Volume 5 — New Hampshire Reports

This was a scire facias sued out on the 25th January, 1828, against the defendant, as bail of James Batehelder, junior, and returnable to the court of common pleas here, March term, 1828. At the July term of the common pleas, 1828, judgment was rendered in favor of the defendant, from which judgment the plaintiff appealed to thig court. The cause was submitted to the decision of the court upon the following facts.

Assumpsit on a promissory note made by Drake, dated October 24, 1825, for $60, payable to the plaintiff. It was agreed, on the part of Drake, that he was justly indebted to the plaintiff' in the amount of the note.

Assumpsit upon a note, dated February 21, 1827, for $88,59, and payable to the plaintiff on demand.

Debt upon a judgment of this court here at September term,; 1823, for ‡93,97 debt, and 13, 68 costs. The defendant pleaded in bar that, on the 14th November, 1822, execution issued on the said judgment, by virtue of which the body of the said Cilley was arrested and committed to prison, and that said Cilley being so in prison, the said Nealey on the 15th February, 1823, voluntarily discharged him, from his said imprisonment.

<p>This was a writ of entry brought to recover a tract of land in Tam worth, and was tried here upon the general issue at September term 1828.</p> <p>It appeared in evidence that, W. P. Hidden was formerly seized of the demanded premises in fee, and the demandant having obtained a judgment against the said W. P. Hidden, and sued out execution, caused the same execution to be extended upon the demanded premises on the 12th February, 1827.</p> <p>The tenant then showed that W, P. Hidden, by deed dated May 2, 1822, conveyed the, demanded premises to the tenant and one Thomas Jones, in fee and in mortgage, to secure the payment of $104,20, in one year, with interest.</p> <p>It was then proved on the part of the demandant that on the Gth August, 1827, he tendered to' the tenant f152,95, in silver money, to which there was no objection, but the tender was refused.</p> <p>In answer to this, the tenant introduced evidence to show that, previous to the time when the tender was made as aforesaid, the right in equity to redeem the land had been foreclosed.</p> <p>It appeared that the tenant was the son of W. P. Hidden, that at and before the time when the mortgage was made both the father and the son lived upon the land, and have since continued to reside there.</p> <p>It also appeared that, as soon as the mortgage was made, the tenant took the whole management of the land, carried it on at his own expense, and received the profits, but the produce of the farm was consumed in the family.</p> <p>The tenant remained thus in possession until after the time when the tender was made.</p> <p>It also appeared, that after the condition of the mortgage was broken, W. P. Hidden knew that the tenant was in possession for the purpose and with the intent to foreclose the right to redeem the land.</p> <p>A verdict was taken for the demandant, subject to the opinion of the court upon the foregoing ease.</p>

This was an action of trespass for breaking- and entering the plaintiff’s close in Gilmanton. The defendants pleaded in bar that the locus in quo was the soil and freehold of the defendant, Haynes, and issue was joined ou the matter of the plea. The cause was tried here at February term, 1828.

Assumpsit for money paid, laid out and expended. The cause was submitted to the decision of the court upon the following facts. On the 31st December, 1827, the plaintiff, the defendant, and one Joel Varney, made their promissory note of that date for their joint debt to J. B. Odiorne, for the sum of $952,48, payable on demand, with interest; and also another note, for their joint debt, for one thousand dollars, payable to the Dover bank, in sixty days, with interest after.

This action was commenced and tried in the court of common pleas, where, at January term, 1828, judgment was rendered in favour of the plaintiff. From that judgement no appeal was claimed, but the defendant, having afterwards discovered new evidence, made application to this court for a new trial, which was granted.

Debt upon a bond dated January 20, 1823, for the penal sum of $0] 1,92. • The defendant pleaded 1st, JVon est factum, upon which issue was joined. 2d, After craving oyer of the bond and the condition, which was in substance, that R. Palmer, a prisoner in the jail in Dover, in this county, at the suit of the said Keay, should continue a true prisoner within the limits of the prison as by law established, without committing any escape until he should be lawfully discharged,…

Trespass, quare clausum fregit, and entering the plaintiff’s gristmill and taking therefrom one outer door and lock, and divers other things, appurtenant thereto-on the 6th May, 1827. Held: that he had a right to remove the mill. The case comes within the strict rule and not within any exception. If these views of the case be just, neither the mortgagor nor these defendants had a right to remove the mill, nor do the acts of which the plaintiff complains.

This was a writ of entry brought to recover a tract of land in Dunbarton, and was tried here upon the general issue, at January term, 1829, when it appeared in evidence, that on the 20th December, 1804, Archibald Stinson was seized of part of lot No. 10, in the fifth range of lots in Dunbarton marked'on the plan B, and of part of lot No. 9, marked on the plan A ; that at the same time, B. Whipple was seized of part of lot No. 10, marked E on the plan, and Dr. Sawyer of the…

This was a petition for a new trial. Samuel Tarbell, senior, made a note for $230, dated 22d February, 1823, payable to Samuel Tarbell, the petitioner, or order, and having made his will, by which, after giving a part of his estate to other persons, he devised the residue to the said Samuel, the petitioner, died on the 25th March, 1824.

Debt upon a probate bond. The defendant pleaded performance of the condition of the bond. To this the plaintiff replied, that the defendant, as administrator, received a sum of money belonging to the estate of his intestate, of which, although requested, he had refused to render an account, and issue was joined upon this allegation in the replication.

