Volume 31 — New Hampshire Reports

<p>As between the parties to a suit and those claiming under them as privies, gnd all others whose rights and liabilities are dependant upon the suit, the return of a sheriff of matters material to be returned, is so far conclusive evidence, that it cannot be contradicted for the purpose of invalidating the officer’s proceedings, or defeating any rights acquired under them.</p> <p>The return of a sheriff is not conclusive as to third persons, whose interests are not connected with the suit, nor as to collateral facts, or matters not necessary and material to be returned.</p> <p>To make the return of a sheriff competent evidence for himself, it must appear that it was his official duty to perform the acts set forth in the return, and that it was obligatory upon him, as such sheriff, to do the acts and make the return.</p> <p>Where a sheriff, in his return on a writ of attachment, set forth that having attached certain property mortgaged, he made a demand of the mortgagee-for an account of the debt secured by his mortgage, and that no account being given him, pursuant to his demand, he retained the property, &c., and the mortgagee brought an action of replevin against the sheriff, and took the property — held, that the return was not evidence for the sheriff that a legal demand for an account, under the statute, had been made upon the mortgagee, and that he had neglected to give the account.</p> <p>In replevin, if the plaintiff recovers, he is entitled to damages for the caption and detention only; but if a verdict be found for the defendant, he recovers the value of the property.</p>

Error, brought to reverse a judgment of the court of common picas of this county, rendered at the February term, 1849, in favor of said Simes against said Claggett. The record returned to this court by the common pleas, in response to the writ of error, is in due and usual form, and shows a judgment regularly and formally entered up by that court, at that term, in favor of the present defendant against the plaintiff in error. .

Petition, for partition of 'certain real estate situate in Deerfield, in the county of Rockingham, entered at the superior court of judicature, December term, 1852, in which the petitioner claims to be seized as tenant in common with certain petitionees, of two undivided third parts of the same, and prays to have his share thereof set off to him in severalty. The said Porter & Rolfe appeared and filed their plea, setting forth: 1.

Writ op entry, brought to recover the possession of a tract of land in East Kingston, and entered at the September term, 1851, and continued from term to term until the September term, 1853.

This is a petition to the court of common pleas, to strike out the entry of a judgment alleged to be made by a former clerk, in vacation. At the September term, 1852, a case was made and transferred to the superior court, and there decided, of which decision a full report will be found in 5 Foster’s Rep. 402.

This was a writ of entry to recover a parcel of land in Derry. The suit was commenced January 26,1852. Plea, the general issue, with a claim for betterments. It was admitted that Samuel Remick died, intestate, about December, 1837, lawfully seized of the demanded premises, and that his estate descended, in eight shares, to his heirs, of whom the demandant is one ; and she has also obtained deeds of all their rights, from six of the other heirs.

This cause is a review of the action reported in 1 Foster’s Rep. 175, and it was tried upon the same pleadings. The question at the trial was whether the mortgage from John Mugridge & Co. was valid against his creditors. There was evidence tending to show that the notes were given wholly for a debt to their full amount, then due from Mugridge to the mortgagees, Belknap, Hale and Jones.

<p>A complaint, made by the city marshal of Portsmouth, against a person for keeping a bowling alley without license, in violation of a city ordinance, is a criminal, and not a civil proceeding.</p> <p>A respondent, in such case, cannot be required to advance the costs of copies and entry, and he cannot recover any costs.</p>

<p>A husband who deserts his family and makes no provision for their support, is answerable for necessaries for them.</p> <p>A husband who lives voluntarily apart from his wife, is liable for necessaries for his children residing with her.</p> <p>A wife and children, living apart from the husband, lose all claim to charge him for necessaries, if they refuse to go to his house to live, upon his request, after he has made suitable provision for them there.</p> <p>But such request will have no effect, if accompanied by threats or remarks showing insincerity.</p> <p>So if no suitable provision is shown to have been made.</p> <p>Notice iu the newspapers not to trust a wife, will be of no effect as to those who had no notice of it.</p> <p>The right of a party to recover for necessaries, delivered by his order to the wife of another, will not be affected by the person of whom they were ordered pre» senting a bill for them to the husband, without success.</p>

Case, for unskilful and careless treatment of the plaintiff’s injured limb, by the defendant, a physician and surgeon. 1. On the trial, the defendant proposed to inquire of a physician, under whom the defendant pursued his preparatory studies, his opinion whether or not the defendant, at the time he closed his studies with him, had more than the ordinary skill of the members of the profession, judging from his own acquaintance with them.

