Volume 50 — New Hampshire Reports

Indictment against Joseph B. Morse for obstructing a public high-' way. The following case is agreed upon for the purpose of raising questions of law. A copy of the record of the laying out of the highway in question marked “A” is annexed and made a part of the case. No petition for said laying out is on record, and there is no evidence of the existence of any such petition.

<p>A suit was brought against two defendants and service made on both, but by mistake the action was entered against one only, and the auditor’s commission followed the entry. At the trial before the auditor the cause was opened against both, the trial proceeded against both without objection, and the report was in favor of both. Afterwards the Court allowed the entry and commission to be amended by inserting the name of the other defendant, and upon exception it was held that the amendment was properly allowed.</p>

Motion by defendant in Stephen H. Cummings and Oren H. Boynton v. Benselear Tute, to recommit the report of a referee, or to discharge the rule of reference.

<p>Petition of Sarah W. Whitcher for the assessment of damages occasioned by the laying out of a highway in the-town of Benton.</p> <p>The commissioners in their first report found that the damages were fully offset by the advantages to the petitioner, and awarded no damages. The report stated that the parties agreed at the hearing that the decision of the commissioners should be final. The report having been recommitted with instructions to report more specifically, the commissioners made an additional report, in substance as follows:</p> <p>“ We find the damage sustained by the petitioner by reason of the laying out of said highway, making no deduction or offset on account of benefits resulting to the petitioner, to be four dollars and fifty cents. We find the following special and peculiar benefit to the petitioner to have been caused by the laying out of the highway, to wit: an opportunity or facility afforded by the highway for opening a new way for timber and lumber from the tail of the petitioner’s saw-mill over the petitioner’s land to said highway, which benefit to the petitioner we find to be of the value of thirty-seven dollars and fifty cents; and we did not take into consideration any other advantage that may result to the petitioner in consequence of the laying out of the highway aforesaid.”</p> <p>The petitionee paid the commissioners’ fees on both reports.</p> <p>The Court ruled pro forma that the petitioner was entitled to recover four dollars and fifty cents damages, but no costs; also, that the petitionee recover of the petitioner the fees paid to commissioners, and that judgment be rendered in favor of the petitionee for the balance of said fees after deducting said damages. Both parties may be regarded as excepting to these rulings.</p> <p>The case and all questions of discretion were reserved.</p>

Petition by S. C. Baker and others for a highway in Ashland. Portions of the petition are as follows : “Your petitioners represent that, for the public accommodation, there-is occasion for a new highway in the town of Ashland, in said county, beginning at a stake and stones in the highway in front of the dwelling-house of Edwin E. Bailey, thence easterly across Squam river to a stake in the highway opposite the hrick school-house in district No. 1.

Complaint made by the selectmen of Littleton, under the bastardy act, against Jackson M. Ferry, to a justice of the peace for the county of Grafton, alleging that one Sally Gordon, of Littleton, on the 1st of April, 1869, was delivered of a child which is living and is a bastard, and is chargeable to Littleton; and that the said child was begotten on or about July 1st, 1868, by Jackson M. Perry, of Concord, Vermont; and that the said Sally Gordon refuses to make complaint…

<p>The fact that a town agent for the sale of spirituous liquors is made liable to a penalty for purchasing liquors of any other person than a State liquor agent, after notice to him by the governor of the appointment of such State agent, does not make a sale of liquors to such town agent, by a person not a State agent, criminal, illegal, or void.</p> <p>The penalty being levelled only against the town agent for his own remissness in duty, the law does not place the party selling to such town agent, though not being a State agent, in pari ddicto, but he may recover pay of the town for the liquors so sold, if the sale was legal in other respects.</p> <p>If the town agent was induced, by the false representations of the seller that he was a State agent, to purchase of him, the town, on discovery of the fraud, may rescind the contract, if done in reasonable time, by restoring or offering to restore what they have received under it; or, they may ratify and confirm the contract.</p> <p>If goods are purchased by sample at an agreed price, and on delivery they are found to be of inferior quality to those bargained for, the purchaser may return the goods and rescind the contract; or, he may keep the goods, and, in an action for the price, may show such inferiority in reduction of damages, and have judgment against him for the real value of the goods only.</p> <p>The secretary of State may make copies of records or papers in his office, and his certificate, under the State seal, will be evidence of the verity of such copy; but it is no part of his official duty to certify facts; and his certificate of the existence of any fact, even though under the State seal, will not be competent evidence, except of the single fact that the paper so certified is a true copy of the original on file.</p> <p>A verdict rightly found on most points, but erroneous on one point only, need not be. wholly set aside, but a new trial will be granted on that point where there was error before.</p>

Assumpsit, for support of a pauper. Yerdict for the plaintiff, and motion of the defendant for a new trial. The plaintiff claimed for supplies furnished from March 13,1867, to January, 1868. No written notice was served on the defendant before Feb. 7, 1868. Writ dated Dec. 10,1868. It was alleged in the declaration that written notice had been given.

Petition, by A. J. McClure and others,'for a new highway in Groton and Rumney. The petition having been filed, an order of notice was issued by the clerk of the court, who sent to McClure a copy of the petition and order duly attested by the clerk. McClure, who was not an officer, gave to the town officials a copy of the clerk’s copy, adding to the clerk’s attestation, — “ A true copy of the original.

In Equity. The questions arise upon demurrer to the bill. . The defendants are the White Mountains (New Hampshire) Railroad; the trustees under the mortgages to secure the bonds of the White Mountains Railroad; the holders of said bonds ; and The Boston, Concord & Montreal Railroad, lessees of the White Mountains (N. H.) Railroad.

In Equity. The questions arise upon demurrer to the bill, brought by White Mountains Railroad against Bay State Iron Company and B. T. Reed.

Assumpsit by John C. Aldrich against John Hagan. The writ was dated April 2, 1869. The only evidence offered by the plaintiff was a note for $200, dated Dec. 18, 1868, payable to the plaintiff or bearer, on demand, with interest annually. It appeared that the note was not stamped until Dec. 19, 1869, when it was duly stamped by the collector of internal revenue, and the penalty remitted.

Case, Edwin Samson against Albert P. Young, for debauching and carnally knowing tbe plaintiff’s wife.

Assumpsit by Greenough D. Sanborn against Thomas Murphy. The action was referred to arbitrators under a rule of court. Their report being made to the court, the defendant moved to set aside and recommit the award. The facts of the case are disclosed in the opinion of the court.

<p>Assumpsit, for services in hauling wood to the railroad station at Warren Summit, in Feb., 1869. The return showed an attachment, March 30th, 1869, of certain wood near Warren Summit, “ it being to secure a lien upon the same.” Plea, the general issue.</p> <p>It was agreed that the wood attached belonged to the defendants; that one Fifield contracted with the defendants to haul the wood to Warren Summit; that Fifield employed the plaintiff to haul it, and that the plaintiff did haul it; that the defendants did not expressly or impliedly contract with the plaintiff, (unless such contract can be implied under section 14, chap 125, Gen. Statutes,) and that the defendants did not, either expressly or impliedly, authorize Fifield to bind them to the plaintiff. The plaintiff based his claim to recover, solely upon the statute above referred to. Subject to exception, the court, pro forma, directed a verdict for the defendants.</p> <p>Motion to set aside the verdict.</p> <p>Sections 14 and 15, chap. 125, General Statutes, are distinct from and have no connection with sec. 11 of the same chapter, and its construction must be independent of sec. 11. It was enacted at a different time, and for a different purpose and object. In the title and act of 1866, when the provision was made from which section 14, as it now stands, was derived, and for which it was substituted, no reference was made to the act of 1861, — that is, section 11, — by way of amendment or otherwise. The commissioners, it seems, saw fit to énlarge the act of 1866 by extending its provisions to wood and bark. Section 14 standing thus, as a distinct provision, it is immaterial who the contracting parties may be. The object in this provision was to secure the workman for his personal services, and put the party on whose property the labor is performed upon his guard so that no wrong or injustice shall be done to the laborer; and to this end, pledges the property wrought upon to the laborer, for his payment, to such an amount as he may prove himself entitled. If the amount of the price of the labor is not agreed upon by the workman and the owner, who is the only one obligated to pay the bill, in order to discharge the lien, then it must be adjudicated ; and in the adjudication the owner must be a party. None but the owner and workmen are interested in the adjudication. No one but the owner is interested to redeem the property. No one but the owner and workman is interested in the question whether any services at all have been performed by the claimant. All these interests are with the owner, and before the property can be finally disposed of the owner may be heard in some form of procedure or other. The obligation and liability of the owner arises or is created upon the performance of the services, and continues for a limited time, within which an attachment must be made or the liability of the owner ceases. This statute creates a liability of the owner to the party performing the services. If a liability to pay money arises, then is there not an implied promise to pay? If so, then is not assumpsit the proper remedy tp enforce the payment ? If the amount is not paid, the defendant takes the consequences of a levy on his property, which, however, he may redeem before sale on execution by the payment of the claim. The property is pledged to him as a security to respond a judgment, and may be held by the workman, against the rights or power of the owner to dispose of it before attachment, the attachment being made within the proper time. This lien is not in the nature of a penalty or forfeiture, and the remedies and mode of procedure prescribed in such cases are not required here. The workman’s lien and the owner’s liability are simultaneous and run together: the right is secured and the liability continued by attachment. In order that an attachment may be made, there must be a process, and, in cases of this character, an original process.</p> <p>The process raises an issue in some form or other between the workman (claimant) and the owner. When special liens, or liens for the protection of particular individuals or classes, are created by statute, the statute usually prescribes the form and manner of procedure in prosecuting and enforcing such lien. 3 Parsons on Contracts 276. The mode here prescribed is by attachment. An attachment then must be made, and the form of process to be adopted should be such as is-most consistent with the rules of law and practice and with reason,, and the most simple and feasible. The plaintiff contends that assumpsit against the owner who has the benefit of the services (the process, setting forth the services performed and on what they are performed, the amount claimed, and showing the property held and the purpose for which it is held by the attachment) is the best form, and most in harmony with the principles of the common law and most in accordance with common sense. We submit that the legislature contemplated this form of procedure, — to wit, making the owner of the property attached a party to the suit; and that secs. 14 and 15 authorize-this form of procedure. This proceeding gives the party interested to defend against the claim set up, and the party on whom the liability rests, all the notice required by any statute or by the rules of common law in matters of liens in general.</p> <p>The issue is between the owner and the workman ; and why should they not be the parties to the suit or process ? A judgment against the owner for the amount found due the workman, and a sale on execution, of the property specifically returned on the writ, would seem to be regular and in all respects just, and just the course of procedure contemplated by the legislature in this provision of the statute.</p> <p>To sue one party and attach the property of another to respond the judgment would seem to require a process and form of procedure irregular, contradictory, confusing, and absurd. The officer must be directed to attach the property of A B, and summon C D to appear, &c., and equally ridiculous must be the direction in the execution recovered in such case and the officer’s return thereon. The construction contended for by the plaintiff works no hardship to the owners and does them no injustice. It creates a liability on the owners to pay the party performing the services and conferring the benefit, and binds them no further than they ought to be bound.</p> <p>We say this action cannot be maintained. 1. Because the plaintiff had no contract with the defendants, and the defendants never knew him in the contract which they made with Fifield for drawing this wood. Had the defendants neglected to pay Fifield for drawing it, then he could have attached the wood within sixty days after the services were performed', and have held it for the satisfaction of his debt against all prior attachments, and probably against a mortgage. But Fifield had no interest in the wood, which his creditors could attach and hold against the owners of it. Lovett v. Brown, 40 N. H. 511.</p> <p>This we submit is the construction of sec. 11, ch. 125, Gen. Statutes, and is the common law in relation to mechanics’ liens, and which has been incorporated into the statutes of nearly every State in the union, and accepted and adopted by the courts of the several States, — to wit, that the right of lien must be given by one having the right of property. Hollingsworth v. Bow, 19 Pick. 228 and 230; Lovett v. Brown, 40 N. H. 511, and cases there cited; 2 Kent’s Com. 635, notes d. 1 and 2 ; 3 Parsons on Contracts 241. Fifield had no right of property. Where one who had contracted to finish a machine employed a mechanic, without the knowledge of the owner, to perform the work, disclosing to him the contract with the owner, it was held that such mechanic did not acquire a lien in his own right for his labor upon the machine as against the owner, although the owner knew he was performing the work while it was in progress. Hollingsworth v. Bow, 19 Pick. 228 before cited. This being the law relating to mechanics’ liens, the question arises, Is there anything in sec. 14, ch. 125, of the Gen. Statutes, which gives to the persons referred to in that section any rights inconsistent with the general law in reference to liens ? We submit there is not, and least of all, such rights as are contended for by the plaintiff in this suit. We contend that the legislature, in passing the act of 1866, intended to extend the same rights and privileges to the persons therein mentioned, that were previously enjoyed by mechanics and others, and no other rights or privileges. Any other construction is inconsistent with the general provisions of the statute, and tends to subvert rather than enhance the ends of justice. If the court holds that actions can be maintained, commenced as this was, and that subcontractors have liens which they may enforce against the original owners, then there is no safety for parties doing this kind of business. For instance, suppose Fifield, after making his contract with the defendants, had sub-let all of the work at rates so that the liens would amount to more than the entire marketable value of the wood. Can it be said that the defendants would be obliged to pay up and discharge these liens, at such ruinous prices, before they can have their property? The mere statement of such a position is a perfect answer to it. 2. But if it be held that sub-contractors may have a lien which they can enforce against the original owners, under the above section, this action cannot be maintained, as the writ sets up a contract with the defendants, when the case finds that no such contract exists or ever did exist, unless such contract can be implied under sec. 14, cli. 125, of the Gen. Statutes. See 1 Ohitty’s Pleading 112. The plaintiff says in his brief, “ the form of process to be adopted should be such as is most consistent with the rules of law and practice,” &c., &c. But we submit that the process contended for by the plaintiff in this suit is entirely inconsistent with the rules of law and practice. Neither can we discover the inconsistency or absurdity in adopting some other process mentioned in the plaintiff’s brief. If Fifield is indebted to the plaintiff he should commence his suit against him, and not against some one else whom he never knew or had any business connection with whatever; and if the wood can be held to satisfy any such claim as is here set up by the plaintiff, we say it cannot be held by any other process than one against Fifield.</p> <p>Had the suit been thus commenced, and the defendants afterwards have taken the property, the officer might have maintained trespass or trover against them, provided it be held that sub-contractors have a lien as against the original owners.</p>

