of collector" will hold him and his sureties to pay over money which
he has actually collected after the delivery of the bond. Booihhay v.
Giles, 68ā160.
23. So also will an instrument, containing the same terms, but not
under seal, voluntarily and deliberately made and delivered in lieu of
a bond. Ih.
24. Its acceptance by the assessors in lieu of a .statute bond is a
sufficient consideration to cover all official delinquencies, so far as not
paying over money actually collected after such acceptance is con-
cerned. Ih.
in. TO OTHERS.
25. A collector of taxes who, after selling property for the payment
thereof, fails to restore the balance to the owner after deducting the
taxes due and unpaid and legal expenses of sale is a trespasser, ah
initio. Garter v. Allen., 59 ā 296.
26. Thus, where a collector of taxes for three successive years
applied a portion of the proceeds of a distress sold according to law
to a tax of the second year already paid, and another portion to illegal
charges, and made a written account thereof accordingly, which, with
the balance as therein appearing, he tendered to the owner, held, that
the collector was a trespasser ah initio. Ih.
27. If a collector of taxes keeps property, which he has seized on
his warrant, beyond the time within which it could be legally sold, he
becomes a trespasser, ah initio, and the owner may replevy it. Farns-
worth Company v. Rand, 65 ā 19.
28. Where a collector, after selling enough to pay the tax and
expense of sale, sells other personal property distrained, he will not
become a trespasser ah initio as to any of the articles seized, except
such as he has sold in excess of his authority. Williamson v. Dow,
32 ā 559, explained. Seeking v. G-oodale, 61 ā 400.
29. Sale op Distbess. The words "the distress shall be openly
sold," as used in R. S., c. 6, Ā§ 104, are not io be construed as author-
izing a collector of taxes to sell any additional articles after enough
have been sold to pay the tax committed to him and the expense of
sale. Ih.
30. A collector of taxes is not bound to sell distrained property
within the limits of the town where it is seized. Garville v. Additon,
62ā459.
31. When Peoteoted by his Waeeant. A collector of taxes
legally qualified, acting within the scope of his powers under a warrant
from competent authority, is protected against all illegality but his
own. N'owell v. Tripp, 61 ā 426. GarviUe v. Additon, 62 ā 459.
94 COLLECTOR ā COMPLAINT.
32. Although the person taxed was not a resident of, or liable to be
taxed, in the town. Nowell v. Tripp, 61 ā 426.
See Tax.
Town, 3.
COMPLAINT.
1. When it is provided by law that the duties of the judge of a
municipal court in relation to criminal business may be performed by
the clerk "whenever the said judge shall be engaged in the transaction
of civil business, or be absent from the court-room," an allegation in
the complaint that the judge is "busy in court," does not authorize the
clerk to perform the duties of the judge. Guptil v. Richardson, 62
ā257.
2. Nor will a subsequent decree of the forfeiture of liquors seized by
virtue of a warrant issued by the clerk upon such complaint remedy
the error. lb.
3. An allegation in a complaint for search and seizure that intoxica-
ting liquors are kept and deposited by the defendant with intent to
sell them in this State in violation of law is a sufficient allegation that
the keeping and deposit is unlawful. State v. Connelly, 63 ā 212.
4. Complaints made to the municipal court of the city of Portland
need not contain a recital of the city by-laws on which they are
founded. O'Malia v. Wentworth, 65ā129.
5. In a complaint for a violation of the law prohibiting the sale of
intoxicating liquors technical accuracy is not required in the averment
of a former conviction for a similar offense. State v. Wentworth, 65
ā234.
6. When the respondent in a criminal case appears generally and
pleads not guilty to a complaint he thereby waives all objections to
matters of form in the warrant. State v. Megan, 67 ā 380.
See Insane Hospital.
Intoxicating Liquors, 22, et. seq.
Officee, 12.
Waeeant.
COMPKOMISE.
See CoNTEACT, 17. Accoed and Satisfaction, p. 7.
CONDITION.
I. WHEK PRECEDENT OR SUBSEQUENT.
II. FORFEITURE AND PROCEEDINGS THEREUPON.
III. GENERALLY.
CONDITION. 95
I. WHEN PRECEDENT OR SUBSEQUENT.
1. Whether a condition in a contract is precedent or subsequent is
a question of intent, to be determined by considering the language
of the whole contract, the nature of the act required, and the subject
matter to which it relates. Sucksport <& Sanger R. R. Co. v.
Brewer, 67ā295.
