Volume 2 — New Hampshire Reports

A plea of nut disseisin impliedly admits that the tenant is in possession of tile premises. If not in possession, he should disclaim or plead non tenure ; or if in possession, claiming less than a freehold, he should plead non tenure special.— The description of the premises, as “ a store,” bounded, &c. is sufficient. — [#em-ble.) The title of the demandant cannot he aided by deeds executed to him from third persons after the commencement of his action.

If a mortgage of personal property be void, because fraudulent against creditors, the original debt may still be recovered. Possession bjr the mortgagee of personal property is not necessary to the validity of the mortgage, as it is to the validity of a pawn. The equity of redemption in a mortgage of personal property is not subject to attachment.

. . . The title and' disposition of property, given for pious uses, is not regulated by any statute of this State. J After a grant of land to a town for the use of the ministry, if the town be divided, and such land fall within, the boundaries of the'tiew town, the title tt> the land still remains in the old town.

The legislature have power to permit a turnpike corporation to lay out their road upon an ancient highway. If an act to that effect he passed by the legislature, and the turnpike corporation accept the grant, and build their road without any material deviations from the bed of the ancient highway, the town, in which the highway was, ceases to be liable for the repairs of any part of it.

If an agreement be made by bond to submit all demands to arbitration, and only-part of those existing between the parties are laid before the referees, an action lies for a breach of the agreement But the award on such demands as were actually laid before them is binding, and in a subsequent action at law for those not laid before them, the award is rtót a conclusive bar to a recovery. This was assumpsit on an account annexed.

Where a town owns a lot of land, and, by vote, .assents to a proposed exchange of it, tiie title to the land does not thereby pass, nor is the town afterwards estopped to claim the title.

An action is “ pending” after it is entered. An action is commenced after the writ is served, however it may be after the. writ is sued out. An action pending is not discontinued, till the agreement to discontinue be entered on the record ; and when entered, the discontinuance does not relate back to the date of the agreement.

A replevin hond is valid, though made payable to the sheriff, his representatives and assigns.

Asy interest on money loaned, was, at common law, unlawful. But that principle of the common law is not applicable to our state of society; and, by any part of the common law in force here, no rate of interest is unlawful, unless so great as to become unconscionable.

A parol assignment of dower was valid at common law, even without livery of seisin. But such an assignment must be accepted by the widow, or it does not bind her. Our statute on the assignment of dower, introduces no new form of assignment. Whether a new one is made necessary by the statute of frauds ? qu. This was a writ of dower, to which the tenant pleaded, that within thirty days after demanded, he had assigned to the widow her dower in the premises to her satisfaction.

A negotiable note, executed by an infant, is not void so as to be incapable of ratification after the infant becomes of age. A re-promise.. hy.jin infant is valic^thoughjaot made till after the commencement of a suit against him.

A widow is entitled to dower in lands of which her husband was seized during coverture, if the lands were at that time “in a state of cultivation,” though yielding no net income. Lands must he considered “ in a state of cultivation,” when they are not in their original state of nature, or, after being cleared and worked, have not reverted to a similar state.

As a general principle, the vendee of personal property, the title to which fails, may recover back the consideration which was paid for it. Bat if there had been a former recover}7 against him of the consideration, the money, thus paid under a judgment, cannot be recovered back by assumpsit for money had and received.

Mere naked possession, without some kind of property, will not enable a person to maintain trover. ‘To constitute a valid attachment of personal estate, it must be taken into the possession, or be placed under the control of the officer. While such an attachment subsists, the property cannot be duly attached by another officer; but a second attachment should, in sueh case, be made by the first officer.

An administratrix may sustain a writ of entry to foreclose a mortgage to her intes* ‘W hen writings are offered as evidence of a mortgage, the question whether they amount to a mortgage or an absolute conveyance, must be settled on common law principles, A wmitig of defeazance, never delivered to the grantor in a deed, but deposited with a third person tobe delivered on a condition, which the grantor never performed, does not. render the deed a mortgage. special non est…

When no place is mentioned for the performance of an obligation, it must, as a general principle, be performed to the ohligee in person. But if the things to be delivered arc cumbersome, or the nature of the contract indicates a particular place of performance, this general principle does not apply.

If a sheriff, by mistake, sell the personal property of A. on an execution against B., which property had been consigned to B., and Users return the execution satisfied to the amount of the sale, B. is still a competent witness for A. in an action against the sheriff. The return of a sheriff, when erroneous by mistake, may, in certain cases, be amended or vacated, and in some cases may be contradicted.

Where a deputy sheriff attached property upon two writs, in favor of the same creditor, returning one attachment as subject, the other, and, after judgment recovered, was sued by the creditor for not… Held: that the deputy sheriff was not answerable for such part of the property as did not in fact belong to the debtor, nor for such part as was by law exempt from attachment, unless the owners consented to the attachment of it.

A person cannot be charged as a trustee on account of a supposed u debt,” if the debt be contingent. Nor can he be charged on account of “ goods,” &c. in his hands, unless they are subject to attachment or are so situated, that an action would lie for them ia favor of the principal.

Where a submission is made to arbitrators by a written agreement, a surety in the agreement need not be notified of the sitting of the arbitrators. The owners of land, over which a highway is contemplated, have a right to object to the acceptance of the report of a committee laying it out; and a forbearance of this right by them is a good consideration fora promise.

<p>The return of a warrant constitutes a part of the warning out of a pauper.</p> <p>Where a law was repealed before the warrant was returned, or the year’s residence completed, which was necessary to gain a settlement, the warning out was held to be valid, if conformable to the aew laws though it was defective under the old law.</p> <p>A general law, whose operations may change the existing settlements of paupers* is not unconstitutional.</p> <p>This was assumpsit for relief furnished to Clarissa Hall.</p> <p>It was admitted, that on the 8th of June, A. D. 1792, the father of the pauper had his settlement in Exeter. At that time, he and his family removed to Stratham, from which town, on the 2d of July, A. D. 1792, they were warned to depart, by a warrant, dated June 2d, 1792, and returned in ’March, A. D. 1793, but in which was no mention of the time they had resided in Stratham.</p> <p>They returned to Exeter in September, 1794; but acquired no new settlement after their return.</p> <p>Upon these facts, the parties agreed, that a verdict for a stipulated sum should be entered for the plaintiffs, or a general verdict for the defendants, as tie court on consideration might think proper.</p>

Under our statute of February 9th, 1791. a town is Hable to a penalty, if it neglect either to build or keep in repair a pound sufficient to confine cattle. A penal statute should not be construed with such strictness as to defeat what was probably the intention of the makers of it, but which the language used might otherwise not be thought to embrace.