<p>Assumpsit, by Ossian Ray against Edward E. Adden, for professional services rendered defendant’s wife at her request. Defendant commenced a libel for divorce against his wife, for the alleged cause of adultery, which was entered in court at July term, 1866, for Coos county, and continued from term to term until the March adjourned term, 1870, when, upon hearing, said libel was dismissed without prejudice. At the July term, 1867, on application of the libellee, an allowance of thirty dollars was granted her by the court to aid her in defending said libel, which was paid by the defendant. Plaintiff claims and offers to prove that from the time of filing1 said libel, said defendant’s wife has been and is destitute of property and unable to pay her counsel, who has received nothing towards his services and advances except said thirty dollars. The services of counsel were necessary in defending the libel, and plaintiff’s claim is wh.olly for such services and advances. The defendant never employed the plaintiff nor agreed to pay said claim; but the plaintiff contends that defendant is bound to pay the same as for necessaries provided for Ms wife.</p> <p>It was agreed that after the opinion of the court should be obtained on the foregoing case, it might be discharged and tried by the jury if either party so elect.</p> <p>Questions of law reserved for the whole court.</p>

1st Case. Motion by defendant, that the agreement entered into and filed with the clerk at Nov. term, 1867, be rescinded. Said agreement is as follows: “Coos ss. S. J. C., November term, 1867. Henry B. Wells v. Jackson Iron Manufacturing Company.

Foreign Attachment. Richard P. Kent v. Alpheus Hutchins and Olive Hutchins, trustee. Writ dated Oct. 19, 1867. Plaintiff, after taking trustee’s disclosure, elected trial by jury. The evidence and instructions were such that the trustee must have been found chargeable if the jury found that she had done any of the acts mentioned in section 43 of chapter 230, General Statutes. Yerdict, “ not chargeable.” Plaintiff then moved for costs against trustee under the above section.

