Volume 44 — New Hampshire Reports

<p>Trespass quare clausum fregit.</p> <p>The plaintiff’s declaration embraced two counts. The first count alleged a breaking and entry by the defendant with force and arms of the close of the plaintiff, being his homestead farm, in Holderness, and consisting of about forty acres of land, on the 15th of September, 1860, and on divers other days and times between that day and the day of the date of the writ, and without the license of the plaintiff', entering with force, as aforesaid, his close and dwelling-house, and for the space of ten days keeping the plaintiff from the use and enjoyment of said close, against the plaintiff’s will, &c. The second count alleges the breaking and entry of the defendant as on the first day of October aforesaid, &e. Plea, the general issue.</p> <p>This action was by the consent of parties tried by the court at this term. The plaintiff offered in evidence, as his title to said premises, an "original deed of warranty, duly executed, acknowledged, and recorded, from Horatio N. Smith and Eliza L. Smith to himself, dated March 4, 1839, recorded December 2, 1840, embracing the land in the plaintiff’s declaration mentioned. The plaintiff proved that he entered and occupied the premises for many years since the date of said deed.</p> <p>On the part of the defendant it was shown that said Rollins, the plaintiff, and his wife Mary, by their deed dated November 22, A. D. 1856, and duly acknowledged and recorded, conveyed the same premises, with certain reservations, to their son, George ~W. Rollins, under the covenants to stand seized, &c., and this deed makes a part of this case.</p> <p>The defendant also offered in evidence a deed of release or quitclaim from said George "W. Rollins to the defendant, embracing the same premises, with the special reservations to the said plaintiff and his wife Mary, dated September 24, 1860, acknowledged the same day, and recorded October 2. The consiclez-ation of said deed pui’ported to be $90.</p> <p>Under the evidence in the case the plaintiff claimed that the estate of the said Geoz-ge "W. Rollins in said lands had been forfeited.</p> <p>The plaintiff offered evidence tending to show that said Geoi’ge had z’efused to pz’ovide his father Levi with suitable clothing, namely, ozze outside coat, one vest, and one pair of shoes; the father having requested the son to furnish this clothing during the existence of his contz’act, and prior to the son’s conveyance to the defendant. This clothing, being necessary to the father, was refused by the son. To sustain the trespass the plaintiff testified that he 'was residing on the premises at the time the defendant purchased them; that he told him not to come there, but that against his consent and remonstrance the defendant entered into said premises and said dwelling-house, and took forcible possession thereof, or of so much of said premises as had before been occupied by the son.</p> <p>The defendant contradicted the plaintiff upon the point of license. Upon the weight of evidence the court, however, found that if the plaintiff can maintain this action by law, he is entitled to recover, as damages, fourteen dollars of the defendant, as upon a verdict rendered by the jury. Upon the evidence the defendant excepted, and claimed that this action can not be maintained, and moved that the finding of the court be set aside.</p> <p>The deed was as follows:</p> <p>“ Know all men by these presents, that we, Levi S. Rollins, of Iiolderness,.in the county of Grafton and State of New-Hampshire, and Mary F. Rollins, wife of the said Levi S. Rollins, in considez’ation of the love and affection we bear our son, George W. Rollins, of the same ITolderness, do, for ourselves and our heirs, covenant with the said George W. Rollins and his heirs, that we will henceforth stand seized of our homestead farm, situate in said Holderness, containing forty acres, more or less, conveyed to us by Thomas and Charles C. Eastman, by their deed of even date herewith, reference thereto being had for a particular description thereof, with all the privileges and appurtenances to the same belonging, for the uses and pui’poses following, that is to say, to our own use during our natural lives and the natural life of the survivor of us, without impeachment of waste, and after our decease, or the decease of the survivor of us, to the use of the said George 'W. Iiollins, his heirs and assigns for ever ; —</p> <p>11</p> <p>Provided, however, that if the said George W. Rollins shall neglect or refuse to maintain us and the survivor of us during our natural lives, upon said premises, to find and furnish for us and for the survivor of us all such proper and necessary food, meat, drink, clothing and medicine, according to our degree and standing, and to maintain us and the survivor of us during our natural lives and the natural life of the survivor, properly and fully, upon our allowing him the use of said farm and the easterly half of the house, then this conveyance shall be void; otherwise to remain in full force.</p> <p>In witness whereof w'e have hereunto set our hands and seals, this twenty-second day of November, A. D. 1856.</p> <p>Levi S. Rollins. [Seal.']</p> <p>Mary P. Rollins. [GeaZ.]</p> <p>Signed, sealed and delivered in presence of Charles C. Eastman,</p> <p>Joseph Burrows.</p> <p>This deed was duly acknowledged and recorded.</p> <p>The questions of law arising upon the case were reserved, and, transferred to the law term.</p>

Assumpsit. The facts were agreed as follows: That the plaintiff labored for the defendant prior to the 4th day of September, A. D. 1860; that the defendant was on that day indebted to the plaintiff in the sum of seventy-five dollars for such labor; that on or about that day the defendant’s minor daughter, then living with him, complained to her father that the plaintiff had committed upon her the crime of rape; that thereupon the plaintiff asked the defendant if it could not…

Trespass for taking the plaintiffs cow. The defendant is a deputy sheriff, and took the cow by virtue of a writ of attachment in favor of one Moses Pike against the plaintiff, and sold the same in conformity to the provisions of the statute in relation to the attachment of living animals.

This was an action of assumpsit, and tried at the Court of Common Pleas at Plymouth, at the May term, 1858, upon the general issue, with a set-off filed. The jury found a verdict for the defendants upon the set-off for thirteen dollars twenty-two cents.

<p>In assumpsit upon a parol contract, any material variance between tbe statement of tbe consideration, as contained in tbe declaration and the proof, will be fatal.</p> <p>A plaintiff who has performed his part of a special contract, and seeks to recover of the defendant the sum due under the contract, can not recover upon the general counts, where the amount due is not liquidated, and where the contract is such that the law would not, from the transactions between the parties, in the absence of such express agreement, confer the same rights and impose the same duties and obligations as those conferred and imposed by such contract.</p> <p>Band set off upon execution was described as bounded properly on three sides, and on the fourth as bounded by “Court Square, or land of William ColburnHeld, that the description was sufficient.</p> <p>Our statute makes the swearing of an appraiser upon an execution the commencement of a levy upon real estate.</p> <p>A levy of an execution upon land will be considered as taking effect, by relation, from the time when such levy was commenced, if followed seasonably by a compliance with the requirements of the law.</p> <p>Therefore, where B was liable over to A to indemnify him against all damages and costs in a suit in which A was defendant, and a judgment be recovered against A, and a levy upon his real estate was commenced by swearing an appraiser, he may sue B immediately, and if the levy is afterward completed according to law, and the execution thereby satisfied, he may recover of B, in such suit, the whole amount for which his land was thus set off, including costs of set-off.</p> <p>Where a warrantor or guarantor, either voluntarily or upon notice, comes in to defend a suit against one to whom he is liable over, he comes in subject to all such reasonable rules and orders as the court may see fit to make in the case.</p> <p>Therefore, in a suit against A, to whom B is liable over, if B comes in to defend, and the court order him, upon the motion of A, to furnish A security for costs in tbe suit, and thereupon B abandon the defense without complying with such order, he will bo concluded by a judgment against A the same as though he had made full defense.</p>

This action was brought to recover the amount of a physician’s bill for services and medicine rendered and furnished to a poor person, having his settlement in Benton. The defendants denied that the plaintiff was employed by the town or its officers, and the principal dispute in the case related to that question. In charging the jury the court stated to them that there is no general liability on the part of towns to pay for services or supplies furnished to paupers.

Assumpsit. The plaintiff’s declaration .embraced sundry counts, among which there was one for §150, money had and received, &c.; another for a like sum, for labor and services done and performed, and materials provided by tlie plaintiffs, at the defendant’s request; another count as on an account stated, alleging that the parties reckoned the plaintiffs’ blacksmith account and settled it, and found due the plaintiffs $80, on the 4th of April, 1856, and then the defendant…

<p>"Where one of two tenants in common of a quantity of “ shot iron,” took possession of all of the iron, and mixed it with other iron, and manufactured the mixture into various iron wares, so that the common property could no longer be traced or identified, and afterward sold or disposed of these wares ;— Held, that these acts amounted to a conversion of the share of his co-tenant.</p>

The trustee, George W. Deane, disclosed that, at the service of the plaintiff’s writ upon him, he had in his possession one pair of two years’ old steers, one two years’ old heifer and one yearling, and thirteen lambs, which have been in his keeping since the spring of 1861 (except twelve of the lambs, which he sold for $1.75 a head in the summer, and retains the money), and a quantity of oats, which have been kept by him since the spring.

Assumpsit, upon a promissory note for $290, dated October 1, 1857, payable to the plaintiff's, or order, on demand, with interest annually, purporting to be signed by Ephraim Clement, Marinda F. Clement, and Abigail Batchelder. The writ was dated October 22, 1858, and originally run against all the signers of the note; but at the first term of court the name of Marinda F. Clement, who, when she signed it, was a married woman and the wife of Ephraim, ivas stricken therefrom.

Assumpsit, with general counts for $500, for meat, drink, washing, lodging, medical attendance and funeral expenses, provided and incurred at the defendant’s request and agreement, for one Eunice Wheeler, a pauper, chargeable on said Piermont. By an amendment two special counts were added to the declaration.

<p>This was an action of assumpsit for goods sold and delivered to the three defendants, Benjamin F. Dow, Rufus Dow and Hri Lamprey. The defendants were not alleged in the writ.to be partners. The defendant, Lamprey, was a witness for the defendants, who examined him generally as to the transactions out of which the claim in question arose. Hpon cross examination, he was asked if the defendants were partners in those transactions ; and the defendants objected that evidence of partnership was inadmissible, no partnership being alleged in the declaration; but the court overruled the objection and the defendants excepted ; and the evidence was received.</p> <p>The case had been referred to an auditor, and a hearing was had before him. The auditor was called as a witness by the plaintiff, to state the testimony of certain witnesses before him, for the purpose of contradicting their testimony given upon this trial. He testified that he could not state from memory any thing that was testified to by the witnesses before him, but that he took at the time minutes of their testimony, which he believed to be correct. At the plaintiff’s request he read from those minutes what certain witnesses testified on particular points of inquiry. The defendants insisted that all the testimony of those witnesses given at that time should be read. The court ruled that all the testimony of those witnesses relating to the points inquired about by the plaintiff’s counsel should be read, but that their testimony upon other subjects was inadmissible. To this ruling the defendants excepted.</p> <p>The jury found a verdict for the plaintiff, and the defendants moved for a new trial by reason of said exceptions.</p>

Trespass, for taking and carrying away a quantity of spruce and pine boards, plank, timber, and shingles, on the 30th day of April, 1858. Plea, the general issue, and a brief statement that the defendant bought the lumber in question at an auction sale of the same, on execution against one Charles Bailey.

This was a plea of land, wherein the said Wells demanded against the said corporation a piece or parcel of land, with the appurtenances, situated in said county of Coos, and being part of a tract known as Thompson & Meserve’s Purchase, in said county, but not within the limits of any town, and bounded as follows: Beginning at the northwest corner of Pinkham’s Grant, so called, in said county; thence N. 8° W., to the southerly line of Low & Burbank’s Grant, so called; thence…

<p>In the case of a suit before a justice of the peace, and a judgment there for the plaintiff, and an appeal; a replication to a plea of release, seeking to avoid it -by setting up an attorney’s lien upon tbe judgment below, and an absolute assignment of the claim to the attorney, must be regarded as containing but one answer to the pica; and a traverse of the assignment without noticing the rest, was held good on demurrer.</p>

<p>Upon, a petition to selectmen to lay out a new highway, they have no jurisdiction to lay out a highway with termini substantially different from those set out in the petition.</p> <p>"Where a road in a town has not been used twenty years as a public highway, the town is not estopped to show that it has not been legally laid out as a highway.</p> <p>"Where a town votes to discontinue a road in the tpwn, which is not a public highway, a land-owner is not entitled to damages under section 3 of chapter 54 of the Revised Statutes.</p>

In Equity. Tbe bill is brought to redeem certain mortgaged real estate. Answers and a replication having been filed, the parties agree upon the following statement: “In the fall of 1849, Henry D. Cutler, then of Colebrook, N. H., was seized and possessed, in his own right in fee, of the premises described in the plaintiff’s bill. The same fall he erected buildings thereon, and finished off the first story of it as a store, and the remainder as a .dwelling-house.

