Volume 21 — New Hampshire Reports

In Equity. The orators are infants under the age of twenty-one years, and children of John B. Sparhawk, who died on the 2d day of April,… Held: where the waiver was not made until after the proof of the will, that the estate vested in the residuary devisees, subject to be devested by the waiver by Mrs. Sparhawk, and her claim of dower, and that in such case she would hold her distributive share by descent, on the principle of relation back, there having notwithstanding been…

In Equity. The following case was stated in the bilL On the 30th day of December, 1783, the Legislature of New Hampshire granted to Enoch Hale, of Eindge, and his heirs forever, “ the exclusive right and privilege of building and keeping a bridge over the .Connecticut, anywhere between the upper end of Bellows Falls and a certain rock in said Falls, and the exclusive right of receiving from any persons who might pass over the bridge, either by themselves or with horses,…

Case. The declaration alleged that. one Bellows made a contract with the plaintiff, by which he agreed to allow the plaintiff the right of entering upon a certain tract of land, and of cutting down… Held: by Lord Kenyon, that an action would lie for preventing certain negroes from coming to trade with the plaintiff, although he had no exclusive right to trade with them. Tarleton v. McG-auley, Peake, 205.

Petition eor a highway. On the 4th day of December, 1848, John Stratton and others presented a petition to the Selectmen of Swanzey, for a new highway, “ beginning near the residence of William Clark, of Swanzey*, and thence running north-westerly to Chesterfield line.” No action was taken upon this petition by the selectmen, until the 18th day of May, 1849, when an order was made by them for a notice upon the land-owners to meet at W. C. Owen’s Tavern, on the 4th day of…

<p>The general rule is, that where a bill in equity is merely for discovery, and the defendant answers and discloses the information sought for, he is entitled to costs against the orator.</p> <p>Semble, that where the orator asks the information of the defendant, and he refuses to give it, and the orator is compelled to file a bill for discovery, the defendant will not be entitled to costs.</p> <p>The case is never brought to a hearing upon a mere bill of discovery, but as soon as the answer is perfected, the defendant is entitled to move for costs.</p>

Petition for a decree of nullity of marriage, prosecuted by the next friend of the petitioner. It appeared, from the evidence, that the’ petitioner resided in Plainfield, in this county, with her parents, was over twenty-one years of age, and had a small property in her own right.

<p>An indictment for perjury, alleged, that the perjury was committed in making oath to a replication to a plea of usury, that the sum of $20, above the legal interest, was not received for the loan of $400. The evidence was, that the respondent delivered to one Sargent, who borrowed the money of Mm, the sum of $380, and received therefor of him a note for $400.</p> <p>Held, that the unlawful interest was received upon the sum of $380, and not upon the sum of $400, and that the indictment could not be maintained.</p>

<p>A deposition, in the caption of which the words “before me,” preceding the name of the magistrate beforfe whom the deposition purports to be taken, are omitted, is incompetent evidence; and if read, in evidence, the verdict will be set aside.</p> <p>The jurat of a deposition or affidavit, must show, by apt words, that the oath was administered by the person subscribing the jurat.</p>

Covenant. The writ was dated January 11th, 1848. The declaration alleged that the plaintiff, on the 25th day of April, 1827, conveyed to the defendant his homestead farm, situated in Wendell, of the value of one thousand dollars; in consideration whereof the said defendant, by his deed or writing obligatory, sealed with his seal of that date, duly executed, and which being lost could not be produced, covenanted and agreed with the plaintiff, “ that he would support and…

Foreign attachment. In answer to the usual interrogatory proposed to the trustee, before the commissioner appointed to take the disclosure, the trustee disclosed as follows, namely: “At the time of the service of the plaintiff’s writ upon me, as trustee of Phineas Walker, I had, in my hands and possession, one yoke of'oxen, one pair of three years old steers, thirty-nine cows and heifers, twenty-seven two years old cattle, eighteen yearlings, twenty-two calves, one bay…

In Equity. The following case was stated in the bill. On the first day of April, 1846, the orators resided in the town of Henniker, where they still live, and were liable, respectively, to pay their proportion of all the legal taxes assessed in the town since the last day of May, 1846.

Trover, for a quantity of writing paper and other articles, alleged to have been converted on the 30th November, 1847. The taking and conversion of the property by the defendant, as also the partnership of the plaintiffs, were admitted; and also that the defendant was a deputy of the sheriff of this county, and took the goods, on a valid execution against the firm of Roby, Kimball & Merrill; of which firm Rufus Merrill had been a partner.

Assumpsit, against the defendant, as indorser of two promissory notes, dated March 2,1848, one for $50, and one for f> 18.30, signed by one John C. Weymouth, and payable to the defendant or order, on demand, with interest. The notes were indorsed by the defendant, in blank, and were so indorsed by him, July 3, 1843, and passed to a Mr. Eastman,'in part payment of an execution which he held against the defendant’s father.

Assumpsit. The plaintiff and defendants are citizens of Massachusetts, and were so when their dealings commenced with the trustee, who is a citizen of this State. Before the suit was brought, there had been various dealings between the defendants and the trustee; and at the time of the service of the writ upon the trustee, he was indebted to them on account, for purchases of goods, as appeared by his disclosure.

Assumpsit, fox' the support of Timothy Ayer, a pauper, supported by Pembroke, but alleged to have a settlement in Allenstown, and to be by law chargeable to that town.

Assumpsit, on a promissory note which it was admitted was given, by the defendant to the plaintiff, for the price of a horse, sold by the plaintiff to the defendant. The defence was, that the horse was warranted sound, and being found otherwise was duly returned, &c. And it was conceded, on the part of the plaintiff, that if the horse, at the time of the sale, was unsound, the action could not be maintained.

