Volume 10 — New Hampshire Reports

Assumpsit, on a receipt, signed by the defendant, as. follows, viz. : “ January 25th, 1833.

Assumpsit, upon an account annexed to the writ, for work, &c. furnished by the plaintiffs, as blacksmiths. The case was submitted to the determination of the court upon a statement of facts, by which it appeared that Greeley and Marckres, the plaintiffs, entered into partnership, in the blacksmithing business, January 1, 1836. The blacksmith work was done by Marckers and hands employed and boarded by him. The stock was furnished and paid for by Greeley.

Whit op Entry, to recover a tract of land in Nashua. Plea, the general issue. The defendant, to maintain his title, offered Joseph Hills, his grantor, as a witness, who was objected to, as incompetent, on the ground that he was liable to the defendant on the covenants contained in his deed, if the action should be sustained.

Assumpsit. On the trial the plaintiff offered one Doyle as a witness, to whose admission the defendant objected, on the ground that he had been twice convicted of infamous offences, in the supreme judicial court of Massachusetts. The plaintiff contended that the objection went only to the credit of the witness, and the defendant that it went to the competency. The court ruled that the witness was admissible, to which the defendant excepted.

Assumpsit. The declaration alleged that one John Richardson, being indebted to the plaintiff in the sum of $¾27'05, and having delivered to the plaintiff his book of account, as a pledge to secure the debt, the defendant, in consideration that the plaintiff would deliver the said book to one Bryant, to collect the amount due on the book, promised the plaintiff to pay him the amount due from Richardson to the plaintiff, provided Bryant should not collect enough for that…

Assumpsit, to recover the expenses incurred in the support of one Maria Hobart, alleged to be a pauper, and have her settlement in Bristol, founded upon a special contract, alleged to have been made by the defendants. To prove the contract, the plaintiffs offered in evidence the following writing, viz.: Bristol, July 5, 1836. To the Selectman of Mason — Gentlemen : Your letter of the 22d ult., respecting Maria Hobart, has been duly received.

This was a writ of entry, for a certain tract of land in Mason, brought by the plaintiff, as administrator of the estate of Samuel Whiting, and was tried on the general issue at the present term.

<p>An ancient plan, drawn at the time of executing a deed, showing the bearing of the line betwixt the premises and an adjoining lot, is no evidence of such line as against such adjoining owner or his grantee, unless their cognizance of such plan, and assent to it, is first shown.</p>

Tins was an action of trover, and was submitted to the court for their decision on the following statement of facts. Alanson E. Coon, on the 30th day of May, A. D. 1836, mortgaged to Edward P. Offutt a certain lot of personal property at Lowell, Massachusetts, at which place the parties at the time resided. The mortgage was given to secure $50‘00 on demand, and was duly recorded, on the day of the date, in said Lowell, in conformity to the laws of Massachusetts.

This is an action on the case for slander, on the following declaration: For that whereas the plaintiff is a good, true, honest and just… Held: esteemed and reputed to be of a good name, character and reputation, as well among a great number of his fellow-citizens, as among all his neighbors and acquaintances ; and during all that time hath never been guilty of, or justly suspected of having been guilty of murder, or any kind of violence, or any other hurtful or disgraceful…

<p>Where a marriage was had in this state, and the parties resided here, and then removed to New-York, where the husband deserted the wife, leaving her without the means of support, whereupon she returned to this state ; and he, during the time she so resided here, committed adultery in Vermont — Held, that the marriage having been contracted here, and the wife lawfully residing here, this court had jurisdiction of her application for a divorce.</p>

Writ of entry, to recover a tract of land in Richmond, upon a general declaration of a seizin in fee and in mortgage. Plea, nul disseizin.

Case. The declaration alleged, that at a legal meeting of the inhabitants of Westmoreland, qualified to vote in town affairs, and resident in school district number one, in said Westmoreland, duly notified, &c., on the sixth day of January, 1838, it was voted to raise the sum of thirty dollars, to repair the school house in said district, the same being in need of repair — that the plaintiffs were, at the meeting, duly appointed a committee to superintend the repair of said…

Thover, for 138 nests of wooden tubs, alleged to have been converted by the defendant August 17, 1837, which is the date of the plaintiff’s writ.

<p>Where an individual conveyed a farm, and at the same time took a bond, and a mortgage of the farm, to secure the support and maintenance of himself and his wife, and a daughter who was non compos, during their lives, and the life of the survivor — Held, tliat it was to be inferred that the mortgager was to remain in possession until the condition was broken, or the security impaired by waste.</p> <p>The mortgager, after the death of the mother, contracted for the support of the father and daughter at the house of a third person, to which they removed without objection, and remained there until the decease of the father — Held, that the condition was fulfilled by continuing to furnish suitable support for the daughter at that place. *</p> <p>The daughter, after the death of her father, left the place thus provided, and went to a distant town, where she became chargeable to the town as a pauper; and notice was given, by the selectmen of that town, to the selectmen of the town wfiiere she had resided and had her settlement, who brought her back, and requested the mortgager to support her and pay the expenses incurred, but he refused to pay them — Held, that the refusal of the mortgager to pay the expenses did not constitute a breach of the condition, there being no evidence that he was in fault, and the town being strangers to the contract for her support.</p> <p>But the selectmen having obtained the authority of her guardian, for that purpose, and having then made an application to him to support her, to which he replied that he thought it best to have a trial about it; that his counsel had told him he had better let the town support her, and bring an action against him, and he would then have a better chance in a controversy with those with whom he had contracted for her support — Held, that this was evidence of a refusal to support, and of a breach of the condition, and that it was not necessary, after a refusal, to carry her to his house, or to the place provided by him, and make a demand of the support there;</p>

