Volume 35 — New Hampshire Reports

Replevin, for a stock of goods. Pleas, non cepit, and issue thereon; 2d, that the goods were the property of one Brown ; that Brown was indebted to Fairbank & Co.; that the defendant was a deputy sheriff, and attached them as Brown’s property, on a writ against him in favor of Fairbank & Co., concluding' with a prayer for damages and costs.

Indictment eob, AdulteRY, containing two counts. The first count alleged that the defendant committed the crime with Catherine Burt, wife of Harmon Burt, on the fifteenth of October, 1853. The second count alleged that he committed the same crime with Catherine Burt on the twenty-fifth of November, 1858.

<p>When a verdict is directed by the court against a party, and there is evidence introduced by such party, competent to be considered by the jury, and having a tendency to sustain the issue on his part, the verdict must he set aside, even though the evidence he slight.</p> <p>Where the defendant made a contract with D. & H., who were in partnership, to do his blacksmith work, and to pay for the same in specific articles, and after, wards the partnership was dissolved, hut D. continued to do work in the shop as formerly, and the defendant, without any knowledge of a dissolution of th e firm, or any notice of a termination of the contract, came and had work done, — held, in an action by D. for the work done by him, that these facts were competent to go to the jury as tending to show a defence.</p>

Debt for a penalty on sec. 6, chap. 1518, statutes of 1854. The declaration alleged that the defendant, a minister of the gospel, unlawfully joined in marriage one Parker Coombs and one Jane P. Wood, who was the plaintiff’s daughter; said Coombs and Jane being both residents of Rindge, in said county, which had a town-clerk, no certificate of intention of marriage by said town-clerk having been received by the defendant.

<p>Under the description in a deed of “ a certain dwelling-house, being the same in which I now live, and is the same owned by E. W.,” the land in rear of the house, used by E. W. and the succeeding owners and occupiers in connection with the house, for the purpose of a wood-yard, and essential to its convenient enjoyment as a dwelling, passes, as incident to and a part of the house.</p>

On the 15th day of August, 1854, Smith, the appellee, was appointed guardian of Twitchell, the appellant, as a spendthrift; and on the 5th of September following returned an inventory of his estate. On the 24th of November, 1855, the guardianship over the appellant ceased by decree of the judge of probate, and on the 18th of December, 1855, the account of the appellee as guardian was settled in the probate court, and a decree passed.

<p>In an action against a town for an injury resulting from an alleged defect in a highway, on account of the slippery condition of the side-walk from ice, evidence that other persons than the plaintiff, in passing upon the side-walk, had met with difficulty at the place of the accident, and had slipped there, is inadmissible for the purpose of showing that there was a defect in the sidewalk.</p> <p>The side-walk in question was constructed with a step from it down to a passage way, crossing it at right angles, and another step on the opposite side of the passage way, from that up to the side-walk beyond, and with a slope each way from the middle of the side-walk to the right and left, where it crossed the passage way. — Held, that evidence was inadmissible for the defence, tending to show that side-walks, similarly constructed, were common in Boston, and other cities, either for the purpose of showing that the side-walk was properly constructed, or that the plaintiff did not exercise proper care and prudence in passing upon it.</p> <p>In reference to the degree of care and prudence to be exercised by the traveller in passing upon a highway, the jury were instructed that “ if the highway were defective, and the plaintiff knew of the defect, yet, if it were not of a character from which an injury must so manifestly result in his attempt to pass, as to render it unreasonable for him to make the attempt, he was entitled to recover, otherwise not.” — Held, that the instructions were erroneous, and that the jury should have been instructed, in substance, that if the defect were such that men of ordinary care and prudence, having knowledge of the defect, would not, under ordinary circumstances, have attempted to pass at their own risk, the plaintiff had no right to try the experiment at the risk of the town, and was not entitled to recover.</p> <p>The jury were further instructed, that “ the town was bound at all times to have their highways in a reasonably safe condition for the customary travel, and that it would furnish no answer to the claim of the traveller for damages, who should suffer an injury resulting from a defect in the highway, without fault on his part, that the defect was produced by the elements, and the town had no notice of it, or opportunity to repair it.” — Held, that the latter branch of the instructions was erroneous, and that the jury should have been instructed that if the injury resulted from a defect occasioned by the recent sudden action of natural causes, the town was not liable, unless, under tho circumstances of the case, they ought to have repaired the defect before the accident happened, and had reasonable opportunity so to do; and if they could have had no notice of it, either express or implied, or reasonable opportunity to repair it, the defect was not an obstruction, insufficiency, or ■want of repairs, within the meaning of those terms as used in the statute, giving to travellers a remedy against the town.</p>

This action is case, for an injury received by tbe plaintiff, by reason, as be alleges, of an obstruction in a highway.

This case having been before the Supreme Judicial Court upon the merits, at the June term, 1856, is reported 84 N. IT. 102. It was a petition to redeem certain premises held by the petitionees as assignees of the mortgagee.

