Volume 61 — New Hampshire Reports

<p>A judgment upon a debt provable in bankruptcy, rendered after the defendant’s petition in bankruptcy was filed, and before his discharge, is not barred by his discharge.</p> <p>Debt, on a Massachusetts judgment recovered in October, 1878. The plaintiff demurred to a plea which averred the defendant was discharged in bankruptcy, September 6, 1879, from all debts provable in bankruptcy, and existing January 9, 1877, the day of the filing of his bankruptcy petition; the judgment is founded on causes of action existing on that day, and provable in bankruptcy; and the judgment was rendered after his petition was filed, and before his discharge.</p>

<p>The defendant’s race-way for his mill is upon land of the plaintiff, and is held by a grant in a deed made in 1821, conveying a right to cut a canal through the land to carry the water from the mill to the river, “to be of sufficient width to carry the water, with the right to dig the same one rod and one fourth if needed.” The owners of the mill cut a canal a rod in width, and used it for over fifty years, the owners of the plaintiff’s land during all the time occupying and using the land ' to the banks of the canal. This is not conclusive evidence of an election of a canal of that width, or of a location of the easement binding upon the owner, nor, as a matter of law, an abandonment of the right to cut a canal of the full width of the grant, if needed for the use of the water-power.</p> <p>The widening of the canal, by the defendant, to the full width of the grant, if reasonably necessary for the use of the whole water-power, is not an invasion of any right of the plaintiff for which he can recover.</p> <p>If, in widening the canal to the full width of the grant, the defendant has thrown and left the earth excavated upon the banks of the canal, he is not liable for damage to the plaintiff, if depositing the earth there'was reasonably necessary in constructing the enlargement.</p> <p>If the banks of the canal have fallen away through the action of the natural elements of frost and rain, and not through faulty construction, the defendant is not liable.</p>

Bill in Equity, to set off opposing judgments. At the September term, 1879, the defendant recovered judgment against the plaintiff in an action of deceit in the sale of land by the plaintiff to the defendant. Before the recovery, and pending the action, the defendant assigned the right of action, and any judgment to be recovered to his son to pay a debt due him.

Debt, for a penalty for taking illegal fees. The defendant is a deputy sheriff, and served two writs for the plaintiff, attaching personal property upon the first, and real estate upon the second. On the first he charged, services, $1.00; travel, $0.24; attachment, $1.00; — and upon the second, service, $0.50 ; travel, $0.12; paid clerk, $0.20; copy, $1.00; service, $0.50; travel, $0.12. The second writ contained 600 words.

Assumpsit, to recover $40 and interest received by the defendants, selectmen of New Boston, on the day of the annual election in March, 1880. Facts found by a referee. The plaintiff, who became of age February 19, 1880, his mother, and a minor brother, for three months and more before the annual meeting, occupied a small piece of real estate in New Boston, obtaining a considerable part of their living from the proceeds of the land.

Writ oe Entry, for the recovery of certain real estate in Nashua. Writ dated Dec. 17, 1880. Plea, the general issue. Facts agreed. The plaintiff was the owner of the premises described in the writ, subject to certain mortgages, and the defendant claims under a sale of the equity made on a judgment recovered by Margaret Mullin, at the May term of this court, 1878, for $1,500, and a conveyance to him by said Margaret.

Covenant Broken. The declaration alleged a conveyance from the defendant to the plaintiff with full covenants of warranty, and a breach of the covenants of seizin, good right to convey, and warranty, but alleged no eviction or payment of damages. The defendant demurred.

<p>Damages resulting to a person from a crime, and for which he may maintain an action, may lawfully be adjusted by him with the offender.</p> <p>An agent who has money belonging to his principal, cannot shelter himself and keep the money on the ground that it was furnished for an unlawful purpose.</p> <p>An illegal contract may be rescinded so long as it continues executory, and the money paid under it recovered hack.</p>

Assumpsit, for rent of a store’ in Manchester. Facts found by a referee. September 11, 1874, one Bailey, owning the land on which the store stands, leased it to one Sweeney for ten years, from June 1,1871, at an annual rental to be paid monthly. Under the lease, the lessee had the right to remove the small buildings on the lot, and dispose of them at his pleasure, and erect others, or enlarge the other buildings on the lot.

<p>The right of appeal given by Gen. Laws, c. 200, s. 1, to any creditor of an insolvent estate who is dissatisfied with the decision of the commissioner upon any claim by him exhibited, is not affected by the refusal of the creditor to testify in support of such claim.</p>

Application to amend a sheriff’s return. Facts found by the court. The defendants having an execution against the plaintiff’s husband, levied it upon a tract of land which they claimed belonged to the husband, but which the plaintiff claims belonged to her. In the appraiser’s certificate the land is described as follows, — “ Tract No. 2 is situated on the corner of Lake and Elm streets,” — and there is no other description, either in the certificate or return of the officer.

Assumpsit, for goods sold and delivered. Facts found by a referee. Prior to February 26,1880, the defendants were in trade in Nashua, and were largely indebted to parties in Nashua, besides to several mercantile houses in Boston, among the latter being the plaintiffs. The indebtedness of the defendants was largely in excess of their assets. Their goods had been attached by their Nashua creditors.

Bill in Equity, by the plaintiff, as guardian of Bisco, an infant, alleging that the defendants hold certain notes, the property of his ward, and praying that they be required to deliver them to him. The defendants claim to hold the notes as collateral security for loans made by them to one Bolster, the former guardian of the infant, in the ordinary course of business, and in good faith. Facts agreed.

<p>Deist, on a bond from tbe defendant to tbe plaintiff. Tbe condition is, “that whereas I have sold to said Webster my team and teaming property and have agreed in consideration of the sum paid by him therefor to wit tlie sum of eleven hundred dollars that I will entirely relinquish to him the teaming business in the vicinity of Marlborough aforesaid meaning over and on the whole route heretofore occupied and run by me Now if I the said Buss shall well and truly so relinquish to said Webster said route and in no way directly or indirectly interfere with or cause the same to be interfered with then this obligation shall be void ”</p> <p>Facts found by a referee. The action is brought by one Elwell, assignee of the plaintiff’s interest. Webster ran the route one year, and sold to Jewett, who sold to Elwell. While Webster and Jewett owned the property and did teaming over the route, Buss did not violate the conditions of the bond; but since Elwell purchased, Buss has put on teams and done teaming, contrary to the condition of the bond.</p> <p>Webster paid the defendant $1,100 at the time the bond was executed and delivered. Subject to the defendant’s exception, the plaintiff was allowed to show, that, September 1,1874, he sold the property to Jewett and gave him a bond conditioned as follows:— “ Whereas said Jewett has this day purchased of said Webster three horses, one freight wagon, one freight sled and other property thereto belonging, for the purpose of teaming; now if the said Webster shall hereafter desist from all business of teaming, from said Marlborough to Keene, or any where whereby the business of said Jewett can or may be affected thereby then this obligation shall be void.” Jewett carried on the business until November, 1878, when he sold the property and business to Elwell. When Webster sold to Jewett, he informed Jewett that the defendant gave him a bond not to go into the teaming business over that route, and that if the defendant interfered by engaging in teaming, he, Webster, would prosecute him therefor, or let Jewett have the bond; and when Jewett sold to Ewell, lie told him that he had tafeen the bond from Webster before described, and that Webster had taken the bond from the defendant, and that the defendant had no right to do teaming over the route described, because of the bond. The defendant had no knowledge of the representations made by Webster to Jewett and by Jewett to Elwell.</p>

Bill in Equity, to foreclose a mortgage. Facts found by a referee. June 16,1863, Francis Foster, now deceased, executed a mortgage of 96J square rods of land in Keene to the plaintiff, to secure a note of that date for $550. The land was subject to a prior mortgage to Nathan Putney.