Debt. The declaration alleged that Isaac Kimball, the defendant’s intestate, and one William T. Kimball, on the 12th of April, 1S26, by their writing obligatory, bound themselves, their heirs, &c., to the plaintiffs and others since deceased, in the penal sum of §700, with a condition, among other things, that they would support their mother, Anna Kimball, both in sickness aird health, during her natural life, and that said support should either bo in the family with…

This was trespass, for assaulting and beating the plaintiff on the 4th day of September, 1838. The ease was tried on the general issue, and a brief statement filed, alleging that the trespass, if any, was committed by the defendant and one George Holt; and that the plaintiff received and accepted of said Holt the sum of twenty dollars, in full satisfaction of said trespass. The trespass alleged was proved.

Assumpsit against Allen as principal, and Adams & a., selectmen of Fitzwilliam, as trustees. It appeared, from the disclosure of the trustees, that the minor son of the defendant Allen kept the winter school in district number two, in said Fitzwilliam. The school money accruing to said district was $4986, which was in the hands of the trustees at the time of the service of the plaintiff’s writ, and is still holden by them. The minor’s wages amount to that sum.

Foreign attachment. From the report of an auditor, appointed by agreement of the parties, it appeared that on the 25th of November, 1836, the principal defendant, Woodcock, executed a mortgage to Watkins and Newton, the trustees, of divers articles of personal property, among which were two horses and waggons, several lots of lumber at different places, some wood, two mortising machines, and other property in the shop occupied by Woodcock, in Swanzey • and a formal delivery…

Foreign attachment. In answer to the general interrogatory, the trustee disclosed that some time in April, 1837, the officer who made return of the writ came to him, and asked him if John Guillow, jr., one of the principal debtors, worked for him, and if he owed him any thing ; to which he replied that there were unsettled accounts between them, and he might be owing him some — that the officer then made known to him that he had a trustee writ against him, partly unfolded…

Indictment for burglary, in breaking and entering the dwelling-house of one William Stickney, about the hour of twelve, in the night time of the ninth of November, A. D., 1837, with intent to steal, and stealing therefrom one butter firkin, and thirty pounds of butter.

FoReign attachment. It appeared, from the disclosure of the trustees, that on the 29th September, 1838, Silsby assigned, by indenture, all his lands and tenements, goods and chattels, The indenture purported to be an instrument between the assignor of the first part; the assignees of the second ; “ and the creditors of said Silsby who have executed these presents, of the third part.” It provided that the assignees should sell and convert all the property into money, and,…

Trover, for sundry promissory notes. The writ was dated the 24th of April, 1837. In support of the action, the plaintiff introduced a writing, signed by the defendant, dated October 6, 1836, whereby the defendant acknowledged the receipt of the notes, and engaged to account for them when the plaintiff indemnified and saved him harmless, for becoming bail for the plaintiff, in two actions against him.

Foeeign attachment. It appeared, from the disclosure of the trustee, that a negotiable promissory note, drawn payable to the defendant, and which was his property, was, by the defendant, in the month of October, 1S36, put into the trustee’s hands, and was afterwards, in November, 1838, endorsed to the trustee for certain specific purposes, to be first paid and satisfied by the trustee — with directions from the defendant, after naming certain other debts and claims against…

FoReign ATTACHMENT. The principal was defaulted. The trustee disclosed that there was nothing in his hands for which he was individually liable to the principal debtor.

Assumpsit, for money had and received. Plea, general issue. It appeared that the plaintiffs were incorporated June 27, 1835, by the name of the Newport Mechanics Manufacturing Company, and the corporators accepted the charter and duly organized under its provisions. The plaintiffs gave, in evidence, a note of the following tenor: “ Newport, May 27, 1835.

Tbespass. The declaration contains four counts. The first is quare clausum fregit; and charges the defendant with breaking and entering the plaintiff’s close, in Claremont, which is particularly described, with its abuttals, and cutting down and carrying away the plaintiff’s grass.

Case, to recover damages for the loss of the plaintiff ’s horses, arising from a defect in a bridge, which the defendants were hound to repair.

