Volume 56 — New Hampshire Reports

From Merrimack Circuit Court. Assumpsit, to recover the amount of two promissory notes, each dated July 15,1872, and payable to O. J. Stickles & Co., or bearer, one for $66.74, six months from date with use, and the other for $250, one year from date with use, and each signed by the defendant.

From Merrimack Circuit Court. Case, to recover for an injury to the plaintiff’s horse, occasioned by a defect in a highway^ which, it was admitted at the trial, Sanbornton was bound to keep in repair.

<p>From Merrimack Circuit Court.</p> <p>Petition of Henry Knox and eighteen others for a new highway in the town of Epsom. The petition was filed March 25,1875, and an order of notice issued by the clerk of the court and annexed to said petition, requiring service thereof by “causing a certified copy of said petition and of this order thereon to be given to or left at the last and usual place of abode of the town-clerk and one of the selectmen of said town, each twenty-eight days at least before said April term of said court.” It was addressed to the circuit court, and entered at the present term, which commenced on the first Tuesday of the month, as fixed by law. On the back of the petition, under date of March 26,1875, is the following writing:</p> <p>“ The town of Epsom hereby acknowledges due and legal service of the within petition and order of notice thereon on said town, and waives all objection and exception to the want of formal legal service thereof upon said town, a copy thereof duly certified having been given to the selectmen, which is accepted as and for legal service on the town-clerk and one of the selectmen, made more than twenty-eight days before the term of court to which the same is returnable.</p> <p>[Signed] The town of Epsom, by</p> <p>SAMUEL MARTIN, ) Selectmen ANDREW S. EVANS, V of DAVID M. KNOWLES,j Eptom”</p> <p>Upon the clerk’s docket appears the entry of the name of counsel for the petitioners and “ selectmen for the town of Epsom,” made by the clerk at the suggestion of counsel for the petitioners, he understanding that such entry would be agreeable to the selectmen.</p> <p>Upon the call of the docket, and upon motion of the petitioners’ counsel (no one opposing said motion), it was ordered that the petition be referred to the county commissioners. Subsequently, a week or two later, Messrs. Tappan & Albin appeared, and by leave of court entered their names upon the docket, as appearing specially for certain remonstrants, and for the “ Cemetery Association.” They were permitted to file in court the remonstrance of J. B. Tennant and one hundred and forty-eight others, “ inhabitants and legal voters of the town of Epsom,” representing that “ on the ninth of March, 1875, at a legal meeting of the legal voters in said Epsom, an article in the warrant warning said meeting reads as follows, to wit,— ‘Art. 9tli. To see what action the town will take upon the petition of William Goss and others for a new highway, beginning,’ ” &c. [describing the same route prayed for in the petition in this case]. “ On motion to instruct the selectmen to lay out said highway, the motion was lost, thirty-seven having voted in favor and seventy-eight having voted against it. And whereas your petitioners believe there is no need of a public highway, as set forth in the petition asking for the same, and that said highway (should the same be laid out) will not be for the accommodation to the public, but will be a public nuisance, inasmuch as it will take a portion of the burving-yard, to the detriment of said yard and the public.” Wherefore they pray this court not to lay out said highway.</p> <p>Messrs. Tappan & Albin then moved that the petition be dismissed. The motion was denied, and the said Tappan & Albin excepted. The questions of law thus raised were thereupon transferred to this court for determination by Foster, G. J.</p>

From Merrimack Circuit Court. Assumpsit. George T. Annis sued as sole plaintiff. The declaration contained a count for goods, wares, and merchandise, bargained and sold by the plaintiff to the defendant, etc. Plea, the general issue.

From Merrimack Circuit Court. Assumpsit. The defendant craved oyer of the plaintiff’s writ and declaration, and of the officer’s return upon the writ, and of the summons attached to said writ; and the same being enrolled, it appeared that the writ was dated May 25, 1874, and was returnable to the supreme judicial court, to be holden on the first Tuesday of October then next. It bore the teste of Jonathan Everett Sargent, then chief justice of said court.

From Merrimack Circuit Court.- Assumpsit upon the common money counts. This action was sent to a referee, who reported his conclusions of fact and law as follows: “Against the defendant’s objection, the plaintiff was allowed to put in evidence two writings, both alike, upon each of which he claimed to recover $40, with interest from its date.

From the Merrimack Probate Court. For the purpose of raising certain questions of law only, the following facts were agreed, viz., — This case is an appeal from the decree of the judge of probate of said county of Merrimack, proving and approving a certain paper as the last will of Francis Davis, late of Warner, in said county, deceased.

From Merrimack Circuit Court. Assumpsit, upon a contract of guaranty. Writ dated March 5,1874. The cause was sent to a referee, who made the following report: “ The action is brought to recover of the defendant, as guarantor, for goods sold his two sons, Fred C. and Charles IT. Putney.

