Volume 26 — New Hampshire Reports

Indictment for a violation of the license law. The indictment alleged that on the 15th day of May, 1852, at Centre Harbor, in this county, the respondent, being then and there licensed to sell wine and spiritous liquors for medicinal, mechanical and chemical purposes, and for no other use and purpose, did then and there unlawfully sell one gallon of spiritous liquor to one Rufus Perry Hadley, said gallon of liquor not being sold for medicinal, mechanical or chemical…

Assumpsit upon ah account annexed to the writ, one item of which was as follows: 1848, Dec. 22.

<p>The form of the security for costs required by the court, is a bond “ to pay the whole or such part of the costs awarded to be paid by-to-, as the court may order.”</p> <p>Ordinarily the party admitted to prosecute or defend a suit between others, for the protection of his rights, incidentally involved in its decision, will he chargeable for the costs arising from his interposition.</p> <p>The party commencing a suit in the name of another, or voluntarily becoming the assignee of either party in a case in litigation, and continuing to prosecute or defend the action in the name of the assignor, will be charged with the costs from the beginning.</p>

Assumpsit on a promissory note. After the first trial, and judgment for the plaintiff, the case upon review was committed to an auditor, who made report, generally, that he found due to the plaintiff the amount of the first judgment and interest.

Assumpsit on an account annexed to the writ, for the labor of the plaintiff for sixteen months, to the sixth of August, 1849. Plea, the general issue, with a brief statement of a tender before action brought, but without alleging therein that the defendant has always been ready to pay the sum tendered since the time of the tender, stating, however, that the defendant brings the same into court and deposits it with the clerk for the plaintiff, if he will receive it.

Foreign attachment. The questions submitted for decision in this case, arise upon the several disclosures of the trustees, and the facts upon which they arise will sufficiently appear in the opinion.

Writ op entry, brought for the recovery of a tract of land in Lyman, in. this county, being part of lot No. 60, described at length in the writ. The defendant pleaded the - general issue, accompanied by a brief statement claiming betterments.

Writ op entry for a tract of land in Bath. Plea, null disseizin. Both parties claimed title under Luther Butler, who owned the land on the 14th of April, 1847. The demandant introduced the deed of David Young, jr. to himself, dated May 1,1847, duly acknowledged and recorded, conveying the premises in fee simple, with warranty, and reciting that the land was the same that L. Butler had conveyed to Young by deed, dated April 14,1847.

Foreign attachment. In reply to the usual interrogatory, Gordon, the trustee, stated that on the 27th day of July, 1850, he gave to Baker, the principal defendant, his promissory note for $127,82, payable to said Baker or order in ninety days, with interest. He further stated that Jesse Ladd, one of the plaintiffs, signed the note with him, ,at his request, and in fact as his surety, although it did not so appear upon the face of the note.

Assumpsit on an account annexed for services rendered as counsel for the defendant. Plea, the general issue. The action was committed to an auditor, who reported that he disallowed the whole of the plaintiff’s claim, and allowed the defendant’s set-off.

Error, brought to reverse a judgment in the common ■ pleas, rendered upon an alleged erroneous taxation of a bill of costs. The whole bill was taxed at $44,27, and error is .alleged to exist in six items of the taxation, as follows: The first item of error is alleged to be two cents in the costs before the auditor. It is said the costs before him should be $6,21, instead of $6,23. .

Trespass, de bonis asportatis. Plea, the general issue. It appeared that the plaintiff was a deputy sheriff, and attached the hay and oats in question on the 2d day of January, 1851, as the property of the defendant, Ash, by virtue of a writ in favor of Isaac Patterson, against Ash; and that he put one Caleb Ash in charge of the property, to keep the same.

Petition for an increase of damages for land of the petitioner taken for a highway, laid out by the selectmen of the town of Holderness. The petitioner moved that the petition be referred to the road commissioners, and the town of Holderness moved that the question of the amount of damages to be awarded to the petitioner, be submitted to a jury.

<p>The court will not reverse a judgment for error in the taxation of items of costs, where the whole amount taxed is no more than the party was entitled to recover for the taxable costs of the action.</p> <p>A party recovered judgment upon a default in a justice’s court, and erroneously taxed in his bill of costs an attorney’s fee of fifty cents, but omitted to tax an equal sum, to which he was entitled for travel and attendance. JSeld, that the judgment should not be reversed for that cause, on error.</p>

Error, brought to reverse a judgment of the common pleas, recovered on the first Tuesday of October, 1851. The action was trover, and was' brought by Stevens in. the common pleas, against Eames and Tuttle, the plaintiffs in error, for a' joint conversion of the property set forth in the declaration. Eames and Tuttle pleaded, severally, the general issue.

