Volume 18 — New Hampshire Reports

Petition to redeem ; filed under the statute relative to the redemption of property mortgaged.

Assumpsit. This action was brought to recover for supplies furnished by the plaintiff to one Samuel Moulton, a pauper, alleged to have his settlement in said Campton, deriving it from his father, Daniel Moulton. It was admitted by the defendant town that the supplies had been furnished, and that the said Samuel was poor and stood in need of relief, and it was not controverted that he had the settlement of his father, Daniel Moulton.

Case. The declaration alleged that the plaintiff hired the defendant to work in his mill through the winter as head-sawyer, at §14.50 per month; that the defendant undertook to work in a faithful and workman-like manner, but worked so unskilfully that the mill became frozen Up, and for a long time was useless, &c. The defendant’s undertaking was admitted as alleged, and he also admitted that the mill became frozen, and that it consequently stopped.

Indictment, charging that the defendant, at the time and place named, &c., “ with force and arms did wilfully obstruct one Joseph Powers, he, the said Joseph Powers, then and there being a deputy sheriff,” &c., “ and then and there being in the due service of a writ of attachment, as he was therein commanded, the same being lawful process in a civil case.” The indictment then sets out the writ, and proceeds, “ which writ is duly indorsed according to law, by having the name…

Foreign Attachment. By the disclosure of the trustee, it appeared that, about a year before the service of ■the writ upon the trustee, he had bought of the defendant a wagon, and agreed to pay him for it seven and a half thousand of long spruce shingles, to be delivered at the house of the trustee during the winter ensuing.

Assumpsit. This case was ordered to be audited at the February term, 1845. The plaintiff took out his rule, and the auditor issued his notice to the defendant, dated May 15, 1845, that there would be a hearing on the 30th day of May, 1845. An ex parte hearing was had on said day, the defendant not attending. The report was made at the next term.

In Equity. The bill stated that Silas Sanborn, of Boston, in the commonwealth of Massachusetts, recovered a judgment against the plaintiff, in 1844, in a writ of entry upon a mortgage which the plaintiff had given him, to secure the payment ot a sum of money: That upon that judgment a writ of possession was issued on the first day of January, 1845, which was executed, and the land surrendered to Mr. Brewster, the attorney of Sanborn: That an action was brought at the…

Indictment, alleging that the respondents, all of Lunenburg, Vt., on the 11th day of July, 1845, unlawfully brought one Esther Moore, a poor and indigent person, having no visible means of support, and having.a settlement in Vermont, into the town of Lancaster, in this county, and there left her, knowing her to' be poor, and to have no visible means of support.

Foreign Attachment. Cargill, one of the trustees, disclosed that in September, 1842, he and Lewis C. Porter went into business together, each to furnish a capital of $750, and agreed to purchase Carlisle & Porter’s stock of goods; each to settle for one half the amount, and neither to be holden for the other. According to that agreement they did purchase the stock, and Carlisle settled for one half and took a bill in the following form : 1842.

Trespass, for an assault and false imprisonment. Plea, the general issue, with a brief statement that whatever the defendant did, was done in his official capacity as a justice of the peace.

Information. The first count alleged that the town neglected to keep in repair a certain road; and the second count, that the town neglected to build it.

Debt upon a bond dated April 15, 1844, executed by one Samuel J. Russell, and the defendant and Bushrod W. Russell, conditioned that “ if the said Samuel J. Russell, now a prisoner at the suit of said Charles W. Hawley, shall, one year from the date hereof, apply to the proper authority, and be admitted to take, and shall actually take the oath or affirmation prescribed by law for the relief of poor debtors, or in default thereof shall surrender,” &c., then the bond to be…

Trespass, quare clausum. Defence, that the defendant entered, as the agent and servant of the selectmen, and constructed a highway, duly laid out over the locus in quo. Upon the trial it appeared that in March, 1844, Charles Gleason held a mortgage of the premises, made by T. S. Gleason, and that the plaintiff was the purchaser of the equity of redemption. The premises were in the possession of a tenant.

Debt, to recover damages awarded to the intestate against the town of Unity, for land taken for a highway, laid out by a committee appointed by the court of common pleas, upon the petition of Booth and others. The sum of one hundred and fifty dollars was awarded by the committee, whose report, duly returned, was accepted at the April term of the court of common pleas, in 1837, at which term judgment was rendered upon it.

Writ op Entry, to recover a certain tract of land in Claremont, described as follows: Beginning at the southwest corner of Hiram H. Ersldne’s land; thence south, 77 deg. east, 98 rods, to land belonging to the heirs of Bill Barnes, to a stake and stones; thence south, 13 deg. west on said Barnes’ land, 11 rods, 16-J links, to a stake and stones; thence north, 77 deg. west, 98 roads, to land formerly owned by David Hurd, and now owned by Ezra Sheldon ; thence north, 13 deg.…

Writ oe Review. The original action was brought by Otis against Currier, to recover possession of certain promises, particularly described in the writ. The action was founded upon a mortgage, and at the September term, 1843, the plaintiff, Otis, obtained judgment as of mortgage. Subsequently the defendant, Currier, having, on petition to this court, obtained leave therefor, brought this writ of review. See a former case, 17 N. H. Rep. 463.

<p>Appeal from the decree of the judge of probate.</p> <p>From the statement of facts it appeared that Caleb Davis died in February, 1844, intestate, leaving five children and one grandchild,William IT. Davis, three years of age, the son of Caleb Davis, Jr., deceased; and his estate was distributed accordingly.</p> <p>On the 17th of July, 1845, said William II. Davis died, leaving a mother, who is the wife of Whitten, and one of the appellants, but leaving no brother or sister.</p> <p>The judge of probate decreed a distribution of his estate, derived from the estate of his grandfather, Caleb Davis, among the children of said Caleb, to the exclusion of his mother; from which decree this appeal is taken.</p>

Indictment. The defendants were selectmen of the town of Boseawen from March, 1844, to March, 1845, and this was an indictment charging them with erasing, from the list of voters in that town, the name of Timothy Kelley, alleged to have been a legal voter in that town.

