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cover certain real estate or a certain amount of debt or damages,
and plead to the residue of his claim, and if the plaintiff shall
afterwards prosecute his action, and shsdl not recover more than is
so confessed, the defendant shall recover his costs from the date of
such confession.

Sec 3. No special plea shall ever be required in any civil
action, except a plea of title to real estate before justices of the
peace. Either party may give in evidence any matter in support
or defence of the action under the general issue, upon filing in

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coort a brief statement thereof within such time as the conrt may

Sec 4. Whenever the defendant in any action shall plead one
or more special plea's, the plaintiff may reply thereto all such mat-
ters as may be material in answer to or avoidance of tile matters
alleged in said pleas, and for that purpose may file as many sepa-
rate replications as the nature of the case may require. {Laws of
1847, chap. 503, sec. 1.)

Sec 5. If, upon the trial of any issue framed upon such plead-
ings, either party shall maintain by his evidence such of the mat-
ters by him alleged in pleading, as would constitute a legal answer
to or avoidance of the matters alleged in the pleadings of the other
party, such issue shall be considered to be maintained on the part
of the party producing such evidence, notwithstanding other mat-
ters alleged in his pleadings may not be sustained by the proo£
{Laws of 1847, chap. 503, sec. 2.)

Sec. 6. If there are mutual debts or demands between the
plaintiff and defendant at the time of the commencement of the
plaintiff's action, one debt or demand may be set off against the

Sec 7. Mutual debts or demands existing between any person
deceased at the time of his death and any other person, may be
set off in actions by or against the executor or administrator.

Sec. 8. If the defendant's debt or demand is founded on any
bond or specialty with a penalty, the amount equitably due only
shall be set otL

Sec 9. The defendant may plead such set off or give notice
thereof with a plea of the general issue, describing such debt or
demand with the same certainty as is required in a declaration.

Sec. 10. The plaintiff shall be entitled to one continuance in
case of a set-off, unless a particular statement of such debt or
demand, with a notice that the defendant will set off the same,
has been served on the plaintiff ten days before the sitting of the

Sec. 11. Judgment shall be rendered for the balance which
may appear to be justly due to either of the parties, unless in cases
before justices the balance dae to the defendant shall exceed thir-
teen dollars and thirty-three cents; in which cases judgment shall
be rendered for costs only.

Sec 12. No debt or demand shall be set off as aforesaid, un-
less a right of action existed thereon at the commencement of the
plaintiff's action.

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CHAPTER 200. •


Chapter 188 of the Revised Statutes.
« 704, Laws of 1848.

1. View, when sad on what teniu.
%. Sttmmont, ibrm of.
S. Cleriu maj litae, for witneiiet.

4. JastieM«* •* «*

5. ^mnmons to depoM, jnstioe may Imie.
S. ** how lenrod on wittOfMS.
7. labOitj for iMgloct to attend.

$• Coortt may oompel attendaooe.
9. No penon disqaalified as a witness
by his nUgioos belief.

10. Ceremony in swearing.

1 1 . Affirmation, when allowed.

12. Members of pnblic corporations, Ac,


13. Depositions, when may be taken.

14. Who may take depositions.

15. Notice given to residents, how.


16. Notice given to attorneys, when.

17. Attorney, who is, for this purpose.
IS. Who disqualified to take depositions.
19. Deporition, how signed and sworn.

90. Certificate of taking, requisites. *

91. Proof of notice annexed to oertifleate.
99. Neglect to take, sAer notice, penal^.

93. Deposilions to be sealed and directed.

94. ** ** ** in perpetual remem-

95. Statement of daim to be made.

96. Notice, how to be given.

97. Deposition, how to be taken.
2S. '* • may be recorded, how.
99. ** or copy, when used.
SO. Witness to attend out of State, when.
31. Neglect to attend as such, penalty.

Section 1. In all actions involving qaestions of right to real
estate, the court of common pleas, on motion of either party, may
in their discretion direct a view of the premises by the jury under
such rules as they may prescribe, and subject to such adjudication
as to the whole or part of the costs thereof as they shall think

Sec. 3. Writs of summons to witnesses shall be signed by the
clerk or justice by -whom they are issued, directed to the person to
be summoned, and shall be substantially in the form following;





You are required to appear at in the county of

on the aay of to testify what you know

relating to a plea of to be heard and tried betwixt

plaintiff, and defendant

Digitized by



Hereof fail not, at yon will answer yonr default under the pen-
alties prescribed by law.

