Volume 39 — New Hampshire Reports

Case, for an injury sustained by the plaintiff, by reason of an alleged defect in a highway. • In defence, it was contended that the plaintiff did not use ordinary care, in this, that a nut was off from his carriage, and this occasioned the accident, and that the plaintiff knew that the nut was off’ before the accident.

Libel for Divorce, filed by the wife for the adultery of the husband. It appeared in evidence that the parties were married in Massachusetts, and in 1846 removed to Winchester, in this county, where they continued to live together as husband and wife until April, 1855, when the husband abandoned her and refused to live with her. In June, 1857, he went to the State of Indiana, and immediately applied for a divorce, and in October of that year a divorce was decreed.

<p>The administrator of a deceased partner, who has paid a partnership debt, cannot maintain assumpsit against the surviving partners, to recover of them their proportion of that debt; the affairs of the partnership never having been adjusted, and no express and special promise to pay being shown.</p>

Case, to recover of the defendants damages alleged to have been committed to the plaintiff’s grass and crops growing upon Ms lands, adjoining the defendants’ railroad, by cattle trespassing thereon, in consequence of the neglect of the defendants to erect,and maintain suitable fences upon both sides of their track.

Trespass, for an assault and battery, originally brought in the Common Pleas. The plaintiff recovered a verdict in that court for $18.33 damages, and upon his appeal to this court, and a trial therein, he recovered $33.33. The defendant moved that, the costs be limited.

Petition eor Certiorari. On tbe 17tb day of December, 1857, E. T. Sibley and others filed in the office of the clerk of the court of Common Pleas for Sullivan county, their petition in writing, addressed to the justices of said court at the term thereof to be holden at Newport, within and for said county, on the fourth Tuesday of January, 1858, asking for the establishment of a new highway, “ commencing near the bridge that covers the stream on the highway leading from…

Writ of Entry, to recover a piece of land in G-ilmanton, part of lot No. 15, in the second range of hundred acre lots in the first division, being about fifty-nine rods long, and one rod and six feet wide at one end, and two rods six feet at the other. Plea, nul disseizin. The demandant showed title in himself to thirty-three acres of said lot, derived from John and Peter Dudley, and contended that the demanded premises were a part of said thirty-three acres.

Trespass, for taking and carrying away one yoke of oxen, alleged to be the property of the plaintiff. On the 6th day of January, 1857, Joseph P. Parrar made to the plaintiff a mortgage of certain personal property, including said oxen, then owned by Parrar, to secure the payment of his promissory note to the plaintiff for the sum of $288.

<p>unnecessary words in an indictment may, on trial or arrest of judgment, be rejected as surplusage, if the indictment will be good after striking them out.</p> <p>"Where the offence described in an indictment is a complicated one, comprehending in itself various circumstances, each of which is an offence, a respondent charged with a greater offence, thus described, may be convicted of one of lesser degree contained in it.</p> <p>Upon an indictment for assaulting and obstructing an officer in the service ' of process, a conviction may be had for assault and battery only.</p> <p>To give, the court jurisdiction of such an indictment, it is not necessary that there be a preliminary examination before a magistrate; and a conviction upon it for assault and battery simply, does not oust the court of jurisdiction.</p>

<p>Continued, open, visible and exclusive possession of land ‘for more than twenty years, under claim and color of title, is sufficient to give a good and sufficient legal title thereto, without regard to the regularity and validity of the colorable title or to the defects or insufficiency of the instruments confirming it.</p>

<p>Arbitrators, who are not restricted by the terms of the submission, are authorized to decide all questions of law and fact arising in the ease; and their decision upon questions of law discussed before them, deliberately and fairly made, is conclusive. Their award may be impeached by showing that they have fallen into some mistake of the law by ■which they are misled, so that their award is not the result of their judgment; but their mistakes in drawing conclusions of fact from evidence, or in adopting erroneous opinions of the law, upon debated questions, are not a legal cause for avoiding their award.</p>

Trover, for certain articles wbick were the property of the plaintiff, on the 20th of June, 1852. The defendant took the property into his possession and converted it, and is liable therefor, unless he is justified by the following state of facts: On the 21st of June, 1852, the overseers of the poor for the town of Whitefield, in the county of Coos, presented their petition to the judge of probate for that county, setting forth that Thomas IT.

