Volume 16 — New Hampshire Reports

Assumpsit on a note dated February 12,1889, and made payable to the plaintiffs, or order, for $17,000, on demand, with interest annually, and signed by Josiah Rogers, Josiah Rogers, Jr., Lewis Downing, surety, George Kent, surety, Theodore French, surety, John Brown, surety. Josiah Rogers and John Brown deceased before the commencement of this suit; Josiah Rogers, Jr., being without the State, no service was made upon him.

<p>A tender of money vests no property in the party to whom it is made, unless it is accepted.</p>

Trover, for the wood work of a single wagon and a single sleigh, alleged to have been converted by the defendant, June 28, 1848. The general issue was pleaded.

Assumpsit. The first count was for money had and received, and the second count for money had and received and interest. A specification was filed claiming under said counts the sum of $2000 — money deposited in said bank to pay a note lodged in the bank for collection by said town' — 'Signed by Lewis Downing, Theodore French, George Kent, Josiah Rogers, Josiah Rogers, Jr., and John Brown, and payable to the plaintiffs, and interest thereon from the time of the deposit.

Debt on a judgment recovered by the plaintiff against the defendant Heath before the Superior Court for this county, February term 1830, for $625.98 debt or damage, and $8.88 costs. The principal defendant Heath filed the following plea and brief statement: “Merrimack ss. Court of Common Pleas. Weáre Tappan, Plaintiff, vs. David Heath, Principal Defendant, and Benjamin Evans, Trustee. David Heath’s Plea.

Assumpsit upon a promissory note dated May 30 1836, signed by the defendant, and payable to Isaac Stiles or order in equal payments, in three successive years next after its date, and by Stiles indorsed to the plaintiff.

Petition for the abatement of taxes assessed upon the petitioner by the selectmen of Temple, on the first day of April 1843.

Assumpsit. The plaintiff gave in evidence a receipt, signed by the defendant, in these words : “ Wilton, June 8, 1857. Received of Cyrus Blanchard two hundred dollars, to be accounted for on demand, with interest. Eliphalet Putnam.” He also proved, that on the 22d day of March 1842, ho demanded of the defendant payment of the amount named in the receipt.

Foreign Attachment. The action was entered at the August term 1842, and was continued to the February term 1843; which term was held in April 1843, in consequence of an alteration in the terms of the courts made by the Revised Statutes. At the term last mentioned, the, plaintiff elected to take the disclosure of the trustee, which was completed at the April term 1844.

Assumpsit on an account annexed to tbe writ, and for work and labor. Tbe specification under both counts was of seiwices in repairing a highway in Goffstown, in a district in which the plaintiff' was highway surveyor, and also for surveying lumber.

Debt. The Court of Common Pleas for the county of Strafford, at their October term 1832, appointed a committee upon the petition of John Dow and others, to lay out a new highway, and widen and straighten the old highway, if they should see cause, from a point on the line between the towns of Dover and Madbury, through the towns of .Madbury, Durham, and Lee, to a certain point in Epping.

Assumpsit on a promissory note in the following words: “ Exeter, May 31, A. D. 1841. Eor value received, we jointly and severally all as principals promise the president, directors, and company, of the Exeter Bank, to pay them or order, twenty-five hundred dollars on demand with interest after four months,” and signed by the defendants. Each of the defendants pleaded that lie did not promise jointly and severally with the others.

Assumpsit. The town of Grafton furnished the defendant’s wife, who was found within its limits destitute and sick, with needful supplies, and informally gave notice to the town of Chester, where she had her settlement-; and that town paid the amount expended for such supplies, and brought the present action to recover the sums so paid. . It appeared that the defendant had, before the supplies were furnished, deserted his wife and gone to parts unknown.

Assumpsit. The writ was dated January 18, 1842. The first count is upon a promissory note for eight hundred dollars, dated April 28, 1841, signed by one George Raynes, payable to the defendant or order in six months and grace ; indorsed by the defendant, and subsequently by the plaintiff as second indorser.

Error, brought to reverse a judgment recovered in the court of common pleas by the defendant, in an action of trespass on the case to recover damage for inj ury done to the plaintiff’s sheep, which were chased, worried, and bitten, by the defendant’s dog.

<p>If referees to whom the mutual accounts.of parties have been committed by a rule of the court of common pleas, find for the plaintiff a balance less than 513.33, that does not furnish sufficient cause for the court to limit his costs, without other evidence that he had no reasonable expectation of recovering more.</p>

Indictment, alleging that the defendant, at Alton in said county, on the 29th day of July, A. D. 1843, without a license therefor from the selectmen of said Alton, did sell to one Thomas J. Craft six gallons of rum, contra formarn statuti, &c. The evidence tended to prove the allegations in the indictment, and the defendant produced the following license to justify the act: “ We, the subscribers, selectmen of the town of Alton, hereby license and authorize Walter G. C.…

Assumpsit. Under a count for money had and received, the plaintiff proved a promissory note made by the defendant on the 19th day of January 1833, for $100, payable to one Peter Parker or order in two years with interest annually, and by him indorsed to the plaintiff.

