Volume 32 — New Hampshire Reports

Bill in Equity. The complainants, Abbot and Hunt, state in their bill substantially as follows : In the summer of 1889 it was proposed by sundry individuals to form a partnership, or joint stock company, for the purpose of carrying on a retail trade at Bath Lower Village, in domestic and foreign goods, and, to carry this purpose into effect, proposals were drawn up and signed by the plaintiffs and by the defendant, to the number of about fifty.

<p>Where the defendants put a large quantity of logs upon the ice of a river, and on the breaking up of the ice a dam was formed by the logs and ice, and a channel cut through the plaintiff’s land, and logs were carried upon the land, and it appeared that the defendants used no care in regard to the logs after they were put upon the ice — held, that the evidence was competent to show negligence, and that an action could be maintained for the damage.</p> <p>A tenant and landlord may both maintain actions at the same time for injuries done to an estate: the tenant, for the interruption of his possession and the diminution of his profits ; and the landlord, for the more permanent injury to his property.</p> <p>In a suit by a landlord, not in possession, for damages done to his estate, the declaration should give a correct description of his title, and the injury received, and his interest in the property should he stated according to the facts.</p> <p>Where the plaintiff was in possession of land, under a bond, conditioned that if he supported certain persons during life he should receive a deed of the premises, and it appeared that he had so far kept the condition — held, that he had an interest in the land to the extent of a freehold, and that, under a declaration alleging that he was seized of the premises, he could recover for injuries done to his possession.</p> <p>Where a deposition was taken by one party on notice, and both parties examined the witness at the caption, but the deposition had not been used upon trial, and the witness died — held, that the adverse party was not entitled to use the deposition against the will of the party taking it.</p>

<p>Acceptance and actual receipt by the buyer of goods verbally bargained for, must be shown, to take a case out of the statute of frauds.</p> <p>No act of the seller alone is sufficient.</p> <p>No promise or declaration of the buyer that he will take the goods, then left for him at another place, at a future day, can be hold an acceptance, or an admission of acceptance.</p>

Case, brought under chapter 63, section 5, of the Compiled Statutes.

<p>Where, upon different pleas, different and distinct issues are joined between the plaintiff and several defendants, the court possess the power, and, upon good cause shown, will direct separate trials on the several issues.</p> <p>In a writ of entry, where there are several defendants, who severally plead different pleas, some of which go to the merits and others only to excuse those offering them, on which different issues are joined; and where one of the defendants, who disclaims, is shewn to be an important and material witness for his co-defendant, who pleads sole tenancy and the general issue, on the issue with him; the court, upon application for that purpose, will direct separate trials on the several issues, in such order as will enable the defendant who sets up title in the demanded premises to avail himself of the material testimony of his co-defendant, if, upon the trial of the issue joined with that co-defendant, he shall be discharged from liability.</p>

Writ oe Entry, brought to recover a tract of land in Piermont, in this county. The parties both claim as mortgagees of Tristram Cross, under different mortgages. Plea, the general issue. The mortgage under which the plaintiffs claim was given to the late Joseph Bell, Esquire, and is dated July 19,1843, and recorded July 24,1843. Under this mortgage the said Joseph Bell entered and occupied the demanded premises. The plaintiffs claim as heirs of Bell.

<p>Where a defendant dies pending a suit, and his administrator comes in and defends, and the estate is afterwards decreed to be administered as insolvent, hut the administrator continues to defend the action without any plea or suggestion of the insolvency, and a regular judgment is rendered against him, if execution issue and is levied on one undivided share of the land of the deceased, the levy gives the plaintiff seizin, and title sufficient to maintain a petition for partition against a stranger in possession of the other undivided shares.</p> <p>If, pending a suit for the recovery of a debt, the debt and suit are assigned, and . the assignment put on file in the action, the assignee is to be regarded as the creditor, to whom the execution is to be paid and satisfied, and levy of the execution and delivery of seizin are properly made to him.</p>

<p>A writ of mesne process, not bearing the teste of the chief, first, or senior justice of the court, is not void.</p> <p>The objection that a writ of mesne process does not bear such teste, must be seasonably made, by plea or motion; otherwise it will be held to have been waived.</p> <p>A motion to quash a writ for want of such teste is addressed to the discretion of the court.</p> <p>A writ defective in this respect may be amended by inserting the proper teste.</p>

<p>If the owner of a mill turn into his mill-pond a stream which does not naturally flow into it, he is liable to an action for damages, at the suit of the owner below.</p> <p>Such owner is entitled to recover nominal damages, without proof of any special damage, because it is an infringement of his right, which, by repetition, might ripen into an easement.</p>

This is an action of debt against the defendant, as executor of his own wrong of one J. Goodall, deceased, to recover the amount of a judgment of the Court of Common Pleas rendered against said J. Goodall before his decease.

<p>Infancy is a good defence to an action on the case for deceit and false warranty in the sale of goods.</p> <p>The buyer of spirituous liquors sold without license, in violation of the statute which inflicts a penalty on the seller, may maintain an action on the case for a deceit and false warranty in the sale, if at the time when he bought he had no notice that the sale was made without license.</p>

<p>On a trial for larceny, where the sentence depends upon the value of the property, the jury should be instructed not only to find a verdict of guilty or not guilty, but should also be directed to find the value of the property stolen.</p> <p>Where the respondent was indicted for stealing a breast-pin, alleged to be of the value of ten dollars, and a watch, alleged to be of the value of one hundred dollars, and the evidence tended to show the property to be of a less value than that alleged, and the jury returned a general verdict of guilty, without finding the value of the property, and the court sentenced the prisoner as upon the value stated in the indictment — held, that the verdict was insufficient, and that the judgment should be reversed.</p>

Indictment against the respondent for unlawfully and fraudulently selling to one Joseph G. Burley, at Epping, in this county, on the 5th day of April, 1854, a certain stud colt, which the respondent had mortgaged to one Nathaniel Ladd, on the 23d of March, 1853, without the consent, in writing, of said mortgagee on the back of said mortgage, and in the margin of the record thereof, in the office of the town clerk of Epping, where the same was recorded, to the great damage of…

