Volume 37 — New Hampshire Reports

In Debt. The writ contained six counts. It was not served on Hayward, who was a resident of Massachusetts. The first count was upon a judgment in favor of the plaintiff against the defendants, recovered in the Court of Common Pleas of Essex county, Massachusetts, on the 3d Monday of March, 1852, for $750.75, debt, and $31.87, costs. The other counts were upon promissory notes, and an account annexed, and general indebitatus assumpsit. Plea the general issue.

Assumpsit, upon an alleged -warranty that a horse sold by the defendant to the plaintiff was sound. To prove the horse unsound, the plaintiffs called Azariah Williams, who owned the horse about five years, and testified that he had a cough for about two years in the foddering season, when kept at hay.

Assumpsit, on a policy of insurance. Tbe legal and proper organization of tbe company was admitted and tbe due execution of tbe policy. Tbe corporation bad its place of business at Worcester, Mass. Tbe loss occurred on tbe 5tb of February, 1856, and resulted in a total destruction of tbe properly insured, wbieb property was tbe plaintiff’s, and was unincumbered. Tbe company were duly and properly notified of tbe loss.

Writ of Dower, sued out on tbe 20th. of March, 1855. Tbe plaintiff claims as widow of Isaac Stevens. Tbe pleas were, that said Isaac was not so seized tbat tbe plaintiff could be entitled to dower; tbat tbe plaintiff was never the wife of said Isaac; and that the land described in the writ was not in a state of cultivation, nor used as a wood or timber lot. Issues were joined on each plea.

In Chancery. Tbe plaintiff filed Ms bill for discovery in aid of a smt at law.

The Petition oe the Town oe Mileord, for the discontinuance of a highway, set forth that, “At the Court of Common Pleas, holden at Manchester, within and for said county, on the fourth Tuesday of October, A. D. 1854, a new public highway was laid out in said town of Milford, across Souhegan river, near Jones’ corner, (so called) on the petition of Reuben Hutchinson and others. “ That said town of Milford, at a legal town meeting, duly called and holden for that purpose, on…

Writ oe Entry, for one undivided sixth part of a dwelling-house in Portsmouth, and also for a piece of land in Portsmouth, bounded south-easterly on South street, forty-four feet; south-westerly by a lane leading from South street to a rope-walk, one hundred feet, more or less; north-westerly by the same rope-walk, forty-four feet; north-easterly by land of William Yaughan, deceased, one hundred and thirty feet, more or less, to South street, known as the “ Salter lot.”…

In a writ of entry for five sevenths of a farm in Kensington, it appeared, upon the general issue, that Nathan Fellows, before the 9th of July, 1825, and until his death, in 1829, was seized of the farm, occupying it as his homestead. He left four sons and three daughters, his heirs at law, among whom were Cyrus, the demandant, and Nathan, Jr., and a widow, Dorothy, entitled to dower in the farm.

<p>Tbe certificate of the proper recording oflicer is competent evidence of the fact that the instrument to which it is attached has been recorded, as therein certified.</p> <p>A mortgage of personal property, duly executed and recorded, according to the laws of the country of its execution, is effectual to hold the property conveyed hy it, when subsequently removed to this State, although not executed conformably to our laws, and not recorded here.</p> <p>Evidence that the mortgagor owed the debt, and that the note secured by the mortgage was given upon an adjustment of mutual preexisting claims between the mortgagor and mortgagee, is competent to be weighed hy the jury, as tending to show a full and sufficient consideration for a mortgage.</p> <p>Foreign laws are to he proved as facts, by evidence addressed to the court, and not to the jury.</p> <p>In Maine, as in New-Hampshire, where there is no stipulation to the contrary, the execution of a personal mortgage vests the title of the mortgaged property in the mortgagee, whether the mortgage debt is due or not.</p> <p>An attachment of mortgaged property, followed by a refusal to give it up on demand made, and exhibition of the mortgage and mortgage debt, is competent and sufficient evidence of conversion, whether at the time of the demand the property be actually in the possession of the officer malting the attachment or not.</p> <p>Remedies are regulated exclusively by the laws of the place where they are prosecuted, and property mortgaged in Maine and subsequently brought into this State, can only be attached and holden here agreeably to the provisions of our laws.</p> <p>Delivery, without payment of the price, or evidence of some understanding or agreement to give credit, is not conclusive evidence of a perfected sale.</p> <p>Evidence of the price stipulated to be paid for an article, by the terms of a contract of sale, deliberately and in good faith entered into, and so far completed that nothing remained to be done to pass the property but the payment of the purchase money, is competent to he considered on the question of the value of such article.</p>

Foreign Attachment. The trustee disclosed as follows : In the spring of 1848 I made a bargain with the said Chase, to sell him certain real estate in Hampton-Falls. He was to let me have a horse, and pay me four hundred dollars for the same.

