Volume 68 — New Hampshire Reports

Trover, for a kiln of brick, attached by the defendant as deputy sheriff upon writs against one Morrell on November 26,1892, and subsequently sold upon executions issued in the actions. Trial by jury. Verdict for the plaintiff! At the close of the evidence the defendant moved that a verdict be directed for him. The motion was denied, and the defendant excepted.

Case, for personal injuries. Trial by jury. Verdict for tbe defendants. The plaintiff moved to set aside the verdict, and also that a new trial be granted, because, upon the request of the jury for further instructions, they were brought into court and so instructed in the absence of the plaintiff and his counsel. The motions were denied, and the plaintiff excepted.

Assumpsit, for money had and received. Facts agreed. The defendants insured the plaintiff’s life for the benefit of his wife, and the action was brought to recover the sums paid as premiums on the policy. The plaintiff signed an application and a medical examination,' each of which' stated as his occupation, “laborer,” and that he was not connected in any way with the ale, wine, or liquor business.

Bill in Equity, to compel a transfer to the plaintiff of ten shares of the capital stock of the Portsmouth Brewing Company standing in the name of Mark A. Scott, and alleged to have been held by him in trust for George Scott. The plaintiff’ is administratrix of the estate of George Scott, and the defendant is executrix of the will of Mark A. Scott. Facts found by the court.

<p>Under a grant by an academy to a parish, of a meeting-house, upon condition that the grantees permit the grantors to make use of the house for “ public exhibitions and other purposes,” the grantors are not entitled to-its use for daily morning prayers or other ordinary school exercises.</p>

<p>The question of the competency or sufficiency of the evidence before the probate court is not material in this court upon appeal.</p>

<p>Bile in Equity, filed August 27, 1890, for discovery and an accounting. The plaintiff is a stockholder in the Swamseot Machine Company, a corporation created July 9, 1846, to carry on a manufacturing business at Newmarket in this county. At the hearing another stockholder, Tebbetts, moved for leave to join in the bill as a plaintiff. Receivers of the property of the corporation, appointed September 21, 1893, have prosecuted the suit since May 7, 1894, with the leave of the court. Facts found by a referee.</p> <p>From 1857 to 1878 the defendant, Paul, was a director and the president and agent of the corporation. There were five directors ; and, during the same time, Paul, two of the other directors, and two other persons were partners, doing business in Boston, Massachusetts, under the firm name of George K. Paul & Co., — the three directors owning the greater part of the capital of the firm. The corporation consigned some of its manufactures to the firm, who sold them, and accounted, and paid for them at prices which the corporation received for like goods from other customers. The firm enjoyed no advantage over others in this respect. Their entire sales amounted to. over $3,000,000, more than half of which were Of the corporation’s goods. They generally made a profit in selling these goods, but the amount of their net profits upon them cannot now be ascertained. They made losses otherwise, became insolvent in 1878, and then sold their stock and business to -the corporation at a fair valuation.</p> <p>In 1872 the corporation received in payment of a debt, an equity of redemption of certain real estate in Boston, worth $12,-000 and mortgaged for $7,000. The title was taken in the name of Paul. In September of that year, a minority of the stockholders, owning less than half of the capital stock, represented in writing to the directors that, in their opinion, the corporation had not paid Paul adequate compensation for his services as president and agent, and “ ought to recognize in a substantial way the fact that mainly by his individual talents and faithfulness ” it had paid regular dividends and increased its property exceptionally; and they requested the directors to release to him the interest of the corporation in the above-mentioned equity of redemption. This the directors subsequently did, Paul not acting with Ms associates in the matter. Paul accepted the release, has paid the mortgage debt, and now holds the property.</p> <p>The stock now owned by the plaintiff, Wiggin, formerly belonged to her father, George 0. Hilton, who died in 1866. By his will, he bequeathed the stock to his widow for life, and to the plaintiff’ after her decease. The wddow died in 1872. Hilton and his widow knew that Paul was interested in the firm of George K. Paul & Co., and as early as 1887 Wiggin learned of it and of the release by the corporation to Paul of its interest in the Boston real estate. Tebbetts had no knowledge of these facts until after this suit was begun ; but the person of whom he purchased his stock in 1867 knew of Paul’s membership in the firm.</p> <p>If, upon these facts, the bill cannot be maintained, it is to be dismissed.</p>

Petition for partition. Pacts found by the court. The petition was filed at the October term, 1892, when the defendants were defaulted and a decree for partition was made, and a committee appointed to make the division. One of the defendants, John W. Locke, while in the occupation of the common estate, built upon it a portion of the buildings at his own expense, by which the property was enhanced in value.

<p>The mayor.and aldermen of a city have no authority to call a meeting of the inhabitants for the purpose of voting upon the adoption of the ballot law.</p> <p>‘ Petition of citizens and legal voters of Portsmouth against the mayor and aldermen for a mandamus requiring them to issue their warrant, under P. S., c. 48, s. 17, for a general meeting of the' inhabitants of the city for the purpose of voting on the question of adopting, under P. 8., c. 33, s. 1, the provisions of c. 33 for city elections. Pacts found by the court.</p> <p>March 29,1894, a petition, signed by one hundred legal voters of the city, praying the defendants to issue such warrant, was presented to the defendants, who asked the opinion of the city solicitor upon the legality of the meeting which they were requested to call. His opinion has not been given, and nothing more has been done by the defendants. This petition was filed April 19, 1894. The annual city election occurs on the first Tuesday of August. June 28, 1892, the city refused to adopt ■c. 33 by a vote of yeas 529, nays 844.</p>

Trover. Pacts found by the court. The plaintiff gave the defendant a set of diamond ear-drops upon a certain condition which the defendant did not perform. Subsequently, and upon the plaintiff’s demand, the defendant returned to her the gold settings of the drops with comparatively valueless stones substituted for the diamonds.

Bill op Interpleader. Facts found by tbe court. January 5, 1891, Woodbury L. Melcber and Edmund Tetley became sureties for John J. Lane upon bis note to tbe Laconia Savings Bank. Lane secured them by a mortgage upon personal property which be agreed to have insured, and tbe policies made payable to tbe bank as security for tbe payment of tbe note.

Petition, against the county commissioners and the town of Eaton, for a writ of mandamus to compel the commissioners to order the town to repair a highway. Facts found by the court. The highway was laid out by the selectmen in 1850, and forms a part of a highway leading easterly into the state of Maine and westerly across the town into the town of Madison. In March, 1891, the defendant town voted to discontinue the highway in question.

Trespass, quare clausum. Trial before a referee, who assessed the plaintiff’s damages at $289.50, and established the boundary-line between the parties. The defendants moved to set aside the report. The court ordered judgment on the report, and the defendants excepted. Facts found by the court.

<p>. An appeal lies from the decree of a judge of probate accepting or rejecting the report of a referee upon the claim of an administrator against the estate.</p> <p>Probate Appeal. The plaintiff, administrator of his deceased wife’s estate, settled as insolvent, had a claim against the estate which was contested by the defendants, her heirs at law. The parties not agreeing that the judge of probate should decide the question, he referred it to a referee, who reported in favor of the plaintiff. The judge denied "the defendants’ motion to recommit, and accepted the report. The defendants appealed. The plaintiff’s motion to dismiss the appeal was granted pro forma, subject to the defendants’ exception.</p>

Assumpsit. Trial by the court. On a Sunday in July, 1893, one Forest sold and delivered a horse to the defendant for §115, of which $15 was paid, and the balance was to be paid to the plaintiff, who had a mortgage on the horse for $100. Forest warranted the horse sound. It was unsound. On the same day, before making the trade, the defendant told the plaintiff he was about to make it, and was going after the horse, to which the plaintiff replied that he had no objection.

Libel for Divorce. The cause alleged is the wife’s adultery ■with one S., on or about April 1, 1890. The defendant filed an answer denying the charge and averring that the question of her adultery before October 28, 1891, had been adjudicated in her favor. On that date she filed a petition against her husband for separate maintenance, alleging non-support. At the April term, 1892, the cause was tried.

Appeal, by George W. Ela, administrator of the estate of Joseph Ela, from the decree of the probate court upon settlement of his second account. The reasons assigned are errors in charging him with certain specified sums and disallowing certain specified credits.

Assumpsit, for spirituous liquors sold and delivered. Facts found by the court. The specification contained charges amounting to §577, and credits of §434. The action was brought to recover the balance of §143. The plaintiffs introduced evidence as to sales on August 21, September 8, and September 20, 1888, the charges aggregating §221. They offered no evidence as to the other items, except the fact that they had sold the defendant liquors prior to August 21, 1888.

Bill in Equity, praying for the removal of an obstruction from a passway. Pacts agreed.

Bill in Equity, praying for the set-off of a homestead. Facts agreed. January 26, 1892, the plaintiff owned the premises in which he claims a homestead, subject to two mortgages to Hazelton, in which he released his homestead right. On that day he made an assignment in insolvency.

Petition, by twenty-one persons alleged to be legal voters in Concord, for the abatement of a liquor nuisance in that city. Two of the petitioners were not such voters. The petition was amended by substituting two voters for them, subject to the defendants’ exception.

Libel, filed March 13, 1894, for the forfeiture of spirituous liquors. Pacts agreed. The liquors were on March 2, 1894, owned and unlawfully kept for sale in the building and place named in the libel, by one James M. Collins, who appears as claimant.

Case, for personal injuries. Verdict for the plaintiff. While the plaintiff was attempting to pass over a railroad crossing in Manchester, with his horse and wagon, his horse became frightened by the lowering of the bars or gates which were used by the defendants to prevent teams from crossing the tracks, when locomotives wrere passing over them. Being unable to manage his horse, he was thrown upon the ground and injured.

Petition, for winding up the defendants’ affairs. There was a decree appointing a receiver and authorizing him to settle up the business of the company. A commissioner was also appointed to pass upon the claims presented. Various questions of law having arisen upon the hearings before the commissioner, he asks the advice of the court.

<p>Information, in the nature of a quo warranto, filed by the attorney-general, alleging the relator’s election to the office of mayor of Nashua and the defendant’s usurpation of the office. The question, which of the candidates received a plurality of' votes, was contested, and the city councils in convention heard the parties and determined it in favor of the defendant. The-relator claimed that certain ballots counted by the convention for the defendant were not properly marked as votes for him, and that, if they were rejected, the relator was elected.</p>

Petitions, by both parties, filed in 1891 and 1892, for the assessment of damages under the flowage act (P. S., c. 142, ns. 12-19). Trial by jury and verdict for the plaintiff. The plaintiff'moved that fifty per cent be added to the amount of the verdict. The defendants objected on the ground that the provision of the statute requiring the addition is (1) unconstitutional, and (2) has been repealed.

Appear, from the refusal of the assessors of Manchester to abate a tax. Facts found by the court. February 1, 1892, the plaintiffs leased to the New Hampshire Trust Company the “ Stark Block” and the land on which it stood, in Manchester, for a term of fifty years, reserving an annual rental of $8,000.

A payment on Sunday discharges the debt. Assumpsit, for labor. Facts found by the court. The plaintiff labored for the defendant two months and one day, ending October 31, 1892. On Sunday, October 6, when only $7.25 was due, the defendant paid the plaintiff $20.50 on account of his labor. If this payment stands, there is nothing due the plaintiff; but if it does not, there is $19.92 due him.

