The exceptions taken by the plaintiff, in the course of the trial, were to the ruling of the judge in the admission and rejection of evidence, and in requiring the plaintiff to furnish further proof of his title to the note in question. Judgment rendered for defendants with costs.

PEABODY V. BLOOMER.

Set-off.

In an action against several joint debtors for a debt due by them as copartners, one of them cannot, under the Code of Procedure, set up by way of defence, a set-off, or counter claim in his own favor individually, for damages sustained by himself, by reason of the fraud and negligence of the plaintiffs acting as his agents. The case of Parsons v. Nash, 8 Howard, Pr. R. 454, instead of sustaining such a counter claim, appears to tend to the contrary. See Code of Procedure, §§ 136, 150, and 274.

PENDLETON v. EMPIRE STONE DRESSING COMPANY.

Impeaching the credit of witnesses.

This case came before the court upon an appeal from the judgment entered in favor of the defendants at the trial term. The plaintiff's counsel had offered to prove that an absent witness for defendant, whose testimony had been taken under commission, and whose deposition had been read, had made statements out of court contrary to the tenor of his deposition. The witness had been asked on cross examination whether he had not stated that the services of Horace Andrews, plaintiff's assignor, were worth five thousand dollars, and had replied that he could not recollect making such statement. Plaintiff's counsel then offered to prove that he had made such statement, and that he had also said, that defendants ought to pay said Andrews said sum of five thousand dollars.

Counsel for defendants objected to the evidence as inadmissible, and an exception to the ruling of the judge in excluding the same was duly taken.

This exception formed the main subject of argument on the appeal.

L. S. Chatfield, for plaintiff, contended that the court erred in rejecting the evidence, as it clearly tended to impeach the credit of the witness; that an adequate foundation had been laid for it, on the cross examination of the

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witness, and that greater latitude should be allowed in this respect in case of a commission, than where the examination by the witness is conducted orally.

Charles F. Sanford, for defendants, insisted, First, that as tending to discredit the witness's testimony, the evidence offered was incompetent, immaterial, and irrelevant, not being contrary thereto, nor even inconsistent therewith, and no foundation having been laid for it on cross examination, by asking the witness, with particular reference to the time, place, and person involved in the supposed contradiction, whether or not he had said or declared that which was intended to be proved.

Secondly, that the statement of the witness, by which he is to be impeached, must be a matter of fact, and not merely a former opinion, inconsistent with a different opinion, which the facts testified to tend to establish.

HOFFMAN, J., in delivering the opinion of the court, sustained the views of defendants' counsel, and the judgment of the court below was affirmed.

Notes of Recent Cases in New Hampshire.

Supreme Judicial Court of New Hampshire.

We have received from our correspondent in New Hampshire, notes of all the principal decisions of the Supreme Court of that State, at their late Summer Circuit. The notes, as our readers will perceive, are admirably well made; they are also of the highest authenticity. We regret that we have not room to give them all in this Number, but shall publish the remainder as soon as possible; but as we have other interesting notes awaiting publication, may not be able to complete the series fully before November. Even then, however, they will be far in advance of the reports.

June Term, 1856. Rockingham.

PIERCE v. EMERY.

Railroad bonds

Mortgages by railroads to individuals -
trustees for benefit of bond-holders..

Mortgages to

As a general rule nothing can be mortgaged, that does not, at the time, belong to the mortgagor.

An act of the legislature of New Hampshire gave the Portsmouth

and Concord Railroad Company power to issue bonds for $350,000, and to make a mortgage to trustees for the security of those who should become bond-holders, "of the whole or a part of the real or personal estate of the corporation," and by the mortgage to give the trustees authority to sell "the real and personal estate, and all the rights, franchises, powers and privileges, named in the mortgage deed, or any part thereof;" and further provided that the deed of the trustees, on a sale by them, should convey to the purchasers "all the real and personal estate named in said mortgage deed, together with all the rights, franchises, powers and privileges in relation to the same," which the corporation had at the time of the mortgage, and that the purchasers should thereby acquire all the rights, franchises, powers and privileges, which said corporation possessed, and the use of said railroad with all its property and rights of property, for the same purposes and to the same extent that said corporation could use the same, if said deed had not been made, subject to the same liabilities as to the use of said railroad, that said corporation would be under, if said deed had not been made; " that the directors should have power, notwithstanding the mortgage, to sell and dispose of any of the personal property of said corporation, provided they should purchase with the proceeds thereof other property to an equal amount, which should be held by the trustees under the mortgage, in the same manner as if the same had been owned by the corporation at the time of the execution of the mortgage, and specifically included therein. The directors made a mortgage to trustees, appointed under the act, conveying "the railroad of said corporation, together with all its rights, powers, franchises and privileges; with all the lands, buildings and fixtures thereto belonging, or which may hereafter thereto belong, with all the rights, franchises, powers and privileges now belonging to, and held, or which may hereafter belong to, or be held by said corporation; and all the personal property of said corporation, as the same now is in use by said corporation, or as the same may be hereafter changed and renewed by said corporation ;" and the mortgage, on certain contingencies, gave the trustees power to sell the road under the mortgage, by a deed that should pass to the purchasers "all the property, real, personal and mixed, rights, powers, franchises and privileges of this corporation."