Assumpsit, on a promissory note, dated April 3d, 1847, for two hundred dollars, payable to the plaintiff or order, in one year, with interest, signed by said Blodgett, and by said Eaton as his surety. The writ was dated September 25, 1848. Blodgett defended the action on the ground that the debt had been paid by Eaton, after the suit was brought, and before the action was entered; and he called, as a witness, Abraham Bean, the officer who served the writ.

Assumpsit, on a promissory note, dated March 5,1886, for $65.70, signed by the defendant, and payable to William Jones or order, on demand with interest, and by Jones indorsed to the plaintiff. The action was commenced September 25,1848.

Assumpsit. On the 17th day of June, 1846, the defendant was sheriff of this county, and Mark Gillis was one of his deputies ; and on the same day, Gillis, in his capacity as deputy sheriff, sold at auction the equity of redemption of certain real estate, belonging to James Woods, since deceased, for the sum of $3,900, upon an execution in favor of one Wheeler, against Woods.

Ejectment, for a certain tract of land situated in Manchester, containing one half acre, more or less, being part of lot No. 13, on Lowell Street. The writ was dated October 11,1847. Plea — the general issue.

Indictment .for perjury. At the trial in the court below a number of witnesses wére introduced on the part of the government, and also on behalf of the respondent. Held: that the evidence must be material, going to the merits, and not merely impeaching a witness sworn on the trial.

Replevin, for two yokes of cattle, one derric, and one horse-cart, belonging to the plaintiffs. The defendant pleaded, that the articles were the property of one John Mugridge, and were not the property of the plaintiffs. Eeplication, that the articles were the property of the plaintiffs; upon which issue was joined.

Indictment, against “the selectmen of the town of Salem. The indictment alleged that, on the 15th day of May, 1847, there was a school-district numbered seven in Salem, with a school-house established therein by the district; and on that day, sundry legal voters in the district petitioned the selectmen for the time being, stating that they were aggrieved by the location ; and praying the selectmen to appoint a committee to examine, &c.; that, on the 23d day of November,…

The case was referred to H. F. French, Esq., as auditor, from whose report the following facts appeared. Joseph Stevens left one child and heir at law, Lydia Ann ; who was born on the 11th day of March, 1811. She married Reuben Mathes, the appellant, on the 11th day of December, 1881, and died in the year 1844. Her mother, Mrs. Bennett, was appointed her guardian on the 25th day of November, 1817.

The reasons for the appeal were as follows : 1. Because the guardian is not charged with the income of the real estate of Lydia Ann, from March, 1816, to November 22d, 1817, during which time the guardian had the use and income thereof. 2. Because the sum with which she is charged as the income of the real estate, is too small. 3. Because she was allowed too large a sum for the support, education, and maintenance of her ward, and for the expenses of guardianship. 4.

Assumpsit on a promissory note, dated November 16th, 1825, for $131, payable to W. Jones or order, on demand, with interest. The defendant pleaded the general issue, with a brief statement of the Statute of Limitations, and a notice of set-off. The pote had the following indorsements : August 29, 1829, received $8 ; October 2,1833, received $12; August 12,1837, received $30; July 20,1840, received $65; June 18th, 1842, received $25.

Assumpsit on a warranty of a horse. On the general issue, the plaintiffs introduced evidence tending to show, that the defendant offered to sell two horses to Hall, a witness, for $250. Hall said, he did not want them; but if the defendant could warrant the horses sound and right, he could sell them for him. The defendant said, he could warrant them sound and right.

Writ oe entry, in which the demandant counted upon his own seizin as of fee and right, &c., in the usual form. - The tenant filed a plea and confession in the following form: “And the said J. C. comes and defends, &c., and confesses, that the plaintiff is seized of the whole of the demanded premises with the appurtenances, in the plaintiff’s writ and declaration aforesaid mentioned, in his demesne as of mortgage ; and that the plaintiff is seized of one undivided half of…

This case was tried in the court below, at the January term, 1850. At a former term, upon motion, and upon its being shown to the court that a material witness, who had been for some time declining with consumption, was likely to die before the close of the term, it was ordered, that a commission should issue to a magistrate to take the deposition of the witness during the term.

Assumpsit, for goods sold,and delivered. The defendant, with the general issue, gave a notice of set-off. There was no controversy as to the plaintiff’s claim. Held: that upon the general issue the plaintiff is always entitled to the closing argument. Exceptions were taken to the rulings and instructions of the court, by the defendant’s counsel, who moved that the verdict returned for the plaintiff might be set aside.

Assumpsit, for tbe use and occupation of land and buildings of tbe plaintiff’s intestate. It appeared, on trial, that tbe plaintiff’s intestate bad leased tbe property, consisting of a bouse, shop, and land, to one D. Pike, for a year, ending May 1,1845. About tbe middle of April, 1845, tbe defendant bought of D. Pike tbe residue, óf bis term in tbe shop, and entered into possession of it.