Indictment, in which it was alleged that the defendants “ on the thirtieth day of August 1842, at Haverhill, &c., did fraudulently receive the property of John Blaisdell and Royal S. Clarke, of Haverhill, &e., now or late partners in trade under the style and firm of Blaisdell & Clark, to wit., eighteen hundred yards of calico of the value of two hundred dollars, and various other articles, all being of the value of one thousand dollars; and did then and there fraudulently…

In this action the plaintiff in review moved the court for leave to amend the writ of review in a matter of form, which motion was granted. Upon that ground, and upon the further ground of the entire irresponsibility of the plaintiff to respond the costs of the action, the defendant moved the court to order the plaintiff to furnish security to respond the costs, under sec. 7, chap. 191, of the Revised Statutes.

Assumpsit. In 1840 the parties made an agreement that the defendant should deliver to the plaintiffs, at a certain point upon the river Ammonoosuck, a quantity of hemlock legs at $2 per thousand, sufficient to pay a small debt due at the time, and to pay for such goods as the defendant should afterward purchase at the plaintiffs’ store.

Trespass, for carrying away five tons of the plaintiff’s hay, at Cabot, Yt. It appeared that one Joseph Fisher recovered judgment on the first day of February 1840 against the plaintiff, before the defendant, who was then a justice of the peace for the county of Caledonia, Yt., and that the hay was attached by virtue of an execution issued on said judgment, and duly advertised and sold.

<p>Assumpsit on a promissory note made by the defendants. The defendant Elliott, in bar of the further maintenance of the action as to him, pleaded his discharge in bankruptcy ; to which plea there was a special demurrer and joinder. The defendant, Morse, pleaded the general issue, which was joined, but objected to proceeding to trial till judgment should be rendered upon the demurrer,, because that Elliott would, if his plea should be sustained, be a material witness for him. But the court directed the trial to proceed, to which direction the defendant excepted.</p> <p>On the trial it appeared that the note in suit was made in the State of Massachusetts, on Sunday, but was to have been paid in the State of Connecticut, and that by the laws of Connecticut a note made on Sunday is void.</p> <p>A verdict was thereupon directed for the plaintiff' for the amount of the note, to which the defendant excepted, and the questions of law arising upon the exceptions were transferred to the Superior Court for determination.</p>

In this case the plaintiff caused a writ to be made, and delivered the same 'to a deputy sheriff of this county for service, who thereon attached certain lands of the defendant, and lodged a copy of said writ with a copy of his return thereupon with the town-clerk of the town in which the lands lie, and the writ was afterward lost by the deputy, and was not found at the return day thereof nor at any time during the term.

Assumpsit. The first count alleged that the defendant, being owner of a certain promissory note made by one Fifield November 8, 1841, for $94.8-3, payable to one Foster or order on demand with interest, on which $4.50 had on the 28th of March 1842 been paid and indorsed, did on the 16th day of May 1842, in consideration of $93.26, sell and deliver the note to the plaintiff, and by a memorandum on the back of the note, promised the plaintiff to pay him the amount of the same…

Writ or Entry for certain land in Hanover. Plea, the general issue, with a brief statement that the defendant would offer evidence that the plaintiff and defendant on the 7th day of October 1837 made an exchange of farms; that the farm that the plaintiff conveyed to the defendant was worth $800, and that conveyed by the defendant to the plaintiff was worth $4,000; that the defendant was induced by the false and fraudulent representations of the plaintiff to give $2500 for…

Assumpsit on a note dated December 21, 1833, for $803.25, payable to the plaintiff' or order on demand with interest, and executed by the defendants who were partners at the time. They pleaded the general issue and the statute of limitations. The plaintiff' proved that on the 9th day of September 1835, Avery paid the sum of $100 which was indorsed upon the note.

In equity. Bill by Sally D. Prescott, a minor and the only child and heir of one Nathaniel C. Prescott, to reform a mistake in a deed. Many of the facts are stated in Prescott v. Hawkins, 12 N. H, 19.

Trespass for carrying away a quantity of hay, oats, and wheat, on the 25th day of November 1841. Plea the general issue, with a brief statement, alleging that on the 14th day of December 1841, upon a writ of attachment which the firm of which the defendant was a member sued out upon several promissory notes due them from one Streeter.

