Volume 3 — New Hampshire Reports

This was an action upon the ease. The declaration alleged. that the plaintiffs and defendant, on the 1st January, 1821, were possessed of a certain saw mill, in Durham, in this county, and entitled to the use of the said mill in certain sitares respectively ; to wit, two of the plaintiffs and the defendant were each entitled to the sole use of the mill, three, one of the plaintiffs, five, and another ten days, in every twenty-four working days ; and that while the defendant…

Trespass, for breaking and entering the plaintiff's close, in Barrington, on the 5th November, 1821. The defendants pleaded in bar an entry to open and make a highway, duly laid out by the selectmen of Barrington, through the locus in quo.

Trespass, for breaking and entering the plaintiff’s close, in Durham. The close was described by metes and bounds : in the declaration.

Assumpsit upon a note of hand, dated February 1, 1820.. for $99 If), made by J. W. F. and payable to the defendant, or order, in sixty days, with grace, and by the defendant endorsed to the plaintiff.

<p>Replevin for four oxen, four steers, and one cow.</p> <p>The defendant avowed the taking, by virtue of a warrant from the selectmen of Greenland, in this county, directed to him as collector of taxes for that town in the year 1819, to collect sundry taxes assessed upon the plaintiff that, year, amounting in the whole, to $150 73.</p> <p>The cause was submitted to the decision of the court, upon the following facts,</p> <p>The plaintiff was taxed by the selectmen of Greenland, as follows .</p> <p>For state tax - - - - ‡16 74</p> <p>.county tax - - - 9 57</p> <p>school tax - - - - 30 48</p> <p>t own tax ... - .63 81</p> <p>minister tax - - 31 13</p> <p>And a warrant, under the hands and seals of the selectmen, was delivered to the defendant, requiring him to collect the said several sums so assessed upon the plaintiff ; and notice was given to the plaintiff of the said sums more than fourteen days before the defendant proceeded to take the said cattle ; but the plaintiff paid only the sum of $21.</p> <p>The selectmen of Greenland had a warrant from the state treasurer, and another from the county treasurer, to assess the state and county taxes ; huí the town tax and minister tax were voted to be raised at a meeting, in the warrant for warning which there was no article for the raising of any money for any purpose whatever.</p>

Assumpsit, for money paid, laid out, and expended by the plaintiff for the use of the defendant, and on a promise by the defendant to indemnify the plaintiff for endorsing a writ at the defendant’s request, sued out in the name of John Eastman against T. S. Thrasher, and the defendant, D. H. jr. his trustee.

This was an action of trespass for breaking and entering the plaintiff’s close in Antrim, in this county, in the year 1817, and cutting and carrying away the plaintiff’s grass. The cause was tried here at October term, 1822, upon tiie general issue. Neither party offered at the trial any evidence of title except possession ; so that the real question between them was, who first gained possession of the land. The close described in the writ was part of lot.

Tins was a writ of entry, in which the demandant counted upon his own seisin of a tract of land in Mont-Vernon, and upon a disseisin by the tenant. The cause was tried here, at April term, 1823, upon the general issue, when it was agreed by the parties, that one Thomas Balter was once seized of the demanded premises.

Debt, upon a judgment rendered by the court of common pleas, in this county, at September term, 1808. The defendant pleaded in bar, that an execution, duly issued upon the said judgment, was extended upon the land of the said defendant, and thereby satisfied. To this plea, the plaintiff replied, that at the time of the said extent, the defendant had no title nor interest in the land, upon which the said .execution was extended.

This was an action of debt, brought to recover a penalty alleged to have been incurred by the defendant, by suffering his horse to go at large upon the highway. The cause ivas tried here, at April term, 1823, upon the general issue, when it appeared in evidence, that the horse, alleged to have been at large, was the joint property of the defendant and one Ebenezer ¡Spear, and at the time under their joint control.

<p>A collector has no authority to sell the land of non-residents, tor taxes, until he has received a copy of his tax list from the deputy secretary of state.</p>

Tins was- an action of assumpsit, upon a written agreement, as follows : “ The subscribers, in behalf of the town of JVeare. here- “ by acknowledge notice to have been given us by the se- “ lectmen of the town of Hanover, in relation to the support of the family of John Kimball, for which said selectmen of a Hanover claim payment of us, and engage to take no ad-i£ vantage, and will not hold them to furnish evidence of said “ notice having been done in the form prescribed…

Assumpsit, for money had and received. The cause was tried here, at September term, 1823, upon the general issue ; when it appeared in evidence, that the defendant, on the 25th December, 1815, loaned to the plaintiffs $400, for which he received their promissory note, payable in five years, with interest. That on the 13th November, 1821, the plaintiffs paid the defendant $200 ; and on the 5th November, 1822, $886 02, and took up the note.

This was a writ of dower, in which the said Francis and Elizabeth, in her right, demanded dower in certain real estate in Dover, whereof John G. Tibbetts, late the husband of the said Elizabeth, was seized during the coverture.

Debt, upon a judgment rendered by the justices of the circuit court of common pleas, holden at Ipswich, in the county of Essex, in the commonwealth of Massachusetts, on the first Monday of March, 1821.

This was a writ of entry ,,½ which the demandant counted upon his own seisin of land in Wolfborough, in this county. The cause was submitted to the decision of the court, upon the following case.

<p>Trover, for sundry articles.</p> <p>The cause was tried here, at September term, 1823, upon the general issue ; when it appeared in evidence, that the articles were once the property of the plaintiff, and that they were in the hands of the defendant, who, when requested, refused to deliver them to the plaintiff.</p> <p>The defendant relied upon a sale of the articles to him by the plaintiff, and produced a paper, purporting to be signed by the plaintiff, and acknowledging the receipt of payment, for the articles. The defendant, then produced another paper, purporting to be signed by the plaintiff, and proved the signature to be genuine. The court permitted the paper, thus proved to he genuine, to be submitted to the jury, and instructed them that they might compare the signatures, and if satisfied from the comparison, that the receipt was genuine, they must return a verdict, for the defendant.</p> <p>The jury having returned a verdict, for the defendant, the piaintiif moved for a new trial, on the ground, that the jury had been misdirected.</p>

Trespass, for breaking and entering the plaintiff’s close, in Brookline, in this county.

Case, for an injury done to the plaintiff’s horse, by falling through a defective bridge, in Deering.

This was an action of assumpsit upon a note of hand, dated July 15, 1815, for $525, made by Read, and payable to Amasa Scott, the plaintiff’s intestate, on demand, with interest. The cause ivas tried here, at October term, 1823, upon the general issue ; when it appeared in evidence, that the intestate, just before his death, gavé up the note mentioned in the declaration, to the defendant, to be cancelled.

Assumpsit, upon ail order for ⅞71,17, drawn by tlie selectmen of Marlborough, upon the treasurer of Hie town, and dated Sept. 1C, j 822. There ivas also a count for money paid, and for money had and received.

<p>Assumpsit, upon a note ofliond, dated September 18, 1810. for $515, payable on demand, by the said II Rice, to the late Francis Dana, of whose estate the plaintiff is administrator.</p> <p>The defendant pleaded in bar, that be never promised within six years next before the commencement of the action/</p> <p>To lilis plea the plaintiff' replied, that the said Francis Dana had cause of action at the time of his decease ; that the plaintiff took upon himself the administration of the said estate, on the thirtieth day of July, 1822 ; and that this action was commenced within two years after that time, to wit, on 20th August. 1822.</p> <p>To this replication there was a general demurrer.</p>

<p>This was an appeal from the judgment of a justice of the peace, rendered in favor of Wood against Fletcher.</p> <p>The cause was submitted to the decision of the court, upon the following facts.</p> <p>Wood was the clerk of a militia company, in which John Adams Fletcher, a son of .Peter Fletcher, and an infant under twenty years of age, was liable to do duty. John A. Fletcher was enrolled in the company, by the name of John Fletcher ¾ the notice to appear at the training was directed to John Fletcher ; John A. Fletcher appeared at the training, and answered to the name of Jolm Fletcher, but was not equipped as the law requires.</p> <p>Wood, in due season, made out and subscribed an information against the said Peter Fletcher, for his said son’s not being duly equipped, and filed the same with a justice of the peace, in pursuance of the provisions of the statute of 1820, cap. 36, sec. 50. The justice, before whom the information was tiled, made out and issued a summons, requiring the said Peter Fletcher to appear and answer to the said information ; and having heard the parties, rendered judgment against the said Peter, who claimed an appeal from the judgment. ‘</p> <p>And it was agreed, that if the court should be of opinion, that the justice had no authority to try the ease, the process being made by, and returnable to, himself; then judgment should be rendered for the defendant. But if the court should be of opinion, that the justice had authority to try the cause, and that John A. Fletcher was duly enrolled and warned to appear, judgment to be rendered in favor of Wood.</p>

This , was a scire facias against Story, as endorser of an original writ, in a suit, commenced by one James Steele, an inhabitant of the state of Nevv-York, against the said James Shep-ley. The cause was submitted to the decision of the court, upon the following facts. James Steele commenced an action against Shepley, founded on a promissory note, payable to one Phinehas Dunsmore, or order, and by him endorsed ; and Story endorsed the original writ.

