Volume 62 — New Hampshire Reports

<p>Assumpsit, for a dividend of surplus. Facts found by the court.</p>

Petition, for a mandamus, commanding the defendant to deliver to the plaintiff the records of the assessors of Concord. Facts agreed. The parties are members of the board of assessors. The fifth chapter of the revised ordinances of the city requires the board to “ choose one of its members clerk,” annually, on the third Tuesday of March. If this ordinance imposes upon the board a legal duty of annual election, a mandamus is to be issued.

Trover. Facts found by a referee. The plaintiff’s goods were in the possession of Pomfret, under an agreement that they should be his when he paid for them. Without paying for them, Pom-fret absconded, and gave a bill of sale of all his “ claim, right, and title to ” them to Carpenter, one of his creditors, who had notice of the plaintiff’s claim. Carpenter sold the goods to the defendant.

Covenant broken. Facts found by a referee. August 25,1871, the defendants, by deed containing full covenants of warranty, conveyed to the plaintiff a lot of land in Concord, particularly describing and bounding it. The north line is described as beginning at a particular point “ on said Warren street,” and “ thence easterly by said street about 48 feet.” The easterly line is described as extending by a given course “ about 35 feet” southerly from Warren street.

<p>A municipal corporation, possessed of a system of water-works constructed under a legislative charter for supplying water to the inhabitants and for extinguishing fires, and under the exclusive control of a water commissioner, with hydrants under the control of the public fire department, is not liable in the absence of a statute giving the remedy for an injury, to'Ta person travelling upon the street, caused by his horse taking fright at a stream of water thrown from a hydrant by firemen who are testing the capacity of the hydrant by request of the mayor of the corporation, in presence of the mayor and city councils, who are engaged in determining the most suitable location for the erection of an engine-house for a steam fire engine.</p>

<p>The mayor of a city is empowered to administer official oaths to all city officers.</p> <p>The acceptance of a collector’s bond, filed within the statutory period of six days, by the mayor and aldermen of a city, after that time, is a valid approval of the bond, and relates back to the time of filing.</p> <p>In the assessment of resident land for taxation, the statue does not require a more definite description of the land than that the name of the owner and the value of the land be given in the invoice.</p> <p>The signing of the official certificate of the assessment by a majority of the board of assessors is sufficient.</p> <p>An error of description in the original memorandum of one of the assess, ors and not appearing in the general invoice, as made up and signed by the board of assessors, does not vitiate the assessment.</p> <p>In the sale of land for taxes, the statute does not require that the description of the land in the notices of sale be the same as in the assessment. It is sufficient if it shows the land to be the same.</p> <p>The taking of an official oath is sufficiently proved by a record showing that the oath by law prescribed has been taken, without showing before whom it was taken, or in what official capacity he administered the oath.</p> <p>The date of a tax-collector’s warrant shows, with, sufficient certainty, the year for which the tax is assessed, without an express statement of that faet.</p> <p>The tax upon real estate under mortgage is properly assessed against the mortgagor in possession.</p>

<p>When a sheriff, on a writ against one of two copartners in trade in a store, by consent of the other copartner attaches the goods, takes possession of the store, and makes such other copartner his keeper, the debtor is excluded from possession; and another officer, who, with another writ against the same debtor, and having knowledge of a subsisting attachment, by consent of the debtor enters the store and attaches the same goods, is liable in trespass to the keeper having possession under the first attachment.</p>

Petition, for a writ of mandamus, filed by William E. Chandler, who seeks the mandate prayed for, as a citizen of this state, and as well in behalf of all other citizens of the state who may desire to join him as petitioners in this application as in behalf of himself.

<p>Under the 46th rule of court, providing that the signatures and indorsements of all instruments declared on shall he considered as admitted at the first term, unless notice be given upon the docket that they are disputed within the first four days of that term, and an affidavit filed that such denial is not for the mere purpose of delay, if the execution of a promissory note, specially declared on to have been executed by the defendants as copartners, is not denied, both the genuineness and authority o£ its execution are taken as fully and conclusively admitted for all purposes, and no evidence to controvert either is received until the defendants are relieved from the operation of the rule.</p> <p>In a commercial partnership, each partner is, in contemplation of law, the general and accredited agent of the partnership, and may bind all the other partners by his acts in all matters within the scope and objects of the partnership.</p> <p>When one seeks to hold a non-commercial partnership upon a negotiable promissory note, he must show that the note was executed by the authority, or with the knowledge and consent, of all the partners, or that it was necessary in the course of their business, or usual in similar partnerships, for one partner to give promissory notes in the name of the firm.</p> <p>A negotiable promissory note, received for value before maturity in the ordinary course of business without notice of infirmity, in the hands of an indorsee as collateral security, is freed from defences by the maker.</p>

<p>Case, for negligence. Facts found by a referee. January 17, 1881, the plaintiff was employed by the city of Concord to clear away an accumulation of snow and ice upon a crossing upon Main street. While he was in the act of shovelling, facing southerly in a bent posture, the defendant approached from the north with a horse and sleigh, and drove against him, throwing him down and causing the injuries complained of. The accident occurred about noon, at which hour there is usually a large amount of travel at the place of the accident. The defendant was seated in a low sleigh directly behind his horse, looking straight ahead, and was on his right hand side of the centre of the street, but did not see the plaintiff until he ran against him. He was aware of the usually large amount of travel upon the street at that time of day, and was driving at a proper rate of speed, and with bells upon his horse.</p> <p>The plaintiff was also aware of the usually large amount of travel upon the street at that hour, and looked northward, for the purpose of guarding against accident, about three minutes before the collision, 'and observing no approaching team, resumed his shovelling in the posture described. The repairs which he was making were necessary, and were required four or five times each winter. It was necessary for him to be in the posture above described. He was in the exercise of ordinary care consistent with the performance of his duty, and no negligence on -his part contributed to the accident. The defendant’s negligence caused the accident, and consisted in not keeping such a lookout as would have enabled him to discover the plaintiff in season to avoid driving against him.</p> <p>The defendant claimed that the plaintiff was bound to use the same degree of care while laboring upon the street that a person crossing the street on foot is bound to use; that, upon the facts stated, the referee ought to find that the plaintiff did not exercise such care; that his lack of such care contributed to his injury,— and therefore that the defendant is not liable. The defendant also claimed that ordinary care on the part of the plaintiff required that he should have erected a barrier to hinder teams from travel-ling upon the portion of the street where he was shovelling, and that his neglect to do so contributed to his injury. So far as any question of fact is raised by this claim, the referee finds otherwise. The defendant moved for a nonsuit, which the referee denied; and the defendant excepted.</p> <p>Upon the day following the accident, the defendant called upon the plaintiff and talked with him about the injury. Subject to the defendant’s objection, the plaintiff was permitted to testify to the conversation.</p> <p>The defendant moved to recommit the report for a further finding of facts, without a further hearing, the nature of which it is not necessary to state. The court denied the motion, and ordered judgment on the report for the plaintiff; and the defendant excepted.</p>

Case, for deceit in the sale of standing timber. The alleged deceit consisted in representing that the defendant was the owner in fee of the land on which the timber was standing, when in fact he was the owner of a life estate only. Facts found by a referee. The land on which the timber stood was devised to the defendant for life, remainder to his heirs in fee.

Covenant, to recover damages for the breach of the covenants contained in the defendant’s deed to the plaintiff, dated January-17, 1878, conveying lot 1889 on the Amoskeag Company’s plan of lands on Park street in Manchester. The deed contained covenants of title, of seizen in fee simple, of authority to convey, and against incumbrances.

Bill in Equity, praying that Sulloway may be required to render a full account of all moneys received and paid out by him as assignee of the plaintiff and the defendant Chase, and of all accounts and demands collected or in his hands ; that a receiver be appointed, and that the funds, demands, and accounts in the hands of Sulloway may be placed in his hands, and the debts due the firm collected and converted into money; that” any surplus thereof remaining be distributed to…

Bastardy. The complainant and defendant both live in Pittsfield. The complaint was sworn to before a justice of the peace at Pittsfield, and the warrant for the arrest of the defendant was issued by the same justice, and returnable before some justice of the peace for the county of Merrimack.

Assumpsit, for money had and received. Facts found by a referee.

Petition, to determine the question of the defendant’s homestead right in a house and land in Nashua, under Gen. Laws, c. ,138, s. 20. Facts found by the court. In June, 1881, the plaintiff, having an execution against the defendant's husband, proceeded to levy it upon his right in equity to redeem'the premises from a mortgage. He applied to the officer having the execution to assign a homestead in the premises to his wife.

Petitions, for assessment of damages for flowing the defendants’ lands, under Gen. Laws, c. 141, ss. 15, 16, 17.

Assumpsit, to recover money paid for board of Woodward at the asylum for the insane. Upon the petition of Woodward’s wife, the court of probate for this county ordered an inquisition, and upon the return thereof decreed him to be an insane person, committed him to the asylum, and appointed the defendant his guardian. Woodward has a wife and children, and property in the hands of the defendant, as guardian, valued at about three thousand dollars.

• Assumpsit, for money had and received. The plaintiff’s wife, in her last sickness, having in her possession $150 in money belonging to the plaintiff, in his presence and with his consent delivered the same to C. in trust as a gift of $50 to each of their three minor children. All the parties understood that the gift was complete.

Quo Warranto, to determine the title to the office of third supervisor'of the town of Temple. Facts found by a referee. The defendant’s full name is Elias Everett Colburn; and there was in the town no other person named Elias E. Colburn, or E. Everett Colburn. At the November election in 1880, the first ballot for third supervisor was declared void, and no one claims under it.

<p>Case, for personal injuries. After the trial, and a verdict for the defendants, the plaintiff moved to set the verdict aside because the foreman of the jury was an uncle of the defendants’ treasurer, a stockholder in the corporation, and a witness on the trial. The juror was regularly drawn from a town in the county, and had been in attendance as a juror eight days before the trial. The juror understood that the defendants’ treasurer was a stockholder. Motion denied.</p>

Case, for damages from a defective highway, tried on the general issue. After the jury had received general instructions, which included the instruction that if the injury was in any degree the result of the plaintiff’s want of ordinary care, the verdict-must be for the defendants, by request of the defendants’ counsel1 the jury were directed to answer this question : Did the injury to the plaintiff occur in consequence of any neglect or fault on his-part ?

Assumpsit, to recover a gratuity voted in aid of tbe construction of tbe plaintiffs’ railroad. Facts found by referees.

Bill in Equity, alleging that October 21, 1875, the defendants recovered a judgment against one Putnam for $2,009.39; that execution was issued thereon November 4, 1875, returnable on the first Tuesday of May, 1876; that at the date of the judgment Putnam was the owner of considerable real estate in Weare, including a homestead, which he and his family occupied and have continued to occupy since that time to the present; that, on the application of Putnam, a homestead was…

Case, for damages from defective highway. Facts found by a referee. The plaintiffs claimed to recover for damages sustained by their horses, harnesses, and sleigh, by reason of a defective highway, the alleged defect being obstructions and incumbrances by snow.

Replevin of a sewing-machine. Facts found by a referee. In March, 1879, the defendant received from the plaintiffs a sewing-machine, and signed an agreement acknowledging the receipt of the machine of the value of twenty dollars, and agreeing to pay the plaintiffs for the use of it five dollars per month until the amount of twenty dollars was paid, and then to return the machine to the plaintiffs or pay one cent for it.

Trover, for a horse. Facts found by the court. June 25, 1878, the plaintiff sold to the defendant a bay horse, warranted sound and kind, for $100. The sale was at the plaintiff’s place of business in Boston, Mass., and the defendant took the horse to his home in Manchester. Upon using the horse the defendant ascertained that he was subject to fits; and on July 5 he went to Boston, saw the plaintiff, and requested him to refund the $100, take back the horse, and pay damages.