<p>Whenever it is necessary, for the safety of a wife, to enter a complaint against her husband for a breach of the peace, the legal costs of the proceedings may be recovered of him by action.</p> <p>Where a wife applied to an attorney, who made out a complaint against her husband for a breach of the peace, which was signed and sworn to by her, and such proceedings were had thereon that the husband was, in default of bail, committed to the jail of the county — Held, that the husband was liable to the attorney for such charges as would be good against complainants in ordinary cases, and upon the ground that the services were necessaries furnished to the wife for her protection.</p>

<p>A scirefacias, brought to recover the forfeiture on a recognizance, ia a civil proceeding, and must be prosecuted in a court having civil jurisdiction.</p> <p>A scire facias can only issue from that court which has the record upon which it is founded.</p> <p>Where an appeal was taken from the judgment of a justice of the peace to the Oourt of Common Pleas, which had jurisdiction of the appeal, and a recognizance was entered into before the justice to prosecute the appeal in that court, and the recognizance was there forfeited, and a scire facias was afterwards brought on the recognizance in the Supreme Oourt — Held, that the record being in the Common Pleas, the action could not be maintained in the Supreme Court.</p>

This is an action of assumpsit, brought against the defendant as endorser of certain promissory notes which were given by one Maturin B. Hall to the defendant, eighteen or nineteen years ago, and made payable to the defendant or order. At the time of giving the notes Hall executed to the defendant a mortgage of certain real estate in Benton, in this county, to secure their payment.

Assumpsit, for money had and received. Plea, the general issue. The following facts appeared on trial. At the time of the presidential election in 1856 the plaintiff was a citizen and resident of the town of JRumney, entitled to vote there at that election unless disqualified by having had his taxes abated for the years 1852, 185$? 1854,1855, and 1856, which taxes were duly assessed, and had been abated at his written request.

<p>"Writ oe Entry upon a mortgage, brought under the following circumstances:</p> <p>On tbe first day of April, 1853, tbe plaintiff, William Gannett, sold and conveyed to Mary S. Blodgett, one oftbe defendants, and wife of Nathan Blodgett, tbe other defendant, tbe demanded premises, and at tbe same time said Mary S. and Nathan joined in giving back to tbe plaintiff1 a mortgage of said premises, to secure their two joint and several notes for $1000 each, payable to the plaintiff, or order, one in five and the other in ten years from date, with interest annually. In December, 1855, the plaintiff sold and endorsed the notes in blank, waiving demand and notice, to one Moses Mead, and delivered the same, with said mortgage, to Mead. The interest on said notes, from April 1, 1855, to April 1, 1856, being unpaid, Mead sued Gannett for the same as endorser of said note, and recovered judgment against him in October, 1856, for $124.12 damages, and $6.21 costs; which judgment the plaintiff paid, and then sued the defendants for the same, as money paid and laid out at their request; and at April term, 1857, (the court expressing some doubt about the right to recover against the wife) judgment was rendered in favor of the plaintiff against Nathan alone, for the sum of $134.41 damages, and $11.80 costs, which judgment is still unpaid.</p> <p>The interest on said notes, from April 1,1856, to April 1, 1857, being unpaid, in April, 1857, the plaintiff was again sued as endorser of said notes, and at' May term, 1857, judgment was rendered against him for $125.15 damages, and $6.35 costs, which judgment he paid before the commencement of this suit. The sums paid by the plaintiff before this suit was commenced, and interest up to May 1, 1858, amount to $289.71. Mead is still the owner of the notes and mortgage, by virtue of the sale thereof to him by the plaintiff, and the latter has no interest therein, except so far as he may have acquired an interest by the payments aforesaid to Mead, and has never had any authority from Mead to sue for the possession of the demanded premises, and Mead has always had the possession of the notes and mortgage since the plaintiff' assigned them to him.</p> <p>It was agreed by the parties that such judgment be rendered in the case, as, in the opinion of the court, the foregoing statement of facts demanded.</p>

<p>Money paid on an executory contract may be reclaimed, and the value of goods sold and delivered and of labor performed upon such contract, may be recovered, after the contract has been broken or rescinded by the other party thereto.</p> <p>One who sold hay and performed labor, under a contract that the same should be paid for in goods from the store of the other party, and after-wards received goods from that store to an amount greater than the value of the hay and labor, but was subsequently compelled to pay for the goods entirely in cash, may recover the value of his hay and labor of the delinquent party.</p>

The following issues were joined: 1. That the testator, at the time of making the instrument offered for probate as his last will and testament, was not of sound and disposing mind and memory. 2. That the execution of said instrument was obtained by undue influence, exerted and operating on the mind of the testator.

