Volume 65 — New Hampshire Reports

Replevin, for a piano and piano stool. Facts found by the court. August 8,1887, George D. Lamos bought the instrument in question of D. Lathrop & Co. for $225, to. be paid $50 down, and the remainder in instalments of $10 a month. The piano was delivered to Lamos, but was to remain the property of the sellers until the whole of the price ■ was paid, according to the terms of the conditional sale.

Trover, for a horse. Facts found by a referee. The defendant justified the taking, as a deputy sheriff, on a writ of replevin in favor of C. E. Winkley against this plaintiff. September 25, 1884, Winkley sold the horse by auction to the plaintiff for $125.

Petition eor Partition. The defendants are the widow and heirs-at-law of Oliver H. Lord, who died intestate May 13, 1883. In his lifetime Oliver H. Lord made advancements to three of his children, and among them was an advancement to the defendant, George' B. Lord, of $16,500. The real estate was not of sufficient value so that upon partition of the same the plaintiff would receive so much as $16,500.

Assumpsit, to recover the amount of a promissory note for $426, dated March 12, 1888. Facts found by a referee. March 12, 1888, the plaintiff was in the occupation of an apothecary store in Great Falls, owned by one Roberts, with a verbal assurance from Roberts that he should continue to occupy it as long as he pleased, although his written lease had expired.

Probate Appeal. Facts agreed. By his last will, John Burns, after making certain legacies, devised and bequeathed the remainder of his estate to Joseph°Madigan; but if said Joseph should die under age and unmarried, then to the appellants. Joseph Madigan died July 12, 1888, under age and unmarried. The testator died September 22, 1874. The appellee was the guardian of Joseph Madigan, and had the care and control of the property derived from the Burns estate.

Indictment of th.e defendants, as supervisors of the town of Barrington, for refusing to place upon the check-list in March last the name of Dr. John S. Daniels. Dr. Daniels is thirty-seven years old and unmarried. He was born in Barrington, graduated at a medical college in 1875, and practised his profession in Barrington until May, Í884. Since his father’s death in 1888 he has owned the homestead place, subject to a life estate in his mother.

<p>The last clause of section 16, chapter 202 of the General Laws, relating to a husband’s rights in the real estate of his deceased wife, is not repealed by chapter 37 of the acts of 1879.</p>

Claim for aid furnished Berthana Wallace, a pauper. Facts ■•agreed. In 1858 Berthana Wallace, then seventeen years of age, was married to Samuel Wallace, who .was then nineteen years of age.Each had a settlement in Ossipee at the time of their marriage. In 1880 they were divorced, upon a libel filed by the husband.

<p>Where covenants of title in a deed are broken as to a part of the land convoyed, the damages are such a portion of the purchase-money and interest as the value of that part hears to the value of the whole land measured by the price paid.</p> <p>A set-off will not he allowed in a suit against A, B, and C of a debt due from the plaintiff to a copartnership composed of A and B.</p>

Foreign Attachment. Facts found by the court. The writ was served on the trustees January 28, 1884. The trustees had a contract with the defendant to cut and haul the spruce timber from their lot in Warren to the railroad for $6.25 per thousand. They were to furnish him with teams and tools to use in performing the contract, and make advances in money for supplies.

<p>In an action to recover the price of goods sold, if the defendant pleads, byway of recoupment, damages suffered by him from a breach by the plaintiff of his contract as to the quality of the goods, he can have judgment only for costs, though his damages exceed the amount of the plaintiff’s claim.</p>

Case, to recover damages for the refusal of the defendants to transfer to tbe plaintiff 150 shares of the company’s capital stock, which he claims to have purchased at a sheriff’s sale of the same upon an execution against one Hale Chadwick. At the October term, 1887, there was pending an action at law between the plaintiff and the defendants, to recover damages for the company’s refusal to transfer to him the same 150 shares of stock.

<p>Stipulations for a forfeiture are to be strictly construed.</p> <p>A “ paid up ” policy in a mutual life insurance company is not forfeited by failure to pay the interest on premium notes given on the original policy, nor (when the amount to be paid is unknown to the insured) unless the insurer notifies the insured of the true amount due, although the policy contains a condition of forfeiture on failure to pay the interest on such notes when due.</p>

Real actions to recover land set off to the plaintiffs on executions against the defendant’s wife, amounting to some $300. Facts found by the court. In February, 1885, the wife was the owner of one half of the homestead place then and ever since occupied by her husband and herself, and, being desirous of going into trade with one Holt, she agreed with the defendant that if he would furnish her $500 for this purpose she would convey to him her half of the homestead premises.

Bill in Equity, for an injunction to restrain the defendants from constructing a side track or turn-out on Eisk street. The first section of the defendants’ charter gives them power to construct, maintain, and use a railroad, with convenient single and double track, from any point on Main street in Concord, over, along, and upon such of the streets in said Concord as may be necessary for the public accommodation, to West Concord.

Probate Appeal. The appellant is administratrix de lords non of Elizabeth Marshall, who died intestate in 1862. The appellee is executor of the will of Almon D. Marshall, who was the husband of Elizabeth, and died testate September 15,1885. Almon was appointed administrator of his wife’s estate in February, 1863, and returned an inventory showing personal estate to the amount ■of $905.51. The records of the probate court show no further action by him as administrator.

<p>A mortgage made in part to secure a fixed sum of money agreed to be paid by the mortgagee on the happening of a definite contingency, is not within the statute prohibiting mortgages to secure future advances.</p> <p>The lex loci rei sitae determines the validity of mortgages of real estate.</p> <p>The lex loei contractus determines the validity of promissory notes.</p> <p>The law of Massachusetts allows the parties to contract for any rate of interest, and the provision of the statute of that state “ that no greater rate of interest than six per centum per annum shall be recovered in any action except where the agreement to pay such greater rate of interest is in writing,” does not render invalid executed oral agreements for a higher rate than six per cent.</p> <p>When A pays money for land the deed of which is taken in the name of B, the payment, in order to give rise to a resulting trust in B’s favor, must be made at the time of the purchase.</p>

Indictment against the defendants jointly for engaging in the business of retailing drugs, medicines, etc., and in compounding and putting up prescriptions of physicians, without having first obtained a license as required by Gen. Laws, c. 133. The defendants demurred, and assigned for causes, — (1) That the legislature exceeded their constitutional power in passing the act in question; (2) that the defendants should have been indicted severally, and not jointly.

