Volume 46 — New Hampshire Reports

<p>Petition for leave to appeal from a decree of the judge of probate,, passed on the 4th Tuesday of November, 1862, allowing the defendant,, the widow of Charles Smart, eight hundred dollars out of his personal. estate for her present support. The petition alleged that the petitioners intended to appeal from the decree, and claimed their appeal to the trial. term of the Supreme Court held on the first Tuesday of February, 1863, and then entered their appeal, when it was transferred to the law term,, where it was continued till December, 1864, when the appeal was dismissed for the cause that it should have been entered at the law term; that, by reason of a misconstruction of the true intent and meaning of • the statute as thus interpreted by the court and through accident, mistake and misfortune thereby incurred, and not from their own neglect, they have been prevented from appealing within sixty days; and that they are aggrieved by the- decree. They set forth their interest, and pray that they may bo allowed an appeal. No particular grounds of appeal are set forth in the petition.</p> <p>The petition was filed on the 16th day of December, 1864.</p>

It appeared that one Parker Gf. Melvin, then residing in Litchfield, was committed to the Insane Asylum, iu Concord, on the 16th day of July, 1859, by an order from the judge of probate for the county of Hillsborough, and that lie had since remained there. Plaintiff had paid the charges for his boai-d, &c., at the Asylum, amounting to §400.09, and brought this suit to recover the same of the defendant.

<p>In this case the plaintiff became nonsuit at the January adjourned term, 1865, and the defendant taxed as costs the ordinary travel, attendance and attorney fee, amounting to eight dollars, to which there was no objection. Defendant also taxed for' copies of deeds three dollars, and for expenses of survey and plan eleven dollars. To both these last charges objection was made and the questions thus raised were reserved.</p>

<p>A note signed by a principal and surety may be set off against a note due to such principal alone. So a judgment against two, while it is admitted or proved that one is principal and the other surety, would stand on the same ground as an offset, as a note against the same person in the same capacity.</p> <p>Where the plaintiff’s claim is sued in tho name of some nominal party, or where the defendant’s claim against the plaintiff is a judgment iu the name of some nominal party, but belongs to the defendant and did so at the time of suit brought, the offset may be made, as the demands will be regarded as mutual, if between the same parties in interest, without regard to parties merely nominal.</p> <p>Where defendant held a note against the plaintiff at date of plaintiff’s writ, which, afterwards and during the pendency of plaintiff’s suit, passes into judgment, he cannot file either the note or the judgment in offset to plaintiff’s claim.</p>

<p>Assumpsit. The count in the declaration was for a balance due the plaintiff on account, according to an account annexed to the writ. This account was for several lots of lumber, stating the number of feet and the price per thousand feet, with the amounts carried out, and there were credits given on this account, one of which was a credit for "cash paid Hubbard per order, $110.00.”</p> <p>On opening the case to the jury, the' plaintiff’ moved for leave to amend his writ, by increasing the ad damnum, and also by increasing the balance of account sued for, in the sum of $110.00, and to amend the account annexed to said writ, by striking out the credit of $110.00, aforesaid. The court reserved the question of amendment until aftel verdict, but ruled that the plaintiff might’ introduce evidence to show that the credit of $110.00 was an error; that no such sum had ever been paid by defendant, to be applied or allowed upon the account sued in this case ; and that if any such payment-had ever been made by defendant, it was made to be applied upon another and a different account from this, and suggested to the counsel, that, if under this ruling the amendment proposed became necessary by the verdict of the jury, in order to do justice between the parties, it would be allowed upon such terms as might seem just.</p> <p>The jury returned a verdict for the plaintiff, under which the proposed amendment is not needed and will not be allowed.</p> <p>To ibis course of proceeding by the court, and to the above ruling as to the admissibility of the testimony aforesaid, the defendant excepted.</p>

Case, to recover damages for injuries received and occasion^ by an alleged defect in a highway in defendant town. One point in the defence was, that the plaintiff Was, at the time of the accident, driving a horse, known by him to be vicious and unsafe, and that his injuries were caused by the vices of his horse. Plaintiff called a witness who saw the accident, and went immediately to the place after it occurred.

<p>In this case the parties agree upon the following statement of facts :</p> <p>Hezekiah Fellows, the intestate, died in 1861, leaving a widow and four children and heirs-at-law, to wit: John, this app’t, aged 46 ; Catherine Gleason, 41; George, 37; and Salome McCurdy, 34 years. George has since died, leaving a widow and children.</p> <p>On the settlement of the administrator’s account in the probate court, July 28, 1863, there was found in his hands for distribution, a balance of $2364.74, and it was then decreed and ordered by said court that the same should be distributed and paid over as hereinafter stated.</p> <p>In determining the distribution, John, the app’t, was held accountable for $961.93 ; Catherine for $171.12; George for $452.00, and Salome for $42.00, as the amounts of advancements received by them respectively in the lifetime of their father. And the probate court made the distribution as follows:</p> <p>Balance, $2364.74</p> <p>1-3 to widow, 788.24 2-3</p> <p>$1576.49 1-3</p> <p>This appellant being held accountable for the amount before stated as advancement, no part of this sum was allowed him, but the same was distributed among the other children, thus :</p> <p>$1576.49 1-3</p> <p>Advancement to Catherine, 171.12</p> <p>“ “ George, 452.00</p> <p>“ “ Salome, 42.00</p> <p>$2241.61 1-3</p> <p>1-3 is $747.20 1-3</p> <p>171.12</p> <p>Catherine’s share. 576.08 1-3</p> <p>747.20 1-3</p> <p>452.00</p> <p>George’s share, 295.20 1-3</p> <p>747.20 1-3</p> <p>42.00</p> <p>Salome’s share, 705.20 1-3</p> <p>$1576.49</p> <p>The amounts for which the heirs were held accountable as advancements as aforesaid were entries found upon leaves fastened in the back side of a book containing only records of the intestate as a justice of the peace, with some leaves fastened in the front side containing some accounts. Those entries were mostly in the hand-writing of the intestate. They are all which appear in the book relating to this matter. Either party may refer to the book as part of the case.</p> <p>The intestate was a trader, and as such, kept regular books of accounts. In those books were other charges against this appellant not included in the above entries reckoned as advancements.</p> <p>It is admitted that these entries were made by the intestate, or by his order, as they purport. The administrator proposes, if admissible, to offer the testimony of witnesses to show that the intestate, in his lifetime was a justice of the peace and frequently acted as executor and administrator, and was familiar with the probate laws of the State — that he had shown these charges to various persons as the evidence of advancements made by him to his children, and on several. occasions, after he became old and infirm, directed others to make entries in these accounts, stating to them that he wished them made for the purpose of showing that the articles charged were advancements made to the children to whom they were charged, and frequently in his lifetime and from the * time of the earliest entry in the accounts, declared his ¡purpose in keeping the same to be to preserve evidence of the advancements he had made and was making to his children, in order that they might be taken into consideration in the distribution of his estate after his death, stating his purpose to be that each child should share equally in his estate, taking into consideration what each might have received in the way of advancements as shown by these accounts.</p> <p>The appellant does not admit that any such evidence could be furnished, but if the Court shall be of the opinion that such would be admissible, the parties are to have the right to take testimony on these points if they cannot agree as to facts.</p>

<p>Where costs are imposed-on‘a party, as a penalty for not complying with a legal order or rule of court, and such party unreasonably declines to obey such order, his application for a favor will not be granted, except on the condition that he first purge his contempt.</p> <p>Where a defendant consents to a default, but asks to be heard in damages, the court may properly refuse to hear his evidence, and may proceed to assess plaintiff’s damages upon exparte testimony, as the only means left of vindicating their order.</p>

<p>Petition for a netv trial.</p>

<p>Assumpsit, for certain articles of furniture. It appeared that said! defendant had formerly been considered insolvent, but that his wife, now deceased, had property in her own right, or in the hands of a trustee, of which she had the income and profits; that the farm which she and the defendant had lived on, was in the hands of her trustee, and that she used the income thereof in supporting herself and family ; that these facts were known to the plaintiff; that defendant’s wife, in her lifetime, bought the furniture in question of plaintiff; that he chose to give the credit for the same to the wife, rather than the defendant; that he sold her the furniture upon credit, and that it was understood at the time by them both, that the credit was given to the wife, and the articles were charged directly to her, upon the plaintiff’s book. Since then the defendant’s wife has deceased, and this suit is brought against the defendant for that furniture. And it also appeared that the furniture was such as it was proper and necessary that the defendant or his wife should have, if they could get it, to furnish their dwelling-house, and that the wife, at her decease, left a will, in which this furniture with other property was given to the defendant, or left for his use and benefit.</p> <p>Upon these facts the court ruled that the defendant was not liable, and ordered a nonsuit, and the plaintiff excepted.</p>

The defendant was arrested on mesne process, and carried before two justices on his application to be discharged. The facts which appeared on the proceedings before the two justices are stated in the case of Rogers v. Stevens, reported in 45 N. H. 478, and are to be made part of this case. Since the hearing on that application, and before the return day of the writ, the defendant procured bail and was discharged from arrest.

Writ oe entry for land in Prances town. The defendants claimed title by virtue of the levy of an execution is- • sued on a judgment against the plaintiff founded on a cause of action arising since January 1, 1852. The plaintiff claimed under the Homestead Act. At the time of the attachment and levy, the plaintiff Buxton owned and occupied’ a lot of land in Francestown upon which was a house in which he lived with Iris family.

This action is brought against James White and several trustees, and Mahala White, claimant of fund in trustees’ hands. Mahala White, the claimant, is the wife of the defendant. Before marriage they made a marriage contract which is referred to in the opinion.

Assumpsit against the defendants as common carriers. On the 14th of November 1863, the plaintiffs delivered to them a parcel to be carried to Stephen W. Leighton, at Derry, which was marked C. O. D.” or cash on delivery.” Said parcel was delivered to the defendants’ agent, at said Derry, for delivery to said Leighton, who subsequently delivered the parcel to him.

Writ oe entry. Submitted upon an agreed statement of facts. The demanded premises are in Weare, in this county, and consist of a house and lot of land of the value of five hundred dollars.