Dated at the day of A. D., 18 .

Sec. 3. Clerks of the courts may issue writs of summons for
witnesses in all cases pending in such courts.

Sec. 4 Every justice may issue writs of summons for wit-
nesses in eases pending in any court, in all matters before the
general court, in cases pending before himself or any other justiee,
and in all matters triable before auditors, referees, arbttratan or

Sec. 5. Every justice or notary may issue writs of summons
to witnesses to appear before himself or any other justice or notary
to give a deposition in any matter or cause where the same may
be lawfully taken.

Ssa 6. Any person may be summoned to attend as a witness
to testify or give a deposition by reading to him the writ of sum-
mons and paying or tendering to him the fees by law established
far his travel to and from the place where his attendance is re-
quired, and for one day's attendance.

Sec. 7. If any person so summoned shall neglect to attend, or
to give his attendance so long as may be necessary for the purpose
for which he was summoned, or refuse to testify or to give his
deposition if required, having no reasonable excuse therefor, he
shall be liable to the party aggrieved for all damages sustained by
such default or refusal

Sec. 8. Every court and justice before whom any witness has
been summoned to appear and testify or give a deposition, may
bring any such witness neglecting or refusing to appear and testify^
by attachment, before them, and if on examination he has n6
reasonable excuse, may punish him bv a fine not exceeding fifty
dollars, if imposed by a court, ot ten dollars if imposed by a justice,
and may order him to pay costs.

Sec. 9. No person who believes in the existence of a Supreme
Being shall be adjudged an incompetent witoess in any judicial
proceeding on aoeount of his opinions on matters of religion.

SEa 10. No other ceremony shall be deemed necessary ia
swearing than holding up the right hand.

Sec* 11. Persons scrupulous of swearing may affirm, the mag-
istrate administering the oath using the word '< affirm ^ instead of
the word ^' swear," and the words ^ this you do under the pains
and penalties of peijury," instead of the wcnrds ^ so help you

Sec. 12. Inhabitants of towns, and members of public corpo*
rations, and members of mutoal insurance corporations, shall be
competent witnesses in cases affecting the intereste of such corpo-

Sec. 13. The deposition of any witness in a civil cause may
be taken and may be used upon the trial, if at the time of trial

Digitized by


486 9EPOBITION8» [title XXfK

the witneos has deceased, is insane, is old and infinn, is sick or
unable to attend the conrt, or lives out of the State, or who is
aboat to leave the State and not return before the time of trial, at
lives more than ten miles from the place of trial. (£. &, sec. 13,
amended bji laws of 1848, chap. 704.)

Sec. 14. Any justice or notary public in this State, any oon»-
raissioner appointed under the laws of this State to take deposi-
tions in other states, any judge, or justice of the peace, or notary
public in any other state or country, may take such depoiutions.

Sec 15. The party proposing to take such deposition shall
cause a notice in writing signed by a justice or notary, stating the
day, hour and place of taking the same, to be delivered to the ad-
Terse party or one of them, or left at his usual place of abode, if
either of such parties reside in this State, or within twenty miles
of the place of taking or of the party taking the same, a reasona-
ble time before the taking thereof.

Sec. 16. If such adverse party resides out of the State, or
more than twenty miles from the place of caption or from the
party proposing to take such depositions, a like notice given to the
a^ent or attorney of such adverse party, or left at his usual place
of abode, shall be sufficient.

Sec. 17. No person shall be deemed such agent or attorney for
this purpose, unless be has endorsed the writ or the summons to
be left with the defendant in the cause, or appeared for his princi-
pal before the court, j.ustice, referees or arbitrators where the action
is pending, or shall have given notice in writing that he is such
attorney or agent.

Sec 18. No person shall write the testimony of any witness
or act as magistrate in taking the same who would be disqualified
to act as a juror on the trial of the cause for any reason except
exemption from service as a juror.

