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tween the parties. The court entered a decree in substance that, if the plaintiff files with the clerk, before June 1, 1888, a deed of quitclaim or release to the defendant of a strip of land 10 feet in width across the easterly end of her lot, and adjoining the defendant's land, judgment is to be entered on the report for the plaintiff for $13 damages and taxable costs. If the plaintiff refuses to make such conveyance, the bill is to be dismissed, with costs for the defendant. To this order and decree the plaintiff excepted.

E. J. Temple, for plaintiff. Leonard Wellington, for defendant. BLODGETT, J The plaintiff can take nothing by her exception. The inconsequential injury reported by the referee may apparently be fully compensated, and the land itself recovered in proceedings at law, but if not, the manifest object of this proceeding being to compel the defendant to pay an exorbitant price for the narrow strip of land upon which, through mutual mistake, her two houses are partly situate, and which is comparatively valueless except for purposes of litigation, or subject her to great inconvenience and expense in removing the buildings, equity will not aid in this attempted act of oppression, and will not take jurisdiction to give the plaintiff redress other than that afforded her by the alternative decree made at the trial term. See Wason v Sanborn, 45 N. H. 169; Clark v. Society, 46 N. H. 272, 275, 276; Bassett v. Manufacturing Co., 47 N. H. 426, 439, 441, 443. Exception overruled.

CLARK, J., did not sit. The others concurred.

(64 N. H. 595)

CANAAN V. GRAFTON COUNTY.

(Supreme Court of New Hampshire. Grafton. July 19, 1888.)

POOR AND POOR-LAWS-Settlement-BY PAYMENT OF TAX.

In gaining a legal settlement under Gen. Laws N. H. c. 81, § 1, providing for the gaining a settlement by residence and payment of poll tax for seven years, it is immaterial that the pauper was taxed by a wrong name.

Petition to be reimbursed for the sum of $134.50, expended for the support of one George P. McCormick, a poor person. Said McCormick resided in Canaan from some time in 1872 until his death, in March 1888, and was taxed for his poll there in 1873 and 1874, under the name of James McCormick. He paid all taxes legally assessed on his poll and estate, including those assessed against him by the name of James McCormick, during the above seven years. His true name was George P. McCormick.

G. W. Murry, for plaintiff. Chase & Streeter, for defendant.

CLARK, J. McCormick acquired a legal settlement in Canaan by residing in the town and being taxed for his poll for seven years in succession, and paying all taxes legally assessed on his poll and estate during that time. Gen. Laws, c. 81, § 1. It is immaterial that he was taxed by the name of James McCormick in the years 1873 and 1874. George McCormick was the person intended to be taxed, and the tax was assessed against him by the name of James McCormick, and paid by him. Whether the mistake in the name was accidental or intentional, it did not invalidate the tax. Sawyer v Gleason, 59 N. H. 140; Vandyke v. Carleton, 61 N. H. 574. The error was one of form merely, and the assessment appears to have been satisfactory to McCormick from his payment of the taxes without objection, and the town having made the assessment in that form, and having collected and appropriated the taxes of 1873 and 1874, ought not now to be permitted to question the validity of the assessment. West v. Errol, 58 N. H. 233; Cogswell v. Bank, 59 N. H. 43. Judgment for the defendant.

CARPENTER, J., did not sit. The others concurred.

(64 N. H. 531)

WINNIPISSIOGEE PAPER Co. v. MARSH.

(Supreme Court of New Hampshire. Merrimack. July 19, 1888.) COVENANTS-AGAINST INCUMBRANCES-COSTS OF REMOVAL.

A grantee of land cannot recover against a former grantor, with full covenants of warranty, expenses which he has incurred in a proceeding to set aside a collector's deed of the premises, made upon a sale for a tax assessed to the grantor before the execution of his deed of warranty, where it appears that the grantor had no notice of the proceeding, and the validity of the tax sale was not established.

Appeal from probate court, Merrimack county.