From Merrimack Circuit Court. This action was sent by the court to a referee, who made report at the April term, 1875, as follows : “ The;,'referee, before named, being first duly sworn, certifies that he appointed a hearing in said action at the office of Sargent & Chase, in Concord,¡in said county, on January 2, 1875, at 10 o’clock in the forenoon, and notified the parties thereof by sending notices through the post-office, mailed on November 16,1874, at the Concord…

From Hillsborough Circuit Court. Petition for the abatement of tax.

From Hillsborough Circuit Court. Upon the filing of the report of the referee in this case the plaintiff moved for judgment, and the defendant objected and filed the following objections. An auditor’s commission in this case was issued to A. W. Sawyer. The parties afterwards, while the case tvas on trial out of court before the auditor, made an agreement to refer, as appears by paper “A” hereto annexed.

From Hillsborough Circuit Court. Assumpsit, by Samuel Upton against the city of Manchester, for fees as police justice for sis years prior to the date of the writ, in cases prosecuted by the city, in which city officers were complainants, and in which no costs were paid by the respondents.

From Hillsborough Circuit Court. Case. There was a demurrer to the declaration, and the questions arising thereon were transferred to this court by Rand, J. The declaration was as follows : “ In a plea of the case for that by chapter third of the Pamphlet Laws of this state,* passed June session of the legislature, A. D. 1870, being £ an act in amendment of chapter ninety-nine of the General Statutes, relating to the sale of spirituous liquors,5 it is, among other tilings,…

From Grafton Circuit Court. Writ of Entry, by William P. Hunt against George W. Haven and Jabez JB. Upham, administrators of Joseph Bell, for the recovery of the Ladd farm in Haverhill.* Writ dated Sept. 3, 1870. The plaintiff put in evidence. (1) Mortgage, James Woodward to Phineas Spaulding, dated January 4, 1850, to secure note of $2,000 to Spaulding of same date. (2) Assignment of said mortgage by P. Spaulding to the plaintiff and Horace Hunt, dated July 7, 1870.

From Grafton Circuit Court. In Equity. The bill is brought by Eliza H. Clark, of Enfield, in this comity, and Clara E. Matthews, of St. Johusbury, Yt., her daughter, against George W. Clark, husband and father of the plaintiffs, and Daniel Tilden of Lebanon, in this county. The plaintiffs allege, that on November 11,1854, the said George TV.

From Grafton Circuit Court. In Equity. The bill was as follows: William A. Rice of Bristol, in said county, in behalf of himself and others, creditors of the Merrimack Hosiery Company, who shall come in and contribute to the expenses of this suit, complains against the said Merrimack Hosiery Company, an association of individuals claiming to be a body corporate raud politic, and to have and possess certain corporate powers, under and by virtue of the laws of the state of…

From Grafton Circuit Court. Case. The writ is dated February 25,1874.

From Grafton Circuit Court. Libel, for the forfeiture of certain liquors, alleged to be kept for sale in violation of law. The liquors having been duly seized on legal process, John S. Tufts was allowed to appear as claimant. Upon investigation, the court found, as matter of fact, that the town of Plymouth were the complainants; and the entry “ Town of Plymouth, complainants ” was made upon the docket, subject to the claimant’s exception.

From Grafton Circuit Court. Assumpsit, by David L. Davis, surviving partner, against Orville Dyer and John Bradford, trustees of the Church Family of the United Society of Shakers at Enfield. The writ is dated August 21, 1871. It is agreed that the cause of action accrued between 1857 and 1860. With the general issue, the defendants file a brief statement. “ (1) The plaintiff’s cause of action did not accrue within 'six years before the commencement of this suit.

From Grafton Circuit Court. Bill in Equity, praying for an injunction to restrain the defendants from further prosecuting certain suits at law. The facts appear sufficiently in the opinion.

From Grafton Circuit Court. Assumpsit, for use and occupation. Plea, the general issue with a set-off'. The action was sent to a referee, who heard the parties, and made a report in favor of the plaintiff.

From Grafton Circuit Court. Foreign Attachment. The deposition of Lucius M. Howe was as follows: “ I, Lucius M. Howe, depose and say, that I am chairman of the board of selectmen of said town [Plymouth] ; that, at the time of the service of said writ on the town, Joseph Clark had an account against the town for personal services and costs paid out — mostly for his services — of $414.99; that at the same time he owed the town, for cash in his hands belonging to the town,…

From Grafton Circuit Court. Trespass, qu. cl.fr. The plaintiff moved to amend by filing a new count, as follows, viz., — “Also for that the defendants, on the thirteenth day of January, 1873, and on divers days and times, from said thirteenth day of January, 1873, to the date of the purchase of this writ, with force and arms broke and entered the plaintiff’s close, situated in said Bethlehem, bounded and described as follows : Beginning at the south-east' corner of lot 62,…

From Grafton Circuit Court. This is a motion to bring forward the action to save an attachment. The action was entered at the March term, 1874, and continued to September term, 1874, when it was entered on the clerk’s docket “ default, judgment; ” but no judgment was «ver entered up, and no execution was issued. There was an attachment of personal property on the writ, and a receipt was given for the same.