<p>Case, against the defendant, as sheriff of the county. -</p> <p>The declaration alleged that the plaintifís sued out their writ of attachment against Eurbush and Blaisdell, returnable to the Court of Common Pleas, in this county, December term, 1847, and delivered the writ to Holcomb, a deputy of the defendant; that Holcomb attached personal property of Furbush and Blaisdell, on the suit, and before the return day sold the same on the writ, according to the statute ; that the plaintiffs, at the August term, 1848, recovered judgment against Furbush and Blaisdell, and on the 25th of August, 1848, sued out a writ of execution on their judgment against Furbush and Blaisdell, delivered the same to the defendant, and directed him to levy on the proceeds of the property sold by Holcomb ; that the defendant levied the execution on the proceeds of the sale, and received the full amount of the debt and costs ; that afterwards the plaintiffs demanded of the defendant the money so received by him on the execution, but he refused to pay; and the plaintiffs claimed the said amount, being $398.28 debt, and $27.63 costs, with legal interest, and also five times the legal rate of interest thereon. There were other counts in the declaration.</p> <p>In a case agreed by the parties, it was admitted, that the allegations of the declaration were true, except'that the execution was never put into Holcomb’s hands, because he had been removed before the judgment against Furbush and Blaisdell was recovered; that no money ever actually came into the defendant’s hands, but only into the hands of his deputy on the writ of mesne process.</p> <p>The plaintiffs, in the assessing of damages, claimed that they were entitled to the amount of the said judgment and legal interest, and, in addition thereto, to five times the legal interest thereon; while the defendant contended that they were to recover only the amount of the judgment and six per cent, interest.</p>

Assumpsit, for money had and received, brought to recover the sum of five dollars paid by one Hanson Evans, Jr., to the defendant, without authority from the plaintiff. The plaintiff offered in evidence the deposition of Hanson Evans, Jr., who testified, that he was the son of the plaintiff, who, in the month of April preceding, received a letter from G-eorge G-.

In Equity. ■ The cause had been prosecuted by an administratrix de bonis non, who married pending the suit. moved, that the representative of the deceased be permitted to come in and prosecute the bill. There is no bill before the Court. By the marriage of the administratrix the bill abated, and there must be a bill of revivor to enable the cause to proceed.

Appeal, from the decision of a justice of the peace. The writ was dated April 24th, 1848, and contained four counts.

Writ oe ENTRY, in which the plaintiffs demand seizin and possession of parts, in common and undivided, in a farm in Tuftonborough, containing two hundred acres of land, and the buildings thereon, and allege a seizin in fee, &c. The parties agree, that the farm contains two hundred acres, and that on the 15th day of July, 1839, the defendant owned one half of the farm in common and undivided. On that day, J. T. Gr.

Indictment, for assaulting and obstructing Enoch Eemick, a deputy-sheriff, in the service of a warrant against said Weed, on a complaint made by one Nancy Pulsifer, for assault and battery.

Trespass quare clausum, for cutting and carrying away a quantity of timber from lot No. 6, in the second range of lots in Chatham, in the month of January, 1848. Plea, the general issue. The plaintiff offered evidence tending to show that he had been in possession of said lot, and also of lot No. 7, adjoining the 'same on the south, for the last thirteen or fourteen years; his buildings being upon lot No. 7.

Case, for maintaining a dam across the Amonoosuc River in Littleton, and thereby causing the water and ice to be thrown back upon the… Held: that the death of the party to whom the license is given is a revocation of the license. 6. Actual notice to H. C. Eedington to remove the dam, before a suit could be brought against him, was necessary. He must be informed that it was a nuisance, and requested to remove it. Conduct evincing dissatisfaction is by no means equivalent.

Assumpsit for money had and received. On the general issue, the plaintiff produced and proved the signature of a note, of which the following is a copy: “August 9,1844.

Assumpsit, for supplies furnished to one Clougb, a pauper, alleged to have his settlement in Bath. The only question in dispute was, whether the tax of 1831, alleged to have been assessed by the defendants upon Clough that year, was legally assessed and paid. The State, county, school and town tax amounted to $3.03, and no exception was taken to the legality of that assessment.

Assumpsit. The case was referred to an auditor, by whose report the facts were stated as follows : The writ contained one count only, which was upon an account annexed, the items of charge amounting to $19.48, and the items of credit to 93 cents. The charges were for services and work as a blacksmith, from August 6th, 1846, to December 12th, 1847.

Assumpsit. The action was referred to an auditor, by whose report, it appeared, that the defendant claimed, as a part of his set-off, the balance of a judgment against the plaintiff. Upon this judgment, Mr. Duncan, one of the attorneys of the Court, claimed a lien for his costs, and also for commissions upon the amount recovered, and these claims were allowed by the auditor.

Indictment, for keeping a disorderly house. The indictment was in the following form: The jurors, &c., present that D. Bailey, &c., on the first day of, &c., and on divers other days and times between that day and the dpy of taking this inquisition at A., &c., with force and arms a certain common, ill-governed, and disorderly house unlawfully did keep and maintain, and in said house for his own gain and lucre, certain evil-disposed persons, as well men as women, of evil…

Complaint, for not entering an action. The defendant, Morse, brought an action of debt against the complainant, Davis, before a justice of the peace, for a penalty for cutting trees. Davis pleaded, that he was in possession of the premises on ■which the trees were cut, under a lease for three years, from Morse to him, and that he cut the trees for fuel, as he had a right to do by the terms of the lease. Morse replied, substantially denying the lease.

Writ of entry for the recovery of one acre of land in Haverhill. Plea, the general issue. The plaintiff’s evidence tended to prove, that in 1838 the premises, with four and a half acres adjoining, were owned by L. M. Kellogg, who in that year agreed' to sell these tracts, five and a half acres, to Abijah Cutting.

Assumpsit. The declaration contained three counts. The first count alleged, that on the 8th of June, 1844, in consideration that the plaintiff would take of the defendant certain notes against Alanson H. Haskell, at and for one thousand dollars, the defendant represented and promised to the plaintiff, that the said notes were well secured by a mortgage on land, upon which there was no prior mortgage, &c. The second count alleged, that on the same day, in consideration that…

Assumpsit, on a promissory note of the defendant, payable to the plaintiff, or order. Plea, the general issue, and notice of set-off, consisting of a promissory note payable to John L. Rix or order, and indorsed to the defendant. The plaintiff’s original writ was dated August 6th, 1849.

