Volume 49 — New Hampshire Reports

Case by Lewis Barter & Co. against Wm. A. Wheeler & a. as common carriers of freight for the loss of five thousand seven hundred and fifty-nine bushels of com and three hundred and seventy-seven barrels of flour, and for damage to twenty-six barrels of flour, delivered by the plaintiffs to the defendants to be transported from Ogdensburg to Concord.

<p>A declaration maybe amended by inserting the amount of the plaintiffs’ claim, when the sum was left blank originally, in all cases where the court has jurisdiction of the cause.</p>

In this case the following facts were agreed to : that respondent Jolm TV. Larldn was indicted at the April term, 1869, in this county, by the name of John E. Larkin, with one George M. Green and one Jennette Elliott, for stealing, on the third day February, 1869, at Pembroke, a quantity of bank bills from one Edmund Elliott.

The indictment was against John E. Larkin, Charles M. Green and Jennette Elliott, and contained two counts. The first was for feloniously stealing sundry bank bills, the property of Edmund Elliott, to the amount of $315.00. The second was for receiving certain bank bills knowing them to be stolen. Larkin alone was tried, the other two respondents not having been arrested.

Case. By Ariel K. Moore against Orrin B. Davis. The declaration was to the effect that on the 28th of July, 1866, the defendant was and for a long time had been in the occupation of a hotel and livery stable in Franklin, as the tenant of one Daniell; that on said 28th of July the defendant, for a valuable consideration, promised said Daniell and any person who should be the purchaser of said property (the same having been advertised to be sold at auction on that day) that he…

<p>Under the original charter of the city of Manchester, providing that all fines and forfeitures, and all costs in criminal prosecutions which shall be received by the justice of the police court, shall be paid over to the city of Manchester ; and such fines are to be held by the city for its use and benefit.</p> <p>The law of 1851, providing that the police justice of Manchester shall pay over to the city all fines and fees by him received in actions and prosecutions, by or in behalf of the city, prosecuted by the city or the officers thereof, operates to repeal, by implication the provision referred to in the original charter. Therefore under the law of 1851, all fines imposed and received by the police court of that city, other than those in actions and prosecutions, prosecuted by the city, or its officers, belong to the county of Hillsborough.</p> <p>Under the General Statutes, the fines imposed by the police courts for, all but offences against the police of towns, and for the violation of the by-laws of towns, would belong to the counties.</p> <p>By law of July S, 1868, the provisions of the General Statutes are modified so that all fines and forfeitures, imposed by the police courts, belong to the respective cities.</p> <p>In respect to money paid over to the city, for fines and forfeitures imposed by the police court, that belong to the county, the statute of limitation begins to run from the time of such payment without special demand.</p>

Trespass de bonis for manure by Henry O. Proctor against Walter M. Gilson. The plaintiff conveyed to defendant by warranty deed a lot of land in Nashua, on which was a house and stable. A small piece of the lot was not covered by the buildings, and was used as a back yard, and not cultivated. The plaintiff was a teamster, and kept horses in the stable upon hay and grain bought by him.

This is assumpsit by Horace Johnson against Edwin C. Ferris and trastee to recover the sum of three hundred dollars, money had and received. Writ dated March 18, 1868.

This is a bill in equity to set aside a conveyance of a farm by Thomas Morrison to the other defendant, William R. Morrison, his son, upon the ground that it was fraudulentas to his creditors. The plaintiff was the wife of Thomas Morrison, and having obtained a decree of divorce and alimony, levied her execution upon a part of this farm, which was set off in part satisfaction of her claim.

This is a bill in equity, brought by James Derby against Josiah B. Bichardson and the New England Steam and Gas Pipe Co., and the substance of the bill and answer sufficiently appears in the opinion of the court. The plaintiff having died pending the writ, it is now prosecuted by his administrator, William P. Moulton.

Indictment, found at April term, 1869, alleging that Daniel H. Blaisdell, “ on the second day of December in the year of our Lord one thousand eight hundred and sixty-nine at Danville in the county of Rockingham aforesaid, with force and arms, about the hour of twelve in the night time of the same day. the dwelling-house of one Elisha Quimby, there situate feloniously and burglariously did break and enter; with intent the goods and chattels of him the said Quimby, in the…

