Volume 58 — New Hampshire Reports

Indictment, for being, in this state, accessory after the fact to a burglary committed in Massachusetts. The defendant demurred, because his act was not alleged to have been done feloniously.

Bill in Equity, for the reformation of a deed. The court found that tlio plaintiffs bought a farm of the defendants, and paid for it; that a part of tlio farm containing ten acres, included in the bargain and paid for, was, by the fraud of the defendants, not included in the deed ; and that the plaintiffs, by the exercise of ordinary care, would have discovered the fraud when the deed was made.

, In Equity. The question is, whether the plaintiff is the widow of Thomas Webster. In 1833, slie married one Farnsworth, with whom she lived in Massachusetts until 1847, when he deserted lier. lie died in 1872. She has not seen him since 1848, and more than twenty years ago she heard he was dead. In 1855, she married Thomas Webster, in Massachusetts, and afterwards lived with him in this state until 1872, when she left him. He died in 1873.

Bill in Equity, to set aside the agreed case in Brewster v. Brewster, 52 N. H. 52, for fraud, accident, and mistake. In the circuit court, January term, 1876, the bill was dismissed, and the plaintiffs excepted.

<p>An attorney may be removed from office for wrongfully appropriating to his own use money of a town received by Mm as collector of taxes.</p>

Bill in Equity, to. establish the construction of a will. The residue of the testator’s estate is given to Joseph, the defendant’s ward, his heirs and assigns. But if Joseph “ shall die under age and unmarried, or under age and married and leaving no child living at his decease,” “ the said residue” is given to other persons.

<p>The interest of an attesting witness of a will, to be disqualifying, must be a present, certain, and vested interest.</p> <p>The name of an attesting witness of a will who is unable to write, may be written by another, at his request, in his presence and in the presence of the testator.</p> <p>The fact that a will was written by the executrix, who was also residuary legatee, is evidence to be considered by the jury on the question of fact whether the will was obtained by her undue influence and fraud; but the law does not require her to explain why the will was written by her.</p>

Debt, on a Massachusetts judgment rendered by a court of common pleas that had been abolished. The judgment does not appear to have been attested by the clerk of that court. The copy produced is attested by the clerk of the superior court, to whose custody the records of the common pleas have been by law transferred, and who is the proper officer to make and certify copies thereof. The defendant moves for a nonsuit.

Bill in Equity, to establish the construction of the will of Mary S. Madigan, of which the plaintiff is executor, and by which the testatrix gave to her mother, Nancy Burns, the defendant, “ one half of all the rents, profits, and income of all my property, both real, personal, and mixed, during her natural life,” and declared it to be her will and request that her property should “ be managed in the same manner as heretofore, without division.” Subject to exception, the…

Case, for personal injuries from a defective highway. The defect was shown in the highway, and the manner of the plaintiff’s driving at the time of the injury. The evidence was conflicting as to whether the horse was frightened and unmanageable, or was unmanageable from having the bits out of his mouth when near and at the defective place.

Three of the reasons of appeal were,- — (1) tlie appointment deprives the plaintiff of the custody of liis child ; (2) was made without notice to tlie plaintiff; (8) was in disregard of the known wish and expectation of tlie defendant’s husband, now deceased, who left the child a legacy of $5,000. To those reasons the defendant demurred.

<p>Probate Appeal. Pacts found by a referee. The plaintiff and his brother were residuary legatees of their father. The plaintiff, being sole executor, gave the bond of a residuary legatee, and did not post a notice of his appointment at a public place. The defendant, who claims to be a creditor of the testator, has understood, ever since the testator’s death, that the plaintiff was executor. After the lapse of three years, the settlement of the estate being completed, the residuary legatees being in bankruptcy, the real estate being held by innocent purchasers, and the defendant’s claim being barred by the statute of limitations unless the administration can be defeated or suspended, the defendant petitioned the probate court for the removal of the plaintiff from the office of executor; and, upon the defendant’s petition, the plaintiff, failing to furnish an ordinary administration bond as then required by the probate court, was removed. Prom the decree of removal the plaintiff appealed.</p> <p>The defendant’s right to maintain a suit was not barred.</p> <p>1. Because the appellant never posted any notice of his appointment as executor, as required by Gen. St., c. 176, s. 14. The notice required by law is indispensable. Hawkins v. Ridenhour, 13 Mo. 125, 130 ; Steuart v. Carr, 6 Gill (Md.) 430 ; Lee v. Patrick, 9 Ired. L. (N. 0.) 135, 137 ; Gilliam v. Willey, 1 Jones Eq. (N. C.) 128. The same rule is recognized in Dolbeer v. Casey, 19 Barb. 149, 155, although not there applicable.</p> <p>2. Because the appellant never gave any bond as required by Gen. St., c. 176, s. 12.</p> <p>The bond actually given by him was void, for two reasons :</p> <p>1. Because, not being a sole residuary legatee, he was not a residuary legatee within the meaning of Gen. St., c. 176, s. 13. Tappan v. Tap-pan, 24 N. H. 400, 404; Heydock v. Duncan, 43 N. II. 95, 99.</p> <p>2. Because the widow did not inform the judge in writing that she accepted the provisions of the will, as required by Gen. St., c. 176, s. 13. That this is also indispensable, is assumed by Bell, O. J., in Morgan v. Dodge, 44 N. H. 262, 264, and admits of no doubt.</p> <p>The appellant, “ having given no bond such as the statute requires, cannot be regarded as having the trust of executor.” Tappan v. Tappan, before cited. By the express terms of Gen. St., c. 176, s. 12, lie is not to be “ considered as having that trust” until he has given bond to the judge as that section prescribes. He is not entitled now to settle an account as executor (Tappan v. Tappan, above cited), but stands like any other executor, de son tort.</p> <p>“ By our statute, the judge of probate has no jurisdiction or authority to appoint an executor until lie has given such a bond as the law requires ;” and this appointment was utterly void. Heydock v. Duncan, before cited.</p>

Entry, on a mortgage made by the defendant to the plaintiff. The defendant made no defence. One Plumer, who had been admitted to defend the action, offered to prove that he had a good title to the demanded premises, not derived from the plaintiff or the defendant, and that the defendant, having no title, could convey none to the plaintiff.

Assumpsit, upon a promissory note. The consideration of the note was a verbal assignment by the plaintiff to the defendant, of his right to sell a patented knitting machine in three towns in Carroll county, under his written appointment as agent of the Bickford Novelty Manufacturing Company. The defendant claimed that the note was obtained by fraud, and that no right passed to the defendant by the assignment. The patentee of the machine was one Dana Bickford.

Petition, for a highway in Tuftonborough. After notice, tlio defendants appeared, and the petition was referred to the county commissioners, whose report, laying out the highway, the defendants moved to set aside. The objections to the report related to the form of the petition, the conduct of the commissioners and some of the favorers of the road, and the proceedings at the hearing before the commissioners.

Bill in Equity, for a homestead, and an account of rents and profits. Facts found by the court. Mr. Fellows, owning the premises, and occupying them as a homestead, subject to two homestead mortgages signed by himself and wife, and being adjudged a bankrupt, his assignee sold the equity of redemption to the defendant. The defendant afterwards bought the mortgages, obtained judgments upon them, and caused the judgments to be enforced by the execution of writs of possession.

Probate Appeal. The plaintiff petitioned the probate court, representing that he is an heir at law of Wm.

In Equity. The cause was sent to a referee, who reported, in substance, that on May 6, 1856, in pursuance of a prior agreement between Iliram Mace, James George and 1ns wife Nancy, and Joseph Kennard, Mace deeded a farm to Nancy lor $1,200, but not to hold to her sole and separate use, free from the interference and control of her husband.

Writ op Attachment, in the common form, against the defendants, as a religious society, and a body politic and corporate, located at Franklin in Merrimack county. The officer served the writ by attaching real estate, and giving a summons, duly endorsed, to the defendants’ clerk, and another to their president. At the return term, the defendants moved to dismiss for want of legal service.

Writs op Entry. Plea, nul disseisin. A referee, to whom the causes were committed, found for tlio plaintiffs, severally, “ subject to the easement of the defendant to have and maintain the timbers in said wall, as now inserted,” &o. The defendant having elected a trial by jury, the plaintiffs moved that the report be recommitted for the purpose of having that portion thereof relating to the easement stricken out.

Motion, to quash a writ signed and issued by the clerk of Merrimack, and made returnable and entered in Hillsborough. The ground of the motion was, that when the blank was filled, “ Merrimack” in the margin was erased, and “ Hillsborough” inserted.

• Assumpsit, on a note made by the defendant in September, 1862, payable to the plaintiff, on demand, with interest. Suit brought in August, 1875. There is a plea of the statute of limitations, and a replication of a new promise within' six years.

Case, for damage caused to the plaintiff’s land by the improper construction of a highway over it. The facts were found by a referee. The highway was legally laid out, and opened to public travel, and included in one of the highway districts of the city. It was built by one Mitchell, under a contract made in behalf of the city by the highway committee of the board of mayor and aldermen.

Petition, for an abatement of a tax. The court appointed a committee to find and report, — 1. The true value of the plaintiffs’ estate described in the petition, in April, 1875. 2. The true value of real estate in Manchester other than the plaintiffs’, as near as they could estimate it, compared with its assessed value in April, 1875. 3. The rate per cent, of taxation in Manchester for the same year.

Bill in Equity (reported in 56 N. H. 514), brought by tax-payers of the city of Keene, for an injunction to prevent the execution of a vote of the city councils appropriating money to aid in the construction of that part of the Manchester and Keene Railroad which shall be laid out between Greenfield and Keene.

Case. The declaration contained two counts, — one in trover for a yoke of oxen, and another setting forth, in detail, grounds upon which the plaintiff claimed to recover special damages for the taking and conversion of the same oxen. At the trial the plaintiff read and relied only on the count in trover.

Indictment, for embezzlement alleged to have been committed on a certain day, “ and on divers other days between that day, and. a certain other subsequent day.” The respondent moved to quash.

Writ op Entry, to recover a tract of land,- attached when it belonged to one Cole, in a suit brought against him by the plaintiff. In that suit, the plaintiff recovered a judgment which was satisfied. Cole reviewed the action; the amount of the plaintiff’s damages was increased, and an execution for the excess and costs was levied on the demanded premises, which Cole, before the rendition of the judgment in review, had conveyed to the defendant.

Assumpsit, on the. common counts. The action was brought before a justice of tlio peace to recover one half of fence-viewers’ fees paid by the plaintiff, and was carried to the circuit court by appeal. The court allowed the declaration to be amended by the addition of a special count averring- the facts that showed the plaintiff’s right to recover upon the statute, and the defendant excepted.

Appeal, from a decree of the judge of probate, making an allowance of $1,000 for present support to the appellee, the widow of W. O. C. Woodbury, who died intestate, leaving an estate of $12,856.03 (a homestead appraised at $2,700, and the rest personal), and debts amounting to $41.58. The widow and the father of the deceased are the heirs. The widow occupies the homestead, and has $2,000 in Claremont town bonds.

Trover, for a wagon, and a receipted account of the plaintiff against the defendant. The plaintiff gave the wagon and receipted account to the defendant in exchange for a horse.

All the defendants live in the same house and in the same family, and there is no other family in the house. An officer having a writ against them, left one copy only, and made return as follows : “ Grafton ss. April 17, 1876. I have summoned the witliin-named defendants, as within commanded, by leaving at their usual place of abode an attested cojiy of this writ.” There was no other service made.

Trover, for a horse, wagon, and harness attached by the defendant, and claimed by the plaintiff as exempt from attachment.

Bill in Equity, to foreclose a mortgage. The answer admits the execution of the mortgage, and. states, in substance, that the defendants purchased of the plaintiff’s testator a farm known as the “ Richard Ford farmthat the parties knew what lands were to be conveyed, but the testator, when he made the deed, omitted, by accident or design, to include in his conveyance a large tract of land, of great value, that was included in the purchase, and that the mortgage and note in…

Foreign Attachment. Issue between the plaintiff and the claimants. Facts found by a referee. The claimants, holding two notes of the defendant for $200 each, secured by a mortgage of his farm, allowed him to cut wood on the farm under an agreement that the avails of the wood should be applied to the payment of the notes.

Case, to recover damages for injuries to the plaintiff’s land, occasioned by flowage. Facts found by a referee. The plaintiff is the owner of lands situated on both sides of Clear Stream, in the town of Errol. Clear Stream, where it divides these lands, is a public highway, for the purpose of driving logs in the season of the year when such business is usually done, and in times of high water. The defendants own timber lands on the stream, above the plaintiff’s lands.

Appeal, from the laying out of a highway by the selectmen, referred to the commissioners,' who affirmed the decision of the selectmen. The report of the commissioners was set aside, because the laying out which they affirmed was made subject to certain conditions. Underwood v. Bailey, 56 N. H. 187. The court again referred the case to the commissioners, and the plaintiff excepted.

Case. Some time after the cause had been given to the jury, and they had informed the court by a written message that they could not agree, the officer having charge of the jury was directed to inform them that they were discharged from the further consideration of the case, and that two of them (who were sick) were discharged from all further service. When the officer executed this order, one of the jurors proposed that another vote be taken on the case.

Bill in Equity, referred by order of court. On the return of the report the plaintiff elected a trial by jury. The court ruled that the plaintiff was not entitled of right to a jury trial, and ordered a decree for the defendant, to which the plaintiff excepted.

Assumpsit, on notes. The plaintiff objects to the admission of evidence tending to show that the notes had been paid by the assignment of a patent right.

Appeal, from the decision of the commissioner, disallowing a claim of the appellants, as executors of Lombard, against one Hall, of whose estate the appellee is administrator. The appellant, Bedell, was judge of probate for the county of Coos. The appellee pleaded that Be-dell appointed the commissioner, approved and accepted the report, allowed tlie appeal, and issued the order of notice. The appellants demurred.

Assumpsit, on the common counts against the defendants as partners, under the name of The Essex Well Company. After the first term, the declaration was amended by tlie addition of a count on a note, signed “ E. F. Bailey, Agent of Essex Well.” There was no evidence tending to show that the defendants authorized Bailey to give the note, or held him out as having authority to give it, or were estopped to deny his authority.

Bill in Equity, for an injunction to prevent the use of land for a cemetery within twenty rods of the plaintiff’s dwelling-house.

<p>One who keeps and trains another’s horse, at the owner’s request, has a statutory lien for the keep, and a common-law lien for the training.</p>

Petition, setting forth that the plaintiffs were notified that the defendant town, on the 15th day of March, 1876, at a legal meeting, “ Voted, that the town of Derry require the Nashua & Rochester Railroad to locate a stopping-place and depot in the town of Derry, on the line of said railroad, west of the Back Meadows, so called, the said railroad not having established any proper stopping-places for the public accommodation of said town that the plaintiffs protest that if…

Indictment, for larceny of a printed list of names and dates. Tlie persons named were subscribers to a newspaper, and the dates were the periods to which they had paid. The owner made up his account-books from this list once a month.