Aubitor’s Report, a copy of which is made a part of this case. The plaintiff moves that the report be recommitted to the auditor, for the purpose of being amended, by striking out all except a statement of the accounts, including the finding that there was a tender. REPORT.

<p>An individual cannot be made the grantee of land without his consent, and a refusal to accept a grant may be shown by parol evidence.</p> <p>The wife of a grantor is not a competent witness to attest his deed.</p> <p>The proprietors of common and undivided lands may divide the same among themselves by metes and bounds, and lots and ranges. They may make partition. either by a vote or deed, or they may convey then undivided interests without partition.</p> <p>If a party is present and sees another sell and convey property, whether real or personal, to which he may assert a title, without disclosing his title, or objecting to the sale or conveyance, and the sale is made with a full knowledge on his part, he will be estopped by his silence from thereafter setting up his title against the purchaser. And this principle may be carried out at common law without resort to equity.</p> <p>Estoppels are binding upon parties and privies; privies in blood, privies in estate, and privies in law.</p> <p>The proprietors of a common and undivided tract of land attempted to make partition of the same by lots and ranges, but failed to do it legally. Each of them afterwards made conveyances by lots and ranges, according to the partition, but subsequently conveyed the tract to others by giving deeds of their undivided interests. — Held, that those claiming under the deeds conveying the undivided interests, were estopped from denying the partition as against those who held title under the deeds conveying by lots and ranges.</p> <p>A plan was made of a tract of land, of which the corners were given, dividing the tract into ranges and lots, but the lots were not laid off upon the ground. Conveyances were made by ranges and lots, according to the plan. — Held, that, the corners of the tract being given, the lots could be run out according to the plan, and that the deeds were not void for uncertainty.</p>

Covenant broken. It is alleged in tbe declaration that the defendant, on the 7th of October, 1854, at Rumney aforesaid, by his deed of that dat.e, duly executed, acknowledged and registered, and in court to be produced, for the sum of nine hundred dollars, bargained and sold to the plaintiff a certain piece or tract of land, situate in said Rumney, on the south side of Raker’s river, on the main road from Rumney to Wentworth, and is the part of the William Webber farm,…

Petition for a highway in Landaff, stating that a petition had been presented to the selectmen of that town to lay out said highway, and that they had neglected to lay the same; the petition being in the usual and proper form in such cases. The petition was filed in the clerk’s office on the 14th of February, 1856, and notice of the same duly given.

Petition for tbe assessment of damages to land-owners by tbe laying out of tbe petitioners’ road.

<p>Real estate was devised to L., A. & I., on condition L. & A. take I., and carry on his part, and see that he has his support out of it during his life. A. conveyed to L., and L. conveyed the whole property to the defendant without any exception of I.’s title, and the defendant thereupon entered and occupied the whole from 1837 to 1847. Neither L., A. nor the defendant did anything to support I. The defendant, in 1846, brought an action against H., on the covenants in his deed assigning as the breach, I.’s title to one third, and recovered one third the consideration paid and interest; and in 1847 one third of the property was set off to I. in severalty, by decree of the Probate Court, on due notice, and no appeal was taken; and I., by his guardian, then entered and has since had possession, and this action is trespass for the mesne profits from 1837. — Held,</p> <p>1. Nothing passed by L.’s deed but his own and A.’s share, because:</p> <p>2. The proviso in the deed was not a condition, but a conditional limitation, by which L. and A.’s right of possession ceased on their failure to support I., without entry or claim.</p> <p>3. The defendant, by his action upon the covenants in his deed, had repudiated any interest in I.’s third, and was barred to claim any interest in that third.</p> <p>4. That by the partition and assignment to I. of one third in fee, not appealed from by L., A., or the defendant, I. took an unencumbered fee, and the rights of L. and A., if they had any under the devise, were extinguished.</p> <p>5. If the defendant entered under a deed of the whole, claiming the whole, and denying the right of I., it was a disseizin of him, and he could, after entry, maintain trespass for the mesne profits.</p>

Is this and three other cases Messrs. Benton and Bellows, counsel for Russell, moved in the Court of Common Pleas that a special commission may be granted to take the deposition of Noah Burnham, of Concord, to be used in those cases in which he is a material witness, and that the commissioner be empowered to compel the attendance of the witness for that purpose.

Debt upon a judgment recovered at tbe Court of Common Pleas for the County of Cobs, at the May term, 1854. The suit in which said judgment was rendered was a trustee suit, and Hiram A. Fletcher, the trustee, was indebted to said company in the sum of three dollars and twenty-five cents, and his fees as trustee in said suit amounted to a larger sum than that, and no service was made of the writ in said original suit, but upon said Fletcher as trustee.