<p>Evidence teuding to show that all the taxes assessed by a town in a given year were not paid, may, in the absence of other evidence, become competent upon the question as to whether any particular person who was assessed that year, did or not pay all his taxes thus assessed.</p> <p>The books of a town showing a settlement between the overseer of the poor and the selectmen, of the overseer’s account., including an item charged to the town as paid for the support of the pauper in controversy, would be competent in the nature of an admission, as evidence against the town on the question of the settlement of said paupers.</p> <p>Taxes cannot be abated by vote of the town. The selectmen alone, or the court is authorized to make such abatement.</p> <p>After a presumption of payment has arisen by the lapse of more than twenty years after the assessment and before the date of the writ, that presumption is to be weighed in connection with all the evidence in the case, and the presumption is to stand until it is rebutted and overcome by evidence.</p> <p>A marriage brought about by fraud or force, or fear, so as to be void ab mitin, without ratification, may be ratified and confirmed by the injured and innocent party after the fraud is known, and the duress or cause of fear removed, and the marriage thereby rendered valid.</p> <p>A voluntary cohabitation after full knowledge of the fraud, and after the force or cause of fear is removed, will cure the defect. .</p> <p>Whether the fraud or duress of third persons, not participated in by either of the parties, will avoid a marriage, quaere ?</p> <p>Where the county commissioners have allowed and paid a claim against the county for the support of a pauper, that stands in the nature of a judgment that such person is a county pauper, and is evidence of such facts as must necessarily have been found as the foundation of such judgment, and is prima facie evidence that such pauper has no legal settlement in this state.</p> <p>After a notice in writing, duly served upon defendant town, purporting to be signed by the officers of the plaintiff town, of supplies furnished to a pauper, the acts of the plaintiff town subsequent to such notice are competent evidence upon the ratification of such notice by the plaintiff town.</p>

<p>A family settlement or voluntary conveyance, made by a father to his minor children, will be set aside by a court of equity, as not bona fide, collusive and fraudulent, when it manifestly appears to have been made in meditation, of a future fraudulent indebtedness, and injury to third persons or existing creditros ;</p> <p>Or, when the object of such deed appears to be the creation of a secret trust, beneficial to the grantor, evincing the design of gaining for such grantor a false and ficticious credit, he being in embarrassed circumstances.</p> <p>Or, when made, to hinder, delajr and defraud his creditors generally, embracing both existing and subsequent creditors.</p>

Assumpsit, for money had and recieved, brought by John Perkins and another, Executors of Martha Cheswell against Benjamin Mathes, to recover the amount due on five promissory notes, signed by the defendant, payable to Martha Cheswell, or order, amounting in value to about eight hundred and fifty dollars, including interest. Plea — the general issue, with a brief statement. The plaintiffs produced the notes, and the signatures 'were admitted.

<p>Upon review, no matter or tiling which has arisen since the judgment in the original cause can be pleaded in bar of the further maintenance of the suit.</p> <p>A review is, in its nature, a new trial of the issues before tried between the parties, unless the court grant leave to amend the pleadings.</p> <p>An action of review is a chose in action, which, in virtue of an adjudication of bankruptcy vests in the assignee, who is, alone, empowered to prosecute or defend it, in his own name.</p> <p>Certain provisions of the 14th and 20th Sections of the United States Bankrupt Law of 1867, considered.</p>

<p>If there be a vacancy in the board of county commissioners, the remaining members have no power to act in laying out a highway ; not even to make their report, when all else had been agreed to before the vacancy happened.</p> <p>By the removal of one of the county commissioners from the county his office ipso facto becomes vacant without a declaration by the court.</p>

<p>When in a suit upon a promissory note or bill of exchange, the defendant sets up a partial want, or failure of consideration, in reduction of damages, the brief statement must give notice of the matters relied upon, and contain the substantial elements of a special plea.</p> <p>Therefore it was, held, that evidence of the failure of title to one parcel of land, and the accidental omission to include another, in a conveyance, for which parcel with other lands, the note in suit was given, was not admissible under a brief statement, which set out a failure of consideration to the extent of a sum named, without stating in what said failure existed.</p> <p>The defendant may avail himself, of such matters in defence, under a proper brief statement, without rescinding the entire contract.</p>

The bill is as follows : “The Sugar River Bank a corporation duly established by law, doing business at Newport, in said county of Sullivan, complains against George H. Fairbanks, William Nourse, Charles E. Wheeler, Azuba C. Whitney, George F. Whitney, Martha M. Kibby, William B. Kibby of Newport in said county, Sarah M. Currier and John Currier of East Salisbury, in the county of Essex and state of Massachusetts, Huldah W. Wheeler, and Mason Wheeler of Northiield, in the…

Debt on bond. The condition of the bond is as follows, viz : “The condition of this obligation is such that whereas one Elbridge G. Beers, by order of the supreme judicial court, held at said Newport on the fourth Tuesday of January, A. D. 1867, (in a prosecution for bastardy, in which said town of Plainfield is complainant, and the said Beers is respondent), has been committed to the jail in said county, now if the said town of Plainfield shall pay the prison charges…

Debt, against Ebeuezer H. Adams and William Tandy, upon a bond given to the judge of probate for the county of Sullivan, with a condition in common form, by the said Adams, as executor of the last will and testament of Israel Adams. The action is brought at the request of Joel Dame, administrator of the estate of Lucy D. Adams, hereinafter mentioned. Plea, non est factum; with a brief statement that the condition of the bond has been performed.

