Volume 66 — New Hampshire Reports

Casia, for diverting water from the plaintiffs’ mills,which are situated about one hundred rods below the outlet of Long pond in Coricord, on the stream that flows from the pond to Mérrima,ok river. Facts agreed. The defendants are engaged in the business of cutting and storing ice and selling it to the citizens of Concord.

Bill in Equity, by the special administrators of H. Sanborn, for instructions on the question whether it is their duty to comply with the request of C. H. Sanborn, a son of the testator, who has appealed from a probate decree allowing his will, for an opportuiuty to examine the diaries kept by the testator, H. Sanborn, during the last seven years of his life. The reasons of appeal are insanity and undue influence. The executors under the will object to such examination.

Assumpsit. Facts agreed. The defendant was arrested upon She original writ upon an affidavit for concealing bis property. Writ dated December 29, 1888. The defendant made an assignment for the benefit of bis creditors January 16, 1888, under the statute. An assignee was appointed, who has proceeded to sell what real and personal property came into his hands, and has set-tied his account in- the probate court since the commencement of this suit.

Petition for partition, and that, the amount due the plaintiff on account of expenditures on the common property be ordered to be paid to her by the defendant. The answer denies title to any interest in .the premises in the plaintiff, and alleges that if any expenditures have been made by the plaintiff it was done without the defendant’s knowledge or consent. Facts found by a referee.

<p>A and B owned adjoining lots, on each of which was a building. Each deeded to the other the space between his building and the common boundary, “ to be used as a common passway for our mutual benefit, and for no other purpose but a passway.” Held, that' the effect of each conveyance was to divest the grantor of his title to the land conveyed, so as to preclude him, or a successor in title, from maintaining trespass for an obstruction thereon.</p>

[copy of tbte statute.] An Act to Authorize the Suppression of Common Nuisances by ' Courts of Equity. Section 1. Any building, place, or tenement, in any town or city that is resorted to for prostitution, lewdness, or illegal gaming, or that is used for the illegal sale or keeping for sale of spirituous or malt liquors, wine, or cider, is declared to be a common nuisance. Sect. 2.

Case, for injuries. The writ is dated August 18, 1888. The declaration alleges negligence of the defendants in the discharge of a duty, whereby the deceased intestate was subjected to mental and bodily suffering, was strangled and drowned April 28, 1888.

. Foreign Attachment. Trial by jury of the question of chargeability of trustee. The plaintiff claimed to hold the trustee for the value of a stock of goods and other property, sold by the defendant to the trustee, February 28, 1887. The trustee’s deposition, taken by the plaintiff, showed that he was chargeable for a small sum due the defendant for the keeping of his horse. The jury returned a verdict charging the trustee in the sum of $18 for keeping the horse.

Bill in Equity, against the Concord Railroad Corporation and others, directors and officers of the defendant corporation. The facts are stated in the opinion.

Bill in Equity, in which the plaintiff prays for a receiver, that the copartnership business between the parties may be wound up, the debts due to and from the firm ascertained and paid, and the surplus stock and assets divided between the partners.

Bill in Equity, filed October 20, 1886, for the rescission of a contract for the purchase of a farm and other property, and for the return of money paid as a part of the purchase-money. Facts found by the court. The defendant, Sophia A. Tolles, employed R, a real estate agent in Nashua., to sell her farm.

Case, upon c. 91, Laws of 1887, for maintaining a structure in the nature of a fence unnecessarily exceeding five feet in height, for the purpose of annoying the plaintiffs, owners of adjoining property. The structure complained of was about twenty-five feet long and ■eleven feet high, and was erected eight or ten years ago.

Assumpsit. The jury returned a verdict for an amount larger, in the opinion of the court, than should have been awarded. The defendant moved to set aside the verdict as excessive and as against the weight of evidence. The motion was denied, and the defendant excepted.

<p>Case. Demurrer to a declaration by a married woman alleging that the defendant seduced her husband and alienated his affections from her.</p>

Petition, for a mandamus to compel the defendants, the selectmen of Walpole, to assign to the plaintiffs a share of the school-money for the year 1888, proportionate to the assessed valuation of the district for that year. The town is divided into two school-districts, of which the plaintiffs are one and the remainder of the town the other. The assessors’ valuation in 1888 of the plaintiff district was <$145,168, and of the town district 11,011,406.

Petition, under Laws of 1887, c. 77, signed by twenty legal voters, for the abatement of a liquor nuisance in Fitzwilliam. It alleges that “ the building occupied ” by the defendants “ as a drug store, savings-bank, and post-office ... is a place where spirituous liquors are unlawfully kept and sold, and is a common nuisance,” and prays that “ the same may be abated, and for such further relief as may be just.” The defendants demur.

Petition, for a writ of habeas corpus, presented to a justice of this court, and adjourned into the law term. The plaintiff was summoned to testify before a justice of the peace in an inquiry made by the justice in the town of Littleton concerning a Little-ton election, under Laws of 1885, c. 94, s. 5. Counsel raised and argued the question whether the police court of Littleton has exclusive jurisdiction of the inquiry,

Case, for killing the plaintiff’s ox. There was also a count in trover. Pacts found by the court. The ox and three other cattle belonging to the plaintiff strayed from his pasture into Glover’s adjoining field through Glover’s insufficient fence. Afterwards the ox (under the circumstances stated in the opinion) was left in the highway, strayed upon Glover’s land, and thence to the railroad, and was killed' by the defendants’ locomotive.

<p>Cask, for injuries received by a traveller by reason of an alleged defect in a highway. Verdict for the defendants. The plaintiff proposed to show that Mrs. Estes, who was riding with the plaintiff in a sleigh at the time of the accident, was thrown out and injured, and that the town settled an action for damages brought by Mrs. Estes by paying her claim. The evidence was excluded, and the plaintiff excepted.</p> <p>The place of the accident was a curve on the side of a hill. The alleged defect in the road was its sloping form and icy condition, and the want of a railing. The plaintiff proposed to ask a witness whether there was a custom among travellers in carriages of shouting or giving warning at the top of the hill to avoid meeting other travellers at this place, and whether the witness and her husband had given and received such notice when approaching the spot. The evidence was excluded, and the plaintiff excepted.</p>

Writ of Entry, for land in Lisbon, and a Bill in Equity, brought by the defendants against the plaintiff for a reformation of a mortgage. Facts found by the court. The Little farm is one tract of land in the towns of Lyman and Lisbon. The buildings and most of the farm are in Lyman. The part in Lisbon is claimed by both parties. O. and G. A. Carr, owning the farm, conveyed it to Clough by a mortgage of which the defendants ask a reformation.

