Volume 43 — New Hampshire Reports

Assumpsit upon two promissory notes, made by the defendant, payable to the plaintiff, or order, on demand, with interest, the first dated February 1, 1860, for $3,300, and the second, dated February 2, 1860, for $1,500.

<p>In this State a plea of non-tenure general is not made had upon general demurrer by the addition of an averment of possession and seizin in fee of the demanded premises, in the tenant’s wife, to her sole and separate use, free from the interference and control of her husband.</p> <p>Even if such seizin were insufficiently pleaded, the plea would he good on general demurrer, for non-tenure general being sufficiently pleaded, this additional averment might be rejected as surplusage.</p>

This was a real action, in which the plaintiff claimed one eighth of the premises in controversy, as one of the eight children and coheirs of Caleb Brown, deceased. The defendants claimed the whole of the premises as devisees under the will of said Caleb, deceased. It appeared that the deceased died seized of this and other contiguous real estate. He had eight sons and daughters living when lie made his will, or who had living representatives when the will took effect.

In Equity. The bill alleges that, September 20, 1850, the plaintiff bargained for a certain described tract of land, in the town of Greenland, for $850, to be .paid to the defendant, or order, as follows: “ $100 in six months from September 20, 1850, and the remainder in payments of $100 annually, till the whole should be paid, with interest annually after one year;” that on the same day he gave the defendant his note of that date for $850, payable as above, and the…

Case fq:v, obstructing a way. June 4,”1834, a committee appointed by tbe Judge of Probate to divide the real estate of H. Garland, deceased, between her daughters Ann and Sarah, divided a tract of land by assigning to Ann the south half, and to Sarah the north half and a privilege in the cart-path over the half assigned to Ann. The defendant owns the half assigned to Ann, and the plaintiff the half assigned to Sarah with its privileges and appurtenances.

<p>In Assumpsit, the plaintiff’s writ, dated July 16, 1860, contained a count for money had and received, $100.</p> <p>On the last day but one of the first term, the plaintiff placed on file a specification, as appeared by an entry on the docket. This specification described a promissory note of the defendant as follows:</p> <p>“ Boston, Nov. 16, 1854.</p> <p>$57.55. On demand, after date, I promise to pay to the order of Roberts & Farwells fifty-seven dollars fifty-five cents, payable at .-. Yalue i-eceived. Daniel Swain, Dover.”</p> <p>Indorsed “ without recourse as indorsers.”</p> <p>“Roberts & Farwells.”</p> <p>One of the defendant’s counsel had taken the specification from the files before the commencement of this term. The cause came on for trial on "Wednesday of the third week of this term. The plaintiff proposed to read to the jury the note mentioned in the specification, without first offering any evidence to prove the signatures of the note. The defendant objected, and insisted that the plaintiff, not having declared upon the note, was bound to prove its execution. The objection was overruled, and the plaintiff was permitted to read the uote to the jury. The defendant excepted to tbe ruling and proposed to offer evidence to show that the signatures were not genuine. The plaintiff objected, that he had had no previous notice by entry on the docket, affidavit, or other writing, that the signature was to be denied. The court held the evidence inadmissible, and the defendant excepted. A verdict was rendered for the plaintiff, which the defendant moved to set aside.</p>

Appeal &om the judgment of a justice of the peace. From the writ, returns, and record of the justice, it appeared that the plaintiff' ivas described as of Wolfborough, in the county of Carroll; the principal defendant as of Alton, in the county of Belknap; and the trustee as of Wolfborough. The writ was directed to the sheriff of the county of Carroll, or his deputy, or to any constable of any town in said county.

This was an action of detinue, brought to recover a house and barn alleged to be the property of the plaintiff and situated on the land of the defendant, in Farmington, in said county, all of which is fully set forth in the plaintiff’s declaration, which, is as follows : “ In a plea of detinue for that whereas the plaintiff heretofore, to wit, on the first day of July, 1856, at Farmington aforesaid, was lawfully possessed of a certain house and a certain barn, both situated…

Assumpsit. The writ was dated March 10, 1856, and served on the trustee the same day. The action, was entered August term, 1856. At the January term, 1858, the principal defendant was defaulted. At the Januaiy term, 1859, the plaintiff elected to try the liability of the trustee, whose .disclosure had been previously taken, by the jury.

In Assumpsit. The declaration set forth that on, &e., the plaintiff and the defendants were joint owners of certain goods and chattels (particularly enumerated), and of an account or demand in favor of Stone & Woodcock against Parker & Lane, for $688.66, and of certain other choses in action, to wit, demands of said Stone & Woodcock against divers persons, to the amount of $3000, conveyed to them by said Stone & Woodcock; that the defendants, as joint owners, had the care'…

<p>In an appeal from the decree of the judge of probate allowing the probate of a will, the heirs of the testator and the legatees in the will, not being appellants, though interested, are not parties in interest so as to be excluded from testifying as witnesses, though the executor does not elect to testify.</p>

Assumpsit. There was a plea of an award and performance thereof, a replication of corruption, gross partiality and misconduct of the arbitrators, and a demurrer to the replication.

<p>In dower, it is no answer to a plea that dower has heen assigned, that it was not assigned within thirty days after demand, if it appear that it was accepted.</p> <p>A plea that dower has been assigned by the tenant will he insufficient, if it is not alleged that the widow entered and agreed to the assignment, or that she accepted it, or that it was made to her satisfaction; or substantially to that effect.</p>

Case, for damage caused by defects in a highway. The parties and the cause of action are the same as in Haywood v. Charlestown, 34 N. H. 23, and the evidence there reported was introduced on the trial at this term. The plaintiff also introduced evidence tending to show that the selectmen laid out the highway upon a written petition, presented to them for that purpose.

Assumpsit, for bark sold and delivered. Payments had been made by the defendant, and the plaintiff claimed that $75 was still due. The defendant confessed judgment for $38.25, and the case was referred to an auditor, who found $56.17 due the plaintiff. Upon the motion of the defendant, who was dissatisfied with the auditor’s report, the case was tried by jury at this term.

Case, for slander. The words alleged in the declaration were, “Daniel Severance is a thief and a liar, and I can prove it.” Plea, the general issue, with a brief statement of justification.

Writ oe Entry, for a tract of land in Springfield, containing about thirty acres, and being part of lot No. 8, and lying northerly of and adjoining to Stony Brook road.

<p>Case, for so carelessly and improperly driving a horse and carriage in a highway, that the plaintiff, who was there traveling on foot, was put in peril, and obliged instantly to jump out of the highway into a ditch, whereby he was injured. The time of the transaction alleged in the declaration was July 2, 1859.</p> <p>It was not disputed that at some time in July, after or about sunset, the defendant, while driving a horse and carriage on the Croydon turnpike from Newport to Croydon, in company with Putnam and Patridge, who were riding in another carriage, overtook the defendant, and the defendant jumped from the highway into a ditch. But the speed and care with which the defendant was driving, the care exercised by the plaintiff, whether he was intoxicated, the distance between him and the defendant’s horse when he jumped into the ditch, the necessity of his jumping, and whether he was injured at that time, were matters in dispute. Various witnesses fixed the time of the transaction indefinitely within a few days or a week after July 4th. One Blake, a witness called by the plaintiff, testified that on the 13th day of July, in the evening, he met the plaintiff on foot, near the place where the defendant overtook the plaintiff', and that immediately after meeting the plaintiff he met the' defendant in one carriage, and two other men in another carriage.</p> <p>Subject to the plaintiff’s exception, one Marsh testified that in the fore part of July, just after sunset, he overtook and passed the plaintiff on the turnpike; that he did not drive fast or near the plaintiff; that the plaintiff staggered, and jumped out of the road into a ditch, and that, soon after the witness arrived at Croydon, the defendant and Putnam and Patridge came there. The ground of the plaintiff’s exception was, that the evening was not fixed by Marsh as the same on which the plaintiff was overtaken and passed by the defendant.</p> <p>A verdict was returned for the defendant, which the plaintiff moved to set aside because of the foregoing exception, and because of the misconduct, partiality, and previously formed opinions of certain members of the jury.</p>

<p>The plaintiff, Sarah Leazar, is an infant under twenty-one years of age, and Prank Leazar, who brings this suit as her next friend, is destitute of property, and irresponsible. The writ is indorsed by Sarah Leazar and Prank Leazar. At this term the defendant, upon proof of the irresponsibility of Prank Leazar, moved the court that the plaintiff be ordered to furnish a new indorser, which motion the court granted, subject to the plaintiff’s exception.</p>

Isr this indictment the first count alleges that on, &e., the defendants unlawfully conspired, &c., fraudulently to cheat and defraud D. Page of Ms money, &c., and, in pursuance of said conspiracy, did falsely and fraudulently cheat and defraud said D. Pago of a large amount of his property, &c., contrary to law, &c. The fourth count alleges that on, &c., the defendants unlawfully, &c., conspired to cheat I).

Indictment against Thomas D. Eorshner for rape, alleged to be committed September 2, 1860. The prisoner offered evidence in regard to the character of the prosecutrix for chastity. The court ruled that the witnesses must confine themselves to what they knew of her character prior to September 2, 1860, and not speak of any knowledge of her character since acquired, to which the respondent excepted.

<p>The petition of the town of Groton for tbe discontinuance of a highway was referred to the county commissioners, who made a report discontinuing the highway.</p> <p>A motion was made by the original petitioners to set aside the report, founded on affidavits of the county commissioners as to the grounds of their decision, and on affidavits of others relating the statements of the county commissioners, made to them in conversation on the same subject.</p> <p>The court fully heard the counsel for the parties, and considered the evidence offered by both parties, and was of opinion that the evidence sustained the exceptions, and ordered that the report be set aside ; but at the same time ordered that the'questions raised by said exceptions be referred to the determination of the whole court, with the right of either party to refer to and use the evidence taken in the cáse.</p>

<p>'William H. Duncan, administrator of the estate of Sarah Olcott, late of Hanover, in Grafton county, deceased, intestate, having been duly cited to appear before the court of probate for said county, at the September term, 1858, to render an account of his administration, and notice having been given to the heirs-at-law and all others interested, the said Duncan appeared, and the proceedings thereon being continued from term to term to the January term, 1859, the said Duncan filed the following account or statement:</p> <p>“ I have received, as administrator of the estate of the late Mrs. Sarah Olcott, of Hanover, in our county of Grafton, no property to which she was entitled as residuary legatee by the will of her husband, the late Mills Olcott, of said Han over, and I have no information, knowledge or belief that the- said Sarah Olcott, at the time of her decease, nor at any time since the decease of her said husband, has any other property or claim- to any other property except as said residuary legatee.</p> <p>And furthermore the estate of the said Sarah Olcott, if any such estate did exist, would be largely indebted to me in addition to other claims, for services rendered to a large amount to and-for said Sarah Olcott.</p> <p>Wm. H. Duncan.</p> <p>January term of the probate court, 1859.”</p> <p>Thereupon proceedings were continued from term to term till May term, 1859, when said Duncan filed the following amendments or statements:</p> <p>“ The account of William H. Duncan, administrator of the-estate of Sarah Olcott, late of Hanover, deceased.</p> <p>The said Duncan, administrator, charges himself with</p> <p>The amount of the personal estate of said deceased, 00.00</p> <p>Gain on the sale of the personal estate, by license, 00.00</p> <p>Cash'collected on notes, 00.00</p> <p>Cash collected on book account, 00.00</p> <p>Cash accruing from the sale of real estate by license, 00.00</p> <p>Gash collected as rents of real estate, 00.00</p> <p>Personal estate not appraised, 00.00</p> <p>Balance of interest account, 00.00</p> <p>[Note.] Said administrator has claims against said estate, and has paid out moneys and made expenditures in behalf of the same as administrator, but to what sums or amounts he is not now prepared nor able to state, nor does he deem it necessary, as he has received nothing and charges himself with nothing.</p> <p>¥m. H. Duncan.”</p> <p>At that term (May, 1859) said account or statement being considered and being supported by the oath of said administrator, &c., was duly allowed.</p> <p>Prom this decree of the judge of probate allowing this account, these plaintiffs, Jane E. Heydock, of Poughkeepsie, New-York, widow, and Edward R. Olcott, of the city of New-York, heirs-at-law of the estate of said Sarah Olcott, appealed to this court, and assigned the reasons of their appeal as follows :</p> <p>1. Because the judge of probate received the statement as an account, when in truth and law it was no account.</p> <p>2. Because the judge received said pretended account and allowed it to be passed as an account, without requiring an inventory to be first returned with the usual oath by an administrator to his inventory.</p> <p>3. Because the judge received said statement and pretended account in the place of an inventory, and as sufficient reason for not requiring the usual administrator’s oath upon the inventory.</p> <p>4. Because the judge received said statement or pretended account, as a sufficient form of inventory and account, in which the administrator states that he has “ received no property to which his intestate was entitled as residuary legatee by the will of the late Mills Olcott,” and that he “ knows no other property than that to which she was entitled as such residuary legatee,” without also requiring any oath from the administrator in conformity with section 1, of chapter 159, of the Revised Statutes, to the effect that no real estate, goods, chattels, notes, or other written evidences of debt, of the deceased, had come to the knowledge of the administrator, notwithstanding that this deficiency of the statement, to wit, that it did not negative such knowledge of property, was pointed out by the appellants.</p> <p>5. Because the statement is, as afterward appeared at the hearing in the probate court, a statement not of facts nor of actual knowledge, but a statement of the theory of the law as applied to certain facts which are not stated, and is at the best wholly argumentative.,</p> <p>6. Because Duncan having been inquired of, as to whether he, as the administrator of Sarah Olcott, had not, since his appointment as such administrator, given receipts for money or property to third parties, and having answered that he had, but undertaking in his answer to qualify this admission by statements to the effect that it was not property to which Sarah was entitled as residuary legatee of said Mills Oleott, but to which he, Duncan, was entitled as executor of Mills Oleott, the judge ruled that it was incompetent for the appellants for the purpose of charging the administrator in his account, to show his receipt of property or money as Mrs. Olcott’s property which had come to her under the supposition that she was entitled to it as residuary legatee under the will of her late husband, Mills Oleott, unless she were in law strictly entitled to receive it as such legatee.</p> <p>7. Because the judge, having in evidence before him the will of Mills Oleott, the husband of Sarah Oleott, and who died before her, and the bond filed in the probate court in said case, held that under the will and proceedings, Sarah Oleott did not acquire any property which, though remaining in her possession or seizin at the time of her death, the administrator was obliged to put into his inventory or account.</p> <p>8. Because the judge in deciding whether the administrator should be charged in the first instance with property of which at the time of Mrs. Olcott’s death, she was seized and possessed, and which was actually known to him, and which in fact had come to his actual possession, undertook to pass upon questions of the title to such property7 under the will and proceedings on the estate of Mills Oleott, without regard to such actual possession or seizin.</p> <p>9. Because the judge wrongfully allowed the paper filed by the administrator as an account.</p>

This was case brought by Martha A. Wyatt, to recover damages for the loss of the services, &c., of her late husband, Vanness Wyatt, alleged to have been unlawfully killed by the defendant.

Writ oe entry by T. W. Little, administrator of A. G. Britton, against Charles II. Riley, to foreclose a mortgage upon a farm in Orford, in this county, made and executed November 20, 1837, by Alexander S. Riley, to secure bis note of the same date for $2000, payable to Britton or order, in two years from date, at the Grafton Bank, Haverhill, N. H., with interest annually.

<p>This action was entered at the April Term, 1857, of the court of common pleas for said county, and was duly continued therein till the April term of said court of common pleas, 1858, when a trial was had, and a verdict rendered for the plaintiff. This cause was not, at the time of said trial, in the exclusive jurisdiction of said court of common pleas, but was an action over which the Supreme Judicial Court then had appellate jurisdiction. The plaintiff* did not take judgment at the term when said verdict was rendered, but continued said cause on his own motion for the reason that the liability of the trustees was undetermined, and has ever since continued the same for the same reason, and the liability of said trustees is still undetermined, and no judgment has been rendered against said corporation. The said corporation moved, for the purpose of saving its rights as affected by the, statute abolishing said court of common pleas, that the verdict be set aside, or that such other relief might be granted as, under the circumstances, might be proper; and the questions of law arising on the facts were reserved.</p>

<p>Where property (a -wagon and sleigh), advertised to be sold on execution, was delivered by a receiptor at his own house, and the sale being adjourned, was left by the side of the road, and partly in the traveled path, without any one being placed in charge of it by the sheriff; — Held, that the attachment was not thereby abandoned, and that the defendant knowing the purpose of the officer to sell the property was liable to him in trespass for taking it away.</p>

This was a writ of entry for a tract of land in Haverhill. The plaintiff claimed under an extent of execution against Hannah Bow, made October 28, 1853, and the defendant under a prior deed from Hannah Bow to Moses B. Hazeltine, of August 14,1852, and which title came to the defendant through Eleazer Smith, April 12, 1858.

