Volume 33 — New Hampshire Reports

Assumpsit, to recover the sum of $1200, insured by policy issued by said company, dated July 29, 1850, to one Israel Gates, upon his dwelling-house, against loss or damage by fire for six years, and made payable, in case of loss, to the plaintiff. Plea, the general issue.

<p>A deed conveying land in fee simple contained a reservation in these words: “ Reserving all the right, title, and interest in and unto the above-named land and buildings for and during my natural life.” — Held, that the reservation did not give the tenant for life the right to cut down and sell wood and timber.</p> <p>AYhere the complainant, in a bill for an injunction to restrain waste, claims title under a deed from the defendant, the defendant cannot, in defence to the bill, show by parol evidence that there was a mistake in the draft of his deed to the complainant.</p> <p>If a tenant for life of a farm have other outlying woodland, he may take all his necessary fuel from the farm, though, when he formerly owned the farm in fee simple, he was in the habit of taking part of his fuel from the outlying woodland.</p> <p>If the owner of a farm sell it in fee, and take back a conveyance for his life, his former practice in the manner of taking wood for fuel is not competent evidence on the question whether he has committed waste in cutting wood and timber.</p>

<p>Assumpsit may be maintained on au award, and, where the submission is by parol, is the most appropriate remedy.</p> <p>It is no defence to an action upon an award made in favor of the plaintiff, after he has made a general assignment of all his property and rights of property, and of action, for the benefit of his creditors, agreeably to the statute, that the suit is not authorized, but disclaimed and discountenanced by the assignee The legal presumption in such case is, that the award was of matters arising subsequent to the assignment. The award is conclusive, unless properly impeached.</p>

Bill in Chancery, in which the. complainant alleges that his father, Robert Ham, deceased intestate, was seized at his death, and for many years prior thereto, of a farm in Portsmouth, which was his homestead; that, about twelve years before his death, the wife of said Robert, and mother of the complainant, died, and for some time thereafter the said Robert lived alone on said farm ; that he applied to the complainant, and requested him to come with his family and live with…

In Equity. The facts, as they appear by the bill and answer, may be thus stated : On and before the 8th of December, 1849, John L. Clindenin was seized in fee of a tract of land in Salem, containing two hundred acres. On that day he executed a mortgage of the whole tract to Betsey Kelly, to secure the payment of four hundred dollars and interest, in one year.

<p>Under the general rule relative to notice to take depositions, an additional day is not required, unless for twenty full additional miles’ travel.</p> <p>An admission by a party, made for the purpose of preventing the attendance of witnesses, will, in case the construction is doubtful, be construed against such party.</p> <p>The admissions of the holder of a note that the maker owed him nothing, are evidence for third persons that nothing is due on the note.</p> <p>On proof that warrants for county taxes cannot he found, evidence that warrants were received, and that the tax was made for the just proportion of the town, is admissible to show the existence and contents of such warrants.</p>

<p>A bond given by a debtor under the provisions of the statute to obtain release from arrest upon an execution on which he was not liable to be arrested, is void, on the ground that the bond, though given in the form of a common law security, as upon a contract between the parties, is in fact a mere statute security, not founded upon contract, but required by law to be furnished as a security to the creditor in place of the arrest, and is consequently void in case no legal arrest is made.</p> <p>Semble that such bond cannot be adjudged void or voidable on the ground that it was obtained in such case by duress, unless the fact be proved by a jury that it was given under actual duress.</p>

Bill in Equity. The bill stated that on the 5th of January, 1850, the plaintiffs entered into a written contract with the Portsmouth and Concord Railroad, by which it was agreed that the plaintiffs should purchase twelve hundred tons of railroad iron, and deliver it to the road on a credit of two years from the delivery; that the railroad should pay the cost and charges of the iron and ten per cent, commission, within two years ; that the title to and property in the iron…

Indictment, alleging that the defendant, on the 15th day of November, 1853, not being a licensed taverner or retailer of spirits, sold one quart of spirituous liquor to Jonathan Tilton. On trial it appeared that Tilton bought of the defendant one quart of brandy in March or April, 1852: the particular time the witness could not recollect. The defendant objected — 1. That the indictment was barred by the statute of limitations. 2.

<p>Where the same highway is laid out in two towns, the road commissioners hayo no power under the statute to order part of the expense of making the road in one of the towns to be paid by the other town.</p> <p>If the road commissioners in their report laying out a road make such an order, their report will be rejected and the petition recommitted.</p>

<p>It is a general rule in equity that when a replication is put in to an answer, and the parties proceed to a hearing, all the allegations of the answer which are responsive to the hill will he taken as true, unless they are disproved by two witnesses, or by one witness with corroborating circumstances.</p> <p>When, however, the answer sets up affirmative allegations in opposition to, or in avoidance of the plaintiff’s demand, the answer is no proof of the facts stated, and the defendant is hound to establish them by independent testimony.</p> <p>Where a plaintiff filed his bill to re-form a deed given by him, alleging that by the deed one hundred feet were conveyed on a certain street, whereas it should have conveyed thirty feet only, and the defendant in his answer admitted that there was a mistake in the deed, but “ affirmed” that the deed should have been for thirty-two feet — it would seem that the defendant would be bound to establish his allegation by independent evidence.</p> <p>Equity will reform a mistake made in drawing a deed, and may order a party holding land by a conveyance covering by mistake more than was purchased and intended to be conveyed, to release all claim to that which is unjustly held.</p>

Petition to be admitted to take the oath of allegiance and citizenship required by the laws of Congress, and to be admitted to all the rights of a citizen, agreeably to the naturalization laws of the United States — the petitioner being now an alien. It appeared that the petitioner had made and filed his preliminary declaration, as required by law, in the Court of Common Pleas for the County of Mahoning, Ohio, on the 1st day of September, 1852.

Assumpsit. It appeared that the defendant agreed to take all the white oak 'upon the plaintiff’s lot that was suitable for “ ship timber,” upon conditions which need not be stated in this case.