<p>Where assumpsit is brought on a promise to pay money, whenever judgment shall be recovered by the plaintiff in an action then pending against a third person, the declaration is sufficiently specific, if it describe the consideration of the promise to have been a return to that third person of property to a certain amount, which had been attached in that action.</p> <p>The declaration need not enumerate eaoh article returned ; nor need it contain an express averment that the claim in that action was just, or that the writ issued from a particular court, if it allege, that judgment was afterwards recovered upon itbv the plaintiff in a particular court to which the writ was made returnable.</p> <p>Nor is it necessary, in such case, that the declaration should set out the judgment “ as of record,” or allege notice of it to the present defendant, or state the purpose, to which the money, now sought to be recovered, is intended to be appropriated.</p> <p>This was an action of assumpsit.</p> <p>The declaration alleged, that on the 18th of February, 1812, the “ shop-goods and household furniture” of one Robert Holmes, to the value of $188 25, were, by a writ of attachment against him in favor of the present plaintiff, returnable at the court of common pleas in this county, September term, 1812, seized to respond the judgment which might be obtained against said Robert; that on the 13th of April, A. D. 1812, the present defendant, in consideration that the plaintiff would re-deliver to said Robert the goods aforesaid, promised the plaintiff to return to him the same goods on demand, or pay him, when he should obtain judgment in said action the sum off 188 25 ; that the plaintiff thereupon re-delivered said goods to said Robert and discharged his attachment upon them ; that the action against said Robert was prosecuted and judgment recovered against him, February term, 1814, for the sum of $308 88, of which $8168 still remains unsatisfied, and that the defendant, though particularly requested on the 21st of March, A. D. 1818, had never paid said sum.</p> <p>To this declaration the defendant filed a special demurrer for the following causes.</p> <p>1st. That the description of the property attached was not sufficiently specific.</p> <p>2d. That the court, from which the writ of attachment issued, was not particularized,</p> <p>3d. That the claim against Robert Holmes is not alleged to have been a just debt.</p> <p>4th. That the judgment against him is not set out as of record.</p> <p>5th. That no demand is alleged.</p> <p>6th. That no notice of the judgment to the present defendant is alleged.</p> <p>7th. That it is not alleged, that the sum now sought to be recovered will be applied to the discharge of the judgment against Robert Holmes.</p>

Where judgment has been rendered for the demandant in a writ of entry, he is, in an action for mesne profits, entitled to recover something, if any profits have been received by the tenant within the iast six years- But such judgment, when offered in evidence, proves only title in the plaintiff and occupation by the defendant since the date of the writ of entry ; so that a longer occupation and the actual profits received must be otherwise proved.

Where the condition of a deed has been broken, the estate is not forfeited, unless tiie grantor re-enter : or, if already in possession, claim to retain, it for condition broken- This claim may consist of acts,or of words, or of both ; but must amount to distinct notice of an intent not to waive the forfeiture. What acts rebut such an intent. This was a writ of entry.

In references under a rule from a justice of the peace, if all the arbitrators attend the hearing, hut only a majority ©f them sign the award, the award is binding. When such rule is returned to the justice he has authority either to accept or reject the award. If he rejects it, without assigning on the record a sufficient cause, the proceedings by the justice are not void, till quashed or reversed. The reme* dy in such case is not by mandamus.

Though in debt on bond, the issue of non est factum is found for the plaintiff, yet, if from other pleadings it appears that the condition of the bond has been fulfilled, the defendant is entitled to judgment. Under a submission of “ all demands,” the parties and referees may ©r may not investigate and settle the damages, which will afterwards probably accrue on an indemnifying bond.

When a pauper has ones acquired a settlement in this state, it is not lost by gaining another settlement in another state. An agreement, made by the selectmen of a town before an action is commenced against the town for relief furnished to a pauper, by which they engaged to waive the legal notice required by statute of the charges, &c., does not, at the trial of the action, bar the town from objecting to the want of notice in due form.

Trespass and case are sometimes concurrent remedies; and though the latter would be moie proper under certain circumstances, yet the former remedy, if attempted, is to be supported wherever a tort has bften committed on property, in which the plaintiff has an interest and possession actual of constructive.

In the return of a writ by which land has been attached, the description of the land is sufficient, if by such a description the land would pass in a deed. But in an extent, the description of the land set off must be more partisular.

After an attachment of property, if the sheriff deliver it to a third person onhis receipt to account for the same, and the engagement is not fulfilled, the sheriff ought, in an action upon the receipt, to take judgment for the full value of the property. If the property has not been returned to the debtor, and the sheriff takes judgment for less than its value, he is liable to the debtor in a special action on the case for the deficiency.

When a debtor owns in land, set off under an extent, a less interest than thru which was appraised and returned, all the interest, which he actually owned will pass to the creditor.

If a sheriff permit a prisoner to have liberty of the yard on a bond for a less amount than “ double the sum for which such prisoner was imprisoned,” the bond is still binding upon the obligors, but is no defence to an action against the sheriff for an escape.* A party cannot justify under a statute, unless he pursues the forms prescribed by the statute.

The holder of a promissory note cannot recover against an endorser, though it he negotiated long after due, unless he pro^e some demand on the maker, and notice to the endorser. What demand and notice is necessary in such cases ? qu. This was assumpsit on a promissory note from M. H. to the defendant, or order, dated February 25, 1811, and payable in one year.

Courts lean against the rejection of testimony for slight variances from the declaration. Though declarations fora false affirmation and declarations on express contracts must be special, they need not contain the precise words used in the affirmation or contract, unless they purport to contain them.

If a lease contain a condition for the re-entry of the lessor on non-payment of rent; and, after a formal re-entry for non-payment, the rent in arrear is paid and accepted, the forfeiture is waived. yVhether rent, when secured by note, must he demanded on the land, before the lessor can re-enter for its non-payment ? gu.

A writ of error does not lie upon process before the court of common pleas, to procure an abatement of taxes under the statute of Feb. B, 1791. The court will not quash proceedings upon a writ of error. Thís was a writ of error brought to reverse certain proceedings of the court of common pleas in this county, in which the said court, had upon the petition of the defendant in error, made an abatement in certain taxes assessed upon him, by the town of Durham.

<p>(1)1 N. H. Rep. 39, Lund v. Lund.</p> <p>(2) 1 N. H. Rep. 167, Marsh & wife vs. Rice.</p>

in an action of debt upon a judgment, upon which payments have been made, interest is to be cast upon the judgment in the same manner as upon a note of hand, which has been in part paid. This was an action of debt upon a judgment rendered by this court, at November term, 1815, in this county, for $28G debt, and $66 89 costs of suit.

A. made a note payable to B., or order, at a future day, and under the note at agreement was written and signed by A, and B., that A should do certain acts by such future day, which acts being done, B. to relinquish all claims upon the note; and the paper containing the note and agreement was lodged in the hands of C., who, in case A. failed to do the acts by the time stipulated, was to deliver the note to B., and A. having failed to do the acts, C. separated the note from…

The execution of a deed by femes covert, unless they are joined in it by their hus* bands, also, is not binding, except the deed be a release of dower. The declaration on a deed of covenant, thus executed by some of the covenantors, is good, though it omit to count against those femes covert as defendants. Á clear general description of the premises in a deed, is not controlled by any subsequent expression of doubtful import in respect to any particular.

Pleading ovei cures no defects, except those which would be bad only on special demurrer. Duplicity is such an one, hut a departure is not. Awards are to be construed liberally. Though their language may embrace more than what was submitted, they will be construed not in fact to embrace more, unless it is ex* pressly shown, that more was laid before the referees and decided.

Where a deputy of the sheriff attached goods on a writ hi favor of A. against B and afterwards neglected to deliver them, when legally demanded, to satisfy the… Held: that the sheriff was liable for this negf'Ct of his deputy, although at the time it happened, neither he nor th® deputy were in office. This was an action of the case against the defendant, late sheriff of this county, for the default of one Samuel G. Davis, who liad been his deputy. It was submitted to the

Where a testator gave to bis executors a certain sum in trust, that they should vest it in some secure property, and pay toe inter? si accruing upon it to his daughters, A. and J3., in equal shares… Held: that when one of the daughters became a widow, she was entitled only to one half the sum allotted to her and her children.

In an action of assumpsit by A. against B. on a promise by B. to save A. harm* less for selling, as a constable, a horse upon an execution in invor of B. against C. againstall persons having a belter claim to the horse sitan C the record of judgment against A. in favor of D. in an action of trespass for taking and selling the horse, of' which anion B had no notice, was held not to be evidence, that &. hada better title to the hone than C. This was an action of assumpsit.,…

In assumpsit on an account annexed for liquor sold by retail to a ” townsman,” though the defendant plead the general issue ; yet the plaintiff cannot, under our statute of June 14th, 1791, recover more than twenty shillings. An item, also, “ for rent,” without some description of the premises and the length of the occupation, cannot be recovered.

