Volume 22 — New Hampshire Reports

Replevin, for a two-borse wagon. The defendant pleaded that, at the time when the taking is alleged, the property of the wagon was in one Nathaniel R. West. The plaintiff replied that the wagon was his property ; and on this issue was joined. The defendant being a deputy sheriff, attached the property as the property of West, on a writ in favor of R. Kittredge, a creditor of West.

Trespass for breaking and entering the plaintiff’s bouse in Exeter, and throwing bis furniture out of the bouse upon tbe ground, and expelling and keeping out tbe plaintiff and his family from the bouse. Plea, tbe general issue, with a brief statement that tbe bouse was tbe close of tbe defendant, and that tbe plaintiff not being then in tbe actual possession thereof, the defendant entered and carefully removed tbe property, doing no unnecessary damage.

<p>A party asking insurance in a company whose by-laws require that any other insurance upon the property should be assented to by them, and limit their liability to a ratable share of any loss, in proportion to the whole amount insured, is not bound to give any details relating to such insurance, unless specially required by the by-laws.</p> <p>If such party represent the property to be insured in a particular way, and the company insure upon such representation, he will not be permitted to show that the fact is otherwise.</p>

Assumpsit, for money had and received by the defendant, to the use of M. W. Pierce, the plaintiff’s testator. The case was submitted for the opinion of the Court upon an agreed statement of facts, in substance as follows. The testator sold land in Stod- dard to one Tuttle, who resided in Hillsborough, taking back a mortgage for a part of the purchase-money.

Assumpsit on a policy of insurance. The defendants pleaded in abatement that, at the time of the commencement of the plaintiff’s suit, another action was pending for the same cause between the same parties in the Circuit Court of the United States for the District of New Hampshire, and was still pending; that the plaintiff’s demand in that suit amounted to five hundred dollars ; that he was a resident in the State of Massachusetts, and that the Circuit Court had jurisdiction.

Debí, by Johu Baker and Nathaniel Baker, against Nathaniel A. Davis and Benjamin Wadleigh on a judgment for $401.59 debt and cost, recovered in the county of Merrimack, March Term, 1845. Plea, that on the 4th of April, 1845, the plaintiffs sued out their writ of execution and caused execution on said judgment to be done in full satisfaction thereof, and said execution to be returned fully satisfied.

Motion por costs. It appeared that on the 13th of October, 1848, the plaintiff assigned all his property, including the demand sued in this action, for the benefit of his creditors, under the laws of this state ; that he had no property, except that the creditors granted his household furniture to his wife to induce her to release her dower in the real estate.

Debt on a judgment. The defendant pleaded his discharge in bankruptcy.

Case, for slanderous words; plea, the general issue. The declaration contained three counts, and the jury returned a general verdict for the plaintiff. Held: esteemed, and reputed to be of good name, character and reputation, as well among a great many of the citizens of said State as among all her neighbors and acquaintances, and during all that time hath never been guilty, nor justly suspected of having been guilty of any hurtful or disgraceful crime.

Indictment, under the 8th section of chap. 217, of the Revised Statutes, for obstructing' Benjamin S. Clifford, collector of taxes for the town of Epping, in the discharge of his duty.

Assumpsit, to recover the price of a load of potatoes. The writ was dated January 5, 1848. Plea, the general issue. It appeared that the plaintiff owned a farm in Epping, in this county, and that one West was his agent for selling the crops that grew on it. The defendant resided in North Hampton and was engaged in buying and selling potatoes in that town.

The complaint was dated November 6th, 1847, and was for default in not doing militai'y duty on the 22d of September, 1847, at 6 o’clock, A. M., on parade, at or near the dwelling-house of ;Colonel Bumford, in Barrington, in the 6th Company of Infantry in the 25th Regiment.

To prove the limits of the military company, in which the defendant was alleged to be liable to do military duty, the plaintiff produced a book, which the Adjutant of the regiment testified was the orderly book of the regiment, and in which there was entered an order of the field officers prescribing the limits of this company. It was not pretended, that this was an original order, and it was not certified to be a copy or record of any order.

Assumpsit, upon an account annexed, for labor and services. The defendants pleaded the general issue. Upon the trial, the defendants offered evidence, showing the manner in which the business was carried on in the brick yard in which the plaintiff labored, as tending to show that the interests of the two defendants . in the yard and business were entirely separate.

Assumpsit. The writ contained two counts.- The first was founded upon a promissory note, dated July 31st, 1848, signed by the defendants jointly and severally, for one hundred dollars, payable to… Held: that if the jury believed the evidence, the plaintiff was entitled to a verdict. To this opinion, the counsel for Clements excepted. A verdict was found for the plaintiff, which the defendant moved might be set aside, and a new trial granted, on account of said exceptions.

Assumpsit. The plaintiff declared, 1. For his labor and services in digging and removing earth for the defendant, - $75.00 2. For work and labor generally, 70.00 3.

Debt. The action was commenced before a justice of the peace, by the plaintiff, as commanding officer of a militia company, to recover a forfeiture of two dollars, alleged to have been incurred by the defendant, for not returning, under oath, an order issued by the plaintiff to him, as a private of said company, to warn one Edgerly to appear at a regimental muster. The declaration did not allege that there was no sergeant of the company, except the orderly sergeant.