Trespass qucire clausum fregit, for entering and wilfully and maliciously removing, breaking and destroying 400 feet of plaintiff’s flash-boards, and pulling out the iron pins against which said flash-boards rested, which formed a part of said plaintiff’s dam, and wilfully turning aside and diverting the waters of the Merrimack River from plaintiff’s mills, &c. Plea, general issue, with a brief statement that defendant was at the time when, &c., possessed of a certain tract…

<p>Trover, brought by the executrix of the will of Esther Kittredge for the recovery of a note held by the defendant under the following circumstances :</p> <p>In the year 1860, the said Esther Kittredge placed in the hands of the defendant a note against one Leonard C. French, 2d, and at the same time gave to him an order in writing as follows :</p> <p>"Oct. 15, 1860.</p> <p>Mr. L. C. French, 2d, Pay to John L. Kittredge the amount of the note I hold agains.t you at my.decease.</p> <p>My</p> <p>Signed, ESTHER ><j KITTREDGE.</p> <p>mark.</p> <p>Witness, Sarah Mudge.”</p> <p>On the 7th of October, 1862, this note was renewed, and the new note left with the defendant with the same instructions to the said Kittredge as upon the first note, and with the further verbal instructions that if there should be any balance due upon said last named note at her decease, to collect the same and pay it over equally to her two sons, Nehemiah and Leonard Kittredge.</p> <p>This note was dated Oct. 7, 1862, and made payable in the sum of two hundred dollars to the order of the said Esther Kittredge on demand with interest. The interest on this note had been paid annually to the said Esther. The last payment was in August, 1863.</p> <p>On the 31st day of October, A. D., 1863, the said Esther made her will devising to her daughter, Mary Craig, all the property of -which she died seized, of every kind and description, wherever the same might be situated, and appointed the said Mary executrix.</p> <p>Esther Kittredge died Nov. 16, 1863. This will was approved Dec. 31, 1863.-</p> <p>On the 16th day of February, 1864, the said John L. Kittredge, having no knqwledge of the existence of said will, collected the amount due upon said note and appropriated the same according to the request of said Esther. A demand was made upon the defendant for said note, and the service of the writ made May 14, 1864.</p> <p>This case is submitted to the court upon the foregoing statement of facts, reserving to either party the right to a trial by jury without prejudice from anything herein contained.</p>

Case, for special damage happening by reason of the obstructions, insufficiency, and want of repair of a highway.

Indictment for keeping a disorderly house. On trial it appeared that the defendant occupied a two story building on Fleet Street, in Portsmouth. The only outer door of the building on the street opened into an entry, and a door opened from the entry into a room on the ground floor; this room occupied all or nearly all of that story.

<p>A writ of certiorari will lie to remove the record of the laying out of a highway by selectmen. Where the errors or irregularities are merely formal and technical, and the court can see that no substantial injustice has been done, the writ will be refused; nor will the court seize upon the fact that such formal or technical error exists, to re-examine the case on its merits; but will consider only the effect of such errors or irregularities upon the substantial merits of the cause.</p> <p>Therefore, if there be a defect in the notice, by reason that one of the selectmen who was interested, acted in giving it, although he did not act in laying out the highway, the writ will be refused, if the court can see that no injustice has been caused by the defect.</p> <p>Where the highway in question at one terminus connected with a street laid out by private individuals, on which, and other streets connected with it, the owners and others had built and were occupying eighteen or twenty dwelling houses — held, that the selectmen had jurisdiction to lay out the way in question, although the streets referred to were not, as highways, legally established.</p> <p>The writ of certiorari will not lie to correct an erroneous assessment by selectmen, of damages to land owners; a specified remedy by appeal being given by statute.</p>

<p>Where two persons are of the same relation to the deceased, and one resides in this State anS the other does not, ordinarily the one resident here is entitled to administration as of right; hut if he makes a claim against the estate which is contested by the heirs, it is properly within the discretion of the court to appoint the one residing out of the State.</p>

This case was, by agreement of parties, triéd by the court. It is an action of assumpsit to recover one half of a promissory note, made by the plaintiff and defendant, for $175.00, dated May 6th, 1859, and payable to William E. Young, or order, in one year from date, and which at maturity the plaintiff had paid.

<p>Replevin for two beifers. Tbe writ was dated December 24, ■ 1862. Only one of the heifers was taken on, the writ. The defendant pleaded property in himself.</p> <p>On trial it appeared, that, on the 23d of April, 1859, the plaintiff leased his farm in Portsmouth to Charles Adams, for five years, reserving one field and the house in which the plaintiff lived. By the lease the plaintiff agreed to furnish, to be used by Adams, stock or cattle, to the value of $150., for which Adams was to pay to him interest annually, which he furnished accordingly. Adams had also some cattle of his own on the farm, and bought and sold cattle occasionally.</p> <p>In 1850 Adams bought the heifer replevied, then a calf, of one Clow, and raised her on the farm. In May, 1862, Adams, being in arrears for rent, gave the plaintiff a note for $62.20. On the 11th of June, 1862, the plaintiff demanded payment of the note, and Adams sold to the plaintiff the heifer'replevied for $12., and the amount was endorsed on the note in part payment. The heifer was then taken by the plaintiff to the part of the farm reserved to him and kept there a few days. Finding it inconvenient to keep the heifer there he made a bargain with Adams, that he should pasture the heifer in the pasture where she had been kept before, for the rest of the season, where she was kept with the' herd as she had been before the sale.</p> <p>The other heifer named in the writ came from a cow Adams had-bought, and was in the year 1861 turned over by him to the plaintiff to* make good the stock the plaintiff had let to Adams, part of which Adams had disposed of.</p> <p>In September, 1862 Adams sold both the heifers to the defendant for $26. The heifers, by an arrangement with the defendant made Avith Adams, remained some time after this in the pasture, and were taken away one at a time, as suited the conA-enience of the defendant. Soon after the last heifer Avas taken atvay by the defendant, Adams left the country.</p> <p>Before the date of the Avrit the plaintiff demanded the heifers of the • defendant; the heifer Avhich he first took from the pasture, and which he had been fattening, was slaughtered by the defendant, and for this reason it Avas not replevied.</p> <p>Upon being inquired of, neither party desired to go to the jury to show the fact that the other party had been guilty of any actual fraud in the sale of the heifer replevied.</p> <p>The parties agree that the questions arising upon these facts shall be reserved for the consideration of the Avhole court. If in the opinion of the court the defendant is entitled to recover, he is to have judgment for fifteen dollars, the value of the heifer replevied, with interest from the date of the writ; otherwise the plaintiff is to have judgment for nominal damages.</p> <p>The questions arising on the foregoing case are reserved for the consideration of the Avhole court.</p>

<p>Where the plaintiff, at the time of making a deposit of money in a savings bank, accepted as the evidence thereof a book stating the deposit and containing this clause: “Depositors are alone responsible for the safe keeping of the book, and the proper withdrawal of their money; no withdrawal will be allowed without the book, and the book is the order for the withdrawal:” Held, that the clause must be taken to have made part of the contract between the plaintiff and the bank.</p> <p>In assumpsit brought against the bank for such a deposit, where it appears that the plaintiff’s book had before the commencement of the action been lost by or stolen from him, and that thereupon he exhibited to the bank evidence of this, and demanded his deposit, which the bank declined to pay to him without indemnity, and that he commenced the action without offering any indemnity, he cannot recover.</p>

Assumpsit. The declaration originally set forth that the defendant, on the day of the purchase of the writ, being indebted to plaintiffs, who were husbandi and wife, in $5000, promised to pay them that sum on demand. The writ is dated Sept. 7, 1850.

BELKNAP, SS. — TO THE SUPREME JUDICIAL COURT. The Winnipisseogee Lalce Cotton and Woolen Manufacturing Company, a corporation existing by laic in this State, and doing business at Gilford in said county, complain against John L. Perley, of Laconia, in said county, and say: That, on the thirtieth day of August, in the year 1852, they were, and for a long time prior thereto, had been, the lawful owners in possession of a tract of land situate in the towns of Gilmantón, (now…

<p>On an appeal from the decree of a probate court in the settlement of an administrator’s account, some of the heirs of the intestate became parties, appellees of record. The original administrator having died and his account being presented by his administratrix :</p> <p>It was held that one of the heirs who had so become party, was not a competent witness, unless the administratrix elected to testify.</p> <p>"Where the administrator of a widow, who was entitled to a revolutionary pension, received arrears of pension due at her death, and which by law was for the benefit of her children, it was held that this money was in no sense assets in his hands for the payment of debts or the general expenses of administration, but was held by him as administrator in trust for the children.</p> <p>And it was also held that a special decree should be made, charging the administrator with the money so received, deducting therefrom the expenses attending it, and providing that it should be paid directly to the children of the intestate, with a view to a remedy upon the administration bond.</p> <p>It was also held that any person who has a direct interest in the discharge of the administrator’s duties, has an interest in the obligation by which the performance of those duties is secured, although he may be neither creditor, legatee nor heir.</p>

Assumpsit, on two joint and several promissory notes for $2,000 each, signed by one Iiill as principal, and the defendant as surety, and payable to the plaintiff — one dated Nov. 4th, 1857, and the other, Nov. 6th, 1857. The defendant, under the general issue, introduced evidence tending to show the following facts : The act incorporating the bank passed July 12th, 1856.

<p>This is a petition for leave to appeal from the decision of a commissioner upon an insolvent, estate, upon the ground that the petitioner was prevented from appealing therefrom through mistake, accident or misfortune, and the petitioner proposes, also, to amend, by asking for a review or new trial.</p>

Assumpsit. On the 26th of Dec., 1864, the defendant was arrested oh the writ,,which had upon it the plaintiff’s affidavit of the defendant’s indebtedness to him in more than §13,33, and of his belief that the defendant was about to leave the State to avoid the payment of his debts.

