Volume 28 — New Hampshire Reports

Assumpsit, on an account annexed to the writ, amounting to the sum of §60. There were ten items in the account, running from July 28th, 1850, to August 22d of the same year. The account was headed as follows: “ To sundry visits and medicines for James Ham’s family, sick with the' small pox;” and the items were all alike, being, in each instance, “ To visit and medicine, §6,00.” The writ was dated April 16th, 1852, and contained but the one count above stated.

Petition for a discharge from arrest and for a discharge of bail. The writ upon which the arrest was made was dated in March, 1852, and the action entered at the May term of the court of common pleas. The action was founded on a note of hand, made by the defendant, in 1847, at Tamworth, in this county, and payable on demand, with interest.

Trespass qucere clausum fregit. The writ was capias and attachment.

Assumpsit, -upon a promissory note, as follows: “ Bath, Septr. 28, 1847. We, the committee of the First Universalist Society, in Bath, N. H., jointly and severally promise to pay A. R. Abbott forty-one dollars and eighteen cents, with interest, for his services as pastor of said society. Ira Walker, Joseph Fifield.” INDORSEMENTS. “ Society note,.................................$41,18 Nov. 10, 1847. Received on the within,........... 10,00 Mar. 10. 1848.

Assumpsit. The writ contained two counts. The first alleged that the plaintiff, on the 14th of January, 1843, gave his promissory note to one Lemuel Dexter for $35, payable in September following, and that Dexter indorsed the note to the defendant, who became the owner; that the plaintiff, on the 30th of April, 1843, transferred and delivered to the defendant two promissory notes and an account, amounting in all to $19, in part payment of the first-mentioned note, and the…

Case. In the declaration was a count in trover, and a count in which the plaintiff alleged that one Chase was indebted to him upon a promissory note, and he was also surety for Chase upon another note to a third person; that Chase made to him a mortgage of boots, shoes, &e., to secure the payment of the note to him, and to secure the plaintiff against loss from his liability as surety, which mortgage was duly executed and recorded ; that Chase was insolvent, and had no…

Assumpsit. The defendants are sued as surviving partners of the late firm of James Briggs & Brothers, consisting of the defendants and Joshua Briggs and John Briggs, and the declaration contains only one count, a copy of which is as follows: In a plea of the case for that the said James Briggs and John Andrew and Joshua Briggs and John Briggs, in the life time of the said Joshua Briggs and John Briggs, on the thirteenth day of September, in the year of our Lord eighteen…

Case, for an injury alleged to have been sustained by the plaintiff, through a defect in a certain highway in the town of Thornton, in March, 1851.

<p>A gift of chattels, accompanied by delivery, is valid and irrevocable, unless it be prejudicial to creditors, or the donor was under a legal incapacity, or was circumvented by fraud.</p> <p>Where such a gift is made, accompanied by delivery, the subsequent execution of a will by the donor does not operate to make void the gift, even though the property may fall within the provisions of the will.</p> <p>Where A. made an assignment in trust, for the benefit of his minor children, of certain promissory notes, and indorsed and delivered the same to the trustee, and afterwards made his will, giving his wife one-third of his personal property and her dower in his real estate, — Held, that the wife was not entitled to any share of the notes so given to his children.</p> <p>An executor or administrator is not bound to enforce the collection of a doubtful claim, at the expense of the estate, without being indemnified for costs, by the heirs at law, or those interested in the collection.</p>

Assumpsit, for labor and materials done and furnished, for the repair of the school house of district No. 10 in Canaan. The defence was, that the repairs were not made by the authority of the district. It appeared that on the 10th of March, 1851, Dexter Harris was prudential committee of the district.

Scire facias against the defendant, as bail of one Hart-well, on a writ in favor of the plaintiff against him. The plaintiff, having produced the proper record evidence to sustain the scire facias, the defendant introduced the following evidence, and contended that upon the facts proved by him, he was discharged from his liability as bail.

Petition for a new highway, in Grafton and Enfield. It was referred to the road commissioners, who, at a subsequent term, reported adversely to the prayer of the petitioners, and their report was accepted. The said towns of Grafton and Enfield, severally, prayed judgment for their costs against the petitioners, which motion was resisted by the petitioners, and upon this question the case was transferred to this court.

Assumpsit, for supplies furnished to Joseph Chase and his family, paupers, chargeable to the town of Stewartstown.

