Volume 69 — New Hampshire Reports

Appeal, by the defendant, from the sentence of a magistrate upon a complaint for depositing sawdust in Sucker brook, a tributary of Lake Massabesic. Facts agreed. Lake Massabesic is the source of the water supply of the city of Manchester. There are several sawmills on or near the shore of the lake, all oí which deposit sawdust in the water of the lake or of its tributaries. The effect of sawdust on the water is to give it a taste of wood and to discolor it.

<p>A legislative enactment, whether contained in a special act of incorporation or in the general law, that whenever the net receipts from the use of a railroad shall exceed the average of ten per cent per annum on the expenditures of the corporation from the beginning of its operations the excess shall be paid into the treasury of the state, is not unconstitutional.</p> <p>Debt. The declaration is as follows : “In a pica of debt for that the defendants are a corporation organized and existing under and by virtue of the laws of said state to construct and maintain a railroad from the city of Manchester, in our county of Hillsborough, to the state line in Salem, in said county of Rockingham, and it was and is provided in and by their charter, section 5, chapter 549, Laws of 1847, that in any and every year when the net receipts from the use of said road shall exceed the average of ten per cent per annum from the commencement of their operations, the excess shall be paid into the treasury of the state; that in 1849, the defendants constructed their said railroad from said Manchester to the state line, in said Salem, and have maintained their said railroad to the day of the purchase of this writ, and the plaintiff avers that the net receipts received by the defendants from the use of said road have in each and every year since the first day of January, 1867, exceeded an average of ten per cent per annum from the commencement of their operations by a large sum, to wit, the sum of seven hundred and fifty thousand dollars, which said sum the defendants, though hitherto requested, have neglected to pay into the treasury of said state : 'Whereby and by reason whereof an action has accrued to the plaintiff to have and recover of the defendants said sum of seven hundred and fifty thousand dollars.</p> <p>“ Also, for that the defendants are a corporation duly chartered and organized under and by virtue of the laws of said state to construct and “maintain a railroad within said state, and from the first day of January, 1849, to the date of this writ, have owned and maintained a railroad extending from the city of Manchester, in our county of Hillsborough, to the state line in Salem, in said county of Rockingham, and the plaintiff avers that the net receipts received by the defendants from the operation of their said railroad have exceeded the average of ten per cent per annum on its expenditures from the commencement of its operations in each and every year from said first day of January, 1849, to the date of the purchase of this writ by a large amount, to wit, by the sum of seven hundred and fifty thousand dollars, which said sum the defendants, though requested, have neglected to pay into the treasury of the state : Whereby and by reason whereof an action has accrued to the plaintiff to have and recover of the defendant said sum of seven hundred and fifty thousand dollars.”</p>

Bill in Equity, for the construction of the will of John Made.

Trover, by tlie assignee in insolvency of the Laconia Manufacturing Company, for certain machinery. November 18, 1893, the company were engaged in the manufacture of knit goods, and rented of the defendant a part of the mill building which they occupied and a portion of the machinery which they operated. Prior to that date, the company had purchased other machinery lor use in the business and operated it in different rooms of the mill, intermingled with the leased machinery.

Assumpsit, on the promissory note of the defendant, a married woman. Pacts found by the court. The note was signed by her at the request of her husband, who told her he needed the money,. She signed the note to help her husband in his business, and authorized him to secure its discount and dispose of the proceeds. The defendant’s husband applied to the plaintiffs for a loan of $5,000, with sixty shares of the capital stock of the Tilton Hosiery Company as collateral.

Bill in Equity, by Jennie M. Weeks against Edward A. Lund and Edwin P. Thompson, executor of the last will and testament of Horace P. Batchelder.

Petition, for abatement of taxes, alleging that in October, 1898, upon the petition of the bank commissioners, the bank was enjoined from receiving deposits or paying out any money to depositors, except as decreed by the court; that on October 1, 1894, the deposits were cut down by order of the court to the amount of twenty-five per cent of the whole sum due depositors, to wit, in the sum of §38,069.98; and that the petitioners had paid taxes on that sum for that year,…

Assumpsit. Writ dated May 9, 1894. Plea, the statute of limitations. Pacts found by a referee. September 20, 1872, the parties settled the accounts between them, and signed an agreement upon the plaintiff’s account book in the following terms : “ Sept. 20, 1872.

Debt, for money paid for lighting a covered bridge on a highway in Concord. Facts agreed. Prior to the building of the bridge, Bridge street crossed the defendants’ tracks at grade. The bridge was erected by the defendants about 1860 as an overhead railroad crossing, and they have maintained and kept it in repair. Within one half mile from the bridge there are one hundred inhabitants, and it is necessary that the bridge should be lighted.

Case, foi’ willfully and maliciously neglecting and refusing to place the plaintiffs’ names upon the check-list for Ward 3 in Concord. The actions were tried together by the court, and in each of them there was a verdict for the plaintiff.

<p>The statute (Laws 1893, c. 39, s. 1) which authorizes the railroad commissioners to apportion between a railroad and a town the expense incurred in the change of a highway bridge, and does not provide for an appeal from their decision, is not unconstitutional.</p> <p>Debt, for a sum apportioned to the defendants by the railroad commissioners, under Laws 1893, c. 39, s. 1. Facts agreed. The plaintiffs raised a highway bridge in Concord over the Concord & Claremont Railroad, in compliance with an order of the railroad commissioners. Upon petition of the plaintiffs and after hearing the parties, the railroad commissioners apportioned to the defendants $150 of the expense of the change outside the railroad location. The defendants appeared at the hearing and objected to the jurisdiction of the commissioners, claiming that the act of the legislature, so far as it purported to confer authority upon them to determine the rights and liabilities of the defendants, was void, because it is not constitutional and does not provide for an appeal to the court if a party is aggrieved by the commissioners’ decision.</p>

Case, for libel. The declaration alleges, in substance, that the plaintiff is, and for some time has been, an attorney-at-law; that he was practicing his profession and receiving large profits therefrom ; that he was a person of good name, credit, and reputation ; that the defendants, well knowing the premises and intending to injure the plaintiff and bring him into public scandal and disgrace, maliciously published in the newspapers, “ The Daily Mirror and American,” and “…

Trover, for a stock of goods. Trial by jury and verdict for the plaintiff. The defendant excepted to the denial of his motions for nonsuit and direction of a verdict, to instructions given, and to the refusal of the court to give certain instructions requested.

<p>A levying creditor’s conveyance of land with warranty is competent and sufficient evidence of his acceptance of seizin.</p> <p>One in possession of real estate under a bond for a deed is equitably entitled, upon performance of his part of the contract, to a conveyance from one-claiming under a levy on execution against the obligor; but as defendant in a writ of entry, his right to a deed is no defence to the legal title of the-levying creditor or those claiming under him.</p> <p>Writ of Entry. Trial by tbe court and verdict for tbe plaintiffs. May 12,1882, Charles Sanborn owned the demanded premises, and on that day gave the defendant a bond to convey the same to him at any time within three years, upon the payment of §1,500, together with interest thereon, to be paid every three months, and all taxes. By the terms of the bond, the defendant was entitled to take and took immediate possession of the premises, and has ever since remained in possession. lie paid the interest to May 12, 1883, and the taxes, but has paid nothing since. May 28, 1883, T. G. Sanborn caused the premises to be attached on his writ against Charles Sanborn; and having obtained judgment, caused the execution issued thereon to be levied on the premises, December 19, 1884. In April, 1886, he conveyed the same with warranty to George Marston, since deceased, whoso heirs-at-law the plaintiffs are. The officer returned that he delivered seizin to the creditor’s attorney. The defendant objected to the levy because the return does not show that the creditor accepted seizin. The court found that the creditor accepted seizin and overruled the objection, subject to exception. The defendant claimed that the levy was void as against him, but the court ruled otherwise, and he excepted.</p>

Appeal, from the decree of the judge of prohate, adjudging the defendants insolvent. Facts agreed. In 1892, the defendants, Ellis of Manchester and Tirrell of Boston, Massachusetts, bégan business in Manchester as copartners under the name of Ellis & Co. All the business of the firm has been done in Manchester, and they have had elsewhere no partnership property.

Indictment, for knowingly, falsely, and fraudulently issuing a certificate of stock of the Union Publishing Company to R. G. Sullivan, February 1, 1895. The facts are sufficiently stated in the opinion.

Indictment, for fraudulently making a false record of a certain certificate numbered 108 of tbe stock of the Union Publishing Company, which the respondent, as treasurer, issued to J. C. Moore, of Laconia, N. H., November 5,1894, with an intent to defraud. The respondent seasonably filed a motion for a change of venue, alleging that he could not have a fair and impartial trial in this county.

<p>Indictment, for erecting and continuing a bay window upon and over Laurel street in Manchester,.in violation of P. S., c. 77, s. 8. Pacts agreed. The defendant has erected and continued a bay window as charged in the indictment, as a projection from his building upon Laurel street. The window extends four feet and seven inches within the limits of the street, but does not extend downward within eight feet of the ground. Laurel street is a public highway. The question reserved is whether upon these facts the defendant is entitled to the judgment of the jury.</p>

Submission, under P. S., c. 27, s. 18. Facts agreed. The plaintiff was one of the county commissioners and the superin-, tendent of the county farm from 1884 to 1888. In 1889, several articles, supposed to have been written by one George, appeared in the “Boston Herald,” charging the plaintiff with mismanagement of the county almshouse and ill-treatment of the inmates.

<p>Case, for removing the plaintiff’s bars, whereby cattle were admitted to his field and destroyed his crops. Facts found by a referee, who made a general finding for the defendant.</p> <p>The parties own adjoining farms. July 7, 1854, Robert E. Merrill, then the owner of both farms, conveyed to the plaintiff' the farm owned and occupied by him, reserving therein a pass-way described as follows: “ Said Robert E. -Merrill, his heirs .and assigns, has a right at all times to pass and repass on the north side of said Jewell’s house over said land from the highway to the bridge over Berry’s brook.” The passway, as then and afterward used, extended from a point in the highway a few feet from Jewell’s house, over the land conveyed to him, to Merrill’s remaining farm, which, together with the right of way, is now owned by the defendant. After Merrill’s conveyance the passway was staked out by the parties, and there is no controversy about its location at the point of the alleged trespass. About four years prior to the date of his writ, the plaintiff' put up sliding bars across the entrance to the passway from the highway, and has ever since maintained them more or less of the time while his crops were growing. In using the passway, the defendant, her tenants, and her servants were obliged to slide back the bars or otherwise remove them, and they seldom put them up again. There was no evidence tending to show that they were ever taken or left down by the defendant, or by any person for whose conduct she was responsible, except at times when she or they Avere making a proper use of the passAvay. It is of removing them and not replacing them on such occasions that the plaintiff’ complains.</p> <p>The referee found, so far as it is a question of fact, and ruled, so far as it is a question of laAV, that the defendant was entitled under the deeds to an unobstructed passway from the highway to the bridge over Berry brook, and that the bars erected by the plaintiff on the highway at the entrance of the passway Avere an unreasonable and unlawful obstruction thereof. The court ordered judgment on the report for the defendant, and the plaintiff’ excepted.</p>

<p>The wife of one who, at the time he receives title to land, executes a bond to convey it in which she does not join, acquires no interest in the premises as against those claiming under the bond; but her apparent right of dower may be a cloud upon the title, which the vendee is entitled to have-removed.</p>

Coös, Trover, for a stock of goods. Facts found by a referee. The defendant is assignee of J. A. Hodgdon, who was decreed an insolvent in September, 1895. The plaintiffs claim the goods under mortgages dated February 1, 1895, and April 6, 1895, both of which were duly recorded. October 28, 1895, the defendant took possession of the property and has held it ever since, claiming it as assignee.