This was an action of assumpsit. The declaration alleged, that the defendants in consideration, that the plaintiff would deliver to them two oxen, to be driven to márket and solil, promised to account and páy over to the plaintiff the proceeds of the sale.

This was a writ of certiorari, issued on the motion of the respondents, commanding two justices of the peace for this county to certify their… Held: and forcibly detained, from the said Willard, and still unlawfully, “ violen* ly, and forcibly, hold and detain from the said WiL u lard, contrary to the form of the statute in such case made u and provided, and against the peace.” The respondents appeared before the justices, and said they were not guilty, and the cause was…

The trustee, in his disclosure, stated, the said Benjamin Baxter, more than twenty years since, delivered to his wife certain personal property for her use and support, and deserted her ; the property, thus delivered to her, she put into the hands of Abraham Brown, her father, who died in the year 1808. JVctthaniel Brown, the trustee, was made executor of Abraham’s will, and as such, received said personal property, to the value of about $200.

Trespass, for taking and carrying away a heifer of the ■plaintiff, on the 18th March, 1823. The cause was submitted to the decision of the court, upon the following facts. Enos Ferrin was duly appointed and sworn a collector of taxes, for the town of Hebron, for the year 18.22, and had a warrant from the selectmen, in due form, to collect, among others, certain taxes legally assessed upon the plaintiff.

Trovf.r, for a horse. The cause was tried here, at No-*-vember term, 1823, upon the general issue. The only question made at the trial, was, whether the horse was legally attached by the defendant, on the 28th December, 1822 ; the defendant being then a deputy sheriff.

<p>Assumpsit, for the support of L. C., a pauper, alleged to have a settlement in Bristol.</p> <p>The cause was tried here, at November term, 1823, upon the general issue. The only question raised by the parties, was, whether the pauper was settled in Bristol. It appeared in evidence, that the town of Bristol was incorporated in June, 1819, and included a part of the territory which had before been New-Chester. The pauper became chargeable to New-Chester before Bristol was incorporated ; and, until the time of becoming chargeable, had always resided within what is now New-Chester. At the time Bristol was incorporated, the pauper was maintained by New-Chester, in the family of a Mr. Fuller, who resided in that part of New-Chester which was included within the bounds of Bristol.</p> <p>A verdict was taken by consent, for the plaintiffs, subject to the opinion of the court upon the foregoing case.</p>

Tins ivas a scire facias, in which it was alleged, that the plaintiffs, at the May term of this court, in this county, 1822, recovered judgment against Edward Evans, of Enfield, in this county, for the sum of ⅜80 21, costs of suit ; and whereas the defendant “ did endorse his surname on the back of the “ original writ in the suit, aforesaid,: as attorney to the said u Edward Evans, and thereby became liable to pay the said u Farnum and another, the costs arising in said…

Tins was an action of assumpsit, and was submitted to the decision of the court, upon the following facts.

Rkplevin, for several cows. The defendant avowed the taking as a deputy sheriff, from the possession of the plaintiff, by virtue of a writ of attachment, in favor of one Mel Stone, against one Lemuel Pulsifer, Upon opening the case, as the validity of the writ, under which the cows were taken, was admitted, the court directed a nonsuit to be entered, subject to the opinion of the court, upon the question, whether replevin lies in any case, where property is taken by valid…

for two was for two another count for Assumpsit. One count was upon an account ploughs, of the,value of $24. Another count ploughs, sold and delivered. There was money. had and received.

Assumpsit, for the support of a pauper, alleged to have a settlement in the town of Canterbury. The cause was tried here, at February term, 1823, upon the general issue, and a verdict returned for the plaintiffs, subject to the opinion of the court upon the following facts.

<p>Assumpsit. The plaintiff alleged, in his declaration, that the defendant gave to 0. Govt a promise in writing, as follows : “ For value received, I promise to pay 0. Gove or his <{ order, ⅝30 worth of neat stock, within six months. May & 20, 1822;” that Gove, for a valuable consideration, ordered the contents tobe paid to the plaintiff ; and, before the day of payment, notice of the transfer was given to the defendant, who promised to deliver the stock to the plaintiff at the time specified in the original contract.</p> <p>The cause was tried here at February term, 1824, upon the general issue ; Avilen it was admitted, that the defendant, for a valuable consideration, made the promise to Gove, as alleged ; and it appeared, that the interest in the said promise had been assigned, for a valuable consideration, by Gore, to the plaintiff, and that before the day of payment, Gove and the plaintiff informed the defendant of the said assignment, and shewed him the same on the hack of the original contract; and that the defendant thereupon promised the plaintiff to pay the same stock to the plaintiff, according to the tenor of said note.</p> <p>A vp,relict, was taken for the plaintiff, subject to the opinion ®f the court upon the foregoing case.</p>

<p>Tins was an action of assumpsit, for the support of a pauper, alleged to be settled in the town of Gilmanton.</p> <p>The cause was tried here upon the general issue, at September term, 1823 ; and the only matter in dispute, between the parties, was, whether the pauper was settled in Gilman-ton. It appeared, in evidence, that, in 1792, the pauper, being then of the age of fourteen years, was, by indentures, made between the overseers of the pour of the town of Portsmouth and Joseph Badger of Gilmanton, placed as apprentice with said Badger, to learn the art of husbandry ; and that he continued to reside with the said Badger, in Gilmanton, from the year 1792 until 1799, under said indentures, without being warned to depart from said Gilmanton.</p> <p>A verdict was taken, by consent, for the plaintiffs, subject to the opinion of the court, whether the residence of the pauper in Gilmanton, under the circumstances, gave him a settlement there.</p>

This was au action of trespass quart clausum fregit, and was tried here, at February term, 1824, upon the general issue. It was admitted, upon the trial, that one William Spinney was once seized of the locus in quo. Paul Giles, having obtained an execution against said Spinney, caused it, in the year 1805, to be extended upon the locus in quo ; and, in the year 1810, conveyed the same to the plaintiff.

This was an action of the case for maintaining and continuing a dam across the Pemigewasset brook, from July 8, 1821, to August 6, 1822, whereby the plaintiff’s land was covered with water, and injured. The cause was tried here at September term, 1823, upon the general issue ; when it appeared in e\ idence, that the defendant, in 1818, erected a dam across the Pemigewasset brook, which caused the water to overflow the plaintiff’s land, and injure his grass and trees.

Debt, upon a bond in the penal sum of $84 64, with a condition, that Joseph Tarlton should continue a true prisoner in the gaol in Portsmouth.

Assumpsit, against the defendant, as surviving partner of Charles K. White, deceased. The defendant pleaded in abatement, as follows : — ■ £‘ And the said II.