<p>This was a writ of entry, in which the demandant counted upon his own seizin, of a tract of land in West-moreland, in this county, and upon a disseizin by the tenant. The cause was tried here upon the general issue, at October term, 1828, and a verdict taken by com sent for the demandant, subject to the opinion of the court upon the following case.</p> <p>•Both parties derived their titles from D. D- who was agreed to have been formerly lawfully seized of the demanded premises in fee simple.</p> <p>The demandant, having sued out a writ in his own name against D. D. in which.he declared upon a note dated May 12, 1824, for $200, caused the demanded premises to be attached by virtue thereof, on the 16th August, 1826, and having obtained an execution in that suit, caused it, to be duly extended upon the same premises on the 19th April, 1827.</p> <p>D. D*. having resided for several years in said Westmore-land, and having become wholly insolvent,, went to Belchertown, in Massachusetts, where, on the 15th June, 1826, lie made a deed, which purported to be a conveyance of the demanded premises to the tenants in fee simple. It did not appear, that the grantees, or either of them were present when the deed was made, nor that there had been any previous agreement between the grantor and the grantees on the subject.</p> <p>D. D. took the deed, and having put it in a trunk at Westmoreland, left this state, and has not since return, ed. But on the 25th July, 1826, he wrote a letter, dated at Albany, to N. D. informing him where the deed might be found, and giving this direction ; “be sure to let the deed be delivered and put on record before the title is snatched away by less deserving creditors.” The deed was found in the trunk at Westmoreland, and on the 15th August, 1826, delivered to a son of Levi Green, who caused it to be recorded in the registry of deeds on the same day. Green was not at home when the deed was delivered to his son, ami sent to be recorded, but returned soon afterwards,'and being informed what had been done, said that the deed was on record in season, and in the morning of the 16th August, 1826, took the deed into his custody, and in the course of a day or two afterwards took possession of the land.</p> <p>It did not appear, that Snow had any knowledge of the deed until the 20th August, 1826. But soon after that time he employed an agent to take care of the land, and the agent and Green made a lease of it to one Tuel on the 1st September, 1826.</p> <p>It was admitted by the demandant, that the amount clue from D. D. to Green and Snow, and the amount of debts for which they were liable as his sureties, exceeded, at the time the deed was executed, the value of the land.</p> <p>There was found in the trank at Westmoreland with the said deed, a bill of sale made by D. D. to Green and Snow, of a pew in the meeting house and some hay in the barn. This bill of sale was delivered to Green and Snow, but the hay and pew were attached by other creditors and never came to the possession of Green and Snow.</p> <p>There was also found with said deed in the trunk a list of books, with directions to deliver them to another creditor as part security for his debt ; also a list of certain notes against D. D. wdiich he wished to have sued and secured. Writs were made on those notes in pursuance of his instructions and property attached on the 15th August, 1826, without the knowledge of the creditors. The conveyances made as aforesaid, and the attachments covered all the estate both real and personal of D. D. which could be attached.</p> <p>It also appeared, that Green, on the 16th August, 1826, sued out a writ against D. D. on one of his notes and caused the demanded premises to be attached^ which, suit is still pending.</p> <p>It was admitted by the demandant, that D. D. made the said deed to Green and Snow from preference to secure their said debts. And it appeared that the said debts due from D. D. to Green and Snow were due to them severally, and not jointly.</p> <p>contended, that the deed of D. D. was not duly delivered to the tenants. It was not in Green’s hands until the 16th August. The delivery of the instrument to his son, and the conveyance of it to the register’s office, did not constitute a delivery to the tenants. A delivery to Green was not a delivery to Snow, because they were not partners, nor joint purchasers, nor joint creditors. Their interests were totally disconnected and several, and in what proportions they were to take is in no way ascertained, unless it be in proportion to the debts due to them respectively. Green was not the agent of Snow to receive the delivery, and a subsequent delivery to Snow and assent by him cannot make it good by relation, to the prejudice of an innocent creditor, who bad attached the land.</p> <p>But if the deed was well delivered, it cannot prevail against creditors, unless a full consideration was paid, or debts to the full amount discharged, as a ground for the conveyance. Here nothing was paid ; no debt was discharged in fact ; no sum was agreed to be paid, or discharged ; no price for the land was fixed ; no notes or sureties were given up. If it could be supposed, that the notes which Snow and Green herd against D. D. might form a consideration for the deed, yet still their liabilities as sureties could not form a good consideration, and in that case the consideration would be inadequate.</p> <p>It is apparent that there, was a secret trust or confidence, as there were to be after-proceedings to settle what should be allowed for the land. : The conveyance appears upon the face of the deed to have been absolute ; but it was not in fact so. The grantees hold the land in trust until it shall be settled whether it is to go in full discharge of the debts or in part payment. The suit brought by Green on one of his notes is decisive proof, that he did not consider that note discharged by the deed. Indeed no one of the notes is discharged, as the deed acknowledges the receipt of the consideration, an#D. D. is estopped thereby to say, that those demands, or any part of them, are discharged by the deed, there being no agreement, that they should be so. Then all the pretended consideration fails.</p> <p>argued, that about one third of the supposed consideration for this conveyance having been a mere liability by the grantees as sureties for the grantor, the other two thirds was not alone an adequate consideration. On what principle could that one third be a valid consideration for an absolute conveyance against the-creditors of the grantor ?</p> <p>Nothing had been paid — nothing might ever be paid by the granices. A mere liability could only be a consideration for a mortgage. The authorities cited seem to be good law on this point. 2 Greenl. 88 ; 3 Dyer, 295, a. Had the grantees, before the deed was delivered, voluntarily paid the debts, or agreed to pay them at all events, and discharge the grantor, either of these might have furnished a good consideration. But the case shows that all their payments were after the delivery of the deed, and that there was no agreement on the subject.</p> <p>If the whole supposed consideration had been an absolute and direct debt to a larger amount than the value of the land, the transaction might still be fraudulent, if there was any secret trust, or if the debt was not discharged by the land. In this case, every circumstance, which usually attends and indicates fraud, existed. If the transaction was fraudulent in law, nothing could attend it, which is not found here. Possession after the sale could not have existed, because the grantor absconded, and the selection of grantees who were creditors was nescessary to cover the fraud. The cover would be ©f-fectual, if no part of the debt was discharged, or agreed to be discharged. There would be a debt, embarrassment, absconding, perfect secrecy in the transaction, a conveyance of all other property, which could be reached by process, no money paid, no discharges, no notes given up, or agreed to be given up. All these existed here. And further, one of the very notes now set up as paid by the land, was subsequently put in suit.</p> <p>The secret trust is manifest. Had there been no such trust, the conveyance would have been a mortgage, or the notes would have been given up or discharged when, the deed was delivered.</p> <p>Every possible door to fraud is thus left open. The price of the land to be any thing or nothing. The time when it is to he fixed, six months, six years, or never. The mode of fixing undetermined, whether by themselves or referees, or sale by auction, or by a jury. Nor will it answer to fix it afterwards, in any of these ways. No court can make a contract for the parties, and thus convert a fraudulent contract into a fair sale.</p> <p>With respect to the adequacy of the consideration, we are not to look to the value of the land, but the agreed value, the agregatio mentium. It is just as fraudulent for a debtor to sell a farm to a creditor for $500, which is worth $1000, as to sell it to one who is not a creditor for that sum. And it makes the case neither more nor less fraudulent, if the debtor owes the creditor beyond the real value of the land.</p> <p>Here the price was agreed, or it was not. If it was not, the court cannot make a price for them afterwards ; and the parties cannot afterwards adopt a mode to fix it, not agreed upon at the time. If they can, any fraudulent sale may be cloaked.</p> <p>No case can be found, where a deed has been held to he valid against creditors, unless there was an express contract as to the price of the land, previous to any attachment. Until there is such a contract, the sale is inchoate and incomplete.</p> <p>In assignments there is always a provision ⅛ the instrument, that the goods or property shall be sold and turned into money, or the assignee takes them at a fixed price ; and the debts to be paid are specified. Otherwise every avenue to fraud would be left open ; and the claims of a creditor, when the assignment should be made to him, might still be enforced in whole or in part, as his caprice or pleasure might prescribe. 5 Mass. Rep. 48, Hatch v. Smith, eta. ; 12 ditto, 464, Harrison v. The Trustees of Phillip's Academy ; 6 ditto, 343 ; 5 ditto, 154 ; 5 Johns. 344.</p> <p>If one sell his land to defraud his creditors, yet the title of his grantee is good, if he be a bona fide purchaser for a valuable consideration without notice of such design. 14 Mass. Rep. 247.</p> <p>A debtor in insolvent circumstances may bona fide give a preference to one creditor to the exclusion of others. And such preference is valid. He may even assign all his effects for the benefit of particular creditors, to the exclusion of others. C Mass. Rep. 342 ; 5 Johns. 412 : 14 Johns. 458; 5 Mass. Rep. 49; 15 Johns. 571; 15 Mass. Rep. 74 ; 17 ditto, 556 ; 5 D. & E. 235 ; 8 ditto, 529 ; 1 Binn. Rep. 514.</p> <p>A deed takes effect from its delivery. 2 Bl. Com. .304, 307 ; Co. Litt. 46, b ; Shep. Touch. 55, 58, 72 ; 8 Mass. Rep. 239 ; 9 ditto, 310 ; 2 Johns. 234 ; 4 ditto, 233. The delivery of a deed may be by words, or by acts without words. And the delivery may be either to the grantee, or to a third person who has no special authority, for the use of the grantee. 12 Johns. 536 ; Cowper’s Rep. 204 ; Shep. Touch. 57, 58 ; 1 N. II. Rep. 357.</p> <p>It is not essential to the valid delivery of a deed, that the grantee be present, and that it be made to and accepted by, him personally. A delivery at tbe register’s office or any where else, in the absence of the grantor is good if he afterwards assent and take the deed. 12 Mass. Rep , 460 ; 17 ditto, M0 ; 9 ditto, 310 ; 1 N. XI. Rep. 357 ; Shep. Touch. 58 ; 12 Johns. jVK'.</p> <p>Every man is presumed to assent to a grant, made for his benefit, 1 Binn. 318.</p> <p>All such acts as give estates directly, or by way of use, are good at first, and the thing granted when the deed of grant is delivered to the grantee’s use, shall vest in the grantee before he has notice of the grant, or agree to accept of the thing granted ; * so, that if lands be granted immediately by feoffment, gift, &c. the things granted shall be said to be in the grantee, and the grant good before notice or agreement, until disagreement. Shep. Touch. 283 ; 6 Mass. Rep. 24 ; 2 Ventris, 138 ; 1 Shower, 308 ; 1 Binn. 502 — 503, and 518 — 520.</p> <p>The delivery of the deed to Green and the acceptance by him enures to the benefit of Snow, and is a good delivery to vest the title in him. If a feoffment be made to A and B by deed, and livery is made to A in the absence of B, in the name of both, the livery is godd to pass the estate to both. A difference is taken between two attornies, who have but a naked authority and two grantees, who have the interest. Co. Litt. 49, b.</p> <p>The cases above cited demonstrate, that the deed in this case took effect the moment it was delivered to Green’s son.</p> <p>But it is said, that, although the deed might have been well delivered and accepted by the grantees, the conveyance is fradulent as regards the creditors of D. D. ; that no price was fixed for the land, the notes held by Green and Snow Were not cancelled ; that notwithstanding the conveyance, one of the notes has been sued, and all the other demands may be sued and collected of D. D. and thus, it is argued, all the supposed consideration for the conveyance fails. The answer to these objections is very obvious. It is true that a suit was commenced by Green, after he accepted the deed. The fact was, that the land was not sufficient to pay the amount due to Green and Snow, and the amount for which they were liable by a considerable sum, and surely if they accepted the land in payment, so far as it would go, Green had a good right to bring a suit and recover the balance due to him. It is also true, that no price was fixed for the land, and that the notes were not cancelled. But the moment they accepted the deed, the legal effect was payment of the notes and other demands they held against D. D. to the extent of the value of the land conveyed.</p> <p>But, it is said, the liabilities of Green and Snow as sureties could not form a good consideration. This is not so. When they accepted the title to the land, they thereby changed their original character and relation to D. D. Instead of sureties, they became principals. Having received the land for that purpose, it was a fund in their hands for the payment of those debts, and by accepting this fund, they assumed the payment of the debts, and if D. D. shall be hereafter compelled to pay them, he will have his remedy against Green and Snow.</p> <p>It is said, here is a secret trust. How so ? Was any interest reserved to D. D. ? If the land had been of greater value than the amount Green and Snow were entitled to receive, there would have been a trust-But the fact was not so. The land was not sufficient to : afford them a full indemnity. There could then, be no trust. '</p> <p>There is in the case neither fraud in fact, nor in ⅛⅜ A transaction like this has no tendency to defraud creditors. it was no more, nor less, than paying the debts due to Green and Snow in part, and is as free from fraud as if D. D. and Green and Snow had agreed upon the value of the land, given up the notes to the amount, and D. D, had delivered the deed with his own hand to the grantees. The effect upon the creditors would have been precisely the same in the one case as in the other.</p>

This was an action of debt upon a probate bond, given by D. Dwight, on the 15th May, 1817, upon his being appointed administrator of the estate of John Evans, deceased, and executed by Job F. Brooks, as surety of the said Dwight.