<p>When a vacancy occurs in the office oí mayor, the aldermen of cities are empowered to elect one oí their number chairman, who thereupon has the powers and may perform the duties of mayor, until one is elected and qualified.</p> <p>Information, in tlie ¿ature of a quo warranto, filed by the attorney-general at the relation of George W. Kief and six other citizens of Manchester, to determine the right of the defendant to the office of mayor of that city. Facts found by the court.</p> <p>May 10, 1894, Edgar J. Knowlton, then being mayor, resigned the office and his resignation was accepted. On the same day the board of aldermen elected Byron Worthen, one of their number, chairman of the board, and immediately thereafter (Worthen presiding) elected the defendant (who is a citizen and voter, and was in 1889 and 1890 mayor of the city) mayor to fill the vacancy caused by Knowlton’s resignation.</p>

<p>The reasonable use of one’s property is not an actionable nuisance, although injurious to another.</p> <p>Case, for maintaining a private nuisance. Facts found by a referee. The defendants owned and operated a shoddy mill, situated eighty-six feet from the plaintiff’s dwelling-house, and equipped with machinery indispensable to the business and similar to that used in other shoddy mills. When the wind was in the right direction, lint, dust, and smoke, the latter of a sickening odor, were driven toward the plaintiff’s house, obliging her to close the doors and windows on that side. On two or three occasions she had to absent herself from the house for several weeks, because chronic diseases from which she suffered were made worse by the objectionable materials and odors. The defendants have not intended to injure her, and have tried to construct their plant so that she would not be annoyed. The use they made of their premises was found to be reasonable. The plaintiff’s damages were assessed at $300. Both parties moved for judgment on the report.</p>

<p>An action oí covenant by a lessor against an assignee of the term will not operate to release a lessee who promised to stand behind the lessor in such suit, and at whose request it was brought, nor does it limit the lessor to an action on the collateral promise.</p> <p>Debt and Covenant, by lessor against lessee, for rent reserved in a lease under seal. Facts found by a referee. The lease was for a term of five years from April 1, 1873, and contained no stipulation against an assignment or under-letting. The defendant assigned the lease to John W. Starkey, August 8, 1874, by a writing under seal, signed by both him and Starkey, in which the latter agreed to pay the rent, perform the defendant’s covenants, and indemnify the defendant against them. Starkey’s agent subsequently offered to pay the rent to the plaintiff', who declined to receive it, stating that he recognized no one but the defendant as party to the lease. The defendant then requested the plaintiff to receive rent from Starkey’s agent, saying that he would continue liable on the lease. The plaintiff thereupon received rents from the agent, and gave receipts therefor in which he acknowledged receipt of the money for the defendant. All subsequent payments of rent were made by the agent, except a payment of $101 made by the defendant April 17, 1877. After the expiration of the term, the plaintiff' frequently requested the defendant to pay the balance due. The defendant did not deny his liability, but urged the plaintiff to collect it of the heirs of Starkey, and applied to Starkey’s widow to pay it to the plaintiff. In 1884, at the request of the defendant, the plaintiff' brought an action of covenant against the devisees under Starkey’s will for the balance due, the defendant promising to stand behind the plaintiff in the suit. In that action (reported in 63 N. H. 607) there was judgment for the defendants.</p> <p>The referee found for the plaintiff, who moved for judgment. The defendant contended that judgment should be entered for him, because (1) the action of covenant by the plaiutiff against Starkey’s devisees was an election to treat the defendant’s assignee as the lessee, and operated to release the defendant on his covenants in the lease; and (2) the plaintiff’s only remedy was upon the defendant’s collateral promise to stand behind him in the suit against the Starkey heirs.</p>

Assumpsit, for fees paid to fence-viewers. Facts found by a referee. The fence-viewers, on due application, divided the line fence between the parties, and awarded that each party should pay one half of their fees taxed at $6, which were paid accordingly. The defendant unreasonably neglected to build her part of the fence, whereupon the plaintiff demanded of her repayment to him of $3, being one half the sum that he had paid to the fence-viewers under their award.

Assumpsit, for the sum paid by the plaintiffs to Rowe for damage done to sheep by dogs. Pacts found by the court. In October, 1892, the defendant’s dog and another dog killed in Rowe’s pasture four sheep and badly injured six others. Rowe owned three of the sheep that were killed and three of those that were injured; the others lie pastured for hire. Upon proceedings under the statute, the town paid Rowe thirty dollars for the entire damage.

Trov-er, for a stock of jewelers’ goods. Facts found by the court. August 26, 1886, the plaintiff sold and delivered to A. 0. Putnam a quantity of jewelers’ goods, upon condition that they were to remain the plaintiff’s property until Putnam paid his note of that date for $900. The contract was evidenced by a writing which was not sworn to or recorded.

<p>The delivery of a deed is not effectual unless the grantor parts with all control over it.</p> <p>A writing which does not identify the parties, the premises, and the price agreed upon in a sale of land without resort to parol evidence, is not a sufficient memorandum under the statute of frauds.</p> <p>Writ oe Entry. Facts found by the court. January 12, 1893, the defendant executed a warranty deed to the plaintiff of the demanded premises and acknowledged it before John Mc-Crillis, with whom it was deposited under a verbal agreement between the parties that he should retain it in his possession until April 1,1893, and on or after that day should deliver it to the plaintiff upon his paying to McCrillis for the defendant $1,189. The price of the land was $2,200, which was the consideration named in the deed, and the difference between $1,189 and $2,200 was represented by a mortgage on the premises which the plaintiff was to pay or assume. Insurance of the buildings was to be transferred to the plaintiff' when the deed was delivered to him, and thereafter the defendant was to have the rooms she then occupied so long as the plaintiff owned the place, at a rental of $10 a month. The plaintiff claimed that at the time of the agreement he paid the defendant $11 on account of the purchase money. The defendant - claimed that the $11 was a loan to her.</p> <p>The defendant understood that she could rescind the agreement and recall the deed at any time before April 1; the plaintiff understood she could not. Before April 1, the defendant requested McCrillis to return the deed, and upon his refusal obtained an injunction forbidding him to deliver it to the plaintiff. April 1, the plaintiff tendered McCrillis $1,189, and demanded the deed. It was not delivered, and remains in the possession of McCrillis.</p>

Case, for personal injuries, alleged to have been occasioned by a defective highway. Facts agreed.

<p>A writing not under seal and containing no covenants will not operate as a release of the expectant interest of an heir at law.</p>

<p>Case. The declaration alleged, in substance, that the defendants, Van Dyke and McFarland, in June, 1884, negligently repaired and in part rebuilt a dam owned by them on the Connecticut river; that Van Dyke sold Ms interest to the Connecticut River Lumber Company in 1885, but has since been the president and general manager of the company, and as such has had control, management, and supervision of the dam, which has ever since been negligently kept and maintained by the defendants; that in May, 1888, the defendant company negligently ran a large number of logs over the dam, Van Dyke directing and controlling the business; that by the negligence of the company and Van Dyke, a large jam of logs formed upon and above the dam ; that in consequence of the jam and of the negligent construction and maintenance of the dam, it gave way and allowed the water and logs to escape, causing a washout of highways in the plaintiff town, compelling the town to repair certain highways and to build new ones, the latter necessarily being less favorably located and more expensively maintained than those they replaced.</p> <p>The defendants demurred, because “ there are no allegations of any joint act causing damage, nor of any separate act causing damage, but the allegation is of separate acts at different times participated in by part of the defendants, which caused the damage in conjunction with other separate acts committed by other defendants ”; and because “ the plaintiffs have no legal interest in the highways sufficient to authorize them to maintain a suit.” The demurrer was overruled, and the defendants excepted.-</p> <p>Trial by jury. Verdict for Van Dyke and McFarland and against the Connecticut River Lumber Company.</p> <p>The plaintiffs claimed, and introduced evidence tending to prove, that Van Dyke owned the dam for several years prior to February 17, 1886, when he conveyed it to the company; that McFarland, since June, 1883, had a right to a part of the water; that Van Dyke and McFarland-, at different times and independently of each other, repaired and rebuilt portions of the dam, and this work was negligently done; that, the 'company, after the purchase from Van Dyke, were engaged in running logs down the river; that in May, 1888, the company negligently permitted a jam of logs to form, .which brought an additional strain on the dam, and knowingly maintained the dam in this unsafe condition; that the dam gave way on account of its insufficiency to withstand the strain; that the washout which resulted was caused by the combined and concurrent negligence of all the defendants, and in the absence of such negligence by any one of them would not have happened. The company excepted to evidence of the separate negligence of Van Dyke and of McFarland in repairing and rebuilding the dam, also to evidence of their own negligence in the management of logs, not participated in by all the defendants, and to an instruction to the jury, that, if the plaintiffs’ claims were found to be sustained by the evidence, they were entitled to a verdict against all the defendants.</p> <p>On the cross-examination of Waite, a witness for the defendants, the court ruled that the plaintiffs’ counsel might read such parts of a previous statement in writing made by the witness as he desired to question him upon, and such parts only, and the defendants excepted. Counsel thereupon read the entire statement, portions of which were not inconsistent with the testimony of the witness on the stand, and questioned him upon parts of it, to which the defendants excepted. In his argument to the jury, the plaintiffs’ counsel was permitted to argue that the previous statement of Waite was true, and his testimony on the stand false, to which the defendants excepted.</p> <p>During the argument for the plaintiffs, one of the defendants’ counsel stepped to the bench and desired an exception noted to what had just been said. The attention of the presiding justice had been diverted from the argument, so that he had not notieed the language complained of. On his request that the reporter’s notes of the language be obtained, the defendants’ counsel, after inquiry, reported that no minute of the language had been taken, and presented a writing as follows: “ The Connecticut River Lumber Company desire an exception to that part of the argument referring to the education of George Van Dyke and the company about destroying dams, bridges, and property along the banks of the river.” This exception was not called to the attention of the plaintiffs’ counsel, and he had no knowledge of it until after the trial.</p> <p>Subject to the defendants’ exception to the substance of the matter called for, and not to the qualification of the witness, Cross, one of the selectmen of Monroe in 1888 and agent of the town during that year in the business of reconstructing the roads, gave his estimate of the additional expense of maintaining a new road built in place of one that had been destroyed, and what part of a certain expense incurred by the town was unnecessary. One Hadlock was permitted to testify, subject to exception, that the banks are steeper on each side of the new road than they were on the old road, as bearing on the question of additional expense of maintenance.</p> <p>From the time the dam was repaired and rebuilt until it gave way, many citizens of Monroe, including some of the selectmen, had often been in plain sight of it. The company offered to show that after .their purchase, in 1886, they received no notice from the selectmen or other officers of the town, or from any source, that the dam was unsafe. The evidence vTas excluded, and the company excepted.</p> <p>An exception to the instructions to the jury is sufficiently stated in the opinion.</p>

Trover, for 217 pieces of cloth. Facts agreed. November 25, 1893, Benjamin Greenbank was adjudged insolvent, upon his petition filed November 17, 1893. A warrant issued November 25 to W. B. Richardson, deputy sheriff, as messenger. The defendant was elected and appointed assignee December 26. At the October term, 1893, for the southern judicial district of Grafton county, George II.

<p>Evidence of the existence and use of a foot-path across a railroad yard is competent on the question of negligence in the management of a locomotive at that point.</p> <p>A master is responsible for injuries caused by a negligent failure to inform his servant of dangers incident to the business to which third persons are exposed, which are known to him and unknown to the servant.</p> <p>When accessible witnesses of a transaction in dispute do not testify, either party may argue that they were not called by his opponent because their testimony would have been unfavorable.</p> <p>A verdict will not be set aside for the reason that the jury were urged to draw from admitted or established facts an unwarranted inference.</p> <p>A railroad company is bound to exercise ordinary care to avoid injury to one wrongfully upon its tracks, and is responsible for culpable ignorance of his dangerous situation.</p>

<p>In a libel for divorce for abandonment, the time during which the libellee has been insane cannot be included in computing the statutory period of three years.</p>

Case, for killing the plaintiff’s ox. Facts found by a referee. The plaintiff’s ox and three of his other cattle strayed from his pasture to the defendant’s adjoining field through the defendant’s insufficient fence. Afterwards, the defendant in attempting to drive the cattle home left the ox in the highway, where-it wandered upon a railroad track, and was killed by a locomotive under circumstances disclosed in the opinion.

Petition, for abatement of taxes assessed in April, 1893, on the court-house, jail, and county farm, which the plaintiffs claim are exempt from taxation.

Writ or Entry. Eacts agreed. The plaintiffs demand of the defendant the possession of a lot of land, numbered four in the tenth range of lots in Berlin. Both parties claim title under one Cross.

Case, for injuries received by the plaintiff while in the defendants’ employ. Jury disagreed. The defendants had a coal yard, a part of which was uncovered. During-the winter the soft coal stored in this section when wet by rain and melting snow froze, and formed a crust to the depth of a foot or more. The frozen crust at times overhung the coal bank, and would fall down in large masses. A day gang and a night gang worked in the coal yard.

Assumpsit, to enforce a lien for labor and supplies to the amount-of $570.46 furnished by the plaintiff to the defendants in cutting and hauling logs. Facts found by a referee. The defendants were engaged in cutting and hauling logs from their lot in Kilkenny. The plaintiff furnished them with supplies to the amount of $390.46, which went into the general enterprise, and drew logs as directed, for which there was due the sum of $180.

Assumpsit, for the price of a harness. Pleas: (1) the general issue; (2) payment; (3) that the harness was exchanged for cattle which the parties agreed should be weighed on delivery to-the plaintiff, but that the plaintiff, in violation of his agreement, took and drove away the cattle without the defendant’s consent, and had them weighed without notice to the defendant. Trial before a referee, who assessed the damages at $16.02, in case the defendant was liable.

Petition, for a writ of certiorari, filed February 8,1893. Facts found by the court. In 1855, the Atlantic & St. Lawrence Railroad Company, under authority from the state (Laws 1854, c. 1597), took and paid for a right of way in Berlin, four rods wide, for a branch railroad from their main line to the Berlin Mills. The branch was built, and has ever since been maintained. It, with other property of the company, was leased to the plaintiffs for the term of 999 years.