Bill in Equity (reported in 55 N. H. 531), against the Boston & Maine Railroad, the Eastern Railroad, and their directors, for an injunction to prevent the directors carrying out a contract, alleged to have been made by them for “ pooling” certain earnings of the roads, in violation of the statute of railroad monopolies (Laws of 1867, c. 8). At the trial in the circuit court, questions were raised concerning the competency of evidence.

In Equity. The plaintiff sought to compel the reconveyance of nine shares of stock in the Mechanics and Traders’ Bank. The bill was taken, pro confesso, as to the defendant, Francis W. Ham. Supply Ham, who died in 1862, by his will gave to his wife Elizabeth, among other things, the income of a store for life.

<p>A motion to set aside a verdict on the ground that it is against the evidence, raises a question of fact to he decided at the trial term.</p>

Indictment, for the sale of two glasses of spirituous liquor to one Thomas J. Sweat, Feb. 6, 1876. Sweat and the defendant testified that the defendant sold Sweat two ounces of whiskey, in February, 1876. The defendant offered in evidence a certificate of a registered pharmacist, issued to him by the commissioners of pharmacy. The court excluded it, and the defendant excepted.

Indictment, against a druggist for selling spirituous liquor, on the 2d day of January, 1876, to John C. Sweat. Verdict, guilty. Sweat having testified to the sale, at about the time alleged, by the respondent’s clerk, the clerk, as a witness for the respondent, testified that he had not sold any liquor since the Reform Club was formed, in the preceding November.

Indictment, charging that the respondent, “ not being an agent, * * * did then and there unlawfully, knowingly, and criminally keep-for sale, one half pint of spirituous liquor to one John C. Sweat, contrary to the form” &c. To this indictment the respondent had pleaded not guilty, at a previous term of court.

Qui tam, to recover a penalty. The declaration alleges that the defendant, being an officer, upon view of an offence committed by one C., arrested him without a warrant, between sunset and sunrise, and did not promptly carry him before the police court within twenty-four hours next after the arrest, but, after detaining him one hour, allowed him to depart. The defendant demurred.

Assumpsit, on a policy of life insurance. The suit was entered at the February term, 1875, and continued to the September term, and then continued to the February term, 1876, when the defendants filed a petition for removal into the circuit court of the U. S. On account of other business entitled to precedence on the docket, the third term (when the petition was filed) was, in fact, the first term at which this cause could be tried.

Indictment, for keeping spirituous liquor for sale. Officers who had searched the defendant’s house, testified that they found in it a counter like a bar, a jug of whiskey, two jugs of gin, a barrel of ale on draught, a pitcher and two pails containing ale, and two tumblers with the froth of ale fresh upon them; and that the defendant, who was sitting with two other men near the bar at the time of the search, said to the officers, — “You’ve catehed me fair.” The defendant…

May 1,1876, the trustees insured the defendant in their company for 1350, on personal property. On the twentieth of the same month, a portion of the property was burned. On the twenty-fifth, the loss was adjusted by the parties at 1241.25. The writ was made and served on the twentieth, after the loss. Yarrell claimed the money as assignee, but proved no assignment of it.

<p>An indictment under c. 257, s. 6, Gen. St., which contains no averment of respondent’s neglect to give information of the incumbrance, so far as he knows, before any part of the consideration is paid, is bad, and will he quashed on motion.</p>

Assumpsit, for money had and received by the defendant as the price of the plaintiff’s 'land, which the defendant, by warranty deed, sold without authority. The plaintiff demanded the money of the defendant before suit. The facts were found by the circuit court.

Assumpsit, on a policy insuring a house upon condition that, if the house is vacated by the owner or occupant, notice thereof shall be given to the secretary of the company prior thereto, stating the particulars of such vacation or removal, and the length of time the house is to remain unoccupied. Facts found by a referee.

Trover, for two $500 bonds of the state of New Hampshire, payable in twenty-one years “ to the order of -,” being part of the municipal war loan provided for by c. 3,… Held: that if the endorsee holds the note as collateral security for the endorser, he holds it as his trustee, which permits the maker to show failure of consideration, or set-off, or any other equitable defence he may have, as if the suit had been brought in the name of the person to whom the note is payable.

Assumpsit, upon a sheriff’s receipt for property attached upon writs against one Putnam. Judgments having been obtained, executions were placed in the officer’s hands, who made a legal demand upon the defendants for the property, which they refused to deliver. The defendants were mortgagees of the property, all of which was in this state.

Foreign Attachment. On the trustees’ pay-roll, indicating the names of persons working for them, appeared the name of a Frenchman, who, in October, 1875, answered to the name of Peter Shepard, and in November to that of Peter Stone, and as such received his wages for those two months, which are the funds which the plaintiff claims.

The first of these actions is assumpsit, to secure a lien for hauling logs ; the second is trover, for conversion of the same logs. Calef, under a contract with the defendants, Brinley & James, hauled to the bank of Merrimack river logs at $2.50 per thousand feet, which the Kennards had sold to them, to be cut by the Kennards, and taken by Brinley & James on the lot where they grew.

In Equity. After a verdict for the plaintiffs on issues submitted to a jury, the defendant petitioned for a new trial on the ground of newly discovered evidence.

The respondent was indicted, jointly with one Bourne, for murder. He moved for a separate trial. The court denied the motion, and he excepted. Before the jury were impannelled, the respondents were informed that they were each entitled to twenty peremptory challenges. One Cutter was called as a juror, and accepted by Doolittle, but challenged by Bourne, and, against the objection of Doolittle, set aside by the court.

Appeal, from a decree of the judge of probate, allowing the defendant’s account as executor. Among other items allowed were two for cash paid the judge of probate for his services by the executor. From the allowance of these the plaintiff appealed. It did not appear that the services for which the judge was paid came within the provisions of s. 10 or s. 13, c. 170, Gen. St.

<p>Case, for negligence, whereby the plaintiff’s horse was killed. Verdict for the defendants. The case is reported in 54 N. H. 496. The defendants, by permission of the White Mountains Railroad corporation, were accustomed to run their cars and engines over a part of the track of the corporation, including a highway crossing. The plaintiff claimed that the crossing was obstructed by the defendants’ cars, which (the evidence tended to show) were unloaded at the time. As tending to support their denial of this position, the defendants were permitted to introduce evidence of their custom to have a certain number of cars of a certain length for a train, and to bring.them together after being unloaded, so' that they would not extend to or across the crossing, — the witness having no personal knowledge of the manner in which the cars were managed at the time in question.</p> <p>Subject to the defendants’ exception, the plaintiff was permitted to put in evidence the following letter, written by the defendants’ clerk, in reply to a letter received by them from the plaintiff’s counsel:</p> <p>“ Dear Sir : Enclosed find $20, which please tender Mr. E. S. Hall as fine upon us for blockading the highway for more than three minutes the time his horse took fright, run away, and was killed. We have consulted good counsel, and they tell us this is all we are holden for. Also, enclosed find $1 for the letter which you wrote the selectmen of this town in regard to this matter. Yours resp.</p> <p>“A. L. & W. G. Brown & Co.”</p> <p>The evidence tended to show that the defendants talked the matter over, and directed their clerk to write this letter; and, subject to exception, one of the defendants was permitted to testify as to the particular instructions given the clerk at the time he was directed to write the letter, as bearing on the question whether the letter was an offer to settle, or an admission of a distinct fact. Neither of the defendants saw or read the letter, which was sent, with the money, by the clerk.</p> <p>The court instructed the jury, that if, on the evidence, in connection with the letter itself, they found it contained an admission of any distinct fact made by the defendants, they should consider it; but if, from the evidence in connection with’ the letter itself, they found it was an offer to settle and compromise the plaintiff’s claim merely, without admitting any distinct or independent fact material to the case, it was not evidence, and should not be considered by them.</p> <p>The plaintiff moved to set aside the verdict for error in the foregoing rulings and instructions, and because there was no evidence of the legal existence of the White Mountains Railroad, or of their authority, derived from any grant of the legislature, to maintain and operate their railroad across the highway.</p>

In Equity. The plaintiffs allege that the defendant Howland, as tax collector, sold their land for taxes to the defendant Oakes, and caused an account of the sale to be recorded; that the sale was illegal and void, “ for reasons apparent upon the facts and records” stated and referred, to in the bill.

Assumpsit, to secure a lien. Facts found by the court, who reserved the question, whether, under Gen. St., c. 125, ss. 11 and 12, and Laws of 1868, c. 1, s. 38, the plaintiff’s sixty days lien, for labor performed and materials furnished for erecting the defendant’s building, had expired. The last labor was performed and the last materials were furnished more than sixty days before the attachment.

Assumpsit, on a note made sixteen years before suit, and signed “ Mascoma Rake Co., by D. Currier, Agt.” Plea, the general issue, with a brief statement of the statute of limitations. Facts found by a referee. The plaintiff introduced a personal mortgage, under seal from the defendants, signed in the same manner as the note, and given to secure it.

Bill in Equity, praying for an order of sale of land claimed by the plaintiffs to be held in common with the defendants. The plaintiffs claim title, by the levy on the land of two executions issued on personal judgments against the defendants’ mortgager, in actions brought to secure the statute lien for labor and materials.

Trespass, quare clausum. Facts found by a referee. The defendants, with their servants, were engaged in driving a large quantity of logs down Clear Stream, and into Androscoggin river at the mouth of Clear Stream. The plaintiff’s land is situated on both sides of the stream, and is all under cultivation.

Foreign Attachment. The trustee is one of the station agents of the defendant corporation, and in his deposition disclosed money in his hands at the time of service of the plaintiffs’ writ, and subsequently, received by him from the sale of passenger tickets and for freight. The question is on his liability as such trustee.

Case, to recover damages occasioned by the flowing of the plaintiff’s land on the Androscoggin river, below the defendants’ dams. Yer-diet for the plaintiff.

Motion, to change the venue on the ground that a fair and impartial trial cannot be had. The court, holding as matter of law that, this must be made conclusively to appear, denied the motion, and the defendant excepted.

Information, in the nature of a quo warranto, pending at the trial term. The respondent moved to dismiss, for want of jurisdiction. The motion was denied, and the defendants excepted. The state moved that the ease be transferred to the law term. The motion was granted, and the defendants excepted.

Trover, for a wagon. The defendant, March 12, 1873, bought the wagon of his brother James for $60, the wagon being two and a half miles away, in an open shed, on a farm formerly owned by the defendant’s father. The defendant did not see it that day.

Writ oe Entry. (Reported in 55 N. H. 488.) The plaintiff claimed under a deed from one Downing. The defendants claimed under the levy of an execution issued upon a judgment recovered by them against Downing in a suit in equity, in which the land was attached after the deed from Downing was delivered, and before it was recorded. By the writ in that suit, the officer was commanded to attach property to the amount of $2,000.

Assumpsit, to recover $12,348.42, alleged to be the unpaid balance of an original debt for double that amount, contracted in April, 1864. The defendant claimed that the whole original debt had been discharged by a fifty per cent, composition between the defendant’s firm and its creditors, paid and received in full satisfaction.

Assumpsit, for money paid. /.The plaintiff and the defendant indorsed certain promissory notes, in order to enable their respective sons, who were copartners, to raise money. The indorsement of the plaintiff’s name was prior in position upon the note to that of the defendant, though made at the same time.

Case, for damage alleged to have been caused by a defective and insufficient highway. The plaintiff claimed that he was injured by his carriage running against a tree and certain rocks. The highway had been used as such for more than twenty years. The tree and rocks were outside of the highway that had been so used. In the original declaration, they were alleged to be obstructions in the highway.

Assumpsit. On the question of discharge in insolvency, the judge, at the trial term, ruled according to the previous decision in this case, reported in 57 N. H. 168, and the defendant excepted. Verdict for the plaintiff. Motion of the defendant for a new trial.

<p>Motion, to set aside tlie verdict as against the evidence. The court denied the motion, and the defendant excepted.</p>

Assumpsit, for labor and services performed by the plaintiff as keeper of property attached by one Peaslee, a deputy of the defendant, who employed the plaintiff.

Review, of the case reported, in 62 N. H. 62, and 54 N. H. 184. The question reserved is, whether the agreed case, stated in 52 N. H. 52, is evidence in a jury trial of this review. In 54 N. H. 184, it was decided that the agreed case was evidence of the facts stated in it, not only for the purpose of obtaining a decision of the questions of law arising upon it, but for all purposes to the close of the suit.

Petition, for tlie discontinuance of the highway laid out in Candia, Hooksett, and Auburn, by the judgment in Chandler v. Candia, 54 N. H. 178.

Case, for injuries received by the plaintiff in a collision of the defendants’ freight trains W and F, when he was driving the engine of train W as the defendants’ engineer. The action was entered at the January term, 1875. At the second term the docket entry is, — “ Ref. to W. J. Copeland, Frank P. .Cram, Jewett Connerand the record of the third term is, — “ Report.

Case, against a common carrier for the loss of a package of money. The package was delivered to and embezzled by one Nelson, January 4, 1875, and the question was, whether the defendant authorized Nelson to receive the money as his agent, or held him out as having such authority.

Case, for an injury to the plaintiff’s horse, occasioned by a defect in a highway, while bailed to and driven by one DeLancey. Other material facts appear in the opinion of the court. Yerdict for the plaintiff, and the defendants moved for a new trial.

Assumpsit, on a note for $1,600, signed by the defendant and payable to Paul Randall, who died, and the plaintiff is executrix of his will. Pleas, the general issue, and the statute of limitations. The plaintiff, Mrs. Gilman, the wife of the defendant, and Mrs. Mary Stone, were the heirs of Randall. By the will he gave $1 to Mrs. Gilman, $50 to Mrs. Stone, and the rest of his estate to the plaintiff.

Writ op Entry, on a mortgage. This is the same case reported in 54 N. H. 174. The jury found the note and mortgage were paid and discharged by agreement of the plaintiff and the defendants, and that that agreement was not afterwards abandoned and rescinded by the plaintiff and Mary E. Tilton. The plaintiff offered to settle the partnership accounts with his former partner, Horace, by retaining the chattels, calling their accounts square, and giving up the note and mortgage.

Case, for personal injuries to the wife, occasioned by a collision of the defendants’ locomotive and her wagon, at a crossing of the highway and the defendants’ road. The fault alleged in the declaration was, in substance, that the defendants did not make a safe and convenient crossing for travellers, and negligently suffered it to remain unsafe.

Case, against the defendants as common carriers. June 6,1874, at Portsmouth, the plaintiff delivered to the defendants, express carriers between Portsmouth and Boston, to be forwarded to Boston, a package containing money, a note, and check, and took this receipt: “Jackson & Co.’s Express, Portsmouth, June 6, 1874. “ Received of M. Y. B. Stimson, two hundred sixty-two dollars, directed J. A. Bacon, Boston, which the Jackson & Co.’s Express agree to forward and deliver at…

Plea in Abatement, setting forth the writ, declaration, return, and summons, and alleging that the summons is not in the form prescribed by law.