<p>In prosecutions instituted in the mame of the state, a general discretionary power, exists in the prosecuting officer, to enter a nolle prosequi. Before a jury is eiiipanneled, or, after a verdict, in favor of the state, this power may be exercised, without the respondent’s consent, and with his consent, at any time during the trial, and before the verdict of the jury.</p> <p>In a penal statute, where one half of the fine goes to the public prosecutor, and the other half to the state, and where the offence has been prosecuted at the expense of the state, it must appear of record to the court, who the complainant is, in order to entitle him to the penalty, otherwise the whole penalty goes to the state.</p> <p>Such record may be in the form of a suitable allegation in the indictment, or the endorsement of complainant’s name on the back of the same, so that the court may be informed, as to the person, entitled to receive his proportion of said fine.</p> <p>Neither the prosecuting officer, nor the indictment, in which, the complainant has a pecuniary interest, is under the power of the complainant, but the prosecuting officer will have control, as in ordinary cases, and will exercise his judgment, and sound discretion, in the disposition of the same, guided by a strict regard to the public welfare.</p>

Tbis case is trespass by John G. Annan against Daniel S. Baker & a.; for breaking and entering plaintiff’s close in Holderness, and cutting grass and carrying away hay, and converting same to defendants use, on the 13th day of July 1866.

<p>Case, by Henry G. Coffin and his wife Sarah, against Plymouth, to recover damages for injuries to the wife, alleged to have been caused by a defect iu a highway, which defendant town was liable to keep in repair. The writ was dated October 19, 1865.</p> <p>The highway in question extended from Plymouth village southerly ou the west side of Pemigewassett river towards Bridgewater. The place of the injury, was about a mile south of said Plymouth village, where before the construction of the railroad the highway ran close upon the west bank of the river, with no fence between the river and the highway, hut with a fence on the west side of the highway and separating it from the intervale lying west of it. This fence had been there in the same place for many years, though it did not appear for how many, before the railroad was constructed, but there was evidence tending to show that this fence had been moved a little further west than it had previously been at sometime after 1838 and before the railroad "was constructed about 1850. The track of the railroad went along close upon the west bank of the river, and to make room for it, the bank was extended further east into the river, a part of the way, and the traveled track of the highway was crowded farther west so as to give it room, and the fence was moved farther west a rod or more, along near the place of the accident when the railroad'was built. It appeared that Mrs. Coffin and her sister were driving with a horse and buggy, over this road up. towards Plymouth Tillage when an engine and train of cars, suddenly came round a bend ór curve in the road and came in passing, close along by the side of the traveled track in the highway -where said horse and -wagon was, that the horse being frightened by the engine sheered to the west of the traveled track and that the wagon run into a hole or hollow, and tipped over, and that Mrs. Coffin’s ankle was broken and at the same time the wagon and harness, were broken and at the same time the wagon and harness belonged to Dudley C. Clark, and Bowles of Plymouth. Plaintiff called said Clark as a witness, who stated among other things, that he claimed damages of the town of Plymouth for the injuries to this -wagon on this occasion. The evidence tended to show that this claim had been made against the town and had lain for some time unadjusted, that the selectmen or some of them had been spoken to, several times about it, and that finally, Clark notified the chairman of the board, that he should sue the town unless the claim was adjusted on or before a certain day then specified; that thereupon inquiry was made of Clark, as to what was the least sum he would take to settle the matter, and he offered to take what he was obliged to pay for having his wagon repaired ($25,00,) which the town paid, but the first selectman when he made the payment, claimed to Clark that the town was not liable. The evidence, that the town paid the amount claimed by Clark and Bowles, was admitted subject to exception.</p> <p>The court instructed the jury, that they might consider the fact, of the towm having paid this claim of Clark and Bowles, as evidence in the nature of an admission of liability on the part of the town, but that they might consider all the circumstances under which the admission was made, in deciding what weight was to be given to this admission. ..</p> <p>Defendant requested the court to instruct the jury, that the burden of establishing the existence of the highway, being upon the plaintiff and he having produced no evidence of a laying out in conformity to' strtute law, he must prove that the worn and travelled part of the highway in which Mrs. Coffin was traveling, had been in use by the public as such, and actually traveled as a highway at the place where the accident occurred, for at least twenty years prior to the date of the accident, which the court declined to do, and the defendant excepted.</p> <p>The jury returned a verdict for plaintiffs, which defendant moved to set aside.</p>

The parties agreed to the following case, viz : The plaintiffs action is founded upon an award of arbitrators made upon a submission ill writing which is as follows : Submission. “ Know all men by these presents, that whereas differences and disputes, have been, and are yet, depending and unsettled between Chase Whitcher and Daniel Whitcher, for the settling and determining whereof the said parties have submitted themselves and become bound, each to the other, by these…

Assumpsit by Alfred Kelley, surving partner of Kelley & Cleasby, against John K. Davis, for goods sold and delivered by the plaintiffs to Gilman C. Davis, the minor sofi of the defendant, during the winter of 1866, to the amount of $58.33. The plaintiffs sought to charge the defendant on the ground, that the goods sold to said Gilbert were necessaries, suitable to his degree and station in life, and that the father, the defendant should pay for them.

Stephen Goodwin, without counsel, made complaint to the court against Barker, an attorney of the court. Barker was notified, and the following facts were proved. Barker had brought a suit, on a note, in favor of one McAllister against Goodwin, the action was entered in this district at the February term, 1869, an appearance was entered by counsel for Goodwin, and the action was continued.