<p>Case, for damages happening by reason of a defective highway. Ad damnum, $2,000. The defendant filed a confession for $75, and pleaded the general issue to the residue of the plaintiff’s claim. Verdict for the plaintiff for more than the amount confessed. Motion of the defendant for a new trial. At the trial the plaintiff waived all claims for exemplary damages, and sought to recover only actual damages. The defendant offered to show that the plaintiff was not in the exercise of ordinary care, and that his fault contributed to the accident, and that the plaintiff had, in reality, no cause of action, as tending to show that he ought not to recover more than the amount of the confession. This evidence was excluded, and the defendant excepted, Case reserved.</p> <p>I. Upon legal principle the evidence excluded ought to have been admitted.</p> <p>1. A confession is in the nature of a plea. The legal effect of it is to admit all that is necessary in order to make the plaintiff’s judgment for the amount confessed a good judgment, provided he chooses to accept it. Further than this it cannot be held to go without doing violence to the fundamental principle that “ The plaintiff cannot use one plea as evidence of the fact which the defendant disputes in another plea.” 1 Ch. PL 568 and notes; Bump v. Smith, 11 N. 11. 48. “A defendant may plead tender as to a part, and general issue as to the residue, and he may plead with the general issue a release, discharge in bankruptcy, accord and satisfaction, and a variety of other pleas, which confess and avoid the plaintiff’s action, — 1 Ch. PL 562 and notes; and yet, although these pleas are formal admissions of the facts alleged, 1 Oh. Pl. 525, 526, they are not evidence on the trial of the general issue denying the facts alleged.” Brief of defendant’s counsel in Rachett v. The Railroad, 35 N. H. 394.</p> <p>2. The law has not been held otherwise in this State. In Kelly v. Dover, 18 N. H. 565, this question did not arise. And the remark of the learned judge who delivered the opinion of the court, that “ This is a mere admission of the traversable allegations of the plaintiff’s count, and that damage to the extent confessed has resulted,” was made in view of the facts of the case. So far as regards the right to have a good judgment for the amount confessed, the remark is strictly correct; but if it be extended into a rule to govern in the trial of the general issue, which defendant has a right to plead in addition to his confession, wherein all the allegations of the count are denied, we contend it is wholly wrong. And the opinion in that case shows t^at its application and effect as thus extended were not considered at all. Rachett v. The Railroad, 35 N. H. 390, as we understand the case, is not an authority against us. The court say distinctly, “A confession is an admission of a cause of action, as alleged in the declaration, to the extent of its terms, and no further.” The terms of the confession are — “ So far as your right to recover $75 is concerned, I admit your cause of action, and no further.” If it be held to be an admission of the causo of action beyond that sum, its terms are extended to the manifest hurt of the defendant. The question did not rise in Qorey v. Bath, 35 N. H. 531. And what is there said as to the effect of a confession was said in view of questions tliat could be raised by a motion in' arrest of judgment, and is correct. In any view we are unable to see anything in the dicta of the learned Chief Justice in that case at variance with the doctrine for which we are contending. The defendant has a right to plead the general issue as to all above the confession. And that right is not qualified or limited.</p> <p>What is the general issue ? It is a broad, general denial of all the allegations of the declaration. What kind of a general issue is the "defendant permitted to plead if evidence of the kind offered in the case is to be excluded ?</p> <p>His general issue becomes this: “ I am guilty, but I offered you enough to settle.” That is no general issue at all. If such a doctrine is held, it practically settles, contrary to the statute (Gen. Stat., p. 425, sec. 2), that a defendant cannot plead the general issue after a confession ; for of what avail is it to put in a formal plea of “ not guilty ” if he cannot be allowed to prove it, and the jury are to be told that his admission in a former plea is conclusive evidence that he is guilty ?</p> <p>II. We submit that a fair regard for the rights of the parties demands the rule for which we contend.</p> <p>A confession is like an offer of compromise. It is at defendant’s option whether he will accept it, or join the general issue tendered and go for more.</p> <p>Upon what principle can it be held that in the trial of this issue thus joined the plaintiff should have the immense advantage of a conclusive admission of the primary liability of defendant, made in a former plea for such a purpose ? It cannot be fair.</p> <p>III. This evidence was offered upon the question of damages. How can it be held that upon the question whether the plaintiff is entitled to recover more than $7 5, we may not show that he is not entitled to recover anything ?</p> <p>The defendant’s confession admits all the traversable allegations of the declaration. The allegation that plaintiff was in the exercise of due care, and that the injury resulted from, the defect in the' highway, is a material or traversable allegation of the declaration. And the only question in this case is the amount of damages plaintiff shall recover for the injury alleged to have been sustained. Kelley v. Dover, 18 N. H. 566 ; KacJcett v. Railroad, 35* N. H. 390 ; Oorey v. BatJi, 35 N. H. 548.</p> <p>I. The statute is express, that the defendant may plead as to the residue of the plaintiff’s claim, after confessing part of it. Gen. Stat., p. 425, sec. 2.; Comp. Stat., p. 482, sec. 2. This statute, being general in its terms, of course gives the right to plead the general issue. The right to plead the general issue in such cases, being conferred by statute, can not be taken away by the court. But, we say, the right to plead necessarily implies the right to prove the plea; and if that be so, the right to introduce the evidence offered and excluded in this case rests upon the statute, and cannot be denied by the court.</p> <p>II. But it is claimed that the court has already settled this question against the defendant, and three cases are cited in which it is said such a doctrine has been held, — namely, Kelley v. Dover, 18 N. H. 566 ; KacJcett v. B. O. &; M. Railroad, 35 N. H. 390; and Oorey v. Bath, 35 N. H. 530. It would, perhaps, be enough to say of those cases * that the question,raised here did not rise in either of them, and therefore that the point has not been authoritatively settled. We think, however, that upon examination it may well be doubted if either of the judges who delivered the opinion of the court in the cases in question carefully considered the legal effect of a confession in the view presented by the exception in this case. At all events, we insist that no rule has been suggested, in either of the opinions, founded upon any sound general principle, which can fairly be extended in its application so as to control the decision of this case.</p> <p>In Kelley v. Dover, it was claimed by the plaintiff that the confession was an admission of the matters of aggravation set up in the declaration, and that those allegations being thus admitted, the jury might, on the strength of the admission, find a verdict for greater damages than the sum confessed; in other words, that the confession was evidence upon the trial of the issue joined on the plea of “ not guilty.”</p> <p>The court held otherwise, and that is all there is to the case. It is true, Gilchrist, J., in delivering the opinion, says, “ This is a mere admission of the traversable allegations of the plaintiff’s count, and that damage to the extent of the confession has resulted.” But this remark must be considered in connection with the facts of that particular case. If it be regarded as the statement of a general legal proposition, it seems to be clearly and distinctly overruled in the subsequent case of Kackett v. The Railroad, as well as by the remarks of Judge Perley in Corey v. Bath. Qualified and limited in its application to that case, however, it was well enough. The judge was aiming to refute a claim based upon precisely the same ground as that set up by the plaintiff here, namely, that the confession could be used as evidence beyond the sum confessed. So far as the ten dollars was concerned, it was a conclusive admission of the traversable allegations of the declaration. Whether it was an admission of such allegations beyond that sum did not rise in the case, and it is sufficiently evident from the whole opinion that that question was not considered. The eminent judge says, in effect, the confession does not admit matters of aggravation set up in the count; it only admits the traversable allega^tions and ten dollars damage; and inasmuch as the confession and the verdict were co-extensive, the remark was correct. So far as regards any question that could rise in that case, or that the case would be likely to suggest, the confession was a conclusive admission of all the traversable allegations of the count. We claim the above case as an authority for us. The legal principle upon which it rests is that a confession cannot be used as evidence against the defendant beyond the sum confessed; and the application of that principle is all we are contending for.</p> <p>In Sackett v. The Railroad, “ the court (below ruled that the confession admits some causé of action alleged, and the amount of twenty dollars damages from such cause; ” and the court say, “ The ruling seems to us entirely correct and proper.” How does this leave the law ? Does it settle that the defendant cannot offer proof of his plea, which the statute has given the right to plead ? The court seem to have avoided the point offered for their consideration by the defendant’s counsel in his brief, by holding, contrary to the argument, that the cause of action was divisible. Does the court mean to hold that the confession conclusively admits the negligence charged in the declaration, and that this admission clings to' the defendant throughout-every phase of the trial ? It is said in the opinion, “ The defendants might admit some negligence by which twenty dollars damage resulted.” With due deference we say that is not the question ; the question was one of pleading, — not what the defendant might admit, or did in fact admit on the trial.- But- what does the confession admit? What is its legal effect? Does it admit the material allegations of the count ? Does it admit the negligence charged ? If so, how can the defendant afterward be allowed to say that some of the damage was done by lightning ? It appears to have' been the view adopted in the case under consideration that the defendant, notwithstanding his confession, may show that part of the damage resulted from inevitable accident, or the act of God. But the declaration charges that all the damage for which the suit is brought resulted from the defendant’s negligence, and there was a confession. Where is the rule ? Is it the doctrine of this case that when a judge by a process of reasoning, or by referring to his own knowledge of things, can see that it might be possible for part of the damage to have resulted from the defendant’s fault and part not, then the confession has not the legal effect to admit conclusively the traversable allegations of the declaration; but that when no such inference can be drawn, then the confession has the legal effect of a conclusive admission of the whole count ? If so, there is no rule. The legal effect of a confession is made to depend, not upon any uniform principle, but upon extrinsic facts, to be proved or gathered by the court from sources' wholly outside the record. We submit that any such fast-and-loose style of reasoning, applied to a question of pleading, destroys all the beauty and .scientific accuracy which it is so important to preserve in that branch of the law. It seems to us there is no intermediate position where the court can stop with any fair regard to principle. It must be held that the confession conclusively admits the traversable allegations of the count, or that it does not, beyond the amount confessed ; and to say “ Sometimes it does and sometimes it does not,” involves an inconsistency.</p> <p>But it is certainly held, in Hachett v. The Railroad, that the confession does not operate as a conclusive admission for anything beyond the twenty dollars confessed; and although there is a.remark about the cause of action being divisible, and some occasion to suppose that the conclusion of the court was, to a certain extent, based upon that consideration, still we argue that the conclusion reached in that case would stand much firmer and on a much more satisfactory basis by adopting the principle for which we contend. The law settled in that case was practically all we ask for in this. The defendant was permitted to show that the damage above twenty dollars did not result from his negligence. We sought in this case to show that the damage above seventy-five dollars did not result from the defendant’s negligence, but were not permitted to do so; and it is of this manifest inequality we complain. We do no find fault with the conclusion in Hachett v. The Railroad; but if the reason for that conclusion, given in the opinion, establishes one rule for one case and another rule for another case precisely similar, so far as the practical merits are concerned, we do find fault with the reason, and say it is not good logic, and therefore cannot be law. It is worthy of remark that in the very first sentence of the opinion in Maekett v.' The Mailroad, a proposition is laid down amply broad enough to cover all we claim, — namely, “ a confession is an admission of a cause of action as alleged in the-declaration to the extent of its terms, and no further.”</p> <p>The only question which appears to have been fairly raised in Corey v. Bath, except those relating to the sufficiency of the declaration after verdict, was, whether or not travelling on Sunday to make a social visit is within the statute prohibiting any play, game, or recreation on that day. Evidence that the plaintiff was travelling on Sunday at the time of the accident is of precisely the same character as that excluded in the case at bar, and no objection seems to have been made that it was not competent But if the question of the effect of a confession was before the court at all, it must have been upon this branch of the case; and if the court had intended to hold that the evidence was not competent on the ground that the confession admitted that the plaintiff was in no fault, it is incomprehensible why they did not say so in so many words, without circumlocution or ambiguity. Instead of doing this, an elaborate argument is entered into to show that travelling in the way and for the purpose indicated is not within the prohibition of the statute. Then comes what is said as to the effect of a confession. “ When the defendant confesses a certain amount of damages, he admits conclusively every fact which the plaintiff would be obliged to prove in order to recover that sum.”</p> <p>For what purpose are those facts so admitted by the confession? We say the confession is conclusive only to the extent of the sum confessed, to enable the plaintiff to take it, or have a good judgment for the amount if he chooses, without being put to the expense of proving his case. The effect of it is that the defendant cannot at the trial, or if there is no trial, he can not in making up the damages retract his solemn admission and say that the plaintiff shall not have the sum he has confessed his liability to pay. It is, and ought to be, a conclusive admission to this extent and for this purpose, and no further. In this view, all that is said in Corey v. Bath is sensible and consistent. It does not overrule the statute, nor do violence to any fundamental principle of law. It does not change the record so as to make the defendant say he is guilty where he has said in pleading he is not guilty ; but leaves the parties where they should be left in the trial of the general issue, upon equal footing. We say, therefore, it is fair to suppose the court intended this, — the only just, reasonable, legal, and scientific construction which can be put upon their observation.</p> <p>But if it should seem that a contrary doctrine is held in that case, then we say the case ought to be so far overruled.</p> <p>1. Because it contravenes a fundamental principle of the common law, namely, that one plea shall not be used as evidence to support the allegations of another plea.'</p> <p>2. Because it would be unjust. No good reason can be given why the defendant should go into the trial of the general issue hampered by a fatal, conclusive admission, which in any fair and comprehensive practical view of the matter is nothing more than an offer to settle, which the plaintiff has refused to accept. Every principle of justice and fairness requires that in the trial for the nest dollar beyond the confession, the plaintiff should be compelled to prove his right.</p> <p>3. Because it in effect changes the record and compels the defendant to say he is guilty, where he has solemnly said, as lie has a right to say by the statute, that he is not guilty.</p> <p>4. Because it contravenes and overrules the statute of the State by holding, to all reasonable and sensible intent, that the defendant should not plead where the statute says he may; for it is an absurdity to say he may plead but shall not be suffered to prove his plea.</p> <p>The ruling in this case not only relieves the plaintiff from proving that the defendant is liable, but debars the defendant from showing he is not.</p> <p>The doctrine contended for involves another inconsistency.</p> <p>The question of damages, at least, is open to the defendant, and it is his absolute right to present and have considered all the evidence in his possession, which has a legal bearing on that question. Does not the fact that he is not liable to pay anything ténd to show that the plaintiff is not entitled to recover more than the sum confessed? The answer seems too clear to be disputed, that it does, and is therefore admissible.</p> <p>We submit that a strict adherence to general principles is the only means by which the consistency and harmony of the law as a science can be maintained. And whenever, as in this case, there is an attempt to introduce some doctrine founded on a partial view, or imperfect generalization, it not only leads to contradictions, but generally to practical wrong and injustice. In this case, for instance, suppose the defendant, after filing his confession, had discovered evidence showing that he was not liable at all, — the ends of justice clearly demand that he should have the benefit of such evidence. But, upon the doctrine contended for here, he is not only debarred from its full benefit, but can not be permitted to introduce it to show that he ought not to pay more than he has already offered.</p> <p>We maintain that the position of the defendant would entirely defeat the object of our statute. The very purpose of our statute was, that defendant might confess the plaintiff’s right of action to a certain amount, and, under the general issue, try the question of damages to the. further amount claimed by the plaintiff, and not subject himself to liability to pay the plaintiff’s full costs in maintaining the allegations of his declaration. In a case like the one at bar, where the damages are indivisible, the effect of a confession is to admit all the material allegations of the declaration, and plaintiff can only produce witnesses upon the question of damages to be taxed against defendant if plaintiff recovers more than is confessed. It is upon the same allegations (or state of facts) that plaintiff’ claims to recover more than is confessed, which defendant by his confession acknowledges ; and defendant here claims that plaintiff should prove just the allegation (or state of facts) confessed by him, to wit, that the injury was caused by the defect in the highway and not by any neglect of the plaintiff. If the damages are divisible, then defendant can have a specification, and can make his confession apply to the whole or to part of the specification, and plaintiff must govern himself in the proof of his case in accordance with the confessiont hus filed. Bacon v. Charlton, 7 Cush. 581; Sosmer v. Warner, 7 Gray 186.</p> <p>Corey v. Bath is a direct authority upon the question of the effect of a confession, as in that case some of the objections made by defendant to the plaintiff’s evidence, showing extent and nature of the injury, went to the sufficiency of the declaration, which could be taken advantage off only by demurrer or by motion in arrest of judgment. There was a motion in arrest of judgment. The court decided that the declaration was sufficient, and that the confession was an admission of some cause of action of the nature laid in the declaration, making two good reasons why the motion should be denied and the objections overruled.</p> <p>The defendant’s position rests upon the ground that a confession is a common law plea, and upon the common law rule that one plea can not be used as evidence in the trial of the issue under another plea. The fallacy of this position is in maintaining that a confession under our statute is a plea. The statute is that defendant may file a confession of the plaintiff’s right to recover a certain amount of debt or damages, and plead as to the residue, showing clearly that the confession is not a plea and raises no issue; that the issue is to be raised under the plea as to the residue of the claim. And the issue in a case like the one at bar, under a confession of a certain amount of damages and a plea of the general issue as to the residue, is limited to a question of the amount of damages, for the reason that plaintiff’s right to recover the residue of damages claimed by him depends upon precisely the same facts that his right to recover the amount confessed does.</p> <p>It makes no difference with this question that defendant’s confession is put in form of a plea. The effect is the same as though it had no form whatever. If defendant had come in and filed a paper in substance like this, “ I hereby confess the plaintiff’s right of action to the amount of $75,” and to the residue of the damages claimed by plaintiff pleaded the general issue, would that not be sufficient under our statute, and would not the effect of the general issue be limited to the question of the amount of damages ? If so, it clearly appears that a confession under this statute is not a common law plea, and the rule relied upon by defendant has no application. We have always understood the practice, both in this State and Yermont, to be as we claim the rule here.</p>

Trespass qu. cl., by Azro B. Hurlburt against Charles Bellows, Thomas C. Sullivan, and John D. Mooney. The defendants, severally, pleaded the general issue. Messrs. Burns & Heywood appeared for Bellows; Mr. Whidden appeared for Sullivan and Mooney. The plaintiff offered evidence tending to show that Mooney and Sullivan entered upon, the plaintiff’s lot and cut timber; and that they did this as the servants of Bellows and by his directions.