Trespass, for breaking and entering the plaintiff’s close in Bradford. The plaintiff claimed title under the levy of an execution made November 30, 1844, which execution issued on a judgment recovered by him November 19, 1844, against the defendant, William Sawyer.

Petition, to establish the line between the towns of Henniker and Hopkinton. The parties agreed to the following statement of facts: By the original plans the line between the two towns is a straight one. There is no dispute about the bounds at the ends of the line at the corners ofthe towns.

Assumpsit, to recover the sum of $254.55, paid by the plaintiff to the Derry Bank, being the amount of a note signed by the parties, and one William Hall, dated October 31,1842, on which the above sum was due when the plaintiff paid it, May 80, 1844. The evidence tended to show that the note in question was given to renew a note made payable to the bank, signed by the parties to it, for the benefit of John R. Hall, who had the money.

Writ or Entry, wherein the plaintiff demands a piece of land in Mason. Plea, that the cause of action did not accrue within twenty years; upon which issue was joined.

<p>A party cannot except to a remark of the court in charging the jury, which appears to have heen favorable to his case, and could not he prejudicial to him; even if the remark was irregular, introducing the private opinion of the judge.</p>

Assumpsit, for money had and received by the administrator of Martha Cummings, to recover the amount of a note dated May, 1838, for $600, made payable by the defendant to the said Martha in her life-time. It appeared, from the admissions of the parties, that said Martha died January 13, 1844, and that six or eight weeks before her death she delivered the note in question to the.defendant, who is her nephew, as a gift, he having paid nothing for it.

Case, for a libel alleged to have been published, or caused to be published, in “ The Gleaner,” a newspaper printed at Manchester, December 14, 1844. The defendant pleaded the general issue.

Debt, to recover a penalty founded upon chapter 139, sections 3-10, of the Revised Statutes, The declaration alleged that on the 28th day of November, 1844, the defendants found twenty-five yards of velveteen cloth, of the value of $13.50; that they did not post up a notice within six days, describing it, at two places in Manchester, or at any public place in any two towns adjoining Manchester, nor cause a copy of the notice to be published three weeks successively in some…

Assumpsit. The defendant pleaded as follows : And the said Jeptha Conant comes and defends, &c.; when, &c., and says he ought not to he compelled to answer to the said writ and declaration of the said Henry and Robert, because he says that the said Henry and Robert heretofore, to wit, in the court of common pleas for the county of Middlesex and commonwealth of Massachusetts, iu the year of our Lord one thousand eight hundred and forty-five, holden at Concord, within and for…

Assumpsit, to recover the sum of $466.45, alleged by the plaintiff to have been paid by him to the Derry Bank, upon a note which he signed at the request and for the benefit of the defendant. The defendant confessed the action, and that the plaintiff was entitled to recover the sum of $248.37, but alleged that he was not entitled to recover any larger sum, and as to the residue of the sum of $466.45, he pleaded the general issue.

Case, against the late sheriff’ of Hillsborough, for default of his deputy. The deputy sheriff attached property upon a writ in favor of the plaintiff, against J. Stowell, which, upon a proper application, was appraised agreeably to the statute, and delivered to Stowell, upon his bond to the sheriff to be answerable for the appraised value in the event of a judgment in favor of the plaintiff.

Assumpsit. The case was referred to an auditor, from whose report it appeared that two items in the plaintiff’s account had been charged in his book to Nathan Bach-elder. The plaintiff’s counsel offered to show, by the examination of the plaintiff himself, that the person whom he intended to charge was the defendant, Nathan Bach-elder.

Foreign Attachment, against J. M. M. Elliot, as trustee of R. Xittredge. The trustee pleaded that he had not, either in his private capacity, or as executor of the last will of Jacob Elliot, at the time of the service of the writ, or since, any money, goods, &c., of the principal debtor, in his possession.

Assumpsit, for money bad and received. Plea, that the cause of action was a debt, owing by the defendant, February 14, 1842; that on that day lie was a citizen and resident in the district of New-Hampsbire, and applied to be admitted to the benefit of the bankrupt act, and was declared a bankrupt; and that November 21, 1842, it was decreed by tbe court that he be fully discharged from all his debts.

Trespass, for breaking and entering the plaintiff’s close in Epping, on the 15th of May, 1845, and preventing the plaintiff from placing a building upon it. It appeared upon the trial that the locus in quo is a narrow strip of land, lying on the southerly side of Lamprey river, between the river and the traveled part of the highway which comes near the bank.

Assumpsit, for money had and received. Upon tho trial the plaintiff offered the deposition of Ira U. Brown, the son and heir of the intestate, taken the 25th day of August, 1845, to the admission of which the defendant objected, on the ground that the deponent was interested in the event of the suit. The plaintiff then offered a release and quitclaim of all the right of the witness in the estate to his mother, containing an order on the plaintiff for payment.

Writ or Dower, in which the demandant claims, as the widow of Simon Dearborn, deceased, to he endowed of the land described in her writ, of -which she alleges that the said Simon died seized, &c. The tenant pleaded that Simon Dearborn, in his life time, on the 26th day of August, 1818, by his deed of that date in due form, conveyed the premises to the New-Hampshire Bank, in fee and in mortgage, for the purpose of securing the payment of a note dated on the 23d day of…

Writ oe Entry. The parties submitted this case to the court upon the following statement of facts: At the time of the service of the writ the defendant was not tenant of that part of the demanded premises to which he has pleaded non-tenure, but the plaintiff was then and has ever since been tenant of the same as of freehold.