Case by Edgar A. Jordan against Bichard Hanson. The defendant demurred.

<p>A sale of growing trees with a right at a future time, whether fixed or indefinite, to enter upon the land and remove them, conveys an interest in the land, within the statute of frauds, and must be in writing.</p> <p>Where the sale is of the trees simply, without fixing any time for their removal, the law will imply that it is to be done in a reasonable time.</p> <p>The plea of defendants that they entered as servants of the vender under the license implied from the sale of the trees, is not sustained by proof that they had bought the trees of the vender and entered on their own account, nor is such license assignable.</p> <p>Proof that the original purchaser of the trees had paid for all of them, is not admissible, to mitigate the damages in the suit against his assignees, or taking them away.</p> <p>5. It follows that the defendants entered without shadow of legal right, and - no supposed equities existing between the plaintiff and Stephen Batchelder, can be considered in determining the liability of these defendants, or in fixing the award of damages they should pay-</p>

This was trespass on the case, by Joseph W. Cooper, and John C. Marshall, against the Grand Trunk Railway Company of Canada.

Trovek, by Colebrook against Sherburn P. Merrill, in review for “certain bank bills representing in all one hundred and fifty dollars and of the value of one hundred and fifty dollars. At this term the defendant filed a demurrer to the declaration, assigning as cause of demurrer that, the description of the bills is insufficient; which the court, in its discretion, refused to receive, and the defendant excepted.

<p>The consideration or equivalent for state aid, was actual service in the army of the United States, under an enlistment in some town, city or place of the state, where such service was rendered.</p> <p>Such was the requirement of the law after the act of July 9, 18G2.</p> <p>Negotiable papers, signed by agents without authority of law, are not valid in the hands of any one.</p> <p>The party discounting such paper, is bound to inquire at his peril, whether it was signed by a party, capable and competent in law to bind himself, or by an agent duly authorized to bind his principal. Also, whether the party, from whom he receives such paper, was competent to make the transfer, either in his own right, or is authorized to do it for his principal, for whom he assumes to act.</p> <p>Such paper is liable to the same defence in the hands of an indorsee, as it would be subject to, in the hands of the original promisee.</p> <p>Generally, where a corporation has legal power to issue negotiable securities, the bona fide holder has aright to presume they were issued under such circumstances, as will give them the requisite vitality ; and in such cases they are no more liable to be impeached for any infirmity in the hands of such a holder, than any other commercial paper. The order in fact, though negotiated for value, not having been authorized by law, is open to defence, and this legal infirmity can be shown.</p> <p>In order that such an instrument be good as commercial paper, it must be for the payment of money only, and absolutely, and not upon any contingency, either as to amount, event, fund, or person.</p> <p>In this case, the order was drawn on a specific fund, which under the law was not in existence, and as to the parties, at the time it was drawn, had utterly failed, and it was to be used as a mere voucher by the original parties there, to, and there was enough on the face of it, to put the parties on inquiry. •</p>

<p>A secret partnership is where the existence of certain persons as partners is not avowed or made known to the public by any of the partners.</p> <p>Where all the partuers are publicly made known, whether it be by one or all the partners, it is no longer a secret partnership, for this is generally used in contradistinction to notorious and open partnership. And it makes no difference in this particular, whether the business of the firm be carried on in the name of one person only, or of him and company.</p> <p>Where business is thus transacted by A & B under the firm of A & Co., B cannot be considered as a dormant partner ; and if he retires from the firm, he is bound to give notice of his retirement, or else he will remain liable upon contracts subsequently made in the name of the firm.</p> <p>As to the public, such notice need not be actual; it may be constructive and may be implied from circumstances ; but a person accustomed to deal with the firm will hold a retiring partner, for debts subsequently contracted in the name of the firm, unless such person had actual knowledge of the retirement, or was put upon inquiry.</p> <p>As to the debtors of a firm composed of several persons, doing business under the style of A, B & Co. the firm is to all practical intent the same after the retirement of one of the partners : and such change in the constitution of a firm will not excuse a person retiring from a copartnership accustomed to deal with the firm known as A, B & Co., from giving notice to that firm, of such retirement in order to avoid subsequent liability.</p>

