Volume 42 — New Hampshire Reports

<p>Presumptively, the parties to a promissory note stand to each other in the relations in which their names appear. As between themselves and as against the holder who took the note with knowledge of their true relations, the facts may, for some purposes, be shown.</p> <p>To make one surety upon a note a principal as to another surety, it must be shown that the latter became surety at his request.</p> <p>One who signs a note as surety, but without the addition of surety to his name, and leaves it in the hands of his principal, does not thereby make the principal his agent to request others to sign as sureties for him as a principal.</p>

<p>If the goods of a plaintiff are so intermingled with those of a debtor, that, in his absence and without his identifying and pointing them out, it is . impossible for a creditor of that debtor, or an officer having a writ against him, to distinguish them from those of the debtor, both the officer and creditor are justified in attaching and retaining the whole as the property of the debtor, until the plaintiff’s goods are identified and pointed out, or an offer is made to identify and point them out; and these facts, constituting a defect in the plaintiff’s title, may be shown under the general issue in trespass for taking the goods thus intermingled.</p> <p>If doubtful, from tbe evidence, whether his goods were thus intermingled, and by the fault of the plaintiff, that question should be submitted to the jury; and upon this point it would be entirely immaterial whether the intermixture were the result of an improper agreement or fraudulent contrivance, between the plaintiff and the debtor, if the goods were intermingled through any neglect of duty or want of due care and diligence on the part of the plaintiff.</p> <p>"Where the original taking, under process, of goods intermingled, is rightful and justifiable; if not a conclusion of law from the facts proved, it is for the jury to determine, under proper instructions, whether or not a neglect or refusal to surrender them, upon demand made and an offer to point them out, and a subsequent sale thereof under process, may have rendered the original taking a trespass.</p> <p>To make one who originally acted with propriety under legal process liable, ab initio, for subsequent illegal acts, he must be shown to have grossly abused the authority under which he acted; such an error or mistake as a person of ordinary care and common intelligence might commit, will not amount to an abuse; but there must be such a complete departure from the line of duty — such an improper and illegal exercise of the authority to the prejudice of another — such an active and willful wrong perpetrated — as will warrant the conclusion that its perpetrator intended from the first to do wrong, and to use his legal authority as a cover to his illegal conduct.</p> <p>There is no legal presumption that one partner concurs in the wrongful acts of another; and he is not liable therefor, unless they were done within the proper scope and business of the partnership, or were authorized or adopted by him.</p> <p>Where the verdict is for a sum larger than the ad damnum in the writ, the difficulty may always be remedied by entering a remittitur for the excess ; the ad damnum may be amended after verdict, when it is apparent, from the declaration itself, that it was left blank, or too small a sum inserted through mistake or inadvertence only; and if there has been a full and fair trial on the merits, which appear-from the declaration, without any knowledge by either party of the defect, judgment may be Tendered, after amendment, without a new trial; if it does not appear that the defendant had no knowledge of the defect, the amendment may be made, but a new tidal must be granted, to give him an opportunity to contest the enlarged-demand; but, in actions sounding in damages only, where the plaintiff deliberately estimates the injury to himself, and there is only a difference in judgment between the jury and him, as to the nature and aggravation of the injury, no amendment increasing the ad damnum to cover the verdict will be allowed, and the only remedy for an excessive verdict is by a remittitur; yet the court, in their discretion, may permit the ad damnum to be increased in any case, after a full and fair trial, upon, the .claim of an appeal or review by the defendant.</p>

<p>The grantor of the premises demanded in a writ of entry, is estopped at law and in equity, by the covenants of his deed, from setting up a right of homestead therein, as against the grantee, his heirs and assigns.</p> <p>The inchoate right of homestead, before the same has been set out and assigned, is not such an estate in the land wherein it exists as will bar a writ of entry therefor by the general owner.</p>

<p>The grantor of premises occupied as his home, is estopped by the covenants of his deed from maintaining a bill in equity for the assignment of a homestead to himself therefrom.</p> <p>During the lifetime of the husband and father, who has conveyed with covenants the premises occupied as the family home, neither his wife or minor children, claiming through and identified with him, are entitled to have a homestead assigned and set out therefrom, against the covenants of his deed.</p> <p>The right of homestead does not exist against a mortgage made to secure a debt existing prior to January 1, 1852, or a renewal of such debt, although the mortgage be executed subsequent to that date.</p> <p>Upon a bill in equity, brought to secure the assignment of a homestead, it may be shown, to defeat the bill, that the note secured by the mortgage against which the homestead is claimed, although dated subsequently, was given in renewal of a debt existing prior to January 1, 1852.</p>

This was an action of tresspass quare clausum, by Mary W. Cheswell against Joseph Y. Chapman, commenced before a justice of the peace, in which the plaintiff declared that the defendant, on the 24th of July, 1856, at Durham, broke and entered the plaintiff’s close, situated in Durham, containing twenty acres, particularly described, and broke down and removed ten rods of the plaintiff’s fence, and with carriages, teams and men, trampled and destroyed a large quantity of her…

This was a writ of entry, to recover certain land in Rochester, in this county. Plea, the general issue. The facts will appear in the opinion of the court.