Debt, on a bond dated March 5,1852, with the following condition: “ The condition of this obligation is such that if the said Hayes shall save the said Tufts and Foss harmless from an attachment on the farm or parcel of land, with the buildings thereon, situate in said Farmington, now occupied by said Tufts, and purchased by said Tufts and Foss of said John S. Hayes, which said attachment was made on a writ in favor of George M. Herring of Farmington aforesaid, and shall…

Assumpsit, under the statute for one half of two bills of fees paid by the plaintiff to the fence-viewers, for two different divisions of fences between the plaintiff and the defendant, as awarded by the fence-viewers. On the trial, it appeared that the applications by the plaintiff to the fence-viewers, for the divisions, were in writing, but were never recorded in the town records with the other papers in the eases.

Kingman, a creditor of the estate of John Kingman, late of Durham, deceased. By the agreement of the parties and from the appeal papers, the following facts were made to appear. John Kingman died intestate on the 31st day of May, 1854, and on the 6th of June following, his son, John W. Kingman was appointed administrator on his estate.

Appeal, from the decree of the judge of probate of this county, whereby there was allowed to Mary P. Kingman, the widow of John Kingman, deceased, for her present support, the sum of $1250. The parties agree to the following facts: John Kingman, the husband of the appellee, died intestate, May 31,1854, and an administrator on his estate was appointed on the 6th day of June following.

<p>The privity required to exist between parties to proceedings in equity, is such only as gives the complainant a title to sue the defendant.</p> <p>As a general rule, all who are to be affected, either immediately or consequentially, by the decree of a court of equity, should be made parties to the bill.</p> <p>Where a bill alleged that B., by warranty deed, conveyed certain premises to J., who conveyed them to C., and C. conveyed them to L., also by warranty deeds ; and that the deed of B. to J., by mistake, covered more than twice as much land as was intended or supposed by the parties to it to be conveyed, and the deeds from J. to C. and from C. to L., referred to that of B. to J., for a description of the land conveyed; and the bill charged that L. knew of the mistake at the time he took his deed, and with the fraudulent design of depriving B. of the land not sold, commenced a suit at law against him for the recovery of the same — held, that there was sufficient privity between B. and L. to sustain a bill in equity by the former against the latter. Held, also, that upon such a state of facts, J. and C. should be made parties to the bill.</p> <p>A court of equity may, upon parol evidence, correct a mistake in a deed, or other written contract, if the same be clearly shown to exist.</p> <p>Under the general prayer for relief, in a bill in equity, the complainant may pray at the bar for such specific relief as the statements of the bill will warrant, provided it does not conflict with that specifically prayed for.</p> <p>It seems that a court of equity may order a party holding a deed of real estate, which he knew at the time of receiving it, covered more than his purchase, to quitclaim to the real owner that part which he fraudulently claims to hold, notwithstanding the real owner is not his immediate grantor.</p>

Foreign Attachment. It was agreed by the parties that at the time of the service of the writ upon the trustee, the principal defendants resided out of the State, and no service was made on them, nor did they appear, nor were they notified till after said James Foss had disclosed, when one of the principal defendants appeared.

Assumpsit. In the declaration were four counts, all substantially for the same matter, the grading of a section of the defendants’ road. The first count was on an account annexed; the second, general indebitatus assumpsit for work, &c.; the third, general quantum meruit for the same; and the fourth, general count for money paid out, &e. At a prior term, under a rule for a specification, the plaintiff filed one under the second and fourth counts, but not any under the third.