Coos, Case, for injuries arising from a defect caused by the defendants in a highway. To show the existence of the alleged highway, the plaintiff introduced in evidence, subject to the defendants’ exception, the record, of the laying out referred to in Grand Trunk Railway Co. v. Berlin, ante, p. 168. That case is made a part of this.

Assumpsit, for labor. The facts in this and seven other actions against the defendant involving the same questions were found by a referee. In September, 1890, the defendant took a job to haul timber from certain lots in Success. lie sublet a part of the job to B. K. Condon, by whom the plaintiffs were employed, at a stipulated price per month. They and others, fearing they would not be paid for their work, threatened to leave.

Trover, for five cows, with a count in case alleging that the plaintiff, as agister, had in his custody five cows which the defendants wrongfully took from him under pretence of impounding. Plea, the general issue, with a special plea of justification under impounding proceedings. Facts found by a referee.

Assumpsit, to recover the amount due upon promissory notes. Trial by the court, April term, 1894. The notes were secured by a mortgage of real estate, upon which the plaintiff recovered a conditional judgment at the same term, the amount adjudged due to the plaintiff being the full amount of the notes.

<p>A new trial may be granted when it appears from a discrepancy between a special and a general verdict that the jury failed to comprehend the instructions given them.</p> <p>Case, for negligently causing the death of the plaintiff’s intestate, George F. McMurphy, who was struck by a locomotive while driving over a highway crossing of the defendants’ railroad, and sustained injuries which resulted in his death. At the defendants’ request and against the plaintiff’s objection, the following questions were submitted to the jury: (1) Whether the act of McMurphy contributed to cause the accident? (2) Whether the act of the railroad' contributed to cause the accident? The jury answeréd both questions in the affirmative, and returned a general verdict for the plaintiff.</p>

<p>A royal charter is admissible as evidence o£ title to lands held under it.</p> <p>A deed unaccompanied by evidence of possession by the grantor, or his predecessor of record, is insufficient to establish title in the grantee.</p> <p>Trespass, quare clausum, with counts in trespass de bonis and in case. Plea, the general issue, with a brief statement alleging that the defendant’s wife was in possession of the land described in the writ, and justifying as her servant. Subject to the defendant’s exception, the plaintiffs put in evidence their charter. The court directed a verdict for the plaintiffs, and the defendant excepted.</p>

<p>An award is sufficiently certain and final if it leaves nothing to be performed to carry it into effect but the ministerial acts of computation and measurement.</p> <p>Assumpsit, on an award. Facts found by a referee. The parties, by an oral agreement, submitted all differences between them growing out of their partnership business to the determination of an arbitrator whoso decision they agreed should be final. After a hearing, the arbitrator awarded “ that Dorsey pay to Parker the sum of §289.82, Parker to pay from said sum all demands against the firm of Dorsey & Co. owed in Kensington, N. II., whether for apples, barrels, or casks. Dorsey shall keep to his own use all the empty barrels now in his possession, and Parker all the empty barrels now in his possession; Dorsey to have one half of the cider now at Parker’s, and Parker to have the other half.” Upon the foregoing facts the referee found in the plaintiff’s favor for the amount of the award, with interest from the date of the writ.</p>

Bill in Equity, to remove a cloud upon the plaintiffs’ title to a part of the Eaton farm. The defendant’s demurrer was overruled, pro forma. Facts found by the court. April 1, 1890, M. W. G., a resident of Chicago, 111., owned the farm, and a quantity of lumber piled upon it, that had been manufactured from timber cut on the farm. May 5, 1890, she conveyed a part of the farm to K, who mortgaged the same to the plaintiffs.

Bill in Equity, filed March 26, 1892, praying for an injunction against the manufacture of bricks near the plaintiff’s dwelling. Facts found by the court. In 1890, the defendants began the manufacture of bricks on their land about seventy rods from the plaintiff’s house. On a few acres of the plaintiff’s land, between her house and the brick-kilns, there is a natural growth of hard pine and a small percentage of white pine.

Petition, filed January 12, 1894, for the abatement of a tax assessed in Farmington against the plaintiff’, April 1, 1892, upon his stock in the Farmington National Bank. Facts found by the court. The plaintiff'was a resident of Haverhill, Massachusetts. In July or August, 1892, the collector of taxes of Farmington sent a bill of the tax, by mail, addressed to the plaintiff at Haverhill, which ho did not receive. He first learned of the tax in August, 1898.

Foreign Attachment. Issue between the plaintiffs and the claimant. Facts found by the court.

Bills in Equity, to determine the rights of the parties in property in which Samuel E. Colbath claimed an interest as the surviving husband of Carrie J. Colbath. Facts found by the court. Samuel E. and Carrie J. were cousins. Both resided in this state at the time of their marriage here in 1889, and thereafter until her decease.

Case, for negligently causing the death of the plaintiff’s intestate, Edgar A. Holbrook, on December 10, 1892. Facts found by the court. The plaintiff was appointed administrator in February, 1893, and on June 17, 1893, executed to the defendants a release under seal of all causes of action on account of said injury. The deceased was survived by a widow and two minor children.

Case, for injuries Í8 the plaintiff from a defective machine while in the employment of the defendants. Trial by jury. The machine was about three feet wide, two and three fourths feet deep, and six feet high, and was operated by a belt connecting it with shafting overhead. Attached to the machine were uncovered cog-wheels, the inrunning side being their under edge or rim. The distance from the floor to the center of the gearing was five feet and one inch.

Assumpsit, for money paid for standing timber, on the ground of a partial failure of consideration, with a count in case for depriving the plaintiffs of a part of the timber by conveying the land. Facts found by the court. December 17, 1889, the defendant, by a contract in writing not under seal, sold to the plaintiffs the pine and oak timber then standing on his farm, to be cut before April 1, 1891, for $600. which the plaintiffs paid.

Indictment, for perjury. Facts agreed. H. was arraigned and tried in the Laconia police court, on a complaint made by the defendant, alleging that H., “ in a certain public street in Laconia, called Messer street, did address certain offensive, derisive, and annoying words to him, the said Brown, and did call him by offensive and derisive names, viz.: ‘You are a God damned blackmailer,’ and other offensive words and epithets.” At the trial II. admitted that, on the occasion…

<p>Trespass, quare clausum. Facts found by the court. In the summer of 1892, Thomas Horne occupied a farm owned by one French; and by the terms of occupancy, was to cut and put into the barn the hay growing on the farm, which was to be the property of French. Horne owned an adjoining farm, known as the Batehelder place. The hay on both farms was cut by Horne and put into the barn on the French place, the good hay from both farms being commingled in bay No. 1. The hay in this bay was of uniform value throughout, and there was nothing in its appearance to indicate from which farm it had been cut. Of the nine tons of hay in bay No. 1, between three and four tons came from the Batchelder place.</p> <p>July 15, 1892, Horne mortgaged to the defendant, Hanson, all the hay standing and growing on the Batchelder place, to be cut and put into the barn without expense to Hanson. The mortgage was properly recorded within ten days. October 1, 1892, French sold and conveyed his farm and all hay cut on the place to the plaintiff; and about the same date, Horne conveyed to the plaintiff (his son’s wife) all the hay cut from the Batchelder. place and other personal property, in consideration of his support. The plaintiff did not then know of the Hanson mortgage. Shortly afterward, the plaintiff moved to the French place and took possession of the hay cut from both farms.</p> <p>The defendant, Hoyt, was sheriff of Carroll county, and assisted Hanson in foreclosing his mortgage. Before the foreclosure, the plaintiff and her husband declined to point out to the defendants the hay cut from the Batchelder place, and said that Thomas Horne had no hay in the barn. December 10, 1892, three and a half tons of hay were sold under foreclosure proceedings, and bid off for Hanson in satisfaction of his mortgage debt and costs of foreclosure. "When the defendants came to draw away the hay, the plaintiff and her husband fastened up the barn, and forbade the defendants to enter or take the hay. Hoyt broke open the door of the barn, doing little or no damage, removed the plaintiff’s straw and beans from bay No. 1 without injuring them, and took away three tons of hay from this bay. Of the hay so taken, all but a small portion came from the French farm. The court found a verdict for the defendants, and the plaintiff excepted.</p>

Bill oe Interpleader. The plaintiffs are executors of the last will and codicil of Thomas G. Valpey. All the legacies mentioned in the will have been paid in full, except that of $3,000 to the trustees of the Protestant Episcopal Church in New Hampshire for the use of the church at Penacook, that of $500 to the Concord Public Library, that of $500 to the library of St. Paul’s School, that of $500 to the Orphans’ Home at Millville, and that of $1,000 to the testator’s brother.

Assumpsit, to recover the value of a hogshead of molasses, destroyed by a fire caused by the defendants, while in their freight-house at Suncook. Facts found by a referee. The molasses was brought over the defendants’ road, and placed in their freight-house, May 4, 1887. It was destroyed by fire, May 10.

Case, for personal injuries. Verdict for the plaintiff. The plaintiff shipped milk daily from the defendants’ station at North Boscawen for six months before the accident. It was the duty of those shipping milk to deliver it upon a platform provided for the purpose, and to hahd the cans from the platform into the car. The brakeman of the train was accustomed to help load the milk, and, after it was loaded, to give tbe conductor a signal for him to start the train.

Bill in Equity, by the trustee under the following clause of Marion D. Lake’s will, praying for direction in the execution of the trust: “As to all the residue and ren. finder of. all my estate of every kind, I give, devise, and bequeath the same unto the said Henry J. Crippen, to hold the same in trust for the benefit of J ohn Douglass of Lancaster, aforesaid.

Trespass, quare clausum. Facts found by the court. The plaintiff’s close adjoins the defendant’s on the south, and the controversy is over the location of the division line. In 1856, John G. Hook owned a tract of land west of High street in Concord. He divided it into lots, and made a plan of the same and of Forest and other streets, which he recorded in the registry of deeds.

Appeal, from a decree of the judge of probate, appointing the defendant administrator of the estate of Mary E. Kelley, who died July 21, 1898, at East Kingston, while on a visit. She was last an inhabitant of Manchester, where she had real and personal estate. TJpon the petition of the plaintiff, one of her heirs, filed September 21, 1898, the judge of probate of Rockingham county appointed one Stearns administrator on the eleventh day of October.

Assumpsit, for breach of contract. Verdict for the plaintiffs. March 5, 1892, the defendants agreed in writing to sell and ship bo the plaintiffs, freight prepaid, 622 blankets of different styles, at prices specified, and not to sell plaid blankets to any one •else in New York city.” Both parties complied with the contract in all respects, except that the defendants sold plaid blankets to parties other than the plaintiffs soon after March 5, 1892.

Assumpsit, upon the defendant’s promissory note for $1,000, dated May 14, 1892, payable to the order of the plaintiffs in four months after date. Verdict for the plaintiffs. The plaintiffs did business in Boston, Massachusetts, and the defendant resided in Manchester in this county.

(1) Petition, for the determination of the amount due on two real estate mortgages, and (2) Writ oe Entry to foreclose the mortgages. Pacts agreed. June 24,1892, the mortgaged premises were conveyed to Melvin Badger, who assumed the payment of a note for $1,500 held by Gilman Clough, secured by a mortgage of the premises, and a note for $1,800 held by Freeman N Thurber, secured by a second mortgage of the premises.

<p>A party is bound by all acts of his attorney of record which the latter has implied authority to do by virtue of his retainer, as against one ignorant of Ms discharge.</p> <p>In the absence of any limitation of his authority known to the opposite party, an attorney of record may bind his client to a final disposition of an action by oral or written agreement entered on the record, made an order of court, and executed by his adversary in good faith.</p> <p>An infant suitor will be bound by the acts of an attorney employed by his next friend, as an adult would be.</p>

Assumpsit, to recover $50 for the funeral expenses of the plaintiff’s intestate, Misael W. Blain, and $376 insurance upon his life. Facts found by the court. The defendants are a voluntary association for affording relief to sick members, for defraying their funeral expenses, and for the payment, at the decease of a member, of a sum equal to one dollar for every surviving member.