_ Ltjbel for Divorce, charging adultery. Subject to the plaintiff’s exception, the defendant was permitted to introduce testimony relating to her general reputation for virtue and chastity.

Trover, for articles used in a merry-go-round. Trial by the court. The writ is dated October 10, 1895. July 29, 1895, the plaintiff owned the property and leased it for the term of three months to I). & II., reserving the right to retake the same whenever the payments for its use were not made each week in advance.

Case, for using the plaintiff’s dwelling-house as a small-pox hospital, and confining him to the premises against his will during the prevalence of the disease. Pacts agreed.

Assumpsit, the first case for labor and the second for materials. Facts found by the court. Lavoie worked at brickmaking, at an agreed price per month, from April, 1896, until the latter part of the following September, under a contract with the defendant, who was the owner of the brick.

Bill in Equity, to remove a cloud upon the plaintiff’s title to a parcel of land in Bye, of which the defendant by his answer claims to own an undivided half. Eacts found by a referee. November 13, 1820, one Parsons conveyed the premises in question, with other land, to Amos 8. Parsons by warranty deed.

Bill in Equity, by John W. Stavers against Alfred. Stavers and the Portsmouth Savings Bank, praying that the defendant bank be ordered to surrender for cancellation a deed of certain real estate from Alfred Stavers and wife, and that it be enjoined from conveying the same. The defendants demurred.

Case, for injury to a mill privilege. Facts found by the court. The rise of .tides causes the water to flow back from the Piscataqua river, through a creek, into a depression in the land located in the easterly part of Portsmouth, forming what is known as the South Mill-pond. For over two hundred years a tide-mill has been maintained and operated just below a highway bridge at the foot of the °pond.

<p>Where the purchaser of an equity of redemption at an execution sale has paid the mortgage debt and taken a quitclaim deed of the premises from the mortgagee, the transaction will operate as an assignment of the mortgage if justice .requires it.</p> <p>A mortgagor who, through misapprehension and mistake, has acted upon a belief that the time for redemption had been extended, may be permitted to redeem after a foreclosure when no other rights have intervened.</p>

<p>Information, in the nature of a quo warranto, tiled by the attorney-general against the defendants, who are in possession of the office of water commissioners of the city of Somersworth.</p>

Assumpsit, to recover a balance claimed by the plaintiff to be due on a written contract. Trial by the court. Verdict for the plaintiff

Petition, for tax abatement. Pacts agreed. The plaintiffs are organized under the laws of the state and located at Eochester. April 1, 1896, the monthly payments, or dues paid in by the plaintiffs’ shareholders, amounted to $112,605. The net profits were $19,655. The plaintiffs have loaned their shareholders, on notes secured by mortgages upon the homesteads of the debtors in this state, $125,000.

Assumpsit, for the support of John Dugan. Facts agreed. October 2, 1891, Dugan, then and for some time before commorant in Belknap county, was committed to the state prison for tbe term of three years, to which he was sentenced by the supreme court for that county, and since that time has been a pauper. April 25, 1894, by order of the governor and council, he was transferred from the prison to the asylum as an insane person.

Case, for injuries received by the plaintiff through the alleged negligence of the defendants' employee, one Woodlawn, in loading trunks upon a truck at the steamer landing at Weirs. The plaintiff was in the employ of one Blackstone, master and owner of a steamer plying upon Lake Winnipiseogee, as purser or clerk, express agent, and baggage master. The wharf upon which the baggage was landed was at a distance from the platform where the baggage was loaded upon the cars.

Assumpsit, for belting furnished by virtue of a contract with the defendants for their box factory, then in the course of erection. The plaintiffs claim a lien for the price of the belting ($482.45), under P. S., c. 141, s. 10. The belting was affixed to the machinery in the factory, October 24 to 28, 1894.

<p>Bill in Equity, brought by the assignee in insolvency of John II. Sullivan, to set aside a levy made by the defendant upon Sullivan’s real estate. Facts agreed. September 10,1895, the defendant brought his action against Sullivan and caused the premises to be attached. He recovered judgment November 18, 1895, sued out execution thereon, and November 20, 1895, placed it in the hands of the sheriff’, who on the same day swore in an appraiser. December 7, 1895, Sullivan made a voluntary assignment in insolvency. April 4, 1896, the sheriff notified the plaintiff to appoint an appraiser, and upon his refusal to do so, appointed one for him and completed the levy.</p>

<p>A person does not perform labor or furnish materials for making brick, within the meaning of the statute giving a lien therefor, by furnishing board to the workmen employed in making the brick, under a contract with the manufacturer.</p>

Writ oe Entry. Pacts found by a referee. May 2, 1882, Jonas Poster loaned the defendant $500 upon his promissory note of that date, payable to Poster’s order on demand, with interest annually, and secured by a mortgage of the real estate described in the writ.

Assumpsit, upon a promissory note signed by the defendant, dated January 20, 1872, payable six months after date with annual interest. The writ was dated September 13, 1895. Plea, the statute of limitations. Replication, a new promise within six years. Facts found by a referee. Certain items of credit were indorsed upon the note and an allonge until 1884, when the note was stolen.

Appeal, from a decree of the probate court of Carroll county, allowing the account of the New Hampshire Trust Company, trustee under the will of Isaac Adams. After taking this appeal, the plaintiff* became a party to the proceedings in this county for the liquidation of the affairs of the Trust Company. Facts found by the court.

Foreign Attachment. Issue between the plaintiff and the claimant. The court ordered the trustee discharged, and the plaintiff excepted. Facts found by the court are stated in the opinion.

<p>Assumpsit, against the receiver of the National Bank of the Commonwealth, for money had and received by the bank. On a trial by jury, the defendant’s motions for a nonsuit and for the direction of a verdict in his favor were denied, subject to exception.</p> <p>The cashier of the bank collected of a Minnesota savings bank a sum of money due to the plaintiff and received from her other sums, upon all of which he promised to pay interest at the rate of eight per cent per annum. He gave receipts for the money, one of which bore his signature as cashier, and the others, his signature without addition. He did not credit the money to the plaintiff upon the bank’s books, but credited it to his own account, and subsequently withdrew it and absconded. The evidonee was conflicting on the question whether, in his dealings with the plaintiff, he acted in his private or in his representative capacity. The only evidence of his authority to act for the bank was the fact that he was its cashier.</p>

Bill in Equity, for a foreclosure and sale under a trust deed. Facts found by the court. The American Building, Loan & Investment Society, of which the plaintiff' is receiver, was a foreign corporation and did business in this state. Its capital stock was divided into shares of $100 each, issued in monthly series'. Shareholders were required to pay seventy-five cents per month upon each share subscribed for by them.

Probate Appeal. Facts agreed. The plaintiff’s wife died March 24, 1887, testate. She never had any children. By her will she gave her wearing apparel, ornaments, household furniture, and the sum of $6,000 to sundry persons.

Trover, for a stock of goods. Facts found by a referee. August 15, 1895, Cavanaugh & O’Leary sold and delivered the stock of goods to the plaintiff in settlement of their indebtedness to him. Four days later, the defendant, a deputy sheriff, attached the goods as their property upon a writ in favor of one of their creditors and subsequently sold them.

Trover, for a horse, carriage, sleigh, and harness. Facts found by the court. The property was owned by one Sherwood, but was entrusted to the care of his wife’s son Perley. Sherwood was a debtor of his wife and of the plaintiff.

Assumpsit, upon a guaranty. Trial by jury and verdict for the plaintiff. March 15, 1892, the defendant, as agent of a loan and building company in Minnesota, sold and delivered to the plaintiff the company’s certificate for twenty shares of stock' ($2,000), payable to the plaintiff’ or the legal holder of the certificate, in ten years, with interest according to the coupons attached thereto, upon their presentation and surrender at the company’s office.

Appeal, from a decree of the judge of probate, dismissing the plaintiff’s petition to be appointed administrator de bonis non, with the will annexed, of the_, estate of Ann Haven. Facts found by the court.

Bill in Equity, praying for direction in the execution of a trust.

Bill in Equity, to set aside a sale and conveyance of real estate made under a power contained in a mortgage, and to redeem from the mortgage. Facts found by the court. William P. Burke conveyed the real estate in question to Gooch & Pray, by a mortgage deed dated November 27, 1894, to secure the payment of his promissory note of that date for $7,000.

<p>In an action for injuries resulting from the breaking of a pulley, evidence that a former pulley of the same size, construction, and material, broke while being used in the same place, for the same purpose, and in the same way, is competent to show the cause of the breaking in question and the defendant's knowledge of the defect complained of.</p> <p>Case, for negligence in providing a defective pulley and driving it at an unsafe rate of speed by an unsuitably tight belt, in consequence of which the pulley broke and fatally injured the deceased, an employee of the defendants. Trial by jury. Verdict for the plaintiff.</p> <p>A pulley in the defendants’ mill broke December 23, 1896, and a piece of it struck the deceased, who was attending a spooler near by, and caused injuries from which death resulted. The evidence tended to show that the pulley was put on the shaft December 4, 1896; that it took the place of another of the same size, form of construction, and material, and was used for the same purpose and in the same way. Subject to the defendants’ exception, the plaintiff1 introduced evidence tending to show: (1) That the first pulley broke; (2) that from June or July, 1895, to the time of the injury to the deceased, the belt on these pulleys was tight; (3) that in December, 1895, and subsequently, one of the defendants’ overseers called the attention of the superintendent (who had charge of such matters) to the tightness of the belt and told him it was dangerous,— to which he replied that he didn’t care about the danger, it was production that he wanted; that the same overseer also called the attention of the defendants’ agent and one of their directors to the same matter, aud told him that it was liable to break the shaft or pulley,— to which the director replied that he thought the belt was too tight.</p> <p>It appeared in evidence that the defendants’ servants began to remove the remnants of the broken pulley from the shaft before the deceased was removed from the room. The plaintiff’s counsel, in his closing argument to the jury, said in substance : They [the defendants] were so anxious for production that they took down remnants of the pulley while the girl lay bleeding upon the floor. The defendants excepting, the counsel withdrew the remark and asked the jury to exclude it from consideration, as if it had not been made. At the plaintiff’s request, the jury were instructed to disregard the remark, to which the defendants excepted.</p>

Bill in Equity, Facts found by the court. Zoe A. Flanders died in Í88I, léávitlg a will by which she made the plaintiff her residuary legatee, gave to her son Ransom, for life, the use of a tract of land and in a certain event a weekly sum out of her money in a savings bank, and further provided as follows :: “ After said Ransom’s decease, I direct that said land, of whichi said Ransom has the use, be sold, and the use of the proceeds,, together with the use of the balance…

Bill in Equity, for the construction of the will of Richard N. Ross, of whose estate the plaintiff is administrator, with the will annexed.