<p>The powers of a building committee are limited to the amount voted by the district, and they cannot bind the district by any contract beyond that amount.</p> <p>A ratification of the acts of the committee in building a more expensive house, cannot be inferred from the mere fact that the district school is kept in it for a few weeks immediately after it is finished, there being no evidence that the district had any knowledge of the amount expended, or had taken any action on the subject.</p> <p>The boundary of a district is well established by a reference to its. boundaries, on a former division of the town into districts, though there might be defects in the records of the former town meeting.</p> <p>In an action for services no notice is required before commencing an action.</p>

<p>Under the second section of chap. 192 of the Revised Statutes, the Supreme Court is authorized to grant a new trial or review in any case where the party has not enjoyed that right, when it shall appear that justice has not been done, through any accident, mistake or misfortune, and that a further hearing would be just and equitable.</p> <p>It is clearly the misfortune of a defendant to have judgment rendered against him in his absence, and without actual notice, for a larger sum than appears to have been justly due, and in such case a new trial will be granted.</p>

This is an appeal from a decree of the Judge of Probate, made in August, 1849, granting license to the appellee, as administratrix of the estate of Little Day, deceased, to sell real estate of the deceased to the amount of two hundred and twenty-five dollars, to pay the debts and claims against the estate.

This is a writ of error, brought to reverse a judgment rendered in the Court of Common Pleas, holden on the second Tuesday of February, 1855, in an action-in which Abigail Chapman, now plaintiff in error, was plaintiff, James Derby was defendant, and James Burley was summoned as trustee of said Derby. Pending the action, which was commenced August 25, 1849, James Burley died, December 16, 1850, and Harriet L. Burley, was appointed executrix of his will.

In Equity. The bill was filed on the 19th day of February, 1850, by Abraham Miles, of Madbury, against Tichenor Miles, Nancy Miles, Lydia Miles, Joseph Meserve and his wife, Betsey, and John Kingman.

In this action James Bodge was summoned as the trustee of Thomas Johnson, the principal defendant, and on the trustee’s disclosure the following facts appeared: Previous to December, 1852, Lemuel Johnson and John A. Wentworth were partners in trade under the firm of Johnson & Wentworth, and in that month they were sued as partners for debts of the firm, and the partnership property attached by the trustee as a deputy of the sheriff, on sundry writs in favor of Pierce &…

This is an action of assumpsit, brought by the plaintiffs against Oliver, the defendant, in which the Salmon Balls Bank and Morton are summoned as trustees of Oliver. The following facts appear upon the disclosures made by the president of the bank, and by Morton, and the accompanying papers.

Complaint for assault and battery, committed at Somersworth, by the respondent, a resident of Somersworth, upon the complainant, a resident of Dover. The complaint was signed and sworn to at Dover, before a justice of the peace resident in Dover, who issued a warrant returnable before the police court of Dover.

<p>In debt on bond given to the sheriff to indemnify him against liability on account of his deputy, the plaintiff to a plea of release replied, — 1st. Fraud, without specifying the particulars. 2d. False and fraudulent representations that there had been no breach of the condition of the bond ; that the deputy was not in arrear, but had paid up promptly, so that it would be safe for the plaintiff to give the release, on which issues were taken. All the allegations of the replications were proved except that there was no evidence of a technical breach of the condition of the bond.— Held, that this was unnecessary to maintain the issue on the part of the plaintiff on either of the replications.</p> <p>Where one of the sureties on such bond applied to the plaintiff to release him therefrom, as a matter of favor and convenience to the surety, and, in order to induce him to give the release, falsely and fraudulently made the foregoing representations, and at the same time stated that he had made enquiries , on the subject of the official liabilities of the deputy at the offices of the attorneys at law in his vicinity, and had learned the facts to be as represented — held, that the plaintiff could avail himself of the imposition practiced upon him to avoid a release given on the faith of the representations, and that this was not a case for the application of the doctrine that where the party imposed upon has equal means of knowledge, it is his folly to trust to the representations of the other party.</p> <p>If it were a case of that character, semble, that the plaintiff was not bound to resort to the attorneys referred to, nor to the deputy himself, for information on the subject, before giving credit to the representations, as the rule in those cases, where the doctrine is to be applied, is only that the party imposed upon shall give reasonable and proper attention to such means of knowledge as may be within the reach of his observation and judgment, and which he cannot overlook or disregard without negligence and indiscretion.</p> <p>The relation of a sheriff to his deputies, though in law such that he is liable for their defaults without notice, is not such that he is presumed in law to have knowledge of those defaults, so as to preclude him from setting up such fraud in avoidance of a release so given.</p> <p>A verdict will not be set aside on account of ambiguity in the instructions of the court, if it is apparent that the jury were not misled by it.</p> <p>It will be presumed that the jury were not misled by a proposition contained in the instructions, which, when- considered by itself, is susceptible of a construction that would render it erroneous, if, when considered in connection with the other parts of the charge, and in reference to tlie subject matter to which it was understood by the jury to relate, there could be no doubt that another meaning was intended, which would render it correct.</p> <p>In a suit on such bond, conditioned to indemnify the plaintiff against all loss, damages, and costs on account of the acts and neglects of the deputy, he is entitled to receive as damages, in addition to the sums paid by him or his sureties on his official bond to the county, to satisfy judgments recovered against him for the defaults of the deputy and interest thereon, all such reasonable expenses as were incurred by him in and about the defence of the suits in which the judgments were rendered, including counsel fees and a reasonable compensation for his personal services; and in the suit on the bond tlie same expenses and compensation for services, beyond the taxable costs, but not the costs or expenses incurred in a suit upon his official bond, brought to enforce payment of such judgment; and upon a judgment in favor of the sheriff for the penalty of the bond, execution will be awarded as well for the damages that may have accrued subsequent to the commencement of the suit upon the bond, as for those prior thereto.</p>

<p>If the precept of the writ, in a case of foreign attachment, command the officer to attach the money, goods, &c., of the principal defendant in the hands of two or more trustees, without the use of words to denote a joint possession or liability of the trustees, the writ may be amended by inserting the words “jointly,” or “ as copartners.”</p> <p>Whether the trustees can be charged on account of a joint liability, unless such words are inserted, qucere.</p>

In error. The original proceeding is an indictment against the Boston, Concord and Montreal Railroad, found at the Court of Common Pleas, in Belknap County, on the fourth Tuesday of February, 1853, founded on the 7 th section of an act entitled an act in amendment of the laws relating to railroads, passed June, 1850. (Comp.

