Volume 40 — New Hampshire Reports

This is an action of trover, brought by Lucy C. Pike against William Clark and Henry C. Cowles, to recover the value of certain articles, being the produce of a certain farm, situated in Newport. For a long time prior to February 24, 1845, the plaintiff had been tbe wife of Ephraim Pike, who at that time was insane and an inmate of an asylum for tbe insane.

The reason of appeal assigned was that one of the subscribing witnesses to the will was only of the age of eleven years and five months at the time of the execution thereof; and it was agreed that the age of the witness was correctly stated in the appeal. The word “ credible,” as used both in the English statute of frauds and in our own statute concerning wills, seems to imply something more than mere competency in the witnesses attesting a will devising real estate.

Assumpsit on a promissory note, alleged to have been made by the defendants, Eleazer Jackson and William 8. Denting, on the 9th of August, 1856, payable to the order of the firm of Whitney, Shaw, Lent & Howes, at the Claremont bank, in one year, for $400, with interest, and by said firm indorsed to the plaintiff, Albro Blodgett. In a second count the plaintiff declared for $500, money had and received.

<p>Actual possession alone is sufficient to enable the possessor to maintain trespass guare clausum against one who subsequently enters without title, or authority from one who has title.</p> <p>By the statute of this State, the probate of a will is conclusive as to its execution, as relates to both real and personal estate; but no will is effectual to pass the title to either, unless it has been duly proved and allowed in some probate court of the State, or something equivalent to such approval and allowance has taken place.</p> <p>To make a copy of a foreign will and its probate, competent evidence of title to real estate here, the will must have’ been proved before some probate court in the State, or a duly authenticated copy of the will and its probate elsewhere must have been filed and recorded in some probate office here, upon application in writing for that purpose, after due notice, pursuant to a decree of the judge of probate to that effect.</p> <p>The court, against the objection of either or both parties, may properly instruct a jury to return, together with a general verdict, answers to specific questions submitted to them.</p>

This is a writ of entry, to recover a portion of lot No. 11, in the second range of lots in Littleton, in this county, originally commenced in the court of Common Pleas, and brought to this court by appeal. Piea, nul disseizin. Tbe plaintiff claims under a deed from tbe defendant to one Nathan Goddard, and an assignment thereof by. Goddard.

This was an appeal from a decree of the court of probate for this county. The appellee moved to dismiss the appeal, because there was no sufficient bond upon taking the appeal. It appeared that the bond was signed by the attorney in court of the appellant, who was not authorized to sign a bond for his principal by any instrument under seal. The bond was not objected to on any other account.

<p>Upon questions of skill or science, men who have made the subject matter of inquiry the object of their particular attention or study, may give their opinions in evidence; it being first shown that they are skilful or scientific, or at least that they have superior actual skill or scientific knowledge. Mere opportunity for observation is not sufficient.</p> <p>Hearsay evidence is incompetent to establish any specific fact, which is in its nature susceptible of being proved by witnesses who can speak from their own knowledge.</p> <p>Where several persons are proved to have combined together for the same illegal and fraudulent purpose, any act done by one of the party, in pursuance of the original concerted plan, and with reference to the common object, is, in contemplation of law, the act of all; and any writings or verbal expressions, being acts in themselves, or accompanying and explaining other acts, in furtherance of the common design, and so part of the res gestae, which are brought home to one conspirator, are evidence against the others, if it sufficiently appear that they were made and used in furtherance of the common purposes of the conspiracy; hut it is essential that the joint conspiracy and common design be proved.</p> <p>A question is leading which instructs the witness how to answer on material points, or puts into his mouth words to be echoed back, or plainly suggests the answer which the party desires to obtain from him, whether it he put in the alternative form or not.</p> <p>The admission of evidence wholly immaterial furnishes no cause for setting aside a verdict.</p> <p>Case for deceit in the nature of a conspiracy, cannot be sustained against a principal .and his agent jointly, for the unauthorized fraudulent acts and representations of the agent alone.</p> <p>Such action can only be sustained where some affirmation or representation wilfully false, or some designed and positively fraudulent artifice, is directly proved or necessarily to be presumed from the circumstances attending the transaction itself, to have been made or perpetrated by the defendants jointly, by means whereof a damage resulted to the plaintiff.</p> <p>A paper, prepared by one witness, after the date of the occurrences to which its contents relate, cannot be permitted to go to the jury with his testimony, as substantive evidence, for the purpose of confirming it and impeaching the testimony of another witness upon the same subject.</p> <p>proper measure of damages in an action for fraud and deceit in the sale of property, where the purchaser retains it, is the difference between the actual value thereof, and its value as it was represented to be at the time of the sale; the price paid being very strong, but not conclusive evidence of its value as represented.</p>

<p>The'decision of the judge of prohate, in all matters not strictly interlocutory, is final and conclusive, unless vacated hy an appeal therefrom.</p> <p>The proper time and place to charge an administrator with property belonging to an estate not inventoried or accounted for, are in the probate court on the settlement of his administration accounts.</p> <p>The question whether or not a deed was delivered, although sometimes of a mixed character, partly of law and partly of fact, is generally one of fact only.</p> <p>The declarations of an ancestor in relation to his ownership or transfer of property claimed hy his heirs, are competent evidence against them, if made against his interest, while he was in possession of all the rights and interest in the property which his heirs undertake to claim through him.</p>

Assumpsit, upon a promissory note of the principal defendant, payable to the plaintiff. The disclosure of Carpenter, the alleged trustee, having been taken, the questions arising thereon were transferred to this court for determination. The facts, material to the decision, sufficiently appear in the opinion of the court.