Assumpsit, to recover for two weeks’ labor for the defendants. Plea, the general issue. Facts found by the court. The plaintiff is a minor. She entered the service of the defendants October 18, 1881, and left it January 1, 1882, and the services for which she seeks to recover were rendered during the two weeks immediately prior to and including the day last named.

<p>The rights of attaching creditors, who, as against their common debtor, have equal claims to the satisfaction of their respective debts, depend on strict law; and if one of them, through want of regularity in his proceedings, loses a priority once acquired, it will not be restored by amendment.</p>

Foreign Attachment. The trustee is the town of Hancock. The plaintiffs claim to charge the trustee for the amount of five per cent, on the appraised valuation of the town for the year 1874. The warrant for a special meeting of the town, held January 25, 1875, contained the following article: “Second.

<p>A plaintiff who by reason of his and the defendant’s negligence has been compelled to pay damages to another may recover- indemnity, although hut for his own negligence the injury would not have happened, if at the time it occurred he could not, and the defendant could, have pre vented it by ordinary care.</p>

Bill in Equity, praying the advice of the court. The bill alleges that the deceased left a will, which has been duly proved, containing among other provisions the following: “I give and devise to the city of Nashua my farm, situate on the Concord road in said Nashua, as deeded to me by Joseph Greeley, containing one hundred and sixty acres more or less, at the termination of the lease at my decease to be kept and held by said city for all time, to be used for farming…

Appeal, from a decree of the judge of probate. The plaintiff sets forth that he is administrator of the estate of A; that upon his petition the defendant was cited before the probate court to answer a complaint charging her with embezzlement of the effects of the estate; that after a hearing the judge of probate decided that the charges were not sustained; that he in behalf of the estate, feeling himself aggrieved by the decision, claims an appeal “because he believes said…

Bill in Equity, to enforce contribution under the following contract of mutual indemnity: “ Whereas, in doing the business of the Hope Steam Mills Company it is convenient and advantageous to all to use the notes and paper of said company with an indorser, guarantor, or surety, and not convenient for all the members of this corporation to put their names upon such notes or papers, although all are equally interested therein; now, in consideration of the above, it is mutually…

Writ oe Entry. Facts found by a referee. The controversy was upon the question of the true location of the boundary line of the parties’ lands. The defendant’s evidence tended to show that Richardson, under whom the plaintiff claims, and who owned and occupied the plaintiff’s lot from 1816 to 1877, during all that time recognized the boundary line as now claimed by the defendant.

Bill in Equity, against Jarib S. Herrick, Sarah E., his wife, James L. Bolster, and the administrator of the estate of John W. Herrick, deceased, praying that a mortgage given by Jarib S. to John W., and to Bolster may be assigned to the plaintiffs, and for a foreclosure thereof. Facts found by the court.

<p>B ill in Equity, to enforce the individual liability of the stockholders of the Charlestown Boot & Shoe Company. Reported 60 N. Tl. 363. Seventeen of the defendants appeared and contested the suit. Five of the other seven defendants did not appear. Dunsmore and Charles Willard, the other two defendants, appeared, and moved for leave to be joined as plaintiffs. The representatives of Baldwin, a deceased stockholder, and George Willard, who had bought Baldwin’s stock and left the state, were not joined as defendants in the bill. Facts found by a referee.</p> <p>Dunsmore’s claim is a judgment recovered by him against the corporation, September 13, 1879. February 25, 1873, he had indorsed a note for the company, payable to A. E. Spaulding or order. Dunsmore was at that time, and had since been, up to the date of suit, both a stockholder and a director of the corporation. (67 B. & S. Co. v. Dunsmore, 60 N. H. 85.) A subsequent holder of the note recovered judgment against Dunsmore (Carey v. Dunsmore, 58 N. H. 357), who paid it, and obtained judgment against the corporation. Charles Willard’s claim is a judgment recovered by him against the company, dated February 24, 1879, and founded on a debt contracted by the corporation to him, September 11, 1872, and of a small balance on account. He was a stockholder from the organization of the company up to the date of suit, and since January, 1873, had been a director. During 1872 and 1873, the years in which these debts were contracted, the indebtedness o£ the corporation exceeded one half the value of its property to an amount greater than the claims of Dunsmore and Willard. Demands were duly made, and the executions are unsatisfied.</p>

Petition, for a writ of certiorari, to cause the defendant Clark, the judge of probate for the county of Sullivan, to certify to this court the record of the settlement of the account of the defendant Kempton, executor of the will of Fanny Hall, and to cause Kemp-ton to appear and settle his account in this court.

Assumpsit, upon the defendant’s promissory note, payable to PI. or order; plea, the general issue with notice of a set-off of a debt due from H. to tile defendant. For a valuable consideration PI. sold and delivered the note, after its maturity, to the plaintiff, who, so far as appeared, had no knowledge of PI.’s indebtedness to the defendant.

Case, on Gen. St., c. 69, s. 1, for an injury happening to a traveller, March 3, 1876, by reason of a defect in a highway. The action was entered at the November term, 1876. After one jury trial at the May term, 1877, and another at the November term, 1878, both juries failing to agree, the plaintiff moved that the case be committed to one or more referees, and the defendants objected. The amount in controversy exceeds $100.

Assumpsit, against a town, on a promissory note dated January 22, 1879, and given to the plaintiff’s intestate by the town in place of another note for $200, dated September 8,1862, which was payable to Daniel Lee, and was given him by the town as a bounty for his enlistment in the military service of the United States for three years. Facts agreed. August 25, 1862, under a suitable article in the warrant, the town had voted to pay a bounty of $200.

Debt, on an administrator’s bond given by the defendant Southard, as administrator of his wife, to whom he was married in 1845. She died intestate, November 1, 1856, leaving personal property which he had not reduced to his possession during her life, and of which he has not returned an inventory. The suit is brought for the benefit of their daughter. Facts found by a referee.

<p>Tboveb, for a steam boiler, its fixtures, and two looms. Facts found by a referee. February 9, 1870, the defendant, owning a woollen mill and the machinery in it, situated in Bristol, conveyed the mill, by a warranty deed describing the land on which the mill stood, to Augustus and William H. Williams, for the sum of $7,000, and the latter, on the same day, reconveyed it to the defendant by warranty mortgage deed as security for the purchase- . money. In April or May of the same year the purchasers took possession.</p> <p>The mill, when sold, was warmed by stoves, and the heat for scouring and coloring purposes was obtained from a copper boiler in the dye-house outside the mill. After taking possession, the purchasers sold the stoves and the copper boiler, and in their stead procured the large steam boiler in controversy. It was connected with pipes, and was used both for warming the mill and for scouring and coloring; and this arrangement was the only one for those purposes while the mill remained in their possession. The boiler was placed in the mill by cutting a hole in the floor; of about the size of the boiler, and, for tbe front end, building a brick support from the ground, above the level of the floor, and bricking about the fire-box, the rear end of the boiler being placed in an iron rest upon a split stone base fixed in the ground. The remainder of the space beneath the boiler was filled with earth up to the level of the floor. The boiler became a necessary part of the machinery of the mill during the occupation of the purchasers.</p> <p>• Some small frocking looms, being out of repair, and not such as the Williams brothers desired to use, were removed from the mill, with the consent of the defendant, to a storehouse on the premises, and in the following June the two looms in controversy were bought and placed in the mill in lieu of the discarded ones. The former were so large that they were taken apart in order to be placed in the mill, and (the floor of the mill being of boards only) timbers of about twelve by four inches were laid on the floor and the looms placed on .the timbers. The looms weighed about 1,500 pounds' each, and were attached to the floor by their own weight alone, no fastening connecting the timbers with the floor or the looms with the timbers. The looms were connected by belting with the main shaft in the mill, and became a part of the machinery of the mill, $nd were necessary for the purposes of the mill as then designed, and as used during the occupation of the Williams brothers.</p> <p>January 31, 1871, the latter, being indebted to the plaintiff, gave him a chattel mortgage, duly recorded, of the property in controversy as security for the indebtedness.</p> <p>March Í5, 1871, the Williams brothers, having failed to pay any of the purchase-money (except six months’ interest) due to the defendant, and having become further indebted to him, conveyed the mill property to the defendant by a quitclaim deed describing the property- substantially as in the deed of purchase. It was understood between the parties that the defendant should not collect anything upon his mortgage note other than the property reconveyed, and that the mortgage and note should exist so far as to protect the quitclaim deed against intervening claims, but was ultimately to be delivered to the makers; and in pursuance of this understanding the note was delivered to them some three or four years before the time of the hearing. The defendant, upon receipt of the quitclaim deed, took possession of the mill, including the property in controversy, and he or parties holding under him have ever since been in possession.</p>

Assumpsit, upon an account. The specification contains 273 items, and the set-off about as many more. The case was heard by an auditor. Exceptions to the auditor’s rulings upon questions of law were decided in favor of the plaintiff (60 N. H. 400), who then moved for judgment on the report. The defendants claimed a jury trial, and seasonably filed an affidavit stating in what particulars it was expected to change tbe findings of tbe auditor.

Assumpsit, on a policy of insurance issued August 15,1876, for the term of three years, insuring the plaintiff’s house, shed, and) barn, situated in,Hart’s Location, in the sum of $800, and $50 on the hay and produce in the barn. The premises were destroyed by fire December 18 or 19, 1876.

Case, for personal injuries, against the defendant Baker, as trustee of the South Family of Shakers in Enfield. The plaintiff, at the time of his injury, was in the employment of the defendants as head farmer, but was injured while engaged in removing obstructions from the wheel in the defendants’ pail-factory.

<p>‘The appointment of a guardian over an apprentice, does not, ipso facto, terminate the contract of apprenticeship, nor deprive the master of the services of the apprentice.</p> <p>'The master has no such legal interest in the appointment of a guardian over an apprentice as entitles him to appeal from the decree of the probate court appointing a guardian.</p> <p>When there is no stipulation for any definite period of service in an indenture of apprenticeship, either party may terminate the contract at pleasure.</p>

Case, for burning the plaintiff’s buildings and goods, situate in Barnet, Vt., on the line of the defendants’ road, by sparks communicated from the defendants’ locomotives, May 11, 18721 April 17, 1851, the defendants leased to one Isaac Watts the land on which there was a two-story building, occupied as a store, immediately north of their passenger station in Barnet, and in. line with the same on the westerly side of their track, and about four feet from the same.

Bill in Equity, to foreclose two mortgages of land in Enfield and Canaan in this county. Facts found by a referee. The plaintiffs are Eliza H. Clark, and her daughter, Clara E. Mathews. The defendants are George W. Clark (husband of the plaintiff Eliza H., and father of 'Mrs. Mathews), Daniel Tilden, and James G. Ticknor, assignee in bankruptcy of Geo. W. Clark, the last two having been joined as defendants by amendment since the original bill was filed.

Shit, entered at September term, 1881, and referred by consent. Report filed at this term, and judgment ordered thereon for plaintiff for $269. The referee’s fees amounted to $100, and were reasonable charges for the time spent and expenses incurred. Continuances were granted by him on two occasions at the request' of one or the other of the parties, and without terms.

Debt on bond, by Joseph M. Jackman and David M. Aldrich against Samuel G. Eastman, Henry J. Crippen, and John H. Barron. Facts agreed. The bond in suit is in the penal sum of $500, and is dated April 22, 1881. It is the injunction bond so called, filed according to the order of court and underRule 36 in chancery, in the case of Eastman & a. v. Thayer & a., 60 N. H. 408. The bill in that ease was dismissed, and the injunction was dissolved at the September term, 1881.