Case. The declaration was in two counts. The first count alleged that the plaintiff, on the 14th of July, 1841, having a just demand against one John Batchelder, sued out of the Court of Common Pleas for the county of Belknap, his writ of attach- £ ant to be summoned as the trustee of Batchelder ; that the writ was duly served and returned to the August term of that court, 1841, at which term the defendant appeared and answered to the action, which was continued from term to…

<p>A note was made payable to order, and indorsed in blank ; the principal signer on the note being called on for payment, brought the money and paid it over to the holder, who received it as and for payment, and gave up the note to the principal. The money paid in fact belonged to a third person, who sent the principal to purchase it as his agent. Held, in an action by the dwner of the money against a surety on the note, that the note, as to the surety, was paid, and that the action could not be maintained.</p>

Assumpsit upon an account annexed to the writ. Plea, the general issue, with a set-off.

<p>By the act of December 16, 1828, upon any division of a town, the settlement of persons then resident elsewhere, but having a íegal settlement in the town divided, followed their former dwelling places; — if those were dissevered and annexed to another town, their settlement was thereby transferred to that other town. 1</p> <p>Within the meaning of that act, a town was divided whenever any portion of it was separated from the rest, whether the severed portion were incorporated into a new town or annexed to an old one.</p> <p>The act of 1841, abolishing all settlements acquired under laws passed prior to December 31, 1795, operated only to abolish those settlements which it was intended to destroy.</p> <p>Where a woman, having a settlement through her father in one town under laws passed since December 31, 1795, in 1823 married a husband who had a settlement through his father in another town, under laws passed prior to December 31, 1795, she acquired her husband’s settlement upon their intermarriage, and retained it until lost by the operation of the act of 1841, after which she ceased to have any settlement in this State.</p> <p>In a suit for the support of a pauper, where the plaintiffs rely on the settlement of a wife, and allege that her husband had no settlement in this State at their intermarriage, and did not afterwards acquire any, they are bound to prove the truth of this negative allegation, as well the want of any settlement at marriage as the subsequent non-acquisition of one; the establishment of the whole allegation being essential to their right of recovery.</p>

<p>A father and son being seized as tenants in common of a farm, occupied by them jointly as a homestead, comprising two adjacent lots, one lying towards the north-west, called the “ Common lot,” the other towards the southeast, called “Lot No. 14,” the boundary line between them being a right line running in a north-easterly and south-westerly direction, made partition of the farm by mutual releases, establishing, as the dividing line between their tracts in severalty, a line commencing on the boundary line between the lots at or near the south-east corner of the Common lot, and running in a general westerly direction, but very irregularly, at some points on one side and at others on the other side of the dividing line of the lots, to a point in the Common lot about midway between its east and west side lines, and at some considerable distance north of it; and from that point the line is described as running “ south 35° east, so far that a point 55° west shall leave one half of the farm on the south-easterly side of the line and the other half on the northwesterly”— the line, as indicated by the two last courses, running across the boundary line between the lots some distance into Lot 14, and cutting off a portion of that lot, as lying on the north-westerly side of the line of partition ; the father by the releases taking in severalty the part of the farm lying on the north-westerly side of this line of partition, and the son that part lying on the south-easterly side of said line. On the same day that the partition was made, the father executed his last will and testament, in and by which he devised to his two daughters each one fourth part of his homestead farm, with half of all his buildings, adding, “ the one half of my farm which I have given to my two daughters I do hereby set off, and is bounded as follows,” &c.; then describing a line coincident with the line of partition, from its commencement to the point midway between the side lines of the Common lot, and from that point describing a line lying wholly in the Common lot, and running to its west side line, the last course being given. thus : “ thence running north 34° west, so far as shall contain one half of my homestead farm in quantity;” and adding, “provided the above-mentioned line shall not contain one half of my farm as above, my will is, and I do hereby order, that my daughters shall have as much off from the north-westerly end of my land in Lot 14 as shall complete said one half. My meaning is, that my daughters shall have that part of my farm that lies north-west of said line.” By the line thus described in the will, two parcels of land lying in the south-west corner of the Common lot, lying on the north-west side of the line of partition, are cut off and left on the south-east side of the line described in the will. In describing the line in the will the testator uses the expressions, “ My barn-yard fence;” “ my part of the cellar;” “ my part of the dwelling-house ;” “ the fruit trees I own.” By the will the testator devised to the son all the residue of his estate, real and personal. Held, that the testator intended to devise to his daughters, as tenants in common, a definite and certain tract of land, equal in quantity to one half of that part of the farm released to him by the son, and not one half in quantity of the whole farm as it was before the partition ; that hy giving effect to it according to that intention, no rule of law was violated; that no part of the land lying in the Common lot on the south-east side of the line described in the will, passed to the daughters, nor any of the land lying in Lot 14, except such parcels as were cut off by the irregularities in that part of the line established upon the partition between the father and son, which lies between the point of its commencement and the point midway between the side lines of the Common lot; it being proved that the land lying on the north-west side of the line described in the will was sufficient in quantity to make up one half of the land held by the father in severalty after the petition.</p>

Writ op Entry. The premises claimed are a part of lot No. 97 in the 2d division in Barnstead, containing about forty acres, more or less, of wild land which has never been improved or enclosed by fences. The plaintiff claimed title by devise from Benjamin Winkley, of “ thirty-six acres, more or less, in lot 37, in second division in Barnstead, being same I purchased of John Peavey,” and in proof of title in said Winkley, offered: 1.