<p>Appeal from the decree of the judge of probate for this county, allowing the account of the appellant as administrator de bonis non of Thomas Tuttle. At the July term, 1854, the case Ayas referred to an auditor, Ayho made his report December term, 1854. From his report and the accompanying papers the facts in the case appear as follows :</p> <p>Thomas Tuttle died October 4,1851, learúng no descendants. His AyidoAT, Christiana R. Tuttle, Ayas soon after appointed administratrix. On the first Tuesday of December, 1851, the estate Avas decreed to be administered in the insolvent course, and a commissioner appointed, Ayho immediately gave the notices required by laAv. The AyidoAy died April 3, 1852, having devised her real and personal estate to the appellee, Ayho administered upon her estate. At the April term, 1852, of the probate court, the appellant was appointed administrator de bonis non of Thomas Tuttle. Upon the petition of the appellee, the appellant Ayas subsequently cited to settle his administration account, and it Ayas finally settled at the January term, 1854, of the probate court, the decree charging the appellant Ayith a balance of $16.154 in his hands as administrator; from Avhich decree an appeal Ayas claimed and taken.</p> <p>The first reason of appeal assigned was, because the judge of probate disallowed certain sums paid by the appellant for insurance of real estate belonging to the deceased. Thomas Tuttle in his life-time had effected insurance on his buildings in the Atlantic Mutual Fire Insurance Company at Exeter. After his death, on the 1st of January, 1852, an assessment of $16.64 was made by the company on his premium note; $13.35 of which was for losses occurring prior to his death, and $3.29 thereof for losses occurring subsequent to that' event. This assessment was duly presented for allowance by the commissioner of insolvency, and was rejected by him. A further assessment of sixty-four cents, for other losses subsequent to the death of the intestate, was made January 1,1853. The administrator paid both assessments, but the judge of probate disallowed him therefor. The auditor alloAved him the sum of $3.93 on account thereof, being the amount of both assessments, so far as they were for losses happening subsequent to the death of the intestate.</p> <p>The second ground of appeal was, because the judge disallowed the private claim of the appellant against the estate of the deceased. It appears from a copy thereof, annexed to the auditor’s report, that the citation for settlement contained no notice of the existence of this claim. The judge declined to allow it, and the auditor coincided with him in opinion.</p> <p>The third cause of appeal assigned, was, because the judge refused to allow the expenses of fencing the burying-ground where the deceased was interred. The appellant had paid $20 towards the expense of fencing in a permanent manner the place where the intestate and some of his relatives had been buried. The estate was fully solvent. This claim was disallowed both by the judge and the auditor.</p> <p>The fourth reason of appeal related to the disallowance of a physician’s bill, for services rendered during the last sickness of the deceased intestate, but was abandoned before the auditor, and is not insisted upon here.</p> <p>The fifth reason of appeal was, because the judge disallowed a portion of the appellant’s charges for his time, attendance, and expenses at probate court. It appeared that in some instances the charge for attendance was reduced by the judge from three dollars to two dollars per day, and in others the charge for expenses was wholly disallowed. The auditor agreed with the judge in rejecting these portions of the appellant’s account.</p> <p>The sixth ground of appeal was, because the judge disallowed some portion of the expenses incurred by the appellant for counsel and attorneys’ fees in the probate court, reducing the amount paid two of the attorneys, and rejecting wholly an item of two dollars, which the auditor finds to have been paid by the appellant to prevent his being sued on what he considered an unjust and wholly unfounded claim. The whole amount thus disallowed was fifteen dollars. The auditor’s report confirms the decision of the judge of probate in relation to these items.</p> <p>The seventh reason of appeal was, because the judge charged the appellant with certain fixtures to the realty of said estate as personal property. The appellant was charged by the judge with two old Franklin stoves, at four dollars each, and two benches, at twenty-five cents, which the appellant contended were so affixed to the real estate as to belong thereto. Both stoves were set in the house of the intestate in chimneys which had no fire-places during the life-time of the intestate, at a time when the chimneys were rebuilt or remodelled. One in the barroom was set on brick work, without legs, with a very short funnel, bricked round in the chimney, and weighed about three hundred pounds. The auditor finds it doubtful whether it could be removed without disturbing the brick work. The other, in the dining-room, stood on legs, weighed about one hundred and fifty pounds, had a short funnel passing into the chimney, and might be removed without disturbing the brick work. The auditor charges the appellant with the last stove, and also with the benches, which did not appear to have been in any way affixed to the realty.</p> <p>The eighth reason of appeal was, because the judge charged the appellant with personal property not belonging to the deceased, and which never came to his hands as administrator. The auditor finds that two turkeys, belonging to the deceased, after his death went to the house of Daniel Tuttle, and there remained several months, when he disposed of them. It did not appear that the appellant ever had them in his possession, or ever called on Daniel Tuttle for them. The judge charged the appellant with fifty cents as the value of the turkeys, and the auditor concurred in this judgment.</p> <p>The auditor permitted the appellant to testify as a witness in chief before him, in regard to his claims against the estate, arising after the decease of Thomas Tuttle, and as to certain articles, not inventoried, with which he had been charged by the judge of probate, against the objection of the appellee. In testifying in relation to his charges for attending probate court, the auditor allowed the witness to refresh his memory as to the times of such attendance, by looking at a memorandum which he testified was made by him at or about the several dates of his attendance, and which he knew to have been correctly made, and to be true ; whereby he was enabled to swear positively to the times of his attendance. The appellee objected to this course of the auditor, in thus permitting the witness to refresh his memory by examining the memorandum.</p>

<p>In an action by the husband to recover for the services of his wife, the defence set up was that the plaintiff’s wife was supported in the defendant’s family, where she rendered the services, on a contract that nothing was to be paid for them beyond her support, and it appeared that the wife made such a contract —Held, that the fact of the husband’s living separate from the wife, without making provision for her support, might be shown as a circumstance tending, with other evidence, to prove his assent to the contract:</p> <p>That a general settlement of accounts between the parties, made before the services sued for were rendered, in which nothing was allowed or demanded for the wife’s services, performed before the settlement, was competent evidence tending to prove that the plaintiff knew his wife worked on such a contract, and assented to it:</p> <p>That if the wife, up to the time of the settlement, worked for her support only, and continued afterwards to work in the same way, without a new contract, the jury might presume that she continued to work on the terms of the old contract.</p> <p>The statements of the wife, made in the execution of her agency for the husband, are evidence against him, as in the case of other agents ; but her statements made afterwards respecting the subject of the agency, are not admissible as against him.</p>

Covenant broken, upon an agreement set forth in the case as reported in 8 Foster 471. The trial was had upon the same pleadings as in that case, except that an issue of fact was joined upon the fourth plea — the issues upon the whole pleadings being: 1.