Appeals from the disallowance of claims against the estate of Sylvester Marsh, deceased, by the commissioner of insolvency.

Daniel Barnard, for plaintiff Bingham & Mitchell, for defendant. CLARK, J. The plaintiffs, who are the owners of a tract of land in Crawford's Purchase, claim to recover of the estate of Sylvester Marsh, a former owner and the grantor, with covenants of warranty of the plaintiffs' grantor, expenses incurred in a proceeding instituted by them to annul a tax deed of Crawford's Purchase and Chandler's Purchase, given upon a sale for taxes assessed against Marsh previous to the conveyance by him to the grantor of the plaintiffs. It appears that the suit to set aside the tax deed was instituted without notice to Marsh, and that neither he, in his life-time, nor his representative since his decease, was a party, or was notified to become a party to it, and that the suit was settled by agreement of the parties by a decree that the tax deed be annulled and canceled, and that no costs should be allowed to either party. Upon these facts the plaintiffs' claim cannot be sustained. It does not appear that there was any incumbrance upon the land when the action was commenced. The validity of the adverse tax title has never been established in any way, and Marsh's estate cannot be charged with the costs and expenses of a suit commenced, prosecuted, and settled, without direction or authority from him. Under these circumstances it is unnecessary to consider whether, under any circumstances, the plaintiffs could have maintained an action upon the covenants contained in Marsh's deed to their grantor. Judgment for the defendant.

ALLEN, J., did not sit. The others concurred.

(64 N. H. 523)

NORRIS NORRIS.

(Supreme Court of New Hampshire. Carroll. July 19. 1888.)

DIVORCE-JURISDICTION.

A divorce will not be decreed in New Hampshire for a cause which arose out of the state at a time when the libelant did not reside in the state, and neither party had a domicile there.

Libel for divorce, filed March 29, 1888, alleging extreme cruelty as the ground of divorce. June 10, 1868, the parties, having their domicile in Canada, were married at Newport, Vt. They lived together as husband and wife until October, 1886, having their domicile in Canada from the time of their marriage, except about the year 1881, when they lived for one year in Vermont. The libelee treated his wife with extreme cruelty, for which reason she left him in October, 1886. Since their separation he has resided, and still resides, in Canada. She resided in Canada until December 1886, when she removed to Vermont, and resided there until she removed to Sandwich, in this county, where she has resided and had her home since March 28, 1887. David H. Hill, for libelant.

CLARK, J. A divorce will not be decreed for a cause which arose out of the state at a time when the libelant did not reside here. The alleged cause

of divorce arose out of the state when neither of the parties had a domicile in the state, and the court has no jurisdiction of the cause. Foss v. Foss, 58 N. H. 283, and cases cited. Libel dismissed.

SMITH, J., did not sit. The others concurred.

(64 N. H. 548)

STATE v. HORAN.

(Supreme Court of New Hampshire. Hillsborough. July 19, 1888.)

1. FORGERY-INDICTMENT-Variance.

An indictment which charges the defendant with forging an instrument purporting to be signed by A., and sets out an instrument purporting to be signed by B., is bad, on demurrer, for repugnancy.

2. SAME-DESCRIPTION OF INSTRUMENT.

Under Gen. Laws N. H. c. 276, § 1, making it a crime to counterfeit any warrant, order, or request for the payment of money, or the delivery of any property or writing of value, an indictment for forging an application for an insurance policy is bad which does not aver in the language of the statute that the policy was a writing of value.1

Indictment charging that the defendant on, etc., at, etc., "with force and arms did falsely make, counterfeit, and sign a certain application to the Metropolitan Life Insurance Company for a policy of insurance, to be issued by said company, purporting to be made and signed by one James Jennings, which said false and counterfeit application is as follows, to-wit, * * * with intent to defraud said company, contrary," etc. The defendant demurred.

Sulloway & Topliff, for defendant. R. M. Wallace and Burnham & Brown, for the State.