Case. The action was brought before a justice of the peace against the defendant for issuing, on the 13th of June, 1850, illegally and without right, -a warrant against the plaintiff for the collection of a military fine, for nonattendance at the May training, 1850, and for committing said warrant to one L. F. Jewell, clerk of the 4th company in the 13th regiment of New Hampshire militia, who after-wards, on the 17th day of the same June, arrested the plaintiff by virtue of…

Appeal, taken by the defendant from the judgment of a justice of the peace. The writ contained three counts; one for money had and received ; one for money paid, laid out and expended; and one on an account, annexed to the writ, for two dollars. Plea, the general issue.

This case was committed to an auditor, who made report, setting forth various matters of fact, subject to such effect as the law should give them. The report was submitted to the common pleas, who transferred it to the superior court for determination. The superior court returned it to the court of common pleas, with an order that judgment be entered on the report for the plaintiff.

Writ of entry, brought to recover a tract of land in Holderness, in this county. The plaintiff claimed by virtue of a deed from the administratrix upon the estate of Susannah Fogg, late of Holderness, and introduced the following evidence to sustain his action: 1. Letter of administration, dated August 2,1850. 2. Commission of insolvency; same date. 3. Commission to appraisers; same date. 4.

Trespass, to recover the value of one pine log, or of 700 feet of boards manufactured from it. The plaintiff proved that he drew the log in question from th a highway in Hereford, in Canada, to a sawmill in Colebrook, in this State, and moved it to another part of' the mill yard, and the miller having manufactured it into boards for the plaintiff, the defendants carried them away.

Appeal, taken by the defendant from the judgment of a justice of the peace, and entered in the court of common pleas, at the November term, 1850. At the November term, 1851, upon motion of the plaintiff, a guardian ad litem for the defendant was appointed by the court, the defendant being at the commencement of the action, and still being an infant.

Writ of entry, to recover possession of a tract of land, situated in Bartlett, in this county. The writ was dated July 13th, 1849, and the cause was tried upon the general issue.

Trespass for taking and carrying away the plaintiff’s stud horse, alleged to be valuable as a stud, and to be kept for that purpose. The plaintiff proved that the horse was taken by G-. Bellows, one of the defendants, as alleged in the declaration.

The action was commenced before a justice of the peace, and judgment was rendered for the plaintiff for the amount claimed in the suit. The defendant claimed an appeal, which was allowed by the justice upon the defendant’s entering into a recognizance with one surety only.

Assumpsit. The writ was dated July 23, 1850. The first count was on an account annexed to the writ for one • hundred cords of logs.

Covenant. On the 6th of, February, 1849, the defendant and eight others, residing in Keene and the vicinity, entered into co-partnership, by the name of the - Cheshire Company, for the purpose of trading and mining in California.

Trespass, for breaking and entering the close of the plaintiff, situated in Keene, and subverting and carrying away the soil, on the 19th day of May, 1851.

<p>The word void, in its strictest legal sense, means null, absolutely invalid, for all purposes and as to all persons, and incapable of confirmation.</p> <p>In a less strict sense, it signifies invalid as to some persons and in some respects, though effectual as to others.</p> <p>It also signifies invalid, but capable of being confirmed.</p> <p>It is also used where the meaning is more properly expressed by the word voidable, which ordinarily Signifies valid, until properly avoided.</p> <p>All these significations are justified by usage.</p> <p>Voidable is also used with equal looseness to express all degrees of invalidity less than that absolute nullity, which admits of no confirmation.</p> <p>Proceedings of judicial tribunals, which have no jurisdiction .of the subject matter upon which they assume to act, are void absolutely, and in the strictest sense of that term.</p> <p>Those of tribunals which have jurisdiction of the subject matter are not absolutely void, by reason of any irregularity or illegality of their proceedings in general, but they are avoidable by proper and timely objections.</p> <p>They may be confirmed by the parties interested, and any exceptions to the proceedings may be waived or released.</p> <p>The laying out of highways partakes of the character of judicial proceedings.</p> <p>The laying out of a highway by selectmen, in cases where they have general jurisdiction of the subject, is not void in the strictest sense of that term, although the course of proceedings prescribed by the statute may not have been followed.</p> <p>Such laying out may be confirmed, and the objections^ to it waived by the parties interested.</p> <p>It can be avoided only by those whose rights and interests have been disregarded by the neglect to comply with the law.</p> <p>A town which has been indicted for neglect to repair a highway, cannot take exception to the laying out of the highway, after having suffered a default and being fined.</p>