Bill in Equity, for partition of land, and for an accounting for rents, and profits, and waste. The bill alleges title to the land in the plaintiff and the defendants, under the will of their father, Joshua Sawyer. The defendants demur to the plaintiff’s alleged* right of partition, and answer denying the allegations of exclusion from possession, withholding of rents and profits and waste. The question raised by the demurrer is reserved.

Assumpsit, on a promissory note for $104.02, dated July 13, 1877, signed by the defendant, and payable thirty days after date to the order of the plaintiff. Plea, the general issue. The note in suit was given by the defendant for another note of the same amount, signed by the defendant, dated July 10, 1876, payable to the Cleveland Lightning Hod Company or bearer, in one year from date, transferred to tbe plaintiff before maturity.

Bill in Equity, to restrain the levy of an execution on a certain tract of land, and for a decree that certain mortgages are in force against the defendants. Facts found by a referee. July 10, 1873, the defendant Fred. A. Barker owned a house on Water street in Keene worth $6,000, which was subject to a mortgage of $2,000 to the Keene Five Cents Savings Bank; and the plaintiff L. W. Hammond owned a house on Dunbar street in the same city worth $2,000.

<p>Assumpsit, on a promissory note for $775, payable to the town of Rindge, dated March 19, 1874, and signed by the defendant. Facts found by a referee. The note was given for the balance of a former note of $2,400, which was given for the balance of uncollected taxes for the year ending March, 1872, by the defendant, who was collector of taxes for Rindge that year. When the collector settled with the treasurer, in March, 1872, the several payments by the collector during the year of taxes and abatements were added, and the sum deducted from the amount of the collector’s warrant, leaving a balance of $2,400. The collector gave up his several receipts, and took a single one for the whole sum paid, and another for the $2,400 note. The defence was, that $800 had been paid which the collector Avas not credited with, and that the $2,400 note was too large by that sum.</p> <p>In August, 1879, the defendant found among his papers a receipt for $800, dated October 24, 1871, signed by the treasurer of the town, one Raymond, and claimed that this represented the amount which had not been allowed him in his settlement in March, 1872.</p> <p>A book, claimed by the plaintiffs to be the one on which the treasurer for the fiscal year 1871-72 kept his account with the town, was offered by the plaintiffs in evidence, and objected to by-the defendant. Raymond died in May, 1879. The book was found, on search being made by Mrs. Raymond, in a box containing papers - and memorandum-books of her husband, at his brother’s house in Jaffrey, where he died. It was in Raymond’s handwriting, had written upon the outside the words, “ O. J. Raymond, Town Treasurer, March 1,187Í,” in the same hand, and contained entries under various dates from March, 1871, to March, 1872, of moneys received and paid for the town, and for a church society of which Raymond was also treasurer, the word “ society” being written after the items of the society account.</p> <p>The book was identified by Robbins, Raymond’s successor, who settled with him in March, 1872, Raymond reading items from a book which he took from his breast pocket, and Robbins comparing and checking the corresponding items on the book in question. Mrs. Raymond identified the book as being in her husband’s handwriting, and had seen him write in it during the year he was treasurer, sometimes seeing him Avrite entries of money paid, and sometimes seeing the entries after they were made. Ingalls, an expert in accounts, assisted in 1873 in investigating Raymond’s accounts with the town, Raymond having, when he was treasurer, borrowed money on the credit of the town without authority and appropriated it to his own use. At that time the book was in Raymond’s possession, was examined by Ingalls, and he now identifies it as the same one and in the same condition as then. No book, like that which Robbins saw Raymond take from his pocket and read from, could be found. There was no evidence that Raymond kept his accounts on any other book than the one in question, and the one Robbins saw Raymond take from his pocket. On this evidence the book was received, subject to the defendant’s exception. The entries in the book showed that the defendant had been credited with all his payments, including the $800 receipt. No exception was taken before the referee, excepting to the admission of the book in evidence. The referee found for the plaintiffs the amount of the note and costs.</p> <p>If the defendant’s exception is overruled, there is to be judgment on the report; otherwise, a new trial.</p>

<p>Writ oe Entry, to recover possession of certain premises in Newport. The material facts are stated in the opinion.</p>

Assumpsit, to recover an assessment made by the plaintiffs upon a premium note of the defendant. Facts found by a referee. The plaintiffs are a mutual fire insurance company, Chartered and organized under the laws of Vermont, and located and having their principal place of business at Bellows Falls, Vt. The defendant is a citizen and resident of this state. His buildings and their contents were insured Dec. 16, 1871, for six years, at which time he gave the note in suit.

Assumpsit, on a note dated July 14, 1876, signed by the defendant as surety. The principal filed his petition in bankruptcy February 6, 1877. The plaintiff proved his claim, and voted for assignee. Subsequently the bankrupt submitted to his creditors a proposition for a composition of 10 per cent, in satisfaction of their claims, under s. 17 of the amendment to the bankrupt act approved June 22, 1874.

<p>Under our statutes of descent and distribution, neither uncles nor cousins of an intestate inherit by right of representation; hut the former,. being next of kin, take tho whole estate as against the latter.</p>

Case, against a town for traveller’s damages under the highway act. The plaintiff moved to amend the statement of his claim which he had filed with the town-clerk.

<p>Trespass, for breaking the plaintiff’s wagon by driving the defendant’s wagon against it. Plea, the general issue. Facts found by a referee. On a dark night the defendants, riding in a wagon in a highway, met two daughters of the plaintiff riding in Lis wagon. The daughters, hearing a carriage approaching, turned to the right of the centre of the travelled part of the road, and stopped. Their horse had been walking and their team was not heard, and on account of the darkness was not seen by the defendants, who did not turn out because they were not aware of the presence of the plaintiff’s team in the road. The defendants’ horse, going at a moderate trot, turned to the right, but not far ■enough to avoid a collision. The defendants’ left wheel struck the plaintiff’s wagon and broke it. There was no negligence or fault on either side. After the evidence was closed, the plaintiff moved to amend the declaration by adding a count in assumpsit. The court ordered judgment for the defendants, and the plaintiff excepted.</p>

Foreign Attachment. The defendant was defaulted, and a •claimant of the fund in the hands of the trustee appeared. The plaintiff and the defendant agreed in writing that the writ should be amended by striking out the name of the plaintiff and inserting in place thereof the name of another person. The court allowed the amendment, and the trustee and claimant excepted.

<p>A sot-off of mutual judgments is made when it is equitable; and the equitable question is one of fact.</p>

Bill in' Equity, for an injunction to restrain the defendant from carrying on the grocery business, or billiard or eating saloon business, in Woodsville. Facts found by a referee.

