Volume 20 — New Hampshire Reports

Petition eor Partition. The petitioner alleged that he was tenant in common of three eighteenth parts of two tracts of land, in Atkinson, with the defendant and other persons unknown. At the trial upon the general issue, it appeared that John Knight, the father of the defendant, once owned the premises of which partition is prayed.

Trespass, guare clausum, for breaking and entering tbe plaintiff’s field, in Lee, and carrying away bis grass, oats and potatoes.

Petition eor Partition. Upon the trial of an issue sent by this court to the Court of Common Pleas, it appeared that the petitioners were the sons of the defendant, Timothy Dame, and grandsons of Jabez Dame, a copy of whose will, dated the 21st day of May, 1811, and proved on the 25th day of January, 1814, they exhibited in evidence. The will contained the following clauses: “ Item 5. I give my son Timothy ten dollars, to he paid soon after my decease.” “ Item 10.

Assumpsit, on a promissory note of the following tenor: “ April 7, 1840. For value received, The Avery Factory Company promise William Jones, to pay him, or order, one hundred and eight dollars and eighty-one cents, on demand, and interest.

Debt, founded on a judgment rendered in the Court of Common Pleas, in Strafford county, January term, 1842, for the sum of $2,334.50 debt, and costs, taxed at $28.79, on which were issued four writs of execution, in due form; but there was no command in them for the officer to collect interest on the sum or sums named therein. The judgment was founded upon a note dated the 21st day of December, A. D. 1838. Plea, the general issue.

Trespass, for mesne profits of the farm called the David Wentworth farm, in Alton, from the first day of April, 1846, to the twenty-eight day of August, of the same year. Plea, the general issue.

Trespass, quare clausu/m, for breaking and entering a certain tract of land, being part of a five hundred acre lot, No. 2, situated in Ossipee, and cutting down the plaintiffs’ mill-dam, and drawing off water therefrom, so as to prevent the plaintiffs from working their mills. Plea, the general issue.

Petition, to set aside a judgment of a justice of the peace. The petitioner had -been impleaded at the- suit of the defendant in an action of assumpsit, before a justice of the peace, and in the writ and summons had been described as of Allenstown, whereas his residence was, at the time the action was brought, in Concord.

Petition, to vacate a judgment of a justice of the peace. The petitioner set forth that in the month of September, 1846, the petitioner had served upon him a summons, which directed George W. Ela, of Allenstown, to appear before Charles Rowell, Esq., one of the justices of the peace in and for the county of Merrimack, at his house in said Allenstown, on the 10th day of October, then next, to answer to Eranklin Goss, of Epsom, in a plea of the case for the alleged tort of…

In Equity. The bill states that on the 80th day of June, 1847, certain persons named, their successors, associates and assigns, were incorporated as the “ Manchester and Lawrence Railroad,” with a capital of from five to eight hundred thousand dollars ; that by the provisions of the act the government of the corporation was to have been vested in a board of not more than “ seven directors, chosen by the members of said corporation at their annual meeting, who shall elect one…

Assumpsit, brought by the plaintiff to recover the amount of an insurance against fire, effected with said company upon the dwelling-house of the plaintiff, which was destroyed by… Held: another of said directors was chosen to negotiate with the plaintiff in relation to the same matter. Subsequently to this last meeting some further negotiations were had between the plaintiff and directors in relation to the same object, but no reference was ever agreed upon between them.

Case. The declaration stated that the wife and daughter of the plaintiff, in crossing a certain bridge which the defendants were bound to keep in repair, and which was within the limits of said town of Troy, were, by reason of the unsafe condition of said bridge, and .for want of sufficient repair thereof, precipitated from -the bridge among the rocks beneath, and bruised and injured, — whereby the plaintiff was deprived of the labor of both his wife and child for a long…

Petition for leave to appeal from a decree of a judge of probate.

Assumpsit, upon a written contract, dated May 7, 1847. The plaintiff, by his deed of that date, had conveyed to the defendants a tract of land, in Walpole, bounded as follows: “Beginning at a point on the easterly bank of Connecticut river, on the northerly line of land late of Albert Carpenter, and now of the Cheshire Railroad Company, and running easterly on said line to a point forty feet distant at a right angle from a line recently staked out as the central line of the…

Assumpsit. The first count was for money paid, laid out and expended. The second was for money had and received.

Assumpsit. The first count was for money had and received, under which the plaintiff specified a note, dated on or about the second day of April, 1842, for $48.72, payable to the plaintiff, or order, on demand, with interest. Also, an account, viz : June 8, 1842.

Case, to recover for certain property taken and sold by one Isaac P. Wilson, a highway surveyor. The plaintiffs were owners of the property, subject to a lease from them to one Sturtevant. On the 24th day of February, 1845, the selectmen of Haverhill issued and posted up their warrant for a town-meeting, on the eleventh day of March, then next.

Trespass, for pulling down the plaintiff’s barn and destroying 500 pounds of hay, and converting the same to the defendant’s use, October 29,1846. The surviving defendant, George, justified as the servant of Sophronia Chase, the owner of the land on which the barn stood, by whose directions, communicated through Nehemiah Chase, he entered and removed the building in a peaceable manner.

Trespass, for a false imprisonment. The defendants justify, as selectmen of the town of Rumney, in 1842, and as having in that year assessed a tax upon the plaintiff for his poll, some real estate and neat stock, and committed the same to the collector for collection. The plaintiff declined paying said tax, and in September, 1844, was arrested by the collector and carried to jail, and detained till he paid the tax and costs.