Trover, for ten bundles of pressed bay. Plea, the general issue. The hay in question was a portion of a lot which grew on the Durham town farm in the summer of 1851.

<p>A party who deposits money with another, to he appropriated for the benefit of a third person, being under no legal obligation so to appropriate it, has a right to countermand, the appropriation, and recall the money at any time before it hag been actually appropriated, or before such an arrangement has been entered into between the depositary and the person for whose benefit it was deposited, as creates a privity between them, and amounts to an appropriation of it. Any thing short of this is immaterial and unimportant, so far as concerns the depositor’s right to recall and recover back his money.</p> <p>The admission of incompetent testimony, although immaterial, may be good cause for setting aside a verdict, where the court can see that it was calculated to excite prejudices, or raise false impressions, and thus mislead the jury.</p>

<p>Matters within the discretion of an inferior court are not subject to revision by the court above, unless transferred to the higher court for their determination.</p> <p>A general release given after the commencement of a suit need not be pleaded puis darrein continuance, unless a plea has been before filed in the action; nor need it be pleaded in bar of the further maintenance of the suit, but may be pleaded in bar generally.</p> <p>Under the act to abolish special pleading, a general release and settlement of an action need not be pleaded specially, but may be set forth in a brief statement.</p> <p>Where the defendant pleaded the general issue, and filed therewith a brief statement, setting forth a general release and settlement of the action since the last continuance, it appeared that no plea had been prevously filed — Held, that, under the statute, the defence might be set forth in a brief statement.</p>

Assumpsit upon a promissory note, signed by the defendant, and payable to the plaintiff or order, on demand, with interest for $160.08, and dated “Boston, June 4, 1851.” ' Plea, the general issue.

<p>Assumpsit for $2,000 money bad and received, and upon an account annexed to tbe writ, for $1,450. Tbe writ is dated February 28, 1856, and tbe action is brought to recover $1,000, alleged to have been received by tbe defendant of Horace Fabyan, September 4,1849, for rent of tbe Mount Washington House and farm in Carroll, in tbe county of Coos. Tbe plaintiff also claims to recover interest on said sum.</p> <p>For the purposes of this case the parties agree upon the following state of facts :</p> <p>On the 28th day of January, 1847, the plaintiff leased to the said Fabyan the Mount Washington house and farm, together with the road leading on to said mountain, for five years from the 20th day of March, 1847, the rent to be paid yearly on the first day of September, in each year, the first two years to be $800 a year, and the remaining three years $ 1,000 a year. In the lease from the plaintiff to Fabyan, Fabyan covenanted to keep the premises in repair. Fabyan thereupon entered and occupied the premises.</p> <p>The title of the plaintiff was a deed of warranty, dated August 21,1844, from Daniel Burnham to the plaintiff, and it is admitted that the title was once in the said Burnham.</p> <p>On the 10th day of May, 1843, the defendant commenced a suit in Carroll county against the said Daniel Burnham and one David Webster, and on the 16th of the same May attached the aforesaid property as the property of the said Burnham, and at the May term, 1848, of the Carroll County Court of Common Pleas, judgment was rendered in said suit against the said Burnham for damages $4,763.32, and costs $114.84, said judgment being rendered May 19,1848. Execution issued thereon, and was committed to Benjamin H. Ohadbourne, a deputy sheriff, May 22, 1848, by whom it was extended upon the land leased (being the property attached) on the 12th of June, 1848, and a part of the land, including the house, set off in full satisfaction of said execution. A copy of the execution and officer’s return may be read on the hearing of this case. Seizin was delivered and accepted on the same day. Another suit was brought by the defendant against the said Burnham and Webster, on the 20th of October, 1846, upon a debt existing prior to the deed from Burn-ham to the plaintiff, in which judgment was rendered at the May term, 1848, against the said Burnham, for damages $4,791.36, and costs $20.58, on which execution issued May 22,1848, and was extended by the same officer on the residue of said demised property, and the same set off June 12, 1848, in part satisfaction of said execution. Seizin was delivered and accepted on the same day.</p> <p>The said Burnham’s right to redeem said lands so set off was seized by said officer upon said last mentioned execution, on the 20th of the same June, and sold at auction on the 31st of July, 1848, to the defendant Dyer, and a deed thereof given by the officer to the said Dyer. A copy of said last mentioned extent and return of said deed from the officer to Dyer may be read at the hearing.</p> <p>After completing said extents, on the 12th of June, 1848, the defendant entered into possession of the lands so set off, and threatened to expel the said Fabyan, and compelled him to attorn and he did attorn to the defendant, and afterwards held under him. On the 3d of November, 1849, the plaintiff tendered to the defendant, at his house in Baldwin, Maine, and left with' him the amount of the first mentioned judgment, with interest, costs and damages, which the defendant declined to receive. On this point either party may read the deposition of F. R. Chase, taken by the plaintiff to be used in this case.</p> <p>The said Fabyan continued to occupy the premises under the defendant, claiming them by virtue of said extents and sale, and on the 4th of September, 1849, he paid to the defendant $1,000 for rent of the demised premises, which, according to the plaintiff’s lease to Fabyan, became due September 1, 1849.</p> <p>The defendant offers to prove that the aforesaid conveyance from Burnham to the plaintiff was fraudulent and void as to the creditors of Burnham, and also that an action is now pending in this court, in the name of the said Fabyan, against this defendant, which action was commenced and is prosecuted by this plaintiff to recover, among other things, about $500 for repairs made to the Mount Washington house in 1849, prior to the 4th of September in that year ; and the defendant contends that whatever he. is liable for, if anything, on account of said repairs, should be allowed in reduction of such damages, if any, as the plaintiff may be entitled to recover in this action. To the admission of this evidence the plaintiff objects. If the court shall be of opinion that such proof is admissible and material upon either of said points, then this case is to be discharged and the action tried by the jury, unless the court shall decide that the action cannot be maintained.</p> <p>The defendant was requested to pay said sum of $1,000, and interest thereon from September 1,1849, before this suit was commenced. This request was at Gilford, in this county, from one to two hours before the commencement of this suit. The defendant then resided and still resides in Baldwin, Maine.</p> <p>The defendant contends that this action cannot be maintained upon the facts stated, and also that the evidence of a fraudulent conveyance and in relation to said repairs is admissible.</p>

Assumpsit upon a policy of insurance, bearing date October 18,1848, insuring to the plaintiff against loss or damage by fire the sum of $2,000, for six years from date, upon the furniture used and kept by the plaintiff in the hotel called the Mount Washington house, in Carroll, in Coos county, which, with the furniture, was consumed by fire on the 29th of April, 1858.

