Volume 36 — New Hampshire Reports

<p>In an action against a railroad by tbe husband to recover damages for an injury to tbe wife, caused by carelessness of tbe defendants in tbe management of their trains, damages may be recovered for loss of the wife's services, and for expenses incurred by tbe husband in her cure, after tbe commencement of tbe suit.</p> <p>In such case tbe actual expenses incurred by tbe husband, after tbe commencement of tbe suit, may be given in evidence to show the amount of bis damage.</p> <p>If the condition of tbe wife is such at tbe time of the trial as to disable her for tbe future, and require further expenses for medical and surgical treatment, the jury may give damages for prospective expenses and loss of service.</p> <p>Tbe jury may in their discretion give exemplary damages where a personal injury has been caused by tbe gross carelessness of a raih-oad in tbe management of their trains.</p>

<p>When the residence of a defendant, whose property is attached, is in this State, but unknown to the officer serving the writ, notice of the pendency of the suit may properly be given by publication in some newspaper, under an order of court.</p> <p>Such notice may be ordered and published at any time during the pendency of the suit.</p> <p>Where proceedings rest upon the provisions of a statute, those provisions must be strictly complied with, or the proceedings will be erroneous.</p> <p>Where a trustee discloses indebtedness upon negotiable promissory notes made and payable in this State, before he can legally be made chargeable, notice must be served on claimants of the notes, if known; or, if unknown, published in some newspaper, to any and all persons interested therein to appear and assert their right thereto.</p> <p>A judgment charging such trustee, without such notice having been served or published, is clearly erroneous and voidable.</p>

In Case. The plaintiff declares that the defendants, at, &c., before and on the first day of July, 1852, were common carriers of goods and merchandise, for all persons having occasion to employ them, from Barnet, in the State of Vermont, to a place called Fisherville, in Concord, in the county of Merrimack, and on said first day of July, 1852, the plaintiff, at said Barnet, to ■wit, &c., was possessed of one circular saw, of the value of sixty dollars, as of his proper goods…

Covenant broken, upon an agreement dated February 3,1854. The- defendant made a denial upon the docket of the execution of the agreement declared on, and an affidavit agreeable to the rule of court.

Case, for an injury sustained by the plaintiff, and for tbe loss of Ms horse and wagon, by reason of a defect in the public travelled road in the town of Northumberland. The facts in relation to the road are, that up to about fifteen years ago the road, in passing up the upper Ammonoosuck river, in Northumberland, towards Stark, was made and travelled on the hill land above the river.

In Equity. The facts of this case may be stated as follows: On the 14th day of January, 1842, one Lewis H. Masseure was the owner of one lot of land and part of another, situated in Stark, in this county, and on that day conveyed the same to one David Learney. On the same day Learney mortgaged the premises to Masseure, to secure the payment of two notes of that date, for $ 100 each ; and these notes remain unpaid.

<p>A new trial will not be granted on the ground of newly discovered evidence, unless it be made to appear probable that injustice has been done by the verdict, and that the newly discovered evidence is of such controlling character that it will probably correct the injustice upon- the new trial; nor unless it goes directly to the merits of the controvery, and not merely to contradict or impeach a witness; nor if it applies to a point directly drawn in question by the suit, but which was so far abandoned at the trial, and in the preparation for it, by the losing party, that all inquiry for evidence upon that point was waived by him.</p> <p>A verdict will be set aside on the ground of misconduct of the party, if, by his procurement or connivance, one who had knowledge of facts material to contradict one of the witnesses, is hired to keep out of the way, so that he may not be summoned by the other party.</p> <p>The vendee of property insured by a policy issued to the vendor, and assigned by him to the vendee, may maintain an action upon the policy for a loss, although the sale may appear to have been made with the intent to defeat the creditors of the vendor.</p>

<p>The petitioner for partition is entitled to recover costs, if he recovers all which he claimed npon the trial, though a larger share was claimed in the petition, if the other party was not misled or prejudged hy it.</p>

As agreement was filed in the case at the. trial term, signed by the county solititor and the attorney for the respondent, setting forth that the indictment then pending against, the respondent was for a simple assault on one Locke; that the complaint to the magistrate’s court for the assault alleged an assault with intent to kill, and that the facts in the case were as follows: Locke was a police officer of the city of Concord, and arrested the respondent in the highway,…

<p>Evidence obtained by means of a search-warrant is not inadmissible, either upon the ground that it is in the nature of admissions made under duress, or that it is evidence which the defendant has been compelled to furnish against himself, or on the ground that the evidence has been unfairly or illegally obtained, even if it appears that the search-warrant was illegally issued.</p>

