Volume 30 — New Hampshire Reports

Assumpsit, for supplies furnished to the family of Joseph Chase, consisting of his wife, Emily Chase, and three minor children. The supplies consisted principally of wood, furnished in the winter, spring and fall of 1851, amounting, in the whole, to $¡9,04. The defence set up was, that David Moses, the father of Emily Chase, is liable for their support. It appeared that when the relief was afforded, Joseph.

Assumpsit. The writ contained two counts. The first was for $1700, for work and labor done and performed for the defendants, and services rendered. The second was for $2000, for so much money had and received by the defendants to the plaintiffs’ use. The specification under the second count was for $1800, money received by the defendants of the Vermont and Massachusetts Railroad Company, for the work and labor of the plaintiffs in grading the railroad of said company.

<p>It is not a valid objection to a report of road commissioners, laying out a highway, that one of them had not taken the oath of office, at the time of the issuing of the notices of the hearing, provided the party making the objection appeared at the hearing, without objection at the time.</p> <p>Nor will it furnish a sufficient reason for setting aside such a report, that one of the petitioners was a brother of one of the road commissioners, if that fact shall come to the knowledge of the agent who appears to oppose the laying out of the way, before the close of the hearing, although not until after all the evidence is fully laid before the board.</p>

Assumpsit, for labor done, materials furnished, and money expended, in the erection of a school house by the plaintiff, in district No. 2 in Walpole.

Motion, for trial by jury. At the court of common’pleas, March term, 1853, this case, which had been referred to an auditor, was transferred for the determination of the questions of law arising on the auditor’s statement.

Debt, upon a bond, dated the 18th day of January, 1851, the condition of which was that one William T. Noyes, then a prisoner at the suit of said Fernald, should, within one year from the date thereof, apply to the proper authority and be admitted to take, and actually take, the oath or affirmation prescribed by law for the relief of poor debtors, or in default thereof should surrender himself to prison, as prescribed by law. The writ was dated February 10th, 1852.

Assumpsit. The writ urns dated January 16, 1851, and contained three counts. The first was for $2000 for interest due and owing from the defendant to the plaintiff, on the 16th day of January, 1851. The second was upon a promissory note, dated June 1, 1849, for $200, payable to the plaintiff or order, on demand, with interest.

Assumpsit, for money expended and supplies furnished by Springfield for the support of William Hopkins, a pauper, alleged to have his settlement in Enfield. Writ dated November 30, 1853. Plea, the general issue. It was agreed by the parties that Hopkins was in the town of Springfield, was poor, and in need of relief, and that the relief was furnished by Springfield, and that the town of Enfield was duly notified.

In assumpsit, the defendant pleaded two pleas, as follows : “Sullivan, ss. Court of Common Pleas. By leave of court, as of August term, 1853, Asa Taylor, appellant v. Asa T. Barron, administrator, appellee.

This is an action of assumpsit upon a special contract for the support of Albion Dyke. Said Dyke has a legal settlement in the town of Littleton, but on the third day of March, A. D. 1847, he was bound out by the overseers of the poor for the town of Unity, to the plaintiff, until he should be of the age of twenty-one years.