Debt, upon a judgment recovered in the Supreme Judicial Court for the county of Kennebec, Maine, in 1856, upon a policy of insurance on the plaintiff’s saw-mill, insured in the Fourth, or Manufacturers’ Class, of the defendant company.

<p>A prosecution was not pending, within the meaning of the act of June 27, 1859, where no indictment had been found, but only preliminary proceedings had been instituted before a magistrate.</p> <p>Under a former statute, one indicted for robbery was entitled to counsel, process to compel the attendance of witnesses, and other privileges, as incidents to the punishment by law prescribed for the oífence ; and the former punishment having been abolished, its incidents fell with it.</p>

<p>It is not essential that the complainant’s title to the subject matter of a bill in equity should be directly and explicitly averred ; it is sufficient, if it may be fairly inferred from the facts stated.</p> <p>Where the injury is irreparable, not susceptible of being adequately compensated in damages, or such as from its continuance or permanent mischief must occasion a constantly recurring grievance which cannot be otherwise prevented, as where loss of health, loss of trade or business, destruction of the means of subsistence, or permanent ruin to property, may or will ensue from the wrongful acts ; or where an easement or servitude is annexed by grant, covenant or otherwise, to a private estate, a court of equity will interfere by injunction in furtherance of justice and the violated rights of the party, or to protect the due and quiet enjoyment of the easement against encroachments.</p>

Scire Facias against the defendant, as endorser of an original writ in favor of one Wesley Ladd against the plaintiff to recover of him the costs which the plaintiff’ recovered against said Ladd in the former suit. The defendant filed a general demurrer, in which tifié plaintiff1 joined.

Trespass, quare clausum, and cutting and carrying away timber, and picking and carrying away cranberries.

Indictment, charging the respondent with an illegal sale of intoxicating liquor. Thomas B. G-ault testified, that about the middle or last of June, 1859, he purchased three glasses of intoxicating liquor at the bar of the public house kept by the respondent, in Hooksett, in this county, of a man unknown to him, and whom he had never seen before or since, but whom he described.

<p>Im an action upon a promissory note, given by the principal to his surety to indemnify him for that liability, the measure of damages is the amount paid by the surety at any time before trial; and unless he has made such payment he can recover nominal damages alone.</p>

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

Assumpsit. The case was submitted upon the following agreed statement of facts : Among the items claimed are payments made by the county for the support of Benjamin G-reen, at the Asylum for the Insane. Said Green was originally committed to the asylum by order of the Court of Common Pleas, under the provisions of section 24, of chapter 240, Bevised Statutes, on an acquittal by the petit jury on account of insanity.

Writ oe Entry, to foreclose a mortgage given to secure the payment of a note or contract, dated December 81, 1844, given by the defendant, and payable to the plaintiff by the first day of December, 1850, in sawing clapboards; the payee to fui’nish suitable timber, delivered in the mortgagor’s mill-yard, in season for the same to be sawed before the note became due.

In Equity. The bill sets forth that the plaintiffs, a corporation in Massachusetts, doing business in Boston, at the Court of Common Pleas, in Hillsborough, February term, 1857, recovered judgment against I. Goodall, of Bath, in Grafton county, for $13,230.01 debt, and $30.68 costs. .A writ of execution issued on said judgment, May 8,1857, and was delivered, September 22, 1857, to the sheriff of Grafton, for service, who made diligent search and found no goods or estate of…

Trover, for a pair of steers. The plaintiff admitted that some time prior to 1856 he gave a mortgage of the steers in controversy to the defendant, to secure a note which he held against the… Held: or claimed to hold, them under or by virtue of a mortgage ; that no part of the avails or value of said steers was ever applied on his mortgage note, but the whole of it was paid by the plaintiff.

Writ or Entry, on a mortgage dated May 25, 1844, signed by Ezi'a D. Clark, one of tbe defendants, and one H. G-. Eelton, to the plaintiff', to secure their note of the. same date. This mortgage was not signed by .Harriet Clark, the other defendant. Elisha Eelton died forty years ago, leaving his farm to H. G. Eelton, a son, and Harriet Eelton, now Harriet Clark, a daughter, the defendant.