Assumpsit, for a cooking-stove sold and delivered. Plea, the general issue.

Indictment on the statute for keeping a gaming house and gaming place.

Indictment containing two counts. The first charges that the respondents, John W. Rand and Isaac H. Rand, on the 10th day of August, 1855, at Concord, in said county, in the day time, with force and arms, “ a certain building, called a bank, there situate, the same building being the bank of the New-Hampshire Savings Bank in Concord, unlawfully and feloniously did break and enter with intent,” &c., to steal the moneys of the said New-Hampshire Savings Bank in Concord, in the…

<p>Proceedings against trustees of debtors, authorized by and dependent upon the provisions of a statute, must be strictly conformable thereto, or they will be erroneous, and may be reversed on error.</p> <p>Where the principal defendant is not an inhabitant of this State, his property not attached on the writ, no personal service made upon him, and he does not appear and answer, and there is nothing in the hands of the trustees summoned in the suit, no judgment can lawfully be rendered against him, notwithstanding notice of the pendency of the suit may have been given by publication conformably to an order of court.</p> <p>If judgment be rendered in such a ease, it is void; a mere nullity; and may be impeached collaterally or otherwise, forming no bar to a recovery sought in opposition to it, nor any foundation for a title claimed under it.</p> <p>The levy of an execution issued upon such a judgment, and all other proceedings under it, are void.</p>

<p>The court cannot determine what are the limits, or whether there are any limits, of a place, not being a public corporation, described by its name only.</p> <p>If, by its terms, or by reasonable construction, a contract not in writing can be fully performed within a year, although it can be done only by the occurrence of some improbable event, as the death of a person referred to, it is not within the statute of frauds. „,,3 ‘</p> <p>If an agreement, not in writing, can be performed on one side within a year, though it cannot be on the other, it is not within the statute.</p>

This is an action of trespass for an assault and battery, and false imprisonment of the plaintiff, till he paid $17.98.

This was an indictment against the respondent for unlawfully selling spirituous liquor. The indictment contained the following allegation: “ That D. G-.

<p>In order to charge a parent with supplies furnished to his minor child without his direction, some clear and palpable omission of duty on the part of the parent must be shown.</p> <p>A father cannot be charged for supplies furnished a son after he arrives at age, unless there is authority given to obtain the same on his credit.</p> <p>A student at Yale College, the son of B., in this State, procured articles of clothing at New-Haven soon after he arrived at age, and they were credited and charged to him. He had made no purchases of the vendors previous to that time, and his father had never permitted him to procure any thing of any one on his credit. He supplied him with money while in college, with which to pay his bills, to the amount of $1700, and he paid no bills at New-Haven except as he gave his son money to pay them, and it did not appear that the vendors ever knew or heard of the father. — Held, that the father could not be charged with the price of the goods.</p>

<p>To charge a person as trustee on account of repairs, done by the principal defendant, to buildings not the property of the trustee, a special contract or request by the trustee to do the work must be shown.</p> <p>Where a widow held real estate by a deed, the consideration of which was certain notes of the grantor given up to him, which were due to the estate of her husband, but no administration had been taken on the estate, and there was one minor child; and afterwards, certain repairs were made upon the buildings by a son of the widow, but without any contract or request by her therefor — Held, that she was not the legal owner of the premises, and could not, upon such facts, be charged as trustee of the son for the repairs made by him.</p> <p>To charge a trustee as debtor of a principal, it must appear from the disclosure what amount is due, so that the court can definitely determine the sum.</p>

Bill in Equity, in which the following case is stated, so far as the allegations of the bill are material to be considered.

In Assumpsit. The first count is indebitatus assumpsit to the amount of $1,700,00, for the freighting, carrying and transportation of divers goods, wares and merchandise, logs and other lumber, conveyed and transported by the plaintiffs in divers and several quantities, on sundry days and times between May 1, 1853, and September 1,1853, over the plaintiffs’ railroad, at the defendants’ request.

<p>In debt against principal and sureties, a debt due from tbe plaintiff to the principal may be set-off.</p> <p>A notice of set-off is admissible in debt on bond for a penalty. If the set-off does not exceed the penalty, the action cannot be barred, but the set-off will be allowed on the hearing in chancery.</p> <p>If the bond is a security for unliquidated damages, it is still a debt, against which a set-off may be made.</p> <p>A set-off is admissible, though the bond is given to secure the collection and payment of public taxes.</p> <p>If two actions are pending, one against the defendant and his sureties, and the other against him alone, the court cannot require the set-off to be made in one action rather than the other.</p>

<p>Under the provisions of chap. 137, Rev. Stat., providing for the appraisement of damages done by cattle taken in the enclosure of a party, and that the decision of the appraisers shall be final and conclusive, and their report be made to the justice by whom the appraisers are appointed, — the justice is the mere depositary of the report, and no notice of the time and place where the report will be delivered to him is necessary to be given to the parties.</p> <p>Cattle taken in the enclosure of a parly cannot be impounded for a mere nominal trespass; and where cattle were impounded and the appraisers appointed under the provisions of the statute, decided that no damages were done — Held, that replevin against the impounder could be maintained for the cattle.</p>

Indictment, charging the respondents with having unlawfully disposed of one ring, of the value of three dollars, by lottery, to one Charles Flanders, at Concord, on the 9th day of November, 1855. It appeared in evidence that the respondents occupied a shop together on Main street, in Concord ; that Flanders, about the last of October, 1855, went into the shop and purchased a book of William L. Clarke, for which he paid him one dolar.

Assumpsit, upon an account annexed to the writ to the amount of $679,008.06. Also, upon various special and general counts. The writ was dated the 80th day or November, 1855, and was served upon the Boston and Maine Railroad as trustee, on the 4th day of December, 1855.

