Courts.

such sums of money as said sheriff shall have received on such execution, he will forfeit and must pay to the person to whose use he received such money, fifteen per cent. interest thereon while he detains the same after said demand. (a)

Time within which judgment may be obtained where there is no controversy.-On an action where there is no appearance for the defendant, judgment may be obtained at the close of the term when said action is entered.

11. Courts.

The judicial power is vested in a Supreme Court, and County Courts, or Courts of Common Pleas. The former is held once, the latter twice a year in each county of the state. The Chancery Courts have two stated sessions annually in each county.

(a) R. S. 11.

MASSACHUSETTS.

1. ASSURANCES AND EVIDENCES OF DEBT.

2. RATES OF DAMAGES ON PROTESTED BILLS.

3. USURY.

4. FRAUDS.

5. PRINCIPALS, FACTORS, AND AGENTS.

6. LIMITED PARTNERSHIPS, AND LIABILITY OF CORPORATE INSTITU

8. EFFECT OF MARRIAGE UPON THE TITLE TO THE WIFE'S PROPERTY.

9. LIMITATION OF PERSONAL ACTIONS, AND SAVING CLAUSES.

10. EFFECT OF DEATH ON THE RIGHTS OF CREDITORS.

11. MODE OF COLLECTING DEBTS.

12. COURTS.

1. Assurances and Evidences of Debt.

Mutual and open accounts, how affected by limitation of actions. See title, "Limitation of Actions."

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Method of proving book accounts.—The original memoranda of charges made by a party, at or near the time of the transaction to be proved, though not kept regularly in the manner of a day-book, are competent evidence, with the suppletory oath of the party, to prove the items charged, and the jury are to judge of their credit. But every memorandum of a shop-keeper or laborer is not to be admitted as his book. The charges must afford a fair presumption that they were the daily minutes of his business transactions. (a)

If the clerk who made the entries is dead or insane, the book is admissible on proving his handwriting. (b)

Where a tradesman's day-book has marks which show that the items have been transferred to a ledger, the ledger must be

(a) 2 Mass. R. 217. 13 Mass. R. 427. 4 Mass. R. 455. (b) 3 Pick. R. 396.

Assurances and Evidences of Debt.

produced, that the other party may have advantage of any items entered therein to his credit. (a)

Where entries were first made on a slate, and afterwards transcribed upon a book, kept in the ledger form, such book was admitted as evidence to prove the items charged. (b)

Set off of mutual demands.-Mutual debts and demands between plaintiff and defendant in any action, may be set off, subject to the following restrictions:

No demand may be set off, unless founded on a judgment, or a contract, express or implied; nor unless it is for the price of real or personal estate sold, or for money paid, money had and received, or for services, or unless it is a sum that is liquidated, or one that may be ascertained by calculation; nor unless it existed at the time of the commencement of the suit, and then belonged to the defendant, nor unless it is due to him in his own right.

Any demand assigned to the defendant, with notice to the plaintiff of the assignment before the commencement of the, action, may be set off as if originally payable to the defendant.

If the demand set off is founded on a bond or other contract having a penalty, only the sum equitably due will be set off.

The set off will be allowed only in actions founded on demands which could themselves be the subject of set off.

After a demand in set off is filed, the plaintiff will not be allowed to discontinue his action, unless by consent of the defendant. (c)

Bills of exchange and promissory notes,-Grace on: Void, if given for gaming consideration: Provisions as to notes payable on demand.-On all bills of exchange payable at sight or at a future day certain, and on all promissory negotiable notes payable at a future day certain, within this state, in which there is no express stipulation to the contrary, grace will be allowed, as it is by the custom of merchants, on foreign bills of exchange, payable at the expiration of a certain period after date or sight: but these provisions do not extend to any bill of exchange, note, or draft, payable on demand. (d)

All notes, or other securities or conveyances in which the (a) 2 Mass. R. 569. (b) 13 Ib. 427. (c) R. S. 96. (d) R. S. 303.