Case. The declaration alleged that on the 1st of April, 1854, at, &c., the plaintiff was possessed of a close in Milan, and the defendants were in possession of a railroad, passing over and across said close, and the corporation, by reason of said crossing, ought to have erected and maintained a sufficient and lawful fence on each side of their railroad against the plaintiff’s said close, to prevent cattle lawfully feeding or depasturing, or being in said close, from…

<p>.A plea in abatement for a defect in the service of a writ by copy must crave oyer of thé writ, declaration and officer’s return, set them out at length, and also make profert of and enrol the copy served. Unless the copy be enrolled and made part of the record, there is nothing in the record to confirm or refute the allegations of the plea, and show whether the officer’s return is true or false; and consequently no basis for a judgment of the courts upon those allegations.</p>

<p>The statute de donis was impliedly repealed by the statutes of 1789, and consequently estates tail no longer exist in New-Hampshire.</p>

Assumpsit, for money paid, laid out and expended, for money had and received, and for interest on money due. Plea, the general issue. The plaintiff was one of the selectmen of the town of Henni-ker, for the year 1846, and acted as such in the assessment of the taxes for that year, in conjunction with Parrott Marsh and Jeremiah Foster, the other selectmen.

In debt on bond there were two pleas. The bond and condition were united upon oyer, and an agreement to extend the time of mating the award.

INDICTMENT for selling one gallon of spirituous liquor, without license, to James Cate, on tbe 15th of August, 1856. Tbe evidence went to show that tbe defendant was tbe wife of Malaebi Haines, and that she sold tbe liquor in her husband’s bouse, but not in bis presence.

<p>Upon the presentation of a petition for a highway in two or more towns, the court will not, prior to the reference of the petition to the commissioners, en-quire into the fact whether the object of the petitioners be not to obtain a road in one town alone, and thus the statute be evaded, requiring such petitions to be first presented to the selectmen.</p> <p>Such fact is a question for the decision of the commissioners, and if made to appear by their report, it will be fatal to the proceedings.</p> <p>Upon a petition for a new highway, selectmen and road commissioners may lay out a road in part new and in part over and upon an existing highway.</p> <p>The report of commissioners/laying out a highway over a road that had previously been discontinued, need not state any change of circumstances as having occurred after the discontinuance.</p> <p>In deciding whether the public good requires that a highway he laid out, it is proper that individual advantages, going to make up the public, should be considered by the commissioners.</p>

INDICTMENT, for selling intoxicating liquor, in violation of the provisions of the act of July 14,1855, entitled “ an act for the suppression of intemperance.” The indictment contains two counts.

The rum in question was seized by virtue_of a warrant issued upon the complaint of the city marshal of Concord, alleging that it was kept with intent to sell, contrary to the provisions of the act of July 14,1855, entitled an act for the suppression of intemperance, and praying that it might be decreed to be forfeited.

<p>In trespass for tile sale of property taken and sold on process, and bid in by the plaintiff, or for his benefit, the rule of damages is the amount paid, with interest, and the damages for the taking and detention, if any such are proved.</p>

<p>The selectmen of a town are liable to indictment and fine for neglecting- to appoint an agent for the sale of spirituous liquor for use in the arts and in medicine, according to the statute of 1855, for the suppression of intemperance.</p>

In Equity. The bill was filed at the July term, 1855, against the defendant, Barr, as executor of the last will and testament of James McK. Held: occupied, possessed and enjoyed by said Wilkins and the complainant in common, and that both should share equally in all the income and profits that should be derived from said real estate, and in all the proceeds that might he received from the sale of any portion thereof, and that both should contribute equally to the payment of…

The writ was dated March 28, 1853, and contained four counts. Three of them were in trover for the conversion of certain buildings.

<p>The fact that a plaintiff is a trespasser, or violator of the law, does not of itself discharge another from the observance of duo and proper care towards him; neither will it necessarily preclude him from a recovery against a party guilty of negligence.</p> <p>Where a traveller, driving in the night, and exercising all the care and caution of which the circumstances admitted, by accident drove his carriage to the left over the centre of the travelled path, in consequence of which he came in collision with an approaching carriage, and was forced off a bridge which had no sufficient railing, the town was held liable.</p>

<p>The neglect of the petitionee in a petition for partition, pending in the Probate Court, to make any question about the title until after the appointment of the committee to make partition, is a waiver of the question, and it is then too late to dispute the title set forth in the petition, so as to oust the Probate Court of jurisdiction.</p> <p>By the provisions of 206 of the Bev. Stat., the committee appointed to make partition are to be sworn before proceeding to a hearing of the parties in the case of proceedings pending in the Probate Court us well as in the Supreme Court. If not so sworn, the report of the committee will be set aside and a new committee appointed.</p>

<p>Where it distinctly appears that a trial has not been had, by reason of accident, mistake or misfortune, the court will generally grant a review without inquiring into the merits of the controversy between the parties, if satisfied that n matter of controversy actually exists, which the party claiming the review desires and intends to try, and would before have tried, but for the accident, mistake or misfortune shown.</p> <p>Ia petitions for review or new trial, costs will ordinarily follow the event of the suit, as in other cases.</p> <p>Where an injunction has been issued to prevent the completion of the levy of an execution against one charged as trustee upon default, the ease will be retained after a new trial has been granted the trustee, for the purpose of controlling the injunction and of determining the ultimate question of costs.</p>

PETITION for leave to appeal from the decree of the Judge of of Probate for this county, refusing to grant the prayer of four several petitions of the petitioner, filed in the Probate Court against the several petitionees respectively. Those petitions were filed at the July term, 1856, of the Probate Court for this county, and an order of notice issued, after which they were continued from term to term until November term, 1856, when they were dismissed.