. Indictment, charging that the defendant, on the second day of September, 1897, at, etc., “with force and arms, under color and pretence that one Frank E. Fernald had committed an offence against the statutes of this state relating to the sale of spirituous liquors, in this, that the said Frank E. Fernald had before that time, to wit, on the twenty-ninth clay of March, eighteen hundred and ninety-seven, not being an ageut of any town for the purpose of selling spirit, sold…

Complaint, for keeping a shop open on Sunday for the reception of company. The defendant testified that he kept his place open on Sunday afternoon, and a few people were in there; that he sold sandwiches, pies, ice cream, and frankforts, which were eaten in the shop. There were probably a hundred people in the shop that day. ■ The defendant requested the court to charge the jury that all his sales were of the necessaries of life.

Writ or Entry, to foreclose a mortgage. Bill in Equity, by the defendant, praying for an injunction to restrain the plaintiff from prosecuting the action. Facts found by the court. June 12, 1894, tlie defendant, being indebted to the plaintiff in the sum of $2,500, gave her a note of that date for that sum, payable on demand without interest, and a mortgage of the land described in the writ to secure the payment of the note.

Assumpsit, upon an insurance policy on the life of Nellie E. Crockett. Verdict for the plaintiff.

Petition, under P. S., c. 138, s. 14, for the determination of the question of the existence of a homestead right. Facts found by the court. The premises in which the right is claimed do not exceed $500 in value, and when attached were owned and occupied by the defendant. After the attachment they were conveyed to one Sanders, who gave a mortgage back, conditioned to support and maintain the defendant and one Banger during their joint lives and the life of the survivor.

<p>An action upon a promissory note, payable “ on demand with interest after six months,” is not premature if brought within that time.</p> <p>A stipulation in such note giving th.e payees “the right of collecting the whole or any part of this note at their own discretion, or of extending from time to time, by reception of interest in advance or otherwise, the payment of the whole or any part thereof-without affecting our liability to pay the same ” does not bind the sureties thereon to an extension of the time of payment by the principal and payees beyond six years from the date of the note.</p>

Assumpsit. Trial by jury and verdict for the defendant. The day after the verdict was rendered the plaintiff moved to set it aside as against the law and evidence; and two or three days afterward filed a written motion to set it aside on the same ground and also in arrest of judgment and for a new trial,, specifying certain particulars wherein he claimed it was against the law and the evidence.

Prior to 1883, B. L. Larkin, by the plaintiff’s license, placed a box, covered with boards, in a spring on the plaintiff’s land and conducted the water to his adjoining premises. In 1883, he conveyed the premises to another who, in 1892, conveyed them to the defendants. The spring furnished water to the Larkin premises all the time to August, 1894, and afterward.

Assumpsit, upon an order dated March 28, 1893, sent by the ■defendants to the plaintiff's and accepted by them, as follows: 4e Please furnish us as and when wanted by us ten to twelve carloads, or the entire cut for the year, of clapboards of your own make, and to be as good as those we have had of you in the past. The prices delivered on cars at Boston points to be as follows: [naming them].

<p>A parol assignment of an account, accompanied with authority to collect it and apply the avails to the payment of the assignor’s debt to the assignee, is valid without notice to the assignor’s debtor, and takes precedence of a subsequent attachment of the funds in the hands of the debtor by a creditor of the assignor.</p> <p>An assignee who brings suit in the name of the assignor is not estopped • from setting up the assignment by an omission to specify in the writ that he is the plaintiff in interest.</p> <p>Foreign Attachment. Facts found by the court. In November, 1896, the defendant being indebted to Rollins, the claimant, upon a judgment, turned over to him an account amounting to $30 against Davis, the trustee, with authority to collect it and apply the proceeds upon the judgment. In March, 1897, the claimant brought suit against Davis in the name of Garney, without specifying in the writ that he, Rollins, was the plaintiff in interest. Marsh, at 'Davis’ request and after examining the writ, receipted for the property attached and immediately brought the present suit. At that time neither Davis nor Marsh knew of the assignment to Rollins; and if Marsh had known of it he would not have brought suit.</p>

Indictment, against the defendant, under the name Francis Narcarm, for a second offence of illegally keeping malt liquor for sale. Facts agreed. The alleged former conviction was of the defendant under the name Ferrin Narcarm, before a police court. The only record of the conviction was the original complaint and warrant, with minutes indorsed upon the warrant by the clerk of the court, showing that the defendant pleaded guilty and was fined.

Bill in Equity, asking for the construction of the will and codicil of Sarah Thompson, called Countess Rumford, and asking the advice of the court as to the power and duties of the trustees under said will. Facts found by the court. The will and codicil were approved and allowed March 22, 1858. The plaintiffs are a corporation organized as successor to the trustees named in the will, and have all the powers of the original trustees.

Replevin, for articles alleged to be tools of the plaintiffs’ occupation. The plaintiffs are partners, and the defendant is their assignee in insolvency. Subject to exception, the court ruled that the plaintiffs were not entitled to such an exemption.

Indictment, for a second offence of illegally keeping malt liquor for sale. Verdict for the state. The alleged former conviction was before a police court; and the only record of it was the original complaint with minutes indorsed upon it by the clerk of court, showing that the defendant pleaded guilty and was fined. The complaint and minutes were received in evidence, subject to the defendant’s exception.

Case, for negligence. The plaintiffs seek to recover the amount paid upon a judgment obtained against them by Joseph Levesque for the damages sustained by him from the fall of the plaintiffs’ elevator. The plaintiffs allege that the fall of the elevator and Levesque’s consequent injury were caused by the negligence of the Belting Company in repairing the belt by which the elevator was sustained and operated, and that Levesque recovered against them on that ground.

Bill in Equity, in behalf of the plaintiff and all others of like interest, alleging that the plaintiff is the owner oof certificates of deposit issued by the Union Trust Company which are indorsed by the defendants in the manner stated below; that on March 29, 1892, it was agreed between the Trust Company, a corporation organized under the laws of Iowa and doing business in that state, and the defendants, that the Trust Company should issue certificates of deposit to an…

Case. Trial by jury and verdict for the plaintiff. March 30, 1886, the plaintiff, then eight years of age and unable to speak or understand English, was injured by the machinery in operation in the defendants’ mill. The evidence tended to show that the plaintiff’s brother, who was thirteen years of age, was employed as a back-boy in the mule-spinning room, and that at his request the plaintiff went into the room for the purpose of learning the work of a back-bov.

<p>Where a building is erected for the purpose of annoying the owner or occupant of adjoining premises, he cannot maintain an action therefor, under P. S., c. 143, s. 29.</p> <p>Case, for building and maintaining a structure in the nature of a fence for the purpose of annoying the plaintiff. Verdict for the plaintiff. The structure complained of is a building thirty-two feet long by ten feet wide, and next to the plaintiff’s land fifteen feet high and on the opposite side nine feet high, having a roof sloping from the higher to the lower side. It is entirely upon the defendant’s land, but obstructs the view and shuts out the sunlight from the plaintiff’s house. It is not clapboarded or painted. It has a door (opposite the plaintiff’s house) and a floor, and is used by the defendant for the storage of a sleigh and other articles. There was evidence tending to show that it was erected for the sole purpose of annoying the plaintiff. Subject to the defendant’s exception, his motion for a nonsuit was denied.</p>

Case, for personal injuries resulting from the fall of a staging at the Sacred Heart Hospital, in Manchester, occasioned by the breaking of an unsound and decayed bracket. Verdict for the ¡plaintiff. The plaintiff is a carpenter of many years’ experience and fully understood all the duties and risks incident to that employment, one of which is the putting up of wall brackets to support the staging on which he is to work.

<p>Construction given to certain deeds conveying flowage rights.</p> <p>In the interpretation of written instruments relative words ai-e generally to be referred to the next antecedent; but if the subject-matter or the obvious intent of the parties requires a different construction, such reference maybe made as will effectuate the intent.</p>

<p>A railroad company is not liable for injuries to a freight brakoman by an overhead bridge, on the ground of negligence in failing to maintain a bridge guard, when it appears that the plaintiff was performing in the ordinary way a service with which he was familiar, was aware of the existence and dangerous character of the bridge, and would have learned of the absence of a guard by the exercise of ordinary care.</p>

Petition, under chapter 27, Laws 1895, for a determination of the question whether the public good requires the building of an extension of the petitioner’s railway in Nashua from its present terminus on Main street, southerly on that street and the Lowell road to the Massachusetts line.

.Appeal, by a landowner, from the laying out of a highway. The petition alleges that the plaintiff is aggrieved by the laying out and by the assessment of damages, and prays that the laying out may be reversed, or, in default thereof, that just damages may be awarded to her. The defendants’ answer admits the substantial allegations of the petition, alleges that the public good does not require the highway, and' prays that the laying out may be reversed.

