satisfaction of the execution obtained by C. on his judgment; and that the
amendment was immaterial. Wright v. Herrick, 154.
See EQUITY, 4; EXCEPTIONS, 11; INSOLVENT DEBTOR; MARRIED
PARTY WALL.
See ACTION, 2; EVIDENCE, 4.
1. In an action for the support of a pauper, it appeared that the husband of
the pauper resided on a freehold estate in the defendant town from Jan-
uary, 1863, to January, 1868; that during the whole of this period he was
more than twenty-one years of age; that he was an alien until November,
1864, when he became a naturalized citizen; that in May, 1867, his wife
became an insane pauper, and was with his consent committed to the State
Lunatic Hospital; and that in January, 1868, he ceased to be a resident of
the defendant town. Held, that, by the St. of 1868, c. 328, § 1, as amended
by the St. of 1871, c. 379, § 1, the husband of the pauper acquired a set-
tlement in the defendant town. Endicott v. Hopkinton, 521.
2 The St. of 1868, c. 328, § 1, as amended by the St. of 1871, c. 379, § 1,
relating to the settlement of paupers, is constitutional. Ib.
3. After the Prov. St. of 1767, (7 Geo. III.) c. 3, § 4, and before the St. of
1789, c. 14, no person could gain a settlement by residence in a town for
any length of time, although not warned away, without obtaining the ap-
probation of the town at a general meeting. Malden v. Melrose, 304.
4. In an action by one town against another, for the support of a pauper, it
appeared that, by the St. of 1850, c. 309, the defendant town was set off
from the plaintiff town; that the grandfather of the pauper in 1785 bought
an estate of the clear annual income of three pounds in that part of the
town which became the defendant town by the division, and resided there
until his death in 1831; that his son, the father of the pauper, came to the
plaintiff town with his father, and in 1815 moved with his family on to a
place which is now in the plaintiff town, and in 1823, bought and moved on
to a freehold estate in that part of the town which remained within the
limits of the plaintiff town on its division, and resided there continuously
with his family, including the pauper, until 1832, when he and his family
moved to another town; and that the pauper was absent from the plaintiff
town when it was divided, and his last dwelling place in the town was in
that part of it which remained the plaintiff town after its division. Held,
that by the St. of 1789, c. 14, the grandfather acquired a settlement by his
two years' ownership and residence; that this settlement was derived by
the pauper; that the effect of such settlement was not changed by the fact
of the removal of the father of the pauper to another part of the old town
or to another town, and of his absence when the town was divided; and
that, by the St. of 1850, c. 309, § 3, which provides that the two towns
"shall be respectively liable for the support of all persons who now do, or
hereafter shall, stand in need of relief as paupers, whose settlement was
gained by, or derived from, a settlement gained or derived within their re-
spective limits," the pauper was chargeable to the defendant town. Malden
v. Melrose, 304.
1. On the issue whether certain notes were given in payment of another note
or as collateral security, there was evidence that such notes were sold, but
it did not appear that they were sold before the maturity of the principal
debt. The judge instructed the jury that the giving and acceptance of such
notes were primâ facie evidence of payment, but it was for them to say
whether, upon all the evidence, they were received in payment. Held, that
there was no ground of exception. Goodnow v. Hill, 587.
9. In an action on a bond given by one partner to another, on the dissolution
of the firm, and conditioned that the obligor should pay the debts of the
firm and hold the obligee harmless thereon, it appeared that the obligee as-
signed the bond to the creditors, and, partly before and partly after the as-
signment, paid certain of the creditors the amount of their debts, some by a
check which he borrowed and gave his note for, and some by notes, and
that the creditors receipted their bills. Held, on the defendant's excep-
tions, that the notes were to be presumed to be negotiable notes; that, this
being so, there was primâ facie evidence of payment of the debts; and that
the facts that the payments were voluntary and that the bond had been as-
signed were immaterial. Amos v. Bennett, 120.
