Volume 23 — New Hampshire Reports

Assumpsit, for supplies furnished by the plaintiffs to Bailey Clough and his wife, alleged to have their settlement in Bath. The pauper was taxed from 1825 to 1882 inclusive; generally for one or two cows and some other stock, and in 1831 for one cow, two young cattle, and one sheep. Sherburn Lang was collector for 1830, and the pauper paid his tax for that year in full.

Debt. The declaration contained three counts : 1. For goods sold and delivered to the defendant and one Thomas J. Gardner, whom the defendant survives, as partners under the style of Gardner & Woolson. 2. Money had and received by the same firm. B. Upon a judgment recovered by the, plaintiff against the defendant in his own right. To the first and second counts- the defendant pleaded nil debet and the statute of limitations. No questions are raised on these, pleas.

Assumpsit. The action was pending in the western judicial district of Grafton county and was referred to an auditor, who found a balance of $402.76 due April 2,1849, from the defendant to the plaintiff, on account of their private transactions.

Trover, for four promissory notes, given by one Hatch to the plaintiff, on the 8th of April, 1846, forfifty dollars each, and payable to him, or order, in one, two, three and four years. The writ was dated September 29th, 1848 ; and was served on the same day, but not till after the transactions hereinafter set forth. Plea, the general issue.

Trover, for certain machinery described in the declaration as follows, viz: a certain paper machine, with the apparatus thereto belonging; one paper-sizer; one paper-dryer; one paper-calender ; one trimming machine, and one rag-cutter.

Case, against the defendant, a deputy sheriff, for a false return upon a writ of execution.

Case. The first count stated, that on the tenth day of July, 1847, there was a public highway in Troy, leading from Troy village towards Keene, and which the town was liable to repair; and there was upon the highway, and forming a part of it, near, &c., a valuable stone bridge, in good repair, and suitable for the accommodation of the public; that the railroad company had built a railroad passing near to, and partly upon and over, the said highway, before the day aforesaid,…

Debt, upon an arbitration bond, dated August 21, 1845. Plea, non est factum, with a brief statement, that the award was void, for the reason that the referees had exceeded their authority, in awarding, that the defendant, Huggins, should indemnify and hold harmless the plaintiff, against all debts then, at the date of the award, outstanding against either of the firms of Richardson & Huggins and O. B. Huggins & Oo., of which the plaintiff and Huggins had been partners,…

<p>In a debt on a judgment, recovered in another State, on a promissory note, the declaration may be amended, by adding a count on the note.</p>

Writ or entry, dated January 12th, 1849, brought to recover one-fifth part of a tract of land, situated in Cornish, in this county. Plea, nul disseisin. The plaintiff proved that his father, Oliver White, had been in the occupation of the whole tract set forth in said writ for forty years; and was seized of the same until April 80th, 1845 ; and that he died on said premises, in Deeember, 1848.

Writ or entry, for land in Claremont. As to part of the demanded premises, the tenants disclaimed, and as to the residue, pleaded the general issue. For the purposes of this ease the facts were agreed to be taken as follows. On the sixth of September, 1841, Leonard Gilmore and Hiram Gilmore, of Claremont,'then partners, under the firm of L. & H. Gilmore, having become insolvent, failed.

Robert M. Wallace, of Henniker, on the second day of October, A. D. 1846, made his will, by which he gave to his wife fifteen hundred dollars, payable in three years after his decease; five hundred dollars in personal property, such as she might select, the pew in the congregational meeting-house, and the use and income of the land and buildings where he lived, during her life ; and also of a part of the Davis farm, so called.

Trover, for a horse. It appeared, that on the” seventh of February, 1849, George Melvill of Concord, owned the horse in -question, and then made a mortgage of him to the plaintiff, to secure 'a note of eighty dollars and interest, which was duly executed and recorded. A witness testified that he knew this horse, while in the possession of Melvill.