Asuiipsit, for work and labor, &c. The defendant filed a set off, consisting' chiefly of services and expenses, performed and laid out in obtaining a pardon for the plaintiff, when he was imprisoned as a convict for crime in the State Prison of Maine, at Thomaston.

Assumpsit, to recover the sum of $1500, insured by the defendants upon the plaintiff’s stock of goods, in his store in Meredith, which were burned on the 11th day of January, 1853. The writ is dated May 5, 1853. The declaration, application, policy, charter and by-laws of the company, existing December 15, 1852, may be referred to as a part of this case.

Appear, from the decision of the commissioner upon the estate of Ebenezer Bickford. The declaration is upon a note, dated December 18,1844, for $500, payable to the plaintiff, or order, on demand, with interest annually, signed by Ebenezer Bickford, on which, four years interest were said to be indorsed. Plea, the general issue. E. Bickford died on the 8th day of September, 1849. On the] 28th of that month, Lane Plumer was appointed administrator.

Assumpsit, upon two notes, signed by R. Tilton, deceased, dated, one, December 8, 1840, for $15,00, the other, October 28,1842, for $12,50, and payable to said Tebbetts, the plaintiff. The pleas were, I. That said R. Tilton never promised; upon which issue was joined. II. That the claims were not exhibited to the defendant, the administratrix, within two years after the original grant of administration, February 17, 1846.

Trover, for a stage coach and a stage sleigh. The parties agreed upon a statement of facts substantially as follows: On the 15th of June, 1852, the plaintiff, being then and still sheriff of this county, attached the coach and sleigh, by virtue of a writ against one C. O. Osgood, and made due return of the attachment on the writ.

This was an action of assumpsit, to recover the sum of eighty-three cents, charged by the plaintiff for that amount paid for finding and setting two squares of glass in the window, and for finding and putting on a lock on the outside door of the school house of said district, in November, 1852. The sum of twenty-five cents was duly tendered by the defendants for the repairs on the window, and was received by the plaintiff in part.

In assumpsit, on an account annexed to the writ, and the general issue pleaded with a set-off, the plaintiff introduced evidence in support of his account, and the defendant offered as a witness one John T. Webster. The plaintiff objected to the admission of said Webster as a witness, on the ground of infamy. In support of his objection, he produced a copy of a magistrate’s record, as follows : “ State of New Hampshire. Strafford, ss.

<p>When real estate is charged with the payment of a legacy, or with the support of a person, it remains subject to the charge, into whosesoever bands it may come, until the legaey is paid, or the support ceases to be required.</p> <p>A testator may charge all his real and personal estate with a -legacy.</p> <p>Where an executor takes an estate charged with the support of any one, and gives bond to pay debts and legacies, his estate is liable for such support and legacies.</p> <p>If a widow waives the provisions of her husband’s will, she is entitled to her legal share in his estate, chargeable, however, with her proportion of any contingent liabilities to which the estate may be subject.</p> <p>Where the widow of C. waived the provisions of her husband’s will, and his estate was liable to a contingent legacy, and also to the support of the testator’s sister, should she require it — held, that dower might be assigned to the widow in her husband’s estate, and that she might also receive her distributive share of his personal estate, upon giving bond to pay sueh portion of the legacy and such part of the support as the whole amount received by her, real and personal, bore to the whole estate.</p>

In equity, the bill being filed by George W. Warren of Wolf borough against Alpheus Swett, Thomas L. Whitton, Jeremiah F. Hall, Joseph Stevenson and Oran Dixon. The bill sets forth, in substance, that George Warren, the father of the complainant, died in 1849, leaving a certain tract of land in Wolf borough, which descended to the complainant and his brother, Benjamin Warren, who were the only heirs of the deceased.

