Volume 14 — New Hampshire Reports

Assumpsit for a note for $111.34, dated June 7, 1826, made by one John Sayward and the defendant, and drawn payable to Jabez Dow, the plaintiff’s intestate, or his order, on demand and interest. The writ was dated July 22, 1839, Plea, the general issue and the statute of limitations. A report of a former trial of the ease may be found 12 N. H. Rep. 271. Some further evidence was offered on this trial.

Assumpsit upon a promissory note, dated January 29th$ 1842, signed by the defendant, for §50,00, and payable to the plaintiffs., or order, on demand and interest. The case was submitted to the determination of the court upon the following statement of facts.

Trespass quare clausum fregit. Plea, the general issue. The plaintiff and defendant were children of Elihu and Betsy Hayes, both deceased, who lived on a farm, part of which belonged to the husband in his right, and a part of it belonged to the wife in her right. The plaintiff owned the land of the husband, and the defendant owned that of the wife, and the question in controversy was, whether the acts were done on the land of the wife, or on that of the husband.

Assumpsit upon a promissory note, dated on the 28th day of June, 1834., for $98.00, made by the defendant, and payable to the plaintiffs, or order, on demand, with interest. The defendant pleaded the general issue, and filed a set-off, one of the items of which was the following : “ 1833, August 5.

Assumpsit. The declaration alleged that on the first day of July, 1832, it was agreed between Mrs. Ham and the defendant that she should deliver to and put into the possession of the defendant, two sheep, the property of Mrs. Ham, which the defendant was to have and keep from that day until the first day of July, 1836 ; in consideration whereof the defendant promised her that he would, at the expiration of the time, return and deliver to her four sheep ; and that she,…

Petition for leave to discontinue a highway. At a meeting holden on the ninth day of March, A. D. 1842, the town of Strafford voted to discontinue a highway laid out by a committee from the court of common pleas, on the petition of William Berry and others, and at the January term, 1843, of the court, filed this petition for the assent of the court to the discontinuance.

Debt on judgment. The defendant, as surviving partner of the firm of Colby and Emery, was summoned to answer to the plaintiff, surviving partner of James Abbot, for that the plaintiff and said James Abbot, then living but since deceased, by consideration of the Justices of the Supreme Court of Judicature, held in the Province of New Brunswick, &c., &c., the declaration concluding in usual form. The defendant pleaded nil debet, on which plea issue was joined.

Debt upon a bond, dated December 21, 1837, the condition of which recited that “ whereas said Hyde has this day collected of said Young the amount of certain military fines, by virtue of a precept issued by Henry A. P. 11 Hyde; and whereas said Young contends he is not liable to pay said fines, now if said Young shall prosecute said Henry for the recovery of any sum so paid by him as aforesaid, and shall • obtain judgment against said Henry for the same, and costs of suit,…

Assumpsit upon a negotiable promissory note of the defendant, dated August 11,1840, payable in four months from date, and duly indorsed by the payee. The case was submitted for the opinion of the court on an agreed statement of facts.

Assumpsit on two joint and several notes, signed by the defendant, Cephas Smith, and one Sally Smith. Both notes-were dated July 18, 1839, each for $115, with interest, and payable to the plaintiff, or order, the one in nine, the other in eighteen months from date. Plea, the general issue.

Assumpsit upon a promissory note, dated February 21, 1840, for $50, signed by the defendants, and payable to one Jeremiah M. Rollins, or order, in one year from its date, with interest, and by Rollins indorsed to Walter G. G. Emerson, and by Emerson to Nathaniel Willey, and by Willey to Z. Batchelder, and on the 6th day of February, 1841, indorsed by Batchelder to the plaintiff. Plea, the general issue.

This was an action of debt, founded upon an award of arbitrators, dated January 12, 1839. The action was commenced July 20, 1839, and tried at April term, 1841. The articles of submission bore date December 15, 1838, and were of all demands and claims then existing between the parties. The arbitrators awarded that Yarney should recover of Brewster the sum of $33.90, and the award was made and dated January 12, 1839.

Hoitt, deceased. The appeal is dated April 28, 1838. The register certifies that the appeal and declaration were filed in the probate office t! on the 9th day of June, 1838, being within thirty days of the acceptance of the report of the commissioner.” The declaration filed with the appeal was in assumpsit, containing two counts, viz: as for goods sold and delivered, and for work and labor. A specification under these counts was filed at the August term, 1838.