Debt. The defendants were summoned to answer to the plaintiff in a plea of debt, that to the plaintiff they render the sum of $110, which it was alleged the town owed to the plaintiff, and unjustly detained from him.

Dower. The plaintiff brought this action to recover her dower of a certain farm, of which she alleged that she was dowable; and also to recover damages for the detention of the same, alleging a demand upon the defendant on the 2d day of January, 1845. The writ was dated July 22, 1845.

The plaintiff in error was tried upon an indictment for carnally knowing and abusing a female child under the age of ten years. The defendant pleaded not guilty. Counsel were assigned him in pursuance of the statute for that purpose, and a day appointed for his trial.

Case, to recover damages for digging a ditch on the plaintiffs’ land. Plea, the general issue.

Assumpsit on a promissory note, signed by the defendant, and payable to Prudence Place, administratrix of the estate of George Place, or her order.

<p>A contemporaneous memorandum is not admissible to prove a fact not material to tbe issue, but a witness many use the paper, if it will aid in refreshing his memory.</p>

Assumpsit, upon a promissory note, dated December 4, 1840. The plea, which was in due form, alleges, among other things, that the defendant, being a resident, &c., duly filed his petition to be declared a bankrupt, &c., under the act to establish a uniform system of bankruptcy throughout the United States, in the District Court of the United States for the district of New-Hampshire, on the 24th of September, 1842; that he was declared a bankrupt, October 18, 1842; that the…

Complaint, filed before a justice of the peace, to recover a fine of two dollars, alleged to have been incurred by the defendant for unnecessarily neglecting to appear at a training and inspection of the third company of infantry, in Farmington, in said county, in the thirty-ninth regiment of New-IIampshire militia, on the 16th day of May, 1843, at one of the clock in the afternoon, near Hiram Blake’s store, in said Farmington. Plea of not guilty was filed.

Trespass, for taking and converting a daguerreotype apparatus, property of the plaintiff. The plea is the general issue, with a brief statement that the defendant would justify, by virtue of an attachment of Nathaniel Wiggin, one of his deputies, made on a writ in favor of Jefferson Smith against the plaintiff. The plaintiff contended that said property -was not liable to attachment, being tools of his occupation.

Petition eor a Eeview. Horace W. Emery, the petitioner, represented that on the 11th day of December, 1845, a writ was, at the suit of James Gr.

Assumpsit, against B. Sanborn and J. M. Harper, executors of the last will of Smith Sanborn, to recover $12,000, money had and received by the defendant’s testator, to the plaintiff’s use, on the first day of June, 1837. Writ dated February 8, 1843. The defendant pleaded the general issue and the statute of limitations.

Writ op Entry, in which the demandants claimed to recover a certain part of a building at Meredith. The action was commenced August 25, 1845. At the trial, upon the general issue, the demandants offered in evidence a mortgage deed, executed by Charles C. Tebbitts to George L. Sibley, December 19, 1837, and with condition to secure the payment of a note, from the former to the latter, of even date, for $800, in one year, with interest.

Assumpsit, for $200, for labor and services done and performed, and materials found and provided, by the plaintiff for the defendants, in building a school house, and for $200 had and received by the defendants to the plaintiff’s use.

' Writ of Entry, for the recovery of a farm. The tenant pleaded the general issue.

Covenant. The deed contained the following covenants : “And I, James T. Taylor, my heirs, executors and administrators, do hereby covenant, grant and agree, to and with the said Solomon Kennison, his heirs and assigns, that, until the delivery hereof, I am the lawful owner of the said granted premises, seized and possessed thereof in my own right in fee simple, and have full power and lawful authority to grant and convey the same in manner aforesaid ; that the said premises…

Complaint, under chapter 209 of tbe Revised Statutes, commenced before a justice of tbe peace, and brought to tbe court of common pleas upon a plea of soil and freehold.

Petition 'of Sinclair and others for a highway in Eaton and Albany. The highway had been laid out, and judgment rendered in favor of the petitioners for their costs, to be paid, as provided by law, by the county, when a question was raised and submitted to the court as to the right of the petitioners to tax costs for the travel and attendance of their witnesses. The solicitor of the county objected to the allowance.

Petition of the selectmen of Chatham, setting forth that they, with the selectmen of Jackson and the selectmen of Bartlett, had perambulated the line between Chat-ham on the one side, and Jackson and Bartlett on the other, and disagreed with the selectmen of those towns in establishing the boundaries, &c., and praying the court to settle the line.

Assumpsit, for money had and received, against the defendants, who were sued as copartners, by the style of “Farmers and Mechanics.” The plaintiff gave in evidence a note signed “ Farmers and Mechanics Co., byN. M. Swasey, agent;” also a note, signed “Farmers and Mechanics, per E. B. Hibbard, agent.” It was admitted that Swasey and Hibbard were severally duly authorized agents of a company, doing business at the several dates of the notes.

Writ or Entry. Plea in abatement, alleging that before the purchase of the original writ in this action one Joseph Dodge was seized of the demanded premises in fee, and by his deed of mortgage, duly executed, acknowledged and recorded, on the 2d day of September, 1845, conveyed the premises to the defendant in fee and in mortgage, to secure the payment of Dodge’s promissory note, dated, &c. The defendant averred that he had never entered upon the demanded premises, or been…

<p>If the legislature authorize the towns to pass a particular by-law, any form of words is sufficient to constitute such a by-law, by which the town, by a legal vote, intended to pass it.</p> <p>It seems that the repeal of a statute which gives authority to the towns to pass a particular by-law will in general annul the by-law.</p> <p>The Revised Statutes, in repealing the laws which gave such authority, and. in reenacting them at the same time in the same forms, do not convey an expression of the legislative will to abrogate the by-laws passed under the preexisting laws ; they having been passed by towns in the ■exercise of a municipal power, which the legislature plainly intended to leave intact.</p>

<p>Tho possession of the mortgagor, until it is shown to bo adverse, preserves the seizin of the mortgagee, so that his right of entry is not barred by twenty years of such possession.</p> <p>A mortgage deed need not, as the law was in 1820, have described the note secured by it, in every particular, provided there was no discrepancy.</p>

Trover, for a quantity of corn, &e. Plea, the general issue. The defendant, a constable of the town of Lyman, having a writ in due form, issued by a justice of the peace against one Moses Moore, attached the corn in question as his property.