<p>Bill in Equity, for an accounting, and for the discharge of certain mortgages, by Moses Fellows, since deceased, against Clough and Foster, as executors of Herman Foster, or as trustees under- his will, and certain other persons interested in his estate. The defendants, Clough and Foster, having filed an answer, the cause was sent to a master, who reported as follows :</p> <p>Herman Foster died February 17, 1875. He left a will, in which John Foster and Lucien B. Clough were named as executors and trustees, — the will providing that the trustees and the survivor of them should hold what remained, after paying certain legacies, in trust, to pay. over the income to his wife during her life, with power to sell the real estate with her consent. The executors named accepted the trust, and on the 27th day of February, 1877, filed their account as such executors. The following day they filed their bond as trustees. Among the property that came into their hands as trustees was a parcel of real estate located upon Elm street, in Manchester, which was appraised at $55,000, and which was called the Merrimack block.</p> <p>This bill in equity was brought by Moses Fellows, November 3,1877, against said John Foster and Clough, and all other persons who had any interest under said will.</p> <p>Moses Fellows died September 25, 1879, and Joseph B. Clark was appointed administrator of his estate, and assumed the prosecution of this suit.</p> <p>It was proved that Moses Fellows once owned the land and buildings known as Merrimack block, which covered lots 293-296 inclusive, as designated in the original laying out, except a part of lot No. 293. He also owned a part of lots 291 and 292. It was proved by record evidence that Fellows mortgaged lots 295 and 296 to the Amoskeag Manufacturing Company, September 26, 1844; that the company brought a writ of entry at common law against Fellows, upon the mortgage, October 11, 1851, and recovered conditional judgment November 22, 1851, for $601.81 debt .and $10.88 costs; that the mortgage and judgment were assigned, January 30, 1852, to Herman Foster, for* the consideration of $608.62; that said Foster, as assignee, was put in possession by an •officer, upon a writ’of possession, August 30, 1854. It was further proved by record evidence that Moses Fellows mortgaged to Joseph iS. Lund, August 4, 1845, lots 295 and 296, and so much of lot No. .293 as he owned. September 3,1852, Lund assigned the mortgage to E. J. M. Hale for the consideration of $2,131.25, the balance then •due upon it. Said mortgage was never foreclosed.</p> <p>It was further proved, by record evidence, that Fellows, September 9, 1846, mortgaged to George K. Montgomery lots 295 and 296, five feet in width, on the south side of lot No. 294, and so' much of lot No. 298 as he owned; that January 15, 1847, Montgomery assigned the mortgage to E. J. M. Hale; that April 5,,</p> <p>1852, Hale brought a writ of entry upon the mortgage against Fellows, and May 8, 1852, recovered conditional judgment for $13,877.88 debt, and $11.13 costs; that October 29, 1852, a writ of possession was issued, and that, January 13, 1853, Hale was put in possession upon the writ by an officer. October 15, 1853, Hale assigned the Montgomery mortgage and judgment, and the .Lund mortgage, previously assigned to him, to Herman Foster, for the consideration of $17,210.87, of which sum $5,210.87 was paid in cash, $2,000 by a note payable in one year, and the remaining $10,000 by a note payable in ten years. By a deed bearing date January 16, 1854, but acknowledged January 24, 1854,. Hale quitclaimed all his interest in the property covered by the Lund and Montgomery mortgages to Herman Foster.</p> <p>It was further proved, by record evidence, that Fellows executed to the city of Manchester a mortgage bearing date September 20, 1851, which covered lots 294, 295, 296, all that Fellows owned of lot No. 293, and also so much of lots 291 and 292 as he owned. January 13, 1852, the city assigned said mortgage to J. T. P. Hunt; March 22, 1852, Hunt brought a writ of entry upon the' mortgage, and May 8, 1852, recovered conditional judgment for $2,698.80 debt and $6.88 costs. April 29, 1853, Hunt assigned the mortgage and judgment to Isaac Tompkins, and May 13> Tompkins assigned the mortgage and judgment to Herman Foster., A writ of possession issued upon said judgment November 8,, 1853, which was served January 30, 1854. By request of counsel for the plaintiffs, the return is set forth in full, which is as follows :</p> <p>“Hillsborough, ss.</p> <p>January 30, 1854.</p> <p>“ I have caused the within named Jonathan T. P. Hunt to have full seizin and possession óf the premises within described, as within commanded, by delivering the same to Herman Foster, Esquire, Attorney and Assignee.</p> <p>“Mace Moulton, D. Sheriff.”</p> <p>The counsel for the plaintiffs claimed that the service of this writ was ineffectual for the purpose qf a foreclosure, upon the ground that Foster was in actual possession of the property mortgaged before the date of this return, and requests that the facts-bearing upon this point be reported. 1 find that, January 17, 1852, Fellows ^assigned the rents to Isaac Tompkins, who agreed to account to him for them; that Tompkins collected the rents of the whole premises owned by Fellows down to and including January 1, 1853; that from that time the rents accruing from the premises covered by the Montgomery and Lund mortgages were collected by Hale until he assigned said mortgages to Herman Foster, and the rents accruing from the balance of the premises were collected by Tompkins down to and including December 1, 1853; that all of the rents were, in fact, collected by Foster, or by the firm of which he was. a member, as attorneys, and accounted for to the parties to whom they belonged, as above stated; that Foster ■continued to occupy the premises always, down to his death, renting them, collecting the rents, and treating them as his own prop-erty; and there is no evidence that he ever accounted for any rents collected by him, except as above stated, or that any claims were ever made upon him for said rents. No question was made that all of said mortgages were for a valuable consideration, and that the sums purporting to be due upon them were actually due; but the plaintiffs’ counsel claim that the mortgage of the Amos■keag Manufacturing Company was paid by Fellows. The referee finds that Isaac Tompkins paid to Foster, as Hale’s attorney, from the rents due November 1, 1852, from the property covered by the ■mortgages then held by Hale, and upon one of which a writ of possession issued October 29, 1852, $142.50, the payment being made November 4, 1852; from -the same source, from the rents due December 1, $150; from the rents due' January 1, 1853, $150; ■that Foster, as Hale’s attorney, collected the rents due February 1, 1853, $150.66 ; that February 10, 1853, a settlement was made between Foster and said Hale, in which Foster accounted to Hale for said sums by passing over to him said note and mortgage, and receiving Hale’s due-bill for the balance then remaining due upon said mortgage, amounting to $61.09, which was subsequently can-celled by applying the rents collected by Foster for Hale to its •payment. Receipts were given for said sums of $142.50, $150, and $150, agreeing to apply them upon the Lund mortgage, but they were never so applied. L find it probable, there being no direct evidence upon the point, that Hale forebore to have his writ of possession served as soon as obtained, upon the agreement that ■the rents of the premises covered by it should be paid over and applied to extinguish the mortgages upon them.</p> <p>It was further proved, by record evidence, that on September 22, 1851, Fellows executed a mortgage, called at the hearing the surety mortgage, to Ira Clough, John D. Riddle, Jonas Harvey, Jr., Benjamin Mitchell, Isaac Tompkins, David Webster, Gilman Harvey, Amos G. Gale, and Reuben White, to secure each of them for endorsing certain negotiable paper described in said mortgage, at the request of said Fellows. Said mortgage covered Fellows’s interest in lots 291-296 inclusive, and also the homestead of Fellows at Goffe’s Falls.</p> <p>Ira Clough, by deed dated March 20, 1854, assigned all his interest in said mortgage for the consideration, as expressed in the assignment, of $3,161.22. David Webster made a like assignment, under date of April 4, 1859, for the consideration of $1,000, the ■debt being stated as amounting to $1,244.66, May 7, 1857, as determined by a judgment which was included; John D. Riddle, under date of February 9,1853, for the consideration of $1,106.51; Benjamin Mitchell, under date of September 20, 1853, for the ■consideration of $1,033.29; Isaac Tompkins,-under date of June 10, 1853, for the consideration of $2,499.52 ; and Gilman Harvey, under ■date of July 12, 1853, for the consideration of 1,207.43. The several parties named covenanted, in their several deeds of assignment, that the sums named as the consideration of said assignments were actually due them by reason of payments made by them upon said negotiable securities endorsed by them. No foreclosure of the mortgage upon the Merrimack block was ever attempted. December 16, 1865, Foster sued out a writ of entry upon the mortgage, against Fellows, to recover possession of his homestead at Goffe’s Falls. December 18, 1865, Fellows acknowledged service •of the writ. Fellows and Foster, by an agreement in writing, entitled as of the January term, 1866, stipulated that judgment be entered upon the writ, as of mortgage, for $17,544.05 debt, due February 14, 1866, and costs amounting to $7.20. The amount •of the debt was made up by taking the amounts expressed in the several assignments as the amounts due the assignees respectively, and adding interest to the date of judgment. Possession was never taken of the premises under the judgment, and a writ of scrire facias was sued out by the executors thereon since the •death of said Foster, which is now pending. The plaintiff denied the payment by said parties of the notes, and also the payment by Foster of the consideration of the assignments. The payment by Tompkins of the securities endorsed by him was verified by the ■affidavit of Tompkins and Nathan Parker, filed in the suit; and the payment of Gilman Harvey, by the affidavit of Moody Currier. Parker and Currier were called as witnesses, and testified that they had then no recollection of the payments, but that they must have known and remembered the facts stated in their respective affidavits at the time of signing them. There was no other direct •evidence upon the question of the payment of the securities by the parties, aside from the judgment and the papers filed, copies of which make a part of the record thereof, except the deposition of Isaac Tompkins, who testified that he paid nothing upon the securities endorsed by him, and there was no other direct evidence .as to the amount paid by Foster for the assignments.</p> <p>The plaintiffs offered no evidence that Herman Foster agreed in writing with Moses Fellows to hold Merrimack block, or his legal title in any real estate acquired by him which once belonged to Fellows, in trust for the benefit of Fellows, or that he agreed to keep open the foreclosure of the mortgages and allow Fellows to redeem the same. There is not sufficient evidence to prove that there was any such verbal agreement or understanding between ■ them, or that any part of the funds which were paid by Foster for the mortgages assigned to him were received from Fellows or from funds which belonged to him.