Assumpsit for money had and received, and upon an account annexed for two charges, for the use of a horse and carriage. The plaintiff moved to amend the writ by adding a count, “ that the defendant, on the 27th of January, 1848, by his note of that date, for value received, promised the plaintiff to pay him or his order, one brass-mounted harness,” &c.

Motion eor costs. The principal defendant was defaulted. The trustee disclosed, that he owed a negotiable promissory note, made payable to the defendant. The defendant was thereupon summoned into court under the statute, and made answer, that he indorsed and transferred the note to a third person, before the service of the writ, in good faith, in part payment for a debt due to said third person. The defendant then moved for costs.

Trespass, for breaking and entering the plaintiff’s close in Somersworth, treading down the grass, &c., and taking and carrying away the plaintiff’s horse, and converting the same, &c. The action was tried upon the general issue; and the principal controversy was in relation to the property in the horse.

Appeal, from the judgment of a justice of the peace, before whom the principal defendant was defaulted. Charles French and Charles Yorke, were summoned as trustees.

Assumpsit. The declaration contained three counts; tbe second, for money had and received, $120 ; tbe third, for $800, tbe price of land and real estate bargained and sold by tbe plaintiff to tbe defendant on tbe 5tb day of September, 1843.

Writ or Entry. The following facts were agreed to by the parties. James Jewett, late of Alton, once owned the demanded premises, known as the David Wentworth farm.

