Volume 41 — New Hampshire Reports

Debt, upon an award. Tbe case was submitted upon the following agreed statement of facts. The parties signed the following submission to arbitration: “Articles of agreement made and concluded this twenty-first day of August, A. D. 1858, between Prescott & Phil-brick, of Candia, in the county of Rockingham, and State of New-H.ampsh.ire, on the one part, and David A. Fellows, of said Candia, on the other part.

The questions involved in this case arise upon the disclosure of the trustee, Edmund M. Brown; the substance of which is as follows : The trustee first denies, generally, having any funds of the principal defendant, James C. Brown, in his possession. Answer to Interrogatory 2. “lama cabinet-maker, and dealer in furniture.

Case. Tbe writ, dated December 12, • 1855, sets forth that tbe plaintiff, Susan M. Worster, on tbe 1st of August, 1853, and since, was possessed of two acres in common and undivided of a tract of land in Rochester, containing fifty acres (desciibed), and tbe defendants then and since have maintained a dam called Mastpoint dam, partly in Somersworth and partly in Berwick, Me., across Salmon Falls river, and thereby caused tbe water of said river to overflow tbe plaintiff’s…

<p>A cashier of a bank has power, prima facie, to indorse for collection notes discounted, and notes deposited to be collected, or deposited as collateral security.</p> <p>It is sufficient evidence of a ratification by the bank of the cashier’s in-dorsement, that the bank prosecutes the suit in the name of the indorsee. A conversation between the principal signer of a note and a supposed surety who denied his signature, after the latter had seen the note, in the absence of any person interested for the holder, was held incompetent to affect the latter.</p> <p>The silence of a party, to whom a note, purported to be signed by him, was shown, with a request to pay it, is competent evidence that his signature is genuine; or, if not genuine, of bis assent to be bound by it.</p> <p>Such silence does not operate as an estoppel upon the party, to deny or disprove his signature, unless the holder has been led to change his position, or otherwise act upon it to his injury.</p>

Assumpsit, on a promissory note of tlie defendants, for $232.50, dated June 16, 1856, signed by E. E. Colbath and C. M. Demeritt, two of the selectmen, by order and in behalf of the town, originally páyable to H. Hollins & Co., or order, in six month's from date, and by them indorsed to the plaintiffs. The writ contained a second count for $400 money had and received. Plea, the general issue.

Case, for injuries sustained by the plaintiff, Dennis Clark, by being thrown from his wagon through a defect in the highway.

INDICTMENT, charging the respondent with the forcible seizure and abduction of G-elietta Farrar, from Dover, in this county, on the 8th day of October, 1859, and the forcible removal of said Gelietta from the State without her consent and against her will. Plea, not guilty.

<p>A -witness may be impeached, by showing that he has made contradictory-statements, although his denial of such statements is not positive, but merely that he does not remember them.</p> <p>When a party is put upon inquiry as to the existence of a prior unregistered deed, the question, whether he has made due inquiry, is one of fact, to be determined by the jury, under the instructions of the court; and for that purpose the information obtained by him from proper sources may be proved, though it cannot be used to bear upon the question whether or not there has been such a deed.</p> <p>The opinion of a witness, previously expressed, as to the general merits of the case, will not ordinarily be admitted to impeach his testimony.</p>

Assumpsit, brought by George W. Merrill against Aaron Downs and Simon E. Downs, partners, under the firm of A. & S. E. Downs, to recover the sum of forty-five dollars, alleged in different counts to be money paid for the defendants at their request, money lent to them, and money had and received by them to the plaintiff’s use. It appeared in evidence that the plaintiff lived at Milton, in this county, and the defendants near Boston, Mass.

<p>Where service was made upon the principal defendant in one county, and an attested copy of the writ sent to a sheriff o£ another, who left it with the trustee, and made a return of what he had done upon another copy, upon motion for leave to amend this return, by indorsing it upon the original writ — Held, that the writ, not having been committed to him, the officer had no authority to make any service, and the motion rwas denied.</p>

Assumpsit on an account annexed, for tbe balance due for certain labor and services done upon the plaintiff’s land, after deducting certain credits for the produce of the land.

Assumpsit, Thomas Horn against John C. Batchelder, on an account annexed for timber, for a barn. The parties agreed that the timber was delivered upon a contract by the plaintiff to furnish and deliver the timber for the frame, and certain other materials for the defendant’s barn, but they disagreed as to the date and terms of the contract.

This case was heard and decided July term, 1859, and is reported in 88 N. H. 459. then moved that their costs should be paid out of the fund. He contended that a town, as trustee of a charitable fund, is entitled to indemnity out of the fund; Dan. Ch. Pr., 1517, 1554, 1584; and that the plaintiffs should not be required to pay costs in a case like this ; at least, not to the trustee, who can be reimbursed out of the fund. Dan.

<p>Case, for deceit in tbe sale of a farm. The evidence tended to show that on tbe 18th day of November, A. D. 1856, the parties met, and. negotiations for the sale and purchase of the farm were had; that it was then agreed orally between the parties that the plaintiff should buy, and the defendant should sell the farm; that the plaintiff' should pay $500 on the first day of April, then next, and should pay the balance of $2,000 in annual instalments of $100 each, which last payment should be secured by mortgage of the farm, and that the plaintiff should have possession, and the deeds and other writings be delivered on the payment of said $50Q on said.first day of April. Accordingly, a deed of the farm, from the defendant to the plaintiff', was executed; also, a mortgage from the plaintiff to the defendant, of the same premises, a note for |2,000 ; also a note for $400, payable on the first day of April, A. N. 1857 ; and the plaintiff then paid $100 in money, for which he took the defendant’s receipt, in the following form: viz.,</p> <p>“ November 18th, 1856.</p> <p>Received of Alden Pettigrew, one hundred dollars, in part payment for a farm this day deeded to said Petti-grew. (Signed) Exoch P. Cjtellis.”</p> <p>It was finally agreed that the deed, the mortgage and the notes, should be sealed up in a package, and deposited in the hands of Mr. Breck,' town-clerk of Cornish, and no paper should be delivered to either party without the consent of both.</p> <p>The evidence was conflicting as to the knowledge of the defendant, on the said 18th day of November, of the falsehood of the representations complained of in the declaration, but the defendant admitted that he did have the knowledge that the farm did not hold out in quantity before the first day of April, when, with the consent of both parties, said $400 note was paid and the other papers were duly delivered.</p> <p>The plaintiff’s counsel requested the court to charge the jury that if the deeds and other writings were deposIted with the town-clerk, not to be delivered to either party without the consent of both, the bargain would not be complete till the writings were so delivered, and that if the defendant, at any time before the writings were so delivered, knew that the farm was materially less than he had represented, and did not communicate the fact to the plamtiff, the plaintiff’s action would be maintained in that particular. The court declined so to instruct the jury, but did instruct the jury that the plaintiff, to recover in this action, must show that the defendant made material representations or statements concerning the farm, the number of acres embraced in the whole of it, or in the meadow, or as to the price it would bring, upon which the plaintiff was induced to rely when he made the purchase and agreed to the terms of the same, on or before the 18th of November, 1856; that these statements or representations were false, and that the defendant knew them to be so, when he made them; and that if either of the representations of the defendant were false, and the defendant knew it to be so, the plaintiff’s action could be maintained; that in consequence of the plaintiff’s placing confidence and reliance upon such false or fraudulent representations of the defendant, he had suffered actual damage; that it was competent for the jury to consider the evidence in relation to the deposit of the deeds and writings with the town-clerk, and to inquire whether the purpose was not to secure the payment of the $400 note to the defendant, it not being embraced in the deed of mortgage from the plaintiff; that the consideration and terms of the deeds and the whole contract were so far settled and closed, on the 18th of November, as not to bind the defendant in this action unless he then knew his representations to be false or fraudulent. The jury, having returned their verdict for the defendant, the plaintiff excepted to the ruling of the court, moved to set aside the verdict and for a new trial.</p> <p>It is plain tbat, by tbe statute of frauds, no action could be maintained on tbe contract for the sale of tbe farm, until tbe writings were delivered. It is equally clear, tbat tbe last and final arrangement of the parties left tbe delivery of the deeds dependent on tbe consent of both parties. Tbe legal effect of tbat arrangement was matter of construction for the court, and not for tbe jury. Tbe contract declared on was that for the sale and purchase of tbe farm, which could not be complete so long as either party should withold bis consent.</p> <p>Tbe instructions of tbe court were correct, and tbe suit could not be maintained, unless tbe defendant knew that tbe representation^were false and fraudulent at tbe time they were made. Hanson v. Edgerly, 29 N. II. 343; Weeks v. Burton, 7 Vt. 67; Tryon v. Whümarsh, 1 Met. 1; Mahurin v. Harding, 28 N. II. 128 ; Easley v. Freeman, 3 T. R. 51; Lord v. Goddard, 13 How. 198.</p> <p>The instructions given were quite as favorable to tbe plaintiff as tbe law would justify, and tbe court rightfully declined to give tbe instructions asked for by tbe plaintiff’s counsel.</p> <p>The negotiations between the parties were closed on tbe 18th day of November, and it only remained for tbe plaintiff to pay $400, and tbe pai'ties to exchange papers. For all other purposes tbe bargain was closed, and was so treated by tbe parties. If tbe right existed to open negotiations anew, on tbe first day of April, it is enough tbat neither party chose to do it, or was bound to do it. Representations believed to be true, at tbe time they are made, do n'ot become fraudulent by means of information subsequently obtained.</p>

Wbit of Entry. The ease was referred to a commissioner who reported the following facts : April 30, 1845, Britton, one of the defendants, who then owned the demanded premises, mortgaged them to the Provident Institution for Savings, to secure his note for $450. April 14,1851, the equity of redemption was sold on execution to one Allen, for $90. September 27,1851, Britton conveyed the premises, with other lands, to the plaintiff and one Williams, by deed of quitclaim.