Assumpsit. The first count was upon a note dated Compton March 4,1834, for $23.12, payable by the defendant to the plaintiff or bearer in thirty days with use. The second count was upon a note dated as the first named, and for $4.12 payable by the defendant to Orlan Harwell or bearer in sixty days with interest. To both counts the defendant pleaded, 1. The. gen eral issue. 2.

Foreign Attachment. The principal defendant was defaulted, and the plaintiff elected to try the question of liability of the trustee by the jury, no disclosure having-been taken. On the trial of the issue the defendant offered the principal debtor as a witness, and the court ruled that he was incompetent to testify.

Indictment for stealing a pocket book and sundry bank bills from the store of Bichard P. Kent. Kent testified to the loss of the property, and to other circumstances tending to show that the respondent was m the store about the time of the loss, and that soon afterward he called the respondent and charged him with the larceny.

Assumpsit. The first count alleged that the defendant was duly elected a prudential committee for said district in 1839, and as such received of the selectmen of the town $39.26, being the proportion of school money assigned for the district, which he was bound to lay out and expend, &c., but that he had refused and neglected so to do, &c. The second count was for money had and received to the plaintiffs’ use. Plea the general issue.

By his will which was proved on the first day of September 1835, he devised and bequeathed to Elizabeth Metcalf for life, the use of all his property after the payment of certain specific legacies.

<p>Error to reverse a judgment of the court of common pleas upon an information, alleging that “ There was and ever since has been and still is a common highway in the town of Walpole in said county, used by all the good citizens of said State in and through the same to pass and repass with their horses, carriages, and teams, at their will and pleasure,” and that the same “ Was on the first day of January last past ever since has been and still .is rocky, rutty, broken, uneven, ruinous and in great decay, in want of due reparation thereof, so that the good citizens of said State for and during the time aforesaid could not and still can not pass and repass in and through the said parts of said highway so in decay as aforesaid, as they used, were wont and ought to do, without great danger of their lives and loss of their goods.”</p> <p>“ To this information the defendant pleaded the general issue, and at the trial of said issue at this term before the jury, the State’s counsel admitted as a fact and offered evidence to show, that the highway in question was a new highway, which had not been made and put in good repair by the town ; which evidence was objected to by the defendant as inadmissible to support the information, but was admitted by the court and given to the jury.”</p> <p>A verdict was rendered for the State and judgment entered ; to reverse which this writ of error was brought and the following error was assigned :</p> <p>“ That upon the trial of the issue in said case, the State’s counsel admitted as a fact and offered evidence to show, that the highway in question was a new highway, which had not been made and put in good repair by the town; which evidence was objected to by the defendant as inadmissible to support said information, but was admitted by the court and given to the jury.”</p>

Assumpsit for money had and received. The writ was dated on the 18th day of October 1842 and served on the same day by an attachment of the real estate of the defendant Thomas Seaver, and of the partnership goods and effects of the firm of Thomas Seaver & Son, which consisted of the two defendants.

Debt on a bond. Tbe declaration alleged that the defendant by his writing obligatory under seal covenanted and agreed to and with the plaintiff, that he would properly maintain, support, and comfortably clothe the plaintiff' and his wife during their matura! lives; and that the defendant had failed so to do, to the damage of the plaintiff the sum of ten hundred dollars.

Assumpsit upon an account annexed for iron castings $19.80. The evidence tended to show that the defendant contracted with the plaintiffs, who were iron founders, to cast for him a set of gearing for a horse power, the wheel to be like one which the plaintiffs then bad in operation at their foundery; that tbe castings were made and delivered to the defendant who carried them home, where his workmen informed him that the wheel could not be used because it had no hole for the…

Whit or Entry to recover a tract of land in Dunbar-ton ; tried upon the general issue. The plaintiff claimed title under a deed from the assignees of David Tenney,- a bankrupt, executed in 1842. The defendants claimed under a deed of warranty from said David Tenney to Warren Story, the defendants’ ancestor, dated March 11,1883.

Foreign Attachment. The Trustees, the New-Hampshire Mutual Fire Insurance Company, disclosed that on the 24th c[ay of November 1886, the defendant, with one Josiah Rogers since deceased, and one Daniel M. Head, applied jointly in writing for an insurance to be effected upon certain mills, and a policy was issued by the company in conformity with the application.

Assumpsit on a note made by Simon Brown as principal, and William Kent and Lewis Downing, the defendant, as sureties, for $800, payable to the New-Hampshire Savings Bank or order in four months, with interest after.

The testatrix was a married woman and executed the will during the lifetime of her husband, whom she survived. It appeared that about two years before the date of the publication of the will, the testatrix being then sick spoke in the presence of her husband about making her will, and that he was desirous that she should do so.

