Volume 54 — New Hampshire Reports

Assumpsit, by William B. Swain against Aaron H. Saltmarsh. The writ contained one special count, as follows : “ For that the defendant, at Concord aforesaid, on the 28th day of December, 1868, by his note, in writing, under his hand of that date, for value received, promised the plaintiff to p^y him, or his order, one hundred and twenty-five barrels of tar, delivered on the wharf in Boston, on or before May 1,1869, — or $250, as he may think best.

Jacob Eoss, by liis will, gave to the town of Cornish the snm of $1,000, for the purposes and on the conditions in said will expressed, as follows: 44 25, I give and bequeath to the town of Cornish, N. H., my native place, for the purpose of perpetuating the 4 United States flag,’ that the stars and stripes of which may remind the inhabitants of their bounden duty to themselves and their fellow-citizens of the whole United States to so act in harmony with right and justice…

<p>To constitute a valid gift causa mortis, three attributes must exist: 1. The gift must be made in contemplation of the donor’s death. 2. It must be subject to the condition that it shall take effect only upon the donor’s death by his then existing illness. 3. There must be a delivery of the subject of the donation.</p> <p>No particular form of words is necessary to give effect to the transaction, if the evidence of that which was said and done establishes the requisitions for its validity.</p> <p>Money and a negotiable promissory note may be the subjects of a gift causa mortis.</p> <p>The statute requires that the delivery of the gift shall bo proved by two indifferent witnesses; but the proof of the other attributes of the gift is not defined nor limited by the statute.</p> <p>The admission of the intestate that ho had delivered the property, is competent evidence upon the question of its delivery.</p> <p>A valid donatio causa mortis may be created by deed.</p> <p>And it would seem a deed may in some cases be a proper and sufficient substitute for manual delivery.</p>

<p>By authority of the laws of 1870, ch. 12, and laws of 1871, ch. 3, the state issued bonds, a portion of which were assigned to the town of A., “ to be devoted exclusively toward the reimbursement of the expenditures incurred by the town for war purposes during the rebellion,” upon the basis that the amount of such bonds should be the aggregate of $100 for every man furnished by said town for the military service of the United States after a specified time. Held, (1) the assignment of these bonds was an unqualified and unincumbered grant of the same to the town, possessing all the incidents of an executed and irrevocable contract; (2) the act of July 3, 1872 (laws of 1872, ch. 26), declaring a portion of the fund which had been thus assigned to the town of A. to “belong to and be the property of” certain individuals (those, namely, who, having been counted as part of the quota of the town, never received any bounty from the town), is invalid, because contrary to that provision of the Federal Constitution, art. 1, sec. 10, which declares that no state shall pass any law impairing the obligation of contracts.</p>

<p>Assumpsit, by Charles E. Lang against John J. Henry, on the common counts, with a special count, alleging that, on September 25,1869, one Charles A. Lang was indebted to the plaintiff in the sum of $200, and the defendant, in consideration that the plaintiff would forbear to collect the claim, promised to pay him that sum ■; that the plaintiff did forbear, and the defendant thereupon became liable to pay.</p> <p>It appeared that before August 21,1869, Charles A. Lang, a son of the plaintiff, had been engaged in the manufacture of shoes at Boscawen; that on that day the defendant, who was a commission merchant in Boston, purchased his entire stock, and took a bill of sale of it, as follows: “ Boston, Aug. 21, 1869. Jolm J. Henry to C. A. Lang, Dr., for the following goods at Boscawen, N. H., partly finished and to be finished by said Lang, but at the expense of said Henry, and according to his directions.. [Then follows a list of the goods.] Received payment, Charles A. Lang.”</p> <p>The plaintiff claimed to recover a balance due him for work done partly before and partly after said August 21. It appeared that after the sale the plaintiff continued to work in the shop in which his son was engaged in finishing the stock, but he received, from money furnished by the defendant, more than sufficient to pay for the labor performed by him after August 21.</p> <p>Charles A. Lang testified that, at the time of the sale of the stock to Henry, the understanding was that Henry should pay the balances due the workmen. This the defendant denied, and there was no evidence of any understanding or communication directly between the plaintiff and the defendant on the subject, except as contained in the bill of sale.</p> <p>He further testified that, in September following the sale, the workmen in the shop became uneasy about their pay; that he went to Boston to see Henry about it, who gave him the following, which he authorized him to show to the workmen.</p> <p>“Boston, September 25,1869.</p> <p>“ Chas. A. Lang :</p> <p>Dear Sir : — In relation to your workmen’s pay, have no fear; they shall be paid for all their labor on the shoes made and sent to</p> <p>Yours truly, JOHN J. HENRY.”</p> <p>It appeared that this was shown to the ■plaintiff within a day or two afterwards, and no suits were commenced; and about $1,200 worth of shoes, then finished and in the shop, were immediately, and, as the plaintiff claimed, in consequence of this letter, forwarded to the defendant.</p> <p>There was no evidence that the plaintiff ever released his claim for labor prior to August 21 against Charles A. Lang, or agreed to take the defendant paymaster for it, or that the debt was in any way extinguished.</p> <p>The grounds upon which the plaintiff at the trial claimed to be entitled to recover are stated in the opinion of the court.</p> <p>The defendant moved for a nonsuit, on the ground that there was no competent evidence on which he could be charged for the indebtedness of Charles A. Lang to the plaintiff, whicli accrued prior to August 21,1869, under the statute of frauds, and that there was no evidence of a substitution or novation; and the court, being of the same opinion, ordered a nonsuit, and the plaintiff excepted.</p> <p>made an elaborate argument. The positions taken by him and the authorities he cited are considered in the opinion of the court.</p> <p>besides cases referred to in the opinion, cited 1 Pars, on Cont. 188, et seq.</p>

This is a review. The original action was assumpsit for money lent and advanced to the defendants, and for money paid, laid out, and expended for the defendants, and for money had and received by the defendants for the plaintiff’s use, and for interest on money. Also, for goods, wares, and merchandise sold and delivered, and for labor and services and materials provided, all at the defendants’ request.

<p>An act of July 2, 1870, ch. 8, entitled “An act enabling towns to abolish school districts in certain cases,” gives authority to towns at any time to abolish the school districts therein, and constitute the town a single district; thereupon a board of education is required to be elected, at the annual town-meeting in March; if the town neglects to elect such board, the selectmen may appoint. The act only takes effect in such towns as by vote, at a legal meeting, shall adopt its provisions.</p> <p>Under an article in a warrant calling a town-meeting “To see if the town will vote to redistrict its school districts, or what action they will take in relation thereto,” a town cannot legally vote to adopt the provisions of the foregoing act, and thus abolish the school districts therein.</p> <p>A vote to indefinitely postpone an article in a warrant “To see if the town will reconsider their action relating to the appointment of agents, under the law of New Hampshire, entitled ‘An act to abolish school districts in certain cases,’ and return to the old school-district system,” cannot have the effect to ratify the invalid action by which the town undertook, in the manner before stated, to abolish-their school districts.</p> <p>A legal vote to adopt the provisions of the before-mentioned act, abolishes ipso facto, and immediately, the then existing school districts.</p> <p>Such a vote was passed in May, in the town of T. Prior to that time the act aforesaid was not in force in that town. The failure of the town to elect a board of education at the previous March, when only by the provisions of the act such election could be made, was not the neglect contemplated by the act, which would authorize the selectmen to appoint a board of education after the passage of the vote in May.</p>

<p>Where personal property is attached, receipted for, restored to the defendant, and sold by him to an innocent purchaser, and the defendant becomes a bankrupt before judgment, but more than four months after the attachment, the plaintiff is entitled to judgment in rem, and his execution may be levied upon the avails of the property when recovered from, the receiptor.</p>

Trover, by Justin Spear against Charles H. Hill, for a portion of the property included in a receipt given by the defendant to the plaintiff, for property attached by the plaintiff, as a deputy sheriff, upon a writ in favor of William Stewart against Dudley B. Emerson. The receipt was dated October 10, 1866.

<p>A witness in a capital case should not be excluded because the list of witnesses furnished to the respondent does not contain his true name, if it contains the name by which he is known.</p> <p>In an indictment for murder, a count which charges that the respondent “ in some way and manner, and by some means, instrument, and weapon to the jurors unknown,” killed and murdered the deceased, is good.</p> <p>A general verdict of guilty of manslaughter in the first degree being returned on a trial under an indictment which contains several counts, judgment will not be arrested, nor will the verdict be set aside, because there is one count under which, had there been no other, the jury could not have found the respondent guilty of manslaughter in the first degree.</p>

This is an action of slander. At the April term, 1869, the jury returned a verdict for the plaintiff for |530 damages. Certain exceptions to the instructions to the jury being taken by the defendant, the case was transferred to the law term, where, in June, 1870, judgment was ordered upon the verdict, and at the October term, 1870, of this court, judgment was rendered on the verdict.