Assumpsit. The disclosure of George W. Nesmith, the alleged trustee, having been taken, at great length, the questions arising thereon were transferred to this court for determination. The matters in controversy sufficiently appear from the arguments of counsel and the opinion of the court. 1. A subscriber for stock in a corporation, if liable to the calls of the company on assessments, is liable to the creditors of the road in the trustee process. Comp.

<p>As a general rule, every bailee for hire, who by his labor and skill has imparted an additional value to the goods of another, has a lien, at his election, upon the property, for his reasonable charges in relation to it, so long as he retains the same in his custody.</p> <p>The gist of trespass being an injury to the plaintiff’s possession, while property remains in the possession of a bailee, who is entitled to, has assorted, and still maintains his lien thereon, the general owner cannot maintain trespass therefor.</p>

<p>Where, in a lease of real estate, there is a reservation of a portion of the crops to he raised upon the land, the general property and right to them remain in the landlord, the tenant acquiring neither the ownership nor the right to sell the same; hut while the tenant retains possession of them under the lease, he has such an interest as makes him a tenant in common, and must join with the landlord in an action for an injury to them.</p> <p>If, however, the tenant abandon the possession of the crops under the lease, or if he assent to a sale of his interest therein, and relinquish further claim thereto, the landlord may alone maintain trespass for an injury to the crops thus abandoned or sold with the assent of the tenant.</p> <p>The admission of immaterial evidence is no cause for setting aside a verdict.</p>

Petition for a new highway in the towns of Bath and Landaff, which, having been previously referred to the county commissioners, they, at the October term, 1859, presented a report, laying out the highway prayed for, agreeably to the prayer of the petitioners. Thereupon the town of Bath filed six exceptions to the acceptance of the report, the questions arising upon which were ordered by the presiding justice to be transferred to this court, as follows: 1.

This is an action of special assumpsit, brought by James M. Hadley against Lucius A. Russell, as a stockholder in the White Mountains Railroad, upon a debt against said railroad. The writ is dated March 21, 1859, and contains two counts.

<p>Before an auditor, neither party is entitled to fees as a witness, whether testifying in his own favor or for his adversary ; and neither party can properly refuse to testify when interrogated by the auditor or by counsel by permission of the auditor, because his testimony will favor the adverse party, nor because his fees have not been paid.</p> <p>Chapters 1952 and 2090, Pamphlet Laws, making parties witnesses, do not repeal the laws relating to auditors, nor do they modify or in any way affect any of its provisions.</p>

<p>When mortgaged real estate is- attached, and the attaching creditor demands an account, on oath, of the mortgagee, of the amount due upon his mortgage, and no account is rendered within fifteen days, or a false one is rendered, the effect of such failure to render a true account is to discharge the mortgage, as against the attachment of that creditor who made the demand for an account; but when there are several attaching creditors of the same mortgaged real estate, the mortgage remains in full force against all other attaching creditors except such as have thus made a demand for an account.</p> <p>But, when mortgaged personal property is attached, and the officer who makes the attachment makes a demand of the mortgagee for an account, in his own name and in his official capacity, and no account is rendered within fifteen days, or a false one is rendered, then he may hold such property discharged from such mortgage, and it may be again attached and held as against such mortgage, by such officer, at any time before or after the expiration of said fifteen days, so long as such officer holds said property in his actual custody by virtue of the attachment under which said demand was made; and no other or further demand for an account need be made by such officer while thus holding the property, in case of such subsequent attachment.</p> <p>A demand thus made by the officer upon the mortgagee for an account, is sufficient, without designating the creditor who has made the attachment, the claim sued, the nature of the suit, or the court at which the writ is returnable.</p>

This action was entered at the April term of the Court of Common Pleas, 1857, and continued from term to term until the October term, 1858, when it was referred to Andrew S. Woods, by agreement of parties, and continued.

Writ of Error. A suit had been commenced and entered at the April term of the Court of Common Pleas, 1858, and continued to the October term of the same year, when judgment was rendered upon default, in which Starrett was the plaintiff) and George, this plaintiff in error, was defendant; in which judgment the plaintiff' in error alleges there was manifest error.

