Volume 4 — New Hampshire Reports

Covenant broken. The plaintiff alleged in his declaration that the defendant, by deed, dated December 10, 1813, conveyed to him a tract of land in Boseawen, and by the same deed covenanted with the plaintiff that the same land was free from all incumbrances. The breach 0f the covenant assigned was a public highway laid out across the land, previously to said conveyance. The plea of the defendant traversed the existence of a highway, upon which issue was joined.

This was an action of trespass for an assault and imprisonment, and a detention of the plaintiff in prison from the first to the third day of November, 1819, and until he paid the sum of $2,70 for his enlargement. . The cause was submitted to the decision of the court upon the following facts agreed by the parties.

This was a writ of entry in which the demandant counted upon his own seizin of part of lot No. 2G, in .Boscawen and upon a disseizin by the tenant. The tenant as to two undivided third parts of the demanded premises disclaimed all title, and as to the other undivided third he pleaded the general issue, which was joined by the demandant.

This was a scire. Jemas against bail, in which it was alleged that the plaintiff, at the September term of this court herein 1824, recovered judgment against James Smith for $33 damage, and $8 44 costs of suit: and on the 7th January, 1825, sued out execution and delivered the same to a deputy ¡sheriff, who, on the 13th January, 1825, gave notice to the defendant, who was bail in the action, in writing, that he had the execution in his hands, the amount of the same, and when…

This was an action of trespass for breaking and entering the plaintiiPs close in Gilmanton, and with a certain horse eating up and destroying the plaintiff’s grass.

Assumpsit upon a contract in the following words : “ May 28, 1816.

This was an action of assumpsit for the support of a pauper alleged to have a settlement in the town of Wakefield and was submitted to the decision of the court upon the following facts. The town of Burton expended in the support of the pauper who stood in need of relief the sum of $94 50, and due notice of the sum thus expended was given to Wake-field within ninety days from the time when the pauper was first relieved, and the notice duly returned.

This was a writ of error brought to reverse a judgment of a justice of the peace rendered upon a report of referees under a rule made before the said justice. The rule was as follows : State of New Hampshire. Town of Poplin, in the county of Rockingham, January 6, 1826.

This was a petition, in which Odióme alleged that he was seized of one sixth part of a tract of land in. Newcastle, in common and undivided with Seavey, and prayed that partition might be made. At September term, 1825, a committee of five persons was appointed to make partition.

This was an action of assumpsit upon a contract in writing made on the 7th January, 1820, between Joseph Ela the plaintiff’s intestate, and Charles K. White, and was brought against the defendant as surviving partner of White. The defendant pleaded in abatement of the writ that the promises set forth in the declaration were made joint-iy by one Daniel Rand and one Robert Rand with the, said White and the defendant, and not by the said White and the defendant alone.

This was an appeal from a decree of the judge of probate in this county, declaring the appellant to be a person non compos mentis, and appointing a guardian of his person and estate. Held: they can be held at no other time or place consistently with the constitution ; the clause in the statute authorizing the judge to appoint other times and places is therefore void.

Assumpsit upon a promisory note for ⅜180 nítido April 6, 1821, and payable to the plaintiff, but-not to-Ms order, in.four months and grace.

This was a writ, of entry. The tenant pleaded in abatement of the writ the following plea. “And the said Judith Bagley comes and defends when, where, &e. and prays judgment of the said writ because she says she is not tenant of the demanded premises as of freehold nor was on the day of the purchase of the. said writ nor at any time afterwards nor ever had. nor claimed to have, nor docs she now claim, to have anything in‘the-'demanded premises but wholly disclaims to have any…

Debt on a Rand made the 16th July 1824, and conditioned that Ralph Thompson, a prisoner in the gaol at Haver-hill, in the county of Grafton, at the suit of the plaintiff should continue a true prisoner until lawfully discharged. The defendant pleaded performance of the condition of the bond. The plaintiff replied an escape on the 11th August, 1824.

This was a writ of error brought to reverse a judgment of the court of common pleas in this county.

Assumpsit on a promissory note dated September 27, 1816, for ,$772,73 payable to Frederick French the plaintiff’s intestate in two years with interest annually. The cause was tried here at October term, 1826, and a verdict taken for the plaintiff by consent subject to the opinion of the court upon the following case.

This was a writ of entry, in which the demandant counted upon his own seizin of a tract of land in Lynde-borough and upon a disseizin… Held: &c. on the second Wednesday of June 1797, it was voted that he should have as part of his said shares in that part of the common aforesaid in No. 9, &c. and also voted that the clerk should give and execute a good and effectual deed of said lfnd.” “ Therefore I, S. Goodridge, clerk of the proprietors aforesaid, do in my said capacity…

<p>Xj& trespass de bonis asportatis the defendant pleaded, first, not guilty, upon which issue was joined ; and secondly, in bar, that he took the goods as the property of a third person by virtue of a writ of attachment and issue was joined on the plaintiff’s property in the goods. The jury found, that the goods were the property of the plaintiff at the time of the taking and assessed the damage, whereupon judgment was rendered for the plaintiff A writ of error being brought, the verdict was held to be imperfect and the judgment reversed for that cause.</p>

This was a writ of dower brought to recover the dower of the said Mary in a lot of land in Keene, of which Ezekiel Moore her late husband was seized during the coverture.

