Volume 34 — New Hampshire Reports

71, as the share belonging to said Merit of the balance of $3594.21, remaining in the hands of said administrator on the settlement of his administration account, made at the term of the probate court holden at Newport on the last Wednesday of August, 1854.

<p>Case, for an injury alleged to have been sustained by the plaintiff through a defect in a highway in said Charlestown. The writ is dated December 29, 1853, and the injury is alleged to have been sustained on the 16th day of September, 1853. Plea, the general issue. To prove the existence of the highway in question the plaintiff offered in evidence the town records of Charlestown, containing what purported to be minutes of the laying out of the highway by the selectmen of Charlestown, under date of October 24,1835, a copy of which is annexed and makes a part of this case ; a vote of the town, under an article in the warrant for a town meeting for that purpose, to raise money to build the highway; an article in the warrant for a subsequent town meeting, to see if the town would discontinue said highway, and a vote of the town not to discontinue the same. He also offered to show that the land damages had been paid by the town, the highway constructed, paid for and opened for public travel by the officers of the town, in 1836, and that it has been in use as a highway since that time; that said highway has been included in the warrants of the highway surveyors made by the selectmen, and has been worked upon under said warrants, and that highway taxes had been worked out thereon up to the time of the accident.</p> <p>On the part of the defendant it was objected that these facts did not constitute the road in question a legal highway, inasmuch as the records of the town did not show that there had been a petition to the selectmen to lay out said highway, but only showed a town meeting, called to see if the town would instruct the selectmen to lay out said highway, and a vote of the town to refer the same to the selectmen to do as they saw fit. Said vote and the article in the warrant for said town meeting are as follows :</p> <p>“ Art. 3d. To see if the town will lay out a public road, beginning near the south-west corner of David Taylor’s farm, running through land of John Dinsmoor, near the school house in school district No. 9, to the old road near Jesse Davis’ house.”</p> <p>“ 3d. Voted, to leave it to the discretion of the selectmen to lay out, or not, as they shall judge expedient, a public road according to the description in art. 3d of the warrant.”</p> <p>The plaintiff contended that the town was not now in a position to call in question the existence of the highway, but was estopped to deny that it was legally laid out. He also contended that the jury might presume from the foregoing evidence that the highway was legally laid out.</p> <p>The court ruled that, inasmuch as it did not appear from the records of the town that the highway was legally laid out, the town wms not estopped to deny the existence of the same as a public highway, until it had been used by the public for a term of time not less than twenty years, and that the jury could not rightfully presume the existence of it as a public highway short of’the same period of time.</p> <p>Whereupon a nonsuit was entered, by consent, to be set aside and a new trial granted, or judgment to be entered thereon, as the Supreme Judicial Court shall order.</p> <p>Minutes of a Road laid and established by the Selectmen of Charlestown, the 24ih of October, 1835.</p> <p>Beginning at a stake set in Charlestown, on the east side of the road leading from Joshua Davis’ to Lewis Bond’s, a little southerly from Joshua Davis’; also S. 89 deg. 10 min. east, 2 rods from a maple tree, marked, and standing on the west side of the road; running thence S. 79 deg. 10 min. E. 71 rods to a stake set in a pass or cleft in a ledge of rocks; thence S. 72 deg. 45 min. E. 31 rods, this last distance passing li rod northerly of the north-east corner of a school-house; thence S. 80 deg. 50 min. E. 47 rods; thence N. 67 deg. 25 min. E., 20 rods; thence S. 81 deg. 5 min. E. 38i rods, to the west side of the road leading from David Taylor’s to Samuel Putnam’s. Distance through land of Joshua Davis 76 rods. Distance through land of John Dunsmore, 131i rods. The road thus laid to be three rods wide.</p> <p>Damages assessed to John Dunsmore, $131.50</p> <p>do. do. Joshua Davis, 76.00</p> <p>By the Selectmen,</p> <p>Isaac Silsby,</p> <p>Seth Meacham,</p> <p>S. D. Hassam,</p> <p>) > )</p> <p>Selectmen of Charlestown.</p> <p>Copy attest, William Gordon, Town-clerk.</p> <p>Recorded by William Gordon, Town-clerk.</p> <p>A true copy of record. Attest: Samuel L. Wilder, Jr.,</p> <p>Town-clerk, 1853.</p>

<p>A bailee at will of personal property, where the bailment may be terminated at the pleasure of either party, and a bailee in whom a personal confidence is reposed, have no assignable interest in the thing bailed; and any sale by them passes no property, but puts an end to the bailment, and the bailor may bring trover or trespass against the purchaser who takes the property.</p> <p>But a hirer of property fos a term, or a bailee who has a lien upon the property, may have an assignable interest in it, and though his sale of the property absolutely will put an end to the bailment, yet his transfer of his interest merely, that is, of the property subject to the rights of the general owner, will convey his interest, and the purchaser will hold the property in the same manner as the seller did.</p> <p>The defendant sold steers to Y., on condition that they should remain his property till Y. paid for them. If Y., before payment, sold the steers to the plaintiff, subject to the defendant’s claim, the plaintiff acquired the same rights to the property as were held by Y., and on tender of the price the property became his.</p>

Writ op Entry, brought to recover certain real estate in Claremont, in this County. The writ is dated June 15,1855. The will of Samuel Ashley, hereto annexed, makes part of this case. The plaintiff claims under Eunice Ashley, named in said will, and the widow of said testator.