<p>Where, upon a negotiation for the sale of certain real estate from E. to E., a deed was made by E., and acknowledged, and was taken by an agent of E., who afterwards met K. at the office of M., and E. there produced a deed of a piece of land, and also a mortgage executed by E. to E.; said land being agreed to be conveyed by E. to E., in part payment of the land described in the deed of E. to E., and said mortgage being made to secure the payment of certain notes from E. to E., intended as the balance of the price of said land, over $500 in cash, which was also to be paid to said E. for the land; and E. and the agent of E. conversed awhile, and then parted, and K. took away with him his deed and mortgage, and the deed of E. was left in the possession of one D., by the agent of E., together with a memorandum signed by said agent, directing said X). to hold said deed to be delivered to said E., upon payment of $500 by him for the use of said E., or upon receiving the order of said agent to deliver it; and the money was not paid, and no order was received by I>. to deliver the deed; it was held, that no delivery of the deed of E. to E. was shown.</p> <p>The court instructed the jury that if, at the date of said negotiation, it was the agreement of the parties that certain notes then given by E. to E. should be paid, whether the trade was consummated or not, there was a sufficient consideration shown for the notes, viz., the agreement of the grantor that the grantee should have the deed upon complying with the conditions named; it was held, that the direction was sufficiently favorable to the plaintiff, and furnished no cause for setting aside the verdict.</p> <p>It was held, also, that if it was the understanding of the parties that if a part of the trade should fall through, the whole contract should terminate, and that the notes should not be paid unless the trade was fully completed, upon a failure to comply with the conditions named, there was no sufficient consideration for the notes shown, and no action could be maintained thereon.</p>

Assumpsit, on two promissory notes of Kimball and Paige to the plaintiff, one dated Jan. 20th, 1838, for §100, the other March loth, 1838, for same amount, both payable on demand, with interest annually. Writ dated Dec. 17th, 1849. On the first note is indorsed, 1840, Jan. 20th, received two years interest, to date; 1844, Jan. 20tb, received four years interest, to date; and 1846, Aug. 22d, §25.

Trespass, for breaking and entering the close of the plaintiff, situated in Franklin. Plea, the general issue. The close was not described by boundaries or abuttals, but was called merely the plaintiff’s close in Franklin. The defendant moved that the writ be quashed, but the motion was overruled by the.court.' The plaintiff proved that towards night, on Sunday the 27th of June, the defendant’s cow was upon his premises grazing, between his house and stable.

Trespass, guare clausum. In answer to the alleged trespass, the defendant relied on two mortgages from one McKenzie to him, of the premises in dispute, dated January 21 and March 2,1852, to secure the payment of notes for $200 and $100, of even date therewith.

Trover, for an ox. It appeared that the plaintiff owned the ox, and lent it to one McCoy, to use at Manchester; that while McCoy had it he sold it to the defendant, in February, 1853, and took his note for the same, representing himself to be the owner. The writ was dated May 28th, 1853, and was made out at Concord.

Trover, to recover the value of a horse, wagon, and two cases of hats, alleged to have been converted by the defendant, on the 25th day of September, 1851. -The writ was dated March 7th, 1853. The plea was the general issue.

Trespass, for taking and carrying away a quantity of goods on the 14th of August, 1852, alleged to be the property of the plaintiff, amounting to the sum of $627,83, and consisting principally of liquors.

Case, for negligently killing a eoit. and a cow, by means of the defendant’s engines and cars. Plea, the general issue.

The action was replevin for a three years old bull; and the declaration alleged that the defendant, on the 14th day of June, 1852, in a certain close described in the declaration, took the bull and unjustly detained him. The defendant avowed and justified the taking of the bull as damage-feasant, but did not avow or justify, or in any way answer or defend the detention, and issue was joined on the question of damage. The plaintiff demurred to the avowry.

Assumpsit, on a contract, of which the following is a copy: “ Policy No. 14586, for §3000; premium note f300, dated February 17, 1841, issued by the New Hampshire Mutual Fire Insurance Company, to Noah Wyeth, having been assigned to us, in consideration thereof, we hereby promise to pay said company, or to their treasurer for the time being, all assessments hereafter made against said policy. Israel Hunt, Jr. Jesse Estey.

Assumpsit, on a policy of insurance. Plea, the general issue. At the trial, the following facts appeared: On the first day of July, 1852, Wm. W. W. Ballard applied to the company for an insurance of $1000 on his stock in trade, consisting of English, American and West India goods and produce, situated in Parsonsfield, in the county of York, Maine.

Assumpsit, on an account annexed to the writ, amounting to $260,22. The account consisted of a number of items of clothing, under date of November 7th, 1853; also, of several items of the same kinds of goods, under date of November 11th, 1853, and of two items under date of December 12th, 1853. There was also a credit of $104,34 given December 2d, 1853. The writ also contained a general count for goods sold and delivered. Plea, the general issue.

