2. A sheriff, who has attached goods upon mesne process, does not become a trespasser, ab initio, by any mistake or omission in his return upon the writ. Parker v. Pattee, 7 Con. 530. SCHOOL DISTRICT.

A vote by a school district, whose limits have not been defined by a legal vote of the town in which it is situated, to raise money, is void; and a warrant by the selectmen of the town to collect the money, is no protection to the collector, and if he collect the money by distress, he is a trespasser. Johnson v. Dole, 4 N. H.

Cas. 478.

SEAL.

It seems, that a seal is necessary to give an instrument, in other respects sufficient, the full effect of a deed. Montville v. Haughton, 7 Con. 543.

SEAMEN. See MARINER.

SECURITY. See CHANCERY, 1, 2.

SERVANT. See HIRED SERVANT.

SET-OFF.

1. Where a justice of the peace issues his process, which is served according to law on a defendant, the latter cannot turn round and sue the plaintiff before another justice for any debt or demand arising from contract not exceeding one hundred dollars, but must submit his claim by way of set-off, to the justice before whom the plaintiff has brought his suit. Slyhoof v. Flitcraft, 1 Ashmead, 171.

2. A debt remains mutual as much after verdict as before, and the verdict does not annihilate or extinguish the debt; it only amounts to conclusive evidence of the debt, and the same right exists to set it off after verdict as before. Bell v. Cowgell, 1 Ashmead, 7.

3. In assumpsit against two, their several claims against the plaintiff cannot be a set-off to his demand against them. Ross v. Knight, 4 N. H. Cas. 236.

4. When two parties have mutual executions against each other, either party is entitled, under the statute of New Hampshire, to have one execution set-off by the sheriff against the other, whatever may have been the nature of the actions, in which the executions may have been obtained. Shapley v. Bellows, 4 N. H. Cas. 347.

SHERIFF.

A refusal by a sheriff to pay over, on demand, money which he has collected, is a breach of his duty, for which case may be maintained. Moody v. Mahurin, 4 N. H. Cas. 296.

See RETURN.

SPECIFIC PERFORMANCE. See AGREEMENT, 1, 2.

STATUTES.

1. It is a settled rule in the construction of statutes, that every affirmative statute is a repeal by implication of a previous affirmative statute, so far as it is contrary thereto; for leges posteriores, priores abrogant. Commonwealth v. Cromley, 1 Ashmead, 179. 2. A subsequent statute revising the subject matter of a former one, and evidently intended as a substitute for it, although it contains no express words to that effect, must operate to repeal the former, to the extent to which its provisions are revised and supplied. Ib.

3. When a statute inflicts a penalty for the doing of a particular act, that act is by implication prohibited and illegal. Roby v. West, 4 N. H. Cas. 285.

4. When a statute makes an act illegal, when done, no subsequent repeal of the statute can make it legal. Ib.

5. To a statute explicitly retrospective, to a certain extent, and for a certain purpose, the court will not, by construction, give a retroactive operation, to any greater extent, and for any other purpose. The Thames Manufacturing Company v. Lathrop, 7 Con. 550.

6. Therefore, where it was provided, by a legislative act, that 'in all cases in which the assessors in any town had theretofore omitted to lodge an abstract of the assessment lists of such town in the town clerk's office, by the 1st day of December, such assessment lists should not, for such cause, be considered or adjudged void; but all taxes, which had been theretofore, or should be thereafter, laid and imposed according to such assessment lists, might, notwithstanding, be levied and collected ;' it was held, that although such act might have effect so as to authorize the levy and collection of taxes previously laid on assessment lists thus defective, which had not, at the time of its enactment, been levied and collected, it could not be extended, by construction, so as to affect a suit, previously brought and then pending, against the selectmen of a town, for the taking of property, under a warrant from them, to satisfy a tax, laid on such defective assessment lists. lb.

7. If a statute be not, in its terms, explicitly retrospective, the court will not, by construction, give it a retrospective operation. Perkins v. Perkins, 7 Con. 558.

8. Therefore, where a statute provided, that whenever any action shall be brought to recover a penalty,' &c. if on the trial of such action the title of land shall be in dispute, and a record thereof

be made, an appeal shall be allowed in such action; it was held that no right of appeal was acquired, by virtue of such statute, in an action commenced a few days before it became a law, although such action was in other respects within the statute, and the trial and motion to appeal took place afterwards. lb. 9. Public statutes, in the absence of any provision expressly fixing a different time, take effect from the rising of the General Assembly; of which the court will take judicial notice. Ib. STOPPAGE IN TRANSITU.

Where goods were sold in Philadelphia on credit, and placed on board a packet by the vendor, and directed to the vendee who resided in the state of Delaware, and on the arrival of the packet at the landing, they were demanded by the vendee, but the captain refusing to deliver them unless paid a balance due for former freights, which the vendee not doing, they were brought again to the city of Philadelphia, and the vendee becoming insolvent, the captain attached the goods for his balance, as the property of the vendee, and afterwards, the vendor tendered the amount of freight due upon the goods, and demanded them of the captain, and upon his not delivering them, he brought replevin; held, that the vendor, under the circumstances, was not deprived of his right to stop the goods in transitu. Allen v. Mercier, 1 Ashmead, 103.