Trespass, for breaking and entering the plaintiff’s close. in Stratford, on the 1st of January, 1837, being one undivided third part of the Noah Hatch farm, and from that time to the first of October, hindering and keeping the plaintiff out of the possession of it, whereby he was during all that time deprived of the use thereof. Plea, the general issue.

Assumpsit. The declaration contained a count for money had and received. The defendant was summoned to answer to the plaintiff for not paying him a certain sum for money paid and laid out. The defendant pleaded in .abatement, because the summons did not contain the substance of the plaintiff’s writ, in not requiring him to answer to the plaintiff for not paying him for money had and received by the defendant.

Trespass for tearing down, destroying and burning the plaintiff’s dwelling-house. The trespass proved was the burning of the house.

The petition stated that, under a license formerly granted to the petitioners for the purpose, they proceeded, after taking the oath by law prescribed, to sell the real estate of the intestate; but owing to the loss of the certificate of the oath, they are unable to make proof of having been sworn; in consequence of which the sales are liable to be rendered void, and the purchasers to be subjected to loss and injury; wherefore they pray for a license to be granted them to…

Trespass for a horse, which the plaintiff purchased of one Dennison, paying $75 in cash, and giving his notes, secured by a mortgage of the horse, for the balance. West defended as assignee of the mortgage to Dennison, to whom he had, at the plaintiff’s request, paid the amount due thereon. Bellows defended as the servant of West. West took the horse on the mortgage, and, to close it, advertised him for sale.

Trespass, for breaking and entering the plaintiffs’ close, situated in Bartlett, in the county of Coos, on the first day of December, 1848, and on other days and times between that day and the 29th day of January, 1850, the day of the date of the plaintiffs’ writ, and cutting down and carying away one hundred of the plaintiffs’ pine trees, of the value of one thousand dollars, and five hundred of the plaintiffs’ spruce trees, of the value of one thousand dollars.

Case, on a warranty. The declaration was as follows: “ In a plea of the case, for that the said Abraham Bedell, jr., heretofore, to wit, on the first day of August, A. D. 1851, at said Lancaster, by request of the said Calvin P. Stevens, purchased of him a note, signed by Alfred Carlton, and made payable to one A. V. Stevens, or bearer, in the sum of fifty-five dollars and fifty-nine cents, on demand, with use, and that the said Calvin P. Stevens affirmed the said Carlton…

Trespass on the case. The declaration was as follows: In a plea of trespass on the case, for that the said J. & J. (defendants,) on &c., at &c., being possessed of one mare, of a dark brown color, which mare was unsound and infected with a bad and inveterate disease, commonly called glanders, which rendered the said mare good for nothing; and the plaintiff being then and there also possessed of another mare, of a bay color, of his own proper mare, of the value of §5100 ; the…

<p>Where goods are sold, the sale of a portion of which is prohibited by law, and the sale is not for a gross sum, as the price of the whole, but at stipulated prices for the prohibited goods, and at stipulated prices for the residue, the illegality of the sale of the portion prohibited will not render the sale of the residue illegal.</p> <p>If a portion of the goods sold for the price of which the action is brought are goods the sale of which is legal, the officer who makes the attachment of goods, as the property of the debtor in the action, if the goods so attached are claimed by another, in virtue of an alleged sale from the defendant to him, will be entitled to give evidence to impeach the sale to such claimant, on the ground of fraud, in an action commenced by him for the property, even though the sale of the residue of the goods sued for be prohibited by law and void.</p> <p>The application, by the officer, of the avails of the sales of the goods attached, upon the execution issued upon the judgment rendered for the price of the goods the sale of which is prohibited, as well as the others, to a greater amount than the price of the goods the sale of which is not prohibited, and the costs of the suit, will not render him liable as a trespasser ab initio, and an action of trespass will not lie against him therefor.</p> <p>Whether assumpsit, for money had and received, will lie against him, qucere ?</p>

Debt, founded on a judgment recovered in Vermont, and also on a promissory note. To the counts on the note the defendant pleaded the statute of limitations, non accrevit, &c., to which there was the general replication of accrevit, &e., and issue was joined thereon. The note was dated and payable more than six years prior to the commencement of this suit. On the trial the plaintiff offered evidence to prove an acknowledgment and promise to pay within six years.