Writ or Entry, to recover an undivided balf of certain premises, situate in Portsmouth, in this county, particularly described in the plaintiff’s writ.

This was an appeal from the decision of the commissioner of insolvency upon the estate of John W. Seavey, late of Rye, deceased. The declaration was in assumpsit, containing seven counts. The first was upon an account annexed, amounting to $2,304, in substance as follows: 1855: Dec. 23.

<p>The court will not, upon the motion of a party, order a witness summoned under a subpoena duces tecum, to produce the papers mentioned in the subpoena, until it appears, from his own admission or from other conclusive evidence, that he has them under his control; and it seems an order will not be made upon him in the alternative to produce them, or show cause why, until he has been asked whether he has them in his possession.</p> <p>To render the statement made by a witness out of court admissible for the purpose of contradicting his testimony, it must conflict with some fact</p> <p>• stated in it, or with its general drift. It is not sufficient that it consists merely in a comment upon the subject which indicates a general want of veracity.</p> <p>Declarations, made at the time of delivering money to a married woman, by the person delivering it, in the nature of directions or suggestions as to its disposition, are evidence, as part of the res gestoe, upon the question whether the money was received by her as her husband’s, or her own.</p> <p>The husband acquires by the marriage no right or title to the personal property owned by the wife at the time of the marriage, or accruing to her subsequently, whether it consist in specific chattels, money, or choses in action, except the marital right of reducing it to possession.</p> <p>Deceiving the money of the wife for the purpose of paying it away on her account, and thus paying it over, does not constitute a reduction to possession.</p> <p>The husband acquires no interest which can be seized by his creditors, in land purchased in good faith by the wife, and conveyed to a third person for her use, although the husband applies the proceeds of wood and timber, cut by him from the land, in part payment of the consideration for the purchase.</p> <p>"Where the consideration for the purchase of land conveyed to a third person is paid in part with the money of the husband, and in part with that of the wife, not reduced to possession by the husband, the conveyance inures to the use of the husband and wife respectively, in proportion to the amount so paid by them.</p> <p>Nothing passes by the extent of an execution against the husband upon a parcel of the land so purchased, set off by metes and bounds, from the residue.</p>

<p>The plaintiffs, being the owners of a tide-mill, authorized the defendants to maintain a bridge, resting on piles, across their mill-pond, and to modify the structure and supports in any way that might be deemed proper, to secure and preserve them, and released all damages on account of the bridge, and of any future modification of it; with a proviso, that if it should be so altered as to increase the damages to the mill-pond, by diminishing the quantity of -water, or otherwise impairing its efficiency, the plaintiffs should not be prejudiced in their claim for further damages. The plaintiffs subsequently released to the Portsmouth and Concord Railroad that part of the pond on which the bridge stood, bounding the premises released by the northerly side line of the bridge, saving and excepting all right, title, interest and privilege before conveyed to the defendants.</p> <p>The Portsmouth and Concord Railroad subsequently conveyed to the defendants the land under the bridge, with the right to fill up and make solid the space under it, and to slope the northern side of the embankment by a wall, or otherwise, into the mill-pond. The defendants filled in an embankment of earth about the piles under the bridge, which in filling in was allowed to run out to its natural slope, into the mill-pond, some distance beyond the northerly side line of the bridge:</p> <p>Held, that the embankment was such modification of the bridge as was intended by the parties in the release of damages from the plaintiffs; that the defendants, having proceeded to make the embankment upon the understanding expressed in the proviso, that the plaintiffs were not to be prejudiced in their claim for further damages, a promise to pay those damages was implied, and the plaintiffs might maintain assumpsit therefor; that the saving clause in the release from the plaintiffs to the Portsmouth and Concord Railroad was not such exception or reservation as preserved to the plaintiffs their right of action for the further damages occasioned by the embankment, so far as it was confined to the premises released to the Portsmouth and Concord Railroad; but that the right of action remained to them for the actual damages occasioned by the running out of the embankment into the mill-pond beyond the northerly side line of the bridge.</p>

Writ or Entry, to foreclose the mortgage upon a tract of land in Derry. The defendant disclaimed as to one acre of the demanded premises, and as to the residue pleaded the general issue. The demanded premises were situate on the east side of a certain highway in Derry.

The indictment charges Elizabeth York with burning the barn of Joseph Corson, at Raymond, in said county, on the 21st day of April, 1857, and Sarah P. Leavitt with hiring and procuring Elizabeth York to burn said barn.

