Volume 53 — New Hampshire Reports

<p>1. Article VI, in the bill of rights of the N. H. constitution, while it empowers the legislature to authorize the several towns, parishes, bodies corporate, or religious societies within the State, to make adequate provision, at their own expense, for the support and maintenance of public protestant teachers of piety, religion, and morality, does not directly, and was not intended to, and does not by implication, forbid the legislature to authorize such towns, &c., or religious societies, to make provision for the support of any other religious teachers besides protestants.</p> <p>2. Under Sec. V of part second of said constitution, the legislature is as fully empowered to authorize such towns, parishes, bodies corporate, or religious societies, to make provision for the support of any other religious teachers besides protestants, if they think it for the welfare or benefit of the state to do so, as it is by Art. VI of part first to make provision for the support of protestant teachers.</p> <p>3. The third paragraph in Art. VI of the bill of rights, which declares that every denomination of Christians demeaning themselves quietly, <&e., shall be equally under the protection of the law, and that no subordination of any one sect or denomination to another shall ever be established by law, was designed to show that, although the framers of the constitution had a preference for the protestant religion rather than the Roman catholic, and were willing to encourage the former as far as consistent, yet that they held the rights of conscience of both to be alike and the same. The same rights of conscience are guaranteed to all.</p> <p>4. Articles XIV, XXIX,-XLII, and LXI, of part second of the constitution,, providing that the governor, councillors, senators, and representatives-must be “of the protestant religion,” were designed to require a positive and affirmative test, and not merely the negative qualification of not. being a Roman catholic.</p> <p>5. The right of holding these offices is a civil or political right, which may be surrendered to the government or to society in order to secure the protection of other rights (Art. Ill, bill of rights), or the government may abridge or take away such rights for sufficient cause; for though such rights may be considered as natural rights (Art. II, bill of rights), yet they are not of the class of natural rights which are held tobe “unalienable,” like the rights of conscience. (Art. IY, bill of rights.)</p> <p>6. The rights of conscience, which are held to be not only natural, essential, and inherent (Art. II, bill of rights), but also “unalienable,” not capable of being surrendered voluntarily, or of being taken away or abridged by the government, “because no equivalent can be given or received for them ” (Art. IY, bill of rights), are set forth and declared specifically in Art. Y of the bill of rights; and nothing contained in Art. YI of the bill of rights, or in any other article of the constitution, was intended to conflict or interefere with, or to modify the declaration of the rights of conscience there made.</p> <p>7. The term Christian in our constitution is used in its ordinary sense, to designate one who believes or assents to the truth of the doctrines of Christianity, as taught by Jesus Christ in the New Testament.</p> <p>8. The term jn-otestant is used in the same instrument in its ordinary sense, meaning to include all Christians who deny the authority of the pope of Rome, — Christians in this country and in western Euroj>e being divided into Roman catholic and jwotestant.</p> <p>9. But neither the term Roman catholic nor protestant is broad enough to include any who do not, nominally, at least, assent to the truth of Christianity as a distinct system of religion; — a Mahometan, a Jew, apagan, or an infidel cannot properly be called either a catholic or a protestant, not being a Christian.</p> <p>10. The political or conventional use of the word Christian, denoting one who assents to the truth of the doctrines of the religion of Christ, or who, being born of Christian parents or in a Christian country, does not profess any other religion or belong to any of the other religious divisions of men, is the sense in which the word is ordinarily used in constitutions and statutes and legal documents, and referring to those commonly known as nominally Christian, rather than to those who, professing the faith of some particular church, are termed Christians, in the theological or sacred sense of the term.