<p>A decision of the court at the trial term granting a new trial upon a petition under the statute, will be reversed at the law term when it appears that there was no evidence upon which a new trial could be legally-granted.</p> <p>When a question of fact raised upon a motion for a new trial has been once decided, it will not be reconsidered upon the same motion.</p> <p>Upon hearing a petition for a new trial under the statute, the judge at the trial term reported that there was reason to believe a mistake was made in a certain finding of fact at the original trial of the cause. Held, not sufficient to warrant the granting of a new trial.</p> <p>When it does not appear that the trier of the cause was influenced by passion, prejudice, partiality, or corruption, or unwittingly fell into a plain mistake, the remedy for any other supposed mistake must be sought before judgment, and not left to a motion for a new trial.</p>

<p>Bill in Equity, by the surviving executor of the will of Col-bee C. Benton, late of Lebanon, for interpretation of the will and direction as to the distribution of the estate. By the sixth clause of the will a large number of small legacies are given to relatives, “ to be paid to each as soon as may be after the decease of my said wife Susan A.,” among them being one of $500 to James G. Benton, “to be equally divided between himself, his wife, his son James, and his daughter Mary.”</p> <p>“Lastly, after the decease of my said wife, Susan A., and in the final disposition of my property, I hereby give and bequeath the rest, residue and remainder of my estate wherever found or however situated, or any property reverting to my estate in consequence of a non-compliance with the conditions of some of my bequests, to my brothers, nephews, nieces, and their wives herein-before named. And I direct my surviving executor, after paying all debts, costs, and expenses of administration, to distribute all my estate found and remaining in his, said executor’s hands, to my •relatives above referred to, in a proportion corresponding with the sums already bequeathed under the sixth paragraph.”</p> <p>After the death of the testator and before the death of his wife, five of the persons to whom legacies were given in the sixth clause died, among them James G. Benton. The plaintiff asks direction to whom the residue of the estate in his hands shall be paid.</p>

Homestead Claim. Facts found by the court. October 22, 1888, the plaintiff commenced the levy of an execution against the defendants upon a farm in Enfield, in which the defendants now claim a homestead. September 8,1888, the defendants exchanged this Enfield farm with one Colby, for a small farm in Franklin, and gave him a warranty deed of it.

Petition, for habeas corpus. The petitioner was summoned to give his deposition in a proceeding under the liquor nuisance act, against Lucy and Frank Mozrall. He appeared before the magistrate and refused to testify, or to answer any question, on the ground that the proceeding is in the nature of a criminal complaint, in which the law does not authorize the taking of depositions, and because c. 77, Laws of 1887, is in conflict with the constitution.

Assumpsit, to recover $144.50, the price of a yoke of oxen. Jesseman, having twenty-four oxen, advertised them for sale at auction April 2, 1887, but, having sold some of them before that day, he procured Batchelder to put in six of his oxen to make the number good. The auctioneer offered for sale a pair of Batchelder’s oxen, and called for bids.

Trespass quare clausum. Plea, the general issue, with a brief statement alleging that the acts complained of were done by the defendant as a deputy sheriff in the service of a search-warrant. Facts found by the court.

<p>North pond in the town of Stark, being a public water, is not “ wholly within the control ” of the littoral proprietors, and the public fishery in it is not affected by Gen. Laws, c. 179, s. 1.</p> <p>Indictment, under Gen. Laws, c. 179. s. 1, for catching and killing ten trout.from North pond in Stark, May 1, 1884. A verdict was taken for the state, subject to exceptions. The pond is a natural body of water, about a mile and a third long, of irregular shape, averaging about one third of a mile in width. The defendant offered to show that its area is from 800 to 500 acres.</p>

Bill in Equity, for an injunction forbidding the defendant’s fishing in North pond in Stark. There was a temporary injunction which the defendant moved to dissolve.

<p>Appeal, by the plaintiff's from an award of. damages made by the board of commissioners and selectmen for land of the defendant taken for the plaintiffs’ railroad. At the last September term, the plaintiffs waived and abandoned their appeal, and thereupon the court ordered the award to be affirmed, with interest and costs. The defendant demanded a trial by jury, and excepted to the refusal of the court to grant it.</p>

<p>A judgment, charging one who is summoned as trustee of one member of a firm, entered upon an erroneous disclosure that the debt was owing to the individual member when it was in fact to the firm, is no bar to a suit by the firm to recover their debt.</p>

Assumpsit, to recover the price of one barrel of alcohol ordered at Berlin by the defendants through the plaintiffs’ agent, and shipped by the plaintiffs in Boston, where the sale was legal, to the defendants, in accordance with the order. A referee found that the agent did not know, and had no reasonable ground for believing, that-the alcohol, if furnished, would be sold as a beverage or contrary to law. •

CASE, by the administrator of Martha L. Huntress, the plaintiff’s wife, who was killed at a grade crossing of the defendants’ road. Verdict for the plaintiff. The questions raised by a motion for a nonsuit were reserved.

<p>The lien of a conditional vendor will he sustained against an attaching ' creditor of the vendee having notice of the condition, although the terms of the contract have not been sworn to and recorded, as provided by the statute of 1885.</p>

Case, for carelessly causing the death of the plaintiff’s intestate by running upon her with a locomotive and train of cars at a high-, way crossingin Epping, April 23, 1888. At the close of the plaintiff’s evidence a nonsuit was ordered on motion of the defendants, and the plaintiff excepted. The plaintiff’s evidence was reported in full,.and appears sufficiently in the opinion of the court.

Assumpsit, to recover $100 and interest from the date of the writ. Facts found by the court.

Bill in Equity, to set aside a discharge of a mortgage, and for an assignment of the mortgage to the plaintiff. Facts found by the court. The mortgage is of a farm in Derry, and was made September 15,1878, by the defendant, Edward L. Jones, to secure a note for $2,750 given for money borrowed of his father, James L. Jones, who was then the husband of the plaintiff and resided in the city of New York.

<p>On a motion for a nonsuit, the construction most favorable for the plaintiff must be given.</p> <p>When all the circumstances under which an accident took place are shown, and upon an examination of them nothing is found in the conduct of the plaintiff to which negligence can fairly be imputed, the mere absence of fault may justify the jury in finding due care on his part.</p> <p>The fact that a person, in attempting to cross a railroad track, does not before entering upon it stop or look or listen to ascertain whether a train is approaching, is not conclusive, as matter of law, of a want of due care on his part.</p>

Trespass, for taking and carrying away partnership property of the plaintiffs, attached by the defendant, a deputy sheriff, on a writ against the plaintiffs as joint debtors. The plaintiffs were copartners in the business of manufacturing nuts and bolts. The Newmarket Savings Bank, holding a joint note of the plaintiffs,, brought suit upon it, and attached a nut-machine owned by the plaintiffs as copartners, and took possession of it by a keeper.

Trespass, for false imprisonment. The defendant obtained judgment against the plaintiff in a writ of entry for the land, and for costs taxed at $12.25 including seventy-five cents not lawfully taxable, sued out a writ of possession, and put it in the officer’s hands for service.

<p>Petition, of Marfil a M. Ricker, widow, to be admitted to practice as an attorney.</p>

<p>Notice to a railroad conductor that a passenger going on his train is in feeble health is notice to the corporation, and the omission by the passenger to repeat such notice to another conductor who takes charge of the train before the end of the journey does not constitute contributory negligence.</p> <p>The question whether a passenger who is in feeble health is guilty of contributory negligence in attempting, with the assistance of the defendants’ servants, to alight from the cars at an unsuitable place, the train having been drawn beyond the station, is for the jury.</p>

The executor objected that the claim was one which the commissioner was not authorized to examine and allow. The court overruled the objection, and the defendant excepted. The plaintiff offered herself as a witness, and was allowed to testify, subject to exception, to matters to which the deceased could not have testified if living. The executor excepted to the testimony of the plaintiff to any facts occurring in the lifetime of the deceased.