<p>An agreement to convey land in consideration of services to be rendered, is within the statute of frauds.</p> <p>Upon a quantum meruit to Tecover for such services, the value of the land is not the fixed measure of damages, although such value is competent evidence to be considered by the jury upon the question of damages.</p> <p>The benefits received from the land by the party rendering the services, may, upon the general issue to a quantum meruit, be applied in payment for the same, without filing any set-off to the plaintiff’s demand.</p> <p>Where the plaintiff, with his family, went to reside with the defendant’s intestate upon the farm of the latter, under a verbal agreement between them that the farm should be conveyed or devised to the plaintiff — Held, 1st, that no action could be maintained upon the agreement; 2d, that upon a quantum meruit for the services rendered, the value of the farm was not the fixed measure of damages; hut that the jury might take into consideration such value in making up their verdict; and, 3d, that the benefits derived from the farm by the plaintiff, and the income thereof, were also proper matters for the consideration of the jury in arriving at the conclusion how much the plaintiff ought to receive.</p>

<p>Libel for' Divorce, by the wife, for three years willing absence of the husband, without making any suitable provision for her support and maintenance. The facts sufficiently appear in the opinion of the court.</p>

<p>Upon an indictment under the statute for maliciously placing obstructions upon the track of a railroad, evidence showing that the prisoner placed on the track other obstructions than those for which the indictment was found, is competent, provided the acts are so connected that they may be regarded as being the continuation of the same transaction.</p> <p>In such an indictment it is not necessary to allege the legal existence or organization of the corporation, or the ownership of the road, nor to prove the same, unless the averment be such as to be matter of essential description.</p> <p>"Where the allegation was that the defendants “ wilfully and maliciously did place upon the track of the railroad of the Boston and Maine Bail-road, in Somersworth, two iron rails,” &c., — Held, that the averment was not one of property, but a description of the railroad where the obstructions were placed, and that parol evidence that the road was called and known by the name of the Boston and Maine Bailroad, was sufficient.</p> <p>Confessions obtained by the influence of hope or fear are incompetent evidence. But it is not necessary that the confession should be the prisoner’s own spontaneous act; and if it be made under the promise of some collateral benefit or boon, no hope or fear being held out in respect to the criminal charge against him, it will be competent.</p> <p>Where a prisoner stated that he was in company with an individual on the evening of the commission of the offence, and went to a place where he said the individual resided, and did business with him there, —Held, that evidence of unsuccessful attempts, made on the next day, to ascertain if there was any such individual, by going to the place stated, and making inquiries of persons residing there, was competent.</p> <p>An indictment need not state that it was found at a trial term of the Supreme Judicial Court. It is sufficient to state, generally, that it was found at a term of the Supreme Judicial Court.</p> <p>If an indictment set forth the town and county in which the offence was committed, it is sufficient, without stating that it was committed in this State.</p> <p>An indictment for maliciously placing obstructions on a railroad, need not aver that the road was a corporation, or carrier, or a way, or road used for travel.</p> <p>"Where the county is stated in the margin of an indictment, it is sufficient, in describing the place where the offence was committed, to say that it was in the town of A, “in the county aforesaid.”</p> <p>In an indictment upon the statute for maliciously placing obstructions upon a railroad, “ whereby the life of any person may be endangered,” it is not necessary that the names of the persons riding in the cars, whose lives are endangered, should be set forth. And where the indictment described the obstructions, accompanied by this averment, “whereby the lives of sundry persons, to wit, twenty persons, riding in said cars upon said railroad, were greatly endangered,” — Held, that the averment was sufficient.</p>

This action was commenced in tbe court of Common Pleas, January term, 1852. July 12, 1853, tbe defendants filed a confession for §200. The plaintiff refused to accept the confession in full of his claim, and prosecuted the suit for greater damages. At the August term, 1856, the action was tried, and a verdict found for the defendants, on which the Supreme Judical Court have ordered judgment.

<p>The burden, of proof is upon the party who asserts the affirmative of a proposition or issue, and he has the right to open and close in a trial before the court or jury. If, however, the affirmative of any issue is upon the plaintiff, he has the right to open the case to the jury, and make the closing argument.</p> <p>In determining which party is to begin and close, it is not so much the form of the issues which is to be regarded, as their substance and effect. If any thing is left for the plaintiff to show affirmatively, the right to commence and close is with him.</p> <p>The report of trial commissioners need not he put in evidence by either party, or submitted to the jury by the court, unless controverted by the statements of the parties, and overthrown by the verdict, it must guide the court in the rendition of judgment, whether put in evidence or not.</p> <p>Evidence of what a witness testified before trial commissioners may be introduced for the purpose of impeaching his testimony before the jury, although the report made by the commissioners, of the evidence given before them, contains no statement of such conflicting testimony.</p> <p>Evidence of prior indebtedness is not competent to rebut proof of the contracting of new liabilities.</p> <p>The report of trial commissioners, when put in evidence before the jury, is a proper subject of comment by counsel, in connection with the other testimony in the cause.</p> <p>When a cause has been referred to trial commissioners, judgment is to be rendered agreeably to their report, unless the same is controlled and overthrown by a verdict rendered specifically upon the facts put in issue by the statements of the parties, filed in accordance with the provisions of the statute.</p>