<p>Under the provisions of the Revised Statutes, chap. 50, § 4, all petitions t© the court of common pleas in relation to highways, will be referred to the road commissioners, if no sufficient objection appears.</p> <p>Where a highway had been laid out in 1850, and discontinued by the road commissioners in 1852; and in 1854 a petition was presented for the same road to be laid out — held, that after the lapse of two years from the discontinuance of the road, the presumption would be that a new casé had arisen, and that the petition should be referred to the road commissioners.</p>

Trespass, for running over eleven of the plaintiff’s sheep, with the engines and cars of the railroad company, and destroying them. It appeared in evidence that the railroad company owned a strip of land between their road and the land owned by the plaintiff. There was no fence between the plaintiff’s land and the land of the company, or between the plaintiff’s land and the railroad track.

This case was submitted to the superior court, for the decision of the points arising therein, upon the following agreed statement of facts.

Scire Facias, on a recognizance for $600, entered into by the defendant and one Nathaniel Shackford, before C. E. Potter, Esq., justice of the peace and quorum throughout the State, at Manchester, on the 23d day of April, 1853.

An information against the town of Canterbury, for neglect to build part of a bridge, was as follows: STATE OE NEW HAMPSHIRE. MERRIMACK, SS. Court of Common Pleas, in vacation after October term, A. D. 1851.

Assumpsit, on a policy of insurance, issued by the defendants to B. Grant & Co., on the 30th day of October, 1849, and by them duly assigned to the plaintiff. The insurance was for the sum of $1,400, on merchandize, set forth in the application for insurance, to be of the value of $3,000. The property was destroyed by fire April 3, 1851, and due notice of the loss was given to the defendants.

Petition, for a highway in Hooksett, in this county. The road commissions reported the laying out of a highway upon the route prayed for, as follows: “ Beginning at a stake in the travelled part of the highway, eight rods from the south end of the bridge in said Hooksett village, owned by the, Londonderry Turnpike Corporation; thence north eight degrees west, over and across Merrimack river, forty-one rods; thence north fifty-one degrees west, seven rods, to a stake, &c.;…

Debt, on a bond. The pleadings, after the declaration, were substantially as follows: And the said Melvin comes and defends, &e., when, &c., and prays oyer of the said writing obligatory in the said declaration mentioned, and it is read to him in these words, &c. And the defendant also prays oyer of the condition of the said writing obligatory, and it is read to him in these words, to wit: “ The condition of the above obligation is such that whereas the said Abraham Melvin…

This was an action of trover, brought to recover the value of a horse, wagon, and two cases of hats, alleged to have been converted by the defendant, on the twenty-fifth day of September, 1851. The property in question was attached by the plaintiff, as deputy sheriff for this county, on the 25th of September, 1851, on two writs, in favor of George A. Whitney against J. B. West & Brothers, and delivered by him to the defendant, on his receipt therefor.

This is an action of trespass quera clausum fregit. It was commenced before a justice of the peace before whom the de» fendant pleaded the general issue and six special pleas, alleging title, and thereupon the action was entered in the court of common pleas, at the March term, 1852.

Assumpsit. The declaration contained counts upon several promissory notes, and also a count for goods sold and delivered. It appeared, by the admission of the parties, that in the year 1850, the plaintiff agreed to sell to the defendants his stock of goods and groceries. The price to be paid was the cost and freight of the articles. In order to ascertain the cost, a,schedule of the articles was made, and the cost of each article was separately earned out.

Petition of the city of Manchester for leave to discontinue a highway. On the filing of the petition, notice was given to all persons interestéd, by publication, agreeably to the order of the court. No party appeared to oppose it, and the petition was duly referred to the road commissioners.

Assumpsit, on a general count for goods sold, money lent and paid, money had and received, &c. The specification under this count was of a draft, dated at Boston, Massachusetts, August 20th, 1851, drawn by Montgomery & Co., on one Kimball, for $>1,200, payable to the order of the defendant in thirty days, and by him indorsed and transferred to the plaintiffs.

Foreign Attachment. The plaintiffs’ writ is dated December 10,1851.