<p>■ Case, for negligence resulting in the death of the plaintiff’s intestate, John Clifford, March 26, 1889. The defendants claimed that the action was not seasonably brought under Laws 1887, c. 71, ss. 2, 3, and excepted to the ruling of the court against their claim.</p> <p>The plaintiff offered evidence that Clifford, a freight brakeman in the defendants’ employ, was struck by an overhead archway at the north end of the freight house at Manchester and injured so that he died the same night. He had been employed as night brakeman in the yard at Manchester for thirteen days before the accident, working from 8 p. m. to 3 a. m. He had previously been employed as a brakeman in the yard at Nashua, and stated when employed at Manchester that he was an experienced railroad man.</p> <p>The freight house was 300 feet in length. There were two parallel tracks passing through it north and south and extending northerly of it 202 feet. At each end there was an archway over the two tracks. The top of the archway was formed by a semi-circular brick arch with a radius of twelve feet. Across the extreme upper portion of this arch was a horizontal door slide, the lower edge of which was seventeen and a half feet above the rail. From the west side of a freight car upon the west track, under the north arch, to the west pier of the arch, was 3X2^- feet. The foot of the arch was 7X6T?0- feet above the rail. From the top of the rail to a point in the arch over the middle of the ladder on a car was 16^j- feet; between the same points over the west side of the ladder was 15-^- feet. The width of the arch at the foot was 24-^ feet. Freight cars vary in height from ton to fifteen feet. The average are twelve and a half feet in height. The lighting of the freight house was poor.</p> <p>Clifford was seen climbing the ladder on the west side of the north end of a car of average height which was being drawn toward the south on the west track. He was nearly under the arch when seen, and had about half his body above the car when he was struck by the arch and killed. . The work of the crew with which he was employed was the necessary shifting of ears into and through the freight house where they were unloaded. There was evidence that the east or front track was used for unloading cars in the night-time; that while cars were sometimes shoved on the east track north of the freight house, there was no occasion for a brakeman to go to such cars ; that brakemen as a rule did not go on top of cars there; that about all the use made of the back or west track in the freight house was to throw cars in there to get rid of them; that they would not have cars enough to use the back track more than once a week; that as a rule there wmuld be no cars on the back track, and when that track was filled, as a rule no cars would be north of the arch; that at the time of the accident, in the ordinary course of business Clifford might have had occasion to get on top of cars north of the arch on the back track two or three times in his fortnight’s work, and might not have been there at all; that the shifting crew were inside the freight house from ten to twenty times in a night.</p> <p>One Coty, who was in charge of the crew in which Clifford worked, was called as a witness for the defendants. He testified that he told Clifford, relative to the arch, “ to look out for himself in going through there on big, high cars,— on common cars he would be-all right,” and that was all he told him; that Clifford replied that would be all right and that he would look out.</p> <p>At the close of the plaintiff’s evidence a motion for a nonsuit was denied, and at the close of all the evidence a motion that a verdict be ordered for the defendants .was also denied. The • defendants excepted to the denial of each motion. The question submitted to the jury was whether Clifford knew or ought to have known the situation of the arch. There was a verdict for the plaintiff.</p>

<p>In an action against a railroad company for injuries to a freight brakeman by reason of a defective bridge guard, it is incumbent 'upon the plaintiff to present evidence from which the existence of the defect alleged and the fact that it was the cause of the injury complained of may properly and reasonably be found.</p> <p>If upon all the evidence it is clear that reasonable men cannot differ in the conclusion that the questions at issue are undetermined, the finding must be against the party sustaining the burden of proof.</p> <p>An action for negligence cannot be maintained when the evidence fails to disclose an open, visible connection between the injury and the negligence alleged, and when the facts proved are equally consistent with a theory of the accident that would discharge the defendants as with one that would charge them.</p>

<p>The laying out of a highway by selectmen is yacated by an appeal; and during the pendency thereof, one who travels the way is liable to the landowner in an action of trespass.</p> <p>Trespass, guare clausum. Facts found by a referee. The defendant petitioned for a highway which was laid out by the selectmen over lands of the plaintiffs. From the laying out each plaintiff' appealed. The trespass complained of in each ease consisted in opening and traveling the way during the pendency of the appeal which, at the hearing before the county commissioners, was abandoned. The court ordered judgment on the report for the plaintiffs, and the defendant excepted.</p>

Assumpsit. Facts agreed. Daniel P. Kingsley of Springfield, Hampden county, Massachusetts, died October 23, 1886, leaving a will which was duly proved in that county, and by which he gave to the executor a portion of his estate in trust, to be paid under certain circumstances to his legal heirs.

Bill in Equity, by an executor, for instruction. The will, eliminating words immaterial to the question, is as follows : I give to my two grandchildren, Mary A. Stearns and Linn E. Drummer, the income of $2,000 each for life. “ In case of the death of either of them the same income is to go to their children, unless they leave a widow, in which case she shall hold the same while she remains his widow, but if they leave no widow or children, the remaining grandchild is to…

Case, for attaching and detaining certain goods as the property of one Yeaton. Facts found by the court. The plaintiffs are dealers in funeral supplies in Boston. They claimed title to the goods under a written memorandum, dated April 17,1896, signed by them and one Yeaton, providing in substance that the title to the goods attached which were furnished him by them should not pass to Yeaton until fully paid for.

Trespass, quare clausum. Facts found by a referee in part and agreed in part. The plaintiffs claimed title to two wild lots numbered 33 in ranges 18 and 19 in Bethlehem, under deeds of the collector of taxes of that town for the years 1850, 1851, 1852, and 1853, to their grantor. In each of the years 1850, 1851, and 1852, the town voted “to raise a sum equal to valuation ” for the repair of highways and bridges.

Assumpsit, by an administrator, to recover upon promissory notes payable to his intestate. Trial before a referee. The administrator did not elect to testify to any facts occurring in the lifetime of the deceased. Subject to the defendant’s exception, the defendant was called as a witness by the administrator and compelled so to testify.

Assumpsit, for materials furnished and labor performed in erecting a house in Bethlehem, Grafton county, under a contract with the defendant, who was the owner. Pacts agreed. The writ contained a command to attach the house and the lot of land on which it stands, particularly describing the lot,, in order to secure the plaintiff’s lien for the debt set forth in the declaration. The plaintiff resides in this county, and the defendant in Rhode Island.

Assumpsit, for the amount of a legacy. Facts agreed. Ebenezer Hoyt died April 5,1895, leaving a will by which he devised to his son, James E. Hoyt, one of the defendants, his homestead farm, valued at §1,500, charged with the suitable support of his mother, on condition that he should not sell or dispose of the same until he arrived at the age of fifty years, and an undivided half interest in two other lots of land, both valued at $16.50”.

Assumpsit. The declaration alleged, in substance, that the-defendants, as insurance agents, had insured the plaintiff’s buildings in the Manchester Fire Insurance Company until February 1, 1897; that on January 23, 1897, they notified him that they would renew the policy and insure his buildings for a further term of. one year from February 1, 1897, in the sum of $500,. unless notified to the contrary by him; that he, relying on the promise to insure unless notified to the…

Probate Appeal. Deborah T. H. Seavey died October 10, 1895, without issue. Her will made.no mention of or provision for her husband, Jonathan T. Seavey. He died October 16, 1896, without having made any opposition to her will and without assertion of any claim to any portion of her estate. The probate court decreed one half of her personal estate to Arthur J. Seavey, as executor of Jonathan T. Seavey. The court, subject to exception, dismissed the appeal of Justin G-.

Petition, for the abatement of taxes assessed to the plaintiffs in 1897 upon a stock of groceries and food supplies of the value of $500. Facts agreed.

<p>It is no defence to an action for injuries caused by the escape of gas from a defective pipe, that the owners were not notified of its condition.</p> <p>In such case the liability of the owners is not dependent upon their knowledge of the defect, but upon their observance of care in maintaining the pipe in a reasonably safe condition and so using it as not unnecessarily to injure others.</p> <p>A florist whose plants have been injured by escaping gas is not entitled to recover special damages for injury to his business reputation resulting from sales of plants which were thought to be unaffected, but proved to '¡be unsound. •</p>

Assumpsit. Pacts agreed. In 1894, the defendants, being in failing circumstances, offered in settlement eighty per cent of their indebtedness, payable in notes upon two, four, six, and eight months’ time, and represented that they would be able to pay the notes as they became due. All their creditors agreed to this arrangement, and, as a part of the settlement, some of them having attachments upon the debtors’ property released the same.

<p>Appeal, from the decision of the police court of the city of Concord, imposing a fine of five dollars and costs upon the defendant for the violation of an ordinance of the city duly and legally adopted.</p> <p>The ordinance was as follows: “ The tenant or occupant, or, if there be no tenant, the owner of any building or lot of land bordering on any street where there is a sidewalk, shall cause all snow to be removed from the sidewalk adjoining his aforesaid premises within six hours after the snow shall have ceased to fall, if in the daytime, or before two of the clock in the afternoon next succeeding, if the snow shall have ceased to fall in the night-time.”</p> <p>The defendant admits that he has not complied with the ordinance, and his only defence is that the ordinance is invalid. The charter and ordinances of the city may be referred to.</p>

Bill in Equity, by taxpayers of the town of Warner, praying that the defendant Flanders be enjoined from collecting of the-town the expenses incurred by him as its agent to enforce the-liquor laws therein, and that the other defendants, as selectmen and treasurer of the town, be restrained from paying the same.

Case, for personal injury. Trial by jury. At the close of the evidence for the plaintiff, upon motion of the defendants, the court directed a verdict to be returned for them, to which the plaintiff excepted.

<p>When stock of an insurance company organized under the laws of and doing business in this state is in the possession of an administrator, the tax thereon is to be apportioned between the state and the town in which such administrator resides; and such town is entitled to a share of the tax upon stock of railroad corporations in this state so held, if the selectmen have taken an invoice of the stock and transmitted to the state treasurer a statement thereof, as required by P. S., c. 57, s. 2.</p> <p>An apportionment of the railroad and insurance taxes by the state treasurer is a judicial act which cannot be collaterally attacked; but a party aggrieved by his decision may have relief by a writ of certiorari.</p>

Is Equity. The first suit is a bill praying that a certain mortgage, dated April 2, 1883, securing a note for $1,000 payable on demand, with interest annually, to Horace Childs, be declared null aud void, and alleging a tender of the amount due. The second suit is a bill to foreclose a mortgage of the same premises, dated March 31, 1870, running from James Fellows to Stevens Fellows.

<p>Where injury is occasioned to an adjoining estate by a change of the grade of a highway, the owner’s right of action is complete when' such change is made, and is not affected by his conveyance of the' premises prior to the filing of a petition for the assessment of damages.</p> <p>Petition, under P. S., c. 73, ss. 24, 25, for the assessment of damages caused by a change of the grade of a highway. Facts found by the court. The plaintiff owned the premises at the time the grade was changed, but conveyed them without reservation to a third party before the petition was filed. The court referred the petition to the county commissioners, and the defendants excepted.</p>

<p>Petition, against Davis as landlord and Bailey as tenant, for the abatement of a liquor nuisance.</p>

<p>A trader who has a permanent business within this state, a part of which is carried on temporarily in a place other than its usual location, is not an itinerant vendor within the meaning of c. 46, Laws 1897.</p> <p>Indictment, for selling merchandise as an itinerant vendor, without a license. Plea, not guilty. Facts agreed.</p> <p>The respondent is a member of the firm of Kimball, Corser & Powell, doing business and taxed in Concord, where all the partners reside. In September, 1897, the respondent, acting for the firm, carried a portion of the partnership goods to Warner, and sold some of them during the two days of the Grange fair.</p>

<p>Case, for injuries alleged to have been sustained by the plaintiff while crossing the defendants’ tracks on Yine street in Nashua, by reason of the negligent management of the defendants’ trains, and the failure to give proper warning of their approach. Trial by jury and verdict for the plaintiff. At the close of the plaintiff’s evidence the defendants’ motion for a nonsuit was denied, subject to exception.</p>

Case, for personal injuries in being run over by the defendants’ engine, September 24,1895, and losing the right leg. Trial', by jury and verdict for the plaintiff. The defendants seasonably moved for a nonsuit, that a verdict be directed in their favor,, and that the verdict against them be set aside. The motions were denied, subject to exceptions. The opinion sufficiently states the facts.