<p>In this action the question of the liability of said Pond as the trustee of Buss & Woodward was tried by the jury upon the common issue. The trustee held certain personal property of Buss & Woodward under an instrument which purported to be a general assignment to him for the benefit of their creditors. The only ground stated by the plaintiff’s counsel, in his opening, upon which he claimed to charge the trustee, was that the assignment was made and accepted with the intent of defrauding, hindering or delaying the creditors of Buss & Woodward.</p> <p>Buss & Woodward, at the time they executed the assignment, owned real estate in this county. In the course of the trial the trustee proposed to prove the formal execution of the instrument by Mr. Yose, one of the two subscribing witnesses; but it appearing that Mr. Yose was, at the time of the execution of the assignment and also at the time of the trial, a director and.stockholder of the Cheshire County Banlq which was at both these times a creditor of Buss & Woodward, the plaintiff objected that the assignment was for this reason invalid, but the court overruled the objection. The plaintiff also objected that for this reason said Yose was not a competent witness to prove the formal execution of the assignment; but the court overruled the objection and permitted him, subject to exception, to testify to the formal execution of the assignment. To both these rulings tlie plaintiff excepted. Subsequently the trustee introduced Mr. Tilden, the other subscribing witness, who testified to the formal execution of the assignment; and thereupon the court, at the request of the trustee, ruled out so much of the testimony of Yose as went to prove the formal execution of (he assignment, and directed the jury to lay it wholly out of the case.</p> <p>The jury returned a verdict for the trustee, which the plaintiff moved to set aside because of the foregoing exceptions.</p> <p>The questions of law arising in the case were reserved.</p>

<p>Trover for 2 cows, 1 yearling heifer and 2 calves, alleged to be the property of plaintiffs, and wrongfully taken and converted by defendant on the 25th day of September, 1862.</p> <p>The pleadings claimed the property to have been attached by defendant on legal process as the property of John B. Osborne in favor of one Anson Cole. There was no dispute that defendant was a deputy sheriff at the time of the attachment, nor that Cole’s debt was then due and valid. It appeared in evidence, that, in the spring of the year, 1858, said Osborne was poor and in embarrassed circumstances, and resided upon a farm in Westmoreland, in which his wife’s mother was entitled to one half of the income, and that he then applied to the plaintiffs, as his neighbors and friends, for assistance to enable him to stock and carry on his farm. He requested plaintiffs to furnish him with a pair of young working oxen; also with three milch cows, with the understanding that •he, the said Osborne, should have the use of said oxen, and take good care of them, and the plaintiffs to have the benefit of their growth, and that Osborne was to have the milk of the three cows, and to keep them well, while the plaintiffs, in the meantime, were to have all-the increase of the cows, arising from calves, or all the calves were to be the plaintiffs’ until they should get back the .amount of their -advances ; — the plaintiffs also to have the right at any time to take possession- and dispose of any or all of said stock, whenever they might see fit.</p> <p>The plaintiffs acceded to the aforesaid proposition of Osborne, each agreeing to furnish his share or half of the outlay.</p> <p>They put on the place accordingly, a pair of steers, for which they paid $105.00, also three cows reckoned at about $90.00 — and an .old wagon, about which there was no question, being estimated at $10.00— in all $205.00. The cows were put on the place, the last of March or first of April, 1858, and were then with calf; the two cows in dispute being the calves of that spring, and when attached, in 1862, were called 4 years old cows. It appeared also that the said yearling and 2 calves now claimed by plaintiffs were the offspring of two of the cows originally put on the place as aforesaid. Of the three cows put on the place in 1858, two of the same had been before kept on the place, and when Osborne failed in business these cows were bid off by plaintiffs at a regular auction sale of Osboi'ne’s property. The third cow was found by Osborne and the price of her ascertained by Osborne, and he, procuring the money from plaintiffs and paying the price, took the cow into his possession under the aforesaid agreement. The plaintiffs occasionally conferred with Osborne as to the treatment and disposition or sale of the cows and their progeny. One of the old cows was fatted and killed; Osborne consulted with plaintiffs about selling her, he agreeing to dispose of her and account for proceeds. Osborne testified that he sold all of her except one quarter which he consumed in his family, and for this quarter he had agreed to account with plaintiffs, and -that he had paid ...over $25.00 for the part he sold. Since this suit was commenced, another of the old cows had been disposed of, and the proceeds paid over to plaintiffs, at the price of $35.00. It appeared also that Osborne, by consent of the plaintiffs, had consumed one calf and had agreed to account for the proceeds to them. For two of the years between 1858 and 1862, all the cows were farrow.</p> <p>The oxen had been sold at $145.00 and proceeds paid over to plaintiffs by Osborne. At the time of the attachment, Woodward, one of the plaintiffs, was present and notified the defendant and Cole, the attaching creditor, who was also present, as to the nature and extent of plaintiffs claim and forbade the taking. The contract, as before stated, was verbal and indefinite as to time. ' .</p> <p>From the testimony of the plaintiffs it might be fairly inferred that the young calf used by Osborne was to be treated as a gift by plaintiffs to him, for which he was to render no-further account.</p> <p>Both of the plaintiffs, in substance, testified, that, under their agreement with Osborne, they claimed nothing in the cattle any more or longer than to get the pay for the money advanced. •</p> <p>There was at the trial some testimony offered tending to show former statements of Osborne contradictory to some of his evidence now given in, affecting his veracity, memory, &c., and giving a character, to the manner in which the property had been treated by the witness. This was submitted, with the other evidence in the case, to the jury. It did. not appear that Osborne kept any other cattle on the place during the time aforesaid. The court, among other things, instructed the jury that they might inquire whether the contract and the things done under it were honest and bona fide, or whether any fraud had been intended or committed by the parties to it; — that if they found plaintiffs had paid a full price for the cows which were originally placed on the farm, they being at the time with calf, such progeny of the said cows would vest in the plaintiffs as Owners ; and that a contract of this kind might extend for such reasonable time as would enable the plaintiffs to realize their indemnity according to its terms. It was for the jury to inquire whether this contract was tainted with any actual fraud or was attended with any secret trust or any improper benefit was reserved to Osborne, or whether the tendency and effect of the arrangement was of that character as would necessarily delay, hinder or prevent the creditors of Osborne from obtaining their just remedies at law. If the jury found the contract, or any part of it, fraudulent, they were instructed to set it aside and render their verdict for defendant. The counsel for defendant, suggesting that it was matter of law whether four j'ears was not an unreasonable time for the completion of such a contract, asked the court to instruct the jury accordingly. Whereupon the court, under the views before suggested, told them it would not, but subsequently told them they might form their own judgments upon all the evidence upon this point as well as all others raised in the case. The jury having found their verdict for the plaintiffs, the defendant excepted to the charge of the court or a portion thereof</p>

<p>Assumpsit on a promissory note signed by the defendant, dated January 27, 1859, and payable to Anna George, then the plaintiffs wife, or order, on demand. The action was commenced on the 10th of January, 1863. On trial the following facts appeared :—</p> <p>The plaintiff was married on the 12th of December, 1858, and then resided in Newport village. His wife then lived in another part of the town on a farm, which she held and owned in her own right; she also had personal property on the farm, consisting of cattle, hay, &c. Nor two months after their marriage, the plaintiff resided on his place in Newport, and his wife on her farm. She took care of her stock about two months of that winter, and some time in the ensuing spring she sold the farm making her own bargain and taking the consideration to herself with the assent, of her husband, who joined with her in the conveyance. The note in question was given by the defendant for a cow and two calves, which were the wife’s at the time of the marriage and remained on the farm till the time of the sale, when they were delivered by her to the defendant, who gave the note for them at the time of the delivery.</p> <p>In November, 1859, some difficulty happened between the plaintiff and his wife, and the day after this occurred the plaintiff gave the defendant notice not to pay the note to his wife. The plaintiff and his wife then separated and have not lived together since.</p> <p>In July, 1860, the defendant was sued on this note in the name of Jeremiah S. Noyes as endorsee. The name- of the wife alone appears on the note as endorser. It did not appear when the note was endorsed nor upon what consideration. On the 13th of August 1860, after the suit of Noyes was commenced, the defendant gave the plaintiff notice of it in writing and offered to pay him upon indemnity; in.the same writing the defendant gave the plaintiff notice that Unless he received indemity he should pay the note to. Noyes, and afterward, not having received any indemnity, the defendant paid the note to the attorney of Noyes and produced it on the trial of this action.'</p> <p>The court instructed the jury that the property owned by the wife at the time of the marriage with George, remained hers unless the husband reduced it to his own possession ; “whether the husband has thus reduced her property to his possession may not depend upon any technical rule or the concurrence of any particular facts, except that the intention must exist and be carried into execution.” And this intent so executed must be gathered from the evidence in the case.</p> <p>The right of the husband to the wife’s property is regarded as a marital right which he may waive or insist on as he pleases, and which if he does waive, the goods remain- the property of the wife. Such waiver .may be shown by an agreement on the part of the husband, express or implied, either before or after the marriage, that the property shall remain hers to control and use and dispose of at her pleasure.</p> <p>That if the jury believe that George looked on and saw his wife sell trad dispose of the property which constituted the consideration of the note in question, and that he assented to such sale, he was bound by it, and could not afterwards reclaim the property sold (or the note given therefor to the wife,) without her consent and to her prejudice, or to the prejudice of any person interested in said note. An authority to sell her property gave to the wife an authority to take the note in her own name, and to negotiate it and endorse it to another.</p> <p>The court were requested by the plaintiff to charge the jury:</p> <p>1. That if George, while the note remained in his wife’s hands, made claim to it, and notified the defendant that he so claimed it, and that defendant must pay it to him, this was a revocation of all authority that he might have conferred upon his wife to dispose of it, and a revocation of her title to it.</p> <p>2. If George waived his right to the property, which was the consideration of the note, that did not prevent his asserting a right to reduce to possession the note while it remained in her hands.</p> <p>3. If plaintiff at any time waived his marital rights over the property of Mrs. George this was a waiver that he had a right to revoke at any time during the marriage while the property remained in her possession, and if he did revoke such waiver, he would have a right to reassert his marital rights to all such property as remained in her possession at the time of such revocation.</p> <p>4. That the transfer of the note, whether by endorsement or otherwise, to Noyes by Mrs. George, would not enable him to maintain an action upon it in his own name, and therefore the defendant could not be compelled to pay the note to him.</p> <p>The court did not charge the jury agreeably to the aforesaid requests, but in the manner and with the limitations as before stated, whereupon defendant excepted.</p> <p>The jury returned a verdict for the defendant, which plaintiff moved to set aside.</p>

The action was against the White Mountains Railroad and others, as principal defendants, and Lucy Clark and others, as trustees. Lucy Clark filed the usual plea, and the plaintiff elected to take her disclosure. Her disclosure was as follows :— “Interrogatories proposed by A. F. Snow, Att’y for the plaintiffs, to said Lucy Clark, sued as trustee aforesaid: Jit. 1.