2. The defendant agreed in writing, that on the execution and de-
livery to him by the directors of the railroad of certain mortgage
bonds mentioned in said agreement, he would pay the assessments
theretofore made to the amount of the par value of the stock previ-
ously subscribed by him. Held, that the delivery of the bonds was
a condition precedent to the payment of the assessments. Belfast
<b M.B. R. Co. V. Moore, 60ā561.
3. Where railroad stock is subscribed for, in behalf of a town,
upon the condition that the road "shall be built through the town on
the line as run by the engineer, with a suitable depot for the conven-
ience of the public," ā such a condition is a condition subsequent, and
will not defeat an action for the amount subscribed, although the
condition had not been performed when the action was commenced.
Belfast & M.L.R. R. Co. v. Brooks, 60ā568.
4. A subscription, by a town, to the capital stock of a railroad
company, "upon condition" that the road be located through a speci-
fied town "satisfactory to the selectmen of said town," is, upon con-
dition, precedent. Bucksport <& Bangor R. R. Co. v. Brewer,
67ā295.
5. The subscription cannot be enforced unless the company shows
a location satisfactory to the selectmen. lb.
6. It is not sufficient for the company to show that the "road was
located wisely, prudently and judiciously for the interests of said
corporation and said town." lb.
7. The defendant signed an agreement to take a certain number of
shares in a railroad corporation upon condition that no assessment
should be made upon the shares until the full amount be secured for
the completion of the road to Newport. Held, that the condition
was precedent. Belfast & M. L. R. R. Co. v. Cottrell, 66 ā 185.
8. A subscription for stock in a railroad company contained the
clause, "no subscription shall be binding until the sum of one hundred
thousand dollars shall have been subscribed by good responsible par-
ties," also, "It is understood that the capital stock of the contem-
plated railroad shall be three hundred thousand dollars." Held, that
the last clause was not a condition precedent to the subscriber's
liability upon his subscription. Bucksport <& Bangor R. R. Co. v.
Buck, 65ā536.
9. When the subscription for stock in a corporation, by the defend-
ant, contains a stipulation relating to changes in the charter, a clause
in the subscription "such alterations, if any, to be in accordance with
a vote of a majority of the board of directors, legally chosen by the
stockholders of the road," if it is anything more than an expression
of the wishes of the defendant, or directory to the board of direc-
tors, it is a condition subsequent and constitutes no bar to an action
to recover the subscription. Bucksport & Bangor R. R. Go v
Buck, 68ā81.
96 CONDITION.
10. A town voted to issue bonds in aid of a railroad "at such time
as the raih-oad company shall build its railroad to Canton Mills, pro-
vided it shall be completed to Canton Mills, and the cars running and
transporting freight and passengers on or before Jan. 1, 1870," other-
wise the vote to be void. Held, that the condition required a com-
pletion of the road as well as a running of the cars. Portland S
Oxford Central B. E. Co. v. Hartford, 58ā23.
11. Where, "in consideration of having a meeting-house erected
and continued upon it" the owner of a certain lot of land duly exe-
cuted and delivered to the "proprietors of the South Chapel, in
Fryeburg," a deed thereof, with the stipulation therein that the "lot
being given for a meeting-house lot, is to revert to me, unless it should
be improved for that purpose," habendum "to the said proprietors and
their successors forever, provided it be improved for the above pur-
pose," ā an estate in freehold upon condition subsequent passed.
Osgood V. Abbott, 58 ā 73.
12. A grant of a township of land upon condition that the grantee
settle thereon a certain number of families within a specified time, is
upon condition subsequent. Chapman v. Pingree, 67 ā 198.
13. A conveyance upon condition subsequent vests the title in the
grantee subject to its being revested in the grantor by entry for a
breach of the condition. lb.
14. By virtue of Public Laws of 1872, c. 8, Ā§ 3, the previous sec-
tions thereof (changing the place of holding the supreme judicial
court from Norridgewook to Skowhegan, and authorizing the county
commissioners to erect a court-house in the latter place), were to be
void, unless the town or citizens of Skowhegan should, on or before
March 1, 1872, without expense to the county, provide suitable room
and other accommodations for the court and ofBcers, to the accept-
ance of a majority of the county commissioners ; and secure to the
county the use thereof for the purposes, and during the time therein
specified, and the conveyance of a suitable site in Skowhegan for the
county buildings. By Ā§ 4, when such room and accommodations had
been provided, the county commissioners should cause the records in
all the county oflices, with the records and files of all the courts, to
be removed to the places prepared in Skowhegan, and cause notice
of the facts to be published as therein directed. Held, that the legis-
lature did not intend to make the selection of a site on or before
March 1, 1872, mentioned in Ā§ 2, an indispensable pre-requisite to the
taking effect of the act. Walton v. Orenwood, 60 ā 356.