Assumpsit. The second count was as follows: “ Also for that the said defendant, at said N., on the 28th day of May, 1846, by his promissory note, in writing, of that date, by him subscribed, for value received, promised the plaintiff to pay him, or order, four hundred dollars, on demand, with interest, which said note was given upon the condition that if the defendant should get the land that plaintiff’s grandfather mortgaged to Judge Parker, then said note to be paid,…

<p>A testator made the following bequest: “ Having implicit confidence in my beloved wife, S. G., I do hereby will and bequeath to her all the property, both real and personal, that I am possessed of, during her life, except my farm in Wendell; no part of the bank stock is to be disposed of unless her comfort should require it, but it is to be apportioned to my relations, according to her discretion, to be enjoyed by them after her decease.” S. G. was executrix of the will, and returned an inventory, amounting to $23,582,14 The bank stock exceeded the sum of 10,000. She pledged a part of the bank stock as security for $1,000, which she borrowed and gave her note for, and the stock was sold to pay the note. .The money thus borrowed she lent, and it was never repaid. She also borrowed sundry sums of money, to secure which she pledged the stock, which was sold to pay the debts. It appeared that her husband was a hospitable man, but lived within his income, but it did not appear that her comfort required her to expend any more money than he expended, although it appeared that she had incurred sundry debts. Held, that she was bound to make a judicious and reasonable use of the income of the property.</p> <p>That she was not authorized to sell the bank stock, for the purpose of lending the proceeds.</p> <p>Nor was she authorized to sell the stock to supply her necessities, if they arose from her extravagance or improvidence.</p> <p>But if she had managed the property with prudence, and the rest of the property had been exhausted notwithstanding, and her comfort required it, she would be authorized to sell the stock.</p> <p>That she had a right to expend sufficient money to enable her to live in the same style in which her husband lived, provided she did not encroach on the bank stock.</p> <p>That she was entitled to the use only, during her life, of the cash on hand at the time of the testator’s death; and her estate should be charged with the cash, hut not with'the interest upon it</p> <p>A bequest of personal property to a legatee for life does not vest the absolute ownership thereof in the legatee.</p> <p>Where a bequest of personal property is made to a legatee for life only, the estate of the legatee, after her death, is chargeable with the property.</p>

Assumpsit. The case was referred to an auditor, who made the following report: That warrants were duly issued by the selectmen of Epping, notifying the inhabitants that meetings would be held in Epping, on the 13th of March, and the 15th of May, A. D. 1849 ; that the warrants were legally served; that meetings of the inhabitants were lawfully held agreeably to the warrants; and that at said meetings the■ following votes were passed, in substance, the subject matter whereof…

Assumpsit. The writ is dated February 7th, 1852. On the day of its date the schooner Linda, then lying in Portsmouth harbor, was attached upon it.

Foreign attachment. The trustee, in his disclosure, being interrogated in relation to his ownership of a horse. wagon and harness, made answer that he purchased the same of the principal defendant, and held them under an absolute sale from the principal defendant to him.

Assumpsit, upon an account annexed to the -writ, which was for spirituous liquors sold in Boston, Massachusetts. The defendant propesed to show that the liquors were sold in this State, in violation of our law, and that the plaintiffs knew when they were purchased by the defendant that they were to be thus sold. The court ruled the evidence incompetent as showing any defence to the action.

Assumpsit, on a promissory note, dated November 18th, 1845, signed by the defendant for $54,62, payable to the plaintiff, on demand, with interest. Plea, the general issue. The defence relied on at the trial was, that the note was obtained by the fraud of the plaintiff, and also that it was given without consideration.

Trespass, for arresting the plaintiff on the ninth day of January, 1850, at Stratham, in this county, conveying her to Exeter, and confining her in jail until she paid the sum of $101,58. Clifford and Tilton justified as collectors of Epping; Clifford for 1846, and Tilton for 1847, and each as servant of -the other.

Trespass, for taking and carrying away certain of the plaintiff’s cattle. Plea, the general issue, with a brief statement, setting forth that the defendants, as selectmen and assessors of taxes, in the town of Stratham for the year 1849, lawfully assessed a tax against the plaintiff, a citizen of said town, and committed the same, with their warrant, for the collection thereof, to the collector of taxes, by whom said cattle were distrained for non-payment of said tax.

Trespass. The declaration alleges, that the defendants, at Stratham, on the 9th of January, 1850, assaulted, beat and imprisoned the plaintiff, until she paid $100.

