Volume 17 — New Hampshire Reports

Assumpsit. The defendants named in the writ were two copartners, under the name of Gillis & Brown, and the declaration was upon a partnership note, dated November 8, 1836, payable to their own order, and indorsed. There was a count for money had and received.

Ejectment, to recover a certain lot of land in Manchester. Plea, the general issue. On the 24th of October, 1838, the Amoskeag Company, being the owner of the lot, conveyed it in fee to Ziba Gay.

Assumpsit, upon a written contract, made by the defendant, October 28, 1841, to save tbe plaintiff harmless from certain notes therein described, on wbicb be was surety, and one Stowell was tbe principal, and which tbe plaintiff had been compelled to pay. Plea, tbe general issue. The contract did not state a consideration for its execution, and was not under seal.

Assumpsit against the defendant, as indorser of a promissory note, dated April 25, 1842, made payable by one Charles H. Brown to the defendant, or order, for $132.90, on demand, with interest annually. The evidence tended to ‘ show that the defendant sold and transferred the note in question to one Samuel F. Ellenwood, by an indorsement on the back of the note, thus : “ June 27,1843.

Case, for damages sustained by the plaintiff, on the 10th of March, 1844, by reason of an obstruction in the highway in said town, occasioned by snow-drifts, by which the plaintiff was delayed for a long time, his horses injured, his harnesses broken, and he put to great expense and trouble in proceeding on his journey, &c. It was admitted that the road was a public highway, which the defendants were bound to keep in repair.

Assumpsit. The first count was for money had and received. The second count alleged that on the 29th day of May, 1844, the defendant, by his note or memorandum, in writing of that date, of the following tenor and effect, to wit: “ Merrimack, May 29, 1844. This day received of Luther K. Hassell one sorrel mare, for which I promise to pay him, or his order, seventy-five-dollars, on demand, with interest.

Assumpsit, for money had and received. The plaintiff in 1838 applied to the defendant for the loan of §150, which the defendant declined at that time to lend him, hut desired him to call again.

Petition, setting forth that the petitioners have located their railroad through certain lands of Joseph Greely, and of other persons named, situated as described in the petition; that they have not been able to agree with those parties, or any of them, for the purchase of such land, or as to the sum or sums to be paid for taking the same for the road; that they have filed with the clerk of the court of common pleas for the county in which the lands lie, security for the…

Assumpsit. The first count was for money had and received. The second set out a special contract by which the defendant, on the 18th day of October, 1837, in consideration that the plaintiff had, at his request, consigned to him certain goods and merchandize, to be sold for a reasonable reward to be paid him, promised the plaintiff to sell the same on account of the plaintiff, and to render an account of such sale, and to pay over the proceeds, on request: That the defendant…

Assumpsit on a note, dated on the eighth day of August, 1843, for §50, purporting to be made by the defendants to the plaintiff. There was no service upon LeviII. Newton, and Elbridge Gr. Newton pleaded the general issue, denying that he ever signed the note.

Covenant. The declaration set forth that the defendant, on the 14th day of March, 1840, conveyed to the plaintiff three fourths of a certain tract of land, in Bedford, and covenanted that he was seized in fee and had good right to sell and convey, with a general breach of those covenants. The plea was, that the defendant was seized in fee, and had good right to convey, and issue was joined.

Indictment, alleging that the defendant, not being a licensed taverner or retailor, sold two glasses of spirituous liquors to one George Stevens, on the first day of January, 1845.

Writ oe Entry, wherein the plaintiffs, John P. Whidden, and Rebecca, his wife, demand possession of a certain tract of land in Chester, alleging that they were seized thereof in their demesne as of freehold, within twenty years last past, and that the defendant has unjustly entered upon the premises and disseized the plaintiffs.

Assumpsit, upon an account annexed to the writ. The defendant pleaded, 1. The general issue, with a set-off. 2. A discharge in bankruptcy, dated February 7, 1844. To which the plaintiff replied fraud, with a specification of the fraudulent acts charged and relied on; and upon this issue was joined. To substantiate his claim, the plaintiff, on a trial before the jury, offered a report of an auditor, finding a balance due to him.

Writ or Entry, to recover land in Epping. Plea, the general issue. Both parties claimed under J ohn Straw, who died about the year 1882. The plaintiff proved title in Straw, and that he lived on the premises till his death, and produced a quitclaim deed from Straw’s heirs to himself, dated March 10, 1838.

Writ or Entry upon a mortgage. The defendant, by an agreement of the parties, suffered default, and upon a hearing in chancery the following facts appeared from the report of an auditor, to whom the accounts were sub- ' mitted: James Raitt, the defendant, by his deed, dated the 80th day of June, 1841, conveyed the demanded premises to Samuel P. Allen & Co. in mortgage, to secure the payment of a promissory note for one thousand dollars, dated the same day, signed by Raitt,…

Assumpsit. In the first count in the declaration the plaintiff declared against the defendant as guarantor of a promissory note, dated May 30, 1843, for $400, signed by George W. Rice, and payable to the plaintiff, or his order, in thirty days, and grace. The second count was for money had and received. The third count was against the defendant as promissor upon said note. Plea, the general issue.