If a conveyance of land refer for its bounds íes to monuments not actually existing at the time, and the parties afterwards deliberately erect the monuments, they will be bound by them in the same manner as if erected before the conveyance- This was a writ of entry, in which the demandant counted upon his own seisin within twenty years and upon a dissei-sin by the tenant.

An action of the case may be maintained against the selectmen of a town for laying out a highway merely for the purpose of enabling passengers to evade the payment of toll at a turnpike gate.

The election of a person to an office constitutes the essence of his appointment but the office cannot be considered as actually filled, till his acceptance either express or implied. When once filled, the office, till the term of it expires, cannot be deemed vacant except by the death, resignation, or removal of the incumbent. The selectmen of a town cannot fill a vacancy in the office of collector, unless the town itself, on previous application, has refused to fill it.

Error lies upon a judgment rendered under the statute of June 21, 1797, author-king justices of the peace to make an agreement between parties to refer their demands, The statute limiting the bringing of writs of error to three years where judgments have been rendered in any real or personal action, extends to judgments rendered on the report of referees made in pursuance of the statute of June 21, 1797, although the latter was passed posterior to the former, ^ This is a…

The endorser of a note of hand is a competent witness to prove the note paid before he endorsed it. When a note has once been paid, it ceases to be negotiable. This was an action of assumpsit upon a note of hand made by the now wife of Ritterbush, when sole, and by one Samuel Roby, dated February 22, 1812, for $100, payable in three years, with interest annually, to Ezra Baldwin, and by him endorsed to the plaintiff.

In an action of assumpsit against an executor or administrator, “ never promised within six years,” Is a good plea, if the testator or intestate at the time of his decease was liable, and the action commenced within two years from his decease, that matter should be replied to tire plea. This was an action of assumpsit. The first count was upon a note dated Feb. 26, 1810, for $98, payable by the defendant’s intestate to the plaintiff on demand,with interest.

The last clause m the third section of the statute of Feb. 11, 1791, oniy authorizes a reference before the judge of probate where the dispute is respecting a claim upon an insolvent estate, which has been allowed or rejected by the commissioners. And no appeal lies from a decree of the judge of probate accepting the report of referees in such a case.

If an Administrator or guardian sell* under license, an estate, which belongs to their intestate or ward, and became the purchasers themselves, the sale is not fox 'that cause void. But, if the sale was unfaithful, or the price inadequate, they may be made to answer for the true fame of the estate, when they render an account in the probate office, or by an action upon their bonds.

The jurisdiction of the superior court to affirm, judgments of inferior courts, from which an appeal has been claimed,but not prosecuted.is confined to cases where an appeal has been lawfully claimed. This was a complaint filed by Robbins vs. Appleby, for not entering in this court an appeal claimed by the latter from a judgment of the court of common pleas in this county, rendered at Sept, term, 1819, in favor of Robbins, for $30 debt or damages, and % costs of suit.

A. an administratrix, having obtained license to sell the real estate of her intestate, whose estate had been represented insolvent, employed B. as her agent to sell the real estate at auction ; the lands were sold for less than their value, and B. had become interested in the purchase ; it was held that A. was chargeable in the settlement of the account of hex administration with the full value of the land.

The statute of limitations as to reviews stops at the time the writ is sued out. The date and not the service of the writ is prima facie evidence of the trua time when it was sued out. But this prima fade evidence may be rebutted, and the true time shown by parol testimony. Under our practice, the true time, when a writ is sued out, or an action commenced, is the time when the writ is, in fact, filled up with the declaration in order to have it served upon the opposite party.

A parol promise to fulfil an award, whether made before or after the award, binds the parties. If the parties agree, that the arbitrators shall write a promissory note for the amount of the award, without disclosing the amount ; and after an award is agreed on, and such a note written, if the party liable proceed to sign it, still in ignorance of the amount, the note is, notwithstanding, valid.

<p>(1) 1 N. H. Laws 259-</p> <p>(1) 2 Burrows \ win. Bl.</p> <p>(2) 5 mass. Rep 420.</p>

An officer is not liable to a penalty for taking fees, on account of services, for which no fees are enumerated in the fee bill. But where he takes excessive fees for such services, he is liable to refund the excess in an action for money had and received. A penalty is incurred only when he takes more than the prescribed amount for particular services, for which fees are given in the fee bill.

The acts of May f, 1719, and January 16,1771, require, that the doings of selectmen et ai. in warning out persons from a town, should be returned to the court of quarter sessions within one year from the time such persons came to reside in such town.

A representative in the state legislature is a “ state officer.” If, at a bailotting for such representative, the check, fist be not used, the person, who puts in more than one vote at one and the same bailotting, incurs no penalty.

Where a town is indebted te several individuals, and the debts are due, and of such a character that they should be paid, the town is liable to a selectman, who discharges them in behalf of the town. - If part of them are due to one selectman, and he pays the residue to the other creditors, and receives a negotiable note from the two remaining selectmen to the amount of all the debts, which note one of the two afterwards pays, that one may recover the amount from the town in…

A deefl, which describes the premises as “ a certain part of a stream of water,” and mentions the two termini of the rt part,” was held to pass a right to use the whole water which flows between those termini. Whether all the interest in the soil beneath the water passes for every purpose, or only so far as is necessary for a due enjoyment of the water, yet the interest is of such a character, that it cannot be conveyed witiiout a deed duly executed , and recorded.

When a marriage takes place between a female pauper of one town and a male pauper of another town, the settlement of the female is changed to the latter town, if the paupers entered into the marriage contract without force, fraud, bribery, or any undue influence on the part of the former town.

Marriage is ir> this state only a civil contract; and the object of having it solemnized before some officer, is to give it publicity, and to preserve a record of the contract. If this contract be made between, adults, per verba de presentí-, and without fraud or force,no solemnization whatever is, upon general principles, necessary to its validity.

<p>Where a testator gave to one of his sons “ $150, one-third payable in one, one-third •' m *\¾and one-third ia three years after his decease,to he paid at the rate of ** and in proportion to likely six feet oxen at $50 per yoke,” it was held to be agilt of the rakte of a yoke of oxen at the respective times when the payments were to he made ; and such oxen being, at the time the first payment became doe, worth $70fh was held that the legatee was entitled to that sum.</p> <p>This was an action of assumpsit, brought to recover a legacy given to the plaintiff in the will of his father, Oliver Morrill.</p> <p>The cause was submitted to the decision of the court upon a statement of facts agreed to by the parties, in substance as follows. Oliver Morrill, the father of these parties, made his will, whereby, among other things, he bequeathed to the plaintiff $150; one-third part to be paid in one, one-third part in two, and one-third part in three years after his death; “ to be paid at the rate of and in proportion to likely six feet “ oxen, at $50 per yoke and appointed the defendant his executor. The said Oliver died in June, 1817, and the defendant caused the said will to be duly approved and allowed, and took upon himself the burthen of executing the same. And there is in the hands of the defendant, as executor. sufficient personal estate to pay all debts and legacies.</p> <p>In June, 1818, when one-third of the said legacy became due, the plaintiff demanded the same of the defendant. Such oxen as are mentioned in the will were, at the lime of the said demand, and also at the time of making the will, and still are worth $70 per yoke. The plaintiff demanded the delivery of such a yoke of oxen, or the payment of their value, to wit, $70. The defendant tendered $50 in satisfaction of said third part of said legacy, and now brings the same sum into court, an 1 offers it to the plaintiff, but lie refuses to accept it. And it was agreed by the parties, that if the court should bo of opinion that the plaintiff was entitled to recover more tfcar. ,rm $50, ⅛-n the defendant to be defaulted, otherwise the ukmtiffdo become nonsuit.</p>

In an action of assumpsit against two, one of the defendants, who has been defaulted, is not a competent witness for the other. This was an action of assumpsit upon a promissory note, made by the defendants, and payable to one Benjamin Pillsbury, and by him endorsed to the plaintiff. Nelson was defaulted. Cammett pleaded the general issue, upon which, the cause was tried at September term, 1819.