Case, for injuries to the plaintiff’s horse while in course of transportation over the defendants’ road. Facts found by referees, who reported generally for the plaintiff to recover $350. At the time the horse was shipped, the defendants had the following regulation with respect to the transportation of live animals, which was found to be reasonable : “ The rates for transporting animals are based upon and intended only for those of ordinary value, viz., horses, $200. . . .

Attachment for Contempt, for violation of an injunction against a liquor nuisance. At the trial James E. French was called as a witness by the government, and testified that he was collector of internal revenue for the district of New Hampshire, and had been summoned to produce certain records or memoranda kept in his office, and that, under instructions from the commissioner of internal revenue, he declined to produce them or to furnish copies.

Debt, for rent of the plaintiffs’ mill from July 1, 1887, to July 1, 1888. Plea, the general issue, with a brief statement that the defendants were evicted by the plaintiffs from a portion of the demised premises, April 1, 1885, and were kept out of the possession thereof ever afterwards.

Assumpsit, to recover back money paid for taxes which the plaintiff claims were illegally assessed upon the parochial school property of the Catholic church in Laconia, from 1879 to 1888. inclusive.

Debt, on a judgment recovered in Maine by the plaintiffs •against the defendant Cate, in 1871, upon default. The officer’s return of service on the original writ was, “ I made service on the within named defendant by delivering a summons in hand for his appearance at court.” The defendant objected that the return did •not show that the summons was given by the officer to the defendant in hand, as required by the Maine Revised Statutes.

Debt, on the bond of Otis G. Hatch, executor of the will of Clara Salvage. The defendant is executrix of the will of John Runnells, who was one of the sureties on the bond. Facts found by the court.

Assumpsit, to recover interest on a legacy given the plaintiff by a will, of which the defendant is executor and residuary legatee. Verdict for the defendant. The testator died in 1881. In 1887 the defendant paid the face of the legacy to the plaintiff, who thereupon assigned it to the defendant, and executed a release under seal of all claims under the will.

<p>Petition for the abatement of taxes assessed in 1887.</p>

Case, to recover the value of merchandise, which the defendants, as common carriers, received from the plaintiff, and did not deliver to the consignee. On the 20th day of January, 1888, M. E. Hagerty, the defendants’ agent and servant, received from the plaintiff a box weighing thirty-seven pounds, and containing silver ware of the value of $680.20, to be carried by the defendants to the city of New York and there delivered to Theodore B. Starr.

Case, for injuries upon a highway. The plaintiff’s evidence tended to show that while she was walking upon a sidewalk in a highway, the sidewalk sank beneath her, and she was injured. The sidewalk was built several years before the accident by the adjoining owner, who dug a cellar and erected a building upon the line of the highway. At the time of the building, an opening was left in the cellar wall designed for a bulkhead.

<p>A tenant in common, who occupies or uses more than his share of the common property, is liable to his co-tenants, in some form of action, for a. balance due from him to them on an equitable accounting.</p> <p>Assumpsit, for use and occupation. Facts found by a referee. The parties are brothers, and owners in common of the home-farm of their father, who devised it to them, and who died in 1872. Since it became their property, a part of it has been used by both in common as pasture and wood land, and a small lot has been exclusively occupied by the plaintiff. With the plaintiff’s-knowledge, and without objection, the defendant has occupied the rest, and taken all the crops from it, except a small part taken by the plaintiff. The plaintiff was never excluded from .occupying, or from taking the products. He has received all he asked for, or attempted to take. If the defendant is liable for rent (estimating the use and occupation at the rental value), there would be a balance of $612.42 due from the defendant to the plaintiff. There has never been any mutual understanding, or any promise on the defendant’s part, that he would in any way make any compensation for his occupation of any part of the farm, or for his use . of the plaintiff’s undivided share. The referee finds, as matter of fact, that the defendant did not agree to pay the plaintiff for either past or future occupation, and also finds, so far as it is a matter of fact, that the defendant is not estopped to deny that he so agreed, and that the defendant has never made any actual contract, either verbal or tacit, to compensate the plaintiff, or to account for produce. If the defendant is to be held liable in this action, he must be so held upon a contract implied in law.</p>

<p>Assumpsit, upon an account for services rendered and money expended in the unsuccessful prosecution of a petition for a highway.</p>

<p>When an agreement for a compromise has been signed by the requisite number of creditors, as provided in Laws 1885, o. 85, s. 11, a creditor whose debt is provable is entitled to receive the percentage on the amount of his claim as stated in the list of creditors filed by the debtor, although he has not signed the agreement nor proved his claim.</p> <p>In such a case, if the debtor refuses to pay, the creditor’s remedy is by a suit to recover the percentage, and not by petition to the insolvency court to set aside the discharge.</p>

<p>When the question is not one of title to an office, hut whether the plaintiff shall be permitted to perform its duties without interference, mandamus is the proper remedy.</p> <p>When a later statute is so inconsistent with a former one that both cannot be in operation at the same time, the subsequent act must prevail as being the more recent expression of the legislative will, although no express words to that effect are used.</p> <p>So much of s. 22, c. 1,404, Laws 1853, and of s. 11, e. 165, Laws 1878, as authorizes the city councils of the city of Nashua to elect street commissioners, is repealed by Laws 1889, c. 248, s. 1, providing for the election by the people of “ a street commissioner to superintend the streets, roads, and bridges of said city.”</p>

Assumpsit. Facts found by a referee. September 1, 1877, the defendants, who were manufacturers of doors, sash, and blinds, etc., at Manchester, entered into a contract with Webster & Co., of Lawrence, Mass., whereby they were to furnish Webster & Co. articles of their manufacture in an unfinished state, which Webster & Co. were to finish and sell for them upon terms stipulated in the contract.

Writ of Entry. A referee reported as follows : On the 15th day of October, 1856, James Whitfield, then the husband of the defendant, Fannie E. Mills, gave to David Wilson a note for $300, secured by mortgage on the premises described in the writ. After the delivery and record of the mortgage, the defendant signed it without witnesses or seal. David Wilson died April 5, 1872.

Trover, for certain articles of personal property taken by the plaintiff, sheriff of the county, on a writ against one McGregor, and receipted for by the defendant, in the usual form, at a valuation of 8150. The actual value of all the property was in fact only 835. A portion of the property, of the value of 823.50, was afterwards, and before the demand upon the receiptor, taken by one Young on a mortgage which existed in his favor at the time of the attachment.

Case, for injuries from negligence. Two actions • were tried together, one by the plaintiff as administrator, for injuries resulting in the death of his minor son, Willis Felch, and one by the plaintiff in his own right, for medical and surgical attendance upon Willis, and for damage to the plaintiff’s team from the same accident.