Plea or Land, situated in Meredith, containing fifty-four square rods. The plaintiffs claimed said premises by virtue of a levy upon the same, made on an execution issued at the February term of the C. C. P., 1841, against J. P. Hill. The regularity of the levy was not contested, but there was some evidence tending to show that said execution was for f 50 beyond the actual indebtedness of said Hill.

Trespass, for breaking and entering the plaintiff’s close, being part of lot No. 15, in the fourth range in Gilmanton, on the first day of January, 1838, and carrying away certain mill logs, &c. To shew his title to the loans in quo, the plaintiff put in a deed from one Badger to one Young, the plaintiff’s ancestor, dated January 15, 1811, conveying to him “all of lot No. 15, in the 4th range, except fifty acres by measure off of the south-west end of said lot.” There was…

<p>Trover. The writ bore date July 8, 1.842, and was founded on three receipts, given by the defendant to the plaintiff, for property attached by him as a deputy sheriff on a writ John L. Perley vs. John L. Perley and William Brown, as copartners, dated April 10, 1840. Two of said receipts were dated April 13, and the other April 14, 1840. The last named writ was entered at the next August term of the court of common pleas, when it was amended, by leave of court, by striking out the name of John L. Perley, one of the defendants; and judgment was rendered for the plaintiff in March, 1842, and a demand was made upon the present defendant, for the articles receipted for, within thirty days thereafterwards. The property went into the possession of the defendant at the date of his receipts.</p> <p>William Brown, a defendant in the original suit by Perley, petitioned in bankruptcy, Feb. 15, 1S42, arid was discharged Sept. 21, 1842.</p> <p>The writ, Perley vs. Perley and Brown, was founded in part on an account annexed, which contained items against Brown individually, and others against Perley and Brown as partners, but judgment was rendered only on the items against Brown individually.</p>

Assumpsit against the defendant, as indorser of a promissory note, made by David J. Lancaster and William Richardson, dated September 1, 1835, and payable to the defendant, or order, in one year from date, with interest, and by him indorsed to the plaintiff. On or about the first of August, 1835, the plaintiff, being ' the owner of certain stage property, sold the same to the defendant for f 1125.

Assumpsit upon a promissory note, of which the following is a copy : “ Wakefield, August 25, 1835. For value received we jointly and severally promise to pay to Luther D. Sawyer, or order, at the Suffolk Bank, in Boston, two thousand dollars, in three years, with interest annually. |2000. Signed, John Wingate, Caleb Gilman, Alvah H. Sawyer, Isaac B. Chesley, Joshua G. Hall, Theodore Gilman, Richard Russell, Luther D. Sawyer, Henry L. Wiggin.

Debt on bond, given to abide the award of arbitrators. The bond contained a penalty, and also a condition, that, “ if the said Blaisdell (the defendant) his heirs, executors and administrators, on his or their part and behalf, shall and do in all things well and truly stand to, obey, perform, fulfil and keep the award, order, arbitrament and final determination of, &c., then this obligation to be void, otherwise to remain in force.” The defendant was defaulted, and moved the…

Foreign Attachment. The trustee, in answer to the general interrogatory, disclosed, that at the time of the service of the plaintiff’s writ there was an unsettled account between the said Stephen F. Berry and himself, which account still remained unsettled at the time of the disclosure ; —that he should think there was and still remained due to the said Stephen F. Berry, from him, the sum of thirty dollars;—that the said Stephen F. Berry claimed as due from him the sum of…

Assumpsit, for money paid, laid out and expended to recover of the defendant a portion of the State tax on Dame’s Gore, an unincorporated place in this county, for the years 1835, 6, 7, and 8. The plaintiff offered a deed of the Gore from Theophilus Dame and wife to the plaintiff, dated November 5, 1787, acknowledged the same day, and recorded September 20, 1788, and proved that he had claimed title under the deed, and had sold out portions of the Gore to various individuals.

