Volume 48 — New Hampshire Reports

This is an action on the case for diverting the current of the Merrimack river by means of certain breakwaters and other obstructions, placed in that river, upon the eastern side thereof, by reason of which the current was thrown against the western shore and the plaintiffs land washed away, and he was compelled to rubble his hanks to prevent further encroachments.

The parties agree to the following statement of facts : This is an action of assumpsit. One Louis B. Lent, of the city, county and State of New York, was indebted to the plaintiffs,,in the sum. of $1000.25, on which they had obtained judgment in New York. May 30, 1867, the plaintiffs brought an action against Lent on said judgment and attached a circus tent and other property at Manchester. * The defendant claiming the property as his, replevied the same on the same day.

<p>Case. The declaration alleged that, "at said Hooksett, on the 28th day of October, A. D., 1866, there was, and for a long time had been ánd still is, a certain common and public highway leading from Concord, in said county, through the said town of Hooksett to the town of Chester, in our county of Buckingham, known as the 'old Chester road,’ of which said common and public highway, so much as lies in the town of Hooksett, the said town of Hooksett, during all said time, was and is bound by law to keep in good and sufficient repair, free from defect or obstruction, and suitable for the travel passing thereon, so that all persons having occasion therefor might and may pass and repass safely thereon, by and with themselves, their horses and carriages. And the plaintiffs aver that, at said Hooksett, -on said 28th day of October, a portion of said highway leading from and lying easterly of the dwelling houses of E. Johnson and C. C. Johnson was not in good and sufficient repair, and was narrow and obstructed and encumbered with a certain pig-sty and pig-yard projecting into and localed upon the limits of said highway, greatly diminishing the necessary width of said highway, and rendering the same unsafe and dangerous, and that the said town of Hooksett, well knowing the premises, on said 28th day of October, did suffer and permit the said obstructions to exist, and to be and remain located upon and projecting into the limits of said highway, and did knowingly suffer and permit the said pig-sty and pig-yard to be occupied with and by certain swine. And the plaintiffs aver that on the said 28th day of October, the said Margaret Bartlett was lawfully travelling over and upon said highway, riding in a certain wagon, drawn by a horse, and driven in a prudent and proper manner by one Andrew J. Langley, the whole weight of the load upon said wagon being less than three tons, to wit, of the weight of four hundred pounds and no more." And the plaintiffs say that as the said Langley was riding and driving the said horse and wagon, the said Margaret being in said wagon, the said horse and wagon came along in said highway to a point nearly opposite the said pig-sty and pig-yard; and that there were in said pigsty and pig-yard, by the sufferance, permission and negligence of the said town of Hooksett, and occupying the same, divers, to wit, five swine ; and the said swine then and there started and ran in and about said pig-sty and pig-yard, and by starting and running about, as aforesaid, and by certain loud noises which the said swine then and there uttered, so frightened the said horse, driven by the said Langley, as aforesaid, as to cause him to jump and sheer suddenly and violently, thereby tipping up the said wagon so that the said Margaret was thrown violently out and upon the ground, and was greatly bruised, lamed and injured in her head, arms, back, shoulders, legs and sides, and her right arm broken, and her-said right arm dislocated, at or near the shoulder joint; by means of all which the said Margaret has been made sick and disabled, and has suffered and still suffers great pain and distress, and is unable to perform any labor, and is likely to continue lame and disabled during her natural life ; all which is by reason of the negligence of the defendants, and the obstruction and defect in said highway, as aforesaid, and without the fault of the plaintiffs, or either of them, or of the said Langley.”</p> <p>To this declaration the defendants demurred generally.</p>

<p>A default will ordinarily be struck off, upon 'terms, to enable a defendant to plead a discharge in bankruptcy obtained subsequently to the default.</p>

Assumpsit to recover the amount of a promissory note made by the defendant, and payable to the plaintiff, on demand with interest. The plea was the general issue, with a brief statement that the cause of action did not accrue within six years.

<p>If a suit be prematurely brought against an executor upon a debt due the deceased, under sec. 1, ch. 161, Revised Statutes, being within one year from the granting of administration, the executor must plead that fact in abatement, and not in bar.</p> <p>But in a suit against such executor on such claim, the plaintiff must prove affirmatively, as a part of his case, even under the general issue pleaded, that his claim was presented to the executor within two years from the granting of administration, according to see. 2 of said chapter ; and without such affirmative proof he cannot recover.</p> <p>When such suit is brought against such executor, on such claim, more than three years after the granting of administration, such executor (except in certain specified cases,) ■ must plead in bar, the limitation contained in section 5 of said chapter. The executor is not at liberty, in such case, to omit to plead the limitation of that statute, as he may the general statute of limitations where the debt is otherwise just.</p> <p>Nor can the executor, by any new promise or guaranty, take said claim out from the operation of this provision of the statute, but the same will be barred after the expiration of said three years, as against the estate, though said executor may make himself personally liable by such new promise.</p>

Assumpsit for work and labor, performed by the defendant from January 9, to February 8, 1867, upon the highway, $20.25. The writ contained the common money counts, and was dated March 23, 1867. The writ also contained one count on account annexed. The defendant has paid into court «under the common rule, $11.50, and pleaded the general issue as to the balance. The money was paid .into court May 9, 1867.

Debt upon written agreement. The declaration is annexed marked A., and the agreement and return of the referees thereon is annexed marked B. To this declaration there was a general demurrer and joinder in demurrer; and the questions of law thus raised are hereby reserved.

Assumpsit on a policy of insurance issued by said company to the plaintiff on the 12th day of January, 1864. For the-purposes-of-this decision, and no other, the following facts .-are agreed upon : The property insured was destroyed’by fire on the 19th day of March, 1867. The plaintiff was the owner of- two undivided third.parts-of-the same.

This is an action of assumpsit on a draft or order, of which the following is a copy: Clinton, Dec. 16, 1861. John Weare, Sir: Please pay to Geo. W. B. Dakin two hundred and fifteen dollars 45-100 in exchange on New York, when Mr. Dakin retires the notes of Dakin & Co., for four thousand dollars, value received.- J. G. GRAVES. Plea, the general issue with a set-ofF. Said draft or order was never accepted by said Weare, but on the 13th of February, 1862, was protested.

Assumpsit for work and labor of the plaintiff for defendant from November 19, 1864, to April 26, 1865, in all 110 1-2 days, at $2.50 per day.

<p>Assumpsit to recover certain moneys claimed to be due from the defendant as prudential committee of said district.</p> <p>At the annual meeting of the said' district in March, 1865, the defendant was chosen prudential committee of said district for the ensuing year. The sum of $81.03 was apportioned to the district as its proportion of the school money for the year 1865. ■ And in December, 1865, the-same was paid over by the treasurer of the town to the defendant as such prudential committee.</p> <p>During the year 1865 a school was maintained in the summer for eight weeks and in the winter for six weeks, and teachers were hired by the defendant as such prudential committee, and he also made some repairs on the school house.</p> <p>At the annual meeting of the district in March, 1866, the defendant was not present and did not make any report of his doings as such prudential committee, nor has he at any time made any report of his doings or accounted to the district or any one else for the expenditure of the school money paid him, although demand has been made on him by his successor in office for such account, and for the balance remaining unexpended in his hands.</p> <p>The case was originally tried before a justice of the peaee, and comes here by appeal.</p> <p>The defendant having been put upon the stand as a witness before the justice, declined to answer any question touching the amounts of the payment made of the school money received by him, or any part of it, on the ground that he could not testify relating to it without subjecting himself to a criminal prosecution.</p> <p>The district claim that there is a balance of the school money in the defendant’s hands unexpended, and this suit is brought to recover the amount.</p> <p>It is agreed that this case be submitted on the above statement of facts, judgment to be rendered for the plaintiff for the amount due, to be determined by an auditor appointed by the court, otherwise for the defendant according to the opinion of the court.</p> <p>S. N. BELL, Plaintiff’s Attorney.</p> <p>Yv M. LITTLE, Defendant’s Attorney.</p> <p>’The principal question involved in this case is, whether a school district can recover of the prudential committee, after his term of office has expired and his successor been appointed, the balance of the school money assigned by the selectmen to the district, under the provisions of the statute, Rev. Stat. ch. 72, sec. 4, and paid over to the prudential committee, and by him unexpended.</p> <p>It is held in School District in Moultonborough v. Tattle, 26 N. H. 470, that an action will lie in favor of a school district against a prudential committee man to recover money of the district, paid by him to a teacher for his services, who had not made a report to the superintending committee according to law.</p> <p>The case substantially finds that the school money assigned by the selectmen to the district, and paid over to the prudential committee is the money of the district; and that an action of assumpsit will lie in favor of the district to recover the same when it has been improperly expended. And there is no reason in principle why he should not in like manner be held to account for any unexpended balance in his hands, remaining after his term of office had expired and his successor appointed. And it is held in Barrett v. School District in Bow, 37 N. H. 449, that if, when a prudential committee goes out of office he holds the funds subject to no charge which by his contract he has created upon it, it is obviously his duty to pay them over to his successor in office, and for his neglect to do so he may undoubedly be held to answer either to the district or to his successor.</p> <p>In the present case the defendant made no report of his doings, or expenditures to the district, and refused to disclose what disposiiion he had made of the funds, on the ground that he could not do so without criminating himself.</p> <p>This necessarily leaves him in the position that he has expended such funds unlawfully, and must be charged for the amount received by him from the selectmen. And if there is any balance of the fund unexpended he is accountable for that to his successor after demand made, even if it were held that his refusal ,to show what had been done with the fund.for the reason given, was.not to be taken as an admission that he had disposed of it in some mode not authorized by law.</p> <p>The cáse of School District v. Esty, 16-N. H. 146, seeming to conflict with the cases above cited, must be held to be substantially overruled by the later cases.</p> <p>This action cannot be maintained. • 1. Because "a school district cannot maintain an action of assumpsit against the prudential committee of the district to recover a balance of the school money raised by the town, assigned by the selectmen and paid over to the committee. School District v. Esty, 16 N. H. 146; Barr v. Deniston, 19 N. H. 178 ; Stebbins v. School District, 16 N. II. 510; 4 Cush. 599 ; 7 Cush.* 478.</p> <p>The statute in’ force at the time the case School District v. Esty was decided, was .the Revised Statutes, ch; Y2, sec. 4, and said ¡statute is the law now.</p> <p>The cases School District v. Tuttle, 26 N. H. 470, and Barrett v. School District, 37 N. II. 449, are not cases in point, and arose under a different state of fn,cts. If the decision.in 16 N H. 146, is law, (and it has not been overruled,) the plaintiff cannot-maintain his action.</p> <p>2. Because sec. 6 ch. 72 Revised • Statutes provides .that if the .money assigned and paid over to The prudential, committee of any district shall be by him-not expended according to law, he shall forfeit for each offence a sum not less than the sum so unexpended, or not legally expended, and not exceeding twice said sum to be recovered by indictment, or by information, &c., and this case is an attempt to proceed in a manner contrary to that pointed out by the statute. School- District v. Gurrier, 45 N. II. 573. The rule is that if a duty, and a-remedy for it were- created by -the same statute, then that remedy must be followed. Stolces v. Sanborn, 45'.N. Ii. 278 ;. State v. Wilson, 43 N. H. 419. The duty of the prudential committee and’the remedy for the violation of that duty, are created by the same statute, consequently that remedy is the. one that, must be followed; it is not a cumulative remedy.</p> <p>The defendant in this case refused to answer .’as a witness' before the justice, because he believed that .the district was seeking for evidence that they-might proceed against him under -the statute, and. he did not wish to furnish evidence to get himself indicted. .Eaton v.-’Farmer, 46 N. H. 202.</p>

Assumpsit on the statute of July 3, 1863, against the owner of a dog alleged to have been concerned in killing three sheep of John Towle. The defendant demurred on the ground that the statute was unconstitutional The court overruled the demurrer. The defendant owned a dog and the sheep were killed; the only question of fact was, whether they were killed by the defendant’s dog.

