Volume 55 — New Hampshire Reports

This was an appeal from the settlement of an administration account in the court of probate for the county of Rockingham. The case was referred to an auditor, who reported sundry facts in such manner as to raise some questions of law, and other questions of fact. The questions of fact being, so far as determined by the court, conclusions from certain facts stated by the auditor, and involving no principle of law, are not necessary to be reported.

In Equity. The bill was brought by John G. Ordway, of Epping, in said county, administrator of the goods and estate of Charles B. God-frey, late of said Epping, deceased, against Winthrop N. Dow, of said Epping, executor of the last will and testament of Mehitable Godfrey, late of said Epping, deceased, and residuary.legatee in trust under the said will of the said Mehitable.

Indictment, charging- the respondent with keeping intoxicating liquor for sale, tried in the court below before Fostek, C. J. The respondent filed the following bill of exceptions, which was allowed: “The defendant excepts to the ruling of the court, that the state need not show that the defendant was not licensed, and asks to have the verdict set aside because there was no evidence that he was not licensed.”

The declaration is as follows: “ In a plea of trespass for that the said John E. Chesley and Prank Dodge, on the 20th day of May, A. D. 1873, at said Rochester, with force and arms shot and killed a certain dog of the plaintiff, then and there found, and being of great value,” &c. The plaintiff moved to amend his declaration by inserting the words “ having around his neck a collar of leather, with a brass plate attached thereto, with the name of said Paul A. Hurd, the owner…

In Equity. Bill filed May 15, 1873, by James H. Plummer against George W. Sanders and the Lake Village Savings Bank. December 1, 1878, Sanders went into bankruptcy ; and Perley Putnam, his assignee, appears and defends. Sanders filed an answer. Counsel for the bank said they supposed the case would not be pressed against the bank, and if it was, they should desire to demur. The plaintiff insisted on prosecuting the case against the bank as well as against Sanders.

Bill in Equity. The plaintiff in this suit is the executor of the last will and testament of Eliza L. Copp, of which the following is a copy: “ Be it remembered that I, Eliza L. Copp, of Wakefield, in the county of Carroll and state of New Hampshire, do make this my last will and testament in manner following, to wit: First — I give and bequeath to Amasa C. Tredick, son of John Tredick, one hundred dollars, to be paid by my executor in one year after my decease.

<p>A bill in chancery contained the allegation that certain acts of the defendants were in violation of law, and of the charter and by-laws of the corporation. It was held, on demurrer, that these allegations were not Avell pleaded, and therefore not admitted by the demurrer.</p> <p>The demurrer being ore terms, the plaintiff had leave to amend without terms.</p>

<p>In an action of assumpsit for not accepting goods sold, it appeared that the defendant agreed to take the goods and pay the plaintiff their cost for the same; there was also evidence tending to show that he after-wards refused to perform his contract by accepting the goods. Meld, that a nonsuit could not be ordered even though there were no evidence as to the cost of the goods.</p> <p>Evidence of the value of goods is admissible-on the question of their cost.</p> <p>Whether a memorandum, which a witness knew when it was made to be correct, can go to the jury as evidence, depends upon whether the Avit-u ess, after examining it, is able to state the fact from memory.</p>

Case, by John H. Pearson & Co. against William A. Wheeler and others, to recover for loss and injury to a quantity of flour occasioned by fire at Ogdensburg, N. Y., July 28,1864.

The facts are sufficiently stated in the opinion of the chief justice. All questions were, by an agreement filed in the case, waived, excepting as to the right of the appellant to take the appeal, and as to the widow’s right to take as heir of her husband, John D. Martin.

Assumpsit, on three notes signed by the defendant and payable to the plaintiffs, on demand, — one for 017.75, dated Nov. 2,1867 ; one for 05, dated May 10, 1868; and one for 022.50, dated May 11, 1869. Each note contained tbe following stipulation: “ The above note is to be paid for tbe purpose and in pursuance of tbe act incorporating said company, and tbe by-laws thereof, and not otherwise.” Writ dated Dec. 18,1871.

Action on the case, by Lucy Garland against Nancy Towne, for negligence.

Trespass, qii. cl., by James Baker against Amos Chase, for entering the plaintiff’s close and carrying away stone. Tried by the court as upon the general issue, and a special plea. In 1848, Enoch Gove, owning a farm, verbally agreed with the defendant’s father to sell him a large rock, or all he wished to quarry from it, for five dollars.

The following facts were agreed by the parties for the purpose of obtaining the opinion of the court thereon. The action is assumpsit on a policy of insurance. On the first day of January, 1868, the plaintiff, Austin W. Gee, obtained a policy of insurance from The Niagara Eire Insurance Company on his house, barns, furniture, and produce in Marlow, N. II.

IN Equity. An issue was framed and tried by the jury before Smith, J. Yerdict for the plaintiffs. The plaintiffs moved for a decree, according to the prayer of the bill. The defendant moved for leave to review, and that judgment be so rendered for the plaintiffs as to protect the rights of the defendant while the review is pending. The plaintiffs object that the review will not lie.

Teusteb process. It appeared at the bearing before Smith, J., by the deposition of the trustee, Granville Rowell, taken by the plaintiff, that the principal defendant entered into a written contract to iron twenty-four carriages for the trustee for the sum of $400 ; that during the performance of said contract the defendant appropriated to 1ns own use stock and materials belonging to the trustee, without the permission of the trustee, and without his knowledge till after the…

<p>A retrial of a libel for divorce cannot be granted on the ground that the decree was obtained by the fraud and perjury of the libellant and his witnesses, w'hen no fraud of the libellant is shown except by implication from the charge of perjury.</p>

Case, commenced in the lifetime of Levi D. Jewell, who died before the trial, to recover damages for a personal injury to the deceased alleged to have been caused by the carelessness and neglect of Thomas Monneghan, an employ é of the defendants, in wheeling out and placing upon the platform of tlie defendants’ freight-liouse, at Gorham, N. H., a crate of crockery belonging to C. L. Plaisted, of Jefferson. Pica, the general issue.

<p>Assumpsit, tried before'Ladd, J., to recover a balance claimed to be due on an account for intoxicating liquors sold and delivered by the plaintiffs to the defendants in 1868. The liquors sold were embraced in three bills, the dates and amounts of which were as follows :</p> <p>(1) March 23, 1868, $530.28; (2) August 11, $273.76; (3) December 7, $71.26 — $875.30.</p> <p>The credits, including $50 discount on a barrel of alcohol, which is allowed by the court, were as follows:</p> <p>May 21,1868, by cash, $80; July 3, $82; August 29, $75 ; October 9, $100 ; December 5, $160 ; February 15,1869, $110 ; April 15, $61; May 25, $30 ; October 28,1870, $50; May 9,1871, discount on alcohol, $50 ; horse, $127 — $825.</p> <p>The cause was tried by the court, and the following facts were found specially, whereupon such judgment is to be rendered as may be ordered by the whole court.</p> <p>Before the first bill of liquors was ordered, in the spring of 1868, two, at least, of the three selectmen of Columbia, upon consultation, determined to appoint a liquor agent for the coming year, and that the selectmen, on behalf of the town, should purchase liquor and supply the agency therewith, and that the purchases for that purpose should be made by A. H. Bundy, one of the board. Accordingly, Bundy saw P. S. Benjamin, an agent of the plaintiffs, and gave him an order for the liquor in the first bill. Benjamin forwarded the order to the plaintiffs in Boston, and they there delivered the liquors to a common carrier (charging cartage), directed to the town of Columbia; and they were received according to the bill. In the meantime the selectmen, or at least two of them, had determined to appoint one Harvey, agent, and about the time the liquors arrived, and before they were put on tap, executed and delivered to Harvey an appointment as liquor agent for the ensuing year, in due form ; but the same was never recorded in the town-clerk’s office, and there is no certificate upon it that Harvey ever took any oath of office. The other two bills of liquor were ordered by Bundy of Benjamin in the same way, and forwarded by the plaintiffs in the same way, except that they were directed to Harvey, liquor agent, instead of the town. All the selectmen understood that the purchases were made on behalf of the town; that the business of the liquor agency was the business of the town, and so treated it throughout their official year, and so reported upon it to the voters of the town at the annual meeting in 1869.</p> <p>It did not appear that the plaintiffs, at the time of either of the sales, held any appointment from the governor of New Hampshire to supply agents with liquors. But when the second and third bills were sold, the plaintiffs, having a license in Massachusetts, had a legal right to make the sales in that state, and, so far as regards any questions that arise in this case, I find that all three sales were made and completed in Massachusetts. All material statutes of Massachusetts are to be regarded as proved, and may be referred to on the argument. The specification printed in the case was understood to be a copy from the plaintiffs’ book, and receipts were given for the money as paid, to apply generally on account. Said receipts may be referred to in the argument. It appeared that the plaintiffs had no authority to sell liquors under the laws of Massachusetts at the time of the first sale. If the plaintiffs can recover on the foregoing facts, they are to have judgment for $82.11, as of the November term, 1873.</p>

The complaint charged that the defendants, on, etc., at, etc., “ in a certain public place, to wit, in a certain school-house in which a singing-school was then and there being held, did… Held: did make a great brawl and tumult, and stamped their feet on the floor, hissed, used loud and saucy language, and were guilty of rude, indecent, and disorderly conduct. The defendants moved to quash the complaint, which motion was overruled, pro forma, and the defendants excepted.