Assumpsit, to recover the amount of sundry bills of merchandize, délivered to one Charles P. Dudley. Plea, the general issue. The case was committed to an auditor, who made report in substance as follows: That the defendant, on the 14th of October, 1847, executed an agreement, in writing, which was delivered to the plaintiff's, who were merchants in Boston, by Charles P. Dudley.

Assumpsit, on a promissory note, dated May 29,1849, for $125, payable to R. Ward, or bearer, on the first of October, 1849, on which was indorsed $100, and of which the plaintiff was alleged to be assignee. On the general issue, the making and consideration of the note were admitted. The plaintiff’s evidence tended to show that in February, 1849, the plaintiff was in possession of this note, claiming it as his own, and that he then delivered it to a witness to collect.

Debt, for the sum of $90.00 awarded by the road commissioners to the plaintiff for his damages for his land in Alstead, taken for a highway laid out on a petition of Brit-ton and others. The report of the commissioners was accepted and the road established at March term, 1849, of the court of common pleas.

<p>Where a railroad corporation petitioned- the selectmen of a town to lay out a highway, and in their petition stated that in laying their railroad a highway had been obstructed, and requested the selectmen to lay out a new highway as a substitute for the one taken for the railroad, and the selectmen laid out the road prayed for, and awarded that the damages for the land taken for the highway should be paid by the railroad company, — Held, that the town was not liable to the land owner for the damages awarded. Held, also, that if the laying of the road was valid at all, it must be regarded as having been done for the accommodation of the railroad corporation.</p> <p>Whether the selectmen of a town have any power whatever to lay out a highway as a substitute for one taken by a railroad in the course of its construction, quaere 1</p>

Case, for diverting the water from the plaintiff’s shop and water power, on the north channel of 'the Sugar river, in Claremont, by means of a dam across said channel above, which turned the water into another channel on the other side of an island there, called Nock island, and thus prevented it from flowing to the plaintiff’s mill.

<p>Asale of personal property made by an infant, without fraud, may be rescinded by him before arriving at full age.</p> <p>If an infant rescinds a contract made by him for the sale of personal property, \ and seeks to reclaim the property or its value, he must restore or offer to restore the consideration received, before he can sustain an action for the property sold.</p> <p>Where a minor exchanged horses with an adult without fraud — Held, that he might rescind the contract before arriving at the age of”twenty-one years, but that he could not reclaim the horse parted with by him or recover its Value, without first restoring or offering to restore to the adult the_horse he had re. ceived from him. Held, also, that after restoring or offering to restore the horse received by him, he could maintain trover for the one parted with by / himself, by showing a conversion. j</p> <p>Where a contract is fully executed for a sale of personal property by an infant to an adult, and the property is delivered, the adult has the right to the property until the contract is rescinded, and a right to make a hona-fide sale of the same before the rescission; and if such a sale be made by the adult, trover will not lie against him for the property.</p> <p>A demand and refusal, merely, do not constitute a conversion, if the party on whom the demand is made is without fault, and has not the power of compliance.</p>

Debt. The writ contained two counts; the first founded upon a judgment recovered before a justice of the peace, and the second for money had and received. The justice’s signature to the original writ in the action, in which the said judgment was rendered, was in the handwriting of the plaintiff’s attorney.

Assumpsit for work, labor, &e. Upon a trial had upon the general issue, a verdict was returned for the plaintiff. After the verdict was returned, the defendants moved to set the same aside, and for a new trial, on the ground of alleged informality and illegality in the selection and drawing of one of the jurors who sat in the trial and returned the verdict.

Case for the assessment and collection of an illegal tax. September 4th, 1849, ten legal voters of the village in Hopkinton, petitioned the selectmen of said town to establish a village precinct, agreeably to act of July 6, 1849. Thereupon, on the 10th, the selectmen established a precinct, and on the 11th issued a warrant for a meeting.

Writ op error, to reverse a judgment rendered in the court of common pleas, March term, 1852.

Writ of entry, brought by the plaintiffs to foreclose a mortgage, made by the defendant to Hiram Munger, and which they claim to hold by virtue of the sale and indorsement to them of a note secured thereby. The case was submitted to the court upon papers exhibited by the parties.