<p>In this State, the existence of usury in a contract, even when taken advantage of in the mode prescribed by statute, can never be cause of nonsuit, unless it is manifest that three times the amount of the usury equals or exceeds the whole sum due by the terms of the contract.</p> <p>Where one, by his words or conduct, causes another to believe in the existence of a certain state of things, and induces him to act on that belief, so as to alter his own previous position, the former is concluded from averring against the latter a different state of things as actually existing at the same time.</p> <p>The obligation of a guarantor is that which the fair import of the language employed in the guaranty imposes upon him. If his engagement be absolute, he is not entitled to insist upon any condition.</p> <p>Notice of non-payment by the principal is not necessary to charge an absolute guarantor.</p> <p>Where the principal and collateral contracts are both made at the same time, and written on the same paper, and it is apparent from inspection that the collateral contract was an essential ground of the credit given to the principal debtor, the consideration of one is prima facie that of the other, and it is not necessary, to avoid the operation of the statute of frauds, that there should exist or be expressed in writing any other consideration than that moving between the creditor and original debtor.</p> <p>Where the alleged guarantors appear to have been original parties to the contract, as well as the principal debtor, and there is nothing in the language used to prevent such a construction, the contract may be construed as a direct and absolute engagement of all the parties thereto ; the alleged guarantors being regarded as surties for the principal debtor.</p> <p>Where a guaranty, or promise to pay the debt of a third person, is within the statute of frauds, so as to require the consideration of the undertaking to appear on the face of the instrument, it is sufficient if such consideration may be fairly implied from the terms of the guaranty itself.</p>

Petition for a new highway in Manchester. The petition was referred to the road commissioners, who made their report, laying out the road.

⅛ Equity. The bill was filed on the 4th day of June, 1855. It sets forth that on the 7th day of January, 1853, the complainant made and executed a deed of a lot of land, situated on the corner of Bridge and Wilson streets, in Manchester, to James ° 7 7 McWilkins; that the deed was signed, sealed and acknowledged by the complainant, and his then wife, Hannah E. Earrington, but that it was not recorded.

<p>In the description in a deed, if the premises intended to be granted appear clearly and satisfactorily from any part of the description, and other circumstances of description are mentioned which are not applicable to such premises, the grant will not be defeated, but those circumstances will be rejected as false or mistaken.</p> <p>The defendant owned a lot of land, known as No. 330, which he purchased of one S. It was bounded north by a passage-way, twenty-fire feet; east by lot No. 329, one hundred and twenty-six feet; south by Merrimack street, twenty-fire feet; and west by lot No. 331, one hundred and twenty-six feet. He conveyed it to the plaintiff, who went into possession on taking the deed. The description in the deed to the plaintiff gave the correct boundaries on the north and south, and also the length of the lines correctly on the east and west; but it stated the lot on the east to be No. 347, instead of 329, and on the west to be 349, instead of 331. It stated also that it was the same lot conreyed to him by S. — Held, that the error in the numbers of the lots bounding on the east and west did not affect the ralidity of the deed, and that the defendant was not liable for damages on his corenants of warranty.</p>

<p>Where three defendants are sued as joint tenants in a writ of entry, and two of them jilead severally sole tenure of the whole demanded premises, the third pleads sole tenure of all but forty acres, and as to the forty acres says nothing ; if issue is joined on all the pleas, and found for the defendants, the plaintiff cannot have judgment against the third defendant for the forty acres.</p> <p>On trial of such an issue, the only question is whether the defendants, when the writ was commenced, were jointly seized of a freehold; and it is no ground to set aside a verdict for the defendants that the court declined to instruct the jury as to the legal effect of the previous pleadings.</p> <p>Whether the demandant have title or not is immaterial in such case, unless the evidence tends to show a state of facts which would entitle the demandant, for the sake of his remedy, to consider himself as disseized, though not actually ousted of the freehold.</p> <p>By the established practice in this State, the demandant in a writ of entry counts ' in all cases on a seizin in himself and a disseizin done to him by the tenant.</p> <p>If the demandant have title, and a right of entry, his allegation that he was himself seized will be maintained in law, upon the supposition that he has entered and become seized according to his title, though he may never have had actual seizin of the land.</p> <p>If the demandant have title, and a right of entry, and the defendant plead the general issue, he will be held as a disseizor, though he may not have actually disseized the demandant, upon a like supposition that the demandant has entered and been expelled by the defendant.</p> <p>Under our statute of limitations, whoevor has a right of action has also a right of entry; and when the defendant pleads the general issue to a writ of entry, the only question is one of title.</p> <p>This local practice is confined in its operation to a simplification of the remedy by writ of entry, and does not affect the substantial rights and liabilities of the parties; and whether defendants in that writ are liable as tenants of the freehold, or as sole or joint tenants, when the question is raised by appropriate pleas, is determined by the rules of the common law.</p> <p>Where the ancestor of the demandant was disseized, and neither the demandant nor his ancestor entered or demanded possession afterwards, nor did any other similar act to assert his title, while the defendants, who were not the original disseizors, were on the land, they cannot be charged as disseizors and tenants of the freehold at the election of the demandant, and are not liable as such, if they neither have nor claim any freehold interest in the demanded premises.</p>

The indictment charged that on June SO, 1857, a complaint was made by W., of Newington, in said county, against the respondent and two others, all described as of Newington, to a justice of the peace for this county, the said W., made oath at Portsmouth, &c., for the same assault, offence, and misdemeanor therein after set forth; that a warrant was issued by the justice, returnable before the police court. of Portsmouth, upon which the respondents were arrested and brought…

In Equity. The bill states the following case : On the 1st day of September, 1814, George W. Ayers purchased of Daniel and John Marden, for the consideration of $300, a house and lot known as number six, on Anthony street, in Portsmouth. In October, 1823, Ayers married Eunice Wilson, the mother of the complainant.