<p>Contempt. Motion for a rule to show cause why an attachment should not be granted.</p> <p>On the twenty-second day of June, 1850, J. B. Curtis filed his bill in equity, in this court, against Joseph Low and Joseph A. Gilmore. The bill alleged that, in the month of December, 1842, Gilmore went into bankruptcy, and in the month of February, 1848, was declared a bankrupt; that in his application, he stated that Joseph Low was his creditor, for a sum exceeding $21,000, and in his inventory set forth, as part of his assets, claims against sundry persons, and effects, amounting to about $35.000; that Philip Greeley was appointed his assignee, and in the month of January, 1844, the district court ordered all the bankrupt’s property to be sold at auction, including the claims above referred to, which were stated in the bankrupt’s application to be deposited with Joseph Low. In the month of January, 1846, the property was sold to the orator, and conveyed to him by the assignee. In the month of February following, the orator’s agent called on Low, and informed him of the sale, and requested him to render an account of his claim on the property, and deliver the property to the orator, on his paying the sum due Low. But Low refused to deliver the property, or render an account, but has delivered it, or much of it, to Gilmore, who has received and retains it, in fraud of the orator. Low admits shat, since the bankruptcy, he has delivered some of the property to Gilmore, but pretends that, at the time of the bankruptcy, Gilmore owed him for advances, services and expenses, and that he was liable for Gilmore in a large sum, which he was subsequently compelled to pay, and that for such liabilities, Gilmore pledged the property, with a power of sale; that Low received the money on some of the claims and transferred the rest to Gilmore on receiving their value, and that he has not received more than enough to pay the debts due him from Gilmore, and the sums he has paid for Gilmore.</p> <p>The bill then charges, that the notes from Gilmore to Low, were without consideration, and were made by collusion to defraud the creditors; that nothing, or at most a very small sum, was due from Gilmore to Low ; that if Low was an endorser, or liable in any way for Gilmore, he was never legally bound to pay, and never did pay any considerable sum; that for what he did pay he has been satisfied otherwise than by the avails of the property pledged; that Gilmore, before his bankruptcy did not authorize Low to sell the property, and that it was given up by Low to Gilmore, for less than its value and with an intent to defraud. The bill then charges, that various inconsistent statements have been made, by Low and Gilmore, about the property, showing a fraudulent intent; that Gilmore and Low, since the bankruptcy, have been in business as partners ; that John L. "Whipple, whose notes are specified in Gilmore’s inventory, is a brother-in-law of Gilmore, and a partner in the firm of R. F. Fletcher & Co., whose note is also specified, and that Low and Gilmore, colluding together, made such false statements to Greeley, the assignee, that he declined to redeem the property.</p> <p>The bill prays for a discovery of the facts, and that an account may be taken of the sum due Low from Gilmore, upon payment of which, they shall be ordered to deliver the property to the orator.</p> <p>Evidence was laid before the court from which the following facts appeared: At some period, prior to the filing of this bill, Gilmore commenced a suit against the respondent, Tenney, and attached certain cattle upon the writ. John P, Tenney, a son of the respondent, then brought an action against the sheriff, on the ground that the cattle belonged to him, but the jury found a verdict for the defendant. In the month of May, or June, 1850, this respondent, Tenney, caused fifty copies of the bill in equity before mentioned, to be printed, and circulated them privately, not wishing to be known in the matter.</p> <p>It appeared that he was aided in circulating the bill, by one David G. Fuller, who said that he had three thousand copies of the bill for circulation in the places where Gilmore had business connections, and wished the copies to be passed round for people to read. The respondent said that he had the control of the bill in equity, and that if Gilmore would pay him $1000, which was the sum he had lost by the cattle suit, he would get him clear from the bill in equity. He said to a Mr. Page, win was connected with Low and Gilmore, that he could ruin them all, and showed Mr. Page a certain writing which he threatened to publish, unless they would settle with him; and told Page, .that if he would give up an execution, which Page held against his (Tenney’s) son, for about five or six hundred dollars, costs in the cattle suit, he would do no more about it. He said he could make as much out of Low and Gilmore, as he had lost in that suit, and also gave Mr. Fowler to understand that Curtis purchased the demands against Gilmore, at the respondent’s request, and said that he meant to get enough out of Gilmore to pay himself for his losses in the law-suit. There was also evidence that a copy of the bill was received by the minister of the church which Gilmore attended, and also at the office of the-Merchants’ Insurance Company, in Boston, where Gilmore had business. Curtis filed his affidavit, in which he stated that the bill was circulated without his direction, that Tenney had no authority to control the bill, and was not Curtis’ agent, and that he endeavored to stop the circulation of the bill as soon as it came to his knowledge, and that no one was authorized to propose to Low and Gilmore any terms of adjustment, and that he was the only person interested in the bill in equity. Tenney stated in an affidavit, filed in the county of Belknap, for a continuance, this case being continued nisi to that county, that he did not consider himself the agent of Curtis, in the matter of the bill in equity.</p>