Whet© there existed in a town only one right of land belonging to a person hy the name of Ray ; and that right was sold for taxes under the description of both the Christian and the Christopher Ray right, but wax described in the eosYer-anee as the right which had been owned hy Christopher Ray, when in fact the former owner was Christian Ray, the title was still held to pass.

Jt. corve ved fo B, by deed “a certain piece of land, the whole of lot No. *• exet-pr 50 acres deeded to S. P the lot to contain 200 acres by measure, be-vidi This was an action of covenant broken.

la an action of assumpsit, although the breach of the promise is a misfeasance injurious to the plaintiff, j^et a consideration for the promise must be alleged in the declaration, and must be proved as alleged. This was a writ of error to the court of common pleas in this county.

<p>¿I an inhabitant of this state gave a negociable note to B. an inhabitant of Massa* chusetts, who, having made his will and appointed C. his executor, died • C. having proved the will in a probate court of Massachusetts, and there taken upon himself the burthen of executing the will, by endorsement ordered the contents of the note to be paid to D. who brought an action upon the note against A, here : it was held that 0. the executor had no interest in the note and could not transfer it by endorsement, and that the endorsee could maintain no aGtion upon it</p> <p>This was an action of assumpsit upon a note of hand made by Wilson, dated January 24, 1816, for $400, payable to Hough Clark or order on demand, and endorsed to the plaintiff by Benjamin Humphreys, the executor of the last wili of Clark, who is deceased.</p> <p>The cause was submitted to the decision of the court upon a statement of facts as follows. Hough Clark was an inhabitant of Massachusetts, where the note was made ; and where, having made his will, and appointed Humphreys his executor, he died. Humphreys caused the will to be proved and allowed in a probate court of Massachusetts, and took upon himself the burthen of executing it. The note came into the hands of Humphreys,?l% executor, and he after-wards, by endorsement, ordered the contents of it to be paid to the plaintiff. Clark’s will has never been filed and recorded, nor has administration of his estate been granted to any person in this state. The parties agreed that if upon these facts, the court should be of opinion, that the plaintiff could maintain the action, then the defendant to be defaulted, otherwise the plaintiff to become nonsuit.</p>

A sheriff, who arrests upon an execution a person privileged from arrest, and vole untarily lets him go at large, is not liable for an escape. This was a writ of error to the court of common pleas in this county.

A person who was chosen surveyor of highways by a town and accepted the office, but before the expiration of the year for which he was chosen, removed to another town, was field not to gain a settlement thereby in the town where he was chosen surveyor. This was an action of assumpsit for the support of one Oliver Parker, a pauper, alleged to have his legal settlement in Lyndeborough. The cause was submitted to the decision of the court upon the following facts.

In an action of assumpsit upon a note of hand, what is proper matter of set-off prast be determined by the laws of the state where the action is brought, and not by the laws af the stats where the note was made.

A mere seizure of property on execution does not divest the title of the judgment debtor. When such seizure is made of sufficient property to satisfy an execution against one joint and several debtor, arid the property is before sale returned by agreement of the parties, this constitutes no bar to a recovery against the other debtor. This was an action of assumpsit on a receipt, made jointly and severally by the defendant and Robert Turner, for fifteen tons of hay.

A. having given B. several notes of hand, and conveyed to him his farm in mortgage secure the payment of them, afterwards conveyed the same farm to C. absolutely ; and 0. having paid to B. the amount of the notes, and taken an assignment o/ rhe n.ougxae, brought a suit in B.'s name against JL upon the norf\.. H was held that the notes must be considered as paid, and that no suit could ne maintained upon them against A. This was an action of assumpsit.

When a creditor causes his execution to be extended upon the lands of his debtor, and the appraisers in valuing the lands, by mistake, estimate them at less than their value, the debtor has no remedy to correct the mistake, but by redeeming the lands. This vías assumpsit for $200, money had and received, and for $200, money paid, laid out and expended. The cause was submitted to the decision of the court upon the following facts.

In a conveyance of land, when the deed refers to monuments actually erected by the parties as the boundaries thereof, the land will pass according to the monuments, however the distance between, them may be mistaken in the deed. This was an actiou_of covenant broken.

A prisoner made application in writing to two justices of the quorum to he discharged from prison upon taking the poor debtor’s oath, and the justices, on the hack of the application, made an order appointing a time and place of hearing and directing notice to be given to the creditor — a copy of the application and order delivered to the creditor’s attorney, was held to be sufficient notice, although the person who attested and delivered the copy was not an officer.

In debt «pon a bond with condition for the payment of money on a particular day, the defendant alleged in his plea that he paid the money at the day, but in bis rejoinder he alleged that he paid the money after the day, and that it was accepted in full satisfaction : this was held to be a departure. Departure in pleading is matter of substance.

Where the selectmen of a town laid out a highway, and drew up and signed an account of their doings and lodged it with the town clerk — it was held that such account found on the files of the town, but not otherwise recorded, was sufficient evidence of the laying out of the highway. This was an action of trespass quare clausum fregit, in which the pleadings ended in an issue whether the locus in quo was a public highway. The cause was tried here at May term, 1820.

Where plaintiffs sue as a corporation, and the general Issue is pleaded, they may still be required to prove their incorporation. A power of attorney, unless to convey real estate, need not be acknowledged or recorded. A jury may from slight circumstances presume, that a proprietary meeting was duly convened, when the intervening lapse of time has been twenty years.

<p>In an action against a sheriff for a false return, the particular damage resulting to the plaintiff from the falsity of the return must be alleged In the declaration 5 and the want of such allegation is not aided by a verdict, but judgment must be arrested.</p> <p>This was an action of the case. The plaintiff alleged in his declaration, that J. Kimball and D. Tewksbury, by the consideration of the justices of the court of common pleas in this county, holden on the first Tuesday of September, 1814, recovered judgment against the plaintiff for $367 46 damage,and $9 16 costs of suit, as by the record, &c. and that said K. $• T. on the 19th September, 1814, sued out-execution in due form of law, directed &c., and among other things commanding that of the goods, chattels, or lands &c. and returnable to said court on the last Tuesday of February,1815 ; andón the 7th October 1814,the said K. $r T. delivered the same writ of execution to the defendant, then, and long afterwards a deputy sheriff under T. A, Edson, sheriff, &c. to be executed ; and on the same day the said Daniel B. extended the said execution upon a tract of land of said Sawyer, lying m Grafton and bounded, &c., and thereafterwards the said D. B. Whittier, wickedly intending to injure and defraud the plaintiff, made return of said execution to said court of common pleas on the last Tuesday of February, 1815, with a false return of his doings therein endorsed on said execution in the words and figures' following, viz., &c. The whole return was set out, and among others’contained these words ; “ Samuel Gile was ap- “ pointed and chosen appraiser by the said Sawyer, the debt- “ or.” It was then averred that in truth and in fact, he the said Sawyer did not choose or appoint the said Samuel Gile an appraiser, as the said Daniel B. in his return of his doings on said writ has alleged, but tbe said Daniel falsely made the said return, that the said Samuel Gile was appointed and chosen an appraiser by the said Sawyer, which is to the damage, &c.</p> <p>The cause was tried here at May term, 1819, on the general issue, and a verdict returned for the plaintiff with $150 damages.</p>

To constitute a valid attachment of personal property, the officer must nave all the articles within his power. But he need not touch all the articles, if he have the pow^r to tmrh ams control all,and is engaged in making the seizure of all.