This action was committed to a referee, who reported the facts as follows: Prior to May, 1859, and since that time, the defendant was and has been the depot master upon the Boston, Concord & Montreal Railroad, at their depot in Warren, N. H., and was during this time also the agent for Cheney k Co’s Express Company, doing their business at the same place; upon May 5, 1859, a package came into his office by Cheney k Co’s Express consigned to one Timothy Eitts Geralds, and…

<p>In general, where possession does not follow the sale, but remains with the vendor, such sale indicates a secret trust, and is colorable and fraudulent, and may bé so pronounced by the court.</p>

<p>Replevin for a pair of two years old steers, alleged to be tbe property of the plaintiff, Fanny D. Jordan, and wrongfully taken and detained by the defendant, Archelaus Cummings — commenced January 21, 1859.</p> <p>There was a plea and brief statement, setting forth that the defendant, as a deputy sheriff, attached said steers on a writ in favor of J. Cook against Lyman Jordan, the husband of the plaintiff, as his property, and alleging that said steers were not the property of the plaintiff'.</p> <p>The other facts alleged in the plea being proved, it appeared that the plaintiff was a married woman living with her husband. She claimed to own the real estate upon which they lived, in her own right, showing that she paid for it, through the assistance of her children, over twenty-one years of age, or after their time had been given them by their father. Upon this point there was a conflict of testimony, tending to show that the earnings or labor of the husband and of his minor children, to some extent, were applied in payment for the real estate. The husband was shown to have been an intemperate man for many years; but some part of the fruits of his labor, when sober, was devoted to the support of his family. For the last few years the real estate was not carried on by the husband, except for the year 1856-7, when he carried it on at the halves, though without any contract in writing.'</p> <p>As to the steers in question, it was shown that,-as to one of them, the plaintiff purchased it when about six months old, borrowing the money of her son-in-law Hicks, for which she gave her own note, which was paid to Hicks by one of her sons, who was over twenty-one years of age.</p> <p>The other steer was purchased of one Noyes. The bargain was made by the husband; but it was contended the plaintiff paid for it from her own funds. Both steers were kept on the placo, the plaintiff' contending that they were kept on her hay, as her husband sold his half off the place when he carried it on.</p> <p>The defendant objected that the evidence would not support the declaration; that the plaintiff should have declared as a married woman, holding the property in question to her sole and separate use, free from the control and interference of her husband; and moved for a nonsuit, or that a verdict be ordered for the defendant. The court declined to do this, and the defendant excepted.</p> <p>The defendant requested the court to instruct the jury that they must find that the plaintiff held the property in question by a conveyance or bequest to her, to be held to l^er sole and separate use, free from the interference or control of her husband; that if she held the property by a title that did not give her the right to so hold as against her husband, she could not maintain the action in her own name alone; that if she bought the property, or if it was given to her, and nothing was provided how she should hold it, it would he subject to the control of her husband if he should so elect; and the plaintiff could not sue alone for it, but might join with her husband.</p> <p>The court declined to charge the jury as requested, but did instruct them that the plaintiff could maintain her action for personal property belonging to her at the time of her marriage, or accruing to her in her own right subsequently, by descent, legacy, or gift, whether it consisted of specific property, chattels, money, or choses in action, if acquired independent of the aid of her husband, and her husband had not reduced it to his possession ; to which the defendant excepted.</p> <p>The court further instructed the jury that if, upon the whole evidence, they found for the plaintiff’for either or both of the steers, they would assess damages for the caption and detention of the property. If they found for the defendant, they would assess damages equal to the value of the property when taken.</p> <p>The jury returned a verdict for the plaintiff as to one steer, and assessed damages for the taking, and for the defendant for the other steer, and assessed its value as damages.</p>

Assumpsit on a count for goods sold and delivered by the plaintiff, James A. Pitkin, to the defendant. The plaintiff moved to amend his writ by inserting the name of Benjamin R. Gilman as a plaintiff, and declaring for goods sold and delivered by James A. Pitkin and Benjamin R. Gilman as partners under the firm and style of Pitkin & Gilman.

This was an action to review an action of assumpsit, the first count being on an account annexed, for two thousand telegraph poles, at twenty-five cents each, $500, and interest on the same, $50; and the second count for $550 for other two thousand telegraph poles,. bargained and sold by Bailey to Smith at his request. Original writ dated April 14, 1854, and the writ of review dated February 16, 1859. Plea, the general issue.

<p>This action is brought against the defendant as deputy sheriff for alleged misapplication of property in his hands.</p> <p>Dayton G. Piper and Moses B. Clough were engaged, in the partnership style of D. Gr. Piper & Co., as dealers in dry goods, &c., at Stratford, N. H., and in that capacity had purchased goods in Boston of the plaintiffs and others, and placed them in their store, for which they were indebted in a considerable amount. While engaged in their business, the sale of goods at Stratford, in their store, on account of some disagreement, the said partners referred the adjustment of their matters to the arbitrament of certain referees, who made an award, of which the following is a copy:</p> <p>“We, the undersigned arbitrators, chosen by Dayton G. Piper and Moses B. Clough, in company, of Stratford, N. II., to settle all demands, disputes, or controversies between them in regard to the final settlement, closing up of the business of the firm, and having all heard, examined, and considered evidence and witnesses of both parties, award that the said Piper shall be paid the sum of $233, to be deducted from the capital stock of the said Clough, amounting to $484.39. Said Piper is to have all the goods and all the fixtures and store furniture, and all moneys on hand, and all accounts and demands due or belonging to said firm, and is to pay all demands against said firm, and also pay said Clough the balance of his capital stock, amounting to $251.39.”</p> <p>The parties also signed an agreement to abide by the above award.</p> <p>This award having been rendered, certain creditors of the said Piper, in his individual capacity, placed writs in the hands of the defendant in this case as deputy sheriff, and he attached the goods in said store upon said writs as the property of Piper. Soon after, certain creditors of D. G. Piper & Co., among whom were the plaintiffs in this action, placed their writs in the hands of said officer, and he returned said goods as attached as the property of said D. G. Piper & Co., subject to his other attachment as the property of D. Gr. Piper alone. Said writs were entered in court and prosecuted to final judgment, and all tlie executions, both those of the individual creditors of Piper and the company creditors of D. Gr. Piper & Co., duly placed in the hands of the defendant, to satisfy the same from the proceeds of the goods in said store; whereupon the said sheriff, having sold the said goods on the writs in said actions, and the proceeds being claimed on the one hand by the creditors of said Piper, and on the other by the creditors of said D. Gr. Piper & Co., ou being indemnified by the former, applied the same in satisfaction of the executions in favor of the individual creditors of said Piper, and returned the executions against the said D. Gr. Piper & Co. unsatisfied. Por his default in this respect, this action * is brought; the plaintiffs claiming that said goods, being the property of said D. Gr. Piper and Co., did not pass and vest by virtue of said submission and award, and so become the property of D. Gr. Piper alone as to be liable to be taken in discharge of the individual debts of said Piper before the partnership debts of saidD. Gr. Piper & Co. were satisfied. Piper never has paid any of the demands against said firm, or the balance to the said Clough as required by the terms of the aforesaid award.</p> <p>It was agreed that if the court should be of opinion that the proceeds of said goods should have been applied on the executions in favor of the partnership creditors of said firm in preference to those in favor of the individual creditors of said Piper, then judgment should be rendered against the defendant for the amount of the execution of said plaintiftj and interest, so far as the amount of said proceeds in his hands were sufficient to satisfy the same; otherwise for the defendant, reserving also to either party the right to a trial by jury.</p>

<p>This was an action of debt on a bond. The writ w7as dated December 8, 1855. The plea was non est factum, with a brief statement of the defense, and with the bond wrns made part of the case.</p> <p>Dor several years previous to October 25, 1834, Rufus Brockway had been in possession of certain lands in Indian Stream Territory (now Pittsburg), and by deed of that date he conveyed the same to David Tyler and Amos Tyler, an undivided half to each. Amos Tyler conveyed his half to Daniel Whipple; and Daniel Whipple conveyed the same to the plaintiff) and for a long period of time previous to 1837 David Tyler and the plaintiff' occupied said lands together. David Tyler left the land and went to live at Piermont about the year 1835, and he conveyed his title in and to the lands to the town of Piermont by deed dated March 15, 1837, which deed contains a proper description of the land.</p> <p>The town of Piermont, by their agent, Moses Learned, took possession of the land and leased it, as appears by said Learned’s deposition. The plaintiff conveyed the land to the defendant by deed dated October 1, 1840.</p> <p>The defendant sold his interest in about half in value of said lands, and conveyed the same by quitclaim deed to Ira C. Bowen by deed dated April 1, 1843. Said Bowen gave the defendant a mortgage of the same date to secure the purchase money. The defendant by deed dated May 13, 1843, conveyed about half in value (being the rest of the lands) to Israel W. Tyler.</p> <p>Eri Whipple paid the mortgage of said Bowen to the defendant, and the defendant gave said Eri Whipple a quitglaim of the land, dated July 31,1846, and delivered said Bowen’s notes to said Whipple. While said Bowen held title to said land, he procured a deed from the town of Piermont, dated November 27, 1844, and to secure said town for the purchase money gave notes of $25 each which were secured by a mortgage of said lands to said town.</p> <p>As a consideration for the plaintiff’s deed aforesaid, the defendant gave the bond in suit, and also conveyed to the plaintiff' his (the defendant’s) interest in a certain lot of laud in Compton, in Canada, called a Clergy lot.</p> <p>Upon the giving of the bond the plaintiff' entered into possession of the lot of land in Compton, therein described, and occupied and had the possession and use of it for about ten years, but he had left it before the defendant conveyed it as hereafter mentioned. The deposition of Ira C. Bowen, so far as pertinent to this case, was to be taken as true and may be referred to, and it was agreed, for the purpose of the case, that the request therein mentioned made by said Webster as to the removal of the claim of Piermont was made two or three days before the defendant conveyed the land in Compton as heretofore stated.</p> <p>The defendant, for the consideration of one hundred pounds ($400), by deed dated May 15, 1854, conveyed the lot in Compton, mentioned in the bond, to Richard Baldwin.</p> <p>Eri Whipple paid the town of Piermont forty dollars for said mortgage and notes of Bowen about the year 1848, and took a delivery or assignment of them.</p> <p>The plaintiff, seven years prior to the spring of 1861, paid said Whipple $24 toward said $40, and promised to pay the balance at some time.</p> <p>The condition of the bond recited the conveyance by the obligee of a lot of land in Indian Stream, now Pittsburg, to the obligor, and bound the latter and his representatives to convey another lot of land in Compton, Canada East, to the obligee, when he should extinguish the title of the town of Piermont to the Pittsburg land.</p> <p>The ease came up on an agreed statement of facts, with liberty to refer to certain depositions, and with provision for a trial by jury if desired by either party.</p>

<p>A mistake in the publication of a notice for the purpose of foreclosing a mortgage, in substituting the word mortgagee instead of mortgagor, is material, because liable to mislead, and such publication does not" constitute a legal and requisite notice in such cases.</p> <p>Where the mortgagor makes a tender for the redemption of the mortgage, and by mistake a California gold piece, estimated at §20 is embraced in the specie so tendered, a court of equity, in their discretion, can grant relief and prevent the forfeiture of the estate upon a full compensation to the mortgagee in the form of a subsequent legal tender of the debt and interest, and full costs of the proceeding.</p>

Trespass, for the seizure and sale of a cow by the defendant, as sheriff, on an execution in favor of one Bailey against Alpheus Hutchins, the plaintiff’s husband. No question was made as to the form of the execution or the formality of the defendant’s proceedings. The action was referred under an agreement that all questions of law arising in the case should be submitted to the court.

<p>An attachment of property on mesne process is not dissolved by the death of the debtor after judgment and before sale of such property.</p> <p>And where the property was receipted for, if demand be made on the receiptor within thirty days after judgment, he will be held for the property, even though the debtor died before such demand, if the death was after judgment.</p> <p>Whether if the estate were decreed to be administered as insolvent, after the death of the debtor, and before such sale or demand, it would alter the case, qucere?</p> <p>If a receiptor for property attached allow it to go back' into or to remain in the hands of the debtor, and he sell it, the receiptor will be liable. Having entrusted the property to the debtor, he will be responsible to the sheriff for the debtor’s acts.</p>

<p>Libel for divorce.</p>

Petition of the selectmen of Northfield for compensation for the support of Elliott Durgin and wife, and Winthrop M. Sewall, paupers resident in said Northfield, and alleged to be chargeable to said county of Merrimack. _ Prior to the passage of the act of July 4, 1861, Durgin and wife had a settlement in Bristol, in the county of Grafton, by virtue of said Durgin’s having been elected and serving one year as one of the selectmen of that town, and had been supported by…

The facts iu this case are stated in the case that was transferred at the February term, 1861, and the accompanying report, upon which the court, at its law term, June, 1861, ordered that the action be dismissed, which entry was made at the trial term in August, 1861. The prior decision is reported in 42 N. H. 341. Sarah II.

<p>Assumpsit, in which the plaintiff seeks to recover the amount due on two promissory notes, each reading as follows, to wit:</p> <p>“ June 15 1860</p> <p>“ For value received I promise to pay Ira Shaw or order five hundred dollars on demand with interest annually payable in four months from date .Geo. W. Shaw”</p> <p>The parties agreed that judgment should be rendered for such an amount on said notes as the whole court should determine, and the questions of law were reserved.</p>

This is a writ of entry for premises set off to this plaintiff, upon an execution against the defendant for §95.96, being part of premises occupied by the defendant as a homestead, the whole being worth §450. The defendant and his wife claimed the same as a part of their homestead, and made due demand upon the officer to set it out to them, according to the statute, which he refused to do.

The parties agreed to tbe following facts : This is an action of assumpsit, to recover for loss and damage by fire. On the 12th day of May, 1858, a policy of insurance was made at the office of said company of $350 on the plaintiff’s dwelling-house, and $50 on household furniture therein.

Foreign Attachment. The principal defendants, Thomas Clough and others, made no defense, and the trial was to determine the liability of the trustees, David M. Clough and others.