Indictment, alleging that the defendants at Concord, on the first day of August, A. D., 1851, a certain gaming-place there situate, for money, hire, gain and reward, unlawfully did keep, and in said gaming-place, on, &c., did unlawfully suffer and permit divers idle and ill-disposed persons to game together, and the said persons, in the said gaming-place, on, &c., by the permission and sufferance of the defendants, did play at the game of billiards for money.

<p>Nonfeasances and malfeasances, by which an act of incorporation, would, by the terms of the charter, become forfeited, cannot be inquired into collaterally, or to defeat a private action brought by the corporation, although the charter might, upon proper proceedings had by the State, become forfeited thereby.</p> <p>Where the charter of a bridge company provided, that if the corporation should he destitute of a bridge for the term of two years, the charter should be void, and an action was brought by the corporation lor damages done to the bridge, held, that evidence by the defendants, that the corporation had been destitute of a bridge for two years, was inadmissable.</p> <p>Evidence, to be competent, must be confined to the point at issue; and where an action was brought for damages done to a bridge, caused by tho defendants putting a large quantity of logs into the river and carelessly and negligently running the same against the plaintiffs’ bridge, — held, that evidence of the amount of lumber at the head of the stream, and that it could not be got to market in any other way than that practised by the defendants, was inadmissable. Held, also, that evidence of the usage and custom, in running logs in the State of Maine, was likewise incompetent.</p> <p>Where the plaintiffs’ toll-bridge was earned away, through the fault of the de* fendants, — held, that the damages recoverable, would he the value of the superstructure destroyed, and the loss of the tolls during the lime reasonably necessary to re-build it.</p> <p>After a verdict for the plaintiff, judgment will not be arrested, unless the record shows a clearly defective cause of action. Every intendment is lo be made in favor of the declaration; and whatever is implied in, or inferrible from, the finding of the jury, will be presumed in favor of the verdict.</p>

Bower. The plaintiff’s writ was dated September seventh, 1849, and the claim was for dower in certain premises in Hopkinton. The writ set forth that Parney B. Clough, one of the plaintiffs, was formerly wife of Chase Fowler, deceased, intestate, and that she was dowable of the endowment of said Chase Fowler, her late husband, in the premises described. The writ was in due form, and averred seizin and possession of the premises by Fowler, during the coverture.

Petition, by the selectmen of Boscawen, praying the court to perambulate and establish the lines between said town and the town of Canterbury.

Petition for a highway in Northfield. The petition alleged that the road was needed for the accommodation of the petitioners. Upon the entry of the petiton in the common pleas, an order was made for notice to Northfield. At the next term Nesmith and Pike entered their names upon the docket to oppose the application; but no entry was made upon the docket of the names of the person or persons for whom they appeared.

Debt, founded upon the defendant’s bond for the sum of five hundred dollars, dated April 15th, 1848, payable to the plaintiff.

Knowlton, who died in October, 1850, intestate, under age and unmarried. The estate ordered to be distributed was the destributive share of the deceased in the estate of her father, who died intestate, previous to the year 1885, leaving a widow and four children. His widow married the appellant, and had by him two children, Malvina L. Crowell, and Martin T. Crowell, and this appeal is taken in their behalf, by their father and guardian.

