Volume 38 — New Hampshire Reports

<p>Where a partnership is conducted under an agreement to share profit and loss in proportion to the capital furnished hy each partner, in the absence of any settlement or special contract, one partner cannot under the statute maintain an action at law against another, during the continuance of the partnership, for neglect by the defendant, on demand, to pay over or account for the plaintiff’s share of certain specified sums, received by the defendant on partnership account in the usual course of the partnership business.</p>

<p>A committee appointed by the court of probate to make partition of a deceased person’s estate, may give to the share of one tenant a right of way over land assigned to the other tenants.</p> <p>If the committee assign to one share the “ privilege to pass and repass to and from, in and around” the lands assigned to the other shares, “in the usual pass-ways,” the partition creates a valid right of way in such pass-ways.</p> <p>But the right will be limited to such pass-ways as were in existence and in a condition to be used at the time of the partition, and were marked on the ground by a distinguishable track, or otherwise so defined as to be fixed in a certain course.</p>

Assumpsit, to recover $442.75, being tbe amount paid by the county to the keeper of the jail, for board, medical attendance, clothing, and other prison charges, of certain persons committed to the jail in said county, during the years 1856-7-8, by different justices of' the peace in said Somersworth, on convictions for violations of chapter 113 of the Revised Statutes.

'Writ or Entry on mortgage, to recover possession of certain real estate in Rochester, in this county, for condition broken and for the purpose of foreclosing the right in equity to redeem the same. The action is founded on a deed of mortgage from one Elijah Roberts, now deceased, to the plaintiffs, dated January 12, 1846 ; acknowledged and recorded the same day.

<p>Where a deed of the wife’s land purports to be the conveyance of the wife alone, and contains no recital that the husband is a party, but is executed by the husband and wife, it is the deed of both, and passes the title of both.</p>

This action having been, in the Court of Common Pleas for this county, referred to a trial commissionei’, and notice given to the defendant, who is a citizen of New-York, and has never resided in New-Hampshire, to appear before the commissioner to testify, and he having neglected to appear, the commissioner reported that fact to the court.

Assumpsit, upon a promissory note signed by tbe defendant’s intestate, and three other persons. This is the same action reported as Ward v. Cole, 32 N. H. 452.

<p>To entitle the venden.1 of a machine, sold with the right to use a patented article therewith, to recover the price agreed to he paid, it is not incumbent on him to produce evidence of his right under the patent, unless it appears that the vendee has been interrupted in the use of the patented article, hy one whose right, prima facie, is violated by its use.</p> <p>Such sale implies a license to the vendee to use the article patented, and the license is not within the provision of section 11 of the act of congress of July 4,1836, (5 Statutes at Large 121) which requires the assignment of a patent, or of any interest therein, or the grant of the exclusive right under the patent, to make and use the patented article, to be in writing.</p>

Writ or Entry. The following facts appeared on trial. On the 13th of May, 1822, Jonathan Eastman, being seized of the demanded premises, devised them to his son, Jeremiah Eastman, for his life, and devised the land over in the following terms: “And after the death of my said son Jeremiah, I give and devise the same lands to the oldest son of the said Jeremiah that may be then living.” Jonathan Eastman died seized, and Jeremiah Eastman, in 1847, conveyed by quitclaim deed all…

Case, for enticing away from bis service and barboring tbe minor son and servant of tbe plaintiff. It appeared in evidence that tbe boy had lived from early cbildbood with tbe defendant’s father, in tbe State of Vermont, till the 25th of April, 1853, when tbe plaintiff, bis father, took him borne, intending to keep him. He was then about fourteen years old.