<p>AssumpsitTuR goods sold and delivered, between the 24th December, 1826, and the 13th June, 1827.</p> <p>The cause was tried here upon the general issue, at October term, 1828.</p> <p>It was admitted that the goods mentioned m the declaration were sold to Jonathan Wheeler, one of the defendants by the plaintiff, and that they were delivered upon the credit of the said Jonathan. But there was evidence tending to prove, that Jonathan Wheeler was indebted to Stephen Wheeler, the other defendant, — that Stephen knew that Jonathan must shortly fail — that Stephen advised Jonathan to go to Boston, where he had credit, and buy goods, and let him have them to pay what was due to him from Jonathan — that they went to Boston together, and Stephen there held out that Jonathan was in good credit — that Jonathan bought goods of the plaintiff — that large quantities of goods were transferred from Jonathan to Stephen, and that Jonathan failed and run away wholly insolvent.</p> <p>Upon this evidence, it was left to the jury to say whether Stephen, for the purpose of securing his own debt, combined with Jonathan to procure these goods on Jonathan’s credit, and for that purpose held out that Jonathan was a man in good credit, when he knew the fact to be otherwise, and the jury were instructed that if the goods were thus obtained, the defendants might be considered as partners in the purchase, and that both were liable.</p> <p>The jury having returned a verdict in favor of the defendants, L. Chamberlain, for the plaintiff, moved for a new trial on the ground, that a large number of papers purporting to be bills of goods purchased by Jonathan Wheeler, of divers persons in the years 1826 and 1827, and also sundry papers purporting to be bills of goods purchased by Jonathan and J. F. Wheeler, in the years 1825 and 1826, were delivered to the jury, when they retired to consider of their verdict, the same papers never having been read during the trial nor seen by the plaintiff’s counsel.</p> <p>The fact that such papers went thus to the jury was not disputed.</p>

This was a writ of error, brought to reverse a judgment of the court of common pleas. The original action was assumpsit upon an account annexed to the writ brought by Quimby against Bean, before a justice of the peace, and carried to the court of common pleas by appeal, and there tried upon the general issue.

Assumpsit upon anote dated July 23, 1823, made by the defendant, and payable to the bank, on demand, with interest after sixty days.

This was a writ of entry, in which the demandant counted upon his own seizin of two tracts of land in Alexandria, and upon a disseizin by the tenants. The cause was submitted to the decision of the court upon the following facts.

<p>Assumpsit. The defendant filed as a set-off certain articles delivered, and certain sums paid, to the plaintiff and upon the trial here at this term, proved the delivery ófflhe articles and the payment of the money, by reason of which the jury returned a verdict in favor of the plaintiff for $1.0, only.</p> <p>moved the court to limit the costs, because the matter of the set-off was in fact a payment.</p>

This was a writ of entry, brought to recover apart of Shapley’s island, so called, in Portsmouth, being part of the estate of the late Reuben Shapley, deceased, and was tried here at February term, 1829, upon the general issue, and a verdict returned in favor of the demandants.

Assumpsit. There were three general counts, for money had and received, upon an account annexed to the writ, and for land sold and conveyed.

Tins was a pelition tor partition, in which ihe petitioners, Lydia Morrill and Dorothy Morrill, alleged, that they were seized in fee simple, each of one undivided fourth part of certain real estate in Brentwood, called the sawmill privilege at Crowley’s falls, bounded, &c. as tenants in common with Nathaniel Morrill, and prayed that their said parts might be assigned to them in sev-eralty. ■ A committee appointed by the court, made a return of a partition as follows :— They…

Tins was a writ, of error brought to reverse a judgment of the court of common pleas. The original suit was case against Dinsmore, for erecting a dam across a stream on tbc- 17th April, 1802, and causing the water to overflow the. meadow of the plaintiffs, and destroy the grass from that time down to the commencement of this action on the 31st July, 1835.

; This was a writ of entry, in which- the demandant counted upon his own seizin of a tract of land in San-down, “being lot No. 12, in the upper range of lots, originally laid out to the right of Moses Sleeper,” and upon a disseizin by the tenant. : At August term, 1829, the defendant pleaded as follows— And now, at this day, viz. on the first Tuesday of August, 1829, until which clay the plea aforesaid was last continued, comes the said I) E and prays judgment of the writ…

This was a writ of error, brought to reverse a judgment rendered by a justice of the peace upon a report of a referee.

Assumpsit upon anote for $162,84, dated February25, 1824, made by the defendant and payable to Abraham Tilton, or order, on demand with interest, and by Tilton endorsed to the plaintiff.

<p>Parties cannot in any case enter into a rule of reference before a justice of the peace, who is named as a referee in the same rule.</p>

Assumpsit upon a note made by the defendant, and dated 15th April, 1815, for $100, payable to David Copp, of whose estate the plaintiffs are administrators with the will annexed, on demand. Pleas, the general issue and the statute of limitations. The cause was tried here at August term, 1829, and a verdict taken for the defendant by consent, subject to the opinion of the court upon the following case.

<p>■» A tenant in a real action may, for the purpose of disproving the demandant’s seizin, show a title in a stranger.</p>

Assumpsit for $400, had and received by the defendant to the use of the plaintiff. The cause was tried here, at April term, 1829, upon the general issue, and a verdict taken for the plaintiff, subject to the opinion of the court upon the following case.

This was a writ of error, brought to reverse a judgment of the court of common pleas. It appeared by the record, that the plaintiff in error brought an action against the defendant upon an account as follows. u January 31, 1827.

<p>Assumpsit upon a promissory note. The cause was tried here upon the general issue, at October term, 1829, when it appeared in evidence that Nathan Wilds was indebted to one Fife, in the sum of f200 ; that in August, 1828, Fife applied to Wilds for security ; that Wilds requested Jesse Knowlton to be surety, and that Knowlton consented to this, upon certain terms. Application was then made to the defendant, and he consented to be surety with Knowlton. The note mentioned in the declaration was then written as follows. »</p> <p>Marlborough, August 22, 1828.</p> <p>For value received, I, Nathan Wilds, as principal, Philip Sweetser and Jesse Knowlton, as surety, promise to pay J. Hill, of Boston, $200, in six months from date, and interest.</p> <p>This was signed by Wilds, and by Sweetser,with an understanding that it was to be* signed by Knowlton, but Knowlton afterwards refused to sign it. It was then carried to Fife, and he was told all the circumstances under which the name of Sweetser had been put upon the note, and that Knowlton had refused to sign it ; but Fife delivered the note to the payee, and this suit was brought. To prove the circumstances under which the note was signed by the defendant ; he called Wilds as the witness, having released him from all claims he might have to costs on account of this suit. The plaintiff objected that Wilds was nut a competent witness, but he was admitted to testify.</p> <p>It appeared upon the face of this instrument,that it was to be a note of Wilds as principal, and Knowlton and Sweetser as sureties, and Sweetser signed it, on the express condition and understanding that Knowlton was to become surety with him. It was not to be the promissory note of áweetser until Kn owl ton’s signature was procured.</p> <p>Where a composition deed was executed by a surety In the usual way, but with a previous understanding that it was to be void unless all the creditors executed it ; and it was then delivered to one of the creditors to procure the execution of the rest ; it was held that all the creditors not having executed it, the surety was not bound. 4 B. & A. 440, Johnson v. Baker.</p> <p>The same principle is recognized as applicable to a bond. 10 Mass. 445, Cutler v. Whitlemore.</p> <p>There can be no reason why it should not apply with equal or greater force to a promissory, note ; and In Í7 Mass. Rep. 605, Bean v. Parker, the Chief Justice remarks that “ a bond, or other instrument, intended to be executed by several, is not good against one alone.”</p> <p>The note was in the nature of an escrow until completed and delivered. 2 Johns. Rep. 300, Lansing v. Guiñe ; 4 Conn. Rep. 237, Huntington v. Smith ; 1 Conn. Rep. ■ 494, Shepard v. Hall. ■ :</p> <p>The face of it carried notice that the instrument was incomplete, and express notice was given to Fife, the creditor.</p> <p>Had Fife been the agent of Hill, notice to him would have been notice to his principal. Paylcy on Agency, 199 ; 4 Camp. 225, A facing v. Todd ; 13 Yesey 120, Hiemv. Mm.-- ■</p> <p>Wilds was a competent witness, his interest, if he had any, being balanced. 7 D. & E. 480, lldcrtcn v. Atkinson; 2 East 458, fíirt v. Kershav ; 1 Camp. 407, Shvttieicorth v. Stephens ; 4 M. & S. 484, Hudson v. Robinson ; 6 Pick. 419, LeavemcoUh v. Pope ; 2 Mass. Rep. 108, Cushman v. Loker; 4 Johns. 126, McLeod v. Johnston ; 1 Wendell, 115, Marshall v. Barns.</p>