In this case the defendant moved seasonably at the March Term, 1864, when the action ivas entered, that the writ be quashed upon the alleged ground that the blank upon which the writ was made had been previously used in the commencement of an action in favor of John S. Bryant against Isaac B. Smith, and had therefore performed its office ; and the defendant offered to show by evidence aliunde that the writ so filled up against the said Smith had been put into the hands of an…

<p>At the November Term, 1863, an order was made as follows : "Defendant allowed to plead the general issue ; defendant to pay and tax no costs of this term and to pay $10 counsel fee; terms to be paid in sixty days before next term, or default.” At the next term, the terms not having been paid, the defendant was defaulted, and the plaintiff claimed to be allowed the $10 counsel fee. The clerk was appointed a commissioner to tax the costs, the bill was submitted to him for taxation, and as clerk, but not as commissioner, he allowed other items in the bill, but disallowed the item in question. The plaintiff appealed to the court and moved that this item be allowed, the court allowed it, the defendant excepted, and this case was reserved.</p>

<p>Assumpsit, upon an account annexed to the writ for services as a physician, also for not paying the plaintiff the sum of §200, claimed by him as a bounty voted by the town for volunteers. Writ dated April 18, 1863-. The defendants having made a confession of a portion of the items of the account, and filed the general issue as to the residue of the plaintiff’s claim, the parties agree, for the purposes of this case only, upon the following statement of facts :</p> <p>That, at a legal town meeting duly called and held on the 12th day of August, 1862, the town of Danbury, pursuant to an article in the warrant calling the same, voted, " that the selectmen be instructed to borrow five thousand dollars, on the credit of the town, and appropriate so much of the same as may be necessary to pay a bounty of two hun-' dred dollars each for the number of the quota of the town for volunteers called for * * * * * * * * * * and that when this meeting adjourns, it adjourn to meet the first Saturday of September.” On the first Saturday of September met according to adjournment and "voted lo pay the overplus of those (then) enlisted for three years the sum of two hundred dollars.” " Voted to pay the nine months men one hundred dollars each.” Adjourned to September 11th, 1862, at which time the town "voted to pay one hundred dollars in addition to the one hundred dollars previously voted for nine months men, provided they are called into the service of the United States out of the State.”</p> <p>At the first adjourned meeting in September, when the case of one James T. Smith was before the meeting, a motion was made that the vote of the town offering two hundred dollars bounty for volunteers passed at the previous meeting should not be so construed as to include commissioned officers, but the town refused to adopt the motion, which action.of the town is not recorded.</p> <p>The town appointed a person to see to filling their quota and to superintend the recruiting in the town.</p> <p>The plaintiff, being a citizen of the town of Danbury, enlisted from that town on the 28th of October, 1862, at Concord, under Anthony Colby, the Adjutant General of this State, who was a legally constituted recruiting officer in this State, to serve for the period of nine months from the mustering into service, unless sooner discharged, which said enlistment was in the usual and legal form of enlistments for the volunteer service, and on the said 28th day of October, the plaintiff was duly •.find legally mustered into the military service of the United States for the period of three years or during the war, as Assistant Surgeon of the Second N. H. Volunteers, and was duly commissioned as such, and proceeded at once to join said regiment, which was beyond the limits of this State, and has remained with them as Assistant Surgeon ever since —his family remaining in said town of Danbury. At the time of said enlistment and mustering into the military service of the United States, the quota of men assigned to said town of Danbury by the military authorities of this State, to serve for three years, had been filled, but the quota so assigned to serve for nine months was not then, nor is it now filled.</p> <p>Since the enlistment of the jolaintiff, the selectmen of the town have paid other persons the sum of two hundred dollars each who have enlisted for nine months, prior to the enlistment of the plaintiff, as aforesaid, under a recruiting officer appointed for said town by the selectmen.</p> <p>On the 80th day of October, 1862, the plaintiff called on the selectmen of the town and informed them of his enlistment, and that he had been mustered into the military service of the United States, and requested payment of the two hundred dollars bounty voted by the town, which the selectmen refused to pay, and have ever since refused. All other persons who have enlisted from said town since the aforesaid votes of the town have been paid in accordance with said votes, and among them one commissioned officer.</p> <p>The $5000 raised by the town under the vote of August 12th", 1862, was all expended before the enlistment of the plaintiff, but the town have paid for bounties since the vote to raise $5000, as aforesaid, between seven and eight thousand dollars, under the aforesaid votes of the town.</p> <p>If the Court are of the opinion that the town, on the foregoing facts, is.liable to the plaintiff for the $200 claimed by him, judgment shall be ordered for that sum, in addition to the amount confessed, with costs, and if the town is not liable to pay the §200 the case shall be discharged. Neither party waives the right to go to the jury as to any facts herein stated. The writ, records and other original papers may be referred to in the argument if desired.</p>

On the 23d of June, 1865, the Bank Commissioners applied, under the statute, to a justice of this court for the appointment of an assignee to take charge of the assets and affairs of the White Mountains Bank and for an injunction prohibiting the bank from issuing bills and transacting business. On the 26th of June the bank was enjoined and an assignee appointed.

<p>Plaintiff and defendant liad made a parol agreement, by which plaintiff was to convey to defendant a tract of wild land in part payment tor a farm which defendant was to convey to plaintiff. Plaintiff had conveyed the wild land to defendant, but defendant refused to convey said farm to the plaintiff :</p> <p>Held that plaintiff might rescind the contract and recover the value of the wild land in an action of indebitatus assumpsit for land sold.</p> <p>Held also that where the defendant had sold the wild land for cash, the plaintiff might rescind the original contract, adopt the defendant’s act of selling and ratify the sale and recover of the defendant the price he .received for the land in an action for money had and received.</p>

<p>"Where A. had hired his son to B. for a given time and at'a fixed price, and before the time had expired gave an order on B. to pay to C. the amount then due, or which might become due thereafter for his son’s wages, which order was accepted by B. :</p> <p>Held that after said term of service had expired, and the contract had been fully performed by A., C. might maintain an action for money had and received against B. for the amount agreed to be paid for such labor.</p> <p>And if CL should sell this order to a third person before or after suit brought upon it, the action might still be maintained in the name of C. by his consent, for the benefit of the real owner.</p>

<p>A contract to work for another two years, for one hundred dollars for the first year, and two hundred dollars for the second, is within the statute of frauds, as a contract not to be performed within a year — and a memorandum in writing is necessary.</p> <p>Such a contract is not taken out of the statute by its performance cn one side; but the party doing the work must resort to a quantum, meruit, even if there has been part performance on the other side.</p> <p>In a quantum, meruit for such services, where the defendant insists upon the statute, the plaintiff may recover the value of those services; but the agreement is not admissible to aifeet the amount of damages.</p>

State of New Hampshire — Coos ss. At the trial term of the Supreme Judicial Court holden at Lancaster within and for the county of Coos aforesaid, on the first Tuesday of November, in the year of our Lord one thousand eight hundred and sixty-two : The Grand Jurors for the State of New Hampshire upon their oath present, that for a long time previous to the first day of May, in the year of our Lord one thousand eight hundred and forty-five, there was, and ever since then there…

Trover, for certain current bank bills representing in all one hundred and fifty dollars in money, and of the value of one hundred and fifty dollars.” The selectmen of Colebrook delivered to the defendant a note for $1600, signed by the selectmen for the town — the town being payer and the Somersworth Bank being payee.

<p>In a suit by an administratrix against a sheriff for the default of his deputy, the latter, not having taken upon him the defense of the suit, and having been released by the sheriff, is a competent witness, although the plaintiff did not elect to testify.</p> <p>If an attorney of a creditor, acting under authority, delivers an execution to a deputy sheriff, and assumes to give special directions as to the mode and manner of executing the process, and makes a return upon it which he directs him to sign, and the officer obeys those directions, he is to ho regarded as the agent of such creditor, and the sheriff will not be liable for a defect in such return.</p>

Assumpsit, for money had and received, brought before a justice, and by appeal to this court.

<p>Trover, for a .melodeon.</p> <p>By agreement of parties the case was tried by the court.</p> <p>The plaintiiis introduced in evidence a note dated June 1, 1860, signed by one Ripley, payable to plaintiffs, in six months, and endorsed by one Harrington, in blank, and not as agent. There was a stipulation in the note that it was given for a melodeon, and that the melodeon should remain the property of plaintiffs until the note was paid.</p> <p>One Blood testified that he bought the note of Harrington and was the plaintiff in interest; that before the commencement of this suit he made a demand for the melodeon in the name of the plaintiffs, and that defendant refused to deliver it; that this note was given in renewal of another note which Ripley took up and which was not produced at the trial. Subject to defendant’s exception, Blood testified that he saw the melodeon in Ripley’s possession before it went into the defendant’s possession, and that Ripley then said it belonged to plaintiffs. The defendant introduced a bill of sale from Ripley to himself, showing that he bought the melodeon of Ripley, April 2, 1859; and said Blood testified that the melodeon went into Graham’s possession at the time he bought it of Ripley, as he supposed.</p> <p>The court found the facts to be that plaintiffs employed Harrington as their agent to sell melodeons manufactured by plaintiffs, and to take notes for them like the one given by Ripley ; that Harrington sold one of plaintiff’s melodeons to Ripley; that Ripley sold and delivered it to defendant before Harrington took said note; that it was understood and agreed by Ripley and Harrington, when Ripley bought the melodeon, that it should remain the property of plaintiffs until Ripley paid for it; that Ripley made some payments upon the note, but of a less amount than the amount of the note or the value of the melodeon; that Ripley has not paid for the melodeon ; that Harrington was authorized to sell and did sell the note to Blood for the amount due upon it, which Blood paid before the demand hereafter mentioned ; that Blood brought this suit without the knowledge of plaintiffs, and that plaintiffs do not now know that it was brought; that when the defendant bought the melodeon he supposed that it belonged to Ripley; that before the commencement of this suit, Blood, without any authority from plaintiffs, unless such authority may be implied from the foregoing facts, demanded the melodeon of defendant in the name of the plaintiffs; that defendant then knew that Blood had bought the note and claimed that by buying the note he had acquired a good title to the melodeon and a right to the possession of it; that defendant refused to deliver the melodeon.</p> <p>Defendant claimed that the suit should have been brought in the name of Blood, and that by the sale of the note all the plaintiffs’ title and interest in the melodeon passed to Blood.</p> <p>The writ and note may be referred to in argument.</p> <p>And the court found the conclusion of law upon these facts to be that the defendant is guilty in manner and form as the plaintiffs have thereof declared against him, and assess damages in the sum of $64.11, to which finding defendant excepts.</p> <p>If the finding of the court is set aside, the question is reserved whether this suit could be maintained if the plaintiffs consented that it should be brought.</p>

Debt, on a bond. Plea, the general issue and a brief statement: 1st. Of no award : 2d. That an award made by other referees than those named in the condition of the bond is void for uncertainty; also because it does not appear from the award that all the referees attended and heard the parties, nor that the parties agreed otherwise; also because they did not in fact do so; and because the referees did not decide upon all of the matters submitted to their consideration: and…