, a justice of the peace. It appeared that the writ was not signed by the proper hand of the magistrate, but on being presented to him for his signature before service, he directed another person to sign it, who, thereupon, in his presence and in pursuance of his said direction, subscribed the name of said Aaron Cilley, jr., to the writ.

Assumpsit, upon an account annexed to the writ. One class of charges was for fees alleged to be due to the plaintiff,» as justice of the police court of the city of Manchester, in cases entered and prosecuted in that court, for the collection of military fine's by the defendant, as an attorney, amounting to the sum of $34,76. Another class was for similar fees in civil cases, amounting to the sum of $2,84.

Assumpsit, to recover two notes, one of which was in these words: “ Manchester, June 1,. 1842. For value received, the Second Methodist E. Society in Manchester, N. H., promise to pay Moor & French, or bearer, seventy-six dollars and seventy-four cents, in one year from the first day of January, 1843, with interest.” The other was in the same words, except that'it was made payable in “ two ” years.

Assumpsit, against the defendant as signer of seven promissory notes. Two of the notes were confessed; and there were in dispute three, dated October 7th, 1841, for $> 100 each, payable to John Francis or order, in two, three, and four years from date; and two others, dated January 20th, 1842, for $75'each, payable to the plaintiff or order, in two and three years from date, with interest.

Trover, for fifty loads of manure. Plea, the general issue. The manure in question was made on a farm owned, and occupied by the defendant, and was lying in heaps-about the barn on said farm. The farm was subject to a-, mortgage to one Moore. Some of the cattle which made the manure were owned by Moore, and kept by the defendant for him, at a certain price per week, and the rest were owned by the defendant, but were subject to a personal mortgage to Moore.

Trover for five hundred cords of wood, converted October 1, 1849. On the 7th of June, 1849, there were about on.e hundred and fifty cords of wood, which had been cut and drawn out, and was most of it corded up, of which one undivided half belonged to Jonathan Merrill. About eighty cords of it lay on land of Nathan F. Stevens, in Salem, and seventy cords on land owned in common by Thomas Webster, Isaac Thom and Darius M. Thom, lying partly in Salem and partly in Windham.

Petition, for a highway in Auburn. The petition was addressed to the justices of the court of common pleas for this county, was filed with the clerk, August 17th, 1852, and an order of notice issued under the rule, and was as follows: “ The undersigned would respectfully represent that for the accommodation of the public in general, there is occasion for a new highway in the town of Auburn, in said county, commencing at the westerly end of the road leading by the house of…

Trespass, quare clausum fregit. The action was brought before a justice of the peace, and after a plea of title pleaded, was entered in the court of common pleas.

Assumpsit on an account annexed, One Hiram Paul was introduced as a witness by the defendant. On cross-examination, he was asked, if he had ever had any difficulty with Benjamin J. Drew, one of the plaintiff’s witnesses, against whose character for truth he had testified, and answered that he never had any difficulty with him.

Motion to limit costs. The action was assumpsit upon an account annexed to the writ, containing numerous items, one of which was for the wool of nine sheep, $5. The claims were submitted to an auditor, who allowed the item for wool, and disallowed all the others, on the ground that the parties had settled them before the commencement of the suit.

D. 1849, John Towle, late of Hampton, in the county of Rockingham and State of New Hampshire, deceased, in his last sickqess, at the dwelling-house of Widow Sarah Fogg, in North Hampton, in said county, where he was taken sick from home and died before his return, in the presence of the subscribers, who were requested by the said John Towle to assist in making his last will and testament, which he did in the following words: 1. I want Appleton Towle to have three dollars. 2.

Assumpsit, upon a policy of insurance, dated September 17,1849, whereby the defendants contracted to insure Ricker & Jewett of Bangor, Maine, against loss by fire on their goods in the sum of $1,500; a copy of said policy, indorsement, application, and the by-laws of the defendants’ company were made a part of the case. On the 6th of June, 1851, the goods insured by said policy were damaged by fire to the amount of $505,34.

Writ of Entry. It appeared that Ebenezer Fitts was formerly owner of the demanded premises. The demandant introduced in evidence a life lease from said Fitts to Daniel Fitts and Hannah Fitts, and the survivor of them, dated July 19th, 1824, and recorded April 25th, 1836, and a deed from Hannah Fitts to the plaintiff, dated October 2,1844, which was after the decease of her husband.

