Volume 7 — New Hampshire Reports

This was a formed on in remainder, and the cause was submitted to the decision of the court upon the following statement of facts.

Assumpsit. The first count was upon an account annexed to the writ. The second count was for money had and received. The cause was submitted to an auditor, who reported the following facts. On the 25th of August, 1829, the defendant sailed from Portsmouth, in this State, as master of the ship Izette, belonging to Abram Shaw, on a voyage to Virginia, thence to France, and back to the United States.

Debt upon a bond dated February 18, 1809, with a condition as follows: “ The condition of the above obligation “is such that whereas the said John Rogers has been, by “ the President and Directors of the Exeter Bank, duly “appointed cashier of said Bank — now if the said Rogers “shall faithfully discharge the duties of said office, and shall “account for, pay and deliver to, the said President and'Directors when thereto by them requested, all monies or “other property…

Bill in Chanceby, praying for an injunction to restrain the defendants from erecting a bridge across the Piscataqua river at any place between Nanny’s island and Walton’s point.

Writ of entry for certain lands in Brentwood, which the demandants, J. Robinson, T. S. Robinson and D. Parsh-ley, claimed to recover as assignees of a mortgage made and executed by one Stephen Leavitt to the Trustees of Phillips Exeter Academy, and by them assigned to the demandants.

Case. The first count alleged, in substance, that on the 30th April, 1831, the defendants, being selectmen of the town of Derry, called upon the plaintiff, an inhabitant of that town, for an invoice… Held: justly liable to be taxed for the amount which had been paid upon them. He then had an interest in the bank .stock to the extent of $7,800 for which he ought to have been taxed. But whether the defendants set down too much or too little, by way of doomage, is immaterial.

Error brought to reverse a judgment of the court of common pleas, for the county of Rockingham, March term, 1833 ; rendered in an action, in which the Judge of Probate was plaintiff, and said Emery and others, executors of the will of John Taylor Gilman, were defendants ; founded upon a bond executed by Nathaniel Gilman as principal, and said John Taylor Gilman and John Rogers as sureties, to Nathaniel Rogers, Esq. judge of probate for said county ; with a condition that…

Assumpsit. The declaration alleged that the defendant, being a common carrier, received of the plaintiff $148, at Boston, to be transported, for hire, from that place to Portsmouth, and there delivered to the plaintiff, and that the defendant had failed to deliver it. There was also a count for money had and received.

This was an action of trespass, for breaking and entering the close of the plaintiffs in Windham, and carrying away a bark mill. The cause was tried upon the general issue, — when it appeared in evidence that^one David Campbell, being seized of the locus in quo, on the 12th of April, 1830, conveyed the same to the plaintiffs, and that on the 15th of April, 1831, the defendants entered and removed a hopper belonging to a bark mill on the premises.

This was an action of case in the nature of waste. The declaration alleged that one Margaret Forsaith, being seized of a certain close in Chester, for the term of her life, and. the plaintiff being seized of the reversion, that the defendant, on the 10th of June, 1832, entered the close, and cut down and carried away eighty hemlock trees, to the injury of the plaintiff’s reversionary interest. There was also a count in trover for the trees.

Debt upon a replevin bond, dated November 20, 1827, the condition of which was to prosecute the suit in replevin until the same was ended, and pay such costs and damages as the defendant in replevin might recover.

Assumpsit for money paid. From the report of a referee, who, by agreement of the parties, stated the facts, it appeared that on August 14, 1827, Marsh, the defendant, and Sher-burne and Blunt, Robert Blunt, and Pickering the plaintiff, executed a joint and several note, payable to the Piscataqua Bank for $1000, in sixty days and grace.

Libel, for a divorce, alleging extreme cruelty. The evidence on the part of the libellant proved, that the husband had at different times threatened to take her life ; that he had ceased to provide for her support, and treated her harshly and with neglect in sickness ; and there was also evidence of circumstances tending to show a reasonable apprehension that if she cohabited with him she might be subjected to disease.