<p>Assumpsit, to recover $4000 upon the common counts, and $1559.50 according to an account annexed to tlie writ. The plaintiff was a citizen of New-Hampshire, and the defendant of Massachusetts, and they are so described in the writ.</p> <p>It was admitted that the matter in dispute, involved in the action between the parties, exceeds the sum of five hundred dollars, exclusive of costs.</p> <p>The action was entered at the August term of this court, 1859, and no service of the writ having been made upon the defendant, it was continued for notice, and the order of notice was duly complied with by personal notice to the defendant in September, 1859. Before the next session of the court, the parties entered into an agreement in writing concerning the submission to referees of all controversies and disputes existing between then! at the date of such agreement, except such as were in and by said written agreement expressly excepted; and in and by said writing it was expressed that “the action heretofore commenced by saidRobinson against said Potter, and now pending in the Supreme Judicial Court for Merrimack county, N. H., shall remain on the docket of said court until the final determination of said arbitrators and the final settlement of their award, without any action therein by either party, it being distinctly understood that the matters and causes of action involved in said suit are covered by this submission, and if finally determined by said arbitrators, as herein provided, said action is thereupon to be dismissed.”</p> <p>Subsequently, a hearing before the arbitrators was had, but the referees being unable to agree, no award was ever made. At the February term of this court, 1860, the action, with the knowledge of the defendant and in pursuance of said submission, was marked upon the docket, “referred.” The action was continued to the August term, 1860, and during the session of this term, August 31, the defendant never having entered any appearance in the action either pro se or by attorney, George, Foster & Sanborn, attorneys of the court, by consent of the plaintiff’s attorneys, entered their appearance for the defendant, and at the same time, by agreement of counsel, “leave to amend” was granted to the plaintiff, but without application to or order of court. Subsequently, but on tbe same day, the defendant’s counsel filed in court the petition in writing of the defendant, praying that the action might be removed for trial to the next circuit court for the United States, to be held in the district of New-Hampshire, and in and by said written petition, but in no other way or form, tendered and offered good and sufficient security for his entering in such circuit court of the United States, on the first day of its session, copies of the process against him, and for his there appearing and entering special bail in the cause, if such should be required, and to conform in all other respects to the statute in this behalf made, namely, a law of the United States passed September 12, 1789, sec. 12.</p> <p>Subsequently, during the term, a hearing was had on said petition, when the plaintiff’s counsel objected to the allowance of the prayer thereof, among other grounds, because there had been no sufficient tender of the security required by the law in such cases; and thereupon the defendant’s attorneys then and there verbally offered to the court to furnish such sureties or security as the court should order in the premises, sufficient sureties being then and there present in court; but the court refused to transfer said action to the circuit court of the United States, and upon motion of the plaintiff’s attorney, the defendant’s said attorneys objecting, appointed an auditor in the ease, and continued the same to the next February term of this court; to which ruling and orders of the court the defendant, by his counsel, excepted.</p>

<p>The articles of a voluntary association declared it to be formed “ for the purpose of accumulating a fund for the purchase of real estate, making improvements thereon, and removing incumbrances therefrom, and for the purpose of accumulating a fund to be returned to its members who do not obtain advances as above mentioned, when the funds of the association” should “ amount to §500 per share”; and fixed the number of shares at 1200, of which 400 were reserved “ for the accommodation of members” wishing “ to obtain larger loans than” could “ be obtained on the shares previously held by them.” They provided for the payment by each member of “ an entrance fee,” and also the sum of $2 monthly for each share he might hold daring the continuance of the association, and for specified fines for each month’s neglect to pay the monthly dues upon any share. They also provided that whenever the funds of the association should amount to §500, that sum should be “ put up to competition,” and the member offering the highest premium should have it for the purpose of building, &c., upon giving his bond, secured by mortgage of the real estate, for the payment of his monthly dues and fines, and the interest which, under the name of “ a redemption fee,” was to be paid monthly at the rate of six per cent per annum. Bach member could have but ten shares, and he must be or become a subscriber for one share for every sum of $500 thus bid off by him, and pay the dues thereon. The articles also contained provisions for the redemption of the mortgaged premises “ by the payment of an amount to be determined by the directors”; for the investment of the funds “ not required for advances to members”; and for the termination of the association whenever its funds should be sufficient to pay all liabilities and $500 on each “unpurchased share”; in which case the debts -were to be settled, and such dividend made to the holders of such shares, and no further monthly dues were to be paid. Where, agreeably to these articles, a member of the association owning ten shares, upon bidding off ten such sums of $500, received therefor, after the deduction of the premiums, $2110, and gave his bond and mortgage to secure the payment by him to the association of the interest on the $2110 monthly, and the monthly dues upon his ten shares, and his fines according to the articles:—</p> <p>Held, that the contract was not usurious, unless it was in fact a device to evade the statute as to usury; that whether it was such a device was a question of fact; and that from the mere terms and provisions of this contract the court could not, as matter of law, hold it usurious:—</p> <p>Held, also, that where the condition of such mortgage had been broken, the plaintiffs, to whom it had been executed as trustees for the association, in an action upon the mortgage, wore entitled to a conditional judgment for the full amount due according to the terms of the condition, as the contract was not upon its face usurious, and had not been shown to he so in fact.</p>

Petition of Goffstown for leave to discontinue a road laid out on the petition of Eliphalet Jones and others.

Debt on a bond of indemnity. ,jPlea, the general issue and non damnificatus. In December, 1852, one Albert- S. Conner was in trade in Chicopee, Mass., and the defendant, A. II. Bean, having a note against him for $125.61, dated January 14, 1852, payable on sis months, December 9, 1852, sued Conner in the court of common pleas on said note, returnable on the second Tuesday of March, 1853.

Assumpsit upon a promissory note for §46.11, dated. January 17, 1859, signed'by tbe defendant, payable to his own order, on demand, with interest, and by him indorsed, delivered to the plaintiff. Writ dated March 16, 1859. Plea, the general issue.» TJpon the back of the note the plaintiff had indorsed §26.11, March 16, 1859, and he claimed to recover the balance due upon it.

<p>In June, 1858, Edward Richardson, the defendant, was a surveyor of highways in a district in the town of Mason, legally appointed ; while acting in that capacity and in good faith repairing the highway in his district, he plowed out a ditch beside and in the highway in front of the plaintiff’s house. This action was brought in trespass to recover damages from making said ditch. The defendant contended that in his capacity as highway surveyor he might of right do what he did, and that if thereby the plaintiff was damnified the town was liable to pay the damages and not himself, and that the only method of assessing them is pointed out by the 19th and 20th sections of chapter 725 of the laws of 1848, and that he could not be considered a wrong-doer, and the action could not be maintained against him. The plaintiff contended that the defendant, under the circumstances above stated, was a wrong-doer, and the action properly brought. A nonsuit to be ordered, or a judgment as on a verdict for two dollars, damages and costs to be ordered.</p>

Upon tbe trial of tliis action, it became a material question whether thei’e had been such a demand of rent and such a neglect to pay as would justify a seven days’ notice to quit, under the statute in relation to landlords and tenants. The plaintiff had been notified to quit on the 20th of May, 1857, by a notice which was served on the 12th of that month.

Trespass quare clausum fregit and for cutting down and carrying away ten acres of the plaintiff’s grass. Plea, the general issue with a brief statement.

This was a review of an action of trespass, for breaking and entering the house of the plaintiff, situated in Barnstead, in this county, and tearing off the outer boards and covering of the same, demolishing the inside partition, doors, plastering, chimneys, &c., on the night of the 7th of October, 1858. The defendants, eight in number, confessed'as damages, $40, and pleaded the general issue'as to the residue.

<p>Indictment of three counts, substantially charging that the respondent, on the 20th day of June, 1861, with force and arms, at Upper-Gilmanton, did make an assault upon one Lucien Dicey, and with a gun charged with powder and hall did shoot at and wound said Dicey, feloniously, willfully, and of his malice aforethought, intending him to kill and murder.</p> <p>The defense of the prisoner, in part, was, that at the time of the supposed commission of the offense he was a monomaniac upon the subject of the infidelity of his wife, imputing an improper connection between her and the said Dicey.</p> <p>IJpon this part of the defense, the counsel for the prisoner requested the court to charge the jury,</p> <p>1. “That if upon the whole evidence they are of the opinion that it was more probable that the prisoner was insane so as not to he responsible for his acts, than that he was sane, they ought to find Mm not,guilty by reason of insanity.</p> <p>2. That though if the jury find the prisoner committed the offense, the burden of proof is on him to remove the natural presumption of sanity, yet that the jury must be satisfied beyond a reasonable doubt that he was a sane man and responsible for his acts, or it is their" duty to find him not guilty, by reason of insanity.”</p> <p>Among other things, the court did say to the jury: That a man is not to be excused from responsibility, if he has capacity and reason sufficient to enable him to distinguish between right and wrong, as to the particular act he is then doing. He must have a knowledge and consciousness that the act he is doing is wrong and criminal, and will subject him to punishment. In order to be responsible, he must have sufficient power of memory to recollect the relation in which he stands to others, and in which others stand to him; that the act he is doing is contrary to the plain dictates of justice and right, injurious to others, and a violation of the dictates of duty.</p> <p>On the contrary, although the person may be laboring under partial insanity, if he still understand the nature and character of his act and its consequences, if he has a knowledge that it is wrong and criminal, and a mental power sufficient to apply that knowledge to his own case, and to know, if he does the act, he will do wrong and receive punishment, such partial insanity is not supposed to exempt him from responsibility for criminal acts. If it be proved to the satisfaction of the jury, that the mind of the accused was in a diseased and unsound state, the question will be, whether the disease existed to so high a degree that, for the time being, it overwhelmed the reason, conscience, and judgment, and whether the prisoner, in committing the act, acted from an irresistible and uncontrollable impulse.</p> <p>If so, the act was not the act of a voluntary agent, but the involuntary act of the body, without the concurrence of the mind .directing it. Every man is to be presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to the satisfaction of the jury, and to establish a defense on the ground of insanity, it must be clearly proved that, at the time of committing the act, the party accused was laboring under such a defect of reason from disease of mind as not to know the nature and quality of the act he was doing, or, if he did know it, that he did not know what was wrong; that he was unable to discriminate between right and wrong; that he was not therefore a moral agent, responsible in a legal sense for his acts, and a proper subject for punishment. One kind of insanity known to our law was “ monomania,” where the mind, in a diseased state, broods over one idea, and can not be reasoned out of it; and in this case, in order to find the act of the prisoner, if committed by him, to be not criminal, the jury must be clearly satisfied it was the result of the disease, and not of a mind capable of choosing; that it was the result of uncontrollable impulse, and not of a person acted upon by motives, and governed by the will.</p> <p>On the other hand, it devolved upon the State to show that the prisoner committed the act as charged, with the malicious intent to kill; and that the jury must be satisfied of the existence of such malice, at the time, beyond a reasonable doubt, in the prisoner, and that he had a sufficient degree of mental capacity or sanity, as to render him a fit subject of punishment upon the principles before suggested.</p> <p>The court declining to charge otherwise than as before stated, the counsel for the prisoner excepted. The jury having rendered their verdict against the prisoner, he moved that the verdict be set aside, and for a new trial.</p>

In this case the defendant filed a plea in abatement, as follows : And the said Bemick comes and defends, &c., when, &c., and prays judgment of the writ aforesaid, and that the same may be abated because, he says, that on the fourteenth day of October, 1857, he, the said Bemick, was sheriff of the county of Carroll; that he continued so to be the sheriff of said county from that time until a long time after the defaults, wrongs, and grievances, set forth in the plaintiff’s…

<p>"Writ of Entry. Plea, the general issue. The plaintiff made title to the demanded premises, under a mortgage to himself from one Lamprey, dated November 26,1856, and recorded, having been received for record November 27, 1856, at fifteen minutes past 7 o’clock A. m. Its condition was, “ If the said Lamprey shall, within three years, indemnify said Gilman against all loss,” &c., “ to which he may be subjected by reason of signing a note to Nathaniel Davis for $60, with interest, at the request of said Lamprey, as his surety,” &c.</p> <p>The plaintiff testified that he never signed any $60 note with Lamprey ; that he signed but one note with Lamprey, and as surety for him, and that was payable to Nathaniel Davis ; that he could not give the exact date of it, but it was dated sometime in July, 1855, according to his recollection; that he signed it, in fact, as surety for Lamprey, but he thought the word “surety” was not on the note ; that this note was for $71, payable on demand, with interest, but he could not tell whether annually or not. It had been previously admitted by the defendant that this $71 note had been destroyed by a fire.</p> <p>To the foregoing evidence the defendant objected, upon the ground “ that there was a substantial variance between the note, described in the condition of the mortgage, and the note proved.” The court overruled the objection and admitted the evidence, and the defendant excepted.</p> <p>The defendant introduced, without objection by the plaintiff, certain admissions of the plaintiff that he had signed a $60 note, payable to Nathaniel Davis, as surety for Lamprey, and also that his claim under the mortgage was founded upon a $60 note, and that the note which the mortgage was given to indemnify him against was as described in the condition of the mortgage, as evidence tending to show that such a note as was described in the condition of the mortgage was outstanding at the time of its execution. Upon this branch of the case, the court, among other instructions given to the jury, charged them that if, at the time of the execution of' the mortgage, there was outstanding a note for $71, payable to Nathaniel Davis, with interest, signed by Lamprey, and by the plaintiff as his surety in fact, whether it appeared on the note that he was surety or not; and if that was the only note payable to Nathaniel Davis, signed by Lamprey and the plaintiff, outstanding at that time, then that would be the note the plaintiff’ was indemnified against by the mortgage; but if there was, at the time of the execution of the mortgage, outstanding, a note for $60, payable to Nathaniel Davis, with interest, signed by Lamprey, and by the plaintiff as his surety in fact, whether it appeared on the note that he was surety or not, then the $60 note, and not the $71 note, would fie the one against which the plaintiff was indemnified by the mortgage — to which instructions the defendant excepted. Lamprey, who was living at Alton, was not called as a witness by either party, and Nathaniel Davis was dead. In the course of the trial, the defendant produced a paper which he testified was handed to him by Lamprey ; and the defendant’s counsel proposed to ask the defendant, “ Whether, when he presented to you the note, Lamprey stated to you what signatures were originally upon the note?” also, “’Whether Lamprey presented this note or represented it as the $60 note described in the plaintiff’s mortgage?’’ also, “Whether Lamprey represented that he had paid the note to Nathaniel Davis and taken it up?” — to each of which questions the plaintiff objected, and the court sustained the objections, and did not allow the questions to be asked; and the defendant excepted. Thereupon the defendant offered the paper itself as evidence. It read as follows:</p> <p>“ Alton, May 8, 1855.</p> <p>“Dor value received, we jointly and severally promise to pay Nathaniel Davis, or order, sixty dollars on demand, with interest annually.”</p> <p>The usual place for signature was torn off. The court sustained the plaintiff’s objection to this paper, and rejected it; and the defendant excepted.</p> <p>The defendant introduced his title as purchaser of the equity of redemption in the demanded premises, under a deed from Lamprey, dated July 7, 1857, and as assignee of two mortgages of the premises, each dated November 26, 1856, and recorded, each having been received for record November 27, 1856, at fifteen minutes past seven o’clock A. M.: one from Lamprey to Hinckley, with the condition that, “If said Lamprey shall, within one year, indemnify said Hinckley against all loss,” &c., “to which he may be subjected by reason of signing a note to John Smith, for $112, with interest, at the request of said Lamprey, and as his surety,” &c.; the other from Lamprey to Flanders and others, with the condition that, “ If said Lamprey shall indemnify, within two years from the date hereof, said grantees against all loss,” &c., “to which they may be subjected by reason of signing a note as sureties of said Lamprey, dated November 27, 1854, for $84.85, with interest annually, at his request, payable to Jeremiah Gilman,” &c.</p> <p>Question was made whether the three mortgages were simultaneous, or if not, which was prior in its execution and delivery; and upon these points some evidence was introduced. The defendant asked the court to instruct the jury that, in determining those questions as to the priority of the mortgages in execution and delivery, they might consider the times fixed in the conditions of the respective mortgages for the performance of the conditions, as evidence upon these questions of priority. The court declined to do so, and instructed the jury that the circumstance of such different times being so fixed was not competent evidence upon the questions whether either, and' if either, which mortgage was executed and delivered first; to which the defendant excepted.</p> <p>The jury returned a verdict for the plaintiff, which the defendant moved to set aside.</p>

This was an action of assumpsit, commenced by J. S. Wells, deceased, and prosecuted by his executors, Henry B. Wells, and others. The plaintiffs claimed to recover $62.55, being the amount of his fees, costs, and disbursements in the suit S. Gordon v. B. S. Clifford, in which judgment was rendered at the February term of the court of common pleas, in 1855. On this judgment Mr. Wells claimed to have a lien as attorney for the plaintiff.

In Equity. The bill set forth that, on the 30th of August, 1854, the plaintiff, Thomas Bassett, was lawfully seized of certain lands described, consisting of eight tracts, partly in Kingston, East-Kingston, and Newton.

<p>A note, signed by two partners with their individual names, is sufficient to bind the firm.</p> <p>The substitution of such a note for one signed with the name of the firm, after the partnership is dissolved, does not necessarily make it an individual debt, if there was no intention to change its character.</p> <p>It is not necessary to declare upon a partnership note as such, unless its form is such as to render it necessary to prevent a variance.</p> <p>In a trustee process it may be material, and is therefore competent, for the parties to inquire whether or not the note is an individual or a partnership note, in order to ascertain its priority, if any, over other liens.</p> <p>The true relations of the parties to negotiable paper may always be shown, except against those who have without notice acquired rights depending on their apparent relations.</p> <p>It is the duty of counsel to see that no improper papers are sent to the jury.</p> <p>The omission to give a particular instruction to the jury is not cause to set aside a verdict, unless such charge was requested.</p>

<p>Assumpsit by Arthur Wiggin against the Regular Baptist Society in Stratham, for money paid and for labor and materials in building a fence between the lands of the parties, in pursuance of a report of the fence-viewers of the town.</p> <p>The defendants’ land was a square lot, containing about twenty-four square rods, bounded on one side by a highway, and on the other sides by land of the plaintiff'. The defendants owned and occupied a church on their lot, and occupied the lot only for the ordinary purposes incident to the use of a church. The lot has not been fenced on the side next the road since the defendants have owned it. There has been a fence on the other sides, to which persons attending the church hitched their horses. The defendants graded the surface of the -lot when the church was built, and have occasionally filled up holes. Some ornamental trees had been set upon it by members of the society, but none by direction of the society or its committee.</p> <p>The plaintiff’s land adjoining was a nursery. Persons going to the nursery sometimes drove their horses on to the church lot, and hitched them to the fence ; and the-plaintiff' frequently went across the lot to and from his nursery, had a pair of bars in the fence, and on a few occasions packed and unpacked trees upon the lot, a very few times leaving boxes and straw, in which the trees had been packed, upon the lot for more than a day at a time.</p> <p>The defendants objected that their lot was not under improvement, that they had laid it in common, and that they were not bound to build or repair a partition fence between them and the .plaintiff</p> <p>The case was tried by the court, and many exceptions were taken to the proceedings of the fence-viewers, which are not reported, the decision upon the question of liability to maintain the fence being decisive of the action.</p>

In Equity. The plaintiffs, Richards & Greenough, allege in their bill that, in April, 1856, they were insured by the New-Hampshire Mutual Eire Insurance Company, of which the other defendants were the directors and agents, upon their stock in trade, to the amount of $1800.

