Volume 27 — New Hampshire Reports

In equity. The following ease is stated in the bill. The orators are Daniel M. Farrar and David Pearson1,, late partners under the name of Pearson & Farrar, and5 Daniel D. Foster. The respondents are Ebenezer B. Walker, Lewis Broad and Edwin Fuller, partners under the name of E. B. Walker & Co. and Alpheus Crosby, David W. Farrar and Edward P. Kimball.

Assumpsit, founded upon a promissory note of the following tenor and date:— “ Keene, Dee. 25,1851. Ninety days from date, we promise to pay the Cheshire Bank, or order, at their banking house, one hundred and fifty dollars, value received. Amasa Thompson, Amasa Aldrich.” In the first count in the writ, the plaintiff declared on the note as payable to himself, by the name of the Cheshire Bank. In the second count, he declared on it as payable to bearer. Thompson was defaulted.

Writ op entry to recover certain lands, situated in Claremont, lately occupied by Leonard Gilmore and Hiram Gilmore, comprising a tract of land lying upon the west side of the road, called the blacksmith shop plot. And also, a tract of land on the east side of the road, called the grist mill plot. The action is brought by Dwight Jarvis and Jabez B, Uphami administrators of George B. Upham, against Lyman Brooks and Daniel J. Warner, administrators of Nathaniel Grout.

Case, for slanderous words spoken of Elizabeth, the wife of the plaintiff. The second count alleged that the defendant, on the tenth day of January, 1851, “ in a certain discourse which he then and there had of and concerning the plaintiffs, in the presence and hearing of divers persons, did maliciously and falsely speak and publish of and concerning the said Elizabeth, &c., &c. ■ The defendant objected that this count was defective for want of a proper colloquium,.

<p>Foreign attachment. The plaintiff brought an action against John Sabin, and summoned Seth Johnson and Willard Thorndike as trustees. The suit was brought on a note dated on the 1st of November, 1843, made by Seth Johnson, for $500, and payable to John Sabin, or order, on demand, with interest annually. The interest was indorsed in the month of November, in each year.</p> <p>John Sabin, whose affidavit was taken by agreement, deposed that he never held any note or claim against Seth Johnson, that he never did any business with him., and never to his knowledge saw him.</p> <p>Elias Bates stated that Silas H. Sabin, late of Claremont, died in the month of July, 1850, and that he and Silas A. Sabin were the executors of his will. Among the effects was the note above described, the body of which, and all the indorsements thereon excepting the last two, were in the hand-writing of the deceased, and it was secured by a mortgage, and has always been in the possession of the executors. Johnson has paid the interest on it, and John Sabin has never made any claim to it.</p> <p>The note was scheduled by the deceased with the rest of his assets, and Silas A. Sabin testified that the deceased was in the habit of lending money on notes and mortgages, taking the securities in the names of his different relatives ; that he never surrendered his right to them when he retained possession of the papers, but considered them as his own property, and such was the case with the note signed by Johnson.</p> <p>The trustee, upon his examination, made the following statement:—</p> <p>“ There is outstanding against me a certain promissory note, dated Nov. 1, 1843, given for $500, made payable to John Sabin, or order, on demand, and interest annually, on which the interest is paid and indorsed up to Nov. 1st, 1851. Said note is signed by me, and I owe the same to some one. The note is secured by a mortgage on my real estate in Cornish, and the mortgage is running to John Sabin, his heirs and assigns. I received the consideration of the note from Silas H. Sabin, late of Claremont, deceased, and did the whole business with him, and I have ever paid the interest on the note to him up to his decease. Since his decease I have paid the interest to his executors. A true copy of the note is attached to the affidavit of Elias Bates herewith. I further say I have never known John Sabin personally, and never did my business with him.</p> <p>Int. 2. At the time you gave the note and mortgage did not Silas H. Sabin say to you that he acted as agent for his son, John Sabin, or words to that effect.</p> <p>Ans. by trustee. He did, surely. He pretended that he was doing business for John Sabin. I said to him, ‘ Dr. Sabin, I cannot be under the necessity of paying him the principal and interest in Boston.’ His reply was, ‘you need not trouble yourself about that, as you will always find the note in my possession.’</p> <p>Int. 3. Did not Silas H. Sabin say to you, at the time you gave the note and mortgage, that the money he let you have was his son John’s, and that it surprised him that he (said John) should make money as fast as he did at dentist business, or words to that effect ?</p> <p>Ans. by trustee. He did to that effect. I cannot say he openly said it was John’s money. He made this expression : ‘ It is surprising how much money John makes in the dentistry business.’</p> <p>Int. 4. Do you recollect anything further that Silas H. Sabin said about its being John’s money ?</p> <p>Ans. I do not.</p> <p>Int. 5. Was Silas A. Sabin present when you gave the note and mortgage or not ?</p> <p>Ans. I should not think he was.</p> <p>Int. 6. Was there any other person present when the note and mortgage were given ?</p> <p>Ans. I cannot say certainly, but think not. I cannot recollect of any one being present.</p> <p>Int. 7. Have you ever paid to John Sabin, or to any other person, the sum of money mentioned in the condition of the mortgage deed, a copy of which is herewith exhibited, marked G. on the back thereof? — and please annex the copy to your disclosure, so as to make it a part thereof.</p> <p>Ans. I have not; and do not owe the same to Sabin or any other person, except that the sum mentioned in the mortgage deed is the same indebtedness included in the note herein described before by me. I hereunto annex the copy, as requested. I verily believe said mortgage deed to be the same one mentioned in my answer to the 1st interrogatory, but cannot say certain, as I have not the original mortgage deed in my possession, or within my present reach.”</p> <p>The above statement was confirmed by Silas A. Sabin, the other executor,' who said, also, that he personally knew that the testator furnished the money for which the note was given, and that it was his individual property, and that John Sabin never had any interest in it.</p>