In this case the indictment alleged that before the commencement of the nuisance described, there was and still is, a common public highway in the town of Nashua, leading from the Indian Head Coffee House, southerly by the house of Benj.

Foreign Attachment. At the October term, 1843, judgment was rendered against the principal defendant, and execution issued against him. ' The counsel for the trustee thereupon moved that the trustee be discharged, the suit between the plaintiff and principal defendant being ended.

Trespass, for taking and carrying away sundry goods and chattels of the plaintiff, November 1, 184B. The declaration contained a single count.

In Equity. Petition for an injunction, alleging an attachment of an equity of redemption, in a suit against Stowell, and tbat the defendants are cutting off wood, thereby defeating the attachment.

Assumpsit to recover $200 ; founded upon an advertisement, purporting to be published by the defendant, and offering a reward of $200 for the arrest of a person who had escaped from his custody.

Assumpsit, upon a note made by the defendant to the plaintiffj for §204.18 and interest, dated 28th of February 1887, and payable on demand. The plea of general issue was filed accompanied with a brief statement, that the cause of action did not accrue within six years next before the 6th day of November 1843, the day of the date of the writ.

Writ oe Entry to recover a lot of land in Manchester. It appeared in evidence that prior to July 3, 1844, the defendant was the owner of the lot. On that day he executed a deed of it to the defendant, who at the same time signed and sealed an instrument purporting to be a mortgage of the same lot to the demandant, with the usual covenants of seizin and warranty.

Assumpsit on a memorandum in writing as follows: “Brookline, May 23,1836. Due to Abel Shattuck seventeen dollars and fifty cents, to be accounted for on settlement with interest.” Signed “B. Shattuck.” The writ was dated May 14,1842.

Writ of Entry founded upon a mortgage. In support of the action the plaintiff introduced a mortgage to Luther Marshall, executed by the defendant January 16, 1832, with a condition that if the defendant should pay to John Lund, treasurer of the Rising Sun Lodge, his heirs, &c., the sum of $190, in six months with interest, then the deed, and also a note bearing the same date, given by the defendant and Luther Marshall to the Rising Sun Lodge, for the payment of that sum at…

Writ oe Entry for a tract of land described as being in Hudson in this county. Plea, disclaimer of the lands described in the declaration which is south of the double lines on the accompanying plan, and mil disseizin as to the residue. The demandant introduced a deed of mortgage duly executed from the tenant to one James Steele, dated June 10, 1840, purporting to convey the land described in the writ.

Assumpsit on a promissory note dated October 28,1826, for $1000, made by the firm of Joel Carter & Co. of which the defendant was a member, and payable to the plaintiff on demand. The writ is dated January 14, 1841. Plea, the general issue with a brief statement of the statute of limitations.

Assumpsit. The declaration alleged that the defendants on the 10th day of June 1889, in consideration that the plaintiff had on that day assigned to them a lease of a certain tavern-stand in Goffstown made by one Eliphalet Richards, Jr., to the plaintiff, bearing date May 1, 1838, by an instrument in writing under their hands, promised the plaintiff to save him harmless in all respects from his covenants in said lease during the remainder of the term, and to pay all rents…

Writ or Entry. Plea the general issue. The demandant introduced a mortgage deed from one Oliver Nutting, dated on the 19th day of December 1836, conveying the demanded premises to the plaintiff, to secure the payment of a note for $1000. The tenant introduced a deed from said Oliver, dated on the 20th day of March 1829, conveying to him one undivided half of the demanded premises.

Writ or Entry to recover a tract of land in Milford. Plea the general issue. It appeared in evidence that prior to May 19, 1836, Putnam Tyler was seized of the premises, and on that day mortgaged the same to Jonathan Keyes and Solomon K. Livermore to secure a debt due to them.

<p>Case. The declaration alleged that David Danforth a deputy of the defendant, who was then sheriff of the county, on the first of September 1835 attached certain personal property upon a writ against tbe plaintiff; that the same was afterward sold by Mm by agreement of the parties, and the proceeds retained in his hands to await the disposition of the suit. That the suit -was afterward settled and dismissed, and that Danforth refused to pay the money to the plaintiff. -To prove a demand upon Danforth after the action was dismissed, the plaintiff introduced John Merrill as a witness, who testified that after the suit was settled the plaintiff made a demand of the money of the defendant, and that he was then employed by the plaintiff' as his agent to make a demand upon Danforth, and was sent by the plaintiff' to call upon B. M. Earley, Esq., on his way to make the demand ; that he called upon said Earley and was directed by Mm to make a demand upon Danforth, which he did.</p> <p>The character of this witness for truth and veracity was impeached by witnesses introduced by the defendant. Whereupon the plaintiff offered to corroborate the facts stated by Merrill, by proving by said Earley that Merrill called on him as he testified, and that he directed him to make a demand upon Danforth.</p> <p>The court ruled that this testimony was inadmissible— the fact which was thus stated by Merrill and to be proved by said Earley being immaterial.</p> <p>The jury having returned a verdict for the defendant, the plaintiff moves for a new trial.</p>