Assumpsit for labor, brought to this court by the plaintiff on appeal from a probate commissioner. The plaintiff had brought a suit for the same cause of action against Baldwin in his lifetime, and that suit was discontinued wlien Baldwin’s estate was decreed to be administered as insolvent, and the plaintiff’s claim was presented to, and disallowed by, the commissioner.

Assumpsit, for work done, materials provided, and money paid, in building the defendants’ grist-mill and shed.

Assumpsit, to recover for repairs on two wagons. The plaintiff alleged that the defendants’ father, who brought the wagons to be repaired, was their agent, and could and did bind them to pay for the repairs.

The plaintiff and defendant owned land adjoining. The line between was 148 rods long, running east and west, — Perry’s land lying on the north of this line, and Jones’s on the south of it. A highway bounded them both on the east, and a farm known as the John Carr farm bounded them both on the west, though Perry’s land was not all the way of the same width from north to south. The following diagram will represent the location and form of these lands.

This is petition* of Edwin Judkins, to correct the count of the votes for county commissioner of Merrimack county for 1869, by rejecting the vote of ward 4, in the city of Concord, on the ground that the election there was fraudulently and illegally conducted; and thereupon to declare the petitioner to have been duly elected instead of Daniel E. Hill, who was declared by the presiding justice at the trial term to have been duly elected.

This is a bill in equity, brought by Sawyer and others against the widow and minor children of Jacob Peters, deceased, to whom the plaintiff, in his lifetime, had conveyed certain real estate.

<p>Trespass will not lie for a neglect to repair fences which a party is bound to repair, by reason of which plaintiff’s cow escaped on to plaintiff’s land and was there bitten by a dog.</p> <p>Whether defendants would be liable in any form of action for such an injury, it not appearing that they incited the dog to this mischief, or were in any fault other than neglecting to repair the fence, or whether the injury is too remote, quaere.</p>

<p>The indictment alleged that the respondent, on the 12th day of December, 1869, at Concord, &c., one horse of the value of one hundred dollars, one sleigh of the value of fifty dollars, and one harness of the value of thirty dollars, all of the goods and chattels of one E. T. S., then and there being found, feloniously did steal, take, and carry away, &c. Held, not bad for duplicity.</p> <p>Held, also, that the horse, sleigh, and harness being taken at one time, and all being the property of one owner, constitute but one larceny, and. cannot be the subject of different indictments.</p> <p>In such case the State might omit the other property, and indict and convict for stealing the horse only, under sec. 2, chap. 260, General Statutes, or it might indict and convict for the act of stealing all the property, as the goods and chattels of the owner, under sec. 3 of the same chapter. The State, having elected to prosecute for the lower grade of the offence, cannot afterwards prosecute for the higher.</p>

The original writ was dated* Aug. 30,1864, a writ of review, Nov. 28, 1866. The action was case against the defendant as a surgeon, for alleged malpractice in not properly and skilfully setting and curing plaintiff’s fractured leg; which injury occurred to plaintiff on the 20th of May, A. D. 1863. The plaintiff’s writ contained two counts. The ad dam-hum, $10,000. Defendant’s plea, the general issue.

<p>The Northern Railroad brought a bill in equity against the Concord Railroad to enforce a contract made by a former board of directors of the Concord Railroad, substantially transferring the management of the Concord Railroad to the Northern Railroad for the term of five years. Upon the evidence, a. majority of the court found that the controlling purpose of the directors of the Concord Railroad, in making the contract, was to prevent the management of the road from passing into the hands of a new board of directors, whose election at the next annual meeting was generally anticipated; and that this purpose was known to the Northern Railroad. On this state of facts a majority of the court held, that the contract was invalid because of the purpose for which it was made.</p> <p>In this case it was held by Sakgknt, J., and Smith, J., that there was not such reason to apprehend a perversion of the trust by the newly elected directors of the Concord Railroad as would justify the court in withholding from them the control of any portion of the corporate affairs, except certain pending suits which the new board had already been expressly enjoined from controlling.</p> <p>In equity, upon a hearing on the merits, the court were equally divided on the question whether the bill should be dismissed. Held, that no judgment could be entered, that the cause remained pending, and that receivers, who had been appointed to hold the property during the pend-ency of the suit, would remain in possession.</p>

<p>In an action of trespass guare clausum, fregit, the declaration alleged the taking and conversion of chattels by way of aggravation of damages, and it appeared aliunde, that the fact of the taking and conversion of such chattels was actually tried and submitted to the jury; — held, that the verdict and judgment thereon were conclusive of such taking and conversion, in another controversy between the same parties, as to the same property.</p> <p>In such ease, satisfaction of the judgment by the defendant operates as a transfer of the property to him, which, thereupon, takes effect from the time of the conversion.</p> <p>Neither the testimony of jurors who tried the cause, nor their declarations made to other persons, that the jury did not include anything for such property in their assessment of damages, can be received in a subsequent suit between the same parties, for the purpose of showing that the title did not pass to the defendant upon payment of the judgment.</p>

This is a petition for a new trial or review of an action in favor of .the petitioner against the petitionee, in which judgment was rendered fo.r the petitionee at the April trial term in this county, 1864.

Petition for the removal of a cause into the United States court. The action was brought on two policies of insurance, one for three thousand dollars and one for two thousand dollars, on the life of Dexter D. Geyer, by which the defendant promised to pay these sums to the assured, his executors, administrators, and assigns, after the death' of the said Dexter, and notice thereof, for the sole use of Lucy A. Geyer, his wife.

<p>Case, by Eaton & Whittemore v. Charles E. Hill and Dana Cummings. The declaration and plea of Chas. E. Hill make part of the case, and to the plea the plamtiffs demurred generally. Declaration. “ In a plea of the case for that the said defendants, on the twenty-fourth day of June, 1870, at Manchester aforesaid, in the county aforesaid,., hired of the said Eaton & Whittemore a certain horse and carriage, to l'ide from said Manchester to said Nashua, for a certain price; and the said Eaton & Whittemore delivered to the said defendants the said horse and carriage for that purpose. Yet the defendants so carelessly and immoderately drove said horse; that by means thereof the said horse, on the said twenty-fourth day of June, 1870, at Nashua aforesaid, died.” Plea. “And the said Charles E. Hill, who is under the age of twenty-one years, by Charles R. Morrison, his guardian, who is admitted by the court to defend for him, comes and defends, &c., when, &c., and says, that at the time of the letting, careless and immoderate driving, and death of the horse therefrom, in said declaration mentioned, the said Charles E. Hill was under twenty-one years of age, to wit, was of the age of' eighteen years, and no more, and this he is ready to verify. Wherefore he prays judgment if the plaintiffs their action aforesaid ought to have or maintain against him and for his costs,” &c.</p> <p>This is an action on the case to recover damages for the tortious act of the defendants, and such an action is understood to mean an action in form ex delicto. 1 Chitty’s Pleading, 132; Stephens on Pleading, 16. The general principle applicable to this case is, that infants are liable for substantial torts, irrespective of the form of action which the law prescribes for the redress of the wrongs. They are not liable for mere negligence in not performing contracts, but are liable for injuries resulting from their tortious acts. An infant is as fully liable as an adult, in an action for damages occasioned by injury to the property of another by his wrongful act. Conklin v. Thompson, 29 Barb. 218 ; Bullock v. Babcock, 3 Wend. 391; Met. Contr. 49; Addison on Torts, 731; 2 Kent’s Com. 240, 241; School Bist. v. Bragdon, 23 N. H. 507 ; Homer- v. Thwing, 3 Pick. 491; Fitts v. Hall, 9 N. H. 441; Towne v. Wiley, 23 Yt. 355; 1 Esp. Rep. 173. An action of case does not necessarily arise from or grow out of a contract. In a similar case to the one in question, it was said, “ If the infant does any wilful and positive act which amounts, on his part, to an election to disaffirm the contract, the owner is entitled to the immediate possession. If he wilfully and intentionally injures the animal, an action of trespass lies against him for the tort.” And we see no reason why case should not, on the same principle, lie against him, if the tort was' subsequent to the contract and not a mere breach of it, but a distinct and positive wrong of 'itself, and the injury is the consequential result, as in the present case. Com. Dig. Action on the Case (A. 5); Cole v. Fisher, 11 Mass. 136.</p> <p>In Bristow v. Eastman, 1 Esp. Rep. 172, it was held by Lord Kenyon that infants were liable to actions ex delicto, though the action was in form ex contractu, if in point of substance it was of the former. This was an action of assumpsit for money had and received. In the old English cases, there was an evident disposition to rule in favor of the infant’s exemption. And it was held in Manhy v.Scott, and approved in Jennings v. Bundall, that “ all the infants in England would be ruined ” by allowing an infant to be charged in trover, for goods received on a contract and converted; but the decisions of courts at the present time are based upon a more equitable principle. It has been repeatedly held, and may now be considered a well established doctrine, that infants are liable in trover (which is a species of action on the case) for goods entrusted to their care, and unlawfully converted. 3 Pick. 492; Fosse v. Smith, 6 Crunch 226; Campbell v. Stakes, 2 Wend. 137; Lewis v. Littlefield, 15 Maine 233; Walker v. Davis, 1 Gray 506 ; Baxter v. Bush, 29 Yt. 465.</p> <p>The declaration upon its face treats the contract as subsisting. It shows only the absence of that care, prudence, and judgment in the treatment of a hired horse that the law expects and requires of an adult, but not of a minor. There can be no recovery" in this form of action and under such a declaration, and there ought to be none. The law goes quite far enough in allowing the lender to recover in trover or trespass for a wilful, positive wrong, in disaffirmance of the contract. It may be hard for the plaintiffs to lose a horse through the indiscretion of a boy of eighteen, but it is harder still that hundreds of boys should be ruined by the facility with which horses are hired without the knowledge, and against the will, of their parents and guardians, who, if any injury happens, are called upon to foot the bill. Jennings v. Randall, 8 T. R. 237; Wilt v. Welsh, 6 Watts 1; Campbell v. Stakes, 2 Wend. 137 ; 2 Greenl. Ev. § 368 ; Schouler’s Domestic Relations 565; Prescott v. Morris, 32 N. H. 101; 1 American Leading Cases, 109-115.</p>

<p>When a person convicted of an infamous crime is pardoned, the conviction is evidence upon the question of his credit as a witness.†</p>

Indictment, against George A. Whittemore, alleging that he, “ on the twenty-eighth day of February, in the year of our Lord one thousand eight hundred and sixty-eight, at Hancock, in the county of Hillsborough aforesaid, giving his testimony in and by a certain writ: ing called an affidavit, by him subscribed, as a witness relative to an application in writing thereafter to be made to the police court of the city of Nashua, to be admitted a citizen of the United States, by…

Trover, by Joseph G. Hill against Justin Spear, a deputy sheriff', for attaching property on a writ in favor of William Stewart against Dudley B. Emerson. The taking was admitted. The plaintiff's claim to a portion of the property was founded on an alleged purchase from Emerson, the validity of which was disputed by the defendant. One question on trial was, whether Stewart was a creditor of Emerson.