<p>Trespass, quare clausum, Warren H. Smith, Adm’r. against James N. Forrest, plea — general issue.</p> <p>This suit was commenced by Jeremiah Smith, who owned the lot of land in question, and who died pending the suit. The defendant owned fifty acres off the west end of lot- twenty four in Northfiekl, aud also extending south and taking off the west end of another -strip of land laying south of said lot, of uncertain width. The said lot twenty-four, and the said strip were ancient lots and were surveyed •and layed out by the original proprietors of Canterbury, of which Northfiekl was part. The surrounding land was also laid out by them and lotted and a plan of all said lots was made by them, and said laying out and plan were recorded in the records of said proprietors as early as 1781, and used as evidence in this trial.</p> <p>PLAN.</p> <p> </p> <p>The plaintiff had owned seventy-five acres of the same lots, extending across both said lots, and bounded west by the defendant’s land, and so extending far enough east to make his seventy-five acres; but he had sold to one Elias Abbott, and conveyed to him by deed, seventeen acres off the north end of his said strip, extending the whole width from east to west. The question in dispute in this case was, as to the line between the parties, running north and south. The defendant claimed to a line on which was a fence the whole length from north to south between the defendant’s land and said Abbott’s and the plaintiff’s, with bounds at the north-east and northwest corners of the defendant’s land, as he claimed it, and also a bound at the south-west corner of said Abbott’s land, in the line of the fence. The plaintiff claimed to a line some six rodstwest of the other line, on which was no fence and no corner bounds, though the evidence tended to show there were some marked trees on this line. Several witnesses, “ each ot whom had been, at some time, the owner and occupant, either of the defendant’s land or of the seventeen acre > sold by Smith to Abbott as aforesaid,” who had known the line and bounds as claimed by the defendant, for many years, and had known of no other until recently, after describing the lines and bounds, as known by them, were asked, subject to the plaintiff’s exception, whether they had ever known or heard of any controversy concerning this line or these bounds until this controversy arose. They all answerd in the negative.</p> <p>Gardner S. Abbott was called-as a witness, by the defendant, who was a grandson of Elias Abbott, to whom the seventeen acres were deeded by Jeremiah Smith, in 1817, and testified, subject to the plaintiff’s exception, that his grandfather, while he owned the seventeen acres, and prior to the year 1830, pointed out to the witness, on the ground, the bounds around the seventeen acre place; to wit, the north-west corner and the south-west corner of his land, which were both in the line as now claimed by the defendant. The same witness also stated, subject to the plaintiff’s exception, that his father, whose name was also Elias, in 1861, told the witness that he (the father) and Jeremiah Smith (the plaintiff’s intestate) were present when the bound at the south-west corner of the seventeen acres was established, to which the plaintiff excepted. The witness further stated that they (witness and his father) were not at the bound, nor on the laird, at the time of this conversation, but that they were talking about the chestnut stake corner (the one in the line now claimed by the defendant.) It also appeared that the witness, and his father, and grandfather, had lived on the lot twenty-third, adjoining lot twenty-four, and near and adjoining this seventeen acres; that the father and grandfather had been well acquainted with this piece of land, had cleared a part of it and occupied it, in connection with lot twenty-three, as a farm : that his grandfather died in 1841, and his father in 1852. Verdict for the defendant, and the questions of law were reserved.</p>

Informations, filed by the attorney general against tbe defendants for not providing suitable fishways over the dams across the Winnipiseogee river, in Franklin. One of the informations is against the Franklin Falls Company and Walter Aiken ; the other three are each against the Franklin Falls Company alone.

<p>The rules made by the directors of the Concord Railroad required the condurtors to collect of passengers paying in the cars ten cents more than the regular fare. One of the conductors, in certain instances, received of such passengers the regular fare without the ten cents extra. In order to conceal this irregularity from the Railroad, he did not return the fares so received ‘ on his way-bills, filed in the ticket-master’s office, from day to day, and pay over the same to the ticket-master, as by the rales of the Railroad, of which he had knowledge, he was required to do. "With the money so taken he bought tickets, at the ticket office, and, after punching them so as to show that they had been used, returned them to the ticket-master with the tickets taken up in the regular course of business, and, in this way, the money all came into the possession of the railroad. This was done with the knowledge and consent of the superintendent, but with the understanding and agreement between him and the conductor that the whole transaction should he concealed from the corporation aud its directors, and it was so concealed.</p> <p>Held, that this did not constitute a payment by the conductor to the railroad of the fares taken in the cars, and that the railroad could recover these fares of the couductor in assumpsit for money had and received.</p> <p>An agent of the Concord Railroad, whose duty it was to sell tickets issued by that road, for his own profit purchased joint tickets issued by other roads under a contract with the Concord Railroad, entitling the holder to a passage on the Concord Railroad, and sold these tickets to passengers who would otherwise have bought the tickets issued by the Concord Railroad, and entrusted to the agent for sale. The Concord Railroad derived a larger profit from its own tickets, than from the joint tickets issued by other roads.’ The agent bought and sold the joint tickets with the knowledge and consent of the superintendent of the Concord Railroad, but the corporation and its directors had no actual knowledge of it.</p> <p>Held, that the Concord Railroad could recover of the agent, in assumpsit for money had and received, the profits made by him in thus buying and selling the joint tickets.</p>

<p>The decree of the supreme court in a divorce case, assigning to the'wife part of the. real estate of her husband, effectively vests the title to such portion of the real estate in the wife, without any conveyance from the husband.</p>

<p>When some of the members of a partnership retired, and the others continued the business under the same firm name, a promissory note given by the new firm for a note of the old firm, the payee being ignorant of the change, will not be deemed payment.</p> <p>The giving of such note operates as payment upon condition that the note proves to be productive, and if the creditor makes an absolute sale and transfer of the note or of a judgment upon it, without the assent of the old firm, and then treats it as his own, he must be deemed to have elected to take it as payment, even if he receive less than the amount due upon it.</p>

Trover, by J. M. & S. F. Stanton against Bobert W. Thompson plaintiff in review, for a sawing machine. This is a review of the action transferred to the law term from the September trial term, 1864, and again from the January trial term, 1866.