<p>A traveling trunk, mahogany cabinet-box and breast-pin, are not articles exempted from attachment and execution under the provisions of chap. 184 of the Revised Statutes, as wearing apparel, necessary for the debtor and his family, nor as household furniture.</p> <p>A trunk, locked, containing articles exempted from attachment, may he taken by the officer into his possession, opportunity being given to the debtor to remove from the trunk such articles as are not subject to attachment; and if the debtor decline to remove them they may be retained by the officer until called for by the owner; and if delivered when called for, no action lies against the officer for the taking.</p>

<p>After dissolution of a partnership, one partner cannot, without authority from the others, endorse a note belonging to the firm, and payable to them or order.</p> <p>If one partner, after dissolution, without consideration, fraudulently discharge a promissory note belonging to the partnership, and made payable to them or order, the fraud will not give the other partner authority to endorse the note without recourse in the name of the firm ; and if he undertake so to endorse the note, an action at law cannot be maintained on it in the name of the indorsee.</p>

<p>An express promise to pay part of a note discharged hy proceedings in bankruptcy, revives the note pro tanto.</p> <p>Evidence that the maker, when called upon to testify in a suit upon the note against another party, expressed himself unwilling to testify, declaring that he preferred to pay the note himself, and would pay it; at the same time saying, “ a part of the note has been paid, but enough remains due upon it to pay you” — meaning the holder, who had purchased it for a less sum than appeared to be due upon it — is competent to be submitted to the jury as evidence that the maker expressly promised to pay so much of the amount due upon the note as would reimburse the holder for the sum paid by him for it, and revives the note to that amount.</p> <p>A debt, discharged by proceedings in bankruptcy, is not extinguished as by payment ; but, while it continues under the operation of the discharge, is incapa - ble of being enforced by a suit upon it. The debtor, by an express promise to pay, waives the benefit of the discharge, and the debt is thereby restored to its original condition of a legal liability.</p> <p>A negotiable promissory note, while under the operation of such discharge, may he endorsed, and a new promise, made to the endorsee, may be given in evidence to sustain a declaration upon the note by a subsequent endorsee.</p>

Petition ror Partition. On trial of the issues joined upon the seizin of the petitioners, and upon the sole seizin of the petitionee, the petitioners claimed each one fourth of the land, under a title from Joseph Hemphill, deceased, who lived upon the land in 1781, and died in possession of it in 1782.

<p>The indictment alleged that the respondent, on the 30th day of November, 1854, at, &c., not being licensed to sell wine and spirituous liquor, did unlawfully sell two quarts of spirituous liquor to one Francis I. Smith, contrary, &c.</p> <p>On the trial Francis I. Smith was offered as a witness for the State. Evidence was then introduced by the respondent, showing that said Smith had been convicted of breaking a building, with intent to steal, and sentenced to hard labor in the State prison for the term of five years, and had served out his sentence. A pardon, under the great seal of the State, was then produced by the prosecutor, bearing date after the expiration of the sentence, but in terms applying to the offence before referred to. It was contended that by the pardon the competency of the witness was restored ; while on the other side it was objected that a pardon, granted after the sentence was fully executed, could have no such effect. It was also objected, that the pardon did not purport to be a copy of any record.</p> <p>These objections were overruled, and the witness admitted, and the respondent excepted.</p> <p>The jury having found a verdict of guilty, the respondent moves for a new trial, by reason of said exception.</p> <p>The respondent also moves in arrest of judgment:</p> <p>1. Because it is not alleged in said indictment that said liquors were not imported from some foreign State, country, or port, and contained in the original casks and packages.</p> <p>2. Because in the indictment the allegation is, that the respondent was not licensed to sell wine and spirituous liquors, but it is not alleged that he was not licensed to sell spirituous liquors, which is the offence charged.</p> <p>3. The charge of selling spirituous liquors is not sufficiently certain and specific, inasmuch as the particular kind of spirituous liquors should have been specified.</p>

<p>A declaration in assumpsit that the defendant, on the day of the purchase of the writ, was indebted to the plaintiff in the sum of sixty-dollars, balance of account, and being so indebted, after, to wit, on the same day, promised to pay, is bad, as setting out a promise founded on a past consideration.</p> <p>A judgment rendered in such case upon default, without an assessment of damages upon enquiry by the court, or upon the verdict of a jury, is erroneous, and, upon error brought, the declaration cannot be amended, and the judgment being reversed, no other judgment can be rendered in the action.</p>

Trespass, de bonis, for a quantity of hay, corn, &c., alleged to have been taken on the 8th day of December, 1852, at Wilmot, in this county.

This is an action of trover, for certain goods described in tbe declaration, submitted to tbe court upon tbe following agreed statement: On the 12th of June, A. D. 1854, John S. Colburn mortgaged to Ebenezer Colburn, by his deed, duly executed, and recorded on the same day, all the goods then in and about the store occupied by said John S., conditioned to secure $1200, according to the tenor of his three promissory notes of hand, dated, one ol them February 26, 1854, for the…

<p>The court of common pleas, in case of repeated applications for the discontinuance of the same highway, may refuse to commit the same to the road commissioners, unless it appears that some changes of circumstances have occurred since the last hearing, that the new application cannot he regarded as vexatious.</p>

<p>By the provisions of the charter of the city of Concord, power is conferred upon the city council to make and establish ordinances and by-laws for numerous purposes, specifically set forth in the charter, among which are ordinances and by-laws “ to prohibit the selling or giving away any ardent spirits by any storekeeper, trader or grocer, to be drunk, except by inn-keepers duly licensed and “ to forbid the selling or giving away of ardent spirits, or other intoxicating liquors, to any child, apprentice or servant, without the consent of his parent, master or guardian, or to any Indian •" and this specific enumeration is followed by a provision in the charter that the city council “ may make any other by-laws and regulations which may seem for the well-being of the city, provided they be not repugnant to the constitution or laws of the State.” Held, that the power of the city council to pass ordinances on the subject of the sale of ardent spirits or other intoxicating liquors, is limited to the cases described in the specific provisions; that the general provision is to he construed as referring to other matters, properly the subjects of police regulation than those specifically enumerated; and that, consequently, an ordinance prohibiting the sale of intoxicating liquors to any person without a license from the mayor and aldermen, was unauthorized by the charter, and void.</p>

Trover for five and one half dozen pruning shears. The plaintiff claimed them under a mortgage to himself from Darius Bowers, dated May 11, 1853. The mortgage was of all the goods, wares, effects, merchandise and stock in trade of the said Bowers, in his possession at the date of the mortgage.