Assumpsit. A verdict had been rendered for the plaintiff in the court of common pleas, and the case had been transferred to this court upon a motion to set the verdict aside, founded upon exceptions taken at the trial.

Assumpsit. It appeared from the report of the auditor that the plaintiff proved, in support of his account, that he worked upon a store belonging to Albert Brown, in Hampton, in 1848; that he finished the inside of a room in the same, sixteen by eighteen feet, removed two windows in the side of the same, built a flight of stairs, and hauled a load of sand and three casks of lime to the house.

Assumpsit, upon a promissory note signed by Porter for .$500, dated December 26, 1837, and made payable to one Charles B. Johnson, or order, on the 1st of September, 1839, with interest.

Debt on a judgment recovered before the court of common pleas, August term, 1844, for $4,650, debt or damages, and $10 cost. Also to recover $6,000, for divers goods, wares and merchandize, &c.; and also for $6,000, money paid, laid out and expended; also for $6000, money had and received; also for $6,00.0, for certain cargoes of merchandize, goods, wares and chattels, shipped by the plaintiff to the defendants.

Assumpsit. The first count alleged that on the 25th day of January, 1842, certain persons associated together for the purpose of building a meeting-house at Epping, and agreed together that each subscriber should take the 'number of shares set against his name, at the rate of $25 a share, and pay for the same, to such persons as should be appointed by the subscribers as a building committee, to be appropriated by them for that object during the present year; that the…

Writ of Entry, in which the plaintiff' claimed to recover two tracts of land in Portsmouth; commenced-June 18, 1838, and tried on the general issue at the September term, 1839, when a verdict was returned in favor of the tenants, on which judgment was rendered at the same term.

Foreign .Attachment. It appeared that the defendant had been a trader in Greenland, and on the 14th day of August, 1842, delivered to the town-clerk of that town a paper, purporting to be a mortgage of the goods in his store to Edward Griffith, his father, to secure certain demands and indemnities described in tbe instrument.

Indictment, for the murder of Phebe Hanson, at Rochester, on the 19th of September, 1843, The defendant was tried at the August term, 1844, and the jury failed to agree. The second trial was commenced on Monday of the second week of January term, 1845.

The bill as amended set forth, that there is, partly in this State and partly in the State of Maine, an arm of the sea, or Piscataqua river, dividing said States by its centre below Bloody Point, in Dover, to the ocean ; that the town of Portsmouth is situated below said town of Dover, on the westerly side of said river, near its outlet to the sea; that the town of Dover is situated above said Bloody Point, on the Ooeheco, a branch of said Piscataqua ; that, under the laws…

Complaint, originally filed before a justice of tbe peace, by Hart, as clerk of the 8th company of infantry in the 83d regiment, being tbe north company in Milton, to recover a fine of two dollars for neglect to appear and do military duty on tbe 16th day of May, 1848. The records of the company and proceedings of the officers, &c., were admitted to be correct, except as hereinafter excepted to.

<p>Trespass, for taking and carrying away a carpet, on the 29th day of August, 1843. The writ was dated August 30, 1843. The plaintiff introduced evidence that the defendant, on the 2,9th day of August, having a writ against Ephraim Thayer, came into the shop kept by Thayer, and told him he had instructions to attach the carpet. Thayer informed the defendant that the carpet belonged to the plaintiff. The defendant then left, but shortly after returned and said he would attach it.</p> <p>The carpet was in an inner room, and a witness testified that the defendant did not go into that room, and he did not know that the defendant saw the carpet that day. The plaintiff also offered the return of the defendant, as sheriff, on the writ against Thayer, as follows; namely: “ Strafford ss. Aug. 29,1843. I have attached one .carpet, the property of the within named Thayer, valued at ten dollars, and on the eighth day of September, 1843,1 gave the within named Thayer a summons,.’ &c’</p> <p>It appeared farther, that the plaintiff, on the same 29th of August, gave a receipt for the carpet to the defendant, promising to deliver it to the defendant on demand, or pay him ten dollars, the same having this day been attached by said Hurd on a writ, Frances H. Hardy and al. v. Ephraim Thayer.”</p> <p>There was evidence to show that the carpet was the property of the plaintiff, and that Thayer carried on the shop, where it was at the time, as agent for him. The carpet remained at the same place until the 18th day of December following, when the defendant sold it on the execution -which had issued against Thayer.</p> <p>The defendant objected:</p> <p>1. To the competency of this evidence to prove a taking.</p> <p>2. That if competent for that purpose, it was equally competent to prove the property of the carpet in Thayer.</p> <p>3. That the plaintiff was estopped by his own receipt from setting up a claim of title to the property.</p> <p>4. If not so estopped, in the absence of all evidence of the plaintiff’s making any claim of property before the commencement of this suit, his receipt should operate as a license, or acquiesence on his part, so far as to debar him from maintaining this action.</p> <p>The court overruled the objections; and the jury having returned a verdict for the plaintiff, the defendant moved for a new trial.</p>

Libel for Divorce. The parties were married in the county of Lincoln, in the State of Maine, in 1825, and, having resided there a few years, removed to Acton, in the county of York, in the same State, where they resided till within about eight years before the filing of the libel, when the libellant left the house of her husband, and removed to Somersworth, in this State, where she has since resided and still resides.

