Volume 59 — New Hampshire Reports

Bill in Equity, by tbe assignee of tbe Rockingham Ten Cents Savings-Bank, appointed by the court to wind up the bank. Tried by the court. The defendant, Máry S. Norton, is the widow of B. Norton, who died May 28,1876. The other defendant, Emma, is their daughter.

<p>Trespass qu. cl., against S. J. Colcord, for crossing the plaintiff’s field. The defendant, in a brief statement, pleaded that the plaintiff obstructed the defendant’s private way of prescription on^ the plaintiff’s land, and made it impassable, and the defendant, being thereby compelled to deviate from that way, went across the plaintiff’s land at another reasonable and proper place, to avoid the obstruction. The court denied the plaintiff’s motion to reject the brief statement. Yerdict for the defendant.</p>

Bill in Equity, brought by the executor of Oliver 0. Kirk to obtain instructions for the disposal of a relief fund of $1,200, received by the plaintiff from a mutual relief association of which Oliver, the testator, was a member.

Assumpsit for money liad and received, and for money collected, on a policy of life insurance for the plaintiff’s benefit. Plea, the general issue. John Stokell, the plaintiff’s husband, took a policy of insurance on his life, of the Mass. Mut. Life Ins. Co., Dec. 14, 1865, for $2,500, for the benefit of his wife. The policy was by its terms payable to the assured, his executors, administrators, and assigns.

Writ oe Entry. The land was conveyed, Sept. 14, 1859, by the former owner, to the defendant, who is the wife of Daniel W. Ladd. She paid money for it when she received the deed. She received the money from her husband in the summer of 1859.. Between 1850 and 1858 her husband sold other land, called the Hanson farm, in different parcels, to different persons. When the deeds were made, she refused to sign them unless a part of the money received for the farm was paid to her.

Assumpsit, for attorney’s services. Facts found by an auditor. Tbe plaintiff was employed by tbe defendant, Dec. 11, 1877, to defend the suit of T. against him. Tbe plaintiff and defendant bad a settlement Feb. 7, 1878, and tbe defendant then employed the plaintiff to continue tbe defence of tbe suit of T. against him, and to obtain a divorce from bis wife. Tbe plaintiff performed services in both suits, for wbicb on June 15, 1878, be sued tbe defendant.

Case, for slander of the wife by the wife. Facts found by a referee. The plaintiffs were husband and wife, and the defendants were husband and wife. The alleged slanderous words were uttered by the defendant wife, in the absence and without the knowledge of the husband. The referee found the defendants guilty, and awarded the plaintiffs damages. The defendants moved in arrest of judgment for misjoinder.

<p>An election to and acceptance of a public office, at a fixed salary, does not create a contract so that the salary cannot be changed during the term of such election.</p> <p>City councils have the power to change the salary of any officer elected by them, or by the mayor and aldermen.</p>

Indictment eor Perjury. The state was permitted peremptorily to challenge a juror, and the respondent excepted. Verdict, guilty.

Bxll in Equity, for the foreclosure of a mortgage against Swan, the holder of a subsequent mortgage, and for a decree against a tax title acquired by Swan while holding his mortgage. Reported in 58 N. H. 380. Facts found by the court.

Libel foe Djvoboe, alleging the causo of desertion. The libellee, who was the wife, asked for alimony, and, subject to exception, introduced evidence as to the value of her husband’s estate and acts of cruelty, which were the same acts alleged by her in a former petition, which had been denied. There was an ante-nuptial agreement that she should have certain property within three months after his decease, in lieu of all claim against his estate.

Case, for damage to a traveller caused by a defective highway. The alleged defect was a hole at a railroad crossing. The defendant excepted to the refusal of the court to instruct the jury that it is not answerable for the mode of construction or condition of the railroad. Verdict for the plaintiff.

Debt, on the bond of the defendants given to indemnify Mohr, Solomon & Mohr against loss from an injunction issued against them, under the 36th rule in chancery. The plaintiff, as surviving partner of Mohr, Solomon & Mohr, recovered judgment against Chesley, and took execution upon it. Chesley, charging that the judgment was obtained by fraud, filed a bill in equity to vacate it and restrain its collection, and, upon filing the bond in suit, procured a temporary injunction.

Petition for the abatement of a tax, filed June 12, 1877, more tban nine months after notice of the tax. The facts appear in the •opinion.

Case, for obstructing a private way by a building. Plea, the general issue, and a license from the Hedding Camp-Meeting Association, in lipping, through whose land the alleged way run.

<p>Assumpsit, to recover $400 paid by the plaintiff at the request of the defendant. Plea, the general issue.</p> <p>August 29, 1872, the plaintiff conveyed to the defendant, by deed of warranty, a house and lot of land, the consideration expressed being $6,500, and reciting that it was subject to a mortgage to one Perkins to secure a note signed by the plaintiff for $5,000. On the delivery of the deed, the defendant paid the plaintiff $1,500, and he paid her back $100 and took her receipt for that sum, which recited that it was the amount of the accrued interest on the mortgage note. The plaintiff claimed that the defendant assumed the payment of the Perkins mortgage as a part of the consideration for the conveyance; and he testified that he paid the interest on the mortgage note as it became due, at the defendant’s request, and that she had paid him soon after, he taking Perkins’s receipts and turning them over to her, until 1877, when she refused to pay; and he brings this action for the amount he has paid since.</p> <p>The defendant denied that she assumed the payment of the Perkins mortgage, and claimed that the agreement was that she should give the plaintiff a mortgage for $5,000, and that he would let it lie as long as she might desire; that she paid the interest on $5,000 at the plaintiff's request, as that was the amount of the consideration remaining unpaid; that she paid it until a controversy arose between her and the plaintiff about the boundary line, when she refused to pay any more until the line should be adjusted according to the agreement as she understood it.</p> <p>The date was in dispute when the defendant forbade the plaintiff to pay any more interest to Perkins on her account; and the defendant was permitted to testify, subject to exception, that she forbade the payment when she learned that the boundary line was not where the plaintiff had represented it to be. This evidence was strictly limited to the question of fixing the defendant’s refusal to pay, as she recollected it; and the jury were instructed that it was not to be considered on the question whether the defendant assumed to pay the Perkins mortgage, nor as a defence to the action.</p> <p>The plaintiff moved that a verdict be ordered for him, which was denied, and he excepted. Verdict for the defendant, and motion by the plaintiff for a new trial.</p>

Case, against the defendant as a common carrier of passengers, for damages sustained by the plaintiff by the overturning of a carriage driven by E., the defendant’s servant. For the purpose of showing that the defendant did not consider E. a competent driver, evidence was received, subject to exception, that E. had driven the carriage but once after the accident.

Petition for abatement of taxes, under Gen. St., c. 53, s. 11. Motion to dismiss, upon tbe ground that the petition does not aver that the plaintiffs have complied with the requirements of Gen. St., c. 51, s. 4.

Review. In the first action, in Rockingham, there was a verdict for the plaintiff at the April term, 1878, on which judgment was rendered at the April term, 1879, and thereupon the defendants moved to bring forward the action for review.

Indictment upon Gen. St., c. 258, s. 9, alleging that the respondent, at Epping, August. 15,1877, “ did then and there unlaw- . fully have in his possession certain pieces of false and counterfeit coin, in imitation of the silver coin current within the state by law and usage, to wit, five pieces called twenty-five cent pieces, and five pieces called dimes, knowing the same to be so false and counterfeit, with intent that some person should be defrauded.” The defendant moved…

The appeal was filed June 29, 1878. The laying out was in September, 1877, and the return thereof was recorded September 24, 1877. The petitioner had actual notice of the laying out within sixty days after the return was recorded. The defendants moved to dismiss the petition, because the petitioner, having had actual notice of the laying out, did not file his petition within sixty days after the return thereof was recorded. Motion granted, and petitioner excepted.

Debt, upon an administrator’s bond. Tbe defendant pleaded performance. The plaintiff replied, first, that the defendant received assets as administrator, and returned an inventory, but did not render an account of his administration to the judge of probate within one year from his appointment as administrator.

Writ ok Entry, to foreclose a mortgage. The defendant filed a brief statement, claiming a deduction from the amount due on the note secured by the mortgage, .on the ground that the note was given in part payment for the farm covered by the mortgage, and that the defendant was induced to purchase the farm of the plaintiff, and pay more than it was worth, by reason of false representations ■of the plaintiff as to the productiveness of the farm and its capacity .to produce…

Writ op Entry. Facts agreed. September 2, 1869, William F. Chapman, one of the defendants, being the owner of the demanded premises, conveyed them to his daughter, who at the same time, and as part of the same transaction, conveyed them to the other defendant, Fanny J. Chapman, who was then and is now the wife of said William F. Chapman. The conveyances were without consideration.

Insolvency Proceedings, for winding up the defendant bank, under Gen. St., e. 152. D. and F. having special deposits in the bank for safe keeping, to be checked out on call, and the Portsmouth Savings-Bank being the indorsee for value of a check drawn by the defendant bank on a Boston bank, in payment of a deposit, claimed payment in full, as creditors, in preference to the claims of the general depositors.

<p>Bill in Equity, for the surrender of an overdue note; signed by the plaintiff and held by the defendant. Facts found by the court. A short time before the note became due, Foye, a selectman of the plaintiff town, called upon the defendant and told him it would not be convenient to pay the note at maturity. The defendant said that the note might remain if the town' would give him a year’s notice when they wished to pay it. It did not appear that the other selectmen ever knew of or assented to this arrangement. About seven years afterwards, Scott, one of the selectmen, offered .to pay the note, but the defendant said he had left it in Boston. Scott proceeded to count the money out, when the defendant started off. Scott held out to him $11,866 in legal tender notes, the amount then due being $11,744.33, saying that he tendered it on the note, and as the defendant left the house Scott demanded the note. Afterwards Perry, the town treasurer, tendered the defendant $11,750 in legal tender notes, and demanded the note. The defendant would not take the money, said the note was out of his hands, and refused to tell where it was. Perry testified that he did not intend to pay the note without its surrender or a receipt, but did not so inform the defendant. The same money tendered was deposited in the Rochester National Bank, where it has remained ewer since; and about ten months after-wards, Scott, at that time town treasurer, gave the defendant written notice that the money was ou deposit in the Rochester National Bank, ready for him when called for. The defendant took the notice, but refused to read it, and said he had transferred the note, but it was where he could get it. Upon none of the three occasions did he claim that he was entitled to a year’s notice of payment, or object to the amount or kind of money tendered him. He now claims that he was entitled to gold. The money was not in court at the time of the hearing, but the plaintiff offered to. produce it if the defendant made any question on that point.</p>

<p>A motion for a rehearing of a question of law, after decision, is not seasonably made when there has been a trial of the facts since the decision.</p>

Trespass, de bonis. Plea, the general issue. Upon the trial, the plaintiff offered to show that he held a mortgage upon the property, and that it was attached by a deputy of the defendant and taken from the possession of the mortgagor. There was no offer to prove that the defendant gave any order to his deputy to take the property, or that he had any knowledge of the taking, nor that the attaching creditor gave the deputy any special instructions.

Bill in Equity, for a homestead. The parties agreed upon, the following facts for the opinion of the court: May 28, 1878, the plaintiff, Stephen B. Cole, was the owner of one undivided half of the premises described in the bill, being about sixty acres, part mowing and part wood land; and he had no other real estate. On the above day, the defendants, having an execution against him, caused the same to be - levied on said land, subject only to the wife’s right of dower.

Bill in Equity, by judgment creditors of Charles H. Clay, charging that he had conveyed property to his wife in fraud of his creditors, and praying for an account and for the application of the property in discharge of the plaintiffs’ judgment.

Assumpsit, on a policy of insurance on the plaintiff’s half interest in a dwelling-house and furniture therein and in a shed, “ loss if any payable to B., as his interest may appear.” The plaintiff had no legal title to the property insured at the time of the fire, nor when the policy was issued, though the deeds conveying the property from B. to him had been made and executed, but had not been delivered. The defendants’ agent knew the true state of the title.

Case, for injury from an obstruction in a highway. Verdict for the plaintiff. Motion by the defendants for a new trial. The facts appear in the opinion.

CASE, for seduction of the plaintiff’s daughter, and getting her with child, per quod servitium amisib. After the evidence was closed, the plaintiff was permitted to amend his declaration by adding, after the allegation of loss of service and expenditure of money for nursing and medical attention, the words “ and was otherwise wronged and injured.” To this amendment the defendant excepted. The defendant requested the court to instruct the jury,— “1.

Petition for a new trial, on the ground of newly discovered evidence, in a capital case. The petition was presented at the second trial term after judgment; and all questions of law and fact were reserved.