<p>This was an action on the case, in the nature of waste. The declaration alleged, that the plaintiffs and the defendant were seized of a tract of land in Chester, in this county, as tenants in common ; and that, being so seized, the defendant, on the 1st November, 1820, &c., “ wrongfully, and unjustly, and without the consent or license, and against the “ will of the plaintiffs, cut down, felled, and prostrated, &c., “ seventy trees, owned by the plaintiffs and defendant in com-st mon, as aforesaid, &c.; each of said trees being of the “ value of eight dollars, which same trees were standing and “ growing upon said land, and which same trees the defend- £! ant, at the several times aforesaid, took and carried away, and entirely destroyed, whereby the plaintiffs have been “ and are greatly injured, &c., in their estate and iaherit-anee in said bind.” The action was entered here, at bt p-tember term, 1821, and continued to February term, 1822 ; when the defendant pleaded, that since the commencement of the action, to wit, on the 14lh February, 1822, Im Moore, one of the plaintiffs, by deed, &c., in court, &c., did agree with said Wilson, that for and in consideration of the sum of fifty dollars, paid, &c., he did thereby discharge and release all actions of trespass, or trespass on the case, or any and all actions commenced by the plaintiffs in the superior court of judicature, against said Wilson ; wherefore, the defendant prayed judgment, if the plaintiffs their action, against him, ought to have and maintain.</p> <p>To this plea the plaintiffs demurred, and assigned for causes, that the matter of the plea ought to have been pleaded puis darrein continuance ; also, that it ought to have been pleaded in bar of the further maintenance of the suit, and not in bar generally.</p> <p>contended, that as the release was given after the action had been continued, it should have been pleaded as given puis darrein continuance. They also insisted, that the release ought to have been pleaded in bar of the further maintenance of the suit, and not in bar generally. 1 C hitiy’s PI. 531, 634.</p> <p>It was further urged, that the release of one of the plaintiffs was no bar to the action.</p> <p>contended,</p> <p>I. T lat a release, by one tenant in common, is a bar to an action by him and his co-tenants, (6 Co. Rep. 25, Ruddock's case, — Shep's Touch,. 335.-5 Bac. Jib. 699⅝ 702, 703. — 8 John. Rep. 68, Pierson vs. Hooker. — 13 ditto 286, Austin vs. Hall,) because they must join. Lili. s. 315. --Co. Lilt. 198.— 3 Bac. Jib. 70G. — 1 Mass Rep. 131, Daniels vs. Daniels.</p> <p>IÍ. A release, pending the action, may be pleaded generally in bar of the action. Fort. Rep. 338, Price vs. Kenrick, cited with approbation 5 Bac. Ah. 479, & 1 Com Dig. Abat. I, 24, p. 98. — Rast. Ent. 503. — 13 John. 286, Austin rs. Hall. —7 Mass. Rep. 76, Everenden vs. Beaumont.- — 4 East 502, Lebretvs. PapiUon. — System of Pleading 406, cites 15 E. IP‘~* 4 Ero. lit. Coni. 31. Analogous to this, are the cases of pleas of outlawry, since the action brought ; 1 Salk. 178, Moor vs. Green. — 5 Mod 11, S. C. approved by Comynsr Dig. Mai. / 24, p. 98. Judgment recovered against an administrator ; 4 East 502, Lebretvs. PapiUon, where it is spoken of as the usual course. Doug. 110, Sullivan vs. Montague, Mg. Payment, 3 John. Rep. 229, Tillotson vs. Preston-Award, Comyn's Rep. 328, Thomlinson vs. Arris kin. Removal from office of an administrator, 5 Mass. Rep. 275, Jewett vs. Jewett. Distribution under the insolvent act, 15 Mass. Rep. 325, Andrews vs. Gullison. — Chitiy, 1 Plead. 531, lays down the rule that actio non “ always alludes to the commencement “ of the action, and not to the time of the plea.” The authorities he refers toare 3D. & E. 18G, Evans vs. Prosser, & 5 East 502, Lebret vs. PapiUon. The former was the case of a plea of offset, as to which the rule unquestionably holds. But the court, in deciding that case, do not pretend that the rule extends to any other case ; and the authorities cited distinctly shew that there can be no such general rule. The case of Lebret vs. PapiUon is founded wholly on the case of Evans vs. Prosser, misunderstood, and distinctly misapplied. The class of cases, in which facts, occurring pendente lile, are considered admissible in evidence under the general issue, evidently prove that such facts, if pleaded, may be pleaded generally in bar. Such are the cases of accord and satisfaction strongly implied in 7 John. Rep. 194, Jackson vs. Rich,— ¡¿awes' Pleading in assumpsit 666, per Ld. Kenyon. — 2 Esp. Rep, 504, Story vs. Bloxham ; Of payment, 2 Esp. 504, per Ld. Kenyon; Of foreign attachment, 1 Salk. 291, Savage's ease ; Satisfaction, 3 Burr. 1345, Bird vs. Randall.* — 7 Mass. Rep. 334, Baylies vs. Fettyplace. — 10 ditto 131, Poor vs. Robinson; Recovery and release, per Ld. Mansfield, in Bird vs, Randall, ubi supra ; Certificate of seizure, under a revenue act, Dovg. 106, Sullivan vs. Mountagu.</p> <p>III. A plea of release, pending an action, may be joined with the general issue. 1 Tidd 610 —1 Ch. PI. 542. — Com. Dig Plead. G. 2 — 13 John. Rep. 286, Austin vs Hall — Com. Rep. 328, Thomlinson vs. Arriskin, — 7 Mass. Rep. 76, Ever-miden vs. Beaumont, and the analogous cases of Tillotson vs. Preston, and Lebrel vs. Papillon, ubi supra. — 3 Went. PL 137. —3 Ins. Clcr. 2G9.</p> <p>IY. The second plea in this case is not a plea puis darrein continuance, because such plea can only be entered after a fornjer plea has been pleaded ; it cannot be a waiver of the general issue, because this being pleaded at the same time with the release, is not, in the sense of the books, a former plea. 7 John. Rep. 194, Jackson vs. Rich —l Ch. PL 634.— 5 Bac. M. .4-77, 478, 479. — 3 John. Rep. 229, Tillotson vs. Preston. — Lawes’ PI. in Jlssumpsit, 666, 716. — 1 Coin, Dig. Mat, I 24.-2 Tidd 774.-3 Bla. Com. 316.</p> <p>V. it is never necessary to plead in bar of the further maintenance of an action, except in pleas since the last continuance. The idea was never suggested in any authority, nor in any elementary writer, until the case of Lebrel vs Pa-pillon. In that ease, no such question arose, the only question being, whether to a plea of alien enemy, (a war having commenced since the commencement of the suit,) it was sufficient to reply that the plaintiff was an alien esmie at the time of commencement of the action. The want of further was at most merely form, which was waived by the pleading over. The only authority cited was an end.il in Lutuiche 1143, Campion vs, Baker ; and the precedents referred to in RasleWs Entries, Jlppels enmort 4, Deten release 7, are both pleas puis darrein continuance. Com. Dig. Mat. I 24, cited as, an authority, is contrary most explicitly. Chitty, in stating the doctrine, says, “ but as mistake in these cases will not vitiate” (1 Plead. 539) “ a rule, the disregard of which is of so little consequence, does not deserve the name.”</p> <p>VI. The court are ex officio bound to give such judgment on the whole record, as ought to be given without regard to any imperfection in the prayer of judgment. 4 East 502, Lcbret vs. Papillon, and the cases there cited. — Plow. 66, 69, Dive vs. Manningham.-8 Co. 93, Fronds’ case.— Winch 75, West lie vs. King..- — 1 D. & E, 125, Kirk vs. Now-ell, — 2 Stra. 1055, Street vs, Hopkinson. — Rep, T Hard. 345, S. C. and also 2 Bos. & Pul. 420, Powell vs. Fullerton. — & Sand. 210. d. n. 1,</p> <p>The case of Austin vs. Hall, (13 John, 286) qvatucr pcdibas currit with this case., and is an authority emphatically in point for the plaintiff. Like this case, it was an action by co-heirs for a trespass to their land ; a release obtained from one coheir; pendente lite, was pleaded generally in bar of the action, and joined with a plea of not guilty ; and judgment was 'given for the defendant.</p>

This was an action on the caso. The plaintiff alleged in his declaration, that, a certain farm in Chester, being in the possession and occupation of Couch, as tenant thereof to the said Brown, and the reversion thereof being in the said Brown, the said Dinsmoor maintained a dam across a certain brook, by which said farm was overflown, from the 22d August, 1817, to 22d August, 1S23, and the trees of the plaintiff killed, and part of the farm made spongy and rotten ; and that…

This was a writ of error, brought to reverse a judgment of this court, rendered here at April term, 1822, in favor of Smith against Jones, for $262,29 damage, and $14,34 costs of suit. H appeared by the record, that the original writ was tested the 14th August, 1820, and the sheriff’s return upon it was as follows :— *• Hillsborough, August. 19, 1820.

Assumpsit, upon two promissory notes, dated September 7, 1821, for $100 each, one made by Winslow .//mes and the defendant, and the other by Winslow Ames, Jonas Wright, and the defendant.

Assumpsit, upon a promissory note, for $385,68, dated September 24, 1819, made by the defendants, and payable to the plaintiff.

<p>This was an action of assumpsit upon a promissory note, made by the defendant, for $600, dated April 1, 1822, payable to one James Powers in one year, and by him endorsed to the plaintiff.</p> <p>The defendant filed a plea, in which he alleged, that, in pursuance of a corrupt agreement between him and the payee, more than lawful interest had been reserved in and by the note ; and he prayed a deduction of three times the amount of the sum thus unlawfully reserved, from the suin, that might be found lawfully due. and offered to verify his plea by his own oath, in pursuance of the statute.</p> <p>To this plea the plaintiff demurred ; and the defendant joined in demurrer.</p>

<p>Assumpsit. The defendant craved oyer of the plaintifl’s letters of administration, by which it appeared, that he was not administrator at the time when he commenced this suit, and then demurred, and the plaintiff joined in demurrer.</p>

Assumpsit. The declaration contained several counts. The defendant pleaded in bar, that the several supposed causes of action, in the declaration mentioned, nor any of them, did not accrue to the plaintiff within six years before ihe commencement of the action.