Probate Appeals, by creditors — one from the decree accepting the report of a commissioner of insolvency appointed upon the petition of a special administrator, and one upon the refusal of the judge of probate to vacate the insolvency proceedings. The appellants presented their claims before the commissioner, appeared with counsel, and offered testimony.

Appeal, by the defendant from a judgment rendered against him by a justice of the peace on a complaint for assault and battery. The question is, whether the defendant is bound to pay to the justice the fees for the appeal, recognizance, and copies required by Gen. Laws, c. 258, s. 2, and to tbe clerk the entry fee required by Gen. Laws, e. 290, s. 4.

Appeal of the defendant, Wood, from a judgment of a justice of the peace, charging him, in scire facias, as indorser of a writ in an action brought against the plaintiff, Benway, by Propre & Co., residents of Vermont.

Indictment, for bringing one Emma IL Gee, a poor and indigent person, having no visible means of support and no settlement in Claremont, from Massachusetts into Claremont, in this state, and leaving her there with intent to make the town of Claremont chargeable with her support. As bearing upon the question of criminal intent, the defendant offered the public statutes of Massachusetts, c. 79, ss. 2, 9, 14. The evidence was rejected, and the defendant excepted.

<p>A legacy made payable at a day fixed in the will, bears interest only from the time- it becomes due.</p>

Writ of Entry, to foreclose a mortgage. The only question was the amount of the mortgage debt. The mortgage note was dated July 3, 1880, for $7,000, with interest after six months. Interest was paid on this note at the rate of seven per cent, from its daté to January 3, 1888, and from January 3, 1888, to September 3, 1888, at the rate of six per cent, per annum, and indorsed on the note simply as interest paid. The writ was dated April 29, 1889.

Bill in Equity, for specific performance. Facts found by a referee. In March, 1882, the plaintiff owned timber land, and a mill and other buildings, called the Stark Mill property, and was engaged in the business of manufacturing lumber. The property had been mortgaged to Emery, who had obtained a judgment of foreclosure and been put in possession on a writ of possession, and the plaintiff’s time of redemption had nearly expired.

In the writ, which is dated May 3, 1889, the defendant is described as “ of Milan in the county and state aforesaid.” May 6, 1889, an officer attached real estate and made return concerning the defendant, “ not to be found in my precinct.” The action was entered at the October term, 1889, and continued for notice, and notice was given by publication.

Writ of Entry, to foreclose a mortgage upon premises in Colebroolc. Facts found by a referee. The mortgage was made March 4, 1879, by the defendants, to George Aldrich, the plaintiff’s father, to secure a note, signed by J. D. Little, for $204.10. George Aldrich has since died, and the plaintiff is his sole heir at law.

Case, for injuries received by reason of the defendants’ failure to keep at Berlin a passenger depot reasonably sufficient for the accommodation of the public.

<p>An entry on a book of accounts, made in the usual course of business by a person since deceased, is admissible in a suit between third parties, there being evidence aliunde that he had means of knowledge, although the entry may have been in his favor.</p> <p>In an action for injuries to the plaintiff’s person from the negligent management of the defendants’ locomotive on a highway crossing, an entry by a wheelwright (since deceased) against a third person on his book of accounts of “ sixteen spokes, twenty cents apiece, $3.20,” made by him in the usual course of his business, is admissible to show the character and extent of the injury to the wheel, — it being a disputed fact whether a wheel of the wagon in which the plaintiff was riding at the time of the accident was damaged by collision with the locomotive, or by the plaintiff’s cramping the wagon and throwing himself out, — and there being evidence aliunde that the wheel was repaired by the wheelwright.</p> <p>In such an action, refusal to instruct the jury that upon the question of the defendants’ want of care the statutes prohibiting the shifting of cars on a crossing and requiring signals to be sounded upon the approach of a locomotive cannot be considered, is not error, although the declaration does not count on either statute.</p>

Bill in Equity, setting forth that September 6, 1886, the defendant sold and conveyed to the plaintiffs, with full covenants of warranty, the Melcher hotel property in Groveton, with all the privileges and appurtenances thereunto belonging; that one of the privileges and appurtenances was the right that no tavern or public house should be built on a lot (about one acre) situated on the opposite side of the Grand Trunk Railway, and separated from the Melcher property only by…

Petition, for a mandamus against the president of the senate, filed in compliance with a request made by the governor in the folloAving letter: Antrim, Mar. 31, 1890. Daniel Barnard, Esq., Attorney-General: Dear Sir: Please take such steps as you think necessary to cause the president of the senate to exercise the powers of the office of governor during the vacancy caused by my illness.

Bill of Interpleader, by the police justice of the city of Portsmouth against the county of Rockingham and the city of Portsmouth. Pacts agreed. The plaintiff has in his hands the sum of $400 received as fines from residents, of Epping for violations of c. 109, Gen. Laws. All the complaints on which the fines were imposed were endorsed by the county solicitor in the name of the county, and all the costs of prosecution were assumed by the county.

Case, for malicious prosecution. Verdict for the plaintiff. At the October term, 1885, the grand jury, on the complaint of the defendant, returned an indictment against the plaintiff for larceny (under Gen. Laws, c. 278, s. 11) alleged to have been committed, and which was committed, if at all, in March, 1880. A nolle prosequi was entered at the October term, 1886. The plaintiff has always resided in this state.

Petition, for a writ of quo warranto to determine the title to the office of board of education of the town school-district of Newington, the… Held: and they therefore request that a warrant be issued by him for a meeting of the inhabitants of the school-district, for the purpose of choosing a moderator, clerk, and board of education consisting of three members, to be chosen for one, two, and three years respectively.” Whereupon the justice, on the 25th of March, issued and…

Petition for a mandamus, filed at the trial term, where a case was reserved on facts found by the court. The plaintiff was a candidate for tbe office of senator iii the Somersworth district (No. 12) at the election in November, 1890, and tbe defendant is town-clerk of Rochester.

<p>Bill in Equity, alleging among other things that the plaintiffs were chosen members of the house of representatives which is to assemble on the first Wednesday of January, 1891, and that the defendant is clerk of the house which will dissolve, by constitutional limitation, seven days before that day, and praying that he be enjoined from placing the names of certain persons upon the roll of members of the house of 1891 for its organization. The bill was filed and presented to two of the justices in vacation, and was by them adjourned for trial by the whole court at Concord, where evidence was introduced, and the case was argued and decided January 6, 1891.</p>

Assumpsit, on a joint and several promissory note for $1,000, Facts found by the court. In the spring of 1886 the defendant’s intestate acimowledged his liability, and renewed his promise to pay the note. He died in the fall of 1886. The defendant, his son, was appointed administrator of his estate October 26, 1886.

Case, for obstructing the plaintiff’s way. Trial by the court. The defendants’ land, upon which stands their bank block, lies upon the westerly side of Main street in Concord, and extends westerly on Warren street to the plaintiff’s land, upon which is a block containing two stores fronting on Warremstreet.