Case for slander. The plaintiff in her first count stated that the defendant spoke of her the following words : “ They say that she has had a young one. They say that Mrs. John Mason catched she and Jesse behind the barn,” whereby one L. C. who was courting her, refused to marry her.

This was a writ of entry in which the demandant originally counted upon his own seizin in fee, but afterwards having obtained leave to amend, counted upon his own seizin ns of freehold. Judgment was rendered in favor of the demandant at May term, 1817. 1 N. II. Rep. G4. But judgment was by mistake entered upon the original instead of the amended count.

This was a writ of entry brought to recover a tract of land in Claremont, and was tried here at October term, 1326, upon the general issue and a verdict returned for the tenants. In the course of the term the demandants moved the court to grant a new trial on the ground that some of the jurors who tried the cause had misunderstood the directions given to the jury by the= court, and they offered the affidavits of five jurors to prove the fact,

Tins was an action upon the case against the defendants, who were selectmen of the town of Swanzey in the year 1824, for taxing the plaintiff that year for $ 15000 money at interest and bank stock, when he in fact had and gave in to them only $2000. The cause was tried here upon the general issue at May term, 1826, when it appeared that the defendants in April, 1824, met the plaintiff at the shop of E. Page, in Swanzey, and requested him to give in his invoice.

Assumpsit. It was alleged in the first count that Nelson in consideration that the plaintiff would assign to him a mortgage of a farm in Hanover, made by one Robert Turner on the 28th April, 1817, to secure the payment of ‡2000 to the plaintiff on demand, promised the plaintiff on the 17th February, 1819, to collect the amount due on the mortgage and apply it to the payment of certain debts due from Porter to Nelson.

Assumpsit for the support of certain paupers alleged to have a. settlement in the town of Ellsworth. The cause was tried here at November term, 1825, upon the general issue and a verdict returned for the plaintiff. with Ellsworth, moved for a new trial and rested their motion on the following facts.

This was a writ of entry in which the demandant counted upon his own seizin of land in lloseawen, and upon a disseizin by the tenant.

Tins was a writ of review tested the 12th April, 1826,* in which the defendants in review were described as follows : “Isaac Parker of Boston in the county of Suffolk and commonwealth of Massachusetts, and Jonas M. Melville of Jaffrey in our county of Cheshire, merchants and late partners in trade under the name and firm of Isaac Parker and company.” .The sheriffs return of the service of the wrii was as follows : “ Merrimack, ss. July 7, 1826.

. This was an action on the case for a malicious prosecution ; and was tried here at September term, 1822, and a verdict returned in favor of Fernald, the original plaintiff, upon which he had judgment. Ladd brought this writ of review and then died. Dudley Ladd, the administrator of Jonathan, moved to be admitted to prosecute the writ of review. admitted that the original cause of action did not by law survive.

Assumpsit, The cause had been twice tried aad a judgment rendered in favor of the plaintiff upon a review. And afterwards, a new trial was granted upon the petition of the defendant, and the cause again brought before the court at the last February term.

This was a writ of error brought to reverse a judgment of ihe court of common pleas in this county. It appeared by the record of the proceedings in the court below that Waldron brought an action of assumpsit iismiust Tuttle founded on an account annexed to the writ for $3, being the fees of Waldron for the service of a warrant in the name of the state against one James Had-ley, and that the cause was tried upon the general issue.

This was an action of trespass against the defendant for taking and converting to his own use ten swine of the plaintiff.

Assumpsit for supplies furnished to John McMurphv, the defendant’s father, a pauper standing in need of relief . Ihc cause was tried here at .September term, 1326, upon the general issue when the only question that was raised was whether the defendant was of sufficient ability to support the pauper.

Assumpsit upon a note dated January 3, 1826 for $50, payable to John Merrill or order in three months, and by him endorsed. The damages demanded exceeded the sum of fifty dollars. The action was commenced in the court of common pleas. At January term of that court, 1827, the defendant demurred to the declaration, reserving to himself liberty to waive the demurrer and plead anew in this court; and the plaintiff agreeing to the said reservation joined in demurrer.

This was a writ of entry, in which the demandant counted upon his own seizin of a tract of land in London-derry and upon a disseizin by the tenant. The cause was tried here upon the general issue, at September term, 1836, when it was admitted that the demandant was the son and sole heir of John M. Adams deceased, who at the time of his death was lawfully seized of the demanded premises in fee simple.

Gale, as clerk of a militia company, filed an information before a justice of the peace against Currier, as a private belonging to the same company, for neglect of military duty on the fourth day of May, 1824- The cause, having been brought to this court by appeal, was tried at September term, 1826.

This was a writ of entry in which the demandant counted upon the seizin of his testator in fee and in mortgage of a tract of land in Hampstead. The cause was tried here upon the general issue at February term, 1827, when the court directed a nonsuit subject to the opinion of the court upon the following case. John Murray being seized of the demanded premises by deed dated the 28th April, 1821, conveyed the same to the testator, True, in fee.

This was an action of trespass for breaking and entering the plaintiff’s house and taking and carrying away divers goods of the plaintiff.