Petition for the discontinuance of a highway, by the town of Goffstown, in the county of Hillsborough, and the town of Dunbarton, in the county of Merrimack. The petition was entered at the April term of the Common Pleas, 1856, and, no one appearing to oppose the same, was referred to the commissioners of the counties of Hillsborough and Merrimack, in which the highway is situated.

<p>Where one agrees as guarantor that the principal shall pay a debt within a specified time, and the creditor draws a bill for the amount on the debtor, payable to a third party, at a given day within the time specified, if the payee and holder of the bill neglect to present it to the drawee for payment, the guarantor is discharged from his liability.</p> <p>If one is indebted for work and labor, and is summoned in a process of foreign attachment as trustee of his creditor, in a suit where the real demand against the principal defendant exceeds in amount the debt due to him from the trustee ; and the trustee, pending the foreign attachment, agrees with the principal defendant to pay for him, toward discharging the debt due to him from the trustee, such of the principal’s debts as he may designate, to a limited amount, provided the payment of the debts so designated should not be incompatible with the trustee’s liability in processes of foreign attachment, the trustee is not bound to pay any designated debts of the principal while the foreign attachment is pending, unless it be the debt sued in that process.</p>

<p>It is no objection to an interrogatory to a witness, that it assumes facts which are not disputed; nor that it puts a hj’pothetical case to an expert, if the supposed case is that which is put in evidence.</p> <p>An interrogatory, not objected to when a deposition is taken in presence of the adverse counsel, can not be objected to at the trial.</p> <p>It will not be assumed that a witness does not know the place of an accident, because he says he was not present.</p> <p>Copies of town records are admissible in evidence; and if words are worn out, or illegible in the original, blanks should bo left, and the reason added in a note.</p> <p>Votes in ancient records of a town are presumed to have been regularly passed, though no record of a warrant or notice is found.</p> <p>Titles of most lands in the first towns in New-IIampshire were derived from the towns.</p> <p>Reputation is competent evidence of the laying out of ancient highways. 'Such are recitals in ancient records and grants.</p> <p>A former failure of a culvert may he evidence of defective construction, and of the knowledge of the fact by the town authorities.</p> <p>Ancient user is evidence of a public highway, and of its limits; and ancient repairs, of the obligation of the town to repair.</p> <p>Towns are not generally bound to make the whole that is laid out as a highway passable, but if an obstruction out of the traveled part renders the road unsafe, the town will be liable unless they make proper safeguards or railings.</p> <p>Towns are liable for defects in their roads, or obstructions so near as to be dangerous, when erected or made by others, and must seek their remedy against those who caused the defect or obstruction, except where a railroad has necessarily created a danger which the town can not obviate.</p> <p>The want of a safeguard against a danger near a highway, may be alleged as a defect in the road.</p>

IN Equity. The bill charges that the defendant, Jeremiah. Johnson, being the owner of a certain lot of land, together with the rope-walk and machinery pertaining thereto, and other buildings thereon, situated in Portsmouth, on the first day of October, 1850, mortgaged the same to one William B. Yincent, with a condition to pay to Yincent, his heirs or assigns, the sum of $1,644.78, according to the tenor of Johnson’s note for that sum, dated the same day, and payable to…

<p>A policy provided that the insurance should be void if there should be any other insurance on the property, without the consent of the directors indorsed on the policy. At the time of the application the property was insured in another office, by a policy with a similar provision, and it was understood that the old policy should continue until the new one was obtained, and that it should be then surrendered. 'The new policy took effect January 22, 1849, and upon its receipt the old policy was surrendered, to take effect at the same hour, but was not discharged in the office till February 1. In an action for assessments on the new premium note, it was held, that this policy was not wholly void for want of an indorsement, but was capable of confirmation by the company, and that a letter of the Secretary, declaring the policy good after he was informed of all the facts, and a subsequent claim and acceptance of an assessment, were each a waiver of the exception, and a confirmation of the policy.</p> <p>It was also held, that the surrender of a policy, to take effect at a fixed date, discharged all claim of the insured from that date, without regard to the time it is discharged by the company.</p> <p>The policy once attached is a valid consideration for the premium note, which remains in force, notwithstanding the release or discharge of the policy, till the discharge is communicated to the office, and the assessments and dues are paid.</p> <p>Though a policy is, by its terms, to take effect at a certain time, yet it may be shown that, from want of delivery, failure to comply with some condition precedent, or other cause, it did not take effect till a subsequent time.</p>