<p>The widow of every person deceased intestate, leaving no lineal descendant, is entitled, in addition to her dower, to one half the real estate in fee, and one half the personal estate absolutely, which may remain after payment of debts and expenses of administration.</p> <p>The widow of every person deceased testate, leaving no lineal descendant, for wliom no provision is made in the will, or who shall waive such provision, is entitled, in addition to her dower, to one third of the real estate in fee, and one third of the personal estate absolutely, which may remain after payment of debts and expenses of administration.</p>

In Chancery. This is a bill for relief, to which the defendants have filed a demurrer for want of equity in the bill. The case stated in the bill sufficiently appears in the opinion of the court.

In Chancery. The bill is filed by Joseph B. Doe against Benjamin Doe and Dearborn Doe. The statements and allegations of the bill and answers, and the proofs taken, so far as they are material to an understanding of the questions considered, sufficiently appear in the opinion of the court.

<p>A petition for a new highway in Wolf borough was referred to the county commissioners. At November term, 1856, they made a report, which was recommitted to them, and returned at the November term, 1857, with an additional report of their doings after the recommitment. To the first report was annexed a taxation of the costs, in common form ; and to the last was annexed an additional bill of costs, in which the commissioners charged for two travels, one in September and the other in October, 1857. Both reports were in favor of the petitioners — laying out the highway prayed for.</p> <p>The petitioners moved for the acceptance of the report, and the town of Wolf borough objected to the acceptance, for the reasons following:</p> <p>1. Because of the misconduct of the commissioners during the time the case was pending before them.</p> <p>In support of this objection, the town alleged and offered to prove that a-part or all of said commissioners permitted the petitioners to converse with them in relation to the new highway prayed for, and to present to said commissioners arguments and facts in favor of said new road, upon occasions when they were not in session for a regular hearing; that one or more of said commissioners, before making their report, made inquiries of persons, not under oath, concerning facts and circumstances touching the merits of the laying out of said new road, and the amount of land damages to be allowed, and received from such persons information and statements of facts material to the decision of the questions before them. Also, that while said petition was pending before them, and before the hearing upon said petition was closed, all of said commissioners joined in a discussion of the questions then under consideration by them, with a petitioner and other persons not under oath, concerning matters material to the case; and facts were stated and arguments used by one petitioner and another in favor of the new road, and against any improvement of the old road as a substitute for it.</p> <p>Also, that before the last mentioned conversation, one of the commissioners, in the presence and hearing of the other two members of the board, stated that it had been the custom for parties to say to the commissioners what they pleased, and where they pleased, or words to that effect; and the other two commissioners did not object to that remark.</p> <p>2. Because all the notices which were issued in this case, by the commissioners, to the town and to all landowners, were signed hy one only of the commissioners.</p> <p>3. Because the commissioners, in their last report, increased the damages to one land-owner, in the sum of twenty dollars above the amount allowed in the first report, when there was no re-hearing before said commissioners in relation to said damages, and said land-owner did not ask for any increase of damages.</p> <p>4. Because the commissioners, in their report, awarded damages to S. B. Carter, as guardian of J. Frost, said Carter not being the guardian, in due form, of said Frost, and having no right to the custody of his property; but having been appointed by the judge of probate merely to receive notice and to appear for said Frost in this case.</p> <p>5. The town objected to the allowance of the costs taxed by the commissioners for their going to Wolf borough on the 23d of October, 1857, because no hearing was had or intended at that time; that the commissioners had all the facts before them touching the petition, at the hearing in September previous, and the town was not notified that any hearing was intended to be had at that time.</p> <p>The town offered to prove all the facts stated in the four last objections. The court overruled the objections and accepted the report, to which ruling the town objected.</p> <p>Judgment having been rendered on the report, the said town files this bill of exceptions, which is allowed.</p>

<p>As the law now stands in this State, a married woman cannot make a devise of real estate to her husband.</p> <p>In the construction of a statute, all acts, in pari materia, are to he taken together, as if they were one law.</p> <p>Where it is apparent that the Legislature intended to revise a statute, the former statutes upon the subject, so far as in conflict with the last, are no longer in force, though not expressly repealed.</p>

This was a real action, tried, by agreement of tbe parties, by a commissioner. Tbe agreement purported to authorize tbe commissioner to make any amendment of tbe records of tbe town of Goshen, in wbicb tbe premises in question were situate, wbicb might be made by tbe Court of Common Pleas, on a trial of tbe action by jury. The plaintiff proved bis title, and tbe defendant offered evidence of title, under a deed from tbe. collector of taxes of Gosben, for 1850.

