Musical Leader Publishing Co. v. White

Mr. Justice Duncan delivered the opinion of the court. Abstract of the Decision. 1. Attachment, § 242*—when plaintiff entitled to a judgment by default on the attachment issue. In attachment based on an affidavit of nonresidence of defendant, where defendant does not traverse the affidavit or in any way deny that she was a nonresident, there is no issue made upon the question of nonresidence of defendant, and as to the attachment the plaintiff is entitled to a judgment by default. 2. Attachment, § 246*—when judgment for plaintiff on the attachment issue and on the merits sustained by sufficient evidence. In attachment to recover on a contract for advertising, where the attachment was based on the nonresidence of defendant, and defendant filed an affidavit of defense claiming plaintiff failed to publish the advertisements as agreed, and that she was entitled to a set-off, held that a judgment in favor of plaintiff on the attachment issue and on the merits was sustained by sufficient evidence, the defendant having introduced no evidence, and plaintiff’s evidence tended to show defendant was a resident of Italy before the contract was signed and a resident of Massachusetts after the attachment issued and there was evidence showing that plaintiff complied with the contract, that defendant had made a partial payment after the contract was concluded and that defendant’s husband had written a-letter, which defendant had adopted, asking for a postponement of payment. 3. Set-off and recoupment, § 43*—when defendant not entitled to instruction for set-off. Where there is no evidence tending to prove a claim of set-off, defendant is entitled to no instruction regarding the same.