Case, for flowage, reported in 55 N. H. 119, reviewed by the defendant.

Foreign Attachment. The liability of Leavitt as trustee was tried by a jury, who found him chargeable. The defendant Coombs, being arraigned before a magistrate, March 3,1876, recognized in $200, with the trustees as sureties, for his appearance March 7. Leavitt became surety at the request of Mr. Wood, counsel for Coombs, and upon his promise to save him harmless.

Libel, for divorce; cause alleged, extreme cruelty. The case was sent to a referee by order of court. His commission required him, among other things, to report all matters of fact found proved, if either party should request it. He reported, that the evidence failed to sustain the charge of extreme cruelty; that the prayer for divorce should be denied, and the libel dismissed.

Writ op Entry. The defendant pleaded, that, before the plaintiff’s right accrued, he and one C were seized of the demanded premises as-tenants in common; that they moi'tgaged the same to D to secure their joint and several note ; that one half of the xxote was the defendant’s debt, and the other half the debt of C ; that before this suit was brought, D assigned the mortgage and note to the plaintiffs, and the-same is now held by them; that C has been adjudged a bankrupt, and…

Writ oe Entry. Both parties claimed title under one Bailey,— the plaintiff by deed, the defendant by an attachment made (before the plaintiff’s deed) in the suit Plummer v. Bailey, and the levy of an execution assigned by Plummer to the defendant. The plaintiff made several objections to the validity of the levy.

Indictment, for perjury alleged to have been committed by the defendant as a witness on the trial of a criminal case in which one David 13. Story was prosecuted in the police court of Laconia.

Petition, for a highway. Motion to dismiss for defect in notice, given by the clerk’s certified copies, attested and left by the sheriff.

Assumpsit, on the money counts. In the writ, the defendant is summoned to answer to “ the inhabitants of the county of Belknap.” The court refused to quash the writ, and allowed an amendment, describing the plaintiff as the county of Belknap, and the plaintiff excepted. The plaintiff having filed a specification, the court ordered an additional one, and the plaintiff excepted.

Indictment, for murder. The defendant excepted to the ruling that a witness called by the state, whose testimony, given at the magistrate’s examination, had been written by the magistrate and signed by the witness, should not be asked, on cross-examination, by counsel having the written testimony, what that testimony was.

Indictment, upon Gen. St., c. 259, s. 3, for attempting to procure certain persons to commit perjury. The indictment sets forth the testimony which the defendant is accused of attempting to procure, but does not expressly aver that it was material. The facts alleged show that it probably was, but not that it must have been, material.

Libel, for divorce. The cause alleged and proved was the defendant’s actual imprisonment in the state prison, under a sentence for more than a year, for manslaughter. A bill of exceptions, for the reversal of the judgment, is pending. A divorce was decreed, and the defendant excepted.

Trespass. The defendant excepted to the refusal of the judge at the trial term to set aside a verdict for the plaintiff, as being against the evidence.

<p>One who is induced by fraud to give day of payment for goods sold may rescind the contract and bring a suit for the price without first offering to surrender the notes given therefor.</p> <p>An offer to surrender such notes is seasonably made on the trial of the action to recover the price of the goods.</p>

Foreign Attachment. The trustee is executor of the will of Nancy Wiggin. Among other provisions, the will contained one empowering the executor “ to hold, use, and employ, and expend in such manner and at such times as he shall deem proper, for the benefit of G. II.

Trespass, quare clcmsum, reported in 56 N. H. 364. The plaintiff was allowed to amend, by adding a count in trespass de bonis, for the same cause of action, and the defendant excepted. The plaintiff claimed as administrator of Adam Roberts, under a deed made to Adam Roberts by the plaintiff as administrator of William N. Roberts. The plaintiff’s wife was a witness to that deed, and the defendant excepted to the ruling that the deed was not defective on that account.

Writ op Entry, to recover one undivided half of certain lands in Jackson and Chatham. The defendant disclaimed all that part of the demanded premises lying westerly of the present town line of Chat-ham, and pleaded the general issue as to the balance. Facts found by a referee.

Indictment, for obstructing a sheriff in the service of a capias. The court reserved the question of the sufficiency of the indictment.

<p>Foreign Attachment. Issue between the plaintiff and the claimants of funds in the hands of the trustee. The plaintiff’s writ, dated Oct. 18, 1874, and served on the trustee Oct. 20, 1874, was entered in court at the April term, 1875, where it was continued from term to term, until the Oct. term, 1876. At the April term, 1875, leave was granted by the court to take the trustee’s deposition in sixty days. Similar leave was granted at the Oct. term, 1875. At the April term, 1876, the deposition not having been taken, upon motion of the trustee’s counsel the trustee was discharged, but subsequently, at the same term, this order was rescinded, upon the plaintiff’s motion and with the trustee’s consent, and further leave was given to take the trustee’s deposition; and the claimants were then admitted to claim the funds in the trustee’s hands. In support of their claim, they rely upon the following facts: Subsequent to the commencement of this suit, they brought a suit against the same defendant and the same trustee, which was entered in court in Hillsborough county, at the May term, 1875, where it was continued from term to term until the June term, 1876. The trustee appeared by counsel. At the May term, 1875, leave was granted to take the trustee’s deposition in sixty days, and that order was extended from term to term, until the June term, 1876, when the deposition was taken, and the trustee was charged, subject to the judgment in the Merrimack county suit.</p> <p>Upon these facts the court found the trustee chargeable, and that the claimants were not entitled to recover, and ordered a judgment against them for costs, — to which rulings and orders they excepted.</p> <p>Aside from the statute, Davis has no superior equity to Campbell & Hanscom. Upon general principles, the debt of each being equally sacred, the funds, if insufficient to pay both, should be shared pro rata. But here the statute' comes in and says, that the creditor who first attaches the funds, provided he prosecutes his suit to its termination in the manner prescribed by law, shall take the whole fund, to the exclusion of all others, if required for the payment of his debt. His right to this priority is wholly dependent upon his prosecuting his claim to final judgment in the manner prescribed. If he fails to do this, he loses his priority necessarily, and lets in the next attaching creditor. There is no peculiar hardship in this. In one view, it is a hardship that the one first attaching should take the whole ; and if he fails to proceed according to law, there is no equity in departing from the law to pay him in full, when a subsequent creditor, by reason of it, loses his whole debt.</p> <p>If Davis has conformed to the statute, he is first in right. If he has not conformed to the statute in an essential matter, he is not first in right, and this is all there is to it. There is no technicality about it. In one sense, it is a mere technicality that should give him the whole fund merely because his writ happened to be served, it may be, five minutes first. But the true view is, that it is all of statute, and the provision that he shall prosecute his claim in the manner prescribed, is just as substantial as the provision that gives him priority in case his writ is first served and duly prosecuted to final judgment. Now, it was expressly decided in Demeritt v. Estes Trs., 56 N. H. 313, that if the plaintiff fails to take the deposition of the trustee within the time prescribed, and obtains no extension within that time, the trustee cannot be charged.</p> <p>In this case, Davis failed to do either, and the trustee was thereupon discharged, and the trustee after that could by no possibility give Davis any new or further right, to the prejudice of the subsequent attaching creditor. The trustee had no right to decide which of the two attaching creditors he should pay,’to the prejudice of the other.</p> <p>The second order of the court was wrong, and cannot be sustained. At the second term of court, in each cause, both parties stood upon the same footing, and after that Campbell & Hanscom proceeded as required by statute, but Davis did not.</p>

By consent of the parties, the cause was committed to a referee, with an order of court that his report should be final, and that judgment should be entered thereon as of the term at which the cause was thus referred. Upon the return of the referee’s report at the next subsequent trial term, upon the defendants’ motion and against the plaintiff’s objection, the action was brought forward and restored to the docket.

Debt, on a bond, signed by one Dudley, an agent of the plaintiffs, as principal, and by one Moore, the general agent of the plaintiffs, the defendant, and others as sureties. There was evidence tending to show that Dudley, at and prior to the date of the bond, was largely indebted to the plaintiffs.

Assumpsit. The court allowed the plaintiffs, by cross-examination of the defendants and one S. A. M., to show that a conveyance from one of the defendants to S. A. M. was fraudulently made for the purpose of defeating the collection of the claim in suit, and the defendants excepted. Verdict for the plaintiffs, and motion of the defendants for a new trial.

Assumpsit, by a surgeon for professional service performed by him for tbe defendant. In a former suit brought by this defendant against the surgeon for malpractice in the same service, judgment had been rendered on the merits for the surgeon. The question whether the defence of malpractice can be set up by the defendant in this action was reserved.

Assumpsit, for tlie amount of two checks paid by the plaintiffs to the defendant. The checks were drawn by M., on the plaintiffs, in favor of W. & S., who sent them to the plaintiffs by the defendant. The plaintiffs paid their amount to the defendant, who paid it to W. & S. The specification was for money paid by accident and mistake. The mistake was in the plaintiffs’ clerk erroneously supposing that the plaintiffs had funds of M., when, in fact, M.’s account was overdrawn.

Trespass, de bonis, to recover the value of a yoke of oxen taken and sold by the defendant on mesne process against the plaintiff. A horse, attached on the same process, was claimed by the debtor to be exempt from attachment, under Laws of 1871, c. 30, and was released by the officer. There was evidence that another person owned the horse at the time of the attachment. Afterwards, before the oxen were sold, the debtor claimed them as exempt from attachment.

At the October term, 1874, the case, being one in which the parties were entitled to a jury trial, was, on motion of the defendant, and against the plaintiff’s objection, committed by the court to three referees. At the April term, 1875, by an order of court made upon the agreement of the parties, a sole referee was substituted for the three previously appointed. The referee’s report is for the plaintiff.

<p>/- Trover, for communion plate. The court ordered a verdict for the defendants, and the plaintiffs excepted.</p>

<p>An indictment upon Gen. St., c. 264, s. 14, for the benefit of the prosecutor, found more than one year after the act complained of, is barred by the statute of limitations.</p>

Assumpsit, on the common counts, and a special count on a written contract. The plaintiff’s specification, containing two hundred and thirteen items, amounted to more than $35,000. Sixty-four of the items, specially disputed, amounted to more than $7,000. The defendant’s set-off, containing one hundred items, amounted to more than $50,000.

Assumpsit, by C. H. Chase and S. H. Chase, partners, for goods sold. After the sale of the plaintiffs’ goods to the defendant, C. II. Chase and the defendant agreed that f 150 of the price should be paid by the defendant’s allowing that sum in payment of a debt of that amount due to him from C. H. Chase : and that agreement was executed, the defendant acting in good faith.

Assumpsit, against a savings bank for the plaintiff’s deposit, which the bank had been compelled by legal process to pay in satisfaction of judgments rendered in suits (for the plaintiff’s board) in which the plaintiff’s guardian was defendant and the bank was trustee. The guardianship being now revoked, the plaintiff brings this action, and claims that he had no notice of those suits, and that the bank should not have been charged for his money as trustee of his guardian.

Assumpsit, against a married woman, for labor and materials furnished by the plaintiff on a house owned by her in her own right. The defendant and her husband occupied the house, and he employed the plaintiff, and the latter’s servants did the work. While the work was in progress the defendant gave some directions about it, but at no time made any express request to have it done.

Motion of the defendants at the return term of the writ, upon Gen. St., c. 206, s. 10, for the discharge of their bail. When arrested, on affidavit of their concealment of property, they applied, upon s. 9, to two justices, who, after a hearing, refused to discharge them from arrest.

In Equity. The defendants are a religious society, organized under Act of 1819, s. 8. The plaintiffs, only a part of whom are members of the society, desire that the other part may become members, and pray that the defendants be enjoined against using a by-law which requires a two-thirds vote to admit new members. By article thirteen of the by-laws, any person could become a member by signing his name in the books of the society.

Case, reported in 55 N. H. 55. The cause was committed to a referee, with the consent of the parties, under the referee law of 1874, c. 97, s. 18. At a subsequent jury trial, the defendant excepted to the admission of the referee’s report in evidence.

Bill in Equity, to compel the defendant to surrender a deed alleged to have been fraudulently obtained by him from the plaintiffs. The question of fraud was tried by jury, and found for the plaintiffs. In the issue thus tried, the deed was described as dated. May 15,1872. In the bill, it was described as dated Jan. 15, 1873.

Foreign Attachment. The defendant is described in the writ as “ of Charlestown in our county of Sullivan.” The writ was served on the trustee, but not on the defendant. At the first term, the action was continued for notice.

Trover, for chattels attached while in the plaintiff’s possession by the defendant (a deputy sheriff), as the property of H. G. K., and receipted for by the plaintiff, who reserved in the receipt his right to claim and hold the property as his own.

Case, brought by a widow, upon s. 3, c. 3, Laws of 1870. Among other things in the declaration, it is alleged, in substance, that the plaintiff was dependent on her husband for means of support, and that his death, on the 27th day of December, 1875, was caused by his intoxication from the use of liquor unlawfully sold him by the defendant on the first day of January, 1871, and on divers days between that day and his death.

In Equity. The plaintiffs own certain water rights in common with the defendants, and pray that the shares of the respective owners may be set out to them. April 24, 1819, Walcott and Cheney owned all the premises and water privileges of all these parties, and on that day conveyed certain land and water for tanning purposes to Henderson, reserving the other water rights. By this conveyance, the defendants, Hunton and the Ladds, have their title.

Trespass. Yerdict for the plaintiff, and motion of the defendant for a new trial. One question was, whether there was a reasonable passage for logs over or through the plaintiff’s dam. The defendant offered in evidence the opinion of a witness that the sluice for the passage of logs through the dam was not suitable for that purpose, and was not in the proper place.

Review, of the action reported in 51 N. H. 316. There were three fence-viewers. They were all present at the hearing, made the decision, and signed the report; but only two of them took the oath prescribed by Gen. St., c. 128, s. 17. The defendant objected, that for this reason their action was invalid ; but the court overruled the objection, and the defendant excepted. Yerdict for the plaintiff, and motion by the defendant for a new trial.

Bill in Equity (reported in 52 N. H. 209), to foreclose an unrecorded mortgage of shares of a corporation. The plaintiff is mortgagee, and J. M. Hilliard, one of the defendants, is mortgagor. After the mortgage was given, the shares were sold to the defendant, H. S. Hilliard, in the levy of an execution of Jennison & Crane against the mortgagor.

Indictment, upon Gen. St., c. 264, s. 14, for causing tbe death of a person. The question was reserved, whether the fees of witnesses before the grand jury, on whose testimony the indictment was obtained, should be allowed as costs to be paid by the county.

