Volume 47 — New Hampshire Reports

Case against the defendant, a surgeon, for neglect and unskilful treatment of the plaintiff’s fractured leg. The jury returned a verdict for the plaintiff, which the defendant moved should be set aside and a new trial granted, because of newly discovered evidence of a controlling character.” Evidence was taken and submitted on the motion. The defendant had the right to a new trial by review under the statute.

Writ dated August 13, 1860. The declaration is as follows : In a plea of the case for that the plaintiff on a certain day, to wit, on the twenty-seventh day of January, A. D. 1851, duly conveyed to said Peter Woodbury and one Elias H. Woodbury certain parcels of land situate in the aforesaid Wilmot, and in part consideration thereof the said Elias H. and Peter Woodbury, by their promissory note, dated January 27, 1851, promised to pay said plaintiff or order, two hundred and…

This is an action of assumpsit. The writ is dated September 6, 1864, and was served on the 19th day of the same month. On the day of the date of the writ the plaintiff directed W. W. Flanders, Esq., to make the same and have it served at once. He made the writ on that day, but not having revenue stamps at hand, he did not stamp the writ until two days or more after, but the appropriate stamp was duly put on the writ and duly cancelled before the same was served.

This is an appeal from a decree of the judge of probate for the county of Merrimack, declining’ to take jurisdiction of the probate of the will of Paul K. George, upon the ground that the judge was interested in the estate as husband of an heir or legatee, so as to give jurisdiction to a judge of an adjoining county.

Trespass, quare clausum fregit, and carrying away plaintiff’s grass. Plea, general issue. The action was tried by the court and the following facts found: The plaintiff is the widow of Daniel Locke, late of Warner, deceased, who owned the premises in question at the time of his death, in 1858.

Libel for divorce. The cause alleged was conviction in the district court of the United States for the district of Massachusetts, and imprisonment in the State prison in Massachusetts under sentence on that conviction.

Assumpsit, founded upon plaintiff’s book account, annexed to tbeir writ amounting to $18.25. The plea was tbe general issue. There was no set off filed. The plaintiff’s evidence tended to show on their part, they were partners in business, in Brookline, in this county, and that the goods charged in their writ had been sold and delivered to the defendant.

<p>It is agreed by the parties that this is an action of debt on a bond in the form, and with the condition, prescribed by statute, signed by the defendant Chase as principal, and the other defendants as his sureties, and given for the purpose of obtaining the release of said Chase from arrest on an execution recovered by the plaintiffs against him; that Chase did not take the oath prescribed for the ease and relief of poor debtors within one year from the date of the bond; but that on the day next after the expiration of said year he went to the jail and jailer’s house connected with the jail, at about ten o’clock, A. M., and informed the turnkey and jailer’s wife, the jailer himself being absent, and they having the charge of the jail, and of the prisoners therein for him in his absence, that he had come to the jail to surrender himself on said execution as required by the condition of said bond ; that said Chase remained in and about the office or public room connected with the jail, and in which persons having occasion to visit the jail were accustomed to be received, until a short time before twelve o’clock, noon, of the same day; that at that time a brother of said Chase living about half a mile from the jail, came to said public room and invited the defendant Chase to go to his said brother’s house and take dinner there; that this invitation was given to said Chase in an open, public manner; that the said defendant Chase then inquired of the turnkey and wife of the jailer whether there would be any objection to his going to the house of his brother to take dinner — to which they replied that they could not tell, but that he must judge for himself; that said Chase then went from the jail, leaving it a few minutes before twelve o’clock, noon, and took dinner with his brother and returned about one, or half past one o’clock, P. M., on the same day, and remained in and about the said office and public room openly and with the knowledge of the turnkey and wife of the jailer from the time of his return till after four o’clock, P. M., of the same day, and that no person appeared at said jail at any time on said day, having execution against said Chase, or any process for his arrest or with the intent and purpose of ascertaining whether he was at said jail from twelve o’clock, noon, till four o’clock, P. M., on said day.</p> <p>It is agreed that judgment be ordered by the court for the plaintiffs or the defendants, as it may be held that the defendants are or are not liable upon the bond on the foregoing facts.</p> <p>Lord (& Sulloiuay, for plaintiffs, contended that a surrender at one, or half past one, o’clock, was in no sense a surrender at twelve, and remaining until three o’clock, and they cited Sewell v. Holbrook, 22 N. H. 269; French v. Wingate, 17 N. H. 264; and also 22 Pick. 571, 573.</p> <p>contended among other things that the only object of the statute in this provision is, that, after the debtor has so surrendered himself, he shall remain at hand within the reach of the jailer or other officer, coming to the jail with process for his arrest during the hours limited. He must be considered to be at the jail, if in its vicinity, with the jailer’s knowledge, ready for the arrest.</p> <p>The primary meaning of the word "at,” among others, is "near to,” vide Webster’s Dictionary. The statute is to receive a reasonable construction. The debtor, though required to be at the jail, is not, therefore, necessarily or upon any reasonable view of the intent or spirit of the act, to be in it or in contact with it. Is he to remain constantly in the presence of the jail-keeper ? to- confine himself to any particular room? to the limits of the jail building, or of the jail premises? or may he step into the street, or to a friend’s house in the neighborhood, or elsewhere in the vicinity if he has occasion, provided always he informs the jailer of his movements so that he may be in readiness for the arrest, when process for it is produced ?</p> <p>If in good faith the debtor, after surrendering himself, remains about the jail, keeping the jailer informed of his movements, when he has occasion to go out from under his eye, and is at hand ready for arrest in case the creditor’s execution is presented, it would seem to be all that the statute aims at in requiring him "to remain at the jail.”</p>

<p>Trespass cle bonis. The following facts are agreed for the purposes of this case:</p> <p>The plaintiffs are, and for several years have been, a railroad corporation duly organized under the laws of this State, owning and operating therein, in connection with the residue of what was formerly the Peter-borough and Shirley railroad, about ten miles of railroad extending from Mason Tillage to the State line. This piece of road is operated only in connection with and as part of a line extending from Mason Tillage to Groton Junction, the whole of which is owned and operated by the plaintiffs, and.was so in 1865. The defendants were selectmen of Mason in the political year 1865-6, and as such, on or about the first day of April, 1865, through one of. their number called upon the plaintiffs’ servant, L. J. Spalding, then acting as road-master of plaintiffs’ said road, for an account of the personal property of the plaintiffs in Mason liable to be taxed there. Said Spalding, having no authority on that subject and disclaiming all knowledge of what personal property of the plaintiffs was liable to taxation in Mason, gave to the defendants a statement of all the wood, sleepers and logs of the plaintiffs situated in said Mason at that time. This property had all been purchased by the plaintiffs for the express purpose of operating and repairing their said railroad therewith, and was subsequently used by them for that purpose and no other.</p> <p>Upon the property thus described to them by said Spalding, the defendants assessed against the plaintiffs a tax of $115.82, assessing it at the same rate in proportion to their valuation thereof as other personal property in town, and committed the said tax for collection to James Taft, the collector of Mason. Said Taft, on the twenty-third day of February, 1866, by virtue of the defendants’ warrant, seized the wood in the plaintiffs’ declaration mentioned, for non-payment of said tax, and advertised the same for sale on the 28th day of February, 1866. Thereupon the plaintiffs, on said 28th day of February, paid said Taft under protest, said tax of $115.82, and costs of the distress taxed at $3.71, amounting in all to $119.53.</p> <p>The property on which said tax was assessed was not taxed to the plaintiffs elsewhere than in said Mason as personal property disconnected from their railroad, nor was it taxed to any one else than the plaintiffs in said Mason. The plaintiffs claim that said property being on hand for the sole purpose of operating and repairing their road, and having been used for that purpose was only taxable as part of their road, the same as the sleepers in the track, the bridges, cars and engines used in operating the same.</p> <p>If, in the opinion of the court, said tax, upon the foregoing statement of facts, was legal, judgment is to be rendered for the defendants for their costs. If otherwise, judgment is to be rendered for the plaintiffs for the costs of distress, $3.71, and such portion of the tax as may be holden illegal, with interest from February 28, 1866, and costs of suit.</p> <p>It is, however, further agreed, that either party shall have the right to try any question of fact by the jury that may be deemed material, without prejudice from anything contained in the foregoing agreement.</p> <p>The case finds that the wood, sleepers and logs, upon which the tax in controversy was assessed to the plaintiffs by the defendants, had been purchased and were holden by the plaintiffs for the express purpose of operating and repairing their railroad therewith, and were subsequently used by them for that purpose and no other. Hence the only question to be decided is, whether a railroad in operation is legally taxable for the wood, sleepers and lumber it may have on hand on the first day of April for the purpose of running and repairing its road, as personal property distinct from the corporation, in the several towns where such wood, sleepers and lumber may happen to be found ?</p> <p>We submit it is not; and that the tax assessed by the defendants against the plaintiffs, under the circumstances set forth in the agreed case, was wholly unauthorized and illegal.</p> <p>I. The wood, sleepers and lumber in question having been purchased and being holden as they were for the sole and express purpose of operating and repairing the plaintiffs’ railroad, had become annexed to anel constituted a part of that road by destination and accession within the established decisions of the common law, as well as within the spirit and scope of the statute for the taxation of railroads, and were no more taxable as personal property, distinct from the corporation itself, than its engines and cars, and the sleepers and iron in its track. JDassell v. Reed, 6 Greenl. 222 ; Eittredge v. Woods, 3 N. II. 503 ; Oonner v. Ooffin, 22 N. H. 542; Daniels v. Pond, 21 Pick. 327 ; Middlebroolc „ v. Oorwin, 15 Wendell 169 ; Parsons v. Gamp, 11 Conn. 525 ; Ripley v. Paige, 12 Vt. 353 ; Walher v. Sherman, 20 Wendell 639 ; Goodrich v. Jones, 2 Hill 142; Sawyer v. Twiss, 26 N. H. 346; Farrar v. Staclcpole, 6 Greenl. 157 ; Fuller v. Walter, 28 Me. 545 ; Hare and Wallace’s notes to Elwes v. Mawe, 2 Smith’s Leading Cases 196, 215-221; Snedecher v. Warring, 2 Kernan 170 ; Wadleigh v. Janvrin, 41 N. II. .503, and numerous authorities there cited; Pierce v. Emery, 32 N H. 484.</p> <p>II. Even if the wood, sleepers and lumber had not become part of the road by destination and accession, as we submit they most clearly had, still they were not taxable to the corporation as personal property. The statute provides for the taxation of the corporate property of railroads in a specified mode, by the justices of the Supreme Judicial Court, and no property of any railroad, real or personal, is taxable to tbe corporation in any other way, except it be "real estate” not "used for their road and other ordinary and usual purposes of the corporation,” or "for which they have not expended any part of their capital stock” so that it can properly be-included in the taxation by the justices. Compiled Statutes, 118, 114. The statute provision for taxing the whole corporate property in a particular mode, obviously excludes any other taxation not expressly provided for; and the express provision for taxing real estate otherwise under certain circumstances, clearly excludes the idea of taxing any thing else than such real estate otherwise than by the justices. Bxpressio unius est exclusio alterius. Broom’s Legal Maxims, 515 ; Gregory v. Des Anges, 3 Bingham’s N. C. 85 ; Atkinson v. Fell, 5 Maulé & Selwyn, 240; Gates v. Knight, 3D. & E. 442, 444; Alban v. Fyke, 5 Scott N. R. 245 ; Hex v. North Nibley, 5 D. & E. 21; Newton v. Holford, 6 Queen’s Bench, 926: Rex v. Woodland, 2 East. 166; Rex r. Bell, 7 D. & E. 600; Rex v. Gunningham, 5 East 478; Governor, Sc. v. Richardson, 3 Burrows 1344; Dewhurst\. Fiel den, 8 Scott N. R. 1013, 1017; 2 Dwarr. Stats. 712, 713 ; State v. Ferguson, 33 N. H. 424.</p> <p>III. The injustice and unreasonableness of subjecting the materials holden by a railroad, essential to the performance of its duty to the public, to a separate tax, independent of the general tax to which the whole corporate property is liable, show clearly the absurdity and illegality of the tax in question.</p> <p>Fuel to create motive power, sleepers to keep the track in proper condition, and lumber to repair the bridges and crossings, are just as essential to the effective operation of a railroad, just as indispensable to enable it to discharge its duties to the public, as its engines and cars, the rails and sleepers already in its track, and the lumber already constituting its bridges and crossings ; for the railroad could not be run a day or an hour without them. From the nature of the case, these articles must be procured in advance and be kept on hand while they are manufactured and become seasoned and fit for actual use. They are purchased with the capital of the road, and are used only for its ordinary and necessary purposes. There would be the same propriety in taxing a railroad for its engines and cars, without which it could do nothing whatever; for the rails, sleepers and chairs composing its track, without which the engines and cars could not be moved; or for the money on hand with which to pay the daily wages of its employees, as for the wood to run its trains, the sleepers to renew its track, and the lumber to repair its bridges and crossings; for the former are no more indispensable to its operations, no more essential to enable it to discharge its duties successfully as a common carrier of passengers and freight, than the latter; and the one class of articles is just as inseparable from the aggregate corporate property as the other.</p> <p>The entire corporate property, with the exception of certain real estate, is by law required to be taxed by the justices in a particular mode and at a particular rate. If the towns can tax the wood, sleepers and lumber, they might also tax the engines, cars, rails, money on hand, and whatever else they chose to separate from the bulk of the corporate property, in a different mode and at a different rate. Thus the manifest intent of the law would be defeated, and the railroad be compelled to submit to as many different rates of taxation, and to the caprice of as many different boards of assessors, as there should happen to be towns in which property of the corporation might be found on the first day of April, besides being subjected almost inevitably to excessive and double taxation.</p> <p>The only question arising in this case is, whether the tax in question was properly assessed.</p> <p>Chapter 2351 of Pamphlet Laws, page 2254, section 1, provides that all "wood, bark, timber, logs and lumber manufactured or otherwise, shall be taxed for its full value to the owner or owners thereof, in the town or towns where the same shall be on the first day of April in each year, if such owner or owners shall then reside in such town, otherwise to the person or persons having the same in their care or custody on the day aforesaid. And any person or corporation which shall permit wood, bark, timber, logs and lumber to belaid on its premises shall be deemed to have the same in its custody for the purposes aforesaid,” &c. By section third of the same chapter certain acts therein specified, and all acts and parts of acts inconsistent with this act are repealed.</p> <p>The provision of the law, under which it is claimed this property in question was exempted from taxation, is as follows : "Every railroad corporation shall pay to the treasurer of the State on or before the first Wednesday of September annually one per cent, on the value on the first day of January preceding, of that part of its capital stock expended within this State,” &c. Compiled Statutes, sec. 4, 113 ; Laws of 1843, chap. 43, sec. 3 and 4. The particular property liable to be taxed, the mode of assessing and collecting such taxes, is fixed by the statute.</p> <p>Under section 4 of the Compiled Statutes, therefore, only the capital stock of railroad corporations within this State could be taxed, and until the passage of chapter 991 of the Pamphlet Laws, Compiled Statutes, section 8, page 116, nothing else but their capital could be taxed; but the provisions of that chapter are plain and explicit. It makes no distinction whatever whether timber, wood and lumber is owned by a person or a corporation, and no distinction between a railroad and a manufacturing corporation. It provides that all such property shall be taxed to its owner on the first day of April in each year at its full value.</p> <p>It was clearly the intention of the legislature, by the act of 1850, by the act of June, 1858, chapter 2121, Pamphlet Laws, page 2018, and by chapter 2351, before cited, to subject this kind of property, which before this time had escaped it, to the burdens of taxation.</p> <p>it cannot be claimed that the wood, lumber, timber and logs, which the plaintiffs had on hand on the first day of April, 1865, was purchased with a part of their capital, or that a part of their capital was invested in it. It was purchased from the earnings of their railroad for the purpose of its repair and operation, and the expenses incurred in its purchase were part of the necessary running expenses.</p> <p>But even if it was purchased with part of the capital stock, it cannot avail, because the provisions of chapter 2351 are inconsistent with section 4 of the Compiled Statutes, before cited, and operates in so far as a repeal and modification of the provisions of that section.</p> <p>The arguments of the plaintiffs as to the injustice and unreasonableness of subjecting this kind of property to taxation apply with equal foice to the case of a farmer who has on hand more than fifty dollars worth of lumber which he has purchased for the purpose of repairing his buildings or making fences on his farm, and yet it will not be claimed that such property would be exempt from taxation. There is the same reason for exempting the horses and coaches employed in carrying the mail, on account of their duty to the public, as in exempting the property in question, because it is used in repairing a railroad which is a public accommodation.</p> <p>It is a sufficient answer to all these arguments to say that the legislature in their wisdom have enacted a law subjecting it to the burdens of taxation. There may be very strong reasons why property now exempt should be taxed, and why property now taxed should be exempt, but as we have seen, the subject is one of legislative enactment entirely, and the terms of the statute must be strictly followed.</p>

Where the injury is irreparable, not susceptible of being adequately compensated by damages, or such as from its continuance or permanent mischief, must occasion a constantly recurring grievance which cannot be otherwise prevented; as where loss of health, loss of trade or business, destruction of the means of subsistence, or permanent ruin to property may or will ensue from the wrongful acts; in every such case a court of equity will interfere by injunction,” &c. Fowler,…

Assumpsit upon a promissory note. Plea the general issue. The note declared on is as follows : Nashua, June 13, 1861. Ninety days after date, I promise to pay to the order of Albert Merriam, two hundred dollars, value received, payable at the Indian Head Bank, Nashua. (Signed,) War. P. Yorke. And on the back, Jefferson Rockwood. It appeared in evidence that at the date of the note, Yorke and Rock-wood resided in Nashua, N. H., and Merriam in Lowell, Mass.