<p>Review, entered by the defendant, of a proceeding under the bastardy act, prosecuted by the town of Richmond, in which, upon issue joined, a judgment had been rendered, that the defendant was chargeable. A motion to dismiss the review was denied, and the complainant excepted.</p> <p>took the following positions, besides several others which are stated in the opinion of the court:</p> <p>Although the language of the statute — sec. 1, cli. 215, Gen. Stats.— is broad enough to embrace proceedings under the bastardy act, and although a prosecution under this act has been held to be a civil action for certain purposes — Marston v. Jenness, 11 N. H. 156 — we claim that it could not have been the intention of the legislature to grant the right of review in such cases.</p> <p>The only instance in which we can find that prosecutions for bastardy have been expressly excepted from the class of cases in which the right of review was granted, is in the act of June 28,1859, reorganizing the judiciary; and the fact that, in no instance, so far as we can learn, since the right of review was first granted (more than three fourths of a century ago), has a review of such prosecution been commenced, is a strong circumstance to show that, in the judgment of the members of the legal profession of this state, no right of review in such cases has ever existed.</p> <p>The marginal note to the commissioners’ report indicates that they considered the change made by sec. 1, ch. 215, material; but that note also shows that it was the change from the provisions of the Revised Statutes and the Compiled Statutes, which they considered material; and that was in allowing reviews of actions in which no issue had been joined, but where, by agreement of parties, judgment had been rendered open to review. The statute of June 28,1859, then in force, is not referred to, and there is no indication that they regarded the proposed statute as changing the provisions then in force relating to reviews in prosecutions for bastardy.</p> <p>after citing a portion of the authorities which are referred to in the opinion, made the following points:</p> <p>In this case a judgment was rendered upon the verdict of a jury against Bowen; and we are unable to find any provision or decision that brings this class of cases within the exceptions of the statute as being “ otherwise provided.” It seems, therefore, to come within the description of cases given by the statute. It also comes within the reason and spirit of the statute, which was passed to enable suitors to have a second opportunity to correct any mistakes, errors, or oversights of a former trial, by which they might unfortunately have lost their case and their property, and to repair, if possible, the misfortune.</p> <p>This class of cases has stronger reasons for giving a defendant a second trial than most cases; for it not only involves property, as with other civil suits, but it affects to a considerable degree a man’s character and standing in community. A good name must be regarded by the legislature and by courts full as worthy an object to contend for as property. And the opportunities to vindicate against immoral charges should be as well secured as the right to contend for a dollar’s worth of real estate.</p>

<p>Petition of Harding Ball and others for a new highway in Westmoreland and Walpole, entered on the second day of the April trial term, 1874. An order of notice was issued by order of the court, returnable May 8, 1874, to be served upon said towns twenty-eight days before said May 8. Service was made according to the order. On the return day said towns appeared specially, and moved to dismiss the petition for want of proper notice, which the court proforma refused, subject to exception.</p> <p>The court has power, under sec. 18, ch. 207, of the Gen. Stats., to “ order notice to be given in such manner as they think fit of any petition,” &c., “ filed therein.” We understand that this section of the statute applies to cases filed in court during term time, and that the court is authorized to order a notice like the one in this case under it.</p> <p>Section 2 of ch. 63 of the Gen. Stats., and the 68th rule of court, are for the government of the clerk of the court in cases filed during vacation. This construction appears from this section of the statute, from the marginal note against it, from the rules of the court, and from sec. 19, of cli. 207.</p> <p>Our best information is, that the practice of the court has been to issue notices in term time in cases of this kind, returnable on a day within the term, where the requisite number of days’ notice could be given.</p> <p>In Kimball v. Marshall, 44 N. H. 465, the court exercised the power to order a notice different from that ordinarily required by the rules, and such a notice was held to be good if its reasonableness and propriety were approved by the court. The propriety of such an order seems to be a matter of discretion with the court that makes it. The day when a town is summoned to appear (if the requisite time is given, as it was in this case) is not a matter of substance, but only a matter of form. If the statute first above cited does not apply to a case of this kind, it is difficult to see for what purpose it was made, or to discover the intent of its words.</p> <p>The statute, giving the court jurisdiction over the laying out and altering of highways in certain cases, provides carefully and particularly the manner in which an order of notice is to be issued and service made on the towns interested, and the term of court to which it is to be made returnable. Gen. Stats., cli. 63, secs. 1 and 2. The statute is peremptory, and where the statute directs the manner in which service is to be made or notice given, its requirements must be strictly followed. Foster v. Haddock, 6 N. H. 217 ; Abbot v. Banfield, 43 N. H. 155, and cases there cited. The words of a statute, if of common use, are to be taken in their natural, plain, obvious, and ordinary signification and import. 1 Kent’s Com. 518.’ Applying this rule to the statute in question, it is difficult to see how its plain requirements can be satisfied by making the order of notice returnable to the same term of court at which it was issued, and by service on the defendant towns twenty-eight days before a day named, in the same term. The plain intention of the legislature would seem to be, that the order of notice must be issued and service made on these petitions twenty-eight days before the sitting of the court to which they are made returnable, as in the case of original writs and writs of mesne process.</p>

Petition of the town of Rindge for the discontinuance of a highway, entered on the first day of the April trial term, 1874. An order of notice was issued by order of the court, returnable May 9, 1874, for publication in the Cheshire Republican three weeks successively before May 9, and to be served personally upon one of the original petitioners for said highway fourteen days at least before May 9. Notice was given pursuant to the order.

<p>Trespass qu. el. and de bonis. Plea, tlie general issue, and brief statement of license. In 1863, one Rebecca Very, who then owned the land, conveyed the timber standing, lying, and being thereon, to one Kingsley, by deed (duly executed, acknowledged, and recorded), containing an agreement that Very would deliver the timber at a certain place not on the land, on or before April 1,1866, and that, if Very failed so to deliver it, the grantee, his heirs and assigns, might enter the premises and take the timber. Very received payment for the timber, but did not deliver it. In 1866 Kingsley conveyed the timber to Hardy, and in 1868 Hardy conveyed it to the defendants. In 1870 Very conveyed the land to the plaintiff. In 1871 the defendants cut some of the timber and carried it away.</p> <p>The jury disagreed, and questions were reserved.</p>

<p>The act of July 2, 1870, which provides that the person who sells or furnishes to another intoxicating liquor in violation of law shall be liable, in certain eases where death results, to any person dependent on the deceased for support, for all damage or loss occasioned by such injury, held constitutional.</p> <p>The widow of the deceased, who was dependent on him for support, may maintain an action for damages under this statute.</p>

<p>Trespass, by Sylvanus True against Arial Huntoon, Lewis Bartlett, and Benjamin F. Gilman, for an assault. Writ dated May 16, 1872. The action was entered at the September term, 1872. An appearance was entered for the defendants, and the case was continued to the January term, 1873. During the January term the defendants, who had not previously filed any plea, filed the general issue, and at the same time filed several pleas puis darrein continuance in bar of the further maintenance of the action, alleging an accord and satisfaction. The plaintiff moved to dismiss the plea of the general issue. The motion, to reject the plea -was pro forma denied. The plaintiff excepted.</p> <p>Case reserved, including all questions of discretion.</p>

Ca.se, by Moses Buefelin against Hiram Truell and Sumner Truell, for flowage. This cause having been tried by the court under the provisions of ch. 189, secs. 4 and 5, Gen. Stats., the following facts and conclusions of law are reported: At the northerly margin of Grafton pond, so called, in Grafton, is a tract of land, with a saw-mill, mill privilege, and a dam at the outlet of said pond, on said northerly shore.

Foreign Attachment. The case was transferred to this court by agreement. The- question is, for what sum the trustee shall be charged. Held: that the town of Clarksville was not chargeable, as trustee of Heath, on account of certain bounty which the town had offered to induce volunteers to enlist. That decision was founded upon public policy, it is said.

Petition for partition, under the statute, by Eleazer Barney against Carey Leeds. Held: practically, that it was impossible to execute the statute as written. The commissioners had modified its provisions, conforming in some respects to the

Debt, by David L. Davis, surviving partner, against Orville Dyer and John Bradford, trustees of the Church family of Shakers, on an award.

In Equity. The bill alleges that the plaintiff, William Gordon, on the 15th day of December, 1863, being indebted to his late brother, Henry L. Gordon, executed and delivered to him a deed of warranty, in common form, of certain real estate described in the bill; that said deed was given for the purpose of securing a debt which the plaintiff owed said Henry L. Gordon, and other claims and .demands against the plaintiff, which the said Henry L. Gordon then assumed to pay, and…

Scire eacias against bail. At the February term, 1869, in this county, Alanson J. Shorey was indicted for unlawfully selling mortgaged property. He was arraigned, pleaded not guilty, and gave bail in the sum of $400 for his appearance at the April term, 1869. These defendants duly recognized at the same time in that sum as his sureties.