Petition, for leave to appeal from a decree of the probate court removing the petitioner fom the office of executor. The petitioner claimed that he was prevented from appealing within the prescribed time, through mistake, accident, and misfortune. In pursuance of a special order, made with consent of the parties, a referee found the facts upon which the appeal, if granted, would be decided, as well as the facts of the alleged mistake, accident, and misfortune.

Assumpsit, on a promissory note, dated April 15, 1865, executed by one Hayes as principal, and the testator as surety, and payable to the plaintiff. The writ was dated August 28, 1874. Plea, the general issue, with a brief statement that the plaintiff’s action did not accrue within six years before the commencement of the same. The will was proved, and the grant of administration taken on the first Tuesday of May, 1871.

<p>A promissory note, referred to in a deposition, and marked and sent with it to court by the magistrate who wrote the deposition, though not attached to it, may be read in evidence.</p> <p>The overruling, by the presiding judge, of an objection to evidence made by the defendant not until the plaintiff has concluded Ms evidence and rested Ms case, is no ground for exception.</p> <p>A verdict will not be set aside because a deposition, from which certain words in the reading had been excluded, was taken by the jury to their room through inadvertence, and without the knowledge of counsel.</p>

Trover, for corn. The plaintiffs hold a bill of lading, issued at G-oodland, Ind., Dec. 12, 1874, by the P. O. & St. L. R. Co., of the corn consigned to N. B. Haynes & Co., Enfield, N. H. Under the consignment was written, “ Notify Wyman Pattee, care N. D. Line.” Dec. 22, 1874, while the corn was on its way to Enfield, Haynes & Co. borrowed of the plaintiffs $1,305 — the value of the corn after deducting freight charges — on their draft drawn on Pattee for that amount, and…

Case, against a sheriff for the refusal of his deputy to levy an execution of the plaintiff upon property attached by the deputy. Plea, the general issue and the statute of limitations. Facts found by the court.

Assumpsit, for relief furnished a pauper in 1873. Facts found by a referee. The pauper had a settlement in Deering in 1857. After 1860, he lived four successive years on a farm in Weare, of which he had a life lease ; and his life estate was worth more than $150. He withheld his lease from record for the purpose of defrauding his creditors. The farm (including the whole title) was taxed to the lessor, who lived on it with the lessee.

Debt, upon an award. The declaration alleged that the defendant executed Her bond to the plaintiff, which contained a condition reciting that the parties are owners of adjoining lots on Elm street in Manchester; that the plaintiff has erected a new wall upon the east half of Ms lot, in which the defendant desires to insert timbers for a new building which she is about to erect, and have a right of support therein; that for the proper accommodation of said JnñMliig it will…

Appeal, from the probate of a will. One issue tried was, whether the testator was induced to make the will by undue influence. The court gave the .jury general instructions on the subject, substantially like those given in Boardman v. Woodman, 47 N. H. 120. The defendants excepted to the refusal to give specific instructions applicable to particular parts of the evidence. Yerdict for the plaintiff, and motion by the defendants for a new trial.

Assumpsit, on the joint promissory note of the defendant John W. Chase, Cyrus E. Wood, and Moses E. Currier, for $551.84, dated July 6, 1861, and given to the plaintiffs for a part of their ministerial fund. The writ was dated August 14, 1876. Wood was defaulted, and the suit was discontinued as to Currier. Chase defended, and pleaded the statute of limitations.

Case, for negligence, causing water to flow from the defendants’ sewer through the plaintiff’s drain into his cellar. The drain was connected- with the sewer by license of the defendants. An ordinance of the city required that private drains should be provided with a gate to prevent the flow of water through them from the public sewer.

Debt, to recover a penalty. The action was returnable to the police court of Manchester, under the provisions of c. 21, Acts of 1876. The ad damnum exceeding $13.33, the defendants on the return day demanded in writing a jury trial, and the action was thereupon transferred to this court. Within the first four days of the first term the defendants filed a plea in abatement, alleging that no summons in the form prescribed by law had been served upon them.

<p>When an infant under guardianship is sued, the process should be served upon his guardian.</p>

Assumpsit, for not accepting lumber. Verdict for the plaintiff: motion of the defendant for a new trial. As evidence of the memorandum required by the statute of frauds, tho plaintiff introduced, subject to exception, a letter written' and signed by the defendant, a memorandum written by the defendant, and a letter written and signed by the plaintiff.

<p>Assumpsit, on a promissory note, signed by selectmen for the town. B., one of the selectmen, sold to the plaintiff state notes belonging to the town, and received full payment therefor. He had no authority by vote of the town to make such sale, and there was no evidence of the receipt by the town of the avails of the sale, unless it may be inferred from subsequent transactions. Afterwards, all the selectmen, acting as an official board, repurchased the same notes, giving therefor the note in suit, although not authorized by vote of the town to do so. The avails of the notes thus purchased were received by the town. The defendants objected to the plaintiff’s recovery upon these facts, claiming that it was incumbent upon him to show either that the money paid by him for the notes purchased of the selectman was actually applied for legitimate town purposes, or that the sale of the notes to him was authorized or ratified by the town.</p>

In Equity. The plaintiff, James S. Wiggin, and the defendant, Ann M. Wiggin, are brother and sister, children of Hetta Wiggin. In 1834, one Hilton conveyed to the plaintiff a lot of land upon which Hetta moved about the time of the conveyance, and which she occupied until her death. In 1842, the plaintiff executed and delivered to Hetta a life lease of the premises. The lease was recorded. In 1846 he executed a deed of the premises to her.

Trover, for certain chattels, tried upon the general issue. ' The defendant executed a sealed bill of sale of the property to J. Y. & Co., given, as the jury found, as security for a debt due them for liquors illegally sold. Subsequently, the plaintiffs, in good faith, in payment of a debt due them, took a bill of sale of the same property from J. Y. & Co., having no notice of any defect in their vendor’s title.

<p>Complaint, under Gen. St., c. 255, s. 9, for exposing merchandise for sale, at Epping, in a booth within four rods of Hedding Camp-Meeting. The question of the constitutionality of the statute, and the question whether the complaint should allege that the meeting or its worship was disturbed by the defendant’s business, were raised by demurrer.</p> <p>cited Bill of Rights, arts. 2, 10, and 12 ; L. S. Association v. C. C. Co., 1 Abb. U. S. 388 ; Foster v. New Orleams, 94 U. S. 246.</p>

Replevin, for 15,000 hard bricks. Pleas, the general issue, and a denial of the plaintiff’s title.

Trespass, guare clausum. Tlie close is a lane in Derry, about forty rods long and two rods wide, and tlie plaintiff claimed title to tlxe whole, and that the dividing line between his land and the defendant’s was the east line of the lane. The defendant claimed title to the east half of the lane; that the lane was a private way by prescription, appurtenant to 1ns land; and that it was a public highway by prescription.

Assumpsit, on a policy of insurance against fire. Facts found by a referee. The plaintiff bad an estate for the life of another in the buildings insured, but, contrary to the provisions of tlie policy requiring an accurate statement of title, the interest of the plaintiff was described as entire ownership o£ tlie property. There was no fraud in making the statement, and tlio defendants’ agent knew tlie actual state of the title.

Bill in Equity, for relief under s. 2, c. 7, Laws of 1872. The bill alleges the death of Thomas Webster, the appointment of the defendant as administrator, the indebtedness of the deceased to the plaintiff, and a failure to prosecute her claim within three years from the date of administration, without culpable neglect, and through t-lie mistaken belief that she was the widow of the deceased.

Assumpsit, for $75, the price of two cows sold by the plaintiff to the defendant on Sunday. Fifteen days after the sale, the plaintiff took the cows from the defendant, claiming that the title was not to pass until the price was paid.

Debt, on an account stated. The parties, having been partners, dissolved the partnership and divided the property; the defendant conveyed his interest in the debts due the firm to the plaintiff, and the plaintiff agreed to pay the debts owed by the firm ; an account was made by a clerk, showing that, on a settlement of the partnership business, there would be due from the defendant to the plaintiff a balance of $302.66 ; and there was evidence tending to show that both…

Case, for killing the plaintiff’s colts by the defendants’ locomotive. The defendants operate the Nashua & Rochester Railroad, which crosses the plaintiff’s farm. On the day of the accident the plaintiff’s colts escaped from his field into his pasture adjoining the railroad, and from the pasture passed on to the railroad through the bars at a farm crossing, and were killed by a passing train.

<p>The finding of the facts upon which a motion for an amendment is decided at the trial term is not subject to exception.</p>

<p>Selectmen are agents of the town when no other agents are chosen.</p> <p>An unqualified offer by the selectmen to pay for damages from a defective highway is competent but not conclusive evidence upon the question of the liability of the town.</p>

Assumpsit, for breach of contract for sawing lumber. The declaration contained three special counts.

The defendant’s book account continued with Morton till Nov. 2, 1869, when they settled it, and the defendant was owing Morton a balance. The defendant claimed that the mortgage was made to secure future advances to the amount of $506.71, and was therefore, in part, invalid. The court charged otherwise, and the defendant excepted. Yerdict for the plaintiff.

<p>Indictment, for being an accessory before the fact to the murder of H. committed by C. Before this indictment was found, the defendant had been acquitted on another indictment charging him as principal in the same murder. Without requiring him to plead, the court reserved the question, whether, having been acquitted as a principal, he can be convicted as an accessory.</p>

Trespass, against a deputy sheriff, for attaching’ a stock of boots and shoes, as the property of Gilbert Brothers.

Libel, for divorce. Cause assigned, the willing absence of the husband from the wife for three years together, without making suitable provision for her support. The libellant, previous to her marriage, lived with her parents in this state. At the time of their separation, the parties lived in Canada. In July, 1871, the libellant procured money from her father and returned to this state, where she has since lived.

Petition, for the assessment of damages, under the provisions of c. 20, Laws of 1868. The committee to whom the petition was referred reported that the plaintiffs’ mill is of public benefit, and that their dam was erected with the permission, by parol, of the defendant, upon Ms land, and has since been maintained with his consent, except so far. as he has, from time to time, objected to the plaintiffs’ right to use it, and to the use made of it, to flow his land.

Indictment, for fraudulently concealing personal óptate to the value of one hundred dollars, contrary to the provisions of Gen. St., c. 257, s. 2, on the twenty-third day of February, 1877. The defendant appeared specially, and pleaded that in proceedings begun in the U. S. District Court after the time of the alleged concealment he was adjudged a bankrupt, &c. The court reserved the question whether the state court has jurisdiction.

Trover, for a sled and a wagon. Facts found by tbe court. The sled and wagon were attached as the property of the plaintiff, I)oc. 4, 1876, by tlie defendant, as a deputy sheriff, on a writ against the plaintiff. The plaintiff claimed that tlie sled and wagon were exempt from attachment, as tools of his occupation. The plaintiff was a shoemaker ky trade, and owned ten dollars’ worth of shoemakers’ tools, and also worked at farming.

<p>Debt, on a judgment, recovered by the plaintiff against the defendant and the deceased, as copartners, January 19, 1867, in the fifth district court of New Orleans, for a sum certain and interest on the same from November 1, 1862. It is also alleged that the court had jurisdiction of the cause, and profert, by copy, is made of the record. The second and fourth counts allege the date of recovery to have been January 24, 1867. The third and fourth counts allege-that Josejih S. Abbot was duly summoned to appear and answer to the cause.</p> <p>The defendant appears and prays oyer of the record proffered, and demurs, because (1) it does not appear that the fifth district court of New Orleans had jurisdiction of the parties, and that (2) the judgment was not for a sum certain.</p>

<p>Indictment (upon Gen. Sts., c. 257, s. 3), for the fraudulent concealment of a wagon, the property of one Hill, “ with intent thereby to prevent the attachment or seizure of the same upon mesne process or execution” against the said Hill. Demurrer.</p>

Trover, for a watch. Facts found by a referee. The watch was the property of tfie plaintiff, and for the purpose of enabling one Ward, who was a cripple, in debt, and without means, to make a profit in trading watches, the plaintiff let Ward have the watch, and another, at prices agreed upon, on condition that they should remain the plaintiff’s till paid for. It also appeared, that if Ward sold the watches he was to pay the plaintiff for them promptly.

<p>Writ ok Entry, on a mortgage. Facts found by a referee. The demanded premises were mortgaged to Edward P. Kimball, June 17, 1871, and by the defendant, Baker, subject to the Kimball mortgage, to Wm. P. Chamberlain, January 11, 1872. These mortgages were recorded at their dates. July 2, 1872, Baker borrowed $800 of the plaintiff upon his note, under a promise that he should have a first mortgage of the premises as security. The plaintiff had no knowledge or notice of the existence of the Chamberlain mortgage until this suit was brought. With the money borrowed of the plaintiff Baker paid the Kimball mortgage, July 8,1872, and Kimball signed a discharge upon it, which was recorded July 12,1872, and September 12, 1872, Baker executed and delivered to the plaintiff a mortgage of the premises to secure the $800 borrowed of him, and which Baker supposed would take the place of the Kimball mortgage, and have precedence of the Chamberlain mortgage.</p> <p>The defendants, Burnap and Taft, without knowledge of the arrangement between the plaintiff and Baker, and having learned from Kimball that his mortgage was paid and discharged, and from their agents employed to examine the records that the Chamberlain mortgage was first on the property, took an assignment of it June 9, 1874, which was recorded July 3,1874. Both parties claimed judgment.</p>

Assumpsit, to recover for over-payment to tlie defendant for liis services as selectman of Bindge. Held: that, in view of the evidence of the plaintiffs, which was conceded by the defendant to be true, the evidence offered by the latter would be no defence to the action, and excluded it, and the defendant excepted. A verdict for the plaintiffs for $33.25 was thereupon taken by consent, subject to the opinion of the whole court.

Assumpsit, to recover the fees of fence-viewers. This is the same case as that reported cmte, p. 43. The fence-viewers, on a petition to them, alleging that the adjoining lands of the parties were improved, heard evidence, and so decided, and divided the fence, assigning to each owner his portion to build and maintain.

Assumpsit, for a breach of warranty of soundness in a horse. The evidence of unsoundness was, that the horse had corns in his feet. The defendant contended, that, as matter of law, corns did not constitute unsoundness. The court declined so to instruct the jury, and the defendant excepted.

Libel, for divorce. The libellant always resided in Newport until 1867, when he went to Washington, D. 0., where he was employed by the government until the spring of 1877, when he returned to Newport, and has since resided with his father there. He has every year, with one exception, voted in Newport, and never voted elsewhere, and has always paid a poll tax in that town. He married the libellee in 1873, in Washington, where she was residing with her parents.

• Case, for injuries on a highway. The plaintiff, seventy years of age and partially blind, was travelling with his son, twenty-six years of age, in an open buggy, drawn by a safe horse, the son driving, and qualified to drive by the usual experience of farmers of that age. The night was very dark, and they had no light. The alleged defect consisted of a narrow place made by a ledge on each side of the travelled path.

