Volume 19 — New Hampshire Reports

In equity. The bill stated the following case. Held: the heir in tail is absolutely in the power of his ancestor as much as the heir in fee simple. The heir- cannot take by descent when nothingjis in the ancestor, and he cannot take as purchaser contrary to the intent. . Altering settled rules concerning property is the most dangerous way of removing landmarks. Objection.

Petition for a certiorari. It was alleged that at the August term, 1843, of the court of common pleas for the county of Rockingham, a petition for a highway was presented to the court, which, at the August term, 1845, was referred to the road commissioners. At the February term, 1846, a report of the commissioners, laying out a highway according to the prayer of the petitioners in the town of Sandown, was returned and accepted.

Assumpsit, for money had and received. The writ is dated September 6th, 1847. This case was submitted to the court upon the following agreed statement of facts. Lydia Fogg of Kensington, widow of the late Jeremiah Fogg, died in February, 1847. Said Jeremiah Fogg was a major in the army of the Revolution, and died many years since.

Trespass, for an assault and false imprisonment. The plea was the general issue, with a brief statement that the defendant was collector of taxes for the town of Raymond, acting as such by virtue of a warrant dated on the 25th day of May, 1844, signed by Joseph Blake, Hazen Batehelder and Jeremiah Fullanton, jv., selectmen of the town of Raymond, under which he arrested the plaintiff, and held him until the payment of the tax therein named against him and the costs.

Debt. An action brought by the plaintiff against the defendant upon a promissory note for $148,11 and interest, was entered at the January term, 1826, of the court of common pleas. The officer’s return upon the writ was: “ Bockingham, ss. December 31,1825.

Petition, for the discontinuance of a road. This petition, for the discontinuance of part of. Rock Street, in the town of Portsmouth, was referred to the road commissioners, at the September term, 1847. The hearing was upon the 4th day of January, 1$48, and at the February term, 1848, the commissioners reported in favor of discontinuing the road. The report was signed by John Scammon, John Page and True F. Locke, as road commissioners.

<p>Trespass quare clausum.</p> <p>The acts complained of in the plaintiff’s declaration, were admitted to have been done, but the defendant claimed the locus in quo as his own soil and freehold. It appeared at the trial in the court below, that between the lands of the plaintiff and defendant a cove juts in from the Piscataqua river, a great part of which consists of flats, or is bare at low water. That the plaintiff’s farm lies upon the east side of the cove, and the defendant’s upon the west. It appeared, also, that a fence had been kept up upon the west side of the cove next the defendant’s land, for a long series of years, and the evidence tended to show that it had been nearly in the same place, but not permanent or stationary. The plaintiff offered evidence tending to show that this fence was built, and had been kept up as the dividing line between the farms, and that this was the true line as agreed upon by the parties who had a right to make such an agreement. The defendant offered evidence tending to show that the fence was put there for the convenience of the occupants of these adjoining farms, without intending to fix the boundary-line thereby. The locus in quo would fall to the plaintiff’s or defendant’s farm, according as this line should or should not be found to be the true boundary line.</p> <p>The plaintiff’s counsel requested the court to instruct the jury that the long occupation of the parties to that division fence raised a legal presumption that it was the true line. This instruction the court did not give, but charged the jury that the existence of the fence for the time it appeared to have been there, was a presumption in favor of its being the true line, and that the plaintiff had the benefit of that presumption, which they should consider in connexion with his other evidence tending to show the establishment of the line as contended for by him. But that if they believed, from the whole evidence, that the fence was built only for the convenience of the parties who put it there, without any intention of establishing the line between the farms, their verdict should be for the defendant; otherwise, for the plaintiff.</p> <p>The plaintiff objected to certain depositions being permitted to go to the jury, parts of them having been underscored by the defendant’s counsel to attract the attention of the jury. They were allowed to go to the jury, subject to the exception. The jury having returned a verdict for the defendant, the plaintiff’ moved to set aside the verdict and for a new trial. The questions arising on the motion were reserved for this court.</p>

Case, for the loss of a package of bonnets, which, it is alleged, the defendants undertook to carry for the plaintiff, for hire, from Dover to Great Falls.