<p>Trover, for a pair of oxen.</p> <p>The plaintiffs’ evidence tended to show that the plaintiffs delivered the oxen to one Taylor under an agreement that Taylor should own them when he paid for them; that until he should pay for them they were to remain the property of the plaintiffs; that Taylor never paid for them; that the defendant bought them of Taylor and drove them away; that the plaintiffs notified defendant that they owned the oxen, and demanded them, and defendant declined to give them up. .</p> <p>The defendant’s evidence tended to show that the defendant’s brother James bought the oxen of Taylor; that the defendant was present and assisted James in making the bargain; that $22.50, part of an account which defendant had against Taylor, was given in as part payment for the oxen, that sum being considered as loaned by defendant to James, James paying about $110 to Taylor; that defendant assisted James in making the trade to accommodate him, and to get $22.50 of his account against Taylor ; that Taylor claimed the right to sell the oxen ; that defendant clid not know or suspect that plaintiffs had any claim upon them; that defendant assisted James in driving the'oxen away; that James kept them upon a farm in Dalton, owned by defendant and hired by James and on which they both lived; that James afterwards sold the oxen; that the plaintiff, Ralph Fisk, saw defendant at Lancaster and notified him that plaintiffs owned the oxen and requested defendant to deliver them up ; that defendant said, "If they are yours go and take them that at that time the oxen were on the farm in Dalton.</p> <p>The court instructed the jury that the plaintiffs must show a demand and refusal; that there was a demand and refusal if both parties understood that there was a demand and refusal; that the jury might decide what defendant meant by the answer, "If they are yours go and take them,” if defendant made that answer; that if he meant that he would assent to Fisk’s taking them, it was not a refusal; but that if he meant that Fisk could legally take them if he had a right to take them — if he merely meant that he would sue him if he did take them, it was not an assent, but might be a refusal; that if the defendant’s brother bought the oxen, and defendant assisted him in buying the cattle and driving them away, with intent to apply them to his brother’s use, and with intent that his brother should acquire title in them, and claim them as his own in derogation of the plaintiffs’ dominion over them, the defendant would be as liable as his brother. To which instructions defendant excepted.</p> <p>The verdict was for the plaintiffs, and the defendant moved to set it aside.</p> <p>Ordered that the questions arising in this case be reserved.</p>

<p>Indebitatus Assumpsit, for work and labor.</p> <p>The defendant was one of a committee of a religious society, appointed to repair a church.</p> <p>The plaintiff put the pews in the church, under an agreement with the defendant, that he should be paid §90. There was evidence tending to show that by the agreement, the plaintiff was to take one of the pews in part payment; that, before the work was commenced, the parties understood that §800 was to be raised by sale of pews; that there were to be 40 pews at §20 apiece; that the plaintiff, according to a subsequent agreement between himself and the defendant, made the pews larger than they were at first designed to be, so that there was not room for 40 pews, and a less number was built; that the pews were held by the society at different prices from §17 to §30, averaging more than §20, so as to amount to the §800 ; that no pew had been offered to the plaintiff and he had made no effort or request to obtain one.</p> <p>During the trial and argument, the only grounds of defense suggested by the defendant’s counsel were that the defendant made the contract as agent for the society, and that the plaintiff was to be paid from the proceeds of the sales of the pews, and that no proceeds had been received when the suit was brought.</p> <p>The court instructed the jury fully on those points, and that the plaintiff could recover only the amount which he was to receive in money; that if he was to receive a pew in part payment, he could not in this action, recover damages for not having received it.</p> <p>After the jury had retired to their room, in the forenoon, and the court had adjourned to the afternoon, they sent a message to the court requesting that the instructions in relation to the pew might be repeated. The court directed them to return to the court room, and, in the presence of the counsel of both parties, repeated the instructions requested by the jury. The defendant’s counsel then requested the court to instruct the jury that if the plaintiff was to receive a pew in part payment, the verdict should be for the defendant, because the declaration should have been special on the contract; and the plaintiff’s counsel requested the court to charge that the plaintiff could recover for the pew, if he was to have it for §20, and if the defendant and the society refused to let him have it at that price.</p> <p>The court declined to give any new instructions in that stage of the case, and the defendant excepted. The jury returned a verdict for the plaintiff and the defendant moved to set it aside.</p>

Assumpsit, upon a Warranty of a colt which the plaintiff received from the defendant in exchange for a reed organ. oThe second count was — And whereas afterwards, to wit, on the day and year aforesaid, at Colebrook aforesaid, in consideration that the said plaintiff at the like special instance and request of the said defendant, had then and there delivered to the said defendant a certain other parlor reed organ of great value in exchange for a certain other two years old…

<p>The writ in tbis case is dated August 20, 1862, and was served upon the trustee, August 25, 1862.</p> <p>The plaintiff claims to charge the trustee for the sum of $403, upon the following facts. In January, 1858, certain writs, one in favor of Timothy Osgood, one in favor of the Union Bank, and one in favor of Phillip C. Flanders, and two in favor of the claimants in this case— Abel Proctor & Son — were placed in the hands of the trustee for service, and on them he attached certain^hemlock bark as the property of the principal defendant, the attachment of the claimants being subsequent to the other attachments. Subsequently, one Enoch Page made a demand upon the trustee to give up said bark, and trustee thereupon notified all the attaching creditors of Page’s claim, for the purpose of being indemnified against it, and- the claimants thereupon gave him a bond, and requested him to disregard Page’s claim, which he did. Page then commenced a suit in trover against the trustee to recover the value of said bark, and the claimants, being notified of that fact, appeared and took upon themselves the defence of that suit. The trustee prevailed therein and recovered his costs. The other attaching creditors gave no indemnity to the trustee, and in no way aided or assisted in the defence of the suit of Page against the trustee, though they knew of the pendency of said suit. The suits of the claimants against the principal defendant were prosecuted to final judgment, and executions were duly issued thereon, and within thirty days from the rendition of said judgments one of said executions for a greater amount than the funds in the hands of the trustee was placed in his hands with the request that he would apply the sum of $403, that being the proceeds of said bark, thereon. Executions in favor of the other attaching creditors were also in due time placed in his hands. The trustee being in doubt as to which execution the sum of $403 should be applied on, did not apply the same, and did not return the executions on the return day, but retained them and said sum of $403 in his hands until the present time, and now has said sum in his hands.</p> <p>The questions thus arising were reserved for determination by the whole court.</p>

<p>The pauper law of December 16, 1828, repealed a similar law of 1796, saving only legal settlements “heretofore gained.” Held that a settlement cannot be gained by seven years successive residence, taxation and payment of taxes, when a part of such period expired before, and the residue after, the passage of the law of 1828.</p> <p>The Revised Statutes repealed the pauper law of 1828, and re-enacted its provisions in a new act. This repeal had the same effect upon settlements commenced, but not completed, before that time, as the repeal of the law of 1796 by the act of 1828.</p>

<p>Where the husband and wife together united with a religious society which professed to believe the relation of husband and wife to be unlawful, and, after remaining so united several years, the husband separatéd from them and requested his wife to do so and cohabit with him, which she refused to do or to cohabit with him for more than six months: Held, that the Gase was within the statute, and that a divorce should be decreed.</p>

The indictment alleged that the respondent, at, &c., on, &c., with force and arms, did then and there knowingly and fraudulently convert to his own use, sell and dispose of to oneJDavid B. Story, of said Hopkinton, one yoke of oxen, the property of one John C. Tibbetts, of said Hopkinton, which said oxen had been delivered and entrusted to-said George Eh Goodrich by said John C. Tibbetts for keeping and use, whereby the said George K. Goodrich did commit the crime of larceny…

The defendants were Lemuel Weaver and E. Ripley Sibley, who had done business as partners, prior to 1858. In that year, one Hoyt was admitted with the other two, and a new firm was formed by the name of Weaver, Sibley & Co. In 1859 Weaver retired, and the trustee Conner came in, forming a new firm by the name of Sibley, Hoyt & Conner.

<p>If land is dedicated to the public use and accepted, it cannot under our statute become a public highway until it has been used as such for twenty years.</p> <p>Wkei’e there is a dedication to the public use by the owner of land, twenty years use of it as a public highway is conclusive evidence of an acceptance, and where there is no such dedication, then such use for that term of time, if continuous and adverse, will be conclusive evidence of a right so to use such highway, not only as against the land owner, but also as against the city or town, to be charged with its maintenance and repair.</p> <p>In the most frequented parts of our towns and cities, where the public convenience requires it, side walks for foot passengers may be laid out as a part of the highway, or the right to use them may be acquired by twenty years use' for the purposes of a side walk, the same as to any other part of the highway, and such side walks must be kept in good repair suitable for the travel passing thereon.</p>

<p>This is an application for a writ of habeas corpus, to bring up the body of James P. Eaton, imprisoned under the sentence of J. W. Fellows, Esq., a justice of the peace for the county of Hillsborough, for a contempt in refusing to answer certain interrogatories administered to him by said justice, in taking the deposition of said Eaton in the suit in favor of the Concord Railroad against him; he having refused to answer upon the ground that the answers would disclose the manner in which he proposed to prove his case.</p> <p>The application was made in vacation, to one of the justices of this court, and after notice to the Concord Railroad of the said application, and a hearing before said justice, the proceeding was adjourned by him into this court.</p>

<p>Where bank stock was transferred to the wife on the fifth day of July 1860, it was held that the husband’s marital right to reduce it to possession was not affected by the act of July 4, 1860, as that act did not take effect until August first of that year; and therefore that the husband’s interest in the stock was to be determined by the rules of the common law.</p> <p>Where, in sucli case, the husband survived the wife, and afterwards died without having reduced the stock into possession, it was held that the administrator of the wife, who owed no debts, could not maintain an action for this stock against the husband’s representative.</p> <p>Held also, that, on the death of the wife, the husband was entitled absolutely to the stock, subject only to her debts, and that on liis subsequent death this interest vested in his representative.</p>

Case, for removing the plaintiff from a car of tlie defendant.

Trespass, for breaking and entering the plaintiff’s close in Auburn and cutting down and carrying away wood and timber on the 1st of December, 1861, with continuando to the date oí the writ, which was Feb. 11, 1862.

Bill in Equity, which contained the following statements: On the 18th of February, 1858, Henry E. Hall mortgaged to Charles E. Hall, land in Exeter, to secure a promissory note of that date for $1000, payable to Charles E. Hall on demand, with interest annually. On the 5th of July, 1851, Henry R. Hall paid Charles E. Hall $100, and on the 7th of September, 1852, another sum of $100 for interest on that note and another of the same date.

This was assumpsit, founded upon defendant’s promissory note, dated Nov. 20, 1863, for $22.11, payable to S. Ropes & Co., or order, on demand, with interest. The note purported to be endorsed by the payees. The note was specially declared on, as an endorsed note to plaintiff. The plea was the general issue. 1. The defendant contended that plaintiff was bound to prove the endorsement of the note.