3. In an action for goods sold and delivered, the only issue was payment.
The evidence tended to show that the defendant sent the plaintiff the note
of a third person indorsed by the defendant, together with his own check
for a small amount, in payment, and the same were received by the plain-
tiff with full knowledge that such was the defendant's intention; that the
plaintiff, upon receiving the note and check, indorsed the latter, and sent
it with the note to a mercantile agency, with instructions to send the note to
its attorney and have the same returned to the defendant, and the plaintiff's
account collected; that the agency followed these instructions, but its at-
torney, instead of returning the note and check as directed, indorsed the
latter, deposited it in bank, and it was duly paid, and returned to the de-
fendant in the ordinary course of business; that the attorney lost the note
soon after receiving it, but did not inform either the plaintiff or defendant
of the loss until after its maturity, and more than four months after its loss,
when he wrote the defendant that the note was lost; that the maker of the
lost note was able and ready to pay it at its maturity, had he been called
upon to do so; that the plaintiff supposed the note had been returned to the
defendant; that the defendant was never given a receipt for the account;
and that the note in suit was never returned to him, but he supposed that
the note of the third party and his own check had been received by the
plaintiff, in payment of the account and note in suit. Held, that the evi-
dence warranted the inference that the attorney was the agent of the plain-
tiff, for whose neglect he was responsible; that the laches and misconduct
of the agent made the note and check the property of the plaintiff, and
operated as satisfaction of his demand; and that there was sufficient evi-
dence of payment. Swett v. Southworth, 417.
4. In an action by a bank against A., the maker of a promissory note indorsed
by B., in which the answer was a general denial, it appeared that two days
after the maturity of the note, which had been protested for non-payment
and the indorser duly notified, the plaintiff charged off a certain balance
which stood upon its books to the credit of B., who kept an account there,
and shortly after sent him a notice stating this amount to be charged him
"for payment of A.'s note;" that in the mean time B. had failed; that, at
the time when the balance was charged off, and B. notified of it, the note
in suit was the only claim due against B. in the hands of the plaintiff, which,
however, held other notes not then due, upon which B. was indorser, to
none of which A. was a party; that the plaintiff's officers testified that they
did not intend to apply the balance charged off to the note in suit exclu-
sively, but they held it to be applied to any claim against B. to which they
had a right to apply it; that at the commencement of bankruptcy proceed-
ings by B., the plaintiff rendered him an account, in which all claims which
it then had against him were charged, and all payments received on his
account credited; that the first item on the debit side of the account was
the note in suit, charged at its full amount, and in the same line, upon the
credit side, was the balance which had been charged off; that the divi-
dends in bankruptcy were paid upon the balance due the plaintiff upon this
general account. The defendant asked the judge to rule that the plaintiff
was bound to apply the balance charged off to the note in suit; and that the
defendant was entitled to have it deducted from the amount of the judg-
ment in this action. The judge refused so to rule; found that the plaintiff
did not in fact so apply it; and ordered judgment for the plaintiff for a sum
which included the balance charged off. Held, that the defendant had no
ground of exception. North National Bank v. Hamlin, 506.
See BOND, 4; Judgment, 3; Pleading, 7; Principal and Agent, 2.
PERPETUITY.
See DEVISE AND LEGACY, 6.
1. If, in an action on a joint promissory note against husband and wife, the
plaintiff discontinues as to the husband by reason of proceedings in bank-
ruptcy against him and proof of the note against his estate, he is entitled te
prosecute his action to judgment against the wife. Goodnow v. Hill, 587.
8. In an action at law, brought against a savings bank in the name of the ad-
ministrator of a depositor, and stated in the declaration to be brought for
the benefit of one claiming the deposit by gift of the intestate, such admin-
istrator cannot be made a defendant under the St. of 1876, c. 203, § 19.
Pierce v. Boston Five Cents Savings Bank, 593.
See CONTRACT, 3; TRUST AND TRUSTEE, 1.