<p>Under section 1 of chapter 1531 of our statutes, where a mortgagee of real estate seeks to foreclose his mortgage' "by peaceable entry and possession, his published notice must show that his possession of the mortgaged premises was taken for condition broken, and also the object of such possession.</p> <p>A notice, dated November 7, 1856, merely stating that such mortgagee, on the 5th day of August, 1856, took quiet possession of the mortgaged premises by entering upon the same, and therefore claims a foreclosure of the mortgage for condition broken, is insufficient.</p> <p>An unexecuted'agreement by such mortgagee with two of the three mortgagors, to take the mortgaged premises in payment of the mortgage notes, is not evidence of the payment of those notes, in a suit by the mortgagee against an indorser of the notes. "</p> <p>A new agreement, not made or accepted in satisfaction of a former contract, is not a discharge of such former contract.</p> <p>An estoppel is binding only between parties and privies.</p>

In Equity. The bill is stated in 87 N. H. 485. The defendants at first demurred to the bill, but the demurrer was overruled for reasons fully appearing in the former opinion.

In Equity. Sarah Arlin, of Concord, widow, complains against Nathan II. Brown, of Sandwich, in our county of Carroll, yeoman, and several others, children of said Brown, and says that on tjie twenty-fourth day of September, A. D. 1855, being seized thereof in fee-simple, she conveyed, by deed of warranty in common form, to her daughter, Sarah Brown, of said Concord, then alive but since deceased, and being the wife of said Nathan II.

This was an action on the case to recover damages for the loss of the plaintiffs’ bridge, which it was alleged the defendants had carried away by erecting a stone dam across the Merrimack river at Manchester, and putting upon it and maintaining there certain dashboards, and thereby raising the water in said river so as to throw it back around the piers and abutments of the bridge, and to so pond the water there about the said piers and abutments as to cause the ice to freeze…

Assumpsit, to recover a balance claimed to be due the plaintiffs for goods sold and delivered, to which the defendants, Rogers & Batehelder, pleaded the general issue with a set-off, including among other items a charge of $125, for cash, February 5, 1858.

Assumpsit for the support of a pauper alleged to have a settlement in Epsom. This action was commenced December 31, 1861. The support was furnished between December 8, 1860, and July 3, 1861. The notice to Epsom was dated March 5, 1861, served March 6, 1861, and return made to the clerk’s office March 13, 1861. The settlement which the plaintiffs claim that the pauper had in Epsom, was acquired, if at all, prior to January 1, 1820.

<p>Assumpsit, to recover tbe following account to tbe writ annexed, namely,</p> <p> The Proprietors of the Portsmouth Atheneum: </p> <p>To Fogg & Hadley, Dr.</p> <p>1860, Jan. 1. To tbe Independent Democrat from vol. 5, No. 1, to vol. 15, No. 85, inclusive, $21.87</p> <p>Interest on same, 12.00</p> <p>$33.37</p> <p>Also, to recover tbe sum of forty dollars, for tbe paper called tbe Independent Democrat, for the space of eleven years before tbe date of tbe writ, furnished, sold and delivered to the defendants at their request, by tbe plaintiffs, at two dollars per year, and for interest oil money due and owing from tbe defendants to the plaintiffs before tbe date of the writ.</p> <p>The writ was dated July 26,1861. Plea, tbe general issue, with tbe statute of limitations.</p> <p>Tbe case was submitted to tbe decision of tbe court upon tbe following agreed statement of facts:</p> <p>Tbe defendants are a corporation whose object is tbe support of' a library and public reading-room, at which latter a large number' of newspapers are taken. Borne are subscribed and paid for by the, defendants; others are placed there gratuitously by the publishers and others; and some are sent' there apparently for advertising purposes merely, and of course gratuitously.</p> <p>The Independent Democrat newspaper was furnished to tbe defendants, through tbe mail, by its then publishers, from vol. 3, No. 1 [May 1, 1847]. On the 29th day of November, 1848, a bill for the paper, from vol. 3, No. 1 [May 1, 1847], to vol. 5, No. 1 [May 1, 1849], two years, at $1.50 per year, was presented to tbe defendants by one ,T. H. Miller, agent for the then publishers, for payment. The defendants objected that they had never subscribed for tbe paper, and were not bound to pay for it. They at first refused on that ground to pay for it, but finally paid the bill to said Miller, and took upon the back thereof a receipt in tbe following words and figures:</p> <p>Nov. 29, 1848. Tbe within bill paid this day, and tbe paper is henceforth to be discontinued. T. II. Miller, for Hood & Co.</p> <p>Hood & Co. were the publishers of the paper from May 1, 1847, until February 12, 1849, when that firm was dissolved, and the paper was afterward published by the present plaintiff's. The change of publishers was announced, editorially and otherwise, in the paper of February 15, 1849, and the names of the new publishers were conspicuously inserted in each subsequent number of the paper; but it did not appear that the change was actually known to Mr. Hatch, the secretary and treasurer of the corporation, who settled the above named bill, and who continued in the office till January, 1850.</p> <p>The plaintiffs had no knowledge of the agreement of the agent of Hood & Co. to discontinue the paper, as set forth in the receipt of November 29,1848, until notified thereof by the defendants, after they had furnished the paper to the defendants for a year or more; the books of Hood & Co., which came into their hands, only showing that the defendants had paid for the paper, in advance, to May 1, 1849.</p> <p>After the payment of the bill and the giving of the receipt above recited, the paper continued to be regularly forwarded by its publishers, through the mail, to the defendants, from the date of said receipt until May 1, 1849, the expiration of the period named in said bill; and was in like manner forwarded from May 1, 1849, to January. 1, 1860, or from vol. 5, No. 1, to vol. 15, No. 35, inclusive, the period claimed to be recovered for in this suit; and was during all that time constantly taken from the post-office by the parties employed by the defendants to take charge of their reading-room, build fires, &c., and placed in their reading-room. Payment was several times demanded during the latter period, of the defendants, by an agent or agents of the plaintiffs; but the defendants refused to pay, on the ground that they were not subscribers for the paper.</p> <p>Conspicuously printed in each number of the paper sent to and received by the defendants, were the following</p> <p>“ Terms oe Publication : By mail, express, or carrier, $>1.50 a year, in advance; $>2 if not paid within the year. No paper discontinued (except at the option of the publishers) unless all arearages are paid.”</p> <p>The questions arising upon the foregoing case were reserved and assigned to the determination of the whole court.</p>

<p>Trespass quare clausum, and taking and carrying away twenty cords of the plaintiff’s manure, on the 15th day of April, 1860. Writ dated April 16, 1860. Plea, general issue.</p> <p>It appeared that one Darius Bowers had, prior to October 21, 1859, owned the premises in question, subject to a mortgage to one Flint; and that, on said 21st day of October, 1859, said Bowers and his wife conveyed the same to this plaintiff by a deed of quitclaim.</p> <p>Said Flint had, however, previously sued his mortgage against said Bowers, and had, at the October Term, Court of Common Pleas, 1858, recovered a conditional judgment, upon which (January T, 1859) a writ of possession issued, returnable the third Tues-clay of March, 1859; and on the 14th day of March, 1859, possession of the premises was delivered to Flint by the officer. On the back of the writ of possession is the following :</p> <p>“ March 14, 1859. I have this day received full seizin and possession of the within named premises, of John M. Milton, Deputy Sheriff.</p> <p>Thomas W. Carr, Att’y for Lyman T. Flint.”</p> <p>Said Carr continued to occupy the premises in this way, under Flint, until October 27, 1859, on which day said Flint made the following assignment on the back of his writ of possession :</p> <p>“ For value received I hereby sell and assign this execution, and the judgment on which the same issued, and all my interest under the same to the premises herein described, to William Perry, of Hopkinton, his heirs and assigns for ever, reserving to myself all my claim against Thomas W. Carr for the rent and use of said place and premises.</p> <p>Lyman T. Flint. [Seal.]</p> <p>October 27, 1859.”</p> <p>On the 21st day of November, 1859, said Perry, the plaintiff, served upon the defendant (Carr) a notice in writing, in usual form, to quit and deliver up to him (Perry), on the 29th day of the same November, the possession of these premises, described as occupied by Carr and owned by the plaintiff; but no demand for rent had been made by said Perry on said Carr previous to such notice. It appeared that said Carr had remained in possession of the premises in question until after the commencement of this suit, and that this plaintiff never had, until this suit was commenced, been in actual possession of the premises, nor had he received any rent of said Carr or any body else ; and no agreement or contract of any kind was ever made between the plaintiff and Carr in regard to the defendant’s possession or occupancy of the premises.</p> <p>This action was tried by the court, and, upon the above facts being proved, the defendant moved for a nonsuit, upon the ground that the plaintiff’s action could not be maintained; and the court ordered the nonsuit. The plaintiff excepted to the ruling of the court, and also moved for leave to amend his declaration by adding a count in trespass de bonis asportatis.</p>

The libel in this case, filed August 27, 1862, sets forth, that the libelant, John B. Kimball, of Nashua, &c., on the 7th of May, 1857, was married to Lydia S. Coffin of, &e., at Nashua, by Rev. W. H. Eaton, of said Nashua; both the parties, then and since, were inhabitants and residents of. said Nashua, although said John B. Kimball has been temporarily absent in the service of the United States since the month of August last past (1861); he has discharged all his duties,…

Debt on a judgment, recovered in November, 1858, in favor of the plaintiffs against the defendant, for §193.94. M. & S. claimed the exclusive interest in the suit as assignees of the judgment, and so gave notice on the writ.

<p>The power of a railroad corporation to borrow money and mortgage their property is not limited by the usual clause in their charters, that shares shall not bo assessed over §100, and if more money is necessary it shall be raised by creating new shares.</p> <p>An act of the legislature authorizing the trustees under a railroad mortgage to sell the road, is a ratification of the mortgage, so far as the State and public is concerned.</p> <p>A mortgage of a railroad to secure bonds to be issued to raise money to pay the debts of the corporation, is not invalid, as given to secure future advances.</p> <p>A mortgage of the personal property of a railroad company is not invalid if sworn to by the agents who executed it, because they did not sign the oath in behalf of the corporation.</p> <p>Where vacancies in the board of trustees under such a mortgage are to be filled from the bondholders, the election of persons who have procured bonds for the purpose of qualifying themselves, will not be held invalid, if no fraud is intended.</p> <p>A trustee does not cease to be chargeable as such, because he has parted with the bonds required as a qualification.</p> <p>No person can be charged as trustee of a debtor if he is chargeable in equity to a. third person as cestui que trust, whether he holds the property by right or by wrong.</p>

<p>Indictment por perjury. The indictment alleged that the defendant commenced an action of assumpsit against Ira Atwood, which was entered at the Court of Common Pleas, at Amherst, the third Tuesday of April, 1859; the defendant appeared and pleaded that upon the instrument sued, being a note of three hundred dollars, dated December 24, 1853, ten dollars over and above the rate of six dollars on a hundred dollars fortfa year was taken, reserved and secured; and offered to verify his plea by his oath, with a like plea as to another note sued. The action was continued, and transferred to the Supreme Judicial Court, and, at the May term, 1860, the defendant filed replications to said pleas, and denied thereby that he, said Divoll, directly or indirectly took or secured from said Atwood, for the lending, &c., of the sum sued for, &e., any interest above the rate of six dollars for one hundred dollars for one year, and that he had not directly or indirectly, willingly taken or secured in and by said note, sued and described in said first count, &e., any interest above the rate, &c.; and a like replication as to the second count, &c. And thereupon it became and was a material question in said suit, between, &c., before said court,.&c., and to be sworn to by said John L. Divoll, whether any interest above, &c., was taken or secured by, &c., and said John L. Divoll, on the 28d day of May, 1860, at, &c., by his own act and consent in said, &c., court, so held, &c., while said court was open, made and subscribed in said open court, before, &e., the said court last named then and there having competent and sufficient power and authority to administer an oath to said J. L. Divoll in that behalf, wickedly, falsely, willfully, corruptly, and knowingly, the following false and corrupt oath, which is in substance as follows: I (meaning, &c.), J. L. Divoll, of, &c., on oath declare and say that I, (meaning, &c.), have not at any time, directly or indirectly, willingly taken or secured on the money sued for in the action of J. L. D. v. I. A., (meaning, &c.), pending, &c., any interest above the rate of six dollars on one hunched dollars for one year, &c., whereas in truth, &c. (negativing the statements of the oath); and so the said J. L. Divoll, at, &c., on, &c., knowingly, &c., in manner, &c., did commit willful and corrupt perjury, &c.</p> <p>There was a general demurrer.</p>

Case, for flowing the plaintiffs’ land on the Merrimack river, between July 3, 1856, and October 21, 1859, by means of the defendants’ dam and flash-boards, at Amoskeag falls, across said river, below said land, and thereby washing away the soil. The declaration alleged the plaintiffs’ seizin in the right of the wife.

. In Equity. John G-. Raymond, of New-Boston, in this county, complains that he entered into a copartnership with the firm of Putnam & Chase, and with the firm of Came & Palmer, by articles of copartnership as follows : “Articles of copartnership made and concluded this fifth day of May, in the year one thousand eight hundred and fifty-one, by and between the firm of ‘ Putnam & Chase ’ — consisting of Daniel Putnam and Leonard Chase —John G-.