<p>Case, for personal injuries. The declaration alleged an injury to the plaintiff while assisting, as an employé of the defendants, in loading upon a car old rails, one of which fell upon the plaintiff through the negligence of the defendants in suffering a car with a large amount of snow upon it to be used for that purpose. Another count alleged an injury through the incompetency of the defendants’ agents and servants to manage the business of loading the rails, and that the plaintiff was in the exercise of reasonable care. The plaintiff introduced evidence tending to show that he had been employed by the defendants from 1855 to 1874. In 1874 he worked under one Morrill as a section-man, having charge of the track repairs on the section which included the railroad yard at Gorham. December 9, 1874, he was notified by Morrill to go the next morning down the line towards Portland, and assist in loading old rails, to be taken to the rolling-mill: he had sometimes assisted in loading rails before. On the morning of December 10, 1874, before light, in company with Morrill and other section-men, he started upon a train made up for the purpose of collecting old iron, consisting of a brake van and about a dozen platform cars, and went down the line about a mile on to another and different section from the one on which he was employed. The rails were piled by the side of the road a convenient distance from the track for loading. When the train arrived 'at the first pile, it was stopped by Cole, who was foreman of an extra gang on the road, and who had charge of the business of collecting and loading the rails and of the train for that purpose. The men, of whom the plaintiff was one, commenced to load the rails, at Cole’s direction, on to one of the platform cars. On the car was from one and a half to two and a half feet of snow. It was hard, and heaped up in the middle and falling away towards the sides of the car. How the snow came upon the car did not distinctly appear. There was evidence tending to show that the plaintiff, had no special knowledge of the condition of the car on which they began to load the rails, or of the snow upon it, until they began loading, except what was derived from seeing the train, and then he did not know how solid and hard it was. It was no part of the plaintiff’s duty to make up the train, and he had nothing to do with making it up. There were ten men engaged in loading the rails. The evidence tended to show that the top of the car was about four feet above the track, and the ground on which the men stood in loading the rails was somewhat lower. Tire men loaded the rails by taking hold of them and raising them up and heaving them over upon the car. In attempting to load the second or third rail, it did not distinctly appear which, it struck upon the car and slipped back and fell upon the plaintiff, breaking both his legs and seriously injuring him. He was then pat upon the car and carried home. There was no evidence of any incompetency of any of the defendants’ servants, or that the cars on this train were not in proper condition, except the evidence of the snow upon the car on which the plaintiff was assisting to load the rails at the time he was injured. There was evidence that it was usual in loading rails to have men on the cars to assist in placing the rails as they were put on, but there was no one on this car when the accident happened. Cole was standing on the next car giving directions to the men as to the loading. The snow on this car was plain to be seen by the plaintiff when he began to assist in loading, and he testified that he blamed the snow. The car and train and men were all right. He did not know whether it was dangerous attempting to load the rails upon the car with the snow upon it. He did not think of any danger. The evidence also tended to show, that after the accident to the plaintiff the snow was shovelled off before any more rails were put upon it, and that it was nearly time for the regular train, and they were in a hurry to get the pile of rails loaded before the regular train came along, which was expected soon. As to Cole’s duties and authority, the evidence tended to show that he jvas foreman of an extra gang, whose duty it was to work on the line of the road under directions from Murphy, who was road-master of that division of the road, assisting the section men in repairing the worst places and in putting in side-tracks, collecting old iron, and similar work. The train in question was not made up under Cole’s direction, and he did not select the cars composing it. There was no claim or evidence of Cole’s incompetency except in his not causing the snow to be removed from the car before the loading was commenced.</p> <p>The defendants moved for a nonsuit on the ground that there was no evidence upon which the plaintiff was entitled to recover, and that question was reserved.</p>

<p>The deed of W. to stand seized of his premises to the use of himself and wife for life, then in fee to C., with a covenant with Y. that “ Y. is to-have the water from a certain spring where it now runs in the aqueduct, as long as he or his heirs shall want it,” conveys no interest in the water of the spring to C., and the clause relating to the water is a grant of it with the right of aqueduct to Y.</p> <p>Y. having laid the aqueduct from his premises to the spring before the deed was made, and having for more than twenty years maintained the aqueduct, and enjoyed the use of the water in that way under a claim of title, without interruption, and with no objection from any one, the giving of the deed and Y.’s acceptance of it was no limitation of his right, but a recognition of it by W., and he acquired a title to the water and an easement for the aqueduct, which passed by the subsequent deed of his premises to his grantees.</p> <p>Case, for disturbing the water of a spring. Tlie plaintiff has an aqueduct by which he takes the water from a spring on the defendants’ land to his house upon his own land. In 1842 Jeremiah Young owned and occupied the plaintiff’s premises, and Isaiah Willey the defendants’. Before that time Young had constructed the aqueduct, and was then enjoying the use of the water of the spring. That year Willey made a deed of his land to stand seized of the premises for the use of himself and wife for their lives, and then in fee to William Covell; and in the same deed he-covenanted with Young in these words,- — -“And 1, the said Isaiah Willey, also agree with the said Jeremiah Young, that the said Young is to have the water from a certain spring where it now runs in the aqueduct, .as long as he or his heirs shall want it.” Willey died before the 10th of March, 1844, and on that day Covell, by quitclaim deed, released to the defendant Joseph Y. Covell all his interest in the land conveyed by Willey; and in August of the same-year, Charlotte Willey, widow of the deceased, by deed of warranty conveyed to Joseph Y. the same land which is now held by him under those deeds. In Charlotte’s deed was this reservation : “ I hereby agree to reserve a certain spring of water for Jeremiah Young, of Colebrook, agreeable to a conveyance made by Isaiah Willey to said Young.” Young continued to occupy his premises, and maintained the aqueduct and enjoyed the use of the water of the spring without objection until 1867, when he conveyed his land, including the spring, to Leavitt, who occupied the land and used the water in the same way for about a- year, when he conveyed the land and spring to the plaintiff, who has been possessed of the land and has enjoyed the use of the water without objection until 1877, when the defendants, denying the plaintiff’s ownership of the spring, disturbed the water, and rendered it unfit for use, for which the referee has assessed damages. Both defendants jointly occupy the Oovell land. The ownership of the spring is the only question in dispute.</p>

Appeal, from the refusal of the tax assessors of Columbia to abate a tax assessed to the plaintiffs in April, 1879. Facts agreed. The selectmen were seasonably requested to abate the tax, but neglected so to do. The plaintiffs are a corporation, duly established by the laws of Connecticut, owning and running large mills for the manufacture of lumber at Hartford in that state.

Trespass, for breaking and entering “ tbe plaintiff’s close, situated in said Pittsburg,” and cutting down and carrying away tbe plaintiff’s grass.

Assumpsit. The defendant filed the following set-off: “On the first day of April, 1878, at Gorham in said county, one Walter H. Philbrook, of said Gorham, was justly indebted to the defendant in the sum of $385.47 upon a winding up of the partnership affairs theretofore existing between them, and, in consideration that said Philbrook did then and there assign, transfer, and make over, by way of mortgage and otherwise, to the plaintiff, a large amount of real estate, and also…

Bill in Equity, to foreclose a mortgage. Facts found by a referee. The defendant Wayne Cobleigh is justly indebted to the plaintiffs, according to his promissory note, for $397, dated July 6, 1.877, payable to the plaintiffs or order, in one year from date, with interest annually, on which date he gave the plaintiffs a mortgage of the land described in the bill, being his homestead place in Groveton, Northumberland.

Assumpsit, on a promissory note for $1,300, dated September 15, 1871, signed and payable by the defendant to the plaintiffs or order, on demand, with interest semi-annually at eight per cent, per year, payable on the first days of January and July in each year. Plea, the general issue.

<p>Petition, for the abatement of taxes. The opinion states the facts.</p>

Assumpsit, for logs sold and delivered. The plaintiff moved for leave to file a count in trover for the same logs, alleging the conversion on a day subsequent to the date of the writ.

Trover, for logs cut in 1871, on lot numbered 23 in the third division of Lemington, Vermont. - Lemington was chartered in 1762 by Gov. Benning Wentworth, who reserved to himself 500 acres, designated on the plan, accompanying the charter and accounted as two shares, one share to the Church of England for a glebe lot, three shares for other charitable and public uses, and granted the remaining sixty-four shares to as many individuals.

<p>Assumpsit, on a policy of insurance on the plaintiff’s woollen mill and contents, which were burned May 23,1879. Facts agreed. The policy contains the following stipulation: “If the assured shall keep or use gunpowder, fireworks, nitro-glycerine, phosphorus, saltpetre, nitrate of soda, petroleum, naphtha, gasoline, ben-' zine, benzole, or benzine varnish, or keep or use camphene, spirit gas, or any burning fluid or chemical oils, without written permission in this policy, then and in every such case this policy is void, and all insurance thereunder shall immediately cease and determine.”</p> <p>Benzine and naphtha are of three grades, differing according to-the degree of lightness, and the words are often used interchangeably. .Benzine readily evaporates when exposed to the air, passing off in a gas. This gas is heavier than air, and will fall rather than rise, if there are no currents to disturb it. It can be poured from one vessel to another. It is not in itself explosive, and unmixed with air does not readily ignite. If mixed with air, it is-explosive and very inflammable. It passes through crevices and holes more readily than water. The quantity of gas produced is-five hundred or six hundred times greater than the fluid which produced it. A quart of benzine poured on the floor would evaporate in a few minutes. A small dishful placed at the top of stairs could soon be ignited at the bottom, though it could not be above the dish.</p> <p>The fire broke out about noon. In the morning there was a fire under the boiler to heat the dye vats to 140° or 150°. The fire was made of pine wood, and was not- replenished after about nine o’clock. About eleven o’clock, the plaintiff, for the purpose of killing moths in some wool, carried into the mill a barrel of naphtha, drew some of the liquid several times into a watering-pot holding about two quarts, and sprinkled it upon the wool at the opposite end of the room from the cask. The fire broke out about thirty feet from the wool, and spread rapidly to it. Nothing more is known of the origin of the fire. The plaintiff bought the naphtha (supposing it to be benzine, which he had ordered) for use in destroying the moths, and he intended to remove it from the building after sprinkling the wool, and use it in cleaning the windows, which were to be taken out of the mill for'that purpose.</p>

Petition, for leave to appeal from a decree of the probate court. Pacts found by a referee. George H. Dodge died in 1862, leaving a widow, seven children (the petitioners), and a will, with Stickney as executor. The widow waived the provisions of the will, but is not a party to this petition.

Trespass, quare clausum, tried by the court. The defendants own a tract of land in Newton, about a quarter of a mile from the highway. The only access to it is by a cart-path over land adjoining the highway, now owned by the plaintiff. Originally the plaintiff’s father owned both tracts, but he sold the tract bounded by the highway, and thereafter continued to use the cart-path across it in going to and from the rear lot, until his decease in 1830.

Assumpsit, to recover some two hundred items of account, and also four promissory notes, dated, respectively, October 1, 1869, March 11, 1870, March 11, 1872, and January 3, 1873. Writ dated June 23, 1879. The defendant pleaded the general issue, with set-off, as to the account,, and payment and statute of limitations as to .the notes. The cause was sent to an auditor, who reported a balance of $234.11 due‘the plaintiff on the account, and $1,666.97 on the notes.

<p>Petition, for the examination of the Vaughan Street railroad crossing in Portsmouth, under Gen. Laws, e. 161, s. 5.</p>

<p>The form of action may he changed by amendment when justice requires it to he done; and the question of justice, so far as it is a question of fact, is determined at the trial term.</p>

Case, for injuries received by a traveller on a highway. Yer-dict for the plaintiff. In the notice given to the town (G. L., c. 75, s. 7), the plaintiff stated that the injuries were received February 20, 1881. The defendants excepted to the ruling that the'time was sufficiently stated.

