Volume 64 — New Hampshire Reports

A caption of depositions by the plaintiff was notified for April 2, 1885, at the office of Burleigh & Adams. On that day the witness, who was the plaintiff herself, was unable by reason of sickness to attend at the place named, and the magistrate adjourned the caption to her residence a short distance away, and her deposition was there taken. The defendant did not appear either at the office of Burleigh & Adams, or at the plaintiff’s house.

Bill in Equity, to remove a cloud upon the title of two parcels of land in Haverhill, created by tax deeds thereof dated February 6, 1885. Facts found by the court. April 1, 1888, the premises in question were owned by a voluntary corporation called the Haverhill Fibre Co., which had- its principal place of business in Haverhill.

An assessment of a joint and undivided tax upon lots of land owned by different persons is not authorized by the statutes, and is not legalized by a general healing act. Section- 14, c. 58, Gen. Laws, providing for the publication of notice for three successive weeks, at least six weeks before a sale, requires the last publication to be at least six weeks before the sale.

Foreign Attachment. Issue between the- plaintiff and the claimant. The plaintiff, trustees, and claimant are citizens of this, státe; the defendant is a citizen of Vermont. The action was begun January 31, 1885, and is founded on a note for $100, dated Fairlee, Vt., November 8, 1883, signed by the defendant, and payable to the plaintiff, or bearer, on demand with interest annually.

Case, to recover a sum which the plaintiffs were compelled to pay Eaton as damages for an injury caused by an obstruction placed in a highway by the defendants. March 19, 1884, while the suit Eaton against the plaintiffs was pending, the following notice was served upon the defendants: “ Grafton ss.

Foreign Attachment. Issue between the plaintiff and the claimant. Facts found by the court. The plaintiff, trustee, and claimant are citizens of this state. The defendant is a citizen of .Vermont. . The claimant is the assignee' in insolvency of the defendant in Vermont. The trustee is indebted to the defendant upon three negotiable promissory notes, made and payable in Vermont ; also on account for meal sold and delivered to him by the defendant in Vermont.

Assumpsit, for the price of a horse sold by the plaintiff to the defendant. Facts found by a. referee. The plaintiff warranted the horse sound, surefooted, and all right in every way, shape, and manner. The defendant claimed that the horse was a tripping or stumbling horse at the time of the sale, and so that there was a breach of the warranty.

Assumpsit. Facts found by a referee. The plaintiff furnished the defendant with supplies toward hauling wood, and claimed a lien under Gen. Laws, c. 189, s. 18. The Grand Trunk .Railway Company appeared as claimant of the wood, and objected to the rendition of a judgment in rem, on the ground that a lien had not been secured by attachment. The attachment was made by Graham, whose appointment as a special deputy for the service and return of the writ was. not under seal.

<p>An erroneous statement in the record, that by agreement of the parties the report of a referee (appointed under the act of 1874) is to be final, may be corrected by an order rescinding the finality clause.</p>

Bill in Equity, praying, among other things, for an injunction to restrain the defendants, Pike Bros. & Smith, from prosecuting a suit at law against the plaintiff, founded upon certain written contracts concerning the sale of timber, and for an accounting of the matters involved in that suit. The defendants filed several answers. Pike Bros. & Smith moved for a heaving of the questions of fact and law arising upon their answer.

Action, for rent of the plaintiffs’ land and water-power for the years 1881, 1882, 1883, and 1884, upon a lease dated February 9, 1874, for the term of twenty years, with the privilege of terminating the same upon one year’s notice after the expiration of ten years.

<p>Bill in Equity, praying for partition of a spring and aqueduct leading thereto, owned in common by the plaintiffs and the defendant. Facts found by a referee.</p> <p>There is no practicable mode of dividing the property in question, and no mode of ascertaining when the defendant has his share of the water, but by conducting all the water to a reservoir, and thence distributing it to the several owners ; and that would entail an unwarranted expense. A sale of the property would be inequitable because the plaintiffs are in a condition to become purchasers, and the defendant is not. The defendant has heretofore ta,ken water from the aqueduct to supply his hotel premises in Whitefield, and he claimed that his interest in the spring and aqueduct had become an appurtenance to his hotel premises. The value of his interest is $500; and the most just and equitable disposition of the controversy seems to be, that the plaintiffs pay the defendant $500 for bis interest, and the defendant thereupon convey the same to them. Upon the coming in of the report, an alternative decree was entered, giving the defendant twenty days to elect whether he would accept $500 for his interest in the prop-, erty, and providing that in case he should not so elect, the whole should be sold by a receiver appointed for that purpose, and the proceeds divided among the owners according to their several interests. The defendant claimed that the court had not legal power to order a sale of such property under the circumstances shown, and excepted to the decree.</p>

Bill in Equity, by tbe assignee in insolvency of William Downs & Sons and W. W. Downs, setting forth that by accident and mistake he was prevented from filing objections within seven months to certain unfounded and fraudulent claims filed by the several defendants against the insolvents’ estates, and praying that those claims be disallowed and expunged from the list of claims, or that he be now permitted to file his objections thereto in the probate court, and have the same…

Case, for injury to the plaintiff in alighting from the defendants’ passenger car at Newton Junction.

<p>Ordinarily a testator’s intention is to be ascertained from the language of the whole will, rather than from particular words and phrases, especially when it is apparent that certain words are used in a sense different from their legal and technical meaning.</p> <p>It is not the uncertainty of enjoyment in future, but the uncertainty of the right to that enjoyment, which makes the difference between a vested and a contingent interest.</p>

Bill jn Equity, by the administrator, widow, and two minor children of Charles C. Green, deceased, to recover possession of a certificate of insurance upon the life of said Green. Facts found by the court. The defendant is the mother of an illegitimate child, of which Green was the father.

Petition, under Gen. Laws, e. 75, s. 9, for leave to file with the defendants’ clerk a claim for damages. Within six months of the alleged injury, the petition, which should have been entered in the county of Strafford, was filed in Belknap and presented to-the court, but was not then entered on the docket.

Bill in Equity, for an accounting between the plaintiff and the defendant as copartners, and for a settlement and winding up of their partnership affairs. Two suits at law between the same parties were tried, in connection with the bill, at the same time. Facts found by a referee.

Foreign Attachment. The writ is dated March 3, and was served on the trustee March 4,1884. At the February term, 1884, the defendant was ordered to file a bond in $200, as security for costs in a bill in equity pending in his favor against Cram. Instead of filing a bond, he deposited $200 in money with the trustee, stating to him at the time that $175 of it was furnished by James T. Johnson for that purpose.

Assumpsit, for money had and received by the defendant’s intestate, Mary Snow, to the plaintiff’s use. Facts found by a referee. In the summer of 1855 Mary Snow, being then a married woman, borrowed from the plaintiff $275 for the use of her husband in his own business. At that time she had title by deed from her father of his homestead in Rochester, of which her father held a life lease from her. Her husband died in 185‘8, her father in 1859, and her mother in 1860.

Complaints, upon Gen. Laws, e. 2G9. s. 5, for beating a drum within the compact part of the town of Somersworth, not by command of a military officer having authority therefor. The respondents admitted doing the acts charged, and offered to prove that they were done in accordance with their sense of religious duty, and in worshipping God according to the dictates of their own consciences, and that they were not disturbing the public peace or the religious worship of others.

<p>A decree of partition not appealed from in a court of probate is conclusive upon the parties and their privies as to the state of the title at the time of its rendition, and constitutes a bar to a claim of a greater interest in the land than the share decreed to them.</p>

Action, upon the landlord and tenant act. G. L., c. 250. Plea, soil and freehold. Facts found by the court. The plaintiffs acquired their title by deed from one Wilson, dated December 12, 1884. At the date of the plaintiffs’ purchase the defendant was in possession of the premises, and had been for seven or eight years, and had not paid rent, and it did not appear that he was ever in as tenant of the plaintiff's’ g’rantor.

Assumpsit, for 250 cords of slabs, butts, and edgings claimed by the plaintiffs as rent of a saw-mill. Facts found by a referee.

Writ or Entry, filed by way of amendment to the original bill in equity, mentioned in this case as reported 63 N. H. 321, and brought to recover the farm there described. The defendant pleaded to the amendment (1) non-tenure special; (2) that the allegations in the plaintiff’s declarations are not true ; (3) a brief statement for improvements.

<p>Petition of the defendant to a justice of the court for the appointment of two justices under Gen. Laws, c. 241, s. 1.</p> <p>In March, 1885, the defendant, being arrested on the plaintiffs’ execution, was discharged upon giving bond as provided in Gen. Laws, c. 240, ss. 1, 2. Having made no application within the year for admission to take the poor debtor’s oath, he surrendered himself at the end of the year, when he was arrested on the plaintiffs’ alias execution, and committed to jail, where he remains.</p>

Replevin for goods bought from the plaintiffs by. one Nellie Davis, and by her sold to the defendants. Facts agreed. The plaintiffs claim to hold the goods on the ground that they were purchased with a fraudulent intent on the part of said Nellie Davis of not paying for them, which entitled the plaintiffs to rescind the sale. The officer found a portion of the goods, and delivered them to the plaintiffs.

Writ of Entrst, to recover an undivided half of a tract of land in New Hampton called the Russell pasture. The plaintiff’s, title was a collector’s deed on a sale of the land for non-payment-of the taxes assessed upon it. for the year 1882. For several years. prior to, 1879 the land was owned by John Russell, who sold it April 4, 1879, to Sarah A. Russell, the wife of the defendant, and Mary F. Hoyt.

<p>Case, for injury to the plaintiff caused by the defendant’s horse by striking him with the 'forward feet while standing harnessed into a stage-wagon, and left unattended at the railway station at Alton Corner. The declaration alleged the vicious character of the animal, and knowledge by the defendant.</p> <p>To show the horse’s vicious disposition, and its inclination to injure mankind, evidence of numerous instances of its squealing and kicking at people, in the harness, in the stage-wagon, in the barn, and in the stall, — in fact, that it was a notorious kicker, — was admitted, subject to exception by the defendant. The defendant did not deny his knowledge of the vicious character of the horse respect to kicking, but did deny his knowledge of its rearing and striking with the forward feet.</p> <p>The defendant requested the court to charge the jury that he was not liable unless he had at some time previous to the accident known or heard that the horse had struck with the forward feet in a manner substantially similar to that in which the jury found that the plaintiff was struck, which the court gave with this modification, — that if on the evidence they find that the horse had a vicious disposition, and was inclined to injure mankind, so that the defendant, as a reasonable man, knew that it would be disposed to commit acts similar to’the one sued for, it would be such knowledge on his part as might make him liable for the injury done the plaintiff; to which the defendant excepted.</p>

Trover, for a lot of machinery, boxes manufactured and in process of manufacture, stock for ■ boxes, and lumber. The plaintiff claimed title by virtue of two mortgages executed to her by Severance & Co., — one dated December 28, 1883, to'secure a note for $1,815.57, subject to a prior mortgage to one Welch for $257.74; the other dated March 13, 1884, to secure a note for $500.