SMITH, J. The indictment charges the defendant with counterfeiting an application for a policy of insurance purporting to be signed by James Jennings. The instrument set out purports to be signed, not by James Jennings, but by Kate Kelly, and to be her application for a policy of insurance upon the life of James Jennings. As the name of the applicant in the purport clause of the indictment varies from the name given in the tenor clause, the repugnance is fatal. 2 Bish. Crim. Proc. (3d Ed.) § 416; Rex v. Hunter, Russ. & R. 511; The King v. Jones, 1 Doug. 300; State v. Clark, 23 N. H. 429. The allegation that it is the application of James Jennings is descriptive, and cannot be rejected. Com. v. Ray, 3 Gray, 441; State v. Sherburne, 59 N. H. 99. The indictment is bad also because it does not show on its face that the instrument is one of which forgery can be committed. The statute makes it a crime to counterfeit, among other writings, "any warrant, order, or request for the payment of money, or the delivery of any property, or writing of value." Gen. Laws, c. 276, § 1 The indictment does not allege that the insurance policy requested is either of the writings mentioned in the statute. It should have averred in formal and appropriate language that the policy is a writing of value. Demurrer sustained.

ALLEN, J., did not sit. The others concurred.

1 As to the form and sufficiency of an indictment or information, see State v. Hupp, (W. Va.) 6 S. E. Rep. 919, and note; Hensley v. Com., (Ky.) 9 S. W. Rep. —; State v. Carville, (Me.) 14 Atl. Rep. 942, and note.

(64 N. H. 524)

PERKINS. BURLEY.1

(Supreme Court of New Hampshire. Carroll. July 19, 1888.)

NEW TRIAL-MISCONDUCT OF COUNSEL-ARGUMENT.

It is ground for setting aside a verdict that counsel for the prevailing party, in his closing address to the jury, said that, if the jury knew how the plaintiff and his father and brother (who were witnesses for him) were regarded in the vicinity in which they lived, he would be willing to submit the case without argument." Trover for a horse. Trial by jury. The plaintiff and his father and brother testified in reference to important matters of fact which were in dispute between the parties. The defendant's counsel, in his closing argument, said it was unfortunate that jurors were called upon to decide cases between parties that were strangers to them, and expressed great regret that the jury did not live in the vicinity of the plaintiff and his father and brother, and that they did not known how they were regarded in the vicinity in which they live; for, if they did, he would be willing to submit the case without argument. The plaintiff's counsel objected that this was not a proper line of argument. The defendant's counsel did not proceed further upon that point. Verdict for the defendant, which the plaintiff moves to set aside, and for a new trial because of the foregoing conduct of counsel.

E. A. & C. B. Hibbard and S. D. Quarles, for plaintiff. J. A. Edgerly and Beacham & Foote, for defendant.

BLODGETT, J. The statement by defendant's counsel in his argument to the jury, that if they knew how the plaintiff and his father and brother "are regarded in the vicinity in which they live, * * * he would be willing to submit the case without argument," was, in effect, a declaration that the reputation of the plaintiff and his witnesses was bad in the vicinity of their homes, and was known to be such by the counsel himself. This declaration, not being evidence, was plainly without the bounds of legitimate advocacy, and froin its character inevitably tended to prejudice the plaintiff's case, and to deprive him of that fair and impartial trial to which all parties are entitled as of right. When, therefore, objection was made, counsel was bound to do everything necessary to be done to rectify his wrong. He was legally and equitably bound to prevent his statement having any effect upon the verdict. This he could not do without explicitly and unqualifiedly acknowledging his error, and withdrawing his statement in a manner that would go as far as any retraction could go to erase from the minds of the jury the impressions his statements were calculated to make. * * * It was his duty to request the court that they should be instructed that the unsworn statement was not evidence, and could have no weight in favor of the party improperly making it. The other party does his duty when he objects to the wrong inflicted upon him, and does not allow it to be understood that he waives his objection. Bullard v. Railroad, 64 N H. 27, 32, 5 Atl. Rep. 838. But counsel did nothing to rectify his wrong. He neither retracted his statement, nor requested the court to instruct the jury to disregard it; and, so far as appears, they were not so instructed. The first exception is therefore sustained. See, generally, Hilliard v. Beattie, 59 N H. 462; Cross v. Grant, 62 N. H. —; Martin v. State, 63 Miss. 505, 56 Amer Rep. 812, and note. The remaining exception need not be considered. Verdict set aside.