<p>Appeal, by the administrator from the decree of the Judge of Probate, accepting the report of the commissioner on the estate of Sarah Burleigh, wife of the plaintiff, whereby a portion of the claim of the plaintiff was allowed.</p> <p>Upon an appeal being taken, and notice thereby given, according to statute, the plaintiff, Daniel Burleigh, represented to the Judge of Probate that he had been notified “by Jonathan Coffin of Alton, administrator of the goods and estate which were of Sarah Burleigh, wife of Daniel Burleigh aforesaid,” that he had filed his petition claiming an appeal from the decision of the commissioner; wherefore the said plaintiff filed his declaration agreeable to the statute in such cases provided.</p> <p>The declaration was as follows: “ For that Sarah Burleigh, late of Sanbornton, aforesaid, deceased, at Gilford, being indebted to said Burleigh during her lifetime in the sum .of one thousand and fifty-one dollars and sixty-four cents, according to the account hereto annexed, in consideration thereof then and there promised to pay him that sum on demand; yet, though requested, the said Sarah Burleig never paid the same in her lifetime, nor has her administrator paid the same since heij’ decease.”</p> <p>The account annexed contained twenty-three items, reaching from 1824 to 1848, most of them for expenditures in carrying on the farms of the said Sarah, and repairing the buildings thereon. Also for expenses and costs on a reference relative to said farms, and a bond given by himself and wife to pay certain moneys required to be paid by the referees. The account was headed, — “Account of Daniel Burleigh against the estate of his wife Sarah Burleigh, lately deceased.” The last item in the account was stated to be, “ a tract of land, forty acres, part of my homestead, valued at $400, conveyed to my wife before marriage, without consideration.” The declaration proceeded as follows : Also for that the said Sarah Burleigh at Gilford, during her lifetime, being indebted to the said Daniel Burleigh in the sum of one thousand and fifty-one dollars and sixty-four cents, for labor and services before the decease of said Sarah, done and performed by the said Burleigh, for the said Sarah Burleigh, at her request, in consideration thereof, then and there promised the said Daniel to pay him that same sum on demand. Yet though requested, the said Sarah never paid the same in her lifetime, nor has her administrator paid the same.</p> <p>Also in a plea of the case, for that the said Sarah Burleigh, during her lifetime, being indebted to the said Daniel Burleigh in the same sum, for so much money before the decease of the said Sarah, paid, laid out, and expended by the said Daniel for the said Sarah at her request, in consideration thereof, the said Sarah then and there promised the said Daniel to pay him that sum on demand. Yet, though requested, the said Sarah never paid the same in her lifetime, nor has her administrator paid the same since her death.</p> <p>Also, in a plea of the case for that the estate of the said Sarah Burleigh, at Gilford, aforesaid, on the fifth day of June, 1848, being indebted to the said Daniel in the further sum of ten hundred fifty-one dollars and sixty-four cents, according to the account hereto annexed, and in consideration thereof, then and there promised the said Daniel to pay him that sum on demand. Yet, though requested, the said administrator has not paid the same.</p> <p>Also, in a plea of the case, for that the said Sarah before her intermarriage with the said Daniel, at Sanbornton, aforesaid, in consideration that the said Daniel would convey to her, the said Sarah, a certain tract of land situated in said Sanbornton, she, the said Sarah, would pay him therefor the sum of four hundred dollars; and the said Daniel avers that he did convey the same land to the said Sarah before his intermarriage with her, and in consideration thereof she then and there promised the said Daniel to pay him that sum on demand. Yet, though requested, the said Sarah did not pay the same to the said Daniel before her intermarriage with the said Daniel nor during her lifetime ; nor has her administrator since her decease.</p> <p>Also, for that the said Sarah, at Sanbornton aforesaid, before her decease, and during her intermarriage with the said Daniel, in consideration that the said Daniel would make certain improvements, and erect certain buildings upon the lands of the said Sarah, which she held in her own right, and defend certain suits growing out of the said lands held in the right of the said Sarah aforesaid, and pay certain sums of money which the said Sarah was liable to pay in consequence of said lands and suits, she would pay him the same sums and for the said improvements and buildings on demand. And the said Daniel avers, that he has made divers permanent improvements upon the lands of the said Sarah, during his intermarriage with the said Sarah, to the value of four hundred dollars, and has erected and repaired divers buildings on the said lands, to the value of three hundred dollars, and has paid over for the said Sarah divers sums, as aforesaid, to the amount of three hundred and fifty dollars, and has bestowed his own time and care in and about the said business as aforesaid. Yet, though requested, the said Sarah never paid the same in her lifetime, nor has her administrator since her decease, nor either of them.</p> <p>Also, for that the estate of the said Sarah, at Gilford, on the fifth day of June, 1848, being indebted to the said Daniel in the further sum of ten hundred dollars for labor and services done and performed by the said Daniel upon the estate of the said Sarah before her decease and since, in consideration thereof, then and there became liable to pay the said Daniel the said sum on demand. Yet, though requested, the said administrator has not paid the same.</p> <p>Also, in a plea of the case for that the estate of the said Sarah, at Gilford, aforesaid, on the 5th day of June, 1848, being indebted to the said Daniel in the further sum of ten hundred dollars for so much money paid, laid out, and expended for the benefit of and upon the estate of the said Sarah, and in consideration thereof, then and there became liable to pay the said Daniel the said sum on demand. Yet, though requested, the said administrator has not paid the same, but neglects it.</p> <p>To this declaration there was a general demurrer and joinder; and the questions arising upon the case were transferred to this Court for determination.</p> <p>This is an appeal by the defendant from the report of a commissioner of insolvency upon the estate of Sarah Burleigh. The claim of the plaintiff, allowed in part by the commissioner, was, as appears by the entitling of the appeal and declaration, against the estate of the intestate, who was his wife, against whom he files his declaration founded upon an account annexed, for money had and received, &c.</p> <p>The defendant believes that, upon familiar and elementary principles, it is clear that no such action will lie. No case can be found of an appeal from the report of a commissioner, where the case, as stated by the plaintiff in his declaration, proceeds upon any other principles than any other suit at law, unless by force of some express statute provision.</p> <p>The incapacity of a married woman to contract either with her husband or others, or to be made a party, without him, to any suit, is recognized in all the elementary works treating upon the subject. 1 Black. Com. 442; Miller v. Miller, 3 Wms. 357 ; 1 Bac. Ab. 286, Baron and Feme.</p> <p>A declaration against husband and wife for money lent to the wife at her request, was held bad on error. Stone v. McMain, 1 Moore & M. ; 7 Taunt. Rep. 432 ; 4 Price, 48. A declaration against them for a debt of the wife, before marriage, alleging a promise by the wife, after marriage, was held bad. Morris v. Norfolk, 1 Taunt. Rep. 212.</p> <p>A feme covert is not bound by her assent to a conveyance of her husband. Jiang eley v. Spring, 8 Shepl. Rep. 130.</p> <p>If the husband assents to a partition of real estate, by which his wife receives more than her share, and, to equalize the partition, he pays money to her cotenants, he acquires no title himself in the lands thus set off, except what his marital rights confer upon him. Campbell v. Wallace, 12 N. H. Rep. 362.</p> <p>Even in equity, the idea of their legal identity prevails, except in a few excepted cases. 2 Story Eq. 596.</p> <p>These, and many other cases that might be cited, show, it is believed, that neither upon the principles regulating the rights growing out of the relation of husband and wife, nor by the rules of pleading, can the present proceeding be sustained.</p> <p>I. A declaration may be sufficient to entitle the plaintiff to judgment on a demurrer thereto, though a portion of the counts are bad. Sever/ v. Slacldin et al. 2 Mass. 541; Harrison v. McIntosh, 1 Johns. 385; 1 Chitty on Pleading, 685, and cases there cited; Douglass v. Satterlee, 11 Johns. 16.</p> <p>The plaintiff claims judgment upon the demurrer, if any count in his declaration is good.</p> <p>II. The promise in the fifth count is alleged as made before the marriage between the said Sarah and Daniel, and for a valuable consideration. This is supposed to be sufficient both in equity and at law. The marriage does not annul the contract, it only places it in abeyance. The -wife, before marriage, received the property, promised to pay, and has not paid. All this the defendant admits.</p> <p>The promises in the first three counts are not alleged as made at a time when they could not be legally made. They are not therefore bad. They are presumed to be good, unless the contrary appears.</p> <p>III. The remaining counts in the declaration may not be strictly legal at common law. The statute contemplates that claims against the estate of deceased persons, should, to a certain extent, be paid on equitable grounds, and not be construed by the strictness of the common law. The party may be admitted as a witness at the election of the commissioner. Rev. Stat. chap. 162, § 6.</p> <p>The commissioner shall adjust and allow all just claims which the deceased owed. Rev. Stat. chap. 162, § T. The creditor may exhibit any just claim and the commissioner shall allow the same. The intention of the statute would seem to be, that the Court, to whom an appeal might be taken, should be governed by like just principles. If so, the form of the declaration is not so necessary; a simple allegation of the facts which show a just demand is all that would seem to be necessary.</p>

Trespass, for breaking and entering tbe plaintiff’s close in Ossipee, and cutting down trees, &c. Tbe defendant, under the general issue and a brief statement, justified as the servant of one Thompson, who was, as he alleged, the owner of the premises in question. It appeared that the plaintiffs and Thompson were owners of adjoining lands, and the controversy related to the position of the line between them.