Assumpsit, to recover $567.56 for goods sold and delivered, and lands sold and conveyed. Plea, the general issue, with a brief statement that the plaintiff accepted, in part payment of the property sold, a certain note for $532, signed by O. S. Berry, payable to the defendant, and endorsed by the defendant.

Assumpsit, to recover for goods sold. Facts found by the court. The defendants, by means of the false representations of the plaintiff’s agent, of which she had knowledge and subsequently ratified, were induced to purchase the goods in question. Subsequently, upon discovery of the fraud, they seasonably notified the plaintiff that they rescinded the contract of sale, and offered to return the goods, and afterwards kept them, subject to the plaintiff’s order.

<p>Indictment, for being accessory, before the fact, to the murder of H., by counselling, hiring, and procuring C. to commit the murder. Reported in 58 N. H. 257. Plea, not guilty. C., being called as a witness by the state, gave evidence of the details of the murder, and of the previous counselling, hiring, and procuring. A part of his testimony was, that he shot H. in the presence of the defendant; and that the defendant levelled the gun, and ordered him to fire. The defendant objected to this evidence, on the ground that it tended to show that he was a principal, and did not tend to prove the crime charged. The state’s counsel said it was offered, not for the purpose of showing that the defendant was an accessory, but for the sole purpose of showing that C. committed the murder. The court admitted the evidence, stating that it was competent for the purpose suggested, and for no other. No other use was made of it at the trial, in argument or' otherwise, than as it bore upon the question of C.’s guilt. The defendant excepted to the refusal of the court to instruct the jury, in the charge, that a person cannot be convicted as accessory by proof that he was present, aiding and abetting. The defendant also excepted to the refusal of the court to instruct the jury that if he was a principal he could not be convicted as an accessory.</p> <p>The jury found the defendant, guilty, and he moved in arrest of judgment because the jury did not find whether he was accessory to murder of the first or to murder of the second degree. He also moved for a new trial because he was' not present at a part of a view taken by the jury. Pie had an opportunity, and declined an invitation, to be present. Judgment was rendered on the verdict, and a bill of exceptions was allowed.</p>

Assumpsit, to recover $586.78 and interest. Plea, general issue, and statute of limitations. Writ dated April 1, 1876. Tbe plaintiff town bad borrowed of tbe defendant $500, which was repaid, and, as the plaintiffs claimed, was repaid by mistake a second time, March 10, 1865, with interest, which the defendant denied.

In Equity. The plaintiffs are assignees of the Carroll County Five Cents Savings-Bank, in process of liquidation. The defendants are depositors of the savings-bank, and severally indebted to it by promissory note, and claim the right to set off their deposits in payment of the notes, to which the plaintiffs object.

Aureal from the refusal of the tax assessors of Concord to abate a tax assessed to the plaintiffs in 1878. April 1, 1878, the bank had undivided profits amounting to more than $40,000 beyond the surplus required by law to be kept, the same being invested in government bonds, then on deposit in the treasury of the United States.

<p>A declaration for damage caused by a defective highway is not sustained by proof of a negligent act of a fireman in the highway frightening a traveller’s horse.</p>

Assumpsit, for materials furnished to build a livery stable. Attachment to secure statute lien. At the return term the bankruptcy of the defendant was suggested, and the action continued. At the next term it was shown that the assignee refused to appear. The defendant thereupon moved for leave to defend the suit. The court denied the motion, and ordered judgment in rem, to which the defendant excepted.

Debt, upon Gen. St., c. 135, ss. 4 and 5, to recover of the defendant, a director in the P. & O. R. R., a debt due from the corporation.

<p>Indictment, upon G. L., c. 163, s. 2. Motion by the defendants to quash.</p>

Petition for partition. Facts found by a referee. The plaintiff claims title through Stephen and Benjamin, sons of the late John Sanborn, who at his decease was the owner of the land, and who had conveyed to Stephen and Benjamin other lands exceeding in value their share of his estate. The plaintiff contends that the question of advancements cannot be tried in this suit.

Information, for being a common seller of spirituous liquor, filed during the April term, 1879, by the county solicitor, and alleging the offence to have been committed “on the 17th day of May in the year aforesaid, as well as on divers days and times before that day, and within one year prior to the filing of this information.” Motion to quash the information.

<p>Assumpsit, for the balance of an account (reported in 58 N. H. 336). The business of the several firms with the defendant was by one continuous account, without rests or settlement. He understood this, and did not object. When the plaintiff succeeded to the business of Boyd, Corey, Ahl & Co., the defendant was indebted to that firm, and now objects that payments since made and credits given cannot be applied to that indebtedness. A part of the defendant’s business with Boyd, Corey & Co., of which firm the plaintiff is the surviving partner, was receiving materials to be-manufactured and returning the goods when made. The balance of account against the defendant was for money and notes furnished by the latter firm in excess of what was required for manufacturing the materials. The defendant claims that this cannot be recovered in assumpsit.</p>

Appeal, from the allowance of a claim by a commissioner of insolvency. The plaintiff is administrator de bonis non, with the will annexed, of John Prescott. Goss was executor of the will. On the settlement of his account in probate court, there was found in his hands a balance of $240.76, which, by the. will, was bequeathed to four residuary legatees, of which the plaintiff was one. There was no formal decree of distribution. Goss died, not having paid the balance.

Assumpsit, on a life insurance policy. The defence was want of due notice and proof of death, and' that the policy was not in force at the death of the assured. The plaintiff’s husband was insured for her benefit March 20, 1866, for an annual premium to be paid in advance, one third cash, one third by a six-months note, and one third by a demand note. Cash payments were made, notes given, and the policy was renewed annually up to and including March 20,1869.

<p>Assumpsit, upon the promise of the defendant to indemnify the plaintiff against loss from the release of an attachment. Facts found by a referee.</p> <p>October 7, 1876, the plaintiff having a claim against one Emerson, attached by trustee process his wages in the hands of the Concord Railroad. Emerson was then employed on the line of the M. & N. W. R. R., which was operated by the Concord Railroad. October 16,1876, Sawyer wrote to the plaintiff representing that Emerson was in danger of losing his place through a rule of the road relating to trustee suits; that he had a large family ' dependent upon him for support; and added, “ If you will sign the enclosed release [of the attachment], I will be responsible to you that you shall not lose anything by such release.” The plaintiff executed the release as requested, and Sawyer, in consideration thereof, wrote across the face of his letter, and signed and delivered to the plaintiff, this agreement: “ Received herein described release, and become responsible.” October 21, 1876, Emerson filed a petition in bankruptcy, and subsequently obtained his discharge. ’</p> <p>W., cashier of the C. R. R., testified that the amount of wages due Emerson at the date of the service of the trustee process was $58.46; that his time was kept by another employé of the road ; that a statement of the time' so kept was returned by the timekeeper to W., who made up the pay-roll from the information so furnished; and that he had no other knowledge of the amount due to Emerson. To this evidence the defendant excepted.</p> <p>The witness was permitted to state, so far as he had personal knowledge, by whom and in what manner the M. & N. W. R. R. was operated, and stated, among other things, that the help on that road were paid by him as cashier of the C. R. R., and with the money of that road. To this evidence the defendant also excepted.</p> <p>The referee found that the attachment of Emerson’s wages was not shown to be and was not such a valid and legal attachment that the release of the same by the plaintiff would support a consideration for Sawyer’s promise to become responsible to the plantiff-for Emerson’s debt; that Sawyer’s guaranty was without consideration; and that no demand or notice was ever made by the plaintiff upon the defendant for the payment of the sum claimed, before suit was brought.</p> <p>Both parties moved for judgment.</p>

Trespass, for the forcible taking and carrying away of the plaintiff’s cattle. Facts found by a referee. The defendant was, at the time of the taking complained of, and since has been, sheriff of Merrimack county, and one Kenrick was his deputy. Kenrick was also deputy of the sheriff of Belknap county. Kenrick, at S. in Belknap county, attached the plaintiff’s cattle upon a writ against one D., returnable in Merrimack county, which is the taking complained of.

Indictment, for resisting and obstructing Edwin Judkins, sheriff of the county, in the service of a criminal process. The indictment alleged that he was “ legally appointed and duly qualified to discharge the duties of his said office.” The proof was, that he was acting sheriff of the county. The respondent moved to be discharged because the allegation was not proved. The motion was denied, and he excepted. The jury returned a verdict of guilty.

Trespass, for taking a horse, team wagon, dump-cart, sled, and a pair of team harnesses. Facts found by a referee. The defendant, as a deputy sheriff, attached and sold the property upon a writ against the plaintiff, who was temporarily absent from the state at the time of the attachment, but returned and demanded the property of the defendant before the sale, claiming it as exempt from attachment. The plaintiff’s occupation was teaming.

Trespass, quare clausum. Facts agreed. The plaintiff and defendant are owners of adjoining lots of land, situated on Chapel street, in Concord. Both parties claim under conveyances from Stephen M. Vail, — the plaintiff, by deed dated May 3, 1864, and the defendant, by deed dated April 22, 1867. The boundary line between the lots is in dispute, and the question of the construction of the plaintiff’s deed is reserved.

<p>The tax of one per cent, laid upon savings-banks by Gen. Laws, c. 65, s. 8, is a property tax.</p> <p>The levy of this tax is not discontinued during the process of winding up a bank on an assignment in insolvency.</p>

Assumpsit, for necessaries furnished the wife of the defendant while living separate from him. Facts found by a referee.

Case, for deceit in the sale of land. Plea, the general issue. The evidence tended to show that the defendant pointed out to the plaintiff, as included in the sale, a certain piece of woodland of considerable value which he did not own, and which was not included in the premises described in the deed which he gave the plaintiff.

<p>Truesdale v. Straw, 58 N. H. 213, 214, affirmed, as to the construction of a submission authorizing referees to make a preliminary award, and to give damages arising after the submission.</p> <p>An honest and intelligent award, embracing only the matters submitted, is generally valid, notwithstanding errors and informalities consistent with the fairness of the trial.</p> <p>It may be proper for referees, authorized to determine the location of a line, to go upon the premises and make measurements, in the absence and without the knowledge of the parties.</p> <p>Material statements made to referees in regard to the case, in the absence of the parties, do not invalidate the award, when they do not cause, nor have any tendency to cause, any error in the award or any unfairness in the trial.</p> <p>When the proceedings of referees are fair and equitable, their award is not invalidated by evidence that one of them acted upon his own knowledge of a material fact, and that his associates acted upon the same knowledge, communicated to them by him.</p>

Foreign Attachment. Question whether the trustee should be charged. Before the commencement of this suit, the defendant instituted prosecutions against two persons for violation of the liquor law, and caused them to be indicted on his own testimony, intending to claim half of the fines, under Gen. St., c. 99, s. 21, and declaring that he made complaint, and testified before the grand jury for that purpose.

<p>Case, for deceit in the sale of land. Plea, tbe general issue.</p> <p>The plaintiff’s evidence tended to show the following facts: December 3, 1873, the defendant conveyed to the plaintiff a lot of land in Hoolcsett. Several days before said "conveyance, one Gordon, a son-in-law of the defendant (who lived on the premises about a year), had a talk with the plaintiff in regard to a sale of the premises, and subsequently the plaintiff went to Hooksett and examined the land, Gordon pointing out some of the boundaries, and representing to tbe plaintiff that a certain piece of woodland was included in the premises to be sold, when, in fact, it did not belong to the defendant. Thereupon the plaintiff bargained with Gordon for the purchase of the farm; and then, for the first time, Gordon informed the plaintiff that his father-in-law, the defendant, held the title to the farm. It was then agreed that the defendant would, at a time and place specified, meet the plaintiff and execute the deed, at which time and place the defendant and his wife did execute and deliver to the plaintiff a deed of the premises, drawn from a sketch of the land made by Gordon, the deed to the defendant not being present. Before signing, the deed was read over in the presence of the parties and Gordon. The woodland actually conveyed by the defendant’s deed contained about three acres; and that pointed out by Gordon, as embraced in the premises to be conveyed, contained from four to six acres. The plaintiff and the defendant Lad no talk in regard to the farm, or the bargain therefor. The plaintiff offered no evidence of the agency of Gordon further than his relationship to the defendant, and the fact that the defendant signed the deed. Nor was there any evidence that the defendant knew of the representations made by Gordon, as to the amount of land included in the premises, other than those contained in his deed to the plaintiff.</p> <p>The defendant excepted to the refusal of the court to order a nonsuit on this evidence.</p> <p>The defendant’s evidence tended to show that Gordon, in fact, owned said farm, the defendant merely holding the title as security for money loaned to Gordon; that previously Gordon had lived on several places of which the defendant held either a deed or a mortgage, and which Gordon had, with the consent of the defendant, exchanged or sold, the defendant signing the deeds; and that in every instance of this kind the defendant had no interest in the premises conveyed, except as security for money loaned Gordon.</p> <p>Verdict for the plaintiff, and motion for a new trial, because there was no competent or sufficient evidence of agency; because the declaration was insufficient; because the damages were excessive ; and because the verdict was against the weight of evidence. Motion denied, and the defendant excepted.</p>

Assumpsit, for money had and received by the defendant of one Lamprey for the plaintiff. Facts found by a referee. The plaintiff’s attorney sent the defendant, a deputy sheriff, a trustee' writ in favor of the plaintiff against one Jennell. The defendant, without authority, took an order for the amount of the debt, payable to himself, drawn by Jennell and accepted by Lamprey.