This is a bill in equity brought by the Salmon Falls Manufacturing Company against the Portsmouth Company, find Samuel Hale, the agent of the latter company.

This is a bill in equity brought by husband and wife for the recovery and assignment to the wife of a homestead in the estate of her former husband now deceased. After the bill was filed the plaintiffs moved to amend by making the minor children of her former husband, parties plaintiff. The rest of the facts sufficiently appear in the opipion of the court.

The grand jury found a bill of indictment against the respondent containing two counts'as follows, viz: The grand jurors for the State of New Hampshire,- upon their oath, present that Otis Young, junior, of Plymouth, in the ■ county of Grafton, husbandman, on the twenty-fifth day of July, in the year of our Lord one thousand eight hundred and sixty-five, at Gilford, in the county of Belknap aforesaid, with force and arms, did falsely make and counterfeit a certain writing…

This is a bill in equity, the substance of which is stated in the- same case, reported in 45 N. H. 331; all other facts are sufficiently stated in the opinion of the court.

Case for illegally assessing a tax against tbe plaintiff, in tbe town of Unity. At a town meeting in tbe town of Unity, beld for tbe purpose, on November 6, 1860, -the following votes were passed: Voted, That the town be re-districted into school districts, for tbe purposes of schooling. Voted, That tbe selectmen be the committee to re-district the town into school districts, and report at the next annual meeting.

Trespass by plaintiff, the mortgagee, against defendant, (who is a deputy sheriff) for taking the goods described in the mortgage.

In Assumpsit. Under the common counts, the plaintiff, in his specification, claimed to recover for his labor and services in organizing said railroad company, in procuring subscriptions to its capital stock, and getting it into operation, from January 1, 1845, to January 15, 1846, §5000;-also, for one horse, delivered to Addison Gilmore, for services by said Gilmore rendered to said company, at their request, §300.

This is a writ of review of a writ of entry. The original action was brought by T. W. Little, administrator of the estate of said Britton, against said Biley, to foreclose- a mortgage .upon a farm in Orford in this county, executed November 20, 1837, by one Alexander S. Biley to said Britton, to secure payment of said Alexander’s note of the same date for §2000, payable to said Britton, or order, in two years from date, at the Grafton Bank, in Haverhill, N. H., with interest…

Issues from chancery. The plaintiffs, as administrators of the estate of the late Joseph Bell, brought their bill against the defendants, to foreclose two mortgages made by Joshua Woodward deceased, to said Bell, the first dated Feb. 28, 1842, and the other Sépt. 4, 1844.

This is an action for covenant broken on the covenants of a deed made by Moses Martin, the father of the defendants, to the plaintiff, in which deed he covenanted for himself and his heirs.

Debt on the official bond of Simonds-.aa administrator of the estate of Ebenezer Cheney, jr., deceased. The action is prosecuted by and for the benefit of Bard P. Paige, a creditor of the estate. Simonds was appointed administrator at the July Term, 1863, of the probate court. At the August Term, 1863, the estate was decreed to be administered as insolvent, and a commissioner was appointed.

This was a petition for partition of a tract of land in Concord. The plaintiff, in his petition, described the whole land to be divided, set forth that he was entitled to one undivided half of the whole land, and gave the names of all the others interested with him in the lands, some six in all.

<p>Where a bill in equity is brought against the stockholders of a corporation for the purpose of charging them personally, upon their individual liability, for the debt of the corporation, an equitable contribution is to be made by the court between all the stockholders as far as may be.</p> <p>Our statute makes the liability of stockholders in manufacturing and many other corporations, joint and several for all such debts of the corporation as they are made personally liable to pay, thus making them liable as though they were partners, without any act of incorporation.</p> <p>The rule among partners is, if after applying the assets there are still outstanding liabilities, the partners must contribute in proportion to their shares, or if there is a surplus it will be distributed among them in like proportion.</p> <p>Where a bill in chancery is brought against any of the stockholders of a corporation to compel them to pay a debt of the corporation for which they are individually liable, the general rule is, that all persons liable to contribute should be made parties to the bill.</p> <p>■But this is a rule of convenience, and not of necessity; and where persons interested are out of the jurisdiction of the court, and it is so stated in the b'U and admitted by the answer or proved, it is not necessary to make them parties, but a decree may be made against those over whom the court has acquired jurisdiction, where it can be done without injustice to those who are absent.</p> <p>And where certain of the stockholders within the jurisdiction are insolvent, the plaintiff may” have his decree against such as are solvent for his whole debt, each paying such proportion of the whole debt as his stock bears to the whole amount of stock owned by the solvent stockholders, over whom the court has acquired jurisdiction.</p>

