Volume 67 — New Hampshire Reports

Bill in Equity, by Samuel H. Dow and John E. Robertson, stockholders in the Northern Railroad, against the Northern Railroad, the Boston & Lowell Railroad, and the directors of the Northern Railroad, seeking to enjoin the operation of the Northern Railroad by the Boston & Lowell Railroad under a contract of lease. Answers were filed, and the case was heard at the trial term before Carpenter, J., both parties introducing evidence.

Bill in Equity by the plaintiff, as executor of the will of Frederick B. Underhill, for instructions as to what portion of the estate each of the legatees is entitled to receive under the following provisions of the will: “ First, I give and bequeath unto my beloved wife, Sarah A. Underhill, the sum of twenty-five hundred dollars, as a token of my appreciation of her care and kindness to me in my sickness.

Foreign Attachment. Facts agreed. The trustee, as assignee of the defendant in insolvency, has sold the defendant’s real and personal property and holds the proceeds. A decree of distribution lias been reversed, on the ground that no claims were filed in the prescribed time. Tucker v. Beacham, 65 N. H. 119.

Facts found by the court. The plaintiffs, who reside in Boston, Mass., and are engaged in the business of cutting, storing, and selling ice, own ice-houses near the railroad, on the shore of Country pond in Newton, in which they store the ice cut by them from Country pond, which contains about one hundred acres.

Writ oe Entry, to recover a tract of land in Salem, dated March 21, 1890. The defendants, J. W. Storer and Grace T. Storer, are husband and wife, and were married in' 1864. The husband made no defence. The plaintiff claimed title to the land under a levy of executions against J. W. Storer, by which his equity of redemption from his mortgage to one Boardman was sold to the plaintiff. The officer’s deed to him was dated December 80, 1889.

Bill in Equity, for an accounting. Facts agreed. The residuary clause of the will of John PI. Langley is as follows: “As to the rest, residue, and remainder of my estate, I give and bequéath the same to my beloved wife, Mary S. Langley, to have and to hold the .same to her use and benefit forever.

Bill in Equity, asking for instructions. Hosea Clark died December 31,1869, leaving a will dated March 27,1861, and codicil thereto dated October 23, 1869, which were duly proved and allowed.

Bill in Equity, by the executors of the will of Edward Cocking, against his legatees, asking for instructions in the administration of the trust. By the will the testator makes sundry bequests, among which are bequests to his wife and sons, by the following provisions: “ I also give and bequeath unto my said wife, Alice, one half of the income of all my estate, both real and personal, not including the homestead or what is or may be otherwise disposed of.

<p>One who has contracted to do work for a fixed sum according to specifications, cannot recover additional compensation for a part of the work which became useless and had to be done over on account of the giving way of a temporary structure built according to the specifications, but inadequate.</p> <p>A stipulation by the contractor. “ that no claim or demand for extra labor or materials of any kind whatever shall be presented by him at any time during the progress of the work or after its completion,” applies to such a claim.</p>

Case. The first count alleges that “ the defendant at Farming-ton, in the county of Strafford, contracted with the plaintiff’s husband, Walter E. Marsh, now deceased, to take his photographs for a valuable consideration and did take the same.

Bill in Equity, praying that the defendant may be enjoined against erecting and maintaining a public restaurant or boardinghouse within the limits of the plaintiffs’ grounds. Facts agreed.

Bill In Equity, by residents and tax-payers in Conway, against the town, its selectmen, collector, and treasurer, for an injunction restraining the defendants from assessing, collecting, or paying over money to the representatives of the town in the legislature, for the purpose of reimbursing them for expenses incurred in defeating a bill introduced into the legislature at the January session, 1891, for a division of the town.

<p>Bill in Equity, alleging that the plaintiff bargained for 900 acres of land in Jackson at the price of $2 per acre; that the plaintiff, not having the money to pay for the same, agreed with the defendant that he should advance the purchase-money and lake deeds of the land in his own name ; that the land was conveyed to the defendant October 25, 1884, he paying the purchase-money ($1,800) ; that it was agreed between the plaintiff and the defendant that either might find a purchaser for said tracts, that the tracts should not be sold or conveyed for a less sum than $3.50 per acre by either without the consent of the other, and that the profit accruing from the sale should be equally divided between them; that the defendant, in violation of said agreement, sold and conveyed said tracts April 16, 1887, and made, or ought to have made, a profit of $1,350. The plaintiff prays for an account of the profits, and for such further relief as may be just.</p> <p>The defendant’s answer denies substantially all the plaintiff’s allegations, and avers that the whole agreement, so far as there was any, was oral and therefore void.</p> <p>The plaintiff admits that his alleged agreement with the defendant was not in writing.</p>

The first suit is a bill in equity, by John B. Moulton against Francis P. Adams, and Susan P. Adams, administratrix of the estate of Adam Brown, filed December 13, 1890.

Petition for a highway, referred to the county commissioners. The plaintiffs moved, that the report be set aside for the reason that the commissioners were not impartial. It appeared that before the trial one S., a resident of the defendant town of Loudon, saw B., one of the commissioners, and talked to him in a general way about taxation, and the embarrassed financial condition of Loudon and other towns in the state.

Assumpsit, for the expense of removing a building from a street in Concord. Facts found by the court. June 7,1890, the plaintiffs’ mayor gave the defendant a written license to move a wooden building, then situate on Spring street, through the streets to her lot on Marshall street.

Petition eor Partition. Facts agreed. In April, 1866, Davis conveyed to Ray the premises of which partition is sought, the northerly line of which was at one point only about six feet distant'from the dwelling-house thereon, “together with the right of way on the north side and- across the land now owned by said grantor and not hereby conveyed, as heretofore used by the former occupants of the premises hereby conveyed, or the right to use five feet of the land next .north of…

Tkovek, for twelve tons of hay. Facts found by a referee. In the spring of 1886 the defendant leased to the plaintiff by parol his farm in Allenstown for the term of five years from April 1, 1886.

Bill in Equity, under c. 48, Laws of 1888, alleging that the plaintiff is in possession of a tract of land described in Boscawen, claiming a freehold therein. The defendants claim that the land is a legally existing highway. The plaintiff prays that the title be determined by the court, and for an injunction. Facts found by the court.

<p>When no apportionment is made or authorized by a school-district in the distribution of the salary among the members of the board of education, it is to be divided equally, without reference to the amount of service or the manner of its performance, and the board have no authority to change it if objection be made.</p>

Assumpsit, for intoxicating liquors sold and delivered. Facts agreed. The plaintiff's are wholesale liquor dealers in Boston and New York, and the defendants are retail dealers in this state.

Bill in Equity, for an accounting. Facts found by the court. The plaintiff is a creditor of the estate of Delina Lawrence, who died November 30, 1883. In the summer of 1883, the defendant and Mrs. Lawrence were in the office of the plaintiff, who was an officer of the Granite State Mutual Aid Association. In the course of a conversation about insurance, Mrs. Lawrence said she would take out a policy if the defendant would let her have the money. He replied, “All right.

Bill in Equity, for ail injunction restraining the defendant railroad and its directors from issuing the whole or any part of certain preferred stock, which the corporation at its annual meeting, held on the thirteenth day of October, 1891, voted to issue, and from distributing the same to all the classes of stockholders in proportion to their respective holdings. Other facts are sufficiently stated in the opinion.

<p>Case, for negligence.</p>

Appeal, under the provisions of Laws of 1889, c. 93. In their petition the plaintiffs allege, in substance, that in proper proceedings under the statute their horse was adjudged to be infected with the glanders, was ordered to be killed, and was appraised by a committee of three competent and disinterested men, who found that the horse at the time of the appraisal was of no value, and that before it was infected with the glanders it was of the value of $50; and that the “…

Assumpsit, to recover $25 and interest, paid by the plaintiff to the defendants as part of the price of a horse. Facts found by the court. At an auction sale of horses by the defendants, October 12, 1886, the plaintiff bid off a horse at the price of $112.50, which was delivered to him on payment of $25, and upon the understanding that the balance of the price was to be secured by note and a mortgage upon the horse.

Trespass, qu. cl., for breaking and entering the plaintiffs’ close, and cutting and carrying away an oak tree, throwing down the plaintiffs’ fence and wall, and incumbering tbe plaintiffs’ land with brush. Facts found by tbe court. Tbe defendant bought the standing timber on a lot adjoining tbe plaintiffs’ land, and made a contract with one Hazen to cut tbe standing trees into lumber at an agreed price per thousand feet.

<p>Bill ok Interpleader, by the Peterborough Savings Bank against W. H. Barnes, administrator of the estate of Daniel Pratt, David E. Proctor, assignee in insolvency of the estate of John W. Keyes and Ellen M. Hartshorn. Facts agreed.</p> <p>The bank holds a deposit in the name of Pratt, which it offers to bring into court, or to pay, as the court may decree. In 1871 Pratt gave Keyes a deed of certain land, containing the following words after the description: “And said John W. Keyes is to have for the above consideration all my personal estate at my decease after the payment of my just debts and personal charges.” The deed was subscribed in the grantor’s presence by three credible witnesses. If it can take effect as a will, it is to be considered as duly proved and allowed. Keyes mortgaged to Pratt the same land with a condition for Pratt’s support, which condition has been duly performed. February 19, 1884, Keyes gave Hartshorn his promissory note for $394.39, payable on demand, with interest annually. June 13, 1884, he gave her a mortgage upon the above mentioned land to secure said note, and December 4, 1889, being then insolvent, he gave her an order upon the bank to pay to her, or order, $600 “ at the decease of Daniel Pratt, who has money deposited in said Peterborough Savings Bank which comes into my possession at his decease.” Hartshorn shortly afterwards notified the bank of the order and of her claim. Pratt died January 12, 1890. Keyes made an assignment in insolvency March 12, 1890, and Proctor is his assignee. Hartshorn proved her claim upon the note, but subsequently applied for leave to withdraw her proof, upon the ground that she had made a mistake in not disclosing her security, and also that she had supposed she must prove her claim, whether secured or not. Such leave was granted, after notice and hearing. There are no claims against Pratt’s estate, except the claim of Proctor, as assignee of Keyes, under the above stated, clause of the deed.</p>

Debt, upon a judgment rendered by the police court of Manchester against the defendant’s intestate, John C. Young, in his lifetime. The writ is dated November 8, 1889. Plea, nut tiel record. Facts found by the court. The plaintiff called the clerk of the police court, who produced the docket and files of that court relating to the judgment set forth in the declaration.

Case, for diverting water and diminishing the flow upon the plaintiff’s land. Facts found by the court. The plaintiff and one J. S. Winn are riparian owners, Winn’s land being above the plaintiff’s. About fifteen years ago Winn built a dam to hold back the water, thus forming a reservoir from which by an aqueduct he supplied water to his farm buildings.

Case, for injuries occasioned to a traveller by a pile of dirt in a street. Verdict for tbe plaintiff. The evidence tended to show that the defect had existed about ten hours before the accident, that the highway officers had no knowledge of it, and that the street was much travelled. The defendants moved for a nonsuit on the ground that they had no notice of the defect.

Assumpsit, upon the defendant’s promissory note, with counts for money had and received, goods sold, labor and services, and for use and occupation. The note was given for the amount due from the defendant to the testator on a former note then surrendered, for the use and occupation of the testator’s lands, and for an agreed balance of accounts. The note was made and delivered on Sunday.

Petition, signed by twenty-two legal voters and filed September 2, 1889, for the abatement of a liquor nuisance in Fitzwilliam. The solicitor has not had charge of the case, and does not appear. There has been no trial. At this term Beebe and three other petitioners declined to prosecute further, and by leave of court withdrew their names from the petition. Thereupon the defendant moved that the petition be dismissed.

<p>Bill in Equity, to foreclose a mortgage. The court found that the bill should be dismissed, and the plaintiff excepted.</p>

Trespass, for assault and false imprisonment, with a count in ease alleging that the defendants, being assessors and selectmen of Washington, wilfully and maliciously doomed the plaintiff in the sum of $2,000, and issued their warrant for the collection of the tax by them assessed thereon to the collector, who arrested the plaintiff and committed her to jail.