</p> <p>Foster, on the 1st day of November, 1867, conveyed to Alonzo H. Weston all that part of lots 291 and 292 which he acquired of Fellows, with a- strip adjoining from lot No. 293, two feet wide, for the sum of $2,000. The remainder of the property upon Elm street continued to be his until his death. A reference to the plan accompanying this report shows the location of the premises upon Elm street, and the lots covered by the various mortgages.</p> <p>It was further proved, by record evidence, that Moses Fellows, on the 22d of September, 1851, made- another mortgage to the same persons, named as grantees in the surety mortgage before described, to secure them against the same indebtedness described in the surety mortgage.</p> <p>The mortgage covered all the lands owned by him in Londonderry. On the 10th day of June, 1853, Isaac Tompkins assigned all his interest in said mortgage to said Herman Foster for the consideration, as expressed in the assignment, of $2,499.52. The assignment bears the same date, and is for the same consideration, as his assignment to Foster of his interest in the surety mortgage in Hillsborough county. July 12, 1853, Gilman Harvey assigned his interest in the mortgage to Foster for the consideration of $1,207.43, as expressed in the assignment, which bore the same date and was for the same consideration as his assignment in Hillsborough county. September 5, 1853, Foster sued out a writ of entry upon the mortgage, and November 4, 1853, recovered conditional judgment for $3,788.67 debt and $6.88 costs’.</p> <p>A writ of possession issued June 30, 1854, which was served September 12, 1854, at which time Moses Fellows became tenant of Foster under a written lease, at a rental of fifteen dollars a month. The mortgage was described as subject to a mortgage of John Foster, dated September 22, 1851, made to secure his note of even date for $2,000, payable to John Foster in five months.. September 6,1852, a writ of entry was brought upon the mortgage, upon which conditional judgment was rendered October 12, 1852, 0 for $2,166.67 debt and $5.28 costs. A writ of possession issued upon it, which was served December 14, 1853, and possession delivered to Herman Foster as attorney for John Foster, and on the same day Moses Fellows acknowledged by deed that he held the premises as tenant of John Foster, and agreed to pay one cent a month rent.</p> <p>The plaintiffs claimed that this mortgage was without consideration, and it was conceded by the defendants, if the evidence was competent for any purpose, — which they denied, — that John Foster knew nothing of the making of the note and mortgage at the time it was made, and for a long time afterwards. There was no other evidence upon the question of the consideration of this mortgage.</p> <p>June 25, 1858, Jonas Harvey, Jr., assigned all his interest in the' surety mortgage in Rockingham county to John Foster for the consideration of $953.67, as expressed in the deed of assignment, in which Harvey covenanted that he had paid the note endorsed by him, and that amount was due him by reason of the payment. September 5,1853, John Foster sued out a writ of entry upon the mortgage, and on November 4, 1853, recovered conditional judgment for $953.67 debt and $6.68 costs. A writ of possession issued upon this judgment, which was served September 12, 1854, and Herman Foster, as attorney for John Foster, put in possession. October 2,1855, John Foster quitclaimed to Herman Foster all his interest in the lands mortgaged under the two preceding mortgages, for the consideration, as expressed in the deed, of $1,000.</p> <p>A part of the premises was described as subject to a mortgage made by Moses Fellows to Ebenezer Colby, dated September 20, 1851, to secure a debt of about $1,300, and a mortgage to William Perkins, dated September 22, 1851, to secure a debt of about $1,000. No question was made that these were genuine debts. May 10, 1854, Colby assigned the mortgage to Herman Foster for the consideration of $900, and I find upon evidence aside from the deed of assignment that he paid this sum to Colby. August 28, 1854, a writ of entry was brought upon the mortgage by Herman Foster against Fellows, and November 4, 1854, a conditional judgment was rendered thereon for $1,608.03 debt and $6.08 costs. No possession was ever taken under the judgment. No claim was made by any person under the Perkins mortgage. It appeared that his debt had been paid in some way, and that the money was received through Herman Foster.</p> <p>November 24, 1856, Herman Foster quitclaimed a part of the premises described in the Rockingham county mortgages to Edward Ballou for the consideration, as expressed in the deed, of $520, covenanting to warrant against any persons claiming under him or Moses Fellows. March 30, 1857, he quitclaimed other tracts to William P. Farmer and Joseph T. Goss, for the consideration, as expressed in the deed, of $5,000. These conveyances covered all the lands acquired by Foster in Rockingham county under these mortgages, except one tract of about fifty acres, which was appraised at his death, as the Londonderry farm, for $1,200. The plaintiff offered no evidence that Herman Foster ever agreed in writing to hold the lands in Londonderry in trust for the benefit of Moses Fellows, or keep open the foreclosure for him, and there is not sufficient evidence of any such verbal agreement, or that the money paid by Foster was received from Moses Fellows or from funds belonging to him.</p> <p>The master finds that all of the mortgages mentioned in this report upon which judgments were obtained and writs of possession sued out and served, were legally foreclosed so far as the determination of this question depends upon any finding of the facts.</p> <p>It appeared in evidence that Fellows, for some time prior to September 22, 1851, had been somewhat extensively engaged in the shoe business, was an active business man, and at that time mayor of Manchester; that on the 22d day of September, 1851, he failed in business; that he became aware that he must fail on the Saturday previous, September 20, and on that day retained Herman Foster and Isaac W. Smith, who were then in partnership, as his counsel, Foster as the senior member being his chief adviser, and that Foster, either alone or in connection with partners associated with him, was counsel for Fellows in all the business connected with his failure, and it did not appear that he ever ■employed any other counsel except through Foster. Foster or his firm was counsel for the plaintiff in foreclosing all of the mortgages set forth in this report, and Fellows did not employ any counsel to defend any of the foreclosure suits. The claims against Fellows were large and the suits numerous, and all of his visible property not previously sold or mortgaged was attached, and he never had any attachable property afterwards of any amount. September 22, 1851, Foster went to Boston and sold two shares in the Amoskeag Manufacturing Company, belonging to Fellows, for $1,700. Ten shares in the Manchester Bank, worth about par, were transferred on the same day to the firm of Foster & Taylor, a firm of which John Foster was one of the partners, and some time subsequently was transferred by them to Herman Foster. There was no evidence what became of the proceeds of these stocks. The stock in trade in the shoe business was sold by the attaching officer, and purchased by Isaac Tompkins for the benefit of Fellows, and the business was continued for a year and upwards, nominally by Tompkins, but really by Fellows. Notes given in the business and for accounts due Fellows were intrusted to Foster for collection from time to time. These were twenty-three in number, amounted to $10,292.13, and were dated mostly in the spring of 1853, but some in 1852, and two in the spring of 1854. A schedule of the same appeal’s in a demand made upon the executors by Fellows, dated February 21, 1877, and which accompanies this report. The defendants produced receipts of Fellows covering all the sums collected upon these notes. It was paid over in comparatively small sums, for which Fellows gave his notes, which were surrendered at the date of the receipts. The last receipt bears date March 1,1859.</p> <p>It appeared that Foster had, during the years from 1861 to 1874 inclusive, paid Fellows money in amounts varying from $8 to $400, sometimes charged for stock and repairs on buildings, and sometimes simply as cash. The whole amounted to $4,301.51.</p> <p>It appeared further, that Foster held notes against Fellows, eighteen in number, the principal of which amounted in the aggregate to $8,328.51. These notes were renewed after the death of Foster at the request of his executors, and were presented to the commissioner upon Fellows’s estate after it was represented insolvent.</p> <p>It further appeared, that Follows, on the 13th day of October, 1874, executed to Foster a release under seal, in consideration of $250 paid, of all demands and actions he had against Foster; the release is set up in an amendment to the answer which was allowed by agreement. Upon request of the plaintiff, the defendants produced four other releases in the same form, bearing <Iate, respectively, October 7, 1861, January 16, 1870, June 15, 1870, and June 27, 1874.</p> <p>A copy of the release set up in the answer is herewith submitted. The defendants offered in evidence, also, four receipts given by Fellows to Foster in the years 1869 and 1870, amounting in the aggregate to $325, for money to be used in repairing buildings belonging to Foster at Goff’s Falls. The buildings referred to are those upon the homestead of Fellows, described in the surety mortgage before referred to. Upon this evidence, and other circumstances to which the attention of the referee was called, the plaintiff claimed, and asked the referee to find and report, that Fellows was, and always continued to be, under the control of Foster as his counsel, and signed any papers he prepared without examination, and relying upon Foster as his counsel, and that they would not be used by him to his detriment; that Foster was continually, and nearly down to the time of his death, paying Fellows money and taking his obligations, which he knew Fellows could not pay and had no means to pay except from the real estate ; and that it must have been understood> between them that Fellows was the owner, or had a large interest in that real estate, or the right to redeem the mortgages. There is no evidence in the case which throws any light upon these transactions, except what appeared as to the acts of the parties, the character and contents of the papers produced, and what appeared as to the character and conduct of the parties. It appeared from the papers and the evidence that Foster was a very exact and cautious man, and it also appeared that Fellows was acquainted with business. There was no evidence that pointed to any fraud or deception used by Foster; and the referee finds that whatever might have been the motive which induced Foster to let Fellows have money and take notes which he must have known Fellows could not pay (and this is a matter of mere conjecture), he took the notes and. releases to assert on his part, and have Fellows admit, that he did not pay him money on account of any legal liability to him, and that Fellows must have signed them knowing the purpose for which they were exacted, and intending to admit that they were not paid on account of any legal liability. It appeared from Foster’s books that his account for services commenced September 22, 1851, and was settled December 3, 1857, by Fellows’s note of that date for $1,369.92. The account included services and cash paid out, and some items of cash lent, and the main portion of it was charged prior to January 1, 1855.