<p>The laying out of a highway by selectmen, upon petition and a hearing before them, is a judgment which cannot be attacked collaterally on account of a failure to order notice by posting a copy of the petition and order of notice, and serving a like copy on the town-clork, as required by General Laws, o. 43, s. 3.</p> <p>Notice to a town of an injury received on a highway, stating that it happened at a certain railroad crossing, which is found to be eighty feet wide, may state the “ exact place ” of the accident within the meaning of the statute (G. L., e. 75, s. 7); but whether it does or does not is a question of fact to be determined at the trial term.</p>

Probate Appeal. Facts found by a referee. ' Mary Dominique having been killéd by a locomotive on a railroad, lier husband employed an attorney to prosecute the company, and agreed to pay him $1,000 for his services and expenses in the conduct of the suit. Dominique was a man of no property, and earning small wages. Butler, the appellant, was appointed guardian of the minor children of the deceased.

<p>Habeas Corpus.</p>

Bill in Equity, founded on Gen. Laws, e. 193, s. 22, to recover compensation for labor and services alleged to have been performed by the plaintiff for the deceased. The administrator did not elect to testify.

<p>An agreement by the plaintiff, that goods which he claims, and for tho taking of which by tho defendant, a deputy sheriff, upon attachment against a third person, he has brought his action, may he sold, and the proceeds retained in place of the goods, is not a release of the cause of action, nor conclusivo against the plaintiff’s right to maintain the action.</p>

Cask, for injuries on a highway. Verdict for the plaintiff. Motion by the defendants to set the verdict aside for misconduct of the jury. The defendants produced the testimony of the officer who had the jury in charge, which tended to show that the verdict was the result found by dividing the sum of the several estimates of the jurors by twelve, and that this method was agreed upon before the estimates were made.

Trespass, for false imprisonment. Facts agreed. The plaintiff was committed to the New Hampshire Asylum for the Insane, of which the- defendant was superintendent, July 12, 1879.

<p>When the legal principle governing a case is fully stated in general instructions given to the jury, and each party has an opportunity in argument to apply it to his view of the facts, it is not error of law for the court to refuse to give instructions on its application to particular evidence.</p> <p>Case, for injury upon a highway. Verdict for the plaintiff! The defect complained of was the want of a railing. The jury were instructed that if they found the highway, at the time and place of the accident, was reasonably safe and suitable for the travel thereon, or if not, that the defects and insufficiencies therein did not cause the accident, their verdict would be for the defendants ; but if they found it was not reasonably safe and suitable for the travel thereon, and that the defects and insufficiencies caused, the accident, they would then take up the question whether the plaintiff was in fault. The defendants excepted to the refusal of the court to give the following instructions: “If the jury find that, the horse did not fall in consequence of any fault of the town, but that the highway was defective by reason of the lack of a suitable railing and the plaintiff was injured thereby, and is not precluded from recovering a verdict by contributory negligence (according to the definition of contributory negligence the court will give), then the jury must determine whether the plaintiff would have been injured if there had been a suitable railing. And if they find that her injuries would have been as great, or greater, had there been a suitable failing, then the plaintiff cannot recover.”</p>

<p>Real Action, to foreclose two mortgages. Facts found by a referee.</p>

<p>Bill, in Equity, to restrain tbe defendants from obstructing the plaintiff in drawing water from an ancient well in tbe highway near the west line of the defendant Angela’s land, claimed by the plaintiff as appurtenant to his homestead; also to restrain the defendants from obstructing a driveway from the plaintiff’s house to the highway at a point opposite the defendants’ land. The defendant Angela answered, claiming that the well is upon her premises and is her exclusive property, and denying that it is appurtenant to the plaintiff’s premises. She also denied that the plaintiff had a driveway, or right of way of any kind, between the travelled part of the highway and her land. The other defendants answered, disclaiming any interest in' the subject-matter the plaintiff’s bill.</p> <p>The second action is case, to recover damages for obstructing the plaintiff in the use of the well and driveway. The two suits were tried together.</p> <p>Facts found by the court. The defendant Angela is the wife of Sumner A. Putnam, and the daughter of John H. Plaisted, the other defendant. The plaintiff’s homestead adjoins her farm on the north. Their houses are about twelve rods apart, and the division line is fifty to seventy-five feet south of the plaintiff’s house. The westerly boundary of their farms is an ancient highway, three rods wide, laid out in 1781. If the easterly line of the highway is where the defendants claim, the well is wholly on Mrs. Putnam’s land, and the driveway crosses the north-west corner of her land. The well and driveway previous to 1880 were not inclosed within the limits of Mrs. Putnam’s field, but were west of her westerly fence as then located. In November, 1880, the defendants moved her west fence into the highway about twelve feet, thereby obstructing the plaintiff’s driveway, and excluding him from the well. The well is situated about midway between the two houses. Mrs. Putnam’s house in 1880 was occupied by the defendant Plaisted. In April or May, 1880, the defendants removed the chain and windlass, took off the curb, covered over the well, and threatened to fill it up. The plaintiff claimed that he and those under whom he claimed had gained a prescriptive right to the use of the well, and that the driveway was wholly within the limits of the highway, but that if, as claimed by the defendants, the driveway crossed the north-west corner of Mrs. Putnam’s land, he and those under whom he claimed had gained a prescriptive right to its use. To prove prescription, the plaintiff called witnesses residing in the neighborhood of the premises, who testified that the plaintiff and his grantors had used the driveway and well for more than fifty years, for the purposes above stated, under a claim of right. There was no direct evidence that the defendant Angela, or those under whom she claimed, knew that the plaintiff and his grantors claimed the right to the use of the driveway and well, except so far as knowledge might be inferred -from the continuous, uninterrupted, and undisputed exercise of the right claimed for more than fifty years prior to 1880. The user was with the knowledge of the defendant Angela and of her grantors. The defendants claimed that the user by the plaintiff and his grantors was permissive merely, and that its character was not such as of itself to give notice -of the right claimed.</p> <p>The court found that Mrs. Putnam’s Afresterly line was where the fence stood until removed in 1880, and that the drivewny and well are within the limits of the highway, the well being some two or three feet from the defendants’ westerly line. The court also found that the user of the well and driveway was under a claim of right with the knowledge of the defendant and of her grantors, and that the plaintiff and his grantors had acquired a prescriptive right to draw water from the well for family use upon the plaintiff’s premises. Also, that if, as claimed by the defendants, the driveway crossed her land, yet the plaintiff and his grantors had so used it for the period above mentioned, they had gained a prescriptive right to the use of the same. The court decreed that the defendants be restrained from obstructing the plaintiff from drawing water from said well for use in his family upon his premises ; also that the defendants be restrained from obstructing the plaintiff from using said driveway in passing to and from his said premises to and from the highway. In the second action, the court found the defendants guilty, and assessed damages.</p> <p>The defendants excepted, — 1. To the finding that the plaintiff had a prescriptive right to the well and passway, on the evidence in the case. “2. There being a public highway, as found by the coiirt, the plaintiff cannot have a prescriptive right to a private way over the same. 3. The defendants S. A. Putnam and'Plaisted not having any interest in the premises in dispute, there can be no decree against them.</p> <p>K. H. Smith, eighty-two years of age, testified that he had lived in the neighborhood when the plaintiff’s farm was owned by one Chandler and the defendant’s farm by one Morrison: that the Chandler people obtained their water from this well, and that he also had got water from it; [that he asked permission of Chandler, and did not ask permission of any one on the Morrison property.] The defendants excepted to the evidence included within brackets, because it did not appear that the witness asked permission of Chandler in the presence of Morrison. S. B. Chandler’s deposition was read. He deposed that he was born upon the Chandler place, and lived there seventeen years, until 1845; that the family living on the Chandler place always got their water from this well, called the Chandler well, and had the full, free, and uninterrupted use and enjoyment of the well as long as the witness lived there; [that so far as he knew, the persons living on the Chandler place always claimed the right to the full, free, and uninterrupted use and enjoyment of said well. Ans. to Int. 13.] The defendants excepted to the evidence included within brackets. Int. 14 and answer are as follows: “Was there or nota driveway from the door-yard and buildings of the Smith place tp the highway, passing the corner of the Putnam place and this well, going towards New Hampton institution, and if so, describe it and its use, and the length of time you know it was used, and whether or not that use was free, open, and uninterrupted? Ans. There was such a drivewmy. Always an open driveway, a public road. Since I have known anything, always a road open to teams to drive up to the doorway of said Smith place. Always open, free, and uninterrupted to the public.” The defendants excepted to the interrogatory because it called for the opinion of,the witness. S. E. Mars-ton testified that he bought the Chandler place of John Chandler in 1874, and lived upon the place three years; [that when he bought it Chandler told him the well belonged to the place, also the driveway; and that his grandfather dug the well and owned it.] D. G. York testified that he bought the Chandler place of Marston in 1876, and sold it to the plaintiff; [that when he bought it Marston told him he owned the well.] James H. Plaisted testified that he was acquainted with Nathaniel Chandler ; [that one day, as Chandler was going for a pail of water, he asked him (Chandler) why he did not have the well further off, and Chandler replied that his father dug the well for the benefit of his blacksmith shop and dwelling-house; but that if he had dug it, he should have dug it nearer the house.] The defendants excepted to the evidence included within braclrets.</p>

Indictment, charging that the defendant, “ on the twenty-second day of August, 1881, at Effingham, in the county of Carroll aforesaid, with force and arms, did wilfully, maliciously, and unnecessarily girdle six elm trees' then and there standing and growing for ornament and shade on the side of the street, near to the dwelling-house of Joseph L. Drake, situate in said Effingham, and thereafterwards, to wit, on the seventh day of December, 1881, did wilfully and maliciously…

Complaint, of John H. Pearson, E. S. Nutter, and Charles C. Pearson against the Concord Railroad Corporation and its directors, alleging a violation of the injunction granted in Burke v. Concord Railroad, 61 N. II. 160. June 22, 1882, an order was made in relation to pleading and evidence.

Assumpsit. Facts found by a referee. The plaintiff having given a note secured by mortgage, and a judgment of foreclosure having been rendered against him for the amount of the note, he paid it, and brings this suit to recover back a part on a claim that usurious interest was a part of the consideration of the note.

Quo Warranto, against Emory N. Shepard, Oliver Pillsbury, and John O. Thorne, to test the validity of their election as aider-men by the fourth ward of Concord. Facts agreed. The charter of Concord, adopted by tlie inhabitants March 10, 1853, divided the city into seven wards, and provided that each ward should choose one alderman, and that a majority of the board should constitute a quorum for the transaction of business. Laws 1849, c. 835, ss. 2, 3, 7, 30.

Complaint eor Bastardy, made by a town before birth of child, alleging that the pregnant woman refuses to make complaint. The defendant moved to dismiss.

Bill in Equity, by an assignee in bankruptcy for the reconveyance of certain real estate alleged to have been conveyed by the bankrupt to one of the defendants, and by her to the other in fraud of the bankrupt’s creditors, and for the surrender and annulment of the deeds under which the defendants claim title.

The First Case is trespass for breaking and entering the Concord tent, being the plaintiff’s personal estate on the eamprneeting ground in Alton, and for breaking doors to rooms, and removing partitions to passage-ways in the tent.