<p>Trover, for wood cut by the defendant on lot No. 2, which had been conditionally conveyed, with lots Nos. 1 and 8, by a single mortgage given by one Dearborn to a bank. Facts found by the court. The .mortgage had been foreclosed, in the second statutory mode, on No. 1, which was equal in value to the 'mortgage debt. If the mortgage was not foreclosed on No. 2 in the same manner and at the same time, the plaintiff is entitled to judgment for $135.</p>

Replevin, for the plaintiff’s sleigh. Facts found by the court. The Concord Carriage Company was a partnership consisting of Worthington and two others. The partners had an understanding, frequently acted upon, that each might contract for work to be done by the firm in payment of his separate debts.

Appeal, from the police court of Concord. Issue between the plaintiff and the claimant. Facts found by the court. Prior to the service of the writ on the trustees, the defendant had been at work for them under a contract to do a piece of grading for $50. No time was limited in which the grading was to be completed, but it was done at the time the writ was served.

Assumpsit, upon a warranty of a steam-heating boiler. Facts found by the court. The defendants, by their agent Chesley, at the time of the sale, warranted the boiler to be durable, meaning, as both parties understood, that with proper usage it would last and do good service twenty or thirty years.

Bill in Equity for instructions. Franklin Simonds died November 9, 1869, leaving a will containing the following bequests: “To my sister Mrs. Abigail Crosby, the use and income of the sum of three thousand dollars for and during her life.” “To the three children now living of my aforesaid brother Otis, said sum of three thousand dollars after the decease of my aforesaid sister, in equal shares.” The three children all survived the testator, but died before the sister, Mrs.…

<p>Assumpsit, to recover a balance which the plaintiff claimed to be due him on his salary as police justice of Pittsfield from August 1, 1876, to March 1, 1885, being the difference between the fees received by him in that office and an annual salary of one hundred dollars; and interest.</p> <p>The action of the town must be deduced from the article in the warrant and the vote under it. The article was, “To see if the town will establish a police court, and provide a suitable compensation for the justice of such police court therein.” What authority had the town to act upon the subject stated in the article, and what subject was therein stated? The only authority possessed by the town was given by c. 196, s. 1, of the Gen. Stats.: “Any town may by vote provide a suitable compensation, not less than one hundred dollars per annum, for the justice of a police court therein.” Under this law the town was authorized to vote a compensation, not necessarily a salary; it might be the fees of the office, provided they equalled or exceeded one hundred dollars a year.</p> <p>The only subject stated in the article on which the town could act was to determine whether or not the town would vote “a suitable compensation, not less than one hundred dollars per annum.” The town could either vote this compensation of one hundred dollars or more, or refuse to vote it. They were obliged to accept one or the other alternative; it must be either an affirmative or a negative vote. If it was an affirmative vote, it would warrant the establishment of the court by the appointment of a justice; but if it was a negative vote, such a result could not legally follow. A vote that would warrant the establishment of the court entitled the justice to a compensation of one hundred dollars or more per annum, and a vote that would not entitle the justice to compensation of at least one hundred dollars would not warrant the establishment of a police court: either both results must be justified by the vote, or neither can be. And the court cannot hold, by any logical course of reasoning, that this article warranted a vote which would authorize the establishment of a court, and yet not entitle the justice to at least one hundred dollars. A fair construction of the vote, in conjunction with the article, by an application of the statute, will not warrant such a conclusion. The vote was, “That a police court be established in the town of Pittsfield; that the justice of said court, in lieu of an annual salary of one hundred dollars, shall be entitled to the fees accruing to said office.” This is plainly an affirmative vote; it votes the minimum compensation stipulated in the statute, one hundred dollars. It means simply this: The town guaranteed that the compensation‘should be at least one hundred dollars, and if the fees equalled or exceeded that sum, that exonerated the town; but to the extent the fees fell short of one hundred dollars a year, the town was obliged to pay the justice. That the town intended to do that which was essential to warrant the establishment of the court is unmistakable. In the language of the court in State v. Varrell, 58 N. H. 149, “In this case there is a * * * presumption that the town intended to comply with the statute which authorized the town to vote on this subject: and the vote is to be construed accordingly. The statutory minimum of compensation is to be implied.”</p> <p>What was the intention of the legislature in the enactment of the statute on which the right to establish a police court is based? Did they intend to permit a town to vote a compensation of less than one hundred dollars per annum, and make such a vote the authority for establishing a police court?</p> <p>The intention of. the legislature must be gathered from its acts.</p> <p>(1) The first act is chapter 1282 of the laws of 1852. This act provided, among other things,—</p> <p>(a) That in each town which would adopt the act there should be a police court consisting of a justice and special justice, who should be “learned and discreet,” with the jurisdiction of a justice of the peace.</p> <p>(b) The costs and fines were to be paid to the town.</p> <p>(c) The court should meet once a month in a place provided by the town.</p> <p>(d) The town should pay a sum not less than one hundred dollars, to be fixed from time to time.</p> <p>(e) The act should be in force in such towns as adopted it by majority vote.</p> <p>In this act there was no provision for abolishing the court by the town. The court being once established, it could only be abolished by the legislature.</p> <p>(2) In 1854, by chapter 1234, this act was aiñended. The law, as amended, authorized the town to rescind the vote by which the act of 1852 was adopted. The effect of rescinding the vote was to absolutely abolish the court.</p> <p>(3) In the revision of 1867, s. 1, o. 196, Gen. Stats., was newly enacted, and s. 14 of the same chapter, with material alterations, was substituted for c. 1534 of the Laws of 1854. (See Commissioners’ Rep., 1867.)</p> <p>Under the law of 1867 the town was authorized to vote a compensation of not less than one hundred dollars, and instead of abolishing the court by a vote of rescission, the effect of the rescinding vote was to leave the court, but relieve the town from its obligation to pay or guarantee one hundred dollars a year. It was as essential to have two independent votes, at different meetings, under different articles, to establish the court, and abolish the obligation to pay one hundred dollars under the law of 1867, as it was to have two independent votes to adopt the law of 1852, and abolish the court under the law of 1854. If one vote of the town under one article, at the same meeting, could not adopt the law of 1852 and abolish the court under the law of 1854, it is plain that one vote cannot “provide a suitable compensation, not less than one hundred dollars per annum, for the justice of a police court,” under s. 1, c. 196, Gen. Stats., and “rescind their vote establishing an annual salary for a police justice,” under s. 14 of the same chapter. To pass a vote and rescind the same on a single motion, under one article, is an anomaly, an impossibility, if not an absurdity, in town-meeting, or in parliamentary law. The legislature unmistakably contemplated that the town should first vote a compensation of not less than one hundred dollars, and upon that establish the court: then, under a proper article in the warrant of a subsequent meeting, they might “rescind their vote establishing an annual salary.” They are authorized to do but one thing at a time. They must first do an act before they can undo it. It is as essential and imperative as that marriage should precede divorce, or that birth should precede death, or that a contract should be made before it is rescinded.</p> <p>If the defendants’ contention is right, viz., that the defendants did not vote a compensation of one hundred dollars a year, then the town voted no compensation, because the fees belonged to the town only in the event that they voted to pay the statutory compensation.</p> <p>The language of the vote of the town of Pittsfield, “that the justice of said court, in lieu of an annual salary of one hundred dollars, shall be entitled to the fees accruing to said office,” is unambiguous, and clearly conveys the idea that the fees accruing to said office were to take the place of the annual salary. It is not capable of the construction that the fees were to be credited as part payment of salary, and that the town was to pay the balance, without entirely perverting the meaning of the phrase “in lieu of” from its well established and universal signification. In State v. Varrell, 58 N. H., 148, it is said that “the presumption that the legislature, in the enactment of laws, intend to act in conformity with the constitution, tends to support such a construction of statutes as gives them a constitutional operationand that in such cases as this “ there is a similar presumption that the town intended to comply with the statute which authorized the town to vote on the subject, and the vote is to be construed accordingly.” But to justify the application of this principle, the instrument to be construed must be ambiguous in its language and capable of two constructions. Best Prin. Ev. 346 ; Wood v. Adams, 35 N. H. 32, 36 ; 2 Par. Cont. (7th ed.) 631. Where the legislature or the town, by using expressive and unambiguous language, has left no ground for appeal to such presumption in aid of construction, the language must have its natural significance and force, and stand as the expression of the ideas and intention of the legislature or town on the subject. The law never overcomes by its implications the express provisions of parties; — if they are illegal, it avoids them; if legal, it yields to them. 2 Par. Cont. 646.</p>

Petition, for a mandamus for the assessment of an equalizing tax under s. 2, c. 43, Laws 1885. Upon an appraisal made by referees appointed by the court on agreement of the parties, the property of district No. 3 is found to be worth $4,493.75. This property includes a school-house built in 1885 at an expense of about $4,600. The debt of the district is about $4,200, a part of which is payable in instalments at different times from 1886 to 1890.

Foreign Attachment of money, goods, chattels, rights, and credits of the defendants in the possession of Twiss & Pierce. When the writ was served on the trustees, an action was pending in this court, in Cheshire county, in favor of this defendant Adams, against one Stuart.

Covenant, upon an agreement under seal for the use of a certain play, and the services of the plaintiff Norris and his wife in acting in it. Facts found by the court. The defendant Atkinson pleaded his discharge under the insolvency laws of Massachusetts. The first publication of the notice of the warrant in the insolvency proceedings was March 22,1883.

Writ of Error, bringing before the court the petition of Wm. H. Renaud to be substituted as plaintiff in the suit Isaac Q. Wilbur v. Edward A. Abbot, and the record therein. The errors assigned are, (1) That Renaud was substituted as plaintiff at a term subsequent to the time when final judgment was rendered in the cause, and without notice to the plaintiff in error.

<p>In trespass qu. cl. for felling the defendant’s trees across the line fence, and covering the plaintiff’s land with brush, the measure of damages is not necessarily the expense of removing the brush, nor are they necessarily limited to the value of the land covered by it.</p>

Case, for obstructing a way appurtenant to the plaintiff’s land over land of the defendant. Trial by the court, who found a verdict for the plaintiff for the damages for obstructing a portion of the way as claimed.

Writ of Entry. Facts found by a referee. Held: in an action of trespass to land, that the husband should not be joined, giving as the second reason therefor, “ because, in a case of that kind, the husband has no interest whatever in the suit, and hence should not be joined as a party to it any more than any stranger.” Husband and wife may contract together, the common law in this…

Assumpsit, to recover 150 deposited by the plaintiff with a stakeholder, about November 1, 1884, upon a wager with the defendant as to the result of the coming presidential election. The defendant won the bet, and the stakeholder thereupon paid over the money to him. Facts agreed.