Appeal, from the decree of the probate court appointing the defendant administrator de bonis non, with the will annexed, of Walter Mercer, deceased. The testator died in 1864, appointing Israel Hall his executor, and John Mercer residuary legatee. Hall renounced the trust, and John Mercer was appointed administrator with the will annexed, giving bond to pay funeral charges, debts, and legacies.

Foreign Attachment. The trustee was an attorney, and, as such, made and indorsed the plaintiff’s writ, and entered the action in court. There were funds of the principal defendant in the hands of the trustee. After the entry of the action the trustee withdrew his appearance as attorney of the plaintiff, and other counsel appeared. The principal defendant moved that the trustee be discharged. The court denied the motion, and the defendant excepted.

Assumpsit, for spirituous liquors, alleged to have been sold by the plaintiff to the defendants, on May 6 and 11, 1876. The plaintiff, when the sales were made, was licensed to sell spirituous liquors in Massachusetts. One James W. Fife was duly appointed agent of the defendant town for the purchase and sale of spirituous liquors in said town, to be purchased according to the laws of this state. The appointment was duly recorded.

Petition, alleging that a bridge in Pittsburg has been rebuilt by the plaintiff's at great expense, that the whole expense of rebuilding and keeping it in repair is excessively burdensome to the plaintiffs, and that the defendants are greatly benefited thereby. The plaintiffs ask that the defendants may be ordered to pay a portion of such expense. The defendants demurred.

Complaint, for bastardy; tried by the court. The defendant excepted generally to the admission of evidence showing that the plaintiff, in the time of her travail, made to the persons attending her the declaration required by Rev. Sts., c. 68, s. 4, to render her a competent witness.

Trover, for a horse. Plea, the general issue. In 1869, the plaintiff was in the possession of a farm, taking its rents and profits ; and in the spring of that year, and in the spring of each of the two following years, rented the same to one Gray. He furnished all the seed and the team, and had three fourths of the products. The plaintiff had one fourth of the products, the hay being spent on the farm. Both parties had stock, and Gray had a horse among his.

<p>Bill in Equity, to restrain the defendants from selling certain mortgaged furniture. The plaintiff claims under a mortgage executed October 20, 1872, and recorded March 31, 1873. The defendants claim under a mortgage from the same person, executed and recorded January 2,1873. The mortgagor was the plaintiff’s father, and the owner of the Sumner house. The plaintiff claimed that he kept the house, boarding his parents, and that, by virtue of his arrangement in regard to the house, there was such delivery of the mortgaged property to him as would dispense with the necessity of a record. But the court found otherwise, and the plaintiff excepted.</p> <p>B. A. Taylor, one of the selectmen of Dalton, testified, that at the time the mortgage to the defendants was given he had no knowledge of any change of possession in the house or furniture from the mortgagor to the plaintiff, but took the mortgage in good faith. Ewen, one of the defendants, testified, that at the time the defendants’ mortgage was executed the mortgagor said the property was free from incumbrance. The above testimony was received only as bearing upon the question of notice, as evidence that the mortgagor made the statement, not that he stated the truth. The plaintiff excepted to the testimony.</p> <p>The defendants’ mortgage was given to Ewen and the town of Dalton to secure a uote payable to Ewen as collector of the town, and a note payable to the town ; also, to indemnify the town from loss by reason of having endorsed a certain other note for the mortgagor. The oath was taken and subscribed by the mortgagor, by Ewen, and by Taylor as one of the selectmen of Dalton, and was in the ordinary form, viz., that the “ mortgage was made for the purpose of securing the debt specified in the condition,” &c.</p> <p>The court held the mortgage valid to secure the note payable to Ewen and the note payable to the town, and dismissed the bill, — to which the plaintiff excepted.</p>

Writ op Entry, on a mortgage of a farm, made by the defendant to the plaintiff. The defendant bought the farm of the plaintiff. At the time of the purchase the defendant was, and ever since has been, a married woman. When the plaintiff conveyed the farm to her, July 30, 1875, she gave him her note for $4,250, part of the price, and the mortgage to secure the note. The court reserved the question, whether the action can be maintained.

<p>In Equity. Pacts found, and questions reserved by the court.</p>

Foreign Attachment. The court reserved the question, whether the county is chargeable as trustee for juror’s fees due the defendant.

<p>A building used partly as a dormitory and students’ boarding-house, and partly as a public house, is not exempted from taxation, under a provision that “ all lands, tenements, and personal estate, that shall be given to the trustees for the use of the academy, shall be and hereby are forever exempted from all taxes whatsoever.”</p>

Replevin, for a stock of goods. The plaintiffs, having a mortgage of a stock of goods, which, by their permission, the mortgagors had been selling in the usual course of business, without any accounting, with tlie mortgagors’ consent, took possession of the goods with other goods of the mortgagors not mortgaged, and made an agreement with one of the mortgagors that ho should sell the goods and pay the proceeds to the plaintiffs.

Assumpsit, for goods sold and delivered. H. owed the plaintiff a balance of $100 on a bill of lumber. The defendant owed H. more than that sum for labor.

Appeal, by land-owners, from tlio decision of the mayor and aider-men of Portsmouth altering a highway, and from the assessment of damages. The appellants allege that no legal notice of the hearing was given to them, and pray that the decision, for that reason and because of other material defects, may be reversed. The original petitioners object that they had no notice of the appeal. Questions of law reserved.

Assumpsit. The defendant pleaded in abatement, enrolling the summons. The plaintiff moved to reject the plea, because the defendant did not bring the summons into court with the plea, and put the same on file. Motion granted, and the defendant excepted.

Assumpsit, to recover a balance due for merchandise sold and delivered by the plaintiff to the defendants. The quantity, quality, and price were in dispute. The evidence was conflicting whether the defendants tendered and the plaintiff accepted $18, in full payment for all the goods not previously paid for.

Motion, for an attachment for contempt in refusing to testify before the grand jury. The respondent testified that he was clerk for one Goodwin. He was then asked whether, as such clerk, he had sold spirituous or intoxicating liquors, and whether Goodwin sold or kept the same for sale. He declined to answer, on the ground that his evidence might tend to criminate himself. The solicitor reported the facts to the court, and moved for an attachment.

<p>Petition, for abatement of a tax.</p>

Trespass, for breaking and entering the plaintiff’s house. The defendant justified as a deputy sheriff, executing a search-warrant.

Assumpsit. A demurrer to a plea of bankruptcy proceedings raised the question, whether the plaintiff, having proved against the defendant, in bankruptcy proceedings, a claim dischargeable in bankruptcy, can maintain this action afterwards brought upon the same claim, the defendant’s discharge not having been refused, and the bankruptcy proceedings not having been determined without a discharge.

Process, under the statute of landlord and tenant. Facts found by a referee. The defendant occupied a store of the plaintiff’s as a tenant at will. He paid, as rent, sixteen dollars per month, from Oct. 1, 1875, to Feb. 1, 1876. April 1, 1876, the plaintiff demanded, as rent, one dollar per day for the months of February and March preceding, which the defendant refused to pay ; and on that day the plaintiff gave the defendant notice to quit, April 12, 1876.

Probate Appeals. Pacts found by a referee. Eliza H. Drew, a widow, died intestate, leaving five children, namely, Gerrish P., the eldest, Lois A., Sarah J., Harrison, and Thomas P. Lois A. was married, and Harrison was non compos mentis. John McDaniel was appointed administrator, on the petition of Sarah, presented within thirty days of the death of the intestate, for the appointment of herself or some suitable person.

Case, for injuries from a defective highway. The plaintiff was a physician and surgeon; and the defendants offered evidence tending to show that the plaintiff’s injuries were aggravated and his recovery delayed by unskilful and improper treatment on the part of the physician and surgeon employed to attend him, and requested the court to instruct the jury, that the plaintiff, being himself a physician and surgeon, if the injuries were aggravated, or the plaintiff’s recovery…

Assumpsit, to recover a balance due for drawing timber. The defendants pleaded a discharge in bankruptcy; to which the plaintiff replied that he had an attachment, made more than four months prior to the commencement of bankruptcy proceedings. Facts found by a referee, appointed by the court, with the consent of parties, under the act of 1876.

Assumpsit, on a note given for the price of goods sold by the plaintiff to the defendant. The goods were the stock and fixtures of a restaurant. The plaintiff had, in the restaurant, intoxicating liquors, which he either sold or gave to the defendant at the time of the sale of the other goods.

Indictment, under Gen. St., c. 261, s. 4, alleging the breaking and entering the house of A, and the larceny of certain pieces of coin and jewelry, as the property of A and B. A and B were husband and wife. B, at the time of the entry, was absent on a visit. The property stolen belonged to A and B in severalty. It was kept in a small box, made by A, in which was kept his own and B’s papers and keepsakes, both having equal access to it.

Bell in Equity, for the redemption of mortgaged land. Facts found by a referee. The defendants gave B. their note for $4,000, part of the price of land conveyed by B. to H., and H. gave the defendants a bond of $4,000, to be void if H. should expend $40,000 in building a hotel upon the land within a certain time, and a mortgage of the land to secure the bond. The time expired several years ago, and H. has not performed any considerable part of the condition of the bond.

Assumpsit, for money had and received. The plaintiff, when a minor, bought and received of the defendant certain chattels at an agreed price, in part payment of a debt of $1,100 (money had and received) due him from the defendant. While still a minor he sold the chattels, and is unable to restore them to the defendant. After coming of age, he brought this suit to recover the $1,100.

Case, on the statute of highways, for damage happening to a traveller. Facts agreed. The alleged highway runs from a highway to a railroad depot. It was not laid out in the mode prescribed by statute, and has not been used twenty years for public travel.

Assumpsit, on a note for $250, signed by the defendant, and payable to the plaintiffs’ testator. The defence was want of consideration. The question was, whether the defendant bought of the testator a $250 note against one Hill, and gave the note in suit for the Hill note, or whether he merely assisted the testator in an unsuccessful attempt, made in this defendant’s name, to collect the Hill note.

Writ op Entry. Pacts agreed. The plaintiff was formerly the wife of the defendant. The defendant owning an equity of redemption of a farm on which he lived with the plaintiff and their minor children, in 1875 the plaintiff obtained a judgment divorcing her from him, and giving her the custody of the children and $700 alimony. Since the divorce, the defendant has continued to live on the farm, but the plaintiff and the children have not occupied it nor had a home there.

Trespass, for taking a pair of oxen and a cow. The defendant justified as an officer under process against the plaintiff, who claimed that the property was exempt from attachment or seizure on execution. Facts found by the court. May 23, 1872, one Colby, a deputy sheriff, attached the oxen and cow, on a writ against the plaintiff, who made no claim that they were exempt from attachment, and who procured a receiptor, and they went back into his possession.

Indictment, lor fornication. The defendant was a single man, and the other party to the act a married woman. A motion to qnash was refused, and the defendant excepted.

Writ of Entry, on a mortgage made to secure the defendant’s note, endorsed and delivered with the mortgage, by the payee, to the plaintiff, before maturity, as collateral security. The plaintiff received the note and mortgage in good faith, in the ordinary course of business, and with no notice of any equities between the mortgagee and the defendant.

Assumpsit, on a quantum meruit, for services rendered in part performance oí a special contract to build a meeting-liouse. Facts found by a referee, who awarded the plaintiff the value of his labor. The plaintiff performed the services sued for, under and according to a written contract between the parties. The plaintiff did not abandon the contract, but the defendant, without right, discharged the plaintiff when he had partially performed it.

Case, for wrongfully and injuriously keeping a vicious liorse, which attacked and injured the son and servant of the plaintiff. The evidence was, that the horse was at large, feeding upon the grass between the travelled road and the sidewalk, and kicked the boy, and fractured his thigh bone, while he was passing on the sidewalk, not meddling with the liorse. There was no evidence that the horse was vicious. The defendant moved for a nonsuit.

Assumpsit, to recover a balance due on account. The plaintiff is described in the writ as doing business under the name of Samuel Boyd & Co., and as surviving partner of the firm of Boyd, Corey & Co., composed of himself and. one Thomas Corey, deceased.

Assumpsit, to recover the price of tanning a lot of hides. Facts found by the court. John Davis & Co. were carrying -on the tanning business in Warner prior to September 21,1869, and on that day the plaintiff, having a mortgage of all their personal property, took possession of it on his mortgage.

Bill in Equity, for an injunction to restrain the enforcement of a judgment.

<p>Trover, for the plaintiff’s goods, fraudulently obtained from the possession of the plaintiff’s bailee (the Concord Railroad) by A, on a forged order (purporting to be signed by the plaintiff, and directing the.bailee to deliver the goods to A), and sold by A to the defendant, an innocent purchaser. Plea, the general issue. Verdict ior the plaintiff:</p> <p>The defendant excepted to the admission of the plaintiff’s deposition, because, at the caption, the plaintiff, though requested, did not produce certain papers, to be annexed to the deposition. One of the papers was a letter which he said (in the deposition, on cross-examination) he received from his counsel, and then had in his possession, though not at the place of caption, and would produce for annexation. The deposition is a part of the reserved case.</p> <p>The defendant excepted to the rejection of evidence, that since the suit was brought the bailee paid the plaintiff’s claim, and that the suit is prosecuted for the benefit of the bailee.</p> <p>The letter being in the possession of the plaintiff (Winans v. N. Y. & E. R. R., 21 How. 88, 100) and not being annexed, the deposition was unfinished. The railroad held the goods as bailee, and, by the bailee’s neglect, the goods were lost to the plaintiff. If he had brought this suit against the bailee and recovered the value of the goods, the plaintiff’s claim would have been satisfied as against all the world, and he could not thereafter retake the goods, or sue any third person on account thereof, and the defendant could have given that judgment in evidence in bar of this suit. And where, as in this case, the bailee admitted his liability and avoided suit by payment of the full value, that payment would have the same result and effect as payment of a judgment. The acceptance of the value ended the plaintiff’s interest, and his claim was satisfied as against all the world. No right of action was left him, and he could not retake the property or recover its value again. Whether or not the bailee could follow the property is immaterial here, as, against the bailee, the defendant might interpose a perfectly valid defence, which would be of no effect as against the present plaintiff. The offer of the defendant was substantially to show that the Concord Bailroad had paid the plaintiff for these goods. If they had, the plaintiff’s interest was terminated. Wiimer v. Schlatter, 2 Bawle 366 ; Fox v. N. Liberties, 3 Watts & S. 106; Buc/dand v. Johnson, 15 C. B. 145; Watterman on Trespass 60, n.; Brady v. Whitney, 24 Mich. 154; Smith v. Smith, 50 N. ÍI. 212; Smith v. Smith, 51 N. II. 571.</p>

Indictment, for selling intoxicating liquor. The defendant having-been sentenced to pay a fine and the costs of prosecution, the question was reserved whether the costs should include, double fees for witnesses who came from Massachusetts at the request of the state, and were summoned after their arrival.