<p>In laying out a highway, land upon which buildings are erected may be taken.</p> <p>But where any interest in land is thus taken for the public use, the owners are entitled to notice and damages; and the laying out of a highwajr cannot he sustained unless it appear that due recompense was allowed to the land-owners, and that they had an opportunity to he heard upon the question of the laying out, and the damages.</p> <p>When a highway is laid out, and no notice is given to some of the owners or damages awarded them, the laying out is, to that extent, invalid.</p> <p>Where a highway was laid out over land on which a house was standing, and no notice was given to the owner, or damages awarded him — Held, that an indictment for a nuisance, in continuing the house in the highway, could not he sustained.</p>

In Equity. The bill alleged that Twifcchel, on the 5th day of September, 1854, by his deed of that date, duly executed, conveyed to Hatch, Huntoon & White, in mortgage, a tract of land in Newport, particularly described, with the buildings thereon, to secure the payment of said Twitchel’s note to them for $1000, of even date, payable on demand, with interest after ninety days; that said premises, so mortgaged, were the homestead of Twitchel and wife, and occupied by them as…

Probate Appeal. Amos Tenney, late of Claremont, in this county, died in May, 1839, leaving a widow, Lucy It. Tenney, and three children, Amos J. Tenney, Emeline E. Tenney, and Lucy E. Pomroy.

<p>An indictment for selling one pint of spirituous liquor is sustained by proof of tbe sale of two glasses of sucb liquor.</p> <p>On tbe trial of an indictment, tbe respondent cannot be permitted to testify, under tbe provisions of tbe act of June 27, 1857, cb. 1952, and of tbe amendatory act of June 25, 1858, cb. 2090.</p>

Writ or Error, brought to reverse a judgment for eosts. The case was referred to a commissioner, to tax the bill and make report to the court. On the hearing before him, the plaintiff in error called upon the defendant in error to testify as a witness as to some disputed items in the bill.

In Error. The writ was brought to reverse a judgment rendered in the court of Common Pleas for the county of Grafton, in favor of the defendants, against the plaintiff in error, for costs. Two errors were assigned : First, that judgment was rendered that the plaintiff’s writ be quashed, when it should have been that the writ be sustained, and that the defendants answer to said action.

Assumpsit, upon the general counts, for money lent and advanced, paid, laid out and expended, had and received, and for interest on money due from the defendant. The plaintiff’s specification is for cash lent in September, 1852, $75, and interest thereon. Plea, the general issue, with a set-off, consisting of three items: 1. Cash paid by the defendant for the plaintiff, in September, 1852, on a judgment recovered by J. Pendergast against the parties and two others, $94.81. 2.

Scire Facias against Blaisdell, as administrator of Joseph. T. Gilman, summoning him to appear and show canse why-execution should not be awarded against him, de lords propriis, on a judgment recovered by the plaintiff, Folsom, against Blaisdell, as said administrator, in a suit brought in the name of Blaisdell, as administrator, by one Plummer, for his own benefit, upon a promissory note given by Folsom to the intestate, and in which action Blaisdell became nonsuit, and…

<p>Objections to the regularity of proceedings, or to the competency of a tribunal having general jurisdiction of the subject, will be considered as waived, unless shown to have been taken at the earliest practicable moment after the facts on which they rest become known to the party taking them.</p> <p>In prosecutions for bastardy, the child whose paternity is sought to be established, may properly be exhibited to the jury; and its appearance, complexion and features are legitimate subjects for comment by counsel, in connection with the testimony of witnesses in the case.</p> <p>A verdict will not be set aside because a juror has privately taken, in an ante-room, apart from and without the knowledge of his fellows, as a medicine, for the relief of a disease under which he was manifestly laboring, a small quantity of spirituous liquor, during the deliberations of the jury.</p>

Assumpsit, to recover the following sums expended for the relief of paupers, alleged to have their settlement in Barnstead. Writ dated August 29, 1855. 1855. — May 21.

Tbe facts were these: On tbe first day of October, 1856, tbe directors of tbe Great Falls and Conway Railroad assessed upon eacb of the shares of tbe capital stock of tbe corporation, tbe sum of sixty dollars, to pay tbe debts of tbe same. Tbe shares bad been previously assessed for one hundred dollars each, and tbe assessment made on said first of October was in addition to that sum.