Indictment, alleging that the respondent, on the 10th of November, A. D. 1844, at Dover, with force, &c., made an assault on Alexander II. Prime, with a certain open dangerous knife, which he, the said Michael Calligan, otherwise called Michael Calligan, then and there had and hold, and did strike, shove and stab the said Alexander II.

<p>Foreign Attachment. The disclosure was taken and sworn to at the August term, 1846, and at the January term following the following order was entered :</p> <p>“ John A. Wingate v. Nathaniel Nutter and George Nutter, and William C. Osgood, their trustee.</p> <p>“ It appearing from the disclosure of the trustee that at the time of the service of the writ, and afterwards, he was indebted to said Nathaniel Nutter by three negotiable promissory notes, each made in this State, and each dated on or about the third day of January, 1843; one for $350, payable in two years from said date, with interest; one other for $390.41, payable in four years from said date, with interest, and the other for $375, payable in three years from said date, with interest, upon which last mentioned note $300 had been paid before the service of the writ.”</p> <p>“ On motion of Daniel M. Christie, attorney for the plaintiff, it is ordered, that notice be given for the information of any person or persons who may claim an interest in said notes, or any of them, so that said person or persons may appear at the next term of the court of common pleas, to be holden at Dover, in said county, on the first Tuesday of August next, and show that the said notes, or any of them, if transferred, were transferred to them or him in good faith, and for an adequate consideration, before the service of said trustee process ; by causing a copy of this order to be published three weeks,” &c.</p> <p>At the August term, 1847, the foregoing order having' been complied with, and no one else appearing to claim any interest in any of the notes mentioned in the disclosure of William C. Osgood, Osgood himself submitted a motion that he “ be permitted to come in and assert and defend the claim and title of the several individuals named in his disclosure, to the several notes therein named, as having had those notes indorsed to them, he having paid those notes, and thereby became the legal holder of the same.”</p> <p>To the allowance of this motion the plaintiff objected, but the same was allowed, and exception to the ruling was taken by the plaintiff, and the cause was transferred to this court.</p>

Foreign Attachment. The plaintiff elected to try the question of the liability of the trustee by the jury, after which the parties agreed upon the following statement of facts: Hopkinson, and Sibley,… Held: under the circumstances, and an investigation made into the affairs of the partnership, was submitted to the determination of this court.

Assumpsit on account annexed, for services of the plaintiff’ as road commissioner for the county of Belknap, on tlio petition of the defendant and others, for a highway in the town of Barnstead, on which the commissioners reported in favor of the town.

Indictment, for selling spirituous liquors without a license, upon which the respondent was found guilty, and sentenced to pay a fine of fifty dollars and the costs of the prosecution. The attorney-general moved that the respondent do not stand committed until the sentence shall be performed, but that execution issue against his goods and estate for the amount of the fine and costs.

Debt. The action was submitted by the parties, who agreed that if the evidence was sufficient to prove that John L. Leach, the principal upon the bond in suit, did surrender himself up to the keeper of the jail at Amherst, and did remain at said jail from twelve o’clock at noon until three o’clock in the afternoon, in such a manner that the sureties on his bond were thereby discharged under the provisions of the Devised Statutes, chapter 199, judgment should be rendered for…

Assumpsit. The declaration alleged that the defendants, upon consideration that the plaintiff would make out and deliver to them a quitclaim deed of certain lands and privileges, promised and agreed with the plaintiff to remove and pay off all incumbrances on said premises on demand. Upon the trial, it was agreed that there was no other incumbrance on the premises than attachments made by the creditors of Lyford, and that the parties so understood.

Indictment, in which it was alleged that Luther Berritt, Sylvester Cross, True Spiller, Simeon Gordon and Chase Clifford, all of Bridgewater, in the county of Grafton, in this State, together with divers other evil disposed persons, to the number of ten, whose names are to the jurors unknown, on the fifth day of February, in the year of our Lord one thousand eight hundred and forty-five, at New-Hampton, in the county of Belknap, with force and,,arms, did unlawfully,…

Assumpsit, upon an account annexed. Among the items of the account were two for the use of a cow from June 30 to August 1, 1843, and from August 1 to September 11, $6. Plea, the general issue, with notices of a note for 012.62 in set-off. It appeared that the note filed ,in set-off was dated February 17, 1848, and made payable to the defendant on tbe first of August following, and was secured by a mortgage of the cow mentioned in the plaintiff’s account.