<p>One who enters upon land under a deed with warranty, purporting to convey the fee, is presumed to enter claiming according to such title. Such party may maintain a writ of entry, though it appear that his predecessors had an estate less than a freehold.</p> <p>Under the plea of nul disseizin the tenant cannot defeat the demandant’s writ, by showing in himself an estate for years. He can set up such defence only by plea of special non-tenure.</p> <p>■When a verdict is taken by consent, it is to be assumed that every thing that could have been legally found for the party in whose favor the verdict is so taken, has been so found.</p> <p>The testimony of one of two subscribing witnesses to a deed of land, that he and the other subscribing witness were present and saw the execution, and subscribed their names as witnesses, is ordinarily sufficient, without the production of the other witness.</p>

<p>The plaintiff’s costs will not be limited when he recovers less than $13.33 as a balance of accounts, although he proves and assents to the defendant’s account before an auditor.</p>

<p>Voluntary declarations of a mortgagee are inadmissible to show a waiver of Ms rights under his mortgage in favor of a creditor of the mortgagor, whose rights have not been impaired by reason of such declarations.</p> <p>A bona fide mortgagee of personal property, which was at the time of the execution of the mortgage in the possession of the mortgagor, will hold it as against a previous attachment, if he merely knew, when he took the mortgage, that the property had once been attached, and had no notice that the attachment was still subsisting.</p> <p>And an assignee of such mortgage will also hold the property, although he knew, at the time of the assignment, that the attachment was claimed to be still subsisting.</p> <p>When an officer is liable in trespass to an assignee of a mortgage of personal property, for taking such property on an execution against the mortgagor, and' holding it until the assignee paid the amount of the execution and officer’s fees, the measure of damages, is the amount paid and interest, and reasonable compensation for the taking and detention.</p>

<p>A failure to comply with any of the substantial requirements of the statute providing for the appraisal or sale of a debtor’s lands on execution, will avoid the levy.</p> <p>An unincorporated place, if inhabited, and if the inhabitants are required to pay taxes, is a town ; hut not, if it is taxed and not inhabited.</p> <p>The words, “public place,” must he construed to mean such places as, in comparison with others in the same town, are those where the inhabitants and others most frequently meet or resort, or have occasion to he, so that a notice there would for that reason be most likely to he seen.</p> <p>The character of a town, and the situation and use of the place, and the amount of resort to it, if disputed, are matters of fact for a jury. But if the facts are apparent, it is a question of law what is a public place.</p> <p>"Where the statute requires notice of a sale to he posted up in two of the most public places in the town in which the property is situated, and the land is situated in a town which has hut one public, place, or in a place not incorporated nor inhabited, the statute is inoperative, and no valid levy can he made.</p> <p>A grantee, under a conveyance fraudulent against creditors, may take advantage of any defects in a levy made by such a creditor upon the property.</p>

<p>A deed of land upon a stream, described it by the number of the lot, and added, “being the same farm on which the said K. now lives.” An island in the stream, opposite to and nearest the farm, was not occupied by K. — Held, that the words were not restrictive, and the island passed.</p> <p>S. conveyed, with warranty, to K., land claimed by his father, and after the father’s death purchased the land of the heirs, one of whom was the wife of K., and released, with her husband, all her right. — Held,, that K. could not claim against his own deed the share of his wife, but that all the residue enured to him by estoppel.</p>

<p>An officer, who had returned on an execution the taking of a yoke of oxen and a yoke, cannot be permitted to testify, on a trial in trespass, that he did not take the yoke. He may, however, be permitted to amend his return according to the facts.</p> <p>"Without proof of authority from the father, a son has no more right than a stranger, to lend his father’s goods.</p> <p>A party cannot justify taking the property of a third person, as an assistant of a sheriff, unless the property is in fact taken by the officer under his process. It is no justification of such taking, that the assistant supposed, from the conduct of the officer, that the property had been attached.</p>

<p>Non-resident tax-payers are entitled to the same remedies for the abatement of an illegal or unjust tax as residents, upon complying with the requisitions of the statute; and they may properly be holden to have complied with those requisitions, if they have been guilty of no palpable and affirmative violation thereof.</p> <p>A non-resident petitioner must give security for costs, if insisted upon by the petitionee.</p>

<p>In section 16, chapter 208, of the Kevised Statutes, relating to the trustee process, the words “personal property” include promissory notes and other choses in action, such as are enumerated in section 15 of the same chapter ; and when a person summoned as trustee holds such notes, &c., due to the principal debtor, in pledge or as collateral security, a receiver should be appointed.</p> <p>H., who held notes payable to G., as collateral security for G’s indebtedness to him, afterward signed a guardian’s bond with G., at his request, which guardianship, from the nature of the case, would be likely to continue for a series of years; and it was agreed at the time that H. should also hold said notes as security or indemnity against any liability upon said bond:</p> <p>Held, that such agreement, if made Iona fide, is valid, and must be carried into effect, and that a creditor of G. cannot take such notes from the hands of H. by the trustee process, without first indemnifying him against his liability upon such bond ; and the fact that H’s liability upon the bond is contingent or remote, does not change the principle.</p>

<p>A forfeiture of a grant can only be taken advantage of by the grantor, and cannot be inquired into collaterally.</p> <p>Where, from the language used in a grant of a water-power or privilege, it is left doubtful whether the intention was to limit the purposes for which the water is to be used, or only the quantity to be used, the court will favor the latter construction.</p> <p>A grant of a sufficient quantity of water to carry two runs of stones in a certain grist-mill, limits only the quantity of water to be used ; but that quantity may be used for any purpose.</p>

