Worcester daily spy. [volume] (Worcester [Mass.]) 1850-1888, 1859-10-17
City ann County yntelllgelte,
LAW TERM-FULL BENCH.

HC Suule SdlnC III OlI odluiudJ
and the following cases were disposed Of
No. 609 Cribs vs. Adams, continued for adj
viscment
No. 1872, Wolcott VS.. Winchester, continued
for advisement.
No. S2I, Harvey VS.. Dewitt, demurrer sus-
tanned, and will dismissed.
No. 906, Hartley Williams, assignee, VS.. S.
j. Brmhal. The Court decided, through
Judge Bgelow, that in an action by the assig-
nee i'll insolvency of copartnership for debt
due the firm, defendant cannot set off claim
against one of the partners. Where two are
copartners in the business of building houses,
and one of them contracts in his own separate
behalf to build a house for a person who has
previously employed the firm, and who knows
of such copartnership, such person is liable
to the firm on a qudntam merut for labor and
materials, it both partners work on the house,
even if it be not proved that the copartnership
contract required each partner to give his
whole time to the business of the firm, or was
known to the defendanbsto extend to the period
when the house was to be built, or that it was
agreed, understood, or expected between the
parties to the contract for building the house,
that it should be built with partnership labor
or materials, or that it was known to such CON
tracing party that it was SO built And de-
PENDANT cannot give in evidence in defence of
an agreement made with the partner with
whom he contracted, that the house should
be built in payment for a debt due him
from such partner this agreement not being
known or assented to by the other
No. 90S, John L. Carlton VS.. VIM. M. Bick-
ford, continued reimbursement.
No. 1856, Paine Aldrich VS.. Ralph Earle ct
ux, continued for advisement
No. 972, ARENAS Lee VS.. inhabitants of
Templeton The Court decided, through
Judge Merrick, that where tax is invalid, by
reason Of not assessing a sufficient portion of
the state tax upon polls, q person who has
paid the same under protest, but has awaited
himself Of discount allowed to persons who
voluntarily pay their taxes, cannot recover
them back in an action against the town. Ex-
ceptions over-ruled, judgment on verdict.
No. 90S, Ezra Putnam VS.. S. NJ. Dixie and
IT, Shaw, Chief Justice. In an action OH a
debt contracted in another state between par
ties resident there, the defendant not having
resided in this state six years before action
brought, the statute oflimitations of Massachu-
sets cannot be set up in defence.
No. 989, Geo. P. Bryant VS. Charles II. Is
burgh. Continued for advisement
No. 800, Calvin II. Ruggles VS.. John Bar
ton, Jr. A mortgagor entered for condition
broken and remained in possession more than
y u
titicate of his entry to be recorded, so that no
foreclosure took place. After the three years
he conveyed to plaintiff by deed of warranty
in common form. 1t did not appear affirma-
lively whether the note was or was not trans
terred In an action brought in the Court of
Common Pleas to foreclose the mortgage held
plaintiff is entitled to recover as mortgage in
terest passed by the deed, and that on producing
and filing the notes, he would be entitled to
conditional judgment. Exceptions sustained
and new trial granted.
No 99l, Jos. Hagan VS.. Dan Riley Shaw,
Chief Justice. Where defendant had sued
the officer who had made an attachment at
suit OF plaintiff, and whom plaintiff had agreed
to indemnify, and agreed before entry of the
action not to enter it, but did enter it and pros
ecuted it for several terms. Held that he was
liable in nominal damages for breach of this
agreement, although plaintiff had paid moth
ing to officer on his contract Of indemnity, and
would be liable to the actual sum paid, if plain
tiff paid officer after suit and before trial Ex-
ceptions sustained.
No. 1872, Grafton Bank VS.. David P. Cox.
Merrick, Judge. Where a maker of promis-
sorry note has absconded before its endorse
ment, abandoning simultaneously his residence
and his place of business in this commonwealth,
although his family remain few months at
the former, a demand at the last place of bust
ness will be sufficient to hold an endorser, al
though the holder do not inquire for the pres
ent residence of the maker or endorser, or at
makers last residence. Exceptions sustained
No. $685. Aaron Clafin vs. Daniel L. Thay-
er. Metcalf, Judge. 1t is good ground for
dismissing an action of replevn that officer
took bond with but one surety. And where
an affidavit of defence, and motion to dismiss
for that cause, are filed simultaneously, de-
PENDANT will not be held to have waived the
objection. Action dismissed.
No. 1914, Mary Ann Hoy VS.. Peter Morris
and Tr. Merrick, Judge. Where confden-
tial communication between client and counsel
is overheard by third person, such person
may testify thereto. Communications to
counsel are only SO far privileged that the
counsel cannot be permitted to testify to them
Exceptions overruled.
No. 1916, Peter Goulding vs. VIM. o. SWEET
Bigelow, Judge A mortgage of personal
property which expressly conveys call the per-
sonal property in and about Herbert Hall, ="
conveys family carriage then on the premises
under this general charge, although other ar
tlcles and some of smaller value are expressly
enumerated, and this is not. Evidence that ri
the time of the delivery of the mortgage the
mortgagor pointed out the carriage as part OF
the property intended to be conveyed, is admis.
able. Exceptions overruIed
No. 1896, ii. ID. Stone ct al. VS.. BENJAMIN
Walker, continued nisi for advisement.
No. 997, Lindall Freeman ct al. vs. John M
McCaw Exceptions waived, Judgment on
verdict for defendant.
No. 1913, Worcester county Institution for
Savings, VS.. Isaac Davis. Shaw, Chief Jus
tice Where defendant signed guaranty
"For value received, and waving right tc
demand and notice, guarantee to the Wor.
cester County Institution for Savings a pro
missory note hereto annexed, dated January /
1851, and payable on demand, for $1,000, with
interest semi.annually, signed by A. M. M. as
principal, and A. M. and W. T. NJ as sureties
It is not competent for him to show by paro
In defence to an action on such guaranty, that
no note was annexed thereto when he signed
1t, and that plaintiffs afterwards annexed q
note which was witnessed and ON which several
payments OF interest had been made, or that
plaintiffs agreed when guaranty was signed tc
collect the note of one of the sureties or thai
since the guaranty the plaintiffs had been gull
" OF slackness in not duly collecting the note
ana IN the mean time the principal and one o.
the sureties had become insolvent and remed ,
against the estate of the other surety who haf
deceased, was barred by lapse Of time. Elk