This is an action of assumpsit on two promissory notes, one for $3689.25, dated July 20, 1860, the other for $2432.33, dated October 24, 1860, both on six months.

<p>Assumpsit, for labor and materials. Writ dated February 12,1866. By a lease dated March 15, 1864, the plaintiff hired a house of the defendant for the term of five years, "the said Smith yielding and paying therefor rent by” certain specified repairs on the house, "and the said lessee promises to pay the said rent in the repairs, work, materials and additions, &c., as above set forth, all to be completed during the years A. D. 1864 and 1865,” "and that the lessors may enter to expel the lessee if he shall fail to pay the rent as aforesaid.”</p> <p>The plaintiff did not make all the repairs before 1866, and in Janu-ary, 1866, the defendant expelled-the plaintiff from the house.</p> <p>This suit was brought to recover for the repairs made by plaintiff in 1864 and 1865.</p> <p>The defendant introduced evidence tending to show that the repairs made were useless; that the materials were of such quality and the work was done so badly as to constitute a breach of the contract on the part of the plaintiff.</p> <p>The defendant moved for a nonsuit, the court pro forma overruled the motion, and defendant excepted.</p> <p>The court pro forma instructed the jury that plaintiff was entitled to recover if the benefit derived hj the town from the repairs was greater than the' damage suffered by ime town from the breach or breaches of the contract by tip plaintiff, to which instructions, defendant excepted.</p> <p>The jury returned a verdict for the plaintiff, which defendant moved to set aside, and this case was reserved.</p> <p>cited and commented on Britton v. Turner, 6 N. H. 481; Waclleigh v. Sutton, 6 N. H. 15 ; Davis v. Barrington, 30 N. H. 527; Horn v. Batchelder, 41 N. H. 86; 2 Starkie Ev. 97, 98, 643; 3 Starkie Ev. 1769— 70; Buller’s N. P. 139, Heclc’s Gase; Hey wood v. Leonard, 7 Pick. 181; Bassett v. Sanborn, 9 Cush. 58; Smith v. Society, 8 Pick. 178 ; Van Deusen v. Blum, 18 Pick. 231; Snow v. Ware, 13 Met. 42 ; -Heed v. Scituate, 5 Allen 23; Taft v. Montague, 14 Mass. 282 ; Phelps v. Sheldon, 13 Pick. 50; Gleason v. Smith, 9 Cush. 484; 2 Smith’s Lead. Cases, 13, 14, and notes; Jewett v. Scofield, 4 Cowan 566; Myrick v. Slason, 19 Vt.' 166; Hayden v. Maddison, 7 Green. 78; Livingsdale v. Livingston, 10 Johns. 36; Cook v. Munster, 4 B. & P. 355.</p> <p>In law the plaintiff cannot recover because the contract here was express. And the court cannot make a contract different from what the parties have expressly provided. Britton v. Turner, 6 N. II. 491, bottom of page.</p> <p>In this case there is an express provision of the parties, which is the exception made in Britton v. Turner. The plaintiff agrees to take his pay for the repairs done to these premises, by their occupation, and in tire event of his not fulfilling the entire conditions, to forfeit his pay, that is, his right of occupation.</p> <p>The case at bar, then, differs from the principle involved in Britton v. Turner. Had the agreement been in the latter case, that the plaintiff’s failing to fulfil his entire contract should forfeit his right to claim pay, then it would have been parallel with the one under consideration. There the law implies a promise to pay because of benefits received and' accepted, there being no agreement to the contrary ; here, the law discovers an express contract, in which the plaintiff stipulates for payment in a certain way, and renounces this right upon the failure of certain conditions. "The law will not imply and raise a contract different from what the parties have entered into.” Then, too, the defendant town has not accepted the work done here as in that case.</p> <p>Also, secondly, the plaintiff cannot recover even if in law he was entitled to receive anything, because he has brought his action before he had any right of suit.</p> <p>Defendants say he could not ínaintain a suit until the end of the five years.</p> <p>If plaintiff could be permitted to recover now, he. would compel the defendants to pay in advance and in one sum, that which the defendants were to pay day by day by rent of land for five years. By what law or equity can the defendants be now asked to pay that which by their agreement they were not to pay for three or four'years to come.</p> <p>Thirdly, the court, by their instructions, permit the jury to assess damages for a present sum without deduction therefrom for payment before the time the plaintiff had agreed to accept payment, and before the time defendants had agreed to pay. They allow them to assess damages for the plaintiff now, without reference to the fact that defendants bv the contract even if fulfilled, would not have been entitled to recover for the amount to become due hereafter.</p> <p>Here the defendants say even if damages could in any event be recovered, it could only be at the end of the five years and in a gross sum, as the contract cannot be divided, but the payment is one gross sum of rent for five years.</p> <p>But here the express agreement clearly is that plaintiff is to be paid for his repairs by five years’ use, if all repairs are made, and if all repairs are not made, then he is to be paid by two years’ use of the premises. He has had all the payment he contracted for, namely, two years’ use, as he did not make all the repairs.</p> <p>Again, the powers of towns are limited. The committee who leased the premises derived their authority, by the vote of the town, to lease said premises; and upon the conditions of the lease. If it is holden that the plaintiff may recover upon this suit, then the character of the contract is changed, and a burden is imposed upon a town, which it never voted to assume. The town by its committee did certain acts in a certain way, which was within its authority. The plaintiff knew the limits within which the town acted and the liabilities it assumed, and he cannot by avoiding his part of the agreement impose upon a party of limited powers, a liability not within their powers, because they never undertook to exceed them to that extent. If he deals with a party of limited powers, he cannot by his own wrong doing extend his rights and their liabilities.</p>

<p>Where the cauíe of action in the declaration is single and indivisible, a plea of tender or a.confession is an admission of the cause of action, laid in the declaration.</p> <p>But where the cause of action is divisible, as where there are several counts in the declaration, a plea of tender or a confession, accompanied by the general issue, is held simply to admit some cause of action alleged, and that plaintiff is entitled to recover the amount tendered or confessed for such cause, but the tender or confession is no admission beyond that.</p> <p>Defendant town elected no highway surveyors at its annual meeting, and the selectmen directed W. to act as a highway surveyor in his district, and he did so. They issued a warrant in common form, addressed to him as highway surveyor of said district, directing him to collect in labor the several taxes specified in his list, and defining the limits of his district, &c., which warrant he accepted and acted under through the year, and after he had caused all the taxes in said warrant to be expended in labor in said district, he purchased of D. for the town a lot of stones to be used in repairing a bridge in said district and agreed upon the price of the same, as such surveyor, and the stones were taken and used accordingly. In a suit by D. to recover of the town the price of the stones, held, that the town could not be heard to deny that W. was highway surveyor in said district, even though his appointment may not have been in writing, or his appointment and the certificate of his oath of office may not have been recorded in the records of the town.</p> <p>The selectmen of a town, as its prudential officers, may appoint an agent to build or repair highways or bridges, in cases where by law it becomes their duty thus to build or repair as such selectmen.</p>

<p>Assumpsit upon the following offer of a reward by the selectmen of the town :</p> <p>$300 Reward. Whereas, on the night of September 27th, some person or persons broke and entered the dwelling house of Charles Haley ; on the night of September 28th, broke and entered the bake-house of F. M. Davis, and on the night of the 27th of October instant, broke and entered the market-house of Garland & Conner, and stole various articles from each place. Therefore we, the subscribers, offer the above reward for the apprehension and conviction of the offenders in these cases, or a proportionate reward in each case.</p> <p>Exeter, Oct. 31, 1864.</p> <p>(Signed,) Jewett Conner, ■ ) Selectmen</p> <p>Solomon J. Perkins, > of</p> <p>Joseph T. Porter, ) Exeter.</p> <p>Defendant demurred, and the court pro forma sustained the demurrer, and the plaintiff excepted.</p> <p>Plaintiff claimed that he had apprehended and secured one Brown. The court ruled pro forma, that if any other person besides the plaintiff, in consequence of said offer, assisted in apprehending and securing said Brown, this action could not be sustained, and plaintiff excepted.</p>

Action, trespass. Eor the purposes of this ease the parties agree to the following statement of facts : The plaintiff leased to the defendant a farm in Newington for two years. The defendant continued his occupancy, under an extension of said lease, the further term of six years. At the time of the original letting, the plaintiff had upon the farm a large quantity of manure lying in heaps and in the yards.

This is a bill in equity by Benjamin F. Brown and his wife against John A.. Brown, executor of Lowell Brown, to recover the balance of a fund alleged to have been held in trust by said Lowell Brown for the wife of said Benjamin. The case was heard upon bill, answers and proofs, and the defendant objected to the depositions of the two plaintiffs, upon the ground that the other party was an executor. The other questions were questions of fact which it is unnecessary to state.

Complaint for malicious mischief, brought to this court by appeal from a. justice of the peace. It was alleged in the complaint that the defendant, “ with force and arms wilfully and maliciously did kill seven chickens and five hens of the complainant, by then and there giving said chickens and hens a large quantity of poison, the name of which is to the said Janvrin unknown.” The defendant moved to dismiss the complaint. 1.

Assumpsit on two notes, and for money had and received, and for goods sold. The defendants were A. J. Shorey and N. ,F. Mathes. Shorey was defaulted, and was a witness for plaintiffs. The principal question was, whether Mathes was a partner with Shorey, March 8th and April 12, 1866, when Shorey bought goods of plaintiffs in New York, and gave therefor the notes in suit. Shorey brought the goods to Portsmouth, and put them, in a store, and failed without having paid for them.

Writ op entry. The count claims to recover a tract of land in Dover described by metes and bounds. The plaintiff moves to amend this count so that it shall claim to recover “ a right of way or passage from Chapel street at any and all times with teams,” &c., over and across the said tract of land.