Case, for opening a passage, or highway, round the plaintiffs’ turnpike gate, in Charlestown, on the 13th day of March, 1830, with intent… Held: at which it was voted — “ That the directors establish atoll-gate between Cheshire bridge and Jabez Walker’s ; and a gate was accordingly established at the south end of Charlestown Street: and on the 7th day of January, 1823, the directors issued an order for the removal of this gate, from the south end of Charlestown street to a…

Case, for an illegal assessment of taxes. The first count of the declaration alleged that the legislature of this state, on the 11th of November, 1780, by an act, or joint resolution, exempted the land appropriated to the use of Dartmouth College from paying taxes, provided that the trustees of said college should give notice, seasonably, what lands they had in each town, respectively, to the selectmen of the town — that said act was still in force — that at the time of…

WRIT of entry, to recover a farm in Campton. The defendant pleaded non tenure and disclaimed as to all the premises demanded, except one acre and one hundred and thirty square rods, described thus: “beginning at the south-west corner of the tract set off on execution, Peter Walker vs. John H. Tifft ; thence south, three degrees west, eight rods, to a stake and stones; thence east, three degrees south, to the house, and through the centre of the chimney to the centre of the…

Assumpsit, upon a promissory note. It appeared in evidence that Foss, the plaintiff ⅛ intestate, for some time previous to his death, which happened in October, 1833, held a note against the defendant, for $50-00 ; and on the day of his decease, and when Ije was entirely senseless, and no hopes were entertained of his recovery, one Jeremiah Prescott, to whom Foss was indebted in the sum of about $46-00, came, in company with the plaintiff, to the house of Foss ; and, after…

Assumpsit upon a promissory note, signed by John Adams, jr., and by the defendant, John Adams, as his surety, dated October 19, 1829. The defendant contended that he was discharged from further liability, by a contract between the principal and one Smith Buswell, who it was admitted was the party in interest.

Assumpsit upon a promissory note. The plaintiffs moved to amend by filing a count for goods, wares and merchandize, sold and delivered by the plaintiffs to the defendant, before the date of the note, for which the note was in fact given. The defendant objected to the amendment.

Assumpsit, for the support of Fanny Hall, wife of Enoch Hall, and Moses and Mary Ann, children of Enoch and Fanny Hall, from the first of April to the 25th of June, 1835, and was tried upon the general issue. The plaintiff proved that Enoch Hall was the son of Na-taniel Hall, and that in 1809 Nathaniel Hall had his settlement in Bow • and no evidence was offered to show that Nathaniel or Enoch had any settlement elsewhere.

Assumpsit, to recover the sum of ,§55'95, and interest from October 3, 1832, money received by the defendant, Gordon Burley, to the plaintiff ⅛ use. It was tried here under the general issue, and notice of an off-set. The off-set was a note given by Harris to Burley, dated October 18, 1833, for $60'95, payable to said Burley, or order, on demand, with interest. The defence to this note was that it was given for unlawful interest.

Assumpsit, upon a promise to indemnify the plaintiff on account of his entering into a recognizance for the appearance of one S. B. Webster, on the special request of the defendant. The case was submitted to the determination of the court upon a statement of facts.

Debt on a bond, dated April 19, 1836, executed under the statute of 1832, upon the arrest of Benjamin Adams, on an execution in favor of the plaintiff. The case was submitted to the determination of the court upon a statement of facts. The defendant signed the bond as surety of Benjamin Adams, and the arrest was made on the day of the date.

<p>Assumpsit on four promissory notes, one of which was given to one Daniel Barber, and by him indorsed to the plaintiff. The three other notes were payable to the plaintiff, and were given subsequently to the time when Barber indorsed that note to the plaintiff.</p> <p>Plea, the general issue, with a brief statement, alleging that the defendant, at the time of giving said notes, was under the age of twenty-one years.</p> <p>The signatures to the notes being admitted, the defendant introduced evidence tending to show his minority, at the time of making said notes ; and the plaintiff attempted to rebut that testimony, by evidence that when the defendant made the note to Barber he declared to him that he was at that time more than twenty-one years of age, of which Barber informed the plaintiff, when he indorsed the note to him.</p> <p>Upon this evidence the court instructed the jury, that if they were satisfied that the defendant, at the time of signing said notes, was under twenty-one years of age, they must find, a verdict in his favor; that although the defendant stated to Barber, previous to the giving of the notes, that he was more than twenty-one years old, and Barber commum-cated it to the plaintiff, yet this imposed no legal obligation on the defendant to pay either of the notes, if he was in fact a minor at the time he gave them.</p> <p>The jury returned a verdict for the defendant, and the plaintiff moved for a new trial.</p> <p>The defendant in this case declared he was of age, and thereby induced the payee of the first note to trust him. This was communicated to the indorsee, who after’wards took the other notes. The defendant is estopped from showing that this declaration was false. The court having settled that a minor is liable for a false representation that he was of age, he should be estop-ped by such declaration, equally with other persons in other cases.</p> <p>The minor may be of age as respects his frauds, but he is a minor still as it respects his contracts.</p>

Assumpsit, to recover the balance of a note to plaintiff ⅛ intestate, dated the 23d day of February, 1824, for $70-00, with interest after January, 1825, and signed by the defendant and one Samuel D. Stevens, on which note were the following endorsements : “Interest paid on the within, until 1827.” “February 1, 1833.