<p>Assumpsit, against one of a firm, indorsers of a promissory note discounted at the Commercial Bank in Bangor, and sold by said bank to a third party, who transferred it to the plaintiff.</p> <p>The notice of non payment was filled out from the blank commonly used by the bank, which was in the following form:</p> <p>“Mr.-, This is the last day of grace on a note dated 183 , signed by and indorsed by you for dollars cents, with interest, which is due and unpaid at this Bank; payment thereof is demanded of you.</p> <p>Cashier.”</p> <p>To this notice the defendant objected, that it was insufficient in not stating a demand on the maker, and the court sustained the objection. Thereupon a verdict was taken for the defendant, subject to the opinion of this court.</p>

Assumpsit on two promissory notes made payable by the defendant to one James Wallington or order, “ at the Suffolk Bank Boston ” on demand, &c., and by said payee indorsed to the plaintiff. The writ contained special counts on each note, with an averment of demand at the Bank, and refusal there to pay. The third count was general for money had and received.

Petition for a highway, filed January term 1843. The town of Raymond appeared and objected that the court had no jurisdiction, because the selectmen had never refused to lay out said highway.

Petition for partition. Theodore Furber being seized of the property described in the petition, on the 11th day of September 1792, married Mrs. Lydia Folsom who was then a widow, and who had by a former husband one child Dorothy Folsom. Theodore Furber had by. this marriage three children, Theodore, M’Lauren, and Lydia. The last named is the wife of Stephen Pickering the defendant.

Writ oe entry, to recover a tract of land iu Newmarket containing about seventy-five acres. Plea, ml disseizin. The parties both claim title under Thomas Cheswell. The title of the demandants was under the will of Thomas Cheswell, the father, who on the 2d day of August 1840 devised to them in fee the demanded premises, being one half of his land situated on the westerly side of a certain highway, and to his son Joshua Cheswell the remaining half.

Writ oe Entry to recover seizin and possession of a tract of land situated in Stratham. Plea the general issue; and a verdict was taken for the plaintiff subject to the opinion of the court. The plaintiff offered in evidence an execution in his favor against the defendant, and a levy under that execution upon the demanded premises February 14, 1842.

Assumpsit for money paid, laid out, and expended, &c. The plaintiff’s specification set out a note dated September 23, 1839, signed by I. 33. H. Odióme as principal, and by Joseph Hanson and the plaintiff and defendants as sureties, made payable to the Strafford Bank in sixty days, for $860, and interest; and that the plaintiff had paid on said note the sums indorsed thereon, the note being fully paid.

Replevin for nineteen bales and one box of blankets. Plea, the general issue with a brief statement. It appeared that the defendant was a deputy sheriff, and on the 19th of January 1811, attached the blankets as the property of the Mechanics Manufacturing Company, upon sundry writs against the company now pending in the Court of Common Pleas. The plaintiff is a commission merchant in Philadelphia.

Assumpsit, on an account annexed. The plaintiff offered the deposition of John Brown, who testified that he made all the purchases mentioned in the account, as the agent of the defendant; that the defendant called on the plaintiff with the witness previously to the sales, and verbally requested the plaintiff to let the witness have such goods as he might wish to purchase, on his, the defendant’s account, as he was going to put witness into a store to sell goods as his agent;…

Assumpsit founded on a note signed by tbe defendants, bearing date February 21,1840, for $50, and made payable to one Jeremiah M. Rollins or his order in two years from the date thereof with interest, and by said Rollins negotiated to one Emerson, and by Emerson indorsed to the plaintiffs.

Indictment, alleging that the respondent being a person of idle and dissolute habits of life, on the first day of July in the year of our Lord one thousand eight hundred and forty-one, and on divers other days and times between that day and the day of the finding this bill, at Dover in the county aforesaid, a certain common ill-governed and disorderly gaming-house, unlawfully did keep and maintain; and in the said house for his own lucre and gain, certain evil disposed…

Assumpsit, upon a promissory note dated March 24, 1886, for $45.27 payable to the plaintiff or order on demand with interest, in saddles and harnesses at cash price.

Dower. The plaintiff claims as the widow of one Horatio G. Prescott. The marriage was proved and also the death of the husband and demand of dower. The premises were a part of the estate of Dudley Prescott deceased, who devised all his real'estate to his sons John and Hazen iu severalty.