In trover there must be evidence of actual possession by the plaintiff, or the right to actual possession at the time of the conversion. Where evidence is offered of a conversion at different times, if the plaintiff had a right to the possession at either of those times, it is sufficient.

When the ad damnum in a writ is left blank, the defect is not cured by a verdict in favor of the plaintiff. Where the court has general jurisdiction of a cause, and a verdict is found for more than the sum demanded, a remittitur may be entered as to the excess, and judgment taken for the residue, or the verdict may be set aside, and leave then given to amend.

When judgment is rendered by consent in one county as of a prior term in another county, a writ of review of such judgment must be brought within one year from the last day of such prior term, otherwise it is barred by the statute of 1818, cap. 78, sec. 3.- In this stale tne intendment of law is, that judgment is entered on the last day of the term, unless judgment appears by the record to have been entered on a different day.

A. loaned B. $500 upon a usurious contract. After the money had been loaned several years, the interest was cast at 12 per cent, and added to the principal, and $200 in cash was paid, and the residue of the principal and interest, cast as aforesaid was paid in negotiable notes of a third person. It was held that the illegal interest might be recovered back by B> in an action for money had and received.

If an endorser of a note, who has not had regular notice of the non-payment by the maker,- does, with a full know)edge of the fact, make a subsequent promise to pay, it is a waiver of the want of due notice. This was an action of assumpsit against Kenney, as endorser oí a note of hand made by Hazen Lawrence, dated March 14, 1816, for $40, payable to Kenney or order in sixty days with interest, and by him endorsed to the plaintiff.

An execution issuing against the goods and estate of a person deceased in the hands of his executor ox administrator, may be extended upon lands which were of the deceased. This was a writ of entry, brought to recover a tract of land in New-Market, in this county, in which the demandants counted upon their own seisin within twenty years, and upon a desseisin by the tenant. The cause was tried here at February term, 182©, upon the general issue.

A scire facias against bail, which contains no allegation that nótica was giren t» the bail, as required by the statute of 1818, cap. 35, is bad on demurrer.

This was an action of trover. la the course of the trial here, February, 1819, on the general issue, certain depositions were introduced on the part of the plaintiff, which had been taken before a magistrate by the name of Martin. A verdict being found for the plaintiff, a motion was made by the defendant for a new trial, on the ground that Martin, who took the depositions, was also foreman of the petit jury to whom the cause was submi'red.

A promise is not void for want of consideration, if, in consequence of the promise, the promisee incurs a liability to a third person. In such case it is immaterial whether the person who made the promise, or he on whose behalf it was made, were either of them previously subject to any action in favor of the promisee. Such promise, being original and not collateral to any precedent debt of the person in whose behalf it was made, is not within the statute of frauds.

In ibis state debt does not lie upon a bail bond. Held: &c. to B. Pierce, Esq., sher- “ iff of said county of Hillsborough, in the sum of $20, &c. “ Given under our hands and seals this 22dday of February, “ 1810.” They also craved oyer of the condition, which was as follows : “ The condition of this obligation is such, “ that if F. B., now in Amherst jail, on a writ in favor of “ Charles…

A. having certain securities in his hands, promised B. that whenever B. should procure and offer reasonable and satisfactory bonds for the support of the parents of A.… Held: that the bond, if executed and delivered, would not have been performance of the condition precedent. It was also held, that if the bond had been such as the contract required, B. must have been considered as having done all he was under the circumstances bound to do towards performing the condition.

When lands are described in a deed as bounded on a river, the centre of the stream is to be considered as the houndary. If an island be situated in the river, and is nearest that bank where the premises lie, it nasses to the grantee. Parol declarations of former owners of the premises are incompetent to contradict this construction of the deed.

Where an estate had been represented as insolvent, and the judge of probate liad by decree ordered the administrator to pay a certain sum to a creditor, whose claim bad been allowed by the commissioners, the administrator was adjudged to be chargeable as the trustee of the creditor.

All distinct allegations in pleadings, not denied nor answered, are admitted, íf a voluntary escape he permitted on execution by the sheriff, the creditor can still cause the debtor to he retaken on an alias execution; his property to be seized or an action of debt to be brought oa the judgment. But the sheriff has no such power; unless by consent of the creditor. That consent may be by parol and by the creditor’s attorney.

Where, by an actof incorporation, the shares are subject only to a sale for delinquencies; and where the original members signed a written obligation to pay . all assessments on their shares, it was held that no action lies on such promise, if, before the assessments sued for, tire member, bonafide and for a valuable consideration, sold out Ids shares, though he afterwards bought in the same shares* and after his re-purchase the assessments were made.

For what defects irt a declaration judgment must b« arrested, and what defects - ■ are cured hy a verdict* This was an action of assumpsit.

An action of covenant for rent does not lie against one in possession of land without some privity of contract. But the evidence to charge one as assignee in such action may be presumptive and consist of acts and admissions without any express indenture. An estate for years may be set off by appraisers upon an execution. The occupant of land is bound by the admissions of the person, under whom he entered, made before his entry.

The warrant from selectmen to a surveyor of highways to collect highway taxes, need not be under seal. - . The return of a surveyor of highways upon his warrant of his doings is not competent evidence to be offered by him to a jury to prove the facts stated in the return. This was an action of trespass for taking two steers of the plaintiff and converting them to the defendant’s own use.

Of the liability of towas for injuries resulting from defects in roads and bridges.

<p>A guardian can maintain no action against bis ward for money advanced, or services rendered as guardian to the ward, until he has settled his guardianship ac« count in the probate court.</p> <p>Assumpsit for monies expended, services done, and supplies and clothing furnished for the defendant, according to an account annexed to the writ.</p> <p>The cause was submitted to the decision of the court upon a statement of facts, in substance as follows ;</p> <p>In 18 J 5, the plaintiff was chosen bj the defendant, then just arrived at the age of 14 years, her guardian, and was appointed her guardian bj the judge of probate, in this county. In 1819, this guardianship was repealed, at the instance of the defendant, by the same judge of probate. The plaintiff never returned any inventory of any estate of his ward, no estate of any kind ever having come into his possession. Nor has he ever settled, or been cited to settle, any account of his guardianship in the probate court; This action was brought to recover the monies expended, and for services performed, while the plaintiff was guardian and the defendant his ward as aforesaid.</p>

In an action of assumpsit against two defendants, a count upon a promise made by the two only, may be joined with counts upon promises made by the two defendants and a third person deceased. Assumpsit. The three first counts were founded upon promises alleged to have been made by the defendants jointly with one William S. Them, deceased. The fourth count was upon a promise alleged to have been made by the defendants alone.

in case for slander, wnere there ate several count*, upon which the jury assess entire damages, if any one of thc*e counts he bad. mftenrera must lie arrested. Tfce word*, u you havt ftchn a fiU of bVU onirf my desk, with n inuendo, that by “jilt of bills''’ v,ras intended u a fie of ? rsotisfed accounts,” are not actionable. ■ ■■ Case for slander.