<p>Bill in Equity, for specific performance of a parol agreement of land. At the hearing the plaintiff offered to prove that he was the only child of Sliadrach Seavey, the defendants’ testate, who died in 1880. In January, 1860, the testator, owning a tract of land, and wishing to assist the plaintiff, went upon the land with him and gave him a portion of it, which the plaintiff then accepted and took possession of. The plaintiff had a note against his father upon which there was due about $200, which he then or subsequently gave up to him. Subsequently his father gave him an additional strip of land adjoining the other tract. Ever since the gifts, the plaintiff has occupied and still occupies the land, and has paid all taxes upon it. He has expended $3,000 in the erection of a dwelling-house, barn, and stable, and in other improvements upon the premises. Some of the lumber for the house was given him by his father, who helped him do some of the labor upon the house.</p> <p>The defendants moved to dismiss the bill because no cause for equitable relief was stated, and because the parol contract, which is " sought to be enforced, was without consideration, and is executory. The bill alleges a gift of the land to the plaintiff and a promise to give him a deed of it. The defendants also demurred, and answered denying the material allegations of the bill.</p> <p>If the bill can be sustained on proof of these facts, or if not on these facts, but would be with the additional proof of a consideration for the promise, there is to be a further hearing, the plaintiff having leave to amend his bill. If on proof of these facts, either with or without proof of consideration, the bill cannot be sustained, it is to be dismissed.</p>

Assumpsit, to recover for goods sold. Facts found by a referee. The plaintiff made an auction in April, 1880, at which the defendant bid off the property -named in the specification at the prices therein designated. He has never paid for the same, nor taken the property away. The defendant claimed that the plaintiff was owing him about $50 for some wood. This claim the plaintiff denies.

Foreign Attachment. The defendant is Stephen Gerrish,. and the trustees are the Franklin Savings Bank and Leonard Gerrish. The Citizens’ National Bank of Tilton and the Iona Savings Bank were admitted to appear as subsequent attaching creditors, and as claimants of the funds in the hands of the trustees. The trustees’ depositions were filed.

Writ oe Entry, dated October 9, 1880, to foreclose a mortgage to the plaintiff from one Clark, made and executed October 25, 1860. November 8, 1861, Clark conveyed the same land to the defendant by quitclaim deed. The land was sold for taxes, and the defendant has a quitclaim deed thereof, dated February 6,1860. He claims title against the plaintiff by twenty years’ adverse possession. The proceedings under which the land was sold for taxes were invalid.

<p>As against existing creditors, it is immaterial that a voluntary conveyance is made bona fide, unless the donor or grantor retains ample means to satisfy his debts.</p> <p>A voluntary conveyance is prima f&eie evidence of a fraudulent intent against creditors, and if, in the ordinary course of events, the donor’s property proves to he inadequate to the disharge of his debts, the presumption of fraud remains, although the property reserved may have been originally adequate to that purpose.</p> <p>A married woman is not entitled to a homestead in her own estate.</p> <p>If a husband, in good faith but without valuable consideration, contributes to the purchase of real estate which is the subject of a homestead right, and the title thereto is taken in the name of the wife without any fraudulent design on her part, an existing creditor of the husband can only levy upon the debtor’s interest in the premises subject to the wife’s right of homestead therein.</p>

Assumpsit, to recover money paid for goods. Facts found by a referee. October 28, 1879, the plaintiff bought goods of the defendant and paid for them. The defendant did not have in stock the goods wanted, and the plaintiff selected the kind and quality desired from samples. The defendant agreed to have the goods at his store within two weeks, at which time the plaintiff was to call for them; if they were ready before that time the defendant agreed to notify him.

Case, for injuries from the defendants’ negligence. The defendants are a corporation carrying on the business of manufacturing steel and iron. The business is conducted in three departments, of one of which, known as the steel department, where the steel is cast into heavy slabs or ingots, Hibbard had the oversight and management, as foreman, under Swain, superintendent of the whole.

Assumpsit. The writ as originally drawn appeared to command the officer “to attach the goods or estate of John W. Curtis and Spiller, both of Manchester in said county, traders and partners under the firm of Curtis & Spiller, to the value of three hundred dollars, and summon them,” &c. The writ was altered by erasures with a pen and by interlineations, so that it commanded the officer “ to attach the goods or estate of John W. Curtis, of Manchester, in said county, trader,…

Assumpsit, on a note. Plea, the general issue, with a brief statement alleging that the defendant, prior to the commencement of this suit, had made an assignment of all his property, for the benefit of all his creditors, agreeably to Gen. Laws, c. 140 ; that he had in all respects complied with the requirements of the statute; that the plaintiffs’ debt was due from the defendant at the time of the assignment; that the plaintiffs assented to such assignment, and had proved…

ReplbVin, for a sewing-machine. The defendant is a resident of Concord, and the machine in question was taken from her on this writ in that county. The defendant moved to dismiss for want of jurisdiction, and the motion was granted. The court then, against the plaintiffs’ objection, assessed the defendant’s damages at thirty-five dollars.

<p>A transfer of stock in a dividend paying corporation not recorded in the record hook of transfers is invalid against attaching creditors without notice.</p> <p>A corporation attaching the stock is not chargeable with the knowledge of' such transfer possessed by one of its directors who takes no part in causing and is not informed of the attachment.</p>

Assumpsit, on the following instrument: “Nashua, N. H., Oct. 13, 1881. Held: and save the expense of a trial in Massachusetts. Walker agreed with Fox that if he would get an order from' Hambleton for $91 upon the Arlington Mills, he would pay him out of the proceeds of such order $56. Fox induced. Hambleton to give the order for $91, and Walfrer signed the instrument in suit.

Complaint, under the bastardy act, alleging that the child was begotten in Tyngsborough, Mass. The plaintiff moves for leave to amend, by alleging that it was begotten in Hudson, in this county. The defendant moves that the complaint be dismissed.

Case, for injuries received by tbe plaintiff’s falling on a sidewalk in a street alleged to be defective. Verdict for the plaintiff. Subject to the defendant’s exception, the plaintiff was allowed to introduce in evidence the following ordinances of the defendant: “ Chapter 7, se’ction 5.

<p>A debt due from a collector to tbe town for taxes collected and not paid over as required by law is not barred by a discharge in bankruptcy.</p>

Bill in Equity, by Dolly S. Winch against Sarah E. Bean and her husband, Charles W. Bean. Ifacts found by a referee. April 1, 1881, the plaintiff, being 76 years old, conveyed a four-acre lot of land to the defendant Sarah, and delivered all her personal property except her clothing to the defendants, to be held by them subject to the condition hereafter mentioned.

Case, for obstructing a sewer running from the plaintiff’s house on her lot to the defendant's barn cellar on his adjoining lot. Verdict for the plaintiff. The plaintiff is the widow, and the defendant is a son, of E. K. Smith, who formerly owned and occupied the land which is now divided into the two lots. The plaintiff’s house and the defendant’s bam are 100 feet apart, and the dividing line is 35 feet from the barn.

Bill in Equity, to compel the defendants to deliver to the plaintiffs the communion service, records, and certain funds belonging to the plaintiffs. Facts found by the court. Held: and the ordinances and sacraments of the church, according to Congregational usage, have been partially observed; but the defendants, and those who acted with them at the meeting of July 27, have taken no part therein, and have not contributed toward the expenses.

Case, for obstructing the flow of water from Clark’s pond, in Canaan, to the plaintiff’s mill on the Mascoma river at Factory Village in the same town. The opinion sufficiently states the material facts, which were found by a referee.

<p>An employer is not liable for an act of his servant done in violation of orders, beyond the scope of his employment, and without fault on the part of the employer.</p> <p>Case. Facts found by a referee. The defendant had a number of men employed with an overseer in clearing a piece of ground adjoining the plaintiff’s field, under orders to set no fire unless the plaintiff was present. In the defendant’s absence, and without his or the overseer’s knowledge, one of the men intentionally started a fire which spread to the plaintiff’s field. Setting the fire under the circumstances was a negligent act.</p>

Habeas Corpus, on the petition of John Adden, a resident and citizen of New Hampshire. A petition was presented to the court of insolvency in Massachusetts by the assignee of an insolvent, alleging that he suspected Adden had colluded with the insolvent to defraud the creditors of the insolvent and prevent a large part of his assets from coming to the assignee, and praying for a commission to take his deposition in this state.

Foreign Attachment. Issue between the plaintiffs and the claimants. The defendant gave the claimants an order on the trustees for his wages as they became due. The trustees, on the presentation of the order for acceptance, made a memorandum of it and placed it in their files, but did not accept it in writing. They afterwards paid the claimants $26.25 on the order.

Appeal, from a probate decree appointing the defendant guardian of the plaintiff’s minor son. Facts found by the court. The son, being more than fourteen years old, elected the defendant for bis guardian. The son had no property, and it did not appear that there was any occasion for the appointment of a guardian.

Trespass qu. cl. Facts found by a referee. The defendant claims the land under a tax-sale made on the resident assessment of April, 1880. The collector gave notice of the sale May 31, 1881, and sold the land July 14, 1881. The plaintiff claims under a sale made by the owner in May, 1880.

Assumpsit, for coal sold and delivered. Appeal from police court. Facts found by the court. The plaintiffs sent to the county commissioners the following written proposal, which was accepted: “We will furnish the county farm with 400 tons white ash broken coal, on cars, at Epping, N. IT, — 2240 lbs. to the ton, at §6.23 per ton.

Assumpsit, for goods sold and delivered. Jury trial. The plaintiffs were merchants', licensed to sell spirituous liquor in Boston, Mass., and the defendant was a merchant, selling - spirituous liquor in Seabrook, N. H., but not a town agent. The plaintiffs sold spirituous liquors to the defendant, and delivered them at the depot of the Eastern Railroad in Boston.

Real Action, by the heirs of Newton B. Batchelder, who died April 19, 1868, against his widow, for land occupied by and set off to her by the probate court as a homestead in her husbatid’s real estate. The estate was solvent, and the land was not required for the payment of the debts.

Case, for flowage. Facts found by a referee. The plaintiff’s land borders on a natural pond. Adjacent to the plaintiff’s land, and bordering on the same pond, is the defendant’s land, through which a brook, which is the outlet of the pond, runs. On the brook, a short distance below the outlet of the pond, the defendant has a dam with a mill, and the dam raises the water in the pond above its ■ natural level, so that it overflows to some extent the plaintiff’s land.

<p>The stipulation in a policy of insurance, that “if the assured shall keep or use . ... petroleum, naphtha, gasoline, benzine, benzole, or benzine varnish, or keep or use camphene, spirit gas, or any burning fluid, or chemical oils, without written permission in this policy, then and in every such case this policy is void, and all insurance thereunder shall immediately' cease and determine,” is a part of the contract of insurance, and the use by the assured of naphtha or benzine, on the insured premises, not recognized by the insurer as a reasonably necessary incident of the business, nor by custom, and not in small quantities for a special purpose not dangerous, avoids the policy, and operates as a forfeiture of the insurance.</p>

Assumpsit, for the double value of a fence and the fence-viewers’ fees. On application of the plaintiff, the fence-viewers, after a view of the division fence between the parties, and a hearing at which the defendant did not appear, required the defendant to build a certain portion of the fence within six days, and gave him notice in writing of their decision.

Petition, by the defendants, to remove the suit to the circuit court of the United States. The cause of action arose in Massachusetts. . The plaintiff is a citizen of New Hampshire. The defendants are a corporation, owning and operating under one direction a continuous line of railway from Boston, Massachusetts, through New Hampshire to Portland, Maine, and having its corporate powers by charter from each of the three states. There is only one body of proprietors.

Assumpsit, for money paid. At the commencement of the suit, the plaintiff was and now is a citizen of Massachusetts. The defendants are a corporation established by the laws of New York, own a mine, and have a place of business in Carroll county, and no place of business, servant, or office elsewhere in this state.

Foreign Attachment. Question of the trustee’s liability tried by the court. Writ dated April 6,1882, and served on the trustee the same day. The defendant, a resident of Exeter, being treasurer of the county of Rockingham, and the trustee and others being the sureties of his official bond, March 23, 1882, went to Portsmouth, and surrendered himself to the sheriff.