In Equity. The bill alleged that a certain tract of land had been conveyed to the defendant, Congdon, by the town of Pittsburg, on certain express trusts specifically set out in the bill, and the answers fully denied the trusts, and issues were framed for the jury. Trial before Ladd, J., November term, 1873.

<p>Legacy — Lower—Election Toy Widow.</p> <p>A testator gave to his widow a legacy of $400, and made no other mention of her in the will. After other bequests, he made B. his residuary legatee. Held, that there was nothing in the will which by the common law, or under the statutes of this state, put the widow to an election, but that she was entitled to the legacy in addition to her rights at law in the real estate of her husband.</p> <p>Where there is a residuary legatee who is also executor, acceptance by the widow of the provision made for her by the will may have the effect, under chapter 176, section 13, General Statutes, of a waiver of her distributive share in the estate.</p>

Assumpsit, by William S. Hadley against the New Hampshire Eire Insurance Company, upon a policy of insurance. It appeared that the plaintiff procured the insurance and paid the premium. He testified that he procured the policy with 'the consent of Mr. Philbrick, the owner of the property insured, but the defendants claimed that the policy was procured without the knowledge or consent of said Philbrick.

Case, for flowing tlie plaintiff’s meadow, situated on the shore of Jenness pond in Northwood.

Case, by the town of Laconia against Hiram Gilman, for building a stone wall in a highway, thereby obstructing the public travel, making the highway dangerous, depriving the town of their rights and easements therein, preventing the town from keeping it in a suitable con-o dition for the public use, and compelling the town to remove a part of the wall at great expense. The defendant demurred. The declaration may be referred to as part of the case.

Case, by Hiram Gilman against the town of Laconia, for negligence in the performance of the duty of keeping a highway in repair.

The plaintiff was employed by the defendant, as an attorney-at-law, to procure for her a divorce on the alleged ground of extreme cruelty, and it is for services so rendered that suit is now brought. After the testimony had been taken, the proceedings for divorce were abandoned by her, and she directed the plaintiff to proceed no further, and the defendant thereafter lived with her husband as his wife until his death some year or two after.

This is an action of review of an action of assumpsit, brought’ by Charles C. Whittier (defendant in review) against the Hartford Fire Insurance Company (plaintiffs in review), upon a policy of insurance issued by the defendants. Tbe original action was tried by tlie jury, and on the trial exceptions were taken to the rulings of the court, and the case was reserved.

Appeal, by Almira Barnes and others against Hiram C. Abbott, from a decree of the judge of probate, approving in common form the will of Isaac E. Merrill. The appellants are his heirs at law, and the ap-pellee is his administrator de bonis non. The only issues sent down for a trial by jury were, whether the testator was of sane mind when the will was executed, and whether it was executed in the presence of three witnesses, both of which the jury found in the affirmative.

Bill in equity, by Luther D. Sawyer, executor of the last will and testament of John L. Hanson. The defendants are Ira Banfield, claiming as trustee, and the representatives of the residuary legatees under the will.

INDICTMENT, against John Gorham and William Mooney, charging the respondents with robbery from the person of one Stephen Lohiel. Plea, not guilty. Held: the question, under the state of public sentiment that overrules decisions of courts through legislation, cannot be considered as at rest. YI. In this connection the question occurs, On what grounds was Gorham charged in this indictment ?

Case, to recover damages occasioned by alleged defects in a highway. Plea, the general issue. In the fourth count in the declaration, the plaintiff claimed to recover damages for injuries to himself and horse, December 19, 1872, occasioned by the road being blocked with snow.

Assumpsit, before Smith, J., at the October term, 1874. The plaintiff sues in his individual capacity. The plaintiff is administrator of the estate of Alpheus B. Hoag, deceased. The estate is represented as insolvent. The principal defendant, Charles E. Hoag, presented his claim against the estate to the commissioner, who allowed the same. The commissioner’s report has been accepted, but the time for appealing therefrom has not yet expired.

Gage, as administrator with the will annexed of Andrew Stevens. The appellant, Moses Stevens, is a son of the testator, and was named executor in the will, but declined the trust, and recommended the appointment of the defendant. The case has,been sent to an auditor, from whose report it appears that the only matter in controversy is a sum of $498.94 cash belonging to the estate,which was stolen by burglars on the night of April 18, 1869.

These two actions—John B. Copp against the town of Henniker, and Caleb B. Flanders against the town of Warner—were case for injuries caused by defects in highways.

In this case, which is the same reported ante 36, the plaintiff having amended his bill by inserting a reference to the General Statutes, and to the charter of the Concord Railroad Corporation, sec. 2, which requires the directors of that corporation to choose a treasurer wdio shall give bonds to the corporation, with sureties to the satisfaction of the directors, in a sum not- less than twenty thousand dollars for the faithful discharge of his trust, and art. 7 of the…

This cause — Betsy Tucker, administrator, against Samuel J. Tilton— was referred under the provisions of the judiciary act of 1874. The referee reported his conclusions of facts and law as follows: This is an action of trespass for taking fifteen tons of hay. The plea is the general issue, and a brief statement justifying the taking by the defendant, as a deputy sheriff, upon a writ of attachment.

Debt upon a judgment recovered at the April term, 1874, of the supreme judicial court, by Annie Malony against Peter Waddle. The writ is dated May 4,1874. The defendant asked leave to file a set-off, embracing certain items of account against the plaintiff, all of which accrued before the writ wras sued out in the original action. Leave was granted by the court, to which the plaintiff excepted.

In the October trial term of the supreme judicial court, 1878, the plaintiff entered her petition for additional alimony, representing that on November 4,1871, it was decreed by said court that slie be divorced from her husband, James Spofford, and that the custody, care, and education of their minor child be given to her; that it was further ordered, that said James pay to said Ellen, as alimony, $285 in cash, and certain articles of property which said Ellen carried to the…

The petition is as follows: To the Supreme Judicial Court. Merrimack, ss. Respectfully represents Thomas Emery, William C. Piper, William L. Morse, R. H. Paine, Charles 0.

Appeal bv the sureties on the bond of Horatio N. Mason, administrator of the estate of Johnson Rolfe, from a decree of the judge of probate in the settlement of said Mason’s administration account. The following causes of appeal were assigned: (1) Because said decree charged said administrator with a balance of $4,502.87.

Assumpsit. March 19, 1870, Philo Chamberlin, James M. Cham-berlin, and Oren C. Lee, described as partners under the firm of J. M. Chamberlain & Co., sued out a writ against the defendant, returnable to the April term, 1870, of the supreme court for this county. The declaration contained the common counts for goods, wares, and merchandise sold and delivered, money had and received, &c., and an account annexed for flour and corn sold, and interest due, amounting to $1,210.09.

This is an appeal from the decision of the police justice of the city of Concord. The complaint was made to H. P. Eolfe, a justice of the peace throughout the state, who resides at Concord, by John 0.

PETITION, by Aaron Lord and others against the towns of Dunbarton and Bow, for a new highway, filed in the clerk’s office March 6, 1874.