Petition, for abatement of taxes for 1896, filed February 1, 1897,— the taxes having been paid by the plaintiff under protest. Trial by the court. The plaintiff is a farmer, and has been a wood and lumber dealer in Mason for several years. On the first day of April, 1896, he had $1,800 worth of lumber on hand in Mason, for which the selectmen taxed him at its full value.

Replevin, for a horse. Trial by the court. The plaintiff’s evidence tended to show that he delivered the horse to the defendant Herman, May 28, 1895, under an oral agreement made prior to May 1, by which Herman was to keep the horse a year for the use of it. Herman used it awhile and then caused it to be pastured, and afterward to be kept by the defendant Charles. The defendants claimed a lien upon the horse for its keeping.

<p>A railroad company is not required to anticipate the presence of chance or casual trespassers upon its tracks and take precautions for their safety.</p>

Trover, for a horse. Trial by jury and verdict for the plaintiff. In May, 1896, the defendants entered into a contract with William P. Burke for the sale of a horse to him for his son Octave, for the sum of $2,500, payable in brick at five dollars per thousand, to be delivered on the defendants’ order upon the cars at Epping.

Appeal, from a decree of the probate court approving and allowing the will of Jeremiah White, on the grounds (1) that the testator was not of sound mind when he executed the will, and (2) that he was induced to execute the same by undue influence, over-persuasion, and artful misrepresentation on the part of his wife, Ann M. White, her children, and others interested therein. Trial by jury. The testator died at Nashua, July 22, 1892, at the age of seventy-one years.

<p>The assignee of an insolvent debtor is not chargeable as trustee of the insolvent, in a suit brought by a non-resident creditor upon a claim arising prior to the debtor’s insolvency, for an allowance made the debtor by the judge of probate for the support of himself and family.</p> <p>Foreign Attachment. Issue between the plaintiff and trustee. George A. "Wagner, the trustee, is assignee of John O’Brien & Co., who are in insolvency under a decree dated January 21, ’ 1896. The trustee discloses in his hands $48, an allowance decreed for the support of John O’Brien and his family, made in June, 1897, under s. 28, c. 201, P. 8. The plaintiff resides out of the state and has not proved his claim in the insolvency proceedings. The court ruled that the trustee was not chargeable, and the plaintiff excepted.</p>

<p>An action cannot be maintained against a town for neglect to keep guide-boards in suitable repair, under P. S., c. 78, s. 2, unless notice of an intention to bring such suit has been given, as required by P. S., c. 257, a. 7.</p>

Bill in Equity, for instructions, by the executor of the will of James Ryan. Facts agreed. The second provision of the will is as follows : “ All the residue and remainder of my estate that may remain at my decease, both real and personal, I will in trust to my said executor hereinafter mentioned, to be disposed of by him in the following manner : First, to pay all necessary funeral charges and expenses of services connected therewith.

Trover. Facts agreed. March 3, 1896, Samantha L. Abbott died, leaving a will in which her husband, Peltiah T. Abbott, was named as executor and residuary legatee. April 21, 1896, Peltiah was appointed executor and gave bond to pay debts and legacies. A part of Samantha’s estate consisted of two horses, which were attached April 16, 1896, by the plaintiff, as deputy sheriff, in a suit against Peltiah.

The plaintiff in his count in equity alleges that he has title to,, and ought to be in peaceable possession of, the premises described in his first count, which are enclosed and surrounded on all sides by lands of the defendants and occupied by them, the-lands so occupied being known as Corbin park; and that the park is enclosed by a fence about ten feet high erected and maintained by tbe defendants.

Foreign Attachment. Issue between plaintiffs and claimant. There are three suits. Process was served on the trustee J uly 29, August 13, and August 30, 1896, in the respective suits. Facts found by a referee.

Assumpsit, to recover for the support of one Harry Frizzell, alleged to be a pauper. The plaintiff expended $462.03 for the; support of Frizzell between December 16, 1896, and February 15, 1897. The amounts so expended were reasonable and necessary. Forty dollars of this amount was incurred befoie December 22, 1896. The alleged pauper was a minor residing in.

Bill in Equity, praying for direction in the execution of a trust. Facts found by the court.

Assumpsit, to recover dividends declared between August 13, 1878, and the date of the writ, December 24, 1897, upon four shares of the defendants’ capital stock. Pleas, the general issue and the statute of. limitations.

Bill in Equity, to remove a cloud from the title to certain real estate which the plaintiffs claim to own. Facts found by a referee.

<p>Bill in Equity, for partition. The facts are stated in the opinion.</p>

Bill in Equity, by the assignee of Ballou & Page, to set aside •deeds purporting to convey a homestead from Ballou to the ■defendant, his wife, through a third person. Facts found by the court. The deeds were without consideration, and were executed and delivered to the defendant on July 29, 1895, at which time Ballou’s assets and the assets of the firm, aside from the homestead, were of a value barely equal to the amount of his and the firm’s indebtedness.

Bill in Equity, for instructions, brought by trustees under the wills of Eliza Wentworth Haven, Charlotte Maria Haven, .and Eliza Appleton Haven. Eacts found by the court.

Assumpsit, for lumber sold. Trial by jury and verdict for the plaintiff. The defendant read in evidence a letter from the plaintiff, but was not allowed to read a postscript to it because the court found it contained an offer of compromise, and the defendant excepted.

Writ oe Entry. Facts agreed. David F. Moore died testate in 1888, leaving a homestead place in Laconia, and, surviving him, a widow and four children, of whom the plaintiff and the defendant Joseph C. are two.

Assumpsit, on a joint and several promissory note payable to the plaintiff’s intestate and signed by the defendants, who are husband and wife. The husband was defaulted, and the wife defended on the ground that the note was in fact-the husband’s and she was surety for him. Upon a trial by jury the husband’s testimony, offered by the wife, was excluded subject to exceptions. There was a verdict for the plaintiff.

<p>Tlie agent of a company having a permanent place of business in this state, who goes about from town to town soliciting-orders and subsequently delivering goods, is not a hawker or peddler within the meaning of c. 76, Laws. 1897.</p> <p>Indictment, under c. 76, Laws 1897, for exposing for sale and selling tea, coffee, and spices without a license. Facts found by the court. The defendant resides in Laconia and has not taken out a license. He was employed by the Grand Hnion Tea Company of Brooklyn, New York, to go from place to place in this county with a team, selling at retail their goods, consisting of teas, coffee, spices, and other groceries. He furnished the horse used in the business, and the company furnished the wagon. He solicited orders one week, and delivered the goods the next week. In the meantime he procured the goods of the company from a stock kept by them at a branch store in Concord. He was paid for his services by a commission upon his sales. He carried no goods except those which had been previously ordered by his customers. The question raised is whether sales made in this way constitute an offence under the statute.</p>

<p>The employment by an impecunious husband of labor to be performed on premises owned by his wife, and her knowledge of the work and superintendence of a portion of it, do not, as matter of law, create an agency on the part of the husband, or establish a ratification by the wife,</p> <p>Assumpsit,- for labor. Facts found by a referee. The plaintiff made the contract for his services with J. L. Rollins, the defendant’s husband. The defendant is the owner of the property, consisting of a farm, buildings, and stock upon the same, upon which the labor of the plaintiff was expended. J. L. Rollins has no property in his own right. The defendant never specially authorized the hiring of the plaintiff, but she knew he was working upon the premises and gave directions to him concerning a part of the carpentry which he did. Subject to exception, judgment for the defendant was ordered on the report.</p>

Trover. Pacts found by the court. The plaintiff, at Ells-worth, Maine, sold and delivered to one Bicker, of Conway, in this county, three carriages, and in part payment therefor received from him time notes in which it was agreed that the carriages were to remain the plaintiff’s property until the notes and. interest thereon were paid. , The notes and the agreement were recorded in Conway, but were not recorded in Ellsworth.

<p>Jurisdiction of claims against an insolvent debtor, acquired by the probate court upon institution of insolvency proceedings, is not affected by a subsequent assignment to a non-resident; and a discharge of the debtor applies to all claims of which the court had jurisdiction at the time such proceedings were begun.</p> <p>Assumpsit, in the first action upon a promissory note, payable to Quint and by him indorsed to Hobson, and in the second action for items of account originally due to Hobson. Pacts found by the court.</p> <p>Quint filed a petition as an insolvent debtor in March, 1895, and Hobson had due notice of the proceedings. October 17 or 18, Hobson for a valuable consideration assigned and delivered tbe note and account to Perkins, who had no knowledge of the insolvency proceedings.' October 32, Quint filed a composition agreement and entitled himself to a discharge, which was granted November 15. Hobson and Quint reside in this state, and Perkins in the state of Maine.</p>

Case, for negligence. The defendants pleaded (1) the general issue and (2) a former judgment rendered in a suit between, the parties for the same cause of action. Replication to the second plea, that the former judgment was not rendered upon a trial on the merits involved in that suit, but was a judgment upon a non-suit. Pacts found at the trial term. The present suit is for the same cause of action as the suit between the same parties tried at the October term, 1896.

<p>The findings of a referee that lands in controversy were included in duly recorded deeds, under which the defendant occupied for more than twenty years prior to an action for trespass against him, and that he had been, in open, visible, notorious, exclusive, and adverse possession of the premises for more than twenty years prior to such action, establish a title by deed and by prescription.</p> <p>Trespass, quare clausum. The acts which the -plaintiff claims constitute the trespass to his land were the construction and occupation by the defendant of a building thereon, called the carriage house, and the dumping of dirt and sand around it. Pacts-found by a referee. Both parties move for judgment.</p>

Assumpsit, upon a fire insurance policy dated June 10, 1895, issued to “ Uriel Rollins’ Estate.” The descriptive part of the policy is as follows : “ $1,000 on tbeir 1-J-story frame dwelling-house and ell; $800 on their frame harn connected; $200 on household furniture, beds and bedding, pictures and frames, crockery and glassware, silver and plated ware, provisions, wearing apparel of family, and fuel therein.

Assumpsit, to recover taxes assessed'against the defendants for the years 1896 and 1897, upon certain real estate. Facts found by the court.

Replevin, for a lot of underwear. Pacts found by the court. One Crapo, a retail dry-goods dealer in Concord, who had previously purchased goods of the plaintiffs for which he had not paid promptly, wrote them, August 16, 1894, as follows: “ Was your experience with me last fall sufficient, or do you care to sell me again this season ? I can safely promise you that our dealings, if you wish to continue them, will be more satisfactory than last season.

Assumpsit, for goods sold and delivered. Set-off, for labor and materials furnished. The plaintiffs were organized under the general laws of Massachusetts in 1895, as a corporation located in Boston, with a capital of'$10,000, for the purpose of manufacturing and dealing in plumbers’ materials and supplies, and acquiring patent rights and real estate as they might desire for the business. Theodore A. Peart, Fred II.