Trover. The defendant pleaded the general issue, and filed a brief statement setting forth that the plaintiff was not administrator at the commencement of the suit, and other-matters of defence. The writ was dated March 3, 1846, and the suit was entered at the August term, 1846, of the court of common pleas, and continued from term to term to the January term, 1848.

<p>The clerk of a militia company may amend his return pending proceedings on a complaint in which such return is evidence, and in which he is a party; and upon a motion for that purpose, the court will read affidavits taken without notice.</p>

Foreign attachment. The supposed trustee disclosed that on the third day of March, 1846, he gave the principal defendant and John Sawyer, in payment for real estate purchased of them, three promissory notes, payable to them or their order, in one, two and three years, respectively, and amounting in all to the sum of seven hundred dollars; and that none of them had been paid.

Indictment for burglary. The indictment alleged that the prisoner, on the third day of September, 1846, about the hour of twelve in the night of that day, with force and arms broke and entered the store of one Joseph Merrill, and divers articles of the goods and chattels of one Charles Clarke and one Henry A. Osgood, in the shop aforesaid then and there being, then and there in the shop aforesaid, feloniously did steal, take and carry away.

Writ of entry to recover a tract of land in Haverhill, in this county. At the trial upon the general issue, the demandant claimed the land as one of the heirs at law of his grandfather, Joseph Flanders, deceased, who died leaving three heirs at law, of whom the demandant was one, and his sister Nancy, who married Arthur L. Pike, was another.

Assumpsit on a promissory note, dated October 23,1840, for $100,00, payable to the plaintiff, or order, on demand, with interest, jointly and severally, by the defendant and one Horace Eames. The writ was dated April 5, 1847, and the statute of limitations was pleaded. The note bore two indorsements; one dated in October, 1840, and one in the plaintiff’s hand-writing, dated September 10, 1842, of $10,00, as received of Horace Eames.

Trespass quare clausum. There was a new assignment, setting forth the close in which, &c., and the plea of the general issue, with a brief statement of various matters of defence. The plaintiff gave in evidence a deed of the close, in which, &c. from Daniel Blaisdell to himself, dated November 24th, 1832, acknowledged on the same day, and recorded June 20th, 1843.

Writ op entry upon a mortgage made by the defendant to one Horace Starkey, and by him assigned to the plaintiff.

Foreign Attachment. The trustee charges himself with avails of property sold, and other things, and with interest to January 1, 1848, to the amount, in all, of $399 35. The defendant was, at the time of the service of the writ upon the trustee, indebted to the trustee in a sum amounting, with interest to January 1, 1848, to $153 71.

Writ op entry sur disseizin, to recover possession of land in Loudon, in the county of Merrimack. Plea 1st. Nul disseizin. 2.

<p>Dower. The suit was for dower in certain land in Bradford. The demandant had, more than one month before the suit was brought, made her demand in writing, of the defendant, according to the provisions of ch. 205, sec. 2, of the Revised Statutes, therein describing the land precisely as afterward in her.writ. It appeared that of a portion of the land the defendant was never seized; that other parts of it had been conveyed to the defendant by Robert Fulton, the husband of the demandant, by deeds in which she joined, releasing her dower; but that Robert Fulton was seized, during the coverture, of the remainder of the land described, amounting to about forty-one acres, and that of this the defendant was seized at the time the demand was made.</p> <p>The question reserved for this court was whether, the demand being entire, for the dower in the whole parcel, the demandant could in that suit recover her dower in the forty-one acres.</p>

Bill in Equity. The bill alleged that the complainants, seventeen in number, were, on the first day of March, 1843, and still are, residents in school district No. eleven, in Goffstown, and liable to be assessed for all legal taxes in the district. That Shubael S. Jones, David Little and Alonzo F. Carr were duly appointed superintending school committee of said Goffstown, and served as such during the year commencing in March, 1843.