<p>Appeal, from commissioner of Proctor’s estate, in Solomon J. Stearns, administrator of Warren E. Shattuck, v. Francis W. Wright, administrator of John S. Proctor.</p> <p>The facts of this case sufficiently appear in the opinion of the court.</p>

<p>A sale by one partner to another of his joint interest in property insured, is not such an alienation of the property as will avoid the policy, even under an express provision in the charter declaring that the policy shall become void upon alienation of the property by sale or otherwise.</p> <p>A sale by one partner to another of his intei’est in property insured, accompanied by a delivery of the policy of insurance, operates as a valid assignment, and transfers to the purchaser all the seller’s equitable interest in the insurance.</p> <p>In such case, if the insurer, upon notice of the assignment, make a verbal promise to the assignee to pay the insurance to him in case of loss, the assignee can, upon proper averments, maintain a suit upon the policy in his own name. The declaration should set forth the original contract and policy, and the assignment thereof,,as a consideration for the new promise. The equitable interest obtained by the assignment is a sufficient consideration to sustain the subsequent promise to pay to the assignee.</p> <p>A suit upon a mutual insurance policy must be brought in the name of him who was "a member of the company at the time of the loss.</p> <p>Among the “ Conditions of Insurance ” annexed to a policy, was the following : “ Policies of insurance subscribed by this company shall not be assignable without the consent of the company expressed by indorsement made thereon. In case of assignment made without such consent, whether of the whole policy or of any interest in it, the liability of the company in virtue of such policy shall thenceforth cease.” JEeld, that this condition being inserted for the benefit of the company, they had the right to waive it; and that the declarations or acts of an agent of the company are competent to be submitted to a jury as evidence of such waiver by the company.</p> <p>A & B, as partners, obtained insurance in the defendant company ; and B: having sold to A his interest in the property insured, A thereupon delivered the policy to an agent of the defendant, requesting a re-insurance-of the property. The agent, knowing that A had bought and was the sole owner of the property, and that the policy had not been assigned,, said he would have the property re-insured, but did not know what the premium would be for the next year ; that he would get the new policy,, and A might then pay him the amount. Subsequently A paid the premium required ; and the agent then gave him a paper, which he laid away without looking at it, supposing it to be a new policy. After the destruction of the property by fire, he discovered that the paper was a renewal of the old policy issued to A & B, by a renewal receipt issued by the defendant to them, and attached to the back of the old policy. Heldr that the agent’s knowledge, and new promise or consent to the continuance of the policy for the benefit of A, must be considered t,o be that of the company ; and the authority of the agent to make such contract must be presumed till the contrary be shown.</p>

Assumpsit, byEben T. Wheeler, administrator of Myron W. Wood, against William Robinson. Plaintiff’s declaration embraced two counts: 1st, upon a promissory note, payable to said Wood. 2nd, for money had and received, wherein the same note was relied on. The pleas were the general issue, and the statute of limitations upon which issue was joined. The action was, by consent of parties, tried by the court.

Assumpsit brought by Haines & Wallace against Tucker & Co., on following contract: “ Nov. 18, 1868. It is agreed between Haines & Wallace and Tucker & Co., that Haines & Wallace will sell 5000 bushels malt at two dollars and forty cents a bushel of thirty-four lbs., and 2-|- per cent, allowed for screenings. The malt to be delivered at the rate of 1000 bushels per month, at Haines & Wallace’s malt-house — good sound malt. Geo.

<p>When plaintiff by deed conveyed to the grantee a certain well and aqueduct leading therefrom, excepting a certain branch before conveyed, and the plaintiff’s right of using all necessary water at certain places described, it was held, that the rights so excepted always remained in the grantor, and would enure to the benefit of his heirs and assigns, although there were no words of limitation.</p> <p>When in such deed it was stipulated that the grantee should guarantee to the grantor a sufficient quantity of water at the places described, and the deed was accepted by the grantee, it was held that he and his assigns were estopped to deny the grantor’s title, although the instrument was a deed poll and not signed by the grantee.</p>