In Error. The original action was debt on judgment, commenced August term, 1837, in favor of Ledden v. Colby. October term, 1843, the original defendant pleaded in bar to the further maintenance of the action, his discharge in bankruptcy and certificate thereof; The plaintiff replied an attachment of property on the writ, before the defendant filed his petition, &c. Demurrer and rejoinder.

Assumpsit brought by the indorsee of a promissory note given by the defendant to one Joseph Mudgett, or order, dated June 18, 1843, for §87.50, payable in one year and interest.

Assumpsit, to recover for supplies furnished to James Wingate, a pauper, alleged to have his settlement in Freedom. Said Wingate began to reside in Freedom the last of December, 1827, or the first of January, 1828, and continued there to reside until the 28th day of May, 1834, when he removed and did not return. In the years 1828,1834, and in each of the interaaediate years, he was taxed in that town for his poll, having no property, and paid the taxes so assessed.

Trespass, for breaking and entering the plaintiff’s close. Plea, the general issue. The action was commenced before a justice of the peace, and in the court of common pleas the parties submitted the following statement of facts : One Samuel Peabody formerly owned and lived on the farm of which the locus in quo is parcel, and built a house upon it, and on the 31st day of March, 1841, conveyed the whole to the plaintiff in fee.

<p>Trover, for a quantity of pine boards.</p> <p>It appeared that Timothy Morse, of Ne”wbury, Vermont, on June 26, 1843, was the owner of the boards, a part of which at that time were in Whitman’s mill yard, and the residue at Dutton’s landing, in Haverhill. On that day T. Morse made his mortgage of said boards, together with various other articles of personal property, situate in New-Hampshire, to the plaintiff, conditioned to save the plaintiff harmless from sundry liabilities incurred by him on account of T. Morse, and also to save one Eobert Morse harmless from bis liability upon a note to Joseph Bell, which was signed by said Timothy and Eobert Morse, and which was the proper debt of T. Morse. The mortgage was made in. New-Hampshire, and the mortgagee was a citizen of New-Hampshire. On the same day, in Yermont, said T. Morse made a deed of assignment of all his property in Yermont to citizens of that State, giving preferences among his creditors there. On the 27th of June, 1843, one Horace Morse, as the agent of T. Morse, for the purpose of giving the plaintiff' possession of the boards, went with the plaintiff to Whitman’s mill and yard, and then pointed out to him the boards and other lumber there, and told him that he put him in possession of the lumber and boards there at the mill and yards. At the same time the plaintiff told Whitman, who owned the mill, that he would pay him for the use of the mill from June 27, 1843, and he did so. Hutton’s landing was about three fourths of a mile from the mill, and was a public landing place, where all persons who desired were accustomed to lay lumber, paying to the owner for the use made of it. On June 27, 1843, said Horace Morse, after having been at the mill, went with the plaintiff also to Dutton’s landing, for the purpose of giving him possession of the boards that were at that place, and there pointed out to him the boards, and told him that he put him in possession of them under the mortgage. The plaintiff then went to the house of Dutton, who resided near the landing, and requested him to take charge of the boards there for him, who, it was agreed for the purposes of this trial, refused to take charge of them. The plaintiff' told Dutton that he would pay him for the use of the landing from that time till the boards should be taken away. It was then evening, and the plaintiff returned to his dwelling-house, a distance of about two miles from the landing. T. Morse took no charge of the boards after the delivery of them to the plaintiff, above stated. It appeared that T. Morse, at the date of the mortgage to the plaintiff, was deeply insolvent. On the morning of June 28, 1843, Nancy Swasey, one of the defendants, having a just debt against said T. Morse, caused the property in question to be attached. Powers, the other defendant, as deputy-sheriff' made the attachment. Judgment wTas rendered September term, 1843, and the property sold upon the execution in due form by Powers, October 11, 1843.</p> <p>The court ruled that the foregoing facts constituted a sufficient delivery to, and retaining of the possession of the boards by the mortgagee, to render the mortgage valid and operative, without a record of it, within the intent of the provisions of the act regulating the transfer of personal property by mortgage, requiring such possession by the mortgagee.</p> <p>It was contended at the trial, on the part of the defendants, that if the general assignment of the property in Vermont, and the mortgage of the property in NewXlampshire, under which the plaintiff claims, were each made as a part of a plan to prefer certain creditors, they are to be regarded as parts of the same instrument, and that, in legal consideration, they would constitute a general assignment, and that the mortgage as a part of the assignment would be void, as operating to give a preference to the mortgagees. The court ruled that the instruments being made between different parties, and to operate in different governments, and the subject matter of each being different, could not in law be regarded as one instrument, and that the mere fact that the assignment in Vermont and mortgage in New-Hampshire might operate to convey all the debtor’s property, and might be designed to have, and might in fact have, the effect to prefer certain creditors of T. Morse, would not render the mortgage void. The court further ruled, that a mortgage in NewIlampshiro is not void, even though it may be designed to convey, and even may purport to be a conveyance of all the property of a debtor to one or more of his creditors, thereby preferring them.</p> <p>The note to Joseph Bell, described in the mortgage, was permitted by the court to be given in evidence to the jury, as tending to rebut any inference of fraud from inadequacy of consideration which might be drawn from its non-production, notwithstanding the parties to the mortgage had made oath that it was made to secure the plaintiff against his liabilities, in the manner appearing upon the mortgage; for which reason the defendants objected to its admissibility in evidence.</p> <p>In order to show that the debt to Bell was amply secured prior to the date of the mortgage, and to make an inference of fraud from that fact as touching the mortgage, the defendants gave in evidence the books of record of the proprietors of the Haverhill Bridge Corporation, by which it appeared that on October 10, 1837, Joseph Bell took a certificate of transfer of thirty shares in said corporation. The certificate purported to be upon a sale of them by Morse to Bell. It was contended by the defendants, that notwithstanding the conveyance was in form an absolute sale, it was in fact a mere security, and was so intended by the parties. Bor this purpose the defendants offered to show that in 1837, and 1838, after the sale, the dividends on those shares were paid to T. Morse; that at the annual meetings holden January 1, 1839,-40,-41,-42,-43 and 44, T. Morse was elected one of the directors of the corporation; that in 1839, and 1840, Joseph Bell was clerk, and as clerk recorded the fact of the election of T. Morse; that several times objection was made as to his eligibility, based upon the provisions of the by-laws of the corporation, that all officers of the corporation should cease to be such on ceasing to be stockholders, and that, on such occasions, he claimed to be eligible, by reason of the fact, as he alleged, that the transfer was by way of security only, and that Bell and T. Morse, being present at a meeting of the proprietors after the transfer, conversed together relative to the transfer, and represented that the sale was only by way of security. The court rejected the evidence. To the foregoing rulings the defendants objected.</p>