Assurances and Evidences of Debt.

whole or any part of the consideration is for money or goods won by gaming, or bets thereon, or for repaying money knowingly lent or advanced for any gaming or betting, or at the time and place of such gaming or betting, to any person so gaming or betting, will be void as between the parties, and as to all persons, except those who claim under them in good faith and without notice of the illegality of the consideration. (a)

In any action on a promissory note payable on demand, brought by an indorser against the promissor, any matter will be deemed a legal defence, and may be given in evidence, which would be a legal defence to a suit on the same note, if brought by the promissee. (b)

On a promissory note payable on demand, made after this act goes into operation, (act passed April 6, 1839,) a demand made within or at the expiration of sixty days from the date thereof, without grace, will be deemed to be made within a reasonable time; and any thing which is deemed equivalent to a presentment and demand on a note payable at a fixed time, or which would dispense with such presentment and demand, if it occur at or within the said sixty days, will be deemed a dishonor thereof, and will authorize the holder to give notice of such dishonor to the indorser, as upon a presentment to the promissor, and his neglect or refusal to pay the same. And no presentment of such note to the promissor and demand of payment will be deemed to be made within a reasonable time, so as to charge the indorser, unless made on or before the last of said sixty days.

Instruments importing consideration.-The words "value received" are only prima facie evidence of consideration. (c)

Contracts under seal are valid without consideration. (d) The American courts have been disposed to treat the recital of the amount of consideration in a deed of conveyance, like the mention of the date of the deed, the quantity of land, and other recitals of quantity and value to which the attention of the parties is supposed to have been but slightly directed, and to which, therefore, the doctrine of estoppels does not apply. Hence, though the party is estopped from denying the conveyance, and (a) R. S. 50. (b) Ib. 121. (c) 14 Pick. 198. 5 Ib. 391. 6 Ib. 427, 433.

(d) 8 Mass. Rep. 162, 200. 2 Ib. 159.

Rates of Damages on Protested Bills.

that it was for a valuable consideration, yet the weight of American authority is in favor of treating the recital as only prima facie evidence of the amount paid, in an action of covenant by the grantee, to recover back the consideration, or in an action of assumpsit by the grantor, to recover the price yet unpaid. (a)

2. Rates of Damages on Protested Bills.

Bills payable without the United States. When a bill drawn or indorsed in Massachusetts, and payable without the United States, except in Africa, beyond the Cape of Good Hope, and Asia, and the islands thereof, is duly protested, the party liable for the contents must, on due notice and demand, pay the same at the current rate of exchange at the time of the demand, and damages at the rate of five per cent. on said contents, with interest thereon, computed from the date of the protest, in full of all damages, charges, and expenses. (b)

Bills payable beyond the Cape of Good Hope, &c.—In the excepted cases above mentioned, the contents of the bill must, on due notice and demand, pay the same at its par value, with twenty per cent. thereon, in full of all damages, interest, and charges. (c)

Bills payable out of the state, but within the United States.Damages on inland bills are as follows: on bills payable in Maine, New Hampshire, Vermont, Rhode Island, Connecticut, and NewYork, two per cent.; in New Jersey, Pennsylvania, Maryland, and Delaware, three per cent.; in Virginia, the District of Columbia, North Carolina, South Carolina, and Georgia, four per cent.; and within any other of the United States, or the territories thereof, five per cent. (d)

Bills payable within this state.-The rate of damages on bills of exchange, and orders for the payment of money, drawn or indorsed in Massachusetts, for any sum not less than one hundred dollars, payable in the state, at any place not less than seventy-five miles from the place where the same is drawn or indorsed, when such bills or orders are not duly accepted or paid,

(a) Greenleaf on Evidence, vol. i. sec. 26. 17. Mass. Rep. 249. 20 Pick. Rep. 247. (b) R. S. 33.

(c) Ib. 33.

(d) Ib. 239.