The complainant, Daniel Whitton, in his bill alleges that Jesse Whitton, his father, now deceased, was seized in fee of one undivided half of a farm in Wolf borough, bounded, &c., in common with his other son, Jesse Whit-ton, Jr., now deceased, who was seized of the other half thereof in fee; and said Jesse and Jesse, Jr. occupied the same as tenants in common, to the death of Jesse, Jr., December 9, 1854.

<p>In an action to recover of an individual stockholder a debt due from a railroad corporation, the declaration must contain a special averment that the defendant bad notice, before suit, of neglect by the corporation to pay the debt or expose sufficient personal property within sixty days after demand.</p>

<p>The defendant in a writ of entry cannot defend against the legal title of the plaintiff, by proving, on trial, that he entered under a written agreement with the plaintiff, for the purchase of the demanded premises, and since the entry had paid the stipulated price, and was entitled, hy performance of the agreement, to a conveyance of the legal estate.</p>

Assumpsit, to recover one half the fees of fence-viewers, paid to them by the plaintiff for making division of fence between the parties. The court ruled that to enable the plaintiff to recover under the statute, he must have demanded the defendant’s share of the fees before commencing his suit.

Assumpsit, on a promissory note signed by the defendants, dated tbe 8th day of March, 1854, for $2,500, payable in three months from date, to the Bank of Newbury, at their banking-house at Wells Biver.

<p>Trespass does not lie by the general owner for taking from the pledgee personal property pledged for a debt.</p> <p>If the proceedings of a court are reversed for error merely, they afford a justification for all things done under them before the reversal.</p> <p>A writ of restitution, after a reversal for error, issues only for the amount for which the goods taken on execution were sold; not for the value of them.</p> <p>Trespass does not lie to recover the difference between the value of the goods and the amount of the sale.</p>

Upon a motion to reject tbe report of the county commissioners, denying the application of Hayward and others for a highway in Bath and Landaff, the following exceptions were taken: 1.

George H. Dow, in his petition, sets forth that he is a son of Asa and Caroline E. Dow, and seventeen years of age. Said Asa and Caroline were divorced, on her application, at July term, 1857, and the custody of the petitioner and a younger sister was granted to said Caroline. About seven hundred dollars in personal property were assigned to her as alimony.

Assumpsit, for the price of two pigs, sold and delivered by the plaintiff to the defendant. The action was brought before a justice of the peace, tried on the general issue before him, and came by appeal to this court.

Exceptions to the judgment of the Court of Common Pleas, accepting the report of the commissioners laying out a highway in the towns of Hebron, Alexandria and Bristol. The petition describes the route as commencing at, &c.; “thence southerly on the westerly side of ‘New-found Pond,’ ” &e., to a stake and stones, &c. The northern terminus of the route described is on the westerly side of said pond, and more than a mile from the north end thereof.

<p>One who, acting as overseer of the poor of a town, receives money on a contract made hy him in behalf of the town with the principal defendant, which is illegal because against public policy, cannot be held as his trustee after the money has been entered on the account of the overseer to the credit of the town.</p> <p>An agreement between the overseer of the poor and a husband whose wife is supported as a town charge, that the town will refrain from making opposition to a libel for divorce filed by the husband against the wife, is against public policy, and void.</p> <p>The town may be charged as trustee of the husband, at the suit of one who was a Iona fide creditor at the time of the receipt of the money under such illegal contract; it being made to appear that the husband was then insolvent, or in embarrassed circumstances; but the amount for which the town is to be charged is to be det'ermined, as in the case of a voluntary conveyance by the debtor, upon an equitable adjustment of the mutual claims between the husband and the town.</p> <p>Where, by the terms of the illegal agreement, the money received under it was to be applied by the town to liquidate past expenses in support of the wife, and to indemnify against her future support, the town is entitled to retain so much as may be necessary to defray the expenses of her support while the husband continues liable for it.</p>