Case, for special damage to the plaintiff, by obstructions in a highway, which was described in the declaration as leading from Pier Wharf to Anthony street, crossing Middle and Summer streets, and called State street, and alleging that it was defective in that portion of said highway between Middle and Summer streets. And one question was, whether this was a sufficient description of the highway.

<p>Assumpsit, to recover, inter alia, sundry sums for service of writs and other processes by the plaintiff as deputy sheriffj against the defendant, an attorney and counsellor at law.</p> <p>For the purpose of settling the questions of law arising in the hearing before the auditor, and for no other purpose, the parties agreed upon the following case:</p> <p>The plaintiff served writs of mesne process made and indorsed by the defendant, the plaintiffs in said writs living out of the State.; other writs, in which the plaintiffs lived in the State, made by the plaintiff and indorsed with the name of such plaintiff's by the defendant as their attorney; and other writs made by the defendant, and indorsed by the plaintiffs therein. Some of said writs were delivered to the plaintiff by the defendant as attorney for the plaintiffs therein; and others by the said plaintiffs themselves. The plaintiff levied sundry executions issued upon judgments recovered by various persons in actions in which the defendant was their attorney. ' Some of said executions were delivered to the plaintiff by the defendant as attorney for the parties in whose favor they were issued, and others by the parties themselves. The plaintiff claimed on these facts to hold the defendant liable for the service of all said writs and executions; while the defendant contended that he was not liable.</p>

<p>A complaint or indictment, under section 1, chapter 113, of the Revised Statutes, prohibiting rude, indecent, or disorderly conduct, which merely describes the offense in the language of the act, is defective, because it does not identify the acts complained of, or set forth the elements of the offense. •</p>

It was agreed by tbe parties that judgment should be rendered for the plaintiff' for eighteen dollars damages, and costs.

This was assumpsit to recover the costs of a suit for alleged trespass upon the land in dispute, brought by the plaintiffs in right of the wife Eliza, against said Jeremiah. The declaration contained the usual money count; an account annexed to the writ.

<p>Where the plaintiff put into the possession of another certain cattle to sell, with an agreement that they should he held out as the property of the bailee, so that a sale might be better effected, and, in pursuance of this arrangement, the bailee represented to one of his creditors that he had bought the cattle of the plaintiff; and thereupon the creditor procured a writ, and, acting on this representation, attached them as the bailee’s property; — it was held, that the plaintiff was estopped to set up property in himself against such creditor, although the bailee, at the attachment, informed the officer that the cattle belonged to the plaintiff.</p>

<p>^ va**c^ i’en as against a debtor who is a member of a partnership, may be acquired by attaching all his interest in the eifects of the firm and summoning the other partners as trustees; and such lien may be preserved by notice to the parties concerned, and such other acts designed to give notoriety to the attachment as the nature of the property will admit, although possession can not be taken and the property removed, to the exclusion of the other partners.</p> <p>Such lien is not acquired, so as to support a bill against the firm for an account, by merely summoning the other partners as trustees.</p>

Assumpsit to recover the amount of two promissory notes made by the defendant’s intestate. As to these notes no controversy ivas made.

In this case the defendants claim several costs under the following circumstances: The suit iá trespass to the person of the plaintiff and the defendants plead severally the general issue with brief statements ; that of David Bartlett alleges that what he did was in the necessary defense of his close and of his person; the other two defendants justify as servants and sons of David Bartlett, and in addition David F. Bartlett sets forth an assault upon himself.

<p>Under the statute of this State, the right is conferred upon any creditor of an insolvent estate to appeal from the allowance by the commissioner of any claim of another creditor, and to defend, with or without the aid of the administrator, any such claim which has been appealed from.</p> <p>The appealing creditor gives his bond for the security of the estate, and the proceedings go on at the discretion and under the supervision of the court, as the purposes of justice may require. In this case, the motion to dismiss the plea of the defendant in interest was denied by the court.</p>

<p>Permanent fences, when erected, become parts of the realty, and pass with it.</p> <p>"Where dower has been set off in a farm, and a partition fence erected between the dower and the rest of the farm, and the tenancy in dower is terminated, the fence passes to the owner of the farm, he owning the reversion of dower.</p>

In this case the parties agree to the following statement of facts : The said Meader is creditor of the estate of one Moses Place. The said Patience Place was married to the said Moses Place, say thirty years ago; has never been divorced, nor entered into any agreement to live separately.

Trespass guare clausum. John Welch, by deed dated March 22, 1827, “In consideration of the natural love and affection which I bear to my son, Barzilla Welch, have given, granted, bargained and sold to the said Barzilla, and by these presents do give, grant, bargain, sell, alien, enfeoff', convey and confirm to the said Barzilla” the premises described in the writ; “to have and to hold the said granted premises, with all the privileges and appurtenances to the same belonging,…

This was scire facias upon a judgment of the court of common pleas, Carroll county, May term, 1857, in which it was described as a judgment for $198.81, and costs $18.88. At the April term, 1861, the plaintiff, against the defendant’s exception, was allowed to amend the original record by making it a judgment as of mortgage, with a condition for the payment of the above sums; and, also, to amend the writ of scire facias to conform to the amended record.

Assumpsit, for the support of a pauper. One Augustus Sanborn, the alleged pauper, whose settlement was in Tuftonborough, and who had no relations liable to maintain him, being sick at his father’s house in Moultonborough, the selectmen of that town, being overseers of the poor, employed a physician and nurse to attend upon him, and sent some supplies to the house. The plaintiffs contended that Sanborn bad the small-pox or varioloid, and was poor and unable to support himself.

Trespass. First count for breaking and entering tbe plaintiff’s close in Swanzey, joining the defendant’s, and the same formerly owned by Lucy Thompson, and set off to her as one of the heirs of her father’s estate, and there cutting down and carrying away and converting to his own use fifty cords of the plaintiff’s sapling pines, of the value of §150.

Trespass for breaking and entering, on divers days between the first day of January, 1840, and September 30, 1859, the date of the plaintiff’s writ, upon a certain lot of land in Swanzey and Richmond, alleged to be the estate of one Lucy Holbrook, deceased, on whose estate the plaintiff is administrator, and cutting down, and conveying away, and converting to his own use, certain pine trees and saplings there growing, belonging to the estate of said deceased; and a count for…

<p>Case for flowage of the plaintiff’s meadow in Jaffrey, caused by the defendant’s mill dam in Fitzwilliam, from October 20, 1859, to February 19, 1861.</p> <p>Upon the trial there was evidence tending to prove the facts alleged in the plaintiff’s declaration.</p> <p>The defendant claimed the right to flow the meadow during the winter season by the continued open user of that privilege, under a claim of right, uninterrupted for more than twenty years. His evidence tended to prove that the mill he now owns, was erected before 1800, and the dam had always been maintained at the same height and in the same condition; that the gates were closed and the pond was filled, in the month of October, as soon as there was water to carry the mill, and that they were always opened, until ' about 1819, on the 15th of May, and after that date on the 10th of May; that when the dam was full, the water was about two and a half feet deep on the lower part of the plaintiff’s meadow; that no leave to flow was asked, or given, and that no damages were ever claimed, or paid, by the mill owners to the owners of this meadow, or others. A witness, Abel Marshall, a former owner of the defendant’s mill, testified as follows: “I paid no damages for flowing to any body. I was not asked to pay damages, but they (the meadow owners) complained the water ought to be taken off earlier, so the owners and my partner and I agreed to take it off the 10th of May; Jedediah Foster owned Page’s meadow then. After that we took it off the 10th of May. Jedediah Foster was present at the arrangement as to drawing off the water May 10th. We met at the hotel at Fitzwilliam village. Foster took no active part more than the rest. They complained the water was kept on too late, and we had a meeting and agreed to draw it off’ the 10th of May, and they were all satisfied, and there was no complaint after. It was while I owned the mill. It was not far from the middle of the time I was there. I bought February, 1816, and owned six years. There was no understanding about any damage; no understanding that the mill owners were to pay damage, if they injured the meadows; nothing was said of any damage.”</p> <p>The plaintiff testified, that in the summer of 1848, he claimed damages of Solomon H. Rand, who was then the owner of the mill, and under whom the defendant claims. During the winter preceding, the dam had broken away, and the plaintiff claimed that the dam injured his grass. Rand claimed the right to flow as he had done, but he looked the meadow over, and told the plaintiff’ he would give twenty-five dollars damage, if he would produce two meadow owners to go before A. A. Parker, Esq., and testify, that there had been any damages paid within twenty years. He summoned Jedediah Foster and Reuben Pratt to appear before Parker, and they gave their testimony before him, and Rand said he was satisfied he had no right to flow, and paid the twenty-five dollars. Parker made a lease and Rand accepted it. This lease was proved, and was as follows:</p> <p>“This indenture, made the fifteenth day of August, 1843, between Jonathan Page of, &c., and Solomon H. Rand of, &c., witnesseth, that for and in consideration of the sum of one dollar, paid by the said Solomon H. Rand, the receipt whereof is hereby acknowledged, the said Jonathan Page doth demise and .lease to' the said Solomon, the right and privilege of flowing the meadow land belonging to him, situate on lot No. 3, &c., in Jaffrey, as high and as much as the same has been flowed when the mill was owned by Capt. Luke Kendall and Abel Marshall, from the 20th day of October, to the 1st day of May in each and every year, for the term of five years from the date hereof; the said Rand to do no injury to the said meadow, more than is unavoidable ,in flowing the same in a prudent manner; and if any dispute shall arise between the parties that the said meadow is flowed too high, or too long, or not in a proper manner, the whole subject shall be left to Capt. Luke Kendall and Abel Marshall, who shall have authority to modify the dam, or hoist the gate, as they shall deem just and proper in conformity to this lease. In witness whereof, we have hereunto set our hands and seals the day and year first above written.</p> <p>Jonathan Page, (Seal.)</p> <p>“ Signed, sealed, and delivered Solomon H. Band.” (Seal.)</p> <p>in presence of</p> <p>A. A. Parker.”</p> <p>The plaintiff’s counsel insisted that this lease estopped the defendant from claiming any right to flow his meadow, by virtue of any title of an earlier date. But the court held that Band was estopped only during the'continuance of the lease, and the instrument was admissible only in the nature of an implied admission that said Band had no right to flow there as the defendant now claims, just as the express admission to the same effect testified to by the plaintiff, is admitted, to be weighed upon the question whether the owners of the mill had acquired a right to flow by twenty years user; that if it was shown that the owners of the mill had previously a right to flow the plaintiff’s land, it could not be lost, or surrendered by a mere admission.</p> <p>After the jury had been out some time, and the court had adjourned, a note was written by the foreman to the judge, saying that they had a misunderstanding among them, as to the effect of the charge relative to Mr. Marshall’s testimony, and requesting further instructions. The judge wrote as follows: “I said to the jury that if the claim’ of the owners of the meadow was, that the mill owners had no right to flow at all, the arrangement then made would interrupt any rights the mill owners were gaining by their exercise of the privilege of flowing. But if the meadow owners only disputed the right of the mill owners to flow so late as the 15th of May, the claim then made and the agreement then entered into, would not defeat the right to flow to the 10th of May. If the dispute was only as to the right to flow from the 10th of May to the 15th, any right then gained to flow to the 10th, would not be affected, nor would any right they were then gaining be defeated, if afterward completed.”</p> <p>To these instructions and to the ruling before stated the plaintiff excepted.</p> <p>The jury having found a verdict for the defendant, the plaintiff moved to set it aside by reason of said exceptions.</p>

<p>Where the value of the defendant’s board at a hotel in Newport, from May to October, 1860, was in issue, it was held that the admission of the price of board at a similar hotel in Claremont, ten miles distant, in November of the same year, was within the discretion of the court.</p> <p>An inn-keeper who is accustomed to take boarders, is a boarding-house keeper, within the provisions of the statute of June 27, 1859 (ch. 2230), and has a lien upon the horse of his boarder for his own fare and board, but not for the keeping of the horse.</p> <p>When, by reason of erroneous instructions, a verdict is for too large a sum, the defect may be cured by a remittitur, if the excess can be clearly ascertained by computation.</p>

In Error. By the copy of the record attached to the writ of error, it appears the defendants in error brought their action of assumpsit upon an account annexed, against Peebles, Deming and Tewksbury.

This was a writ of entry, to foreclose two mortgages. With the general issue there was a brief statement that the mortgage relied upon in the first count was not the deed of the defendants. The defense was made by creditors of the defendants, who had attached the mortgaged premises, and were permitted to appear and defend the action.

<p>"When the question is as to the existence of certain vicious hahits in a horse at a given time, the fact that the horse exhibited the same vices six or eight months after the time specified, may be competent evidence, in the discretion of the court, if accompanied with proper instructions as to its application.</p> <p>It is a question of fact for the jury, whether a pile of lumber within the limits of a highway, but entirely out of the traveled track, by being liable to frighten horses or otherwise, is an incumbrance or obstruction within the meaning of the statute, or whether it has become such incumbrance by being continued there for an unreasonable length of time.</p> <p>Although the public rights in a highway are paramount, yet the owner of the fee in the soil, subject to the public easement, may make such use of his land within the limits of the highway, for the placing of lumber, &e., as is, under all the circumstances of the case, reasonable and proper; and when thus used the lumber will not be an incumbrance.</p> <p>In determining the question of a reasonable and proper use, by the owner of lands within the limits of the highway, but without the traveled track, whether evidence of the manner in which others have used it or were at the time using the same highway in that vicinity for similar purposes, would be competent, qucere ?</p> <p>"Whore the question was, whether one J was making a reasonable and proper use of his land within the limits of a high way, in piling lumber there, and the plaintiff had introduced evidence that said J claimed a piece of land near by not in the highway, on which he might have piled it; it was competent for the defendant to show that a part of such land was claimed by another person, or that he claimed a right of way over it to a building of his own, as tending to rebut the plaintiff's evidence.</p> <p>If the plaintiff’s injury were caused by the negligent acts of a third person in the highway, that will not make the town liable unless the highway were defective, or in some way obstructed or incumbered.</p> <p>It is now settled in this State, that where the cause of the accident and injury to the plaintiff is such that the town could not have had notice of it, or if notified, could not have removed or remedied the cause, or have prevented the accident, the town will not be liable.</p> <p>Nor does it make any difference whether the accident was thus caused by act of Providence, or by the negligent or malicious act of man, or by a combination of these causes.</p>