Case. The declaration alleged that on the 1st day of September, 1848, the defendants, in consideration of the delivery of certain hides to them, by the plaintiff, for safe keeping, undertook to keep them safely, but they were not safely kept; by reason whereof they became of no value, &c. At the trial, upon the general issue, it was not denied, and it appeared in evidence that on the 12th and 13th days of April, 1848, about one thousand hides were sent, by the plaintiff’s…

Trespass, for false imprisonment. The defendants pleaded severally the general issue, and a justification under an execution against the plaintiff and others; Blanchard claiming as a party in interest with one Blodgett, by virtue of an assignment of the exécution by one Hub,bard to them; and Powers, the other defendant, justifying as the servant of Blanchard. On the trial, two main points arose for the determination of the jury.

Trespass, brought to recover damages for taking one red cow, of the value of $25, and one yearling steer, of the value of $12, in all of the value of $37, property of the plaintiff, alleged to have been wrongfully taken and converted to his own use, by the defendant, at Henniker, on the 12th day of February, 1849.

Indictment. On the 5th day of September, 1853, a complaint was made to a justice of the peace in the city of Concord, that Esther Arlin, on the 28th day of August, 1853, feloniously did steal, &c., one gold locket, of the value of ten dollars, and one gold pencil case, of the value of three dollars, of the goods and chattels of Eliza A. Green. Upon this complaint said Arlin was arrested and brought before a police justice, by whom she was bound over to this court.

<p>If one of two partners sell spirituous liquor unlawfully, the other party is liable, if the sale was made in pursuance of an understanding between them,, and for their joint account and benefit.</p>

Petition for the discontinuance of a highway in Hopkinton. The petition, which prayed for the discontinuance of a highway not constructed or opened for public travel, ha'ving been referred to the road commissioners, their report was presented to the court of common pleas in this county.

Assumpsit, to recover $700, -upon a policy of insurance, dated September 10,1850. On the 9th day of September, 1850, one Lorrin Miller, of Richford, Vt., made application to the defendants for insurance upon certain real estate, situated in said Richford.

Assumpsit, on a policy of insurance for the sum of $400, issued by the defendants to the plaintiff-, on the 10th day of July, 1847, for the term of six years. It appeared that the plaintiff became the owner of the land and building on the 15th day of May, 1847, and paid for them $100 in cash, and $200 in various articles of barter, not equal to $200 in cash, making the nominal consideration of the property to be $300. There was about one and one-fourth acres of land.