Trover, by Wheaton C. Jillson against Sanford Wilbur and Arvilla Wilbur, his wife, to recover the value of a watch, alleged in one count to have been converted by said Arvilla, wife of said Sanford, on the 20th of September, 1854, and in the second count on the 1st day of January, 1859. Plea — the general issue. The writ was dated February 25, 1859.

TROVER. The plaintiff claims the value of certain personal property: viz., One pair of oxen, two cows, four yearlings, three calves, and thirty tons of bay, all the property of the plaintiff, and which the defendant is charged with wrongfully taking and converting to his own use, on the 2d day of October, 1858. Plea, the general issue.

<p>A witness, who is subpoenaed, and in good faith attends court as a witness, without being paid, may maintain an action against the party summoning him, for his legal fees for travel and attendance, as fixed by statute; and he is equally entitled to recover such fees if he attend and is examined, without being summoned, or if he is summoned and attend, without being examined.</p> <p>A witness who is summoned to attend court and paid for. his travel and one day’s attendance, or who is summoned and attends without being paid, if he remain in attendance in good faith until the cause is tried or otherwise disposed of, without notice that his attendance is no longer required, is entitled to his fees for such attendance from the party summoning him, and, if they be not paid, may maintain an action to recover them.</p> <p>A witness who is summoned and paid his fees while residing in this State, but who afterward removes to another State, is bound to attend court in pursuance of the summons, unless, before removing, ho shall give notice of his intention to leave, and he relieved from his obligation, or is subsequently released therefrom; and if he do attend, in good faith, he is entitled to his fees for such attendance and for the additional travel from the other State.</p>

<p>Case, for deceit in an exchange of horses. The plaintiff alleged that he was induced to exchange his mare for a colt of the defendant, and thirty-five dollars boot, by certain false and fradulent representations of the defendant, as to the health of the colt. To enable the jury to judge of the value of the colt, if he had been in the state of health he was represented to be in, it became material for the plaintiff to show the value of the mare he gave in exchange. For this purpose evidence was introduced on both sides, describing her age, appearance and qualities. Beside this, the plaintiff offered to show that he obtained the mare by an exchange for another horse, and to show the age, appearance and qualities of that horse, and that the purchaser, two or three months after, sold that horse for ninety-two dollars. He also offered evidence that the defendant swapped the same mare for another horse, and to show the age, appearance and qualities of the latter, and that the defendant called him worth one hundred dollars. He also offered evidence of the prices at which other horses of similar age and description were sold a year after the exchange in controversy. To all this evidence the defendant objected, but it was admitted, and the defendant excepted.</p> <p>A witness was introduced by the plaintiff and examined. After cross-examination by the defendant, in which he testified somewhat favorably to the defendant, the plaintiff proposed to ask him if he was a relative of the defendant; the defendant objected to the question, and the Court allowed it to be put and answered, and the defendant excepted.</p> <p>The jury found a verdict for the plaintiff, which the defendant moved to set aside, on account of said exceptions. ■</p>

Case, for damages sustained by the wife, in consequence of a defect in a highway in Plainfield. Upon the trial, the evidence tended to prove that at the time of the accident, and for perhaps a day or two before, there was a small hole in the traveled part of the road, near a small bridge, or water-course.

Trespass, for assault and battery. The defendant offered his wife as a witness for himself, but the court excluded her. One Farr had testified for the plaintiff, and the defendant had introduced several witnesses to impeach him, as showing that his general reputation for truth was bad.

<p>This was an action of trover for a gold watch, chain and seal, alleged in the first count to have been the property of Stephen B. Gilman, deceased, in his life time, of whose estate the plaintiff, Elon Cutting, is administrator, and in a second count to be the property of said administrator.</p> <p>The plaintiff’s evidence tended to prove that the watch, chain and seal were the property of the deceased at his decease; that the defendant, Jemima P. Gilman, had them in her possession, and refused to deliver them to the plaintiff, on his demand for them. The defendant claimed to be the owner of the property, by virtue of a gift alleged to be made to her by the deceased, a few hours before his decease. Her evidence tended to prove that, when the deceased was taken sick, a week or more before his death, he wore the watch, chain and seal, about his person. "When his clothes were taken off, the watch was taken by his father, and hung up on a nail in the sitting-room, adjoining his bed-room, where it continued to hang until after his decease. Not long after the deceased took his bed, he told the defendant, his only sister, that he wished her to take care of his watch, and keep it wound up, and told her to get the key from his vest pocket, and she did so. The defendant accordingly wound up the watch, from day to day, but allowed it to hang where her father had placed it.</p> <p>Benjamin Gilman, the father of the deceased and of the defendant, testified that his son had made his home at his house, and his sister had done his washing and had the care of his clothes for most of the time for two years before his death; that on the morning of his son’s death, his daughter came into the bed-room where he was with his son, and told her brother she felt as if she wanted something to remember him by, and should like his watch, and he told her she might have it. The watch was then hanging in the sitting-room, where it had hung since the commencement of his illness, and it so remained till after his decease. The defendant herself, and her brother, testified substantially to the same facts.</p> <p>The court held that, in point of law, the evidence did not prove a delivery of the watch by the deceased to the defendant, such as is required by law do make a valid donatio causa mortis, to which opinion of the court the defendant excepted.</p> <p>The jury returned a verdict for the plaintiff, and the defendant moved to have the same set aside, by reason of said exception.</p> <p>claimed that if delivery accompanied or followed the gift, it was sufficient; that the defendant had the possession of the property before the gift, and had the right to control it as against every body but th'e deceased, and that the gift passed the property to her, and that thereby her possession became exclusive, which were sufficient; citing Smith v. Smith, 2 Str. 955.</p> <p>Was there such a delivery of the watch by the deceased to the defendant as is required by law to make a valid gift causa mortis? The case finds that the defendant never had any possession of the watch except as the servant of her brother, Stephen B. Gilman. In fact it was never delivered to her at all. She was only requested “to take care of the watch and keep it wound up.” It is well settled that delivery is essential, both at law and in equity, to the validity of a parol gift of a chattel, and without actual delivery the title does not pass. A mere intention or naked promise to give, without some act to pass the property, is no gift. 2 Kent Com. 438, 439, 445, 446; Sanborn v. Goodhue, 18 N. H. 56; Marston v. Marston, 21 N. H. 491. The taking of the watch-key from the vest pocket of the deceased constitutes no delivery of the watch to the defendant. It being capable of actual delivery, such delivery was indispensable. Symbolical delivery, in this case, is not tantamount to actual delivery, and is not sufficient. Here was but a naked promise — a mere intention (and that induced by the defendant) to give, by which nothing passed, and courts of justice will not interfere to give effect to a gift left inchoate and imperfect. 2 Kent Com. 488. The watch was hanging in the sitting-room, where it had hung during the sickness of the deceased. It was not presented to the defendant. It remained in its place till after the death of her brother. "Will it be argued that the defendant was then in the possession of the watch, and therefore no delivery was necessary ? That the promise had relation back to the time when she took possession of the key ? If so, we reply, that the defendant was acting for the deceased; that she had no legal possession or claim which she could enforce against him. He could have disposed of the watch at any time before his death. He had the command and dominion of the property. His subsequent promise to the defendant could have no tendency to alter or enlarge her rights in said property, which she enjoyed by virtue of the care she was taking of it. At the time the promise is alleged to have been made, the watch was susceptible of actual delivery; was not then in the possession of the defendant; -was not worn upon her person; was where her father had put it, and was not, in the lifetime of the deceased, taken down. It is the policy of the law to examine with care the circumstances attending gifts of this character. Justinian required them to be executed in the presence of five witnesses. Although we may not have adopted such precaution, still, great care is observed in their execution by our courts. Actual delivery of the chattel given, is always insisted on to constitute a valid gift. ¡Such delivery, we submit, was not made by the deceased to the defendant.</p>