<p>This was an action on the case, brought by David Page against David M. Parker, William M. Parker, and Henry W. Reding, for conspiring together to cheat and defraud the plaintiff, and defrauding him by selling to him at a price greatly exceeding its value, two thirds of a certain soap-stone quarry, in Haverhill, N. H., together with some personal property connected therewith. The first and third counts in the declaration were stricken out before going to the jury. The second count is made a part of this case. A nonsuit was moved as to David M. Parker, on the ground that there was no evidence tending to charge him. The motion was denied and the defendants excepted.</p> <p>It was proved that David M. Parker was the owner of the quarry, and the brother of William M. Parker. It was also proved that David M. Parker himself executed the deeds to Reding and Page, and caused them to be deposited with Mr. Felton, in accordance with said agreements; the one to Page being executed October 2, 1856, and the one to Reding being executed October 4, 1856. There was evidence to show that all the material representations set forth in the declaration were made directly by William M. Parker and Reding to Page, and that Reding, although he received a deed of one third of the quarry, and represented himself to Page as ajoint purchaser with him, was, in fact, assisting the Parkers to make a trade, and paying no money for his third; and that Page knew nothing of the real position of Reding in the transaction; representing that the quarry was worth from $25,000 to $30,000— a great bargain at $15,000 — but concealing from Page the material fact that they were actually selling the premises at $10,000.</p> <p>The case, as transferred, contained a large portion of the testimony in the case, which it is not here necessary to state, except so far as it appears in the opinion of the court.</p> <p>Upon the evidence, the court charged the jury that to enable the plaintiff to maintain this action, they must find all the defendants to have combined and conspired jointly to defraud the plaintiff in and by the sale to him of the soap-stone quarry; that there was a common design and purpose on their part, and that a positive fraud had been thus committed by the defendants upon the plaintiff, and a damage resulting to himself therefrom. The plaintiff must show, not only that the representations made to him were false, and known at the time to be so, but that they were intended to deceive him, and that he believed and acted upon them as true; that when there is an intentional concealment or suppression of material facts, in the making of a contract in cases in wbicb both parties have not equal access to the means of information, it will be deemed unfair dealing, and will vitiate the contract. The law requires truth and good faith in dealings among men, and these forbid a false representation, made knowingly, or the fraudulent concealment of material facts exclusively known to the party who conceal them. But when both pai-ties know, or with ordinary care might discover the facts, and there be no misrepresentation or warranty, the buyer is his own insurer, and the law will give him no remedy.</p> <p>The defendants requested the court to instruct the jury that if they believed that Reding made no representation intentionally false, except in respect to what he was to pay for the property, and in respect to how he was to obtain the means of payment, and that there was no fraudulent concealment on his part, except as to what he was to pay, and in respect to how he should obtain the means of payment, the jury should find him not guilty. The court declined to do this, instructing the jury that they should find him guilty or otherwise, upon considering and weighing all the evidence in the case, and upon the principles of law before suggested.</p> <p>2. The defendants’ counsel requested the court to instruct the jury that if they believed the defendants to have made false and fraudulent representations to the plaintiffj in respect to only one material matter affecting the value of the property sold, the jury should assess damages only in respect to that one matter; and thereupon the plaintiff’s counsel requested the court to instruct the jury that if they found that the defendants conspired and agreed together to cheat and defraud the plaintiff, and made any material representation to the plaintiff that was false, fraudulent, and made for the purpose of carrying out said conspiracy, theu the jury would he justified in finding the defendants guilty.</p> <p>The court, however, referring to the rule of damages as adjudged in this case at a former trial, gave it as their guide in the present case, that when the purchaser retained the property, if the jury found for the plaintiff they might assess in his favor, as damages, the difference between the actual value of the property purchased, and its value as represented to be at the time of the sale, the price paid being very strong but not absolutely conclusive evidence of the value of the property as it was represented to be. Upon the subject of damages, the court declined to instruct otherwise than as above stated.</p> <p>The jury having returned against the defendants their verdict for the sum of $10,800.72, the defendants moved to set the same aside and for a new trial for the causes assigned. They also moved in arrest of judgment on account of the insufficiency of the plaintiff’s declaration, and the questions of law were reserved.</p>

This was an action on the case against the sheriff of Grafton County, for the default of his deputy, Martin, in not returning an execution in favor of David Page against John Buzzell, and paying over the money collected thereon.

<p>Where the condition of a bond for the plaintiff’s maintenance required the obligor to furnish to the obligee “ money necessary for him to spend, whenever he thinks proper to visit his friends,” it was held, that whenever, in the honest and fair exercise of his judgment, the obligee thought proper to make such visits, the obligor was bound to furnish money; but not, if exercised wantonly or capriciously.</p> <p>Held, also, that having failed so to furnish means, in a suit on the bond the plaintiff was entitled to execution for such amount as was reasonably required for the visit.</p>

Assumpsit to recover the following note: “North' Haverhill, Feb. 27, 1854. For value received I promise to pay James Glynn or order seventy-five dollars in five equal annual payments, with interest after said payments are due. (Signed) Irad Porter.” On the note was indorsed, “April 11,1854, received five dollars;” also, “March 6, 1855, received fourteen dollars.” The indorsements were made by Glynn.

<p>Counsel claimed to appear for a school district under authority from a vote of the district ; the plaintiff offered evidence that at a subsequent meeting of the district such authority was revoked:—</p> <p>Held, that it was competent for the counsel claiming to appear for the defendants, to show that the vote of revocation was passed by illegal votes.</p> <p>A school-district meeting, called to see if the district will vote not to defend a suit brought against them for labor and materials in building a school-house, is not a meeting “ for raising money or building or repairing a school-house,” within the meaning of section 2, chapter 222, of the Pamphlet Laws.</p>

A woman having a settlement in the town of Grafton, in this county, was married to a man who had no settlement in the State, and • they removed to Columbia, in the county of Coos. The husband becoming a pauper, was relieved by Columbia, and a bill therefor was presented to and paid by the town of Grafton, which now claims the amount of the bill from the county of Grafton.

In Error. It appears by the record and by the facts argued by the parties, that the action was against three persons. The plaintiff' was unable to prove the signature of one of the three signers of the note which he offered in support of his declaration. He then moved that the name of this signer should be struck from the declaration. The court allowed the amendment, and the defendants, now the plaintiffs in error, excepted.

<p>• In case, tbe writ alleges that since the 16th of August, 1830, the plaintiff has been seized and possessed of an ancient grist-mill, situate upon the Israel’s river, in Lancaster, and in common with other mill-owners, of a dam, &c., to drive their mills and said grist-mill, and has possessed and used a flume to said gristmill, and had the right to maintain, repair and use it, and the right to draw water from said dam through said flume, sufficient to carry two runs of stones in his grist-mill, prior to the right of any other person to use water from said pond; yet the defendant, from the 10th day of January, 1858, to the 20th of March, 1858, used and occupied a foundery and machine shop, erected over and across said flume, between the plaintiff’s grist-mill and said dam, and to carry his wheel therein wrongfully drew and took so much of the water of said river from said dam and flume that he thereby deprived the plaintiff of water to carry his gristmill, or any run of stones thei’ein, stopping the water from coming to it, and obliging it to stand still from want of water, whereby the mill was rendered useless, and the plaintiff lost the profits of it, &c.</p> <p>Under the general issue tbe plaintiff showed title to his gristmill, under deeds since 1790, and possession by himself since 1830, and claimed the exclusive and prior right to the water to cany two runs of stones, and that the defendant has used the water in his foundery in such a manner as to injure him.</p> <p>Both parties claimed under one McIntyre, whose deed to Hunt, under whom the defendant claims, contains an exception and condition as follows :</p> <p>“And except the right of maintaining the necessary flume for said grist-mill, on the condition that said Hunt shall support one half of the dam that I now support, and be at half the expense of said grist-mill flume, as far down as he, Hunt, may draw water from it.</p> <p>The defendant showed that under his deed of January 11, 1859, he took possession of his foundery, above the defendant’s grist-mill, and below the dam, and had a prior right to the water before all others, except the grist-mill. He insisted that he used the water when it was wanted for the grist-mill, but by consent; but that the plaintiff, by unsuitable wheels, used more than he had right to use, and that there was a leakage, or waste of water, through the sides or bottom of his flume, or from the dam under or near it, or from bad gates, to his injury.</p> <p>Chase, the plaintiff’s miller, testified that the leakage from the plaintiff’s flume would furnish water to run the foundery, and leave a surplus equal to one third the power for a run of stones in the grist-mill. He testified as to the relative value of different wheels, and that during most of the time complained of in the plaintiff’s declaration, there was not sufficient water to carry two runs of stones in the grist-mill.</p> <p>On cross-examination, he said he did not, during this time, nor had he ever, chained or bound his wheels, nor sluiced the water through his wheels, nor told any one he had done so.</p> <p>The defendant called witnesses to testify that Chase had made such statements to them. To this evidence the plaintiff objected, but the court admitted it as tending to contradict Chase.</p> <p>The jury, by assent of both parties, viewed both the mills. After the view, the defendant, who was a witness, submitted measurements of the waste water that escaped from, his sluiceway at the time the jury were there. The plaintiff objected, but they were admitted, as showing no facts different from what the jury saw, and as explanatory of what their attention was called to.</p> <p>The plaintiff testified, in answer to inquiries of his counsel, relative to his refusing to join in making repairs at a former period, and the reasons of it. The evidence was objected to, and rejected as foreign to the issue.</p> <p>The plaintiff claimed that he was entitled to damages in consequence of the defendant tapping his flume, and drawing water from it by his penstock, but the court held it immaterial where the water was taken from, whether from the flume or the dam. The question was, whether the plaintiff was deprived by the defendant of water necessary to carry two runs of stones in his grist-mill, no damages being claimed in the declaration on account of the use of the penstock; and the plaintiff excepted.</p> <p>The court charged the jury that the plaintiff could not claim of the defendant damages caused by his own acts, &e., and the plaintiff excepted.</p>

<p>When the defendant enters on land of the plaintiff, under an agreement to purchase, it being agreed that the defendant shall pay a sum certain at a specified time, and receive his deed, and in the meantime that he may occupy the premises free of rent; if he fails to pay the money at the time appointed, the plaintiff may treat the whole contract as rescinded, and may maintain a writ of entry of trespass against the defendant.</p> <p>In a writ of entry, if the defendant plead the general issue, he will be estopped from proving that he was a tenant of the plaintiff, at will or for years.</p>

Trover for 40 mill saws, 6 mill bars, 2 mill chains, 2 sets of tackle and falls, and a large quantity of belting. The plaintiff’s writ is dated October 5,1859. Plea, the general issue. Conversion by the defendants alleged on the 25th of March, 1857.

This was a motion for a re-hearing of this cause after the opinion of the court had been delivered. The facts appear in the opinion.

Assumpsit. The plaintiff’s declaration contained three counts : First, for goods sold and delivered, $200; second, for money had and received, $200; third, upon an account annexed, as follows: namely, 1856-7. To 30 M No. 2 W. pine shingles, @ $4.45 f M, $133.50 15 M No. 3 do., 55.50 Interest, 12.00 Cr.: $200.00 By your store account to apply on said shingles, for goods delivered on the 25th February, 15th May, July 3d, $65.15 Balance, $135.85 ■ Plea, the general issue.

<p>A declaration on an account annexed for the price of goods sold and delivered, with a count for goods bargained and sold, may, on review, be amended by adding a special count for not accepting and paying for the same goods.</p>

This was a review, by tbe original plaintiff, of the action Johnson v. The Railroad, in which judgment was rendered, November term, 1857, upon a verdict of May term, 1856, for $1,748 damages. At said November term the plaintiff moved to add the interest upon the verdict up to that time, but his motion was denied; and thereupon, without any exception, judgment was rendered for the amount of the verdict, and satisfied.

This was an indictment alleging that the respondent had, on the 23d day .of August, 1858, mortgaged a certain horse to one Jacob Woods, which mortgage had been duly executed, and the proper oath thereon had been subscribed and sworn to by said Plaisted and said Woods, and that said mortgage had been duly recorded in the office of the city clerk of the City of Concord, being the city in which the said Plaisted resided at the time of making said mortgage; and that afterward,…

<p>This was an indictment for a nuisance at common law; that E. M. Wilson, of, &c., on the 1st of June, 1858, and on divers other days and times, &c., at Pembroke, &e., with force and arms, near to a public street in P. aforesaid, called Pembroke street, being a common highway, &c., and near the dwelling-houses of divers citizens, &c., did unlawfully and without sufficient cause keep and maintain a certain slaughter-house, and a cellar under the same, and in said slaughter-house, he, the said E. M. W-, on, &c., did kill and slaughter large numbers of oxen, &c., and on, &c., did cast and throw the offals, &c., into the cellar aforesaid; and in the cellar aforesaid, during the times aforesaid, did keep a large number, to wit, fourteen hogs, and he the said E. M. W., on, &c., did feed said hogs in the cellar, &c., upon the offals, &c., by means whereof divers noisome, unwholesome, and noxious smells and stenches, during, &c., and large quantities of noxious and unwholesome smokes and vapors, on, &c., were then and there emitted, &c., from said slaughter-house, and the cellar under the same, &c., and the air in the neighborhood thereof, and for a great distance around, on the days, &c., was thereby greatly impregnated, and filled with many noisome, &c., smells, &c., and has been corrupted and rendered very unwholesome, &c., to the great damage and common nuisance of all the good citizens of this State, then and there inhabiting, &c., in evil example, &c., contrary to the law, &c., and against the peace, &c.</p> <p>The defendant moved to quash the indictment, on thé ground that the statute takes away the common law remedy. The court overruled the motion, and a verdict of guilty, being returned, the defendant moved for an arrest of judgment, for reasons appearing upon the case.</p>

Foreign Attachment. The principal defendants were formerly copartners in trade at Salisbury, Jlew-Hampshire, under the firm of Greenleaf & Clement, and the plaintiffs’ cause of action is notes of said firm.

Foreign Attachment. The trustees having disclosed, the plaintiff elected to try their liability by the jury. The trustees were at first summoned severally, but aft.er they had disclosed, the writ was amended so as to hold them jointly and severally.

Trover, to recover the value of a quantity of leather made from hides sent to W. & II. Leviston, of Bradford, N. H., August 24 and 26,1859, and which hides, the plaintiff claimed, were sent on lien account, the title to remain in him until manufactured into leather, and returned to him in Boston, to be sold on commission, and the hides paid for out of the avails.

<p>The defendant conveyed to the plaintiff a piece of land, hy metes and hounds, hounded on one side by Warner river, with the saw-mill, clothing-mill and carding-machines therein, “ with a privilege of flowage, use of water and repairing of dam,” with all privileges and appurtenances, &c.: — Held, that this was only an enumeration of the rights that would pass as incident to the land or mills, and not a separate grant of any rights or privileges disconnected from those before granted.</p> <p>Such deed conveys all such privilege of flowage, use of water, and repairing of dam, as would be incident to the land as bounded on the river, and such as were incident to, or had become connected with the mills conveyed, and including not only those which wore originally incident to the land and mills, but all such as had been acquired by grant or prescription hy the defendant or his grantors, before the conveyance to the plaintiff.</p> <p>Evidence that the defendant, at the time of the sale, was using all the water in the stream, and claimed the right so to use it, and promised to convey it all to the plaintiff', would he inadmissible in an action of covenant broken upon such deed, it being admitted that another person owned the land upon the opposite side of the river, with a part of the water-power.</p>

<p>Debt upon a jail bond dated February 3d, 1860. It was agreed that the principal, John Carleton, at the time of his arrest, resided and ever since then has resided at Manchester, in the county of Hillsborough, but was arrested at Concord, in the county of Merrimack, upon an execution issued upon a judgment rendered in said county of Merrimack, and gave bond in the usual form ; that within one year from the date of said bond, on the 12th day of January, 1861, the principal made an application,to two justices of the peace and of the quorum for said county of Hillsborough to be allowed to take the poor debtor’s oath; that an order of notice was issued by said justices, returnable before them at Manchester, and the same was properly served on the plaintiff; that at the time and place mentioned in the notice, the defendant was admitted to take and did take the oath prescribed for the relief of poor debtors, on the first day of February, 1861, and within a year from the date of said bond.. This plaintiff did not appear at these proceedings, or give any notice to said justices or defendants in reference thereto.</p> <p>It was further agreed, that at the time of making said application, and thence up to the expiration of the year, the debtor was confined to his house in Manchester by sickness. To this fact the plaintiff objected, and alleged that the same was incompetent and immaterial to be considered.</p> <p>It was agreed by the parties, that if the taking of said oath in the manner above stated was a legal compliance with the condition of the bond — then judgment should be rendered for the defendants for their costs; otherwise for the plaintiff for the amount of said execution and costs. The oath was taken February 1st, 1861, and the year expired February 3d, 1861.</p>

<p>Where, by a contract under seal, executed by the plaintiff and the defendant, the latter covenants that, upon the payment of ¡¡¡>1700 in the manner and at the times therein set forth, he will convey to the plaintiff certain real estate, excepting the wood and timber upon a specified part,' — and the plaintiff covenants that as part payment of the $1700 he will cut and carry the wood for the defendant to places and at prices fixed by the contract, — there is an implied covenant on the part of the defendant to permit the plaintiff thus to cut and carry the wood.</p> <p>If before the expiration of the time fixed for the cutting and carrying of the wood by the plaintiff the defendant prevents him from so doing by a sale of it, this will be a breach of the implied covenant, such as will give the plaintiff an immediate right of action.</p> <p>In such ease the plaintiff might treat his readiness to cut and carry the wood according to his covenant as equivalent to performance of the covenant; and such a breach of his implied covenant by the defendant is not a breach of his covenant to convey.</p> <p>In an action upon the implied covenant in such case, the plaintiff, if he has not performed the other condition precedent to a conveyance by the defendant, and shows no special damage, will be entitled to nominal damages only.</p>

Assupmsit, brought upon the statute to recover a certain sum of money alleged to have been paid out by said county for the support and maintenance of one Parker G-. Melvin at the New-Hampshire Asylum for the Insane.