</p> <p>There was a small unsettled account upon his books, amounting to about $60, commencing December 30, 1857, and ending September 11, 1862. There was an entry under date of April 7, 1868, but no amount carried out against it.</p> <p>The master finds, so far as it is a question of fact, that Foster’s title to the real estate under the mortgages assigned to him is not affected by the fact that he was employed as counsel by Fellows.</p> <p>The master was requested by counsel for the plaintiff to report facts upon a large number of specific requests. Many of the requests were designed evidently to call his attention to facts and circumstances which, sustained the plaintiff’s view of the relations of the parties, and the agreements claimed to exist between them, and are answered by the general finding in the report. The master was requested to enter, into a calculation of the amounts due upon the Montgomery and Lund mortgages when transferred to Foster, deducting the rents.</p> <p>The data are not quite definite, and the result would have no material effect in the case unless it should be decreed that the plaintiff is entitled to redeem, and he has not, for that reason, attempted such calculation. He was also requested to enter into a calculation," and report at what time the rents of the Merrimack block would have paid the mortgages and interest, but he has not done so for the reason above given; also, to find the value of the different parts of the block. There was no evidence of value except the amount of rents paid. In 1852 and 1853, the rents of that part of the block covered by the Montgomery and Lund mortgages amounted to about $150 per month; of the remainder of the block, to about $70 a month.</p> <p>The master was asked to report the facts in reference to the executors’ withholding the books and papers of Foster from examination. The executors were requested to produce the books and papers before the commissioner upon the presentation of their claim, but declined to do so. An attempt was made to take the deposition of Clough in this case, and he then declined to produce them on the ground that it would disclose their case. Upon the hearing before the master, they were again requested to produce them, and they produced all books and papers called for which they could find or had any knowledge of, as they declared, and the master finds no evidence which impeached or discredited their declaration upon this point. No book was produced showing the private cash transactions of Herman Foster between September 20, 1851, and March 30, 1857, and the plaintiff claimed that, from his well known habits of care and method in keeping his accounts, such book must have been kept by .him. No witness was produced who ever saw such book, or knew of its existence. The master' was requested to find the amount due upon the mortgage upon the homestead at Goff’s Falls. The defendants claimed that the judgment conclusively determined the amount. The plaintiff objected to tbe acknowledgment of service made by Fellows upon the writ, and his agreement as to the amount for which judgment should be rendered, upon the ground that there was no proof of the genuineness of liis signature. The objection was overruled, upon the ground that the agreements were in part the basis of the judgment and sufficiently proved by it. The plaintiff excepted.</p> <p>In addition to the facts previously reported, the master reports that no allowances were made on account of the Merrimack block, covered by this mortgage, as previously stated, or the lands in Londonderry, and makes no finding upon this point until the legal principles involved have been determined by the court. The homestead was appraised in the executors’ inventory at $6,000.</p> <p>It appeared that the surety mortgage upon the homestead was by its terms made subject to a mortgage to Thomas Livermore, dated September 20, 1851, to secure a debt of $5,000, as described in the mortgage. It appeared, also, that a writ was sued out upon this mortgage at the April term, 1852, a conditional judgment entered up, a writ of possession issued under which Livermore was put in possession, August 18, 1852, and that Fellows became his tenant under a written lease, at a yearly rent of $1. April 18, 1875, Livermore quitclaimed all his interest in the premises to Moses Fellows. The defendants objected to this evidence as immaterial upon any question raised in this case, and in their brief, furnished after the evidence was closed, asked leave to offer further testimony upon this matter.</p> <p>The defendants objected to any parol evidence to establish any trust or other agreement on the part of Foster to affect his apparent legal title by foreclosure proceedings to the lands covered by the mortgages, and the evidence was received, subject to their exception. They also claimed that the conditional judgments rendered were conclusive evidence of the amounts due upon the mortgages upon which suits were brought, and excepted to all parol evidence received upon this point.</p> <p>The deposition of Moses Fellows was taken in behalf of the plaintiff and offered in evidence. The plaintiff claimed that it was admissible, upon the ground that,.before the suit was brought, the executors had settled their account as such, accepted their appointment as trustees, and the suit was against them as such, and the statute did not apply. The master ruled, that, as the suit was founded upon an alleged agreement of the testator, it was necessarily against the defendants, Foster and Clough, as executors, and the statute did apply. The plaintiff excepted. The plaintiff claimed, also, that it was admissible on the ground that Foster was his attorney. The master ruled that so much of the deposition as related to agreements or consultations between Fellows and Foster, when no other party was present who could be called as a witness, was inadmissible, either as a matter of right or discretion, to prevent injustice; but that other parts of the deposition might be read. The plaintiff excepted. A small part of the deposition was read under this ruling. One question and answer related to a conversation with E. J. M. Hale, in which he testified in substance that Hale said, if he would find some one to take the Merrimack block for his benefit, $10,000 mig'ht remain as long as he liked. The next question offered to be read was as follows: “ What, if anything, did you do next in consequence of this proposition of Mr. Hale?” The answer detailed an interview with Mr. Foster, and was excluded. Int. 17 was as follows: “After Mr. Foster began to collect the rents of the Merrimack block, when, if at all, and how often, were you upon the premises, and for what purpose, and in what character and capacity was he there?” It'was excluded. The plaintiff excepted to these rulings.</p> <p>After a large part of the evidence in the, case had been introduced, the plaintiff asked leave to amend his bill. The defendants objected, and the master declined to consider the propriety of the amendment under his commission, and refers the same to the court. The amendment or amended bill, in substance, claimed relief upon the ground that the estate was insolvent, and the conveyances fraudulent as to creditors. It appeared that the administrator found personal estate amounting to $700 or $800 in value, and no other estate except the real estate'at Goff’s Falls embraced in the mortgage. The estate was administered as insolvent, and claims to the amount of $1,500 to $2,000, besides the claims made by the Foster estate, were proved. There was no evidence when these claims originated. It was not claimed that there was any further evidence upon the alleged fraudulent character of the title of Foster; and the master finds, upon the evidence before him, that the title of Foster to the real estate in Hillsborough and Rockingham counties, obtained by the foreclosures, was not fraudulent as to creditors. He suggests that the allowance of the amendment might vary the rule for determining the amount due upon the mortgage upon the homestead at Goff’s Falls. The records and written instruments offered in evidence are made a part of this report, for the purpose of reference, so far as they may be material in determining any questions of law arising upon this report.</p> <p>Copy of release:</p> <p>“ Know all men by these presents, that I, Moses Fellows, of Manchester, in the county of Hillsborough and state of New Hampshire, in consideration of two hundred and fifty dollars to me paid by Herman Foster of said Manchester, the receipt whereof I do hereby acknowledge, have remised, released, and forever quitclaimed for me, my heirs, executors, and administrators, and by these presents do remise, release, and forever quitclaim unto said Foster, his heirs, executors, and administrators, all and all manner of actions, cause and causes of actions, suits, bills, bonds, writings, obligations,. debts, deeds, duties, reckonings, accounts, sum and sums of money, judgments, executions, extents, quarrels, controversies, trespasses, damages, and demands whatsoever, both at law and in equity, or otherwise howsoever, which against him, the said Foster, I ever had, now have, or which my heirs, executors, or administrators can, shall, or may have, claim, challenge, or demand for or by reason or reasons or means of any act, matter, cause or thing from the beginning of the world to the day of the date of these presents.</p> <p>“ In witness whereof I have hereto set my hand and seal the thirteenth day of October, A. D. 1874.</p> <p>“ Signed, sealed, and delivered</p> <p>in presence of (Signed) Moses Fellows, (seal)</p> <p>L. B. Clough,</p> <p>F. R. French.”</p> <p>Upon the coming in of the report, the defendants moved for judgment establishing the foreclosures reported by the master. The plaintiff resisted the motion upon grounds appearing on the face of the report, and moved to set it aside because of erroneous rulings of the master, and because of his refusing, or omitting, to find material facts agreeably to the plaintiff’s written request. In support of his motion the plaintiff also made specific objections to the exclusion-of Fellows’s deposition; to the conclusion of the master that the city mortgage was foreclosed, and that there had been a foreclosure of the Hale, or Montgomery, mortgage; to the declination of the master to find the amount due upon the mortgages assigned by Hale, or upon the city mortgages, or the value of the property covered by them respectively, or at what times at the then rentals these incumbrances would be paid off; and because the master declines to make any finding of how much, if anything, is due on the Ira Clough mortgage, “ until the legal principles involved have been determined by the court.”</p>