Trespass, for taking and carrying away a yoke of the plaintiff’s oxen. Held: that the signature of the assessors to it was essential. The decision proceeds upon the ground, that the assessment is a distinct, independent act, which must be completed and recorded before the issuing of the warrant.

Petition for a new highway in Conway, Eaton, Freedom, Effingham, and Ossippee.

Replevin, for certain cattle alleged to have been illegally taken and impounded by the defendant. The defendant avowed the taking in the westerly half of lot number 50, in the south division of lots in Eaton, in this county; and set forth in his avowry that said westerly half was his soil and freehold ; that the cattle were there feeding upon his grass &c., and he impounded them as he well might; and concluded by praying judgment for his damages, &c., to be adjudged to him.

<p>Assumpsit, upon an account annexed to the writ.</p> <p>The defendants were Ebenezer Stevens, Henry S. "Walker, William Stevens, Joseph Stevens, John Stevens, George Hanaford, Greeley Hanaford, and John Mussey, alleged to be partners under the firm of Stevens, Walker, & Co.</p> <p>It was admitted that the defendants were partners as alleged, after Jan. 18th, 1848, and that all of them except Mussey, were partners long before that time, under the same name of Stevens, Walker, & Co.</p> <p>The account consisted of one item, to wit:</p> <p>1843. — Oct. —To share of timber got in by self and Wm. E. Wells, price agreed, $14.34</p> <p>And a second count for .goods sold, &c. 20.00 under which was specified,</p> <p>“ My interest in lumber drawn to the mill by self and Wells, in winter of 1842-3, being 1-4 part when manufactured by defendants. The whole of which was sold to defendants in 1843, after part had been manufactured.”</p> <p>Under the general issue the plaintiff put in evidence tending to prove, that in the winter of 1841-2, W. R. Wells, and Jesse Wells, made a bargain with Ebenezer Stevens, who was the general agent of Stevens, Walker, & Co., to clear a lot of land of the company, and get in to their mill all the timber suitable for clapboards; that the timber was to be manufactured by the defendants, and they were to have one half of the timber when manufactured, for their pay; that they logged from the lot that winter; the lumber was manufactured, and they received their share of it; that early the next winter, the Wellses made an agreement with Brown, by the assent of said Stevens, to take half of their job; and they and Brown hauled in the timber in question; part of it, about 2,000 or 3,000 feet was sawed, and the rest was, at the request of Stevens, in June, put in his boom in the pond, to be sawed immediately; that he neglected to saw it, and, in September, a freshet swept the larger part of it away.</p> <p>Soon after, Brown and Wells went to Stevens, and contended it should not be their loss, as they had done as they agreed, and he had neglected to saw as he agreed, and Stevens did not contend it should be their loss. The parties knew the number and quality of the logs, and made an estimate of the number and quality of clapboards, they would make, and Stevens agreed to pay to each a certain sum, and was to take the logs where he could find them. He had hopes to save many of them in a boom below. He paid Wells at the time, but did not then pay the plaintiff.</p> <p>Evidence was introduced by the defendant, having some tendency to show, that Mussey, upon becoming a partner, assumed the share of the persons whose interest he purchased, in the debts and liabilities of the firm.</p> <p>The defendant contended that there was no evidence on which the action could be sustained; that the logs belonged to the old firm of Stevens, Walker, & Co., of which Mussey was not a member, who were to pay one half of the lumber, when manufactured, for Wells and the plaintiff’s labor in drawing; and therefore till his share was delivered to the plaintiffs, he had no property in the timber, and of course could not sell it.</p> <p>If, however, he had any such property, the whole of the last agreement was not only a sale, but a composition of the plaintiff’s claim under the original contract, and the $14.34 was to be paid partly in consideration of that composition, and could not be recovered in this action, on account of a variance between the declaration and the evidence.</p> <p>That a part of the consideration of the promise to pay the $14.34 being the composition of the claim under the original contract, to which Mussey was not a party, he -was not liable to pay, and Ebenezer Stevens, as the general agent of the new firm, could not bind him to pay.</p> <p>The Court charged the jury, that if they should find that Mussey came in, assuming the old liabilities, he might be holden op a contract made in adjustment of claims against the old firm, to which the defendants excepted.</p> <p>The jury found a verdict for the plaintiff, which the defendants moved to set aside, by reason of the said objections and exceptions.</p> <p>Wells and Brown, and Stevens, Walker, & Co., were tenants in common of the timber after it was drawn, and in the fall of 1843, the plaintiff sold his share to the defendants, Mussey then being a member of the firm. The timber was then, some of it at the mill, and some below in the river, the boom having been broken.</p> <p>Whether the amount agreed to be paid was more than its value does not appear. Nor does it appear how far the neglect of the defendants to saw it out affected the price.</p> <p>It was put in the boom in June, when Mussey was a member of the firm, to be sawed immediately, and on account of the neglect to saw it, the plaintiff claimed that the defendants ought to bear the whole loss, and the defendants agreed to buy the timber, and pay the $14.34.</p> <p>If the price was affected by the neglect, it was right, being a matter about which the new firm was competent to contract.</p> <p>Even if the contract to saw immediately had, been the contract of the old firm, the agreement bound Mussey, in as much as he assumed the debts of the old firm.</p>

Trover for a quantity of hay. The defendant, by his pleadings, confessed the plaintiff’s action and damages to a certain amount, and pleaded the general issue as to the residue. The quantity of hay taken, and its value, were the questions to be determined. To show the quantity, the deposition of Ira Howland was offered in evidence by the plaintiff. He was asked how much hay the stack contained, — to which he replied in his answer: “ I cannot tell how much it would weigh.

