Peirce v. Whittemore

8 Mass. 282

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1811
• Status: Published

Opinion

The Court,

taking into consideration the equitable circumstance» » of the case, ordered judgment to be entered for the dividend awarded by the judge of probate to the plaintiff upon the report of the commissioners, with interest thereon from the date of the plaintiff’s writ. The Chief Justice referred to the case of Wilde vs. Griffin,

(1) which was an action by an overseer of the poor upon a promissory note given by one charged as the putative father of a bastard child. The child died in a month after its birth ; and the defendant had before paid more than the expenses the parish had incurred. Lord Ellenborough, before whom the cause was tried, instructed the jury, that if they thought the money paid covered the whole expenses the parish had been put to, there was no consideration for the note, and they ought to find for the defendant. And they found accordingly, (a)

5 Esp. Rep. 142. See also Coke vs. Gower, 6 East, 110, there cited.

[It seems to be settled, that a partial failure of consideration will be no defence to a note or bill, unless the quantum be liquidated or certain. Chitty on Bills, 8th Lond. ed. p. 88. — Ed ]