Assumpsit. Tbe contract, signed “ A. Haven, agent, Tyson Furnace, by E. K. West,” was dated December 17, 1840.

Assumpsit, -upon an agreement dated tbe 14tb day of December, 1838, by which, in consideration that the plaintiff would remove from certain premises and permit tbe defendants to occupy them, tbe last named parties promised to cut and haul out for her, seven and one half cords of wood each year that she should so forbear to occupy tbe premises.

Trespass. The plaintiffs alleged that the defendant broke and entered their close in Hampton, containing one hundred acres, more or less: bounded westerly on the Hampton main river in part, and partly on land of H. Smith; north-easterly on the southerly line of the range of the beach grass lots and the beach; south-easterly on the Atlantic ocean, and southerly on said river; and then and there destroyed his grass, and carried away ten loads of fiats-weed, and ten loads of…

Writ ok Entry, upon a mortgage. Tbe deed offered in evidence by tbe demandants contained tbe condition tbat it should be void, “if tbe defendant, bis beirs, &c., shall well and truly pay into tbe Savings Bank, in Dover, known by the name of tbe Strafford Savings Bank, or tbe president and directors, their beirs and assigns, tbe fall one half part of a note signed by David Davis, John Chadwick, Solomon Hayes and Joseph Boody, and keep the said Boody harmless from the one full…

<p>Writ of Entry. In the amended count the defendant is summoned to answer to John M. Stevenson, of, &c., James Norris, of, &c., and Lucinda Norris, wife of the said James Norris, in right of the said Lucinda, in a-plea of land, wherein they demand, against the said Francis Cofferin, one undivided half of forty acres of land, situate, &c., bounded, &c., which they claim to be their right and inheritance, and whereof the said Cofferin unjustly, and without judgment, disseized one James Stevenson, father of the said John M. Stevenson and Lucinda Norris, whose heirs they are, within twenty years now last past. Whereupon they say, that the said James Stevenson, father of him, the said John M. Stevenson, and of her, the said Lucinda Norris, whose heirs they are, was seized of the messuage aforesaid, with the appurtenances, in his demesne as of fee and in right, within twenty years now last past, by taking the profits thereof, to the value of ten dollars, by the year; and the said Francis Cofferin thereof dis-seized him, and from the said James Stevenson the right descended to the said John M. Stevenson and James Norris and Lucinda Norris, in right of the said Lucinda, who now demand the same; the said John as son and heir, and the said Lucinda as daughter and heir, of the said James Stevenson, and the said Francis Cofferin still unjustly withholds the same.</p> <p>To this count the defendant demurs generally, and the demandant joins in demurrer.</p>

Replevin, of certain goods specified in the plaintiffs’ writ, claimed by them as their property, but attached by the defendant, a constable of Concord, as the property of one Nathaniel C. Bacon, of Bai-re, Vt., on sundry writs against him. The plaintiffs, merchants in Boston, sold these goods on account, to said Bacon, April 26, 1847.

Petition, entered by tbe Concord Railroad, at tbe Court of Common Pleas, holden at Amherst, in August, 1841, setting forth that they bad located their road through certain land belonging to said Greely, and being unable to agree with him as to tbe value of said land, prayed that a committee might be appointed by tbe court to appraise the damage to said land.

<p>• Motion for bail on the part of McNab, a prisoner, indicted for causing the death of a female by means used to procure a premature child-birth. The facts sufficiently appear in the opinion of the court.</p>

Assumpsit, on a promissory note, dated December 12, 1846, for $16.68, payable to tbe plaintiff or order, in three months after date, with interest. The defence was that the note was without consideration, and was never delivered by the defendants.

The record of the judgment recites that the defendant claimed an appeal, and recognized with sufficient sureties. But by the recognizance produced, it appeared that the defendant recognized as principal, and one Chase, as his surety, and he was the only surety, and the appeal was granted.

In Equity. The bill was brought to compel the defendants, who were the heirs of Nehemiah Kittredge, deceased, to release to the plaintiff, the wife, certain real estate, which was said to have been omitted by mistake in a deed from the deceased to the wife. The defendants claim the land as heirs of Nehemiah Kittredge, and by their joint answer deny that there was any mistake.

Assumpsit, on an award. The parties had, on the 9th day of March, 1847, appointed and empowered Aaron P. Howland and George Bundy to adjust all matters in dispute between them, relative to the division of the crops and stock of the farm owned by the plaintiff, and occupied by the defendant, and agreed to abide the award of said arbitrators, and of any umpire appointed by them, so that the award be made in writing, and ready to be delivered to the parties on or before the…

Assumpsit, on an award. The declaration set forth a submission by which the parties, on the 9th day of March, 1847, appointed and empowered certain arbitrators to adjust all matters in dispute between them, relative to the division of the crops and stock upon a farm of the plaintiff, occupied by the defendant; the award to be made in writing, on or before the first day of the following May. “ It being understood that the division of the stock may be made at any time, without…

Trespass, de bonis. The writ was dated ou the 1st day of Mareb, 1847. The plea was tbe general issue, accompanied by a brief statement, by which, the defendant justified the taking, as a constable of Walpole, having sundry writs of attachment against the plaintiff. The chattels were taken on the 11th day of September, 1846, and a few of them were by law exempt from attachment.

Assumpsit, on a note made by tbe defendant on tbe 15tb day of July, 1847, payable in ninety days to William Morgan, or order, and by bim indorsed and transferred, in tbe September before its maturity, to tbe plaintiff, who received tbe same bond fide. Tbe defendant offered to sbow that tbe consideration for wbicb be gave tbe note to Morgan bad failed.

