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age of twenty-one years. By the terms of the indenture the plaintiff covenanted, among other things, that he would provide suitable board, clothing, nursing, attendance, and other necessaries for the comfortable support of the minor in sickness and health — would give him an education sufficient for bim to transact any business as a farmer or mechanic (providing he has capacity) – pay said minor at the age of twenty-one years, one hundred dollars, and give him two suits of clothes throughout, one to be a common every-day suit, and the other a meeting suit. Providing said minor should continue to be a healthy boy, and be a faithful servant during his minority.” The minor became permanently disabled by an accident for any bodily labor. Held, that the condition relative to the minor's continuing to be a healthy boy was not to be limited to the stipulations for the payment of the one hundred dollars and the suits of clothes, but extended to all the conditions of the plain. tiff, and that the indenture after the injury was void at his election.
A declaration in assumpsit that the defendant heretofore, to wit, on the 5th of October, promised to pay for the support of the pau. per at the rate of five dollars a week for the first two weeks, four dollars a week for the next two succeeding weeks, and three dollars a week for the remaining time, is supported by proof of a contract made on the last of October or first of November to pay at those rates for the support, from the time of making the contract.
CAMPBELL v. COOPER.
Action for enticing away a serrant — Infant, when a servant.
To maintain an action for enticing away a servant, there must be proof of a service owing to the plaintiff by virtue of an agreement on the part of the servant himself, or some other person having authority to bind him to the service.
An agreement by the father for the services of his minor child, ceases to be binding upon the minor at the death of the father, unless made by indentures of apprenticeship in conformity with the provisions of the statute : and a parol gift of the child by the father gives no right to the services of the child after the death of the father.
The assent by the infant to a contract made by the father for services to be rendered by the infant for a time which extends beyond the life-time of the father, may be evidence of the infant's agreement to render the service for so much of the time as had not ex. pired at the father's death ; and such agreement gives the right to the service until such time as it is avoided by the infant.
The act of the infant in leaving the service in violation of the agreement, and under circumstances indicative of an intention to avoid it, constitutes an avoidance, and the master has no right to the service under such agreement from that time.
No action lies against a third person for holding out inducements to an infant rendering service under such agreement to avoid the agreement by leaving the service.
Disclosure of trustee. The owner of real estate made a conveyance of the same to the widow of an intestate, upon a bargain made by her father, for $625; and notes against the grantor, belonging to the estate, to the amount of $475, were delivered to him. No administration had been taken upon the estate, and there was one minor child and other heirs to the same. It did not appear who paid the balance of the $625, or who gave up the notes, but the father of the widow, with his wife, moved into the house, and resided there with the widow and her family. An adult and married son of the widow, also lived in the house with the others. He made certain repairs upon the same, but no request to do them, from any one, was shown. Upon process served upon the widow, to charge her as trustee of the son, for the repairs made :- Held, that she was not the owner of the premises, and upon the facts above stated, could not be charged for the repairs.
To charge a trustee as debtor of a principal a disclosure made, it must appear from the disclosure what amount is due, so that the court can definitely determine the sum.
Osgood v. GREEN.
Cattle impounded for nominal damages. Where a statute provided that the damages done by cattle, taken in the enclosure of a party damage feasani, might be appraised by persons appointed by a justice of the peace, upon notice to the parties, and that their decision, whether any damages were done should, upon hearing had before them, be final and conclusive, and that the report should be delivered to the justice: – Held, that the justice was the mere depositary of the report ; that no action upon it was to be had by him on its return, and that no notice of the time and place where it should be delivered to the justice was necessary to be given to the parties.
Cattle, taken in the enclosure of a party, cannot be impounded for a mere nominal trespass, where no damages are done. And where cattle were impounded, and the appraisers decided that no damages were done : - Held, that replevin against the impounder could be maintained for the cattle.
MORRILL v. Foster. Declarations in regard to lines of land — Statements of deceased relative.
Where the question was in relation to the lines of land, formerly holden in dower, it was held, that the whole of the report of the committee, appointed to set off the dower and make partition among the heirs, was admissible in evidence.
The declarations of a niece, now deceased, as to the time of an aunt's death, are admissible, though it appears that she lived at a distance, and other witnesses were present at the decease and funeral.
The declarations of a person deceased, as to the line of the dower, were held inadmissible, where he was seized of the residue in fee, and of a life estate in the dower, his interest being to enlarge his estate in fee.
An inventory, made by a plaintiff, as administrator of the estate of the person under whom he claims, in which the estate was not included, was held admissible as an admission, that the deceased did not own it.
Evidence, that a party, many years ago, started with a sleigh, saying he was going to W.'s for a load of goods, and presently returned with a load of goods of the value of his wife's interest in land, is no evidence of a conveyance of the land.
The declarations of a witness, though admissible to contradict his evidence, are not evidence of the facts stated; but if one of the parties claims, under such witness, and the declarations were made, while the witness held all the interest which that party now claims, they are admissible as evidence in chief.