Assumpsit. The court reserved the question whether the defendant could be held liable if the facts were that his mother stood in need of relief, the defendant, being of sufficient ability, neglected and refused to maintain her, the plaintiff’s intestate supplied her with necessaries, and there was no actual request of the defendant to furnish them, and no understanding that they might be furnished on his credit, or that he would pay for them.

Assumpsit, for goods sold and delivered in 1875. Facts agreed. The goods were intoxicating liquors. The plaintiff was a licensed liquor dealer of Boston, Mass., and his sales of liquor in Massachusetts were lawful.

<p>A city ordinance is to be proved by evidence addressed to the court, and not to the jury.</p> <p>Amendments in a matter used as evidence in the cause, where they are not of a nature to affect the finding of the jury, may be made after verdict, and judgment then rendered upon the verdict.</p>

Indictment, for embezzlement, containing in one count so much of the language of ss. 7 and 8 of c. 257, Gen. St., that it is uncertain which of those sections the defendant is accused of violating. Motion to quash reserved.

Trover, for a pair of oxen. The defendant justified under the levy of an execution against one Fox, through whom the plaintiff claimed. Facts found by the court. Fox conveyed to the plaintiff a farm, by a recorded deed, and certain personal property, including the oxen, and took in return a bond conditioned for the support of himself and wife during life, and a mortgage on the farm to secure the bond. He was then living on the farm, and has continued to live there since.

<p>The nature and scope of a patented .invention are to be ascertained, not merely from the title given to it in the patent, but from the entire instrument, including the schedule and specification, and all explanatory drawings thereto annexed.</p> <p>One patent may be taken for different improvements in a single machine; and one patent may include two or more machines or improvements, each of which is or may be auxiliary to produce the same general result.</p> <p>The inventor of a machine is entitled to the benefit of all the uses to which it can be put, no matter whether he had conceived the idea of the use or not.</p> <p>An “ improved driving gearing,” included in the specification of a patent granted for an “ improvement in threshing machines,” is protected by the same patent when applied to a sawing machine.</p> <p>A verbal assignment of a patent vests in tbe assignee an equitable right to grant licenses and collect royalties ; and a promissory note given for such license, or in payment for such royalty, is not void for want of consideration.</p> <p>The purchaser from one who owns “ the right to use and vend to others to be used” a patented machine, “for, to, and in the county of M., and in no other places,” acquires, by the purchase of such machine, no right to use it in another county; and the holder of an equitable assignment of the patent may demand and recover of such purchaser the royalty for such use.</p>

Case, for diverting water. The defendants, and those under whom they claim,, constructed an artificial watercourse, or channel, extending from a point on Sugar river, in Claremont, to a point below on tlie same stream, through the premises now owned by the plaintiff, and erected mills, at the point where the artificial channel leaves the natural stream, about 1812, and the water was allowed to flow through that channel unobstructed, until 1871, when the defendants obstructed…

Assumpsit, against the defendant, as endorser of a note payable to S. The plaintiff took the note as part of her distributive share in the estate of S. The defence was a want of consideration.

Assumpsit, for wood. Facts found by a referee. The plaintiff’s husband, having authority as her agent to make sales and delivery of wood, made a contract with the defendant to deliver him the following winter fifty cords of wood, of satisfactory quality, at a price certain, and to pay damage if the contract should not be fulfilled. Sis cords of wood only were delivered, and the defendant was obliged to purchase wood elsewhere at a greater price.

<p>As against an owner of land to whom a tax is assessed, the land may be sold for the tax by the collector, after as well as before the expiration of the lien created by Gen. St., c. 54, s. 13.</p> <p>A tax collector is not liable for an assessment shown by his warrant and list, or any other evidence, to be illegal, nor for any cause whatever, except bis own official misconduct.</p> <p>It is his duty to exhaust his authority in reasonable efforts of collection, without regard to his opinion of the regularity or legality of the assessment.</p> <p>His forbearance, at A’s request, to sell land which his duty requires him to sell for a tax, until the advertised time of sale has passed, is a good consideration for A’s promise to pay him the tax.</p>

Motion, to quash a writ on the ground that the blank was filled by a person not the plaintiff, not an attorney, not a citizen, not of good character, and not authorized by the rules of court to receive or use blank writs.

<p>Where the plaintiffs and other stockholders in an insolvent corporation, supposing themselves to he personally liable for the payment of the corporate indebtedness, join in an agreement with the defendants, who are also stockholders in the same corporation, that the defendants, for the benefit of all the parties to the agreement, shall negotiate for the purchase of the corporation debts, and the defendants effect a purchase of them, paying therefor less than their nominal amount, and subsequently collect them of the corporation, receiving out of the funds of the corporation a sum more than sufficient to pay all their disbursements and expenses, they cannot recover of the plaintiffs any more than the cost of obtaining a discharge of the plaintiffs’ personal liability; and, in equity, all the cost having been paid by the money of the corporation received by the defendants, they have no valid claim against the plaintiffs for indemnity or contribution.</p>

Assumpsit. (See Fogg v. Hoskins, 57 N. H. 484.) Subject to the plaintiff’s exception, the court overruled a motion to amend the declaration by adding four counts, alleging in the first the contract of March 26, 1872, and a breach by the defendant; in the second, the payment of $901 by the plaintiff to the defendant, in consideration of which the defendant promised to pay the Leach mortgage, but failed to do so; in the third, the contract of December 29, 1871, and the…

Assumpsit. The defendant having been adjudged a bankrupt, the plaintiff moved that the action be dismissed without costs.

Mesne Process, upon which property of the defendants was attached. An involuntary petition in bankruptcy was filed against the defendants more than two months and less than four months after the date of the attachment. The plaintiff moved for judgment in rem, and the defendants claimed that the attachment was dissolved by the filing of the petition. The court found, as matter of law, that the attachment was dissolved, and the plaintiff excepted.

Information, in the nature of quo warrcmto, and is the same case reported in 57 N. H. 498.

Trover, for a horse. (Reported in 57 N. H. 618.) The conversion complained of was the sale of the plaintiff’s horse by a collector of taxes, on a tax warrant issued by the defendants and one Hibbard, who was a defendant until his death, which occurred before the last trial had at the February Term, 1877. The present defendants were selectmen defacto and de jure, and Hibbard was a selectman de facto.

Writ op Entry, on a mortgage. Facts agreed. In 1862, the plaintiff being the wife of the defendant, he' made to her a voluntary conveyance of the land.

Foreign Attachment. The trustees disclosed rent due from them to the defendant for the use and occupation of a store. The father and two sons of the defendant were allowed to become parties, as claimants of the fund disclosed by the trustees. Issue between the plaintiff and the claimants. Facts found by the court.

Trover, for a lot of wood. The plaintiff claimed title by purchase from John S. Lamprey. The defendant justified under an attachment against J. S. Lamprey, claiming that the sale to the plaintiff was fraudulent as to creditors. There was no change of possession at or subsequent to the sale. Verdict for the defendant.

<p>In a prosecution for keeping spirituous liquors for sale, evidence is admissible to show that the defendant committed the offence on some other day (within the time prescribed by the statute of limitations) than that alleged in the indictment, and he may be convicted on such evidence.</p> <p>Whether the state’s evidence should be confined to a part of the time prescribed by the statute of limitations, is a question of fact to be determined at the trial term.</p>

In Equity. The plaintiff, John Woodbury, holding the legal title to land in Salem, mortgaged it to John Stowe to secure a note of $3,000, and on the same day conveyed the premises, subject to the mortgage, to G. W. Perkins. Afterward Perkins conveyed to L. Woodbury, subject to the Stowe mortgage and to the payment of certain taxes upon the premises then due.

Assumpsit, for the price of 284 cords of wood sold and delivered. •The plaintiff and one Nutter owning, as tenants in common, the wood on a certain wood lot, the plaintiff sold to the defendants his portion. The whole quantity was cut, and drawn to one of the defendants’ depots, where the greater part of it was divided.

In Equity. The plaintiffs asked for the reformation of a deed. Pacts found by the court: The plaintiffs, by oral agreement, bought a farm of the defendants for $2,500, paid the price, and took the deed of which they seek reformation. A part of the farm containing ten acres, included in the bargain and paid for, was, by the fraud of the defendants, omitted in the deed.

Bill in Equity, to foreclose a mortgage made to the plaintiff’s by Y. M.. the father of the defendants. Facts found by the court. The plaintiff and Y. M., being owners of a tract of land as tenants in common, — the plaintiffs of one half, and Y. M. of the other half,— the plaintiffs sold and conveyed their interest to Y. M., and at the same time, and as part of the same transaction, took from him the mortgage to secure the payment of the price.

<p>If a person acts as an agent without authority, and his acts are ratified, he is entitled to the same compensation and remedy as if he had been duly authorized.</p>

Writ op Entry, to foreclose a mortgage. Plea nul disseizin, and a brief statement that the debt was paid, and if not paid, that the title was in the plaintiff’s assignee in bankruptcy. The mortgage and note were given by the defendant’s intestate to the plaintiff, May 13, 1861. The note and mortgage were pledged to secure a debt due from the plaintiff in 1874, and the plaintiff was adjudged a bankrupt February 22, 1875. The note was not in his schedule of assets.

In Equity. The defendant Bell, March 4, 1870, attached the defendant Lamprey’s land in Londonderry, including the Brewster farm, and March 5, his Welch farm, in Plaistow. Welch had agreed, by parol, to exchange farms with Lamprey. At the time of the attachment, Lamprey had conveyed his farm to Welch, and had possession of the Welch farm, but did not get a deed from Welch until March 22, 1870. He mortgaged the Welch farm to the plaintiff’s assignor, July 29, 1870.

Case, for injuries caused by the fright of the plaintiff’s horse through the negligent management of the defendants’ locomotive engine. The defendants’ track, a short distance from their depot, in the village of Exeter, crosses a public highway at grade.

Complaint, for the removal of a boundary. The defendant removed a stake and stones placed by a committee appointed by the probate court to make partition of land owned in common by the defendant and W. B. The removal of the stake and stones was before the return and acceptance of the committee’s report.

Debt, upon the bond of the defendant as executor of the will of Arabella Rice. The defendant had been defaulted. The plaintiff claimed judgment for the penalty of the bond, and interest thereon from the date of the writ. Upon the hearing in chancery on the forfeiture, twenty legatees under the will appeared and endorsed their names upon the writ, and gave separate bonds with sureties to pay such costs as might be adjudged against them.

<p>Bill in Equity, by the administratrix of John F. T. Corwin, praying for an accounting concerning a partnership formerly existing between said Corwin and the defendant. The defendant pleaded in bar a settlement made between him and said administratrix, and an answer supporting the plea. The cause having been referred to a master, the paper which the defendant had pleaded as a settlement of the partnership affairs was produced in evidence, as follows:</p> <p>Derry, March 1, 1876. H. P. Hood bo’t of Esther Corwin, administratrix, all the interest of the late J. F. T. Corwin in the milk business known under the firm name of Hood & Corwin. Ice-house, cans and tools belonging to the same also, good will of trade, &c. Said Esther Corwin agreeing not to interfere with the business in any way for the sum of $2500. All bills to be settled by said Hood as best he can, and one half the receipts paid over to said Corwin free of charge after outstanding bills are all paid to January 1, 1876. Rec’d payment by note. Esther Corwin, Adm’x.”</p> <p>It appeared that the defendant had paid $750, in cash, on the note given in payment, and had also paid to the plaintiff the sum of $200 on account of unsettled bills previous to January 1, 1876.</p> <p>The plaintiff claimed that the agreement of March 1, 1876, did not bar an account, and was only a sale of the milk-car and certain fixtures, and the good-will of the business. The defendant contended that the agreement between him and the administratrix was a sale of all the personal chattels of the copartnership, and a settlement of all matters up to January 1, 1876 ; and that he could be required to account only for money received and paid out subsequent to that date, with unsettled accounts against third parties, as set forth in his answer.</p>

Assumpsit, on a promissory note. Yerdict for the defendant. The defendant requested the court to instruct the jury that if the note was not the property of the plaintiffs, but was left at the bank for collection, the plaintiffs could not recover, — claiming that the plaintiffs’ books contained entries tending to show that the note was so left.

In Equity. This is the same case reported ante, page 12. By her last will, the testatrix gave the defendant and the plaintiff (whom she appointed executor thereof) each one half of all the income of all her property, real and personal, during the life of the defendant, the property “ to be managed in the same manner as heretofore, without division.” The executor desires to ascertain the legal construction of the will, as to the proper person to collect the rents.

Probate Appeal, from the allowance of the administration account of the defendant, showing a balance due her from the estate. Pacts found by a referee. The plaintiff, appellant, is an heir-at-law of Hollis Perkins, deceased. The defendant is his widow and administratrix.

<p>Case, for causing an officer, who arrested the plaintiff in a suit brought against him by the defendant, to refuse to accept sufficient bail. Verdict for the plaintiff, including 1450, the amount of the plaintiff’s expense of defending the suit in which he was arrested. Motion of the defendant for a new trial.</p>

<p>Indictment, under Gen. St., c. 264, s. 14. Subject to the defend ants’ exception, the court charged that within this statute the directors and the general superintendent of the road were its proprietors, and the persons having charge of the running of the trains were its servants or agents.</p> <p>The deceased was killed when passing the defendants’ road, on a highway crossing, in or near the compact part of a town, by the defendants’ train, while running in violation of Gen. St., c. 148, s. 4, as amended by Laws of 1868, c. 148, s. 42.</p> <p>The court declined to charge that the statute and its violation had no application to the case, but charged that if the defendants were running the train in violation of the statute, it was a fact that the jury might consider, in connection with all the circumstances in the case, upon the question of liability; and the defendants excepted.</p> <p>The deceased left two minor children, who were entitled to any fine that might be imposed, and no guardian had been appointed. Neither the attorney-general nor the solicitor took part in the trial. Yerdict for the state. Motion for a new trial.</p>

Indictment, upon Gen. St., c. 264, s. 14, for negligently killing C. H. J., at a railway crossing. The D. & W. R. R. corporation were, at one time, the proprietors of the railway, and there was no evidence of a transfer of it, by lease, mortgage, or other written contract.

Trespass qu. cl. The alleged acts of trespass were admitted, under claim of right. The plaintiff being in possession of a part of a farm under claim of title, the defendant took possession of the whole farm under a judgment of foreclosure against the plaintiff, and brought a landlord process against him, describing the whole farm in his declaration.

Writ op Entry, for land conveyed to the plaintiffs by William Emerson. Plea, nut disseizin. At the September term, 1877, John W. Currier, assignee in bankruptcy of William, was admitted to defend, and he also pleaded nul disseizin, with a brief statement that the action was not commenced within two years from the time the cause of action occurred.

Assumpsit, on a policy of insurance. The policy contained a condition, that if the assured should make any other insurance on the property without the written consent of the company upon the policy, it should be void. The insurance was obtained by Neal, who, without the defendants’ knowledge or authority, was employed by O. & G-. L., the defendants’ agents at Laconia, to solicit applications for insurance, receive premiums for them, and deliver policies.