<p>IN Equity. The bill stated that ou the 9th of February, 1856, the plaintiff, Charles Rogers, owing the defendant, Cyrus M. Mitchell, $1000, gave his note for that sum, payable in three years, and mortgaged to him 1250 acres of land in Waterville, and his homestead farm in Plymouth and Bridgewater, to secure that note, payable in three years.</p> <p>It was at the same time agreed in writing that Mitchell should have his choice of half the timber land in Wa-terville deeded to him, on giving up the note within three years. If he did not so choose, Rogers should have the privilege of selling the mortgaged premises for one year after three years, to pay tbe note; that Mitchell should have half the gain on the Waterville land over $>20005 until the note was paid : that Rogers might cut and haul off timber from the Waterville land, on the half that Mitchell did not elect for himself. The note, mortgage and agreement were made at the same time, bore the same date, and constituted one entire agreement. Mitchell had not elected to take the timber land in Waterville, nor offered to give up the note, or take a deed, though Rogers had been always ready to make one ; but on the 10th of March, 1859, brought suits to foreclose the mortgage and collect the note, which he was pressing to judgment. The property was worth more than the amount of the debt, and Rogers desired to sell it. He claimed that the agreement gave him a further time of one year after the expiration of the three years limited in the note and mortgage. Mitchell knew this, and was in equity estopped from foreclosing in the manner aforesaid.</p> <p>The bill prayed an answer, injunction, and further relief.</p> <p>The answer admitted the allegations of the bill, except in the particulars following. The defendant denied that the note, mortgage and agreement were so made and executed as to constitute one agreementdenied that Rogers understood, or that it was true that Mitchell, by the agreement, gave a further time of one year, after the expiration of the three years mentioned in the note and mortgage ; denied that he understood or knew that by the agreement he gave Rogers such further time, or that he was in equity estopped from foreclosing, or that the agreement in any way affected his rights under the mortgage. He said that at the time of making the note, &c., and since, he understood he did not give Rogers an absolute right to sell said timber land in Waterville, but only gave him a privilege to negotiate a sale, if he could, for enough to pay the mortgage debt; and that he, when such negotiation was effected, was to ratify the sale and give up the note and mortgage, on payment of his debt, and that he was ready, and always had been, to do so on payment of his debt. He denied that by the agreement he extended the time of payment of the note, or intended to do so, or-to deprive himself of his right to bring a suit to foreclose and take the profits of the land.</p> <p>He denied that the property Rogers was entitled to sell was worth the amount of the debt, or more, or that Rogers could sell it for a sum sufficient to pay said debt. He averred that at the time of executing said note, &c., Rogers represented the Waterville land to be worth two thousand dollars; that it could readily be sold for that sum ; that he was induced to execute the agreement by those representations, but that it was not worth, and could not be sold for that sum, then or since, or for enough to pay the mortgage debt. Those representations were untrue, and he was deceived by them. The said timber land then and since had not been worth $500. Rogers’ title to it was uncertain and disputed, and since that time a large part of it had been sold for taxes, and his security was not more than enough to pay his mortgage, if he could immediately receive the rents and profits. He said there was on said Rogers’ homestead farm a mortgage for $1000, and Rogers told him he should apply the $1000, loaned by him, to pay off said prior mortgage, and he loaned it relying on said promise; but the money was not so applied, and the'mortgage was still outstanding.</p>

Petition of John Jewell, for increase of damages, alleged to have been sustained by Mm by reason of tbe laying out of a new highway over his lands in Holderness, by the selectmen of that town, on the 13th of December, 1856. The petition alleged that said highway was laid out by said selectmen on the written application of James S. Piper and-Cos, describing the whole’ highway so laid out.

<p>Assumpsit, upon a note dated June 1,1858, for $710.70, signed by the defendants, James Clement & Co., and payable to the order of the plaintiffs, Martin L. Hall & Co., with a count for money had and received, $800, and a count for goods, &c., sold and delivered, of which a specification was furnished, amounting to $2063.32, on which payments are credited to the amount of $1,352.62, leaving a balance of $710.70.</p> <p>The case was referred to an auditor, who found that all the goods charged were sold and delivered by the plaintiffs to the defendants, at the times and prices charged, and that certain of the items so charged were for intoxicating liquors, sold to the defendants at Boston, in Massachusetts, without any license, and in violation of the laws of that State. The plaintiffs offered evidence that the defendants, at several times before the giving of the note declared on, settled their accounts with the plaintiffs, and made an application of the sums then paid, in whole or in part, to these items for liquor. The evidence was objected to, but admitted.</p> <p>It then appeared, that from the 19th of September, 1855, when the account commenced, to May 5, 1856, when the parties settled the account, the amount of sales was $538.28, of which $124.15 was for spirit, and the payments were $405, leaving a balance of $133.22, for which the defendants gave their note. From that date to January 1, 1857, the next settlement, the sales were $794.91, including the note, of which $358.92 was for spirit, and the payments $350; and a note was given for the balance, of $344.91, all of which was for spirit. The sales to the next settlement, together with the last note, October 23, 1857, were $896.33, of which $87.22 was for spirit, the payments credited $200, and a note given for the balance, $696.33. The sales afterward amounted to $281.73, and the payments to $275, and the note in suit, for $710.70, was given for the balance and interest. Though dated at Boston, it was made at Concord. None of the sales, after March 20,1857, were for spirit.</p> <p>The defendants claimed that the plaintiffs could recover only the difference between the amount of the sales, deducting all sales of liquors, and the whole payments. The auditor found the whole sales $2,017.73, and the amount of liquor sold $570.29, the difference being $1,447.44 ; the whole payments $1,352.62, the balance being $94.82, with interest to the date of the writ. But the plaintiffs claimed to recover the whole balance of their account, and at any rate that whatever payments had been applied in their settlements in discharge of the liquor account, should be allowed them. And the auditor found that at the settlement of January 1, 1857, the payments credited exceeded the charges, exclusive of liquor, by $13.16, upon which interest to the date of the writ is $10.84.</p> <p>The plaintiffs also claimed that a payment, made by the defendants on the 18th of February, 1857, of $100, should be applied to pay for the goods delivered between January 1st and that date; and the auditor found that the amount of all the goods, except liquors, so sold, was $82.20, leaving $17.80 to be applied on the liquor account, upon which the interest to the date of the writ is $1.20. The questions arising on the report were reserved for decision at the law term, and such judgment is to be entered as the court should order.</p>

<p>Assumpsit, brought by Horace B. Gale, on a policy of insurance issued by the defendants, the Belknap County Mutual Fire-Insurance Company, on tbe plaintiff's dwelling bouse, &c.', dated January 26, 1857, for six years. By the terms of the policy the plaintiff’s application is made part of it, and the insurance is made subject to the provisions of the act of incorporation and by-laws of the company annexed to it. In the application, the applicant agrees to be bound by said act and by-laws.</p> <p>The 15th section of the act of incorporation is as follows : “ If insurance on any house or building shall be and subsist in said company, and in any other office, or from or by any other person or persons, at the same time, the insurance made in and by said company shall be deemed and become void, unless such double insurance subsists with the consent of the directors, signified by indorsement on the back of the policy, signed by the president and secretary.”</p> <p>In the 22d article of the by-laws is the following provision : “ All policies, which may issue from this company; to cover property previously insured, shall be void unless notice of such previous insurance shall be given in the application; and when a subsequent insurance shall be made on property insured by this company, without the consent of the directors in writing, the policy issued by this company shall be thereby annulled.”</p> <p>The application was made at the plaintiff’s request, by J. J. Barrett, the defendant’s agent, in the fall of 1856, signed by the plaintiff, and left in said Barrett’s possession, but to be sent to the office when the plaintiff should . direct it by letter. January 18, 1857, the plaintiff wrote to Barrett to send the application, and Barrett immediately forwarded it, and it was approved by the directors, and a policy issued and sent to Barrett.</p> <p>On the 25th of February, 1857, the plaintiff, not having heard from Barrett, and not knowing that a policy had been sent to him, and thinking that Barrett had omitted to make his application to this company, applied to one Parker, agent of the Farmers’ Mutual Fire-Insurance Company, at G-ilmanton; told him what bad been done between himself and Barrett; that he had not received a policy, and was afraid Barrett had not received his letter, and had done nothing, and he wished to procure insurance in the Gilmanton company. Parker made out an application for insurance on the’ same property, which was signed and the expense paid by the plaintiff, and forwarded by Parker to the Gilmanton office, and a policy issued on it, dated March 2, 1857, which was sent to Parker.</p> <p>The 14th section of the act of incorporation of the Gil-manton company is the same as the 15th of the act of the Belknap company, before stated.</p> <p>March 7, 1857, the plaintiff received from Barrett the Belknap company’s policy, and paid the expense of it; on the 10th, the Gilmanton company’s policy was received by Parker, who was piostmaster, and handed to the plaintiff, who was present.</p> <p>On the 17th of said March the property was destroyed by fire, and the plaintiff immediately notified the defendants of the loss, without referring to any other insurance. No notice was given to the Gilmanton company, nor claim made on them. Neither Barrett, nor any officer of the Belknap) company, had any notice or knowledge of the insurance in the Gilmanton compjany, before the fire. And neither the Gilmanton company nor any officer of it had notice or knowledge of the insurance in the Belknap company prior to the fire, exceprt so far as the notice to Parkei’, before stated, is in law notice to, and knowledge by, said company.</p> <p>The Gilmanton policy has not been discharged. The fire was accidental; and the parties agree that the decision shall he the same as if the jury had found that the plaintiff had no intention to defraud either, company. But the defendants insist that this question is not material or competent to be submitted to a jury.</p> <p>It is agreed that the plaintiff would testify, if admitted as a witness, that, from the first, his preference was to have his insurance in the Belknap company; that when he received his policy in that company he knew of the foregoing provisions of their charter and by-laws, and that he could hold under only one policy, intending then and ever after to hold under it, and not under the Gilmanton policy; that he did not communicate this intention to any one before the fire, though he did state to several persons during the fire, that he intended to keep the Belknap policy and return the other; that he did not receive the Gilmanton policy intending to hold under it, but always intended to return it the first opportunity; that the reason he did not offer to return it to Parker, when he received it in the post-office, was that there was a crowd in the office at the time, and Parker was busy about the duties of his office and store, although he saw that it was the Gilmanton policy; that he waited, in vain, some time in the office, for the purpose of getting an opportunity to return it, and reclaim the money he had paid for it; and that he went twice from his house that week before the fire, to see Parker and return the policy, taking it with him for that purpose, but did not find him at home, and so the policy remained in his hands at the fire.</p> <p>It was agreed the jury would find said testimony,'if admitted, to be true, and that the court may so regard it, if they find the witness competent, and the testimony admissible, which the defendants deny; and that judgment shall be rendered for the plaintiff, if the policy in suit is not affected by the other, or the case sent to the jury, as the court shall direct.</p>