Trover. The case was submitted to the court for decision upon the following statement of facts. The action is brought by Mehitable Ford, against Timothy S. Ford, to recover four promissory notes signed by one Samuel S. Hill, and payable to Timothy Ford the father of the defendant, or his order, all which notes were dated at Hudson, in this county, February 24th, 1849.

Assumpsit on an account annexed to the writ. Tbe account was charged as follows: Joseph P. Emery and Ebenezer Earnum, to William Richardson, Dr. 1848, April 14 — To 45 cords and 5 feet of wood at $2.12J per cord, ....................$96.95 To interest, .......... 1.50 $98.45 Earnum was defaulted, and the question was whether the wood was sold to Emery & Earnum, or to Earnum alone.

On the first day of January, 1851, Amzi Childs of Peter-borough filed his petition, in the court of probate, stating that twenty years or more ago James Manaban, late of Francistown, died, leaving an estate to be administered upon; that Charles Dodge was appointed his administrator, and by virtue of a license from the court of probate, sold real estate for the sum of $246.00, for which sum he has never accounted.

Assumpsit, for work and labor. The action was referred to an auditor. The following facts appeared from his report, which the parties agreed should be considered as a case stated for the opinion of the court. On, and before, the fifteenth day of February, 1850, the plaintiff, with others, was employed by a contractor, to labor on the N. H. Central Railroad.

In Equity. The following case is stated in the bill. Nehemiah ICittredge of Bedford, had four children, Nehemiah and Leonard the defendants, and John and Mrs. Craig.

. Petition for a jury. Under the law of January 13,1837, the corporation applied to the court of common pleas of this county to assess damages for them right of way. The committee appointed by the court awarded, on the eighth of September, 1841, nine hundred dollars to said Greely, and made a final report at February term, 1842.

Assumpsit, on an account annexed to the writ. The case was committed to an auditor, and so much of his report as is necessary for a decision of the same, is here given. On the fifteenth day of March, 1847, John J. Duncklee, and John Jones entered into co-partnership under the name of J. J. Duncklee & Co., and up to the fourteenth of August, 1847, they had sold and delivered to the Steam Mill Company, goods to the amount of $340.34.

Case. The action was brought originally in the police court of Manchester.

The sheriff of the county of Hillsborough, in obedience to a writ of habeas corpus, issued by one of the justices of this court, brought into court the body of Alfred Randall, a prisoner confined in his custody in the common jail at Amherst; and he returns upon said writ, that he holds the said Randall in. his custody, by virtue of an order of the court of common pleas for said county, of which the following is a copy: “ Hillsborough ss. — Court of Common Pleas, October…

Assumpsit, for money paid. It was agreed, that on the twentieth of March, 1837, the defendant, W. Perley and D. Tenney, borrowed three hundred dollars of the town of Dunbarton, for which they gaye their note. J. Perkins and the plaintiff’s intestate, signed this note as sureties only, haying received no part of the money. The plaintiff’s intestate, subsequently gaye a mortgage to secure the note. In 1842, the defendant, Perley, and Tenney, were discharged, as bankrupts.

Case. The action was commenced November 3,1849. The declaration contained four counts.

The report was made April 24, 1847. The appeal was tried by the jury, who returned a verdict for increased damages. The court instructed the jury not to allow interest as part of the damages. The appellant moved to add interest to the amount found by the jury. The appellees consented >that interest-might be added on the excess of the verdict above the award of the commissioners, but resisted the motion so far as it related to the claim of interest on the amount of the award.

Trover for thirty-four pairs window blinds. Plea, the general issue.