<p>If a tenant refuses to leave at the expiration of the time fixed in a notice to quit, the lessor may peaceably remove the tenant’s goods, doing no unnecessary damage.</p> <p>Service of a notice to quit may be shown by the evidence of any one having knowledge of the fact.</p>

Assumpsit, upon the common counts, and also upon a count alleging that the defendant drew an order in the plaintiff’s favor upon one Rutherford, which Rutherford refused to accept, whereupon the defendant promised to pay the plaintiff the amount thereof. Facts found by a referee. March 1, 1871, the defendant, being indebted to the plaintiff, gave him a negotiable order on Rutherford, who at that time was solvent, and owing the defendant enough to pay the order.

Assumpsit, against W. J. Hobbs, on notes dated May 31,1875, signed by W. F. Hobbs, and payable to tlie defendant, who sold and endorsed them, September 24, 1877, to A. T. & O. F. Barron, who sold and endorsed them, November 26, 1877, to the plaintiff. Facts agreed.

Bill in Equity, alleging the following facts: February 23, 1877, Shaw & Dalton, as tenants in common, owned a lot of land on which were a store and house, subject to a mortgage of about $100, then and now owned by Tibbetts. On that day one Abbott agreed to buy Dalton’s half for $850, and gave his two notes to Dalton for $325 each, payable one in one year, and the other in two years ; and Dalton gave Abbott a bond for a deed of his half, to be made on the payment of the notes.

Assumpsit, to recover the proceeds of goods sold on commission. Facts found by a referee. The plaintiff sent the goods from Canaan, Vt., to the railroad at North Stratford, N. H., by one Green, and he forwarded them thence to the defendant, with a letter requesting the defendant to sell them and send the money to Canaan in care of Green. The goods reached the defendant November 1, 1871.

Debt, on a collector’s bond. Facts found by a referee. The only matters in controversy were a tax against Ross & Leavitt, a tax against R. E. Peabody & Co., and a claim of ten per cent, interest after December 1, 1876, on uncollected taxes and taxes collected and not paid over to the town. As to the Peabody tax, the collector was negligent. He could have collected it by the exercise of reasonable care and diligence, such as he was bound to exercise in his office.

<p>A debtor acquires no attachable interest in land by a contract with the owner to cut and manufacture the timber on the land at a saw-mill erected there by the debtor for the purpose, with a stipulation of the owner of the land to buy the mill or sell the land, at his election, after the timber is cut and manufactured.</p>

Foreign Attachment. The first two actions at the November term, 1874, were, by order of court, under the act of 1874, committed to a referee, who reported at the November term, 1875, in favor of the trustee, and the plaintiffs elected a jury trial. In the other two actions, the plaintiffs elected trial by jury, after taking the deposition of the trustee.

Assumpsit, for tbe balance of two notes, payable to tbe plaintiff in one year, and signed by C. S. Peabody & Co. and the defendant.. The debt was that of Peabody & Co., and the defendant was surety.

Assumpsit, by one against another signer of the following writing:— “We the undersigned parties, whose water-rights and privileges are damaged by turning from its natural course of the Mohawk stream, hereby agree to pay an equal proportional share towards defraying the expenses of process to compel those parties who have diverted the water to restore it to its former bed and condition.” The plaintiff and the defendant, with twenty-six others, inhabitants of Colebrook…

The plaintiff testified: “ The distance from the lot to my farm is one mile and a half round the road- — one half mile across. I have no other sugar-lot. I have a small piece of wood-land that will cut about twenty-five cords.” The referees reported that they made personal examination upon the lot, and that the above testimony had no influence upon them in their assessment of damages. The court ordered judgment upon the report, and the defendant excepted.

Assumpsit, for the price of a horse-rake. The plaintiff asked leave to amend, by filing a count in trover for the rake. , Facts found by a referee.

Assumpsit, on a note for $700, dated February 9, 1877, made by the defendant to the plaintiff, payable on demand with interest annually. Facts found by the court. The plaintiff held two notes, one for $1,200 and the other-for $800, against one Brooks, their understanding being that the interest should be ten per cent.; and the first year’s interest at that rate was paid, and other payments were made.

Libel for Divorce, with the usual order of notice and a return of service. Counsel appeared specially for the defendant, and moved to dismiss for defective service, and the court ordered the action continued for notice. The defendant objected that another order of notice could not be made, because of the order of notice and attempted service before the term. The court overruled the objection, and the defendant filed this bill of exceptions.

<p>A mortgagee purchasing an outstanding claim against the mortgagor, which is not a charge upon the mortgaged premises, cannot tack it to his mortgage as a part of the mortgage lien, and compel payment of it hy the mortgagor, a subsequent purchaser or attaching creditor seeking to redeem.</p>

Debt, upon a judgment recovered at November term, 1878, in Cobs. Facts agreed.

Assumpsit, on a promissory note signed by the defendants. Facts found by referees. “Austin A. Cote did promise as alleged, etc. In reference to tbe other defendant, we find that said Ida A. Cote was born September 3, 1854; was married to said Austin A. in 1870, and was divorced from him in 1878. In June, 1875, said Austin A. went to tbe plaintiff’s residence and looked at a three-year-old colt, and wanted to buy it of the plaintiff on credit.

Bill in Equity, stating that in the plaintiff’s hands, as administrator of the estate of Joseph Amazeen, are three books of deposit in the Portsmouth Savings Bank, one in the name of Mary E., one in the name of John E., and one in the name of Florence (who are children and heirs at law of the deceased, and are made defendants), and praying for instructions.

Case, for falsely representing certain persons to be of good credit, whereby the plaintiff was induced to trust them. Verdict for the plaintiff. The particular representations which it is claimed that the defendant made are not reported, nor is the evidence which was introduced to prove them.

Trover for oxen. Facts found by a referee. The declaration is in common form, and contains no allegation of special damages. June 14, 1877, the plaintiff bought the oxen of the defendant, who, as a part of the trade, agreed to pasture them without charge in a certain field until July 1.

Bill in Equity, for a determination of the disposition to be made of $1,042 received from a mutual benefit association by the plaintiff as executor of Patience J. Rand, who was a member of the association. Facts agreed.

Bill in Equity, for subrogation of the plaintiff to the rights of the defendant Scott in certain insurance. Facts found by the court. In April, 1879, the Savings Bank for the County of Strafford, having a mortgage of Scott’s land and buildings, procured a policy of insurance on the buildings from the London Assurance Company, to an amount greater than the mortgage debt, in the name of Scott, but payable to the bank, as its interest might appear.

<p>The plaintiff, holding land by conveyance through a third person from her husband, and also claiming in the land a homestead against her husband’s creditors, no homestead having been assigned, cannot recover, by virtue of the homestead right, in an action of trespass quare clausum against her husband’s creditor, who has set off the land upon an execution in his favor.</p> <p>If any recovery can be had, it must he upon the validity of the plaintiff’s title by the conveyance; and on a trial of the action the question of fraud in the conveyance is material.</p>

Indictment, for the embezzlement of $1,000, the property of S., who held a ticket in the Kentucky State Lottery, which drew a prize of $1,000 payable in New York, and employed the defendant to collect the money, giving him the ticket and a written order for that purpose.

Bill in Equity, for instructions to an executor. W. H. Smith, deceased, by his will, gave,— Third. To his executor, in trust, $4,000, the income to be paid to his wife for life, then to his three sons, Charles W., Winthrop, and Albert W., for their lives and the life of the survivor, then the $4,000 to his legal heirs then living. Fourth.