Debt upon a judgment rendered by a justice of the peace in this county on the 27th September, 1819, in favor of the plaintiff, against the defendant, for $122,32 debt, and 1,60 costs of suit. The cause was tried here at October term, 1829, and a verdict taken, by consent, for the plaintiff, subject to the opinion of the court upon the following case.

This was a writ of error, brought to reverse a judgment of the court of common pleas. moved the court to quash the writ of error, because it had not been endorsed, and he cited Tidd’s Frac. 1051, and 982, note a ; 3 Greenleaf, 216 ; Clap v. Balclu

<p>In an action of covenant broken, if tbe summons, left with the defendant ⅛ the service of the writ, does not set forth what sum in damages is demanded, and for what, it is a good cause to abate the writ.</p>

<p>in the process of foreign attachment, if the trustee, in his answer, admits that money or goods of the principal came to his hands, he is to be charged, unless he clearly discharges himself.</p> <p>But if the trustee denies that he ever had in his hands any money or goods of the principal, he is to be discharged, unless it clearly appears from what he discloses, that he had money or goods of the principal in his hands, notwithstanding his denial.</p>

This was a writ of entry brought to recover a tract of land in Lime, in this county, and was tried here upon the general issue at November term, 1828. it was agreed, that one J. B. Pel ton, was once seized of the demanded premises ; and the demandant claimed the land under said Felton’s deed, dated February 23, 1827.

Case against the defendant, a deputy sheriff, for hot levying an execution in favor of the plaintiffs against Hubbard Harris and Jacob Blaisdell, upon certain goods which had been attached upon mesne process, as the partnership property of said Harris and Blaisdell.

In this case the trustee appeared, and in answer to the interrogatories put to him by the plaintiffs, stated, that in the latter part of April, 1829, he gave to L, Platt, the principal, his obligation to deliver Platt a note to be signed by E. C. Parks, for £125, payable to him the said Gibb, on the 1st January, 1330, with interest; and that he was, by the said obligation, bound to deliver said note to said Platt, within six days from the date of the said obligation ; that…

<p>This was a libel for a divorce. The alleged cause was adultery, committed by the said Rhoda on the 4th November, 1821, with one George Boardman-</p>

Assumpsit on a note for $150, made in October, 1824, by the defendant and three other persons, and payable to Caleb Knight or order, and by him endorsed. The cause was tried here upon the general issue, at November term, 1828, when the making and endorsement of the note were admitted. It appeared in evidence, that the property and interest in the note were in one J. H. Johnson.

Scire facias against the defendant, as endorser of a writ sued out by Benjamin F. Spencer, of Colebrook, in this county, against Blaisdell, the plaintiff, in this case. The cause was submitted to the decision of the court upon the following facts. Spencer sued out a writ against Blaisdell, which was endorsed by Sheafe, as alleged in the scire facias.

This was an action on the case for slander. The words alleged in the declaration to have been spoken of the plaintiff, by the defendant, amounted to an assertion that the plaintiff was a thief, that he stole a martin from the defendant’s trap, and that the defendant could prove it.

This was an appeal from a decree of the judge of probate in this county, made on the 11th June, 182S, allowing and approving, in solemn form, a certain instrument, as the last will and testament of Esther Norton.

It was disclosed in the answer of the trustees in this case, that they were indebted to Williams, the principal, but that a commission of bankruptcy had issued against Williams in England, where he had long resided and been established as a banker, on the 27th of October,. 1825, in consequence of an act of bankruptcy previously committed by him, and in pursuance of the commission so issued, the commissioners of bankruptcy assigned to 'the assignees all the property of…

Tins was a petition for partition, in winch the petitioner'alleged, that he was seized in fee as a tenant in common with W. Hazelton, S. Hazelton, and T. Hazelton, the respondents, of a parcel of land in Chester, and prayed that partition might be made.

This was an action of assumpsit. The first count was upon a special contract for the sale of a mare, by the plaintiff to the defendant. The second was a similar count for the sale of a horse. The third count was upon a promissory note, and the fourth upon an account annexed to the writ.

This was,an action of assumpsit, and was submitted to the decision of the court upon the following' facts. The writ in this case was served by one Tobias Rick-er, who had a general deputation under the hand and seal of the sheriff of this county, who had taken and subscribed the oath of office, and who had caused the said deputation to be recorded.

Debt upon a bond. The defendant craved oyer of the bond, and of the condition, which was in substance, that if the defendant should perform the award of three arbitrators, chosen by the parties to determine certain matters in controversy between them, so as the said award be made in writing, and ready on or before the first day of December, 1828, then the bond to be void, else to remain in full force, and then pleaded no award on or before the said 1st December, 1828.

TRover for a horse. The cause was tried here upon the general issue at January term, 1830, when it appeared in evidence, that one Joshua Heath had in his possession a colt belonging to the plaintiff, end exchanged the same for the horse mentioned in the plaintiff’s declaration, then died.

The writ in this case was made returnable on the first Tuesday of August, 1829, when it should have been made returnable on the third Tuesday of August. moved for leave to amend the writ, and make it returnable on the third Tuesday of August.

This was an action of trespass, for breaking and entering the plaintiff’s close, being part of lot numbered seven in Ossipee.

Case for erecting a dam across the Winnepissiogee river in Northfield, on the 1st May, 1824, and for continuing a dam across said river, higher and tighter than the defendants were entitled to do, and thus causing the water to flow back and obstruct the operation of the plaintiff’s mill. The cause was tried here, upon the general issue, at September term, 1829.

<p>Trover for two crates of crockery ware, and one crate of jogs. The cause was submitted to the decision of the court upon the following facts.</p> <p>Previous to the 8th October, 1828, Shute and Benton, partners in trade, in Concord, agreed with the plaintiff, a trader in the same place, to purchase his crockery and glass ware, including what he then had in his store, and two crates of crockery, and one crate of jugs, for which lie had contracted in Portsmouth, but which he had not received ; and it was agreed, that the plaintiff should not keep any crockery for sale for one year from that time.</p> <p>On the 8th October, 1828, the ware, which the plaintiff had in his store, was removed to the store of Shute and Benton, and charged to them in the books of the plaintiffs.</p> <p>The amount of the ware in the crates at Portsmouth was not known, and Shute and Benton were to pay the amount charged in the bills to be furnished by Taylor and Waldron, of whom the plaintiff purchased, deducting twenty-five per cent.</p> <p>On the 11th of the same October, Shute and Benton failed. But previous to that day, the plaintiff contracted with a common carrier to transport the said crates from Portsmouth to Concord. On the 13th of the same month* the earner arrived at Concord with the said crates, and his team was standing about a quarter of a mile from the stores of the plaintiff and of Shute and Benton, when the defendant, the sheriff of the county, by virtue of a writ in favor of Maine and Southgate, against Shute and Benton, with the consent of Shute and Benton, attached said crates, and has since sold them on an execution obtained in that suit.</p> <p>After said crates were attached, but before they were removed from the place where the attachment was made, the plaintiff claimed the crates as. his, and forbade the defendant to meddle with them..</p>

TROVER for a mare, saddle, and bridle. The cause was tried here at February term, 1830, and a verdict taken for the defendant, subject to the opinion of the court upon the following case. ¾ August, 1826, the mare, saddle and bridle,being the property of George Ogilvie, were, with sundry other articles, attached by his creditors.