Petition, filed October 20, 1891, for an injunction against building a school-house in Cornish school-district on the location fixed by tbe school board as a district committee, and, on appeal, by tbe county commissioners. By vote of the district, March 10, 1691, the school board were empowered to locate and build the school-house.

<p>A deed bounding land by the bank or the thread of a brook which has two> channels refers to the main channel, in the absence of evidence showing a different intention.</p>

Petition for a new highway, which the defendants’ selectmen had refused to lay out. The defendants moved that the petition be dismissed, on the ground that the original petition should have been addressed to the commissioners of the Woodsville Fire District, within the limits of which the proposed highway is located. The motion was denied, and the defendants excepted.

Assumpsit, on a promissory note of the defendant Woodrow, •endorsed by the defendant Jameson, dated October 27, 1886, and payable to the order of E. H. Williams, four months after date. Facts found by the court. The note is an accommodation note made by Woodrow, and ■endorsed by Jameson for the benefit of Williams, at his request.

Assumpsit, for damages for breach of contract to cut and yard timber. The defence was that the contract was procured by false representations of the plaintiff, calculated and intended and having the effect to deceive the defendant, and render his examination of the situation and quantity of the timber less complete, and therefore the defendant rightfully rescinded it. Verdict for the defendant.

Bill in Equity, alleging that there is a public highway in the plaintiff town leading to a public landing on the Piscataqua river; that the defendants built a fence across the highway so as to interrupt the public travel to and from the landing; and that the proper officers of the town removed the fence, whereupon the defendants immediately replaced it. The prayer of the bill is, that the 'defendants may be restrained from maintaining and keeping a fence* across the highway.

<p>Petition, under Gen. Laws, c. 141, ss. 15, 16, alleging that the defendants for “ twenty years last past have kept up and improperly maintained a.dam across Lamprey river,” and “have within the space of three years last past rebuilt and improperly and unlawfully enlarged said dam,” thereby flowing and injuring the plaintiff’s land, and praying that “ her past, present, and prospective damages may be assessed according to law.” The defendants claimed in their answer the right to maintain their dam a foot higher than it was August 10, 1826; and they say they “intend to maintain their said dam at said height and no higher.” The plaintiff concedes the defendants’ right to maintain the dam at that height, but insists that they have kept it at a greater height, and have so improperly constructed it as to raise the water higher than it would be raised by a reasonably constructed dam of the same height. Two questions were submitted to the jury: (1) Is the dam more than one foot higher than it was August 10, 1826 ? (2) Is is constructed in an unreasonable and improper manner, so that it raises the water to a greater height than it would if properly constructed? The jury were instructed that if they should answer both or either of these questions in the affirmative, their verdict would be for the plaintiff, otherwise for the defendants. They returned a verdict for the plaintiff, assessing the damages, “ past, present, and prospective,” at $150. The defendants moved that judgment be arrested, which motion was denied, and the defendants excepted.</p> <p>The jury found that the defendants have no right to maintain such a dam as they are now maintaining. They have, therefore, so constructed their dam and maintained it, that they acquire new and additional rights of flowage, over and above those acquired by purchase. If they intend to keep the dam at its present construction, they should pay the plaintiff under the flowage act for these newly acquired rights.' This element only is necessary to give jurisdiction for the assessment of damages under the flowage act, — intentional exercise of the right of flowage by one person upon the land of another for an indefinite period. The exercise of that right may be accidental and temporary; that would give no jurisdiction under this act. But where the exercise of that right is deliberate, and with the intention of continuing it, it does not matter whether it is under a claim of right or not. It is the fact that the defendants creating the flowage enjoy rights for which the plaintiff has not been compensated, and that they intend hereafter to exercise them, that gives jurisdiction under this act.</p>

Assumpsit. The writ commanded the officer to attach the goods or estate of the defendant and to summon her. The officer attached her real estate, and returned that he summoned her “ by reading to her this writ.” The court denied a motion to dismiss for want of sufficient service, and the defendant excepted.

Case, for injuries from a defective highway. The injury complained of was a sprain of the ankle and foot. Tn the statutory statement filed by the plaintiff, the amount of damages claimed was $1,500, and in the writ $1,000.. Before the case was opened to the jury, the plaintiff was allowed to amend by increasing the ad damnum to $8,000, and the defendants excepted.

Trespass, qu. cl. Verdict for the plaintiff. The plaintiff’s close is bounded on the north by South Mill street. The defendant’s close adjoins the plaintiff’s on the south. The location of the divisional line is in dispute, the defendant claiming it is located about thirty feet south of the street, and the plaintiff that it is located some thirteen or fourteen feet further south. Thatcher Emery formerly owned both tracts.

Replevin of a horse. Facts found by the court. July 13, 1889, Onesime Hamel sold the horse in suit to William Doucet (the plaintiff’s father) for the price of $145, to be paid in one year with interest. Doucet resided in Newmarket and. carried on the business of a baker, using the horse in his business. During the year ending in July, 1890, William Doucet paid Hamel $47.90 of the price of the horse. At the end of the year he was unable to pay the balance.

Assumpsit, for the breach of a contract for building a house, in that the chimney-flues were made smaller than the stipulated size. Verdict for the plaintiff. There was evidence tending to show that the plaintiff occupied the house and knew of the breach of the contract for some two years or more before the date of his writ, without expressing to the defendants any objection to the size of the flues.

Foreign Attachment, against Milton Read, principal defendant, and Jacob T. Brown, Edwin Janvrin, and Dora S. Read, trustees. The plaintiff elected to try by jury the liability of the trustees, and the issue, chargeable or not, has been tried between the plaintiff and Dora S. Read, the jury finding her chargeable for $194.09.

Assumpsit, on the promissory note of a partnership whereof James D. P. Wingate is a member, and of Helen W. Wingate, His wife, who signed the note as surety at her husband’s request, and who alone makes defence.

Petition, under Gen. Laws, c. 75, s. 9. Tlie plaintiff’s uncontradicted evidence tended to prove that about noon, December 22, 1890, she slipped and fell on the icy and unsanded sidewalk ■of Main street in the village of Exeter, while walking thereon, and was seriously injured; that she was familiar -with the street, and had noticed ice on the walk at other places, but not at the place where she fell; and that she wore rubbers and stepped carefully.

Assumpsit, upon an order of the defendants’ selectmen, dated June 28, 1890, and directing the treasurer of the town to pay “Henry D. French or bearer $170 in full, for value of horse which they claim died of hydrophobia, and also for doctor’s fee.” The writ is dated March 30, 1891. In the spring of 1890 French’s horse died of hydrophobia caused by the bite of a mad dog. Within thirty days he presented to the selectmen proof of the nature and extent of his loss.

I! ill in Equity, to foreclose a mortgage of land situated in Merrimack county. The defendant’s' motion to dismiss the bill for want of jurisdiction was denied, and the plaintiff’s motion to transfer the suit to that county was granted, subject to the defendant’s exception.

There was a verdict for the defendant on the issue whether the testatrix was induced to make the will by the undue influence of a nephew, to whom she devised the “Sargent lot” at the expiration of a life estate given to the defendant. The testatrix held the legal title to the lot, but the defendant claimed he was its equitable owner. It was obtained in exchange for a hotel.

Motion, by a subsequent mortgagee of tbe property attached, having leave to appear, to dismiss the actions for want of service. Both defendants resided in this county. The officer who made the attachments knew that one of them resided here and the other elsewhere in the state, and he occasionally saw the latter in this county. He made no service upon either, nor any return that he was not found.

Quo Warranto. Facts found by the court. In October, 1891, the city councils of Dover adopted an ordinance which provided that the fire department of the city should consist of a board of three fire commissioners, a chief engineer and one first and one second engineer, and such enginemen and other members as the board of fire commissioners should deem necessary; the fire commissioners were to be elected by the city councils, and were authorized to make such rules and…

Bill in Equity, for a homestead. Facts agreed. February 4, 1886, the plaintiff’s husband mortgaged the premises in question to the Farmington Savings Bank to secure his promissory note for $641.78, the plaintiff releasing dower and homestead. September 19, 1887, Smith executed a second mortgage of the premises to the defendant (in which the plaintiff did not join) to secure his promissory note for $1,000.

Assumpsit, for inspecting kerosene oil belonging to the defendants. Facts found by the court. The selectmen of Somersworth, acting under Gen. Laws, c. 122, g. 30, amended by Laws 1879, o. 57, s. 23, appointed the plaintiff inspector of petroleum, and fixed his compensation. The defendants stored oil in that town, and there sold it to retail dealers. The plaintiff inspected the oil without the defendants’ request or consent, they denying his authority to do so.

Indictment, charging that the defendant did “keep for sale one pint of cider, to wit, a less quantity than ten gallons, and not to be sold by the manufacturer at the press, and not in an unfermented state.” The defendant moved that the indictment be quashed, because it does .not charge that the cider alleged to be kept for sale by him was for sale in a less quantity than ten gallons, and because no crime or offence is fully and plainly, substantially and formally, described…

Petition for a mandamus to restrain Hanson from exercising the duties of the office of inspector of petroleum in Somersworth, on the ground that he is ineligible to the office, and that the compensation fixed by the selectmen for his services is excessive and unreasonable; and to command the other defendants, who are selectmen of Somersworth, to remove him from office and appoint a suitable person- thereto, and fix a just and equitable compensation for his services.

Case, for injuries from a defective highway. The ease was tried at the October term, 1890, when the jury failed to agree. The case was tried again at this term, and a verdict returned for the plaintiff. Alphonzo Smith was a witness for the town at each trial. No evidence was introduced to show that he testified at the present trial in any respect differently from what he did on the former trial.

Bill in Equity, for an injunction restraining the defendants, Rogers, Wood, Loring & Co., from prosecuting their action against Potter, White & Bayley; also restraining the defendant-Nutter from applying the proceeds of property attached by him as deputy sheriff in satisfaction of any judgment that may be recovered in said action; also restraining the defendants Dunn, Allen, and Bullens, assignees in insolvency in Massachusetts of the estate of Potter, White & Bayley, from…

Bill in Equity, for the construction of a will and the recovery of a legacy. Facts found by the court. August 14,1879, Harriet Lyon, then of Franklin, N. H., and being there, made and executed her will as follows: 1. She gives and bequeaths to Edward Lyon one dollar. 2.

Assumpsit, on policies of insurance against fire. Facts agreed. The plaintiff, at the date of the policies, was and still is a resident of Massachusetts, and the property insured is situate in Massachusetts.- The defendant companies were organized under the laws of New Hampshire, and their principal place of business is in New Hampshire.

Indictment, for obtaining money by false pretences. The indictment charged that the respondent, at Concord, on the 12th day of January, 1892, “with force and arms, with intent to cheat and defraud one Erzemia Sawyer, did falsely and fraudulently represent to said Erzemia Sawyer that he, the said King, was a doctor of medicine, and for the sum of three dollars and fifty cents he would furnish her with medicine which he would bring the next morning, by means of which false and…

<p>One who has received what purports to he an appointment to an office which is supposed by him to be valid is an officer defacto, although his appointment contains a defect which is apparent on its face to those skilled in . the law, but not to people in general; and his title cannot be collaterally questioned.</p>

Casis, for depriving tlie plaintiffs of the use of a printing-office. Facts found by the court. In September, 1889, the parties entered into a contract by which the plaintiffs were to have the right to print a paper, of which they were the publishers, in the defendant’s printing-office. They were to have the use of the press, engine, boiler, and types, and the privilege of occupying the editorial room.

Assumpsit, for services in doing housework for, and in the care and nursing of, the defendant’s intestate, W. Gr. Perry, from May 3, 1877, to the time of his decease, November 9, 1887.