<p>The office of' agent for the purchase and sale of spirituous liquors, is an annual office, and the official bond covers the official year only, although the agent may, by reappointment, or holding over, continue in office longer.</p>

<p>"Wheii the original counts are for money paid and money had and received,' ' a new count for work and labor, as the defendant’s factor and agent, will not he received by way of amendment, without the defendant’s assent, it being wholly inconsistent with the original claim.</p>

Appeal, from the police court of Dover. It was charged in the complaint that the respondent, at, &c., on,'&c., was found in a state of intoxication, in a certain street called Third street. It was agreed that the alleged offense was committed after chapter 2371 of the Laws of 1860 took effect. A motion of the respondent to be discharged was reserved for the determination of the whole court.

<p>In an action to recover of the defendant, as indorser, the amount of two promissory notes, negotiated to the plaintiff for a good consideration before they became due, each note having on the back the words, “ Alfred Caverly, accountable,” it appeared that there was no demand on the signers, who failed to pay the notes, and no notice to the indorsers before suit. — Held, that, under this form of indorsement, the defendant had waived demand and notice.</p>

<p>A bill of interpleader does not lie by a sheriff against several creditors, where a controversy arises as to the application of the money in his hands, derived from a sale of a debtor’s property on execution. His remedy is by an application to the summary jurisdiction of the court from which the process issues.</p> <p>In a bill of interpleader, the plaintiff must offer to bring into court the money in dispute. ,</p>

<p>Upon the question whether fire was communicated, to a building by sparks or coals from particular locomotive engines, running upon a railroad upon a specified occasion, evidence that sparks and even coals were emitted from other engines running upon the same road upon other occasions, isa incompetent, unless it be conceded that those other engines were of the same construction, used in the same manner and in the same state of repair.</p> <p>Evidence is not immaterial, when it is calculated to prejudice the jury against the party objecting to its reception and against whom it is offered, although it relate to matters in themselves immaterial and irrelevant to the question in controversy.</p> <p>An immaterial averment in an indictment, declaration or other pleading, can not be rejected as surplusage, unless every allegation or averment which it goes to identify by description, or to limit or define, may also be rejected ; so that, if any material averment is thus described, limited or defined by it, the whole pleading must fall, without proof of the immaterial averment.</p>

Trespass, to recover the value of a wagon, alleged to have been the property of the plaintiff, and to have been taken by the defendants, and converted to their own use.

<p>On proof of the loss of a mortgage deed of land, made hy the defendants, to secure the maintenance of the mortgagee and his wife, a court of equity will decree a new mortgage to be made, and will award costs against the defendants, where the existence of such a mortgage is denied by the answer.</p>

<p>Gifts inter vivos, like those causa mortis, must be perfected by actual delivery.</p> <p>But gifts inter vivos, when perfected by actual delivery and acceptance, unlike those causa mortis, go into immediate and absolute effect.</p> <p>When a suit is brought by an administrator for the benefit of a residuary legatee, and a third person gives a bond to the administrator to indemnify him against the costs of the suit," such third person is in no sense a party to the suit, and is a competent witness.</p> <p>But when the court had erroneously ruled that the plaintiff’s witness could not testify unless the plaintiff (the administrator) should elect to do so, and the plaintiff excepts to that ruling and thereupon elects to testify himself and does so testify, he removes the ground of the exception he had taken.</p> <p>TJpon the question of the genuineness of the testator’s signature to a paper offered in evidence by the defendant, it appeared that on one occasion a witness had seen the defendant copy the testator’s name from a genuine signature, and it was held incompetent to inquire of the witness as to the correctness of that imitation, where the copy has not been preserved, with the view of showing that the defendant might have written the signature in question ; especially as the witness was not an expert.</p> <p>Where a witness had been impeached by showing that he had made statements to several persons contradictory to those made on the stand, it is not competent to introduce the statements of the witness made to other persons, similar to those made upon the stand, for the purpose of sustaining him, even where such statements were made immediately after the transaction occurred which had been stated on the stand, unless it shall distinctly appear that there has been some change in the relation of the witness to the party or cause, since such early statements were made.</p>

<p>The power of selectmen of towns to make rules to govern agents appointed by them, extends to the purchase as well as the sale of spirituous liquors, and under that power they may prohibit the use of the town’s credit altogether.</p> <p>If, however, these rules are willfully made so stringent as to defeat the object of the law, the selectmen would be subject to indictment in the same way as if they refused to appoint an agent at all.</p> <p>When the appointment of such agent contains a prohibition of the use of the town’s credit, and is duly recorded as required by law, every one who sells liquor to him is charged with notice of such limitation, and can maintain no action against the town for the price of the liquors.</p> <p>When the time of making the record does not appear on its face, yet as a record is required by law, the seller is put upon inquiry as to the nature and extent of the agent’s authority, and will stand charged with notice of all that reasonable inquiry would have given him.</p> <p>If, however, the goods had been purchased by the.agent, assuming the right to pledge the town’s credit for the price, and the town had afterward received them with a knowledge of the way they were purchased, and applied them to its use, this would have been a ratification of the agent’s authority, and the town would be bound.</p>

This is an action on the case for a libel. The declaration was as follows : In a plea of the case, for that the plaintiff is, and from, the time of her birth hitherto has been a good, pious, virtuous and honest subject of the state of New-Hampshire, and has always, during all the time aforesaid, behaved and governed herself as such, and until the time of writing and publishing the false, scandalous and malicious libel, hereinafter mentioned, has always been, and was always…