Case. The declaration alleged that tbe defendant and one Cutting, since deceased, were, on the 19th day of September, 1838, owners of a certain farm, and that the plaintiff treated with them for the purchase of it; that the defendant fraudulently, and with the intent to deceive the plaintiff with regard to the value of the farm, and to induce him to pay for the same a larger sum than he would otherwise have paid, and more than it was in fact worth, falsely represented to him…

Petition. Chase, one of the petitioners, alleged that, upon the application of the Sullivan Railroad Company, the railroad commissioners, by the direction of the governor and council, and in pursuance of an act entitled, &c., had laid out a railroad, which passed over the land of the petitioner; that the railroad commissioners, in conjunction with the road commissioners of the county, had assessed the damages sustained by the petitioner at four hundred dollars, with which…

Assumpsit, upon a policy of insurance, issued by tbe defendants to the plaintiff on the 24th day of December, 1840, by which, in consideration that the plaintiff had become a member of that company, and bound and obliged to pay all such sums of money as might be assessed by the directors, pursuant to the act of incorporation and bylaws annexed to the policy, and had also secured to the company the sum of three hundred and one dollars, being the amount of deposit or premium…

Assumpsit. The action was committed to an auditor, who reported a balance in favor of the plaintiff’, subject to the opinion of the court upon the faets which he reported, as follows: It appeared in evidence that the plaintiff had been in partnership in the practice of the law with Andrew S. Woods, under the firm of Goodall & Woods: That some time in the year 1836 General Moody Bedel employed said Woods to bring an action against Lewis Loomis and others.

<p>Libel for divorce. An objection was made to the deposition of Phoebe Foster, a witness for the libellee, which was taken regularly with notice, but in tbe absence of tbe opposite party. After the deposition bad been finished and sealed up, tbe witness was made aware of an error, and at her request tbe deposition was opened, and an alteration made in tbe absence of tbe libellant. It was further objected, that tbe deposition was produced before tbe commissioner, ready written by tbe witness. Tbe deposition of Jacob Whitcher was also written by himself. A motion was submitted to suppress tbe deposition for these causes.</p>

Petition of the town of Bethlehem, for leave to discontinue a highway which was laid out in 1846 by the road commissioners, and never opened for travel, or made. The present road commissioners, to whom this petition had been referred, discontinued the same, and assigned as a change in circumstances, rendering it proper to discontinue the said highway, the construction and near completion of the railroad from White River to Wells River in Vermont.

In Chancery. The bill stated that April 21,1838, an action of trespass, brought by one Dorothy Wendell against the plaintiff, for trespass upon her close, in Lyman, and cutting and carrying away her timber trees, was pending in the Court of Common Pleas for Grafton county: That prior to that day said Dorothy died, and the defendant, one of the executors, prosecuted said action for his own benefit; that on said day the plaintiff proposed to G. & W., the defendant’s attorneys,…

Assumpsit. The declaration alleged that on the 4th day of December, 1839, in consideration that the plaintiff’ had, at the request of the defendant, bargained with the defendant to deliver to him twenty-five sheep, of the value of $31.25, the defendant promised to receive the sheep and keep them one year, and return them, or the same number of sheep, and as good, and pay the plaintiff also one pound of wool for each during the said year.

<p>One cannot be ebaTged as trustee by reason of bolding funds belonging to the wife of the principal, or which have been assigned to another in trust for her separate use:</p> <p>Nor by reason of holding funds of persons indebted to the principal, on which he has a lien, or which he has a power-of-attorney to receive.</p>

' Assumpsit. The cases were referred to an auditor, who found a balance for the plaintiffs, and at the request of the parties reported the evidence and the exceptions which were taken at the hearing.

Debt, brought to recover tbe sum of $186.33, assessed by tbe railroad commissioners in conjunction with tbe road commissioners of tlie county of Rockingham, as damages sustained by the plaintiff by the laying out of the defendants’ railroad over his land, and the partial construction of the same.

This is a petition to the Court of Common Pleas, praying their consent to the discontinuance of a highway, laid out in Hampstead, on the petition of M. Williams and others. The petition of Williams and others was filed in the clerk’s office, July 7, 1848, and an order of notice published ; and at the September term, 1848, the petition was referred to the road commissioners.

This is an action of assumpsit against the defendant, as indorser of a note, of which the following is a copy: “Portsmouth, May 3, 1848. For value received I promise to pay Benj. Carter, Jr., or order, two hundred seventy-seven dollars and eighty-one cents, in ninety days, and grace. Boring Wing.” This note was discounted by the plaintiffs on the 6th of the same May, and indorsed by the defendant, to whom the money was paid.

. Indictment, charging that tbe respondents, on the 18th of November, 1848, with force, &c., made a violent and unlawful assault upon one John B. Hill, and beat, bruised and ill-treated him, and pushed, kicked, pulled and threw him on the ground, &c., contrary, &cl, against, &c. The respondents severally pleaded not guilty.

Trespass, for taking and carrying away a borse, property of tbe plaintiff, of tbe value of one hundred dollars. Tbe writ was dated tbe 27tb day of December, 1848.. Tbe plaintiff, by a specification filed in tbe case, stated that tbe taking complained of was committed by one Benjamin T. Bartlett, a deputy of tbe defendant, on tbe 28tb of February, 1846. Tbe general issue was pleaded, accompanied with a bi'ief statement, as follows: 1.