Case. The declaration alleged, that upon the plaintiff’s farm in Westmoreland, there was a permanent spring, which supplied the plaintiff’s house and barn with water and irrigated his land; and that the corporation by excavations, &c., diverted the water from its accustomed course, &c., to the injury of the plaintiff.

<p>Case. The' parties agreed to submit this action to the decision of the Court upon the following statement of facts.</p> <p>On the 3d of September, 1849, the plaintiffs’ mare escaped from their pasture in the westerly part of Keene, distant about one fourth of a mile from the railroad, into an adjoining highway which is crossed by the railroad at grade, in lands not owned by the plaintiffs ; and went along in the highway till she came to the crossing, when she turned upon the railroad and passed down it for about one fourth of a mile. She was within the limits of the railroad, by the side of the embankment, w'hen a passenger train came along at its usual time in the afternoon, and at its usual speed.</p> <p>As the train approached, the engineer discovered the mare about ten rods distant, and gave the usual signal by the steam-whistle for breaking up and stopping the cars, and the breaks were applied. The mare immediately went upon the embankment and ran along upon the track for a short distance, was overtaken by the engine, thrown from the track by the cowcatcher down the bank and killed. The train could not have been stopped, after she was seen by the engineer, before reaching her.</p> <p>There was no cattle-guard or fence across the railroad at the crossing where the mare passed from the highway upon the railroad.</p> <p>The mode of preventing animals from passing from highways upon railroads is usually by cattle-guards, so called, across the railroad on each side of the highway.</p> <p>If the Court should be of opinion that the plaintiffs are entitled to recover, judgment is to be rendered for them for such sum as shall be assessed by the jury; otherwise for the defendants for costs.</p> <p>We contend, that by implication from the Rev. Stat. page 276, the corporation is bound to fence the railroad; that cattle-guards or some equivalent fence are usual and necessary at the intersections of railroads with common highways, and cannot be omitted without danger to the lives of passengers in the cars, and to the property transported by them, as well as to animals passing on the roads. The public highways are open to all for the purpose of passing along them, and the plaintiffs’ mare was rightfully there at the time. No question as to the right of adjoining land-owners arises in this case.</p> <p>We contend, that the failure of the corporation to construct the usual cattle-guard at the crossing in question was dangerous negligence, which deprived them of any right they might otherwise have had to run over and destroy the plaintiffs’ mare. The corporation, as occupants, were bound to fence against every thing lawfully in the highway. Tewkesbury v. Bucklin, 7 N. H. Rep. 521.</p> <p>We contend, that we were not bound in law to fence across the railroad at places where highways intersect it. It is enough that the sides of the railroad were fenced. Even if the corporation were required by law to construct cattle-guards or fences at the crossings of highways, this action cannot be maintained, for the reason that the plaintiffs’ mare was wrongfully in the highway. She was not in the service of her owners, or under their control.</p> <p>Since the case of Rust v. Low, 6 Mass. 90, the decisions have been numerous and uniform, that the owner of a close is bound to fence only against cattle which are rightfully in the adjoining close. Thayer v. Arnold, 4 Met. 589, and the authorities there cited. When cattle stray from the owner’s pasture into the highway where the right of soil is in another, they become trespassers. Mills v. Stark, 4 N. H. Rep. 512; Avery v. Maxwell, 4 N. H. Rep. 36. And they are not the less trespassers when they pass from such highway into the close of another.</p>

Motion to set aside an execution. Miller was arrested on the original writ; on the back of which was the affidavit of Naramore, that the defendant in that suit was about to leave the State, &c., being such an affidavit as is required by the Revised Statutes. Miller procured bail, and before judgment was obtained left the State, and has not since returned.

Motion to set aside an execution. Miller was arrested on a writ founded on a contract which was made after March 1,1841. On the back of the writ was the affidavit required by the Revised. Statutes, that the defendant was about to leave the State, &c. Miller was arrested upon this writ, procured bail, and left the State before judgment was rendered, and has not since returned.

Petition, by Kimball Farr against Moses Dudley, praying, the court to determine the amount due to said Dudley on a certain mortgage described in said petition, and upon the same being brought into court to decree that the mortgage be discharged. On the 6th day of February, 1841, one Celatia Farr being seized in fee of the premises described in the petition, conveyed the same by mortgage to one Oscar Cooledge.

Trover. The plaintiff is administrator with the will annexed, on the goods and estate within this State, which were of Jesse S. Spear, late of Boston, in the State of Massachusetts, deceased. The widow of Jesse S. Spear is executrix in the State of Massachusetts of the last will and testament of said deceased. Before and at the time of the death of Spear, the defendant was in possession in this State, of sundry medicines belonging to the estate of Spear.

Moti'on eor, costs, against the assignee of the defendant, Seaver, who was declared a bankrupt after the commencement and entry of this action.

Assumpsit on an account annexed. Two of the items of account were as follows: “ 1846. July 7.

Case against the defendants, — selectmen and assessors of the town of Marlow, ■— for assessing an illegal tax on the plaintiff. The plaintiff resided in Marlow on the 1st of April, 1849, and the tax was duly assessed in that year by the defendants against the plaintiff on a piece of land in that town, in possession of the plaintiff, and claimed by him under the title hereinafter stated.

Assumpsit, on a promissory note, dated August 19, 1849, for fifteen dollars, payable to Charles A. Keen, Jr., or bearer, on or before the first of November, 1849, with interest, and by the payee transferred and delivered to the plaintiff.

Writ of entry, for a tract of land in Unity, being a fifty acre lot in the north range of lots, numbered 300. It appeared, that on the 6th of February, 1832, Luke Smith conveyed this lot and another lot, described as the two west lots of the north range of lot No. 300, formerly owned by Gov. Benning Went-worth, called two fifty acre lots, to D. B. Jones and S. Woodward.