<p>Appeal from commissioners of insolvency. The declaration filed was upon an account annexed, for lumber sold, amounting to $849.59.</p> <p>The action was referred to an auditor, who disallowed the plaintiff’s claim. The plaintiff elected a trial by jury, and filed the necessary affidavit.</p> <p>On the trial, the plaintiff called his son, George Rich, as a witness to prove the sale and delivery of the lumber. The defendant objected to his competency, on the ground that he was jointly interested in the lumber in question, and so a party in interest in the suit. Among other evidence, some letters of the witness and of the plaintiff to the testator were introduced, in which the lumber was spoken of by both as belonging to them jointly. The plaintiff objected to the evidence, but the court received it, and entertaining doubts, and finding the question depended on intricate matters of fact, permitted the witness to testify, and submitted the question of his interest as a party to the jury.</p> <p>For the purpose of contradicting George Eich, and to show his interest, the defendant was permitted to read letters from George Eich to the testator, against the plaintiff’s objection. F. H. Keyes was called and examined by the plaintiff as a witness, and the defendant, against the plaintiff’s objection, was permitted to put in evidence to contradict and explain his testimony, two letters, written by him to the testator.</p> <p>The account books of the testator were permitted to go to the jury with instructions, one of which was that they were not evidence of the money charged to the plaintiff upon them. Among the items charged, was one under date of “ Sept. 14, 1850. To cash toward commission lumber, $110.” .T. Buttman, who was in the employment of the testator during the period of the transactions between the parties, and assisted in keeping his books, was called by the defendant, and permitted to testify against the plaintiff’s objection, that he made this entry upon the return of the testator from the plaintiff’s residence, about the 15th of September, 1850, the testator standing by him, and instructing him what to write, from a memorandum he brought home with him on that occasion.</p> <p>There was a conflict of testimony as to what occurred between the plaintiff and testator, at the time when, in March, 1856, the plaintiff and his son, calling to settle with him, the testator presented to him an account stated, showing a balance of indebtedness from the plaintiff and his son to the testator; the evidence of the defendant tending to show that the plaintiff^ although the books were exhibited to him, and he examined the account fully, made no objection whatever, either to the details or to the result, while that of the plaintiff tended to show that, though he made no other objection, he told the testator he did not understand the account.</p> <p>The evidence of the defendant tended to show that after the books were exhibited to the plaintiff, and he had examined the account, making no objection whatever, he took the account and carried it home with him, and never afterward called on the testator for payment, though he lived and carried on business at the same place until his death, October 6, 1857; while the plaintiff’s evidence tended to show that subsequently, on the same day the testator presented his account to the plaintiff, showing a balance in his favor, he admitted to the plaintiff that he owed him, and promised to pay him as soon as he got some money.</p> <p>As to the effect of the evidence on this point, the court instructed the jury that if they found, from all the evidence before them, that in March, 1856, the testator exhibited to the plaintiff his books, and presented to him a detailed statement of the accounts between them, showing a balance against the plaintiff, and that this statement was received and examined by the plaintiff, without his objecting either to the details or to the result contained in it; and if they found that from that time until the death of the testator, a year and a half afterward, the plaintiff made no objection to the account, though retaining it in his possession, and did not complain that it was incorrect, and made no call upon the testator for any payment, such circumstances were strong evidence to be considered by them, from which they might find that the plaintiff assented, and intended, to assent to the correctness of the account. To these instructions the plaintiff excepted.</p> <p>The court instructed the jury that if they found, from all the evidence bearing upon the point, that the plaintiff and George Rich were jointly interested as owners in the lumber sued for, when it was sold to the testator, whether as equal owners or otherwise, so that the testator became indebted to them jointly for the price, then George was incompetent as a witness, as a party in interest, and they should lay his testimony out of the case; otherwise they should weigh and consider it. To these instructions the plaintiff' excepted.</p> <p>In his argument to the jury, the plaintiff’s counsel insisted that the report of the auditor was no more to be regarded than a verdict which had been set aside. Upon this point the court instructed the jury that the report of the auditor was competent evidence for their consideration; that being in favor of the defendant, it made a primé fade case for him, and must stand, unless impeached or overthrown by the plaintiff’s evidence; that in effect they were to determine, upon all the evidence before them, whether or not the auditor had arrived at a correct conclusion. To these instructions the plaintiff excepted. The plaintiff moved for a new trial.</p>

<p>A married woman made a mortgage of land purchased by her, and her husband was not a party to her deed, all parties supposing her deed alone to be valid. The mortgagee brought his bill in equity without asking for a correction of the error, and before a refusal to pay the mortgage debt or any doubt suggested by the mortgagor of the validity of the mortgage. The husband and wife joined in a new deed, and it was held that the plaintiff had no equitable claim for costs.</p>

Assumpsit on promissory notes, by James Crawford and others against Lowell Robie. The action was tried, by agreement of the parties, by the court, upon the general issue. It was admitted that the defendant had become insane since the commencement of the action, and one D. Barnard had been appointed by the court guardian ad litem. One of the plaintiffs was admitted to testify against the guardian’s objection.