Bill in Equity, for a settlement of partnership accounts. Facts found by a referee.

Assumpsit for labor. The health officers of the defendant city employed the plkintiff, for what her services should be worth, to nurse and care for several members of her father’s family confined with small-pox at the city pest-house, on the order of those officers. The inmates were confined against their own and their father’s consent, and were helpless by reason of their confinement. The defendants denied their liability.

Assumpsit, for the breach of a patrol contract to lease to the plaintiff land, and buildings to be erected thereon, for ten years. The plaintiff alleged the payment of part of the rent in advance. Subject to the defendants’ exception, the court ruled that the payment of-part of the stipulated rent is not necessarily such part performance as will-take the case out of the statute of frauds, but is evidence which the jury may consider on that question. Verdict for the plaintiff.

<p>The equality clause of the statute of railway transportation (Gr. L., c. 163, . s. 2) is a reenactment of the common law against unreasonable and unjust discrimination, and does not require the same price per pound for transporting large and small quantities of coal between the same points. As the carrier’s labor and expense of transporting a quantity of coal in many small parcels might be more than the labor and expense of transporting the same quantity in one parcel, the owner of the latter might suffer from an unreasonable and unjust discriminar •tion, if the price per pound were the same for all quantities.</p>

Bill in Equity, to enjoin the defendants from levying an execution against Patrick Sullivan, on the plaintiff’s land. The land was purchased with the plaintiff’s money, and the deed taken in the name of her husband.

Bill ok Interpleader. The defendants were decreed to interplead, and submitted the case upon the material facts stated in the bill, which are as follows: December 12, 1850, Mary Bingham (who died August 5,1866) procured from the plaintiffs a policy upon the life of her husband (who died October 4, 1878) for $2,000, payable to her, or her executors, administrators, and assigns, within ninety days after notice and proof of the death of her husband, or, in case her husband…

Case, for libel in accusing the ■ plaintiff of crime. Plea, the general issue, with a brief statement alleging that the defendants are conductors and publishers of a newspaper published at, &c., and as such it was part of their duty to give to their readers such items of news as they might properly judge to be of interest and value to the community, and that, as such conductors. and publishers, they published the article complained of, in good faith, without malice,…

Petition for partition. The question presented by the agreed statement of facts is, whether the dower and homestead estates of a widow are included in, or are in addition to, the moiety of her deceased husband’s real estate, which she takes in fee under the provisions of Gen. St., c. 183, s. 8.

Assumpsit, to recover the balance of the defendant’s promissory-note, dated January 10, 1870, upon which there are endorsed several partial payments, the last being dated August 8, 1872. Plea, the general issue, with a brief statement of the statute of limitations. Facts found by a referee. At the date of the note the defendant resided in this state, and has continued to reside here to the present time, except as hereafter stated.

<p>Debt, on a judgment recovered in Louisiana. This is the same case reported in 58 N. H. 272. The defendant pleaded nul tiel record to each count, and the plaintiff joined issue. The plaintiff filed three special replications to each plea, alleging that the defendant is estopped to plead nul tiel record because of certain proceedings in the courts of Louisiana (set forth in the replications), whereby it was adjudged that he was estopped to deny the validity of the judgment declared upon. The defendant moved to reject the replications, on the ground that the plaintiff, having joined issue on the plea of nul tiel record, cannot set up any other matter as an answer to that plea.</p>

Trespass, for taking and carrying away crops. The plaintiff claimed that the crops were raised by him on a farm leased of his mother, Mary H. Adams, in March, 1876. The defendant denied that the lease was ever delivered, or that the plaintiff ever had or was entitled to the possession of the farm or crops, and claimed that, in August, 1876, he had purchased the farm and crops of said Mary H. Adams, and her husband Nathan Adams.

Debt, upon a recognizance to keep the peace and be of good behavior for one year, entered into before the police court of Manchester. The action was committed to a referee, who found that the condition of the recognizance had been forfeited. The defendant contended that the action could not be maintained, because the recognizance had not been returned to and made of record in the supreme court.

Writ of Entry. The demanded premises were formerly owned by John Harriman, deceased, and both parties claim title under the following provision in his will: First, “ I give and bequeath unto ' my brother, Amos Harriman, and his wife, during their natural lives, and the survivor of them, the use, occupation, and improvement of a piece of land lying in said Goffstpwn [describing the demanded premises]; the said use, occupation, and improvement of said land to be for comfort…

Foreign Attachment. Decatur, the principal defendant, and one Sullivan, being partners, Decatur filed a bill in equity against Sullivan for a dissolution of the partnership and a settlement of the partnership business, and the trustee was appointed a receiver to take possession of, hold, and collect the partnership property and effects during the pendency of the bill in equity.

Bill in Equity, to set aside an award. Facts found by a referee. The arbitrators were chosen by the parties under an unrestricted common-law submission in writing. Against the objection of the plaintiff, the examination was conducted without requiring the witnesses to be sworn. The parties commenced the hearing without counsel, and a subsequent request by the plaintiff to be heard by counsel was denied.

<p>Upon an indictment for breaking and entering and stealing, the prisoner upon conviction may be sentenced under Gr. L., a. 279, for breaking and entering with intent to commit larceny.</p> <p>Indictment, for breaking and entering a store, and stealing therefrom one bank bill. The respondent demurred, on the ground that no offence punishable under the Genera] Laws was charged in the indictment, the punishment prescribed by statute (G. L., c. 279) being for breaking and entering with intent to commit larceny.</p>

Writ oe Entry, for an undivided half of a tract of land in Dublin. Facts found by a referee. The premises were bought in May, 1864, by William I. Sawyer and Eli Thomas, who took a deed in which the grantees were the plaintiff, and Richard Thomas. The grantees and the purchasers have, all the time, been non-residents.

Assumpsit, on an account of many items. Facts found by a referee. The statute of limitations being pleaded, it became a material question whether a payment made by the defendant, and not expressly applied by either party to any particular items, should be applied, at the date of the writ, to items not then barred by the statute.

Trover, for an organ. Facts found by the court. The organ was delivered by the plaintiffs to one Davis, under a contract, in writing, in which it was, among other things, stipulated that Davis should make efforts to sell it for them, and pay over the proceeds less his commissions. It was agreed that the plaintiffs should not part with their title until they were paid. The contract was admitted in evidence, subject to the defendant’s exception.

<p>An amendment may be made, in any action, in any stage of the proceedings, to prevent injustice.</p> <p>The form of action may be changed by amendment.</p>

<p>Under Gen. Laws, c. 184, s. 6, the revocation of a guardianship, the personal cause of which has ceased, is not prevented by a pending process of settling the ward’s estate in the insolvent course, under Gen. Laws, c. 186, s. 10.</p>

Assumpsit, on this writing: East Sullivan, Dec. 31,1875. I promise to pay D. W. Goodnow, collector, one hundred and thirty-two and 27-100 dollars, on demand, for taxes due the town of Sullivan from John N. Grout, for the year 1875. L. S. Bond. N. G. Lyman.

Assumpsit, upon a promissory note, dated December 27, 1866, payable to the plaintiff or bearer on demand, with interest annually, and signed by Charles L. Fletcher and the defendant.

Assumpsit, on the common money counts. Facts found by the court. The plaintiff was a surety for the defendants, who were the principals on a note given by them to a bank. After six years,' by reason of partial payments made on the note by the defendants, they remained liable; but the statute of limitations became a defence to the plaintiff. Fxeter Bank v. Sullivan, 6 N. FI. 124; Kelley v. Sanborn, 9 N. II. 46; Whipple v. Stevens, 22 N H. 219, 226.

Assumpsit, for the plaintiff’s share of a circular brick building, erected and used for a cover of an aqueduct reservoir, which cover, it is alleged, was destroyed by the defendant, a cotenant with the plaintiff. Verdict for the plaintiff.

Replevin', for the plaintiff’s buggy wagon and harness, attached by the defendant, and claimed by the plaintiff, a physician, as “tools of his occupation” and exempt from attachment, the same being used by him in riding to visit his patients. These articles; with all the other tools of his occupation, were worth less than $100.

Writ of Entry, on a mortgage given to the plaintiff by James Duff. ' After the mortgage was given, the defendant, a creditor of Duff, attached the land, and under Gen. St., e. 205, s. 9, demanded of the plaintiff an account of the amount due on the mortgage.

Assumpsit, to recover the price of liquors sold March 17, 1876, by the plaintiff, a's state agent under Gen. St., c. 99, to B., as liquor agent of the town of Cornish. The plaintiff’s evidence tended to show that B. was acting liquor agent of the town; that the selectmen paid to the town treasurer, February 28, 1877, $59.14 as cash received as profits from the liquor agent, and that B. had then sold most if not all of the liquors, for the price of which this suit is brought.

Assumpsit, to recover the amount of a promissory note dated September 29, 1877, given for liquors bought February 24, 1876. Facts agreed. The order for the liquors was taken at Claremont, N. H., by an agent of the plaintiffs’, transmitted to the plaintiffs at Boston, and accepted by them. The agent was authorized to receive such orders, but was not authorized to make sales.

Assumpsit, to recover $300 commutation-money paid by the plaintiff to avoid entering the military service of the United States under a draft. Writ dated May 26, 1875.

Petition, for a highway in Lebanon across the Connecticut river. It was referred to the county commissioners, who made their report laying out the highway, and condemning for that purpose the franchise and bridge of the plaintiffs, and assessing their damages. The plaintiffs, being dissatisfied with the amount of damages assessed, elected that they be assessed by a jury, and objected to the entering of judgment upon the report previous to such assessment.

Trespass, for an assault and battery. Plea, the general issue. The court gave the jury certain instructions on the subject of self-defence, to which the defendant excepted.

Case, for negligence. The action was entered March term, 1873, and March term, 1876, the defendant had a verdict. November 26, 1878, the plaintiff was granted a discharge in bankruptcy. Judgment on the verdict was ordered at’the law term in March, 1877, but was not ordered at the trial term till March, 1879, and has not yet been rendered.

Assumpsit, on a policy of insurance. The evidence tended to show that the application was taken by one Page, who was employed by Webster, Morrill & Co., the defendants’ agents, to solicit insurance for them, and give them information as to proposed risks, and that he received a commission on the premiums on policies issued on risks obtained by him. ' The defence was, that there was a fraudulent over-valuation of the property.

Writ of Entry. Plea in abatement, alleging the pendency of a prior action for the same cause. The plaintiff filed a replication, to which there was a demurrer by the defendant. The de~ ■ fendant did not enroll the record of the prior action.

<p>Trespass, for cutting and carrying away grass. The defendants justified under process. Facts agreed.</p> <p>June 26, 1877, the defendant Elliott attached the grass, on a writ in favor of B. against S., and on the same day left a copy of the writ and return endorsed thereon with the town-clerk, for the purpose of preserving the attachment. The grass was then ripe and fit for harvest. S. was in possession of the premises on which the grass grew, and owned the same, subject to two mortgages, one of which was then held by the plaintiff, on which she had recovered a judgment for possession. June 27, 1877, the plaintiff bought the other mortgage, and July 2, 1877, in presence of witnesses, took peaceable possession, with the consent of S., for the purpose of foreclosure. July 22, 1877, the defendant Elliott, with his servants, entered upon the premises, and, against the plaintiff’s objection, cut the grass and carried it away. The, question was reserved whether the plaintiff was entitled to recover.</p>

Bill in Equity, to remove a cloud from the title to certain real estate claimed to be owned by the plaintiff. Heard on bill and answers.

Troyer, lor a horse. Facts found by a referee. The plaintiff, as deputy sheriff, attached the horse on a writ against C., as his property,' and 0. procured the defendant to receipt for it. Neither the plaintiff nor the defendant saw the horse • at the time of the attachment The action in which it was attached went to judgment, on which execution issued, which was placed in the plaintiff’s hands, who made a demand on the defendant for it, which was refused.

<p>Trover, for a horse attached by the defendant, a deputy sheriff. The plaintiff claimed that it was exempt from attachment. He was superintendent of the Grafton county poor-farm. Besides three horses owned by the county, he kept his own horse on the farm; and his evidence tended to show that he used it to go to the store, post-office, and mill, buy cattle for the farm, convey his children to school three or four times a week, and his family to church on Sundays. Subject to the plaintiff’s exception, the court refused to instruct the jury that if the plaintiff required the horse in educating his children, such use would be actual within the meaning of the statute, — and instructed them that it must be required and used in gaining his livelihood, and not merely to occasionally convey his children to school and his family to church. Verdict for the defendant.</p>

Writ or Error, to reverse a judgment rendered at the trial term against the plaintiff, as trustee of one R.', in the original action.