<p>This court will not decide whether, under s. 6, art. 1 of the federal constitution, a member of congress in attendance at a session of the house to which he belongs is privileged from service of civil process made conformably to the laws of this state, in the absence of any adjudication of the question by the supreme court of the United States.</p> <p>Assumpsit. Facts agreed. A copy of the writ, duly attested, was seasonably left at the usual abode of the defendant in Manchester in this county by a qualified officer. The defendant was then and still is a member of the national house of representatives. When the copy was served, he was in actual attendance at a special session of congress, and most of the time since has been in attendance at said session and at the regular session, in the discharge of his public duties. Counsel for the defendant appeared specially, and moved that the writ and service thereof be quashed and the case dismissed, on the ground that as a member of congress in attendance at a session of the house to which he belonged, the defendant was privileged from service of any civil process issued by any state court and returnable during the session of said house; that no valid service had been made upon him under the circumstances, and that the court had no jurisdiction.</p>

Petition, for partition. To the defendants’ plea in bar — alleging that August 9, 1884, the plaintiff’s wife Mary was seized in fee simple of the land described in the petition and of other land, that on that day she and her husband entered into a contract for a division of property, that pursuant to the terms of «aid contract Mary deeded to the plaintiff one half of the property then standing in her name, that by said contract they mutually agreed with each other in writing…

Trover, for a parlor organ. Facts found by the court. May 3,1890, the plaintiff bargained in writing with George W. Brown for an organ, at the price of $100, of which ten dollars was paid down and five dollars was to be paid each month until the price and interest were paid in full, when the organ was to become-the plaintiff’s property, and in the meantime was to remain the property of Brown. If the plaintiff failed to make payments, Brown had a right to retake the organ.

Foreign Attachment. Facts found by the court. March 13, 1894, an action was pending between the same parties, including-the trustee, who was then discharged. He then had in his hands $12.60 wages due the defendant. March 15, 1894, the plaintiff brought suit against the defendant upon a new cause of action, and the writ was served upon the trustee March 16. The trustee disclosed $29.10 due the defendant for wages, including the $12.60. Neither suit was for necessaries.

Bill of Interpleader, as to $5,000 paid into court by the plaintiffs upon a benefit certificate issued by them July 1, 1880, to Companion Joseph G-. Adams.

Bill in Equity, alleging that Ella H. Willson, daughter of the plaintiff” and wife of the defendant, died April 13,1892, leaving a will which was executed March 28,1892, and was approved and allowed April 22, 1892; that the defendant was appointed executor thereof and has accepted said trust; that since the decease of the testatrix, the plaintiff' continued to live in the defendant’s family until March 1,1893 ; that the plaintiff' is eighty-two years old, is infirm by reason…

Appeal, from the decision of the mayor and aldermen awarding the plaintiffs no damages for land taken for a highway. The defendants in their answer aver that the plaintiffs’ land over which the new highway is laid is within the limits of an existing highway by prescription, and move that the issue on this averment be tried before sending the petition to the commissioners..

Indictment, for illegally keeping spirituous liquor for sale. Trial by jury. Verdict of guilty. The defendant introduced evidence tending to show that he was a registered pharmacist at the time and place it was alleged the offence was committed. He also offered in evidence five hand-bills of different kinds, as samples of those distributed by him for the purpose of advertísing certain remedies.

Petition, for the abatement of taxes assessed in 1894 by the ■selectmen of Charlestown. Pacts agreed. The plaintiffs are taxpayers in the north part of the town, which, prior to 1885, comprised school districts numbered 5, 6, 7, and 12. At the annual school meeting of the town district in 1894, it was voted to build two new schoolhouses in the south part of the town at an aggregate expense of $6,500. Hnder this vote the selectmen assessed a tax upon the entire town district.

Case, for negligently causing the death of the plaintiff’s intestate, Orren B. Davis, who was struck by a locomotive while driving over a highway crossing of the defendants’ railroad in Rumney. Trial by jury. Verdict for the plaintiff There was a flag station at the crossing where the collision occurred. The plaintiff put in evidence the following rules of the defendants, subject to their exception : “Rule 22.

Bill in Equity, praying that the defendant be enjoined from the further prosecution of a suit for foreclosure on real estate mortgaged to him by the plaintiff, and from removing, selling, or in any way interfering with certain personal property described in a chattel mortgage from the plaintiff to the defendant; and that he be commanded to cancel and surrender said mortgages and the note secured thereby.

<p>The production in evidence of the account books of a person deceased, accompanied by the suppletory oath of the administrator, does not constitute an election under P. S., c. 224, s. 16, and will not give the opposite party the right to testify in respect to facts which occurred in the lifetime of the deceased.</p>

<p>By an attachment of real estate, the creditor acquires a lien on all the debt- or’s interest except the homestead right.</p> <p>If the debtor conveys the premises occupied as a homestead and removes therefrom, the creditor may sell the same on execution, subject only to prior mortgages.</p>

Assumpsit. Facts found by the court. In the spring of 1891,. each of the plaintiffs subscribed for one or more shares of stock in a proposed corporation, by an agreement of which the following is a copy : “ We the undersigned subscribe to the capital stock of the Northwood Union Shoe Company the amount set', against our respective names. No subscriber to be held for all or any part of his subscription until the whole amount of the capital stock is subscribed, $25,000.

<p>Property of a partnership is not exempted from an assignment in insolvency as tools of the occupation of a member thereof.</p> <p>Trover, for carriage blacksmith’s tools. Pacts found by a referee. The plaintiff was a blacksmith, and a partner with one Bartlett in the business of making and repairing carriages. The tools were those of the plaintiff’s occupation, and were used by the firm. The defendant is the assignee in insolvency of the firm; and as assignee he took possession of all the partnership property, including the tools in controversy, and sold the same at public auction. The plaintiff claimed that the tools were exempt from the assignment in insolvency to the value of $100, while the defendant contended that they were the property of the partnership, and not exempted to the individual members thereof.</p>

<p>A public officer whose salary is fixed by law is not entitled to additional compensation ior any services rendered in the line of his duty.</p>

Bill in Equity, filed December 16, 1892, by Langdon M. Perkins, administrator of the estate of Mary A. Perkins, against Elizabeth A. Perkins and the Portsmouth Savings Bank. Facts found by the court. Mary A. Perkins died February 13,1888, and the plaintiff' was appointed administrator of her estate, January 14, 1892. At the time of her death she was the owner of a deposit in the Portsmouth Savings Bank and of a sum of money.

Case. To the plaintiff’s declaration,— setting forth that the defendants, a municipal corporation, are the owners of a system of water-works, and by pipes laid in the ground conduct water to the dwellings of residents in the city for which they receive compensation, that in laying the pipes in 1894, on Market street, their servants so carelessly and negligently filled the trenches in which the pipes were laid as to form a ridge in the street, making the highway defective and…

<p>Whether the expense of repairing a highway is burdensome to the town within the meaning of P. S., c. 73, s. 2, is a question of fact.</p> <p>Neither the utility of the road to the citizens of the town, nor the relative rate of taxation in the town and county, is alone a test of burdensomeness.</p>

<p>Trespass, quare clausum, for the recovery of damages for acts •done January 1,1887, and on divers days between that day and the date of the writ, March 19, 1892, and of the expenses incurred in regaining possession of the land from the defendant and his tenants and servants. Verdict for the plaintiff. Subject to the defendant’s exception, evidence was received tending to show the following facts:</p> <p>In 1890, the plaintiff recovered judgment in an action of trespass against Asa Beckman for building a house upon the premises. Owen, claiming to own the premises and that Beckman was his tenant, defended the action. The question of title was the only one tried. The judgment has not been satisfied. Owen and Beckman retaining possession notwithstanding the judgment, the plaintiff filed a bill in equity against them, praying for an injunction to restrain them from committing further trespasses, and to compel them to leave the premises. The bill was taken fro confesso, and a decree made enjoining the defendants to leave the' land forthwith and desist from committing further trespasses upon it, and ordering that a writ of possession be issued against them. Copies of the decree were given to them and a writ of possession issued, by virtue of which an attempt was made to put the plaintiff in possession, but without success. In a subsequent proceeding against Owen, Beckman, and another, for violating the injunction, it was found that they were guilty of contempt. As a result of all these proceediñgs, the plaintiff got possession of the premises in 1891. See 66 N. H. 424.</p> <p>It was ruled, subject to the defendant’s exception, that the plaintiff was entitled to recover the expenses necessarily incurred and actually paid by him in the equity suit and the proceeding for violating the injunction.</p> <p>The defendant offered to show that in 1742 the title to the premises was in the Province of New Hampshire, and that it has ever since been in the province and the state. The evidence was excluded, subject'to the defendant’s exception.</p>

<p>A town is liable, under Laws 1893, c. 59, s. 1, for damages happening by reason of the defect, insufficiency, or want of repair of a- covered drain beneath a sidewalk.</p> <p>Whether a failure to file the statement of claim required by P. S., c. 76, s. 7, was without.fault or neglect on the part of the person injured, is a question of fact upon which the finding at the trial term is conclusive.</p> <p>Petition, under P. S., c. 76, s. 8, for leave to file a statement of a claim for damages resulting from a defective culvert. Pacts found by the court.</p> <p>There was a covered drain leading from the gutter between the carriage-way and the sidewalk to a point about midway of the sidewalk, and there turning and running in the direction of the sidewalk about seven feet to a point where it connected with a culvert extending across the highway. There were holes in the sidewalk above this drain, caused by the sifting of the sand and gravel between the covering stones into the drain. The plaintiff, while walking on the sidewalk in the evening, stepped into one of these holes and was injured. The defendants denied their liability on the ground that the place of" the injury was not “ a bridge, culvert, or sluiceway,” within the meaning of Laws 1893, c. 59, s. 1.</p> <p>The plaintiff testified, in substance, that she did not know about the law requiring the filing of a statement of a claim of this nature; that on the eighth day after the injury, her husband, at her request, sent a letter to the selectmen of the town notifying them of the accident, which they supposed was sufficient compliance with the law; and that she was too sick t-o attend to it herself and entrusted the matter to her husband, not understanding that she Avas to do it in person. Upon this evidence, it was found that the plaintiff Avas unavoidably prevented from filing a statement, and leave to file one was granted, subject to the defendants’ exception.</p>

Bill in Equity, by the assignee in insolvency of William H. Rollins, to recover ten shares of the capital stock of the National Mechanics’ and Traders’ Bank and one bond of the Portsmouth ■ Company. Pacts agreed. May 14, 1894, the Leominster National Bank, by its attorney, Samuel W. Emery, brought suit against Rollins on a note endorsed by him.

Appeal, from the probate of the will of George W. Lane. Three issues were presented, at the trial: (1) That the will probated and allowed by the probate court was not the last will and testament of George W. Lane; (2) that the will was not signed by George W. Lane, nor by any person in his presence and by his express direction; (8) that the instrument was not attested and subscribed in his presence and at his request by three credible witnesses.

<p>Appeal, from the decision of the selectmen refusing to abate taxes assessed upon the plaintiffs’ pi*operty in April, 1893. The plaintiffs offered in evidence the judgment rendered at the March term, 1894, in their appeal from the refusal of the selectmen to abate taxes assessed on the same property in 1892. The question of the competency and effect of the judgment is reserved.</p>

Assumpsit, for money paid and lent. Pacts found by the court. The plaintiffs did business at Center Harbor, and the defendants, at Plymouth. Prom 1889 to 1893 the plaintiffs, in accordance with an agreement with the defendants, sent money for deposit, subject to withdrawal by check, to the defendants, sometimes by registered letter and sometimes by express,— the defendants paying the charges when the money was sent by express.

<p>Petition, of Sewall W. Abbott and fourteen others against the Wolfeborough Savings Bank, praying that the bank be ordered to pay the plaintiffs the amount of certain special deposits in full. The bank commissioners, to protect the general depositors, appear to oppose the petition. Facts found by the court.</p> <p>In October, 1893, an injunction”against the bank was granted by the supreme court on application of the bank commissioners. At that time the plaintiffs had certain sums on deposit with the bank as special deposits, and held pass-books marked “ special.” The deposits were not made as savings-bank deposits, and no interest or dividends thereon were claimed or paid. The treasurer paid out the money, or gave a check on a Boston bank, whenever it was called for. There was no vote of the directors on the matter. The money received went into the general funds of the bank, and there is nothing on the cash book to indicate what persons are special depositors.</p> <p>One of the bank commissioners testified to a conversation with the treasurer of the bank prior to January 1, 1893, in which he told the latter that the bank could not take special deposits, citing the opinion of the attorney-general in the Bank Report of 1890; and to another conversation in which the treasurer was told that the bank had no right to take special deposits as a bank of discount. The bank commissioners contend that private banking in a savings bank is forbidden by P. S., c. 165, s. 10, and that the receipt' of the special deposits was in violation of the by-laws of the bank.</p>

Assumpsit,'to recover the plaintiff’s salary as superintendent, of the defendant company; in the first action from May 1 to June 1, and in the second action from June 1 to September 1, 1894. Facts found by the court. At a meeting of the defendants’ board of directors in April, 1894, the plaintiff was elected superintendent for one year with a salary of $1,000, payable on the fifth of each month for the previous month.

Case, for injuries caused by a defective highway. In the statement required by Q-.