The town of Milton voted to discontinue a highway, and appointed a committee of three persons, to petition the Court of Common Pleas for their consent to the discontinuance. A petition was presented, stating these facts, but it was signed by only two of the committee. Upon an objection to the petition on this ground, the town now moves for leave to amend the petition, by adding the signature of the other member of the committee.

Trespass, for taking a buggy, chaise and harness of the plaintiff, on the 15th of February, 1848. Plea, the general issue, with a brief statement, justifying the taking for a tax assessed against the plaintiff, for the political year ending March, 1848, by the defendants, the selectmen of the town of Meredith for that year.

Writ or Summons under the landlord and tenant act. This action was commenced on the 18th day of August, 1847, before a justice of the peace, under the 209th chapter of the Revised Statutes, relating to actions against tenants; and the defendant, having filed a plea of soil and freehold, the justice recorded said plea, and thereupon said action was brought to the Court of Common Pleas.

<p>A motion for an issue to the Court of Common Pleas in a suit in chancery is premature, if made before the pleadings are closed, so as to enable the court to see what facts are controverted, and to give the party entitled the benefit of the discovery which the defendant may make in his answer.</p>

Petition of Gilford, for reimbursement of tbe amount expended by said town for tbe relief of Streeter Hackett and Sally Hackett, persons standing in need of relief and applying for tbe same, and whom tbe petitioners alleged to be county paupers. It appeared that tbe paupers were tbe legitimate children of John Hackett, a foreigner, having no settlement in this State, and of Sally Hoit, who was married to tbe said John in March, 1817.

Jonathan T. Chase, Judge of the Probate of Wills, &c., for the County of Carroll: Whereas your Honor did, at a probate court holden at West-Ossipee on the second Tuesday of July last past, within and for the county of Carroll aforesaid, appoint Sarah Ann Copp, widow of Langdon Copp, late of Tuftonborougb, in said county, deceased, guardian of Elizabeth Adelaide Copp, an infant daughter of said Langdon, I, Isaac N. Copp, of said Tuftonborough, considering myself aggrieved by…

The defendant demurred to the plaintiffs’ declaration, and the questions arising upon the demurrer were transferred to the Superior Court for determination. The Superior Court sent to the Common Pleas, at the November term, 1849, the following certificate : “In this case it is adjudged by the court that there be judgment for the defendant upon the demurrer.” The plaintiffs thereupon moved the Common Pleas for leave to become nonsuit.

Information. A highway had been laid out in the towns of Concord and Boscawen, by an order of the Court of Common Pleas, in 1847, which those towns had neglected to build; for which neglect the solicitor for the county of Merrimack, in vacation after the October term of the Court of Common Pleas, 1848, filed in that court an information against each of the towns. The informations were entitled and began as follows: “The State of New-Hampshire.

Libel for Divorce, filed August 26, 1847, alleging adultery with Orville M. Cooper, in the month of December, 1845, and at divers other times before and since, and with divers other persons to the libellant unknown. There was evidence of adultery with one Marble at Nashua, in the month of October, 1847, which the counsel for the libellee moved to suppress.

Foreign Attachment. The facts shown by the trustee in his disclosure are as follows: On the 21st of November, 1847, the trustee purchased of Ross a lot of beer bottles, and articles used in the making of beer, at the price of twenty-five dollars, their full value, in good faith, without any trust or understanding that it was to prevent attachment.

Assumpsit. The declaration was as follows: In a plea of the ease for that said defendant, on the 21st day of July, A. D. 1838, at Nashua, in said county of Hillsborough, by his agreement in writing, under his hand of that date, admitted himself to be the holder of a note of two thousand dollars against the Second Baptist Society in Nashua, and payable to said defendant, on demand, with interest annually, bearing date February 23, A. D. 1837, with intei’est thereon paid until…

Covenant. Tbe plaintiff by indentures on tbe 4th day of September, 1847, for a rent therein reserved, leased to tbe defendants a cellar in Manchester for a term of years, “from tbe time that said Clarke shall finish and bave in readiness tbe same for tbe occupation of said lessees.” This action was brought to recover the rent for the quarter ending on the 14th of June, 1848. The defendants pleaded, 1.

Debt, brought to recover the sum of sixty-five dollars, awarded to the plaintiff as damages for laying out a highway, by the selectmen of Walpole, under the following circumstances: The plaintiff had an estate for life in a piece of land over which the highway passed, the reversion being in the heirs of her late husband, J. B. Sparhawk.

Motion to the Court of Common Pleas for this county, to set aside an execution.

Trespass, for assault on the 16tli day of June, 1847, and imprisoning tbe plaintiff, and holding him in prison until he paid the sum of $309.08, to procure his release.

Trover, for eleven horses and other chattels, described in a mortgage from H. & D. A. Burgett to the plaintiff. The defence was, that the defendant was an officer, and had taken the property by virtue of sundry writs against the mortgagers. To sustain his action the plaintiff gave in evidence a mortgage from H. & D. A. Burgett to himself, dated on the 12th day of February, 1848, purporting to convey the chattels in controversy.

Writ of Entry. The parties submitted the following statement of facts : On the 27th day of August, 1836, and on the 3d day of April, 18,37, Franklin B. Burke, of Cornish, conveyed in mortgage the premises mentioned in the declaration, to Abel Wheeler, of Claremont, to secure the payment of two promissory notes, made payable to the said Abel Wheeler; one for the sum of two hundred and sixty dollars, the other, also, for the sum of two hundred and sixty dollars : that the said…

Indictment, for conspiring with Stephen B. Brewster, and other persons, to the jury unknown, to defraud one William A. Woods of a large quantity of wood, by pretending to purchase the same. When the attorney-general had closed the evidence for the State, a motion was made by the defendant’s counsel for a continuance, on account of the absence of a material witness, residing without the State.

