Volume 45 — New Hampshire Reports

<p>In Assumpsit, the plaintiff alleges, that at a legal town meeting- of the town of Hopkinton, duly notified and holden, on the 20th day of August, 1862, said town, pursuant to an article in the warrant for calling said meeting, voted, in substance, to pay to each citizen of that town, who should voluntarily enlist in the military service of the United States, to fill up an old regiment already in the field, for three years, or during the existing war, to aid in filling up the quota of recruits required to be raised in said toAvn, under the call of the President of the United States for three hundred thousand volunteers, the sum of tAVO hundred dollars, on demand. And the plaintiff, being a citizen of that town, and relying, &c., afterwards on the 27th day of August, 1862, at, &c.., at the request of said town of Hopkinton, voluntarily enlisted, and on the same day was duly mustered into the military service of the United; States, to wit, into the First Pegiment of U. S. Sharpshooters, to fill up an old regiment already in the field, to serve for three years, or during the war, to aid in filling the quota of recruits required to be raised- in said town,under the aforesaid call of the President of the United States, of all which said tOAvn had due notice, to wit, &c., Avhereby said town became liable, and in consideration thereof, promised then and there to pay the said plaintiff, the sum of two hundred dollars on demand; yet though often requested, to wit, on, <&c.</p> <p>The plaintiff’s evidence tended to prove the facts alleged in the declaration.</p> <p>The article in the warrant for the town meeting was as follows :</p> <p>" To see if the toAun will vote to pay a bounty to the soldiers who have,, or may enlist, from this town, into the- United States military service,, under the call of the President of the United States for 300,000 volunteers, for the term of three years, also for-the 300,000 nine months militia, in addition to bounties now offered by the State andUnited States and to raise money for that purpose.”</p> <p>The vote of the town was as follows :</p> <p>Resolved, That we pay to all, who have enlisted during the war since the last call for 300,000, §150.00; all who will enlist, or have since the first day of August, to fill up old regiments, §200.00; all who will enlist for nine months, §75.00 ; all who will enlist for three years, or during the war, after this date, unless honorably discharged, §200.00.</p> <p>The plaintiff offered a copy of the call of the President of the United States for volunteers, as follows :</p> <p>Executive Mansion, Washington, July 1,1862. 'Gentlemen:— Fully concurring in the wisdom of the views expressed to me, in so patriotic a manner by you, in the communication of the 28th of June, I have decided to call into the service an additional force of three hundred thousand men. I suggest and recommend that the troops should be chiefly of infantry. The quota of your State would be- — . I trust that they may be enrolled without delay, so as to bring this unnecessary and injurious civil war to a speedy and satisfactory conclusion. An order, fixing the quotas of the respective States, will be issued by the War Department to-morrow. Abraham Lincoln.</p> <p>To the Governors of Maine, New Hampshire, &c.</p> <p>War Department, Washington Oity, 7 July 7, 1862. ' 5</p> <p>Hon. Nath’l. S. Berry, Governor of New Hampshire, Concord: — - You are requested to raise, as soon as practicable, for the United States service, for three years, or during the war, two regiments of volunteer infantry, being part of your quota under the call of the President.</p> <p>By order of the Secretary of War,</p> <p>C. P. Buckingham, Brig. Gen’l, A. A. G.</p> <p> War Department, Adjutant General’s Office, 7 Washington, October 31, 1863. </p> <p>It appears from the records of this office, that the President of the United States addressed under date of July 1, 1862, a letter to the Governors of Maine, New Hampshire, &c., (other States being named,) calling for their respective quotas of three hundred thousand men, and that the Governor of New Hampshire was requested, on the 7th of July, 1862, to raise two regiments of infantry, and I do certify that the documents annexed are true copies of the aforesaid papers.</p> <p>E. D. Townsend, Ass’t. Adjutant General.</p> <p>'Be it .known, that Edward D. Townsend, who has signed the foregoing certificate is the Assistant Adjutant General of the United States, and that, .to his attestation as such, full faith and credit ought to be given.</p> <p>In testimony whereof, I, Edwin M. Stanton, Secretary of War, have hereunto.set.my hand, and caused the seal of the Department of War of the United States of America, to be hereunto affixed, on the thirty-first day of October, one thousand eight hundred and sixty-three.</p> <p>[l. S-3 Edwin M. Stanton, Secretary of War.</p> <p>To this evidence the defendant objected, because those documents, if produced, are not the best evidence of the President’s call for men, and because the certificates of the Assistant Adjutant General and the Secretary of War are not sufficient to authenticate the said copies. The plaintiff urged that the court would take notice of these documents ex officio, as public acts of the Government.</p> <p>For the defendant it was contended that the vote of the town was unauthorized and illegal, and the town was not bound by it.</p> <p>The case was tried by the court, who held that the evidence of the President’s call was sufficient, and the proceedings of the town were sufficient, to which the defendant excepted.</p> <p>The court found a verdict for the plaintiff. The defendant moves for a new trial on these, and other grounds not deemed material to be reported.</p>

<p>This is an application by Job M. Jewett, for a writ of habeas corpus directed to Isaac C. Barrett and Matilda, his wife, to bring up the body of Emma M. Jewett, the daughter of the applicant, about three years of age, and alleged to be unlawfully restrained of her liberty.</p> <p>On the part of the respondent it is made to appear, that the said Emma when about two months old was placed in the care of her aunt, the said Matilda, by her mother, who was at work in the Pemberton Mills, Lawrence, and on that account found it inconvenient to keep the child; and to this the father assented; that the child remained with the respondents until the death of its mother, which was caused by the fall of the Mill, January 10th, 1860, and so continued until March 2, 1860, when the relator then residing with the respondents, made with them an agreement in writing and under seal as follows :</p> <p>This may certify that I, Job M. Jewett, of Lawrence, county of Essex, and commonwealth of Massachusetts, do hereby, in consideration of the agreements hereinafter to be mentioned, relinquish and surrender up to said Isaac C. Barrett and Matilda, his wife, both of Bridgewater, in the county of Grafton, and State of New Hampshire, all control and custody which I have as a parent and father over the person and custody of my little daughter, Emma M. Jewett, ten months old, until the said Emma is of the age of eighteen years; and the said Isaac O. and Matilda Barrett are to have the custody, control, and the bringing up of said child until that age, the same as if she was their own child, without an interference on my part.</p> <p>And the said Isaac C. and Matilda Barrett, on their part, agree to give said Emma á good common school education and learn her to do all kinds of work necessary for her future welfare and success in life, that is usually taught girls in New Hampshire; and bring her up in all respects in a suitable and proper manner, and be, so far as they may be able, a father and mother to her, and provide her with suitable food, drink, lodging, and all other necessaries according to their means and circumstances in life.</p> <p>In witness whereof the said parties have hereunto set their hands and seals this second day of March, 1860.</p> <p>J. M. Jewett, [Seal.]</p> <p>J. C. Barrett, [Seal.]</p> <p>M. Barrett, [Seal.]</p> <p>In presence of</p> <p>Lewis W. Fling.</p> <p>And that the said Emma has ever since remained with the respondents under said agreement.</p>

<p>In an action of assumpsit against two defendants, which was tried by the court, the plaintiff, after a verdict against him upon the ground that a joint promise was not proved, cannot amend by striking out one of the defendants.</p>

<p>It is within the power of the Court, by special order, to allow depositions,taken in another suit between the same parties, to be read at the hearing of a cause in equity.</p>

Assumpsit, by the plaintiffs, as assignees of a policy cf insurance, for §2000 on a dwelling bouse in Nashua. A. ~W. Dickey, claiming the property,subject to a mortgage of $1400, applied on the 13th of May, 1851, to the defendants for insurance, and on the 17th of May, 1851, they issued to him a policy on the property, for $1500, for six years.

<p>This is a bill in equity which was heard upon bill, answer and proofs, and the facts sufficiently appear in the opinion of the court.</p>

<p>Covenant broken, for rent of a room in the plaintiffs brick building on Manchester street, directly over the room now occupied by Vm. H. Gilmore for printing, with the appurtenances.</p> <p>Plea, g'eneral issue with a brief statement, a copy of which is hereto annexed and made a part of this case. It was agreed that the engine, referred to in the brief statement, was not the property of the plaintiff, but was owned and controlled by others. On motion of the plaintiff, the brief statement was rejected, with leave to file a new brief statement in substance, that, during the continuance of the lease, there had been a breach on the part of the plaintiff of the covenant for quiet possession. And that the lease had been surrendered or cancelled. To which ruling the defendant excepted. The defendant then moved for a continuance of the action, on the ground of the absence of a material witness, and in his affidavit, in support of the motion, set forth that" I expect, if present,” he (the witness) would testify " that he was present and saw me pay the plaintiff the amount due him, Oct. 15, 1860, and that I then returned him the key of the premises for which he now claims rent after that time, who said it was all right, and that he, (the ■witness) then understood that I had surrendered the occupation of the premises to the .plaintiff, and that the plaintiff had accepted of them, and that I was discharged from further claim on account of the same,” and states the reason for his belief the witness would so testify, and the effort he had made to get his evidence. The plaintiff objected that the affidavit was not sufficient cause for continuance, on the ground that the evidence stated in the affidavit was not competent to prove a surrender of the lease. For the purpose of determining the law in the case before trial, the Court ruled that the evidence described in the affidavit was not admissible, and the defendant excepted. A copy of the lease is to be furnished to the Chief Justice and may be referred to in argument.</p> <p>Ordered, that the questions of law, arising upon the foregoing ease, be reserved for the whole court, the case to be discharged after the decision thereof, if the defendant shall so elect.</p> <p>(AL Copy of Brief Statement.)</p> <p>The plaintiff will take notice, that on the trial of the above issue, the defendant will prove that before the alleged execution of said indenture, a steam engine had been placed in the plaintiff’s said brick building, which was connected by means of belts and bands with the machinery used and occupied by the defendant in the room aforesaid, and supplied motive power for the operation of the same. That subsequently to the execution of said pretended indenture, the plaintiff agreed with the said defendant that no power should be taken from said steam engine to the disadvantage of the defendant, but that the plaintiff, notwithstanding said agreement, permitted said power to be diverted and to be used for driving a circular saw and planing machine, a coffee and spice mill, and other machinery, to such disadvantage and loss of the plaintiff in the business which he was conducting in said room, that the occupation of the same, prior to the 14th day of October, 1860, became and was of no use or profit to him, but, on the contrary, was only his loss and detriment.</p> <p>2. That the plaintiff, during the defendant’s occupation of said room, entered the same without the license or permission of the defendant, cut through the floors and ceiling thereof for the purpose of conducting leathern belts and bands through said room to the various machinery aforesaid with which the motive power of said steam engine was connected, to the detriment and wrong of said plaintiff.</p> <p>3. That the defendant ascertained after his occupation of said room commenced, that the said brick building was unsafe and dangerous to the occupants thereof and their property by reason of the defective walls and posts thereof, the weak and leaky condition thereof and the dangerous condition of the steam engine aforesaid, and</p> <p>4. That, therefore, the plaintiff having disregarded his agreement aforesaid, and the defendant having incurred great loss by reason thereof, and being imperilled as aforesaid, on the 15th day of October, 1860, paid to the plaintiff the full rent due from him to said plaintiff for the occupation of said room up to that time, and that thereupon, the defendant quit the said premises with the knowledge and consent of the plaintiff, and thereupon delivered up the premises with the key thereof to the plaintiff, who accepted the same and discharged and released the plaintiff from all obligation arising under and by virtue of the covenants contained in said supposed indenture.</p>

Debt on a judgment in favor of the plaintiff against the defendant, rendered in the Court of Common Pleas, in this county, April Term, 1848. The original writ was against Samuel Stevens, as principal, and said Cloutman as trustee. As to the principal defendant, who was described as late of Mount Yernon, in this county, the writ was returned non est inventus, the return also stating that he was not an inhabitant of the State.