<p>It is no defence to an action upon a note that the consideration of it was another note, against one B., transferred to the defendant by the plaintiff, with a guaranty of payment before the note in suit should fall due, which note against B. has not been paid.</p> <p>An indictment for perjury is insufficient which charges the false statement of the above facts, in an affidavit made by a defendant, upon a motion for the continuance of a civil action at the first term, under the 27th rule of court; such facts not showing probable ground of defence, and being immaterial upon the question of continuance.</p>

<p>Corporations have no powers except such as are given them by their charters, or such as are incidental and necessary to carry into effect the purposes for which they were established.</p> <p>A charter, giving authority to make and keep in repair a road to the top of Mount Washington, to take tolls of passengers and for carriages, to build and own tpll-houses, and to take land for the road, does not authorize the corporation to establish stage and transportation lines, or to buy carriages and horses for such a purpose.</p> <p>An additional act, authoz-izing the company to erect and maintain, lease and dispose of any buildings found convenient for the accommodation of their business, and of the horses, carriages and travelers, passing over their road, does not authorize the purchase of carriages and horses for the purpose of transportation.</p> <p>The powers of the agents of corporations are necossarily limited to such contracts as the corporation may lawfully make.</p> <p>A corporation cannot ratify a contract, made by their agent, which they could not lawfully authorize.</p>

Replevin, by tbe plaintiff, Joseph A. Dalton, as assignee in insolvency of Warren P. Davis, for thirteen hundred sides of African leather, valued at $2000, &c., alleged to have… Held: the claim was not presented, and this suit was commenced and the property attached. Their claim was justly due, and judgment has been since recovered in the action. The security held by the bank exceeded the amount of the note, but it was deposited, not by Davis, but by one of his sureties.

<p>The right of a married woman to a homestead, to be assigned to her after her husband’s death, is not impaired by her removal from the premises during his life.</p> <p>Whether the widow is or is not in possession of all or part of the estate in which she is entitled to a homestead, she may maintain a petition for partition, and have her estate assigned to her in severalty.</p> <p>No demand of a homestead is necessary to be made, to enable a widow to maintain her petition for the assignment of her homestead interest.</p> <p>It is not a valid objection to a petition for the assignment of a homestead, that the petitioner has not an estate, but merely a right in the premises.</p>

<p>If the condition of a mortgage is broad enough to cover future claims, it will be construed to apply to existing debts, or liabilities, if the language does not forbid such construction, and the mortgage will not be void for that cause as to existing claims.</p> <p>The form of the oath prescribed in case of personal mortgages, precludes their being made to secure future claims.</p> <p>As the statute requires the debt or liability intended to be secured, to be specified in the condition of the mortgage, a general description of all debts, or all demands, will not be sufficient.</p> <p>A mortgagee, being called on for an account of the debt or demand secured by the mortgage, returned a statement: “I consider the following claims or demands to be secured by a joint mortgage to me and T. O., to wit,” and then stated the dates, amounts, &c., of certain notes, without stating the amount due on them. — It was held, that the account was insufficient.</p>

<p>A married woman contracted alone for the purchase of real estate. The seller executed to her a warrantee deed of the land, describing her as the wife of J. George. The habendum was “to her own use and behoof forever,” and not in the language of the statute, “ to her sole and separate use, free from the interference and control of her husband.” The wife at the same time made a mortgage of the land to one who advanced a part of the purchase money, in her own name alone, without joining her husband. The mortgage was assigned to the plaintiff, who brings his bill to foreclose it. — Held, that the mortgage is void at common law, and is not saved by any statute.</p> <p>If it were held that, by avoiding the mortgage, the deed of the seller would be avoided, as a part of the same transaction, it would not aid the plaintiff, who is not an assignee of the seller.</p> <p>"Whether the party who advanced the money could claim a resulting trust in such a case, quaere ?</p>

<p>Where property is purchased by a partnership, notice to one is notice to all the partners; yet, if one of two persons, about entering into partnership, purchase of the other an undivided interest in property owned by him, to be held by the two for the use of the firm, this principle as to notice does not apply.</p> <p>Where one was tenant for years of a spring, under a lease not recorded, and another purchased one half the land in which the spring was, without notice of the incumbrance, and subsequently purchased the other half, with notice, they were held to be tenants in common of the spring while the term continued.</p> <p>And the deed, upon a bill for that purpose, will be regarded as reformed, as to one half the property, by an exception of the tenant’s right to half the spring.</p>

<p>A father is entitled to the custody of his minor children ; and in the case of a child ten years of age, the court, on habeas corpus, will ordinarily award the custody to him, unless it be made to appear that he is clearly unfit for the trust, or has, by some legal act, parted with his parental rights.</p> <p>Nor will the action of the court be controlled by the wishes of a child of such tender years.</p>

<p>While a debtor was in the act of moving into bis dwelling-house, with a design to occupy it as the family homestead, and having no other real estate, the plaintiff, his creditor, attached it upon mesne process, and the debtor completed the moving in on the next day, and has ever since occupied it as the family home. The plaintiff afterward obtained judgment in the suit, and extended his execution upon the whole property ; and although due application was made to the officer, he refused to set off a homestead. — Seld, that the property must be regarded as the family homestead at the time of the attachment, and that although it exceeded in value the amount exempted by the law, the duty of the sheriff upon such application was imperative, and he had authority to extend the execution only upon the surplus, after setting off the homestead in the manner prescribed by the statute, and therefore that the extent was wholly void as against this defendant, the debtor.</p>

Assumpsit, for the support of Lucinda McAllaster, a pauper, from April 6 to August 24, 1857, at $20. Plea, the general issue.