<p>Indictment against the respondent for resisting an officer, as follows:</p> <p>STATE OF NEW HAMPSHIRE.</p> <p>Belknap, ss.</p> <p>At the supreme judicial court, holden at Gilford, within and for the county of Belknap aforesaid, on the fourth Tuesday of March, in the year of our Lord one thousand eight hundred and seventy, the grand jurors for the State of New Hampshire, upon their oath, present, that John Flagg, of Franklin, in our county of Merrimack, yeoman, on the twelfth day of February, in the year of our Lord one thousand eight hundred and seventy, with force and arms upon one William P. Lang, then and there being a constable of the town of Tilton, in said county of Belknap, legally appointed and duly qualified to discharge the duties of said office, and being then and there, in the due and lawful execution of said office in the service of a warrant issued by Charles C. Rogers, a justice of the peace throughout the State of New Hampshire, against said John Flagg, in a criminal case, founded upon a complaint under oath, duly exhibited to said justice against him, the said John Flagg, for the crime of (within the compact part of the town of said Tilton) firing and discharging a loaded pistol, without the command of any military officer having authority therefor, did make an assault, and him, the said William P. Lang, did beat, bruise, and ill-treat, and in the due and lawful execution of Ms office, in the service of said warrant, did then and there, unlawfully and knowingly, obstruct, oppose, and hinder, and other wrongs to the said William P. Lang then and there did, contrary to the form of the statute, &c.</p> <p>To this indictment the respondent demurred specially, and assigned the following causes of demurrer, viz.:</p> <p>1. It is not alleged in said indictment that the warrant alleged to have been issued by Charles C. Rogers was given under his hand and seal.</p> <p>2. Said indictment does not set out the complaint alleged to have been exhibited to said Charles O. Rogers; nor the warrant which it is alleged was issued by said justice thereon, nor the date of either ; nor by whom either of them was signed; nor that such complaint was under oath as the law requires ; nor what magistrate, if any, administered such oath, if any was administered; nor by whom such complaint was made or exhibited to such justice.</p> <p>3. Neither the complaint alleged to have been exhibited to said justice, nor the warrant alleged to have been issued by him thereon, is sufficiently identified or described in this indictment, or set forth in terms, or in their legal effect or substance, or with legal certainty.</p> <p>4. It is not alleged in this indictment that the criminal case set out in said complaint and warrant was committed in the compact part of the said town of Tilton, nor that this respondent in either is charged with any crime or offence known to the laws of this State.</p> <p>5. It is not alleged in said indictment that the officer was obstructed in the service of the process named in said indictment.</p> <p>6. It is not alleged in this indictment that the process in the hands of said constable was lawful process.</p> <p>7. This indictment does not set out with sufficient certainty all the facts which constitute and make the offence.</p> <p>8. Because said indictment is argumentative and informal, and in other respects insufficient; and this he is ready to verify.</p> <p>Wherefore, for want of a sufficient indictment in his behalf, the said John Elagg prays judgment, and that by the court he may be dismissed and discharged from the said premises in the said indictment specified.</p> <p>The questions of law were reserved.</p> <p>I.It is too clear for argument or doubt, that this indictment must be maintained, if at all, upon that clause of section 5, chapter 259, p. 521, General Statutes, which is in these words: “ If any person shall wilfully assault ” “ any officer, or other person duly authorized, in the service, of any lawful process or order ” — “ in any criminal case, the punishment of which is imprisonment in the common jail, and fine, or either ” — “ he shall be imprisoned not exceeding one year, and fined not exceeding three hundred dollars.”</p> <p>It is equally clear that under this statute, the sum total — the offence —must consist at least of the eight items following :</p> <p>1. The respondent must have committed the act.</p> <p>2. The act must have been an “ assault ” or, &c.</p> <p>3. He must have committed the “ assault or,” &c., “wilfully”</p> <p>4. The “ assault or,” &c., must have .been committed upon an “ officer or,” &c.</p> <p>5. The “ officer or,” &c., must have been actually engaged at the time “ in the service of”-“ process.”</p> <p>6. That “ process or order” must have been a “ lawful processor order.”</p> <p>7. This “ process ” must have been in a “ criminal case.”</p> <p>8. That “ criminal case ” must have been one for which the statutory punishment was either by imprisonment in the common jail, or fine, or both. '</p> <p>Each and every one of these items is a component part of, and essential to the existence of, the offence. If seven of these essentials exist, and the eighth is wanting, this offence, as set out in the statute, has no more legal existence than if all the eight essentials were wanting. The offence cannot exist, unless all of these essentials exist in one combinátion.</p> <p>The law has been precisely the same since March 1,1843. This section is an almost literal transcript of section 5, chapter 217, p. 441, of the Revised Statutes. The only changes made are purely verbal. Report of commissioners, 1867, chapter 260, section 6, p. 693. The law has been substantially the same since the adoption of our present constitution. Report of commissioners, 1842, section 6, chapter 220; Laws of 1830, title 27, chapter 5, section 15, p. 151;' Laws of 1815, p. 331, section 10 ; Laws of 1805, p. 276, act of February 16, 1791. A comparison of the law last cited and the Federal statute of April 30, 1790, section 22, shows that, with the exception of the necessary change of the titles of officers in the different jurisdictions, the two statutes were derived from a common source, and the “ charging words” in one are a literal transcript from the other.</p> <p>Whatever was of the essence of the offence under the Revised Statutes is so still. Whatever elements then entered into the composition of the offence, must now. Whatever facts were then necessary to make up the offence, must be so now. Whatever was then descriptive of any essential of the offence, is so still. It was then necessary that every indictment should at least show upon its face, with legal certainty, a sufficient description of the whole offence, by setting out with such certainty every essential which went to make up the entire offence. If this rule, which goes directly to the essential substance, and not to mere technicality or form, has not been changed, we need draw in aid no precedents ; for it is as clear, upon legal principles, as any mathematical demonstration, that this indictment cannot stand. No such change has been made; none constitutionally could be made.</p> <p>II. We have yet a State constitution; whether or not we shall have, if another legislature runs riot in the field of criminal jurisprudence, as have the last three, rests almost entirely with this court, which in the eye of the law owes its existence to that instrument. The court of last resort is its sworn guardian; the existence of the creator practically depends upon the physical will of the creature. This court should neither be a court of expedients nor of expediency ; for trusts, higher and greater than all other human trusts in this State, have been committed to its keeping. That constitution has a bill of rights. Article XV thereof provides that “ no subject shall be held to answer for any crime or offence, until the same is fully and plainly, substantially and formally, described to him” — “fully,” “plainly,” and “formally.” These words mean just what they say. Every essential, every component part, every item of the offence must be set forth in the indictment “fully,” “plainly,” and “formally.” The legislature has- no more constitutional power to provide that they need not be “formally” set out, than it has to provide that they need not be “fully ” and “plainly ” set out, or not set out at all. If the legislature can constitutionally provide that an offence need not be “ formally ” set out, it can logically provide that blank paper shall be deemed an indictment. Every legislative attempt to deprive the respondent of this full, plain, and formal description of every essential and item of the offence sought to be charged, is rotten from end to end with perversion of the fundamental law; and it is the solemn duty of this court so to declare it.</p> <p>We know -that this is an age of unrest, innovation, transition, and revolution, and are unable just now to recollect anything that somebody has not attempted to “ remodel,” “ reorganize,” or “ reconstruct,” * * * * * but the last places for any manifestation of this spirit are the kingdom of heaven, and a constitutional court of last resort.</p> <p>- We are painfully aware of the confusion in the cases in this country, upon the question as to how far the legislatures, under statutes of jeofails and amendments, may “ clip the corners ” and “ shear off” the constitutional prohibition. Some of this confusion has arisen from the marked difference in the clauses of the various State constitutions.</p> <p>, The courts in some of the States, where the provision is far less stringent than ours, have taken high and firm ground. People v. Campbell, 4 Parker C. C. 386, 387 ; Commonwealth v. Mahar, 16 Pick. 120 ; Murphy v. State, 24 Miss. 590-594; Murphy v. State, 28 Miss. 637-654; Perris v. State, 33 Miss. 373-376; Commonwealth v. Paris, 11 Pick. 437,438 ; Commonwealth v. Phillips, 16 Pick. 213, 214; Commonwealth v. Brown, 13 Met. 368; Commonwealth v. Blood, 4 Gray 32, 33.</p> <p>The furthest any of these cases have gone is well summarized by an eminent text writer, in these words: “In other words, the doctrine seems to be that this provision of the constitution has the effect to place beyond legislative abolition one of the principal common law rules respecting the framing of the indictment, as regards matters of substance, though not as regards matters of form.” 1 Bishop on Crim. Pro., sec. 398. “In the United States,there may perhaps have occurred some instances of slight amendments in matter of form having been allowed in the indictment, as at the common law, but •certainly none in matters of substance.” Ib. sec. 389.</p> <p>In all the reported cases which have arisen since the legislative attempts to blot out the “ landmarks ” and to “ drown out ” the bill of rights, our court has assumed, asa fundamental proposition,that no indictment could be cured or amended in matters of substance ■; and as the cases were those in which the amendments proposed were held to be matters of substance, no decision has or could have been properly made as to how far formal amendments were consistent with the clause in the bill of rights. State v. Goodrich, 46 N. H. 187,188 ; State v. Lyon, 47 N.H. 418, 419.</p> <p>We are aware that a few tribunals in other States, apparently forgetting that they were sitting as a court, have plunged the whole matter into a Serbonian bog, from which neither authority nor text writers have been able to extricate it. In their hands, constitutional guaranties and the “ gladsome light of jurisprudence ” have disappeared in something worse than “ Humboldt’s sink.”</p> <p>III. All the circumstances and facts which constitute the crime must be stated with such certainty and precision that the defendant may be enabled to judge whether they constitute an indictable offence or not, in order' that he may demur or plead to the indictment accordingly ; that he may be enabled to determine the species of offence they constitute, in order that he may prepare' his defence accordingly; that he may be able to plead a conviction or acquittal upon this indictment, in view of another prosecution for the same offence, and that there may be no doubt as to the judgment which should be given if the defendant is convicted.</p> <p>Commonwealth v. Slack, 19 Pick, 307; Commonwealth v. Pray, 13 Pick. 363; Commonwealth v. Wade, 17 Pick. 399; Commonwealth v. Maxwell, 2 Pick. 143; State v. Barrett,42 N. H. 470,471, and cases cited; State v. Pitts, 44 N. H. bottom of page 623 and top of page 624, and cases cited.</p> <p>These facts, being essentials of the offence, must clearly appear on the face of the indictment, otherwise it would be “ like the play of Hamlet, with Hamlet left out.”</p> <p>(1.) Let us dig down to the bed rock, and compare the indictment incidentally with essentials 3, 4, and 5, and directly with essentials 6, 7, and 8, in the light of adjudged cases and the reasoning on which they rest. The offence sought to be charged is a creature of our statute, and consists of something: it does not consist in what is done to the individual, but in what is done to the officer- as such. The distinction between the two classes of cases rests upon solid and enlightened considerations of public policy. The gulf which separated the rich man from Lazarus was not more marked than this distinction.</p> <p>(2.) In general, punishments are imposed upon individuals for of-fences against individuals as such; but in special cases society protects the ministerial agents of its will by punishing with greater severity those who commit an offence against an officer as such, than those who do the same act to an individual. Whatever is not put clearly within the exception necessarily falls under the general rule. The indictment must show clearly upon its face that the respondent is not charged with an offence against an individual, by showing “ plainly,” “ fully,” and “ formally” that he is charged with committing an offence against an officer as such. In order to do this it must set forth clearly his official capacity at the time; for no one, as a rule, is bound to submit to arrest, or heed warrants, however formal, in the hands of a private person.</p> <p>(3.) It must also show as plainly on its face that he did the act “wilfully.” The statute makes this intention essential to the existence of the offence; and the respondent could have no intention to commit a crime against an officer as such, if he did not know that the person he resisted was an officer.</p> <p>(4.) But if essentials 1, 2, 3, and 4 were fully and plainly set forth with appropriate averments, the offence would still be incomplete. The law does not give special protection to one who holds such office, except when he is actually acting in the discharge of the duties imposed upon him by law. Outside of that scope he is merely a private person, and any one may resist him as he may any other unauthorized person. So the indictment, under this statute, must show as clearly that he actually had in his hands and was engaged in the service of a process when resisted.</p> <p>(5.) But even if essentials 1, 2, 3, 4, and 5 were all properly set out, the very knot of the combination — the keystone itself — is wanting from the arch of the offence, unless the process in the officer’s hands was in fact lawful process. The fact of such legality is made up of various minor facts, descriptive essentials, and the legal conclusion thereon. “ The indictment must contain a complete description of such facts and circumstances as will constitute the crime. • A statement of a legal result merely, is bad. BartLett, J., State v. Fitts, 44 N. H. 624.</p> <p>IY. This was intended to be an indictment for “ obstructing an officer ” in serving some kind of a process from a justice of the peace, for' an offence “ against the police of towns.” Under our practice the warrant does not set out the offence, but refers to the “ annexed complaint;” the officer has both the original complaint and warrant in his hands ; lie is bound to take notice of their contents, and judge, at his peril, whether they are lawful or not; he has no more authority than a private person, when no complaint has been made according to law, when no offence known to the law is set forth in it, when no warrant has lawfully issued thereon, or when, if lawfully issued, some requirement of the law has yet to be complied with, before he can make lawful service.</p> <p>The jurisdiction of a justice of the peace in this State is special, and must be shown on the face of the proceedings; nothing can be presumed in favor of the jurisdiction of an inferior magistrate. Flanders v. Atlcinson, 18 N. H. 170 ; Groulding v. Clark, 34 N. H. 159; Cate v. Gate, 44 N. H. 211-215.</p> <p>Y. The acts sought to be charged can only be deemed an offence under certain circumstances, and they should appear on the face of the proceedings.</p> <p>(1.) It should appear, not by way of recital, but by positive averment, that the justice has jurisdiction over the offence. As no justice has any jurisdiction to issue a warrant on a complaint made before another justice, it should appear by like averment that the complaint was “ lawfully” “ addressed ” to said justice.</p> <p>(2.) As no complaint can be a lawful one which has not been properly signed and sworn to by the person making it, it should appear in like manner that the original complaint was signed by the party making it, and that the magistrate issuing the warrant administered to him the oath prescribed by law. There is no sufficient averment in either of these respects.</p> <p>YI. The original complaint was undoubtedly intended for an offence against the police of towns, committed in the territory now embraced in the town of Tilton. Whatever may be the general rule, time, as well as place, was here necessarily an essential of the offence. Both should have appeared by direct and positive averment on the face of the original complaint and of this indictment. But here there is no averment whatever as to time. This defect must have been fatal to the original complaint; it cannot be less so to this indictment. The Gen. Stat. (January 1, 1868) swept from existence the acts which alone, prior to that time, made the act sought to be charged, an offence. For aught that appears in this indictment, this act may have been committed the very day the Gen. Stat. took effect. Let us see how the case would stand under such circumstances. Then the offence sought to be charged in the original complaint must exist, if at all, by virtue of sections 5 and 17, chapter 252, Gen. Stat. Section 17 of that chapter is in these words: “ The preceding sections of this chapter shall be in force in all towns which shall at any legal meeting adopt its provisions, and in all towns in which any of the provisions of chapter 118 of the Revised Statutes are in force.” Whatever else may be in doubt, it is clear that where this chapter is lawfully in force, it is in force only as a statute law. If the town of Tilton, at a meeting legally called and held, saw fit to adopt the provisions of this chapter, it had the right and power to do so ; if it had the right and power to adopt them, it had, by inevitable implication, the same power to reject them. It would indeed be strange legislation which should provide that a town might adopt them if it saw fit, but that a rejection of them should be deemed an adoption. If the offence could only exist by the act of the town, it should appear on the face of the original complaint and of this indictment, that the provisions of this chapter became the law by being adopted by the town at a meeting duly called and holden. State v. Noye«,'80 N. H. 279, 280.</p> <p>But it will not be pretended in this case by the State, that the town of Tilton ever made any attempt whatever to adopt them ; for the truth is otherwise. If it be claimed that the town of Sanbornton once adopted them, and that thereby they became the law of "the town of Tilton, which was created out of Sanbornton, our answer is, that, if so, both the original complaint and this indictment must show such action of the town of Sanbornton, with an averment that they did so become the law of Tilton; and, as a fact, we claim that the proceedings of the town of Sanbornton were too defective and irregular to justify any action under them, and that a law of this character, if. properly adopted by Sanbornton, did not, because Tilton was created out of it, become the law of Tilton. There is nothing in the act which warrants any such interpretation. But we suppose that, as in the court below, the State will claim that although Tilton never attempted to take any action in the matter, and assuming that the proceedings in Sanbornton were too defective and irregular to make it the law of that town, section 5 was in force in both towns by virtue of the last clause of section 17. Such a construction is enough to muddle all human understanding, and results, among others, in the following swarm of legal absurdities :</p> <p>1. That non-action is action — adoption.</p> <p>2. That rejection is adoption.</p> <p>3. That Tilton adopted it because it did not adopt it.</p> <p>4. That Sanbornton adopted it because it attempted to do so, and failed in consequence of a defect in its proceedings.</p> <p>5. That the chapter was in force in Tilton by virtue of a failure to adopt it in Sanbornton.</p> <p>6. That the grant of a power to adopt carries with it no right or power to reject.</p> <p>7. That a grant of a power to adopt is of itself an adoption.</p> <p>Our first answer is, that whatever may be the law in these respects, the State should have spread on the face of the original complaint and indictment the facts which made it an offence in Tilton, so that the respondent might be enabled to make his defence.</p> <p>Our next answer is, that section 17 was merely a condensation of section 11, title 61, act of June 28, 1828, pages 275-6 ; Laws of 1830, sec. 10, chapter 114, page 224 R. S.; and section 12, chapter 120, page 267, C. S.</p> <p>The court will see that there is a wrong citation in the margin of section 17, G. S. It is apparent that the reference is to section 12, chapter 320, O. S., and not to section 12, chapter 119, O. S. It is equally apparent that section 10, chapter 114, R. S., and section 12, chapter 120, O. S., are both incorrect in citation. They both provide that they shall be in force in towns that see fit to adopt them, and those which have adopted any of the provisions of another act of June 23, 1823: whereas, an examination of the original laws put in pamphlet will show that a swarm of acts were approved June 26, 1823, and that only one act was approved June 23, 1823, which had no relation whatever to the matters in hand; while the act referred to by description of its title, with two others, was approved June 28, 1823. Neither the commissioners nor the legislature, in the General Statutes, intended to give to towns the naked right to adopt, with no right to reject. See section 3, chapter 235, G. S.</p> <p>They did not contemplate any such mockery or child’s play as to provide that, whether a town called a meeting or not, or voted to adopt or reject, action and non-action had alike but one legal result, viz., that the provisions would be the law of the town in any event.</p> <p>The truth and the fact is, that section 17 was intended to provide that the provisions of that chapter should be the law of a town in only two cases: First, where any town, at a meeting properly called and holden, might vote to adopt them thereafter, if it saw fit. Second, where any town had, at any time before the General Statutes, adopted any of the provisions of the Portsmouth act, or the other acts which had followed in its train. Any other construction would blot out section 17. No other construction can reasonably be put upon it.</p> <p>The case stands, in our view, in this respect, precisely as if the legislature had provided that it should be a like offence against the police of towns, if a man in the compact part thereof should make up faces at the moon, provided that such town, at a meeting duly called and holden, should vote to adopt this as the law, but not otherwise, and where the town had taken- no action whatever. The question, then, would stand exactly as if no such statute existed. The complaint and warrant thereon would be for an alleged offence, when neither in fact nor in law any offence could have existed, and would be no more protection to an officer than blank paper.</p> <p>VII. A criminal warrant is a judicial writ, and must be under the hand and seal of a magistrate ; otherwise it is not lawful process, and cannot protect the officer. It would be a strange state of the law indeed, that, while the officer is without protection in serving a civil writ issued by a justice of the peace, for a penny, because it was not under seal, he would be protected in serving a warrant, not under seal, for a crime the punishment of which was, until lately, death.- But this indictment does not aver that the original process was under the hand and seal of the justice; nor is there any averment which in legal effect is equivalent thereto. The word “ issued ” alone can have no such effect, for that word cannot be construed as an averment that it was granted by a court of competent jurisdiction ; much less can it be held to aver that it was “ lawfully ” granted by such court. The standard phraseology of the books is, “ duly and legally issued,” “ the same being,” “ a lawful process,” “ legal and judicial process,” or “ duly issued out of,” &c., “ was duly issued out of and under the seal of’ (giving a full description of the court from which it was issued). State v. Bichar d-■son, 38 N. H. 208, middle of page; State v. Beasom, 40 N. EL 374; ' United Slates v. Tinklepaugh, 3 Blatchf. O. C. R. 425-431.</p> <p>YIII. The indictment must show on its face that the original process was “ lawful.” This must be done in one of two ways. First, by spreading upon the record in the indictment at least so much of the original process, that the court, before whom the trial is had, can see the legal substance thereof as clearly as if it had such original process before it, which we have shown has not been done in this case, with averments that the warrant was lawfully granted by a court of competent jurisdiction, and that all the requirements of the law, pre-requisite to the lawful service thereof, had been complied with. In several cases in this State and elsewhere, after the other averments, that the officer was obstructed in the due and lawful execution of his office, in the execution of a certain process (identifying it), follow^ an averment that said process is or was “ as follows,” or “ in the words and figures following, to wit: ” the entire process is then set out verbatim; but in all these cases the indictments have been held insufficient. The reason is; plain: a literal copy of the original process is only one fact; it does not show that the process was lawful; it simply shows that the officer-had a paper in certain “ words and figures ” in his hands; the process; might be a forgery, and he might know it; he might have made it himself, or it might have been issued by a tribunal which had no authority to issue it; or it might not have been properly issued; or in- form for an offence which in law and in fact had no existence. The vital essentials, descriptive of the offence are wanting in the indictment.</p> <p>In U. S. v. Stowell, 2 Curtis C. O. R. 155, which was under the statute of 1790, of which ours of 1791, in its “ charging words,” is a transcript, and in which the indictment set- forth that the obstruction complained of was in the service of a warrant “ duly issued,”' &c., “ by E. G. Loring,” describing his office, &c., Judge Curtis says: “ To constitute an offence under this law, therefore, the obstruction must have been of legal process.” “ It is clear, also, that the indictment must show by proper averments that' the process was legal, not only in form and purpose, but as emanating from some court or office, empowered by law to issue such process.” “ If, as in this case, the officer who granted the process, had by láw only a limited and special authority,, dependent for its existence upon particular facts, every fact necessary for the existence of that authority must either be averred in the indictment, or appear on the face of the process itself.” “ The distinction between such a court and a magistrate having only a special authority,, is settled. In favor of the jurisdiction of the latter the law makes no intendment.” Ib. p. 161.</p> <p>Under this mode, therefore, it is too clear for further argument or illustration, both upon principle and authority, that this indictment is fatally defective.</p> <p>The second mode .is by identifying the process, and then stating it according to its legal effect, to wit, by averring that it was “ lawful process.”</p> <p>If it is possible to settle anything, it has been repeatedly settled in this State that this indictment is vitally defective in this respect also. State v. Scammon, 22 N. H. 46; State v. Beasom, 40 N. H. 873-375; State v. Barrett, 42 N. H. 470, 471; State v. Fitts, 44 N. H. 623, 624.</p> <p>This indictment cannot be sustained without overturning these decisions and the reasoning on which they rest. This indictment does not aver that the original process was lawful, nor does it so describe it that the court can know or say that it was lawful.</p> <p>IX. It is also essential, first, that the indictment show on its face that the “ process,” “ or,” &c., was in a “ criminal case:” second, it is absolutely essential that the indictment should show clearly, by appropriate averments, that such “ criminal case ” was one “ the punishment of which is imprisonment in the common jail and fine, or either.” The statute has provided an ascending scale for the offences of obstructing an officer, in the service of three different kinds of criminal process. These provisions aré in sections 5, 6, and 7, of chapter 259, G. S.</p> <p>The character of the offence in each case depends upon the quantum of the punishment for the crime alleged in the original process to have been committed. The punishment in each case enters into the definition of the offence, becomes one of its ingredients, and is essentially descriptive of it. The indictment must set this forth clearly; otherwise the court could not pronounce sentence, because it could not determine from the indictment which of the particular offences had been committed, nor what sentence it was its duty to impose. This indictment contains no such averment; its defects are fatal; it is a tub without a bottom; it holds nothing.</p>