This is a bill in equity brought by Stephen Nicker against Blanchard and Brother, the assignees of a mortgage of lands in Manchester, made by David Nicker to the Trustees of the Manchester Loan and Fund Association. The plaintiff claims by virtue of a subsequent mortgage by said David Nicker of the same lands, and the bill is brought to redeem those lands from the mortgage now held by the defendants.

<p>Theodore Moses, on the 16th day of September, 1861, made his will, and on the 16th of June, 1862, executed a codicil annexed to it, and subsequently died.</p> <p>At the court of probate, held at Exeter, on the day of 1863, for the County of Rockingham, the will was presented for probate by two of the executors named in it, the third having declined to act, and on the 14th day of January, 1863, it was proved and approved as said Moses’ last will.</p> <p>On the 26th day of February, 1863, the appellants, Luke Julian and his wife, Abigail T. Julian, who was a daughter, and one of the heirs at law of said Moses, claimed an appeal from the decree of the Judge of Probate, which was allowed, and was entered at the next term of the Supreme Judicial Court for said County, and at the June term, 1863, the executors acting, came into court and moved that the said instrument may be proved as the last will of said Moses.</p> <p>Thereupon the appellants plead that the same ought not to be approved and allowed as aforesaid: I. Because, they say, that at the time of making and executing said instrument by said Theodore Moses, bearing date on said 16th day of September, 1861, it had no seal upon it; and this, &c., and issue was joined. N. Because, they say, that the Judge of Probate for said County of Rockingham was of counsel, and advised said Theodore Moses in relation to said paper, or instrument, dated on the 16th day of September, 1861. III. And because the Judge of Probate for the County of Rockingham wrote said instrument, and thereby being interested, approved and allowed said instrument, dated September 16th, 1861, in his official capacity. To the two last pleas there was a general demurrer. And, IV, because said instrument being indefinite and uncertain, is void; to this plea there is an issue to the country.</p>

<p>The homestead exemption act does not apply to contracts made on the 1st day of January, 1852, but only to those made after that day.</p> <p>Judgment was recovered on a note dated May, 1853, signed hy Dudley and one Robinson. But it appeared that this note was given for two notes previously given by Dudley, one of them directly to the plaintiff and the other to one Palmer, which he endorsed to the plaintiff, and both dated before January 2,1852. Held that the homestead exemption did not apply in this case in favor of Dudley, though it would in favor of Robinson.</p> <p>When two persons state upon the stand that they have examined a certain record or memorandum, and having refreshed their recollection thereby, are able to swear to a certain date mentioned therein, but disagree in regard to the date, the record or memorandum becomes material to show which is correct.</p> <p>When a levy of an execution is properly made upon land, and seizure aud possession of the laud is delivered by the officer to the creditor, aud the execution and return are properly recorded, and the time for redemption has expired, the creditor may bring his writ of entry without any further entry upon the land.</p> <p>Whatever may be the relations between the original parties to an accommodation note, yet when the note is put in circulation in the usual course of business it stands like any other note and takes effect from its date, and the homestead exemption does not apply in favor of the maker of the note, if it was dated prior to January 2, 1852, though it may not have been put in circulation till after that day.</p> <p>Jior would it make any difference if the purchaser of said note for value knew thatit was originally an accommodation note.</p>

In assumpsit, the declaration was as follows : To answer to Frank T. Pickering of Newington; in said county, husbandman, and Sophia E. G. Pickering of said Newington, wife of said Frank T. Pickering, matron.

Tins is a bill of review of a decree in Equity, in a suit in favor of George C. Fifield against Bartlett & Miller, and the nature of the case is sufficiently set forth in the opinion of the court.

<p>A riot is an offence at common law, and in an indictment it is not necessary to allege a proclamation to disperse; or that tlie respondents assembled to assist each other in the execution of an act of a private nature; or that they executed the act for which they assembled; neither is the indictment open to the objection of duplicity because it alleges a riotous assembly, and an act of violence, which of itself might constitute a distinct offence.</p>

<p>In a grant “to the inhabitants of a town to be held by them as a body politic and corporate, and to their successors forever,” the title vests in the town as a corporation,</p> <p>in the case of such grant made in 1803, to the use of the minister then settled in the town of New Market, as long as he should be the settled Congregational minister there, and then to bo and remain for the use of the minister of that persuasion that shall be settled in that town; the title vests in the town in its parochial, and not in its municipal, character.</p> <p>Where the voluntary religious Society which existed at the time of this grant, and over which the minister referred to was settled, was afterwards, under the statute of Juiy 3, 1827, organized and became a body corporate and politic, capable of taking and holding real and personal estate for the use of the Society, and the town was no longer charged with any parochial duties in relation to such Society; — held, that the legal, as well as beneficial estate in the lands so granted, passed to, and were vested in, that Society, as the successor to the parochial rights and duties formerly belonging to the town.</p> <p>Where the cestui que trust m possession disavows the trust, and claims to hold the land by a title hostile to that of the trustee, and this, by some clear and unequivocal act, is distinctly brought to the knowledge of the trustee, the possession will, from that time, be deemed to be adverse.</p> <p>In such a case it is not essential that the cestui que trust should claim an absolute fee simple or freehold in himself, but it is sufficient if the title claimed be in trust for the use of the ministry iu a certain religious society forever.</p>

Assumpsit for §1300, money had and received. By agreement of the parties the case was tried by the court. The plaintiff, as administrator of George Mathewson deceased, claimed a balance of §1319.59, upon his intestate’s account of deposits and payments in the defendants’ bank, which was admitted.

Debt on bond, for $350. The condition was to pay all such costs as said Company might recover against Susan M. Worster in an action brought by her against said Company. The plea was the general issue under the general rule. The plaintiffs produced the bond declared on; the execution was held to be admitted under the general rule.

Indebitatus Assumpsit. The writ was dated January 2,1863. The first count was in common form for use and occupation of a dwelling house.

<p>A libel for divorce should contain allegations of every fact, the existence of which is made necessary by the statute, in order to the granting of the divorce.</p> <p>The admissions of the libellee are not held to be sufficient evidence alone to prove the charge of adultery in a libel for divorce.</p>

<p>This is an action of assumpsit, founded on a promissory note. The writ is dated April 11, 1863. The defendant has since been placed under guardianship by a decreed of the probate court in this county, and by a decree of the same probate court, made on the 7th day of July, ‘ 1863, his estate was decreed to be settled in the insolvent course. The guardian, W. G. Jones, appears by counsel and moves that the action be dismissed.</p>

Writ of Entry, on a mortgage. Defendant pleaded in abatement a defect in the service of the writ, in this, — that the writ contained a clause of ad damnum $500, — and the copy of said writ given to defendant contained no such clause.

In Equity. Abel Merrill, Ai Read, George Bryant, Samuel B. Duncan, George C. Freeman, George Westgate, Isaac W. Westgate, and Cyrus S. Richards, all of Plainfield, in said county of Sullivan, yeomen, complain against the town of Plainfield, in said county, a municipal corporation duly established by the laws of said State, Albert S. Eaton, Farnam J. Morgan, and Orra C. Pierce, of said Plainfield, yeomen, Selectmen of said Plainfield, and Benjamin C. Smith, of said…

This is an action of trover against the defendant, Sheriff of the county of Sullivan. The property mentioned in the first count in the plaintiff’s declaration was mortgaged to the plaintiff by Peter Barton, on the 24th of June, 1861, by a deed of mortgage, duly executed and recorded, made to secure the payment of sundry notes of said Peter, all of which were fully described.

This was a petition for an order of court to remove a pauper in said Goshen from this county to the county of Hillsborough.

This is 'a writ of entry upon a mortgage, or conditional deed, though, not counting upon it, referring to it in terms, from Moses H. Northy to Philip Northy, dated the 16th day of April, 1859. The mortgage was of a farm in Lisbon, previously owned by Philip Northy. Philip Northy deeded it to Moses H. Northy, his son, taking the aforesaid mortgage back, conditional for his and his wife’s support during life.

Indictment for rape upon one Sarah Maria Philbrick, on the 16th of December, 1861. Mrs. Philbrick was at the time residing with her father, Mr. Israel Perkins, of Warren.

The writ is dated May 4, 1861, and contains a count for money had and received, and for interest, and also a special count, alleging that the defendant at, &c., on, &c., in consideration that the town would choose and appoint bim collector of taxes, &c., for the year 1858, and deliver to him the tax book and warrant, containing a list of the assessment of taxes upon, &c., for said year, promised the plaintiff that he would account, on demand for the amount of said…

This was an action of assumpsit, and was committed to a referee, whose report, in substance, is as follows : I find due to the plaintiff, for board of his mother, Polly Patterson, the wife of the defendant, for the fifteen months before the date of the writ, including all clothing furnished her, and all washing, and nursing, the sum of $60.00.

Assumpsit. The declaration contained three special counts for breach of promise to marry. The defendant pleaded in abatement that the summons did not briefly give to the defendant the same information which the declaration gave more at large, nor contain the substance thereof, “in that the declaration contains three counts, while the said summons contains only one countand also, in another particular, which sufficiently appears from the opinion of the court.

Foreign Attachment. The town of Clarkville, summoned as the the trustee of Augustus Heath, the principal defendant, disclosed, that, at a town meeting duly warned, and held on the 29th day of August, 1862, for the following purposes—“first, to see if the town will vote to raise money to pay volunteers who have enlisted, or who may enlist, into the service of the United States,—second, to see how much money the town will raise to pay volunteers,—third, to transact all other…

This is a petition for a temporally injunction, addressed to Nesmitb, J. in vacation, and referred by him to the Court. It is attached to a bill in equity, in which the the plaintiff alleges that he has been, for many years past, seized in fee and possessed of certain meadow lands in Chester, containing 15 acres, (described,) with the privileges, &c., lying on both sides of the Shackford brook.