<p>Insurance — Condition—Notice—Mistake—Construction of see. ÍB, eh. 157, Gen. Stats. — Breach of contract— Who may sue.</p> <p>The person to sue for the breach of a simple contract is the person from whom the consideration for the promise moves.</p> <p>The municipal laws of a state are necessarily referred to in all contracts made within the state subsequent to the enactment of those laws, and must govern and control them in all matters affecting their validity, construction, or discharge.</p> <p>The defendant corporation, a joint-stock insurance company, issued a policy insuring W. against loss or damage by fire to the amount of one thousand dollars on his house, &c.; “in case of loss, insurance to be paid to" C., who held a mortgage upon the premises to secure the payment of six hundred dollars. The insurance was obtained by C. with the consent of W. C. paid the premium, and W. had no negotiations with the company. Held, that C. was the proper party to maintain an action upon the policy, to recover not only to the extent of his own but also the interest of W. secured thereby.</p> <p>The policy contained a condition that it should be void if the premises should become vacated by the removal of the owner or occupant, without immediate notice to the company and consent indorsed on the policy. The buildings were occupied by the owner at the date of the policy, and continued to be thus occupied nearly a year, when they were vacated, and remained unoccupied until their destruction by fire nine months later. They were not destroyed by reason of exposure to any risk which it was the object of the condition in the policy to guard against, W. gave no notice to the company of the vacating of the buildings, because, not having obtained the insurance nor received the policy, he was ignorant of the condition therein; and C. gave no notice, because (without fault or negligence) he was unaware that W. had removed. Held, the failure to give notice was a “mistake,” within the intendment of the statute, which provides that “no policy shall be avoided by reason of any mistake or misrepresentation, unless it appears to hr /e been intentionally and fraudulently made; but the party insuring, in any action brought against them on such policy, may show the facts, and the jury shall reduce the amount for which such party would otherwise be liable as much in proportion as the premium ought to have been increased if no mistake or misrepresentation had occurred,” Ladd, J., dissenting.</p> <p>Held, also, that notwithstanding the mistake, and notwithstanding the fact that the buildings were not destroyed by reason of exposure to the risks of non-occupation, still, inasmuch as the company might have refused to insure the property, or might lawfully have charged an increased price for the continuance of the insurance if they had known of the vacating of the buildings, the amount of its liability must be diminished, as indicated by the statute.</p>

Weit of entry, dated August 20,1872, for an undivided half of a strip of land eight inches wide and about one hundred and twenty feet long, extending easterly from Elm street to Church street, in Manchester.

<p>Trustee process — Husband and wife.</p> <p>The transfer by husband to wife of a note payable to him or order, in payment of a loan previously made to him by the wife from funds which she held as her own individual property under the statute, is a valid transaction, so that the maker cannot afterwards be charged as the trustee of the husband on account of such note.</p> <p>It seems that a loan of her own money by a wife to her husband, in this state, may create a valid debt, for the recovery of which a right of action must exist in favor of the wife against the husband.</p>

Bill in equity, brought by Samuel Upton as guardian of John Rourke, Jr., minor son of John Rourke and his wife, Johannali Rourke, late of Manchester, both deceased, and alleging that said Johannali Rourke died seized of certain real estate situated in said Manchester, known as the whole of lot No. 262, and the easterly half of lot No. 261, on Manchester street; that during their lifetime, to wit, February 12, 1866, the said John and Joliannah Rourke executed and delivered to…

Trovek for two horses. Writ dated March 81,1874. Plea, the general issue. Trial before Rand, J., September term, 1874. The horses were taken at the plaintiff’s barn, in Nashua, March 25, 1874, by the defendant, under two mortgages given by George E. Robinson, one to the defendant, October 27,1878, duly recorded October 28, 1878, the other to one Charles W. Glidden, dated November 27,1873, recorded. November 28,1873, and duly assigned to the defendant, January 23, 1874.

Assumpsit on a promissory note, dated July 1, 1868, for $2,500. Defence, illegal and fraudulent consideration. Trial before Rand, J. The material facts are as follows: The defendant and one Barrett bad been doing business as partners, and were indebted to the plaintiff's father, John Winn. Having failed in business, they were negotiating a settlement with their creditors, and applied to John Winn to sign their composition deed, which he declined to do.

Case for defect in highway. The alleged defect was in Canal street (which runs north and south), between the carriage path and the east sidewalk, at a point nearly in a line with the south side of Middle street, which makes a junction with the east side of Canal street at a right angle. The question whether Canal street is a highway seemed so serious that the court restricted the trial to that question, for the purpose of first settling the law involved in it.

Whit op summons, to recover possession of a tract of land situate in Pitzwilliam. The writ is dated September 16,1872, and was returnable before a justice of the peace for Cheshire county, September 25, 1872. Notice in writing to quit the demanded premises on September 11,1872, was served on the defendant by the plaintiffs, September 2, 1872.

Assumpsit, upon a note of which the following is a copy: $25.00 Chesterfield, April 1, 1872. For value received, I promise to pay Henry Fletcher, or order, twenty-five dollars in one year from date, for the rent of five rooms; and the said Henry Fletcher is to build a barnyard fence ; and the said Thompson is to have all the land back of the house. Persis M. Thompson. Writ dated April 4,1873.

This is a bill in equity, brought by the plaintiffs, who are voters and tax-payers in Union school district in the village of West Swanzey, against the defendants who aro selectmen of Swanzey, to restrain them from assessing and collecting a school-house tax in said district, and building a new school-house therein.

<p>A testator disposed of his property by will as follows: “ I give and devise to my executors hereinafter named, — my brother W. T., and my son J. W. T., — in trust, my present dwelling-house, situate * * for the sole use, improvement, and benefit of my son J. W. T. and his heirs, subject to the particular interest of a part of the same before given to my wife, S. T.”</p> <p>S. T. having died, J. W. T. took possession of the premises, and after many years died, having devised the same to his wife, H. E. T. Held — the devise to W. T. and J. W. T., though without words of inheritance, passed a fee in the estate, which upon the death of the original testator vested immediately in J. W. T. by force of the statute of uses, said fee being qualified and incumbered, during the lifetime of S. T., by her “ particular interest ” therein; and on the death of J. W. T. his wife took, by devise from him, an absolute legal estate in fee-simple.</p> <p>The testator also bequeathed as follows : “ I give to the said W". T. and J. W. T., in trust, the sum of ten thousand dollars, to be made permanent and secure by mortgages on real estate, or otherwise, as said trustees may consider most advisable •, the interest of said sum to be disposed of by my said trustees in manner following, to wit, — two hundred dollars to be paid annually to my wife, ¡3. T., so long as she shall remain my widow, and no longer; the proceeds of the remainder of the interest of said sum to be paid to my son J. W. T. or his heirs, annually, or oftener should it be considered advisable and necessary, during the natural life of my son J. W. T.; and at his decease it is my will and intention to give the said sum of ten thousand dollars, in trust, to my grandchildren, in equal proportions,” &g. Held — on the death of the original testator this fund vested in his grandchildren, subject only to the trust in favor of S. T. and J. W. T.; and on the death of S. T. and J. W. T. the fund did not revert to the estate of the original testator, but the said grandchildren took an absolute title in the fund, discharged of all trusts.</p> <p>The words “in trust,” as used in the last line of the testator’s bequest above recited, were construed as words of designation and description merely.</p>

An attachment was issued against Rudolph Bates for contempt of court, in advising and procuring one Ellen P. Cheney to absent herself from attendance upon said court at said term, she having been duly summoned to attend and testify upon the trial of an indictment pending against one Henry J. Colby.

WRIT op entry, to recover a tract of laud situate in Washington, in said county. Plea, nul disseizin. Held: that although had the demise been by A to B for the term of his natural life simply, it would have been a demise for the life of B, his name appearing as the nearest antecedent to the relative his; yet as the demise was to B,his executors and administrators, and as there was a covenant for quiet enjoyment by B, his executors and…

Petition for the removal of a pauper, alleging that Maria Phillips, a poor and indigent person, having no visible means of support, and no legal settlement in any… Held: we claim that the conduct of Pattee was not such as to warrant the order for the return of the pauper made by the court in this case. We have two cases in this state which settle the law upon this subject — Goshen v. Hillsborough County, 45 N. H. 139, and Merrimack County v. Sullivan County, 45 N. H. 181.