Bill in Equity, for an injunction to restrain the defendants from interfering with the plaintiff’s possession of the store occupied by him in Stark block in Manchester. March 24, 1887, John Kennard and Joseph F. Kennard leased to the plaintiff the store for the term of five years from May 1, 1887, with the privilege of renewing the same for an additional term of five years.

<p>Assumpsit, for compensation as a fireman. Facts agreed. In February, 1890, tbe plaintiff was appointed a fireman by the board of mayor and aldermen of Manchester, upon the written presentation of the board of fire engineers, as provided by the ordinances of the city, and served as such in good faith during the year next ensuing, without objection by the defendant. At the time of his appointment he was a member of the common council of the city.</p>

Writ of Entry, on a mortgage. Trial by the court. The mortgage was made April 8, 1867, by one Forbush to the plaintiff,, upon a lot of land on Union street in Peterborough Centre village, to secure a note of $600.

Bill in Equity, for an injunction restraining the defendant corporation and its directors from issuing shares of new capital stock, under authority of a vote of the stockholders, at a meeting holden May 19, 1892, to shareholders, and particularly to shareholders in classes one, two, and three; also for an injunction against carrying out the terms of a lease of the New Boston Railroad Company. The facts sufficiently appear in the opinion.

<p>'There is no error of law in the admission of evidence that has some tendency to prove the issue, but which is in fact so slight and remote that it might properly be excluded on that ground.</p>

<p>Bill in Equity, by legal voters in Hancock against the town of Hancock, the town school-district, the school board, and the building ’ committee of a school-house. Facts agreed. In 1785 James Hosley, “in consideration of the town of Hancock being-pleased to agree upon a plot to set a meeting-house on upon my land, and for divers other good causes and considerations,” granted to the town a tract of land, containing some seven acres, “for a convenient common about said meeting-house for stabling of horses on the Sabbath, to build houses on for the peopde to assemble in upon Sabbath noons, for burying-yard and training-field, for roads, &c., or for any other necessary public use, at the discretion of the town, and for no other purposes.” This gift was formally accepted by the town, and in the exercise of its discretion it has at different times voted to allow the common to be used for the additional public purposes of a public pound (1809), a school-house (1810), a hearse-house (1810), an academy building (1836), and an armory and public hall (1875), which is now used as a grange hall. In 1888 one Whitcomb, a native of the town, and familiar with the common and the way in which it then was and had been used and occupied, gave to the town, among other bequests in his will, the sum of ten thousand dollars (which was duly accepted), “one half thereof, or such part of the said one half as may be considered necessary, for the reclamation and embellishment of the common . . and the rest of said ten thousand dollars as a fund, of which the income shall be used for the increase and maintenance of said reclamation and embellishment.” At this time the common was encumbered by the school-house, which had become ruinous, unsightly, and unfit for use, and by the old academy building, claimed by one Turner, which had been occupied for many years by a poor class of tenants as a dwelling-house, and by a workshop and stable in its rear. All these buildings were in a poor and tumble-down condition, and disagreeable and offensive to the people of the town. In 1889 the town caused the school-house to be taken down and removed from the common; and at a legal meeting held on April 12,1890, the selectmen were authorized and instructed to buy the old academy, or “Turner building, so called, and the land south of it, owned by Win. F. Symonds — the same to be paid for from the Whitcomb legacy ...” and “to sell the buildings at public auction . . . within thirty days from the time of taking the deed, the same to be removed from the common within thirty days from the date of sale.”</p> <p>In pursuance of this vote, the selectmen bought the Turner building, with the adjacent old buildings and four acres of the Symonds land, for $1,500, which was paid from the Whitcomb legacy. All the buildings were sold by auction in accordance with the vote, and have been removed from the common, with the exception of the Turner building, which was purchased by the school-district with the intention to remodel it and use it for a school-house upon a different location on the common. Subsequently, and upon petition, the county commissioners located the school-house lot upon the site of the old school-house of 1810,— more than four fifths of the lot being a part of the old common, and less than one fifth a part of the addition paid for from the Whitcomb legacy; and the town has by formal vote approved the location and granted the district the use of the land.</p> <p>The plaintiffs, who are citizens and legal voters in Hancock, object to the location, and allege that the building of a schoolhouse on the common would be a gross violation on the part of the town of its obligation to Whitcomb and his representatives after accepting his legacy, and that it would injure the beauty of the common, etc. These allegations are denied by the defendants. The plaintiffs also allege, and the defendants deny, that the proceedings before the commissioners were insufficient and illegal, and without legal notice of the hearing. And one of the plaintiffs (Tuttle), who is an executor and nephew of Whitcomb, makes the additional claim, in both his official and private capacity, that if the Whitcomb legacy is allowed to be used as it has been by the defendants, it will canse a forfeiture of the entire legacy to the estate. The prayer of the bill is for a decree setting aside the proceedings of the county commissioners, and for an injunction restraining the defendants from erecting a schoolhouse on said lot or on any other part of the common. Some additional facts are sufficiently stated in the opinion.</p>

Assumpsit, for an assessment on a premium note given by the defendant for insurance upon his property. Facts found by the court. The plaintiffs are a mutual fire insurance company. The assessment was of one hundred per cent, on the balance due on the premium notes, after deducting* amounts paid on previous assessments, the amounts previously paid ranging from two per cent, to thirty-five and one half per cent., being nine per cent, on the note in suit.

<p>In an action for injuries alleged to have been caused by negligence, evidence that the defendant subsequently remedied the alleged defect is not competent as showing an admission of previous negligence.</p>

Facts agreed. Joseph Kittredge died November, 1891, leaving a widow, Katherine H. Kittredge, a daughter, Katie L. Hodgman, and two grandchildren, Ella Belle Kittredge and Harry F. Kittredge, children of a deceased son. He nominated James C. F. Hodgman, the husband of Katie L., for executor of his will. Mr. Hodgman is one of the three witnesses to the will, which is dated November 7, 1891.

Bill in Equity, by an executor against bis co-executrix, asking for a construction of the following clauses in the will of Sarah E. Griffiths: “ 5th. I give and. bequeath to the town of Durham in said state the sum of three hundred dollars in trust for the following purpose : to hold, manage, and invest the same, and expend the income in making necessary repairs upon my burial lot in said Durham. “ 6th.

Writ oe Entry, for a strip of land in Nashua, about four feet wide, extending from Pearl street northerly forty feet, and represented on the following sketch by the lines a g hi: Facts found by the court. The Godfrey lot (al o def') was conveyed by Reuben Godfrey to Gilman Scripture, October 26, 1874, and mortgaged back on the same day to secure a part of the purchase-money.

<p>The first action is a writ of entry to recover possession of a tract of land in Hinsdale. Plea, the general issue. Trial by a referee. The premises and boundaries are the same as described in an action of trespass qu. cl., brought by the plaintiff against the defendant Joanna May 16, 1885, in this court, in which the plaintiff obtained judgment at the April term, 1886. Tlio defendant pleaded the general issue. Joinder by the plaintiff. The defendant also pleaded soil and freehold, to which no replication was ever filed nor issue framed. If the judgment in that suit is conclusive, and establishes the title to the land in the plaintiff, the referee finds that the defendants did disseize the plaintiff of the demanded premises, and awards that she recover the same: otherwise he finds that the defendants did not disseize the plaintiff. The defendant James is the husband of Joanna. He has no title to the demanded premises except such as is derived from his marital relation. ^</p> <p>The second case is debt on the statute, to recover treble damages for wilfully and unlawfully throwing down the plaintiff’s fence enclosing the same premises demanded in the first action. Plea, the general issue. If the defendant is not concluded by the judgment rendered in the trespass suit, the referee finds that he is not indebted to the plaintiff; otherwise, that he is indebted in the sum of $2.50, and awards that the plaintiff recover that sum.</p>

Foreign Attachment. Facts found by the court. At the time of the service of the writ upon the trustee Gonyou, the defendant Harrington was in Gonyou’s employ, and there was due him $50 for labor, which, according to Gonyou’s usual practice, would have been payable three days later. The day of service, Harrington was collecting for Gonyou.

<p>A division of the partition fence between land owned by A and land owned by him and B as tenants in common “may be established by usage and acquiescence of the parties,” under Gen. Laws, e. 142, s. 3.</p> <p>The usage may he the performance of a parol agreement, with no claim of right except under the agreement.</p>

Bill in Equity, in aid of a suit at law, for the establishment of the respective rights of the parties to the use of the waterpower on the east side of Ammonoosuc river in Lisbon village; for a decree establishing where and how the defendant’s right shall be measured, and for an injunction restraining Mm from using water in excess of, or in a manner different from, his right so established; also for the ascertainment and apportionment among the plaintiffs of the damages…

<p>Under Gen. Laws, c. 282, s. 3, providing that “ If any person shall plead guilty to an indictment for murder, the court having cognizance of the offence shall determine the degree,” the proceeding by the court for the determination of the degree is not such a trial as the common law or the constitution requires to be had by jury.</p> <p>One who has pleaded guilty to an indictment for murder, upon which a conviction either in the first or in the second degree is warranted, has :no- constitutional' right to a trial by jury to determine the degree. The statute authorizing the determination by the court is constitutional.</p>

Petition, for the assignment of a homestead by the defendant, whose right is denied by the plaintiff. Facts agreed. In 1891 the plaintiff recovered judgment against the defendant upon a contract made in 1874, sued out an execution, and delivered it to the sheriff, who returned it with his certificate thereon of the defendant’s request to cause a homestead to be set off, and of the plaintiff’s denial of the right.

■ Claim, for medical attendance upon Frank C. Almy, while confined in the Hillsborough county jail awaiting trial for the crime of murder committed in Grafton county. Facts found by the' court.

Writ or Entry, to recover mortgaged real estate in Columbia, Facts found by a referee. June 7, 1877, the defendant made and delivered to Zilpha A. Titus his six promissory notes, amounting in the whole to $650, payable to her or bearer, one in the month of January of each year, beginning with January, 1879, and ending with January, 1884, with interest annually, and secured them by a mortgage of the same date to Mrs. Titus, covering the land described in the writ.

Case, for injuries from the alleged negligence of the defendants. The plaintiff’s evidence tended to show the following facts: November 26, 1889, the defendant corporation was building a branch railroad from its mills to the Grand Trunk Railway’s road, employing some eighty men, twenty of whom were working in a rock-cut. James Perry was superintendent of the work and of the men.

Assumpsit, to recover damages for the breach of a written contract executed December 2,1889, between the defendant Fisk and the plaintiff, whereby Fisk agreed to haul 200 cords of bobbin-wood into the mill-yard of the Groveton Wood Manufacturing Company for the sum of $1.25 per cord; and the plaintiff agreed to pay that price, one half as the wood was hauled, and the balance April 15, 1890. Facts found by a referee.

Assumpsit, by George E. Perry against the Dwelling-House Insurance Co., upon a policy of insurance. Trial by jury. Verdict for the plaintiff. The home office of the defendants was in Boston, Massachusetts. George M. Stevens & Son, insurance agents at Lancaster, New Hampshire, prepared the application and sent it to the defendants’ home office, from which they subsequently received the policy, delivered it to the plaintiff, and collected the premium.

Motion, for leave to enter an appeal from the commissioner appointed by the probate court to examine and allow claims against the estate of George Parsons, which was settled in the insolvent course. The plaintiff’s claim was disallowed by the commissioner, and he seasonably filed a petition for appeal and gave the required notice. By accident and mistake he failed to enter the appeal at the next trial term of this court.

Assumpsit, for money paid. Facts found by the court. February 4, 1891, the board of mayor and aldermen of Portsmouth authorized the mayor to employ counsel to look after the interests of the city, as affected by a bill then pending in the legislature and which afterwards became a law (Laws 1891, c. 209).

Foreign Attachment. Facts found by the court. The plaintiffs seek • to charge the trustees for rents of certain real estate. Writ served on the trustees December 3, 1890. The defendant, as executor of his deceased wife's will, claims the rents. Mrs. Davis died testate February 6, 1890, seized of the real estate from which the rents accrued. She gave to her husband all her property, and nominated him executor.