<p>The exclusion of cumulative evidence, upon a point already conclusively proved, furnishes no cause for setting aside a verdict.</p> <p>A town is not liable for the support of the minor child of a father having his settlement therein, to another town that may support such child, unless such child be actually a pauper; and the child is not a pauper so long as the father has sufficient ability to maintain it.</p> <p>A father is bound to support his legitimate minor fchildren, so long as he has credit or property wherewith to do so without disposing of what must be immediately replaced in order to enable himself and family to live together.</p> <p>The verdict of a jury is sufficient, although it be informal and do not find in terms the issue submitted to them, if it find the very matter on which the issue depends, and from which it is necessarily concluded.</p>

Petition for a new highway in Goffstown. It was duly presented to the court and referred to the commissioners at the April tenn, 1859, of the Court of Common Pleas; due notice was given for a hearing of all persons and parties interested, who might wish to be heard before the commissioners, and their report, laying out the highway, was duly filed at the September term, 1859, of the Supreme Judicial Court, when the town excepted to its acceptance, “because the county…

Assumpsit, with three counts in the declaration, as follows : “In a plea of the case, for that the defendant, at said Amherst, on the 21st day of August, 1853, in consideration that the plaintiff, at his request, would sell and deliver to one Jacob Davis, on credit, all such goods as the said Jacob Davis should wish to purchase of him while the said Jacob Davis was at work for the said defendant, promised the plaintiff to be accountable to him for the price of said goods.;…

<p>A right of entry into land will pass by deed, although at the date of the eonveyanee the land may be holden adversely to the right of the grantor.</p> <p>Affidavits of the party making an entry into land for the purpose of foreclosing a mortgage thereon, and of the witnesses thereto, and a copy of the published notice of such entry verified by affidavits duly recorded, are competent evidence of the entry and publication, without producing the original notice or the papers in which it was published.</p> <p>The taxation of land to an individual for a long series of years and payment of those taxes by him, are competent evidence, tending to show ownership or at least a claim of ownership thereto, in him.</p> <p>Taxation can only be proved by the records of the taxes, unless their loss be first shown.</p> <p>Proof of the existence and transfer of mortgages and mortgage debts may properly be received to explain occupancy of the mortgaged premises by the mortgagees or their tenants.</p> <p>An examined copy of an instrument which it is the duty of a public officer to record and give copies of, may be received in evidence, in any proper case, without proof of the original.</p> <p>Where, in a deed of land, reference is made to another deed as recorded in a particular book and page of the registry, for a description, a copy of the record of that deed is admissible in evidence, in connection with the deed in which the reference is made.</p> <p>After proof of the original deed to himself, or of his title by descent or devise, a party may put in evidence an office-copy of a deed to which he is not a party, but which constitutes part of his chain of title, without showing the loss of the original.</p> <p>Continued, open, and exclusive possession of land for more than twenty years, under claim and color of title, gives a perfect title thereto.</p> <p>Entry upon and continued occupation of a portion of a lot, under a deed describing the whole thereof by metes and bounds, gives possession of all the lands embraced in the title under which the entry is made and the occupation continued.</p> <p>It is not necessary that adverse possession, in order to he available within the statute of limitations, should commence or be continued under valid and effectual deeds. Where such possession is relied upon, the idea of a rightful title is excluded; the fact of possession, and quo animo it was commenced and continued, are the only tests.</p>

Indictment, charging the respondent and Lafayette Goodnow jointly with an aggravated assault upon William Kimball, whereby the life of the latter was endangored. When arraigned both respondents severally pleaded not guilty. Upon the coming on of the trial Goodnow retracted his plea, and entered nolo contendere. On the trial of the respondent, he offered Goodnow as a witness in his behalf, and, the Attorney-General objecting, the court declined to permit him to testify.

Case, for damage happening by reason of a defect in a highway.

Writ oe Entry. The case was submitted upon tbe following agreed statement of facts : The plaintiff claims under a mortgage from Jordan and Martin. The defendant claims under the levy of an execution against one Steele, to whom Jordan and Martin conveyed all their interest after their mortgage to the plaintiff'. The defendant having a claim against Steele, sued him, attached the demanded premises, and obtained an execution, which was duly levied.