<p>The plaintiffs gave to the agent of the defendants, an express company, a promissory note, telling him they wanted him to send it by express for collection upon the makers at H. The agent took the note, saying he would send it. The defendants’ line did not extend to H., but their practice was to deliver packages and demands for collection going beyond the terminus of their own route to R. & Co.’s Express at L. Between R. & Co. and the defendants there was no business connection, nor any division of profits or compensation for carriage or collections; but, with respect to demands for collection received by R. & Co. from the defendants, R. & Co. reported to the general agent of the defendants in Boston and followed his directions. Held, these facts did not, as matter of law, impose any obligation upon the defendants with regard to the collection of the note after its delivery to R. & Co.; but they were evidence of a contract on the part of the defendants to do with the note according to their custom and usage with respect to business of that description, even though a part of that undertaking was to be carried out at a point beyond their line, and by agents not in their immediate employ.</p> <p>Where the defendants’ agents were accustomed to receive notes for collection in the circumstances above recited — Held, the defendants were estopped to deny that such agents were authorized to make contracts on behalf of the company to transact business of such character beyond the limits of the defendants’ route.</p> <p>'The makers of the note had property sufficient to pay the same when the defendants received it for collection; but by reason of the defendants’ negligence with regard to its collection, the note became worthless upon the failure of the makers of the note. Held, the damages were the .amount of the note and interest.</p>

IN equity. The bill alleges that the plaintiffs, Joseph W. Gerrish, and George B. Nichols, John D. Parker, Jr., and William R. Dupeo, of Boston, Mass., under the firm name of Nichols, Parker & Dupee, September 30, 1873, applied to John L. Spring, of Lebanon, a duly appointed and constituted agent of the German Insurance Company, for additional insurance upon some fleece wool stored in a two-story framed storehouse near the railroad freight depot in said Lebanon, owned by…

[ TRESPASS, by Wilder & Co. against Levi Clough, for flowing the plaintiffs’ land and throwing back-water upon it, and injuring the plaintiffs’ mills, filling up his raceway and impeding his wheels, &c. Writ dated March 30,1872. The plaintiffs owned and occupied a mill-dam and privilege on Squam river in Ashland, and the defendant owned and occupied another mill, dam, and privilege on the same river, immediately below that of the plaintiffs.

Writ of error, by James A. Currier against Yirgil C. Gilman, dated the 7th day of May, 1874.

The action was entered at the March term, 1872. At this term the trustee, The .¿Etna Insurance Company, tiled a petition to remove the cause to the federal court, as follows: “The .¿Etna Insurance Company, trustee defendant in the above suit, respectfully represents, that it is a corporation duly organized under the laws of the state of Connecticut, having its principal place of business in Hartford in said state of Connecticut, and that it is a citizen of. the state of…

Case, for setting fire to and burning the plaintiff’s property. The defendants are a Vermont corporation. At the time the suit was brought (August 17,1872), the plaintiff was a citizen of New Hampshire, living at Monroe in this county, and is so set up in the writ. About the last of March, 1874, the plaintiff removed to St. Johnsburv in Vermont, in good faith, where he has taken up his permanent abode with his family with no intention of returning to this state.

The action is case, by Andrew C. Fifield against Herbert Bailey.

<p>When a creditor has a lien on a building, or on the land whereon the building stands, for labor performed and materials furnished, and seeks to perfect his lien by a suit and attachment under the provisions of ch. 125, sec. 12, Gen. Stats., and the debtor is adjudged a bankrupt, unless his assignee shall proceed in the United States courts sitting in bankruptcy to ascertain the lien and provide for its satisfaction out of the property, the creditor will be entitled to enforce his lien by his suit in the state court.</p> <p>In such case, if the assignee, upon being served with an order of notice, neglect to appear and show cause why judgment should not be rendered against the property attached, the creditor, upon establishing his claim, will be entitled to judgment in rem against the property covered by his lien.</p>

Assumpsit. The writ contains the common counts for money lent and advanced; money paid, laid out, and expended ; money had and received; interest; goods sold and delivered; and labor done and material furnished.

TRESPASS, for taking the plaintiff’s cow. The plaintiff was possessed of a farm partly in Lisbon and partly in Lyman. The plaintiff’s bouse was on that part of his farm situated in Lisbon. The plaintiff came into possession of this farm, so as to be taxed for it for the first time, in the year 1873, which is the tax in question. Previous to that time that part of the farm situated in Lyman had been taxed to the occupant of the farm, and paid without objection.

In equity. The bill is as follows: “ George Fales, Joshua Blood, and Hannah Blood, wife of said Joshua Blood, all of Pepperell in the county of Middlesex, and Charles Wilson and Clara Wilson, wife of said Charles Wilson, both of Boston in the county of Suffolk, all of the commonwealth of Massachusetts, and John M. Barber, Mary M. Barber, wife of said John M. Barber, Hiram Barber and Lucy A. Barber, wife of said Hiram Barber, all of Canaan in the county of Grafton and state…

Assumpsit, by John B. Ellsworth against Bradbury T. Brown. The cause was sent to an auditor, who represents as follows: “ I allow the items of the plaintiff’s specifications as follows, viz.: Dec. 6, 1872, To drawing 7,643 cubic feet at 115 per M. to $4.50 per M., $299.07 Eeb. 27, 1873.

In equity. The bill is brought by Ida M. Gordon and Ruth 0. Gordon, children and only heirs of Henry L. Gordon deceased, — the latter being a minor, and appearing by her guardian, Daniel A. Tilton,— against William Gordon, and the executrix and heirs at law of William W. George.

TRESPASS, quare clausum, for breaking and entering the plaintiffs close in Stratford, on the first day of January, I860, with a continuando, and cutting and carrying away the plaintiff’s wood and timber therefrom. Plea, the general issue, and a license as to one pine tree, cut in 1868. The close in question is lot No. 180 of the third division of the original right of Samuel Sherburn, and contains two hundred acres of land. The lot is uncleared, being a wood or timber lot.

The railroad was constructed over and across the appellant’s land and in the vicinity of the track, and upon both sides of it was a growth of pine trees. The defendants contended that by the construction and operation of the railroad the appellant derived advantages for getting his lumber to market, which advantages should be taken into consideration in diminution of the damages sustained by the appellant.

Assumpsit, for the use and occupation of the plaintiffs dwelling-house. The defendant conveyed the premises to the plaintiff by deed, executed June 9, but remained in the occupation of them till August 25, 1870 ; and the question was, whether, by agreement of the parties, he was to pay rent or not during that time. The deed contained no reservations, and was in the ordinary form of warranty deeds.

COVENANT BROKEN, by James B. Spaulding against Ann Abbot, administratrix of James W. Abbot.