Trespass, to recover twenty-five hundred yards of cloth and six boxes, taken and carried away the 14th of November, 1851, as the property of James Briggs & Brothers, by virtue of writs of attachment against said firm, tried at the February term, 1854, for this county. The plaintiff proved that on the 18th day of October, 1851, eleven writs of attachment against said firm were placed in his hands as deputy sheriff.

Indictment, for an assault and battery, setting forth that the respondent, on the 12th day of September, 1854, at Sandwich, in the county of Carroll, “ with force and arms in and upon one Josiah C. Evans, did make an assault, and him, the said Josiah C. Evans, did then and there beat, bruise, wound and ill treat, and with a certain, which he, said Hilton, then and there held in his right hand, inflicted a grievous wound on the right leg of the said Evans, whereby the said…

Case, for slander. The writ was dated March 11,1850, and contained two counts.

Assumpsit on a policy of insurance against fire, issued to tbe plaintiff by the defendant, June 15, 1850. On a sale of the property insured to one Davis, tbe policy was assigned to him by tbe plaintiff, and Davis, to secure the purchase money, mortgaged back the premises, and reassigned the policy to the plaintiff. The assignment and reassignment were made with the assent of the defendant, on the 23d of May, 1852.

<p>The want of two sureties on a recognizance entered into upon an appeal from the judgment of a justice of the peace, in a civil cause, is merely an irregularity in the proceedings, and not a jurisdictional exception.</p> <p>The provision of the statute requiring sureties on such recognizance, is for the benefit of the appellee, and may be waived by him.</p> <p>The objection may be considered as waived if the appellee appear at the term of the court of common pleas at which the appeal is entered, and the cause be continued without a motion to dismiss.</p> <p>The plaintiff proposed to the defendants, they being selectmen of the town, to purchase a house owned by the town, with the intention to repair and occupy it as his dwelling-house. The defendants, without authority from the town, verbally agreed to sell the house to the plaintiff at a stipulated price, and thereupon the plaintiff took possession of the house and proceeded to make repairs. While the plaintiff was engaged in making the repairs, one of the defendants addressed to him a letter, advising him “to proceed no farther;” and thereupon the plaintiff suspended the work and removed from the house. The town shortly afterwards appointed an agent to make sale of the house, who notified the plaintiff that he could have it upon the terms agreed on by the selectmen ; but the plaintiff declined to take it, saying he had changed his plans, and had procured another tenement. The house was then sold to another party for a larger price than that stipulated by the defendants, and the amount was paid into the town treasury. — Held, that there was no implied promise by the selectmen to pay for the repairs made by the plaintiff, or to account for the sum received for the house beyond the stipulated price, and that no action could be maintained by the plaintiff against them on account thereof.</p>

Debt, to recover the amount of the defendant’s premium note for two hundred and forty dollars, dated February 19, 1849. The defendant owned a tannery, in which steam was employed to heat the liquor used in that business; and the note in suit was given to the plaintiffs upon his obtaining an insurance on the tannery against loss by fire.

Trespass, for an assault and battery upon the plaintiff, on the 26th day of June, 1849. The writ was dated on the 29th of June, 1849.

<p>After a town has acquiesced for more than twenty years in the doings of their selectmen in laying out a highway, they are estopped from saying that the road was not legally laid out.</p> <p>The selectmen of the town of B. made a return of a highway in that town in 1826, without any written petition therefor. The town soon after made the road, and kept it in repair for more than twenty years, and the town and public generally used it during the whole time. — Held, that the town were estopped from saying that the road was not laid out agreeably to statute law.</p>

<p>The beneficial contracts of infants are voidable only, and may be ratified by them, after arriving at maturity, by express agreement, or by positive acts, equivalent thereto.</p> <p>Mere inaction can never be construed into a ratification of the contract of a person’s minority, unless, after arriving at full age, he shall be in possession, by virtue of such contract, of something valuable, the retention of which may properly be regarded as an election to appropriate the results of the contract to his own personal and pecuniary benefit.</p> <p>A contract for the insurance of his property against loss or damage by fire, is not a contract for necessaries which will bind the infant absolutely.</p>

Assumpsit. The writ was dated April 8, 1853, and contained three counts. The first was a special one, alleging that the defendants were commission merchants at San FranciscQ, California ; that the plaintiff, in March, 1850, sent to them 1340 pounds of lozenges to sell for him, and make remittance for the same, after deducting freight and commissions ; that the defendants received the same, and sold them, and had refused to remit the proceeds.

The facts in this case, so far as they are material to the decision of the court, are stated in the opinion, delivered by

<p>The judgment for the plaintiff, upon demurrer to a plea in abatement, if there be an issue of law, is not final, hut merely that the defendant answer over.</p> <p>Upon error to reverse a final judgment, erroneously rendered for the plaintiff upon demurrer to a plea in abatement in the Court of Common Pleas, if an execution has been issued and collected, the former judgment will he reversed the proper judgment ordered upon the pleadings, the case remitted to the Common Pleas for further proceedings, and a writ of restitution awarded for the amount of the execution issued in the Common Pleas, and costs thereon, as paid, with interest, as damages, and the costs of the proceedings in error.</p>

<p>Where the number of shares into which the capital stock of a corporation is divided is fixed by the charter, and that provides that the directors may make equal assessments upon all the shares, no valid assessment can be made against a subscriber for shares until all the shares are taken, unless he in some way waives the provisions of the charter.</p> <p>The defendant subscribed for one share in the plaintiff corporation, and agreed to pay the same in such assessments as the directors for the time being might order. The act of incorporation fixed the number of shares at ten thousand, and before that number was subscribed for the directors made sundry assessments to nearly the amount of the share. — Held, that, the shares not being all subscribed for, the assessments could not be recovered.</p>

This is a petition for a review, or new trial, in an action brought by Rogers, the petitionee, against the petitioner, in the Court of Common Pleas, in which judgment was rendered at the March term, 1852, in favor of the petitionee against the petitioner upon an agreement, signed by the parties and filed in the case, as follows: “ Reynolds 8.

