Volume 11 — New Hampshire Reports

Assumpsit. The first count alleged that the defendants, on the 11th of July, 1835, in consideration of a deed executed to them by the plaintiff, of twelve twenty-fifth parts of the Indian Stream Territory, promised the plaintiff to pay him the sum of $4-000 on or before the 10th of July, 1836 ; or in case said land should not be disposed of by said 10th day of July, 1836, to re-deed to the plaintiff the said land, on demand.

Petition for a highway. On the coming in of the report of the committee, laying out a highway, according to the prayer of the petition, it appeared that a portion of the highway was laid over the Fourth New-Hampshire Turnpike.

Covenant. The declaration alleged that the defendant, on the 19th day of March, A. D. 1836, conveyed to the plaintiff a tract of land, and covenanted that it was free from incumbrances, and averred that it was in fact incumbered by a highway, &c. &e. The plaintiff offered evidence to show the conveyance and covenant, and the existence of the highway.

Indictment for Burglary. The indictment alleged that the prisoner, on the 6th day of June, 1839, with force and arms, at Littleton, the dwelling-house of one Ezra Parker, there situate, then and there, about the hour of one in the night time of the same day, feloniously and burglariously did break and enter, with intent the goods and chattels of one Ezra Parker, &c., to take, steal and carry away; and fifty pounds of cheese, of the value, &c., of the proper goods, &c., then…

Bum in Equity, to redeem certain mortgaged premises. The case was submitted to the decision of the court upon the following facts. On the 17th day of December, 1827, Miles Randall, being seized in fee of the premises, mortgaged them to Rebecca and Sally Davis, to secure the payment of three notes payable to said Rebecca, and one note payable to said Sally.

Trespass, for entering upon an undrawn lot, No. 2, in the 13th range in Lisbon, and cutting timber. Plea, the general issue. The defendant offered no evidence of right or title whatever. To prove the title in the wife, the plaintiffs traced the rights of nine of the sixty-eight original proprietors, by regular conveyances, to one C. W. Apthorp, and offered an office copy of his deed, of April, 1783, conveying them to those under whom the plaintiffs claim.

Trespass de bonis asportatis. The defendants severally plead the general issue, and each filed therewith a brief statement, setting forth that he and the others were selectmen of Campton, duly elected, and sworn—that on the 7th of July, 1838, Daniel Spencer, clerk of the school district No. 7, in said town, certified to said selectmen that the district had voted to raise $100, to remove and repair the school house ; and that they assessed the plaintiff, he being an…

Assumpsit, on account annexed for services rendered and money paid out in a suit brought, by the plaintiff as attorney, in the name of the defendant.

Trespass, for taking a quantity of manufactured lumber and pine logs. Plea, the general issue, with a brief statement in justification. On the trial, it appeared in evidence that one Daniel Trafton, of Stanstead, Lower Canada, July 18, 1836, purchased a tract of white pine timber land, in Littleton, in this county, of Adams Moore, one of the defendants ; which land was wild and uncultivated, except a small piece of three or four acres. The whole tract was five hundred acres.

Assumpsit upon two promissory notes, for 01765-60 each, dated February 5, 1834, payable by George Little, the defendant, to Moses P. Little, or order, one in six, and the other in twelve, months from date, and by him indorsed to the plaintiff.

Covenant. The first count alleged that the defendant, by his deed of the 1.1th of July, 1835, conveyed to the plaintiffs twelve twenty-fifths of all that tract of land lying north of the forty-fifth… Held: that in an action upon a covenant of warranty of land, the court will receive parol evidence of an ouster, and the plaintiff will recover, though he may have yielded voluntarily to a dispossession, provided the title to which he yielded be good, and paramount to his.

Assumpsit, founded upon a promissory note, made by Alzo Rich, the defendant’s intestate, payable to Jeremiah Jordan, or order, and indorsed. Rich, the intestate, had his domicil in Vermont, and upon his decease administration was taken upon his estate in that government. Having left property in this state, an ancillary administration was taken here, and the defendant appointed administrator.