<p>Either party is entitled, if he insist upon it, to have a witness state fully upon the stand all the details of his testimony, and the court cannot properly limit the direct examination of a witness to the single inquiry whether or not he has heard the testimony of a preceding witness, and concurs therein.</p> <p>A state of relations between parties, once proved to exist, is presumed to continue, until some change is shown to have occurred.</p> <p>The mere mating out of an account, several months after the date of the alleged indebtedness, has no tendency to show its correctness.</p> <p>When a submission, by parol or in writing, is made by private parties to a given number of persons, without any express authority given or to be inferred from the manner or circumstances of the submission, that a smaller number may decide, an awai’d or decision will be void, unless made by all of them.</p>

FOREIGN Attachment. The defendants were described in the writ as “formerly partners, doing business under the name and style of J. Ii. & H. Q. Thompson.” The officer who served the writ returned that he summoned said John H. Thompson by leaving at his last and usual place of abode a true and attested copy of the writ.

Assumpsit, for f 8, money had and received. The cause was tried by the court at the November term, 1859, when the facts were found to be, that the plaintiff, being at the Crawford House, at tbe White Mountains, a telegraphic despatch was received at Plymouth for him, and carried by a stage driver to the Profile House, and from there to the plaintiff by the defendant, in company with another person; that the plaintiff asked the defendant how much he was to pay him for…

<p>In equity, time is not of the essence of a contract, unless clearly made so by its terms or the understanding of the parties.</p> <p>Where a hill contains a prayer for specific and also for general relief, the plaintiff may have other specific relief, provided it he consistent with the case made by the bill; but he cannot desert the relief prayed, and, under the prayer for general relief, ask and obtain specific relief of another description, unless the facts and circumstances charged or implied in the hill will maintain it.</p> <p>"Where the original bill asked for the specific performance of a contract to convey land, alleging performance of the contract by the plaintiff in paying the stipulated price, but without any averment of the time, place and circumstances of the payment, or of any settlement between the parties, and sought for a discovery by the defendant of all the circumstances relating to the alleged payment — Seld, that an amendment was admissible, asking that an account might be taken, and praying that, if any balance proved to be still due, the plaintiff might be permitted to pay it; and that the relief originally sought might be granted, with the modification that the plaintiff first pay the balance found due upon such . account.</p>

<p>The granting of an appeal hy a justice of the peace in a criminal cause, without sureties being furnished, is an irregularity, which the court above may correct.</p> <p>And, on motion, if seasonably made, the appeal will he dismissed as in civil causes, leaving the judgment in the court below in full force, as if no appeal had been granted.</p>

In this case the town of Campton petitioned for leave to discontinue a highway existing by prescription. . Por the purpose of detennining the law, the court ordered the petition to be dismissed, and, upon the exception of the town, the questions were reserved for the determination of the whole court.

Assumpsit, to recover $115.80, for relief afforded to ' paupers having their settlement in the defendant town, alleged to have been furnished at the time of the service of notice upon the defendants, and also $88.15, for relief alleged to have been furnished within one year from and after the day on which said notice was served.

The questions arise upon the pleadings; and the declaration is as follows : “ In a plea of debt, for that whereas, to wit, September 22, 1849, Samuel S. Metcalf, late of Orford, in said county, now deceased, then in full life, to wit: at said Orford, made his last will and testament, in writing, under his hand and seal of that date, executed in due form, and thereby ordered that his just debts and funeral charges be paid as soon as might be after his decease, and by his said…

This action was brought by Eleazer Smith against A. K. Foster, principal defendant, and Edward Webster trustee. The trustee disclosed that he was indebted to the defendant by a negotiable promissory note, made and payable in this* State, dated June 26, 1858. The writ was served upon the trustee June 28, 1858.

This is a petition for a new highway in Orford, which the selectmen of Orford, upon an application to them for that purpose, refused to lay out. The petition to this court is signed by most of the signers of the petition to the selectmen; but some of those who signed the petition to the selectmen did not sign the petition to this court, and some of those who signed the petition to the court did not sign the petition to the selectmen.

AssuMPSiT, brought by James B. Swain against Charles Cheney, upon account annexed for drawing lumber. The plaintiff relied upon an express verbal contract to draw the lumber from a mill in Dorchester to a depot in Eum-ney, for one dollar and fifty cents per thousand.

<p>Scire Facias upon a recognizance. The defendants, at a previous term of this court, moved that the scire facias be dismissed for want of jurisdiction; the question upon which motion being transferred to the law term of said court, it was ordered that the scire facias be dismissed; and now the defendants move that their costs be allowed them against the State.</p> <p>The court ruled that the motion should prevail, and that costs should be allowed the defendants; to which the solicitor excepted; and the questions of law arising upon the case were reserved, and assigned to the law term.</p>

<p>Ox the first day of the November term, 1860, the plaintiff filed the deposition of one' Amos Brown, in an envelope directed to the court, aud notified the defendant thereof. There was no caption with said deposition, but after the deponent’s signature was the following:</p> <p>“ Teekalet, Kitsop County, 'Washington Territory, September 20, 1859. Personally appeared the above named Amos Brown, and made oath that the above affidavit by him subscribed is true. — Before me,</p> <p>Geo. Wells, Justice of the Peace.”</p> <p>Annexed to said deposition was a copy of a notice to take said deposition, and an affidavit of service upon the defendant.</p> <p>The defendant, within the time required by the 25th rule of court, filed exceptions to said deposition; that the deponent had not taken the oath required by statute, and that there was no caption stating what the statute required.</p> <p>At an adjourned term, after said action was continued, .the plaintiff produced a paper of which the following is a copy:</p> <p>“Territory of Washington, Kitsop County ss.</p> <p>Personally appearing the within named Amos Brown, at the post-office in Teekalet, Kitsop County, in Washington Territory, in said county, on the 20th day of September, 1859, at ten o’clock in the forenoon, made solemn oath that the within deposition, by him subscribed, contains the truth, the whole truth, and nothing but the truth, relative to the cause for which it was taken. — Taken at the request of Alson L. Brown, of Campton, N. H., Grafton county, to be used at the Supreme Judicial Court to be held at Plymouth, in and for said county of Grafton, Eastern Judicial District, on the third Tuesday of November next, 1859, in a plea wherein Alson L. Brown, of Camp-ton, is plaintiff, and Joseph Clark is defendant. The said Joseph Clark, as appears by the accompanying evidence of notice, being duly notified, was not present, and did not object. The deponent living more than ten miles from the place of trial, is the cause of this caption. — Before me, this twentieth day of September, 1859.</p> <p>G-eo. Wells, Justice of the Peace.</p> <p>Justice’s fees, &e. &c., taxed, &c.”</p> <p>The court being satisfied that said paper was signed by the justice who took said deposition, a few days after he had sent the deposition by mail; that he intended said paper to be the caption of said deposition, and to be annexed to said deposition ; that he did not annex it to said deposition through accident and mistake; that, on discov-covering his mistake, a few days after he had sent off the deposition, he signed said paper and sent it in an envelope directed to the plaintiff’s counsel; ordered, that said paper be filed and annexed to said deposition as the caption thereof. The defendant alleged exceptions to said order, and presented his bill thereof, which was allowed.</p> <p>referred to the Comp. Stat., ch. 200, secs. 19, 20; Currier v. Railroad, 31 N. H. 221; Court Buies 26.</p> <p>referred to Bev. Stat., ch. 188, secs. 20, 21, 23; Powers v. Shepherd, 21 N. H. 60; Currier v. Railroad, 31 N. H. 210; Fabyan v. Adams, 15 N. H. 371; Bradstreet v. Baldwin, 11 Mass. 229 ; Dame v. Mace, 37 N. H. 533.</p>

Trespass, by Jonathan K. Kelsea against Milo E. Haines, for carrying away the plaintiff’s lumber. Plea, not guilty, with a brief statement that the defendant, being a deputy-sheriff, took the lumber as the property of J. L. Clark, on writs in favor of Webster and Blaisdell against said Clark, and, at the time of the taking, the lumber was the property of Clark, and the defendant afterward sold and applied the same on executions issued on judgments recovered in those suits.