Monadnock Railroad v. Peterborough. Assumpsit. Writ dated November third, 1869, plea the general issue. Held: but for the circumstance that he happened to be absent from Concord for a day, and did not receive the notice till after the meeting had been held. Frederick Livingston was duly notified of the meeting, but he refused to attend, because he was opposed to the reconsideration.

<p>The question whether there are any debts or legacies, for the payment of which, the lands of an estate in the course of administration, are properly liable, is one clearly within the jurisdiction of the court of probate, and the decision of that court, upon that question, will be final and conclusive i f no appeal be taken.</p> <p>All claims against a solvent estate, are barred by the statute in three years after the granting of administration, specified cases excepted, unless suit thereon was commenced within the three years, and was not adjusted at the close of said term.</p> <p>The administrator, cannot by any promise in writing or otherwise, take any claim out from the operation of this statute, nor is he at liberty to omit to pieud that statute of limitation, in any case where it is applicable.</p> <p>The judge of probate should not therefore grant to an executor or administrator, license to sell lands of the estate, if solvent, after the expiration of three years from the granting of administration, except in the cases specified in the statute,unless there are suits against the estate pending and unadjusted at the expiration of the three years, nor in cases of insolvency, unless in eases of appeal from the commissioner, or cases of review, pending and unadjusted at the close of said term, or for other similar reasons.</p> <p>And when such special reason exists, for extending the time, the administrator should be required to make his application for license, within reasonable time after the cause of delay has bejn adjusted or ceased to exist, else his application should be refused.</p> <p>An administrator,whether the estate is s fivent- or insolvent,is bound to execute his trust in a reasonable time,and if he unreasonably delay aud neglect to apply land of the estate for the payment of debts, his right to sell the land, his lien upon it for the payment of debts, will be forfeited and lost, and the heirs or devisees may enter and hold the land against him.</p>

<p>Assumpsit, by Jacob Sargent against Levi Currier, for money paid, and money had and received. Writ dated May 27, 1868. Plea : The general issue and brief statement of the statute of limitations. The plaintiff claimed to recover $100 and interest from June 2, 1862. One Carter, owning a horse, mortgaged it to one Hill, and afterwards sold it to defendant, September 4, 1861; and in one or two months after that time, the horse passed by exchange, from defendant to plaintiff, and by exchange the horse afterwards passed to one Philbrick, and from him to one Hodgdon. Hill then took the horse on his mortgage from Hodgdon, and. sold the horse on the mortgage for §100, at an auction sale June 2d, 1862 ; one Sawyer being the purchaser. Hodgdon soon afterwards bought the horse of Sawyer and paid him $100.</p> <p>The defendant, plaintiff, Philbrick and Hodgdon, were not aware of the existence of the mortgage, until Hill took the hoi’se from Hodgdon. Upon demand made by Hodgdon, Philbrick paid him §100, and upon demand made by Philbrick, plaintiff paid him $100, plaintiff made demand on defendant, and he refused to pay him anything. This suit was brought-within six years of the sale on the mortgage, and the payment made by plaintiff to Philbrick, but more than six years after the contract of exchange between plaintiff and defendant. Two questions were reserved: First, can assumpsit for money paid, or had and received, be maintained? Secondly, is plaintiff’s claim barred by the statute of. limitations ?</p>

Assumpsit by Amoskeag Manufacturing Company against George A. Barnes, surviving executor of Josiah M. Barnes. This is the same case reported in 48 N. H. 25. Since that decision, the defendant has pleaded discharge in bankruptcy, and the replication is, that the debt was of a fiduciary character, and the question now reserved, is whether the debt was of a fiduciary character, within the meaning of the bankrupt law.

Assumpsit, by James C. Carleton against Joel M. Haywood and wife, for money had and received. The defendants filed a general demurrer, claiming that this action in common form, does not lie against husband and wife. The court overruled the demurrer, and the defendants excepted. The case was tried upon the general issue, saving to the defendants the benefit of the exception.

<p>The power of compelling partition is incident to all estates held by tenants in common.</p> <p>Whether certain words contained in a deed amount to a condition, or a limitation, or a covenant may be matter of construction depending on the contract. The intention of the party to the instrument, when clearly ascertained, is of controlling efficacy.</p> <p>But conditions, especially conditions subsequent, are not favored in law, and must be strictly construed, because they tend to destroy estates ; and if it be doubtful whether a clause in a deed imports a condition or a covenant, the latter construction will be adopted.</p> <p>Tenants in common were seized of certain premises by virtue of a deed of conveyance which contained the following clause : “Provided however, and this conveyance is made upon the express condition that every building-erected on said premises, except sheds and out-bnildings, shall be built of brick or stone and the roof slated; and that every building that shall be placed on the premises, except sheds and other ont-buildings appertaining to the main building, shall be built fronting on said street, so that only one row of main buildings shall be erected between said street and the passageway in the rear thereof. And in case any building shall be erected thereon in breach of this condition, the said manufacturing company, by their ageat? servant or assigns, may enter and abate the same without being liable to any action of trespass therefor.” At the time of said conveyance and of the subsequent petition for partition of the premises, there was standing thereon at connected block of buildings covering the whole front thereof on said street, and built according to the provisions contained in said clause of the deed. Held, that the petitioner for partition was entitled to partition of the premises ; and that, after partition, a breach by one tenant of the covenant or condition expressed in the deed would not subject all the land conveyed by the same deed to forfeiture ; and that if one of the tenants holding in severally should erect any building on the premises, contrary to the prohibition of the deed, the party having the right to “enter and abate the same” might do so, without destruction of or inteferenee with the property or rights of the other owners of the estate.</p>