Assumpsit, for goods sold. The case was committed to an auditor, who made the following report: The plaintiffs’ claim consisted of a specification hereto annexed, containing seventy-five items of goods sold and delivered, numbered from one to seventy-five inclusive, and amounting to $1812.65, with an additional item of interest, $52.34, as stated in said specification, with two items of credit, as stated in said specification, amounting to $94Q.17 — leaving a balance claimed…

<p>One who buys property with notice of an existing right of another, will be deemed to have purchased in bad faith, and fraudulently, and can only hold subject to that right.</p> <p>One who purchases real estate, of which a third person is in the open, exclusive, and continuous possession, will be held to have constructive notice of the title of such third person.</p> <p>This principle does not apply to unimproved lands, nor to cases where the possession was ambiguous, or liable to be misunderstood.</p> <p>Where the owner of land conveyed the timber and wood growing upon it, taking back a defective mortgage which was not recorded, it was held, that the constructive possession of the seller, as owner of the land, was not notice of his claim to the timber and wood, as to a party purchasing upon the faith in his bill of sale.</p> <p>An entry upon the land, and taking formal possession of the wood and timber, is not notice to a purchaser of the mortgagee's claim.</p> <p>It is not material if the mortgage, of which a purchaser has notice, is defective against a bona fide purchaser. If it is valid between the parties to it, it will be so against him.</p> <p>No person can be regarded as a bona fide purchaser, until he has paid the consideration of his purchase.</p>

<p>Under the provisions of the statutes of this State making stockholders liable for the debts of private corporations, stockholders are, in general, liable only for debts of the corporations contracted while they are stockholders.</p> <p>Where the statute provided (sec. 1, chap. 147, Comp. Stat.) that the stockholders and officers of all corporations having for their object a dividend of profits among the stockholders, shall be personally liable for the debts and civil liabilities of such corporations, and the defendants became stockholders in the C. V. Railroad in April, 1850, and so continued up to the time of the commencement of the suit — Held, that they were not liable for a debt of the corporation contracted before they became stockholders.</p>

Petition por a Mandamus, to compel the petitionee to furnish the petitioner with copies of certain records made by the petitionee, as justice of the peace for the county of Hillsborough, filed July term, 1855.

<p>The facts in the case sufficiently appear in the opinion of the court.</p>

Trespass, for breaking and entering the plaintiff’s land in Goffstown, and cutting and carrying away his wood and timber, tried at the October term, 1854.

Writ oe Entry, to recover a tract of land in Keene, on winch the court house now stands. Plea, mil disseizin. It was admitted that the land once belonging to Josiab Richardson, who died seized of the premises, leaving one child, Rebecca, the wife of Joseph Dorr, his heir at law.

Assumpsit against A. Farwell and H. Scott, on a joint and several promissory note, payable to H. Buffum, or bearer, on demand, and interest, dated April 6,1854.

Petition for a new highway in Dublin and Marlborough. The petition was referred to the road commissioners, who, at March term of the Common Pleas, 1855, made their report, laying out the road, and at that term the petition was recommitted. At the September term, 1855, a report was made, signed by two only of the three road commissioners.

The declaration in this case contains three counts, as follows : 1.

This is an action of debt upon two bonds, so called, of the defendants.

Assumpsit, on a promissory note signed by the defendant’s intestate, and described in the declaration, and dated February 13, 1847, at'Ashburnham, Massachusetts, where the payee then resided and has ever since resided. Plea, the general issue, with a brief statement, that the defendant’s intestate died April 15, 1853, and that the cause of action did not accrue at any time within six years next preceding the said 15th day of April, 1853. An issue was joined to the court.

Case for slander, in utterinl of and concerning the plaintiff, who was a single woman, and ole Robert Geddis, at Fitzwilliam, scandalous and defamatory worlls : “ They (meaning 'the plain-much as any man and his wife.” “ She (meaning the plaintiff) has had two gr three little ones hy him, (meaning the said Geddis ;)” meaning that the plaintiff had been guilty of repeated acts of fornication, and that the plaintiff had been the mother of two or three bastard children, with…

Writ op Entry, dated January 15,1853, brought to recover the possession of a certain piece of land in the town of Sunapee, being part of lot No. 6, in the 7th range of 85 acre lots in said town.

<p>Appeals of land owners from the assessment of damages to them by road commissioners, in laying out highways, are to be taken and entered at the term of the Court of Common Pleas, holden in the county next after the acceptance of the commissioners’ report establishing the highway.</p>

<p>In actions of slander, if the words laid in the declaration must have been used in a peculiar sense, or with reference to some particular subject in order to render them actionable, there must be a colloquium, or averment of the subject matter of the conversation, or the peculiar use intended of the words employed, or the action cannot be maintained, even after verdict, upon motion in arrest of judgment.</p> <p>Where there is no colloquium, the plaintiff must be held to allege that the words spoken were used in their natural and ordinary signification, and that they must import a charge of crime, or some punishable offence, to render the speaking of the words actionable of itself.</p> <p>Although all the words spoken need not be set forth, enough must be set forth to show the sense and connection in which those set forth were used; otherwise there will bo a variance, even if the precise words laid are proved to have been spoken.</p> <p>Where the words set forth, in their ordinary sense import a charge of crime, if they are proved to have been so spoken, in connection with other words, as to rebut the idea of criminality, there is a fatal variance.</p>