Action, by the plaintiffs, a voluntary corporation, to recover damages from the defendants for refusing to accept certain shares of stock, and to pay the par value of said shares. The agreement signed is stated in the case.

Bill in Equity, alleging in substance that Samuel Whidden died intestate in 1875, and that the plaintiff, Samuel S. Whidden, was appointed administrator de bonis non of his estate March 25, 1890; that the widow of Samuel was appointed administratrix of his estate March 16, 1875, and died December 12, 1875; that there was no administrator of Samuel’s estate between the death of the widow and the appointment of the plaintiff; that.

Bill or Interpleader, by the administrator with the will annexed of Sarah A. P. Sargent, against her husband and legatees under her will. The will was made in 1885, at which time the testatrix was domiciled with her husband in Massachusetts, and the husband expressed in writing on the back of the will consent to its provisions. In 1888 he abandoned her without cause, and procured her ejection by legal process from the house in which they had been living.

Assessment, by a jury, of Daniel S. and Abigail B. Edgerly’s ■damages for laying out a highway across their land. The plaintiffs’ petition for a highway in Northwood was referred to the county commissioners. Northwood presented a petition to them praying that a part of the expense of the highway might be borne by Deerfield; and the latter town was duly notified of this petition, and of the hearing upon the original petition.

Assumpsit, for non-acceptance of water valves. In August, 1891, the defendants agreed to buy of the plaintiffs a certain number of valves or water-gates, of the Peet pattern for an agreed sum. September 2 the plaintiffs delivered six of the valves, and September 19 six more, manufactured by the Peet company at their works in Boston.

<p>A railroad corporation is not liable to a person injured accidentally by stumbling over the foot of a baggage-master engaged in taking freight from a baggage car at the usual place on the depot platform in the ordinary way.</p>

Case, for injuries to Charles J. Edgerly, the plaintiff’s intestate and late husband, resulting in his instant death November 22, 1890, from the negligent management of one of the defendants’ cars propelled by electricity. The action is brought under Laws of 1887, c. 71. The first count in the declaration alleges that the deceased was run over and killed in consequence of the negligent management of one of the defendants’ cars by their servants.

Debt, on a judgment. Facts found by the court. At the time the action was brought, an execution had been issued on the judgment but not returned. The officer subsequently made a return of a levy in part satisfaction. This process was foreign attachment, and the trustees appear by their disclosures to be chargeable.

Petition for partition. Facts agreed. John Bnrns and his son Patrick once owned each an undivided half of the premises.

<p>Case, for personal injuries received by the plaintiff while travelling in a highway over a railroad crossing in Rochester, through the defendants’ negligence in leaving a car upon the crossing. The defendants pleaded in a brief statement, and offered to prove that the plaintiff brought a prior action in this court against the town for the same injuries; that the railroad corporation, having received notice of the action from the town, appeared and conducted the defence; and that the town prevailed, and recovered judgment against the plaintiff. Trial by jury, and verdict for the plaintiff. The prior action was tried by a jury, who returned a verdict for the town, upon which judgment was rendered. The alleged defect in the highway was the car standing on the crossing. The defence in both actions was, that the highway was not obstructed by the car, and that the plaintiff was guilty of contributory negligence. The defendants in this action offered to show by the testimony of jurors who tried the former action that the jury found the plaintiff guilty of contributory negligence. Other jurors would have testified that they found there was not sufficient notice to the town of the defect. The brief statement was rejected, and the testimony of jurors was excluded, subject to the defendants’ exceptions.</p>

<p>The guaranty fund of a savings-bank is not taxable as surplus capital in the town where the bank is located.</p>

Petitions, for abatement of taxes. Facts found by the court. A trial of nearly three days by the court, Judge Allen presiding, was begun and concluded in November, 1890. Neither party asked for further time, or for opportunity to present further evidence.

Appeal, from decrees of the probate court appointing a messenger and an assignee upon the estate of Stanley in insolvency. One reason assigned for the appeal is want of jurisdiction of the probate court, on account of non-residence of Stanley at the time of his assignment. The appellant is an attaching creditor of Stanley. Facts found by the court.

Case, for injuries to the plaintiff’s colt. Tried by the court. The parties owned adjoining pastures, between which the fence had been divided by the fence-viewers. The defendant, three or four years before the injury, built on his part a barbed-wire fence. The colt was found in the plaintiff’s pasture.

Bill in Equity. January 15, 1885, the defendants leased to the plaintiffs, as partners, under the firm name of James R. Hill & Co., a certain building in Concord for the term of six years; “ and if the said lessees shall so elect, and notify the lessors in writing of such election, three months at least before the expiration of said six years, for the further term of six years, making twelve years in all, if said election is made as aforesaid.” The lessees covenanted that…

Petition, for leave to appeal from the disallowance of the plaintiffs’ claim against the defendant’s intestate and from the acceptance of liis report by the judge of probate.

<p>A provision in an insurance policy, that if any person other than the j assured has procured the policy, he shall be deemed to be the agent of | the assured and not of the company, in any transaction relating to the insurance, is valid under Massachusetts law.</p> <p>A misrepresentation of material facts relating to the risk by the assured, in procuring a policy of insurance, renders the policy invalid in that state.</p> <p>Whether the facts that a storage-house for paints is near the insured building, that steam locomotives frequently pass within a few feet of it, that it is located back from the street in the rear of other buildings, and that the applicant is a woman, are material to the risk, is a question for the jury.</p>

<p>Assumpsit. The parties are the same in both actions. The first is founded upon a breach of a written contract by which the defendants agreed to render certain services for the plaintiffs, and for the recovery of $50 paid thereunder. Plea, the general issue, with a brief statement that the defendants were induced to make *tlie contract through the‘fraud* of the plaintiffs, by which they were relieved from performing their part of it. The plaintiffs in the second action seek to recover the reasonable value of their services, claimed to be $254.25. By agreement the actions were tried together. It appeared on the trial that before the defendants in the first suit abandoned the contract, the plaintiffs paid or advanced to them $50, which they have not returned or offered to return. For this reason the plaintiffs in the first action asked for an instruction to the jury that the brief statement, if found to be true, would constitute no defence, and that they return a verdict for them in the second. These requests were denied, and Mead & a. excepted. The jury were instructed that if they found the acceptance of the $50 was a waiver, they should return a verdict for Mead & a. The $50 was credited on the specification in the second action. There were verdicts for Welch & a. in both actions.</p>

Replevin, of household furniture. Facts agreed. February 5, 1891, the plaintiffs delivered from their place of business in Boston, to one Fred D. Story at Penacook, a lot of household furniture, under a contract in writing in which it was stipulated that he had hired and received the same of the plaintiffs, and would pay them for the rent and use thereof the sum of five dollars per month until the price, $77.38, should be paid; that the plaintiffs were to remain absolute…

Bill in Equity, by the executor, for the construction of the will of William Sheehan. The will, after legacies to several of the testator’s children and others, and making a partial provision for the widow, contains a residuary clause as follows: “ Fourth.

Replevin, for two machines, hereinafter described, situate in the Granite Mills in Northfield, and attached as both real and personal estate by the defendant, a deputy sheriff, on a writ in favor of Denny, Rice & Co. against Edward P. Parsons. Plea, the general issue, and a brief statement that the machines were the property of said Parsons, and that they had become annexed to the Granite Mills and liable to attachment as part of the realty. Facts found by the court.

<p>Logs which are brought to a town and left till the owners shall have occasion to use them, when they intend to take them to their mill in another town and make them into pulp, are not on their way to market or temporarily delayed on their way to market, within the meaning of P. S., a. 56, s. 18, so as not to be taxable in the first town, if they are there on the first day of April.</p>

Assumpsit, by the administrator of Nellie F. (Sanborn) Scribner’s estate against the executor of Isaac Sanborn’s will, upon an instrument of which the following is a copy: “ Salisbury, March 31, 1875. For value received I promise to pay Nellie F. Sanborn, or her order, ten hundred dollars, to be allowed at my decease with interest at five per cent, annually.

Replevin, for a lot of boards. Facts found by a referee. The ■defendant is a deputy sheriff. Upon a writ in favor of one Spalding against Gustus Wheeler, he attached as the property of Gustus “one hundred thousand feet of pine boards, more or less, .situated ... on land of Gustus Wheeler in Hollis in said county,” and left an attested copy of the writ and of his return thereon with the town clerk. He posted a notice of the attachment near the boards in question.

Trover, for $175 in bank bills. Facts found by the court. The defendant sold and delivered to the plaintiff certain chattels, “warranted free from any incumbrance,” for $175, which was paid in bank bills. The chattels were subject to a mortgage to McKean, who verbally authorized the defendant to make the sale.

Trover, for ice cut and carried away by the defendant, in February, 1890, from the mill-pond formed by a dam across Black brook. The plaintiff owns the land covered by the south part of the pond, subject to the defendant’s right of flowage, unless the defendant has acquired title to it by adverse possession. The facts sufficiently appear in .the opinion. A verdict was or: dered for the plaintiff, and the defendant excepted. ■

Foreign Attachment. Facts found by the court. At an auction sale July 18, 1891, Richardson, the trustée, bid off certain patent rights, machinery, and other personal property belonging to the defendants, for the sum of six hundred dollars, of which sum one hundred dollars was required to be paid at the time of the sale as a guaranty of the bid, and the balance at the time of the transfer and delivery of the property; and the defendants had thirty days within which to make…

Case, for injuries to the plaintiff’s person and carriage. Facts found by the court. September 13, 1889, the plaintiff was riding in a top four-wheeled buggy, and the defendant in an open express wagon, upon Elm street in Manchester. At a point about midway between Prospect and Harrison streets their carriages collided. The plaintiff’s carriage and harness were broken, and his person slightly injured. At the place of collision the carriageway is sixty-eight feet wide.

Bile in Equity. The plaintiff is executor of the will of Samuel Greeley, late of Hudson in this county. The testator’s will was proved April 22,1879. The plaintiff asks for construction of a certain part of the will.

Case, for injuries received by the plaintiff while in the defendants’ service as a car inspector. Verdict for the plaintiff. A freight car belonging to another railroad, and received by the •defendants from that railroad with its load of lumber, ran off the track in the defendants’ yard in Nashua. The lumber was ¡secured upon the car by stakes on each side, fastened together at the top by straps or cross-ties, that is, strips of board nailed to the tops of opposite stakes.

Case, against a town, for an injury resulting from an alleged defect in a highway. Verdict for the defendants.

Bill in Equity, to annul an assignment of certain letters patent and chattels, for breach of its covenants and conditions. The defendant demurred.

Case, for personal injuries caused by tlie defendants’ negligence. The damages demanded exceed one hundred dollars. At the March term, 1891, the case, after having been put upon the jury list, was taken from it by agreement, marked “ issues to the court,” and continued. At the next term it was tried under the agreement, but was not decided. The question was reserved whether the plaintiff is now entitled to a jury trial.