<p>By the report of the County Commissioners, a portion of the expense of laying out ami building a highway in other towns, was assigne’d to be paid by the town of F. under the provisions of Gen. Stat., chap. 62 § 12.</p> <p>One of the commissioners was a stockholder in a corporation taxed and paying state taxes in the town of F. Hdd, that the commissioner was interested in the proceeding and disqualified to act therein ; and that the report of the commissioners laying out the highway, must be set aside.</p>

<p>"Where a debtor is arrested in one county in this state, and gives his bond, with the condition to take the poor debtor’s oath in one year, or to surrender himself to the creditor ; the taking of the oath before a tribunal in another county, is not a legal performance of the condition of the bond.</p> <p>The act of the legislature of June session, 1864, was intended to secure an impartial tribunal to the interested parties, but not to change the rule of practice on this subject.</p> <p>Under an agreed state of facts, submitted to the court by the counsel in a case, the court will presme such facts to be true, and competent evidence in the case, for them to weigh, and, to determine the legal questions and inferences springing out of them.</p> <p>The court will determine, whether the language or conduct of a party, or his counsel, amounts to a waiver or estoppel, as matter of law, when the facts agreed to by the counsel justify such a decision, or otherwise.</p> <p>The doctrine of waiver and estoppel considered.</p>

<p>When there is neither fraud, malice, gross negligence or oppression, damages will be confined to compensation for the plaintiff’s injury.</p> <p>In such cases the character, standing, condition or circumstances of the defendant, are entirely immaterial.</p> <p>But when exemplary or punitory damages are to be given, the condition and circumstances of the defendant may be material. What would be sufficient damages by way of example and of punishment for a day laborer without means, would be nothing byway of punishment or example to a • wealthy corporation.</p> <p>Excessive damages are good ground for setting aside a verdict, when from their exorbitancy, the court may reasonably presume that the jury in assessing them, were influenced by passion, partiality, prejudice or corruption. So a verdict will be set aside when the damages are too small, as well as when they are too large.</p> <p>When the verdict is set aside on the ground of excessive damages, the court, instead of simply ordering a new trial, will give the plaintiff the option of reducing the verdict to the sum, which the court considei reasonable, and upon his remitting the excess, will give him judgment for Ibe residue, and deny the motion for a new trial, and this in actions of tort is well as upon contract.</p>

Assumpsit, by Nathaniel Gordon against John L. Norris and George B. Neal, on account annexed, and for goods sold and delivered and goods bargained and sold, with a special count for not taking and paying for a quantity of hay alleged to have been sold by the plaintiff to the defendants, on June 5th 1867, at $38 per ton.

Case, by Ira H. Woodman against town of Nottingham, to recover damages for injuries received in consequence of a defect in a highway in said town. Plaintiff set forth in his declaration that he was injured in his person and in his apparel; that his horses, harnesses and wagon were damaged ; and that in being thrown from the wagon into a brook at the time of the injury, he lost over live hundred dollars in money that was in his pocket, which was never recovered.

Augustus J. Rowe — and Levi G. Towde, plaintiff in interest, in the matter of Thomas Langley. At the October term, 1869, the plaintiff recovered judgment. The defendant moved to set off against that judgment a judgment recovered by one Melcher against said Rowe at the January term, 1866, which was assigned to said defendant.

<p>Whore the lessee of a boat is using it to fulfil a contract with a third person, and it is wrongfully taken from him by the lessor, he cannot, in an action of trespass, recover damages for what he lost by thus being prevented from completing his contract, if such damages are not specially averred in the dec. lara-tion.</p>

Indictment against Josiah L. Pike for murder, tried before Perley, C. J., and Doe, J., October term, 1868. Held: him, the said Thomas Broivn, in and upon the left side of the head of him, the said Thomas Brown, then and there, feloniously, wilfully and of his malice aforethought, did strike and beat — giving to the said Thomas Broivn then and there, with the axe aforesaid, and by the stroke aforesaid, in the manner aforesaid, in and upon the…

In Equity. The bill, by John C. Ewins and Daniel N. Russ against Earl C. Gordon, was filed June 26,1868.

Indictment against Frank A. Lincoln for obtaining money of one John J. Leavitt, a debtor of Burgess & Faxon, by falsely representing to him that he was the authorized collector of said Burgess & Faxon, and empowered to receive payment of the debt due from saicl Leavitt to them, by means of which he obtained the amount of such debt.