Bill in Equity. The following facts appear from the statements of the bill: The Portsmouth and Concord Railroad, a corporation… Held: or which may hereafter belong to, or be held, by said corporation; together with the locomotive engines, passenger, baggage, dirt, freight and hand cars, and all the other personal property of said corporation, as the same now is in use by said corporation, or as the same may be hereafter changed and renewed by said corporation; to…

<p>Case, to recover the value of ten bags of wool lost.</p> <p>The declaration originally contained but one count, in which it is alleged that the defendants, on the 2d of November, 1850, being common carriers of goods for hire, in consideration that the plaintiff, at the request of the defendants, delivered to them the wool in question, promised to take care of, safely convey from Exeter to Boston, and deliver to the plaintiff said wool for a reasonable reward, within a reasonable time; yet the defendants, having accepted the wool for that purpose, did not carry the same to Boston, and did not deliver the same to the plaintiff, though a reasonable time therefor hath elapsed; and though after-wards, to wit, on the 9th of November, 1850, requested thereto; but so negligently conducted themselves with regard to the wool, that, through the carelessness and negligence of the defendants, it was lost.</p> <p>The plaintiff had leave to amend the declaration, and filed four additional counts, which were allowed, saving to the defendants all exceptions on account of the amendment.</p> <p>The first amended count does not allege that the defendants were common carriers, but sets out the undertaking of the defendants to carry the wool safely to Boston, and there keep it securely for a reasonable time after its arrival, and then to deliver it to the plaintiff on request; and a failure to fulfil the undertaking, alleging the negligence of the defendants, and the consequent loss, as in the original count.</p> <p>The second amended count is in all inspects similar to the original, except that it sets forth the undertaking of the defendants, and their failure td fulfil, as in the first amended count.</p> <p>The third amended count is in all respects like the first, except that it sets out that the wool was to be delivered to T. B. Townsend & Son, instead of the plaintiff; and the fourth is in all respects like the third, except that it alleges that the defendants wmre common carriers, and kept a warehouse in Boston for storing goods conveyed upon their railroad, and that the wool after its arrival in Boston was to be kept therein for a reasonable time, and then delivered to Townsend & Son, on request.</p> <p>It was proved on the trial that the wool was delivered to the defendants at Exeter, on the 2d of November, 1850, in bags, directed to Townsend & Son, Boston; that on the 4th it was carried over the defendants’ railroad in their freight cars, arriving at the freight depot of the defendants in Boston at some time from about one to three o’clock in the afternoon; that, in the usual course of business, from two to three hours were required to unload the freight from the cars in to the depot or warehouse, and that the gates were shut at five o’clock, so that no goods could be removed therefrom after that hour until the next morning. It was also proved that on the night of the 4th the warehouse and most of its contents were consumed by fire, and the evidence introduced by the defendants tended to show that the wool was destroyed by the fire.</p> <p>It was contended by the defendants that the wool had been removed from the cars and placed upon the platform of the warehouse, separate from other goods, and ready to be taken away by Townsend & Son, or the plaintiff, previous to the fire, and that these facts, in connection with a printed notice, offered in evidence by the defendants in order to restrict their carrier liability, which they had made public, and which they claimed had been brought home to the knowledge of the plaintiff, exonerated them from their liability as common carriers. The notice was as follows:</p> <p>“ Articles of freight must be taken away within twenty-four hours after being unladen from the cars, on arriving at their place of destination — the company reserving the right, if they see fit, of charging storage after that lapse of time. The company will not hold themselves responsible as common carriers for goods, after their arrival at their place of destination and unloading in the company’s warehouse or depot.”</p> <p>The plaintiff contended that the wool had not been thus unladen and placed upon the platform previous to the fire, and that he had no knowledge of the printed notice previous to the wool being sent over the road. He also contended that if these facts were not so, nevertheless, the responsibility of the defendants as common carriers did not terminate until such a time had elapsed after the wool was taken from the cars and placed in the warehouse, as would enable Townsend & Son, with the exercise of reasonable diligence, to take it away.</p> <p>The plaintiff also claimed that if the defendants’ liability as common carriers had terminated previous to the fire, the wool was in their custody as warehouse-men, and was lost through their want of ordinary care and prudence, and that they were liable for it on that ground.</p> <p>It was also made a question by the plaintiff, whether the defendants had not sold a portion of the wool and received a certain sum therefor.</p> <p>By consent of the parties the jury were directed to return answers to five questions submitted to them in writing; it being understood that, upon the determination of such of these questions as might be material, a general verdict was to be entered in accordance with the finding of the jury upon those questions, subject to the opinion of this court. The questions were as follows :</p> <p>1. Was the wool carried over the road and then removed from the cars to the platform of the freight depot in Boston, and separated from other goods before the fire ?</p> <p>2. Was it so carried and removed from the cars a sufficient time before the fire to enable Townsend & Son to obtain possession of it by the exercise of reasonable diligence on the part of the plaintiff and of Townsend & Son ?</p> <p>3. Did the wool fail of being delivered to Townsend & Son by reason of the want of ordinary care and prudence on the part of the defendants ?</p> <p>4. Was any portion of the wool sold by the defendants ?</p> <p>5. Did the plaintiff have any knowledge of the printed notice before the wool was sent over the road ?</p> <p>The plaintiff’s counsel in his argument to the jury called their attention to the first paragraph in the printed notice, as an admission by the defendants that twenty-four hours was not an unreasonable time for,the removal of the wool; and the court instructed the jury that it was competent evidence upon the second question, even if the plaintiff had no knowledge of the existence of this paper when the wool was sent. After the verdict was returned, and not before, the defendants excepted that these instructions were given without instructing the jury further, that if they treated the first paragraph in the notice as an admission, they were also to consider with it the succeeding paragraph.</p> <p>The jury disagreed upon the first question, returned an answer in the negative to the second, in the affirmative to the third, and in the negative to the fourth and fifth, and a general verdict was thereupon entered for the plaintiff, which the defendants moved to set aside.</p> <p>Yarious questions are raised by the case upon exceptions taken to the rulings of the court upon evidence, and their instructions to the jury upon the third question; which, however, are unnecessary to be stated, as the case is decided upon other grounds.</p> <p>The amended counts are not admissible, being for other and new causes of action, and founded upon different and independent contracts. Bishop v. Baker, 19 Pick. 517 ; Duncan v. Sylvester, 13 Maine 417 ; Lombard v. Fowler, 25 Maine 308 ; Baton v. Ogin, 2 Maine 46.</p> <p>In Pierce v. Woods, 3 Foster 530, Bastmafe, J., states the rule to be that the amendment must be consistent with the original declaration, and for the same cause of action ; and in Stephenson v. Mudgett, 10 N. H. 341, Parker, J., says amendments are allowed only to cure an imperfect or erroneous statement of the subject matter upon which the action was in fact founded.</p> <p>The defendants were common carriers only, and were sued as such, and by law were not liable for the goods after they were unloaded at the Boston depot. Norway Plains Qo. v. B. M. Bailroad, 1 Gray 263 ; a case which grew out of the fire in question in this action. Thomas v. B. Pro. B. B., 10 Met. 477, the principles of which are adopted in 7 Foster 93.</p> <p>The use made of the notice requiring goods to be removed from the depot within twenty-four hours, and extending the common carrier liability for that period, was illegal. By the law, when the goods were landed the defendants’ liability ceased, and the manifest object of the notice was to compel people to remove their goods from the depot within twenty-four hours, or subject themselves to a charge for storage ; and yet the court and the plaintiff’s counsel both perverted the notice, and urged it upon the jury as an admission of the defendants that their liability as carriers extended twenty-four hours from the time of unloading.</p> <p>The jury have found that the goods were not removed from the cars a sufficient time before the fire to enable the consignees to obtain possession of them by reasonable diligence. We contend that till this occurs the defendants remain liable as common carriers. If we are correct in this, we are entitled to judgment without regard to the question of negligence. If the goods were in the defendants’ hands as common carriers, then the conclusive presumption of the law is, that they were lost by their negligence, unless the exceptions to the rule appear, to wit., that they were lost by the providence of God, &c.