In Equity. A. O. Heath, with C. W. Baldwin and S. H. Edgerly, had given to the Berry bank a note for $800, which sum they jointly and severally, “ all as principals, promised to pay to said bank,” &c.; “giving said bank the right of collecting this note at any time, notwithstanding the payment of interest in advance.” This note had been sued, and there had been a trial at law, and a verdict against all the signers of the note; and upon a case reserved and assigned to the law…

<p>It appeared by the disclosure of the trustee, Benjamin P. Emerson, who is a brother of Edward Emerson, the principal defendant, that on the 28th of December, 1860, said Edward being in embarrassed circumstances, and about to leave the State, and being indebted to the trustee, who was also liable as surety for said Edward to a considerable amount, mortgaged to tbe trustee certain real and personal estate, to secure his debt and liabilities, and that said Edward at the same time left in the hands of the trustee certain negotiable promissory notes, indorsed by the payees thereof, for certain persons to whom said Edward was indebted to the amount of the notes so left for each person, and also left in the trustee’s hands, at the same time, certain notes and mortgages for other creditors of said Edward, said notes being indorsed as aforesaid, and the mortgages assigned by said Edward to the persons for whom they were left, said assignments being in writing, under seal, and executed by said Edward, when so left, and all being left for said creditors unconditionally.</p> <p>On the 30th of said December said trustee inclosed some of said notes in envelopes, and directed the envelopes by name to the persons for whom the notes were left, and so left them in the hands of the wife of said Edward, but without any direction to that efiect from said Edward, to be handed or sent 'to the persons to whom they were directed, she living in the vicinity of such persons.</p> <p>Early in the morning of December 31, 1860, a trustee writ, in favor of Nathan Willoughby against said Edward, was served on the trustee in this suit. The trustee thereupon notified Mrs. Emerson not to deliver said notes or envelopes, as he had been trusteed. During the forenoon of said December 31, one Hardy, for whom one of said notes was left, so directed as aforesaid, and to whom an amount greater than the note was due, called on the trustee, and asked for whatever note was so left for him. The trustee, having the same then in his hands, declined to deliver it on account of said trustee process, saying he should have it if it was not held in that process. During the same forenoon one H. W. Willoughby, to whom one of said envelopes was directed, called on Mrs. Emerson for what was left for him, but she, having said notes and envelopes in her possession, declined to deliver them, on account of the said instructions she had received from the trustee to that efiect. At noon, on said 31st of December, the writ in this action, and also one other writ, were served on the trustee. By agreement, the trustee has been discharged in the said suit in favor of Nathan Willoughby. The other persons for whom the securities were so left did not, previous to the service on the trustee in this action, have any communication with said Edward, his wife, or the trustee, relative to said securities, but since said service nearly all of them have expressed a desire to accept the securities left for them.</p> <p>On the 27th or 28th of said December, said Edward assigned and indorsed to the trustee, and placed in his hands, two notes and mortgages, given to secure the same in trust to the use of said Edward’s wife, which assignments are as follows:</p> <p>“Be it remembered that I, Edward Emerson, in consideration of one dollar, to me paid by Benjamin E. Emerson, do hereby assign and transfer to him the said notes and mortgages, to hold the same for the use of my wife, for her sole and separate use, free from my control and interference; the intent hereof being to secure her for money I have used belonging to her; and in case the same can not be legally held for her use, then to be held for security of what I owe said Benjamin F., and for what he is held for me as surety; which notes and mortgages are now in the hands of the trustee.”</p> <p>Part of these liabilities of the trustee was on account of his suretyship for said Edward on two bonds, on which said Edward was principal; on one as administrator, and on the other as executor; which trusts said Edward has resigned, and which have been settled in the probate court; a decree having been made therein, charging said Edward for a balance, which consisted of money due from said Edward to the deceased in their life-time.</p> <p>The foregoing statement of facts was agreed to for the purposes of this case only, and it was also agreed that either party, so electing, might have this case discharged, and proceed to determine the liability of said trustee upon the whole disclosure of the trustee, or by the jury.</p>

<p>Before the law of July 9,1855, school districts had no power to borrow money to build school-houses, or to bind themselves by a promissory note therefor.</p> <p>Where a meeting of a school district was called and held before that law took effect, but was adjourned to a time subsequent to its coming in force, held, that a vote at such adjourned meeting, to borrow money upon the promissory note of the district, was not valid.</p>

<p>Where an agent assumes to bind another by a promissory note, when he has no authority to do so, and his language, stripped of what he had no right to place there, imports a promise by him personally, he is himself bound as the promissor.</p> <p>Nor is he relieved by showing that he merely, and in good faith, executed an authority which the principal, a school district, attempted to confer, but which it had no power to confer upon him.</p>

Assumpsit upon a promissory note, a copy of which is set forth in the case Weare v. School District No. 16, in said, town, reported in this volume. The parties agree that the facts in this case are the same as reported in the case against said school district.

<p>Where the defendant, by letter of August 12, 1859, proposed to the plaintiff, then living in Minnesota, that if he would come back to New-Boston he might move into the defendant’s house, and he would give the plaintiff and his wife a year’s board, and he might carry on the defendant’s farm on any terms he might elect; and the plaintiff did return to New-Boston in November following, when an arrangement was made about carrying on the farm ; but the defendant soon after refused to allow the plaintiff to carry on the farm, or to furnish the board; — Held, that it was <5om-petent for the jury to find an acceptance of the proposal in the defendant’s letter, and, if so found, to take into consideration, in assessing the damages, the expenses of removing to New-Boston.</p>

<p>Trespass, for taking, &c., the plaintiff's two oxen. The taking was proved. The defendant then proved that on the 7th day of June, 1860, he took the oxen damage feasant in his inclosure in Allenstown, and. impounded them in the common pound of that town, and after certain proceedings sold them at public auction. At this sale the defendant acted as auctioneer.</p> <p>Certified copies of the proceedings in relation to the impounding and the sale, were referred to as showing those proceedings, and as part of the case. The estimate of damages, &c., was seasonably left with the pound-keeper, and the notice to the plaintiff was seasonably given. The plaintiff appeared before the appraisers, when they appraised the damages, and it did not appear that he objected to the proceedings. The defendant then admitted that after the oxen had been impounded a day or two it was the practice of the "pound-keeper to drive the oxen in the morning from the pound to his barn, which was half a mile distant, and there keep them till night, feeding and watering them at the barn, and at night returning them to the pound ; that on the 14th of June the pound-keeper drove the oxen to the pasture of one Sawyer, in Pembroke, two and one half miles from the pound, where they remained ten days ; that then they were returned by the pound-keeper to the pound, and kept at the pound and barn, as before; that they were driven from the barn to the pound on the day of the sale. But it did not appear that the defendant had any knowledge whatever that the oxen had been out of the pound at any time after they were delivered by him to the pound-keeper, June 7, 1860, before the sale was made. There was evidence tending to show that the pound was exposed to the sun and heat, and that the flies were very troublesome there while the oxen were impounded.</p> <p>Thereupon the plaintiff asked the court to rule that the foregoing facts showed no defense to this action, and the court so ruled, to which the defendant excepted. The defendant then introduced a witness, Stokes, who testified that the plaintiff desired him (Stokes) to attend the auction, and bid off the oxen for him (the plaintiff); that he (Stokes) did not say he would or would not; that he (Stokes) attended and bid off the oxen for himself for $66, and on his return offered them to the plaintiff for $75, and the plaintiff' declined to take them. The defendant claimed that this evidence was competent to be submitted to the jury to show a waiver by the plaintiff of any irregularity in keeping the oxen after the impounding, but the court ruled that it was incompetent for this purpose, and the defendant excepted.</p> <p>A verdict wras thereupon taken for the plaintiff, by consent, judgment to be rendered thereon, or the same to be set aside and a new trial granted, as the opinion of the court should be upon the foregoing case.</p>

Replevin, for a lot of hay in the barn of the defendant Reed, raised in 1857, on a tract of land in Nashua, heretofore mortgaged by Hartshorn & Ames to.the Nashua Savings Bank, and afterward by one Minasian to the Indian Head Bank, he having before received a deed of it from Hartshorn & Ames. The hay was cut by the defendants under a claim of title in McQuesten, or the Indian Head Bank, but derived through said Hartshorn & Ames, and the plaintiff claimed title also from them.

The petition of James H. Steele and others for a new highway in Hudson. The petition having been referred to the county commissioners, a report was made thereon to the court at this term, laying out the highway prayed for, which report was signed by two of the county commissioners and one Hobbs, as a substitute for and acting in place of the third county commissioner, Weston.

<p>This was an action on the case against the defendants, who were common carriers, to recover damages for injui’ies alleged to have been received by the plaintiff while being transported by them, as such carriers, by reason of their negligence. The allegations of the plaintiff’s injuries in the declaration were as follows:</p> <p>“ That said locomotive engine and snow-plow, through the want of due and reasonable care and skill, and from the gross negligence of the defendants and their servants, ran into and upon said cars with great force and violence, by means of which, and from the steam and smoke from said engine, the plaintiff was grievously bruised and hurt, and his right side, right lung, and right hip and hip socket were greatly and dangerously and permanently hurt and injured, and his life, as well as the lives of all others in said cars, greatly endangered, and he was otherwise severely and dangerously and permanently hurt and injured, and for a long time was, and now is sick and disabled,” &c.</p> <p>The plaintiff introduced evidence of witnesses, not physicians, that, at various times after the accident, he complained to them of injuries in his hip and lungs, at such times ; to which the defendants objected, upon the ground that the declarations were not made to physicians; but the court overruled this objection.</p> <p>The plaintiff introduced evidence tending to show that while carried as a passenger by the defendants, in their cars, a collision occurred, in and by which he received a bruise on or near the junction of the os sacrum and the right os ilium, the appearance of which was described, producing injury to the sacral nerves, and through them to the right sciatic nerve, and rendering him lame, and unable to walk far without pain; and also evidence tending to show that the injury still produced, and would produce permanently these effects upon him. The plaintiff was permitted to ask of a medical wdtncss, who had made a personal examination of the plaintiff* and had testified in relation to it, the following question, subject to the defendants’ exception: “ Suppose the plaintiftj in a railroad collision, received an injury upon the hip, and by that concussion, either by something striking on the hip, or by being violently thrown against something on that place, and within three or four days after, experienced a good deal of pain, aud was lame in the hip, and there was then at the place of the injury a swelling of the size of a dollar, and a discoloration, with appearances in the spot of marks of bruising; that the place was sore, and pressure caused paiu, and that there was pain in the hip —; taking these suppositions in connection with the appearances you found on the plaintiff upon examination — to what would you attribute the lameness ? ” The plaintiff' had previously introduced evidence tending to show a state of facts similar to that supposed in the foregoing question, subject to the defendants’ exception.</p> <p>The plaintiff was permitted to show that since the accident, and since the commencement of this suit, he walked lame, and also the manner in which he got in and out of his wagon at various times, as bearing upon the question of his lameness at such times.</p> <p>The plaintiff called a witness who was in the cars at the time of the collision, and with a view to show that the defendants acceded to his claim that they were liable for injuries there received by him, was permitted, subject to the defendants’ exception, to put to him the following question:</p> <p>“ State whether, since the collision, you have made any claim on the defendants on the ground that they were liable to you by reason of their negligence, or that of their servants, for any injuries you may have sustained in the collision?” And, subject to a similar exception, the witness was permitted to state how the matter was adjusted with the defendants, omitting the sum paid him, with a view to show that the defendants admitted their liability or injuries received by the collision.</p> <p>Upon the cross-examination of a medical witness the plaintiff was permitted to ask, subject to the defendants’ exception-, whether the witness knew “if the subject of concussion of nerves had recently been discussed in a publication by eminent New-Tork surgeons ?” to which the witness replied that he did not.</p> <p>The defendants objected, that for an injury caused to the plaintiff' by the collision, from a bruise on or near the junction of the os sacrum and the right ilium, producing injury to the sacral nerves, and through them to the right sciatic nerves, and thereby rendering the plaintiff lame, the plaintiff could not recover under the allegations of injury, contained in his declaration; but the court ruled otherwise, to which the defendants excepted.</p> <p>The jury having returned a verdict for the plaintiff, the defendants moved to set the same aside, and for a new trial, because of the foregoing rulings of the court.</p>

This action was tried by the court. It was scire facias against the defendants as indorsers of an original writ in favor of George M. Flanders, formerly of Manchester, in this county, wherein the plaintiffs were then defendants. Such proceedings were had in said suit that final judgment was rendered in favor of the plaintiffs against Flanders, at the trial term of this court at the session in Manchester, on the 22d day of February, 1860, for costs, taxed at $374.

Assumpsit upon a promissory note, dated January 31, 1855, for $204.88, payable to the plaintiff, or order, in six months; and made by Thomas Tolma.ii as principal, and tbe defendant as surety, by putting his name on the back thereof.