Petition for a new trial, filed on the 30 th day of May, 1850. It was stated in the petition that, on the 22d day of January, 1850, the defendants brought an action against the plaintiffs, the writ being returnable on the second Tuesday of April, 1850, entered the action and took judgment by default, for $2,040.00 debt, and $23.76 costs. The action was brought on a policy of insurance dated on the first day of October, 1846.

Assumpsit. The writ was dated February 17,1848. The declaration contained two counts; one, on an account annexed, for a quantity of hay amounting to $47.62, and the other, a general count, for a quantity of hay sold and delivered to the defendant. It appeared in evidence, that one Jason Thayer owned a farm in Danbury, and sold the hay in a barn on the farm, to one Cashman, and Cashman sold it to the plaintiff.

Appeal, from the judgment of a magistrate. The action was assumpsit. The writ was dated December 25th, 1847, and contained two counts.

Trespass,- guare clausum. The parties both claimed to own the land where the alleged trespass was committed. Both derived their title by warrantee deed from Judge Arthur Liver-more; the plaintiff from her ancestor, Nathaniel C. Prescott, who was the grantee of said Livermore; and the defendants from one Hackett, who was also a grantee of Livermore.

Trover, for sundry articles of personal property. Tbe writ was dated November 5th, 1847. Plea, the general issue. It appeared that the property in question was, on the 3d of November, 1847, in the possession of one Brown, as agent for one Southard ; that on that day, by an agreement between said Southard and one Cook, the property became Cook’s and was delivered to him by Brown, by direction of Southard.

Assumpsit, by a deputy marshal for the service and return of a writ of injunction, issued by the District Court of the United States, to stay proceedings in a suit commenced by a creditor of a bankrupt.

Petition of the town of Grafton for the discontinuance of a highway. The Road Commissioners reported in favor of the discontinuance, and their report was accepted. moved for the allowance of the whole costs of the proceedings, including the charges of the Road Commissioners and of the hearing before them, against the original petitioners, on whose application the road was laid out, and who, upon the notice ordered by the Court, had appeared and resisted the petition.

The action was founded upon the two following agreements in writing: “ 19 November, 1831. For value received, I promise William Doe to pay him twenty-five dollars, on condition that no arrangement is effected, by which the mortgage now held by the Grafton Bank, in the Ben Porter homestead farm, is purchased for the benefit of those «interested in said farm. Wm.

<p>A leading interrogatory, in a deposition taken when both parties are present, must be objected to at the time it is put, otherwise any objection thereto will be regarded as waived.</p> <p>When a party, duly notified of the caption of a deposition before a commissioner in New York, did not personally attend, but questions were propounded to the deponent, by the commissioner, at the request of the attorney of the party, and the commissioner duly certified in the caption that “ the defendant was not present, but the deponent was examined and the defendant did object,” which objection was also made, and certified by the direction of the attorney of the party; it was held, that the party must be regarded as having been personally present at the caption.</p> <p>Where it was certified in the caption of a deposition, that “ the defendant objects to the foregoing deposition, both as to the form in which it is taken, and the matter testified to by the witness,” it was held, that the objection was too general, and could not avail the defendant, as an objection to the leading character of an interrogatory, contained in the deposition, the grounds thereof not being specified.</p> <p>A partial payment of a promissory note, amounts to an acknowledgment of a present subsisting debt, which the party is liable, and willing to pay; from which, in tbe absence of any act or declaration of the party making the payment, inconsistent with the idea of a liability, and willingness to pay, a jury may, and ought to infer a new promise to pay the balance thereof.</p> <p>But a partial payment by one of two joint promisors, in the absence of the other, is not sufficient to take a case out of the operation of the statute of limitations, as to that other.</p> <p>Where a partial payment was made upon a promissory note, by the surety in the presence of the principal, who well knew and understood the fact, but said nothing in relation thereto; it was held, that such payment afforded sufficient ground on which to found an inference of a new promise, as to the principal.</p>

<p>A judgment, rendered upon default, against a party who, at the time of the service of the writ, is an inhabitant of this state, and whose goods are attached, but to whom no summons is delivered, and where none is left at his last and usual place of abode, is erroneous, and will be reversed on error for such defective service.</p> <p>And, where the judgment is entire against several defendants, and is erroneous as to one of them, for the cause aforesaid, it is erroneous as to all the defendants, and may be reversed as to all.</p> <p>There are cases in which this Court may, upon the reversal of a judgment upon error, render such judgment, as it shall appear might have been rendered in the original action.</p> <p>Accordingly, where a joint judgment against several, rendered upon default, in an action for an alleged joint liability, was reversed for the cause of a defective service as to one, it was held, that the Court might render judgment against the other defendants.</p>

Trespass. The declaration contained six counts. The first count alleged that the defendant, with force and arms, did fell five trees, each of which was more than one foot over, and was of the value of two dollars; and twenty-four poles, each of which was less than one foot in diameter, the property of the plaintiff, and standing on his land, upon which the defendant then was, without right and without leave from the plaintiff, the owner of the same, contrary to the form…

Assumpsit, on a promissory note for fifty dollars, dated March 30, 1847, payable to Sarah Sanborn or order, in one year from date, with interest annually, signed by the defendant. The declaration also contained a count for money had and received.