<p>In an action for personal injuries, the exhibition to the jury of some of the plaintiff’s toes which had been amputated in consequence of the accident may be competent evidence.</p> <p>A physician may properly be allowed to testify that the plaintiff’s damage, resulting from the loss of some of his toes on one foot, would be enhanced by the fact that the injured leg was shorter than the other.</p> <p>Case', for personal injuries. Verdict for the plaintiff. The plaintiff was run over by one of the defendants’ cars, and in consequence of the accident it became necessary to amputate some of the toes on his left foot. The amputated parts, preserved in spirits in a glass jar, were exhibited to the jury, and the defendants excepted. The plaintiff also exhibited his naked foot to the jury.</p> <p>The plaintiff’s left leg had been from his birth a little shorter than the other. His attending physician was allowed to testify, subject to exception, that the damage resulting from the removal of the toes from the left foot would be greater than it would be if the leg had been a perfect one, on account of increased inconvenience and irritation experienced in walking.</p>

Bill in Equity, for a homestead. This is the same case that is reported ante, p. 43. After that decision the plaintiff amended the bill by offering to redeem. The plaintiff’s petition for a homestead was not filed till September, 1893. The defendant claims that the right of redemption is barred.

Bill or Interpleader. March 1, 1869, George Clough took out a policy of insurance in the plaintiff company for $15,000, which was made payable to his wife Eliza R.; and “ in case of the death of the said Eliza R. Clough before the decease of said George Clough, the amount of said insurance shall be payable’ to their children for their use, or to their guardian if under age.” Previous to their marriage neither of them had children.

Evidence was introduced tending to show that the premises described in the petition, on March 2, 1894, were used by the defendant Collins for the illegal sale of liquor, with the permission and by the sufferance of the defendant MeShane. At the close of the state’s evidence, the defendants moved for a nonsuit and for a verdict. The motions were denied, and the defendants excepted.

Assumpsit. Facts found by the court. The defendant appeared specially and moved that the action be dismissed, because he was not an inhabitant of the state, no personal service had been made upon him within the state, and there had been no actual attachment of his property. The sheriff’ ’s return is as follows: “Merrimack, ss., July 14, 1894.

Bill in Equity, praying for the discharge of a mortgage. The bill ¿lieges that on June 23, 1882, one Richardson executed a mortgage of real estate to the defendant Hazelton, trustee, to-secure the payment of a note for $1,200; that the plaintiffs caused said real estate to be attached on a writ against Richardson, returnable in February, 1892, and now pending; that on June 14, 1893, the defendant Baker purchased all the right, title, and interest of Richardson in said real…

_ Assumpsit. Facts agreed. April 1, 1893, the Granite State Fire Insurance Company insured for one year property of the Boston & Maine Bailroad for $25,000. August 10, 1898, the property was destroyed by fire to the extent in value of $2,800, which sum the Granite State paid in October following.

Petition, for the set-off of a homestead. Facts found by the court. The defendant is the plaintiff’s husband and the owner ■ of the homestead, which is of greater value than $500. He owns no other real estate. Since 1881 the parties have not lived together, but the plaintiff has resided and now resides on the premises. The defendant claims that the petition cannot be maintained.

Trespass, de bonis, with a count in trover, for taking and carrying away and for the conversion of a diamond ring. Facts found by the court. The defendants were engaged in decorating the Statesman building, and employed B. and S.¿ two irresponsible strangers, to assist them.

Assumpsit. Facts found by the court. The defendant pleaded in, abatement that the service of the writ was not legal. He is a resident of Massachusetts and an attorney-at-law. He attended a hearing, as attorney for the petitioner, at a special term of the probate court of Grafton county, upon a petition for the revocation of the appointment of an administrator. He supposed it might be necessary for him to testify in making out the petitioner’s case, but he did not testify.

Assumpsit, upon a policy of insurance on the plaintiff’s mill and contents in Massachusetts, which were destroyed by fire. Verdict for the plaintiff.

<p>A lessor is not liable to a tenant oí the lessee lor injuries resulting from the unsanitary condition of the premises, in the absence of fraudulent concealment of the defects complained of, a warranty of fitness, or an agreement to repair.</p>

<p>Assumpsit. The facts are stated in the opinion.</p>

Assumpsit, on a promissory note for $290, payable to the plaintiffs at Boston, Mass., in six months, with interest, and dated November 9, 1892. Facts agreed. The note is signed upon its face by one of the defendants, McKellar, while the names of the other defendants, Priest and Bell, are written across the back in the' usual manner of indorsements.

Case, for negligently causing the death of William II. Tyler, the plaintiff’s intestate, by running upon him with a locomotive at a grade crossing in Manchester. Trial by jury. Verdict for the defendants. The plaintiff’s evidence tended to prove the following facts : Tyler was seventy-five years old, somewhat feeble, and very deaf.

Bill in Equity, alleging that for more than fifty years the First Presbyterian Society of Antrim have owned and used as a place of public worship, under the forms and usages of the Presbyterian church, a meeting-house, vestry, and appurtenances, situate in the central part of Antrim ; that at a meeting holden August 5, 1893, it was voted by three fourths of all the members of the society to sell the property, the proceeds to be appropriated to the payment of indebtedness and…

Assumpsit, for labor and materials. Facts found by the court» The plaintiff, a painter, furnished to the defendant, at his request, labor and materials in painting and decorating a bar and the room containing it. The plaintiff knew that it was the purpose of the defendant to use the room and bar in illegally selling intoxicating liquors; and after their completion they were' so used. The plaintiff took no part in their illegal use.

■Case, against the defendant as a common carrier of goods, for the loss of a hogshead of molasses. Eacts found by the court. The defendant was engaged in the business of trucking goods for hire from the railway freight station in Manchester to different stores in the city. On one of the warmest days in the summer qf 1891, he transported a hogshead of molasses from the 'freight station to the plaintiff’s store on Elm street, a distance of a little over half a mile.

Bill in Equity, by taxpayers of the city of Manchester, to set aside a contract made May 23, 1893, by the city councils of the city with the Manchester Electric Light Company for lighting the streets of the city for a period of ten years, on the ground that the councils did not have power to make a contract for such period, and that the contract is void because of fraudulent conduct of members of the city councils and of the agents of the company in making it.

Assumpsit, for goods sold and delivered. Trial by jury. Verdict for the plaintiffs. The writ is dated May 19, 1894; and the only question wras whether payment for the goods was then due, the plaintiffs claiming that it became due May 10, and the defendant that it was not due until June 10.

Case, for injuries from a defective highway. Trial by jury and verdict for the plaintiff. The plaintiff’s evidence tended to show that while driving on the highway in the evening of November 1, 1892, his horse slipped on the smooth and sloping side of a ledge which projected into the traveled track from nine to twelve inches above the level of the road, and was so injured that it died the next day.

Motion, by the Boston & Maine and the Concord & Montreal railroads, for the dismissal of the plaintiffs’ petition under P. S., c. 156, for the determination of the question whether the public good requires the building of the proposed railroad. It was alleged in support of the motion that the plaintiffs made application to the legislature at the session of 1895 for a charter for a railroad upon the route prayed for in this petition, and that such application was denied.

<p>A broker employed to sell land is entitled to the stipulated compensation if he produces a customer with whom the owner enters into a binding contract of sale.</p> <p>Assumpsit, for services. Facts found by a referee. In 1891, the defendant placed the sale of his farm with the plaintiff, agreeing to pay him $100 commission if he sold it. In August, 1891, the plaintiff' produced a customer, one Marston, with whom an agreement in writing was made, by which the defendant agreed to sell the farm to Marston and convey it by a good and sufficient deed on or before October 15, 1891, for $2,250 ; and Marston agreed to purchase it on those terms. The agreement also contained this provision : “ It is hereby agreed in case of a failure on the part of either of the parties to this agreement to perform any stipulation or agreements by him to be performed, that the party in fault shall pay to the other party the sum of $200 as liquidated damages.” Marston declined to take the property and paid the defendant the $200 damages, whereupon the agreement was can-celled. The plaintiff’ demanded the $100 commission of the defendant, which he refused to pay, claiming the farm was not sold by the plaintiff. Upon these facts the referee found for the the plaintiff. Both parties move for judgment upon the report.</p>

Indictment, for keeping malt liquor for sale, September 10, 1894. The defendant admitted that on that day he kept for sale “ Mascot beer,” and the defence was that such beer is not malt liquor. Trial by jury. Verdict for the state.

Motion, to quash the writ for want of legal service'. Property was attached upion the writ, and the officer made a return, dated April 6, 1895, that he “ summoned the within named defendant as within commanded by leaving at his last and usual place of abode a summons in the form prescribed by law, with my name and office endorsed thereon.” The writ was returnable at the April term, 1895.

Petition, for the set-off of a homestead. Facts found by the court. Held: bonds for the conveyance to them of other adjacent lands on the payment of $375, upon which they have paid $100. They have occupied these lands, depasturing them and talcing wood therefrom since they have held the bonds. March 3, 1894, the defendant caused the Eaton farm to be attached on her writ against the plaintiffs.

Foreign Attachment. Pacts found by the court. In 1894, the defendant and Eaymond M. Pollard jointly contracted to erect a sehoolhouse for the Lempster School District, agreeing between themselves to share the profits and losses of the contract equally. The district acted by its building committee, consisting of three persons, of whom Arthur L. Benway was one. May 3, 1894, the defendant gave the claimant an order as follows: “ Lempster, May 3d, 1894.

Trespass, for assault and battery. June 22, 1894, a freight train of the defendants arrived at the station in Newport, in charge of Conductor Woodbury. The plaintiff, expecting some freight on this train, .came to the railroad station to get it. He was informed by the station agent that there was no freight for him, but he entered one of the cars of this train where the conductor was unloading freight, and made an inquiry of him about the freight.

Libel eor Divorce, filed February 5,1894. The cause alleged was the defendant’s conviction of the larceny of a horse and his actual imprisonment therefor in the state prison, commencing November 20, 1892, under a sentence .for more than a year. The plaintiff has had her domicile in the state since December 28, 1893, and the defendant since April, 1892.

Assumpsit, for supplies furnished a person claimed to be a county pauper. Facts .found by the court. The plaintiffs’ claim was submitted to the county commissioners with vouchers and affidavits in proper form and by them disallowed. The plaintiffs thereupon, without any agreement with the commissioners and without their consent, brought this action.

Assumpsit. Facts agreed. The defendant was a member of the partnership of Hammond & Allen, who, previous to May 21, 1894, were engaged in business in West Stewartstown. At that time, Hammond, a resident of Yermont, and Allen, a resident of this state, made an assignment in insolvency to the judge of probate of all the property of the firm, and the messenger took possession of it, together with Hammond’s individual property in this state.

Assumpsit. Facts found by a referee. The plaintiff is the widow of John Dunn, who was admitted to membership in the defendant association, December 28, 1882.

Coos, Bill in Equity, for an injunction, and to determine the withdrawal value of shares of a building and loan association. Facts found by a referee. The defendants were organized as a building and loan association in September, 1890, under P. S., c. 166. All members are shareholders, and pay one dollar per month on each share until the shares mature, or are worth $200 each.

<p>The validity of a general warrant for tho collection of all taxes, made its conformity with G. L., c. 57, s. 8, cannot be destroyed or impaired by the issuance of a defective warrant for the collection of non-resident taxes, not required by the statute.</p> <p>A tax sale will not be invalidated because the account of sales filed by the collector with the town clerk was an unattested copy of the original return; nor because the list of redemptions was made by the town clerk, upon information seasonably furnished by the collector.</p> <p>The repeated payment by the true owner, of taxes assessed on non-resident lands in the name of a person deceased, is sufficient to warrant a continuance of such assessment.</p> <p>Payment of taxes on non-resident lands is not such conclusive evidence of ownership as to entitle the taxpayer to be treated by the collector as the known owner.</p>

Case, for personal injuries received by the plaintiff while in the employ of the defendants, by the falling upon him of a piece of blocking timber. At the time of the accident, the plaintiff’ was at work upon a wooden tank located in the basement of the defendants’ mill, then in process of building, upon which a large number of workmen were employed under the superintendence of one Norcross.

Assumpsit, to recover the price of driving logs. The defendant claims to recoup damages arising from the non-performance of the contract. Facts found by a referee.

Petition, for partition. Facts agreed. Simon Towle and David Towle, now deceased, were brothers, and previous to 1840 they owned the real estate in controversy in common. Simon died in that year, intestate, leaving four children, one of whom, an infant, died soon after, and Mary E. Miller, another child, died intestate in 1877, leaving two children, who are the plaintiffs. G-eorgianna Margerum was another child who died intestate in 1878, leaving no issue.