<p>Bill in equity, to set aside the award of John W. Barney, Benjamin F. Hunking, and Edward R. Kent, arbitrators agreed upon by these parties to determine concerning the claims of each against the other for damages sustained by each in an affray and assault, May 18, 1868.</p> <p>The bill alleges that “ the arbitrators were biased and committed in. favor of the defendant and his case, and prejudiced and hostile to the plaintiff and his case, and were partial and interested in behalf of said defendant, and unfit men to serve as arbitrators between the parties touching the matters aforesaid, * * all which the defendant well knew, but concealed his knowledge ; * * that said arbitrators did knowingly and fraudulently enter upon said trust, with the knowledge and connivance of the defendant, intending to injure and defraud the plaintiff; * * that the award is exorbitant, excessive, fraudulent, and unwarrantable.”</p> <p>The answer is a specific denial of these charges, to which there is' a general replication.</p> <p>The cause was tried before Foster, J., at the April term, 1874, of the supreme judicial court.</p> <p>Under the direction of the court, the following issues were framed and submitted to the jury :</p> <p>I. Were the said arbitrators [or either of them] biased or committed in favor of the said George Hilliard and his cause ?</p> <p>II. Were the said arbitrators [or either of them] prejudiced or hostile to the said Alexander M. Beattie and his cause.</p> <p>III. Were the said arbitrators [or either of them] partial to the defendant and his cause, by reason of any interest of the said arbitrators, or either of them, in the result of said arbitration ?</p> <p>IY. Was the said award exorbitant or excessive?</p> <p>Y. Was the said award fraudulent?</p> <p>In the summing up by the court, the presiding judge said, — “ It is no cause for setting aside an award, that a person, finally agreed upon as an arbitrator, has at some time formed and expressed an opinion concerning the case, if he was impartial at the time of the hearing. In a case naturally or inevitably creating great excitement, everybody talks about it, hears about it, reads about it, and gets an impression about it. First reports are generally exaggerated. Usually one side is heard first. At last it turns out that the facts are not so bad as reported. The other side is heard, opinions become modified, changed, reversed. The question is, whether an arbitrator, at the time of his official and judicial action, is impartial, and free from prejudice or bias. Strict impartiality is required. A person who accepts the office of an arbitrator should approach his duty with clean hands and a pure heart. If he has heard the case talked about, and if he has formed an opinion, he ought not to sit as an arbitrator unless he feels that he can divest and has divested himself of all prejudice or bias. If he does not fulfil these conditions it is misconduct on his part, and if it is serious, it will avail to set aside the award. During the progress of an arbitration, it would be very improper, and strong evidence of corruption and misconduct, for an arbitrator to talk with a party, or his friends, or anybody else, about the merits of the cause. It is better, indeed, that an arbitrator, during the progress of an arbitration, should not even talk with either of the parties about anything (though an arbitrator might doubtless very innocently do this) ; and the fact that an arbitrator is seen talking with a party to the cause is evidence of fraud, but, taken alone, would not probably have great weight. If an arbitrator at the time of the hearing has any pecuniary interest in the result, this fact is conclusive evidence of such misconduct as amounts to fraud. The pecuniary relations of a party to an arbitrator may be examined, and the fact that a party, in whose favor the award is, is indebted to the arbitrator, is evidence on the question of fraud. It by no means follows that an arbitrator is fraudulent simply because he is a creditor of the party prevailing. The weight of the evidence on this point may depend upon many circumstances, — the amount of indebtedness, the solvency or otherwise of the debtor, the extent and value of the credit- or’s security, &c. If the debt is small, or abundantly secured, evidence of fraud or of interest in the result would be slight. If the arbitrator in fact has an interest in the award, that is, a pledge of it, before or after the award is made, that fact is evidence of gross partiality, fraud, and corruption.” To these instructions the plaintiff excepted.</p> <p>With reference to the first and second issues presented to the jury, the court instructed them that “the burden of proof was upon the plaintiff, to make out, by a fair balance of evidence, that the arbitrators, or one of them, at the time of the hearing, were biased or committed in favor of the defendant and his cause, or were prejudiced or hostile to the plaintiff and his cause; ” to which instructions the plaintiff excepted.</p> <p>The plaintiff’s counsel requested the court to give the following instruction : “ If the arbitrators had been prejudiced and biased in favor of the defendant and against the plaintiff, and had so expressed themselves, the presumption is that they continued so to the time of the arbitration; and the burden of proof is upon the defendant in that event to show that the arbitrators had become impartial.” The court refused to give the instruction, and the plaintiff’s counsel excepted.</p> <p>No exceptions were taken to the instructions of the court, which related to the third issue. The jury returned a negative answer to each of said issues. The plaintiff’s counsel seasonably moved that the verdict be set aside as being against the evidence-, and also because of tlie misconduct of certain jurors during the trial, and because certain jurors were partial and prejudiced against said Beattie, and bad formed and expressed an opinion on the merits of the cause, in Hilliard’s favor, before the trial began.</p> <p>Certain exceptions were taken by the plaintiff to the rulings of the judge upon questions raised upon the evidence of Edward Savage, Edward R. Kent, Dr. Barney, Alexander M. Beattie, and the deposition of Leander Davis.</p> <p>These exceptions were reserved.</p> <p>Alexander M. Beattie, the plaintiff, testified that just before the sitting of the November term of court, in 1868, “ I came from Montpelier, Yt., to Lancaster, N. H. Mr. Wallace W. Lindsey came to me-, at Lancaster, and made a proposition for a reference of the case between me and the defendant. I said I was willing if we could agree upon fair and impartial men, and proposed the names of Judge Poland and Harry Hibbard. Lindsey went and saw Hilliard, and returned saying that Hilliard didn’t know those men, and would not agree to them, but that he proposed to leave our matters out to Dr. J. W. Barney, B. F. Hunk-ing, and Edward R. Kent, of Lancaster. I said I rather have somebody out of Lancaster; but, upon Mr. Lindsey assuring me that they were fair and impartial men, I agreed to them, and signed the papers. I had no knowledge or belief that these men were biased or prejudiced against me; did not know that they had taken any part or interest in the matter; supposed that they were fair and impartial men, and heard nothing to the contrary before the arbitration. I had no particular or intimate acquaintance with Lancaster men; had speaking acquaintance with Barney and Kent. Had lived in Lancaster only one week before the affray, and then lived two miles from the village. The heating was had in the town hall in Lancaster, beginning December 14th, 1868. At an intermission during the trial before the arbitrators, I noticed Edward R. Kent sitting between the defendant and his brother, Henry S. Hilliard, on one of the benches in the north end of the town hall. None but these three were together, and they were talking and laughing, I found them in this situation when I went into the hall after dinner.</p> <p>In regard to the arbitrator Kent, the plaintiff called (1) Charles E. Benton, who testified as follows: “ Know E. R. Kent. Had talk with him a few days after the affray in Kent’s store. He gave me an account of it; said plaintiff was to blame. He appeared to be earnest and decided, and said that the plaintiff was wholly in the wrong and defendant in the right; that defendant was justified in doing as much as he did after plaintiff became senseless — in kicking him after he was down — as plaintiff was the aggressor; that defendant was justified in all he did. This talk with Kent was within a few days after the affray. My wife was present. Plaintiff had not been removed to his home in Brunswick, Yt, Kent said he had been to see defendant, and had talked with him about the matter. Think he said he had talked with him about the affray.”</p> <p>(2) Deposition of Mrs. C. E. Benton : “ In Ként’s store soon after the affray. I beard E. R. Kent tell my husband that he blamed Beattie in regard to it. He said that Hilliard would have, been justified if he had killed Beattie. Kent appeared excited and interested. He did not say that Hilliard would have been justified in killing Beattie if what he had heard was true.”</p> <p>(3) George M. Stevens testified that “In the fall, of 1863, the latter part of November, ábout Thanksgiving time, E. R. Kent asked me into his counting-room, and said that the case between these parties was to be arbitrated; that Dr. Barney, B. F. Hunking, and himself had been selected as arbitrators; that Hunking could not attend, and they wanted some one in his place, and had talked óf me. I told him I didn’t understand such matters, and wasn’t a suitable person to act in that capacity. Kent said he thóught I was; that it was an easy matter to decide; that every one knew that plaintiff was a quarrelsome, ugly fellow, and that the defendant was a quiet, peaceable man ; that the affray was a great outrage on the part of the plaintiff, and he ought to pay well for it.”</p> <p>In regard to the arbitrator, Dr. Barney, the plaintiff, called (1) Mrs. Ellen Fling; who testified as follovvs: “ Lived at the American house, in Lancaster, N. H., in May, 1868. Saw Dr. Bárnoy in the kitchen same evening after affray; he had been dressing defendant’s wound; had his iiistfuménts with him; he came into kitchen to wash them. He said Hilliard would have been justified if he had killed Beattie; seemed decided in his feelings about the matter.”</p> <p>(2) Freedom D. Beede testified : “ I was one of the Lancaster police in Mdy, 1868; was at hotel after affray was ended; went to both Hilliard’s and Beattie’s rooms; saw. Dr. Barney there dressing Hill-iard’s wound. I remarked to him that Beáttie was badly hurt. The doctor seemed excited, and replied, — ‘ Not so bad as he ought to have been;’ that1 Hilliard ought to have killed Beattie,’ Had a conversation with Dr. Barney and Wallace Lindsey, in the spring after the award, at the latter’s farm oii the river. Barney came along; Lindsey took out a stallion that had belonged to Hilliard, and which liad been pledged to Lindsey as security for a debt Hilliard owed him. Dr. Barney said, — ‘ I advisied Hilliard to take the $1,000 that Thomas Beattie offered him to settle the award, and then lie could have paid us [Lindsey and Barney] what he owes us.’ Lindsey said, — ‘ I advised Hilliard the same.’ At the time of the award the defeiidánt was not considered worth much; doii’t know who defendant owed except by hearsay; Dr. Barney told me Hilliard’s horses were mortgaged to him.”</p> <p>(3) Bracket G. Corsér testified that “ August 6,1868,1 had talk with Dr. B., at Lancaster house, about affray; asked him which lie-considered most to blame; he said he considered Capt. Beattie most to-blame; that he was the man that picked the quarrel; he said that Capt. B. ought to be made to pay for injuring Hilliard; that he had committed a great outrage upon Hilliard, and no doubt he would have to pay for it. He seemed to be so much prejudiced against Beattie that I made no further inquiries of him about the matter. Some time after the arbitration I saw Dr. B. at St. Johnsbury; had heard the amount of the award, and understood Dr. B. was one of the arbitrators. I asked him if they did not make Beattie pay pretty heavily; he said ‘We intended to make him pay well for it, and I guess it is all right that he should.’”</p> <p>(4) Frank Smith testified that soon after seeing an account of the affray between the parties in the newspapers, in May or June, 1868, “ Dr. Barney and William Burns, Esq., called on me in Boston, and, upon my inquiry, the doctor gave me a description of the affray, and I think he said Beattie was not hurt as bad as he ought to have been. I did not understand that Dr. B. saw the affray. He told me about attending upon Hilliard, and described his injury.”</p> <p>(5) Edward Savage, telegraphic operator at Lancaster, testified, — “I sent on the wires to Concord an account of the affray, next morning after it occurred, to correspondent of Boston Journal; saw it afterwards in the Journal. I wrote the account sent at the dictation of Dr. Barney. The excitement here was very great at that time. By order of the telegraph company, I keep all original messages three years, and then send them to New York. I suppose I sent this message to New York, because it was my custom to send them after the lapse of three years. I have not got what I wrote down at the doctor’s dictation.”</p> <p>The plaintiff offered to show by parol the contents of the message dictated by Dr. Barney, giving an account of the affray, and the contents of the same as printed in the Boston Journal (a copy whereof is annexed and marked) ; but the same upon objection by the defendant was ruled out. The plaintiff excepted. The plaintiff further offered to show that pursuant to a general rule or regulation of the telegraph company, as contained in the “ book of rules” or in tbe-“ journal of the telegraph,” published by the telegraph company, which are furnished to every operator, all dispatches kept three years and then sent to New York, as stated by Mr. Savage, are, after being kept there one year, destroyed. Upon the defendant’s objection, the court rejected the evidence offered, and the plaintiff excepted. Upon cross-examination, Mr. Savage stated, — “ I think it was Dr. Barney who dictated my dispatch ; am pretty sure of it, but not certain.”</p> <p>(6) Deposition of Leander Davis. Subject to the plaintiff’s exception, the defendant’s counsel were allowed to ask one of the arbitrators the following question: “How did the balance of the evidence strike your mind at the hearing before the arbitrators; and what was your idea of the evidence offered before the arbitrators as to which party was the aggressor; and what did it all tend to show ? ”</p> <p>Ans. “ The evidence all went to show that the plaintiff was the aggressor, except the testimony of Beattie ; the testimony of Hilliard and four witnesses established that Beattie was the aggressor. We' thought that defendant was wholly justified, and acted in self-defence, •on the ground that Beattie was striking at him.”</p> <p>The defendant’s counsel asked a witness — one of the arbitrators— the following question, to which the plaintiff objected. The court ruled that the question and .answer were competent evidence for the jury to consider; exception by the plaintiff. “ Upon hearing the whole evidence before the arbitrators, who appeared to be the aggressor, and who did you think was most to blame at the time when the affray took place ? ”</p> <p>Ans. “ After hearing the whole evidence, we thought Beattie was the aggressor, and most to blame, and made our award with reference to it.”</p> <p>The deposition of Davis was not furnished with the case. The affidavits of sundry witnesses, in regard to the misconduct of the jurymen, were laid before the court.</p>