This case was assumpsit against the defendant as endorser of two promissory notes, dated April 17th, 1832. The notes were made and signed at Portsmouth, by William Walker, a son of the defendant, and were drawn payable to the defendant, or his order, and by him endorsed to the plaintiff. One of said notes was payable in twelve months from its date, the other in eighteen months.

This was assumpsit founded on a note. The parties agree that the note was made by the defendant to one Daniel Pinkham, for the sum of $ 150, and that it was agreed by said Pinkham and the defendant that the said Pinkham should get said note discounted at some hank, and should retain one half of the amount received, and let the defendant have the remainder : That said Pinkham procured the discount of the note at the New-Hampshire Bank, and retained one half of the proceeds of…

Trespass de bonis aspertatis. The defendant attempted to justify the taking of the goods, as surveyor of highways in Ossipee, for a tax assessed upon the plaintiff in that town in the year 1830. The cause was submitted to the determination of the court upon the following facts : At the annual meeting of the town of Ossipee, in March, 1829, E. W., J. S., and W. S. were chosen selectmen, took the oath of office, and acted as selectmen that year.

Trespass for taking a chaise of the plaintiff, on the 2d of July, 1832. The defendant pleaded the general issue, and gape notice that he should justify the taking of the chaise as a distress for taxes assessed upon the plaintiff in the town of Middleton, for the year 1831, he, the defendant, being collector of taxes. The cause was tried at January term, 1833.

Tkespass on the case. The declaration alleged, that the plaintiff, on the 1st January. 1823, was, and ever since had been, seized and possessed of a certain tract of land in Strafford, in this comity, adjoining Bow pond river.

Case. The first count in the declaration, alleged that the plaintiff had delivered to the defendant a certain mare of the plaintiff, to be safely kept and boarded, and that the defendant, while the mare was in his keeping, by his servant, so carelessly, negligently, and with such unreasonable swiftness, rode the said mare, that she ran and struck with great violence against a horse and chaise in the highway, whereby she was injured, and died.

This was debt oil bond. The defendants, after craving oyer of the bond, and condition thereof, pleaded in abatement to the writ, that one Richard K. Young, who… Held: up the bond, and declared to the- said Mathes, that' he, the said Young, had signed it, and requested -Mathes to witness it. The bond contained the'.usual allegation, “ sealed with our seals,” &e. . On the above facts and testimony, verdict was taken for the plaintiff, and motion made, to--set the same aside.

This was an action of trespass, for breaking and entering the plaintiff’s close, and digging up and carrying away one thousand bushels of the plaintiff’s soil and earth. The defendant plead, 1st, that the locus in quo was a public navigable water, called Sandbornton Bay, from which the adjoining inhabitants have ever had, and ought to have, the right to take and carry away sand and earth ; — on which plea issue was taken to the country.

This was an action upon the case. The declaration alleged, that the plaintiff was seized of a meadow adjoining Nippo Pond, in Barrington, and that the defendant, by means of a dam by him erected upon his own land, across the outlet of the said pond, caused the water to overflow and injure the meadow, from the 30th August, 1830, to the 19th July, 1832, — when this action was commenced.

This was a writ of entry, brought to recover a tract of land in Sandbornton, being part of a tract of land which Benjamin Steele conveyed to Robert Steele, by deed recorded in the register’s office, lib. 46, folio 229.

Assumpsit for the support of R. and S. Pickering, paupers, settled in Newmarket, from the 23d May, 1826, to 1st February, 1832, amounting to $727 12. The action was commenced on the 10th May, 1833. The cause was submitted to the decision of the court upon the following facts. R. Pickering and S. Pickering became paupers on the 4th March, 1826, and have ever since, to the time of their deaths in 1831 or 1832, been supported by the town of Gilford.

.This was an action of assumpsit, on a. note, as follows : “ July 19, 1830. For value received, we, the town of .‘Alton, by W.. Hayes, D. Caverly and H. Hurd, our select- ‘ men, for this purpose duly authorized,'promise James Jew- ‘ ett, to pay him #310 the first day of October next, and 1 interest from l()th March last. W. H-áyes. ) Selectmen- . ' . ■ ■.

