Volume 29 — New Hampshire Reports

Case. The Concord Railroad Corporation was summoned to answer Harvey Murch, of, &c., in a plea of the case,, for that the defendants, at the time of committing the griev” anees hereinafter mentioned and before, were and now are the owners and proprietors of a certain railroad, called the Concord Railroad, for the conveyance of passengers in the cars of the said Concord Railroad Corporation, and in the cars of such other railroad corporations as the defendants permit to use…

Assumpsit. This action was entered at the court of common pleas for the Western Judicial District in this county, at the October term, 1851, and defaulted. There were previeras attachments upon the same property, which was attached in this action. This action was continued from term to term until the September term of said court, 1853, because j udgments were nGt entered in the actions in which the previous attachments were made.

Assumpsit on an account annexed. The items were as follows: For “ cash you agreed to pay me as awarded to me by L. Parker, Esq., on reference about sheep you had of mine, fifteen dollars. To cash paid said Parker, for his fees for you, one dollar. To interest, five dollars.” There was a count, also, for twenty-one dollars, money had and received by the defendant for the plaintiff’s use. The pleas were the general issue and the statute of limitations.

Complaint, under the bastardy act, in which it is alleged that the child was begotten in Lyman, a town in the Western Judicial District, in said county.

Assumpsit, on an account annexed to the writ, amounting to $51,85 debt, with a credit of $14,76. The plea was the general issue, with a payment into court of five dollars under the general rule. The case had been referred to an auditor, whose report was laid before the jury as prima facie evidence of so much of the claim as he allowed ; being $46,57. The credit being deducted, left a balance of $25,81.

Assumpsit, upon a promissory note, dated January 11th, 1851, for the sum of f 100, payable to the plaintiff or bearer, on demand, with interest annually, and signed by one George Pearson and the defendant, Charlotte A. Pearson. The promise to pay was joint and several. The declaration also contained a count for money had and received. The defendant pleaded coverture.

Petition for a highway in the town of Canaan, in this county.

Case, to recover damages caused by the insufficiency and want of repairs in a highway in said town. Plea, the general issue. In September, 1850, Patterson, the plaintiff, was travel-ling in a carriage in the town of Colebrook, and, passing over a small bridge, was carried against a log about ten rods from it, and thrown out and much hurt.

Assumpsit, on a promissory note, dated January 18th, 1844, for the sum of §302,75, signed by the defendant, and payable to one Hannah Allen or order, on demand with interest annually, and by her indorsed to David Allen, the plaintiff’s testate. Plea, the general issue. On the trial the note declared on was produced by the plaintiff, and upon the back of the note was the name of Hannah Allen, in her own hand writing.

Assumpsit upon a promissory note, signed by the defendant, and payable to the plaintiff. Plea, the general issue. The defence relied on, at the trial, was that the note ins suit was given upon a sale, by the defendant, of spirituous' liquors without license, and in whole or in part, as a consideration therefor. The only question of fact which the evidence rendered necessary to be submitted to the jury was, whether the sale was made in this State or in Massachusetts.

<p>Where a deed is made without any consideration, there is no resulting use or trust for the benefit of the grantor, if a consideration is stated in the deed, or if a use is expressly limited in the deed of the whole property.</p> <p>The receipt of a consideration, admitted in a deed, cannot be contradicted for the purpose of raising a resulting trust for the grantor.</p> <p>If a use is expressly limited in a deed in favor of the grantee, no other use will be implied inconsistent with it, in favor of the grantor.</p>

Case, upon the statute for filling up and obstructing a certain highway in the town of Henniker, by the construction across the same of the defendants’ railroad.

<p>A mechanic’s lien upon property is lost hy discharging the debt which created the lien, and taking the note of a third person in payment.</p> <p>Where E. & D., partners, were indebted to H. & E. for labor and materials which might be a lien upon their buildings, and H. & E. discharged the debt against E. & D. and took the note of D. in satisfaction — held, that the lien, if any existed, was thereby lost.</p> <p>If an applicant for insurance against fire states truly the title of the property, and the incumbrances on the same at the time of making the application, and there is no provision in the charier or hy-laws requiring notice of subsequent incumbrances, a mortgage upon the property, executed after the making of the application and before the issuing of the policy, will not, in the absence of fraud, make void the policy.</p> <p>Where A. made a written application, on the fifth of October, for an insurance against fire, and a policy was issued on the 11th of the same month; and on the same day, (the eleventh,) he executed a mortgage upon the property— held, in the absence of fraud, and of any provision in the charter or by-laws requiring notice oí subsequent incumbrances, that the policy was not void.</p>

In chancery, upon a bill pending between these parties, it became material to show at what date a certain deed of mortgage of personal property, relied upon by the plaintiff, signed and sworn to, was executed. It was alleged by the defendants that this mortgage, though dated November 13th, 1848, was not subscribed, nor sworn to nor recorded until November 3d, 1851.