<p>Writ oe Entry. The demanded premises were conveyed by the executors of one Wood to one Chapman, January 17, 1856. Plaintiff claimed that one Handy paid for the land when it was conveyed to Chapman and that by a resulting trust the title rested in Handy. Defendant claimed that the money belonged to the firm of C. Tolman & Co., of which firm Handy was a member, and that the resulting trust was to the firm. Plaintiff being a creditor of Handy, attached the land October 12, 1859, obtaining judgment November 16, 1861, and levied his execution upon the land, April 11, 1862.</p> <p>The Cheshire Bank, being a creditor of C. Tolman & Co., commenced a suit against said firm, Feb. 21, 1857, which was served upon Handy. The officer made return that the other members of the firm “ not being inhabitants of this State nor either of them, I have made no further service of this writ.” The officer’s return of attachment was that he attached, January 23, 1857, all the right, title and interest that Handy had in the premises. April 2, 1858, judgment was rendered against Handy “as a co-defendant with” the other partners, and the execution against him “asa co-defendant” was levied on the premises, September 14, 1858. The appraisers’ certificate on the execution recited that “ having carefully examined a certain tract of land shewn us as the estate of the within named debtor, George Handy,” &c. The officer’s return on the execution stated that he appointed an appraiser for Handy, he having been notified and requested, &c., “ and having neglected and refused to appoint any,” that the appraisers were sworn to appraise such real estate as should be shown them ‘ ‘ as the estate of the said debtor George Handy.”</p> <p>The Bank conveyed to Richardson, April 6, 1863. Richardson conveyed to defendant, March 26, 1864.</p> <p>Plaintiff objected that, in the suit of the Cheshire Bank, the writ being served on Handy alone, the judgment and execution being against him, and the levy being made upon the land shown to the appraisers as the estate of Handv, the defendant could not show by parol evidence that the money paid for the land belonged to C. Tolman. & Co. ; that the bank being a creditor of the firm, and having levied upon the land as the property of Handy, the plaintiff being a creditor of Handy would hold the land as against the bank and the defendant claiming under the bank, although the plaintiff’s levy'was subsequent to the levy of the bank.</p>

<p>Where both parties are citizens of the State of Massachusetts, and the defendant has property in this State, upon which the plaintiff had obtained a lien by attachment, and upon claims admitted to be due and just, the defendant making no defence thereto, and submitting to the jurisdiction of the court here, and subsequently making a general assignment of his estate under the insolvent laws of Massachusetts, (the assignee, also, making no claim upon the property here), this court, under these circumstances, will not permit the subsequent attaching creditors of the defendant to postpone the plaintiffs in their rights acquired by priority of attachment, by allowing them to appear for the purpose of obtaining a delay of plaintiffs’ suit here, until the defendant shall procure his discharge in the insolvent court, so that it may be used in bar of plaintiffs’ action.</p>

Indictment, alleging that the respondent, at Newport, January 14, 1867, “ devising and intending to cheat and defraud one Lucius W. Darling of his goods, moneys, chattels, and property, unlawfully, knowingly aud designedly, did falsely pretend to the said Darling that he, the said- James Call, was owing but a little; that he was owing Shepard Cutting for a pair of oxen and was not owing any other large debt; that the sale of his wood and bark, that he the said Call then…

Assumpsit on promise to the testatrix. The counts relied upon were upon account annexed, ampunting to $695.50, a copy of which makes part of the case, and a count for use and occupation.

Trespass qn. cl. So far as the plaintiffs claimed to own the premises by purchase they claimed by purchases made prior to 1855. The defendant claimed title under a tax sale in March, 1856, to satisfy a non-resident tax assessed in 1855. A portion of the original invoice and list of non-resident taxes for the year 1855, relating to the land in controversy, was as follows : Name. Land. Quantity. 100 acres. James Boutwell. Near Gove's Mill.

Assumpsit, the declaration containing three counts, the two first on a special contract, and being similar, and the third for money had and received, and was not relied on at the trial.

This is an action of trover for taking twenty cords of manure. In October, 1865, the plaintiff’s buildings, excepting a barn containing twenty-five tons of hay, were burned.

This is an action of trover, and is the case reported in 47 N. H. 523. The further facts sufficiently appear in the opinion of the court. cited King v. Hutchins, 26 N. H. 139; Beebe v. Dudley, 30 N. H. 34; General Statutes, chap. 209, sec. 22 j and Rich v. Flanders, 39 N. H. 304. cited Brewster v. Elgerly, 13 N. H. 275 ; Price v. Dearborn, 34 N. H. 481 j Ranlet v. Herron, 20 N. H. 538.

<p>Petition for a new highway in said Landaff.</p> <p>The petition is for the laying out of a highway which was discontinued by judgment of the court, at the March Term, 1866. The hearing before the county commissioners, who reported in favor of said discontinuance, was had in the month of September, 1865, and the present petition is dated the 15th day of January, 1868.</p> <p>At this term the petitioners move that the petition be referred to the county commissioners. The town of Landaff objects to such reference, and offer in support of said objection, affidavits of John C. Atwood,</p> <p>Horace N. Foster, and Amasa Soule, tending to show that, since said discontinuance, no changes have occurred increasing the demand or occasion for said highway, but that, on the contrary, a change of circumstances has since occurred materially diminishing whatever demand or occasion may have existed for said highway at the time of said discontinuance, and setting forth the nature and effect of such alleged changes, which affidavits were taken ex parte, and may be referred to at the .hearing by either party.</p> <p>The petitioners object to the consideration of said affidavits ; and in case it shall be held by the court that they may be received, the right is reserved to the petitioners to offer evidence to rebut, and to the town, to sustain them, but such new evidence is to be taken with notice.</p> <p>As our authority, which we regard as conclusive in our favor, we ask the attention of the court to Howard’s Petition, 28 N. H. 157, 159, 160. Evidence was taken, in that case, upon the question "whether there had been any change of circumstances since the acceptance of the report discontinuing the roadbut the court held that, after the lapse of two years, there was.a presumption that "a new cause had arisen,” and they ordered that the whole matter he submitted to the commissioners for their decision.</p> <p>We would also call the attention of the court to Haywood v. Bath, 38 N. H. .179, 183, 184, 185, 186.</p> <p>There have been no repeated applications for the laying out of the road in controversy, from which any attempt to vex the town of LandafF can be inferred.</p> <p>On the question of discontinuing the old road the commissioners were not unanimous.</p> <p>Howard's Petition, 28 N. H. 157, was upon a different state of facts from those appearing here. There was, in that case, no offer of testimony showing a change of circumstances which diminished the occasion for the proposed road. Here testimony showing such a change was offered, and no presumption of a case that should go to the commissioners, a* in Howard's Petition, can arise.</p> <p>Having been- so recently tried and determined upon its merits, it comes within the principle suggestedin Bath's Petition, 22 N. H. 576 ; Strafford’s Petition, 14 N. H. 30; and should be dismissed by the court in the exercise of a legal discretion, as res adjudícala; vide, also, Greathead y. Brownley, 7 T. E. 455 ; Schuman v. Weatherhead, 1 East 537.</p>

<p>Where a wife owns an undivided interest in common with her husband, in lands over which a public highway is laid out, she is entitled to receive a written previous notice of the hearing, and to an award of damages in proportion to her interest.</p> <p>Notice to one tenant in common can affect his own share only, and a notice to the husband alone will not bind the wife.</p> <p>The wife may have redress by application to this court, within one year after the said highway shall be opened, and made agreeably to the 10th section of chapter 53 of the Compiled Statutes.</p>