In equity. The bill alleges that upon the 30th of June, 1847, the Manchester and Lawrence Railroad was incorporated by the Legislature, with authority to build a railroad from the State line, in Salem, to any point on the Concord Railroad in Manchester and the intermediate towns.

Foreign Attachment. It appeared on the trial that Taylor had entered into a contract with the trustee, Barnes, for the erection and finishing of a dwelling-house in Manchester. This contract was made in writing, on the ninth day of December, 1845. On the 31st of that month, it was assigned by Taylor to one Ezekiel Abbott, who agreed to perform the same, Barnes agreeing to pay to Abbott what was then due, or might become due, whenever the contract should be fulfilled.

Assumpsit, brought to recover the sum of three hundred dollars, money had and received to the use of James Clark, the plaintiff’s intestate. The writ bears date August thirtieth, 1847, and the action was entered at the October term •of the court, and continued.

Assumpsit. The suit was for the price of a horse and harness, sold by the plaintiff to the defendant, in November, 1845. At the time of the sale, the property was subject to a mortgage, and was sold without the consent of the mortgagee. Such a sale was made illegal by ch. 132, § 8 of the H. S., and by §10 a penalty was imposed for it.

<p>Foreign Attachment. The plaintiff sought to charge the trustees in this case for personal property alleged to have come into their hands under color of a bill of sale, absolute in its terms, executed by the principal defendant, to the supposed trustees, November 28, 1845.</p> <p>The case was tried by the jury, and the plaintiff introduced evidence tending to show that the conveyance was made for an inadequate consideration, with the intent, on the part of the principal and trustees, of defrauding the creditors of the former. In the course of the trial, Nancy N. Mellen, wife of the principal, who had himself been examined, was offered as a witness for the plaintiff, and objection was made by the defendants, the trustees. She was admitted to testify, subject to the exception, and for this cause, among others, which are not here considered, the trustees moved for a new trial, a verdict having been rendered for the plaintiff.</p>

Trespass, for taking and driving away the plaintiff’s hog. The defendant pleaded the general issue, and a special plea that one John Holmes recovered a judgment before a justice of the peace having jurisdiction of the cause, for three dollars and twenty cents debt, and two dollars and twenty-five cents costs of suit, upon which execution was regularly issued, and placed in the hands of the defendant, a deputy sheriff, who by virtue thereof seized and sold the hog in due form…

Assumpsit on an account annexed to the writ. It was agreed by the parties in this case that after this suit was commenced, the defendant commenced a suit against the plaintiff in one of the courts of Vermont. The plaintiff filed, in offset to the suit in Vermont, all of the items embraced in this suit, excepting one for the sum of fifty cents, and succeeded in having a balance found in his favor in that suit.

The facts found and reported by the auditor, to whom the case was committed, as well as the reasons of appeal necessary to a proper understanding of it, appear in the opinion.

Petition for a mandamus. The petition states the following facts: The petitioners, Maurice Kimball, Stephen Greene and Ebenezer Lovering, representing themselves to be selectmen of the town of Kensington, allege that the last annual meeting of the town was held on the second Tuesday of March, 1848, and adjourned to the 16th of March. At the adjourned meeting, the petitioners were duly chosen selectmen. The whole number of votes cast for selectmen was sixty-eight.

Case. The plaintiff alleged that he was possessed of a certain dam at the outlet of Cobbett’s Pond, in Windham, and of the right and privilege of keeping up the same, and retaining and holding back the water in said pond, for the use and supply of his mills below, and that the defendants had dug certain ditches across and through the bank of the pond, and directed the water from the pond, and caused it to run to waste; and had also removed certain spilings, rocks, timber,…

Assumpsit, on a promissory note, made by the defendant and dated on the 28th day of August, 1847, for the sum of $80, payable to the plaintiff, on demand. The writ waa dated on the 9th day of December, 1847. Plea, the general issue, with a brief statement, alleging, among other things, that the note was given, and the contract forming its consideration made, on Sunday.