This was an action of trover, brought by Jeremiah B. Durgin against Calvin Gage, for the conversion of four lathes, two anvils, one trip-hammer, one grindstone, and all the tools and machinery in the shop occupied by Hiram Gage, in Boscawen, in this county, in all of the value of §1000. The writ was dated June 21, 1859. Plea, the general issue.

<p>Upon a petition to widen and straighten an existing highway, the commissioners, in straightening curves or corners, may depart entirely, for short distances, from the route of the old highway; and the fact that the new route varied in some places four rods from the limits of the old road, is no objection.</p> <p>But a new highway cannot be laid out upon a petition to widen and straighten an existing highway.</p> <p>An existing highway is properly .widened if the additional strip of land is needed for any public use connected with the highway; and where this additional land is or has been put in proper state and condition for such use before the road is widened, and while it thus continues, an information or indictment for unnecessarily neglecting to alter and put in proper repair such road, could not be sustained.</p> <p>But if there is any thing to be done before said additional strip of land is fitted for the use for which it was intended, which the town have neglected to do, such information or indictment may be sustained, if that neglect has been unreasonable.</p> <p>A neglect to alter, for six years after a road is widened, when such alteration is necessary, is an unreasonable neglect.</p> <p>When there has been such neglect, under such circumstances, evidence offered for the purpose of proving that there has been no nuisance, injury, or inconvenience in any way to the public or individuals from such neglect, is inadmissible.</p>

<p>A committee to make partition of land known as tbe “ Thomas Clough purchase,” between heirs, set off to No. 7 as follows: Beginning at the south-east corner, and running north “ to the south-east corner of the fourth division lot, No. 70; thence westerly, on the divisional line between said purchase and said lot, so far as to make seventy-six rods directly west from said corner, to a stake and stones;” thence south, &c.; and to No. 8 as follows: Beginning at the south-west corner of No. 7, thence north, &c., to said stake and stones, as “the north-west corner of share No. 7; thence westerly, on the line of said purchase, to the one hundred acre lot No. 3 then southerly, &c., and made report accordingly. — Held, that the phrase, “ so far as to make seventy-six rods directly west from said corner,” has reference rather to the width of lot 7, at the north end, than to the location of the stake and stones, and that said stake must be in said divisional line, whatever its direction from said corner of lot 70. — Seld, also, that evidence to prove that the committee ran out and established a line as the north line of said Clough purchase, and fixed bounds there, 'which bounds and line are some distance south of the true corners and line between said purchase and said lot 70, and that said committee made their partition upon and according to that line and those bounds, and intended to bind the heirs by that line .instead of the divisional line between said lots, is inadmissible, as tending directly to contradict the terms of the report.</p>

The case was submitted upon the following agreed statement of facts: Abraham Prescott, the defendant’s intestate, signed a subscription paper, payable to the plaintiff, with this condition above his signature: “ Provided $6,000 shall be raised in the city of Concord, N. H., for the above object, I will pay $500 of it.” Said $6,000 was subscribed by citizens of Concord, and $500 of that sum by one Corning, under the following circumstances: One Eaton, an agent of the…

This cause came on for trial at the February term, 1860, in this county, when, upon the facts proved, the following case was made: The action was assumpsit, brought by Jonathan Clark against the TJnion Mutual Fire-Insurance Company, on a policy of insurance dated August 1, 1853, insuring, in the second class of the defendant company, the plaintiff’s dwelling-house, ell, and out-building, situated in Manchester, New-Hampshire; the policy, application, charter and by-laws…

<p>Tbe Supreme Court will not grant an extension of a commission of insolvency, after the expiration of two years from the date of the original commission, though the petitioner may have been prevented, by accident, mistake, or misfortune, from presenting his claim, or applying for an extension of the commission within the term limited by law for its extension by the court of probate.</p>

<p>Non-tenure, general or special, is a good plea in abatement to a writ of entry brought to foreclose a mortgage.</p> <p>But if there be no disclaimer, the plaintiff may always Teply, maintaining his writ, and if on trial it appear that the defendant is in possession under a title subject to that of the plaintiff, the plaintiff will be entitled to judgment.</p> <p>Hence, a defendant in possession can only successfully plead non-tenure special.</p>

Assumpsit, upon an agreement of the defendant, made September 26, 1857, that, in consideration of his having that day contracted to purchase of the plaintiff a house and lot on Pine street, in Manchester, and promised to pay him therefor one thousand dollars on the first day of January, then next, he would pay the plaintiff one hundred dollars on the second day of January, then next, if he failed to make the payment of one thousand dollars according to his promise.