This was an appeal from the judgment, of a justice of the peace, in this county, and was submitted to the decision of the court, upon the following facts. Shatluck is the clerk of the first company of infantry in.

This was a writ of dower. The tenant pleaded in bar. that the said Hannah has not, nor has any person, by, ££ through, or under whom the said Hannah has or makes “ claim to the recovery thereof, been seized or possessed of £ C the land described in the said Hannah’s writ, or of any p.ar- “ ceJ thereof, within twenty years next before the commence- “ ment of this suit.” To this plea the demandant demurred, and the tenant joined in demurrer.

Tins was an action of debt upon a probate bond, given by the defendant upon his taking upon himself the burthen of ex-ecutin'; the will of Moses Chamberlain, deceased. The de- •• . femlant was defaulted, and upon a hearing of the parties as to the sum, for which execution ought to be awarded, it appeared, that the said Moses, the testator, by his will, gave to his daughter Rhoda ⅜100, to be paid to her in one year after the decease of her mother.

Debt, upon a bond. The plaintiffs were described in the writ as follows : “ Jeremiah.

Assumpsit, upon a note of hand for £56,78, dated November 10, 1821, made by Lewis R. Morse, and payable to the defendant or bearer in six months with interest, and by the defendant endorsed. The cause was tried here, at. November term, 1823, upon the general issue. No evidence was produced by the plaintiffs to shew, that, payment bad been duly demanded of the maker of the note, nor to shew, that due notice of the nonpayment of the note had been given to the defendant.

R. M. made her complaint in writing upon oath to a justice of the peace, alleging that she was pregnant with a child, which, if born alive, might be a bastard, and become chargeable to the town of C., and that the said J. M., on or about the 10th January, 1822, had carnal knowledge, &c. at or about which time the said child was begotten by said J. M. A warrant was issued by the justice, and M. having been arrested, gave bond for his appearing, and answering the said…

Trover for two horses. The cause was submitted to the decision of the court, upon the following facts : One Ji.

Debt upon a probate bond. The defendants were defaulted ; and the question was, for what sum execution should be awarded ; and this question depended upon the construction to be given to certain clauses in the will of Jonathan Hardy, deceased. Those clauses were as follow : “ Firstly.

Assumpsit for $25, money had and received. The cause was tried here, upon the general isue, at January term, 182-1 ; when it appeared in evidence, that the plaintiff' and one Imariak Pierce, made a bet, that Pierce could not break from the gaol in Hopkinton in this county, in a certain time. Pierce was not then a prisoner, but had been confined before in the goal.

Assumpsit. The defendant pleaded the general issue, and filed, by way of set-off, an account, one item of which was a charge of 1109 yards of cloth, and another item a charge of 187 yards of cloth. The cause was tried here at February term, 1824.

This was a writ of entry, in which the demandant counted upon his own seisin of a tract of land in Rochester, and upon a disseisin by the tenant. The cause was tried here at February term, 1834, npoa the general issue, when it was admitted, that one Enoch Ela, being seized of the demanded premises, on the loth July, 1 o 15, conveyed the same to the demandant, in fee and ia mortgage, to secure the payment of six several promissory notes.

<p>This was an action of trespass qnare clausum fregit, and was tried here at September term, 1824, upon the general issue.</p> <p>The plaintiff offered in evidence to the jury a deed made by Susanna Pinkham, on the 22d February, 1822, and purporting to convey to the plaintiff the locus in quo, being her dower in the estate of her late husband, Richard Pinkham, deceased. He also offered in evidence a copy of a warrant from the judge of probate in this county, dated April 24, 1821, to certain freeholders, to assign to the said Susanna her dower in the estate of her said late husband, a return of the said warrant by the said freeholders, assigning the locus in quo to the said Susanna, as her dower, and a decree of the said judge of probate, made October 9, 1821, accepting and allowing the said return.</p> <p>The defendant shewed in evidence a deed made by Richard Pinkham, on 1st May, 1818, by which he conveyed to the defendant, in fee and in mortgage, the land, in which the said Susanna had her dower assigned as aforesaid.</p> <p>The plaintiff then introduced, evidence tending to prove, that the defendant agreed, that the said Susanna should have her dower in said estate assigned by a committee appointed by the judge of probate. And the court instructed the jury, that if they were satisfied, that the defendant verbálly agreed, that the said Susanna should take her dower in said estate by the assignment of a committee, to be nominated by the judge of probate, he was bound by the assignment, whether he knew that the judge of probate had no jurisdiction in the case or not. But if the said assignment was not made in pursuance of such an agreement on the defendant’s part, it was void, and the defendant entitled to a verdict.</p> <p>The jury having returned a verdict for the plaintiff, the defendant moved the court to grant a new trial.</p> <p>argued—</p> <p>1. That the assignment of dower by the court of probate through a committee, &c, was in this case altogether without authority and void 9 JHass.BlO, 12, Shmfe. vs. O’Neil.— 1 Greenleaf 46, Fosdick, vs. Gooding. — Stearns on real actions, 299.</p> <p>2. That proceedings by, or before a court, which had no authority over the subject matter, could not be ratified by a prior assent of a party to such proceedings.</p> <p>They were coram non judice. Com. Di. u Confirmation” D. 1 . — Dyer 2396.-8 East 118. — 7 ditto 80. — 9 Mass. M. 331.</p> <p>3. That here was no assignment contemplated by either party, except one by the court of probate ; and hence that the jury were misdirected in being told, that a prior assent to a committee by that court bound the defendant.</p> <p>4. That if the parties had contemplated a parol assignment, which was not pretended, such an assignment is here invalid under the statute of frauds; and at common w was never valid unless by the husband before marriage or his heirs, and not his grantees, after death. See cases cited 2 N. IL Rep. Perley vs. Johnson. — 9 John. 61, Stuywesant vs. Tompkins.</p> <p>5. And if not invalid, that such an assignment is not completed till the dower be carved out and offered to the widow by the tenant, which was not done here, and before the committee had reported, the tenant expressed a dissatisfaction with their doings.</p> <p>It must be tendered, as if on demand ; (See forms of pleading an assignment, Stearns on Real actions, Jiff. Mk 83, 84) must be “ admeasured” by tenant or by his direction ; (20 John. 412, Jackson vs. Jlspell,) most be “set off” by him. Stearns supra.</p> <p>6. The widow is a trespasser till dower is duly assigned, if she eater into possession. 3 Reeves Hist, of Eng. Law 333. — Litt. Sec. 45. — 14 Mass, Rep. 378. — 17 John. 167, —'7 ditto Ml.~ 9 Mass. Rep. 14.</p> <p>7. If tenant had selected the committed, not as under the court of probate, but as private agents to act for him, he could not object to their doings before the dower was offered or tendered, and the assignment thus completed, Paley on Jtgents, 158. — 2 Camp. Cases 839, Hyman ss. Neale. — 3 ditto 127.</p> <p>8. To say that here was a private contract, that certain persons, in a private capacity, should assign this dower for the tenant, is not the truth or the finding of the jury ; and if it was, it was only an executory contract, and could be objected to before the assignment was completed.</p> <p>The questions which arise in this case are — -</p> <p>1. Was there a parol assignment of dower from Gear to Susanna Pinkham ?</p> <p>2. Is a parol assignment valid under our statute ?</p> <p>Under the first question we contend, that the doings of the committee, who made this assignment, were the acts of the parties themselves ; that the maxim, “ qui faat per alinm faeit per se,” applies in its fullest extent. This committee were appointed and agreed upon by the parties for the express purpose of making this assignment, and as such were the agents of both parties</p> <p>The view, which the counsel for the defendant tobes, in relation to the facts, in one parti, ular is incorrect, viz. that there was no assent, on the part of the defendant, to the particular individuals who constituted the committee, but merely au assent to the appointment of a committee by a third person.</p> <p>Now if this is at all natural, it will be seen by the statement, that such are not tae facts. The defendant did assent t° the particular men at the time they came to make the assignment. -5</p> <p>The objection made also by the defendant’s counsel, that there was no assent by the defendant to the doings oT said committee after they were completed, is answered, if any answer is necessary, by the facts, that the defendant did af-terwards make an attachment and levy upon premises assign* ed to her as her property, and received of the present plaintiff the money necessary to redeem it.</p> <p>Although,as is suggested, the evidence of these facts was ruled out on the trial, yet this.ruling of the court is made a past of the case, and they have now a right to consider them, if they believe they have any bearing on this point.</p> <p>The second question, whether a parol assignment is valid under our statute, has not been directly decided by this court. They have, however, decided that a parol assignment is valid at common law. JV’. II. Hep. 48.</p> <p>It then remains to be considered, what is the effect of our statute, denominated the statute of frauds ?</p> <p>The words of the statute are, “ no lease, estate, or inter-u est, either of freehold, &c. or any uncertain interest of, “ in, or out of any messuage, &c. shall be assigned, grant- “ ed, &c. unless by deed or note in writing, &c., or by act “ or operation of law.”</p> <p>It is necessary, then, to decide, that an estate or interest passes by the assignment of dower from the heir or tertenant to the widow, in order to bring this case within the statu!e.</p> <p>Coke says, that this estate u exists of common right, “ the heir or tertenant is the mere minister of the !aw to carve “ it out to her.” Toen of course no interest passes from the heir to the widow ; her interest is created or given to her by the law ; and the heir or tertenant acts in the same capacity, in marking it out to her, as does the officer or admeasurer under him, in making an assignment by judgment of court. The heir may act as this minister or agent if he please ; if not, the law has provided other ministers with the same power. It could hardly be said that there is an interest passes, in a legal sense, firm the heir to the widow, by his granting her a right, which if refused, she can recover by judgment of law.</p> <p>- tint, in nase it becomes necessary, the plaintiff will contend, that the assignment was sufficient as a proceeding of th:é judge of probate.</p> <p>It never lias been dfebidéd, that a judge of probate has not authority to assign dower agaiw-t a mortsneer with notice to him ; ami moré particularly with Isis consent, which is the present case.</p> <p>In Mass. Rep. it is stated by the court, that the jurisdic* tiou of a judge of probate in assigning dower is one, where it affords its aid and sanction with the implied consent of the parties concerned In this case there is an express consent. The heir lias as great an interest’ as the mortgagee ; and no reason can be give i, why an assignment against the mortgagee, with notice and vs iih His consent, should not be as valid, as against the heir without either. In support of this position, I would cite Judge White's treatise on the probate law of Massachusetts, a work of high reputation, page 99.</p>