</p> <p>11. But when the children of protestant parents, or those born in a protestant country, renounce that religion, and voluntarily elect and adopt and profess some other religion, they cannot any longer be reckoned or assumed to be of the protestant religion; and so of all the denominations of Christians, and all other systems of religion.</p> <p>12. By .the act of 1819, all power to build meeting-houses and to support religious teachers was taken from the towns where it had been placed by the law of 1791, and was conferred upon religious societies; and any religious sect, as well as any denomination of Christians, was authorized to form such a society.</p> <p>13. Under the acts of 1819 and 1827, religious sects or denominations of Christians were alone authorized to form religious societies, and the limited corporate powers that were conferred upon them did not in any way take away or change their character as sectarian or denominational socities.</p> <p>14. When a society, of a particular religious sect or denomination, is formed with a strictly sectarian or denominational name descriptive of the fundamental doctrines of the sect to which it belongs, it will be presumed that it was constituted for the purpose of promoting the vital and fundamental doctrines of such sect or denomination.</p> <p>15. In sue jase, where a conveyance is made to, or a trust created for the benefit m use of such religious society, by its denominational name, with no other particular designation in the deed of the tenets or doctrines which it is to be used to advance and support, the denominational name may be a sufficient guide as to the nature of the trust, so far as respects doctrines Avhich are admitted to be fundamental.</p> <p>16. In such case, those having control of property held in trust for the benefit of such religious society may be restrained from applying the property, or the use of it, to the promotion of religious tenets and doctrines clearly opposed and adverse to the fundamental doctrines and faith of such sect or denomination, at the time, and -immediately after, such trust was created.</p> <p>17. Where the original trustees, appointed by the founder of a religious charity or trust, applied the fund to the support of certain religious doctrines, and that application had been long continued, and had always been acquiesced in by the founders of the charity or trust, a court of equity will not allow such application to be changed or interfered with, unless such change is clearly required by the plainly expressed intention of the donor.</p> <p>18. It is not the province of courts of justice to decide or to inquire what system of religious faith is most consistent, or what religious doctrines are true or what are false, in any case, and it seldom becomes necessary for courts to discuss or to examine the creeds, or confessions, or systems of faith of the different religious sects, in determining questions of law except in cases where they are called upon to see that a trust or charity is administered according to the intention of the original founders.</p> <p>19. A Congregational society is usually made up of the church with which it is connected, and of those who worship with the church and assist in supporting the preaching and public worship of the church; and though the minister is settled by the society, he becomes the pastor of the church as well as of the society, and the society generally has no creed or published religions opinions distinct from the church; and to find what are the religious opinions of a Congregational society, we must look at the creed, or confession, or doctrines of the church with which it is connected, which is the centre and foundation of the whole. This holds true of all who adopt the distinctive Congregational polity, whether known as orthodox Congregationalists, Baptists, and others, or those known as liberal Congregationalists, such as Unitarians, Universalista, and others.</p> <p>20. In case of a division of a religious society or corporation, where both parties still adhere to the tenets, doctrines, and discipline of the organization, the property should be divided between them in proportion to their numbers at the time of the separation.</p> <p>21. Members who secede from a church organization or a religious society, thereby forfeit all right to any part of the property, rights, or privileges of such church or society.</p> <p>22. Whether there has been a secession from a church or religious society is a question of fact, to be settled upon evidence of the acts and intention of the parties.</p> <p>23. Deists, theists, free religionists, and other infidels, though they may be Unitarians in some sense, are not Unitarian Christians.</p> <p>Doe, L, dissenting.</p>