<p>Under the provisions of our statute relating to the process of foreign attachment, an executor or administrator may be charged as the trustee of an heir or legatee, for any sum of money found to be in his hands upon the settlement of the estate belonging to such heir or legatee.</p> <p>And where process is served upon the executor as trustee, before the settlement of the estate, or before it is rendered certain that there will be anything in the hands of the trustee belonging to the principal defendant, the action will ordinarily be continued until the settlement of the estate, or until the liability of the trustee can be definitely settled and determined, when he will disclose and be charged or discharged, according to the facts as they exist at the time of the judgment.</p> <p>When, money in the hands of a trustee is payable to the principal defendant in ten equal annual payments, only so much of it can be held upon the trustee process as is due and payable at the time the plaintiff takes his judgment.</p>

This was a petition for the removal of a pauper, and was as follows : To the Supreme Judicial Court for the County of Merrimack, holdeh at Concord, in said County, on the First Tuesday of February, A. D. 1862: Respectfully represents said County of Merrimack, that on the 4th.'day of December last, John M’Coy, a poor person, having no settlement ill any town in said County of Merrimack, and no relatives therein of sufficient ability to maintain him, was brought from Lempster,…

This was an action of trover for 2 book cases, of the value of ten dollars each, 1 office table; $6, 1 looking-glass, $5, and all the books in the office of George Tenney, at Concord, of the value of $120; all of the value of $150. A second count described the book as all the books in the office of George Tenney, in Concord, on the 11th of June, 1860. The conversion is alleged on December 28th, 1860.

<p>After money has been paid by a town to a volunteer, as a bounty, under the act to encourage enlistments, it is no longer exempt from attachment by the trustee process, but may be reached like any other money.</p>

<p>Appeal by the defendant from the judgment of a Justice of the Peace.</p> <p>The action is brought by the plaintiffs under the landlord and tenant act to obtain possession of certain premises in Fisherville. The writ is dated Dec. 2, 1868, and the plea is the general issue. The plaintiffs’ title is by a deed from certain grantors, whose seizin was admitted, to "Samuel C. Pickard, Seth B. Iioit, and George-B. Elliot,” of, &c., "trustees of the Washington Hotel Company,” to them and their heirs, forever, and in all other respects is a warranty deed to the plaintiffs in common form. The defendant entered the demanded premises under a contract of letting made with him by the plaintiffs, either as trustees or as owners of the land, and his rent was payable monthly. The notice to quit was dated Oct. 31, 1863, and was served on the defendant upon the same day by Samuel C. Pickard. It is a notice in the usual form, requiring the defendant to quit, &c., the premises on the first day of December then next, and is signed, " Samuel C. Pickard, Seth B. Iioit, George B. Elliot, by their Att’y, N. Butler.” No objection was made to the notice by the defendant, at the time it was delivered to him, nor at any time before the commencement of the suit. N. Butler is an attorney of this court who commenced, has conducted, and still conducts, the present proceedings as attorney for the plaintiffs. The defendant objected to the sufficiency of the notice, but the court overruled his objection. The defendant offered evidence tending to show that one of the plaintiffs had not authorized or assented to the notice at the time it was served, or at any time thirty days before the expiration of the notice, or authorized or assented to the commencement of this suit, but the court rejected the evidence. To these rulings the defendant excepted.</p>

Assumpsit on the promissory note of the defendant, dated May 9, 1859, for §224.00, payable to Hepsabah Temple, or order, who after-wards married the plaintiff, and has died since the commencement of… Held: then this case shall be discharged for further proceedings. The plaintiff, after the trial commenced, claimed the right to reduce the note to possession, and exercised it so far as he might then do so. The questions of law arising in this case were reserved.

In Equity. This is the same proceeding as in Raymond v. Putnam, 44 N. H. 160. The original bill was only against Putnam and Chase, and it was settled that it must be dismissed, as it then stood, for want of proper parties, and also, because Eaymond had no claim upon Putnam & Chase, as appeared in the former opinion. Since that time the plaintiffs bill has been amended by adding Obed Chase and Came, and Clime & Palmer, as defendants, upon whom proper service has been made.

In this case the insurance company is summoned as the trustee of the principal debtor, and it appeared from the disclosure that the trustee had insured the debtor’s property against fire by two policies, one for §1000, on shop building, water wheel and main shafting.” The other for the same sum, to wit: $300 on lumber, finished and manufactured work,” $700-, on moveable andfixed machinery, and tools and fixtures.” Afterwards the property insured, or a portion of it, was…

<p>Police courts have authority to commit to the House of Reformation for a term longer than. the alternative imprisonment which may be awarded.</p> <p>In the case of a conviction for an offence which might by law be punished by imprisonment in the State Prison, common jail, or house of correction, the offender may be sent to the House of Reformation, although the alternative sentence actually awarded was the payment of a fine only.</p> <p>A commitment to the House of Reformation, without any alternative sentence, is irregular; but can be corrected only by proceedings instituted directly for that purpose and not upon habeas eorpus.</p>

<p>This is a bill in equity and the facts sufficiently appear in the opinion of the Court.</p>

Case, founded on the act of July 15, 1854, making cities and towns liable for damages caused by mobs or riots.” The following statement of facts was agreed upon by the parties : The property destroyed consisted of spirituous liquors, the fixtures of a bar, furniture of a refreshment saloon and some other goods, and was destroyed by a mob, in a refreshment saloon kept by the plaintiff, in Manchester, at the time of a firemen’s muster, Sept. 14, 1859, under the following…

This was assumpsit, to recover the price of 126 1-2 days labor of tbe plaintiff for the defendant, commencing early in June, 1862, and ending November 3d, of the same year, charged at §1.75 per day, making §221.38, together with §0.62 for work upon a saw. There was also a credit by plaintiff of §55.00, leaving a balance of §167.00.

<p>Where the mortgager of real estate has demanded of the mortgagee an account of the amount due upon the mortgage, such account must not only be seasonably rendered, but must be a just and true account, otherwise the mortgager may bring his bill in equity to redeem, or file his petition to have the amount justly due determined at the Trial Term of the Supreme Judicial Court, at his election.</p> <p>Where an account rendered by a mortgagee contains certain items that are just and true, with others that are incorrect and unjust, the mortgager may tender the amount justly due, and rely upon his tender, but he is not compelled so to do, but may file his bill or petition, in order to have the true amount determined.</p> <p>An error in the footing of such an account where all the items are given, and the computation is plain, and the mistake so evident that no one in the exercise of ordinary care could be misled by it, will not vitiate the account.</p> <p>An action at law can be maintained by one partner against another partner in the same firm, upon an express promise made before the commencement of the partnership, in respect to advances to be made, or a common stock to be created, or a certain sum of money, or amount of property, agreed to be furnished by each in his individual capacity to constitute the capital of the company, for the carrying on of the business of the partnership.</p> <p>Where an account has been rendered by the mortgagee or person having his interest, to the mortgager or person having his interest, and said account contains items which are incorrect and improper, and the mortgager brings his bill or petition, he will be entitled to his costs against such mortgagee or person holding his rights.</p>

Assumpsit brought by the plaintiffs, a corporation in this State, transacting business at Newmarket in said County, to recover four thousand dollars, money had and received. The writ was dated July 11, 1863.

Assumpsit for the labor of plaintiff as a joiner. The defendant filed his set-off, one item of which was for several days work done by one R. Adams, a joiner. The case was referred to an auditor, who found a balance due defendant.

<p>A specific bequest of particular articles of personal property, which perish in the using, such as corn, wine, hay, &c., to one person for life, with remainder over, vests the whole property and title in such articles in the tenant for life, provided he live to consume them.</p> <p>But if the tenant for life should die before these specific articles are consumed,whatever should remain unconsumed at his decease would go to the remainder-man and not to the heirs of the tenant for life.</p> <p>When there is a specific bequest to one for life, with remainder over, of particular articles o^ personal property, which do not perish with the using, but are only liable to be worn ouf and deteriorate in value, such as household furniture and farming utensils, then the tenant for life only takes the use, and the remainder-man has a good title in reversion.</p> <p>In such a case, the tenant for life will be entitled to the possession and use of the specified property, and he will not be required to give any security for the property to the remainder man, but will only be required to file an inventory of the property for the benefit of the reversioner.</p> <p>But, in a case of that kind, the remainder-man may have a remedy in equity to prevent any wanton waste or destruction of such property, or to prevent its fraudulent concealment or removal.</p> <p>Where a bequest of personal property is not specific, but is a general gift of all the testator’s property, or of the residue of it all, generally to one person for life, with remainder over, and when such general bequest includes perishable property, the object of the testator can only be effected by con verting such perishable property into permanent securities, and giving each person in succession the dividends or interest of the fund.</p> <p>This is the general rule applicable to such cases of general or residuary bequests of all a testator’s property, and it will be applied in all cases, unless there can be gathered from the will some expression of intention, on the part of the testator, that the property is to be enjoyed in specie; which intention, it is incumbent on those contesting the application to the rule to point out; and the mere absence of any direction to convert the property, will not be sufficient.</p> <p>A bequest or devise of real estate for life, with remainder over, is always to be treated as a specific devise, of which the tenant for life is to have the possession, use, and income during life; and it makes no difference whether such a devise is, in form, specific or general or residuary.</p> <p>But there is nothing in the fact that real and personal estate are bequeathed together, at the same time, and in the same general or residuary bequest, that tends to show that the testator intended that the personal property, or any part of it, should be enjoyed in specie by the tenant for life.</p> <p>Where a testator, after some specific bequests, makes a general residuary bequest of all his property to one for life,with remainder over, and his estate consisted of lands,cash on hand, stocks in various corporations, notes, and shipping, held that the shipping should be converted into money by the executors, and the avails, with the cash on hand, invested in permanent securities, so that the income to the tenant for life and the remainder-man may be equal by the year.</p> <p>In such a case, where it appeared that the whole amount of shipping, as appraised, was some $30,000, and that the profits or income of the same, for eighteen months during the settlement of the estate, had been some $18,000, or about 40 per cent, per annum, AeMthat the tenant for life was not entitled to all his income or profit, but that the same was, together with the avails of the shipping when sold, to be treated as capital, and invested, after paying the tenant for life a reasonable amount, as interest on said sum during the process of administration.</p> <p>And so, a personal annuity, not to commence in enjoyment for twenty years from the death of the testator, should, for the sake of the tenant for life, be converted into a present interest, in order to yield an immediate income, so that the interest of the tenant for life and the remainder-man may be equal by the year.</p> <p>When a residuary bequest is made to one, “subject to” the payment of a certain annuity to another for life, it is equivalent to charging that annuity upon the property bequeathed for the life of the annuitant; and, before the property should be delivered to the legatee,enough of the property should be set aside and invested by the executor, so that its income will be sufficient to pay the annuity, or the legatee should give the executor other sufficient security for the payment of the annuity.</p> <p>In case of a residuary bequest of personal property to one for life, with remainder over, in the absence of any other provision, the executors will be held to be trustees, for the purpose of converting all perishable property into money and investing it in permanent securities, so as to equalize the income of the tenant for life and the remainder-man.</p> <p>l?ive per cent, per annum upon the clear residue of principal or capital as finally ascertained, ■will be a reasonable annual interest or income to be paid to the tenant for life, during the process of administration, to be computed from the death of the testator.</p>