<p>A person, who has only a ri"ht m equity to re'íí^tn land in the town where he. dutdK cannot g,ain a set) kan cm in the town by paying o'1 t'oo taxes assessed, upon his poll and estate lor the term oi four years, unless his right in equity to redeem be o* the value ot $150.</p> <p>Assumpsit for the su] port of a pauper, alleged to have a settlement in Sutton.</p> <p>The cause was tried here at April term, 1821, upon the general issue, when it appeared in evidence, that the pauper removed to Sutton in the year 1810 ; that he resided there until the year 1816, paying all taxes assessed upon his poll and estate ; that at the time of his removal to Sutton, he was seized of an undivided moiety of a tract of land in Sutton, the value of the whole of which tract was ff 50 ; and that on the 30th September, 1813, the pauper and Ms co-tenant conveyed the land in fee and in mortgage to secure the payment of $700, no part of which has ever been paid.</p> <p>A v erdict was taken for the defendants, subject to the opinion of the court upon the foregoing case.</p>

A conveyance of land without consideration, is not void as to creditors, if after-wards, without notice and for a valuable consideration, the land pass into the hands of a bona Jide purchaser. Land may pass by force of the word “ quit in a deed. How far husband and wife must join in a deed to pass their respective interests in her land.

Á seal was not essential to the validity of a warrant directing a constable to warn a person to depart from a town in order to prevent a settlement under the statute of February 15, 1791, sec. 7. And if such warrant was signed by the town clerk, by order of the selectmen, it was sufficient. Assumpsit for the expense of supporting one James Bolster, a pauper, alleged bj the plaintiff to have his settlement in Temple.

Where judgment was rendered in an action of trover in favor of the plaintiff, who died immediately after judgment, it was held that, notwithstanding the plaintiff’s death, the action was subject to a review by the defendant, who was at liberty to sue out a writ of review against the plaintiff’s administratrix within a year after the plaintiff's death.

Where an estate has been represented insolvent, and the administrator appeals from a decision of the commissioners allowing the claim of a creditor, if a less sum is allowed the creditor in this court than was allowed by the commissioners, the administrator is entitled to costs. In this case, the commissioners appointed by the judge of probate to examine the claims against the estate of E. .

In an action between the endorsee and the maker of a note, if it appear that the endorsee is a b&najide holder of the note without notice, the maker cannot be permitted to setup usury as a defence. Assumpsit upon a note of hand for $200, made by the defendant and payable to John Young, and by him endorsed to the plaintiff. The cause was tried here at May term, 1821, upon the general issue.

Repelvin cannot be maintained against a sheriff for property by him taken on execution from the possession of the judgment debtor. This was replevin for a mare, waggon and harness. The cause was submitted to the decision of the court upon the following facts.

A. gives B. a note of hand, and afterwards C. signed an agreement on the back of the note as follows, “ I guarantee the payment Of the contents of the within, “ note to B., the one half within six… Held: that this was a sufficient memorandum of the agreement within the statute of frauds. Assumpsit. B. Stevens and M. Hall gave the plaintiff a note of hand in the following words : “ Ryegate, August 28, 1818.

<p>In a writ of entry, when the tenant pleads the general issue, as to an undivided part of the demanded premises, and as to the residue undivided disclaims, and the demandant replies to the disclaimer, that the tenant entered into the part disclaimed, &c., upon which issue is joined; if the jury find the issue upon the plea of disclaimer, in favor of the demandant, he will be entitled to costs.</p> <p>This was a writ of entry, in which the demandants counted upon their seisin of lot No. 4, in the eighth range of lots in Concord, in this county.</p> <p>The tenant pleaded as to sixty-nine undivided parts of the said lot, into seventy parts divided, that he «never disseized ; andas to one-seventieth part, he disclaimed.</p> <p>The demandants joined the general issue, and as to the part disclaimed they replied, that at the time of the commencement of the action, the tenant held, and since hath held the same part of the demanded premises in manner and form as by their said writ is supposed, and this they prayed might be inquired of by the country, and the tenant did the like.</p> <p>The cause was tried here at November term, 1819, when the jury found by their verdict, “ that the said Thomas, at the time of the commencement of this suit, did hold, and since hath held, the said seventieth part of said demanded premises in manner and form as the demandants in their replication have alleged, and as to the residue that the said Thomas did not disseize in manner and form,” &c.; and the question was, whether the demandants were entitled to costs.</p>

In an action apon a contract to deliver t’,i ] 'fi'rüü' » »piT/Wt} of‘t^ves upon a certain turnpike road, one half in t.v> o n'-'ii'k, o’ gi n-iii h-d. and six months, if called for ; — it was held to h to tii n a iLul tin- ile'uuk ut } b tutí stavc-s ready on the turnpike, at the time mt.lu'btii tillin’ ccidiut t. it not appearing that the defendant had been ieipn to h..\e them ready utthose times.

In an action to recover a demand wtíici) has accrued to an administrator since ⅛⅜ decease of his intestate, the defendant cannot set off debts due to him from the intestate in his life time. Assumpsit for money paid, laid out and expended. The cause was tried litre at November term, 1820, upon the general issue, with notice of a set-off.

Whore two magistrates Hinder the acts for the relief of poor debtors discharge a prisoner in execution, their certificate that the creditor has been duly notified»..is not conclusive evidence that, the creditor has had notice. An order of the magistrates in such case upon the creditor to shew cause, left at a house where the creditor had once lived, hut from which he had removed to an-otiter place in this stale, is not a sufficient notice.

When a submission to arbitrators by a rale before a j«slice of the peace describes the subject matter as “ a controversy under two hundred dollars,” without any farther specification, it is void for uncertainty. But the statute, which empowers justices of the peace to make rales and render judgment on reports in such submissions, is not unconstitutional. This was a writ of error, brought to reverse a judgment rendered upon a report of referees by a justice of the peace.

Jl. was sued upon a note of hand and pleaded the statute of limitations. It was proved that he made the no*c and that the same had been presented to him within six years, when he said, -‘that he did not recollect giving the note, but if he c* did, he would pay it, its being outlawed should make no odds this was held sufficient to take the case out of the statute. Assumpsit upon a note, dated December 22, 1809, for §25 39, payable to the plaintiff on demand with interest.

Where A. conveys land to B. with a covenant of warranty, and B. conveys the sanie.land to C. with a covenant of warranty,a release by C. o£A,'s covenant, i« hi law a release of B.'s covenant, and such release makes A, a competent, witness for V, in a writ of entry, brought by the latter to recover the land. This was a writ of entry, in which the demandant counted upon his own seisin of one acre of land in Dover, in this county, and upon a disseisin by the tenant.

A submission of all demands does not embrace demands which ame between the saiinissioa and the time of the award. IVher3 a gr'ss sum is awarded, and it appear that the award was founded in part upon matters not submitted, the whole award will be held void. Debt on a bond, dated January 13, 1819.

Trespass on the case lies in favor of the reversioner against a stranger for cutting trees on the land. A tenant for life may cut trees for ñrewood and for fencing, but cannot sell wood to pay for fencing the land. . - This was an action on the case in the nature of waste.

<p>(l) Yeiv. 52 Wood vs. Harboum.</p>

If an idiot be under guardianship, a suit may be instituted by the guardian in the name of his ward, without any mention of the guardian; and the suit will he sustained, unless advantage be taken of the defect before pleading the general issue.

An action lies to recover a legacy charged upon land. In this case, it appeared from the answer of the trustee, that one Mary Bennett, on the 2d January, 1818, made her will, which contained the following clauses : “ 1 give, be- “ queath and devise to my son, John Bennett., fifty dollars, “ to be paid him by my grandson, Joseph Piper, out of the “ estate I hereinafter give him,” , “ I give, bequeath and devise to my grandson, Joseph “ Piper, all the rest, residue or…

It is not essential to the validity of a deed in this state, that the subscribing witnesses he competent to prove its execution at the time when they put their names to it as witnesses.