Assumpsit, against the defendants as common-carriers, for neglecting to carry and deliver at the post-office in Lisbon, one hundred dollars, which the plaintiff, on the 29th of May, 1846, delivered to them at Bath, in a letter directed to Henry Hall of Northumberland, to be carried and delivered at the post-office in Lisbon. Plea, the general issue.

Covenant broken. The writ was dated April 20 th, 1846. The plaintiff alleged, in two counts in his declaration, that the defendant, as sheriff of the County of Coos, having sold to the plaintiff’s intestate, at two several sales, for the payment of taxes assessed thereon, a certain tract of land, in the township of Cambridge, in this County, estimated at twenty-three thousand acres, afterwards, on the 27th day of January, 1825, and on the 22d day of January, 1827,…

Petition, for leave to appeal from a decree of the Judge of Probate. The following facts were shown to the Court: ■ — . Jesse Knowlton, late of Dublin, made his will, and appointed the petitioner his sole executor, and died leaving real and personal estate in this county. The will was proved in the Court of Probate on the third Tuesday of May, 1849.

Scire Facias. On the 24th day of July, 1850, Prelate M. Robinson, having been arrested upon a complaint against him for larceny, was brought before Calvin Burnap, a Justice of the Peace for this county, and was ordered to recognize in the sum of four hundred dollars, with two sufficient sureties in the sum of two hundred dollars each, for his appearance at the Court of Common Pleas for this county, to be held on the second Tuesday of September next ensuing.

Debt, on a jail bond, dated December 10th, 1849, given to the plaintiffs by one John N. Hodskins, as principal, and the defendant and another as^sureties, with condition that if the said Hodskins, a prisoner on the plaintiff’s execution, should, within one year from the date thereof, apply to .the proper authority, and be admitted to take, and should actually take the oath or affirmation prescribed by law for the relief of poor debtors, or in default thereof should surrender…

Assumpsit, on the following promissory note. “ Chesterfield, March 1, 1847. “ For value received, I promise to pay O. B. Huggins, or order, forty-two dollars sixty-seven cents, on demand, with interest annually, in six months. (Signed) E. P. Pierce, Jr.” Indorsed, O. B. Huggins. On the general issue, it appeared that the note was indorsed after it was overdue.

Debt on a judgment recovered by the plaintiff against the defendant and another, in the State of Vermont. The defendant filed an account in set-off, and the cause was referred to an auditor. On the hearing before the Auditor, authenticated copies of the judgment declared on, and of all the papers used and filed in that suit, were offered in evidence.

Assumpsit, on an account annexed to the writ, and the general counts for money paid, money had and received, goods sold and delivered, work and materials, money lent, account stated, and interest due. The plaintiffs were commission merchants, doing business in Boston, in the State of Massachusetts, and, since the year 1844, had sold broadcloths and other woollen goods, on commission for the defendants, who were manufacturers doing business in Newport in this State.

Case for diverting the water of Sugar River, in Claremont, from the plaintiffs’ cabinet shop and machinery. Upon the general issue, it appeared, that the plaintiffs, on the 2d of May, 1848, became owners of a lot upon the river, on which a cabinet shop, with a water-wheel and machinery was erected in 1836, and has been since used. The shop is on the north channel or branch of the river, where it is divided by a small island called Rock Island.

Trespass. The plaintiff’s declaration contained two counts. In the first, it was alleged, that “ the defendants on &c., at &c.,. assaulted and imprisoned the plaintiff, until they compelled him, to gain his liberty, to pay $309.08,” &c.; and in the second, it was alleged, that “ the defendants on &c., at &c., assaulted and imprisoned the plaintiff twenty-two days, without any lawful or probable cause, whereby the plaintiff was injured, &c., and, to gain his liberty, was…

Trespass, for breaking and entering^ the plaintiff’s building, &c., and breaking, cutting, &c., from said building, and carrying away and converting to his own use, articles^ affixed thereto, to wit, one trip-hammer, one press-punch, &e. The general issue was pleaded, with a brief statement, that the building, &c.,in which, &c., was and is the soil and freehold of Stearns, &c. The plaintiff introduced evidence tending to prove the trespasses alleged; and the defendants then…

Case. The plaintiff declared against the defendants, “ in a plea of the case, for that the plaintiff heretofore, to wit, on the 10th 'day of June, 1848, was and from thence hitherto hath been and still is lawfully possessed and in the occupation of a certain close, situated in Claremont, &c.; and the said defendants during the time aforesaid, were and still are in possession of, and in the use and occupation of a certain railroad passing over and across the plaintiff’s said…

Case, for slanderous words. The declaration alleged that “on the 29th day of June, A. D., 1850, at Wendell, in said County, in the presence of divers persons, citizens of this State,” the defendant “ did speak and publish of, and concerning the plaintiff, the false, scandalous, and malicious words following, to wit, he, (meaning the said Bobinson,) is a thief and a liar, and I, (meaning the defendant,) can prove it.” The declaration contained no other colloquium than is…

Case, for flowing the plaintiff’s land. The defendant justified the building and maintaining his dam in the manner complained of in the plaintiff’s declaration, by virtue of an alleged license from the plaintiff.