<p>In an action of trespass for wrongfully piling wood upon land of another, the liability of the defendant is not established by proof that he was the owner of the wood, and paid the purchase price therefor with knowl- . edge of its situation.</p> <p>Trespass, guare clausum. . Pacts found by the court. The defendant bought wood of one Mitchell, to' be delivered on the cars at Bradford, for which he was to pay one dollar a cord when it was cut, one dollar when it was drawn out on the plains, and one dollar when it was loaded on the cars. Mitchell drew the wood across the plaintiff's land and yarded it there instead of the place mentioned in the contract. The defendant, knowing the wood was on the plaintiff’s land, advanced money to Mitchell in addition to that then due him. The plaintiff, being uncertain who owned the wood or was responsible for the trespasses upon his land, placed two writs — one against Mitchell and the other'against the defendant — in the hands of a sheriff, with the instruction not to serve the one against the defendant unless he claimed to own the wood. The defendant, being informed by the sheriff that he had the writs and asked who owned the wood, replied that it was his; whereupon the sheriff made service of the writ against him (the one in this action) and made no service of the other. Some of the wood was then on the plaintiff’s land, as the defendant knew, but has since been drawn away and delivered to the defendant according to the contract. The defendant did not authorize or direct the en.try upon, or the use of, the plaintiff’s land by Mitchell, and is not guilty unless, upon the facts stated, he is responsible for Mitchell’s acts as a matter of law. The court ruled that the defendant was not liable, and the plaintiff excepted.</p>

Appeal, by George W. Ela, from a decree of the probate court-on the settlement of his account as administrator of the ‘estate of Joseph Ela. Facts found by a referee. Joseph Ela died intestate in 1861, and in 1868 administration on his estate was taken out by George W. Ela in Merrimack county. In 1891, he was cited to settle his account as administrator, and upon this citation a decree was made by the probate court in August, 1892, from which he appealed.

Bill in Equity, to compel the defendants to deliver to the plaintiffs certain property of the Advent Christian Church of Concord. Pacts found by the court. Held: at which only persons who had signed the articles of incorporation were permitted to take part, by-laws-were adopted, and officers elected. At this meeting the acting pastor was elected a member of the new corporation, made chairman of the meeting, and chosen as pastor.

<p>Assumpsit. The facts which were found by a referee appear in the opinion.</p>

Assumpsit. Pacts found by a referee. July 1, 1893, one Bradley executed to the defendants a lease of a tract of land in Concord for the term of five years, with a right of renewal at the expiration of the term. Upon a part of this tract a building or mill for polishing granite had been erected and was owned by the State Capital Polishing Works.

<p>Writ of Entry, for land in Pittsfield. Plea, nul disseisin. Pacts found by the court. The plaintiff introduced a deed of the demanded premises to herself from Ellen J. Roberts, dated August 29, 1892, and, subject to the defendants’ exception, an office copy of an unacknowledged deed from Andrew L. Roberts to Ellen, dated January 16, 1874. The stated ground of the exception was that the deed was without acknowledgment. The transfer of the title, to Andrew from Moses E. Dow was proved by a recorded deed, dated May 2, 1859. Dow’s title was admitted, except as affected by the mortgages hereinafter mentioned.</p> <p>The defendants are the children of Timothy S. and Clara L. Matthews, and claim title by prescription and under two duly recorded mortgage deeds from said Dow to Tobias Roberts, dated December 7, 1857, and January 20, 1859. The only evidence in support of the claim under the mortgages was the production of office copies and the testimony of the defendant Alice P. Rice, as follows : “ I saw a mortgage, Tobias Roberts to my father, handed to my mother by him. He said, ‘ Mother, keep this mortgage; you may never want it, but keep it; this is the only direct title we have to this place,— the only title we have.’ ” She further testified that this occurred when her father was on his death-bed, that she saw the mortgage in his desk after his death, and had seen her mother searching for it later without finding it. The witness was eleven years old, and her sister Mary, the other defendant, nine years old, when their father died.</p> <p>From about the time of the conveyance of Dow to Andrew, the premises were occupied by Timothy and his family until his death in 1876, and after that by his widow and children until the widow’s death in 1896. There was no evidence of a claim of title or right of possession as against Clara or any one, by either of the children, until after Clara’s death. The premises were taxed to Timothy from 1859 until his death, and subsequently to his heirs, except in 1890, when they were taxed to Andrew. Clara refused to pay the tax of that year until it was made out to Timothy’s heirs. Andrew died in 1892. Timothy or Clara have paid the taxes, and there was no evidence of any interference with their possession until the bringing of this suit.</p> <p>Andrew lived in New York, and bought the premises through the agency of his brother Frank, for the purpose of providing a home for Clara, his sister. Subject to the defendants’ exception, Lizzie 0. Sargent testified that immediately after the deed was made Frank said to Clara, “ You have got a good home as long as you live, by paying taxes and insurance and keeping the house in repair.”</p> <p>The plaintiff also put in evidence, subject to exception, entries upon a policy register kept by one Berry, an insurance agent in Pittsfield, now deceased, tending to show the issuance of policies upon the buildings on the premises and the household furniture therein, in which the insured were Andrew and Clara. The entries were in the years 1883, 1885, 1887, 1889, and 1891. There were also entries in the handwriting of the witness who produced the register, showing the issuance of a like policy in 1893 to Andrew’s estate and Clara; a policy on the buildings only to Lydia J. Roberts in 1894; one on buildings and furniture to Clara in 1895 ; and a like policy to Clara’s heirs in 1896. It appeared that Clara attended to the insurance on the property.</p> <p>The consideration of the conveyance from Dow to Andrew was stated in the deed as $675, and this was the sum furnished by Andrew. As tending to show it was not the full consideration, the defendants offered the inventory of the estate of Moses Dow, father of Moses E. Dow", made in 1854, showing that the premises were appraised at $1,000. The evidence was excluded, and the defendants excepted.</p> <p>The court found that the occupation of Clara and Timothy Matthews was not adverse to that of the plaintiff and her grantors, and that the plaintiff was entitled to judgment.</p>

Trover, for railway ties. The plaintiff made a contract with D. & E., whereby he was to cut the ties from timber standing upon their land, and pay them for the ties and for drawing to the railroad, all that he should receive for them over ten cents each. Under the contract the plaintiff employed and paid choppers whs cut the ties, which D. & E. drew out and piled on land of the railroad.

The plaintiffs received one thousand dollars insurance on the property burned. The defendants excepted to the refusal to instruct the jury that the amount of the insurance was to be deducted from the total loss in the assessment of damages.

Probate Appeal, from the disallowance, in insolvency proceedings, of the plaintiffs’ claim against the individual estate of C. C. Shaw. Facts found by the court. C. C. Shaw and C. B. Whittemore, partners under the firm name of Shaw & Whittemore, were decreed insolvent debtors. The plaintiffs held four notes signed by Shaw alone, one signed by Shaw & Whittemore and C. C. Shaw, and two signed by C. C. Shaw and C. B. Whittemore, the last three being joint and several.

Case, for negligently poisoning the plaintiff’s -horse. Trial by the court. The expense of caring for the horse while it was sick and of no use to the plaintiff was $14.50. The horse died, and it will cost the plaintiff $35 to replace it by another equally serviceable, although he could not have sold his hoTse in the market which his neighborhood afforded for more than $20. There was judgment for the plaintiff for $49.50, and the defendant excepted.

Petition, alleging that the Security Trust Company was a-corporation lately doing business in Nashua, in this county, and in the state of North Dakota; that while engaged in business it would take notes secured by mortgages on real estate running to itself and negotiate the same to such parties as might desire-to buy; that Anna Slack gave her promissory note to the company for $3,500, and executed and delivered to the- company her mortgage covering 480 acres of land situated…

The first case is a bill in equity brought by George E. Kim-ball, J. E. Rider, and W. H. Rider against the Grate Company, H. 8.

Probate Appeals from the decision of the commissioner allowing the claims of the plaintiffs against the estate of the testatrix, Martha J. Emery. The executor duly notified the plaintiffs óf his appeals, and they were entered in good faith at the trial term. Counsel for the plaintiffs were ignorant of the provision that the creditor should file his declaration, and for this reason failed to do so within thirty days after notice of the appeals.

Willard v. Sullivan. Assumpsit, to recover upon a special promise by the owner to pay the past and future bills of a sub-contractor. Facts found by the court. One Beaudry, the principal contractor, was asked -what the final result of his contract with the owner was,— whether the house cost more or less than the contract price. The plaintiff objected on the ground that it was immaterial.

Assumpsit, for services. Pacts found by the court. The plaintiff was the city engineer of Nashua for the years 1893, 1894, and 1895.

Case, for negligence. Trial by jury and verdict for the defendants. The plaintiff’s intestate, an employee of the defendants, was at work'upon a staging suspended from iron hooks placed on the roof of a building, when one of them broke, allowing the staging to fall and causing the death of the intestate.

Petition, alleging that on July 19, 1897, the defendant Henry C. Fife was the occupant of premises on Nutfield lane in Manchester, and maintained a liquor nuisance therein; that the other defendants were the owners of said premises and suffered and permitted him so to do, and praying for an injunction to restrain and abate the nuisance.

. Petition, under the flowage act, for the assessment of damages. The plaintiffs’ land was bounded by the Piscataquog river at “ high-water mark.” The Piscataquog is a fresh-water river. The court instructed the jury that the words “ high-water mark ” meant that line on the river bank where vegetation ceased, and that the plaintiffs were entitled to recover damages to their land by flowage to that line. The defendants excepted.

<p>Case. Writ dated November 2, 1895. The declaration contained three counts; (1) Eor maliciously bringing a civil action against the plaintiff; (2) for maliciously attaching the plaintiff’s household furniture, exempt from attachment; (3) trespass de bonis asportatis. Facts found by a referee.</p> <p>August 13,1895, the defendants brought an action against the plaintiff and caused all her furniture exempt from attachment to be attached on the writ. All of the furniture, except three articles of the value of sixteen dollars, was released to the plaintiff upon demand. November 6, 1895, the defendants recovered judgment and levied upon these articles. The defendants were moved to bring their action quite as much by anger and spite against the plaintiff as by a desire to collect their debt. The plaintiff’ was greatly distressed mentally, and was prostrated physically for several days in consequence of the defendants’ suit and the attachment of her furniture, and claimed damages for the mental suffering. The referee assessed the damages for the taking of the articles levied upon at sixteen dollars, and found that the plaintiff should have fifty dollars in addition if she was entitled to other damages as claimed by her. Judgment was ordered for the plaintiff for sixteen dollars damages, with costs of two terms only. The plaintiff’ excepted because the fifty dollars damages was not included in the judgment ordered, and to the order limiting costs.</p>

Bill in Equity, by the executors of the will of Augustus G. Heed, to obtain the direction of the court concerning a request of Hannah C. Morse that repairs be made upon the homestead buildings devised to her for life under clause eleven; and by' Harriet F. Wallis, Abbie M. Beede, and Helen A. Baldwin for a construction of tbe will, to determine whether they take under clause eleven as “ legal heirs,” or are cut off under clause thirteen. Facts agreed.