This was an action on the case for a misapplication of the money assessed by the defendants, Selectmen of Jllton, for for the purpose of keeping schools in said town.

This was a writ of entry, in which the demandant counted «pon his own seisin of a tract of land, in Windham, in this county, and upon a disseisin by the tenant. The case was tried here, upon the general issue, at September term, 18.24, when it appeared in evidence, that one Robert Clarke, being seized of the demanded premises, on July 31, 1811, conveyed the same, by deed, to I).

This was a writ of entry, in which the demandant counted upon his own seisin of a farm in Deerfield, and upon a dis-seisin by the tenant. The cause was tried here upon the general issue, at February term, 1824. It was admitted, that the demandant ivas once seized of the demanded premises.

Replevin for three cows and one heifer. The declaration alleged that the defendant, on the 28th July, 1823, at L. in said county, in a certain close adjoining the defendants dwelling house in L. took the cattle- &c. and unjustly detained them against sureties and pledges, &c. The defendant avowed the taking and impounding the cattle, as a distress for damage done by the same cattle, in the said close, which he alleged to be his soil and freehold.

Assumpsit upon a promissory note, dated March 16, 1820. for $113 24, payable to J. Gibson, or order, on demand with interest.

This was an action of trespass upon the case for erecting a dam across the Souhegan river, in New-Ipswich, and causing the water to flow back and obstruct the water wheel of the plaintiffs.

Case for slander. The first count alleged, that the defendant, in presence of divers good people of this state, did loudly and publicly utter the following false and scandalous words of and concerning the plaintiff, viz. “ that she (rnean- “ ing the plaintiff,) was a damned whore.” - The second count alleged, that the defendant in a certain discourse, which he had with divers good people of this state, of and concerning the plaintiff, charged the plaintiff with having…

This was a writ of error brought to reverse a judgment, rendered by a justice of the peace, in this county, in favor of the defendant against the plaintiff in error, under the following circumstances. On the 17th December, 1822, Hartshorn sued out a writ against Hayward, returnable before the justice on the 4th January, 1823, which was served on the same day ; and the officer made his return, as follows : “ Hillsborough, ss. December 17, A. D. 1822.

This was an action of assumpsit. The declaration contained two counts.

This was an action of assumpsit for the support of certain paupers, alleged to have their legal settlement in New-Boston. The cause was submitted to the decision of the court upon the following facts. Toe paupers are the wife and children of Ebenezer Wilson, who formerly resided, and had his settlement, in New- Boston. In the year 1809, Wilson removed, with his family, to Weare; where he and his family have ever since resided.

This was a writ of entry, in which the demandant counted upon his own seisin of a tract of land in Swanzey, and upon a disseisin by the tenant.

Thís was an action of trespass, for taking and carrying away the plaintiff’s hay, rye, and oats, on the 2d December, 1822. Held: that goods could not be distrained, which, in consequence of the distress, could not be returned in the same plight, in which they were C ’mn, as sheaves of corn, or hay in a cock or barn. Such seems to have been the doctrine as late as 1 Mass. Rep, 129, Evnd vs Ward.

Assumpsit on a note dated January 26, 1820, for ⅝130, payable in six months with interest, and made by Huggins as principal, and Read as surety. Huggins was defaulted.

<p>Assumpsit upon an account, annexed to the writ, of goods sold and delivered by the plaintiff’s intestate to the defendant.</p> <p>The defendant pleaded in abatement of the plaintiff’s writ, that the promise in the declaration mentioned, if any such were made, was made by him jointly with several other persons, and not by him alone.</p> <p>To this plea the plaintiff replied, that the promise was made by the said Morse alone, as alleged in the declaration ; and upon this issue was joined.</p> <p>The cause was tried here, at November term, 1824. The plaintiff, among other evidence, produced a book of accounts, and, being sworn to make true answers, stated, that the book came to him as administrator, and that the charges in it against the defendant, which were the same as the charges mentioned in the declaration, were in the hand writing of Isaac Dodge, his intestate. Whereupon, the book was permitted to go to the jury, as evidence in the cause.</p> <p>The court instructed the jury, that in case they found the issue, submitted to them, in favor of the plaintiff, they might consider the piea as an admission, that (he articles were delivered, and that they must inquire of the value of the goods charged, and give that value in damages to the plaintiff.</p> <p>The jury having returned a verdict in favor of the plaintiff, the defendant’s counsel moved the court to grant a new trial, on the ground, that improper evidence had been submitted to the jury, and that the jury had been misdirected.</p>

This was a w iit of entry, in which the demandant counted upon his own seisin of land in Pembroke, in this county, and upon a disseisin by the tenant ; and was submitted… Held: that the land does not pass on the execution of the conveyance by the parties, until enrolment. And after enrolment, provided it take place within six months next after the date or delivery ot the deed, the bargainee is considered as seised from the execution, only by relation. 4 Mass. Rep. 543.—Com.

<p>This was an action of trespass for breaking and entering the plaintiffs close, alleged to be situated in Northiield, in this county., ........</p> <p>The cause was tried here at August term, 1824, upon the general issue ; when it appeared, that the locus in quo was situated within what were considered the limits of the original township of Canterbury, of which Northiield is pari, from 1730, when the line of Canterbury was run by the proprietors, until .1791, when a dispute arose between Northiield and Gilmanton. That dispute continued until 1821, when, on an application to the court of sessions in the county of Strafford, the line was so settled by that court, as to leave the focus in quo in the town of Gilmanton, in the county of Strafford. Whereupon the court being of opinion, that, while the proceedings of the sessions remained in force, the locus in quo must be considered as in the county of Strafford ; and that the action, being in its nature local, could be maintained only in that county, directed a non-suit, subject to the opinion of the court upon the case, of which it was agreed that the record of the doings of the court of sessions should be considered as a part.</p> <p>By that record it appeared, that the selectmen of Gilman-ton, on the 7th August, 1821, presented to the court of sessions, in the county of Strafford, a petition, stating, that the selectmen of Gilmanton, and the selectmen of Northfield had not been able to agree as to the true line and boundaries between those two towns, and praying that court to examine the disputed line, and establish the same. Upon this petition it was ordered, that the selectmen of Gilmanton notify the selectmen of Northfield, to shew cause at the next January term, why the prayer of the petition should not be granted. On the 26th November, 1821, a notice was served upon the selectmen of Northfield, agreeably to the order. At January term, 1822, the town of Northfield did not appear, and John Wheeler and John M. Page, two of the justices of the sessions, and John Folsom, were appointed a committee to examine and establish the said disputed line. At August term, 1822, the committee reported as follows :—</p> <p>“ In pursuance of the within warrant, we the subscribers, “ have notified, &e. and after hearing, &c. do report the “ following described line to be the true line between the “ within named towns of Gilmanton and Northfield, viz. : “ Beginning, &c. By this we establish the line as perambu- “ lated, and returned by the selectmen of Gilmanton, in the “ year 1791.”</p> <p>It also appeared by the record aforesaid, that at the time when the said report was accepted, there were only three of the justices of the sessions present, one of whom was an inhabitant of the town of Gilmanton.</p>

Indebitatus assumpsit for money paid, laid out, and expended. The defendant pleaded the general issue, and the statute of limitations. The cause was tried here at January term, 1825 ; when it appeared, that in the year 1813, the defendant, as principal, and W. A. Kent, and Thomas Wilson, the plaintiff’s testator, as sureties, made and delivered to the Concord bank a promissory note for $750, payable to the bank in sixty days.

