Volume 60 — New Hampshire Reports

<p>Petition for a temporary injunction, granted by a justice in vacation, and adjourned into the law term. Facts agreed. The plaintiffs are citizens, voters, and tax-payers, and the defendants are a special committee of the city government, of Manchester. December 19, 1879, the mayor and aldermen laid out a highway fifty feet wide in extension of Bridge street across Merrimack river. February 17, 1880, the city councils resolved that a special committee be appointed, with full power to contract for the building of a bridge across the river on Bridge street, at a cost not exceeding</p> <p>$50,000, according to a plan presented by tbe city engineer, adopted by tbe city councils, and known as tbe middle level plan. Tbe defendants are the committee.</p> <p>Section 18 of chapter 46 of the Gen. Laws provides that “ The mayor and aldermen shall issue their warrant for a general meeting of the inhabitants, for any constitutional or legal purpose, whenever requested to dp so in writing by one hundred legal voters.” Under this statute there was a meeting of the inhabitants of Manchester May 8, 1880, who voted “ that in their opinion said bridge should be built upon the lower level, as it is called, or near thereto, and substantially thereon, and at as little expense as it can be done and made convenient for all parties, safe and enduring, and that the city government be requested and instructed so to construct said bridge, if it can legally be done; that the plan proposed by the committee of the city government was unwise and far too expensive, and if unauthorized, as in the opinion of this meeting it was, the mayor is requested to employ counsel, if necessary, and secure a perpetual injunction * * * upon the contract and the parties thereto, and any and all persons attempting to act under it; that not more than $20,000 or $25,000 should be added to the tax-list this year for the construction of such bridge, and the balance be raised on credit.” And the meeting appointed a committee to represent the action of the meeting to the city government, and to confer with them or any committee appointed by them upon the speedy erection of such bridge.</p> <p>June 1, 1880, by vote of the city councils, the defendants were authorized and directed to contract for an iron bridge across the river, and iron bridges across the canals and over the street on the west side of the river, with iron approaches, all the bridges and! approaches to be forty feet wide, and to make such changes in the middle level plan, “ in accordance with this resolution,” as in their judgment would be for the best interests of the city, the bridges to' be finished at an expense to the city not exceeding $60,000; and the committee were “authorized to contract for such a bridge across the river as will provide a roadway or lower deck as a way to the Amoskeag Manufacturing Company and the Stark Mills, provided said companies contribute the sum of $7,000 for the same.”</p>

. Bill in Equity, by Webster and Drake, against Hall and the county of Hillsborough. Facts found by a referee. In pursuance of an agreement between the plaintiff's and Hall jointly to institute and carry on prosecutions for violations of the liquor law, Hall made complaints, and the plaintiffs testified before the grand jury. Ten indictments were found, and ten fines were paid to the county.

Debt, for the plaintiffs distributive share of an estate. Subject to exception, the defendant proved that before the decree of distribution was made he paid the plaintiff more than her decreed share, and took her receipt in full. The payment was not charged in his account on which the decree was made, and was not recited in the decree. Verdict for the defendant.

Case. Facts agreed. This is an action to recover damages, paid by the plaintiffs, upon a judgment recovered by Charles H. Varney against the city of Manchester for injuries sustained by said Varney by reason of an incumbrance upon a public highway. The incumbrance was lumber placed in the highway by the defendant, who was seasonably notified in writing of said suit, and requested to defend it.

<p>Proof that the defendant acted as sheriff at a certain time is prima facie evidence of liis official position at that time, in an action against him.</p> <p>An officer having in his hands the proceeds arising from a sale, under the statute, of goods attached on a writ, is bound to levy on the same without specific directions, when the execution in the action is given to him.</p> <p>An officer’s return is not conclusive as to the amount of funds in his hands or as to his fees, in a suit against him in which he relies upon it to prove his case.</p> <p>A sheriff is not liable for the services of a keeper appointed by his deputy.</p>

Libel EOR. divorce, upon which a decree in favor of the libellant was made at the May term, 1878, and an award of alimony, to the amount of 11,500. At the January term, 1879, the libellee filed his petition for a rehearing, and a reversal or modification of said decree.

Assumpsit, upon a note, dated March 5, 1877, payable to tbe order of the plaintiff, and signed by one Fairfield as principal and tbe defendant as surety. Facts found by a referee. July 3, 1872, Fairfield borrowed §300, and gave a note for that amount, signed by himself as principal and the defendant as surety. Fairfield agreed to pay 10 per cent, interest annually, and §12 was deducted, Fairfield receiving only §288. At the end of one year he paid §12 more.

Assumpsit, to recover the amount of a note for $1,000, signed by the defendants as sureties for one A. A. Currier.

Debt, upon the statute, for double damages for injuries to the plaintiff’s adopted minor child from the bite of the defendant’s dog. A second count declares upon the same injuries to the plaintiff’s servant. Subject to exception, the plaintiff amended his declaration by adding a count in case for the same injuries to the plaintiff’s adopted minor child. The child died from the effects of the biting about ten weeks after he was bitten.

Case, for libel in the defendants’ newspaper. The defence was, that the publication was on a lawful occasion, in good faitb, and with probable cause for believing its truth. Subject to the defendants’ exception, the plaintiff was permitted to testify that he had a wife and child.

Facts found by a referee. The appellant was the wife of George Gray, deceased, and, December 25, 1877, she was appointed administratrix on his estate, and took upon herself that trust. Subsequentty, at the instance of one of the heirs, she was cited to settle her account as administratrix, June 24, 1879. She appeared, and at that time filed a petition to prove a lost will of the deceased in common form.

Trespass, for assault and false imprisonment. Plea,V&e general issue, with a brief statement. The plaintiff kept a small store in Manchester. Putnam, one of the defendants, was a county commissioner. The evidence tended to show that the plaintiff was afflicted with insane delusions, and disturbed her neighbors and the inmates of the house where she boarded. Physicians examined her, and said she ought to be cared for.

Replevin for a wagon. Facts found by a referee. The plaintiff bought the wagon of one Taylox’, and paid for it January ■ 23, 1877, but having no place to store it through the winter, he told Taylor that he et>uld use it as he might have occasion if he would allow it to remain in his shed, to which Taylor assented. Sleighing disappeared sooix after, and the plaintiff took the wagon and used it several days, during which time he offered it for sale.

on the common counts for goods sold, and a special countoirar novation. The plaintiff’s evidence tended to show that the goods were purchased by the defendant Lucier, with whom C., the other defendant, afterwards formed the partnership of Lucier & Có. The firm having become the owners of Lucier’s stock in trade, and notes and accounts, undertook to pay his debts, and so informed the plaintiff, who assented to the arrangement.

Trover, for two horses. Facts found by a referee. In June, 1878, Samuel H. Lathe, a brother of the plaintiff, living in Maid-stone, Vt., went to Bethlehem, N. H., and engaged in the livery business at that place, with the intention of continuing therein during the season of summer travel, about three months, for the ensuing three years.

Assumpsit, upon special counts, for the breach of a contract to lease to the plaintiff for ten years a lot of land, with buildings to be erected thereon by the defendant suitable for a carriage manufactory, at an annual rent of six per cent, upon the cost. The plaintiff introduced parol evidence of the contract alleged, and of an agreement that the buildings should be two stories high, with frames, and brick walls four inches thick.

Foreign Attachment. The plaintiffs seek to charge the trustee for the wages of the defendant. The claimant demands the wages by virtue of a written assignment under seal, made to him by the defendant and accepted by the trustee, with whom the defendant then had a contract for labor, and filed in the clerk’s office of the city where the parties resided, before any of the wages in question were earned.

