CASES ARGUED AND DETERMINED IN THE SUPREME JUDICIAL COURT, FOR THE COUNTIES OF PLYMOUTH, BARNSTABLE, BRISTOL, AND DUKE'S, OCTOBER TERM, 1821, AT PLYMOUTH. THE INHABITANTS OF ATTLEBOROUGH versus THE INHABITANTS OF HARWICH. The son of an inhabitant of Harwich, who remonstrated against the incorporation of Brewster, who removed with his father from Harwich before coming of age, and acquired no new settlement in his own right, was held to retain his derivative settlement in Harwich. ASSUMPSIT for money expended by the plaintiffs, in the support of one Malachi Nickerson and his wife and children, whose legal settlement the plaintiffs aver to be in Harwich. The parties agreed that the pauper had no settlement in Harwich, unless it was a derivative one under his father, Uriah N., who had a settlement in that town prior to and until the incorporation of the town of Brewster, and was one of the remonstrants against the said incorporation, and complied with all the requisitions prescribed in ATTLEBOROUGH vs. HARWICH. the second section of the act incorporating Brewster (1), to entitle him to continue an inhabitant of Harwich, although living within the exterior limits of Brewster. Several years after the passing of the said act, the said Uriah removed to the town of Orleans, the pauper being then a part of his family, and coming of age after such removal, and before the said Uriah acquired a settlement in Orleans. [ * 399 ] *If upon these facts the Court should be of opinion that the legal settlement of the pauper was in Harwich, judgment for a sum agreed was to be rendered for the plaintiffs upon the default of the defendants; otherwise the plaintiffs were to become nonsuit. [By the section of the statute above referred to, it is provided that the remonstrants against the incorporation of Brewster, conforming to certain requisitions prescribed, "shall have liberty to remain, with their families and estates, to the town of Harwich. A. Cushman, for the plaintiffs, relied on the above provision of the statute, as establishing the pauper's settlement derivatively from his father, in Harwich; and, to show that he gained no new settlement with his father in Orleans, cited the case of Springfield vs. Wilbraham (2). Reed, for the defendants, agreed that no settlement had been acquired by the pauper in Orleans. But he contended, upon the authority of the case of Dillingham, Ex'r, vs. Burgis & Al. (3), that the privilege granted by the act of incorporation to the remonstrants, was personal to them, and had no operation upon their children after they were of age. It would operate a great hardship upon the defendants, if this provision shall be construed to fix the estates of the remonstrants to Brewster, and at the same time to leave their descendants chargeable to Harwich. PARKER, C. J., delivered the opinion of the Court. The pauper's father had his settlement in Harwich, before the act to incorporate Brewster. His wife and children had their settlement also under him, in Harwich. By that act, neither the habitancy nor the settlement of the father, nor of any of his family, was changed; for by the second section they were to remain, while they constituted his family, as if no division of the town had taken place. When he removed to Orleans, he carried with him his right to a settlement in Harwich, which continued until he gained [* 400 ] a new settlement in Orleans. The settlement of * his family likewise continued. When Malachi, the pauper (1) Stet 1802, c. 76. (2) 4 Mass. Rep. 493. (3) 16 Mass. Rep. 58. ATTLEBOROUGH vs. HARWICH. came of age, he was capable of gaining a settlement for himself, and no longer depended upon his father for his settlement. But as he never gained any, he retained the settlement derived from his father in Harwich. It has been argued that the provision, in the section referred to, established a personal privilege in the remonstrants, at whose instance the provision was introduced, and in their families; so that when one of the remonstrants should die, his children coming of age would be inhabitants of Brewster. This is true; but as the act did not operate upon the children, any more than upon the father, at the time it was passed; and although, as they came of age, they would be inhabitants of Brewster if they continued to reside within the limits of that town, they would not have settlements there, by virtue of the incorporation. The pauper, however, did not remain there; but went, while under age, with his father to Orleans; so that he never had either habitancy or settlement in Brewster. Defendants defaulted. SAMUEL ARNOLD AND OTHERS versus ERASTUS LYMAN A, a debtor of B, conveys property to C, who, in consideration thereof, engages in writing to pay certain debts of A, and particularly that which he owes to B. -It was holden that C was liable to B, for the amount of A's debt to him in an action of assumpsit. THIS was an action of assumpsit, founded upon the following agreement, subscribed by the defendant, viz., "Whereas Hezekiah Hutchins hath this day assigned, transferred, made over and sold to me, certain notes, accounts, demands, goods, wares, and merchandise, as per invoice and schedule annexed; with full authority to collect, receive and make sale of them to my own use; now therefore, in consideration of the premises, I do hereby promise and engage to assume and pay the following demands against the said Hutchins, as follows, to wit, — also one note to Samuel Arnold for two hundred and thirty-seven