<p>Trover, for 100 cords of wood. Plea — the general issue.</p> <p>By agreement of parties, the case was tried by the court, and the following facts were found. The action is brought by a deputy sheriff against a receipter of property attached. The receipt was given Nov. 6, 1857, and is for one hundred cords of wood valued at §300, attached by plaintiff in the suit, Samuel Plumer, Jr. v. John H. Prescott & Samziel Prescott, which was an action of trespass quare clausum, writ dated Nov. 5, 1857, returnable April, 1858. Judgment was rendered April 26,1862 for plaintiff for</p> <p>$18.00 — damages,</p> <p>154.82 — costs,</p> <p>172.82</p> <p>.17 — ex’on.</p> <p>No question was made by defendant in this case as to the issuing and delivery of the execution, and demand'upon him.</p> <p>Samuel Prescott died in Jan. 1858 ; his administrator came in and defended, in the action Plumer v. Prescott & al., Jan. Term, 1861, and thereafter the action was referred to an auditor to assess damages.</p> <p>The execution was against John H. Prescott, and the goods in the hands of the administrator of Samuel Prescott. The wood attached by plaintiff and receipted for by defendant, was the property of John H. Prescott. The defendant never had possession of the wood, and by his consent it was disposed of by John H. Prescott.</p> <p>The defendant claimed that the action,Plumer v. Prescott & a., did not survive against Samuel Prescott or his administrator, and that consequently this action could not be maintained.</p>

This is a bill in equity, brought by the only surviving child of the late Joshua Deverson, joined with her husband, against the Rockingham Bank and the children of a deceased son of the said Joshua, Joshua Deverson, jr.; and the cause is heard upon the bill and answer. The case, which also appears in 44 N. H. 567, is sufficiently stated in the opinion of the Court.

This was an action of debt upon an order or judgment of the Court of Common Pleas, charging the defendant, as the father of a bastard child, with certain sums for its -expenses and maintenance. There is also in the writ a count for §200, for food, drink, Avashing, lodging, medicines, medical attendance, care, and expenses, and support of the defendant’s infant child at his request.

<p>In an indictment for illegal voting at a town meeting, it is sufficient to allege that such meeting was duly holden, without stating how, or by what authority, it was warned.</p> <p>Where it is alleged, that town meeting was duly holden for the election of two representatives to the General Court, and that the inhabitants were also “called on to give in their votes for Members of Congress,” &c., it was held, that, in respect to the representatives to Congress, as well as representatives to the General Court, these allegations were to be regarded as descriptive of the purpose for which the meeting was called, and not at a meeting called for another purpose, votes for a member of Congress were called for.</p> <p>The law, requiring six months residence in a town or ward to entitle a person to vote, is valid and constitutional.</p> <p>To establish the fact, that the respondent was not entitled to vote in the ward in question, it may be sufficient to prove the circumstances of his actual residence during the year previous to the election; and the State is not necessarily bound to prove directly where his domicil was before that time, or that it had not been in the ward in question.</p>

<p>Upon an application to take the poor debtor’s oath, if it is alleged by the creditor that the debt- or has certain property not exempt by law, the latter should be required by the magistrates to make an assignment of his interest in such property according to section 5, chap. 200, of the Rev. Stat.</p> <p>Such an assignment should be required although the debtor was arrested on au execution against himself and another as partners for a partnership debt, and the property which he is alleged to have had at the time of his arrest, and afterwards, was his individual property.</p> <p>Where the debtor had, after his arrest, by his voluntary act, disabled himself to make the assignment required by statute, held that this was equivalent to a refusal by him to make such an assignment.</p> <p>Where a debtor, upon his arrest, had given a bond with a condition, that he should within one year apply to the proper authority and be admitted to take, and actually take, the oath prescribed by law for the relief of poor debtors, or in default thereof surrender himself to prison as prescribed by law, and the oath had been administered to him within the year, but in violation of the provisions of the statute and against the objection of the creditor, held that the condition of the bond was not thereby fulfilled.</p>

This was assumpsit upon two promissory notes, made by the defendants, and payable to the plaintiff, or order; and, at the October Term, A. D. 1861, it was tried here and a verdict directed for the plaintiff for $3939.88, upon the evidence reported in the case reserved for the whole court, which may be referred to as part of this case.

Assumpsit upon the following premium note : For value received, in Policy No. 1788, second class, dated the 26 day of July, 1858, issued by the Great Falls Mutual Fire Insurance Company, I promise to… Held: and the plaintiffs excepted. By the records of the company it appeared, that a meeting of the company was held, August 6, 1861, for the choice of directors, pursuant to a notice of July 8 ; that a board of directors was then chosen, all residents of Somersworth.

Assumpsit. The declaration set forth, that, on the 4th day of May, 1858, Caroline D. Hill was owner of ten shares in Pine River Bank, of the value of 100 dollars each, and said hank, on said 4th day of May, &c., issued to her a certificate signed by its president and cashier, reciting that she was owner of said ten shares, numbered from 152 to 161 inclusive, and that said shares were transferable after the holder pays all his liabilities to said bank, by making an assignment…

Debt, on a submission bond, Page being principal, and the other defendants sureties.

All the parties in this ease claim under the following provisions in the will of Caleb M. Whitney, to wit: I further give and devise to my two sisters, Margaret Ann Whitney and Mary Elizabeth Whitney, and my two brothers, William Whitney and Charles Whitney, all my real estate ip Tuftonborough, in the County of Strafford, to have and to hold the same to them, the said Margaret Ann, Mary Elizabeth, William and Charles Whitney, their heirs and assigns forever.

Trover, for 50 cords of pine saplings of the value of $200, and 40,-000 feet of pine logs valued at $300. Upon the general issue it appeared that the timber in question grew on land, owned in 1856 by S. Holbrook, since deceased, and the-defendant, and by the defendant alone since 1860. On the first of October, 1856,.the defendant and S. Holbrook made a conveyance of this timber to A. H.. Conant.

<p>Assumpsit. April 10, 1849, the plaintiff, being indebted to the defendant, conveyed to him a farm situated in Westminster, Vt., and upon which the plaintiff then lived. The deed was written, executed, delivered and recorded in Vermont. April 1, 1859, the defendant sold the farm to a third person, and received for it a sum larger than the amount of his claims against the plaintiff, April 10,1849, and interest thereon to April 1, 1859, and all claims which defendant had against the plaintiff April 1, 1859. The plaintiff claimed to recover the balance of the price which the defendant received for the farm, over and above the amount of his claims against the plaintiff.</p> <p>The defendant claimed, and introduced evidence tending to show,that the plaintiff conveyed the farm to the defendant with the intent to defraud creditors. Subject to the defendant’s exception, the plaintiff was allowed to testify that he had no such intent.</p> <p>There was evidence tending to show, that, at the time of the conveyance from the plaintiff to the defendant, it was understood and verbally agreed by them, that the defendant should reconvey the farm to the plaintiff on request, or, if he sold it, that he would account to the plaintiff for the proceeds, and pay the plaintiff the' balance over and above his claims against the plaintiff. The defendant requested the court to instruct the jury that such an agreement would be a trust which could not be created unless by an instrument in writing signed by the party creating the same or by his attorney. The court declined so to instruct the jury, but did instruct them that such an agreement, not in writing, would, aside from any question of fraud, entitle the plaintiff to recover. The value of the farm was a material fact. The court ruled that one of defendant’s witnesses, who was proved to the satisfaction of the court to have full and special knowledge of the extent, quality, situation, condition and value of the farm and of all other land in the same town, and to be an expert upon the question of the value of farms, might testify to his opinion of the value of the farm in question, to which ruling plaintiff excepted.</p> <p>The defendant excepted to the instructions given and to the refusal to give those requested, and moved to set aside the verdict which was for the plaintiff, and the questions of law were reserved.</p>

<p>The principal defendants having been defaulted, the plaintiff elected to try the question of the liability of the trustee by the jury. For the purpose of raising certain questions of law in this case and for no other, it was agreed, that,- on the 16th of May, 1861, the principal defendants at Keene, where they resided and were in business as partners, made a general assignment to the trustee of all the firm property, for the payment therewith, after deducting the reasonable expenses of the trust, of all the copartnership creditors in equal proportions' to their respective debts; and each, of all his individual property for the payment therewith, after deducting the reasonable expenses of the trust, of their respective individual creditors in equal proportion to their respective debts, and for the payment, with the residues, if any there should be, of the copartnership creditors in equal proportions to their respective debts. This assignment was duly executed according to the laws of this State and was recorded in the Cheshire County Registry of Deeds and also in the office of the Town Clerk of Rockingham in Windham County in Vermont, and may be referred to as part of this case. By virtue of this assignment the trustee took possession of the property assigned, including certain real estate in said Rockingham, which was the individual property of said Buss; but he has not filed in the office of the Clerk of said Windham County any copy of the assignment, or inventory of the property assigned, or list of the creditors to be benefited by the assignment; nor has he executed any bond to the Probate Court for said Windham County. On the 27th of October 1861, Shelly & Sawyer of Keene, creditors of said copartnership, commenced an action in Vermont against the principal defendants and attached the real estate of Buss in said Rockingham. At the time of such attachment and before, Shelly & Sawyer knew of the assignment. Act No. 18 of 1852, Act No. 12 of 1855, and Act No. 11 of 1857, of the Pamphlet Laws of Vermont, and all other statutes of that State relating to assignments may be referred to as parts of this case. At the time of the assignment and before, the trustee held and still holds a mortgage of real estate of the principal defendants in Keene, given by them to secure a debt due to him from the firm, and at the time of the assignment the condition of the mortgage had been broken. The plaintiff is a creditor of the copartnership and his debt accrued prior to the assignment. The trustee process was served on said Pond, June 3, 1861.</p> <p>For the purpose of raising the question of law in this case, the court ruled pro forma that the assignment was invalid against the plaintiff, and that the trustee was chargeable for the personal property and the proceeds of the real estate received by him by virtue of said assignment, after deducting the debts due him from Buss & Woodward, but without deducting the debts due other creditors of Buss & Woodward, who had assented to the assignment before service upon the trustee, or the necessary expenses of the trustee as assignee; to which the trustee excepted. And thereupon by consent of parties the cause was taken from the jury for the settlement of the questions of law arising; and after the same are determined, the cause is to stand for trial by the jury without prejudice to either party from any statement of fact in this case, if either party so elect; otherwise the trustee is to be discharged or charged at the trial terna as the opinion of the court shall be upon the foregoing case; and if the trustee is charged the amount for which he is chargeable is to be determined by the jury, unless the parties otherwise agree.</p> <p>And the questions of law arising upon the case were reserved for the ' determination of the whole court.</p>

This is a bill in equity brought to set aside a conveyance of plaintiffs interest in the meeting-house lot of the defendant in Keene, together with certain strips of land in addition thereto. • The relief is sought upon the ground that two of those strips of land were included in the deed by fraud, accident or mistake, and also upon the ground that the deed was never delivered.