<p>This is an appeal from the decree of the judge of probate allowing the account of M. Currier as guardian of Walter II. French.</p> <p>The grounds of the appeal as filed are :</p> <p>I. Because the said guardian in said account has not charged himself, nor was he charged by said court with the full amount of dividends received by him from bank stock and gas stock transferred to him by Abram French, administrator of the estate of Walter French, late deceased ; said stocks being received by said guardian as part of the interest of the petitioner in the estate of his father, said Walter French, tó be held in trust by him for his benefit.</p> <p>II. Because said guardian in said account has not charged himself, nor was he charged by said court with the full amount of money received by him as interest upon the money of his said ward in his hands, said money having been by him intermingled with his own.</p> <p>III. Because the said guardian has not in said account charged himself with the full amount of interest or dividends received by him from investments made with the money of his said ward in his hands.</p> <p>IY. Because the said guardian was allowed the gross sum of twenty-five dollars for his services as guardian, there being no specification of what those services were or when rendered.</p> <p>Y. Because there is an error in the computation of the interest, the said guardian not having computed the full amount of interest, with which he should have been charged.</p> <p>YI. Because the said guardian was allowed interest on the several amounts paid out by him for his ward during each year.</p> <p>The guardian has stated his account, charging himself with all sums received, and adding interest from the date of the receipt, to the end of the year at 5 per cent., and claiming an allowance for payments made, with interest on the same, at the same rate, to the end of the year, and carrying the balance forward at the end of the year, according to the practice of the courts of this State. Gordon v. West, 8 N. H. 455 ; Wendell v. French, 19 N. H. 211; StarlcY. Gamble, 43 N. IT. 465.</p> <p>He has not claimed any allowance for the time the fund remained uninvested, after its receipt, as he might reasonably have done when the sums were less than $500, as was the case in many instances. Btark v. Gamble, 43 N. H. 465 ; Robbins v. Hayward, 1 Pick. 528, note; Karr v. Karr, 6 Dana. 3 ; White v. Parker, 8 Barb. Sup. Ct. 48; WorraWs Appeal, 23 Penn., (11 Harris) 44; Armstrong v. Walk-up, 12 Gratt. (Va.) 608 ; Ringold v. Ringold, 1 Har. & G. 11; Huffer's Appeal, 2 Grant’s Cases, (Penn.) 341.</p> <p>The administrator of Walter French’s estate caused the estate of the deceased to be appraised. And. he took the whole of the estate at the appraisal (not having procured license to sell within six months) and accounted for it as cash at the appraisal in the settlement of his administration account in the probate court. Rev. Stat. ch. 159, sec. 5.</p> <p>After that settlement which left a balance in the hands of the administrator, he paid that balance over to the guardian, June 6, 1855, the sum of $10,500, part in money, part by note, and part by stocks.</p> <p>The auditor, to whom the cause was referred, attempts to report the evidence on the question how the stocks were taken by Mr. Currier, leaving that question of fact to be determined by the court.</p> <p>Upon the first ground of appeal, the question is presented, did Mr. Currier take the bank stock and gas company stock as part of the estate of the late Walter French, and to be held by him in trust for his ward or was it simply a payment to him of so much money by the administrator, wherein he took the stocks as the representative of so much money? The auditor’s report shows that he took them from-Abram French, as being the balance in the hands of the administrator, and not as property specifically held by the administrator.</p> <p>The administrator had taken the whole estate at the inventory, including these stocks. He had disposed of part pf them by sale, and accounted for those transferred to Mr. Currier as cash. In effect the administrator had paid for the stocks, and they were his property. Nor was there any authority of law to warrant the administrator in turning over the stocks to the guardian otherwise than as cash.</p> <p>The receiving the stocks by the guardian otherwise than as cash, or the investing the funds of his ward in such stocks on any pretext, was a breach of trust. Hill on Trustees, 378 and note ; Pamphlet Laws, ch. 1963, June, 1857; Pamphlet Laws, June, 1866, ch. 4250. The guardian testifies that he received the stocks as a payment as cash, and his whole course of action, subsequently shows that he so understood the transaction. He had his attention called to the fact that such investments were not permitted by the court. The transfer was to him as an individual, and not in his representative capacity. The receipt given was for money. He charged it in his cash account as money (merely noting the fact how much was cash, notes, &c.) He refused to take it at the appraisal, but did take it at a different rate — refused to take some part of the stock the administrator had taken of the estate, at any price. He took it at a premium, which he would not have done if he was to account for it specifically, leaving the loss, if any, to fall on himself. The dividends due soon after, he took to his own use, charging himself with the interest on the sum. due from the administrator. And the whole course of the transaction shows that the parties then all understood it as a payment.</p> <p>The action of Walter H. French shows that he understood it the same, as did his agent, Luther H. French, both when he settled his own account and when he settled that of Walter, and transmitted a copy of the account to him, in both instances treating the $10,500 as a cash payment. The attention of both Luther and Walter being then called to the fact that the stock was treated as cash and the dividends not included in the account, and explanation given as to the mode in which the account was made up, and particularly by the fact that Luther then claimed that the guardian should have accounted for 8 per cent. No ob - jection was made then to the correctness of the account, nor for more than five years after the account of Walter was settled, and about seven years after the settlement with Luther.</p> <p>Their statements, after that lapse of time, as to the manner they understood the transaction was to be, before it was actually completed, are not entitled to much weight when they are clearly contradicted by their whole course of action, while the affair was comparatively recent, and at a time when they were informed of all the facts or had such information as should have put them on inquiry.</p> <p>Upon all the evidence in the report, and in the supplementary report, it is clear that the stocks were the property of Abram French, and that Mr. Currier received them as a payment, as the equivalent of money, as he would have taken bank notes, legal tenders, checks or other evidence of property for the same amount.</p> <p>The investments of trust funds in bank and other stocks being illegal, Hill on Trustees, 378, &c, and those here in question being then the property of Abram French, it will be presumed that the administrator and guardian both understood the law and made the transfer in accordance with it. The stocks were not then the property of the estate, nor of the wards, and the guardian, after they came into his hands, was under no obligation to account for the dividends. The correctness of this position is fully shown by the enactment of the statute of June session, 1857, ch. 1963, authorizing such a transfer to be made under a decree of the probate court.</p> <p>The general principle that courts of equity will scrutinize all settlements made out of court by a guardian with his ward at or about the time of his coming of age is not controverted. But it is equally as well settled, that, if there is no substantial unfairness, the court will not disturb such settlement after a lapse of many years, and an acquiescence on the part of the ward with full knowledge of the facts, or with such information at the time of the settlement as should have put him on inquiry. Boynton v. Dyer, 18 Pick. 1; White v. Parker, 8 Barb. Sup. Ct. 48; Wheclbee v. Whedbee, 7 Jones’ Law (N. C.) 14.</p> <p>The stocks were not in the hands of the administrator as trustee for the heirs. And the case of Perry v. Hall, cited by defendant does not sustain the proposition. It was the duty of the administrator either to have sold them by license or to account for them at the appraisal. Itev. Stat. eh. 159, sec. 5. If sold by license he is to account for the proceeds of the sale ; if taken at the appraisal they become the property of the administrator. No harm occurs to the estate or to the heirs by the latter course, as all the value such property is understood to have by reason of the amount of income it produces, is included as a premium in the sum at which it is appraised.</p> <p>The stocks not being the property of the wards nor held in trust for them; their use as a mode of payment by the administrator to Currier was a transaction neither void nor voidable any more than a payment in any other kind of funds.</p> <p>The eases cited by the defendant to sustain the position that a purchase by a guardian of his ward’s estate is voidabie, fail to have any application, because the facts do not show such to have been the nature of the transaction.</p> <p>The question is raised, if the guardian did not invest the funds of his ward in these stocks, where did he invest them? It was used by him, as his own funds were, and constituted the larger part of the estate for which he was taxed, and which was principally in land and buildings, which probably did not yield an income exceeding four per cent.</p> <p>There was no evidence to show that the funds in the hands of Mr. Currier have been made to earn more than 6 per cent. He made some good investments and some bad ones in stocks. He has investments in real estate to a considerable amount, as the amount for which he is taxed shows. Since the stock in the Print Works, in the Amoskeag Manufacturing Co., the Stark Mills, and Amoskeag Gas Lt. Co., and the Blodgett Edge Tool Co., being-all manufacturing corporations, are not taxed directly to him, but the taxes are paid by the corporations respectively. Compiled Statutes, ch. 41, sec. 3, ch. 42, sec. 5. And the amount of those investments forms no part of the sum for which the taxes against Mr. Currier were assessed, while in. fact a large part of the fund for which they were a-ssessed, is derived from the "estate of these wards in his hands.’■’</p> <p>An argument is attempted that because the guardian did not specifically render an account of the taxable estate of his wards so that it might be taxed separately, that he is lacking in honesty and integrity towards his wards. He inadvertently fails to render to the assessor a statement of his wards’ estate and his own separately, by reason whereof the whole burden of the tax falls on himself, and that is claimed to be dishonesty towards his wards : and on the other hand when in 1865 he did return his wards’ estate separate from his own so that it was taxed to them, that is also claimed as unfair dealing toward his wards.</p> <p>The ward’s property was liable to taxation. Rev. Stat. ch. 40, sec. 12; Pay sony. Tufts, 13 Mass. 493. The taxon the ward’s estate was in fact paid by the guardian; who, in the settlement from which this appeal is made, claimed no allowance for such payment, and yet the counsel for the ward claim that it was the duty of the guardian to have in some way sheltered the ward’s property from taxation, and for the pecuniary benefit of his wards to have adopted a course of dishonesty from year to year and cheated the assessors and the public in the assessment of taxes on hjs ward’s estate.</p> <p>The moral sense must be strangely obtuse which permits a party to gravely come into court and present such a scheme, as being the care, prudence and good faith in the management of the funds of his wards which honesty, integrity and the law required the guardian to exercise.</p> <p>In the defendant’s brief it is said, that, in the matter of the taxation, the guardian was guilty of unfairness and dishonesty ; there would be as much reason and honesty, and probably as mnch truth, if it were said that this whole matter of appeal were a speculation, and attempt to satisfy an old grudge, in which, if successful, there is no reasonable pause for belief that these wards will be in any way benefited.</p> <p>None of the other grounds of appeal are insisted upon in the argument, and it may be assumed, that those discussed are the only ones on which the defendants claim to maintain their appeal.</p> <p>In the matter of the $25.00 charge for services. It was allowed by the judge of probate as being a reasonable sum in his discretion upon consideration of the facts that from December, 1853, to June, 1855, the guardian had paid out for his wards more than he had received, and had made no other charge for services and expenses in procuring the appointment, attending probate court, settling with the administrator and the services which must necessarily have been rendered. For these services and the expenses necessarily incident thereto, it is apparent the sum claimed is no more than a fair equivalent.</p> <p>The effect of the mode of stating his account adopted by the administrator is to give him one per cent, as his commission, and no reason is shown why he is not entitled to retain that sum as a fair compensation for his services.</p> <p>A question is raised in the defendant’s brief as to the amount of compensation to be allowed to the guardian. No appeal was claimed on that ground, except as to the $25 claim. Beyond that the question is not open. Mathes v. Bennett, 21 N. H. 200 ; Hatch v. Purcell, 21 N. H. 544.</p> <p>If the guardian should be held to account for these stocks as taken by him specifically, he should be credited by delivering them to the heirs, at the same rates that he took them from the administrator, and Luther H. French and Walter H. French should account to him for the difference between the price at which they took the stock transferred to them and the price allowed in the transfer from the administrator. The evidence and the facts reported by the auditor show that the account as rendered by the guardian and allowed by the probate court is substantially correct, and that there is no just ground for the defendant’s appeal.</p> <p>Should the opinion of the court be that the account ought to be corrected, no difficulty will arise in settling the accounts of this defendant and the other wards under the guardianship of the plaintiff, upon such principles as the court may determine to be just.</p> <p>"The relation existing between guardian and ward is such, that the principles of a sound public policy require a close and rigid supervision on the part of courts of equity, of all gifts or conveyances to the guardian by his ward, on coming of age. The case is much stronger for relief, than is that of parent and child; because the guardian is not supposed to be under the influence of that affection for his ward, which the parent has for his child ; and, consequently, has not that check upon his selfish feelings. The court acts upon the broad principle of public utility, for the purpose of discouraging all such transactions ; and will relieve against them, although in the particular instance, there be no actual unfairness or imposition.” The Law of Trusts and Trustees, Tiffany and Bullard, 134.</p> <p>In the case of Hylton v. Hylton, 2 Vesey 547, Lord Hardwicke said : "Where a man acts as guardian or trustee in the nature of a guardian, for an infant, the court is extremely watchful to prevent that person from taking any advantage immediately upon his ward coming of age, and at the time of settling accounts or delivering up the trust, be-See also Stark v. Gamble, A3 cause undue advantage may be taken. N. EL 467.</p> <p>The parties in this case stand in the relation of guardian and ward; and two questions arise upon the facts found by the auditor in his report :</p> <p>First. Who is entitled to the dividends received upon the bank and gas stock by the guardian during the continuance of the guardianship ?</p> <p>Second. ' What commission is the guardian entitled to retain as compensation for his services, upon the facts shown in the case?</p> <p>I. As to the bank and gas stock. By the report of the auditor it appears that on the sixth day of June, 1855, the administrator of the estate of Walter French transferred to the guardian, 50 shares of the Amoskeag Bank stock, 20 shares of the Appleton Bank stock, and 20 shares" of the Manchester Gas Light Co.’s stock, and the guardian charged himself on his book of accounts, under that date, with these stocks. The auditor also finds that these stocks were all retained by the guardian, up to the time of the settlement with Luther H. French, one of his wards, of his account as guardian of the said Luther H. and Walter H. French, when 20 shares of Amoskeag Bank stock were transferred by him to said Luther, and 10 shares of the same stock to said Walter, and the residue of said stock still remains in said guardian’s hands. The auditor also finds that at the time of the transfer of the stock by the administrator to the guardian, June 6, 1855, it was understood by the administrator and the heirs that the stock was to be held by the guardian for the benefit of the heirs, that it was a transfer or assignment merely, and not a sale of the stock to the guardian, but that the guardian understood that it was a sale of the stock to him. The evidence upon this point is reported by the' auditor, but we do not regard it material, because upon the facts found by the auditor there was no legal sale of the stock. To constitute a sale, both parties must have understood and intended the transaction as a sale.</p> <p>While these stocks remained in the hands of the administrator, they were held by him as trustee for the heirs. Perry v. Hale, 44 N. H. 369. And even if he had undertaken to sell them, Currier, being at that time the guardian, could not be the purchaser of the property of his wards. The sale might not have been absolutely void, but it would have been voidable, and the heirs would have been at liberty to avoid it, as the appellant in this case now seeks to do. Wormley v. Wormley, 5 Curtis 469, 8 Wheat. 421; Michoud v. Girod al., 16 Curtis 188, 4 How. 513; Sparhawk v. Allen, 21 N. H. 9, and cases cited.</p> <p>But if the guardian purchased the stocks, with whose money did he pay for them ? Whose money did he invest ? Clearly that of his wards. If he did not invest it there, where did he invest it ? And if their funds were invested in these stocks, then, upon the facts found in this case, they are entitled to the dividends which accrued upon the stocks, according to the rule laid down in the cases already cited.</p> <p>The principle applicable to this case is, we believe, correctly laid down in Barney v. Saunders, 16 Howard 535 ; Curtis’ Decisions of the Supreme Court of the IT. S., vol. 21, page 292, in the following language: "It is a well settled principle of equity, that wherever a trustee, or one standing in a fiduciary character, deals with the trust estate for his own personal profit, he shall account to the cestui que trust for all the gain which he has made. If he uses the trust money in speculations, dangerous though profitable, the risk will be his own, but the profit will enure to the cestui que trust.”</p> <p>II. What commission is the guardian entitled to retain as compensation for his services upon the facts shown in this case ?</p> <p>Section 36 of chap. 159 of the Compiled Statutes, provides that "every guardian shall be allowed a reasonable compensation for all proper expenses and services in the discharge of his trust.”</p> <p>In cases where the guardian has faithfully discharged the duties of his trust the rule seems to have been adopted in this State, of allowing’ him a commission of one per cent, for taking care of the funds of his wards : or, in other words, the legal rate of interest being six per cent, the guardian is charged five per cent, on the funds in his Sands, when nothing appears to show that the funds have earned more than the legal rate of interest. And when it appears that the funds have in fact earned nothing, but have been suffered by the guardian to lie idle in his hands, the guardian will be charged with interest at the rate of five per cent, on the ground that he should have invested them, and he is charged with the legal rate of interest and allowed his commission of one per cent. Stark v. Gamble, 43 N. H. 468.</p> <p>But if it appear that the profits of the funds have in fact exceeded six per cent., then the excess belongs to the wards according to the doctrine of the cases we have already cited.</p> <p>The auditor reports that "the guardian has not kept the funds of his wards separate from his own, except such as remain invested in said stocks, but mingled the mone)is received from the administrator indiscriminately with his own, which he invested in stocks, some good and others not good.” The report also shows that with a single exception, that of the Blodgett Edge Tool Co., the guardian’s investments have yielded large dividends, amounting to eight per cent, semi-annually, and some much larger than that. Upon these facts the wards are entitled to the benefit of the best investments of the guardian, so far as he has mingled their funds with his own. The law will not allow the guardian to say that he has invested his own funds to more advantage than he has those of his wards. 2 Kent’s Com. 229 and 231: Tiffany and Bullard’s Trusts and Trustees, 594.</p> <p>The guardian in this case cannot claim that the court should exercise any unusual leniency, or in any degree relax the rule in his behalf. The balance of funds in bis hands at the end of each year, the amount of property for which he was taxed in the city of Manchester, the amount of the taxes assessed against him, and the amount of the taxes charged by him to his wards during each year from 1855 to 1865, as reported by the auditor, furnish abundant evidence that the guardian has failed to exercise that care, prudence and good faith in the management of the funds of his wards, which honesty, integrity and the law required him to exercise.</p> <p>In 1864, the whole amount of property for which said Currier was taxed, including the funds of his wards, was $25,150 ; and at that time he had in his hands funds of his wards, as shown by his own books, to the amount of $26,095.77. The taxes upon the whole property for that year amounted to $363.17, and he charged to his wards, as their portion of the taxes for 1864, $379.92, sixteen dollars and seventy-five cents more than he paid up>on their property and his own. That ho had a large estate of his own at that time is shown by the fact that the next year, 1865, he returned his own taxable property, separate from that of his wards, at $21,600. By a comparison of the other years his unfairness and dishonesty will be equally apparent though perhaps in a less degree. The burdens of taxation which the law imposed upon him, he endeavored to transfer to his wards. His own estate, already large, he has attempted to increase by withholding from his wards, funds which legally, equitably and morally belonged to them. It does not now avail the guardian to say that his account of taxes charged was withdrawn at the hearing before the judge of probate. He had charged them year after year and had settled with Luther H. French upon that basis; and his withdrawal of the claim before the judge of probate, when he found that a full examination of his acts as guardian was to be made is only a confession that his attempt to defraud had not succeeded.</p> <p>The decision of the court in this case will determine the basis upon which the settlement of the guardian’s account, in the case of the other wards, is to be made; and it will be necessary that a master should be appointed to state the accounts between the parties, when the principles applicable to this case have been settled.</p>

<p>The surviving wife may be a witness to matters in which her deceased husband was interested, unless she acquired her knowledge of the facts through a confidential communication from her husband.</p>

Indictment for entering the warehouse of A. K. Warren in the night time, and stealing one bushel of rye and a bag. A second count charged the entry to have been into a granary and stealing the same goods.