Trover, for two hundred thousand feet of white pine logs. The timber was alleged to have been cut on lot 26, in the second division in the town of Brunswick, in the State of Vermont, to which the plaintiff claimed title; and to show an allotment of the township, the plaintiff introduced a copy of a charter of the township of Brunswick, granted by Benning Wentworth, governor of the province of New-Hampshire, dated October 13, 1761, to which the defendants excepted that the…

Dower, wherein the plaintiff, as the widow of Caleb Young, deceased, demanded her dower in lot No. 14, on the west side of the Ammonoosuck, river in Lisbon. The case was submitted to the court upon a statement of facts. The defendant Foster resides upon the place which is owned by him and Dyer Hibbard, the other defendant, .jointly. Hibbard does not live on the farm, and did not at the time of the commencement of the suit.

The-claim was founded upon certain notes signed by said Warren and justly due to the appellant. Administration was taken in Connecticut, and ancillary administration in this State. The appellant is a citizen of Vermont. Prior to the determination of the commissioners appealed from, he had presented his claim to commissioners of insolvency in Connecticut, and it was allowed him.

Assumpsit. Since the commencement of the action, the defendant had filed his petition in the district court, and been declared a bankrupt under the act of Congress passed August 19, 1841. The plaintiff now moves for leave to discontinue the action, without costs.

<p>A brother to a surety in a poor debtor’s bond may act as a magistrate in discharging the debtor.</p> <p>If a party be summoned to appear at a given hour, he will be in season if he appear when or before the next hour is struck.</p> <p>A party who attends at a given hour, pursuant to notice, and finds that the magistrate is not arrived, is bound to wait until the expiration of the hour.</p> <p>If the other party is not present, he is bound to wait the same time before taking any steps that may prejudice the rights of his opponent.</p> <p>In all cases, the party giving the notice is hound to wait until the expiration of the hour for his opponent to appear.</p> <p>A creditor was notified that a hearing upon a poor debtor's application to be admitted to take the oath, would be had at a certain place at 3 o’clock, P. M. The debtor appeared at the time and place, took the oath, and went away. In a few minutes after he was gone, after throe, but before four o’clock, the creditor’s attorney appeared with his witnesses, and requested the magistrates to recall the debtor, that he might examine him, and have a hearing upon the application, but they declined so to do.—Held, that the certificate of discharge, issued by them to the debtor, was invalid.</p>

Assumpsit upon a promissory note. The writ was dated on the 15th day of August, 1842, and served on the 18th of August. The defendant filed his petition to be declared a bankrupt, in the district court of the United States for this district, notice upon the petition was given, and a hearing ordered to be had thereon upon the 18th day of October, 1842. Upon the foregoing facts, the counsel for the defendant moved that the action be dismissed.

Foreign Attachment. On the 8th day of April, 1841, the trustee was appointed administrator of the estate of Samuel Ladd, late of Haverhill, deceased. The estate was administered in the insolvent course, and a commissioner was appointed in the month of October. Before the service of the trustee process, the principal debtor presented a claim against the estate, which was allowed by the commissioner.

<p>The pJaintiff, having a claim against the defendant for services, the matter was submitted to arbitrators, who awarded in favor of the plaintiff. He then brought an action against the defendant to recover the value of his services, and offered in evidence the depositions and award of the arbitrators. Held, that they were incompetent upon the issue between the parties, as being merely the opinions of the arbitrators that the plaintiff ought to recover.</p> <p>Where the plaintiff renders services under a special contract which he after-wards violates, and then brings an action to recover the value of his services, the defendant may set off any payments he has made on account of the services, and the damages he has sustained by the breach of the contract. If they are equal tctlie value of the services, the plaintiff is not entitled to recover. If they fall short of it, the plaintiff may recover a sum equal to the difference between them and the value of his services.</p>

Assumpsit upon a promissory note, dated on the 31st day of March, 1838, made by the defendant, payable to one Ira Coffin or order, and by him indorsed. It appeared in evidence that the note was given for a part of the purchase money for a quantity of shingles ; that the contract for the shingles was made on the Sabbath, and the note executed and delivered on the same day, but dated on the day previous.

Assumpsit, against Benjamin Ellis, Moses P. Little and .the defendant, alleged to be partners under the name of Ellis, Little & Co., as acceptors of a bill of exchange drawn by Moses P. Little, payable to his order at the Market Bank, in Boston, three months after date, and indorsed to the plain•tiffs. No service was made upon Ellis, nor upon Little. Moore pleaded that he did not make the promise alleged jointly with Ellis and Little.