This is an action on the case, alleging that the defendant enticed away from the plaintiff’s service, Mary Cooper and John B. Cooper, servants of the plaintiff, and received and harbored them.

<p>Where there are several covenants, promises or agreements, which are independent of each other, one party may bring an action for a breach without averring or proving performance on his part, and it is no excuse for the defendant to allege in his plea a breach on the part of the plaintiff. Aliter, if the covenants, promises or agreements are dependent.</p> <p>Where agreements or covenants are independent as to one party, they are so as to the other; so that if any act is to be done, service rendered, or article delivered by a specified day, and the payment therefor is not to be made till a subsequent day, an action may be maintained for a breach of the agreement, before the payment falls due.</p> <p>On the 27th of December Putnam and Mellen agreed to exchange oxen on the next morning at one W’s, and P. was to pay M. seventeen dollars as boot, on the 15th of January following. P’s cattle were ready at W’s on the 28th of December till eight o’clock in the forenoon, and were then absent two or three hours, when they were driven back. While absent, M. came with his oxen, to exchange, and remained till P’s came back, and the parties met within twenty-five or thirty rods of W’s house, but the exchange was not made. — Held, that the agreements to make the exchange and to pay the money at a future day, were independent undertakings, and that an action conld be maintained for a refusal to make the exchange on the 28th, without showing a payment of the seventeen dollars. — Held, also, that P. was not hound to give security for the seventeen dollar's, before the exchange took place; and held, further, that there was a substantial performance by P. on the 28th, of his part of the contract to be performed on that day.</p>

Assumpsit, for money had and received, commenced against the deceased in his life-time, to recover two hundred dollars alleged to have been paid him as usury.

Writ or Entry, commenced by Joseph Bell, the intestate, and prosecuted by the plaintiffs, his administrators, against Joshua Woodward, James Woodward, and Joshua Henry Woodward. James Woodward pleads sole tenure in himself; the other tenants severally disclaim.

This is a bill filed under the provisions of the Revised Statutes, in the court of Common Pleas, praying for an account of a mortgage debt, and to redeem the mortgaged property. The petition charges that P. A. Bean, on the 4th of April, 1840, mortgaged the land in question, situate in Littleton, to John Gile, to secure four notes of sixty-two dollars and fifty cents each, payable in one, two, three and four years, with interest annually.

<p>It is no sufficient ground for excluding a witness from testifying for a corporation, that he may he liable for the debts of the corporation on account of his having been a stockholder therein, under the statute giving a remedy to the. ereditors of the corporation in certain specified cases, and upon particular proceedings prescribed for the recovery of their debts against the stockholders personally.</p> <p>The records kept by the clerk of a railroad corporation of the proceedings of the directors in ordering assessments upon the shares in the capital stock, may be used as evidence by the corporation in a suit brought by them to recover an assessment upon the shares subscribed for by the defendant; he being one of the original grantees in the charter, and a director at the time the assessment was ordered, and having exercised the privileges of a stockholder, in virtue of the shares upon which the assessment was made.</p> <p>A secret agreement, entered into between the directors of such corporation and a subscriber for shares in its capital stock, that he may within a specified time reduce the number of shares thus subscribed for, the subscription being held out as bona fide for the full amount, in order to induce others to become subscribers, is void, as a fraud upon the other subscribers; and the original subscription may be enforced for its full amount between the corporation and subscriber.</p> <p>Where the charter of a corporation limits the capital stock to not less than five hundred nor more than ten thousand shares, of one hundred dollars each, and authorizes the directors to assess upon five hundred shares as soon as subscribed for, and from time to time to enlarge the capital up to the maximum limit, all the shares to be equally assessed, it is not necessary for the corporation to determine the ultimate amount of its capital within the limit of the ten thousand shares, before proceeding to make assessments upon the first five hundred subscribed for.</p> <p>Nor is it necessary, in order to entitle the corporation to recover the assessments so made, that notice should have been given to the governor, of the assessments, according to the provisions of the third clause of sec. 2 of the act of 1846, in amendment of the law relating to corporations.</p> <p>An action may be maintained by a corporation, upon a promise by a subscriber for shares in its capital stock, contained in his subscription to pay the assessments upon them as ordered, notwithstanding the charter empowers the directors to sell the shares for the non-payment of the assessments.</p> <p>Claims allowed against an estate under a commission of insolvency, for which the intestate was the surety of a third person, are not to be considered in determining the amount of the claim by such third person against the estate under the commission. The dividend which the administrator may pay upon the claims for which the intestate was surety, will be a set-off in the hands of the administrator against the dividend, to be paid upon the claim of the principal.</p>