<p>Where a specific performance of a parol agreement to convey lands is sought in equity, and part execution of it is relied upon to take the case out of the statute of frauds, the act of part execution must have clear and unequivocal reference to such agreement.</p>

<p>Where a motion was made hy a plaintiff to set aside a verdict, for error in the ruling of the judge, and because the verdict was against evidence, and the questions were assigned to this court, the motion overruled, and judgment ordered upon the verdict, — on a subsequent motion to set aside the verdict, on the ground that hy mistake, accident or misfortune justice had not been done, the motion being founded on the matters embraced in the original exceptions, it was held, that section 24 of the law of 1855, remodeling the judiciary, conferred no new power upon the court to grant new trials, and that the matter of the second motion must he regarded as already adjudicated.</p>

This is a bill in equity, brought by the administrator of Henry Gr. Wilson against John Huse and the City Bank, to redeem certain lands in Manchester, owned and mortgaged by said Wilson and Barnet H. Cheney to said Huse, upon which said Huse, under process, had entered for condition broken and to foreclose the mortgage, and had continued in possession for one year.

<p>When an attorney brings a suit without any authority from the plaintiffs, and the defendant obtains a judgment for costs, a court of equity will restrain the enforcing of such judgment by a perpetual injunction, if it be shown that the attorney is poor and unable to respond.</p> <p>The law of June, 1858, mating parties competent witnesses, applies to actions pending at its passage.</p>

Petition for a new trial, brought by Asa T. Barron against Jackson & Norris, the facts connected with which appear in the opinion of the court.

<p>If a protestando in pleading be inconsistent or repugnant, it will be rejected as surplusage; its design being merely to preserve the rights of tbe party in some other suit or proceeding.</p> <p>In giving a construction to an indictment or other pleading, the obvious purpose of the pleader should have influence in the collocation of the sentences, and a term used may be referred to that antecedent which accords with the general tenor of the proceeding, whether it conforms to strict grammatical rules or not.</p> <p>An indictment for obstructing an officer in the service of legal process must expressly allege such process to be legal, or so describe it that it shall appear to be so; andan allegation that the sheriff was “in the due and lawful execution of his office” is not sufficient.</p> <p>So, when the process was a writ of replevin, the indictment should state that the bond required by law before the service thereof had been given.</p>

Assumpsit, upon a policy of insurance, issued by the defendants to the plaintiffs, January 1, 1855, insuring them for one year, in the sum of $8000, upon their brick block in Manchester.

Debt upon a recognizance. At the April term, 1858, of the Court of Common Pleas for this county, the plaintiff recovered a verdict, by consent, against the defendant, for fourteen dollars damages, in an action then pending in said court, in her favor, against the defendant, and judgment was rendered thereon against the defendant for the sum of fourteen dollars damages, and the sum of fifty-eight dollars and thirty-six cents costs of suit, from which judgment the defendant…

<p>"When evidence of ^ parol letting of real estate for a year without any express agreement as to the time when rent should be paid, is admitted to prove that time, but not to show the conveyance of an interest in lands, it is no objection to such admission that the parol agreement was inoperative.</p> <p>When it is necessary to prove a demand of rent, and it appears that rent bills were presented to the tenant, the person presenting them, being a competent witness, may testify what his intention and understanding were in presenting them.</p> <p>In trespass guare clausum, where the malice of the defendant may be ground of exemplary damages, he, being a competent witness, may testify what his motive and purpose were in doing the acts complained of.</p> <p>A demand of rent, when made, may be waived. A mutual understanding on the part of landlord and tenant that a demand is waived, constitutes a waiver; and evidence of long delay to give notice to quit, and payment of rent, is admissible to show such understanding.</p>

<p>One tenant in common cannot maintain trover against his co-tenant for crops in which they have a joint interest, until a separation or severance hy the parties, or until such a conversion shall exist as goes to the destruction of the crop, or the entire exclusion of the co-tenant from the enjoyment of his right and interest therein.</p> <p>Evidence tending to show the assessment and payment of taxes upon property is properly admissible to show ownership in the party taxed, while he claims actual possession of it; although not conclusive of the fact.</p> <p>In cases where merely third parties are interested, it is sufficient to show that a selectman, or other officer, acted in that capacity, or was an officer de facto ; and this may be shown by parol evidence.</p>

This is an action on tbe case, to recover damages sustained by the plaintiff from an alleged defect in the highway called Manchester-street, in said city. To prove the existence of such highway, the plaintiff introduced a book of records of said city, containing a record of an application to the selectmen, an order of notice, record of the laying out of such street, and the payment of the damages awarded.

The plaintiff’s declaration contained two counts, substantially as follows: (1.) In a plea of the case, for that the defendant, being a common carrier of goods for hire, on the first day of December, 1855, at Boston, &c., in consideration that the plaintiff, at his request, delivered to him one parcel containing one piece of Shaker cotton flannel, of the value of ten dollars, &c., &c., for that purpose, promised to take care of, safely carry from Boston aforesaid to Mason,…

In Equity. The bill states that the Winnipiseogee Lake Cotton and Woolen Manufacturing Company have long been and are seized of a waterfall and mill privilege at Folsom’s Falls, upon the Winnipiseogee river, in the towns of Laconia and Gilford, in the county of Belknap, of land near and around the same, and of the mills at said falls; that they derive their title on the north-west side of the centre of the river from N. Batchelder, who, on October 20, 1829, and for years…