Held, that the act authorized the directors to make a mortgage, not only of the existing property of the road, but of the corporate rights and franchise, and of the railroad itself as an entire thing.

That the trustees under such a mortgage would hold subsequently acquired property, as an incident to the franchise mortgaged, and as an accession to the subject of the mortgage.

That the trustees under the mortgage in this case were entitled to hold personal property, acquired by the road after the mortgage, against subsequent mortgagees of the specific property so acquired.

The railroad, before the mortgage to the trustees, owned a cargo of railroad iron, subject to the lien of the United States for duties, and agreed with the plaintiffs that they might pay the duties; that the railroad might lay the iron on their track, and that the plaintiffs, if the road did not repay them the money advanced for duties, within a specified time, might take up the iron and hold it for security of the money advanced.

Held, that the iron having passed according to this bargain into the possession of the road, the lien for the duties was gone, and could not be asserted by the plaintiffs against the mortgage to the trustees; but that the contract was valid between the parties to it; and that if the trustees had notice of it, and assented, at the time when they took their mortgage, the contract would be binding in equity on the trustees, and on those who subsequently became bond-holders.

The plaintiffs owned a quantity of railroad iron, and it was agreed between them and the Portsmouth and Concord Railroad Company, that the rails should be delivered to the road, and laid separate from other iron in a particular part of the road; that upon payment within a time limited of a stipulated price, the iron rails should become the property of the road, and until such payment, should remain the property of the plaintiffs.

Held, that the iron having been delivered and laid in the track under this bargain, did not become the property of the railroad until the price was paid; and that the price remaining unpaid, the plaintiffs were entitled to hold the iron against subsequent mortgagees of the road, who had notice of the plaintiffs' interest at the time when they took their mortgage.

STATE v. RUNDLETT.

Indictment for breach of license law.

An indictment for selling spirituous liquors without license, is not barred by the statute, limiting suits and prosecutions on penal

statutes.

STATE V. PRESCOTT.

Indictment for keeping a gaming house.

In an indictment on the statute for keeping a gaming house or gaming place, it is not necessary to set forth a particular description of the house or place; nor to name the persons who played at it; nor to state what games they played; nor the amount of the gain, hire or reward" for which they played. Nor is the indictment double because it alleges that the defendant allowed playing at the house on divers days and times.

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SANBORN'S PETITION.

Highway-Apportionment of expenses.

Where the same highway is laid out in two towns, the road commissioners have no power, under the statute, to order part of the expense of making the road in one town to be paid by the other town.

If the road commissioners in their report, laying out a road, make such an order, their report will be rejected and the petition recommitted.

BLANCHARD v. ATLANTIC MUTUAL FIRE INSURANCE COMPANY. Party to bring suit

Double insurance By-law suspending risk during non-payment of assessment.

The defendants issued a policy of insurance to one Gates on property of his, he giving a premium note to pay such assessments as should be made against the policy; the insurance, however, in case of loss, was made payable to the plaintiff, Blanchard. The charter contained a provision that in case of double insurance, the policy should be void, unless consent was given, signed by the president and secretary. A by-law also provided that if the insured should, for the space of ten days, neglect, when personally called on, to pay any assessment, the risk on the policy would be suspended till the same should be paid.

Held, 1. That the action should have been brought in the name of Gates, he being the member of the company. 2. That, it appearing that there was a double insurance on the property, a previous policy having been taken out from another office, this policy was void. 3. That the by-law was constitutional; that the policy was inoperative if the terms of the by-law were not complied with; and that if the property was destroyed during the suspension of the policy, the insurance could not be recovered.

JONES v. PORTSMOUTH AND CONCORD RAILROAD ET AL.

Sale on execution.

If an officer, by direction of the creditor, take any measures which are calculated to prevent competition at the sale of property taken on execution, and the purchaser assents, the sale will be set aside as fraudulent.

Where a railroad corporation, on settlement with a contractor, agreed to pay him a certain amount in shares or in bonds of the road at his election, the amount, however, to be retained by them as indemnity against certain liabilities to which the road was subject, and they made out and delivered to the contractor a certificate