Assumpsit, on a joint and several note, signed by the defendants. Hiram Ladd, one of the defendants, was defaulted. John Ladd, the othdr defendant, pleaded the general issue, and accompanied it with a brief statement, setting up insanity, as to himself, at the time of signing the note, as the ground of defence. It appeared that Hiram Ladd was the principal debtor, and John Ladd surety.

Assumpsit on a promissory note. Plea, the general issue, and a brief statement, setting forth that the defendant, at the time of making the note, was an infant. The signature of the note was admitted ; and it appeared that the defendant, at the time of making the note, was a minor.

Tkover for 251 pine logs. Upon the trial, the plaintiff, in support of the action, gave in evidence a receipt, signed by the defendant and one Lake Williams, December 27, 1837, by which they acknowledged that they had received of the plaintiff, as a deputy sheriff, 251 pine logs, valued at $¡1000, which had been attached on a writ against Williams, and promised to keep the property free from expense to the- plaintiff, and return it to him, or any proper officer, on demand.

Assumpsit, on a promissory note, signed by the defendant, and Benjamin Fay, and others. The suit was against all the signers of the note, who were all defaulted except said Rix. The defence on his part was payment; and that he was a surety, and discharged by a new agreement for time, made by the plaintiffs with the principal ■ and he offered the said Fay, who had been defaulted, to prove the above facts.

Assumpsit, upon an account annexed; taxed upon review. The items of the account were as follows: To court bill of cost and execution against $5-94 Ditto. Phelps against same, 1836. To ditto on old judgment against Samuel Huggins, settled by you, The writ was dated March 17, 1837. ; #28-90 The defendant pleaded the general issue and statute of limitations, which were joined.

Writ of entry, upon a mortgage, executed by the defendant August 16th, 1836 ; submitted to the determination of the court upon a statement of facts. Held: and was the owner of, a joint and several note, for the sum of $6’200, signed by Willard and one Jonathan Morrison, and which had been discounted for Morrison and Willard.

Petition for partition of certain tracts of land in Brent-wood. The case was submitted to the court upon a statement of facts. Stephen Leavitt, on the third of September, 1822, was seized in fee of the land described in the petition, and on that day mortgaged the same, (with other land) to the trustees of Phillips Exeter Academy, to secure the payment of his promissory note.

Assumpsit, for money paid. The defendant, by his guardian, pleaded the general issue. It appeared in evidence, that on the 12th of February, 1836, the defendant exchanged horses with one Baldwin, and agreed to pay Baldwin $75-00, for which he procured the plaintiff to sign a note with him as surety. The plaintiff was sued on the note, and on the 12th of April following paid Baldwin the amount. The defendant was at the time a minor, having attained his full age.

Error upon a judgment rendered in the court of common pleas, February term, 1837. as administrator of the goods and estate of Benjamin Pillsbury, deceased, commenced a suit against Hubbard, the defendant in error, founded upon two promissory notes, payable to the intestate, and purporting to be signed by Hubbard ; and obtained a judgment and execution, which was satisfied.

Trover for a horse, waggon and harness. It appeared in evidence, that prior to November, 1S36, the property in question belonged to one John C. Wadleigh— that it was, in that month, attached as his property, on a writ in favor of Noah Clark, and delivered by the officer to Amherst Coult,iwho gave a receipt for it, promising to return it— and that Coult, after retaining the property a week or fortnight, having obtained the assent of Wadleigh that he might sell if he could get…