Trespass, qu. cl., and for carrying away oats. Facts found by a referee. The plaintiff, by a verbal contract, undertook to carry on his father’s farm, support his father and mother, and have the balance of the proceeds for his pay. With the assistance of his father, brother, and sister, all of whom lived on the farm, it was carried on ; and the proceeds were applied to their common support for seven years, when the father and mother died.

Petition, for the discontinuance of a highway that had not been constructed. The court reserved the question whether an increase of the town’s indebtedness and a decrease of its ability to build and maintain the highway could be a canse of discontinuance.

Assumpsit, on an overdue promissory note, signed by the defendant, payable to John Moulton or order, and by him indorsed and delivered to the plaintiff before suit. The plaintiff paid the amount of the principal of the note as consideration for the transfer; and it was understood that he should have the interest for collecting it, and if he failed to collect it, Moulton would repay him what he had paid.

Bill in Equity, to foreclose a mortgage made, June 1, 1875, by the defendants to the plaintiffs, to secure the payment of money loaned at the same timo by the plaintiffs to Mr. Morrison, as to whom the bill was taken pro confesso. Mrs. Morrison answered, claiming that part of the land was hers, and that, as to that part, her coverture was a defence.

Declaration (upon c. 2, Laws of 1877) of the grounds of the plaintiff’s denial of the defendant’s homestead right. Facts found by a referee. The land was formerly the homestead of the defendant’s husband, owned by him, and occupied by them and their family. The defendant and her minor children left it Sept. 1, 1875. The plaintiff attached it Nov. 10,1875, in a suit brought by him against the husband.

Bill in Equity, for the appointment of a receiver to collect certain moneys due from some of the defendants to the defendant bank, and for an order placing the same to the credit of the depositors therein.

Debt, to recover school money, under Gen. St., c. 77, s. 6, in the name of Union School District No. 1 in Bow, and 23 in Concord.. The defendants were the mayor and aldermen of Concord, from March, 1875, to March, 1877. The plaintiff district was formed in 1850 of disti'ict No. 1 in Bow, and part of No. 18 in Concord, under Laws of 1845, c. 221, s. 2.

Probate Appeal. The following issues were directed by the court: 1. Was the will executed according to law ? 2. Was the testatrix of sound mind ? 3. Was the will executed through fraud or undue influence ? 4. Was the will executed by the testatrix without sufficient knowledge of its contents, and of the estate purporting to be disposed of by it ? The defendant excepted as to the fourth issue.

Action, upon the landlord and tenant act, transferred to this court on pleas of title. The relation of landlord and tenant never existed between the parties. Motion for a nonsuit denied, and the defendant excepted.

Assumpsit, for money paid in support of a pauper at the insane asylum, whose settlement was claimed to be in Jaffrey. Facts found by a referee. The pauper was committed to the asylum as a person dangerously insane, on petition of the selectmen of Pembroke where she then was, by the order of the judge of probate of Merrimack county, without notice to any person. She had no relations of sufficient ability to support her, and no settlement in any town unless it was in Jaffrey.

Assumpsit on a note, dated Oct. 81, 1872, and payable to the plaintiff or order, on demand. Facts agreed. Jan. 6, 1878, the plaintiff delivered the note to the City Bank, as collateral security for a note given by the plaintiff to the bank for money then loaned to him by the bank.

Case, for damage happening to a traveller by reason of a defect in a highway.

Petition, for an increase of damages for land taken for a highway. Upon a petition, the mayor and aldermen of Manchester laid out a highway known as Walker street.

Motion, by D. and Q., for leave to appear and prosecute an appeal from a probate decree allowing a will. Facts found by a referee. D. and Q. were entitled to appeal, and were applied to to join the appellants in the appeal, but declined in consequence of an agreement by the executor to pay them a certain sum in money and convey to them certain other property.

Assumpsit. Facts found by a referee. The defendant is a widow. After her husband’s death, the plaintiffs brought a suit against her for goods sold to her after her husband’s death, and for goods sold her husband. That suit was entered in court and continued several terms, and while pending was settled, and entered “neither party,” upon the defendant’s promise to pay a sum certain, for the recovery of which this suit is brought.

Case, for injuries on a highway. The plaintiff occupied a cellar as tenant on Spruce street in Manchester. The entrance to the cellar extended into the sidewalk, and was a nuisance. The entrance existed when the plaintiff leased the cellar; but he, under the direction and as the servant of the landlord, put in new stairs, and placed a plank at the top to stop the water.

Trover, for a soda fountain. The plaintiff’s evidence tended to prove that the fountain was owned by Wallace Bently; that Jan. 26, 1876, it was in the possession of A. W. Stowe, and Bently sold it to the plaintiff; that A. W. Stowe was present at the sale, and Bently told him to deliver the fountain to the plaintiff when he might call for it; that it remained in A. W. Stowe’s possession till Feb. 19,1876, when the defendant, an officer, attached it as the property of Bently,…

Debt, to recover a penalty for violating the regulations of the plaintiffs’ health officers, forbidding the maintenance of a nuisance. At the annual meeting of the town no health officers were chosen; and in July of the same year, the selectmen, on the ground that the office was vacant, appointed a board of three health officers, who made and published regulations for the health of the public.

Bill in Equity, alleging that the plaintiffs, and all the defendants except Stark, had been copartners, and that Jones, who was manager of the firm business, had combined with Stark in certain transactions to defraud the firm, and praying that Stark be compelled to account. Stark answered, denying the allegations of the bill, and moved to dismiss it as to himself. Reserved.

Writ or Entry. Facts found by a referee. The plaintiff’s title is a deed from G-. T., dated Sept. 1, 1878, and recorded Jan. 5, 1874. The land was sold April 4, 1874, to the defendant by the tax-collector, for non-resident taxes assessed in 1878. The defendant’s deed is dated April 5, 1875, and recorded June 7, 1875. The plaintiff’s grantor owned the land when the tax was assessed.

<p>A reserved power of amending and repealing the charter of a corporation is a legislative power.</p> <p>The foreclosure of a mortgage is not an exercise of legislative power.</p>

Scire Facias, sued out by Mary A. Dorr, under Gen. St., c. 187, s. 12, on a judgment recovered in the name of the judge of probate for the penalty of a bond given, in 1865, by Jackson (the other defendants being sureties), for the performance of his duties as trustee under the will of Henry W. Dorr. In 1875 Jackson was removed, and Lord was appointed trustee in his place. In 1876 Lord caused the suit to be brought in which the judgment was rendered.

Assumpsit, on a joint and several note, signed by the defendants, payable to the order of the Cheshire National Bank of Keene, ninety days after date, and indorsed by the bank by its cashier, without recoui’se. Waddell was defaulted, and the suit proceeded against the other defendants. The plaintiff took the note after it became due. Kittridge and Aldrich, the other defendants, were sureties on the note.

Trespass, for an assault in forcibly removing the plaintiff from a pew in a meeting-house. The meeting-house was erected by the town of Rindge about the year 1791.

Trespass, for taking and selling property. Facts found by the court. The defendant justified the taking and sale as a deputy sheriff, by virtue of an execution in favor of one S. against Thayer & Well-man. The plaintiff claimed title to the property under a mortgage from Wellman, duly executed, and recorded January 10,1876, to secure a note to the plaintiff dated July 1, 1875.

Assumpsit, for services of an attoi’ney, against the defendant as administrator de bonis non. The defendant was appointed administrator after the death of the executor, who had employed the plaintiff to defend suits brought against the executor in his official capacity ; and the plaintiff’s services were rendered in defending those suits in the lifetime of the executor.

Case, for damage happening by reason of a defect in a highway. It was alleged in the declaration that the highway was sloping, rounding, uneven, encumbered by a snow-drift, and unsafe; that one B. was travelling in the highway, driving two horses that were drawing a sled loaded with bark; and that, by reason of the defect, the sled was overturned, the horses were frightened, escaped, and ran without guidance against the plaintiff, who was travelling in the highway.

Assumpsit, on a policy of insurance. Plea, the general issue. The action was not commenced within twelve months next after the loss occurred.

Case, for flowing the plaintiff’s land. Besides the issue whether any part of the plaintiff’s land was flowed, the boundary line on that part where the fiowage was claimed was in dispute.

<p>Specific performance of an antenuptial ageement for the use of land may be-enforced in favor of a husband against his wife.</p> <p>An injunction may be an appropriate method of enforcing specific performance.</p>

Indictment of Mrs. Hill, upon Gen. St., o. 256, s. 8, for being privately delivered, of a bastard child, and endeavoring privately to conceal its death and the cause thereof; and of Mr. Blake as an accessory. The defendants lived together, but were not married.

Assumpsit, to recover one half of referees’ fees paid by the plaintiff. Held: possessed, and enjoyed by the Church in their united capacity,” all members enjoying equal rights in the use of the property, according to their several needs and circumstances. At the time of the submission, Dyer and Bradford were the trustees. When this suit was brought, Baker had been appointed in place of Dyer.

<p>Case, for slanderous words spoken of Mrs. Harris by Mrs. Webster. The defendants demurred.</p>

Case, upon Gen. St., c. 84, ss. 12 and 15, to recover damages paid for property destroyed by the defendants in a riot.

Case, against a sheriff for a false return made by K., one of his deputies.

Assumpsit, for use and occupation of land. Facts found by a referee. The plaintiff verbally made a bargain with the defendant to sell him his farm, in the spring of 1875, for $800 and the payment of the taxes for that year. Two hundred dollars was to be paid by the next July, when a deed was to be given.

<p>Before the passage of c. 32 of Laws of 1876, a married woman could make a valid mortgage of her separate estate to secure the payment of a debt of her husband.</p> <p>An error in the name of a former owner of the land does not render a deed void for uncertainty, when sufficient remains to designate the premises intended to he conveyed after rej ecting the erroneous description.</p> <p>In the absence of fraud, a deed cannot be avoided by showing that the grantor executed it in ignorance of its contents.</p> <p>In a foreclosure of mortgage by peaceable entry, the record of the affidavits of the party and witnesses, and of the published notice, as provided in Gen. St., c. 122, s. 16, is not a part of the process of foreclosure, but only a mode of preserving the evidence of it.</p> <p>The remedy of a party aggrieved by the judgment of a magistrate, after the time for appeal has elapsed, is by a petition for a new trial.</p>

Petition, for removal of cause to U. S. circuit court. The defendants are a corporation, incorporated and having their home office in Pennsylvania, and authorized to do business under the laws of this state; and this action is founded upon a policy of insurance issued on an application taken by the defendants’ agent, resident and doing business in this state.

Trover, for property attached by the defendant, as a deputy sheriff, which the plaintiff claimed as exempted from attachment. The defendant, having been arrested and held to bail upon the writ, at the return term moved that his bail be discharged, and that he be discharged from arrest. The court denied the motion, and the defendant excepted.

Assumpsit, “ for labor performed by the plaintiff for the defendant, at his request.” The defendant was defaulted. The question reserved is, whether, as against the claimants, the plaintiff has a lien on certain logs for all or any part of his labor. Pacts found by a referee.

Trover, for fifteen tons of hay. The plaintiff’s title was a mortgage from one Gray to secure a note for $400. The plaintiff testified that the mortgage was given to secure a note for $400, which was given as security for the plaintiff’s signing two other notes for Gray, neither of which had been paid by the plaintiff when the mortgage was given.

Assumpsit, on a note given for part, of tlie price of wild land conveyed by the plaintiff to the defendant. Plea, the general issue. The deed described the land as Lots 1 and 2 in the 12th Range in Columbia ; and the price was $1100.

Case, for deceit in the sale of apples delivered to the plaintiffs at depot in Exeter, and by them shipped to Canada. On the question of damages, the jury, against the defendants’ objection, were instructed that they might consider the loss directly resulting from the inferior quality of the apples, and all expense, trouble, and annoyance, which were the necessary consequence of the fraud practised by the defendants. Verdict for the plaintiff, and motion for a new trial.

pi Assumpsit, on the defendant’s note for $150, dated January, 1868, payable to the plaintiff. The defendant excepted to the admission of the note in evidence because it was not stamped. Verdict for the plaintiff. Motion for a new trial.

Foreign Attachment. Issue between the plaintiff and a claimant of a fund in the hands of the trustee. Two questions of fact were submitted to the jury, and answered by them in the negative, — first, whether the defendant owed the claimant a certain debt; and, second, whether the defendant had assigned the fund to the claimant, before it was attached, for the purpose of making a payment.

Assumpsit. Plea, the general issue. Pacts found by a referee. The suit is upon the following note: “ Por value received I promise to pay Charles Richey, or bearer, thirty dollars on or before the first day of May next, with interest annually. [Signed] “William Horn.” The note was dated, given for value, and indorsed to the plaintiff’s intestate, before it was due.

Assumpsit, on an award. The plaintiff offered to prove that the submission was of a claim for damages for a defective highway, signed by the plaintiff and two of the selectmen of Dummer; that counsel employed by the selectmen appeared with the selectmen before the arbitrators, and the cause was heard, and that no objection was made to the submission before the award.

Case, against the owners of a brig, for damage done to the plaintiffs’ schooner by a collision caused by the negligent handling of the brig. The brig sailed into the Piscataqua, with a pilot on board, cast anchor, dragged her anchor by force of the ebb-tide, and drifted against the schooner which was fastened to a wharf. The court instructed the jury that the presence of the pilot did not relieve the defendants from liability ; and the defendants excepted.

Indictment, upon Gen. St., c. 264, s. 14, for negligently killing O. H. J., whose sole heir is his mother, A. M. It is the same case reported 58 N. H. 408. A. M. made an assignment in writing to C. of all her interest in the action. The assignment was absolute upon its face, but was really intended for the security of her counsel for their services and disbursements, the understanding being that the excess should belong to the assignor.

Bill in Equity, against trustees appointed under the will of the plaintiff’s father.

Assumpsit, on a note signed by D., payable to his own order, and by him endorsed, and also by E., one of the defendants, by their firm name.

Debt, under Gen. St., c. 105, s. 8. The evidence tended to show that the plaintiff was bitten by a dog kept on the defendant’s premises, June 21, 1876.

<p>Juries are organized under the direction of the court, and, for cause, the name of a juror may be excluded before the drawing begins. Whether a juror is indifferent, is a question of fact, to be decided at the trial, and ordinarily it will not be reheard at the law term.</p> <p>If in the trial of a cause incompetent evidence is received upon a point that is subsequently admitted, or proved by the opposite party, it furnishes no-ground for a new trial.</p>

Writ op Entry, on a mortgage. The condition of the mortgage was, to pay the amount of several notes, payable one in each succeeding year, as they respectively became due, “ with interest from the date of the. notes.” The notes were written “with annual interest from date.” At the date of the writ one note was overdue, and no interest on any of the notes had been paid.