Assumpsit, upon tbe following account: 1857. C. H. Brainard to H. C. H. Bliss, Dr. May 27, To 4 pipe Cog. brandy, 204 gallons, at $5 per gallon, $102.50 “ paid freight, .56 “ “ carting, ' .38 duly 15, To 1 bbl. old Bourbon whisky, 411- gallons, at $2 per gallon, 83.00 “ 1 bbl. St. George & H. rum, 40 gallons, at $1.25 per gallon, 50.00 “ 10 gallons brown Sherry wine, at $2, 20.00 “ barrel, $1; keg, $1; carting, .75, 2.75 “ paid freight, 2.82 $262.01 Plea, the general issue.

<p>A petition for naturalization, under the first section of the act of March 26, 1824, must allege it to have heen the bonú, fide intention of the applicant, for three years next preceding his application, to become a citizen of the United States; and such allegation must he proved to the satisfaction of the court.</p> <p>It is not necessary, in a petition for naturalization under the act of April 14, 1802, for the applicant to allege or prove that he has resided within the State or Territory where the application is made, "during the year next preceding his application.</p>

<p>Weit op ENTRY, to recover lot number nineteen in tbe first range in Jefferson. Plea, the general issue. The defendant claimed this lot under a collector’s deed and sale for taxes, and among other things offered in evidence the non-resident list of Jefferson for 1851, which was made out and delivered to the collector by the selectmen of that town. It begins thus: “ List of non-resident inventory for 1852.” Then follows a list of the non-resident lands in Jefferson, and among them is the lot in suit; the numbers of the lots, ranges, acres, and the valuation and taxes all being properly designated. The list is contained in a small memorandum book, being written on six pages thereof. After one blank page, following the list, is the warrant for the collection of taxes, which is in the usual form, signed by the selectmen, directed to the collector of said town, commanding him “to levy and collect of the several persons named in the non-resident list herewith committed to you the taxes in said list set against their names and numbers of lots, the same being a list of the assessment of the State, county, town, and school taxes, and school-house taxes, for the year 1852, upon the unimproved and improved lands of non-residents in the town of Jefferson, by the undersigned selectmen of said town.”</p> <p>It was agreed that if the list aforesaid was not sufficiently signed, within the meaning of the statute, then judgment should be rendered for the plaintiff; otherwise the case should be discharged.</p>

Teespass, for seven thousand feet of hard wood lumber, the property of the plaintiff, and alleged to have been taken, carried away, and converted to their own use, by the defendants, on the 15th day of December, 1858, and on divers other days between that time and the date of the plaintiff’s writ, which was April 8, 1859.

Trover, for two horses, of the value of §100 eaeb. Plea, the general issue.

Teovee, for a promissory note, which the plaintiffs alleged to have been signed by them, dated October fifth, 1855, wherein the plaintiffs promised to pay the defendant, or bearer, one hundred and fourteen dollars, in one year from date, with interest annually, and to have been converted by the defendant.

TRESPASS quare clausum,. Tbe action bad been referred to a commissioner, who reported that the plaintiff, at the date of the alleged trespass, was owner of the tract of land described in his writ, being the whole of lot No. 52 in the second division of eighty acre lots in Warner, in this county, excepting twenty acres from off the east end of the same, which had been conveyed by the plaintiff’s grantors to one P. Osgood, whose title the defendants, or one of them, had ; and…

<p>This was a writ of entry to foreclose a mortgage. At tbe last February term the action was continued, upon condition that tbe plaintiff should pay tbe costs of tbe term, and tax none. Tbe costs were not paid. At tbe present term, it appearing that since tbe last term tbe plaintiff’s title to tbe demanded premises bad failed, by reason of tbe payment of tbe mortgage debt in satisfaction of an execution issuing upon a judgment therefor, in Grafton county, tbe court directed judgment for tbe defendant for tbe costs of tbe February term, according to the order of tbe court at that term, and for the costs .of tbe present term since tbe plaintiff’s title wholly failed; to which direction tbe plaintiff excepted; and judgment having been rendered agreeably to said direction, tbe plaintiff filed this bill of exceptions, which was allowed by tbe court.</p>

IN an action of assumpsit for labor and services, the defendant claimed that the whole of the plaintiff’s claim bad been settled, by setting off’ against it the services of the defendant for him in certain divorce suits. The defendant was himself a witness, and testified in support of his own claim, and to a settlement between the parties.

Assumpsit, to recover tbe plaintiff’s fees as a justice of tbe peace. Tbe defendant, as deputy sheriff, arrested three debtors upon an execution, on which was indorsed an affidavit that they concealed their property, and at their request carried them before two justices of the peace and quorum, of whom the plaintiff was one, in order that they might be discharged; the creditor objecting.

<p>Case, for damages resulting to the plaintiff from alleged defects in a public highway in Henniker.</p> <p>On trial, it appeared that on the afternoon of July 28, 1858, Hr. Jonas Ball hired a horse and carriage at Hills-borough Bridge, to go to the village of Henniker, where he arrived about sunset,' taking the plaintiff and his daughter with him. Dr. Ball stopped at the hotel in Henniker ; while the plaintiff and his daughter started with the horse and carriage to go to the plaintiff’s mother’s, about half a mile distant; and on the way thither, the plaintiff driving the horse at the time, the accident occurred.</p> <p>The defendants offered some evidence tending to show that the horse which the plaintiff was driving was an unsuitable animal, in the habit of stopping and backing, and that Hr. Ball on one occasion said she was a “ homely, ugly horse,” and contended that the injury to the plaintiff resulted in part at least from the vicious character of the horse she was driving. Hr. Ball, the owner of the horse at the time, and other witnesses, testified that, so far as they knew or believed, the horse was perfectly kind, gentle, and free from all vicious habits, and that a child eight years of age had been accustomed to drive it.</p> <p>The court, among other things, instructed the jury, that a traveller upon a public highway was bound to exercise ordinary care and prudence in providing him or herself with a suitable horse, carriage and harness, but nothing more; and if a defect in the horse, carriage or harness contributed to the accident resulting in damage arising from a defect in a highway, the traveller was not thereby precluded from recovering, if tbe defect were unknown to him or her, and he or she were in no fault for not knowing it; that in this case it was immaterial what knowledge Dr. Ball had of the defect in the horse, if one existed, unless that knowledge were communicated to the plaintiff, or she were in fault for not acquiring it; that if the plaintiff exercised ordinary care and prudence in providing herself with a horse, carriage and harness, and had no knowledge of any defect in the horse, if one existed, and were in no fault for not knowing it, she was entitled to recover, even although a defect in the horse might have contributed to the accident.</p> <p>The defendants also contended that the unskillfulness or want of care of the plaintiff in the management of the horse contributed to the accident; and upon this point the court instructed the jury, that if the plaintiff’ were guilty of any fault in the management of the horse, any want of ordinary care, skill and prudence in driving or controlling the horse, which contributed to the accident, without which the accident would not have occurred, notwithstanding the defect in the highway, she could not recover; because she was bound to exercise ordinai’y care, skill and prudence in managing the horse, such care, skill and prudence as ordinary persons like herself were accus-, tomed to exercise in managing their horses. To the instructions on both these points the defendants excepted.</p> <p>In the course of his argument to the jury the defendants’ counsel, without objection or interruption, referred, by way of caution to the jury, and for the purpose of illustrating his views, to the large sums often claimed and recovered of railroads and towns in similar cases to that then under consideration, and the often fictitious and exaggerated character of the injuries claimed to have been received in accidents of this character.</p> <p>In his reply, the counsel for the plaintiff’ referred to a case by name which had been tried before referees, and stated tbe amount of damages awarded by the arbitrators for an injury resulting from a defect in a highway. The counsel for the defendants objected to this course of remark, as the facts alluded to were not in evidence, and had no proper bearing in the case. Thereupon the court suggested that the arguments of counsel should properly be confined to the law and evidence in the case under consideration; but the plaintiff's counsel insisting that he had a right to illustrate his own views, and the position of the defendant’s counsel in appealing to the experience and observation of the jury in similar cases, by referring to another case of like character, the court permitted him to proceed with his argument.</p> <p>The jury having returned a' verdict for the plaintiff, the defendants moved that the same be set aside for supposed errors in the instructions of the court, and the course of the plaintiff’s argument.</p> <p>to the point that, if any defect in the plaintiff’s horse contributed to the accident, she could not recover, referred to Johnson v. Haverhill, 35 N. H. 82; Morrill v. Jeering, 3 N. H. 53, and May v. Princeton, 11 Met. 442 ; that the plaintiff was bound to exercise such ordinary care, skill and prudence as mankind in general- were accustomed to exercise, in the management of her team, and not such as women in general were accustomed to use, they cited Hubbard v. Concord, 35 N. H. 62; that the course of the plaintiff’s counsel, in stating and -commenting on facts, not in evidence before the. jury, was erroneous, they referred to Mitchum v. Georgia, 11 G-eo. 615.</p> <p>on the first point, referred to Palmer v. Andover, 2 Cush. 600 ; Hunt v. Pownal, 9 Vt. 44; Verrill v. Minot, 31 Me. 299, and Clark v. Barrington, 41 N. H. 44. Upon the second point they cited Hubbard v. Concord, 35 N. H. 52.</p>

Trover, for the meat of a beef cow, brought by Charles Dudley against 'William Sawyer. Plea, the general issue.

