Hughes v. Elsher

• Decision Date: 28 December 1880
• Citation: 5 F. 263
• Parties: HUGHES v. ELSHER.
• Court: U.S. District Court — District of New Hampshire

5 F. 263

HUGHES v. ELSHER.

United States Circuit Court, D. New Hampshire.

December 28, 1880

W. H Dodge and Mr. Copeland, for plaintiff.

Thomas J. Smith, for defendant.

LOWELL C.J.

In this action of covenant broken, the plaintiff, Patrick Hughes, of Dover, New Hampshire, declares that the defendant, Martha Elsher, of Jersey City, New Jersey, in October, 1870, in consideration of $3,500, paid her by the plaintiff, made and delivered to him a deed, executed by her as guardian of her minor children, purporting to convey to him certain land in Dover, and covenanted that she had complied with the requirements of the statute in relation to sales by guardians, whereas she had failed to follow the statute in certain particulars, by reason of which omissions the plaintiff acquired no title to the lands.

The defendant pleads that the plaintiff has brought a bill of complaint and motion for new trial against her in the supreme court of New Hampshire, a copy of which is made part of the plea, in which the plaintiff sets out that he agreed with the defendant to pay her the sum of $10,000 for the brewery of her late husband in Dover, consisting of the land in question and certain personal property; that he received from her the deed mentioned in the declaration, and a deed of her dower estate, and there is a clear implication that he received a suitable transfer of the chattels and personalty that he paid about one-third of the purchase money in cash and gave her six notes for the remainder, three of which he paid at maturity, and the other three have been sued by the defendant, and judgment recovered against him and satisfied by levies upon his property; that since the recovery of the judgments he had learned the invalidity of the defendant's deed, and now asks for a new trial of the three actions in which these judgments were recovered.

The pendency of the bill is pleaded in abatement. The plaintiff makes three objections to the plea, all of which must prevail: (1) It does not appear there is an action pending elsewhere. The bill of the plaintiff is an application to the equitable jurisdiction of the supreme court of New Hampshire to enable him to maintain one. To test the soundness of this position, it is only necessary to suppose that I should abate this writ, and then the supreme court of New Hampshire to enable him to maintain one. To test the soundness of this position, it is only necessary to...