<p>The statute limiting the time within which actions may be brought to recover the penalty for receiving usurious interest runs from the time when the usury is received.</p> <p>It is no defence to such an action that there was no contract for the payment of usurious interest, and that it was voluntarily paid: the offence consists in receiving it.</p>

Writ oe Entry. Plea, nul disseizin, witb a brief statement of defence of title in the premises by virtue of the homestead right of the defendant and his minor children. The premises in controversy are a store and dwelling-house, with the land upon which they stand. They were held by the defendant’s wife in her own right, and were occupied by her and the defendant and two minor children until her death in 1879.

Trover., for a saw-mill and machinery. Facts found by a referee. The plaintiffs having built a saw-mill on Garland’s land, under a parol agreement with him, and put machinery in it, gave the Belknap Savings Bank a personal property mortgage of the mill and machinery to secure their note to the bank. The machinery was so attached to the mill as to become a part of it.

Assumpsit. Personal property was attached on the writ, and subsequently the same property was attached by other creditors of the defendant. All the actions were entered at the same term. The plaintiffs’ writ was not indorsed by any one. Within the first four days of the first term subsequent attaching creditors appeared, and moved to dismiss the plaintiffs’ action and to quash the writ. The plaintiffs moved for leave to furnish an indorser.

Assumpsit, to recover the amount of the defendant’s promissory note. A referee found for the plaintiff, subject to the opinion of the court, upon the following facts: June 5, 1870, James R. Thurston hired $350 of the plaintiff, giving as security a mortgage of his homestead with the usual covenants of warranty. The homestead was then in fact subject to a prior mortgage, given by this defendant to Elias Towle to secure the note now in suit.

<p>Assumpsit, for money had and received to recover the amount of interest paid by the plaintiff town to the defendant, in excess of the legal rate, on three promissory notes payable to his order. One of the notes, for $1,000, was for money belonging to the defendant’s wife, which was loaned by him to the town, and for which a note was taken in his name. She authorized him to take the money and use it for her, and he indorsed the note to her before any interest was paid upon it. He collected the interest as it became due, and made a final settlement of the note with the town authorities in his own name. The interest was paid annually. All of the notes were paid within six years of the commencement of the suit. There was no demand before the bringing of the suit, which was done by direction of the selectmen, and without special authority from the town. The money was loaned upon an agreement that the plaintiffs should pay eight per cent, interest; and such interest was paid voluntarily, and with full knowledge of the agreement. The court at the trial term specially reserved the questions, — (1) Whether, upon the facts stated, the plaintiffs have any right of action; and (2) Whether any, and if so, what portion of their claim is barred by any statute of limitations. The notes were given in 1870.</p>

Bill in Equity, by stockholders of the Concord Railroad Corporation, for an injunction against the performance of a contract made by that corporation and the Boston & Lowell Railroad Corporation for a joint management, for five years, of the line of railroads running from Concord through Nashua and Lowell to Boston. [Copy op the Bill.] Merrimack ss. To the Supreme Court.

Assumpsit, for usurious interest received by Berry, the defendant’s intestate, from the plaintiff. Facts found by a referee. The plaintiff, having paid Berry more than six per cent, interest on notes given for hired money, made an assignment of his claim against Berry’s estate for the usury; and this suit is brought for the benefit of the assignee. At the time of the assignment, the defendant, as administrator, held two of the notes, and they had not been paid.

<p>A contract for the sale of goods is not taken out of the statute of frauds by the vendee’s preparation for receiving them, or by the vendor’s not including the invalidity of the contract among the reasons given by him for declining to receive part payment, and for declining to deliver the goods.</p>

Petition, to redeem land from a mortgage. Reported 60 N. H. 564. Facts found by the court. The defendant holds a third mortgage, given in 1871, and a fifth mortgage, given January 25, 1878, and the plaintiff holds a fourth mortgage, given in 1872, of the same land. The plaintiff, as holder of the fourth, seeks to redeem the land from the third.

Bill in Equity, by the administrator of Sarah Sleeper, for instructions as to thé construction of her will, the second item of which is, “I give, bequeath, and devise to the Christian Church of South Danbury, of which I am a member, and the only church there, all the rest, residue, and remainder of my estate, real and personal, wherever situated, to have and to hold forever for a perpetual fund, the use of which shall be annually applied for the support of preaching in said…

Appeal, from a probate decree appointing a guardian over the appellant. The application for the decree was made by the defendants as selectmen. In the probate court, Lord moved to dismiss the petition because it was made by selectmen, and not by the overseers of the poor, or by any relative or friend. This motion was not decided until the examination after return of the inquisition.

Case. Reported 59 N. H. 348. Second trial on review. Verdict for the plaintiff, which the defendants moved to set aside because the damages were excessive. The court denied the motion, and the defendants excepted.

At the annual meeting, held May 28, 1881, a resolution was passed to vote for seven directors for the ensuing year upon one ballot; and a committee was appointed to receive, sort, and count the votes, who, after the vote had been taken, reported the whole-number of votes 23,095. Of these, six of the seven persons whose names were upon the same ballot received 18,088 votes each, and the defendant received 17,981.

Assumpsit, for money had and received. The plaintiff offered to prove that the money sought to be recovered is the proceeds of a note belonging to him, and which he had placed in the hands of a bailee for safe keeping. The bailee delivered it to the defendant, who refused to deliver it to the plaintiff on demand.

<p>The right of exclusive possession, coupled with an interest or special property in a chattel, is sufficient to maintain replevin for it against one wrongfully taking or detaining it, though a third person has, at the time, a common or sole property in the chattel.</p> <p>The supreme court has original concurrent jurisdiction, with justices of the peace, of actions of replevin where the value of the property is less than $13.33.</p> <p>The qualification of a witness to testify upon a subject calling for expert testimony, is a question of fact to be found at the trial term.</p>

Action, for breach of the covenants of a lease. April 13,1873, the defendant leased to the plaintiff the Phoenix hotel in Concord, with the northerly half of the stable and other outbuildings connected therewith, for the term of two years and eight months, and covenanted to make all necessary repairs on the outside of the buildings upon notice to him.

Replevin, of a portable steam-engine, boiler, and fixtures. Defence,- denial of the plaintiff’s title, and title in the defendant. The plaintiff’s father owning the property, then in the possession of the defendant, sold it to him with the condition that the property was to remain the vendor’s until paid for, and if not paid for in one year, the vendor should have the right to repossess himself of it.

Peobate Appeal, from the disallowance of the plaintiff’s claim against William Yogler, in insolvency, upon the ground that the claim was not filed in the probate office within six months after the assignment, as provided by Gen. Laws, c. 140, s. 11. The assignment was made and sworn to by Yogler, November 3, 1879, but with the intention of not delivering it unless his creditors should press him by attaching his property.

<p>The holder of a dishonored note is bound to exercise ordinary and reasonable diligence in ascertaining the residence or business address of theindorser, and in forwarding notice of the dishonor to him accordingly..</p>

Replevin, of a piano. A referee found for the defendants. The plaintiff claimed title to the piano under a personal mortgage given December 20, 1869, by three persons to the plaintiff’s intestate to secure a note for $1,100. The defendants claimed to own the piano by purchase, December 10, 1875, from one of the mortgagors, who was then the owner subject to the mortgage.