Assumpsit for breach of warranty in the sale of a yoke of oxen by the defendant, John E. Foster, to the plaintiffs, Ebenezer B. Deming and others, September 18,1858, for $105.

In equity. The bill set forth that the plaintiffs, Joseph M. Bell and others, were administrators of the estate of Joseph Bell, deceased; that Joshua Woodward, one of the defendants, being seized of a tract of land, in Haverhill (described), now occupied by him and James Woodward, the other defendant, on the 23d of November, 1840, mortgaged the northerly part thereof, commonly called the Samuel Ladd farm, to P. Goss, and M. Goss, his wife, to secure a note of said Joshua to…

<p>The plaintiff was a married woman when she received an injury from an alleged defect in a highway in the defendant town, but before suit was brought her husband died; upon the trial she is a competent witness.</p> <p>The question as to the ability of a town to build and keep in repair a given highway, is to be considered by the proper tribunal, in laying out an original highway; but their finding upon that point is conclusive, and remains so until the highway is discontinued.</p> <p>The question of the ability of the town to keep its highway in repair can not be raised and tried collaterally, in a suit against such town for damages for injuries received in consequence of a defect in its highways.</p> <p>The statute makes towns responsible for keeping their highways in “ good repair and suitable for the travel passing thereon.” This rule is not to be varied according to the wealth or poverty of the town.</p> <p>The inventory of the selectmen for a given year, or the amount of highway taxes assessed that year by any town, are not competent evidence to be received and considered, as affecting the liability of the town, in an action for damages for injuries received the same year, from a defect in a highway therein, and if received, such evidence would be likely to prejudice the jury.</p> <p>Where the injuries sustained were caused in part from a defect in the highway, and in part from such accidents as could not have been prevented by ordinary care and prudence, the town will be liable.</p> <p>In case for damages caused by alleged defects in a highway, if it appear that the vices of the horse or the defects in the carriage used by the plaintiff contributed to the injury received, the plaintiff, in order to recover, must not only show that he did not know, and had no reason to suppose that such vices or defects existed, but that he was in no fault in not knowing of their existence.</p> <p>It is for the jury to find whether timber, wood, lumber, or other materials placed within the limits of a highway, by any person, are, under the circumstances, to be regarded as obstructions or incumbrances in such highway.</p> <p>Lumber, wood, and other materials, when placed within the limits of a highway, in such a place or in such form or position as to be likely to frighten horses, may be an incumbrance to such highway, even though entirely out of the traveled track, and not upon any part of the road bed. But if it appear that the person placing or continuing such materials upon the highway was, at the time and in the performance of those acts, making such use of the highway as was, under all the circumstances of the case, necessary and proper, they would not then he an incumbrance.</p> <p>Ordinarily, where incumbrances or obstructions have been placed in a highway by individuals, and any one receives injuryin consequence, the town will he liable, in the first instance, to the injured party, and may have a remedy over upon the party causing the obstruction.</p>

<p>In estimating the damages to land-owners "by a new highway, the road commissioners should not deduct any thing on account of benefits and advantages not .peculiar to such land-owner but which are general, and shared in by the other land-owners in the vicinity.</p>

Case. The defendants demurred to the declaration, which was as follows : In a plea of the case for that the defendants heretofore, to wit, on the tenth day of February, 1859, owned, occupied, and were possessed of a certain railroad called the Northern Railroad, running from Concord, in the county of Merrimack and State of New-Hampshire, to a place called West Lebanon, in the town of Lebanon, in the county of Grafton, which railroad runs through the town of Canaan, in said…

Assumpsit, by James H. Kimball against Joseph M. Jackman, for $13, money had and received, and interest thereon. Writ dated September 9, 1859. Plea, the general issue. On the trial, it appeared that in the summer of 1853, the plaintiff, being indebted to one John H. French, placed in his hands, as security for his indebtedness to him, a young colt.

<p>A motion to dismiss an appeal from the decision of a commissioner on an insolvent estate, on account of the neglect of the appellant to furnish to the estate a bond of indemnity against costs, will not be granted if made after two continuances of the cause, a reference to an auditor and his report thereon.</p> <p>Upon the trial of such an appeal, the plaintiff relied upon and used before the jury, against the defendant’s objection, an account against the deceased, annexed to an affidavit filed by the plaintiff for the purpose of obtaining a jury trial after the coming in of the auditor’s report, which account varied in amount, in the number of items charged, and was in other respects different from the original account filed in the probate court, and used before the commissioner and the auditor. — Held, that this proceeding was irregular, and that the verdict should for this cause be set aside.</p>

<p>These were actions of assumpsit, brought by the plaintiff, H. C. H. Bliss, a resident of Boston, Mass., against the defendants, C. H. Brainard and Dr. Cummings, residents of Keene, in the county of Cheshire, to recover the pi’ice of spirituous liquors sold and delivered. Judgment being rendered in favor of the defendants, they each claim to tax in their bills of costs for the travel and attendance of one John T. Thayer, as a witness. The witness certifies in each ease that he traveled one hundred and fifty-five miles, and that he attended as a witness for and at the request of the defendant, in his action in Brainard’s case nine days, and in Cummings’ case fourteen days — his fees as taxed amounting in the former case to $29.85, and in the other to $36.10.</p> <p>To the allowance of these fees the plaintiff objects, and moves for their disallowance, alleging that the witness traveled but once, and that he attended the court but one term of fourteen days.</p> <p>The same counsel was retained and acted for the defendant in both cases, but nothing appeared to ■ show that the defendants were in any way connected with each other, either in the purchase of the goods or in the defense.</p>