15. Also held, that the conditions provided in Ā§ 3 did not require the
town or its citizens to furnish a jail. lb.
16. A saw mill owned by A. and W. having been destroyed by fire,
A. proceeding under K. S., 1841, c. 86, rebuilt the same, and subse-
quently, in consideration of the full value, conveyed to the plaintiff
one-half the privilege and all the mill, subject to the claims of M. in
said mill, and at the same time gave an obligation to procure a release
from M., or fully indemnify the plaintiff for his claim. Afterwards,
not being able to procure a release from M., A. gave the plaintiff the
bond in suit, referring to the conveyance, and conditioned to procure
a release from M., or save the obligee harmless from all claims by M.
or his assigns, and closing as follows, "it is hereby agreed that said
obligee shall keep a full and correct account of the amount of lumber
CONDITION. 97
sawed in the mill, and the expense of all repairs on the mill, and at
all times secure and afford to said A. free access to the books of ac-
count, to enable him to settle his claims with said M. and procure his
release. Held, that the last clause was not a condition precedent.
Connor v. Atwood, 51 ā 100.
II. FORFEITUEE AND PROCEEDINGS THEREUPON.
17. Entry. Notwithstanding the breach of a condition precedent
the estate will continue in the grantee until defeated by an actual en-
try made for the purpose of claiming a forfeiture by some one having
the right so to do. Osgood v. Abbott, 58 ā 73.
18. The heirs of the grantor, after the death of the latter, and after
breach, may make such entry. lb.
19. Where lands are conveyed upon condition subsequent, the right
to enter for a forfeiture can be exercised only by the original grantor
or his heirs. Craig v. Franklin County, 58 ā 479.
20. How MADE. An entry upon land for condition broken must
be made for the purpose of taking the land back, and the intention
must be sufficiently shown either by the act itself or by words ac-
companying it. Jenhs v. Walton, 64 ā 97.
21. It is not necessary to turn the grantee off the premises, nor take
possession in his presence, nor to give actual notice to him. Still
the act must be of such a character as would serve to indicate to the
person in possession that his right to the locus was regarded as ter-
minated. Jenhs V. Walton, 64ā97.
22. Rbliep feom Foefeitttee. Where the grantor in a condition-
al deed, after entry for condition broken, has obtained a verdict in a
suit to obtain possession of the land conveyed, the court has probably
the power to grant a motion to ascertain what sum of money would
be sufficient to relieve the forfeiture, and, upon the payment of such
sum and costs, stay further proceedings in the suit. Jenhs v. Walton,
64^97.
23. But the court will not grant the motion when there is no evi-
dence to show whether it is meritorious or not. Ih.
24. Where land is conveyed upon condition subsequently to be
performed'by the grantee, and the land is reclaimed by the grantor
for condition broken, the grantee can not recover back that part of
the consideration paid, nor can the grantor enforce the payment of
notes given for a part of the consideration and remaining unpaid.
lAttle V. Thurston, 58 ā 86.
See Equity, 67.
III. GENERALLY.
25. Liability to Peeeoem. Acceptance of Deed. Where a
son having conveyed a farm to his father, in mortgage, conditioned
for the support of the father, died childless, and the father subse-
quently conveyed the farm to another son by a quit claim deed, the
consideration being expressed as the conditions to be performed
agreeably to the mortgage of the deceased son, the acceptance of the
deed rendered the grantee personally liable to perform the conditions
mentioned, but created no lien upon the land. Norria v. Laheree,
58ā261.
7
98 CONTLICT OP LAW.
26. Abeogatiok of Condition by Contetance. Where one con-
veys land upon condition subsequent, and afterwards releases all his
claim to the premises to a stranger, the only effect of the release is to
abrogate the conditions annexed to the original grant. Craig v.
Franhlin County, 58 ā 479.
27. Peeformance. If a creditor takes a cash order, drawn on
himself, in payment of his debt, on condition that the amount of the
order is due from him to the drawer, the payment is absolute if in
fact the amount is then due, though it is not ascertained until some
time after. It is the fact and not the ascertainment of it that con-
stitutes performance of the condition. Waite v. Vose, 62 ā 184.