<p>This was a libel for a divorce. The libellant alleged that she was married to the said Joseph on the 4th January, 1822, “ and that the said Joseph, without any reasonable cause, and against the consent of the libellant, willingly absented himself from her more than three years ago, and had ever since neglected to make any provision for her support and maintenanaee, although he had it in his power to do it.”</p>

Tins was a writ of entry brought to recover a tract of land in Hopkinton. As to the parcel of the demanded premises, which had been assigned to the tenant as her dower in the; estate of her late husband in the manner hereafter stated, she pleaded the general issue, and to the residue she filed a disclaimer. The cause was submitted to the decision of the court upon the following facts.

Assumpsit. The first count alleged, that the defendant, at H., on the 25th of June, 1828, by bis note, &c. for value received, promised Washington Willoughby, or the plaintiff, to pay either of them, $200 on demand, with interest. The second count alleged, that the defendant, at H. &c., by his note, &c., for value received, promised the plaintiff to pay him $200, on demand, with interest.

Debt upon a probate bond, given by Robbins, upon his being appointed administrator of the estate of John Pratt, and executed by the other defendants as sureties. After judgment for the penalty of the bond, the question was, for what sum execution should be awarded under the following circumstances. John Pratt died in 1816, intestate, leaving a widow, Hannah Pratt, who survived him only three days, and two daughters by a former wife.

Assumpsit upon a contract, made by the defendant on the 13th June, 1826, to pay the plaintiff $156,75, in neat stock, at cash price, in three years, with interest from April 1,1827.

This was an action of assumpsit on a note signed by the principals with their copartnership name.

Tins was an action of covenant broken, upon an indenture made by Joseph Fox, on the one part, and by the defendants, on the other part, by which the said Fox demised to Harvey certain lands for one year, and the defendants covenanted, that Harvey should pay to Fox as rent, $120, and surrender the possession of the lands in good order, and in tenantable repair, at the end of the year.

This was an indictment, alleging that Fletcher, on the 13th February, 1829, at Alstead, in this county, with force and arms, “ did exercise the business of a tavern-er without a license therefor in writing, first had and obtained from the selectmen of the said town of Al-stead, of which said town of Alstead, he, the said Peter, then and there was an inhabitant, and in which same town of Alstead, he, the said Peter Fletcher then resided, contrary to the form of the statute,…

Assumpsit. The declaration alleged, that the defendant hired himself to the plaintiff to labor at the blacksmith business for one year, from the 1st April, 1828, for $110, to be paid at the expiration of the year ; that he began to labor under the contract on the 2d April, 1828, and continued in the employment of the plaintiff until the 2d,May, in the same year, when, although requested to remain in the same employment, he refused so to do, but wholly left the same, whereby…

Covenant broken. The declaration alleged that the defendant by deed, dated August 20, 1823, conveyed to the plaintiffs a farm in Dublin, described as follows :— “ a certain tract of land lying in Dublin, being a part of lot numbered twelve, in the seventh range, and bounded as follows : — “ beginning at the northwest corner of said lot, thence running east on the north end of said lot to the northeast corner of said lot, — thence south thirty rods, to land owned by Joseph…

Assumpsit upon a promissory note, made by the defendant, dated April 27, 1812, for $49,37, payable to the plaintiff, or order, on demand, with interest. The cause was tried here upon the general issue, at October term, 1829, when the note described in the declaration was produced.

This was a libel for divorce, by the wife against the husband.

Case against the defendant, a deputy sheriff, for a false return. The cause was submitted to the decision of the court upon the following case.

Assumpsit upon a note for $275, dated 1st December, 1826,. made by the defendant, and payable to the plaintiff on the 1st January, 1828, The defendant pleaded the general issue, and gave notice of a set off.

This was a writ of entry, brought to recover a tract of land in Enfield, and was tried here at May term, 1829, upon the general issue, when a nonsuit was entered, subject to the opinion of the court upon the following case.

Assumpsit. The cause was submitted to the decision of the court upon the following facts. In the spring of 1828, the plaintiffs made a contract with the defendants to furnish them with a quantity of boards, to be sawed and delivered at the mills of Mills Olcott, on Connecticut river, in Lebanon, and in May, that year, brought logs to the mill to be sawed for the College. In the month of June the logs were sawed into 130,652 feet of boards, by Olcott.

Assumpsit. The first count was upon a promissory note, for $150. There was another count upon a note for $3,36. To the second count the defendant pleaded a tender of $3,55 debt, and $3,73 costs, to the plaintiff’s attorney, after the commencement of the action, and brought the same into court. To this plea, there was a general demurrer, and join-der in demurrer.

This was a writ of entry, brought to recover a lot of land in Bethlehem, in this county, and was tried here,. upon the general issue, at May term, 1829, and a verdict taken by consent for the demandant, subject to the opinion of the court, upon the following case.

Assumpsit for money bad and received. The cause was tried here at May term, 1830, upon the general issue, and a verdict taken for the defendant, subject to the opinion of the court upon the following case. The defendant, having been previously in the employment of the plaintiffs, was appointed, and acted as their agent for two years ending on the 1st November, 1828, and as such received sundry sums of money belonging to the plaintiff.

Assumpsit for money had and received. The cause was tried upon the general issue, at May term, 1830, when it appeared in evidence, that one Robert Barnet, having delivered a note for $21, payable to himself in whiskey, and made by one Rufus How to Abel Wells, to be collected, and having taken the receipt of Wells to account for the same note, sometime previous to the year 1816 delivered the same receipt to the plaintiff to secure the payment of an execution, which had issued…

Assumpsit upon a note for $800, dated July 23, 1823, and payable to the bank, on demand, with interest after sixty days. The cause was tried here upon the general issue, at May term 1830, and a verdict returned for the plaintiffs. The defendant moved for a new trial on the following case.

The court sitting this term, at Plymouth, and John Foord, a prisoner in the goal at Haverhill, in this county, having been brought into court upon a habeas corpus issued on the motion of his counsel, it was moved, on his behalf, that the execution, by virtue of which he had been committed to prison, should be set aside for irregularity, and that he should be discharged from imprisonment., It appeared, that at the November term of this court here, 1829, John S. Wright…

Assumpsit. It was alleged in the declaration, that the defendant, at R. on the 29th November, 1826, by her note or memorandum, in writing, under her hand of that date,’ for value received, promised the plaintiffs, to pay them $171,66, whenever they should settle their father’s estate, or sooner, provided said Martha’s share in the personal estate of her late husband, would not pay one third of the demands against the estate of the said husband.

This was an action of trespass. The first count was for taking and carrying away on the 11th June, 1825, a quantity of pine boards. The second count was for taking and carrying away, on the same day, a quantity of pine boards lying in a certain close in Kingston, called the mill-yard, which was particularly described in the declaration.

Assumpsit upon a promissory note brought by the en-dorsee against the maker.

Debt upon a judgment rendered in the court of common pleas in this county, January term, 1815.

This was an action of assumpsit brought by the plaintiff to recover the personal estate bequeathed to her by the will of her deceased husband, Walter Weeks. It was agreed between the parties that Walter Weeks made his will, bearing date the 21st May, 1825 ; that the said will had been duly proved and allowed, and that the defendant had accepted the trust of executor.

This was a petition for partition of a saw-mill privilege. Judgment was rendered in the cause at a former term, that partition be made, and a committee appointed in pursuance of the statute to make partition. The committee made a report, at August term, 1829, assigning to the petitioners severally, distinct parcels of the land belonging to the mill privilege, described by metes and bounds ; and a certain part of the water to be taken by gates of a certain dimension.

Assumpsit upon a promissory note, dated August 4, 1828, for $30 payable to Miles Burnham and Noah Burn-ham, or order, and by them endorsed to the plaintiff. The cause was tried upon the general issue, at August term, 1830, and a verdict taken by consent for the plaintiff, subject to the opinion of the court, upon the following case.

This was a writ of certiorari commanding1 two justices of the peace, in this county, to certify their doings upon a certain process of forcible entry and detainer, had before them upon the complaint of John Crocker against Benjamin Lord.

This was a writ of entry. The action as commenced on the 5th January, 1829. At August serai, 1830, the demandant having deceased since the last continuance, J. Lawrence, the administrator of the demandant’s estate, moved the court to be admitted to prosecute the suit, to which the tenant objected.

This was an action of trover for four steers, in which the plaintiff sued as administrator of the estate of Joseph Giles, deceased. - . - . , The cause was tried upon the general issue, at January term, 1830, and a verdict taken by consent for the defendant, subject to the opinion of the court upon the following case. The intestate died in September, 1828, leaving some properly, and owing several debts.

Assumpsit for work and labor. The cause was tried here at August term, 1830, upon the general issue, and a verdict taken by consent for the defendant, subject to the opinion of the court upon the following case.