<p>Where a father made a conveyance of a farm to his son, and, at the same time, took a mortgage to himself and wife, with a condition, hy which the son and his heirs, executors and administrators were to provide for the maintenance of his parents during their lives — held, that the duty to make such provision was personal, and could not be transferred to third persons, nor the property be taken by the creditors of the son without the consent of the parents :</p> <p>That, in case of the death of the son, the condition of the mortgage must be kept by his heirs, executors, or administrators; that it could not be by his creditors, nor the property be taken during the lives of the parents, to pay his debts:</p> <p>That the son might make a valid mortgage of the premises to creditors, but that such mortgage would not give the mortgagees power to perform the condition of the former mortgage, or to take possession of the premises during the lives of the parents.</p> <p>That after the decease of the son and of the parents, the property would belong to the estate of the son, if the mortgage had not been foreclosed by the parents.</p> <p>New matter may be introduced into a bill of revivor and supplement, so that defects in the original bill, arising from subsequent events, may be supplied, provided the original bill shows a case for the complainant; otherwise not.</p>

PETITION, for an execution to enforce the payment of alimony, and for an order changing the original decree. The petition was filed November 12,1856. The facts of the case sufficiently appear in the opinion of the court.

WRIT OF ENTRY, brought to recover a lot of land in Exeter, bounded south on Front street, 2 rods 5 feet; westerly on land of J. Batchelder, 6⅜ rods} northerly by land set off to said Eachel, (the tenant) as her dower in her late husband’s estate, 2 rods 2 feet; easterly by land of William Collins. Upon the general issue, the parties elected a trial by the court. The premises in question were part of the estate of Bobert Sharkey, deceased.

Assumpsit, upon a promissory note, signed by the defendant, dated the 17th of November, 1845, for $150, payable to one J. P. Blye, or order, on demand, and by him indorsed to the plaintiff. Plea, the general issue.

<p>In assumpsit for money had and received, the plaintiff produced a mortgage of personal property to his intestate, purporting to be signed by the defendant ; on the back of which was the usual affidavit, of the genuineness of the debt set forth in the mortgage. He proved the hand writing of the signature to the mortgage, and also to the affidavit, hut did not produce the witness to the execution of the mortgage. — Held, that, upon the issue of non assumpsit, the evidence was competent.</p> <p>If a witness has any knowledge of the hand writing of a person, which has been derived from seeing him write, or from seeing his writings or signatures on papers that have been recognized by him as genuine, or from an intimate acquaintance with his signatures, which have been adopted into ordinary business transactions, he may give his opinion of the hand writing. But it must appear that he has some such knowledge before he can be permitted to testify to his opinion.</p>

<p>Where goods are agreed to he sold on credit, and the buyer is to give his note for the price; if the goods are delivered, without the note or any request for i.t, the stipulation for the note is waived, and no action can be maintained for the price of the goods until the agreed term of credit has expired.</p>

Assumpsit, for money paid, laid out and expended. The plaintiff gave in evidence a promissory note, made by one Joshua West, for the sum of $575.00, dated Philadelphia, December 21, 1852, payable to the defendant, or order, four months after date, and by the defendant first indorsed, and subsequently indorsed by the plaintiff and others.- He also put in evidence a protest under the hand and notarial seal of Peter Oraus, notary public, dated Philadelphia, April 23, 1853,…

Indictment, on tbe statute for falsely and fraudulently mortgaging personal property to prevent it from being attached in mesne process.

<p>Generally, an executor or administrator is authorized to receive the rents and profits of the real estate of the testator, or intestate, only in case the estate is insolvent. In most other cases the lands descend, upon the death of the holder, to his heirs or devisees, with no right or duty on the part of the executor or administrator to intermeddle therewith.</p> <p>Where a testator declared his will to he, that, after the payment of debts and legacies, the residue of his real estate should be sold by his executor, and the proceeds thereof be equally divided among his children, and there was sufficient personal property to pay debts, legacies and expenses of administration, the estate was not administered in the insolvent course, and the executor never sold any portion of the real estate:</p> <p>Held, that the sureties in such executor’s bond could not be holden to pay rents and profits of the real estate of the testator, received by the executor, and charged to him by the judge of probate, on the settlement of his account of administration.</p> <p>Where a will directs the executor to sell the real estate, only a naked power of saléis conferred, without any interest, and the lands descend to the heirs or devisees, who are entitled to the profits until the power is executed.</p> <p>Sureties in an executor’s bond are only responsible for the doings of their principal in the discharge of his official duty, and not for his acts beyond the scope of his authority.</p>

<p>All parties, legally or equitably interested in the relief sought, may he parties to a hill in equity. If a bill is brought to compel parties to indemnify certain of the plaintiffs against liabilities assumed for the common benefit, one, who is hound merely as a guarantor, may be joined as plaintiff; so may a party with whom the contract of indemnity is made by name, though he is not otherwise interested.</p> <p>In equity, parties to a contract may maintain their bill against others, though they hare contracted both ás promissors and promisees.</p> <p>Where a condition precedent requires that certain money shall be expended in finishing and furnishing a railroad, it is not a sufficient averment of performance, to allege that it was expended in building, finishing and furnishing such railroad.</p> <p>Where an undertaking to pay is absolute, the guarantor’s liability is fixed without demand or notice.</p> <p>Where the contractors agree to indemnify and secure the other parties against any and all loss or damage, and it is at the samé time agreed that certain securities shall be taken for the benefit of the parties, the parties indemnified may maintain their bill, without showing that they have attempted to make those securities available.</p>

Assumpsit upon a promissory note, signed by tbe defendant, payable to the Protection Insurance Company of Hew-Jersey, or order.