<p>The record by a town-clerk of the election of selectmen in this form, “Chose A. B., C. D. and E. E. selectmen,” is not sufficient. The record should show that they were elected by ballot, and by major vote.</p> <p>Although it is enough, in cases where the authority of the selectmen comes incidentally in question, and in which they are not the parties to the action, to show that they were acting officers, without producing the record of their election, yet, to show them acting selectmen, it is not enough merely to show that they acted in that capacity in the particular instance in which their authority is questioned.</p> <p>When the selectmen, in laying out a highway, refer, for a particular description of the same, to a plan recorded in the registry of deeds, in the same county — Held, that such íeference was properly made, and that the description might be aided by such reference.</p> <p>And in proving the limits of such highway the record thus referred to, or a copy of it, should be produced as a part of the description of such highway.</p> <p>In case against a town for damages resulting from a defect in a highway, the defendants, under the general issue, can object to the legality of the laying out of such highway, nor are the defendants estopped from denying its legal existence, by having recognized and used such highway for any term of time less than twenty years.</p>

<p>The constitutional provision against the passage of retrospective laws examined and discussed.</p> <p>The term retrospective, like the term ex post facto, is a technical term ; and while the latter applies only to criminal cases, and to those only in a particular way, so the former technically applies only to civil cases, and to those only in a particular way.</p> <p>The construction which has uniformly been given by the courts of this State to the 23d section of our Bill of Rights, has made the first clause of the prohibition in that article to be synonymous in legal signification with a prohibition against the passage of “ retrospective’ laws; and the latter clause of the prohibition in that article to be synonymous with a prohibition against the passage of “ ex post facto” laws.</p> <p>Any statute which changes or affects the remedy merely, and does not destroy or impair vested rights, is not unconstitutional, though it be retrospective, and although in changing or affecting the remedy the rights of parties may be incidentally affected.</p> <p>A statute changing the rules of evidence or of practice is ordinarily to be classed with those affecting the remedy; and though made to operate rapen suits pending at the time of its passage, is not unconstitutional, unless' it impairs contracts or destroys vested rights.</p> <p>But a statute which in form affects the remedy, or the rules of evidence or of practice only, yet practically and in fact divests vested rights, is unconstitutional and void.</p> <p>The statute of -1857, which removes the disqualification of interest in witnesses, and thereby enables parties to actions to testify, although it applies to cases in which the cause of action accrued and the rights became vested prior to its passage, is not unconstitutional; and the statute of 1858, in amendment of the act of 1857, and designed and ‘ intended to make the new rule of evidence apply to all cases, as well where the action was pending at the time of its passage as otherwise, when thus applied, is not unconstitutional; both these statutes affecting the remedy merely, and not impairing the obligation' of contracts or destroying any vested right.</p> <p>Courts will not declare a statute void, as being contrary1 to the provisions of the constitution, unless the nullity and invalidity of the act are placed, in their judgment, beyond all reasonable doubt.</p> <p>Ro person can acquire a vested right in the testimony of any particular witness, or to have the testimony of such witness excluded upon trial.</p> <p>Since the disqualification of interest has been removed so that parties to suits can testify, one partner may be a witness to prove the existence of the partnership, whether he be a party to the suit or not.</p> <p>After proof of the existence of the partnership, an admission by one partner is competent evidence against the firm.</p> <p>The declaration and admission of one partner, made after the dissolution of the partnership, concerning .facts which transpired during its existence, are admissible in evidence as" against the firm.</p> <p>The plaintiff’s specification and the defendant’s offset, when properly filed in an action, become parts of the record, and may be used and referred to on the trial, and may go to the jury in the same manner as the writ and pleadings.</p> <p>If a party to a suit, whether upon the stand as a witness or otherwise,'is shown a paper containing written statements material to the issue and adverse to his interests, and he, after examination, admits that the statements therein contained áre true, the paper containing the statements may go to the jury, in connection with .his testimony or statements, as the admission of the party, and it makes no difference when, where, or by whom the statement was thus written.</p>

Exceptions to the ruling of the court of Common Pleas for this county, February term, 1859, denying an application for leave to Samuel Tilton, who was then sheriff, to amend the return of the levy of an execution made by his deputy, Dudley Smith, since deceased, March 23, 1843, or-for the administrator of said Smith to amend the same, on the ground that neither the sheriff or administrator had by law the power to amend said return.