<p>It is not necessary to show an acceptance of the provisions of a charter by record. The acts and doings of the corporators under such charter are sufficient evidence from which an acceptance may be presumed.</p> <p>A license to build and maintain a bridge on another’s land may be proved by parol, and is not such an easement or interest in land as to be within the statute of frauds.</p> <p>Such license is either irrevocable, or can only be revoked on payment of all expense and damage.</p> <p>Where an individual is shown to have been a stockholder in a bridge built by a corporation, which bridge went to decay, and a new one was built, it is not sufficient evidence that the interest of the stockholder has ceased that he has been called upon for no payment towards the new bridge, and supposes his stock to have been sold. Such a fact must be clearly shown, before he can be a witness in a suit where the corporation is a party.</p> <p>Where the court ordered a new indorser to be furnished, in a suit appealed from a justice, and the indorsement was made on the certified copy of the writ brought up with the papers—Held, that such indorsement bound the individual to liability as indorsee, and disqualified him as ¾ witness in the suit.</p> <p>Where his deposition was taken before such indorsement, it was holden to be inadmissible.</p>

Assumpsit, on a bank check, drawn by Isaac Wendell, and indorsed by the defendants, who are partners under the firm of A. & J. Wendell, There was also a count for money lent. On the trial the plaintiff produced the bank check mentioned in the first count, the signature and indorsement of which were admitted.

Writ of entry, to recover divers lots of land situate in North Hampton. The plaintiff claimed title under a mortgage from Simon Dearborn, to himself, bearing date August 22, 1818, the condition of which was to pay $675, on demand, with interest.

Case, for slanderous words. The first count in the declaration set forth, that one Samuel Spofford had executed certain promissory notes payable to one Dorothy Secomb, or order, which were afterwards indorsed to the plaintiff; and that the defendant, James Spofford, in a certain conversation of and concerning the plaintiff and those notes, falsely and maliciously spoke and published these words, to wit.: “If Doctor Bassett continues his suit against me, I mean to get those…

Writ of entry, upon a mortgage. Plea, mil disseizin. On the trial, it appeared that on the 20th of June, 1829, the defendant was indebted to the plaintiff, and gave a note for fS508-68, and executed the mortgage in question, to secure it. On the 27th June, 1829, he paid $273-49, and on the 3d July, $37-20, which sums were indorsed.

Assumpsit, for the support of a pauper. The declaration set forth that Louisa Wood, wife of Timothy Wood, resided in South Hampton from January 3, 1836, to March 3, 1836, and was poor and in need of relief, and had no relations of sufficient ability to support and maintain her; and that Timothy Wood during this time was a pauper, having no settlement in this state, and was liable to be supported by Hampton Falls, where his wife had her settlement; and that the overseers of…

<p>Where a town voted to raise their highway tax by assessing “ one day’s work on a poll, to be worked on the road, and in that proportion on the inventory,” without specifying the value for such work—Held, that it could not be supplied by the selectmen so as to render a tax valid.</p> <p>Where there are two or more joint owners of personal property, they should join in an action of trespass. If suits are brought by either of them severally, however, advantage can be taken of non-joinder only by plea in abatement,</p>

Assumpsit, for the use of a boat, or schooner, let to the defendant by the plaintiff for the term of five months from the - 20th of June, 1838, at $13 per month, payable at the expiration of each month from that date. The rent falling due for the boat on the 20th of July, and August, was duly paid, and this suit was brought to recover the rent due for the month ending the 20th of September. The defendant plead the general issue.

Assumpsit, for use and occupation of the Kimball Place, so called, in Hampstead, from the first day of May, 1838, to the 10th day of December, 1838. The defendant pleaded the general issue, and gave notice of a set-off for money had and received. On the trial, it appeared in evidence that about the first day of May, 1838, the defendant made a verbal contract ■with the plaintiff, to purchase of him the place in question, for the sum of $1200-00.

Complaint, under the “act to provide for the maintenance of bastard children,” which came before the court upon an agreed statement of facts. It appeared, that on the 13th day of January, 1840, the complainant entered her complaint before a justice of the peace for this county, charging the respondent with being the father of a bastard child, with which she was then pregnant.

Trover, for a promissory note. It appeared, from the report of the auditor in this case, that the defendant was an attorney at law', residing at Portsmouth, and that in the year 1828 the plaintiff deposited with him for collection certain demands, among which was the note in question, which was signed by one Rowe, for the sum of f 44-10, dated the 29th day of February,. 1828, and payable to the plaintiff.