<p>The common-law rule prevails in this state that a joint judgment against two defendants is void where only one had notice of the suit.</p> <p>A judgment rendered in another state, and valid by the laws of such state, is not valid in this state unless it would have been valid if rendered in this state.</p> <p>The constitution and laws of the United States give a judgment rendered in another state no more force and effect in this state than it would have if it had been rendered in this state.</p> <p>The defendant in a suit brought in this state upon a judgment recovered in another state, valid by the laws of such state, but which would have been invalid if recovered in this state, is not estopped to set up the invalidity of such judgment by reason of having used it to defeat the plaintiff’s recovering a second judgment in the same state upon the same demand upon which the first was rendered.</p> <p>A judgment rendered in such other state, that a defendant under the circumstances stated in the last syllabus is estopped to deny the validity of the first judgment, does not preclude the defendant from setting up its invalidity in a suit brought in this state upon such judgment.</p>

Assumpsit, to recover the sum of $1,923.75 received by the defendant upon a policy of insurance on the life of the defendant’s testate, Henry Holt. Facts agreed. The plaintiff is administrator of the estate of Sarah F. Holt, who was the wife of Henry Holt. He died August 17, 1876, tesate, his wife being made residuary legatee; but his estate being-insolvent, nothing- passed by his will. The defendant is administrator of his estate.

Assumpsit for relief furnished a pauper, being the same case reported in 58 N. H. 206. Facts found by a referee, who reported for the plaintiff, stating no facts raising any new question of law.

Trover, for two horses, two harnesses, and a wagon. Facts found by a referee. June 26. 1878, H. F. Marcy mortgaged the propert}*- in controversy to W. S. Bonney to secure a note for $260, and the mortgage was duly recorded. June 27, 1878, Bonney indorsed the Marcy note, and delivered it with the mortgage to the plaintiff to secure his note to the plaintiff for $100 borrowed money.

Bill in Equity, by Mrs. Buss against Mrs. Woodward and Mr. Forbush for redemption of land.

Trover, for a horse. Facts found by a referee. The plaintiff claimed title under a mortgage of certain articles of personal property, among which was “ one bay mare seventeen years old.” The mortgage was dated February 2, 1877. The mare was with foal when the mortgage was made, and she had a colt in June, 1877. The defendant attached this colt in May, 1879, on a writ against the mortgagor, and this is the tort complained of.

Replevin, for a trunk and contents. Facts found by a referee. The trunk and contents belonged to the plaintiff in December, 1878. He then resided in Boston and boarded with S., and then owed her twenty-one dollars for board. S. retained the trunk, claiming a lien on it under the provisions of the Mass. Gen. Stats., c. 157. The plaintiff called on S. for the trunk, but she refused to give it up until her bill for board was paid.

Assumpsit, on a contract made in Massachusetts, where both parties resided when the suit was commenced, and still reside. Facts agreed. The action was commenced June 21, 1879, and tbe defendant’s real estate in this county attached on the same day.

Covenant .broken, on a policy of insurance. Plea, the general issue.

TiiOVKli. Facts found by a referee. The defendant claimed title to the property,,as assignee of one K. by virtue of a mortgage from one S., dated January ¿6,1876. The plaintiff’s title is under a mortgage from S. subsequent to that date. The oath to the mortgage to K. was subscribed and sworn to b)^ both parties, and the mortgage was for a good consideration.

Case. Facts found by a referee. The plaintiff was employed by the Keene Driving-Bark Association to sell pools or bets on the trotting of horses on its grounds in August, 1875. A commission of one dollar on each sale was reserved, to be divided between the association and the plaintiff in compensation of his services.

Assumpsit, on a policy of insurance. If acts agreed. March 20, 1872, the defendants insured the plaintiff’s buildings for five years, in the sum of $500, the premises being subject to two mortgages, and the insurance, in case of loss, made payable to the mortgagees as their interest might appear.

Casis, for obstructing a water-course. The action was referred by tlie agreement of tlie parties, the right of trial by jury being reserved. The referee found the defendants guilty, and assessed the damages. At the request of the plaintiff, he stated specifically the facts found and his legal conclusions. Subject to exception, the whole report was read to the jury.

Assumpsit, for goods sold. The plaintiffs had been former partners in business, and sold the goods to the defendant, who owed for them when the suit was brought. After the action was entered and before the next term of court, Messer, one of the plaintiffs, indorsed upon the summons served on the defendant, over the partnership signature, made by him, that all claims embodied in the suit were settled, and the action was to tóe entered neither party at the next term of court.

Case. Demurrer to the declaration in which the following facts were alleged: — The plaintiffs are a manufacturing corporation having for its object a dividend of profits, and commenced business in 1871. Dunsmore was elected director in 1871 and Willard in 1878. and entered upon the discharge of their duties, and have continued so to act by virtue of successive elections until the present time.

<p>Appeal frozn the assessment of the plaintiffs’ tax of 1879. Facts found by referees.</p>

Assumpsit, upon Gen. Stats., e. 128, to recover double tbe value of a fence appraised by tbe fence-viewers, and tbeir fees. Facts found by a referee. Tbe defendant is tbe actual occupant of land north of and adjoining tbe plaintiff’s land. In 1876, by a writing undei seal, tbey made a division of tbe partition fence, and agreed to build according to tbe division.

The defendants in the second and third actions are also defendants in the first. Pacts found by an auditor. The first action is assumpsit on a written guaranty.

Troyer, for 200 cords of hemlock bark, and Assumpsit, for $1,000, the proceeds of the bark. Demurrer, for a misjoinder of counts in different forms of action.

Bill in Equity for partition. William W. Stickney purchased for his mother, Lucinda Stickney, and Cyrus W. Smith, defendants, with their funds and at their request, a lot of land in Lebanon, taking the deed in his own name. Mrs. Stickney moved into the old house upon the premises soon after, and occupied it until it was repaired.

Assumpsit. The defendant filed in set-off a note for $50, signed by the plaintiff. Facts found by a referee. The defendant, detecting the plaintiff, one evening, stealing corn and potatoes from the defendant’s field, charged him with the previous commission of other similar larcenies, of which the plaintiff claimed to be innocent, but of which he was in fact guilty.

<p>The discontinuance of an action against one defendant after a trial and report by an auditor, the sole controversy before the auditor having been as to the liability of the other defendant, is not a sufficient ground for excluding the auditor’s report as evidence in a subsequent trial by jury.</p> <p>The introduction of an auditor’s report in evidence, in a jury trial, does not shift the burden of proof.</p>

<p>In an action of tort, tho plaintiff may amend his writ before trial by reducing the ad damnum, and, if this is reduced to $100, the action may be referred without the consent of tho parties.</p>

Case, for damages from a defective highway. The plaintiff’s horses, attached to a heavily loaded wagon, were thrown down and injured while passing down a steep hill upon the highway. The defendant claimed that the plaintiff was not in the exercise of ordinary care in not chaining his wagon-wheel before descending the hill.

Foreign Attachment. Facts found by the court. The defendant’s buildings were insured by the trustee, and burned June 28,1878. Writ dated July 15, 1878. The defendant brought no suit for the recovery of the loss, and the time within which he can has by the terms of the policy expired. The plaintiff took the deposition of the trustee, and elected to try the question of the trustee’s liability by the jury.

Case, for deceit in the sale and transfer of notes and a mortgage. The defendant, at the house of the plaintiff, in Quincy, Mass., offered the plaintiff, in payment of the balance due on a farm and other land sold, three promissory notes, amounting to $1,700,.signed by one Austin, and secured by a mortgage of land in Lynn, Mass., subject to a prior mortgage of about $1,500.

Appeal, from a commissioner of insolvency, to recover a balance of §784.40, money paid by the plaintiff to the deceased. Facts found by a referee. In the fall of 1871 the plaintiff contemplated the erection of a hotel at Lebanon.

Upon the foregoing facts, the referee finds that the plaintiff is entitled to recover of the defendant the balance due upon the note.

Motion, by the defendants, selectmen of Dorchester, to dissolve a temporary injunction restraining them from dismissing, settling, or interfering with tbe prosecution of certain suits at law brought by the plaintiff, claiming to act as agent of the town, and for permission to assume the control of the same. In the warrant for the town-meeting held in Dorchester in March, 1879, was the following : “Art. 10.