<p>Writ of Entry, for the foreclosure of a mortgage given by the defendant Hale, June 3, 1885, of certain real property, in favor of the plaintiffs and others. Damages assessed by a commissioner, who reported the following facts: The damages of the plaintiff Vail are assessed at $7,792.10, and of the plaintiff Cheney at $178.18, concerning which no objection is made. In January, 1883, Hale offered to sell to Whitney a one-fourth interest in a tract of land in Victory, Vt., for the sum of $5,000. January 22, 1883, Whitney accepted the proposition and paid Hale $5,000, of which sum $4,000 was raised at the Keene National Bank on a joint and several promissory note in the usual form, signed by Whitnej'' as principal and Hale as surety, and dated January 22, 1883. At the same time Hale gave Whitney a writing, of which the following is a copy:</p> <p>“Keene, N. H., Jan. 22, 1883.</p> <p>“Received of George E. Whitney five thousand ($5,000) dollars for a one-fourth interest in a certain tract of timber land in the town of Victory, Vermont, which I recently bought of George W. Chamberlin and I. Thompson. Said lot contains six and one half lots of land, the conditions of the said purchase of G. E. Whitney being that said Whitney is to have one fourth of the proceeds, less expenses, or his money refunded, with interest.</p> <p>S. W. Hale.”</p> <p>A corporation styled the New, England Lumber Company was organized March 22. 1883. The property of the corporation consisted of the Victory land above mentioned, with the lumber and certain machinery thereon, conveyed to the corporation by Hale. Whitney never received any deed from Hale of any share or part of the land, nor any portion of the proceeds of the property so conveyed by Hale to the company, nor any of the certificates of «took of the company.</p> <p>Hale became insolvent in June, 1885. Whitney considered the ■$4,000 note as his note, and paid the interest upon it to January :22, 1886, making the last payment April 30, 1886. He ceased to ■pay interest because Hale had disposed of the land. He supposed at the time of Hale’s failure, and stated, that he had a quarter interest in the land.</p> <p>The condition of the mortgage, so far as it related to Hale’s indebtedness to Whitney, is as follows: “And shall well and truly indemnify and save harmless the said Whitney from all loss, cost, damage, and expense to which he may be subjected by reason of his signing, at the request of said Hale and for his accommodation, a certain promissory note for four thousand dollars with said Hale, payable to the Keene National Bank; and shall well and truly pay the said Whitney the sum of sixty-five hundred dollars, now due and owing said Whitney,” etc. At the time of Hale’s failure he owed Whitney $6,500 on account of transactions independent of the $4,000 note. That note was the only note in the bank which had the names of both Whitney and Hale upon it. Whitney’s name was not on any other Halo paper in 1885. June 5, 1885, immediately after his failure, Hale informed Whitney he had secured him in the Victory land matter by the mortgage in suit, and informed him how he could secure his claim for $6,500 by attachment. Following Hale’s suggestions, Whitney collected by suit and otherwise $6,500 to $6,600.</p> <p>The Peterborough Savings Bank and the Hudson National Bank, who are defendants with Hale, brought suits against Hale after the mortgage, attached the equity, the Peterborough bank first and the Hudson bank next, and at a sale of it under executions in their favor, bought it in. Whitney’s damages are assessed at $5,553.81, as of November 5, 1891. The two banks object that his claim for that sum is not secured by the mortgage as against them.</p>

Bill in Equity, by a creditor of William R. Bullock, who has recovered judgment against him and levied on certain land as his, and now seeks to enforce an oral agreement of one Ansel Dickinson to convey the land to Bullock. Ansel Dickinson is dead, and the defendant is administratrix of his estate. The land was occupied by Bullock at the time of Ansel’s purchase, and has been occupied by him ever since. Facts found by a referee.

Complaint, under Laws 1891, o. 60, s. 8, by a police officer who had received a warrant under s. 11. The defendant moved to dismiss the complaint.

Writ oe Entry. Facts found by the court. For several years before 1885, Sarah J. Cram was the owner of the land described in the writ, which is situated in Thornton. From 1885 to her death in 1890 she was mentally incapable of doing business, but no guardian was appointed over bet. In 1886 her brother, Jonathan Gilman, represented to the selectmen of Thornton, where she was living upon her place, that she was sick and in need of assistance from the town.

Debt, for rent of a hotel building and for $1,137.50 for furniture and supplies. Plea, the general issue, with a brief statement, which the plaintiff moves to reject.

Assumpsit, by an indorsee against an indorser of a promissory note, of which one R. F. Carter was the maker.

Assumpsit. Facte found by a referee. The defendant purchased of one Hall a team and outfit for logging, viz., a pair of horses, a set of traverse sleds, a pair of harnesses, a pair of horse-blankets, two head-lialters, seven chains, and one cant-hook or cant-dog.

Libel for Divorce, for adultery. Facts found by the court. .The'parties were married in June, 1884, and lived together until January 31, 1892. In May, 1889, the defendant committed adultery with one Gray, and in February, 1892, with the plaintiff’s brother. The plaintiff had no knowledge of the first act, nor power to prove it before the second was committed; but he suspected his wife of adultery.

Case, for personal injuries. Verdict for the plaintiff. The plaintiff was employed by the defendants as a carpenter to make repairs about their mill, and occasionally he used a saw which was propelled by power transmitted to it from a large pulley upon the main shafting of the mill by means of belts, pulleys, and shafting.

Trover, for a yoke of oxen and other cattle. Plea, the general issue, with a brief statement that the defendant, a deputy sheriff, took the cattle, August 16, 1889, on a writ against Daniel Day, and that they were Day’s property. Verdict for the plaintiff. The plaintiff, who was the first witness called, testified that in May, 1889, he sold the oxen to one Sanborn for $90, and that the defendant took them from Sanborn’s possession.

Assumpsit, for repairing a portable steam engine, which was attached in this suit, September 30, 1890, for the purpose of enforcing a lien for the repairs. The lien is contested by Fellows, who bought the engine after the repairs were made, and is admitted to contest it in this action by consent of the parties. Facts agreed.

Case. The declaration contains three counts. In the first the plaintiffs aver that on the 17th clay of November, 1890, tbe defendant bargained with tbe plaiutiffs to cut from certain land in Berlin from 1,200,000 feet to 1,800,000 feet of mill logs, and deliver tbe same at the Ammonoosuc river at a price of $3 per thousand, and falsely and fraudulently warranted tbe land to be the property of the defendant, thereby inducing the plaintiffs to enter upon said land for the…

Replevin, of $400 in bank bills. Facts found by a referee. The plaintiff agreed to sell, and Mrs. George agreed to buy, the furniture in the plaintiff’s hotel, at a price to be fixed by Garland & Parker. They placed each $200 in bank bills in the hands of Parker, with the understanding and agreement that if either party should refuse to accept the appraisal of Garland & Parker, then the $200 deposited by him or her should become the property of the other.

Bill in Equity, by the administrator of Hezekiah Parsons’s estate against the executrix of George Parsons’s will, alleging that George was indebted to Hezekiah, that George’s estate was administered as insolvent, that the - plaintiff’s demand was presented to the commissioner and disallowed, that the plaintiff appealed seasonably and gave due notice of the appeal, but accidentally failed to enter it at the proper term of court, and praying for judgment for the amount due.

Case, by the administrator of Mary A. Eaton for injuries in alighting from the defendants’ train, resulting in her death. Verdict for the defendants. The deceased took passage over the defendants’ railroad at Hampton for Seabrook, a little after five o’clock on the afternoon of December 1, 1892. The evidence tended to show that the night was dark and misty.

<p>Bill in Equity, for specific performance. Facts found by the court. William H. Y. Hackett devised real estate in Gilmanton and Belmont, and the debt due him from his brother, Charles A. Hackett, to his two sons, in trust, to be used as they might judge best for the benefit of his brother and his wife and children, with authority “ to sell, allow him to occupy, or to convey a fee simple to him or his children,” as his sons, knowing the object of the testator, might from time to time judge would best promote the comfort of his brother and his wife and children; or to rent the same, and from time to time appropriate the income as they might judge would best subserve the object of the trust. The devise was made subject to the condition that Charles A. Hackett and his children pay an annuity of twenty-five dollars to Mary J. Leighton, sister of the testator, during the term of her natural life, the real estate and debt from Charles A. being charged with the payment of the annuity.</p> <p>Subsequently the testator executed the following codicil: As it is now most likely that my nephew, Joseph Allen Hackett, will remain at home and upon the old Hackett farm, I make this codicil to my will for the purpose of so modifying the trust upon which I have given my real estate in Gilmanton or Belmont, that after the death of my brother Charles and his wife all said real estate shall be held in trust for the benefit of said J. A. Hackett, and if my sons or the survivor of them shall deem it best so to do, I do hereby authorize them to convey all my interest in said real estate, subject to the life estate of my said brother Charles and his wife, to said J. A. Hackett in fee simple forever.” Subsequently Robert C. Pierce was named as an additional trustee. The testator died August 9, 1878; William H. Hackett, one of the trustees, died September 24, 1891; Joseph A. Hackett, the testator’s nephew, died in 1889; and the wife and other children of Charles A. Hackett have all deceased, leaving no lineal descendants.</p> <p>September 24, 1892, the defendants, Frank W. Hackett and Pierce, surviving trustees, entered into a written agreement under seal with the plaintiff, Eliza A. Hackett, sister of the testator and of Charles A., andwith her children, and with Mrs. Leighton and Charles A. Hackett, “ for the purpose of applying the farm at Belmont to the support and comfort of Charles A. Hackett for the remainder of his natural life,” whereby (1) the plaintiff, Eliza A., agreed to provide and furnish for her brother a comfortable home for his life, and her children agreed to furnish the same after the death of their mother; (2) Charles A. Hackett agreed to accept the transfer hereinafter stated as a full and complete discharge of the obligation of whatever kind upon the heirs of the testator to contribute to his support, and agreed to unite in giving a joint title in the premises to Eliza A. and her heirs; (3) the plaintiff agreed, upon the transfer of the title to her from the trustees, to pay them the sum of $ 107.78, expended by them on account of the title to the farm and the adjustment of the settlement ; (4) Mrs. Leighton agreed to release the trustees from all obligation on account of her annuity charged on the farm, and to join in the deed in release thereof; (5) the trustees agreed to convey the farm to the plaintiff and her heirs in consideration of one dollar and of the agreement to support Charles A. Hackett. After the agreement was signed, the trustees appended over their signatures the following: “ The deed to be a quitclaim of the interest of the estate of W. H. Y. Hackett.”</p> <p>Upon the execution of the agreement, the plaintiff entered into the possession and occupation of the farm, and has expended between two and three hundred dollars in its management and in taxes and repairs, and has assumed the care and support of Charles A. Hackett. A deed of release and quitclaim of the interest of the estate of W. H. Y. Hackett in the farm was prepared and submitted to the trustees to be executed by them, containing a release by Mary J. Leighton of any claim against the trustees or upon the land by reason of her annuity charged thereon, and executed by her October 19, 1892. The defendants declined to execute the deed, and the plaintiff brought this bill to enforce specific performance of the agreement.</p> <p>1. The agreement is to convey the farm. The quitclaim mentioned in the addendum is of the interest of the estate of W. H. Y. Hackett, not of the interest held by the trustees. The codicil revoked the power in the trustees to convey, should they think it best, to Charles. A. Hackett, or his children, in fee simple. This power once gone, never returned. In its place is conferred a power to convey in fee to J. A. Hackett. Each of these powers is altogether discretionary with the testator’s trustees. He intended to provide against the future. Circumstances might render it just and proper that the testator’s heirs enjoy the estate, after it had fulfilled its purpose as a home for his brother and nephew.</p> <p>It seems clear the testator meant that his nephew should enjoy exactly the same estate in the land that Charles A. and wife were to have, viz., a life estate. If, however, the trustees should think best at any time to terminate the trust created in behalf of J. A. Hackett, they were empowered to do so by conveying to him a title in fee simple. The death of the son before his father did not operate to enlarge the estate theretofore enjoyed by Charles A. Hackett. Hence when the trustees entered into an agreement to convey the “ farm,” or to quitclaim to the plaintiff “ the estate of W. H. Y. Hackett ” in the same, they were inadvertently exceeding their powers. Such an agreement equity will not-compel them to carry out.</p> <p>2. But the plaintiff says the deed is to be simply a quitclaim; and if the trustees cannot convey the farm, they can at least be made to quitclaim their interest as trustees. It is a sufficient reply to say that Mrs. Leighton’s signature has been obtained to no such conveyance as that now suggested by the plaintiff. The bill was brought to compel the trustees to execute a deed purporting to carry the fee to the plaintiff.</p> <p>3. If the contract is one the defendants can call on the court specifically to enforce, it does'not follow that the plaintiff is entitled to the same remedy. Pckstein v. Downing, 64 N. H. 248. One important requisite to sustain such a bill is, that the mutual enforcement of the contract in .specie be practicable. Adams Eq. 80. The bill emphasizes the fact that Charles A. Hackett is aged, infirm, and threatened with blindness. In order to use the farm for his benefit, however, it is by no means necessary that the trustees convey the fee to the plaintiff, or that Mrs. Leighton surrender her right to the annuity. The plaintiff and her children agree to “provide for the said- Charles and furnish him a comfortable home for his life.”</p> <p>To provide for an aged and nearly blind man is to take personal care of him. To furnish a comfortable home is to undertake to do that for which there is no standard of measurement. To ascertain from day to day whether the care is duly administered and the comforts of home tendered, is a procedure that a court of equity may well decline to enter upon. The contract resembles the engagement passed upon in Marble Co. v. Ripley, 10 Wall. 339, 358, where the duties were “ continuous, involving skill, personal labor, and cultivated judgment,” and Mr. Justice Strong said, — “ The court cannot superintend the execution of such a decree. It is quite impracticable.” See, also, Port Clinton Railroad Co. v. Railroad, 13 Ohio St. 544; Ilcerd v. Beavers, 106 Ind. 483, 486 ; G-rimmer v. Carlton, 93 Cal. 189; Wright v. Bucket, 22 G-rat. 370, 377.</p>

Trespass, to a piece of sandy beach in Seabrook, bounded southerly by the state line, easterly by the Atlantic ocean, northerly by Hampton river, and westerly by marshes bordering on the Blackwater river. Facts found by the court. The following is a synopsis of the plaintiffs’ title: 1. The charter of the Council of Plymouth, dated November 8, 1620. For an abridgment of this charter, see Prov. Papers of N. H., rol. 1, p. 4. 2.