Indictment, charging the respondent with having knowingly and wilfully, at Landaff, in said county, on the 9th day of December, 1857, with force and arms, obstructed one Cyrus Willis, a deputy of the sheriff of this county, duly authorized and specially appointed for that purpose, in the service of a certain writ of attachment, particularly described and duly and legally issued, the same being a lawful process in a civil case, said Willis being then and there duly and…

Trespass. Writ dated March 27, 1857. The declaration alleged that the defendants, on the 16th day of March, 1855, and on divers days and times between that date and the purchase of the plaintiff's writ, with force and arms, broke and entered the plaintiff’s close, situate in Lisbon, in said county, being that part of the Guy Young farm, in said Lisbon, reserved to himself in his deed of said farm to Joel Streeter, and with engines and cars dug up and subverted the soil of…

<p>A license to sell spirituous liquors, granted under the act of 1849, gave no vested right, and was revolted and annulled by the repeal of that statute before the expiration of the time limited in the license.</p>

<p>Where a policy of insurance is assigned, the action must be’brought in the name of the original assured, unless, by the assignment and the assent of the company, agreeably to their charter and by-laws, the assignee becomes substituted as the member of the company.</p> <p>Where a by-law provides that the policy shall become void if the premises are alienated by sale, mortgage, or otherwise, unless certain things are done, it was held that a mere mortgage was not an alienation, within the meaning of the by-law.</p> <p>A provision that if the risk should be increased by the acts of others, notice should be given and an additional premium secured, was held valid. It is a question for the jury whether a change increases the risk.</p>

Case upon the statute, to -recover damageB for the burning of a highway bridge over the Merrimack river, in said town of Hooksett.

Petition for increased damages, under the following circumstances: A public highway was laid out in Warner, by the selectmen. At the time the selectmen gave notice to the land-owners, one piece of the land through which the road was to pass belonged to and was owned by Nehemiah G-. Ordway. After service of notice upon Ordway, and before the day of hearing, Ordway conveyed his land through which the road was to pass, to the plaintiff, by deed of warranty and in fee simple.

<p>The only record evidence of the administration of the oath prescribed for the ease and relief of poor debtors, and of the service of the order of notice on the creditor, is the certificate of those facts, signed in conformity to the statute by both magistrates before whom the oath was taken.</p> <p>Such certificate is only prima facie evidence of those facts, and they are open to parol proof; whether or not the certificate was made, and whether or not there is any other record of them made by the magistrates, or either of them.</p>

<p>Assumpsit cannot be maintained to recover money due upon a contract under seal, unless there has been a waiver, abandonment, or rescinding of the contract.</p> <p>By contract under seal, one party leased to the other a paint shop connected with his carriage manufactory, for one year, for the rent of forty dollars, to be paid in painting. The lessee covenanted to pay the rent in painting, but without a stipulation as to the time the work should be done; and also covenanted to paint the carriages and sleighs manufactured by the lessor, at certain specified prices, within a reasonable time after they should be delivered to him, and the lessor covenanted to pay whatever might be due to the lessee for painting on the first days of certain specified months, within the year. — Held, that the amount due for painting, on each of the specified days of payment, was to be determined by deducting from the whole amount of the work done between that and the next preceding day of payment, the proportion of the rent which accrued during that time, at the rate of forty dollars for the year.— Held, also, that an action, brought on one of the days of payment, on account of the work done between that and the next preceding day, was premature, although preceded by a demand made on that day.</p>

Trespass, for breaking and entering tbe plaintiff’s close, in Cbicbester, and injuring and destroying bis grass and other crops. Plea, tbe general issue. Tbe action was commenced in tbe Court of Common Pleas, and at tbe first trial there was much controversy about tbe easterly line of tbe premises in question. Tbe plaintiff’s close was bounded easterly by tbe defendant’s land, and there was a brook running from north to south, nearly upon tbe line between their lands.

Assumpsit, for the support of a pauper. A material question was whether the pauper had gained a settlement in Canaan, by being taxed for his poll seven years in succession, and paying all taxes assessed against him.