Assumpsit on a promissory note, dated on the 18th day of December, 1835, for the sum of $79.15, made by the defendant, and payable to the plaintiff, or order, on demand, with interest. The action was commenced on the 22d day of May, 1839.

Trespass, for taking and carrying away a quantity of hay, at Cabot, in Vermont. Plea, the general issue, and a brief statement.

Assumpsit, upon an account annexed to the writ for tolls for the passage of lumber through the locks and canals of the plaintiffs, at Montague, on the Connecticut River. The following facts appeared in evidence. In the year 1840, one Sanborn was employed by Abbott and others to freight lumber to the Hartford market,'by the thousand, and he was to pay the tolls thereon.

Appeal, from an allowance made by the commissioner of Alzo Rich’s estate, in favor of Goodall, on the following claims, viz : first, on said Rich’s note for $1000, dated December 31, 1835, payable to one Jordan, or order, and by him indorsed to one Dewey, and by said Dewey to said Goodall; second, for $26.28, expenses paid by Goodall in a suit against Rich, abated by his death and the insolvency of his estate ; third, for $1250, had and received by Rich to the use of…

Petition, alleging that on the 24th of March, 1834, one Benjamin Fay was seized in fee of a certain tract of land, and on that day mortgaged it to the defendant, with condition to indemnify him as surety with others on a note signed by Fay; that on the 27th of January, 1836, said Fay mortgaged the same land to the petitioners, to secure a certain note payable to one of them, which is in no part paid, and which, together with the mortgage, is holden in trust for them jointly.

Bill in Equity. The bill, which was filed by Josiah Bellows, 2d, against David Stone and Josiah Bellows, 3d, partners, under the name of Stone &. Bellows, and against Thomas Bellows, states that prior to January 1, 1821, the orator was in partnership in merchandise with Thomas Car-lisle, of Lancaster, under the firm of Thomas Carlisle & Co., and was also engaged in various mercantile transactions in which Carlisle did not participate.

Assumpsit on three promissory notes, all dated in the year 1840, and payable to the plaintiffs, or order, and signed “ Farmer’s and Mechanic’s Company, by Greenleaf Cummings, Agent.” There were numerous defendants, all of whom were defaulted except two, who severally pleaded the general issue.

Assumpsit on a promissory note, dated on the 3d day of November, 1834, for $100.00, made by the defendant, and payable to the plaintiff, or his order, in sixty days, with interest. The note was given for a debt due the plaintiff from Samuel A. Pearson, and was signed by the defendant as surety for Pearson. At the trial upon the general issue, the defendant offered evidence tending to prove that the plaintiff had released him from his liability on the note.

Assumpsit. In this action the plaintiff seeks to recover a proportion of the value of certain timber and wood, cut and carried away by the defendant from a tract of land in Lang-don, in the county of Sullivan, at various times between the 17th of May, 1836, and the 30th of October, 1840. It appeared that, during that period, the plaintiff owned twenty-two sixty-sixths and the defendant one sixty-seventh part of the land on which the timber was cut, as tenants in common.

Petition for Partition. The petitioner represented that she was the owner in fee of one undivided fourth part of about forty acres of a tract of land in Westmoreland, and that Chaffee, and Betsy Hall, the wife of Camillus Hall, were the owners of the residue of the tract, and she prayed that she might hold her share in severalty. The parties agreed to the following statement of facts : Seth Britton died seized in fee of the premises.

Debt on a judgment of the court of common pleas for this county, rendered at the April term, 1837, accepting the report of a committee laying out a road from Chesterfield to Hinsdale, over land of the plaintiff in Chesterfield. The committee awarded him as damages therefor the sum of one hundred and seventy-five dollars.

Foreign Attachment. On the return of the writ, Huntington, one of the trustees, pleaded in abatement, that, at the time of the purchase of the writ, he was and ever since has been, sheriff of the county of Cheshire, and that Phineas Stewart, the deputy sheriff Avho served and returned the writ, was, at the time of the service and return, a deputy appointed by him, and as such deputy made the service and return. The plaintiff objected to the reception of the plea.