Trespass, for taking, carrying away, and converting ten loads of the plaintiff’s ice from Harbor pond in Nashua.

Bill in Equity, to reform a deed. January 6, 1868, Francis B. Ayer made and delivered to the plaintiffs a warranty deed of lot No. 1, on a certain plan of lots. At the time of making the deed Ayer pointed out to the plaintiffs lot No. 2, adjacent to lot 1, as the land he was selling and conveying to them.

Petition to be discharged from the asylum for the insane. Facts found by a justice of this court, to whom the petition was presented, and by whom it was adjourned into the law term, August 29, 1888. At the March term, 1888, the petitioner was convicted of an assault upon an officer, sentenced to the house of correction for three months, and committed. May 18, 1888, upon the petition of the jailer, representing that McQuinn was insane, he was committed to the asylum.

<p>Upon a bill in equity against an executor to set aside conveyances made by the testator in fraud of his creditors, the plaintiff, prevailing, has execution for costs against the goods or estate of the deceased.</p>

Case, for injuries received by the plaintiff from falling down the steps of an unguarded stone stairway leading from the sidewalk to the basement of a building on Main street in Newport village. There was evidence tending to show that the sidewalk at the place of the injury was never laid out, but that it had become a sidewalk and part of the highway by dedication and long use.

<p>The question whether, on petition of an administrator, the probate court should grant license for the sale of the real estate of the intestate for the payment of debts is determinable on the administrator’s petition in the probate court, and not on a bill in equity.</p>

<p>In an action against a town for damage from a defective highway, the defendant cannot object that the petition upon which the highway was laid out was insufficient in form.</p> <p>Whether the plaintiff was a traveller at the time of the injury will not be submitted to the jury, when there is no' evidence upon which it is competent for the jury to find he was not a traveller.</p> <p>Complaints of pain, etc., made by the plaintiff to his attending physician after the commencement of the action may be admitted in evidence.</p> <p>Upon the return of a verdict the court may inquire of the jury as to the grounds upon which they proceeded in making up their verdict, for the purpose of ascertaining whether the case has been properly tried.</p>

Assumpsit, to recover for labor at an agreed price. Facts found by the court. The plaintiff engaged in the service of the defendants, knowing that one of their posted rules was, “Persons wishing to leave our employ will give ten days’ notice, or forfeit ten days’ pay,” and that the rule was enforced or not as the defendants saw fit, but generally was not enforced. The plaintiff left without giving notice.

<p>A judgment of a sister state, based upon the statute of limitations alone, is a bar to the maintenance of an action for the same cause here.</p> <p>Assumpsit. Plea, a former adjudication of the subject-matter of the action by the Vermont county court for the county of Essex. A referee found that in 1882 this defendant commenced an action of assumpsit in the Essex county court against this plaintiff; that this plaintiff filed therein, by way of set-off, two items which involved the same matter for which he seeks to recover here, and that at the September term, 1883, judgment was rendered for this defendant on the ground of the statute of limitations alone.</p>

<p>The court does not ordinarily revise findings of fact lawfully made by a referee, or by a judge at the trial term.</p>

Assumpsit, for cigars sold and delivered. Facts agreed. The defendant is the keeper of a saloon and bar in Portsmouth. Cigars were bought by him, in his saloon, of the plaintiff’s agent, who knew that the defendant intended to sell them there in connection with his illegal liquor traffic. The defendant sold some of them, without profit, to promote his liquor business, and gave the rest to his customers for the same purpose.

<p>Possession and improvements by a parol vendee of land entitle him to a decree for specific performance.</p> <p>A widow who waives her right of dower and homestead under the statute takes her distributive share of her husband’s real estate subject to all the claims existing against it, both legal and equitable.</p> <p>No right of dower exists in land which at the time of marriage the husband was under an equitable obligation to convey.</p>

Assumpsit, for goods sold and delivered to the defendant by the deceased and charged by him upon his books of account. The plaintiff did not elect to testify, except to identify the books. The. defendant offered to testify that she did not owe the deceased for the goods. The offer was excluded, and the defendant excepted. The defendant also asked leave to recall the plaintiff, and show by her that the deceased employed a clerk in his store, more or less.

Probate Appeal. Facts agreed. John Johnson, by will, gave his niece, Mary Leavitt, one hundred dollars a year, to be paid to her by his executor each year during her life; and all the residue of his estate he gave to John J. Leavitt,, whom he appointed his executor. The will was proved February 20, 1878, but Leavitt never qualified as executor.. Immediately after proving-the will, Leavitt took possession of the estate, amdl occupied the whole of it until his death in 1881.

<p>A statute which requires that certain persons, before practising dentistry’ shall procure a license, and exempts others of the same class and profession, under similar circumstances, cannot be sustained under the constitution of this state or of the United States.</p>

Bill in Equity, by a trustee, under the will of Theodore Moses, for construction of the will, and direction as to the distribution of trust funds now in his hands. The will gives to Ann A. Moses, daughter of the testator, “ a good and comfortable support during her natural life.” It then gives the interest and income of certain specified sums to each one of his other seven children for life, the principal in each case to go to the children of his said children per stirpes.

Assumpsit, for labor and services performed for the testator, €. A. Merrill, in his lifetime. Trial by jury. Yerdict for the plaintiff. Among the items of the plaintiff’s claim was one for keeping and training a colt belonging to the testator. The defendants claimed that the colt, concerning which the charge was made, belonged to the plaintiff himself.

Assumpsit, on a policy of insurance. The question of the amount of the loss was referred by agreement of the parties, and ,all other defences were waived. Relying upon this agreement, Joseph F. Wiggin advanced to the plaintiff $500, taking as security therefor an assignment of the plaintiff’s interest in the policy.

<p>One of two classes of physicians, differing only in respect to residence, cannot he subjected to the expense of obtaining a license from which the other is exempt.</p>

<p>Leave to file a new and corrected claim for damages against a town for injuries on a highway will he granted if the defect in the original notice occurred through mistake and accident for which the plaintiff was not at fault, and if it appears that manifest injustice would otherwise he done.</p>

Assumpsit, against the executrix of John S. Haines, for money had and received. The plaintiff put in evidence two checks, drawn by him on a bank, payable to and endorsed by said John; and the defendant admitted that John received the amounts of the checks from the plaintiff’s deposit in the bank. One check, dated June '28, 1880, was for $2,110.56, and the other, dated September 31, 1881, was for $560.47. A nonsuit was ordered, and the plaintiff excepted.