<p>Libel eor. Divorce, alleging that the parties were lawfully married August 14, 1882; that they commenced living together as man and wife August 19, and lived together until August 25, 1882; that on the day last named the defendant charged the plaintiff with the crime of bigamy, told him that he had no right to marry her because he had a wife living, and said she would never live with him again; that in company with her father and brother she left him, taking with her all his clothing and underclothing; that he has never seen her since, nor has she restored to him his property up to the time of the filing of the libel (February 26, 1883) ; and that at the time she left him she threatened to prosecute him for the crime of bigamy and send him to the state prison. The plaintiff denied the charge of bigamy, and offered evidence to sustain all his allegations; also that the defendant told him “ if he would give her $500 she would not prosecute him, but would never live with him again, and if he did not give her $500 she would send him to the state prison.” He also offered to prove that he had been legally divorced from a former wife. He asked for a divorce on the ground of extreme cruelty. The defendant was defaulted.</p>

Writ oe Entry, to recover one undivided third part of the Elkins pasture in Fremont. .Facts agreed. Jacob Hook died in 1834, testate. He devised the land in controversy to Sarah C. Cartel-, his daughter, for life, remainder to her children, of whom the plaintiff is one. Sarah died in 1882. Enoch B. Hook, his son, was named as executor, and accepted the trust. May 5,1838, pursuant to a license from the probate court, he sold the Elkins lot, with two other lots, to one Norris.

Probate Appeal, from a decree upon the settlement of the plaintiff’s account as administrator of his deceased wife’s estate, charging him with money in savings-banks and six shares of railroad stock standing in her name.

Bill in Equity, in which Charles W. Berry, Mary J. Pickering, and Emma F. Manson ask to have from Elizabeth A. Whidden and Frank L.… Held: occupied, carried on, or claimed any present interest in any part of the farm, except as servant of his mother, Elizabeth A. Whidden, or that he has received any income, rents, or profits from the farm from the death of J. W. Whidden up to April 19, 1881; but they say that Elizabeth has lived upon the farm since the decease of her…

Appeal, from the decree of the judge of probate. Facts found by the court. The reasons for appeal are because the appellee was not charged with $2,000 paid to the deceased by the town of Salem, and with an item of $472 allowed to the deceased against the estate of Ilutli Whitaker. The appellants are heirs-at-law of Hannah Marsh, who was the appellee’s wife, and died November 29, 1881.

Repleyin, for the stock of goods of a shoe factory in Salem. Plea, that the goods were not the property of the plaintiff, but were the property of one Kelly, and the defendant, a deputy sheriff, attached them on writs in favor of certain creditors of Kelly. Replication, that the goods were the property of the plaintiff, and issue joined thereon. The plaintiff is assignee of Kelly, an insolvent debtor. The assignment was dated, executed, delivered, and recorded March 9,1882.

CbAIM, for the support of Mary and Esther Corning, children of David Corning. The parties agree that David Corning resided in Derry from 1859 until his death in 1867. He was taxed there for the years 1863, 1864, 1865, and 1866, upon real estate belonging to him, which was in each of those years appraised by the selectmen at the value of $100.

Case, for diverting water from an ancient and natural brook. Facts found by the court.

<p>An officer’s return of a levy of an execution on a right to redeem mortgaged land may he amended to show the fact that the equity on which the levy was made included a creditor’s right to contest the validity of a second mortgage.</p>

<p>Assumpsit, for money had and received. Trial by the court. The defendant, a deputy sheriff, upon a writ against the plaintiff, .and the defendant in that suit (this plaintiff), not consenting to a sale of the attached property, the sheriff, upon a certificate of examiners duly appointed for- the purpose, sold the property and has the proceeds. ' That action was entered in court and referred, but was never tried. It was subsequently dismissed for want of pros•ecution, and the defendant in that action had judgment for costs. As plaintiff in this action, he claims to recover the gross proceeds ■of the sale. The defendant claims a deduction of the expenses of attachment and sale, which was disallowed with a verdict for the plaintiff. The defendant excepted.</p>

Trover, for stones and brick. The 'plaintiff purchased of the defendants a house and adjacent buildings, including, the foundation stones and underlying materials, with the stipulation to remove the property from the defendants’ land within a time specified. The plaintiff had notice, at the time, of the defendants’ purpose to proceed at once to erect a freight-house upon the site of the house purchased by the plaintiff.

Trespass qu. cl., for breaking and entering the plaintiff’s close, and cutting and carrying away hay. Facts agreed. The plaintiff was mortgagee of the land from which the hay was cut and carried away, and had an order from the mortgagor to cut the hay and apply the net proceeds upon the mortgage note. After receiving the order, the plaintiff notified the defendant not to cut the hay; and the defendant entered, cut, and carried away the hay after such notice.

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

Writ oe Entry. The plaintiff claims title under two attachments, one made August 23, 1880, and the other September 4, 1880, in suits brought by him against W. C. Marshall, a brother of the defendant, and the levy of executions issued in those suits. July 9, 1880, W. C. Marshall, who then owned the premises, conveyed them for value to the Lexington Mills,, a corporation then recently formed, of which he was the general manager and a director.

Bill in Equity, to determine the title to two shares of the stock of the Mt. Washington Railway, formerly the property of the Nashua, Acton & Boston Railroad. The plaintiff claims the stock by virtue of a contract with the superintendent of the Nashua, Acton & Boston Railroad, and the defendant Moulton claims to hold it as an attaching creditor of that road. The facts found by a referee appear in the opinion.

Petition, for the abatement of taxes assessed upon the plaintiff’s needle manufactory, machinery, and stock in trade for the year 1882. The plaintiff is a corporation organized June 4, 1880, with a paid capital of $6,000, and having its principal place of business in the town of Gilford. On the first day of April, 1882, it had more than $5,000 invested in its manufactory, machinery, and stock employed in its business in said town.

Petition, for a mandamus requiring the defendant, as a justice of the peace, to render judgment and issue execution on a report of referees made to him under Gen. Laws, c. 251, s. 14.

Debt, on an official bond given by the defendant Brackett as. treasurer of the Carroll County Five Cents Savings Bank. The plaintiffs are the assignees of the bank. Facts found by a referee. The charter of the bank was granted in June, 1857, for twenty years, and was extended twenty years in June, 1877. The bank suspended business September 21,1877.

<p>Petition, for leave to appeal from a probate decree allowing a will.</p>

Writ or Entry. The question was reserved whether evidence offered by the defendant is admissible to show that John B. Eaton (under whom the defendant claims) bought the land, paid for it with his own money, and took the deed to a third person.

Assumpsit, for attorney’s services. Facts found by a referee. The defendants are husband and wife. The wife requested the plaintiff, an attorney, to defend her husband in a suit brought against him, and the plaintiff, relying on her promise to pay him, rendered the services for which he seeks to recover in this action.

<p>In. tbe absence of statutory provisions, common carriers may by special contract limit their liability, at least against all risks but their own negligence or misconduct.</p> <p>Whether, in any particular case, a party uses the care and diligence which the situation requires, is to be determined as a question of fact.</p> <p>The knowledge of the receiving agent of a common carrier as to the character of goods taken for transportation is deemed to be the knowledge of his principal.</p> <p>Where the receipt or bill of lading given by an express company provides that, in case of loss, proof shall be made within a limited time and in a particular manner, if notice of loss is given within the time limited and . no objection is made to its sufficiency, but the objection to payment is put by the company upon other grounds, all defects in such notice will be regarded as waived.</p>

Bill in Equity, to establish boundaries. Facts found by a referee. The town of Eaton was chartered November 10, 1766, and was bounded on the south by “ Fletcher’s curve line.” Prior to or during 1774 the Masonian proprietors, owning a large territory of unbroken forest land in this county, caused to be surveyed and located out of it, by their surveyor, James Hersey, one hundred and seventeen 100-acre lots, which were subsequently known by number as lots in the Ossipee ranges.

<p>Bill in Equity. The plaintiffs, depositors in the Carroll County Five Cents Savings Bank, bring the suit in behalf of themselves and all other depositors who may join them. They allege that the defendants, who were officers, trustees, or directors of the bank, by their negligence and violations of law, and by their wilful and corrupt misconduct in various particulars set forth in the bill, occasioned great losses to the bank and to its depositors; that they made and caused to be published false statements of the affairs of the bank, showing it to be solvent when it was in fact insolvent, by means whereof the plaintiffs were induced to deposit their money, and to suffer it to remain in the bank to their loss. They say that in 1877 two of the defendants were appointed by the court as assignees of the bank, accepted the trust, and continue to act as assignees ; that they neglect and refuse to commence and prosecute any action at law or equity against the officers of the bank for the causes mentioned, although they have been requested by the plaintiffs to do so. They pray that the amount of their respective losses may be determined, and that the defendants who have been officers of the bank may be decreed to pay to them such portion of their deposits as by reason of the fraud, mismanagement, and negligence of said officers they have not received and cannot receive from the assets of the bank. The defendants demur.</p>

<p>Foreign Attachment. Issue between the plaintiff and trustees. Facts found by a referee.</p>

Motion of the plaintiffs for a decree and execution for counsel fees in addition to other costs in the equity case reported in 61 N. H. 160.

Covenant. Reported 62 N. H. 46. Verdict for tbe plaintiff. A bouse-lot on Park street, in Manchester, was conveyed, in 1873, by tbe Amoskeag Manufacturing Company, to Bartlett, who conveyed it with warranty to the defendant, who conveyed it with warranty to the plaintiff.

Case, for damage happening to a traveller by reason of a defective highway. Verdict for the defendants.

Bjxl in Equity, in the nature of a bill quia timet, filed by John H. Pearson, a stockholder of the Concord Railroad Corporation, in behalf of himself and all other stockholders who may join in the suit, except the defendants, against the Concord Railroad Corporation, John A. Burnham, J. Thomas yose, Samuel N. Bell, Frederick Smyth, John P. Pitman, James W. Johnson, and Benjamin A. Kimball, its directors, the Northern Railroad, the Concord & Claremont Railroad, the Sugar…

Bill in Equity, to charge the defendants with the payment of a promissory note, on. which a surety had received a mortgage of indemnity, now held and foreclosed by thfe defendants. Facts found by the court. April 11, 1873, the firm of C. & J. C. Gage gave the plaintiff their promissory note, payable to him or order, and signed by Isaac K. Gage as surety.

Assumpsit, by the administrator of the estate of George JET. Gigar, to recover $2,000 insurance on the life of the deceased.