This was a petition for a decree for tbe discharge of a mortgage. The parties agreed to the following statement of facts: On. the 20th day of November, 1856, one Richard Lamprey, then the owner of the premises in question, mortgaged the same to the petitionee, to indemnify him for signing a note as his surety, which note Gil-man afterward had to pay. After the mortgage was executed, the title of Lamprey went into the hands of one J. M. Moody, and from him to the petitioners.

Assumpsit by Samuel ~W. Sanders against tbe Hillsborough Mutual Fire Insurance Company, upon a policy of insurance in the company of the defendants, dated January 9, 1860, insuring the press, paper, type and apparatus for printing, belonging to Samuel W. Sanders and others, situated in Laconia, in said county, for one year from date.

<p>The injury occasioned to an individual by being deprived of the use of a highway, in consequence of its being totally blocked up with snow, is not special damage within the meaning of the statute; and no action therefor can be maintained against the town.</p>

Assumpsit. Writ elated July 14, 1860, containing two counts; one on an account annexed, and the other for goods, wares and merchandise, sold and delivered. The account annexed contains but one item: “ To balance on account, $99.38, as from bills sold at different times. September 3, 1858, made out.” The date of the delivery of the first item in the specification is January 27, 1857, and the last February 21, 1857.

<p>In equity, whore the plaintiff has testified to a material matter in issue, his admissions, tending directly to contradict his testimony as to such matter, are competent evidence for the defendant, though not set out in the answer.</p>

<p>This is an appeal from a decree of the court of probate, made January 15, 1862, declaring void tbe appointment of the appellant as executrix of the will of ber late husband, and revoking her letters testamentary.</p> <p>The original decree, made May 14, 1856, recites that Comfort Morgan, the executrix named in the will of "William Morgan, deceased, being the residuary legatee, having accepted the trust and given bond, as the law directs, to pay debts, legacies, &c.</p> <p>The decree appealed from denies that she was residuary legatee, and on that ground declares her appointment void, and revokes the. letters testamentary.</p> <p>Eichard Dodge, the appellee, alleges that he is a creditor of the estate of "William Morgan. The appellant denies that he is a creditor, inasmuch as his claim is barred, never having been presented to the executrix, and no suit having been commenced upon it within three years. The appellee answers that there has been no administration upon the estate.</p> <p>The clause in the will of "William Morgan, under which the appellant claims to be residuary legatee, is as follows:</p> <p>“ I devise all of my real estate, situated in said Seabrook, and in Salisbury, in the county of Essex, &e., to Comfort Morgan during widowhood,” remainder over, &c. “All the rest, residue and remainder of my personal estate whatsoever, after payment of my just debts, I give, &c., to said Comfort Morgan, whom I appoint executrix,” &c.</p> <p>It was admitted, for the purpose of this case, that the real estate, as above described in the will, was in fact all the real estate of the testator.</p>

<p>Amendments of the extent of executions may he allowed as against third persons, where the returns contain something to amend hy.</p> <p>It is not essential that the return upon an execution should recite the previous attachment upon mesne process.</p> <p>"Where an officer, having two executions against a debtor, gives notice at the same time of a sale of his right of redeeming certain lands on both executions, fixing the sale at the same time and place; — Held, such notice was valid in respect to a sale on the second execution, made subject to the previous sale on the other.</p> <p>"Where E agreed to sell his farm to "W, and a part of the price was paid hy giving up to E certain notes against E and another, and the completion of the sale was deferred until the grantor and his wife should execute a deed, and it should he. put on record; — Held, that the sending such deed to the registry to ho recorded was not a valid delivery against an intervening attachment, unless the register received it as the agent of the grantee, or some other act of acceptance hy the grantee was shown.</p>

This was a bill in equity, brought by the residuary legatees of William Badger, or their representatives, to recover a sum of money belonging to that estate, and loaned by the defendant Codes, one of the executors, to the firm of Goodwin & Coues. The hearing was had upon the bill, answer and proofs, together with the report of a master, appointed to state the facts. The bill, answer, and the master’s report sufficiently appear in the opinion of the court.

Bill in Equity to recover the legacy hereinafter set forth. The parties agree that the following are the facts in the case: The defendant, and the late Charles Brown, father of Hiram, the plaintiff’s intestate, were sons of Zephaniah Brown, who, by his will of April 13,1843, made the defendant executor and residuary legatee, and devised a farm to said Charles.

The complaint was that said Goulding, at Portsmouth, on, &c., “was and remained a long time upon the sidewalk on the northerly side of Market square, in said Portsmouth, to the annoyance and disturbance of all persons passing and repassing, contrary to the form of the ordinance in such case made and provided, contrary to the form of the statute,” &c. The respondent moved to quash the complaint for the following among other reasons: Because it is not set forth in said…

Writ of Entry. The demanded premises were situate in Salem, in the county of Rockingham. Both parties claim title under Hiram K. Bryant. The plaintiff claimed title by virtue of a mortgage from said H. K. Bryant to J. J. Bryant, dated March 8, 1847, and assigned by the latter to the plaintiff December 22, 1858. The plaintiff at the time of the assignment was and ever since has been a resident of Massachusetts.

This action is for money had and received. It was committed to an auditor, from whose report it appears that objection was made by the counsel for subsequent attaching creditors, who had been admitted to defend the action, that the suit, having been instituted in the life time of George Mathewson, and he having since the date of the writ deceased, without ordering or directing the suit, his administrator, who now prosecutes it, has no authority to carry it on; but no proof…

Assumpsit, for services rendered by Cynthia Hall, one of the plaintiffs, to her father, the defendant’s intestate, in his family, from November, 1852, to March 21,1857. The said Cynthia was of age March 4, 1857. On the 21st day of March, 1857, she married the said Isaac, and left her father’s house. The defendant filed a confession of her claim from the time she became twenty-one years of age to said 21st of March, and pleaded the general issue as to the residue.

<p>In Equity. The case stated by the bill is briefly as follows:</p> <p>Samuel Currier had a claim against the Boston and Maine Railroad, of over $5,000, for grading part of their road, which was disputed. He applied to the plaintiffs, Messrs. Christie and King-man, attorneys aud counsellors at law, and partners, to pi’osecute a suit for him for its recovery. He said, and the plaintiffs knew, he was insolvent, and could pay them nothing unless he recovered; and he agreed that they should be first paid, out of whatever money should be recovered or obtained. Relying on this assurance the plaintiffs commenced a suit, rendered their services, and made advances in carrying it on, till their claim amounted to about $1,800. Shortly after the suit was commenced, Samuel Currier assigned this claim to his nephew, John Currier, the defendant’s intestate. The plaintiffs allege that J. Currier then knew the insolvent condition of S. Currier, and his inability to pay the plaintiffs for their advances and services, except from the money that might be recovered. They believe that he knew they relied upon being thus paid, and that they were to be first paid out of any money recovered. They allege that this assignment was made without their knowledge or consent, in violation of S. Currier’s agreement with them, and collusively and fraudulently on the part of said S. and J. Currier, and that they wrongfully, collusively and fraudulently kept secret and concealed from the plaintiffs the fact of the execution of said assignment. Said S. Currier, with the knowledge and consent, and as the plaintiffs believe, by the procurement of said J. Currier, continued to take the care, management and charge of said action, as the plaintiff and sole party interested; and neither the said S. nor J. Currier, during the life of said John, in any way ever informed or intimated to the plaintiffs that said J. had any right or interest in the claim, or suit; nor did said Samuel nor said Sawyer inform or communicate to the plaintiffs the existence of said assignment, or that said J. had any interest therein, till the fall of 1860, when it was mentioned to said Christie by said Sawyer, as administrator of said John.</p> <p>Said John Currier lived near the plaintiffs, and often spoke of the suit as Samuel’s. He was a man of large property, and able to pay counsel, and the plaintiffs would not have prosecuted the suit if they had been informed of the assignment, or of J.’s interest, unless he had become responsible for their fees and charges. This, they doubt not, was understood by S. and J., and they collusively and fraudulently concealed the assignment, and said J.’s interest, that he might have the advantage of the suit, and avoid liability to the plaintiffs for their services and advances.</p> <p>Said Christie, during these proceedings, was one of the directors of the Boston and Maine Railroad, and made strenuous but unsuccessful efforts to compromise the claim with the agents of the railroad.</p> <p>The defendant was fully informed of the plaintiffs’ claims, but compromised the suit, in the absence and without the consent of the plaintiffs, for $2,000, and received the money and discharged the action.</p> <p>The plaintiffs have requested a settlement and payment of their claim of the defendant, without success.</p> <p>The bill prays an answer under oath, payment of the plaintiffs’ claim, and general relief.</p> <p>The defendant demurred to the bill, because the plaintiffs have not, by their bill, made such a case as entitles them, in a court of equity, to any relief; because their claim is infected with champerty and maintenance; because the services of Christie, in promoting the compromise of said claim, as counsel for the claimant, and as director .of the railroad, can not be made the foundation of a claim in equity; and because said S. Currier, being dead, his executor or administrator is not made a party to the bill.</p>

Assumpsit, upon a bill of exchange and an account annexed. There were several pleas, replications and rejoinders filed in the case, and issues to the jury had been made and joined upon all the pleadings except the second plea of the defendant, which was, “that the causes of action in the plaintiff’s declaration supposed, or any or either of them, did not accrue to them at any time within six years next before the commencement of this suit.” To this second plea the plaintiffs…

<p>The parental rights and duties can not be permanently assigned or transferred by a parol agreement, and therefore such agreement may be revoked by the parent on refunding the sums of money expended under it.</p> <p>In such a case, on habeas corpus, the custody of a child will ordinarily bo awarded to the father, unless the relation between the child and the respondent under the agreement has been of such duration and character that the happiness of the child would be endangered by severing it; or unless, from the unsuitableness of the father for the trust, or other cause, the permanent interests of the child are likely to be sacrificed.</p>

Case. The declaration has five counts. The first alleges that the defendants, as carriers of passengers and their luggage, on the 30th day of April, 1859, received Julia A. Smith as a passenger, with a certain bundle containing the cloth, trimmings and materials for sis coats, to be carried from Newmarket to Dover for a reasonable hire and reward, and that the bundle and contents were not so delivered, but lost.

<p>The sale of the good will of a business will take from the seller the right to continue, or in any way hold himself out as continuing the identical business, the good will of which he has sold; but it will not necessarily prevent him from engaging in a similar business, which is not in fact and does not purport to be a continuation of that of which he has sold the good will.</p> <p>“Where the defendant had sold a newspaper published by him in D., and its subscription list, and also a printing establishment, carried on there by him in connection with the newspaper, “ with the good will belonging and appertaining to the same” ;—</p> <p>Seld, that this sale did not deprive him of the right to establish in D. a new and different, newspaper, and in connection therewith a new printing office, where such new printing office and newspaper were not in fact, and did not purport to he a continuation of the printing establishment or newspaper sold, and where the business of the new office and journal was not in fact, and did not purport to be, a continuation of the business, the good will of which the defendant had sold.</p> <p>The plaintiffs having bought from the defendant an established buisness, with the goodwill belonging to it, and received a bill of sale thereof, brought a bill in equity against the vendor to restrain him from carrying on asimilar business; — Held, that parol evidence was inadmissible to vary the written contract of sale, by showing that at the time of the sale, or during the negotiations therefor, the vendor made a verbal agreement that he would not set up a competing business.</p> <p>'Where, by written articles between the plaintiffs and the defendant, the former agreed to purchase and the latter to sell a certain newspaper and printing establishment, with the good-will belonging thereto, for a sum to he fixed by the appraisal of A, B and O; and A, B and 0, by virtue of this agreement, and without any further authority, made the appraisal upon the supposition that the defendant was to be excluded from any competing business; and thereupon the sum fixed by them was paid by the plaintiffs to the defendant, who gave to the plaintiffs a bill of sale of the newspaper and printing establishment, with the good-will belonging thereto; and it did not appear that the defendant knew that the appraisal was made upon such a supposition; — Held, that the defendant was not estopped to assert a right on his part to set up a competing business.</p> <p>A usage, to he admissible to explain the intent of parties in a contract, must he so well settled, so uniformly acted upon, and of such long continuance, as to raise a fair presumption that it was known to both contracting parties, and that they contracted in reference to and conformity with it.</p>

<p>As between tbe drawer and a mere accommodation acceptor of a bill for tbe benefit of the drawer, such acceptor stands as surety.</p> <p>In an action upon a promissory note, given by a principal to his surety to indemnify the latter for his liability, the measure of damages is the amount paid by the surety on account of such liability, before the trial, with interest from the time of payment.</p> <p>An auditor has no power to allow an amendment of the pleadings in an action at law committed to him.</p> <p>In an action of assumpsit the plaintiff can not recover upon a promissory note_ given to him by the defendant, which had not become due at the date of the plaintiff’s writ.</p> <p>Where a specification has been filed under a count for money had and received, the plaintiff is not entitled to recover upon a note substantially varying from his specification.</p> <p>Under a count for money had and received, the plaintiff can not recover upon a noto made by the defendant, payable to a third person, and not indorsed by the latter, where it does not appear that any money or any thing treated as money had passed between the plaintiff' and the defendant.</p> <p>Under the general issue the defendant can not show a judgment recovered in another State by the plaintiftj upon the same cause of action, since the commencement of the plaintiff’s suit here.</p> <p>Under a count for money had and received, a surety can not recover of his principal for money paid by the surety on account of his liability for such principal.</p> <p>An attorney, merely as such, has no authority to indorse for his client a note left with him for collection.</p>

In JDebt. The writ contains two counts upon a bond, given by the defendants to the plaintiff) dated April 19, 1861, for $250.