Writ op entry, to recover a strip of land in Gorham, forty-six rods long, and a rod and a half wide. Plea, nul disseizin. It appeared that oil March 7,1856, the plaintiff owned the land in controversy, together with the lot of land lying eastwardly of it, and that the demanded premises constituted the easterly half of a public highway three rods wide. On that day the plaintiff conveyed to the defendant the lot lying on the east of the highway.

Libel for the forfeiture of seventy gallons of whiskey, twenty gallons of alcohol, forty gallons of brandy, and four barrels containing the same. William H. Shannon appeared as claimant and filed a plea, to which the solicitor replied, and there was a general demurrer to the replication. The material facts derived from the pleadings are stated in the opinion of the court.

This case, assumpsit by Anson Plummer against David Meserve, had been to an auditor, who reported a balance of accounts in favor of the plaintiff, subject to the opinion of the court upon a special finding of facts with respect to some items. At this term the report was submitted to the court by the parties, and upon the special findings of the auditor the court ordered judgment for the defendant.

<p>When a right of defence under the statute of limitations has become vested and ¡perfect, any law rvhich afterwards annuls or takes it away is retrospective and unconstitutional.</p> <p>So much of chapter 7 of the laws of 1872, as attempts to make the provisions of that statute apply to cases where the time for prosecuting claims had expired at the time of the passage of said act, is unconstitutional and void.</p>

<p>An unadjusted partnership transaction or account is not a proper matter for a specification or a set-off in an action at law.</p> <p>B. brought a writ of entry upon a mortgage against T. and his wife. A son of T. had sold the note, which was secured by the mortgage, to B., with whom he had been in partnership, but they had dissolved and made a partial adjustment of their partnership business before suit brought. T. offered to show that the partners had made a full and final adjustment of said partnership business, and that in such adjustment the pdaintiff had been fully paid for this note and mortgage, and had agreed to give up the same to the defendant or his son. Held, that this evidence was competent.</p>

<p>Petition of G.B. Chandler, and others, for a new highway in Candia, Auburn, and Hooksett, referred to the commissioners for Rockingham and Merrimack counties. Report laying out the highway and apportioning the damages and expense.</p> <p>Motion for judgment on the report of the commissioners.</p> <p>Motion by the town of Candia that the report be set aside upon exceptions thereto filed, the third and fourth of which are thus stated by the presiding judge.</p> <p>The third exception is, that “ the commissioners have undertaken to assess part of the damages and expense of building said road upon the towns of Auburn and Candia, and did have a hearing thereon, without due notice to said towns.” I find that after the commissioners decided to lay out the proposed highway, the town of Hooksett made application in writing, under the provisions of sec. 14, cli. 62, Gen. Stats., for an apportionment of the damages assessed and the expense of laying out and making said highway among the several towns in which said highway was laid out. Notice of this application was served upon one of the selectmen of each of said towns of Candia, Auburn, and Hooksett, by giving in hand to one, and leaving at the usual place of abode of each of the others, a copy of the application and order of notice, and of the appointment of a time and place of hearing thereon, more than fourteen days before said hearing.</p> <p>And I find, as a matter of law, that said application, order of notice, service thereof, and the hearing thereon, were legal and sufficient; and that the apportionment of the said damages and expenses was legally made. The third exception is therefore overruled.</p> <p>The fourth exception is, that “ Parker Brown, Esq., and S. D. Johnson, Esq., two of said commissioners, were induced to sign said report and to lay out said highway in consideration of the assessment of part of the expense of building the same in said town of Hooksett upon the towns of Candia and Auburn, and not by the merits of said petition.”</p> <p>I find, upon all the evidence submitted and upon the facts stated in the report, that the said Brown and the said Johnson were induced to sign the report and to lay out the highway in consideration of the apportionment of a part of the damages and expense of building said road in Hooksett upon the towns of Candia and Auburn; and that, if such apportionment had not been made, a majority of the joint board would not have consented to the laying out of the highway, notwithstanding a majority of the joint board had announced their intention to lay out the road before such application was made by the town of Hooksett. No report had been made, nor was any made, or any decision reduced to writing, concerning the laying out of the road, until after the hearing and determination of the application of Hooksett; but I hold, as matter of law, that these facts do not invalidate the report and judgment of the commissioners in laying out the highway and apportioning the damages and expense. The fourth exception is therefore overruled.</p> <p>The foregoing questions were reserved for the consideration of the whole court.</p> <p>The finding of the matter of law upon the third exception is correct. (1) The apportionment of damage was but an incident to the trial, of which no notice was required. Gen. Stats., ch. 62, sec. 14. (2) But notice in fact was given which was sufficient. Gen. Stats., ch. 62, sec. 1. The finding of the matter of law upon the fourth exception is correct. The finding of the matter of fact is entirely consistent with the idea that the commissioners acted honestly, since any member of the board might well decline to sign the report unless the damages were to his mind justly apportioned. At all events the facts found are not sufficient to overcome the presumption that the thing was rightly and honestly done. Proctor v. Andover, 42 N. H. 348.</p> <p>The third exception is founded upon the fact that by Gen. Stats., ch. 63, sec. 2, notice of petitions relating to highways must be given to the town-clerk as well as to the selectmen, as in the service of writs against towns under ch. 204, sec. 10. The apportionment of the expense of the highway is substantially a new proceeding. Mitchell v. Holderness, 29 N. H. 523; Whittredge v.Concord, 36 N. H. 530.</p> <p>The fourth exception is, in substance, that the commissioners reported in favor of laying out the highway, not upon its merits, but expressly as to the Merrimack county commissioners, in consideration that part of the expense of building in that county should be assessed upon the towns in Rockingham county.</p> <p>The questions of laying out and of imposing the expenses upon other towns are distinct in their nature. The one follows after the other. Gen. Stats., ch. 62, sec. 12 ; Mitchell v. Holderness, 29 N. H. 523. If such considerations as induced the majority of the commissioners to lay out this highway are permitted, the worst abuses will follow. The commissioners of adjoining counties will struggle to lay the burden upon each other, and roads will be built, which (as in this case) are not in the honest and unbiased judgment of the majority found necessary. Many commissioners will carelessly consent to the establishment of roads, provided they are to be no burden upon their eonsituents. See Dudley v. Sutler, 10 N. H. 281; Dudley v. Cilley, 5 N. H. 528 ; Goodwin v. Milton, 25 N. H. 472; Gurnsey v. Edwards, 26 N. H. 229; Turnpike v. Ohampney, 2 N. H. 201.</p>

Assumpsit, to recover for the services of the plaintiff, Charles W. Shannon, as a constable and police officer, from July 7, 1870, to December 15,1870.

<p>An agreed case, expressed to be “for the purposes of this suit,” is an admission of the facts therein stated, not only for the purpose of determining the questions of law raised by the case, but for any and all subsequent proceedings to the close of the suit, and may be given in evidence to the jury unless the intention of the parties otherwise appears from the case.</p> <p>An application to discharge a case agreed, or to relieve a party from its operation, is addressed to the discretion of the court, and will be exercised only when it is made clear that it is necessary to prevent injustice. Much less will the court exercise its power to afford such relief to the jiarty asking it who has been guilty of laches, when it appears that it will do injustice to the opposite party, he having been guilty of no laches, but has relied in good faith upon using such agreed case as an admission by the other side of the facts therein stated.</p> <p>C. W. B., being indebted to his sister H. B. in the sum of $1,500, gave her a writing, by the terms of which he promised to pay her “ during her lifetime $90 per year semi-annually, being the interest at six per cent. of $1,500, — tlie principal to be paid to her personally when she may require it, but to no other person. This obligation will bind my heirs in case of my decease, and release them from any obligation beyond her lifetime.”</p> <p>C. W. B., having paid to H. B. $45 every half year during his life, died August 4, 1888. Subsequently his executors continued to make half-yearly payments of $45 each to her, until and including July 1,1869. On August 9, 1869, in response to her written demand for the payment of the principal sum of 81,500, they paid her 8393.50, and on January 1, 1870, they paid her 833.20, being the interest then due upon the remainder of the principal sum. May 12, 1870, after making a further demand on that day for the balance due upon said writing, H. B. died. The executor of H. B. brought an action against the executors of O. W. B. to recover said balance. TJpon the trial the defendants offered to prove (1) that H. B. in her lifetime admitted that the writing was given for money which C. W. B. invested for her, and which was lost; — held, that the evidence was immaterial; (2) that H. B. admitted in her lifetime that she was not to call for any part of the principal sum, unless it was necessary for her support; — held, that the evidence was inadmissible, because it contradicted the written agreement; (3) that within 48 hours preceding the death of C. W. B., she agreed that if L. W. B. would agree to pay her §90 per year so long as she lived, she would surrender said writing, and that said L. W. B. did so agree; — held inadmissible, because it sets up a nude agreement inter alios, and because it was never executed on either part; (4) that the executor of C. W. B. paid her $393.50, August 9, 1869, part of said sum of $1,500, in consideration of which she agreed that she would not call for any more of said principal sum;— held inadmissible, because it sets up a verbal release without consideration; (5) that H. B., immediately after said payment of $393.50, asked the forgiveness of Mrs. O. W. B., one of the executors of C. W. B., for making said demand, and promised that she would not call for any further sum upon said writing than the interest; — held inadmissible, because it sets up a verbal release without consideration; (6) that H. B. was not of sufficient capacity to make the demand of May 12, 1870; that the same was not hers, but was made by one G. G. B. when she was dying;— held immaterial; that the first demand was sufficient to fix the liability of the defendants.</p>