Petition, stating that an action in favor of the president, directors and company of the Grafton Bank, against the petitioners, Kimball, Morse and Haywood, was pending in the Court of Common Pleas' at the April term, 1848, in which certain questions arising upon a statement of facts submitted by the parties, were at that time referred to the Superior Court, and the action continued in the court below from term to term, until the April term, 1849, when the determination of…

Assumpsit, upon a joint contract made by the defendant with the plaintiffs, Gordon & Bailey. Before the commencement of the action, Gordon, for a consideration, assigned his interest in the contract to Bailey, who sues for his own benefit alone. The defence set up is, that since the assignment the defendant had paid the debt to Bailey. Gordon has received no part, of the debt at any time.

Assumpsit, on account annexed, viz.: ' 1847. November 8. To balance of old account, $397.48 To merchandise, per hill, net, 968.95 Interest to January 17, 1848, 15.71 $1,382.14 There was a second count, for goods sold and delivered, of $1,400. The defendant confessed the action, and $1,094.37 damages, and pleaded the general issue to the residue; and the plaintiffs introduced evidence tending to prove their account, which was not controverted.

Foreign Attachment. The trustee in this action having completed his disclosure, from which it appeared that prior to the service of the process upon Mm he had received notice from the endorsee of the note on account of which the plaintiff sought to charge Mm, that said note had been transferred to said endorsee, and it being admitted, for the purposes of this case, by the plaintiff’s counsel, that said note was not made or payable within this State; and also, that at the…

It appeared that the report of the commissioner was returned and accepted at a court of probate holden on the third Tuesday, being the twenty-first day of August, 1849, and continued through that and the following day. It further appeared, from the affidavits of the judge and register of probate, that the action of the court upon the report was on the first day of the term, or session.

Writ or Entry. The action was commenced in the eastern judicial district of this county, and entered at the November term of the Common Pleas, 1848. At the November term, 1849, the defendant first pleaded the general issue, and then moved to file a suggestion under the statute for betterments. To this the plaintiff objected.

Covenant broken. The declaration alleges that the defendant on, &c., at, &c., executed a deed to the plaintiff’ of a certain farm, situate, &c., and covenanted with the plaintiff’ that on the day of the delivery of the deed, and until such delivery, the defendant was lawfully seized in fee simple of the premises, and that they were free from any incumbrance; whereas the defendant was not lawfully seized in fee simple of the premises, and they were incumbered by an annual…

Foreign Attachment. Hanson, the principal debtor, suffered default. The trustee disclosed that he was indebted upon a promissory note, dated May 14, 1846, for forty-five dollars, payable to William G-. Wentworth, or order, on demand; that the note was given in part payment of the price of a horse which he bought of Hanson, and supposed to be his, and that the note was in form made payable to Wentworth ,at Hanson’s request.

Trespass, for seizing, taking and driving away 52 sheep of the plaintiff, of the value of $100, at a place called Hereford, in the Province of Canada, to wit, at Lancaster, keeping and detaining the same six days, and injuring them.

Assumpsit. The declaration alleged that defendant, on the first of June, 1844, in consideration that the plaintiff, at his request, would buy of him certain plow castings, at a certain price, to wit, &c., agreed that the said castings were good; that he did buy the castings and pay for them, and that they were not good, were brittle, and of no use or value, &c. Upon the general issue the plaintiff offered evidence tending to show that it was the custom of all the…

Assumpsit, brought for tbe services of George W. Huntoon, tbe infant son of the plaintiff, rendered to tbe defendant between tbe 4th of December, A. D. 1843, and tbe 7th of April, A. D. 1845.

Trover, for two cows, driven by the defendant from the farm where the plaintiff lived, on the 22d day of March, 1841.

Indictment, alleging that the defendants were selectmen and overseers of the poor of and in the town of Exeter, for and during the political year of eighteen hundred forty-three, and as such were hound by law to see to and provide for all poor, sick and diseased people, who were taken sick within said town of Exeter, and were unable by reason of sickness to be moved, and take care of and provide for themselves during their sickness in said town; yet well knowing that Eleanor…

<p>Replevin, to recover the possession of a horse, chaise and harness. The chattels in controversy were found in the possession of one David Campbell, and seized by the defendant, a deputy sheriff, by virtue of an execution regularly issued upon a judgment in favor of one "William Abbott against said Campbell, recovered in the Court of Common Pleas for the county of Merrimack, March term, 1842, for $98.93 debt or damage, and $6.09 costs of suit. The seizure was made on the 13th day of May, 1842. It was agreed that judgment should be rendered for the plaintiff, or that he should become nonsuit, according to the opinion of the court.</p>

<p>An indictment, describing the things stolen as “three dollars in divers pieces of silver, current in this State, and of the lawful value of three dollars,” is bad on error.</p>

Petition, by tbe railroad, for tbe assessment of damages occasioned by taking the land of said Wentworth for the use of the road. The petition was dated December 27, 1841, and entered at the January term, 1842. At the May term of the Court of Common Pleas a committee was appointed to assess damages.

Assumpsit, for money had and received, in which the plaintiff claimed to recover the sum of $150, which he alleged to be the property of the bankrupt, and to be in the hands of the defendant.