Case. The declaration contained two counts. The first alleged that the plaintiff, on the 13th day of June, 1849, and long before, for more than twenty years, was seised of a certain tract of pasture land, situate in Salisbury, in his demesne as of fee, bounded, &c., and containing one hundred acres, more or less, and during &c., had used and occupied the said close for pasturing sheep, cattle, and other beasts; that through said close a public highway passes from Salisbury…

Assumpsit. The writ was dated April 15th, 1846, and contained one general count only, for the sum of one thousand dollars, for the labor and services of the plaintiff, done and performed for the defendant before the date of the writ. The plaintiff moved to amend his’writ, by adding a count for goods, wares, and merchandise, sold to the defendant, to the amount of three hundred dollars.

Writ of entry. The demandant in proof of his title to the premises demanded, introduced evidence, that Ara Morrill, the husband of the tenant, died seised of the property ; his right to the same was… Held: that it is immaterial what shape the property of the wife may take, it must still be regarded as her property; and her right to it would not be affected by any act of the husband, so long as he made no claim to it, and did nothing to reduce it to his possession. II.

Petition, for a highway in the town of Northfield, representing that the selectmen, although duly petitioned therefor, had neglected and refused to lay out the same.

Trespass, for breaking and entering the plaintiff’s close in Pittsfield, and cutting down and carrying away thirty loads of his grass.

In this case two questions arose. 1st. Whether the Court of Common Pleas have power to remit a fine, which if paid, would go to the use of some town or city in the county. 2d. Whether the Court of Common Pleas for any county, have power to instruct the jailer of the county not to receive into the jail any person ordered to be committed for the nonpayment of a fine, which, if paid, would go to the use of any town or city in the county, until such town or city shall have given…

Trespass, for assault and battery. Dr. Thomas Brown, who had testified as a witness for the plaintiff, on a former trial of this action, had died ; to prove his testimony given on that trial, the plaintiff offered George Barstow as a witness, who said he could remember the whole substance of the deceased witness’ testimony, as he gave it, both on his principal and cross examination ; but could not state it all in the exact words used by the witness.

Trespass, for breaking and entering tbe plaintiff’s close in Hudson, in this county. The parties were owners of adjoining lands, and the principal question on trial was, as to the boundary line between them. The division line between the parties run northerly and southerly, the defendant owning the land on the westerly side of the boundary line.

This was a complaint to the Police Court of the city of Manchester, which alleged that the defendant, June 1, 1849, did, without necessity, place and throw, and cause to be placed and thrown into and upon a certain public street in Manchester, leading from the City Hall over Hanover Street to Candía Road, so called, being the extension of Hanover Street, and called the Parmer Road, in said Manchester, a large quantity, to wit: ten cartsfull of stones, to the great impediment…

Trespass, for breaking and entering the close of the plaintiffs, situate in Hampton, and carrying away several loads of sea-weed and flats-weed, &c. The writ was made returnable before a magistrate, and the defendant filed six pleas, upon which the action was transferred to this court for trial. The first plea was, that the close was the soil and freehold of the State, and that the defendant, as a citizen of the State, did the acts complained of.

Assumpsit. The writ was dated November 21st, 1845. The declaration contained four counts ; the first was founded upon a note of the - defendant for $8.30, dated January 1st, 1839, payable to the plaintiff with interest; the second upon the defendant’s note for $111.13, dated January 1st, 1839, payable to the plaintiff with interest; the third alleged that the defendant, as executor of Oliver Ham, and having in his hands $111.13 of the estate of said Oliver, due and payable…

Trespass for breaking and entering the plaintiff’s close and cutting wood and timber. The controversy related to the position of the line between the lands of the parties.

‘Writ oe Entry, sued out March 26th, 1849, to recover a tract of land in South Newmarket, formerly Newmarket, containing about one hundred and thirty-one acres, being the homestead farm… Held: that the statute did not apply to a will dated before its passage. III. If it were held that our statute might have a retroactive operation, there is nothing within this will to bring it within the provision, because there is no such manifestation of intention as the statute requires.

This was an action of assumpsit on a promissory noted ated April 12th, 1847, for $100, payable to plaintiff, or order, on demand, with interest, signed by the defendant. On the note was an indorsement of the sum of fifty dollars, dated July 25, 1848. With the general issue the defendant gave notice of a set-off for money paid, &c., of $180.

Assumpsit, on an account annexed to the writ. The items in dispute were _as follows : 1848, June 16. To 6865 lbs. of flue boiler, at 8 cts., $507.60 June 24. To 991J lbs. boiler front at 3| cts., 84.71 To fittings for boiler, 15.00 $557.31 The principal controversy related to the question, whether the contract for making the boiler was made with the plaintiffs by Walker, the defendant, or by Wing and Thompson, machinists.

Trespass, for breaking and entering the plaintiff’s close, particularly described in the writ, situated in Auburn, and cutting down and carrying away twelve of the plaintiff’s trees there growing, and five cords of the plaintiff’s wood; and other wrongs, &c. Plea, the general issue.