In covenant. The declaration sets forth that whereas, on the 22d of September, 1854, the defendant, Samuel F. Spaulding, was joint owner with one Hubbard, of one undivided half of the Tip Top and Summit Houses, on Mount Washington, &c., and the plaintiff, Joseph S. Hall, owned three eighths, and N. Noyes one eighth of the same, held by them by the firm of Hall, Spaulding & Co., the plaintiff' Hall, on said 22d, &c., at, &c., by indenture between him and Spaulding, sealed,…

Scire facias on a recognizance against Cyrus Eastman and another. The jail of the county of Coos having been burned, an order was made by two Justices of the Supreme Court, agreeably to the statute, that prisoners, then or afterward ordered to be imprisoned within that county, should be removed to and confined in the jail at Haverhill, in Grafton county.

<p>A partner, dealing in tlie name of his firm, was inquired of by the party with whom he dealt, of what persons the firm consisted, and replied of himself and another, whose names he gave in writing. In a suit against the two as partners, they pleaded that there was another partner not joined, and the promises alleged were made by the three jointly. Upon issue .joined, the defendants were held to be estopped to prove the partnership to consist of three.</p> <p>Upon the trial of the above issue, it was held that the defendants had the right to introduce evidence bearing on the amount of damages.</p> <p>The verdict was that the two defendants did promise in manner, &c., as the plaintiff had declared against them, and it was held to include the finding of the issue.</p>

This was a petition for the abatement of taxes assessed for the year 1858.

This action was brought to recover the sum of $20,000, with interest from January 1, 1857.

Assumpsit on a note, dated March 13, 1860, signed by J. K. & S. Merrill, payable to the order of the defendant, George W. Ela, for $319.75, in two months, at either bank in Boston, and indorsed in… Held: because the note was mutilated by the erasure of the plaintiff’s name.

Suit for dower in certain premises in Concord, in this county. It was admitted that the demand for the dower was duly made on the 28th day of J une, A. D. 1856.

In equity. Tbe bill alleges that the plaintiff, on the 17th day of March, 1859, purchased of Jeremiah 8.

Assumpsit for money had and received. The plaintiff claimed to recover the sum of $300, paid by the plaintiff to the defendant for certain securities agreed to be assigned by the defendant to the plaintiff; and a substantial part of which the defendant, as the plaintiff' alleged, afterward refused to assign or deliver.

Assumpsit, on a note payable to the plaintiff, or order, for $25, dated January 1, 1859, and given by the defendant for liquors sold by the plaintiffs’ duly appointed and qualified agent, for the purposes specified in the act of July 14, 1855, for the suppression of intemperance. The liquors were sold on credit, the selectmen having made no regulation that sales should be made on credit or otherwise.

<p>If a highway be inclosed by an individual, and occupied by him adversely, uninterruptedly, and under a claim of right for more than twenty years, he will acquire a prescriptive right to the land, as against the public, and all persons claiming or justifying under any public right or easement in such highway.</p>

Assumpsit, for money expended and supplies furnished by the plaintiffs, for the support of Thomas Wait, a pauper, alleged to have his settlement in Newport. Writ dated January 4, ,1861. Plea, the general issue.

This was an action of assumpsit against Napoleon B. Conner, commenced November. 13, 1858, by the attachment of all the defendant’s real estate in Henniker, and entered at the March term, 1859, and notice was given by publication in the New-Hampshire Statesman, but no appearance was ever made by the defendant himself.

This is an action on the case for injuries caused by defects in a highway, and is submitted upon an agreed statement of facts, as follows: In 1852, Edwin Pierce, of Lawrence, Mass., bought of Jonathan Brown, of Andover, N. H., a wood and timber lot lying in said Andover, on tbe easterly part of Mount Kearsarge, for $>2000. Pierce mortgaged to Brown to secure the payment of tbe purchase money.

This is an action on the case for injuries to the plaintiff’s land and crops by cattle escaping into them, for want of the gates to which a way, laid for the accommodation of individuals, was made subject. The facts appear in the agreed statement reported in the suit between the same parties (ante, page 348).

This is an action on the case, against one to whom the applicant for a highway, laid out subject to gates and for the benefit of individuals, had conveyed the land through which the road passed, brought to recover damages for injuries by cattle to the plaintiff’s land, caused by not maintaining the gates. The facts are stated in the case of Proctor v. Andover.

The defendant was arrested upon the writ, the usual affidavit of concealment of property having been made in accordance with the statute. At the time.of the arrest he had a watch worth $25 hooked into his vest in the usual manner. He had in his pocket $21, which he had had by him six months.

Assumpsit, on the following note : “ $200. ' Salisbury, July 2, 1860. Five months after date we promise to pay to the order of J. H. Clement & Co., two hundred dollars, value received, with interest after. George W. Thompson, Joseph C. Thompson.” The note was indorsed by the payee to the plaintiff before it was due, having been discounted by the bank in good faith without notice of any defense.