<p>Appeal, for the abatement of a tax assessed to the plaintiffs in 1879. Facts found by a referee.</p>

Case, for damage done by sawdust discharged from the defendants’ mill into Dead river, and carried down by the stream to the plaintiff’s land. The defendants’ mill is driven by steam, and its sawdust is carried by a belt and box to the river. In the river, at the lower end of the plaintiff’s land, is a dam, the gate of which, before 1873, was generally closed during the winter, but not so as to flow the upper end of his land.

Assumpsit. The plaintiff’s evidence tended to show that he- and the defendant had a common interest in building and maintaining a certain dam, but the plaintiff admitted that the defendant had the first right to use the water of the stream across which the dam was built.

<p>A report of a commissioner of insolvency in Vermont in favor of an administrator there, accepted and recorded by the probate court to which it is returned, and acquiesced in by the parties, is such a judgment that the same person as administrator in this state may plead it in bar to the maintenance of a suit here by the same claimant upon the same cause of action.</p>

Foreign Attachment. The writ was served on Farnham, one of the trustees, August 2, 1875, and entered August term, 1875. Counsel appeared at that term for all the defendants and trustees, and the action was continued from term to term until February term, 1880, when it was discovered that Farnham’s name was not inserted in the writ as trustee. The plaintiffs moved to amend by inserting it.

Assumpsit, on the common counts for the price of land deeded by the plaintiff to the defendant. Plea, the general issue. The suit was brought by C. Bailey as next friend of the plaintiff, who was described in the writ as an insane person. E. F. Bailey was appointed guardian ad litem. Neither C. Bailey, E. F. Bailey, nor the plaintiff testified. The defendant offered to testify to occurrences which happened when the plaintiff was sane.

Petition, for the abatement of a tax assessed by the defendant’s assessors upon the plaintiffs’ logs, which were cut in the unorg-anized places, College Grant and Dixville, and which, on the first day of April, were in those places upon the Swift Diamond river.

Case, for injuries received from a defective highway. The plaintiff was unable to attend the trial, and her motion that the jury be allowed to go to her house and see her was denied. After-wards, when the jury were near the plaintiff’s house viewing the highway, by order of the court, her counsel in the presence of the jury proposed that they should go into the house and see her if the defendants’ counsel would consent.

Assumpsit, by an indorsee of a promissory note against the maker. The plaintiff had a verdict, and the defendant moved for a new trial. The facts are given in the opinion.

Assumpsit. Arthur II. Aldrich, in a suit against the plaintiff, recovered judgment, which the plaintiff satisfied by payment to the defendant, Arthur’s attorney. The defendant, in good faith, applied a part of the money in the payment of costs and of other claims against Arthur, by his direction, and gave him credit for the balance on his own account against him, amounting to a larger sum.

<p>Confidential communications between attorney and client are not to be revealed by the attorney; but the privilege is that of the client and not of the attorney, and may be waived.</p>

Trespass, for beating and injuring tbe plaintiff’s mare witb an axe. Tbe action was defaulted, and referred to a referee to assess tbe damages, wbo reported that tbe defendant committed tbe injury as alleged, and accompanied tbe act witb sucb malicious insults as should enhance tbe damages, and awarded that tbe plaintiff recover the sum of forty dollars. The mare before tbe injury was lame, and of small value.

Assumpsit, on a policy of insurance for $3,000, issued to the plaintiff on Ms bouse, “payable in case of loss to S. $. Thompson as his mortgage claim may appear.” Facts agreed. After the policy was issued, and before the loss occurred, the plaintiff and his wife conveyed the farm on which the house stood to their daughter, subject to a mortgage of $1,000 to S. S. Thompson.

Case, for diverting tlie water of a natural stream from tlie plaintiff’s aqueduct.

Petition, upon Gen. Laws, c. 75, s. 9, for leave to file a claim against the defendants for damages caused by a defective highway. The plaintiff resides in Rockingham. The defendants, being a town of Strafford county, moved to dismiss.

Bill in Equity. Facts'found by a referee. George Janvrin married the plaintiff in 1870, having at that time a son and four daughters by a former wife. There was an ante-nuptial agreement that at his decease she should have $1,000 and all household furniture then belonging to him. April 8, 1874, she left him, and filed a libel for divorce against him, alleging extreme cruelty as the cause, which, at the January term, 1878, was dismissed.

Bill in Equity. Facts found by a referee. George Janvrin, by deed dated December 3, 1875, and recorded January 26, 1877, conveyed the premises in question to his son, Albert, and to the two children of Albert, George and Charles.

Assumpsit, for money had and received. Pleas, the general issue and the statute of limitations. Replications: I, that the cause of action accrued within six years; II, a new promise within six years. The actions were tried, on review, before a referee, who, subject to exception, admitted in evidence the report of the auditor made in the original suits.

<p>Requested instructions to the jury are properly refused, if a verdict for the party requesting them could not be sustained upon them.</p> <p>It is no defence to an action to recover the price of a horse, that there was a breach of warranty or deceit in the sale, in a matter equally open to both parties. In such cases, the maxim caveat emptor applies.</p>

Petition for a homestead. The assignee in bankruptcy of the plaintiff’s husband sold to the defendant the right in equity to redeem the homestead premises from a mortgage signed by the bankrupt and his wife, and releasing homestead rights. Subsequently the defendant bought the mortgage, obtained judgment upon it, and took the premises upon a writ of possession.

Case, for injuries from the plaintiff’s horse becoming frightened by the escape of steam from the defendants’ locomotive standing on the railroad track near a highway crossing in Portsmouth. Subject to exception, the plaintiff introduced evidence that horses of other persons had been frightened by locomotives and cars passing near the place of the injury.

<p>A note signed by husband and wife, apparently as joint principals, is not binding on the wife if in fact she signed it as surety for her husband, although the payee supposed she was principal.</p> <p>Her common-law incapacity to be a surety for him being reenacted by-statute (G- L., c. 183, s. 12), she is not estopped to prove that she signed as surety.</p>

Case, for obstructing the plaintiff’s right to take water from a well on the defendant’s land, which right the plaintiff claims is appurtenant to the premises occupied by him. Facts found by the court. In 1864 one Dore, being the owner of the land now owned by the plaintiff, purchased one undivided third of the Philpot lot, in which the well is located.

<p>When, on a reserved case, a verdict for the plaintiff has been set aside because a motion for a nonsuit made at the trial should have been granted, for want of evidence which the plaintiff may be able to produce, the plaintiff is ordinarily entitled to a new trial.</p>

Foreign Attachment. Facts found by a referee. From May, 1871, until April 1, 1875, the defendant Putnam was engaged in manufacturing glass ware under the name of the Lyndeborough Glass Co. April 1, 1875, Tripp & Conant took possession of the glass works under a mortgage from Putnam, and appointed him their agent.

<p>A person voluntarily furnishing support to an orphan child, and having no contract with its deceased parent nor with the executor for its support, cannot recover of the executor for the same.</p> <p>Where one party is an executor not electing to testify, ordinarily the adverse party will not he permitted to testify to matters to which the deceased, if living, might testify.</p>

<p>A contract of M., an expressman on the E. Railroad between Great Falls and Boston, to withdraw from that road as expressman on his own account, and to do no express business or in any way be connected with or interested in any express running over that road, and not to do any express business over any other road running between those places, is not broken by his working for daily wages as a messenger on the B. & M. Railroad between the same places in the employment of another expressman.</p>

Indictment, for an assault of an aggravated nature, containing two counts. The first alleged that the assault was „ committed by the defendant E. E. N., and the second, that the other defendants, E. S. N. and J. A. W., “were present, aiding, abetting, and assisting ” him in the assault. The defendants moved to quash for misjoinder, and also that E. S. N. and J. A. W. be discharged, because no offence was charged against them; but the presiding justice denied the motions.

Appeal, from the award of damages by the selectmen, for land taken for a highway. Facts found by referees, who awarded that the plaintiff should recover $400 if the title of the plaintiff extended to the centre of the Winnipiseogee river. He derived his title through one Reeves from Baldwin, who was bounded by the river.