Assumpsit, on an agreement between tbe wife, one of the plaintiffs, and the defendant, that in consideration that she would deliver to him two sheep, her property, the defendant would, on the expiration of four years from such delivery, deliver to her four sheep; and that she, confiding on such promise, placed the two sheep in his possession on the first day of July, 1882 ; yet that he did not, at the stipulated time, or since, deliver to her the four sheep, but, though…

Assumpsit, on a promissory note given by the defendant, July 25, 1886, for fifty-five dollars, payable to the plaintiff as follows : Five dollars in November, 1836 ; fifteen dollars in November, 1837 ; twenty dollars in November, 1838, and fifteen dollars in November, 1839, with interest.

<p>Sureties, who have paid each a moiety of the debt for their principal, have a several right of action against him for indemnity.</p> <p>A plaintiff against whom the statute of limitations is interposed, by a brief statement under the general issue, should be permitted to prove his claim, in order that he may prove a new promise, if the bar applies.</p>

Assumpsit, upon an order drawn by the defendant, which was as follows: “ Claremont, March 22, 1842. “Theron Metcalf, Sir: — Value received, pay Leonard Fisher $418.72, of the avails of goods attached on a writ in my favor against Simeon Haywood, and the interest on the same, when said goods are sold and the avails realized— to be collected as soon as conveniently may be after sale.

Assumpsit, upon a promissory note, dated January 6, 1841, for fifty dollars, payable to tbe plaintiffs, one half in two years, and the other half in three years, for the benefit of Hannah W. Hatch, on condition that her infant child should live so long; and if not, in proportion to the time it should live.

Assumpsit, upon a contract in the following terms: “It is agreed that the subscribers shall, on their joint account, endeavor to procure the mail-contract on route No. 169, from Haverhill to Lancaster, N. H., from July 1, 1837, to June 30, 1841; and in case they succeed it shall be divided at Littleton, the north half to belong to the subscriber, George Bellows, and the south half to the subscribers, the Littleton Stage Company; and in case of disagreement between the…

<p>In Equity. William Gardner died on tbe 27th day of April, 1833, having devised the whole of his real and personal property to Sarah Gardner, his wife, during her life, except his farm in Wendell. “No part of the bank stock is to be disposed of, unless her comfort should require it, but it is to be apportioned to my relations according to her discretion, to be enjoyed by them after her decease.”</p> <p>Sarah Gardner, the wife, died on the 11th day of August, 1841, having made her will, in which she, reciting the power conferred upon her by the will of William Gardner, to apportion the bank stock remaining unsold among his relatives, for the purpose of carrying the same into execution, gives, bequeaths and apportions the same in various shares among the persons therein named, who, at the time of making her will, would have been the relatives of William Gardner in various degrees of consanguinity, had he been then living. James W. Emery was appointed executor, who afterwards resigning the trust, letters of administration, with the will annexed, were granted to Albert R. Hatch.</p> <p>Henry E. Erench was, upon the decease of Sarah Gardner, appointed administrator de bonis non curtí testamento, &c., of William Gardner, and, as such, claimed the bank shares named in the will of each of those parties that had not been sold by Sarah in her lifetime.</p> <p>The plaintiffs, thirty-three in number, were the persons in whose favor Sarah Gardner had by her will assumed to exercise the power of appointment or apportionment conferred by the will of her husband.</p> <p>The bill states the foregoing facts; describes the particular degrees of relationship of each of the plaintiffs with William Gardner deceased; states that Hatch, the administrator of Sarah, ought to have possession of the bank stock, for the purpose of distribution among the plaintiffs, as the relatives of William Gardner, according to the appointment of Sarah; and prays that a decree may be made requiring French, the administrator, to deliver over and assign to Hatch, the representative of Sarah Gardner, all the bank stock received by him, together with the accruing dividends, and that the same may be distributed to the plaintiffs, according to the will and appointment of Sarah Gardner.</p> <p>The two administrators, and sundry persons claiming under the administration of William Gardner’s estate, are made parties to the suit.</p> <p>It appeared that there were living, of the kindred of William Gardner, one brother, Christopher, and seven nephews and nieces, the children of deceased brothers ; and that these were all living at the death of Sarah Gardner : that Christopher Gardner has since deceased, leaving children, and the defendants by their answer insist that those parties alone are entitled, under the will of William Gardner, to the bank stock.</p> <p>By the will of William Gardner, the farm in Portsmouth was devised to Andrew Gardner, subject to certain charges and provisions in favor of other persons ; “ to revert,” however, to the testator’s “relations” in the event of the death of Andrew “without issue.”</p> <p>The cause was brought to a hearing upon the bill and answers.</p>

Assumpsit for $600, money had and received. No specification of the claim was filed by the plaintiff. The defendant was defaulted at the first term, and the action was continued on account of the trustee.

<p>Assumpsit against the defendant as a feme sole.</p> <p>The writ was dated February 16, 1843. It was referred to an auditor, who made a report in favor of the plaintiff’ for $24.82. He also reported “ that it appeared, from the testimony of the defendant, that she has a husband living in the State of Hlinois, who left her fourteen years ago, and who has not since been in the State of New-Hampshire, to her knowledge. Never has a year elapsed without receiving a letter from him, but she has received not much, or any support from him since he went away, and none for the last twelve years.. It was hard times here, and he went away to seek employment, and intended, if he succeeded in his business, to send for the defendant.”</p> <p>No other evidence in regard to the marriage of the defendant was offered at the trial.</p> <p>At the trial before the jury the defendant moved for a nonsuit, upon the ground that this action could not, upon the foregoing evidence, be maintained against the defendant as a feme sole; but the court overruled the motion, and instructed the jury that the foregoing evidence was not sufficient in law to preclude the plaintiff' from maintaining this action against the defendant as a feme sole, and the jury returned a verdict for the plaintiff for six dollars and fifty-nine cents.</p> <p>The report of the auditor exhibited an account of items in favor of the plaintiff, amounting in all to $69.45, of which the sum of $9.96 accrued since December 24, 1840; and in favor of the defendant there appeared a gross amount of $44.63, but the items with their dates did not appear.</p>

Assumpsit, on a promisory note, dated on the 12th of January, 1840, for $100, payable by the defendant to one Stephen Twombly, or order, on demand, with interest, and by him indorsed to the plaintiff.