<p>Petition fob. pabtition, tried on an issue sent from this court. The petitioner claimed an undivided moiety of a certain tract of land in Derry.</p> <p>The tenant, pleaded that he did not hold the premises, or any part thereof, as tenant in common with the petitioner ; on which issue was joined.</p> <p>On the trial it appeared that the premises in question, (a plan of which follows,) containing forty or fifty square rods of land, with a house and barn thereon, were formerly owned by the defendant and one McFee.</p> <p> </p> <p>McFee removed from the premises some time prior to 1827, and went to Cambridge, Massachusetts, leaving the defendant, whose wife is a sister of McFee, in possession.</p> <p>In October, 1827, McFee, being embarrassed and intemperate, left Cambridge to go to the south, and has never returned. His wife testified that she had not heard from him since; and it did not appear that he had been heard of, except that a person answering his description was said to have died in the western part of New-York.</p> <p>He left his wife and one child at Cambridge ; and on the 10th of July, 1833, on the application of his wife, administration upon his estate was committed to David A. Gregg, by the judge of probate for this county.</p> <p>On the 28th of April, 1835, said Gregg obtained license from the judge of probate, reciting that the personal estate of McFee was insufficient to pay his debts, and authorizing him to sell at public auction “ the following described real estate of said deceased, to wit., the one half of a certain dwelling-house and ten rods of ground, more or less, in Derry, in said county of Rockingham, lying in common and undivided with one Benjamin Radcliff, subject to the right of dower which the widow of said deceased hath therein, as a part of said real estate cannot be sold without injury to those interested in the remainder.”</p> <p>On the 9th of May, 1835, said Gregg sold at public auction a moiety of the land and buildings described in the plan, to Jeffers, the demandant, and executed a deed to him of all the right, title, interest and estate which the said deceased had in and unto the one undivided half of a certain dwelling-house, &c. : describing the premises as in the petition.</p> <p>The defendant objected, 1. That there was not sufficient evidence of the death of McFee. 2. That the license and deed were both void for uncertainty. 3. That if the deed was to be regarded as a deed of the whole land, it conveyed a larger tract than the administrator was authorized to sell. 4. That if it was regarded as a conveyance of the lot where the house stood only, it was an attempt by a tenant in common to sell his share in a part of the land owned in common.</p> <p>A verdict was taken for the petitioner, by consent, subject to the opinion of this court upon the foregoing case. ,</p> <p>contended that the exceptions taken might be resolved into two questions:</p> <p>1. Whether administration was duly granted upon the estate.</p> <p>2. As to the right of an administrator to sell an undivided part of the premises, instead of an undivided half of the whole estate.</p> <p>That letters of administration constituted no evidence of the death of the person whose estate was administered upon, he cited 2 Stark. Ev. 261, note L; 3 Esp. N. P. Cas. 63, Thompson vs. Donaldson. And that the death of a person is not to be presumed except after an absence of seven years, 1 Phil. Ev. 159 and, 160; 6 East 84 ; 2 East 312, Wilson vs. Hodges.</p> <p>He contended that there should be evidence of the death of the party at the time of the appointment of the administrator. At the time of the trial of the issue in the court below, which was more than seven years after McFee had left without being heard of, it was conceded that the evidence of his death was sufficient, on account of such absence.</p> <p>On the second question, it was contended that the description in the deed did not convey an undivided half of the whole estate, and that a tenant in common could not convey a part, merely of land owned in common. 16 Mass. R. 1, Key vs. Goodwin ; 12 Ditto 349, Bartlett vs. Harlow ; 13 Ditto 57, Baldwin vs. Whiting; 1 Hil. Ab. 448, and cases cited.</p> <p>contended that the evidence of the death of McFee, as shown in the case, was sufficient to justify the verdict taken for the petitioner, and that a jury on such testimony might well have found the fact of McFee’s decease. He also contended that the question of the death of McFee was settled by adjudication of the judge of probate, in the appointment of an administrator on his estate.</p> <p>To the point that the description was sufficiently specific to convey the land, he cited 5 N. H. Rep. 113, Haven & a. vs. Richardson, and 5 N. H. Rep. 58, Tenney vs. Beard.</p>

Trespass, for that the defendants, on the 29th of July, 1837, made an assault on the plaintiff, and imprisoned her and detained her for a long space of time, &e. Plea, the general issue, with a brief statement, that said Gale was guardian of one Richard Bartlett — that the plaintiff was a person of ill-fame, and npt fit to associate with him —that she was in the house with him — that Gale ordered her out, and on her refusal, directed the other defendants to put her out, &c.…

Debt on bond, conditioned that said Welch should take the oath prescribed for the relief of poor debtors within one year from the day of the arrest on an execution, recovered in the plaintiff’s favor, or should surrender himself a prisoner, as prescribed by law. The arrest was on the 12th of February, 1837. The defendants pleaded the general issue, with a brief statement, alleging performance of the condition of the bond.

Debt upon an award. The declaration alleged that the parties to this action, on the 19th of February, 1838, entered into an arbitration bond, to submit to certain arbitrators, mutually chosen by them, all suits, claims, demands and controversies, of whatsoever nature ox description, to the final decision and award of said arbitrators — that due notice was given, a hearing had, and an award made by said arbitrators that the defendant in this suit should pay the plaintiff the…

Foheign attachment. The trustee stated, in his disclosure, that at the time of the service of the plaintiffs’ writ on him, April 28, 1837, hewas indebted to the defendant, on account, to the amount of $ 177-59 ; and that on the 24th day of April, 1837, the defendant, by a deed of assignment, a copy of which was annexed and made apart of the disclosure, bargained, sold, consigned and transferred to one William Greenough all his lands, tenements, goods, chattels, choses in…

Assumpsit, upon a promissory note of the defendant, dated July 10, 1827, for $30-00, on demand and interest, payable to Moore & Sargent, or order, and indorsed to the plaintiff. The defendant filed the general issue, and gave notice that he should offer claims against Moore & Sargent, in set-off.

<p>If incompetent evidence is introduced in the course of a trial, but the jury are afterwards directed to disregard it, the admission of it furnishes no ground for a new trial, unless there is reason to believe that it improperly influenced the verdict.</p>

Libel for a divorce, setting forth that the libellee had committed adultery with one Lewis C. Blaisdell. The libellee offered an affidavit tending to show condonation ; and, upon the motion of her counsel, an order was made that the libellant furnish her with the sum of twenty dollars, to enable her to make her defence. Evidence having been submitted upon both sides, a divorce was decreed, according to the prayer of the petition.

Assumpsit, upon a promissory note, dated January 22, 1828, for $365-00, drawn payable to the plaintiff, or order, to the use of the town of Raymond, in thirty days, and interest, and signed by the defendant and H. G. Cilley. The suit was prosecuted for the use of the town of Raymond, The defence was that the note was given on an illegal consideration.