Trover for a yoke of oxen. The plaintiff claimed the oxen by virtue of a mortgage executed by John Marsh, Jr., on the 5th day of December 1840, and recorded in the town of Thornton where the mortgager then resided.

Writ or Entry to recover seizin of a messuage in Gilmanton. The defendant Charles Gould disclaimed, and the plaintiffs replied tendering an issue upon the disclaimer, which was joined.

Indictment, alleging that the defendant at Effingham in said county, on, &c., made and erected and caused to be made and erected a certain mound or dam across the ditch on the northerly side of the traveled part of the public road leading from Lord’s store so called in said Effingham to Parsonsfield in the State of Maine, where the road crosses the line between Effingham and Parsons-field; “which dam or mound is erected and is situated partly in said Effingham and partly in…

Writ or Entry. The laud in controversy was formerly tho property of one T. G. Emery, and is claimed by the demandant by virtue of an attachment made at his suit on the 17th day of July 1839, and a subsequent levy under a judgment obtained thereon. By the return of the officer it appears that he attached the land on the day specified, and left at the office of the town clerk a true and attested copy of the writ, with a true and attested copy of his return indorsed thereon.

Trespass, for taking and carrying away certain articles of personal property on the 7th day of April 1843, by John Farr, a deputy of the defendant, who is sheriff’ of the county of Grafton. The defendant pleaded the general issue, with a brief statement that on the 7th day of April 1843, he had in his hands for service certain writs against one Alexander Albee, and by virtue thereof attached the property in question as his property.

Writ of Entry to recover lot 8, range 9, in Franconia. The writ was dated January 30, 1843. Plea, the general issue. Submitted to the determination of the court upon a case stated. The plaintiff is an heir of Jonas Minot, and claims under a proprietary sale to him and allotment, both of which are for the purposes of the present question admitted to be regular.

Assumpsit. The action was referred to an auditor, who reported, that a hearing was held before him in due course. The declaration contained two counts for $50, lent and accommodated to and had and received by tho defendant. The plea was the general issue with notice of an account in set-off amounting to $53. The plaintiff appeared by his counsel, but not in person.

'Writ or Entry founded on a mortgage dated April 10, 1841, from the defendant to D. Clement & Co., assigned to the plaintiff. Plea, the general issue. The plaintiff produced the mortgage and the note mentioned in the condition, duly assigned and indorsed to him. The mortgage described the premises as “ the same the mortgager bought of Isaac Morse,” with a reference to his deed for a description, and contained the usual covenants of seizin and warranty.

Writ or Entry. There were five counts in the writ. No evidence was offered under the third count. . The demandant introduced a copy of a judgment in favor of Ezekiel Webster against the^tenant at the November term 1826, of the Superior Court in this county, recovered in a writ of entry for the land described in the first count.

Writ or Entry, in which the demandant claims to recover a farm in Piermont. The general issue was pleaded, and a verdict was ordered for the demandant subject to the opinion of the court upon the following ease.

Assumpsit against the defendant upon his liability as indorser of a promissory note. The substance of the declaration is given in the opinion of the court. The defendant pleaded the general issue.

Assumpsit upon the defendant’s note dated June 26, 1841, payable to the plaintiff*. Sweatt was defaulted. Parkhurst pleaded the general issue, and set up in defence, his incapacity to make a binding contract at the date of the note, by reason of imbecility of mind.

Case against the defendant as sheriff of the county of Coos, for the escape of William Bigney from the jail in Lancaster, committed on execution. The parties agreed upon the following statement of facts: The plaintiff at the Court of Common Pleas holden at Plymouth, Grafton county, on the first Tuesday of November 1840, recovered judgment against one William Bigney for $50.37 debt, and $14.08 costs.

Assumpsit on a note for §381, and interest. In the course of the trial of this cause the plaintiff offered the deposition of James Smith, containing these words: “ A few days before the commencement of this suit the old gentleman (meaning the plaintiff) came to me and wanted me to go and see Daniel (the defendant), [said that Daniel had bargained away the farm, and he had no security for the note he held against him, and he wanted me to go to Daniel and see if Daniel would…

Assumpsit. The case was originally referred to an auditor, who made a report in favor of the original plaintiff, and a verdict was rendered in his favor upon trial, in which the report was used as evidence. Judgment was rendered upon the verdict, and was satisfied. The original defendant brought his writ of review, and submitted a motion that a new auditor be appointed, and the cause sent to him.