<p>All judgments, properly rendered by a court having jurisdiction of the cause and of the parties, are conclusive between the parties and their privies.</p> <p>The jurisdiction of a 'superior court of common law is to be presumed unless the contrary appear, and nothing shall be intended to be out of its jurisdiction but that which specially appears to be so.</p> <p>If, however, the judgment of a common law court of general jurisdiction be rendered by accident or mistake, or through fraud, or any fact exist which proves it to be against conscience to execute the judgment, of which the injured party could not have availed himself in a court of law, or of which he might have availed himself at law, but was prevented by fraud, accident or mistake, unmixed with any fault or negligence of himself or his agents, a court of equity may interfere, by temporary or perpetual injunction, to restrain the adverse party from availing himself of such a judgment.</p> <p>Fraud will vitiate any judgment, and a court of equity may declare it a nullity. Equity has so great an abhorrence of fraud that it will set aside its own decrees, if founded thereupon.</p>

<p>An execution which correctly states the judgment on which it is founded, is not vitiated by an error of the clerk in computing the aggregate amount of the debt and costs in such judgment.</p> <p>Under the provisions of the Revised Statutes, interest was collectable on an execution issued before they went into operation.</p> <p>After the lapse of seventeen years, the maxim de minimis will be holden applicable to an excess of seventy-seven cents in the levy of an execution upon real estate.</p> <p>Where there is an excess in the levy of an execution resulting entirely from a mistake in the computation of the clerk who issued it, with no designed or intentional wrong on the part of the creditor or officer making the levy, such excess will not avoid the levy.</p> <p>Where there is an excess in a levy solely through a mere mistake in fact as to the amount of the judgment levied, the levy will not be holden void, but the aggrieved party be left to his remedy in equity, where, by a proper decree, the creditor may be compelled to relinquish so much of the property levied upon as would be equal to the excess levied, or pay an equivalent therefor in money.</p> <p>The creditor, his heir or representative, upon the discovery of such mistake, may come into a court of equity, and have the error corrected, by relinquishing a portion of the property levied upon, equal in value to the excess, or by refunding in cash the amount of the excess, with interest from the date of the levy.</p>

This was an action of assumpsit upon tbe following-promissory note: “ $1,000. Holderness, August 21, 1851.

Assumpsit, submitted upon tbe following agreed statement of facts : November 1,1853, tbe defendant gave a deed of certain real estate to Daniel Gr. Ladd, the plaintiff’s intestate, in consideration of which Ladd gave up to Tilton four promissory notes, one dated October 1,1852, for $350; one dated September 4, 1852, for $100; one dated January 29,1853, for $50; and one dated April 15, 1853, for $100; and also paid him $420 in money. The notes were all on interest.

<p>Under the act of 1796, if an alleged pauper resided in the town sought to he charged, was taxed for his poll for the term of seven years, and paid all taxes legally assessed on his poll and estate during that term, ho gained a settlement there.</p> <p>By the act of 1791, selectmen were required to make assessments of taxes, and to record them in their hook, which was to he the property of the town, and open to any of the inhabitants of the town. — Held, that the selectmen’s book, containing the assessment of taxes, in proper form, furnishes competent primáfacie evidence of the fact of the due assessment of resident taxes.</p> <p>The invoice and assessment of taxes, or copies of them, especially of the resident taxes, are not required to be filed in the town-clerk’s office before the committal of the lists to the collectors of taxes; and even if such deposits were essential, where the transaction was an ancient one, the jury might reasonably presume a compliance with the law, or the former existence, and'the loss of the record; and if more than twenty years had elapsed since the taxation, the jury might properly presume the taxes paid; and upon such a state of facts a motion for a nonsuit was properly overruled.</p> <p>To rebut the evidence of an alleged pauper’s poverty and inability to pay taxes, it is competent to show that he had money and other property sufficient to discharge them during the time in question.</p> <p>The fact that the son of an alleged pauper, having no settlement, except by derivation from his father, was supported by the town sought to be charged, is competent evidence against the town, because it is in the nature of an admission.</p> <p>Upon the production of mutilated books, it is proper for the jury, to consider their appearance, and among other things, any evidence they present of a fraudulent alteration.</p> <p>Where alleged causes of exception to a juror appear from the venire and return, and the juror sits in the case without objection, it is too late to make objection for such reasons, after verdict.</p>

<p>In Equity, upon a bill brought by Joseph E. Dennett against "William H. Dennett, to stay waste. It appeared by the bill, answer and evidence, that Jeremiah Dennett was seized of a farm of one hundred and eight acres, in Portsmouth, bounded, &c., and on the 7th of April, 1812, by his will, proved on the 17th of August, 1818, devised as follows: “I give and devise to my son, Mark Dennett, all the residue of my estate, to descend, to the youngest son of his body, lawfully begotten, and from him to the oldest heir male of said youngest sou of his body, lawfully begotten, and in failure of such issue, then to the heirs of said Mark Dennett forever.”</p> <p>Mark, immediately on the death of Jeremiah, entered into possession of this farm, which was covered by this devise, and continued in possession till his death, August 19, 1858.</p> <p>On the 19th of November, 1852, Mark, by his deed of warranty of that date, conveyed the premises to his son, William H. Dennett, the defendant, reserving a life estate therein to himself. Under this deed William entered and is in possession.</p> <p>The plaintiff, Joseph F. Dennett, is the youngest son of Mark, and was born February 7, 1821.</p> <p>On the 12th of July, 1842, Mark Dennett, by his deed of warranty, duly executed and recorded, conveyed the premises to one Mark It. Wendell, in fee, and on the 14th of said July, Wendell, by his deed, re-conveyed the premises to said Mark Dennett. The case was fully and elaborately argued by</p>