Trespass, for an assault and battery, alleged in the declaration to have been committed by the defendants, upon the plaintiff on the 13th day of November, A. D. 1854. Writ dated February 15, 1855.

<p>The owner of a close is not obliged to fence against any cattle hut such as are rightfully upon the adjoining land.</p> <p>This rule of law is not changed by section 12, chapter 136, of the Revised Statutes, which provides that “ the party neglecting to build, or keep in repair any partition fence which he is hound to maintain, shall he liable for all damages arising from such neglect; and shall have no remedy for any damages happening to himself therefrom.”</p> <p>The plaintiff and defendant were owners of adjoining closes, and had divided the partition fence between them. Cattle, belonging to third persons, which were wrongfully in the highway, strayed upon the defendant’s close, and thence across that part of the fence which he was hound to maintain, and which was out of repair, upon the plaintiff’s land, and damaged his crops. — Held, that the plaintiff could not maintain an action against the defendant for the damages.</p>

<p>In general, where jurisdiction, or the power to act, exists, and the only objection to its exercise is one intended for the benefit and protection of the party complaining thereof, such objection must be taken at the earliest practicable opportunity, after the party, or his counsel, is aware of its existence, or it will he regarded as waived by the omission or neglect to urge it seasonably.</p> <p>A party, cognizant, in the earlier stages thereof, of an objection that might he fatal to the validity of proceedings before a tribunal otherwise competent, cannot be permitted to lie by and take the chances of a favorable result, and, after an adverse one has been reached, be allowed to avail himself of that objection to avoid its consequences.</p> <p>Where, in a prosecution by a town for bastardy, the magistrate before whom the complaint was made and the preliminary examination had, was a resident citizen and tax payer of the complainant town, and these facts were known to the respondent and his counsel at the time, hut they designedly omitted to make any objection on that account until after various proceedings in courts of unquestioned authority having jurisdiction of the cause — Held, that the objection came too late, and must he considered to have been waived by the omission to urge it seasonably.</p>

Covenant broken, which had been transferred to the Supreme Judicial Court, and certain questions of law arising therein settled, as reported in 33 N. H. 120. The case before transferred, and upon which said decision was made, is referred to as part of this case, for a statement of facts and for descriptions in deeds.

Trespass, quare clausum fregit. John Little was alleged to be an insane person, and prosecuted the action by guardian. He had deceased pending the action, which was prosecuted since by the wife.

Writ of Entry, dated July 22, 1856, to recover a tract of land in Lyme. Tbe case was tried by tbe court upon tbe general issue.

Debt, upon a jail-bond, given by A. and J. Wendell as principals, and tbe other defendants as sureties, tbe condition of wbicb was not performed. Tbe bond was given to effect tbe release of tbe principals, from arrest upon an execution for costs, issued against them in favor of tbe plaintiff, upon a writ of review sued out by them against him.

In trespass de bonis asportatis, it is agreed that the plaintiffs are a corporation, duly established by the laws of this State, with the powers and duties incident to railroad corporations, and have duly adopted the provisions of chapter 128 of the Pamphlet Laws, and of the laws in addition and amendment thereto.

Writ or Entry, upon a mortgage to recover possession of land in Northumberland, for nonpayment of a note. Upon the general issue, the execution and delivery of the note and mortgage were proved.

<p>No formal delivery of personal chattels mortgaged is necessary, if the mortgage is duly executed and recorded according to the statute.</p> <p>As between the mortgagor and mortgagee of personal chattels, a specific and particular description of the several articles mortgaged, by which to identify them from other like articles of the mortgagor, in the same building, is not necessary.</p> <p>A mortgage of a specific number of articles, of a particular kind, in a house in which are other like articles of the mortgagor, gives to the mortgagee the right of selection.</p>

<p>The husband, without the cooperation of the wife, may convey the entire property in which the right of homestead exists, subject to that right; and the purchaser, under such conveyance of the husband alone, will hold the estate, subject to the assignment of a homestead of the value of $500 therefrom, whenever properly demanded by the party entitled thereto.</p> <p>Where the husband, in his life-time, conveys the real estate occupied by himself and wife as a family homestead, the wife not joining in the deed, after .his death, the widow, although out of possession, is entitled to claim and have assigned to her therefrom a homestead of the value of $500, which will vest in her as a conditional estate for life; its continuance depending upon the condition subsequent, that she continue to occupy it as her homestead.</p> <p>Petition for partition against the tenant of such real estate is a proper proceeding by such widow, whereby to obtain an assignment of her homestead therefrom.</p>

The town of Andover presented their petition to the county commissioners for the allowance of their claim for the support of Mary Heath, a pauper, and it was disallowed by them. The town then presented their petition to the Court of Common Pleas for its allowance. The town and the county commissioners agreed upon a statement of the facts, and the court disallowed the claim. The town filed its exceptions, and they were allowed.