<p>This was an action of slander for words spoken by the said Abigail. There were three counts in the declaration, one charging words spoken in presence and hearing of said Sarah Moore and others, another charging words spoken to said Alice in presence and hearing of others, and the other charging words spoken in presence and hearing of Rebecca M. Crosby and others.</p> <p>When the plaintiff had introduced her evidence and rested her case, defendant moved for a nonsuit on the ground that all the words spoken at the three several times were privileged communications, and not actionable.</p> <p>It appeared that said Sarah Moore was the mother of Alice, who lived near to defendants ; that said Alice had been at work at the defendants’ house; that Mrs. Butler missed a sheet from a drawer in a bureau in the room occupied by said Alice while thus at work for defendants; and that the words complained of were alleged to contain a charge against said Alice of stealing said sheet, and having it made into a skirt for said Alice. It appeared that the words spoken in the presence of Mrs. Sarah Moore were with her alone, and not in the presence or hearing of any other person, and the court held that this was, under the circumstances disclosed, a privileged communication, and not actionable.</p> <p>The second conversation was between Mrs. Butler and said Alice, and no one was present; but it appeared that three of Mrs. Butler’s children were in another room, where they might have overheard their mother’s words. These children of Mrs. Butler were an unmarried son and daughter, some fourteen and eighteen years of age, and a married daughter who resided at the West, who was at that time at home on a visit.</p> <p>The court ruled that these words, though they might have charged the commission of the crime of larceny upon Alice, were not actionable in this case, though the charge may have been maliciously made, if no one but Alice heard them; but that if these words were uttered with malice, and were heard by Mrs. Butler’s said children, the words would be actionable, even though Mrs. Butler did not know at the time that what she said was overheard by any one, or intended that they should be, and left the fact as to whether anybody but Alice heard the words to the jury, to which ruling defendants excepted.</p> <p>The count, charging words spoken in presence and hearing óf Mrs. Crosby alleged that Mrs. Butler there said "she” (meaning the said Alice) "took the sheet,” (meaning &c.) "The skirt” (meaning &c.,) "is my sheet,” (meaning &c.) "I” (meaning &c.) "can account for the loss of my sheet,” (meaning &c.,) "in no other way except Alice” (meaning &c.,) "took it.” "I” (meaning &c.,) "have no doubt she” (meaning said Alice) "took it.”</p> <p>The words testified to by Mrs. Crosby, as spoken in her hearing, were as follows : "Mrs. Butler said that the skirt was made from her sheet; that she had lost a sheet and could account for it in no other way only that Alice took it; she said it was her sheet and Alice took it.”</p> <p>Two other witnesses testified to the same conversation, giving it in substance the same as Mrs. Crosby, except that they stated that Mrs. Butler said she thought the skirt was made from her sheet, and she thought that Alice took it. Defendants objected that the words proved under this count were not the same wox’ds either in fact or in substance as those alleged in the count, and that the evidence did not sustain the declaration in this respect. But the court ruled that the words proved were sufficient to sustain the count in either form as stated by the witnesses, to which defendants excepted. One of the above witnesses stated that Mrs. Butler said she thought, &c., in l’eply to a remark by Mrs. Cx-osby that "it was hard to accuse one of stealing unless you are sure.” This conversation was in presence of Mrs. Sarah Moore and Mr. Butler, (defendant,) and Mrs. Crosby, who was bhownto be a sister-in-law of Mrs. Moore, and an aunt of Alice, and known as such to the defendants, who went to Mrs. Butler with Mrs. Moore on this occasion and took part in the conversation, and tx*ied to convince Mrs. Butler that Alice did not take her sheet. Defendants asked the court to rule that under these circumstances the ’ statement made by Mrs. Butler was a privileged communication, but the court ruled otherwise, and defendants excepted. The court charged the jury that if the words were uttered in the presence of Mrs. Crosby as charged, the law would ordinarily presume malice, but that this presumption might be rebutted, and that they were to judge,-under all the circumstances in this case, whether the words were maliciously spoken or not, to which ruling defendants excepted.</p> <p>At the conversation between Mrs. Butler and Mrs. Moore, which the court held to be a privileged communication, after Mrs. Butler had stated that she had lost a sheet and the circumstances, and that she suspected that Alice had taken it and had a skirt made from it, Mrs. Moore explained to Mrs. Butler that the new skirt Alice had was made by herself, (Mrs. Moore,) from one of her own sheets which was made from the same web of cloth with two other sheets which Mrs. Moore then had, one of which she then showed to Mrs. Butler; and the court instructed the jury that though what Mrs. Butler said at this time, under the circumstances disclosed w-as privileged and not actionable, and. was not to be considered by the jury at all as a ground for any damage, yet that they might consider the circumstance of her receiving said information from Mrs. Moore, at that time, and the credit -which Mrs. Butler gave to it, and the credit which she ought to have given to it, under all the circumstances, in judging of the existence of malice on the part of Mrs. Butler in making the statement she did in the presence of Mrs. Crosby, to which defendants excepted.</p> <p>The court also instructed the jury that they might consider the conversation between Mrs. Butler and Alice,'(even though no one else heard it but themselves, and though the words for that reason were not actionable,) and the spirit and temper and motive, that induced Mrs. Butler to charge her w’ith taking her sheet, and all the circumstances under which the charge was made, as tending to show whether she was actuated by malice in uttering the words subsequently spoken in hearing of Mrs. Crosby, and defendants excepted.</p> <p>Defendants offered to prove that Mrs. Sarah Moore, the prochein amy in this case, said to Mrs. Butler, after all the alleged slanders, that she was satisfied that Mrs. Butler in what she had said respecting Alice and the sheet, though she was mistaken, had not intended to injure Alice. This was offered as an admission of the party, but was rejected by the court, and defendants excepted.</p> <p>Defendants also offered Mrs. Butler, one of the defendants, as a witness, but was objected to as being the wife of the other defendant, and the court excluded her and defendants excepted.</p> <p>Defendants pleaded the general issue, and filed a brief statement, stating that the words spoken were true, and there was some evidence upon that point. The court charged the jury that, if they should find that the charge was made as alleged, and that it had not been proved to be true, still that the fact of pleading the justification would not necessarily be evidence in aggravation of damages ; that it would depend upon the motive and object of defendants; that if the defence was made bona fide, it should not be considered in aggravation of damages, but if made for the purpose of spreading and perpetuating the original slander, it should be, and that it was a question of fact for them to consider, whether this defence was made fairly and bona fide or maliciously. To which ruling defendants excepted. Verdict for plaintiff, which defendants move to set aside, and the questions of law are reserved.</p> <p>This case as printed is amended by inserting in the sixteenth line from the top of the third page, after the word "sheet,” and before the word "defendant,” the following:</p> <p>"Mrs. Moore carried to Mr. Butler’s on this occasion one of her own sheets, which she claimed was made from the same piece of cloth as the one from which Alice’s skirt was made, in order to show the same to Mrs. Butler, and convince her that the skirt was not made from one of Mrs. Butler’s sheets. After Mrs. Moore and Mrs. Butler had had an inierview in Mrs. Butler’s house, and this sheet of Mrs. Moore’s had been exhibited, they passed out of the house and the evidence tended to show'that Mrs. Moore invited Mrs. Butler to go to the wagon where Mrs. Crosby was, and see her (Mrs. C.;) that Mrs. Butler went towards the wagon and just before she came to the carriage Mrs. Crosby said 'it is hard to accuse onej’ &c., as stated in the case, and was comparing Mrs. Butler’s sheet with the skirt, and that in reply to this Mrs. Butler used the words stated.”</p> <p>assumed the following positions, and quoted the following authorities in their support:</p> <p>1. In answer to defendants’ first exception to the ruling of the judge. Van Deusen v. Sheffield, 13 Gray 304; Dame v. Kenney, 25 N. H. 322; Bromage v. Prosser, 4 B. & C. 321.</p> <p>2. It is sufficient that the substance of the words alleged be proved. Robinson v. Willis, 2 Starkie N. Prius 194; Treat v. Browing, 4 Conn. 403 ; Williams v. Miner, 11 Conn. 464; Whiting v. Smith, 13 Pick. 364; 7 Taunton 205; 8 Johnson 74; Merrill v. Peaslee, 17 N. H. 540 ; Barrett v. Bpofford, 11 N. H. 127; People v. Horton, 13 Wend. 9 ; 4 Bingham 261; Parsons v. Bellows, 289. The declaration is amply sufficient. 2 Greenl. Ev. 333, sec. 414; 1 Chitty’s Plead. 405.</p> <p>3. The words spoken in presence of Mrs. Crosby were not privileged. Coxhead v. Richards, 2 M. G. & S. 569 ; Blaclcham v. Pugh, 2 M. G. & S. 611; Taylor v. Hawicins, 5 Eng. Law & Eq. 253 ; Hooper v. Trescott, 2 Bing. N. C. 457 ; Rinden v. Wortlalce, 11 M. & W. 461: Smith v. Matthews, 1 M. & R. 151.</p> <p>4. The ruling of the court that the jury might consider the conversation between Mrs. Moore and the defendant, and Mrs. Butler and the plaintiff, upon the question of malice, was correct. Rogers v. Clifton, 3 Bos. & Pull. 587 ; 1 Chitty’s Plead. 406 ; Severance v. Hilton, 32 N. H. 289 ; 2 Starkie Ev. 870 ; Syrnonds v. Carter, 32 N. II. 458 ; Bullock v. Oloyer, 4 Vt. 304; Creenleaf v. McColley, 14 N. H. S05 ; 3 Binney 550.</p> <p>The statement of p>vochein amy was properly rejected. Webb v. Smith, Ryan & M. 108; Smith v. Floyd, 1 Pick. 275 ; Brown v. Hull, 16 Yt. 673; Clark v. Gilmanton, 12 N. H. 515 ; Walker v. Ferrin, 4 Yt. 523 ; Miles v. Boyclen, 3 Pick. 219 ; 1 Greenl. Ev. sec. 179; Colby’s Practice, 74 and 288. Also, on other points, Young v. Gilman, 46 N. H. 484; Pallet v. Sargent, 36 N. H. 500.</p> <p>1. That the court erred in declining to rule, as requested by defendants, that the third conversation in presence of Mrs. E. M. Crosby was privileged, &c., and, as bearing upon this question, and the presumption of malice which plaintiff was bound to make out, quoted the following authorities : loogood v. Spryling, 4 Tyrw. 582 ; Taylor v. Hawkins, 16 Adolphus & Ellis 307 ; Child v. Afflack, 9 B. & C. 403 ; Somerville v. Hawkins, 70 C. L. R. 583 ; Harrison v. Bush, 5 Ellis & Black. 344; (85 C. Law;) Coxhead v. Richards, 52 C. L. 569 ; Bromage v. Prosser, 4 B. & C. 10 Com. Law, 321; Pattison v. Jones, 15 C. L. 303 ; Woodward v. Lauder, 25 C. L. 537 ; Cockaye v. Hoogkinson, 24 C. L. 448 ; Fowler & ux. v. Homer, 3 Camp. 299, a case in point; and American cases as follows : Remington v. Congdon, 2 Pick. 310; Thorn v. Blanchard, 5 Johns. 507; Bradley v. Heath, 12 Pick. 163 ; White v. Nichols, 3 How. 266 ; Gassett v. Gilbert, 6 Gray 94; Swan v. Tappan, 10 Cush. 510; Davis v. Hathaway, 3 Johns. 180 ; Shaclcell v. Jackson, 10 Cush, 25. See, also, Farnum v. Poor, 5 B. & Ad. 642, 7 C. L. 220.</p> <p>2. The ruling in regard to the conversations between Mrs. Butler and Alice alone was erroneous. Sheffield v. Van Deusen, 13 Gray 304.</p> <p>3. The testimony of the witnesses who testified to the talk in the presence of Mrs. Crosby was inadmissible to sustain the count founded on that conversation. Smith v. Hollister, 32 Conn. 695 ; Olmstead v. Miller, 1 Wend. 506.</p> <p>4. The statement of the prochein amy, Mrs. Moore, should have been received as the admission of the party. 1 Greenl. Ev. sec. 179 ; 27 Com. Law Rep. 47 ; 7 Term Rep. 663; 17 Mass. 222 ; Tenney v. Evans, 14 N. H. 343; 21 Pick. 243; 1 Pick. 191; 5 N. H. 391.</p>

<p>A mere submission to arbitration will not be a discontinuance of a pending suit, where by express agreement or necessary implication, the cause is to be kept on foot until the arbitration is perfected by an award.</p> <p>Such an agreement will be implied from a stipulation that judgment shall be entered on the report or award.</p> <p>Where under a misapprehension as to the effect of a submission to arbitration, the action is entered “neither party,” it is a proper exercise of discretion to strike olf such entry and let the cause stand for trial.</p> <p>Whether a mere submission to arbitration will operate as a discontinuance of a pending suit, even if there is no agreement to enter judgment on the award, quiere.</p>

<p>Writ dated November, 1864. Assumpsit for $90, money had and received, &c.</p> <p>Under plaintiff’s specification, he claimed that in the fall of the year A. D. 1864, and prior to the date of his writ, he loaned to the defendant, at Whitefield, the sum of $40 00</p> <p>And afterwards, during the same fall, at Montreal, 30 00</p> <p>*--$70 00</p> <p>The trial of the case came on at this term before the jury, and, by consent of the parties, it was withdrawn from the jury for the purpose of obtaining the opinion of the whole court as to the law applicable to the following statement of facts : The parties were both residents in</p> <p>Whitefield in 1864. The evidence tended to show that, in September of that year, plaintiff called on defendant and requested him to go to Montreal in Canada, for the purpose of procuring men, or enlisting men to serve as soldiers in the armies of the United States; that, pursuant to this request, an agreement was made that the defendant, who had friends in Montreal, and had twice before been there to obtain men for a similar'service, should immediately go there and obtain some men for the aforesaid purpose, and if anything should be made out of the enterprise, the parties were to divide in some satisfactory way the proceeds. The plaintiff testified that each party was to pay his own expenses; the defendant contending that plaintiff was to pay him his expenses and the expenses of any bonus to any men he might get. The defendant being short in funds, received towards his expenses of his expedition, at Whitefield, from the plaintiff, $40. Defendant then repairs to Montreal, and engages the services of four or five men. • After the termination of three days, plaintiff arrives at the same place, and the defendant having expended the money before received in his own expenses, and in advances for the support of his own men, then and there applied to plaintiff and received the other sum of $30, which was to be appropriated in pursuance of the original agreement of the parties. The evidence tended to show that all of the aforesaid $70 was expended by the defendant in his expenses and advancements as aforesaid, excepting the sum of six dollars, which defendant ^admitted he had laid out at Montreal in the purchase of two shawls, which were appropriated to his own private use. These six dollars were admitted to be part of the money last advanced by plaintiff to defendant at Montreal. It was in evidence that both parties knew that it was in violation of the law of Canada to enlist men there, or procure men there to be enlisted here into the service of the United States. In consequence of a friendly and timely warning that they were in danger of being seized and punished for violating the law on this subject, the parties were induced to abandon their purpose, and returned home without bringing out any men. Plaintiff now insisted that it was no part of the original agreement that he was to pay defendant’s expenses, but that each was to bear his own private expenses. The defendant denied this position, alleging that plaintiff agreed to pay his expenses at all events, and also to pay him well for his trouble, and would leave it to plaintiff’s discretion to pay him as much more as he thought proper.</p> <p>To show what the law of Canada was, prohibiting the enlistment of men, the defendant, against the objection of plaintiff, was permitted to call Messrs. Nay and Fletcher, attorneys at this bar. Mr. Fletcher testified in substance, that Mr. Woodward of Jefferson, was arrested as a substitute broker, for unlawfully endeavoring to enlist men, &c., in Canada, in 1864, and was committed to the gaol in Sherbrooke for that reason ; that he was admitted to bail in the sum of $1000 or more; that he was applied to by Woodward to aid him as his counsel; that he repaired to Sherbrooke and there consulted with J. J. Sanborn, Esq., who was one of the Queen’s counsel in Canada, and who was of the firm of Sanborn & Brooks ; that said Brooks was also the prosecuting attorney in that district in behalf of government; that he was in the office of Messrs. Sanborn & Brooks, and inquired as to the law applicable to these cases ; that it was shown to him, and was the same embraced in what purported to be embodied in the proclamation of the Queen, dated May 13, 1861, the statute being there fully set out and as having been made and passed in the 59th year of the reign of George III., entitled an "Act to prevent the enlisting, or engagement of his Majesty’s subjects to serve in a foreign service, and the fitting out4or equipping in his Majesty’s dominions, vessels for warlike purposes, without his Majesty’s license ;” that one of the said proclamations embracing the act of Parliament aforesaid, was then and there given to him by Sanborn & Brooks, being the same paper now produced iii court; that he was guided by the law as set forth herein, in the Woodward case ; that he attempted to procure the reduction of the amount of the bail of said Woodward, before Judge Short, of that district, and that he had information also from Judge Short, that the act embraced in said proclamation was the law regulating this class of cases, and that he acted under it before him in reference to the bail of said Woodward, and in his efforts to procure his discharge.</p> <p>Mr. Ray testified that he acted as counsel in the extradition case of Crawford, in 1864-5, and that he had occasion to inquire into the law regulating these cases, in consultation with Messrs. Sanborn & Brooks, at Sherbrooke ; and that the aforesaid statute, as embraced in one of the Queen’s proclamations aforesaid, was designated by Sanborn & Brooks, or one of them, as being the law then in force, prohibiting the enlistment of men there, to serve here; that the attention of Mr. Ray was particularly directed to that part of the law which is marked or surrounded by black lines, viz : ["Or if any person whatever within the United Kingdom of Great Britain and Ireland, or in any part of his Majesty’s dominions elsewhere, or in any country, colony, settlement, island, or place belonging to, or subject to his Majesty, shall hire, retain, engage or procure, or shall attempt or endeavor to hire, retain, engage, or procure any person or persons whatever to enlist, or to enter or engage to enlist, or to serve or to be employed in any such service or employment as aforesaid, as an officer, soldier, sailor or marine, either in land or sea service, for or under, or in aid of any foreign prince, State, potentate, colony, province, or part of any province or people, or for or under, or in aid of any person or persons exercising of assuming to exercise any powers of government as aforesaid, or to go, agree to go, or embark from any port of his Majesty’s dominions for the purpose, or wish to be so enlisted, entered, engaged or employed as aforesaid, whether any enlisting money, pay or reward shall have been, or shall be actually given or received or not:”] "In any or either of such cases, every person so offending shall be deemed guilty of a misdemeanor, and upon being convicted thereof, upon any information or indictment, shall be punished by fine and imprisonment, or either of them, at the discretion of the court before which such offender shall be convicted.” '</p> <p>In this case, the aforesaid paper embracing the aforesaid extract, and the whole statute upon this subject, may be referred to as evidence offered in the case by plaintiff.</p> <p>It was ordered that this case be transferred to the Law Term in this district for the consideration of the whole court.</p>