Assumpsit, upon a note dated and made at Boston, September 24,1849, for $336,55, payable to the plaintiffs, or order, in six months, and signed by the defendant. The defence set up was that the note was given for money due for spirituous liquors, which were sold by the defendant, in violation of the laws of this State, and that the plaintiffs knew that they were thus to be sold.

Assumpsit, for $250, money had and received and money paid, laid out and expended.

Assumpsit, brought to recover the amount of assessments upon certain shares in the plaintiffs’ railroad, alleged' to have been subscribed for and taken by the defendant.

Indictment, found by the grand jury for the county of Strafford, at the January term of the court of common pleas, A. D. 1852, against Charles Curtis, Isaac Pray,- and John Moore, of Berwick, in the county of York and State of Maine, charging said Curtis and Pray with having, on the ninth day of September, A. D. 1849, set fire to, burned and consumed a certain shop of one Frederic A. Lord, situate in Somersworth, in said county of Strafford, and said Moore with having on the…

Covenant. The defendants filed five pleas. At the August term of the common pleas, 1849, a trial was had by the jury upon issues joined upon the second, third and fifth pleas, and a verdict found for the plaintiffs. To the fourth plea, the plaintiffs filed a general demurrer. A case was made and transferred to the superior court, and the verdict was ordered to be set aside,- and the demurrer was overruled.

This action was entered at the September term, 1852. On the eighth day of the said term the defendant died, and his death was suggested on the record. There was an appearance entered for the defendant in the action.

Assumpsit, for money had and received. The defendant was prudential committee man for the district, for the year 1851, and in that capacity received the sum of $39.48 school money, assigned to the district by the selectmen of the town. He employed Thomas R. Davis to teach the school for six weeks, and paid him $24 for his services. The district claims this sum on the ground that Davis did not furnish to the superintending committee a register, as required by law.

Trespass, for breaking and entering the plaintiff’s close, in Moultonborough, on the 16th day of July, 1846, and cutting and carrying away ten tons of the plaintiff’s grass, &c. The defendants pleaded the general issue, together with-, a brief statement, alleging that the locus in quo was the soil and freehold of Samuel Emerson and John Coe, and that the defendants entered and did the acts complained of under a license from them.

Debt, on a bond, dated January 30th, 1836, in the penal sum of $1000, to be paid to the plaintiff or his assigns, and signed by the defendant and Joseph and William Bennett.

Assumpsit, against the defendant, as executor of Morris Leavitt, deceased, founded upon two promissory notes, signed by said Morris, payable to the plaintiff, or order, on demand, with annual interest. One dated March 11, 1837, for $66,60 cents; the other, dated April 9,1839, for $17,70.

Assumpsit, on a promissory note, dated September 21st, 1835, for $250, signed by the defendant, and payable to one John C. Gleason, or order, on demand with interest, and by said Gleason indorsed to the plaintiff.

In Equity. The bill was filed by Stone & Page, and other firms, merchants in Boston,'against Anderson & Sargent, partners, and also merchants doing business in Boston, and Samuel Morrison and William M. Morrison, of Bethlehem, in this county.

Error, to reverse a judgment rendered in the common pleas on the second Tuesday of May, 1849. Judgment upon a nonsuit was rendered in that court against the plaintiff in error for the sum of $112,86, being the amount of costs taxed against him. The errors alleged and the facts of the case will sufficient} appear in the opinion of the court.

<p>A writ returnable before a justice of. the peace cannot be served by an attachment of the real estate of the defendant, and may be quashed, on motion, when that is the only service.</p> <p>líhe statute requiring a writ to be indorsed by some “ responsible person,” where the plaintiff resides out of the State, intends that the indorser shall possess sufficient pecuniary ability to pay the costs that may be recovered against the plaintiff.</p>

Writ of entry, to recover certain lands of which S. Bergin, deceased, father of the demandant, died seized. Upon the death of Samuel Bergin, his estate was decreed to be administered as an insolvent estate, and the administrators proceeded so to administer it. For a time the administrators rented the said real estate.

Assumpsit, upon a promissory note, signed by the defendants, William T. Carlisle, Royal Joyslin, and John Dewey, dated March 10th, 1844, for f400, payable to Thomas Car-lisle or order, in one.year, with interest, and by him indorsed to the plaintiff, Edmund Chamberlain. The writ was dated April 4th, 1846. > The defendants pleaded jointly, first, the general issue, and secondly, usury.