Writ of Entry, to foreclose a mortgage upon a tract of land in Wentworth. The defendant mortgaged the premises to the plaintiff by his deed dated September 26, 1870, containing the usual covenants of warranty against all persons claiming under the defendant, to secure a note of the same date for $1500, payable on demand, with interest.

Trover, for two horses, three cows, one bull, one hundred and fifty bushels potatoes, six tons of hay, two calves, and one pair harnesses. Writ dated January 20, 1877. Facts found by a referee. The conversion of the property by the defendant was on or about November 10, 1875. The plaintiff was adjudged a bankrupt February 11, 1876, upon a creditors’ petition, and ap. assignee appointed.

Trover, for thirty tons hay, four tons straw, one hundred and seventy-five bushels oats, seventy bushels buckwheat, twenty-five bushels potatoes, four tons corn-fodder, twelve loads manure, three cows, one bull, two calves, two horses, one hog, one pair harnesses, and one hundred and fifty bushels potatoes. Writ dated January 20, 1877. The plaintiff is assignee in bankruptcy of Frank P. Winn, who was adjudged bankrupt, upon petition of his creditors, February 11, 1876.

Assumpsit, for the balance of an account of liquors. Facts found by a referee. The defendant, a resident of New Hampshire, sent orders for liquors, at different times, to the plaintiff, a resident of Massachusetts. The sales were completed by delivery, at different times, to a common carrier in Massachusetts.

Case, tried by jury in April, 1878. Reserved questions of law were decided at the law term, March, 1879, 58 N. H. 611. Judgment was rendered on the verdict for the plaintiff in April, 1879, and at the same time the defendants moved that the action be brought forward for review.

Assumrsit, on a note dated May 23, 1871. The defendant pleaded his discharge in bankruptcy, obtained March 12, 1878. The plaintiff replied, that he had no notice of the bankruptcy proceedings, that the note in suit was fraudulently omitted from the defendant’s schedule of his debts, and that tbe defendant fraudulently omitted certain property from his schedule of assets. The defendant demurred.

In Equity. The bill alleged a deed fraudulently made by tbe defendant Buckingham, as attorney of tbe plaintiffs, to tbe defendant Young, and contained a prayer that tbe deed be set aside, and for other relief. Tbe cause was sent to a referee, selected by tbe parties, under tbe provisions of tbe Laws of 1876, e. 35, s. 2.

Assumpsit, for a balance due for logs sold. Facts found by a referee. The plaintiffs agreed to sell and deliver to the defendant, in Connecticut river, below the mouth of Indian Stream, 150,000 feet of spruce logs, — the defendant to deliver to one Vandyke, at the same place, a large amount of similar logs; and it was understood by the plaintiffs that Vandyke, under his contract with the defendant, was to have their .logs.

Debt, upon a contract under seal. Pleas : I, Nil debet; II, Satisfaction; III, Set-off. Facts found by a referee. Tbe defendant furnished the plaintiff $2,000, to be used in the purchase and location of government lands at government price. The defendant was to be a joint tenant with the plaintiff in the lands, and to have one half the gain, income, and avails of the land at all times, and, when sold, one half the proceeds.

Fobeign Attachment. Issue, between the plaintiff and the trustee, tried by the jury. The plaintiff claimed to charge the trustee in the sum of §250 for labor of the defendant, and §6,000, the proceeds of land sold by the trustee, belonging to the defendant, or in which he had an interest to that amount, which the plaintiff claimed the trustee held in trust for the defendant and in fraud of the defendant’s creditors.

Bill in Equity, for a conveyance from the defendants of certain lands, and an injunction to restrain Errol from taking out :a writ of possession on a judgment against the plaintiff. Facts found by the court.

Trespass, for assault and battery, which occurred in the defendant’s attempt to recapture a cow taken by the plaintiff. The court refused to instruct the jury, that, if the defendant was entitled to the possession of the cow, lie had the right to recapture her, using so much force as was reasonably necessary for that purpose; but instructed them that, if in recapturing her he committed an assault and battery, he woidd be liable, and the defendant excepted.

Assumpsit, for a furnace, cistern, and attachment sold to the defendant. The plaintiffs claim a lien for their price, under Gen. St., c. 125, s. 11. Facts found by a referee. The court overruled the objection that they were not furnished for erecting, altering, or repairing a house.

Replevin, for four oxen. The plaintiff claimed that he purchased the oxen of one Rogers, and let one Callahan take them. The defendant claimed that he bought them of Callahan. Subject to the plaintiff’s exception, the court instructed the jury that if Rogers understood he was selling to Callahan, the plaintiff could not recover.

Case, for damages from defective highway. The plaintiff’s evidence tended to show that the wheel of his wagon struck a stone in the highway, the defect complained of, and he was thrown out and injured. The defendants’ evidence tended to show that he jumped out. It appeared, on cross-examination of Pennock, the defendants’ witness, that, at the request of the plaintiff, he had made a statement somewhat different from his testimony.

<p>The defendant Williams held mortgages from B. and H., each of arc undivided half of real estate, to secure the note of each. B. and II. hy one deed conveyed the whole estate to M., who gave them a mortgage of the whole to secure his separate note to each for his share of the purchase-money unpaid. B. and H. each transferred hy indorsement to Williams his note from M., and Williams in exchange gave up to them respectively their notes, and discharged the mortgages held hy him against them. The plaintiffs hold the note transferred hy B. to Williams, and the defendant Weeks the note transferred by H. to Williams. On a hill to equitably apply the proceeds of M.’s mortgage to Williams, the plaintiffs are entitled to priority in payment to the extent of one half the proceeds.</p>

Bill in Equity, alleging that the plaintiffs, owning a saw-mill on the Ammonoosuc river, had a large quantity of logs held by a boom in the river above the mill. The defendant, having logs further up the river, run them down, and they became mingled with the plaintiffs’ logs. The plaintiffs, being agents of a corporation chartered to improve the river, had the right to detain the defendant’s logs until he paid the toll on them.

Replevin, for three pictures, a piano, and a billiard-table.

Complaint eor Bastardy. The complaint was made before one W., a justice, who inadvertently omitted to sign the warrant. The officer arrested the respondent, and carried him before one G., a justice, who discharged him because the warrrant was not signed.

Assumpsit, for services of the plaintiff’s intestate. Plea, the general issue and tlie statute of limitations. Replication, a new promise. Facts found by a referee. October 7, 1872, the defendant wrote a letter to Dr. Winch, the plaintiff’s intestate, claiming that there was but a small sum due, but offering him $107.30 if he would take that amount in full settlement. The offer was not accepted.

<p>Trespass, qu. cl. Plea, the general issue. Facts found by referees.</p> <p>There were sixty original proprietors of the town of Kilkenny, and one hundred and twenty lots lotted, two lots being drawn to each proprietor. The rest of the town, comprising a large part thereof, was undivided. The town is uninhabited. The plaintiffs in 1863 became the owners of twenty-eight and one third sixtieths of the town, by purchase of that number of the rights of the original proprietors thereof, by undisputed titles. They also held deeds of warranty of nine and two thirds sixtieths of the town from different individuals, hut their title did not extend back to the original proprietors. These deeds conveyed to the plaintiffs not only the rights of the proprietors to land which had been allotted, but also all their rights to the undivided lands in the town. In 1863 the plaintiffs entered upon the promises, and claimed the whole town by virtue of their deeds, some of which purported to convey tbe whole town. Tbe earliest deed of this kind was in 1863, and was between the plaintiff's, given from one to another.</p> <p>Tlxe defendant claims a one-balf interest, undivided, with bis brothers, to three of tbe original rights in the town, under a quitclaim deed from one Green, dated December 14, 1874, conveying all his right, title, and interest in and to the rights of three of the original proprietors. Green obtained his title by the levy of an execution in April, 1854, whereby the rights of three of the original proprietors were set off to him as the property of one Russell, whose title Avas derived from one Bosworth by deed of warranty 'dated August 28, 1835. There, was no evidence of title in Bos-Avorth. When these three rights were set off on Green’s execution against Russell, the officer and appraisers entered upon the premises and delivered seizin thereof to Green. The three rights claimed by the defendant were none 'Of those which had been specially conveyed or attempted to be conveyed to the plaintiffs. The trespass complained of was committed on the undivided portion of the toAvn. There was no eviction of either party by the other of the whole premises or of any particular part thereof.</p> <p>The defendant claimed that the plaintiffs were tenants in common, and therefore could not unite in bringing this action, nor maintain their suit. The plaintiffs claimed that as there was no plea in abatement of the joinder of the plaintiffs, the action could be maintained. The defendant claimed that if liable for any damage, he was only liable for thirty-eight sixtieths of the whole damages ; but the referees, against the defendant’s exception, ruled that the plaintiffs were entitled to recover, and assessed full damages in their favor.</p>

Wbit ob Entry, to foreclose a mortgage. Facts found by tbe ■court. The mortgage is tbe same as that in tbe suit Noyes v. Barnet, 57 N. H. 605, and is beld by Noyes. Benton bolds three and Noyes bolds one of the notes secured by tbe mortgage. Noyes’s suit was entered at tbe April term, 1874, and Benton’s at tbe April term, 1877.

Debt, on four bonds given by Charles Cobleigh as principal, and Wayne Cobleigh as surety, and conditioned for the faithful performance by Charles of his duties as collector of the plaintiff town for the years 1870, 1871, 1872, and 1874.

Indictment, for catching, killing, and destroying four trout from the waters of North pond in Stark, on the 4th day of February, 1878. It is conceded that the defendant took the fish as alleged in the indictment, and that he was then in possession of all the land surrounding the pond, claiming the pond as his estate, from which he had the right to take fish whenever he chose.

Bill in Equity, to foreclose a mortgage of lot 105. The north half of the lot is of sufficient value to satisfy the mortgage; and the question raised is, whether the plaintiff is entitled to a foreclosure of the whole lot. Facts sufficiently stated in the opinion.

<p>Assumpsit, for money paid by the plaintiffs for substitutes. Writs dated March 5, 1875. Pleas, the general issue and the statute of limitations. Facts agreed. August 29, 1864, Gould, being a citizen of the town of Raymond, and being liable to perform military duty in the service of the United States, furnished a substitute, who was mustered into that service as a part of the quota of Raymond. Gould paid for procuring the substitute $100 more than he has received from the town, state, or United States. The warrant calling the annual town-meeting of Raymond on the 14th day of March, 1865, contained this article: “ To see if the town will vote to refund to each and every person (who may have provided a substitute) the $100 paid by them over and above the amount previously received from the town as paid to substitutes towards filling the quota of said town agreeable to the requisition made on said town by the president of the United States.” At that meeting the town passed the vote proposed in the warrant.</p> <p>Drake was a citizen of North Hampton, and the facts in his case are the same as in Gould’s, except that the article in the warrant calling a town-meeting on the 13th day of March, 1866, was,— “Art. 24. To see if the town of North Hampton will vote to pay the men of said town. the sums of money they can severally prove to the satisfaction of said town that they have paid out to fill the quotas of said town;” and the town “Voted,'That should it ever become legal, the selectmen are instructed to pay the sums of money to the men who have paid- for filling the quotas of this town, agreeably to Art. 24 of the warrant.”</p> <p>At the June term, 1879, these cases were disposed of by the decision in Bowles v. Landaff, ante, p. 164. Judgments were ordered for the defendants; and the plaintiffs moved for a rehearing.</p>

<p>Bill in Equity. Facts found by a referee.</p>

The court instructed the jury that they would find upon all the ■evidence in the case what the understanding and agreement of the parties wras as to the payment of rent by the defendant; that to make an agreement or an understanding, the minds of the parties must meet, should mutually assent that rent was or was not to be paid; that if the contract was that the defendant was to pay rent ■after a demand, he would not be liable unless a demand was made.

Case, for injuries on a highway leading from Chester to Auburn village. It appeared that the plaintiff’s sons, Willard and, John, lived with their father at the time of the accident, and have since; that when the horses came home, they immediately harnessed one of them and started for their father, and, finding him injured in the highway, took him home.

Appeal, from the refusal of the selectmen of Windham to abate a tax assessed in 1879. Facts found by the court. In April, 1879, the plaintiff was taxed in Windham for $1,000, “ money on hand, at interest, or on deposit.” This money was deposited in a savings-bank in Lawrence, Mass., in good faith, and not to avoid taxation. The plaintiff had complied with the provisions of Gen. Laws, c. 55, and seasonably applied for an abatement, which was refused.