Case, for injuries to the plaintiff’s intestate. Trial by jury and verdict for the plaintiff. March 1, 1897, the deceased was driving on Pearl street in Nashua, and while attempting to cross the defendants’ track was thrown from his sleigh and injured.

Bill in Equity, alleging that the plaintiffs are a corporation organized under the laws of this state; that they were' decreed to be insolvent debtors upon a creditor’s petition filed in the probate court for this county, October 20, 1898, under the provisions of c. 201, P. 8.; that the defendant Berry was appointed messenger, and as such claims the plaintiffs’ property; and that the proceedings in the probate court are void.

Appeals, from judgments of a justice of the peace against the defendants for violating section 8, chapter 60, Laws 1891. The complaints were made and prosecuted by one Forehand, who was not a police officer or constable. The defendants’ motions to dismiss the appeals for this reason were denied, subject to exception.

Assumpsit, on a promissory note. The plaintiffs’ evidence-tended to show that the consideration for the note was a loan by them to the defendant of $1,500 ; that they expected she would use the money to take up a note of like amount given by a firm of which her husband was a member and held by the plaintiffs, but that she could use the money for this purpose or not, as she chose.

Appeal, from a judgment of the police court for the town of Littleton, by which the defendant was adjudged guilty of violating the provisions of s. 18, c. 264, of the Public Statutes, and sentenced to pay a fine of one dollar and costs.

The plaintiff claims title by prescription and under a deed from the New Hampshire Iron Factory Company, executed February 25, 1857.

Bill in Equity, for the reformation of the plaintiff’s deed to the defendant, conveying through mistake, as is alleged, a tract of land in Bethlehem, containing about ten acres. A referee reported as follows: There were many witnesses on the one side and the other.

Forei&n Attachment. Issue between the plaintiff and claimants. Facts found by a referee. May 12, 1897, the defendants, Norcross, Mellen & Co., who are residents of Massachusetts, made an assignment of their property for the benefit of their creditors to the claimants in this suit.

<p>The lien of a sub-contractor is limited, both as to amount and the property to which it attaches, by what the principal contractor could enforce against the owner.</p> <p>A payment by the owner to the principal contractor of a sum not due, after notice of a sub-contractor’s lien, does not operate to give the sub-contractor any right he would not have had if the payment had not been made.</p>

Replevin. Plea, the general issue. Facts found by a referee.

Bill in Equity, alleging that on June 10, 1890, the plaintiffs recovered judgment in the district court of the county of Dickinson, in the state of Kansas, against the Corn State Bank, a corporation established January 31, 1887, by the laws of Kansas, for $865.70, debt, and costs taxed at $215.85; that execution issued on the judgment and was returned unsatisfied; that the defendant subscribed for and “ actually ” took five shares of the capital stock of the bank of the par…

<p>In the absence of statutory provision, the legal voters at a town meeting have authority to dictate the time at which the polls shall be closed.</p> <p>Under Laws 1897, c. 78, s. 18, the moderator at a town meeting cannot receive the ballot of an elector offered within the guard-rail after the polls • have been closed, and while the ballots are being counted.</p>

Assumpsit, upon promissory notes. Facts found by the court. The notes are respectively for $450, $25, and $545, dated October 26, November 26, and December 5, 1892, payable with interest at the rate of four per cent per annum, and signed “ Charles E. Folsom, ¥m. H. Underhill, Selectmen of Epping, John Q. Pike, Town Treasurer.” The signers held offices as designated, and their signatures are genuine.

Petition for partition of the Jack lot, so called. Pacts agreed. Josiah I. Hall, late of Chester, died testate, owning a homestead worth about $2,300, the Jack lot worth about $1,200, and a small quantity of personal property. His heirs were a son, John G., a daughter, Margaret A., and the plaintiff, the son of a deceased daughter.

The evidence tended to show that at the place of the accident, and for some distance westerly of it, the railway was lawfully located ten or eleven feet from the southerly line of the highway ; that formerly there was a fence within ten or twelve inches of the line upon which the southerly rail of the track was placed, separating the traveled part of the highway from Chauncey’s creek and a ditch; that this fence was removed by the defendants’ contractors when they built the…

Writ oe Entry. Facts found by a referee. December 19, 1889, tbe plaintiff was put in possession of tbe demanded premises, situated in Nottingham, by virtue of a valid levy of an execution issued upon a judgment in bis favor against Cyrus P. Batchelder. The execution and return of tbe levy were duly recorded, December 81, 1889. Tbe defendants’ title was derived from a sale of tbe land for taxes assessed against Cyrus for tbe year 1891.

Bill in Equity, to redeem from a mortgage. Pacts found by tbe court. The plaintiff is assignee of the estate of William P. Burke, decreed insolvent upon petition of his creditors filed October 3, 1896. Eor several years Burke had been a large manufacturer of brick upon a yard in Eremont in this county. The defendants, Gooch & Pray, were building contractors located in Boston, Mass., and used great quantities of brick in their business.

<p>Bill in Equity, praying for the construction of the wills of Mary E. and Marcellus Eldredge. Mary E., the wife of Marcellus, was unconscious at the time of her husband’s death, and died in a few hours thereafter without regaining consciousness. They left no children. Mary E. left a will, giving h.er whole property to Marcellus. Marcellus left a will the second clause of which reads as follows: “ To my said wife, Mary E.'Eldredge, I give and bequeath stocks, bonds, notes, and other securities such as she may select and choose out of and from my estate at my decease, of the par or face value of one hundred and fifty thousand dollars ($150,000), regardless of their market value. And the legacies hereinafter mentioned and given are not to be paid until this bequest to my said wife is fully satisfied and paid.” By the first clause of his will he gave his wife, and by the fifth clause his brother, each a house with all its furniture. By the third, fourth, sixth, seventh, eighth, ninth, tenth, and eleventh clauses, he gave various persons legacies amounting in the aggregate to one hundred thousand dollars. In the twelfth clause he provided that if his estate, other than the houses and their contents given to his wife and brother, and the legacy given to his wife in the second clause, should not be sufficient to pay his debts and general legacies in full, then these legacies should be paid pro rata. By the thirteenth clause he made his wife residuary legatee, and by the fourteenth the executrix of his will. Marcellus’ estate is not sufficient, after taking out the most valuable securities of which he died possessed, of the face or par value of one hundred and fifty thousand dollars, to pay his debts and general legacies in full.</p>

Bill in Equity, for the construction ol a will. Facts agreed. Bichard W. Shapleigh of Somersworth died May 24, 1897, aged thirty-five years and unmarried, leaving as next of kin his mother and a brother of the half blood, James II. Shapleigh. He left a will, which, besides bequeathing his watch and sundry sums of money, together amounting to $800, contains the following provisions : “ Sixth. I give and bequeath to Marion T. Shapleigh, widow of my deceased brother Fred It.

Assumpsit. Writ dated August 21, 1893. Pleas, the general issue and the statute of limitations. Pacts found by the court. Lydia S. Church died intestate in January, 1876, leaving surviving her a husband and children. She had a deposit in the plaintiffs’ bank, which they paid to her husband, Israel P. Church, upon his receipt, immediately after her death. Israel died in January, 1891, and soon afterward the defendant was appointed administratrix of his estate.

Case, for deceit iu a sale of lard. Verdict for the plaintiff. The plaintiff and one Pierce — the defendants’ agent who sold the lard to the plaintiff—both resided in Somersworth, and the plaintiff carried on business there. It appeared from the cross- . examination of the plaintiff that the issues involved in the action were previously litigated before the superior court in Portland, Maine, in an action in favor of the defendants against him, in which he testified.

Assumpsit, to recover the money paid as premiums on three policies in the defendant company on the life of Edward Delouche. Facts found by a referee. All the policies were for the benefit of the plaintiff and issued at her request. The plaintiff, who can neither read nor write, relying on the representation of the defendants’ solicitor that it was permitted by the company, procured this insurance on the life of Edward Delouche, her husband, without his knowledge.

<p>In an action for breach of a contract in restraint of trade, the plaintiff is entitled to recover damages for a loss of profits arising from the defendant’s engagement in business during the term of the contract, and for any injury to the good-will of the business occasioned by the breach complained of, but not for a loss of profits accruing after the termination of the contract..</p>

' Bill in Equity, by a stockholder of the Dover National Bank,, to hold the defendants, who were directors of the bank, p.erson.ally liable for.a loss occasioned by the defalcation of the -cashier. Facts found by the court. ’ The Docker National Bank did business in Dover until Janu.ary 11, 1895', :w’hen it suspended by reason of th.e.defalcation -of the cashier.

Assumpsit. Facts found by a referee. March 4, 1895, the defendant, who was indebted to the plaintiff, went into insolvency in Massachusetts. The plaintiff was a resident of New Hampshire and did not prove his claim; but his attorney, acting in his behalf, attended a meeting of the defendant’s creditors called for the selection of an assignee, and objected to the appointment of one Brown.

<p>One who rides upon an elevator, knowing that such use is forbidden, is a trespasser, and cannot recover for injuries resulting therefrom, in the absence of evidence that they were wantonly inflicted, or could have been prevented by the exercise of due care on the part of the defendants after discovery of the danger.</p> <p>Case, to recover for injuries resulting from the fall of an «elevator in the defendants’ factory. The negligence complained of was that of leaving the elevator unlocked and without a suitable attendant when it was out of repair.</p> <p>On March 17,1898, the plaintiff, who was an employee of the McKay Metallic Fastening Association went to the defendants’ factory to repair machinery leased to the' defendants by his employers. While there he went into the attic to get parts of an old machine which he needed about his work. He found there, similarly employed, an employee of another concern leasing, machinery to the defendants. When this man left the attic he locked the door. The plaintiff found it locked when he was ready to go down, and asked .one of the. defendants’ workmen,, named Evans, who was on the floor below, to-get the key. Evans could not find it, and the plaintiff asked him to come up with the elevator. Evans brought the elevator to the attic floor, and the plaintiff got upon it. Then-Evans, pulled the shipper the-wrong way and the elevator started upward. When it had gone about two feet the cage struck a projecting timber, broke, some of its machinery, and dropped to the basement. When the elevator was in working order, it could not be made to ascend above the attic floor. It had been out of- repair, for some time, and the defendants had directed the man in charge to keep it locked when it was not in use.</p> <p>The plaintiff knew that no one was allowed -to ride on the elevator, but he did not know that it was out of repair. There was no evidence that Evans’ work was in any way connected with the elevator, or that he was ever on it before.</p>

Case, for negligence. The declaration alleged that the defendant, a physician and surgeon, was employed to treat the plaintiff’s husband for a wound which became an infectious sore; that the defendant knew‘the danger to the plaintiff of infection therefrom, but negligently informed her that there was no such danger, and on one occasion directed her to assist in dressing the wound; that she, in1 justifiable ignorance of the truth and relying upon his assurances, did so assist…

Assumpsit and Probate Appeal, to recover for the same cause of action. Facts agreed. The plaintiff is the receiver of the People’s Fire Insurance Company, and as such, on July 1, 1894, was the holder of one hundred and fifty shares, of the capital stock of the Laconia Car Company, as collateral for anote which i/has not been paid.