<p>Ho suit can be commenced and maintained against the stockholders of a corporation whose object is a dividend of profits among its stockholders, to recover of them any debt or civil liability of such corporation, until sixty days “ after a legal demand of payment thereof shall have been made upon the company.”</p> <p>Such “legal demand” should be a request for the immediate payment of a debt or liability fully due and payable, made personally by the creditor or his authorized agent, holding and exhibiting or stating verbally and specifically the character and amount of such debt or liability, upon some officer or agent of the corporation shown by evidence, or by law and usage entitled and so presumed to hold the funds of the corporation for the purpose of adjusting and paying, and whose duty it is, according to law or the by-laws and course of business of the corporation, to liquidate and pay such debt or liability, at his office or other usual place of business, during business hours of the day of the demand; or upon some officer or agent of the corporation, whose duty it is to see that the debts of the corporation are duly paid, and that means are seasonably provided for and applied to that purpose, or that a meeting of the stockholders is called to provide such means.</p>

Debt, upon a judgment rendered in the Court of Common Pleas for this county, March term, 1857. The defendant pleaded that an execution had issued upon said judgment, and thereupon the defendant had been arrested and committed to jail, and that afterward the plaintiffs voluntarily discharged the defendant from confinement, and he was suffered to go at large.

Assumpsit against the defendants, as late partners, jointly doing business under tbe firm name of S. Hovey, to recover the amount of tbe account annexed to tbe writ,… Held: no partnership as to third persons. Where A. made a contract with B. to manufacture certain articles for him, B. to furnish the material, and A. was to have one half the profits, and ten per cent, on all sales made by himself, it was held no partnership as to third persons. Judson v. Adams, 8 Cush. 556.

Trover for twelve gold watches. The plaintiff claimed property in the watches under a mortgage from Stanford Hovey, made and recorded January 12, 1857. The plaintiff proved his mortgage, which was for an individual debt due from Hovey alone.

<p>Criminal informations, which are filed by an officer of the government, and not founded upon the oath of the grand jury, may be amended by the court at any time before trial.</p> <p>In the laying out of a highway, want of jurisdiction renders the proceedings void; but irregularities and errors, in the course of the proceedings, make them merely voidable, and they remain valid until legally avoided by the party or persons having the legal right to interfere.</p>

<p>A verdict will not "be set aside for the admission of immaterial evidence, unless it is quite apparent that it influenced the jury in their decision.</p> <p>"Where the plaintiff was the mother of the defendant, and incompetent "but immaterial evidence was admitted, subject to exception, consisting of vile, profane and abusive language used by the defendant in regard " to the plaintiff — Held, that such evidence, being highly calculated to prejudice the minds of the jury and influence their decision, and being ruled admissible by the court, the verdiet should be set aside.</p>

Libel for a divorce. A commissioner, residing in this county, was appointed to take testimony generally, in the usual and common form. He went to Lowell, Massachusetts, and took the deposition of a witness, and administered the oath to him there. It did not appear that the commissioner was a magistrate of Massachusetts.

Indictment, charging tbe respondent with the crime of forgery, in having altered, at Manchester, in said county, on the fourth day of August, 1857, a bond of that date, in the penal sum of forty thousand dollars, signed by, himself as principal, and by Samuel Andrews and Luther Aiken as sureties', given and payable to Thomas P. Webber.

Assumpsit upon a policy of insurance to recover for a loss by fire. The case was submitted to the court upon an agreed statement of facts raising several questions as to the validity of the policy, one only of which is necessary to be stated.

Writ oe Entry, to recover an undivided twelfth part of tbe Moor farm in G-offstown. Plea, nul disseizin.

<p>A mortgage of real estate, made to secure an existing debt, is valid pro tanto, although it may also have been intended to secure future advances, as to which it is inoperative and void under the provisions of the statute.</p> <p>The answer of a defendant in equity, responsive to the allegations of the bill, is to be taken and regarded as true, unless disproved by the testimony of two credible witnesses, or that of one such witness, with corroborating circumstances.</p>

Assumpsit-, upon a joint and several note, dated September 17th, 1855, for $170, payable to the plaintiff, or order, in thirty days from date, and signed by Chase as principal and Walker as surety. Plea, the general issue. The action was commenced in the Common Pleas, and brought by appeal to this court. Chase was defaulted in the Common Pleas.