<p>Where the copy of the recognizance sent to this court by a magistrate before whom it was taken was a correct copy of the recognizance as taken, except that wherever in the original recognizance the words “ Supreme- Judicial Court” occurred, the copy contained the words “court of common pleas” instead thereof, and the defendant was called at said term of said Supreme Judicial Court, and his default entered of record, and scire facias issued to have execution ; on motion, it was hold that the copy might be amended by correcting the mistake 'of the magistrate and making the copy to correspond with the original recognizance.</p> <p>Any records of this court, before or after judgment, and judgments even, may be amended so as to correct clerical errors and mistakes.</p>

<p>Where the adverse party, at a caption of depositions which was after the Tuesday preceding the sitting of the court, objected only upon the ground that the taking was too late, it was held that he could not, at the trial, object that the notice did not state that the witness was bound to sea.</p> <p>An “ assistant judge of a county court” in Vermont has authority, under our statute, to take depositions, whether he has power by the Vermont laws or not.</p> <p>A witness who testifies to circumstances tending to show that he was discharged as surety by the creditor, can not be contradicted by proof that on another occasion he had expressed the opinion that he was still liable.</p> <p>Where a creditor disposes of personal property mortgaged to him by the principal as collateral security, he is responsible to the surety for ordinary care and prudence in the sale, and the application of the proceeds.</p>

This was an action of debt on a recognizance entered into upon an appeal from a judgment of the court of common pleas, conditioned to prosecute the appeal and pay all costs which, in the final judgment, might be recovered against the defendant. The breach alleged was in not prosecuting the appeal, but it was not stated that the breach appeared of record. Por this and various other causes, not necessary to state, the defendant demurred to the declaration.

This is an appeal from a decree of tbe probate court of the county of Hillsborough, made November 22, 1859, by which the guardian accounts of the appellant with his wards Eleanor Gamble, Busan S. Abbott, John Gamble, and Archibald Gamble, were ordered and decreed to be opened for settlement, and that the appellant should make and present separate and distinct accounts with each of said wards, and therein charge himself with annual interest at five per cent on all the money…

<p>Assumpsit on a promissory note of the defendant, dated September 21, 1851, for $82,66, payable to one Blaisdell, or order, in six months from date, with interest, and by him indorsed to the plaintiff' in March, 1858, before the suing out of plaintiff's writ, which was dated March 19, 1858. Plea, the general issue, with a brief statement, under which the defendant defended on the ground that the note had been paid ; and, also, that the note was still the property of Blaisdell, and that he was the real plaintiff^ against whom he claimed to have a set-off. The defendant introduced evidence tending to show that Blaisdell had been the owner of the note from the time it was given, and still was so in fact.</p> <p>March 13, 1854, the defendant recovered a judgment against Blaisdell for $545,50 in this county. In January, 1858, the defendant, having brought suit upon this judgment and attached Blaisdell’s property, met Blaisdell, and the defendant introduced evidence tending to show that on this occasion he claimed of Blaisdell that the latter was owing him the amount of that judgment, and interest, a sum of $50 for money lent, and also $61.71 on account of another transaction; that Blaisdell claimed that the defendant was owing him the note in suit, also a note dated November 19, 1851, for $14.28, payable on demand, with interest,-and also $305 on account; that after some negotiations they agreed to settle, and that each should allow these claims of the other, and that the notes, together with the difference between the other claims described, should be applied on the execution, and that the balance due after allowing their respective claims should be secured; and that the defendant should discontinue his suit and relinquish his attachment, which he then did. The notes were present on that occasion, but were not given up to the defendant; the execution issued on the judgment was not present, and it did not appear that the defendant ever indorsed any thing on the execution, or that there was any further settlement after this interview. The judgment was not filed in set-off in this case. Under the set-off’ the defendant introduced evidence tending to show that Blaisdell was indebted to him for $50, money lent, and also for $61.71 on account of another transaction, each occurring several years prior to January, 1858; but there was no evidence of any demand on Blaisdell, by the defendant, for either of these sums prior to January, 1858.</p> <p>The defendant claimed that the note in suit was paid in January, 1858, by the transaction at that time. All the material evidence bearing upon this matter of payment is stated in the case. In regard to the claim, the court instructed the jury that if an agreement was then made between Blaisdell, then owning the note, and the defendant, by which the note should then be paid by then offsetting certain claims of the defendant against Blaisdell, which -were themselves then tb be paid in whole or in part by being so applied, that is, if this note was agreed to be then settled and paid by then allowing certain claims of the defendant in satisfaction of it, this would be a payment of the note; but if the agreement was that the parties would thereafter make such a settlement, that would not be a payment of the note. No exception was taken to the instructions of the court until after a verdict was returned for the defendant by the jury, when the plaintiff moved to set the same aside and for a new trial, alleging the following reasons: “Because the question of payment was submitted to the jury, and because the verdict is against the evidence;” and the questions of law were reserved.</p>

<p>"Where goods have heon taken by a sheriff into his possession, by virtue of a writ of replevin, they can not be taken from him by another writ of replevin, at common law, nor by statute.</p>

This is a writ of entry to recover thirteen acres of land in Wind-ham. The case was submitted upon an agreed statement of facts.

Assumpsit for $2000, money had and received. The plaintiffs, William Hill and others, specified under this count the joint and several promissory note of the defendant, Noah C. Huntress and James C. G-owen, dated May 3, 1847, for $52,173.70, payable to Oliver Hill or order, one fourth in one year, one fourth in two years, one fourth in three years, and the remaining fourth part in four years, with interest annually, indorsed and transferred to the plaintiffs.

<p>Assumpsit, brought by Irene Robinson, administratrix of J. L. Robinson, against Nathaniel G. Gilman and others, administrators of N. Gilman, on two promissory notes signed by N. Gilman, payable on demand, and duly transferred by the original payees to J. L. Robinson. The defendants’ liability upon these notes was admitted.</p> <p>A notice of set-off was filed, in which the defendants claimed that one Rollins was indebted to N. Gilman in two promissory notes therein described ; that J. L. Robinson, on July 1, 1854, promised and agreed to aud with said Gilman, then the holder and owner of these notes, that in case said Gilman would not bring a suit on said notes, and summon said Robinson as trustee of said Rollins, he would pay said notes to said Gilman; also, that in consid-. eration aforesaid, said Robinson promised said Gilman that he would pay to said Gilman a sum equal to the amount of said notes and interest; and also that, in consideration aforesaid, said Robinson promised said Gilman that he would procure said notes to be settled and paid to said Gilman; that said Gilman did not bring such suit, and did not summon said Robinson as trustee, whereby said Robinson became liable to perform his promises aforesaid, &c.</p> <p>The plaintiff moved to reject the third statement of cause of action in set-off, and the court injected the same, and the defendants excepted.</p> <p>The defendants then proved the notes described in the set-off, and called A. "Wood, who testified that Rollins failed in business-before 1854, and that Rollins claimed that a large sum was due him from Robinson, which was denied by Robinson; that two suits were brought against said Rollins by his creditors, in which Robinson was summoned as his trustee, and that a suit was brought by Rollins against Robinson to recover the debt alleged to be due from Robinson to him; that at the February term, 1854, of this court, when those suits were pending, Robinson came to him (Wood), he being the attorney of the plaintiff in those suits, and desired a continuance of the trustee suits, and that no more questions should be put to him that term in his disclosure therein, which had been commenced before that time; that Wood objected to this, and insisted on completing the disclosure; that Robinson said that if he would grant his request, the matter should be settled up before the next term of the court, and offered to pay a large sum if it was not settled; that Wood consented, and at Robinson’s request, as counsel for said creditors, signed and delivered to Robinson the following agreement: “In the action,” &e., describing it, “I agree to ask said Robinson no more questions than I feel bound to do as counsel, and if all the questions are answered, and the said.disclosure signed, I will place the same in the hands of the clerk of the court, to be by him kept until sworn to at such future time as may be necessary, provided the plaintiff' has to try trustees’ liability, by the court or jury”; that in the course of the foregoing conversation, Robinson said that all the claims against Rollins would be settled together, and it was said that some of the claims held in Portsmouth against Rollins could be settled for less than their face.</p> <p>Upon cross-examination as to this conversation, Wood said that it was not the understanding that Robinson should go round and see Rollins’, creditors, but that he, Wood, was to get claims as cheap as he could ; that he could do so, as he had seen some of the Portsmouth creditors.</p> <p>Wood also testified, on direct examination, tliat in the summer of 1854, Gilman called on him to collect his demands against Rollins, and directed him to notify Robinson that he should collect his claims by suit, and summon Robinson as trustee; that he notified Robinson of this, and what Gilman wras about to do, and Robinson called on him and said something to the effect that he -would call on Gilman and have some arrangement made; that he did not want a suit commenced (the witness said he could not give his exact words); that no suit was commenced; that after this the witness was informed, by either Robinson or Gilman, or both, that the matter had been arranged, and that no suit was to be commenced; that after this, shortly before Robinson’s death, Wood saw Robinson as to carrying out the settlement they had agreed on, and asked him “ if the matter would be settled, as they had talked about before the September term,” and said that if not, he should proceed with the disclosure; that Robinson assured him he had no doubt it would be done; that it would be settled.</p> <p>On cross-examination, Wood said he thought Gilman did not bring to or leave wfith him the notes, in the summer of 1854 ; that he was to notify Robinson, and he thought he "was to do nothing further till he saw Robinson, but he could not tell whether he was to proceed or not without further direction, in case Robinson refused to do any thing; that Robinson did not say he would pay the notes, or procure them to be paid, but said he would see Gilman and have some ari’angement made about it, witliout having any suit; or that Robixxson said he would see Gilman and see if some ax’rangement could not be made to prevent bxúnging a suit; that he had no recollection of Robinson’s speaking to him about Gilman’s debt after this; or that he did not speak to him about it afterward.</p> <p>It wras admitted that after Robinson’s death, Gilman duly presented to the commissioner on Robinsoxi’s estate, his claim for the amount of these two notes.</p> <p>The defendant having rested hex’e, the plaintiff asked the court to rule that the evidexice was not coxnpetent to sustain the set-off) because of an alleged variance, and because of the statute of fx’auds, and the court so ruled, and directed a verdict for the plaintiff for the full amount of the notes declared on; to which ruling and direction the defendant excepted.</p> <p>The parties agreed that the evidence in suppox’t of the thix’d cause of action in the set-off) is the same as that stated in the foregoing case, and that if the exception to the ruling of the coui’t, rejecting that part of the notice of the set-off) is sustained, the question whether the promise therein stated is wdthin the statute of frauds, may be determined by the court, as if the same had been x’aised by the case.</p>

<p>A judgment is not admissible in evidence, unless it appears on tbe face of the record, or is shown by extrinsic evidence, that the matters in issue in the first case were the same as in the case on trial.</p> <p>A declaration for obstructing a water-course by means of a dam, may be amended by inserting two dams.</p> <p>Proof of the nature, amount, and profits, of the business done at the mill alleged to be obstructed, is admissible where the declaration alleges the loss of such profits.</p>

In Assumpsit. The plaintiff', John G. Cutler, kept a gambling place in Exeter.

In Equity. Tbe bill sets forth, that tbe defendant, by the last will of Jeremiah Dennett, proved August 17, 1818, is seized as tenant for life of a certain farm and buildings in Portsmouth, bounded, &c., containing about eighty acres; that tbe plaintiff is seized of tbe remainder thereof, expectant on tbe defendant’s decease; and the defendant on or about tbe first of July, 1860, entered upon and took possession of said premises as tenant for life, and has ever since been in…

Application por a Mandamus. The petition of W. S. True and seven others, against T. J. Melvin and two others, selectmen of Chester, set forth that on the 11th of June, 1857, W. S. True and others… Held: decided upon a location of the school-house therein. 2. Because G-.

<p>It is the ordinary duty of the clerk of a court of record to extend the record of the proceedings in each suit, from the process and pleadings on file, and from the minutes and entries on the dockets, and he can resort to no extrinsic evidence for that purpose.</p> <p>But the court has authority to amend its records so as to make them conform to the actual facts and truth of the case; and may in its discretion, receive and act upon any competent legal evidence.</p>

In Equity. Tbe bill is stated in 40 N. H. 548. Answers were filed ánd evidence taken, and tbe case was beard on tbe bill, answers and proofs. Many of tbe allegations in tbe bill wTere admitted, sucb as tbe due incorporation of both roads, tbe lease of tbe New-Hampsbire road, and tbe terms of that lease, &c. Other allegations of tbe bill were admitted with some qualification, and others denied.

In Assumpsit, for food, drink, washing, lodging and nursing of the defendant, for money paid, and for balance of account, the general issue was pleaded, with a set-off. Among other items of the set-off was a claim for a note of Abraham C. Smith, for |35, dated May 10, 1860, payable to the defendant or order, on demand, with interest, and sundry articles of bedding and other personal property.

<p>Action of covenant broken. The facts sufficiently appear in the opinion of the court.</p>

<p>The writ is dated October 4, 1848, and the declaration is in assumpsit for the support of Philip Flanders, and Hannah, his wife, paupers alleged to have their settlement in Plaistow. The charge in the account annexed and referred to in the writ was,</p> <p>“ 1858, October 4. For board of Philip Flanders and Hannah Flanders, 25 weeks, at $2, $50.00</p> <p>“Paid for clothing for same, 3.25</p> <p>$53.25”</p> <p>The notice, which was dated July 12, 1858, and was served on Plaistow July 22, 1858, stated the following claim:</p> <p>“For board of said Philip and wife, 13 weeks, $26.00</p> <p>“ Paid for clothing for same, ‘ 3.25</p> <p>$29.25”</p> <p>It was agreed that Chester, in November, 1858, made claim against the county of Eoekingham for the support of Philip during the period embraced in the account annexed to the writ, and received payment therefor from the county; and that the plaintiffs have authority in writing from the commissioners of the county, dated October 22, 1861, to recover and receive for the county in this suit the amount claimed therein for the board and clothing of Philip.</p> <p>Upon the foregoing facts the defendants moved for a nonsuit. The writ and declaration, the notice, the application of the overseers of Chester to the county, and the authority from the commissioners, were parts of this case. If, under the foregoing circumstances, the court shall be of opinion that this action can not be maintained for the sums expended by the plaintiffs, as set forth in the declaration, although the settlement of the two paupers should be in Plaistow, then the plaintiffs are to become nonsuit.</p> <p>In case the court shall be of opinion that this action can be maintained under the circumstances before stated, it is further agreed, for the purposes of this case only, that Philip has a derivative settlement from his father, David Flanders, Jr., having been born in Plaistow in 1801 while David, Jr., had a settlement there, gained under laws passed prior to January 1, 1796; unless he has lost such derivative settlement by reason of the statute, Rev. Stat., ch. 65, sec. 3.</p> <p>It was also agreed, for the purposes of this case only, that Philip and Hannah were supported by the plaintiffs upon the town farm of Chester, and that their labor and services,' rendered on said farm during the period they were so supported, were equal in value to the cost to the plaintiffs of supporting them there.</p> <p>In case a nonsuit is not ordered, as herein before provided, it is agreed that judgment be rendered for the plaintiffs for the amount claimed in the writ, or for the defendants, as the opinion of the court shall be upon the foregoing case; provided, however, that, if a nonsuit is not entered as aforesaid, either party so electing may have the cause tried by the jury.</p>

Assumpsit upon two promisory notes made at Lowell, Massachusetts, by one Case as principal, and the defendant as surety, for $2000 each, and payáble to the testator, or order, in one year, with interest.

This was an action on the case against a deputy of the sheriff, for negligently and improperly keeping certain chattels attached by him on mesne process, whereby they were accidentally burned and injured.

<p>Where the indorser of a promissory note received of the makers a mortgage of all their property to indemnify him against such liability, it was held that he was still entitled to notice of the dishonor.</p> <p>A witness, who has testified that a paper produced by him is a copy of a notice sent to an indorser, may, at the instance of the party calling him, correct his testimony, by stating that in respect to the direction it is not a copy.</p>

<p>The indictment, commencing in the usual form, alleges the name of the complainant, and sets forth that the respondents, Nathan F. Hunkins, of, &c., and John Curtice, of, &c., on the 12th day of October, 1857, at, &c., with force and arms did unlawfully and fraudulently sell and convey 500,000 of bricks, of the value of $2,500, of the property and personal estate of said Nathan F. Hun-kins and the said John Curtice, they the said Nathan F. Hunkins and the said John Curtice .being then and there debtors, with intent thereby to prevent the seizure of the same personal estate upon mesne process, contrary, &c., &e.</p> <p>The respondents moved to quash the indictment, because said indictment was not found within two yeai’s after the offense was committed; and it does not appear by said indictment, and is not averred therein, that the same was found within said two years.</p>

Assumpsit, by Mebitable Wiggin. against Hiram Wiggin. The declaration, after setting out the provisions of the will hereinafter stated, and averring the occurrence of the conditions on which the plaintiff’ was to become entitled to those provisions, and that the defendant had entered and taken possession of the residue of the estate devised and bequeathed to him by the will, alleged the defendant’s promise to the plaintiff to execute and comply with those provisions on his…

Case. The declaration is set forth at length in 28 N. H. 438. The writ was dated August 17, 1849. At the trial, the plaintiff limited his claim, for the purposes of that trial only, to the damage caused by the defendants’ dam to the lot of thirty-three aci’es, described in the declaration. The plans used on the trial were be referred to in the argument. Said lot is situated in Kingston, about half a mile from Powow river.