Writ of error, brought by John Collins and Winthrop Collins against Frank P. Walker, to reverse a judgment recovered by the defendant in error against the plaintiffs in error at the February term, 1872, of the supreme court for the northern district of the county of Coos.

Writ op entry on mortgage. Plea, general issue and brief statement. The brief statement in substance alleged that the mortgagor’s title was by virtue of a conditional deed, which deed was mentioned and referred to in the mortgage declared on, which last contained full covenants of warranty.

This action was entered in the circuit court for the southern district of this county at the November term, 1874. At the same term, the defendant’s counsel filed a motion, supported by affidavit, to dismiss said action, for the reason that the writ was made and indorsed by George W. Silver as attorney; that said Silver is not an attorney of said court, nor of any court in this state, and is not a person authorized to use the processes of said court in said action.

Case, to recover damages for flowage caused by a dam at the outlet of Wickwass pond in Meredith. Trial before STANLEY, J. The defendants, and those under whom they claim, have been in possession and have maintained a dam at the outlet of said pond for more than twenty years before the commencement of this suit; but the plaintiff claimed that said dam had been raised within that time, and that damages were done to his property by such raising.

Trespass, for breaking and entering the plaintiff’s close, and taking and carrying away ten tons of bay, &c. Plea, the general issue, accompanied with a brief statement of license from the plaintiff. It appeared in evidence that the defendants, by permission of the plaintiff, ■occupied a barn of the plaintiff’s, situate upon the premises described in the writ, from December, 1870, to July, 1871, during which time the defendants kept in said barn several horses.

This case was referred by order of court at the October term, 1874. The referee did not make his report until the last day of the April term, 1875, and it was adverse to the defendant. The defendant had no notice of its contents until it was filed. Upon the coming in of the report, the defendant elected a trial by jury; said he was ready for trial, and offered to proceed. No juries were then in attendance, having been dismissed the day previous for the term.

Trespass quare clausum fregit, for entering the plaintiffs’ close in said Andover, December, 1872, and tearing down and destroying a school-house belonging to the district. There was also a count of trespass de bonis for tearing down, and carrying away, and converting to their own use said house.

<p>Insurance — Assignment of policy.</p> <p>Insurance is a contract of indemnity, appertaining to the person or party to the contract, rather than to the property subjected to the risk against which its owner is protected.</p> <p>The assent of the insurer to an assignment of a policy of insurance, upon a sale of the property named therein, constitutes a new and original promise to the assignee to indemnify him in like manner as the original insured was indemnified; and the exemption of the insurer from further liability to the vendor, and the premium already paid for insurance for a term not yet expired, are a good consideration for such promise, and constitute a new and valid contract between the insurer and the assignee.</p> <p>A mutual fire insurance company insured A, “ his heirs, executors, administrators, and assigns,” on his dwelling-house a certain sum, and “ on furniture and clothing therein” a certain other sum. During the life of the policy, A sold the real estate to B, and assigned the policy to him, with the consent of the insurers. A did not sell his furniture and clothing to B, but removed it. B took possession of the house, and placed , therein his own furniture and clothing, of equal character and value, and it was burned with the house. Held, B may recover of the insurers the amount of the original insurance upon the furniture and clothing of A.</p>

The court found and reported the following case: In August, 1770, a church was formed in the town of Oxford, which has continued to the present time, in connection with which church the parish or society have supported religious services and worship.

Assumpsit. The writ is dated October 19,1872, and the declaration is as follows: “ In a plea of the case for that the defendants, at Plymouth aforesaid, on the tenth day of August, 1869, in consideration that said deceased, then in full life, would grant and convey to them, by good and sufficient deed of conveyance, a certain tract of land situate in Warren in said county, promised and agreed to build and keep in repair a suitable fence on the westerly and southerly sides of…

Bill in equity, brought by William Heywood of Lancaster, in said county, as administrator of the goods and estate of Nathan Baldwin, late of Stratford in said county, to foreclose a mortgage upon certain lands in said Stratford, given by the defendant to the plaintiff’s intestate, August 21, 1862, to secure tlie payment of tlie defendant’s notes to the said Baldwin, amounting in all to $1,648. The defendant filed bis answer, and issue was joined upon a general replication.

Indictment for selling spirituous liquor to George E. Getchell, August 16,1874. Evidence was offered on behalf of the prosecution, tending to show that on Sunday, Aug. 16, 1874, in the forenoon, the respondent sold three drinks of spirituous liquor to George E. Getchell, for which he received thirty cents; also, that in the afternoon of the same day the wife of the respondent sold one pint of spirituous liquor to the same Getchell.

Appeal, by Leonard H. Flanders and several others, heirs-at-law and devisees of Benjamin George, from a decree of the judge of probate, granting license to the defendant, Jesse E. George, executor, to sell certain real estate of the deceased for the payment of debts.

Writ op entry, to recover a tract of land in East Kingston. Plea, nul disseizin.

This is a review of an action of trover, for the fraudulent conversion of twenty-two barrels of liquors, of the alleged value of $2,424.82, tried before Rand, J. The plaintiffs claim, among other things, that the defendant, when he bargained for these liquors, had no intention of paying for them.

The parties agreed to the following statement of facts: The plaintiff's are a school district in the town of Brentwood, duly authorized, and on the thirtieth day of September, A. D. 1874, and for a long time previous, owned the lot and school-house thereon described in the writ in said action, and occupied them for school purposes. The defendant at said time was the superintendent of the county farm for said county, which is located within the limits of said school district.