Assumpsit upon a promissory note. The defendants filed the general issue, and a brief statement, setting forth that at the court of common pleas, holden in and for the county of York, and State of Maine, February term, 1829, the plaintiff recovered judgment against them, in an action of assumpsit, upon the same note: and on the trial in the common pleas here, they offered in defence a copy of such judgment, rendered upon default, founded upon a promissory note, which it was…

Assumpsit upon a promissory note of the defendant’s testator.

Assumpsit — on appeal from the decision of the commissioner of insolvency, on the estate of William J. Partridge, disallowing the claims of the appellant against said estate. The declaration was founded upon two promissory notes. At the trial in the common pleas, the signature of the intestate to the notes was proved. The defence was, that the consideration of the notes was a sale of lottery tickets by the plaintiff to Partridge, contrary to the statute.

Debt upon a judgment of the court of common pleas. The defendant pleaded in bar, that after the recovery of the judgment the plaintiff sued out execution thereon, and delivered the same to a deputy sheriff to be served, who, before the return day arrested the defendant, and committed him to gaol, and that he remained a prisoner until he was discharged by order of the plaintiff.

Trespass quare clausum fregit. The action was commenced before a justice of the peace. The defendant pleaded the general issue, and the cause came to the cqurt of common pleas, on an appeal from the judgment of the justice.

This was assumpsit against the defendant, as endorser of a note, dated April 1st, 1828, for $88 32, against one Jonathan Brown, drawn payable to the defendant, or his order, in sixty days and grace, and by him endorsed. The writ contained two counts. The first count was in the usual form, against the defendant as endorser of the note, and alleged demand and notice.

This was a writ of entry for a tract of land in Tufton-borough, eighty rods long and two rods wide, formerly laid out by Tuftonborough as a highway. On the trial it appeared that there was formerly a highway adjoining, upon one side, on land of the plaintiff and the land of one Daniel Furnald, the defendant’s grantor, which highway had been long occupied as a public road : but when laid out, or over whose land, it did not appear.

At April term of the court of common pleas in this county, 1832, certain individuals filed a petition, praying that a road might be laid out from Hopkintou, in this county, to Weare, in the county of Hillsborough. At February term of the court of common pleas, 1833, a committee was appointed to lay out the road agreeably to the prayer of the petition, if it should be found expedient.

This was an action of replevin, and was submitted to the court upon the following facts. The defendant, as a surveyor of highways of the town of Pittsfield, distrained a gelding horse, property of the plaintiff, by virtue of a warrant directed to him by the selectmen of said town, and on account of the neglect of the plaintiff to work out Ids highway tax after being duly notified.

Indictment fob Murder. The prisoner was tried at the court of common pleas, September term, 1834. and having been found guilty, and his counsel having moved for a new trial, the questions arising upon that motion were reserved for the consideration of this court.

Assumpsit. The declaration contained a count upon a promissory note of Grafton, signed by Lovell Kelton as agent: also counts for money had and received, and money paid. At the trial, in the common pleas, the plaintiffs produced a note, as follows : Febk’y 19,1833. Value received, Town of Grafton promises to pay Town of Andover fifty dollars eighty-two cents, on demand and interest. Lovell Kelton, For the selectmen of Grafton.

Trespass, for breaking and entering the plaintiffs’ close, and carrying away certain hay, rye, &c. The defendant pleaded the general issue, and filed a brief statement, setting forth that, being a -deputy. sheriff, and having an execution against one Andrew' Robertson, who was then in the occupation of said close,.he -entered and took the goods,-which were the property of said Andrew.

Trespass, for taking and carrying away sixty yards of cotton cloth.