SURETY. See GUARANTY; PROMISSORY NOTE, 6.

TAXES.

1. A tenant in common for life of one third part of real estate, is bound by law to pay one third of the taxes assessed thereon, and one third of the expenses of the necessary repairs of the premises, made for the common benefit. Anderson v. Greble, 1 Ashmead, 136,

2. As the power of taxation is derived exclusively from statutory provision, the requirements of the law must be strictly complied with. The Thames Manufacturing Company v. Lathrop, 7

Con. 550.

3. Therefore, where the assessors, in the year 1827, omitted to lodge an abstract of the assessment lists in the town-clerk's office, by the 1st day of December in that year, though they lodged it on the 20th of that month, ten days before the meeting of the board of relief; it was held, that such assessment lists, by reason of such omision, were invalid, and no tax could be lawfully laid and collected thereon. Ib.

4. Where a town tax was voted, by the town, in November, 1823, on the list of 1823, and in August 1824, after such list was.per

fected according to law, a rate-bill was made out thereon, which, with a warrant annexed, was put into the hands of the collector for collection; it was held, that this was a legal tax. Montville v. Haughton, 7 Con. 543.

5. A collector of town taxes, being an authorized agent to collect moneys due the town, it is lawful for such town to take a bond with surety, from such collector, for the faithful performance of his duty. Ib.

See OFFICER.

TENANT FOR LIFE. See TAXES.

TENANT IN COMMON.

Anderson v.

Tenants in common are mutually bound to contribute to the reparation of houses, mills, &c. held in common. Greble, 1 Ashmead, 136.

TIME.

In the computation of time from a date, or from the day of a date, the day of the date is to be excluded. Rand v. Rand, 4 N. H. Cas. 267.

See LEASE, 2.

TOLL.

1. When individuals under a charter from the government construct works for the public accommodation and open them to the use of the public, this is in law a dedication of the works to the public use, and no toll can be legally demanded, unless it be authorized by the legislature. Olcott v. Banfill, 4 N. H. Cas. 537.

2. And works erected without a charter from the government, may be dedicated to the public use in such a manner as to render it illegal to take toll. Ib.

TRIAL. See CHARGE TO THE JURY; Evidence, 14.
TROVER.

1. Upon a single count in trover, a plaintiff may recover the value of several articles taken and converted at several distinct times and places. Barron v. Davis, 4 N. H. Cas. 338.

2. A, having by wrong taken the goods of B, and sold them to C, B brought an action against C, for the goods, which action was adjusted between the parties, and a certain sum received by B, of C, for the goods; it was held that this adjustment was no bar to an action of trover by B, against A, for the same goods, although it might go to mitigate the damages. Ib. 3. Where, in trover, the conversion was alleged to have been made by the defendants, and another person, on whom the writ was not served, it was held, that the action was sustained by proof of a conversion by the defendants alone. 1b.

1. Trustees of every description, neglecting to apprise those interested in the fund, of the amount due to them, and to offer payment in a reasonable time, are chargeable with interest, and a demand by legatees, heirs, or creditors, is not necessary. Merrick's Estate, 1 Ashmead, 305.

2. A trustee would be justified in appropriating the interest, or even part of the principal of a fund placed in his hands for accumulation, in trust for a minor, until such minor arrives at full age, for his maintenance and education, where there is no other property of the minor adequate for these purposes, where the minor is of tender age, without any parent living, there being no devise over, and no third person interested in the fund. Pott's Petition, 1 Ashmead, 340.

3. When a trustee either uses the interest of an accumulating fund, or breaks into the principal, under circumstances that would induce a Chancellor to make a previous decree for maintenance out of the interest or principal of such a fund, the court will allow him, in the settlement of his accounts, credit for such expenditures, as if a previous order had been made.

1 b.

See ASSIGNMENT, 1.

VARIANCE. See EVIDENCE, 25, 27.

VENDOR.

Where a lot of ground was sold by parol, the vendor retaining the title deeds, and the vendee took possession, and commenced building a house, it was held, that the vendor was entitled to the consideration money against the lien creditors. Kline v. Lewis, 1 Ashmead, 31.

VERDICT.

In trespass, de bonis asportatis, the defendant pleaded, first, not guilty, upon which issue was joined; and secondly, in bar, that he took the goods as the property of a third person by virtue of a writ of attachment and issue was joined on the plaintiff's property in the goods. The jury found that the goods were the property of the plaintiff at the time of the taking, and assessed the damage, whereupon judgment was rendered for the plaintiff. A writ of error being brought, the verdict was held to be imperfect, and the judgment reversed for that cause. Holman v. Kingsbury, 4 N. H. Cas. 104.