In Equity. The facts appearing upon the bill and answers were briefly as follows: Joseph W. Hale, of Conway, died February 21, 1857, having made his will, afterward duly proved in the court of probate, whereby he “ devised to his wife, Susan E. Hale, his homestead farm, in C., bounded, &c., and fifty acres of wood land, bounded, &c., containing one hundred and twenty acres, more or less, and his household furniture, so long as she should remain his widow, and at the death of…

<p>A contract of apprenticeship, entered into by a minor under the age of fourteen years, but not by an indenture in two parts, sealed by both the parties, and without any deposit of the instrument containing the contract in trust for the minor, according to the provisions of chapter 151 of the Revised Statutes, is voidable by the minor.</p> <p>Any act by the minor, clearly showing his intention not to be bound by such contract, is a sufficient avoidance of it.</p>

This was an appeal from the decision of the commissioner, to examine and allow the claims of the creditors against the estate of Cummings Moore, disallowing in part the claim of the appellant against said estate, consisting of a note made by the deceased, and an account for labor and services. The defendant is administrator upon the estate of said Cummings Moore, deceased. On tbe trial tbe appellant was offered as a witness in support of his claim.

Assumpsit, by Nims, Buss & Woodward, to recover balance of account for $106.02. There was also in the plaintiffs’ declaration the counts for money had, &c., $200; money paid, &c., for like amount; also for goods, wares, and merchandise, for $200.

This is a bill in equity, in which, after proofs had been taken, issues were awarded. The material facts are sufficiently stated in the opinion of the court.

, This was an information against the defendants, as selectmen of Plainfield, for omitting the name of one Buchanan on the checklist, November 3, 1860. The first count stated the facts entitling Buchanan to vote, and that the defendants, knowing the same, and fraudulently, &c., neglected to insert his name.

A motion was made to quash the indictment on account of a defect in the description of the property alleged to be burned.

Petition for a new highway in Danbury, commencing “ at or near a stake and stones standing about four rods northeasterly of the bridge, in the road leading from the house of Archibald Ford to the house of George N. Ford; thence running in a westerly direction to or near a stake and stones, in the road leading from the house of George W. Dean to Grafton depotalleging that the selectmen of Danbury had been petitioned to lay out said new highway, as above described, and had…

This was an indictment, which alleged substantially that the respondent at, &c., on, &c., did willfully, maliciously and cruelly-beat and wound one horse, of the value of §100, then and there being in his possession and keeping, &c. The defendant moved to quash the indictment, but the court overruled the motion, and the respondent excepted.

Assumpsit. The action was committed to an auditor, whose report was made part of the case. The auditor allowed to the plaintiff various items in his specification, amounting to ¡$208.94, with interest from the date of the plaintiff’s writ.

These two actions in favor of Nathaniel Carter were tried together. The last was a real action against Rhoda Beals for the recovery of a tract of land in Haverhill; the former was for trespass, said to be committed on the same premises, and which the defendants, who were Bradford and Charles Beals, justified, as tenants and servants of Rhoda Beals, under a brief statement filed with the general issue.

This was an action of assumpsit upon the general counts, and upon an account annexed. Held: at which the defendant was present a part of the time. The auditors proposed that B. Hughes, who was one of the selectmen, and Mr. York, the collector of taxes for those years, should ascertain the amount of the outstanding taxes.

The declaration in case set forth, that on the 27th of March, 1860, and long before, the defendant was postmaster of the post-office at Lancaster, duly and lawfully appointed, and qualified, and acting in that capacity; that on the 2d day of December, 1859, one Lowell Wentworth, at Jackson, &c., properly inclosed thirty-four dollars, in current bank bills of that value, in cash, the property of the plaintiff, in a letter, duly sealed and directed to the plaintiff, at said…

<p>Actions for injuries to the person, which die with the person, are not assignable before judgment.</p> <p>But an action for unliquidated damages, founded either on the entire destruction, or conversion, or partial injury to personal property, which survives, is capable of assignment, and the assignment, when executed in good faith, for adequate consideration, and upon duo notice to the defendants, and all parties in interest, will bind the parties thereto, and such as have knowledge thereof.</p> <p>Such assignment may be by parol agreement; and when fairly executed between attorney and client will not be void, as being champertous, or against public policy.</p> <p>It is for the jury to determine upon the sufficiency of the assignment and notice; and if the same are good and valid, the law will protect the assignee from any subsequent wrongful settlement by the original parties.</p>

<p>This writ was dated October 16, 1862, and was served on the trustee October 18, and on the principal defendant October 28, 1862. The court commenced November 4, 1862, to which said writ was returnable. At this term the trustee was defaulted, but the defendant “ comes and moves said court that the writ be quashed, and said action be dismissed from the docket, for the reason that the writ in said action was made returnable on the first Tuesday of November, 1862, and the same was served on him, the said Thomas J. Crawford, on the 28th day of October, 1862, by reading the same to him by Ira S. M. Gove, deputy sheriff, and the said writ was not served upon him in any other way or manner.”</p> <p>The plaintiff claimed that this defect should have been taken advantage of by plea in abatement, and that the court would not, under these circumstances, grant this motion; and at least that it was discretionary with the court to disallow the motion. But the defendant claimed that he was entitled to have the motion granted; that it was optional with him either to plead in abatement or make Ms motion to quash and dismiss; and the court, in order to raise the question, denied the motion, and the defendant excepted.</p>

This is a real action, to recover a tract of land in Whitefield, in this county. The defendant pleaded the general issue, with a brief statement of a claim for betterments. The writ is dated April 7, 1860, and was served April 9, 1860. It was admitted that the land in question was the property of Morris Clark, and both parties derive their titles from him; the plaintiffs under a levy of execution, the defendant under deeds from him.

In Equity. The bill alleges that on the 6th day of May, 1856, the defendants, James George, and Nancy George his wife; were negotiating with one Mace for the purchase of a certain farm in Hooksett, bounded, &c.; that Mace agreed to sell said farm for $1,200, and it was agreed that the plaintiff should furnish $1,000 of the purchase money; that Mace should convey the farm to said Nancy; that she should give the plaintiff a note for said sum of $1,000, and a mortgage of said…

Assumpsit. Pleas, the general- issue, and statute of limitations. It is agreed that this action was commenced by the plaintiff' to secure the payment of the amount due on two notes annexed to the case. The plaintiff has had no other suit against the said defendant for the last ten years. The consideration of said notes was money loaned by the plaintiff’ to the defendant, and has not been paid except as appears by indorsement on said notes.

This bill in equity was heard upon the bill, answer and proofs, and the pleadings and facts sufficiently appear in the opinion of the court.

Assumpsit for a boiler, steam-pipe and other machinery, sold and delivered. The plaintiff, Thomas Atherton, owned and carried on a machine-shop in Lowell, Mass. The machinery was delivered to the defendant, Alexander H. Tilton, at Sanbornton, N. H., where the defendant lived, and was put up in the defendant’s mill by one Shaw.

Assumpsit, upon an 'account annexed to the writ, as follows : To one half the fees paid fence-viewers in making division of fence, . §2.00 To making fence assigned to you to build, appraised by fence-viewers, 12.50 To one half the fees paid fence-viewers for appraising fence assigned to you after it was built, 1.25 §15.75 Plea, the general issue, with two dollars paid into court by the defendant, under the rule of court, upon the first item of the account.

“Writ of Entry for one undivided half of a tract of land, twelve rods long and two rods wide, in Manchester, on the east side of Merrimack river. The plaintiff', Josiah G. Graves, claimed title under the three following deeds, which he introduced in evidence.

This is a petition for a mandamus to the defendant, Isaac TI. Marshall, to deliver to the plaintiff, John G. Kimball, who claims to be city clerk of the city of Nashua, the records, files, safes, &c., belonging to that office. The facts appear to be that the defendant was duly elected city clerk of Nashua for the year 1862, and he claims still to hold the office by reason of a failure to elect a new clerk at the close of his year.

In a writ of entry upon the general issue, it appeared that Mary McClure, being seized of the demanded premises, by her last will, which was duly proved December 13, 1859, devised the same as follows : “I give and bequeath to my beloved husband, Asa McClure, the use and occupancy of my real estate, situated in the northeasterly part of Amherst, during his natural life, and at his decease said estate to be sold at public auction, and the avails thereof to be equally divided…

This was an action of assumpsit upon a warranty of a horse. The damages demanded in the writ were one hundred dollars. The plea was the general issue. There were three questions for.the jury ; viz., Did the defendant warrant the horse in question to be sound ? Was the horse at the time of the warranty sound ? And if not, what damages did the plaintiff sustain by reason thereof? The jury returned a verdict for the plaintiff for fifty cents damages.

<p>One who abuses an authority in law, by committing acts which are in themselves trespasses, and which can not be justified under the authority, is a trespasser ab initio. But one who has an express authority, or an authority in fact, and who exceeds or abuses that authority, is only liable for the excess.</p> <p>A person, having the right by deed to enter certain promises for a particular purpose, and having entered said premises for that purpose, who shall, after entry, exceed his authority, and commit acts for which he was not authorized to enter, will hot be liable in an action of trespass guare clausum fregit.</p>

<p>Where a mortgagor’s assignee offered to pay the mortgage debt, at the same time producing the money in a pocket-book, a part of which was in bank notes, and the holder of the mortgage refused to receive it, without making any objection to the amount or kind of money; — Held, that further proceedings were dispensed with, and that the tender was valid.</p> <p>A mortgagee in possession, taking the rents and profits, can acquire no title against the mortgagor or his assignee, by a purchase of the land at a collector’s sale for the taxes upon it; but he may add the sum paid for such taxes to the mortgage debt, as expenses necessarily incurred in protecting the estate.</p> <p>Whore a mortgagor sells a portion of the land in different parcels, and at different times, that which he retains will in equity bo held primarily liable for the wholo debt; and if not sufficient, the several parcels sold will be liable in the inverse order of such sales, beginning with the parcel last sold; provided, however, that the previous 'conveyances, not registered, are subject to be postponed to subsequent registered conveyances.</p> <p>The release by the mortgagee of a portion of the land mortgaged, with the knowledge of a prior sale of another portion, will operate as to such prior purchaser as a discharge, pro tanto, of the mortgage debt.</p>

Covenant broken. Writ dated April 20, 1861. October 21, 1856, the defendant conveyed a tract of land to the plaintiff, with full covenants of warranty, and at that time the land was subject to a mortgage, with other property, from one Andrews to one Thayer, to secure $2,000. August 27,1857, Thayer quitclaimed the land to Andrews. August 4, 1856, Andrews conveyed his interest to the defendant by warranty deed.