<p>Upon error to correct the taxation of costs, the court will reexamine the matter and re-tax the costs, by a commissioner or otherwise, precisely as the court helow ought to have taxed them originally; and neither oral nor written evidence will be received to contradict and control the proofs contained in the transcript of the record brought up from the court helow.</p> <p>In taxing bills of costs courts take judicial notice of the distances and relative situations of the residences of parties and Witnesses, the length of terms, the appearance or non-appearance of defendants, the course of proceedings and the state of business before themselves, and inquire into every matter connected with their own records and orders, informing themselves upon these subjects in any mode within their reach, and from any source upon which they are willing to rely.</p> <p>An order of court, seasonably made, that no action except a designated one will be tried after a particular day of the term, and that parties will not be allowed to tax for the attendance of witnesses in other actions after that day, precludes the taxation of costs for the subsequent attendance of witnesses, in all but the specified action.</p> <p>Parties will not, ordinarily, be allowed to tax fees for the travel and attendance of witnesses at a trial term, in a subsequent suit for a breach of the covenants of a lease to pay rent, while a prior suit between them, for a prior breach of the same covenants, involving precisely the same questions, is pending at the law term, the decision of which must be conclusive upon the subsequent suit, or after such decision has been made.</p>

<p>The town of Gilmanton was divided by an act of the legislature passed June 28, 1859, and two new towns were constituted out of its territory, the act taking effect upon its passage and containing no provision for regulating or administering the affairs of the old town or the new towns, until the latter should organize and elect their officers: — whether in such case the old officers did not hold over, and were not authorized to act until new ones were elected and qualified in the new towns, quaere ?</p> <p>During the period between the passage of the act of division and the organization of the new towns, the old officers acted, jurors were drawn, who attended court, and the acting town-clerk seasonably made return of his doings upon the venire, to the court. — Held, that an objection for that cause, to a juror thus drawn, if not made until after verdict, must be considered as having been waived because not seasonably made.</p>

<p>A party admitted to defend a suit against another, as a subsequent attaching creditor, and the like, has, under the law of June, 1855, remodeling the judiciary, a right to appeal, upon giving the usual bond.</p>

In Equity. H. M. Hill and five others complained against E. S. McIntire and A. R. Hatch, that their grandfather, S. Hill, died seized of a large real estate, and by Ms will, dated February 4, 1839, he left a large part of his estate to the complainants. On the 12th day of January, 1847, Jefferson McIntire was appointed guardian of the complainants, then minors, and gave bond, with W. Hanscom and R. McIntire sureties. There was set off to the complainants and one 0.

Motion to quash the writ, on the ground of a prior action pending for the same cause. It appeared that the plaintiff, on the 6th day of April, 1857, sued out a writ against the defendant as principal, and one George Odell as trustee, returnable at the October term, 1857, and that the action is still pending.

<p>If a demand, whether contingent or not, against the estate of a person deceased, is not presented to the executor within two years after the grant of administration, it will be barred.</p> <p>It is not enough that the demand was presented within two years after the right of action accrued.</p> <p>If the executors, by their absence from the State, have prevented tbe presentment of the claim, it will not be barred; but a temporary absence, which did not prevent the holder from presenting his claim by the exercise of reasonable diligence, will not extend the time limited by the statute.</p> <p>Ho action can be maintained against an executor which is not commenced within three years after the grant of administration, unless, in the case of contingent claims, the executor shall have been required, by a decree of the court of probate, to reserve in his hands the necessary funds to meet the claim, when the contingency shall happen.</p> <p>The ordinary limitation applies to actions against executors who are residuary legatees, and have given bonds for the payment of debts and legacies, as in other cases.</p>

Assumpsit. The writ was dated October 20, 1856, and contained five counts, tbe first upon an account annexed, the other four general, for goods sold, labor and services performed, money had and received, money paid, &c. Plea — the general issue, with notice of a set-off and of a special agreement, under which it was alleged that the labor was performed.

Assumpsit. The writ was dated July 81, 1857, and was brought to recover compensation for divers goods, wares and merchandize, alleged to have been sold and delivered by the plaintiff to the defendants, at their request, before January 1, 1853.

Writ or Entry, in which the plaintiff counted upon a mortgage, alleged to have been given to her by Thomas Hanscom, on the 31st day of May, 1834, of a certain piece of land in Portsmouth, being part of a ship-yard. The writ was dated May 27, 1857, and served on the 31st day of August following. Plea — the general issue, with a brief statement of the statute of limitations, and of a claim for betterments.

Assumpsit. The writ was dated April 6,1857, and contained a count upon an account annexed, and a general count for goods sold.

Trespass, for taking and driving away the plaintiff’s horse, against his consent, whereby he lost the same. Plea, the general issue, with a brief statement, that the horse was wrongfully in the close of the defendant Osgood, and that the defendant Eeed, as her servant, turned him into the highway, as he lawfully might.