Sec 19. Every witness shall subscribe his deposition and shall
make oath that such deposition contains the truth, the whole truth,
and nothing but the truth relative to the cause for whieh it was

Sec 20. The magistrate taking any deposition shall certify
such oath with the time, place and cause of taking the same, and
the case and court in which it is to be used, and that the adverse
party was or was not present, was or was not notified, and that he
did or did not object

Sec 21. A copy of the notice left with the adverse party, his
agent or attorney, with the return of the officer or affidavit of the
person leaving such notice thereon, stating the time of leaving the
same, shall be annexed to the certificate of the taking thereof,
when the adverse party did not attend.

• Sec 22. If any party, after giving notice to the adverse party
as aforesaid, shall neglect or refuse to take a deposition, such ad-
verse party shall be entitled to recover twenty-five cents a mile for
actual travel of himself or his attorney to attend the same^ by

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«HAP« 200.] DBPOBITIONB. 487

action on the case, nnlese seasonably notified in writing signed by
the party giving such notice that such deposition will not be taken.

Sec. 23. Depositions shall be sealed up by the magistrate
taking the same, directed to ihe court or justice before whom they
are to be used, with a*brief description of the case, and shall be
80 delivered into court.

Sec 24. Depositions may be taken in perpetual remembrance
of any fact or transaction, before any court of record or before two
justices, one of whom shall be of the quorum.

Sec 25. Any person wishing to take such depositions shall
make a statement in writing, under oath, briefly setting forth in
substance his title, interest or claim in or to the subject, or setting
fprth the facts to which the desired testimony relates, and the
names of all persons supposed to be interested therein, and also
the names of the witnesses proposed to be examined, which. state-
ment shall be delivered to the court or justices before whom the
depositions are to be taken.

Sec 26. Notice shall be given in the manner provided by law
in cases of depositions taken to be used in actions then pending,
to all persons known to be interested in the property or iaransaction
to which the testimony relates.

Sec 27. Every such deposition shall be written, signed and
sworn to as is provided in this chapter in case of depositions in
actions pending, with the necessary variation in the form of the
oath ; and the said court or justices shall annex to each deposition
a certificate of the time and place of taking, the name of the per*
son at whose request it was taken, and of all those who were
notified to attend and did attend, and shall also annex thereto a
copy of the notice, as is prescribed in the twenty-first section of
this chapter*

Sec. 28. The said statement, deposition, certificate and copy
of notice shall, within ninety days after taking the same, be re-
corded in the registry of deeds in the county where the land or
any part of it lies, if the deposition relate to real estate, and if not,
in the county in which it was taken.

Sec 29. All depositions taken in perpetual remembrance as
aforesaid, or a copy of such record, the original being lost, may be
used in the trial of any cause between the person at whose request
it was taken and any of the persons named in the statement and
duly notified, or those claiming under them, concerning the title,
claim, interest or facts set forth in the statement.

Sec 30. If the clerk of any court in any other of the United
States shall certify that there is a criminal cause pending in such
court, and that a person residing in this State is supposed to be a
material witness therein, any justice shall, upon such certificate or
paper annexed thereto, issue a summons requiring such witness to
appear and testify at such court.

Sec 31. If any person on whom such summons shall be served)
having tendered to him twelve cents for each mile to be travelled.

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to Bfid from soch eonrt, aod two doUan for each day bis attend*
ance may be required, shall uoreaaoiiablv neglect or refaae to
attend and testify at said court, be shall forfeit the sum of three
bondred dollars to any person who mil sne for the same.



Chapter 728, Laws of 1848.


1. CommissioneiB to be appointed.
8. Statement of penone wiahing to lake

depoeltioBs, to whom made.
S. CommiMioner to give notice.


4. Depoeition to be algned and sworn to.

5. BTidenee to be Sled and recorded.

S. Depoeitiona taken may be need in tri-

Section 1. Whenever it shall appear in evidenoe, to the aatis-
faction of the justices of the court ot oommon pleas, at any term
of said court in this State, that any rec^s of the sales of lands
for taxes by any sheriff of the county in which such t^m is holden,
have been burnt or destroyed, or lost, then said court may appoint
a commissioner or commissioners to take depositions in perpetual
remembrance of any fact or transaction of which said records, if
In existence, would have been the proper evidence.