From Grafton Circuit Court. Assumpsit. The writ is dated September 8,1878.

From Grafton Circuit Court. Moses B. Sawyer, indicted in the circuit court for murder in Grafton county, at this term moved here that the venue in his case be changed to some other county, on the ground, as alleged by his counsel, that he could not have an impartial trial in Grafton county.

From Coos Circuit Court. Debt. The defendants filed a general demurrer to the following declaration in the plaintiffs’ writ, and the questions thereupon arising were transferred by Ladd, J. “ In a plea of debt for that the defendants, at said Whitefield, on the thirtieth day of April, A. D. 1874, before Alfred R. Evans, a justice of the peace in and for said county of Coos, by their recognizance, acknowledged themselves indebted to the state of New Hampshire in the sum of…

From Coos Circuit Court. • Appeal from an award of land damages by the railroad commissioners and selectmen of Northumberland. On motion of the defendants, and against the plaintiff’s objection, the cause was sent to a referee, under the provisions of the act of 1874. The questions of law and discretion thereupon arising were transferred to the superior court for determination by Cushing, C. J.

From Coos Circuit Court. Assumpsit. The plaintiff moved to refer. There was no reason why the case should not be referred, except that it had been once tried by a jury, and had been brought forward for review. The court, in the exercise of its discretion, decided that it was not inexpedient to refer the case for that reason ; and the question, whether or not that was a proper exercise of discretion under the reference law of 1874, was transferred to this court by Rand, J.

Froji Coos Circuit Court. The plaintiff is a citizen of New Hampshire. The defendants were citizens of Maine. The defendant, S. R. Bearce, is now dead, and his death has been suggested on the record. The cause was tried by jury at the November term, 1873, of the supreme judicial court for this county, resulting in a verdict for the plaintiff. That verdict was set aside by the whole court at the June term, 1874, and a new trial granted.

From Coos Circuit Court. Appeal from the laying out of a highway by the selectmen of Lancaster, and the award of land damages by them thereupon made to the plaintiff.

From Rockingham Circuit Court. In Equity. Arabella Rice, by her will dated May 18,1867, made bequests as follows: First. To each of her first cousins, paternal and maternal, $12,000. Second. To a first cousin of her father, $6,000. Third. To Eliza Rice, $6,000. Fourth. To her late father’s first cousin, Mrs. Edgecombe, and to her daughter, Sarah Edgecombe, $6,000 each. Fifth. To two persons described as her relatives, $6,000 each. Sixth. To Hon. Ichabod Goodwin, $6,000.

From Rockingham Circuit Court. The petitioner in this case represented that he was in possession as tenant for life of certain real estate, with the right to expend the income as he should deem proper ; that at his decease the said real and personal estate was, by the will under which he claimed, to descend to and be equally divided between his children, if he should have any; and in case he should die childless, then said real estate was to be held by the town of Danville…

From Strafford Circuit Court. These two actions were referred to an auditor. In the first the report had been made, and the plaintiff elected a trial by jury. In the second the report had been made, and returned to court, and recommitted to the auditor, who had not yet returned his report.

From; Strafford Circuit Court. Libel for Divorce filed in vacation. The libel was drawn up by a student, in the office of the plaintiff’s attorney, from minutes given by the plaintiff to her attorney.

Carroll County. Petition to the superior court for a writ of mandamus. The petitioner represents that on March 31, 1875, he was and still is an inhabitant, legal voter, and tax-payer in school district No. 19, in Wolfe-borough; that at a legal meeting of the voters of said district, held on.

Carroll County. Petition to the superior court for a writ of quo warranto.

From Merrimack Circuit Court. Assumpsit on guaranty. The guaranty was the same mentioned in March v. Putney, ante, 84. The report of the referee showed that the guaranty was executed by the defendant on the evening of September 8, and mailed to the plaintiff the next morning ; and the goods which were the subject-matter of the suit were delivered and charged September 8.

From Merrimack Circuit Court. Appeal, by William H. Hardy against Isaac D. Merrill, from the decree of the judge of probate approving and allowing, in solemn form, the will of Joseph Hardy, deceased. Said will was dated July^26, 1870. Issues had been made up at the law term, and sent to the circuit court for trial by jury. The issues were in common form.