Complaint kor Costs. The defendant commenced an action against one Blake as principal, and the complainant as bis trustee, returnable to tbe term of tbe court of common pleas liolden on tbe third Tuesday of August, 1845, and caused the writ to be duly served upon the principal and upon the complainant.

Assumpsit, for money had and received. The general issue was pleaded. Iu support of the action the plaintiff offered in evidence a promissory note, dated June 5, 1843, signed by the defendants, payable to the plaintiffs, or order, on demand, with interest after sixty days, for the sum of $1400, on which was indorsed at date, $62.77. Two of the defendants, Morrison and Perkins, signed as sureties.

Debt against Richard Smart, William W. Gibson, and Edward R. Webster, selectmen of Rumney for the year 1844. Pleas, 1. Nil debit. 2. No such corporation. In support of the action the plaintiff's introduced an act of the legislature to unite school district No. 5, in Rumney, and district No. 7, in Wentworth, passed on the 2d day of July, 1842, with evidence of a meeting of the Rumney members of the distinct, in 1842, for the purpose of organizing under the charter.

Writ or Entry. Pending the action the demandant moved the court to permit the officer and appraisers to amend the return of the levy of an execution in the name of Leonard Bisco v. Bellows, Redington Co., upon the real estate of Bellows.

Petition for Review. Smith commenced an action against Cole before a magistrate and obtained a judgment, from which Cole appealed to the court of common pleas. The action was committed to an auditor, who made his report; but, prior to the term at which the report was made, Smith’s counsel died, and he had employed new counsel, whom he instructed to go to the jury with the case, if the report was adverse.

Trover, for a birch table. Appeal from a justice of the peace, tried in the court of common pleas, February term, 1846. The evidence tended to prove that William Baleh was the original owner of the table, and also of six chairs, which he sold to Daniel Aldrich in the fall of 1842.

Assumpsit, for work and labor. The action was commenced originally before a justice of the peace, and came up by appeal.

Assumpsit, upon a special contract for the sale and delivery off a quantity of pork. There was also a count for money had and received. The plaintiffs introduced as a witness one V. M. Demick, who testified that, as their agent, he made the contract, and he stated it substantially as set up in the declaration, with this addition, that the defendant also agreed to keep the teams when they should come to remove the pork, over night, free of expense.

Trespass, for taking a pair of oxen'. The defendants justified the taking by virtue of an éxecution in their favor against Charles Patrick, whose property they alleged the oxen were.

<p>Assumpsit, on account annexed for §17.31.</p> <p>To support his claim the plaintiff offered in evidence the report of an auditor allowing him §14.32 damages.</p> <p>To rebut this the defendant offered to prove by the auditor that he allowed the claim upon the testimony of a single witness, and also —what he testified to and then proposed to prove — that his testimony was false and his character for truth was bad. To this evidence the plaintiff objected, and the court sustained the objection.</p> <p>To this ruling the defendant excepted.</p>

In Equity. The bill stated that on the 21st of February, 1839, Justus Perry, of Keene, made his last will, in which, among other bequests, was the following, namely: “I give, bequeath and devise to my son, Henry Perry, the use and income of two shares in the Locks and Canal company, on Merrimack river; also two shares in the Boott Manufacturing company, at Lowell; also one share in the Merrimack Manufacturing company, at Lowell; the said five shares being estimated at six…

<p>In Equity. The bill stated that the plaintiff is an inhabitant of school district No. 7, in Acworth, and possessed of property within the district, and liable to be assessed for his proportion of money voted to be raised by the inhabitants ; that at a meeting of the inhabitants, hold on the 3d of September, 1845, D. Robinson was chosen moderator, but it did not appear that he was chosen by ballot, and that he was not sworn into office ; that under the 3d article of the warrant the district voted to build a' new school house, chose a building committee, and voted to build in some more central place ; that the meeting was then adjourned to the 5th, then to the 20th, and then to the 27th of September, when it was voted to raise the sum of $250 for the purpose ; and that the meeting was further adjourned to October 11, at which time a motion was duly made to re-consider the vote to raise money, passed at the previous meeting, which, as the plaintiff believes, if it had been put would have been adopted by a majority of the actual voters of the district then assembled, and by the vote of those liable to be assessed in a sum equal to two thirds of the tax voted to be assessed; but the moderator refused to receive the motion, and put an end to the meeting by declaring that the articles of the warrant had all been acted on, although no motion had been made to dissolve the meeting.</p> <p>The bill then stated that at a meeting of the inhabitants, February 28, 1844, all the foregoing votes were reconsidered, but that a return had been made to the selectmen, who thereupon made an assessment of said $250 upon the polls and estates of the inhabitants, in which the plaintiff was assessed the sum of $37.50, and committed the same, with their warrant, to the collector, who threatened to collect the same.</p> <p>Prayer for an injunction to restrain the collection of the tax.</p> <p>The parties agreed that on the 30th of September, 1845, the clerk of the district delivered to the selectmen of Acworth a certificate of the vote of the district, passed on the 27th, to raise said sum of $250; that the selectmen, on the 28th of November, assessed a tax therefor upon the inhabitants of the district, and committed the same to the defendant, as collector, with their warrant for the collection of the same, about that time; and that in the month of January, 1846, the defendant collected of J. "W. Beck-with,' one of the inhabitants, his tax, amounting to $3.48.</p>

Petition of Lemuel H. Osgood and Leonard Osgood, for partition. It appeared that since the entry of the petition Lemuel H. Osgood had deceased.