<p>The Supreme Judicial Court, as a court of equity, has full chancery powers, and will administer relief in all cases falling within equity jurisdiction, where the statutes of the State have not pr&vided other means of redress.</p> <p>Equity will not be ousted of its jurisdiction because the courts of law have adopted equitable principles.</p> <p>A court of equity will not take jurisdiction in the matter of an account, where the accounts are all on one side, and no discovery is sought or required.</p> <p>A bill in equity can not be upheld against executors or administrators, merely upon the ground that they hold the estate of the deceased in trust; but a special case must be shown, calling for equitable relief.</p> <p>The complainants, six in number, signed a joint and several note with four others, for $10,000, and paid the note. Two of the four paid to the complainants their proportion of the note, and one of the remaining two deceased, leaving the defendants as his executors and residuary legatees. Upon a bill filed against the defendants for contribution, it was held, that, notwithstanding the complainants had a remedy at law, yet the bill might be maintained, the subject matter being within the original jurisdiction of equity, and a multiplicity of suits being prevented by the bill.</p>

Weit or Ehtry on a mortgage. Plea, the general issue. The plaintiff offered in evidence the mortgage deed declared upon, which contained two pieces of land lying in Plaistow.

Case. A copy of the declaration is annexed, and makes a part of this case. Plea, the general issue.

<p>An order of re-commitment or transfer may properly be made in vacation, when the parties do not insist upon a final disposition of the questions raised during the term.</p> <p>Where a road-petition described one terminus of the route as “ northerly” of a certain monument, and the report of the commissioners described the corresponding terminus of the road laid out as “ north-easterly” of the same monument, held, no variance.</p> <p>It is no objection to the validity of a judgment establishing a highway, that the time, fixed by the commissioners for the construction of the road laid out, had expired before the acceptance of their report.</p> <p>The proceedings of the Court of Common Pleas, establishing a highway, cannot be called in question collaterally for any want of regularity therein, but are valid until reversed or set aside upon certiorari. If want of jurisdiction be apparent on the face of the proceedings, it may be taken advantage of at any stage; if not thus apparent, the objection must be taken before reference of the petition, or it will be regarded as waived.</p> <p>The allegations of a road petition, essential to the jurisdiction of the commissioners, are to be taken as true, if not controverted at the proper stage of the proceedings, which is before reference of the petition.</p> <p>The Court of Common Pleas having full and complete jurisdiction on the subject of highways, if the record shows upon its face a proper exercise of their authority, evidence aliunde will not be received to oust them of their jurisdiction in respect to any judgment establishing a highway.</p> <p>Selectmen have no authority to lay out a highway without a petition for that purpose, and if they proceed to lay out under instructions from the town, their proceedings are invalid.</p> <p>If the public have no means of access and no occasion by and upon which they can use a new highway, it is no nuisance for the town in which it is located not to build and keep it in repair.</p> <p>A verdict will not be set aside upon a point not raised on the trial, although it may properly arise upon the evidence reported.</p>

<p>When the trustee, iu a process of foreign attachment, dies pending the suit, and his estate is represented insolvent, the plaintiff, in virtue of the lien acquired by the trustee process, is entitled to present the claim in favor of the principal defendant, on accpunt of which the trustee is summoned, to the commissioner of insolvency for allowance, and to appeal from the decision of the commissioner disallowing the claim, notwithstanding the principal defendant has presented the claim and taken an appeal. If more than one appeal be entered at the trial term, the several entries will be consolidated upon the docket, and each party appealing will have the right to try the question against the administrator, under the rules of law upon the evidence applicable to his particular case.</p>

Weit OE Eistrt, counting on a seizin in fee and in mortgage of land in Rochester. The demandant produced in evidence a mortgage of the demanded premises, from Jacob McDuffie and wife to the demand-ant, dated October 10,-1850, and recorded October 11, 1850, conditioned for the payment of a promissory note of the same date for $600, payable to the plaintiff in six months from date; and a note, corresponding to that described in the mortgage.

<p>A confession is an admission of a cause of action, to the extent of its terms only.</p> <p>In questions relative to distances, and the dimensions and quantities of things, a witness can not testify without an implied expression of opinion, and no objection can be sustained on that account.</p> <p>A common carrier is not liable for the whole value of property damaged by his want of care, so long as its character is not so changed but that it may be applied to the ordinary uses of such property, though he will be answerable for the depreciation in its value by reason of its being rendered unfit- for some particular uses.</p> <p>It is not amiss for a judge to state the rule of damages in cases having some resemblance to that before him, in order to suggest that they do not apply to that case.</p>