Trovbr, for hay. The plaintiff, being a deputy of the sheriff, attached the hay as the property of Nathan A. & William F. Parker, described in the writ as late co-partners. Prior to the attachment, the defendant purchased the hay, leaving it in the barn where it was attached. Subsequent to the attachment he removed the hay. The referee found the sale fraudulent as against Parker’s creditors, and the defendant guilty.

Case, for injuries on a highway alleged to be unsuitable because insufficiently railed.

There is about an acre of woodland, called the nursery, immediately north of and adjoining the great field, enclosed on the north, east, and west sides, but open on the south side next the great field. The forty acres, the west part of which is north of the east part of the great field, is cleared pasture-land at the north and south ends. Eight to ten acres on the east side are wood of old growth.

Assumpsit, for apples sold and delivered. The defendant, residing in this state, was the agent of A. & O. W* Mead & Co., a firm doing business in Boston, and all its members resident in Massachusetts. At the time of the sale of the apples, the plaintiff was informed and knew that the defendant was acting as agent of the firm. A referee found for the defendant.

Assumpsit, on a policy of life insurance, No. 36,232, dated December 31, 1874, for $1,000, on the life of R. B., which was delivered to the plaintiff as the agent of his son, R. B., by Hodgdon, an agent of the defendants. The receipt for the first premium, of cash $61.20, plus loan note for $30 = $91.20, was also delivered with the policy.

Debt, upon Glen. St., c. 213, s. 3, as amended by Laws of 1872, c. 12, to recover a penalty. Facts found by the court. The defendants are a banking corporation, organized under the national currency act, and they claimed that the state law relating to usury was not binding on them. Verdict for the defendants, and motion for a new trial.

Aepeau, from a decree of the probate court, allowing the account of the appellee, as administrator de bonis non on the estate of Henry Evans, deceased. The interest of the appellant as stated in the appeal ivas, that he was surety on the bond of the guardian of the minor heirs of the deceased, and had purchased a portion of the assets of the deceased. Motion to dismiss.

Assumpsit, on the common counts for labor performed and materials furnished in constructing an aqueduct. The plaintiffs’ evidence tended to show an oral contract, whereby the defendants agreed to receive from the plaintiffs, for ten years, at a price named, a quantity of water daily, at a round-house to be built by the defendants.

Bill in Equity, by an executor, to obtain the direction of the court. The testator made certain provisions for his widow, and devised certain real and personal estate in trust for his children.

ProbatÉ Appeal, from a decree determining the amount in the hands of the defendant as guardian upon a settlement of account. The plaintiff, a surety on the defendant’s bond, is satisfied with the amount fixed by the decree, but appeals for the alleged reason that the account was settled upon insufficient notice, and that by reason of this defect the decree will be of no avail to the plaintiff in determining the sum for which he is liable as surety.

Trespass quare clausum. Defence, a right of way in the locus in quo. Facts agreed. Butler and Chesley owned a tract of land bounded northerly by the highway leading from Durham to Dover, and southerly by a highway leading from Durham to the old Piscataqua bridge. Southerly from this tract, and across the last named highway, was a tract of land owned by Butler.

Assumpsit. The defendant, a wholesale merchant in Boston, furnished goods to the plaintiffs, who carried on business as a union store at Great Falls, N. H., and this action is brought to recover items of cash claimed to have been paid by the plaintiffs to the defendant at different times prior to February 9, 1875, and not credited by him.

Indictment, charging that the respondent attempted to set fire to an out-building adjoining a dwelling-house. The evidence was, that the out-building did not touch the house; that the space between them at the base was four inches; that the house was higher than the out-building, and the roof of the house extended over it, leaving a space of about three feet between its top and the under side of the roof of the house.

Bill tn Equity, for the assignment of a homestead (reported ante, p. 53). The plaintiff Cole, and Prescott, owned the land in •common, and used it for raising hay. Neither of them lived upon the land, and there was no house upon it. The plaintiffs, Cole and his wife, were boarders about three miles away from the land. Cole had talked of buying Prescott’s interest in the land, but had no fixed purpose about it.

Indictment, for forcible entry and detainer. The respondents offered to show that Morgan was mortgagee of the premises upon which the alleged offence was committed; that he recovered a judgment for the possession of the mortgaged premises, and was put in possession by the sheriff in June, 1875, by virtue of a writ of possession upon which due return was made; that the complainant, Robinson, who was the mortgageor, and in occupation of a portion of the dwelling-house upon the…

Assumpsit. Writ dated October 16,1878. Plea, general issue and statute of limitations. Facts found by a referee. The defendant is a daughter of the plaintiff and Emerson Giles, who died in 1873. March 20, 1865, the plaintiff got the defendant to deposit $50 for her in the Meredith Bridge Savings-Bank, and a like amount August 28, 1867.

<p>Parol evidence is admissible on the question of identity of a note described in the condition of a mortgage</p>

<p>The propriety of sending to the jury a chalk, referred to in testimony, is a question of fact to be determined at the trial term.</p> <p>Case, for kindling a fire on the defendant’s land so carelessly that it spread to the plaintiff’s land and consumed his timber. Subject to exception, a chalk, showing the location of places referred to in testimony, and used in the examination of witnesses, was sent to the jury after they retired to consider their verdict. Verdict for the defendant.</p>

Indictment for perjury. The indictment alleges that the respondent was tried before a justice of the peace, November 14, 1878, on a complaint for libel; that the respondent was sworn, and testified in his own behalf; that it became a material question whether the respondent had committed the crime of larceny of seven books from the store of one Bird, in Boston, Mass.; whether he had been arraigned therefor before the municipal court of Boston ; whether he pleaded guilty to…

<p>Petition, by tbe plaintiffs, for tbe assessment of tbe defendant’s' land damages, under tbe flowage law, e. 20, Laws of 1868. Report-', ed in 56 N. H. 886.</p> <p>Tbe defendant filed tbe following paper: — Tbe said Samuel Head protesting tbat tbe statutes or acts of tbe legislature under wbicb tbe said company claim a.n assessment of damages, upon tbe payment of wbicb or under thereof they shall obtain a right follow bis land and appropriate bis property to their use, is in violation of s. 1 of Art. XIV of tbe amendments to tbe constitution of tbe United States, wbicb provides tbat no state shall deprive any' person of property without due process of law, nor deny to any person within its jurisdiction tbe equal protection of tbe laws, inasmuch as tbe use to Avliicb the said Head’s property is thus to be appropriated is a private use, and not a public use, and protesting tbat it is not competent for the jury to pass upon tbe question whether’ the construction of tbe mills and canals of said company, and tbe erection of their said dam, with said flash-boards forming a part of tbe same, as constructed by said corporation, and tbe flowing of bis land thereby to tbe depth and extent tbat tbe same may or can be flowed or otherwise injured by said dam and flash-boards, is or may be of public use or benefit to tbe people of this state,1 or that tbe same is necessary fay tbe use of tbe mills for wbicb it is designed, nevertheless expressly admits tbat if it is competent for tbe jury to pass upon said questions upon any evidence tbat can lawfully be submitted to them against bis protest, said evidence is to be deemed to have been already submitted against bis fouxrd in accordance with all tbe all matters relating to tbe same, protest, and tbe jury to have allegations of tbe petition in except as to the fact of flowage, and injury and the amount of damages. His land described in said petition, and other land of his, adjoining the same on the south side of the highway mentioned in said petition, are and will be greatly damaged, flowed, and injured by said dam and flash-boards, and all to the damage of the .said Head as he says the sum of fifteen thousand dollars.</p> <p>Sautter Head,</p> <p>By his attorneys, C. R. Morrison and W. & G. A. Lttire.</p> <p>The defendant’s motion for the opening and close was denied, subject to exception. The plaintiffs gave evidence, subject to the defendant's exception, of the character and extent of their works, the number of persons employed by them, and generally of the facts stated in the petition. The court having intimated the opinion athat the raising of the dam was of public use, within the meaning of the statute, both parties gave evidence as to the damage done the defendant thereby. The defendant again moved for the close; also that the petition be dismissed because the evidence showed only a private use. Both motions were denied, subject to exception. The question of damages was the only question submitted to the jury.</p> <p>In 18(11 the defendant conveyed to the plaintiffs the right to flow his land as high as it would be flowed by the erection of the plaintiffs’ new stone dam, which was finished in September, 1871. In 1875 the plaintiffs placed on the new dam flash-boards two feet in height; and it is for the determination of the damage done thereby that this proceeding is instituted.</p> <p>The defendant put in evidence the deposition of E. A. Straw, taken May 22, 1878, who was general agent of the company from 1852, and had been before that in their service as civil engineer from 1887. In the deposition were the following questions and answers:</p> <p>Int. 5. “ Please state whether flash-boards were put upon this last dam by the company and maintained there, and if so what height.”</p> <p>Ans. “ I think the company purchased the right of several owners, can’t say how many, to maintain flash-boards to a certain height on top of this last dam, about two feet — can’t say whether there are any inches or not. We have maintained them on the dam since the purchase of this right.”</p> <p>Int. 6. “In the Manchester Daily Union of Feb. 2, 1875, are lists of person of whom such purchase was made and of the sums paid, which are as follows:</p> <p>Sum paid.</p> <p>1. J. E. Stearns, $6,900.00</p> <p>.2. J. M. Webber, 112.50</p> <p>3. Mrs. S. S. Webber, 337.50</p> <p>Sum paid.</p> <p>4. F. C. Stearns, $225.00</p> <p>5. H. Fogg, 112.50</p> <p>6. Harris J. Poor, 2,100.00</p> <p>7. Enoch N. Ely, $3,791.00</p> <p>8. James P. Ely, 3,900.00</p> <p>9. John Harvey, 2,400.00</p> <p>10. Stephen C. Eastman, 337.50</p> <p>11. Harrison Mitchell, 300.00</p> <p>12. David A. Kimball, 1,125.00</p> <p>13. Wm. K,. Eastman, ' 630.00</p> <p>14. Abraham Mitchell, 738.75</p> <p>15. Geo. W. Davis, 300.00</p> <p>16. Wm. H. Putnam, 682.00</p> <p>17. Nancy Shirley, 510.00</p> <p>18. John Shirley, 5,287.50</p> <p>19. Betsey Goodrich, 150.00</p> <p>20. Nath’l Mitchell, $2,058.75</p> <p>21. Peter Kimball, 1,064.50</p> <p>22. John Prince, 528.50</p> <p>23. Nehemiah Preston, 975.00</p> <p>24. Heirs of J.E. Kimball, 702.50</p> <p>25. John G. Garland, 360.00</p> <p>26. Sarah P. Martin, 700.00</p> <p>27. Alpheus A. Wells, 150.00</p> <p>28. Alfred T. Martin, 1,045.00</p> <p>29. J. Thompson, 5,871.75</p> <p>30. Sylvester B. Chandler, 262.50</p> <p>31. Joseph T. Goss, 1,336.50</p> <p>32. J. W. Prescott, 1,137.50</p> <p>Please state whether the foregoing sums were paid by the company to the persons named for such purchase.”</p> <p>Ans. “ The persons and sums named are substantially correct. Each case was settled by a separate board of reference agreed upon by the parties, and each case examined and the parties heard upon it as they desired to be, and so far as I know decided and settled upon the report they made, and upon payment of the sums named conveyances were made by deed to the Amoskeag Mfg. Co.” Subject to the defendant’s exception, the last question and answer were excluded.</p> <p>In 1856 Daniel Farmer conveyed to the plaintiffs the right to maintain the water to the height of the new stone dam. He died, and his daughter Elizabeth inherited a part of the land. The defendant offered in evidence a deed conveying the right to flow the inherited land as the water was raised by the flash-boards, and a relinquishment of certain claims for unliquidated damages for the consideration of $4,800, which the court excluded, subject to the defendant’s exception.</p> <p>Subject to the defendant’s exception, Gault, a witness for the plaintiff, was allowed to testify what he recently paid for a piece of land bounded by the river, located near the defendant’s, without producing his deed.</p>

Bill in Equity, taken pro confesso as to the defendants O. K. Russell, H. Russell, and Fellows. The defendants Loverin and Wadsworth appear and answer. Facts found by the court.

And the plaintiff avers that, on said 10th day of October, 1874, she was riding and being driven in a lawful, careful, and proper manner, over and upon said highway, in said city of Concord, drawn by a proper horse, near the junction of said Warren and Tahanto streets, and, by reason of the said hydrant so erected as aforesaid, and said line of hose so attached to said hydrant as aforesaid, and by reason of the careless, negligent, unlawful, and improper manner in which said…

Case, for entering the house occupied by the plaintiff and her husband and children, and taking out the doors and windows, tearing up the floor, and making a noise and disturbance, whereby the plaintiff was exposed, frightened, and disturbed, prematurely delivered of a child, and seriously injured in health. The defendant’s objection, that the plaintiff cannot recover in this form of action, was overruled.