Assumpsit, by Cyrus Eastman against Curtis O. Clark, Damon T. Clark, and Nicholas T. Stillings, to recover a balance alleged to be due for three hundred and seventy-five bushels of corn sold by the plaintiff to the defendants in the summer of 1864. The two first defendants were defaulted, and Stillings pleaded the general issue.

Trespass, by Robert O. Fay & wife against O. A. Parker, for an assault and battery upon Mrs. Fay. Verdict for the plaintiffs, and motion of the defendant to set it aside.

<p>Debt, by Arthur R. Aldrich against Wells Wright, to recover the penalties prescribed by sec. 2, chap. 251, General Statutes, for killing-minks. The defendant admitted the killing of four minks, but alleged, in justification, that the animals were at the time pursuing his geese.</p> <p>The only evidence in the case was the testimony of George W. Blood, who, in common with the defendant, owned a small goose-pond. The dividing line between the premises of the witness and the defendant was the brook running into this pond; and the houses occupied by the witness and the defendant were on the opposite sides of the brook and but a few rods distant therefrom. The witness testified as follows: “ I stood in my dooryard; heard the geese cackling ; I came out on to a little knoll; I saw the four minks swimming towards the geese ; some of the geese had then got on to the shore of the pond and some of them were in the water; the minks were from one to three rods distant from the geese; some of the geese within a rod of the minks, who were one old mink and three young ones, but all about the same size. As soon as the minks saw me they stopped pursuing the geese, and ran out upon-a little island and there stopped. At the same time that I came out the defendant also came out with his gun; he came out near the end of a causeway that is laid across the lower end of the jsipnd, and fired at the minks on the island, killing them all at one shot; the minks were all on the island when he fired; the defendant carried the minks off to his house ; the geese were six old ones, and eight young ones about half grown; geese had run in the pond two or three summers ; never knew of any mink chasing any geese there before or since; don’t know whether minks are accustomed to kill geese or not.”</p> <p>A verdict was taken for the' plaintiff by consent, subject to the defendant’s exception to .a pro forma ruling that the defendant would not be justified in killing the minks if the geese were not in imminent danger, and could have been protected either by driving away the geese, or frightening or driving off the minks.</p>

<p>Persons and property annexed to a school district in an adjoining town are subject to school-house taxes in the district to which they are annexed, and not elsewhere, although, previous to such annexation, the . town, within whose limits they were, constituted one school district; and if the town or city containing the district to which they are annexed be subsequently consolidated into one district, they will be subject to school-house taxes therein, and not elsewhere.</p> <p>A farm situated in an adjoining town having been annexed to a school district in Portsmouth for school purposes, a subsequent act, providing that Portsmouth shall constitute one school district, was construed as meaning that Portsmouth (as now existing for school purposes) shall consti- ■ tute one school district.</p>

Assumpsit, hy Niel, Tarleton & Co., against Winslow T. Perkins, principal, and Joshua Varney, trustee, upon an account annexed. Action entered February term, 1872, at which time no appearance was entered by request of principal defendant; but, at the request of the trustee, their counsel entered an appearance for defendant and trustee. The deposition of the trustee was not taken before the return term, and no attempt was made by any one to take it.

<p>The record of a judgment of a foreign state is inadmissible in evidence, unless accompanied by a certificate of a judge that the clerk’s attestation of said record is in due form, according to the act of Congress, 1 H. S. Stat. 122.</p>

<p>The doctrine of State v. Foster, 23 N. H. 348, and other cases, as to the burden of proving negative averments in indictments for the illegal sale of liquor, considered upon an equal division of the court.</p> <p>When the court is equally divided upon the question of rendering judgment on a verdict in a civil cause or misdemeanor, the verdict is generally to be sustained, except in case of exceptions to proforma rulings or instructions.</p>

TO THE SUPREME JUDICIAL COURT — belknap ss. The town of Sanbornton, in said county, complains against Solon A. Carter, of Concord, in the county of Merrimack, treasurer of the state of New Hampshire, and the town of Tilton, in said county of Belknap, and says, that, by virtue of the act of the legislature of said state, passed at the June session, 1870, entitled “An act to authorize a reimbursement of the municipal war expenses,” and of the act in addition thereto, passed at…

Trespass, by Albert H. Brown against Lester Collins, to recover the value of a stone post on which was a street lamp, situated in front of his place of business in the village of Tilton. The post stood upon the plaintiff’s land, but near the southerly line of tlie main highway leading through the village and within four feet of said line. There was nothing to indicate the line of the highway, nor any fence or other obstruction between the highway, as travelled, and the post.

1. This indictment — State against Sarah Hastings — alleged that the defendant did “ falsely make and counterfeit” a certain writing therein set forth ; whereupon the defendant objected to that part of the indictment, on the ground that the same ivas a double pleading, and did not “ fully and plainly, substantially and- formally, describe to ” her the offence of which she was accused. The court overruled the objection,'to which ruling the defendant excepted. 2.

<p>The health officers of a town have no authority to make the town liable for medicines and. medical services furnished to inhabitants who are not paupers.</p>

<p>One O., residing in the town of H., but having no legal settlement in any town in this state acquired since Jan. 1, 1840, died in 1845, leaving a widow and a minor daughter, one C. The widow and child continued to reside in H. till 1849, when the former married with one L., then residing and having a legal settlement in the town of W. The mother and child then removed to the house of said L., and continued to reside there until the child C. married with one R., who had no legal settlement in any town in this state at that time, nor at any time since. Held, that the town of W. is chargeable for supplies furnished to said O. and her minor children, as paupers.</p>

This was a petition for a writ of mandamus to John F. Jones, towmclerk of Hopkinton, requiring him to amend his record and return of the votes given in for representative in congress, in said Hopkinton, at the election held on the second Tuesday of March, 1873.