Writ or Entry, to recover one ninth part of a tract of land in Deering, submitted to the decision of the court upon the following statement of facts: Jonathan Straw, late of Deering, died seized of said tract of land, on the 24th day of April, 1843, leaving no lineal heirs. His next of kin and heirs at law were the plaintiff, who was a sister of the testator, and eight other brothers and sisters, or their representatives.

Foreign Attachment-. The plaintiff, having elected to take the disclosure of the trustee, filed an interrogatory for that purpose. To this interrogatory an answer was prepared out of court, in the absence of the plaintiff’s attorney, and in the hand-writing and under the immediate direction of the attorney for the trustee, and was furnished to the plaintiff’s attorney as the disclosure of the trustee.

<p>By the Revised Statutes, chapter 165, section 9, the widow of a deceased intestate, who has left no lineal heirs, is entitled to one half of his real estate, subject to debts, in addition to dower.</p>

In Equity. The bill stated that Jacob, Jonathan, and Sally Jewell sold a piece of land situated at Bugsmouth Hill woods, in South-IIampton, which descended to them from their father; that Jonathan received the consideration, and laid the same out in the purchase of a piece of wood-land of Robert Rogers, situate in Burnt swamp, in East-Kingston, for their common use, benefit and advantage; Jonathan and Jacob to be owners in fee and tenants in common, each of a moiety, and…

<p>A .delivery of the key of a chest, with words of gift of the chest and its contents, is a good delivery to pass the property to the donee.</p> <p>"Where a party dies soon after making a gift, the administrator has no title to the possession of the property embraced within the gift, except under the rights of the creditors. If the property is not necessary for the payment of the debts, the donee is entitled to the possession, and may maintain an action of trover against the administrator, if he takes possession of the property, and refuses, upon demand, to deliver it to the donee.</p> <p>If the property embraced in the gift is necessary, either in whole or in part, for the payment of the debts, the gift is invalid to that extent, the administrator is entitled to the possession of the property, and the claim of the donee is only to what may remain of the property upon the settlement of the estate.</p> <p>Whether a qualified refusal of the administrator to deliver the property, upon demand, because he did not know whether the estate was or was not solvent, would amount to a conversion ; and whether equity, in such case, would restrain the donee from a conversion of the propperty, quaere ?</p>

<p>Assumpsit upon a promissory note, dated May 2, 1837, for $50, payable to the plaintiff, or order, in one year, with interest. "Writ November 18, 1845..</p> <p>Plea, the general issue, with a brief statement that the defendant relied upon the statute of limitations.</p> <p>The plaintiff introduced the note declared on, upon which were two indorsements, one of $13, dated August 25, 1839 ; the other of $20, dated January 1, 1840.</p> <p>The plaintiff here rested his> case. The defendant moved for a nonsuit, on the ground that it was incumbent upon the plaintiff to show by other evidence that said $20 was paid on the first of January, 1840, but the court overruled the motion.</p> <p>The defendant then introduced evidence tending to show that the $20 was actually paid on the second day of November, 1839, and the plaintiff introduced evidence tending to show that the payment was niade on said first day of January, 1840, and the indorsement made on the same day.</p> <p>The court charged the jury that if, from the whole evidence before them, they found that said $20 was actually paid and indorsed on the day that it purported to be, the note would not be barred by the ’statute of limitations, and the plaintiffs would be entitled to their verdict for the balance due upon the note ; but .if they found that the money was paid on the 2d of November, 1839, then the note was barred, and the defendant would be entitled to their verdict.</p> <p>The jury found a verdict for the plaintiff, and the defendant moved for a new trial.</p>

Writ ok Entry, dated January 28, 1846, in which the plaintiff demanded the possession, of a tract of land in Portsmouth, and alleged that James Smith, one of the defendants, on the 5th of September, 1837, being seized of the demanded premises in fee, by his deed of mortgage of that date conveyed the same to one Charles Hardy, to hold to him and his heirs and assigns in fee and in mortgage, and then alleged an assignment of the mortgage to the plaintiff, and a disseizin by…

Writ or Entry, in which the demandant counted upon the seizin of John T. Goddard, the intestate, in fee and in mortgage, which mortgage was made by James Smith on the 2d day of December, 1836, to Charles W. Cutter, who afterwards assigned the same to the intestate. The tenant pleaded that he did not disseize the intestate.

Assumpsit. The plaintiff alleged that the defendant, ■William J. Chesley, on the first of May, A. D. 1881, in consideration of a large amount of property, of the value of .$10,000, devised to him by his grandfather, Benjamin Chesley, late of Durham, deceased, testate, among other things promised and agreed to and with the plaintiff, who is a daughter of said Benjamin, to furnish her, so long as she might remain a widow, good and sufficient keeping for one cow through summer…

Error. The plaintiff in error was indicted for stealing sundry bank bills, amounting together to the sum of $97, and of the value of $97, of the property, goods and chattels of Moses V. Peavey and Sylvester Peavey.

Trespass ,de bonis. The defendant pleaded that he was sheriff of the county, and that the goods were taken by Nathaniel Wiggin, one of his deputies, by virtue of a writ against one Elias W. Hill. The plaintiff replied that he ought not to be barred, &c., because the goods were his, and not the property of Elias W. Hills, &c., and issue was joined.