<p>A book produced, being admitted to contain the ancient records of a proprietary, the recent entries are not admissible in evidence, without proof that the supposed clerk was elected, or, de facto, acted as clerk on other occasions.</p> <p>A tenant in a real action may require evidence that a corporation, whose organization has been lost, bas been reorganized according to law, where the demandant claims under a title derived from the subsequent action of the corporation.</p> <p>Where a corporation has no officer by whom a new meeting can be called, its powers are suspended, or dormant, till it is reorganized under a new charter, or by a meeting called under the statutes, by a justice of the peace.</p> <p>Under the statute of 1846, a justice has no power to call a corporate meeting, unless upon petition of three or more proprietors.</p> <p>Under that statute, the warrant must be published in the county where a majority of proprietors are shown to reside.</p> <p>Under the Revised Statutes, the petition to a justice must be shown to bo signed by the proprietors of one twentieth of the corporate property.</p> <p>The warrant is not evidence of that fact, unless it recites a decision of the justice upon that point, even if it would be in that case.</p> <p>The records of meetings held forty years ago, upon petition of the father of the present petitioners (whose heirs they are) reciting that he was owner of more than one sixteenth part of the proprietary property, are not evidence of such property against a stranger.</p> <p>There is no presumption in recent transactions in favor of the authority of a magistrate authorized to act in special cases ; the facts which give him jurisdiction must appear.</p> <p>Where a proprietary vote authorized a meeting to be called by publishing a notice in a newspaper published in Hanover, if any, otherwise in one published at Concord, a warrant requiring a notice to be published at Concord will be insufficient, unless there is evidence that none was published at Hanover.</p> <p>If a justice, by his warrant, require notice to be published in a newspaper and by posting in town, a notice by posting will be insufficient, although, by a vote of the proprietors, it would ordinarily be sufficient.</p> <p>Where notice is required to be published, the meeting cannot bo held legal without proof of such publication.</p>

Petition for writ of certiorari, to quash the record and proceedings in the Court of Common Pleas on the petition of Clark Hayward for a highway in the towns of Bath and Landaff. The petition had been referred to the road commissioners for Grafton county, who, at the September term, 1854, made their report, laying out the highway in both' towns. The towns resisted the motion of the petitioners for the acceptance of the report, and filed several exceptions to the report.

Case against the defendant, for placing an obstruction in a highway, by reason of which the town was compelled to pay damages to one Shute, who sustained damage In consequence of the obstruction, and recovered a judgment therefor against the town, which they have been compelled to pay. It was admitted at the trial that this defendant placed in the highway the stones referred to in Shute’s declaration against Littleton.

<p>On appeal from a decree of the judge of probate, making a second allowance to a widow, it was held, that though a court of probate may make an allowance to a widow without notice, in the exercise of its discretion, yet the discretion to be exercised is a legal and not a capricious discretion; and where one allowance, deemed at the time suitable and sufficient, has been made, it is not a just exercise of such discretion to make a further allowance without notice.</p> <p>On appeal in such a case, the Supreme Court examine the question as to the amount of the allowance, as if the case were originally before them.</p> <p>Where the debts exceeded the whole estate, which was about $6,400, and the widow’s dower was worth $640, and she was allowed $600, a further allowance was not deemed reasonable.</p>

<p>It is no defence to a scire facias upon a recognizance entered into by the appellant to the adverse party, upon an appeal from the judgment of a justice of the peace in a civil suit, that the recognizance was taken with one surety only, it appearing that the parties agreed that it should he so taken.</p> <p>Nor is it a ground of defence to such scire facias, that after the appeal was entered in the Court of Common Pleas, the parties made an agreement in writing to refer the action, and have it dismissed from the docket of the court, it appearing that the agreement was not filed with the clerk until after two continuances of the cause in that court, and a trial by jury and verdict returned subsequent to the making of the agreement.</p>

Trespass, quare clausum, and for cutting and carrying away a pine tree, of the value of twenty-five dollars. Plea, the general issue.

Petition for a highway in the towns of Holderness and Bridgewater, across the Pemigewassett river. This case was referred to the road commissioners for Grafton county, at the May term of the Court of Common Pleas, 1852.

<p>Where a cause has been referred to an auditor, and one of the parties, after due notice, wholly neglects to appear, either by himself or attorney, and the auditor reports the facts, judgment will be rendered against the party guilty of such neglect, unless he show cause to the contrary.</p> <p>But where the personal attendance of the party is required before the auditor, to answer interrogatories, or he is called on to produce books and papers, a special notice of what is required must be served on him a sufficient time before the hearing; otherwise he will not be guilty of a neglect or refusal under the statute.</p>