Sec. 2. Any person wishing to take such depositions shall
make a statement in writing, under oath, briefly setting fortti in
substance his title, interest or daim in or to the subject, or setting
forth the facts, as near as may be, to which the desired testimony
relates, and the names of the witnesses proposed to be examined,
which statement shall be delivered to said commissioner or com*

Sec 3. The said commissioner or commissioners shall give
notice of the taking of such deposition or depositions by puUish-
ing in the New Hampshire Patriot and State Grazette, printed in
Concord, and in some newspaper printed in the county in which
the land, the titie to which may be affected by such deposition or
depositions, is situated, if any there be, the substance of such
statement, with the time and place of taking such deposition or
depositions, which said notice shall be published in said newspa-
per or newspapers three weeks successively, commencing at least
eight weeks before the time of taking, and shall cause a like notice
to be posted up in some public place in the shire town or towns of
the county in which the lands lie, during the same period. And

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ORAT. 203.]



aaid oommimoiier or oommisflioBarB may give sadi farther notice
as they shall deem expedient

Sbc. 4. Every snch depo&itioB shall be written, signed and
sworn to as is provided in the case of depositions to be used in the
courts of this StatCi with the necessary variation in the form of
the oath ; and the said commissioner or commisBioners shall annex
to each dq^osition a certificate of the timo and place of t^ing,
the name of the person or persons at whose request it was taken,
of the notice and of the names of the persons who attended the

Sec. 5. The evidence of the destruction of papers aforesaidy
tlie reocnrd of the action of the court thereon, and of the appoint-
ment of commissioner or commissioners, said statement, deposi*
tion and certificate, shall, within nine^ days after the taking
thereof, be filed and recorded in the records of the court of common
pleas in the county wherein the lands lie, the titie whereto may be
afieoted by such taking.

Sac. 6. All depositions taken in perpetual Kmembranoe as
aforesaid may be used in the trial of any cause, wherein the mat-
ters concerning which they were taken are drawn in question ; and
in case said depositions shall be lost, or out of the possession and
control of the party desiring to use the same, a copy of such record
may be used instead of the originals.



Chapter 189 of the Revised Statutes.


' 1. Aaditon, when appointed.
S. In actions between copartnen and co-

3. Anditors; to be sworn; giye notice;

may adjourn ; report, how made.

4. Anditors discharged or report recom-

mitted, when.

5. Case may be tried by jniy, when.
S. If party refuse to produce books, &c.,

report may be, what
7. Judgment in snch case, how rendered.
S. Auditors' compensation, how paid.

Section 1. Whenever it shall appear to the superior court or
court of common pleas, that an investigation of accounts or an
examination of vouchers is necessary in any action pending* in
mch court, they may appoint one at more auditors to state the
account between the parties and make report to the court.

Digitized by




[title XXII.

Sec. 2. Anditon may be appointed io actions brought by co-
partners or cotenants against their copartners or cotenants.

Sec. 3. Auditors shall be sworn and shall give notice to the
parties of the time and place of hearing, may adjourn when neces-
sary, and shall all hear the parties, but a majority may report

Sec. 4. Auditors may be discharged by the court and others
appointed, or their report may be recommitted for revision.

Sec. 5. If either party is dissatisfied with the report, the case
may be tried by jury, and such report shall be given in evidence
to the jury, subject to be impeached by evidence offered by either

Sec. 6. If either party shall neglect or refuse to appear before
the auditor, or to render an account or to produce such books and
papers and to answer on oath such interrogatories relating to the
matter in controversy as may be pertinent and material, the auditor
shall certify the same to the court

Sec. 7. The court shall thereupon render judgment against
such party, as upon nonsuit or default, and, if necessary, cause the
damages to be assessed by the jury.

Sec. 8. The court shall allow a reasonable compensation to
the auditors, which shall be paid by the plaintiflf and taxed in his
bill of costs, if ^he recover.


Chapter 190 of the Revised Statutes.


1. Judgments to be rendered in dolltn

and oenti.