Indictment, against Joseph H. Wiggin and Samuel L. Wiggin, alleging that the defendants, being joint grocers in company, at Dover, on the 3d of January, A. D. 1844, not being licensed taverners or retailers, unlawfully sold one half gill of certain spirituous liquors • called gin, to one Samuel Thompson, for the price of three cents, contrary, &c. Upon the trial it appeared that the defendants were formerly in partnership as grocers, in Dover, and that March 1, 1843, they…

Assumpsit, for supplies furnished by the town of Gil-ford for one Lydia Stevens, and for the funeral expenses and burial of said Lydia, a pauper, alleged to have her settlement in the town of Gilmanton. The pauper had no settlement in Gilmanton unless she derived a settlement therein from her father, Daniel Stevens.

Assumpsit, on an account annexed to the writ, on a quantum meruit for labor, and a general count for money had and received, money paid, &c. It appeared that the plaintiff had applied to the defendant to furnish him with a threshing-machine, and the defendant agreed to do so if the plaintiff would send a hand to do a part of the wood-work, and would also furnish a set of wagon wheels.

Petition of Ira Hanson and others, for a highway in Ossipee and Effingham. The petition was committed to the road commissioners, who reported against laying the road. The two towns thereupon moved for costs to be taxed against the petitioners, including the witnesses’ fees, at one dollar a day for attendance and six cents a mile for travel; also, the fees of the commissioners.

Trespass, quare clausum, and for cutting and carrying off timber, and destroying timber on lot No. 10, in Conway, drawn to the original right of George Abbott, and called the Burbank farm, on the 16th of December, 1844. The writ was dated February 8, 1845.

Assumpsit, for use and occupation of house, sixty dollars, of garden, ten dollars; cash, four dollars, and services, two dollars. Plea, discharge in bankruptcy, September, 1843 ; replication, a new promise since, &c. Arthur Fletcher testified that the plaintiff left with him for collection and settlement the above claim: That, in the spring of 1848, he asked the defendant to pay it, and told him what the claim was for.

Assumpsit. Tbe declaration contained two counts. Tbe first on account annexed, for use and occupation of a tavern stand from April 1, 1843, to December 20, 1844, $500. Tbe second, for use and occupation of a tavern from April 1st to December 20, 1844. The plea was the general issue, with a set-off, $1,049.21.

Assumpsit, founded on a receipt dated April 80, 1842, given by the defendant to the plaintiff, a deputy sheriff, for certain articles of personal property which had been attached by the plaintiff on two writs in favor of Ezekiel P. Pierce against one Reuben Porter.

The parties submitted the following agreed case: Henry Kelsey, the intestate, died under the age of twenty-one years, and unmarried, leaving estate derived by descent from his father, Henry Kelsey, deceased, of the value of three thousand two hundred and ten dollars; and also estate derived by immediate descent from his mother, Lois H. Kelsey, of the value of eleven hundred two dollars and sixty-two cents; the same having been principally derived to her from the estate of…

Trover, for a note dated at Claremont, the 18th of February, 1846, signed by the plaintiff, for the sum of $528.45, payable to Proctor & Kendall, or order, on demand, with interest. Plea, the general issue.

Debt on a gaol bond, dated on tbe 15th day of November, 1843, in which the defendant was the surety of one Jonathan B. Rowell, who was arrested on execution, and after the delivery of the bond was admitted to take and actually took the oath provided by law for the relief of poor debtors.

Assumpsit, for money paid, laid out and expended. The action was appealed from a justice of the peace. The evidence tended to show that the plaintiff hired one Samuel Moore to drive his team to Portland and back, with merchandize, and furnished him with money to pay his expenses: That Moore took for the defendant two axes to be repaired, and when the defendant called for them, he said he had no money by him then.

Writ or Entry, to recover 2000 acres of land in this county, called Martin’s Grant. The writ was dated September 28,1841. The defendant pleaded the general issue; and at a subsequent time, by leave of court, and upon payment of costs, the plaintiff objecting, filed a brief statement, claiming betterments upon 100 acres of the demanded premises, being the easterly half of two hundred acre lots numbered one and two, as described in said brief statement.

Assumpsit, for the support of certain paupers, alleged to have their settlement in Bethlehem. The declaration contained five counts.

‘Writ oe Entry, dated on the 26th day of October, 1841, and brought to recover 2000 acres of land in this county. Plea, the general issue, with a claim for betterments on lots No. 1 and 2, in the second division of lots in Pink-ham’s Grant, so called, part of the demanded premises.