By agreement of parties tbe facts in these cases were found by the court, and the questions of law were reserved. Harvey W. Cooper v. George W. Newman. The first action was trover, for a yoke of oxen, and the writ was dated March 27, 1862.

<p>A married woman, owning a right of dower in her husband’s lands, may properly convey it, and take a promissory note therefor payable to herself, equal to the value of such estate. Such promissory note will be protected from her husband’s creditors.</p> <p>So, a married woman, owning in her own right a promissory note, secured by mortgage upon the husband’s estate, may sell and release such interest in said estate, and take a new note payable to herself. The transaction, being executed with the assent of the husband, and in good faith, cannot be impeached, and no advantage can accrue to the husband’s creditors by the use of the trustee process. Until the husband shall exercise his marital right of reducing such promissory note to his possession, the creditor is not entitled to exercise it.</p>

<p>The use of a deposition on a former trial without objection is considered as a waiver of all merely technical objections, whether to the deposition itself or the caption.</p> <p>Where there is evidence tending to show the admission by an agent of a material fact, and a question is raised as to the agent’s authority to make the admission, if there is any evidence tending to show such authority, the whole question may be properly submitted to the jury with instructions to find first whether the agent was acting within the scope of his authority in making the admission, and, if so, to weigh the admission thus made against his principal, otherwise to lay it out of the case.</p> <p>The declarations, not under oath, of disinterested men having means of knowledge and since deceased, on questions of monuments and boundaries of land, are competent as evidence of reputation; but such declarations in relation to acts of ownership or of possession of land, are not admissible, because such facts cannot be proved by reputation.</p> <p>“A bog” or “boggy ground” maybe so situated and surrounded as tobe a good natural monument, so that a line running from a given monument by the southerly side of the boggy ground on the premises, to another given monument, would be well located and defined. But the nature of the soil may be such that it would be difficult to determine where the boggy land terminated, and the land not boggy commenced.</p> <p>Hence, when a defendant in a writ of entry disclaims all north of a certain line, and pleads the general issue as to all south of it, and describes his line as commencing at a stake, &c., thence running westerly by the southerly side of the boggy ground on said premises to a stake, &c., the plea will not be bad on demurrer, because, for aught that appears in the plea, the line may be definitely located and fixed by such description.</p> <p>But, upon proof that the southerly side of such boggy ground is a point in dispute, and not easily ascertainable with certainty, then upon motion the plea will be rejected and the defendant will be compelled to describe his line by some fixed, and definite and visible monument; he will be compelled to set a stake at the place where he claims the southerly side of the boggy ground to be, and he must hold up to that line or lose his case.</p> <p>In such an action the defendant’s plea should so describe the line to which he claims, that, if the jury find for the defendant, their verdict may follow the words of the plea in describing the line, and yet establish a definite and certain boundary line.</p>

Writ dated May 5, 1863. Assumpsit on the promissory note of defendant dated Aug. 28, A. D. 1861, for $660.25 payable to Paul J. Wheeler or order, on demand with interest annually, on which were sundry indorsements, viz : Oct. 14, 1861, rec’d $256.00.” April 15,1862, rec’d $152.00 by notes collected.” Both above indorsements were in hand-writing of Paul J. Wheeler.

This is Debt upon a replevin bond to the plaintiff, the sheriff of Sullivan county. The defendant craved oyer of the condition, by which it appeared that the obligors had brought a writ of replevin, returnable in the county of Hillsborough, at the February Term, 1858, of the Court of Common Pleas, for goods alleged to be of the obligors, and which were wrongfully detained in the county of Sullivan.

<p>This is a bill in equity by Benjamin F. Leach against Samuel Noyes and Lucy E. Noyes, his wife, alleging: That, on the first day of September, A. D. 1855, the said Lucy and one Lorenzo Currier being desirous of purchasing of Horace A. Stickney a tract of land in Enfield upon which the plaintiff held a mortgage made by the said Stickney to secure the payment of his promissory notes to the plaintiff for about $500,00, it was agreed between the plaintiff, the said Lucy and Currier and the said Stickney, that the latter should convey the whole tract to said Lucy, who should convey a portion thereof to said Currier, and that the plaintiff should surrender up his said promissory notes to said Stickney, and that said Lucy should mortgage her remaining part of said land to the plaintiff to secure a part of said claim of $500,00, and that Currier should mortgage the parcel so conveyed to him to secure the rest of said claim: That said conveyances were accordingly made on said first day of September, 1855; but by accident or mistake the deed from Stickney to said Lucy was made in common form, and not to her sole and separate use and free from the control and interference of her husband : That the said Lucy on the same day gave to the plaintiff a mortgage as she had agreed of a part of said land to secure the plaintiff for her part of the purchase money (said plaintiff having paid as aforesaid the said Horace for said land,) being $175,00; and the plaintiff supposed the said mortgage and the notes given by said Lucy to be good and valid and he accordingly gave up to said Stickney the notes he so held against him and took the notes of said Lucy, and the said C.urrier in lieu thereof: That said Currier has since paid his said notes and the said Lucy has paid one of her notes of $100,00, but the other of $75,-00, although often requested the said Lucy has refused to pay; and both of said defendants have denied the validity of said note and mortgage and have refused to rectify said mortgage and give the plaintiff a good and valid mortgage; claiming that they are void as the note and mortgage of a married woman.</p> <p>The bill prays that the defendants may be decreed to give to the plaintiffs good and valid note and mortgage, or a deed of said piece of land ; and also prays for general relief.</p> <p>The answer of Lucy E. Noyes admits the purchase by her in her own right of the land in question, and the sale by her of a part of it to Currier ; that the plaintiff then held a mortgage of the land from Stickney to secure a debt originally due plaintiff from one Fifield, not arising in any way from the purchase money of said premises; that plaintiff and said Stickney agreed between themselves that plaintiff should release his debt to Stickney, and take separate notes from the defendant and said Currier to the same amount in payment therefor, to be secured by mortgages of the parcels held by them respectively, to which the said Lucy and Currier assented, and notes and mortgages were executed accordingly; that the said Lucy executed her papers in good faith, following their directions as to the kind and form of papers necessary, and if her note and mortgage were invalid in law, as she is advised they were, 'it was from no fault of hers, but arose from the plaintiff’s misapprehension of his legal rights under his contracts, for which this defendant denies that she is responsible. The said Lucy also denies any demand upon her for the money alleged to be so due to the plaintiff, or that she has refused to pay any money that may be due from her to him, and also claims that plaintiff is not entitled to demand, nor can she give, a better mortgage than the one already given unless the deed from Stickney to her is also changed or reformed.</p> <p>The answer of Samuel Noyes admits that he understood that his wife made the purchase as stated by her; that the plaintiff held a mortgage which was released, and the mortgages of his wife and the said Currier substituted, all as stated by her; that, to all these proceedings, the said Samuel was in no wise a party; that the papers were made by the parties to said deeds and mortgages in such manner as to be satisfactory to the plaintiff and all parties at the time; that the defendant Samuel regarded all said transactions as a spectator, excepting so far only as he felt interested for his wife who was doing the business on her own account; that neither the plaintiff nor any other of the parties solicited his advice as to how the papers should be made, nor did he give them any such advice; and that, if Stickney did not give a proper deed to the said Lucy, or the plaintiff did not receive a valid note and mortgage as he ought, the defendant Samuel denies that he was in any way a party thereto or is responsible therefor. He also denies all knowledge of any demand upon himself or the said Lucy for the money alleged to be due, or any refusal to pay any money which may be due from her to him.</p> <p>The defendant also alleges the recovery of a judgment against him and his wife by one Woodbury,and the issue of an execution thereon and levy upon real estate, and upon a demand of a homestead by this defendant the officer set out the tract of land so conveyed and held by his wife, as such homestead, setting it out as if not encumbered by said mortgage to the plaintiff; although this defendant requested the officer to set it out subject to said mortgage, and this defendant claims that he should not be compelled to part with said homestead.</p> <p>* At the December Term 1863, the parties entered into an agreement to the effect that the statements in the bill and answers are to be taken to be true, except so far as modified by the agreement. As to a demand it is therein agreed, that, after the bill was filed, and on the day of the service upon the said Lucy, the plaintiff’s attorney called upon her for a new mortgage which she declined to give on the ground that she had given all the title she had; and that, before the commencement of this suit, the plaintiff’s attorney called upon the defendant Samuel Noyes, and asked him to pay the debt, or join with his wife in a new mortgage, both of which he declined to do, on the ground that he had nothing to do with the matter, but that no other request to pay, or make a new mortgage was made. It is also agreed that the defendants live on a farm worth $1500, in which the said Lucy has a life estate, and that the land in question, so set off as part of the homestead, is outside of the farm in which said Lucy has a life-estate, but adjoining the same and used in connection with it as mowing land and pasturing, but has no buildings thereon.</p> <p>And the case is submitted upon the statements in the bill and answers as modified by the agreement.</p>

<p>Where, after the charter, and before the organization, of a corporation, services are rendered Which are necessary to complete that organization, and, after it has been perfected, the corporation elects to take the benefit of such services, knowing that they were rendered with the understanding that compensation was to be made, it will be held liable to pay for the services upon the ground that it must take the burthen with the benefit.</p> <p>Held also that a suit at law will lie to recover such compensation; but that no promise to pay would be implied from the fact that such services were rendered at the request of any number of the grantees less than a majority.</p> <p>Held also that the sole power of determining by what measures and by what agency such organization shall be effected, rests in the body of the grantees, a majority of whose votes must govern.</p> <p>Where the value of the plaintiff’s 'services in obtaining subscriptions to the capital stock and arousing public attention to the enterprise, was drawn in question, held that correspondence between him and others interested in the subject, was admissible as bearing upon the extent of his services, and also that evidence of his having previously conducted successfully business requiring qualifications similar to such as would be needed for the business in question was admissible.</p> <p>Held also that parol evidence that subscriptions to stock to a large amount were solicited and obtained by him was admissible, there being no controversy that such subscriptions were made.</p> <p>Evidence of the statement of the president of the corporation that the plaintiff ought to be paid for his services if any one was paid, is not admissible without showing some authority beyond the mere fact of his holding that office.</p> <p>The value of horses is not a question of science, trade or skill, in this State, and, therefore, the opinion of one acquainted with the price of such property is not admissible.</p>

Trespass, for taking and carrying away one buggy wagon, one buffalo robe, and other articles of the value of $50, property of the plaintiff, and converting them to the use of the… Held: a moderator chosen and sworn, and it was voted to adjourn to October 25, at one p. m., at the same place, to consider whether the districts are legally united. The district met according to adjournment and voted to adjourn to the 18th of January, 1861, at six p. m., for further consideration.