Writ of entry, to recover several tracts of land in Som-ersworth. Plea, the general issue.

Writ of entry, wherein the plaintiffs demanded 2000 square feet of land, being all the land covered by a two story building, heretofore occupied as a carding and fulling mill.

Assumpsit, for money paid, Plea, the general issue, with a brief statement, that the defendant would rely upon the statute of limitations.

<p>In an action founded upon a promise of marriage, the plaintiff is entitled to show circumstances of contumely and aggravation, attending the breach of the promise, in order to enhance the damages ; and for this purpose may prove the declarations of the defendant, even if they contain an actionable slander.</p> <p>Referees may admit evidence which would not be admissible in a court of law, if they think proper to decide upon what they deem equitable principles, instead of being governed by strict rules of law.</p> <p>Where referees, in an action for a breach of a marriage promise, admitted evidence of the plaintiff’s good character, the defendant having assigned as a reason for discontinuing his attentions that she was a thief, and having offered evidence to support that allegation — Held, that this furnished no reason for setting aside the report, it appearing that the referees did not undertake to decide according to law.</p>

Covenant, upon an indenture, dated June 30, 1837, reciting that whereas the plaintiff had made a proposal to the general post-office department, at Washington, for carrying the United States mail, upon a certain route, at the yearly compensation of $ 1200, which proposal had been accepted by the post-master-general, subject to the terms and conditions stated in the post-office department’s advertisement for proposals; the service to commence on the first day of July, then…

Assumpsit. The original writ contained but one count, which was a special count, upon a note or memorandum, dated November 30, 1830, signed by the defendant, of which the following is a copy. “ For value received, I promise to pay James Stevenson, or order, one hundred and four dollars, and sixteen cents, to be paid in young likely neat stock, to be demanded at my house in Jackson, in three years from, date, and interest annually ; the above named stock will be received…

Assumpsit, on a note for one hundred and forty three dollars eighty-seven cents, dated March 1, 1833, drawn payable on demand and interest, to one Robert H. Palmer, or order, and by him indorsed to the plaintiffs. The writ was dated November 18, 1837.

Indictment for bigamy. A witness on the part of the state testified that the defendant, at Cornish, in the comity of York, and state of Maine, on the 12th of November, 1820, was, in presence of the witness, married to Olive McKusic, by one Timothy Remick, a resident in the town of Cornish and state of Maine, and who long before and ever since has officiated as a minister at said Cornish.

Assumpsit, for the support of a pauper, named Molly Otis, from April, 1836, to June 30, 1837. The case was tried on the general issue, and a verdict was found for the plaintiff. It was admitted that the pauper had her settlement in Strafford at the time the support was furnished, and was poor and unable to support herself, and that the plaintiff maintained her during that time.

Thespass, for taking an outside, or surtout coat, and a dress coat, the property of the plaintiff. The defendant plead the general issue, and filed a brief statement, that he was a constable of Dover, and as such took the goods on a writ of attachment in favor of the plaintiff, on which execution was afterwards recovered, and that the goods were sold by him, and the proceeds applied in part payment of the execution.

Assumpsit, by the indorsee, against the indorser of a promissory note, signed by John Averill, dated at Bangor, July 25, 1835, for the sum of 0675, payable to the defendant, or order, at the Mercantile Bank, in Bangor, in one year from date, with interest annually.

Petition for a highway, in the towns of Somersworth and Dover. The committee reported, “that after making all the examination requested by each and all of the said parties, and after hearing the several proofs and allegations of the parties, both in favor and against said petition, the committee were unanimous in the opinion that the public good did require that a public highway should be laid out, agreeably to the prayer of said petition.

Assumpsit, upon an account annexed to the writ, for one cord of wood, at $5-00, delivered the defendant, at his residence in Somersworth, June 7f 1837. The action came to the common pleas by appeal from the judgment of a justice of the peace. Upon the trial, the plaintiff offered evidence tending to show a sale of a load of wood, by himself, to the defendant, at the date of the account. There was about a cord of it.

Libel for a divorce, alleging that the libellant was lawfully married to Mary Ann Adams, at Dover, September 10, 1835, and that he hath uniformly kept his marriage covenants ; but that said Mary Ann, regardless, &c., did unnecessarily, without sufficient cause, and against the consent of the libellant, leave him on the 28th of February, 1836 ; and has, from that day hitherto, refused to cohabit with him, unnecessarily, and without sufficient cause, and against his consent.

Trespass, for breaking and entering the plaintiff’s close, in Barrington ; tried upon review. Upon the trial of the original action, the jury found for the plaintiff, with 05-00 damages; and the title to real estate not having been drawn in question, the costs were limited to $>5’00, and judgment rendered for the plaintiff.

Information filed by the attorney general against the town of Dover, for not making a road, alleged to have been legally laid out and established in said town, described as follows, viz.: “ Commencing on the line between the towns of Dover and Somersworth, at a point where the centre line of the new road, lately laid out in said town of Somersworth, by the selectmen thereof, as appears by the return thereof, dated October 15, A. D. 1833, terminates ; thence running south…

Wkit of entry, in which the demandant claimed to recover a tract of land, sixty-nine acres, more or less, being part of Great Lot, numbered ten in the third range in Alton, which tract was specifically set forth, and described by metes and bounds, in the plaintiff’s writ. Plea, nul disseizin.