<p>Money paid by a county for tlie support of an inmate of tlie asylum for the insane who is not a pauper cannot he recovered of the town in which such person has a legal settlement.</p> <p>Assumpsit, to recover the sum of $723.41, paid by the plaintiffs to the New Hampshire Asylum for the Insane for the support of certain insane persons committed to said asylum by the judge of probate for Merrimack county, by virtue of c. 10, Gen. Laws. Neither of the persons was, at the time of his commitment, a pauper, but each had a legal settlement in Concord.</p>

Bill in Equity, by the widow of Nathaniel B. Walker, for her legal share in his estate. Nathaniel B. Walker died in January, 1889, leaving a will, in which he gave one third part of his estate to the' plaintiff, and the remainder to his two sons by a former wife, — the defendants, Edward J. and Charles H. Walker. The defendant Mellen holds in trust for Edward J. and Charles EL.

Assumpsit. November 10, 1887, the plaintiff, as administrator of his father’s estate, by virtue of a license from the probate court, sold at public auction a certain lot of hay contained in a barn on the homestead place of the deceased in Boscawen. The sale took place on the premises. The terms of sale set forth in the notice were cash or a bankable note.

<p>An insane person is liable for his torts to the extent of compensation for the actual loss sustained by the injured party, except when the wrong lies in the intent.</p> <p>Insanity in the defendant is an answer to a claim for greater damages on account of the intent or motive of the defendant.</p>

Assumpsit, by Baldwin’s executors, for the use and occupation of an undivided part of a bobbin mill and its machinery. Facts ’ found by referees. The property was owned by Baldwin and F. B. Ayer as tenants in common, Baldwin’s share being one third.

Debt, upon an insurance policy of $800 on the plaintiff’s cottage, which was entirely consumed by fire. The contract of insurance was made March 5, 1887. Verdict for the plaintiff for $800. The defendants excepted to the refusal of the court to instruct the jury that the plaintiff cannot recover if his statement of the value of the cottage in his proof of loss was false or grossly excessive.

Probate Appeal. In the settlement of the defendant’s account as guardian, in the probate court, he charged himself for a balance of $38. The probate court charged him for. a balance of $275, and he appealed. In this court he was charged for a balance of $216.66. No costs were allowed either party, and the appellant excepted.

Assumpsit, for goods sold and delivered. Writ dated March 29, 1889. Facts agreed. At the time of the sale of the goods, the plaintiffs resided and did business, and have ever since resided and done business, in New York. The defendants resided and did business, and have ever since resided and done business, in Manchester. July 25, 1888, the defendants were adjudged insolvent upon the petition of one of their creditors residing in Boston.

Case, to recover for injuries sustained by the plaintiff, October 5, 1886, in the defendant’s quarry in Francestown. Verdict for the plaintiff. While the plaintiff, as the defendant’s servant, was engaged in removing an unexploded charge of powder by him placed in a hole previously drilled by him and others, the charge exploded, whereby he ivas injured.

Bill in Equity, to foreclose a mortgage given to the plaintiffs in 1876 by Jeremiah Shea, upon two adjoining lots situated on Cedar street in Manchester, with dwellings thereon numbered 119 and 121. The defendant, Alger, claims title to the lots under a 'sale made in 1882 for the non-payment of taxes assessed in 1881.

Bill in Equity, for direction under a will. The plaintiffs are executors of the will of David S. Leach, made April 24, 1877,, which contained among others the following bequests: “3d I give, bequeath and devise unto the sons of David R. Leach, begotten by him during his natural life, my undivided half of a certain parcel of land with the brick buildings thereon called the Martin Block ... to have and to hold the same to them and their heirs and assigns in equal shares,…

<p>Whether there should be a change of the endorsers of a writ, is a question to be settled at the trial term.</p> <p>Evidence that a horse driven by a highway traveller had previously stumbled, is competent in an actionfordamages from a defective highway, without proof that the fact was brought to his knowledge, when it also appears that he had opportunities for becoming informed as to the suitableness of the horse.</p> <p>Statements by a witness inconsistent with his testimony upon material matters may be proved against him.</p> <p>The liability of a town to a highway traveller is not affected by c. 101, s. 1, Laws 1887.</p> <p>A town is not liable to a traveller injured while travelling on a highway, if the accident was not caused by the defect complained of.</p> <p>The fact that a juror believes a statute is unwise or inexpedient does not render him unindifferent, provided it appears that in rendering a verdict he will be guided by the law.</p>

Case. Facts found by a referee. The plaintiff owns a tract of land containing about an acre and a half, in the village of Bristol, bounded on the west by High street. The injury to the land complained of, and for which suit is brought, is caused by the flow upon it of surface-water from a section of High street and the land drained by it.

Probate Appear. Facts agreed. Alice G. Smith, the wife of the appellee, during her last sickness and in expectation of death, made a gift, duly evidenced in writing, of all her personal estate to the appellants as trustees, upon condition that it should take effect only upon her death, and in the presence of three witnesses delivered the property, the gift of which was intended, into-the hands of the trustees, to be by them taken and held as a giftcausa mortis, and divided…

Complaint, by Richard Fowler against Asa Beckman, Reese Owen, and Abram W. Perkins, alleging a violation of a decree in equity. On notice to show cause why an attachment should not issue, the case was heard by a justice in vacation, June 15, 1891, and reserved.

<p>Assumpsit, against a tax-collector for excessive fees paid him by the plaintiff.</p>

<p>Relief against a judgment of record on the ground of accident or mistake will not be afforded when the only accident or mistake is the neglect of the suffering party’s attorney to make a defence which he might have made but did not. In such case the party’s only remedy is in a proceeding against the attorney.</p>

<p>Assumpsit, on the defendants’ three promissory notes, payable to John II. Langley or order. Plea, payment. Facts found by the court.</p> <p>John H. Langley died December 21,1875, possessed of the notes, and leaving a will of which he made his wife executrix, and by which he gave to his brother, Joseph, $125, to his nephew, William N. Langley, $100, and disposed of the residue of his estate as follows : “As to all the rest, residue, and remainder of my estate, I give and bequeath the same to-my beloved wife, Mary S. Langley, to have and to hold the same to her use and benefit forever. It is distinctly understood that my said wife is to be amply supported and maintained out of said estate, during her natural life, and to use and dispose of the same as she sees fit, and at her decease the remainder of said estate, if any, shall go in equal shares to my brothers, Samuel N. and Joseph T. Langley.” The will was proved in January, 1876. The wife was not appointed executrix, but took possession of the testator’s property, including the notes, and paid his debts and the two legacies first mentioned. The defendants paid to her in good faith the full amount of the notes, May 21, 1878. She married George Tilton in March, 1877, and died in January, 1890, leaving a will of which Tilton is executor. The plaintiff was appointed administrator of the estate of John H. Langley in March, 1890. Judgment was ordered for the defendants, and the plaintiff excepted.</p>

[Copy of the Will.] Be it known that I, Hiram Barker of Farmington, in the County of Strafford and State of New Hampshire, do make and publish this my last will and testament in manner following:— First — T give and bequeath to Fannie S. Cooper, daughter of Gilman Cooper of Wolfeboro, in the County of Carroll in said State, the sum of three thousand dollars.