<p>Trover, by Samuel Rowe against Calvin Page, for two mowing machines and six plows. By consent of the parties the case was tried by the court, before whom the following facts were proved or admitted: February 17,1872, the firm of Mason & Seavey, copartners in trade at Portsmouth, owned the property, and on that day the plaintiff, who was sheriff of Rockingham county, attached it on a writ in favor of Millard & Curran against Mason & Seavey, and thereupon Mason & Seavey procured Woodbury Seavey to receipt for it to the plaintiff, and it was left in. the possession of Mason & Seavey. It was agreed between Mason & Seavey and Woodbury Seavey that the attached property' might be stored in the upper loft, being the third story of the store in which Mason & Seavey were carrying on business, and that it and the avails of it, if any, should be sold by Mason & Seavey, and should be kept by them to pay the judgment which, might be recovered in said suit. The property was stored in one end of the loft and remained there, except some portions of the mowing machines, which were sold, until August 8,1872, the store and loft remaining until that day in the possession of Mason & Seavey. In the meantime, parts of each mowing machine had been taken off by Mason & Seavey and sold, but the avails went into their general funds, not being kept to pay the judgment, as agreed with the receiptor.</p> <p>August 8,1872, Mason & Seavey assigned all their property to the defendant for the benefit of their creditors, and the defendant immediately took possession of it, including the plows and the pieces which remained of the mowing machines. The defendant at this time knew that the property was subject with other articles to a mortgage given by Mason & Seavey, which mortgage he intended to disregard as fraudulent; but he had no knowledge of the attachment of the property by the plaintiff. ,,</p> <p>February 19, 1873, Mason & Seavey, upon the petition of certain creditors,were adjudged bankrupt; and March 22,1873, the defendant having been appointed their assignee in bankruptcy, all their property was assigned to him. The defendant, as assignee in bankruptcy, at some time after'March 22, 1873, sold that portion of the attached property which came to his hands. The plaintiff duly demanded it of him before the sale.</p> <p>At the April term of court, 1873, upon the final calling of the docket, Mr. Hatch, who had appeared for the defendants in the action Mih lard $ Curran y. Mason Seavey, withdrew his appearance, and the defendants were defaulted, the entry upon the docket being “judgment nisi;” but the plaintiffs’ counsel was not present, and neither the plaintiffs nor their counsel had any knowledge that the case was not continued until a short time previous to the next October term. At said October term, no execution having been issued, on motion of the plaintiffs’ counsel and a statement of these facts, the action was brought forward, and judgment was rendered in favor of Millard & Curran against Mason & Seavey, on which execution was issued, and a demand was duly made within thirty days upon the receiptor for the attached property. The defendant had no knowledge that he was interested in the case until after the close of said October term. The court reserved the question whether the plaintiff is entitled to recover. .Judgment is to be rendered for the plaintiff for the amount of the judgment recovered by Millard Curran against Mason & Seavey, and costs and interest, or for the defendant, as the whole court shall order.</p>

Trespass, quare clausum. This is the case reported 52 N. H. 225. The title to the land described in the writ being in dispute, it appeared that one Thomas Souther for a long time occupied a small portion of the described premises, and lived in a small house near the south-western part thereof: it was claimed by the defendant that Souther held under the license and permission of an ancestor of the defendant.

Bill in Equity, by Ellen Raynes, Emma Baynes, and Ida B. Palfrey against George Baynes, Eleanor Baynes, and Nathaniel K. Baynes. George Baynes, a shipbuilder of Portsmouth, husband of said Eleanor, and father of the other parties, died in April, 1855, leaving a will which was dated June 3, 1854, and proved May 8, 1855.

Writ or Entry, dated July 1,1871, in favor of Charles W. Wiggin and against Harriet S. Smith. Plea, nul disseizin. The plaintiff put in eA'idence a deed from Daniel Waldron and wife to himself, dated September 27, 1859, of land Avhich, he contended, included the demanded premises, and a plan thereof, which, in connection with the deed, was exhibited and explained by a surveyor, a Avitness for the plaintiff’. The deed is made a part of the case.

This was an indictment against Albert Hadley, Abbie Hadley, and George T. Wentworth.

Appeal, by Annie M, Woodman against Sai'ali A. Woodman, from the decree of the judge of probate appointing Sai’ali A. Woodmari administrati’ix de bonis non of the estate of Abigail Woodman. Held: should so express it. If it was so expressed, then she had the same power over the property and the same rights in it that she would have in property held under the act of 1860. The phraseology of both acts is nearly identical.

<p>Writ op Entry by Thomas Sanborn against James H. B. Robinson (and George W. Osgood admitted as defendant). The parties agreed upon the following statement:</p> <p>October 11,1870, Jonathan B. Kelley owned the demanded premises.</p> <p>Upon that day he mortgaged the premises to Josiali R. Dearborn, to secure a note of even date for six hundred dollars. This mortgage, at the time of its execution, was attested by only one witness. It was acknowledged October 11, and recorded October 15, the record as then made showing only one witness. October 18, 1870, Kelley sold to Robinson and took a mortgage back the same day to secure a note of five hundred dollars. At the close of the description in this mortgage are the following words in parenthesis :</p> <p>( of six hundred dollars b</p> <p>(said premises are subject to a former. J This mortgage (Robinson to Kelley) was recorded October 21,1870. November 1, 1870, Kelley sold and transferred the mortgage note to George W. Osgood, and delivered the mortgage to him. Osgood claims that he took the mortgage, not knowing of the prior mortgage. It is not alleged he had other notice, except what the mortgage-deed (Robinson to Kelley) gave him. Subsequently to the original record of the first mortgage, Thomas Sanborn took that mortgage, the deed when taken by him having on it the names of two witnesses. The signature of the second witness was recorded September 27,1872.</p> <p>The court ruled, pro forma, that the plaintiff could recover. The defendant, Osgood, excepted.</p> <p>The parties agreed that all questions arising on the foregoing statement, whether of law. or fact, be reserved.</p>

This was a motion for a capias to issue against George H. Tebbetts.

<p>Practice in Pquity — Reformation of Lease — Construction of written contract— Words necessary to pass afee.</p> <p>Where neither the rights nor liabilities of the assignor of a lease will be affected by a decree upon a bill in equity brought to reform the instrument, there is no rule of practice which imperatively requires that such assignor should be joined as plaintiff in the bill.</p> <p>The assignment of the lease by the plaintiff after the commencement of such proceeding is not cause for dismissing the bill, the lis pendens being sufficient notice to the assignees so that they will be bound by the decree.</p> <p>The court, at the law term, do not receive and consider additional evidence upon the hearing of questions reserved in equity.</p> <p>A lease conveyed the right to draw a certain quantity of water from a canal of the lessors to the mills of the lessees, etc. It contained various covenants, and among them a stipulation by the parties that “ all the covenants and agreements therein contained shall extend to and bind their legal representatives.” It also contained this reservation :</p> <p>“ Excepting and reserving to the said lessors, however, the control of the water in the W. river, and in all mill-ponds, bays, lakes, and reservoirs at and above said premises, with the right of holding back and retaining and discharging the water therefrom at their pleasure, an abatement of the rent hereinafter mentioned being made in case said lessees shall be interrupted in the use of said mills thereby.” Upon a consideration of the whole instrument together, it was held, that the lessors could not, at their pleasure, erect a barrier to prevent the flow of water from their reservoir into the canal, and in that way terminate the lease, when such course was not necessary in their general control and management of the water.</p> <p>The habendum was to the lessees “ for and during their pleasure.” Held, upon the whole instrument, not to create a strict tenancy at will, but a covenant for perpetual enjoyment by the lessees.</p> <p>The lease did not contain the word “heirs,” but the language used, in its common and natural sense, showed a clear and unmistakable intention to convey a perpetual right or fee. Held, that the court were bound to give effect to the intention and contract of the parties as thus expressed; and that there is in this state no rule of law that a fee can never pass by deed without the word “ heirs ” be used.</p>

Appeal, by Jonathan P. Norris against Levi Towle, from a decree of the judge of probate> made on the settlement of the account of said Towle as administrator of the estate of Gilman Corliss, late of Meredith, deceased, the appellant being the guardian of the minor and only heir of the estate of the deceased. The parties agree upon the following facts : Corliss died in April, 1866, and ToWle was appointed administrator on his estate in May after.