<p>Charges upon a physician’s bill, for u visits and medicines,” are sufficiently specific, although the quality and quantity of the medicines are not designated ; it not appearing that they varied from the usual mode adopted by physicians in making charges-</p> <p>The book of accounts of a party, supported by his oath, is competent evidence to prove the payment of sums of money not exceeding $6-67.</p>

Assumpsit. The ease came to the common pleas upon an appeal from the decision of the commissioners on the estate of Edmund Roberts, the defendant’s intestate. The declaration contained several counts, alleging, 1. That January 1, 1809, Roberts, being indebted to Caleb Hopkins, upon whose estate the plaintiff is administrator de bonis non, in the sum of $860, upon an account annexed to the writ, in consideration thereof promised Hopkins to pay him that sum. 2.

Assumpsit, on a promissory note, made by one Emery as principal, and the defendant as surety, payable to one Hawes, or order, and by him indorsed to the plaintiff. The defendant, haying released Emery, the principal, offered in evidence the deposition of Emery, to prove that the words, “or order,” had been inserted in the note after its execution, and without his knowledge, by Emery, at the recptest of the payee.

<p>Asstjmpsit for money had and received.</p> <p>The defendant pleaded the general issue, and filed a brief statement, setting forth that a judgment was recovered by Meshech B. Trundy against him, as trustee of Josiah D. Smith, the plaintiff’s intestate, August term, 1831, upon which he should rely as a bar to this action.</p> <p>It appeared that the intestate, on the 27th of September, 1828, sailed as one of the crew of the schooner Sarah Atkins, from the port of Portsmouth, to the south seas, on a sealing voyage—that a letter was received from him, dated on board said vessel, at the Falkland Islands, April 14, 1829— that neither said Josiah, or said schooner, has ever since been heard of, except by some rumors respecting the vessel, which never have been traced to any authentic source.</p> <p>Testimony was introduced to prove the dangers of the sealing voyage, and to show the presumption that the vessel and crew were lost within two years from the time the schooner sailed from the port of Portsmouth.</p> <p>Previous to April 14. 1829, a quantity of skins were taken by the Sarah Atkins, put on board another vessel, sent to London, and sold there. The proceeds were received by the defendant, in November, 1829, and the defendant had acknowledged that the part of the proceeds he received, belonging to said Josiah, was about $72.</p> <p>The intestate was horn October 2, 1S09.</p> <p>Letters of administration on his estate were granted to the plaintiff, Anna C. Smith, August 10, 1836 ; and after her appointment she requested the defendant to pay over the monies, so received, to her, which he declined doing, having previously paid over the amount in his hands, on a judgment against him, as trustee of said Josiah, as hereafter stated.</p> <p>In 1828, the intestate was a partner in business, a short time, with one Staples, which partnership was dissolved prior to September 27, 182S.</p> <p>Meshech B. Trundy, having a note against the partnership, commenced an action thereon, returnable January term, 1829, in which the defendants were described as of Portsmouth, on which he attached certain goods of the partnership ; and he took judgment against them, without any continuance, both of them being absent from the state at that time, and when the action was commenced. Execution issued, and was satisfied in part, leaving a balance of ,$57T2.</p> <p>On the 23d of September, 1830, Trundy brought a new action against them, founded on the judgment, and summoned the defendant as trustee. This action was returnable to the superior court, January term, 1831, and the sum demanded in damages was one hundred dollars only. The action was continued to the next term, for notice to the defendants, and a notice was published, by order of court, in a newspaper.</p> <p>Judgment was rendered in said suit, at the next term, against the principals, and against the defendant as trustee of the intestate.</p> <p>It appeared that Trundy gave the defendant an obligation to indemnify him against any liability he might incur in consequence of consenting to a judgment against him as trustee, and he paid over the money upon that judgment.</p> <p>The parties agreed that if this action could be sustained on these facts, judgment should be rendered for the plaintiff, otherwise for the defendant.</p> <p>1. We contend that the judgment in the suit, Trundy against the plaintiff’s intestate, is a bar to this action. The court will only enquire if there be such a judgment. If the subjeet matter is within the jurisdiction of the court, the judgment until reversed is conclusive. 