Volume 25 — New Hampshire Reports

The trustee disclosed that said Portsmouth Hosiery Company, on &c., made an assignment of all their property to said Emery and J. Nesmith, of Lowell, and.

Assumpsit, on a policy of insurance against fire, issued by the defendants, a mutual fire insurance company, to the plaintiff, who owned the property insured, and gave his premium note to the defendants. Plea, the general issue, under which the defendants stated the following grounds of defence: 1. The directors of the company did not determine the amount of the loss until long after the commencement of this suit. 2.

Debt, for penalties. The first count alleged that the defendants - were duly chosen selectmen o;f Danville for the year 1847, accepted, were qualified, and executed the office.

Assumpsit. The writ was dated June 6th, 1850, and contained two counts.

Writ op Entity, in which Rufus Flagg “ demands against Levi Bean, possession of a certain tract of land, situate in Rochester, bounded southeasterly by land on which said Bean lived, and which he occupied on the second day of September last past, (1849,) and by a cove, northeasterly by the Cocheco river, westerly by said tract, owned and occupied as aforesaid by said Bean, and also bounded by land of James Boyle, land of Joseph D. Heard, and by the road leading from Norway…

Case. The action was tried upon the general issue. The first count in the declaration alleged that the plaintiff, on the 1st day of September, 1850, delivered to the defendant his, the plaintiff’s, horse, to ride from the Great Falls Village in Somersworth, in this county, to South Berwick Village, in the State of Maine, and back again, and that the defendant so unreasonably and immoderately overloaded, drove and rode said horse that by reason thereof he died.

Petition of John C. Foss and others for a highway in Strafford. The petition was filed in the office of the clerk of the common pleas, on the 21st day of December, 1850, and an order of notice was issued, returnable at the January term, 1851; at which term the petition was referred to John Walker, Walter Durgin, and Bartholomew Wentworth, then road commissioners of the county. At the August term, 1851, the commissioners made their report, laying out the highway prayed for.

The writ contained three counts ; 1, indebitatus assumpsit for balance of account; 2, for work and labor; 3, quantum meruit for work and labor. A set-off was filed and the action referred to an auditor. At the hearing before the auditor, the plaintiff proved that her services were worth two dollars per week and board.

Assumpsit, on review. The original writ was dated February 8th, 1843, and contained one general count for $12,000, money had and received by Smith Sanborn in his life time, for the use of the plaintiff, and for a like sum for money paid, laid out and expended by the plaintiff for said Smith ; and averred a demand and refusal, both upon Smith in his life time, and upon his executors since his decease.

Case for slander. The declaration alleged that a certain trial at law was had between Brawn, the defendant, and one Samuel Prescott, at Ossipee, in the county of Carroll, on the second Tuesday of November, 1846, on which trial Leonard S. Folsom, the plaintiff in this suit, was a witness for Prescott; and that afterwards Brawn, the defendant, charged Folsom with having committed perjury in his testimony given upon that trial.

Petition for the discontinuance of a highway. The petition was referred to the road commissioners of the county at the September term of the common pleas, 1851. At that time, it appearing that John Blaisdell, Esq., one of the board of road commissioners, was a resident of Gil-ford, Samuel G. Berry, Esq., of Barnstead, was appointed by the court to fill the vacancy occasioned by the incapacity of Blaisdell to serve.

The first count in the declaration alleged that the plaintiffs “ bargained with the defendant to buy of him a certain bay stud horse for the price of $525, and the defendant, by falsely and fraudulently-warranting said horse to be sound, then and there sold said horse to the plaintiffs for the price aforesaid; whereas the said horse was then and ever since has been unsound and worthless; whereby the plaintiffs were deceived and defrauded.” The second count stated a similar…

In Equity. The defendant, owning two lots of land in Groton, in this county, being lots numbered seven and ten, in the fourteenth range of the third division of lots, on the eighteenth day of August, 1845, agreed to sell them to the orator for the sum of seventy-five dollars, and gave him a bond conditioned for the conveyance of the lots, upon the payment of that sum, and agreed that the orator should occupy the lots, the orator being to pay the taxes thereon.