In Equity. The bill stated that on or about March 6, 1815, one Dearbon Emerson, of Groton, Massachusetts, was duly appointed by the probate court in Middlesex county the guardian of one Harriet E. Newman, a minor under fourteen, and that the plaintiff, Daniel Brooks, and David Childs, as sureties, executed a bond to the judge of probate for Middlesex, conditioned for the faithful discharge and performance of the office of guardian, by their principal, Emerson.

Writ of entry, to recover possession of a tract of land in Claremont. The demandants counted upon their own seizin in fee, and upon a disseizin by the tenant.

Petition, in the common pleas, for a highway from a certain bridge in Claremont to a certain house in Charlestown.

Covenant. The defendants were Thomas J. Harris and Jedediah H. Harris, sons of John Harris, deceased ; Elizabeth Harris, his widow; Levi… Held: &c., and was thereupon committed to said Thomas J. Harris for execution ;—that the estate was represented as insolvent:—that a commissioner was appointed on the 3d day of September, 1839, to receive and allow the claims of the creditors, who, after giving due notice, &c., made his report, and returned a list of the claims to the…

James Wellman, by deed bearing date on the 26th day of August, 1826, conveyed certain land in fee to his son, Joshua B. Wellman.

Assumpsit upon an account annexed to the writ, for goods sold and delivered. Plea, the general issue, with a set-off. At a preceding term the action was referred to a referee, who reported that an item in the plaintiff’s account was as follows: “To 3 gallons of N. 13. rum, $1.60.” The rum was sold without the license from the selectmen required by the statute.

Assumpsit, on a promissory note. The defendant pleaded that it was corruptly agreed between the parties, that the interest upon said note should be after the rate of seven and one half per cent, per annum, and that he paid interest in pursuance of such agreement, and he prayed that a deduction might be made, according to the statute.

Assumpsit, to recover damages for the breach of a contract of marriage. The action was commenced on the 22d day of May, 1840. At the trial of the case upon the general issue, the plaintiff proved that the defendant expressly promised to marry her, and that in the month of January, 1840, he was married to another.

Trespass, for driving against the plaintiff's sleigh with the wagon of the defendant, overturning it and injuring the plaintiff. It appeared that at the time of the alleged injury the defendant was driving a team of eight horses, with a load of four tons upon his wagon ; and the plaintiif offered evidence tending to show that at the time the parties met, the team of the defendant was at the left of the centre of the travelled part of the highway.

In Equity. The bill in this case, in which one Thomas Bailey was the other defendant, stated that Amos Bailey, yeoman, late of Hopkinton, died December 18th, 1834, leaving a will dated December 5th, 1831, which contained, among other things, the following clauses : “ Eighthly.

Assumpsit, upon a promissory note for $2000.00, dated February 23, 1841. payable on demand. The writ was dated June 16, 1842. Held: and that he agreed to give it up, if he got all his timber sawed, before its expiration. At that time he also admitted notice of a demand on the part of the bank for possession of the mills. The following facts were also in evidence with regard to the water rights, &c., belonging to the premises conveyed to the defendant.

Assumpsit, on a policy of insurance duly executed. The act creating the defendant corporation, (approved July 1, 1825) sect. 1, constitutes certain persons a body politic,” for the purpose of insuring their respective dwelling-houses, with their contents, against loss or damage by fire, whether the same shall happen by accident, lightning, or by any other means,” excepting in case of design, invasion or insurrection.

Trover, for some cattle and farming tools. The action was commenced and made returnable at the September term, 1839, by the plaintiff, who was then a minor, and sued by David Termey, his guardian, against the defendant, who was then the sheriff of this county, alleging the conversion on the 23d of July, 1839. The piainnii became of age since the last continuance, and now prcs«cutes the suit in his own name.

Assumpsit. A verdict was taken for the plaintiff, subject to the opinion of this court upon the following case. The action is brought by Jerome Sawyer, administrator de bonis non of the estate of Jabez Sawyer, to recover two hundred dollars, money had and received by the defendant, to the use of the plaintiff’s intestate. The writ is dated on the 28th day of February, 1843, and was served in March, 1843.

Foreign Attachment. The case was submitted to this court for decision upon the following facts. In the month of March, 1842, the trustees of the Asylum made an agreement with Theodore Abbot to supply them with a quantity of locks, and, before the service of the writ in this suit, he delivered the locks to the value of $55.13.