Assumpsit. It was alleged in the declaration that the defendant, on the third day of February, 1823, in consideration that the plaintiff, had delivered to the defendant, at his request, a certain account due to the plaintiff from one Charles Greenfield, for the sum of ‡7 50, to be carried by the defendant from Windsor to Henniker, and delivered to one Artemas.Rogers, and paid to the defendant 6⅛ cents for his trouble, promised the plaintiff to carry, and deliver the same…

This was an action- on' the case, for waste. The cause was tried on the general issue at February term, 1834, when it appeared in evidence that Dolly Hardy was the widow of Asa Hardy, deceased,’and that the premises described in the declaration' had been assigned to her as her dower in the estate of the said Asa, the reversion being in'the plaintiff. There was’a dwelling.on the premises, and the said' Dolly was under the guardianship of the defendant. .

In this case the trustee in his disclosure stated that before the 1st June, 1832, Convers was indebted to him on account #4, and in a note for #4,75, dated 26th March, 1831, and payable on demand with interest; that he called upon him for payment; that Convers requested him to take the amount in Convers’ work as a shoemaker, to which he agreed, and under that agreement work was done for the trustee to the amount of $10,76, in the months of June, July and August, 1832.

Assumpsit for money had and received. On trial, it appeared that prior to the 29th of September, 1826, one John Hartshorn was duly appointed executor of the last will of Benjamin Hartshorn, whose estate was decreed to be administered in the insolvent course.

<p>A sheriff cannot seize and sell partnership property, upon an execution against one of the partners, for his private debt. The creditor can have only the right of his debtor, which is an interest in the surplus, after paying the partnership debts.</p> <p>A testator provided in his will, that A. B. should have, hold, and carry on, in a husband-like manner, free of rent, a certain house, store, and other real estate, until the time when the eldest son of the testator should be of age ; and directed that he should be trustee of the testator’s two sons, for the following purposes, to wit : That he should retain in his hands, for their use, all the goods, securities, money and other stock in trade, belonging to said store, during said term — should trade upon the same in his own name, as such trustee, and at the end of the time deliver over to said sons all the original stock then remaining, and one full half of all the profits, and also interest upon a * certain portion of such stock. A. B. accepted the trust, and carried on the ? business; and on the arrival of the eldest son at the age of twenty-one, he executed to said A. B. a power of attorney, authorizing him to continue the business of the store, &c. as he had done under the will, and it was there upon continued until the youngest son became twenty-one. — Held, that this did not constitute a partnership.</p> <p>When a sheriff, on an execution against one, seizes and sells the property of another, the measure of damages is the value of the property ; and if that value is estimated by the sum received by the sheriff, he has no cause of complaint.</p> <p>if there is an error in some particulars in the direction of the court to the jury , but the result of the charge is correct, such error furnishes no ground for a new trial.</p>

Assumpsit. The declaration stated, that the defendant, on the 13th June, A. D. 1833, by his memorandum in writing, in consideration of the promises of the plaintiff therein after expressed, promised the plaintiff to deliver to him, by the first day of September then next, on the landing at Franklin, twenty thousand feet white oak three inch plank, of as good quality, &c., for which the plaintiff promised to pay seventy dollars per thousand, &c.: and although the time for the…

Assumpsit for money paid. The defendant pleaded infancy, and the statute of limitations. To the first, the plaintiff replied that the money was paid for necessaries ; upon which issue was joined: to the second a promise within six years. The writ was dated September 10, 1832.

Debt. The plaintiff alleged in his declaration, that on the 12th October, 1830, he purchased out of the office of the clerk of the common pleas a writ of attachment against C. Redfield and S. Milikin, declaring against them in an action of trespass, quare clausum fregit; that he on the same day delivered the writ to a deputy of the defendant, then sheriff of the county, who arrested the said Redfield and Milikin, and committed them to prison ; that such proceedings were had…

This was a writ of entry, brought to recover a farm in Jaffrey, in which the demandant counted upon his own seizin in fee and in mortgage, and upon a disseizin by the tenant. The cause was tried at April term, 1835, upon tbe general issue, and a verdict taken for the demandant subject to the opinion of the court upon the following case : On the 12th January, 1828, the tenant by deed conveyed the demanded premises to the demandant in fee.