<p>A general exception to the charge of the court is not sustainable. Exception should be taken to the particulars objected to.</p> <p>It is not necessary for the party stopping goods in transitu, to show that the consignee failed after the contract. It is sufficient if his failure becomes known after the sale.</p> <p>Any agent, authorized to act for the consignor, either generally or in relation to the consignment in question, may stop goods in transitu, without any authority to adopt that particular measure.</p> <p>In case of questions arising, the carrier has the right to a reasonable time to ascertain the facts, and the agent to produce his authority and to furnish an indemnity.</p> <p>The right of stoppage terminates only with an actual delivery, unless the carrier consents to hold the goods for the consignee, or wrongfully refuses to deliver them.</p> <p>A notice to the carrier not to deliver the goods is enough ; a demand of delivery is not necessary.</p> <p>Direct proof of insolvency is not necessary; it may be proved by circumstances.</p>

Writ oe Entry. The plaintiff made title under an extent upon the demanded premises on an execution issued on a judgment recovered against George Hayes, March term, 1857. He put in evidence the judgment, and the note on which it was founded, dated July 6, 1855, and signed by George Hayes. An attachment. was made in that suit, October 9,1855, of the demanded premises.

<p>Debt upon a recognizance. The writ was dated. J uly 6,1860, and the declaration set forth, “ that at said Dover, on the seventh day of January, 1860, before one Thomas E. Sawyer, a justice of the peace within and for said county of Strafford, duly authorized by law to take the recognizance hereinafter set forth, came Isaac Farrar, of Brooklyn, in the county of Kings and State of New-York, physician, and David Davis, of Hillsborough, in the county of Hillsborough aforesaid, yeoman, and John II. Wiggins, of Dover, in said county, esquire, and jointly and severally acknowledged themselves indebted to the State of New-Harapshire in the sum of ten hundred dollars, to be levied of their goods and chattels, lands and tenements, and in default thereof upon their bodies respectively, if default be made upon the conditions following: The condition of this recognizance is such, that whereas Dorothy Huntress, of Dover, in said county of Strafford, widow, on the fifteenth day of October, 1859, exhibited to Wolcott Hamlin, Esq., a justice of the peace for said county of Strafford, her complaint on oath, that said Isaac Farrar, on the eighth day. of October, in the year of our Lord one thousand eight hundred and fifty-nine, at Dover aforesaid, in the county of Strafford aforesaid, without lawful authority, unlawfully and feloniously did forcibly make an assault upon one Gelietta Farrar, and then and there, unlawfully and feloniously, without the consent of said Gelietta Farrar, and against her will, did forcibly imprison her, the said Gelietta Farrar, and detain her in prison a long time, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State; and the said Dorothy Huntress, on oath further complains, that Isaac Farrar aforesaid, at Dover aforesaid, in the county of Strafford aforesaid, on the eighth day of October, in the year of our Lord one thousand eight hundred and fifty-nine, with force . and arms, without lawful authority, and unlawfully and feloniously, did make an assault upon one Gelietta Farrar, and did forcibly carry her, the said Gelietta Farrar, out of the State of New-Hampshire aforesaid, and into the State of Maine, without the consent of her, the said Gelietta, and against her will, contrary to the form of the statute in such case made and .provided, and against the peace and dignity of the State; and whereas the said Isaac Farrar being afterward, on the fifteenth day of October aforesaid, brought, by virtue of a warrant duly issued by said justice on said complaint, before the police court of the city of Dover, in said county of Strafford, upon a hearing of said complaint, it was ordered by said police court that the said Isaac Farrar recognize in the sum of ten hundred dollars, with two sufficient sureties in the same sum each, to appear at the trial term of the Supreme Judicial Court, next to be held at said Dover, on the second Tuesday of February, 1860, and abide the order of said Supreme Judicial Court, and in the mean time to keep the peace and be of good behavior, and stand committed till said order be performed ; now if said Isaac Farrar shall make his personal appearance at the court aforesaid, and then and there answer to all such matters and things as may be objected against him in behalf of said State-, and there wait and abide the order of said court, and not depart without leave of the court, then this recognizance shall be void. And the plaintiff avers that certified copies of the process and record of said proceedings before said police court, and also of the record of said recognizance, were duly returned to and filed in said Supreme Judicial Court, and are now7 records of the same. And the plaintiff further avers that the said Isaac Farrar did not make his personal appearance at the said term of said Supreme Judicial Court, and did not then and there abide the order of said court, and not depart without leave of the court, but being then and there called to come into court and answmr to the State of New-Hampshire according to the tenor of bis recognizance, he did not come into court and answer to said State, but then and there made default, as by the record thereof now remaining in said court more fully appears ; and the said John H. Wiggins and David Davis, being then and there called to come into court and bring with them the body of Isaac Farrar, as by their said recognizance they stood bound to do, did not bring in the body of said Isaac Farrar, but made default, as by the record thereof now remaining in said court more fully appears; whereby an action hath accrued to the State of New-Hampshire to have and recover of said David Davis the sum of ten hundred dollars; yet, though often requested, the said defendant has not paid said sum, but neglects and refuses so to do ; to the damage of the said plaintiff (as he says) the sum of ten hundred dollars.”</p> <p>To this declaration the defendant demurred, and assigned the following causes of demurrer, namely:</p> <p>“ 1. Because it is not in said declaration stated or alleged that the said copies of the said alleged process, and record of the proceedings of the said police court thereon, and of the said alleged recognizance, or any or either of them, were returned to the clerk of the said Supreme Judicial Court on or before the first day of the term thereof, held at said Dover, on the second Tuesday of^February, 1860, or that they or either of them were ever returned to the clerk of said Supreme Judicial Court.</p> <p>2. Because it is not in said declaration alleged by whom the said copies of the process and records, therein alleged to have been returned to said Supreme Judicial Court, or any of them, were certified.</p> <p>3. Because it is not in said declaration alleged where, or on what day, or at what term of said Supreme Judicial Court said alleged copies were returned thereto.</p> <p>4. Because it is not in said declaration alleged that said supposed copies, so alleged to have been returned to said Supreme Judicial Court, were ever filed, enrolled, or recorded in or upon the files, rolls or records of said court.</p> <p>5. Because -it is not in said declaration alleged that the making and issuing of the said supposed complaint and process, and the said alleged proceedings of the said police court thereon, and the taking of said alleged recognizance by the said Thomas E. Sawyer, or any or either of them, appear by the records of the said Supreme Judicial Court.</p> <p>6. Because the said Thomas E. Sawyer was not, by virtue of the said alleged order of the said police court, mentioned and set forth in said declaration, legally authorized or empowered to require or take of or from the said Isaac Farrar and his sureties, or any or. either of them, the recognizance in said declaration mentioned and set forth.</p> <p>T. Because the said alleged recognizance is broader and more onerous than the said alleged order of said police court, and embraces affirmative and material provisions in the condition thereof, that are not contained in, required, or authorized by said alleged order of said police court; one of which is that said Isaac Farrar, at said term of said Supreme Judicial Court, then next to be held at said Dover, on the said second Tuesday of February, 1860, should “ answer to all such matters and things as might be objected against him on behalf of said Stateand another is, that he should “"then and there await the order of said court, and not depart without the leave of said court;” neither of which were embraced in or required by said alleged order of said police court, as recited or set forth in said declaration.</p> <p>8. Because it is alleged in said declaration that the said Isaac Farrar, at said term of said Supreme Judicial Court, held at said Dover, on said second Tuesday of February, 1860, did not depart without leave of said court.</p> <p>9. Because it is not in said declaration alleged that neither the said John II. Wiggins, nor the said David Davis, brought into said court the body of said Isaac Farrar, when called and required so to do, as in said declaration is alleged.</p> <p>10. Because it is not in said declaration alleged on what day the said Isaac Farrar was called to come into court, and made default as in said declaration is alleged, nor on what day the said Wiggins and Davis were called to come into court and bring with them the body of said Isaac Farrar, and made default, as in said declaration is alleged ; nor that they or either of them were ever so called by any officer of said court; nor that they or any or either of them were ever so called in open court; nor that they or either of them were ever three times called in said court.</p> <p>11. Because it is not in said declaration alleged that said Thomas E. Sawyer ever returned or brought said alleged recognizance into said Supreme Judicial Court.</p> <p>And also that the said declaration is in other respects uncertain, informal, and insufficient, &c.”</p> <p>The plaintiff joined the demurrer, and thereupon it was ordered that the questions of law arising upon said demurrer be assigned to the whole court for determination.</p>

The county commissioners for the county of Strafford, pray the opinion of the full court upon the following case, arising in that county: The town of Strafford claims from the county, payment for the support of certain paupers, who, for the purposes of this case, it is admitted are chargeable to the county, unless they gained a settlement in the town of Strafford by reason of the following facts : The paupers (or those from whom they derive settlement) had a settlement in…

<p>This case, by consent of the parties, was tried by the court, and the evidence and allegations of the parties being fully heard and considered,the court found that the defendant was guilty in manner and form, as the plaintiff had declared against him, and assessed the plaintiff's damages at the sum of three hundred dollars ; unless the facts shown by the defendant, as hereafter stated, or any of them, should, in the judgment of the whole court, constitute in law bar to the action; in which case the court found the defendant not guilty.</p> <p>The declaration in several counts, charged that the defendant broke and entered the plaintiff's close, called Clement’s wharf, in Dover, and laid there large quantities of mud, and suffered it to remain there a long time, &c.; that he broke and entered the same close, and cut down a fence there erected, and carried away and converted the materials; that he took and carried away certain posts and boards of the plaintiff; and certain manure and soil of the plaintiff, and converted them to his own use.</p> <p>The defendant, with the general issue, filed a brief statement; that the place where, &c., was a public highway; and he laid the mud there for a short and reasonable time, in transporting the same along said highway; that the fence, &c., was erected across said highway, so that the defendant could not use the same, and he therefore cut down and removed so much thereof as was necessary, and removed the materials to a small and convenient distance, doing no unnecessary damage ; that the place where, &c., is the property of the State ; that there was a custom, &c., for all the inhabitants of Dover, to use the place where, &c., to load and unload mud, &c. ; that the defendant and owners of his farm have a prescriptive right to use the place where, &c., to load and unload mud, &e.; that the fence obstructed the use of his said customary and prescriptive rights, and he therefore cut it down, &c.; that the plaintiff’ gave the defendant license to use this wharf, &c.</p> <p>The facts of the case are that the place where the trespass is alleged, is a part of the shore of the navigable tide waters of Cochecho river, between high and low water mark, and a narrow strip of upland, adjoining between high water mark and the general line of the Gulf road, so called, the upland being owned in part by the plaintiff. On this narrow strip of land and the shore of the river, the plaintiff’s father, under whom the plaintiff claims, and himself, about 1834, erected a low wharf, for landing mud, weeds, and grass, for manure. Before that time the place was called a landing, and afterward it was indifferently called a wharf or landing.</p> <p>In 1821 a highway was laid out on the same side of the river, which has always been since used and is called the Gulf road. This road, at the place in question, came near to the bank of the river, and the selectmen, for the length of fiv,e rods, at this place, bounded the road by low water mark on the river, and thereby included the whole of the place where, &c., in this highway, if they had power to do so. Several objections were made to this laying out.</p> <p>No petition, or order of notice, or hearing, or award, or payment of damages to the owner of this land, is shown by the record, or otherwise. The records were searched and nothing found on the subject.</p> <p>The first record relating to the road is an article in the warrant for a town meeting, “ To see what the town will do respecting the laying out of a road from "W. Flagg’s to the turnpike, now pending in the court of sessions.” The town appointed a committee, and on their report “ Voted, that the selectmen be a committee to lay out a road from Dover landing to Flagg’s farm, provided the land through which the road may pass shall be given by the owners, or purchased by subscription.”</p> <p>The record of laying out begins, “ Agreeably to a vote of the town, we, the subscribers, selectmen of Dover, and a committee,” &c., “ have laid out,” &c. Damages ten dollars are allowed to the estate of Daniel Waldron, and then it is added, “ We consider the remainder of said land raised in value by making said road.”</p> <p>Copies from the Dover records were offered to show the laying out in 1795, of a way to the river, over the land now owned by the plaintiff) and some evidence of the use of the land as a way before 1821; but it appeared that said way has not been used since 1821, and it has since been inclosed with the plaintiff’s land. Reference was to be made to these copies on the argument.</p> <p>In April, 1845, the selectmen, upon a petition praying “ for a new highway, beginning at a hub by the side of the Gulf road, near Clement’s store-house, thence southerly to the Cochecho river to low water mark,” laid out a new highway, “beginning on the southerly line of the Gulf road, at W. B. Wiggins’ land (which adjoined the place where, &e.), and extending westerly on the Gulf road six rods and twenty links (which comes near Clement’s storehouse), extending southerly to low water mark, the westerly side line bearing south 21° east, and the easterly side line the line of Wiggins’ land.” This description included the whole of the place where, &c. Damages were awarded to C. Clement, the plaintiff) ten dollars. To this record it is objected that no proper termini of the road are described in the petition ; that selectmen have no authority to lay out a landing, and this is a mere landing; that the notice given to the plaintiff was insufficient. The notice commenced, “ You are hereby notified,” &c., but no name of any person addressed was inserted, aud no damages were paid to him.</p> <p>To these objections it is answered, that the plaintiff’ attended and objected to the laying out, but made no objection on any of these grounds, and so was the evidence; and that the damages were tendered to him. The evidence tended to show that the damages were in fact tendered to him by one of the selectmen, but no express authority was shown from the other selectmen to make the tender. It appeared that the subject was talked of at the board, and it was understood by them that the tender was to be made, but no one was designated to do it. At the hearing on this petition the plaintiff said he had never denied any body the right to use the landing.</p> <p>In April, 1854, a petition, signed by the plaintiff) defendant, and others, was presented to the selectmen of Dover, praying that the public highway, from Portland street to the house of John Burns (the Gulf road), should be made wider and straighter. A hearing was appointed, and notice given to the plaintiff and others, and at the day appointed a hearing was had at which the plaintiff attended, and the selectmen laid out numerous widenings and straightenings of the road (not here material), some of which were on the plaintiff’s land, and among others one in these words, “ from said last mentioned stake, the northerly side line of.said highway runs north 85° east, five rods seven links, to a willow tree, spotted, and between said last mentioned stake and said willow tree, the southerly side of said highway is the northerly bank of Cocheeho river, extending from a point on the river bank bearing south 2° east from the last mentioned stake to a point on said river bank bearing south 2° east from said willow tree.” This description included the whole of the place where, &c., unless the term “bank” is limited to the original and natural high water mark, in which case it included the place where the fence stood, but not that where the mud was laid. Damages were awarded among others to Charles Clement, the plaintiff, “ fifty-eight dollars, exclusive of moving fence and wall.” The fence here in question was not then erected.</p> <p>The plaintiff objects that no damages have ever been paid to him for the place where, &c. The defendants allege that these damages were paid, and the evidence tends to prove that after the award, the selectmen negotiated with the plaintiff to remove his fence and wall; that the plaintiff claimed $150 for his damages, and pay for moving his fences, which the selectmen declined to pay; that after repeated conferences the plaintiff’agreed to take $145, as the selectmen understood, for his damages and for moving his fences; but as he and a witness understood for his damages for the land taken to make the road three rods wide, and for moving his fences, excluding the wharf.</p> <p>The plaintiff' claimed this sum of the town treasurer, but it was not then paid for want of money in the treasury. The next year the plaintiff was himself town treasurer, and he drew' a check on the bank, having the town funds, in his own favor for that sum, and he credited himself as treasurer on the books, “ Paid Charles Clement for land for road, $145.” At the same time he filed among the receipts of the town a writing as follows :</p> <p>“Dover, December 1, 1854. For and in consideration of $145 paid by the selectmen of Dover, I hereby agree to the following terms: namely, to turn out land on the Gulf road against my land, beginning at John Trickeyls land on the northerly side of said road, and running to George P. Folsom’s land on the southerly side of said road to my land, thence on the northerly side of said road to the corner opposite to the house of John Burns, meaning to turn out land enough to make the road three rods wide and build the</p> <p>“ May 27, 1854. To my derrick, three days, at 6 s., $8.00</p> <p>145.00</p> <p>Received payment, $148.00</p> <p>August 4, 1855.</p> <p>Charles Clement.”</p> <p>It did not appeal’ that the selectmen had any knowledge of this payment or writing which were made before the acts alleged in the declaration. The plaintiff as highway surveyor, had repaired the Gulf road before the laying out of 1845, and since the laying out of 1854.</p> <p>It appeared that the mud in question belonged to the defendant, was brought up the river by him, and landed from a gondola upon the low wharf, and removed without unreasonable delay to the defendant’s farm, to be used as manure.</p> <p>It appeared that before the facts here in controversy occurred, the town of Dover was indicted for neglect to widen and straighten said road, according to the return of 1854. A fine was imposed, execution issued, and an agent appointed to expend the same, so that it was said he had his remedy for his damages by execution, and no tender was necessary.</p> <p>By direction of the agent, the plaintiff’s manure was scraped away and the passage cleared and made easier over the whole of the place where, &c., little being done toward the river.</p> <p>The fence in question was erected between the roadway and the wharf above high water mark, and along the general line of the fences on the road. The defendant cut down the posts and tore off' the hoards of the fence so far as was necessary to enable him to go upon the wharf with his team, but did no other unnecessary damage.</p> <p>It appeared that the plaintiff knew that the defendant had several times landed mud on the place where, &e., and hauled it away, and never objected to his doing so before the commencement of this suit, except by building the fence, after the defendant had landed his mud there and before he had hauled it all away. The defendant could not then haul away his mud without removing this fence, or removing posts set in the land owned in part by the plaintiff which were not in the highway.</p> <p>Several years since a store-house, erected on a wharf partly owned by the plaintiff, adjoining the place where, &c., was used as a slaughter-house, and a part of the low wharf was fenced in and used for a hog-pen, in which the plaintiff kept his hogs, and the manure they made was his. Two or three years before the alleged taking of the plaintiff’s manure, the store-house ceased to be so used, and the hogs were removed, but not the manure. The manure alleged to be taken was a deposit lying at the end of the wharf, on flats in the river bed. The plaintiff claimed that it was chiefly manure carried down by the rains and tides from his hog-yard, while the defendant’s evidence tended to prove that it was chiefly mud casually lost over into the dock in unloading his gondolas. It was.probably derived from both sources, and mixed with the sand of the shore by the tides.</p> <p>No custom or prescription, such as were alleged in the brief statement were proved.</p>