<p>When, upon investigation before the whole court, at their law term, an error has been found in the proceedings of the county road commissioners, it is in the discretion of the court to recommit their report directly to the same board of commissioners for correction, instead of sending it to the court from which it first emanated.</p> <p>Notices to the selectmen and land holders are, in the first instance, under the supervision of the commissioners, and if insufficient in any material respect, this court will see that no one is injured in his rights.</p>

<p>In the original action, which was assumpsit upon a promissory note, Hill sued Smith, who being without the jurisdiction, his real estate was attached and the action was continued for notice, and at the next term judgment was rendered for Hill, the then plaintiff, for the amount of said note and interest, as upon default. J. Clark, Esq., was Hill’s attorney. Smith afterwards obtained leave to review and brought this action, which was duly entered, and said Clark entered a general appearance upon the docket for defendant Hill, and the cause was continued. No notice was ever given upon the docket or otherwise in the original action that any other person than Hill was interested as plaintiff. When Smith sued out his writ of review he had it served upon said Clark, as Hill resided out of the State, and also upon one Enoch Cass. Sutsaid Cass’ name was never entered upon the docket, nor was there anything upon the records of this court showing that he had any interest in the suit. And now at this term the plaintiff in review is ready to try the cause by jury, but Mr. Clark suggests that said Cass is dead, and that he was, when living, a party in interest, and moves that the action be dismissed unless the administrator of said Cass will appear. Said administrator did not appear or offer to do so, and the court denied the motion to dismiss, and the defendant excepted.</p> <p>Whereupon it was agreed by the parties that a verdict be taken by consent for the plaintiff in error, and the questions of law arising on the case be reserved for consideration at the Law Term.</p> <p>Ordered that the questions of law arising upon the foregoing case be reserved and assigned to the Law Term.</p>

Assumpsit on the following written contract: On or before the 1st day of March next, for value received, I promise to pay Samuel W. Hale, or bearer, 12,000 feet of merchantable clapboards to be delivered at Fairlee Depot, Vt., to' be inspected by inspector in Dalton, N. H. JOSEPH P. TAYLOE.” Orford, N. H. Sep. 10, 1858. Between nine and ten thousand feet of clapboards, partly merchantable and partly better than merchantable, were sent by the defendant to Fairlee Depot.

<p>"Where tlio jury agreed, that, to fix the amount of the plaintiff’s damages, each juror should mark a sum, and that half of the aggregate of the highest and the lowest sums, which should be marked, should be taken for such damages, and made up and returned their verdict according to this agreement and without any further deliberation, — held that the verdict should he set aside.</p>

<p>It appeared that Parker Cushman on one side and John Wooster and Theodore Wooster upon the other, had a controversy, that there was a civil suit and a prosecution for assault and battery on each side, and that the parties entered into an agreement in writing to submit all these matters and all costs in all suits and prosecutions to the determination of Hon. Abel Underwood. They agreed upon a time and place of hearing, and that the report of said referee be made as soon as may be to the Supreme Judicial Court, &c., and that judgment entered thereon should be final.</p> <p>Said referee reported to said court, that he had heard the parties, and dismissed the complaints on each side, allowing no costs to either; that the civil suit, John Wooster v. Parker Cushman, be discontinued without costs, and that said Cushman,in his suit against both the Woosters, receive damages in the sum of §65.00, with costs of reference, &G.</p> <p>The referee further reports as follows :</p> <p>"Upon the hearing of said matters in controversy (which were embraced in said two suits), said Cushman’s counsel offered in evidence the two depositions, herewith returned, of T. B. Dyke and Emily J. Dyke, to which said Wooster’s counsel objected, for reasons assigned in his exceptions hereto annexed. It appeared the magistrate who took the depositions, not being a ready penman, ealled in a third person to write the answers of the witnesses, being an indifferent person, who did write them, the magistrate being present, supervising.</p> <p>As to notice to the adverse party, it appeared that the copy of notice was not annexed to the certificate of taking by any adhesive matter, but the caption, copy of notice, and depositions were folded together, and returned by the magistrate in the sealed yellow envelope herewith returned. Said caption, copy and depositions are annexed. The referee overruled said objections, and received the depositions.”</p> <p>To the admission of the depositions of Taylor B. Dyke and Emily J. Dyke, the defendants excepted in the following words :</p> <p>"1st. That it was admitted by the counsel who attended the caption on the part of the said Cushman that the answers were not written by the magistrate who purported to have taken the depositions.”</p> <p>"2nd. It does not appear by the caption how the adverse party was notified; it does not refer to any notice, and no notice is annexed, and the adverse party was not present.”</p> <p>Annexed to the report was the following affidavit, duly subscribed and sworn to:</p> <p>"I, A. Underwood, depose and say that I was referee in case of Parker Cushman v. John Wooster and Theodore Wooster, and made my report, returnable to the March Term of the Supreme Judicial Court, Grafton County, N. H. 1864. I decided the case upon the facts by me reported, according to law, as I understood it, and presented the facts in my report, with my ruling thereon, under the expectation that the court would review the questions there decided, and sustain or set aside the report, as they might consider the questions of law decided by me right or wrong.</p> <p>I further say, the questions of law, decided by me, were presented and argued by counsel before me, and decided by me at the hearing, according to my best judgment of the law.”</p> <p>Other questions as to the admissibility of testimony were raised, which are not important to be considered. ' The questions thus arising were reserved for the consideration of the whole court.</p>

Assumpsit. Plaintiffs specification contained a promissory note for $48.60, and an account of $115.00, composed of some six items; and also contained a credit of four items, amounting to $35.00.

Trover for two harnesses, two horses and the halters. It appeared that D. H. & J. B. Sumner & Co., having a just claim against one Smith Barnett, brought a suit against him, and attached said property; that examiners were appointed at the request of plaintiffs, who made them certificate, and the officer proceeded to sell said property on the writ, at which sale this plaintiff was the purchaser of all said property, and took possession of the same; that while said property…

At the hearing before the auditor, who was appointed October Term, 1859, the plaintiff offered depositions taken at Boston, on the 23d and 24th day of April, 1863, to be used at the April term of said court to have been holden on the 28th of said April. There having been no appearance at the caption by defendants, they objected to the admissibility of said depositions under the 20th rule of court. The depositions were in fact taken to be used before the auditor.

Case for deceit in the sale of a lot of land described as lot No. 66 in Dummer, by the defendant to the plaintiff; the declaration,which was made part of the case, alleging false and fraudulent representations by the defendant that the true lines of the lot were so situated as to include two parcels of land, which in fact were not part of the lot. The deed given by Horn to plaintiff conveyed lot numbered 66 in said Dummer, containing one hundred acres more or less.

<p>The mere faet’df insanity without more, is not a sufficient ground for a decree of nullity of marriage.</p> <p>To disable one to contract, the disease must be of such a nature or of such severity, that the person is incapable of exercising a rational judgment on the subject in question.</p> <p>A person actually insane may acquire a home in the place of her actual residence, if she has sufficient capacity to choose her residence.</p> <p>A woman insane at the time of her marriage and afterwards, and whose marriage is decreed to be null for that cause, may gain a settlement b.y her residence in the house of her husband, if she has sufficient property, and intellect sufficient to choose a home.</p>

These cases were tried together by the court, by agreement of the parties. The first is assumpsit on a promissory note, dated April 6, 1861, for $8,716.47, payable to the plaintiff, as deputy sheriff, or order, on demand, with interest, at any bank in Concord. Endorsed May 17,1862, Received $6,935.98 ; April 15, 1862, Received $1,110. Endorsed C. B. Haynes, D. S. Calvin Howe is the party in interest.

Assumpsit upon a promissory note, given by the city of Concord, dated December 4th, 1861, payable to the plaintiff, on demand,with interest annually. The defendants plead, that, on the 29th day of January, 1863, they tendered to the plaintiff the amount of said note and interest, to wit, &c., which the plaintiff declined to accept, and they bring the same into court, &c. On this plea issue is joined, and,by agreement of parties, the case is tried by the court.

Tins is an appeal from the decree of the Judge of Probate of Hills-borough county, approving the will of Paul R. George, late of Hopkinton, in the county of Merrimack, deceased, and whose domicil was there at the time of his death.

<p>Where all the heirs beneficially interested in the estate of a deceased person, being of age and otherwise capable, agree upon a board of arbitrators to adjust for themselves the affairs of the estate, and the arbitrators hear the parties in relation to all matters in dispute, and make their award in the premises, and the parties proceed to settle among themselves according to the terms of said award, a court of equity .will not go behind the award or open the accounts examined by the arbitrators, unless in cases of manifest mistake, fraud or misconduct of the arbitrators, or some party to the settlement.</p> <p>Generally, a court of equity will not open an account by their decree, after six years of delay unaccounted for.</p>

<p>Trespass, for assault and battery and false imprisonment.</p> <p>Flea, the general issue, with a brief statement, in substance tbat the defendant, being a deputy sheriff of this county, on the 12th day of October, 1861, by virtue of a warrant, issued by John Y. Mugridge, a justice of the peace for the county of Merrimack, on a complaint against the plaintiff for an assault and battery on one Philbrick, placed in his hands for service, properly arrested the plaintiff, and earned him before Stephen C. Badger, another justice of the peace for said county, at his office in Concord, for trial ,• where the plaintiff was arraigned and pleaded not guilty, and upon his motion his case was continued to Franklin, in said county, for a hearing on the 21st day of said October, when and where the case was again continued to October 26th, at Concord, and then again continued to November 9, 1861, at said Concord, when and where the plaintiff not appearing, but avoiding and escaping, the defendant by order of said justice, properly arrested the plaintiff and brought him before said justice, by whom he was tried and- convicted.</p> <p>On the trial, the evidence tended to prove, that the said Justices Mug-ridge and Badger were residents of the city of Concord, and the said warrant required the officers to whom the same was directed, to carry the plaintiff before said Justice Mugridge, or some other justice of the j>eace for said county, for trial; that the warrant was issued and the plaintiff arrested on the 12th of October, as alleged by the defendant; and that on the same day the defendant carried the plaintiff before said Justice Badger, and made his return upon the warrant, and left the same with said justice; that the ■ proceedings alleged in said brief statement were had before said justice, up to the adjournment to the 9th of November at said Concord; that on that day the defendant neglected to appear at the time and place of adjournment, and the said justice delivered the said warrant to said defendant and verbally ordered him as such deputy sheriff to bring the plaintiff before him, and the defendant thereupon arrested the plaintiff, and carried him before said justice.</p> <p>The court instructed the jury,in substance, that the warrant being regular inform, and issued by a magistrate having jurisdiction of the subject matter, protected the defendant for the original arrest, and the return of the defendant before Justice Badger; but that, although if Justice Badger had had jurisdiction to try the plaintiff, his verbal order to the defendant to bring the plaintiff before him on the 9th of November, would have justified the defendant in arresting the plaintiff for that purpose, yet that Justice Badger, being prohibited by the charter of the city of Concord from exercising jurisdiction in the case, (although he assumed jurisdiction, and did try and convict the plaintiff,) his order to the defendant to bring the plaintiff before him for trial was no protection for the defendant in making the last arrest in accordance with it.</p> <p>' The plaintiff was shown by the record to have been committed to jail on the 11th day of November, 1861, by Carr B. Haynes, deputy sheriff for this county, upon a mittimus, dated November 9th, 1861, and issued on the 11th day of said November, 1861, by said Justice Badger, to carry into effect Ms judgment against the plaintiff on the original complairit; and he claimed damages for Ms arrest upon his mittimus, Ms imprisonment in jail, the expenses of his release therefrom upon habeas corpus, and an alleged loss of health consequent upon his confinement in the jail; and offered evidence tending to show, that, on the 9th of November, 1861, after the plaintiff’s conviction before Justice Badger, the defendant took the plaintiff into the street, and seeing Mr. Haynes, requested him to take the plaintiff in charge, and he then left for Ms home, and had personally notMng further to do with the plaintiff.</p> <p>The court instructed the jury, in substance, that if they found from the evidence that the defendant requested Mr. Haynes to take charge of the plaintiff and that Haynes did what he did as the agent of the defendant, then the defendant was responsible for the subsequent arrest and commitment to jail on the mittimus, and the consequences of that imprisonment.</p> <p>To these instructions of the court the defendant excepted.</p> <p>The jury returned a verdict for the plaintiff, and the defendant moved that the same be set aside, and for a new trial, by reason of said exceptions.</p> <p>And thereupon the questions arising in the case were reserved for decision at the Law Term.</p>

Indictment for keeping a disorderly house. No evidence was offered as to the reputation of the house. Jonathan L. Pickering testified, subject to the defendant’s exception, that he visited the defendant’s house, in his official capacity as city marshal, on sundry occasions, by request.