<p>As a general rule, where the deposition of a witness has been properly taken, to he used at the trial of an action, but at the time of trial the witness is in court and called to the stand, the deposition is excluded.</p> <p>If, when called to the stand, the witness declines to testify, on the ground that he cannot do so without criminating himself, and is thereupon excused from testifying, the deposition is not thereby rendered admissible.</p>

<p>Under the statute of New-Hampshire, in order to maintain scire facias against an administrator, it is sufficient to allege that the sheriff has made a return of nulla Iona upon an execution against the goods and estate of the deceased. It is not necessary, in addition, to allege or suggest any waste or misapplication of the funds.</p>

<p>Under the statute of this State, no trust in lands can be created unless by-writing, except such as arises or results by implication of law.</p> <p>Parol evidence is admissible to establish a fact from which the law will raise or imply a trust, but not to prove any declaration of trust or agreement of the parties for a trust.</p> <p>A trust in lands cannot be shown by .the declarations of the grantee that-he holds the lands in trust.</p> <p>A bill in equity charged that the complainant made an absolute conveyance of lands to the defendant, but upon a parol agreement between the parties that the defendant should reconvey the premises upon certain conditions, on request. The answer denied the trust. The plaintiff’s evidence showed merely repeated statements of the defendant that he held the lands in trust. — -Held, that a trust could not be thus shown, and that the bill should be dismissed.</p>

<p>A decision upon an agreed case, or an agreed statement of facts, is final to the extent to which it goes. If the parties desire the ease to be amended or discharged, or the facts to be varied, steps must be taken to effect the object before the decision is announced.</p> <p>The parties to a suit entered into this agreement: “That if the court shall be of opinion that the action can be maintained upon the facts reported by the commissioner, the damages shall be assessed by a jury or an auditor; but if otherwise, the plaintiffs shall become nonsuit.” Upon this agreement the commissioner’s report was transferred to the Supreme Court, who decided that the action could be maintained. — Held, that on going to the jury, after such decision, the only question was that of damages, and that the facts stated by the commissioner, on which the decision had been founded, were not open to be controverted.</p> <p>W here a party desires further instructions to be given to a jury than those that are given, but does not move the court in regard to the matter, the verdict will not be set aside because the instructions are not given.</p> <p>Before the court can be required to give particular instructions, there must be evidence, relevant and pertinent, on which to found them.</p>

Assumpsit, to recover of the defendants assessments upon their premium note given for a policy of insurance.

<p>Applications to a court of equity, to decree the specific performance of contracts, are addressed to its sound and reasonable discretion, and relief is to be granted or refused according to the circumstances of each particular case. The granting of such relief must appear to be entirely equitable.</p> <p>It is not the province of a court of equity to enforce stale demands.</p> <p>If the plaintiff has been guilty of gross laches, or applies for relief after a long lapse of time unexplained by equitable circumstances, or has apparently held back from an assertion of his rights for a long period with a view to speculate on the possibility of such changes by the lapse of time as might determine it to be for his interest to have the contract executed, specific performance will not be decreed.</p> <p>Where the specific performance of a contract to convey a reversionary interest in land, was sought after the lapse of nearly ten years, and after the reversion of dower, as it existed at the date of the contract, had been, converted, by the untimely death of the widow into a present estate in fee, and there was no satisfactory explanation of the causes of the delay, relief was refused, and the bill dismissed. •</p> <p>Where no time of payment is specified in a contract for the conveyance of real estate, the purchase is to be completed in a reasonable time; and what is a reasonable time is to be determined by all the circumstances of the transaction. If the estate contracted to be conveyed be of greater or less value according to the effluxion of time, it is manifest that time is of the essence of the contract; and any stipulation as to time in such contract, whether expressed or implied, must be literally complied with in equity as well as in law.</p>

This is a petition for a new trial in the action Davis v. Handy, in which, judgment was rendered for the plaintiff, the present petitionee, according to the opinion of this court in the case as reported in 37 N. H. 65. The petitioner alleges that injustice was done by said judgment, through accident, mistake, and misfortune, and that a new trial would be just and equitable.

