Brookfield, 26 Vt. 524. Hale v. Turner, 29 | 197. The expenses of keeping a poor person, 189. Such order is not conclusive where a not contract to pay, cannot be recovered of 190. Such order is as conclusive of every fact necessary to uphold it, as it is of the settlement. Poultney v. Sandgate, 35 Vt. 146. 191. An order of removal of a man and "his wife" (naming her), not appealed from, where a copy of the order had been duly served, was held conclusive, on the question of settlement, as to the relationship between them; as much so, as if the paupers had been actually removed. Chester v. Wheelock, 28 Vt. 554. IV. EXPENSES FOR RELIEF of Pauper. 198. Neglect of overseer. It is not a "neglect" of the overseer to provide for a transient poor person, which subjects the town to an action upon G. S. c. 20, s. 13, for the support furnished, where the overseer, at the time of the application for support, expressly promises the person furnishing it to pay him therefor, but fails to do so. In such case, the action should be upon the promise. Howe v. Royalton, 32 Vt. 415. 199. One town is not liable to another for the neglect or misconduct of its overseers in allowing its poor to stroll into such other town and to become chargeable thereto; nor for other unlawful acts of the overseer without the scope of his authority. Chelsea v. Washington, 48 Vt. 610. 192. Statute obligation. No obligation, except as imposed by statute, rests upon towns to sustain their own poor. It is altogether a 200. Poor person. One who, having no matter of positive law, and the right of any one property except growing crops not worth over to compel towns to pay for the support of their $25, sustains a personal injury so as to be helppoor is one stricti juris, and cannot be enforced less for some weeks, is "a poor person who has except in accordance with some statutory pro- fallen into distress and stands in need of immevision. Castleton v. Miner, 8 Vt. 209. Mid- diate relief," so as to oblige the town to pay dlebury v. Hubbardton, 1 D. Chip. 205. Jamaica for support furnished him after notice to the v. Guilford, 2 D. Chip. 103. Aldrich v. Lon-overseer. (G. S. c. 20.) Blodgett v. Lowell, donderry, 5 Vt. 441. Ives v. Wallingford, 8 33 Vt. 174. + Vt. 224. Houghton v. Danville, 10 Vt. 537. 201. The plaintiff at whose house a poor 195. No such expenses can be recovered, in such case, which accrued before the order was made; nor can the costs of removal be recovered, except where the sickness of the pauper prevents an execution of the order for a time. Londonderry v. Windham, 2 Vt. 149. 3 Vt. 24. 196. Where an appeal from an order of removal was, by agreement, discontinued "with costs" ;-Held, under R. S. c. 16, s. 9, that the expense of maintaining the pauper during the pendency of the appeal was not taxable. Brookfield v. Braintree, 21 Vt. 447. charges and expenses" of maintaining a pauper 203. Extent of recovery. In such action, writing, required by the statute, but no interest | continuing the same from the time he came before such notice. Ib. into town down to the time the order was made. Pittsford v. Chittenden, 44 Vt. 382. 204. Held, also, that the plaintiffs could not recover the sum which they were liable to pay 210. Interpretation of statute. G. S. c. for services rendered by a physician attending 20, s. 13, giving it a sensible interpretation, such pauper under a contract with the plain- though not precisely literal, includes all trantiffs, that if they succeeded upon the appeal sient persons who are in need of present relief, from the order of removal then pending, he though not "confined at any house." Charlesshould have a reasonable compensation, but ton v. Lunenburgh, 23 Vt. 525. that if they should fail he should have nothing 211. Notwithstanding the very plain words --although in fact they did succeed. Such con- of C. S. c. 18, s. 9;-Held, that the town in tract is in the nature of a gambling contract, which a pauper had his legal settlement and to and, as between towns, is against sound policy. which he had been ordered to be and had been Ib. 22 Vt. 294. removed, could not recover of the removing town the money expended in the support of the pauper after his removal, where the judg 205. Nor can the plaintiffs, in such case, recover a larger sum than they would be liable to pay in case the pauper's settlement had ment of unduly removed was rendered because proved to be in the plaintiff town. Ib. the pauper