3. A count in contract for non-delivery may be joined with a count in tort for
the misdelivery of goods, if there is doubt as to the legal effect of the facts
relied upon to maintain the action. Mahon v. Blake, 477.
1. In an action of contract, the declaration alleged that the defendants exe-
cuted a bond to the plaintiff, and set forth a copy of the bond, (which was
in the usual form of a bond given by a petitioner to vacate and set aside a
judgment, under the St. of 1875, c. 33, and executed by one of the defend.
ants as principal and the others as sureties,) and alleged that the judgment
described in the condition of the bond was not vacated or set aside; that the
principal defendant had not paid or satisfied the judgment or the execution
issued thereon; that the judgment remained unpaid and unsatisfied, and
that the defendants owed the plaintiff the amount of the judgment. Held,
that the declaration was upon the bond and not upon the judgment; that
objections to the form of the declaration could only be taken advantage of
by demurrer; and that exceptions to a ruling that the plaintiff was entitled
to recover on the declaration must be overruled, with double costs.
Witt v.
Potter, 360.
See CARRIER, 2; TRESPASS.
5. A defendant in an action at law filed an answer containing an answer in
abatement and an answer to the merits. The judge overruled the answer
in abatement, and ordered the case to be tried on the merits, and a verdict
was returned for the defendant. Held, that the plaintiff had no ground of
exception, the defendant having the right to answer over if the answer in
abatement was overruled in matter of law, and it being within the discretion
of the judge, under the Gen. Sts. c. 129, § 40, to allow him to answer over
if it was overruled in matter of fact. Fisher v. Fraprie, 472.
3. In an action for money had and received, the defendant, under a general
denial, may prove that money, admitted to have been received by him,
was, by agreement of parties, applied to the payment of advances previously
made by him to the plaintiff. Marvin v. Mandell, 562.
7. In an action of contract on a promissory note and on an account annexed,
the defence of payment is open under an answer alleging "that if the plain.
tiff shall prove the making of the note declared on, or any of the items in
the plaintiff's bill of particulars, the same have been fully paid." Swett v.
Southworth, 417.
8. The St. of 1877, c. 163, providing that "any signature to a written instru-
ment declared on or set forth as a cause of action" shall be taken as ad-
mitted unless its genuineness is specially denied, does not apply to the sig-
nature of a witness to an attested promissory note, required by the Gen.
Sts. c. 155, § 4, to take the note out of the statute of limitations. Holden
Jenkins, 446.
POLICE COURT.
See DISTRICT Court.
If the notice of a person's desire to take the oath for the relief of poor debtors,
issued by a magistrate having jurisdiction of the subject matter and of the
parties, is given before the expiration of seven days from the time of giving
a prior notice, the appearance of the creditor before the magistrate, without
objection, at the hearing on the second notice, is a waiver of his right to
contest the validity of that notice, although the first notice was sufficient in
form and service. McInerny v. Samuels, 425.
See APPEAL; BANKRUPT, 10; REPORT, 1,
See EXECUTOR AND ADMINISTRATOR, 2.
PRACTICE.
See INTERROGATORIES.
1. An agent, who enters into a written agreement with his principal, by which
he engages to execute the orders of the latter "to the best of his ability,"
is bound to carry out such orders according to the terms of his engage-
ment, and is deprived of all discretion as to their execution, or any right
to call in question their prudence, provided they are explicit and intelligi-
ble, and he is furnished by his principal with the necessary means. Coker
v. Ropes, 577.
2. If a person sells goods to another, who is the agent of an undisclosed prin-
cipal, and takes the note of the purchaser in ignorance of such fact, the
presumption that the note was taken in payment is rebutted, and the seller
may resort to the undisclosed principal. Lovell v. Williams, 439.
See EVIDENCE, 12; LEASE, 3; PAYMENT, 3.
1. A surety on a bond, given to dissolve an attachment, is not discharged
by the plaintiff's being allowed to file, without notice to him, an amended
count, which does not change the cause of action, but merely states it more
in detail than the original count. Cutter v. Richardson, 72.
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