<p>This is an action on the case, brought July 2,1853. In the declaration it was alleged in substance that the defendant Fabyan, having been a tenant of a certain hotel in Carroll for a term of five years, which expired on the 20th of March, 1852, the defendants wrongfully continued to occupy the same after the said lease expired ; and so negligently and carelessly conducted and managed certain fires by them set and kept in said hotel, that on the 29th of April, 1853, the same was burned down and consumed. The defendants pleaded severally the general issue —not guilty.</p> <p>To show title to the house described in the declaration, the plaintiff showed that the land on which it stood, together with a part of the house, were in possession of E. A. Crawford on December 12, 1837, and for many years before, and that on that day said Crawford conveyed the same to Nathaniel Abbot, who, on June 24th, 1842, conveyed the same to Daniel Burnham. Said Burnham, on the 20th of August, 1844, deeded the same hotel and land to the plaintiff. The plaintiff, on January 28,1847, executed a lease of said hotel to the defendant Fabyan, for the term of five years from March 20,1847, who held the same under said lease until he accepted a lease from one Dyer, as hereinafter mentioned. On the 19th of March, 1852, an agent of the plaintiff, duly authorized, call upon said Fabyan, at Conway, where he resided, and on the 20th of March called upon said Fabyan’s servant, who had charge of said hotel, at said hotel, and on the 22d of March again called on said Fabyan, at Conway, and on each occasion demanded that possession of said hotel should be surrendered to the plaintiff, which was refused — said Fabyan saying that he had taken a lease from said Dyer. And it appeared that on March 19, 1852, and from that time until after said hotel was burned, said Fabyan held possession of the same by lease from said Dyer, who had also agreed to indemnify him against any suit brought against him by said Russell for rents, and from all costs, trouble and expense of any kind which might happen to him on account of his taking said lease. On April 29,1853, said hotel, then occupied as such, took fire from some one of the stoves or fire-places used therein for cooking, or for warming the building, or from sparks from the same, and was entirely consumed.</p> <p>The defendants offered the following testimony, to the competency of which the plaintiff objected : viz., a copy of a judgment recovered by said Dyer against said Daniel Burnham, at the Court of Common Pleas for Carroll county, May term, 1848, and the execution issued thereon, with the return of satisfaction thereof, by a levy in due form of law upon said land and hotel, as the property of said. Burnham. The suit was commenced May 10,1843, and the hotel and lands attached May 16,1843, and the set-off commenced in thirty days after judgment.</p> <p>In reply to this evidence the plaintiff proved that on November 30, 1849, he tendered to said Dyer, for the redemption of said property from said levy, the sum of $5,394.50, being the amount for which the same was set off, with costs, expenses and interest, and left the same, without his consent, at said Dyer’s house, the said Dyer refusing to receive it. The defendants also offered in evidence a copy of another judgment, recovered by him against said Burnham, at the Court of Common Pleas for Carroll county, May term, 1848, for $4,791,56 damages, and $20.58 costs ; which judgment was recovered in a suit founded upon said Burnham’s certain notes, bearing date October 10, 1885, and the return of the seizure and sale upon said execution to the said Dyer of the right of said Burnham to redeem the said hotel from the levy before mentioned. The defendants also offered evidence for the purpose of showing that the conveyance hereinbefore mentioned, from said Burnham to said plaintiff, was fraudulent and void as against creditors, because made without consideration, and for the purpose of preventing said property from being attached for his debts. The plaintiff objected to the competency of all the foregoing evidence offered by the defendants.</p> <p>It was agreed that the case should be transferred to this court for the decision of the questions of law arising in the same; and that if this court should be of opinion that the evidence so offered b^ the defendants is admissible to show the said conveyance to be fraudulent, the case shall be transferred back to the Court of Common Pleas for trial If; upon the other competent evidence before stated, either party is entitled to judgment, the same shall be rendered accordingly, the damages to be assessed by a jury, if the judgment is for the plaintiff.</p>

Trespass. The declaration alleged that the defendant, on the 28th of January, 1854, assaulted and beat the plaintiff, and forcibly removed him from a car in a train belonging to the Grand Trunk railway, while on his passage from Northumberland to North Stratford, in this county, and left him on the track in the night time.

In Assumpsit on appeal from a justice of the peace. The declaration contained but a single count, which was upon the following contract: “ Stark, April 6,1850. “For value received I promised to pay Josiah Miles, or bearer, five dollars in grain, in the month of November next, and interest.

Trespass, brought by appeal from a magistrate to the Common Pleas. The original writ was served by arresting the defendant, who procured his father, Ezra Kennison, to become his bail, by indorsing his name on the back of the writ. Upon the trial the defendant offered the wife of said Ezra Kennison as a witness, to whom the plaintiff objected on the ground of her husband’s interest, and the court excluded the testimony.

<p>A deputy sheriff, to whom a writ of attachment is delivered, with instructions to attach thereon a specific chattel, cannot avoid liability for neglecting to make the attachment, upon the ground that no indemnity was furnished against the liability which he might incur, or that his fees for the service were not paid or tendered, unless, at the time of receiving the instructions, or subsequently, upon ascertaining the true situation of the property, he gave notice to the party requesting the attachment that he objected to proceeding, for those reasons.</p> <p>A writing, signed by the deputy and returned with the writ, by which the deputy promised to he accountable to the plaintiff for the amount of the judgment which might be recovered in the suit, does not subject the sheriff to official accountability, and is not, therefore, equivalent to a return of property attached.</p> <p>The measure of damages in an action against the sheriff or his deputy, for such neglect, is the amount of the judgment, or so much thereof as the value of the property which the deputy neglected to attach would have been sufficient to satisfy.</p> <p>The deputy who is liable for such neglect is not a competent witness for the defendant in the action upon the writ in which he thus neglected to make the attachment.</p>

Assumpsit, to recover for supplies furnished for the support of Jeremiah Harding, and his wife Nancy Harding, alleged to be paupers having their settlement in Gorham. The plaintiffs gave evidence that when Gorham was incorporated, on the 18th of June, 1836, Jeremiah Harding resided and had his home in the place which was incorporated into that town.