Assumpsit, to recover a balance of accounts. The defendant did nob appear.

<p>An attachment is not dissolved by the filing of a petition in bankruptcy within four months after, when no assignment in bankruptcy has been made and no further proceeding had upon the petition.</p> <p>A sheriff is liable for the default of his deputy in neglecting to levy an execution in his hands upon, or to make a seasonable demand upon, a receiptor, for property, under a valid attachment in the suit.</p> <p>Case, against a sheriff, for the default of his deputy, who, on a writ for a valid debt, had, in 1876, attached the property of the debtor and obtained a responsible receiptor, and who, within thirty days after judgment in the suit, had received an execution, with a request to levy the same upon the attached property, and did not make the levy nor a demand on the receiptor. He forgot to do so, and the demand was thereby lost. Within four months after the attachment, and more than thirty days after the judgment, the debtor filed his petition in bankruptcy, upon which no further proceedings have been had. The facts not being in dispute, a verdict for the plaintiff was ordered.</p>

Indictment, for selling a pint of spirituous liquor to one Gil-man. Marvin C. Brown, a registered pharmacist, kejit a drag store at Meredith. The defendant was his assistant, and a silent partner in the concern.

Petition for a highway. The petition represented “ that for the accommodation of A. W. Bacheler there is occasion for a private highway in the town of New Hampton, beginning at the bound on the westerly side of the road leading to the house known as the John Hanaford house, southerly and westerly crossing Dickerman’s brook at a point thirty feet south of the old glove-mill bridge, westerly to bounds opposite the westerly side of the road owned by the petitioners * * At the…

<p>Assumpsit, to recover money alleged to have been received by the defendant, as clerk of court, in excess of the legal fees. The cause was committed to a referee; and it appearing that the sums claimed were items contained in the accounts of the defendant as clerk, which had been examined and allowed by the presiding justice at each term of court during the defendant’s term of office, the referee ruled that no fraud being alleged, the accounts could not be reopened in this suit.</p>

<p>Objections to defects of service and entry of a libel for divorce are waived by a general appearance and a motion for a continuance.</p> <p>Libel ror Divorce, commenced by writ of attachment and summons, in the ordinary form of such writs, commanding the defendant to be summoned to answer to the plaintiff “ in a libel for divorce hereunto annexed.” Then followed, as a declaration inserted in the writ, a libel for divorce in the ordinary form, containing a prayer for alimony, and signed by the plaintiff. The writ was dated June 18, 1880, and was served by an attachment and giving a copy to the defendant June 21, 1880. On the first day of the first term, the defendant entered a general appearance on the docket, and moved for a continuance. The motion was argued and denied. Afterwards, within the first four days of the term, the case was tried on its merits; and at the trial, the defendant moved to dismiss because the libel was not filed till the first day of the term, no order of notice was issued, and no legal service made. The court denied the motion, and the defendant excepted.</p>

Libel eoe Divorce. The petition charged extreme cruelty, and specified acts which, if true, would support the charge. A referee reported that the libellant was not entitled to a divorce, and at her request also reported that the libellee, being of sufficient ability, failed in a few instances to make the provision for his wife that he ought, and that upon one occasion, more than five years previous to the libel, he neglected to procure a physician in her sickness.

<p>The plaintiff being charged with feigning an injury, her conduct indicative of pain at a time when she supposed no one was observing her is competent evidence on the question of the genuineness of her suffering. A witness may refresh his recollection by reference to a memorandum made so near the time of the facts recorded that he then knew them ■ to be true.</p> <p>Evidence of the plaintiff’s efforts to procure a lantern is competent on the question of whether there was want of reasonable care in driving in the darkness without a lantern.</p> <p>Evidence of a fact shown by the admissions of a party may be contradicted by a witness knowing the contrary.</p>

Bill in Equity, for the annulment of foreclosure proceedings and of the sale of land, and for a conveyance of the land to the plaintiff. Demurrer. The opinion states the facts.

Debt, on the bond of the defendant Brackett, as treasurer of the Carroll County Five Cents Savings-Bank. The action is brought in the names of the plaintiffs as assignees of the bank in insolvency. The defendants object that the action should be brought in the name of the bank.

Foreign Attachment. The trustee is the wife of the principal defendant. Her deposition as trustee was taken by the plaintiff upon due and legal notice to her, but without notice to the principal defendant or his attorney. Two questions are reserved: (1) whether the wife can be charged as trustee of her husband; (2) whether her deposition was taken upon such notice as to be admissible.

<p>If in any case an action can be maintained against a town to recover back money paid its tax collector to redeem lands sold for the nonpayment of non-resident taxes assessed thereon, it is no ground for such recovery that in the assessment of the taxes the numbers of the lots were by mistake incorrectly stated.</p>

<p>Debt, on Gen. Laws, c. 63. The question of the constitutionality of the statute was reserved.</p>

Bill in Equity, for an adjudication of the conflicting claims of the defendants to a balance remaining in the hands of the plaintiff as trustee under the will of Charles Moody. ■ The following are the material provisions of the will: “2.

Motion, for a recount of the votes cast for treasurer of this county at the last election, and for a trial of the question whether the plaintiff or the defendant was elected. The motion was made by the plaintiff at this term, before the result of the town-clerks’ returns was declared.

Bill in Equity, to foreclose a mortgage of a farm. Facts found by a referee. August 6, 1877, about a week before his death, the testator, Nelson, owning the farm, and living upon it, made an oral bargain with the defendants to sell it to them for $1,800. The bargain was made at his house, where he was confined by his last sickness. Nelson pointed out such boundary lines as were in sight, and correctly described another line that was in the woods out of sight.

Notice of review, returnable at the October term, 1880. Motion by the defendants to dismiss. The writ in the original action was dated September 20, 1877, and entered at the April term, 1878, the ad damnum being $250. At the October term, 1878, the action was referred by agreement, and at the April term, 1880, judgment was rendered on the referee’s report. The plaintiff claims the right of review.

Assumpsit, for a deposit of money claimed to have been paid to the wrong person. A referee found the facts. Twenty-five persons, residents of East Concord, raised money by a fair, for the purpose of procuring a hall there for public entertainments and instruction. They placed the disposition of the money in the hands of an executive committee, and chose the plaintiff treasurer, who deposited the money with the defendants in his name as treasurer of the committee.

Bill in Equity. The defendant demurs generally and specially. The substance of the bill is: Before the summer of 1873, the plaintiff, the defendant, and other persons, owned in common, but with unequal interests, a building called the Concord tent, in Alton, situated upon Alton Bay camp-meeting ground.' The land belonged to the Boston & Maine Railroad.

Petition, of which the following is a copy: To the supreme court, state of New Hampshire, Merrimack, ss. Petition in nature of quo warranto. FJdward Osgood v. John F. Jones.

Foreign Attachment. At a former term the wife of the defendant was admitted by the court to appear as claimant of the funds in the hands of the trustees, and the issue between the plaintiff and the claimant was referred. One of the trustees says in his deposition, in answer to the plaintiffs’ questions, that his firm is owing the defendant for lumber bought by them of him.

Assumpsit, for labor performed and materials furnished by the plaintiff in repairing the defendant’s house. A certain sum was found due the plaintiff by a referee, whose report the plaintiff moved to set aside on the ground that after the trial the referee, without the knowledge of the plaintiff, opened the case, examined the work and materials in controversy in the presence of the defendant, and heard her suggestions with respect to them.

Assumpsit, upon two policies of fire insurance for $1,250 eacb„ Facts found by a referee.

Bill in Equity, against the plaintiff’s alleged copartners, for ■contribution. Facts found by a referee. Held: and never consulted or asked any of the stockholders anything about the business of the store, or the borrowing of money, buying or selling on credit, or the selling out in November, 1876. ' At the time Woodward and Farnum sold to Savage, November, 1876, they and Savage understood that the other stockholders had the right to sell…

Bill in Equity, to set aside the levy of an execution. Facts found by a referee. May 13, 1871, Jane Smith, wife of Robert Smith, being seized in her own right of a tract of land called the “ Little lot,” sold it to the plaintiff for $800, and intended and believed that she did then convey it in fee simple to him. But the deed, by mistake of the scrivener, was executed by her husband, in which she merely released dower and homstead.