<p>No decree of distribution of the assets of an insolvent debtor can be made where none of the claims were proved within one month after the filing of the assignment, and further time was not given by the judge of probate upon cause shown.</p>

Case, against the sheriff of Sullivan county for not attaching property of the Sunapee Saw Mill Company on several writs returnable at the September term, 1885. Facts found by a referee.

Indictment, against Merchant for an assault, October 9, 1887, upon one Brackett, with intent to kill, and against Stone for hiring and procuring Merchant to commit said assault.

<p>Under the general presumption of fact that a retroactive operation of a statute is not intended by the legislature, the abolition of husband’s and wife’s tenancy of entireties is construed not to be applicable to property acquired by them before the abolishing act took effect.</p> <p>Petition eoe Partition, of a farm in Conway. Facts agreed. The farm was conveyed to George P. Stilphen and Nancy, his wife, May 4, 1889. The plaintiff is one of their two children. His claim is, that, at his mother’s death in 1881, one quarter of the farm passed from her to him by descent. George P. died in 1887. By his will, made in 1887, he devised the farm to two of the defendants.</p>

Bill in Equity, by John Kimball, administrator of William Richardson, and by Albert H. Daniels, administrator of Olive T. Richardson, widow of William, to obtain the direction of the court for the performance of their duties. The defendants are the New Hampshire Bible Society, the trustees of Phillips Andover Academy, and heirs of Mr. Richardson (his nephews and nieces). Facts agreed.

<p>What passes by force of a residuary clause in a will is that which remains after satisfying all legal demands against the estate, including legacies and devises anywhere mentioned in the will.</p>

Trespass, against the defendant, a deputy sheriff, for taking on a writ against tlie plaintiff, beef and other meats claimed to be exempt from attachment. The plaintiff is a dealer in meats, buying at wholesale and selling from his cart at retail. The meats in question were bought by him for the purpose of selling them, and at the time when they were taken he was engaged in selling and offering them for sale.

Assumpsit, upon a written contract dated. April 1, 1886, wherein the defendant agreed to pay the plaintiff $2,500 in one year from date, or as soon thereafter as satisfactory arrangements could be made, for a certain piece of land in Concord, “provided said Critchett shall give me a good and sufficient warrantee deed of said premises at the expiration of said year,” etc. At the date of the contract there were four incumbrances on the premises, viz., two mortgages, one…

Motion to dismiss the action for want of service on the defendant. January 22, 1889, the defendant’s estate was attached on the writ, but personal service was not made on him until March 13,'1889. Between January 22 and March 13 the plaintiff died. His administrator appears and prosecutes the suit. The motion was denied, and the defendant excepted.

Assumpsit, for not accepting and paying for a quantity of wood according to a contract in writing between the plaintiff and the defendant, made Aug. 1, 1882. By the terms of the contract the wood was to be dry, hard wood, not less than three inches in diameter. Facts found by a referee.

Assumpsit, upon a note for $500. Facts agreed. Heman San-born, while on his death-bed, and expecting to die within a short time, and only a few hours before his death, made the note in suit, payable to the plaintiff, his son, on demand, after his decease, and placed it in the hands of one Robinson, with instructions to keep it until six months after Heman’s death, or until his executors had got -together sufficient funds to pay it without inconvenience and trouble, and then…

<p>Assumpsit, on the promissory note of C. and J. C. Gage and the defendant for $2,000, dated December 25, 1874, and payable to the plaintiff on demand. Writ dated September 14, 1888. Plea, the statute of limitations; replication, a new promise.</p> <p>On the note are the following endorsements : Oct. 12, 1875, one-year’s interest; Jan. 3, 1877, one year’s interest; Dec. 21, 1877,, one year’s interest; Dec. 23, 1878, one year’s interest. “Oct. 5, 1881, received of Penacook Savings Bank $150. Jan. 20, 1882,, received of Penacook Savings Bank $150. Jan. 9, 1883, received on the within note $100. Nov. 28, 1883, received of Penacook Savings Bank $125. Dec. 2, 1884, received of S. F. Brown, assignee, $70. Dec. 2, 1885, received of assignee of Penacook Savings Bank $1,000, paid in accordance with the report of the commissioner.”</p> <p>All the endorsements after 1878 (except that of Nov. 28, 1883)-were made by the defendant, and the money was paid by him to the plaintiff. He was, and the plaintiff knew that he was, a surety for C. & J. C. Gage.</p> <p>May 19,1877, C. & J. 0. Gage gave the defendant a mortgage to indemnify him for his liability as surety on a large number of ■notes, including the note in suit; and to secure their payment, June 25, 1877, the defendant assigned the mortgage to the Pena-cook Savings Bank, which then held all the secured notes except the plaintiff’s note and one other, “ to be held by said bank for the same purposes and. to secure the same debts and liabilities for which the same was made, and for which I have hitherto held the same.” The bank foreclosed the mortgage, sold the property, and applied the avails proportionally to the payment of the notes secured by it. All the moneys paid by the defendant to the plaintiff were the proceeds of this property. The defendant was an officer of the bank, and in that capacity paid the money to the plaintiff.</p> <p>Whether the plaintiff knew the source from which the money paid to her was obtained, and that the defendant in making the payments was acting in behalf of and as an officer of the bank, were questions in dispute.</p> <p>The court ruled that whether she knew those facts or not, the payments were evidence competent to be considered by the jury as tending to show a new promise by the defendant, and that on this evidence alone the jury might find such promise. The defendant excepted, claiming that they were not competent evidence in either case.</p> <p>If the ruling is correct, there is to be judgment for the plaintiff; otherwise the case is to stand for trial without prejudice to either party from any statement of fact herein contained.</p>

Bill in Equity', to reform a certificate of membership issued by the defendants to Gigar, the plaintiff’s intestate, by making it payable to the plaintiff. Facts found by the court.

Petition, for abatement of taxes assessed in 1887. July 17, 1886, the town voted that “the town exempt the Franklin Needle Company from taxation for the term of ten years on any establishment which may be erected by them, and the capital used in operating the same, for the manufacture of cotton, wool, wood, iron, or any other material, providing the sum of $10,000 be invested in such establishment, and capital operating the same.” Aug. 10, 1886, the plaintiffs, on the faith'…

Appeal, from the decision of the commissioner, disallowing the testator’s promissory note for $1,500, dated March 26, 1868, and payable to the plaintiff on demand, with interest annually. Plea, the general issue, with the statute of limitations; replication, a new promise. Verdict for the defendants.

Assumpsit, for money had and received, against “copartners doing business in the name of The Mendocino Flume and Mining Company.” Facts found by a referee. The defendants are members of a company which Mann and others undertook to organize as a corporation of that name under Gen. Laws, e. 152, and which is a corporation defacto.

Assumpsit, for goods sold and delivered to the defendant’s wife. Facts agreed. Before the delivery of the goods the defendant had separated from his wife, leaving her at his house without providing for her support, and had filed a libel for divorce alleging extreme cruelty.

Case, for selling chattels mortgaged by the plaintiff to the defendant before condition broken, with a count in trover for the Robie horse and a dump-cart. Writ dated July 13, 1886. April 20, 1886, the plaintiff executed and delivered to the defendant a mortgage of a gray horse, a black horse, and other chattels to secure the payment of his promissory note of that date for $336, payable to the defendant or order six months from date with interest annually.

Writ oe Entry, to foreclose a mortgage. After the decision reported in 64 N. H. 385 was rendered, the plaintiff filed a surrejoinder, alleging that one of the notes secured by the mortgage was not included in the former conditional judgment thereon. The defendant demurred. The plaintiff moved to bring forward the former action for the correction of the judgment. Facts found by the court.

Bill in Equity, for an injunction to restrain the defendants, as selectmen of Winchester, from assessing and collecting a tax and building a school-house. The facts were found at length by a justice of the court upon a hearing for a temporary injunction soon after the filing of the bill.

Petition, for an injunction to restrain the defendants from floating logs down the river called the North Branch, which flows through Grantham, Croydon, a part of Newport, and unites with Sugar river at North Newport. The stream is small, and has, for a part of the way, a heavy fall and a very rocky bed. No logs were ever floated down past the plaintiffs’ premises until the spring of 1888.