<p>The justice of an amendment changing the form of action is a question of fact determinable at the trial term.</p>

Case, on the highway law, for injuries to the plaintiff’s horse. The plaintiff, residing in Boston, employed Marsh, a resident of Somersworth, to keep and train the horse, and Marsh was driving it when it was injured. The affidavit stating the time and place of the accident, and the injuries, and amount of damages claimed, was made and filed by Marsh “ for and in behalf of said Eugene G. Ayer,” the plaintiff.

Appeal, by the defendant, Gafney, from the decision of the commissioner on the estate of the testatrix who allowed to the plaintiff, Simpson, $1,000. At the February term, 1890, the jury returned a verdict for the plaintiff for $2,500. At the law term in June, 1890, the verdict was set aside — ante,p. 261. At the February term, 1891, the defendant, Gafney, moved that his appeal be dismissed. The motion was granted, and the plaintiff excepted.

Trespass, quare clausum, with a count in trespass de bonis. The action was brought in the police court of Somersworth, where the plaintiff had judgment, and the defendant appealed. One Philomene Bisson sued out a writ of replevin (returnable at the .September term, 1890), by virtue of which the defendant,.a deputy sheriff, took the goods, for the taking of which damages are demanded in the suit. Ephraim Bisson, the plaintiff in this suit, claimed a lien on the goods for $69.

Indictment, for soiling one half pint of spirituous liquor August 21, 1890. The defendant moved to quash the indictment on the ground that the statute under -which it was found is unconstitutional and void. The motion was denied, and the defendant excepted.

Case, for deceit, with a count in assumpsit. The action was brought in the police court of Somer-sworth, where the plaintiff' had judgment, and the defendant appealed. The defendant-demurred on the ground (1) that the counts could not be joined, and (2) that no cause of action was stated in either count. The-demurrer was overruled, and the plaintiff had leave to file a new count in assumpsit. The defendant excepted. Facts found by the court.

Case, for negligence. Verdict for the plaintiff. The declaration alleges, among other things, that the plaintiff was in the service of the defendants as a weaver; that December 12, 1889, while she was engaged in the work assigned to her on a certain loom, the shuttle, by reason of defects in the machinery known to the defendants and not known by her, flew out of the loom, struck her in the eye, and destroyed her sight.

Quo Warranto, to determine the defendant’s title to the •office of selectman of Durham. The defendant having held the ■office of tax-collector of Durham in 1888 and 1889, and being re■elected at the annual meeting in March, 1890, took the official oath, and served for the political year. For the present year no successor was elected, and T. W. Schoonmaker being appointed, was, sworn, and is collector.

Assumpsit, by the plaintiff, a deputy sheriff, for his fees for the service of writs. The action was brought in the police court of Somersworth, where the plaintiff had judgment and the defendant appealed. The writ is dated July 14, 1890. The defendant objected that the plaintiff could not show what his fees were without producing the writs or accounting for their absence. If appeared that the plaintiff returned the writs to the defendant’s attorney.

Indictment, for the murder of the defendant’s brother, Hiram F., at Rochester, February 5, 1890.

Case and assumpsit against a deputy sheriff' for neglecting to serve a writ in an action brought by the plaintiff Morgan against one, Parsons and -trustee. The writ was delivered to the defend- - ant by the plaintiff’s attorney, with directions to serve it upon the trustee, and return it to the attorney without service on Parsons. The directions were complied with, But, through inadvertence, the defendant made no return of the partial service.

<p>Leave to filo an amendment changing the form of action, when applied for after verdict rendered for the defendant, may be refused on the ground that the application is not seasonably made, and that justice does not require a new trial.</p> <p>When a covenant of a lease has been broken by the lessor, and the benefit received by the lessee from his use of the premises is more than the damage resulting from the breach of covenant, the excess (not exceeding the stipulated rent) may be recovered in indebitatus assumpsit.</p> <p>Actions oe Debt, on a lease for rent of a mill. The first is for • rent payable in 1888, and the second for rent payable in 1889. In the first, after a verdict for the defendants, the plaintiffs moved to amend the declaration by adding a general count in assumpsit for use and occupation during the time for which rent was claimed in the original declaration. The same motion was made in the second action, which has not been tried.</p>

Assumpsit, for money paid and board furnished a school-teacher-The plaintiff was a member of the school board of the defendant district. There was evidence tending to show that he was authorized'by the other members of the board (if such authority could legally be given) to examine and hire a teacher for a certain school. He examined this teacher for this school, gave her a certificate signed by himself, and hired her for the school.

Wrtt ok Entry, for land in Alton of which Eben Hayes died seized. The plaintiffs are the heirs at law of Eben, and the defendants are the heirs of his deceased widow. Eben died intestate January 10, 1890, leaving no child or the issue of any child surviving him. His widow died ten days later. She did not file a release of her right of dower and homestead in the probate office or registry of deeds.

Case, for driving the plaintiffs’ horse a greater distance than he was hired for, and for injuries to the horse caused by the defendant’s negligence. Trial by the court, and verdict for the defendant. The declaration alleged that the horse was let to one Parker. A ground of defence was, that the defendant had no interest in hiring and no control over the horse, but merely rode with Parker on his invitation.

Case, for loss suffered in consequence of injuries to the plaintiff’s wife caused by a defective highway. In an action by the wife for her injuries, she was allowed, on petition, to file a statement of her claim under Gen. Laws, c. 75, s. 9. The defendants moved to dismiss the action because the plaintiff has not filed a statement of his claim.

<p>An admission of incompetent evidence that would be cause for setting aside the verdict of a jury, is cause for setting aside the report of referees appointed under Gen. Laws, c. 231. If the evidence is material, and has not been effectually withdrawn or excluded when they decide the case, it cannot be shown by their testimony or by their general statement in a supplementary report that in their opinion and according to their recollection their decision was not affected by the error.</p>

<p>Bill in Equity, for an injunction.</p>

Bill in Equity, praying that the amount of the taxes assessed upon certain real estate devised to the plaintiff for life, upon condition that she should pay the assessments, may be determined, and that the plaintiff be permitted to pay the same, and for relief from the forfeiture of the land if the same has become forfeited by reason of her non-payment. Facts found by the court.

Bill in Equity, by the trustee of the estate of Lydia Curtis, deceased, for a construction of the will. Lydia Curtis made a will May 26, 1845, and died a widow in December, 1846, leaving one child, Caroline I). Ilodgdon, and one grandchild, Charles II. Hodgdon, the son of Caroline. The will was proved January 12, 1847.

Motion, by the plaintiffs, for leave to amend by making Cate, the defendant’s guardian, a party defendant, and that execution issue against him de bonis propriis. The action is debt on a judgment recovered in Maine by the plaintiffs against the defendant Cole in 1871. After the judgment was obtained, Cole moved to this state, and in February, 1889, was decreed a spendthrift; and Cate was appointed his guardian, and filed the inventory required by Gen. Laws, o. 186, s. 6.

Bill in Equity, for an injunction against the prosecution of a suit at law. Facts agreed. December 31,1890, Hanson, a citizen of Massachusetts, filed his voluntary petition in the court of insolvency for Middlesex county. On the same day a warrant was issued by the court against the estate of Hanson.