</p> <p>The question when the liability of a railroad as a common carrier ceases, is new in this State.</p> <p>In Massachusetts it was decided in the case, Norway Plains Co. v. B. M. Railroad, that such liability ceases when the goods are discharged from the cars on the platform at the place of destination. We contend that the true rule is, that the liability continues until the consignee, by reasonable diligence, may obtain them. The true rule is to be deduced from the established principles of the common law. As Ch. Jus. Shaw well remarks, “ although steamboats and railroads are but of yesterday, yet the principle which governs the rights and duties of carriers of passengers, and those which regulate the rights and duties of carriers of goods, and of the owners of goods carried, have a deep and established foundation in the common law.”</p> <p>What, then, is the rule fairly to be deduced from the common law ? With great deference to the opinion of the distinguished judge of one of the most learned courts in New-England, we cannot help feeling that his views on this point are modified by a desire to establish a convenient rule for the corporation. The learned judge says that a different view “ would greatly mar the simplicity and efficacy of the rule that delivery from the cars into -the depot terminates the transit.” The question seems rather to be what is the rule, than what would mar the simplicity of a rule which we assume to exist. Common carriers by wagons and the like, are bound to deliver goods to the consignee, and remain liable till such delivery. But it is said this is impracticable in the case of railroads. Ships, on the other hand, it is said, finish their duty when they deliver goods at the wharf; and, as if there could be no other intermediate mode of terminating the liability of railroads as carriers, the Massachusetts court elect to place them on the same footing as ships. We think a rule more simple and more just; more in accordance with common law principles, may be found than either. Why were common carriers ever held to insure the safe delivery of goods ? The answer to this question will indicate the true rule applicable to this new class of common carriers. “ The rule,” says Ch. Kent, “ is intended as a guard against fraud and collusion.” 2 Kent’s Com. 579, 2d Ed. “ The law presumes . against the public carrier,” &c. “ If it were not for such a rule the carrier might contrive, by means not to be detected, to be robbed of his goods, in order to share the spoils.” Ib. 603. But the rule as to carriers by water has not been adopted by the Massachusetts court. There must be something equivalent to a delivery, even by carriers by water.</p> <p>In Ostrander v. Brown, 15 Johns. 39, it was held in New-York that placing goods on the wharf, without notice to the consignee, is not a delivery so as to discharge the carrier, even though there was a usage to deliver goods in that manner. Cited with approbation in 2 Kent 605. And the same distinguished jurist, 3 Com. 215, states the rule thus : “ The general rulé is that delivery at the wharf (where there are no special directions to the ccntrary) discharges the master.” “ But the very reasonable qualification of the rule is, that there must be a delivery at the wharf to some person authorized to receive the goods, or due previous notice must have been given to the consignee of the time and place of delivery ; and the master cannot discharge himself by leaving them naked and exposed at the wharf. His responsibility will continue until there is actual delivery, or some act which is equivalent, or a substitute for it, unless the owner of the goods, or his agent, had previously assumed the charge of the goods, or at least until the consignee has had notice of the time and place of delivery, and the goods have been duly separated and designated for his use.”</p> <p>Now, in analogy with this rule, and according to the reason on which the liability of carriers is founded, can a railroad company be held discharged without actual delivery ; without notice of the arrival — which is assumed by Ch. J. Shaw to be necessarily irregular as to freight trains — and without the possibility that the consignee by any diligence can obtain his goods ? If the rule as to wagoners be hard, why not modify it according to the rule applied to water carriers ? What reason for the rule has ceased to exist ? Are corporations more honest than individuals ? Are their servants and agents beyond the suspicion of fraud and corruption ? May they not plunder the goods at the depot in the night as well as in the cars in the day ? Are they more secure from other thieves and other injury, thrown out upon the platform at midnight, in rain and tempest, than in a car on the passage ? It would seem that the whole reasons of the original rule were perverted and reversed, if it is to be held that railroads are carriers and insurers of the goods while locked up in their cars, and are to be free from liability when the goods are exposed on the platform to every danger. In this very case, such is the difficulty of tracing the goods after they were delivered to the railroad, that the jury were unable to agree whether they were removed from the cars, and set apart or not, and the first question was not answered.</p> <p>The instructions of the court as to the published rule of the defendants, that freight must be taken away within twenty-four hours, were correct, though immaterial as the case stands. The printed paper containing this regulation was offered in evidence by the defendants to restrict their liability as common carriers. Of course whatever other rule, material to the case, was contained in the paper was open to the plaintiff to argue, and was competent evidence.</p> <p>We contended that we had not a reasonable time and opportunity to remove the goods. What is a reasonable time must be a mixed question of law and fact, and the opinion and undertaking of the company, we think, as indicated by its printed regulations, was competent evidence. We might well contend that by this regulation the company had extended its liability to twenty-four hours beyond the arrival, if it were not so great without it. The company reserve the right “ to charge storage after the lapse of that time .” This is surely a distinct negation of any right to payment for storage during the twenty-four hours. What does it mean except that the company will be liable in its first capacity until twenty-four hours after arrival, and then will assume another capacity of warehouse-men ? They are first common carriers; afterwards, after twenty-four hours from the arrival of the goods, warehouse-men for hire. Is there an intermediate state — a sort of purgatory — where they are neither one nor the other, during which the owner cannot have his goods, and the company have full and exclusive control of them, with no liability ? How many contracts does the owner make with the company when he silently delivers goods to its agents ? Into how many shapes does the Proteus-like monster resolve itself 1 It is now a common carrier, again a warehouse-man, and then it claims a third indescribable shape between' the two — neither frog nor tadpole — but a sort of creature without neither body nor soul, and, above all, with no liabilities. I think there can be no such transition state, and that under this printed regulation the defendant is a common carrier till twenty-four hours after the transit ends, and then is a warehouse-man.</p> <p>But if it be an open question, what is a reasonable time, the company’s own opinion, as published, may well be considered by the jury under the instructions of the court.</p> <p>But the exception here was not that this was not evidence, but that if the jury so regarded it they should have been instructed to regard the other rule of the company, embraced in the second paragraph of the printed notice. The exception was taken after verdict, when it was too late to be taken.</p> <p>As to the amendment, it is immaterial, if the defendants are liable as common carriers. If not, the new counts come strictly within the rule as to amendments. They are consistent with the original count, subject to the same plea, and such that they might originally have been joined with it. They are for the same cause of action, and introduce no new or additional demand. Q-oddard v. Perldns, 9 N. H. 490. The distinction between the original and amended counts is, that in one of the latter the defendants are not in terms described as common carriers, and in another the promise is alleged to be to deliver to Townsend & Son instead of the plaintiff, as alleged in the original. These variations are scarcely more than matters of form; but amendments in substance may be made to any extent not changing the cause of action. The substance of each count is the same, that the defendants took the goods, promised to take care of them, and deliver them in Boston, and failed to do so. The variation in the counts was designed to meet the plurality of forms and legal existences into which the defendants by turn transform themselves, under the same implied contract with the plaintiff; at one time common carriers, then for twenty-four hours not quite common carriers, nor yet warehouse-men, and finally warehouse-men to all intents. The second count alone omits to describe the defendants as common carriers, in express terms, and that sets forth the liability in general terms to meet the views of the court, whatever the liability might be. It is perfectly consistent with the other count, does not describe the defendants in any capacity, but simply alleges the contract according to its terms, without attempting to characterize it according to its legal effect, but leaving the court to say as to that point.</p>