Assumpsit on a promissory note, dated September 25, 1851, for $200, payable to Ed. H. Mead, or order, in ninety days, and endorsed to the plaintiff.

<p>In an indictment on the statute for concealing the goods of a debtor, to prevent their being taken for his debts, it is no defence to show that the defendant, at the time of the concealment, held the goods under a fraudulent mortgage from the debtor, duly executed and recorded.</p> <p>Nor that the defendant, previous to the concealment, was summoned as trustee of the debtor in a process of foreign attachment, which was pending at the time of the concealment.</p> <p>To show that the goods concealed were the property of the debtor, within the meaning of the statute, it is competent to prove that a mortgage, previously made of the same goods to the defendant, by the debtor, was fraudulent, though the taking of such mortgage by the defendant was a distinct statutory offence. Spirituous liquors may be taken on mesne process or execution, and sold on execution for the debt of the owner.</p>

<p>Trover. The action was referred to a commissioner, who reported that the goods mentioned in the plaintiff’s declaration were mortgaged by Isaac Currier to the plaintiff, Feb. 9,1853, to secure a note of $200. The mortgage was duly executed and recorded, and the debt due. The property was described as “ all the stock in trade now in store No. 18, Stark Buildings, Manchester, now occupied by me as a shoe store, consisting of boots, shoes, leather, rubbers and fixtures in said store.”</p> <p>The defendant, as deputy-sheriff, on the 15th of October, 1858, attached all the goods in that store on a writ in favor of French v. Isaac Currier and E. S. Tasker, enumerated in a schedule annexed to his return. Part of the goods attached were subject to the said mortgage.</p> <p>On the 18th of October the defendant, as deputy-sheriff, made a demand of the plaintiff to state under oath the amount due on the mortgage, and it was done. On the 19th the defendant requested Wilson to select and take away whatever he was entitled to under the mortgage, but he neglected and declined to do it. And on or about the 15th of October, Wilson, at the said store, said to the defendant that they had better not move the stock, as he had a mortgage upon it. The defendant told him he had attached the stock, and if he had a mortgage on it, or part of it, to take the articles away. Wilson said he did not exactly know what his mortgage consisted of, and could not tell till he saw Currier.</p> <p>On or about the date of the writ in this suit, and before its commencement, the plaintiff, by direction of counsel, in view of bringing the suit, made a demand of the defendant. No demand was made in writing, or of specific articles. The demand was general. Wilson demanded the property which Lane had in his hands of Currier’s, the whole he had of Currier’s. Lane replied he had a bond to indemnify, or good backers. Though general, as stated, the commissioner finds that it was intended as a demand of the goods mortgaged, and was so understood by the defendant. Currier, the mortgagor, was sick at the time of the attachment, and was confined to his house for six weeks or more after.</p> <p>A schedule of the goods which were mortgaged and attached, and their value, as found, and other similar goods, besides those included in the mortgage, were attached by Lane in the store. The articles .included in this schedule are the same as those specified in the plaintiff’s writ.</p> <p>Both parties move for judgment on the report, and each claims that the judgment should be in his favor.</p>

Motion to dismiss an appeal from the decree of the judge of probate. The appeal was entered at a trial term of this court, and the appellees moved the court that said petition and the appeal thereby claimed, be dismissed, for the following reasons: 1st. Because an appeal cannot be legally taken from the judge of probate to a trial term of the court. 2d. Because said petition was filed in the probate office on the 2d day of January, 1856, and is signed by Wm.

Debt on judgment. Plea, nul tiel record. Writ dated May 5,1853. The judgment declared on in this suit was recovered at the October term, 1852, of the common pleas. The action in which the judgment was recovered was against the defendant and one D. Whiting, as trustee. The writ therein was dated October 20,1851. In that writ the defendant is described as of Milford, in said county, where he resided at the date of the writ.

In Equity. The allegations of the bill and answer, the matters in controversy between the parties, and the evidence upon one side and the other, are sufficiently indicated in the opinion of the court.

<p>In Case, for obstructing a way, the declaration was as follows:</p> <p>“ In a plea of the case for that, whereas the plaintiffs, on the 7th day of July, A. D. 1858, and continually afterwards hitherto, have been and now are seized of a certain lot of land, situate in said Nashua, in their demesne as of fee, and the plaintiffs ■all that time had and now have and ought to have, a certain way for passing and repassing with their teams, carts, carriages, horses and otherwise, to and from the public highway, called Hollis road, or Hollis street, in said Nashua, by a passage called Pine street, of all which the defendants were well knowing, but contriving to hinder and deprive the plaintiffs of the use and benefit of their way aforesaid, the said defendants, on said 7th day of July, A. D. 1853, at said Nashua, did heap up the earth and stones, and lay down iron rails upon and across said way, and have ever since continued and maintained the said obstruction, so as to deprive the plaintiffs of the use and benefit of their said way.</p> <p>Also, for that whereas the plaintiffs, on the 7th day of July, A. D. 1853, had, and continually afterwards hitherto, have had and now are seized of a certain lot of land, situated in said Nashua, in their demesne as of fee, and the plaintiffs all that time had and now ought to have, a certain other way for passing and repassing with their teams, carts, carriages, horses and otherwise, to and from the public highway, called the Hollis road, or Hollis street, in said Nashua, by a passage called Pine street, of all which said defendants were well knowing; and whereas the said defendants were then and there, and ever since have been a railroad corporation, and contriving to hinder and deprive the plaintiffs of the use and benefit of their way aforesaid, the said defendants, at said Nashua, on the 7th day of July, A. D. 1853, in constructing their railroad, did heap stones, earth, wood and iron, on and across said private way, and thus caused obstruction to the same ; and in maintaining their said railroad have ever since continued the said obstruction, so as to deprive the plaintiffs of the use and benefit of their said way ; and the plaintiffs aver that more than sixty days before the date of this writ, to wit, on the 31st day of October, A. D. 1853, they gave notice in writing of the said obstruction, injury and inconvenience, to one of the officers of said corporation, to wit, to Thomas Chase, one of the directors thereof, and the said defendants have not removed the said obstructions, but still permit the said obstructions and injuries and inconveniences to continue, whereby and by virtue of the provisions of the 486th chapter of the laws of this State, approved July 3d, 1847, being an act entitled an act to render railroad corporations public in certain cases, and constituting a board of railroad commissioners, the said defendants became liable to pay the plaintiffs reasonable damages for said injury. To the damage of said plaintiffs, as they say, the sum of five hundred dollars. The writ was dated January 2,1854.</p> <p>The defendants filed a special demurrer, and assigned the following causes:</p> <p>1. Because the said declaration is uncertain, informal and insufficient, in this, that in and by said declaration the said plaintiffs have in their first count therein alleged certain supposed causes of action against the said defendants, known and created by the common law alone, and not known to or created by the statute law of this State; and in and by their second count therein have alleged certain supposed causes of action, founded upon and created by the statute law of this State, and unknown to the common law.</p> <p>2. Because there is not in either of said counts any sufficient designation or description of the lot of land, or premises in said counts mentioned, out of which said alleged right of way issues, or to which this right is appurtenant.</p> <p>3. Because the supposed right of way is not described with certainty, inasmuch as the termini, or limitations thereof, are not stated, and the supposed right is therein alleged to be “ by a passage,” and not by “ a way.”</p> <p>4. Because it is not alleged in either of said counts that the plaintiffs are entitled to or have said alleged right of way by reason of their ownership, or possession of the lots of land, or either of them in said counts mentioned.</p> <p>5. Because it is not alleged in either of said counts that said company adopted the provisions of said act, entitled an act to render railroad corporations public in certain cases, and constituting a board of railroad commissioners.</p> <p>6. Because it is not therein stated whether said supposed way was or is a public or private way.</p> <p>7. Because it is not therein alleged that the defendants are a public railroad corporation.</p>