This is an appeal from a decree of a judge of probate for the county of Hillsborough, allowing the account of Courser, as guardian of Esty.

In Equity. The case stated is as follows: On the 30th of March, 1838, the defendant entered into certain agreements with, and made certain conveyances to the plaintiff relative to the disposition of the defendant’s property, and the plaintiff gave him a bond or other agreement, in writing, now in the possession of the defendant, and not under the control of the plaintiff, promising that the plaintiff would assist and do certain things towards the maintenance of the defendant…

Assumpsit, upon a note, of 'which the following is a copy: “ Fourth Class. For value received in policy No. 564, dated the 22d day of January, 1849, issued by the Atlantic Mutual Fire Insurance Company, I promise to pay said company, or their treasurer for the time being, the sum of one hundred and eighty dollars, in such portions, and at such time or times as the directors of said company may, agreeably to their act of incorporation and by-laws, require.

Case, against the defendants for unlawfully assessing a tax upon the plaintiff by the defendants, as selectmen of Bpping, in the year 1846, and compelling her, through their tax collector, to pay the… Held: of which the following is a copy, is to be so regarded : “ Stratham, March 28th, 1846. Due to Sophia Gordon, widow, ten thousand dollars, to be paid as wanted for her support; if no part is wanted, it is not to be paid.

iff, as widow of lands in Greenl-Wkit of dower, wherein the plain ■Lemuel Adams, claims dower in certair land, in this county. and during eoverPlea, traversing the seizure of the hus’ ture, and issue thereon.

Petition for a Mandamus. The petitioner, Andrew 3° Beck of Portsmouth, describing himself as city marshal of Portsmouth, alleged that at a meeting of the city council, held on the 27th day of May, 1853, a majority of the board of aldermen, and a majority of the common council being present and assembled in convention in the council chamber, he was duly elected on joint ballot by a major vote of the convention, and was declared by the mayor of the city to be duly elected city…

On the trial, it appeared in evidence that the defendants were incorporated by an act of the Legislature of this State, passed June 15th, 1814. Held: at which proceedings were had as set forth in the following extract from the records of said trustees: “ September 24, 1845. The trustees of the Pinkerton Academy met according to adjournment.

Tub petition in this case was filed at the September term, 1852, of the court of common pleas for this county, ■and was as follows: “ William J. Laighton of Portsmouth, in said county, trader, respectfully represents that on the 23d day of January last, Augustus Lord of said Portsmouth, merchant, sued out of this court his writ of attachment against one John Einnear of New Castle, in said county, shoe manufacturer, in which writ said Lord laid his damages upon the causes of…

Assumpsit, to recover the price of a quantity of hay sold and delivered to the defendant.

Petition for a new trial. The petitioner set forth that at a prior term he was, by a decree of this court, divorced from his wife, by reason of adultery committed by her; that she subsequently, upon her petition representing her condition as one of destitution, and that the present petitioner was possessed of a large estate, obtained a decree of this court allowing her $15.0 per annum, to be paid by this petitioner during her life, as and for alimony.

Indictment, found at the September term of the court of common pleas for this county, A. D. 1853, alleging that said Robinson, at Exeter, in said county, on the fifteenth day of March, A. D. 1847, did knowingly, wilfully and fraudulently conceal a large quantity, to wit, 200 pairs of boots, of the value of $400, of the property and personal estate of one John Rollins, then and there found and being, with intent to prevent the attachment or seizure of the same upon mesne…

Trespass quare clausum, originally commenced before a justice of the peace. The declaration alleged that the defendants broke and entered the close of the plaintiff, situated in Stratham, (without any other description of the premises,) and threw down his fence standing thereon.