<p>The interest of the mortgagor in possession of the land mortgaged will pass by the extent thereon of an execution against him upon an appraisal of the land at its full value, irrespective of the mortgage.</p>

<p>Trespass, for wood taken by the defendant from the plaintiff’s land, situate in Northumberland. Plea, the general issue.</p> <p>It appeared that the Atlantic and St. Lawrence Railroad Co. had a strip of land, six rods in width, laid out through the plaintiff’s land for the purposes of said road, and that the wood in question was cut upon said strip of six rods wide, and between the track of said road and the boundary lines of said strip on either side, by the defendant, for a person in the employ of said corporation, and there was evidence tending to show that it was used for the company.</p> <p>The defendant introduced and read, without objection, records and files from the Court of Common Pleas, showing an appeal by the plaintiff from the decision of the railroad commissioners in conjunction with the selectmen of Northumberland, laying out the road over the land of the plaintiff, and assessing his damages ; and it appeared that there was a jury trial, and verdict for the plaintiff on said appeal, and a transfer of the case to the Superior Court; and it was admitted by the plaintiff that before the questions of law arising upon said case were decided by said Superior Court, the damages, as assessed by the jury, and cost3, were paid by said company to the plaintiff. Either party may refer to any- records and files of the court in said case.</p> <p>The court ruled and instructed the jury, that notwithstanding said appeal and verdict, and the payment of the damages, as assessed by the jury, the wood upon said land would be the property of the plaintiff.</p> <p>The jury returned a verdict for the plaintiff, which the defendant moves the court to set aside, because of said ruling and instructions to the jury.</p>

<p>A sale is not complete, so as to pass the property, while any thing remains to be done to ascertain the price, nor until the price is paid or secured, unless it may be inferred from the evidence that the parties intended the property should pass at once, and the price be fixed, or payment made at a future time.</p> <p>If material facts are left in doubt upon the evidence, the question as to the intention of tho parties, as to the effect of the sale, should be left to the jury.</p> <p>An agreement was made at C., in this State, for the sale of certain goods, then stored there, for seventy-five per cent, of the amount at which they should be appraised by a third person, to be paid, half by the buyer’s note, and half by the note of another person, and cash. There was no direct evidence of any delivery of the goods at C., or that the terms of the agreement should not be at once complied with. The appraisal of the goods was made the next day, and the goods were taken and removed by an agent of the buyer. The payment by notes and money, and the bill of the goods, were made on a subsequent day atB., in Massachusetts. — Held, it could not be assumed that the sale was complete at C., but the evidence, relative to that question, should be submitted to the jury.</p>

Case, for flowage. Tbe action was referred to a commissioner, who made the following report: That the plaintiff’s dwelling-house, mentioned in his declaration, was built between twenty-five and thirty years ago, and is now owned by the plaintiff and his father — the plaintiff owning the westerly half, and his father the easterly half; that the plaintiff’s store was built between twelve and sixteen years ago; that the highway, running northerly and southerly by the eastern…

<p>Prior to the passage of the act of June 26, 1845, no general law existed in this State for constituting a school district composed of inhabitants of, or comprising territory within, different towns.</p> <p>The petition to the selectmen for a new district under the provisions of sec. 2 of that act, need not set forth the particular interest which the petitioners have in the subject; it is sufficient if it allege in general terms that they are interested.</p> <p>It is no legal objection to the validity of the proceedings in constituting such district, that its boundaries, as established, are different from those prayed for — nor that other persons than the petitioners are included within its limits — nor that an entire district existing in one of the towns is taken as part of the new district — nor that a majority of the members of either of the old districts, the whole or a part of which is included within the new, were opposed to the measure.</p> <p>A tax assessed for school-house purposes by the boards of selectmen of the towns in which the new district is situated, acting together as a joint board, is illegal. The assessment should be made under the provisions of sec. 3 of said act, and not of the act of July 2, 1845.</p>

<p>A ministerial officer is protected in the service of process unless he shall act maliciously, if the process be regular on its face and do not disclose a want of jurisdiction, whenever there is jurisdiction of the subject matter; and trespass will not lie for an act done under process, valid on its face, regularly issuing from a court of competent jurisdiction.</p> <p>The arrest upon regular process of a person privileged from arrest, forms no exception to the general rule.</p> <p>By the statute of New-Hampshire, collectors of taxes, in executing the warrants to them directed for the collection of taxes, are vested with the powers of constables in the service of process.</p> <p>Trespass will not lie against a collector, who, by virtue of a legal warrant to him directed, arrests a legal voter on the day of election for the non-payment of his tax, although such voter be exempted by statute from arrest on such day.</p> <p>Exemption from arrest, whether existing at common law or by statute, is a personal privilege, and may be waived by the party entitled to it.</p>

<p>The defendant accepted an order, dated Pebruary 9, 1853, drawn upon him by one S., in favor of the plaintiffs, of the following tenor: “ Please pay to B. & P. $370, on the lease of the Union house, after taking out the notes you held against me, amounting to $300, and interest from Pebruary 1, 1853, or about that time, if there should be so much, or to give up the lease to them after I may pay you the notes ; then give them the lease, for the purpose of securing them for the above amount due them as above mentioned.” — Held, that the legal construction of the order was for the defendant first to pay himself, out of the rents received on the lease, the $300, and interest on the same; and then to pay the balance of the rents to B. & P., to the amount of $370, should they reach that sum, or assign the lease to them; that the acceptance bound the defendant to pay any excess of rents, however small, over the $300, and interest, until the payment should reach the sum of $370.</p> <p>It appeared that the rents during the continuance of the lease would not amount to a sum sufficient to pay the notes and the $370 ; that by an arrangement between the parties B. & P. received the rents up to the last quarter, and paid the $300 and interest, and the defendant retained the lease; that at the commencement of the last quarter the defendant directed the tenant to pay the rent to him, and B. & P. did not receive the rent for that quarter. Upon a suit commenced against the defendant upon the order, after the expiration of the lease, — held, that he was liable for the amount of that quarter, and that the suit could be maintained without showing any special demand therefor.</p>

Petition for Partition, wherein the petitioner alleged that he was seized in fee, as tenant in common with the defendants, of a tract of land in Pembroke, and prayed that partition thereof might be made. An issue was joined upon the pleadings, and a trial had in the Common Pleas. The petitioner introduced several deeds, tracing title to Christopher Osgood and Charles Flanders as the original grantors. On the 4th of June, 1801, Christopher.