Review of the action of debt on a bond, reported in 58 N. H. 164. Plea, non est factum, and a brief statement that the defendant’s signature was obtained by fraud. Dudley was an agent of the plaintiff, and the bond was signed by Dudley as principal, and! by Moore, and the defendant, and two others, as sureties; and the signatures were not denied. The condition of the bond was to pay the past and future indebtedness of Dudley to the plaintiff.

<p>An action of debt for a penalty for catching fish in the plaintiff’s pond, in violation of G-. L., c. 179, s. 1, cannot be maintained by one who was not owner or lessee of all the land under or around and adjoining the pond.</p>

Motion, by Elizabeth P. Gill, who appears as a subsequent attaching creditor, to dismiss the action because the writ was made by a deputy sheriff. Facts found by a referee. March 25, 1879, the plaintiff went to the office of N. Butler, an attorney, to get him to make a writ of attachment against the defendant.

Indictment, for obstructing the Boston, Concord & Montreal Railroad. As tending to prove a motive, the state, against the exception of the defendant, were permitted to show that the defendant had been twice arrested on criminal charges at the instance and on the complaint of the Boston, Concord & Montreal Railroad, once about four years and once about a year before the act charged in the indictment.

Trespass quare clausum. Plea, the general issue. Facts found by a referee.

Petition, under G. L., c. 186, s. 9, filed May 12, 1879. Facts-found by tlie court. January 20, 1877, David S. Green and wife made a mortgage of the land to Rogers to secure a note of that date for $750, payable $200 in two years and $550 in three years from date. The note and mortgage were by Rogers assigned to the defendant about May 15, 1878, and he has since been the owner and holder of them.

Assumpsit, to recover for goods sold and delivered. The defendant pleaded infancy, and the question was reserved whether that was a bar to the plaintiffs’ recovery. The defendant was engaged in trade, and the goods were purchased by him for the purposes of trade, and were not necessaries within the ordinary meaning of that term.

Claim, for the support of Abigail Gould, alleged to be a county pauper. A disagreement arising between the plaintiffs and the county commissioners, the claim was referred, under Gen. Laws, e. 25, s. 10, to the court for decision. The alleged pauper has lived in Salisbury substantially all the time since 1855.

Assumpsit, against the defendants, as common carriers of merchandise. Facts found by a referee. The plaintiff delivered the property in question to the defendants, to be transported from Nashua to Cresco, Iowa, and received a bill of lading which contained the contract between the parties, and in which the defendants excepted from their liability the dangers of fire. The merchandise was destroyed by fire while on the way, without fault of the defendants.

<p>Petition, under Gen. Laws, e. 75, s. 9. The petitioner alleged that he received the injury of which he complained, Nov. 17,1878; and, subject to the defendants’ exception, the court allowed the petition to be amended by striking out 17 and inserting 18.</p>

Bill of Interpleader, brought by the administrator of Mary A. Remington, to determine conflicting claims to money deposited in a savings-bank by the deceased in her lifetime. Facts found by a referee.

Bill in Equity, by the heir of a testator, to cancel the will, alleging that the testator was fraudulently induced to execute it; that upon the petition of Smith, one of the defendants and executor of the will, the plaintiff being a minor, the probate court appointed Currier, the other defendant, his guardian ad litem; that Currier was the plaintiff’s trustee under the will; that Smith obtained the probate of the will in pretended solemn form, after notice by publication,…

Debt, against the selectmen of Andover for school-money belonging to the plaintiffs, remaining unpaid, made up of a tax upon the polls and taxable estate in the town, the literary fund and the-dog-tax, and assigned to the plaintiffs by a former board of selectmen for the years ending March, 1877, and March, 1878. Plea, nil debet. Facts found by a referee. During those years no school was kept,, and in the former year there were only one or two scholars in the district.

Covenant broken. Facts found by a referee. March 21, 1842, George J. Eastman conveyed a tract of land to the defendant, in which his wife, Judith Eastman, did not release her right of dower. Eastman died in 1872. January 1, 1851, the defendant conveyed the land to Simpson and Haines, with full covenants of warranty, for the consideration of $500.

Assumpsit. Facts found by a referee. Tbe plaintiff, Thursday, August 10, 1876, took a job of the defendant to move his goods from Manchester to New London for $20, he to bear the plaintiff’s expenses, and fixed upon Saturday as the day to start from New London. The parties started on the day fixed, reached Manchester the same night, loaded the goods, and started back Sunday morning at 3 o’clock.

Trover, for a bouse and stable. Facts agreed. One Colton made a contract with tbe defendant to build a bouse and stable on tbe defendant’s land, on foundations made by tbe defendant, for tbe sum of $2,100, payable in instalments, tbe work to be done under tbe superintendence and to tbe satisfaction of tbe defendant, and to be completed at a time fixed; and Colton agreed to deliver up tbe buildings in perfect order and condition.

Bill in Equity for foreclosure of a mortgage, dated May 31, 1876, on land and appurtenances described as follows: “ Two thirds of a tract of land situate * * * with the buildings thereon, including a dwelling-house and appurtenances, and a hosiery factory and its appurtenances, including all the dams, water-wheels, fixtures, and fixed machinery therein, said factory being known as the Highland Lake Mills, the other third thereof being owned by George E. Shepard, with all the…

<p>The word “ heirs,” in its technical common-law signification, does not necessarily embrace all who would share in the personal estate under the statute of distributions; and a bequest to the heirs of a deceased wife does not include her surviving husband, unless it appears from other parts of the will that such was the intention of the testator.</p> <p>Probate Appeal. Facts agreed. J. G-. by his last will gave fo his wife the use and income of his homestead farm during her life, and after her decease the use and income of the same to his son John, and after his decease he gave the same to his daughter, Anna G. Wilkins, and her heirs forever. By his will he instructed "the defendants to sell all his real estate excepting said homestead farm. He also gave to his son John one half of his estate subject to certain provisions; and in case said John died before he came into possession and control of his share of said estate, he directed that the income of the said share, which would otherwise have gone to said John, shall go to and he devised and bequeathed the same tó his said daughter, Anna G. Wilkins, and directed that she should have the sole and exclusive charge and control of the principal, that is to say, the whole of the said one undivided half of his said then remaining estate, the share of his son John as aforesaid, discharged of the uses and trusts of the said defendants, but to be held by her in trust for, and distributed and divided according to her discretion to and among, her own children, but in no 'case until the child or children receiving any portion thereof shall have 'arrived at the age of twenty-one years.</p> <p>He also directed that tbe said defendants as trustees as aforesaid, should, within one year from the date of his decease, pay to his said daughter, Anna G. Wilkins, the sum of $400, and that they slioirld make annual payments to her of the same amount during ten successive years or fifteen successive years after his decease, according to the discretion of said defendants as trustees as aforesaid, or so long as she lived, not exceeding the time provided as aforesaid for the continuance of said annuity, and at her decease before the expiration of said time, he directed that the one undivided half of all his estate then remaining should go to, and he devised and bequeathed the same to, the heirs of the said Anna G. Wilkins forever.</p> <p>At the time of making said will, the said Anna was married to Francis G. Wilkins. She died before the expiration of said ten years, leaving the said Francis G. Wilkins, her husband, living, and two children. J. G.’s estate consisted of the homestead farm valued at $2,500, a piece of real estate called the Haines place, valued at $700, and of personal property appraised $70,436.11.</p>

Assumpsit, to recover the sum of $1;140.20 received by the defendant within four months prior to the commencement of proceedings in bankruptcy by B. R. Dow, of whose estate the plaintiff is assignee, the defendant knowing that said B. R. Dow was insolvent. Facts found by a referee. B. R. Dow filed his petition in bankruptcy January 19, 1877, was adjudged bankrupt January 20, 1877, and the plaintiff was appointed assignee February 5, 1877.

<p>A corporation is estopped to deny its liability under a contract, on the ground that its officers were not technically authorized to make it, or that its own proceedings in the premises were irregular, when the contract was within the scope of its powers, was entered into by proper officers, and has been recognized by corporate acts.</p> <p>Section 8, c. 134, Gen. St., prohibiting a corporation from selling or disposing of its capital stock at less than par, except at auction, for nonpayment of assessments, does not apply to the holder of stock which the corporation has pledged or mortgaged.</p>

Assumpsit, to recover for the board of a prisoner committed to the reform school from the defendant town. Facts found by a referee. The action was in the name of the state.' The defendants demurred, but the referee overruled the demurrer, and they excepted. The complaint against the prisoner and the warrant on which he was arrested were defective, but he made no objection, and when arraigned pleaded guilty, and was sentenced to the reform school for one year.

Appeal, from the decision of a commissioner, appointed under Gen. Laws, c. 166, s. 16, to determine claims presented against the defendant bank. The plaintiff presented a claim against the bank, which was considered by the commissioner and disallowed. The appeal was dismissed, and the plaintiff excepted.

Writ oe Entry. Facts found by a referee. The plaintiff purchased the land in dispute upon a sale for taxes, assessed thereon in 1859 against one Cutter, with his consent, including his poll tax. At the time of the assessment the legal title was in one Pearson, and Cutter was in possession under a parol agreement to purchase, but he abandoned possession before the tax sale. The defendants claim title from Pearson.

Bill in Equity, by the executors of Mary Gf. Gale, for instruction. After providing for the payment of certain annuities to legatees, the will directs the executors to sell all the estate, except the Union Building, and keep the proceeds and the rents derived from the Union Building safely invested, allowing them to accumulate until January 1, 1890.

Case, against the defendant, as clerk of the city of Manchester, for neglecting to note upon the index, as required by law, a mortgage of persona] property given by the EJm Street Universalist Society to one Simons, and falsely stating that if any such mortgage had been given it would be found noted in the index, whereby the plaintiffs were induced to take a mortgage upon the same property, supposing it to be unincumbered.

Trover. On the trial before a referee, the general reputation of the defendant’s principal witness was shown to be bad. His impeachment was general, and not restricted to his reputation for truth. The award is, that the referee “ has come to the conclusion that the principal witness for the defence is discredited, and he therefore finds for the plaintiff.”

Trover, for lumber. Plea, the general issue, with a brief statement of justification as the agent and servant of Flanders & Pattee, claiming to be the owners. Facts found by a referee. Williams sold and delivered to the plaintiff the lumber which he had severed from his land, of which Flanders & Pattee had a recorded mortgage, excepting about 300 feet which he obtained elsewhere, but which was indistinguishably mixed with the other lumber.

Case, for negligently permitting a gutter and culvert connected ■with a public highway to become obstructed, whereby water was thrown back upon and damaged the plaintiffs’ land and dwelling-house. The culvert was within the limits of a railroad at a highway crossing, and was constructed and managed by the railroad.

Appeal, from the refusal of the tax assessors of Nashua to abate a tax. Facts agreed. The tax was assessed upon bonds of the par value of $4,500, and appraised at $3,250, issued by the N. & R. R. R. Co., pursuant to the statutes of 1873, c. 139. The money raised from the bonds was used in the construction of the road, and is a part of the capital so used. The road was commenced in 1872, and opened to the public in 1874.

Wkit of Summons, for the possession of certain premises occupied by the defendant as tenant of the plaintiffs, commenced April 22, 1879, under the provisions of Gen. Laws, e. 250. In the police court the defendant filed a plea of title, and recognized May 1, 1879, with sureties according to the provisions of o. 250, s. 12, and the action was thereupon entered in this court.

AsstjmpsIt, to recover the price of milk sold and delivered to the defendant, who wa,s a minor engaged in the milk business. The milk purchased of the plaintiff was sold by the defendant to his customers. The defendant pleaded infancy.

<p>Bill in Equity, supplemental to the suit of the plaintiffs against Elliot and others, — reported in 52 N. II. 387 — S. 0., 57 N. II. 397 — /S'. 0., 58 N. H. 451, — praying for an accounting by tbe defendants for tbe income of tbe plaintiffs’ railroad from December 1, 1876, to April 21, 1877.</p> <p>Tbe bill alleges, that at the bearing before tbe master in tbe principal suit, the accounts were made up to December 1, 1876; that tbe defendants retained possession of tbe road, taking tbe income, up to April 21, 1877, which was tbe date of tbe final decree ; and that they have never accounted for tbe income between those dates.</p> <p>Tbe defendants deny their liability to account, alleging that tbe matters for which relief is now asked were matters of substance in tbe original bill; that tbe decree was left open, under tbe former bill, for tbe settlement of all questions which might arise in favor of either party, in order to have tbe decree of the court made final; that there was a motion for a rehearing, and, at tbe time that motion was considered, it appeared from tbe records of tbe court that tbe plaintiffs were in possession of tbe road; that tbe court denied the motion for a rehearing, and ordered that, upon tbe plaintiffs’ paying to tbe defendants $5,000, tbe decree should be final; and that this order was not for tbe correction of any particular error, but for tbe purpose of correcting all errors, and removing nil difficulties in tbe way of a final decree. Tbe case was beard on tbe bill and answer.</p>

<p>A defendant in replevin cannot lawfully, while the action is pending, retake the replevied property from the plaintiff on another writ of replevin against him.</p>

Replevin, for a buggy wagon. Tho pleadings raised the issue whether the wagon at the time of the taking was the property of Israel F. Towne, or of Gardner Towne, the plaintiff. Facts found by a referee. Israel resided in Stoddard and Gardner in Hillsborough, and are brothers. Israel being about to remove to Massachusetts with his family, sold to Gardner a horse, harness, and the buggy wagon in question, for which he had no further use, and needed their value in money.