<p>.Fraudulent sales — Retaining possession hy vendor.</p> <p>S, being indebted to C and D, sold to them certain cattle and hay for 890, who endorsed the amount upon a note held by them against S. The sale was made in the presence of a witness. The cattle and hay wore left in the possession of S to feed the hay to the cattle, also to his own cow at his own expense; and it was agreed that the manure made by the cattle should become the property of S. The creditors of S attached the cattle and hay as the property of S, and G and D replevied them. Upon the trial, these facts appearing, it was ruled that the sale ivas void as to creditors, and that the facts furnished no sufficient explanation of the retaining the possession of the property by S; and a verdict was ordered for the defendant. Held, that the ruling was correct.</p> <p>When the possession of chattels is retained by the vendor after an absolute sale, it is no sufficient explanation to show that the sale was made in the presence of a witness, where it was not attended with such publicity as would naturally give notoriety to the transaction, and -when there was no change in the possession or use of the chattels to indicate that any change in the ownership had taken place.</p>

From Sullivan Circuit Court. A petition under the “ act for the encouragement of manufactures,” Laws of 1868, ch. 20, having at a previous term been referred to a committee, the committee made the following report: “ That they are of opinion that the flowing or draining of said Allen Town’s land, described in his petition, to the depth and extent that the same may or can be flowed by the new dam, built by the defendants in September, 1872, atthe outlet of Ashuelot pond, so…

From Grafton Circuit Court. In Equity. Dor ranee B. Currier, of Hanover, in behalf of himself and all other stockholders in the Lebanon Slate Company who may come in and join in the prosecution of this suit, complains against said company and Elisha P. Liscomb, of Lebanon, Joseph W. Cleveland, formerly of Lebanon, and Adna Storrs, of Hanover, and says that he is the owner of one hundred shares of the stock of the company, being one tenth of the whole number of shares ; that…

From Cobs Circuit Court.- Debt upon a collector’s bond. Trial in the circuit court, and transferred by Ladd, J. The facts of the case sufficiently appear in the opinion by Foster, C. J., C. C. Dudley (witli -whom was Cr.

From Coos Circuit Court. In Equity. This is the same case reported 55 N. H. 104.

From Rockingham Circuit Court. Case for libel. Trial before Rand, J., and a jury, at tlie October term, 1874.

From Rockingham Circuit Court. Case, to recover damages sustained from a flow of water into the cellar of the plaintiff’s house from the defendants’ common sewer. Plea, the general issue.

From Rockingham Circuit Court. The following facts, having been reported by a referee, are, by agreement of the parties, submitted to the superior court for such judgment thereon as they may order: “ The action is assumpsit, commenced on March 7, 1874, for the support of Mrs. Maggie French and her three minor children, alleged to be paupers and to have their settlement in said town of Sandown.

From Rockingham Circuit Court. Trespass, qu. el.fr., for breaking and entering the plaintiff’s close, situate in Auburn, — marked B on the plan hereto annexed, — between July 1,1873, and August 14, 1873, and depasturing his ■ grass, and damaging his crops by his cattle and teams. Plea, the general issue, with a brief statement claiming a right of way by prescription and of necessity.

<p> Construction of grant. </p> <p>In a warranty deed of land was the following clause: “Also conveying the right to draw water from any and all the springs on said Clement’s [the grantor’s] land, easterly and above the aforesaid described premises, with the right to conduct the same by aqueduct to said premises, for all uses or purposes forever.”</p> <p>Meld, that the grantee was entitled to take all the water from the springs, provided the same was in good faith required for use on the granted premises.</p> <p>Meld, that the grantee was entitled to make such reasonable arrangements about the springs as were reasonably necessary to enable him to use all the water.</p>

From Strafford Circuit Court. Foreign attachment. Both suits — James Y. Demeritt and Daniel S. Ward v. Estes S? Trustees, and Q-eorge W. Woodman v. Hersey and Morse tf> Trustees — were duly served and entered at the circuit court, February term, 1875. In neither suit had any attempt been made to take or give the depositions of the trustees. At the return term the trustees in each case appeared. In the first one, the court ordered “ Deposition of trustees in sixty days.

Prom Strafford Circuit Court. Libel for divorce, on the ground of extreme cruelty. The cause was tried before Rand, J., who reported as follows : “ Only two assaults, made upon the libellant by the libellee, were proved ; and these were not of a very aggravated nature. But it was in proof that the libellee used very violent language towards the libellant, cursing her at times, and applying indecent epithets to her. This was especially the case during the last two years.

From Strafford Circuit Court. Replevin. The value of the property is alleged in the writ at $5,000. The bond is for $8,000. The defendants moved to quash the writ. The plaintiffs claimed, and offered to prove, that the value of the property replevied did not exceed $4,000, which the defendants denied.