Bill in Equity, by tbe bondholders of the M. & K. R. for the adjustment of priorities, and the foreclosure of the mortgage.

<p>The constitution of New Hampshire does not exempt church property from taxation.</p>

Covenant. Plea, non est factum, with a brief statement that the deed declared on did not convey to or confer upon the plaintiff the right to enter upon the defendant’s land, or to take water from the defendant’s aqueduct, as alleged. Facts found by a referee.

Bill in Equity. Facts found by a referee. March 1,1877, the plaintiff agreed to purchase of PI., the defendant’s intestate, the premises described in the bill, for $700, paying $331 cash, and giving her note for $369, payable within two years with interest, at the same time taking H.’s bond to convey the premises to her upon payment of the note and interest within two years.

Appeal, from a commissioner of insolvency, by W. H. T. and heirs. The report of the commissioner, as originally returned to the probate court, erroneously stated the plaintiffs’ claim at less than the sum actually allowed, and upon petition it was recommitted for a correction of the error.

Assumpsit, to recover the balance due on two notes signed by the defendant, payable to the order of Franklin Pierce, deceased, and. endorsed by his executor to the plaintiff. Plea, general issue. There was an indoi-sement of a partial payment on each of the notes, which the evidence tended to show was made in pursuance of the written common-law award of a referee mutually chosen by the defendant and the executor.

Bill in Equity, involving the same subject-matter generally as is reported, in the case between the same parties in 59 N. II. 409, and cases there referred to. From the bill, answer, and agreed statement of facts, the following additional facts appeared: At the time the original suit was commenced, in 1872, the defendants owned $160,000 of the plaintiffs’ bonds, which they sur.rendered in .April, 1877, under a decree of the court.

Assumpsit, for the support of the plaintiff’s daughter since July 14, 1877. Facts found by a referee. The plaintiff has had a settlement in Chesterfield since 1860. His daughter is thirty-two years old, and ha.s a settlement in C. derived under him. She was rendered imbecile from disease in infancy, is helpless, and always has been poor, and unable to support herself.

Motion byr the plaintiff that the deputy sheriff amend his return upon an execution issued in this action against the defendant. The following is the return: “ Cheshire ss. October 10, 1879.

Bill in Equity, against the defendants, as stockholders in the Charlestown Boot & Shoe Company, located in Charlestown. Facts found by a referee. The company was incorporated in 1871, having for its object a dividend of profits, with a capital stock fixed at $25,000, of which $19,900 only has been paid in.

Case, for deceit in the purchase of hay. Facts found by a referee. The defendant told the plaintiff he would purchase the hay if the plaintiff would trust him, to which the plaintiff replied that he would take his note for the hay if he would make it appear that he owned certain real and personal estate which the defendant then described and represented that he owned, but which he did not own.

Bill in Equity, for the possession of land. Joseph Perkins, husband of the plaintiff, conveyed land to Abram, his son, and at the same time Abram reconveyed the premises to Joseph in mortgage, conditioned that the mortgagor and his heirs should support Joseph and his wife during their lives and the life of the survivor. Joseph died, the plaintiff surviving.

Action oe Review, by the defendant, to recover $57.55, being the amount of the judgment against him in the original action. The plaintiff in that action sued for $107. At the trial the parties agreed that if the plaintiff could recover anything it would be $57.55. To show that the amount in controversy in this action of review is less than $100, the defendant offered to prove that agreement, and moved to refer the action against the plaintiff’s objection.

Case. The declaration alleges that the plaintiff, while riding along a public highway in the village of Newport, was injured by the falling of a flag-staff, which the defendants, by their selectmen/ agents, and employés, were taking down; that they conducted so\ negligently and carelessly that the flag-staff suddenly fell across’ the highway, striking the carriage in which she was riding. The defendant demurred.

Bill in Equity, by the executor of the will of Joseph Tilton, for the interpretation of the third item of the will. Facts found by the court. The third item is, “ I give and bequeath to the Bible Society, Foreign Mission Society, the Home Mission Society, and the Tract Society, five hundred dollars each.” There are no societies known by those names.

Assumpsit. This is one of seven suits at law, brought by the plaintiffs, to recover money alleged to have been wrongfully paid. The defendant produced an agreement in writing, properly entitled, and signed by himself and one Norris, as agent of the plaintiffs, in which it was agreed that the suit having been settled, should be entered “ neither party;” and the defendant moved that the agreement be filed by the clerk, and the action so entered.

Trover, for' a horse. Plea, that the defendant attached it on mesne process against the plaintiff; replication, that it was required for farming or teaming purposes, or other actual use. Reported 59 N. H. 206. The issue was tried by a referee, who found for the defendant, and reported the following exceptions taken on the trial before him.

Assumpsit, to recover a balance of account. The declaration is for goods, wares, and merchandise bargained and sold, sold and delivered ; for work done and materials provided; for money lent, paid, laid out, and expended; for money had and received, and interest. The action is brought by Davis, surviving partner of the firm of Davis & Conant, against the defendants as trustees of the Church Family of Shakers.

Assumpsit, for labor .and services. At the trial before a referee, subject to the defendant’s exception, the plaintiff put in-evidence a writing containing the plaintiff’s name, residence, occupation.as real estate agent, a description of the farm and buildings with price, and this agreement: “ Enfield, N. H., Nov. 20, 1876. “If you procure a purchaser for the property described above, I will pay you, or to your order, .150 dollars; If I sell it outside your influence, I…

Covenant broken on the following instrument: “Ashland, March 26, 1873. “ This is to certify that I, Daniel H. Ames, have leased to Samuel Blanchard, Jr., my water power situated in Ashland for the term of six years, commencing January 26, 1873, and ending January 26, 1879.

<p>Writ on Entky. Facts found by a referee. The court ordered judgment for the plaintiff, and the defendant excepted.</p>

Bill in Equity, against Thayer, Aldrich, and Jackman, filed December 17, 1879, alleging that Thayer was seized of certain lands in Bethlehem; that he made a mortgage thereon, which is now held by Jackman; that Jackman has obtained judgment thereon, and is now in possession of the premises for the purpose of foreclosure; that the time of redemption will expire on or about December 26, 1879; that Thayer executed a second mortgage September 13, 1876, which is now owned and held…

Bill in Equity, to annul the proceedings by which the defendants were declared elected officers of a corporation, to enjoin them from acting as officers, for the delivery of the books, and an accounting. Decree for the plaintiffs. Nothing was reserved but the defendants’ exceptions to certain evidence at the hearing, the facts relating to which sufficiently appear in the opinion.