Bill in Equity, for leave to sell certain lands. The parties agree that the lands were devised by Nathan Holt (of whose estate the plaintiff is now administrator) to Mabel Holt, one of the defendants, if she lives to the age of twenty-one years, but if she dies before arriving at that age, then to the other defendants ; that they are rapidly depreciating in value, and by the time Mabel — now nine years old — reaches the age of twenty-one, will be of comparatively little…

Case, for slander. Tlie writ commanded tlie sheriff to attach the goods or estate of the defendant, and summon him. No attachment was made. The officer’s return is, that he summoned the defendant by giving him a true attested copy of the writ. The defendant moved to quash on the ground that there could be no legal service without an attachment.

Trover, for a horse and harness. The plaintiff’s evidence tended to prove that the defendant, a minor, hired the plaintiff’s horse, wagon, and harness to carry a woman from Swanzey to a certain house in Keene, and then to return directly back to Swanzey without stopping; that he carried tbe woman to the place named, drove thence on the direct route towards Swanzey to a stable, where he waited half an hour for a friend, upon whose arrival he ordered the horse to be fed, and…

Bill in Equity, to annul a deed of land and a transfer of bank stock. March 2, 1885, the plaintiff, a citizen of this state, attached the land and stock, and, subsequently having obtained a judgment, levied upon them as the property of A. S. Watkins.

CuAlM, for aid furnished a county pauper, referred by the parties to the court for decision, upon Gen. Laws, c. 25, s. 10. Facts agreed.

Trover, for twelve tons of hay; tried by the court. The court found for the plaintiff, and the defendant excepted. The evidence of conversion consisted in (1) forbidding the sale by the officer at the time and place first appointed; (2) and on two or three occasions, after the execution sale, notifying the plaintiff that he must not remove the hay, and claiming that he, the defendant, bought the hay of the plaintiff with the farm.

Bill in Equity, for an injunction against the collection of a school-district tax, and against the building of a school-house on a lot selected by a school committee, and for a decree requiring the house to be built on another lot selected by the county commissioners. Facts found by the court.

Assumpsit, for use and occupation. Pleas, the general issue and statute of limitations. The writ is dated August 15, 1882. January 30, 1824, the plaintiffs, by an instrument under seal, leased the premises to Barker for the term of 999 years at an annual rent of $36.36. By various conveyances the title to the term came to Douglass, who, October 10, 1867, conveyed the same to the defendant, taking from him a mortgage to secure the payment of the purchase-money.

Petition for abatement of taxes assessed to the plaintiff in 1884. Facts found by a referee. The land described in the petition consisted mainly of woodland, without buildings thereon, and was unimproved land, owned by George W. Atwood, a resident of Wilmot.

Trespass qu. cl. Facts found by a referee. Three actions brought by the plaintiff were tried together. Such of the facts as are given in the opinion of the court are omitted here. The premises described in the declaration were situated in Bath, on the easterly side of the eastern branch of the Ammonoosue river, south of the bridge and north of the pulp-mill now occupied by the defendants.

Assumpsit, on a policy of insurance. Writ dated November 13, 1877. Pleas, tlie general issue, the statute of limitations, and accord and satisfaction. On a special verdict, each party moved for judgment.

Assumpsit, on a policy of insurance upon the plaintiff’s two-story frame dwelling-house, barn, and shed attached. The property was burned December 20, 1876.

Appeal, from a proforma decree of the judge of probate, charging the appellant with the amount of two notes signed by Orissa J. Pillsbury, two notes signed by L. D. Kelly, and one note signed by Anson R. Marston, all payable to his intestate, Mercy Marston. Facts found by a referee.

<p>Writ oe Entry, to foreclose a mortgage upon land in Grafton. Facts found by the court. The defence was title in the defendant by collectors’ deeds of the land upon sales for the taxes of 1879 and 1880.</p>

by giving them m hand an attested copy of the bill and order of notice thereon in compliance with the order, but no service was made in this state. The defendants were residents of Massachusetts. The defendants appeared specially, and moved to dismiss for want of legal service. Motion denied, and the defendants excepted.

Trover, for eighty-five cords of wood. Facts found by the court, which need not be stated. The writ commanded the officer to arrest the bodies of the defendants, or to attach their goods or estate; also to attach the money, &c., of Lucas in the hands and possession of Cyrus Taylor. Hayden was arrested, and gave bail. The funds of Lucas in the hands of Taylor were attached. At the return term of the writ the defendants appeared specially, and moved to quash the writ.

Bill in Equity, for an injunction to restrain the further prosecution of an action at law upon the plaintiff’s agreement to indemnify the town of Northumberland against loss on account of releasing an attachment. Facts found by the court.

Petition, against the selectmen of Northwood, for an order upon tliem to assess a tax, for a writ of mandamus, and for general relief. Reported 68 N. H. 820.

Bill in Equity. In 1875, Mary Blasdell of Portsmouth made her will, bequeathing her property in equal shares to the plaintiff, Mrs. Odióme, and the defendants, Mrs. Moulton, Mrs. Henderson, and Mrs. Gerrish.

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

Case, for obstructing and digging up the plaintiff’s way by excavating and carrying away gravel. The city of Portsmouth owned the gravel and sand on the lot over which the plaintiff’s way passed. Subject to exception, the plaintiff was permitted to show acts of surveyors of highways, and of persons acting under their direction, in making excavations in the plaintiff’s way, by taking and carrying away gravel for repairing highways.

Petition for the examination of a railroad and highway crossing. March 25,1886, the city councils of Portsmouth voted that the plaintiffs be required forthwith to protect, guard, and secure said crossing by gates. April 26, an attested copy of the vote was served on the plaintiffs, and May 22 they filed this petition.

Case, for personal injuries from the alleged negligence of the defendants in not properly guarding and securing a turn-table. The plaintiff, who sues by his father and next friend, was seven years old when the accident occurred, June 23, 1877, and the action was commenced June 7, 1884. Plea, the general issue and statute of limitations. A motion for a nonsuit was denied, and the defendants excepted. Verdict for the plaintiff. The facts are sufficiently stated in the opinion.

Assumpsit, for use and occupation from October 1, 1883, to July 1, 1885. Thomas Durrell devised the premises to the plaintiffs, and died May 9, 1883, at the age of eighty-five years. The plaintiffs introduced evidence tending to show that July 1, 1885, the defendant was, and for a year or two had been, in occupation of the premises, and that on that day they demanded rent, which the defendant refused to pay. The defendant moved for a non-suit.

<p>Appeal from a decree of tbe probate court appointing Charles F. Stone and John B. Garland trustees under the will of Isaac Adams, upon the petition of the defendants, beneficiaries of an active trust thereby created, respecting the management of a large amount of property, real and personal, and the distribution of the income to minor children.</p> <p>The trustees named in the will were Anna R. Adams, the testator’s widow, and this appellant, Julius Adams, his son. The widow died without entering upon the duties of the trust. The appellant contested the will in a suit which lasted about two years, and was finally determined in favor of sustaining the will; and he never undertook or offered to perform any of the duties of the trust with respect to the control, care, and management of the trust estate, or the rights of the beneficiaries under the will, up to the filing of this petition. Facts found by the court.</p>

The first action is assumpsit, for a deposit in the defendant bank, made by the plaintiff’s decedent, James Smith, in the name of his daughter, Huldah F. Smith, now Huldah F. Emerson, who appears as defendant in interest, claiming the fund. The second suit is a bill of interpleader to determine to whom the bank shall pay the deposit. Facts found by the court. In 1871 James Smith deposited $450 in the name of his daughter Huldah, and. took a deposit-book in her name.

Writ oe Entry, for one undivided half of two acres of land. Pacts found by the court.

Covenant, on the warranty of a deed made by the defendants to the plaintiffs July 28, 1875.

Biel in Equity, by a district abolished by c. 43, Laws of 1885, for the disposition of $1,652.79 held by the defendants, belonging to the plaintiffs, and not included by the tax assessors in the equalization of the property of abolished districts. Facts agreed.” This proceeding is practically in the nature of a bill of interpleader to determine the title to the money in question, and the right to its possession and use.

<p>Petition nor naturalization. The applicant was born a German subject June 24, 1865, and came to this state when five years of age, where he has ever since resided. He made oath to his application October 29, 1886, having never filed any previous declaration of intention to become a ci fcizen. For the past eight years it has been his intention to become a citizen of the United States. The question was reserved whether he is entitled to be naturalized before arriving at the age of twenty-three years.</p>

Assumpsit, to recover a balance due for the sale of wines and spirituous liquors. Plea, the general issue, with a brief statement that the contract was void under Gen. Laws, c. 109, s. 18. Facts found by the court. The plaintiffs were liquor dealers in Boston, and the defendant a saloon-keeper in Snncook at the time of the sale of the liquors in suit.

Bill in Equity, to enforce specific performance of a contract to transfer to the plaintiff sixty shares of the capital stock of the Abbot-Downing Company, in payment for the pleasure yacht Una. Facts found by a referee.

Bill in Equity, to foreclose a mortgage given to the plaintiff March 29, 1879, by David Gilchrist, then the defendant’s husband, of lands described as follows: “ A tract of land known as the ‘ Mowe lot,’ bounded northerly by the road . . .. westerly by said Shaw farm, southerly by the Webster pasture so-called, easterly by land of George Wilson . . . containing fifty acres more or less.” “ Also one other lot situated in said Franklin, bounded on the north by land of the late…

Petition, for leave to file the statement required by Gen. Laws, c. 75, s. 7, with respect to damage suffered by reason of a defective highway. The hearing was had April 28, 1886, and at its close the presiding justice announced his decision granting the petition, in the presence and hearing of counsel; and on the next day entered with the clerk an order accordingly, whereby leave was granted to file the statement on or before June 1,1886.

<p>A telegraph company is liable for interest at ten per cent, on the amount of the tax finally levied upon them, from December 1 of the year in which it is assessed, although the amount of the original assessment has been reduced on appeal.</p>

Assumpsit. Writ dated May 12, 1882. Plea, the statute of limitations. Facts found by a referee. The plaintiff’s specification was for items of account from 1869 to the date of the writ. The defendant’s set-off was for items of account from 1871 to 1879. Ho accounting or settlement was ever had by the parties after a settlement in 1871; and there was no special application of any item by either side in payment of any item or items on the other side.

Case, for personal injuries, brought within two years of the intestate’s death. Laws 1879, c. 35. Plea, the general issue. At the trial, after the expiration of the two years, the plaintiff was allowed, subject to exception, to amend his declaration. Verdict for the plaintiff, which the defendant moved to set aside on the ground of excessive damages. The motion was denied, and the defendant excepted.

Assumpsit. Plea, the general issue, and the statute of limitation. Replication, a new promise within six years. Pacts agreed.

Foreign Attachment. Issue between the plaintiff and claimant. Facts found by the court. When the writ was served on the trustees, January 27,1885, there was $22.50 due from them to the defendant for his labor during the preceding month.