This was assumpsit for a waggon sold and delivered. The cause was tried upon the general issue, at October term, 1834, and a verdict taken for the plaintiff, subject to the opinion of the court upon the following case. The plaintiff, on the 29th March, 1832, sold the waggon to the defendant at auction for $30,25. Immediately after-wards, on the same day, one John Chase bought the waggon of the defendant for $31,25.

This was an action on the case. The substance of the declaration was, that Heaton, the defendant’s deputy, having, on the 27th January, 1825, attached a farm by virtue of a writ in favor of the… Held: that notice to the second attaching officer of a prior attachment of personal property is sufficient to prevent the second attachment. It is not necessary to carry notice home to the plaintiff himself.

Assumpsit on a promissory note, dated the 27th of January, 1825, on which the plaintiff declared that the defendant, in consideration that a fund of one thousand dollars, or upwards, should be raised for the support of the ministry in the Congregational Society in Troy, promised to pay said society twenty-five dollars on demand and interest annually. It was then averred that a fund of one thousand dollars was raised, and that the defendant had due notice of it.

Trespass quare clausum fregit. The defendant pleaded the general issue, and filed a brief statement that the locus in quo was his soil and freehold, and a verdict was taken for the plaintiff, by consent, subject to the opinion of this court upon the following facts. The parties own land adjoining each other, in Walpole, and both derive their title from Benjamin Bellows ; and the deeds through which the plaintiff derives his title appear to cover the land in controversy.

TROver for certain harnesses, saddles and bridles. Upon the trial it appeared that the plaintiff, being the owner of said articles, on the 14th June, 1833, delivered the same to one George Miller, who at the same time executed and delivered to the plaintiff a writing, describing the goods, and affixing prices, and containing a receipt, as follows, viz. : “ Rec’d the above saddling, to sell and account for at the above prices.” About the same time a quantity of English goods…

This was an action of trover for three promissory notes, and was submitted to the decision of the court upon the following facts : On the 11th February, 1834, the plaintiff placed in the hands of the defendant three promissory notes, which were payable to order, to be collected by the defendant. On the 24th February, 1834, one Lemuel Miller commenced an action against this plaintiff, in which this defendant was summoned as trustee.

This ; was an. action for $300, money had and received by the defendant for the use of the plaintiff. The cause was tried upon the general issue at April term, 1835, and a verdict taken for the plaintiff, subject to the opinion of the court upon the following case. On the 6th March, 1834, the defendant, being the owner of certain shares in the Croydon Turnpike Corporation, made and , delivered to, the plaintiff a written memorandum, as follows : “ March 6, 1834.

This was a writ of entry, brought to recover a tract of land in Enfield. The action was commenced on the 19th April, 1833, and was tried upon the general issue at May term, 1834. The demandants gave in evidence the charter of Enfield, which included, as they contended, the demanded premises. The tenant, in answer to this, gave in evidence a copy of a vote of the demandants, by which the demanded premises were conveyed to John Johnson on the 2d December, 1826.

This was a writ of review. Olcott brought an action of assumpsit against Banfill and Carlton, and at May term, 1832, recovered judgment for f650 10 damages, and $73 30 costs of suit. Banfill and Carlton then sued out this writ of review, returnable at November term in the same year.

This was a petition for partition of land in Haverhill, the petitioner alleging that she was seized of three undivided fourth parts. Issue was joined upon the seizin of the petitioner, and the cause tried at the September sittings in this county, 1834.

Debt for money had and received. The cause was submitted to the decision of the court upon the following facts : On the 7th September, 1828, Bunce and one A. Ladd brought a suit in the name of Otis Albee, against Little, on a note for $275, dated December 1, 1826, made by Little, and payable to Albee, but not to his order. The note had been placed in the hands of Bunce and Ladd as collateral security for a debt due to them from Albee.

Martha,Porter, haying made her will, and appointed Heydock, the appellant, executor, died at Hanover, in this county, the place,of her domicil, in the year 1825. .