Tins ivas an action on the case commenced at the court of common pleas, where a verdict was taken by consent of the parties for the defendant, and judgment rendered in his favor for $15,55 costs.

This was an action of trespass de bonis asportatis. The defendant pleaded in bar, that he, being a deputy sheriff, took the goods as the property of Jonathan Palmer, by virtue of a writ of attachment in favor of Howard & Gordon, against Palmer, and traversed the property of the plaintiff in the goods, and issue was joined on the traverse.

This was an action of trespass on the case, for pulling down and carrying away a pew in the meeting house in Walpole, belonging to the plaintiff, whereby the plaintiff was deprived of the use of the same from the 3d March, 1826, to the 28 th August in the same year.

<p>Where the tenant in a writ of entry has disclaimed all title to the demanded premises, both he and his subsequent assignees will be ever afterwards estopped to set up against the demandant and his subsequent assignees any claim to the land, which the tenant may have had at the time of the disclaimer.</p> <p>And an agreeement, made subsequently to the disclaimer by the demand-ant, to purchase all the right of the tenant in the land, will not set the estoppel at large.</p>

<p>Covenant broken. The plaintiff alleged, that the defendant by deed dated 18th November, 1822, conveyed to him, the plaintiff, a tract of land, and covenanted that he, lite defendant, at the time of making the deed, was seized in fee, when in fact he was not so seized, but by his deed dated May 31, 1.811, had conveyed an undivided half of the land to John Pierce. The defendant alleged in his plea that at the time of making said deed on wllicit the plaintiff declares he was siezed, upon which issue was joined.</p> <p>The cause was tried here at May term, 1827, when it appeared in evidence, that the defendant, on the 31st May, 1811, being seized of the land, conveyed the undivided half of the same to John Pierce, who on the same day reconveyed it to the defendant in fee and mortgage to secure the payment of two notes amounting to $540. The defendant continued in possession of the land a great part of the time until he conveyed the land to the plaintiff, but it did not distinctly appear that he was in possession actually at that time.</p> <p>The plaintiff then showed that John Pierce died in 1821, and that the notes mentioned in the mortgage and the mortgage itself were found among Pierce’s papers, the nolos being cancelled, and that, the mortgage had been obtained from Pierce’s widow and put on record in 1826.</p> <p>Pierce’s widow testified that in. 1815 her husband told her that he had given back the land to the defendant and had lost nearly all he had paid, and that he had taken up the notes he gave for the land.</p> <p>David Carpenter testified that he was present when Isaac Farrar sold the said undivided half of the land to Pierce, and that afterwards in the year 1814, the said Isaac leased the other half to Pierce for one year ; that after the lease expired said Pierce told said Isaac that he, Pierce, could not pay the purchase money, and wished to have the bargain given up, and they verbally agreed that the said bargain should be given up. Afterwards the witness saw said Pierce in Boston, and Pierce then said the writings had been exchanged, but there was a mistake in the exchange and that the deed of said Isaac to said Pierce by mistake was not given up. Immediately after the agreement aforesaid the said Isaac took possession of the whole farm and continued in possession until the year 1821 or 1822.</p> <p>There being no dispute with respect to the facts stated by the witnesses the court directed a verdict to be taken for the defendant, subject to the opinion of the court upon the foregoing case.</p> <p>The action cannot be sustained,</p> <p>1st, Because the defendant was seized in fact, at the time of the conveyance to the plaintiff. The testimony did not show, positively, that defendant was in possession up to the precise time when the deed was executed, but the witness stated him to have been in possession about that time, and that when he moved away plaintiff immediately took possession, and has ever since retained it. It was therefore to be inferred. But it is immaterial which held it when the deed passed, as plaintiff cannot allege his own seizin as a breach of this covenant. 17 Johns. Rep, 166, Fitch v. Borden ; % N. II. Rep. 460, Watts v. Wellman.</p> <p>2d, The defendant liad legal seizin of the premises. The mortgage from Pierce has never been discharged. Under certain circumstances, for the advancement of justice, the giving up and cancelling of a deed may revest the title. 10 Mass. Rep. 407, Commonwealth v. Dudley ; 1 Greenl. 78, Barrett v. Thorndike ; 1 N. II. Rep. 9, Tomson v. Ward.</p> <p>Other authorities, however, hold that the legal title to land, transferred by a deed not recorded, cannot revest in the grantor, by the surrender and cancellation, or destruction of such deed. 4 Conn- Rep. 550, Botsford v. Morehouse ; 5 ditto 262, Gilbert v. Buckley ;⅝ 6 Mass. Rep. 24, Marshall v. Fisk; 2 Johns. Rep. 84, Jackson v. Chase ; 2 H. Black. Rep. 264, Bolton v. Bishop of Carlisle ; 2 Lev. Rep. 113, Jfelthorpe v. Dorrington. And it is believed, that even in this state, the principle that cancellation re-vests the title, would not be sanctioned in a case where it would work ultimate injustice.</p> <p>But in the case at bar the mortgage was never cancelled, and the deed to Pierce not having been redelivered, or his title reconveyed to the defendant, on which event alone the mortgage was to he destroyed, Pierce had no authority to cancel it; but the defendant had a right at any time to reclaim it from Pierce. Had he reclaimed it in Pierce’s life time, it would have been available to him from its first delivery, and Pierce’s death cannot change the defendant’s rights. He has since reclaimed and received it— put it on record, and still possesses it. Had it remained in possession of Pierce, or been destroyed, it would have subsisted as a security for the debt. Where a deed cannot be produced, the substance of it may be proved. TO East 60, Hendy v. Stephenson. The mere destruction of a deed does not impair the title. 10 Coke’s Rep. 92 ; 3 D. & E. 151 ; 1 Greenl. 78. “ God forbid” says Eyre Ch. J. that a man should lose bis estate, by losing his title deeds.” 2 H. Blaek/263,</p> <p>The cancelling of the notes by Peirce does not affect the case. The debt still existed. No consideration passed for its discharge, and the destruction of the notes, which were merely evidences of the debt, does not discharge either the debt or the mortgage. 2 N. H. Rep. 527, Elliot v. Sleeper ; 13 Johns. Rep. 555, Dunham v. Day; 9 Mass. Rep. 242, Davis v. Maynard.</p>

