assume new relations in Ohio. The damages in the event of a recovery would be assets in her hands, to be distributed, as required by the law of the domicil, not of the forum. No trust exists by virtue of any statute of Kentucky, and we cannot perceive how those, who would be entitled by the law of Ohio to participate in the fund, could compel a distribution. The law of descents here is the rule presented, and yet it would be a novel doctrine, if the heirs of the decedent could take their share of his personal estate, by any other rule than that which prevails in Kentucky.

We have examined the question before us in all its phases, with an anxious desire to ascertain the true rule of decision, in a case that is at once novel and interesting. Our researches have thoroughly convinced us that the plaintiff has no right to maintain the action, and the Judge, in so affirming the law, committed no error. We hold the statute of 1851 has no extra territorial jurisdiction; that it was intended to operate only in this State; that it created a new right of action, and furnished a new remedy, neither of which can be extended to the present case.

The principle upon which we decide the question, has been recognized by the Supreme Court, in the construction they have given to the law of 1840, "authorizing the collection of claims against steamboats." In Champion v. Janitzen, 16 Ohio, 91; Goodsell v. St. Louis, ib. 178, it was held, that no extra territorial jurisdiction could be claimed under the statute; its provisions were intended to operate, and could only operate within the State, or the waters bordering on the State. And we but affirm the same rule, when we apply it to the present action.

The judgment at Special Term is affirmed.
Ketchum, and Headington, for plaintiff.
Lincoln, Smith, and Warnock, for defendant.

VOL. IX. NO. VI. NEW SERIES.

29

Notes of Recent Cases in New Hampshire.*

July Term, 1856. Grafton.

BELL v. WOODWARD.

Rights of holders of mortgages by assignment - Merger.

If the owner of an equity of redemption subject to two mort. gages made by a former owner, purchase and take an assignment of the prior mortgage, that mortgage is not extinguished, but will be upheld as an existing security in the hands of the assignee.

The owner of such mortgage and equity of redemption may convey them, and the mortgage will not be extinguished by the

conveyance.

If the owner of such mortgage and equity of redemption convey the land by quitclaim deed, and at the same time deliver over to the purchaser the mortgage deed and note, this will convey the mortgage and mortgage debt as well as the equity of redemption.

Mary Hale purchased an equity of redemption subject to two mortgages, and bought in the prior mortgage: she gave a quitclaim deed of the land to the defendant, and delivered over to him the mortgage deed and note; the note had not been paid, but when produced on trial had written across the face, "cancelled by Mary Hale." There was no evidence to show when, or by what bargain, if any, or for what purpose the writing was put on the

note.

Held, that the intention of the parties must be presumed to have been to keep the mortgage on foot; that this intention was consistent with equity; and would be carried into effect against the subsequent mortgagee.

WEBBER V. MERRILL.

Damages recoverable by one tenant in common · -Verdict received on Sunday.

If one tenant in common, sue alone in trespass qu. cl., and the defendant, instead of pleading the nonjoinder of the other tenants in common, plead to the action, the plaintiff will recover for his share of the damage.

A verdict may be lawfully returned on Sunday, if the cause was committed to the jury before that day.

PUTNAM v. Mellen.

Exchange of chattels Independent agreements.

On the 27th of December the plaintiff and defendant agreed to exchange oxen. The defendant was to drive his to one Willey's,

* Continued from page 294.

where the plaintiff's cattle were, on the next morning, and the exchange was then and there to be made. The plaintiff was to give the defendant $20 as boot; three dollars of which were paid on the 27th as earnest of the bargain, and the remaining seventeen were to be paid on the 15th of January following.

On the 28th of December, Willey, who had the care of the plaintiff's cattle, and who was to make the exchange for the plaintiff, having waited till after eight o'clock, took the oxen and went to get a load of laths for himself. Returning between ten and eleven o'clock that forenoon, he saw the defendant in his door-yard, and they met about twenty-five or thirty rods from the house. Willey asked the defendant if he had come to exchange, and he said he had. Willey proposed to do it then, but defendant said he had a log on his sled that was rather heavy, and plaintiff's cattle were a little worried, and he would exchange when he came back.

Held, that the agreements to make the exchange and to pay the money at a future day were independent undertakings; and that an action could be maintained for a refusal to make the exchange on the 28th, without showing a payment of the $17. Held also, that the plaintiff was not bound to leave the $17, or security for the same with Willey on the 28th, to be delivered before the exchange. Held further, that there was a substantial performance. by the plaintiff, on the 28th, of his part of the contract to be performed on that day.

CROSS v. BELL.

Presumptive evidence - Usury recoverable.