Assumpsit for $250. Writ dated May 31, 1854. The declaration contained two special counts ; also a general count, alleging that the said John Little, March 7,1852, being indebted to the plaintiff in the sum of $250, for certain lands sold and conveyed by the plaintiff to said John Little, at his request, in consideration thereof promised to pay him said sum on demand, &c. Plea, the general issue, and notice of statute of limitations.

<p>Where a plea of fraud to a contract under seal, set forth that the deed was executed and delivered to N., a third person, to he delivered to the plaintiff, in performance of a particular agreement between him and N., and that N. and the plaintiff collusively made a different agreement, less beneficial to the defendants, and the deed was delivered on such new agreement: it was held, that a replication that the deed was not obtained by fraud and covin of N. and the plaintiff was bad, because, when a defence consists of several facts, the replication must deny only a single fact, or the facts making a single point of the defence.</p> <p>A replication, denying that the deed was delivered to K. to be delivered to the plaintiff upon the agreement stated in the plea, is good ; because that fact is essential to the defence.</p> <p>Replications, one of which alleges that the first agreement stated in the plea was sot aside and abandoned, the other that it was changed and altered by the plaintiff and N. before the deed was made, and the defendants then knew this, are bad ; because it does not necessarily follow that the deed was not delivered to carry into effect that first agreement, and the abandonment or change by K. and the plaintiff was not material.</p> <p>Replications which traverse no fact alleged in the plea, and which introduce no facts which of themselves constitute an answer to the plea, but which mostly state facts which would in evidence tend to prove a subsequent ratification of the deed, are bad; because they offer no issue by the finding of which the case could be properly determined.</p>

<p>The Supreme Court may award execution against the person as well as the estate of a husband, who- has neglected to pay tho alimony decreed to the wife, upon a divorce.</p> <p>No affidavit is required upon such execution, that the debtor secretes his property, or is about to leave the State to avoid the payment of his debts, because such execution is not founded on contract.</p> <p>If the husband give bond upon his arrest to take the poo-r debtor’s oath, or surrender himself to prison within a year, his sureties will be liable, if he fails to do the one or the other, though the justices to whom he has applied may ltavo improperly refused to administer the oath.</p> <p>A poor debtor may be properly required to assign to the creditor his right to a - life annuity, before he is admitted to take the poor debtor’s o-ath.</p>

TRESPASS, for an assault and battery and false imprisonment.

<p>The facts of this case sufficiently appear from the opinion of the court delivered by</p>

<p>It is a fatal variance if a note, declared on as of a particular date, proves not to have any date.</p> <p>An omission to state in a declaration any time when the promise was made, is bad on demurrer, but it is not a ground of nonsuit.</p> <p>The time when any traversable fact happened, is not material, unless it constitutes a material part of a contract declared on, or is the date of some written contract or record.</p> <p>A breach assigned, either less or larger than the contract, is bad on demurrer, but is not ground of nonsuit.</p> <p>Private statutes and by-laws may be proved, though not set out in pleading, where it is not necessary to state them as part of the cause of action.</p> <p>Both may be proved by printed copies, attached to a policy of insurance, where the evidence tends to show the policy accepted by the defendant.</p> <p>Where the charter provides that all assessments shall be determined by the directors, and lays down the rules by which the amount to be raised, and the manner it is to be apportioned, are fixed, all that is necessary is, that the directors determine by vote that an assessment be made ; and such vote is a sufficient requirement of a payment to be made on the premium note.</p> <p>Where a by-law requires payment of an assessment, designating the class of property assessed, to be published, a notice, not specifying the amount payable on each note, is sufficient.</p> <p>It is immaterial in what manner the stated meetings of directors have been fixed. It is enough if they are in fact regularly held on stated days.</p> <p>Assumpsit for money paid does not lie to recover a premium note.</p>

<p>Where the minor daughter of the defendant was residing, with his consent, at the house of another, and was there taken with the small-pox, and the health officers of the town established the house where she was as a pest-house, and detained her there with other patients, it was held that the town could not maintain an action against the defendant for the support furnished his daughter while thus detained.</p>

Assumpsit, upon a promissory note, signed by the defendant, payable to Bradford & Macomber, or order, in four months, and by them indorsed to the plaintiff. Flea, the general issue. The defence rested upon two grounds: First, payment; and, second, that the note was given for spirituous liquors, sold in Massachusetts without license, contrary to the law of that State, and that the plaintiff received the note under such circumstances as to be chargeable with this defence.

Case. No question was raised on the pleadings. The facts were agreed to by the parties, and are sufficiently stated in the opinion of the court. took the following positions : It was the duty of the town to provide a suitable and safe place for holding town-meetings. Towns have power to purchase and hold real estate for the public use of the inhabitants, and may, by statute, repair meeting-houses belonging to the town. Oomp. Stat. 100, secs. 3, 4.