This was a petition for a new trial, as follows : Kespeetfully represents George W. Thayer, .of Manchester, in the county of Hillsborough, that on the 20th day of December, 1858, he, and one Frank A. Brown, then living, now deceased, purchased a stock of goods of Joseph Ferren, of Manchester, and paid for them $3,288.34; that they took possession of said stock and continued to buy and sell aa partners, under the name of Brown & Thayer, until the 14th day of January, 1859,…

<p>This is an action on the .case against ¥m. B. Walker, Edward Now and Gilbert P. Hill, for diverting water from the plaintiff’s mill — the said Now and Hill claiming under the other defendant, Walker.</p> <p>The facts are sufficiently sot forth in the opinion of the court. The case was opened for trial by the jury, and was reserved upon the facts disclosed, to obtain a construction of the deeds.</p>

<p>Case, for special damage happening to the plaintiff by reason of. the insufficienéy of a highway.</p> <p>By direction of the court, on the motion of the defendant, the jury went from Manchester to Nashua to view the place where the plaintiff' claimed he was injured, and such other objects as either party should desire the jury to see. On the return of the jury from the view, the counsel for the plaintiff' stated to the court that they understood that after the jury had viewed the premises in presence of the counsel of both parties, and had left the place where the plaintiff was injured, and after the plaintiff’s counsel supposed that the view was completed, all or some of the jury returned to the place where the plaintiff was injured, unaccompanied by the ¡ffaintiff, or any one representing him, and that, in the absence of the plaintiff and his counsel, and without their knowledge or consent, another view was had by the jury, and various things were said and done in presence of the jury by the defendant’s .counsel, and by others interested in behalf of the city.</p> <p>The plaintiff’s counsel also stated to the court that in an ordinary case they should not consent to go on with the trial under such circumstances, but that in this case they pi’oposed to waive all objection, if the court would state to the jury that it was their duty to lay out of the case, and allow to have no influence upon their minds, all that had been said, and done, and seen, when Mr. Barrett (one of the plaintiff’s counsel) was not present.</p> <p>The coart thereupon made the statement to the jury suggested by the plaintiff’s counsel, and the trial went on, with the understanding on the part of the defendant’s counsel and the court that the plaintiff waived all objection to what had transpired in presence of the jury, or any of them, in the absence of the plaintiff’s counsel.</p> <p>The jury returned a verdict for the defendant, and the plaintiff moved to set it aside, “because, after the jury had viewed the place where the accident occurred, under the instruction of the coui’t, they returned to the locality, and there met some officers and citizens of Nashua, and measurements were made and conversation had and held between said officers and citizens, in the presence and hearing of the jury, and as we believe both there and at other places with the jury, or some of them; that the plaintiff nor his counsel had no notice of such second view, and were not present ; that one of the defendant’s counsel, A. W. Sawyer, was present at said second view, and pointed out limbs,” &c. The court declined to set the verdict aside, and the plaintiff:' excepted.</p> <p>The plaintiff claimed and testified that he was injured July 16, 1860, at night, and when it was very dark, by stepping off a bridge over a ditch, and down a distance of twelve or fifteen inches, whereby, in falling, his head struck a tree, and he claimed and introduced evidence tending to show that the effects of this blow upon the head had been great pain in the head, discharges from the nostrils, dizziness, confusion of mind, distortion of the face, partial paralysis of the limbs, loss of appetite, indigestion, emaciation, general loss of nervous vigor, and a gradual, constant and increasing loss of health, and that the injury was likely to prove fatal. The plaintiff was a painter, and had been engaged in that business for many years before that time. In 1855 he was burned about the face, hands and arms, by some of his painting materials taking fire.</p> <p>There was conflicting evidence as to the condition of the plaintiff’s health before July 16; 1860. Dr. Graves, one of the plaintiff’s witnesses, testified that he was the family physician of the plaintiff, and that, before the injury complained of in this case, the plaintiff appeared well and healthy, and th*at he always considered him a hearty, vigorous and healthy man. On cross-examination he testified that he did not recollect of saying to Mr. White, or to any one, that the plaintiff would die, or suffer injury to his health, unless he quit painting, or any thing to that effect, or on that subject, but that he would not swear that he had not said so. Subject to the plaintiff’s exception the defendant was allowed to prove by Mr. White that about the time the plaintiff was burned, Dr. Graves said to the witness that the plaintiff' was full of paint, or full of the effects of paint, and that it was his (Dr. Graves’) impression that the plaintiff would have to leave his business‘of painting, if he lived long.</p>

Assumpsit upon a promissory note for $850, dated November 24, 1852, signed by the defendant, and payable to the plaintiff, or order, on demand, at the New-Ipswich bank, with interest. Writ dated November 18, 1858. Upon the note was indorsed $500, September 5, 1853. Demand at the bank and nonpayment were proved.

. This action of John P. Webster against James A. Stearns and Horatio Fradd, was assumpsit, for money had and received, and for money paid. The existence of the partnership between the defendants was admitted. The plaintiff introduced his own deposition. The interrogatories and apswers numbers 3, 4, 13, 14, 15 and 16 were read, subject to the objection of the defendants that the admissions and declarations of Stearns were inadmissible to show a contract made by the firm.

<p>Where the liability of the indorser of a note or bill is fixed by operation of law, and he seeks indemnity of his principal, his safe course is to take up the note or bill, and proceed directly against him, in his own name.</p> <p>The indorsee or holder of a note or bill has his election, to proceed against the principal, or any indorser; all being regarded as principals so far as the holder of the paper is concerned.</p> <p>Where the indorser of a note has pointed out certain property, alleged to belong to the principal on the note, and the holder of the note has attached it, in the absence of other agreement, the indorser can not set up this proceeding as matter of defense, because the question of the legal application or misapplication of the funds arising out of such attachment can not arise properly under any issue pending, but can only form the foundation of a new suit or inquiry between the interested parties.</p>

<p>Trover, for four iron retorts, iron pipe, and other machinery used in the manufacture of pyroligneous acid, coal and tar. The plaintiff having a writ for service in favor of one Brown against one Carter, made a return thereon as follows :</p> <p>“Hillsborough ss., August 22, 1859. I this day attached all the right, title and interest that the within named defendant has in or unto any lands, tenements and buildings, or real estate whatsoever, lying or being situated in the town of Hillsborough, in said county, and all the machinery or apparatus, movable or otherwise, in or about his buildings, used for the purpose of manufacturing coal, acid and tar, and all the wood and lumber in or about said works, by leaving at the" dwelling-house of William B. Whittemore, town-clerk of said town, a true and attested copy of the within writ, with a like copy of this my return indorsed by me thereon, at 6 o’clock and 10 minutes in the afternoon of said day.</p> <p>Charles Scott, Deputy Sheriff.”</p> <p>The plaintiff did nothing to make an attachment, except to leave the copy with the town-clerk.</p> <p>Brown recovered judgment against Carter. His execution was put into the plaintiff’s hands within thirty days after judgment, and the plaintiff introduced evidence tending to show that the machinery referred to in his return on the writ, Brown v. Carter, had, after the date of his return, gone into the possession of the defendants ; that the plaintiff, within said thirty days, having the execution in Ms hands, demanded the machinery of the defendants, who refused to give it up; that at the date of said return the retorts, weighing-several tons each, were set in brick work, in the town of Hills-borough, with fires under them, and iron pipe connecting them with the other machineiy, and after said date had been removed from Hillsborough to Manchester, and into the possession of the defendants.</p> <p>The court ordered a nonsuit, and, the plaintiff excepting, the questions were reserved.</p>

Assumpsit, on a promissory note, signed by the defendant, Charles C. Russell, for $200, payable to the plaintiff, Stephen C. Marshall, or order, on demand, with interest annually, and dated September 2,1860. Plea, the general issue. The declaration was in the usual form counting on the note. The defense was, that the action could not be maintained, as the note was dated on Sunday.

The plaintiff, John S. Carr, offered the deposition of the defendant, George Griffin. The defendant objected to its admission on the ground that the notice was not served three days before the caption; and on this ground tbe deposition was excluded. The plaintiff then offered to prove the defendant’s signature to the deposition, and to read the deposition as an admission of the defendant.

<p>Ale is not spirituous liquor within the meaning of chapter 846 of the laws of this State.</p> <p>A liquor sold as ale may he so mixed with spirituous liquor as to fall within the prohibition of that statue, forbidding the sale of “ any wine or spirituous liquor, mixed or unmixed,” &e.</p>

In Equity. The bill alleges that the plaintiff was, and for a long time had been, possessed of a certain mill-privilege on Perley canal (so called), in Laconia, on the Winnipiseogee river; that he holds said privilege by virtue of a certain indenture, dated September 5, 1848, made between the Winnipiseogee Lake Cotton and Woolen Manufacturing Company and the plaintiff, wherein said company demised and leased unto the plaintiff the right to draw water from the lower end of…

Case,for malicious prosecution. The defendant, Edmund Keasor, had caused the plaintiff, Daniel Eastman, to be indicted for selling, without the defendant’s consent, a wagon, mortgaged by the plaintiff to the defendant, on which indictment the plaintiff was tried and acquitted. The plaintiff had mortgaged to the defendant a wagon and harness, and the plaintiff had subsequently sold a wagon.

Assumpsit upon a written contract between the parties, with general counts for labor and services, and money had and received.

<p>Writ oe Entry. Writ dated February 21, 1863. The declara-, tion was upon the seizin of the plaintiffs in their demesne as of fee and right. Plea, the general issue.</p> <p>Subject to the defendant’s exception, the plaintiffs introduced in evidence:</p> <p>A mortgage of the demanded premises from the defendant to the Winnipiseogee Bank, dated January 15, 1838, with an assignment thereon from Asa Pingree to Dudley Smith, dated April 11, 1853.</p> <p>An affidavit of Simeon Drake that a notice was published three weeks successively in the Belknap Gazette, a newspaper printed at Meredith Bridge, in said county, the first publication being April 17, 1852, and the notice being that said Pingree, March 21, 1852, peaceably entered upon and took possession of the demanded premises, conveyed to said bank in mortgage by the defendant by his deed dated January 15, 1838, and thereafter ward being duly assigned by the bank to Pingree, for condition broken, and for the purpose of foreclosing the right in equity of the defendant to redeem the same ; with a certificate of registry on said affidavit.</p> <p>The affidavit of the defendant filed at this term, for the purpose of procuring a continuance of this action, a copy of which affidavit was annexed.</p> <p>A bill in equity, in which this defendant was plaintiff, and these plaintiffs were defendants, filed November 24, 1857, brought to redeem the demanded premises; the answer of the defendants, and the evidence used in that case.</p> <p>A lease of the premises from Pingree to the defendant, dated March 21, 1852.</p> <p>A deed of the premises from»Dudley Smithto the plaintiffs, dated February 7, 1857.</p> <p>A note, to secure which said mortgage was given,— a copy of the note and of the writing upon it, the face of and all writing on the back of it, except indorsements of payment, being annexed.</p> <p>The docket of the law term, Belknap County, December, 1862, upon which the entry in said suit in equity was “ dismissed.”</p> <p>All the papers put iu evidence in this case were made a part of the case.</p> <p>It was agreed that at the date of said lease, and before and ever since, the defendant had lived upon and the premises.</p> <p>The court overruled a motion for a nonsuit, and the defendant excepted.</p> <p>The defendant offered to prove every thing stated in his said affidavit; the court rejected the evidence, and ordered a verdict for the plaintiffs, and the defendant excepted; and the questions of law arising on the case were reserved.</p>

<p>Trespass, quare clausum. Plea, the general issue, with a brief statement of license.</p> <p>The parties occupied adjoining lots, and the line between them was in dispute. The evidence under the general issue, and also as to license, was conflicting. The trespass complained of was building a small piece of wall on the plaintiff’s land. One ground of defense was, that the defendant owned up to a certain line agreed upon by the parties, and fixed by the deed under which the plaintiff claimed, and that the defendant built the wall upon a portion of that line.</p> <p>The jury returned a verdict for the plaintiff for $1.72. The court ordered that no costs be allowed, either party, and the plaintiff excepted, and also moved that the foregoing order be reserved for the consideration of the whole court, which was denied; and the plaintiff excepted, and filed this bill of exceptions, which was allowed and signed by the court.</p>

This is a petition for a rehearing. The petition of Joseph F. Dennett sets forth that on the 18th of March, 1862, William H. Dennett filed his bill in equity against said Joseph, upon which evidence was taken and a hearing had, and an opinion delivered in favor of said William; but no decree was entered, and the case is still pending.

In Equity. The bill alleges that the plaintiff owns a certain farm in Newington, describing it, and that the defendant has a certain right of way over a portion of said farm, describing the way ; that for about thirty years there has been a gate across this way, about half way from Bean’s house to Coleman’s land, and another upon the line dividing the plaintiff’s land from that of the defendant,- that the defendant holds this right of way subject to the right of the…

<p>The questions arise upon the disclosure of Charles W. Webster, the alleged trustee of the principal defendants, Edward W. and Charles E. Davis. It appears that the principal defendants had made an assignment of all their property, estate, rights, credits, &e., to the trustee, for the payment of all their debts, &c.</p> <p>This assignment was dated June 10, 1861. In it Edward W. Davis was described as of Cambridge, Ms., and Charles E. Davis as of Derry, N. H.; they being partners in the boot and shoe business at said Derry; Charles W. Webster, the assignee, as of Boston, Ms. The assignment was properly sworn to under the statute, but has never been acknowledged or recorded, and there is only one witness to any of the names. Two witnesses appear on the paper, but only one witness was present when either party signed it. A large portion of the creditors reside in Massachusetts. Under this assignment Webster had taken possession of the personal property of said firm at Derry. It does not appear that Charles E. Davis owned any real estate, or that either member of the firm owned any in New-Hampshire. Edward W. Davis had an interest in certain real estate in Cambridgeport, Ms., in common with one W. Davis, and the said Webster in his disclosure says that the said Edward W. Davis’ interest in the same is, from the best information he can obtain, valueless, and that the property is mortgaged for more than it will sell for. But according to a schedule of said property with the incumbrances upon it, which has been furnished to said trustee by said E. W. Davis, in which he gives the valuation of the property, it appears that the interest of said E. W. Davis in the same is $1,900 over and above all incumbrances. The trustee says in his disclosure : “ Up to May 5, 1861, I lived with my family at Dorchester, Ms., where I own a dwelling-house. On that day I moved with my family to Boscawen, N. H., and on the same day rented my house at Dorchester, which has since been occupied by a tenant.”</p> <p>He says that at the date of the assignment he was, ever since has been, and is now, a citizen and resident of Boscawen, N. II., but keeps a commission store in Boston, where he has long done and still continues to do business.</p> <p>The only question is whether the assignment is valid or void by the laws of New-IIampshire.</p> <p>The disclosure of the trustee and the other papers connected therewith were referred to as parts of this case.</p>

<p>"Where a creditor has exhausted his remedy at law, he may maintain a bill in equity against the debtor for discovery of assets and for relief, although he may not have acquired a legal lien upon such assets; and he may do so without a previous demand upon such debtor.</p> <p>Such a proceeding may be sustained independent of any statute provisions.</p> <p>Under the prayer for general relief, the plaintiff may have such relief as he is entitled to without regard to any defect in the prayer for special relief.</p> <p>A demurrer to the whole of the discovery sought will be overruled, if the plaintiff be entitled to any part.</p>

In Assumpsit, the plaintiff, Charles C. Smith, claimed to recover $700, being the balance unpaid for three tracts of land in Clarksville, alleged to be sold by the plaintiff to the defendants, Joseph Mace, jr., and Daniel S. Mace, and conveyed on the 10th of January, 1856, to Joseph Mace, jr., at the price of $2,00.0. The defendant pleaded the general issue. In the fall of 1855 Joseph Mace, jr., proposed to purchase of the plaintiff his farm and mills in Clarksville.