In Equity. The material allegations in the bill are, that at the April term, 1870, of the supreme judicial court for this county, one Smith recovered judgment against one Kayes, upon which execution was duly issued and placed in the hands of one Haynes, a deputy sheriff, since deceased, for collection, with orders to levy it on certain personal property belonging to Kayes; that at the same term the defendant recovered judgment against Kayes, upon which an execution issued,…

Assumpsit. The plaintiff claims to recover $2,000, being the amount of a reward offered by the selectmen of Pembroke for the conviction of the murderer of Josie A. Langmaid, in October, 1875. Facts found at the trial term. The plaintiff, in October, 1875, was living in St. Albans, Vt., and, under date of October 9,1875, he caused a letter to be written to the selectmen, calling their attention to LaPage, who was subsequently arrested, tried, and convicted.

<p>Bill in Equity, to set aside an award of arbitrators. The opinion states the material facts.</p>

Foreign Attachment. Facts found by the court. Writ dated December 20, 1880.

Petition, for leave to appeal from a decree of the judge of probate, accepting the report of a committee to assign the defendant’s dower and homestead in the estate of her deceased husband, of whom the plaintiffs are the heirs at law.

Writ ok Entry. The plaintiffs are the heirs at law of Jesse Braley. The defendant claims under a deed from the administrator of Jesse Braley’s estate. April 8, 1874, Jesse conveyed the demanded premises to J ames and Exelia Braley, upon condition that the deed should be void if he should support James and Exelia, and the survivor of them, during their natural lives. James died January 5, 1875; Jesse, July 24, 1875; and Exelia, February 16, 1876.

Bill in Equity, by the administrator of Mary E. Elliot, for instructions as to his duty under her will dated September 4,1878, and a codicil dated December 29, 1879. [Copy of the will.] If my beloved mother, Mrs. Mary Batchelder, should survive me, I authorize her to take and dispose of, as she may see fit, by will.or otherwise, the use and income of all my estate' during her life, and if, contrary to my expectation, the same shall be insufficient for her ample and…

<p>The contract of the members of a mutual relief association, by which, on the death of one, the sum of one dollar, assessed on each survivor, is due to an appointee of the deceased, being one of his heirs or a member of his family, is a contract of life insurance within Gen. Laws, c. 175; and the amount of the insurance is not chargeable with the debts of the deceased.</p>

The fence-viewers, on a petition of the plaintiff to divide the partition fence of tbe parties, gave them ten days’ notice of the hearing. At the time appointed, the fence-viewers attended and divided the fence. The plaintiff was present at the hearing, but the defendant did not appear. Judgment was ordered for the defendant, and the plaintiff excepted.

Bill in Equity. The substance of the bill is, — In 1773 a Congregational church was organized in Francestown, which has continued to exist and support religious worship and preaching in tha,t town to the present time.

<p>Writ of Entry, to foreclose a mortgage given by George Taft to the plaintiff. The defendants’ title is founded on a sale of the demanded premises by the collector of taxes of Mason for the years 1873 and 1877. The sale for the tax of 1873 was made by Fox, collector for that year, to Barrett, one of the defendants. Subject to the plaintiff’s exception, the defendants were allowed to introduce the deed of Fox to Barrett, made in pursuance of the sale. The evidence tended to show that the selectmen who assessed the tax in 1873 were acting as such. The court ruled that it was unnecessary to show a regular election, and the plaintiff excepted. The defendants offered the original appointment or commission of Fox as collector, to which the plaintiff objected, because the town-clerk did not certify upon it and upon the record of the same on the town books the date of its record. It appeared from the appointment and record that the collector was appointed May 24, 1873, and took the oath on the same day. The date of the record was not stated on the town books. The next date following on the books is June 9, 1873. There was no other evidence tending to show when that record was made. To show the due assessment of the county tax for the year 1873, the defendants offered the record of the county convention for the year 1872. The plaintiff objected to its admission because it did not appear that the chairman and clerk were sworn; but the court received it, and the plaintiff excepted. There was evidence aliunde tending to show that the chairman and clerk acted as such, and that the clerk was sworn. Subject to the plaintiff’s exception, the court admitted in evidence a book, purporting to be the record of sales for non-resident taxes, and containing tbe record of the sale for the taxes of 1873. It was not dated, and there was no evidence, aside from the book itself, tending to show when it was made or recorded. It was produced by the present acting town-clerk, and the evidence tended to show that he received it from his predecessor as a part of the town records. Against the plaintiff’s objection, the defendants were permitted to show that the sale was made within the hours fixed by statute, the record being silent on that point. The record showed that the sale was made on the day named in the notice, and to the highest bidder.</p> <p>The plaintiff objected to the record of the sale for the tax of 1873, because it appeared from it that the land was set up to be sold to the bidder who would take the smallest quantity or share thereof, and pay the taxes and costs; but the court overruled the objection, and the plaintiff excepted. Against the plaintiff’s objection, the defendants were allowed to show that the land in question was sold to the person who would pay the taxes and costs for the least amount of laud. The evidence tended to show that in the action Taft v. Barrett, 58 N. H. 448, the record of the sale was amended by leave of court. Subject to the plaintiff’s exception, the defendants were allowed to read the record as amended. The plaintiff had no notice of the application to amend, or opportunity to be heard. The collector testified that the record as amended was correct. The plaintiff offered evidence tending to show that there was an excess of seventy cents in the ovexlay included in the tax of 1878. The court excluded the evidence as being immaterial, and the plaintiff excepted.</p> <p>The plaintiff objected that the sale for the non-payment of the tax of 1877 was invalid, because it did not appear that the notice of sale was published three weeks successively prior to January 1, 1878. The last publication was after that date. The newspapers containing the notices of the sale were produced by the town-clerk, but there was no evidence when they were filed with him. The record of the sales for 1877, as recorded in the book before named, was produced; but it did not show, and there was no evidence, when it was recorded, and the plaintiff objected to the admissioix of the recox-d, as furnishing no sufficient evidence of the filing of the papers, or of the account of sales; but the evidence was admitted, and the plaintiff excepted. The evidence tended to show that one of the notices of the sale for 1877 was posted at the railroad depot in Mason, and the plaintiff contended that it was not a public place within the meaning of the law. On this question evidence was introduced by both parties.</p> <p>The demanded premises were taxed in 1873 as non-resident, and were desciibed in the assessment roll as follows: “Steams farm, formerly owired by Samson Farnsworth, 150 acres.” There was evidence tending to show that the premises were conveyed to George Taft in 1871. No person was then living upon them. They had been previously owned and occupied by one Stearns for many years, and the next preceding owner and occupant for many years was Samson Farnsworth. They were a farm of about 150 acres, bounded as described. Both the plaintiff and Taft lived in the adjoining town of Townsend, Mass. The plaintiff claimed that the premises should have been taxed to Taft, the mortgagor, as owner. On this point, Russell, one of the selectmen in 1873, testified as follows: “We understood that Taft and Larkin bought the land of Stearns in 1870. There had been some question as to the ownership of the property, and so we taxed it in this way. We intended to do our business legally. We knew Taft was in possession, and had an agent acting for him. We did not know whether he in fact owned it or not. He redeemed the land when sold in 1871 and 1872. We taxed it in this way because there had been difficulty in previous years in collecting taxes assessed against Taft, who denied his ownership of the land, although he was in possession. I knew Taft claimed the land.” Goodwin testified as follows: “I acted as one of the selectmen in 1872,1873, and 1874, and as collector in 1871 and 1872, and the tax on these premises was committed to me for those years. I sold the Stearns farm, and it was redeemed by George and James Taft. Both were present, but which paid the money I cannot say. Both came together, and paid the tax.” Barrett, the other selectman for 1873, testified as follows: “I did not know the owner of the premises. I had no reason to suppose Taft owned them. I supposed he did not own them.” The premises in 1877 were taxed to “owner unknown.” The title was in litigation when the taxes for that year were assessed.</p> <p>The defendants introduced evidence tending to show that the list of non-resident taxes for 1873, lodged with the deputy secretary of state, was lost; and a record of the list in the office of the secretary of state, purporting to be made by the then deputy secretary, was produced by the present deputy secretary, and admitted without objection, to prove the fact that such list was properly deposited with the deputy secretary. The plaintiff claimed that the amount of the winter highway tax was incorrectly stated as $9.80 in the record, when it should have been $9.60. No question was made that if stated at $9.80,-the error was material. The evidence tended to show that Fox, collector for 1873, made the notices of the sale from the list deposited with the deputy secretary, and that the amount of the winter highway tax was correctly stated therein.</p> <p>The only questions which either party desired the jury to determine were, — 1. Was the depot at which the notice of the sale was posted a public place? 2. Did the list lodged with the deputy secretary of state at Concord contain the true amount of the tax on the premises in question? 3. Did either of the selectmen, at the time of the assessment of the tax in 1873, know who the owner of the land in question was? The jury answered the first and third questions in the affirmative, and the second in the negative. On the last question the defendants requested the court to instruct the jury “that knowledge of the true owner by one of the selectmen would not invalidate the title of a Iona fide purchaser without notice of any such knowledge of the true ownership.” There was no evidence that either of the defendants had notice or knowledge of the facts as to the ownership of Taft, as testified to by Russell and Goodwin. The court declined to give the instructions requested, but instructed the jury that “if either of the selectmen knew who was the actual owner, or who was in possession claiming to be the owner, it would be such knowledge of the ownership as would require them to tax the property to the person making such claim of ownership, as the owner.” To the refusal to give the instructions requested, and to those given, the defendants excepted. The defendants moved to set aside the second finding as against evidence; and if the plaintiff’s right to recover depends upon the answer of the jury to that question, the finding on this point should be set aside, and a new trial had.</p>