Assumpsit on a contract in writing made the 12th August, 1825, in which, after reciting that there was a dispute between the parties about a certain line on the southerly side of said Buel’s lapd, it was agreed that certain referees should settle the said contested line, and that the parties should make and execute quitclaim deeds, each to the other, in such manner as to carry into effect the decision of the referees, and that whichever of the parties should refuse to make…

Assumpsit. The first count alleged that the defendant, on the 19th March, 1826, in consideration that the plaintiff would deliver to him $70, promised to return the same on demand.

Debt upon a bond dated May 3, 1823, in the sum of 110,000. The defendants craved oyer of the bond ; and oí the condition, one clause in which was as follows :— “ And also the said Thomas and Josiah shall well and truly perform and carry into effect on their part, in good faith, the agreement and contract entered into and signed by Thomas Carlisle, and company, Josiah Bellows, 2d, and John Dewey, dated April 17, 1823, in the course of ninety days from this date.” The…

This was an appeal from a decree of the judge of probate, in this county, allowing the account of the said Thomas S. Tillotson, as administrator of the estate of John M. Tillotson, deceased. The intestate died on the 22d August, 1822. The said Thomas was appointed administrator on the 3d September, in the same year.

This was a writ of entry. The demandants’ counsel moved for leave to strike out the names of two of the demandants, from the writ and declaration, they being tenants in common of the land demanded with other de-mandants. And in support of the motion, Goodall referred the court to 1 Pick. 224, Rehoboth and Sekonk v. Hunt ; 7 Mass. Rep. 291, Cokord v. Swan ⅜ ux.

This was an action of trespass for breaking and entering the plaintiff’s close in Holderness, and was tried here upon the general issue, at May term, 1827. The dispute between the parties was in relation to the dividing line between the bcm in qua, and the defendant’s adjoining close.

This was a writ of entry, in which the demandant counted upon his own seizin of land in Hanover, and upon a disseizin by the tenant. The tenant pleaded nontenure, to which the demand-ant replied an entry claiming a freehold, upon which issue was joined. The cause was tried here at November term, 1826, when it appeared in evidence that the tenant resided upon the land in the family of Joseph Reynolds.

Assumpsit upon a promissory note in the following words :— Orford, July lit, 1833. “ For value received we jointly and severally promise the president, directors and company of the Grafton Bank to pay them or order, five hundred dollars on demand with interest after sixty days. AARON HALE, THOMAS KENT.” The cause was tried here at November term, 1835.

This was an action of assumpsit for the support of three paupers alleged to have their settlement in Ells-worth. Rumney was unable to maintain the action for the support of two of the paupers and was entitled to recover for the support of the third pauper, only $7,73. moved the court to limit the costs.

Covenant broken. The plaintiff alleged in his declaration that the defendant, by deed dated January 6, 1816, conveyed to the plaintiff sundry lots of land in Lincoln, in this county, and covenanted that be at the time of making the deed was seized in fee, when in fact he was not so seized.

Assumpsit upon a promissory note dated October .27, 1823, for $55,11, payable to J. Morse, or order, on demand with interest, and by Morse endorsed. The action was commenced in the court of common pleas, where the same was tried upon the general issue with a notice of a set-off and a balance found by the jury, in favor of the defendant.

Assumpsit upon a promissory note for $100 payable to Caleb Knight, or order, on demand, and by him endorsed. The defendants pleaded severally the general issue, and each defendant gave notice that he should rely upon his several claims against Caleb Knight as a set-off. The cause was tried at.

Assumpsit. The declaration contained two counts. The first count was for $50Q money had and received. The second count was upon a promissory note dated December 28, 1825, for 0500, payable to the Grafton Bank, on demand with interest after sixty days, and alleged to be made by the defendant by the name of E. H. Mahurin.

This was an action of covenant broken on an indenture made the 12th July, 1811, by which the plaintiff demised to Seth Daniels, a certain tract of land to hold during her natural life, and the said Daniels covenanted with the plaintiff to pay her, on the first day of May, annually, a rent of $30.