This was art action of covenant broken. The defendant craved oyer of the writ, and return of the sheriff, and had it, and then prayed judgment of the writ, because he says that by virtue of if o writ aforesaid his estate is attached, &c. and that the summons left by the said officer serving said writ, and the same by him mentioned as having been left with him the said Perley, in Ills return above set forth, is in the words andfigures folio wing,’(here the'summons was set…

<p>In debt upon an arbitration bond, the defendant pleaded no award made within the time limited in the condition of the bond* To this tbe plaintiff replied that the parties, by deed, subsequently to the time of making the bond, agreed to extend the time for making the award, and set out an award made within the extended time — it was held upon demurrer that the replication was good.</p>

Assumpsit for the support of Deliverance G. Hoit, a pauper, alleged to have her settlement in the town of Orange, from 14th September, 1827, to the 5th December, in the same year.

Assumpsit on a note for ⅜380, dated June 2G, 1826, payable to Peter Smart, or order, and by him endorsed to the plaintiff. The cause was tried upon the general issue, at September term, 1830, when it was’ admitted that the note was made and endorsed, and that the same was transferred to Peter Elkins, whose property it remained. There were several sums endorsed upon the note, the last of which was under the date of August 16, 1826.

<p>This was an action of covenant broken, in which the plaintiff alleged that the defendant, by his deed, dated the 21st February, 1820, conveyed to the plaintiff a tract of land in Washington, and by the same deed covenanted with the plaintiff that he was lawfully seized in fee of the premises, and that the same premises were free from all incumbrances.</p> <p>The alleged breach of the covenants was, that on© Daniel McClintock, on the 31st December, 1811, was lawfully seized of the said premises, having a good riglit and perfect title to the same, and that on the 21st February, 1820, the defendant disseized the said Daniel, and at the time of executing the said, deed to the plaintiff. had not, and ncrer had, any title to the premises, but by the said disseizin, so that the right of the said Daniel to have the land was an incumbrance.</p> <p>The defendant, in his plea, alleged, that on the 1st February, 1815, the said Daniel MeClintock, being seized, by deed, which had been lost by time and accident,, conveyed the premises to the defendant in fee, and traversed the disseizin of the said Daniel by the defendant. And issue was joined upon the traverse.</p> <p>There was another plea, in substance, the same as the first, with this difference only, that the deed in the last plea was alleged lobe in the hands of the plaintiff as an excuse for the want of a proferí. The issue joined between the parties was the same as the issue above stated-</p> <p>The cause was tried at September term, 1830.</p> <p>It having been shown, by the defendant, that a deed was given to him by Daniel MeClintock, the court received the testimony of the defendant, that the same deed went into the hands of the plaintiff when the defendant conveyed the land to the plaintiff. The defendant stated that before he gave the deed conveying the land to the plaintiff, he delivered to the plaintiff the said deed of Daniel MeClintock, to enable the plaintiff to make out a deed to be executed by the defendant, and that when the defendant executed the deed, the plaintiff retained Daniel’s deed for the purpose of procuring it to be recorded ; that he afterwards saw Daniel’s! deed in the defendant’s store, but had not been rble to obtain it from the plaintiff.</p> <p>The plaintiff, being also admitted to testify, stated that no such deed was ever delivered to him, nor to his recollection ever seen by him.</p> <p>The court being’ satisfied that the deed was either in the hands of the plaintiff, or lost, permitted the defendant to prove the contents of the deed by parol evidence.</p> <p>It appeared that the same deed was never recorded.</p> <p>The only question submitted to the jury was, whether there existed, before the 21st February, 1820, a deed from Daniel MeClintock conveying the land to the defendant. The jury having found that there was such a deed, a verdict was entered for the defendant, subject to the opinion of the court upon the foregoing case.</p>

This was a writ of error to the court of common pleas. It appeared that the plaintiff in error, brought ⅝11 action against Philbrick, and alleged in her declaration, “ that the said Philbrick, at W. on the 3d February, 1823, in consideration that the plaintiff then and there delivered to the said Philbrick, at his special request, an account which was then lawfully due in favor of the plaintiff, against one Charles Greenfield, of the value of $7,50, to be carried and…

This was an action of debt upon a bond given By the defendants, Levi Jones, M. D. Langdell, and William Bruce, to the plaintiff, the sheriff of this county, dated July 10, 18,28, in the penal sum of f400.

This was an action of trespass tie bonis asporiatis, and was tried upon the general issue, at September term, 1830. It appeared in evidence, that the plaintiff was seized and possessed of a farm in Milford, which he put under the care of Mehemiah Haywood, in April, 1824.

This was an indictment, in which it was alleged that Carr, cn the 17th February, 1829, with force and arms, at Amherst, in said county of Hillsborough, feloniously and fraudulently, did utter, publish and pass in payment, as true, to one Perley Dodge, a certain false, forged and counterfeited bank note, falsely made, forgecl and counterfeited, in imitation of, and purporting to be, a bank note, issued by the president, directors, and company of the Mechan ick’s Bank, which…

Assumpsit. The declaration alleged, that on the 26th March, 1826, the plaintiff conveyed to the defendant, a tract of land in Winchester, in this county, in fee… Held: in courts of equity, that the statute does not apply. And there may be cases, where a court of law, in the absence of a court of equity, might sustain an action for money had and received, to recover back any money paid under such a contract, or an action for work and materials, where repairs had been made.

Assumpsit on a note made by the defendant, and payable to Mrs. Steele, when sole, dated January 7, 1824, for $¡81,36, on demand with interest. Plea, usury.

<p>Assumpsit. The first count was upon an order not accepted, drawn by the defendant, in favor of the plaintiff, upon Nathan Whitcomb, & Company.</p> <p>There were also counts for money had and received, and for money lent.</p> <p>The cause was tried here, upon the general issue, at October term, 1830, when the plaintiff produced a note made by Nathan Whitcomb, & Company, dated May 1, 1828, for $437,50, payable to the defendant, or bearer, in one year, and endorsed “ Luther Abbott to Luther Whitney.” It appeared in evidence, that the defendant being indebted to the plaintiff, the latter agreed, in the summer of 1828, to receive the said note in payment, provided the defendant would endorse it. And thereupon the defendant endorsed it as above stated, and passed it to the plaintiff.</p> <p>Whitcomb & Company failed in 1828, soon after the note was delivered to the plaintiff.</p> <p>On the 4th April, 1829, the defendant told the plaintiff that he, the plaintiff, should have no trouble about the note, that he, the defendant, would pay it ; that it should be paid, and that he was going to his brother to procure the money to pay it.</p> <p>In the latter part of May, 1829, the plaintiff told the defendant that if he would give his note for the amount it would save the plaintiff a journey to Rockingham, where Whitcomb & Company lived. The defendant asked how long the law would give the plaintiff to call upon Whitcomb & Company ? To which the plaintiff answered that any time that month would do.</p> <p>After the writ in this case was served upon the defendant, he offered to give his note for the amount, if the plaintiff would wait a year. And he afterwards said that he had made arrangements to pay soon, but as he was sued, the jury must settle it, as the plaintiff had not gone according to law.</p> <p>A verdict was taken by consent for the plaintiff, subject to the opinion of the court upon the foregoing case.</p>

This was a writ of error brought to reverse a judgment of the court of common pleas in this county. It appeared by the record in the court below, that Truce brought an action against Rowell, and declared against him “ in a plea of the case for that the said Blood, to wit, at said Haverhill, on the 18th October, 1829, by his promissory note, under his hand, of that date, for value received, promised the plaintiff, to pay him, the sum of $20, in goods,at Brewer’s store.

This was a writ of error, brought to reverse a judgment of the court of common pleas in this county. It appeared by the record of the proceedings in the court below, that the plaintiff in error sued out a writ from the office of the clerk of the court of common pleas in this county, returnable at the October terra of the same court, 1827, in which writ he inserted a declaration upon a promissory note.

<p>Where a canse has been submitted to referees by a rale of court, and the parties have agreed to have the report made known and the case settled at the time of the hearing before the referees, the court will not recommit the case to the referees on the ground, that since the hearing, new evidence ha® been discovered.</p>

This was an action of trespass for breaking and entering the house of the plaintiffs, in New-Chester, on the 28th September, 1828, and pulling down and demolishing the same.

Tins action wag commenced in the court of common pleas, and while the action was pending in that court, the following agreement was written and signed on the bacV of the writ : s'£ Grafton, ss. G. C. Pleas, September Term, 1829. J, Pike v. J. Emersos. In tins ease, it is agreed, that the judgment of this court, in this cause shall be final and conclusive if against the plaintiff, he hereby waiving his right of appeal, &.c, (Signed) Ilf T. Hadduck, for the plaintiff.