<p>A trustee who discloses that, at the time of the service of the trustee process upon him, the defendant owed him a debt secured by the pledge of a note given for a sum larger than his debt, and that he has since sold the note for the amount of his debt, will be charged for the difference between his debt and the amount of the note, unless he shows that the sale was made in good faith and for a fair price.</p>

Foreign Attachment. The following facts appeared from the disclosures of the trustees: July 25, 1853, the trustee, Edward Philbrick, the father of the principal defendant, being aged, and indebted to the amount of about $500, and having little property beside a lot of land in Concord, applied to the defendant (who then was, and ever since has been, a resident and citizen of the State of Illinois,) for assistance.

Replevin for a yoke of oxen. The defendant avowed the taking of the oxen in the close in which, &c., alleging that the said close was then his soil and freehold ; that the oxen were doing damage therein, and he took them as a distress for the damage.

An auditor was appointed to state the facts, from whose report it appeared that the appellant is the widow of Jacob Horn, who purchased, in 1805, the farm in which she now claims a homestead, and they occupied till his death, in 1857. February 16, 1858, he gave their daughter, Adaline H. Tufts, wife of JDavis Tufts, a deed of half this farm in eommon, but the appellant did not sign the deed.

Trespass quare clausum. The defendants demurred generally to the plaintiff’s declaration, and the plaintiff joined in the demurrer.

<p>Where a corporation adopts a by-law providing that if any subscriber for stock shall not pay the assessments upon such stock within thirty days after notice of the same, said stock shall be sold at auction, to pay the expenses of the sale and the assessments, and a person subscribes for shares in said corporation, and by the terms of his subscription promises to pay assessments thereon, he will be liable in assumpsit for assessments made upon his stock, before resort is had to a sale of the shares under the by-law.</p> <p>Any parol representations or agreements made at the time of subscribing for stock in a corporation, and. .inconsistent with the written terms of subscription, are inadmissible, inoperative and void.</p> <p>Where an article in the by-laws of a corporation provides that “ ten per cent, shall be payable upon subscription, or the subscription shall be void,” and a person subscribed for one share of the stock, without paying anything at the time of subscription or afterwards until an assessment was voted upon his share, such subscription is not void, but at most only voidable at the election of the corporation; — and whether voidable by the corporation until after demand made upon the subscriber, and refusal on his part to pay the ten per cent., quaere?</p>

<p>An act of the legislature, making parties to pending suits competent witnesses on the trial thereof, is not unconstitutional.</p> <p>Conviction for adultery does not render a person incompetent to testify as a witness.</p> <p>Possession of a deed by the grantee, soon after its date, is competent evidence upon the question of its having ever been delivered.</p> <p>The declarations of an ancestor, while possessed of all the rights claimed through him, are competent to be received against the claim made by a party as his heir.</p> <p>The declarations of the grantor of a deed, alleged to have been procured by fraud and never delivered, may be received to rebut evidence tending to sustain those allegations.</p>

<p>Petition for a Mandamus, filed by the school commissioner for the county of Strafford for the year commencing June 23, 1859, to compel the selectmen of Somersworth, in that county, to pay over to the commissioner the sum of sixty-five dollars and eight cents, being a sum equal to two per cent of the amount required by law to be raised for the support of common schools in said town of Somersworth.</p> <p>The petition alleges that the town was required by law to appropriate the above amount for the support of teachers’ institutes in said county, and that the selectmen were also required seasonably to assess and pay over the same to the school commissioner; that on the 10th day of September, 1859, the petitioner notified in writing the selectmen of the amount so due, and requested them to pay the same, for the purpose aforesaid, and that the selectmen had neglected and refused to do so, but on the 5th of November, 1859, at a meeting of their board, duly holden, voted, that there “ will not be any money paid by the town of Somerswurth for the support of teachers’ institutes for the year 1859.” The petition is dated November 25, 1859; and, upon the order of notice to the selectmen being duly served, they appeared at the December term in this county, and a hearing was had on the petition.</p>

<p>The admissions of a special agent are -not competent evidence against the principal, unless upon some point within the scope of his authority, and made while the matter was depending.</p>

Trespass, brought in the Court of Common Pleas, for breaking and entering the plaintiff’s close, and carrying away a quantity of hay. The case was submitted upon the following agreed statement of facts: The hay in controversy grew upon land which was set off, June 7, 1856, on an execution against one John B. Boss, to a creditor, who conveyed his interest in the land to the defendant, Warren Boss, July 20, 1857.