<p>Assumpsit for the worb and labor of Joseph Lougee, the plaintiff’s servant, for one year, from the 13th August, 1828. The parties agreed to submit the cause to the decision oí the court, upon the following facts :—</p> <p>The said Joseph Lougee, on the 22d April, 1817, being a poor child, standing in need of relief, and supported by the toivn of Barnstead, where he had his settlement, was bound, by indentures between the selectmen of Barnstead and the plaintiff, as an apprentice to the plaintiff, until he should arrive at the age of twenty-one years. The apprentice lived with the plaintiff, under the indentures, from the date thereof, until the 13th August, 1823, when he left the plaintiff, and went to reside with the defendant, who had notice that be was bound to the plaintiff as aforesaid, and was requested to deliver him up, which the defendant refused to do. Lou-gee continued in the service and employ of the defendant for one year., from the said 13th August, 1823. Lougee was sixteen years old on the 2d October, 1824. He is an illegitimate child, and his mother, at his request, and with the advice of the defendant, procured a guardian, tobe appointed by the judge of probate, of said Lougee, until he should arrive at the age of twenty-one years ; and the guardian, thus appointed, on the 6th October, 1823, by indenture, bound the said -Lougee, with his consent, to the defendant, as an apprentice, until twenty-one years of age.</p> <p>And it was agreed, that if the court should be of opinion, upon the above facts, that the plaintiff was entitled to recover, he should have judgment for forty dollars damage, and costs, otherwise the plaintiff to be non-suit.</p>

: This was a writ of entry, upon which the demandant counted upon bis own seisin of a tract of Sand in Eaton, and upon a disseisin ,by the tenant. The original writ in the cause was tested July 20, 1821.

Tins was an action of assumpsit for the support of á pauper, alleged to be settled in the town of Wakefield.

Tkespass quart clausum. fregit. The defendant pleaded, that tiie locus in quo was his soil and freehold, whereupon the plaintiff newly assigned the trespasses, and the defendant pleaded the general… Held: that it is sufficient that he state, on due notice. And who is to decide for lie officer what constitutes due notice ? It is a fact which he is to decide for himself — the law imposes upon the officer that duty, even before he makes his return.

<p>Debt upon a probate bond, given by the defendant upon his taking upon himself the burthen of executing the will of Samuel Davis, deceased.</p> <p>The cause was submitted to the decision of the court, upon the following facts :</p> <p>Samuel Davis, having made his will, and therein appointed the defendant his executor, died on the 3d January, ISOS. The will was duly proved and allowed on the 20th January, 5SOS ; and the defendant took upon himself the burthen of executing it. The testator, after devising all his real estate, with certain exceptions, to his grandson Samuel Davis, inserted in ins will the following clauses :</p> <p>“ I further say, that my grandson Samuel Davis, or my ex- “ ecutor, pay or cause to he paid to my son Samuel Davis's two i( daughters, Sarah Bickford and Hannah Davis, fifty dollars ;i each, in six months after the decease of their parents.”</p> <p>“ I further say, that my executor shall sell so much of my “ personal estate as shall pay my debts and incidental char- “ ges, and if there shall be any more, it shall be the property “ of my daughter-in-law Abigail Davis,"</p> <p>The whole amount of the personal estate, which came to the hands of the defendant., was §95 20, for the whole of which he has accounted in the probate court ; and there is nothing in his hands. The legacies to S. Bickford and Hannah Davis have never been paid ; although they became payable by the decease of their parents on the 10th Jan 1820.</p> <p>The testator’s grandson, Samuel Davis, entered and took possession of ail the real estate devised io him as aforesaid.</p> <p>And it was agreed, that if the court should be of opinion, that this action could be maintained against the defendant to recover the legacies given to S, Bickford and Hannah Davis, as aforesaid, the defendant should be defaulted ; but, if the court should be of a different opinion, then the plaintiff to-become nonsuit.</p>

Assumpsit for the support of a pauper. The cause was submitted to the decision of the court, upon the following facts. The pauper had a legal settlement in the town of Deer-field, and, being sick in Lee, and unable to support himself, and standing in need of relief he made application to one,.of the selectmen of Ixe, who ordered supplies to be furnished to him. But no application was made to the other two selectmen of Lee.

Tkkspass for an assault and battery, and false imprison» ment, and detaining him in prison until he paid $15 95.

This was a writ of entry, in which the demandant counted upon Ms own seisin of three parcels of land in Atkinson, and upon a disseisin by the tenant. The cause was tried here, upon the general issue, at February term, 1825, when it appeared in evidence, that John Bassett, sen. being seized of a farm, of which the demanded premises are parcel, oti the 20th Nov 1809, conveyed the same to IF.

Assumpsit, for that the defendant on the 22d December, 1822, having received of the plaintiff certain books, &e. of the value of $2315, in consideration thereof by his note or memorandum in writing, dated the 22d December aforesaid, promised the plaintiff safely to keep the same, at his own expense, and return the same to the plaintiff on demand, the same being valued at $2315.

Assumpsit for the support of Ehenezer Williams and wife, paupers, alleged to have their settlement in the town of 4!e\a„c. The cause was iiv^aborí», tbp (rpnAraViooue, at April term, 1835, when it appeared in evidence, that E. Williams removed to Alexandria in the year 1784, and resided there until the year 1795, when the town of Alexandria was divided, and that part of the town, ⅛ which he then resided, was incorporated as a town, by the name of Danbury.

This was a writ of entry. The demandant alleged, that o'ne Joseph C. Barns, being seized in fee of the demanded premises, on the 14th August, 1816, conveyed the same to the demandant, in fee and in mortgage, to secure the payment of $2045. The tenants pleaded, that the said instrument, under which the demandant claimed to hold the land, was not the deed of the said J. C. Barns ; and upon this, issue was joined.

<p>This was a scire, facias against the defendant as bail of James Conner, There was an averment in the scire facias, that J. M. a deputy sheriff, to whom the execution against the principal was delivered, gave notice to the defendant in writing, on the 12th January, 1824, that the execution was in his hands, &c, and also an averment, that J. M. kept the execution in his hands, from the said 12th January, until the return day thereof.</p> <p>J. M. the deputy sheriff, made his return, as follows, upon the execution against the principal.</p> <p>Ci Strafford, ss. On the 12th January, 1824, I gave D. “ C. A. &c. a notice in writing, &c.</p> <p>J. M., D. Sheriff.”</p> <p>“ The within named James Conner non est inventus.</p> <p>J. M., D. Sheriff”</p> <p>And the question was, whether the return of the sheriff was sufficient to prove the averment, in the scire facias, that the officer kept the execution in his hands until the return day.</p> <p>On behalf ef the plaintiff it was contended, that the return of non est inventus being without date, it must be presumed to have been made on the return day. And if the officer had the execution in his hands on the return day, the presumption was, that he had kept it, from the time he gave notice, until that day.</p> <p>cited the case of Chadbournc ss. Hodgdon, 1 JV» II. Rep, 359.</p>

Debt upon a probate bond, given by the defendant, upon taking upon himself the administration of the estate of Timothy Lovell, deceased. The defeKlIant pleaded omnia performavit. Tie plaintiff in his replication alleged, as a breach of the condition of the bond, that the defendant, having received of me J. Weatherbe*, a debtor oí the intestate, $50 70, had refused to account for it ; and the issue joined involved the question, whether the defendant had accounted for that sum.

Tins was a scire facias against bail, and was submitted to the decision of the court upon a statement of facts, in which it was agreed, that the defendant became bail ; that judgment had been rendered against the principal ; that execution had issued and had been delivered to a deputy sheriff, who had returned, that he had given notice to the bail, that ■lie had the execution, &c. and, under the date of the return day, lie returned “ non est inventus,” but did not state in…

In this case a complaint was filed with a justice of the peace, in pursuance of the statute of 1820, cap. 36, against Walker, for non-attendance at an annual training. Upon the trial before the justice, judgment was rendered in favor of Walker ; from which judgment Anderson appealed to this court, and, after having entered his appeal here, became nonsuit ; upon which the appellee moved for costs.

This was a writ of certiorari, issued on motion of the respondent, commanding two justices of the peace for this county to certify, their doings upon a certain process of forcible entry and detainer, had before them on the complaint of one Willard against the respondent, in the year 1817. And now the court was moved to quash the writ of certio-rari, as having issued improvidentially, after it was barred by the statute of June 16, 1791. 1 /V’. IL Laws, 165.