Assumpsit to recover the balance clue upon a promissory note of which the following is a copy: $107. Newport, December 8, 1854. For value received, I promise to pay Amasa Edes, or order, onehundred and seven dollars, one-lialf in one year, and the remainder in two years from date, with interest annually,” (Signed,) SAMUEL E. GEORGE.

<p>Assumpsit on a note for §75, dated Oct. 6, 1860, signed by the defendants, payable to Henry T. Nichols, or order, in ninety days, and endorsed by him. On the note two payments were endorsed of $15 and $10. It was admitted that the note was open to any defence, that would have availed against the original payee. The defendants introduced evidence tending to show that the defendant, Dexter L. Hunton, early in April, 1860, bought a horse of Henry T. Nichols; that said Nichols, at the time of the sale, made material and false representations concerning the soundness and quality of the horse; as an inducement to the bargainee said the horse was sound, kind, and adapted to the business in which said Dexter proposed to use him, and if he was not so, said Henry T. Nichols would make it all right and take the horse back. In fact, the horse was not sound, not kind, and not adapted to said Dexter’s business ; and said Henry knew his statements to be false when he made them. At the time of the sale, the defendants gave their note to said Henry for $125, the price of the horse. Said Dexter took the horse and used him a portion of the time for about seven weeks, in a job wagon; at various times he complained to Henry that the horse was not as represented by him, and requested him to take him back,but said Henry, on various pretexts, put him off and did not take the horse back, though he admitted, he ought to take him back, and said he would make it all right and Dexter should lose nothing. All the parties lived at Manchester, and Henry kept a livery stable there. Said Dexter had called at said stable after he bought the horse, having the horse with him. After said seven weeks, Dexter kept the horse at pasture till the date of this note, and then sold the horse to his father in Auburn, for $50, paid said $50 to Henry, took up the first note and gave the note in suit in lieu of it. Whpn this note was given, both defendants were present, and the defendant, Robert L. Hunton, told Henry he ought to throw off something. Henry said he wanted the money to use, and if defendants would give the note for $75, and fifty dollars in money, he would make it all right, when he found out how much would be lost on the horse, and that Dexter should lose nothing.</p> <p>The defendant, in addition to other positions, claimed that there was evidence, from which the jury might find that there was a failure of consideration to a greater amount than the amount now due upon the note in suit.</p> <p>The court ordered a verdict for the plaintiff, and the defendants excepted.</p> <p>The writ was dated Jan. 11, 1862.</p>

Trover for a cow; plea, the general issue. The parties agree upon the following statement of facts : The plaintiff’s cow was taken up by the defendant, at 5 o’clock, P. M., Oct. 4, 1862, doing damage in his buckwheat field, which was not fenced. At the time the defendant took up the cow, he was ready to go to Nashua, 5 miles distant, with milk for his customers there, who were so situated that it required his personal attention there to distribute his milk.

Petition for habeas corpus, addressed originally to Bellows, J.s and by him adjourned into this court.

<p>If tie mortgager and mortgagee write their own names in the body of the affidavit to a mortgage of personal property, this is not a compliance with the statute, which requires that the mortgager and mortgagee shall make and subscribe the affidavit.</p>

¶ Assumpsit. Action tried by the court and the following facts were found: Defendant is, and for five years has been, a resident of Manchester. He enlisted as a private in the 3rd Regiment of N. H. Volunteers, and was discharged from the service, Sept. 27, 1862. While in the service, and up to the first of November, 1863, his family received State aid from the city of Manchester, at the rate of §12.00 per month.

In Equitt. Abigail B. Norris, of Manchester, in said county, widow, complains against George W. Morrison of said Manchester, Esquire, and says, that she is the widow of Moses Norris, late of said Manchester, deceased, by whom she had the following children under the age of twenty-one years, to wit, Henry C. Norris and Mary A. Norris; that her said husband died January 11th, 1855, seized of certain real estate situated in said Manchester, bounded and described as follows, to…

<p>Assumpsit on a promissory note.</p> <p>Plea, statute of limitations.</p> <p>Replication. That the note was secured by a mortgage of personal property.</p> <p>Rejoinder. That all the property included in the mortgagé had been taken upon a prior mortgage or otherwise destroyed, and that the mortgage thereby became inoperative and dead more than six years before the commencement of this suit.</p> <p>Demurrer to the rejoinder.</p> <p>Questions of law reserved.</p>

<p>Writ ok entry, dated May 20,1863, for two tracts of land in Hoi lis, which are particularly described in the writ.</p> <p>Plea, nul disseizin.</p> <p>The plaintiff claimed under a mortgage from Edward Emerson to herself and 45 others, dated Dec. 28, 1860, and recorded at 8 o’clock and 48 minutes in the forenoon of the same day. The mortgage covered 23 separate tracts of land in this county, mostly in Hollis, and included the two tracts demanded, which were described in the mortgage by reference to the deeds under which Emerson derived his title, without other description.</p> <p>The mortgage deed recited that $15,000 had been received from the 46 persons named as grantees, and purported to convey the premises to the same 46 persons, to have and to hold to said grantees, their heirs and assigns, for their own use forever, in the same proportions which the several sums thereinafter mentioned bore to each other.</p> <p>The condition of the mortgage was to pay 37 of the 46 persons named in the deed as grantees, the several sums set down in the condition as payable to them respectively, and among them to pay the plaintiff $370, and also to pay two other persons, not before mentioned in the deed, two several sums set'down as payable to them respectively. The condition provided that these sums should be applied to notes held by said grantees against the mortgagor, and the deed contained no other description of the debts purporting to be secured. Nine of the 46 persons named as grantees, had no debts secured, or mentioned in mortgage. The mortgage deed aforesaid is to be made part of .this case.</p> <p>The plaintiff produced on trial, a note for $370, dated July 10,1858, payable to her or order, on demand, with interest annually, signed by Edward Emerson, on which was an endorsement of $30, under date of January 10, 1860. This note was admitted to be for a just debt, due from Edward Emerson to the plaintiff.</p> <p>To prove the execution and delivery of the mortgage deed, the plaintiff introduced Benjamin E. Emerson as a witness, who testified that Edward Emerson was his brother; that he, the witness, and his son, E. R. Emerson, signed their names as witnesses to the deed; that Edward Emerson signed the deed and acknowledged it before him as a justice of the peace, and left it in his hands and requested him to put it on record for the grantees, and he did so; that, after the deed was recorded, the register returned it to him, and he thought he delivered it over to Leonard Jewett, one of the grantees, but was not positive; that he knew Leonard Jewett had it soon afterwards.</p> <p>On cross examination, Mr. Emerson testified as follows :</p> <p>No one of the grantees was present when the mortgage deed was signed and left with me. On Tuesday, the 25th day of December, 1860, my brother came to me at Nashua, and then, for the first time, spoke of his pecuniary difficulties ; until then, I had supposed he was in good circumstances. He told me he was unable to ¡jay his debts. He said he wished to secure his creditors as far as he could. The plan which was followed for the distribution of his property among his creditors, was devised by Him, not by me. I should have recommended a different course. The mortgage to me was written on Tuesday. On Wednesday, my brother went to Amherst to see where I had signed probate bonds for him. I did not see him on Wednesday. On Tuesday, he inquired of me whether more than one creditor could be secured by one mortgage. He made a mortgage of his household furniture to me, and provided for two or three of his creditors by separate mortgages of real estate. He left a good many notes with me endorsed, to be delivered as collateral security to certain of his creditors, whom he designated. His intention was to include in the arrangement all his property in New England. He made a separate mortgage of his land in Massachusetts, and another of his land in Washington, Sullivan County.</p> <p>He had with him a list of his creditors in a boob, covering two or three pages. He said there were a few small creditors, whom he hoped to provide for in some other way. He directed me to make writs in favor of eight of his creditors whom he named, and have his stock and all his personal property not mortgaged to me attached on the writs. I made the writs accordingly, on Friday, the 28th, and delivered them to the officer for service on Friday or Saturday. I think the attachments were not made till Saturday. The attachments were made according to my brother’s direction. The amount of the debts, sued by his direction, was about $2000.</p> <p>This business was transacted by my brother on the 27th of December, and in the night of that day and before he left on the morning of the 28th. I parted from him that morning about 7 o’clock, and he has not returned to this State since, though he has been in Massachusetts. I am not aware that he carried away with him any property, except money enough for his travelling expenses. No one was present when this business was done by my brother, except me and my son.</p> <p>Edward provided for me, Saunderson, and some others, by separate mortgages; for some of the other creditors, by notes endorsed and left with me; for others, by attachment of his personal property on writs made by me according to his direction; and for the rest, by the general mortgage. There were some small creditors not included, whom he said he hoped to secure some other way.</p> <p>I was absent at Lowell, on Saturday, the 29th of December, and on my return in the evening, I found Thomas Proctor waiting for me at my office. He was acting for Miss Farley, the defendant, and Mrs. Pierce. He wished to obtain security for them. I told him of this mortgage. He said he would have some writs made, take an officer with him to Hollis, and determine, after consultation,whether the writs should be served. I made him writs in favor of Miss Farley and Mrs. Pierce.</p> <p>The mortgage deed to me was written on Tuesday, and those to Saunderson, Ames, and Smith, on Thursday. This mortgage was written on Thursday night. This mortgage deed with some others came back to me from the registry. I cannot tell the exact time. I gave no order to have them returned to me.</p> <p>I afterwards brought several suits for creditors of my brother, which were served by attachment of land covered by this mortgage. I was not able to point out to them any property of my brother, that could be taken for his debts, except what was covered by the mortgages, assignments and attachments,which had been made by him and by his direction, as I have stated. All, I made writs for, were told they were secured in this mortgage.</p> <p>On direct examination resumed, Mr. Emerson testified as follows :</p> <p>I was on my brother’s probate bond to the amount of something like $3,000, and was surety for him on two notes for about $900. I informed Proctor, when he came to me for Miss Earley, of the mortgage, and that I had put it on record.</p> <p>My brother proposed to secure his creditors as far as he could. He intended to prefer in giving the security, first, to those who were his sureties on bonds and notes, Ames, Smith and myself, and also Mr. Saunderson, in preference to others; then to secure certain others by notes and mortgages endorsed over, and by the attachment and mortgage of his personal property; and the rest, by this mortgage in proportion to their debts. He at the same time made a mortgage of his land in Washington to Betsey Jewett. I wrote the mortgage to Betsey Jewett.</p> <p>Joel Hardy, a witness for the plaintiff, testified that he saw this mortgage in her hands in February or March, 1861. No other witness was examined for the plaintiff.</p> <p>It appeared, by the memorandum of the register on his book of records, that this mortgage and several others were delivered out from the registry and sent to Mr. B. F. Emerson, on the 5th of January, 1861, and it was agreed that this memorandum should be received as evidence of that fact.</p> <p>The defendant claimed title under an attachment made on the writ in her suit against Edward Emerson on the 29th day of December, 1860, at 2 minutes past 11 o’clock in the afternoon; a judgment recovered in that suit, September 21, 1861, for $1,712.70 debt, and $13.03 costs, and a levy of the execution issued on that judgment, made on one of the tracts described in the plaintiff’s writ, October 14, 1861, on the other, October 16, 1861. No objection was made to the levy. This judgment was recovered for a note of Edward Emerson, payable to Thomas Proctor or order, and endorsed, on which was due, the sum of $128.68, and for a note of Edward Emerson, payable to the defendant or order, on which was due, the sum of $1684.02 ; and it was admitted that these notes were for just debts, due from Edward Emerson respectively to Proctor and the defendant at the time this mortgage was executed.</p> <p>The cause was taken from the jury by consent, and the questions arising on the foregoing case are reserved for the consideration of the Court at the Law Term thereof.</p>