Assumpsit, by the Ossipee Hosiery and Woolen Manufacturing Company against Havillah D. Canney, for an assessment made by the plaintiffs upon the defendant as a stockholder in the plaintiff corporation for the purpose of paying the corporate debts under Gen. Stats., ch. 186, sec. 4.

<p>The lien of an attorney upon a judgment recovered by him will be enforced according to the law of the state where the lien attached, and not according to the law of the state where the judgment is sought to be collected.</p> <p>By the law of Vermont, as established by their judicial decisions, an attorney has a lien upon a judgment recovered by him, not only for his term fees, attorney fees, and travelling fees, and for all money expended by him in prosecuting the suit, but also, it seems, for his reasonable charges for arguments, thus covering and securing to him to the full extent all just claims as attorney in the suit.</p> <p>And this lien is there ¡protected so that it cannot be defeated by an attachment of the debt upon which the lien exists by trustee process, even though no notice of the lien had been given by the attorney to his debtor.</p>

Though the general bankrupt law of the United States may suspend all state insolvent laws, yet it does not affect the general law for the settlement of insolvent estates of persons deceased. Assumpsit, by L. B. Hawkins & Co. against Lewis M. Learned, to recover the amount of a promissory note, and for goods sold and delivered. Writ dated October 24,1873.

Assumpsit, by E. L. Burbank & Son against J. G. McCluer & Co., principals, and National Eire and Marine Insurance Co., German Insurance Co., trustees; also, by James P. Eerry against James G. McCluer and same trustees, and other similar cases.

This was a review of an action on the case brought by Richard M. Ordway against Dr. Timothy Haynes, for alleged malpractice as a physician and surgeon.

In equity. This was a bill in chancery, in which William S. Mars-ton, Clark Durgin, and William A. Bachelder, all of Andover, in said… Held: by Bosworth, J., where certain stockholders in a corporation brought an action to recover from a person employed by the corporation, or its agent, money received by him in the course of such agency, on demurrer to the complaint, “ that it was bad for want of an averment that the corporation by its officers had refused to bring an…

Assumpsit. The declaration is as follows: In a plea of the case for that the defendant (Moses Varney), at Wolfeborough, to wit, at Concord, afoi’esaid, on the eleventh day of August, 1866, by his promissory note in writing of that date, by him subscribed, for value received, promised the plaintiff to pay to it or its order fifty dollars in six months after date, with interest semi-annually ; yet, though said six months have long since passed, said note has not been paid, but…

Indictment against Baruch Biddle, for keeping two gallons of intoxicating liquors for sale, at Concord, on August 10, 1873. The defendant admitted that he, at the time and place specified, kept for. sale ale and cider, but nothing stronger. The court ruled that ale and cider, after fermentation is completed, are intoxicating liquors, without proof of the amount of alcohol which they may contain ; and the defendant excepted.

Writ op error, to reverse a judgment recovered by the defendants in error against the plaintiff in error, at the October term, 1869, of the supreme judicial court for this comity.

The appellants set forth that on the fourth Tuesday of April, 1872, they presented their petition to the judge of probate, representing that the property of the estate consisted principally of a house and lot in Concord; that Samuel G. Lane, who is executor of the will of Sarah Huse, by virtue of a license from the judge of probate, sold at auction, Dec. 4, 1868, the house and lot; that said Lane, acting or professing to act for the benefit of the estate, bought the…

Assumpsit, by James B. Bean against Samuel P. Brown, with general counts, and an account annexed. Writ dated Dec. 24, 1872, and served the same day.

, late of Franklin, deceased. The facts, so far as material, are as follows: Daniel Blanchard, late of Franklin, in this state, died previous to Oct. 12,1866, testate, and the appellee, who is a resident of Lowell, Mass., was appointed administrator of his estate, with the will annexed. He bequeathed to his son, Daniel Blanchard, Jr., of Lowell, who was under the guardianship of John Holt, the sum of $800, and the same amount to his daughter Janette, of said Lowell.

<p>A petition, praying that a new highway may be laid out within two towns, may be filed in the office of the clerk of the supreme court, or may be presented to the selectmen of such towns acting jointly. In order to give the court jurisdiction of such petition, it is not necessary that it be first presented to the selectmen of such towns, and that they neglect or refuse to lay out such highway.</p>

<p>If a railroad corporation, situated in another state, pays a specific tax upon all its capital invested or expended, whether represented by capital stock or indebtedness of the corporation, and such taxation is declared to be in lieu of all state, county, township, or other taxes in that state, and it appears that such specific tax was intended to be a fair equivalent for the taxes that would otherwise be laid on such property by the ordinary means of taxation, such property should not again be taxed in this state to the owners of shares of the capital stock of such corporation.</p>

<p>One partner cannot apply the partnership funds or securities to the discharge of his own private debt without the consent of the other partners, either express or implied.</p> <p>Nor does it make any difference whether such creditor knew that it was partnership property or not, that was thus applied in payment of his debt.</p> <p>When one partner retires from the firm and releases all his interest in the assets to the other partner, who agrees to pay all the company debts, the right of priority still continues in the partnership creditors in respect to such assets.</p>

Case, for defective highway, by Eliza Sanford against the town of Candía. The plaintiff being a resident of Boston, the original writ was indorsed by a resident of this state. The defendants obtained a verdict and judgment; and on motion of the plaintiff the case is now brought forward for review.

Assumpsit, on the common counts, by Emma E. Alexander and her husband, William E. Alexander, against Westley Goodwin. Writ dated June 27, 1872.