This was an action of trespass. The defendant having craved oyer of the writ and declaration, and prayed that the summons, which was given to him by the officer, who served the writ in this suit, at the time of the service thereof, might be enrolled, prayed judgment of the plaintiff’s writ, and that the same might abate because “the summons aforesaid delivered to him by the officer, who served said writ when his the defendant’s goods and estate were attached at the…

, This was an action of assumpsit, brought to recover, among other things, for the transportation of 16# 1-2 bushels of salt from Hartford, in Connecticut, to M’Duf-fie’s ferry, in Piermont, in this state, and was tried here upon the general issue, at May term, 1826, and a verdict taken for the plaintiff, subject to the opinion of the court upon the following ease.

Tins was a writ of entry, in which the demandant counted upon his own seizin of a lot of land in Alexandria,, and upon a disseizin by the tenant. The cause was tried here upon the general issue at November term, 1825, when it was admitted, that one James Kenniston, being seized of the demanded premises, by deed dated the 10th September, 1808, conveyed the same to H. G, Cilley, who, by deed dated November 3, 1818, conveyed the same to the demandant.

This was an appeal from the decision of the commissioners appointed to examine the claims against the estate of Benjamin Rand, junior, the defendant’s intestate, which had been represented to be… Held: that when a computation of time ⅛ to be made from an act done, or from the time of an act, the day when the act is done is to be included. 3 N. H. Rep. 93, Priest v- Tarlton. But that is not this case.

This was an action of trespass against the defendants for taking and carrying away a large number of logs belonging to the plaintiffs, from Connecticut river and its banks, and was tried upon the general issue at April term, 1827, when it appeared in evidence that a great part of the logs taken by the defendants were forfeited under the statute regulating the mode of putting pine timber into Connecticut river,, and the action was maintained only with respect to one log found…

TROVER for three tickets in the grand state lottery in Rhode Island, one of which had drawn a prize of $500.

This was an action of covenant broken, brought upon a deed purporting a conveyance from the def endant to the plaintiff of a tract of land. The covenant recited in the declaration Avas, that at the time of executing the deed the granted premises were free of all incumbrances. The breach of the covenant assigned was, that at the time, of executing the deed, the premises were incumbered with a public highway.

Assumpsit for money had and received by the defendant to the use of the plaintiff. Upon the trial here at February term, 1S27, a verdict was taken for the plaintiff subject to the opinion of the court upon the following case. On the 17th September, 1826, one Isaac W. Chesley stole four oxen belonging to Samuel Jones, and several sheep belonging to another person, which oxen and sheep he afterwards sold to the plaintiff for f 71, paid by the plaintiff to Chesley in bank bills.

Case against the defendant, the sheriff of the county of Coos, for neglect of his deputy to return an execution and to pay over money collected. The cause was submitted to the decision of the court upon the following facts. .

This was an action, of trespass for breaking and entering, on the 1st July, 1825, and on divers other days, between that day and the 19th October, 1826, the plaintiff’s close in Durham, containing three acres, and bounded, &c. and taking and carrying away two hundred bushels of the plaintiff's apples, of the value of $50 and one hundred bushels of potatoes, of the value of $36, and cutting and carrying away the plaintiffs grass there growing, of the value of $40.

<p>TRoveR for 192 bars of iron, alleged to have been converted by the defendant to his own use on the 12th January, 1825.</p> <p>The cause was tried here upon the general issue at February term, 1827, when it appeared in evidence, that the defendant received the bars of iron at Portsmouth, for the purpose of transporting them for the plaintiffs, from that place to Exeter ; that while the defendant was on the road between those two places in the act of transporting the iron, his sled broke down and the iron was left in the highway during a night, and that when the defendant arrived at Exeter with the iron, it was discovered, that two bars were missing. The plaintiffs demanded of the defendant the bill of the iron, which he declined delivering, until the iron was weighed. After several unsuccessful attempts to have the iron weighed, some altercations arose between the parties and the defendant hauled the iron away.</p> <p>Some of the witnesses swore that the plaintiffs told the defendant, that he had belter leave the iron at their store and they would have it weighed. Others swore that the plaintiffs said, that two bars were missing and they would have nothing to do with the iron, and that the defendant said, that he did not want the iron and that he wished the plaintiffs to take it. There was also evidence tending to prove, that the plaintiffs told the defendant to carry the iron away and they would charge him with the whole quantity.</p> <p>Upon this evidence the jury were instructed by the court, that, if they were satisfied that the plaintiffs demanded the iron of the defendant and he carried it away without their assent, this was a conversion of the whole quantity of iron which the defendant received at Portsmouth and they were bound by law to find for the plaintiffs.</p> <p>But in case they should believe from the evidence that the plaintiffs refused to take the iron and charged it to the defendant, intending a sale, and that the defendant assented to this and carried away the iron, supposing that he had bought it, this action could not be supported, and they were bound to find for the defendant.</p> <p>The jury having returned a verdict in favor of the defendant, the plaintiffs moved for a new trial on the ground that the jury were misdirected in a matter of law.</p>

Assumpsit against the defendant as survivng partner of Charles K. White, deceased, upon the following writing, which had been given to the plaintiff’s intestate, Jo' seph Ela. “Concord, January 7, 1820.