Assumpsit, for board of tbe teacher of the public school in said district in the winter of 1855-6. It appeai’ed in evidence that Ebenezer Lord was chosen prudential committee of the district in March, 1855, and acted in that capacity during the year ensuing his election; that he hired a teacher for the winter school in that year, employed the plaintiff' to board him, and agreed to pay him therefor, and that the plaintiff boarded the teacher, as charged in the account in suit.

<p>The authority to punish contempt is a necessary incident, inherent in the organization of all legislative bodies, and all courts of law or equity.</p> <p>If the contempt be committed in the presence of the court, the offender may be ordered into custody without any warrant or written order; otherwise an attachment — the sole object of which is to bring the offender into court — may issue.</p> <p>An. attachment may issue in the first instance, or an order be made for the respondent to appear and shew cause why one should not issue.</p> <p>An attachment may generally be served by taking bail or a bond for the appearance of the respondent. When issued to enforce an appearance or an answer, or for not paying costs, or obeying an order or decree, the respondent should be brought into court.</p> <p>Attachments, to enforce an appearance or answer, should specify, or have endorsed thereon, the name of the suit and the object of the process. Those issued for contempt in disobeying an injunction need contain no such specification or endorsement.</p> <p>A proceeding for contempt is an independent matter, requiring distinct notices of proceedings to be given; and, after an attachment issues, it is regarded as a criminal prosecution.</p> <p>The respondent may submit his contempt to the court upon his own answer in the form of an affidavit, or he may demand of the prosecutor to file interrogatories for him to answer. The usual course, when the alleged misconduct is denied, is for the court to allow the prosecutor to file interrogatories in court, or before a master or commissioner, intended to elicit a full statement of the facts and circumstances of the alleged contempt. The respondent’s answer to these interrogatories, with such other testimony as the prosecutor and respondent may desire, are taken and reported to the court, who determine from the whole evidence the guilt or innocence of the accused.</p> <p>Interrogatories may be amended, or additional ones filed, for the purpose of explaining an ambiguity, or eliciting a fuller answer.</p> <p>The court determine the question of contempt. The respondent is not entitled to a trial by jury.</p>

<p>A review is a “ suit or proceeding,” within the meaning of the third section of the act of June 27, 1857.</p> <p>Such review, whether regarded as a new action, brought to correct the •errors of the former judgment, or as the revival or renewal of the former suit for the same purpose, is not “pending,” within the meaning of the same section, before the suing out of the writ of review by which it is commenced.</p> <p>Parties to a review, sued out more than three months after the passage and taking effect of the act of June 27, 1857, are not excluded from testifying as witnesses, by the provisions of its third section.</p>

These were petitions for the discontinuance of a highway, which were entered in this court at the March term, 1855. The petitioners then moved to refer the petitions to the Eoad Commissioners, and a motion was made in behalf of an individual who appeared to oppose the discontinuance, to dismiss the petitions.

This action was pending in the late Court of Common Pleas, was transferred to the present Court of Common Pleas, and there tried. A verdict was found for the defendant March term, 1856, and a judgment rendered thereon at the same term, open to review by order of court. The verdict being for the plaintiff, upon the trial of the action of review, the defendant claimed an appeal, which was disallowed by the court, and the defendant filed exceptions, which were allowed.

Debt, upon a judgment, recovered by the plaintiff against the defendants, before the Supreme Judicial Court of Maine. The defendants pleaded Nul tiel record, and Nil clebent, with a set-off. To the first a replication was filed, and to the second a general demurrer.

<p>In equity, several owners of the mills on one side of a river claimed the right to connect their dam with the hank on the other side, under a written agreement of the owner. It appeared that two persons, who were owners of the mills, and parties to the agreement, were not made parties to the hill. — Held, that they were necessary parties, either as plaintiffs or defendants.</p> <p>An agreement provided for the erection of a new dam, below an existing dam, and one of the parties stipulated that the “present mill-dam owners” might connect their dam to the west bank, of which he was owner, so long as they saw fit. The words were construed to mean, “ the owners of the present mill-dam.”</p>

Assumpsit against the defendant, as surviving partner in the firm of Charles Gr. Parsons. The declaration was for goods sold and delivered, and the specification was for sundry goods alleged to have been sold on the 16th of June, 1854. It appeared that the demand was assigned to Luther Aiken, before the commencement of the suit, which was prosecuted for Ms benefit in the name of the plaintiffs, and the writ indorsed by a resident of this State.