<p>Upon the question of due diligence in giving notice of the dishonor of a note to the indorser, the result of inquiries, made subsequently to the sending of the notice, is immaterial and incompetent.</p> <p>Parol testimony is inadmissible to show the contents of a written memorandum, the loss of which has not been shown.</p> <p>The holder of a dishonored note is bound to exercise ordir ary and reasonable diligence in ascertaining the residence or business address of the indorser, and in forwarding notice of the dishonor to him accordingly.</p> <p>If he inquire of persons who, from their connection with the note, or their acquaintance with the indorser, are likely to know his residence, and are not interested to mislead him, and is distinctly told where the indorser resides, and in good faith seasonably acts upon the information thus obtained, it is due diligence on his part.</p> <p>Where the holder of a dishonored note, not knowing the residence or business address of the indorser, went to the principal hotel in the village where the indorser was accustomed to do business — that at which men of the same occupation with the indorser usually stopped — to the keepers of which the indorser was well known, and from the direction of rwhich the holder had noticed the indorser coming to his own place Of business — and, upon inquiry there, was distinctly informed that the indorser resided in a particular town ; whereupon he, in good faith, seasonably forwarded notice of the dishonor to the indorser at that town— Held, that this was due diligence in the holder.</p>

Case, against the defendant as sheriff of this county, for the default of his deputy, A. C. Clement, under the following circumstances: In the spring of 1857, E. N. & S. N. Cummings hired a brick-yard, in Plaistow, and employed John Greenwood to manufacture bricks for them thereon, at $2.15 per thousand.

Assumpsit, by the plaintiff, as guardian of Abigail C. Smith, an insane person, to recover the sum of $60 and interest, alleged to belong to the ward as residuary legatee of her sister, Sarah G. Smith, who died in 1847, and of whose last will Aaron Jewett, formerly the husband of the defendant, and who died in 1852, was sole executor. By her will said Sarah (4.

<p>Where property is subject to execution, a creditor who has obtained a specific lien upon it by attachment, judgment, or the issuing of an execution, may maintain a bill to set aside or remove a fraudulent conveyance or obstruction to a levy thereon.</p> <p>Under the provisions of the statute, the Supreme Court may make such orders in relation to the property, real or personal, of a husband ordered to pay alimony to a divorced wife, as may be necessary to carry the decree for alimony into full effect and protect the rights of the wife.</p> <p>While parties are enjoined in chancery against aiding or assisting another in conveying or otherwise disposing of his property, they will not be permitted to secure an alienation thereof to themselves by proceedings at law against him as their debtor.</p> <p>A perpetual injunction against one’s alienating his interest in certain property as against the plaintiff’s claims upon it, gives to the plaintiff an equitable lien upon that interest to the extent of those claims, at least as against the parties to the suit in which the injunction issued.</p>

This is an action on the case, brought by the plaintiff, who is an inhabitant of Hampton, in said county, against the defendants, who were selectmen of North-Hampton, in said county, for the year 1859, for an alleged illegal assessment of taxes for that year upon four tracts of land in said North-Hampton, owned by the plaintiff, and taxed as non-resident lands.

This is a bill in equity, bi’ougbt by Eliza J. Smith and her husband, and Sarah E. Jewett, the said Eliza and Sarah being daughters of Aaron Jewett, deceased, against Nancy Jewett, his widow, and Deborah L. Jewett, also a daughter.

Assumpsit, to recover the amount of freights due the plaintiffs, for the transportation of coal, iron and sand, from Portsmouth to Exeter in their boat, from August 8, 1856, to October 22, of the same year, inclusive. The declaration contained the usual counts for ti’ansporting coal, &c., to the amount of $250. The specification was for a balance of $178.12. The action had been referred to an auditor, who reported in favor of the plaintiffs a balance of $35.76.

Assumpsit, brought by the plaintiff as indorsee, against the defendant, as second indorser of a certain promissory note, dated August 25, 1851, drawn by one Daniel S. Watson, and made payable to the order of Montgomery & Co., for the sum of $622.50, in three months from date, at the Merchants’ Bank, in Boston, and by said Montgomery & Co. duly indorsed for value received to the defendant, and by him in like manner indorsed to the plaintiff The plaintiff’s writ was dated…

In Equity. In the bill, Clement March, 'William P. Jones, Alfred W. Haven, A. M. Barnes, Executrix of Lewis Barnes, and James W. Emery, are set forth as the plaintiffs, bringing this bill in behalf of themselves and all other stockholders in the Eastern Eailroad in New-Hampshire who come in and join in this suit, &c., against The Eastern Railroad Company, The Eastern Railroad in New-Hampshire, Ichabod Goodwin, Daniel P. Drown, Benjamin T. Reed, George W. Brown and Stephen A.…