<p>If an officer, by direction of the creditor, take any measures which are calculated to prevent competition at the sale of property taken on execution, and the purchaser assents, the sale will be set aside as fraudulent.</p> <p>"Where a railroad corporation, on settlement with a contractor, agreed to pay him a certain sum in shares, or bonds of the road, at his election, the amount, however, to be retained by them as indemnity against certain liabilities to which the road was subject, and they made out and delivered to the contractor a certificate of so many shares, with an agreement indorsed to exchange them for bonds, at his election, and these certificates were then returned to the railroad as such indemnity — held, that the corporation was bound to deliver the bonds according to their agreement, notwithstanding the treasurer of the road had entered the shares on their records as the property of the contractor, and they had in consequence been sold on execution as his property.</p>

<p>As a general rule, if an obligee does an act to the injury of the surety; or, by a binding agreement between himself and the principal, varies the terms of the obligation, or enlarges the time of performance, without the consent of the surety, the surety will be discharged.</p> <p>The plaintiff agreed to let one ET. have $10,000 in cash, and to convey to him a tract of land for $10,000 more, and to take ET.’s two notes therefor, payable in two years, and the pledge of certain railroad shares as collateral security, provided ET. would also furnish him the bond of responsible men to take the shares and notes at the expiration of the two years, and pay such sum as should remain unpaid upon the notes. The defendants, with the knowledge of the plaintiff, executed the bond, to be delivered to him upon the terms above specified. Afterwards, by an agreement between the plaintiff and ET. without the knowledge of the defendants, the plaintiff let N. have only $8,317, the balance being deducted as two years’ interest on one note, and one on the other, and took back a mortgage of the land. — Held, upon demurrer to a plea setting forth the above facts, that the undertaking of the defendants was collateral to that of ET., and that their liability to pay the notes was conditional upon his failure to pay the same. — Held, also, that the new contract between the plaintiff and ET. was a fraud in law upon the defendants, and discharged them from their covenant.</p> <p>Statutes against usury, which apply only to the remedy, can he enforced in those States only where the contract is made.</p> <p>Where a contract was made in Massachusetts, alleged to be usurious by a statute of that State, which provided that a deduction of three fold the amount taken should be made from the sum found due, and a plea of usury under that statute was interposed — Held, that the statute applying to the remedy only could not be enforced in this State.</p>