Case against the defendant, as sheriff of the county, for an alleged default of Joseph L. Gibb, a deputy, in neglecting, in the service of a writ in favor of the plaintiff against one Ira Savage, to attach certain personal property specified in the declaration.

Foreihn Attachment. Timothy Perkins, one of the trustees, disclosed, in answer to interrogatories, that in March, 1843, he made a bargain with the defendant, Jones, to purchase Ms farm in Woodstock, and took a deed of the same, and gave in return a note for §200, payable April 1, 1844, and one for §100, payable April 1, 1845, with the further agreement, that if bis (Perkins’) son, for whom the purchase was made, did not see fit to remove to Woodstock and take the farm, the…

Trover for a horse. The plaintiff claimed the horse by virtue of a mortgage made by Seth Conant and Samuel Bradbury, Jr., to the plaintiff, on the tenth day of September, 1842, to secure the payment of a promissory note for the sum of one hundred dollars, made by the mortgagors jointly and severally, and payable to the plaintiff, or bearer, on the first day of January, then next, with interest.

Indictment. It was alleged that the respondent, on the tenth day of June, in the year 1842, falsely and fraudulently altered a certain accountable receipt for property, purporting to be signed by one Jonathan Ramsey, which said accountable receipt, so falsely and fraudulently altered, was originally as follows, that is to say: “ Received of John S. Bryant, deputy sheriff, two steers, one heifer, one horse, one hog, ten sheep, all valued at fifty dollar’s, property that is…

Assumpsit on a note dated December 12,1884, for $30, and interest annually. There was a second count for money had and received. The defendant pleaded the general issue and the statute of limitations, and the plaintiff replied a new promise, within six years, on which issue was taken.

Foreign Attachment. In this action, Daniel Page and Greenleaf N. Pierce were summoned as trustees of Samuel Page, Jr. Pierce disclosed, at the September term, 1848, that in June, 1842, he gave to Samuel Page, Jr., two promissory notes, each for the sum of $100, which notes were made payable to David Page, at the request of Samuel Page, Jr., in order, as he said, to save them from his creditors, as he was about to go into bankruptcy.

Assumpsit, to recover for expenses incurred in the sup port of Samuel Moulton, a pauper, alleged to have his settlement in Campton. It appeared that the settlement of the pauper was derivative from his father, David Moulton, who, it was alleged, had acquired his settlement in Campton by residence and owning real estate to the value of $150, for four years, and paying all taxes assessed thereon.

/Writ or Entry, to recover lot No. 20 in the third range of lots lying east of the Ammonoosuc river, in Bath.

Assumpsit. The declaration alleged that the plaintiff’ had built a certain wood-shed for the defendant, at his request, and found materials therefor, in consideration of which he promised the plaintiff to pay him as much money as he reasonably deserved to have therefor, &e. There was also a count in indebitatus assumpsit for work and labor and materials furnished. The writ'was dated August 23, 1841.