Assumpsit, for tbe support of E. Holt, a pauper, from August 27,1847, to January 10,1850. Plea, the general issue. It was agreed that said Holt was a pauper, standing in need of relief, and that the supplies, as charged, had been furnished by the plaintiff, and that proper notices under the statute had been served on the defendant, according to law.

Assumpsit. The defendant appeared at the term of the Common Pleas, held on the first Tuesday of November, 1855, and enrolled the writ, the officer’s return, and the summons left with the defendant, by which it appeared that the writ and summons were dated October 1, 1855 ; that the defendant was required by the writ to answer in the Court of Common Pleas “ on the first Tuesday of November next,” which would be in the year 1855, and by the summons, “ on the fourth Tuesday of…

Assumpsit. The declaration contained two counts. First, on an account annexed to the writ, for seventy-two and three fourths days’ work, at nine shillings per day, commencing August 14,1855, and ending November 18, 1855 ; and, second, a general count for work and labor. Plea, the general issue.

Case against tbe sheriff for an alleged false return of his deputy. A copy of the declaration, marked A, is annexed, and makes a part of this case. It was admitted that at the time the alleged cause of action arose, the defendant was sheriff of said county, and Warner Clark his deputy.

<p>A widow, who continues, after the decease of her husband, to occupy the dwelling which constituted the family home at the time of his death, is entitled, under the act of July 4, 1851, to a homestead, to be assigned to her out of the estate, to the value of five hundred dollars, and her right to the homestead is paramount to the claims of creditors, heirs and devisees, so long as she continues to occupy.</p> <p>Such assignment is to be made, notwithstanding the estate may be under tbe incumbrance of a mortgage which is paramount to the homestead right, and in making the assignment the estate is to be valued as though it were free from the mortgage.</p> <p>The judge of probate is authorized in such case to make the assignment by virtue of the provisions of sec. 1, ch. 167, Kevised Statutes.</p>

Process, under the statute of landlord and tenant. The questions in the case arose in the pleadings, which are sufficiently stated in the opinion of the court.

<p>Upon the death of a testator, and before probate of the will, the legal title to all the personal estate of the deceased becomes vested in the person named as executor, as trustee for the legatees, creditors and others, under the will, and he is the only legal representative of the estate disposed of by the will.</p> <p>The person named as executor has sufficient interest in the estate of a testator to give him a right, under the statute, to claim and prosecute an appeal from a decree of the judge of probate, refusing to admit the will to probate.</p> <p>His interest is sufficiently set forth by an allegation that he is named as executor of the will, and interested therein.</p>

Assumpsit, for that the defendant, in consideration that the plaintiff had released to him certain lands described, promised to pay to one Leonard Keyes the amount of a debt due him from the plaintiff, secured by mortgage of the lands. Plea, the general issue.

Assumpsit, for medical services alleged to have been rendered for the defendant’s wife, Esther West. The defendant denied that Esther West was his wife, and, if she were, that the services were rendered under such circumstances as to make him liable. The plaintiff offered evidence tending to show that the defendant had cohabited with the said Esther West, and acknowledged her to be his wife some time before the services were rendered.

Indictment, for keeping intoxicating liquor for sale. Upon trial, a witness for the State testified that he was a constable of Nashua, and that, on the 15th day of October, 1855, (the day of the alleged offence,) he went to the respondent’s store, in Nashua, in company with and as assistant to the assistant marshal of that city, who had a warrant to search McGlynn’s store for spirituous liquors.

Assumpsit, on a warranty that a horse sold by the defendant to the plaintiffs was sound. The plaintiffs contended that the horse for a year or more before the sale, had had, at times or constantly, a cough, which resulted either before or after the sale, in the disease known as the heaves, and that this affection was, at the time of the sale, such as to constitute unsounduess, as alleged in the declaration.

Assumpsit, for work and labor, and for money had and received. The specification of the general counts consisted of charges for the work and labor of the plaintiff, performed for the defendant, and for money received by the defendant for the plaintiff’s labor, in different years, from 1820 to the date of the writ, which was January 3,1853. Plea, the general issue, and a brief statement of the statute of limitations.

The appellant, by his petition to the court of probate, set forth that on settlement of the account of Stephen Brown, administrator of the estate of Nancy Brown, late of Candía, deceased, a balance of $1274.58 was found in. the hands of the administrator ; that Hannah Jones, wife of the petitioner, and six others named, are the only heirs of the estate of the deceased, and prays for a decree of distribution of said balance among them.

This was a writ of entry, to recover possession of one twelfth part of two tracts of land, in Auburn, claimed in right of the wife, as grandchild and kin of Nathaniel Wood, deceased. Upon the general issue it appeared that Nathaniel Wood had four children, George, Jesse, Josiah and Betsey, of whom George died in 1808, leaving the plaintiff, Abra, and two other children. Nathaniel died in 1817, intestate, leaving three children surviving.

