GILMORE v. Gale.

Attachment of chattels subject to mortgage-Demand and account of amount due on mortgage.

Under the provisions of the statute, which declares that goods mortgaged may be attached as the property of the general owner, "the attaching creditor or officer paying or tending to the mortgagee, or holder, the amount for which the property is holden, to be ascertained, as follows, namely: the officer or creditor may demand of the mortgagee or holder an account on oath of the amount due upon the debt or demand secured by the mortgage, and the officer may retain the property in his custody until the same is given without payment or tender, and if such account shall not be rendered within fifteen days after the demand, or if a false account shall be given, the property may be holden discharged from the mortgage," a demand being made of the holder to whom the mortgage and mortgage notes had been assigned as collateral security for a debt due from the mortgagor to him, for "an account, under oath, of the amount of the debt or debts, demand or demands secured by the mortgage," and an account being rendered by the holder of the amount of his debt against the mortgagor for which the mortgage and notes had been assigned as collateral; it was held, that the terms of the demand were in conformity with the requirements of the statute, and that the account rendered was insufficient.

MEAD v. Merrill.

Consideration of promissory note.

The plaintiff, a common carrier, sold out his wagons and team, and the good will of his business, taking two notes of the defend. ants as the consideration. One of the notes was signed by the father-in-law of one of the defendants as surety, upon the understanding that it constituted the whole consideration, the fact that the other note was given being purposely concealed from him, and he becoming surety with a view to aid his son-in-law in establishing him in the business: - Held, that this constituted no defence to a suit upon the other note against the makers.

Evidence that the business was unprofitable after the sale while carried on by the defendants, has no legitimate tendency to prove that it was so while carried on by the plaintiff, for the purpose of showing that his representations made at the time of the sale as to the profitable character of the business were false and fraudulent.

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Towns v. PRATTS.

Attachment ·Necessary furniture and wearing apparel.

A travelling trunk, mahogany cabinet box, and breast-pin, are not exempted from attachment under the provisions of the statute which exempts from attachment and execution the necessary wearing apparel of the debtor and his family, and household furniture to the value of twenty dollars.

BROWN v. TOWN OF CONCORD AND CONGREGATIONAL SOCIETY.

Devise for the support of a minister.

A devise of land to the town of Concord "for the use and support of the congretational minister, who shall exercise the duties of that office where the meeting-house now stands, forever," is not a devise upon condition that the town shall forever support such minister. Nor is the clause to be considered as a conditional or contingent limitation of the devise.

By virtue of such devise, contained in a will, taking effect by the death of the testator, prior to the repeal of the laws of this State, authorizing towns to raise money by public tax for the support of the ministry, the whole estate vested in the town; and whatever remedies any particular minister, church or society may have against the town in equity for enforcing the trust, if any arises, whenever there is no longer a minister, such as is described in the will, to whose use and support the land may be applied, the heirs or residuary legatee of the devisor have no interest in the disposition of the estate, and cannot maintain a bill in equity for an account of the monies received by the town upon a sale of the land, and for a decree that the amount unexpended in their hands be paid over to them.

June Term, 1856. Hillsborough.

STATE v. JOHNSON.

Indictment for concealing the goods of a debtor to prevent their being attached Liquors sold on legal process.

In an indictment on the statute for concealing the goods of a debtor to prevent their being taken for his debt, it is no defence to show that the defendant, at the time of the concealment, held the goods under a fraudulent mortgage from the debtor, duly executed and recorded.

Nor, that the defendant, previous to the concealment, was summoned as trustee of the debtor in a process of foreign attachment, which was pending at the time of the concealment.

On such an indictment, to show that the goods were the property

of the debtor, within the meaning of the statute, it is competent to show that a mortgage previously made of the same goods by the debtor to the defendant, was fraudulent, though the taking of the fraudulent mortgage by the defendant was a distinct statutory

offence.

Spirituous liquors may be taken on mesne process and on execution, and sold for the debt of the owner.

BOWMAN v. MANTER.

Mortgage discharged.

Where a mortgagor paid and took up the mortgage note, but on the next day redelivered the note to the mortgagee, took back part of the money paid, had the balance indorsed on the note, and agreed that the note and mortgage should remain as security for the money repaid to him, and for a collateral liability of the mortgage: Held, that the mortgagee having been once discharged by payment of the mortgage debt, was not revived as against a creditor of the mortgagor, who afterwards extended his execution on the land.

KENDRICK V. KIMBALL.

Service of writ where defendant has left the State.