Indictment for perjury, in which it was alleged that at the court of common pleas holden at Haverhill, in the county of Grafton, on the first Tuesday of February, 1844, a certain issue duly joined one Thomas Potter and one Henry George in a plea of the case, in which Potter was plaintiff' and George was defendant, came on to be tried in due form of law, and was then and there tried by a certain jury of the country in that behalf, duly impaneled and sworn between the said…

Trespass, for taking and carrying away a quantity of lumber. It appeared that on the 10th day of August, 1837, one David Trafton, to secure the payment of the amount due on his note for $1,000, payable to the plaintiff, mortgaged a quantity of lumber, described as “ all the lumber that belongs to me, manufactured or in the log, at the mills in Bethlehem owned by Stevens and others, and also at the mills in the same town owned by Sibley and others — the whole valued at $500.

<p>Assumpsit. The defendant moved for leave to plead his bankruptcy under the following circumstances :</p> <p>At the February term, 1843 — his proceedings in bankruptcy then pending — an injunction was obtained from the district court to stay proceedings upon the application of the assignee during that term, but not in time to prevent the trial of it. A verdict was rendered for the plaintiff, to which the defendant excepted ; but the injunction having been served in a few hours after the verdict, all proceedings were suspended until the defendant obtained his certificate, and the injunction vras dissolved. At the February term, 1844, the plaintiff having procured a dissolution of the injunction, moved for judgment on the verdict. The defendant suggested that exceptions had been filed and a motion made for a new trial, before the service of the injunction, and moved that the questions be transferred. The case was transferred to this court, and exceptions were overruled at the December term, 1844.</p> <p>The defendant obtained his certificate some time between the February and September terms, 1843; and at the September term, 1843, notice was entered upon the docket to the plaintiff, that the defendant should plead his certificate in bar of the further maintenance of the suit.</p>

Case, for the neglect of Stephenson, a deputy of the defendant, who was sheriff of the county of Coos, for not serving an execution in favor of the plaintiff, against one Horace Loomis.

Trespass, for breaking and entering the plaintiff’s close in the township of Success, and cutting and carrying away certain pine trees, &c. Plea, the general issue. The plaintiff offered evidence to show the cutting of timber upon the locus in quo, sufficient to support the action, if he had a title.

Covenant. The declaration set forth a breach of the covenant against incumbrances, in a deed of the defendant to the plaintiff, of lot No. 36, in the second division in Northumberland. The deed was dated 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 the lot, and of his right to cut and carry away the same.

Writ of Entry, to recover five square rods of land in Lancaster. Plea, the general issue.

Writ oe Entry. John Smith, the late husband of the plaintiff, conveyed to the Manufacturers’ and Mechanics’ Bank, a corporation in Massachusetts, the James Hugh, farm, so called, in Colebrook, a part of which farm is demanded in this suit. The plaintiff did not sign the deed. The bank conveyed the same to E. G-. Messer, describing it particularly by metes and bounds, and Messer conveyed it to Edmund Chamberlain, September 20, 1830.

Case against the defendant, as sheriff of the county, for the malfeasance of his deputy, Leonard Johnson.

Case. The declaration set forth that one Nahum Harrington was indebted to the plaintiff upon a promissory-note ; that the plaintiff purchased a writ and delivered it to the defendant, who was sheriff of the county, for service ; that the defendant, on the 20th of February, 1844, attached the equity of redemption of a farm in Alstead, belonging to Harrington, subject to three prior attachments in favor of Oliver Huntington, Thaddeus Davis, and Daniel Maulé; that the plaintiff…

<p>Appeal from the decree of the judge of probate, allowing the appellee $2,000 out of the estate of her late husband, Joel W. Eaton, for her present support.</p> <p>It appeared in evidence that the whole estate of the deceased amounted to about $11,000. The claims presented amount to $11,180, and others, ascertained to be justly due, to $7,000. The estate is very considerably insolvent —the value of the real estate in which the widow is entitled to dower being about $2,000.</p>

Trover for a horse. Plea, the general issue. The plaintiff, to prove property in the horse, offered in evidence a mortgage deed from Anson Ramsdell and Ebenezer Burt, to himself, conveying, among other things, two horses, described as belonging to the said Ramsdell. Further evidence was offered to show that the horse in question was one of the horses mentioned in the mortgage.

Case, to recover damages for an injury sustained by the plaintiff, October 22, 1844, by reason of the deficiency of a road, which the plaintiff alleged the defendants were bound to keep in repair.

Review of an action upon the case. The original judgment was rendered in favor of the plaintiff at the April term of the court of common pleas, for this county, 1844, which term closed on the sixteenth day of that month. The writ of review was issued from the clerk’s office of said court, March 18, 1845, returnable at the September term, 1845, but it was not served upon the plaintiff until the 26th of April, 1845.

Assumpsit, for $400, money had and received, submitted to the consideration of the court upon the following statement: On the 19th of September, 1838, the defendant, upon application of the plaintiff, agreed to sell and convey to Mm all his interest in certain lands, situated in Newport, at a sum to be determined by appraisal.

Writ of Entry, founded upon a mortgage made by the defendant to James H. Brigham, to secure a promissory note, and assigned to the plaintiffs. The defendant pleaded usury taken by Brigham before the assignment, averring that the note and mortgage were assigned long after the note was due, offering to verify the plea by his own oath, and praying for a deduction of three times the amount of the usury.