Trespass, quare clausum, for breaking and entering the plaintiff’s close, situated in Dover, in this county, containing fourteen acres, and cutting and carrying away a quantity of pine wood. The writ was dated January 1st, 1847. There was a second count in the writ, for taking and carrying away a quantity of pine wood.

Debt. The plaintiffs declared that Levi Towle, late of Epping, deceased, being seized in fee of certain lands described in the declaration, by his last will devised the same to the defendant and his heirs, he, the said Gardner Towle, paying the sum of one hundred dollars, as therein after named; that in and by said will the testator afterwards gave to his daughter, the said Pema Wilson, fifty dollars in money, to be paid by said Gardner.

Writ of error, brought to reverse a judgment of the court of common pleas in this county. John Hartigan and Patrick Hamley were indicted for assaulting Dennis Mahegan, on the 19th of December, 1847, and beating him with a gun barrel, so that he died on the 21st of the same month. Having been arraigned, and having severally pleaded not guilty, they were put upon their trial in the court of common pleas.

Assumpsit for supplies furnished to one Rebecca Sawyer, a pauper, alleged to have her. settlement in Franklin, by virtue of her marriage with one Edmund Sawyer, who, it was admitted, had his settlement in Franklin. The defendant resisted the claim, on the ground that the pauper had never been married to Edmund Sawyer, and was not his wife, and whether the parties were ever married was the only question in controversy.

Case, to recover the value of three calves of the plaintiff, killed on the 17th day of November, 1847, by the defendants5 cars, on that part of their railroad situate between Haile’s Point and Horse Shoe Pond, in said Concord. The writ contains three counts.

<p>If, in an action against a sheriff for the default of his deputy, the defendant is not so described, and the declaration does not allege that he is sheriff, the defect will not be aided by verdict.</p>

<p>Covenant. The defendant, by his deed, dated May 7, 1846, conveyed, in fee with covenants of seizin, title and warranty, to the plaintiff, certain land, the description of which was as follows : “ A certain tract or parcel of land, situate in said Marlow, and bounded, beginning at a stake and stones, at the south corner of Russell Tinker’s land and Curtis Bradford’s land, thence west by said Tinker’s land to a stake and stones: thence southerly by said Tinker’s land to a beech tree marked ; thence westerly by said Tinker’s land ; thence southerly by said Tinker’s land to a stake and stones on the line of John Stone’s land ; thence westerly to the line of Grurdon Smith’s land ; thence by said Smith’s land to the Aaron Huntley farm, so called, thence easterly by said Huntley farm to land owned by Gardner Huntley; thence by Gardner Huntley’s land to land owned by Albert H. Huntley; thence by said Albert H. Huntley’s land to Curtis Bradford’s land to a stake and stones; thence south by said Bradford’s land to the bound first mentioned, intending to convey the homestead farm of Asa Gee, late of said Marlow, deceased.”</p> <p>This description was correct, excepting that part in italics. In fact, the Asa Gee farm and the Aaron Huntley farm were nowhere coterminous; the most easterly boundary between Aaron and Gardner Huntley being eleven rods and a half west of that part of the Asa Gee farm abutting upon Gardner Huntley’s land, as will appear by the plan, upon which the continuous lines show the boundaries of the Asa Gee farm, and the dotted lines the lands belonging to the different adjoining proprietors mentioned in the deed. The irregular piece, partially surrounded by the Asa Gee and Aaron Huntley farms, the angles of which are marked B. C. D. E. F. G. H.; a. never belonged to the defendant.</p> <p>The plaintiff offered evidence, at the trial, that at the time the bargain was made for the land, the parties were upon it, and that the defendant pointed out to'the plaintiff the line at the northern extremity of Albert H. Huntley’s land as his line, and the point marked a., on the Aaron</p> <p>Huntley as the northwestern boundary of his farm. This evidence was rejected, and the court ruled that the deed conveyed the Asa Gee farm only, and that there was no such ambiguity in the description as would permit the introduction of parol evidence of its meaning. A verdict for the defendant was accordingly returned by consent, and exceptions taken to the ruling.</p> <p> </p> <p>Tappan and Pierce, for the plaintiff, contended that the land within the line B. C. D. E. F. G. H. K. a., is included in the description. The question was whether the particular description, by metes and bounds, or the general clause describing the land conveyed as the “ farm of Asa Gee,” should prevail. The defendant does not undertake to convey the farm of Asa Gee, however it may be bounded, but the farm of Asa Gee, described and bounded in a particular manner. The particular description must guide, although some doubt rests upon it, if its meaning can be ascertained. Tenny v. Beard, 5 N. H. Rep. 58; Lyman v. Loomis, 5 N. H. Rep. 410; Worthingtons, Ex'rs. v. Hylyer, 4 Mass. Rep. 205.</p> <p>Was there, then, enough in the description to ascertain the land ? The boundary “ by said Smith’s land to the Aaron Huntley farm, thence easterly by said Aaron Huntley to land owned by Gardner Huntley,” means and requires the extension of the line A. B. to a., where it strikes Aaron Huntley’s boundary, and whence it can go easterly to Gardner Huntley’s land. Such a line answers the description; but if you follow the zigzag line B. c. D. and e., you do not touch the Aaron Huntley farm at all, and cannot go easterly by it to Gardner Huntley’s land. The piece which we claim to be included in the deed is, as accurately as the Asa Gee farm, described as “ bounded by Gurdon Smith’s land.”</p> <p>The parol evidence was offered not to vary or contradict the deed, but to show a practical construction by the parties themselves, when on the premises. Stone v. Clark, 1 Met. 378.</p> <p>If the description is ambiguous or doubtful, parol evidence of the practical construction given by the parties, by acts of occupancy, recognition of boundaries or otherwise, is admissible in aid of the interpretation. 1 Greenl. Ev. (5th ed.) § 301, note 2, and authorities there cited.</p> <p>The identical monument or boundary, referred to in a deed, is always a subject of parol evidence, and, when disputed, is always left to the jury to say which was the actual monument intended. Claremont v. Carleton, 2 N. H. Rep. 373.</p> <p>Here is a latent ambiguity in the words “ by land of Gurdon Smith both lines contended for are by land of Gurdon Smith, and the real line intended is a question of fact which parol evidence is competent to show.</p>