This is an action of assumpsit, by the town of Greenland against Rufus W. Weeks, Samuel A. Hatch, and J. Bartlett Weeks, for money had and received, commenced March 23, 1867. Plea, the general issue. Plaintiff proved that defendants were selectmen of the town of Greenland from 1863 to 1865, and that they, while acting as selectmen, received certain sums of money for, and on behalf of, the town. The plaintiff then rested.

<p>When a complaint before a police court for larceny described an offence, the maximum punishment of whieh, was greater than a police court had power to impose; — it was held, that such court had no jurisdiction to try such offence, and that an appeal from its sentence, although it was to pay a fin© within the power of that court to impose, must be dismissed.</p> <p>Held, also, that the value of the goods as stated in the complaint, must govern the question of jurisdiction, and not the value as found on trial, and that this defect could not be cured, by amendment in the appellate court.</p>

This was trespass guare clausum fregit, by George S. Evans against Aaron W. Eoss, John W. Bateman & Albert Foss, wherein plaintiff alleged in his writ, that the defendants, on the 11th of November, A. D. 1868, with force, &c., broke and entered a certain close and barn of plaintiff, situate iu Strafford, in this^ county, and then and there with force as aforesaid, took and carried away a certain yoke of oxen, five years old, the property of plaintiff, and of the value of…

<p>Appeal from police court. The facts will appear in the opinion.</p>

Foreign attachment. The question of the trustee’s liability was submitted to the court upon his deposition, the material portions of which are as follows : * ‘Interrogatory 2d; State whether or not any money during said time (July or August, 1868, and previous to the service of this writ,) which had been taken from said Isaac Worster, with or without his consent, was deposited with you, or came into your possession in anyway? Answer; there was.

This was a writ of error, brought by Cyrus Fowler and others against Elias Towle. The writ of error is dated October 1, 1869. The original action was replevin, for a meeting-house bell, in favor of Towle, against Fowler and others. The plea was non cepit, with a brief statement, giving notice of title to the bell in the defendants and others. By consent of the parties, the action was tried by the court at Freedom, after the adjournment of the May term, 1868.

Assumpsit by David A. Roundy against Lucius Thatcher, for money had and received, money lent and paid, goods bargained and sold, and sold and delivered, and for “ labor performed by a minor son of the plaintiff for the defendant at his request,” and for interest on debts due, &c. Plea, the general issue. The case was committed to an auditor who made the annexed report.

In the writ by George K. Harvey against Joseph Need, Abigail Need and Isaac Loveland the defendants are described as Joseph Need, Abigail Need and Israel B. Loveland, and their names are so entered upon the trial docket.

<p>When, in an action for slander, fhe plaintiff proved the speaking by defendant of other defamatory words, for the purpose of showing malice, the defendant will not be allowed to ask the witness how he “understood” those words.</p> <p>Such enquiry,will he allowed in reference to the words charged in the declaration, only when they are ambiguous, and always with great caution.</p>

In equitat. Luden B. Page of Keene, ¿be., complains against Chester Nims and Stephen Barker, both of said Keene, yeoman, and the town of Keene a body corporate, &c., says, that he is the owner of a farm in said Keene, upon Avkich he lives and Avhich is bounded easterly in part on the new cemetery lot so-called, in said Keene, and that the said Kims and Barker being selectmen of- said Keene, with one Edwin R. Locke, received a petition, signed by sundry legal voters of said…

This was a petition for the writ of mandamus addressed to the court, against Edward R. Perkins, as collector of taxes, in the town of Sunapee, for the year 1867.

Tins was assumpsit brought by Johnsou & Fisher against IL W. Silsbee, and one W. F. Howard, trustee. The only questions raised related to the liability of the trustee. The depositions of the trustee and others were submitted to the court from which the following facts appear. The trustee bought of defendant and- of his daughter, J. Arlette Silsbee a sewing machine, for which he agreed to pay the sum of $65.00, no part of which had been paid.

<p>A right of dower, although inchoate and contingent, is so far an existing incumbrance upon the lands to which it attaches, as to be within the operation of the usual covenant against incumbrances.</p> <p>An heir or devisee is liable on the covenants of his ancestor or devisor, which were not provable during the administration of the estate, to the extent of the personal as well as the real estate which has so descended to him.</p> <p>The covenants of warranty, and for quiet enjoyment, if possession attend the conveyance, are in the nature of real covenants, and they run with the land conveyed and vest in assignees or the purchaser.</p> <p>A widow may be estopped or rebutted from claiming dower, by the covenants of her ancestor from whom she has received an estate of value more than sufficient., after deducting what she would be entitled to as dower, to respond to the damages which might be recovered in actions upon such covenants.</p>

Assumpsit, for the support of the pauper wife and children of one Volney C-. .Verdict for the plaintiff. Motion of the defendant for a new trial. The question was whether Volney had a settlement in Lyman, by derivation from his father Isaac. Lyman was divided into the two towns of Lyman and Monroe, July 13, 1854. There was evidence tending to show that Isaac resided in Lyman from 1833 to 1851.