<p>Where, under a special act of the legislature, it was made the duty of the railroad commissioners to appraise the land of a railroad, in order to form a just connection with another railroad, and the award of said commissioners was uncertain and ambiguous, the court will give it such a construction as to reserve to the commissioners a full and fair legal exercise of the duties enjoined upon them, and only such, as was properly within their jurisdiction.</p> <p>Under the laws of this State, the award of the commissioners is not deemed final and conclusive upon the parties, but is open to future examination and revision. Upon the complaint of an aggrieved party to such connection, the court will appoint a committee to review the same, and will sustain the proceedings of said committee when they conform to the law.</p>

This is an indictment, and the first count charges the entering of the house of Charles E. Warren in the night time and stealing therefrom a coat and some children’s garments; and the second count charges the breaking and entering of the same house and stealing the same goods in the day time.

Issues on an appeal from the decree of the judge of probate allowing the will and codicil of Margaret Blydenburgh. The issues joined were: 1st. That Margaret, at the times of making, &c., was not of sane mind; 2d. That she was induced to make the will, &c., by undue influence. 1. The court ruled that the executor was entitled to open and close, and to this the appellant excepted. The will was executed May 30, 1849, and the codicil June 13, 1855.

Petition served on the 25th of August, 1866, for an increase of the damages awarded to the petitioners on the 12th day of March, 1866, by the selectmen of New Hampton and the selectmen of Bristol, acting as a joint board, on the laying out of the petitioners’ bridge over the river Pemigewasset.

Assumpsit on two notes. Plea, the general issue and statute of limitations. By agreement of the parties the case was tried by the court, who found the facts to be as follows : The notes were given by one Whitton to defendant, and by defendant endorsed to plaintiff!

<p>Replevin for one hundred thousand staves. The plea was: The said Hiram Paul comes and defends, &e., when, &o., and avows the taking of the property set forth in the plaintiff’s writ, and justly, because, he says, that he, the said Paul, at the time and place of taking said property, as alleged in the plaintiff’s writ, was a deputy sheriff for said county, duly qualified to act as such, and had in possession a writ of attachment in favor of P. & P. Rice & Co., against one John A. Garvin, returnable at the Supreme Judicial Court for said county of Carroll, October Term, A. D. 1863. That said John A. Garvin was part owner of said property in co-partnership with the said Sylvester Garvin; and that at the time of said attachment, said property was in possession of said John and Sylvester; that by virtue of said writ of attachment, he then and there took said property to satisfy the claim of the said P. & P. Rice & Co., against the said John A. Garvin, and made return of said property on said writ of attachment to the said court so holden at said Ossipee, and'this he is ready to verify. Wherefore he prays judgment and his damages hy reason of the wrongful replevying and delivery of the said property to the plaintiff, to be adjudged to him.</p> <p>To this plea the plaintiff demurred, and the questions raised by the demurrer are reserved.</p> <p>The parties agree to the following statement of facts for the purpose only of raising questions of law; if those questions should not be raised hy the demurrer, neither party to be prejudiced by this agreed statement at any future trial.</p> <p>The defendant, a deputy sheriff, attached the staves on a writ in suit, P. & P. Rice & Co., v. John A. Garvin.</p> <p>The defendant’s return on said writ was : "I attached one hundred thousand staves, the property of the within named John A. Garvin, or all his right, title and interest in said staves.”</p> <p>Defendant took possession of the staves, and retained possession till they were taken by the officer serving the writ of replevin in this suit. At the time of the attachment, the staves were the partnership property of the plaintiff Sylvester Garvin, and said John A. Garvin, and were in their possession, the partners’ interest in the partnership property being equal.</p> <p>When the questions raised by this case are decided, the case is to be discharged.</p> <p>Ordered, that said questions arising in this case be reserved.</p> <p>I. One partner cannot alone maintain replevin for partnership property. Morris on Replevin, 72.</p> <p>Plaintiff in replevin must show a right to the exclusive possession and control of the property. 2 Greenl. Ev. sec. 561. "And so in a replevin it is a good plea to say that the property is to the plaintiff and to a stranger.” Co. Litt. 145 5. It is not enough that the partner has an undivided interest in the whole property. To sustain replevin a plaintiff must be the sole owner of some specific property. Scudderv. Worster, 11 Cush. 573, Dewey, J., p. 581; Low v. Martin, 18 Illinois 286. The right of the firm to the possession of the partnership property is an entire right, and does not exist so exclusively in any one partner as to entitle him to bring replevin. The cases on which plaintiff relies seem decisive on this point. For, if one partner has not such a property in the partnership goods as to enable the sheriff to take the goods on attachment against him, how can he be said to have such a right to the sole and exclusive possession as will entitle him to bring replevin ?</p> <p>Hyde v. Noble, 13 N. H. 494, cited by plaintiff, is not in point., It was an action of trover, and the decision, that a part owner who has the sole possession, and complete control, of lumber, has a property in it "sufficient for the purpose of this action,” does not affect the case at bar. The nature of the two actions of trover and replevin is widely different; see authorities cited under second point. Besides, it appears that this plaintiff had only a joint possession with his co-partner.</p> <p>It is unnecessary to consider whether the actual sale by due process of law, on execution against one partner, of that partner’s interest in the firm, gives the other partners a right to the exclusive possession of the firm property. That question cannot arise in this case. Here there has been no sale, only a preliminary proceeding, an attempt to create a contingent or conditional lien by attachment. And, if plaintiff is correct in assuming that the attaching officer had no right to remove the property from the possession of the firm, certainly his seizure of the goods, being illegal, cannot operate as a severance of the interest of the partners in the property, nor give plaintiff an exclusive right to the goods thus taken. If the officer’s act was unauthorized by his precept it stands on the same ground as the tort of any wrong doer, and cannot give the plaintiff a right which he did not have before.</p> <p>II. The defence that plaintiff cannot alone maintain replevin, need not be pleaded in abatement. Heinheimer v. Hemingway, 85. Penn. State, 432 ; Cox v. Morrow, 14 Arkansas 603 ; Ellis, Administrator of Prichard v. Culver, 2 Harrington 129 ; Hart v. Eiizgerald, 2 Mass. 509; Pearson, J., in Gain v. Wright, 5 Jones’ Law (North Carolina) 282, p. 284.</p> <p>In trespass or trover where damages are sought, and not the recovery of the possession of a specific thing, it is held that non-joinder of co-plaintiff must be pleaded in abatement, but, if not so pleaded, the. oh" jeetion may be taken at tbe trial by way of apportionment of damages, and plaintiff will recover only such damages as are commensurate with his interest in the property injured. "But this rule, * * * * * which is predicated on the power of the jury to do justice by apportioning the damages according to the interest of the party, does not hold in this action of replevin, for possession of the chattel and not damages is the primary object of the action.” Black, J., in Filis, Administrator, v. Oulver, ubi sup., p. 131.</p> <p>Replevin is a proceeding in rem. It is founded on property. The chattel claimed is to be delivered to plaintiff before any pleadings can be filed by defendant. "This chattel is not capable in law of severance ; and the whole or none of it can be delivered to the plaintiffand if it be delivered to a plaintiff being but a part owner he must receive an undivided part, in which he has no property. See Parsons, C. J., in Hart v. Fitzgerald ubi sup., p. 512. The damages sought in trespass are divisible, but the specific chattel recovered in replevin is not divisible ; so the plaintiff "cannot recover his aliquot part, and if allowed to recover at all, must get the whole, which would be more than he is entitled to.” Pearson, J., in Gain v. Wright, ubi sup.</p> <p>There are other "very strong distinctions between the principles applying” to actions to recover damages for injuries to chattels, and replevin. Several part owners may each at the same time bring trespass or trover, and, if there be no plea in abatement, each may recover several damages commensurate with his interest in the chattel. But if several part owners each bring replevin and the writs are placed in the sheriff’s hands at the same time, how is the property to be replevied? To which of them should the sheriff deliver it ? "He cannot divide it, for his functions are ministerial merely, and not judicial.”</p> <p>We contend that if the proof, which supports the objection arising from non-joinder goes in denial or disproof of the declaration, or of any material allegation in it, it need not be pleaded in abatement. See Gould on Pleading, sec. 106. One of the most material allegations in a replevin writ is, that the property replevied belongs to plaintiff. Proof that the property belongs to plaintiff and another is in denial of the gist of the plaintiff’s action, viz., exclusive right to possession; and it is inconsistent with a material part of the declaration. Therefore, by the general principles of pleading, this objection may be taken by plea in bar.</p> <p>Two cases may perhaps be cited for plaintiff on this point. H Wolf v. Harris, 4 Mason 515, is merely a nisiprius ruling, and Story, J., expressly admits, p. 539, that if plaintiff "sues for a moiety only in his writ the court will ex off do abate it.” In that case, too, there was no plea of property in the plaintiff and a stranger, and the court alluded to the fact that the defence of non-joinder "is not proper evidence under either of the pleas filed by the defendant.”</p> <p>Wright v. Bennett, 3 Barbour 451, was decided under the statutes of New York, whereby replevin has been substituted for detinue in all cases, and for trover, in most cases, at the option of the plaintiff. The court said "the pleadings in this case must, therefore, be tested by the rules which would have been applicable in the action of detinue or trover;” (Allen, J., p. 453.) The decision that the plea of non-joinder "is no bar to this statutory and substituted action of replevin,” (Allen, J., p. 455,) really disposes of the case, and the subsequent remarks as to pleadings in a common law action of replevin are mere dicta.</p> <p>The assertion of the court, (p. 455,) that "there is certainly nothing in the nature of the action to distinguish it from any other action of tort,” is hardly sustained by authority; and the decisions in detinue on which they place some stress, are opposed to several American authorities. See Gain v. Wright, 5 Jones’ Law, N. C. 282 ; Bell v. Hogan, 1 Stewart (Ala.) 526; Miller v. Eastman, 11 Ala. 609.</p> <p>1. The plaintiff sues for the whole, the objection for non-joinder must be by plea in abatement. Be Wolf v. Harris, 4 Mason 515.</p> <p>2. In replevin, the question is simply as to the right of present possession, and not of necessity one of general ownership. McGoy v. Oadle, 4 Iowa 557 ; Warner v. Matthews, 18 111. 83; Bhaddow v. Knott, 2 Swan (Tenn.) 358; Bebey. DeBaum, 3 Eng. 310; and especially as against a defendant alone; Bogard v. Jones, 9 Humph. 739 ; Bradley v. Michael, 1 Smith 346. In Illinois the jury may find part of the property in the plaintiff and part in the defendant. O’Keafe v. Kellogg, 15 111.</p> <p>In Pennsylvania, replevin is not an action in rem altogether, but against defendant in person with a summons to appear. Bower v. Tail-man, 5 Watts & Serg. 556. Absolute possession, coupled with absolute right of possession, except as against a third party other than the defendant, when there is no privity existing between such third party and the defendant, will enable a plaintiff to maintain replevin. Johnson v. Garmley, 10 N. T. (6 Selden) 570. As against wrong doers and trespassers a paramount right of property is not requisite to maintain replevin, but naked possession, or a right of possession combined, with a beneficial interest will do. Freshwater v. Nichols, 7 Jones’ Law (N. C.) 251.</p> <p>3. In actions etc delicto, and not for breach of contract, the objection of non-joinder can be taken only by plea in abatement. The defendant cannot as in actions ex contractu have non-suit on evidence of non-joinder, nor demur, nor move for arrest of judgment, nor plead in bar, even though the non-joinder appear in plaintiff’s declaration or other pleadings. 1 Chitty’s Pleading 57 ; StarkieonEv. 1065 ; 2 Saund. Plead. & Ev. 576, 536 ; 1 Saund. Plead. & Ev. 291; 5 Term Pep. 651; 1 B. & P. 75 ; 1 B. & P. 123 ; 5 East. 407 ; 5 East. 420.</p> <p>Hart v. Fitzgerald, 2 Mass, cited by defendant, and commented on in Chitty 57, (note 2,) is not in point. That case turns on the fact that judgment, as the law then stood in Massachusetts, would have been rendered for the chattel as well as for damages. Butin this State judgment in replevin is not for the return of chattels, but for its value, if rendered for defendant; for caption and detention, if for plaintiff. Bell v. Bartlett, 7 N. H. 178.</p> <p>If several replevin writs by several joint owners or co-partners are placed in the officer’s hands at the same time, the delivery of the chattel to one is sufficient; one partner holds possession of partnership property as a trustee of his co-partners. Newman v. Bean, 21 N. H. 93. Proof that property is in the plaintiff and another is not a direct denial of plaintiff’s exclusive right to possession; it is at best but presumptive denial, and in a plea would be open to demurrer as argumentative or wanting certainty. One partner may have, by right, exclusive possession. A co-partner has no property in the specific chattels but a special or beneficial interest in the whole, and may sell the whole at one sale even.</p> <p>Possession, right of possession, and right of property, are the elements of a clear title, yet any two-of these elements may co-exist in the same person without the other, and proof of the co-existence of two elements is neither proof, nor disproof, nor denial, direct or indirect, of the existence or non-existence of the third element in the same person, and therefore on principle as well as on the authorities above cited, cannot be pleaded in bar; nor could defendant take the objection of nonjoinder by a plea in abatement under our statute. Com. Stat. ch. 198, secs. 10-18 ; Gove v. Lawrence, 24 N. H. 128.</p> <p>Under the adjudications of this State, the goods and chattels of a partnership, as against creditors of a co-partner in his individual capacity, are exempt from attachment. Chap. 217, Rev. Stat. see. 3, p. 520, provides that goods and chattels exempt from attachment, by law, may be replevied:</p> <p>1. By the ownerOof such chattels.</p> <p>2. By the person out of whose possession they have been taken.</p> <p>Under this statute, possession, whether by right or wrong, of such chattels, is sufficient to sustain an action for their replevin.</p>

<p>Trover for goods attached by the plaintiff as a deputy of the sheriff on sundry writs of mesne process against Robert W. Pratt. The goods were delivered by the plaintiff to the defendants on their giving him a writing acknowledging the receipt of the goods, stating that they were attached in those suits as the property of Pratt and containing the following stipulation : "And we hereby promise and agree to deliver the same, or their value, to said Holt, or order, on demand in good order and condition as the same now are in, free from all charge and expense to said Holt.” The goods were valued in the receipt at §1000.</p> <p>The goods were duly demanded by the plaintiff while he had in his hands an execution issued on a judgment recovered against Pratt by one of the attaching creditors, and were not delivered nor their value paid. Before, the demand a part of the goods had gone into the hands of Pratt with the consent of the defendants.</p> <p>The defendants contended that trover could not be maintained and moved for a non-suit; the court overruled the motion and the defendants excepted. The jury returned a verdict for the plaintiff, which the defendants moved to set aside.</p> <p>Trover will not lie in this case:</p> <p>1. Because the contract between the parties was special and alternative, to deliver the property, or value thereof to the plaintiff, on demand, in good order and condition, as the same now are, free from all charge and expense to him; the action should have been special on the contract itself. Perry v. Barter, 2 East. 2; 1 Chitt. PL 308, 334; Mitchell v. Gile, 12 N. H. 392 ; Keyes- v. Dearborn, 12. N. H. 52 ; Badger v. Burleigh, 13 N. H. 507.</p> <p>By the terms of the- contract it was optional with the defendants to dispose of the property and pay its value to the plaintiff, (2 Parsons’ Con. 163; 1 Chitt. PL 308, 334; Perry v. Porter, 2 East. 2) rather than keep it at a large expense to themselves, a very important stipulation in a receipt of this kind for live stock, as was the case here, and one to whose benefits the defendants are fully entitled.</p> <p>2. The defendants having a right to dispose of the property, the conversion was not wrongful, nor Avas the plaintiff entitled to the possession of it; and for these reasons also, trover cannot be maintained. Bissell v. Huntington, 2 Nr H. 142 ; Hdgerly v. Emerson, 23 N. H. 573: 2 Greenl. Ev. sec. 636.</p>

At a legal meeting of said town held on the 22d day of February, A. D. 1865, the town amongst other things acted upon the following article in the warrant for said meeting, viz : 2d. To see what bounty the town will vote to pay enrolled men who have or may volunteer or furnish substitutes since Nov. 1,1864, for the service of the United States, and to raise and appropriate money therefor, or act anything thereon.” And voted as follows, viz : Voted to pay enrolled men of said…

<p>When the owner of land or buildings in. any town in this State is injured by an alteration or repair of a highway, raising or lowering the same in front of, or adjacent to, the said land or buildings, under the special statute of 1848, he may apply in writing to the selectmen of the town for redress, setting out his claim for damages, and the grounds thereof, in a brief, comprehensive and intelligible form.</p> <p>The selectmen having neglected or refused to act upon said application for the space of thirty days, the party injured may file his petition in due form in this court, giving jurisdiction to the court by reciting past proceedings, and substantially setting out in his petition his claim for damages, and the grounds thereof, as in his first application. It is in the discretion of the court to allow an amendment of the pleadings, provided no new cause of action, affecting the jurisdiction of either tribunal, would be introduced thereby. The assessment of damages to be made in such cases, will be for all past as well as prospective injuries to the petitioner’s property, and upon the same grounds as selectmen appraise damages, in laying out highways.</p>