dollars, and to save the said Hezekiah harmless from all costs and expenses on account thereof. In witness * whereof," &c. There was also a [* 401 ] count for money had and received. On the trial which was had upon the general issue before Jackson, ARNOLD & AL. vs. LYMAN. J., at the last April term at Taunton, it appeared that on the 18th of October, 1815, the said Hutchins, a citizen of the county of Hampshire, was indebted, in the sum of 237 dollars, 79 cents, to the plaintiffs, who were citizens of Rhode Island, doing business in company, under the firm of "The Country Manufacturing Company ;" and he then, by his agent, gave to said company his note for that sum, payable in four months from said date. On the 21st of June, 1816, the said agreement was made between Hutchins and the defendant. The goods and effects therein mentioned were then delivered to the defendant by Hutchins, with a schedule or inventory thereof; but no inventory was preserved by Hutchins, and none was produced at the trial. When the note was given to the plaintiffs, Arnold was the agent of the said company; and the agent of Hutchins could not recollect whether the note was made payable to Arnold, or to the plaintiffs by their said name or firm; but he knew that it was given to Arnold, as the agent of the company. It did not appear that there was any other note due from Hutchins to Arnold, or to the plaintiffs; and it was not disputed that the note before mentioned was the same that was mentioned in the above agreement, as the note to Samuel Arnold for two hundred and thirty-seven dollars. On these facts the judge directed a verdict for the plaintiffs for the amount due on said note; subject to the opinion of the whole Court on the question whether the plaintiffs were entitled to recover in this action; and the verdict was to be confirmed, or altered; or to be set aside, and a verdict entered for the defendant, according to the opinion of the Court. the declaration. W. Baylies, for the defendant. The evidence does not support To sustain the count for money [* 402 ] * had and received, the defendant must actually have received money (1). This is a general principle: it is for the plaintiff to point out the exception, if there be any, that will embrace his case. In the special count, it is stated that the promise was made to the plaintiffs, when in fact it was made to Hutchins. "If the promise be made to a third person, for the benefit of the plaintiff, the declaration must state it to have been made according to the fact" (2); and so appears to have been the declaration in the case of Dutton vs. Poole (3), as cited in Buller's N. P. 133. Further, the note described in the declaration, and produced at the trial, does not correspond with that mentioned in the agreement (1) 1 Chitty on Pleading, 341.-3 B. & P. 559, Whitwell vs Bennett. ARNOLD & AL. vs. LYMAN. between Hutchins and the defendant; and there is no averment that they are the same. But the plaintiffs are not entitled to recover, independently of these objections. The written agreement is the foundation of the action. To that agreement they are not parties. The promise is to Hutchins. It is, in effect, an undertaking by the defendant to indemnify him. The consideration moved entirely from Hutchins. The plaintiffs are strangers to the consideration, and can therefore maintain no action (4). The action of Jackson vs. Mayo & Al., Ex'rs (5), was on a promise by the testator, to account with the plaintiff's daughter for money received of the plaintiff. The husband of the daughter was held a competent witness, upon the ground, it is presumed, that the daughter had no interest in the contract. The plaintiffs may, perhaps, rely on a dictum in 1 Chitty on Pleading, 5, as an authority against the position now taken for the defendant. It is there stated that, when a contract not under seal is made with A, to pay B a sum of money, B may sustain an action in his own name. But several of the cases, there referred to, have been examined, and do not support the principle, as thus broadly laid down. It is unquestionably true, as a general rule, that *no person can maintain an action upon an agreement [* 403 ] to which he is not a party. This rule, it is acknowledged, admits of exceptions. If a contract be made with an agent or attorney, the principal may sue in his own name. If money is delivered by A to B, for the purpose of being paid over to C, this latter may maintain an action against B for the money. The person to whom the promise is to be performed (though not the party contracted with), being the meritorious cause of it, can take advantage of the promise. These, it is apprehended, are all the material exceptions, that can fairly be deduced from the adjudged cases. The present action, it is contended, is within the rule, and not within any of the exceptions. Cozzens, for the plaintiffs. It was very early settled that, where A delivers money to B, to be paid to C, an action for money had and received lies for A (6). So if goods are delivered in like manner to one person, to be delivered to another, the latter may sustain an action for the recovery of them (7). (4) 1 Selwin's N. P. 45.-1 Str. 592, Crow vs. Rogers.-1 Vin. Abr. 334, Clifford vs. Berry.-2 Lev. 11, Norris vs. Pine.-1 Roll. Abr. 30. (5) 11 Mass. Rep. 147. (6) 1 Cranch, 428, and the cases there cited.-3 Cranch, 495.- Com. Dig. Action of Assumpsit, E.-2 Com. on Contracts, 566. (Bac. Abr. Actions on the Case, A. VOL XVII. 28 325 |