Bill in Equity, alleging that before February 27, 1885, one Slack made several successive mortgages of certain goods to different persons, among whom was the plaintiff, some of said mortgages being prior to that of the plaintiff; that on the above day the defendant Lord, a deputjr sheriff, attached the mortgaged goods on three writs against Slack, and on March 14, 1885, sold the same in small lots to a great number of different purchasers, for sums amounting in all to…

TRESPASS, for assault and battery. Plea, the general issue, with a brief statement that the defendant acted in self-defence. Verdict for the defendant, which the plaintiff moved to set aside, and for a new trial, “because upon the uncontradicted evidence the defendant made the first assault, and assaulted the plaintiff anew after the plaintiff had ceased to inflict or threaten violence to him, -and had retreated.” Motion denied, and the plaintiff excepted.

Bill in Equity, by tax-payers in Antrim against that town and the Antrim academy, for an injunction to restrain the defendants from carrying into effect certain votes of the town, passed at the annual meeting, 1884, recited in the bill substantially as follows : 1.

<p>The excess only of the par value of national bank stock over the amount of the owner’s interest bearing indebtedness is liable to taxation.</p>

<p>Petition, by Calvin B. Perry and one hundred and fifteen others, citizens and tax-payers of the town of Fitzwilliam, alleging that it was the duty of the selectmen in office March 1, 1886, to appraise the school-house and other property of the several school-districts; that they neglected to perform that duty; that the selectmen elected March 9, 1886, appraised said property at “ more than double its value in cash, whereby the town has been made to assume a burden which by law should not be borne, to the great injustice of the tax-payers,” — and praying the court to order a new appraisal of said property by the county commissioners or some other legally constituted board, at its actual value, or that the court investigate and determine the value of said property in such manner as may be just and equitable to the tax-payers and citizens of the town, and that such decree be made as will remit to the tax-payers their just proportion, &c. The defendants demurred.</p>

<p>A mutual aid association may waive a condition in their certificate of membership that the same shall be void if any^ untrue answers have been given to questions in the application, although the contract contains an express warranty by the applicant that the answers are true.</p> <p>It will be such a waiver if, with knowledge that the applicant has catarrh and for many years has been subject to a catarrhal cough, they accept the premium and issue a certificate, although the applicant, in answer to direct questions in the application, without intending to misrepresent the facts or deceive the defendants, stated that he had no disease of the throat or lungs, and, to the best of his knowledge and belief, no other disease, when, as he knew, he had catarrh, by which both his throat and lungs were more or less affected and his health impaired.</p> <p>By continuing to receive from the member his annual dues and assessments, with such knowledge, the association are estopped to setup the condition in tlieir certificate, or the warranty of the member as to the truth of his answers, as a defence to an action on the certificate.</p>

Bill in Equity, to restrain the deféndant from obstructing the free and natural flow of surface-water from the plaintiff’s land over and across the defendant’s land. Facts found by a referee.

Assumpsit, upon a promissory note dated February 21, 1870. Writ dated December 15, 1885. Plea, the statute of limitations. Facts found by the court. The note was originally secured by a personal mortgage of the same date; but none of .the mortgaged chattels were in existence at the time the suit was commenced.

Trespass and TROVER, for taking and carrying away three tons of hay. Facts found by the court. The hay in question was cut by servants of the Sullivan County Railroad upon land within the limits of their location where their road crosses the plaintiff’s farm. After it had been cut, and before its removal, the corporation refused to allow the plaintiff to take it, but gave it to the defendant, one of their servants, who carried it away to his own use.

<p>Trespass, for assault and battery. Plea, the general issue, with a brief statement that the defendant was teacher of a public school in which the plaintiff was a scholar, and that the assault and battery complained of was the infliction of reasonable punishment of the plaintiff for disrespectful conduct and violation of the regulations of the school. The evidence tended to show that some of the scholars had a practice of coughing and making noises resembling coughing for the purpose of attracting attention, which disturbed the order and quiet of the school. The defendant requested that the noises be stopped, but the disturbance continued to some extent. At the time of the assault the defendant was repeating the request to the school, when the plaintiff made a noise resembling a cough, which the defendant understood was intended by the plaintiff as an act of contempt and defiance of the teacher’s authority, and thereupon the defendant inflicted the punishment complained of.</p> <p>The plaintiff offered evidence tending to show that a portion of the scholars,'including the plaintiff, were affected with a cough known as chin-cough or whooping-cough, and the plaintiff testified that the coughing for whicli he was punished was involuntary, and not intended as an act of disobedience or of defiance. The plaintiff requested the following instruction: “ If the jury find that the plaintiff could not help coughing by reason of a chin-cough, then the defendant was not justified in punishing the plaintiff, although the defendant believed that the plaintiff coughed for the purpose of defying his authority and disobeying the rules of the school.” The court declined to give this instruction, and the plaintiff excepted.</p> <p>Upon this point the court charged the jury that if the defendant, acting honestly and with reasonable caution and prudence, believed that the act of the plaintiff was intended as an act of disrespect for and contempt of the teacher’s authority, and if he had reasonable cause for believing that the noise made by the plaintiff was intentional and for the purpose of showing his defiance of the reasonable requirements of the defendant in the government of the school, then the defendant was justified in inflicting moderate and reasonable punishment upon the plaintiff.</p> <p>The plaintiff excepted to the foregoing instructions. Verdict for the defendant.</p>

Appeals from the refusal of the selectmen of Orford to abate a tax assessed to each of the plaintiffs in school-district No. 6, for the purpose of building a school-house. Facts found by the court. The appeals -were resisted by other tax-payers in the district.

<p>A vote of a school-district to raise money for the erection of a schoolhouse upon a lot other than the one designated by the county commissioners, upon a proper appeal from the action of the district is unauthorized and void.</p>

Petition, praying that the towns of Plymouth and Holderness be ordered to pay a portion of the expense of rebuilding a bridge and repaying a highway in Campton, and of hereafter keeping the same in repair. The highway in question was laid out by a judgment upon a report of the county commissioners at the May term, 1868. In that report the commissioners estimated the expenses of making said highway at 85,500.

Foreign Attachment. Issue between the plaintiff and the claimant. The trustee wrote upon the back of the plaintiff’s writ and signed an acceptance of service as follows : “ I hereby accept service of this writ and waive all rights to service by copy,” and no other service of the writ was made upon him.

Indictment, under s. 13, e. 262, Gen. Laws, found at the October term, 1883.

Indictment, under Gen. Laws, c. 262, s. 18, charging the defendant with wilfully neglecting the duty of his office as clerk of school-district number one in Errol, in not recording the warrant for the annual meeting of the district, March 29, 1883, in not attending that meeting and keeping a true and attested record of its doings, &c. The defendant demurred.

Assumpsit. Facts found by a referee. September 13, 1884, the plaintiff loaned the defendant his check on the Littleton National Bank for §235, upon the agreement that the defendant should, on the following Wednesday, deposit in said bank the amount of the check to the plaintiff’s credit; and on September 80 loaned him another check of the same description for §225, with a like agreement.

Bill in Equity, by the executor, asking for a construction of tbe. will of Albion W. Bailey. The will, executed May 18, 1885, directs (1) the payment of debts and other funeral charges ; (2) gives a legacy of #25 to a niece; (3) gives a legacy of $25 to a nephew; (4) gives a legacy of $100 to one Batchelder; and disposes of the residue of his personal estate as follows: “Fifth.

Bill in Equity, by the administrator of the estate of Samuel Bartlett, not before administered upon, with the will annexed, asking for a construction of the will. The testator devised to his wife the sole use, improvement, and income of all his real estate of which he should die seized, during her natural life, without impeachment of waste, remainder as follows: “ Third.

Case, for negligently killing the plaintiff's horse on a highway railroad crossing.

<p>Assumpsit, for services as police officer, constable, watchman, and patrolman, from December 1, 1885, to March 1, 1886. Facts • found by the court.</p> <p>In October, 1885, a petition for the “ appointment of additional watchmen to patrol in the business part of the city, while the difficulty of obtaining insurance on stocks of goods and other property continued,” was, by vote of the board of aldermen, “referred to the committee on police with power.” That committee was then composed of O. H. Cook, chairman, and two others. Soon afterwards Cook, without consulting the other members of the committee, asked the plaintiff if he would like the place of fire patrol. The plaintiff said he would; and Cook told him to go on duty, which he did. The other members of the committee afterwards learned of Cook’s action, and did not object.</p> <p>The matter of the appointment of Quinn was never brought before the common council of the city, nor was any ordinance passed relating in any way to the matter. November 27, the mayor, with the assent of the majority of the committee on police, notified the city marshal to order the plaintiff to cease doing duty on and after December 1, 1885, as there was no longer need of his services, and on the same day the city marshal notified the plaintiff accordingly. The plaintiff, notwithstanding the order, continued to do regular duty until January 1, 1886, but performed no services after that time. He was paid for his services to December 1, 1885. February 4, 1886, in board of mayor and aldermen, the bill of the plaintiff, for services in December, was ordered paid by a vote of four to three. The mayor refused to approve the bill.</p> <p>It was admitted that there has been no vote of the aldermen discharging the plaintiff, and that the matter of the payment of the plaintiff’s bill was never before the common council.</p> <p>The plaintiff claimed that he was never legally discharged, and that he was entitled to pay up to March 1, 1886. The defendants moved for a nonsuit, which motion was denied, and the defendants excepted.</p>

<p>Bill in Equity, asking the court to declare whether by the following clause in the will of Ira Noyes, the executor, Gilman Greenough is a legatee, taking equally with the other persons mentioned in the same clause:</p> <p>“ I give and bequeith unto the following persons the remainder of my propity, real estate and personaly to be devided equally between the following persons: Mary J. Bartlett, wife of A. B. Bai’tlett of Plaistow</p> <p>Emma M. Cass, wife of C. W. Cass, of Plaistow The four children of Sister Cogswells of Gilmanton The four children of Sister</p> <p>Moulton of Plainfield</p> <p>Ira O. Sawyer, of Haverhill Mass</p> <p>Marcus, M. Sawyer, of Boston Mass.</p> <p>Gilman Greenough, whom I hereby appoint sole executor of this my last will and testament hereby revoking all former wills maid by me”</p>

Bill in Equity, by the executor asking for a construction of the will of Sarah Clark. The eighth clause of the will is as follows : “ I give and devise the remainder of my estate real personal and mixed iu equal shares to my nieces and nephews and to the nieces and nephews of my former husband John Carr.” William Carr, a nephew, and Clarissa Coggswell, a niece of John Carr’s, died prior to the execution of the will, leaving issue.