had not come to reside in the re 206. The plaintiff town was allowed to moving town. Ryegate v. Wardsboro, 30 Vt. recover of the defendant town, as expenses of 746. supporting an insane pauper of the defendant, 212. Form of action. In a proper case the expense of supporting the pauper at an under the statute, indebitatus assumpsit will lie insane asylum; also, for clothing destroyed by against a town for money expended in support the pauper and replaced; also, for money paid of a pauper. Danville v. Putney, 6 Vt. 512. to another town for the pauper's support after 19 Vt. 630;-overruling dictum of Chipman, C. an order of removal, which was vacated-the J., in Middlebury v. Hubbardton (1 D. Chip. whole being reasonable in amount. St. Johns-205), that the count must be special upon the bury v. Waterford, 15 Vt. 692. statute. 207. Several towns, including S and F. 213. Contract. To make a town liable to entered into a mutual arrangement for support-pay for support furnished its pauper, as upon a ing together their respective paupers upon a contract, there must be an express promise to farm purchased by them for that purpose in pay; such promise can never be implied. the town of S; under which arrangement F Aldrich v. Londonderry, 5 Vt. 441. Castleton sent to the farm to be supported there a pauper v. Miner, 8 Vt. 209. Houghton v. Danville, 10 legally chargeable to F, but who had no legal Vt. 537. Putney v. Dummerston, 13 Vt. 370. settlement in the State. The towns subse- Churchill v. West Fairlee, 17 Vt. 447. But see quently terminated this arrangement by mutual contra, Worcester v. Ballard, 38 Vt. 60. Wolconsent, but F neglected to remove its pauper, cott v. Wolcott, 19 Vt. 37. Sheldon v. Fairfax, who was thereafter supported by S. Held, 21 Vt. 102, 107. Jamaica v. Guilford, 2 D. that S could recover of F, in an action on the Chip. 103. case, the expense of supporting such pauper 214. If such relief be afforded at the request after the termination of the arrangement. Shel- of the overseer of the poor, the law implies a don v. Fairfax, 21 Vt. 102. promise to pay, and there is no more need of 208. Person in jail for intoxication. Lan express promise than between private perwas arrested in Vershire under act of 1852, s. sons. Worcester v. Ballard. Wolcott v. Wol2, No. 24, for being found intoxicated, and was cott. committed to jail in Chelsea for refusal to dis- 215. Action by jailer. Held (in 1838), close, &c. Being unable to support himself, that a jailer could not recover of the town where Chelsea supported him in jail and sued Vershire the jail was situate for the support of an imprisfor reimbursement. Held, that the action oned pauper, although the overseer had been would not lie, no statute giving it; that Ver- applied to, to furnish such support, and had shire, if liable for the support, was liable neglected to do so. Houghton v. Danville, 10 directly to the jailer, and there was no occa- Vt. 537. See Holmes v. St. Albans, Brayt. sion for Chelsea to interfere. Chelsea v. Ver- 179. shire, 35 Vt. 446. 216. Action against pauper. Money ex209. Estoppel. Where a town had re- pended by a town in the support of a pauper moved a pauper under an order not appealed cannot be recovered of the pauper, without a from ;-Held, that it could not recover of the special contract for repayment. Bennington v. town to which the removal was made the McGennes, N. Chip. 45. S. C. 1 D. Chip. 44, expense of the pauper's support prior to the Benson v. Hitchcock, 37 Vt. 567, order, on the claim that he was in fact a tran sient pauper, his purpose, as to residence, V. PROCEEDINGS AGAINST AND BETWEEN making such person liable to damages for the KINDRED. support of the pauper, is purely remedial. 217. A minor, transient in the town of N, fell sick and was supported by that town, and upon claim made on the town of B, where such Johnsbury, v. Goodenough, 44 Vt. 662. minor and his father had their legal settlement, 222. In order to charge one with the penalty B paid N the expenses. Held, that B could for transporting, or aiding in transporting, a not maintain an action against the father for poor person from one town to another without reimbursement, although he was of sufficient an order of removal, with intent to charge the ability to support the minor. Broomfield v. latter town with his support, the intent must French, 17 Vt. 79. be proved as charged. It is not sufficient merely, that by means of the aid furnished, such poor person came to the plaintiff town and became chargeable to it. Wallingford v. Gray, 13 Vt. 228. (G. S. c. 20. s. 31.) 