<p>IN Equity. Benjamin Hathaway, of Plymouth, Mass., complains against Elizabeth Noble and Jeremiah Noble, both of Portsmouth, Stark W. Lewis, of New York, Joshua Eldridge, of Chatham, Mass., James N. Tarleton, of Middletown, Conn., and William H. Y. Hackett and James W. Emery, both of Portsmouth, alleging that on July 12, 1848, Moses Noble, formerly of Portsmouth, but now deceased, was indebted to the plaintiff in the sum of $2,837.53, upon tvro promissory notes, due and payable in September, 1848, and -which have never been paid ; that said Moses Noble endorsed other notes for the benefit of one Locke, which Locke failed to pay; that said Moses Noble, as the plaintiff is informed and believes, on July 13, 1848, made several notes without consideration, and secured the same by mortgages upon all his real estate in Portsmouth, for the purpose of covering up his property, and for the purpose of deterring his creditors from attempting to collect their debts by reason of the large amount of pretended debts secured by mortgages upon his property, exceeding in amount the total value of his real estate; that in pursuance of said fraudulent design, said Moses Noble, July 12, 1848, made and delivered to said Stark W. Lewis two false notes, — one for $5,000, payable in six months from date to said Lewis or order, and one for §4,000, payable in nine months from date to said Lewis or order, — and secured the same by a mortgage on all his real estate in Portsmouth, and recorded said mortgage July 13, 1848; that afterwards, on July 12, 1848, in pursuance of the same fraudulent design, the said Moses Noble made and delivered to one Sally Noble, now deceased, a false note for $3,000, and secured the same by a mortgage of the same date, and recorded July 19, 1848; that after-wards, in pursuance of the same fraudulent design, said Moses Noble made and delivered to said Elizabeth Noble a false note for the sum of $1,000, and secured the same by a mortgage dated July 12,1848, and recorded July 19, 1848; and that said Moses included in said mortgages “ all his real estate of every kind and description,” and said real estate is not otherwise described in the bill. The bill further alleges, that said Moses Noble, at or about the same time, made false and fraudulent conveyances of all his personal property for the same fraudulent purpose, including shipping and their lading of various kinds, of the value of many thousands of dollars, of which said Lewis took possession; that said Lewis and said Eldridge caused said vessels to be reenrolled in the records of the custom-house in the name of said Lewis, without right or change of title; that said Lewis, after holding said titles a few months, ceased to do so, and the same were reenrolled in the name of said Tarleton, and continued enrolled in his name, although said Moses Noble continued to have the use, income, and profits thereof as he had done before said enrollment; and that said Lewis and Tarleton accounted for the avails thereof with said Moses Noble.</p> <p>The bill then charges, that said Lewis, Eldridge, Tarleton, Elizabeth Noble, and Jeremiah Noble aided and assisted said Moses Noble in covering up his property from time to time, so that his creditors were unable to reach it, and that they severally took more or less of the property and of its avails for said fraudulent purpose, and permitted the avails thereof to be used and appropriated by said Moses in fraud of his creditors, and of the rights of his assignees as trustees of his creditors. And the plaintiff charges, that they, by their fraudulent conduct, “ have made themselves liable for all the property which the said Moses has so taken, which should have been paid over to his assignees ; and that said defendants are liable to account for the same, as the plaintiff has by their acts been kept from securing his debt, which he could have done if the said Moses had not been aided and assisted by other parties fraudulently as aforesaid.”</p> <p>The bill further alleges, that on July 21, 1848, said Moses Noble assigned to the defendants Hackett and Emery, for the benefit of his creditors, all his property, real and personal, “ in order to cut off all suits and attachments which otherwise might have been made thereon, and to cut off all attempts by creditors to reach the same except through said assignees;” and that said assignment was made “ so that he might be in the hands of his chosen friends, and all creditors would be helpless as against said mortgages and assignment.”</p> <p>The plaintiff further charges, that at the time said mortgages and assignment were executed, said Moses was tenant in common with said Elizabeth Noble, Jeremiah Noble, Sally Noble, now deceased, “ and others,” of the real estate purporting to be covered by said mortgages, and that the possession of the said “Elizabeth, Jeremiah, Sally, and als,” could not be and has not been adverse to the other tenants in common; that by the assignment to said Emery and Hackett, “ the creditors, through said assignees, became possessed, as tenants in common with said Sally and Elizabeth, and the other tenants in common, of said real estate; and that the rights of the creditors in said estate, through said assignees, were and still are perfect, and the creditors have a right to redeem said mortgages, through said' assignees, and make defence thereto.”</p> <p>The plaintiff further charges, that, said Elizabeth and Jeremiah have received and taken all the rents and profits of the real estate so mortgaged to them, in fraud of the creditors of said Moses and his assignees, and that the amount so received and appropriated is more than would be due them if their mortgages were for a good consideration ; that they are liable tó account to said assignees for a large amount of rents and profits due said assignees as such ; and that the mortgages to said Lewis have been settled and given up.</p> <p>The plaintiff further charges, that he filed his claim with said assignees, and afterwards, at the November term, 1855, of the court of common pleas for Rockingham county, recovered judgment thereat against said Moses for $8,365.61 damages, and $18.20 costs; that sai d judgment is in full force ; that he filed with said Hackett, one of sa' fi assignees, the execution which issued thereon, “to hold the sanie against any estate of said Moses he might ever be able as suplí assignee to discover in any way, and said execution has ever since remained in said Hackett’s hands ” for that purpose; “ that said assignees, having been deceived by the fraudulent acts aforesaid, the other defendant informed the plaintiff there was no property which he could reach, and he, trusting in their accounts, never caused any examination to be made until within a short time, to wit, within two months now last past, when he employed his present solicitors.”</p> <p>The plaintiff further charges, that the said Elizabeth Noble, for the purpose of carrying out said fraudulent design, brought a suit at the February term, 1849, of the court of common pleas, on her said mortgage, to recover possession of said mortgaged premises; that said Moses, in pursuance with said fraudulent design, suffered default, and that she, at said term, recovered judgment against said Moses; that neither said assignees or creditors, nor any one who had any interest in said land, was made defendant, and no notice was in any way given to the creditors or persons interested in the title, and therefore that said suit and judgment in no way bars the creditors or other persons interested ; that neither the plaintiff nor said Hackett heard or knew thereof “ until within one month now last past, when the plaintiff learned the same for the first time by application to the clerk of said court through his solicitors in this case ; ” and that the plaintiff never before had any knowledge or information that there had been any attempt to foreclose the mortgage of said Elizabeth.</p> <p>The plaintiff further charges, that the writ of possession which issued upon said judgment was never returned into court; that no possession was ever taken under the same; and that the said Elizabeth, in fact, never had any possession under which said mortgage could be foreclosed.</p> <p>The plaintiff claims that, as a creditor of said Moses, he has the right to redeem said mortgaged premises; that the possession of said Elizabeth Noble has not been adverse, but, as tenant in common, taking all the rents and profits; that the plaintiff’s debt is the only claim against the said Moses which has been kept alive; “ and that he alone is entitled to the rights of said Moses, which passed to said assignees, so far as his debt is concerned.”</p> <p>The bill prays that the defendants may answer, and for an account of the rents and profits of the real estate received; that the plaintiff may “ be permitted to hold said estate still remaining, and the avails, rents, profits, and income thereof, as against said defendant, until sufficient thereof has been taken to pay the plaintiff’s debt and interest and costs; and that, if any portion of said mortgages or mortgage debt were honest and due, the said defendant be ordered and decreed to account for the rents and profits received thereon, and that the plaintiff be permitted to redeem said estate from said mortgage; and for such other and further relief as may be just.”</p> <p>There are other averments in the bill not necessary to be mentioned, and others not material in any view of the case.</p> <p>Elizabeth Noble demurred to the bill, assigning as causes of demurrer: (1) The legal representatives of Moses Noble, deceased, are not made parties to the bill; (2) the legal representatives of Sally Noble, deceased, are not made parties to the bill; (8) the other creditors of Moses Noble are not made parties to the bill; (4) the bill is multifarious for a misjoinder, both of parties and subjects; (5) the plaintiff discloses no sufficient title to enable him to maintain his bill; (6) the bill does not sufficiently describe the property claimed nor the relief prayed for; (7) by the plaintiff’s own showing, the mortgage to this defendant described in the bill was long ago foreclosed; (8) by his own showing, the plaintiff has slept upon 1ns rights nearly twenty-six years, and is now barred in law and equity to ask the relief he prays for; (9) because he had a plain and adequate remedy at law. .</p> <p>The questions raised by the demurrer were transferred from the circuit court by Rand, J.</p>

<p>Practice — Rehearing—New trial — Former finding not evidence.</p> <p>fhe facts of a case had been found by a judge at trial term, and the case, having been sent by the whole court again to the trial term for a rehearing, was heard, after the change in the judiciary, in the circuit court. The circuit judge ruled, that the facts found at the former hearing were to be assumed as true in the first instance, and that the burden was on the defendants to show a different state of facts. Held, that this was not such a rehearing as was contemplated by the order.</p>

Bill in equity. The bill states that McCallion held the clrarcli and parsonage in trust for the purpose of a place of public worship for all the Catholic… Held: “ that the persons usually attending worship in the meeting-house constituted an unincorporated religious society.” The officers could not deed away without the consent of the church, by the force of the statute; then, no deed or authority could be conveyed by statute or common law, except by vote of the society.