Writ or Entry. The demandant claimed one undivided balf of that part of lot No. 51, in tbe ninth range and fourth division of lots in Chester, laid out to the right of Jonathan Kim-ball, which now lies in Hookset, bounded, &e. Under the general issue the demandant offered in evidence a copy of a record of the charter of the town of Chester, from the office of the Secretary of State.

Trespass. The declaration was as follows: “To answer to J. C. S. &c., in a plea of trespass, for that said F. at A. &e., on the 20th day of December, 1847, with force and arms took and carried away the plaintiff’s two red cows, of the value of sixty dollars, and converted the same to his own use,” &c. A second count, in the same form, alleged the taking on the 25th of December, 1847, and a third count, in the same form, alleged the taking on the 20th, and the conversion on…

Writ oe entry. The demandant claimed the land by virtue of an indenture executed by Aaron Carter and Eliza Carter his wife on the one part, and the said Low on the other, by which the said Aaron and Eliza, in consideration that the said Eliza had assigned and relinquished to the New Hampshire Asylum for the Insane her right of dower in certain lands before owned by said Aaron, conveyed to said Low and his heirs the demanded premises to hold upon trust, that said Low and his…

Assumpsit, against Trueworthy Norris, principal, and Joshua Pervere, George Batchelder, and Joshua Marshall, trustees. The defendant pleaded in abatement, that the writ was made by one Enoch Watson, a deputy of the sheriff, and issue was joined on that fact.

<p>The smallest pecuniary interest in the result of a cause, disqualifies a juror.</p>

Trespass, for breaking and entering tbe close of the plaintiffs, in Groffstown, and carrying away a quantity of tbeir wood and timber. Plea — the general issue. The plaintiffs introduced a deed from John Farmer to themselves, dated March 1,1848, conveying the locus in quo. They then proved, that immediately after the date of their deed they went upon the premises and cut wood and timber thereon.

Replevin for four cows, one two-years old heifer, and one yearling bull. The plea was the general issue, accompanied by a brief statement, setting forth that the defendant was pound-keeper of Amherst in this county, and at the time the writ of replevin was served, the said creatures were legally detained by him as such pound-keeper. The writ was dated September 30th, 1848, and was served on the same day.

Petition, for a highway in Goffstown. It was referred to the road commissioners for the county of Hillsborough at the A.pril term of the Court of Common Pleas, 1849, and at the October term following, a report was made by the commissioners, laying out the road.

Writ or entry. The demandant counted upon a seizin in fee and in mortgage, in the usual form.

Motion, to amend the declaration in the plaintiff’s writ. The declaration alleged, that the defendant was indebted to the plaintiff, in the sum of $75, for balance of account, according to the account annexed to the writ. The account annexed, contained no specification of the items of debt and credit from which the balance resulted, but was in this form: “ To amount due on account, $75.

Trespass, for taking and carrying away goods. The defendant, who was sheriff of the county, pleaded the general issue, and in a brief statement justified the taking by Leonard Rundlett, his deputy, on a writ sued out by James S. Cheney against Orvis B. Perry and Lorenzo D. Perry, partners under the firm of O. B. Perry & Co., returnable to the October term of the Common Pleas for Hillsborough county, A. D. 1848, in a suit in which judgment was rendered at that term for the…

In Equity.. The bill was brought by Rufus Dow against Jonathan, Charles, George and John C. Jewell, Munroe G. J. Tuxbury,.Mary A. Webster, and her husband, William 33. Webster. Held: that such an execution did not convey her interest, but that perhaps her confinnation might now make it good. The defendants do not stand in the position of bond fide purchasers for a valuable consideration without notice.

Marston, executor of the will of Samuel P. Marston, is appellant, and Andrew B. Marston is appellee.

•' In Equity. The bill was brought by Nathaniel Ladd against. Daniel W. Ladd, executor of the will of Lydia Watson, Mat-' thew J. Harvey, executor of the will of Louisa L. W. Harvey, Dudley L. Harvey, Nathaniel Gr. Harvey, and William Plumer. The following case was stated in the bill: On the 15th day of November, 1839, Lydia Watson made her will, and died on the 17th day of April, 1847. Her will was proved on the 12th day of May, 1847.

Trespass, quare clausum fregit. On the trial in tbe Court of Common Pleas, tbe plaintiff offered evidence of bis title to tbe premises, under tbe general issue, and it was then agreed by the parties that tbe locus in quo was part of lot No. 68, in the second part of tbe second division, of lots in Chester, laid out to tbe original right of Philemon Blake.

Petition eor partition. The original petition is dated on the 25th day of December, 1845. James A. Pickering, Joshua 33. Pickering, and Martha P. Pickering, all of Newington, allege that they are seized in fee and in common with Prank T. Pickering, of three parcels of land, that James and Joshua own one third part thereof each, and that Martha and Prank each own one sixth.

for this county, accepting the report of the commissioner of insolvency upon the estate of Sarah Gardner, the widow of William Gardner. James W. Emery, Esq., was appointed administrator of the estate, but resigned his trust, and Albert R. Hatch, Esq. was appointed administrator de lords non. Abraham Wendell was permitted by the court to appear and prosecute the appeal.

Trespass, for an assault and false imprisonment alleged to have been committed on the 27th day of November, 1846. Held: and the door was then locked and kept locked until the day of the meeting, and another copy of said warrant was posted up at Blake’s tavern in said Raymond ; which copies were posted up, as aforesaid, on the Monday two weeks before the day of the meeting, which was on Tuesday.