<p>Case, by Scott & Jewell against Hiram Simons and others.</p> <p>The substance of the declaration, so far as it relates to questions considered in the opinion of the court, is, that, on July 8,1870, the defendants were the owners of Mercantile block, situated on the corner of Concord and Elm streets in Manchester, and on that day the plaintiffs, by an agreement with the defendants, in consideration of $21 per month, to be paid monthly in advance as rent, became the rightful and legal occupants of a certain cellar in the basement of said block, to be occupied by them as a grocery store and meat shop as tenants at will, and entered into possession thereof, and ought to have remained in the peaceful and quiet occupation of said premises free from molestation or interruption ; yet the defendants, by means of a certain drain leading from said block to the city sewer, which drain, by reason of its improper and defective construction, having no gate or other apparatus to prevent the water from the common sewer from flowing back through said drain into the cellar occupied by the plaintiffs, and by reason of said drain through the negligence and carelessness of the defendants being suffered to remain so imperfect, defective, and insufficient as aforesaid, on the fourth, nineteenth, and twenty-third days of August, 1871, caused the water from said sewer, without the fault or negligence of the plaintiffs, to flow back through said drain into said cellar, and overflowed the same, and flooded, damaged, and destroyed the goods and chattels of the plaintiffs in said cellar.</p> <p>By consent of the parties the case was tried by the court upon the general issue, and the judge reported the following facts, and reserved the question whether the defendants are liable for all or any of the injuries complained of: The plaintiffs hired the cellar of the defendants, who were the owners of the Hock containing it, called Mercantile block, situated on the corner of Concord and Elm streets, in Manchester, and moved their goods into it July 8, 1870, and removed from it August 24,1871, in consequence of the water flowing into it and damaging their goods. They paid rent monthly in advance. There is a sewer under Concord street which runs into the main sewer under Elm street. The defendants, in 1867, rebuilt the buildings, and constructed a drain of cement pipes in the ordinary way of constructing such drains, from the cellar wall, under the sidewalk and street, into the Concord street sewer. A sink was set in the cellar, near the end of the drain, and a lead pipe, designed to carry off waste water, ran from the sink through the cellar wall into the drain. Sometimes, in high water, previous to the occupancy of the plaintiffs, the sewers had been full, and the water had run back through the drain and pipe into the sink, and the defendants had provided a plug to be inserted in the end of the pipe at such times, which had prevented further difficulty from the water. There was no gate or other apparatus, except said plug, to prevent the water from flowing from the sewer through the drain and pipe into the cellar. When the plaintiffs took possession, they were told of this liability of the water to flow back through the drain and pipe into the cellar, and how to prevent it by the use of the plug. This was all the danger the defendants then knew of, or had any reason to expect. The plaintiffs did as they were directed, and were in no fault on their part. On the fourth day of August, 1870, there was a shower of rain, during which the quantity of water that fell was greater than the capacity of the public sewers to receive and conduct away, in consequence of which the water was thrown back from the Concord street sewer into the drain with such force that a breach was caused near the cellar, and the water flowed out and forced its way to and through the wall into the cellar, and damaged the plaintiffs’ goods. They immediately notified the defendants, and requested them to repair the breach so as to prevent further damage; but nothing was done. There came another shower on the 19th, and still another on the 23d of the same month, upon each of which days the water flowed back into the cellar in the same manner as before, and damaged the plaintiffs’ goods; whereupon they abandoned the premises.</p> <p>The relation of landlord and tenant, which subsisted between the defendants and the plaintiffs, does not relieve the defendants from their liability to answer for the injuries occasioned by their own wrongful acts.</p> <p>The plaintiffs had contracted with the defendants for the use and occupation of this cellar for a grocery store, and had paid the defendants in advance the sum which they demanded for the same, and were entitled to the quiet and beneficial enjoyment of the premises. The defendants had erected the building to rent, and they were bound to employ reasonable skill and diligence in such erection, regard being had to the purposes for which it was to be used. The plaintiffs had a right to act upon the presumption that the defendants had safely con-, structed the premises.</p> <p>The defective and illegal construction of the appurtenances to said premises were facts within the knowledge of the defendants, which the plaintiffs could not have known, unless such information was given them by the lessors, which was withheld. They let the cellar for a purpose for which they knew it was unfitted, by reason of the defective condition of the sewer, and they cannot avoid liability for the consequences on the ground that the party, whom they have injured by their negligent, wrongful, and illegal acts, was their tenant, and they had a legal right thus to imperil and destroy his property.</p> <p>There are numerous decisions establishing the doctrine that any interference, in fact or effect, which renders the premises useless, in consequence of which the tenant is compelled to abandon them (as the case finds to be the case in the present instance), may be set up in defence against a recovery of rent, and the same doctrine must render the lessor liable for the damage which thus ensues to the lessee.</p> <p>They have exacted and received their rent-money in advance, and have permitted the plaintiffs to expose their valuable and destructible goods to the injuries which were liable to result from the improperly constructed sewer; and, as Lord Abinger wisely remarks, in Smith v. Man-able, 11 M. & W. 5 (41 E. C. L. 263), “ it is plain, good common sense, that, if a man lets a house, it shall be fit for the purposes of occupation.”</p> <p>The plaintiffs also cite Godley v. Eagerly, 20 Pa. St. 387; Clarice v. Spaulding, 20 N. H. 316; Nelson v. Godfrey,12 111. 20; Salisbury v. Marshall, 4 C. & P. 65 (19 E. O. L. 275) ; Edwards v. Hetherington, 7 D. & É. 117 (16 E. C. L. 271); Cowie v. Goodwin, 9 C. & P. 378 (38 E. C. L. 162) ; Collins v. Barrow, 1 Moo. & E. 112; Edgerton v. Page, 20 N. Y. 281.</p> <p>'This action cannot be maintained. The plaintiffs were tenants at will from month to month. There was no written lease. There was no covenant, express or implied on the part of the defendants, that the premises were fit for habitation or use. Smith’s L. & T. (e'd. of 1856) 262; Taylor’s L. & T., sec. 381; Button v. G-errish, 9 Cush. 89 ; Foster v. Peyser, ib. 242; Welles v. Castles, 3 Gray 326 ; Leavitt v. Fletcher, 10 Allen 121; Cleoes v. Willoughby, 7 Hill 83 ; Sutton v. Temple, 12 M. & W. 52; Hart v. "PFmcisor, ¿6. 68. The plaintiffs took the premises as they found them, under no obligation to remain, and with no agreement or covenant that they were fit for the purposes for which they were hired.</p> <p>It cannot be claimed that there was any fraud, concealment, or negligence on the part of the defendants, for the case finds that the attention of the plaintiffs was called to the sewer. They were informed that the water sometimes flowed back from the sewer into the sink, and that a plug had been provided to insert in the sink pipe to prevent the water from flowing back.</p> <p>The case also finds that this was all the danger the defendants had any reason to apprehend ; that the branch sewer leading from the main sewer was properly constructed; that the falls of rain on the 4th of August and on the 19th and 23d, the times when the injuries complained of were done, were so sudden and so great that the capacity of the sewers was not sufficient to receive and conduct it away, and that the streets were flooded, and the water was thrown back into the branch sewer with such force as to make a breach in it, causing the water to flow through the ground into the cellar and do the damage complained of.</p> <p>The damage caused to the plaintiffs was occasioned by no act or omission of the defendants. It all arose from the insufficiency of the city sewer to discharge the water rushing into it in times of sudden and severe showers. We say, then, that upon these facts it is clear that there was no fraud, concealment, or negligence on the part of the defendants, and they clearly cannot be held liable.</p>

Information in the nature of a quo warranto, filed by the attorney-general at the relation of Daniel W. Lane against Nathan P. Hunt, alleging in substance that the returns of votes given in the several towns in the county of Hillsborough, at the annual election in March, 1874, for the office of comity treasurer for the ensuing political year, were made out, signed, certified, sealed, directed, and transmitted to the clerk of the supreme court for said county, as required by…

Assumpsit, by Henry D. Pierce against the county of Hillsborough, to recover one half of certain fines received by the county of O. P. Green-leaf and J. H. Lovering for violations of the law prohibiting the sale of spirituous liquor. The plaintiff claimed to recover one half of the fines imposed on Greenleaf and Lovering for keeping for sale as hereinafter mentioned. The case was tried upon the general issue.

Indictment against James Shanahan, upon sec. 5, ch. 3, Laws of 1870, for wilfully suffering one Fisk to occupy a saloon for the illegal sale of intoxicating liquors. The defendant lived over a store in which he carried on business, within a few feet of the saloon, in the village of Milford.

<p>Petition for partition, by John Timón against Michael Moran. A committee appointed at the last term, reported at the January term, 1874. The property consists of a lot of land and a house of three tenements. The plaintiff has lived many years in the east and the defendant in the west tenement, and the middle one has been let by both parties to other persons. The report assigns the east and middle tenements to the plaintiff', and fixes $500 as the sum to be paid by him to the defendant. Upon the coming in of the report, the defendant offered to pay the plaintiff a considerable sum more than $500 if the parts assigned to each could be exchanged. The court ordered the report to be recommitted for the purpose of the committee hearing the parties in relation to this offer. Another hearing was had before the committee, and their report was returned unaltered on this point. The court inferred that the committee felt bound to appraise the property assigned to each party according to their judgment of its value, and that their judgment was not altered by the second hearing. The defendant then made several motions, and furnished the following affidavit:</p> <p>“ I, Michael Moran, on oath depose and say, that at the hearing before the committee appointed to make partition between me and Timón of our estate in common, situate in Nashua, I offered through my counsel to give $650 for the share of the estate assigned in the report to Timón, instead of the $500 which he was ordered to pay by the report. This offer was made openly to the committee and to Timón and his counsel, and my counsel then requested the committee to ask of Timón whether he would give more than that, or was willing to take that. The committee declined to ask this of Timón, and I, then, through my counsel, offered a paper to the committee on which was the following proposition: That I would give or take $850, at Timon’s option; that if he would put on paper a sum which he would take, to be seen only by the committee, I would give $50 more, whatever the sum might be, provided the sum with $50 added did not exceed the $850, or if with the $50 added it came within $50 of my $850,1 would, take $800, or give $850, at Timon’s option. The committee declined: to receive or consider the paper or the proposition contained in it, ancL declined to ask Timón to submit on paper for tlieir inspection any sum which he would take. Timón having testified before the committee, my counsel, in cross-examining him, inquired what in his opinion was the fair difference in value between the part of the estate on the east side of the dividing line, as established in the report, and that on the west, and he declined to answer, and declined to answer any question as to what he thought ought to be paid or to be received by him or by me to make the division equal, in case he or I should have the east part, and the committee declined to require of him to answer any such question. When the hearing was about being closed, I testified under oath that I deemed $850 to be a fair sum to be paid by the party who had the east part; that I would give that sum, or take it, at Timon’s option. I made said propositions and offer in good faith, and am now ready to pay said sum of $850, or take it, at Timon’s option, if he chooses that I pay it to him, — I to take the east part, as the committee propose to divide the estate, or, if he chooses to pay it, he to take the east part.” Signed and sworn to.</p> <p>The court reserved the question, whether the court or the committee had power to appraise the difference in the values of the parts to be assigned to the parties by the offers of the defendant, or to apply the principle of an auction sale in any way, instead of the judgment of the committee upon the question of the difference of values, and what order should be made.</p>

<p>Trustees may apply to this court for aid and direction in respect to invest- “ , ^ . . ments and change of securities.</p>

Assumpsit, commenced December 4,1872, upon a written agreement made on the fifteenth day of October, 1870, by which “ said'Joel Jenkins agrees to let, and the said N. Abbott & Son agree to lease, for the term of two years from the fifteenth day of November, 1870, all the right and privilege of laying or putting down concrete paving in the town of West Roxbury, Mass., in consideration of the sum of eight cents per square yard royalty, to be paid to the said Joel Jenkins or…

Case, by Charles R. Hardy against the town of Keene, to recover damages for an injury alleged to have been received by the plaintiff, while travelling on a highway in Keene called Beaver street, in consequence of the falling of a derrick. This is the same case that is reported in 52 N. H. 370.