<p>A vote by the directors of an insurance company, indefinitely to postpone the subject of a loss, -will bo construed as a refusal to allow any thing on account of it.</p> <p>Such a refusal will not be deemed a waiver of a condition of the policy, which requires notice of the loss to be given within thirty days.</p> <p>If the condition requires notice of the loss to be given in writing to the secretary, or one of the directors, notice by parol to an agent will be of no effect.</p> <p>A condition that no recovery shall be had, unless suit is brought within a certain time, is valid.</p>

Trespass, for taking and carrying away timber trees from lot 32, in the 6th range of the north division of Albany. Writ, dated June 13, 1859. Plea, the general issue, with a brief statement. There was evidence tending to show that the defendant took some trees on the south side of and near to a certain ancient and well marked line. Lot 32 has the same width as range 6.

In case, the declaration set forth, that ou the 3d day of September, 1858, the defendants owned a railroad passing through Troy, and used upon it steam locomotive engines, the plaintiff owned a barn and other buildings and property, situated in said Troy near said railroad ; and the said defendants so conducted their business, that the plaintiff’s said barn, &c., was set fire to, and consumed by fire from their locomotive engines, to his damage, &c. There was evidence…

<p>Where a judgment creditor makes a valid levy of his execution on land, in which the debtor has an estate for his own life, and the debtor’s interest in the land and its income are set off to such creditor at a yearly value, “ to continue” for a term of years, “should the debtor so long live,” in full satisfaction of the execution, &c., the judgment debt is satisfied by such levy, although the debtor die before the expiration of such term of years.</p>

Assumpsit on an account for goods sold and delivered, shown by the plaintiff’s specification to amount to §5167.75. The defendant pleaded in abatement, that the promises declared on were made by him jointly with Henry Pond, and not by him alone; and the plaintiff replied that they were made by Wood alone.

<p>Assumpsit to recover the amount due upon a promissory note, of which tbe following is a copy :</p> <p>“Eor value received iu policy No. 18, insured by tbe Unity Mutual Eire Insurance Company, on the 1st day of January, 1858, for $1,000, I promise to pay said company, or their treasurer for the time being,' tbe sum of fifty dollars, in such portions and at such time or times as the directors of said company, agreeably to their articles of agreement and by-laws, require.</p> <p>$50. Joseph Cram.”</p> <p>Indorsed on the back of said note is the following : *</p> <p>“ No. 18. Deposit Note $50. Received fifty cents, being one per cent of this note.</p> <p>A. Perkins, Treasurer.”</p> <p>The writ is dated August 13, 1861, and contains two special counts, and a count for mpuey had and received.</p> <p>■ The plaintiff’s book of records commences as follows:</p> <p>“ Proceedings of the Unity M. E. Ins. Company.”</p> <p>“ NOTICE.</p> <p>The inhabitants of tbe town of Unity are hereby notified that a meeting will be held at the Town Hall, in Hnity, on Thursday, the first day of October next, at 1 o’clock p. m., for the purpose of considering the expediency of forming a Mutual Eire Insurance Company in said town, and for organizing the same, if thought proper, agreeably to the provisions of chapter 152 of the Compiled Statutes of Neiv-Hampshire.</p> <p>Amos Perkins,</p> <p>Jenison Glidden,</p> <p>J. H. Straw,</p> <p>J. B. Perkins,</p> <p>John Gilmore.</p> <p>Unity, September 15,1857.</p> <p>“ STATE OE NEW-HAMPSHIRE — Sullivan ss.</p> <p>Unity, October 1, 1857. Agreeably to the above notice, the inhabitants of Unity met at the town hall, and proceeded to transact the following business, to wit:</p> <p>1. Made choice of John Gilmore, Esq., Chairman. 2. Chose Amos Perkins, Secretary. 8. Voted to circulate notices through town to obtain subscribers, favorable to the formation of the contemplated association. 4. Voted to adjourn to the 17th day of October instant, to meet at this place at 1 o’clock p. M.</p> <p>A. Perkins, Secretary.”</p> <p>“October 17, 1857. Met pursuant, to adjournment, when, the Chair being vacant, chose Moses Johnson, Chairman pro tern. Voted to adjourn to Saturday, the 7th day of November next, at 1 o’clock p. m.-, at this place.</p> <p>A. Perkins, Secretary.”</p> <p>“November 7,1857. Met agreeably to adjournment. Voted that it is expedient to form ourselves into a company by the name and style of ‘ the Unity Mutual Eire Insurance Company.’ Adjourned to the 21st day of November instant, at 1 o’clock in the afternoon.</p> <p>A. Perkins, Secretary.”</p> <p>“November 21,1847. Met pursuant to adjournment, and proceeded to the following business: 1. Voted unanimously to publish, in the Argus & Spectator, the following</p> <p>notice.</p> <p>Public notice is hereby given that we, the subscribers, of Unity, in the county of Sullivan and State of New-ITampshire, have this day, pursuant to previous notice, met at the town hall in said Unity, and organized ourselves into a corporation as a Mutual Eire Insurance Company, by the name and style of ‘ the Unity Mutual Eire Insurance Company,’ for the purpose of insuring our respective dwelling-houses and other buildings,’ with their contents, against loss or damage by fire, subject to such restrictions as may be hereafter adopted, agreeably to the provisions of ch. 152 of the Compiled Laws of said State. Dated at Unity, the 21st day of November, A. D. 1857.</p> <p>(Signed) Amos Perkins, John Gilmore, Benjamin Quimbv, Aaron C. Marshall, John Lufkin, Jenison Glidden, "William C. Hobart.</p> <p>2. Voted to choose a committee of three to prepare articles of agreement and by-laws for the company, and report at the next meeting.</p> <p>Made choice of Amos Perkins, John Gilmore, and Benjamin Quimby, said committee.</p> <p>Voted to adjourn to the 5th day of December next, at 1 o’clock p. m. A. Perkins, Secretary.”</p> <p>“ December 5, 1857. Met agreeably to adjournment.</p> <p>1. The committee appointed for the purpose reported a form of a blank policy, together with articles of agreement and by-laws for said association; ’also, application for insurance; which report, after a slight amendment, was unanimously accepted and adopted by the company.</p> <p>The application, blank policy, articles of agreement, and by-laws, reported by the committee, are as follows in printed form.”</p> <p>The first notice referred to in the records was given by posting up a copy of the same at the post-office in said Unity, on the day of the date thereof.</p> <p>The second notice referred to in the records, including the signatures thereto, was written by the secretary, and was published three weeks successively in the Argus & Spectator, the first publication being November 27,1857.</p> <p>After these records were attached, firstly, a printed form, for an insurance application and premium note, similar in form to the note in suit; and, secondly, a printed form for a policy of insurance, on the back of which are printed, “ Articles of Agreement,” and printed “By-Laws.” The printed “Articles of Agreement,” containing ten different articles, were not subscribed by anyone; but the first and second articles were in the following language :</p> <p>“Article 1. "We, Amos Perkins, John Gilmore, Benjamin Quimbv, Aaron C. Marshall, Nathaniel Lull, John Lufkin, William C. Hobart, Silas M. Gee, Absalom Millen, Joseph M. Perkins, Joel Bartlett, Nathan Glidden, and Moses Johnson, do hereby associate together by the name of the Unity Mutual Pire Insurance Company, for the. purpose of insuring our respective dwelling-houses and other buildings, with their contents, against loss or damage by fire, lightning, or any other means, excepting that of design in the insured, or by invasion of an enemy, or insurrection of the citizens of this or any other of the United States; and by that name may sue and be sued, plead and be impleaded, appeal’, pi’osecute and defend, in any coux’t of record, or other place whatsoever; may use a common seal; may make, establish, and put in opei’ation such by-laws, ordinances and resolutions, not being contx’ary to the laws of the State, as may seem necessary for the regulation, government, and purposes of this association.</p> <p>Article 2. All persons who shall become interested in said company, by being insured therein, and also their respective heirs, executors, administrators and assigns, continuing to be insured therein, shall be deemed and taken to be members thereof for and during the term specified in their respective policies, and no longer, and shall at all times be concluded and bound by the provisions of these ai’ticles.”</p> <p>In said printed form of “ by-laws” are these provisions :</p> <p>“All assessments shall be determined by the directors, and notice thereof given, by posting up an advertisement in three or moi’e public places in Unity, thirty days prior to the time of such payment.” “And if any member shall, for the space of thirty days after such xxotice, neglect or refuse to pay the amount assessed on them as their proportion of loss, as aforesaid, in such case the whole amount of said note or notes may be sued for and recovered, with costs of suit. The money thus collected is to remain in the treasury, subject to its proportion of such losses and expenses as may thereafter accrue during the time of such insurance; the balance, if any, to be returned to the insured after thirty days from the expiration of said term.” ■</p> <p>After said printed forms, the records are continued as follows :</p> <p>“ 2. Proceeded to organize agreeably to the articles of agreement and by-laws of the company, just adopted. Yoted to choose three director's to serve until the next annual meeting. Made choice of John Gilmore, Aaron O. Marshall, and Silas M. Gee, Directors. Made choice of Amos Perkins, Secretary. Chose Amos Perkins, Treasurer. Yoted to procure one hundred blank policies, and the same number of blank applications printed.</p> <p>Yoted to commence issuing policies of insurance on the 1st day of January, A. D. 1858. Adjourned.</p> <p>A. Perkins, Secretary.</p> <p>A true record — attest: A. Perkins, Secretary.”</p> <p>It appears from the records that November 6, 1858, the directors voted, for the purpose of paying the liabilities of the company, to levy and collect an assessment of twenty-four per cent of the whole amount .of the premium notes of the company, to be paid to the treasurer on or before the first day of January, 1859.</p> <p>The records also show that the company, prior to June 1, 1859, had insured property to the amount of $26,240 only, and prior to June 6, 1860, property to the amount of $49,940 only.</p> <p>The records also show that the company has sustained but one loss; that such loss was in October, 1858, and for $825, which, though adjusted prior to June 1, 1859, has never been paid only in part.</p> <p>It also appears from the records that at a meeting of the company, June 1,1859, it was voted that the secretary procure the signatures of all the members of the company to the articles of agreement and by-laws of the association, though this was never done, except as hereinafter stated.</p> <p>June 2, 1858, the directors, as the records show, reported the standing of the company as follows:</p> <p>Whole amount insured, $24,840.00</p> <p>Whole number of policies issued, thirty-seven.</p> <p>Whole amount of capital stock on premium notes, 1,270.00</p> <p>Cash premiums received, 12.70</p> <p>Paid printers, $11.00</p> <p>Blank books, .45</p> <p>- $11.45</p> <p>Cash on hand, 1.25</p> <p>June 1, 1859, as the records further show, the directors reported the affairs of the company as follows :</p> <p>Whole amount insured, $26,240.00</p> <p>Whole amount of capital stock, or premium notes, 1,348.00</p> <p>Loss sustained by the company in October last, 325.00</p> <p>Cash premiums received, including $1.25 on hand at last annual meeting, 2.03</p> <p>Cash received on assessments, and paid to Mr. Nichols, 142.24</p> <p>Paid for blank book, . .20</p> <p>Amount due Mr. Nichols toward said loss, $180.76</p> <p>On the 6th of November, 1858, there were no liabilities of the company except the Nichols loss of $325.</p> <p>The condition of the company was never examined into by the Insurance Commissioners of the State. In said printed “Articles of Agreement” there is no limitation of insurance to the town of Unity, but in said printed “ By-Laws” there is such a limitation.</p> <p>On the first of January, 1858, the defendant, supposing the company had the right to issue policies of insurance, though knowing nothing of their proceedings, received from the secretary a policy of insurance, purporting to be issued by the company, and to insure his property for the sum of one thousand dollars for six years, for which policy the defendant paid fifty cents, and gave the note in suit. Such policy was in form similar to the printed form before referred to, and on the back of the policy were articles of agreement and by-laws, similar to those before referred to; and previous to or at the time of taking said policy he signed and delivered to said company an application, filled up by the secretary, like in form to the printed application herein before referred to, said premium note being on the same sheet of paper. In such application the defendant, among other things, “ held himself bound and obliged, according to the articles of agreement and by-laws annexed to his policy.”</p> <p>Notice of the assessment of the 6th of November, A. U. 1858, 'was given by posting up in three public places, in the town of Unity, on the 25th day of November, A. D. 1858, a notice, of which the following is a copy :</p> <p>“Insurance Notice. The members of the Unity Mutual Fire Insurance Company are hereby notified that an assessment of twenty-four per cent upon all the premium notes has been made and levied by the directors, to be paid to the treasurer for the time being on or before the first day of January, A. D. 1859. Assessments being the order of the day, it is expected that every member will promptly pay their proportion of the extraordinary loss which has recently occurred in the company, and thereby avoid the liabilities imposed by the second and third sections of the by-laws of the corporation. Per order of the directors.</p> <p>Unity, November 8, 1858. Amos Perkins, Secretary.”</p> <p>It was agreed that if the court shall be of opinion that the plaintiffs were a corporation on the 1st day of January, A. D. 1858, and as such had a right to issue a policy of insurance to the defendant, and that the assessment made on the 6th day of November, A. D. 1858, was legally made, judgment shall be rendered for the plaintiffs; otherwise judgment shall be rendered for the defendant, with liberty of review to either party; and the questions of law arising on the case were reserved and transferred to the law term.</p>

Assumpsit against the two defendants, Bela J. Fletcher and Lewis ~W. Bandall, and six others, described as late partners in trade, and all recently doing business at said Claremont, under the firm of “Division No. 47, Working Men’s Protective Union.” The declaration set forth that the defendants, “on the 13th day of August, 1856, then doing business as aforesaid, at said Claremont, by their promissory note of that date, subscribed by their president, Simeon Haywood, and…

<p>Where a husband purchases land, and the deed is taken to his wife, prima facie, no trust results in his favor.</p> <p>Where money raised by a mortgage of the wife’s land is held by her, and the husband has not assumed the mortgage debt, or attempted to control the money borrowed, she is not liable in foreign attachment as trustee of her husband on account of such money.</p>