28. When it becomes Absolute. A note payable "when I sell
my place" is not payable upon any contingency but absolutely, and if
the maker suffers a levy to be made upon the place and becomes
unable to sell, his liability upon the note at once accrues. CrooJcer v.
Holmes, 65 ā 195.
29. Waiver. He alone for whose benefit a condition is made can
waive it. Ockington v. Law, 66 ā 521.
30. When promissory notes are given for a conveyance of a patent
right, and at the same time a contract of sale of the right is made
and signed by both parties, which provides that if there shall be
default in any of the payments, then the deed shall become void
and of no effect to convey the right, and the purchaser shall forfeit
the payments already made, the condition is for the benefit of the
seller only. The purchaser can not elect to consider the contract
void, after part payment, and decline payment of the remainder of
the notes. lb.
31. An action can not be maintained upon a contract which con-
tains two conditions to be performed by the plaintiff, one subsequent
which has been performed, and one precedent which has not been per-
formed by him. Bucksport d> Bangor M. B. Co. v. Brewer, 67 ā 295,
See Agency, 20, p. 14.
Insurance, 23, 25, 32.
Landlord and Tenant, 29, 31, 36.
Patmjbnt, 11, 16, 17.
Trustee Process, 81.
Sale, 20, 23.
CONFLICT OF LAW.
I. LEX LOCI.
II. LEX FOKI.
I. LEX LOCI.
1. The lex loci is presumed to be the same as the lex fori, unless
the contrary is shown. McKenzie v. Wardwell, 61 ā 136.
2. Where contracts are made and to be performed in a foreign
country, their legal effect must be determined according to the laws
of that country. Lindsay v. Sill, 66 ā 212.
CONFLICT OF LAW. 99
3. Where no place of payment is named in a promissory note, it
must be construed according to the law of the place where it is made.
Stickney v. Jordan, 58 ā 106.
4. Compound Interest may be recovered in this State, on a note
made in New Hampshire, when such interest is recoverable by the
laws of that State. Ih.
5. The plaintiff, a citizen of Vermont, there delivered to one P.
certain chattels and received from him his promissory note, and also
a writing stipulating that the chattels were to remain the property of
the plaintiff until the note was paid. By the laws of Vermont the
contract was valid without record. Held, that the title to the property
remained in the plaintiff after it was brought into this State, by vir-
tue of lex loci. Drew v. Smith, 59 ā 393.
6. Payments. The defendant, at London, England, agreed to pay
the plaintiffs a commission on the charter of a vessel. The amount
of the freight due on the charter party was agreed upon, and was pay-
able in hard Spanish dollars. Held, that the plaintiff was entitled to
judgment for the sum in coin of the United States which would be
the equivalent of the sum in Spanish dollars which he would have
received had the commission been paid in London, and that execu-
tion should issue specifically for the coin. Stringer v. Coombs,
62ā160.
7. Insolvency. A note given by the defendant to the plaintiff in
another State, while both were residents of that State, and included
in a discharge in insolvency regularly granted under the laws of that
State, while both parties were still citizens thereof, can not be
enforced here. Clark v. Cousins, 65 ā 42.
8. Illegal Conteact. A contract, prohibited and void by the
law of the State where it is made, will not be enforced in another
jurisdiction. Kennedy v. Cochran, 65 ā 594.
See Sale, 20.
II. LEX FORI.
9. In an action on a note given in another State, if the rules of
law in that State are more favorable to a defense based on the fact
that the note was given for intoxicating liquors than they are in this
State, the defendant must prove what those rules are, or they wiU not
avail him. Hapgood v. N'eedham, 59 ā 442.
10. JuEiSDiOTiON. Probate. When administration is, without
fraud, commenced upon the assumption that the deceased was a citi-
zen of this State, and no appeal is taken from the decree granting
administration, final distribution must be made according to the laws
of this State, and not according to the laws of the State where in
fact the deceased had her domicile at the time of her death. Record
V. Howard, 58ā225.
11. Penalty. Usury. When the laws of another country impose
upon a person receiving interest above six per cent, a forfeiture of the
principal sum and all the interest, and a suit is brought upon the
security, in this State, the defendant can not recoup usurious pay-
ments made after the debt was overdue, the forfeiture being in the
nature of a penalty which could be enforced only in the courts of the
country where the contract was made. Lindsay v. Hill, 66 ā 212.
100 CONSIDERATION.
CONSIDERATION.