1 N. H. Rep. 35; 7 T. R. 269; 11 Mass. R. 507; 15 Mass. R. 186 ; 5N. H. Rep. 259.</p> <p>2. If the court shall discover defects in the judgment, which might induce them to reverse it if regularly before them for the purpose of being reversed, they will not consider these defects in this suit. They cannot be examined collaterally. A judgment cannot be reversed in this side way. 15 Mass. R. 185 ; 2 H. Black. 415 ; 2 Burr. 1008 ; 1 Johns. Cas. 436 ; 9 Mass. R. 125; 13 Pick. R. 381; 3 Pick. R. 33 ; 1 Pick. R. 435, in which case the court will find this doctrine distinctly laid down and adopted.</p> <p>3. If this judgment were reversed, the plaintiff’s remedy would not be against this defendant, but against Trundy, the plaintiff in the suit against the plaintiff’s intestate. If this judgment were reversed, Trundy would hold funds received upon a void judgment. He now holds the funds by the force of the judgment; and when that force is removed, he is clearly liable to the rightful owner. It would be so on general principles. And our statute regulating trustee process (p. 504, § 14) clearly protects this defendant. He is a stranger to the judgment of Trundy vs. Smith.</p> <p>4. The case finds that the plaintiff’s intestate was a minor when his earnings went into the hands of the defendant. We contend that the earnings of a minor go to the father or guardian, and not to his administrator.</p> <p>contended for the following propositions. 1. Smith was dead when Trundy took judgment against him, at August term, 1831. A judgment against a deceased person is unlawful, and may be set aside at any time on motion. 3 Bos. & Pul. 549, Taylor vs. Harris; 4 Taunt. 884, Ireland vs. Champneys. The court could have no jurisdiction of the suit against him, on account of his death. The action which Trundy commenced against Smith & Staples was founded upon a joint debt, against them as copartners. Upon the death of Smith, the action survived against Staples. Bac. Abr., Obligation; 1 C kitty’s PI. 137.</p> <p>2. The court had no jurisdiction of that suit, because the sum demanded in damages did not exceed the sum of one hundred dollars. The statute of January 2, 1829, giving the superior court concurrent jurisdiction with the court of common pleas, in personal actions wherein the sum demanded in damages shall exceed one hundred dollars, was in force when Trundy commenced his second action, on the 24-th of September, 1830. N. H. Laws 510. The want of jurisdiction appeared upon the face of the papers. This is a fatal objection to the whole proceedings. 9 Johns. R. 239, matter of Ferguson ; 2 T. R. 644, Owen vs. Hurd; Bull. N. P. 66, 83; 1 Binn. 138, Mannhardt vs. Soderstrom; Ditto 219, Moore vs. Wait; 2 Dali. 368, Ketland vs. The Cassius ; 3 Dali. 19, Bingham vs. Cabbot. Three of the cases cited by the defendant’s counsel, viz., 11 Mass. 507, Smith vs. Rice ; 1 N. II. Rep. 35, Tilton vs. Gordon ; and 9 Mass. 125, Boring vs. Bridge, are authorities, by legal inference, to show that if courts have no jurisdiction, the proceedings are void.</p> <p>3. Neither the first or second writs in favor of Trundy were ever served upon Staples or Smith, in the mode prescribed by the statute, or any other mode. No judgment against a person, without notice of the suit, can be sustained unless in specified cases, viz., after two continuances, and filing a bond to respond judgment on review ; or after six continuances ; or unless the debtor lives out of the state, or his residence be unknown when his property found in the state is attached, and public notice given in the newspapers. Vide 13th and 14th sections of the act of January 2, 1829 ; N. H. Laws 92, 93.</p> <p>4. The defendant was guilty of legal collusion with Trun-dy, to defraud the heirs and creditors of Smith. His taking a personal bond for his indemnity goes to corroborate this matter. He cannot avail himself of the judgment, for that reason. 13 Mass. R. 153, Hull vs. Blake; 3 Caines’ R. 129, Coffin vs. Tracy ; Peake's Ev. 76.</p> <p>5. The position that the earnings of a minor do not go to his administrator, we think is not sound.</p>

Motion to set aside a judgment, and recommit the report of a referee. Cochran, the appellee, as administrator of an estate in which Brown and his wife were interested, settled his account of administration in the probate court, and they appealed from the decree of allowance, objecting to certain charges of the administrator.

Tboveh, for a yoke of oxen. It appeared in evidence that the cattle originally belonged to one Peter Sanborn, who sold them to one Webster, in payment of a debt, August 30, 1832; and the plaintiff, who is a son-in-law of Sanborn, bought them soon after of Webster. There was evidence tending to show that this purchase was made by the plaintiff, for the benefit, and on the account, of Peter Sanborn.