2. Interest, at what rate ; Jkuary.

3. Eyidence, and triple dednction made.

4. What ie not oiorj.

6. Statement of betterments made.

6. Yerdiet aa to amount, how rendered.

7. Judgment, how entered.


8. Judgment, on bond, to be for the

amount equitably due.

9. *^ security for future breadi-

10. " scire facias on, in sndi


on mortgages oonditionaL

Section 1. All judgments shall be rendered in dollars and

Sec. 2. Interest in the rendition of judgments and in all busi*
ness transactions where interest is secured or paid, shall be com*
puted at the rate of six dollars on a hundred dollars for one year,
unless a lower rate is expressly stipulated ; and every person who

Digitized by


CHAP. 203.] JUDOHBMT8. 491

upon any contiRetot sball, directly or indirectly, receive interest at a
higher rate, shall forfeit for every such offence three times the sum
so received.

Sec. 3. When any person, for the recovery of any debt or
damages, shall be sued upon any instraroent hereafter made, and
interest at a higher rate than six dollars for a hundred dollars for
one year has been paid or secured upon the money sued for, or is
secured by such instrument, if the debtor, (the creditor being alive,)
will come into court where the action is pending, and offer to make
oath, and, if required by the court, actually swear that there has
been taken or secured upon the money sued for, or that there has
been or is secured in and by the instrument sued, interest above
the rate aforesaid, then the court in rendering judgment shall deduct
firom the sum lawfully due, three times the amount so taken or
secured, unless the creditor will swear that he has not, directly or
indirectlv, willingly taken or secured on the money sued for, or
secured in and by the instrument sued, any interest above the rate

Sec. 4. Nothing in this chapter shall extend to the letting of
cattle or other usages of like nature in practice among farmers, or
to maritime contracts, as bottomry, insurance or course of exchange,
as heretofore used.

Sec 5. Any person against whom any action may be brought
for the recoverv of real estate, may with his plea file a brief state-
ment, setting forth that he and the persons under whom he claims,
have been in the actual peaceable possession thereof, under a sup-
posed legal title, for more than six years before the action was
commenced, and that the value thereof has been increased by them
by buildings or other improvements.

Sec 6. The jury, if they find a verdict for the plaintiff, shall
determine if the said lands have been so possessed and improved,
and the amount of the increased value thereof, after allowing for
any waste or injury the same may have sustained.

DEC 7. The judgment rendered for the plaintiff upon such
verdict, shall be conditioned that if the plaintiff shall, within one
year, pay to the clerk of the court for the use of the defendant the
amount of the increased value so found, a writ of possession shall
issue for the plaintiff, otherwise all his right to such lands shall be
forever barred.

Sec 8. In all actions for the recovery of any penalty or forfeit-
ure in any obligation or contract under seal, the superior court or
court of common pleas shall render judgment for the amount
which shall appear to be equitably due.

Sec 9. If such penalty or forfeiture shall be designed to secure
the performance of several things to be done at different times,
judgment shall be rendered for the whole of such penalty or for-
feiture, and the court shall award execution only for so much as is
justly due at that time.

Sec 10. The plaintiff or his administrator may, from time to

Digitized by




[titxb ZXU.

time, have a sdie fiuaas apon aach judgmenti andTezecotion shafl
be awarded him for any further sums whidi may have beoome
equitably due to him.

Sbc. il. In actions on mortgagee the judgment shall be condi-
tional, that if the mortgager or person having hu right, shall pay
to the m<Mrtgagee or person having his rieht, the sum the court
shall adjudge due, within two months after judgment rendered
with interest, such judgment shall be void, otherwise a writ of
possession shall issue.



Chapter 191 of the Revised Statutes.


1. Costs to foUow eyent, anless.
S. No cost in actioa on jndpnent, wlien.
S. Costs wfaera serersl salts biovght, how

4. Costs not to ezoeed danugSBin actions
for psfsonal ii^iDries.


5. Kor in trsspass to real estate.

6. Costs limited where lees than •IS.SS

Online LibraryNew HampshireThe compiled statutes of the state of New Hampshire: to which are prefixed ... → online text (page 52 of 80)