Assumpsit. The case was referred to an auditor, who reported, in substance, that on the 9th of April, A. D. 1846, the plaintiff, Marshall Latón, was a minor of the age of eighteen years. His father had previously deceased, and his mother resided in the State of New York.

Debt. There were four several actions. Each was to recover a penalty of twelve dollars, for not erecting and keeping in repair a suitable guide-post or guide-board from the 4th of November, 1844, to and including the 4th of November, 1845, in a place indicated in the writ. The suits were commenced and served at the same time, and are for the neglect at different intersections of roads.

Trespass, for breaking and entering the plaintiff’s close, on the 7th of July, 1846, in Danbury, in said county, “ containing ten acres, known as the Kidder lot, being a part of lot No. 70, in the second division of lots in said Danbury,” and cutting and carrying away a quantity of grass, &c. It appeared in evidence that the trespass complained of was committed on a piece of land containing from five to eight acres, known by the name of the “ store lot,” situated on the east…

Complaint, by the plaintiff, as clerk of the ninth company of infantry in the fifth regiment of New Hampshire militia, being the company in Brookline, to collect a fine of the defendant, alleged to be a private in said company, for. his non-appearance at a company training on the nineteenth of May, A. D. 1846. • The plaintiff gave in evidence a warrant to himself as first sergeant of the company, dated April 30, 1846, signed by the captain, and ^ countersigned by the…

Trespass, for breaking and entering the plaintiff’s close, and cutting and carrying away his trees. Plea, the general issue. The plaintiff’s right to recover depended upon the construction of the defendant’s deed, which was the earliest title shown to the disputed premises.

Assumpsit. The writ contained two counts, one for money had and received, to the amount of $150; the other on an account annexed to the writ, as follows: “ David Young to James McQuesten, Dr. 1847. April 9. To amount due on account,.......$75.” In his specification of claims filed, the plaintiff set forth “ a receipt, dated April 10, 1841, as follows: ‘ Received of James McQuesten eighty-five dollars, to be accounted for on settlement,” and signed by said Daniel Young.