<p>Trover, for the conversion, March 1, 1875, of a lot of logs and wood cut on lots 6 and 7, or land adjoining on the west, and on lot 8, in Martin’s Grant, otherwise called Pinkham’s Grant. Facts found by a referee, and a report for the plaintiff.</p> <p>The plaintiff claimed title to the land on which the logs1, were cut, and one Copp, under whose authority the logs were cut, claimed title to 6 and 7. The defendant claimed that all the cutting was on 6 and 7. The plaintiff’s title to 6 and 7, and the land westerly of them and southerly of 7, was undisputed, except so far as Copp had acquired title thereto by adverse possession. The referee finds Copp was the owner of 6, but not of that part of 7 from which the logs were cut.</p> <p>In 1773, Martin’s Grant, embracing all the land from which the timber and wood in controversy were taken, was conveyed by the state to Thomas Martin. The plaintiff purchased this grant in 1841, and took a deed of it, and he traced his title back to Martin. In 1824 the state granted to Daniel Pinkham a tract of land half a mile wide on each side of the Pinkham road, being a part of the land previously granted to Martin. Pinkham, previous to 1827, divided liis grant into lots of 100 acres each. These lots were each 50 rods wide, and extended back 160 rods from the road on each side. The only marking done by Pinkham was spotting trees once in 50 rods by the side of the road to designate these lots. Copp’s deed was from Pinkham. The land in dispute was never divided into lots by any person who owned it. The only division was the one by Pinkham. Copp, in good faith and for a valuable consideration, took a deed of lot No. 6, November 5, 1827, in which it was described as situated on the Pinkham road, so called, and designated as lot No. 6, on the westerly side of Peabody river, to run 160 rods each side of the road where it now runs, and wide enough to contain 300 acres. The deed was recorded October 6, 1855. The average distance of the river easterly from the Pinkham road was 42 rods; and the plaintiff claimed that this description is not sufficient to give Copp color of title to land east of the river, though not exceeding 160 rods easterly from the road. If this view is correct, $35 should be added to the plaintiff’s damages. Copp, about the time he took his deed, having bargained also for 7, adjoining 6 on the south, though never having any deed of it, entered into possession of portions of both lots, and has remained in possession since. About forty-two years ago he ha'd the two lots run out, but the line between them was not run, and had the north-west corner of 6 and the south-west corner of 7 marked by the surveyor as comers. Those corners were several rods more than 160 rods westerly from the Pinkham road, one being about 180 rods from it. The line between the two corners was not run, but the westerly line of 6, the southerly line of 7, and the easterly line of the two lots, were run and marked. No corner was made for the south-west corner of 6 and the north-west comer of 7. Copp never enclosed the lines as thus run out, and it did not appear that the plaintiff ever acquiesced in or recognized those corners, or either of them.</p>

Assumpsit, on a policy of insurance. Facts agreed. The plaintiff, owning a tract of land adjoining land owned by his wife, built a house and out-buildings partly upon his own and partly upon his wife’s land, and procured a policy of insurance in the defendant company for $1000 on the house, $300 on the barn, and $100 on the carriage-house. The premises were destroyed by fire Oct. 27, 1877.

Writ of Entry, for land in Columbia, on a mortgage from the defendants, Jordan and wife, to one Parkhurst, and by him assigned to the plaintiffs.

Trover, for a.lot of last-blocks. Facts found by a referee. The defendant attached the blocks as the-prüp'erty. of one Howe, August 21, 1878, on a writ — irr'favor of A. T. & O. F. Barron against said Howe, which is made a part of the case. Judgriient was rendered in that action November 14, 1879, and execution issued thereon, but was never put into the hands of the defendant, or any other sheriff, for levy.

Assumpsit, on a policy of insurance issued by the defendants to one Marden. Facts found by the court. The policy was issued August 1, 1876, by F. W. De Rochemont & Son, who were then the defendants’ agents at Portsmouth. Oct. 3, 1878, the defendants. reinsured in the Faneuil Hall Insurance Company all property covered by this and all other policies issued by the Portsmouth agents of the defendants.

<p>Debt, on an executor’s bond. Facts found by a referee.</p>

<p>An agreement of two savings-bank depositors, that the survivor shall have the other’s deposit, each retaining the absolute title and control of his deposit during life, is a testamentary disposition of property not made according to the statute of wills, and is invalid.</p>

Motion to quash a writ. Two actions were brought originally by the plaintiffs against the defendants: one was a writ'of entry on a mortgage, and the other assumpsit on the notes secured by the mortgage. In the action irpon the mortgage, the general issue was pleaded, a trial had, a verdict rendered, and judgment on the verdict. In the action of assumpsit, no pleadings were filed.

Appeal, from a decree of the probate court, allowing the will of Elizabeth R. Tennant. The defendant, who presented it for probate, is named executrix in the will. The plaintiffs are nieces of the testatrix, and claim as two of her heirs-at-law. The instrument bears date March 19, 1860, .and is signed by the maiden name of the deceased, Elizabeth R. Fellows, who at that time was unmarried.

<p>Assumpsit, for money paid by tbe plaintiffs upon the following draft:</p> <p>The Star Fire Insurance Company.</p> <p>Hartford, Nov. 13, 1879.</p> <p>Pay to the order of Daniel W. Moulton and Samuel C. Goodwin, four hundred forty-six dollars and seventeen cents, being in full payment and satisfaction of all claims and demands against said company for loss and damage by fire on the 25th day of October, 1879, to property insured under Policy No. 114,050 of the Portsmouth, N. H., Agency of said company.</p> <p>A. E. Williams, Sp. A.</p> <p>To C. C. Kimball, Manager, Hartford, Conn.</p> <p>Indorsed: A. F. Craig.</p> <p>Daniel W. Moulton.</p> <p>Samuel C. Goodwin.</p> <p>The plaintiffs’ principal place of business and home office is at Hartford, Conn. The draft was made at Hartford by Williams, special agent of the company, upon Kimball, general manager of the company, to pay a loss upon a policy issued by Craig to Moulton and Goodwin, and was sent by Williams to Craig to be delivered to Moulton and Goodwin. Craig was local agent of the company at Portsmouth, authorized to make contracts of insurance and issue policies, but having no authority to adjust and pay losses, and he had no authority to collect the draft in suit. He did not deliver the draft to Moulton and Goodwin, but indorsed his own name, and forged the indorsement of the payees’ names upon it, and delivered it to the defendanpbank, whose cashier, supposing the indorsements to be genuine, passed the amount to the credit of Craig’s account. The defendants sent the draft forward duly indorsed for collection, and, in the ordinary course and through the ordinary channels of business, viz., banks in Boston and Hartford, it came to the hands of the plaintiffs and was paid without knowledge or suspicion that the indorsements were not genuine. Craig died. Moulton and Goodwin not receiving pay for their loss, the plaintiffs were compelled to pay it. Immediately on discovery of the forgery, the plaintiffs notified the defendants, presented tbe draft, and demanded repayment of the money paid upon it. The defendants refused, and brought this suit. A motion for a non-suit was denied, and a verdict ordered for the plaintiff's, to which the defendants excepted.</p>

Trover, for a car-load of lumber. The plaintiff, a manufacturer of lumber at Canaan, through an agent at Manchester, sold a carload of boards to Foster, to be forwarded to Raymond, the property to remain the plaintiff’s until paid for. The plaintiff! loaded and sent forward the boards consigned by way-bill to Foster at Raymond.

Bill in Equity, by the executors of the will of Harriet L. Penhallow, deceased, for the advice and direction of the court in regard to the following clause in the will: “I give and bequeath unto Harriet A. Penhallow, Elizabeth J. Penhallow, Charles L. Penhallow, and David P. Penhallow, children of Andrew J. Pen-hallow two thousand dollars each, in event of either the four dying without issue, his or her share to go to the survivors in equal parts to have and to hold the same…

Assumpsit, on a promissory note for $4,060, dated at Boston, February 20, 1874, signed by tbe defendants, and payable to tbe order of the plaintiff on demand, with interest at ten per cent, annually, and upon which several payments have been endorsed. Facts found by a referee.

Petition for the removal of a cause to the federal court. The action was entered at the April term,1880,when the defendants appeared, and the cause was continued to the next term (October, 1880). At the October term the defendants filed a petition and bond for removal to the circuit court of the United States. The court denied the petition, and the defendants excepted.

Assumpsit, on the defendant’s promissory note for $226, dated December 18, 1877, and given for the premium on a policy of insurance issued by the plaintiffs upon the defendant’s schooner for one year from that date. The defendant at the date of the insurance, and during its continuance, was a resident of Newmarket in this state.