From Strafford Probate Court. Appeal, by Ivory Young, devisee under the will of said David Young, from the decision of the commissioner of insolvency on the estate of the said David, allowing the claims of the appellees as wards of the said David, their former guardian, and other claims against said David in his private capacity.

From Belknap Circuit Court. Assumpsit, upon a policy of insurance, which bears date December 2, 1870. The more material portion of the policy is as follows: “ By this policy of insurance, the Hartford Eire Insurance Company, in consideration of the receipt of $18.75, do insure Messrs.

From Belknap Circuit Court. Petition for a new highway in New^Hampton. The questions arise upon the report of the commissioners. At the hearing before the commissioners, the town of New Hampton requested them to summon in the adjoining towns of Center Harbor in said county, and Ashland in Grafton county, on the ground that they would be benefited, and New Hampton burdened by the laying of the road.

From Belkkai? Circuit Court. Assumpsít. The case was referred to a referee, who reported that the action was brought to recover of Sanbornton for aid rendered by Gilmanton to one Ebenezer Chase for the support of John Chase, between December 10, 1874, and June 14, 1875, the expenditures amounting to $47. Notice of the expenditure was duly given to Sanbornton.

From Belknap Circuit Court. Writ oe entry, to recover possession of certain tracts of land in Gilford. Sarah Sanders is the wife of the said George W. Sanders, and is so described in the writ. The plaintiff claims to recover possession of the demanded premises by virtue of a mortgage executed by the said George W. Sanders and Sarah Sanders to one John P. Smith, dated March 1,1862, and August 17, 1868, assigned to the plaintiff. The said Sarah released her dower and homestead.