Writ oe Entry, ou a mortgage to recover possession of lot No. 529, on Chestnut street, in Manchester. The writ is dated December 29, 1856. Lots Nos. 528 and 529 were conveyed by Bichard H. Ayer to Daniel Gooden, and on the 7th of February, 1846, Gooden conveyed said two lots to Luther Farley, in mortgage, with the condition to secure the payment oí a note of five hundred dollars, of even date with said mortgage, payable in one year from its date, with interest.

Bill in Equity, 'against Stephen C. Lyford and John T. Coffin.

<p>Where a new highway is laid out partly over an old travelled road, the portion thus laid can properly be said to be constructed and opened for public travel only in connection with the construction and opening for travel of that portion of the same new highway laid over new ground; and the portion laid over new ground not having been constructed, a report recommending the discontinuance of all the new highway not constructed and open for public travel, is in substance and effect the same as a report recommending the discontinuance of the whole new highway.</p> <p>It is sufficient in a report discontinuing a highway to describe it as the highway laid out upon the petition of certain individuals named, without particularly setting it forth by metes and bounds, courses and distances.</p> <p>It is no objection to the proceedings of commissioners on a petition for discontinuing a highway, that they were required by their commission to report to the court, whether, in their opinion, it would be proper and for the interest of the public that the prayer of the petition should be granted, and the highway discontinued in accordance therewith.</p>

Assumpsit, on a promissory note for $1,200, dated January 13, 1849, signed by tbe defendant, payable to one Hall, and by him indorsed to tbe plaintiff. Tbe defendant filed a confession as to part, to wit, $600, and as to tbe rest pleaded tbe general issue. The plaintiff, having produced tbe note declared on, and its signature being admitted, rested bis case.

In Equity. The bill states that ~W. Clark, deceased, by his will gave legacies to his wife, brothers and sisters, and to the Home Missionary Society, $150, and to the Foreign Missionary Society $150, and directed his real estate to be sold after his wife’s decease, and gave two thirds of the proceeds to the Foreign Missionary Society, and one third to the Home Missionary Society, and appointed the plaintiff his executor.

<p>The justice’s certificate of the taking of a deposition did not state before ■whom the deponent was sworn. It was held, that a certificate made by the justice, after the depositions were returned to the court, and in no way connected with them, or with the original certificate of the taking, could not be received to remedy the defect.</p>

<p>A decree dismissing a libel for divorce, upon a hearing on the merits, is a bar to any future libel for the same cause; aliter, if the libel is dismissed for defect of proper allegations, or for want of prosecution, or on motion of the libellant.</p>

Assumpsit against the defendants, as indorsers of a promissory note signed by Paige & Young, payable to the defendants, or order, in ninety days, with interest, and indorsed by the defendants, “waiving notice.” Plea, the general issue. It appeared that the note was discounted by the plaintiffs at the request of the indorsers, and that a few days before it matured they applied to the hank to have the day of payment extended for sixty days.

Trespass, for that the defendants, on the 13th of March, 1855, assaulted the plaintiff, and restrained him of his liberty from said 13th until the 22d of said March.

<p>Writ of Entry. The plaintiff claimed as heir of her father, Newell Frost, proved that he was once owner of the land, and died intestate, leaving the plaintiff, one of five children.</p> <p>The defendant offered in evidence the extent of an execution issued on a judgment recovered by him against Newell Frost. No objection was made to the form of the levy, but the plaintiff contended that the extent was avoided by a tender which Newell Frost made to the defendant, and offered evidence tending to show that within one year from the return day of the execution, Newell Frost tendered to the defendant the sum at which th'e land was appraised, with interest from the time when the levy was received for record by the register of deeds, and that the money tendered was left with an agent near the defendant, for him, and never taken by Newell Frost, or any person for him or his heirs, and that the agent still held it.</p> <p>The plaintiff did not bring that money, or any money, into court, or make profert of it in any form at the trial. The court ruled that the tender avoided the levy, and that it was not necessary for the plaintiff to bring the amount into court, or make any profert at the trial.</p> <p>The defendant excepted to this ruling of the court, and the jury having returned a verdict for the plaintiff, moves that the verdict be set aside.</p>

<p>i If a railroad corporation is situated in another State, and the road and all property of the road are taxed in that State to the corporation on the i same valuation, and at the same rate as the property of individuals, a i stockholder, residing in this State, is not liable to be taxed here for his I stock in the road.</p>

Assumpsit. The writ was dated February 16, 1855, and contained two counts: the first, upon balance of account annexed, for the services of the plaintiff for the defendant, in the Portsmouth Steam Factory, and as housekeeper; and the second, a general count for labor and services done and performed.