Case, for damages resulting from a defect in a highway. The original writ contained but one count, a copy of which makes part of the case. During the trial upon the general issue, after a part of the defendants’ evidence had been put in, the plaintiff was allowed to amend, subject to the defendants’ exception, by adding a second count, a copy of which makes a part of the case.

<p>A dead which commences its description “at a stake and stones at the southwest corner” of the premises intended to he conveyed, “it being the northeast corner of land that D. "W. deeded to J. "W. May 20,1815,” can only he construed as intending to describe and to convey land, the southwest corner of which is identical with the northeast corner of the tract referred to therein.</p> <p>"Where a deed describes the line of the premises intended to be conveyed as running “by the land the said D. deeded to the said J. W.,” the word “by” is not to be construed as meaning “over,” or “across,” but “ along the line of” the tract of land referred to therein.</p> <p>Where a deed in fact describes no territory whatever, it cannot properly be construed to pass the title to any particular tract of land, but must be regarded as wholly inoperative.</p>

Indebitatus Assumpsit, for the labor and services of the plaintiff during five and a half years of his minority, — to wit, from the age of fourteen to that of nineteen and a half years, — and a quantum meruit for the same services.

Lund, the defendant, as administrator of Jonathan ~W. Lund, late of Concord, in our county of Merrimack, deceased, intestate. The decree allowing the administrator’s account was made at a court of probate held December 28, 1859, and the appeal was taken to the next term of this court holden in the county.

Assumpsit, for supplies furnished paupers alleged to be chargeable to the defendant town. The only question in the case was, whether Enoch Holt acquired a settlement in Pembroke by the payment of all taxes legally assessed against his poll and estate for seven consecutive years. The records of Pembroke showed that Holt was taxed there for the nine years immediately following 1824; and he testified that he had no doubt he paid all the taxes assessed against him in those years.

<p>The facts in this case sufficiently appear from the opinion of the court.</p>

<p>In. an action for the breach of the covenant of -warranty contained in a conveyance of land, the measure of damages is the consideration received by the covenantor, and interest thereon for the time for which mesne profits can he recovered of the covenantee, with the costs of the suit attending the eviction.</p>

Tsespass, quare clausum, brought by William Richardson and others against Elliot Chickering and others. Plea, the general issue. The locus in quo was that part of lot twenty, in the second range and fifth division of lots in Hooksett, formerly Chester, remaining after sixteen acres were taken from off its northerly end by a line parallel to the northerly end line of said lot.

<p>Assumpsit, by Flanders "Walker against Perry Rickards, the declaration containing several counts. The first count alleges that “ defendant, at, &c., in consideration that the plaintiff, at his request, would sell and deliver to one Jacob Davis, on credit, all such goods as Davis should wish to buy of him, while Davis worked for the defendant, promised the plaintiff to be accountable to him for the price of said goods. The plaintiff avers that he did sell to Davis, while he was at work for the defendant, &c., on credit, &e., goods which Davis wished to buy, &c., amounting, &c., and Davis, though requested on, &c., had not paid, &c., of which defendant had notice, but though requested on, &c., has never accounted to the plaintiff, nor paid him for said goods, &c.”</p> <p>An amended count, after alleging the promise as before, alleges a sale to Davis, &c., yet the defendant, though requested, has not paid for the same, but refuses.</p> <p>A second amended count alleges the promise to be, that he would be responsible, and see him paid for the price of the goods; alleges a sale to Davis, &c.; yet the defendant, though requested, has not paid, &c.</p> <p>Similar counts relate to goods sold to A. S. Gardner, and to P. Hopkins.</p> <p>A general count, among other things, contains a count “ for goods, wares, and merchandise sold and delivered by the plaintiff to the defendant, at his request.”</p> <p>The defendant objected, that under this declaration the plaintiff could not recover for goods delivered to Davis, Gardner, or Hopkins. The plaintiff had charged the goods on his books to Davis, Gardner, and Hopkins, and he introduced evidence tending to show that he had done so at the request of the defendant, that the defendant might see, from time to time, whether they were taking up their pay for labor done for the defendant faster than they earned it. The court overruled the objection, and instructed the jury that if the plaintiff delivered goods to Davis, Gardner, or Hopkins, in pursuance of and according to a previous request of the defendant, and a previous absolute promise of the defendant to pay for the goods; and if the plaintiff and defendant understood that the defendant was to pay for them, and that the whole credit was given to him, and that no credit was given to Davis, Gardner, or Hopkins, and that understanding was carried out, the plaintiff was entitled to recover.</p> <p>To these instructions the defendant excepted; and a verdict being returned against him, he moved to set it aside.</p>

<p>Assuiupsit, brought by John Loring and wife against Abner B. Woodward. The writ was dated September 16, 1869, and was brought against the defendant as executor of the will of Peggy Puller, of Francestown, deceased, to recover the dividends on certain stocks. It was agreed that Peggy Puller made her will on the ninth of January, 1858, and died on the eleventh of February following; and her will was proved, in solemn form, on the sixth of July, 1859, and no appeal was taken.</p> <p>The will contained, among other items, the following:</p> <p>“ I give and bequeath unto my sister-in-law, Desire Lor-ing, one half of all my stock in the following named railroads, to wit, the Lowell & Nashua Railroad, &e. Also, I give and bequeath unto the said Desire Loring, one half of my stock, in the Webster Bank.</p> <p>“I give and bequeath unto the children of my sister-in-law, E. West, the other half of all my stock,” &c. (as above), “to be divided,” &e.; “and I direct my executor to transfer all the above named stocks as above bequeathed, within one year after my decease.”</p> <p>The will contains several other legacies and bequests, and then gives all the rest and residue of her property to the defendant and John West.</p> <p>On the seventeenth of January, 1869, the defendant transferred to Desire Loring the stocks bequeathed to her, and took from the plaintiffs the following receipt:</p> <p>Received of Abner B. Woodward, executor of the last will of Peggy Puller, late of Francestown, deceased, fifty-seven shares of the Nashua & Lowell Railroad, &c., being the stocks specifically bequeathed to me by said deceased.</p> <p>Desiee P. LoRING.</p> <p>Jan. 17th, 1859. JOHN LoeiNG.</p> <p>After the decease of Mrs. Puller, and before the transfer of the stocks to Mrs. Loring, the defendant received dividends on said stocks to the amount of $1,274, which the plaintiffs knew at tbe time of giving said receipt. Before commencing this suit the plaintiffs demanded of the defendant one half of said dividends.</p> <p>If .it would be competent for the defendant to show, by parol, that the testatrix, at the time of executing her will, expressed her intention that these dividends should go into the residuary fund, and that such was her intention and understanding of the effect of the will, the parties admit that such was the fact.</p>

<p>“Wliere the question of the actual bond fide intention of parties in any transaction occurring between them is in controversy, whatever is directly calculated to throw light upon their probable motives, or to illustrate their existing relations and the feelings likely to influence their action, is competent for the consideration of the jury.</p> <p>Twenty years’ continuous experience in the manufacture of a particular article, some portion of the time as foreman in the business, is •prima facie evidence of superior knowledge in that branch of manufactures.</p> <p>When a witness is inquired of as to a particular state of facts, and he replies that it has no existence to his knowledge, — his answer is not objectionable, if it appear that he has special means of knowledge on that subject.</p> <p>The admission of testimony tending to contradict that of a witness for the opposite party in a material point, or which is simply immaterial and not calculated to excite prejudice, is no cause for disturbing a verdict.</p>

Assumpsit, upon a note of band, made and dated at Lowell, Massachusetts, October 14, 1858, for tbe sum of $485.38, signed by tbe defendants as copartners, and payable to tbe order of tbe plaintiffs, at tbe Merchants’ Bank in said Lowell, three months after date. Plea, tbe general issue, accompanied by a brief statement of a discharge of the defendants under tbe insolvent laws of Massachusetts.

INDICTMENT, for keeping a disorderly bouse ; a copy of the indictment being a part of the case. After the defendant had pleaded not guilty, and a jury had been impanelled and a witness sworn, the defendant moved to quash the indictment for defect in omitting the addition of the defendant’s estate, degree, or mystery. The court overruled the motion, and the defendant excepted.