Libel, in which the town of Exeter is complainant, alleging that “ the following particularly described spirituous and intoxicating liquors, ... to wit, twenty-six cases of lager beer, of two dozen bottles each, of the value of sixty-four and T2^¡- dollars, . . . were kept for sale in violation of law in a certain building-in said Exeter, occupied by Ezra Fisher as a bottling establishment; that upon a lawful and proper warrant search of said premises was lawfully made and…

Writ oe Entry. Pacts agreed. September 7, 1882, the plaintiff took from Alfred Stayers a mortgage of the demanded premises, conditioned to be void if Alfred should pay his promissory note of even date for $5,000, save the plaintiff harmless from his indorsement of Alfred’s other note for $10,000, and “pay at maturity all sums for which said John [the plaintiff] may be liable as the indorser of said Alfred.” The two notes specially described were never executed.

Trespass, for assault and false imprisonment. Plea, the general issue with a brief statement that the defendant arrested and detained the plaintiff under legal process. Verdict for the defendant. The plaintiff’s counsel in opening the case to the jury-stated that he claimed and proposed to show that the defendant in making the arrest used unnecessary and excessive violence.

Case, for negligence. Pacts found by the court. The defendants own and possess a toll bridge over the Piscataqua river between Portsmouth and Kittery. On Sunday, April 29, 1894, the plaintiffs, having paid the required toll, were crossing the bridge, on a pleasure excursion, with a barge drawn by four horses ; and while on the portion within the state of Maine one of the horses was injured by a defect in the bridge caused by the defendants’ negligence.

<p>Petition, for an abatement of taxes for the following reasons : (1) Because the petitioners have not received the past year, and there is no prospect that they will immediately receive, any income from a portion of their assets amounting to $48,586.57; (2)' because they have not so much surplus relatively as other savings banks. The petition was dismissed, subject to exception.</p>

<p>Case, for personal injuries. Demurrer to the declaration.</p>

Appeal, filed March 19, 1892, from the award by the county commissioners of damages for land taken in laying out a highway. By agreement of parties the appeal was heard by a referee, whose report was filed June 21, 1895. The county commissioners’ report was filed February 11, 1892, and judgment ordered thereon January term, 1892. October term, 1895, the plaintiff moved for judgment for the amount found by the referee and interest.

<p>Trover, by the plaintiff as assignee of Martin R. Kelly, to recover the value of a stock of goods sold by Kelly to the defendant within three months of the insolvency proceedings. At the close of the plaintiff’s evidence a nonsuit was ordered, and the plaintiff excepted. The facts are stated in the opinion.</p>

<p>Appeal, from a decree of the probate court approving and allowing a certain instrument as the last will and testament of George W. Lane. The first reason assigned for the appeal is : “ Because said instrument was not the last will and testament of said deceased.” Four other reasons were assigned, two of which were abandoned, and issues framed under the others were found by a jury in favor of the executrix.</p> <p>The appellant tenders the following issue under the first reason of appeal: “ That said instrument ought not to be approved and allowed as the last will and testament of George W'. Lane, because she says that since the making and execution thereof the said George W. Lane in his lifetime revoked the same by making and duly executing another will, the provisions of which are inconsistent therewith and intended to revoke the same.”</p> <p>The executrix moves that the first reason of appeal be dismissed and for judgment affirming the decree of the probate court, because, (1) the second and third reasons of appeal haviug been abandoned, and the fourth and fifth determined in favor of the plaintiffs by the verdict of tHe jury, no further reason of appeal is alleged upon which an issue can be framed; (2) admitting, as claimed by the appellant, that a subsequent will was made by the deceased, no error is pointed out in the decision of the judge of probate, and no reason assigned why the probate of the will should not stand; (3) the first alleged reason is too loose, vague, and general, and amounts to nothing more than that the result is wrong; and (4) it affords the plaintiff no information of the error complained of and nothing on which to prepare for trial.</p> <p>The appellant moves for leave to amend the first reason of appeal by adding thereto, “ because since the making and execution thereof the said George W. Laue in his lifetime revoked the same by making and duly executing another will, the provisions of which are inconsistent therewith and intended to revoke the same.” The issue of revocation was intended to be raised by the first reason of appeal.</p>

Petition, for an abatement of taxes. Pacts agreed. Before October 1, 1895, the bank paid to the state treasurer a tax computed at three fourths of one per cent upon the amount of its deposits after deducting the value of its real estate and the value of its¡ mortgage loans upon land in this state, as authorized by statute. The assessors of Somersworth assessed a tax in 1895 upon shares of bank stock owned by the plaintiffs.

Case, for damages to the plaintiff’s horse from a defective highway. Trial by jury and verdict for the plaintiff If the defect from which the damage arose is one for which the defendants are liable, the plaintiff is entitled to judgment; otherwise, there is to be judgment for the defendants.

Assumpsit, for cutting lumber and peeling bark. Trial by jury. Verdict for the plaintiff*. By an agreement in writing the plaintiff was to peel all the hemlock bark standing on the Tuttle farm in Lincoln that the defendant might require, and receive therefor $1,871 per cord. The plaintiff’s evidence tended to prove the following facts: The plaintiff cut and peeled 420 cords of bark.

Assumpsit, on a policy of life insurance, and Bill or Inter-pleader, to determine to whom the amount due upon the policy should be paid. Facts agreed. The policy was issued February 9, 1866, upon the life of Charles C. Smith, payable to his wife, Ruth K. Smith, for her sole use and benefit, and in case of her death before the decease of her husband, to their children.

Trespass, guare clausum. Trial by jury and verdict for the defendants. September 5, 1894, Joseph Pike conveyed his homestead premises to the defendant Sawyer, by a warranty deed in which his wife did not join. The conveyance was fraudulent and void as against the plaintiffs.

Bill in Equity, by the executor of the will of William Walker, praying the direction of the court as to the construction of the will. By the will, the use and income of all the testator’s property were given to the defendant for life. After the payment of certain legacies, the residue was given to the plaintiff.

Foreign Attachment. At the April term, 1895, the defendants recovered judgment against Clements, trustee in this action, upon which execution issued, but has not been satisfied. Shortly after such judgment and execution the present suit was begun. The defendants moved to discharge the trustee.

Assumpsit, for labor and services rendered from April 1,1886, to July 1, 1888. Facts found by a referee. The plaintiff from the time she ivas ten years old, in 1861, lived with her uncle as one of the family, receiving the same treatment as other members of his family, until he died in 1886, leaving by his will $1,000 in trust for her use and benefit during her life.

<p>An administrator may maintain a bill in equity to set aside a conveyance of real estate by the deceased in fraud of his creditors, if the property is needed to pay debts.</p> <p>In such an action, the report of a commissioner allowing a claim against an estate settled in the insolvent course is competent but not conclusive evidence of an indebtedness existing at the date of the conveyance.</p> <p>The allowance o£ a claim by a commissioner may be impeached for fraud or collusion by one sought to be affected thereby who was not party or privy to the proceedings, and had no right of appeal therefrom.</p> <p>A commissioner may testify concerning the items of an account upon which an allowance was made, if they are not shown by his report.</p>

Assumpsit, to recover dividends on bank stock pledged to tbe plaintiffs. Facts found by the court.

Assumpsit,- to recover for services as a physician. Pacts 'found by the court. In consideration of certain real estate conveyed to her by her father and mother, the defendant gave them a bond for support during their lives. While this agreement was in force, the plaintiff attended the parents, made his charges to the mother, and was told by her to present his bill to the defendant, who would pay.

Petition, by stockholders of the Universal Collar Company, praying that the receivers of the defendant corporation be required to pay into court $1,490.72 for the use of the Collar company. Pacts found by the court. Carlos E. York was the treasurer of the Collar company and a stockholder of the York Market Company.

Assumpsit, upon the two $1,000 notes hereinafter mentioned. Writ dated, April 18, 1892. Facts found by the court. November 5, 1885, the defendant gave James S. Pierson three notes, two for $1,000 each and the other for'$2,000, all made and dated at Huntingdon, Pa., payable to Pierson or order on or before May 1, 1887, with interest semi-annually from November 1.

<p>When pledgors of real estate securities with trustees for bondholders are, by the terms of the pledge, to have the management and collection of the pledged securities until it appears that the interests of the trust require that other agencies be employed, a promise to pay the pledgors for services so rendered will not be implied.</p> <p>A provision that “ all collections of principal on mortgages, all sums realized on sales of any property then in this trust, all rents, income, and interest in excess of the amount required to pay the interest on the outstanding obligations, sums paid as taxes, and actual expenses of administering this trust ■shall be paid over to the trustees,” does not authorize the pledgors to retain any of the principal for compensation, or for interest or taxes paid by them.</p> <p>Such agreement is a pledge of the principal and the net income,— and the stipulation that any part of the income used by the pledgors for taxes or expenses shall be paid to the trustees before the pledgors make dividends to stockholders, requires that the gross income be paid to the trustees before dividends can be declared.</p>

Probate Appeal. Facts found by the court. By an agreement dated September 1, 1892, duly recorded in the offices of the city clerk of Manchester and the secretary of state, five citizens of Massachusetts associated themselves together to form a corporation, to be known as The Woodworth-Mason Company, “ for the purpose of manufacturing lumber into boxes, and the sale of the same, to lease, purchase, and convey real estate,, to buy and sell personal property, and to do all acts…

Petition, for the determination of the question whether the public good requires that the petitioners’ railway shall be built upon a proposed route specifically'described. The petitioners were incorporated by act of the legislature, March 81, 1893 (Laws 1893, c. 274).

Assumpsit. The writ contains a special count on a contract for the plaintiff’s services for one year from May 1, 1894, of which the alleged breach was his discharge January 1,1895, and also general counts under which the plaintiff specified a claim for $260 as a balance due for labor. The plea was the general issue, with a brief statement setting up in recoupment the loss of $457.60 through the plaintiff’s negligence and his disobedience of the defendants’ orders.

Indictment, for a violation of the liquor law, obtained on evidence produced by a private prosecutor. Witnesses were called who failed to testify to anything tending to sustain the charge. It was ruled, subject to the prosecutor’s exception, that the fees of such witnesses should not be taxed against the defendant.

Writ oe Entry. Facts found by the court. The defendant claims title under a tax collector’s deed to him, founded upon a sale for non-resident taxes assessed upon the demanded premises by the selectmen of Landaffin 1879. The plaintiff acquired his title from grantees of the New Hampshire Iron Company, who were the owners of the premises in 1879.

Assumpsit. The principal defendants were defaulted, and the controversy relates to the chargeability of the trustee. Pacts found by a referee. September 19, 1891, the trustee, Lombard, gave one Bicker a bond to convey certain land to him upon the payment by Bicker or his assigns of the sum of $5,000 on or before April 1, 1892. Bicker also held a bond from one Holbrook for the purchase of other land.

Assumpsit, on policies of insurance issued by the Granite State Fire Insurance Company, the Home Insurance Company, and the Imperial Insurance Company. The defendants admit their liability, either to the plaintiff or to the claimants, as the court may determine. / Prior to October 24, 1893, the plaintiff was engaged in the business of bottling lager beer at Groveton, and selling the same, together with some intoxicating liquors, at wholesale, in New Hampshire and Vermont.

Case, against an innkeeper, by each plaintiff for the loss of his hat. Facts found by the court. Near the entrance to the dining-room of the defendant’s hotel in Manchester, he has a rack on which his guests are invited to deposit their hats while eating their meals. On the evening of January 8, 1895, he provided in his dining-room a banquet for a club, under a contract by which the club agreed to pay a specified sum for each plate.

Appeal, from the police court of Northumberland. The defendant was convicted in the police court upon his plea of not guilty to a complaint charging him with keeping for sale lager beer aud fermented cider, and-sentenced to pay a fine of ten dollars and costs.