<p>This is an application of the overseer of the poor of the town of Croydon to the county of Sullivan, for reimbursement of expenses incurred in the support of Henry Richardson, a pauper, from Dec. 2, 1864, to Jan. 23, 1866, amounting to $93.64.</p> <p>The said Henry, with his parents, Jacob and Hepsibeth Richardson, moved from Springfield, in said county, to Croydon, Dec. 2, 1864, and has lived there since that date. He is fifty years óf age, and has been from infancy, deaf, dumb, a non compos, and wholly unable to support himself, and having always lived with his father, now over eighty years of age, and who for fourteen years prior to Dec. 2, 1864, lived in Springfield.</p> <p>Henry had his legal settlement in the town of Londonderry, until the act of July 4, 1861, abolishing- all settlements acquired prior to 1820, unless he had, prior to 1861, by reason of the facts hereinafter stated, acquired a settlement in Springfield. He became a pauper and public charge in Springfield, March 10, 1857, and the charges for his support were paid by Londonderry from that date until October, 1861, when, on application by Springfield, the county of Sullivan paid for such support until his removal to Croydon, Dec. 2, 1864, since which time the county has refused to pay the bills for the same.</p> <p>His mother, Hepsibeth Richardson, and wife of Jacob, had a deed in her own right, and was taxed for, in Springfield, from 1854 to 1864, inclusive, and paid the taxes on real estate valued at over $500, which real estate was occupied during said time by said Hepsibeth and Jacob.</p> <p>The money with which said estate was purchased, was earned by the personal labor of the wife, during- coverture, and while living by mutual agreement temporarily apart from her husband for the purpose of enabling them to obtain a livelihood.</p> <p>The husband never at any time claimed, used, or reduced to his possession said money, or any part of it. Neither the said Jacob nor Henry has ever been assessed or paid taxes in Springfield for four years in succession on real estate valued at $150, or personal estate valued at $250, or paid a poll tax for seven years in succession, unless said taxation of Hepsibeth was substantially a taxation of Jacob.</p> <p>It is agreed by the parties that said Henry has no legal settlement in any town in this State, unless it be in Springfield, and if upon the whole case the court shall be of opinion that his settlement is not in Springfield, then this application shall be allowed; otherwise it shall be dismissed.</p> <p>I. The obligation to support paupers arises solely from statute, and all statutes relating to the settlement and support of paupers must be strictly construed. Mace v. Nottingham West, 1 N. H. 52 ; Meredith v. Canterbury, 3 N. H. 80 ; Otis v. Strafford, 10 N. H. 352.</p> <p>Henry Richardson has no settlement in Springfield unless he gained it by derivation from his father, Jacob, and Jacob has gained no settlement there, unless by virtue of his interest in his wife’s estate. By a strict construction of the statutes, it is necessary, in order to gain a settlement in this mode, that the person himself shall actually own and pay all taxes assessed on an estate valued at $150, at least, for four years in succession, and his interest must be a clear one, not subject to doubt, and one which may be taxed. Charlestovmv. Acworth, 1 N. H. 162 ; Wakefield v. Alton, 3 N. H. 378 ; Sudbury v. Stow, 13 Mass. 462.</p> <p>A married woman may hold real estate against the heirs of her husband, and against all persons except his creditors and subsequent purchasers without notice, even when the purchase money arose from a sale of the husband’s estate. Jeioell v. Porter & al., 31 N. H. 34. Richardson, therefore, could not well have gained a settlement in Springfield by virtue of his interest in his wife’s estate purchased with her earnings, even though they belonged to her husband.</p> <p>II. But if it should be held that Jacob Richardson might, by virtue of his interest in his wife’s estate, have gained a settlement in Springfield, the support of Henry by the county was an admission which es-tops the defendants from now setting up a claim to a settlement for him in Springfield. The support of a pauper by a town is competent evidence for a jury to infer a settlement in such town. Hoplcinton v. Springfield, 12 N. H. 328; Pittsfield v. Barnstead, 40 N. H. 477. And when, as in this case, such support has been furnished continuously for a series of years, and the claim for such support has been adjudicated by the county commissioners, sitting judicially with all the powers and duties formerly possessed and exercised in such cases, by the court of Common Pleas, such an admission becomes conclusive evidence of a liability to support, and has the practical force of a judgment. Shirley v. Lunenburg, 11 Mass. 379.</p> <p>III. At the time Henry Richardson first became a pauper, March 10, 1857, his settlement must have been in Londonderry, for if hisfathrer ever gained a settlement in Springfield, it could not have been until after that date; not in fact, until after the taxes for the year 1857 had been assessed and paid ; and that could not have been until after April of that year. Now, the support of Henry by Londonderry, while his settlement was in that town, would prevent his gaining a settlement in Springfield so long as such support was furnished by Londonderry, and subsequently by the county. It has been well settled, that, while a pauper is supported by a town where his settlement is, he cannot during the time such support is furnished gain a settlement in another town where he may be domiciled. Oalcham v. Sutton, 13 Met. 192; Brewster v. Dennis, 21 Pick. 233 ; Bast Sudbury v. Waltham, 13 Mass. 460 ; East Sudbury v. Sudbury, 12 Pick. 1; West JSTewbury v. Bradford, 3 Met. 428. Henry, therefore, could never have gained a settlement in Springfield. For, after receiving support from Londonderry, while his settlement was there, he could not take a settlement in Springfield by derivation from his father.</p> <p>IV. But it has been well settled, that a parent cannot gain a settlement in a town where he is residing, if during the time of such residence required by law to gain a settlement, his idiotic child, though over twenty-one years of age, receives support from another town where he had his settlement. As Jacob Richardson had no settlement in Springfield in March, 1857, when Henry, his idiotic son, first received support as a pauper by Londonderry, where Jacob’s settlement also then was, he never could have gained a settlement in Springfield since Henry, and thereby his father was supported by Londonderry and the county continuously from that date until December, 1864, since which time the Richardsons have lived in Croydon. Taunton v. Middleborough, 12 Met. 35; Gardner v. Farmingdale, 45 Me. 537.</p> <p>The only alternative of this result is, that Henry became emancipated by receiving support from Londonderry. And in either view of the case, he never could have gained a settlement in Springfield.</p> <p>1. Our statutes do not authorize the conclusion in this State, as claimed by this applicant, that the pauper could not gain a settlement in Springfield by reason of support being furnished him by Londonderry during the period while the settlement was being acquired. The modes of gaining settlements are matters of mere local law, and depend upon the local statutes of each State, and we contend that no such doctrine as that claimed by this applicant in the brief furnished by the counsel, can be drawn from the statutes of New Hampshire.</p> <p>2. The support of the pauper by the county cannot operate as an estoppel. It can, at most, be competent evidence, tending to show a want of a settlement in any town in this State. But we contend that it cannot be even that. Although where a town submits to pay for support furnished to a pauper by another town as a pauper belonging to the former town, this might be evidence of an admission of a settlement, (which we do not admit,) it would by no means follow, that, because a county should submit to a claim of a town for support at any one time, they are therefore to be taken as admitting for all after time, the negative proposition that the pauper had no settlement in the State.</p> <p>3. But if the doctrine claimed by our opposing counsel, viz.: that support furnished to the son would be legal support furnished to the father, and would therefore prevent the father gaining a settlement, and the son gaining one under him, be correct, this would have no effect upon the settlement of the mother. Now we claim that Hepsibeth Richardson, the mother of the pauper, gained a settlement in Springfield by virtue of her holding real estate to the requisite amount, and paying taxes on it the requisite length of time, to wit: from 1854 to 1864. The fourth clause of section 1, chap. 69, Compiled Statutes, enacts, that "any person of the age of twenty-one years, having real estate of the value of one hundred and fifty dollars,” &c., "and paying all taxes,” &c., "shall thereby gain a settlement.” And the words in the same section importing the masculine gender, may, by force of section 2, chap. 1, Compiled Statutes, be applied to the mother. There seems to us a manifest reason why this section of chap. 69, Compiled Statutes, should apply to a married woman, when she otherwise comes within its language. The first clause of sec. 1, chap. 69, Comp. Stat., enacts that "married women shall have the settlement of their husbands, if any he has, or shall acquire any,” &c., "otherwise her settlement at the time of her marriage shall continue.” The statute of 1861, chap. 2482, Pamphlet Laws, enacts, that "no town shall be liable for the support of any person unless he, or the person under whom he derives his settlement, shall have gained a settlement therein since the first day of January, A. D. 1820. The ¡original settlement of the mother before marriage, therefore, was interrupted and lost. This being so, the true spirit and meaning óf all the statutes taken together, now very forcibly call for a literal interpretation of the fourth clause of sec. l,chap. 69, Com. Stat., and the husband having no settlement of his own, the wife, and the mother of the pauper, could gain one by owning property in her own right, and paying taxes the requisite length of time — for she is a person within the meaning of this statute.</p> <p>The pauper, then, derives his settlement in Springfield under his mother, by virtue of the second clause of sec. 1, chap. 69, Comp. Stat., which enacts that "legitimate children shall have the settlement of their father, if any he has,” &c., "otherwise the settlement of their mother, if any she has,” &c.</p> <p>Having this settlement, the county is not liable, and this application ought to be dismissed.</p>

<p>If the defendant relies upon payment as a defence, either upon the general issue or a special plea, the burden rests upon him to prove payment.</p> <p>If the court in their discretion allow leading questions, it will be presumed, unless the contrary appears, that there was a proper case' for the exercise of the discretion.</p>

Assumpsit upon a promissory note declared on. The note dated Dec. 8, 1860, and the declaration may be referred to. The note purported to be signed by the defendant with his mark, and had no witness. There was a notice of denial of signature by the defendant, but no affidavit according to the 44th rule of court.

Trespass for assault and false imprisonment. Plea, the general issue, and several special pleas, alleging the insanity of the plaintiff, and that the acts complained of were done by the defendants in the attempt to take and carry him to the asylum for the insane, by request of his wife and others, and that no more force was used than was necessary for that purpose.

<p>Where the selectmen of a town, in obedience to the call of the general government, and by due authority from their town, undertook to enlist soldiers for the government to fill up or supply the quota of said town, and to pay a town bounty to all such soldiers as might be found duly enlisted and accepted into such service by the legally constituted and examining officers assigned to such duty, did knowingly furnish and pass off as sound, a man physically disqualified for duty, and did improperly and prematurely advance the bounty of the town to such person, who was afterwards upon due examination rejected by the examining officers; under these circumstances, it was held, the selectmen exceeded their authority, and the town could recover back, in this form of action, from the aforesaid soldier, the bounty money advanced to him.</p> <p>The parties are not in pari delicto, as the plaintiffs have done nothing to sanction the unauthorized acts of their agents, having received no advantage from their acts, and have used due diligence to disavow the same.</p> <p>This action can be maintained upon the ground that the defendant has received plaintiffs’ money upon a consideration which has failed, or upon an agreement which has been fully rescinded by reason of fault in the defendant.</p>

This is an action of assumpsit brought to recover for supplies furnished by the plaintiff for the relief of Annette Bradbury, the widow of Aaron Bradbury, deceased, and five of their children, all alleged to be paupers and chargeable to the defendant town. The relief was alleged to be furnished from March 10, 1862, to June 4, 1862, to the amount of 025.31, and from June 6, 1862, to February 20,1863, to the amount of 074.10.

<p>Where the gist of the action is the disturbance to plaintiff’s possession, whatever was done after the breaking and entry is but the aggravation of damages.</p> <p>The plaintiff may properly elect any day prior to the date of her writ, as the time when the defendant forcibly entered upon her land, and converted her bark to his own use, and the defendant may be called on to pay the highest market value, at the place of the conversion, for the property taken, with interest thereon from the time of the taking to the day of the trial by the jury.</p> <p>Damages may be arrived at by the jury by making a fair average of the sales, made near the time and place of the conversion, and both before and after the taking.</p> <p>Upon the question of boundary, the acts and declarations of a surveyor while surveying an adjoining lot, are admissible; the said surveyor having deceased, and having no interest to misrepresent at the,time of such survey.</p> <p>What such surveyor did and said at the time he found the corner of plaintiff’s lot may be regarded as something more decisive than the expression of a mere naked opinion.</p>

This was the report of the county commissioners laying out a highway in the town of Stark. It appeared that the same highway was originally laid out by the selectmen for the accommodation of the petitioners subject to the maintenance of gates or bars ; that afterwards a petition was presented to the selectmen requesting them to cause the gates and bars to be removed, and to lay out the road as an open and free highway.

<p>Husband and wife should join in a writ of entry to recover possession of land which was conveyed to them both during their natural lives.</p>

<p>Where a way of necessity had existed over the plaintiff's land for many years, running to the saw mill of another, and a public highway was laid out by the public authorities not on the same route, and not accepted as a substitute by the owner of the land, or the patrons of the mill, such owner would be entitled to common and adequate damages for the land taken by such public highway. Otherwise, where the public highway is received by consent as a substitute for the way of necessity.</p>

Foreign attachment. The principal defendant was defaulted. The plaintiff elected to try the liability of the trustee by jury, and a trial was commenced. Dec. 10, 1853, Eliza Brooks, wife of the defendant, in her own right, and the defendant, conveyed to the trustee, who is their son, a farm in Lancaster, on which the grantors then lived. The consideration expressed in the deed was $2000.

Writ of entry, dated July 10, 1860, for a tract of land being part of a tract of land known as Thompson and Meserve’s Purchase, in said county, but not within the limits of any town, and bounded as follows : Beginning at the northwest corner of Pinkham’s Grant, so-called, in said county; thence north 8 degrees west to the southerly line of Low and Burbank’s Grant, so called; thence southwesterly on the line of said Low and Burbank’s Grant, to the northeast corner of the…

<p>Assumpsit on a promissory note signed by the defendant.</p> <p>Defence, that the defendant at the time of the making and giving said note was a married woman.</p> <p>The parties agree upon the following statement of facts :</p> <p>At the time of the making and giving of said note, the defendant was, and still is, the wife of Samuel Sargent. At that time she was the owner of a farm in Canterbury, on which she and her said husband then, and ever since have resided. Said farm was conveyed to her, several years previously, to her sole and separate use, free from the interference and control of her said husband.</p> <p>The note in suit was given for the price of certain neat stock at that time bought in the name of the defendant, and by her authority, for use. on the farm aforesaid, and which was taken and used accordingly on said farm.</p> <p>The note in this case is dated Jan. 20, 1858, and the law applicable to the same is to be found in the 327th chapter of the Laws of 1846, secs. 14 and 15 of chap. 158 Comp. Stat.</p> <p>By section 15, married women holding property in their own right, in respect to all such property,” have the same rights and are subject to the same liabilities as though sole.</p> <p>The only question in this case is, whether the contract which is the subject of this suit, was "in respect to such property” thus held by' the defendant.</p> <p>In Bailey v. Pearson, 29 N. EL 87, where this subject was considered, the court say, "so far as the property itself is concerned she may malee contracts in regard to the same, which may act upon it, *' *'</p> <p>and may make contracts and incur liabilities connected with and growing out of that property, but not farther.”</p> <p>That the defendant could have leased or sold the property so held by her seems perfectly clear. It would also seem clear that she could make valid contracts for its cultivation and improvement, for the repairs of the buildings, fences and the like. If she chose to carry on the farm herself her contracts for labor for this purpose would cause her to "incur liabilities connected with and growing out of the property.” If, then, the employment of labor for the cultivation of the farm would cause her to incur a legal liability, it would seem that a similar liability could be incurred for agricultural tools and implements, &c., proper for such cultivation, in which would necessarily be included the neat stock and other animals kept and used upon the farm.</p> <p>The statutes authorizing conveyances to married women include personal as well as real estate. Compiled Statutes, ch. 158, secs. 13 and 15 authorize contracts in respect to such property.</p> <p>The note in suit cannot be sustained on the ground that the neat stock for which it was given, was purchased by the wife for her own property. Fines v. Foster, 42 N. H. 381, is directly in point.</p> <p>The only ground on which the plaintiff’s counsel claims to sustain it is, that the neat stock was purchased by the wife for use on the farm she then owned. But we submit that it cannot be sustained on that ground.</p> <p>It is not sufficient under the statute referred to, section 15, that the contract be made with a collateral reference to the property. It must relate directly to it. Frnes v. Foster, above cited; Flbin v. Lord, 39 N. H. 202; Bailey v. Pearson, 29 N. H. 87.</p> <p>In the present case the contract between the parties related only to the neat stock. The future use of the stock, intended by the defendant, formed no part of the contract with the plaintiff, even if then known to him.</p> <p>The contract did not relate to the farm or to anything which could in any way afterwards legally become or be made a part of it. Neat stock may be very useful on a farm, but it cannot in law be made a part oi it. When purchased and placed on the farm it does not become appurtenant to, or connected with it, but still remains separate and distinct property. It is otherwise with repairs and improvements, which become a part of the property itself.</p> <p>Any supposed equities of the case do not alter the law. Shannon v. Ganney, 44 N. H. 592.</p>

<p>A creditor cannot lawfully seize and sell on execution his debtor’s right of redeeming the family homestead, or any interest therein, where its value does not exceed five hundred dollars.</p> <p>If it exceeds that sum, the officer, upon due application, must set out the homestead before he can make sale of any interest therein, and’then can proceed only against the surplus.</p> <p>If, after such application, the officer, without selling out the homestead, undertakes to dispose of it, a court of equity will interfere by injunction, upon the ground that it will create a cloud upon the debtor’s title.</p>

1o the Supreme Judicial Oourt to be holden at Ooncord, within and for the county of Merrimack, on the first Tuesday of April, 1866.