Case. The declaration alleged that the defendants were common carriers — that on the twenty-first day of April, 1847, the plaintiffs delivered to their agent an overcoat and umbrella, to be carried from Andover to Exeter, but that the defendants did not carry them, and that they were lost, &c. At the trial, upon the general issue, the plaintiff offered evidence that he tied the articles together and requested the ticket master at Andover to put a label upon them and send…

Debt, on a bond dated December 23, 1834, for $200. The defendant craved oyer of the bond, and of the condition which is as follows: “ If the said Philbrick, shall convey, by warranty deed, with the usual covenants, and with a release of all rights of dower, to the said Charles and his heirs, a tract of land, out of said Philbrick’s field, in front of James T. Hook’s, in Hawke, and bounded on the road in front of said house, thirty feet on said road, and twenty feet in depth,…

Indictment, in which the respondent was charged with breaking and entering in the night time, into the shop of J. Gr. Eaton, with intent to steal the goods and chattels of said Eaton, and actually stealing a quantity of shoes, of the goods and chattels of said Eaton.

Indictment, alleging that the prisoner, on the eighth day of August, A. D. 1851, with force and arms, made an assault upon one George E. Dow, with a knife which he then held in his right hand, with intent the said Dow, feloniously and wilfully and of his malice aforethought to kill and murder, contrary, &c. The counsel for the prisoner contended that the assault must have been such that, if death had ensued, it would have constituted the crime of murder in the first degree.

Information, filed by the solicitor of this comity at the September term of the court of common pleas, 1849, against the respondent, for a common nuisance, in obstructing a certain highway in Hampton, in this county, by drawing a large quantity of stones into the same.

Petition for a certiorari. It alleged, in substance, that at a former term of'this court, the respondents filed a petition praying for the laying out of a new highway in the town of Raymond, and that the petition was committed by prder of the court to the road commissioners, who made their reports thereon, at the September term of said court, 1850, laying out the road.

Indictment, alleging that tbe defendant, not being a licensed taverner, nor having a license to sell wine or spirituous liquors, on the twentieth of August, 1851, at Salem, in this county, sold five quarts of spirituous liquors, to John J efferson. John J efferson testified that he bought of the defendant at his shop in Salem, on the twentieth of August, 1851, four quarts of rum, and one quart of brandy, and paid him one dollar and two cents.

Indictment, against tbe respondents, as overseers of tbe poor in Newtown, for neglect of tbeir official duty. Tbe indictment contained two counts.

Replevin, for a phseton, of the value of fifty dollars. The defendant pleaded property in himself, and the plaintiff replied that the property was his, and not the defendants.

Assumpsit, on a promissory note, dated October 1st, 1838, payable on demand. The action was commenced, January 27th, 1849.

Assumpsit on an account annexed to the writ. Held: that neither tender, nor payment after action brought, could be shown in bar without a plea in bar of the further maintenance of the action, or a notice with the general issue to the same effect; though such payment might be shown in reduction of damages.

Assumpsit, on an account annexed to the writ, viz: 1847. May 25. To 1,077 lbs. mill castings at 3 i cts.,.. $35.00 June 1.

Assumpsit, on a promissory note. The defendant pleaded, that before, and at the time of signing said note, and always since, she was the wife of one Daniel S. Heath, who was still living. Upon this plea issue was joined.

Complaint, for neglect of military duty. The form of the complaint was as follows : “ To J. E. S., a justice of the peace, &c. 0. 0.

Appeal, from a decree of the judge of probate accepting the report of the commissioner of the estate of Frederick W. Bailey, the intestate, passed, May 10, 1848. The appeal was elated and duly filed May 16, 1848. The declaration filed with the appeal was for money had and received. At the April term of the common pleas in 1850, an amendment was allowed, adding to the declaration a count for money paid, laid out and expended.

Indictment for fraudalently altering the assignment of a mortgage. The indictment set forth the mortgage and also the assignment, as it was alleged to have been originally made from Miles Burnham to Noah Clark, the respondent; and alleged that the assignment was signed, sealed, delivered, witnessed by two witnesses and duly and legally recorded at length, in the registry of deeds of Rockingham county, on the 18th of September, 1844.