218. Dictum, where a relative would be liable at common law to support another, a town, or an individual, furnishing relief to such person under the pauper laws, may support an action therefor against such relative, notwith- 223. Where an order of removal was regustanding the statute which gives such action larly made, and the defendants assisted the against the town of such person's legal settle-pauper voluntarily to remove within the time ment. Ib. 21 Vt. 569. prescribed by the order;-Held, that the defend 224. The overseer of town B hired the defendant, living in town P, to support there a 219. One son of a pauper was made party ants were not liable to the penalty under G. S. c. to a petition that he contribute to the pauper's 20, s. 31, for so removing the pauper, although support. (G. S. c. 20, s. 20.) He appeared, the removing town failed to serve a copy of and suggested that another son should be made a the order, or to issue a warrant of removal. party defendant; and thereupon a citation was Morgan v. Mead, 16 Vt. 644. 23 Vt. 454. ordered to be issued to the second son to appear at the next term and show cause, &c., and the cause was continued. On the second term after transient pauper of B for three months. After the appearance of the second son, he moved that the petition be dismissed as to him, because the pauper had died before the service of the citation upon him, but after it had issued. Held, (1), that the motion was out of time, for not having been made at the first term of his appearance; (2), that the motion had no merits, for that, by the statute, he became a party "as if he had been summoned on the original complaint," and because the statute made the defendants liable for past as well as future support; and (3), quare whether such proceedings could be revised on exceptions. Tinmouth v. Warren, 17 Vt. 606. the expiration of this period, the pauper re- 225. In an action to recover damages for the removal of a pauper into the plaintiff town, with intent to charge such town with his support, &c., the fact that the pauper had a settle220. Kindred of a poor person who have ment in some other town, or had a father able been to expense for his relief and support, may to support him, is no defense. Marshfield v. maintain proceedings in their own name, under Edwards, 40 Vt. 245. G. S. c. 20, s. 20, to have other kindred assessed 226. Where the defendant, by consent of saw fit ;-Held, that his subsequent removal of VI. WRONGFUL TRANSPORTATION OF PAUPER. the penalty given by G. S. c. 20, s. 31. Johnsbury v. Goodenough, 44 Vt. 662. VII. CERTAIN CONTRACTS. 221. The first clause of G. S. c. 20, s. 31, subjecting to a penalty to the town aggrieved any person who shall bring into it a pauper with intent to charge such town with his sup- 227. A bond to a town, conditioned to inport, is strictly penal; while the second clause, 'demnify the town against the maintenance of any person whose legal settlement is in such the dollar, the bank having failed. The plaintown, is a legal contract, whether such person tiff kept the bills two or three months before be, or be likely to become, chargeable to such ascertaining their worth, when he made claim town, or not. Williston v. White, 11 Vt. 40. on the agent for the deficiency. Held, in an Pawlet v. Strong, 2 Vt. 442. 14 Vt. 323. action of account, that the agent was not liable; that the plaintiff by his delay had exonerated him, and made the money his own. Pickett v. Pearsons, 17 Vt. 470. 228. Where a poor person in need of relief transferred to the town of his legal settlement, as an indemnity for his support, a horse and other things of not much value;-Held, that 3. Order. An order was received in satisthis was on sufficient consideration, and that faction of a judgment, if accepted and paid, the town could hold the property against an and no funds of the drawer were in the hands of attaching creditor of such poor person. Lyndon the drawee. The order not being paid was v. Belden, 14 Vt. 423. held no payment of the judgment. Goodrich v. Barney, 2 Vt. 422. 