Appeal, from the commissioner of insolvency on the estate represented by the defendant. The plaintiff and his wife lived with, took care of, and supported the deceased until his death, under a verbal agreement with him that he would devise or convey to the wife his homestead and personal estate, and to the plaintiff his wood-lot. He devised the homestead and personal estate to the wife, but did not devise or convey his wood-lot to the plaintiff.

Trespass, for that the plaintiff’s intestate, on the 12th day of September, 1870, being in the employment of the defendants as a brakeman upon a train of passenger cars run by the defendants carelessly and recklessly, to the imminent danger of life, limb, and property of all on board, the defendants with force and arms, and by crushing the plaintiff’s intestate between their cars, his clothing then and there worn upon his person did bespatter, injure, and destroy, and other…

Case, to recover damages for killing the plaintiff’s horse by the defendants’ locomotive.

Case, for a quantity of slate delivered to the defendants as common carriers, and alleged to have been lost.

Assumpsit. The defendant requested the plaintiff to sign a note to one Wentworth, as surety for his son, promising the plaintiff that he would see the note paid and indemnify him. The plaintiff, in consideration thereof, relying upon the defendant’s promise, signed the note. The defendant moved that the court order a verdict, because the agreement, not being in writing, was within the statute of frauds. The court denied the motion, subject to exception.

Case, for damages by fire from the defendants’ engine. Plea, the general issue. Before suit, the defendants’ superintendent told the plaintiff he would pay him $400 for the damages. The plaintiff refused to accept that sum, claiming $600. No formal tender was made or pleaded. The court instructed the jury, that if the plaintiff’s damage was not more than $400, and if his refusal to accept that sum prevented its being paid, he was not entitled to interest.

<p>A judgment is not satisfied by a deputy of the sheriff selling, on execution, the debtor’s property to the debtor, on credit, in violation of an order to sell for cash.</p> <p>A sheriff, who has heen compelled to compensate the creditor for such neglect of the deputy, may, as plaintiff in interest, maintain an action on the unsatisfied judgment orally assigned to him by the creditor.</p> <p>Debt, on a judgment on which an execution was issued. Facts found by a referee. The execution was delivered to a deputy of the sheriff, with an order to levy it on certain hay of the defendant, and to sell the hay for cash. The deputy sold the hay on credit to the defendant, who has not paid for it. The plaintiff sued the sheriff for the neglect of the deputy, and recovered full damages, which the. sheriff paid. The plaintiff made an oral assignment of his first judgment to the sheriff, who is the plaintiff in interest.</p>

Assumpsit, on a note for $300, dated April 5, 1873, signed by the defendant, payable to L. or order on demand, and endorsed by L. without recourse. Facts found by a referee. April 5,1873, the defendant bought land of L. for $1000, paid $700, and gave the note in suit, secured by a mortgage of the land. A year afterwards the defendant sold the land to A., who agreed to pay the note; and the land was described in the deed as subject to the mortgage.

Debt, by a town, against sureties on the official bond of Cogswell, formerly town treasurer. Facts found by a referee. Cogswell’s account having been examined by him, and his successor, Barnes, there was found due the town a balance, for which Cogswell gave Barnes his note, which Barnes accepted as cash in full payment and discharge of the debt. This was done in the presence of a selectman of the town.

Foreign Attachment. Question of the liability of the trustee. Facts found by a referee. The trustee received from the defendant a deed of his farm, and a bill of sale of personal property thereon, including a yoke of oxen. The deed and bill of sale were without consideration, and were made and received for the purpose of defeating' the defendant’s creditors. The defendant continued in the possession of the farm and a large part of the personal property.

Bill in Equity, to obtain the construction of the following clause of the will of Abel Hutchins : “ In consideration of kind care and affectionate regard of my two daughters, Mary and Martha, so long and so constantly manifested towards me and their mother, I give and bequeath to them and to the longest liver of them, all my household furniture in the house where I now live and which may be there at the time of my decease, in addition to an equal share to each of them in the…

Assumpsit. The question reserved was, whether this action could be maintained against the administrators for unskilful treatment of the plaintiff by the deceased.

Debt, on a judgment recovered in 1868. One of the defendants moves that the original action in which the judgment was rendered, be brought forward, and the judgment vacated.

Case, against the defendant, for injuries to the plaintiff’s son from the kick of the defendant’s horse, by reason whereof the plaintiff lost the service of his son, and incurred great expense in nursing and care. The defendant excepted to the instructions to the jury, that, if they found for the plaintiff, he might recover, in addition to the surgeon’s bill, the fair value of his own time while engaged in nursing and taking care of his son.

<p>Indictment, for an assault upon an officer. Plea autrefois convict. Facts agreed. The defendant was indicted, at the April term, 1876, in this county, for the offence charged in this indictment. He pleaded nolo contendere, and moved that judgment be arrested because the indictment was insufficient. The court arrested the judgment and discharged the defendant.</p>

Libel for Divorce, for abandonment and refusal to cohabit for three years. For proof, the libellant relied on the fact of her own abandonment of the libellee caused by his acts of extreme cruelty. In answer to this, the libellee offered the record of a judgment denying a divorce on a former libel for the same extreme cruelty. The question was reserved whether that judgment is a bar to a divorce in this suit.

Case, for polluting the water of the defendant’s well, the right to draw water from which is alleged to have been appurtenant to a dwelling-house of which the plaintiffs were seized. Facts found by a referee, who awarded the plaintiffs joint damages. A former owner of lots A and B conveyed A to the defendant, reserving the right to draw water by means of a pipe from the well on A for the family occupying B, and afterwards conveyed B to the plaintiff, Mrs. Noyes.

Appeal, from the refusal of the tax assessors of Manchester to abate a part of a tax assessed by them to the plaintiff for his real estate, which is… Held: and not with the sum or balance the holder may be found to be worth. If the owner of land be indebted to his creditor for the value of the land, and this indebtedness be represented by note or bond, the land is one property, and the note or bond another. Each is protected by the law, and each owes its tribute to the law.

Trover. Facts found by a referee. The property, to recover the value of which this suit is brought, was attached on a writ against one R., returnable to the police court of Manchester on the first Wednesday, being the 6th of September, 1877. By mistake the action was not entered on that day, but, by consent of R. and leave of court, was entered September 7. A term of the police court begins on the first Wednesday of each month, and continues until the next month.

Detinue, for a life insurance policy. Pacts found by a referee. The policy was issued in June, 1858, on the life of George Bowers, father of the plaintiff, payable to Caroline M. Bowers, his wife, for her sole use, and in case of her death before George, to her children, or their guardian for their use. Caroline died in December, 1860, leaving her husband alive and the plaintiff her sole child.

<p>Assumpsit. Facts agreed. H., by her will, devised the residue of her estate, after certain specific legacies, to the defendant town, in trust, the income to be appropriated for the education of the children of the town in a high school, to be established and commenced by the town witliin five years from her decease. If the school should not be commenced within the five years, the residue was given to the plaintiffs. The testatrix died April 26, 1872, and her will was proved and allowed June 25, 1872. March 10, 1874, the town voted to accept the legacy, and appointed the selectmen a board of trustees to receive it, but refused by vote to establish the school. March 14, 1876, the town voted to establish the school. At an adjourned meeting, April 1,1876, the vote of March 14 -was rescinded. In November, 1876, and March, 1877, the town by vote refused to establish the school. May 26,1874, the executor settled his account in the probate court, and there was found a residue in his hands of $8,519.11, which sum he voluntarily paid over on the same day to the selectmen without any decree of the probate court, and the selectmen appropriated the money to the payment of the town’s debts. The school not having been commenced within the time prescribed by the will, the plaintiffs, before suit, demanded the fund of the defendants.</p>

Assumpsit, on a promissory note given by the defendant to one W., and by him endorsed to the plaintiff. The defendant contended that one C. was an accomplice of W. in obtaining the note from the defendant by fraud, and introduced evidence of a conversation between C. and a son of the defendant, tending to show an admission by C. to that effect. The plaintiff objected to this evidence, but it was received, the defendant undertaking to make it competent.

Libel for divorce, alleging extreme cruelty, and treatment endangering reason and seriously injuring health. Particular instances of cruelty and treatment were set forth, and, among other things, excessive sexual intercourse, testified to by the libellant. The referee, to whom the cause was committed, reported that the parties ceased to have sexual intercourse three years prior to the filing of the libel, although residing together.

Foreign Attachment. Issue between the plaintiff and claimant. Facts found by the court. The trustees are indebted to the principal defendant for wood sold to them and cut by him from a farm which he had mortgaged to the claimant. The wood was cut without the claimant’s knowledge. After it was cut, he consented to the sale of the wood to the trustees upon condition that the proceeds should be paid to him.

Assumpsit, to recover money paid by the plaintiffs to the defendants for furnishing one W. as a substitute for one F. in the army. There was evidence tending to show that W. was accepted and mustered in, but was claimed in Boston as a deserter from a Massachusetts regiment, and was rejected as a substitute for F., who was compelled to furnish another substitute.

Assumpsit, for the balance of an account for spirituous liquor sold. The plaintiff sold to the defendant, in Massachusetts, at different times from 1871 to 1878, spirituous liquors, at prices amounting to $588.37. The defendant paid, at different times in 1871 and 1872, to be applied generally on account, $150 cash, and $80.60 liquors returned.

Debt, on a judgment. Plea, the levy of an execution issued on the judgment upon an equity of redemption in land, the sale of the equity mjder the levy to the plaintiffs, and the return of the execution satisfied. Replication, that the levy failed by reason of the homestead right of the defendant in the equity of redemption of greater value than the equity levied upon.

Foreign Attachment. The trustee is indebted to the defendant, and is administrator of 0, to whose estate the defendant is indebted. The court reserved the question whether the trustee can set off the debt due from the defendant to the estate against the debt due from the trustee to the defendant.

Replevin, for lumber attached by the defendant, a deputy sheriff, in a suit against the plaintiff. The plaintiff’s house, part of his homestead, and occupied by himself and his family, having been burned, he bought the lumber, and deposited it on his homestead lot, as materials for rebuilding the house. The attachment suit was founded on a judgment.

Case, against the selectmen of Newport, for wrongfully and unlawfully assessing a tax upon the plaintiff in 1875, and compelling him, by a collector’s warrant, to pay it. Facts found by a referee. In 1871 the town, by written resolution, authorized the issue of its bonds, payable in thirty years, to an amount not exceeding $125,000, for the purpose of funding its existing debts, and providing for the payment of a sum voted by the town in aid of a railroad.

Debt, to recover a penalty of two hundred dollars for catching, with a hook, twenty trout, April 20,1877.

Petition, under Gen. St., c. 188, s. 7, for leave to appeal from a decision of the judge of probate, allowing the final account of the defendant. Facts found by a referee. The petitioners are heirs at law of the testator. The account was allowed in this county, September, 1875. The executor gave the usual notices of the presentation of his account, which came to the knowledge of the petitioner, Charles D. Holton, and he was represented at the hearing by counsel.

<p>A guardian cannot maintain a suit in his own name on an account for the labor of his ward.</p>

Petition, for leave to appeal from a decree of the probate court made June 28, 1876, charging the plaintiff with the sum of $804.92 on settlement of his account as guardian of the defendant. Facts found by a referee. The plaintiff was duly cited to settle, of which he had actual notice, but neglecting to appear, an account was stated for him by the judge.

Indictment, upon Gen. St., c. 257, s. 8, for embezzlement of negotiable notes received from K. and P. by the defendant as their agent.

Trover, for a day-book, journal, and ledger, containing the plaintiffs’ accounts against sundry persons. The defendants were a deputy sheriff and his servant. The plaintiffs claim that the books were wrongfully attached and taken away. Since the attachment the plaintiff's have become bankrupts, are now in bankruptcy, and their assignee refuses to appear or recognize the suit. The defendants moved that the action be dismissed.

Bill in Equity, for partition. Facts agreed. December 26, 1873, the plaintiffs severally sued William W. Stickney, of St. Louis, Missouri, a nephew of the defendant, for labor and material furnished him to build a dwelling-house on School street in Lebanon, and on the same day caused the attachment of the following property, and a return of the same to be made on each of the writs, viz., — “ The dwelling-house lately erected by said defendant, on School street, in Lebanon in…

Case, foi’ an injury received by the plaintiff while attempting, with a horse and wagon, to cross the defendants’ track at a highway crossing, about half of which was occupied by the brake-van of a lumber train of the defendants. The train was stopped by one of the cars going off the track on a heavy down grade.

<p>A person who has color of title to land may apply for an abatement of the taxes assessed thereon.</p> <p>The court, in cases properly before it, has the same authority as selectmen to abate taxes.</p> <p>The fact that a tax on land is assessed to one who does not own it, affords no sufficient reason why the tax should he abated on the owner’s appeal, it not being shown that the tax is excessive. Justice requires that he should pay his share of the public taxes. He will therefore be left to his choice,— to pay the tax, or take his chances of losing his title or having a cloud thrown over it by a sale for non-payment.</p> <p>The provision of Gen. St., c. 51, s. 4, requiring an account of polls and estate liable to taxation, does not apply to non-residents.</p>

<p>A general report of a referee in favor of a party includes the finding of every fact necessary to sustain the report, unless the facts specially found and stated in it appear to he the only ones on which the general conclusion is reached.</p> <p>A party seeking to rescind a contract must ordinarily restore or offer to restore whatever he has received under it; and in case of the refusal of the wrong-doer to receive it, an offer to restore, properly made, is equivalent to actual restoration.</p>

<p>Trover, for a horse, being the action reported ante, p. 293. The evidence there reported was again introduced at the second trial. Gray, and his mortgagee, and the attaching creditor agreed in writing that the officer who attached the horse should sell it by auction, and apply the proceeds to the payment of the mortgage debt, and the balance to the payment of the debt of the attaching creditor. In accordance with this agreement, but in his official capacity, and not as agent of the parties to the agreement, the officer sold the horse, and the defendant bought it. The proceeds being less than the mortgage debt, were paid by the officer to the mortgagee. The plaintiff contended that the defendant derived his title from the mortgagee, and had not the right of an attaching creditor to contest the plaintiff’s title. The plaintiff desired to submit to the jury the question of fraud alleged by the defendant in Gray’s sale to the plaintiff. The court ordered a nonsuit, and the plaintiff excepted.</p>

<p>Tho governor and council are not judges of tlie elections of state senators or representatives in congress, and cannot reject votes which the town-clerks’ returns show were declared by tho moderators at such elections.</p> <p>It is the duty of the governor and council to count all such votes, and include them in their computation : and their declaration that they reject a part of them would he a refusal to make the computation which the law requires them to make, and a statement of the fact that their duty is left unperformed.</p>

<p>A statutory contract of tax exemption, valid upon the well settled, practical construction of the constitution when the contract was made, cannot be invalidated by a decision holding that construction to be erroneous.</p>