<p>A surveyor of highways is justified by his warrant in taking a distress for nonpayment of a tax, though, in limiting his district, the selectmen have included a road or roads which are not public highways in the town.</p> <p>It is not necessary that the place at which a tax-payer has notice to attend, for the purpose of working out his tax, should be directly on any highway in the district. It is enough if the place does not appear to.be improper and inconvenient.</p> <p>A distress, taken on Monday, for neglect to pay a highway tax, is properly advertised on the following Saturday to be sold the next Monday.</p> <p>If the town records state that the selectmen chosen, “ being present, took the oath of office by law prescribed,” it is sufficient, without stating before whom the oath was taken.</p>

<p>A contract of apprenticeship, not conformable to the statute, is voidable only by the apprentice, and cannot be avoided by any other person or party, for that reason.</p> <p>If the apprentice fulfil the stipulations of such voidable contract, he -will be entitled to the benefits accruing to himself from its terms.</p> <p>Where a father binds his son as an apprentice, by a contract not in conformity to the provisions of the statute, after such contract has been avoided by the apprentice, the law will not imply a promise by the master to pay the father for the services of the son during a portion of his apprenticeship, if, by the terms of the contract, nothing was to be paid for his services during the whole period thereof.</p>

TROVER, for ninety-three wool pelts, of the value of fifty cents each, alleged to have been converted by the defendant on the 29th day of August, 1855. Plea, the general issue. The writ was dated August 31, 1855. The plaintiffs were partners, doing business under the name and style of Gilman & Sanborn. The plaintiffs called one Samuel F. Gilman as a witness, who testified substantially as follows:. The plaintiffs were partners in August, 1855.

In Equity. The bill alleges that on the 16th of December, 1854, Jesse Whitten, Senior, by his deed of that date, duly signed, sealed, witnessed, acknowledged and recorded in the Carroll county registry, conveyed to the plaintiff one half his homestead farm in Wolfborough, bounded northerly by Smith’s Pond, easterly by land of D. Whitten, southerly by Crooked Pond, Whitten’s River, and the road leading from Whitten’s Neck to the road leading from Wolfborough to Ossipee, and…

<p>A quitclaim deed, without consideration from a mortgagor to the mortgagee, will be without effect, as against an attaching creditor of the mortgagor.</p> <p>If a mortgagee, after such quitclaim deed, purchase the claim of a creditor, and cause the right in equity to be levied upon and Bold, he cannot set up his quitclaim against the purchaser.</p> <p>If a party who has a right to require an assignment, pay the mortgage debt, and take a discharge, the mortgage will he held a subsisting security for his protection.</p> <p>If necessary to prevent the loss of the money so paid, he may maintain a writ of entry as on a mortgage, and recover a conditional judgment for that amount.</p>

<p>A deed, with a condition written upon the back and executed by the grantee, is a conveyance upon condition, if there be nothing in the instrument or condition indicating to the contrary.</p> <p>By a deed upon condition, though an estate be conveyed, yet it passes to the grantee subject to the condition; and laches are chargeable upon the grantee for non-performance of the condition annexed to the estate, even though such grantee be a feme covert.</p> <p>He who enters upon land for condition broken becomes seized of his first estate, and thereby avoids all intermediate charges and incumbrances.</p> <p>A divorce does not, ipso facto, cut off the rights of the husband in the real estate of his wife. It requires the decree of the court granting the divorce to disincumber the estate from the husband’s rights.</p>

TRESPASS, for cutting and carrying away standing grass. Plea, the general issue, and soil and freehold in the locus in quo in one Berry, under whom the defendant entered. The close in question was originally part of the common and undivided lands in the town of Moultonborough.

<p>Where the question before the jury is the good faith of a sale of goods, whatever is said in the progress of the negotiations, and contemporaneous with the sale, and having a tendency to give a character to it, and which derives credit from it, is admissible.</p> <p>But a recital of past transactions is not admissible; and where the sale had been completed, and one of the parties, during the afternoon of the day of the sale, at another place, stated to other persons what had been done, — Kdd, that the statements were inadmissible.</p>

<p>The caption is no part of an indictment; its office is to state the style of the court at which, and the time and place when and where, the indictment was found, with reasonable certainty.</p> <p>The caption of an indictment, alleging that it was found at a specified term of the Supreme Judicial Court, is not defective or imperfect, inasmuch as the terms of that court are fixed by public law, and when the term is stated, with the time and place of holding it, it is sufficiently stated and sufficiently appears, with reasonable certainty, whether it was found at a trial or law term of that court.</p> <p>In every indictment the offence should be so described as not to leave it uncertain what the government really rely upon before trial to support the accusation, what they have relied upon after trial, or for what a conviction has been had, if one be obtained.</p> <p>An indictment, charging the respondents with having conspired among themselves falsely and maliciously to charge or cause to be charged, and with having falsely and maliciously prosecuted or caused to be prosecuted, a certain person for a certain crime, is bad for uncertainty, and judgment thereon will be arrested, on motion.</p>

<p>The act of 1855, “For remodeling the Judiciary,” does not take away the right of review in actions pending when the statute went into effect.</p>

Assumpsit, for the support of a pauper, alleged to have his settlement in the defendant town derived from Charles Nash.

Debt, against Levi W. Barton and Shepard L. Bowers, to recover a penalty of fifty dollars. Action founded upon the 25th section of chap. 245, Compiled Statutes. Writ, dated August 12, 1856.