Assumpsit, upon a policy of insurance against fire, for $300, on the plaintiff’s building, finished partly into a dwelling house and partly into a store, and $300 on the stock in trade in the store. Plea, the general issue.

<p>Where the statute provided that upen a complaint made under the bastardy act, the justice of the peace before whom the complaint was made might order the person charged to give bond with sureties, conditioned that the respondent should appear at the term of the court of common pleas next to be holden within and for the county in which the offence was charged to have been committed, and answer to the complaint and abide the order of the court thereon: Held, that if the respondent were present at the court specified in the bond, and answered to the complaint, and was there ready during the term to abide any order of the court, the condition of the bond would be kept; that such a bond did not remain in force after the first term.</p> <p>X?. being arrested upon a complaint under the bastardy act, gave bond to appear at the next term of the court of common pleas for the county, with this condition: 11 Now if the said P. shall appear at said court, at the time and place aforesaid, and shall answer to said complaint, and abide the order of court thereon, then this obligation shall be void, otherwise in full forceon a suit upon the bond tbe defendants pleaded that P. did appear at the term of the court specified in the bond; that he answered to the complaint, and was always ready, •during the term, to abide any order of the court, yet the court did not at any time during the term make any order on the complaint, but then and there, without the consent of the defendants, continued the complaint to the next term. On demurrer to this plea — held the plea to be good.</p>

Appeal, from the decision of the commissioners, assessing damages for land taken by the defendants, the appellees. The petition was dated and filed at the October term of the common pleas, 1849.

Replevin, for six steers, alleged to be the property of the plaintiff, taken by the defendant in a close in Chichester, in this county, on the 25th of May, 1850. The defendant pleaded— 1. That the steers, at the time of the taking, were the property of one Nathaniel Edmunds, and not the property of the plaintiff, and tendered an issue thereon, which was joined by the plaintiff. 2.

Case, for damages sustained by reason of an injury to the wife of the plaintiff, while travelling upon a public highway in said town, from an alleged defect therein.

Assumpsit, for a coat sold, &c. The defendant bargained with the plaintiff for a coat to be made from materials selected by the défendant, and when made, to be sent to him. The plaintiff warranted the coat to fit, and if it did not the defendant might return it. The coat was accordingly made and forwarded to the defendant.

Replevin, for certain cows. The defendant avowed and justified the taking, because, as he said, the close was his soil and freehold, and the cows were doing damage therein, and he impounded them in the public pound, in Amherst, on the fifth of September, 1849, and left with the pound keeper an estimate of the damage done, and the amount of the fees for impounding, and within twenty-four hours from the time of impounding, delivered to the plaintiff a notice in writing,…

<p>The defendants requested the travelling agent for the plaintiff, who lived in New York, to send to the plaintiff an order for certain liquors, which was done, and they were sent on by the plaintiff, and received by the defendants. They were directed to “ Bailey & Greeley,” or to “ B. & G., Nashville, N. H.” The plaintiff had a license to sell liquors in New York, but not in New Hampshire. Held, that the sale and delivery were in New York, and that the price of the liquors could be recovered in this State.</p>

<p>Before the eighth day of ^February, 1851, the Massabesick Engine Company purchased certain articles, which were paid for partly out of the common treasury of the company, and partly by the contributions of its members. The company was in the service of the city of Manchester. On the 7th of Eebruary, the company voted to withdraw from the service of the city, and appointed the defendants a committee to remore the articles. Those who were opposed to this course filled up the places of the persons who withdrew, and then united with those newly appointed in bringing this suit. Held, that they had no better title than the defendants, and that the action would not lie.</p> <p>In replevin, the defendants filed a brief statement that the goods replevied were not the property of the plaintiffs, but of the defendants. Held, that the affirmative was on the plaintiffs, and that they were bound to offer evidence of property.</p>

Trespass, for an assault. Upon the general issue it appeared that the plaintiff and defendant, being engaged in an angry altercation, the defendant stepped into his office, which was at hand, and brought out a gun, which he aimed at the plaintiff in an excited and threatening manner, the plaintiff being three or four rods distant.