Trover for seventeen horned cattle and two horses. The cause was tried here at February term, 1827, upon the general issue, when the plaintiff, to prove the property in the cattle to be in himself, read in evidence an indenture dated the 29th October, 1819, whereby he leased to one T. Tilton, a farm for one year, and such further time as both parties-should please.

Assumpsit upon a note dated October 27, 1814, for $159, 88, payable to the plaintiff. The defendant pleaded in bar that the cause of action did not accrue within six years before the commencement of the action. The plaintiff replied, that the defendant did promise within six years, and, upon this, issue was joined.

Assumpsit upon anote dated August 8, 1825, for $165, payable to the plaintiff, or order, on demand with interest. The plaintiff sued his writ returnable at the September term of the court of common pleas, in this county, 1826, and caused certain lands and chattels of the defendant to be attached by virtue of the same writ.

This was a writ of dower in which the demandants claimed the dower of the said Mary, in a certain mes-suage in Keene, in this county, and they counted upon the. seizin of Ezekiel Moore, formerly the husband of the said Mary, during the coverture, and on a demand of the tenant and a refusal by him to assign her dower.

This was a writ of entry, in which the demandants counted upon their own seizin of a tract of land in Richmond, and upon a disseizin by the tenants. Held: that where the extent alleges that the proceedings were commenced within thirty days after judgment, though some of them appear not to have been completed, till after-wards, yet they ail relate back to the time, when they were first commenced.

<p>This was an action of debt upon two promissory notes. The defendants pleaded in bar, among other matters, that the said several supposed causes of an action did not, nor did either of them, accrue to the plaintiffs at any time within six years next before the commencement of this suit.</p> <p>To which the plaintiffs replied, that the said several causes of action did accrue to the plaintiffs within six years next before the commencement of this suit, and concluded to the country, upon which issue was joined.</p> <p>The cause was tried here at October term, 1827. The two notes, on which the action was founded, were dated the 22d January, 1808, and the one was payable in six and the other in nine months, and this action was commenced on the 1st of June, 1822.:</p> <p>To maintain the said issue on their part, the plaintiffs introduced the evidence of one Moses Chapman, who testified that he went with the officer who served the writ in this case, to the house of Peter Wilder, to assist in the service ; that at the time the writ was served, the said Peter was asked, in his presence, whether the debt for which he was sued was honest, or whether he was only a bondsman ; that he answered it was honest ; that he was not a bondsman, but the original demand was for goods.</p> <p>Upon this evidence a verdict was taken by consent for the plaintiffs, subject to the opinion of the court upon the question, whether it was in law sufficient to maintain the issue, on the part of the plaintiffs.</p> <p>cited 3 Bing. 329, JP Court v. Cross ; 1 B. & A. 92, Hunt v. Parker ; 20 Johns, 277 ; 5 B. & C. 149 ; 2 Camp. 160 ; 3 B. & A. 626 ; 2 Brod. & B. 372, and ibid, 73 ; 20 Johns. 33.</p>

Trover for masts, spars, and logs. The conversion was alleged to have been made by the two defendants, and another person upon whom the writ was not served.

Case against the defendant., as sheriff of the county of Cheshire.

Assumpsit upon a note for $150, dated January 18, 1822, made by the defendants, and payable to the plaintiff in one year with interest. The cause had been submitted to referees, under a rule of this court ; and it had been agreed between the parties, that the referees should decide the cause upon just and legal grounds, and that at the hearing, the tcs-timony of the parties themselves should be admitted.

Debt. It was alleged, in the declaration, that on the 23d February, 1825, one Sally Dame, made her complaint to a justice of the peace, against the said Chesley, alleging that she was pregnant with a child which if bora alive might be a bastard, and that the said Chesley was the father of the said child ; that upon the said complaint such proceedings were had, that the said Chesley appeared at the court of common pleas, holden in this county, in August, 1825, to answer to…

Tms causo was tried hero at September term, 1S22, and a verdict returned in favor of the plaintiff, upon which judgment was rendered. Ladd, the defendant, sued out a writ, of review, but before a trial could be had in 1820, died, by reason of which the writ of review abated.

This was an action of trespass, for stopping the plaintiff’s team, and taking from his sled and carrying away, one cord of wood.

Trespass for breaking and entering the plaintiff’s close in Stratliam. The defendant pleaded in bar, first, a public highway through the loctis in quo ; secondly, a private way through the same, and issues were joined on tliesc ways. . . .

Assumpsit upon a promissory note. The cause was submitted to the decision of the court upon the following facts. ; This action was commenced on the 3d March, 1827, and real estate of the defendant attached by virtue of the writ. On the 13th June, in the same year, and after the service of the writ, and before the entry of the action in the court of common pleas, the defendant died.

This was a writ of entry, in which the demandant counted on her own seizin of two undivided third parts of several tracts of land in Bedford, and upon a disseizin by the tenant. As io one undivided third part of the demanded preuu-ises, the tenant disclaimed all claim of title, and as to the residue, he pleaded the general issue. The cause was submitted to the decision of the court upon the following-facts.

This was a writ of entry, in which the demandant counted upon his own seizin of a tract of land in New-Ipswieh, and upon a disseizin by the tenant. The cause was tried here upon the general issue, at October term, 1827, when it was agreed, that James Sanderson was once seized in fee of the demanded premises.