<p>A bond in the form usually given by the administrator of an intestate estate, and containing all the statute provisions applicable to the administration of such an estate, is valid and sufficient to bind an administrator, with the will annexed, and his sureties, to the faithful discharge of his official duties, when given as the condition of his appointment to that office.</p> <p>The recital in the condition of such bond, when describing the deceased, that he died intestate, is mere description of the person, and may be rejected as immaterial and surplusage.</p> <p>The provision in such bond that the principal obligor shall administer the estate of the deceased according to law, is in effect a provision that he shall administer the same according to the will of the deceased — such will having been previously duly proved and approved by the proper authority.</p> <p>The administrator de bonis non with the will annexed, of a deceased testator, is the proper power to prosecute, in the name of the judge of probate, a suit against the sureties in the bond of the first administrator, to recover the balance found remaining in his hands upon the settlement of his final account of administration — provided the necessary preliminary steps hare been taken, and the proper proceedings had to authorize such suit.</p>

<p>If the owner of land over which a highway is laid out have on the land an artificial water-course, used to convey water to his house, the road ought to be constructed and maintained with a culvert, or other suitable passage for the water-course, unless the difficulty and expense of providing such a passage would exceed the damage caused by stopping the water-course, and make it unreasonable to require the road to be so constructed and maintained.</p> <p>If the owner of land and a water-course have the right to a culvert in a highway for the water-course, and the water-course is obstructed by neglect of the town to keep the culvert in repair, the owner, after due notice to the surveyor of the district, may himself open the culvert, doing no unnecessary injury to the road.</p>

Assumpsit. The action was brought to recover for the support of one D. Bailey, and his wife and minor child. Said Bailey resided in Benton from February, 1841, to November, 1846; and it was a question whether he gained a settlement there in the fourth mode provided by chapter 65 of the Revised Statutes.

Petition for a highway in said Hanover, entered at the October term of the Common Pleas, 1855.

<p>The town where a woman, liable to become a county pauper, dwells and has her home, is liable by law for the maintenance of her bastard child, within the meaning of the fifth, seventh, eighth and ninth sections of the sixty-eighth chapter of the Revised Statutes.</p> <p>If such woman neglect or refuse to prosecute, such town may rightfully institute and carry on proceedings against the putative father of such bastard child, for the purpose of obtaining indemnity against liability for its maintenance.</p>

<p>On appeal from a justice of the peace, the plaintiff, if he recovers a judgment, is entitled to full costs, though the amount recovered in the court above maybe less than was recovered before the justice.</p>

<p>The plaintiffs are described in the writ as Charles S. Scruton, of Bath, in said county, (of Grafton) “ and John Hand, of Peacham, in the county of Caledonia, in the State of Vermont, yeomen, and partners doing business under the name of Scruton & Hand.” The writ is indorsed : “ Scruton & Hand : By their attorney, A. P. Carpenter.” The defendant moved that the writ be quashed for want of a proper indorser ; and in support of the motion offered the testimony of G. W. Chamberlain to the facts that the plaintiff, Scruton, never had his residence in Bath, but that his domicil was in Newbury, in the State of Vermont.</p> <p>argued that as it appeared from the writ that Hand was not an inhabitant of the State, and from the testimony of Chamberlain that Seruton also was not, the indorsement was insufficient on the authority of Miner v. Smith, 6 N. H. 219; that if the authority of that case was in any degree shaken by Pettengillv. McGregor, 12 N. H. 179, the doctrine of the latter case has no application to this, as the ground upon which the indorsement in that case was held to be the indorsement of the attorney, was that it appeared from the writ itself that the attorney had no authority to indorse the plaintiff’s name, and was therefore personally bound; while in this case, Seruton, being set up in the writ as a citizen of this State, it does not appear upon the face of the writ that his name was indorsed improperly; and consequently the attorney is not bound. He contended that if Seruton was taken to be a citizen of the State, as described in the writ, the defendant was entitled to his indorsement, or that of his agent or attorney, binding them personally ; and if taken to be not a citizen, as shown by the. proof, then he was entitled to the personal responsibility of some one who was a citizen: That in this case he had neither, and the indorsement was insufficient, qua aunque via.</p> <p>contended that the case came within the principle of JPettengill v. Me Qtregor.</p>

<p>Upon the reversal of a judgment on error, a writ of restitution is to be awarded for the amount received by the defendant in error, in satisfaction of the erroneous judgment, and officers’ fees, with interest thereon. There can be no inquiry, into the damages sustained by the plaintiff in error, by reason of the levy of the execution upon the property, and a sale thereof under its</p>

<p>An allowance, made by the judge of probate to a widow for her “ present support,” under sec. 1, chap. 165, Rev. Stat., is not a gift to the widow, nor intended to remedy any apparent injustice to which she may be exposed by tbe statute of distributions, or the will of her husband, but to enable her to support herself until her interest in the estate can be set out to her.</p> <p>Where the inventory of the estate of an intestate consisted of real estate to the amount of $800, and personal to the amount $1,250, and the debts against the estate amounted to $575, and there were no lineal descendants, and the judge of probate made an allowance to the widow of $600 — Held, that the decree should be reversed, and-an allowance be made of $200.</p>

<p>The owner of land oyer which a railroad is constructed has no right of action against the railroad company for damages resulting from the want of necessary farm-crossings and cattle-passes, unless it appears that the company have agreed to provide them, or that the land-owner has made application to three justices of the peace, and obtained their report, determining where and within what time such crossings and passes shall be made, agreeably to the provisions of see. 5, chap. 593, statutes of 1850.</p>

Assumpsit, upon the joint and several promissory note of the defendant and one Asa Parker, dated January 12,1844, payable to the plaintiffs, or order, on demand, with interest annually. The writ was dated March 30,1855. Plea, the general issue, with statute of limitations, to which replication of new promise, and issues joined.