<p>Constitutional law. Check lists, who may post up and revise the same.</p> <p>An act in amendment of the charter of the city of Manchester provided that the board of assessors for said city shall hereafter be, for the purposes of said act, a board of inspectors of the check lists in the several wards of said city, who shall prepare, revise, correct and put up, in the manner that selectmen of towns are required to do, alphabetical lists of the voters in said city, &c. Held, that these provisions of the act are not repugnant to the constitution of this State.</p>

<p>The writ in this case is dated Oct. 3, 1864, and was served on the trustees, October 3, 1864. At the time of the service of the writ the trustees were indebted to the principal defendant in the sum of eight hundred thirty-one dollars and sixty-seven cents, upon a note for that sum, dated on or about Sept. 19, 1864, payable in sixty days from its date. The trustees at date of note were residents of New Hampshire, and still are. Said note was made' in Boston, Massachusetts, but no place of payment was specified in note.</p> <p>The claimants claim that they are the assignees, under the insolvent laws of Massachusetts, of the said John Rogers, doing business under the firm of J. Rogers & Co. On the 29th day of September, 1864, said John Rogers, as an inhabitant of Massachusetts, and being insolvent, filed his voluntary petition to be decreed an insolvent debtor, and on the same day, a warrant was issued by the court of probate and insolvency for the county of Suffolk, requiring the messenger of said court to take possession of the property and estate of said John Rogers, and hold the same until the appointment of assignees. And said claimants were, on the eleventh day of October, 1864, appointed by said court assignees, and took upon themselves that trust, and proceeded in fulfilment thereof, and proceeded in accordance with the laws of Massachusetts in that behalf.</p> <p>At the time of said petition and appointment, said note was in thd safe of one Joseph C. Davis of Boston, for safe keeping, and did not actually pass into the hands of said claimants until after the service of ■said writ on said trustees in this suit.</p> <p>The notice of these claimants to the trustees that they were such assignees, was given Nov. 22, 1864.</p> <p>The plaintiff, who is a resident of New Hampshire, and was so when his debt accrued, had no notice whatever of the petition of said Rogers, the appointment of said assignees, nor of any of the proceedings in said case. Plaintiff’s claim is for money due for goods consigned to defendant and by him sold.</p> <p>The claimants claim that by their appointment as such assignees, the note in question- became their property as assignees, and that they are entitled to the avails thereof in that capacity.</p> <p>This case was submitted to the court upon the foregoing statement of facts, and the questions arising on the case were reserved.</p> <p>The only question arising in this case is whether the trustees are chargeable. From the facts agreed it appears that the writ was served upon the trustees Oct. 3, 1864 ; that at that time they were indebted to the principal defendant upon a note made by them payable to Rogers ; that the note was made in Massachusetts ; that on the 29th of September, 1864, the principal defendant was an inhabitant of Massachusetts, and being insolvent on that day filed his petition to be decreed an insolvent, and on that day a warrant was duly issued to the sheriff to take possession of all his goods and estate, and hold the same until the appointment of assignees.</p> <p>By section 44 of chap. 118, p. 586 of the General Statutes of Massachusetts, it is enacted "that the assignment shall vest in the assignee all the property of the debtor, real and personal, which he could have lawfully sold, assigned or conveyed, or which might have been taken upon execution against him at the time of the first publication of the notice of issuing the warrant, although the same is then- attached on mesne process as the property of the debtor,, and shall be effectual to pass all said estate and, subject to the provisions of the following section, to dissolve any such attachment. The assignment shall vest in the assignee all debts due to the debtor or any person for his use, and all liens and securities therefor, and all his rights of action for goods or estate, real or personal, and all his rights of redeeming such goods or estate.”</p> <p>This note, then, under the laws of Massachusetts, by the assignment of Sept. 29, passed to the assignees, there being nothing in the case to show that the proceedings in insolvency have not been regular, and the assignment, being valid under the laws of that State, is valid and binding here. Hoag v. Hunt S al., & Tr., 21 N. H. 106; Hall v. Board-man & Tr., 14 N. H. 38.</p> <p>In Hoag v. Hunt, a case almost precisely like the one at bar, the court say whatever debt the trustee owed the defendants passed by the assignment to the assignees. This doctrine is recognized in Massachusetts in repeated decisions. 8 Gray 181; 11 Gray 37 ; 7 Allen 395. To the same effect is Smith v. Brown, 43 N. H. 44.</p> <p>The case of Dalton v. Clurrier, relied on by the plaintiff, is not in point. In that case by the assignment it appears it was fraudulent. It was made for the sole purpose of defeating and delaying the creditors in New Hampshire and was not in conformity to the laws of Massachusetts.</p> <p>The plaintiff assumes that the note in question was payable in this State, but the facts found in the case do not warrant such an assumption. The case finds that the note was made in Boston, and that the principal defendant was an inhabitant of Massachusetts. The note was clearly payable.in Massachusetts. Story on Prom. Notes, secs. 235 and 236.</p> <p>This note, then, having been made and payable in Massachusetts, passed by the assignment to the claimants, and cannot now be reached by trustee process here, and the trustees should be discharged.</p> <p>The settled doctrine here is that a prior assignment in bankruptcy will not transfer the property as against the creditor of the bankrupt, who is a citizen of the government where the property is situated, or the debt due. Baunderson v. Bradford, 10 N. H. 260; Saunders v. Williams, 5 N. H. 213.</p> <p>A prior assignment in bankruptcy under a foreign law, will not be permitted to prevail against a subsequent attachment, by an American creditor, of the bankrupt’s effects found here. And our courts will not subject our citizens to the inconvenience of seeking their dividends abroad when they have the means to satisfy them under their own control. 2 Kent’s Com. 406 — 7 ; Dalton v. Gurrier, 40 N. H. 237.</p> <p>In Connecticut it is held that law, justice and public policy, all combine to give a preference to their own attaching creditors. Taylor v. Geary, Kirby 313.</p> <p>It is also .held that the rule by which the funds of the defendant can be attached by trustee process, does not apply to the case of a debtor summoned as the trustee of the defendant for a negotiable promissory note, for the reason that a hona fide purchaser must lose the amount, or the maker, without fault on his part, be compelled to pay it twice. Stone v. Dean, 5 N. H. 502. In that case of Stone v. Dean the notes disclosed were not in a position at the time of the service of the writ, nor afterwards, where they could be transferred, nor could the trustee be called on to pay them again, and the trustees were charged for the notes.</p> <p>If, on disclosure, it appears that the ' trustee had not, at the time of the service of the process, any property of the principal defendant in his hands in this State, and was not chargeable on any debt or contract to be paid or performed in this State, he will be discharged, not for want of jurisdiction of the case, person and subject matter, but because the courts here hold that in such case the trustee is not chargeable, since their judgments could not affect property out of the State, and consequently the trustee could not be protected by it. Lawrence v. Smith, 45 N. IT. 533.</p> <p>In Horn v. Thompson, it is held, that where the trustee was owing a negotiable' note given to the defendant he could not be charged, without the notice required by the statute had been given ; but that where a party claiming an interest in a note should appear and confess the liability of the trustee, he might be held to have waived the statute notice, and consequently be bound by the judgment charging the trustee.</p> <p>The cases, Stone v. Dean, 5 N. H. 502, Horn v. Thompson, 31 N. H. 562, Kibling v. Burley, 20 N. H. 359, and others, holding that a trustee cannot be charged on account of a negotiable promissory note, all depend on the reason assigned in Stone v. Dean, that the trustee might be liable to have to pay a second time, and the judgment would not be any protection to him.</p> <p>The rule is one of public policy, and is not altered by the fact that a statute, since passed, admits of the trustee being charged under certain circumstances ; where the reason of the rule fails, the rule itself fails.</p> <p>Here the claimants come in and contest the liability of the trustee, and are bound by the judgment that may be rendered. Libbey v. Hodgdon, 9 N. H. 396. These notes have not been transferred bona fide and for a valuable consideration, so that the claimants hold them in no other way than the defendant held them, and they are to be treated as if they still remained in the hands of the defendant.</p> <p>The giving of the note was not an extinguishment of the preceding debt. Johnson v. Cleaves, 15 N. H. 332 ; Smith v. Smith, 27 N H. 244; Coburn v. Odell, 30 N. H. 540. And while the note remains in the hands of the defendant to whom the original debt was due, it will, where the court have jurisdiction of all the parties, and the purposes of justice require it, be treated as indebtedness on the original cause of action.</p> <p>The court having jurisdiction of the cause, and of all the parties, and of the subject matter, the judgment will be binding, and the trustees protected by it against having to pay the debt a second time.</p> <p>The trustees are chargeable, since without it the plaintiff in this State, although having no notice of the proceedings in Massachusetts, is barred from recovering his debt there in any event. Massachusetts General Statutes, ch. 118, see. 78. As the courts have held, that they will not compel the plaintiff to seek his dividends elsewhere when they have the means to satisfy them under their own control, they cannot so hold the law that its effect will be to deprive the plaintiff of his only remedy, and give the avails of the funds secured by the plaintiff in this State, to creditors in a foreign State, where they have the jurisdiction of all the parties and the subject matter, and the judgment here made will be binding on all parties. Dalton v. Currier, 10 N. H. 237 ; Saunders v. Williams, 5 N. H. 213. The question is not as to the nature of the contract, but as to the remedy, and must be governed by the rule of proceeding here and not by that in Massachusetts.</p> <p>Some of the decisions of the court would seem to hold that the trustee cannot be charged on a negotiable promissory note except under the limitations of the statute relating to trustees. Hibling v. Burley, 20 N. H. 359; Horn v. Thompson, ante, wherein it is said that before the passage of this act, it had been decided that the maker of a negotiable promissory note could not be charged as the trustee of the payee, and, consequently, independently of the statute, the power of the court did not extend to this case. Tins position, as stated, is too broad, and must be understood, with the limitation in Stone v. Dean, that it applies only to cases where the judgment would not protect the trustee, and such seems to have been the idea of the court, where subsequently, in the same opinion, it was said that where a party claiming an interest in the note should appear and contest the liability of the trustee, he waived the statute, and consequently would be bound by the judgment, charging the trustee.</p> <p>In Stone v. Dean, which was before the statute requiring the defendant to come in, and providing that notice should be given to the claimants to appear, the effect of the decision was that the trustees were charged where the parties appeared so as to be bound by the judgment.</p> <p>The claimants might have neglected to appear, when the trustees might, perhaps, have been discharged. If the trustee had not stated the facts relating to the claim of the assignees, and had been charged, that judgment would not have protected him against a suit by these claimants, for the reason that he was charged on his own default in not stating all the facts necessary to a correct decision. Page v. Thompson, 43 N. H. 373.</p> <p>The trustees should be charged, even under the statute. Ch. 208, sec. 18-20. The makers of the note resided in this State, and the note was payable here. No place of payment was designated, and it is consequently payable here, at the maker’s residence or place of business. The presentation for payment must be made here, as well as a demand for payment, if one were necessary. Chitty on Bills, 278 ; Story’s Prom. Notes, sec. 235 ; Story on Bills, sec. 49 ; Bank of Orange Co. v. Colby, 12 N. H. 523.</p> <p>No question, so far as appears, is made, as to the summoning in of the defendant or giving notice to any one having an interest to appear and maintain his claim, as, so far as these parties are concerned, that is waived by the appearance.</p> <p>These claimants are bound by the proceedings in this State, in the same way the plaintiff would have been bound by the proceedings in Massachusetts, if he had gone there and presented his claim and taken his dividend.</p>

<p>This is assumpsit, and there are seven counts in the declaration, three of which are special under ch. 180, sec. 6, of the Revised Statutes, giving a remedy where one co-tenant of real estate holds the exclusive possession and income thereof against the will and without the consent of his co-tenant. Three counts are for the use and occupation of the same land, and the other for interest on moneys.</p> <p>It appeared that the plaintiff and the defendant’s wife were two of six children, and heirs of David Webster, senior, who died intestate in 1847, seized of this and considerable quantity of other real estate, and that plaintiff and Franklin Webster were appointed and acted as administrators of the estate of the deceased.</p> <p>Soon after the decease of the intestate the defendant entered into possession of the land in question, about tMrty-eight acres, upon an agreement with the plaintiff, that, so far as he was concerned, the defendant should have the land at the inventory of the appraisers of the estate of said deceased, which was $1800, and the said Calef continued to occupy the land from that time, commencing in June, 1847, until the spring of 1865, when partition was made of the estate of the deceased, upon plaintiff’s petition, and a portion of this tract set off to the plaintiff. That during all this time, the defendant cultivated the land and took the entire profits thereof to his own use, but there was no evidence that the plaintiff at any time objected to Iris doing so, but on the contrary the plaintiff testified that he always expected that the defendant would take the land at the appraisal as aforesaid, and pay the interest on that sum, although he testified that nothing further was said between them on the subject after the entry as above stated.</p> <p>It appeared that the plaintiff and defendant for their joint benefit purchased the shares of three of the other heirs, in the real and personal estate of the deceased; that is, of William P. Webster, November 15, 1848, of James J. P. Webster, January 15, 1849, and Veranus Webster, May 8, 1851.</p> <p>The plaintiff testified that when they bought of the other heirs, he understood that Calef had his word that he should have the farm at the inventory, and he supposed that on the final adjustment the defendant would take it at the inventory and pay the interest.</p> <p>He also testified that, soon after defendant went into possession of the place, he made additions to the house and barn, finished off the upper part of the house, and painted the outside and set out an orchard of sixty or seventy apple trees, the plaintiff living near by.</p> <p>At the close of the plaintiff’s evidence the defendant moved for a non-suit, and it was ordered by the court, subject to the plaintiff’s exception.</p> <p>Either party may read the pleadings at the hearing and the proceedings upon the petition for partition.</p> <p>The questions of law arising on the case wore assigned to the whole comt for determination.</p> <p>By ch. 191, sec. 7, p. 459, of the Compiled Statutes, it is provided that "if any co-tenant of any real estate shall hold the exclusive possession and income thereof against the will and without the consent of his co-tenant, the co-tenant so excluded may in action of assumpsit recover of the person holding such possession the full amount of all damages he may have sustained thereby.”</p> <p>By the common law one co-tenant could not maintain an action at law against another to recover his share of the income of real estate owned in common by them, and it was the design of the legislature to change the rule in this respect. It is claimed that this statute only applies where the co-tenant who brings the suit is forcibly excluded from the possession of the common property, but we maintain that it was not the intention of the legislature to restrict its operation within so narrow limits. It was manifestly their purpose to give a new remedy where none had previously existed, and save the necessity in tins class of cases of a resort to the equity powers of the court. If it had not been, why was the act passed ? And if it is to be restricted in the manner above suggested, it only affords a remedy in one class of cases, and that a very limited number. But if the limited construction is to be given to this statute which is claimed for it on the part of the defendant, and that in order to maintain this action we must satisfy the jury that the defendant had the exclusive possession and income of the premises in question against the will and without the consent of the plaintiff, then we claim that the court erred in ordering a nonsuit. The question of whether the occupation of the defendant was without the consent and against the will of the plaintiff was one of fact for the jury, to be determined by them from all the facts and circumstances disclosed in the case, and in order to sustain the ruling of the court it must clearly appear that there was no evidence competent for the jury to consider as bearing upon this question. Now we maintain that the evidence does not show conclusively that the defendant did not hold possession of the premises in question without the consent of the plaintiff. The evidence reported declares the fact that at the time the defendant went into possession the plaintiff expected that he would take the land at the appraisal, and that nothing further was said about it; that when he and the defendant purchased of the other heirs, he understood that Calef had his word that he should have the farm at the inventory, and he supposed that on the final adjustment the defendant would take it at the inventory and pay the interest. The proceedings in the partition of the premises in question, make a part of the case. It appears that the partition was made upon the petition of the plaintiff. This is an important fact, bearing upon the question of occupation. The proceeding of partition may be termed adverse. It may be fairly inferred from it that the parties did not agree and that the plaintiff in this suit was obliged to resort to that proceeding in order to get possession of what actually belonged to him. Taking all the evidence into the account, we submit that it was competent to be submitted to the jury upon the question at issue; and upon it if the verdict had been for the plaintiff it could not be disturbed, for it is too well settled to require the citing of authorities, that where evidence is competent to be submitted to a jury, it is for them to give it such weight as they think it entitled to, and return their verdict accordingly. If, then, tins evidence was competent to be submitted to the jury upon the question at issue, of which we cannot doubt, the ruling of the court sustaining the motion for a nonsuit was wrong. But there is another view in which the court were wrong in granting the motion. There are three counts in the writ for use and occupation. Now if the evidence was so conclusive upon the question raised in the three counts against the defendant as co-tenant with the plaintiff as to leave nothing for the jury to determine upon them, it was certainly competent upon the question of use and occupation. The position that assumpsit cannot be maintained by one co-tenant against another to recover his just share of the income of the estate held in common, cannot, we believe, be successfully questioned. We are not able to find in our own reports any case where this question has been raised or decided, but in Massachusetts it is settled in numerous decisions that such an action can be maintained upon the principles of the common law, as administered in many instances since the statute of 4 Anne, chap. 16. Under that statute it is held that where one co-tenant has -received more than his share of the rents or income of the common estate he is liable in an action of assumpsit to his co-tenant. Washburne on Real Property, 2d ed., vol. 1, p. 436.</p> <p>And this, says the author, now seems to be the law generally in the United States. The first case in which this question arose was Jones v. Haraden, which was decided in 1784, and is reported in 9 Mass. 540, note. In that case it is expressly decided that assumpsit may be maintained ; and the case is cited and the same point is affirmed in Bingham v. Bveleth, 9 Mass. 538. See, also, Shepard v. Richards, 2 Gray 424; Dickinson v. Williams, 11 Cush. 258 ; Gower v. Shaw, 40 Me. 53 ; and other authorities referred to in Washburn on Real Property before cited.</p> <p>From the authorities above cited it would seem that the law in other States is well settled, and that assumpsit might be maintained. If this is the law of the State then the evidence was clearly competent under the counts for use and occupation.</p> <p>The case of Smith v. Woodman, 28 N. H. 520, may be urged as an authority in support of the ruling of the court in this case, but a careful examination will show that the questions here presented were not decided by the court — that the case went off upon other and different grounds, and so is not in point in this case.</p> <p>1, No case is cited to show that where one co-tenant occupies and improves the premises as his own, without objection and without any agreement to account, he is liable for the rents and profits in equity, any more than at law. On the contrary, Lord Eldon says, Rulteney v. Warren, 6 Ves. 93, that "where there has been an adverse possession, and upon an application to this court, upon grounds of equitable relief, the plaintiff appears entitled to an account of the rents and profits ; if there has been an adverse possession without fraud, concealment, or an adverse possession of some instrument, without which the plaintiff could not proceed, the court has said the account shall be taken only from the time of filing the bill, for it is his own fault not to file it sooner.” And see Drummond v. The Duke of St. Albans, 5 Ves. 439 ; Pickett v. Loggon, 14 Ves. 244. Where the plaintiff has been guilty of laches, the court, even in cases of trust, will not be disposed to give an account further back than from the time of filing the bill. Pettiward v. Prescott, 7 Ves. 547.</p> <p>A bill for an account of mesne profits cannot be maintained at all, without showing special ground of equity jurisdiction. Pulteney v. Warren, 6 Ves. 73, 88, 89, 90.</p> <p>2. To recover under the statute, upon the facts as reported, the plaintiff must strike out of his declaration, and out of the statute, the material qualifying words, "against the will and without the consent of his co-tenant,” which plainly would he to make a new statute, instead of construing the existing one.</p> <p>The statute applies only to a co-tenant who is "excluded” from the possession, and substitutes assumpsit for the common law remedies in such a case. Great Falls Co. v. Worster, 15 N. H. 460 ; Odiorne v. Lyford, 9 N- H. 510, 511; Smith v. Woodman, 28 N. H. 528, 532.</p> <p>3. The partition went by default. The default admitted the material allegations of the petition, and nothing more. It was alleged that at the date of the petition, the parties were co-tenants of the shares therein stated. This, for the purposes of that proceeding, was admitted by the default. But how this is to be deemed evidence that they had been co-tenants, prior to that time, or that the defendant had "excluded” the plaintiff from the possession, is not apparent. King v. Chase, 15 N. H. 596 ; Taylor v. Dustin, 44 N. H. 493 ; Willson v. Willson, 25 N. II. 229.</p> <p>4. Upon the facts found, the case is not brought within the statute of 4 Anne c. 16. Henderson v. Eason, 9 E. L. & Eq. 337 ; Sargent v. Parsons, 12 Mass. 149. And Mussey v. Holt, 24 N. H. 248, 254, is a direct decision of this court, that assumpsit for use and occupation will not lie.</p> <p>Nor do the Massachusetts decisions give any support to the action, under the facts that appear. Jones v. Haraden, 9 Mass. 540, was an action for money had and received, to recover the plaintiff’s share of the proceeds of a ship and cargo sold by the defendant. Bingham v. Eveleth, 9 Mass. 538, and Dickinson v. Williams, 11 Cush. 258, were also for the recovery of money received by the defendant, and not for use and occupation. And in Shepard v. Richards, 2 Gray 424, the rule is stated to be in that State, that "a tenant in common who has received in money more than his share of the profits of the estate, is liable to his co-tenant in an action of law for the surplus.” On the other hand, Sargent v. Parsons, 12 Mass. 149, Wilbur v. Wilbur, 13 Met. 404, Peck v. Carpenter, 7 Gray 283, and Gower v. Shaw, 40 Me. 53, are decisively against the plaintiff’s action for use and occupation, there having been no express promise shown to sustain the suit.</p> <p>The case shows bad faith or gross laches on the part of the plaintiff in attempting to compel an accounting of receipts and disbursements, after the lapse of almost twenty years, and in violation of his own agreement, for it does not appear that the defendant ever objected to a settlement in accordance with the original agreement, if the plaintiff would have permitted it; and no such evidence exists.</p>