<p>Landlord and tenant are tenants in common of crops raised on shares, until a division is made. The tenant has a right, after he has quit the possession, to a reasonable ingress upon the land, to remove his goods and utensils. Trespass does not lie against him by the landlord, though he carries away the crops of which they are co-tenants.</p> <p>The right to enter for this purpose is derived from a license in law, and if the right is abused by a resort to violence to effect the object, the tenant becomes a trespasser ab initio, and liable not only for the entry, but for the landlord’s share of the crop carried away.</p> <p>The damages for the crops must be limited to the value of the landlord’s share.</p>

Writ or Entry, dated January 28, 1852, to recover three sevenths of the home farm of Nancy Brown, deceased, and of the wood lot adjoining said farm. The writ alleges a seizin within thirty years, and’ a disseizin, within that time, by the defendant. Plea, nul disseizin.

Trespass, quare clausum fregit, for breaking and entering the plaintiffs’ close, in Windham, and cutting and carrying away wood and timber. The following facts appeared on a ease agreed by the parties.

This is an action on tbe case, against the defendant, late sheriff of the county, for the default of his deputy, G. W. Towle, in not- paying over money collected on an execution in favor of the plaintiff against Belknap, Hale and Jones. At the September term, 1854, the defendant filed a confession of the plaintiff’s cause of action, to the amount of sixty-two dollars, and pleaded the general issue as to the residue of his claim.

<p>It is the duty of the judge of probate to extend the commission of insolvency upon an estate administered in the insolvent course, whenever, upon application to him for that purpose by a creditor, at any time within the two years fixed by statute as the ultimate extent of the commission, it shall be made to appear that such creditor has failed to present his claim to the commissioner for allowance, through accident, mistake or misfortune, unless the report of the commissioner has previously heen accepted, and the estate distributed to the creditors, or unless the claim which has failed to be presented be so extremely trifling in amount as not to warrant the expense — provided there has been no want of reasonable diligence in making the application.</p>

<p>It is not necessary that an indictment, under the act of July 14, 1855, for the unlicensed sale of intoxicating liquor, should negative the provisions of the twenty-third section of the act, exempting from its operation all sales made to agents within three months from the time when the act took effect, and sales hy one agent to another at any period.</p> <p>It is necessary that an indictment for a statute offence should negative an exception to the statute, only when the exception is so contained in the enacting clause thereof as to he descriptive of the offence.</p>

Assumpsit, for work and labor performed in grading the defendants’ railroad, in North Andover, Mass. It appeared in evidence that the plaintiff graded for the defendants a portion of their railroad, beginning at station 0, and extending to station 100.

<p>Where the words of the statute are descriptive of an offence, the indictment must follow the language of the statute, and expressly charge the respondent with the commission of the described offence in the words of the statute, or their equivalents, else it will be defective.</p> <p>Where a particular intent is essential to constitute a crime, that intent must be distinctly averred in the indictment.</p> <p>Where a statute makes criminal the doing of the act, “ willfully and maliciously,” it is not sufficient for the indictment to charge that it was done “feloniously and unlawfully,” or “feloniously, unlawfully and willfully these latter terms not being synonymous, equivalent, of the same legal import, or substantially the same as “ willfully and maliciously.”</p> <p>Defective description of the offence charged is not one of the points in which an indictment is cured by a verdict, but the same is equally fatal upon a motion in arrest of judgment, as upon demurrer, or a motion to quash.</p> <p>Where an offence, as described in the indictment, is punishable at common law only, although the indictment aver it to have been committed against the form of the statute, the conclusion may be rejected as surplusage, and the indictment be good as for a common law offence.</p> <p>But when, what was a misdemeanor only at common law, is made punishable as a felonj- by statute, or where the statute declares a common law offencej committed under peculiar circumstances and with a particular intent, not necessarily included in the original offence, punishable in a different manner from what it would be without such circumstances and intent, an indictment for the statute offence, bad as such for insufficient or defective description, will not be good at common law.</p>

<p>Where a husband deserted his wife in Massachusetts, where they had previously resided, and, though able, made no provision for her support, and the wife removed to this State, and always afterward resided here, and such desertion continued for three years, the time required to constitute a cause of divorce, after her removal, a divorce will be decreed.</p> <p>The same rule was held applicable in case of abandonment and refusal to cohabit.</p>

Indictment, alleging that the defendant, at Rochester, October 13, 1356, did unlawfully, willfully and maliciously shoot, kill and destroy a certain dark brindled dog, of the value of fifty dollars, the property, and part of the personal estate of one Daniel McDuffie, and then and there having around his neck a collar of brass, with the name of his aforesaid owner engraved thereon; and that by the shooting, killing and destroying said dog as aforesaid, the personal estate of…

Indictment for perjury. The indictment alleges that on the sixteenth of September, 1854, a libel for divorce was filed with the clerk of the Supreme Court of Judicature for the county of Strafford, by the defendant, against Jane C. Langley, then his wife ; that the justices of said court, at the term thereof held at Concord, on the second Tuesday of December, 1854, duly appointed Charles H. Bell, commissioner, to take the testimony to be used in the hearing of said libel,…