This was an appeal from a decree of the judge of probate, in this county, approving and allowing a certain instrument, as the last will of Joseph Noyes, deceased.

This was a writ of error, brought to reverse a judgment of the court of common pleas, rendered in an action of trespass, prosecuted by the plaintiffs in error, as executors of the last will of Darling Sahm, against the said Harkness, for taking and carrying away two grave stones and converting them to his own use.

This was an action of trespass, quart clausum fregit, and was tried here upon the general issue, at October term, 1827, when it appeared in… Held: that the authority of the husband was annulled, and that a surrender by the wife was valid, without the husband having joined — 341-351. The very reason given for the disability of a feme cov■* ert, viz. that she cannot convey “ without affecting her husband’s rights, which she cannot lawfully do, without his consent,” 7 Mass.

<p>Where a deputy sheriff returned upon a writ of attachment, under a particular date, that he attached a farm and left with the clerk of the town, where the farm was, a copy of the writ and of the return, it was held, that the court could not, upon such return, intend that the copy of the writ and return were left with the clerk on the day under which it was returned.</p> <p>Previous to the statute of 1822, relative to the sale of rights in equity to redeem land mortgaged upon execution, such rights could pass by an extent of an execution upon the land, as the estate of the mortgagors.</p> <p>If a mortgagee, after condition broken, enter upon the land and lease it, and his tenant continue in the peaceable actual possession of the land for a year, unless the right to redeem be exercised within the year, it is lost forever.</p>

<p>Where the payee of a note wrote upon the back of it as follows. — “If I am not living at the time this note is paid, I order the contents to be paid to A. H.,” and having signed it, afterwards died before the note was paid, it was held, that the endorsement was testamentary, and entitled to probate as a will.</p>

This was an action of assumpsit. It had been submitted to an auditor to examine the claims of the plaintiff, and report what sum was due. At the hearing, before the auditor, it was discovered that the plaintiff’s writ had been mislaid, and could not be found. The defendant objected to a hearing without the writ, hut the auditor proceeded, heard the parties, and reported that a certain sum was due, to the plaintiff. And now the plaintiff moved for leave to file a new writ.

This was an action of trespass, for breaking and entering the plaintiff’s close in Bartlett, in this county, it being the homestead of the late Nathan Dearborn, deceased, containing fifty acres, and taking down and car* rying away a barn on the 16th July, 1833.

In this cause, while on trial before the jury at this term, one John Hunter was offered as a witness on the part of the plaintiff. On the part of the defendant it was objected, that Hunter was not a competent witness, because he did not believe in the existence of a God. And it was proved that he had several times, within a short time before the trial, stated that he had no belief in the existence of a God.

Assumpsit upon anote for $15, dated March 10, 1820, and payable to John M. Tillotson, the intestate, in three years, with interest annually. 1 he cause was tried here upon the general issue, at November term, 1825, when it was admitted that the defendant ¡nade the note, but he offered in evidence, a eon-tract made at the same time between him and the payee, as follows :— ■ In consideration that Jacob Grapes has relinquished the Spaulding lot, in Northumberland, and given me…

Debt upon a judgment rendered in favour of the plaintiff, against the defendant, and one Joseph Prescott, by Stephen Freeman, a justice of the peace, in Vermont. The writ, in this case, was served only upon the said J. B. Prescott, who appeared and pleaded “ nil debet,” upon which issue was joined.

Assumpsit upon a note signed by the defendants for $120, dated January 30, 1824, and payable to J. Bell, in one year. : The cause was tried hereupon the general issue, at November term, 1826. Harford had been defaulted, and it was admitted that the suit was prosecuted for the benefit of the payee named in the note.

This was a libel for a divorce. The alleged cause was adultery, comrnitted by the said Jane, the wife of the libellant, on the 1st August, 1825, and on divers other days, between that day and the 1st December, 1825, with son* person to the libellant unknown.

Debt upon a probate bond, given by the defendant, when administration of the estate of Lucy Roby, deceased, was committed to him by the judge of probate in this county. The cause was submitted to the decision of the court upon the following facts.

In this case the issue joined between the plaintiffs, and Carlton, the supposed trustee, was, whether Carlton had in his hands at the time of the service of the writ, or at… Held: that Whiting must have been adjudged trustee bad he been summoned immediately upon the transfer being made. He was discharged solely on the ground that the assignment, originally fraudulent, had been made valid by matter ex post facto. L East, 95, Parr v. Eliason ; 3 Lev- 388, Smartle v. Williams.

TRespass de bonis asportatis. The defendant pleaded in bar that on the 1st March, 1821, there was, and ever since has been, a school district, known by the name of school district No. 4, in the town of Enfield, of which district the limits were then, and ever since have been, defined and established by a legal vote of said town of En-field ; that said Johnson, on said 1st March, 1821, was, and ever since has been, an inhabitant of said district, and possessing taxable goods…

<p>C-, as principal, and At. S. and G. as sureties, gave a note to a bank. M. paid . the amount due upon the note, G. having furnished him with one half the . money due. M. then brought an action against R for contribution and recovered of him one third of the money paid as aforesaid, and refunded to G. one half of the sum so recovered. 51. then pursued C., who had absconded, and received of him the amount paid by M. and G. — upon a review of the said action, after this by S. it was held, that for the sake of the remedy, the *um paid to the bank might be considered as paid by M. although one half the money was furnished by G. — it was also held that, although in general, whatever payment is made to one surety by the principal enures to the benefit of all, yet that rale does not apply to money received by one surety in satisfaction of his claim against the principal, after the sum paid for the principal is adjusted among the sureties, and the first judgment was affirmed.</p>

Assumpsit upon a note dated April 12, 1826, for $-1000, made by the defendant, and payable to the Grafton Bank, on demand, with interest, after, sixty days.