Assumpsit upon a promissory note, dated December 14, 1850, for §100, payable to Solomon Woods or order, on demand with interest, and by him indorsed to the plaintiff.

Assumpsit for money had and received, and money paid. In the specification filed the plaintiff claimed $4122,90, for money by him paid in discharge of a note for $3800, dated September 12,1844, signed by the plaintiff and defendant, and James McQ,uesten and G. W. Morrison, and also in payment of $7 for a bill of costs in an action upon said note. Said note was payable to the Derry Bank in one year, with interest.

Assumpsit, on an account and promissory note. The case was committed to an auditor, from whose report the following facts appeared : The plaintiffs’ account consisted of nine separate bills, numbered from 1 to 9, inclusive, as follows: 1849, March 24.

Indictment, for stealing a wallet and two one hundred dollar bills, the property of Willard S. Carkin. On the trial Carkin testified that on a certain occasion he took out his wallet, which then contained two one hundred dollar bills, and paid a little change to the prisoner, but on his way home missed the wallet and money.

Case, for deceit in the sale of a horse. The principal defendant resides in Groton, Massachusetts, and resided there at the commencement of the action. No personal service has been made on the defendant, but at the time of the service upon the trustee, a certain sum of money was in the trustee’s hands, belonging to the defendant.

Assumpsit, on a promissory note, dated December 1,1848, by which the defend ants, jointly and severally promised to pay the plaintiff, or order, the sum of $200, on the first day of January, 1851, with interest, annually. There was also a count for money had and received. Plea, the general issue, with a set off. It appeared in evidence that Samuel Simpson was the plaintiff in interest, and his son, Samuel M. Simpson was a witness for the plaintiff.

Writ of Entry, to recover possession of a tract of land in Manchester. On the 21st day of December, 1847, John Hall made his will, by which, with other bequests, he gave to his wife, Elizabeth, the use of one third part of his house, and certain other privileges, to hold during her life, in satisfaction of her dower, with remainder to his son, Henry C. Hall, the tenant.

Assumpsit, on a promissory note, dated on the tenth day of August, 1849, and payable to J. G. Bancroft & Co., of whom the plaintiff is the surviving partner, for the sum of $25. Under the third count in the declaration, the plaintiff filed a specification, being a bill of items amounting to the sum of $114,62, all of which was for liquors, except the sum of $6,90. The balance due, according to the specification, was $27,18.

Trespass, for taking and driving away the plaintiff’s cattle. The action was entered at th.e October term of the common pleas, 1851, and both defendants then appeared. From that term the action was continued from term to term up to the October term, 1853, when, before the commencement of the trial, Lovering became defaulted. No damages were then assessed against him, it being deferred till the result against Locke was determined.

Writ of Entry, dated October 10, 1851. The following facts were agreed upon by the parties.

Assumpsit, upon two receipts for property attached in the following form: “ Sept. 16th, 1851. .

At a former term a verdict was returned for Young, and the superior court, prior to October term, 1851, upon a case transferred upon exceptions taken at the trial, ordered judgment to be rendered upon the verdict. At the said October term, Dearborn suggested that he had a discharge, under seal from Young, and the action was continued. At the April term, 1852, Dearborn brought in an agreement, as follows:— “ Hillsborough, ss. Court of Common Pleas, April Term, 1852.

Writ of dower. The parties agree that the plaintiff is entitled to dower in the premises described, as the widow of Luther Burge, now deceased, unless the court shall be of opinion that she is barred by reason of her having set her hand and seal to a mortgage deed of the same premises, duly made and executed by her late husband, under which the tenant, Smith, holds the property, she having at the time she executed the said mortgage, no interest in the premises, except her…

Trespass. The parties ágree that John Walker was seized of the premises in which the trespass is alleged to have been committed, on the 28th of February, 1840, and. on that day mortgaged the same to Daniel Walker, the consideration expressed in the mortgage deed being f 1,195. On the 14th of December, 1844, John Walker sold the premises, by deed of warranty, to Nathan Warren, the plaintiff.