<p>' Petition nor Partition. Ebenezer Miller, of Chichester in said -county, died March 31, 1836, leaving a will dated March 26, 1834, which contains the following among other provisions: “I give and devise unto my wife Mary Miller her maintenance out of my real and personal property situated and being in the town of Chichester- ... so long as she may continue my widow and from and immediately after her marriage or decease I give and devise all my real estate and personal property then being in said Chichester to‘my daughter Susannah Dow and to my daughter Abigail Miller during their natural lives and from and immediately after their decease I give and devise the same unto the heirs of Susannah Dow that she now has and to the heirs of my daughter Abigail Miller should they arrive at the age of twenty-one years and in case they should not I give and devise to the heirs of Mary Barton wife of David Barton equal shares of said property with the heirs of my daughter Susannah Dow.</p> <p>“Should either of my daughters Susannah Dow or Abigail Miller die before my wife Mary Miller I give and devise their title to said property to my said wife Mary Miller and none of the property is to descend to either of the heirs mentioned above until after the decease of Susannah Dow my daughter and my daughter Abigail Miller shall have deceased or until the marriage or decease of my wife Mary Miller.</p> <p>“Also I give and devise unto my daughter Mary Barton . one good feather bed . . . with suitable bedding for the same to be delivered to her immediately after the marriage or decease of my wife Mary Miller. Also I give and devise unto the said Mary Barton my daughter all my land and buildings which I purchased of Charles Barton situate partly in Pittsfield and partly in Epsom ... to have and to hold to my said daughter Mary Barton and her assigns for and during the term of her natural life without impeachment of waste and from and immediately after her decease I give and devise the same unto the lawful heirs of my daughter Mary Barton.”</p> <p>The will was proved and allowed on the fourth Tuesday of April, 1836. The testator left surviving him a widow, said Mary Miller, a son to whom he gave a small legacy, and three daughters, Susannah Dow, Mary Barton, and Abigail Miller. Mary Miller died September 18, 1852, never having married again. Susannah Dow was married, and had two children at the date of the will; she never had but one other child, and this died before the date of the will. She died in November, 1880. One of her children, Henry H. Hall, is now living, and is one of the defendants; her other child, Sally Green, died in 1870, leaving six sons, all still living. These sons, or their assignees, are also defendants. Abigail Miller was not married till after her father’s and mother’s decease, and died in 1872 without issue. Mary Barton, aged about 81, is still living, and has nine children who are living; she had one other child, who has died leaving six children. Mary’s nine children and six grandchildren are the plaintiffs.</p> <p>The testator left a farm and woodland in Chichester, containing about seventy-two acres, which has not been disposed of or encumbered by the widow or children, and is now to go to the parties entitled to it under the will. This real estate was appraised in the inventory of Ebenezer Miller’s estate at $800. Ebenezer Miller’s land and buildings, “purchased of Charles Barton, situate partly in Pittsfield and partly in Epsom,” were appraised at $175 in said inventory.</p> <p>The parties agreed to the foregoing facts for the purpose of determining who are entitled to the Chichester real estate, and what share each is entitled to.</p>

Appeal, by the plaintiffs, from the assessment of damages by the railroad commissioners and mayor and aldermen of Concord, for the plaintiffs’ interest in land taken by the defendants for a freight depot, yard, and side tracks. The plaintiffs’ interest in the land taken was a lease from Low, the owner of the land taken, for eleven years, and at the time the land was taken the unexpired term of the lease was about three years.

Trespass, qu. cl., for breaking and entering upon a tract of land in Concord. The plaintiff’s title was derived from a sale of the land for the taxes for the year 1876, assessed thereon against her husband, who was then in possession of the premises under a deed from the defendant to him dated July 10, 1873. The entry of the defendant complained of was under a mortgage of the same date from the plaintiff’s husband given to secure the purchase-money for the premises.

Trespass, for taking four cows. Facts found by a referee. February 24,1881, the Merchants’ National Bank of Lowell, Mass., recovered a judgment against Charles Lord, the plaintiff’s father. Execution issued returnable on the first Tuesday of April, 1881.

<p>An heir who refuses to join in an appeal from a probate decree allowing a will, is not entitled to a share of a sum received by the appellants on a compromise of the litigation.</p>

Writ oe Entry. Facts found by a referee. The land in controversy is a lot of five acres in Manchester, bounded on the east by Merrimack river, and on the south by Black brook. It formerly belonged to the defendant’s father, Daniel Farmer, Sen.-, who sold it, in 1847, to Fisk & Norcross, whose title has come to the plaintiff through the Merrimack Lumber Company. The defendant bought the lot at a tax sale in 1859.

The action was entered “ Neither party ” at the September term, 1880. At the January term, 1883, the plaintiff’s motion to bring the action forward and' strike off the entry of “ Neither party ” was granted, and the defendant excepted. The defendant, having been notified of the motion, appeared by counsel specially, and objected that the court had no jurisdiction, the action having been entered “Neither party ” by agreement.

' Appeal, from the refusal of tax assessors to abate a tax assessed on the plaintiff’s shares of the Merchants’ National Bank of Manchester. Facts agreed. The amount of the plaintiff’s money on hand, money at interest, and national bank stock was less than the amount on which he paid interest.

Assumpsit for repairing the defendants’, mill on Sunday. Facts found by the court. The defendants are manufacturers of doors, sash, and blinds, employing from fifty to sixty men. The plaintiff’s Sunday labor was not work of necessity unless made so by the fact that it saved a week-day’s operation of the mill for the defendants, and a week-day’s employment for their operatives. The court ordered judgment for the defendants, and the plaintiff excepted.

Assumpsit. Facts found by the court. The plaintiff is a minor. He engaged to work for the defendants two years, and to learn the trade of a moulder. The defendants agreed to pay him $1.00 a day for the first quarter of the two years, $1.17 for the second quarter, $1.34 for the third quarter, and $1.50 for the fourth quarter. They were to retain ten cents for each day’s work until the end of the two years.

Case, for injuries resulting in the death of the plaintiff’s intestate. Plea, the general issue. The plaintiff offered to prove the following facts: In 1863 the defendant city, established a reservoir of water for public use in extinguishing fires. The reservoir was on land of the defendant, bounded easterly and northerly by public streets, and enclosed by a substantial fence.

<p>Bill in Equity, for an accounting, and to establish priority of attachment.</p>

Foreign Attachment of money collected on accounts, and of uncollected accounts and books of account, assigned by the principal defendants to the trustee to satisfy their indebtedness to it.

Petition, for contribution for rebuilding the easterly half of' Taylor’s Falls bridge across Merrimack river, in Hudson and Nashua, under Gen. Laws, c. 72, s. 4. The facts appear in the opinion.

Case, for slanderous words spoken by the defendant of the plaintiff, a married woman. The declaration charged, and the evidence tended to show, that in an altercation between the parties the defendant called the plaintiff a whore. There was no allegation and no evidence of special damage. Verdict for the plaintiff. Motion by the defendant in arrest of judgment, because the words proved to have been spoken are not actionable without proof of special damage.

<p>Assumpsit, for use and occupation. Facts found by a referee.</p>

Motion lo discharge bail. Facts found by the court. The defendant was arrested under the provisions of Gen. Laws, c. 225, s. 8, the affidavit charging “ that he conceals his property so that no attachment or levy can be made, and that there is good reason to believe he is about to leave the state to avoid the payment of his debts.” When the suit was commenced the defendant was the owner of property subject to attachment sufficient to secure the plaintiffs’ debt, and…

<p>Replevin, for a wagon. The defendant justified under an attachment, as the property of Derry & Go. The plaintiff introduced evidence tending to show that Derry & Co. were carriage-makers ; that they contracted to build a grocery wagon for him complete, except the lettering on it, for $165; that he paid them in full before the attachment, and before the wagon was completed ; that after it was completed and before it was attached he saw it and accepted it, but not wishing to use it then, and having no place convenient to store it, he requested Derry & Co. to allow it to remain on their premises, to which they consented, and it remained there until it was attached. The plaintiff’s name was painted upon it ¡orevious to its attachment, and before it was completed, the plaintiff himself contracting with and paying an out-, side part}*- for the lettering.</p> <p>On the foregoing facts the court ruled, that, there having been no change of possession, the plaintiff could not recover, and directed a verdict for the defendant, to which the plaintiff excepted.</p>

Petition, for the abatement of taxes. The petition alleges that the plaintiffs are the owners of certain real estate within their location in the city of Nashua; that it is assessed and taxed by the state, and is not liable to be taxed elsewhere; that the assessors of Nashua assessed taxes upon the same as follows: Franklin opera-house $82, upon a valuation of $5,000 ; Indian Head Bank office $24.60, upon a valuation of $1,500 ; brick building adjoining the bridge $73.80,…

Assumpsit, to recover $7,500, being the amount of an assessment voted June 13,1881, of $75 on each of one hundred shares of stock in the plaintiff corporation, for the purpose of paying a debt to one of its stockholders. Facts found by the court.

Bill in Equity, by the executors of the will of James Boyd, late of Antrim, deceased, praying advice and direction as to the proper construction of the will of the deceased and their duty as executors. The will is dated April 2, 1880. The testator died April 18, 1880. In the will the testator gave certain annuities to his nephews and nieces, and certain specific sums to certain charitable institutions.

Assumpsit, to recover the royalty cine under the following contract : 11 Memorandum of an agreement made between Edward Lindner, of New York, and E. A. Straw, agent of the Amoskeag Manufacturing Company, of Manchester, New Hampshire, to wit: “ The said Lindner, on his part, agrees that the said Amoskeag Manufacturing Company shall have the sole and exclusive right and privilege of manufacturing small-arms, carbines, and muskets under his patent, dated March 29, 1859, until…

Assumpsit. Plea, a discharge in bankruptcy: replications (1) that the debt was created by the defendant’s fraud, and (2) that after the petition in bankruptcy was filed the defendant promised to pay the debt. Verdict for the plaintiffs.

Assumpsit, on the defendant’s written agreement, in consideration of $1,000 received from the plaintiff, “ to pay said sum of ten hundred dollars to Daniel K. Foster, of Pittsfield, in said county, upon the said Daniel K. Foster’s giving a receipt in full settlement of certain suits at law now pending in court” in favor of Daniel K. Foster and against the plaintiff. The writ contains also a count for money had and received.

Bill in Equity, praying that the rights of the plaintiffs and defendants in the waters of certain privileges and reservoirs may be fixed and determined by the court, and that the defendants be forever enjoined from so using the waters of said privileges as to interfere with the rights of the plaintiffs in the same. Facts found by a referee. The defendants own woollen-mills at the outlet of Harrisville pond, in Harrisville, which were built in 1836.

Debt, for rent. Facts found by the court. Rent is due from the defendant on a sealed lease, which is signed by him as lessee, and by the plaintiff, Sanborn, as lessor. The leased premises belonged to Sanborn, Stowell, and others. The lease (in which Sanborn “ and others ” are described as the lessors) was signed by none of the owners but Sanborn, at the request of the defendant, who preferred to deal with Sanborn alone.

Appeal, by Mary F. Nichols, from a decree of the probate court denying her petition for a homestead in the estate of her deceased husband. Fifteen years before his death they moved from his farm into a house upon adjoining premises owned by her, where they resided during the remainder of his life. After their removal he continued to occupy his farm and carry it on as before. Facts found by a referee.

Assumpsit, for assessments on premium notes given by the defendant for insurance upon property in this state in the plaintiff company. Facts found by a referee. The plaintiffs are a foreign corporation, organized under the laws of Vermont, and have not complied with the laws of New Hampshire relating to foreign insurance companies. The defendant was, at the time of the insurance and assessments, and still is, a resident of New Hampshire.

Case, for injuries from the falling of a flag-staff in a public highway, reported in 60 N. H. 374. The amended declaration alleged, and the' evidence tended to show, that the plaintiff, while travelling in a highway in Newport, was injured by the negligence of persons employed by the defendants’ selectmen in the removal of a flag-staff which stood near the highway, and which, by decay, had become dangerous to travellers.

<p>In a bill in equity, under Gen. Laws, c. 198, s. 22, for the recovery of a claim against the estate of a deceased person, the question whether the claimant has been guilty of culpable neglect is a question of fact to be determined at the trial term.</p>

Replevin, for a pleasure boat, about eighteen feet in length, and named the “ Edmund Burke.” Facts found by the court. The plaintiff is the executrix, and the defendant is the widow, of the late Edmund Burke, deceased. On the first of July, 1879, the testator purchased a tract of one acre of land, situate in the town of Sunapee, and in the neighborhood of Sunapee lake, the nearest point being about thirty rods therefrom.