Assumpsit, upon a promissory note, dated December 5, 1843, signed by the defendant and J. Norton and Thomas Norton, by which the signers jointly and severally promised to pay the Rockingham Bank $ 100, in thirty days, and grace. The writ was dated November 30, 1849. The plaintiff in interest was alleged to be James Smith, who was permitted by the common pleas to prosecute the suit, at the September term, 1853, the term at which the trial was had.

Writ of entry. The demandant was the admitted owner of the premises until the 16th day of September, 1823. In support of his title, the tenant introduced the following evidence. A copy of a mortgage to Wells Healey, dated September 16th, 1823, to secure a note for $931 and interest. A copy of a mortgage to Richard Greenleaf, dated January 31st, 1825, to secure a note for $275 and interest. These instruments purported to have been duly executed by said Lamprey.

Assumpsit, for $250, money had and received and paid, laid out and expended. In April, 1849, A. Staples gave a note, signed by himself, D. Pray, and T. G. Morse, for $455, payable to S. Lock, J. A. Smiley, and T. Shapleigh, or order, in ninety days, with interest. A few months afterwards, Lock, in whose hands the note then was, made a sale of it to the defendant, and delivered it to him, receiving the principal thereof in full.

Trover for ten bundles of pressed hay. Plea, the general issue.

Trespass quare clausum fregit. On the trial, it appeared that the defendant, by his servants, made entry upon the locus in quo, and dug up, carried away and converted to his own use a large quantity of the soil thereof, which was the trespass complained of.

Assumpsit. The declaration contained three counts., ■whieh were as follows, viz: 1.

Case for deceit in the sale of a horse. The defendant pleaded the general issue. At the trial, it was in controversy between the parties whether the sale of the horse in question was made to the plaintiff alone, or to him and one Stephen French, or to said French alone.

<p>If a declaration, containing several counts, is so drawn that each count presents a distinct and perfect cause of action, and the plaintiff discontinues on all the counts but one, he may take judgment on the remaining count.</p> <p>Because justices of the peace have jurisdiction in civil causes and in actions brought for the recovery of certain penalties and forfeitures to the amount of $13,33, the common pleas are not thereby ousted of jurisdiction in all matters below that sum.</p> <p>Our practice is to permit a party to bring his suit in the common pleas, if he so elects, but at the risk of having his costs limited to those recoverable before a justice of the peace.</p> <p>Ordinarily, if an action is brought in the common pleas, which might have been brought before a magistrate, if it clearly appears that the plaintiff had no reasonable expectation of recovering more than $13,33, costs will be limited.</p> <p>Whether the costs in a suit pending in the common pleas shall be limited or not, is a question addressed to the discretion of that court.</p> <p>Matters within the discretion of an inferior court are not subject to revision by the court above, unless transferred to the higher court for their decision.</p> <p>A writ of error will not lie to correct a decision made upon a question addressed to the discretion of the court below.</p>

Petition, for a highway, partly in the town of Alton, in the county of Belknap, and partly in New Durham, in this county.

This is an action of trespass for assault and battery and false imprisonment. The plaintiff, in his declaration, alleges that he was imprisoned and detained in prison sixteen days, to wit: from the 8th day of April, 1853, to the 23d day of the same month.

The principal questions arising in this case were decided at the last July term, and the case was then continued, upon a motion by the defendants’ counsel, for leave to file a cross bill, and to give time to the court to consider the applicatí on. And now at this term the opinion of. the court was delivered by

Assumpsit for money had and received. The writ was dated August 23,1851, and the plea was the general issue.

In Equity. The bill sets forth that on the 4th day of December, 1819, Ephraim Chamberlain, who was the husband of Mercy Chamberlain, the defendant, was seized and possessed of a certain farm in Alton, and on that day sold and conveyed the same to one Sarah Coffin.

Assumpsit, for §500, money had and received. The specification claims one-fifth part of $265, received by the defendant,. o.n.the litíüday of April, 1847, for timber taken by the defendant from th~e. Paul Eaton lot, so called, in Candia, and sold to one John Say. It appeared that Paul Eaton, the former owner of the lot,died in 1830, leaving a son, Henry, and four other children, oi-\their legal representatives.