<p>The fact that a note was originally obtained by duress, will not be a good defence to the note in the hands of a bond fide holder for a valuable consideration paid before its maturity.</p> <p>But where fraud, illegality, or duress, in the making or original circulation of the bill or note, is shown, that will cast upon the plaintiff the burden of proving that he is a bond fide holder for a valuable consideration.</p>

<p>Assumpsit, upon a promissory note, of which the following is a copy:</p> <p>“$800. — Derby Bank. — For value received, we severally and jointly, all as principals, promise to pay the Derry Bank, or order, eight hundred dollars, at said bank, on demand, with interest after sixty days, giving said bank the right of collecting this note at any time, notwithstanding the payment of interest in advance. — Derry, N. ID, Oct. 18, 1857.</p> <p>C. W. BALDWIN.</p> <p>S. H. Edgerly.</p> <p>A. 0. Heath.”</p> <p>The writ was dated February 15, 1859. Plea, the general issue. Baldwin was defaulted. Edgerly and Heath contested the suit,’ and introduced evidence, subject to the plaintiffs’ exception, tending to show that they were, in fact, sureties for Baldwin upon the note; that that fact was known to the plaintiffs when they took the note; that the note was taken by the bank October 80, 1857, to renew a former note of Baldwin; that at that time the plaintiffs received $12.40 for sixty-three days’ interest from the date; that at the expiration of the sixty days Baldwin paid the bank interest in advance for sixty days more, at the rate of eight or ten per cent; that the bank brought an action upon the note, which was entered and continued February, 1858, and entered N. P., April, 1858; that in March, 1858, Baldwin paid the bank $32.83 as interest to June 2, 1858; that at the time of that payment it was understood by the bank and Baldwin that the payment of the note was to be extended to June 2, and that Baldwin was to have a year or more to pay it; that at the time of that payment Baldwin had sufficient property to pay all his debts; and that Edgerly and Heath knew nothing of the payments by Baldwin, the stopping of the former suit, or the agreements of extension. The defendants read from Baldwin’s deposition, subject to the plaintiffs’ exception, his testimony that in the former suit on this note the property of all the three defendants was attached. None of the principal of the note has ever been paid. The court ordered a verdict for the plaintiffs, and the defendants excepted; and the questions of law were reserved for the determination of the whole court.</p>

Assumpsit, for support of Ira Brown, his wife and child, as paupers. The only question was, as to the settlement of Ira Brown, who was the son of David Brown, who was the son of Benjamin Brown, who died about 1802. The plaintiff' claimed that Benjamin gained a settlement in Deering by having real estate of the value of $150 in Deer-ing, where he dwelt and had his home, and paying all taxes duly assessed on him and his estate for four years in succession.

This was assumpsit, by John J.Divoll against Ira Atwood, upon two promissory notes, to which the defendant pleaded usury, and tendered his oath. The plaintiff thereupon denied the usury under oath, and the court decided that the deduction could not be made.

<p>This is a writ of entry upon a mortgage to secure the payment of a promissory note of $200, made by the defendant, and payable to the plaintiff. The defendant comes in, and, after setting out the condition of the mortgage and describing the note, alleges that the judgment ought to be conditional as of mortgage, and not for the full amount of the note, because of an usurious agreement by which the plaintiff received ten dollars, over and above the lawful interest, for the forbearing and giving day of payment of the money in question, — alleging that the plaintiff is in full life and of sound mind, and praying that a deduction of three times the unlawful interest be made from the sum lawfully due, in entering up the conditional judgment.</p> <p>To this the plaintiff replies, that at the court of common pleas for the same county, at the April term, 1859, he im-pleaded the defendant upon the same note set forth in the defendant’s plea, to which the defendant pleaded usury in taking said sum of ten dollars, over and above the lawful interest, for giving day of payment on said note, and offered to verify the truth of said plea by his oath; that at the May term, 1860, of the Supreme Judicial Court for the same county, to which court said action was by law transferred, the plaintiff filed his replication denying all usurious agreements, and the taking or securing by said note of any interest above the rate of six dollars for one year, and alleging that he appeared in court and made oath to such replication.</p> <p>"Whereupon, at the same term, the defendant filed a general demurrer, with a conclusion that the plaintiff ought to have conditional judgment for only the amount lawfully due after deducting three times the unlawful interest.</p> <p>1. "We submit that usury cannot be pleaded to a writ of entry under our present statute, which differs from the statute of 1791. By that statute, provision is made for a deduction for usury in case of a mortgage; by the Revised Statutes that provision is omitted. N. H. Laws (Ed. 1880) 134; Rev. Stat., ch. 190, sec. 3. The cases referred to by the defendant were all founded upon contracts made prior to the passage of the Revised Statutes.</p> <p>2. "Where a particular right is given by statute, and the mode of obtaining it is prescribed by the statute, that mode alone can be followed. And if it be held that under the Revised Statutes usury can be pleaded to a writ of entry, it must be done in the manner pointed out by the statute, —by tendering the oath of the party. Such would seem to be the opinion of Parker, C. J., in Briggs v. Sholes, 14 N. H. 265; and of Fowler, J., in Simons v. Steele, 36 N. H. 78. We submit that the dicta in the cases cited from 3 N. H., and which are doubtingly expressed in Kimball v. Abbott, 5 N. II. 394, are not good law; and that the plea is bad in not tendering the oath of the defendant.</p> <p>3. Assuming the plea to be sufficient, the replication is a good answer. It shows that the question of usury upon the note secured by the mortgage has already been determined in an action upon the note between the same parties, and that the matter is res judicata.</p> <p>Sawyer $ Stevens, for the defendant.</p> <p>In a writ of entry on a mortgage, the defendant has a right to the triple deduction allowed by the statute from the whole sum due, and the conditional judgment must be for the balance only. Briggs v. Sholes, 14 N. H. 262. This deduction may be made where the usury was found by a verdict of the jury. R. li. v. J. M., 3 N. H. 144; Gibson v. Stearns, 3 N. H. 185; Kimball v. Abbott, 5 N. H. 394. We admit that it is good law that where the defendant pleads usury under the statute, with a verification by his oath, neither party can, in a subsequent pleading, change the course of the trial by tendering an issue to the jury. Ta/ppan v. Sargent, 13 N. H. 429. But there are different modes of ascertaining the usury; one by tendering the oath as pointed out by the statute, the other, by common law, by a plea in bar as to a certain sum. The defendant in this adopts the remedy given him by common law. R. R. v. J. M., 3 N. H. 144; Gibson v. Stearns, 3 N. H. 185; Kimball v. Abbott, 5 N. H. 304. The defendant does not propose to change the form of the pleadings in this case; he elects to plead in the manner he has ; the jury may or may not find usury.</p>

This action, brought by Thomas F. Breed against Pel-tiah Gove, was referred to an auditor, who reported that the claim of the plaintiff was for the sum of $38.88, for necessaries furnished the wife of the defendant while living apart from her husband; and the auditor found that the plaintiff was not entitled to recover any portion of said sum of the defendant.

This is an action brought by Horace Cudworth against Charles Scott, for taking and carrying away, October 20, 1859, a quantity of hay, oats, oaffstraw, wheat, wheat straw, rye and rye straw, all which grew on the farm of one Cor-ydon D. Keyes, in Hancock, in this county, during the year of 1859. The wheat, wheat straw, oats and oat straw, were from the sowing of the spring of 1859; the rye and rye straw were from the sowing of the fall of 1858.

<p>To constitute an equitable estoppel by standing by, witbout objection, and. witnessing a sale of land, or the erection of valuable buildings thereon, it is indispensable that the party to be concluded should have been fully apprised of his title, and that the other party, at the same time being ignorant of such adverse title, should have been misled by such acquiescence, and induced thereby to change his position.</p> <p>Eor, if he was not ignorant of such adverse title, or, being put upon inquiry, the means of knowledge being within his reach, if he failed to use reasonable diligence to ascertain the truth, he has no cause to complain.</p> <p>Whether he has used reasonable diligence, and whether the person against whom the estoppel is set up has given reasonable notice of his claim, are questions for the jury.</p> <p>When, on a writ of entry, there is a disclaimer as to part, and the general issue as to the residue, and the jury return a verdict for the whole in favor of the demandant, he may have judgment for the parcel intended to be found, if the materials for a sufficient description exist, upon entering a remittitur as to the residue.</p>

Appeals from decrees of the judge of probate for this county, authorizing the appellee to sell the real estate of the testators, Each el Tilton and Jemima Tilton, respectively, to pay the expenses of administering their several estates, as heretofore allowed to him by said judge. The accounts were allowed May 18, 1852, and the decrees granting license to sell real estate were made October 21, 1856.

This was an issue between John J. Moxrill and Arthur C. Locke, sent down from the law term on a petition for partition, the plaintiff claiming one undivided fourth part of the premises from one Tenney Hibbard, his debtor, by virtue of a set-off on execution, and that the sale thereof by Hibbard, under which the defendant claims to hold the premises, was a fraud upon his creditors.

Trespass, by David Bartlett against John H. Prescott and others, for breaking and entering the plaintiff’s close, &c., and with horses and wagons subverting his soil, destroying his grass, &c. The action was brought before a justice of the peace, and there the defendant pleaded the general issue, a license, and right of way.

This was a petition for partition, by Daniel W. Kelly, J. M. Welch, and S. H. Welch, his wife, in her right, and others, alleging that they are severally tenants in common with the defendant, J. Q. A. Kelly, of an undivided sixth part each, of two certain parcels of land situated in Salem (particularly described), and praying that a committee may be appointed to make partition and set-off, and assign to them their respective shares thereof in severalty.

TRESPASS, by Jonathan B. Wadleigh against George Janvrin, for taking and carrying away a cider mill and press, two stanchion timbers, eighteen hinge staples, thirty tie chains, and twenty tie-up… Held: and reinvested with that of personal estate. The stanchion pieces had been cut up, and a portion of them used for other purposes; these therefore could not be replaced in their former position.