<p>Petition for-partition.' John Quinn died leaving six surviving children, viz., Bridget, the plaintiff, Margaret, one of the defendants, Kate Tolmay, Joseph Quinn, John Quinn, Jr., and Mary Ann McKenney. By the sixth item of his will he devised to John Quinn, Jr., the land sought to be divided, “ to have and to hold to him his heirs and assigns forever.” The seventh item is as follows : “ In case of the decease of any one of my said children without issue living at the time of such decease, the devise or bequest given to such child I give and bequeath in equal shares to the surviving brothers or sisters of said deceased.”</p> <p>Kate Tolmay died in 1885, and the defendant Thomas is her minor child. John Quinn, Jr., died in 1886, never having had issue. Since his death Joseph Quinn and Mary Ann McKenney have died. The defendants John W. and Joseph are minor children of the former, Ellen and Josephine of the latter. The land has been sold by order of court, and the question is upon the division of the avails.</p>

Assumpsit. The referee found for the defendant. On motion of the plaintiff, the cause was recommitted to the referee with in-, structions to report the facts without further hearing. Upon the return of the report the plaintiff was allowed to amend by filing a count in trover, and the case was reserved. At the June law term, 1886, the ruling permitting the amendment was sustained, and judgment ordered for the plaintiff on the amended count.

Debt, on a prison bond. Facts found by the court. February 17, 1886, Piper applied to two justices to take the poor debtors’ oath. The justices issued an order of notice by which the plaintiff was required to appear “at the office of E. P. Thompson, in Laconia, on the 12th day of March, 1886, to show cause, etc.,” which was duly served.

<p>Rights in a reservoir of water are real estate, and taxable in the town where the land by which the reservoir is created is situated.</p> <p>Upon the question of the value of such rights, evidence that they may be exercised for the benefit of mills situated in other towns or in another state is competent.</p>

Writ of Error, dated January 27, 1887, to reverse (as set forth in the assignment of errors) “ a corrected judgment of the supreme court within and for the county of Carroll, made as of record January 30, 1884, in registry of deeds office, wherein the said Conway Savings Bank is plaintiff and said Benjamin Bean is defendant.” The errors assigned are: (1) “No motion was made to abate original judgment, as required by s. 8, c. 226 of statute aforesaid. [Gen. Laws.] ” (2) “That…

Bill in Equity, to set aside a mortgage of certain land made by Israel H. Gilman to his wife, Mary E. Gilman, in June, 1885, to secure a promissory note from him to her for $2,225. Facts found by the court. The plaintiffs are creditors of I. H. Gilman, and in July, 1885, caused the mortgaged premises to be attached on a writ against him, and now seek to hold the same discharged of the mortgage for the satisfaction of their debt.

Bill in Equity, by the executor of the will of Josiah Thurs-ton, for direction as to certain clauses of the will.

Bill in Equity, to foreclose a mortgage given by Simon Greely, one of the defendants, to the plaintiff, April 3, 1867, to secure a note for $59.55, dated January 1, 1861. Facts agreed. Some time prior to February 24, 1846, Insley Greely, of Wilmot, died, leaving a widow, Dolly Greely, and eight children, of whom Simon Greely was one, and the defendant Sarah Sargent was one.

<p>The possession of a mortgagor is analogous to that of a tenant at will or at sufferance. By bringing a suit to foreclose the mortgage, the mortgagee may elect to treat that possession as a disseizin.</p>

Case, for damages for injuries from a defective highway. Verdict for the defendants. At the time of the injury the plaintiff was riding with Dearborn, her brother-in-law, in his carriage, which he was driving. The plaintiff requested the court to instruct the jury that the negligence of Dearborn, the driver, could not affect the plaintiff’s right to recover, unless he was her agent, and either under her control, or controlled her personal conduct.

<p>A written instrument will be reformed in equity when it fails to express the intention which the parties had in making the contract which it purports to contain.</p> <p>. Notice to the trustee and acceptance by him are not essential to the validity of a voluntary trust as against the settler.</p> <p>A trust once perfectly established is irrevocable except with the consent of all the beneficiaries.</p>

<p>1. Indictment, for unlawfully keeping for sale ten gallons of spirituous liquor. The indictment was found at the April term, 1887, and the caption is as follows :</p> <p>“State of New Hampshire.</p> <p>“Merrimack ss. At the Súfreme Court holden at Concord within and for the county of Merrimack aforesaid, on the first Tuesday of April, in the year of our Lord one thousand eight hundred and eighty</p> <p>“The Grand Jurors of the state of New Hampshire upon their oa.th present,” áse.</p> <p>The defendant moved to quash. The motion was denied, and leave to amend, by inserting the word “seven” after the word “eighty” in the caption of the indictment was granted, and the defendant excepted.</p> <p>2. A second indictment charged that the defendant, not being an agent of any town, place, or city for the purpose of selling spirit, with force and arms did then and there unlawfully, knowingly, and criminally keep for sale a large quantity of malt liquor-known as ale, to wit, ten gallons of ale.</p> <p>The defendant moved to quash the indictment because it does not sufficiently inform the defendant of the offence with which he is charged, and does not identify the offence so as to protect him from a subsequent prosecution for the same offence, or enable the court to render a proper judgment upon it.</p>

Action, upon the statute of landlord and tenant. The defendant occupied the plaintiff’s store as a tenant at will. The rent for each month was payable on the first day,of the next month. January 29, 1887, the plaintiff gave the defendant a notice to quit March 1,1887. The defendant objected that the notice was insufficient because it required him to quit on the first day of the month, and contended that it should have required him to quit on the last day of the month.

Bill in Equity, for an injunction to restrain the defendant from proceeding further with the work of raising and enlarging a building in Manchester, in violation of the following ordinance of the city: “No person shall ei-ect, or cause to be erected, any building exceeding ten feet in height, nor shall any building now or hereafter erected be raised or enlarged, unless the walls of the same shall be built of iron, brick, or stone, with the roof of slate, iron, or other…

Replevin, for a’'silk thread cabinet case, alleged in the writ to be of the value of fifteen dollars. The plaintiffs’ evidence showed that the cabinet was worth twelve dollars. The defendant moved that the action be dismissed for want of jurisdiction. Motion denied, and the defendant excepted.

<p>To a writ of entry to foreclose a mortgage the defendant pleaded a former judgment upon the same mortgage, and payment of the amount thereupon adjudged to bo due. Replication, that one of the mortgage notes then due was not included in the judgment. Rejoinder, that the amount of the former judgment was the sum adjudged to be due on all the notes secured by the mortgage. The plaintiff having demurred to the rejoinder, the demurrer was overruled.</p>

Petition, for a writ of habeas corpus, alleging that Joseph E. Wood, of Hudson, is illegally imprisoned and detained in the county jail, by David Wadsworth, the jailer.

Petition, that a reasonable sum be fixed by the court as bail in each of two suits at law whereupon the defendant was arrested, and having been surrendered by his original bail, is now detained in jail. Facts found by the court.

<p>Writ of Entry, on a mortgage of lands in Rindge, dated March 81, 1881, to secure notes of that date amounting to $5,000. Facts agreed. On the same day a mortgage of certain lands in Massachusetts was given to secure the same notes. The mortgagor, a resident and citizen of Massachusetts, was declared insolvent under the laws of that state, and his assignees, on the 24th of June, 1884, sold at auction his equity of redemption to the plaintiff, who bid off the same for a nominal sum, because he believed that to be the least expensive way of foreclosing his mortgage. The value of the mortgaged property in Massachusetts was much less than the amount due on the mortgage debt at that time, and the plaintiff now seeks to apply the demanded real estate to the payment of the amount still due.</p> <p>The defendant contends that the plaintiff is estopped from maintaining this suit by bidding off the equity of redemption in Massachusetts. Prior to the assignees’ sale, the defendant attached the demanded premises on a claim against the mortgagor which arose after the mortgage; and having obtained judgment, duly levied his execution thereon. The plaintiff knew of the attachment and the commencement of the levy before he purchased the equity of redemption.</p> <p>By the Massachusetts statute the mortgagee had the right to have the value of his security determined by a sale of the property, the proceeds of the sale applied to his debt, and then prove the balance of his claim; or to release his mortgage to the assignees and then prove the whole of his claim. “ If the property is not so sold, ■or released and delivered up, the creditor shall not be allowed to prove any part of his debt.” The assignees had the right, also, if they considered the property of greater value than the debt, to sell the equity of redemption for the benefit of the estate without request from the mortgagee. The fact that they offer it for sale is proof that they consider the property of greater value than the mortgage, otherwise it would be idle to go through the form of a sale. In re Lambert, 2 Nat. Bank. Reg. 426; In re Bowie, 1 Nat. Bank. Reg. 628. The proceeds of such sale are held “to be the price or value of the interest so sold, and with a knowledge of the incumbrances.” In re Mebane, 8 Nat. Bank. Reg. 847 ; In re McClellan, 1 Nat. Bank. Reg. 389; Second N. Bank v. N. State Bank, 11 Nat. Bank Reg. 49.</p> <p>The mortgagee did not avail himself of the provision of the statute to have the value of his security determined; and after thus acquiescing in the position taken by the assignees, he ratified it by purchasing the equity at auction, paying a consideration therefor, and taking a deed from them. By the statute above quoted he was barred from proving his claim against the insolvent, and, after purchasing the equity without any understanding with the assignee or the insolvent that he was purchasing for any other purpose than to become the sole owner of the property, he placed himself in such a position that, had the insolvent failed to procure a discharge, he could not have enforced his claim against him or his representatives. And we submit that when the holder of a note has, by his acts, placed himself in such a position toward the maker that he cannot exact payment of him or his representatives, he cannot afterwards set up non-payment of the same note against the rights of others. The plaintiff could have taken no action upon his note after the maker went into insolvency, until he had brought himself within the provisions of the statute. Lanckton v. Wolcott, 6 Met. 305. This he elected not to do, and having taken a different course, must abide by the results of his action.</p> <p>The plaintiff has fixed and determined the value of the mortgaged property. The assignees offered for sale at auction a definite estate subject to a definite claim, and asked for bids for the right to redeem from that claim. The plaintiff unconditionally, and without stating that his bid was different in purpose or nature from any other bid made, purchased this right to redeem, paid a consideration, and took a deed. By so doing he recognized and established the fact that the property was worth something more than the claim, and is now estopped to deny it. We fail to distinguish any difference in principle between this case and one where two chattels are pledged to secure the same debt, and the pledgee, resorting to a sale of the chattels to realize upon his claim, at auction buys one of the chattels, bidding therefor a nominal sum above his claim. The other chattel must necessarily be released from the pledge, and the debt'held in law to be paid. If this other chattel had been attached subject to the pledge before the sale, and after-wards levied upon, the pledgee would not be allowed to say that he had paid too much for the first chattel at the sale, and ought still to have his lien for a balance upon the second chattel.</p> <p>By purchasing the equity and taking the deed the two estates became merged in Clark, and the debt became extinguished. Norria v. Morrison, 45 N. H. 499. There is no evidence that he purchased with any other intention than to merge them, and had he any other intention, it cannot affect the rights of other parties unless such intention was expressed and understood by all parties to the transaction.</p>

Case, for diverting the water of Newfound river in Bristol from the plaintiffs’ grist-mill. Facts found by the court. The plaintiffs’ water-privilege is furnished by a wing dam extending from near the westerly end of their mill diagonally, two thirds the distance across the river, where it unites with the main dam above, from the overflow of which the wing dam is supplied with water.