<p>Evidence that the defendant, the keeper of the Sherman House, kept spirituous'liquor for sale there, at a certain date, has a tendency to prove that the defendant, still keeping the Sherman House, kept spirituous liquor for sale there at a later date.</p>

<p>A person indicted for the crime of murder in the second degree is not entitled to be furnished with lists of the government witnesses, or to challenge twenty jurors peremptorily.</p> <p>The foreman or any member of the grand jury may be called and com^ pelled to testify what a witness stated before the grand jury, for the purpose of contradicting such witness, or for any other purpose, when in the opinion of the court the cause of justice requires it to be done.</p> <p>When a piece of testimony is offered, the court may in its discretion hear the arguments for and against its admissibility openly in the presence of the jury, or privately.in the absence of the jury; and after the testimony has been ruled in, no exception lies upon the ground that such discussions were in the hearing of the jury.</p> <p>A physician, testifying as an expert, may give an opinion founded upon his' reading and study alone.</p> <p>An indictment, which charged that the respondent produced an abortion “with a certain instrument to the jurors unknown,” is sufficient, and so is the proof if it sustains that- charge.</p>

Assumpsit, by Sarah E. Dutton and one Coggleshall against Rice & Peck. The declaration was special, upon a written contract with promises to the plaintiffs, and the plaintiffs were described in the writ as partners. The defendants pleaded in abatement the non-joinder of the husband of Sarah E. Dutton, and to this the plaintiffs demurred. The questions of law were reserved.

Assumpsit, by John A. Riddle against Littlefield & Hayes, for the use and occupation of a certain part of the building of the plaintiff… Held: for they were bound to take notice of the precise occupancy by Dunlap at the time the lease was executed, — which occupancy was, as the case finds, restricted to the inside of this south wall; for its outside (the premises in dispute) was then claimed, rented, and let by the plaintiff for his own use, — posting bills, &c., — with the…

Assumpsit, by James Curtis against John Egan, on account annexed. Plea, the general issue, and statute of limitations. Replication, a new promise. Yerdict for the plaintiff; and motion of the defendant for a new trial.

<p>Where a town is divided by the legislature, part of its territory aud inhabitants being created a new town, none of the property, real or persona], of the original town belongs to the new corporation, except as expressly provided in the act of separation.</p> <p>In 1856, the town of M. received from John Boynton the sum of $10,000 as a fund for the support of its public schools, on the express condition that, unless the income thereof should be forever divided and applied according to the number of scholars between the ages of five and fifteen in the several schools or districts in town, the fund should be repaid to the donor, his executors, administrators, or assigns. In 1872 the town of G. was created by act of the legislature out of part of the territory and inhabitants of M., and it was provided that all property, real and personal, and all school and other funds belonging to the original town of M., should be divided in the proportion of seven to M. to thirteen to G. Held, that the legislature had no power to direct a division or distribution of the fund different from that ordered by the donor ; and that, therefore, no legal provision for the division of the fund in controversy being made, the rights of the town of M. therein were unaffected by the act, and the new town of G. was not entitled to any portion of the fund ^ or income.</p>

<p>Amendment, Construction of Contracts, Conditions Precedent and Subsequent.</p> <p>When the nominal promisee is an agent, having a beneficial interest in the performance of the contract, or a special property in the subject-matter of the agreement, the legal interest and right of action are in him.</p> <p>So, where a promise is made to one sustaining the character of trustee, he and not the cestue que trust is the proper person to bring an action upon it.</p> <p>Where a subscription is made upon several distinct and separate conditions, these conditions must all be performed before the subscription can be collected.</p>

Petition of Harrison G. Rice and others for a new highway in Rindge. The highway petitioned for runs from the house of Lyman Hale to the state line, by the east side of the Monomonack pond, a distance of about two miles. No person lives on the route, and there is, as yet, no road laid out in Massachusetts with which it connects.