Appeal, from the report of the commissioner upon the estate of William A. Maleham, allowing the plaintiff’s claim. Facts found by a referee. In April, 1891, the deceased made a contract with the plaintiff by which the latter was to become a member of his family and work for him when wanted. The plaintiff’s claim is for labor performed under this contract, and for money loaned to and goods bought for the deceased.

Appeal, from a decree of the probate court, ordering Marshall, as administrator of Crippen, to pay over to Hood, as administrator of Lawrence, any balance in his hands belonging to-the estate of Lawrence, of whose estate in his lifetime Crippen was administrator. Facts found by the court. The appeal was taken in good faith by Hood, who assigned, as reasons for his appeal, insufficiency and ambiguity in the decree.

<p>Assumpsit, for assessments and dues. Pacts agreed. The defendant became a member of the plaintiff association on January 11, 1887, and on July 1, 1898, his membership ceased by suspension, or withdrawal, under the third section of the seventh article of the by-laws of the association.</p> <p>The plaintiff claims fifteen assessments of $1.50 each. There were five of these assessments made in June, four in July, four in August, and two in September. The deaths, on account of which these several assessments were made, occurred at different dates, in March, April, May, and June. In addition to .these assessments the plaintiff claimed dues for June and September, one dollar, and canvassing and emergency fund, twenty-five cents.</p> <p>It is agreed that the beneficiaries, on whose account these several assessments were made, may appear as plaintiffs in interest, or be joined as parties, and, for the purpose of this case, their interest in the result of this suit may be considered by the court. It is also agreed that the defendant’s certificate of membership, the charter and by-laws of the association, are made a part of the case, and may be referred to, or used by either party.</p>

<p>Town records showing the appraisal of real estate for purposes of taxation are not admissible to prove its value.</p> <p>Petition, under P. S., c. 142, ss. 12-19, for assessment of damages for flowing the defendant’s land. Trial by jury and verdict for the defendant.</p>

Petition, for mandamus and injunction, as follows : “ Respectfully represents Ross ~W. Cate, resident and legal voter in Ward 2 in Concord in said county, that by a vote of the board of aldermen of the city of Concord, at a legal meeting thereof held on the thirty-first day of January, 1899, the following resolutions were legally passed by a majority of all the qualified aldermen, after a lull investigation and hearing of all parties in interest, to wit: “ ‘ Resolved, That…

<p>Under P. S., c. 73, s. 24, an abutting landowner is entitled to compensation for damages caused by a change of the grade of any part of the highway ; and the fact that the change was only of parts theretofore unwrought is no defence.</p> <p>Upon an appeal in such proceeding, the owner will not be heard as to claims not presented below; and what was so presented may be shown by evidence outside the record, if the petition is general.</p>

Case, to recover the value of the plaintiff’s sheep killed by dogs.

Trover, by a deputy sheriff against his receiptor. Eacts found by the court. The original suit was brought January 26, 1897, against Charles E. and Victor E. Koehler, surviving partners of the late firm of Carl E. Koehler & Sons, in favor of Volkmann, Stollwerck & Co., and was entered in court at the May term, 1897.

Claims, by the trustees under the defendants’ contracts of February 1, 1886, and March 14, 1894, for (1) expenses incurred prior to March 3, 1898, in the execution of the trust, (2) expenses to be incurred after that date, and (3) the difference between the value of the securities pledged with the trustees and the amounts due debenture-holders secured by the pledge. Facts agreed.

Case, for personal injuries caused by the defendants’ negligence in managing and driving a car. Verdict for the defendants. The plaintiff was a passenger upon one of the defendants’ cars, and, in attempting to alight after the car had started, was caught by the coat and dragged some distance. There was evidence tending to show that his coat was caught beneath the outside door of the vestibule. There was no evidence that the car was defective. It was viewed by the jury.

<p>Where an officer releases property attached, takes the receipt of a third person for a certain quantity of United States coin, and returns an attachment of the same, the receiptor is estopped from denying that there was an attachment in fact.</p> <p>Under P. S., c. 201, s. 26, a receiptor for property nominally attached on mesne process is discharged from his obligation by the defendant’s assignment in insolvency within three months of the attachment.</p>

Case, for negligence causing the death of the intestate, John Lintott. Trial by jury. The testimony tended to prove the following facts: The defendants are manufacturers of ear axles and heavy forgings. They have several shops, containing blast-furnaces, trip-hammers, and other machinery operated by power transmitted by means of shafting, pulleys, and belts. John Lintott, while in the defendants’ employ, was killed, February 24, 1898.

Probate Appeal. Facts found by the court. In 1849, Asa K. Emery and Martha J. Emery were married. At that time he had property of about $2,000, and she of about $1,100. They lived together until the spring of 1885, having in the meantime added to their property.

Petition, for attachment for contempt in violating the injunction issued at the September term, 1898, in which this defendant, his aiders and abettors, were forever “ restrained from removing any two-feet flashboards or any three-feet flashboards which are now upon said dam, or which may hereafter be placed upon said dam in accordance with the conditions and requirements of the two aforesaid deeds.” One of the deeds referred to was given in 1875, and thereby the plaintiffs…

Petition, for the interpretation of a will. Pacts agreed. The petitioner is the administrator with the will annexed of the estate of Franklin C. Morrill, late of Manchester, deceased.

Case, for negligence. Verdict for the defendants. The plaintiff’s evidence tended to show that while intoxicated he was injured by the failure of the defendants’ servants properly to care for his safety after accepting him as a passenger, with knowledge of his condition.

Assumpsit, to recover the amount due on four notes given by the defendant John Mooar to the plaintiff’s intestate. Plea, the general issue, with a brief statement of the statute of limitations. The plaintiff’s evidence tended to show that, after the death of the payee of the notes, she sent the notes to one Jacob Mooar to compute the amount due upon them. Jacob found due on the notes $163.

Foreign Attachment. Issue between the plaintiff and trustee. Trial by the court. The defendants built a house for the trustee under contract. After the writ was served upon her, and before the taking of her disclosure, she paid fromi funds belonging to them, upon orders given by the workmen,, more than the amount for which the plaintiff claims to hold her-RS trustee.

<p>A plea of former conviction is not supported by evidence of an arraignment in an inferior court, and a binding over upon a plea of guilty.</p> <p>Indictment, for aggravated assault. The state put in evidence the complaint upon which the respondent was arraigned in the police court, and to which he pleaded guilty. The offence was charged in the following language : “ With force and arms did make an assault upon one Cleophas Twombly, and him, the said Cleophas Twombly, did then and there beat, bruise, and ill-treat, and other wrongs to the said Cleophas Twombly then and there did,” etc. Upon this complaint and plea the respondent was hound over. After the introduction of this evidence, the respondent asked and was granted leave to plead a former conviction, and upon this plea moved that a verdict be directed in his favor. Subject to his exception, this motion was denied. lie then moved that both the general issue and plea of former conviction be submitted to the jury, but, subject to exception, this motion was also denied, and the case was submitted to the jury upon the general issue only.</p>

Assumpsit, to recover the value of baggage lost upon the Central Vermont Railroad. Trial by the court. The plaintiff purchased of an agent of the defendants, at Nashua, a ticket for Montreal.

Case, for negligence. The plaintiff’s declaration alleged that it was the defendants’ duty to fence their right of way, and that this duty was neglected, whereby the plaintiff, a child of tender years, was enabled to stray upon the track and was injured by moving cars. The defendants demurred.

<p>Bill in Equity, alleging that in May, 1898, a firm to which the plaintiff is successor made a contract with the Boston & Maine Railroad, whereby the firm was to furnish means to convey the baggage and merchandise of passengers from the station in Manchester, and whereby the railroad granted to the firm the exclusive right to solicit the patronage of passengers upon the railroad’s grounds; that by the contract the firm agreed to furnish suitable teams, etc., to so carry on the business as to fully meet the convenience and necessities of passengers, and to charge no more than reasonable rates, all of which the said firm and the plaintiff' as its successor have fully performed; that the defendants, in violation of the plaintiff’s rights, and after notice from both the plaintiff and the railroad, persist in going upon the premises of the railroad to solicit the carriage of baggage, etc., and declare their intention to continue to do so. The prayer of the bill is for an injunction to restrain the defendants from interfering with the plaintiff’s rights under the contract. By an amendment, the plaintiff alleged that the object of the railroad in making this contract was to provide for doing the business in a constant and orderly manner, and to prevent unnecessary crowding of its premises, annoyance to passengers, and interference with the railroad employees in their work. The defendants demurred.</p>

Appeal, from the decree of the judge of probate, allowing a codicil to the will of George Bilbruck. Verdict for the defendant. The plaintiff excepted to the denial of his motion that a verdict be directed in his favor.

Assumpsit, for money paid by the plaintiffs to the asylum for the insane, for the support of an insane person who had a settlement in Wakefield, was not a pauper, and was committed to the -asylum by the judge of probate.

<p>Case, by an employee of the defendants, for negligence. The court ordered a nonsuit, and the plaintiff excepted.</p>

<p>Appeal, from a sewer location and assessment of damages made by the city council.</p>

<p>Complaint, under P. 8., c. 271, s. 5, for keeping a shop open on thcLord’s day for the reception of company. The defendant requested instructions to the jury which were not given. After the verdict was returned, the defendant excepted in general terms.</p>

Petition, for a decree of priority for the plaintiff’s claims against all the assets in the hands of the assignee of the New Hampshire Trust Company not subject to any specific lien. The facts appear in Tucker v. Trust Co., ante, p. 187.

<p>Case, for negligence, by the administratrix of the estate of an employee of the defendants. Trial by jury and verdict for the plaintiff. At the close of the evidence, subject to the defendant’s exception, the court denied their motion to direct a verdict in their favor.</p>

Bill in Equity, to vacate a judgment of foreclosure recovered by the defendant bank against the plaintiff. Upon hearing, the bill was dismissed.

.Petition, under P. S., c. 205, ss. 4, 5. This is the same case reported ante, p. 496. After that decision, the plaintiffs moved at the trial term for an injunction against all the defendants, but introduced no evidence except the record. The motion was granted as to the tenant, and an order made dismissing the bill as to the landlords, to which the plaintiffs excepted.

Case, to recover for injuries resulting in the death of the plaintiff’s intestate, Joseph Dube, while employed by the defendant in laying a sewer. The defendant’s motion to direct a verdict for him was denied, subject to exception.