Writ of entry, in which the plaintiff claims 150 acres of land in Nottingham, upon his own seizin, &e. The case was tried upon the general… Held: that although a grant of land by parol is void by the statute, still, when accompanied by an actual entry and possession, it manifests the intent of the donee to enter and take as owner, and not as tenant; and it equally proves an admission on the part of the donor that the possession is so taken, and that such a possession is…

Debt on a judgment. The plaintiffs, John Baker, 2d, and Nathaniel Baker, on the fourth Tuesday of March, 1845, recovered judgment against Nathaniel A. Davis and Benjamin Wadleigh, the defendants, for the sum of $386,34, debt, and $15,25 costs, amounting in the whole to $401,59.

Assumpsit. The'declaration alleged that on the twenty-first of April, 1847, the defendants were common carriers of goods for hire from Andover, Mass., to Exeter; that the plaintiff delivered to them an overcoat to be carried from Andover to Exeter, and delivered to the plaintiff for a reasonable reward to be paid therefor, in consideration of which the defendants received the coat and undertook to transport and deliver it accordingly, which they have neglected and refused to…

Petition for leave to discontinue a highway. From the report of the commissioners, it appeared that upon notice to the parties interested, they entered upon the discharge of their duties on the twenty-first day of November, 1848. Upon proceeding to examine the highway, the counsel for the parties opposing the discontinuance, submitted a motion to adjourn the proceeding, for the reason that the ground was frozen and covered with snow.

Trespass, brought against the defendant for taking and converting to his own use a stock of bonnets, ribbons, &e., the property of the plaintiff.

Petition to the court of common pleas for an increase of damages awarded by the selectmen in laying out a highway in North Hampton, in this county.

Debt. The case came up from the court of common pleas, upon the following statement of facts and agreement of the parties. This action was debt to recover fifty dollars, that being the amount of damages awarded to the plaintiff by the road commissioners for the county of Rockingham, for land of the plaintiff, taken in laying out a highway in Hampstead.

Assumpsit, for goods sold and delivered. The action had been referred to an auditor, who had notified and heard the parties, and made a report, and was afterwards tried upon the general issue.

At the trial in the court below, one of the jurors, the son of another appellant, upon examination as to his impartiality, denied that he was sensible of any bias in the case; but it appeared to the court that he had strong feelings in relation to the case, and he was excluded.

Foreign Attachment. The trustee having discharged himself upon disclosure in this case, the plaintiffs elected a trial by the jury, and the following issue was made: “ And said plaintiffs say that the said Janvrin is chargeable as trustee of the said Hezekiah Smith, and this they are ready to verify, wherefore they pray judgment, &c. “ And the said George Janvrin says that the plaintiffs, their action aforesaid against him as trustee of said Smith, ought not to have or…

Assumpsit. The defendant pleaded arbitrament and award,pius darrien continuance.

Assumpsit. The writ in this action was made and dated October 3, 1848, and bore teste of Joel Parker, Esquire, who had then resigned. An attachment of the defendant’s goods was made on the same day. A second attachment was put on the same goods by one Treadwell, another creditor of the defendant, who afterwards appeared in the case, for the purpose, and moved that the plaintiff’s writ be quashed.

Petition for the discontinuance of a road. The town of Barrington, by their petition, set forth that the town had voted to discontinue the road, laid out in that town, by the road commissioners, in 1847, upon the petition of Francis Winkley and others, and prayed the consent of the court to such discontinuance.

In Equity. The bill stated the following ease : On the 24th day of October, 1842, William P. Hardy owned a tract of land situated in Concord, and described in the bill.

Trover, for a pair of oxen. It appeared that the plaintiff purchased the oxen of the defendant for sixty dollars, and gave his promissory note for them ; that at the time of the bargain the plaintiff wished the defendant to keep the cattle until the following Saturday, the bargain being made on Thursday. It appeared, also, that at the time of the trade the defendant gave to the plaintiff some brass knobs, which it was said the cattle wore on their horns.