<p>In an action against a deputy sheriff for neglecting to levy an execution, evidence that the party in interest, having authority to control the execution and direct the levy, delivered to the defendant a bond of indemnity against liability on account of levying, and also ten dollars, as his fees for making it; which were received by the defendant without objection; and at the same time requested the defendant to levy on certain designated property, is competent to be submitted to the jury as evidence of the fact that the execution was placed in the hands of the defendant for service. When the bond and money were delivered to the defendant, he was informed that the property on which it was to be levied, was certain machinery in a mill, near the dwelling-house of the creditor, but at the distance of some miles from the dwelling of the defendant, and that if he would call at the house of the creditor when he came to make the levy, the particular articles on which it was to be made would be pointed out to him. —Held, that this was a sufficient designation of the property, unless it should be made to appear that the defendant called at the house of the creditor for the purpose of having a more specific designation, and the creditor failed to make it.</p> <p>A witness testified upon the trial that he did not know whether he was interested in the suit or not; that he owned the note on which the execution was founded; that the suit on the note was brought by his direction in the plaintiff's name as indorsee, with his consent, against the principal alone, one M. being surety upon it; that the witness had agreed with M. that he might manage the suit upon the note, and the judgment and execution which might be recovered therein, in his own way, as the witness looked to M. alone for his pay, and was sure of it from him; that M. had taken the direction and control of the suit on the note, and of the execution which issued therein; had instituted this suit in the plaintiff's name by the consent of the witness, and had agreed to conduct it at his own expense. — Held, that upon these facts the witness had no interest to exclude him from testifying for the plaintiff.</p> <p>The creditor of a late copartnership, who declares against the surviving partner, as upon a debt contracted by him solely, and not against him as such survivor, is not entitled to have his execution levied upon the property which belonged to the partnership, and came to the debtor by reason of his survivorship, in preference to other creditors whose debts were contracted by him solely, and who have earlier attachments ; and a creditor of the survivor for a debt contracted by him solely, having declared against his debtor as surviving partner, and as upon a joint debt of himself and his late partner, and obtained judgment thereon, is entitled to such preference in the same manner as if his debt had been contracted by the partnership. As to the different classes of creditors having conflicting claims to the property under their respective attachments, and as between them and the officer levying the execution, the judgments are to be considered conclusive.</p> <p>The property of the partnership remains, subject to the preference of the partnership creditors, notwithstanding the survivor may have managed and treated it as his own, with the assent of the administrator of the deceased partner, and may have contracted debts upon the credit of the property.</p>

<p>The return of the levy of an execution upon real estate is conclusive against all the world as evidence that thereby, as between the parties, the title of the debtor in the estate levied upon passed to the judgment creditor.</p> <p>Evidence to contradict the levy, as effectual between the parties to pass the title of the debtor in the property levied upon, will not be received.</p> <p>A conveyance of real estate, absolute in its terms, but made for the purpose of securing a debt, with an agreement or understanding between the parties that the land is to be reconveyed upon payment of the debt and interest, is fraudulent and voidable, not only against existing creditors of the grantor, but against those who may have become such after its execution.</p> <p>Nothing but payment in fact of the debt, or a release by the mortgagee, will discharge a mortgage, where equity requires its continued existence.</p> <p>A subsequent security for a debt, of equal degree with a former, for the same debt, will not, by operation of law, extinguish it.</p> <p>Where the note, secured by a valid preexisting mortgage, is given up to the mortgagor, upon the execution by him to the mortgagee of a fraudulent conveyance of the premises, and the amount thereof included in the debt intended to be secured by the fraudulent conveyance, the original mortgage is not thereby extinguished or discharged; but when the fraudulent conveyance is avoided by the creditors of the mortgagor, the mortgagee is remitted to his previously existing legal rights under the mortgage.</p> <p>The avoiding of the fraudulent conveyance in such case prevents the purchaser from taking any thing by his fraudulent contract, and permits the creditors to take all their debtor fraudulently conveyed, and nothing more.</p> <p>The defence of usury is personal; and as against a subsequent purchaser only the amount of illegal interest is to be deducted from the amount due upon a mortgage.</p> <p>Upon the decease of an intestate, and the granting of administration, his personal estate, and all contingent as well as absolute interests therein, vest in his administrator, and he may assign a chose in action by a proper instrument for that purpose, without license. A mortgage is a mere incident of the debt, assignable in the same way as the debt itself.</p>

Appeal, from a decree of the judge of probate for this county, granting to the appellee as executor of the last will and testament of Rachel Tilton, deceased, license to sell the real estate of said testatrix to pay the expenses of administration, amounting to about seventeen dollars. The decree appealed from was made on the twenty-first day of October, 1856.