Bill in Equity, for specific performance, alleging that the city of Nashua conveyed to the plaintiff a lot of land on Sargent’s avenue in Nashua, October 14, 1872, the deed containing a condition “that any house built on said lot shall cost not less than $2,500, and shall be not less than two stories high, and shall be erected within three years of the delivery of this deed by the city, and in case of any failure of compliance or violation on the part of the grantee or his…

Assumpsit. Facts found by a referee. In 1880, Otterson & Co. were carrying on business in an iron foundry at Nashua, and in December of that year they became embarrassed from want of funds ; and thereupon they made a sale and transfer of their business and property to the defendants.

Writ on Entry. The defendant pleaded non tenure to all except a triangular piece of land about one hundred and twenty-seven rods in length and eiglity-nine feet in width at the base. It appeared that the plaintiff owned the southerly part of lot No. 11, and the defendant the northerly part of lot No. 10, of the back lots in the Brenton farm, so called, in Litchfield, and that the west line of these lots is the east line of the home lots of Nos. 2,10, and 11 of that farm.

Trover, for sundry promissory notes, $45 in bank bills, and a piano. The defendant is the administrator of Hr. Adolphus Tremblay, who died May 12, 1879. He was appointed administrator May 28, 1879. The defendant is sued personally, and not as administrator, and he did not elect to testify. Writ dated December 30, 1879. The plaintiff offered herself as a witness, and was admitted, subject to exception.

Case, for negligently causing the death of the plaintiff’s intestate by the defendants’ railway train while attempting to cross their track in his carriage at the Elm street crossing in Nashua. The defendants claimed that the deceased was negligent in driving upon the crossing, and that his death was caused by his negligence? while the .plaintiff claimed that the deceased was exercising ordinary care.

<p>Debt, on the bond of the defendant Wood as treasurer of the plaintiff railroad. Plea of performance. Replication denying performance, and alleging that Wood as treasurer received certain moneys belonging to the plaintiffs which he has never accounted for, specifying among other sums the following: “On or about Sept. 30, 1875, $4,261.” Defendants also pleaded the discharge of Wood in bankruptcy April 15, 1879. The cause was heard by a referee, who reported in favor of the plaintiffs, subject to the opinion of the court, upon the following statement: Under the above item of $4,261 the plaintiffs offered evidence to prove that in September, 1875, the defendant Wood made out a bill in favor of himself against the corporation for services as treasurer, &c., to that amount, and that he took the amount of it from the funds of the corporation in his hands as treasurer as in payment of the same; that said bill had never been approved, or the payment thereof authorized, by the directors or by any proper authority of the corporation ; but that when the bill was presented to the directors, at their meeting held a few days previously, for approval, it was by their vote referred to a committee, consisting of the president of the board, and Mr. Hosford who was not a member of it, for adjustment ; and no further action relative to the same had been taken by that committee or the directors. The plaintiffs claimed that said bill was unreasonable, and not a proper and valid claim against the corporation. But the defendants, for the purpose of explaining what they claimed was an ambiguity in the words “for adjustment” in the vote referred to, and also of justifying the bill and the taking payment thereof by said Wood as aforesaid, proposed to offer the testimony of a majority of the directors, who were present at the meeting above mentioned, to show that they understood at that time that the bill was to be paid in full as presented. But the referee ruled that the proposed evidence would be incompetent and insufficient to show such an approval and allowance of the bill as would justify the payment of it by said Wood to himself, as above stated.</p> <p>The defendants further offered evidence to prove that there was a contract between the corporation and the Nashua & Lowell Railroad, by which the latter agreed to take and operate the road of the plaintiffs when constructed, and pay a rent therefor of six per cent, on the cost of its construction; that when said Wood took said sum of §4,261 as above mentioned, payment was duly entered by him on the books of the corporation in his charge as treasurer-, and his receipted bill placed on file as a voucher therefor ; that subsequently, when examination relative to the cost of construction was made by a committee of the two parties to the contract for the purpose of ascertaining that cost so as to fix the rent, the amount of cost as found by the committee was the same as it appeared from the accounts of the treasurer, and included the sum in question, and that the rent has been reckoned and received by the plaintiffs accordingly; and the defendants claimed that under the circumstances the plaintiffs were estopped to deny the propriety or validity of the item referred to.</p> <p>But the referee finds that the above proceedings were had without .there being any knowledge, until afterwards, on the part of the directors of the corporation or of the committee, of the transactions by said Wood relative to said bill, or of the entry of the payment, &c., in the accounts of the corporation, or of its being included in the cost of construction, as above mentioned, and without any such neglect to examine the accounts of the corporation so as to see what they included, as should bar them or the corporation from now alleging such want of knowledge; and holds that the plaintiffs are entitled to recover of the defendants as damages in this action the amount of the excess of the sums specified in the plaintiffs’ replication, and which had been taken by said Wood from the funds of the corporation in his hands as treasurer over the amounts which were due to him from the corporation on the claims for which they were so taken by him. And the referee further finds that a discharge in bankruptcy had been duly granted to said Wood, as alleged in his plea relative thereto.</p> <p>On motion of the defendants’ counsel, the report was recommitted generally to tbe referee. Subsequently tbe defendants filed in tbe trial term a motion that tbe report be again recommitted, with instructions to report the facts relative to the matters set forth in the motion. Motion denied, and the defendants excepted.</p>

Bill in Equity, to settle a partnership. Facts found by a referee. The plaintiff and the defendant were copartners in the business of cutting and selling wood and timber. The plaintiff, being the owner of certain land called the Doctor lot, in November, 1870, verbally agreed to sell to the defendant one undivided half of the wood and timber standing thereon for $4,000, and that the same should then be the property of the firm.