Nontenure is in this state a plea in abatement and not ⅛ bar. This was a writ of entry. The tenant pleaded nontenure special in bar of the action. To this plea the demandant demurred, and the tenant joined in demurrer. cited Clark vs. Goodwin, 14 Mass. Rep. 239. — 2 Saund. 44, note 4. — 13 Mass. Rep. 439, Prescott vs. Hutchinson. cited Parker vs. Murphy, 12 Mass. Rep. 485. — Keith vs. Swan, 11 ditto 216,-Booth 28. —Rastall's Entries 225, 381, 404, 539.

A. and B. haying a controversy respecting certain accounts between them, agreed to refer the same to arbitrators; C. appeared before the arbitrators at the hearing as B.’s agent, and assisted in… Held: that C. was not estopped by the judgment to shew that there was nothing due from B. to A. This was a writ of entry, in which Thrasher demanded a farm in Deerfield, in this county, and counted upon his own seisin within twenty years, and upon a disseisin by the tenant.

A note payable to M. F. or enter, cannot be sued in the name of an endorsee, unless negotiated by the same M. F., who was intended to be the payee. Whore no particular person of that name was intended to be the payee, or had any interest in the note, the name of the payee is to be regarded as fictitious.

A judgment in favor of one joint and several promiser is no bar to an action against another promiser, unless it- appear that the judgment w.as founded on a satisfaction or discharge of the contract.

Where it appeal s by necessary implication from the terms of the condition of a mongage, rhet the understanding of the parties must have been, that the mortgager should remain in possession of the land, the mortgagee cannot maintain a. writ of entry to recover the land, until the condition be broken, or waste be This was a writ of entry, and was tried here at October term, 1821, and a verdict taken for the tenant, subject to the opinion of the court upon the following case :…

Where A. haying leased lands to B. at an annual rent, and before any rent became due, conveyed the reversion to C., who conveyed the same to É. ; it was held, that the rent passed as incident to the… Held: that the rent passed as incident to the reversion, and became extinct. Üpon a general demurrer, it is no objection to a plea, that it amounts to the general issue. This was an action of debt.

<p>(1) 12 Joh», 183.</p>

Where A. conveyed to B. a tract of land in fee and in mortgage, and afterward» in consideration that O agreed to pay and discharge the same mortgage, conveyed to C. a parcel of the same land, with a… Held: that as between A. and C. the mortgage was not to be considered as an incumbrance within the meaning of the covenant. This was an action of covenant broken.

A. died seized in fee of land, which had descended to him from his father, leaving uncles and aunts on his father’s and on bis mother’s side, who were the next of kin, and also children of a deceased aunt — It was held that the land descended in equal shares to the uncles and aunts on both sides, but nothing descended to the children of the deceased aunt This was a petition for partition of certain real estate, in •which the petitioner alleged that he was seized of two…

Assumpsit does not lie to recover back money paid for the release of goods illegally taken by virtue of a warrant of distress. This was an action of assumpsit for $4 34 money had and received by the defendant for the use of the plaintiff.

Two pleas are not admissible to the same action, if they are of a like import, or present issues, that must he tried by different courts. Nor will they be admitted, if one expressly admits what the other denies, unless they both appear necessary to the merits of the defence. The rules as to double pleading in our courts are derived from the English practice under the statute of Anne. This was an action of debt upon a judgment.

Itis a good canse of abating a writ, that it was served by an arrest of the defendant’s body on a day when he was by statute exempted from arrest. This was an action of assumpsit.

When a town relieves a pauper belonging to another town, in order to make the town to which the pauper belongs liable, notice of the sums expended must be given within ninety days from the time when the relief mentioned ia the no-toe was afforded. Assumpsit for money expended in the support of several paupers alleged to have their settlement in the town of Al-lenstown.

A deputy sheriff; who has arrested a person upon mesne process, may, ⅛ this state» become the bail of such person.

<p>Where after a cause had been opened to the jury, one of the parties made to a ijuror out of court statements favorable to his own side of the cause, and the ‘jury afterwards returned a verdict in his favor, a new trial was granted.</p> <p>Trespass for taking a horse, which had been taken by the defendant, a deputy sheriff, upon an execution against on© Ephraim Plumer, as Plumer’s property; and the question was, whether the plaintiff had bona fide purchased the horse of Plumer before the taking by the defendant. The cause was tried here at February term, 1822, and was opened to the jury and part of the evidence laid before them in the forenoon of the day of trial; the court then adjourned, and the cause was finished in the afternoon, and the jury, having returned a verdict for the plaintiff, the defendant moved for a new trial on the ground, that the plaintiff had misbehaved with one of the jury while the cause was before them. .</p> <p>It appeared from the affidavits read by the defendant, that between the sittings of the court, on the day of the trial, the plaintiff entered into a conversation with one of the jury respecting the cause, and told the juror, “ that he purchased “ the horse as fairly as he ever purchased any thing in his “ life; that the taking the horse was of great damage to him, “ for he could have turned him towards land for sixty dollars.”</p>

It is not a good plea in bar to an action against an executor or administrator, that the action was commenced within a year after proving the will or taking letters of administration; but such matter should be pleaded in abatement. It is not a good plea in bar that the defendant is administrator, and not executor.

When an action is brought against an executor deson tort, if the estate with which ho bas intermeddled be insolvent, it is no defence that he has paid debts to . double toe amount of the assets by him received. Assumpsit against the defendant, as executor of Lois Ra-ker. deceased. The cause was submitted to the decision of the court upon the following case : Zw»> Po\er died on 1st January, 1820, intestate.

Where A. gaye a note payable to JB. aad C., and B. haying died, C. received the contr-nts of the note, in an action by B.'s administrator against C. to recover one hrdf Use money; it was held, that… Held: that C. could not set off claims which he had Rgfñrst- £hV escale. When (wo in the cciirss aí business receive a note payable to them, jointly, and one dies, the odiev shail roc have ihc whole by survivorship.

Persons, whose names are alleged to have been forged to a bank bill, are now corn» petent witnesses to prove that fact, though the rule was once otherwise. But to prove that fact it is not necessary to call either them or those who have seen them write; perspm? are competent to prove it, who have before seen genuine bills of the same bank and are skilful in the detection of counterfeit money.

When a rule for a reference is by agreement taken from a justice, returnable i?> him, it is sufficiently certain, if the subject matter r4 the controversy he specified, and its amount. The lime for the return of such a rule may when recommitted be enlarged. When all the referees meet under such a. rule, a renort by a majority of them is binding.

When a claim against an insolvent estate is secured by a mortgage of land, the commissioners should allow the whole claim, and not deduct first the value of the land, and allow only the residue of the claim. This was an appeal from the report of the commissioners, on the estate of Henry A. Runlet, deceased and insolvent. The claim of the plaintiff was founded on a note from said Henry to Teresa Orne, for $3184 78, secured by a mortgage of real estate.

In an action of trespass for false imprisonment, brought by A. against j?., B* pleaded that he sued out a writ of capias returnable to this court, and declared against A. in debt upon a judgment for damages, and $5 costs, rendered by a justice of the peace, by virtue of which writ he caused A. to be arrested. A. replied, that the judgment was founded upon a contract, made after Jan. f, 1819, fora less sum than $13,33. To this there was a demurrer.