Scire Facias against the defendant, as bail of one Whittemore.

The reasons of appeal were: 1. Because the appellant was disallowed by the said judge that portion of his ward’s funds which was loaned to one Asaph Evans, which is likely to be lost by his subsequent failure, although the guardian, as he alleges, used due prudence in making the loan, and due diligence at all times to avoid and prevent any loss thereby. 2.

Debt on a bond. The declaration alleged that the defendant, on the 20th of March, 1844, by written obligation, &c., acknowledged himself to be bound to the plaintiff in the sum of $500, which was declared by said writing to be the stipulated damages in case the defendant did not abide by and fully perform the aw'ard to be made by certain arbitrators, named in the instrument.

Writ or Review, of a plea of land, wherein Otis was plaintiff and Currier was defendant. The original action was commenced .at the court of common pleas for Merrimack county, September term, 1843. Judgment, as upon a mortgage, was rendered for the plaintiff to recover possession of the premises.

Debt upon a bond, dated January 12, 1822. Upon oyer prayed, the condition of the bond was set out, whereupon the defendants demurred generally.

Complaint, under the provisions of law for the maintenance of bastard children. The defendant had been duly recognized for appearance at the court of common pleas, and upon the trial of the issue the complainant was offered as a witness.

Petition for leave to appeal from a decree of a court of probate. The petitioner had, on the fourth Tuesday of April, in 1830, been appointed by that court guardian of Abigail M. Presby, and on the fourth Tuesday of June, 1844, exhibited his account, which was settled by a decree of the same court on the third day of January, 1845. The ward was, with Joseph E. Presbry, heir to Joseph Presbry, whose widow the petitioner had married.

Case, to recover damages for the diminution of the value of the plaintiff’s buildings, situated in Nashua, by-filling up the road opposite said buildings.

Debt on an arbitration bond, in the common form, with the usual condition to submit, abide judgment, &c. It appeared that the parties agreed to submit the demand made by Moore against Robinson, which was annexed to the agreement of submission, to tbe determination of three arbitrators.

In Equity. The statements of the bill and axiswer, together with important testimony in the case, are set forth by the court in the opinion.

Judgment had been obtained for the plaintiff for $630.92 debt, and $21.55 costs, and execution issued thereon was returned satisfied to the amount of $405.90. The ad damnum in the writ was $500, and at the return term of the execution, the plaintiff moved for leave to enter a remittitur for the excess of the judgment over the ad damnum. To this the defendant did not object, but parties claiming an interest, as having attached the same property, opposed the motion.

Foreign Attachment. The facts of the case, as discovered by the disclosure of the trustee, are sufficiently stated in the opinion of the court.

Assumpsit, for services as teacher in district No. 11, in Goffstown, for a period of ten weeks, commencing December 4, 1843.

Assumpsit on a promissory note. The defendant pleaded the statute of limitations, to which the plaintiff replied that the defendant was beyond the jurisdiction from the time of the date of the note until six months before the action was commenced.

<p>One tvlio has been recognised to appear as a witness in a public prosecution, is entitled to his fees for travel and attendance, to be paid by the county.</p>

Appear from a decree of the court of probate, disallowing a paper offered for probate as a codicil to the will of Samuel P. Marston, in these words: “ Charlestown, Mass., this twenty-sixth day of March, in the year A. D. eighteen hundred and forty-two ; witnesseth the subscriber, Samuel P. Marston, of Greenland, in the county of Rockingham, State of New-Hampshire, for divers good causes and valuable considerations hereunto moving me, I do promise to pay my nephew, Andrew B.…

In Equity. Bill, to establish the title of the plaintiffs to a parcel of land in Portsmouth, formerly owned by Edmund Q. Sheafe, and to redeem a mortgage of the premises, executed by him. The plaintiffs claimed, as heirs at law of Susan Sheafe, the widow of Edmund Q. Sheafe, and alleged that she was seized in fee, by virtue of a devise to her by her husband, subject to the mortgage, and died intestate.

Petition for partition of certain lands situated in 'Wind-ham, in which the petitioner alleged that he was seized of an interest in common and undivided, in right of his wife, Margaret Nesmith, with the respondents.

Case. It was proved that the plaintiffs owned and occupied a farm in Hampton, lying on both sides of the post road — the dwelling-house being witbin two rods of the road; that in August, 1844, the defendants erected a bridge across their railroad, which intersected the post road at a point nearly opposite said dwelling-house, and constructed an embankment as an abutment to said bridge, of the height of about ten feet, and extending, at a gradually diminishing height, for the…

Trespass for breaking and entering the plaintiff’s close, &c. The defendant pleaded in justification, 1. A right of way, common to all the inhabitants of Hampton, over the land where the alleged trespasses were committed, to the shore of the Atlantic ocean. 2.