Trespass de bonis. Writs dated March 2, 1885. January 24,1885, the defendant, a deputy sheriff, attached the goods as the property of Dennis Phillips upon several writs sued out against him by his creditors. The plaintiffs claim under two mortgages of the same goods, made and executed by said Dennis, January 22, 1885, — one to Phillips & Clark, and the other to Barrett.

Bill in Equity, by the executor of the last will of John San-born, asking direction as to the payment of certain legacies, where the legatees died in the lifetime of the testator.

<p>It is within the constitutional power of the legislature to prohibit the sale of milk which contains more than a specified per cent, of watery fluid, or less than a specified per cent, of milk solids.</p> <p>Evidence that pure milk frequently does not come up to the standard fixed by the' legislature is not admissible for the defendant, on the trial of an indictment under the statute for selling adulterated milk.</p>

Assumpsit, on a policy of insurance issued by the defendants on the property of Hall, and made payable in case of loss to Woodman, mortgagee, as her interest might appear. After the property was destroyed by fire, the defendants, by agreement with Hall, without the knowledge, consent, or authority of Woodman, referred the question of the amount of the loss to referees, who awarded a sum less than the mortgage debt due to Woodman.

In Equity. The bill was inserted in the place of a declaration in a writ of summons and attachment. The officer’s return of service is that he “summoned the within named William Hale, as within, commanded, by this day giving to him an attested copy of this writ and complaint.” The defendant, appearing specially, moves that the bill be dismissed for want of legal service.

Writ oe Entry. Facts agreed by the parties. Timothy Jenkins died in 1830, leaving a will which contained this clause: ,“I also give and bequeath to my son, William A. Jenkins, all my estate, both real and personal, of every description not otherwise disposed of; and if the said William should die leaving no issue, then my will is that it should go to the next surviving brother.” The defendant is the widow of William A. Jenkins, who died in June, 1886, never having had issue…

Assumpsit, on the following promissory note: 1900.00. Rochester, N. H., April 1, 1877. Six months after date, for value received, we jointly and severally promise to pay the Rochester Savings Bank nine hundred dollars. All the signers agree to be holden should the time of payment be extended. S. S. Chick & Co. John S. Haines. John B. Clark. Clark only defends, pleading the general issue with a brief statement of the statute of limitations.

Bill in Equity. Facts found by the court. In October, 1882, one Wallace was appointed administrator on the estate of James Drummond, late of Dover, and acted as such until his removal by the probate court in October, 1885, when the defendant was appointed 'administrator de bonis non. Wallace settled his administration account, and there is now in the hands of the defendant about $800.

Case. The plaintiff testified that November 3, 1881, he was driving on the highway southerly towards the defendants’ station in Madbury, and when about one hundred rods from it, observed the defendants’ locomotive engine, with a freight-car attached, approaching from the west; that he drove to a point about six rods distant from the railroad crossing at the station, and there stopped, in plain sight of the crossing; that the engine stopped directly on the crossing; that…

<p>If one of two coterminous proprietors of land bounded on a cove, by filling in makes new land extending into the cove opposite the premises of both, the same rule may be applied in dividing the new-made land between them as is used in the division of alluvion formed by the natural action of the water.</p>

<p>Case, for injury on a highway. Verdict for the defendants. The jury had a view.</p> <p>The plaintiff claims that she was injured in the night-time of September 27,1885, by being precipitated, with her horse and carriage, over a bank which was not, but ought to have been, protected by a railing. She offered to show by one witness that he drove over the same bank in the night, four or five years before, and injured his wagon; and by another, that he drove off the bank in the night at the same place, in November, 1885. There was no dispute in respect to the condition of the highway at the time of the plaintiff’s accident. The plaintiff conceded that at the time of her accident, and at the time of each accident which she offered to prove, it was in the same condition as when the jury took the view.</p> <p>The court excluded the evidence, and the plaintiff excepted.</p>

<p>Bill in Equity. Facts found by the court. February 8,1886, the plaintiff sold to the defendant Lee a lot of pine timber in the town of Moultonborough, with an agreement that the same should remain his property until it was fully paid for. The whole bargain was put in writing, and was recorded in the office of the town clerk of Moultonborough, May 28, 1886. But no affidavit such as is prescribed by s. 2, c. 30, Laws of 1885, was made or subscribed to the writing. About May 28, 1886, on the application of certain creditors of Lee, the defendant Wiggin was appointed by the probate court messenger, under the insolvency act of 1885; and in that capacity Wiggin took possession of the timber in question, and claims to hold it as part of the estate of the insolvent. The plaintiff claims it by virtue of the above contract.</p>

Replevin, for a carriage and harness. One Durgin brought an action against the plaintiff before a justice of the peace whose father was a cousin of the father of Durgin’s wife. Fowler appeared and filed with the justice a written objection to his jurisdiction, on the ground of bis relationship to Durgin. The justice overruled the objection, and .rendered judgment in favor of Durgin, from which no appeal was taken.

Assumpsit. Plea, the statute of limitations. Replication that the defendant has been absent from and residing out of the state, and has not been in the state six years from the time the cause of action accrued to the date of the writ, January 16, 1886. Facts found by the court. The cause of action accrued November 19, 1879. I’he defendant then resided in Ossipee with his wife and child. In 1879, 1880, 1881, and 1886 he was assessed in Ossipee for a poll tax.

<p>Whether the place where damage was received on a highway is sufficiently described in a statement filed in compliance with the statute, is ordinarily a question for the court; whether the damage was received at the place described, is for the jury.</p> <p>The requirement of the statute, as to description of the injury, is answered by such a reasonably complete and comprehensive account of its nature and extent as a person of ordinary intelligence is capable of giving, and naturally would give, to his neighbor whom he desired fully to inform in what part of his person and how badly he was hurt.</p> <p>Whether the injury is sufficiently described in the statement is a question for the court, to be determined as a question of fact, and will not ordinarily be considered at the law term.</p>

Debt, for a penalty, under Gen. Laws, c. 147, s. 13. The ■defendant, a citizen of Massachusetts, took the proper steps to remove the case to the circuit court of the United States, under the act of March 3, 1875; and the question arose whether the case is a suit of a civil nature within the meaning of that act.

<p>In a prosecution for a second offence, the defendant’s conviction of a previous offence is equally conclusive whether his plea, in the previous case, was guilty, not guilty, or nolo contendere.</p>

Probate Appeal from a decree of distribution, made December 14, 1886, upon the estate of Oliver H. Lord, who died intestate and solvent, May 13, 1883. The defendant, one of his daughters, had received an advancement of §>9,000. To the plaintiff, another daughter, no advancement had been made.

Replevin of a horse, harness, sleigh, and robes. The defendant pleaded that he was collector of taxes of the town of Boscawen for the year 1877, and that he took the property as a distress for unpaid taxes assessed against the plaintiff' for that year in the town of Boscawen, where the plaintiff has all the time resided. The defendant took the property within the limits of ward number one in Concord, and he claimed that the taking was authorized by c. 8, s. 2, Laws of 1879.

Replevin of a horse. Facts found by the court. In August, ’ 1885, the plaintiff delivered a horse to the defendant, upon the agreement that the defendant would purchase him at the price of seventy-five dollars, to be paid in three payments of twenty-five dollars each, to be made in December, 1885, and March and June, 1886, and upon the condition that the horse was to remain the property of the plaintiff until paid for.

Indictment, for the illegal keeping for sale of lager beer on the 27th day of April, 1887, with a second count alleging a former conviction of a like offence on the 5th day of July, 1882, in the police court of Concord, upon a complaint to which the defendant there pleaded guilty.

<p>A town has possession of the volumes of New Hampshire Reports, statutes, Pamphlet Laws, and other books and documents by law distributed to the several towns, for the use of its inhabitants, and to enable them and its officers to become informed of the laws and official business of the state, and cannot lawfully make any disposition or use of the books inconsistent with that object.</p>

Bill in Equity. Facts agreed. August 18, 1843, Jesse M. Sargent and Betsey Collins, in contemplation of marriage, made and executed the following deed, which was duly recorded: “ This indenture… Held: in Jenkins v, Hemishe, Ilardres 895, at a time when such agreements were mostcominon, that “ the consideration of marriage and of the marriage portion will run to all the estates raised by the settlement.” In this view of the case, also, we think the plaintiffs should prevail.

Probate Appeal, from a decree of distribution of the personal estate of Abby P. Brown, deceased, intestate. The heirs at law of the intestate are eleven nephews and nieces and one grandniece. They are the descendants of five brothers and sisters of the intestate, all deceased. One of the appellants is the only child of a brother of the deceased, and the other the only child of a sister.

Trover, for a horse. Facts found by the court. The horse was taken by the defendant, a deputy sheriff, on a writ of attachment against the plaintiff, and sold. It was required for actual use by the plaintiff in his business of selling goods by sample, as a commercial traveller, although it had never been so used, and was but four years old. The court held that the animal was éxempt, from attachment, and the defendant excepted.

The first case is a bill in equity against Henry A. Cuttei*, executor of the will of Mary R. Munroe, the Nashua Iron & Steel Company, the Nashua Lock Company, the Nashua Savings Bank, the Underhill Edge Tool Company, Eliza A. Munroe, and Franklin O. Munroe. The.second is an appeal by Henry A. Cutter, executor, as above, from the allowance by the judge of probate, of the appellee’s claim against the estate of Franklin Mun-roe, deceased.

<p>The fact of death by drowning is sufficient, without other evidence, to sustain a finding by the jury that the deceased suffered pain.</p> <p>The testimony of jurors is not admissible to impeach their verdict.</p> <p>The question of misconduct on the part of the jury is one of fact for the trial term.</p>

Trover, for apples grown on land of the defendant, which, under a parol agreement between the parties, was used by the plaintiff for pasturing his cattle for five years from the spring of 1881. Verdict for the plaintiff. It was in dispute whether the agreement was a leasing of the land for pasturage, or an undertaking to pasture the plaintiff’s cattle there for a stipulated yearly price.

Information, in the nature of a quo warranto, filed by the attorney-general at the relation of Alonzo Wood and two others.