<p>Demurrer to the plaintiff’s declaration. The declaration was as follows:</p> <p>In a plea of the case, for that the said William C. Nichols, on the twenty-third day of December, A. D. 1861, at Concord, in said county of Merrimack, without any lawful or just cause of action, or the least color of right, purchased out of the clerk’s office of our Supreme Judicial Court, fot our said county of Merrimack, our writ of summons against the plaintiff, bearing teste the said twenty-third day of December, returnable at said Supreme Judicial Court, then next to be holden at Concord, in and for said county of Merrimack, on the first Tuesday of February, A. D. 1862, and therein the said William C. Nichols complained, "that at said Hillsborough, on the fourth day of November, A. D. 1861, there was, and for a long time had been and still is, a public and common highway in said Hillsborough, being part of the highway leading from the village of West Henniker to the village of Hills-borough Bridge, known as the new road between said villages, which part of said public and common highway in Hillsborough aforesaid, the said town of Hillsborough during all said time, was and still is bound and liable by law to maintain and keep in good and sufficient repair suitable for the travel passing thereon, so that all persons might and may pass and repass safely thereon, by and with themselves, their horses and carriages. And the plaintiff avers, that, at said Hillsborough, on said fourth day of November, said part of said highway, in Hillsborough aforesaid, was then and there, narrow, sloping, rounding, sidling, uneven, unsafe and dangerous to pass; that there was upon the side of the same highway in Hillsborough aforesaid, and in close proximity to the travelled part thereof a deep and precipitous descent, to wit, of the depth of thirty feet, and that the said town of Hillsborough, during all the time aforesaid, was and still is bound and liable to keep and maintain upon the side of said highway in Hillsborough aforesaid, near to and by said deep and precipitous descent a good and sufficient railing, barrier and protection, to prevent travellers lawfully passing, from going and driving off and being precipitated and thrown down said descent and from injury therefrom, and that said town of Hillsborough during all the time aforesaid, neglected and refused to furnish and provide said railing, barrier and protection, of all which said town of Hillsborough had due notice.</p> <p>And the plaintiff further avers that, on said fourth day of November, at said Hillsborough, George W. Nichols, his son, an infant under the age of twenty-one years, to wit, of the age of eighteen years, was driving and travelling in a lawful, careful and prudent manner, over and upon said part of said highway in said Hillsborough, with the plaintiff’s horse and wagon, the said George W. Nichols being in said wagon, and drawn by said horse, the whole weight of the load upon said wagon, exclusive of said wagon, being less than three tons, to wit, of the weight of five hundred pounds, and no more, and by reason of the said part of said highway, in said Hillsborough, being narrow, sloping, rounding,, sidling, uneyen, unsafe and dangerous to pass as aforesaid, and of the existence of the deep and precipitous descent as aforesaid, and the want of such good and sufficient railing, barrier and protection, the said horse and wagon were driven and thrown down said precipitous descent, and the plaintiff’s said son, George W. Nichols, was precipitated and fell upon the ground and rocks there situate, to wit, a distance of thirty feet, with great violence, and by means of the premises, he was then and there greatly bruised, wounded, and injured, and his head, face, arms, shoulders, back and legs were greatly bruised, strained and wounded, by reason of which the plaintiff has been compelled to expend, and has expended large sums of money, to wit, the sum of five hundred dollars, for surgical and medical aid, and nursing, to support the said George W. Nichols, and relieve him from his great suffering consequent on the injuries received as aforesaid. And the said George W. Nichols has been detained and injured in the prosecution of his usual business and avocations, to the amount of five hundred dollars; and the plaintiff thereby lost the earnings and profits, which he otherwise would have received and derived from the services of the said George W. Nichols, and in consequence and by reason of said injuries received as aforesaid, the said George W. Nichols has been, during all the time since said fourth day of November, and still is lame, sick, weak and disabled from bodily labor, and is likely so to continue and remain during his natural life, whereby the plaintiff will lose the earnings and profits which he otherwise would receive and derive from the services of the said George W. Nichols, during his minority, and by reason of the premises as aforesaid, the wagon of the plaintiff was damaged and broken, and the plaintiff’s horse was thrown down and lamed and otherwise injured, whereby and by reason of all which, the plaintiff has sustained great loss and damage, to wit, the sum of five thousand dollars, all of which is by reason of the insufficiency and want of repair of said part of said highway in said Hillsborough, and without the fault or negligence of the plaintiff.”</p> <p>And on said twenty-third day of December, A. D. 1861, at said Concord, said defendant, without any lawful or just cause of action, or the least color of right, purchased out of the clerk’s office of our Supreme Judicial Court, for our said county of Merrimack, another writ of summons against said town of Hillsborough, bearing teste the said twenty-third day of December, returnable at said Supreme Judicial Court, then next to be holden at Concord, in and for said county of Merrimack, on the first Tuesday of February, A. D. 1862, in the name of George W. Nichols, of Warner, in said county of Merrimack, yeoman, an infant under the age of twenty-one years, who sued said action by said William C. Nichols, his father and next friend, and therein complained : "That at Hillsborough, aforesaid, on the fourth day of No-</p> <p>vember, A. D. 1861, there was, for a long time had been, and still is, a public and common highway, in said Hillsborough, being part of the highway leading from the village of West Henniker to the village of Hillsborough Bridge, known as the new road between said villages, which part of said public and common highway in Hillsborough aforesaid, the said town of Hillsborough, during all said time was, and still is, bound and liable by law to maintain and keep in good and sufficient repair, suitable for the travel passing thereon, so that all persons might and may pass and repass safely thereon, by and with themselves, their horses and carriages; and the plaintiff avers, that at said Hillsborough, on said fourth day of November, said part of said highway in Hills-borough aforesaid, was then and there, narrow, sloping, rounding, sidling, uneven, unsafe and dangerous to pass; that there was upon the side of the said highway in Hillsborough aforesaid and in close proximity to the travelled part thereof a deep and precipitous descent, to wit, of the depth of thirty feet, and that the said town of Hillsborough, during all the time aforesaid, was and still is, bound and liable to keep and maintain upon the side of said highway in Hillsborough aforesaid, near to and by said deep and precipitous descent a good and sufficient railing, barrier, and protection, to prevent travellers lawfully passing from going and driving off and being precipitated and thrown down said descent and from injury therefrom, and that said town of Hillsborough, during all the time aforesaid, neglected and refused to furnish and provide said railing, barrier, and protection, of all which said town of Hillsborough had due notice. And the plaintiff further avers that on said fourth day of November, at said Hillsborough, he was driving and travelling in a careful and prudent manner, over and upon said part of said highway, in said Hillsborough, with a certain horse and wagon he being in said wagon and drawn by said horse, the whole weight of the load upon said wagon, exclusive of said wagon, being less than three tons, to wit, of the weight of five hundred pounds and no more, and by reason of the said part of said highway, in said Hillsborough, being narrow, sloping, rounding, sidling, uneven, unsafe and dangerous, to pass as aforesaid, and of the existence of the deep and precipitous descent aforesaid, and the want of such good, and sufficient railing, barrier and protection, the said horse and wagon were driven and thrown down said precipitous descent, and the plaintiff was precipitated and fell upon the ground and rocks there situate, to wit, a distance of thirty feet with great violence, and by means of the premises, he was then and there greatly wounded and injured and his head, face, arms, shoulders, back and legs were greatly bruised, strained and wounded by reason of which he has been compelled to expend and has expended large sums of money, to wit, the sum of five hundred dollars, for surgical and medical aid and nursing, to support him and relieve him from his great sufferings, consequent on the injuries received as aforesaid, and has been detained and hindered in the prosecution of his usual business and avocations to the amount of five hundred dollars, and in consequence and by reason of said injuries received as aforesaid, he has been during all the time since said, fourth day of November and still is lame, sick, weak and disabled from bodily labor, and is likely so to continue and remain during his natural life, whereby and by reason of all which he has sustained great loss and damage, to wit, the sum of fifteen thousand dollars, all which is by reason of the insufficiency and want of repair of said part of said highway in said Hillsborough, and without thp fault or negligence of the plaintiff.” Which said actions were both duly entered at said February Term of the Supreme Judicial Court, for said county of Merrimack, and remained pending in said court until the February Term, 1863, of said court, when judgment was rendered by agreement in both of said suits, for the sum of two thousand dollars, for all the damages and costs in both suits, and the said judgments were satisfied by the payment of said sum of two thousand dollars by said town to said defendant.</p> <p>Now the said plaintiff in fact saith that at the time of the purchase of the aforesaid writs, against said town in manner aforesaid, the said William C. Nichols had not in his own name, nor the said George W. Nichols in the name of his father and next friend, the said William C. Nichols, any just cause of action against said town, as they alleged in their said writs, but that the said William C. Nichols and George W. Nichols unlawfully conspired, combined, confederated and agreed together by divers false pretences, false representations and other fraudulent means, to induce said town to pay, the said sum of two thousand dollars, and said town avers that being deceived by said false pretences, false representations and other false means, it was induced to pay said sum of two thousand dollars, to said William C. Nichols, and paid out and expended divers other sums of money, to wit, the sum of five hundred dollars for legal services and counsel fees, and the sum of five hundred dollars for the expenses of sundry journeys, taking of depositions and other necessary preparations for the trials of said actions,.by means of all which unjust and malicious suits and conspiracies of the said William C. Nichols and George W. Nichols, said town was put to great cost and trouble, expense and damage, (as it says) the sum of three thousand dollars.</p> <p>Also for that the said William C. Nichols, on the 23d day of December, A. D. 1861, at said Concord, without any lawful or just cause of action, or the least color of right, purchased out of the clerk’s office of our Supreme Judicial Court, for our said county of Merrimack, two writs of summons against the plaintiff, one in his own name, and one in the name of George W. Nichols, of said Warner, yeoman, an infant under the age of twenty-one year’s, who sued the action by the said defendant, his father and next friend, each bearing teste the said 23d day of December, each returnable at said Supreme Judicial Court, then next to be holden at said Concord, in and for said county of Merrimack, on the first Tuesday of February, A. D. 1862, and therein the said plaintiff complained as hereinbefore stated, which said- actions were both entered at said February Term of the Supreme Judicial Court, for said county of Merrimack, and were continued from term to term in said court until the February Term, A. D. 1863, when judgments were rendered by agreement in both of said actions for the sum of two thousand dollars, for all the damages and costs in both of said actions, which said judgments were satisfied by the payment of said sum of two thousand dollars, by the plaintiff to the defendant. Now the said plaintiff in fact saith, that, at the time of the purchase of our said writs against said town in form as aforesaid, the said William. C. Nichols had not in his own name, nor in the name of the said George W. Nichols, in any way, any just cause of action against said town as alleged in said writs, but the said defendant by divers false pretences, false representations and other false and fraudulent means, induced the plaintiff to pay the defendant said sum of two thousand dollars and sundry other sums, to other persons in this behalf, to wit, the sum of five hundred dollars paid out for legal advice and services, and the further sum of two hundred dollars paid out for incidental expenses arising out of said actions, by all which unjust and malicious suits, by reason of the aforesaid false pretences, false representations and other fraudulent means of the said defendants, the plaintiff was put to great cost, expense and damages, (as it says) the sum of three thousand dollars.</p> <p>Also for that the said defendant, on the 23d day of December, A. D. 1861, at said Concord, purchased out of the clerk’s office of our Supreme Judicial Court, for said county of Merrimack, two writs of summons against the plaintiff, one in his own name and one in the name of George W. Nichols, of said Warner, yeoman, an infant under the age of twenty-one years, who sued the action, by the said defendant, his father and next friend, each bearing teste the said 23d day of December, each returnable at said Supreme Judicial Court, then next to be holden in and for said county- of Merrimack, on the first Tuesday of February, A. D. 1862, and therein the said plaintiff complained, as herein before stated, which said actions were both entered at said February Term of the Supreme Judicial Comí, for said county of Merrimack, and were continued from term to term in said court until the-February Term, A. D. 1863, when judgments were rendered by agreement in both of said actions and the said judgments were satisfied'by the payment of said sum of two thousand dollars, by the plaintiff to the defendant. Now the said plaintiff in fact saith, that, at the time of the purchase of our said writs, against said town, in form as aforesaid, the said George W. Nichols, was not then and there so greatly bruised, wounded and injured, and his -head, face, arms, shoulders, back and legs were not so greatly bruised, strained and wounded, nor by reason thereof has he or the said defendant been compelled to expend, nor has he nor have they expended large sums of money, for surgical and medical aid and nursing, to support him, the said George W. Nichols, and relieve him from his great sufferings consequent upon his injuries, nor ivas he detained and hindered in thé prosecution of his usual business nor did he continue lame, sick, weak, and disabled from bodily labor, nor was he likely so to continue and remain during his natural life, nor was the said defendant deprived of the earnings and profits, which he otherwise would have received and derived from the services of the said George W. Nichols, during his minority, by reason of said injuries, as he has alleged in his said writs of summons hereinbefore set forth, but the said defendant by divers false pretences, false representations, and other fraudulent means, induced the plaintiff to pay said sum of two thousand dollars, and other sums, to wit, the sum of five hundred dollars paid out for legal services, and the further sum of two hundred dollars paid out for incidental expenses arising out of said actions, by all which unjust doings and by reason of the aforesaid false pretences, false representations, and other false and fraudulent means of the said defendant, the plaintiff was put to great cost, expense and damage, (as he says) the sum of three thousand dollars.</p> <p>Also for that the said defendant, at said Concord, on the day of the purchase of this writ being indebted to said town of Hillsborough, in the further sum of three thousand dollars, for so much money before that time, had and received by the defendant to the plaintiff’s use, in consideration thereof then and there promised to pay said town said sum; yet though requested has never paid the same, to the damage of the said plaintiff (as it says) the sum of five thousand dollars.</p>

<p>Upon a petition for a new highway, selectmen and county commissioners may lay out a roaS in part new and in part over and upon an existing highway.</p> <p>Where a report of county commissioners laying out a new highway is recommitted for want of notice to certain land owners of the hearing before the commissioners, such land owners have the right to be heard before the commissioners upon the general question of the laying out, and are entitled to a reasonable opportunity to hear the evidence and cross-examine the witnesses of the petitioners as well as to offer evidence for themselves.</p>

Tins was a petition for the abatement of taxes, assessed against the said bank in the general assessment of taxes by the assessors of said city, for the year 1864, on the following described property, as the property of said bank, to wit, one lot of land and barn on Pearl street, valued at three hundred dollars ; one half Barrett house on School street, valued at four hundred dollars; fifty-seven shares in the Pennichuck Water Works, valued at fifty-seven hundred dollars.

<p>The third section of the act of July 9,. 1862, empowering towns to raise and appropriate money to encourage voluntary, enlistments, does not authorize a town to pay money to one already enlisted into the service of the United States, merely to procure his transfer from the quota of one town to the quota of another town in this State.</p>

This was assumpsit on account annexed, and the suit was brought September 3, 1862, to recover the sum of forty-five dollars for work and labor by the plaintiff, and money paid by him for other work and labor and materials found in rebuilding a bridge and repairing the highway connected with it, in the town of Chester, in August, 1861.

<p>An article in a warrant for a town meeting was, to see if the town would raise @3-10.00, or any other sum, for each volunteer who may enlist for three years, or during the war; and the town voted “to pay those who have enlisted since the date of the warrant, and those who may enlist to fill the quota of this town under the late call of the President for volunteers for three years, or during the war, the sum of @310.00, and authorize the selectmen to hire money for that purpose;” and it was held that' this must be regarded as a vote to raise that sum for each volunteer.</p> <p>Where the selectmen of the town borrowed of the plaintiff @3100.00, and gave the note of the town for it, reciting a vote to pay @310.00 for each volunteer for three years, or during the war, and that the money was advanced for the purposes of that vote, it was held that until the contrary was shown, it is presumed that the selectmen acted rightly, and borrowed the money for a lawful purpose, which would be for future enlistments only.</p> <p>Held, also, that the vote to pay for future enlistments was valid, although the part relating to past enlistments was not.</p> <p>The legislature have power under the Constitution, to authorize towns to raise money to pay bounties to volunteers.</p>

This is a bill in equity brought by the city of Portsmouth against the trustee, under the will of Sarah C. Green, and her brothers and sister, for whose benefit the trustee held a certain fund. The interest of the plaintiff arises from the fact that Statira Shores, one of the beneficiaries, is a pauper, and supported by said city, and the suit is brought to compel the trustee to apply this fund to the support of the said Siatira.