<p>When suit is brought by an administrator of an insolvent estate and the plaintiff obtains a verdict, the defendant is entitled as matter of right, under the 48th rule of court, to have exception stayed, if he desires to review the action.</p>

Trespass, qu. cl. Plea, general issue and right of way. In the writ, defendant was summoned to answer to Joseph W. Whidden and Elizabeth A. Whidden, wife of the said Joseph, in right of the wife,” for breaking and entering the close of the said Elizabeth,” containing one half acre. March 3, 1856, Daniel N. Pickering conveyed a tract of land containing about 30 acres, to said Joseph, and another tract containing about 60 acres to Win. Berry.

<p>Where a farm was conveyed with the free and uninterrupted use and privilege of passing and repassing over other land of the grantor in the usual passage way, and proof was offered that such way had been used with gates and bars for forty years, and up to the time of the grant, arid that such gates and bars were necessary to the convenient use of grantor’s remaining land, it was held that this must be taken to be a grant of the way as then existing subject to gates and bars, and a right to use it without other or further impediment.</p>

<p>Trespass de bonis, for a cow. Writ dated April 13, 1865.</p> <p>March 28, 1863, one Joseph Morse leased to plaintiff a farm for the term of five years from the first day of April, 1863. It was stipulated in the lease that plaintiff should furnish Morse with board and lodging, and that plaintiff should have the privilege of cutting sufficient wood on the farm for keeping necessary fires, and should have the cow then on the farm, and at the expiration of the lease should "return a cow of equal value or its equivalent, with sufficient hay to keep one cow until the twentieth day of May next following.”</p> <p>The following appears on the back of the lease :</p> <p>"The undersigned committee chosen for the purpose have agreed to the following terms for closing this lease. Mr. Morse is to have the cow and calf on the first of April, and hay to keep her until the 20th day of May — and his board to first day of April, 1865 — and the said Girdler shall have 3 1-2 cords standing wood and sufficient wood until the first of April, 1865, for his own use, and the produce of the farm now and then on hand, and refund the taxes for the year 1863, to the said Girdler.</p> <p>James Hadlet,</p> <p>Thomas Cotton,</p> <p>J. C. Merrick.”</p> <p>The cow, which is the subject of controversy, is the one referred to in said report of referees, and not the one referred to in the lease, and was taken after April 1, 1865, by defendant, who bought the cow of Morse, who is defendant in interest.</p> <p>Plaintiff testified that he left the farm the latter part of April or first of May, 1865, that when the lease was made it was verbally agreed that if either party was dissatisfied they should choose referees to determine the terms upon which the lease should be terminated; that in pursuance of that agreement said referees were chosen and their report made several months before April 1, 1865, — that he did not carry away any wood or produce, — that he asked Morse two or three times before April 1, 1865, to settle it up — that Morse did not say whether he would or wouldn’t — that in February or March he asked Morse to show him then what wood to cut — that Morse said he wasn’t going to do anything about it, and seemed to be irritated — that the taxes on the farm for 1863 were between $8 and $9, which Morse has not refunded — that after said April 1, with the assent of both parties and the referees, plaintiff wrote the words "to the said Grirdler” at the end of the report.</p> <p>The court, pro forma, ordered a nonsuit, and plaintiff excepted.</p> <p>By the lease the cow passed to Grirdler. Hurd v. West, 7 Cowan 752 ; Smith v. Olarh, 21 Wend. 85; Mallory v. Willis, 4 Comst. 76; Foster v. Pettiborn, 3 Seld. 433; HydeY. Ooohson, 21 Bart. 93 ; 2 Kent’s Com. 590.</p> <p>By the terms of the report, the title to the cow in suit did not pass to Morse until April 1, 1865, and was to remain the property of the plaintiff. The lease was to continue in force till that time, and the terms are fixed by the report upon which it is to be terminated.</p> <p>At any time after the report, and before April 1, the parties could annul, abandon or change the terms of the report. Whether either party so concluded is a question of fact for the jury. The conduct of Morse before April 1 is evidence to g;o to the jury to show that he abandoned the whole matter. Morse refused to furnish the wood, or refund the taxes, and he could not then claim the cow. If he claimed the benefit of the contract, he must bear its burdens.</p> <p>Here was an award of arbitrators, confirmed by the plaintiff adding - an amendment to it after April 1, 1865, with the assent of all parties.</p> <p>If either party refused to perform the award, he became liable to an action by the other; but a mere neglect or refusal by one party, on request of the other, to perform it, has no tendency to prove that it was abandoned by both.</p> <p>The question whether there was a waiver or abandonment of the award, by common consent, was the only one possible to be submitted to the jury; and not only was there no evidence that this was so, but the plaintiff’s evidence incontestably proved the contrary.</p>

Assumpsit. The first count was against the defendants as endorsers of a note payable in New York given by one Briggs to defendants, and by tbem endorsed to plaintiffs. Held: and not have submitted it to the jury as was done. The second objection to this evidence is, that it does not state any facts or fact tending to show when or how notice to the endorsers was given, but only states his opinion and belief that due notice was given.

Covenant broken. The declaration was, that on the 2d day of November, 1863, plaintiff covenanted that defendants might cut, carry away and dispose of all the wood and timber on a certain lot, provided defendants should pay over to plaintiff the proceeds of said wood and timber as fast as sold and paid for subject to the approval of plaintiff, in consideration whereof defendants agreed to pay over to plaintiff the proceeds of said wood and timber as fast as the same should be…

<p>Whei'e evidence has been received, and upon doubts of its competency being expressed by the court, the party offering it says he will withdraw it, and no objection is made by the judge, it will be taken to be withdrawn with his assent, and the verdict will not, ordinarily, be disturbed.</p> <p>A person accustomed to deal with a trading firm will hold a retiring partner for a debt contracted after such retirement, unless such person had actual notice of it, or was put upon inquiry.</p> <p>Notice in the gazette is not notice to a person accustomed to deal with the firm, unless brought to his knowledge; and even if he he in the habit of taking the same gazette it is not notice as matter of law.</p> <p>Nor will the registry of a mortgage by the remaining member of the firm to the retiring partner, even of goods like those of the firm, or even if brought to the knowledge of the creditor, put him, as matter of law, upon inquiry.</p> <p>The fact that the creditor had the means of knowledge, and with reasonable diligence might have ascertained the dissolution, will not charge him, unless the circumstances were such as to put him upon inquiry.</p>

<p>The deed of the husband in consideration of love and affection, in which he covenanted to stand seized of a farm to his own use during his life, then to the use of his wife ° during her life, and then to the use of the son, the defendant, forever, is good to vest the estate in the rvife on the death of the husband.</p> <p>Upon the death of the husband his administrator is not entitled to the possession of the farm as against the wife, unless the estate be actually insolvent; and a decree of insolvency alone is not sufficient.</p> <p>Such a settlement is good, if the covenantor was not embarrassed, but retained ample moans to pay all his existing debts, and it was made in good faith ; and, therefore, the administrator will not be entitled to dispossess the wife, by showing a decree of insolvency ; that some debts due when the deed was made had been presented against the estate ; and that the personal estate is not sufficient to pay all the debts.</p> <p>A verbal agreement between the wife, after the husband’s death, and her son, thatthey shall live together on the farm during her life, and that he shall carry it on, and that they shall pay the debts of the estate ; and an entry and possession by him under such agreement, creates a tenancy at will, from year to year.</p> <p>Therefore, a notice to quit of less than three months is not sufficient to terminate such tenancy.</p> <p>The notices prescribed by the act known as the landlord and tenant act, are intended to take the place of those required at common law ; and apply in actions at common law equally as in proceedings under that statute.</p> <p>A notice not naming the day when the tenant is required to yield up the possession, seems not to be in accordance with the statüte.</p>

This is a bill in equity, alleging that the defendant sued one Eleazer D. Barker and attached his goods, which were sold upon mesne process; that the plaintiff purchased some of them at auction, and for the price gave her note with surety to the sheriff; that the plaintiff, through her agent, from time to time, advanced money and goods to the defendant upon an agreement that the amount should be allowed in payment of the plaintiff’s aforesaid note; that the sheriff who had…

Case. The substance of the declaration was, that on the tenth day of December, 1866, the defendant induced the plaintiff to exchange his gray mare valued at $75, and pay defendant $200 for defendant’s horse, harness and buggy wagon, by falsely and fraudulently representing said horse, harness and buggy wagon to be his own, free and clear from all incumbrance, well knowing them to be subject to a mortgage made by him to one Rourke to secure payment of his debt to Rourke of…

<p>This was trover, brought to recover the value of two tons of hay, or grass, cut and carried away, and converted by defendant to his use in August, 1863, each ton being worth $7; also for a like quantity of plaintiffs hay, wrongfully taken and converted to defendant’s use in August of each of the four years preceding .1863.</p> <p>This action was tried by the court upon the general issue.</p> <p>The evidence in the case tended to show, that oneMillen, under whom the parties hold their title, owned certain lands called part of the Mark Meadows in Swanzey, and upon his death one undivided half of the same premises were owned by one Beebe Ballou and the other undivided half by George Bucklin and his wife Arethusa. It is admitted that plaintiff is the owner, and for several years past has been, of Beebe Ballou’s share — and that in December, 1851, George Bucklin and wife conveyed by metes and bounds, and by warranty, one half of said premises, or his wife’s share, to the defendant. Geo. Bucklin’s wife was the daughter and heir at law of Millen. In 1846, said Beebe Ballou and Bucklin and wife, being tenants in common of about 17 1-2 (acres) of said meadow land, undertook to make partition of the same. Accordingly the plaintiff and Joel Millen, now deceased, as agents of said Beebe, and George Bucklin, went upon the premises. Bucklin procured the aid of a surveyor, George W. Sturtevant, who surveyed the lands and divided the same in equal shares. The plan then made was produced. Either in that year, or the next, the parties made a parol partition of said lands. They put down stakes and stones at the several corners or angles, according to the plan of Sturtevant.</p> <p>The contest before the court had relation to the tract marked on the plan measuring about 12.1-2 acres; more especially, as to the ownership of the grass, which grew near the supposed dividing line which separated this tract into two parts. The plaintiff claimed the grass that grew upon land extending about two rods wide and for the distance of 40 or 50 rods in length, and that, according to the original partition, as made by the parties, all the grass, for this distance at least, belonged to him and had been wrongfully converted by the defendant as stated in his writ. The line claimed by plaintiff extended further east, by two rods, than defendant was willing to admit. Plaintiff claimed that, by the original division, he was entitled to the most land, as the eastern part of the meadow,' which was selected by Bucklin, was most cleared, and bore the most grass, and was the most valuable. Biicklin testified that they divided the whole land equally in quantity without reference to the quality. Although the evidence of the parties -was somewhat contradictory as to the location of plaintiff’s southeast and defendant’s southwest corner, and as to their dividing line — extending from their southerly to their northerly bounds — yet the weight of the whole evidence tended strongly to convince the court that the parties to the original partition intended to divide the land equally, in quantity, according to the survey and plan of Sturtevant, and that the southerly corner and said dividing line were located where the defendant contended they were placed. But the plaintiff further contended that the line the parties undertook to establish was not binding, because the partition they commenced was never perfected by the due execution of partition deeds, and that the plaintiff had repudiated the line set up by the defendant as early as 1857. On this point it was admitted that no partition deed had ever been executed, and that plaintiff although he occupied the westerly half of said 12 1-2 acres up to 1857, from the time he became the owner of Beebe Ballou’s share, peaceably; yet in that year he complained to the defendant, and expressed dissatisfaction with the line, as claimed by the defendant, and forbid his cutting any more grass beyond the line as claimed by the plaintiff, and in 1860 and ’61 cut the whole grass upon the disputed territory — and before the commencement of the action as a co-tenant with the defendant made a demand of his half of the grass of the defendant that grew upon the disputed territory.</p> <p>If, under the circumstances of the case, the whole court shall be of the opinion that the plaintiff is entitled to maintain this action, then we find the damages to which he is entitled for his half of the hay sued for, to be fifteen dollars.</p> <p>1. The division made between Beebe Ballou and Bucklin was void as to plaintiff.</p> <p>2. The deed from Bucklin to defendant in 1851 was also void as to plaintiff. 4 Kent 368; Great Falls v. Worsier, 15 N. H. 413;</p> <p>Wilder v. Russel, Cheshire Co. July T. 1866. And in this case plaintiff would be entitled to recover the full value of the grass of defendant.</p> <p>3. But if it was not absolutely void, it could, at most, only confer authority to exercise, as Bucklin’s agent, his rights as tenant in common to that portion of the land covered hy the deed. Beyond this he had no color of right or authority. And when he took the whole of the grass on any portion of the land within the line of the deed against the prohibition of plaintiff, claiming it as his own property, and converting it to his own use, he became liable to plaintiff for at least one half its value. Reed v. Howard, 2 Met. 36 ; 2 Hillard on Torts 128, 295.</p> <p>I. The deed from Bucklin to Hale was neither void nor voidable. It was a binding deed from Bucklin to Hale, and conveyed all the interest which Bucklin had in the land described in it and bound Bucklin to warrant the title thereto. Whatever interest Bucklin acquired by the parol division passed by the deed to Hale, and until a valid division had been made Hale was the owner of all Bucklin’s interest in the part conveyed by him.</p> <p>II. The parties, Beebe Ballou and Bucklin, intended to make, and supposed,they had made, a valid division. The court has found that this division was according to the line claimed by the defendant. The plaintiff, on the death of Beebe Ballou, went into possession and occupied according to that division, until 1857. He then did not undertake to abandon the division, but he claimed to hold the division, and to hold to a fancy line got up by himself. He did not claim to be tenant in common of the disputed land, but to be the owner of the whole. He forbade Hale’s taking any of the grass, and in the year ’60 and ’61 he took the whole of the grass himself. He did not undertake to repudiate the old division, but he claimed to hold by it, only insisting that the division line was different from that claimed by the defendant.</p> <p>Now we say that so long as he acted under the agreement, and claimed by it and took to himself the hay growing upon his part, he must be bound by the true line according to the agreement as the court has found it.</p> <p>III.It appears by the case that after all the transactions alleged in the writ, and as a preliminary to commencing his action, the plaintiff demanded half of the hay as tenant in common, then for the first time undertaking to question the binding effect of the parol agreement. The court has found that during a part of the time embraced in the writ the defendant took all the hay on the disputed land, and that he did not deliver any part when demanded by the plaintiff.</p> <p>Our position is that trover cannot be brought by one tenant in common against the other under such circumstances. One tenant in common of a chattel has as good a right to tire possession of the common property as the other, and the refusal to deliver is not evidence of a conversion.</p> <p>Under such circumstances, the tenant in common might have brought assumpsit under the statute, but in that case as each had had the crops two years, neither party would have had any claim against the other on a fair accounting in such an action.</p> <p>IV. The finding of the court that the true line of division is that claimed by the defendant is conclusive of the merits of this case. We do not believe that there is any principle of law by which the plaintiff can be. permitted to hold on the parol division in part and repudiate it in part.</p> <p>Neither could he, "if permitted to repudiate the parol division, recover in this form of action as tenant in common, and then turn the defendant round to his cross action to recover the value of his half of the hay cut by the plaintiff in the years ’60 and ’61.</p>

<p>The facts that a person has enlisted, been mustered into the military service of theUnited States, and has since deserted, may be pioved by evidence other than the record.</p> <p>Parol proof that such person served as a soldier for several weeks, and that he then deserted, has a legal tendency to prove the enlistment, mustering in, and desertion. Upon proof of a custom of the trade, known to the parties, by which the substitute broker was understood to warrant that the substitute was not a deserter, it will be taken tfiat the contract was made in reference to such custom, and a warranty will be implied.</p> <p>Where a town paid to such broker money for a substitute, who afterwards proved to be a deserter, and was dropped from the credit of the town, it was held that the sum so paid might be recovered back in an action for money had and received.</p>

Assumpsit on the general counts, for money lent and advanced to, paid, laid out and expended for, money had and received by, interest on money due from, for goods, wares and merchandise sold and delivered to, and services and labor done and performed and materials provided for defendants at said defendants’ request.