Where the property of a defendant, having his actual residence in this State, is attached on mesne process, the service of the writ must be completed by delivering to him a summons, or leaving it at his usual place of abode. If, after the attachment is made, and before a summons is served upon him, he leaves the State and does not return prior to the entry of the action, the court may order the action to be continued, and notice to be given of the pendency thereof in some newspaper, and upon evidence that the order has been complied with, judgment may be taken. judgment upon such notice will be good against the defendant

within this State.

And a

The defendant, on the 20th of October, 1851, was a resident of this State, and his property was attached on that day on a writ in favor of the plaintiff. Before the officer delivered him a summons, or left one at his usual place of abode, he went to California, and did not return prior to the sitting of the court at which the writ was returnable. Upon the entry of the action, the court, upon a suggestion of the facts, ordered the action to be continued, and notice of the suit to be given by publication in a newspaper. At the following term, on evidence that the order had been complied with, judgment was rendered against the defendant. In 1853, the plaintiff brought his suit against the defendant, and declared in debt on the above judgment. Upon a plea of nul tiel record, held, that the judgment was valid within the limits of this State.

PATTEN V. MOORE.

Witness in Chancery - Costs.

If a witness, in chancery, demur to interrogatories, and his demurrer is overruled, he will be charged with the costs of attempting to take his testimony, and the taxable costs of the case, pending the delay occasioned by his refusal to answer.

LANPHIER v. WORCESTER AND NASHUA RAILROAD.

Right of way - Obstruction by railroad.

In an action for obstructing a right of way, on demurrer to the declaration; held, that a count for obstructing a way at common law, and a special count under the statute for obstructing a way by a railroad, after sixty days notice, may be joined.

That the statute applies to all railroads, as well those which have adopted the act, making railroad corporations public as others, and it is therefore not necessary to allege the corporation to be public, nor that it has adopted that act.

That it must appear by the declaration that the way alleged is a private way, or special damage must be alleged.

That if the plaintiff is alleged to be seized of "a lot of land in N," the insufficiency of the description is no cause of demurrer, unless the way is alleged to be appurtenant to that land. That the termini of a private way should be set out, and the want of such limits is cause of demurrer.

FLINT V. РАСТЕЕ.

Donatio causa mortis.

If a party, in his last sickness, and in expectation of his approaching death, make a promissory note, without any other consideration than his good will to the payee, and deliver it to take effect after his deccase, it will not be valid as a donatio causa mortis.

Fox v. WHITNEY.

Penalty for taking illegal fees- Taxation of costs by magistrate.

An attorney fee taxed in the bill of costs in a criminal cause before a magistrate is illegal, such fee being allowed only in cases where party costs are to be taxed; and there being no party plaintiff either for whom or against whom to tax costs in criminal proceedings.

The penalty given by the statute for demanding and taking illegal fees, is designed to restrain public officers from exacting unreasonable compensation for services rendered by them of an

official character; and the penalty attaches only in case of an illegal fee demanded by such officer, or by some other person for him by his assent, for a service performed by him, and as his compensation therefor.

A magistrate is not liable to the penalty, who has rendered judgment in a criminal proceeding for costs, including an attorney fee; the same being taxed and claimed by the attorney who conducted the prosecution, as compensation for his services; although the costs were paid upon the order of the magistrate to hold the respondent in custody till they were paid, and the magistrate receipted to the respondent for the costs upon their being so paid.

ALCUTT V. LAKIN.

Reservation in a deed of timber upon a lot.

A reservation in a deed of "all the hemlock, spruce and birch timber in the wood lot" on the premises conveyed, includes all the standing trees of those kinds in the lot suitable for timber.

A limitation of the reservation to trees "measuring forty-two inches in circumference at the stump," does not exclude the bark upon such trees at the point of admeasurement in ascertaining the circumference.

BROWN v. DUDLEY.

Trustee process before a justice of the peace - Trustee charged in former

suit.

In trustee proceedings before a Justice of the Peace, where the plaintiff and principal defendant reside in one county, and the trustee in another, the writ should be directed to the sheriff of any county or his deputy, or to any constable of each of the towns wherein either of the parties is resident.

An omission to insert the proper direction, if the writ be served by the proper officer, is not fatal to the proceedings.

The bond provided for in such cases, is solely for the protection of the trustee, and is to be regarded as waived, if the trustee appear and disclose, and judgment be rendered against him without objection.

Evidence that the defendant has been charged as trustee of the plaintiff in a former suit, and the judgment satisfied, is competent to be received in bar of a claim for the same indebtedness for which the defendent was charged as trustee.

Such evidence is conclusive as to so much of the plaintiff's claim as was satisfied and extinguished by the payment of the former judgment.

The judgment against a trustee is not conclusive as to the original amount of his indebtedness to the principal defendant.