Debt. The first count alleged, that in 1847, the selectmen and assessors of Epping, assessed on Sophia Gordon, then a resident of that town, a tax of $68.14, which was duly committed! to the defendant to collect, and on the ninth of January, 1850, remained uncollected, except $1.34, which had been paid; that the defendant then took the body of Sophia Gordon, on his warrant, and detained her till she paid the taj?; and was entitled to receive as fees for the arrest,…

Assumpsit, on an account annexed, as follows : 1846. Dec. 24. To repairing stable on Hanover street in Manchester, as follows: To labor on stable,.....................$10.00 “ lumber found to repair stable,........... .5.34 “ glass and setting same,..................1.14 1849. Jan. 16. To interest after 6 mo., to date,.............1.46 $17.94 There was a second count for money had and received, $20. The case was tried upon the general issue.

Trover, for sixty pairs of women’s upper shoe-stock, fitted; alleged to have been converted May 1, 1849. The evidence of the plaintiffs was, that the wife of Luther Robinson, in the spring of -1849, fitted sixty pairs of shoe-stock, and while she had the stock in her possession, said it belonged to the plaintiffs. The court instructed the jury that her statement, while she had the stock in her possession, was competent evidence to show that it belonged to the plaintiffs.

Assumpsit, for money paid and for money bad and received. The plaintiff filed a specification, in which he claimed $380.08, paid by tlie plaintiff, as surety for the defendant, in part satisfaction of an execution in favor of the Savings Bank of Strafford county, dated June 2d, 1849, issued on a judgment recovered by said bank, against Lord, for $593.25 debt, and $11.21 cost, before the district court, &c., held at Alfred, York co., Me., May, 1849, which judgment.is founded…

In Equity. The following case was stated in the bill: The orators are a corporation established at Great Falls, on Salmon river, in Somersworth, and own five cotton mills there, with suitable machinery, and to enable them to use the. mills, they need the water of Salmon river.

Covenant broken. The declaration alleged, in substance, that by a certain deed, made at Dover, on the nineteenth day of August, 1840, between Walker and Mclntire, the defendants, on… Held: that it was immaterial when the bill was made, if the witness testified he knew it to be correct at the time it was made, and admitted the evidence. A question arose as to the time when, by the law of England, the specification of a new invention may be filed after the issuing of a patent.

Assumpsit, founded upon an alleged sale of two horses by the defendant to the plaintiffs, for two hundred and fifty dollars, with a warranty that they were sound, and an averment that one of them was unsound. Plea the general issue. The plaintiffs evidence tended to prove that they were partners, using the style and firm of Hersom & Co.; that Hersom was the active partner, and often transacted the business of the firm in his own name, and without mentioning the firm.

Trespass, on an appeal from the judgment of a justice of the peace. The plaintiffs alleged that the defendants with force and arms, broke and entered their close, which was described, and disturbed their school. Plea, the general issue. The defendants, who are minors, of the ages of twelve and fourteen years, appeared by Mr. Clark, their guardian ad litem, appointed by the justice, and jointly pleaded not guilty.

Assumpsit, for money bad and received. Tbe specification described tbe claim as founded on three promissory notes signed by tbe defendants and payable to Chapman and Pierce, or order, in four months from date. Tbe defence was that these notes were paid by a new note subsequently made, and agreed to be accepted in discharge of them.

Debt, upon a bond, against ten defendants, who plead severally the same plea, to each of which the same replications are filed. The defendants each join issue to the first replications,, and to the other replications demurrers are joined.

Case. The declaration comprised four counts. The first, alleged that the plaintiff, on the fifth of May, 1847, at the request of the defendant, had caused to be delivered to him, divers goods, &c., to wit: a lot of goods being in a store in Alton, occupied by one W. W. Jones, being the same store and lot of goods, mentioned in the receipt, or writing, of the defendant to the plaintiff, dated May 5th, 1847, in words and figures following, to wit: “ May 5th, 1847, Josiah B.…

Trespass, for breaking and entering the plaintiffs’ close in Barrington, and cutting and carrying away the trees growing upon it. The plaintiffs claim as coheirs and purchasers from other co-heirs of one Stephen Pendergast, formerly of Durham.

Debt, upon a bond. Two counts were stated, tó wit t 1, in common form. 2.