Replevin, brought by J. H. Sleeper & Go. against J. D. Osgood, for goods, wares, and merchandise, taken by said defendant, at Warren, in the county of Grafton, on the 26th day of July, 1870. The writ was made returnable to, and was entered at this term in said county of Belknap.

In Equity. This is a bill brought by the county commissioners of the county of Rockingham against the defendants, a committee of the county convention, to restrain them from interfering in the purchase of furniture and other articles for the county poor farm.

In Equity. This bill is brought to determine the location and boundaries of a tract of land consisting of five acres, devised by James O. Pickering to the plaintiff, Abby Pickering, and to restrain the defendants from the destruction of the ancient landmarks and the confusion of lines and boundaries.

<p>The facts relating to this case are sufficiently disclosed in the opinion of the court.</p>

Assumpsit, by Thomas J. Parsons, Richard Jenness, and Albert R. Hatch v. Geo.

Indictment against Hiram Jones for the murder of his wife. The defendant was found guilty of murder in the first degree, upon the following indictment: * * * * * * “ That Hiram Jones, of Newmarket in the county of Rockingham aforesaid, yeoman, on the fourth day of June, in the year of our Lord one thousand eight hundred and seventy, at Newmarket in the county of Rockingham aforesaid, with force and arms, in and upon, one Ann Jones, feloniously, wilfully, and of his malice…

<p>A mortgage of personal chattels without the affidavit required by law, is valid against a subsequent mortgagee having notice that the prior mortgage was made in good faith and for a full consideration.</p> <p>Machinery in a mill, and so far affixed that it would pass by a deed of the real estate, may nevertheless be severéd from the realty and be the subject of a valid mortgage of personal property.</p> <p>Where a bill in equity to redeem a mortgage alleges a tender of the amount and brings the same into court, and also states that the mortgagee has received the rents and profits of the mortgaged property, and prays that an account may be taken of such rents and profits and of the amount due on the mortgage debt, and that plaintiff may be permitted to redeem; and also prays for general relief, — it was held, that a demurrer to the whole bill would not lie, on the ground that inconsistent modes of relief were prayed for.</p> <p>The allegation of notice and knowledge in the subsequent mortgagee that the prior mortgage was made upon full consideration and in good faith, is sufficient without alleging actual fraud in such subsequent mortgagee.</p> <p>Where the plaintiff denies the right of the second mortgagee to contest the prior mortgage for the want of the affidavit, and the bill alleges that the note for which such mortgage was given was without much if any consideration, and fraudulent and void, but did not state that it was wholly without consideration, the court required the bill to be amended.</p>

<p>Powers of county conventions.'</p> <p>A county convention may adjourn during the session of the legislature, to meet at any place in its own county, and. at any time during its official year ; and any acts done by said convention at such adjourned meeting, if within the scope of its general authority, will be valid and binding.</p>

<p>Where B seized A by the arm and swung him violently around two or three times, then letting him go, and A having thus been made dizzy, involuntarily passed rapidly in the direction of and came violently against C, who instantly pushed him away, and A then came in contact with a hook, and sustained an injury, — held, that A might maintain trespass vi et armis against B.</p> <p>There was no error in the following instructions to the jury: “That they should inquire who was the first actor or the procuring cause of the injury to A; that B would be liable if the wrongful force which he gave A carried him on to the hook, or if such force, combined with the new force given to him by C, produced the result; but if the jury should find that the injury received by A resulted entirely from the push of C alone, unassisted by the act of B, then B would not be liable; or, in other words, if the original force given to A by B had ceased, or time was given to C for reflection and deliberation before he gave Lis push, then B would not be liable; that the jury should determino whether the force, originally commenced by B, did at any time cease, and whether it was not directly continued up to the time A struck the hook by the direct agency of B, C lending his aid wittingly or unwittingly to the injury, or whether C, by pushing him from his person, did more than to act in self-defence, and was not justified under the circumstances, in order to save his person and himself from present danger; that the jury should determine, also, whether, from the time ■ A wna first seized by B and until the injury was done, he could exercise any self-control over his own person, or could in any way have prevented what happened to him.”</p> <p>Where an injury is the result of two concurring causes, one party in fault is not exempted from full liability for the injury, although another party ' may bo equally culpable.</p>

<p>Defendant having given his notes, secured by a mortgage of real estate, to one C., afterwards sold the land to H. B. S., who agreed, as part of the price, to pay off this mortgage. H. B. S. died, and his executor procured the plaintiff to advance the money and take the defendant’s notes as security, and this was done to redeem the land from this incumbrance, both the plaintiff and the executor having notice of the testator’s engagement to pay the mortgage debt.</p> <p>It was held, that if the transaction was really a purchase of the notes, the -plaintiff could enforce payment against the defendant; but if the money was advanced to the executor to pay off the mortgage, and he did pay it, and afterwards gave the plaintiff the defendant’s notes as security, the law would be otherwise.</p> <p>If, however, the plaintiff can enforce payment against the defendant, the latter, standing in the light of surety for H. B. S., would by proceedings in equity entitle himself in some form to make application of the land on which the plaintiff has a lien, upon the principle of subrogation ; but these facts could not be set up as a defence to a suit at law on these notes.</p> <p>If the plaintiff, with knowledge of the relations of the defendant to this mortgage debt, voluntarily released the mortgage security, he would be liable to account to defendant for the value of that security.</p> <p>The agreement by H. B. S. with defendant to pay this mortgage debt, is not within the statute of frauds.</p> <p>Parol evidence of such an agreement is admissible, notwithstanding the deed may acknowledge payment of the price in full.</p>

Assumpsit, by Moses Dudley against George Spaulding. The officer returned that he had attached real estate, and left at defendant’s usual place of abode a summons, as prescribed by law, with his name and office endorsed thereon.