<p>One Jeremiah P. Morey, owning a dog, engraved upon his collar the letters “ J. P. M.” He Id, that this was not engraving on the collar the name of the owner of the dog, within the meaning of the fifth section of chapter 127 of the Revised Statutes.</p> <p>Where the statute provides that “ no person shall be liable for killing any dog which shall be found not having around his neck a collar of brass, tin or leather, with the name of the owner or owners carved or engraved thereon,” actual notice of the ownership of a dog, found without such a collar, will not make a person liable for killing him.</p> <p>Such an enactment is not in conflict with the constitution of New-Hampshire.</p>

<p>Where a married woman purchased land and took a deed in common form to herself, and, at the same time, gave her note and mortgage, in which her husband did not join, to one K., who advanced a part of the purchase money, and the note and mortgage were assigned to the plaintiff, who alleged in his bill that K. was induced to loan the money on the note and mortgage by the fraud of the wife, it was held that, even if the facts were sufficient to create a resulting trust in the land to K.. no trust in the land resulted or was transferred to the plaintiff, by the assignment to him of the note and mortgage.</p>

<p>Where an action of review was referred under a rule of eourt, and the referees awarded that the original plaintiff should recover of the original defendant a certain sum as damages, together with costs of court, to be taxed by the court, &c., and that the same should be in full of all matters referred to them; Held, that this award was not a mere determination of the amount of damages, but was a decision upon the whole action of review, and that a judgment in favor of the plaintiff upon the report of the referees for the sum awarded, with costs, was not erroneous.</p> <p>Where a writ of review is sued out by the original defendant, and upon trial the amount of damages found for the original plaintiff is increased, such plaintiff is entitled, under the statute, to judgment for the amount of such increase, and costs.</p>

<p>Under the statute of 1846, a married woman can contract only in respect to property conveyed to her sole and separate use, free from the control and interference of her husband. She can not contract in anticipation of any such purchase to her sole use, &c.</p> <p>No action can be maintained against a married woman, upon any note or obligation, given by her for money hired as the purchase money of land to be conveyed to her sole and separate use, though it appears the money was in fact so applied.</p>

Trover for one horse. It was agreed that the plaintiff and one Frank S. Soule exchanged horses about the middle of September, 1859; that at the exchange of the horses Soule verbally agreed to give? in addition to his horse, crackers to the value of seventy-five dollars; crackers to be reckoned at market price, no particular time being fixed for their delivery; and it was then also verbally agreed that the horse received by Soule should be the plaintiff’s, until the crackers,…

<p>In indictments for conspiracy no overt acts need be set forth. The offense is complete on the consummation of the conspiracy, whether any overt acts have been committed or not.</p> <p>Nor is it necessary to allege or prove that the complainant or any person has been injured in any way by the conspiracy.</p> <p>It is not necessary to set forth, the particular rights, property, goods or chattels, of which the respondents conspired to defraud the complainant.</p> <p>In a common law indictment the words “ contrary to the form of the statute,” &c. may be rejected as surplusage, and a demurrer for that cause will be overruled.</p> <p>Ordinarily, an indictment will not lie for a conspiracy to commit a mere civil trespass to real estate.</p>

Assumpsit upon joint and several promissory notes, signed by the Union Stove Company, principal, and the four defendants, with three other persons, as sureties. The writs in the two actions were made out at the same time, by the same attorney, the notes declared on being due and in the hands of said attorney for collection.

Replevin, in which a lot of bricks were taken from the defendant, Daniel L. Stevens, which he had attached and taken on a writ against William Moore, and which were, by virtue of this writ of replevin, delivered to the plaintiffs as their property.

<p>One of several co-sureties on a promissory note represented to the defendants, two of the sureties, that he himself was a principal, and pledged to the defendant, Tilton, certain promissory notes, and among them the note of the plaintiff, who also was a surety, as security for Tilton’s liability, and at the same time informed Mooney that he also was secured hy this pledge. The plaintiff, who was another surety, afterward paid the whole debt, and relying upon the principal to repay him, sent the note so paid hy his father, who made the pledge, and with a knowledge of such pledge directed him to allow the defendants to take their names from the note. This was done, with the understanding of the plaintiff and his father and the defendants, that the note was thereby destroyed, and the defendants’ liability upon it ended; and thereupon Tilton surrendered to the father the notes so pledged. Afterward the plaintiff, failing to obtain payment of the principal, after notice and demand, brought these suits for contribution :—</p> <p>Held, that the plaintiff having, by his own acts, lulled the defendants into security, and caused them to give up the notes so pledged, was now estopped from setting up any claim for contribution against either defendant.</p>

<p>On a petition for a new trial or review, upon the ground, of accident, mistake or misfortune, it can be granted only by way of a writ of review, and without setting aside or vacating the judgment.</p>

Assumpsit, for refusing, on demand, to give the plaintiff) George W. Pinkerton, a certificate of twenty-nine shares of the stock of said road, and to pay bim the dividends on the same stock.