This was an action of trespass quare clausum fregit, commenced in this court and tried here, upon the general issue, at this term, and a verdict returned for the plaintiff, with ‡2 33 damages ; and the title of real estate ivas not in question.

Assumpsit upon a note made by the defendant, and one Amos Kimball, dated October 15, 1814, for ‡ 100, payable to James George, or order, in nine years, and by George endorsed. The defendant pleaded infancy ; to which the plaintiff replied a promise made by the defendant after he arrived at the age of twenty-one years; in which, issue was joined.

<p>Assumpsit for the support of two children, paupers, alleged to be settled in the town of Deerfield.</p> <p>The cause was tried here, at November term, 1824, upon the general issue ; when it appeared, that one of the paupers was of the age of nine years, and the other of the age of seven years ; and that they were the illegitimate children of Susanna Thurston, who, at the time of their birth, had her legal settlement in the town of Deerfield. In 1821 the said Susanna was married to Henry Lillis, who had his settlement in the town of Dorchester. It also appeared, that the said Henry and Susanna had lived together in Dor-chester for more than twenty years, as man and wife ; and - ' as had seven children, reputed to be the children of ‘f said Lillis.</p> <p>On the part of Deerfield, it was contended, that these children, being illegitimate and living with the mother at the time of her marriage, changed their settlement with her upon that event ; but the court being of a different opinion, a verdict was taken for the plaintiff, subject to the opinion of the court upon the foregoing case.</p>

This was a writ of entry tried here, upon the general issue, at May term, 1825.

Assumpsit upon a promissory note, dated January 20, 1823, for $122 06, made by the defendant, and payable to the plaintiff in one year, with interest.

This was a petition for anew trial in an action, in which judgment bad been rendered in favor of Stickney, at Novem her term of this court here, in the year 1820.

Trotee for pine timber. The cause was tried here, upon the general issue, at May term, 1824 ; when it appeared in evidence, that the plaintiffs, being inhabitants of the state of Vermont, and having taken a large quantity of pine timber from land iu that state, put the same into Connecticut river, upon the fifteen miles falls, so called, several miles above where it could have been rafted ; for the purpose of carrying the same timber, upon the river, through this state to…

Trespass de bonis asportalis. The defendant pleaded in bar, that the inhabitants of school-district No. 4, in Enfield, qualified to vote in town affairs, at a legal meeting, on the 17⅛ March, 1821, voted to raise $160 for the párpese ©f building a school-house in said district ; that on the 8th April, in the same year, the clerk of the said district certified to the selectmen of the said town the said vote ; that on the 25th May, in the same year, the said selectmen assessed…

<p>It is a general rule, that children shall be considered as emancipated, when they arrive at the age of twenty-one years. But when they are compelled to remain longer with a parent, on account of infirmity of body or mind, so long as they so remain, they are not to be considered as emancipated.</p>

Assu.\iPsit upon a note in the following words : “ November 19, 1817. For value received, I promise “ John Eastman, to pay him, or order, one hundred dollars, “ to be paid at Esqr.

Covenant broken. The plaintiff alleged in his declaration, that the defendant, by deed, dated December 10, 1813, conveyed to him a tract of land in Boseawen, and by the same deed covenanted with the plaintiff, that the same land was free of all incumbrances. The breach of the covenant assigned was a public highway laid out across the land, previously to the said conveyance. The plea of the defendant traversed the existence of a highway ; «pon which issue was joined.

This was an action of trespass for stopping the plaintiff’* team and taking from his sled and carrying away one cord of wood.

This was a writ of entry. The tenant pleaded, in abatement of the writ, the infancy of the demandant, who sued ivithout a guardian or prochein amy. The demandant moved for leave to amend his writ, by inserting the name of a prochein amy. To this the tenant objected, and contended, that the writ was not amendable, in this respect, by any known rule of practice.

Assumpsit upon a promissory note for $15, made by one Stephen Henderson, payable to the defendant, or order, on demand, with interest, and by the defendant indorsed. The cause was tried here, at February term, 1825, upon the general issue ; when it appeared in evidence, that the defendant indorsed the note in blank and delivered it to one Warren, who passed it to the plaintiff, for a valuable consideration.

Assumpsit upon a note, dated February 21, 1823, for §21,92, made by the defendant and payable to the plaintiff or order. There was also a count upon an account for medicines and visits, as a physician, amounting to $21,92. The cause was submitted to the decision of the court, upon the following facts. The plaintiff did the services, and furnished the medicines, mentioned in the second count; but at the time, the defendant was an infant under the age of twenty-one years.

This was an action of assumpsit for the support of Elisabeth Smith, a pauper, alleged to have her settlement in Chester. Held: “that ‘■'■payment to the poor doth not give a settlement, unless the “ party was rated, for the rating is the act of the parish, and “ not the other.

This was an action of assumpsit, brought by Henry M. Pearson and Nathaniel P. Moulton against Silas Parker, for money paid, laid out, and expended ; and was submitted to the determination of the court upon the following facts. On the 29 th of April, 1824, the plaintiffs, with the defendant, and as his sureties, gave their promissory note to Alexander Caldwell for $192 23, payable in six months with interest, which note was left with S. L. Greely for collection.

This was a prosecution by Twombly, as clerk of a militia company in Dover, to recover of Pinkham a fine of $2, for neglecting to appear with the company, at a company training and inspection of arms, on the 6th May, 1823. The cause was submitted to the decision of the court upon a statement of facts, in which all the facts, necessary to maintain the prosecution, were admitted, provided the respondent was liable todo military duty in said company.

Trespass for arresting and imprisoning the wife of Smith Kimball, on the 18th January, 1823, and detaining her in prison forty days.

This was an action of assumpsit for relief furnished to George Treferin and family, paupers, alleged to have their settlement is Alton. At the trial here, Feb. term, 1825, on the general issue, the plaintiffs attempted to prove the settlement of the paupers in Alton» by the taxation of said George seven years for his poll.

This was an action of trover for 3 tons 6 cwt. of good English hay. At the trial here, September term, 1825, upon the general issue, it appeared in evidence, that on the 36th October, 1824, one Benjamin Stevens made and delivered to the plaintiff a writing in the words following, viz. “ October 16⅛, 1824.

<p>Assumpsit for a quantity of hewn stone sold and delivered.</p> <p>The cause was submitted to the decision of the court upon the following facts. The p amtiff, in the summer of 1816, Contractpd to underpin the defendant’s house With hewn stone, and the stones, mentioned in the plaintiff’s declaration, were furnished for that purpose. But it being found, that the same stones would not answer for that purpose, they were not used, but were left near the house of the defendant by the plaintiff, until the fall of that year, when the defendant built a dairy, and put into it the same stones. In the fall of 1817 there was a final settlement between the parties for the underpinning of the house. There never was any contract for the sale of these stones, but at said settlement, Hill said, they were taken without leave, and Davis, that they Ave re worth nothing.</p>

Assumpsit upon a note of band, dated August 18, 1817, for i'M 77, made by Runlett $• Taylor, and payable to the Plaintiff, or order, on demand with interest. Held: that when; there are two joint traders, and one accepts a bill drawn on both, for hinwelf and partner, it binds both, if it concern the trade ; otherwise, if it concern the acceptor only, in a distinct interest and respect. 2 Esp.

This was an action of debt, upon a probate bond, given by Betsey Hoit, when administration of the estate of William H Hoit was committed to her.

In this case, the issue joined between the plaintiff and The trustee was, whether The latter had in his hands any goods, effects, or credits, of Daniel Hopkins. This issue was t ried hce at October term, 1825, when the plaintiff called the said Hopkins, who had been defaulted, as a witness, to maintain the said issue on his part.

Th-s was an action, of trespass quare clausum fregit, and was tried here, at October term, 1825. The defendant, at April term,1825, pleaded the general issue, and with the plea ere notice, that the title of the plaintiff would not be disputed. On the trial the plaintiff’s title was admitted ; and ihe ju:y found for the plaintiff, and assessed the damage in the sum of three dollars.

Covenant broken. The plaintiff in his declaration alleged, that one Caleb Jones, on the 12th December, 1780, by deed conveyed to the plaintiff “ the Charlestown school farm,” in Amherst, in fee ; and by said deed covenanted with the plaintiff, that he, the said Caleb, and his heirs, would warrant the same to the plaintiff ; that said Caleb having in a part of said farm only an estate for his own life, the tee being in Deborah Jones, wife of the said Caleb, died ; where* Spon…

. Trespass de bonis asport-atis. The case was tried here, upon the general issue, at October term, 1825, when it appeared in evidence, that one John JWJS’eil, having sued out a writ against one Isaac Jones, the sheriff of this county deputed the plaintiff to serve the same.