The petition alleges that “ the public good requires that a highway should be laid out in the town of Hudson, in this county, beginning at a stake and stones, on the north, side of the road leading from Nashua to Derry, near the. graveyard in Hudson, then running to a stake and stones on land of Foster Avery, on the town line between Hudson and the town of Londonderry, and about two hundred and forty-three rods northerly from the place of beginning.

Assumpsit upon a promissory note, dated October 1,1838, for $397, payable on demand. Plea, the general issue, accompanied with a brief statement of the statute of limitations. A verdict was returned for the plaintiff, upon which it was agreed judgment should be entered, or that the same should be set aside and a new trial granted, according to the opinion of this court, upon the following facts. The defendant, at the date of the note, resided at Exeter, and was married.

<p>A person who makes a written agreement to graft apple trees, is bound to furnish whatever is necessary for that purpose.</p> <p>Upon a written contract to graft apple trees, the plaintiff alleged that the defendant provided part of the scions, and introduced evidence to that effect. The contract was made on the 6th of April, and the evidence was that in the month of May the defendant proposed to furnish the scions. Held, that this evidence was competent, as it tended to corroborate the plaintiff’s witnesses, who testified that the defendant furnished a part of the scions, and also because it did not appear to have been made before the written contract was entered into.</p> <p>The plaintiff agreed to graft some trees in the years 1847 and 1848. He performed the contract in part in 1847, and offered to complete it in 1849, but the defendant told him he did not wish him to do it then, but that he might come the next year. Held, that even if the plaintiff’s offer in 1848 was too late in the season, the statement by the defendant that he might come the next year was a waiver of any exception on this account.</p>

Assumpsit, upon a promissory note, dated May 3d, 1848, for the sum of $500, signed by Samuel W. Pingree, and payable to David Currier, or order, in six months after date, and indorsed by the parties to this suit. The writ contains counts for money paid and money had and received. Prior to 1846, Pingree was engaged in carrying on business as a tanner and currier, at Auburn, in this State, in his own name.

In Equity. The bill was brought by Nathaniel Ladd against Daniel W. Ladd executor of the will of Lydia Watson, Matthew J. Harvey executor of the will of L. W. Harvey, Dudley L. Harvey, Nathaniel G. Harvey and ■William Plumer.

Case. The declaration, alleged in substance, that the defendants, on the 14th day of September, 1848, bargained to the plaintiff 60-h pounds of beef, for a sound price, for good and wholesome beef, and although well knowing the same to be corrupt, unwholesome, and unfit for use, did then in. fact fraudulently, falsely, and deceitfully, sell said beef to the plaintiff for good beef — wholesome and fit for use, and as being properly slaughtered and dressed — and that the beef…

Petition for Review. The petition alleged that the petitioner, being of the city of Boston, in Massachusetts, was impleaded by the petitionee, Samuel Whidden, of Portsmouth, in this county, at the September term of the court of common pleas, 1849, in a plea of the case, and that judgment was then and there rendered against the petitioner for $108,90 damages and $5,41 costs of the suit, and that execution was issued on said judgment.

Information for neglecting to make and repair a highway. The information was filed at the common pleas, holden at Exeter, on the second Tuesday of February, 1852, and commenced in this wise: “ Be it remembered that John Sullivan, Esquire, attorney general for the State aforesaid, being here in court, gives the said court to understand and be informed that on the first day of January, in the year of our Lord one thousand eight hundred and fifty-two, there was, ever since has…

Petition for a certiorari’, addressed to the justices of this court, at Concord, on the second Tuesday of July, 1853.

Assumpsit, to recover the amount of three several promissory notes of the defendant, to wit, 1st, one note for $200, dated Nov. 30, 1847, signed by the defendant, and payable to the plaintiff in one year, with interest. On this note was indorsed as follows: 1848, May 27, received interest till the 1st day of April next. 1849, January 10, received §175. 2.