This is a bill in equity, and the questions arise upon a demurrer to the bill, and the substance of the pleadings sufficiently appears in the opinion of the Court.

Debt, on bond, dated February llfch, 1861, in the penal sum of $500, with the following condition : The condition of this obligation is such, that, whereas an injunction has this day been issued by the Hon. J. E. Sargent, one of the Justices of the Supreme Judicial Court of said State, against said Derry Bank, upon the petition of said Albe C. Heath; now if the said Heath shall pay and satisfy to said Bank, all such damages as may be occasioned to the said Bank by reason of…

<p>Foreign Attachment. The court reserved two questions for the determination of the whole court; other questions upon the same disclosure in the same case have recently been decided at the law term. The former case and the disclosure are made a part of this case, and may be referred to in argument.</p> <p>The trustee was charged for certain notes in his possession signed by other persons and payable to the defendant, and a receiver was appointed. The trustee had in his possession certain mortgages of real estate made by said other persons to the defendant, to secure said notes, and the first question reserved was, whether the trustee should be charged for said mortgages.</p> <p>After the service of said writ on the trustee, he purchased certain notes against the defendant, and, after said purchase, received §104.50, in pursuance of the power of attorney, under which he was acting for said defendant, and redeemed said sums under said power of attorney, and applied the §104.50, by consent of defendant, in part set-off of said notes so purchased.</p>

In Equitt. The bill was brought against Mark N. Spalding, Hiram Fuller and Francis M. Hill, and the town of Hancock, on the 1st day of December, 1863, and it alleged in substance : That on the first day of March, 1863, the plaintiffs were and ever since have been legal voters and tax-payers in said town; that, for the years 1861, 2 and 3, Spalding, Fuller and Hill were the selectmen of the town, and that Spalding was its treasurer for 1862 and 3 ; that, in 1862, at the May…

<p>The payee of a note, part of the consideration of which was the sale of intoxicating liquor in violation of the law of this State, having accepted the note with notice, cannot recover upon it against the maker.</p> <p>Where A., the payee of a note void between himself and B. and C., the makers, for illegality of consideration, surrendered it to B. and D., in whose hands it was equally invalid, held that this was not a sufficient consideration for a note from B. and D. to A.</p> <p>The release by A. of an attachment in a suit brought by him against B. and D. upon their note so given to him, is no sufficient consideration for a promise by D. to A., that “the note should be paid;” and such a promise upon condition that the attachment should be released, and the consequent release of the attachment, will not, in a subsequent suit by A. against B. and D. upon the note, estop D. to deny its validity.</p>

This is an action of debt founded upon a judgment recovered by the plaintiff against the defendant, as trustee of one George Ramsbottom, in an action, wherein the writ is dated January 3d, 1860, returnable at the April Term of said court in said county, 1860 ; was served upon said Ramsbottom and said Smith, January 3d, 1860 ; and was entered at said April Term, and, neither said Ramsbottom nor Smith appearing, said Smith’s default was recorded, and judgment rendered against…

Tms is a bill in equity brought by Ira Weeks against Benjamin H. Jewett and Mehitable Jewett, his wife, and Samuel J. Sinclair and Frances M. Sinclair, his wife.

” The defendant moved that the complaint be quashed, because it contained no sufficient description of any legal offence.

<p>Where gold coin was pledged as security for becoming bail, and it afterwards rose in value much above par, it was held, that, in an action for money had and received, the damages must be limited to the amount of money received with interest, and could not be enhanced by an increase of its value as merchandise; and held also, that, in trover, the measure of damages would be the value of the coin at the time it was converted, and not when the verdict was rendered.</p>

<p>Where the plaintiff, during the pendency of his action, had recovered a judgment against the defendants in another State for the same cause of action, an agreement in due form between the parties, made several terms after the recovery of that judgment, and after the general issue had been pleaded, that the defendants may file a plea setting forth the judgment recovered, “without prejudice to the legal rights of the parties,” in bar of the further maintenance of the action, without costs, setting forth the plaintiff’s objection to “the reception of this plea from the defendants,” and stating that the counsel for the defendants appear for subsequent attaching creditors and the assignee of the defendant corporation, and agreeing that the question, whether this judgment so recovered can avail the defendants, be reserved for decision, is a waiver of any objection on account of the time when the plea is offered, if it is duly filed according to the agreement.</p> <p>Subsequent attaching creditors and the assignee of the defendant upon the record, having been admitted to defend in his name, may plead a former recovery by the plaintiff, where the defendant could have pleaded such recovery as a defence.</p> <p>In assumpsit a judgment for the same cause of action rendered in the Supreme Court of New York, during the pendency of the plaintiff’s action here, may be pleaded in bar of the further maintenance of the action; and it is not a sufficient replication to such plea, that the plaintiff in his action here had caused the defendant’s property to be attached, and that the defendant’s property in either State alone was insufficient to Satisfy the amount due the plaintiff upon the cause of action set forth in his declaration.</p>

This action was tried by the court. It was trespass against the defendant, as an officer, alleging that he took with force, &c., on the 4th of April, 1863, plaintiff’s plough, wheels, axletree, &c., harrow and drag, all of the value of $15, alleged to be the tools of his occupation, and exempt by law from attachment.- It was admitted that the plaintiff was by profession a farmer, and that the aforesaid tools were the same used by him, and required for use on the farm…

<p>Upon an appeal from a decree of the judge of probate allowing a guardian’s account, the only matters open to inquiry by the appellant are those specified in his reasons for appeal. But the appellee is not thus confined, but may, on such appeal, show error in any part of the decree and have it corrected.</p> <p>In such case the original reasons for appeal may be amended in any way that does not change the nature of the claim. The manner of stating the claim may be changed, and the grounds on which it is sought to be recovered, provided the court can see that the same thing is sought to be recovered or accomplished under the amendment as under the original reasons for appeal.</p> <p>New and independent reasons for appeal cannot be assigned by way of amendment.</p> <p>In such cases of appeal, neither party can claim, as a matter of right, that any question of fact that may arise shall be submitted to a jury. But this court may, in its discretion, submit any such fact to a jury, when deemed proper.</p> <p>When an auditor is appointed by this court in a case like this, to hear the evidence and report facts, he does not derive his powers from the statute providing for the appointment of auditors to state accounts between parties, nor have the parties in such case any right to try by a jury, any facts thus found by the auditor.</p> <p>If either party desires a jury trial, the motion for issues should be made before the appointment of an auditor.</p>

Petition for leave to discontinue a new highway. • The county commissioners report chat they 6 1st. The town of Marlboro’, since said highway was established, has become deeply involved.

Assumpsit. The sheriff was commanded to attach the goods or estate of Stillman Griffin of Hartford, in the county of Windsor, and State of Vermont, &c., and summon him, &c., to answer to the inhabitants of the town of Lebanon, in the county of Grafton, in a plea of the case, for that whereas Mary Griffin of Lebanon, &e., on the day of the date of this .writ, and for a long time previous, to wit, for the space of five years last past, at said Lebanon, had fallen into distress…

This action was brought to recover a sum of money expended by Warren, for the support of one Page Kimball and his family, paupers, alleged to have their settlement in Wentworth.

Assumpsit. The referee, to whom, by agreement of the parties, this action was submitted under a rule of court, having heard the parties on the 24th of Sept. 1864, made the following report : Upon the evidence and pleas of the parties, said referee finds the following facts : That the note-described in the plaintiff’s specification was given to said Flint by the defendant, and has never been paid, except as appears by the indorsement on the back thereof, and that there is now…

<p>The report of a commissioner, appointed by the court to tax the costs in an action at law, should show what items of costs are allowed by him.</p> <p>Where it appears that the finding of such a commissioner upon a question of fact is made wholly or in part upon oral evidence heard by him without objection from the parties, such finding will not be revised by the court.</p>

<p>A school district cannot, by vote, deprive the prudential committee of the power to provide board for teachers.</p>

Writ oe entry for land in Berlin. Plea, nul disseizin. Held: and that the same lands at the time of the foreclosure were of sufficient value to satisfy and discharge the whole amount of the Green and Merrill mortgages; and it was also agreed,' for the like purpose, that the Green mortgage was not foreclosed in respect to the demanded premises.

<p>Where the priority of different creditors attaching the property of a firm is to be determined by the individual or partnership character of their respective claims, the mere fact that a promissory note is signed by the individuals, who, compose the firm, is insufficient to show that it is a partnership debt.</p>

<p>Appeal, by the defendant administrator, from the allowance of plaintiff’s claim by the commissioner of Eastman’s estate.</p> <p>The plaintiffs did not file their declaration within the thirty days required by sec. 5, ch. 172, Compiled Statutes, and now moved for leave to file a declaration.</p> <p>The court ruled that it had no jurisdiction or power to grant the motion, and on that ground denied it, and plaintiffs excepted.</p>