The appellee, as administrator of the estate of Deborah Coffin, filed a petition in the probate court, praying for license to sell real estate, for the payment of debts. The judge of probate, upon consideration of the petition, made a decree granting the prayer of it, from which the appellants, who were purchasers of the share of one of the heirs at law, claimed an appeal—Because, 1.

Assumpsit. The declaration contained two counts upon promissory notes payable to J. Stevens, Jr., and indorsed, and a third count for money had and received. The defendant was defaulted. Held: at the time, the note in question, signed by the defendant, and inserted the count for money had and received, with the view and purpose of securing that note along with the others.

Debt on a bond given by the defendant and others to obtain the discharge of Isaac duimby, one of the signers, from arrest, on an execution in favor of the plaintiff, in pursuance of the law for the relief of poor debtors. The action was commenced November 23, 1839, and was submitted to the determination of the court on a statement of facts. The arrest was made at Sandwich, in this county, November 22, 1838, and the bond given and dated the same day.

Tbespass, for breaking and entering the plaintiff’s close in Rochester, hounded, &c., destroying the plaintiff’s crops, throwing down the foundation wall for a dwelling house, breaking down and destroying the plaintiffs fence, and building a fence across the premises. The action was commenced before a justice of the peace.

Trover, brought to recover a cow, property of the plaintiff, alleged to be of the value of fifty dollars, and a calf valued at five dollars, converted by the defendant to his use.

Covenant broken, founded on an obligation as follows : “ The condition of this agreement is, that Winthrop Bagley, of Thornton, in the county of Grafton and state of New-Hampshire, agrees to sell, and George W. Chamberlain, of Gilmanton, in the county of Strafford, in said state, agrees to buy, the lot of land and all the buildings thereon, situated at Meredith Bridge Village, now occupied by Nathan Bagley, for twelve hundred dollars ; and said Winthrop Bagley agrees to give…

Replevin, for nine cows, impounded by the defendant in the common pound in Middleton. On trial, it appeared that the plaintiff in 1833 and 1834 occupied a pasture by parole permission of John York, Jr., who held the same by a conveyance from James Goodwin, executed in 1832, and that the defendant owned and occupied a pasture, contiguous to that occupied by the plaintiff, which he purchased of one Norton Scates in 1830.

Assumpsit, on a promissory note dated October 31, 1835, for $2T89, payable to one John Cloutman, or order, on demand and interest, and by him indorsed to the plaintiff. The signature and indorsement of the note were admitted. The defendant offered in set-off his account against the said Cloutman, and proved that in March, 1838, the note in suit was in the possession of the payee.

Indebitatus assumpsit, on account annexed. The account was submitted to an auditor, and the action was transferred to this court for the decision of questions raised in the auditor’s report. The defendants are described in the writ as Edwin R. Locke and John F. C. Hayes, formerly partners under the name and firm of Edwin R. Locke & Co. Suit was brought against the firm, but Hayes being without the government no service was made upon him.

Tkover for a horse. It appeared on the trial, that on the 23d day of January, A. D. 1835, one John A. Drew was the owner of the horse in question ; and on that day mortgaged him to the plaintiff, together with divers articles of household furniture.

Assumpsit. It appeared in evidence, that on the 14th day of July, 1837, the plaintiff, a deputy of the sheriff of this county, attached certain property on a writ against one James Cook, and delivered it to the defendant for safe keeping. The defendant gave the plaintiff a receipt for said property, promising therein to deliver it to him on demand.

Assumpsit, to recover the price of a threshing machine, alleged to have been sold the defendant by the plaintiff. It appeared, that before the alleged sale to the defendant, the machine had been sold by the plaintiff to one Buzzell, and the plaintiff contended that, by the agreement of all parties, the contract of sale to Buzzell had been rescinded, and that the defendant became the purchaser.

Trover. The case was submitted for the opinion of the court upon the following statement of facts. On the 24th day of February, 1837, certain personal property of the defendant was attached upon mesne process. The plaintiff, II. H. Robinson, and George P. Avery, gave a receipt to the officer for the property attached, promising therein to deliver it on demand, in as good condition as it then was, free from all expense to the officer, or to the attaching creditor.

Writ of error, to reverse a judgment of the court of common pleas. At the January term, in the year 1839, of the court of common pleas for this county, the plaintiff in error was indicted for burglary. The indictment set forth that the said Jones, in the nighttime of the 14th day of January, 1839, broke and entered the house of one Coffin, at Alton, and stole therefrom a silver watch.