<p>Assumpsit, on a promissory note, dated May 4tb, 1849, signed by the defendant, for the sum of §250.16, payable to one Joshua Getchell or order on demand, and by said Getchell indorsed to the plaintiff. The writ was dated May 7th, 1849.</p> <p>The defendant pleaded in abatement as follows: “And tbe said Charles F. Chase comes and defends, &c., when, &c., and prays judgment of the plaintiff’s writ aforesaid, and that the same may abate, because he says, that on the 4th day of May, 1849, one Joshua Getchell, being the owner and holder of a certain promissory note against the said Chase, bearing date on the 4th day of May, 1849, for the sum of two hundred and fifty dollars and sixteen cents, and payable to the said Getchell or his Order on demand with interest, purchased out of the clerk’s office of the Court of Common Pleas for said county, a writ of attachment in due form of law against the said Chase, returnable to this present term of this Court, and therein declared against him in a plea of the case, and for the same cause of action in the plaintiff’s declaration aforesaid mentioned, and caused the property of the said Chase to be attached thereon, and the said Chase says, that at the time of the purchase of the said writ of the said Getchell, to wit, on the 4th day of May, 1849, the said Getchell was the lawful owner and holder of said note, and lawfully commenced said action for the purpose of recovering judgment against him for the contents of said note, and that at the time of the commencement of this action of the plaintiff against the said Chase, to wit, on the 7th day of May, A. D. 1849, the said action of tbe said Getchell above mentioned, was still pending and undetermined, and the said Chase, named in both actions aforesaid as defendant, is the same person, and not other or different, and that the said Bennett, named as plaintiff in this action, is the assignee or indorsee of the note aforesaid of the said Getchell, named as plaintiff in the said action of the said Getchell first above mentioned, and that this action of the plaintiff is brought to recover judgment against the said Chase for the contents of the same note, to recover which the said action of the said Getchell against him was brought, and not other or different ; and this he, the said Chase, is ready to verify : Wherefore he prays judgment of the plaintiff’s writ aforesaid, and that the same may be abated, and for his costs.”</p> <p>To this plea the plaintiff interposed the following demurrer: “ And the plaintiff says that the said plea of the said defendant is not sufficient in law to abate his, the plaintiff’s said writ, and that he is not by law bound to answer the same; and this he is ready to verify. Wherefore he prays judgment that the defendant may answer further to the said writ,” &c.</p> <p>And the plaintiff shows to the Court the following causes of demurrer.</p> <p>1. That it is not in said plea alleged that the commencement or pendency of said alleged prior suit of Joshua Getchell against said Chase, appears by the record or files of said Court of Common Pleas.</p> <p>2. That it is not in said plea alleged that said former suit of the said Joshua Getchell against the said Chase was pending at the time of the commencement of this present action, or at any time.</p> <p>8. That it is not in said plea alleged that the said Joshua Getchell, the plaintiff in said former suit, and the said John S. Bennett, the new plaintiff, are one and the same person, nor that the parties in said former suit and in this present.suit, are the same persons, nor even that the parties in interest in the two suits are the same persons.</p> <p>4. That said plea is uncertain in this, that it alleges that the said Bennett is the assignee or indorsee of said note, leaving it uncertain which he is, assignee or indorsee.</p> <p>5. That it appears in and by said plea, that the plaintiff in said former action, namely, said Joshua Getchell, and the said John S. Bennett, the new plaintiff in this suit, are not one and the same persons, but are other and different.</p> <p>6. That it is not in said plea alleged that said writ, sued out by said Getchell against said Chase, was ever served upon, or pending against, said Chase, but only that his property was attached thereon.</p> <p>7. That it is not in said plea alleged that said John S. Bennett, at the time his action against the said Chase was commenced, had any knowledge of the commencement of the said former suit of said Joshua Getchell against said Chase.</p> <p>8. Also that said plea is, in other respects, uncertain, defective, informal, and insufficient.”</p> <p>To this demurrer there was a joinder, and the questions thus presented by the pleadings were transferred to this Court for determination.</p> <p>I. The plea is bad, in that it does not allege that the commencement or pendency of the former suit, or the identity of the cause of action in the two suits, appears^, of record. To this point we rely,</p> <p>1. On the fact that the forms or precedents, in all the books, require both these allegations, with a “proutpatebper recordumP 2 Chit. Plead, (ed. 1809,) 418 ; 3 Chit. Plead, (ed. 1840,) 904 ; 1 Saund. Plead. & Ev. 18; 1 Lillie’s Entries, 7; Story’s Plead. 120, 121. It should be so pleaded before the original writ is entered on record. Armitage v. Rowe, 12 Mod. Bep. 91. Where the plea contains a “prout patet pier recordum," it is sufficient to satisfy such plea if the writ be produced. 1 Chit. Plead, (ed. 1840) 462.</p> <p>2. The plaintiff has a right to oyer of the record of the former suit, and has also the right to reply to such a plea, “ nul tiel record;" neither of which can be had unless the plea contains these averments, and that they appear of record. 1 Saund. Plead. & Ev. 18; 1 Comyns’s Dig. Abat. H. 24; 1 Bacon’s Abr. Abat. M. 24; Clifford v. Cony, 1 Mass. 602, where it is said, “ as there is no reference to the record, and as the party has the right of replying no such record, which he cannot do in this case for want of such reference in the plea, the plea is bad.”</p> <p>II. To the second cause of demurrer, we say,</p> <p>1. The case does not present our objection precisely; the words, “in court,” should be inserted after the word “pleading” in the first line of the, third page of the printed case. But every objection may be taken advantage of on general demurrer. It is not necessary to assign any special causes in demurrer to pleas in abatement. 1 Chit. Plead, (ed. 1840) 465; Clifford v. Cony, 1 Mass. 502.</p> <p>2. It is necessary to aver that the former action was pending in court at the commencement of the subsequent suit. 1 Chit. Plead, (ed. 1840) 454; Commonwealth v. Churchill, 5 Mass. 180 ; Comyns’s Dig. Abat. H. 14, 24; Bacon’s Abr. Abat. M. See also all the forms or precedents cited above.