Case, The writ was dated August 17,1847. The declaration is as follows: In a plea of the case, for that the said Bassett, on the 19th day of April, in the year 1839, was, and ever since has been, lawfully seized and possessed of two certain tracts of peat and meadow land, situate in Kingston, in said county of Rockingham, one tract containing about thirty-three acres, and bounded westerly by land of Capt. Daniel Col-cord, northerly by other land of said Bassett, which he…

In Equity. Ebenezer Yeaton made his last will and testament, which, after providing for the payment of his debts, contained the following passages: “ Item 1st. I give to Oliver Yeaton and wife, and Theodore Yeaton and wife, all of said Somersworth, the use and improvement of all that lot of land and buildings on which he and his father now lives and occupies, during the life-time of all or either one of them, and then to descend and go in fee to the children of the said…

Debt, on a judgment alleged to have been rendered iu the district court for the western district in the State of' Maine, held at Alfred, in and for the county of York, on the third Tuesday of October, 1849, in favor of the plaintiff' against Joseph Berry, deceased, and one Brackett Mer-. rill. The defendant pleaded, first, Nultiel record; and second, Ne unqués executor.

Issue on a petition for partition sent from the superior court. In 1765, Elijah Drew conveyed the tract of land, of which partition was prayed, to Staten Austin. At the time of this conveyance, this tract formed a part of said Drew’s homestead farm, and was taken out of it in such a way as to leave it surrounded on all sides by the remaining parts of the farm, and without any access to it except over the farm. Austin remained the owner of this tract till his death, in 1801.

Assumpsit, for money had and received by the defendant to the plaintiff’s use. Plea, the general issue. Upon the trial it appeared in evidence that the plaintiff, on or about the 12th of January, 1848, left with the defendant the sum of thirty dollars, on account of a suit which had then been commenced by the defendant against Samuel Laighton and Mark H. Winkley.

Assumpsit, founded upon the statute giving to any co-tenant a right to bring this form of action against one or more of his co-tenants, for the recovery of his share of the value of any trees destroyed, or other property severed or carried away from the real estate held by them in common. The writ contained three counts.

Assumpsit, upon a promissory note, dated June 6, 1838, for §163,91, signed by the defendant, and payable to the plaintiff, or his order, in two years from date, with interest. The plaintiff, in his specification, set forth the note in full, and also the following indorsements as being upon the same, to wit: June 17, 1839 — Received §46,67. September 18,1839 — • Received §8,00. November 13, 1841 — Received §20,00.

<p>Where, in trespass for damages done to the plaintiff’s close, by the defendant’s cattle, it appeared' that the defendant resided upon a farm with his father, of which the defendant had a deed and his father a life-lease, and the plaintiff’s evidence tended to show that the cows kept upon the farm had trespassed upon the plaintiff’s premises, but that the defendant owned but one cow, which was also kept upon the farm — Held, that the evidence was competent to be submitted to the jury, from which they might find a trespass by the cow of the defendant.</p> <p>By marriage, the husband, independant of all ante nuptial agreements, becomes the absolute owner of all the personal property in possession of the wife; and trespass can be sustained against the husband for an act done after the marriage, by an animal belonging to the wife at the time of the marriage.</p>

Covenant broken, upon a lease for rent. The lease was executed January 28th, 1847, and was for the Mount Washington House and farm, situated in Carroll, in the county of Cods, for the term of five years, commencing March, 20th, 1847, and ending March 20th, 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 f 1000 a year for the remaining three years.

Writ of entry, to recover lot No. 24, in the tenth range in Sandwich, in this county. The tenant disclaimed a part, and as to the rest pleaded the general issue. The demandant introduced a deed from Joseph Cilley to himself, dated the 13th day of November, 1845, which purported to convey lots Nos. 19 and 22, in the ninth range \ 17 and 19 in the twelfth range; and 24 in the tenth range, of one hundred acre lots in said town.

Trespass, for breaking and entering the plaintiff’s close, passing over the same with horses and carts, and injuring the grass, &c. The defendant pleaded the general issue with a brief statement that the acts complained of were done with the license and permission of the plaintiff.

Assumpsit. The action was commenced May 20,1848. The writ contains four counts — for money had and received, &c.; for goods sold and delivered, &c.; for work and labor, &e.; and for board and lodging, &c. The cause was submitted to an auditor, who reported a balance due to the plaintiff, subject to the opinion of the court, upon facts reported by the auditor, as follows: On the 27th of November, 1841, the plaintiff, Hiram King, gave his note to the defendant, Samuel…