Trespass for breaking and entering the plaintiff’s close, and cutting and carrying away timber. The general issue was pleaded, with a brief statement, justifying the act under the reservation in a deed.

Assumpsit. Writ dated December 31, 1853, and brought to recover the balance upon the following account: 1853, July 22. To bottoming one case of shoes, at 20 cents,.......$12.00 August 6. To bottoming one case shoes (extra sizes,)........12.60 $24.60 July 22.

Debt, to recover tbe penalty given by statute for demanding and taking illegal fees. The plaintiff was sentenced by the defendant, a justice of the peace, to pay a fine and costs on three several complaints returned before him, for assault and battery. The bills of costs were taxed by the attorney who conducted the prosecutions, and an attorney fee of five dollars was taxed on each complaint.

This was an appeal from the decision of the commissioner of insolvency on the estate of Adams Flint, disallowing a note, of which the following is a copy: uAntrim, December 13, 1853. For value received I promise to pay Nathaniel Flint, or his order, the sum of one thousand dollars, to be on demand and on interest, at my decease, and not before. Adams Flint.” Said Adams and Nathaniel Flint were brothers.

<p>A witness who demurs to answer interrogatories in a case in chancery will be charged with the costs arising from the delay of the cause, and of the attempt to take his testimony.</p>

Writ of Dower, dated March 31, 1854. The defendant was summoned to answer to Henry Robie and Sallie Robie his wife, who was the wife of Benjamin Baker, deceased, in a plea of dower, wherein they demand the third part of a messuage in Manchester, as the dower of Sally Robie of the endowment of the said Baker.

<p>If the mortgagor pays and takes up the note secured, and the next day re-delivers it to the mortgagee, takes back part of the money paid on the note, has the balance endorsed on it, and agrees with the mortgagee that the mortgage shall remain as security for the money repaid to him, and for a collateral liability of the mortgagee, the mortgage having been once discharged by payment of the debt secured, is not revived by the subsequent transaction, as against a creditor of the mortgagor, who levies his execution on the land without notice.</p>