Writ of Dower. The parties agreed upon the following facts, and that judgment should be rendered thereon according to the opinion of the court. Peter Dustin, jr, now deceased, was the husband of the plaintiff, and seized in fee of the land described in the writ during her coverture, to wit, on the 27th day of July, 1819, and conveyed the same with full covenants of warranty, in fee and in mortgage, to Jonathan Dustin.

In the petition it was alleged that Ebenezer Buzzell & a. filed their petition in the court of common pleas at the August term, 1851, setting forth that there was occasion for widening and straightening a public highway in said town; that the selectmen of the town, on petition to them therefor, had refused so to widen and straighten said highway, and praying that the same be widened and straightened.

In equity. The bill alleges that on the 26th day of March, 1841, Reuben Miles of Madbury, father of the orator, Abraham Miles, made and published his last will and testament; and on the 7th of August, 1841, made and published a codicil to his will. That Reuben died in Madbury, on the 23d day of June, 1845, and on the 1st day of July, 1845, the will and codicil were duly proved and allowed.

Case, for disturbing the plaintiff’s right of way. The writ was dated on the 31st of December, 1850.

Foreign Attachment. At the January term of the common pleas, 1853, a commissioner was appointed to take the disclosure of the trustee, in vacation, and at the August term of the common pleas, 1853, the commissioner made, in substance, the following report, to wit:— Strafford, ss., August 13,1853. Boston and Maine Railroad against George S. Oliver, and Salmon Falls Bank and William H. Morton, Trustees.

Trespass on the case. The declaration contained two counts, as follows: 11 In a plea of trespass on the case, for that whereas the defendant was, is, and for many years last past has been, a physician and a surgeon, and during all the time aforesaid had exercised and carried on, and still exercises and carries on, the art, mystery and profession of physician and surgeon, to wit, at Strafford aforesaid; and while the said defendant so used, exercised and carried on the said…

In Equity. The bill sets forth, that in 1816, Samuel Jones owned land in Farmington, through which the Cochecito river flowed. In that year he and others jointly put in operation a saw mill, called the Jones mill, and built a dam which flowed a part of this land, and much land of others. Part of Jones’ land was used for a mill yard. The mill was divided into twenty-four equal parts or days. The land of Daniel Watson was flowed and injured by the dam without his consent.

Bill in Equity. The bill alleges that, May 22, 1845, Plumer P. Wood purchased of J. B. Wood a lot of land at Great Falls, and, on the 31st of July, 1845, he purchased of G. Young an adjoining lot, and on the same day mortgaged the last lot to E. Wood, to secure §300. On the 15th of October following, he mortgaged both tracts to L. S. Hill, to secure §400 on a note, dated April 3,1842, §600 on a note, dated October 7, 1844, and §300 on a note of October 15,1845.

At the February term of this court, 1851, a trial was had in the case, and a verdict taken for the plaintiff. The case was transferred to the superior court, and by that court it was decided that the verdict should be set aside, and a new trial be had. No trial has been since had, but at a subsequent term of the court the plaintiff was nonsuited by his own consent. The defendant then moved for a judgment and execution for costs against the plaintiff.

Trespass, to recover the value of a cow alleged to have been taken on the 20th of August, 1850.

Covenant broken, upon a lease for rent. The lease was executed January 28,1847, and was for the Mount Washington House and farm, situated in Carroll, in the county of Coos, for the term of five years, commencing March 20, 1847, and ending March 20, 1852. The rent was to be paid annually, on the first day of September in each year, and was to be $800 a year for the first two years, and $1000 a year for the remaining three years.

<p>A judgment of a court of competent jurisdiction, upon the matter directly in issue, is conclusive between the parties.</p> <p>A judgment for costs, awarded to a trustee upon his disclosure, is conclusive, in an action of debt upon the judgment.</p> <p>Such judgment cannot be impeached by a plea that the disclosure was false, or fraudulent, or perjured.</p>

These were actions of trespass, for taking, carrying away and converting to the defendant’s own use, certain hay of the plaintiff. The defendant pleaded the general issue, and filed a brief statement, that the property was taken by him as a sheriff, by virtue of an execution against Ladd. The hay was cut upon a farm in the occupation of Ladd, under a lease from the other plaintiff, Moulton.