<p>From Belknap Circuit Court.</p> <p>This case was transferred on the special report of a referee.</p> <p>SPECIAL REPORT.</p> <p>Action in assumpsit on the defendant’s premium note for $15.75, dated December 24,1859, policy No. 57,826, to recover an assessment of .08; also, on note of $30, dated December 22, 1860, policy No. 59,850, to recover an assessment of .89; also, on note of $9.50, dated January 23, 1866, policy No. 70,092, to recover an assessment of $4.17. All of said assessments were made under a vote of the directors of the Farmers’ Mutual Fire Insurance Company, passed May 2, 1871, as follows: “Resolved, That the treasurer assess upon the premium notes held by this company a sufficient sum of money to pay all outstanding losses and damages by fire or lightning which have happened to members of this company, agreeable to the charter and by-laws of the same, and all money hired for the use of the company with interest upon it, and interest on losses still unpaid, together with such sums as may be necessary for the incidental charges in making and collecting this assessment; also, to equalize and reimburse the sums paid by members on unexpired policies, and for ascertaining the amount of the several losses by fire or lightning prior to December 2,1870.”</p> <p>I find that the treasurer, with the assistance of Isaac S. French, made the assessment, fixed the rates, made all of the calculations, and determined the amount to be paid by each person assessed ; that no report of the same was submitted to the directors, and no ratification by them made of the assessment, unless the vote of July 2,1872 — copy annexed — constitutes a ratification. Said assessment was made under that part of section 8 of the act of incorporation, of which a copy is annexed hereunto.</p> <p>I find that the assessment was made to cover the entire indebtedness of the company, — losses, hired money, interest on same and unpaid expenses, and a large amount of old uncollected assessments made in years past — part of them during the existence of the defendant’s policy, —to cover losses, and an indebtedness commencing in 1859 ; which assessments had been remitted and charged off by the directors at different times, — at one time to the amount of over $5,000, and at another of nearly $9,000 ; and, if said assessments had been collected, I find that the assessment of May 2, 1871, would have been very much less. This was made for the purpose of closing the affairs of the company. I find that, in addition to the indebtedness of the company as it was then supposed to be, there was included in its assessment about $1,600 for making the same, and for estimated future expenses up to July, 1872, for salaries of officers, for attending courts, and for printing and advertising; and also 80 per cent, of the full amount, I find that, including said overlay of $1,600, was in violation of the statutes.</p> <p>In this case (not in cases v. Gfoodell or Hildreth or Brown), it appeared that, at the time of the assessment, there were losses which the directors refused to pay, and which were not included. Judgments on the same to the amount of $2,400 have since been obtained against the company, and are now in full force.</p> <p>It appeared that, before the assessment was made, a large amount of premium notes had been given up by the treasurer upon payment of a certain sum by him fixed. I find that, in fixing the rates, those notes were included in the total amount of notes, and the rates of assessment are no higher by reason of the same being given up.</p> <p>The following notice was published by the treasurer of the company three weeks successively in the Laeonia Democrat, a newspaper published in this state; but it does not appear that the directors designated in what newspaper it should be published, as required by article 5 of the by-laws. It appears, by the testimony of Dr. French, that the treasurer proposed to publish it in said paper, to which some of the directors assented without any formal vote; to which evidence the defendant excepted:</p> <p>“ NOTICE.</p> <p>“ The directors of the Farmers’ Mutual Fire Insurance Company, of Gilmanton, N. H., have ordered the following assessment on the premium notes of said company for the payment of losses sustained by the members of said company, and return premiums on policies can-celled by said company, and incidental expenses, from Sept. 1,1869, to Dec. 2, 1870.</p> <p>“On all notes running six years on the old low cash premium plan, dated from Oct. 1, 1859, to Dec. 31, 1859, 5 mills (so for each quarter) ; July 1,1864, to Sept. 30,1864, 233 mills. New plan, — Oct. 1, 1864, to Dec. 31, 1864, 337 mills; (and for each quarter to) Oct. 1, 1870, to Dec. 2,1870, 53 mills. Dated Dec. 25, 1871.”</p> <p>The rates of assessment were made for each quarter of the year. Assessments were not made annually by the company, but were made once in two years, — not, in my opinion, in accordance with the requirements of the by-laws.</p> <p>On the first day of October, 1864, the directors abandoned their low cash premium plan of insurance, and required an advance payment of premium on each policy, sufficient, as was supposed, to pay its share of all losses and expenses that might occur ; and also required a premium note of the same amount as the cash premium paid in. The company continued business under that system until December 2, 1870, when they ceased to issue policies. I find that the treasurer applied a large amount of money, received under this plan, in payment of losses under the old or low cash plan, and that $5,000 of the money applied was included in the assessment. The total amount of cash premiums received under the new plan, after deducting all the running expenses of the company from October 1,1864, to December 2,1870, and paid to the treasurer, was $58,204.55. The total amount of losses under the new plan, during said time, was $41,851.19.</p> <p>The plaintiff took the position that, if the assessment was too large, the referee had authority to reduce it in amount, and find in favor of the plaintiff for the balance ; but the referee ruled otherwise, and the plaintiff excepted.</p> <p>If the court shall be of the opinion that the foregoing facts do not in law constitute a defence to this action, then I find that the defendant did promise in manner and form as the plaintiffs have declared, and assess damages in the sum of five dollars and forty-five cents.</p> <p>COPY OF SEC. 8 OF ACT OF INCORPORATION, IN PART.</p> <p>Sec. 8. And he it, $e., “ That the directors shall, after receiving notice of any loss or damage by fire, sustained by any member, and ascertaining the same, or after the rendition of any judgment as aforesaid against said company, for such loss or damage, settle and determine the sum to be paid by the several members thereof, as their respective proportions of such loss, and publish the same in such manner as they shall see fit, or as the by-laws shall have prescribed ; and the sum to be paid by each member shall always be in proportion to the original amount of his deposit note or notes, and shall be paid to the treasurer within thirty days next after the publication of said notice ; and if any member,” &c. * * * *</p> <p>COPY OK ART. 5 OK BY-LAWS.</p> <p>“Art. 5. Notice of assessments shall be given by the treasurer, and published in one or more newspapers printed in this state, as the directors may designate, at least three weeks successively, the last publication whereof to be at least fifteen days pi'ior to the time of payment. He shall give such other notice as the directors may order, and may appoint suitable persons to receive assessments in central places.”</p> <p>At the meeting of the board of directors of the Farmers’ Mutual Fire Insurance Company, held July 2, 1872, the following vote was passed:</p> <p>Whereas, The directors of the Farmers’ Mutual Fire Insurance Company have made an assessment to cover all debts, losses, and expenses of said company, and added the amount authorized by law thereto, and thereby made all the assessments that they are authorized to make, and considering it for the best interests of the company, and expedition in making collections ; therefore,</p> <p>Resolved, That the treasurer be authorized to give up the premium notes of any person on demand, when said person has paid all assessments and dues to the company.</p>

From Carroll Circuit Court. Trespass, qu. cl. fr., for breaking and entering the plaintiff’s close, situate in Eaton, known as the E. G. Linscott pasture, on January 15,1874, and on divers days and times between that day and the date of the writ, and cutting down and carrying away 100 hemlock trees and 100 spruce trees, of the value of $200, The list was not signed by the selectmen, otherwise than immediately following the list was the record of the warrant to the collector,…

From Carroll Circuit Court. Assumpsit. The defendant is described as Charles B. Gafney, of Rochester, in our county of Strafford, esquire, administrator of the estate of Moses Merrill, &c. The declaration is as follows: “ In a plea of the case for that the said defendant, at said Ossipee, on the day of the purchase of this writ, being indebted to the plaintiffs in the sum of six thousand dollars, for so much money before that time had and received by the defendant for the…

From Carroll Circuit Court. Trover, for one undivided half of three lots of pine logs, taken from certain premises in Madison, in this county, and converted by the defendant to his exclusive use in 1869, 1871, and 1873. Plea, the general issue.