Indictment, for stealing twelve yards of broadcloth, of the value of $40.00, of the goods of Thomas R. Prentiss. On the trial, said Prentiss, who was called as a witness for the state, on cross examination testified that the cloth in question was the joint property of himself and his partner iu business.

Assumpsit, for money had and received. The action was commenced before a justice of the peace, and carried by appeal to the court of common pleas. The amount which the plaintiff claimed to recover was $2.00, paid, as he alleged, to the defendant by the minor son of the plaintiff, in satisfaction or compromise of a charge against his said son of stealing fruit from the defendant.

Trover, for a cow. The defendant, pleaded in abatement, because, at the time of the supposed loss and conversion the plaintiff had no interest or property in the cow, unless jointly and undividedly with one G. D. W., who was still alive, viz. : at Nashua, in said county.

Assumpsit. The defendant, at the August term of the court of common pleas, 1842, pleaded in abatement that, before the service of the plaintiff’s writ on him, to wit, July 27, 1842, he was summoned as trustee of the plaintiff at the suit of one William Brown, Jr., for a just demand of said Brown; that the process is still pending in the court of common pleas for the county of Rockingham, and the defendant not discharged, but remaining liable in said suit for all the money,…

In Equity. The bill set forth that John Howe, on the 4th of April, 1838, was the owner of certain lands in Hudson, described, &c., and contracted with the plaintiff to convey the same to the plaintiff by a good and sufficient deed of warranty, for the consideration of the sum of $2400, which the plaintiff paid to him on the same day ; that Howe, intending to fulfil the contract on his part, executed and delivered a deed of warranty, in common form, to the plaintiff, bearing…

Libel for a divorce, alleging that the husband (the libel-lee,) is and has been for more than three years past an habitual drunkard. The libel stated that the parties were married at Lowell, in Massachusetts, on the 21st day of July, 1833, but did not set forth any time as that at which they came to reside in New-Hampshire. They were, however, described in the libel as of the town and county of Hillsborough.

Assumpsit, for the support of one Esther Moore, a pauper, alleged to have her settlement in Lancaster, from the 15th day of January, 1839, to the 16th day of December, 1840, the date of the writ. At the trial upon the general issue it was admitted that the support was furnished to the amount of $192.25, and that the pauper stood in need of relief.

' Writ op Entry, to recover a tract of land in Litchfield, called the David Campbell farm. The action was brought on the 30th day of July, 1841, and the demandant claimed an interest in the land, as heir of Sally F. Underwood, deceased, who was the wife of John Underwood. The tenant pleaded mil disseizin, with a brief statement of the following matters in defence.

Covenant broken. The declaration alleged that the defendant, November 22, 1821, by his deed, &c., in consideration of two dollars and twenty-six cents, sold and conveyed to the plaintiff a tract of land in New Boston, bounded, The declaration then alleged a subsequent sale by the plaintiff, with warranty, an action against the grantee, a notice to the defendant to come in and take upon himself the defence, and that the plaintiff had been obliged to pay a large sum, by reason…

At a probate court for the county of Rockingham, in January, 1841, Rufus Kittredge, as administrator with the will annexed of George Kittredge, presented a petition setting forth that Thornton Betton, of Derry, in that county, was appointed Nov. 6, 1832, guardian of said George, then a minor, and took upon himself that trust, and that a large amount of the property of said George passed into his hands ; that the said George long since attained the age of twenty-one, but that…

Debt. The declaration alleged that the plaintiff and others, on the 18th day of September, A. D. 1835, leased certain premises for seven years to the defendants, reserving a rent of sixteen hundred dollars per annum, payable to the lessors and their assigns, in certain specified proportions, severally ; that the sum payable to the plaintiff was four hundred dollars, and the sum payable to George P. Willard, one of the lessors, was two hundred dollars; that on the 22d day of…

Assumpsit, on a promissory note dated on the 25th day of December, 1833. Plea, the general issue, and a notice of the statute of limitations. It was in evidence that on the L 3th day of May, A. D. 1842, Mr. Marston, who had the note in his office for collection, presented it to the defendant and requested him to pay it.