Indictment, for not keeping in repair a certain highway. The return of the selectmen laying out the highway described in the indictment, which was madé on the 29th day of November, 1826, was, “ That pursuant to a vote passed at a legal town meeting, duly notified and holden in the town of Newmarket, on the 29th day of November, 1826, requesting the selectmen of Newmarket to widen and straiten the road leading,” &c., “agreeable to a petition to the selectmen of Newmarket for…

Petition of Ira Hanson and others for a highway in Ossipee and Effingham. The road commissioners reported against laying out the highway, and the court rendered judgment upon the report for said towns, and their costs. The towns both appeared before the road commissioners, and have both appeared in court: Effingham by .Tosiah Dearborn, Esq., and Ossipee by Luther I). Sawyer, Esq., at the same time, and claim full costs, to be taxed separately for each.

<p>Assumpsit. The facts sufficiently appear from the opinion of the court.</p>

Assumpsit, upon an account annexed. There was also a general count for money had and received, money paid, goods sold, and labor done.

<p>Case, against a deputy-sheriff for not safely keeping certain personal property, attached by him at the suit of the plaintiff against James H. Bingham.</p> <p>The attachment was subject to an earlier one, made in favor of Amos Lovell and wife, who had, in October, 1844, recovered judgment against the present defendant for the same misfeasance, in the sum of $317.75 damages, and $117.68 costs, which was satisfied.</p> <p>The defendant reviewed the action, under the advice of Mr. Hubbard, his counsel, with the understanding that whatever might be recovered in the review should be paid to the latter, and passed to the defendant’s credit in account for fees, &c., and the surplus, if any, should be paid to Mr. Gates, his other counsel. Hpon this review, in the prosecuting of which the plaintiff had no agency, the defendant recovered $228.81 damages, and $49.49 costs, and those sums were received by Mr. Hubbard.</p> <p>The parties, having agreed that the plaintiff was entitled to recover $526.39 in damages, unless the result of the review ought, in the judgment of the court, to limit such damages to a smaller sum, submitted the foregoing statement of the facts.</p>

Petition, representing that Daniel Weld, on the 19th day of March, A. D. 1834, conveyed his farm, in Cornish, of the value of three thousand dollars, to his two sons, Daniel Weld, Jr., and Moses Weld; who, on the same day, re-conveyed the same farm to the petitioner and his wife, Lydia Weld, with a condition for the support of the petitioner and his wife, during their lives; and one of the conditions was that they might occupy such part of the dwelling-house as they might…

Assumpsit. The writ contained two counts, for money had and received, and money paid. The action was referred to an auditor, who reported, substantially, that in July, 1842, the defendant owed the plaintiff a note of $48.72, and turned over to him a note of one Adams Moore, for $56, taking in exchange the note of $48.72, and a note of the plaintiff for the difference of $7.28, which last note was afterwards paid, but the note of Adams Moore had never been paid.

Pickering, Joshua B. Pickering and Martha B. Pickering, praying for partition to be made of certain lands held by them in common with Prank T. Pickering, the appellant. A committee had been appointed by the court of probate, and the decree was made upon their report, the material contents of which sufficiently appear in the reasons of appeal, among which were the following: “ 4.

Assumpsit, upon a receipt given by the defendant to the plaintiff, a deputy-sheriff, for goods attached by him, upon a writ in favor of one Josiah Dearborn against Alfred J. Batchelder, dated February 5, 1842.

Case. The plaintiff alleged that the defendant was, on the 1st day of January, 1843, the owner of a corn-mill, and that the plaintiff then, and during all the time since, had the right to grind his corn at that mill; that the defendant was bound to keep the mill in good repair for grinding corn, but has neglected and still neglects to do so, whereby the plaintiff has lost the benefit of his right.

Indictment, alleging that John Burns and Patrick H. Burns, both of Dover, and co-partners in business, on, &c., at, &e., “ not being then and there a licensed taverner or retailer, did then and there unlawfully sell one pint of spirituous liquors,” to one B. P. H., contrary to the form of the statute, &c. The defendants demurred, and assigned for cause that the indictment fails to allege that the defendants were not, at the time of the alleged offence, licensed taverners or…

Assumpsit, upon a policy of insurance of a certain brick store of the plaintiff, destroyed by fire on the 21st day of September, 1844.

Trover, for 12,000 staves. Testimony was introduced by the plaintiff, tending to show that during the winter preceding the date of the writ, the defendant agreed to let the plaintiff cut trees on his wood-lot, in Manchester, for staves, at half a cent for each stave, and nothing was said about any credit; that in pursuance of that agreement, the plaintiff, in the months of February and March, 1845, went upon the defendant’s lot, and cut trees and made staves to the number of…

Case eor Slander. The declaration contained several counts, in some of which the plaintiff sets forth words uttered by the defendant, charging the plaintiff with burning his own barns, they being insured at the time, and in other words charging him with burning the barns of the defendant. Plea, the general issue, with a brief statement that the defendant would offer evidence, and prove that the words alleged and proved to have been spoken by him were true.

Foreign Attachment. Thomas Wallace, the defendant, on the 27th day of April, 1846, made a general assignment of his property to the trustee, for ratable distribution among the creditors of the assignor, in payment-of their several demands, and made the oath required by law, that he had thereby assigned, and that it was his intention to place in the hands of the assignee, all his property not exempt from execution, for the purposes named.

Assumpsit, upon an account annexed to the writ, which is as follows: George A. Wheeler to Otis Batchelder, Dr. To balance due on book, 4.16 1842, Sept. 21, interest, 1.83 $5.99 At the trial in the Court of Common Pleas the plaintiff moved for leave to file an amended specification, as follows, to wit: Geo. A. & Geo. W. Wheeler to Otis Batchelder, Dr. 1841, Aug. 24. To 1 calf-skin, 1.75 1842, March 6. To 10 lbs. 6 oz. sole leather, 3.07 1842, Sept. 15.