<p>¡Section 7 of chapter 183 of the General Statutes, relating to the rights of a widow in the estate of her deceased husband, was not repealed bj' chapter 41 of the Acts of 1872.</p>

<p>Assumpsit, for medical attendance on the defendant’s husband. Facts found by the court. December 14,1882, the plaintiffs, practising physicians, were called by the defendant to visit her husband. He had no property, his recovery was regarded as improbable, and the plaintiffs were reluctant to attend him. The defendant urged them to do so, saying that her husband’s life was insured for her benefit, and that she would employ and pay them. At that time the defendant had no estate in her own right. Relying upon the defendant’s promise, the plaintiffs attended her husband professionally until his death. The defendant has received the insurance on her husband’s life.</p>

<p>Foreign Attachment. Issue between the plaintiff and' the claimant. Facts found by the court. December 7, 1885, the defendant, by his deed'of that date, in consideration of his then indebtedness to the claimant, and in further consideration “ that the said Childs shall furnish and pay for my and my child’s board, and pay as much as possible towards whatever other claims may be held against me by other parties,” assigned to Childs the wages then due and to become due to him from the trustee for the term of ’ six months. The assignment also contained the following: “ And it is furthermore agreed between us that whatever sum over and above the amount she will have expended shall remain in her hands at the expiration of the aforesaid six months, she, the said Childs, will return to me.” The writ was served on the trustee February 4, 1886. At the date of the assignment the defendant was indebted to Mrs. Childs in the sum of $21.50. She took the assignment to secure her for that indebtedness, and for his board and that of his child during the next six months. She hired him and his child boarded with one Kent, to whom she paid $64.00. She has received of the trustee under the assignment $46.70. The defendant is still indebted to her in a greater amount than the sum due to him from the trustee. She had no purpose to hinder or delay the defendant’s creditors, and there was no fraud in fact.</p> <p>The instrument under which this assignee claims is fraudulent as to the plaintiff. (1) It is expressly declared to be upon a consideration not then in existence, but expected to arise in the future, namely, pay for the future board of the defendant and his child. (2) It provides on its face for the “ return to me ” of whatever may be left in her hands at the expiration of six months. This is a clear provision for putting his wages to be earned beyond the reach of his creditors, and securing the return of them ultimately to himself. The case of Bunnells v. Bosquet, 60 N. H. 38, applies.</p>

Assumpsit, to recover $500 in lieu of a homestead right. Facts found by the court. October 31, 1884, the defendant, a deputy sheriff, having in his hands executions against the plaintiff and her husband, recovered in suits wherein their equity of redemption in their homestead place in Littleton had been attached, commenced a levy of the same, and notified the Halls that the equity would be sold Dec. 1, 1884.

Motion, by the defendant Pike, in Perham v. The .Haverhill Fibre Co. & a., 64 N. H. 2, that the plaintiff pay him the amount of the tax and expense of sale, which he paid as the consideration of the collector’s deed to him.

<p>A tenant at will, from month to month, cannot, without an agreement to that effect, apply a balance due him from the landlord for board to the payment of rent in advance, so as to extend his right of occupancy beyond the month.</p>

<p>Tho words “ to a tree on the bank of a river, thence up said river,” etc , in the description of land conveyed by deed, locate the line at the thread of the stream; and that location is not changed by other words in the same description giving the length of lines and quantity of land conveyed.</p>

Appeal, from the assessment of the plaintiffs’ tax of 1881. The sum of $2,331.10 was abated, which the plaintiffs asked to have applied upon the balance of $4,255.68 due to the state upon their tax of 1880.

Indictment, under Gen. Laws, c. 109, s. 13, for keeping spirituous liquor for sale, with an averment that the defendant “has previously been convicted of a violation of section 13 of chapter 109 of the General Laws in relation to the keeping for sale of spirituous liquor.” The question was reserved whether the indictment sufficiently describes a “ subsequent offence.” Other questions raised in this case were decided in State v. Fagan and State v. Adams, ante, 431, 440.

Trover, for several articles of household furniture delivered by the plaintiffs to one Barrett, upon a contract in writing which recited that Barrett had hired the goods of the plaintiffs, and was to pay them $10 per month until a price fixed upon each article, amounting in the whole to $29, was paid, when they were to become the absolute property of Barrett; and that, in case of failure to pay the stipulated rent, Barrett should return the same to the plaintiffs on demand.

Bilk in Equity, for the specific performance of the following contract: “Receipt for distributive share in my wife’s estate: “ Ep'ping, N. H., Sept. 19, 1883. “ Received of my wife, Sarah Eaton, five hundred and fifty dollars in full for a certain note given by her by date, April 6, 1.883, for $800.00, and in full for all claim I may have vs. her estate, to any of the pension money she now has, and it is understood that this receipt is given in full settlement of any claim…

<p>Overseers of the poor are not required to remove a county pauper to the county poor-farm when so directed by the county commissioners, if the removal would endanger the life or health of the pauper.</p>

Case (1), for obstructing a navigable creek to the special damage of the plaintiffs; (2) for obstructing the plaintiffs’ private way; (3) for not maintaining farm-crossings in suitable repair.

Writ oe Entry, to foreclose a mortgage of land in Seabrook. Pacts found by the court. By the last will of Daniel Ingalls, the note and mortgage in suit were given to the plaintiff. That will was proved and allowed in Essex county, Massachusetts, and Nathaniel Ingalls appointed executor. After his appointment, Feb. 3, 1882, Nathaniel Ingalls, by writing under his hand and seal, assigned and delivered the note and mortgage to the plaintiff.

Assumpsit, on a promissory note signed by H. D. Bermethan, payable to the order of Alice L. Prescott, and by her and the other defendants indorsed to the plaintiff.

Bill in Equity, brought by the administrator, widow, and children of Manuel P. Silva and by Barney McCone against William M. Courser and John A. Smith, praying (1) that Smith be required to join in a deed given May 17, 1867, by his wife Mary E. Smith to John L. Laskey; (2) that Courser be enjoined from setting up title to the premises under a deed from Smith to him dated January 5, 1887, and that the deed be declared void; (3) that Courser be required to surrender the…

Indictment, for selling and putting up lightning-rods in Dover without a license, in violation of Gen. Laws, c. 119, and Laws of 1879, c. 34. The defendant is set up in the indictment as of South Berwick in the state of Maine. The defendant demurred.

Writ ok Entry, for land in Sanbornton. Facts agreed upon by the parties for the opinion of the court. Joseph G. March died in 1854, leaving a will by which he gave to Mary S. Clough, her heirs and assigns, the demanded premises “ if she should have living issue, if she should have no issue then to have the use and occupation of said premises during her natural life,” remainder over. Mary S. Clough had one daughter, born in 1851, who died without issue in 1874.

Trover, for two hundred spruce logs. The defendant was defaulted, with the right to be heard as to the assessment of damages. Facts found by the court. The parties own adjoining timber lots in Moultonborough.

Appeals from the assessment of the plaintiffs’ tax of 1884, 1885, and 1886. The first case is the same as that reported in 64 N. H. 387. April 15, 1885, the parties agreed in writing that the plaintiffs would waive all notice of sale, and sale of their real estate in . .

Bill OB’ Interpleader, by a mutual benefit association, to determine to whom a benefit of $2,000 accruing on the death of Frank P. Watson, a member of the association, should be paid, and particularly whether Mrs. May Lamprey, one of the defendants, is entitled to receive $250, part of the $2,000.

Trespass qu. cl., for crossing the plaintiff’s field. Plea, the general issue, with a brief statement of a right of way. Facts found by the court. The defendant owns farm No. 1, and the plaintiff owns farm No. 2, adjoining No. 1 on the east. The northern boundary of both is a highway.

Libel eor Divorce, filed March 29, 1888, alleging extreme cruelty as the ground of divorce. June 10, 1868, the parties, having their domicile in Canada, were married at Newport, Vt. They lived together as husband and wife until October, 1886, having their domicile in Canada from the time of their marriage, except about the year 1881, when they lived for one year in Vermont. The libellee treated his wife with extreme cruelty, for which reason she left him in October, 1886.

Trover, for a horse. Trial by jury. The plaintiff and his father and brother testified in reference to important matters of fact which were in dispute between the parties.

<p>On the trial of an indictment for the illegal sale of liquor to A, evidence of sales to B and C within a year before the first day of the term at which the indictment was found is admissible, as tending to show that the defendant was engaged in the business of selling liquor.</p> <p>Evidence that D was found intoxicated on the defendant’s premises within the same period is admissible for the same purpose.</p>

Bill in Equity, by the executor of Charles C. Drake, asking direction from the court as to his duty under the following clause in the will: “ I give and bequeath unto Frank Hurd and family, jointly, the sum of one thousand dollars.” At the time of Drake’s death the family of Frank Hurd, besides himself, consisted of his wife and one daughter, now about six years old. Since then another daughter has been born, who is now about three months old.

Assumpsit, on a policy of insurance on the plaintiff’s stock of goods contained in a store in Suneook, for one year from March 18, 1886. The property insured was totally destroyed by fire Jan. 11, 1887.

Indictment, lor keeping spirituous liquor for sale. The defendant pleaded not guilty. The evidence was that the defendant is the son and servant of John McGuire, the owner of a saloon in Suncook village, and was employed by him as a bar-tender.

<p>Appeals from the disallowance of claims against the estate of Sylvester Marsh, deceased, by the commissioner of insolvency.</p>

Trespass, qu. cl., for cutting down and carrying away trees growing on the plaintiff’s land in Epsom. Facts found by a referee. The defendants justified under one Steele, who was the owner of two “Home” lots lying adjacent to the plaintiff’s land in the “ Gore,” so-called. The question was as to the true location of the line between the Home lots and the Gore, that being the line between the plaintiff’s land and that of Steele.

Facts found by the court. The committee, without any fraud or corruption, but by mistake, made an unequal division of the estate, and set off to the appellee a portion of much greater value than to the appellant.

Case, for burning the plaintiffs wood, coal, and other personal property, situated on bind adjoining the defendants’ railroad in Pembroke. Verdict for the plaintiff. The wood, coal, and other personal property constituted a part of the plaintiff’s stock in trade, which he sold from day to day to his customers, and replenished from time to time as he had occasion.

Assumpsit, on a promissory note for $115, payable to the plaintiff or order, and signed by the defendant and one Alanson Bond, who was then her husband. Facts found by a referee. Before the making of the note Bond had bargained for a horse at the price of $115, upon which the plaintiff held a mortgage for $102. The defendant had no interest in the trade or in the horse, but was willing to aid her husband in paying for the animal.

Debt, on a New York judgment. Plea, nul tiel record, with a brief statement “ that the said judgment . . . was had and obtained by the fraud and covin, and by the false and fraudulent testimony of the plaintiff, and with the intent to defraud the defendant of the amount of the said judgment.” The plaintiff moved to reject the brief statement. Motion granted, and the defendant excepted.

Indictment, charging that the defendant, on &c., at &c., “with force and arms did falsely make, counterfeit and sign a certain application to the Metropolitan Life Insurance Company, .... for a policy of insurance, to be issued by said company, purporting to be made and signed by one James Jennings, which said false and counterfeit application is as follows, to wit: . . . . with intent to defraud said company, contrary,” &c. The defendant demurred.