<p>Trespass for assault and imprisonment. The defendant Flanders, acting as tax collector of Stewartstown, arrested the plaintiff and carried her to Lancaster, for the purpose of committing her to jail for refusing to pay the tax assessed against her in 1864 by the other defendants, who were acting selectmen of Stewartstown.</p> <p>The following is an extract from the invoice book in which the taxes were assessed:</p> <p>Whole amount of reduced value, $1,154 55</p> <p>Amount of State tax, $825 00</p> <p>Amount of county tax, ' 388 89</p> <p>Amount of town tax, 4,000 00</p> <p>Amount of road tax, 150 00</p> <p>Total amount, $5,363 89</p> <p>3 per cent, added, 160 91</p> <p>Total amount to be assessed, $5,524 80</p> <p>Amount of State, county and town,</p> <p>assessed, $5,567 26</p> <p>Amount of school money assessed, 341 68</p> <p>The State, county and town taxes pay $4.80 on the dollar in the reduced value. The school tax pays 30 cents.</p> <p>The tax assessed upon the plaintiff was: State, county and town, $24.00; school, $1.50; total, $25.50.</p> <p>Subject to plaintiff’s exceptions, the defendant Drew testified: "We made the addition of 3 per cent., and we figured it, it might have been, a few cents less than $4.80, and I supposed it would be within 5 per cent, to call it $4.80, and for convenience we called it so, as to the State, county and town taxes. .No per cent, was added to the school tax, I think; and we called it 30 cents on a dollar, thinking that would not make more than the amount we were authorized to assess. I supposed I was all right if we kept within 5 per cent. We called them $4.80 and 30 cents for convenience in making the computations.”</p> <p>The court ruled that if the $4.80 and the 30 cents were within the 5 per cent, limits, the assessment was not rendered invalid by anything in the foregoing extract from the invoice, and that it did not appear, as matter of law, that the assessment of the plaintiff’s tax was illegal; and plaintiff excepted.</p> <p>The plaintiff waived the question of fact, whether the $4.80 and 30 cents were within the 5 per cent, limit.</p> <p>There was evidence tending to show that when the collector' was appointed his compensation was verbally agreed upon. The plaintiff objected that there was nothing in writing relating to the compensation. The court overruled the objection, and plaintiff excepted.</p> <p>When the evidence was closed the court inquired of plaintiff’s counsel what questions of fact they desired to be submitted to the jury, and they stated that there were none. Whereupon the court pro forma ordered a nonsuit, and plaintiff excepted.</p>

Assumpsit. The declaration contains the general counts for goods, wares and merchandise, bargained and sold, sold and delivered, &c., and a count upon an account annexed to the writ charging the defendants, under date of June 7, 1866, with 735 5-8 cords of wood, at $5 per cord, §3,678 13 Cash paid surveyor, 4 00 Cash paid for use of land, 25 00 $3,707 13 —'allowing sundry credits, and leaving a balance claimed to be due the plaintiffs, amounting to $1,833 38.

Trespass quare clausum, for entering upon land of the plaintiffs and carrying away logs. Writ dated April 5, 1867. One M. M. .Hadley, a brother of the defendant, conveyed the land to the plaintiffs by deed delivered Jan. 7, 1867, in pursuance of a verbal agreement made or an understanding had in the autumn of 1866.

<p>Where an individual sues the town or city for damages for the destruction of his property by a mob, under chapter 1519, Laws of 185Í, it is immaterial whether the defendant could or ought to have prevented the destruction of the plaintiff’s property.</p> <p>It is also immaterial whether any or all of the rioters were citizens of the defendant town or city.</p> <p>In such case, the destruction of the plaintiff's property would be caused by his illega or improper conduct within the meaning of the word “caused.” as used in the statute, if without such conduct on his part the destruction would not have occurred.</p> <p>It is immaterial how remote in time the illegal or improper conduct of the plaintiff was, if in fact the destruction of his property was caused by it.</p> <p>The “improper” conduct referred to in this statute, is such conduct as a .man of ordinary and reasonable care and prudence would not, under the. circumstances, have been guilty of. - And the defendant town or city will not be liable if the destruction of the plaintiff's property would not have happened, hut for something said or done by plaintiff which a man of ordinary prudence, under the circumstances, would not have said or done.</p>

Writ, September 14, 1867. This action was, by consent of parties, tried by the court. It was assumpsit for §400, money had and received, &c. The plea was the general issue. The plaintiff’s specification upon his general count was the following receipt, which was offered and received as evidence in the case: Exeter, June 26, 1866. Received of Nathaniel Swazey three hundred dollars on account of stock in the Choate Manufacturing Company, to be issued to him.

Assumpsit for services of plaintiff’s wife in cooking food for persons sick with the yellow fever, and for water taken from plaintiff’s well, in July, 1864. Writ dated Sept. 16, 1865. The United States steamer De Soto, infected with the yellow fever, arrived at the Navy Yard, in Kittery, Maine, opposite Portsmouth.

Petition for a uew highway in Farmington. The petition was to this court, and set forth, among other things, that whereas, the selectmen of Farmington have been petitioned to lay out said highway and have refused to do so, therefore we respectfully request,” &c. The petition was entered September Term, 1867, and continued for notice.

Case, brought under chap. 1519, Laws of 1854, to recover damages for property destroyed by a mob. The first two sections of the statute are as follows: Section 1.

The will of Eeuben Hayes, dated February 11, 1864, and proved in the same year, contained the following provision : I order and direct my executors, as soon as is convenient after my decease, to convert my land at the West, bank'stock in Lake Bank and in Eochester Bank, and money due on notes, into cash, and fund the same where in their opinion it shall be safe; and divide the interest from time to time arising from said fund among my children, grandchildren, and my wife,…

Writ of entry, entered October Term, 1865. April Term, 1867, the defendant’s death was suggested on the docket, and scire facias issued against the administratrix of his estate, which was duly served and returned, and now at this term the administratrix comes in and objects that she is not bound in law to undertake the defence of this action. The questions arising on the case were reserved.

Trover for the value of a horse alleged to have been wrongfully taken and converted by defendant. Plaintiff put in evidence a chattel mortgage of said horse from one Charles L. Johnson to said Thomas Johnson, executed in due form and dated Oct. 15, 1866, and recorded in Richmond the day following, and that defendant took and sold said horse on the 12th day of January, 1867.

Writ of entry for land in Lebanon. Plea, the general issue. The plaintiffs claimed title under levies of three executions issued on judgments recovered by them in this court against Daniel S. Hough, at the September Term, 1863 ; one for $417.27, debt, and $15.43, costs ; one for $413.38, debt, and $15.43, costs; and the third for $236.74, debt, and $15.43, costs ; all levied March 12, 1864.

<p>An infant may recover for what he has paid or done while an infant in execution of his voidable contract by restoring what he received under the contract, if it remain in specie; or, if not, by accounting for the value of it.</p> <p>Where an infant received money under his contract, and afterwards while an infant paid money in execution of the contract, in an action to recover back money paid under the contract, it is not necessary that the infant should first repay the money he received under the contract, but he must account for so much towards the sum which he paid in execution of the contract.</p> <p>Where the consideration of an infant’s contract consisted partly of money paid for him, and partly of an undertaking by the defendant involving uncertain risks, if the infant seeks to recover back money paid in execution of the contract, it must be left to a jury to determine what, under all the circumstances, it was reasonable the infant should engage to buy, and that sum should be allowed to the defendant against the money paid in execution of the contract, and the balance, if any, recovered by the plaintiff.</p>

Assumpsit upon the following promissory note : Boston, December 28, 1864. $3000. .For value received I promise to pay John Clough, or order, the sum of three thousand dollars within five years from the date hereof, with interest semi-annually, payable in twenty equal quarterly payments on the tenth day of January, April, July and October in each year, the first pavment to be made on the tenth day óf April next. r'm n GEORGE B. HARRIMAN. |_STAMP.J STEPHEN C. BAKER, Surety.”…

Case for slander. The writ was dated Sept. 8th, 1866. The declaration, excepting the fourth and seventh counts, which were stricken out by amendment, is made a part of the case. The defendant pleaded the general issue, with a justification alleging the truth of the words. The jury rendered a verdict for the plaintiff.

Assumpsit for money had and money paid. Writ dated June 13, 1866. The plaintiffs introduced a subscription book, the terms of which were as follows : We, the undersigned, promise to take the number of shares set against our respec:ive names, and to pay to James E. Henry and Charles C. Moulton the sum of one hundred dollars, (§100) for each and every share so subscribed.

<p>Assumpsit to recover a bounty of three hundred dollars. The facts sufficiently appear in the opinion of the court.</p>

Assumpsit, for not accepting three young cattle and a cow, which the defendant bought of the plaintiff. Plaintiff and defendant agreed that defendant should buy of plaintiff three young cattle and a cow for $160, and defendant paid plaintiff $15 to bind the bargain and in part payment. The plaintiff was to deliver the cattle at another time and place. The three young cattle were selected and agreed upon, and there was no controversy as to them.

The defendant pleaded in abatement that the copy of the writ delivered to him by the officer who served said writ is not a true copy in this, that the same does not set forth the endorsement on the back- of said writ; and without this that, no service of the plaintiff’s said writ has been made. The service aforesaid was made in Massachusetts. To this plea there was a demurrer and joinder.

This action was entered at April Term, 1867. July 7th, 1868, the trustee having been duly summoned by plaintiff, and having received his lawful fees, appeared before a magistrate to give his deposition.