Assumpsit, on a promissory note, dated April 18th, 1850, made by the defendant, for $55, and payable to Asa Hurl-butt, or order, by the first day of November then next, with interest annually, and by Hurlbutt endorsed to the plaintiff. Plea, the general issue.

The case was submitted to the superior court for the decision of the questions arising therein upon the following agreed statement of facts: The respondent was convicted and sentenced to pay a fine of five dollars and costs, on the sixth d ay of June, 1854, by the police court of the city of Concord, upon a complaint that the respondent, at said Concord, on the fifth day of June, 1854, “ did keep in a certain refreshment saloon and restaurant within the city of Concord…

Habeas corpus, directed to Joseph A. Scott and wife, on the petition of David Parker, commanding them to bring the body of John Gray, before the court in session, &c. The petition alleged that said Gray was improperly restrained of his personal liberty.

Thk indictment alleged “ that the legal voters of the town of Franklin, in said county, at a legal town meeting, duly warned and holden in said Franklin, (on the 14th day of March, A. D. 1854,) in pursuance of an article in the warrant for calling the said town meeting for that purpose, did then and there vote to adopt an act entitled ‘ an act to suppress bowling alleys,’ passed by the legislature of said State, and approved by the governor thereof, (on the third day of…

<p>Towns and cities are not responsible to the county for the support of prisoners committed to the county jail, upon criminal process, except for police offences.</p>

In trespass brought before a justice of the peace, the declaration was as follows: In a plea of trespass, for that the defendants, on the eighth day of October, A. D. 1851, with force and arras, did break and enter the plaintiffs’ close, situated in Loudon aforesaid, bounded southwesterly by the highway leading from Chichester aforesaid, by the dwelling-house-of Stephen Perkins, in said Chichester, to Loudon Centre, northwesterly by land of Oliver W. Morrill, northeasterly…

This was an action of trespass for the taking of certain cattle of the plaintiff by the defendant. It was agreed that, at the time of the alleged takings, the defendant, Little, was a deputy sheriff for the county of Merrimack, and had in his hands, to be levied, an execution in favor of one A, Knowlton against Benjamin C. Kenniston, administrator of the estate of James M. Knowlton, as fol-follows: “ State of New Hampshire.

Assumpsit. The declaration was as follows : to answer to the (plaintiffs,) a corporation by law established, doing business at Concord, in said county of Merrimack, in a plea of the case, for that the said defendant, at said Concord, on the 22d day of September, A. D. 1841, by his promissory note by him described, of that date, for value received in policy number 14,839, dated September 22,1841, issued by the (plaintiffs,) promised to pay said company, or their treasurer for…

<p>C., the administrator de bonis non upon the estate of the intestate, commenced an action of trover for sundry articles of personal property, in different counts, alleged to have been converted in the lifetime of the deceased, and also alleged to have been embezzled and converted after the decease of the intestate: and the defendant pleaded the general issue, and filed therewith a brief statement, alleging that the cause of action did not accrue within six years next before the commencement of the action ; and it was claimed, on the part of the plaintiff, that the cause of action arose from a fraud of the defendant, and that it had been fraudulently concealed from the plaintiff until within six years next before the commencement of the action; and the plaintiff introduced a witness, who testified, among other things, that he was administrator on the estate of the deceased in April, 1826, and at that time had a list or memorandum of the articles sued for in the action, which was given him by the defendant, and’ that the defendant told him that he took the property from the residence of the deceased, after his death, the same being his own property, to pay his ■ honest debts with, and that he summoned witnesses to prove that the defendant carried away property which did not belong to him, and made out nothing, but suspected an embezzlement; that the witnesses were summoned be-■ fore the commissioner of insolvency upon the estate of the deceased, and the whole matter was examined into before him and fully discussed and considered, in the allowance of the claims of the plaintiff against the estate, and counsel was present at the hearing. It was held that, upon the foregoing uncontroverted evidence, the case was not taken out of the operation of the statute of limitations, and that the defendant was entitled to a nonsuit, upon motion, or ■ to a verdict in his favor, by direction of the court.</p>