Bastardy complaint. The complaint before the magistrate alleges that the complainant on the 21st day of May, 1865,” at, &c., was delivered of a male child, which is still living and is a bastard, and that said child was begotten on the 18th day of August, 1864,” in, &c., by the respondent.

<p>When a complaint for the forfeiture of liquors, under the law of 1855, is duly entered in court, and the proper notices given, any person claiming said liquors may come into court and be made a party to the proceeding.</p> <p>In such cases the court may order such claimants to give security for costs, as the terms of being admitted as parties.</p> <p>Upon being thus admitted, the claimants should file in wilting a statement of their claim, each separate claimant stating the nature and extent of his claim, so that the same may be made a matter of record.</p> <p>Each claimant should also file in writing his plea, which should not only deny the allegations in the complaint, viz., that the liquors are forfeited, but should also tender an issue of title to the liquors in himself, so that the State may traverse that fact and try that question by the jury.</p> <p>The officer seizing said liquors must hold the same till the final order of court. lie cannot allow them to be receipted for, or appraised as perishable property, nor can they be taken from him by replevin.</p> <p>This is not a criminal proceeding, and cannot be commenced by indictment, but is a proceeding in rem, against the liquors, for their condemnation ”as forfeited property, and the complaint is in the natureof a libel.</p> <p>The issues will be tried by the rules applied in the trial of civil causes. Claimants may appear and plead by attorney. Claims and pleadings may be amended, issues joined and verdicts rendered, as in other civil causes.</p>

<p>Where several detached lots of wild and unoccupied land in the same county, are conveyed in mortgage by one deed and upon one and the same condition, an entry by the mortgagee upon one such lot in the name of the whole, would give him constructive legal possession of all the lots in the same county, as against the mortgagors, and also as against any person afterwards entering without right upon any of the lots.</p>

Case for a false aud fraudulent representation in regard to the boundaries of lot 66, in Dummer.

<p>In a written agreement, not under seal, between P. & A., the former agreed that A. should have leave to cut timber and wood on his land, and the latter agreed that P. should have leave to flow his lands by a dam to a certain extent. Held, that though the licenses in this case may have been mutual, so far as that one may have been, given in consideration of the other, yet that they were independent, and that either party may revoke his license, so far as it remains unexecuted, at his option, whether the other'party revokes his or not.</p>

<p>Where a promissory note has been obtained by fraud or duress, or upon an illegal consideration, and it is sued in the name of the endorsee, the burden is upon him to prove that he is a bona fide holder and for value.</p> <p>To show the intent with which certain representations were made, proof of other fraudulent representations of a similar character by the same person and about the same time, is admissible.</p>

Case, for killing plaintiff’s horse on defendant’s railroad. Plaintiff introduced evidence tending to show that in the evening plaintiff’s son turned the horse into a small pasture, belonging to one Hatch, and adjoining said railroad, and that, in an hour or two afterwards, the horse went from the pasture to the railroad, through an insufficient and defective fence between the pasture and the railroad, and was killed upon the railroad by defendant’s locomotive.

<p>In a libel for a divorce for the cause of adultery, a plea of guilty to an indictment for adultery is admissible in evidence, although the proceeding was in another State.</p> <p>The confessions of the libellee, vrhen corroborated by other evidence, may justify a decree of divorce.</p>

Petition for partition. The following facts are agreed upon for the purposes of this decision and uo other: The petitioner, at the time of filing the petition, was seized, as tenant in common with the petitionee, of two undivided one hundred and twentieth parts of two parcels of land and premises in Nashua, described in the petition, the petitionee being seized of the remaining parts of said premises.

Indictment, charging that respondent, June 24, 1867, did falsely make and counterfeit” an order for the payment of $51.68, with intent to defraud. The order was set out in the indictment, and it did not appear that there was any IT. S. Internal Kevenue stamp thereon. The respondent demurred.

Trover for a yoke of oxen, and one and one half tons of hay. The parties agreed to the following statement of facts : The oxen were attached by the defendant, a deputy of the sheriff, on the 29th of November, 1862, on a writ in favor of one Tabor and wife, against this plaintiff.

Writ of entry, on a mortgage. The note to secure which the mortgage was given is as follows : $1500 New Bedford, April 27, 1846. Six years after date, I promise to pay Hannah Noyes, or order, fifteen hundred dollars, with interest annually, value received. Witness : W. F. Dow. J. F. Dearborn. At the date of the note, and always afterwards, the payer and payee lived in Massachusetts. The mortgage was made at the time when the note was given.

This is an appeal from the decree of the judge of probate, settling an administratrix account. The facts appear in the opinion.

Indictment for larceny of a pocket book and money, of the goods, chattels and property of John Eider and John E. Eider, co-partners, in the name of John Eider and son.” Plea, not guilty.

Assumpsit, for money had and received, and on four notes. Plea, the general issue. The notes are substantially like the following: Northvood, Feb. 9, 1859. For value received I promise to pay Henry Dow, or his order, eighty-five dollars, for the use of N. E. P. Union Store, No. 607, on demand, with interest. $85. S. S. Moore, Treasurer. The signatures of the notes were proved.

This is a bill in equity, by Thomas Bassett, against the Salisbury Manufacturing Company, and the Salisbury Mills. The bill, originally against the Salisbury Manufacturing Company alone, was filed in June, 1861, and was amended by adding as a party defendant, the Salisbury Mills, at the December Term, 1863.

This was a petition praying that the damages for flowing back water on land of the defendants by a dam of the petitioners, might be assessed under the provisions of an act passed July 8,1862. The petition sets forth the following general statement of facts : On the 11th of June, 1823, the petitioners were incorporated with power to carry on the manufacture of cotton and woolen goods, and to construct and maintain such dams and canals as might be necessary for that purpose.

Assumpsit for money paid. The plaintiff claimed to recover a sum equal to one half of two joint and several notes for $1000 each, dated March 20, 1860, signed by Pratt and the defendant, and payable to one Hanson, one in one year, and the other in two years from date, less $161.65, the amount endorsed on one of them.

The respondents were indicted and tried jointly for larceny. Each claimed two peremptory challenges, and excepted to the ruling of the court, allowing but two in all to both. The jury returned a verdict of guilty against both the defendants, finding the value of the property stolen to be $320. They moved to set aside the verdict for error in this ruling of the court.

Trover for hay, corn and potatoes. Plaintiffs’ counsel stated in opening that the parties had been tenants in common of the property, plaintiffs owning one half, and defendant owning one half, and that defendant had converted the whole to his own use. Thereupon defendant objected that the action should have been brought under the statute. The court overruled the objection and defendant excepted.

The questions in this case arise on the disclosure of the said trustee, a copy of which is to be made a part of this case. [copy oe disclosure.] Interrogations proposed by plaintiff’s counsel to… Held: that, after issue joined, the debtor in one suit cannot be held in another suit as the trustee of the creditor. Kidd v. Shepherd, 4 Mass. 238; Howell v. Truman, 3 Mass. 121; McQaffrey v. Moore, 18 Mass. 492; Cushing’s Trustee Process, secs. 190, 191.

<p>Trover for a horse, wagon, harness and buffalo robe. The plaintiff claimed as bailee of the officer, who served a writ of attachment in the suit of this plaintiff against one Still. The officer made return that he attached the articles sued for and sundry others on that writ as the property of Still on the 26th of March, 1866.</p> <p>It appeared that Still had boarded, and was then boarding, with the plaintiff, and the plaintiff’s suit against Still was to recover pay for his board. Still was a glass-blower, and also kept a small shop near the plaintiff’s house in Stoddard. The wagon, harness and buffalo were at or near the plaintiff’s house, and the horse was kept by Still, not far distant, in the barn of one O’Neil. The plaintiff’s evidence tended to show that the officer, on the 26th of March', 1866, went with the writ to the plaintiff’s house ; that Still was then sent for and came from the place where he was at work, and was then told by the officer that he had come to attach the articles sued for and some goods in the shop, on that writ; that Still then requested the officer that the goods might not be taken and removed so as to make any public stir; that by the consent of Still and at his request it was agreed between the plaintiff, Still and the officer, that the horse, wagon, harness and buffalo robe should be in the keeping and charge of the plaintiff; that he should hold them as attached, for the officer, on the writ, and that the officer, a little before noon on that day, left the goods in the charge of the plaintiff under that arrangement and returned to Keene.</p> <p>At this time the wagon, harness and buffalo robe were near the plaintiff’s house, and in sight; but the horse was in O’Neil’s barn, and was not seen by the officer. The horse was named, at the time when the arrangement before mentioned was made, as part of the property ajtached. The officer did not take any manual possession of the property.</p> <p>About noon, after the officer had gone, the plaintiff and Still went to feed the horse in O’Neil’s barn ; the plaintiff gave the horse some hay, and Still gave him some meal. O’Neil had no notice of any attachment, or that the horse was in charge of the plaintiff until the horse was taken away by Still.</p> <p>The same afternoon, without the consent or knowledge of the plaintiff, or the officer, Still took the horse, wagon, harness and buffalo robe, drove about four miles to another part of the town, and there sold them all to the defendant. The consideration of the -sale, as stated by the defendant, was thirty dollars in money, and the undertaking of the defendant to carry Still to Keene and. back that night, and then send him to Peterborough, which was done by the defendant, and Still then left this part of the country and has not returned.</p> <p>The court instructed the jury, that, to make the attachment, the officer must have obtained the control of the property by an actual manual taking or by some arrangement that gave him the control of it; that, if it was agreed between Still, the plaintiff, and the officer that the property should be considered as attached on the writ; that the property should be in the control of the plaintiff’ as keeper for the officer ; and the plaintiff took and retained the control of it under that arrangement, so that pursuant to the arrangement Still could not take or use it, this would make a valid attachment so far as Still was concerned, and all others who had notice of the attachment; that if there was no visible change of the property such as would give notice that there was an attachment or some other change in the title, and the defendant was a fair purchaser without notice or knowledge of such facts and circumstances as should lead him to inquiries which would give him information of the attachment, he would hold the property under the sale against the plaintiff and the officer; but that if the defendant had such notice or knowledge he would not hold against the attachment, if so made.</p> <p>The jury returned a verdict for the plaintiff, which the defendant moved to set aside for error in the foregoing instructions.</p> <p>1. The instructions to the jury were sufficiently favorable to the defendant. As between these parties, the officer’s return was conclusive evidence of the attachment. Angier v. Ash, 26 N. H. 99 ; Messer v. Bailey, 31 N. II. 9 ; Clough v. Monroe, 34 N. H. 381; Lathrop v. Blake, 23 N. H. 46; •Dickinson v. Lovell, 35 N. H. 9.</p> <p>2. The verdict of the jury establishes the fact, that the defendant was not "a fair purchaser without notice, or knowledge, of such facts and circumstances as should lead him to inquire, which would give him information of the attachment.” It is not, therefore, material, whether the plaintiff retained actual possession of the property, or not; if he allowed it to remain in the possession of the debtor it was upon the mutual understanding that the attachment was still to subsist; and, as against the debtor, or any one having notice of the attachment, it would not be defeated by the fact that possession was not retained by the plaintiff. Cooper v. JSTewman, 45 N. H. 339 ; Houston v. Blake, 43 N. II. 116 ; Treadwell v. Brown, 43 N. H. 292.</p> <p>3. There is, however, no evidence of abandonment of possession by the plaintiff. The property, having been placed in the custody of the plaintiff by consent of the owner, was, within a few hours, surreptitiously taken by the debtor and sold to the defendant.</p> <p>Had the defendant been a bona fide purchaser, without notice of the attachment, he would not, under these circumstances, hold the property as against the plaintiff. The special property acquired by the plaintiff in the articles attached could not be divested without proof of some want of due diligence in keeping it on his part. Young v. Walker, 12 N. H. 502 ; Gordon v. Jenney, 16 Mass. 465.</p> <p>The case finds that the horse was in O’Neil’s barn, and was not seen by the officer; that there was no possession taken by the officer, and nothing done any further than an agreement; that no possession was taken by the plaintiff as pretended bailee, except that he fed the horse some hay, and the last act was that of Still when he gave the horse some meal. O’Neil knew nothing about it, and the officer from his own knowledge could not have known even that Still had a horse. Now we contend that the officer could give no more possession than he himself had ; that any act of the Ipailee in obtaining first possession, not in the presence of the officer, was nothing; that no possession, in fact, could be obtained when not in sight of the horse; and that to obtain possession it was necessary that O’Neil, in whose possession the horse actually was, should be notified of the fact of the attachment and of the change, otherwise the possession remained the same.</p> <p>In the case of Nichols v. Patten, 6 Shep. 231, the court held, that, to make a valid attachment, it was necessary that the officer should be in view of the property with a power of controlling it, and though he does not have manual possession, yet he must obtain actual possession and custody. Lane et al. v. Jackson, 5 Mass. 163; Dunklee v. Pales, 5 N. H. 528 ; Young v. Walker, 12 N. H. 502.</p> <p>In the case of Coopery. Newman, 45 N. H. 339, the officer took actual possession, and was in view of the property, for which reason it' is not an authority on this point.</p> <p>It appears to us, from the authorities generally, that here there was no attachment; the officer’s return that he attached the horse, should not be held conclusive between the parties in this suit, as the defendant was not privy to the suit of Morse y. Still, and was not interested in the action.</p> <p>The fact that after the officer had left, Still and the plaintiff went to the barn when Morse gave the horse some hay, and Still thereupon fed the horse some meal, is no evidence of any possession of the horse by Morse, or that he ever took possession. It is, rather, evidence of the continued possession of Still, and confirmed by the fact that there was no visible change, nor any notice to O’Neil. This appears, we think, from the facts stated in the case.</p> <p>Supposing Morse did have possession of the property, it would then be required of Morse to exercise due vigilance to obtain possession. But the case shows that he took no care in this respect. He ought not now to maintain a suit caused by his own neglect, other things being equal. *</p> <p>We think, from these views, the defendant’s title ought, from facts stated in the case, to be good against Morse, and that the instructions of the court were exceptionable.</p>

<p>The deposit of a deed with a third person is not a good delivery to the grantee, if the grantor continues till his death to have the right to recall the deed from the depositary, although the grantor may not have intended to retain Buch right, and does not exercise it.</p> <p>The grantor can recall the deed at any time before delivery to the grantee, unless such an arrangement has been entered into between the depositary and the grantee as creates a privity between them.</p> <p>Declarations of an ancestor are admissible against those claiming as his heirs at law.</p> <p>Declarations of a grantor, made subsequently to the grant, are not admissible against his grantee.</p>

This is an action of trover for legal tender notes of tbe value of $350, for gold and silver coins of the value of $16.50, for one silver watch of the value of $30, one watch chain of the value of $5, and one calf skin wallet of the value of $1. The writ is dated Nov. 20, 1865, and wasTentered at the November Term, 1865.

This is a bill in equity, by the widow and heirs of the late Leonard Wilcox, alleging that they, and those under whom they claim, have for fifty years owned a certain spring in Orford, from which they have supplied many families there with water, and among others, four families living upon the Bridge road, so called, and some of them for more than fifty years, and by means of pipes laid down in said road, and extending its whole length of about sixty rods; alleging the…

Trespass for taking the plaintiff’s mare. Held: that an officer had a right to attach the goods of another, intermixed with those of the debtor, and hold them until they were identified by the owner, and a re-delivery demanded ; that he could not be treated as a trespasser for doing what he had a right to do; that if, after identification and demand for re-delivery, he refused to…

This is a bill in equity, and the hearing is on a demurrer to the bill. The pleadings are sufficiently stated in the opinion of the court.

Assumpsit to recover the amount of $6000, with interest thereon, with costs of protest, being the amount of a draft dated Aug. 1, 1864, payable at sight, to the order of W. S. Wheeler, Manager, and drawn by defendant upon Messrs. Bartlett & Smith, of Columbus, Ohio, and protested for non-payment, and paid by plaintiffs supra protest, for the honor of defendant and at his request, he having no funds in the hands of the drawees, or of plaintiffs.

. This is an action of trover for divers articles of furniture and otter personal property, a schedule of which is annexed to the declaration and makes a part thereof. The action was entered at the September Term, 1865. Plea, the general issue. At the September Term, 1866, the parties made the following agreement, which was filed at said term with the clerk: State of New Hampshire, Grafton, ss. Western Judicial District, Supreme Judicial Court, September Term, A. D. 1866.