<p>Under the act of August, 19, 1864, chapter 4032, section 7, cities and towns are not authorized to pay more than three hundred dollars bounty to any person who had already enlisted into the military, naval or marine service of the United States.</p> <p>And a vote of a town to pay a larger sum would not justify the selectmen in paying it.</p>

Assumpsit, for not delivering potatoes in 1864, which defendant agreed to sell to plaintiffs. James A. Pitkin, Lovering and others were partners engaged in the manufacture of starch at Colebrook until James A. Pitkin died, in the summer of 1863. After his death the business was carried on by his executors and the surviving partners.

Cash to recover for injuries alleged to have been sustained by Emma Taylor, in Sept. 1866, while travelling on defendants’ road. In the writ, dated Oct. 3d, 1866, plaintiff was described as a minor suing by A. TV. Pope, her next friend. At April Term, 1867, the death of plaintiff was suggested, and John Bailey, 2d, her administrator, was admitted to prosecute the action. I. Plaintiff offered the deposition of Elizabeth A. Pope, taken after the death of Emma Taylor.

<p>Bill in Equity. David Currier and sundry other citizens of the State against the Concord Railroad and the Manchester & Lawrence Railroad and the directors of each of said corporations, and the superintendent and other officers of the Concord Railroad.</p> <p>The bill states when the roads were chartered, and that by means of the connecting roads below they form portions of rival and competing routes by different lines, for all through business between Manchester and Boston, and by northern connecting lines between the central portions of New Hampshire and Vermont and Boston; that the capital of the Concord Railroad is $1,500,000, and of the Manchester and Lawrence Railroad, $1,000,000 :</p> <p>That the Concord Road was chartered for the transaction of business over its own specific route, with authority to receive tolls to a given rate per cent, on the cost of the road, with a provision that at a given time the State might take such road at its cost, provided such percentage had been received, or by making up this percentage; that any connection with the Manchester & Lawrence Road by which its liabilities and responsibilities are increased, or its income changed and altered, is a violation of the charter of the Concord Road ; that the Manchester & Lawrence Road w'as also limited by its charter to the business of its own line of route and earnings, and subject to a like provision of purchase by the State :</p> <p>That on December 27th, 1860, the two roads, against the provisions of their charters and other express provisions of law, made a contract commencing Dec. 1, 1861, and to continue twenty years, by which the two roads were consolidated and made equal sharers in the joint earnings of both roads in proportion to their capital stock, and the sole control and management of the Manchester & Lawrence Road placed in the hands of the Concord Road; and afterwards on January 1, 1865, a contract was made between the Concord Road, and the Nashua & Lowell, and Boston & Lowell Railroads, to commence February 1, 1865, and continue thirteen years by which the through business from Manchester and above was to be transacted so far as might be consistently, by way of the Nashua & Lowell line of route to Boston, and what did not go that vray should be credited to the Nashua & Lowell and Boston & Lowell Roads and accounted for as their business ; and the Concord Road to receive nothing for the same over the Manchester & Lawrence Road except the actual cost of transporting the same, reckoned at one and one-fourth cents per mile per ton for freight and three-fourths of a cent per mile for passengers ,• and in consideration the lower roads agreed to deduct for the hauling of all through passenger and freight business of the Concord Road over these lower roads one-third the taxable mileage distance, or a discount of thirty-three and one-third per cent on such haulage:</p> <p>That after this contract and with full knowledge of it, the Concord Road and the Manchester & Lawrence Road extended their said contract thirty years or to Dec. 1, 1911 :</p> <p>That under these contracts and in conformity with the intent and design thereof, the through business between Manchester and Boston, and Concord and Boston, and between the upper roads and Boston, has been excluded from the Manchester & Lawrence Railroad to the greatly increased expense of the upper roads, and the same facilities ha've been refused to passenger travel over that line as have been enjoyed over the Lowell line.</p> <p>The bill then recites the substantial parts of the act of July 5, 1867, entitled an act to prevent railroad monopolies, and then alleges that the Concord and the Manchester & Lawrencé Roads are rival and competing roads, or portions of rival and competing lines of road as specified in said act, and that the aforesaid contracts between said roads have not been rescinded, annulled or discharged by the parties thereto, and that said roads since said act took effect have been run, and are now being run and operated by the defendants, their officers and agents, with an intent, design and common understanding between them to secure to them the results, or similar results to those specified in the contracts aforesaid, and so that the earnings shall be kept in the same relative position to each other as heretofore, and as shall prevent their operation as rival and competing lines or portions thereof, under fair and open competition, and with the purpose and intent thereby, to evade the provisions and avoid the operation of said act.</p> <p>And said roads contend that they have a legal right to equalize the earnings of the roads to prevent competition ; and under pretence of complying with said act they have entered into an arrangement whereby the same persons, heretofore acting as officers and agents of said roads and running the same jointly for the common purposes thereof and who are mainly dependent for their compensation on the Concord Road, that is, James R. Kendrick, Stevens, Sanborn and Webster, named in the bill, have been elected to, and hold the same offices in both roads, and said roads are not run separately by their own officers agreeably to the intent and meaning of said act, but said contract as arranged was devised with the express intent that the roads should be run in all essential respects and particulars as heretofore, so as to secure the results stipulated in the contracts, and to evade compliance with said act:</p> <p>Tliat said roads have a common interest and liability in proportion to their capital stock, in the rolling stock, repairs and contingencies of either road and in the materials consumed in running the same and have expended large sums of money from the joint earnings in the erection of depots,- buildings and fences on either line, which is in violation of the provision that said roads shall be run separately, as rival and competing roads, each dependent on its own earnings for support and in fair and open competition :</p> <p>That defendants have entered into various other engagements and arrangements to evade said act, and it is agreed or understood by them that the contracts aforesaid between them shall be suspended or not enforced for the present, and that any loss ai-ising from such suspension shall be made up to the Manchester & Lawrence Road, or either road jirejudiced thereby, by allowing in the settlement of other matters, running arrangements, or joint interest in property of such roads, such sum, beyond the amount due thereon as shall make up any such loss ; or by underrating the expenses of the Manchester & Lawrence Road, or by loan of money on account of, or on the security of, said road, or by advance of such sums of money from time to time to the Manchester & Lawrence Road as shall make up any deficiencies in the net earnings of that road, so as to equal the net earnings of the Concord Road in proportion to its capital, and as shall constitute, as near as may be, the entire fulfillment of the contracts aforesaid to the Manchester & Lawrence Road; and such payments have been made in compliance with said understanding :</p> <p>That with the exception of allowing the directors of the Manchester & Lawrence Road to run and operate its road through the agency of persons holding the same positions in the Concord Road as aforesaid, all other matters and joint operations between the two roads have been and are continued in force as heretofore, and no attempt has been made since the passage of said act, to dissolve such connection or terminate such common operation and partnership or adjust and settle any accounts arising therefrom, but the said roads avow their intent to continue such running arrangements, until such time as said contracts shall be finally adjudged as illegal; but the said corporations have taken no measures to obtain such adjudication, and do not intend to do so, but on the contrary well knowing the said contracts to be illegal and. contrary to the provisions of said act continue to maintain the same, with the design thereby to violate and evade the act aforesaid; and that it is understood and agreed that when any disabilities from such act shall be removed, the former contracts or like contracts shall be renewed, or compensation made therefor, and that common efforts and expenditures shall be put forth to maintain said contracts, and do away with anything conflicting therewith.</p> <p>The bill further alleges that the said roads have not been run as rival and competing roads, and that the Manchester & Lawrence Road has not been kept open to the public for the free choice and benefit of transportation by that route, but has practically been shut up .against all through freight over its road between Boston and Manchester and the central and northern portions of the State and Boston ; that equal advantages have not been given to portions of passenger travel on that route as upon the Lowell route, and that means have been used to turn the travel and transportation over the Lowell route with the assent of said boards of directors ; all which acts and doings of the defendants are in violation of the charters of said roads, the act of July 5, 1867, the laws of the State, the rights of the public, and of these complainants, as citizens of this State.</p> <p>The bill prays a discovery, and that the defendants may be restrained by injunction from operating said roads in any way or manner contrary to the provisions of said act, and from enforcing the said several contracts or payments, compensations or advances under them, or on their account, and from making the settlements or adjustments aforesaid and from paying any portion of the earnings of either road to the other, or sharing in the common earnings or supplies or means of operation of the roads, and from running said roads in anyway or manner other than as rival or competing lines of route, independent and separate from the control of officers having charge of such other road, and under fair and open competition, and from all other violations of the acts and laws aforesaid, and for such other relief as may be just.</p> <p>To this bill there was a demurrer and several causes assigned which sufficiently appear in the opinion of the court.</p> <p>The cause was argued by Minot, for defendants, and by Eastman and Foster <£ Sanborn, for plaintiffs.</p>

<p>The fact that a town had paid a uniform bounty t-o sundry persons who had enlisted in the field into the military service of the United States, and were counted on the town quota, is evidence on which a jury might infer a promise by the town to pay the same sum to another person enlisting at the same time and under the same circumstances.</p> <p>Where the vote of a town authorized its selectmen to take measures to fill the town quota of thirty men and to pay bounties for that purpose, the authority of the selectmen is exhausted when such quota is filled, and their contract for further enlistments will not bind the town.</p>

This is a bill in equity in which the plaintiff seeks an injunction to restrain the removing, by defendant, of a pair of bars opening into the lane of the plaintiff, thereby exposing his fields and causing his cattle to escape, and asking for damages for injuries already caused in that way, and for general relief.

Assumpsit to recover for ten cases of locks. Plea, the general issue.