Bill in Equity, for an injunction against the use of the defendants’ corporate name, and for general relief. The parties are Portsmouth brewers.

Case, for personal injuries to Hannah E. Emery, deceased since bringing the action, which is prosecuted by her husband and administrator. Verdict for the plaintiff.

Assumpsit. Facts agreed. The action is brought to recover |100 subscribed by the defendant to the following agreement: “ We the undersigned herewith subscribe the amount set against our respective names to the capital stock of the Northwood Shoe Company.

Bill in Equity, for tbe specific performance of a contract for tbe sale to tlie plaintiff, by tbe defendant Annie G. Scott, of twenty shares of the capital stock of the Portsmouth Brewing Company. Facts found by the court. The capital stock of the company consists of eighty shares, of the par value of five hundred dollars each.

Bill in Equity, by the holder of a second mortgage to redeem from the holder of the first mortgage in possession. Facts found by the court. The defendant’s mortgage was originally made to secure a note for $547. After its execution the defendant’s intestate loaned the mortgagor $100 more, surrendered the note for $547 and took a new note for $647. The condition of the mortgage was changed to correspond with the new note, and it was then recorded.

<p>The doctrine of Weston v. Manchester, 62 N. H. 574, and Peavey v. Greenfield, 64 N. H. 284, that the excess only of the par value of national bank stock over the amount of the owner’s interest-bearing indebtedness is liable to taxation, is applicable to a non-resident owner of bank shares.</p> <p>The assessment of a tax being in the nature of a judgment, and reviewable only upon a petition for abatement, no relief can be had unless the petition is filed within nine months after notice of the tax, the time fixed by Pub. Sts., c. 59, s. 11.</p>

Appeal, from a decree of the judge of probate appointing the defendant a co-trustee with the plaintiffs under the will of Hiram Barker. The will and codicils contained provisions for the payment of sundry legacies, and also the following: “ Eighth.

<p>Case, for killing the plaintiff’s horse. The court ordered a nonsuit, and the plaintiff excepted.</p>

<p>• Assumpsit may be maintained against a lessee holding under a sealed lease, the covenants of which have been broken, to recover for any beneficial use in excess of the damage resulting from a breach of the covenants.</p> <p>A former suit under a lease for rent, and a judgment rendered for the defendant upon the ground that the form of action was misconceived, is no bar to an action in assumpsit for use and occupation for the same period.</p>

<p>The price of corporate stock at public sales which are sufficiently numerous to attract the attention of investors competent to investigate the question of its value, is ordinarily the best evidence of its market value.</p> <p>In ascertaining the value of railroad stock, taken by eminent domain, it is error to admit evidence of corporate mismanagement to show that its market value ought to have been greater, or to allow other elements of value to be added to the market price.</p> <p>Evidence that New Hampshire railroad stock, owned by residents of Massachusetts, is taxable there, is not admissible to show that it has a higher market value in this state.</p> <p>The notoriety of many facts is so great, that the administration of justice requires the exclusion of evidence based on an assumption of their nonexistence.</p>

Petition, for leave to file the statement required by s. 7, c. 7 6, Pub. Sts., in case of a claim for injury under the highway law. Facts found by the court. May 6, 1892, the highway surveyor was repairing the highway by removing therefrom a large rock by blasting, of which the plaintiff, a traveller, had no notice.

<p>A provision in an insurance policy that any broker procuring it shall be deemed the agent of the insured and not of the insurers is not necessarily conclusive upon the question whether such broker was in fact the agent of the insurers to receive the premium.</p> <p>The insurers’ waiver of a forfeiture of a policy for non-payment of a premium may he inferred from conduct inconsistent with a purpose to insist thereon.</p>

<p>A declaration, under Gen. Laws, c. 139, s. 33, alleging that the defendant unlawfully sold spirituous liquor to one who was made intoxicated thereby, and while so intoxicated killed the plaintiff’s wife, who was dependent on the plaintiff for her support, “ whereby the plaintiff permanently lost the society of his said wife and the comforts of a home, and has Suffered, and always will suffer, for the society of his said wife and the comforts of a home and from mental anguish, and in consequence whereof the plaintiff sustained great loss and damage,” sets up an actionable loss or damage.</p>

Assumpsit, on insurance policies upon the plaintiffs’ stock of goods in their store in New York city. Facts agreed. The plaintiffs applied to Abraham Barker, an insurance broker in New York city, for the insurance, and he sent the application to Morrill & Danforth, of Concord, N. H. Morrill of this firm was the secretary of the defendant corporations, Danforth was the treasurer, and the firm were their agents.

Petition, for the location of a union station at Manchester. All the parties desire the erection of such a station, which, it is conceded, the public good requires; but they are unable to agree upon a location. The defendants claim that the court has no jurisdiction.

Case, for negligently causing the death of Ebenezer Bancroft while in the defendants’ employ. Verdict for the plaintiff.

Assumpsit, for an assessment on a premium note given for insurance in the plaintiff company. Verdict for the plaintiffs.

<p>Assumpsit, by each of the several plaintiffs for materials furnished and labor performed for the defendant in erecting his house, and to secure a lien thereon. All the liens were secured by attachment made within the prescribed ninety days, but not simultaneously. The property is not sufficient to pay in full all the claims. The first attaching plaintiffs insist that their claims must be paid in full; the others that the property be applied proportionately on all the claims.</p> <p>“ If a person shall, by himself or others, perform labor or furnish materials to the amount of fifteen dollars or more for erecting, altering, or repairing a house or other buildings or appurtenances, by virtue of a contract with the owner thereof, he shall have a lien thereon and on any right of the owner to the lot of land on which the house, building, or appurtenances stand.” P. S., c. 141, s. 10. By section 16 of the same chapter, the lien created by section 10 continues for ninety days.after the services are performed or the materials or supplies are furnished; and by section 17, any such lien may be secured by attachment of the property upon which it exists at any time while the hen continues, the writ and return thereon distinctly expressing that purpose, “ and such attachment shall have precedence of all other attachments made after such lien accrued, unless founded on a prior lien.”</p> <p>Three questions arise: (1) Shall the proceeds of the property be distributed among the lienors in the order in which the liens accrued? (2) in the order of the attachments? or (3), the property being inadequate to satisfy them all, should it be distributed pro rata among all the attaching iienors ?</p> <p>The first question must be answered in the negative. By section 17, the attachment to secure a lien takes precedence of all other attachments made .after such lien accrued, except those founded on prior liens. That is, if the lien of a painter is secured by attachment, it does not take precedence of the lien of the material-man who furnished the lumber, or of the carpenter who did the work. It would only precede liens subsequently arising.</p> <p>The second question must be answered in the negative, and for the same reason. By section 17, a priority of the lien gives a prior right, unless (as in this case) where the property is insufficient to pay all liens equity may intervene and decree a pro rata distribution, upon the general principle that equity will relieve against the consequences which arise from an application of strict rules of law. Perhaps a solution of the question may be aided by analyzing the nature of a lien and the relationship of lienors inter sese.</p> <p>What is a mechanic’s or material-man’s lien? It is strictly a property interest in the building into which he puts his labor or liis material, and it becomes a vested property interest the instant the labor is done or the materials delivered, by force of the statute. That is, the statute steps in every moment while the labor is being performed or the material is being delivered, and impresses upon it, as it is incorporated into the building, the personal property right of the one who furnishes it, and continues that right for ninety days after the last work is done or the last item of material is furnished. Weaver v. ¡Sells, 10 Kan. 609, 619. If, then, one should furnish the foundation for a building, and another should subsequently do the mason work, and following him another should furnish the lumber, another the sash, blinds, and hardware, another should take these materials and erect a building, and another subsequently should do the painting, there would be created by the statute a succession of property interests in the completed structure; but if the materials were furnished and the work was done by carpenters, masons, and painters, practically simultaneously, but as it was required from day to day, then there would be no strict priority of liens, and each would stand upon the same basis with all the rest. It cannot be that a mason, who erects a chimney daring the same week that a carpenter is putting on the roof and a material-man is delivering sheathing, would have any prior rights, or vice versa. There can be no priority unless the materials are furnished and the labor performed at distinctly successive times. We do not understand that the lien accrues at the date when the last work is done or the last thing is furnished: it is only from that time that the limitation commences to run within which the lien may be secured by attachment. The lien is created at the instant the material is furnished or the work done.</p> <p>In this ease it does not appear when the liens were created, whether practically simultaneously, or successively; but it is fair to assume that they were-created, as they usually are, by the putting in of the foundations of the house, afterwards by the furnishing of the lumber and other supplies, and by the work of the carpenters and painters subsequently employed to do the job; and if the property were sufficient to pay all claims, it would seein that under section 17 of the statute just quoted the attachments securing the first lien would take precedence of all others. But SO' long as the property is admittedly insufficient, is it not equitable that its proceeds, which in fact represent the labor which every mechanic has expended upon the materials furnished, together with the materials themselves, should be proportionally divided among them? Would it not be inequitable that the material-man, who furnished the lumber which represents really but a fraction of the completed house, should be permitted to satisfy his claim in full, and perhaps leave nothing to the mechanic or painter or mason whose labor it is that gives to the material sufficient value to pay the prior claim? This rule has been adopted in some states. In Anshutz v. W Glelland, 5 Watts 487, 489, the court say,— “Where there are several mechanics’ liens filed against the same house, a procedure and sale of the house by the sheriff upon any one of them divests the lien of all, and the purchaser will hold it discharged of all incumbrances. The proceeds of such sale will be divided pro rata among such lien creditors.” And in Moxley v. Shepard, 3 Cal. 64, the court say, — “ The appellants had a judgment against the building, of the same day with that of the respondents, for materials furnished for its construction. • Our statute has placed liens for materials and liens for labor on the same footing. The court erred in refusing to distribute the proceeds in conformity with the statute.” This case is not very fully reported, but it would seem that the opinion of the court was, that so long as the material-man and laborer stood upon the same footing (as they do in our state), the proceeds of the sale should be distributed in the same manner, that is, pro rata. So, too, in White v. School District, 42 Conn. 541, the court say, — “If all the claimants had taken steps required by law to fix their liens upon the. premises, of course all would be equally entitled, and there would be an apportionment among* them of the sum due pro rata." In Mall v. Wills, 3 La. Ann. 504, the court take the position that where the property was insufficient to pay all liens, the proceeds should be distributed pro rata, upon the principle that among creditors equality is equity; and they say, — “As to the rights of laborer and furnishers of material inter sese, they must share the fund pro rata. They do not rank in the order of time, and any such creditor for labor or materials has a right to participate in the fund until distributed.” This seems entirely equitable, and the circumstances of this case are such as to warrant the application of this equitable principle. If, however, the language of section 17 is controlling* in all cases, the lien of the plaintiff Fipphen, who put in the foundation, precedes that of Richards who furnished the lumber, and that of Richards precedes that of Brown who finished the house. _ In that view, Brown’s prior attachment does not divest Richards of his earlier property interest. The plaintiff’s argument proceeds upon the hypothesis that the statute relating to attachments in ordinary cases must control. This ignores wholly the statute creating mechanics’ liens, which controls in actions to' enforce the payment of such liens.</p>

Case, for causing the death of the intestate by negligently •driving a car over him. Verdict for the plaintiff. The plaintiff’s •evidence tended to show that the injury was caused by a car driven by the defendants over their railway in the compact part •of Nashua faster than at the rate of five miles an hour.