<p>A party to a bill in equity has a constitutional right to require a trial by jury, of a contested matter of fact, if he asserts that right at a proper stage of the cause.</p> <p>The right is not to be asserted by plea.</p> <p>After the answer is in, and the replication filed, the court can ascertain and determine what matters are in controversy, and cause the proper issues to be framed; which is done on motion.</p> <p>If a party exercises his constitutional right to require a trial by jury, it should be after the replication and before the taking of the testimony. But the court for sufficient reasons may cause issues to be framed after the testimony is taken.</p> <p>A supplemental bill opens the case to a further answer and to further evidence. And in such case, a motion for issues, to be tried by the jury, is in order after the coming in of the answer to the supplemental bill.</p>

Assumpsit, for money had and received. Writ- dated August 5, 1845. The plaintiff specified, as the foundation of his suit, sundry bank bills, of difieren! denominations and dates, between July 10, 1837, and October 1, 1838, amounting in the whole to $231, and purporting to have been issued by said hank. The defendants pleaded the general issue, and gave notice, by a brief statement, that they should rely upon the statute of limitations.

Petition eor Partition. Objection, that if the petitioners are interested, they áre tenants in common, not only with the defendants but with each other, and that they should pray partition among themselves, otherwise the defendants might be prejudiced.

Assumpsit, to recover $12.50 alleged to have been paid by the plaintiff to the defendant without consideration. The facts appear in the deposition of Hanson Evans, who testified, in substance, that his father, the plaintiff, having received a notice from an attorney that a demand had been lodged with him for collection, directed the witness to go and inquire what it was, and, if possible, to settle it, and gave him $5 to enable him to do so.

In- Chancery; The complainant, and the defendant,. William Brown, on the 25th day of September, 1839, entered into articles-of copartnership in the business of the manufacture of sash, blinds, doors, &c., for the term of seven years from the first of the ensuing January, determinable at the election of either party, if the business should be unprofitable at the end of two years.

Foreign Attachment. The trustee disclosed that at the time of the service of the writ, or since, he had in cash and in small notes placed in his possession by the defendant, $159.87: That these notes, and others upon which the money had been collected, were placed in his hands about the 25th or 26th of January, 1843, to secure the payment of a note which he held against the defendant for $600: That the consideration of this note was cash, and that it was dated on the 7th day…

It appeared from the appeal which was filed, that the administratrix and heirs agreed in writing to submit tbe private claim of the administratrix, and the offset filed against the same, to the determination of the judge of probate, in pursuance of a provision of the statute for that purpose, and that he found that nothing was due to ber over and above the matters tiled in set.off, and disallowed her claim ; from which decision this appeal was taken.

Foreign Attachment. It appeared by the disclosure of the trustee in this case, which was taken before a commissioner, upon due notice to the parties, and to Francis Russell, January 6, 1845; that on the 25th day of March, 1841, he took of Nathaniel Abbott and Zara Cutler a lease for five years of the Ethan A. Crawford place, in Nash & Sawyer’s Location, for which he was to pay, on the 28th of August, in each year, the annual rent of $800.

Debt, for rent on a lease. The plaintiff' offered in evidence an indenture of lease between Ezra Niles and the defendant, dated March 4, 1840, by which Niles leased to the defendant certain premises in Haverhill, and the defendant covenanted to pay a certain rent per year. The term of the lease was for live years, commencing March 9, 1840. The lease was assigned to the plaintiff’ by Niles, January 4, 1842.

Motion to amend. The writ was sued out in the name' of Lafayette Elliott, as plaintiff. The plaintiff:’’ s counsel moved to amend, by striking out the Christian name, “Lafayette,” and inserting, instead thereof, Benjamin E. To this the defendant objected, on the ground that it was not an amendable error.

Case, for tire seduction of one Priscilla W. Hoitt, the plaintiff’s servant. At the time of the act complained of, the servant was of the age of eighteen years, whose father had died, and who had no guardian. She had one brother, married, and residing in Hopkinton, in Massachusetts, and another a minor, and poor.

Complaint, made before a justice of peace on the 27th day of October, 1845, charging the defendant with being the father of a child with which the complainant, a single woman, was then pregnant. The defendant pleaded not guilty, and upon examination was held to answer at the court of common pleas next to be holden in the district. In that court, the complainant appeared and was offered as a witness, and a question was made as to her competency.

Trespass quart clausum, and cutting timber trees. Plea, the general issue. The plaintiff offered, (1), an office-copy of a deed from Joshua B. Dodge to Jonathan P. Eaudlott, dated January 25, 1825,, conveying lot No. 61, in Bethlehem, designated by number only. 2. A mortgage from Randlett to Dodge, of same date, conditioned to pay four notes, amounting to $138.15 and interest. 3. A deed from said Dodge to James Handy, dated September 7, 1835, conveying the same premises. 4.

<p>Case. The plaintiff alleged that the defendant unlawfully attached and took away his only cow, contrary to the form of the statute, &c. There was a count in trover.</p> <p>A verdict was taken, by consent, for the plaintiff, subject to the opinion of the court upon the following statement of facts, submitted by the parties:</p> <p>The defendant, as deputy sheriff, attached and took away two cows as the property of the plaintiff. One of the cows attached was a light red and the other a dark rod cow. This action is brought for the light red cow, and the plaintiff says it is his only cow. The defendant contends that there is no evidence tending to show that ho did not also own the dark red cow, and contends that he did own both.</p> <p>It appeared in evidence, from the deposition of Hubbard Q. Blake, that the dark red cow was kept on Elijah Howard’s place, from a calf, until the spring of 1844, when Blake hired her of Walter C. Howard, and gave his obligation for her. He was the son-in-law of tho plaintiff, was with him a good deal, and never knew that he pretended to own any but the light red cow.</p> <p>George Meader testified that he went to live where Elijah Howard lived, in March, 1845; that Elijah Howard kept all his stock there at that time; that he had no cow but the light red cow at the time, or till the giving of his deposition in January; thinks he should have known if Howard had owned any other cow. He was agent for Walter C. Howard, held the obligation given to Walter C. Howard by Blake, forbade the sale of the cow as Elijah Howard’s property; had directions from Walter C. Howard to sell the cow when the obligation run out.</p> <p>The defendant álso contended that the action should have been brought in the name of Hubbard Q. Blake. The plaintiff went to live in the same house with Blake some time in the spring of 1845. Soon after he went '-there, he drove this light red cow there, and made a bargain with Blake to use the milk of the cow during the summer, if he did. not sell her, for which - Blake was to do his washing and mending.</p> <p>Dyer Hibbard and George Meader, during the summer, frequently talked with the plaintiff about buying this cow.</p> <p>It was agreed that if the court shall be of the opinion that the action can be maintained upon the foregoing facts, judgment is to be rendered for the plaintiff for thirteen dollars ; otherwise for the defendant.</p>