Writ of dower, wherein the plaintiff, as the widow of Stephen Otis, claimed dower in fifty-five acres.of land, situate in Strafford, in the county of Strafford. The plaintiffs writ was dated December 29, 1837.

Assumpsit, to recover the expense of keeping one cow and two sheep, for the plaintiffs, for three years, charged at eighty dollars; which the defendant promised to do, but had neglected and refused to comply with such promise. Plea, the general issue.

In equity. The bill stated that on the first day of November, 1835, the plaintiff lent to William W. Estabrook $1-000, and took therefor the promissory note of Benjamin Damon, Joseph P. Stickney, and Timothy Chandler, for the same sum, payable to Estabrook, and by him indorsed to the plaintiff, in which note Estabrook was in fact principal, and the other parties thereto sureties — that on the 17th day of October, 1836, Estabrook, for value received, gave to Damon and…

Assumpsit, for money had and received, upon an account annexed, and upon sundry promissory notes. In the seventh count the plaintiff declared upon a promissory note, dated August 31, 1822, for 0100, payable to one Richard Everett, or order, by the 15th of March, 1830, and by him indorsed to the plaintiff. The defendant pleaded the statute of limitations, to all the counts.

Assumpsit, oil a count for money had and received, and oil a promissory note. The general issue was plead, and a brief statement filed, setting forth special matters in defence, which appear in the case as drawn. The plaintiff gave in evidence a note as follows : “Concord, Aug. 8, 1S37.

Trespass, qnare clausum fregit, to recover the penalties prescribed in the statute for cutting and carrying away trees on the land of another, without the license of the owner. The defendant plead the general issue.

Assumpsit, upon a promissory note. At the September term of the common pleas, the writ and note having been lost or mislaid, the plaintiff’s counsel offered copies of the original writ, and note, and moved for leave to file a new writ, and to use the copies produced, upon the trial.

Error, to reverse a judgment rendered on default, in an action of assumpsit, in tvhich French was original plaintiff, and Joseph W. Sargeant and John R. Sargeant, the plaintiffs in error, were original defendants. The error assigned was, that John R. Sargeant, at the time of the rendition of the judgment, was an infant, under the age of twenty-one years.. This fact was traversed, and the issue joined was submitted to a jury, who found for the plaintiffs in error.

<p>A contract by which a party, for value received,promises to pay a certain sum, in specific articles, or labor, cannot be given in evidence under a count for money had and received.</p>

Teespass, for seizing and detaining the plaintiffs horse, until he paid $35-53. Plea, the general issue, with a brief statement in justification.

Fobeign attachment. From the disclosure of Gordon, the trustee, it appeared that on the 29th day of June, 1837, Dole, the principal debtor, executed an indenture, whereby he granted, assigned, bargained and sold to the trustee “all and all manner of goods, chattels, debts, demands, monies, and all other things of him, the said Dole, whatsoever, as well real as personal, of what kind, or nature, or quality soever, in the schedule hereunto annexed, and particularly mentioned…

Assumpsit, upon a promissory note. Plea, the general issue, with a brief statement of facts, relied upon as a defence. Verdict was taken for the defendant, subject to the opinion of the court upon the following case.

WRIT of entry, to recover a tract of land situated partly in Nashua and partly in Hollis, in the county of Hillsbo-rough. The demandant gave in evidence, in support of his title, a deed from Daniel King, for himself and Zachariah King, to the demandant. The tenor of the deed is set forth in the opinion of the court, so that it becomes unnecessary to recite it in the case.

Assumpsit, on review. Upon the trial the defendant offered in evidence the deposition of James Moore, Jr., taken in perpetuam rei memori-am. subsequent to the commencement of the suit. The plaintiff objected to its admission ; but it appearing that Moore had since deceased, it was admitted.

Replevin, for a horse. Plea, property in one Albert L. Merriam, and avowing the taking of the horse, as his property, by the defendant, as deputy sheriff, on a writ against Merriam, November 30, 1837, with a traverse. Replication, property in the plaintiff, and issue. The horse was formerly the property of the plaintiff, and was sold by him to Merriam, November 21, 1837, on a credit of thirty-nine days, at Lowell, Massachusetts.

Case. The declaration alleged, that the defendant was part owner, and driver, of a public stage coach, from Nashua to Amherst, and Francestown — that on the 31st January, 1837, the-plaintiff applied… Held: that where a man was bound to any duty, and chargeable to a certain extent by operation of law, he could not, by any act of his own, discharge himself ; (1 Esp. R. 36; Noy's Maxims 92; Doc. if Stud.270.) though it is now well settled that this obligation may be limited.

Assumpsit, for money paid by the plaintiff, as administrator, and by his intestate, Israel Peaslee. The writ was dated September 28, 1837. Pleas, the general issue, and the statute of limitations. The plaintiff gave in evidence a note, signed by the defendant, and the intestate, dated Oct. 22, 1827, for $1172-48, payable to Olney Thompson, or order, on demand and interest.