Bill in Equity, for the specific performance of a contract and the execution of a trust. Facts found by the court.

Case, for damages and costs recovered and expenses incurred in an action against the plaintiffs, in favor of a person injured by a defect in a highway caused by the defendants. Facts agreed. The defendants, Warren and Beede, took a contract to cut, saw, and deliver on the cars all the timber standing on a certain lot, at $5.25 a thousand.

<p>A town or city cannot, under the statute, exempt from taxation property not employed in manufactures.</p>

<p>Trespass, qu. cl. Facts found, by a referee. September 27, 1859, Joshua N. Newton conveyed to Jonah F. Bent a spring of water in Winchester, with the right of constructing and maintaining an aqueduct in his land to the land and dwelling-house of Bent, a distance of about sixty rods. Bent constructed the aqueduct, and obtained thereby a supply of water for household purposes until the destruction of his house by fire in 1865. The water was shut off soon after the fire, and no use has since been made of the aqueduct. Bent mortgaged the lot on which his dwelling stood to one Dickinson in 1874. The mortgage w'as foreclosed in September, 1879. In October, 1879, Dickinson conveyed the Bent place to the plaintiff. No mention was made of the spring in the mortgage or deed.</p> <p>Bent’s administrator, by deed dated April 3, 1889, quitclaimed to the defendants all the right and interest Bent had to the spring at the time of his decease. Later, in 1889, the alleged trespass to the spring was committed.</p> <p>The spring passed to Dickinson, and from Dickinson to the plaintiff, as appurtenant to the premises conveyed, without being specially mentioned. Hollenbeck v. McDonald, 112 Mass. 247, 250; Oliver v. Dickinson, 1.00 Mass. 114; Pettingill v. Porter, 8 Allen 1; Kent v. Waite, 10 Pick. 138; Barker v. Olark, 4 N. H. 380. There was no abandonment of the spring by non-user. There was no act to indicate an abandonment. The several conveyances, the last one in 1879, conveyed the spring. The pipes and spring were not disturbed until 1889, when the plaintiff at once forbade the trespass.</p> <p>No use was made of the spring after 1865; consequently, no use of it was being made at the date of the mortgage from Bent to Dickinson, nor liad any been made for nine years prior to that time. The water was shut off at the spring soon after the fire, and for twenty-four years and until 1889 no water ran in the pipe, and no attempt was made to use it. The fact that the dwelling-house has not been rebuilt shows that the water from the spring, sixty rods distant, was not essential to the use and enjoyment of the property conveyed by the mortgage.</p> <p>The spring not being mentioned in the mortgage or deed, and the water not being in use, nor its use necessary to the full enjoyment of the premises at the time of the grants, the right to use the water would not pass as appurtenant to the premises. See remarks of Bell, J., in Dunldee v. Railroad, 24 N. H. 489, 495;— to the same effect is Winnipiseogee, etc., Company v. Perley, 46 N. H. 83, 102; — see, also, PMIbriclc v. Ewing, 97 Mass. 133-135; Decorah Woolen Mill v. Greer, 49 Iowa 490; Manning v. Smith, 6 Conn. 289; Mdams v. Conover, 22 Hun 424.</p> <p>When Dickinson took his mortgage, and when he conveyed to the plaintiff, there was no occasion to use the water on the premises because they had been” devoted to another use ; and the fact whether there was or was not a right to so use the water formed no part of the consideration in either transaction, and was no inducement to either of the parties to enter therein. Dickinson never attempted to avail himself of the right, and did not attempt to sell it to the plaintiff; the plaintiff did not bargain for the right, nor did he buy the land for any purpose for which the water would be necessary or useful, as is shown by his continuing for ten years to use it for agricultural purposes, as it had been used for the preceding fourteen years. He cannot after the lapse of twenty years, by changing his purpose, revive an abandoned right, or make that appurtenant which for that time has not been connected with the property or considered as appurtenant. Gayetty v. Bethune, 14-Mass. 49, 56.</p> <p>Whether the water was shut out of the pipe by Bent or by the then owner of the defendants’ premises does not appear. If by Bent, it was an act showing an intention to- abandon; if by the latter, it was an adverse act which has been acquiesced in for over twenty years, and constitutes an abandonment. Non-user for a less period than twenty years, accompanied by acts showing an intention to abandon a right, is sufficient to constitute abandonment. Upon this branch of the case we claim an abandonment, both on the ground of twenty years’ non-user, and on the ground that the plugging of the pipe, and the different use to which, during all that time, Bent, Dickinson, and the plaintiff put the premises, are acts indicating an intention to abandon any right which may have formerly existed.</p>

Assumpsit, on a contract for the building of a church. The plaintiffs’ specification contained seven items, of which one was fpr a balance of $1,761.15 due on the contract. The plea was the general issue, with a brief statement alleging part payment, and specifying twenty-five items of recoupment, amounting to $1,174. The court referred the action, and the plaintiffs excepted.

<p>Bills in Equity, praying in substance for a determination of the rights of the parties as mortgagees in certain parcels of real estate. Facts found by a referee.</p> <p>In the first case the following facts appear: Abigail Brown executed three mortgages of her farm in Colebrook to the defendant Williams, — one dated December 1, 1883, for $800; one dated March 18, 1884, for $500; and one dated December 18, 1884, for $1,700. ‘The last mortgage was intended by Mrs. Brown and Williams to be in satisfaction and extinguishment of the prior mortgages; but they were left in Williams’s possession without being formally cancelled or discharged. January 29, 1886, Mrs. Brown conveyed all her interest in the farm to Williams, and it was then understood by them that all her notes were thereby paid. March 28, 1886, Williams executed a deed of the farm to John A. Hammond, and took a mortgage back from him for $2,500. The purpose of this transaction was to enable Williams-to raise money on the mortgage as collateral security.</p> <p>About the middle of December, 1888, Williams transferred the $800 mortgage to the defendant Parkhurst. Soon after Mrs. Brown conveyed the farm to Williams, Parkhurst knew that she had conveyed it to him, and that she supposed all the mortgage debts were thereby extinguished. Parkhurst relied upon Williams’s promise to pay the note, but supposed the farm would be holden for the payment if Williams failed to satisfy the debt.</p> <p>September 1, 1885, Williams pledged Mrs. Brown’s note and mortgage of December 18, 1884, for $1,700, to the National Bank of Newbury, one of the defendants, as security for loans made to him. Some time in 1886 he assigned to Quimby the Hammond note and mortgage of March 28, 1886; and March 4, 1887, he assigned Mrs. Brown’s note and mortgage for $500 to the defendant Lamb. July 28, 1888, he mortgaged the Brown farm to the Bradford Savings Bank, one of the defendants, as part security for the sum of $12,000. All the mortgages are now held by the several parties, for valuable considerations received by Williams, and without the knowledge in fact, at the times they took the mortgages, of the state of the title. The deeds were all duly recorded, and all the notes were indorsed by Williams.</p> <p>The facts in the second case are as follows: The defendant Norris gave Williams a mortgage on his block in Colebrook, dated November 24, 1884, to secure the payment of three notes of $500 each. Williams pledged these notes to the plaintiff Gould, who now holds them, as collateral security, giving him a certified copy of the mortgage, and retaining the original. Subsequently he pledged three apparently genuine notes of $500 each, in all respects like those delivered to Gould, and the original mortgage, to the Bradford Savings Bank, one of the defendants.</p> <p>In the third case the following facts are found: May 2, 1885, Williams conveyed to the defendant Hammond a farm called “ the stock farm,” and took a mortgage back of the same date for $1,000. Soon after, Williams pledged the mortgage and note to the defendant Blodgett to indemnify him for signing a note as surety for Williams, which note Blodgett has paid. March 25, 1886, Hammond reconveyed the farm to Williams, but the deed was not recorded. The purpose of the conveyances between Williams and Hammond was to enable the former to raise money on the latter’s note and mortgage, but not to divest Williams of his title. Hammond never entered into possession of the land, and left the deeds with Williams, who caused the first deed and the mortgage to be recorded without the knowledge of Hammond. Hammond lcnew of and consented to the conveyance to him, and voluntarily executed the mortgage and note, but his conveyance of the farm to Williams was made with the understanding- that Williams should cancel the note and mortgage, which he failed to do. February 4, 1888, Williams executed a deed of the farm to the defendant Sarah A. Tibbetts. At that time she let him have $1,000; but she never took possession of the land, and Williams has paid her the interest on the money advanced, and has paid the taxes on the land. July 28, 1888, Williams also executed a mortgage of the farm to the Bradford Savings Bank, one of the defendants, as part security for a loan to him of $12,000.</p> <p>There are mechanics’ liens on the property in favor of the defendants Woodrow, Rolfe, and H. Hammond, for lumber and materials furnished and labor performed on a building erected by Williams while he was in possession, and soon after his deed to Mrs. Tibbetts.</p>

The first case is Assumpsit, for money paid. Facts found by a referee. In 1881, Woodward agreed orally with Plolmes to pay for and take deeds to himself of such timber lands as Holmes should bargain for, furnish Holmes the money necessary to carry ■ on the business of manufacturing the timber, receive the avails of the lumber when sold, and, when reimbursed for the purchase-money, advancements, and interest, convey the lands to Holmes.

Bill in Equity, for an injunction against hauling logs on to a mill-pond, part of the Stark Mill property. Facts found by a referee. A temporary injunction was issued January 16, 1886. A bond was given by the plaintiffs to the defendants in compliance with an order made under the 36th equity rule (56 N. H. 611), conditioned that the plaintiffs would pay all damages occasioned to the defendants by the injunction in case the suit should be determined against the plaintiffs.

Writ oe Entry. The defendants’ demurrer to the declaration in the common form was overruled, subject to their exception.

Appeal, from a decree of the judge of probate adjudging Warren F. Putnam, “ said to have been a resident ” in this county, an insolvent debtor, under P. S., c. 201, s. 42.

Appeal, from a decree of the judge of probate. Pacts found by the court. Page & Dowe, insolvent debtors, had assigned certain contracts to Van Wart & Co. as collateral security for a debt. Van Wart & Co. assigned tbe contracts to one Knapp, who put them into the hands of the defendant, an attorney at law, for collection.

Assumpsit, on the defendant’s promissory note, dated June 14, 1888, payable to his order and endorsed by him in blank. Facts found by the court. The defendant made the note at the request of Haley, the plaintiffs’ treasurer, who at the same time gave the defendant his own note for the same amount. Haley was the plaintiffs’ treasurer until he died in 1892 insolvent. There is no entry on the plaintiffs’ books showing a discount of the note, or that they paid money for it.