<p>In an appeal from a decree of the judge of probate on the settlement of an administration account, the appellant is confined to the investigation of matters stated in the reasons of appeal.</p> <p>The report of a referee in a probate appeal being returnable to the law term, a motion to set aside the report as against evidence may be considered at the law term, although, as a general rule, questions of fact, are to be determined at the trial term.</p> <p>Upon the question whether the widow of a testator was represented by her son in the settlement of the administration account of the executor of her husband’s will in the probate court, and in the adjustment with the executor of matters pertaining to the administration of the estate* it is competent to consider the fact that she understood it to be a final settlement preparatory to a distribution of the estate, the amount of the estate to be distributed and her interest in it, the situation and relationship of the parties and the fact that the son was an attorney at law, the nature of the examination made by him and whether he-assumed to act for his mother, the length of time negotiations were-pending between the notice and final settlement of the account, the fact that a power of attorney purporting to have been executed by the-mother to the son on the day after the settlement in the probate court was concluded authorized the son to act for her, and “ do all things-necessary to be done in the settlement of her claim and interest in the estate with the executor, or the judge of probate before whom the executor is to make his final accounting,” the fact that the mother immediately received a portion of the money distributed to other legatees, making no objection to the settlement, and all other acts of the parties connected with the business of the settlement of the account.</p>

Case, on the statute of highways, for damage happening to a traveller December 16, 1878. The plaintiff offered to show that the way was laid out, birilt, and dedicated to the public in 1862 by the owners of the land over which it passed; that at a legal town-meeting, March 10, 1863, due notice having been given by an article in the warrant, the town voted to accept the road, and ever since that time the town has kept it in repair, and used and treated it as a public highway.

<p>Trespass, qu. el. Verdict for the plaintiff.</p>

<p>.A lien for lumber and materials used in erecting a building, and furnished by virtue of a contract with the owner, is secured by an attachment made within ninety days from the time the last materials were furnished under the contract.</p> <p>In a suit brought to secure the lien, it is not necessary to allege in the declaration that they were furnished under a contract. It is enough if it appear, from the writ and return, that the purpose is to secure and preserve the plaintiff’s lien.</p>

The jury were then directed to retire for the further consideration of the case, and having done so, within an hour they returned a verdict for the plaintiffs. The foregoing remarks were addressed to the jury in open court, and during its regular session, in the presence of the officers of the court, other jurors and attorneys, but not in the presence of the attorneys of either of the parties to this suit.

<p>An action does not lie, by a police officer, against a town to recover for his public services, in the absence of a vote of the town fixing his compensation.</p> <p>Assumpsit, to recover for services as a police officer. The town had never voted any compensation to the plaintiff, and had never fixed by vote the amount o£ his pay or the pay of any of the police officers at any time. The plaintiff claims to recover what his services were fairly worth. He has been paid $175. The services, rendered were such as had been rendered by policemen in former-years, and for which they had been paid. The selectmen, in good faith, made a contract with the plaintiff that he should perform such services as policemen had been called upon to perform, and that he should receive the same pay as had been allowed them for similar services.</p>

Indictment, for keeping a disorderly house. The defendant excepted to the refusal of the court to instruct the jury that the charge that women of evil name, fame, and reputation frequented his house is a material part of the indictment; that it is matter of description, and must be proved as alleged.

The first action is an appeal from the decision of the commissioner on the estate of Eliza H. Drew, disallowing a note for $2,000, dated May 25, 1875, signed by the defendant’s intestate and payable to the plaintiff; and the second is a writ of entry to-foreclose a mortgage given to secure the note. It was claimed in defence that the note was for a larger sum than was due, and that it was void by reason of the mental weakness and want of capacity of the deceased.

Case, for injuries from the negligent management of the defendants’ cars at a street crossing. There was evidence that on the afternoon of the accident the plaintiff, in Dover, walked from one street to another parallel street upon the defendants’ railroad, which crossed both streets at grade.

Assumpsit, by th.e indorsee of two promissory notes, signed by the defendant, and indorsed by the payee to the plaintiff before maturity. Plea, the general issue, and a brief statement that the notes were without consideration, and were procured by the fraud of the payee, of which the plaintiff had knowledge. The notes were given for the right to make and sell a patent spring-bed in the states of Maine and New Hampshire.

Assumpsit. Facts found by a referee. The plaintiffs are E. A. Tibbetts, Joshua S. Smith, and forty other residents of New Hampshire and Maine, partners, doing business at Somersworth, N. H., under the firm name of New England Protective Union, Division 175.

Trespass, for an assault. The action was sent to a referee. The plaintiff testified that she moved into the defendant’s house April 1, 1878, and occupied certain rooms; that an altercation arose between her and the defendant November 14, 1878, when he committed the assault complained of by striking her a severe blow on the face, and she left the house threb days after; that the defendant never had notified her to move prior to that time; that one Sunday before the assault he…

• Trover, for twenty-five cords of manure. Facts found by a referee. In the spring of 1877 the plaintiffs, Snow and Perkins, formed a partnership in the business of raising hogs. The hogs were kept in a barn cellar and yard adjoining, on a farm in Rollinsford, on which Perkins lived, and of which he owned one seventh, his brothers two sevenths, and his mother the remaining four sevenths.

Bill in Equity, alleging the right of the plaintiff to draw water for the use of his mill from the defendant’s reservoir, and praying for an injunction to restrain the defendant from interference. The plaintiff’s right to the water was disputed.

Case, for illegal assessment of taxes against the plaintiff by the defendants, as assessors of B. for 1879. The declaration did not charge nor the evidence show bad faith or wilful misconduct in making the assessment. A nonsuit was ordered, and the plaintiff excepted.

<p>Assumpsit, on a note of the defendant payable to the plaintiff, and dated Dec. 20, 1876. The parties are husband and wife. The defence is made by subsequent attaching creditors.</p> <p>The evidence tended to show that in April, 1853, the plaintiff loaned the defendant, then her husband, between $340 and $350, which he then promised to pay her, with interest annually. No note or any writing was given or made representing this transaction. .About $200 of this sum was the result of the plaintiff’s earnings before marriage, and the remainder was the result of her earnings after marriage, during about ten months prior to the loan, Aug. 27, 1861, at the plaintiff’s request, the defendant was induced to purchase a farm in order to furnish a home for her father. For this he. paid $5J30, and the deed was taken in the name of the plaintiff. The purchase-money was understood by the" plaintiff ancPthe defendant to be a payment to the plaintiff of the defendant’s indebtedness to her. The farm was sold April 19,1864, for $600, which the plaintiff then loaned to the defendant, and which he invested in part payment for another farm. No note was given as evidence of this transaction. In 1865 the defendant gave the plaintiff U. S. government bonds for $900, in payment for the amount then considered to be due to her on account of the previous lo¡ms and the accrued interest. These bonds were kept in a desk in which the husband and wife kept their several papers. When the coupons became due, the husband, with the wife’s consent, collected and retained the proceeds. In 1871 the plaintiff let the defendant have the bonds, and then tookhis note for their supposed value, viz., $948. The note m suit was given in renewal of the note of 1871.' At the date of the note in srdt, and at all times prior theréto, the defendant was not in any condition of pecuniary embarrassment.</p> <p>Among other “things, the court instructed the jury that if the defendant put his own money or property into his wife’s hands, or made her his creditor, in fraud or intended fraud of his creditors, she cannot avail herself of such a transaction, and cannot recover. Verdict for the plaintiff, and motion for a new trial.</p>

Petitions, of Benjamin Weeks for abatement of tax assessed against liim in Gilmanton, and of Maria S. Mack fo^ abatement of tax assessed against her in Gilford, for the year 1880. Facts agreed.

Bill in Equity. The plaintiff asks for a decree setting aside a sale of his land by the defendant Dolloff, as collector of taxes of the town of Meredith for 1880, to the other defendant, Smith, for non-payment of taxes, and that Dolloff may be restrained from giving and Smith from receiving a deed of said land, which was properly taxed as non-resident.

Assumpsit, on a special count for damages for the breach of an agreement to convey land to the plaintiff, and on the common counts for money received by the defendant from the plaintiff in part payment for the land, and for labor performed and materials furnished in building fence and making repairs of a house on the same land. Pacts found by a referee. The defendant orally agreed to sell the plaintiff a piece of land for $175, to be paid in monthly instalments of $20 each.

Assumpsit, on a note. The case was originally heard by a referee, who found for the defendant. It was then tried by the jury, who found for the plaintiff. The defendant then reviewed, and a trial was begun at the October term, 1880, but was not completed, by reason of an alleged attempt by the plaintiff to bribe one of the jurors.