<p>A statute authorizing a railroad company to discontinue its road is not a delegation of legislative power.</p> <p>The charter of the Manchester & North Weare Railroad (Laws 1858, c. 2,155), authorizing that company to buy the N. H. Central road and to enjoy all the rights of the N. H. Central company, does not authorize a breach of contract that would be committed by the use of a discontinued part of the road.</p>

Petition,' for abatement of taxes assessed on the plaintiffs’ property in Concord in 1888. Facts found by referees. The plaintiffs own a dam and land under and on both sides of Merrimack river at Garvin’s falls, where the river is the western boundary of Concord and the eastern boundary of Bow. Of the plaintiffs’ land, about seven hundred acres are ill Concord ; the portion in Bow is much less.

<p>A testator is presumed to use technical words in their legal signification, unless there is something in the context indicating that he used them in a different sense.</p> <p>The words “ and to his heirs and assigns forever,” in a devise of realty, without more, have a well settled construction that the premises to which they apply are intended to he devised in fee-simple.</p> <p>A devise of real estate to a married woman “ to have and to hold . . to her sole and separate use, free from the interference or control of her said husband, and to her heirs and assigns forever,” vests, a title in fee-simple in the devisee on the death of the testator, there being nothing in the will showing that a fee was not intended.</p> <p>In such case, upon the death of the devisee, intestate, her heirs take by descent and not as purchasers, and the husband of the devisee, if he survives her, is entitled to such share as she would take in his estate if she had survived him.</p>

Case, for injuries from the defendants’ negligent use and management of a steam motor upon their road. December 3,1887, the plaintiff, while driving on the highway along which the defendants’ track was laid, was thrown from his carriage and injured, from his horses’ becoming frightened at a steam motor in use on the defendants’ road. The defendants’ charter permits them to operate their road by such motive power as may be authorized by the mayor and aldermen of Concord.

Bill in Equity, brought by the'children of Sarah A. Noyes, deceased, intestate, to determine the interest of James F. Noyes, the husband, and of Nellie E. Boyce, a grandchild, of the deceased, in certain real estate to which the deceased held the legal title at her death. Demurrer to the bill.

Case, on the statute of highways for injuries to the plaintiff’s intestate. Verdict for the plaintiff. After the cause had been on trial for a day and a half, the defendants discovered that one of the jurors was a party to an action triable by jury, and pending in the trial term in this county, wherein the counsel for the plaintiff in this suit were his counsel.

Trover, for two horses and other property. Facts agreed. December 15, 1890, one Silver owned the property, and mortgaged it to the plaintiffs to secure the payment of his promissory notes for a greater amount than the value of the property, and given for merchandise before that time sold and delivered to him by the plaintiffs. The mortgage was recorded the same day. The notes have not been paid.

Assumpsit, for moving a building. Trial by the court. In June, 1890, the plaintiff contracted with the defendant to move a building owned by lier to her lot on Spring street in Concord.

Petition for Partition. Issue as to title. The plaintiff, Mrs. Logan, had quitclaimed to Chase, the defendant’s grantor, her interest in a tract of land by a deed containing this clause, “ my interest in the same being one undivided half of the interest of the said Samuel Greeley at his decease, which interest was five undivided sixth part,” and a covenant to warrant and defend “ said premises ” against all persons claiming by, from, or under the grantor.

Foreign Attachment. The trustees, Morin and Lucier, are partners and are so described' in the writ, and are indebted as partners to the defendants. The officer returns that he attached, &c., and summoned the trustees by giving an attested copy of the writ to Morin. The trustees do not object to the service. Lanzon, a claimant, moved that the trustees be discharged.

<p>A variance between the description of a place stated in an indictment, as matter of local description, and the evidence on the trial, is fatal.</p> <p>An indictment, charging that the defendant, at N. in the county of H., with force and arms did break and enter the dwelling-house of one C. “there situate,” cannot be maintained if on the trial the evidence is that the house was situate in H. in the same county.</p> <p>In such case, after the grand jury has been dismissed the defect cannot be cured by amendment; and s. 13, c. 260, Gen. Laws, cannot be construed to authorize amendments of indictments in matters of substance, because it would conflict with art. 15 of the Bill of Bights.</p>

Assumpsit, to recover for services of tlie plaintiffs as architects in preparing plans and specifications for a proposed armory. At the trial before a jury, it appeared that the defendant corporation was organized for the purpose of building and maintaining an armory in Nashua for the use of a portion of the state militia.

<p>In a traveller’s suit for damages caused by a defective highway, a material and relevant admission, express or implied, contained in his statement filed before suit in compliance with the statutory requirement, is competent evidence for the defendants.</p> <p>If the party, whose rights may be prejudiced by conduct of- the other party tending to render the trial unfair, gives the court to understand that he is satisfied with amends made at the time by the party in fault, it is a waiver of exception on account of such conduct.</p> <p>A verdict will not be set aside because of the remark of counsel of the winning party in the closing argument, “I cannot comment on evidence that has been excluded,” if it appears that the jury did not know to what evidence the remark referred.</p>

Bill in Equity, for direction under a will. Asahel Porter, of Alstead, deceased on the 22d day of July, 1862, leaving a last will and testament dated February 10, 1862, which was duly admitted to probate. In said will are certain legacies, to take effect immediately after the death of the testator, which, with the debts and expenses of administration, have been paid.

Appeal, by the plaintiff, from a decree of the probate court. The defendant is the widow of Daniel Chase, and administratrix of his estate in Massachusetts. The plaintiff was a brother of the deceased, and is executor of the will of Sarah Chellis, who was the mother of Daniel and of the plaintiff.

<p>A merely theoretical injury to land does not furnish ground for interposition by injunction.</p> <p>The action of commissioners, appointed under “An act providing for highways to public waters in the state,” c. 97, Laws 1887, in laying out a highway, is a judgment which cannot be collaterally attacked; nor can the method of their appointment be brought in question collaterally.</p> <p>For error in the appointment of such commissioners and in their proceedings, an adequate and direct remedy, if seasonably exercised, exists in the common-law power of general superintendence for correcting errors of courts of inferior jurisdiction where the laws have not expressly provided a remedy.</p> <p>A highway laid out under such act, from a highway “ to a spike on the margin of the lake,” a public water, extends to the changeable margin of the lake, whether moved by natural causes or by the construction of a wharf.</p> <p>The damages awarded a land-owner in such a proceeding are in full compensation for all injury resulting to his estate from the construction and use of the road, including diminution of the right of building a wharf at, the point where the highway reaches the water.</p>

<p>An assignment of a mortgage given for a subsisting debt,, as collateral security for a prospective indebtedness of .the assignor, is not within G. L., c. 136, s. 3, prohibiting mortgages to secure future advances.</p>

Libel for divorce, filed February 24, 1890, charging extreme cruelty, treatment seriously injuring health, and treatment seririously endangering reason. The parties were married at Little-ton November 28, 1882. The defendant has resided in Littleton since 1855, and the plaintiff since 1879. In 1884 the defendant became interested in the subject of Christian Science, and a believer in its doctrines.

Trespass. Both actions are based upon the same wrongful acts. Facts found by a referee. The liability of the defendant has been established, and the question reserved is, Which of the plaintiffs is entitled to the damages ?