<p>Case, for negligently causing the death of George F. MeMurphy, the plaintiff’s intestate. Trial by jury and verdict for the plaintiff.</p> <p>February 13, 1891, MeMurphy, while riding in a sleigh drawn by one horse, was struck by the defendants’ locomotive engine at the Massabesic-street crossing in East Manchester, and so injured that he died. The crossing is in the compact part of the city. At the crossing and for a long distance easterly of it both the railroad and the street run nearly east and west, making with each other at their intersection on the crossing an acute angle. Opposite the crossing, and abutting upon it, Cypress street opens, leading southerly. A large shoe factory building stands on the easterly corner of that street aud Massabesic street. The defendants have a side track extending along by the building and between it and Massabesic street. At the time of the accident the street was icy. The snow had been plowed out of the traveled path to the width of eight or ten feet, and shoveled up from the road toward the side track and from the side track toward the road, making a hard ridge or bank between the street and the side track. A flat car and a box car stood on the side track, one near each end of the factory building. There was a depression in the street at the crossing caused by removing the snow from the track. At a point 593 feet easterly of the crossing there was a pile of sleepers by the side of the railroad. Jewett street, leading southerly, intersects with Massabesic street at a point 898 feet easterly of tlie crossing. From the crossing nearly to Jewett street there was a bank wall between the railroad track and the street. McMurphy and the defendants’ train were both going westerly towards the crossing. At the whistling-post, eighty rods distant from the crossing (at which point the train was,'by reason of a curve, out of McMurphy’s sight), the whistle was properly sounded, and thence to the crossing the hell was continuously rung. There was no flagman at the crossing.</p> <p>The plaintiff’s evidence tended to show that the train was running thirty to thirty-five miles an hour (forty-four to fifty-one feet a second), and did not slacken its speed until McMurphy was struck; that McMurphy’s horse was somewhat afraid of the ears, requiring considerable effort to control him when near them, though he never became wholly unmanageable; that when the train reached the pile of sleepers an alarm was blown upon the whistle; that this was the first intimation McMurphy had of the approaching train; that until this time he had been driving at the rate of five or six miles an hour (seven to nine feet a second); that he was then nearly opposite the easterly end of the .factory building and some 100 to 120 feet from the crossing; that the traveled path of the street was at this point twelve to fifteen feet from the railroad track; that at the sound of the alarm McMurphy turned Ins head, appeared to see the train, swung his-whip, urged his horse to greater speed, and drove directly upon, the crossing; that the engine struck the back of the sleigh about six inches from the left-hand corner; that the horse exhibited no signs of fright till he reached the crossing, and was not then at all unmanageable; that on account of the cars on the side track, and the ridge or hank of snow, it was not possible for McMurphy to turn into Cypress street without going upon the crossing. The-defendants’ motion for a nonsuit was denied and they excepted.</p> <p>A witness for the plaintiff (found by the court to be qualified for the purpose) was permitted to testily, subject to the defendants’ exception, that a train coming from the rear would be more likely to frighten a horse than one approaching him in front, and that the horse would be likely to manifest more fright when the train was opposite him.</p> <p>The court declined to instruct the jury that “ if the jury find that McMurphy consciously drove in front of the approaching train, his administrator cannot recover of the defendants, unless-the defendants, after discovering McMurphy’s danger, might have-prevented the accident by the use of ordinary caro,” and the defendants excepted. They also excepted to instructions given as follows: “ If you find McMurphy was put in sudden peril in consequence of the negligence of the defendants, or for any reason for which he was not responsible, and adopted a .course which in-ordinary circumstances a prudent person would not have adopted, lie is not necessarily chargeable with negligence; but the test is, would an ordinarily prudent person under the same circumstances have done as he did.”</p>

<p>An action may be maintained upon an agreement for restitution by a defaulter, without regard to the illegal character of the business in which the funds were acquired.</p>

Indictment, charging that the respondent “ did unlawfully make and put up a pretended lottery called policy, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state.” Motion to quash.

Trover, for hay. Pacts found by a referee. Early in 1890, the plaintiff and one Halley, who owned a farm in Exeter, had negotiations with reference to a lease of the farm to the plaintiff for the term of five years. Haley agreed to give a lease for that term for $150 a year and allow the plaintiff to sell some of the hay raised on the farm, provided it was done so as not to injure the farm; meaning if any hay was sold, manures or other fertilizers should be bought and used.

Assumpsit, for goods sold. Facts agreed. The defendant’s property was attached on the writ, October 3, 1895. He was decreed an insolvent upon a creditors’ petition filed January 2, 1896. If the insolvency proceeding dissolved the attachment, the plaintiff is to be nonsuited; otherwise, he is to have judgment.

Motion, by the plaintiffs, for confirmation of sale made by a commissioner in proceedings for partition of certain real estate, and for judgment on his report. Proceedings for partition were begun by two tenants in common, each owning one sixth of the realty in question, against the five tenants in common of the other four sixths. The estate not being divisible, the court decreed a sale and duly appointed a commissioner to sell it.

Petition, by George E. Kent of Pittsfield, administrator of the estate of John J. Bell, late of Exeter, and the heirs of said John J., residents of Exeter, for the abatement of a tax assessed by the selectmen of that town against the heirs of John J. Bell, upon bank stock belonging to Bell’s estate. The bank stock was duly returned for taxation in Pittsfield by Kent, and there taxed. The defendants demur to the petition.

Bill in Equity, by the plaintiff, as assignee in insolvency of the estate of William W. Wilder, against William W. and .David F. Wilder, alleging that a sale made by William of his interest in the partnership property of Wilder & Son to his copartner, David, was fraudulent as to creditors, and praying that David be required to account.

<p>When the circumstances under which an accident occurred disclose nothing in the plaintiff’s conduct to which negligence can fairly be imputed, the absence of fault may justify a finding of due care on his part.</p> <p>Case, for negligence. Trial by jury and verdict for the plaintiff. The plaintiff’s evidence tended to show that she was a passenger upon one of the defendant’s cars on December 20, 1894; that the conductor stopped the carat a certain place at her request, to allow her to alight; that when she was upon the rear platform or lower step of the car and about to get down, she noticed a team approaching at a high rate of speed on the side of the car on which she was, and requested the conductor to wait a moment for the team to pass; and that after the team had passed, as she was putting one foot from the lower step to the ground, the car started quickly, and she was thereby thrown to the ground and was injured. When the plaintiff rested, the defendant moved for a nonsuit on the ground that she had not shown affirmatively that she was not in fault. The motion was denied, and the defendant excepted.</p>

Trespass, quart clausum. The plaintiff introduced testimony? subject to the defendant’s exception, tending to show that the defendant made certain admissions in favor of the plaintiff in an interview had upon the premises after the action was brought for the purpose of settling the controversy and avoiding litigation. The defendant denied that he made the admissions.

Assumpsit, for board furnished a school teacher and for money paid for her services. Facts found by the court. In 1888 the plaintiff was one of the school board of the school district of Alton, coterminous with the limits of the town of Alton. He examined the teacher, gave her a certificate of qualification, employed her to teach the school, furnished her with board during the school term, and paid her for her services.

Assumpsit. Facts found by tbe court. The defendants recovered a judgment against the plaintiff'upon a mortgage as follows: “It is therefore considered by the court that unless the defendant [the plaintiff in this action] pay the plaintiff [the defendants in this action] the sum of within sixty days from date of judgment, that the plaintiff' [defendants in this action] recover possession of a certain tract of land set forth at large in the writ on file, and cost taxed at…

Assumpsit, by the assignee in insolvency of the Laconia Manufacturing Company, to recover $457.53. Facts found by the court. December 30, 1893, the Laconia Manufacturing Company, a corporation organized under the laws of this state, was indebted to the defendant, a resident of Laconia, in the sum of $850 upon an open account, and was insolvent.

Petition, to the county commissioners, for the removal of gates and bars across a highway in Tamworth, laid out by the selectmen, subject to gates, June 5,1852. The petition alleged that the gates and bars had become unnecessary and inexpedient, that the selectmen, upon petition to remove the gates, refused to do so, and requested the commissioners to lay out the road as an open highway.

<p>If a purchaser of an equity of redemption subsequently acquires title to the mortgage and attempts to foreclose by executing the power of sale contained therein, there will be no merger of the legal and equitable estates; and a defective deed given in pursuance of such sale will operate as an assignment of the mortgage.</p> <p>In such case, the mortgage subsists for the benefit of the purchaser and his successors in title, and a writ of entry cannot be maintained against him or them by the mortgagor or those claiming under him.</p> <p>Writ oe Entry. Pacts found by the court. Both parties claim under Hattie B. Davis, who acquired title subject to au outstanding mortgage, September 10,1888. The mortgage gave the owner of it power to sell the premises for the purpose of foreclosure in case of breach of condition. It was assigned to Davis, September 5, 1884; and June 22,1885, she attempted to execute the power by selling the premises in accordance with its terms. Her deed to the purchaser was attested by only one witness, and was recorded, June 26, 1885. The defendant claims under the grantee in this deed. February 3,1886, Davis gave Stephen W. Trowbridge a quitclaim deed of the premises, dated June 22, 1885, and acknowledged February 3, 1886. Trowbridge had no actual knowledge ox the Davis deed given in execution of the power. The plaintiff claims under Trowbridge.</p>

But state courts have never been excluded from jurisdiction of cases that merely “affect” consuls. If Fisher had not been named in the writ as a codefendant, it could not have been pretended that the case was against him, and the fact that it might “ affect ” him by leading to a suit for contribution would not have brought it within any of the statutes, even if it might under the constitution have given a concurrent jurisdiction to the-supreme court of the United States.

Appeal, by the defendant, from the sentence of the police court for an aggravated assault. The defendant was arraigned before the police court of Concord, and pleaded not guilty. He was tried by the police court, found guilty, and sentenced to pay a tine of §100. He appealed to the supreme court, and recognized for his appearance and to enter and prosecute his appeal.

<p>The liability of the sureties on an executor’s bond is coextensive with that of the principal.</p> <p>Where by a decree of the probate court the executor is charged with the amount of his indebtedness to the testator, the sureties are liable therefor; and their liability is not affected by the fact that the executor was insolvent at the date of his appointment and unable to discharge his indebtedness to the estate at any time thereafter.</p>

Case, for personal injuries caused by the defendants’ circular saw in their shop at Concord.

Petition, under P. S., c. 157, s. 12, for the adjustment and determination of unsettled claims and accounts relative to the use by the plaintiffs of the tracks of the Eastern Railroad in Ports-' mouth, of which the defendants are lessees, and of the rates and .terms for such use hereafter. On a similar petition in 1865, the rate was fixed at five cents per ton.

Case, for injuries to the plaintiff’s intestate caused by tlie defendants’ negligence. Trial by jury and verdict for the plaintiff. At the close of the plaintiff’s evidence the defendants moved for a nonsuit; and at the close of the evidence on both sides they moved that a verdict be directed in their favor. Both motions were denied, subject to their exception. The evidence tended to prove the following facts : The deceased, William II.

Trespass, for false imprisonment. Facts found by the court. The plaintiff was duly summoned, January 9, 1896, to appear before the defendant, a justice of the peace, at his office, on January 10, 1896, at 3 o’clock A. M., to give his deposition concerning an issue between the plaintiff and the trustee'in an action then pending, and was paid the legal fees for such attendance. He did not appear.

<p>Foreign Attachment. Issue between the plaintiff and the claimant. Facts agreed. The writ was served on the trustee, September 14, 1894.</p> <p>January 27, 1894, the Haley Manufacturing Company made a voluntary assignment. February 1, 1894, the company was decreed insolvent by the probate court for this county, upon a petition of creditors filed January 19, 1894, and February 24, 1894, George A. Foster, trustee in this action, was appointed assignee. At the time of the assignment, John J. Haley resided in Newton, Mass., but he had been in Concord a large portion of the time for several years in the performance of his duties as treasurer of the company, and while in Concord contracted the indebtedness to the plaintiff. He had a claim against the company for $88,821.46.</p> <p>February 18, 1894, Haley made a common-law assignment to Tlieophilus King of Quincy, Mass., covering all his property of every kind. This was assented to by one of Haley’s creditors, so as to make it immediately operative; and under it King at once took possession of all the property of Haley. Some of the creditors in Massachusetts did not assent to this assignment; and on February 20, 1894, Haley made an assignment in insolvency in the probate court for the county of Middlesex, commonwealth of Massachusetts, and March 8, 1894, King was appointed assignee. Under this proceeding, claims to the amount of over $59,000 have been proved against Haley’s estate.</p> <p>Among the assets which Haley filed in his inventory with the probate court in Massachusetts was his claim against the company. This claim was filed against the company in the insolvency proceeding in this county, by King in his capacity as assignee, and after a hearing was allowed, as follows: “J. J. Haley (T. King, assignee), $88,421.46.” A petition of other creditors of the company for leave to appeal from this allowance is now pending.</p> <p>November 2, 1895, the probate court for this county decreed a dividend of twenty per cent payable to the creditors of the company, and the sum of $17,764.29 was ordered to be paid to “ John J. Haley (Theophilus King of Boston, assignee in Mass.).”</p> <p>The plaintiff is a resident of Concord, and did not prove his claim under the proceedings in Massachusetts.</p>

Covenant Broken, against Winthrop Y. Hill and Nancy M. Hill. Trial by the court. Upon facts stated in the opinion, the court ordered judgment for the plaintiff against both defendants for nominal damages only. The plaintiff and Nancy M. Hill excepted.