Petition, for the removal of a cause to the circuit court of the United. States. The action was entered at the October term, 1877. .At the October term, 1878, a nonsuit was ordered on the ground that the form of action was wrong. At the June law term, 1879, the plaintiff’s exception was sustained, and he had leave to amend by changing the form of action.

<p>Payment of a mortgage debt by one having an interest to protect will operate as an assignment of the mortgage whenever justice requires it.</p>

Bill in Equity, for an injunction to restrain the defendant from setting up an Illinois judgment as a defence in a suit at law brought by the plaintiff against the defendant in this county. The defendant appeared specially, and pleaded want of service. When the bill was filed the defendant was, and ever since has been, a citizen and resident of Illinois: and the bill was served on him in that state.

Assumpsit, on a policy of insurance. Plea, the general issue. Reported, 58 N. 11. 469. October 2,1875, the plaintiff went to the office of one Robinson, an insurance agent at Claremont, and procured of him three concurrent policies of insurance, for $1,000 each, on his saw-inill, machinery, and steam-engine connected therewith. Each policy covered the same amount on ehch of the items of property.

Trover, for six cases of socks. Plea, the general issue. Facts found by the court. The defendant is an agent of Whittemore, Cabot & Co., of Boston, who are the defendants in interest, and are to be regarded as the defendants of record. The value of the socks is $592.80. Each party claims them by virtue of a title derived from one Quinn, who manufactured them, and whose custom was to send his goods to the defendants to be sold by them on commission.

Indictment, for the manslaughter of Mr. Angelí. The defendant killed Angelí, and claimed that he killed him in self-defence. The evidence tended to show the following facts: — The title of the house in which the homicide occurred, and the premises connected therewith, was in Mrs. Angelí, the wife of the deceased. She held the property to her sole and separate use, free from the control or interference of her husband. The deceased and his wife lived there together.

Writ of Entry, on a mortgage given in 1872 by Roundy to Willard, sold by Willard to Bradford in 1878, and bought of Bradford in good faith, by the plaintiff, February 14, 1878. Bradford held a bond from Roundy for a deed of the land before he bought the mortgage, and Roundy executed a deed in 1873, but Bradford did not accept it until February 9, 1878, and it was recorded April 24,1878.

<p>In a suit brought by an infant, not by his guardian or next friend, when the plaintiff has become of age since the commencement of the suit, no amendment, and no appearance of a guardian or next friend, are necessary to obviate the objection that the suit was improperly brought.</p> <p>All the persons interested in a decedent’s estate, fairly settling it without administration, are hound by their settlement.</p> <p>In Equity. The plaintiff has become of age since the .suit was brought; and it was not brought by her guradian or next friend. The plaintiff is the daughter, and the defendant is the widow, of J. A. H., who owed but one debt. That debt haying been paid by his father, the plaintiff and defendant were the only persons inter: ested in the estate, which was settled without administration by the plaintiff’s guardian and the defendant; and the bill is based, on their settlement. The defendant demurred.</p>

<p>The decision of a question of title between a mortgagee and his grantor, in favor of the former, does not bind another mortgagee of the same land, as a party, who was not a party of record in the proceeding.</p> <p>A mortgagee is not bound as a privy in estate with the mortgageor, by acts of the latter affecting the title, subsequent to the execution of the mortgage.</p> <p>A witness, or an agent, or an attorney of one of the parties who assists in the trial, is not, for that reason, bound by. the result of the suit.</p> <p>A person is not estopped to contest a question by reason of an adjudication of the same, unless the estoppel would be mutual.</p> <p>A person is not estopped by words or acts, when he did not intend to bind himself thereby, and when his conduct did not afford reasonable cause for the other party to believe that he would be bound.</p>

<p>Courts of equity have jurisdiction of personal negative covenants, and will enforce their performance by injunction.</p> <p>If the mischief sought to be avoided is irreparable, and arises from the non-fulfilment of a contract that may be enforced by a decree, equity will interfere.</p> <p>A suit at law to recover damage sustained by the breach of a contract, and a bill in equity to compel the performance of the same contract, which is being constantly violated, may be maintained at' the same time.</p> <p>If a decree of injunction recommended by a referee is too extensive in it prohibition, it may be made more general or more specific by amendment.</p>

<p>A verdict will not, ordinarily, be set aside on exception to tbe ruling of tbe court giving the right to open and close to either party, unless it appear that injustice has been done.</p> <p>The court may limit the number of experts to be called as witnesses.</p> <p>When the venue has been changed for the purpose of securing a fair trial, that purpose cannot be defeated by irrelevant statements and arguments of counsel addressed to the jury in relation to the change of venue.</p>

Cask, for deceit in an exchange of horses. Facts found by a referee. The plaintiff had in his possession a horse belonging to> his brother, which he was authorized to dispose of as he chose. He exchanged it with the defendant for a horse belonging to one Gilman, which the defendant intended the plaintiff should suppose, and which the plaintiff did suppose, was the defendant’s. Nothing was said by either party about the ownership of either horse.

<p>A conveyance of premises, “ with the right to draw water as the pipes now lie ” from the grantor’s fish-pond, gives the grantee no right to draw water from a reservoir situated upon other land of the grantor,— although, at the time of the conveyance, water temporarily flowed in pipes from the reservoir to the premises conveyed, without the knowledge or procurement of the grantor, and although the parties, during their negotiation, examined the premises, and observed the water flowing a full stream, supposing it came from the fish-pond.</p> <p>A grant to a third person of a right to draw from a reservoir all the water, except a reasonable supply for the grantor’s use, is admissible in evidence as bearing on the interpretation of a subsequent deed from the same grantor under which the grantee claims the right to draw water from the same reservoir.</p>

Writ oe Entry, on a mortgage. Plea, the general issue, with a brief statement that the condition of the mortgage has not been broken. Motion to reject the brief statement.

Assumpsit, on a note dated March 20, 1867, payable to Mercy Whitcher, or order, and by her indorsed to the plaintiff;. Plea, the statute of limitations, and replication, a new promise. The payee had given the note to the defendant’s wife, excepting $36, which it was understood the defendant was to pay to her within six years of the suit.

Trover, for a pair of oxen and a cow. Pica, tbe general issue, witli a brief statement that Webster, a deputy sheriff, attached and sold the oxen and cow on a writ against tbe plaintiff, and Huckins acted as Webster’s servant. The plaintiff claims the oxen and cow as exempt from attachment, and because tbe attachment was excessive. The referee found tbat Huckins was Webster’s assistant at bis request.

Trespass, for assault and battery. Facts found by a referee. The defendant was employed to teach a district school in Enfield, to commence January 22, 1879. He called upon the school committee, stated his engagement, and requested to be examined.

Wiut of Entry, to foreclose a mortgage upon land in Dorchester. Facts found by the court. Gardner sold the land to Stevens, and took his mortgage for $879, February 21, 1873. Stevens sold the land to Dearborn, with deed of warranty, March 16, 1874, and took his mortgage to secure two notes of $400 each, payable to Stevens or bearer, — one in one year, and one in two years, from date. This is the mortgage in suit.

Petit ton, upon Gen. Laws, c. 75, s. 9, for leave to file a claim against the defendants for damage caused by a defective highway. The plaintiff omitted to file her claim within ten days, because she-did not know that the law required a claim to be filed.

<p>Land cannot be compulsorily appropriated for a highway that would not accommodate the public.</p>

Trespass, quare clausum. Plea, the general issue. The referee found the defendant guilty, assessed the damages, and reported the facts. The locus is a gore of land, containing sixty-five acres one hundred and two rods, in the town of Pittsburg. Prior to 1849 lots had been laid out around this gore, leaving it in its present shape. The lines dividing the lots from it were marked by spotted trees on all four of its sides.

Bill in Equity. Facts agreed. Wentworth’s Location was organized, under Gen. St., c. 48, February 8,1876, by electing officers as required by that statute. On the second Tuesday of March, 1876, town officers were again chosen, and annually since.

Indictment, for catching four trout in the prohibited season from North pond in Stark. The respondent claimed that the proceeding should have been by action of debt for the penalty, and not by indictment, and that the indictment, being within a year after the offence, was premature. The respondent owned the land around North pond, into which small streams run from other land, and the outlet from which runs into the Upper Ammonoosuc river.

Case, to recover the value of certain railroad ties. Facts found by a referee. One Cole, having a contract with the defendants to supply them with railroad ties, contracted with the plaintiff, October 14, 1870, to deliver to him, on the line of the defendants’ road, 3,000 ties, to be subject to the approval of the defendants’ inspector.

Assumpsit, on a negotiable promissory note payable to the defendant and endorsed by him to the plaintiff before maturity. Facts found by a referee. 1. There was no demand of payment upon the maker and notice of the dishonor to the defendant such as is required by the law merchant to fix the liability of an indorser. 2. After the dishonor, the defendant promised the plaintiff to pay the note. 3.

Writ oe Entry, on a mortgage. The plaintiff was allowed to amend so as to embrace a lot of land omitted by mistake from the declaration, but covered by the mortgage; and the defendant excepted.

Trespass, qu. cl., for breaking and entering the plaintiff’s close in Dalton, known as the Ewen farm, on the ninth day of May, 1870, and on divers days between that time and the date of the writ, and building their railroad across the farm, and carrying away sand and gravel, etc. Writ dated May 8, 1876.

BiXjL usr Equity, praying for advice in the construction of the residuary clauses of the will of Arabella Rice, whose estate the plaintiff now represents, and in the disposition of certain real estate. The clauses of tbe will in question are: “ Sixteenth.

Probate Appeal, from a decree allowing a will. Issues on the validity of the will. The three subscribing witnesses, and the scrivener who wrote the will, testified; but nothing was said by either of them or by anybody as to whether there was a seal on the instrument when it was signed by the testator, or at any other time.

Case, for deceit in a sale of land conveyed by the defendant to the plaintiff. In the negotiation, the easterly line of the land was incorrectly pointed out by the defendant, whose land did not extend so far east, by a few inches, as the line he pointed out.

Probate Appeal. Facts found by a referee. The appellant is a creditor of the insolvent estate of Luther Fitz, of which the appellee, the widow, is the administratrix. On rendering her first account, November 14, 1877, there was a balance in her hands of $198.61. Upon her petition, a committee, appointed for that purpose, set off to her dower and homestead in the estate, whose report was accepted June 11, 1878, from which no appeal was taken.

Trespass, for a wagon. The defendants filed a brief statement, alleging that they were elected selectmen of Rye for the year 1877, and that the wagon was taken by one Foss, collector, as a distress for unpaid taxes. The court ordered a verdict for the defendants, and the plaintiff filed the following exceptions: 1.

Debt, on an administrator’s bond. This is the same case as Judge of Probate v. Couch, ante 39.

Bill in Equity. The plaintiff Page was administrator of the estate of John G. Berry, deceased, and the other plaintiffs were heirs of Berry.

Bill in Equity, by the administrators of the estate of Ann R. P. Burroughs against the surviving executor of the will of Charles Burroughs, for an accounting of the income of property bequeathed by the defendant’s testate to Mrs. Burroughs. The defendant claims credit for certain stocks, and rights to take new stock, purchased for Mrs. Burroughs.

<p>Money paid on a contract for the purchase of-land cannot be recovered by one who refuses to complete the contract and take a deed, the other party being in no fault.</p>

Appeal, from the decree of the probate court by the executor of the will of Charles I. Baker, directing him to pay to the defendant, who is the residuary legatee, the sum of $95.29, the balance in the hands of the executor upon settlement of his account of administering the estate of the deceased. The reasons of appeal assigned are, that the decree was made without notice to the executor, and that the estate has not been fully administered.

Bill in Equity (reported in 58 N. H. 880, and in 59 N.TI. 22). Swan has had possession of the mortgaged premises since June 6, 1876.