CONCORD v. PILSBURY.
Set-off to an action of debt on bond. In a debt on bond against a principal and his sureties, it was held, that a demand due from the plaintiff to the principal debtor may be set-off. The amount of the set-off, if not sufficient to bar the action, will be allowed against the sums found equitably due upon the bond, upon a hearing in Chancery. If there is another action pending against the same debtor alone, the plaintiff cannot require him to plead his set-off in that action. Nor is it any objection to such set-off, that the bond is given by a collector of taxes for the faithful discharge of his duties in collecting and pay. ing over such taxes.
MANCHESTER AND LAWRENCE R. R. v. Fisk. Action for railroad tolls — Establishment and notice of tariff and time
Evidence. Tolls need not be declared for specifically as such; it will be sufficient, if the indebtedness is declared to be for freight and transportation of goods, or for labor and services, or by any suitable terms to express the true nature of the claim.
It is not necessary that rates of toll on a railroad should be established by the directors personally; it will be sufficient, if they are fixed by the agent of the road under their direction.
Where a printed tariff of tolls is established, each of the papers so printed may be regarded as an original. If this were otherwise, it would be a sufficient explanation of the non-production of one of such printed tariffs, in order to the introduction of secondary evidence, to show that it was required by law to be and was posted at a particular depot.
It is not an objection to a tariff of freights, that it comprises the rates between stations of that road and others on connected roads.
BLANDING v. SARGENT.
Contract not to do business at a particular place — Statute of frauds.
Upon a demurrer to a declaration upon a contract in consideration of $200, to be paid in five years, to do no more business as a physician at Fisherville; held, that what is included in a name, descriptive of a place, is always matter for the jury, and that the uncertainty cannot be taken advantage of by demurrer. It was admitted the contract was not in writing. Held, that the statute of frauds did not apply. The contract may be completely performed within a year, if the promisor should die within that time. And however improbable that may be, it is enough to take the case out of the statute. If the consideration was at once paid, the agreement of the other party would for that cause not be within the statute, though it could not be performed within a year.
STATE v. FERGUSON.
City ordinances. By the provisions of the charter of the city of Concord, power is conferred upon the city council to make and establish ordinances and by-laws for numerous purposes specifically set forth in the charter; among which are ordinances and by-laws “to prohibit the selling or giving away any ardent spirits by any storekeeper, trader or grocer to be drunk, except by innkeepers duly licensed ; and “ to forbid the selling or giving away of ardent spirits, or other intoxicating liquors, to any child, apprentice, or servant, without the consent of his parent, master, or guardian, or to any Indian ;" and this specific enumeration is followed by a provision in the charter that the city council “may make any other by-laws and regulations which may seem for the well-being of the city, provided they be not repugnant to the constitution or laws of the State."
Held, that the power of the City Council to pass ordinances on the subject of the sale of ardent spirits, or other intoxicating liquors, was limited to the cases described in the specific provisions, — that the general provision was to be construed as referring to other matters, properly the subjects of police regulation, than those specifically enumerated ; and that, consequently, an ordinance prohibiting the sale of intoxicating liquors to any person, without a license from the mayor and aldermen, was unauthorized by the charter, and void.
JOHNSON v. GREENOUGH.
Defective declaration in assumpsit — Error. A declaration in assumpsit, that the defendant, on the day of the purchase of the writ, was indebted to the plaintiff in the sum of $60, balance of accounts, and being so indebted, after to wit, on the same day promised to pay, is bad as setting out a promise founded on a past consideration. A judgment, rendered in such case upon default, without an assessment of damages, upon inquiry by the court, or upon the verdict of a jury, is erroneous; and, upon error brought, the declaration cannot be amended, and the judgment being reversed, no other judgment can be rendered in the action.
BADGER v. GILMORE. Revival of debt discharged by proceedings in bankruptcy. An express promise to pay part of a note, discharged by proceedings in bankruptcy, revives the note pro tanto.
Evidence, that the maker, when called upon to testify in a suit upon the note against another party, expressed himself unwilling to testify, and declared that he preferred “ to pay the note himself and would pay it ;” at the same time saying that " a part of it had been paid, but enough remained due upon it to pay the holder," who had purchased it for a smaller sum than appeared to be due upon it, is competent to be submitted to a jury as showing that the maker expressly promised to pay so much of the amount due upon the note as would reimburse the holder for the sum paid by him for it; and revives the note to that amount.
A debt, discharged by proceedings in bankruptcy, is not extin. guished, as by payment, but while it continues under the operation of the discharge it is incapable of being enforced by a suit upon it. The debtor, by an express promise to pay, waives the benefit of the discharge, and the debt is restored to its original condition of a legal liability.
A promissory note, while under the operation of such discharge, may be indorsed, and a new promise made to the indorsee, may be given in evidence to sustain a declaration upon the note by a subsequent indorsee.