229. The defendant's overseer promised the plaintiff to pay for keeping a pauper until he 4. An order drawn by a debtor in favor of should remove her. He afterwards went to re- his creditor upon a third person, as a matter of move the pauper and demanded her. The plain- convenience and not as an ordinary commercial tiff told him to do as he pleased about taking her. transaction, does not operate as payment of the Some dispute arising, the overseer left, saying debt where the order does not prove productive. he should never come for the pauper again, and Heald v. Warren, 22 Vt. 409. Tracy v. Pearl, the plaintiff continued to keep her. Held, that 20 Vt. 162. this left the original promise in force and made the town liable. Buck v. Worcester, 48 Vt. 1. PAYMENT. I. WHAT CONSTITUTES PAYMENT. II. III. TION. APPLICATION OF PAYMENTS. 5. Cowed B on book, and B owed A. For convenience, merely, B gave A a letter of request to C to pay the balance due from him on account to A. This order C accepted, at first verbally, and afterwards by a written acceptance, he not knowing upon what agreement or understanding it had been given. B afterwards sued C on the account, and on the hearing produced the order and, by consent of A, cancelled the acceptance. Held, that the order and acceptance were not a payment of IV. PAYMENT AS AFFORDING A RIGHT OF C's debt to B. Tracy v. Pearl. ACTION. 6. Demand against third person. An V. PAYMENT AS AFFECTING THE SECURITIES. agreement to take a debt due the defendant VI. PLEADING. VII. EVIDENCE; PRESUMPTION. I. WHAT CONSTITUTES PAYMENT. from a third person, as payment in presenti towards the defendant's debt to the plaintiff, was held to be a virtual purchase by the plaintiff of such demand, and to operate pro tanto as payment upon the plaintiff's demand. Hayden v. Johnson, 26 Vt. 768. 1. Base coin etc. Where one, without fault, receives payment in base coin, or counterfeit, 7. The plaintiff took of the defendant on or worthless bank paper, or the bills of a sus- account, and in supposed satisfaction of it, the pended and insolvent bank (Gilman v. Peck, note of B. By mistake B charged the note in 11 Vt. 516), although such suspension and account to the plaintiff, instead of the defendinsolvency may not be known, except in the ant, and the plaintiff in subsequent settlement immediate vicinity of the bank, and the bills with B, accounted to him for the note. The may be current at the place of payment defendant received the note back of the plain(Wainwright v. Webster, 11 Vt. 576), or in tiff, paying him the cash therefor, and surforged paper, as, a promissory note (Goodrich rendered it to B, who credited him therefor on v. Tracy, 43 Vt. 314), he may treat it as no account, of which credit the defendant, in payment, and resort to his original cause of after settlement, took the benefit. Held, that action. Ib., and see Torrey v. Baxter, 13 Vt. 452. the note should not be treated as any payment of the plaintiff's account; nor the money, which was but an equivalent for the note. Lockwood v. Hoskisson, 18 Vt. 37. 2. The plaintiff's agent to collect a debt took in payment some bank bills, the value of which he did not know, but took a sufficient 8. Securities. A person giving a security guaranty that the bills were good, and delivered in payment vouches for its genuineness. Phelps, the same bills and the guaranty to the plain- J., in Bank of St. Albans v. F. and M. Bank, tiff, who, doubting the bills, said he would 10 Vt. 145. take them and see what he could do with them. 9. The plaintiff sold the defendant a horse The bills were in fact worth only 20 cents on at an agreed price, and took in part payment two promissory notes signed by one D, payable below not having found, as a fact, that the in specific articles to the defendant, and then defendant was guilty of a fraud in the transacupon their face appearing to be due and over- tion. Baxter v. Downer, 29 Vt. 412. due the plaintiff taking the risk of the respon- 12. Where a promissory note, received as sibility of D. Before this, the defendant had collateral security, has been transferred by the contracted with D to extend the time of pay- creditor for value, without rendering himself ment for a period not then elapsed, of which liable upon it, this will operate as payment. the plaintiff was not informed. Upon giving But if so negotiated as to render the creditor D notice of the transfer, he was informed by personally liable upon it, and he has afterD of such contract of extension, and he then wards taken it up, this does not operate as payseasonably offered the defendant to rescind the ment. So held, although the indorsee had whole contract, which offer was declined. obtained