Assumpsit, for cigars. Facts found by the court. About December 8,1887, R. A. St. Clair, agent for the plaintiff, who deals in cigars and resides in Lowell, called on the defendant at his hotel in Sunapee and solicited trade. He had authority only to take orders for cigars, none to receive payment in money or otherwise. The defendant knew that he was the plaintiff’s agent, but did not know the extent or limit of his authority, or that he was not authorized to receive payment.

Petition, for a writ of certiorari. Facts agreed. September 3, 1887, Sylvester, being prosecuted in tbe police court of Little-ton for being a common seller of spirituous liquor, pleaded guilty, and was sentenced to pay a fine of $100 and costs, and to be committed to jail one day, with an agreement made by him and the complainant, and assented to by the court, that tbe sentence should not be enforced while be did not sell intoxicating liquor.

Bill in Equity, asking that the defendants be required to execute to the plaintiff a conveyance of certain real estate known as the Glynn House, in Lisbon, according to a written contract between the parties made May 11, 1888. Facts found by the court.

Motion, by the defendants, that the cause be tried by the court or by a referee, on the ground that the value in controversy does not exceed $100, and the title to real estate is not concerned, alleging that the plaintiff fixed the ad damnum and specification at a sum exceeding $100 for the sole purpose of depriving them of their right to have the cause tried by the court or by a referee.

<p>Payments of usurious interest upon a note cannot be recalled by the payer after the lapse of six years, and applied upon the principal.</p>

Writ oe Entry, to foreclose a mortgage given by the defendant to the plaintiffs’ testator, James Crawford, to secure a note dated January 1, 1872, for $2,175, upon which there was due at his decease over $4,000. Crawford, by his will, gave the defendant a legacy of $4,000, and died June 27, 1884. At the time of his decease he held several unsecured notes, amounting to nearly $500, against the defendant, which are now in the hands of the plaintiffs as executors.

Case, for personal injuries from a defective highway. Facts agreed. The plaintiff sent by mail a notice of her injuries, &c., to the town-clerk, which was received, and the chairman of the selectmen being present the clerk gave him the notice, which he read and immediately returned to the clerk. This was the only notice given to the town.

Replevin, for a piano. Facts found by the court. July 21, 1886, the defendant’s agent, one Magoun, made a conditional sale of the piano in question to one Foster, and took from Foster a note for the price containing a printed provision that the piano should “ remain the property of A. L. Bailey, or bearer, until this note is paid.” A large number of small payments.were from time to time made on the note, so that at the time this suit was commenced there remained due on it…

Assumpsit, to recover the price of a quantity of wood. Facts found by a referee. In the fall of 1886, the defendant, who owned and was operating a paper-mill at Lancaster, made a verbal contract with the plaintiff for 300 cords of wood, or as near that amount as he could deliver, at $1.75 per cord. The defendant showed the plaintiff the places, in the shed at the mill and outside the shed in the field, where he wished to have the wood piled.

Assumpsit, to recover four promissory notes given by tbe defendant to tbe plaintiff on and before March 24,1884, for $5,500 with interest. The writ was dated March 12, 1888, and served by attachment of property March 14 and 15.

Appeal, from a decree of the judge of probate ordering distribution of all the property of Sleeper, an insolvent, who filed an assignment August 9, 1887. The plaintiff is a creditor residing in Massachusetts, and his name is in the list of creditors field by Sleeper. Due notice was given the plaintiff and other creditors.

In Equity. Demurrer to the bill. Allegations of the bill: Mrs. Young died in Massachusetts May 7, 1889, intestate, owning land in this county, and leaving neither issue nor husband. The plaintiffs are her next of kin by blood, and are tenants in common of the land as her heirs unless the defendant has a better title. The defendant was legally adopted in Massachusetts, April 28, 1884, by Warren H. Holt, wbo was the son and only issue o£ Mrs. Young.

Indictment, for the murder of Henry T. Whitehouse, who was assistant engineer at the electric light station in Portsmouth, and was murdered May 27, 1888. The defendant was engineer at the same station until some time in February, 1888. • Walter Raitt testified : “About the first of last May I met the defendant, and asked him if he was at the light station now. He said no, he had had some trouble about things being stole.

<p>It is no ground for a new trial in a capital case that the jury, while the trial was going on, in taking a ride for exercise by permission of the court under the charge of officers, were driven by or near the place of the murder (a view having been taken earlier in the trial) when it appears that no view or examination was made of any locality connected with the trial, nor any allusion to the trial or the evidence in the case, by any one.</p>

Case, for malicious prosecution. The plaintiff claimed that the defendant wilfully and maliciously procured an indictment against him for larceny.

Bill in Equity, by the trustees of the Adams Female Academy, asking for leave to sell certain real estate, and to apply the whole income of the institution, according to an act of the legislature, to the support of a public school in connection with the town of Derry.

At the October trial term, 1889, the defendant appeared and moved for judgment, because the procedure, by amending the plaintiff’s declaration in the action at law by filing a bill in chanc.ery in and as amendment thereof, is not due process of law within the meaning of art. 1 of the fourteenth amendment to the federal constitution. Also, that the trustees be discharged, because the plaintiff having a decree in equity against the defendant, the action at law was dead.

<p>To revoke a testamentary disposition is to annul it.</p> <p>An alteration of a mil by the testator, which would have the effect to change his testamentary disposition of his estate, must be authenticated by an observance of the statutory requirements for the execution of wills.</p> <p>When an intention to make disposition of the testator’s whole estate appears from the will, as well after as before an imperfectly executed alteration, such an attempted alteration will not be given the effect to leave a portion of the estate undisposed of.</p>

Case, for injuries to the plaintiffs’ gas pipes, caused by the defendant’s negligence in constructing a sewer, with a count in trespass for the same 'injuries’.

Bill in Equity, for an injunction against a severance of a steam-boiler, smoke-stack, engine, and 'fixtures from a bobbin mill. Facts agreed. Waterhouse & Frost bought the machinery of the defendant, and gave him a chattel mortgage of it to secure the payment of the purchase-money. Afterwards, and before June 20, 1887, they affixed it to their mill in the usual manner.

Attachment, for violation of an injunction decree made with the defendant’s written consent, under c. 77, Laws 1887. The defendant took exceptions, based on a claim that his consent was obtained by duress, intimidation, and threats of criminal prosecution, and that the petition for the injunction was defective.

Insolvency Appeal. The controversy arises between creditors of the defendant, Weeks, having attachments of his property made October 5, 1888, and other creditors who filed a petition against him in insolvency, February 1, 1889; and the only question is, whether Weeks, at the time of the petition, was a resident of this state so as to give the probate court jurisdiction of the insolvency proceedings.

<p>No appeal lies fróm the judgment of a police court imposing sentence upon one who had previously pleaded nolo contendere to a complaint for being a common seller of liquor, sentence having been suspended at the time the plea was entered on condition that the defendant quit the unlawful business.</p> <p>In such a case the penalty is inflicted, not for a breach by the defendant of his agreement, but for the offence of violating the law of which he stands convicted by his plea.</p>

Bill in Equity, alleging that April 12, 1881, the defendant bank being the holder of an overdue promissory note signed by one Dearborn, payable to the order of the plaintiff and by him endorsed, waiving demand and notice, and which had been discounted by it for the plaintiff, brought suit against the plaintiff upon his liability as endorser, and October 5, 1881, obtained judgment for $250.11 damages, and costs, $4.57, and October 29, 1881, took out execution therefor against…

Trespass, for breaking and entering Pitchwood island in Lake Winnipiseogee. The plaintiffs claimed title to the island under the will of their late father, Augustus Doe, who died August 1, 1887, and that he acquired title to it by adverse possession before his death. The defendant justified under a license from Moses B. Gordon, who claimed title under an unrecorded deed from Francis A. Bowman to William Gordon, dated September 10, 1818.

Indictment, alleging that Merchant made an assault upon Brackett with a club, with intent to kill and slay, and charging-the defendant as an accessory before the fact. Motion to quash..

Bill in Equity, to restrain the defendants from maintaining a dam across the Connecticut river for manufacturing purposes at Olcott Falls in Lebanon, without providing suitable sluiceways for the passage of logs floated by the plaintiffs down said river. The facts sufficiently appear in the arguments of counsel and the opinion of the court.