Petition for a writ of certiorari to quash the record and proceedings of the defendant, a justice of the peace, on the complaint of S., a highway surveyor, for a warrant directing the removal of certain stones and earth in a highway. The petitioners alleged that a hearing was had on the complaint, but that no judgment was rendered thereon, nor was the hearing adjourned, and that at the hearing it appeared that there were no stones or other thing incumbering the highway.

Motion, for a rehearing of the case reported ante 27. The plaintiff, since the former decision, having discovered the deed from Haines to Ladd granting the driftway, now moves for a rehearing, and asks to be allowed to supply the missing link in his chain of title.

Trover, for a lot of hay. Facts found by a referee. One Thompson carried on the farm of one Jenness at the halves. The lease Avas by párol, and it was agreed that the hay should be consumed on the farm. After it was divided, Thompson mortgaged his share to the plaintiff, who subsequently advertised and sold it under his mortgage, and was himself the purchaser.

Assumpsit. The defendant filed in set-off an account for services as a lawyer. The plaintiff, an executrix, did not elect to testify. Subject to exception, the court refused to permit the defendant to put in evidence his hook of accounts supported by his suppletory oath. Verdict for the plaintiff.

<p>Appeal, by a resident of Dover, from the refusal of the tax' 1 assessors of Dover to abate a tax assessed by them upon his deposit ^in a Massachusetts savings-bank.</p>

Probate Appeal. The plaintiff held against the deceased, John T. Gibbs, a note for ten thousand dollars, which he indorsed and delivered before its maturity to Marx & Son. The estate was administered as insolvent. Marx & Son presented the note to the commissioner, by whom it was disallowed; and the plaintiff appealed.

Case, for injury upon a highway. The ad damnum in the writ exceeded $100, and the plaintiff’s counsel stating that he did not claim more than $100, the cause was referred against the defendants’ objection. The referee awarded $150. The plaintiff remitting the amount in excess of $100, the court ordered judgment for the plaintiff for that sum, and the defendants excepted.

Assumpsit, for services in nursing, and for boarding the defendant’s testate. When the services were rendered, the plaintiff’s husband, a son of the deceased, was his tenant, managing his farm upon shares. They all occupied the same house, the deceased living apart from the others constituting a separate family. The referee found an “ implied promise of the deceased to pay for the services,” and awarded damages. Judgment was ordered on the report, and the defendant excepted.

Replevin, for a piano. The declaration alleged that the defendant unlawfully took the piano. Plea, non cepit, with a brief statement that the piano was the property of one M. The evidence tended to show that M., who was the defendant’s daughter, hired the piano of the plaintiffs, and had possession of it during several years. She paid $50 as rent, and for the same purpose gave the plaintiffs a note which her father had given her, upon which the plaintiffs have received $35.

Foreign Attachment. The trustee boarded with the defendant at the agreed price of $5 a week. About the first of each month he gave his promissory note to the defendant for the price of a month’s board in advance, at the expiration of the month sometimes paying and taking up the note, and sometimes paying the money for a month’s board in advance, and allowing the note to remain. This arrangement was made for the purpose of defeating the trustee process.

Petition, for a highway in Laconia, beginning at a hub on Baldwin street, and running southerly to a point on Pine street. On this petition the commissioners laid out a highway beginning at a described hub, and running by certain southerly courses to Pine street.

Indictment, under Gen. Laws, c. 275, s. 1, for obtaining by false pretences an acquittance of an attachment. Motion to quash the indictment because it does not allege that the acquittance was in writing.

The ground where the tent stood belonged to the Boston & Maine Railroad, and by its permission, without rent, was occupied and controlled by the Alton Bay Camp-Meeting Association, by whose consent the tent, which was in fact a wooden building, was erected. At the close of the evidence, the defendant moved for a nonsuit, on the ground that the tent was a personal chattel, for being dispossessed of which the plaintiff could not maintain trespass quare clausum.

Appeal. The complaint is brought under s. 9, c. 273 of the Gen. Laws. The respondent kept a booth or tent, and sold lager beer, cigars, and other goods within two miles of the Weirs camp ground, in Laconia, during the session of the New Hampshire State Temperance Camp-Meeting, which began its fourth annual session August 27, 1879.

Bill in Equity, for a decree that the defendants issue a paid-up policy upon the life of Sarah Appleton, one of the plaintiffs. Facts found by a referee. From 1870 to February 13, 1878, the defendants were doing business in New Hampshire as an insurance company. Their agent in this state was C. W. Moore, who resided and had his office in Concord. In 1870 the plaintiff Sarah took a policy upon her own life for $2,500.

Debt, upon a probate bond signed by Grant as principal, and Sanders and Dow as sureties. On the 19th day of April, 1870, Grant was appointed guardian of two minors, and gave the bond in suit. Grant settled his account in the probate court at the June term, 1876, and never before. His sureties took no part in the settlement.

Assumpsit, to recover of tlie defendant, wlio is executrix of the will of Elisha Goodwin, Jr., deceased, the sum of $100, and interest from March 19, 1878, being the amount of an annuity bequeathed to the plaintiff by the defendant’s testate; also the sum of $15.75 and interest from March 19, 1878, being the amount of an annuity bequeathed by the defendant’s testate to Betsey Goodwin, wife of the plaintiff, for the proportionate part of one year before her decease.

AsSHMPSrT, to recover a balance due for cutting and hauling spruce lumber. Writ dated May 27, 1875, and attachment made on the following day. Facts found by a referee.

Trespass, quare clausum. The referee found that cattle whose owner lived in New York, and which were kept on the farm of the defendant, and under his care and management, broke into the plaintiff’s adjoining close, and there did damage amounting to $12. In the action of which this is a review, the plaintiff recovered judgment for $30, which was satisfied. The court ordered judgment on the report for the defendant for $18 damages and $18 costs.

Debt, on a bond. Judgment on the verdict for the plaintiffs was ordered at the December term, 1879. Ante 345.

Trover, for a horse attached by the defendant, and claimed by the plaintiff as exempt. Facts found by a referee. Before February 10, 1879, the plaintiff used the horse in his staging business between New London and Bradford. February 9, he abandoned that business, and determined to seek other occupation.

Petition, for the assessment of damages under the flowage law. At the April term, 1879, there was a jury trial, and a verdict. The defendant’s exceptions taken at the trial were overruled at the December term, 1879. Ante 882. At the April term, 1880,' the defendant moved in arrest of judgment on the ground that the flowage act (G. L., c. 141, ss. 15-19) is in conflict with the constitutions of New Hampshire and of the United States.

Case, for killing the plaintiff’s mare, through the neglect of the defendants to maintain a sufficient fence between their railroad and the highway. The plaintiff, knowing the want of a fence, turned his mare into the highway to feed, and she wandered at large and unattended in the highway within the limits of the plaintiff’s farm and upon the railroad, and was overtaken by the defendants’ cars and killed.

<p>The defendants’ lot (with a portion of the plaintiff's) was conveyed, July 2, 1831, by one Kastman to Sarah Peabody, and by her, Aug. 19, 1841, to one Colby, and by Colby, April 3, 1858, to one Tay, and, June 2, 1865, by Tay’s administrators to the defendants.</p> <p>May 30, 1833, Eastman’s heirs conveyed the lot on which the spring is located to one Ladd. He owned it until July 24, 1858, when it was set off on execution against him, and it is now owned by tlie plaintiff. There was no reservation of a right in the spring, either in the set-off or in the subsequent conveyances. Soon after the conveyance to Ladd, he gave Mrs. Peabody the right to the spring, saying to her that “ if she would dig it out, and stone it up, and lay a pipe to convey water to her house, she might have it in welcome.” She did dig it out, stone it up, and lay the pipe; and the water has continued to ran from that time until some time in the summer or fall of 1874, and the defendants and their grantors have occasionally entered to make such repairs as were necessary to keep the water running, without objection or opposition. It did not appear that any of the owners of the Ladd land, subsequent to Ladd, had any knowledge of the existence of the aqueduct, or of any claim or right to draw water from the spring, until this controversy arose.</p> <p>The defendants claim a right to the spring and aqueduct, with a right to maintain the same under the gift from Ladd to Peabody, and by prescription. The referee found for the plaintiff.</p>

Assumpsit. Writ dated December 27, 1879. Facts found by tbe court. October 31, 1879, the defendants bought goods of the plaintiffs, and they were charged on the plaintiffs’ books. December 2,1879, the defendants gave the plaintiffs their notes, — one on thirty and the other on sixty days, — payable to the order of the plaintiffs, for the same amount as the goods.

Trespass, for the caption and conversion of a wagon. The defendants justified under an attachment in July, 1.879. Facts found by a referee. The wagon was the only one owned by the plaintiff. He used it for ordinary family purposes, and in 1878 and 1879 he used the hind wheels in connection with a rack and other wheels to draw the hay cut on his farm to the barn, and in harvesting other crops.

Petition, for leave to appeal from a decree of the probate court. Facts found by a referee. The plaintiff, Achsah C. Wadleigh, is the defendant’s ward. Her petition for a revocation of the guardianship was dismissed by the probate court. She intended to take an appeal, and at her instance the judge fixed the amount of the appeal bond, but she was unable to obtain the required sureties, having no means to secure them, all her property being in the hands of her guardian.

Replevin, for a cow unlawfully detained. Plea of property in the defendant. The referee, to whom the case was submitted, found that the defendant wrongfully detained the cow.

Trespass, quare clausum. Plea, the general issue, with a brief statement of soil and freehold. Facts 'found by a referee. The deeds through which the plaintiff derived his title described his land as bounded in part by a line running easterly to Strafford, thence southerly to the corner of a lot, thence westerly to the south-west corner of Samuel and Reuben Brown’s land.

<p>A sheriff is not liable for the loss of property attached by his deputy, unless the loss is occasioned by the deputy’s want of ordinary care.</p> <p>A creditor, at whose suit property is attached, assenting, with a full knowledge of the circumstances, to the attaching officer’s leaving it in the care of a keeper, is estopped from claiming that a loss of the property thereby was from the negligent conduct of the officer.</p>

<p>An action at law cannot be maintained for a mere conspiracy to do a wrong.</p> <p>An action for damages cannot be maintained against one for procuring false testimony in the trial of a suit, in which he is an adverse party, so long as the judgment obtained by the false testimony remains, nor against a witness for perjury in such trial.</p>

Trover, for a sewing-machine. Plea, the general issue. The referee found that the plaintiff purchased the machine of H., and at the time of the alleged conversion owed for a part of the purchase price. The machine being injured in the delivery, H. promised to repair it.

Foreign Attachment. Facts found by the court. In August, 1879, Newman, by a parol contract, engaged to build for the trustees, Clough and Y oung, upon land owned by them, a dwelling-house, according to certain plans and specifications, furnishing all the labor and materials, for the sum of $1,600. The trustees were to own the house in equal shares.

Whit ok Entby. The plaintiff claims under a deed from Samuel Towle, executed December 81, 1847, the demanded premises being then subject to the life estate of one N., who died March 18, 1872. One of the defendants claims title as the widow of Samuel, and the other as his son and heir. Samuel died April 12, 1872. The evidence tended to show that Samuel left home on the morning of December 31, 1847, and returned in the evening much intoxicated.

Assumpsit. Plea, the statute of limitations. Replication, a new promise within six years. One C, having the claim to collect, called on the defendant and informed him that something must be done about it, and asked him what he would do.

Petition, under Gen. Laws, c. 75, s. 9, for leave to file the statement required by s. 7. Facts found at the trial term. The plaintiff was confined to his house for' more than ten days after an accident upon a highway, from the injuries then received. He was not unconscious, nor unable to relate the circumstances of the accident, nor unable to describe the locality.

Writ ok Entry, on a mortgage of land and buildings in Concord. The plaintiff’s mortgage and debt were duly proved. The defendant set up a tax title under a sale for non-payment of taxes assessed on the premises in 1877 as non-resident. During the year 1877, a tenant lived in the house and occupied the land. The plaintiff requested the court to instruct the jury that the property should have been taxed as resident, and that being taxed as nonresident the tax was invalid.

Trespass, for assault and battery and false imprisonment. Plea, the general issue, with a brief statement as follows: “At the time and place of the alleged trespass, the defendant was a police officer, duly qualified, of the city of Manchester, and whatever he did in the premises he did while on duty as such officer, and in the discharge of his duties as such officer-; that he then and there arrested the plaintiff for and while violating s. 10, 0. 7, of the ordinances of…

<p>No briefs furnished.</p>

Bill in Equity, for an injunction. Case agreed. The facts are the same as those reported in Dow v. Edes, 58 N. H. 193, the defendant Scribner being one of the defendants in that case.

Assumpsit, for a breach'of warranty. The referee to whom the case was submitted found that the defendant sold the plaintiff a horse, and warranted it to be sound; that the horse was unsound ; and that the plaintiff was entitled to recover fifty dollars damages. The court ordered judgment on the report for the plaintiff, and the defendant excepted.'