judgment against the maker, which When the period for which the notes were the creditor had satisfied. Dickinson v. King, agreed to be extended had elapsed, D was 28 Vt. 378. insolvent. Held, that the temporary bar created Promissory note of debtor as payment of subby the agreement to extend was a defense to sisting claim-see BILLS AND NOTES, III. the notes as against the plaintiff, when 13. Remittance. The defendants were assigned; that the plaintiff was deceived, and commission merchants in Lowell, Mass., and the defendant chargeable with such deceit; there held produce of the plaintiff, residing in that the plaintiff was not limited to a special Vermont, for sale, the avails payable in Lowell. action for the deceit, or on the contract, but The plaintiff gave them a single special order might treat the notes as no payment, and main- to remit to him in Vermont a specified sum, tain an action of book account to recover their part of the avails of the sales, in a particular way amount, as the balance due and unpaid on the-which was done. Held, that this did not sale of the horse. Loomis v. Wainwright, 21 authorize a further remittance in the same way; Vt. 520. and that, in the absence of other authority, a further remittance in the same way was at the risk of the defendant; and, the money not coming to the hands of the plaintiff, that the remittance did not operate as payment. Dodge v. Smith, 34 Vt. 178. 14. Where the defendant was, by his agreement, to pay his note to the plaintiff by sending money, instead of a draft, and the defendant, of his own motion, sent a draft;-Held, that the plaintiff's relation to the draft would not subject him to the rules of the law-merchant as to notice and return on its non-accept 10. The plaintiff, having sold the defendant certain property, directed his agent to call on the defendant and get the pay, or else take his note. The defendant, upon the agent's call, wrote a note, but for less than the amount due, and signed it as agent for a third person, and delivered it to the plaintiff's agent, who could not read, saying to him that it was his own note for the amount due. The agent delivered the note to the plaintiff and he retained it, but without either attempt to enforce it, or offer to return it, and brought his action for goods sold and delivered, and on trial produced and offered ance; but in such case he would be the agent to surrender the note. Held, that as the note of the defendant in sending the draft forward came into the plaintiff's hands through the for acceptance, and payment, and would only defendant's fraud, he owed the defendant no be bound to exercise good faith and proper duty in respect to it; and that, unless he con- diligence. Moore v. Quint, 44 Vt. 97. sented to accept it as payment, the taking and keeping of the note was not a bar to the action. Hatch v. Barnum, 23 Vt. 133. 15. Sale of pledge. Where a creditor having two demands, the one secured by the obligation of a surety and both by a pledge of 11. The plaintiff, at the defendant's request, property, sells the pledge for enough to pay gave an officer's receipt for property of the both, this satisfies both, and discharges the defendant attached, taking from the defendant surety. Strong v. Wooster, 6 Vt. 536. a written agreement of indemnity. The plain- 16. Privity. The plaintiff agreed with the tiff was afterwards made chargeable on the defendant, a newspaper publisher, to report the receipt, and, on the defendant's request and proceedings of the State senate for the defendpromise of indemnity, signed a note with the ant's newspaper at two dollars per day, and perdefendant to the creditor for the defendant's formed his contract. No reporters were debt, and took up the receipt and cancelled it, employed by the State, or by any State officer, and the defendant gave him, as collateral or by either branch of the legislature; but on security for so signing the note, certain notes the night of adjournment of the legislature, a against a third person. Held, that the second joint resolution was adopted to pay the reportcontract of indemnity superseded and dis- ers of the senate and house two dollars per day charged the first, although it turned out after- for the session. Under this resolution the wards that such collateral notes had been plaintiff received of the State the compensation attached by the trustee process-the court voted. Held, that the defendant could not |