<p>An appeal from the Common Pleas to the Supreme Judicial Court vacates the judgment appealed from, but leaves the case, with all its incidents, its pleadings and evidence, unaffected.</p> <p>The statute makes an auditor’s report competent evidence for the party in whose favor it is made, subject to be impeached; and an appeal can no more destroy such report, than any other evidence upon which the party is entitled to rely.</p>

<p>Ia assumpsit, several breaches of the same contract may be assigned in one count.</p> <p>Where a contract was to be completed before a fixed day, and many things are stipulated to be done without any designation of time, it is sufficient to aver that they were not done at the time they ought to have been.</p> <p>No request need be alleged, if none is stipulated for, or reasonably-implied.</p> <p>When an enumeration of particulars would lead to great prolixity in pleading, a general statement is sufficient.</p> <p>Where it was stipulated, in a contract for building a railroad, that if the aggregate amount of all material encountered in constructing it was increased by the definite location over the preliminary estimate, an allowance should be made, it was — Held-, that an averment that the amount of material encountered was increased, &e., was in effect the same, as the amount' of all material, and that the stipulation did not apply to an increase of the aggregate of each kind of material, but the aggregate of all kinds must be increased.</p> <p>An agreement to refer does not bar a suit in law or equity, unless the contract is so framed as to make the reference a condition precedent. In such case a reference must be alleged in the declaration, or an excuse for the want of it.</p> <p>Any act of the party, or of those for whose conduct he is responsible, by which a reference is prevented, will be a sufficient excuse, but it must be alleged, or it cannot be proved.</p> <p>If a reference has been had, it must be alleged, and the reason why the party is not bound ; otherwise it cannot be impeached. If an award is fairly made by a disinterested third person, the parties are bound.</p> <p>An agreement to refer to a party himself is not binding. Quere, if the parties are concluded by an agreement to refer, or by a decision of a mere agent of one of the parties ? The declaration in such case must allege the condition precedent, performed, or excused ; and, if a decision is stated, the reason why it is not binding.</p> <p>Where it was stipulated that payment should be made for building a railroad, partly in money and partly in stock, the payment for extra work may be recovered in money.</p> <p>Where ’it is stipulated that one party shall do the work, the other finding materials — there is an implied agreement that the materials shall be seasonably furnished.</p> <p>So where it is agreed that work shall be done under the superintendence of the other party’s engineer, &c., there is an implied agreement that a suitable engineer shall be employed, and that he shall do what the contract requires, in due season.</p> <p>The party who neglects to furnish such engineer is liable to an action; and can take no advantage of his failure.</p> <p>In declaring upon such implied contract, it is not enough to set out the written contract in terms. It is necessary to state the implied contract, as it is contended to be, with all its qualifications.</p>

<p>Matter stated under the general issue must constitute a defence to the action ; otherwise the statement will be rejected, on motion.</p> <p>Where, in case for slander, the words laid in the declaration charged that the plaintiff committed an offence with one person, evidence that he had committed a like offence with other persons, will not be received, either as a defence or in mitigation of damages.</p> <p>Where the words laid charge the plaintiff with having committed a certain offence, evidence will not be received that he had committed a different offence, either with the same or with other persons.</p> <p>Thus, where the words laid charged that the plaintiff had committed a rape on a particular person, named in the declaration, evidence will not be received that he had attempted to commit a rape on the saíne, and also on another person, either as a defence or in mitigation of damages.</p> <p>Nor will evidence be received in mitigation that the plaintiff had admitted and boasted that he had committed, with other persons, offences of a like character with that charged upon him by the words laid in the declaration.</p> <p>Where the defendant, to an action in the case for slander, pleads the general issue and a justification, he may give evidence in mitigation of damages under the general issue. Queers, whether he may not when a justification is pleaded alone?</p> <p>Where the defendant pleads a justification, and offers evidence tending, but failing, to prove the truth of the words laid in the declaration, if this defence is made bond fide, and not with the purpose of spreading and perpetuating the original slander, the making of such a defence ought not to be considered in aggravation of damages; and whether the defence in such case is made with a fair or malicious purpose, is a question of fact for the jury.</p>

The agreed case, transferred from the court of Common Pleas to this court, and in which the opinion was delivered, as reported in 84 N. H. 315, contains the following stipulation : “ The parties agree that if either shall desire to contest any fact stated in this case, or to prove any other that shall, by the judgment of the court, be material, then this case may be discharged and stand for trial.” An order was sent from this court to the court of Common Pleas for judgment…

WRIT OP Entey, for a farm in Franklin, known as the Fifield farm. The action was commenced on the 3d day of March, 1854, against Sarah Blanchard, who afterwards died, and this defendant, her executor, came in to defend. The plea was the general issue. The plaintiff proved a deed from one Calvin Gerrish, the admitted former owner of the premises, executed on the 6th day of February, 1852.