From Carroll Circuit Court. Trespass, qu. cl. fr. The defendants were summoned to answer to 11 Sanborn B. Carter, of Ossipee, in said county, administrator of the estate of Adam Roberts, late of Tuftonborough, in said county, intestate, deceased, in a plea of trespass for that the said defendants, on the seventeenth day of July, 1874, with foi’ce and arms, broke and entered the plaintiff’s close, situate in said Tuftonborough, and cut down and carried away, and converted to…

From Merrimack Circuit Court. Bill in equity, filed by John S. Brown and six others, residents of Concord, having taxable property outside the limits of the water precinct in said city, against the city of Concord, and Samuel 0. Eastman, its treasurer, and William H. Allison, its collector, praying that the defendants be restrained from collecting and from paying out of the treasury of said city certain taxes claimed to have been illegally assessed.

Erom Merrimack Circuit Court. This is a petition for the assessment of the defendant’s land damages, under chapter 20 of the laws of 1868, entitled “An act to encourage manufactures.” The petition… Held: only after elaborate discussion, that a railroad of a private corporation, if for the use of the public by paying a toll to the owner, and subject to be regulated bylaw, may be authorized to take private property, and that such taking is for public uses.

From Merrimack Circuit Court. Assumpsit, upon a policy of insurance. The action was sent to a referee, who, at the April term, 1875, made his report as follows : The property insured was situated in New Hampton.

From Merrimack Circuit Court. In equity. The bill prays for an injunction restraining said Parker from selling or transferring the notes mentioned in the report of the referee, and that the same may be delivered up to be cancelled. The cause was committed to a referee, who reported the following conclusions of fact and of law ; and the questions arising thereon were transferred to this court for such action, order, or decree, as may be directed by Foster, 0.

From Merrimack Circuit Court. Case, against the Northern Transportation Co. of Ohio, and against Wm. A. Wheeler, Wm.

From Merrimack Circuit Court. Action, to recover damages by reason of the loss of service and expense occasioned to the plaintiff on account of an assault made upon the plaintiff’s wife by the defendant.

From Merrimack Circuit Court. Libel for Divorce. At October term, 1874, this action was by order of court sent to a referee, who, after notice to the parties and a full hearing, made a general report in favor of the defendant. At the request of the parties he reported the facts found proved by him. Upon the presentation of his report, the plaintiff elected to try the case by the court, claiming that she had the legal right to be so heard, but assigning no other reason.

From Merrimack Circuit Court. Petition for Partition. The petitioner alleges that she is the wife of Luke Pillsbury; that Sarah Frazier, deceased, was in her lifetime seized, as widow of Levi Frazier, of certain real estate as tenant in dower, which real estate was set out to her by metes and bounds; that the same was set out to her October 28, 1858; that the petitioner and one Julia Ann Currier, daughters of said Levi Frazier, were seized as tenants in common of the said…

From Merrimack Circuit Court. Case, to recover damages for an injury claimed to have been caused by a defect in a highway in said town. The existence of the highway was admitted. It runs north and south —through Bow to Hooksett. The defect or obstruction complained of was a stone upon the east side of said highway, and near to the shoulder of the road, but in the gutter on that side of the road.

From Merrimack Circuit Court. This action was sent to a referee, who reported in favor of the defendants, and, at the request of the plaintiff, reported his conclusions of fact and of law as follows: The action is trespass for assault and imprisonment.

From Hillsborough Circuit Court. Petition, for the abatement of taxes, entered at September term, 1874. On April 1, 1874, and for a week following, the selectmen of Weare, from day to day, called upon the property-holders in town to ascertain facts from which to make their inventory. April 2 they called upon Melvin to ascertain from him what personal and real estate he owned in town liable to be taxed.

Hillsborough County. Petition, for a writ of mandamus, filed by ten of the inhabitants and legal voters of the town of Mason, complaining that the defendant, who is town-clerk of said town, omitted to record the proceedings of the annual meeting, held in the afternoon of March 9,1875, and that the record, as made by him, of the proceedings in the forenoon is incorrect, and praying that he be commanded to amend his record to correspond with the facts.

Action on the Case. Plea, not guilty. Writ dated May 3,1872, contains five counts. The first sets out a contract for service between said plaintiff and one Albertina Larson, and charges the defendant with wrongfully and unjustly enticing, persuading, and procuring said servant to make default, and abandon said contract.