In Equity. After a decree rendered in favor of the plaintiff for a conveyance of realty and the recovery of a sum of money (ante, p. 336), a question arose between the defendants as to the portion of that sum which each of them should contribute.

Assumpsit, for logs sold and delivered. Facts found by a referee. In the winter of 1879 — 80 the plaintiff delivered logs to the defendants under a contract which required the agreed price to be paid one half May 1, one fourth September 1, and one fourth November 1, 1880. In March, 1880, the plaintiff and the defendants agreed that $1,829.50, a part of the price, should be paid by the defendants to a third person, W. S. S., in discharge of his claim for stumpage.

<p>Case, for injuries on the highway crossing at North Stratford, October 9, 1888, by reason of the defendants’ obstruction of the crossing, defective crossing, escape of steam from a locomotive, and neglect in giving the warning signals required by statute. The defendants’ track crosses the,highway west of their station at North Stratford at grade and at a right angle. The general direction of the highway is northeast and southwest, and of the defendants’ track and road-bed southeast and northwest. Parallel with the main track and seven feet southwesterly from it is a side track extending across the highway and beyond in each direction. The highway was laid out in 1855 three rods wide. A plank crossing extends across both tracks twenty-four feet in width in the centre of the highway, a space thirteen feet in width on each side not being covered with planks. A semaphore pole was set in the ground nine and eight tenths feet northerly of the north rail of the main track, and three feet easterly of the westerly line of the highway. At the time of the accident a hand-ear stood upon the ground a little southeasterly from the semaphore pole, and within two feet of it, and between the pole and the main track, left there by the defendants’ section hands, who had been repairing the crossing until with an hour or so of the time of the accident. There was a depression in the road-bed between the rails of the main track about three feet west of the westerly end of the plank crossing and ten feet east of the westerly line of the highway. The depression was caused by the way the ends of the rails are supported. Where the rails come together, two ties or sleepers are placed across the roadbed about three inches lower than the other sleepers and about two feet apart. Underneath the rails is placed a piece of plank about three feet long, three inches thick, and six to ten inches wide, resting upon and spiked to the two sleepers above mentioned. Upon this piece of plank and under the rails a thin iron plate is so placed that the ends of the rails come together at the longitudinal centre of the plate and plank, to which the rails are firmly spiked. The track is thus constructed to render it elastic, and to prevent injury to the ends of the rails. The place in the track where the ends of the rails are thus joined is called a joint. The surface of the road-bed between the two sleepers that support the ends of the rails is about three inches below the surface of the road-bed between the other sleepers. The distance from the surface of the ground to the top of the rail at the joints is usually about seven and a half inches. Repairs were made at the crossing, and at the first joint west of the plank crossing, on the day of and before the accident. The plaintiff’s evidence tended to show that the gravel was not all put back, so that the depression between the sleepers at that place at the time of the accident was greater than usual; but the defendants’ evidence was in conflict with this. The accident to the plaintiff happened October 9, 1888, about 2 o’clock p. m. The train from Portland to Montreal, due at North Stratford at 1:45 p. m., arrived about fifteen minutes late. The express train from Montreal to Portland crossed the other train at North Stratford. The plaintiff, travelling northerly in the highway, on a spring-board drawn by a horse, drove upon the crossing. When his horse had crossed over the southerly or side track, and had reached the main track, steam escaped from the pop-valve, so called, of the defendants’ locomotive attached to the train which had just arrived from Portland. The locomotive was standing a few feet east of the crossing to enable passengers to leave and enter the train. The valve through which the steam escaped was automatic, having been affixed to the dome of the engine and adjusted at the defendants’ repair-shops according to their usual practice since 1874, so that if there was a greater pressure than one hundred and thirty-five pounds of steam at any time the cap or top of the valve would rise and the steam would blow off. The defendants’ evidence tended to show that no adjustment of the valve is so safe for employes, passengers, and the public as this, and that such valves are used by all railroad companies, although the pressure with some is higher. The plaintiff introduced no evidence to contradict this. The defendants’ servants operating the train had no control over the valve, except by regulating the fire.</p> <p>The plaintiff’s horse was frightened at the escape of steam, sprang suddenly to the left, and ran across the track in a northerly direction, the wheels on one side of the spring-board passing through the depression mentioned in the road-bed, partially throwing the plaintiff from his position upon the carriage-seat. The horse and spring-board passed about three feet southwesterly of the hand-ear and semaphore post (without touching either), up the embankment toward the river. The defendants’ bridge over the Connecticut river is about three hundred feet northwest of the crossing. The plaintiff was thrown out and against another -semaphore post, at a point about one third of the distance from the crossing to the bridge, and injured. The horse ran upon the bridge a short distance, fell, and was permanently injured. The plaintiff’s evidence tended to show that he was travelling with a suitable horse and carriage, and the defendants introduced no evidence to the contrary. The defendants’ evidence tended to show that the locomotive was suitable, and the plaintiff introduced no evidence to the contrary, except that it appeared on the cross-examination of one of the defendants’ witnesses that the tendency of the times is to build heavier engines than this one, which had been in use fifteen years, and that he had read of these large engines carrying more than one hundred and thirty-five pounds’ pressure.</p> <p>After the evidence was closed, the defendants moved that a verdict be ordered for them. The motion was denied, and the defendants excepted. The remaining exceptions are stated in the opinion.</p>

Trover, for a beer faucet. Facts found by the court, and decision for the defendants. The defendant Noyes seized the faucet with other articles, by virtue of' a search-warrant issued upon a complaint made by the defendant Chamberlain, charging the plaintiff with illegally keeping for sale intoxicating liquors, etc., in the place searched. The faucet was adapted to the illegal keeping and sale of such liquors in that place.

<p>Chapter 32, Laws of 1876, deprived a married woman of her common-law capacity to convey her real estate to pay or secure her husband’s debts.</p> <p>This want of capacity cannot be supplied by estoppel.</p>

<p>Appeal, from the refusal of selectmen to abate a tax.</p>

Assumpsit, for lumber sold and delivered. Pleas, the general issue and a tender. Trial by the court, and a general finding that the sum tendered was sufficient. The plaintiffs are lumber dealers in Chicago, and the defendants are manufacturers of doors, sash, blinds, etc., in Nashua. One of the plaintiffs, being in Nashua soliciting orders, received from the defendants an order for five lots of lumber of different dimensions and prices, all amounting to about $1,000.

<p>Bill in Equity, to foreclose a mortgage. Facts found by referees.</p>

Assumpsit, on a promissory note signed by the defendant and payable to the plaintiff on demand. Plea, the general issue and a brief statement of the statute of limitations. Upon trial of the case after the decision reported 65 N. H. 173, the plaintiff testified to statements of the defendant to her, acknowledging the debt and assuring her of its payment.

<p>Three appeals from the refusal of selectmen to abate taxes.</p>

<p>Claim for the expenses of a coroner’s inquest.</p>

<p>Certain deeds construed.</p>

Petition, by the defendants for the removal of the action into the circuit court of the United States, on the ground that the plaintiffs made Van Dyke a party defendant for the purpose of preventing a removal, and for no other purpose.