This was a petition of Francis Russell, in the following form: And now Francis Russell, of, &c., comes and respectfully represents that at the last November term of this ■court, Isaac Dyer, of, &c., entered his petition in this court, praying that the return of the officer, B. H. Chadbourne, upon certain executions on file in the clerk’s office of this court, might be amended; and such proceedings were thereupon had at said term, that the said Chadbourne was allowed by this…

Debt on an arbitration bond for non-performance of an award. The plaintiff brought three several actions on the case for slander, against the defendant, against J. P. Adams, and against C. Newell, which were pending in court. These slanders were alleged to have been committed at different times and places, and were separate and distinct from each other.

Assumpsit, on a promissory note, dated January 19r 1850, for $590, and interest, signed by the defendant, payable to Joseph T. Martin, or order, on demand, and by him indorsed to the plaintiff.

In Equity. The complainant sets forth that one Mary Hodgdon, of Weare, N. H, on the 13th day of October, A. D. 1851, made her will and bequeathed to the oratrix, then Susan Maria Hanson: (1.) Fifty dollars, to be paid by the executor of said will in six months after the decease of the testatrix, or upon the legatee’s arriving at the age of twenty-one years; (2.) The sum of seven hundred dollars, to be paid to the said Susan Maria Hanson in such sums and at such times as the…

Trover, for five tons of hay. Writ dated February 4, 1858. It appeared that one Daniel Merriam, who was a son-in-law of the plaintiff, on the 11th day of March, 1857, executed a mortgage to the plaintiff of his stock of some twenty cattle, and horses, harnesses, carriage, sugaring materials, and a quantity of hay, then being in the barns on the premises of Merriam, in Walpole, about ten miles from Keene village, and that said mortgage was duly recorded on the same day.

<p>Railroads are hound to construct and maintain sufficient cattle-guards at all farm crossings of their track, and are responsible for all damages resulting from their neglect of duty in this respect to cattle rightfully upon the crossing.</p> <p>^Railroads are not obliged to maintain either fences or cattle-guards against cattle wrongfully upon the public highway; and are not responsible for injuries to cattle wrongfully on the highway, and from thence escaping upon their tracks.</p> <p>Stone excavated in constructing a branch railroad through a man’s land, under a permissive license from him to construct and use the track thereon, and hold the same so long as it is shall be used for railroad purposes, remains the property of the land-owner, and, if not used in the construction of the branch track, cannot be removed and devoted to other purposes without his permission.</p> <p>It seems, that where land is taken for a railroad by the appraisal of the commissioners and selectmen, the corporation are entitled to employ the ■whole or any portion of the earth, stone and gravel excavated on one portion of the line, in the proper construction of any other portion thereof.</p>

62$-, as the share of the personal estate of said Jedediah Cooper, remaining in the hands of the appellee as his administrator, on the settlement of his administration account, belonging to said Winsor Cooper. .The appellee claimed the share of said Winsor Cooper in Ms father’s estate, under a deed of assignment from him, duly executed, but which the appellant, Wood, claimed to be void, as having been obtained by misrepresentation, imposition and fraud, while said Winsor was…

This is an action on the case, by Caroline C. Knight against Levi H. Foster, for slander, alleging the speaking of words importing a charge of fornication. The case was tried npon the general issue, and proof was offered of the speaking of such words, implying an unlawful intercourse with one Almond F. Cooper.

<p>The liability of an accommodation indorser is not affected by the makers transferring the note directly to their creditor in payment of their debt, instead of obtaining the money to be used in their business by a discount at a bank, as was the original purpose.</p> <p>A composition deed, by which the plaintiffs, to whom the note in question was transferred, agreed to receive a certain per cent of all debts due from the makers of the note, in full discharge of the same, to be paid at a time beyond the maturity of the note, operates as an extension of the time of payment, and discharges the indorser.</p> <p>Proof of a parol agreement, made at the execution of such composition deed, that it should not embrace the note, is inadmissible, upon the ground that it contradicts the written instrument, and, also, that such an agreement would be a fraud upon the other creditors, and void.</p>

<p>In assumpsit, brought to recover back part of the price paid for land conveyed by a deed which contained no warranty of the quantity of the land, parol evidence that the vendor, during the negotiation, and before the delivery of the deed, verbally warranted the quantity of the land, is inadmissible as tending to vary the terms of the deed.</p>