Appeal, by David McLaughlin, guardian of Charles A. Newton, against Francis J. Newton. The following facts were agreed: The appellee, in this case, is administrator of Charles L. Newton, late of Unity, in the county of Sullivan, deceased, having been appointed as such administrator on the 11th day of February, 1865, and duly accepted said trust by giving bond according to law. The said Charles A. Newton is heir-at-law of said Charles L. Newton, deceased.

<p>Co-administrators, who give a joint bond as security for faithful administration, are jointly liable as principals for waste committed by either, though without fault upon the pai-t of the other.</p>

This was a bill in equity, by John Currier against the Continental Life Insurance Company of Hartford, Conn. By policy, dated November 14,1865, the defendants assured the life of the plaintiff’s wife, in the amount of $5000, to be paid to the plaintiff. The plaintiff was to pay an annual premium of $572.70, on or before November 15 in each year, for five years.

Case, by Benjamin F. Holden and others against Winnipiseogee Lake Cotton & Woollen Manufacturing Co., for disturbing the natural flow of Newfound river, between May 7,1867, and the date of the writ, September 18, 1870. 1.

Assumpsit, by Joseph Kidder against Uriah H. Kidder, for money paid, etc. Plea, the general issue. It appeared that, on November 10, 1866, the plaintiff and the defendant purchased together a piece of land in New Jersey for $700, and took a deed of it running to them jointly.

<p>The notes described in the condition of a mortgage were, — “Two notes for 1150 each.” One note produced in evidence was for $150, the other for $200, but in all other respects they corresponded with those described in the mortgage. Held, that, if it appeared by parol evidence that those two notes were the ones which the parties, in good faith, intended to secure by the mortgage, it would be a valid instrument to secure both notes.</p> <p>If the parties to such mortgage and notes had knowledge of the fact of such discrepancy at the time of the execution of such mortgage, that would not necessarily render the mortgage void; but that would bo a circumstance for the consideration of the jury, upon the question of the good faith of the parties in the transaction.</p>

<p>Upon the trial of an action, it became a material question whether the son of the defendant, as agent for his father, agreed with the plaintiff that a trade concerning a yoke of oxen should be rescinded. The plaintiff called the son of the defendant as a witness, who testified that he went to see the'plaintiff “ for my father; whatever I said was what my father told me.” He then testified as to what was said and done. The plaintiff was then permitted, subject to the defendant’s exception, to testify, in contradiction of the defendant’s son, as to what was said and done on the occasion referred to. He was also allowed, subject to exception, to offer evidence that the defendant’s son had previously stated the facts in a different manner. There was no collusion between the plaintiff and the defendant’s son, who was hostile to the plaintiff and friendly to the defendant. Held, that there rvas no error in the admission of any part of this evidence.</p>

Petition for partition, by William D. Spaulding against Jason H. Woodward, of a certain pasture.

Debt, by “ Richard P. Kent, George A. Cossitt, and George O. Rogers, the health officers of the town of Lancaster, who' sue this action as well for the county of Coos as for themselves,” against Hosea Gray, for penalties under Gen. Stats., ch. 101, sec. 8. At the July term, 1872, it was decided, on demurrer, that sec. 1 of ch. 248, Gen. Stats., authorized the action to be brought by one person only, and that it could not be maintained by three plaintiffs.

<p>In this state, in suits on penal statutes, double pleading is allowable.</p> <p>In a suit to recover usury-penalties, a count which alleges the receiving of illegal interest for the use of a sum of money “for the space of six months,” but does not specify for what particular six months the usurious interest was received, is bad. The entire offence of receiving usurious interest, at different times (previous to the commencement of legal proceedings), upon the same contract, constitutes but one cause of action under section 3, chapter 213, General Statutes; it cannot be split into separate suits, nor into separate counts of the same suit.</p> <p>In a suit to recover, under different counts, for receiving usurious interest at different times, a plea, which states that all the interest alleged to have been received was received on the same contract, must bo in abatement ; such a defence cannot be set up by a plea in bar.</p>

This is an action on the case for a libel, by J. N. Carpenter against J. H. Bailey, the writ bearing date September 21, 1859.

In Equity, the following facts appeared at the hearing: July 19, 1765, the town of Newington purchased of Nicholas Knight about twenty acres of land in said town, and appointed Joseph Patterson and Benjamin Adams to take a deed thereof, which they did, in their own names.