<p>Where a suit is brought by an assignee of a chose in action, in the name of his assignor, and judgment is rendered and execution issued in the name of the assignor, the levy upon real estate, by direction of the assignee, passes the title directly to him. The assignee is, under our statute, deemed to be the creditor, as to all persons having notice of his claim.</p>

<p>Where the cause has been submitted to a commissioner appointed under the statute, and questions of law are raised on his report, the court cannot revise the finding of the commissioner on matters of fact properly submitted to his determination. .</p> <p>Whether a note, taken for an antecedent debt, was received in payment, is a question of fact, proper to be determined by the commissioner on the evidence before him.</p> <p>Where a promissory note is made payable to the order of two joint payees, and one of the payees transfers his interest in the note to the other, if at the time of the transfer the party selling his interest set his name on the back of the note, he cannot be charged as indorser by the other pavee.</p>

<p>Upon application to the county commissioners to assess a portion of the expense of constructing a new highway upon an adjoining town, a notice in writing, by the commissioners, of the time and place for hearing the application, addressed to the selectmen and town-clerk of such town, by name, with the addition of their official designation as selectmen and town-clerk, and stating therein that the selectmen of the town may attend and be heard, is a sufficient notice to the town.</p> <p>It is no ground of exception to the report of the commissioners, assessing a portion of the expense upon the adjoining town, that the report sets forth that the commissioners notified the adjoining town, upon the motion of the attorney of the town in which the highway is prayed for, and without stating that they first made the preliminary inquiry whether there was probable ground for making the assessment; nor that a definite sum is assessed to be paid by the adjoining town to the town in which the highway is to be constructed, instead of apportioning the whole expense in definite proportions between the two towns; nor that the report making the assessment is distinct from that laying out the highway, if they are returned together to the court of Common Pleas.</p> <p>The facts that the town in which the highway is to be constructed has a large valuation for the purposes of taxation, as compared with the other town, and that the whole expense of constructing it, if raised by one tax in the former town, would increase their taxation only to a small amount, are not conclusive evidence that the town would not be excessively burdened by the whole expense.</p>

Assumpsit, to recover the amount of seven promissory notes, five of them made by the defendant, and two payable in one and two years from date, given by one Philbrick Oram to the defendant, or his order, and by the defendant, soon after their date, indorsed to the plaintiffs. The defendant confessed the amount due upon his own notes, and as to the Cram notes pleaded the general issue.

<p>Evidence that the defendant was present at the organization of a company as a corporation, was elected, and acted as president, and signed the note in suit as such, is prima facie proof of the existence and organization of the corporation, as in effect the admission of a party.</p> <p>It would also be evidence that the party was a stockholder; the absence of the proper documentary evidence in both cases being first accounted for.</p> <p>The demand upon a corporation for payment of a debt, to charge a stockholder must be personal upon a proper agent, or officer, and verbal, so that payment might be made at once. It is not enough to send to the officer by a third person, a notice in writing to pay, unless payment is expressly refused, without objection to the form of the demand.</p> <p>If copies of the notes, or claims demanded, are presented, it is not necessary to present the originals, unless objection is made on that account.</p> <p>It is not necessary that the claim against a corporation should be liquidated, in order to charge a stockholder under the first clause of the statute of 1846.</p> <p>In an action of assumpsit, where the facts necessary to show a good cause in debt, are stated, but no assumpsit is alleged, the defect cannot be taken advantage of on the trial. It will be cured by a verdict.</p> <p>The books of a corporation are not admissible against a member of the company, as evidence of his private contracts or dealings with the company. In respect to them, he is to be regarded as a stranger.</p> <p>Such books are not evidence in any case, unless it appears that they have been kept by the proper officer of the corporation.</p> <p>The Supreme Court has jurisdiction of all civil actions at common law, where the damages demanded exceed one hundred dollars. The test is the amount demanded, not the amount recovered.</p>

<p>In the description of a line, what is most material and certain controls what is less material and uncertain. Boundaries marked on the land govern courses and distances. If the plan, or the line, described in a deed or charter, and the monuments made by an original survey of a tract or township of land, do not correspond, the monuments determine the true location; and the marks on the ground of an old survey, indicating the lines originally run, are the best evidence of the true location of that survey.</p> <p>Where land is conveyed by a deed referring to a plan or to a charter line, between which and the actual original survey, as shown by fixed monuments upon the ground, there is a difference in the courses and distances, or in the location of lines and monuments, the lines and monuments, as originally located and marked on the ground, are to govern, however they may differ from those represented on the plan, or described in the charter.</p> <p>No parol evidence of the understanding or intention of the parties can control the well settled construction an'd legal effect of the clear language of a deed ; but, if that language contain a latent ambiguity, so that it may be applicable to several"persons, to several parcels of land, to several species of goods, to several monuments, boundaries or lines; or, if the terms employed be vague and general, or susceptible of diver's meanings, parol evidence is admissible of any extrinsic circumstances tending to show what persons or things were intended, or the true meaning of the terms used.</p> <p>It is not improper for a witness to state that, among other indications of the existence of an established line, he noticed a ridge of land apparently marking the interval between the occupation for tillage or other purposes, on the one side and the other; what such ridge indicates, being almost as much a matter of fact and observation on the ground, as its existence.</p>

TRESPASS, for breaking and entering the plaintiff’s close, and cutting wood and timber. The question was as to the dividing line between the land of the parties. The defendants relied in part upon an agreement establishing the line claimed by them, entered into by one Roberts, a former owner of the plaintiff’s land, with one of the defendants.

ERROR, to reverse a judgment of the Court of Common Pleas for this county, rendered January term, 1858, in favor of the defendant in error, upon appeal from the decision of a justice of the peace for this county.