<p>Trespass, for taking and carrying away a quantity of wood. The declaration was as follows:</p> <p>To answer to William Clark and Amos Clark, of said Hampstead, yeomen, and John S. Lamprey, of Plaistow, in said county, yeoman, in a plea of trespass, for that the defendant, at said Hampstead, on the 1st day of January, 1855, and on divers days and times between the first day of January aforesaid, and the day of the date hereof, with force and arms, broke and entered the plaintiffs’ close and took and carried away twenty cords of wood, of the value of $100, of the goods and chattels of the plaintiffs, and converted the same, &c.</p> <p>The defendant pleaded:</p> <p>1. The general issue.</p> <p>2. That at the annual town-meeting, holden in Hampstead, on the second Tuesday of March, 1855, he was duly elected collector of taxes, for said town, for the year then next ensuing, and was sworn, and gave bonds, as required by law, for the faithful performance of the duties of his office; and on the twenty-seventh day of April, 1855, had committed to him, by the selectmen of Hampstead, a list of taxes duly assessed by the selectmen for that year, under their hands, with a warrant under their hands and seals, directed to him as such collector, directing him to levy and collect of the several persons named in said list, the taxes in said list, set against their names respectively.</p> <p>8. That on the first day of April, 1855, the plaintiffs were the owners of the close mentioned in the declaration, and of a quantity of wood lying thereon, and the selectmen, in said month of April, taxed the plaintiffs for said land and wood, the sum of twenty dollars and sixty-three cents, which tax was contained in the list aforesaid, and set down therein to the plaintiffs by the name of William Clark et all., and the defendant, having the list, duly notified the plaintiffs of the taxes assessed against them as aforesaid, and the plaintiffs having neglected for more than fourteen days after such notification to pay the tax, and said William Clark, having charge of said close in the declaration mentioned, and the wood lying thereon, and, acting for himself and said Amos Clark and John S. Lamprey, having shown the defendant the wood whereon to make distress, the defendant entered upon the close, and distrained upon a quantity of the plaintiffs’ said wood, to wit: ten cords and seven feet of hard wood, and fourteen cords and one half foot of pine wood, to satisfy said tax.</p> <p>The plea then sets forth the sale of the wood, and that the taking and selling was the trespass complained of.</p> <p>There was also a third plea substantially the same as the second. Also several replications and demurrers, which are not necessary to be stated.</p> <p>The court below gave judgment for the plaintiffs, upon the demurrers, and the defendant filed his bill of exceptions.</p>

In Assumpsit. The facts agreed were as follows: Charles W. Cutter, son of Jacob Cutter, and brother of Ralph C. Cutter, was appointed navy agent of the United States, at Portsmouth, by a commission signed by the President, dated September 18, 1849, to continue in force four years from October 1, 1849.

<p>If a trusteeing creditor, who has presented the claim of his debtor against the deceased trustee, to the commissioner of insolvency on his estate, would avail himself, on appeal from the decision of the commissioner, of any ground for sustaining the claim, which would not be open to the debtor prosecuting the appeal in his own name, it is necessary for him to set forth, in his declaration, filed in pursuance of the statute on claiming the appeal, the facts which place him in the position to entitle him to that advantage.</p> <p>An amendment of the declaration, filed on the. appeal which introduces such facts, is admissible, and an amendment of the specification, which merely describes with more precision the claim presented to the commissioner, without adding a new claim, is also admissible.</p> <p>Where the trustee dies before disclosure, and his administrator, being summoned in, makes disclosure, the trial by jury, had on appeal taken by the trusteeing creditor from the decision of the commissioner, disallowing the claim of the principal defendant against the estate of the trustee, takes the place of the trial by jury, at the election of the plaintiff, after disclosure directly under the trustee suit, and it is to be conducted according to the course prescribed for such trial, by the laws regulating the trustee process. Upon such trial, therefore, the principal defendant may be a witness, and any evidence is competent which would be admissible on trial of the question as to the liability of the trustee, directly under the trustee suit.</p> <p>A separate trial may be ordered, in the discretion of the court, to determine the liability of the estate as trustee, from that which is to be had on the appeal of tbe principal defendant in his own name, to determine the indebtedness of the estate to him; and it is good cause for allowing such separate trial, that the principal defendant may be a witness on the trial of the liability of the estate as trustee.</p>