Foreign Attachment. In answer to the usual interrogatory propounded to the trustee, the trustee disclosed as follows, namely: “ On the sixth day of May, 1850, the defendant turned out and delivered to me all his attachable personal property excepting a portion of the same which he had before that time mortgaged to Alonzo Winkley, and I took possession of the same, as security, in the first place, for a demand which I had against him in full, and after that was paid, for the…

Assumpsit upon a policy of insurance. The defendants-were summoned to answer to David G. Goodall, of Lisbon, in this county, as agent of the Lisbon Manufacturing Company, a firm consisting of James Allen and Greenleaf Cummings, both of Lisbon, late partners by the style of Allen & Cummings, and said David G. Goodall and Ira Goodall, of Bath, partners by the style of I. Goodall & Son, and Ira-Goodall in his private capacity, all being the owners of said Lisbon Manufacturing…

<p>Evidence showing that a witness had made statements substantially different from those he now mates, and inconsistent with them, in regard to material matters, is admissible to affect his credit.</p> <p>Statements made by a witness relative to his state of feeling towards a party, are regarded as material, and may be so contradicted.</p> <p>A caption of a deposition, which states that it is to be used at the court, &c., to be holden at, &e., on a day specified, which is the first day of an adjourned term, is sufficient.</p>

Assumpsit, on a policy of insurance issued to the plaintiff, June 30,1848. Plea, the general issue. On trial, the plaintiff’s evidence went to show that the property insured, which consisted of certain manufacturing machinery, was destroyed by fire, on the 29th of December, 1849, while covered by the policy, and that he owned the property when it was insured and destroyed..

Debt on bond dated March 26th, 1850. The condition of the bond, as set out upon oyer, recited that Smith had contracted with Pierce to convey to him a tract of land in Campton, on Pierce’s paying a note of even date, for seven dollars per acre, “ one half in forty-five days, and the other half in six months, in clothes-horses at fifty cents apiece, one of which he leaves with me for a pattern to have them made by.” The replication, after stating that the parties surveyed the…

Trespass for an assault and battery. The action was commenced before a justice of the peace, from whose judgment the defendants claimed an appeal, and entered their appeal in this court at the present term. And now the defendants move that the cause be dismissed, because, as is alleged, the judgment was irregular and void. Before the justice, the defendants severally pleaded the general issue.

In Equity. The bill was in favor of Stone, Page and others against John Anderson and Frederick W. Sargent of Boston, and Samuel Morrison and William Morrison of Bethlehem, in this State. It was filed in the clerk’s office prior to the last term of this court, and duly entered at that term.

At the November term, 1850, of the common pleas, a committee was appointed to examine the disputed lines between the towns of Campton and Holderness, who heard the parties and made a report at the November term, 1851. This report was recommitted, for the reason that the description of the line in the report did not show that the committee had established the entire length of line, falling short of it about six or eight rods.

Covenant. The declaration alleged the conveyance of a tract of land in Lancaster, by John Willson, the defendant, to Jarie Willson, the plaintiff, and one Stephen Willson, her late husband, during coverture, and set forth that the deed contained the covenants of seizin, of quiet enjoyment, of good right to convey, of general warranty, and of warranty against incumbrances, — and alleged breaches of them all severally, in distinct counts.

Foreign attachment. The plaintiff having taken the disclosure of the trustee, elected to try the question whether chargeable or not, by the jury, and an issue was framed for that purpose.

Trespass for taking and carrying away a pine timber log, the property of the plaintiff, and converting the same to the defendant’s use. Plea, the general issue. Upon the, trial, it appeared in evidence that the log in question was one of a quantity of logs, cut by the plaintiff in the winter of 1840-41, and put into Israel’s river, to be floated down to the Connecticut.

<p>By the Revised Statutes, chap. 34, § 2, it is provided that a majority of the selectmen of a town shall be competent to act in all cases. Accordingly, where the selectmen of a town were empowered to appoint a collector of taxes, and the appointment was made by a majority of them, — Held, that the appointment was valid. Held, also, that a warrant and tax bill, signed by a majority of a board of selectmen, would be good; and that a collector’s bond, approved by a majority, would also be good.</p> <p>In the collection of taxes upon a warrant, a collector may distrain property, or, for the want of goods and chattels whereon to make distress, may take the body; but having taken the body for the tax, he cannot afterwards distrain property.</p> <p>After a voluntary escape, if the party is in custody on final process, he cannot be retaken. But after a negligent escape, the officer may retake him.</p> <p>An officer may allow reasonable liberties to a debtor in custody, and, as between him and the debtor, the latter cannot complain, provided there be no abandonment of the arrest.</p> <p>After an arrest which requires the prisoner to be committed, it is the duty of the officer to take the prisoner to jail as soon as he reasonably can. He is to judge of the hour at which he will start, and of the propriety of starting on account of the state of the weather, and of the personal restraint necessary to secure the prisoner. And he is not liable to the prisoner for any injury he may receive thereby, unless he needlessly exposes the prisoner’s health, or does him an unnecessary personal injury.</p>

In Equity. This case, after the decree was pronounced, as reported 1 Foster’s Rep. 9, was committed to a master to report what estate Mrs. Sparhawk was entitled to by the will of her husband. By the will, the testator bequeathed to his wife, Mary Sparhawk, one half of his personal estate.