Assumpsit, upon drafts accepted by the defendant, who pleaded in bar his discharge in bankruptcy. The plaintiffs filed two replications stated in the opinion, to which the defendant demurred.

Motion by the respondent for a change of venue. At the April term, 1881, thirteen indictments were returned against the respondent for embezzling the funds of the Ashuelot Savings Bank in Winchester, and for various other offences connected with the alleged embezzlement.

Trespass quare clausum. Before, after, and. at the time of the trespass the defendant claimed title to the locus in quo, and so informed the plaintiff, who, relying upon the statements of the defendant, and in good faith believing that the title was in question, brought his action in the supreme court.

Debt, on the statute (G. L., c. 236, s. 19). Plea, the general issue. Verdict for the defendant.

Petition, for a new highway in Hinsdale over the bridge crossing the Connecticut river to Brattleborough, Vt. The petition was sent to the county commissioners. Before the hearing the town of Chesterfield was made a party defendant. The commissioners made report that the cost of making the proposed highway would be excessively burdensome to the defendants, and that the public exigency did not justify the imposition upon them of so great a burden.

Wbit oe Entby. Plea, nul disseizin. Facts found by the court. March 18, 1878, the plaintiff began a levy on the homestead premises of the defendant James Duff, under an execution issued on a judgment in his favor against Duff. On the petition of the defendant Mary Duff, James’s wife, a homestead was set off to her, April 1, 1878. On the same day the balance of the land was set off on the execution in part satisfaction thereof, and the plaintiff was put in possession.

Writ of Entry, brought April 28, 1877, by a devisee of Cephas C. Chamberlin, against John E. Chamberlin, for a tract of land in Lisbon. Facts agreed. February 17, 1855, the defendant and one Morse, being jointly seized of the demanded premises, conveyed the same, by their joint mortgage deed of that date, duly executed, and recorded July 19, 1855, to one Atkinson to secure notes payable by them to him.

Case, for deceit in the exchange of the defendant’s horse for the plaintiff’s horse and carriage. Plea, the general issue, with a brief statement that by the contract no price was put on any of the property; and that the plaintiff warranted his horse, and by breach of the warranty (fully set forth in pleading as a part of the exchange) the defendant was damaged to the amount of $60. Facts found by a referee.

“Fifth. I hereby direct and order my executor to dispose of all my personal property and real estate, not herein specifically devised and bequeathed, to the best possible advantage as soon as may be after my decease, and (after the payment of my just debts and funeral charges) pay over to the legatees herein named, or their legal representatives, the avails thereof as herein directed.” The executor filed and settled his account in the probate court March 25, .1879, showing a…

Case, for flowing land. Plea, the general issue. Facts found by referees, with a general award for the defendants. A dam and mill were erected at the outlet of Grafton pond in 1818, the dam has been maintained there in substantially the same condition ever since, and the dam and water have been used in the same manner without interruption. From 1828 to 1849, Phineas Gage owned the dam and mill, and one of the tracts of land claimed to have been wrongfully flowed.

Assumpsit, on a promissory note given by the defendant to the plaintiff’s husband now deceased. The plaintiff sues as administratrix without appointment, under Gen. Laws, c. 198, s. 10, and has secured the claim by attachment of the defendant’s property. Since the commencement of the suit, Weeks has been appointed administrator of Merrill’s estate, and declines to indorse the writ and prosecute the suit.

Trover on a sheriff’s receipt. Defence, title in one of the defendants. The plaintiff attached the goods described in the receipt as the property of Ray, and the creditors obtaining judgment, executions were issued, and the goods demanded and refused. Ray had been a tailor and a dealer in clothing and furnishing goods, and the defendant Putnam, his sister, had worked for him in his shop.

Case, for negligence in setting fire to brush on, the defendant’s land in a time of high wind blowing towards the plaintiff’s land, and so carelessly managing the fire that it escaped to the plaintiff’s land and burned his property.

<p>When two persons are travelling in the same direction upon a highway, with their respective carriages, neither is compelled to travel behind the other, and neither has the exclusive right to precede the other. “The law of the road” requiring travellers who meet to turn to the right does not apply in such a case. The rear traveller may pass to the front when he can do so in safety, by turning to the right or left, using ordinary care and prudence to do no damage to the other.</p> <p>If a traveller under such circumstances is damaged by the attempt of the other to pass to the front, and through the fault of the other, he may recover therefor if his own fault did not contribute to the injury.</p>

Indtctment, for embezzlement, charging that the respondent, David H. Butman, on &c., at &c., “being then and there the partner of the said John M. Thompson in the business of grinding and milling corn and grain, and of purchasing and vending of com and flour, at Lebanon aforesaid, did embezzle and fraudulently convert to his own use property of the said John M. Thompson to the amount of $500, — namely, one hundred bushels of corn, of the value of $100; twenty barrels of…

Case, for diverting water from the plaintiffs’ grist-mill. The following facts were found by a referee: The plaintiffs are owners of a grist-mill on the easterly side of the Ammonoosuc river in the village of Lisbon, and the defendants are owners of a box-factory and lumber-mill on the westerly side; and both parties have heretofore taken water for the use of their respective mills from the same dam. No question of prescriptive right was raised at the trial.

Trover, for a horse, which was the individual property of the plaintiff, taken by the defendant, as tax-collector of Stewartstown, and sold to enforce collection of a tax assessed to the firm name of VanDyke, Peabody & Co., for the year 1877. Facts found by a referee.

<p>A common carrier receiving goods to be forwarded to points beyond his route, in case of an interruption of the stipulated line of transportation, is bound to use all reasonable means such as a prudent owner being present would take to protect the property from unnecessary loss or damage.</p> <p>What constitutes reasonable care in such an emergency, and whether it is the duty of the carrier to forward the goods by a different route, are questions of fact to be determined with reference to all the circumstances.</p> <p>Neglect to notify the consignee of a change of route does not render the carrier liable for loss or damage happening from delay in the delivery of the goods, if such notice would not have avoided the injury.</p>

Assumpsit. Facts agreed. The defendant owes the plaintiff the amount claimed for labor performed by the plaintiff in erecting a house for the defendant. The plaintiff’s lien on the house, under G. L., e. 139, ss. 11, 12, is secured by an attachment made in this suit within the prescribed ninety days. Similar liens of other workmen on the same house are secured by attachments made in other suits at different times within the ninety days.

BriJj in Equity, for the specific performance of the defendants’ contract to convey to the plaintiffs the spruce and fir timber on a certain lot in Rittsburg. In December, I860, Oscar Baldwin, the owner of the lot, gave the defendant Chase a bond, stipulating to give him a deed of the lot if he paid $50 by March 15, 1867, and $350 thereafter in three equal annual payments with interest.