Trover, for seventeen thousand shingles. The defendants were charged as late copartners in trade, under the firm of Gilmore & Pratt, and the conversion alleged took place on the 4th day of October, 1844. The defendants pleaded severally the general issue. The defendants were copartners, doing business in Concord from May, 1843, till January 1, 1845, upon which day the partnership was dissolved, and a new firm of Gilmore & Clapp formed.

In Equity. The original bill stated that prior to January 1,1821, two of the defendants, David Stone and Josiah Bellows, 3d, partners under the firm of Stone & Bellows, were under certain liabilities for the plaintiff, Josiah Bellows, 2d, as sureties, and that he induced them to raise $2,900 at the Cheshire bank, and give their note ; and as security for that' and whatever other liabilities they might be under on his account, he caused a certain certificate, of indebtedness,…

Assumpsit, upon the following contract: “For value received, I hereby promise to indemnify and save harmless George Marshall and Elisha Webster from all cost and trouble they may be at in consequence of their backing a writ for William Elliott and Samuel Killam, defendants, in favor of Josiah Bellows, 2d, made returnable to the county court holden at Guildhall pn the last Tuesday of May next. Levi W. Oobleigh.

Covenant broken. Tbe declaration alleged that the defendant, on the 6th of February, 1837, by his deed of that date, bargained and sold to the plaintiff a certain parcel of land in Stratford, bounded, &c., and covenanted with the plaintiff that he was seized in fee of the land, and had in himself good right and lawful authority to sell and convey tbe same in manner aforesaid, and that the plaintiff* might, from thenceforward, by force of the deed, lawfully possess and enjoy…

Debt upon a bond of tbe defendant, dated August 8, 1845. Plea nil debet, witb a brief statement, setting forth that the bond was upon a condition that the defendant should abide by and perform the award of certain arbitrators, to be made in writing, on or before the first day of September, 1845, and that no award was ready to be delivered on or before that day.

Trover, for two letters, purporting to be written by Sophia A. Hall, one to the plaintiff, the other to one Moulton. The parties submitted a case. The defendant is and was a justice of the peace for Cheshire county, and in November, 1845, a complaint for bastardy was duly made before him, by said Sophia, against the plaintiff.

Foreign 'Attachment. To the first interrogatory propounded to the trustee, he answered that on the'19th day of January, 1847, he contracted with Jonathan Rice, one of the aforesaid defendants, to cut, draw out, saw and pile up a quantity of timber standing, which was upon a certain lot, into railroad sills or sleepers, for which, when completed as above, he was to pay him five dollars and fifty cents per hundred sills, or sleepers.

<p>It is not a broach of a covenant against incumbrances that the grantor had, prior to the conveyance, caused water to flow upon the land by means of a dam which he had a right to build.</p>

Writ oe Entry on a mortgage made on the 10th day of April, 1821, to secure the payment of a note for $1150, payable to one Alexander Pickens. The note and mortgage were, on the 5th day of April, 1826, being then overdue, assigned by Pickens to one Cowles; and by him, on the 21st day of December, 1828, to James IP. Bingham.

Trover, for a note of hand, dated February 18, 1846, for |528.45, payable to Proctor & Kendall, or bearer, on demand, with interest, and signed by the plaintiff. On the trial, it appeared that one Buckmau was attested at the suit of Proctor & Kendall, on the day of the date of the note, upon a writ which the defendant, their attorney, had made. The plaintiff was requested to settle the debt, but refused to do so, or to pay any thing towards the same.

Assumpsit on a promissory note. The action was brought against “Isaac C. Harlow, ofj &c., and Experience Harlow, wife of said Isaac Harlow,” and alleged that the defendants, by their note, promised the plaintiff, &c. The defendants pleaded, 1. The general issue, and filed a brief statement, setting forth the coverture of the wife at the time of making the contract, and a subsequent discharge of the husband under the bankrupt law. 2.

Trespass. Some of the articles taken were spirituous liquors, purchased and kept for sale by one Pettengill, as agent of the plaintiff, and were attached by the defendant, a deputy sheriff, as the property of Pettingill, neither he nor the plaintiff having a license to sell.

Debt on a bond executed by said Pillsbury and his sureties, dated December 9, 1844. The bond is in common form, with the conditions prescribed by the law for the relief of poor debtors, that said Pillsbury should, within one year, apply to the proper authority, and be admitted to take, and take the oath prescribed by law for poor debtors, or surrender himself to prison in the manner prescribed by law.

Trespass, quare clausum fregit. Plea, the general issue. The principal question in controversy related to the boundary line between the lands of the parties. Evidence was introduced on both sides to show acts of ownership of the premises in dispute between the lines in controversy, by each of the parties, and their grantors.

Assumpsit, upon an order drawn by Isaac Guild, August 3, 1838, in favor of the plaintiffs, requesting the defendants to pay them the contents of a certain note “ from any overplus which may be realized from the store goods now under attachment, and notes and accounts in your hands as collateral security, when you shall have discharged yourselves as bondsmen on account of E. A. Searle, and a note signed by you as indorser to the Nashua Bank, of four hundred dollars and…

Assumpsit. The defendants were inn-keepers, and the conduct of one of them, True Norris, was such as to make Mm liable to the plaintiffs as a partner, though in fact he was not such.