Libel for Divorce. It was alleged in the libel that the parties were married on the fifth day of September, A. D. 1837, at Palmer, in the county of Hampden, in the Commonwealth of Massachusetts, and that they resided and lived together, the principal part of the time in Massachusetts, until the month of June, A. D. 1844, when the parties removed to Jaffrey, in this State, where they have ever since resided, excepting that the libellee has been occasionally absent from the…

Debt, upon a bond, conditioned for the support of Azubah Bartlett, agreeably to the will of her husband, William Bartlett, deceased.

The action was assumpsit, and was submitted by rule of court to three referees, who subsequently made their report, concluding with these words: 61 do award that the said defendants receive of the said plaintiff the cost of reference, taxed at five dollars seventy-five cents.” And upon this report, judgment was rendered for the defendants. Whereupon the defendants move for judgment for the costs of court, to which the plaintiff objects.

Assumpsit, -upon a policy of insurance, issued by the defendants to the plaintiff, on the seventh day of April, 1847, insuring the sum of §2000 on the following property, viz : six hundred dollars on a woollen mill, §900 on machinery and fixtures belonging to the mill, and §500 on the stock in trade employed in and about the mill, and in conducting the plaintiff’s business at the mill.

Assumpsit, upon a promissory note signed by the defendant, dated 20th March, 1838, for $42,50, payable to the plaintiff or order, on demand, with interest annually.

Assumpsit. The writ was dated September 10th, 1850, and contained two counts; one, for use and occupation of a certain farm in Danbury, in the county of Grafton, from April 1, 1848, to May 20, 1850; the other, for money had and received.

Case against husband and wife, for defamatory words alleged to be spoken by the wife. The words were set forth in the declaration with inuendos, and they imputed to the plaintiff unchaste conduct. Upon the general issue, evidence was introduced tending to prove the speaking of the words as charged, and the truth of the inuendos.

Assumpsit. In the first count, it is alleged that one N. Wadleigh, on 1st March, 1850, drew his order in writing, of that date, under his hand, directed to the defendant, requesting him to pay to the plaintiff, on demand, the sum of $20, and that on the same day the plaintiff presented the said order to the defendant, who then accepted, the same, and promised to pay the plaintiff the amount thereof, &e. The second count is for $30, money had and received by the defendant to…

Petition for partition. The petition sets forth that Elisha Morrill and Theophilus B. Martin are severally seized as tenants in common with Ira Foster, each of one undivided fourth part of a certain tract of land in Pembroke, bounded, &c., and that there is a dispute about the title, and the petitioners are each desirous of holding his share thereof in severalty; wherefore they pray that a committee may be appointed to make partition, and to assign and set off to each his…

Assumpsit. It was agreed by the parties that judgment should be rendered for either party, as hereinafter specified, according to the opinion of the court upon the following statement of facts: On the 24th day of March, 1851, John Spaulding, the defendant’s' testator, died, having made his will, in and by which he devised and,bequeathed to his daughter, Mary Wells, wife of the plaintiff, as follows: “I give and bequeath to my daughter, Mary Wells, wife of Philander B. Wells,…

Trover. The plaintiff proved that the articles in question were the property of his wife, Hannah A. Cutter, at the time of his intermarriage with her; that she afterwards died, and the property came into the defendant’s possession ; and upon a demand for it, on the 4th day of June, 1850, he refused to deliver it to the plaintiff.

In Equity. The bill stated the following case. The plaintiff, Rodney Clement, is the son of Samuel W. Clement, who died testate, on the 10th of May, 1838, owning his homestead farm, in Salem, containing one hundred acres, and ten acres of wood land in Windham. By his will, he devised the occupation and improvement of all his real estate to his wife, Elizabeth, during her natural life, without impeachment of waste.

