Legal Opinion

Odiorne v. Odiorne

Superior Court of New Hampshire

Decided January 15, 1831PublishedCited by 5 opinions

Assumpsit. It was alleged in the declaration, that the defendant, at R. on the 29th November, 1826, by her note or memorandum, in writing, under her hand of that date,’ for value received, promised the plaintiffs, to pay them $171,66, whenever they should settle their father’s estate, or sooner, provided said Martha’s share in the personal estate of her late husband, would not pay one third of the demands against the estate of the said husband.

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Assumpsit. It was alleged in the declaration, that the defendant, at R. on the 29th November, 1826, by her note or memorandum, in writing, under her hand of that date,’ for value received, promised the plaintiffs, to pay them $171,66, whenever they should settle their father’s estate, or sooner, provided said Martha’s share in the personal estate of her late husband, would not pay one third of the demands against the estate of the said husband. And the plaintiffs averred, that they settled their father’s estate on the 1st May, 1829, and that the said Martha’s share in the personal estate of…

1Opinion of the Court

By the court.

The bill upon which the plaintiffs have declared, is payable upon a contingency ; and if the law be the same here as it is in England and New York, the plaintiffs cannot legally declare upon it as a bill. Chitty on Bills, 39 ; 6 Cowen, 108, Cook v. Satterlee; Bayley on Bills, 6—14; Dowling & Ryland’s N. P. C. 33, Ralli v. Sarell.

But in Massachusetts, the custom has always been to declare upon notes payable out of a particular fund, in specific articles, or upon a contingency, in the same manner as upon cash notes strictly negotiable. Chitty on Bills, 39, note ; 4 Mass. Rep. 254.

In…

2Cases cited1 opinion

  1. Jerome v. WhitneyNew York Supreme Court · 1811

3Cited by5 opinions

  1. Wilson v. GeorgeSuperior Court of New Hampshire · 1839
  2. Tibbets v. GerrishSuperior Court of New Hampshire · 1852
  3. Carleton v. BrooksSuperior Court of New Hampshire · 1843
  4. Congregational Society in Troy v. GoddardSuperior Court of New Hampshire · 1835
  5. Marshall v. CobleighSuperior Court of New Hampshire · 1846

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