Where in the extent of an execution upon real estate, the appraisers certifiedora the execution, that they “ set off the land in full satisfaction of the execution 44 with officer’s fees… Held: that nothing passed by the extent. This was a writ of entry, in which the demandants counted upon their own seisin of three parcels of land in New-Market. The cause was tried here at September term, 1821, upon the general issue, and a verdict taken for the demandants, subject to the

A testator among other descendants left seven grand-children, the children of a deceased son ⅞ in his will, he mentioned two of these grand-children, and also their father ; it was held that the presumption of law was, the other five grandchildren were not omitted through forgetfulness.

Selectmen may grant a license to keep tavern for any term less than a year. Selectmen have no authority to license a shop keeper to keep tavern in his shop. A license to keep tavern in a particular house wii) not render legal a sale of spirit at any other place, than the house and its appendages, unless it be to persons who are guests at the tavern.

livery person who sells spirits by retail without license is liable to the penalty in. the first section of the act regulating licensed houses, whether such person sells on his own account oras the agent of another. Debt for a penalty alleged to' have been incurred by the defendant at Chester, March 10, 1818, by selling ardent Spirit By retail without license.

Where A. sold to B. several bags of hops, and gave a bill of parcels, stating th# number of bags, the weight, price, &c.> with these words, tl the… Held: that A, was not precluded by the bill of parcels frora-shewing, that the hops were warranted, only in case they were carried by B. to a particular place. Case for a false warranty of certain hops sold by the defendant to the plaintiff, December 15, 1818. The cause was tried here at October term, 1821rupon the general issue.

Where A. conveyed a tract of land to B. m 1805, and m 1810, A. being still living, his wife by a separate deed released her right of dower in the land, it was held that the wife was estopped by the deed from demanding her dower after A.'s death. This was a writ of dower. The tenant pleaded in bar a release by deed made by the demandant of her right of dower in the demanded premises.

Where in the grant of a township, there was a lot of land r.eseryed u for the ministry and afterwards the inhabitants of the town sold the lot so reserved, and put the proceeds of the sale at interest, as a fund for the support of a minister : It was held that the fund was the property of the town, and that a part of the inhabitants incorporated as a religious society could not recover of the town any part of the said interest to be applied to the support of a minister of…

A bridge, though erected by individuals, yet if dedicated to the public and «sed freely by them so long as to evince its public usefulness, must be repaired by them. The duty to repair is now devolved altogether upon towns, and in no cases upon counties. This was an indictment for not repairing a bridge, in the town of Campion, across the Pemigewasset river.

A contract to marry at the end of five years is within that clause of the statute to prevent frauds and perjuries, which relates to agreements not to be performed within the space of one year from the time of malting them. This was an action of assumpsit on a promise of marriage.

The office of constable is a public elective office,and a sale of it by the town i-contrary to sound policy. A note given to secure the consideration, agreed to he paid for said office, is void, This was assumpsit on a promissory note, dated April 9th, 1817, for $13,50.

An attorney lias, ex-officio, authority to hind his client by an agreement in certain cases, and is liable to him for any abuse of such authority. If such an agreement be made in court in term time as to an action then on the docket, it may be considered a part of the materials from which the record is to he drawn up, and may be enforced specifically by holding it to be conclusive evidence of the facts agreed to.

A tenant in a real action may, to disprove the demandant’s seisin, shew a title in a iiiird person. This was a writ of entry, in which demandant counted upon his own seisin of, ⅜ tract of land in Eaton, and upon a disseisin by the tenant. Teste of the writ, July 26, 1821.

Where a mortgage was given to secure the payment of a note of hand, and after-wards the note win taken up and a new note given in lieu of it ; it was held that the mortgage was not tlieseby discharged. Where in a deed of conveyance, one, who signs, seals, and delivers the deed, is not named as a grantor, he is still bound as a grantor by the above acts.

Where the town of C, gave notice to the town of P that the town of C. had expended $35 87 for the relief of “ Sally and Esther B., and also daughter of ** Sally B ,” paupers having their settlement… Held: that “ daughter ./‘of Sally É. was not a sufficient designation of any particular person; and that as no particular sum was stated as expended for the relief of the other two paupers, the notice was altogether bad.

A. granted to B. by deed one half of a mill dam, with the privilege of taking the water from any part of tlie half gtanted ; it was held that the deed passed the right to the use of one half of the water only, and that case aright be ed against the grantee ior taking more tiran one half the water to tire injury oí the grantor Case for opening sluice ways in a certain dam in Turkey river, in Concord, and diverting the water from the plaintiff’s mills.

Whete in an action of trespass for an assault and battery, the defendant pleaded son assault dtrn*sn$, and the plaintiff re plied de injuria sua propria absque tali causa, &e. upon which issue was joined; it was held to be competent to the plaintiff to shew that the assault, which the defendant made, was outrageous and unflé-cessary to his defence. • Tins was an action of trespass for an assault, and battery. The defendant pleaded son assault demesne.

It is an unsettled question in this state whether an attorney has a lien for his cost. But if he has, it cannot prevail against the defendant, unless he notfies the de», fendant before a settlement with the plaintiff, that he intend» to insist upon his lien. This was trover for a horse.

The court decide on the materiality of any alteration in a written instrument ; but whether made by consent, or with fraudulent motive*, must be settled by the jury- ,. ,. An immaterial alteration by the promisee of a note does not vitiate it. An alteration of the date of a note from A. D. 1809, to 1819, though the note was in truth executed in AD. 1819, is material. Consent to an alteration may be either implied or express.

Two cannot fee made jointly liable for a tort, unless they did the injury jointly. Where property is bailed to two, a demand on one alone will not subject the other to an action sounding ex delictu. A-demand at the house of one is insufficient, unless under such circumstances as t® raise a presumption of actual notice to him before the commencement of the action.

When a servant acts under the special orders of his master, the master is not liable for his negligence in doing business not ordered. This was trespass on the case, for rashly setting a fire on land of the defendant, which fire -.was so negligently guarded, that it spread to land of the plaintiff, and .there,caused much damage.

A complaint for a forcible entry, most allege that the complainant was seized of the premises, or possessed thereof for a term of years, and that the entry was with a strong hand. This was a writ, of certiorari, commanding two justices of the peace in this county to certiiy their doings upon a certain process of forcible entry and detainer, had before them upon the complaint of Thomas S. Tillotson.

When a plaintiff, who lives within the state, when the action is commenced, dies-while the action is pending, the endorser of the writ is discharged. This was scire facias against Sloan,• as endorser of a writ in an action broughtby William Tarlton against Eaton, and was submitted to the decision of the court upon the following facts.

An agent is a competent witness for his principal, although his testimony may tend to discharge himself. Where goods are delivered by Jl to B to sell, and B delivers them to a third per» son to sell, such third person has so lien upon the goods for his charges in relation to the goods. Trover for eight saddles.

if a town appoint a person to the office of hogreeve, who is a minor, the town cannot afterwards object to his competency. Quaere, whether a minor is competent to fill any elective office in this state. This was an action of assumpsit for relief furnished to John Hacket and family, who were alleged to be paupers.

<p>A writ will not abate, on the ground, that the name of the defendant is spelt differently in the writ from his manner of spelling it, provided both modes of spelling have the same sound.</p> <p>This was assumpsit on an account annexed.</p> <p>The defendant pleaded in abatement that he “ was known and called by the surname of Currier, and not Kiah.” The plaintiff replied that the defendant “ was called and known as well by the name of Jacob Kiah, as by the name of Jacob Currier,” and an issue being joined on this fact, it was found for the plaintiff, under a direction from the court, that however the defendant might spell his name, yet if it was pronounced according to the spelling used by the plaintiff, he was entitled to their verdict.</p> <p>A motion was made for a new trial, on the ground of misdirection,</p>