<p>Indictment for poisoning the horse of Reuben Kimball.</p> <p>Subject to respondent’s exception, Reuben Kimball was allowed to testify that the respondent, while in jail for another offence, confessed to him that he poisoned the horse, and that he was hired to do so by Mrs. Winegar. Kimball testified that he held out no inducement to Squires of any description.</p> <p>Subsequently the respondent called C. W. Stanley, Esq., who testified that while acting as counsel for Kimball, he had an interview with respondent in jail before the above confession to Kimball. Mr. Stanley testified : " I told respondent I wanted him to tell the truth, and nothing but the truth; that I did not want him to add perjury to any other crime that he had been guilty of; that under no circumstances should any statement wdiich he might make to me be used against him ; that I "could not promise him he should receive any benefit from it, but I could distinctly assure him that he should not receive any injury therefrom. I suggested to him that if he ever testified in the case, we should have to get him pardoned for the offence for which he was then confined, but again told him I should make him no promises. I told him that if under these circumstances he was willing to tell me the truth about it, I wished he would do so, and I would take it down. I think I stated that I came down at Kimball’s request.”</p> <p>Respondent’s counsel then asked Mr. Stanley to state certain portions of the confession then made by the respondent, but upon the suggestion of the counsel for the State, respondent’s counsel asked Mr. Stanley to state the whole confession, and he did so. It was very similar to that afterwards made to Kimball.</p> <p>Mr. Stanley further testified : " I had no authority from the prosecuting officers to hold out any inducement. I told Squires at the time he made the statement, that we supposed he was not the really guilty party; that we thought there was somebody behind Mm, and that we wished to get at the real facts so that the really guilty party could be punished.”</p> <p>The length of time between the two confessions did not distinctly appear.</p> <p>The respondent called the jailor, who testified that there was " a general talk” among the prisoners in respondent’s hearing, " that they would send respondent to State Prison, anywhere from one to twenty years that it was sometimes said he would be sent for perjury; sometimes for poisoning.</p> <p>The witness further testified: " I think it was understood that he had made statements to Air. Stanley. He was hazed after that; hazing talk was after the confession mostly; it was all the way through.”</p> <p>After the introduction of the above testimony, the respondent moved that Kimball’s testimony as to the confession should be rejected. The motion was denied, subject to exception.</p> <p>Respondent having been convicted, moved to set aside the verdict by reason of the foregoing exceptions.</p> <p>Ordered that the questions arising on the foregoing cáse, be reserved and assigned to the determination of the court at the next law term.</p> <p>Ordered that the transfer be rescinded, and that the following addition be made to the statement of facts in the ease drawn, viz: " The court were willing to transfer the questions of law, but respondent consented that the court should render judgment and sign a bill of exceptions.”</p> <p>Confessions or disclosures, whether made before apprehension or after, if made under any threat, direct or implied promise, however slight, or encouragement of any hope of favor, or the exertion of any improper influence, are inadmissible in a criminal prosecution. II Vermont 116; 1 Greenleaf on Ev. § 219 ; 2 Russ, on Crimes 826; Whar. Crim. Law 313 ; 1 Alass. 144; 15 Alass. 161; 9 Pick. 496; 22 A'laine 171 ; 2 Tyler 377; 15 Wend. 226; do. 231; 17 N- H. 182; 37 N. H. 182.</p> <p>The statements made to the respondent by C. W. Stanley, Esq., to extort a confession, were snfficient encouragements of hope of favor, to render the confession inadmissible. The assurance that 4 4 he should not receive any injury therefrom,” was an encouragement, from which the prisoner might well imply that the confession desired would prove a benefit to him, although not directly promised. The statement that ■“ they should have to get him pardoned for the offence for which he was then confined” could not have been considered in any other light by the respondent, than as an implied promise that he should be pardoned, and was an improper influence to extort a confession.</p> <p>Air. Stanley was possessed of sufficient authority, as attorney for Reuben Kimball, that his inducements will exclude any confession obtained thereby. 1 Greenleaf onEv. see. 222 ; 2 Russ, on Crimes 839 ; 1 Phil. Ev. 407 ; 37 N. H. 182.</p> <p>Kimball’s testimony as to the confession was not admissible. The confession to Air. Stanley having been obtained by undue means, subsequent statements under the influence of that confession cannot be admitted as evidence. 1 Greenleaf on Ev. sec. 221; 2 Russ, on Crimes 838 ; 17 N. H. 183; 10 Pick. 490; 37 N. H. 183.</p> <p>It does not appear that the inducement had ceased to operate at the time of this confession. This inducement must be shown to have been totally done away with or the subsequent confession must be rejected. 1 Greenl. onEv. sec. 221.</p> <p>Stanley was acting in behalf of his client, Kimball, and not for the State. He told Squires that he came to him at Kimball’s request. The interview had reference to a civil suit against Mrs. Winegar. There was no reference to any criminal proceedings, and he had no authority to act for the State.</p> <p>I. The confession to Stanley was voluntary, and not obtained by the influence of hope or fear, and therefore competent evidence. 1 Greenl. Ev. § 219; State v. Wentworth, 37 N. H. 196 j State v. Grant, 22 Maine 171 •, Oom. v. Morey, 1 Gray 461.</p> <p>It is not necessary that it should have been the prisoner’s own spontaneous act. It will be received though it were induced by a promise of some collateral benefit or boon, no hope or favor being held out in respect to the criminal charge against him. 1 Greenl. Ev. 229, State v. ~Wentworth, supra.</p> <p>It is not a sufficient exception to the evidence of a confession, that the respondent was urged to state where he was at a particular time, and to state it quick; there being no promises of favor, and no circumstances of intimidation. State v. Howard, 17 N. H. 171.</p> <p>Whether a confession, made after the magistrate who issued the warrant had said to the prisoner that he “ had better tell the truth,” is admissible in evidence, quaere. State v. Howard, supra.</p> <p>In the above case, Parker, C. J., says, that while there is very respectable authority to support such a rule, “we are by no means satisfied that judges, in their anxiety to preserve all the rights of the accused, have not gone further in excluding confessions than the principle required them to do.”</p> <p>Evidence of confessions obtained by the hope of favor, or by the fear of punishment, is inadmissible, because the inducements may have led to a false statement. State v. Howard, supra.</p> <p>Stanley held out every inducement for the respondent to tell the truth and nothing but the truth.</p> <p>II. A confession made to a person who has no authority, upon an inducement held out by that person, is receivable. Joy on Confessions, sec. 2, p. 23; Koscoe’s Cr. Ev. 46.</p> <p>According to Professor Greenleaf, this is a question upon which learned judges are known to entertain opposite opinions. 1 Greenl. Ev. sec. 223.</p> <p>The question has not been settled in this State, and probably does not arise in this case.</p> <p>III. Kimball held out to the respondent no inducements whatever. The confession to Stanley being admissible, that to Iiimball is of course competent evidence.</p>

<p>Replevin for wood. The issue tried was whether the wood was the property of the plaintiffs. The jury returned a verdict for the plaintiffs, but assessed no damages for the caption or detention. The defendant moved for a new trial; and the questions of law arising upon that motion were reserved. After verdict, the plaintiffs remitted, on the record, all claim to damages. At the next term after verdict, the plaintiffs moved to amend the verdict by inserting one cent damages, and to remit the same.</p> <p>The verdict, is defective. This point is expressly decided in Kendall v. Fitts, 22 N. H. 1, 9. The court say: "No judgment can, by law, be rendered upon the verdict in the form in which it is returned.” The remitting of damages will not help the plaintiffs. In cases where the damages are excessive, the remission of damages will answer, but in this case there is no legal verdict and so a legal one cannot be made It is too late for the plaintiffs. In this State the assessment of damages is necessary. There can be no judgment for the plaintiffs without damages assessed. In assumpsit on a note, a verdict that the defendant did promise &c., without an assessment of damages, would be defective, and a judgment rendered thereon would be reversed on error.</p> <p>I. A verdict may be amended in matter of form, at anytime before final judgment. G'anev. Watson, 1 Morris 52 (Iowa.) When the verdict is irregular in form the court may put it in form, without the consent of the jury, provided the meaning be not changed, even after the jury have separated. Gordon v. Higley, 1 Morris 13 (Iowa.) In Vermont the court have power to correct any informality in a verdict after the jury are discharged. Foster v. Galdwell, 18 Vt. 176. Every proper intendment is to be made to sustain a verdict. Flleins v. FarJchurst, 17 Vt. 105 ; Huntington v. Ripley, 1 Root 321. If-the amendment is merely formal it may be made. Little v. Larrabee, 2 Greenleaf, 37 and cases cited; 1 Salk. 47, 53 ; Cro. Car. 144, 338 ; Cro. Eliz. 677, 112 ; Cro. Jac. 239 ; Lord Raym. 335 ; 2 Str. 1197 ; 4 Co. 52 ; 3 Bulstr. 181 ; Hutt. 52 ; Hobert v. Hagget, 12 Maine 67.</p> <p>In replevin, where the jury find for plaintiff generally, and assess no damages, the court will so amend the verdict and judgment as to assess nominal damages. Goit v. Waples, 1 Min. 134. In Beekman v. Remus, 7 Cowen 29, the action was replevin, and the jury neglected to assess damages, but found for plaintiff. The court permitted the verdict to be amended by inserting nominal damages. If the verdict is good in substance the court may amend any defect in form. Diehl v. Evans, 1 Serg. & Rawle, 367.</p> <p>II. The release of damages by the plaintiff cures the defect in the form of the verdict. Rentham’s Gase, 11 Coke 56.</p> <p>III. In a case like this, omission to assess damages operates beneficially to the defendant, and is therefore no error. A judgment will not be disturbed for a substantial defect in a verdict, where the record shows that such defect cannot by any possibility operate to the prejudice of plaintiff in error. Harvell v. Stringfield, 1 Morris 18 (Iowa.)</p> <p>When the counsel for defendant argued this case, the Chief Justice propounded the question, " whether a judgment rendered on this verdict would be error”, and counsel contended it would be error.</p> <p>The plaintiffs contend, that where, as in this case, the omission operates beneficially to the defendant, error will not lie. The omission to assess damages is in favor of defendant. Holman v. Kingsbury, 4 N. H. 106; Allen v. Aldrich, 29 N. H. 63; Luey v. Bundy, 9 N. PI. 298 ; Sanborn v. Emerson, 12 N. H. 58 ; Taylor v. Jones, 42 N. PI. 25 ; Whittier v. Varney, 10 N. H. 291; Litchfield v. Londonderry, 39 N. II. 247 ; Sterret v. Greed, 2 Ham. 343 ; Traime v. McKettrick, 4 Bibb 180; Hughes v. Stickney, 13 Wend. 280; Henry v. Smoot, Minot 18; Gooey v. State, 4 Port 186; Hammitt v. Bullett, 1 Call 567 ; Overley v. Paine, 3 J. J. Marsh 717 ; Unangst v. Kraemer, 8 Watt & Serg. 391; 5 Watt & Serg. 188 ; Ross v. Heal, 7 Monr. 407 ; Union Ranh v. Planters’ Rank, 9 Gill & Johns.; Burt v. Dodge, 13 Ohio 131; Clark v. Fox, 9 Dana, 193, 196 — 27, 3, 59.</p> <p>Judgment may be reversed as to damages and affirmed as to costs. Gummings v. Pruden, 11 Mass. 206; Wells v. Fowler, Kirby 236; Dixon v. Pierce, 1 Root 138.</p> <p>In. Kendall v. Fitts, 22 N. H. 1, the plaintiff made no release of the damages, and made no motion to the court to amend the verdict by inserting nominal damages.</p> <p>The plaintiff’s in this c„ase move the court to amend the verdict by inserting one cent damages and those damages are remitted on the record.</p>

<p>A private person may arrest a felon who, after conviction upon his plea of guilty, has, without actual breaking or force, escaped from the House of Reformation to which he was sentenced.</p>

<p>Foreign Attachment. The trustee disclosed the following facts : April 11th, 1866, the trustee held four notes against the firm of Page & Martin, amounting without interest to $3,946.32 ; and on that day Page & Martin, who were retail grocers in Manchester, mortgaged their stock of goods to the trustee to secure these notes. At the same time Page & Martin executed a second mortgage to the trustee to secure a note for $2,000, dated August 28, 1862, signed by W. P. Downing and the firm name of “ Page & Martin.” The statements in the disclosure tended to show that the firm signature was in the handwriting of Martin, that it was signed on or about the date of the note, before the money was advanced, that the trustee was not present when the firm signature was affixed, and that he had no conversation with Page about it before April 11th, 1865. It appeared that W. P. Downing had the money advanced on this note, and that it was known to the trustee that Page & Martin, if liable at all, would only be liable as sureties.</p> <p>April 12th, 1865, the trustee took possession under his mortgages. April 19th, 1865, the mortgaged goods were taken from the trustee by I. W. Farmer, a deputy sheriff, who attached them on various writs against Page & Martin ; and the goods were subsequently sold at auction by Farmer for about $4600. April 25th, 1865, the present writ was served on the trustee. Soon after the trustee brought an action of trover against Farmer for the conversion of the mortgaged property. This suit was defended by the attaching creditors.</p> <p>At the September term, 1866, of the Supreme Court for Hillsborough county the trover suit was disposed of by the rendition of judgment by agreement for plaintiff lor $2100; and the balance of the $4600. in the sheriff’s hands was mainly applied, in satisfying the judgments of the attaching creditors. The trustee said in his disclosure : e ‘ I suppose the parties understood when I took the judgment for the $2100 that I should have no further claim upon the goods.”</p> <p>The trustee admitted the receipt of upwards of nine hundred dollars from collections of debts due'to Page & Martin and from the proceeds of mortgaged goods sold after the execution of the mortgages and before the attachment.</p> <p>Plaintiffs claimed that the trustee should be charged for these receipts, and that under the circumstances, he could not be allowed to set off either the unpaid balance on the four notes secured by the first mortgage, or the unpaid balance on the note of August 28th, 1862.</p> <p>The questions of law arising upon the trustee’s disclosure were reserved.</p>

<p>Whatever will pass by words in a grant will be excepted by like words in an exception.</p> <p>A reservation as well as a grant may be made upon condition.</p> <p>When a grant or reservation is made upon conditions subsequent, the conditions are not favored in law, and are to be strictly construed.</p> <p>In order to bind the heirs or assigns to the performance of such conditions subsequent, they must be expressly mentioned in the condition.</p>

<p>Under the provisions of our statute that “ costs shall follow the event of every action,” &c., a defendant is entitled to costs upon an arrest of judgment.</p> <p>But when judgment is arrested for a defect in the declaration, apparent upon the record, and one for which a plea in abatement or a demurrer would have been sustained, that fact may afford a reason why the court in its discretion should disallow or limit such costs on arrest of judgment.</p>

This case was referred to an auditor, who made his report; which report, with the assignment annexed thereto marked A, is made a part of this case. The questions of law arising on said report were reserved. Auditor’s Report. * * * * By agreement of parties, the auditor reports to the court the following statement of facts : The action is assumpsit upon an account annexed to the writ. Writ dated January 15, 1867.