Debt upon a bond. The defendants craved oyer of tbe bond, and of the condition, which was, in substance, that the defendants should save harmless and indemnify the town of Lyman from all manner of expenses, damages, costs and-ch arares,- which should be imposed on said town by reason of the maintainance, education, and support of an illegitimate child of Ruth Buffum. The defendants then pleaded in bar — - 1st, Performance of the condition.

Tins was an action of replevin for a horse. The defendant pleaded in bar that the horse, at the time of the taking, was the property of one II. Tyrrell, and not of the plaintiff, and issue was joined upon the plaintiff’s property in the horse.

This was an action for criminal conversation with the plaintiff’s wife, and was tried here at May term, 1827, upon the general issue. * It appeared in evidence, in the course of the trial, that the… Held: in Hodges v. Windham, C£ that the plaintiff’s having suffered an adulterous connexion with other men was equally a bar, as if he had permitted the present defendant to be connected with her.

Replevin for cattle. The defendant avowed the taking, because the close, in which, &e. was the close of the defendant, and the said cattle being then and there doing, damage, he avowed the taking of them as a distress for such damage.

Assumpsit for $200 money, had and received by the defendant for the use of the plaintiffs. The cause was tried here upon the general issue at November term, 1827, when it appeared in evidence that in August, 1824, a highway was laid out by the court of common pleas, through the land of the defendant in Hampton, and his damages by reason thereof assessed at the sum of $120.

This was an action of trespass for breaking and entering the close of the plaintiff's, in New Boston, on the 25th November, 1826, and removing a house frame of the plaintiffs, and filling their cellar with stones, &c. The defendants pleaded in bar, that on the 30th November, 1813, the selectmen of New Boston, on the application of W. Crombie, laid out a highway in said town, three rods wide, from the bridge near Thomas Mullet’s to the bridge near the said W, Crombie’s, over…

This was an action of the case, for erecting- a dam across the river Nashua, in Dunstable, and continuing the same dam for two years from the 1st November, 1825, and by means thereof causing the water to overflow the plaintiff’s farm, whereby the farm was injured, the trees and timber destroyed, and the communication between different parts of the farm interrupted.

This was an action of trespass, de bonis asportatis. The cause was tried here upon the general issue, at April term, 1828, when it appeared in evidence that the defendant, being a deputy sheriff, took the goods mentioned in the declaration by virtue of a writ of attachment in favour of Gordon and Hayward, against one Palmer. The goods had been sold by Palmer before they were taken by the defendant to tbe plaintiff, but the sale was void as against the creditors of Palmer.

Assumpsit upon a certain writing in the words and figures following : — ■ “ For the purpose of providing a suitable court house in the town of Plymouth, and to have said town continue a half shire, we, the subscribers, severally promise to pay the sums set against our respective names, or so much thereof as may be necessary for said purposes, payment to be made to Arthur Livermore, in trust, for the use of us respectively, unless applied as above under the direction of a…

This was an action of assumpsit. The first count was upon an account annexed to the writ as follows :— “ 1823, June 22. Held: that if the defendant erected stalls and did not leave sufficient room for the market people to stand and sell their wares, so that for want of room they were forced to hire the stalls of the defendant, taking the money for the use of the stalls would in such case, be extortion.

This was a writ of entry, in which the demandant counted upon her own seizin of a parcel of land in Hanover, and upon a disseizin by the tenant. The cause was tried here upon the general issue, at November term, 1828, when it was admitted that the tenant was once seized of the demanded premises. The demandant then offered in evidence, a deed of the tenant, dated April 3, 1800, purporting to convey the same premises to D. Schofield and N. Cobb, in fee.

This was an appeal from a decree of the judge of probate, in this county, made on the 20th May, 1823.

Assumpsit for the freight of a quantity of salt, from Connecticut to M’Duffie’s ferry in Piermont, in this state. The cause was tried here at May term, 1828, upon the general issue, when it appeared in evidence, that the plaintiff received the salt at Middleton, in Connecticut, on the 4th November, 1820, and agreed to transport it up Connecticut river, and deliver it to the defendant, at Kimball’s landing, in Haverhill, in this state, common dangers excepted.

Assumpsit upon a promissory note.. The cause was tried here at November term, 1828, upon the general issue, when it was admitted, that the defendant made the note. It was then shown in evidence, on his part, that a suit was commenced by the plaintiffs against one James Batchelder, on the said note, the same ha\mg been made by said Batchelder as principal, and by the defendant and.

K. was indicted for unlawfully breaking and entering a public burying place, and digging up and carrying away the body of a person, who had been there interred.