Assumpsit. The first count in the plaintiff’s declaration alleged, that the defendant, on the first day of July, 1847, being indebted to the plaintiff in the sum of $30.60, for labor and materials in… Held: too, in all these cases, that objections to depositions depend, in the absence of any statute, upon the practice of the Court in respect to the admissibility of evidence.

<p>Writ oe Entry. The facts ín.this case are sufficiently stated in the opinion of the Court, delivered by,</p>

Assumpsit, on account annexed, for 7,000 feet of White Pine Boards, at $13 per M. 91,00 A lot of Slabs, 4,00 $95,00 At the trial upon the general issue, a witness was introduced by the plaintiff, who testified that he was commissioner to examine the claims of the creditors against the estate of the plaintiff’s intestate, J. Wadleigh, deceased, decreed to be administered as insolvent; that the defendant presented to him a claim against the estate, being a note for ten…

<p>Petition, for a new highway in the towns of Derry and Londonderry.</p> <p>In' the Court of Common Pleas, the town of Derry moved that the Report of the Road Commissioners be set aside, because sundry of the petitioners for said highway, that is to say, John Moore, David Gilchrist, J ames M. Gilchrist and Jonathan Savory, being offered as witnesses on the part of the petitioners, and being objected to on the part of the town of Derry, were, nevertheless, admitted by the Road Commissioners to testify in favor of the laying out of said highway.</p> <p>The petitioners admitted the facts stated in the motion, and contended that the admission of the petitioners as witnesses was legal and proper. And the question was transferred to this Court for decision.</p>

Writ or Entry, brought on the 8th of August, 1843, to recover a tract of land, situated in Sandown in the county of Rockingham, containing seventy acres, being that part of the homestead farm lately… Held: that his lien upon the land was defeated by the execution of the power. The same question arose in Tunstall v. Trappes, 3 Sim. Rep. 286, and was decided in the same manner. And in Eaton v. Sauxter, 6 Sim.

Assumpsit. Tbe declaration alleges, that the defendant, on the 25th of October, 1844, by his note of that date, for value received, promised J. Y. Demeritt, then living, to pay him, or his order,… Held: that the defendant may show that the note and mortgage on which he is sued, wrere made to defeat or delay creditors, and were therefore void; and that the oath made upon the mortgage did not deprive the party of that right.

, within the county, &c., with others unknown, did then and there make a great brawl and tumult, contrary, &e., against, &c.” The respondent was tried before the Justice, July 6th, 1850, upon the plea of “ not guilty.” The respondent, in the Court of Common Pleas, moved to quash the appeal, on the ground that no offence is described in the complaint. He also moved that the appeal might be dismissed, because the complaint was not prosecuted by the public prosecuting officer.

In Equity. This was a bill for a discovery in aid of a defence to a suit at law. Tbe case came before tbe Court upon exceptions to tbe answer, and tbe facts, so far as it is material to state them, sufficiently appear in tbe opinion of tbe Court.

Trespass, for breaking and entering the plaintiff’s close in Wolfborough, and carrying away and converting to the use of the defendant, fifty loads of the plaintiff’s manure. With the general issue, the defendant filed a brief statement, that he owned the manure, and entered upon the premises for the purpose of drawing it away.

Assumpsit, ia two counts. The first count was on the following account annexed to the plaintiff’s writ: “ Jacob Woodward to Samuel R. Allen, Dr. April, 1850.

Trespass, quare clausum. The writ was dated January 23d, 1847, and was for a trespass committed on the 7th of January, 1847.

Petition for a decree of nullity of marriage. The petition alleged that the petitioner first became acquainted with the petitionee, at Itumney, in Grafton county, on the 7th day of October, 1844 ; that the contract for their intermarriage was made about the 10th day of November, 1844 ; that said parties were married on the 2d day of December of the same year, and that the ■petitionee, at the time of entering into said contract, and at the time of the celebration of said…

Case, to recover damages occasioned to tbe plaintiff on the Bd of April, 1849, by reason of the obstructions, insufficiency, and want of repairs of a certain highway in such town. The writ was dated August 1st, 1849. It was admitted that the town were bound to keep the. highway in repair and free from obstructions, where the injury happened.

Trover, for three horses, one wagon, and three harnesses. The writ was dated March 17th, 1849. The defendants pleaded, severally, the general issue.

Petition of the town of Bath to discontinue a highway, laid out on petition of Sargent Moody and others, October Term, 1848. The petition alleges that the town voted to discontinue -the road on the 13th of March, 1849.

In Equity. The bill states that an action was pending April 21,1338, brought by D. Wendell, against the complainant, for breaking and entering her close in Lyman, and cutting and carrying away her timber trees. D. Wendell died, and A. Wendell her executor, prosecuted the suit.

Indictment, for not building a road. The road was laid out by the road commissioners, extending about three miles and a quarter, through a rough, rocky, wilderness country. The cost of building it was estimated at fourteen, hundred dollars. Their report was accepted at the October Term, 1848. At the April Term, 1849, the town entered a petition for the discontinuance of the road, which, after due notice, was referred to the road commissioners.

This was an action of dower, brought to recover the plaintiff’s right in a certain piece of land situated in Alexandria, and bounded as follows. “ Beginning at the north-east corner of lot No. 10, thence southerly on the line between this and land owned by Clark Haynes to the road which leads to William A. Bailey’s, thence westerly on the road leading to George Bailey’s, thence northerly down to the bridge on Little River, so called, thence easterly to the bounds first…