In Assumpsit. The count was for money had and received by the defendant to the plaintiff’s use. In his specification the plaintiff claimed various sums received by the defendant at several times, from October 2, 1858, to July 16, 1860, amounting to $1,784. The defendant pleaded the general issue.

<p>This is an action of covenant. The declaration avers that in an indenture under seal,, dated the 10th day of March, 1849, the plaintiff covenanted that he would immediately furnish for the defendant a fit-out to the amount of §300, to go to California as a member of the N. II. Mutual Mining and Trading Company; in consideration whereof the defendant covenanted that the plaintiff should receive half of all the earnings, gettings, &c., which might be made by the defendant for the space of two years (living excepted) from the time of the sailing of the defendant from Portsmouth with the company; and that the defendant further covenanted that he would attach himself to and remain with the company, and devote his time and sexwices to obtaining money or property, for two years, subject to the rules, regulations and constitution of the company; and that he would leave in the hands of the company half his share or earnings aforesaid, for the use of the plaintiff; that the plaintiff did, on the 12th of March, 1849, pay the §300 to the order of the defendant, but that the defendant, though he did attach himself to the said company, and become a member thereof, did not remain with the company, nor earnestly and faithfully devote his time and services to obtaining money or property, for said space of two years, subject to the rules, &c., of said company, &c., &c.</p> <p>The third plea of the defendant alleges that said defendant did attach himself to said company, at said Portsmouth, on the tenth day of March, 1849, and did remain with said company until the first day of July, then next ensuing; that on said first day of July, 1849, the company dissolved, at San Francisco, by a formal vote of a majority of the members thereof, but without any fault on the part of said defendant, and against his consent; that during the existence of the company said defendant did devote his time and services earnestly and faithfully to the obtaining of money and property for the use and benefit of said plaintiff, and said defendant, subject to the rules, regulations and constitution of said company, and did earn, place, and leave in the hands of said company, subject to the order of said plaintiff, more than one half of all his earnings, &c., living excepted, during said time : namely, one hundred and thirty-five dollars and upward ; that after the dissolution of said company, and during the remainder of said two years, the defendant did continue to devote his time and services earnestly and faithfully to the obtaining of money and property for the use and benefit of said plaintiff, but he did not earn, get, acquire or accumulate any thing over and beyond his “ living,” &c.</p> <p>To this plea the plaintiff filed a general demurrer, and there was a joinder.</p>

<p>This is a bill in equity, brought by George W. Hill and his wife against the Bockingham Bank and its president and cashier, and also Burnham O. Dennett and wife and William H. Deverson; and the grounds upon which relief is sought sufficiently appear in the opinion of the court.</p>

This is a bill in equity, filed in this court April 24, 1863, wherein Sarah Towle, as widow of Darius Towle, late of Hampton, in this county, deceased, complains against William T. Towle, Edward S. Towle, and Joseph S. Towle, all of Boston, in the county of Suffolk and commonwealth of Massachusetts, minors, and children of Archibald E. Towle, late of said Boston, deceased, and Nehemiah C. Berry, of said Boston, counsellor at law, as guardian of said minors, and says, among…

Writ op Entry, to recover a tract of land in Portsmouth, set off to the demandant, Charles Hodgdon, upon execution, as the property of John N. Sherburne, the judgment debtor, in the spring or summer of 1857.

This is an appeal by the railroad from the decision of the selectmen of Exeter, laying out a highway under chapter 2621, Pamphlet Laws. At the first term after the entry of the appeal, the railroad moved “ that the petition be dismissed, and that the decision of the selectmen thereon be reversed,” for-various reasons.

<p>Case by Simon F. Hayes against Jeremiah W. Waldron, for discharging saw-dust and shavings from the defendant’s mill into the Cochecho river, wdiieh ran through the plaintiff’s meadows below ' the mill, and was accustomed to overflow them in times of high water, whereby the saw-dust and shavings, in times of high water, were carried and deposited on these meadows. The defendant’s sawmill, situate on-his land on the river, was a belt mill, driven by water, and prior to 1847 the saw-dust had been carried by a belt and box into the wheel pit, whence it passed off’ through the tail race into the river. About 1857 the belt and box were changed so as to carry the saw-dust directly into the river opposite and back of the mill, which is some twenty feet from the river. At the river bank there is a bank wall some six feet high from the water, and the belt and box are some twelve or fifteen feet above the water, and extend just beyond the wall, so as to drop the saw-dust into the bed of the river. About 1852 the defendant put in a planing machine, and the shavings from it were carried away and burnt till July 4, 1858, when the defendant put in a belt and box similar to the other, and discharged the shavings into the river some twelve or fifteen feet below where the saw-dust was discharged. If there had been no belts and boxes to carry off' the saw-dust and shavings, they would have fallen into a room under the mill, and not into the water. In the winter the saw-dust and shavings accumulated where they fell into the river, and were from time to time shoveled into the river directly, or through holes cut in the ice., if frozen. The testimony was somewhat conflicting as to the extent of the accumulations and the frequency of the removals. As bearing on the question whether such discharge of saw-dust and shavings into the river was a reasonable use of the stream by the defendant, he offered to show a uniform, long continued, uninterrupted and undisputed usage for water saw-mills, planing machines and shingle and clapboard machines to discharge their saw-dust, chips and shavings into the stream; to which the plaintiff objected, but the court overruled the objection.</p> <p>Then a considerable number of witnesses, acquainted with sawmills, some with many, others with few, in that vicinity, and also in other parts of the State, testified that in all the water saw-mills they ever knew the saw-dust was discharged into the streams. All of the mills they had known, except a very few,. were not belt-mills, but the saw-dust in them fell directly from the saws into the wheel-pits, and passed off' through the tail races into the- streams. Some of the witnesses had known a very few belt-mills like the defendant’s. . Some had known quite a number of clapboard and shingle mills for long periods, and in all these the chips and refuse were discharged into the streams. Some had known a few water planing machines, and in these the shavings were discharged into the streams; except that one Walker testified that he “ thought that the refuse shavings from Barker’s planing machine at Bochester were carried away, but he did not know that they were not put into the river.” The defendant, however, testified that he “ thought the shavings from Barker’s machine dropped into the water.” These witnesses each stated the extent of his acquaintance with mills. Some had been acquainted with a considerable number of saw-mills and shingle and clapboard machines as long as forty or fifty years; and some had been engaged in milling; some were owners of lands on streams below such mills, and none had ever known any objection to be made by land owners to such discharges into the stream, or the right to make them to be in question; except one Palmer had known the right to discharge saw-dust from a saw-mill into a stream in Derry to be denied in two instances. In one a land owner below objected to the discharge, and the matter was referred; in the other the owners of a pond below this mill objected because the saw-dust was filling up their pond, but no suit was brought and no action was taken by them in the matter; also one "Whitehouse, who formerly owned the defendant’s mill, testified that one Peavey, a land owner below the mill, objected to the saw-dust going into the river while he owned the mill, but he asserted to Peavey that he had the right to discharge it into the river. This Palmer, who had worked much in saw-mills and some in the defendant’s mill, testified for the plaintiff that at the defendant’s mill the belt and box could have been extended across the river so as to deposit the saw-dust on land on the opposite side, and that it would not have cost over $50 so to have extended them; and that at a little more expense they could have been arranged so as to deposit the saw-dust in front of the mill, between it and the road; and so with regard to the shavings.</p> <p>The plaintiff requested the court to instruct the jury that the defendant had no right to conduct his saw-dust and shavings into the river, if they did any injury to the plaintiff’s lands below; also that he had no right to discharge them into the river unless such discharge was necessary to running the defendant’s mill.</p> <p>The court did not give these instructions, but instructed the jury upon these points as follows:</p> <p>“ That in general each proprietor of land through or over which a water-course flows, has an equal right to the use of the water flowing in its natural course, without diminution, obstruction or pollution ; and no one proprietor has the right to use the water to the prejudice of another’s right to enjoy it; for, the water-course being common to them all, there is an equality of right among the proprietors to the enjoyment of it, and no one can use the water flowing through his land to injure or annoy those above or below. Each may use the water as he pleases, so that his user is not inconsistent with the similar rights of the other proprietors. The effect of this equality of right, when practically applied, and of the mutual limitations of right among riparian proprietors, is to qualify somewhat the general principle first stated in its practical application. While such is the general principle, in its practical application it is subject to some qualifications; else it might, if applied literally, in many cases prevent any beneficial enjoyment of the stream. For many and indeed most important purposes there can not be a beneficial enjoyment without some diminution, detention or alteration of the velocity or condition of the stream. A use that made absolutely no diminution or detention, and strictly and literally added no foreign matter to a water-course, can not often be found that would be valuable to any one. The general principle is then subject to this qualification ; that each proprietor may use and apply the water, as it runs over his land, to domestic, agricultural or manufacturing purposes, provided he uses it in a reasonable manner, and so as to work no actual or material injury to the others; and by actual or material injury is here meant infringement of the rights of others. A use that essentially or perceptibly impairs the lawful use of the proprietor below, or his power to make such use, is unreasonable. The test is not whether it produces some inconvenience or detriment to him, but whether it impairs the full, reasonable enjoyment ofthe stream, that he is entitled to equally with the proprietor above. Because a party is put to some inconvenience, it does not necessarily follow that his right is infringed and he entitled to recover; but if his right is infringed at all, he is entitled to recover at all events ; if there are no actual damages, then nominal. These mutual rights are therefore accommodated to each other by restricting each proprietor to a reasonable use of the water and stream, such as does not perceptibly and really interfere with the right of each of the other proprietors to the reasonable enjoyment of it. The discharge of matters into the stream is lawful where and only where it is a reasonable use of the stream, when considered in reference to the equal rights of the other proprietors. Was the discharge of saw-dust and shavings from the defendant’s mill into the stream, as made, a reasonable use of this watercourse by the defendant upon his land, within the principle suggested ? The question is not, did it work to the plaintiff some inconvenience, but did it infringe his right to a reasonable use of the stream, or injuriously affect his power to enjoy that right ? A use, sensibly and positively injurious by diminishing the value of the common right of any proprietor, or by diminishing his power of enjoying a reasonable use of it, is not reasonable or lawful. In determining the reasonableness of the use, all the circumstances shown were to be considered; among which were the situation and circumstances of the lands adjoining this watercourse; the nature and importance of the use for which the right was claimed; how far the use, if important, could be had with practical benefit— could be of practical value without the right claimed; that is, the importance and necessity of the right claimed to milling; the extent of the detriment, inconvenience, or injury that such use would in fact inflict on the proprietor below,, and also the mode and extent of the discharge made; these were to be considered, with all the other circumstances proved in the case. If they found a long, uniform and uninterrupted usage of saw-mills, and shingle, clapboard and planing mills to discharge their refuse into the streams, they would inquire whether the usage was essentially different from the defendant’s practice. If not so different, they might consider such usage as competent evidence to be weighed with the other evidence upon the question of the reasonableness of the defendant’s user. They were to enquire whether, under all the circumstances shown, and considering the equal rights of the other proprietors, the use made by the defendant of the stream on his land by discharging into it the saw-dust and shavings from his mill as he did, was a reasonable use within the meaning suggested; a use reasonably necessary and proper to his beneficial enjoyment of this stream, and consistent with the equal right of the plaintiff to a reasonable enjoyment of the stream; such a use as did not materially affect the plaintiff’s power of lawful application of the water and the stream. If they found that the defendant made only a reasonable use of the water-course within the meaning suggested, he was entitled to a verdict; but if they found the use made by him was not such a reasonable use, the plaintiff was entitled to a verdict.”</p> <p>The jury having returned a verdict for the defendant, the plaintiff moved to set the same aside, because of these rulings and instructions of the court.</p>

<p>In a libel for divorce tbe husband is not a competent witness to prove non-access.</p>

This is an action for the support of a pauper, which was tried at a former term, but no verdict returned. At this term the folloAving order is made, subject to the opinion of the Avhole court, and the defendant excepts: Stratford ss — Supreme Judicial Court — February Term, 1863. Farmington v. Somersworth.