This action was case; the first and third counts in the declaration were as follows, the second count being like the first. “ In a plea of the case for that whereas on the 29th day of March, A. D. 1852, at Piermont, in said county of Grafton, there was,'and for more than twenty years then past, had been a certain public highway leading from Piermont Village, in a southerly direction to Wentworth and the old Coos turnpike, called the Brook road, running through the Chandler…

The cause had been committed to an auditor, with instructions to report the facts, from whose report it appeared that Obadiah Swasey, late of Haverhill, made his will in due form, which was admitted to probate on the 6th day of August, 1836, and contained the following item : “ I give and bequeath to Moses Southard, Esq., of Haverhill, aforesaid, the sum of three thousand dollars; to be paid over to him by my executors, as soon as they may be able without injury to my…

Trespass, for breaking and entering lot No. 17, in the 11th range in the town of Woodstock, and cutting down and carrying away three hundred spruce trees. The plaintiff gave in evidence a deed, dated March 20, 1830, from Timothy Bois, acknowledged March 30, 1853, and recorded February 22,1854, quitclaiming said lot to the plaintiff. He also introduced evidence tending to prove a possession of this lot for the last twelve years.

Assumpsit, for goods sold and delivered. To prove the amount the defendants were to pay for the goods, a contract was introduced, signed by the parties, dated June 29, 1845, which stated the amount to be $1100. The statute of limitations was waived by the defendants, and it was admitted, though there was nothing said about interest in the contract, that interest should be cast on it from date, according to the legal and proper mode of casting interest.

Clarke, administrator of the estate of Polly Clay, late of Thornton, deceased. The case was committed to an auditor, from whose report the following facts appeared. On the 18th day of April, 1850, Polly Clay died intestate, leaving her husband, Nathan Clay, the appellee, her sole heir. William M. Clarke, the appellant, was soon after-duly appointed administrator on her estate; and this controversy is between the said administrator and the said. Nathan Clay.

Writ of entry, brought to recover a tract of land in Bristol. The plaintiffs counted upon a seizin as of fee and mortgage, and the defendant pleaded the general issue.

At the last term of this court, it was decided that a mandamus should issue against the defendant, a justice of the peace of this county, commanding him to make out a copy of a recognizance in due form, alleged to have been entered into by the plaintiff and his sureties, upon an appeal having been taken by him from the judgment of the defendant, in a cause tried before said justice.

It appeared from the copies of the case which were returned to the common pleas by the justice, that when the action was commenced, the appellant, who was the original plaintiff, was an inhabitant of Benton, and the appellee, who was the original defendant, was an inhabitant of Went-worth. The writ was returnable before the justice at Went-worth. The appellee moved the common pleas that the appeal be dismissed, on the ground that it was entered in the wrong district.

Assumpsit. The action was referred to an auditor, who reported that nothing was due from the defendant to the plaintiff. At the hearing before the auditor certain questions of law arose, which, by agreement of parties, were stated by the auditor for the purpose of submitting them to the court. The court, on considering these questions, ordered that the report be set aside, and further ordered the rule by which the case was referred to an auditor to be discharged.

Assumpsit, upon a promissory note, dated at Meredith, May 2,1853, made by the defendants, payable to C. O. Osgood, or order, in six months ; and before its maturity, duly indorsed to the plaintiff for a valuable consideration. Part of the original consideration of the note was spirituous liquors, sold by said Osgood to the defendants, of which the plaintiff was ignorant at the time he purchased the note.

Indictment, for a breach of the license laws. The respondent was convicted upon four indictments, numbered for the purposes of this case, 1, 2, 3, 4.

Debt, on a judgment of the court of common pleas, for the western judicial district of the county of Grafton, recovered against the defendant at the February term, 1844, for $58 debt and $23,01 costs of suit. The defendant pleaded nul tiel record, with a brief statement.

This was a writ of error, brought to reverse a judgment rendered by the court of common pleas, upon a petition to lay out a new highway in the town of Wentworth.

This is an action for money had and received. The following state of facts is agreed upon by the parties.

This was an appeal from the judgment of a justice of the peace. The action was brought under the provisions of chapter two hundred nine of the Revised Statutes; and in the court below, judgment was rendered in favor of the original plaintiff; from which judgment the defendant appealed. The original writ bore date, May 16th, 1854.