Trespass de bonis asporlatis. The causé was tried here, upon the general issue, at October term, 1825 ; when it appeared in evidence, that on the 20th… Held: that the action well lay, and add “ the letting the goods for “ rent makes the case much stronger.” In Barrow vs. Pax-ion, (5 Johnson 258,) the plaintiff demised a house, and to secure the rent took a bill of sale of the household furniture, with a proviso, if the rent was paid as stipulated, the sale to be void.

Patience Horton brought an action against Palmer, in the court of common pleas, where judgment was rendered in her favor, from which judgment Palmer appealed to this court, but neglected to enter his appeal. Whereupon the said Patience filed a complaint, and prayed, that the judgment of the common pleas, might be affirmed ; and the question was, whether she was entitled to double costs of appeal, under the statute of December 21, 1824, sec. 4 ?

This was a writ of entry, in which the demandants counted upon their own seisin of several tracts of land in Stoddard, in this county, and upon… Held: that the grantee might maintain trover for them. 6 Taunt. 12, Hooper vs. Ramsbottom. This is a conclusive authority against a right of control in the grantor, after delivery as an escrow. The reservation of a right to revoke, would be utterly inconsistent with a delivery, to be delivered over on the performance of a condition.

Assumpsit upon a promissory note, made by the defendant, dated 2 January 1824, for $176,25 payable to the plaintiff in June then next with interest. The cause was tried here, at May term 182:5, upon the general issue. The defendant admitted, that he made the note ; but showed in evidence, that it was given for timber sold to the defendant by the plaintiff.

Trespass for breaking, and entering the plaintiff's clo.-e in Lempster, The defendant pleaded in bar, that, for a long time before and at the time, when, &c. there had been, and was a certain private road in said Lempster, beginning at the west side of the second N H. Turnpike road, &c. thence west one hundred and eighteen rods, thence W 34 degrees N. 26 rods, thence W. 10 degrees S 6 rods, thence W. 10 N to the line of Harris Bingham’s land ; which private road, aforesaid,…

Trespass on the case, for that the said Favour, on the 27th September, 1825, at D. having in his hands a firelock, highly charged with powder, and a great quantity of wadding, so exceedingly carelessly managed his said firelock, that he discharged its contents into the foot of the plaintiff ; whereby he was put to great pain, &c. The cause was tried here, upon the general issue, at November term, 1825 ; when it appeared in evidence, that the plaintiff was standing in an…

Assumpsit upon a note, dated June 14, 1814, payable by the defendant to the plaintiff’s intestate on demand, for ⅛ I-14, 71. The plaintiff declared only upon the promise made to the intestate. The defendant pleaded tlie statute of limitations, to which the plaintiff replied a promise within six years to the intestate.

This was an action of debt. The plaintiff alleged in his first count, that the defendants, on the IstMay, 1824, had erected and together possessed and kept a mill-dam, in the town of H, upon and across the Contoocook river, a stream falling into Merrimack river, so as to prevent the passage of salmon in Contoocook river, where said fish usually pass ; and the defendants did continue the dam, so erected, from said 1st May to the 20th June, in the same year, and did not, at…

Assumpsit for the support of Jonathan Robinson, jr. a pauper, alleged to be settled in JSew-Market.

Assumpsit upon a note for £118 50, dated October 11, 1817, made by the defendant, and payable in six months to the plaintiff, with interest. The action was commenced on the 12th April, 1825, and was entered here at September term in the same year ; when the defendant pleaded in bar, that the cause of action did not accrue within six years next before the commencement of the action. To this plea there- . was a genera] demurrer and joinder in demurrer.

Trover for six loads of manure. The cause was tried here, upon the general issue, at September term, 1825 ; when it appeared in evidence, that the manure, mentioned in the declaration, was taken by the defendants in May, 1821, in and about a barn in Lee, and carried away. The barn had been in the possession of Richard Pinkham, the plaintiff’s late husband, from 1817 to 1819, when he died.

This was a writ of entry, in which the demandant counted upon his own seisin of one sixteenth part of a tract of land in Milton, and upon a disseisin by the tenant, and was tried here, upon the general issue, at February term, 1825.

Debt qui lam upon the statute of usury. It was alleged in the declaration, that Bowman, on the 13th December, 181T, delivered to J. S. Harper $274 32, and took a note for the same, under an agreement, that J. S. Harper should pay interest for the loan, at the rate of 18 per cent, per an-num ; that, on the 19th November, 1818, J S. Harper paid to Bowman 220 40, aud gave a new note for the balance, being $100.

Tms was an action of debt against Anna Sanborn and her sureties, upon a probate bond, given by the said Anna upon her appointment as administratrix of the estate of John P. Sanborn.

Tins was an ‘ction of trespass, against the defendants, for taking and converting to their own use, the plaintiff’s horse.

In this case, Smith brought an action of trespass against the defendants, which was entered here at February term, 1823, when Gilman was defaulted. Clark pleaded the general issue, which was tried, at September term, 1824, and a verdict returned for Smith, with damages assessed at $130 : whereupon judgment was rendered fsr the plaintiff, for that sum, against Gilman and Clark.

Assumpsit for use and occupation of a shop and tools in Hancock, in this county, from December 1, 1823, to September 13, 1824.

This was an action of trespass for breaking and entering, on the 24th Maj, 1824, the plaintiff’s close, and carrying away 40 loads of manure. The defendant pleaded the general issue, and also a license, on which issue was joined.

Assumpsit for $62 50, money had and received by the defendant for the use of the plaintiff.

This was an action of trespass For breaking- and entering the plaintiff’s close, in Surry, and taking and driving away fifteen sheep of the plaintiff. The cause was submitted to the decision of the court upon the following facts; At the time, when the supposed trespass was committed, the defendant was a deputy sheriff, and had in his hands an execution against one W. Baxter, with directions to levy the same on certain sheep of said Baxter.

Trespass de bonis asportatis. The defendants pleaded. 1st, the general issue ; 2d, in bar, that at a meeting of the inhabitants of Columbia, duly holden on the second Tuesday of March, 1825, they were duly chosen selectmen of tuai tew», feif-tfcg.jeáf following, as# JSToah Lyman a so-rveyor ©f highways; and fíiui at the same meeting ii was voted to raise ti ■ -oí of ⅜278 9.2, for laying out ami repairing highways ; fb.M es-i ¡he ltt April, 1822, the said selectmen duly…

Debt Upon a judgment, rendered by a justice of the peace in this county, in favor of Hubert Strong, the plaintiff’s testator, against the defendant, in March, 1814. The cause was submitted to the decision of the court upon the following facts.

Debt upon a judgment, rendered by a justice of the peace, for $9 91, debt and ⅜4, costs of suit. At November term, J825, the defendant pleaded in bar of the further maintenance of the action, that since the last continuance, to wit, on the ⅞3<5 March, 1825, the said Noyes paid to the said plaintiff the sum of tea dollars, in full satisfaction of the said judgment, which said sum the plaintiff accepted, in full satisfaction of the same.

This was an action of trespass for an assault, battery, ami false imprisonment, on the 1st day of August, 1824.

Assumpsit upon a promissory note, dated April 9, 1819, for $50, made by the defendant, and payable to Ü. Smith, or bearer, on demand. ThQ cause was tried here, upon the general issue, at November term, 1825, when it was admitted, that the defendant. made the note ; and it appeared, that on the day of its date, tí.

Assumpsit The declaration contained three counts. The defendant, in the first place, pleaded the general issue to the whole declaration. He then pleaded in bar of the fust count, but without alleging that he did it by leave of the court, that he never promised within six years. The plaintiff joined in the general issue, and demurred to the plea in bar of the first count, and assigned for cause, that the said plea was pleaded without leave of the court.

Assumpsit for money had and received, and for money paid, laid out, and expended. Held: that a grant differed in nothing f orn a contract executed, A grant, says Marshall, C J, in its own nature, amounts to an extinguishment of the rights of the grantor, and implies a contract not to re-assert that right.

This was a writ of entry, ⅛ which the demandant counted upon his own seizin of a tract of land in Hanover, and upon a disseizin by the tenant. ,. The cause was tried here at May term, 1825, upon the general issue ; when it was admitted, that one Aaron Wright, was once lawfully seized of the demanded premises, and that Wright’s estate in the land had been conveyed to the doman-dant, unless it had previously passed by virtue of an extent oí-an execution, as hereinafter stated.

Assumpsit upon a promissory note, dated October 2, 1823, for $42 56, payable to Sanborn, but not to his order, in ninety days with interest after, and ¡nade by Little, The defendant filed as a set-off, a note made by the plaintiff, dated March 13, 1824, for %01 53, payable to the defendant, or order, on demand with interest.