Indictment, for making an assault with a “ basket knife” upon one Reuben Hayes, with an intent to kill him.

Whit of entry, to recover twenty-five acres of land in Barrington, in the comity of Strafford. Plea, nul disseizin.

Tiiespass, for taking and carrying away the plaintiffs’ horse. The plaintiffs’ title to the horse was founded on a mortgage of February 14, 1837, recorded in the office of the clerk of the town of Sandwich on the day of its date, and executed by Ambrose Hall to the plaintiffs, to secure the payment of a note signed by Hall, and given for the price agreed to be paid for the horse to the plaintiffs, of whom Hall purchased him.

Assumpsit, on an account annexed to the writ, for one cord of wood. The plaintiff, who lived in Rochester, proved, that in the summer of 1837, he and the defendant were together near the defendant’s dwelling house in Great Falls Village, in Somersworth, and the plaintiff was there unloading from his cart, upon the premises of the defendant, a load of wood, containing about one cord.

Petition for a highway in Gilmanton. and certain other towns in the county of Strafford. The petition having been committed by the court of common pleas to a committee to lay out said highway, upon the coming in of the report of said committee laying out the same, to its acceptance it was objected, 1. That no original notice was issued by said committee to either of said towns, or any of the owners of the land over which the highway passes. 2.

Assumpsit, upon a promissory note of the defendants, dated July 20, 1836, for $ 15-000, and payable to the plaintiff or order in one year from the first day of August then next, at one of the banks in Portland. The case comes here upon an agreed statement of facts. The writ is dated August 26, 1837.

In Equity. The bill alleges that on the 19th of August, 1827, John E. Kelley, jr., David Heath, and John E. Kelley, sen’r, executed a promissory note, by which they jointly and severally, promised Benjamin F. Rogers & Co., or order, §765, in two years, with interest, which note Rogers &, Co. indorsed to the plaintiff—that on the 21st of August, 1829, Heath, for the purpose of securing the payment of the note in part, executed to the plaintiff a mortgage deed of two tracts of…

Assumpsit upon a promissory note, signed by the defendant, March 29, 1833, for $369, payable to R. T. Crane & Co. or order, in six months, with interest after, and indorsed to the plaintiffs. It was admitted that Moses G. Atwood, one of the signers, was the principal debtor, and the defendant a surety, and that this was known to the agents of the plaintiffs when they took the note.

SciRE facias against bail; submitted to the determination of the court upon a case stated. At the September term, 1836, Solomon Phelps recovered judgment against Moses T. Crowell, for $68T3, debt, and $6 '77, costs. The action was founded upon a contract made subsequent to Jan. 1, 1819.

Tkoyer, against the defendant, as sheriff of the county of Merrimack, to recover the value of certain stock and farming utensils, alleged to belong to the plaintiff. The plaintiff was an infant, and sued by David Tenney, his guardian.

Assumpsit on a promissory note. Upon the trial, the plaintiff offered the deposition of a witness, taken before a justice of the peace for this county.

Assumpsit. The declaration contained five counts. The first was upon an account annexed for books, and the second was for money had and received.

Trover, for certain articles of household furniture. It appeared that in the year 1834/John Lake/3d, a son of the defendant, was married to a daughter of the plaintiff. Before the marriage, the plaintiff had procured the furniture in question, for the use of his daughter, but had said that he did not intend to give her any thing.

Tbkspass, for breaking and entering the plaintiff’s close, iu Warner, in this county, on the 29th day of December, 1837, and taking and carrying away one waggon, and two sleighs, the property of the plaintiff. The writ in this case was issued on the second day of January, 1838. At the time of the alleged trespass the defendant was a deputy sheriff of the county of Merrimack.

Assumpsit, for money paid, laid out and expended. This cause came before this court upon the following agreed statement of facts : In 1835, or 1836, the defendant and William Abbot purchased a house and land of John J. Ayer, in Concord, and took a conveyance of it.

Assdmpsit, upon a promissory note, dated July 21, 1835, for $350, and payable to the plaintiff, or order, in two years, with annual interest.

Assumpsit, for money had and received. This case came before the court upon an agreed statement of facts, by which it appeared that the right in equity of James Mason, since deceased, to redeem a tract of land mortgaged by him, was levied on execution, and sold pursuant to the statute, to the defendant and one James Busweli, for 0410. The defendant and Busweli entered into possession of the property, and put a tenant into the occupation of it at the rent of 050.