<p>If a payment is made generally to a party who holds a debt due to himself, and another due to himself and the plaintiff, he is bound, as between himself and the plaintiff, to apply the payment ratably upon the two debts.</p>

<p>In indictments for misdemeanors, it is generally sufficient to describe the offence in the words of the statute.</p> <p>An indictment charging the illegal sale of two glasses of intoxicating liquor, is sufficiently definite and certain, under the statute prohibiting the unauthorized sale of spirituous and intoxicating liquors.</p> <p>Whether a glass is understood to mean precisely half a gill, or the quantity usually contained in a drinking glass as a single draught, it is sufficiently definite and intelligible as a description of quantity, under a statute which makes the sale of any, (the slightest quantity) penal.</p> <p>Where the same offence is described in different counts, it is not necessary to allege the offence described in each of the several counts to be other and different from that described in the others.</p>

<p>In an indictment for selling spirituous liquor without license, if the sale was made to one who acted in the purchase as agent of the buyer, it is sufficient to allege the sale to have been made to the agent.</p>

Writ of Entry. Plea, nul disseizin. The canse was committed to a commissioner, who made report in substance as follows : Both parties claimed title in the demanded premises under one Daniel Hawkins. On the 24th day of August, 1855, the said Horace Chapin, for himself and Ann, his wife, who was a grand-daughter of Hawkins, and heir at law to one eighteenth part of his estate, duly entered upon and claimed the demanded premises in her right.

<p>A discharge, under the insolvent laws of Massachusetts, is no bar to a suit upon • a judgment rendered in Massachusetts against citizens of that State, in favor of those who have ever been citizens of Maine, upon drafts or bills of exchange drawn by the plaintiffs in Boston upon the defendants in Boston, and by the defendants there accepted, payable generally to the order of the plaintiffs, but not paid, although obtained after the rendition of that judgment.</p> <p>The rights and liabilities of the parties are in no way changed by the conversion of the original indebtedness upon drafts or bills of exchange into a judgment.</p> <p>The clause of the Constitution of the United States, prohibiting the several States from passing any law impairing the obligation of contracts, should he so construed as effectually to protect citizens of the United States, resident in any State, creditors of citizens resident in other States, against the operation of the insolvent laws of the States of their debtors, in all cases where their constitutional privileges have not been in some way wáived.</p> <p>If a discharge under State insolvent laws be holden effectual to extinguish all contracts made within the State between its own citizens, unless those contracts are negotiable, and by their express terms to he performed in other States, and, without being discredited, have been actually sold and assigned to citizens of other States prior to the proceedings resulting in such discharge; and if such, discharge be holden inoperative to destroy the obligation of contracts made within the State where it is granted, between citizens of that State and those of other States, unless the holders thereof have in some way waived their constitutional rights; and likewise inoperative to defeat contracts made and to be performed without the State, unless made and continuing to exist between citizens of that State down to the period of the proceedings resulting in such discharge; the true purpose and design of the constitutional inhibition will be accomplished, and the sovereignty of the States, so far as consistent with the Constitution, vindicated.</p>

Lx bul fob Divorce, filed November 28, 1856. The alleged causes set forth in the petition were, willing absence, from September 1, 1848, to the filing of the libel, without making any provision for the libellant’s support; abandonment, without cause and without consent, and refusal to cohabit from April 1, 1841, to the filing of the libel, and habitual drunkenness from November 1,1853, to the time of filing the libel.

<p>A committee, appointed by a school district according to the statute, to purchase and repair a school-house, are public officers, and a majority of them have authority to act for the whole.</p> <p>Whore a school district pass a legal vote to purchase a building for a schoolhouse, and raise funds for that purpose, and certain persons, acting as a committee of the district, make a bargain in behalf of the district for the purchase of the building at an agreed price, if the district afterwards take possession of the building and retain and occupy it for a school-house, in an action by the owner of the building against the district to recover the price, the defendants can not deny the authority of the committee to make the purchase, and are bound, in the absence of fraud or mistake, to pay the price agreed on by the committee, although they acted, in making the purchase, without any legal antecedent authority.</p> <p>In such case the district, by claiming and holding the building under the purchase made in their behalf, ratify the action of the committee, and are bound by the ratification, as in the case of natural persons.</p> <p>If the owner of a building, standing on land of another, sell it for an agreed price, and the purchaser take possession and hold the building under the sale, the seller may recover the price in general indebitatus assumpsit for goods sold and delivered.</p> <p>In such case no deed or other writing is necessary to convey the interest of the owner in the building to the purchaser.</p>

In Assumpsit, the plaintiff demurred to the defendant’s pleas, and the questions then raised were decided by the Superior Court. The decision is reported in 10 Foster 78, and the pleas are there set forth at length. The pleas have been since amended by leave of the court, as follows: 1. The averment, “ and said report was by said court duly accepted and ordered to he recorded,” is amended by adding, “ as the decision of the commissioners.” 2.