</p> <p>III. To the third and fifth causes of demurrer, we say, it is perfectly clear, that unless the parties to the two actions are the same, this plea must be held bad; even though the cause of action is the same. In 1 Saund. Plead. & Ev. 20, it is said, “It is no plea, that another action is depending for the same cause, at the suit of another person.” 2 Term Rep. 512; Comyns’s Dig. Abat. H. 24, or against another person, Hob. 137.</p> <p>This plea cannot be sustained, unless the plaintiff be the same in both actions. 1 IT. S. Dig. p. 7, § 160 ; Logs of Mahogany, 2 Sumner, 589 ; Davis v. Sunt, 2 Bailey, 412.</p> <p>To an action brought by an indorsee of a promissory note, the defendant pleaded in abatement the pendency of a prior action against him upon the same note, brought by the payee of the note in his own name while he was owner of the note, and before any indorsement of it had been made. Seld, that the plea was insufficient. 4 U. S. Dig. p. 3, § 50; Thomas v. Prulon, 17 Yerm. Rep. 138.</p> <p>The rule is, whenever it appears of record that the plaintiff has sued out two writs against the same defendant, for the same thing, the first not being determined, the second shall abate ; but it must appear plainly to,be for the same thing and between the same parties. 5 Dane’s Abr. 712, ch. 176, § 1, art. 14, and authorities there cited.</p> <p>IY. To the sixth cause of demurrer we insist on the position, that an action is not pending in the sense required to abate a subsequent action, unless the writ has been served on the defendant. The statute points out distinctly in what such service shall consist. The attachment of property is not that service. Nelson v. Swett, 4 N. H. Rep. 256. So an attachment by trustee process will not abate a subsequent writ for the same cause. Winthrop v. Carlton, 8 Mass. 456 ; Com. Dig. Abat. H. 24. Until the writ has been served on the defendant, the plaintiff may mate alterations in it and not be guilty of forgery. Society for Propagation of the Gospel v. Whitcomb, 2 N. H. Rep. 230; Sloan v. Wattles, 13 Johns. 158.</p> <p>In Yermont it is held, that the writ must be served and returned before an action is to be considered as commenced. Pay v. Lamb, 7 Yerm. Rep. 426. So in Connecticut. Perkins v. Perkins, 7 Conn. 558. So in Massachusetts. Commonwealth v. Churchill, 5 Mass. 180.</p> <p>Rut, on principle, this plea never can prevail, except in cases where the latter suit is vexatious. Gould’s Plead. 285, § 125. And in this case, the plaintiffs being different persons, no such vexation can be inferred, and none is suggested in the case.</p> <p>The general doctrine is well settled, that the pendency of a prior action is a good cause to abate a subsequent writ for the same cause of action. It is unnecessary to cite authorities in support of this proposition.</p> <p>Another principle well settled is, that a demurrer admits all the facts stated in the declaration or plea which is demurred to. Consequently the demurrer in this case admits all the facts alleged in the plea. It is alleged in the plea that Getchell, being the owner of a certain note against the defendant, commenced an action against him upon the note in due form of law, and caused his property to be attached thereon; that, at the time of the commencement of this action of the plaintiff, the said action of Getchell was still pending and undetermined; and that this action of the plaintiff against the defendant was upon the same note, and for the same cause of action, that Getchell’s was. The demurrer therefore admits these facts. It cannot now be denied or controverted by them, that GetchelPs action against the defendant was pending when this action was commenced, nor can it be said by them that Getchell’s writ had not been served upon the defendant, so as to be pending against him. It is not necessary, and is not usual in pleas of abatement, to allege that the writ has been served upon the defendant, or that his property has been attached. The principal matter alleged is, that an action had. been commenced and was pending for the same cause ; that is the whole gist of the matter. If they deny that an action was pending, they should reply specially that no such action was pending. The defendant could then take issue upon and try that question. But they demur to the plea, and thereby admit the pendency of the prior action as alleged. It does not appear whether a summons was left or not, and it is immaterial in this case.</p> <p>Upon the well-settled principle, that the pendency of a prior action is a good cause to abate a subsequent writ for the same cause, it would seem that the pendency of Getchell’s action is good cause to abate this writ.</p> <p>We think that the question, when an action is so pending in this State as to abate a subsequent writ for the same cause, does not properly arise in this case, inasmuch as the demurrer admits the pendency of the prior action, as alleged. But if that matter is considered, our position upon that point is, that an action is pending in this State, so as to abate a subsequent writ for the same cause, when the writ has been served by an attachment of the defendant’s property.</p> <p>The action may be said to be pending, for some purposes, from the date of the writ; but it is said that., until some service be made of it, the writ is under the control of the plaintiff, and may bó altered or destroyed at his pleasure. But when the plaintiff has put his writ into the hands of an officer, and caused the property of the defendant to be attached upon it, it is no longer within the power of the plaintiff; it is then in the custody of the court, and beyond the control of the plaintiff, and he cannot then alter or withdraw it. Any alteration in the writ after that time would be a forgery. Glendenin v. Allen, 4 N. H. Rep. 385.</p> <p>According to the principles of that case, the action of Getchell was pending when he caused the defendant’s property to be attached on his writ. He had then elected to proceed with his suit; the defendant had become a party, and had acquired rights in the suit. His property had been attached and taken from him. It can make no difference whether the defendant had received a summons or not. The reasons for holding the action pending after his property has been attached are full as strong as they are for so holding after he has received a summons. Society for Propagation of the Gospel v. Whitcomb, 2 N. H. Rep. 281; Robinson v. Parley, 5 N. H. Rep. 225.