From Hillsborough Circuit Court. DECLARATION. In a plea of the case, for that whereas, in consideration that the plaintiff, at said Nashua, to wit, at said Amherst, at and on divers days and times between June 1, A. D. 1868, and the second day of October, A. D. 1874, had deposited divers sums of money, to wit, nineteen hundred and sixty-six dollars and forty-seven cents, in said City Savings Bank, upon the terms, regulations, stipulations, and conditions named and set forth…

Hillsborough County. Bill in Equity, to compel the specific performance of a contract, in writing, to convey certain real estate in Nashua. It is the same case reported in 51 N. H. 400. The cause was sent to a master, from whose report it appeared that one Hoag, October 2, 1865, paid the defendant $100 in cash, and gave him his promissory note for $500, payable in yearly payments of $100, and interest annually until paid.

Hillsborough County. Appeal, from the decree of the judge of probate for the county of Hillsborough, for the filing of copies of a will and codicil, and of the probate of the same in Canada, under sec. 50 of ch. 1 of the Laws of 1868. After the appeal was entered in this court, the parties agreed upon the following facts for the opinion of the court: The will was executed at Manchester in 1869, the testatrix being then a resident of said Manchester.

From Hillsborough Circuit Court. Case, brought by the plaintiff, who was one of the selectmen, and also highway surveyor for the year 1870, in the town of Mason, against the defendants, who were selectmen of said town for the year 1871, for improperly issuing against him as such highway surveyor an extent for one hundred dollars, whereby his property was taken and sold at auction to satisfy the same. Plea, the general issue.

From Hillsborough Circuit Court. Assumpsit, to recover a note for $150, dated Dec. 10, 1873, on three months, and an account for money loaned amounting to $70. Gustav Freschl, one of the defendants, was defaulted, and Joseph Freschl, the other defendant, filed an affidavit that the note was not the note of Joseph Freschl & Co. Plea, the general issue.

Hillsborough County. This was an appeal from the doings of the mayor and aldermen of the city of Manchester in laying out a highway over the land of the petitioner. The petitioner alleged that he was aggrieved by the decision of the said mayor and aldermen, both in the laying out of the highway, and in the assessment of damages. The petition was entered at May term, 1872, and referred to the county commissioners.

Hillsborough County. Petition for abatement of taxes. The case was referred to a commissioner to report the facts, who subsequently made report as follows : “ I find the following to be the material facts involved in said cause ; that is to say, I find and report, that, in the assessment of the public taxes by the city authorities of Manchester for the year 1878, a tax of sixty-two dollars and fifty cents was assessed upon a lot of land, on the corner of Beach and Laurel…

Hillsborough County. Action under the landlord and tenant act to recover the possession of a certain tenement in Manchester. It was originally commenced in the police court, where the defendant pleaded soil and freehold, and it was transferred to this court.

From Hillsborough Circuit Court. Libel roe Divorce, by Waity A. Moore against Jonathan B. Moore, which, with the cross-libel filed by Jonathan B. Moore against Waity A. Moore, was heard, at the January term, 1873, of the supreme court, before Sargent, C. J., who decreed a divorce in favor of the said Jonathan B., and denied a divorce to the said Waity A., and also dismissed her petition for alimony.

Cheshire County. Bill in Equity, brought by certain tax-payers in Keene against the city and its officers, praying for an injunction to restrain them from levying a tax, or in any other way raising or appropriating the money or credit of the city to aid in the construction of the Manchester & Keene Railroad. The question came before this court on an agreed statement of facts, which sufficiently appear in the opinions.

From Cheshire Circuit Court. Assumpsit. Tried before Ladd, J., and a jury. Plea, the general issue.

From Cheshire Circuit Court. Trespass quare clausum, and cutting and carrying away wood and timber from the Fox lot, so called, in Chesterfield, prior to March 19, 1870. Plea, the general issue. The action was, at the October term, 1874, referred by order of court to a referee, who gave due notice of the time and place of the hearing to the parties.

Cheshire County. * Assumpsit. The plaintiff’s specification was as follows : “ This action is brought to recover the sum of $667, for so much money bad and received of the plaintiff by the defendant, at different times between January 6,1860, and October 16, 1866, which amount the defendant promised to repay with interest, viz.,— Received of the plaintiff, on or about April 6, 1860, $19.50 July 6,1860, 19.50 October 6, 1860, 19.50 January 6,1861, 19.50 April 6,1861, 22.75…

SENATE CHAMBER, Concord, New Hampshire, June 3, 1875. To the Eon. Justices of the Superior Court of the State of New Eampshire : Gentlemen: — I herewith enclose a copy of a resolution this day adopted by the senate, and respectfully ask Your Honors’ opinion upon the same at the earliest practicable moment. Most respectfully yours, JOHN W. SANBOEN, President. STATE OF NEW HAMPSHIEE. IN THE YEAR OF OUR LORD ONE THOUSAND EIGHT HUNDRED AND SEVENTY-FIVE. In Senate, June 3,1875.

HOUSE OF REPRESENTATIVES, Concord, New Hampshire, June 3, 1875.