the principal, the agent is

the payment of it guarantied in the state not liable,

Id. 4. Where the agent exceeds his authority

of New York, the lex loci governs the liabilities of the parties.

I. in contracts under seal, in many cases, 4. One. (not the pavee) who writes his the more appropriate remedy is by a

name in blank on the back of a negotiaspecial action on the case,

ble promissory note, may always show, See Contract, 9.

by parol, the extent of his contract. Sandford y. Norton,

228 5. If it be a mere collateral guaranty, he PRINCIPAL AND SURETY. is entitled to reasonable notice of the

default of the principal debtor, and if he Where two persons, one being principal do not receive it, he is exonerated to and the other surety, executed a note for

the extent of the loss he thereby sus. money borrowed, and the principal, with tains.

Id. out the knowledge of the surety, agreed 6. Such guaranty, as between the parties, to pay nine per cent. interest for the is not negotiable. money, and afterwards made a payment 7. If it be negotiated, as part of the orig. of interest at that rate, and the sum paid inal contract, to a bona fide holder, for was indorsed on the note, generally; it

value; Quere- Whether the guarantor was held that the surety was not there

will be holden as a joint promissor. Id. by discharged from his liability to pay the 18. Upon the defendant proving the nature note. Richmond v. Standclifi et al., 258

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 PROBATE COURT.

he gave value for it, before he can claim

any advantage above the person to whom Where mutual claims are allowed by com.

the guaranty was made.

Id. missioners in favor of and against an es- |

19. The maker of a promissory note, paya. tate represented insolvent and the admin-19. istrator, within twenty days after the

ble on demand to one or order, is liable

as trustee of the person for whose benereturn of the commission to the probate court, files objections to the allowance

fit the note was taken, when it is shown

the note remained in his hands two against the estate, and the creditor does not prosecute his claim against the estate

months after its date. Camp v. Scott & trustee,

387 at the term of the county court next after the filing of such objections, and the ad. |

10. Quære—Whether a note, payable on ministrator does not procure an affirm.

demand, is not to be considered overdue

in the same time within which it should ance of the allowance in favor of the

be presented for payment in order to estate at that term, he cannot have such

charge an indorser.

Jd. affirmance at any subsequent term of the

| 11. If so, then if the parties reside in the court. Allen, adm'r, v. Fletcher et al. 274|

same village or town, it should be pre

sented on the day following the date ; PROMISSORY NOTE.

and if in different towns, the present.

ment should be made in the due course 1. It is no waiver of a defence, on the part of the mail.

Id. of the warrantor of a note, that he is ad. | 12. At all events, such note, where the

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457

parties all reside in the same vicinity, is warranty and immediate possession, and to be considered overdue in two months. the mortgagor consented to such sale

Id. and aided and assisted in circulating no13. A note, payable in good well-finished tice thereof and received the amount of

plows, is not to be controlled by parol the purchase money, and the purchaser evidence,showing that it was also agreed, went into possession and made large when the note was given, that if there improvements; it was held that the mortshould be improvements in the pattern gagor could not afterwards redeem the the holder of ihe note should be entitled premises, nor compel the purchaser to to have plows of the improved pattern. account for the rents and profits. Wright Gilman v. Moore,

v. Whitehcad et al.,

268 14. The defendant, to pay a note payable in the month of February, in good well

RELEASE. finished plows, on the last day of the preceding January, set apart, at the place of

1. Where, in an action on book, the audipayment, plows of the description re

tor, after the hearing, held the case under quired, sufficient to pay the note, marked

advisement, and afterwards reported in with plaintiff's name, and the plows re

favor of the plaintiff and gave nomained at that place in the same condi.

tice thereof to the attorneys of the partion, for the purpose of paying the note,

ties, and the defendant's attorney in. from that time through the month of

formed the defendant that the auditor February, and it was held that a second

had reported against him, and the plainturning out of the property, in direct

tiff, believing that no report had been terms, in the month of February, would

made, or, if made, was in favor of the be a useless act, and not required to bar

defendant, applied to the defendant to an action on the note, and that the prop

settle the suit, and thereupon, without erty in the plows vested in the plaintiff

any disclosure from the defendant of his and the note was thereby paid. Id.

knowledge of the auditor's report, no 15. If, after this, the plows were still per

inquiry being made of him in relation mitted to remain at the same place, it could not affect this question, though the

thereto, each party agreed to pay his own

costs and the plaintiff released the deproperty might afterwards have been

fendant from all damages and costs,-it damaged, or carried away by some one,

was held that such release was a bar to through the negligence of the defend-]

the action. Judd v. Blake et al., 410 ant.

1a. 2. The release of a judgment creditor, to See GUARANTY, 1, 2.

a judgment debtor, of the judgment " PAYMENT, 1. " Pleas & PLEADING, 1, 6.

implies a satisfaction, and is a good de

fence for the town when sued by the 66 INTEREST, 1. “ CONSIDERATION, 5, 6.

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 R

a release, to show that the suit was brought for the benefit of another, and

this known to the person taking the reRECOGNIZANCE.

lease. An assignment of the claim is necessary.

Id. A recognizance is a matter of record and

cannot be aided by any parol averments. If made returnable at a time when no term of court is holden, and there is nothing in the record from which the court can infer that such time was in. tended to describe the time of the next

SABBATH. session of the court, the recognizance is void. Treasurer of Vermont v. Merrill

The employment of a physician, and a et al.,

64

promise to pay him for his services, made on the Sabbath, is not prohibited by statute. Smith v. Watson,

332 REDEMPTION, EQUITY OF.

SALE OF PERSONAL PROPERTY. Where a mortgagee gave public notice of

the sale of the mortgaged premises at A sale of personal property, raised and kept auction and engaged to give a title of on a farm by a tenant, is void against his VOL. XIV. W. R. IV.

74

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