I. WHAT IS A SUFFICIENT CONSIDERATION.
II. WANT AND FAILURE OF CONSIDERATION.
III. SEAL.
I. WHAT IS A SUFFICIENT CONSIDERATION.
1. A. loaned money to B., taking the bank check of the latter, made
payable to C. B. at the same time agreed that C. should indorse
the check, and immediately, upon receiving the money, went to C,
informed him of the agreement and requested him to indorse the
check. Thereupon C. went to the oiBce of A. and indorsed it. Held,
that the loan to B. was a sufficient consideration for the indorsement
of C. Emery v. Hobson, 62 ā 578.
2. Where at the request of the party with whom he deals, one
makes his promissory note, which is to be a partial payment for work,
payable to a third person, who is a creditor of the party with whom
he contracts for the work, and it is credited by the payee to such
party in good faith, the maker can not set up a failure of considera-
tion as between himseU and the party with whom he deals, in defense
of a suit upon such note by the payee. South Boston Iron Co. v.
Brow7i, 63ā139.
3. Delay. The acceptance of a negotiable promissory note, pay-
able at a future day, for a pre-existing debt, suspends the right of the
creditor to enforce payment of his debt until the maturity of the
note, and this suspension alone is a sufficient consideration for the
note. Andrews v. Marrett, 58 ā 539. Tork v. Pearson, 63 ā 587.
Thompson v. Gray, 63 ā 229.
4. The charter of a mutual marine insurance company provided
that the company, for the better security of those concerned, might
receive notes for premiums in advance of persons intending to receive
policies, and might negotiate such notes for the purpose of paying
claims, or otherwise in the course of business, and also provided for a
compensation to be paid the signers. The by-laws provided that the
company, for the better security of its dealers, might receive approved
notes in advance, and allow a compensation to_ the signers. The
defendant and others agreed in writing to advance their notes for pre-
miums in accordance with the charter and by-laws. Held, that notes
so given for an open policy under which no insurance was effected,
were not void for want of consideration. Howard v. Palmer, 64 ā 86.
5. When Implied. The fact of a sale implies a consideration,
and, in the absence of proof of fraud or deception, an adequate one.
Dem,ing v. Houlton, 64 ā 254.
6. Indemn^itt. If one receives the permission of the plaintiff or
defendant in a suit to prosecute or defend the same, promising to hold
him harmless against costs, such permission is a sufficient consid-
eration for the promise to hold the nominal party harmless from
costs. Industry v. Starks, 65 ā 167.
7. Without the statute of 1871, c. 186, a railroad company would
be liable to a city or town for the amount of damages which such city
or town had been compelled to pay by reason of a defect in one of its
CONSIDBEATION. 101
Streets caused by the negligence in the construction or maintenance
of a railroad crossing on such street ; and if the company bad been
properly notified of the original suit, and the suit was defended by the
city in its behalf and on its request, it would be liable for the costs as
well as the damages. Portland v. Atlantic & St. L. H. It. Co., 66 ā
485.
8. There is therefore sufficient consideration for a contract on the
part of the railroad company with the city for the defense of such a
suit, and for a promise to rejDay the city such sum as it should be
compelled to pay, therein. lb.
9. If a patentee, in consideration of a royalty, gives to another a
license to use the patent, the validity of the patent being then in liti-
gation, and the facts are well known to both parties, the licensee can
not defend a suit for the royalty, for the use of the patent for the time
the contract continues in force, on the ground that the patent was
void for want of novelty, although it is afterwards declared void for
that reason, by the court of final jurisdiction. Jones v. Jiurnham,
67ā93.
See CoLLECTOE, 13, p. 92.
Adequacy op Consideeation, see Release, 3.
II. WANT AND FAILUKE OP COKSIDEEATION.
10. An assertion in his bond for the sale of land that the obligor is
"possessed and seized in fee" of the premises, when in fact he has
only a bond for a deed thereof from the real owner, is, between the
original parties thereto, a good defense .to a promissory note given in
consideration of the bond. Coburn v. Haley, 57- ā 346.
11. Where one performs services for another without his knowledge
or consent a subsequent promise to pay for such services is without
consideration. Such promise may, however, afford evidence from
which a jury may infer a request. Sanderson v. Urown, 57 ā 308.
] 2. Where the defendant, in accordance with the terms of a com-
promise, paid to the plaintiff the amount claimed of him less fifty
dollars, and afterward voluntarily gave the plaintiff his note for the
fifty dollars; held, that there was no consideration for the note.