Trespass. The plaintiff alleging that the defendants at Lyman in said county on August 25th, 1842, assaulted the plaintiff, and without lawful authority arrested him, and carried him forty miles to a jail, and there imprisoned him for the space of ten days, &c., &c. The defendants pleaded the general issue severally, and each accompanied his plea with a brief statement of facts in justification of any acts alleged in the declaration and found on trial.

Petition for increased damages occasioned by the laying out of a highway over the land of the petitioner in Campton, by the selectmen of that town. The petitioner was the owner of a farm in Campton, known as the Eastern half of lot No. 40, which is bounded on the east by a certain other farm in Campton commonly called the “Basin,” owned and occupied, by Charles Rogers and Phebe his wife.

Assumpsit. By the report of the auditor it appeared that the defendant, as collector for the town of Grafton in 1841, received money by virtue of his office, for which in June 1842 he went into a settlement with James M. Faltón, who was treasurer for that year. Upon that occasion Fulton gave him a receipt for the full amount for which the defendant was chargeable, and afterward gave up his bond.

Foreign Attachment. The trustee disclosed as follows : “ Sometime in September 1842, I think, I bought out Mr. Croker’s interest in the team property owned by George Dodge and John T. Croker. At that time there were two notes against said Dodge and Croker in favor of Seth Richardson. Each of them were for $100. I gave Croker a bond to pay his part of said notes, which was one half of each. Before this suit was commenced we had paid one of the notes.

<p>One who has receipted for property is not a competent witness for the defendant in the action on which it has been attached, whether he retains the property in his own hands or has suffered it to pass into the possession of the defendant.</p>

On the 23d day of November 1839, Moses Dow made his last will and testament by 'which he devised as follows: “I give, &c., unto my beloved wife, Sarah, all my estate of whatever name or nature and wherever situated, and whether real, personal or mixed, to have and to hold to her, her heirs and assigns ; to be held by her in trust to be disposed of at her discretion, in her own support and in the maintenance, support and education of all my children, and in such time and…

Petition by a subsequent mortgagee to redeem a mort-. gage executed by one Pay, witb a condition to indemnify the defendant for signing a note as surety for Pay, wbicb note was signed by one Brooks as co-surety. The defendant contended that the mortgage was foreclosed by entry and peaceable possession for the term of one year; and further, that Brooks his co-surety was entitled to.the benefit of the mortgage.

Writ oe Entry, dated October 27, 1840, for a tract of land in Lancaster. Plea, the general issue. Upon the trial in the court of common pleas, the court ruled that the facts which the defendants offered to prove, and which, are stated in the opinion of the eourt, would constitute no defence to the plaintiff’s action sustained by evidence to show title in him, and thereupon directed a verdict to be taken for the plaintiff.

Covenant, founded upon an alleged breach of the covenant against incumbrances, in a deed of the defendant to the plaintiff, of lot No. 86 in tbe second division in Northumberland, beai’ing date December 8, 1835. The breach assigned was the ownership of one James 'Gilchrist, at the date of the deed, of all the pine timber on said lot and his right to cut and carry away the same. ' Issue was joined upon this alleged ownership of Gilchrist.

Indictment for assaulting and beating one Oliver M. Brooks, contrary to the form of the statute in such case made and provided, &c. The defendants moved to quash the indictment because it purported to be founded upon the statute; which did not authorize an original prosecution for an assault and battery, except through the previous intervention of a justice of the peace; and because the court of common pleas had no jurisdiction of the offence, except upon the previous…

Trespass for taking the plaintiff’s cow. The defendant justified under a mortgage of the cow made by the plaintiff’to the defendant, for the consideration of $7.50, with condition to pay the defendant $10 by the first day of June then next ensuing. The defendant also offered evidence to show that the plaintiff had at sundry times said to the defendant and others that he should have the cow or the money according to the mortgage.

Writ or Entry to recover a. tract of land in Bartlett in this county.

Forei&n Attachment. The trustee was the son of the principal defendant, and had received of the proceeds of the estate of a brother of the defendant who had died in Connecticut, sundry sums amounting in all with interest to $1,219.60. He dischai’ged himself by sundry sums of money which he had paid out for his father and at his request, of which part was the debts of the defendant alone, and the remainder the debt of one Abner Hyde, which the defendant was liable to pay.

Error. Francis Willson tbe defendant in error recovered judgment against William Dennison at the^ May term of tbe court of common pleas in tbe county of Coos in 1842; and Noyes S. Dennison tbe plaintiff in error was bail, and Ira Young tbe attorney of record for William Dennison. On tbe first day of January 1843, a writ of scire facias was sued out against tbe bail, who then resided in tbe State of Vermont, and was committed to Cross, a deputy sheriff, for service.