Trespass, guare clausum, by Sophia V. Hoit, administratrix of Rebecca Very, against The Stratton Mills, for breaking and entering the plaintiff’s close and taking timber therefrom, between April 1, 1866, and February 28,1870. There was also a count in trespass de bonis for taking timber and wood. Plea, the general issue, with a brief statement of defence, that the defendants entered under a license to remove the timber, which was the property of the defendants.

Assumpsit, by Sarah W. Fosgate, executrix of Lockhart Fosgate, to recover the sum of seventy-five dollars which the plaintiff alleges was found due from the defendant to the plaintiff’s testate, upon a settlement of their accounts November 13, 1869. The defendant offered himself as a witness to testify to matters which he claimed were not within the knowledge of the plaintiff’s testate, and about which he, if living, could not for that reason testify.

Indictment, charging that the respondent, on the first day of April, A. D. 1871, at Keene, in the county of Cheshire aforesaid, with force and arms, and from said day until the day of the finding of this indictment, did and ever since has continued to and still does lewdly and lasciviously associate and cohabit with one Charlotte M. Johnson of said Keene, single woman ; he, the said Thaddeus B. Clark, during all the time aforesaid, being a married man and having a lawful…

Bill in equity, as follows: Leonard Bradford, of Washington in said county of Sullivan, yeoman, complains against Elbridge Bradford of the same Washington, yeoman, and says that prior to 1852 the said Elbridge went from New Hampshire, where he had been residing, to the state of Illinois, and that in the said year 1852 he returned to the home of the plaintiff in said Washington with his family, consisting of his wife Lovina Bradford and two children, all of them in a poor and…

Indictment, against James A. Archer for an assault with intent to commit rape upon the person of Amanda Heaton, in October, 1873. Before the trial, the respondent, who had no property, moved for state process to compel the attendance of witnesses in his behalf. The court ruled that he was not entitled to it, and denied the motion; to which the respondent excepted.

Assumpsit, to recover for a bill of liquors, amounting to 1193.16, alleged to have been sold and delivered by the plaintiffs to the defendants, at Cleveland, Ohio, on March 25, 1870. The plaintiff Warren H. Corning is a wholesale liquor dealer, doing business under the name of Corning & Co. at said Cleveland.

Assumpsit, by Hiram Orcutt against D. S. Hougli, administrator, and J. W. Gerrish, trustee.

Assumpsit, for goods sold and delivered, and bargained and sold. It was agi'eed by the parties to submit the following statement of facts, for the pui'pose of raising the questions of law to bo determined thereon: On or about the first of November, 1868, the defendant proposed to buy of the plaintiff a pair of oxen, for the sum of one hundred and twenty-five dollars. A bargain was struck between the parties for the oxen for that sum.

<p>A levy on premises, of which the execution debtor is in possession claiming a homestead therein, made without any application on the part of the debtor for the assignment of a homestead to him, is valid against a grantee of the debtor, whose deed is fraudulent and void as to creditors5 although the value of the premises does not exceed the amount exempted by law from attachment or levy.</p> <p>It is not impossible for a conveyance of property, which is exempt from attachment or levy, to be fraudulent and void as to creditors.</p>

<p>In trespass guare clausum, fregit, and for cutting down and carrying away trees, the' measure of damages is the amount of injury which the plaintiff suffered from the whole trespass taken as a continuous act: thg increased value of the trees, occasioned by the labor of the defendant in converting them into timber, is not to he included.</p>

<p>Private railroad — Highway— Obstruction — Negligence.</p> <p>The defendants, being owners of a private railroad, with the consent of the W. M. Railroad Corporation, were used to run their cars and engines over a part of the track of said corporation, including a highway crossing. Held, that, while thus in occupation of the track, they were to be considered proprietors of the railroad, so far as regards their rights and liabilities in obstructing the crossing, under Gen. Stats., ch. 148, sec. 7.</p> <p>That statute is directed to the object of protecting travellers against delay from the obstruction of cars, &c., at railroad crossings; its violation, therefore, does not create an absolute liability for damage which is not caused directly by such delay.</p> <p>The defendants left their cars standing across the highway for more than two minutes. While the highway was thus obstructed, the plaintiff’s horse was driven up to the crossing, and, after being delayed more than two minutes, took fright when an engine was attached and the cars started, ran and was killed. Held, that the plaintiff must show actual negligence or fault on the part of the defendants before he could recover.</p>

Debt upon a bond dated October 5, 1866. John E. Morse, one of the defendants, pleaded in abatement that “after the said supposed cause of action in said declaration mentioned had accrued, he the said John E. Morse was duly adjudged a bankrupt, under the act of congress entitled an ‘ An act to establish a uniform system of bankruptcy throughout the United States.’ ” The plea sets forth that a discharge in bankruptcy in due form of law was granted under said act, unto him the…

Covenant, by Charles Woodman against Seth Spencer and Mary Spencer. The action having been referred, the referees made the following report.

<p>Assumpsit, by Dearborn Perkins against Dearborn J. Clay, for a breach of an alleged contract made with the defendant, by which the plaintiff bought of the defendant his cart and business as a butcher, and the defendant agreed not to engage in the business again for two years.</p> <p>The parties agree upon the following facts in this case, for the purpose of determining the questions of law arising thereon: Prior to the first day of May, 1868, the defendant had been engaged in the business of a butcher in Danbury. At that time, he made a bargain with one Horace W. Heath to sell him his meat-car't, tools, fixtures, and the good-will of the business, for the sum of ninety dollars; and as a part of the same trade, he agreed with Heath that he would not again go into tliat business, in Danbury or vicinity, so long as he [Heath] wanted to ■carry it on, and run his cart over the same route which the defendant had formerly run. Heath about the same time sold out to the plaintiff. During the negotiations for the sale, the plaintiff declined to purchase unless he could have the benefit of the agreement of the defendant, in relation to his again going into business, the same as had been made with Heath. The defendant was consulted, and apprised of negotiations between the plaintiff and Heath; and thereupon it was agreed between the plaintiff, the defendant, and Heath, that the plaintiff should buy out Heath and pay him ninety dollars ; and the defendant agreed -with the plaintiff that he would not carry on the business of a butcher, nor put another cart upon the route aforesaid, for two years; and this suit is brought for the damage arising from a breach of said agreement.</p> <p>No part of the agreement was'ever reduced to writing.</p>

Debt, by Sarah K. Hibbard and Alonzo P. Carpenter, executors of Harry Hibbard, against Joseph Clark and trustees, upon a judgment. The writ was in common form, and was returnable at Haverhill in the western judicial district of said county, on the third Tuesday of March, 1874.

Troyee for a musical instrument. After entry in court, the action was referred by agreement of the parties, under a rule of court, to a referee, who reported as follows : “ The suit is trover for an ‘ E flat cornet ’ of the alleged value of §>25. The writ is dated March 1,1873, and is brought by the plaintiffs, who are described as ‘ an association uuder the name and style of the Danbury Cornet Band.’ Plea, the general issue.

<p>Trespass, by Eben T. Bailey against Shem G. Ackerman, Harvey Locke, and Horace Sanders, for taking and converting to their own use four of the plaintiff’s oxen. It is agreed that the defendants were selectmen of Alexandria in 1870 ; that the plaintiff was a resident of that town, and was assessed in the taxes of that year ; that one Walter E. Simons was collector of taxes in the town for that year, and that Simons, as collector, seized and sold four of the plaintiff’s oxen in satisfaction of his tax. The tax list committed to Simons by the defendants is contained in a small book, which is made a part of this case for the purpose of reference. The warrant, which is in the usual form, is contained in the first part of said book, and is properly signed and sealed. On the next page after the warrant is the following: “ The selectmen of the town of Alexandria give notice that they have delivered to Walter E. Simons, collector of taxes, a correct list of the taxes, together with a warrant in due form of law for collecting the same ; and that by a vote of said town, to all persons who shall voluntarily pay the collector, a discount will be made on their taxes, as follows:</p> <p>“ To such as pay on or before the-day ■-per cent.,” &c.</p> <p>SHEM G. ACKERMAN, I Selectmen HARYEY LOCKE, V of</p> <p>HORACE SANDERS, J Alexandria.</p> <p>May 1,1870.”</p> <p>After three blank pages, the names on the list commence as follows: “ District No. 1, John G. Morrill, 21.45,” and extends over some thirty pages.</p> <p>The list is not signed at the end thereof by the defendants, nor do their signatures appear in said book elsewhere than as before stated.</p> <p>The question of the sufficiency of the list was reserved.</p> <p>The purported tax list is insufficient, invalid, and void, both upon general principles and under express decisions. Blackwell on Tax Titles (3d ed.), 34, 60-63, and cases cited; Chase v. Sparhawk, 22 N. H. 134; Gordon v. Bundlett, 28 N. H. 435 ; Cass v. Bellows, Coos Co., Dec. term, 1856; Copp v. Whipple, 41 N. H. 273 ; Colby v. Bussell, 3 Greenl. 227; Foxeroft v. Nevens, 4 Greenl. 72; Kellar v. Savage, 20 Me. 199; Sibley v. Smith, 2 Mich. (Gibbs) 498. The decision contra in Thompson v. Currier, 24 N. H. 237, is not supported by reason or by precedent. It will be noticed, moreover, that the opinion in that case makes no reference to the case of Chase v. Sparhawk, which had not then been reported; and it may therefore well be urged, if not conclusively presumed, that Judge Bell was not aware of that case, or that it escaped his attention when he delivered the opinion in Thompson v. Currier, which even he overruled a few years later in Gordon v. Bandlett.</p>