IN equity. The bill alleges that one Job Tabor, formerly of Portsmouth, deceased, died, leaving a homestead farm in said Portsmouth; that… Held: and now holds all the right, title, &c., by deeds duly executed and recorded from said heirs, to the reversion of one half of said farm, after the death of said John- Tabor: That said John Tabor and the other defendants, all acting by directions from and under the authority of said John Tabor, had been and were cutting wood on said…

This was a writ of entry for a tract of land in Auburn, to which the defendants pleaded, as to part, nul disseizin, and disclaimed the residue; and upon trial of the general issue, the plaintiff introduced several deeds, conveying with warranty, lands in Auburn, by a description which embraced, as he alleged, the land in dispute, and proved entry by those grantees under their deeds.

Indictment against Benjamin Watson, for larceny of twenty-five dollars in gold, the property of one Hilton.

<p>Assumpsit, submitted upon the following agreed statement of facts:</p> <p>At the annual meeting of the town of Epping, in March, 1856, the plaintiffs, Jonathan Gove and others, were duly elected and qualified as selectmen of said town for the year ensuing. On the 10th day of March, and during said year, at a meeting duly notified and holden for the purpose of correcting the alphabetical list of the legal voters of said town, tbe plaintiffs, selectmen as aforesaid, though thereto requested, refused to erase from the list the names of two persons, alleged by the parties so requesting not to be legal voters in the town ; and such proceedings were thereafterward had that two indictments were found against the plaintiffs for such refusal, and at the October term, 1858, of this court, upon trial of one of the indictments, the plaintiffs were by a verdict of the jury acquitted of the charges contained therein, and the other indictment was thereupon dismissed.</p> <p>In the preliminary examination before the magistrate, and in defending the prosecution under said indictments, the plaintiffs expended more than two hundred dollars.</p> <p>At a meeting of the legal voters of said town, duly warned in March, 1859, a proper article therefor having been inserted in the warrant for said meeting, the town voted to pay the plaintiffs the sum of two hundred dollars, to indemnify them from the costs and damages sustained by them in defending said prosecutions; and on the eleventh day of March, and after the meeting, the plaintiffs duly demanded of the town the said sum of two hundred dollars, which was not paid, and this suit was thereupon brought to recover said su n, with the interest thereon.</p> <p>In this case, as it seems to us, two questions arise: 1; Were the plaintiffs, at the #time they committed the acts for which the prosecutions were instituted against them, acting in the bond fide discharge of their duty, in their official capacity as selectmen ? 2. Have towns the power to indemnify their officers or agents against any charge or liability incurred in the discharge of their official duty ? Upon these questions we take the following positions :</p> <p>The regulation of the check-list is made by statute the duty of the selectmen, as officers of the town, as much as the posting of the warrant, assessment of the taxes, or auy other act which is required of them in their official capacity. Comp. Stat., ch. 26, sec. 125; ch. 34, secs. 23, 24; ch. 36, sec. 2; ch. 45, sec. 3.</p> <p>Towns have power to indemnify their officers and agents against any charge or liability they may incur, in the bond fide discharge of their duty, even though it should turn out, on investigation, that they mistook their legal rights and authority; and this power extends to selectmen, as well as to any other officer or agent. Tike v. Middleton, 12 N. H. 280; Nelson v. Milford, 7 Pick. 18; Bancroft v. I/ynnfield, 18 Pick. 566; Thayer v. Boston, 19 Pick. 516.</p> <p>The vote of the town to pay these plaintiffs a certain sum, to indemnify them for the sums expended in defending the prosecutions against them, was valid and binding; and the verdict of the jury, acquitting them of the charges preferred against them, is conclusive that they acted in good faith, and did not mistake their legal rights and authority. Adams v. Mack, 3 N. H. 499; Batchelder v. Tipping, 28 N. H. 354; Nelson v. Milford, before cited. To hold otherwise would be contrary to public policy, and subversive of the best interests of towns.</p> <p>1. Towns can appropriate moneys derived from taxation only to the purposes for which they are authorized by law to assess and collect them., Towns have no power to assess and collect taxes to “ give away.” Hooper v. Emery, 2 Shepl. 375. “ It is now well settled that a town, in its corporate capacity, will not be bound, even by the express vote of a majority, to the performance of contracts, or other legal duties, not coming within the scope of the objects and purposes for which they are incorporated.” Anthony v. Adams, 1 Met. 286. A gratuity or bonus, which may well come from individual bounty, cannot be the subject of legal exaction. Stetson v. Kempton, 13 Mass. 281. See also Task v. Adams, 10 Cush. 252, and Claflin v. Hopkinton, 4 Gray 502.</p> <p>2. This case does not come within the principle that towns may indemnify their officers and agents, against any liabilities they may incur for acts done by them, in their official capacity, acting in behalf of the town, and in a matter in which the town had a direel, and important interest. The selectmen, in preparing a check-list, do not act in behalf of the town; nor is the preparation of such a list a matter in which the interests of the town are directly involved. A check-list need not be used in voting for town officers, or upon town affairs. It is required to be used only in voting for State and county officers, representatives in Congress, and electors of President and Vice-President. Comp. Stat., eh. 26, sec. 1; Morrill v. Haines, 2 N. H. 246. In preparing the check-list, the selectmen are quasi civil officers of the State government, though elected by the town. The interests of the town were not in any way involved in the criminal prosecution against the selectmen. The town had nothing at stake upon the result of the litigation. It was not responsible for the fidelity of the selectmen, in regard to the check-list. It could not gain by their diligence, or lose by their official inattention or carelessness. A municipal corporation is not liable for the misfeasance or non-feasance of one of its officers, in respect to a duty specifically imposed by statute on the officer. Martin v. Mayor of Brooklyn, 1 Hill 545, 551. In Vincent v. Nantucket, 12 Cush. 103, it was held that a town is not bound, by its corporate vote, to pay the expenses of a field-driver, in defending a suit, brought against him for taking up and impounding cattle, running at large contrary to law. See also Hale v. Gush-man, 6 Met. 425.</p> <p>3. The cases of Bancroft v. Lynnfield, 18 Pick. 566, and Pikev. Middleton, 12 N. H. 278, are widely different from the case at bar. In the former case, it was held that a town could legally vote to indemnify a surveyor of highways against liabilities incurred in the discharge of his duties. The court put their decision upon the ground that the town had a “ right to adopt the act, for they were interested in the subject, being bound to keep the highway in repair and most of the expenses sought to be recovered, in that suit, were incurred under the authority of a previous vote of the town, that they would defend the action. Pike v. Middleton decides that “ towns may bind themselves by vote to indemnify a collector of taxes from the costs and expenses of defending actions brought against him, for acts done in the performance of his duties.” The decision appears to be based upon the following reasoning: “ A collector is not bound to accept the office to which he is elected; the statute expressly excuses him from serving, unless he choose. When there is reason to apprehend difficulties in the collection of a tax, from whatever cause they may arise, the interests of the town might suffer severely, if an indemnity could not be offered. For non-collection of a tax, a town may be liable to a penalty, or to suit by its creditors.” In that case, too, the promise to indemnify was made when the collector entered upon office, and before any liability was incurred. In Bachelder v. Pipping, 28 N. II. 354, the plaintiff was employed by the town to perform certain services. He did so; and the town was held bound to compensate him for services rendered and money expended. That case differs essentially from this.</p> <p>We think that Nelson v. Milford, 7 Pick. 18, also cited by the plaintiffs, is an authority in our favor. In that ease, there was a vote of the town to pay the assessors the amount they had been obliged to refund to individuals, in consequence of assessing, collecting, and paying over to the State, county, and town, the taxes due to them respectively, the assessment having been held to be illegal. It was held that, under this vote, the assessors were entitled to recover tbe amount tbey bad paid to tbe town for tbe use of tbe town, but that tbey could not recover of tbe town tbe amount of tbe State and county taxes wbieb tbey bad been obliged to refund. Tbe court said: “But there is a portion of tbe money sued for wbieb does not fall witbin this principle. Over tbe State and county tax, tbe inhabitants of tbe town, in their corporate capacity, have no control. Tbe apportionment on tbe town is fixed by tbe legislature and court of sessions, respectively. Tbe assessment is not made by authority of tbe town, and tbe tax, when collected, is not paid into tbe town treasury. The town has no special benefit from it, nor any control over it, nor was it paid by tbe assessors in behalf of or to tbe use of tbe town. We think, therefore, that tbe promise to pay this is without consideration, and therefore void.” These remarks apply to this case. The cases cited by tbe plaintiffs go to sustain our position — that towns can indemnify their officers only for acts done by them in behalf of tbe town, and in relation to matters in which the town has a direct and special interest. Tbe vote, in this case, was nothing more than a mere attempt to make a present to the selectmen, to compensate for liabilities incurred in relation to a matter in which the town, in its corporate capacity, bad no interest; and tbe attempt to vote this gratuity was not made until after the litigation was all ended.</p>

<p>Case, for injuring, by immoderately driving, a horse, hired of the plaintiff by the defendant. A witness for the plaintiftj whose competency to testify as an expert in the matter was proved to the satisfaction of the court, was allowed to testify as to the cause, nature, and remedy of the disease of horses called founder, and that the plaintiff's horse was foundered. To the ruling of the court, admitting this evidence, the defendant excepted, on the ground that the witness was not an expert. A verdict was returned for the plaintiff, which the defendant moved to set aside.</p>