Assumpsit, against Adna B. Lane and Jesse Lane upon a promissory note signed by them and given to the plaintiff, Towle, as collateral security for a note of Adna, of the same amount, of an earlier date. Facts found by a referee. Adna went into bankruptcy, and pending the proceedings be paid a part of tiro amount due, which Towle indorsed upon the note.

Assumpsit, upon a written guaranty. The plaintiff conveyed to Mead, at the request of Lamprey, six lots of land with a house upon each, and Mead gave his six promissory notes payable to Lamprey or order, and executed to Lamprey six mortgages, one of each lot, and each to secure one note.

Information, in the nature of a quo warranto, praying for due process of law against William D. Burnham, to answer by what warrant he claims to exercise and enjoy the office of prudential committee in school-district number five in Epping. The following facts were alleged: The respondent has, since the second day of March, 1882, used and exercised, and still continues to use and exercise, the office aforesaid, without warrant or lawful authority therefor.

Bill in Equity, filed March 2, 1882. Facts agreed. Frances M. Penhallow, the plaintiff, who brings this bill by James T. Drown, her guardian, is the widow of Oliver W. Penhallow, deceased. The defendants are the executors of the will of Harriet L. Penhallow, deceased, who was the only child of Oliver W. by a former wife. Oliver W. died testate in July, 1873, leaving real and personal estate.

Probate Appeal. Facts agreed. Isaac 13. Hovey died testate January 10,1872, leaving a widow (the appellee) and one child (the appellant) by a former wife.

In Equity. The substance of the bill is, that in November, 1875, one John Marsh and his wife Polly, by warranty deed in common form, conveyed their homestead, of the value of $400, to the defendant, and in consideration thereof she gave them a bond, in the sum of $400, to nurse and care for them during their lives, with the condition that the deed should be void if she did not fulfil the obligations of the bond; that the defendant abandoned John and Polly, April 7, 1-879,…

In Equity. The bill alleges that the plaintiff, September 13, 1877, sued out a writ against the defendant George Janvrin, and on the next day attached as his property a certain tract of land with the buildings thereon, in Exeter, known as the Academy lot; that he recovered judgment at the October term, 1878, for $380.64 damages and $37.25 costs, upon which an execution was duly issued and levied upon a portion of said Academy lot with the stable thereon as the property of…

<p>The foes of referees, as allowed by the court, must be paid by the county in cases wherein the parties are entitled to a trial by jury, in cases referred, without the consent of the parties, by order of court in term time, and in cases referred with or without their consent by a justice in vacation. In all other cases the court may order that the whole, a part, or none of the fees be paid by the county.</p>

<p>Assumpsit upon a promissory note purporting to be signed by the defendants, and given to take up an older note signed by two of the defendants. There was no denial of the signatures under the 46th rule of court. The defendant Josie M. F. Buzzell, whose name was not upon the older note, pleaded coverture with the defendant Samuel H. Buzzell, and that the ¡Dromise was made in his behalf and as surety. Replication, denying that the promise was made as alleged, and issue upon that. The testimony tended to support the plea. The signature of Josie was written by her husband without her knowledge. Several years before, she gave her husband authority to sign her name to his notes as surety and for his benefit. She was requested by the plaintiffs to pay the note. At first she denied that she gave her husband permission to sign her name, but being reminded that she had given him authority before, she claimed that the liability, if any, was only as surety. The plaintiffs threatening to prosecute her husband for forgery, she promised to pay if the bank would not prosecute him. The plaintiffs claimed that the understanding of the officers of the bank was, that the husband had authority to use her name as principal to the note, and offered to show the representations of the husband upon the subject. Subject to exception, the evidence was excluded. The plaintiffs also claimed the right to recover if the signature of Josie was a forgery, and offered to show that such was the fact, but were not permitted. A verdict for the defendants was taken, subject to the plaintiffs’ exception.</p>

Assumpsit, for money paid the county jailor for charges in keeping prisoners committed by the Dover police court for the year ending March 1, 1881. The offences were all committed in Dover. Of the items charged in the account, 8202.57 was paid on account of persons convicted of being drunk in the streets or in public places. No question is made on any other item in the account.

Case, for deceit. The first count in the declaration alleges that the defendants falsely and fraudulently represented to the plaintiffs that the defendant Josie M. F. Buzzell was principal upon a certain promissory note signed by her and by the defendant Samuel II.

Trespass, for taking and selling the plaintiff’s horse. Plea, the general issue, and a brief statement that the defendant, as collector of taxes, lawfully took and sold the horse as a distress for taxes. The defendant made no return of his proceedings upon the warrant accompanying the tax-list.

Trespass, for assault and battery. The court permitted the plaintiff to testify that the defendant made threats to do him bodily harm both before and after the alleged assault, and rejected the record, offered in evidence by the defendant, of the conviction of the plaintiff upon an indictment for an assault growing out of the same affray mentioned in the plaintiff’s writ.

<p>Bill in Equity, in which the plaintiff, as executrix of one Tebbetts, prays the advice and instruction of the court as to what, if any, tax the estate of the deceased is liable to pay, under Gen. Laws, c. 64, which provides that “All estates settled in the probate courts of this state, and all transfers of property from the dead to the living, by gift, bequest, or devise, and every succession made under the laws of this state regulating the distribution of intestate estates, exclusive of the just indebtedness of each and all of said estates, shall pay one per cent, on the value of said estates, to be deducted from each gift, bequest, or distributive share, by the administrator or executor, so that each gift, bequest, or distributive share shall pay its proportional rate: Provided, that all legacies or property passing by will or by the laws of this state to husband or wife, children or grandchildren of the person who died possessed as aforesaid, shall be exempt from tax or duty.”</p> <p>The only question intended to be raised is that of the constitutionality of this provision.</p>

Assumpsit, to recover $100 from each of the defendants, received by them for services as directors of the Lexington Mills, from June 24 to August 19, 1881. The two actions were heard together by the court. At a meeting of the corporation, holden June 24, 1881, the defendants and one Marshall were chosen directors, and the latter was also chosen treasurer and general manager. The defendants were not stockholders, but attended the meeting and voted on proxies.

Review, by the defendant. The original action was assumpsit on a promissory note. At the October term, 1878, Taylor recovered judgment for $700 debt, and costs taxed at $81.70, upon which execution issued, and was placed in the hands of an officer for collection. March 4, 1879, the officer received of Gilman $797.33, which was paid to Taylor.

<p>Technical objections relating to matters of form are waived unless insisted upon at the trial; and a report or verdict will not ordinarily be set aside for a formal defect which might have been obviated by amendment, if the objection had been seasonably made.</p> <p>A report of a referee will not be set aside on account of variance between the declaration and the proof appearing from reported facts, when the objection was not taken at the trial.</p>

<p>Foreign Attachment. Issue between the plaintiff and claimant. The facts are substantially the same in both cases. The defendant, for a valuable consideration, gave to the claimant an order for his future wages, which was accepted by the trustee and recorded. After receiving the order, the claimant supplied the defendant with groceries and other necessaries, and also, upon several occasions, gave to him or to his wife small sums of money, for the purpose of buying necessaries elsewhere, and for purposes which did not appear. All the transactions were had in good faith, and with no intent to defraud or hinder the defendant’s creditors.</p>

Bill in Equity, by an executor, for instructions as to cutting timber on lands held in trust, and as to tbe distribution of a trust fund. Heard on bill and answers.