Assumpsit, on an account annexed to the writ, and for goods sold and delivered. Plea, the general issue.

<p>No cause of action accrues by reason of sales of spirituous liquors, the party haring no license to sell as required by the statute.</p> <p>But if payments hare been made on account of such illegal sales, the purchaser can not afterwards rescind them, nor insist upon their being applied to other and legal charges.</p> <p>A debtor paying money to a creditor who has several claims against him, may direct the application of the payment to which claim he pleases.</p> <p>If the debtor malee no such application, the creditor may, at the time, apply it to any demand then duo and payable.</p> <p>Whether he may make the application at any time before suit, queere ?</p> <p>But this right extends only to lawful claims.</p> <p>Where neither of the parties make the application, the law will, where there is no particular equity or reason for a different course, apply the payment to the earliest debt.</p> <p>One exception to this rule is, that if the earliest debt is not due and payable at the time of the payment, the law will apply it to the debt which had a later origin, but was then due.</p> <p>Where two charges of unequal amounts exist, the one legal and the other illegal, but the former not being then due and payable, and a payment is made generally upon account, if such payment be of no greater amount than the illegal claim it will be taken to have been paid upon the illegal claim, although not specially so directed.</p>

Replevin, for 13 bales of cotton. The defendant pleaded the general issue, with a brief statement, alleging that the cotton was the property of one Isaac Hayden ; that the defendant was a deputy sheriff, and had in his hands three writs of attachment against Hayden, one of which was in favor of the Despatch Line of Packets, and attached the cotton as the property of Hayden, and took it away by virtue of said writs, as he might lawfully do, &c. The plaintiffs admitted that…

Indictment, found at the January term, 1843. The first count charged that the defendant, “ of Somersworth, in the county of Strafford, trader, on the fourth day of January, A. D. 1843, at, Somersworth in said county, did unlawfully and without a license from the selectmen of the town of Somersworth aforesaid, the same being the town where the said John Moore then resided, sell to one Levi Hoit one pint of rum,” contra formam, &c. The second count was like the first, except…

Indictment, for selling spirituous liquors without a license.

Assumpsit, upon the following contract signed by the defendants : “ For value rec’d, we jointly &. severally promise to pay John Brown or order forty dollars, to be paid in wool skins at sixty-seven cents each.

Indictment, alleging that the prisoner, on the 21st day of October last, stole forty-five clapboard bolts, the property of Adam Brown and Moses P. Brown. Upon the trial, Adam Brown was offered as a witness, and objected to by the prisoner’s counsel, on account of interest in the event. He then agreed to release any claim of himself and Moses P. Brown lo treble damages, and it was entered of record.

Indictment, for not keeping a road in repair. It appeared in evidence that prior to the year 1834, a bridge, 37 rods long, was built by private subscription, connecting the towns of Gilmanton and Sanbornton, across the waters which lie helow Meredith Bridge, between that and Union Bridge, and which are formed by the river running from Winnipiseogee lake into said waters, and by other smaller streams from other directions.

iNuioTMEtsT, charging the defendant with having committed the crime of adultery with Betsey Welch, wife of Andrew Welch, on the 21st day of August, A. D. 1839. To prove the marriage of Andrew Welch and Betsey Welch, the following evidence was offered on the part of the prosecution : Andrew Welch testified, that in July, 1822, he was married to Betsey Davis (now Betsey Welch.) by Elder Nathaniel Berry.

Debt, upon a bond dated on the 19th day of February, A. D. 1824. The action was referred to William C. Clark, Esq., as a commissioner to assess the damages between the parties, and report to the court thereon, from whose report the following facts appeared, and thereupon the action was transferred to this court.

<p>Assumpsit. The case was submitted to the court for decision upon the following statement of facts :</p> <p>The action is brought on a promissory note, dated on the 8th day of August, 1837, on which are the following indorsements : “ Feb. 23, 1839. Received thirty-eight dollars seventy-five cents.” “Received interest on the within, up to Feb. 8, 1839.” The suit was brought at the January term, 1840, and shortly after its commencement, the defendant tendered to the plaintiff’s attorney the amount of debt and costs, which was refused, and the action was entered* The defendant, by mistake, did not appear at the term, but the action being continued for judgment to the April term, he then moved the court for leave to enter his appearance, which was granted. He then brought into court under the common rule, the sum of sixty-six dollars, the amount due on the note.</p> <p>It was agreed that such judgment should be rendered upon the foregoing facts as the court should order.</p>

Assumpsit, upon an account, on which the plaintiff alleged there was a balance due hint of $14.43. A part of the articles charged in the plaintiff’s account were delivered to one John Cochran, who was authorized by the defendant to take up goods at the plaintiff’s store to the amount of two or three dollars.