Thebe actions, originally entered in the trial term. The first and second are bills in equity, and the third is a real action. The first haying been removed to the circuit court of the United States, they were all entered and tried in the law term of this court, under the following agreement: Merrimack ss. Supreme Court. June Law Term, 1888.

This was an action of trover for sundry articles alleged to be the property of the plaintiffs. The cause was submitted to the decision of the court upon a statement of facts, but as the facts are all stated in the opinion .of the court, it is deemed unnecessary to detail them here.

Assumpsit, for labor. The plaintiff lived with the defendant, and worked on his farm from June, 1866, when he was twelve years old, till November, 1870, when he left of his own accord. His father and mother are both living. Before 1866 his father abandoned his family, including the plaintiff, and since that time has made no provision for their support, exercised no control over them, interfered with them in no way, and they have heard' very little of him.

Trespass qu. cl. The parties agreed upon the following facts for the opinion of the court: October 29, 1863, the plaintiff, being the owner of the locus in quo, made a mortgage thereof to one Cole, in which her husband joined, to secure a note for $1,000.

Assumpsit, upon the following subscription-paper, to which the defendant’s name was subscribed for eight shares: “ The undersigned agree to pay the sums of money set against our names respectively to Royal H. Porter, George W. Tilden, and Henry O. Cooledge [the plaintiffs], who are hereby appointed trustees for the purpose of holding, managing, and expending the money hereby subscribed, and the property which may be purchased therewith, or in which the same may be invested.

Assumpsit, for the support of one Hall, a pauper. Facts found by a referee. Hall has no settlement in Sunapee, and none in any town in this state unless he has one in Lempster. He was duly assessed for his poll and some other property for six years next preceding 1859, and for all those years he paid all taxes thus assessed upon him.

Trover, for two horses. The plaintiff’s father and one Humphrey formerly owned farms in Langdon adjoining each other, the line between them extending some one hundred rods; and they divided the fence on this line, Humphrey taking the north half and Walker the southerly half to make and keep in repair. This division was in writing, was in; proper form, and no objection was made to its validity as between the original parties.

<p>Indictment, under G. L., c. 282, s. 14, for killing John E. Willis. The defendant is proprietor of the railroad running through Milan. January 20, 1877, Willis was struck by the defendant’s locomotive, near the West Milan station, and killed. On that day, and for a long time before and ever since, the defendant run and operated a train of freight cars with a passenger car attached, called a mixed train. The train usually consisted of from twenty to twenty-five freight cars, besides the van, locomotive, and passenger car, and passed the West Milan station, going east, at 1 p. m. On the day in question, there were in the train twenty freight cars, besides the van and passenger car. This train did not stop at West Milan unless signalled for passengers, or there were passengers to leave, which did not occur more than three or four times a week. The grade of the road where it passes the station rises toward the east at about sixty feet to the mile, and, that the trains might start without first running back, it was customary to run the freight trains, including this mixed train, past the station before stopping, to a point east of the station, where the grade was less, or nothing. The mixed train generally stopped so that the passenger car at the rear was near the station, or somewhere between the, station and a point three hundred and fifty or four hundred feet further east, when passengers taking this train would walk up the railroad to where the car stopped. Sometimes they would go up the road some distance before the train arrived, and wait for it. Sometimes they were requested by the agent at the station to go before the train came, so as not to delay it in ■waiting for them to come up. A side track, at a distance of eight feet from the main track, extended from a point some four hundred feet west of the station to an equal distance east of the station. In passing the station, and for some distance beyond, the track curved sharply to the north. A highway crossed the track from a point just east of the platform of the station-house, diagonally, to the south-east, on the north side of the main track. About ninety-five feet east of the highway crossing was a hand-car house, with planking extending from its doors to the main track, and on about the same level. The snow was cleared from the main and side tracks, and no car was standing on the side track. North of the main track, and for a distance of about eighty feet east of the crossing, the snow had been shovelled out down to near the sleepers for a space of forty-four inches in width from the north track, leaving a bank of snow outside nearly perpendicular, and from three to three and a half feet high. On that day the snow was soft, and the evidence was that a man could “without difficulty” step upon and over the snow-bank. Further east the snow was as left by the snow-plow, the level space being twenty-six inches wide from the track, and the bank being more sloping than where it had been shovelled out. At the hand-car house, a path from three to five feet wide had been shovelled from the track to the easternmost door. The snow between the main and side tracks was from one to one and a half feet in depth, being deepest midway between the tracks. On the day of the accident the mixed train was on time. Willis came to the station-house a half hour before the train, and requested the agent to signal it, as he wished to go upon it. He bought no ticket. When the whistle of the train was heard, Willis and the agent went out upon the .platform, the agent going a little west to set the signal, and Willis starting east. The agent told Willis that the train would have to go by the station in order to start, but that Willis could wait till the train stopped, and then go up and get on. He passed upon the main track at the highway crossing when the train was near the west switch, about six hundred feet from him, and in sight. He walked on between the rails of the main track some sixty feet, when the engineer gave the danger signals, being several short, shrieking whistles, the locomotive then being near the east end of the station-house. When these signals were given, Willis turned his head, looked back, then went forward and turned from the track to the north side, crossing outside the north rail at a point about thirty feet west' of the hand-car house, and then turned easterly and went on in the same direction, keeping within eighteen inches of the rail. When near the west end of the hand-car house, he was struck by the front cross beam of the locomotive, thrown forward against the snow-bank, fell or rolled down beneath the train, and was killed. The end of the beam which struck him was about eighteen inches outside the rail. The -bell of the locomotive was rung while passing the station and crossing, and for some distance beyond. The engineer and fireman saw Willis on the track before the danger signals were given. After they were given and Willis turned from the track, the engineer could not see him from his position on account of the curve in the road, the smoke-stack and other projections upon the locomotive. The state’s evidence tended to show that the train was running past the station at from fifteen to eighteen miles an hour. The defendant’s evidence tended to show five to eight miles an hour. An order of the superintendent for the use of train hands forbade the running of trains past stations and crossings at a greater speed than six miles an hour. No attempt was made to stop the train until Willis was struck. There was no evidence that the train was intentionally, maliciously, or wantonly run upon Willis. For a distance of twenty feet after Willis crossed to the outside of the rails he was within the space where the snow had been shovelled out for a width of forty-four inches. For the remaining twelve or fourteen feet before he was struck he w°as in the narrower space of twenty-six inches wide with a more sloping snow-bank. At the time he went upon the track the train was in sight approaching, and from that time until the accident there was no obstruction to hide the train from him. The distance apart of the last three or four tracks, which he made, was greater than that of the others, the longest space being three feet seven inches, from which it is inferred that he was going faster just before he was hit than before. Willis was fortymiine years old, six feet two inches in height, and weighed one hundred and seventy pounds. He was in full health and strength, bodily and mentally. He was a deputy sheriff, and at the time of the accident was on the business of his office. He was acquainted with the station at West Milan and the surroundings, and with the train he proposed to take and the way it was operated there.</p> <p>At the close of the plaintiff’s evidence, the defendant moved for a verdict on the ground that there was no evidence of care on the part of Willis. The motion was denied, and the defendant excepted.</p>

<p>Assumpsit and Trover. Tried by the court, who found the facts and assessed damages. The defendant excepted.</p>

Assumpsit, by the guardian of two children of Joseph S. Cowan, deceased, upon a certificate of membership issued to Joseph by the defendants, in which they promised to pay “ within sixty days after due proof of” his death “a sum equal to the amount received from one death assessment, but not to exceed $5,000.” The defendants demurred.

Bill in Equity, alleging that the plaintiff’s intestate was killed by the negligence of the defendants; that she was prevented from giving the notice required by Laws of 1887, c. 71, s. 2, within the time limited, by acts of the defendants’ agents and attorneys, and praying that she'be now allowed to give the required notice. The bill was dismissed upon a hearing, and the plaintiff filed a bill of exceptions..

<p>Case, for injuries resulting in the death of the plaintiff’s intestate, a workman in the employ of the defendants.</p>

. Assumpsit, to recover moneys collected by the defendant as the plaintiffs’ agent. The court stated the accounts between the parties, finding $47.75 due to the defendant, and ordered judgment in his favor for that sum with interest from the date of the writ, subject to the plaintiffs’ exception.