<p>Where an action was brought upon a note of hand, given to secure a sum of money, which had been reserved over and above lawful interest upon a loan, it was held that a plea of usury, which the defendant offered to verify by his own oath, was a good answer to the action.</p>

<p>W t'B-v ti Lo. j m a, lottery, rot authorised by any law of this state, or of the i i» a'd Fíale-, were' sent by a person residing in another state, to an agent ¡t fuk rnite, to sell, it was held, that as the sale of such tickets in this 'tare A -si ityful, no action could be maintained, by the person who seat 'he hekety against the agent, to recover the money the latter might have o' v.Ke.1 bv a sale of the tickets.</p>

<p>In process of forcible entry and detainer, where the warrant was made returnable on the same day when it issued, it was held to be irregular.</p> <p>And if in the service of the warrant, in such a ease, the body of the respondent be not arrested four days before the day of trial, a copy of the warrant must be left at the usual place of abode of the respondent four days before trial, otherwise the service will be adjudged irregular.</p>

This was an action brought against Bosworth. as the trustee of John Poord, and the Plaintiff having elected to try the question whether the trustee was chargeable by n jury. moved the court for an order upon the plaintiff to file a specification of the grounds Upon which he sought to charge the trustee.

This was an action on the case for enticing away N. W. Tucker, an apprentice of the-plaintiff on the 21st January, 1823.

Debt. “ For that the defendant, at Columbia, in said county, on the 29th November, 1825, joined in marriage S. J. Brown, then in Stratford, in said county, and Caroline Bishop, then of Columbia, in said county, without certificate under the hand of the respective clerks of the towms, in which they then resided, of publishment of their intentions to he joined in marriage, &c. contrary to the act, &c. whereby, &e.” The cause was tried upon the general issue, at No* vernber…

Covenant broken. The plaintiff alleged in his declaration, that the defendant, by deed dated May 24,1822, conveyed to the plaintiff “ the following lots of land lying and being in Bethlehem — to wit, lot No. 33, in the 11th range, and lot No. 27, in the 1-lth range, containing one hundred acres each, being the same land deeded to James Chamberlain, junior, by Stephen Lane, February, 1801/’ and covenanted with the plaintiff that he, the said Joseph, was the lawful possessor…

Assumpsit for work and labor. The cause was tried here, at May term, 1830, upon the general issue, when it appeared in evidence, that the defendant, being indebted to the plaintiff in the sum of §100, for work and labor, requested the plaintiff to take the note of a son of the defendant, for the said sum of §100, the son being then a minor, under the mge of twenty-one years.

<p>Where the records of a deceased justice of the peace have been lodged with a clerk of the court of common pleas, such clerk may, from the minutes made by the justice in his docket, enter up judgment in the same manner that judgments in the common pleas are entered up from minutes kept by the clerk of that court.</p>

Debt upon a probate bond. The defendants craved oyer of the bond and the condition, and then pleaded performance of the condition.

This was a writ of entry. The cause was submitted by a rule of this court to referees, who made a report, signed by two of the referees, and put on file with the clerk of the court, on the 8th January, 1830. But the report was afterwards taken from the files and lost. A copy of the report was, however, taken, before it was put upon file, which was proved by the person who made it, to be a true copy.

Tins was a writ of entry brought to recover a tract of land in Seabrook. The cause was tried here, upon the general issue, at August term, 1830, when it appeared in evidence, that on the 8th September, 1820, one Collamore being seized of the premises as tenant for his own life, the remainder in fee being in Ezekiel Morrill, and Susannah his wife, in her right, the said Ezekiel and wife, by deed, conveyed to the demandant all their interest in the land.

This was a writ of entry, in which the demandants counted upon- their own seizin of a tract of land in Portsmouth, and upon a disseizin by the tenant, and was tried here, upon the general issue, at January term, 1831, and a verdict returned in favor of the demandants.

This was an action on the case against the defendant, late the sheriff of this county, for the neglect of Joseph Aker man, one of his deputies, to serve and return an execution obtained by the plaintiff against one Jonathan Wiggin. The cause was tried here, at January term, 3 8.80, upon the general issue, and a verdict taken for the defendant, subject to the opinion of the court upon the following case.

This was a writ of entry, brought to recover a tract of land in Chester, and was tried upon the general issue at January term, 1830, when a verdict was taken by consent for the demandant, subject to the opinion of the court upon the following case. James Wason, junior, died seized of the demanded premises.

Assumpsit for money paid, laid out, and expended. The cause was tried here upon the general issue at January term, 1831. It appeared in evidence, that one Simon Ferrin was desirous to borrow, at the Derry bank, $50, and applied to the plaintiff and defendant to be his sureties.

Assumpsit for services performed by the plaintiff, as a deputy sheriff, for the defendants. The cause was tried here, at August term, 1830, upon the general issue.

This was a writ of entry brought to recover a tract of land in Moultonborough. The writ was tested the 19th January, 1829. As to sixty-four acres, parcel of the demanded premises, the tenants pleaded the general issue, and as to the residue, they pleaded a disclaimer. The cause was tried at January term, 1831, and a verdict taken by consent for the demandant, subject to the opinion of the court upon the following case.

This was an action of trespass for taking and converting to the defendant’s own use, a cow of the plum till, on the 4th August, 1828, and was tried here, at January term, 1831.

This was an action upon the case against the defendant, a deputy of the sheriff of the county of Essex, in the state of Vermont, for not returning an execution, in favor of the plaintiff, against one T. S., returnable to the county court of the said county of Essex, and which had been delivered to the defendant to be served and returned. There was a demurrer to the declaration and joinder in demurrer.

This was an action of assumpsit upon an. order drawn upon the defendant by Maxey Robbins, in favor of the plaintiff, and accepted by the defendant. The cause was tried upon the general issue, at February term, 1831, and a verdict taken by consent for $30, subject to the opinion of the court upon the following* case.

This was a writ of entry, brought to recover a tract of land in Allenstown. The action was commenced on the 10th December, 1828, and was tried upon the general issue, at September term, 1830. The demandant introduced evidence, tending to prove that Thomas W. Thompson was seized in fee of the demanded premises.

This was an action of trespass for an assault and false imprisonment. The defendant justified under legal process, as a collector of taxes for the town of Fishersfield. The plaintiff replied, that the arrest was made on the 11⅛ day of April, 1830, which was the Lord’s day ; and issue was thereupon taken.

This was a petition founded upon an act in addition to the act incorporating the said company.

This was a libel for a divorce. The libellant alleged, that on the 17tli June, 1818, being sole and unmarried, and called Elizabeth Cotton, of Portsmouth, in the county of Rockingham, she was lawfully joined in marriage, by the Reverend Paul Dean, with Joseph White : that she had at all times, since their intermarriage, as aforesaid, treated the said Joseph in a faithful and affectionate manner, and in all respects observed and kept the marriage covenant.

This was a writ of error to the court of eomraon pleas. The plaintiff in error brought an action of assumpsit in the common pleas, and obtained a verdict, but the court arrested the judgment. The cause was brought here by a writ of error, and the order of the common pleas arresting the judgment reversed.

This was a writ of dower, brought to recover the dower of the said Sophia, in three parcels of land, of which Josiah Moore, junior, her late husband, was alleged to have been seized during the coverture. The cause was submitted to the court upon the following case. Josiah Moore, junior, the husband of the demandant, was seized during the coverture of two of the parcels of land described in the writ.

This was an appeal frena a decree of the judge of probate, in this county, allowing the account of James Chandler, as administrator of the goods and estate of Gilbert Griswold, deceased. The appeal .was taken by some of the heirs of the deceased. An auditor had been appointed to examine the account, who made a report, in which he stated all the matters in controversy between the parties, and all the evidence upon which they relied, in this case.

<p>The estate of John Follet was administered in the insolvent course, and this was art appeal from a decision of the commissioner, rejecting the plaintiff’s claim against the estate.</p> <p>The declaration filed by the plaintiff, according to the direction of the statute, was as follows :</p> <p>For that the said John Follet, at said Keene, on the 13th April, 1798, by his note of that date, by him subscribed, for value received, promised the plaintiff, to pay him or his order, the sum of $122,11, at the decease of of the wife of the said John Follet. And the plaintiff avers that the said wife of the said John Foliet is still in full life, and that during the pendency of the commission of insolvency upon the estate of the said Follet, he presented the said note to the commissioner, duly appointed to receive, examine and allow the claims against said estate ; and that it was the duty of the said commissioner to have allowed the said note, according to its just value, yet the said commissioner refused to allow the same, by reason of which an action has accrued to the plaintiff, to have and recover the same.</p> <p>To this declaration there was a demurrer, and joinder in demurrer.</p> <p>relied upon Eaton v. Whitaker, 6 Pick. 465.</p> <p>The demand, in this case, is not yet due. When the parties have made their contract, they are bound, and must abide by it, and the legislature have no more power to authorize commissioners to allow a demand not due, than they have to authorize a suit and judgment on a demand not due, in the life time of the promissor.</p> <p>This would alter the contract on a certain contingency, to wit, the death of the promissor ; and the legislature might as well extend the credit a year, as to make a demand payable a year, or any other time, previous to the period on which the parties have agreed-</p> <p>If the legislature possessed such power, the statute of 1791, which was in force when this contract was made, gives no such authority, and the statute of 1822 cannot be applied to this case, for that would be to give it a retrospective operation. It would create a new obligation, and impose a new duty. On this point, we refer generally to 3 N. H. Rep. 473, Woart v. Winnick; 2 Gallison, 105 ; 7 Johns. 502 ; 6 ditto, 101 ; 3 Dallas, 391.</p> <p>The commissioner further considered, that this was a demand payable on a contingency, and therefore not within the last statute, even if it had been made since that statute was passed.</p>

The trustee, in this case, stated in his answers to the interrogatories put to him, that after the failure oí George C. Dean and company, George C. Dean being arrested upon three writs, which had been sued out against the company, the trustee, on the 25th June, 1829, became his bail, as an indemnity for which, said Dean placed in his hands sundry notes of hand, signed by sundry persons.