The writ was dated February 26th, 1853, and contained one general count for money had and received, moneylent, &c. On the trial, the plaintiff introduced evidence tending to show that in November, 1852, he lent the defendant nine dollars, but there being no writing materials - at hand, no note was taken for the same; that he subsequently-demanded the money of the defendant, and he refused to pay it.

Trespass, for taking and carrying away the plaintiff’s horse.

In this action a plea in abatement was filed, as follows: •!C And the said defendant comes and defends, &c., when. &c., and prays judgment of the writ aforesaid, and that the same may be abated, because he says that although the said writ purports to have been made on the twenty-ninth day of July, A. D. 1854, yet in fact the same was made and delivered to the officer for service, not upon the twenty-ninth day of July aforesaid, but upon the thirtieth day of July aforesaid,…

Complaint for costs, founded upon the following facts : On the thirty-first day of July, 1851, said Merrill commenced an action of trover against said Frazier, returnable to this court at the next term. In August, 1851, the parties agreed that Frazier should return to Merrill a yolje of oxen for which the suit was brought, and that the suit should be dropped.

Assumpsit, to recover the amount of an award of referees, founded upon a submission of the parties. Upon the trial, it appeared that the submission was under seal. After the defendant had argued the case to the jury, he moved for a nonsuit, because the action should have been debt or covenant.

Writ op entry, to recover lot No. 39, in the third division of the original right of Edmund Moulton, in Northumberland, in this county. It was agreed that, at the date of the demandant’s writ, the defendant, Bellows, was in possession of the lot, claiming title, and that Newton, the other defendant, was in possession as a temporary tenant of said Bellows.

Trespass, for taking and carrying away one single sleigh, on the 13th day of December, 1851. Plea, general issue. It appeared that the sleigh was formerly the property of one Ela J. Rounceville, and that it remained in his possession until sometime in January, 1851, when it came into the possession of the plaintiff, where it remained till the defendant took it away. The defendant is a son of said Ela J. Rounceville.

Indictment, against the respondent, Charles Bailey, setting forth that “ at the court of common pleas holden at: Lancaster, within and for the county of Coos, on the first Tuesday of November, in the year of our Lord one thousand eight hundred and fifty-three, the jurors for the State of New Hampshire upon their oath present, that at the court of common pleas holden at Lancaster, in and for the county of Coos, aforesaid, on the first Tuesday of November, in the year of our…

Motion to dismiss an appeal taken from a decree of the judge of probate, made on the 30th day of September, 1854. On the 7th of March, 1854, Bernard Treanor and others presented a petition to the judge of probate, setting forth, in substance, that they were residents of Edinmore, in the county of Monaghan, in Ireland, and were the brothers and sisters and heirs-at-law of Richard P. Treanor, late of Lancaster, in the county of Coos, deceased.

In case, the declaration was as follows: In a plea of the case for the said defendant, on, &c., at, &c., being possessed of a certain grey horse, which was unsound and diseased, and infected with a certain disease called the glanders, which rendered the same horse good for nothing; and the plaintiff, being then and there also possessed of another certain bay mare, of his own proper mare, of the value of fifty dollars, he, the said defendant, to induce the plaintiff to…

Assumpsit. The fourth count of the plaintiff *s declaration was as follows: For that heretofore, to wit, on the 20th day of February, A. D. 1839, the defendants being possessed of a certain farm situate in said Dalton, upon which said farm there was an opening of about fifteen acres indifferently cleared, and a small unfinished house, and also certain other timbered lots of land, which were situate near and immediately contiguous to said farm, from which said timbered lots…

This was a writ of entry upon a mortgage to recover a lot of land in Carroll, in this county. The general issue was pleaded, with a brief statement that before the action was entered he paid the plaintiff' $35, by which the mortgage was paid in full.

Writ of entry, to recover lot No. 26, in the 11th range in Columbia. Plea, the general issue. The plaintiff introduced in evidence, subj’ect to exception, 1.