Among the reasons of appeal which was taken by the ward, is the following: because the judge of probate allowed the guar'dian the sum of eighty-four dollars on account of expenses at the probate court, a part of which were incurred in resisting--the application of the ward for a revocation of the guardianship. The appeal was referred to an auditor, with instructions to enquire and report the facts.

<p>If land is devised to A for lifej. remainder to B for life after tlie death of A, remainder to the heirs of B after the death of B, the remainder to B is, during the life of A, contingentno estate of inheritance vests in B during the life of A, and B’s quitclaim deed of the land, made in the lifetime of A, will not estop the heirs of B, after his death and the death of A, from claiming the remainder limited to them.-</p>

<p>An ordinance of the city of Dover, prohibiting restaurants 31b be kept open after ten o’clock at night, is authorized by the charter, and is not in conflict with the constitution of the State.</p>

Petition eor a new Trial. The petition sets forth that, in 1842, Timothy Dame was possessed of a tract of land in Farmington, containing twelve acres, more or less, of which the boundaries are stated. In that year the petitioner, Edward Dame, by permission of said Timothy Dame, erected on said tract a dwelling-house and barn, of the value of $500.

Foreign Attachment. The following facts appear by the disclosure: On the 14th day of December, 1857, George W. Rogers, the principal defendant, was the owner of a stock of goods in Dover, consisting of hoots, shoes, some dry goods, fancy articles, &e., which he was selling at retail.

<p>As a general rule, the express mention of one thing in a grant implies the exclusion of another.</p> <p>"Where a grantor by his deed conveyed the right to flow his land below a specified point, but no mention was made of the land above, and the grantees at the same time gave him a written agreement, stating that they had purchased the right to flow below, for which they were to pay him reasonable compensation — Held, that the right to flow above the specified point was not granted.</p> <p>A grantor conveyed a piece of land by metes and bounds, and then added, “ containing two acres, more or less, and embraces all the mill privilege on the Rochester side of said falls.” — Held, that this was not a covenant that there was a mill privilege within the boundaries of the land, and that the term “ embraces,” as used in the deed, was not a term of grant.</p>

<p>A promise, contained in the deposit note given by the insured to a mutual fire-insurance company, upon the issuing of a policy to him, “ to pay to the company or to their treasurer” the assessments which may he ordered by the directors, is not a promise in the alternative' to one of two distinct parties, hut whether viewed as a promise in terms to the company, or to their treasurer, is in either case a contract with the company, for the non-performance of which the right of action exists in ' them alone.</p> <p>When the promise in such deposit note is set out in the declaration as a promise “ to pay in such portions and at such times as the directors, agreeably to the act of incorporation and by-laws of the company, may require,” and the breach assigned is the non-payment of an assessment ordered by the directors, without averring that it was ordered agreeably to the act and by-laws, or without alleging the time when it was ordered to he paid, the declaration is had on demurrer.</p>

<p>Where a debtor has an undivided share in several- tracts of land descended to him from his ancestor, and his creditor has against him two executions, and at the same time levies one execution on the whoie of the debtor’s interest in one tract, and the other execution on the whole of his interest in all the other tracts, the levy, being in other respects duly made, is valid.</p>

This was an Information, filed by the Attorney-General, at the relation of the Trinitarian Congregational Society in Dublin, and the Reverend… Held: at the time the will was executed, by members of the Congregational persuasion, and which doctrines are in substance those contained in the “Assembly’s Catechism,” so called, taken as a whole, and in particular the doctrine of the Holy Trinity, of native total depravity, of vicarious atonement by Jesus Christ, of a supernatural…