Assumpsit for the use of the plaintiffs’ bridge from January 1, 1885, to May 8, 1841, $200. Plea, the general issue and a set-off. The charter was produced incorporating the proprietors of the Androscoggin Bridge with the usual grant of powers, the 4th section of which provides, that “ at all times when the toll-gatherer shall be absent from his duty, the gate shall be left open.” Approved June 1816.

<p>An indictment alleging an intent to break open the jail to set free S. O. imprisoned there, so that he might eseapo, contains a sufficient allegation of an intent to aid in his escape.</p> <p>Breaking and entering a dwelling-house in the night, with an intent to aid in the escape of a prisoner committed for a crime punishable with confinement to hard labor for a term of years, is a crime described in Boy. Stat., chap. 215, sec. 6.</p>

Assumpsit. The first count was upon a note alleged to have been given on the 23d day of March 1843, by the defendants, and subscribed by one George Rich prudential school committee, their agent for that purpose duly authorized, for the sum of $38.42, payable to the plaintiff on demand and interest. The second count was for the work and labor of the plaintiff in keeping the school of the defendants. The third was for money had and received.

Error, to reverse a judgment rendered in the common pleas. The original action was assumpsit, instituted October 8, 1842, by Jobn S. Jenness, John Gage* and John E. Lyon, against Philip Peek and William Bellows, the plaintiffs in error, who were partners in trade. It appeared from the record, that the writ was served October 10,1842, by an attachment of the partnership property, and of the separate property of each partner.

Scire eacias against bail. The defendant demurred to the declaration, and assigned for cause that it did not appear that the notice mentioned in the declaration was served upon the bail fifteen days before the return day of the execution ; the notice having been served on the 18th day of March, 1844, and the return day of the execution being the second day of April following. The plaintiff joined in demurrer.

Trover for 197 pairs brogans. The action was tried upon the general issue, and a verdict was returned against all tho defendants.

Case. The declaration alleged that an action was pending, in which Fairbanks and one Luther Eixford were plaintiffs, and Curtis, the present plaintiff, was defendant, and came on for hearing before an auditor appointed by the court.

Clark deceased. On the 15th of January 1842 Clark borrowed of C. Flanders $400, and gave a note on ninety days, signed by himself and Lamberton as surety. Clark died April 5, 1842, and later in the same day Lamberton paid the note-to Flanders and took it up. After its maturity he assigned all bis claim against dark’s estate to William H. Farwell, for whose benefit this claim is prosecuted.

Case, to recover fees for neglecting to take depositions under the seventh section of the act of December, 1828.

<p>In an action of debt on a judgment of the court of eommon pleas for the county of M. rendered at the March term, the plaintiff can not amend so as 'to declare on a judgment of the court of common pleas for the county of S. rendered at the April term; the causes of action being essentially different.</p> <p>The-report of road commissioners for two counties acting as a joint board, is ineffectual to give an action to a land-owner for damages awarded, until such report is accepted by the court for the county in which the land lies.</p> <p>Such acceptance is a judicial act, which can be done only in term.</p>

Assumpsit upon a promissory note for $129.42, made on the 24th day of March 1828, by the defendant, and payable to Breck & Colby or bearer, on demand with interest annually, and by them indorsed in blank. There was also a money count.

Assumpsit. On the 17th of April, 1887, Edward Brackett as principal, with J. Wheeler, S. G-. Sylvester, I. C. Whittemore, J. Colcord, and B. Gill the defendant, as sureties, made a joint and several note to the plaintiff, for the sum of seven hundred dollars, on demand with interest after four months, upon which this action is brought.

Assumpsit for money had and received. Joseph Dow a witness for the plaintiff, testified that his brother William Dow held a note against the defendant for an amount between $50 and $100, and. in September 1889, in company with the witness, called on the defendant for the money. The defendant said that he had been summoned as the trustee of William-in an action commenced by the plaintiff, and could not pay over the money until that suit was settled.

■Writ or Entry, to recover possessiou of a certain piece of land and the buildings thereon situated in Concord on Spring street.

In Equity. On the 28d day of January 1882, the plaintiff Eobert JBuntin and his son Eobert Buntin, Jr., were seized in fee-simple as tenants in common in equal shares, of the farm described in the bill, and in pursuance of an arrangement between the parties, Eobert Buntin, Jr., conveyed his undivided half to his father, who thereupon conveyed the whole in fee-simple to his son-in-law Joseph French, one of the defendants.

Assumpsit for money had and received. The plaintiff and one Page who was a selectman of Bradford, had a conversation concerning the valuation that had been made of their property by the selectmen, which resulted in an agreement to exchange their respective estates at the valuation so made, and to go forthwith to a place which they agreed upon, and execute mutual bonds with penalties to secure the performance of their agreement.