The complaint charged that the respondent, “ on the twentieth day of February, in the year of our Lord one thousand eight hundred and sixty, at the city of Manchester aforesaid, in the county of Hillsborough aforesaid, did unlawfully make a great noise, brawl and tumult, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state.” The respondent moved to quash the complaint, which motion being overruled, the respondent…

Indictment, for rescuing cattle being driven to pound. The indictment alleged that the defendant, on, &e., at Amherst, &c., “ with force and arms upon one John Haselton did make an assault, and did willfully, unlawfully and forcibly rescue from the possession of him, the said John Haselton, two red oxen, which he, the said John Haselton, was then and there lawfully driving to the pound in Amherst, in said county of Hillsborough,” &c. The indictment contained no allegation of…

<p>Where a party omits to assert his claim to one or more large sums of money, when all his demands are submitted to an arbitrator, such conduct is construed as an admission, to he properly used against him, when subsequently setting up a claim to the same money. Such conduct, however, is open to explanation by the party, as resulting from accident or mistake.</p>

This was an indictment for a simple assault and battery upon one Jane Elliott, by the defendant, Daniel Hodgkins. To this indictment the defendant pleaded not guilty upon his first arraignment; and when the case came on for trial, and the jury was empanneled, the defendant offered a plea of autrefois acquit, to which the solicitor objected, but the court admitted it.

Assumpsit, brought to recover the amount due the plaintiffs for professional services rendered to Ruth S. Holt under the following circumstances : Ruth S. Holt, the defendant’s wife, applied to the plaintiffs to aid her in procuring a divorce from the defendant, upon the ground of adultery.

<p>A demand of dower, under section 2 of chapter 205 of the Revised Statutes, is sufficient, if it apprise the tenant with reasonable certainty of the claim that is made upon him.</p> <p>The statute does not require that such a demand contain a statement of the legal measure of the dower; and the demand is not vitiated by the fact that such measure is incorrectly stated in it.</p> <p>Where a widow is entitled to he endowed of so much of a tract of land as will produce a yearly income equal to one third the yearly income of the tract at the time when her husband parted with his title to it, her demand of dower, if otherwise sufficient, is not vitiated by the fact that it requests the tenant to set out to her so much of the tract as will produce a yearly income equal to one third the yearly income of the tract at the time of the decease of her husband, as her dower in the same.</p>

<p>Indictment, for breaking and entering a building in the day-time and stealing therein. The tenth count describes the building as the railroad depot of the Nashua & Lowell Railroad and the Boston & Lowell Railroad, &e., and the money stolen as the property of these two corporations.</p> <p>The building in which the alleged larceny was committed is about eighty feet long by thirty wide, under one roof, used for a freight and passenger depot, connected with the "Wilton Railroad, in Milford, in said county. At one end of the building, extending across its entire width, is a room used as a passenger room for gentlemen, with two outer doors entering directly into said room. Adjoining this is another room extending part of the way across the width of the building, used for a ticket office, with a door of communication between them, and furnished with counters and windows opening into the gentlemen’s and ladies’ passenger rooms in the usual way, for the sale of tickets. The other space in the building is divided into two rooms, one for the ladies’ passenger room, and the other for a freight depot, with an outer door or doors opening directly into each, and a door of communication between the freight depot and the ticket office. Each of said rooms is partitioned off from the others, by partitions extending up to the ceiling, in the usual way of constructing rooms in dwelling-houses.</p> <p>It appeared that the respondent entered the building in the daytime, through the outer door of the gentlemen’s passenger room, which was then standing open, passed from that room into the ticket office by opening the door of communication between those rooms with a key, it then being locked, unlocked and took from a drawer in the ticket office a three dollar bill, which had been received on account of business done upon said railroad. The said railroad was at that time, and long before had been operated under a lease in writing to the Nashua & Lowell Railroad, and a contract in writing between said Nashua & Lowell Railroad, and the Boston & Lowell Railroad, each of said railroads being a separate corporation. It was admitted that the "Wilton Railroad had title to said building subject to said lease. The lease, contract and indictment may be referred to as a part of this case.</p> <p>James Blood was introduced as a witness by the government, and testified that he was employed as ticket-master and freight agent of the railroad at said depot, and was responsible for the money received on account of the business of the road; that he was employed by Mr. Stark, the general agent of said railroads, under an agreement that he was to attend to the freight and passenger business at the Milford station, sell tickets, collect bills, and be accountable for the money received; that he settled his accounts with the road monthly, and that he settled with the road up to the first of June, 1860, and accounted for all money received up to that time; that from the first of June, through that month and the following month of July, Charles F. Conant had charge of the station as ticket-master and freight agent for him (Blood), he having transferred the business to him, but without any agreement or authority to that effect from Mr. Stark or any other officer of said railroads, and that his (said Blood’s) relation to the roads and responsibility for the money under his agreement with Stark, were not in any way changed by this arrangement with Conant. The larceny of the three dollar bill was proved to have been committed on the 10th of July, 1860. TJpon these facts and evidence, the respondent contended that the charge for breaking and entering could not be maintained, on the ground that there was no proof of a breaking of the depot, and that the ticket-office is not within any statute of this state, which declares the breaking and entering of certain specified buildings, and stealing therein, to be an indictable offense, and further objected that if the indictment could be sustained upon those grounds, the facts and evidence did not sustain either count in the indictment in respect to the alleged ownership of the money stolen and the building broken. The court instructed the jury that if they believed the evidence, the respondent was guilty, and that they might return a general verdict of guilty upon all the counts, to which the respondent excepted. The jury returned a verdict of guilty. The respondent moved that the verdict be set aside and a new trial granted.</p>

The indictment charged that the defendant, on the 20th of October, 1859, at Exeter, with a certain knife which he had in his right hand, did make an assault on one Ezra S. Durgin, with an intent to kill and murder him. Durgin testified that at the time of the assault, and for several years previous, he was and had been one of the police officers of the town of Exeter.