Debt upon a judgment rendered by the court of common pleas in this county, at February term, 1830, for '■$> 194 90 debt, and $12 07 costs of * suit,. ... The defendant pleaded, 1. Payment on the 22d March, 1833 ; on-which plea issue was joined. 2.

Tbespass for breaking and entering the plaintiff’s close in Littleton, “ bounded easterly by Pamela Wheeler’s land, ‘as occupied by her, southerly by Vespasian Wheeler’s land, ‘and westerly by the road leading from G. W. Wheeler’s ‘ dwelling-house to Samuel Little’s dwelling house,” and with horses, cows, oxen and swine depasturing the grass. The action was commenced before a justice of the peace, where the general issue was' pleaded by the defendant.

. This was an action of trespass, for breaking and ,entering the plaintiff’s close in Grafton, and with cattle doing damage there. . , ‘ .

Trespass for taking and carrying away the plaintiff’s white pine timber. The cause was tried upon the general issue, in the common pleas, and a verdict taken for the plaintiff, subject to the opinion of this court upon the following case. Austin Ladd, being owner of lot number 13, in the first range of seventy aere lots, in Haverhill, executed to the plaintiff a writing in these words— “Haverhill.

Indebitatus assumpsit upon an. account annexed for work and labor., and rye-and Wheat. - It appeared on the trial, that the plaintiff and one.Edward Pickett, in the fall of the . year 1824, took a tract of land belonging to the defendant,- to be sown by them with wheat and rye — -the plaintiff and Pickett to have each one fourth part of the crop, and the defendant the remainder. : In the spring of the year 1825.,. the ground having been prepared and sown with wheat and rye…

Assumpsit upon an account annexed to the writ, for goods, and money. Part of the articles appeared, by the account, to have been delivered to one George Little, and part to one Adams Moore. The case was committed to an auditor, who examined the plaintiff as a witness in chief, in support of his claim. The defendant objected to the admission of the plaintiff as a witness, because said George Little was out of the country, and had been for some time previous.

Complaint filed before a justice of the peace, by D. F. Willoughby, as clerk of the 6th company, 13th regiment of militia, to recover of - the respondent, a private in said company, a fine of three dollars for not attending a regimental muster on the 29th of September, 1832. Plea, not guilty.

This was an action of assumpsit. There were four counts in the declaration. The first count is on a note dated February 12, 1830, for $>1217.04, payable to the plaintiff on demand and interest. The second count is for $>5000 money had, and received.

This was assumpsit, for the support of the defendant’s wife and child from March, 1833, to March, 1834. The cause was tried at the November term of the common pleas, upon the general issue, and a verdict was taken for the plaintiff, subject to the opinion of the, court upon the following case. The defendant is an inhabitant of Rumney, and was married on the 18th May, 1820, and has one child by his wife.

This was a writ of entry, brought to recover a tract of land in Bath, in the county of Grafton. The cause was tried upon the general issue, at May term, 1835.- It appeared in evidence, that L. Pulsifer and H. Wells, being seized of the demanded premises, on the 23d of September. 1812, by deed conveyed the same to Joseph Fi-field in fee. This deed was recorded January 18, 1814.

This was a writ of error, brought to reverse a judgment of this court. It appeared by the record, and the papers filed in the cause, that Wright brought an action of assumpsit against Ford, and Calvin Benton, his trustee, upon certain promissory notes, two of which were alleged to have been made by Ford, to have been payable to J. B., or order, and to have been by him endorsed to the plaintiff.

In this case an auditor was appointed to state the accounts between the supposed trustee, Bosworth, and the principal, Ford, who in his report stated, among other things, the following facts : On the 20th February, 1820, Ford and his wife Anne, being seized in her right of a certain farm in Lebanon, in this county, conveyed the same in fee and in mortgage to P. Parkhurst, to secure a debt due from Ford to Parkhurst.

Assumpsit on a written contract, made by the defendant on the 16th October, 1830, to deliver to the plaintiff, a deputy sheriff, certain goods which the plaintiff had that day attached by virtue of a writ in favor of Ward and Quincy against Abraham Harper. The cause was tried upon the general issue, at November term, 1833.