<p>In an appeal from the decree of the prohate court accepting the report of a committee of partition, the proceedings being regular, it is not sufficient to allege that the committee erred in its findings of fact, but fraud or its equivalent must be charged.</p> <p>Appeal, from a decree of the probate court, accepting the report of the committee appointed to make partition between the parties of certain parcels of real estate. Among others, the following reasons of appeal were assigned:</p> <p>2. Because the values of said parcels were not taken into account in making said partition.</p> <p>8. Because said partition was unjust and unequal.</p> <p>4. Because the partition made did not give this appellant one half of the value or property attempted to be partitioned.</p> <p>5. Because said committee acted solely in the interest of the appellee in making said partition.</p> <p>6. Because said parcels, the tannery, water-power, and appurtenances, which were appraised by the same men as appraised the estate of Charles H. Eastman, October 21, 1879, at $6,333, were set off or left to said appellee at $2,300, as she is informed.</p> <p>7. Because a pasture and field, which were a valuable and necessary appurtenant to said homestead, were severed therefrom by said partition and given to said appellee, which diminished the value of said homestead to a much greater extent than its value apart therefrom, and thus left said homestead with tillage land without any pasture land, whereby said tillage land is rendered comparatively valueless.</p> <p>8. Because said committee was composed of men unqualified to judge of the values of such parcels of real estate, and unacquainted with the respective values thereof for the purposes to which they are adapted, and their estimates were grossly erroneous.</p> <p>9. Because said committee, if they undertook to consider the valuation of the parcels to be partitioned, were greatly mistaken or greatly deceived as to the values thereof.</p> <p>11. Because the same men who composed said committee were the appraisers upon the estate of Charles H. Eastman and of each and all said parcels of real estate, and as such appraisers, on the 21st of October, 1879, under oath appraised them all of the value of $17,124, and of which the parcels set off to this appellant were valued at said appraisal at the sum of $6,800, and the parcels left to said appellee were valued at said appraisal at the sum of $10,274.</p> <p>The appellee moved to dismiss the appeal.</p>

Bill in Equity, by the widow of David P. Sanborn, against tbeir children, for a construction of his will, and for a decree to carry it into effect.

<p>Railroad bonds are taxable to their owners as money at interest, and are; not exempted by being secured by mortgage or otherwise.</p> <p>Railroads, like other real estate and chattels, are not exempted from taxation by their owners’ indebtedness, or by the manner in which that indebtedness is secured.</p> <p>In the assessment of a railroad “ as near as may be in proportion to the taxation of other property” in towns, the rate at which savings-banks are taxed by the state is not considered.</p>

The first action is a bill in equity to restrain the defendant, as administrator of the estate of Ezra Foster, from selling at auction certain live stock, inventoried as a part of Foster’s estate, but claimed by the plaintiffs. The second action is replevin for two-bulls which belong to Clark, if the defendants prevail in the first suit. Facts found by a referee.

The plaintiff recovered a judgment against the defendant on ■which his counsel claimed a lien for their fees and disbursements. At the same term, in another action, Straw recovered a judgment against Whitcomb, which he moved to offset against the plaintiff’s judgment.

Writ oe Entry. Facts agreed. The defendant’s title depends on the validity of deeds from the collector of taxes for the years 1858 to 1860. There is no evidence that a notice of the sale for 1858 was given, except the collector’s statement, in his return, that the sale was “ pursuant to notice.” The description of the premises in the assessment for 1860 was “ L. G. Merrill,' — J. Moses, occupant, — 75 acres.”

Bill in Equity, by a citizen and tax-payer of Dorchester, to ■compel repayment to the town of money alleged to have been wrongfully received from the town by some of the defendants. Facts found by a referee. The town had brought suits against them for the same cause of action, and before this bill was filed those suits were entered “Neither party” by agreement between the defendants and an agent of the town authorized by vote of the town to settle them.

<p>Trespass qu. cl. Verdict for the plaintiff. This plaintiff was the defendant in Smith v. Smith, 62 N. H. 429; and the sewer which ran through his land to his barn cellar from the house on tbe adjoining land of Mrs. Smith, and which he dug up August 1, 1881, is the subject of controversy in this case. In the winter of 1880-81 the sewer was stopped by frost at its lower end in the plaintiff’s cellar, and he fastened plank against the outlet and covered it with earth. July 29, 1881, the defendant, being Mrs. Smith’s tenant, entered the plaintiff’s cellar, and removed the obstruction from the outlet of the sewer; and this is the alleged trespass.</p> <p>The jury were instructed as follows: “The liability of the defendant depends upon the question whether it was reasonably necessary, for the full enjoyment by Mrs. Smith of the premises set off to her as dower and homestead, that the drain should continue to discharge into the barn cellar. In determining this question, you will take into consideration the convenience and benefit of the drain to the defendant, and the inconvenience and injury to the plaintiff. Is it reasonable, under the circumstances as shown by the evidence, to require the plaintiff to receive the sewage into his collar, or to require the defendant to provide some other mode for disposing of it? Each party is entitled to the beneficial use of his property; but the plaintiff’s premises are subject to the easement of this drain in favor of the defendant’s premises, if it is reasonably necessary that the drain should continue to discharge into the cellar. The purposes for which the property of each party is used, the amount of sewage, the extent or degree of its offensiveness and injuriousness, and the expense and labor required to take care of it after it is discharged into the cellar, or to provide some other receptacle for it without discharging it into the cellar, are some of the matters to be considered. The settlement of this question also involves the inquiry whether or not a drain or receptacle can be conveniently made upon the defendant’s land or without going upon the plaintiff’s land, with reasonable labor and expense. [If Mrs. Smith can conveniently furnish herself with a drain or receptacle, without going upon the plaintiff’s land, with reasonable labor and expense, then it is not reasonably necessary to the enjoyment of her estate that she should discharge her drain into the plaintiff’s cellar.] ” The defendant excepted to that part of the charge inclosed in brackets, and to the refusal of the court to charge that “ The question whether the drain passed by the setoff, depends upon whether it was reasonably necessary for the enjoyment of the premises so set off, without regard to how it affects the remaining part of the estate.”</p>

The first named of the actions is a bill in equity for the reversal of a judgment and the annulment of the levy of an execution on the plaintiff’s land, issued on the judgment; also for a new trial upon the ground of accident, mistake, and misfortune. The judgment was rendered against the plaintiff and her husband, upon default after an appearance, for the amount of a joint and several promissory note signed by them and payable to the defendant.

Assumpsit, upon a promissory note. After suit was brought, the defendant gave to the plaintiff a new note for the full amount of the one sued upon, and ten dollars in money, and at the same time promised to furnish security for the new note. Upon this condition and understanding the plaintiff gave up the old note to the defendant.

Trespass, qu. cl., and. a second count in trespass de bonis. Facts found by a referee. August 8, 1879, tbe plaintiff conveyed to George C. Cox a tract of land, with the building thereon, used as a grist-mill. In it were a portable grist-mill, steam engine, and boiler.

Assumpsit, on a promissory note for $375.48, dated January 22, 1879, payable to the plaintiff’s intestate, Rebecca Gale. Reported in 62 N. H. 227. Facts found by the court. Daniel Lee, a resident of Holderness, enlisted into the military service of the United States September 8, 1862, and was counted on the quota of men required from Holderness.

APPEAL, from the decision of tbe commissioner of insolvency upon the claim of the plaintiff against the estate of the defendant’s intestate.

Case, for injuries upon a highway. Facts found by a referee. The accident happened January 28, 1882. February 3, 1882, the plaintiff filed with the town-clerk a statement as follows: “ To the town of Ashland in the county of Grafton.

Attachment, for contempt, on the complaint of Sally A. Wright. An action in favor of the complainant against the defendant was referred by the court, and a hearing before the referee was had at Woodsville. The complainant’s son was a material witness in her behalf, and attended the hearing at her request.

Assumpsit, by a corporation against one of its stockholders, for the amount of two assessments, made in 1869 and 1875. Facts found by a referee.

<p>Assumpsit. Facts found by a referee. In payment of a debt, tbe defendant gave the plaintiff several notes signed by others, one of which he represented and believed- to be secured by mortgage. It was not secured by mortgage, and was and is of no value. The plaintiff relied on the representation, and the mistake was material. The plaintiff rescinded his acceptance of the worthless note, but did not tender it to the defendant until the trial.</p>

Bill ln Equity, for an accounting and the conveyance of land. The plaintiff Mrs. Farnham loaned to her husband a promissory note and mortgage of hers, then overdue, to pledge as collateral'security for his debt of $100 to the defendant.

Case, for criminal conversation with the plaintiff’s wife. A second count charged the defendant with enticing, persuading, and inducing her to abandon him. Verdict for the plaintiff. The defendant is a physician living in Lancaster.

Assumpsit. The referee finds due the plaintiff on the defendant’s note a balance of $50.34, and also the sum of $19.74 on a certain order. The latter finding was subject to exception by the defendant.

<p>One may break his covenant by disabling himself to perform it.</p> <p>Debt, on a bond conditioned to convey to the plaintiff a tract of land. Plea, non est factum, with a brief statement of performance. Facts found by the court.</p>

Assumpsit. The defendant was in the employ of Webster, and was taken sick. Wallace was called to attend her as a physician, and charged the defendant six dollars, which Webster paid without Moulton’s request, understanding that it would be allowed in settlement with Moulton for her labor. Subsequently, Moulton sued Webster on account for the labor, and Webster filed a set-off, which included the item of six dollars paid Wallace.

<p>Libel, for divorce. At the trial term the facts were found, a divorce was decreed, and the defendant excepted.</p>

<p>In Equity. Facts found by the court.</p>

<p>Attachment, for the violation of an injunction. Facts found by the court.</p>

<p>Assumpsit, on a note signed by Dearborn (who is defaulted) and by George E. Davis and his wife. Facts found by the court.</p>

<p>Assumpsit, for logs.</p>

<p>Petition for a highway in the defendant town.</p>

<p>Appeal from the refusal of the probate court to vacate a decree settling the account of the defendant as executor of David Messer, the plaintiff’s grandfather. Facts found by the court.</p>

The action was entered at the last January term. Copies of the petition and declaration were produced and filed, but there had . been no service thereof or of any order of notice upon the defendant, who appeared specially, and within the first four days of the term moved that the action be for that cause dismissed.

<p>In Equity. Reported 62 N. H. 393. Facts found by the court.</p>

Reported 62 N. H. 409. Facts found by the court. The creditors’ motion to dismiss was granted, and the plaintiffs excepted.

<p>Case for injuries from an obstructed highway, resulting in the death of the plaintiff’s intestate, under c. 35, Laws of 1879. No> statement of the time and place of the injury and of the amount, of damages claimed was filed with the city clerk, according to GL L., c. 75, ss. 7, 8, 9. The defendants demurred.</p>

<p>Petition for a mandamus to restore the plaintiffs to membership in the Ancient Order of Hibernians. Facts found by a referee.</p>

<p>Appeal from the decision of the commissioner of insolvency ■on the estate of the defendant’s intestate, disallowing the plaintiff’s claim for money overpaid. Facts found by a referee.</p>

<p>Case for slander. Report of a referee for the plaintiff.</p>

<p>The undersigned respectfully request the opinion of the HonWe the Justices of the Superior Court of Judicature upon the following questions—</p> <p>First, Has the Legislature of this State authority to amend the charters or acts of incorporation of literary corporations, by increasing the number of Trustees — adding boards of overseers and prescribing modes of visitation in cases where such corporations were established by the present government of this State, or by John Wentworth formerly Governor of the province of New Hampshire exercising authority in the name of the British King?</p> <p>Second, Have the Governor and Council of this State, in virtue of an act passed June 27th, 1816, entitled “An act to amend the charter and enlarge and improve the corporation of Dartmouth College,” authority to fill any vacancies in the boards of Trustees or Overseers happening since the 26th of August last, there not having been on that day a meeting of a quorum of either of said boards as prescribed by said Act ?</p>

<p>The 74th article of the constitution does not authorize the mayor and aider-men of a city to require the opinions of the justices of the superior court.</p>

<p>The term of office of commissioned officers of the militia is not limited to five years by Gen. St., c. 87, s. 19.</p>