This was a writ of error, brought to reverse a judgment of the court of common pleas.

This was a writ of entry, in which the demandant counted upon his own seizin of the two hundred acre lot of land, No. 2, in the northeast division of two hundred acre lots, in Springfield, in this county, and upon a dis-seizin by the tenant. The teste of the writ was the 29th March, 1828.

The trustee in this case, stated in his disclosure, that having in his hands, as a deputy sheriff, an execution against W. T. H. in favor of the said A. W. Morse, for $34,09, he, on the 28th September, 1830, received as a deputy sheriff, the contents of the said execution, and discharged the same ; and that immediately afterwards, the writ in this case was served upon him.

This was an action of trespass for breaking and entering the plaintiff’s close, in Haverhill, in this county, and was tried here upon the general issue, at May term, 1830, and a verdict taken by consent, for the defendant, subject to the opinion of the court upon the following case. Joseph Hutchins, on the 25th May, 1801, was seized of a tract of land in Haverhill, of which the locus in quo is parcel, lying adjoining to Connecticut river.

<p>When a sheriff has attached goods by virtae of mesne process, he mast, its order to preserve the attachment, retain the possession of the goods. And if he, or any person, to whom he may deliver the goods for safe keep- •’ ing, permit them to return to the possession of the debtor, the attachment is, with respect to other creditors, ipso facto dissolved.</p>

Assumpsit for use and occupation. The cause was tried, upon the,general issue, at May term, 1831, and a verdict taken for the plaintiff, subject to the opinion of the court upon the following- case.

This was a petition for a new trial. It appeared that Riley commenced an action upon a promissory note in the court of common pleas, in this county, at February term, 1828. Emerson appeared and pleaded the statute of limitations, to which Riley replied, that there had been a promise within six years, and upon this, an issue was joined.

This was a writ of entry and was submitted to the decision of the court upon the foregoing facts. One John Brown, being seized of the demanded premises, on the 4th May, 1827, conveyed the same to Gordon Burley, who afterwards gave Brown a bond to re-convey the land upon the payment $200.

This was a writ of entry, brought to recover a tract of land in Bath, in this county, and was tried here, upon the general issue, at May term, 1830. It was agreed, that Samuel Austin was once seized of the demanded premises. The demandant claimed the land, under an extent, by virtue of an execution in his favor against Samuel Austin.

Fisk, the trustee in this ease, disclosed, in his answers to the interrogatories, that lie and Joab Hunt had the use of a brick yard, belonging to C. Hunt, the principal, during the summer of the year 1829, for which they agreed to pay to the said Caleb Hunt the sum of §70, in bricks ; which sum still remains due and unpaid ; that the trustee, at the close of the summer of the year 1829, purchased all the right of the said Joab Hunt in the bricks, which they had made in the…

<p>Assumpsit. An auditor had been appointed to state the accounts between the parties, who made a report subject to the opinion of the court upon the following question.</p> <p>The plaintiff, to support a part of his claim against the defendant, called Josiah Little, who, being interrogated by the defendant, stated, that the demands described in the declaration had been assigned to his father, as collateral security for a debt due from the plaintiff to the father, who resided in Massachusetts, and had since deceased ; and that the witness was the administrator of his father’s estate in Massachusetts, and one of his heirs at law. But the witness produced a release in the following form.</p> <p>“ Know all men by these presents, that I,Josiah Little, do by these presents release and discharge all claims which I may have as heir at law of my father’s, Josiah Little’s, estate, to any sum or sums, which maybe Recovered in the action, John Webster v. Richard Ela,” &c.</p> <p>And the question was, whether the said Josiah Little was a competent witness for the plaintiff?</p>

This was an action of debt, upon a bond made by -'he defendant and others, on the 3d October, 1828, wit!' a condition, that if Charles Miner, then a,prisoner in Re gaol,in Charlestown, in the county of Sullivan,at the >i: of the plaintiff, should continue a true prisoner, u . lawfully, discharged, then Alie bond to be void. A iw cause was submitted to the decision of the court, upon the following facts.

Trover for a yoke of oxen. The cause was tried at November term, 1830, upon the general issue, and a verdict taken, by consent, for the plaintiff, subject to the opinion of the court upon the following case.

The indictment in this case alleged, that the respondents, ,pn the 4th June, 1829, in the night time, with force and arms, two window sashes and fifteen squares of glass, of and belonging to the dwelling house of A. B. with a large stick of wood and with stones, injuriously, wilfully and maliciously did break and destroy, and did violently, injuriously, wilfully and maliciously cast and throw stones at, inte, and against, said dwelling house, and greatly damage the same, to…

Assumpsit upon a note for $460, dated January 31, 1829, made by the defendants, and payable to one G. Towle, or order, and by him endorsed to the plaintiff. The cause was tried here, at August term, 1831, upon the general issue. The making and the endorsing of the note were admitted by the defendants. The defence was, that the consideration of the note was illegal.

Assumpsit upon a promissory note, made by the defendant, dated February 25, 1824, for $162,84, payable to one Abraham Tilton, or his order, and by him endorsed to the plaintiff. * The defendant pleaded in bar, that there was reserved in the note, upon a corrupt agreement between him and the said Tilton, who is still living, unlawful interest, three times the amount of which exceeded the sum lawfully due upon the note, and offered to verify his plea by his oath.

<p>Assumpsit for money had and received. The cause had been referred to an auditor, who reported that the plaintiff offered in evidence a note made by the defendant, for $42,03, payable to R. C. or order, and by R. C. endorsed to the plaintiff, and the question was, whether the note was evidence to maintain the count for money had and received ?</p> <p>relied upon the following cases. 4 Pick. 421, Wild v. Fisher; 15 Mass. Rep. 331. Board-man v. Gore; 12 Johns. 90, Pierce v. Crafts; 12 Mass-Rep. 112, State Bank v. Hurd.</p>

Assumpsit on a note, dated January 22, 1828, by which the defendant and J. B. jointly and severally promised the plaintiff, to pay him, or order, for the use of the town of Raymond, $365, in thirty days, with interest. The case was tried at August term, 1831, upon the general issue, and a verdict taken, by consent, for the plaintiff, subject to the opinion of the court upon the following case.

Assumpsit for a legacy. The cause was tried'here, upon the general issue, at August term, 1881, and a verdict taken for the plain tiff’, subject to the opinion of the court upon the following case. Benoni Gordon, the defendant’s testator, made his will on the 25th May, 1817, and in December, 1823, died. The defendant caused the will to be duly proved and allowed in the probate court.

In this case, the trustee disclosed in his answers, that on the day, when the writ was served upon him, he was indebted to the principal, Folsom,; in the sum of $22,07, that being the balance of Folsom’s accountjagainst bim ; but that, on the 9th December, 1829, and ¿before the commencement of this suit, Folsom ¡had sued out a writ against him for that balance, and the same had|been duly servfed, which action of the said Folsom against him was still pending.

Trotee for a chaise and harness. The cause was tried upon the general issue, at January term, 1831, and a verdict taken by consent, for the plaintiff, subject to the opinion of the court, upon the following case. One N. V. Whitehouse, being the owner of said chaise and harness, and various other articles of personal property, and being indebted to the plaintiffs, transferred the same to the plaintiffs, for their benefit as creditors.

In this case, the writ had been sued against the defendants by the name of “ the president and trustees of the savings bank for the county of Strafford.” moved for leave to amend the writ, by striking out of the name given to the corporation, the words “ the president and trustees of.”

This action was tried here at August term, 1830 ; and the jury having returned a verdict in favor of the defendant, the plaintiffs moved the court to grant a new trial. The first ground on which the plaintiffs rested their motion, was, that certain depositions were read to the jury, which ought not to have been admitted, and to the reading of which, the plaintiffs objected.