Case for personal injuries caused by a defect in a highway, by reason of certain logs within it, which caused an obstruction, and upon which the plaintiff’s wagon struck as he was passing, whereby he was thrown to the ground and injured. The accident happened September 26, 1863, and the suit was brought June 25, 1864, and defendants contended that the claim was stale.

<p>Where, upon a bill in equity brought by A. against B., a temporary injunction was issued upon condition that, before it was served, A. should file a bond of indemnity satisfactory to the clerk, with a condition that A. should pay and satisfy all such damages as m'ght be occasioned to B., in case the bill in equity should be determined against A., and, before the service of the injunction, which was on the 17th day of August, 1860, a bond with such a condition was filed and was accepted by the clerk as satisfactory for the time upon the express understanding that a new bond should be filed if required, and, it being required, a new bond with a condition in the same terms was filed on the 27th day of the same August: Held, that the condition of the second bond covered all the damages occasioned to B. by reason of the injunction.</p> <p>An injunction forbidding A. to carry any passengers to or from a certain depot in the town of E., foi’bids him to carry passengers from that depot to places outside of such town, and from such places to that depot.</p> <p>In an action at law by B. against A. and his sureties upon such a bond to recover damages for a breach of its condition, in the absence of fraud, the defendants are concluded by the final decree in equity, so far as the same matters come in question.</p>

<p>Under a residuary devise to the testatrix’ cousins and the children of her mother’s cousins, to be equally divided among them, the devisees take^er capita unless something in the will indicates a different intention on the part of the testatrix.</p> <p>And so, under such a devise “unto my cousins and to the children of my mother’s cousins to be equally divided between them.”</p>

<p>Where several suits are pending against the same person whose property is attached upon them all, if the first attaching creditor intentionally take judgment, though by agreement with his debtor, on claims which were not recoverable under any count in his declaration, that will dissolve his attachment as against the subsequent attaching creditors.</p> <p>Where such first attaching creditor, under such an agreement, took judgment against his debt- or, for goods sold and delivered after the date of his writ and of the attachments, to the amount of $87.88, that will dissolve his attachment as against subsequent attaching creditor’s.</p> <p>Where such first attaching creditor brought his suit upon an account against his debtor upon which were credits to an amount exceeding $300, at the date of the writ, and afterwards made an agreement with his debtor by which a large part of such credits were applied to the payment of a claim which he had purchased against his debtor after the attachments were made and took judgment for all the balance, and made an effort to collect the same, this will dissolve his attachment as against subsequent attaching creditors.</p> <p>Where the first of several attaching creditors intentionally takes judgment against his debtor for a sum clearly not due, or for claims not recoverable under his declaration, or for claims not intended to be covered by his writ, or included in his suit at the time of the attachments, it will dissolve his attachment as to subsequent attaching creditors.</p> <p>Any proper amendment may be made to the plaintiff’s declaration which does not change the form or the cause of action, without affecting his attachment. /</p> <p>The rights of subsequent attaching creditors cannot be affected by agreements or admissions made by the debtor with a prior attaching creditor after the attachments are made.</p> <p>If a prior attaching creditor, in consequence of mere mistake and inadvertence, unintentionally takes judgment for too large an amount, that will not vitiate his attachment as to subsequent attaching creditors.</p> <p>Where a prior attaching creditor, in taking his judgment, does any act the direct tendency and legitimate results of which will be to injure the rights of a subsequent attaching creditor, and to diminish his security upon the debtor’s property, to which he has fairly become entitled by his attachment, the law will pronounce such wrong act a fraud upon such subsequent attaching creditors, and visits that fraud with its ordinary penalty; that is, it makes the judgment into which the fraud enters, void as to all those injured or intended to be injured by it, unless it be made to appear affirmatively that such act was the result of accident or mistake, of mere inadvertence, and was not knowingly or intentionally done.</p>

Petition for a new highway. The easterly terminus was described in the petition as 'a point in the highway in said Milton leading from Rochester in said county to Wakefield in our county of Carroll, one and one half rods northeasterly from a rock maple tree spotted and marked II., said tree standing near where the Branch road (so called) intersects with said last named highway in said Milton.” The defendant moved to dismiss the petition for defective description of this…

Indictment for want of repairs of a highway in the city of Dover, and for obstructions to the same by large piles of stones by which it was filled up and made narrow.

Writ of entry dated Feb. 3, 1865, to recover one undivided fourth part of a tract of laud in Meredith, being the westerly half of a tract of land called the Crockett place. Plea, the general issue. For the purposes of this case the parties agree upon the following facts: Joshua Crockett, senior, was the owner of the whole lot, of which the demanded premises constitute the western half, on the 15th day of December, 1814, and from that time until his decease in Januax-y, 1815.

In Equity. Bill for specific performance of a contract for the conveyance of certain real estate in Gilford.

This action was commenced by Augustus Burpee as administrator of Joshua F. Burpee, deceased. Augustus Burpee resigned his trust as administrator, and Young was appointed as administrator of the estate of said Joshua F. in March, 1866, and, at the commencement of the present term, notice was given upon the docket of the resignation of said Burpee, and said Young appeared as administrator as the plaintiff of record.

Assumpsit for goods sold and delivered, §400.00; for mossy bad and received, §100.00. Plaintiffs’ specification was for two 3-4 pipes Holland Gin, one cask London Porter, one cask Scotch Alo, and 1000 Cigars, under an account annexed. Under the money count, they specified a note dated February 2, 1863, for $509.75, dated and made payable in Boston,' signed by defendant, payable to his own order on six months, and by him indorsed.

Trespass. The.declaration alleges that the defendants dug out, cut and severed the plaintiffs’ lead pipe, by means of which for a long time before they had drawn water for the supply of their several residences, thereby stopping the supply. All the plaintiffs, except Brown, came into court with the following petition: ■ SUPREME JUDICIAL COURT. Carroll ss. April Term, 1866.

Assumpsit. The defendant had made in writing a bid for carrying the United States mail on a certain route; his bid had been accepted and he had made a contract with the United States to carry the mail, and the plaintiff had signed the bid and contract as surety for the defendant.

Petition of the town of Marlborough for discontinuance of a highway laid out in 1861. The petition was referred to the county commissioners : upon their report questions were reserved; their report was recommitted, and at this term the commissioners ■ report that they are of the opinion that the prayer of the petitioners ought to be granted for the following reasons, viz : 1.

Indictment. The indictment alleged that defendants in the night time did break and enter the store of one Aldrich, with intent to steal the goods and chattels of said Aldrich, and that they did steal, &c. Subject to the defendants’ exception, one Mrs. Bellows was allowed to testify that she lived near said store, and that, on the night in question, between one and two o’clock, she heard a carriage drive from the square near her house; that she should say that it started from…

The case was referred, and tbe referee’s report was in substance as follows: The plaintiff’s action is trespass. His writ is dated January 22,1864.

Assumpsit. The declaration contained the general money counts including money had and received for $100.00. Plea, general issue. David Meserve, the real plaintiff in interest, caused the action to be commenced and entered at the April Term, 1863, in this county, when Mr. Ray appeared in the case as attorney for defendant, and on his motion in behalf of defendant, a specification of plaintiff’s claim was ordered to be filed in 30 days, and the action continued.

This is an action on the case for deceit, by which the plaintiff was induced to purchase of the defendant a farm at a great price, by means of which he was defrauded. There were three counts in the declaration, to all of which there was a demurrer and joinder.

Assumpsit. The action was referred and the referee made the following report: This suit is founded upon the following promissory note : Canaan, June 17, 1857. Eor value received we jointly and severally promise to pay George Harris, or order, two hundred dollars, on demand, with interest annually. Clark & Elliott, Josiah Clark.” On which note is endorsed, July 2, 1860, one hundred and fifty dollars.

<p>Assumpsit. In a plea of the case for that one Clark G. Batchelder, at said Plymouth, on the 30th day of January, in the year of our Lord eighteen hundred and fifty-eight, by his promissory note of that date, for value received, promised the said defendant to pay him, or his order, thirty-seven dollars, on demand, with interest annually, and the said defendant then and there endorsed said note, waiving demand and notice, and delivered the same to said plaintiff, and in consideration thereof promised to pay the plaintiff said note according to the tenor thereof. Yet, though requested, has never paid the same.</p> <p>The note declared on was proved.</p> <p>It appeared that the said Clark Gf. Batchelder had some dispute with one Kinsley H. Batchelder, and that they had a reference of all demands between them to two referees, who had a hearing December 31, 1860, and made an award in favor of said Clark Gk, at which hearing said Kinsley H. presented the note in suit against said Clark Gf. : but the same was not then endorsed by said Bartlett, and was disallowed by the referees, upon the ground that it had not been transferred to said Kinsley II. After said award was made and the parties had ascertained that this note was not allowed, said Clark Gf. agreed that if said Kinsley H. would get the said note endorsed by said Bartlett, and then deliver it up to him (said Clark Gf.) he would endorse the amount of the same upon said award, which was much larger than the amount of said note. Said Kinsley H. agreed that he would get said note endorsed by said Bartlett, and would then deliver it to said Clark Gf., and would have it endorsed upon said award. After this said Kinsley H. went to said Bartlett, and made an arrangement with him to endorse the note, waiving demand and notice, which he then did, and the amount of the note was allowed upon an account which said Kinsley H. had against said Bartlett. Thereupon said Kinsley H. carried said note immediately to the plaintiff, and sold it to him, who bought it in good faith, and endorsed the amount of it on a note which the plaintiff then held against said Kinsley BE. without notice of the negotiations and arrangements between the two Batchelders in relation to the note.</p> <p>Neither the amount of this note, nor any part thereof, was ever endorsed on said award.</p> <p>The above facts being found, the court ruled, as matter of law, that the plaintiff was entitled to recover. To which ruling the defendant excepted, and the questions of law thus raised were reserved.</p>

<p>In an action on a joint and several bond against all tbe obligors, tbe plaintiff cannot bave judgment against all tbe defendants otherwise than jointly.</p> <p>Where a judgment has been recovered in an action on such a bond against the three obligors, and debt is brought upon that judgment against one only of the-three, the non-joinder may be pleaded in abatement.</p> <p>Where a judgment has been rendered at a trial term of the Supreme Judicial Court, it is within the power of the court rendering the judgment to vacate it at a subsequent term for sufficient cause shown.</p>

Case, for damage eaused by the insufficiency of a highway, Jan. 1, 1861. The plaintiff claimed that the highway had been established by prescription.

This is an action of replevin for fifty barrels of flour. The writ is dated Sept. 30, 1864.