Assumpsit. The first count was upon a note dated January 3, 1839, for ¾>440.75, made by the defendant, and payable to the plaintiffs, or their order, in six months.

Assumpsit, upon a promissory note, dated November 18, 1835, for $3963-12, payable to the plaintiffs, or order, on demand, and interest. Held: in some measure, for the benefit of Guild, the plaintiffs offered to prove that on the 4th of January, 1832, Guild was appointed guardian of one Ephraim A. Searle, a minor, and on the same day gave a bond to the judge of probate, in the penal sum of |⅜10'000, with the plaintiffs as his sureties, conditioned well and truly to disharge…

Assumpsit upon a promissory note, dated April 4, 1837. Upon the introduction of the note, in evidence, it was apparent that the date had originally been written, “ May 4, 1837,” and that it had, at some time, been altered to “ April 4.” The defendant contended, that it was incumbent on the plaintiff to show that this alteration was made before the note was executed. No evidence when the alteration was actually made, was offered by either party.

Trover, for a sled. It was in evidence that the defendant took the sled from Moore’s tavern, in Chelmsford, Mass., without authority—used, and broke it—and returned it to the same place. The parties reside in this state.

Assumpsit, for money had and received. On the trial, it appeared in evidence that on the 8th of April, 1S37, Frederick Lovejoy and John Holt were in partnership, and were possessed of 46 horses, four stage coaches, one carryall, one stage waggon, two stage sleighs, and the harnesses belonging to the same, and used with them; and on that day said Frederick Lovejoy conveyed to the plaintiff, Abiel Lovejoy, by a mortgage deed, “ one undivided half, being all his right, title,…

Indictment, for not repairing a highway ; found at the August term, A. D. 1839, of the court of common pleas for this county. The case was submitted to the court for decision upon an agreed statement of facts.

Foreign Attachment. It appeared, from the disclosure of the trustees in this case, that on the 22d day of November, A. D. 1839, the defendant made an assignment of his property to the trustees, for the benefit of his creditors. On the same day the trustees took possession of the property by virtue of the assignment.

Foreign Attachment. It appeared, from the disclosure of tlie alleged trustee, that prior to the 13th day of July, 1838, certain creditors of the defendants had attached their personal property, and on that day a written agreement was made and signed by the attaching creditors, the defendants, and Paige the trustee, providing that Paige should take the possession and control of the property, and sell it in such time and manner as he should judge to be for the mutual interest…

. Case. The declaration set forth that the town of Temple, on the 16th day of April, 1838, were seized and possessed of a certain meeting-house, and had the right to sell the same by agents duly authorized—that said town, at a legal meeting on said 16th day of April, voted to sell at public auction all the right of the town in the house as a place of religiorrs worship, on the following conditions and reservations, viz. : reserving to the town the right of using the house…

Assumpsit, for money paid, &c. The writ was dated May 27, 1839. For pleas, the defendant filed the general issue and statute of limitations. The action was brought against the defendant for contribution, and was tried at the August term of the court of common pleas for this county. 1840.

Assümpsit, upon a promissory note, dated July 19, 1834, for $36-00, payable to the plaintiff, or order, on demand, with interest. The declaration contained also a count for money had and received. The action was tried at the February term of the court of common pleas in this county, A. D, 1840.

In Equity. The bill alleged, that on the 15th of April, 1839, the plaintiff, George Buffum, borrowed of the defendant, Esek Buffum, $332-00, and gave his promissory note therefor, payable in one year, with interest; and at the same time conveyed to the defendant, by an absolute deed, a certain farm lying in Richmond, the only consideration of said conveyance being said sum of money borrowed—that, at the time of making the deed, it was expressly agreed between the parties,…

Trespass, for breaking and entering the plaintiff’s close in. Alstead, and carrying away his grass. Plea, the general issue, with a brief statement, that the close was the soil and freehold of the defendant. It appeared in evidence, that, prior to June 1, 1835, the close was part of a farm belonging to Sylvester Partridge.