SMITH, J., did not sit. The others concurred.

'Reported by W. S. Ladd, official reporter of the New Hampshire supreme court. "On the subject of misconduct of counsel in argument as ground for new trial, see Lane v. State, (Ala.) 4 South. Rep. 730, and cases cited in note; Railway Co. v. Cooper, (Tex.) 8 S. W. Rep. 68, and note.

(64 N. H. 605)

FARR v. SMITF.1

(Supreme Court of New Hampshire. Coos. July 19, 1888.)

DEPOSITIONS-FAILURE TO TAKE-PENALTY.

The penalty provided by Gen. Laws, c. 229, § 10, of 25 cents a mile for the travel each way of a party or his attorney to attend the taking of depositions, when no deposition is taken, cannot be recovered for the travel of the general business agent of the party for that purpose.

Debt, to recover the penalty provided by Gen. Laws, c. 229, § 10. Facts agreed. In 1880 a suit was pending in favor of this defendant, and another against this plaintiff, a deputy-sheriff, wherein one Barron was defendant in interest. The plaintiffs in that suit gave notice for the taking of depositions at Hill, on June 17, 1880; but, on arriving at the place of caption, it was found that the witness whose deposition they proposed to take was so sick that he could not give it. Ira S. M. Gove, who was in the employ of Barron as a general agent in his business, was sent by him to Hill to attend the caption, and he traveled there and back, 120 miles each way, for that purpose. This suit is to recover 25 cents a mile for the 240 miles so traveled. Gove was not an attorney of any court.

Drew & Jordan, for plaintiff. Wm. & H. Heywood, for defendant.

CLARK, J. "If any party, after giving notice to the adverse party, as aforesaid, neglects or refuses to take a deposition, such adverse party may recover twenty-five cents a mile for actual travel of himself or his attorney to attend the same, by action on the case, unless seasonably notified in writing, signed by the party giving such notice, that such deposition will not be taken." Gen. Laws, c. 229, § 10. The penalty is given only when the attendance is by the party or his attorney at law. A recovery may be had for the actual travel of the party himself or his attorney, but there is no provision for a recovery for the travel of an agent who is not an attorney. Section 4 of the same chapter provides that when the adverse party resides out of the state, or more than 20 miles from the place of caption, or from the party proposing to take the deposition, notice may be given to his agent or attorney; and section 5 declares that "no person shall be deemed an agent or attorney for this purpose, unless he has indorsed the writ or summons to be left with the defendant in the cause, or appeared for his principal before the court, justice, referees, or arbitrators, where the action is pending, or given notice in writing that he is such attorney or agent." Gove was not the agent or attorney of the party, within the terms of this statute, and he was not an attorney at law. If the party had resided out of the state, a notice to Gove of the taking of the depositions would have been insufficient, and a notice to him that the depositions would not be taken would have been equally insufficient. Gove was not the attorney of the party within the meaning of Gen. Laws, c. 229, § 10, and there should be judgment for the defendant.

CARPENTER, J., did not sit. The others concurred.

(80 Me. 404)

ROGERS v. MARSTON.2

(Supreme Judicial Court of Maine. June 12, 1888.) EXECUTORS AND ADMINISTRATORS-ACCOUNTING-CITATION· TOR.

HEIR AT LAW OF TESTA

An heir at law of a testator may have a contingent, though not a direct, interest in the estate, and as such is authorized to petition the probate court that the executor be requested to render his final account.

1Reported by W. S. Ladd, official reporter of the New Hampshire supreme court. 2 Reported by Leslie C. Cornish, Esq., of the Augusta bar.

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