<p>Where the undertaking by a guarantor is absolute, notice is unnecessary ; but where it is collateral merely, notice must be given within a reasonable time, otherwise the guarantor will be discharged; unless he he not prejudiced by the want of notice.</p> <p>The defendants gave to the plaintiff a guaranty stating in substance that they were acquainted with the principal, and reposing confidence in his honesty, would hold themselves hound for such goods as the plaintiff should entrust him with, provided he should sell them and abscond with the money or squander them. Held, that the guaranty was'a conditional one, and that the defendants were entitled to notice. Held, also, that the defendants were not chargeable unless it should appear that the principal absconded with the money, or squandered the goods; and that neglect to pay a balance did not show a squandering.</p>

<p>The sale, by the administrator of a solvent estate, of the land of his intestate under a license from the court of probate, gives no title or color of title to the purchaser, unless it be accompanied by a deed of conveyance from the administrator.</p> <p>Evidence that the administrator entered into the possession of the land upon a sale under his license, at which the land was struck off to himself, that he considered himself the owner, had the land surveyed and the lines around it marked, let a neighbor mow over a part of it, and cut three or four pine timber trees upon it, during an occupation of about three years, is not evidence of that open, notorious and exclusive possession, marked by definite boundaries, which is necessary to render it adverse to the title of the legal owner.</p> <p>A widow, who, having right of dower in the land of her deceased husband, continues to live upon it with her infant children, the heirs at law, or enters and takes possession after his decease, and lives upon it with the infant heirs, is presumed to hold the possession for her own benefit in reference to her dower only, and for the infant heirs as their natural guardian.</p> <p>If the widow contracts a second marriage, the joint possession 'of herself and husband, while the infants continue to live with them upon the land, is presumed to be for the same purposes as if she had continued sole — if her second husband claims no other rights in the land than such as he may be entitled to exercise in the right of his wife, by virtue of the marriage; and such possession by the mother, while sole, or by the husband and wife, after the second marriage, can never be adverse to the title of the infant heirs, whatever may be the circumstances attending the possession, unless they amount to an actual ouster of the heirs, and in fact exclude them from the land.</p> <p>The administrator of an estate administered as solvent, at the sale under his license bid off the land himself, entered upon and kept possession of it about three years, without deed or writing, except a memorandum of the sale, signed by the auctioneer, considering himself the owner, and exercising acts of ownership. By agreement between himself, the legal guardian of the heirs, and the widow, their mother, with the consent of her husband, she having contracted a second marriage, the administrator, by a deed in his private capacity and not as administrator, conveyed the land to the infant heirs, in consideration of the indebtedness of the estate to the mother, for the support of the infant children under seven years of age, and of a sum which had been agreed to be paid to her by the administrator, with the consent of the legal guardian in lieu of dower; — it being intended and understood that the deed given to the infants should be for the use of the mother, and that the land should belong to her. The mother and her husband, with the infant heirs, as part of their family, entered after the conveyance from the administrator, occupied the land, claiming it as hers, built a house upon it, and exercised ownership during the life of the husband, and the widow subsequently during the minority of the heirs. — Held, that the deed from the administrator was to he considered as confirming the title of the heirs, and not as adverse to it, and that the .mother could not be permitted to set up her supposed equitable title under it as cestui que trust, as color of title, to qualify the possession so as to render it adverse to the title of the infants as heirs at law.</p>

Assumpsit. The writ was dated October 4, 1852, The declaration contained two counts, one on an account annexed, consisting of a single item of $18.18, for “ one single harness,” charged as sold by the plaintiff to the defendant, March 28, 1852 ; the other for $20.00, money had and received.

Appeal, taken March 31, 1855, by George W. Piper, executor of the last will of Francis Piper, late of Tuftonborough, deceased, from a decree of the judge of probate for this county, made March 6,1855, allowing to the appellee, Abigail Piper, widow of said Francis, out of the personal estate of said deceased, the sum of two hundred and fifty dollars, for her present support. Two reasons of appeal are set forth by the appellant: 1.

<p>A mortgage of personal property contained no clause entitling the mortgagor to retain possession. The mortgagee took possession of the property, and, the condition being broken, sold it, but not in the manner prescribed by statute. — Held, that the mortgagee had the legal title, and was rightfully in possession ; that the mortgagor, having neither the property nor any right of possession, but a mere right to redeem, could not maintain trespass. The sale was not by virtue of any authority in law, the abuse of which would make the mortgagee a trespasser ab initio ; and the title of the mortgage was not forfeited by a sale, though wrongful, as that of a mere bailee might be. The remedy of a mortgagor in such a case must be an action on the case.</p> <p>The statute forbidding a second mortgage without a reference in it to the first,1 does not make the second mortgage void ; because the statute is designed to secure the rights of the second mortgagee, and the parties are not in pari delicto.</p> <p>An assignee of the mortgagor has no greater rights than his assignor.</p>

<p>The judgment of the court of common pleas, upon the report of a committee appointed under the provisions of chap. 37, sec. 6, of the Revised Statutes, which empower that court to establish the disputed boundary line between two adjoining towns, is a judgment in rem, and conclusive upon all persons.</p> <p>The effect of such judgment is not merely prospective. It is an adjudication not only of where the line is, but where it always has been, since it was established by the incorporation of the towns; and is therefore conclusive upon the parties in a suit against one of the towns, pending when the judgment was rendered, and in which is involved an inquiry into the true location of the boundary.</p> <p>The proceedings of the selectmen of the adjoining towns, in perambulating the line and renewing the marks and bounds, are not conclusive evidence of its true location.</p>