</p> <p>In Bacon’s Abridgment, tit. Abatement, K., it is said, that ei the law abhors multiplicity of actions, and therefore whenever it appears of record that the plaintiff has sued out two writs against the same defendant, for the same cause of action, the second writ shall abate; for if it were allowed that a man should be twice arrested, or twice attached by his goods for the same thing, by the same reason he might suffer in infinitum ; and it is not necessary that both should be pending at the time of the defendant’s pleading in abatement, for if there was a writ in being at the time of suing out the second, it is plain that the second was vexatious, and ill ab initio.”</p> <p>*The reason here assigned for abating the second writ is, that a man shall not be twice vexed, or twice attached by his goods for the same cause. Now when a man has been once sued and had his goods attached, it is plain that a second suit for the same thing is vexatious, whether the first action has been entered in court or not, or whether a summons has been left or not with the defendant. It is just as vexatious in one case as the other, and the reason for abating the second writ applies with equal force where the goods have been attached merely, as where the first action has been entered.</p> <p>The object of the law is to protect defendants against vexatious suits † that object cannot be accomplished in any other way than by holding that, after the plaintiff has made his election and once attached the defendant’s goods, he shall not be allowed to commence another action for the same cause. Davis v. Dunklee, 9 N. H. Rep. 545 ; Judge of Prolate v. Colcord, 2 N. H. Rep. 36.</p> <p>We will now consider the special causes of demurrer.</p> <p>1. We contend that it is not necessary to allege in the plea, that the commencement of the first action appeared by the records and files of the court, and for the reason, that the issuing of a writ is not a matter of record. According to our practice, the clerk furnishes attorneys with blank writs, and they fill them out as they have occasion, but there is no record made of the issuing of the writ. How then can it be necessary to allege in the plea, “ as appears by the records and files of the court,” when it does not so appear, and never does by our practice ? We believe sufficient is alleged in the plea to show that the action had been duly commenced and was pending, and that is all that is necessary.</p> <p>2. We say that it is alleged in the plea, that the action of Getchell was pending at the time of the commencement of the present action.</p> <p>3. We contend, that it was not necessary to allgge in the plea that the plaintiffs in the two actions are the. same persons, nor that the parties are the same in interest. The true test is, whether the cause of action is the same in both suits, and if it is, the second action is abatable, because it is just as vexatious to the defendant as if it had been brought by the same plaintiff. The reason of the rule applies with all its force to cases of this kind. In Bacon’s Abridgment, tit. Abatement, K., it is said : “ The law is so watchful against vexatious suits that it neither suffers two actions of the same nature to be pending for the same demand, nor even two actions of a different nature.” And in the notes, “ Therefore it is a good plea in trespass that the plaintiff has brought replevin for the same thing, because in both cases damages are to be given for the caption.” “ In trespass against two defendants, they both pleaded in abatement another bill of trespass against one of them, held, plea good as to both.” It is not necessary, therefore, that the parties should be the same in both actions, nor that both actions should be of the same nature.</p> <p>In Commonwealth v. Churchill, 5 Mass. 174, it was held, that the pendency of a qui tam action might be pleaded in abatement to an indictment for the same penalty. It was objected in that case that the rule applied only to cases where two writs are sued for the same cause by the same plaintiff; but Chief Justice Parsons says, “ The reason of the law applies to these cases, which is to prevent a man from being vexed twice for the same cause, and the principle, by applying the rule, extends to these cases.” The bringing of the second action in the name of the indorsee is a mere attempt to evade the law. It can make no difference in principle whether the plaintiffs are the same in both actions, or different persons. The effect upon the defendant is the same in each case.</p> <p>There was no necessity of this second suit by Bennett, because Bennett was entitled to the action commenced by Getchell. When Getchell transferred his note to Bennett, he transferred the action with it. The action was an incident to the debt, and when the debt was assigned the action passed with it, and Bennett had the right to prosecute the action in Getchell’s name, even without the consent and against the will of Getchell.</p> <p>4. We contend, that it is immaterial whether it be assignee or indorsee. If the word assignee only had been used, it would have been good; and so if the word indorsee only ; and if both words, assignee and indorsee, had been used, it would have been good. The meaning is the same whether it be assignee, or indorsee, or both.</p> <p>5. The remarks made upon the third cause of demurrer will apply to this.</p> <p>6. We contend, that it is sufficiently alleged in the plea, that the writ had been served. It is not necessary to say in so many words that the writ, was served, on the defendant. We state what has been done, and that amounts to a service. The court will draw the inferences of law from the facts stated. But we contend further, that it was not necessary to allege in the plea, that the writ had been served upon the defendant, or that his property had been attached. The material matter necessary to allege in the plea was, that the prior action was pending when this action was commenced, and that is fully and distinctly stated.</p> <p>7. We contend, that it is not necessary to allege in the plea that Bennett knew, at the time of commencing his action, that Getchell had commenced the former suit. But if he did not know it, and that is deemed material, they should have replied that matter specially, so that the defendant could take issue upon it. They cannot take advantage of it upon demurrer.</p>

Assumpsit, upon the alleged breach of a marriage contract. There were two counts relied upon in the declaration. The first alleged mutual promises to marry upon request, in the usual form of such counts, and that the defendant on the 1st of March, 1846$ and before action brought, married another woman.

Appeal, from the judgment of a justice of the peace. The action was brought to recover the plaintiff’s share of the surplus revenue money in the possession of said town.