In Equity. The bill was filed in the clerk’s office on the 18th of April, 1853, and the cause entered in this court at the July term following. At that term the defendant appeared in person, and an order was made that he should answer in ninety days. That order was not complied with ; and at the December term, 1853, a further order was made that the defendant should answer in ninety days, or the bill should be taken pro confesso.

The following facts were agreed upon by the parties. Thomas Babb, the deceased, died at Meredith, in this county, on the 22d day of October, 1851, intestate, of age, unmarried, without issue, and leaving personal estate not derived by inheritance or descent, appraised at $13,239,13. Administration was granted to John Carr, November 18th, 1851. The father of the deceased was Thomas Babb, who died in 1808, and his mother was Sarah Babb, who died March 8th, 1852.

Case, brought November 10,1851, in which the plaintiff claimed damages of the defendants, for erecting and maintaining a dam upon a certain brook, on which he had a shingle mill, and above the same, and thereby obstructing the flowing of the water of said brook to said mill, and detaining the same, and causing it to flow out of the natural channel, and across a tract of land owned by him, into the brook below said mill, and thereby depriving him of the use of said mill, and…

Trespass quare clausum. The writ was dated March 13, 1852. The locus in quo was described as “ a remnant or gore, containing sixty-nine acres, more or less, lying in the northeasterly division of Tuftonborough, and on the line dividing the same from the town of Ossipee.” The plea was the general issue, accompanied by a brief statement, setting forth that the cutting was done on No. 11 of the hundred-acre lots in Ossipee, to which the defendant had good right, claiming under…

Trespass, for breaking and entering lot number thirteen in the Masonian Patent, so called, in the town of Moultonborough, and cutting timber trees.

Assumpsit, upon an acount annexed to the writ for $250, the items being, 1853. March 15. To 200,000 spruce timber, at 75 cts____$150,00 To 10,000 ash timber, at $10,........100,00 taken from land in Ellsworth. The second count in the writ was for goods sold and delivered. The general issue was pleaded.

Debt. The declaration contained several counts. The first was for goods sold and delivered to the defendant and Thomas J. Gardner, as partners, under the style of Gardner & Woolson, the seeond, for money had and received, by the same firm. The other counts it is unnecessary .to state.

Petition for a highway in the towns of Holderness and Bridgewater, in this county, across the Pemigewassett river. The petition was referred to the road commissioners, at the May term of the court of common pleas, 1852.

Petition for a mandamus, setting forth, in substance, that on the 9th day of July, 1852, a suit was instituted against the petitioner by John C. Butler, returnable before the respondent, Robert Smith, a justice of the peace for the county of Grafton, on the 28th day of August, 1852; that the action was continued from time to time till the 9th day of October, 1852, when the cause was tried and judgment rendered in favor of the plaintiff and against the petitioner for $1,15…

Writ of entry, for a tract of land in Grafton, called the Pond lot, and is the same lot devised to the defendant by Phinehas Gage, by his will. Plea, the general issue.

This is a petition for an abatement of taxes. It is dated April 24, 1852, and asks the court of common pleas to make such order as justice may require.

Trespass, for taking and carrying away the plaintiff’s sleigh. Plea, the general issue, with a brief statement that the defendant took the sleigh as the servant or agent of Bla Rounceville. It appeared that the sleigh was formerly the property of Bla Rounceville, and that in March, 1851, it came into the possession of the plaintiff, where it remained until the defendant took and carried it away, in December, 1851.

Action of dower, to recover dower in certain lands in Colebrook, in this county, and to recover damages for the detention thereof by the tenant. The writ was dated the 9th day of October, A. D. 1851. The tenant pleaded that Jonas Mills, the late husband of the said.

Case, to recover damages for an injury alleged to have been occasioned by a defect in a highway in the defendant town, on the 27th day of September, 1850. The accident occurred near the town line between the towns of Albany and Eaton, in the county of Carroll. The plaintiff introduced evidence tending to show a town line two rods south of the place in question, and the defendant’s evidence to show a town line two rods north of it.

Assumpsit. The declaration alleged that whereas on, &c., at, &c., the defendant had, by virtue of a writ in favor of E. C. Hutchins against the plaintiff, returnable, &c., attached two horses, &c., the defendant, in consideration that the plaintiff, at his special instance and request, would safely keep said property for him, and would deliver it to him, or any other proper officer, on demand, on receiving reasonable pay for said keeping, and would give a receipt for said…