<p>Evidence that a horse exhibited fear on approaching a pile of lumber by which it was alleged to have been frightened at an eai'lier hour on the same day, is competent as tending to show the cause of fright on the occasion in question, and also that the lumber was likely to frighten horses.</p> <p>Evidence that after an accident the plaintiff was unable to wear clothing to which she had been accustomed is competent to show the extent of her injuries.</p> <p>When a cross-examination suggests improper conduct on the part of a witness, the suggestion may be rebutted by evidence tending to show that it was without foundation.</p> <p>One who negligently places near a public highway an object calculated to frighten horses lawfully driven thereon, or who negligently conducts his lawful business in such a manner as to frighten them, is liable for the con- . sequences.</p> <p>Case. Trial by jury, and verdict for tbe plaintiff. Tbe court, subject to exception, overruled a demurrer to the declaration, the allegations of which were, in substance, that the defendants “ so negligently and carelessly placed, piled, and scattered about, close to ” a public highway, certain planks, timbers, and lumber, that the plaintiff’s horse, attached to a wagon, while she was lawfully driving it on the highway near the timbers and lumber, was thereby frightened and caused to run and upset the wagon, whereby the plaintiff was injured.</p>

<p>Assumpsit, to enforce a lien for $562.45, the balance due the plaintiff for ironwork furnished by him for the building of defendant Clark’s block. The writ is dated January 20, 1894. Facts found by the court.</p> <p>Kimball was Clark’s agent and had charge of the construction of the block. Early in 1893, Clark entered into a written contract with Maurice & Dufresne to construct for him a brick block. March 25, 1893, the plaintiff’ agreed with Maurice & Dufresne to furnish and put in place on the block skylights, wall-caps, and bay windows of galvanized iron for $1,162. September 19,1893, the plaintiff’, who had then partially performed his contract, notified Clark and Kimball in writing that he should claim a subcontractor’s lien. Previous to and on December 6,1893, Maurice & Dufresne paid the plaintiff’ $500, which was all that was due him for labor and materials furnished up to that time. After December 14, 1893, the plaintiff furnished the remaining labor and materials necessary to finish his work, and January 12, 1894, completed his contract. The next day he gave to Clark an account in writing of the labor performed and materials furnished within the preceding thirty days amounting to $562.45. It was not questioned that this sum was due to him from Maurice & Dufresne. They failed January 12,1894, before they had finished the block. Clark finished it at a cost exceeding the contract price. He advanced to them before their failure some thousands of dollars more than was due to them under the contract. He paid them nothing after he received the account rendered by the plaintiff on January 13,1894.</p> <p>The plaintiff brought the action originally against Clark and Kimball only, seeking to charge them personally for his claim. Subject to their exception, he was afterwards permitted to amend by making Maurice & Dufresne parties defendant for the purpose of establishing and enforcing his alleged lien.</p>

Appeal, by the defendant, from a decree of the probate court on the petition of the plaintiffs filed April 20, 1895, adjudging him insolvent. Facts agreed. A salesman of one ' of the plaintiffs subscribed his employer’s name to the petition and made oath to it as his agent, at his request communicated by telegraph.

.Appeal, from the report of the commissioner on the estate of William Perkins disallowing the plaintiff’s claim. Yerdictfor the plaintiff. The plaintiff kept the books and collected the accounts of a coal firm at the request of Perkins. After Perkins’ death, the defendant, executor of his will, called upon the plaintiff and requested a settlement.

<p>Petition, of the assignee of the Granite State Provident Association, asking for instructions as to the performance of his duties. Facts found by the court.'</p> <p>The Granite State Provident Association, duly incorporated by the legislature (Laws 1881, c. 233; Laws 1887, c. 281), began business upon the plan of a building and loan association in 1888. In March, 1896, there were about 18,000 members, and of these about 1,700 had borrowed money of the association and given mortgages on real estate to secure their indebtedness. The non-borrowing members were called investors. Each member subscribed for one or more shares of the nominal par value of $200 each, and paid $1 per month as dues on each share of stock so held by him. It was estimated that at the end of eight years the association could pay to each investor the sum of $200 for each share, and deliver up to each borrower any mortgages held against him. Any member might borrow an amount equal to the nominal par value of the shares held by him. A borrower gave two mortgages as security for his loan, the first mortgage being for such an amount of the loan as would readily facilitate its sale by the association to third parties, while the second mortgage was always held by the association. In the second mortgage the borrower agreed to pay the dues on the shares held by him until they should be worth $200 each, when the value of the shares would be sufficient to extinguish the principal of the mortgage debt; and the association agreed to pay the note secured by the first mortgage, and deliver to the borrower the cancelled mortgages. The shares held by the borrower were assigned to the association as additional security.</p> <p>In making loans two plans were adopted. On the gross premium plan the borrower gave his notes for the amount loaned, including the premium, which was usually twenty per cent of the total amount. If the borrower gave notes for $1,000 secured by mortgages, the actual amount advanced to him was $800. Such a borrower carried five shares on which he paid $5 per month, $4 on ‘the four shares representing the $800 loaned, and $1 on the premium share; and in addition to this he paid $5 interest each month, $4 being six per ceut interest on the $800 advanced, and $1 being six per cent interest on the premium share. The difference between the amount actually loaned and the face of the mortgage notes is the gross premium. On the cash premium plan, a borrower of $800 paid $4 per month on four shares, and $4 per month interest on the amount loaned. In addition to this, he paid a monthly cash premium of $2, or three per cent per annum on the amount loaned. In some instances the cash premium was more than three per cent.</p> <p>March 18, 1896, upon petition of the bank commissioners, the association was enjoined from doing any further business, and an assignee was appointed to wind up its affairs. lie found that prior to Ms appointment several borrowers had paid the interest on their first mortgages held by third parties, and that these sums had never been paid to the first mortgagees. The mortgages taken by the association were on real estate in several states, and such of them as had not been sold were among the assets turned over to the assignee. In some states ancillary receivers were appointed, who proceeded to collect the amounts due on mortgages of real estate in their respective jurisdictions. Some of the receivers demanded such securities of the assignee, but he refused to surrender them. The assignee asked for instructions as follows :</p> <p>1. Do all mortgages held by the association against the members become due by the appointment of the assignee, regardless of the times or terms of payment set forth in the same ?</p> <p>2. Can the assignee collect of a borrower any more than the amount actually advanced, or, in other words, can the gross premium be collected ?</p> <p>8. If the gross premium cannot be collected, should the interest on such gross premium to March 18, 1896, be applied on the amount actually advanced, or be retained according to the tenor of the contract to that date ?</p> <p>4. Should the cash premium paid previous to March 18, 1896, be applied on the amount actually advanced, or be retained according to the tenor of the contract to that date ?</p> <p>5. What disposition should be made of interest paid by members previous to March 18,1896, to the association and now held" by it?</p> <p>6. Shall the assignee surrender mortgages on real estate in any state where an ancillary receiver has been appointed, to such receiver ?</p>

Debt,-for rent reserved in a lease. Facts agreed. May 24, 1894, the plaintiffs leased to the Granite State Provident Association certain premises in the building known as The Kennard in Manchester for the term of ten years from July 1, 1894, at an annual rental of $3,600. March 18, 1896, upon the petition of the bank commissioners, the association was enjoined from doing any further business, and the defendant was appointed assignee to wind up its affairs.

Assumpsit, to enforce a lien on a lot of brick, for wood furnished to burn the same. Pacts agreed.

Assumpsit, for dividends declared by the defendants on thirty shares of their stock. Facts agreed. The plaintiff brings the action as receiver of the People’s Fire Insurance Company.

Assumpsit, for beef, apples, and veal sold and delivered. Facts found by the court. The goods were brought from Goffstown and sold by the plaintiff at a store' in Manchester carried on by the defendant’s wife, for whom the defendant was a clerk without pecuniary interest in the stock. The defendant bargained with the plaintiff for the goods, the plaintiff supposing that the defendant was carrying on the business of the store.

Case, to recover damages for personal injuries resulting from negligence. IJpon a trial by jury a nonsuit was ordered, subject to the plaintiff’s exception. The plaintiff, a common laborer, was employed by the defendant, a contractor for moving and taking down buildings and putting in foundations, to do whatever he was directed to do for the time being. Having contracted to take down some wooden buildings, the defendant set the plaintiff and other employees at work upon them.

Assumpsit, to recover the amount of the defendant’s subscription to the stock of the New Hampshire Press Association. Facts found by the court. The defendant subscribed for ten shares of the capital stock of the association, at the par value of fifty dollars per share, amounting to $500, which sum he agreed to pay in quarterly payments at specified times. The subscriptions were solicited by one Towner.

Case, for injuries to the plaintiff’s intestate, John B. Duquette, from an unblocked guard-rail on November 24, 1891, resulting in death on November 26, 1891. Trial by jury.

Motion to Recommit. The petition of the plaintiffs, a provisional corporation, was referred to referees, who have tiled a report. Counsel opposing the petition move a recommittal ot the report for an additional finding.

Assumpsit, on an accident insurance policy. Facts found by the court.

Assumpsit, for the balance of an account remaining after the payment of fifty per cent in compliance with an agreement entered into by the plaintiffs with the defendants and mutually with the defendants’ other creditors, by which the creditors agreed to accept fifty per cent in discharge of their respective claims. Facts found by the court.

<p>Writ oe Entry. Facts found by a referee. Judgment was ordered for tbe defendants, subject to tbe plaintiff’s exception.</p>

Probate Appeal, from a decree of distribution upon the estate of Isaac Stratton. Trial by the court. The parties agreed that the case should be considered as a bill in equity for the construction of the will and codicil thereto of said Stratton. The material parts thereof are as follows: “ Third.

Petition, for abatement of taxes. Pacts agreed. Under the authority of c. 169, Laws 1895, the town of Newport owns and operates water-works constructed and used for extinguishing fires and other public purposes. The town charges, and collects from, those of its inhabitants who use the water, reasonable tolls for the water used by them respectively.

Bill in Equity, by the executor of the will of Samuel IV Southard, for the construction of certain provisions of the will and direction as to the appropriation of the income of funds paid to the town of Haverhill as trustee. Facts agreed.

Bill in Equity, praying for an. injunction. Eacts agreed. At the annual meeting of 1896, the town ©f Canaan voted to discontinue a certain highway that was laid out in 1798 by a committee duly chosen by the town for the purpose. The plaintiffs have occasion to use the highway in common with the public generally.

Bill in Equity, by II. K. Hallett, administrator of the estate of George Earr, and Eliza C. Earr, praying that the defendant he required to convey to the plaintiffs the Oak Hill House. ' Facts found by the court. February 7, 1894, the property, consisting of a hotel and land, subject to incumbrances, belonged to George Farr and the estate of John B. Jarvis, deceased. On that day it was sold at public auction and bought by the defendant, to whom a deed was delivered.

<p>Case, for negligence. The defendants excepted to the denial of their motion for a nonsuit.</p>

Assumpsit, for the sale of liquor in 1887-88, delivered in Boston, Mass., and transported into this state in the unbroken packages in which it left Boston, the plaintiff knowing that the defendant bought the liquor in Boston for the purpose of selling it in this state in violation of the statute. Verdict for the plaintiffs. Defendant excepted.

Petition, for the assessment of damages for the taking of certain water rights. Pacts found by the court. The defendants purchased of the Rochester Aqueduct and Water Company, under the authority of c. 253, Laws 1891, the flowage and drainage rights in question, after the appropriation of the same by the Aqueduct company.

<p>Trespass, with a count in trover, for the plaintiff’s crops, attached in a suit against him by the defendant as a deputy sheriff, the greater part of which were destroyed without the defendant’s fault, and the remainder sold by the defendant on the writ. The crops when attached were growing, and were harvested by the defendant at a reasonable expense, which was more than the value of the portion sold. Judgment having been ordered for the defendant, the plaintiff excepted, and moved to amend by inserting a count in assumpsit.</p>

Assumpsit, upon a promissory note payable to the order of M. V. Hopkins and bearing the following indorsements: “ M. V. Hopkins, J. M. Hopkins. Waiving demand and notice. M. V. Hopkins, J. M. Hopkins.” The plaintiffs are administrators of the estate of Jacob Benton, indorsee of the note.

Case, for slander. The plaintiff excepted to evidence offered by the defendant in mitigation of damages. Verdict for the defendant.

<p>Writ of Entry, to foreclose a mortgage. Facts found by a referee.</p>

Cross-bills in Equity. In the first case the defendant filed an answer and the plaintiff's a special replication. In the second case the defendants, wbo are the plaintiffs in the first, pleaded the pendency of that case in bar, and also filed an answer. The bills, answers, and replication allege numerous facts, nearly all of which are in dispute. Seven questions of law arising upon the pleadings were reserved.

Assumpsit. Facts found by the court. The plaintiff' is the executor of the will of James Bradford, and seeks to recover the amount of a benefit in the defendant association.