Case, by John L. Swett against Edwin Cutts. The first count of the declaration alleges that plaintiff is the owner of a tract of land west of and contiguous to a highway, and bounded on the north by defendant’s land; that “ there is, and from time immemorial has been, along the westerly margin of said highway, contiguous to the land of the said defendant and the said described tract of land of the said plaintiff, a certain ditch or water-course, in which, in seasons of rain…

Case, by Hezekiah M. Severance against Sullivan W. Healey and others, defendants, as selectmen of the town of Washington, for refusing to put the name of the plaintiff on the check-list of voters in said town at March meeting, 1868. Plea, not guilty.

Case, by Edmund Dole against Beuben Johnson, Jr., for suffering the defendant’s fence to be insufficient, whereby the defendant’s sheep got into the plaintiff’s close and communicated to the plaintiff’s sheep the disease called the “ foot-rot.” The defendant contended (among other things) that foot-rot might be spontaneous.

Indictment against Eugene Straw, Darwin Wright, and Frank Wright, for an assault alleged to have been committed May 28, 1870. The respondents offered the wife of Eugene Straw to testify where her husband was at the time of the alleged assault; but she was excluded, subject to exception. Verdict, guilty. Motion to set aside verdict. Case reserved.

This case was tried by the court at the March trial term, 1868. The writ was dated Nov. 7,1865. The action was debt on a judgment set up in the declaration as rendered by the common law and chancery court of the city of Memphis, Tennessee, Feb. 14, 1865, being one of the days of the February term of said court, for $3,901, and costs of the proceeding taxed at $7.75. Defendant pleaded nul tiel record (payment, and nil debit).

Assumpsit, by Curtis C. Clark against Robert Whitaker, upon a note for ninety dollars, dated October 3, 1868, payable sixty days after date to Charles Stinson or order, and indorsed in blank by Stinson. The defence was, that the note was obtained by fraud, as a part of the consideration for the sale of a recipe for making fluid gas, and that before it was indorsed the plaintiff had knowledge of the failure of consideration.

Assumpsit, by Arthur Knapp against Reuben Hobbs, for money had and received. Plea, the general issue. The suit was brought to recover the price of an ox mortgaged, with others, by one Huckins, to the plaintiff, and taken afterwards by the defendant, and sold by him, and the price paid to him.

This is an action of trover, by Charles Houston against Westley H. Clark, for sundry articles of household furniture and wearing apparel, the conversion being alleged on June 10,1869. It appeared that the defendant married the plaintiff’s daughter, November 5,1868, and that she then owned the property in question, most of which was given to her by the plaintiff.

Assumpsit, by Hezekiali Parsons against James B. Brown, upon a negotiable promissory note which is endorsed by the payees.

Replevin, by Grenville A. Mitchell & a. against Moses Roberts, for one horse, sleigh, harness, whip, and buffalo robe.

Writ op Entry, by Mary C. D. Hutchins, plaintiff in review, against Henry Heywood, administrator of Samuel Wesson, to recover certain land in Lancaster village. Original writ dated June 25, 1866. Held: where the purpose of creating the trust is, as claimed in this case, to hinder, delay, and defraud creditors. By the statute in force at that time, and still ixx force, an attachment of real estate holds all the debtor’s interest in the same to satisfy .the judgment — Kev.

The action was assumpsit, by Thomas Hammond against Mary C. Corbett and trustee, for the price of wood furnished her for her own use; and the verdict was for the plaintiff. Held: unless the principal defendant could have sustained an action against the trustee, and have had the fruits of it as her own; and the agreed facts of the case will warrant no such conclusion.

<p>Indictment, for breaking and entering the dwellingdiouse of one James Call in the night-time, and stealing a gold watch and chain. Verdict, guilty; and motion of the defendant for a new trial. The evidence tended to prove the following facts. The house had been broken and entered in the night. The next morning, when the watch and chain were missed, the house occupied by the defendant was searched, and the watch and chain were found (with two bits, a chisel, and a spirit-level, which belonged to Call, and which he had kept in his shop in front of his house) in a straw bed owned by one Howe, the father of Mrs. Call, in a back chamber adjoining the room in which the defendant slept. There was no access to the back chamber, except through a door which led into the defendant’s sleeping-room. The back chamber was not hired or occupied by the defendant; but Howe and Call kept sundry things there, and they and others had access to it occasionally. It was not under lock and key. To enter it, it would be necessary to go through the lower kitchen, occupied by the defendant, then through an entry, and up a pair of stairs, and through his sleeping-room. In his bed in his sleeping-room, under the pillows and under the sheets, was found a small piece of upper leather which Call claimed, and which the defendant admitted he had stolen. The defendant also admitted he had stolen some sole leather from Call, which he had used in tapping his boots, saying he had taken the leather to get even with Call. The defendant had worked for Call, and had had some difficulty with him about his labor.</p> <p>The defendant excepted to the refusal of the court to instruct the jury that the evidence was not sufficient to authorize a verdict against him.</p> <p>In this case, the State relies on the possession, by the respondent, c the articles alleged to be stolen, for conviction on the charge of breaking, entering, and stealing, set forth in the indictment. Possession oi stolen goods, which will justify conviction, must be recent and exclusive. 3 Greenleaf s Ev., secs. 31, 32, 33 ; 2 Starkie’s Ev. (2d Am. ed.) 840, note ; Best on Presumption of Law and Fact, pp. 307, 308, secs. 229, 230.</p> <p>In this case, the State has not actually proved either possession by i the respondent of the articles alleged to be stolen, or occupancy of the ' room in which they were found, much less exclusive possession.</p> <p>On the contrary, it is in proof that they were found in a straw bed owned by a Mr. Howe, — father-in-law of James Call, the complainant, and a witness in,this case, — in a room neither rented nor occupied by' the respondent, but which was actually occupied by Howe and Call, and to which they both had free access. The wife of the respondent, a person of sufficient age to be capable of committing the alleged crime, had also access to the room in which the articles were found. Other persons had access to the house of the respondent, and of course to the same room. On the evidence, if the respondent were charged with having received the articles as stolen goods, he could not be convicted. If he could not be convicted of .the lesser, ought he to have been convicted of the greater crime ?</p> <p>The evidence, tested by legal principles, seems not to be sufficient to remove all reasonable doubt of guilt, and to authoi’ize a verdict of guilty against the respondent.</p> <p>And. whatever may be the moral probability of guilt (which is not admitted in this case, but which is rebutted by the actual facts proved), the great principles of law, which secure and protect the personal liberty and reputation of the citizen, will undoubtedly be upheld and maintained by this tribunal.</p>

Woodward, on John W. Flanders, the son of complainant, at Hill, N. H., July 7,1870. Plea, not guilty. It appeared that a difficulty arose between respondent and said John W. Flanders, in the fall or early winter of 1869, at which time hard words passed between them, and each claimed that the other was mainly in fault, and each claimed that the other laid up a grudge against him from that time, which led, in part at least, to the trouble on July 7,1870.

<p>Under sec. 7 of chap. 230, Gen. Statutes, the deposition of a trustee may be taken before the return day, without giving notice of the taking to the principal defendant.</p>

<p>Upon the discontinuance of a highway, damages may be awarded, under sec. 3 of chap. 65, Gen. Stats., to a land-owner whose land did not abut on the highway.</p>

This was a petition of Augustus E. Moulton, administrator, for leave to appeal from the decree of the judge of probate. The facts are sufficiently disclosed in the opinion of the court. The petitionees say that the prayer of this petition ought not to be' granted, for the following reasons : 1. Because Messrs. Marshall & Chase had no authority from Ezra Carter, Sr., to claim, an appeal in his behalf.

Trespass, by Moses Brown against Parker Brown, for breaking and entering the plaintiff’s close, between January 1,1869, and the date of the writ, March 13, 1869, and breaking down his fences, &c. The defendant pleaded the general issue, and also that at the times when, &c., there was a highway over and across the plaintiff’s close upon which all the inhabitants of the State had the right to pass, subject to gates or bars to be maintained by the defendant and others ; and…

<p>Plene administravit is not a good plea to an action of debt brought in the name of the judge of probate on an executor’s bond.</p> <p>Chapter 208, section 4 of the General Statutes, only allows double pleading as far as the replication. Two rejoinders to a single replication are therefore inadmissible.</p> <p>Any pleading- which introduces new matter by way of confession and avoidance, should regularly conclude with a verification, and not to the country.</p> <p>The rejoinder should support the plea, and not introduce matter which constitutes a departure -from the plea.</p> <p>Objections to the form in which the statement of the claim was indorsed on the back of the writ come too late after the defendant has pleaded generally to the declaration, and issues have been joined.</p> <p>A replication to a plea of omnia performavit, in such cases, which states in detail sufficient facts to show that the defendant was guilty of fraudulent conduct in the sale of real estate, is sufficient under Gen. Stat., ch. 182, sec. 12.</p>

Petition of William B. Burnham and others against Goffstown and Dunbarton for a highway in said towns. The petition was filed April 2, 1870, and an order of notice was issued, returnable to May term, 1870, at which term the following order was entered on the docket: “ Referred to commissioners of Merrimack and Hillsborough counties. All the commissioners being disqualified except Enoch Page, the court appoint the following committee: James Scott, Wm.

Writ oe entry, brought by Harmon A. Miles against Samuel M. Pennock, to recover land in Nashua. The parties agreed upon the following facts: On the 22d of April, 1867, the premises were owned by Silas P. Dean. On that day the defendant attached the premises to secure a debt due from Dean and Strickland as co-partners; he subsequently recovered' judgment, and extended an execution on the premises.

Trespass qu. el., by Joseph M. Andrews against James P. Todd. Plea, soil and freehold. The premises were part of a farm of one Issachar Andrews, who died in 1863; plaintiffs are all of his children and heirs.

Assumpsit, by Gilman Scripture against the Francestown Soapstone Company, for not delivering to the plaintiff certificates for forty-five shares of the capital stock of the Francestown Soapstone Company, alleging that the plaintiff purchased those shares of Frederick A..

Cass, by David Ash against William H. Cummings and others, for flowing plaintiff’s land. Held: in very many cases, that it is for the court to adjudge what are public uses, while it is the exclusive province of the legislature to determine whether the exigency is such as to warrant this taking of private property therefor — whether this use will be for the public benefit, and so greatly for the public benefit as to warrant the…