Assumpsit. The case came before the court, upon a statement of facts, from which it appeared that the writ was made returnable at the September term of the common pleas, A. D. 1842, was duly served by an attachment of the property of the defendant, and was entered and continued to the February term, 1843. Subsequent to the attachment, the defendant filed his petition to he declared a bankrupt, and received his discharge previous to the February term of the C. C. P., 1843.

<p>When the indorser of a note lives in one state, and the maker in another, the operation of the indorsement is so far similar to the drawing of a bill of exchange, that, in an action against the indorser, the dishonor of it may be proved by a protest.</p> <p>But previous to the adoption of the revised statutes, a protest was not evidence that notice of the dishonor was given to the indorser.</p>

Assumpsit. The declaration alleged that the plaintiffs were duly incorporated in the month of June, 1835, and that the defendant, on the 22d day of March, 1839, in consideration that the plaintiffs had admitted him to take one share in the capital stock of said corporation, promised the plaintiffs that he would take said share, and pay therefor one hundred dollars, ten per cent, thereof on the first of June then next, and the remainder at such times as should be prescribed…

Appeal, from a decree of the judge of probate, for this county, allowing the account of Lydia Wooster, executrix of the will of David Wooster. The amount was as follows: The Estate, .... Cr. The Estate, ....

<p>The defendant pledged two notes, signed by one Samuel Noyes, as collateral security for a debt due the plaintiff, which the plaintiff was to collect, and after deducting the amount of the defendant’s debt, was to pay him the balance. The plaintiff then agreed with Noyes, that the latter should give him a new note, signed by himself amd Benjamin Noyes, for the amount due on the old notes, with $15.00 in addition. The plaintiff computed the sum due on the old notes, but, by mistake, made it too small by $10.00, and for the sum thus computed, a now note was sent the plaintiff, who filed it with the old notes, which were never called for by SamuelNoves.—Held, that under the circumstances, the new note could not be considered as payment of the old ones, and that the plaintiff was not chargeable with their amount.</p> <p>The defendant pledged, as collateral security for a debt due the plaintiff, two notes, amounting to about seventy dollars, which the plaintiff Was to collect, and deduct therefrom the sum due him. The maker possessed ample property from which the notes might have been collected, and the plaintiff delayed enforcing payment of them for five months, at the end of which time, the maker became insolvent. It was not suspected that he was embarrassed, nor did the defendant request the plaintiff to collect the notes.—Held, that the plaintiff was not chargeable with their amount.</p>

Writ or Entry, for a tract of land in Lyman. The writ was a writ of attachment. The declaration alleged, that the demandants, in their capacity and right of administrators, were seized in fee within twenty years, and that the defendant disseized them. Plea in abatement, enrolling the writ, return and summons.

Assumpsit, upon a promissory note, dated January 16, A. D. 1836, for one hundred and five dollars, in one year from date now past, with interest; second count for money had and received.

Assumpsit, upon a promissory note, dated Dec. 28, 1841, for $80.00 in six months, with interest.

Assumpsit, for money had and received to the use of the plaintiff, as assignee of Bellows & Peck. The writ was dated March 14, 1843. The plaintiff, in his specification, claimed to recover the amount of a note signed by the defendant, February 2,1841, payable to Bellows & Peck, or order, for f 146.07, on deraand, with interest annually ; on which was indorsed, March 27, 1841, $25.00.

Debt, on a bond executed by the defendants, with the condition that if said Wilson, a prisoner at the suit of Abel G. Peck, the plaintiff, should, within one year from the date of his arrest, the 19th of December, 1838, apply to the proper authority, and be admitted to take, and actually take the oath prescribed by the laws of this state for the relief of poor debtors, or in default thereof surrender himself up to the creditor in the manner prescribed by the laws of this…