Trespass qu. cl. Facts found by a referee. Either the defendant or his son is liable for damage done by the defendant’s sheep straying into the plaintiff’s land from their pasture, which was a part of the defendant’s farm. The defendant had verbally let his farm and farm stock, including the sheep, to his son for the year in which the damage was done; and the son had possession and control of the farm and.stock.

<p>A person pasturing another’s milch cow for the season, in the usual man. ner, under an agreement with the owner, is so far intrusted with the animal as to have a statutory lien upon it for the charge of pasturing, as against the owner, and third person having no title or right of possession.</p>

Assumpsit. The plaintiff contended that the debt was not discharged in bankruptcy because created by the defendant’s fraud. Facts found by a referee.

<p>Assumpsit, upon policies of insurance. The defendant company in the first named case may be designated “A,” and in the second “B.” Each policy insures one Fifield “$1000. on his undivided half of machinery, shafting, belting, tools and fixtures contained in a two story frame paper mill and additions to same known as the Kearsarge paper mill situate in Andover N. H. Loss if any payable to R. C. Carr as his interest may appear.”</p> <p>The property was burned Sept. 15,1878, and the plaintiff held a mortgage made by Fifield to secure notes exceeding the amount of the policies. The mill was not operated at the date of the policies, nor at any time after that time.</p> <p>Policy in company “A” contained a condition that if the premises should become vacant or unoccupied the policy should be void.</p> <p>Policy in company “B” contained the following condition: “This policy will not cover unoccupied buildings, unless insured as such, and if the premises insured shall be vacated and so remain for ten days without notice to this association, this policy shall cease and determine.” The defendants moved for a nonsuit.</p>

<p>Claim: for aid furnished a pauper. The facts are stated in the opinion.</p>

<p>Petition, for the assessment of damages under the flowage act of 1868, G. L., e. 141, ss. 15, 16, 17.</p>

Assumpsit, for a legacy given to the defendant in trust for his daughter, the plaintiff. The legacy was given and the will approved when the plaintiff was a young child. She is now twenty-three years of age, and had no knowledge of the legacy until about a year prior to the suit.

Bill in Equity, by the executors of the will of J ohn Mooney,, deceased, for the advice and direction of the court in regard to the following clause in the will: “ 34. I place the remainder of my property, in the hands of my executors, to be distributed by them after my decease, among my relatives, and for benevolent objects, in such sums as in their judgment shall be for the best.

Assumpsit, on a promissory note for $2,200, dated April 11, 1873, payable on demand with interest annually, and signed by C. & J. C. Gage, and the defendant, Isaac K. Gage. Plea, the general issue and the statute of limitations. C. & J. C. Gage wore the principals on the note, and the defendant was surety. Two payments were made in 1878 by J. C. Gage, which were endorsed, but nothing has been paid by the defendant.

Bill in Equity. The following facts were alleged: The plaintiff is treasurer of Merrimack county. His term of office extends until June 30,1881, and until his successor shall be chosen and qualified. Held: at which the plaintiff was a candidate for reelection. Tbe returns of the election were made to the court at the law term. The court, December 8, 1880, upon the returns, declared the defendant elected treasurer to succeed the plaintiff.

<p>Tbe interest of a tenant in common in a tract of land passes by the extent of an execution against him on the whole tract, but such levy does not affect the rights of the other tenants.</p>

Assumpsit, to recover for money overpaid the defendants for freight on coal transported from Portsmouth to Concord. The defendants have operated the Concord & Portsmouth Railroad since 1859. June 25, 1861, an act was passed by the legislature, empowering the Concord & Portsmouth Railroad to take up the rails between Candía and Suncook, and extend their road from Candía to Manchester, and connect with the defendants’ road.

Repukvin, for a horse. Facts found by a referee. In October, 1878, the plaintiffs sold to one Alden the horse replevied for $100, to be paid in one year in monthly instalments of $8, the horse to be in Alden’s possession, but to remain the property of the plaintiffs till paid for. If not fully paid for at the end of the year, Alden was to forfeit whatever he had paid, and tbe horse was. to be returned to the plaintiffs.

Assumpsit, on a note signed by the defendant. Plea of coverture. Facts found by a referee. January 27, 1872, the defendant’s husband gave D. his note for $181.67, payable in six months,, which D. indorsed to the plaintiffs, who held it until the note in ■suit was given, the husband paying the interest thereon. The note was given for money borrowed and goods purchased by the husband, no part of which went into the defendant’s separate estate.

Writ oe Entry oil a mortgage. Facts found by a referee. The demanded premises are described in the mortgage as “ a certain piece or parcel of land in Allenstown in said county of Merrimack and bounded as follows, to wit: Beginning at the .northwesterly corner of the premises thence west 96 rods to a stone monument thence turning and running south 87 rods thence easterly on a parallel line with the first named line to the easterly line of said lot thence northerly on the line…

Petition, to redeem land from a mortgage for $300, dated December 7, 1871. Held: and the plaintilf excepted.

Assumpsit, on notes made by the defendant, and payable to the plaintiff or order. The defendant was defaulted, and the action was defended by subsequent attaching creditors on the ground that the notes were fraudulent. The plaintiff having produced his notes, and introduced evidence tending to show that they were signed by the defendant, rested his case. He offered no evidence aside from the notes themselves showing their consideration.

Foreign Attachment. Issue between the plaintiffs and the claimant. Reported ante 288. Facts found by a referee. The claimant is the defendant’s wife, and they live together on a farm owned by the claimant, which the defendant manages as her agent.

Assumpsit, to recover a balance for goods sold. December 80, 1878, tlie plaintiff gave to the defendants a bill of sale, under seal, ■of all the shafting, pulleys, machinery, tools, furniture, and fixtures in the second story of the building then occupied by the plaintiff, in Franklin, with all the patterns and drawings connected or used with the tools and machinery.

Assumpsit, to recover certain notes. Plea, the general issue* with a set-off. Pacts found by a referee. The defendant offered his own testimony. The plaintiff, who is an administrator, did not elect to testify, and, it not appearing that injustice would be done without the testimony of the defendant, he was not allowed to testify, and the defendant excepted.

Assumpsit, on a joint and several note, payable on demand, and signed by the defendants and another. Plea, the general issue, with a brief statement that the defendants were sureties, and that the plaintiff, in consideration of $6 paid her by the principal, agreed to extend the time of payment one year without their consent, whereby the defendants were discharged.

Foreign Attachment. Facts found by a referee. April 21, 1875, the defendant leased a summer boarding-house, with its furniture, to the trustee for. three years, at an annual rent of $400, payable on the first day of October in each year.

Petition of the town of Webster for the discontinuance of a-highway.

Trespass de bonis, for a colt. Facts found by a referee. One Allard, having mortgaged his mare to the plaintiff, made with the defendant a contract by which the defendant, for the price of $50, was to have a colt to be raised from the mare, and to be taken by the defendant when four months old. When the colt was two months old, Allard mortgaged it and the mare to the plaintiff.

Assumpsit. Facts found by a referee. The plaintiff delivered to the defendant goods sold by the plaintiff on the credit of one E. L., who became bankrupt. By an oral agreement between the plaintiff, the defendant, and E. L., the defendant became the plaintiff’s debtor for the goods in place of E. L. The plaintiff did not prove this claim against E. L., but proved other claims against him, and signed his composition release.

<p>Replevin, for leather. Facts found by a referee.</p>

Foreign Attachment. The facts appeared in the disclosure of the Indian Head National Bank, trustee. The defendants, being indebted to the bank, assigned to the bank, by a written instrument, all accounts and claims due them, with the right to collect the same in the defendants’ names, and apply the proceeds towards the payment of the debt secured by the assignment.

<p>The federal constitution requires the choice of a federal senator for six years, to he made at such a time as will not violate the right of the state to he represented by two senators “ chosen by the legislature thereof for six years;” and, by U. S. Rev. St., s. 14, the duty of choosing a senator for a full term is assigned to the latest legislature that can perform the duty.</p>