Foreign attachment. The questions which arose in this case grew out of the disclosure of the trustees. It appeared that Partridge & Rude were insured in the New England Mutual Fire Insurance Company, on the 7th day of September, A. D. 1849, for $600, and that the property insured was destroyed by fire on the 19th day of September, 1849.

In equity. The bill alleges that Tracy, the orator, and Herrick & McKew, the defendants, entered into a copartnership, for the purpose of procuring and performing a contract with the Manchester and Lawrence Railroad Corporation, to grade the seventh section of the road, situated in Derry, in this county, the gain and loss to be equally divided between them ; and on the same day, which was the 26th of May, 1848, they took the contract of the corporation accordingly, the work…

Petition to vacate a judgment of the court of common pleas. The petition, which was addressed to the justices of the court of common pleas, stated that at the February term, 1849, of that court, an action was pending, founded upon a deed of mortgage, in the name of William Simes against the petitioner, William Claggett; that the parties made a written agreement, that when the action should come in order for trial, and the plaintiff should comply with certain terms or…

Foreign attachment. The trustee disclosed that previous to the service on him of the plaintiff’s writ, which was served April 27th, 1850, the principal defendant conveyed to him his property, real and personal, by a deed of assignment ■dated that day; that the assignment on the trustee’s part, and, so far as he had any reason to believe, on the part of the principal, was executed in good faith, and with no fi’audulent design or purpose ; that after the service of the writ,…

Trespass for breaking and entering the plaintiff’s close, situate in Somersworth, in this county, and digging up and carrying away the soil, &c. Plea, the general issue, with a brief statement of the following grounds of defence: 1. That said close was the soil and freehold of the defendant, he being seized and possessed of six-tenths thereof, in common, in fee and mortgage. 2.

Petition for a highway in Milton. At the August term, 1851, of the common pleas, the petition was, by order of the court, referred to Simon F. Hayes, Samuel IK' White-house, and Jonathan Cartland, road commissioners for the county. In vacation, after said term, Hayes being interested in the petition, declined to act thereon as such commissioner ; and on the 29th of September, 1851, the petitioners made application in Writing to Hon. Hiram It.

Assumpsit. The declaration contained three counts, for the price of a sleigh. One upon an account annexed for §26, the others special. One of these alleged a sale of the sleigh for §26, and a contract to pay for it 275 bushels of charcoal, of a certain quality, to be delivered at a specified place and time, or to pay $26 in money.

Assumpsit. The action was brought before a magistrate, from whose judgment the defendant appealed to the court of common pleas. The magistrate before whom the action was brought, was a justice of the peace throughout the State. At the date of his commission, and at the time of the trial before him, he was an inhabitant of the county of Rockingham, but the action was commenced and tried in this county.

Error. The writ of error was dated August 7,1851, was brought to reverse a judgment in the common pleas, and was returnable at the following December term of this court, at which time it was returned; but no transcript of the record of the judgment which it was brought to reverse was sent up, nor was there any return made to or upon the writ.

The defendant craved oyer of the writ and declaration, and the officer’s return, by which it appeared that the writ was dated on the second day of August, 1852, was returnable “ on the third Tuesday of August, instant,” and was served on the second of August by an attachment of the defendant’s goods, and by leaving at the defendant’s usual place of abode a summons, &c. The defendant then produced in court the summons served upon him, and prayed that it might be enrolled, and…

Assumpsit upon a promissory note, made by the defendant while an infant, payable to John Barker, or order, and by him indorsed to the plaintiff, without recourse. The declaration follows the usual form of declaring upon indorsed notes. The plaintiff called Barker to prove a new promise after the defendant became twenty-one years of age. To this the defendant objected, but the objection was overruled. The objection was that the witness was interésted.

Assumpsit. The declaration contained four counts. The summons left with the defendant contained only two counts. The defendant filed a plea in abatement for variance between the writ and summons. The plea was entitled as follows : “ Court of Common Pleas, August Term, A. D. 1852.” Strafford, ss.

Case for flowing land. The plaintiff declared that on the ninth day of November, 1848, and ever since, she has been, and still is, possessed of a tract of land, situated in Tuftonborough, in the county of Carroll, bounded, &c. Yet the defendant, on the tenth day of September, 1846, and since, until the present time, by means of a dam across the Winnipiseogee river, near Lake Village, in said county, obstructed the course of the water from the lake, and caused it to overflow…