<p>In assault and battery, if the party'first assaulted uses excessive force beyond what is necessary for self-defence, he is liable for the excess, and the facts may bo shown under the replication of de injuria.</p> <p>A recovery may be had in cross actions for the same affray — by the assaulted party, for the assault and battery first committed upon him; and by fhe as-' sailant, for the excess of force used beyond what was necessary for self-defence.</p> <p>Where, under the act of 1852, an action against two or more defendants is referred to a commissioner to state the facts, the commissioner has no power to discharge one of the defendants, so as to make him a witness for the others.</p>

<p>■Where, on certiorari, founded upon a bill of exceptions filed in the Common Pleas, a judgment of that court is ordered to be quashed, if the merits of the cause remain undecided, the whole proceedings are not quashed by the order, but the cause remains for further action in the Common Pleas.</p> <p>Where exceptions are filed, which relate to the doings of the commissioners on a petition for a highway, and to the judgment of tlie Court of Common Pleas, accepting their report and establishing the highway, but which do not extend to the regularity and sufficiency of the original petition, if the Supreme Court, on certiorari founded upon the bill of exceptions, order the judgment of the Common Pleas to be quashed, the original petition for the highway is not quashed, but remains for further proceedings in the Common Pleas.</p>

<p>In an action on the case against a town to recover damages for an injury to the person of the plaintiff, caused hy a defect in a highway, it is not necessary that the declaration should set out the particulars in which the highway was defective ; it is sufficient to allege generally that the injury was caused by the defect, insufficiency, and want of repairs of the highway.</p> <p>Nor is it necessary that the injuries received by the plaintiff should be particularly described in the declaration. It is enough if it shows that the plaintiff received a bodily injury.</p> <p>If the declaration allege that the plaintiff and his child “ were thrown from Ms wagon with great force and violence, and he and the child greatly injured and damaged thereby/’ it will he taken, after verdict, as a sufficient averment that the plaintiff received a bodily injury.</p> <p>If in such case the declaration alleges that the injury was caused by defect of the highway, it is not necessary to aver that the plaintiff was himself in the exercise of ordinary care.</p> <p>Where the highway described in the declaration is alleged to he in the defendant town, it is not necessary to aver, in addition, that the part of it where the accident happened was in that town.</p> <p>If the declaration allege that the road was a highway which the town was hound to maintain, on the 8th of July, and at the time when the suit was brought, and that the accident happened “ on the said 8th day of July,” it is a sufficient allegation after verdict that the town was hound to maintain the highway when the accident happened.</p> <p>Travelling on Sunday, to make a social visit, is not within the statute which prohibits “ any play, game, or recreation,” on that day.</p> <p>In an action for a cause which is in its nature single and indivisible, if the defendant confess under the statute a certain amount of damages, and plead to the residue of the action, the confession is an admission of some cause of action corresponding with that laid in the declaration.</p> <p>If, on trial, after a confession in such case, the plaintiff introduces evidence corresponding with the cause of action laid in the declaration, and the defendant denies that the evidence relates to the cause of action which he has confessed, it may he left to the jury to find, as matter of fact, whether the cause of action to which the evidence introduced relates, is that which was declared on and confessed; and if they so find, the only remaining question will be one of damages.</p> <p>If the cause of action is single and indivisible, and the plaintiff, on trial, after such confession, introduces evidence corresponding with the cause of action laid in the declaration, and it is shown or admitted that the evidence relates to the same cause of action that was confessed, the only question for the jury is one of damages.</p> <p>If in such case the defendant denies that the evidence introduced relates to the cause of action which he has confessed, unless it appears that another cause exists, for which the plaintiff might recover on the same declaration, it may be left to the jury to presume that the cause of action confessed is that to which the evidence of the plaintiff relates.</p>

This is a writ of entry, to recover certain real estate in Ha-verhill. It was agreed that on the 5th of April, 1838, 0. S. Frary was the owner of said land, subject to a mortgage to S. Page.

Trustees’ DISCLOSURE. The disclosure denied expressly and unequivocally all indebtedness and all liability of the White Mountain Lumber Company, the alleged trustees, to or for the principal defendant, at the time of the service of the writ or since.

<p>Trespass will lie against one, who, having entered upon land under a contract to purchase it, neglects to perform his part of the contract, and cuts and carries away, and converts to his own use, timber therefrom.</p> <p>An agreement to purchase and convey, does not of itself amount to a license to enter upon land.</p> <p>Where, by the terms of the contract, the purchaser was prohibited from cutting timber, except to deliver in fulfillment of the contract of sale, the license implied thereby, that he might cut and deliver timber in fulfillment of such contract, is to be construed strictly, and any abuse of it makes the party a trespasser ob initio.</p> <p>The most that can be implied from such a contract is a permission to the purchaser to enter as tenant at will, and occupy the land in a reasonable manner, with authority to cut and deliver sufficient timber to enable him to perform his contract for payment, but not to commit any acts hostile to the interests of the vendor, or amounting to waste.</p>

In TRESPASS on the case, the plaintiff alleged that on, &c., at, &c., and since, he was seized of a meadow, &c., but the defendants then and there, in the construction of their railroad across said meadow, &c., so negligently, &c., constructed the said railroad, that for want of suitable care, &c., and by their neglect to provide sufficient water-courses for the water, which had always theretofore run naturally across said meadow, &c., the water then and there naturally…

Case, for not constructing an under pass for the accommodation of the travel on a public highway, in the town of Northum-berland.