Foreign Attachment, writ dated January 5, and served January 9, 1858. Charles H. Sides and Jenness were summoned as partners, and Jenness also as an individual. The trustees disclosed as follows : “ Int. 1. Had you, at the time of the service of the plaintiffs’ writ aforesaid, upon you, or since, any money, goods, chattels, rights or credits of the said William O. Sides in your hands or possession ? “ Answer.

<p>All conveyances, with a secret trust reserved to the vendor, are fraudulent and void as to creditors.</p> <p>And, where the trust is shown, fraud is an inference of law that the court is bound to pronounce.</p> <p>And it is immaterial whether the trust is express, or appears upon the face of the deed, or is implied from extrinsic circumstances.</p> <p>Such trusts are proved to exist, where the conveyance is absolute on its face, but with an agreement, either verbal or in writing, for a reconveyance upon some terms ;—</p> <p>Or where, upon an absolute sale of chattels, the use and possession is retained by.the vendor;—</p> <p>Or where, in an assignment in trust for the benefit of creditors, the payment of an annual sum is reserved to the debtor, or he reserves the power of revocation or appointment;—</p> <p>Or if the consideration of the conveyance, in whole or in part, is an obligation for the future support of the grantor ;—</p> <p>Or if, in case of an absolute sale of goods, it is agreed that the vendee shall sell them, and pay the proceeds, beyond a certain sum, to the vendor ;—</p> <p>In short, any secret trust whatever, either express or implied, by which the property is to be held, in any way, for the benefit of the vendor, is inconsistent with an absolute sale, and makes it, as matter of law, fraudulent and void as to creditors.</p> <p>Upon these principles, it is held that a conveyance, by a person in debt, in consideration of $500, advanced by the grantee, it being but part of the value of the property, to be held in trust, for the use of himself and his wife during their lives, without being subject to their debts, and, after the death of the survivor, to go to their children, on repayment of the money advanced, is fraudulent and void as to creditors.</p> <p>Where the property, which was situated in Massachusetts, was sold by the trustee, in pursuance of a provision contained in the original indentures, and the proceeds invested in the purchase of a farm in New-Hampshire, which was conveyed to him to hold as trustee under the same indentures, it was held that, being paid for by the avails of the other estate, and held by him as such trustee, the farm in New-Hampshire must be regarded as a substitute for the other, and as standing in the same relation to the original grantor’s creditors.</p> <p>It was also held that the trust being shown upon the face of the deed, and it appearing that the grantor was in debt at the time, the intent to defraud creditors was a conclusive presumption of law; and, therefore, the conveyance was void with respect to both existing and subsequent creditors.</p> <p>And it was further held that where the trust is admitted, or shown by the instrument of conveyance, or otherwise made to appear, an actual intent to hinder, delay and defraud creditors, is an inference of law, which is as effectual to avoid the conveyance as to subsequent creditors, as if found by the jury.</p> <p>Upon the extent of an execution upon land, in February, and an entry under it in the autumn of the same year, the creditor is entitled to the growing crop.</p>

<p>Where a justice of the peace lias jurisdiction to punish a contempt, his sentence will not he revised upon habeas corpus, either in respect to the sufficiency of the evidence or the application of the law; hut the proceedings will he examined only so far as to see that the magistrate had jurisdiction. Neither is there in such case a right of appeal.</p>

Assumpsit upon a note for assessments. The declaration set forth that the defendants, at Candía, on the 6th day of Novembei’, 1854, made their note or contract in writing, a copy of which is annexed to the writ, whereby, for value received, they promise to pay to the plaintiffs, or their treasurer for the time being, the sum of five hundred dollars, in such portions and at such times as the directors of said company should, agreeably to their act of incorporation and…

Assumpsit. The defendant pleaded, in abatement, that the summons delivered to him by the officer did not contain the substance of the writ, in this, that the defendant was described in the writ as of Stratham, in said county, and, in the summons, as of Portsmouth, in said county. To this plea the plaintiff demurred.

Petition for mandamus, setting out that the petitioner, Robert Lefavour, of Portsmouth, in said county, had been legally appointed collector of taxes in the city of Portsmouth, for the year 1860, and duly qualified; that by a warrant, duly signed by the mayor and aldermen of said city, and under the seal of said city, dated August 22, 1860, he was duly authorized to collect said taxes, and that the list of taxes for said year was duly delivered to him for collection ; that…

This was an action of assumpsit upon a promissory note, dated May 1, 1857, for tbe sum of $100, payable in one year from the date, with interest, alleged to be payable to Mrs. H. H. Boody, or order, and to be signed by Levi S. Bartlett as surety, and by Francis B. Smith as principal. The action was prosecuted in the name of Mrs. Boody, for the benefit of Mrs. Olivia E. S. Frink, who claims to be the party in interest and holder of the note.

Assumpsit. By agreement of parties this case was tried by the court and the following facts' found. The writ is dated February 8, 1859, and the action is upon four receipts, dated May 12, 1857, and signed by the defendants.