<p>Burden of proof — Preponderance of evidence — Distinction between them.</p> <p>A sale of a chattel by the mortgagor, with the consent of the mortgagee, will convey a good title to the purchaser, even though such consent be not in writing, or, if it be so, though it be not entered or indorsed upon the mortgage or the record of the same.</p>

Oase, by Francis L. Brown against The Grand Trunk Railway, to recover damages for the loss of twenty gallons from a barrel of kerosene oil, carried by the defendants for the plaintiff from Portland, Maine, to North Stratford, N. H.; also, for an injury to ten barrels (of a lot of fifty barrels) of flour, carried by the defendants for the plaintiff from Island Pond, Yt., to said North Stratford, by wetting, soaking, and impregnating it with kerosene oil.

Assumpsit, by Albert Barker against James A. Hibbard. The parties agreed to the following statement of facts : The plaintiff is a practising attorney of this court, and the claim is for services in defending the defendant in a suit or process of bastardy. The defendant was at the time a minor, who had been emancipated by his father.

<p>Nonsuit — Auditor's report — Practice.</p> <p>An auditor made his report at the November term, 1869, and the plaintiff elected a trial by jury. At the April term, 1871, the case not having been opened to the jury, the plaintiff moved to become nonsuit: the court denied the motion. Held, that there was no error in the ruling.</p>

Case, for flowing the plaintiff’s land, on the Androscoggin river, in the town of Berlin, below the defendants’ dams. The defendants pleaded the general issue, and filed the following brief statement of defence: That the general court of the state of New Hampshire, at tlieir session in June, 1852, passed an act of which the following is a copy: An Act to incorporate the Androscoggin River Improvement Company. Section 1.

<p>Trespass for an assault and battery and false imprisonment. The defendant justified as collector of taxes of the town of Jefferson. The defendant produced the record of his appointment by the selectmen, and also the original appointment, and neither the record nor the original showed any evidence that the defendant was sworn into said office, except the following certificate at the bottom thereof: “ Personally appeared W. W. Holmes and swore to the above affidavit.” The defendant moved that the record be amended so as to show that the oath required by law was administered ; and, upon satisfactory proof being shown to the court that the fact was so, said amendment was ordered to be made. The plaintiff objected, that, inasmuch as the record did not show that the defendant was collector de jure at the time of the arrest, the amendment would not cure the defect so that the defendant could justify his acts done before the amendment was made. The court ruled otherwise, and the plaintiff excepted. The plaintiff offered to prove that the warrant for the annual town-meeting, at which the persons signing the defendant’s appointment were elected selectmen, was not posted at the place of the meeting as required by law. This evidence was excluded, and the court ruled that it was sufficient to show that they were acting selectmen, that is, selectmen defacto, and the plaintiff excepted.</p> <p>A verdict was ordered for the defendant, which is to stand or be set aside according to the opinion of the whole court upon the foregoing exceptions.</p> <p>Case reserved.</p>

Assumpsit, by Horace J. Chandler against E. S. Coe & S. R. Scarce, brought to recover a balance claimed to be due from the defendants for cutting and drawing logs in the winter of 1865 and 1866, and for delivering the same in the Androscoggin river in the spring of 1866. Plea, the general issue. The writ is dated October 8, 1870.

<p>This is an action of covenant. It appeared that the defendant was guardian of Morris Clark, 2d, a minor,j and that his appointment was made by the probate court of the district of Caledonia in Vermont. tJThe ward owned certain land in the town of Groton, Vt., and the defendant procured a license to sell it, and conveyed the same, as guardian, to the plaintiffs, by deed dated August 4,1854. In said deed are the following covenants: “ And I, the said Morris Clark, for myself and my ward, and his heirs, executors, and administrators, do covenant with the said Morris and others [the plaintiffs], their heirs and assigns, that until the unsealing of these presents I am the sole owner of the premises, and they are free from every incumbrance ; ” for the breach of which covenants this suit is brought. One lot of land included in the deed was included by mistake, and neither the defendant nor his ward had any title to it, though the plaintiffs did not know of the mistake, and they really bought and paid for the number of lots included in the deed. The defendant settled with his ward December 9,1854, and paid in the money his due; and the ward is now dead, and his estate has been settled in the insolvent course and distributed. The plaintiffs never had possession of the lot so conveyed to them by mistake. The damages are to be the amount of the purchase-money and interest, as it should be apportioned to said lot; and if the parties cannot agree, the clerk may assess the damages, if damages are to be assessed. The defendant claims that the action is local and cannot be brought and tried here, and that the defendant is not bound by said covenants. The writ and deed may be referred to. Upou this agreed case the presiding justice is to decide, and the party against whom he decides may have exceptions.</p> <p>The court, Ladd, J., ruled pro forma that the action is not local, and the defendant excepted.</p>

<p>Libel for divorce.</p> <p>Charles A. Whipp, of Northumberland, in said county, the husband of Sarah E. Whipp, of said Northumberland, respectfully libels and gives this honorable court to be informed, that he was lawfully married to the said Sarah E. Whipp, to wit, at Saco, in the state of Maine, September 19,1853, by Elias Libby, a minister of the gospel; that the libellant and libellee have ever since that date lived together, and have had four children, to wit, Ivory. B., who is nineteen years of age, Frank D., who is seventeen years of age, and Charles C., who is fifteen years of age; that the libellant and libellee have both lived. at said Northumberland for the past thirteen years, and now live in said town; that the libellant since their intermarriage has always behaved himself as a faithful, chaste, and affectionate husband towards the said Sarah E. Whipp, but that the said Sarah E. Whipp, wholly regardless of her marriage covenants and duty, on divers days and times since the said intermarriage, to wit, on January 18, 1874, at said Northumberland, has committed the crime of adultery with divers lewd men, to wit, with one Phineas Stark, of said Northumberland, and with divers other lewd men whose names to the libellant are unknown; that on or about January 1,1864, while the libellant was away in the army, the said Sarah E. made a purchase of a piece of land situated in said Northumberland, and described as follows : * * and the purchase-money for said premises has been paid by the libellant; and the libellee, without the knowledge or assent of the libellant, procured a deed of said premises, to be executed by John Eames to the said Sarah E. Whipp, dated April 19, 1869, and has caused said deed to be recorded in the record of said county; that the said premises are worth about nine hundred dollars, and that is all the property that the libellant is worth; that said libellee represents and claims that she can hold said premises as her own property, and that she shall sell and convey away the same: wherefore the libellant prays that he may be divorced from the bonds of matrimony between himself and his said wife; that said premises may be decreed to him, and that the libellee may be ordered to relinquish the same to the libellant, or a trustee to be appointed by this court for tlie maintenance and education of said minor children; that the custody and education of said four children may be committed and entrusted to the libellant. The libellee demurred, and assigned the following causes : (1) Said libel is multifarious ; (2) that said court, sitting for the purpose of hearing and determining a libel for divorce, will not exercise chancery powers; and (3) that said libel seeks the granting of a divorce to the libellant, and the enforcement of a resulting trust in chancery, which matters the court will not take jurisdiction of in the same proceeding. The court, having granted a continuance of the cause before demurrer on the ground of the absence of material witnesses, transfers the question whether, by virtue of an allowance to the libellee or otherwise (there being no evidence of her inability to defend the suit without such allowance), costs can be taxed against the libellant as terms for such continuance.</p>

Debt, by Jacob Benton against Stephen Burbank and others, upon a bond, signed by Stephen Burbank as principal and by the other defendants as sureties, conditioned to “ indemnify said Jacob Benton against all loss, cost, damage, and expense to which he may be subject” by reason of becoming surety upon a recognizance for the appearance of Charles A. Burbank, a son of Stephen, at the November term of court in Coos county, in 1864, to answer to an indictment found against him at…

Trespass, by Samuel Orr against Elihu T. Quimby, for breaking and entering the plaintiffs close, in Goffstown, on January 1, 1869, and on other days between that time and the date of the plaintiff’s writ, which was July 7, 1873, and cutting down, carrying away, and converting to his own use 710 trees and 195 cords of wood.