The first case is an Indictment, upon chapter 68 of the Laws of 1885, for selling oleomargarine, an article made in imitation of butter, not wholly from milk or cream, and being of another color than pink. The second case is an action of Debt, to recover the fine of $50 prescribed in the statute for selling the same article, one half for the use of the county.

<p>Notice by the lessee of a store to the lessor that he has sold his stock of goods, with a request that the rent bills should thereafter be made against the purchaser, is not sufficient to terminate the tenancy without the assent of the lessor.</p>

<p>Where it clearly appears by a will that the intention of the testator was to give all his property remaining after the discharge of certain legacies in equal shares to several persons named, that intention will not be defeated because, after making the will, not intending to change the disposition, he changed the form of the residue from real to personal estate.</p>

Bill in Equity, by certain tax-payers of Lyndeborough, for an injunction to prevent the use of money belonging to the town to assist the Lafayette Artillery Company in erecting a building to be used by them for an armory, and by the town for certain specified purposes.

Case, for the negligent injury of the plaintiff. Verdict for the defendant. In October, 1886, the defendant, while driving a horse in a carriage on a public street of Manchester, ran over and injured the plaintiff, an infant then five years old, who had wandered from his home without an attendant or custodian, and was playing in the street with other children of about the same age.

Bill in Equity. Facts found by a referee. About 1848 the defendant gave a mortgage of the demanded premises to James Scott. In 1868 a writ of entry was brought to foreclose this mortgage, and a conditional judgment rendered thereon for $2,874.51 at the May term, 1868.

Probate Appeal. In December, 1884, the defendant was guardian of John H. Gregg, an insane person. At that time Gregg’s sister and others made a petition to the probate court for his removal on the ground of mismanagement, incompetency, and hostile relations existing between him and his ward. Upon that petition there was a hearing before the probate court, the defendant employing and paying counsel, and having present and paying about twenty witnesses.

Petition, upon Gen. Laws, e. 75, s. 9, for leave to file with the defendants’ aldermen a claim for damage caused by a defective highway. The plaintiff’s counsel seasonably filed a claim with the city clerk, but omitted to file a claim with the aldermen because he did not know that the law (c. 65, Laws 1885) required a claim to be filed with any other person than the city clerk. The court granted the petition, and the defendants excepted.

Trespass, for breaking and entering the plaintiff’s close in Winchester, situated between the travelled track of a highway and the Ashuelot river, and removing therefrom a certain building. Facts agreed by the parties. The highway in question was laid out in 1832 along the bank of the Ashuelot river on a straight line, and has ever since been used as a public highway.

Bill in Equity, praying that the line between land of tbe plaintiff and defendant be established, and that the defendant be ordered to remove two bouses wbicb are situated partly upon the. plaintiff’s land. Facts found by a referee. Tbe defendant bas two bouses which extend over tbe line, — tbe northerly one at its north-west corner seven and forty-five hundredths feet; tbe southerly one at its south-west corner four and ninety-five hundredths feet.

<p>On the question of testamentary capacity, evidence of the relations existing between the testator and a legatee named in his will is admissible.</p> <p>Declarations of legatees, against their interest, are not admissible in a proceeding to set aside the will, to which proceeding they are not parties.</p> <p>Opinions of non-experts may be received as to the mental soundness or unsoundness of the testator.</p> <p>Evidence that the testator, eight months before making the will, knew the amount and character of his property, is admissible on the question of his testamentary capacity when the will was executed.</p>

Indictment, upon Gen. Laws, c. 274, s. 10, for wilfully and deceitfully enticing away a female child under the age of eighteen years, with the intent and for the purpose of prostitution.

Bill in Equity, for the construction of the following clause in the will of Lydia P. Wilcox, late of Newport: “The rest and residue of my property after paying all debts, and erecting a suitable headstone at my grave, I wish to have sold, and the avails divided between my brother John B. Sawyer’s family and Mary J. Miller.” The will contained the following among other bequests: “I give to my brother John B. Sawyer, of Broadhead, Wisconsin, the sum of fifty dollars for the…

W hit oe Entry, on a mortgage executed by Charles Foster and his wife Louisa, March 29, 1883, to Herbert B. Moulton, to secure the payment of their note of that date for $800, payable to Moulton or order on demand with interest. Facts found by the court. After the note was overdue, it was endorsed, and the mortgage assigned by Moulton to the plaintiffs for value. Charles was defaulted; the administrator defends under the general issue, with a brief statement.

Bill in Equity, for an injunction to restrain the defendant from casting sawdust into the stream, whereby it is floated down and lodged upon the plaintiff’s land below, etc. The defendant has a mortgage of the premises claimed to be damaged by the sawdust; and a referee, after holding that the plaintiff has a plain and adequate remedy at law, found that unless the defendant, by virtue of his mortgage, has the right to cast his sawdust and waste material into the stream, and…

Facts found by a referee. The action was to recover for damage to land of the plaintiff’s .intestate, caused by the lodging and deposit thereon of sawdust from the defendant’s mill, situated above on a small stream, whence it was floated down upon the land. The original declaration was in assumpsit. The referee allowed certain amendments, whereby the form of the action was changed to case; and the. defendant excepted..

Petition, to be reimbursed the sum of 1184.50 expended for the support of one George P. McCormick, a poor person. Said McCormick resided in Canaan from some time in 1872 until his death in March, 1888, and was taxed for his poll there in 1878 and 1874 under the name of James McCormick, and from 1875 to 1879, inclusive, under the name of George P. McCormick.

<p>Case, for ejecting the plaintiff’s intestate from a car of the defendants, June 6,1883, and afterwards on the same day negligently running upon him with a freight train, causing his death. Verdict for the plaintiff for $3,500.</p> <p>There was evidence tending to show that Waldron was ejected by the defendants’ conductor for non-payment of fare at a place called Beattie’s Turn Out in Stratford; and it was claimed by the plaintiff that that place was not a passenger station within the meaning of Gen. Laws, c. 163, s. 22. Upon this point much evidence was introduced, and it appeared, among other things, that there was no passenger station building there; that no ticket office or ticket agent was kept there; that no tickets were sold or baggage checked there to other points, either on the defendants’ line or beyond.</p> <p>The defendants excepted to the refusal of the court to give the following instruction to the jury :</p> <p>“ A passenger station, within the meaning of s. 22, c. 164, Gen. Laws, relating to the expulsion of a passenger from the cars for non-payment of fare, is a place where passengers are commonly allowed to get on and off the cars, a place specified on the time tables and fare tariffs of the company as one of their stations, and a point to which tickets from other stations are commonly sold when called for.”</p> <p>No question was made but that Waldron, while lying intoxicated on the track of the defendants’ road, was run over by a freight train, June 6, 1883, and killed.</p> <p>The facts showing the other questions decided by the court are stated in the opinion.</p>

Writ oe Entry. Trial by the court. The plaintiff owns a piece of land in Lancaster village, out of which, previous to his acquiring his title, a lot, now owned by the defendant, had been conveyed by deed with the following description: “A certain piece or parcel of land with the buildings thereon, situated on the easterly side of Main street in Lancaster village, bounded and described as follows, viz.: Commencing at the north-west corner of the plot deeded by Jacob E.…

<p>A petition under Laws of 1887, c. 77, must allege that the building complained against is used for the illegal sale or keeping for sale of spirituous or malt liquors.</p> <p>Such a petition ought to be framed according to the forms in equity, prescribed by the rules of court.</p>

<p>The statute penalty of twenty-five cents a mile for the travel each way of a party or his attorney to attend a caption of depositions, when no deposition is taken, cannot he recovered for the travel of the general business agent of the party for that purpose.</p>

Trover, for 100 bushels of oats. Facts found by a referee. Tbe defendant, having a bin of oats containing more than 200 bushels, sold 200 bushels of them to the plaintiff, to be weighed out at thirty-two pounds to the bushel. About 100 bushels were weighed out and delivered according to the contract; and it is for failure to deliver the remainder of the 200 bushels on demand that this suit is brought.

Assumpsit, by the plaintiff as assignee of Hicks, under Gen. Laws, October 21, 1885, Hicks being indebted to the defendant in the sum of $146.50 upon two promissory notes given prior to 1885, made a new note to the defendant for that sum payable on demand, and executed a mortgage of a yoke of oxen and a horse to secure its payment. October 26,1885, he sold the oxen for $180, and paid the money to the defendant, who endorsed that amount upon the note.

Appeal, from a decree of the judge of probate, allowing the will of Emmons Mclntire. The appellant, a son of the deceased, born before the will was made, is not named or referred to in the will. He makes no objection to the allowance of the will except the omission to name or refer to him. The court dismissed the appeal, and the appellant excepted.

Case, for damage caused by the defendant’s negligence in the use and management of Atlas powder. Verdict for the plaintiff. Exceptions, and motion of the defendant to set aside the verdict for concealed disqualification of a juror and misconduct of the jury.

Foreign Attachment. The trustees are the Norway Plains Co. and Sayward & Co. The writ was served May 25, 1885. Before that time the defendant, who was employed by the Norway Plains Co., assigned to Sayward & Co. his wages then due and which might become due prior to March 1, 1886. Since the service of the writ the Norway Plains Co. have paid to Sayward & Co. under the assignment $317.38, and hold in their hands subject to it the sum of $56.50.

<p>Indictment, for violating Gen. Laws, c. 132, to which there was a demurrer.</p>

<p>Assumpsit, for $100, money had and received. Facts found by the court.</p>

Case, for diverting the water of Pond brook from the plaintiff’s mill, against the provisions of a deed from the defendant to the plaintiff. Report of a referee for the plaintiff.

<p>Petition for a new trial. The defendant demurred; the court sustained the demurrer, and the plaintiff excepted.</p>

<p>Issue, lor the determination of a right of homestead.</p>

<p>In Equity. Reported 64 N. H. 102.</p>

Trespass de bonis. The plaintiff owned three horses, one of which was mortgaged. The defendant, a deputy sheriff, seized the two unincumbered horses on a writ, and, upon the plaintiff’s demand of one of them as exempt from attachment, refused to give it up. Judgment was rendered for the plaintiff, and the defendant excepted.

<p>Motion for rehearing of case reported 64 N. H. 371.</p>

<p>Writ of Entry.</p>

Dep.T, on an injunction bond filed in a bill in equity brought by Porter against the plaintiffs for leave to redeem mortgaged lands. Porter obtained a decree giving her leave to redeem by paying to the plaintiffs the amount of the mortgage debt in thirty days. She did not redeem.

<p>Assumpsit, on a promissory note made in 1873, and secured by a mortgage of real estate, upon which there were prior mortgages. Plea, the statute of limitations. It was agreed that in 1877 the mortgaged premises were sold, and the proceeds applied on the prior mortgages in the course of insolvency proceedings against the defendant’s estate.</p>