<p>A note given for the purchase of spirituous liquors, the sale of which is by law prohibited under a penalty, is good in the hands of an indorsee, for valne, without notice of the consideration, and before due.</p>

Case. The writ in this case contained two counts. Held: that the owner of the bullock was not liable. The drover had a distinct employment, and the boy was his servant. We say that in the case at bar, the business of a contractor or builder of railroads is a distinct employment, and that the injury complained of by the plaintiff was done by their servants.

Petition, for a new highway in Gilsum and Alstead. This petition was referred to the road commissioners, who duly notified the towns and other parties interested, of a time and place of hearing, in January, 1848, when the towns and other parties attended, but only one of the commissioners was present.

Trespass, for bréaking and entering the plaintiff’s close, in Swanzey, and cutting trees, &e. The defendant pleaded the general issue, with a brief statement that the premises were his soil and freehold.

Writ of Entry. The plaintiffs counted upon a mortgage made April 10, 1821, by the defendant, to secure the payment of a note for $1150, to one Alexander Pickens, and by him assigned, on the 5th day of April, 1826, for value, to one Nathaniel Cowes, who for a like consideration, on the 21st of December, 1828, assigned the same to James H. Bingham, who likewise assigned it, on the 21st of December, 1839, to Austin Tyler, Timothy Eastman and Ormond Dutton, who assigned it to…

Foreign Attachment. The trustee disclosed that he had received of the heirs of Bartlett Clement the sum of two thousand one hundred and eighty-seven dollars and fifty cents, and given an obligation in the following words : ‘e Know all men by these presents, that whereas, in and by the last will and testament of Bartlett Clement, late of Claremont, deceased, the said Bartlett Clement gave and devised the use and income of his farm, situated in said Claremont, to his wife,…

Assumpsit, on a promissory note, signed “ Stevens, Walker & Co.” Plea, the general issue. It was admitted that Ebenezer Stevens, one of the defendants, signed the name of Stevens, Walker & Co. to the note; that there was at the time a firm known by that name, and that all the defendants were members of it, with the exception of John Muzzey of Portland, Maine, who was sued as one of the partners.

Case, for that the defendants, from Oct. 1,1840, to the date of the writ, Oct. 21, 1846, “ maintained, kept up and continued a mill-dam in Danbury, across Bog brook,” and by means thereof caused the plaintiff’s land to be overflowed, &c. The case was tried upon the general issue.

Assumpsit, to recover the balance of a promissory note made by the defendant, dated December 29,1845, for fifty-two dollars and eighty-four cents, payable to the plaintiff or bearer, on demand with interest, on which was indorsed, February 17, 1846, thirteen dollars.

Trespass for breaking and entering the plaintiff’s close, situated in Hill, in this county. It appeared in evidence that the plaintiff lived in a house upon the premises described in his writ, which was dated September 29th, 1848, and the trespass was alleged to have been committed by carrying away hay, &c., on the 20th of August, 1848.

Trespass, for breaking and entering the plaintiff’s close, in Whitefield, being lot 8 in range 8, on December 1,1845, and on divers other… Held: even in a case where the holder-of the equity had paid off the mortgage, and it was formally cancelled, together with the notes secured, that the law would treat it as an assignment of the mortgage, if necessary to protect the party against an intervening claim, and this, too, notwithstanding the intention was to extinguish the…

Assumpsit. The case was referred to three auditors, from whose report the following facts appeared.

Information, in the nature of quo warranto, alleging that the Wilton Railroad Company, for the space of six months past, without any grant., warrant or charter, have used the authority and power to construct and finally complete for public use and keep in use a railroad from West Merrimack. to Danforth’s Corner, in Amherst, which liberty, i privilege and franchise the company, during all the time aforesaid, have usurped, and still do usurp, upon the government of the State,…

Assumpsit. The writ contained three counts. One, on an account annexed for dry goods, to the amount of $627,24. One for goods sold and delivered, and the third for money had and received. The defence was that the goods were purchased on a credit of six months, and that the suit was prematurely brought. It appeared that six months had not elapsed between the purchase of the goods and the date of the writ, and that the sale was not what was termed a cash sale.