<p>When there are mutual accounts between the parties, and the plaintiff brings suit on his claim, and the defendant files Ms account in offset, the plaintiff may plead the statute of limitations to this offset; but only so much of the defendant’s account will be barred by the statute as had accrued more than six years prior to the date of the plaintiff’s writ.</p>

Assumpsit on a promissory note for $57.46, dated October 7, 1857, signed by the defendant, Mary J. Canney, and payable to the plaintiff, Thomas Shannon, in one year, with interest. Plea ; coverture at the time the note was given. The writ was dated April 5, 1862, an attachment was made April 7, 1862, and a summons was given to the defendant September 27,1862.

Debt on bond given by the principal defendant, as administrator of the estate of one Jedediah Cooper, who died intestate July 28, 1858. The action was brought for the benefit of William IT. Wood, administrator for one Winsor Cooper. It appeared that Winsor Cooper was a nephew of Jedediah Cooper, and entitled to one equal third part of his estate, which third part was some twenty-five thousand dollars.

Trover, for the alleged conversion of a horse on the 11th day of February, 1861. Both parties claimed under one Entwistle; the defendants, Edward E. Lyman and Norris G. Guernsey, by virtue of a mortgage, and the plaintiff, Franklin Y. Doolittle, by an exchange of horses made after the date of the mortgage. The defendants caused the horse to be sold at auction, claiming under their mortgage.

<p>If a question to a witness is allowed in the exercise of the discretion of the court'to admit leading questions in certain cases, that discretion will not be revised.</p> <p>If a question is objected to as leading, and admitted generally, and an exception saved, the point reserved is whether the question is leading, unless the case shows it to be admissible within the exceptions to the rule.</p> <p>The question, “ Have you traced the dividing line through your lot?” the place of the line being the matter in dispute, is admissible — it being introductory merely.</p> <p>“ State what Mrs. S. said as to holding by virtue of your deed all but fifty acres of said lot,” is leading; because the words, “ all but fifty acres of said lot,” assume that the claim made related to that.</p> <p>“ State whether L. denied the right of S. to hold what his deed covered by reason of an agreed line? If so, what line ?” is admissible ; the object being to prove what was not denied.</p> <p>A wife’s declarations are not evidence against her husband, though she is a party, and the suit is brought in her right.</p> <p>A wife’s declarations are not evidence because her husband was where he might have heard them. It must be shown that he was attending to what she said.</p>

<p>"Writ or Bower. Plea, husband not seized during coverture. By agreement of parties the case was tried by the court; an auditor to be appointed to assess damages, if judgment should be rendered for the plaintiff*. The court found the facts to be as follows :</p> <p>October 28, 1826, Samuel Hudson conveyed the farm, in which dower is demanded, to Elisha Hinds, the plaintiff’s husband, by warrantee deed. On the same day Hinds mortgaged the farm to Hudson to secure the performance of the condition of a bond from Hinds to Hudson and wife, to support them during their lives.</p> <p>December 27, 1834, Hinds executed three several mortgages, one to Mary B. Hinds, one to Amanda Hinds, and one to Hannah Hinds, of three several parts of the farm, and these three parts included the whole farm. September 12, 1840, Hinds’ equity of redemption was sold on execution to Elijah Barr. September‘2, 1842, Barr conveyed his right by quitclaim deed to one Humphrey, who had married Mary E. Hinds after the execution of the mortgages. August 31, 1842, Hannah Hinds and one Pratt, and his wife Amanda (formerly Amanda Hinds), assigned their mortgages to Humphrey. September 6, 1842, Humphrey quitclaimed all his interest to one Lewis, who, after having conveyed his interest and received it back again, finally conveyed to the defendant September 22, 1857.</p> <p>Elisha Hinds supported Hudson upon the farm till about 1839, when he ceased to support him and left the farm. In 1841 Hudson lived on the farm, and had a man to carry it on. In 1842 the town commenced to support Hudson as a pauper, and took possession of the farm, claiming Hudson’s rights. The town incurred expense in supporting Hudson to the amount of about $150, and caused legal proceedings to be instituted to secure Hudson’s rights in the farm.</p> <p>When Lewis received his conveyance from Humphrey, it was understood and agreed by Lewis, Humphrey, Hudson, and the town, that Hudson’s support was secured upon the farm; that Lewis should pay the town all its charges for supporting Hudson, should support Hudson during his life, and pay Humphrey the amount of six notes. Lewis went on the farm, supported Hudson during his life, and paid the town. The town refused to discontinue the proceedings to secure Hudson’s rights, unless Lewis would pay the town the amount expended by it in supporting Hudson. It was understood, by all parties concerned or interested, that Lewis was to own the farm upon the condition that he should pay the town, Humphrey, and support Hudson.</p> <p>The questions of law arising upon the foregoing case were reserved.</p>

Indictment, alleging “ that Carey Hobbs, of Dorchester, in the county of Grafton, on the 22d day of August, in the year of our Lord 1862, at Dorchester aforesaid, in the county aforesaid, volunteered and enlisted in the army of the United States, and afterward, on the fifth day of September aforesaid, in the year aforesaid, was, as a member of the volunteer militia of the State of New-Hampshire, mustered into the service of the United States, and that the said Carey Hobbs…

This was an indictment for larceny, in which the respondent was charged with stealing, on the 2d day of February, 1863, at Northumberland, certain goods and chattels of C. P. True & Oo., and certain other goods and chattels of James P. Spaulding.

<p>Trover, for one million feet of pine boards. The issue was tried by the court, and the following facts found: On the 24th of April, 1858, a writ was duly issued in favor of Henry Fling against Moses Pattee, of Bethel, Me., returnable at the November term of the court of common pleas for Coos county, 1858. This writ was given to said Johnson, who was then a deputy sheriff for said county, for service, April 26, 1858, who attached, as the property of the defendant, all the merchantable white pine boards lying about the depot, between the railroad track and the river road, in Berlin, in said county, and left an attested copy of the writ and of his return thereon at the dwelling-house of Dexter 'Wheeler, town-clerk of said town of Berlin, at 12 o’clock at noon of said day.</p> <p>On the 26th day of May, 1858, personal service was made on said Pattee at said Berlin.</p> <p>On said 26th day of May said Johnson found said Pattee and his hands loading this lumber upon the cars. He forbade their moving the lumber, and notified A. A. Knight, the station agent of the railroad at.that station, of the attachment of this lumber, and ordered him not to let the lumber go off upon the cars, and notified him, if he did so, said Johnson would hold the railroad company responsible for the same. This was before any of the lumber had started from the depot, though some of it was loaded upon the cars. This lumber -was lying upon the company’s grounds, kept and used for such purposes, when it was attached, and it was all carried off by the company for said Pattee on their cars, on or immediately after May 26, 1858. At the May term of said court, 1859, judgment was rendered in said action for $237.18 damages, and $15.93 costs, and execution issued thereon, which was given to said Johnson for collection, who, August 27, 1859, demanded said lumber of said Knight, then the station agent of said road at said Berlin, and on the 1st day of November, 1859, returned said execution wholly unsatisfied, with the return of nulla bona.</p> <p>This suit was commenced March 23, 1860, and was brought to recover damages for the lumber thus carried away by the defendant as aforesaid; and by agreement of parties the questions of law arising upon this case were reserved and assigned to the law term; judgment to be ordered for the plaintiff or defendant, as the opinion of the court might be, with the right to have the damages assessed by a jury, or otherwise, as the parties might agree, should judgment be ordered for the plaintiff.</p>

<p>Indictment, for neglecting to rebuild and keep in repair a bridge across the Ammonoosue river, from May 1, 1845, to the time of finding the indictment, which was November term, 1862.</p> <p>It appeared in evidence, or was admitted, that from 1812 to 1845 there was a public highway along the Connecticut river, and through the town of Northumberland, which crossed the Ammonoosuc river at the place described in the indictment, and that during all that period a bridge had been maintained there as part of said public highway; that during the year 1845 the bridge was carried away, and another one erected about twenty-six rods above, over the same stream, and the road changed for some distance to higher ground, and the latter bridge stood until 1857.</p> <p>The defense was that the want of a bridge at the old spot could - not be regarded as a nuisance, because there was no existing highway leading to it, by means of which a bridge there could be used.</p> <p>"Upon that point it appeared that at about eighty-five rods northerly of the point in question the road came to the bank of the Connecticut river at a sharp bend in its course, at which point the river, during the period between 1812 and 1845, had been gradually encroaching upon the highway, causing it to be removed from time to time further inland, until, by the year 1845, the whole bed of the river, which is there about sixteen rods wide, was changed to the east of where it was in 1812, leaving the site of the road, as it then existed, now on the other side of the river, in Vermont.</p> <p>In 1845 the old bridge was carried away, and the road at this bend undermined and washed away; and for the purposes of this case it is conceded that the new road across the Ammonoosue river, twenty-six rods above the old one, run into and united with the old one at the bend, a short distance, about 41f rods above where it was so cut off by the river, leaving the space of 41-| rods between the end of the old road at that point, and the place where the new road came to the river bank, over which space the road has not been renewed or traveled since 1845.</p> <p>On the part of the State it was contended that, as the river encroached upon the highway at this bend, the town had the right by necessity to construct the road on the bank remaining, and that the easement still exists along on the bank remaining, although over the space of 41-§- rods as aforesaid the right was not used since 1845.</p> <p>The town, on the other hand, contended that, the whole road at that point being carried away, no right of way existed upon the present bank; and therefore that there was no public highway by which the bridge, if erected, could be used; and the town also contended that the right of way was lost by abandonment, it not having been used since 1845.</p> <p>It appeared that the distance from the site of the old bridge to where the road was so cut off in 1845 is eigbty-ffve rods, extending through a meadow under cultivation, and comprising part oí a farm lying on the Ammonoosue and Connecticut rivers, at their junction, belonging to John Eames, who lives in Northumberland, on the south side of the Ammonoosue river, at the point indicated on the plan, but that there are no houses or other buildings on this part of the road, from the old bridge site to said bend; although said Eames has a bam on said farm on the north side of said Ammonoosue river, 162 rods easterly of the old road. The entire tract of land of said Eames on the north side of the Ammonoosue river, lying as showm upon the plan, is about one hundred acres, two thirds of which is cleared and used as mowing, but is rather a low meadow, and inconvenient to cross with teams, except in dry seasons of the year.</p> <p>The hay produced on this meadow is not of a very good quality, but in quantity a fair crop, and the said Eames has occasion to use it, or some of it, at his barns near his residence. Before the bridge wras carried away, some of the hay was taken across one of the bridges aforesaid, and some of it, after being deposited in the barn on that tract, was taken directly across the Ammonoosue river in the winter.</p> <p>In the years 1861 and 1862 the said Eames drew considerable quantities of hay from this lot to his residence, coming on to the road between the bridge and said bend of the Connecticut river, and then round by the railroad depot to his house, a distance of about five miles —the distance from the old bridge site to his house by the old road being about one mile. In 1861 he drew fifteen large loads, and in 1862 ten large loads, with four oxen, or four horses. This hay was drawn in the summer, and was drawn over said meadow to the road hear the bend, and some of it from the land near the barn.</p> <p>Bor the purpose of raising the questions of law a verdict was taken by consent against the town, subject to the opinion of the court upon the foregoing case ; with the provision that if the. town shall desire to try the question of abandonment by the jury, after the opinion of the comí is made known, the verdict shall be set aside for that purpose; in which case it shall be open to the State to contest the position that there was a space of 41f- rods between the end of the old road as cut oftj and the place where the new one struck the bank, as conceded, for the purposes of this case. At the hearing, the parties may refer to the plan of Mr. Bucknam, used on the trial; with the further provision, that the question whether the road now existing on the north side of the Ammonoosuc river is of such extent and utility as to render the want of the bridge a nuisance, may be reserved for trial by the jury, and the verdict set aside for that purpose, unless, in the opinion of the court, it would avail nothing.</p>

House oe Representatives, June Session, 1868. “ Ordered, That the clerk be requested to furnish a copy of the bill entitled £ An Act to secure the right of suffrage to the qualified voters of this State engaged in the military or naval service of their country,’ to each of the Justices of the Supreme Judicial Court, with the request that they will inform the House, at an early day, of their opinion concerning the constitutionality of the bill.”