The parties agreed to a statement of facts on which, the case was to be submitted to this court. * The plaintiff at this term moved to amend the statement in several particulars, or to discharge the case agreed, so that the action might stand for trial, and he filed an affidavit, setting forth that the facts in the proposed amendments were in his belief true and susceptible of proof; and that his examination of the case, before having agreed to it, having been rather hasty…

Assumpsit upon a contract signed by tbe defendant, the import of which is expressed in the opinion of the court. Plea, the general issue.

Trespass, for breaking the plaintiff’s close, in Exeter, on the 21st day of May, 1844.

Case for slander. The first count charged the defendant with speaking the words, “What will Merrill do next ? Kimball has had his barn burnt, and Hoit will have his burnt within a fortnight. We know persons about here bad enough to do this;” meaning the plaintiff, &c. The second count charged the words, “It is my opinion that William Merrill set fire to Kimball’s barn.” Plea, the general issue.

Indictment, charging that the defendant willfully and maliciously cut a rope, on which a national flag was suspended, the property of William P. Frost and others, to the injury of the rope and banner, and contrary to the statute, &c. To this indictment the defendant demurred generally.

Habeas Corpus. On the 20th of September, 1843, Andrew Howard was arrested upon the warrant of a justice of the peace, charging him with the murder of Phebe Hanson. At the January term of the- court of common pleas, A. 3). 1844, he was indicted by the grand jury. He was tried at the January term, 1845, when the jury returned a verdict of murder in the first degree.

Writ or Entry, dated July 15, 1843, for a tract of land situate in Strafford. George Berry, one of the defendants, filed a disclaimer, which was accepted. Benjamin Berry, the other defendant, pleaded the general issue.

<p>It is irregular to present a statement of facts for the consideration of the court, upon -which the court can render no judgment and make no order.</p> <p>"Where one had been tried upon an indictment charging him with larceny, and acquitted; and he was afterward charged with conspiring with others unlawfully to obtain the goods for which the larceny was charged in the first indictment; — Held, that the acquittal, upon the former charge, was no bar to the latter — the offence charged being entirely distinct.</p>

In Equity. The bill states that, by an agreement between the plaintiffs, David Davis, and Sally W. Davis, his wife, in consideration of money of the wife, furnished him, David conveyed to the defendant, to hold in trust for his wife, a lot of land, called the Crockett lot, in Middleton, and that the defendant signed the following agreement: “Deceived of Sally W. Davis a deed of a piece of land, at Middleton Corner, known by the name of the Crockett lot, which T promise to…

Debt on a bond. One David Davis was, on the 18th day of September, 1840, arrested on an execution, wherein Hayes was judgment creditor, and thereupon gave said bond to the creditor, with said Ebenezer S. Pike and one Benjamin Savage as sureties.

Award by referees, upon a rule entered into by the parties, returnable to this court. The defendant objects to the acceptance of the report: 1. Because the referees took into consideration and allowed to Davis the amount of a certain promissory note which was given for the price of spirituous liquors. 2. Because the referees took into consideration other claims, and allowed the same to Davis, which were wholly for the price of spirituous liquors.

Pauper Claim. Question transferred to this court. Isaac Small was lawfully married to Mary Cummings, of Bridgewrater, in the county of Grafton, some time in 1825. At the time of the marriage he had a settlement in the town of Madbury, in the county of Strafford, held under his father, which was gained prior to the year 1796. Since the late law was passed, rendering all settlements void gained prior to the year 1796, it appears that Small has no settlement in this State.

Assumpsit, for money had and received; writ dated February 8, 1843. The defendants pleaded that the cause of action did not accrue to the plaintiff within six years, &c. The plaintiff replied, that at the time the cause of action accrued he was beyond the seas, and without any of the United States, and so remained and continued until the commencement of this suit.

<p>Assumpsit, to recover $12.50, paid by the plaintiff to the defendant under the circumstances described in the opinion of the court.</p>

Writ oe Entry, to recover a tract of land, situated in the town of Strafford. The tenant pleaded the general issue.

Petition for a highway in Effingham. The petition was made and filed and the order of notice issued on the 22d day of March, 1843, and returned at the April term of the court of common pleas, next ensuing, where the' defendants were defaulted.

Petition for a public highway in Conway, filed April term, 1844, and referred to the road' commissioners, October term, 1844. The road commissioners gave the requisite notices, examined the premises, and heard the parties in October, 1844, and at May term, 1845, reported against laying out the highway prayed for.

Assumpsit. The plaintiff declared as indorsee of a promissory note made by one William Hayden, payable to the defendant, and by him indorsed to the plaintiff, with counts for money had and received, and money paid. The plaintiff produced the note described, with the defendant’s name indorsed in blank on the back, where also appeared the name of the plaintiff.

Trespass, for breaking and entering the plaintiff's close, and cutting and carrying away one pine tree. The question being as to -the location of the dividing line between the two contiguous lots, severally owned by the parties, the plaintiff offered his title deeds and evidence of surveys tending to prove that the tree in question stood upon his side of the line. The plaintiff’s lot lies west of the defendants’.