Debt, upon a bond dated August 26, 1839, in the penal sum of $1000, made by the defendants, Bigelow as principal, and Bennett as surety, and payable to the plaintiff on the condition following : “ That if the said Bigelow and Bennett, or either of them, shall pay or cause to be paid, all debts, dues and demands against the company of Raymond & Bigelow, contracted by the said Bigelow in the name of the company, and shall save and keep said Raymond harmless from all such…

FoReign attachment. In this case the trustees disclosed that the principal debtor, Kimball, executed to them an assignment of certain property described as follows, viz.: “all and all manner of goods, chattels, debts, demands, moneys, and all other things of the said Kimball whatsoever, as well real as personal, of what kind, nature or quality soever, in the schedule hereunto annexed particularly mentioned and expressed.” This property was assigned to them in trust, to be…

Wjíit of entry, to recover a tract of land in Cornish, wherein the plaintiff counts upon his own seizin in fee, within twenty years, and a disseizin by the defendant. The defendant pleaded that he was not guilty of disseizing the plaintiff in manner and form, &c.; on which issue was joined.

Covenant. The declaration alleged, that the defendant and one Daniel March, (since deceased), on the 27th day of January, A. D. 1837, by their deed of that date, &c., sold and conveyed to the plaintiffs a tract of land in Wendell, “ beginning at a beech stub marked, thence 'south about 61° east, about 170 rods, to Sunapee Lake, on the line of land formerly owned by Abial Cooper; thence northerly on the lake,” &c. ; and that said Young and March, in and by said deed,…

Case against the sheriff of the county of Sullivan, for the neglect of his deputy, Jeremiah Newell.

In equity. An abstract of the bill and answer may be found, 9 N. H. Rep. 230.

Assumpsit, for money had and received, for which it appeared a promissory note for $50, due from the defendant to the plaintiff’s intestate, dated June, 1833. and payable in one year with interest, had been originally given. The plea was the general issue. It appeared in evidence, that the defendant became indebted to Ambrose Foss, the plaintiff’s intestate, in June, 1833, on the note declared on, which was given for a colt, sold by Foss to the defendant.

Debt, upon a bond dated October 31, 1836, given under the act of January 3, 1833, for the ease and relief of poor debtors ; the condition of which was, that if Lemuel Stevens, jr., a prisoner at the suit of the plaintiff, should, within one year from the day of his arrest, to wit, &c., apply to the proper authority, and actually take the oath or affirmation prescribed by the laws of this state for the relief of poor debtors, or in default thereof should surrender himself up…

Writ of entry, to recover a tract of land situated in Enfield. A diagram of the lines of Enfield and of the adjoining towns will be found in 5 N. H. Rep. 281, Enfield vs. Permit. The tenant originally pleaded mil disseizin.

Writ op entry, brought to recover a tract of land in Grafton, consisting of two small islands, in the river, near the Low Meadows, so called, in Grafton, containing about three acres. The plaintiff gave in evidence a deed from John Kilton to Daniel Butterfield, of the demanded premises, dated April 1st, 1830.

Assumpsit, on a promissory note of December 8,1837, for $150, drawn payable to the plaintiff, or order, on demand, with interest annually, signed “ Brewer, Gilchrist & Harvey.” The plaintiff declared in two counts, alleging in the first count that the defendants subscribed the note by the name of “ Brewer, Gilchrist & Harvey.” The second count was for two hundred dollars money had and received.

Complaint for an assault and battery, which was tried before a justice of the peace, and was brought to this court by appeal of the respondent. On the trial it appeared that the complainant, one Mrs. Moore, had formerly lived, with the permission of the owner, in a small tenement some four or five years, paying no rent, and that there were no windows in it.

Assumpsit. -'The declaration contained four counts. The first count alleged, that on the first day of September, 1824, the plaintiff and one Edward Pickett made an agreement with the defendant, by which they were to take a piece of land of him, to sow upon shares.

Tbespass, for taking and carrying away forty-eight white pine and twenty Norway pine logs.

Assumpsit, for goods sold, money had and received, and money paid. Plea, the general issue. The plaintiff contended that the defendant, having in his hands property belonging to one Bernice Richardson, in consideration thereof, and with the assent of Richardson, promised the plaintiff to pay him the balance due on a note which he then held against Richardson.

Assumpsit, for the support of A. L. Pox, a pauper, who was alleged to have his settlement in the town of Centre-Harbor. The pauper derived his settlement from John Fox, who moved into Centre-Harbor in the year 1821, and purchased a tract of land of one Benjamin Brown. The land, at the time of the purchase, was incumbered by a mortgage to one John Towle, to secure the payment of the sum of $160.00.

Assumpsit. The defendant filed a plea of usury, to which there was a demurrer, and the plea was adjudged insufficient. Ante 66. He subsequently moved for leave to amend his plea.