In equity. The bill states that the plaintiff made his bond, dated May 15,1835, for $800, with condition to convey to Rebecca Blood, deceased, wife of Henry M. Blood, upon payment of $124,12 within a year, certain real estate called the Q,uaid place, bought by him, partly with money of Henry and partly with money of Rebecca. The two occupied the premises during the life of Rebecca, and the sum of $124,12, before named, was paid according to the condition.

Assumpsit, for money had and received and for interest. The specification was for $200 as principal, and $184,54 as interest, on a note given by the defendant to the plaintiff. The writ was dated April 4., 1853. The following is a copy of the note above referred to, together with the indorsements thereon. “ Nashua, September 13, 1849. For value 'received, I promise to pay Gardner Rideout, or order, twelve hundred dollars.

<p>In this State, an entry under a deed or grant is not necessary to enable the grantee to maintain trespass quare clausum frsgit.</p> <p>The title to real estate draws after it the right of possession, and will gire a sufficient constructive possession, to enable the owner to maintain trespass against a mere wrong-doer.</p> <p>An entry upon the land of a stranger to the process, under a writ of possession, will not oust him of his possession, or right of possession, but the entry, and every subsequent act done under it, will be a trespass.</p>

Bill in Equity. — The bill alleged that the plaintiff was the widow of Aaron Woods, late of Nashville ; that during the coverture said Aaron was seized of the premises in which the plaintiff claims dower in this bill.

Assumpsit, to recover the amount of four assessments made Nov. 1, 1848, Jan. 21, 1849, March 26, 1849, and April 28, 1849. Plea, the general issue.

Assumpsit. The case was referred to an auditor, who made report, as follows: The auditor, in his statement of the accounts between the parties, allows the plaintiffs for fines and costs received by the defendant, as acting justice of the police court of said city, on complaints made in behalf of the city by the city marshal, or by some constable or police officer of the city, and exhibited to and returned before the defendant in said court, from January 1, 1852, to January…

Writ op entry, dated September 7, 1852. The following facts were agreed upon by the parties. Benjamin S. Gage died in 1829, seized of the demanded premises in fee, leaving nine children and a widow, whose dower was assigned in the demanded premises, April, 1830.

<p>An officer has no legal right to sell on credit personal property attached or taken on execution, unless by the agreement of the parties or the direction of the creditor. If he does so, it is at his own risk against loss from the credit given.</p> <p>Ef an officer, upon his own responsibility, sell property on credit and apply the full amount of the sales to the satisfaction of executions in his hands, in the order of the attachments, he is discharged from all further liability to the creditors by reason of any amount received for the sales.</p> <p>Where an officer, without the direction of the creditors, made sales of property on credit, on some of which sales he received interest before the return day of the executions, and on others the purchasers proved insolvent — held, that the officer was bound to account to the creditors, on the executions, to the full amount of the sales, but not further.</p>

This is an action on the case, for diverting the water from the plaintiff’s mill, in New Boston, from May 1, 1848, to the date of the writ, April 26, 1850. The plaintiff’s evidence tended to show that one L. Lin» coin, under whom he claimed, purchased the land on the south side of the Piscataquog river, in New Boston, bounded by the river, and in 1804 or 1805 erected thereon the gristmill now owned by the plaintiff, and extended his dam across the river to the north bank.