The plaintiff brought his action for $200 alleged to have been paid as usury. It appeared that he had agreed to pay the defendant $1800 for a third person; that the defendant wrote notes for $2000, and upon the plaintiff's objecting that they were too large, the defendant replied, "There is our account and other deal - all is put in." The plaintiff signed the notes, and afterwards paid them.

At the trial the plaintiff notified the defendant to produce his books of account; but it was not done; and the court instructed the jury that they might infer from the fact that the books were not produced, that they would not aid the defence if produced, — Held, that the instructions might be sustained.

Illegal interest may be recovered back in an action for money had and received, and no special demand is necessary before suit brought.

BEAN v. BRACKETT.

Petition under the statute to redeem a mortgage-Sale by assignee in bankruptcy Notice of sale proved by assignee.

In a petition to redeem a mortgage, filed in the common pleas under the Revised Statutes: Held, if a debtor agree with a third person to buy a lot of land, and give his notes and a mortgage for the price, and then to give to the debtor a bond to convey to him the same land on payment of notes of the like amount and date, and the object of the arrangement is to keep the debtor's property out of the reach of his creditors, and the debtor goes into possession and erects buildings on the land, the transaction cannot be impeached for fraud, because there is no transfer of the debtor's property to defeat or delay creditors; and because by our statute the debtor's right under the bond remains open to attachment, as if he held the legal estate.

Held also, that the debtor has an equitable estate in the land, and any buildings he erects upon it become a part of the realty, subject to the mortgage to the original owner. They are not to be regarded as personal property. If they are mortgaged by the debtor, his mortgage should be recorded in the county records as a deed of real estate, and if he describes the premises mortgaged as buildings, the description will pass the land on which they stand.

Held further, that if the debtor becomes bankrupt, and his schedule describes his interest in the land as subject to a mortgage on the buildings, and the assignee by license of the District Court, sells the estate as it is described in the schedule, the purchaser cannot take advantage of the fact, that the mortgage was made for the purpose of giving a fraudulent preference, though the assignee might have avoided the mortgage, or have sold it as being free of such mortgage. The power to avoid such mortgage is to be exercised for the benefit of the estate, and not of a particular purchaser at the sale.

If the purchasers at the assignee's sale, having previously taken an assignment of the original mortgage, and recovered possession of the land and buildings by a suit, have taken the rents and profits until they exceed the amount due upon the mortgage, and nothing appears to change the ordinary rule that the purchasers of land subject to a mortgage are to contribute proportionably, the whole is to be applied in discharge of the mortgage; and it is consequently to be decreed to have been fully paid and discharged.

The testimony of the assignee in bankruptcy is competent evidence to prove the posting of the notices of the sale and their contents, it appearing that he had no knowledge where they were, or what became of them.

GOULDING V. CLARKE.

Proprietary records-Proceedings in calling proprietary meetings. A warrant under the Revised Statutes, issued by a justice to call a proprietary meeting, must be issued upon application of the owner or owners of one twentieth of the corporate property, and must be published fourteen days, as provided for warning the annual meeting of said corporation.

That a meeting was called in 1815, upon a petition which set forth that the petitioner was owner of one sixteenth part of the property, is not sufficient evidence against a stranger, that he was such owner, so as to prove that his children were owners of the same interest.

The votes of the proprietary required notice in a newspaper printed at Hanover, if any, otherwise in one printed at Concord: the Justice ordered notice in a paper printed at Concord; it was held insufficient without proof that no paper was printed at Hanover, and it must be shown that notice was published as ordered.

By the statute of 1846, the petition to the Justice must be signed by three or more proprietors; one signed by two only is insufficient to support the subsequent proceedings. The statute requires notice to be published in a paper in the county, where a majority of such proprietors reside. Held, a publication in another county is insufficient, without evidence as to the residence of the proprietors.

If prima facie evidence is produced that the books offered are the records of the proprietary, and the entries, if recent, purport to be made by a person, who was acting clerk, claiming to be such by virtue of an election, this is sufficient to authorize the court to examine into the regularity of the proceedings, and to admit them as evidence, if no sufficient objection appears to exclude them.

CUMMINGS v. ALLEN.

Second allowance to widow.

On appeal from a decree of the Judge of Probate making a second allowance to a widow. Held, that though a Court of Probate may make an allowance to a widow without notice, in the exercise of its discretion, yet the discretion to be exercised is a legal and not a capricious discretion; and where one allowance deemed at the time suitable and sufficient has been made, it is not a just exercise of such discretion to make a further allowance without notice. On appeal in such case, the Supreme Court examine the question as to the amount of allowance, as if the case were originally before them. Where the debts exceeded the whole estate, which was about $6,400, and the widow's dower was worth $640, and she was allowed $600, a further allowance was not deemed reasonable.