The question in this case is, whether the bill of the plaintiffs (Jame, D. Slott and James Slott) should be allowed against the county oi Rockingham, and if so, at what sum, upon the following statement of facts : One Felch, a prisoner-in jail at Exeter on criminal process, was taken sick with small-pox. Eelch belonged to Seabrook. The sheriff of the county notified the selectmen and health officers of Exeter, and requested them to remove him..

Assumpsit, by Joseph Pinkham against George E. Mattox. Writ dated August 13,1872.

Assumpsit, by B. Franklin Parker against Winslow T. Perkins & Trs., on a promissory note made by the defendant, and payable to the plaintiff, dated May 1,1867, for tlie sum of $900 in thirty days, value received. J. M. Chamberlain & Co., as subsequent attaching creditors, were admitted to defend the suit, having given the usual bond. Upon trial here, on the general issue, the plaintiff proved the execution of the note, and read it to the jury, and there rested.

Indictment, charging that Charles H. Boody, at New Durham, in said county, on the tenth day of March, 1868, being then and there a public officer and receiver of public money, to wit, a selectman of said town of New Durham, did then and there, by virtue of his said office of selectman as aforesaid, have, receive, and take into his possession certain money to a large amount, to wit, to the amount of two hundred and seventeen dollars, and of the value of two hundred…

This is an action of trespass to the person, by Andrew J. Bodge against Patrick Hughes, Jr., and three other defendants, and the declaration is in the ordinary form without reference to the statute. The suit is really brought under the statute of July 2, 1870, ch. 3, against four persons, each one of whom is supposed to have sold to one Buzzell all the liquor so furnished, causing him to be intoxicated, and in that state to commit an injury to the person of the plaintiff.

Appeal, by David M. Clough, executor of the will of Maria E. Croft, deceased, from a decree of the judge of probate accepting a report of a committee to make partition of certain real estate, upon the petition of Samuel W. Sanders, guardian of Apphia J. Croft.. The appeal was filed August 6,1872, and was entered in this court at the December term, 1872. No notice of said appeal has ever been given. No bond was filed till May 19, 1873.

<p>An indictment, which alleges that the defendant burned a building called a barn, but does not state whether a dwelling-house was or was not burned thereby, is good under section 2, chapter 262, General Statutes, which prohibits the burning of any building other than a dwelling-house, or an out-building adjoining thereto, or a building whereby a dwelling-house shall be burned.</p> <p>Upon a trial under an indictment which charges the burning of a barn, without alleging that a dwelling-house was burned thereby, proof that a dwelling-house was burned thereby is immaterial; it can neither defeat the prosecution, nor subject the defendant, if convicted, to additional punishment; and a conviction or an acquittal will be a bar to a subsequent prosecution for the higher offence.</p>

Petition, by Samuel W. Thompson against the town of Conway, for a new highway, referred to the county commissioners who laid out the highway prayed for, and in their report fixed the grade and the time within which the road should be built. The town objected specially to that part of the report fixing the grade and the time ; and the plaintiff agreed to the rejection- of that part.

For the purpose of raising questions of law, and no other, the parties agreed that the facts are as stated in the following motions to dismiss, and the questions were reserved for the consideration of the whole court.

<p>Taxation — Private Incomes— United, States Ponds— Constitutional Paw.</p> <p>A statute, that provides for taxing eveiy person twenty-five per cent, on the amount of all incomes received by him during the year, accruing from notes, bonds, or other securities, not otherwise taxed under the laws of the state, might be valid as to other securities than those of the United States.</p> <p>But if, under the general description of notes, bonds, and other securities, it was the intention of the statute to include United States bonds, treasury notes, or other securities, given for loans of money to the United States, duly authorized by act of congress, then the statute, so far as regards such securities, is in conflict with the constitution of the United States, and utterly void.</p>

To His Excellency E. A. Straw, Gooernor of New Hampshire: My Dear Sir — Yours, containing certain inquiries in regard to the duties of the governor and council in canvassing the votes for members of congress, was received by me on the 6th instant. I wrote to Hon. S. N. Bell, of Manchester, and Hon. A. F. Pike, of Franklin, requesting each, as a friend of the court, to furnish to the members of the court a brief upon the points raised by your inquiries.