<p>Security for costs will be ordered, of course, upon a petition to be allowed an appeal from a probate decree, particularly if the petitioner is resident out of the State. ,</p> <p>A petitioner in such case will not be ordered to pay the costs of a previous appeal, which has been dismissed, unless there are circumstances showing vexation, or gross negligence.</p>

Assumpsit, to recover the amount of a note, signed by T. Chase, dated July 19, 1851, for $638,24, payable to Montgomery & Co., or order, in six months, at the Merchants Bank, Boston, and indorsed by said Montgomery & Co., and by this defendant; also of two drafts, one dated March 23, 1851, by Montgomery & Co. on D. B. Kimball for $682, payable to order of said Montgomery & Co. in six months, accepted by said Kimball, and indorsed by said Montgomery & Co. and by this…

The trustee disclosed as follows : “ At the October term, 1853, of the court of common pleas for Hillsborough county, holden at Manchester, the said Christopher Dudley, in an action then and there pending in his favor against me, recovered a verdict of a jury in his favor against me of $164,45. Said case was continued to the present term of said court, and is still pending, no judgment having been rendered on said verdict.

This is an action of assumpsit, founded upon three promissory notes, made' by the defendants, dated August 27, 1847, payable to the plaintiff or order, one in three years, one in four, and one in five years, from September 1, 1847. The notes were made and dated at Lowell, Massachusetts, the plaintiff and said Norris then being citizens of that Commonwealth. About the first of December, 1847, the plaintiff removed to New Hampshire, and has ever since resided there.

Assumpsit, upon a promissory note for $200, signed by the defendants, and payable to one Edward H. Mead or order, and by him indorsed to the plaintiff. Plea, the general issue,.

Case, for obstructing and diverting the water in a mill stream in Nottingham, and flowing and injuring the plaintiff’s land below. The writ was dated July 26, 1848. The general issue was pleaded.

Assumpsit, to recover for sixteen days work in the defendants’ mill, commencing July 21, 1853. The defence set .up is, that the wages were forfeited by virtue of the following provision in the “ regulations ” of the mill, to wit: “ Any person intending to leave the company’s employ, must give notice to his or her overseer, two weeks at least previous to leaving, and continue to work until the expiration of the notice.

Appeal of the administrator from the decision of the commissioner, allowing the plaintiff’s claim against the estate of Mrs. Hutchins. The claim, as presented to the commissioner, and by him allowed in full, was as follows : “ 1847, Oct. 7.

In Chancery. The bill stated that on the 23d day of February, 1842, the plaintiff, Helen, then sole, placed her property, amounting to $8,453,39, in the hands of the defendant, to invest as he should from time to time judge best for the objects of the trust, and, when requested in writing by herself and Dr. Rufus Kittredge, pay and transfer the same to such person as they should appoint.

Assumpsit, upon an account annexed to the writ, of which the following is a copy: a Capt. Joseph A. Lovering, of Greenland, N. H., to the National Lancers, Dr. i( May, 1848.

Assumpsit. This action was brought December 27,1852, to recover for making a piece of road. The writ contains a count for work and labor and materials found and a quantum meruit count. The section in dispute is mostly upon the plaintiff’s land, and is about one hundred and forty-four rods in length, and it is the middle portion of a much longer highway, which was laid out by the selectmen in 1851.

Assumpsit. The writ was dated the fourth day of March, A. D. 1850. The action was commenced to recover the amount of two promissory notes, dated November 30th, 1847, for two hundred dollars each, and payable, the first in one year and the second in two years from said date, with interest; and also a note for one hundred and ninety-nine dollars, with interest after the first day of April, 1849.

Assumpsit, to recover the balance due upon a note, dated January 1,1843, for the sura of $2,190, signed by the defendant, and payable to the plaintiff or order, on demand, with interest; and indorsed, March 27, 1851, $1,200, and June 3, 1851, $200. A receipt had also been given for a sum to be applied on the note. Plea, the general issue.

Trover, for sixty loads of manure. The writ was dated January 24, 1853. The parties agreed to the following facts s The defendant and the father of the plaintiffs were the owners and tenants in common of a farm in Epping, subject to the life estate of their father therein, who died in March, 1852. June 21,1848, the father of the plaintiffs died intestate,, leaving a widow, who administered upon his estate, and the plaintiffs, who were minors, and his only heirs at law.