Bill in equity, against tlie Boston & Maine Railroad and its directors, and against the Eastern Railroad and its directors and managers, in which the plaintiffs allege that they are stockholders in said Boston & Maine Railroad; that said Boston & Maine Railroad was chartered by tbe legislature of said state of New Hampshire, and, by the action of the legislatures of said Massachusetts, New Hampshire, and Maine, forms and constitutes a joint and continuous line of route…

This action was sent to a referee, who found the Portsmouth & Dover Railroad guilty, and assessed damages in the sum of $25, and found Jones not guilty. By request of the plaintiff, the referee stated specifically his rulings upon all question of law, and all matters of fact found proved, which are hereto annexed and made part of this case.

Case, to recover the value of a coat and vest under a count, which alleged that the defendant was a common carrier of goods and merchandise from Exeter to Amesbury and Newburyport; and that, on October 27,1870, the plaintiff was possessed of a certain coat and vest, and by his agent delivered the same to the defendant to carry from Exeter to Amesbury and deliver to one Charles M. Abell, provided that Abell should, upon the delivery of said coat and vest to him, deliver to…

Trespass on the case, for killing a pair of oxen belonging to the plaintiff, valued at $250. Writ dated July 26, 1874. Plea, the general issue.

This is an action for detinue to recover a wagon ; and the declaration isasfollows: “* * In an action of detinue, for that whereas the plaintiffs heretofore, to wit, on the eighteenth day of December, A. D. 1874, at Exeter aforesaid, were possessed of a certain one-horse wagon, of the value of one hundred and thirty-five dollars, which thereafterwards, to wit, on the same day, came into the hands and possession of the defendant, by finding, yet the defendant, well knowing…

In this case, the claim of the plaintiffs was for unliquidated damages. The defendants moved for a reference. Held: that the defendants had a legal right to a reference under the reference law of 1874, unless it was made to appear that it would be inexpedient to make such reference.

Case, to recover for injuries occasioned, as alleged, by obstructions in a highway in said town. At the September term, 1874, of said court, this action was by order of court referred to a referee, under the statute of 1874. He gave notice to the parties of a hearing, and they appeared before him, — the plaintiff by himself and counsel, and the defendants by their selectmen and counsel.

<p>Teespass, de honis, to recover the value of a horse and wagon. Tried before Stanley, J. Plea, the general issue, with a brief statement justifying under an attachment. The evidence tended to show, that, prior to March 1, the horse and wagon in question wore owned by one McDuffie; that he had been engaged in the lumbering business at Jefferson, in this state, where the plaintiff then resided, and that he and his men had- boarded with the plaintiff; that, on said March 4, there was a looking-over between her and McDuffie, and that it was then agreed by and between them that he should let the plaintiff have said horse and wagon on account of the amount then due to her, and that she should allow him one hundred and eighty dollars for them and a harness, on account, and he at that time gave her a bill of sale of them; and on the next day, they were taken from the barn occupied by McDuffie, and where they had been previously kept, and put into the plaintiff’s barn, and they were kept there after that. At the time of the sale by McDuffie to the plaintiff, he was boarding with her, and continued to board with her while he remained in Jefferson, he being then about closing up his business; and it was then (at the time of the sale) agreed between the plaintiff and McDuffie that he should have the right to use said horse, wagon, and harness, in about his business, and that in consideration therefor lie should pay the taxes on the same. In accordance with this arrangement, said horse was taxed to McDuffie, and he did use the horse, wagon, and harness, as he had occasion, three or four times, to go to Lancaster; and McDuffie testified, on cross-examination, that part of the consideration of the trade was the right he was to have to use the horse, wagon, and harness; that it was part of the trade. There was other evidence introduced by the defendant, tending to show that the plaintiff, after the alleged purchase, denied any ownership in the property of McDuffie, and the plaintiff introduced evidence tending to contradict this evidence of the defendant. The defendant requested the court to instruct the jury, that if, at the time of and as a part of the contract of sale, it was agreed and understood by the parties that McDuffie was to still have and retain the right to use the horse and wagon and harness, that would be a secret trust, and the sale was void; that, as the plaintiff admits, part of the consideration of the sale was, that McDuffie was to retain a right to use the property so long as he might remain in Jefferson, and for an indefinite time, the sale was void, and the defendant had the right to take the same as McDuffie’s property; that if McDuffie was to have any right under the bargain with the plaintiff to use or work the horse as part of the consideration or price of the property, the sale was void, and the property remained McDuffie’s, and the defendant had the right to attach it. The court declined to give the instructions as requested, hut did instruct the jury, among other things, that, if there was any understanding between the plaintiff and McDuffie that the property should be treated as sold, when in fact the arrangement was, that the property was to be McDuffie’s, and to be used as he chose to use it and he had used it before, the sale was void ; that it does not follow, as a matter of course, because be was to have the use of said horse, wagon, and harness, and that he was to pay taxes thereon, that there was a secret trust; but these were facts to be considered by the jury as bearing on that question, and were to be considered by them in connection with all the evidence in the case.</p> <p>McDuffie testified that he had owned the horse in question about two years before the attachment; and, subject to the defendant’s exception, the plaintiff was allowed to ask him if he had ever discovered any unsoundness or string-halt, to which he replied he never had. It did not appear that McDuffie had any particular skill in the care or management of horses. There was no substantial difference in the statement of the contract as made by the plaintiff, from that made by McDuffie.</p> <p>The jury having returned a verdict for the plaintiff, the defendant moves to set aside the same for supposed error in the foregoing rulings and instructions.</p> <p>The questions of law arising on the foregoing case were transferred to the superior court for determination.</p>

Assumpsit, to recover for making seven cases of shoes. Tried before STANLEY, J., and a jury. The referee, to whom the case was referred under the statute, made a report in favor of the plaintiff, the defendant not appearing. The plaintiff introduced the report of the referee, and rested his case.

In this case, two reports of the board of county commissioners were pending at the February term, 1875, of the circuit court. One was a petition by the plaintiffs against an order of the town of Lee, requiring them to build a bridge over their railroad at a crossing of the highway, and was to the effect that the bridge was necessary for the public safety and accommodation.

TRESPASS, for assault and battery. The declaration is as follows: “ In a plea of trespass for that the defendant, at Somersworth, on the twentieth day of June, 1873, with force and arms, made an assault upon the plaintiff, and beat, bruised, and ill-treated him, and violently threw Mm upon the ground, and cruelly bruised and wounded him there lying by striking him with his fists and clubs, and, kicking him, broke sundry bones and dislocated one of his shoulders, choked him,…

Case, to recover for injuries to the plaintiff’s horse. The action was tried*by Stanley, J., who found the following facts: The writ is dated July 7, 1874. Plea, the general issue. Held: as a reasonable man, to have apprehended that some one might intermeddle with it. In that case there was no apparent necessity for the interference of the boys: the iron was not hungry, nor thirsty, although it may have been dry.

ThoveR, against the defendant, to recover for the conversion of the goods and fixtures in a saloon, and for a billiard table. Held: it being understood that, in the event of the trustee being charged, tlie proceeds should be justly apportioned between the creditors of said Whipple’s estate, and that if tlie trustee should be discharged no other action should be brought against him; and the court ruled that the then plaintiffs might be permitted to prosecute said…

This action was, at the September term, 1874, committed to a referee, who, at this term, reported the following facts : This is an action of assumpsit upon a promissory note, of which, the… Held: in an action by an innocent holder, to be invalid through fraud.” Puffer v. Smith, 57 Ill. 527. This decision is founded upon Taylor v. Atlcinson, 54 Ill. 196, decided June term, 1870. “The delivery of a promissory note by the maker is necessary to a valid inception of the contract.

Trover, for certain bonds issued by the state, bearing date January 1,1872, alleged to have been converted September 3,1873.

<p> Service of writ upon principal defendant when no service is made on trustee. </p> <p>It is no ground for reversing a judgment on a writ of error, that the suit was commenced by trustee process, and that the writ was served upon the defendant by copy, no service having been made on the trustee.</p>

Assumpsit, to recover the contents of a promissory note, made by the defendant, payable to John C. Thompson, or order, on the first day of December, 1873, and by said Thompson indorsed to the plaintiff. Tried before STANLEY, J., and a jury. The defence set up was, that the note was without consideration, and obtained by Thompson by fraud; that it was not purchased by the plaintiff in good faith, nor indorsed until after it became due.

Replevin, for a horse, wagon, and harness. Plea, the general issue, with a brief statement.

Case, to recover the sum of forty dollars and interest. The declaration is as follows: “ In a plea of trespass on the case,for that whereas the plaintiff and defendant had, at said Chesterfield, heretofore, to wit, on the twenty-fifth day of May, 1874, exchanged horses, and in said exchange the plaintiff had paid to the defendant a large sum of money, to wit, $75, and delivered to him his dark bay mare in exchange for the horse of the defendant, the defendant…