Assumpsit, for goods sold and delivered. The defence was, as to the first parcel, that they were not sold, but merely consigned to the defendant for sale; and as to the other parcels, that they were sold on a credit of six months, which had not expired when this action was commenced.

Foreign Attachment. The case was committed to an auditor, from whose report it appeared that, in the year 1837, the defendant was appointed a deputy sheriff for the county of Hillsborough, and that the trustee became his surety on a bond to the sheriff of the county. In the year 1841, the defendant absconded, and at that time he held several notes of hand, payable to himself, and signed by the trustee.

Petition of Merrimack for reimbursement of the amount expended by said town for the relief of six minors, the legitimate children of Jeremiah F. Harwood, and his wife, Asenath Harwood, persons residing in said town, and standing in need of relief, and applying for the same, and whom the petitioners allege to be county paupers.

Petition for a mandamus. The following facts appeared in the case: On the thirtieth of March, 1849, the petitioners were-chosen the prudential committee of district No. 3 in Pelham. At a meeting of the district, held on the twelfth of May, 1849, the district voted to adopt the act entitled “ An act relating to school district No. 3 in Somersworth,” whereby all the authority given to district No. 3 in Somersworth, was vested in this district.

Assumpsit on a promissory note. The action was committed to an auditor, who reported the following statement of the accounts between the parties. The, plaintiff brings his suit on a note signed by Smith & Tenney, dated June 17, 1846, for the sum of $25, payable, to Robert Hardy, or order, on demand, and interest, and indorsed by said Hardy.

Assumesit, upon the following contract: “ Whereas we, the subscribers, now owe the town of Manchester, by certain notes, made payable to Ephraim Stevens, j‘r., as treasurer and agent of the town of Manchester, and whereas the said Stevens has been called upon by the selectmen of said Manchester to collect and pay over to the town the amount of our said notes, and in case he shall neglect to collect and pay over forthwith, the bond of the said Stevens given to the town as…

Trespass, for an assault and battery. Plea, the general issue. The plaintiff offered evidence tending to show that the battery complained of was committed as alleged in his writ.

Assumpsit. The writ was dated February 26th, 1847, and contained one count, which was for money had and received. The specification under the count was of a promissory note, as follows: $1,200. Manchester, N. H., August 24th, 1846.

Trover, for a horse, which it appeared was the plaintiff’s, and came into the defendant’s possession by virtue of the following written contract: “ Deering, September 8,1847. “ This certifies that I have this day delivered to Joseph Putnam a sorrel mare, to secure to him the payment of twenty-five dollars, which I owe him.

Assumpsit, on a promissory note, dated March 11,1841, signed by Jason Ripley and the defendant, for the payment of two hundred and forty-four dollars and forty-nine cents, payable to David W. Grimes,… Held: with James Butler, a mortgage of a house at Hillsborough, and one in Hopkinton, to secure the note ; and told him that if he would sign the note with Ripley he would transfer his interest in the security he held to him, Robbins, whenever the note was paid.

Foreign Attachment. It appeared from the disclosure of the trustee that the principal defendant, on the 16th of April, 1846, conveyed a parcel of land, with the buildings thereon, to John C. Pillsbury and Stephen Pillsbury in mortgage, to secure the payment of two promissory notes for $500 each; that Stephen Pillsbury assigned to John C. Pillsbury his interest in the mortgage Nov. 18, 1846, and that John C. Pillsbury assigned the mortgage to the trustee on the 13th of April,…

Assumpsit. On the 16th day of May, 1846, the defendants made with the plaintiffs a contract of insurance upon the plaintiffs’ meeting house, for the sum of $3000, and for the term of five years. The policy recited that the building was then insured “ in a company in Concord,” for $2500. It also recited that the contract was made subject to all the liabilities, provisions and conditions mentioned in the defendants’ act of incorporation.