<p>A bequest to the Church or Congregational Society in Greenland may be construed as a gift to the Congregational Society in Greenland, it being shown that there was a legal corporate body of that name, having charge of the support of the religious worship of the church and society of the Congregational order, at that place, for many years, and there being no corporation or association bearing the name given in the bequest.</p> <p>Such a bequest is therefore not void for uncertainty. When the bill alleges assets in the hands of the administrator, and this is not denied by the answer, assets will be presumed.</p> <p>After the hearing upon] the bill, answer and proofs, an amendment may be made of the name of the complainants to conform to the proofs.</p>

Indictment for larceny from the person. Thirty jurors were present from whom twelve were drawn to try this case. One was challenged by the State and one by the defendant, no cause being assigned in either case, and none were excused or set aside for cause. The defendant excepted to the ruling of the court allowing the State to challenge a juror, without showing cause. The jury found the defendant guilty, and defendant moved to set aside the verdict.

Trespass, qu. cl. Plea, the general issue and a brief statement of soil and freehold. The land formerly belonged to one Blake. The defendant had two notes against Blake, one dated April 15, 1864, and the other dated September 26, 1864, and defendant brought a suit upon said notes against Blake, caused the land to be attached January 28, 1865, recovered judgment November 28, 1866, and the land was set off to defendant upon execution.

Trover for one horse, alleging a conversion July 4th, 1868. At the trial upon the general issue, it appeared that the plaintiff, who was the keeper of a livery stable, let a mare and top-buggy to the defendant on said July 4th, to go from Rochester to Great Falls and Dover, but whether to go further also, and especially to Phinehas Hoit’s, the evidence was conflicting.

This is a motion for an attachment at the instance of Mary S. Morrison, and the facts sufficiently appear in the opinion of the court.

Debt on bond, dated March 29, 1866, conditioned that William Cogan, the principal, should take the poor debtor's oath. At this term the defendants, as of March term, 1868, pleaded the discharge of William Cogan in bankruptcy. To this plea the plaintiffs demurred generally. The court- allowed the demurrer: to which the defendant excepted. A copy of the plea is made part of this case.

Dinsmore moved to bring forward five actions in which he was plaintiff and Hanson defendant, and to strike off the entry of “ neither party ” therein. It appeared that these actions were originally brought before a justice of the peace to recover penalties alleged to have been incurred by the defendant’s ram lamb having been at large during the time prohibited by the statute. The justice rendered judgment for plaintiff.

This is an appeal from the decree of the judge of probate of Carroll county, refusing to extend the commission of insolvency on the estate of Ebenezer Wilkinson, upon the application of Benjamin C. Vittum, the appellant. He claimed to be a creditor of the estate, and his claim was for want of care and skill in the cure of his broken leg, which the said Wilkinson, as a physician and surgeon, had undertaken.

Assumpsit. The first count alleged that on the 10th of March, 1862, there was an unsatisfied judgment rendered in the Supreme Judicial Court in favor of one Esty against Robert Barnet, deceased, as administrator of the estate of Samuel Long, and the- plaintiff, for $100, and another judgment in favor of one Williams against Robert Barnet as such administrator, for the other sum of $100, and then the defendant by a certain agreement in writing by him duly signed and delivered…

The questions tin this case arose upon the report of a referee.

This was a- rule to show cause why an attachment should not issue for contempt of court in publishing in the New Hampshire Argus and Spec-tor, a newspaper printed in Newport in this county, of the issue of September 6, 1867,.an article signed “ A Member of Sull. Co. Bar.” The following facts appeared in the case : The respondent is an attorney and counsellor of this court, residing at Sunapee in this county.

The petition of H. H., and others, for a new highway in Newport. At this term of the court, the report of the county commissioners was returned, wherein they had reported in favor of laying out a new highway in Newport, agreeably to the petition which had been previously referred to them, for the distance of something over a mile, and at the estimated expense of about three thousand dollars.

<p>The plaintiffs, as administrators, brought their bill against A. and B., stating that A., owning a tract of land described in the bill, made a mortgage of a certain part of it, and that this mortgage was held by B., as assignee ; that afterwards A. mortgaged the whole tract by two successive mortgages to the intestate. The bill sought to redeem the elder mortgage on part of the land, and to foreclose the two subsequent mortgages on the whole tract. The defendants pleaded, severally, that neither of the two mortgages to the intestate included that part of the land which was covered by the prior mortgage ; and on their motion two separate issues were sent to try the fact whether either of the two mortgages to the intestate included the land before mortgaged. In each of those two mortgages the premises were described “ as the farm on which A. lived, and which he "carried on and the second of the two mortgages recited that the premises were the same as those described in the first. On trial of the issues it appeared that, after the first mortgage to the intestate and before the second, A. conveyed to B. the land covered by the elder mortgage then held by B. The jury found that the first mortgage to the intestate did include the land in dispute, and that the second did not: Meld:</p> <p>That the two issues were properly sent to try whether either of the plaintiff’s two mortgages included the land in dispute.</p> <p>That, as the question of fact in case of each mortgage was whether at the date A. occupied the land in dispute as part of the farm he lived on, the description in one mortgage might well include that land, though the description in the other did not.</p> <p>That the recital in the second mortgage of A. to the intestate, that the premises were the same with those in the first mortgage, could not affect the title of B., which accrued before.</p> <p>That there was no inconsistency with title of the plaintiffs in the finding of the jury that the first mortgage did, and the second did not, include the' land in dispute.</p> <p>That, as the plea of B. was a negative plea denying the title of the plaintiffs • to the land in dispute, constituting a complete bar to the claim of the plaintiffs against B., he could not, after the issue on his plea was found against him, answer to the bill.</p> <p>That where a defendant pleads a plea, which is a complete defence to the merits of the bill, and claims issues to try the facts pleaded, the court will not, after all exceptions to the trial of the issues have been overruled, entertain the defendant’s application to the discretion of the court for another trial of the issues.</p> <p>That, on the facts as they appear upon the return of these issues, the case of the plaintiffs is not multifarious ; that inasmuch as A. has the right to redeem both his mortgages to the intestate in order to reach his equity of redemption in the part of the land not included in the second mortgage, he was properly joined in the bill as to that mortgage.</p> <p>That there is no such variance between the bill and the facts found, as will preclude the plaintiffs from redeemiug the elder mortgage, and foreclosing their first mortgage on the whole tract described in the bill.</p> <p>That, when a case has been reserved in order to settle legal questions as a guide for a future trial of the cause, and after a decision of the questions raised in the case, a party proceeds to repeated trials without applying for a rehearing of a point decided in the case reserved and after a verdict against him, the court will not entertain his application for the rehearing of a point so decided.</p>

Trespass, for breaking and entering the plaintiff’s close in Plymouth, bounded north by the homestead of the defendant, east by the Main street leading northerly from Plymouth village to Baker’s River, southerly by the highway leading from said Main street along the northerly side of land belonging to the county of Grafton, westerly by land occupied by John T. Cutter. The writ was dated Nov. 5, 1866.

Assumpsit. Writ dated May 26, 1866. The first count alleged that defendants were common carriers by railway from Northumberland, N. H.,… Held: and in this case, the buyer urged that the market had declined materially, and further that, at that time, they had no use for the wool. Subject to defendants’ exception, the following portion of the answer to interrogatory 3 in the deposition of John D. Parker, Jr. was admitted, viz: “Yes sir, I know Mr. Deming and Mr. Wilder also.

Assumpsit. Plea, the general issue. The writ was endorsed by the plaintiff, a resident of Michigan ; had never been filed, but was furnished to the defendant shortly before the trial, three years after the commencement of the suit. Upon examining the writ, the defendant moved to quash it for want of a proper endorsement. The plaintiff moved for leave to amend by furnishing a new endorser.

This is an action of covenant broken, founded upon the covenant against incumbrances, the covenant of seisin, the covenant that the defendant had full power and lawful authority to sell and convey in the manner he assumed to do, and the covenant of general warranty, all contained in a warranty deed, executed by the defendant to the plaintiff and dated the seventh day of April, 1868, in common form, purporting to convey to the plaintiff a small tract of land in Haverhill; in…

Indictment alleging that the defendant on the 1st of March, 1887, at Lancaster, was knowingly an unlawful, criminal and common seller of spirituous and intoxicating liquor, contrary to the provisions of an act passed June session, 1855, entitled “ An act for the suppression of intemperance,” approved June 14, 1855.

battery on Nathaniel B. Keniston. It appeared that the defendant’s wife wras present at the time and place when and where the alleged assault and battery was alleged to have been committed. The defendant offered her as a witness, to which the State objected. The court ruled against her admission as a witness, to which the defendant excepted. The jury returned a verdict of guilty. The questions arising on the case were reserved.

Trespass quare clausum. The question in dispute related to the boundary line between two lots of land in Northumberland. It appeared that in 1855 one of these lots was owned by Charles Bellows, and the other by Ira Gould, who was in business in Montreal, and was occasionally in Northumberland, his son, Joseph Gould, living on the farm.

1. This is the same action in which an opinion was delivered by Bartlett, J-) at the August adjourned law term, 1866. At this trial the jury disagreed, but it seemed advisable that the legal questions raised should be considered at the law term before the case went to another jury trial.

Case for injuries received by plaintiff, August 24, 1864, while travelling as a passenger on defendants’ road. Writ dated September 27th, 1865. Plaintiff was described as a “trader,” and it was alleged, as one ground of damage, that he had, since the injury, been unable to attend to his business.

This was an action of trespass for injuries to the person, and alleging by way of special damage, that plaintiff was mail agent on the Grand Trunk Railway, and that in consequence of the injuries received by the assault and battery of the defendant, he was unable for some weeks to perform the duties of such agent, and was obliged to expend a large sum of money, to wit, one hundred dollars, to procure others to perform those duties.

Assumpsit. The writ purported to be dated Sept. 14, 1858, and to have been served by attaching defendant’s real estate, January 14, •1869, and by service on defendant, January 16, 1869.

<p>Where the Supreme Court, at a trial term, continue a criminal case with an order that the respondent, who has been committed to jail, shall recognize in the sum of two hundred dollars, the clerk may take the recognizance after the term of court is over.</p> <p>Upon scire facias, it was held that the cnly surety in a criminal recognizance is bound, although the statute requires two sureties.</p>