<p>Writ or Entry, for a tract of land in the town of Troy, in said county, described in the plaintiff’s declaration, a copy of which is annexed and makes a part of this case. Pleas, disclaimer as to part, nul disseizin as to the residue. Copies of said pleas are hereto annexed and make a part of this case, as also a copy of the deed from Thomas Tolman to the town of Eitzwilliam, under which the plaintiff claims. This action was referred to a commissioner, who at this term of the court made his report, a copy of all which that is material is hereto annexed, and makes a part of this case.</p> <p>plaintirr’s declaration.</p> <p>In a plea of land, wherein the said Troy demands against the said Haskell possession of a certain tract of land, situate in said Troy, described as follows, to wit: Beginning at a point on the northerly side of the Swanzey road, so called, ninety feet easterly of the Tolman House, so called; thence north forty-five degrees east, to the westerly side of the Turnpike road, so called; thence southerly on said Turnpike road to the intersection of the said Swanzey road; thence north, on said road, fifty eight and one half degrees west, thirteen and nine tenths rods, to the place of beginning: Whereof the said Haskell unjustly and without judgment disseized the said town within twenty years now last past.</p> <p>Whereupon the said town of Troy say that they were seized of the demanded premises in their demesne as of fee, with the appurtenances, within twenty years now last past; and the said Haskell disseized him thereof, and still unjustly withholds the same.</p> <p>defendant’s pleas.</p> <p>And the said Joseph Haskell comes and defends the force and injury when, &c., and as to all that part of the demanded premises except a portion thereof described as follows : Beginning at the fence on the south side of his dwelling-house, at a point north forty-five degrees east from a stone set in the ground on the north side of the old Swanzey road, then running easterly, northerly and westerly, as the fence now stands, to land occupied by Brown Nurse. The said Haskell says that as to all that part of the demanded premises, except as aforesaid, he is not tenant thereof as of freehold, nor was such on the day of the purchase of the plaintiff’s writ, nor at any time afterwards, nor' ever had or claimed to have, nor does he now have or claim to have anything in the premises so demanded, but wholly disclaims to have anything in the same, and this he is ready to verify. Wherefore he prays judgment of the plaintiff’s writ, and that, as to all that part of the demanded premises excepted as aforesaid, the said writ may be quashed.</p> <p>By Levi Chamberlain, his attorney.</p> <p>And as to all the residue of the premises in the plaintiff’s writ demanded, the said Haskell comes and defends, &c., when, &e., and for plea says, he never disseized the plaintiffs in manner and form as the plaintiffs have declared, and of this he puts himself on the country. By Levi Chamberlain, his attorney.</p> <p>And the plaintiff likewise.</p> <p>By Wheeler & Faulkner, attorneys for Troy.</p> <p>Quitclaim Deed — Thomas Tolman to the Town of Fitzwilliam.</p> <p>Know all men by these presents, That Thomas Tolman, of Fitzwilliam, in the county of Cheshire and State of New-Hampshire, gentleman, for and in consideration of the sum of fifty dollars and — cents, to me paid by the town of Fitzwilliam, in said County and State, the receipt whereof I do hereby acknowledge, have remised, released, and forever quitclaimed, and do by these presents remise, release, and forever quitclaim unto the said town of Fitzwilliam forever, certain pieces of land, situated in Fitzwilliam and Marlborough, in said County and State, bounded as follows, viz: Beginning at a stake and stones about ninety feet east of my dwelling-house on the road leading from said Fitzwilliam to Swanzey; thence north-eastwardly about three rods, to land owned by Capt. Elnathan Gorham ; thence, in the same direction, bounded west by Capt. Gorham’s land and the turnpike road, as far as my land goes north ; thence south-eastwardly as far east as my land goes, to land owned by Jonathan Wood, as far south as my land goes ; thence westwardly, bounded south on the Fitzwilliam and Swanzey road, to the first mentioned bounds, all public roads excepted. Said land is to be for the use and benefit of the public, and to be improved for a public common, and no other purpose. To have and to hold the same, together with all the privileges and appurtenances thereunto belonging, to the said town of Fitzwilliam forever. And I do hereby engage to warrant and defend the same against all claims arising by, from or under me.</p> <p>In witness whereof I have hereunto set my hand and seal, this tenth day of August, in the year of our Lord one thousand eight hundred and fourteen.</p> <p>Thomas Tolman. [seal.]</p> <p>Signed, sealed, and delivered in presence of</p> <p>Elnathan Gorham,</p> <p>Daniel W. Farrar.</p> <p>State of New-Hampshire: Cheshire ss., August 10, 1814. Then Thomas Tolman personally appeared and acknowledged the foregoing instrument to be his voluntary act and deed. Before me, Joshua Harrington, Justice of the Peace.</p> <p>Cheshire Records — Received 1st July, 1858. Recorded in book 176, page 38. Examined by H. A. Bill, Register.</p> <p>commissioner’s report.</p> <p>The demanded premises, on the 10th of August, 1814, belonged to Thomas Tolman, of Eitzwilliam, in said county, who, by his quitclaim deed of that date, duly executed and acknowledged on the same day, and recorded in the records of said county, July 1,1853, conveyed the same, with other land therein described, to said town of Eitzwilliam. Immediately following the description in said deed is the following clause: “ Said land is to be for the use and benefit of the public, and to be improved for a public common and no other purpose.” Said land was then in the town of Eitzwilliam.</p> <p>The Legislature of this State, by an act approved June 23, 1815, incorporated the said town of Troy, and included within the limits of Troy that part of the town of Fitzwilliam in which the demanded premises were sitúate. Since the date of said deed of Thomas Tolman, all the land therein described (which is in question between these parties in this suit,) has remained unenclosed and open to public use, except that part of the demanded premises not disclaimed, and the defendant has committed no act of disseizen unless upon the part not disclaimed. Of this part he had exclusive possession at the time of disseizen alleged in the plaintiffs’ declaration, and still holds the same.</p> <p>The defendant contended —</p> <p>1. That the town of Troy has no legal title to any part of the demanded premises.</p> <p>2. That the defendant, and those under whom he claims, have had the undisturbed occupancy and possession of that part of the demanded premises, not disclaimed, for more than twenty years prior to , the commencement of this suit, adverse to the possession of the plaintiffs.</p> <p>3. That the plaintiffs declare on their seizin in fee generally : That the conveyance from the grantor to the town of Fitzwilliam is “ for the use and benefit of the public, and to be improved for a public common and for no other purposethat this does not give a fee simple to the grantees, and that they are bound to declare according to their title.</p> <p>The defendant claimed the title under a deed from Horatio Lawrence to him, dated April 6,1841, duly executed, acknowledged and recorded, and describing the following premises, by reference to a former deed, viz: “ A certain piece or tract of land, with the buildings thereon, situated in Troy village, running from the south-west — of the common to land of David Wilder; thence westerly to a stake and stones; it being the north-west corner of said land; thence southerly to a stake and stones at the road; thence easterly on the road to the first mentioned bound, containing about one fourth of an acre, be the same more or less ; which described premises adjoined the Common, so called, at the place in question; and showed by deeds of Stephen Tolman, dated October 16,1824, and of the other successive owners, conveyance of the same to said Lawrence, prior to the date of his deed.</p> <p>The evidence on both sides in relation to the lines and to the precise extent of the adverse possession, was very indefinite, but I find that the defendant and those under whom he claims, for more than twenty years prior to the commencement of the plaintiffs’ action held adversely to the proprietors of the demanded premises that part of the same not disclaimed, which lies west of a line running north 45° east, and passing at the south-east corner of the defendant’s house.</p> <p>Frederick Yose, Commissioner.</p>

Writ or Entry, in which the demandant claims to recover a tract of land in Walpole, of which he alleges he was seized in fee till disseized by the tenant. The tenant pleaded the general issue.

This action was case, for damage done to the plaintiff’s horse while in the possession and keeping of the defendant as an innkeeper, and was referred to a commissioner, who made his report, stating the following facts: The defendant was the keeper of a common inn at West Swanzey, but had no taverner’s license.

<p>If an individual dies possessed of estate in different governments, administration may be granted in each government where the property is situated. The principal administration is granted in the State or government of the domicil of the deceased, and the other administrations are ancillary, or auxil-. iary to the principal one.</p> <p>As a general rule, all contracts for the payment of monej’, whether sealed or unsealed ; all mortgages, bonds, judgments, notes, accounts, &e., are presumed to be paid after the lapse of twenty years.</p> <p>The presumption of payment arising from the lapse of time is not an absolute bar, like the statute of limitations, but may be rebutted by various circumstances showing non-payment.</p>

Assumpsit, for the board and support of one Albion Dike, alleged to be a pauper, standing in need of relief, and residing in Unity. The writ was dated March 12,1851. The declaration contained three counts.

Assumpsit, for the labor and services of the plaintiff from March 1,1851, to March 1,1854. At the August term, 1855, of the common pleas for this county, the action was referred to a commissioner, who, at the February term, 1856, reported as follows: “ 1.