Assumpsit, upon a promissory note of the defendant, dated May 2, 1838, for ¡$2*83, payable to Gardner Wheeler, or bearer, on demand. The action was commenced before a justice of the peace, and was carried by appeal to the court of common pleas. On the trial there it appeared that the plaintiff, at the time, and before, the note was executed, was captain of a company of infantry, in the sixth regiment, in which the defendant was a private.

<p>Where there is a mere instantaneous seizin in the husband, the widow is not dowable.</p> <p>But where land is conveyed to the husband, and is immediately re-conveyed in mortgage,and the mortgage is redeemed, either by the husband, his executor, or widow, the widow is entitled to dower.</p> <p>Where, by the terms of such mortgage, one of the mortgagees was entitled to possession of a part of the mortgaged premises during life ; and the payment of a pecuniary provision, to be made, under certain circumstances, not to exceed a given sum — Held, that a tender of money by the widow, to an as-signee of her husband, as an indemnity against such provision, would not be a discharge of the condition of the mortgage, so as to entitle her to dower.</p> <p>Held, however, that the husband, or his assignee, would be entitled to possession of the premises in such case, until claim for such provision was made by the mortgagee ; and until such time the widow would be entitled to dower.</p>

Assumpsit, to recover the sum of $>67-00, expended by the town of Jaffrey, for the support of Julia P. Newell and her children, from the second day of November, 1838, to the twenty-ninth day of January, 1839.

Upon the entry of the appeal, the counsel for the executor moved the court here, that the instrument might be approved and allowed ; and the appellants thereupon pleaded, that it ought not to be approved and allowed; 1, because, at the time of making and executing it, said Richards was not of sane mind : 2, because he was induced to execute it by over persuasions, and artful misrepresentations ; and, 3, because, at the time of executing it, he did so without reading or…

Foreign attachment. From the disclosure of the trustees it appeared that Silsby, the principal debtor, on the 29th of September, 1838, made an assignment of his property, and delivered to the trustees the property described in it, consisting among other things of goods, and notes and accounts.

<p>Where a promissory note is made payable in a particular town, the holder is not bound to make a demand elsewhere. Nor is he bound to give notice to one of the makers, who lives in another town, at what place he will be ready to receive payment.</p> <p>If some of the makers reside in the town in which the note is made payable, it is sufficient for the holder to present it at their place of business, unless the other maker, who resides elsewhere, gives notice at what place in that town he will be ready to pay it.</p> <p>There is no form prescribed for a notice, to an indorser, of the non-payment of a note. A notice which sets forth the amount of the note, with the parties, its date, and when payable ; that it had been protested for non-payment on that day, and that the holder requires payment of the indorser, is sufficient.</p> <p>It is not necessary to prove the dishonor of a promissory note by a protest, even where the maker and indorser reside in different governments.</p> <p>Notice of dishonor may be put into the post-office, after non-payment, on the last day of grace.</p>

Assumpsit, upon a promissory note of the defendant, dated November 15,1836, payable to the plaintiffs, or order, on demand and interest, for $392-02; also upon an account annexed, for goods sold — balance due $393-02. On the trial it appeared, that at several times, in the year 1836, the defendant purchased of the plaintiffs, who were merchants in Boston, bills of goods, amounting in the whole to $786-05.

Trespass, for taking a horse of the plaintiff, on the 6th of March, 1836.

Petition to redeem, filed under the provisions of the act of July 3, 1829, prescribing the time and mode of redeeming real estate mortgaged. The petition, which was filed June 13, 1838, set forth, that on the 8th of January, 1835, one David Pollard mortgaged to Abraham Melvin, the respondent, a tract of land in Dor-chester, to secure the payment of several promissory notes, and that on the 19th of July, 1837, Melvin entered into possession of the land.

Indictment, for entering a shop in the mght time, and .stealing therefrom. The respondent was tried and convicted, and motion was made in arrest of judgment, and for a new trial, for the following reasons : 1. That the indictment upon which the respondent was arraigned was not an indictment found by the grand jury. 2.

Writ or entry, in which the plaintiff demanded the south half of two lots of land, in Bethlehem, in the county of Grafton, numbered six and seven, in the first range, in the second and third sale. The defendant plead nul disseizin. On trial it appeared, that on the 29th day of January, 1833, one David Harvey conveyed the demanded premises to the defendant, and at the same time the defendant mortgaged back the property to Harvey, to secure the payment of the purchase money.

Assumpsit, for the support of Abigail Kimball, a pauper, alleged to be chargeable to the town of Campton. Held: that where a pauper left a town prior to March 21, 1821, without any intention of returning, and did not return, he gained no settlement in that town by the settlement act of that date, although he had acquired no home in another place.

<p>In an action for slander, the plaintiff recovers $‘2.82 damages, and the court, under the act of December, 1832, limited the costs. Tile plaintiff reviewed, add upon trial obtained a verdict for more than $13-33. — Held, that he was entitled to recover full costs of the first trial, and the costs of the review.</p>