Assumpsit, upon a note dated on the first day of January,-1837, by which the defendants, in consideration of a conveyance on that day made to them by the plaintiffs, of a right to flow certain land in Sharon, promised to pay them the sum of $25 on the first day of January each year. The sums demanded were those that, by the terms of the note, would have been due on the first of January, 1844, 1845, and 1846.

Indictment, charging that the defendant, at a time and place named, “ with force and arms a good, lawful and sufficient pound, erected and maintained by said town of Manchester for restraining and impounding all creatures therein liable to be impounded, did then and there break, open and make pound-breach, and then and there one dark brown cow, and one dark red heifer, then and there being lawfully impounded in said pound, did then and there, without lawful authority,…

Petition, for damages arising from an alteration in tbe highway near the house of the petitioners.

Assumpsit. The plea set out the writ and return on oyer, and enrolled the summons, and concluded as follows: Whereupon the said Brown prays judgment of the plaintiff’s said writ, because he says that the summons aforesaid is not in due form of law, as is prescribed, in this, namely: that by said wi’it the defendant is required to answer to the said plaintiff in our court of common pleas, to be holden at Exeter, in said county of Buckingham, on the second Tuesday of February,…

Assumpsit. On the 26th day of February, 1846, the defendant commenced an action against the plaintiff, and afterward filed a specification of the items for which he claimed to recover. On the 28th of the same month the plaintiff commenced the present action upon an account annexed to the writ, and other general counts.

Trespass. The defendant craved oyer of the writ and return, and they were set out.

Review. The defendant, who appeared solely for the purpose, submitted a motion to dismiss the case, for the reason that the writ had been altered since it was sued out, by striking out the original return day, and substituting a later day.

Error. Tlie plaintiff' in error was indicted for larceny. The first count in the indictment alleged that the plaintiff in error, on the 18th of June, 1846, stole “ one bank bill for the payment of $5, and of the value of $5; one other bank bill, for the payment of $20, and of the value of $20; fourteen other bank bills, for the payment of $10 each; all of the said last named bank bills of the value of $140, and all of said several bank bills being of the value of $175, of…

Case. The plaintiff' declared that he was possessed of a horse, of the value of $200, and was riding him upon a bridge, which the town of Dover was bound to keep in repair, as a part of one of the streets in that town; that by reason of a defect in the covering of the bridge the horse fell through it, and was lamed, bruised, and greatly injured, and the plaintiff was then and there thrown with great violence upon the horse’s neck, and the plaintiff’s stomach was sprained,…

Trespass, for taking and carrying away the plaintiff’s cow, on the 5th day of June, 1845. The action was commenced before a justice of the peace, and carried up by appeal.

Assumpsit for money had and received, and for money paid. The plaintiff gave in evidence a hill of exchange drawn by him at Boston, Mass., where he resided, May 81, 1845, for $256.49, payable thirty days after sight, to the order of Messrs. J. W. Clark & Co., which was drawn upon the defendant, and directed to him at Lafayette, La., where he resided, and which was accepted'■by him June 11, 1845.

Assumpsit, each action founded upon a promissory note of the defendant, payable to one' W. W. Gould, or order, and by him indorsed. In the first case the note was also .signed by J. Dustin, who was a surety. Plea, in each, a discharge in bankruptcy. Replication, a new promise after the discharge.

Writ oe Entry, for one undivided seventh part of a tract of land and buildings thereon, situated in Portsmouth, in said county. The tenant pleaded mil disseizin.

Case, in the nature of an action of waste, brought by the reversioner of one eighth part of certain premises described in his writ, against the tenant for life.

Assumpsit, to recover $21.11,' due on an account annexed to the writ. The defendant pleaded in abatement that before the date of the writ, one Cheney sued out a writ against Haselton, the plaintiff, and this defendant, as trustee to an amount exceeding the sum demanded in this suit. The writ was returnable before William H. Rollins, a justice of the peace, on the 6th day of March next ensuing the service, and subsequent to the date of the present plaintiff’s writ.

<p>Where a deed was executed, handed to the register and recorded, without the knowledge or assent of the grantees, after which the grantor took and kept possession of it; — held, that in the absence of evidence that he intended this to constitute a delivery, it was not his deed.</p> <p>If security be taken for the indemnity of two co-sureties, one of them has no power to discharge it, against the interest of the other.</p>

Trespass, for taking the plaintiff’s goods in Dover, December 31, 1845. It was admitted that prior to September 20, 1845, the goods in question were the property of E. W. Hills, who lived in Portsmouth, and the plaintiff^ who is his nephew, managed business for him in Dover up to that time, and claimed the goods under an alleged sale by Hills to him, of that date.

Assumpsit, upon a note dated April 19, 1884, made payable by the defendant to the plaintiff, or order, with interest, for $67.50. There was also a count for money bad and received. The plaintiff offered the attorney who made the writ as a witness to prove that the note was lost, and to show its contents.

Writ op Entry. The sheriff was commanded by the writ to arrest the body of the defendant, or attach his property, and summon him, &c. The defendant was not arrested, but the officer returned that he had attached certain property of the defendant, and had given him a summons, &c. The defendant demurred, and assigned for causes of demurrer: (1) that in said writ the sheriff' or his deputy is commanded to arrest the body of the defendant; (2) the writ is a capias ; (3) that it…

Writ of Entry, to recover one undivided half of lot No. 9, in the ninth range, and on-e undivided half of lot No. 9, in the tenth range, in Whitefield. Plea, nul disseizin. At the trial the plaintiff offered in evidence a deed from one Cyrus Ingalls to Ashbel Cram, the plaintiff’s intestate, dated on the 27th day of May, 1837, conveying the demanded premises in fee and in mortgage. The witnesses to this deed were Frederick and John Perley.