<p>As a general rule, personal contracts, made and entered into by the citizens of any State, are understood to be made in reference to the existing laws of such State, and under the tacit consent that such contracts shall be governed or modified by such laws.</p> <p>No custom or local usage can be set up, when they contravene or alter the well settled principles of the common or the statute law.</p> <p>Hence, the positive statute law of this State has abolished the local usage of measuring lumber by what has been known as the Blodgett survey.</p>

<p>An unrecorded deed is good against everybody, except subsequent claimants under tbe same immediate grantor without notice of the first conveyance.</p> <p>The record of a fraudulent deed is sufficient notice to subsequent purchasers from the fraudulent grantor.</p> <p>A conveyance without consideration made to defraud the creditors of the grantor, is valid against a subsequent purchaser for a valuable and sufficient consideration, with notice of the first conveyance.</p> <p>Under a plea cf non tenure, if it appears that the defendant is tenant in common with another person, the plaintiff’s writ will be maintained for the share of the defendant so held in common, and will abate for the share of the other tenant in common.</p>

Indictment alleging that the respondents on the. twelfth • day' of March, ''1861,■ at Haverhill,-in! said county, withi force -and- -arms,’did make an assault upon orieGeoi-ge-G».Butler/-and'hinq the said Butler, ■- did then and: there, :b eat,, bruise-, kick, wound and ill treat,: attempting thereby by intimidations to procure said Butler to. avoid voting at: the: annual town meeting :of said town of Haverhill, the said town meeting being then and there legally.and duly…

The questions in this case arose on a new trial of the same issues that were tried in Bell v. Woodward, reported in 46 N. H. 315 ; the first issue being on the question whether the description in the mortgage deed from Joshua Woodward to Joseph Bell, dated Feb. 28, 1842, included the Samuel Ladd farm.

<p>Under ch. 188, sec. 22, Rev. Stats., the party giving notice to take depositions is liable to pay tho statute compensation for. the other party’s travel if no depositions are taken, although the party giving the notice acted in good faith, and expected to be able to procure the attendance of his witnesses, and used reasonable diligence to procure such attendance, and had no notice that they would not attend.</p> <p>Under the same statute, “twenty-five cents amile'.for actual travel” each way, may he recovered.</p>

<p>Trespass for taking the plaintiff’s valise and the wearing apparel in it, on the first of September, 1862.</p> <p>Plea, the general issue, with the following statenaent: The plaintiff</p> <p>was a citizen of Guildhall, Vermont, between the ages of 18 and 45, and liable to be enrolled and drafted in that town. Troops had been called for by the President of the United States, and such measures had been taken by the general government and the government of Vermont, that the quota of that State and of the town of Guildhall had been ascertained. A draft had been ordered to take place on the 3d of September, and all citizens of Guildhall liable to draft had been enrolled, and among them the plaintiff, who thereby became liable to be drafted on the 3d of September. This draft was postponed to the 10th of September. The War Department, on the 8th of August, 1862, issued order No. 104, published on the 13th of the same month, which provided that any person liable to draft, who should absent himself from his county or State before the draft was made, should be arrested by any provost marshal or other United States or State officer, wherever he might be found within the jurisdiction of the United States. The plaintiff had left Guildhall, and was absenting himself from that town and the State of Vermont, to avoid the draft. The defendants, being civil officers in this State and county, and believing that the plaintiff was secreting himself in Northumberland, in this county, in order to avoid the draft, went to Northumberland for the purpose of arresting him ; and not finding him, but finding his clothes, they took and detained them, as they lawfully might, for the purpose of securing his arrest.</p> <p>The plaintiff moved the court to reject the brief statement, as not setting forth any legal defence, which the court declined to do, and the plaintiff excepted.</p> <p>The plaintiff proved the taking of the property by the defendants. The defendants offered evidence that they were, one, the sheriff of this county, the other, his deputy; that they were applied to by the selectmen of Guildhall, and informed that the plaintiff was secreted in Northumberland, at the house of one Hawley, for the purpose of evading the di’aft and escaping to Canada. Whereupon they went to Hawley’s house for the purpose of arresting the plaintiff, and not finding him at Hawley’s house, but finding the valise filled with clothing, which they were informed had been left there the night before for the plaintiff by his father, they took and detained the valise and contents. The defendants offered a copy of general order No. 104, authorizing the arrest of persons absenting themselves to evade the draft, as is set forth in the brief statement sent from the War Department to the adjutant and inspector general of Vermont, by him certified as a true copy; and a witness who testified that the copy offered was a true copy of the original on file in the adjutant and inspector general’s office. To the admission of this copy the plaintiff objected, on the ground that there was no competent evidence of its being a true copy of the original order, and also that the order itself gave no legal authority for the defendants to act in the premises ; but the court admitted it, and the plaintiff excepted.</p> <p>The defendants offered other proceedings of the War Department and of Vermont, to show that troops had been called for, and the quota of Vermont and'of Guildhall ascertained ; that a draft had been ordered on the 3d of September, 1862, and that on the 22d of August, that year, the plaintiff was duly enrolled in that town as liable to the draft. The plaintiff testified that he left home on the 12th of August, 1862, and the next day went to Canada, where he remained till the next winter. But it did not appear that the authorities of Guildhall had any knowledge as to where the plaintiff was, and one of the selectmen of Guildhall testified that, on the last day of August, 1862, he received notice from four individuals, all residents of Guildhall, that the plaintiff was concealed in Northumberland, and that the plaintiff’s father, -who resided in Guildhall, had gone to carry a package of clothes to him there. This witness had just seen the plaintiff’s father go in that direction with a package of something in his wagon. This witness and others followed on to Northumberland, where they arrived in the early evening, and remained concealed about Hawley’s premises, where the horse and wagon of the plaintiff’s father was ; that in the course of the evening this witness saw the plaintiff’s father come out of Hawley’s house with another man, whom the witness believed to be the plaintiff; that they went together into a small building near by; that after being in there a while they came out and went back again into the house together; that the plaintiff’s father then carried the valise from his wagon into the house, and afterwards left for home; that, this being Sunday night, the wetness went to Lancaster and procured the defendants to go with him, early on Monday morning, to Hawley’s house, to arrest the plaintiff. The defendants did not find the plaintiff at Hawley’s house, but they found the valise, and being informed it belonged to the plaintiff, they took it and examined it, and finding the contents to be wearing apparel, they concluded to keep it a while, one saying they thought the plaintiff would not be likely to leave for Canada without his clothing, and another that he thought by detaining the clothes, it would lead to the arrest of the plaintiff.</p> <p>The plaintiff’s evidence tended to show that he was not, in fact, at Hawley’s, and that his father carried the valise and clothes there, in order that Hawley might carry them to his son in Canada, and that Hawley went to Canada the next day; that Hawley’s wife gave Colby notice when he came that the plaintiff was not there, to her knowledge ; that the plaintiff called on Colby for his valise and clothing a short time before this suit was brought, and that Colby declined to give them up at that time, but said he would leave them with one Gove, where they might be had, if they concluded to give them up.</p> <p>The court instructed the jury that if they found that the defendants, believing that the plaintiff was at Northumberland, and was about leaving for Canada to avoid the draft, or, believing the plaintiff Avas secreting himself there for the purpose of absenting himself from Guildhall and so avoiding the draft, they Avere justified in searching for him ; and if, when they found his clothing there, they believed that by taking and detaining it, they would prevent his leaving for Canada, and would be able to secure his arrest, and they thus acted in perfect good faith, and solely for the purpose of securing the arrest of the plaintiff, they would be justified in taking and detaining the property a reasonable time for that purpose; that if the jury should so find, they might find for the defendants, otherwise, for the plaintiff.</p> <p>The plaintiff requested the court to instruct the jury, that, "if the taking of the property had no tendency to lead to the arrest, and a person acting reasonably would not have done so Avith that view, then the defendants were liable,” which instructions the court declined to give, except so far it might be embraced in the instructions already given.</p> <p>The jury returned a verdict for the defendants, which the plaintiff moved to set aside.</p> <p>1. There was no laAv of Congress authorizing the order of the War Department, No. 104, and any person, acting under it, acted without right.</p> <p>2. That order is in violation of article 4, of the amendment of the constitution of the United States.</p> <p>3. The valise and wearing apparel were taken by defendants, and the seizure is attempted to be justified upon the ground that they had a right to arrest the plaintiff, and that this reprisal upon his goods Avould have a tendency to make him surrender himself. The court instructed the jury that, "if, Avhen they found his clothing there, thej believed that by taking and detaining it they would prevent his leaving for Canada, and would be able to secure his arrest; and that they thus acted in perfect good faith, and solely for the purpose of securing the arrest of the plaintiff, they Avould be justified in taking said property and detaining it a reasonable time for that purpose.”</p> <p>. We think it will not be contended, that, in general, there is any laAv that an officer, in order to make an arrest, may seize the property of the person he is seeking to arrest. And if there is such a law applicable to any case, it seems to us that the lavv should be certain and unequivocal, and that it does not depend upon what the officer making the seizure helieved would be the effect of it; but, on the contrary,* if the right existed to be exercised at discretion, it should have been exercised reasonably ; and of this the jury should be the judges, and not the officer. See Hilliard v. Gould, 34 N. H. 241, and authorities there cited ; 3 Allen 311.</p> <p>When it is the duty of an officer to make an arrest, he must do it in a proper manner, and if he cannot do it in that way, he should not do it at all. Hooper v. Lane, 52 Com. Law 1095 : llsley v. Nichols, 12 Pick. 270.</p> <p>If defendants were fully authorized to arrest plaintiff, which we deny, they should use lawful means only. To seize and take a man’s clothing, if he is not in it, is no part of an officer’s duty, in a case like this, and it cannot be justified on the ground that he believed that that might bring the owner within reach, so that he might be arrested, no matter how good his intention might have been, for it is a maxim of the law "that no lawful thing founded upon a wrong act can be supported.”' Luther v. Bruin, 11 Mod. 50 ; llsley v. Nichols, above cited.</p>

The town of Stewartstown is summoned to answer to the plaintiff: In a plea of the case for that there was on, &c., a certain public highway in said town of Stewartstown, which highway the said inhabitants of said town were then, and still are, bound to keep and maintain in good and sufficient repair, and free from all obstructions, which said highway is known as the Hollow road,” &c. ■ The declaration, after describing the road, alleged that the plaintiff on, &c., was…

Assumpsit upon a promissory note, signed by said Hilliard, dated August 22, 1861, payable to the deceased or bearer on demand with interest. Defendant filed a confession of §11.34, and pleaded the general issue as to the residue. It appeared that this note was given in settlement of a suit, which said Pitkin had brought against the defendant, in which writ there was a count for money had and received, and another for goods sold and delivered.

<p>Case against defendant as common carrier of goods and merchandise between Northumberland, N. H., and Milwaukee, Wis., alleging that, as such carrier, defendant was bound to convey goods entrusted to its care and received by it, without unnecessary delay, so that no damage might happen to the owner of such goods, in consequence of such unnecessary delay. Plaintiff alleges that he, on the first day of August, 1862, was the owner of two hundred bags, calculated and intended for carrying corn, and that he, on the same day, delivered the same to defendant at said Northumberland, to be carried from said Northumberland to said Milwaukee, and there to be delivered to Horton & Fowler, traders and agents of said plaintiff in said Milwaukee, who were to fill the same with corn and return the same to plaintiff by due course of freight. That defendant received said bags and undertook to carry and deliver the same as aforesaid.</p> <p>Yet that defendant did not deliver the said bags to said Horton & Fowler until after the first day of November, 1862, which was an unnecessary, careless and wilful delay in the transportation and delivery of said bags, whereby the said plaintiff suffered damages in the sum of three hundred dollars. The plaintiff further sets forth, as cause of special damage, the fact that in consequence of said bags not being seasonably received by said Horton & Fowler, plaintiff was obliged to purchase barrels to transport said corn in, at said Milwaukee, and pay for the same much more than they were worth when received at said Northumberland; also, that the price of corn had risen twenty cents per bushel at said Milwaukee during said delay, so that he was obliged to pay and did pay that amount per bushel more for said corn in November, 1862, than he would have been obliged to pay at the time when said bags should have been delivered there by defendant; and also, that during said time, the defendant had raised the price of freight upon its road, so that plaintiff was obliged to pay and did pay a much larger sum as freight upon his said corn in November, 1862, than he would have been obliged to have paid if said bags had been seasonably delivered to said Horton & Fowler as aforesaid.</p> <p>Plaintiff’s writ may be referred to as part of this case.</p> <p>Plea, general issue.</p> <p>Plaintiff testified that he delivered, about the first of August, 1862, two hundred bags to one Cummings, who had charge of the depot at Northumberland, and who was admitted to be the depot master and general freight agent of defendant company, at said Northumberland; that said bags were all encased in one package and properly directed to "Horton & Fowler, Milwaukee, Wisconsin that said Cummings was notified, when he received said bags, that they were sent out to be returned filled with corn; that said Cummings received the same and forwarded them from his depot on the way to said Milwaukee. But that in consequence of their not being received there, he waited until November, 1862, when he ordered his corn to be sent in barrels, which was accordingly done. And his testimony tended to show that, in consequence of the delay in delivering said bags at Milwaukee, he was obliged to pay more for barrels to transport his corn in than they were worth to him here; that he was obliged to pay a higher price per bushel for corn at Milwaukee, and a higher price for the freight on the same than he would have been obliged to have paid, had he bought said corn and had it forwarded to him at the time when such bags should have arrived at Milwaukee, by usual course of freight. To all this evidence as to damages, defendant objected on the ground that there was no allegation in the writ that would lay a foundation for any such damages. But the court admitted and defendant excepted.</p> <p>Plaintiff testified that he heard nothing from his bags until April, 1863, when he applied to said Cummings, who still continued to be depot master and general freight agent at said Northumberland, for the defendant for some information in relation to them; that said Cummings informed him that he had ascertained that his bags were at Sarnia, in a freight depot of the defendant under a large lot of flour. To this statement of Cummings, defendant objected on the ground that his statements on that subject were not within the scope ef his agency, and could not bind the company, and hence were incompetent. But the court admitted the testimony, and defendant excepted.</p> <p>Defendant also objected that the defendant could not be made liable, as no knowledge was brought to the company, when the bags were left there, that they were intended to be filled with corn. That the remark to the station agent when the bags were left, that they were left to be filled with corn was not sufficient. But the court overruled the objection and defendant excepted.</p> <p>The court charged the jury that plaintiff could recover his actual damage caused by a failure on part of defendant to carry and deliver said bags in ordinary and proper time for such transportation, notwithstanding he did not pay the freight on the bags in advance, if the company received them and undertook to carry them with the understanding that all freight was to be paid on their return, to which defendant excepted. Verdict for plaintiff for $100, and motion to set the same aside. Defendant also moved in arrest of judgment on the ground that plaintiff’s declaration is insufficient.</p> <p>1. In this case, in order to prove that the bags were not carried agreeably to the undertaking of the defendant company, the plaintiff was allowed to prove that he inquired of Cummings, the station agent, as to where they were, and that Cummings informed him that he had ascertained that the bags were at Sarnia, in a freight depot, under a large lot of flour. That this information was given to the plaintiff in April, 1863.</p> <p>This was a statement by Cummings long after the property had passed from his control.</p> <p>It would also seem to appear to have been a matter about which Cummings had no knowledge, and that he ascertained about the bags from somebody else.</p> <p>This was an unauthorized statement which cannot be used as an admission against the defendants. 1 Greenl. Ev. secs. 113, 114; Story on Agency, 134 to 139 ; Robinson v. Worcester Railroad, 7 Gray 92 ; Burgess v. Wcireham, 7 Gray 345 ; Bemerrit v. Meserve, 39 N. H. 521; Woods v. Banhs, 14 N. H. 101.</p> <p>2. The three last counts in the declaration are too defective to sustain a judgment. They do not set forth the claim in any intelligible manner in themselves, nor by reference to the first count. The evidence to prove the special damages was all admitted upon these defective counts, as the special damage is not set forth or alleged in the first count, and the verdict of $100 was found upon this evidence. The judgment should, therefore, be arrested, as the verdict was general. Blanchard v. Fislc, 2 N. H. 398 ; Sawyer v. Whittier, 2 N. H. 315; Gould’s PI. ch. 10, sec. 58, and authorities there cited ; Bryden v. Bryden, 9 Pick. 546.</p> <p>I. Declarations of agents within the scope of their authority, and accompanying the acts they are authorized to do, bind the principal. Angelí & Ames on Corp. sec. 309. The case finds that Cummings was the general freight agent of the defendants. He was, then, the proper person to transact all business with regard to freight at that point on the defendant’s road. And it is respectfully submitted that making inquiries and search for lost or missing freight received at or forwarded to that station, would come properly within the scope of such business ; and that his declarations to the owner of the freight made in connection with, and relative to, such a search, would be fully within the scope of his authority, and accompanying the act he was authorized to do. Meserve v. Conn. R. Railroad, 6 Gray 450 ; 1 Greenl. Ev. sec. 114, a., Red-field’s Ed.</p> <p>II. The motion in arrest of judgment stands upon the alleged insufficiency of the plaintiff’s declaration, and can only be sustained by such a substantial defect as would have sustained a general demurrer. No matter of form is sufficient. Gould’s PI. ch. 10, sec. 11.</p> <p>The declaration, though not skillfully and formally drawn, is still substantially sufficient, and contains, in reality, but one complete statement of the plaintiff’s cause of action, i. e., of the circumstances which constitute it; or, in other words, but one count. Gould’s PL ch. 4, secs. 2 and 3.</p> <p>The last three sections of the declaration do not even attempt to state a new cause of action, or to make a new or different statement of the cause set forth in the first section, but simply explain and qualify the general allegation in the first; and it is submitted that the fact that these sections are, in form, somewhat similar to new counts, will not change the character of the declaration, for the court will look rather to the substance, than to the form of the pleading. Gould’s PL ch. 10, sec. 8.</p>

Appeal by Hezekiah Parsons from allowance of plaintiff’s claim against said estate, entered in the Southern Judicial District of Coos. It is admitted by the parties, that the commissioner on said Geo.