<p>An expression of fear by a testator that a trust fund over which he possessed the power of testamentary disposition would pass by his will, and his act in causing the legatees named therein to execute and deliver to him an agreement providing that the fund should not pass, and acknowledging that such was his intent, are not competent evidence upon the question of the testator’s intention as expressed in a subsequent will containing substantially the same provisions as the first one. A testator’s power to dispose of a remainder expectant upon his life estate is executed by his devise of property described in his will as “all the rest, residue, and remainder of my estate and property of every description,” if there is nothing in the will tending to show a different intention.</p>

Bill in Equity, by Joseph R. Curtis and others, constituting .an unincorporated association at Portsmouth called Storer Post No. 1, Department of New Hampshire, Grand Army of the Republic, against the city of Portsmouth, for the specific performance of a contract. Facts agreed.

<p>The interest of one of two joint lessees in the demised premises is not surrendered to the lessor by operation of law, by a sale of it to the co-lessee accompanied with a parol agreement between the lessor and the latter ■ that the lessor will thereafter look to the co-lessee for the performance of the covenants of the lease.</p>

<p>An action of debt may be maintained on a recognizance conditioned against the violation of the statute regulating the sale of spirituous liquor, to determine the forfeiture of such condition.</p>

Assumpsit, to recover for the support of the child of the plaintiff and William P. Dolloff, deceased. Facts agreed. The plaintiff procured a divorce, with $600 alimony and the custody of the child, over whom she has been appointed guardian. The child has since lived with the plaintiff and been supported by her, and is still under seven years of age. The defendant is administrator of the estate of William P. Dolloff, and has not yet settled his account.

Apfeals, from refusals of tlie selectmen of Gilford to abate parts of taxes assessed by them upon the plaintiffs’ real estate, in 1890,1891, and 1892. Facts found by the court. The plaintiffs were incorporated, June 28, 1831.

<p>A decision of the federal court dismissing a petition for the removal of a case will not be reviewed in this court.</p> <p>Upon an appeal from the probate of a will, the executor has the right to open and close, though the only question for actual trial is, whether the testator was unduly influenced in making the will.</p> <p>Upon that question a witness, found to be qualified, may be allowed to testify that the testator was a person not easily influenced by others.</p> <p>The omission of an agent, who caused a bill in equity to be brought against third parties, to disprove upon the trial thereof an allegation in the answer, may be evidence of its truth, and may be used to contradict him as a witness in another suit between other parties.</p> <p>There is no presumption of law that the confidential agent of a testator, who assisted him in making the will in which he is the sole legatee, unduly influenced the testator.</p>

Trespass, qu. el. Facts agreed. The plaintiff is lessee of a strip of land in Hopltinton, tjvo hundred and fifty feet in width, the centre line of which is coincident witli the centre line of a stream passing through it.

Case, for injuries received by the plaintiff, in being run over and having his foot crushed by a car of the defendants. Trial by jury. The plaintiff, subject to exception, introduced evidence of a conversation between himself and one Wheeler, who was the conductor of the train-by which the injury was caused- This conversation was held about two months after the accident, and tended to show negligence in respect to the starting of the train.

Trover, for manure. Facts found by the court. March 31, 1883, the defendant leased his farm for the term of three years to the plaintiff, who covenanted to carry on the place in a “husband-like manner,” and to consume and convert into manure, to be used or left upon tlie premises, all liay and fodder raised thereon. The plaintiff occupied tlie farm and performed ail liis covenants contained in the lease, without any new or further contract, until May 30, 1892.

Bill ok Interpleader. Facts agreed. Tlie Odd Fellows’ Mutual Relief Association of tlie Connecticut River Valley lias paid to the plaintiff, for the benefit of the party entitled to it, $975, upon a certificate of membership issued to tlie plaintiff’s intestate, Frederick A. Black, February 8, 1877, by which the association promised to pay $1,000, upon Black’s decease, to tlie person or persons designated by him in his application for membership or in his last legal…

Trover, for an organ attached by the defendant, an officer, upon a writ against one Brown. Facts found by the court. At the time of the attachment the plaintiff had a vendor’s lien upon the organ. The defendant made an oral demand upon the plaintiff for an account of the amount due on the organ, which she promised to furnish upon her return home; but she failed to do so.

Indictment, for selling a package of oleomargarine not of a pink color, in violation of P. S., c. 127, ss. 19, 20. Verdict, guilty. The defendant is an agent at Manchester of Swift & Co., an Illinois corporation. The corporation manufacture oleomargarine in that state, and put it up in packages, some of which they send to the defendant in Manchester; who sells it in the original packages. The prosecution is for making a sale of that character.

Trespass, gu. el., with a count in case. Facts found by the court. The plaintiffs are a corporation, chartered June 26, 1877 (Laws 1877, e. 133).

<p>The city councils of a city, when met in convention to declare the election of a mayor, under Pub. Sts., c. 47, ss. 2, 3, may compel the production of the ballots cast for mayor, may examine and recount them, and may declare the result of tlie election in accordance with the facts disclosed by the examination.</p> <p>The examination and counting of the ballots may be entrusted to a committee of the city councils.</p>

<p>On the issue whether a party expressly assented to certain terms, the court may properly refuse to charge the jury as to whether it was his duty to assent, or as to the effect that might have been produced by his silence.</p> <p>If a tenant of property, at an auction sale of it, assents to the auctioneer’s statement, made immediately before offering the property, that his tenancy is to terminate in four weeks thereafter, he is estopped from insisting on a right to three months’ written notice to quit from the purchaser at the sale.</p> <p>Under Pub. Sts., c. 246, s. 20, the question of the plaintiff’s damages may be submitted to the jury at the same time as the question of his right to recover.</p> <p>On an action brought Under Bub. Sts., c. 246, for the recovery of land from a tenant, exemplary damages are recoverable if the defendant files a plea of title, or appeals.</p>

Assumpsit, far money deposited in the defendant bank by Sale Page, the plaintiff’s intestate, and dividends and interest tliereon. Trial by jury. Verdict for the plaintiff.

<p>A bond with one sufficient surety is a compliance with the statute requiring that the appellant from a decree of the judge of probate “ shall give bond with sufficient sureties to prosecute his appeal.”</p>

Case. The declaration alleged, in substance, that the defendants erected and maintained, in an unsuitable condition, a lock-up for the keeping and detention of prisoners; that the plaintiff was arrested, and for twenty-four hours was confined in the lock-up, and by reason of its unsuitable condition was injured. The defendant’s demurrer was sustained, and the plaintiff excepted.

Debt, on the statute for double damages, for injuries committed, by the defendant’s dogs. Verdict for the plaintiff. July 11,1892, while the plaintiff was riding in a sulky drawn by a three-year-old colt, in the highway leading by the defendant’s house, the colt became frightened and unmanageable, and ran away, whereby he and the colt were injured and his sulky and harness damaged.

Trespass. Facts found by the court. The defeixdants’ premises adjoin those of the plaintiff on the east; and the contention relates to the location of the division line. William Green, the original owner of both lots of land, iix 1850 conveyed a portion of the land now owned by the plaintiff to Joshua T. Kendall. Soon after, Kendall built a house upon his land.

Bill in Equity, for specific performance. Facts agreed. The plaintiff made a yerbal agreement with the intestate to loan him $150, for which the latter was to give him a note secured by a mortgage of certain land. In pursuance of the agreement he delivered the money to the intestate. The note and mortgage were prepared, but their execution was prevented by the sickness of the intestate, who died in a few days, leaving an estate not sufficient for the payment of his debts.

The first case-is Trespass, qu. cl., for breaking and entering the plaintiff’s close in Woodstock; and the second CASE is a Bill in Equity, for an injunction to restrain the defendant from continuing the trespasses complained of in the first case, and from constructing a roadway over the plaintiff’s close. Trial by the court.

Trespass, for assault and battery, being the same case reported in 59 N. H. 462. The defendant moved to enter the action “ Neither party.” Facts found by the court. April 8, 1882, the plaintiff assigned the suit to Jacob Benton by a sealed writing, which specifies that it is made as part security for certain indebtedness, and authorizes and empowers Benton to settle the suit for such sum as he shall think reasonable, and apply the proceeds in payment of the indebtedness.

Petition, for the laying out of a highway in the town of Woodstock, alleging that the selectmen, have neglected and re-fused to lay out the same. On the return of the report of the ■commissioners laying out the highway, Fisher, a land-owner, moved that their report be rejected and the petition dismissed, because, ■as he claimed, the selectmen had not neglected or refused to lay out the highway prayed for, and the court therefore had no jurisdiction.

Appeal, from a decree of the judge of probate. Facts found by the court. Howland made an assignment for the benefit of his creditors September 14, 1892. He filed a list of his creditors October 22, stating their residences and the amount of each one’s claim, but not the nature and consideration of the claim, nor whether it was secured.

Case, for the loss of the life of the plaintiff’s wife occasioned by a defective highway. Trial by jury; verdict for the defend- • ants. While the plaintiff and his wife were driving upon a highway in Lebanon, on April 21, 1891, the horse suddenly turned to one side and went against a railing separating the highway from Mascoma liver, broke it, and with the carriage and its occupants went into the river, and Mrs. Emerson was drowned.

Replevin, for a colt. Facts found by a referee. The plaintiff owned a vicious horse called the Blaine mare, whose characteristics were known to the defendant. The defendant owned a colt, which was nine miles distant, in the keeping of Haines, his agent, and which the plaintiff had never seen.

Petition, by the plaintiff, one of the building committee appointed by the county convention of 1889 to construct the court-house at. Woodsville, for the allowance and payment of 12,995.20 .expended in the erection of the court-house. Facts found by the court. The county commissioners denied the petition, and the plaintiff’s claim was submitted to the court for decision, under Pub. Sts., e. 27, s. 13.

Bills in Equity, tlie one in the first suit for the specific performance of a contract to convey real estate, and the other for a conveyance of a portion of the real estate referred to in the contract. Facts found by a referee. Darius is the father of the plaintiff and Leroy.

Foreign Attachment. Trial by the court. The principal defendants are a corporation. The trustees subscribed for, and by an agreement with the other subscribers in writing contracted to take, each, five hundred shares of the defendants’ capital stock, of the par value of one dollar, and to pay therefor one dollar a share.

Libel, for divorce. An order of notice by publication, “the last publication to be at least one week prior to ” the return day, was issued and complied with. The last day of publication was -ten days before the return day. The defendant did not appear. If the notice was sufficient, a divorce is to be granted.

<p>The plaintiff’s motion to recommit the report of the referee for further findings was denied, subject to exception.</p>

Assumpsit. Facts agreed. The plaintiff is a member of the defendant corporation, and as such he is entitled to certain “sick benefits.” Among other things, he agreed that he would not institute legal proceedings for benefits until he had exhausted all remedies therefor provided by the order.

Bill in Equity, for specific performance. Facts found by the court. The defendant Lord is the administrator of the estate of Charles L. Perkins, who died in 1886. In 1877, Perkins, being the owner of a large quantity of timber in Ossipee, offered to give the plaintiff land sufficient for the purposes, of a saw-mill, and to assist him with labor and materials, if he would build a mill on his land.

Bill of Interpleader. Facts agreed. The plaintiffs are a beneficiary association, chartered under the laws of Massachusetts. In January, 1880, a certificate in the association was issued to Asa Swett, upon his application, by which the association promised to pay out of its benefit fund, to the wife and children of Swett, upon his death, a sum not exceeding five thousand dollars, in accordance with the laws of the association.

Motion, to set aside a verdict for unwarranted remarks of the plaintiff’s counsel in argument, to which the defendant seasonably objected. The remarks were retracted, and the jury were requested by counsel and instructed by the court not to consider them. The presiding judge found, as matter of fact, that the jury were not influenced by the remarks, and denied the motion. The defendant excepted.

Motion, for rehearing of ease reported, ante, p. 462. Plaintiffs moved for judgment on the ground that the defendants were not entitled to a jury trial.

<p>Writ oe Entry, upon a mortgage. Trial by the court and finding for the plaintiff. Exceptions by the defendant.</p>