Volume 70 — New Hampshire Reports

Debt, to recover double damages for the bite of a dog. Subject to the defendant’s exception, the court allowed the plaintiff to amend by changing the form of action to case, and held that the defendant was not entitled, as a matter of right, to have the. jury double the damages.

Motion, by Gleason, for stay of execution in Robinson v. Burke. After tlie plaintiff had recovered judgment in this action, which is trover against a deputy sheriff for attaching goods which were exempt from attachment, Gleason, a creditor of Robinson and not a party to any prior proceedings, sued him, summoned Burke as trustee, and moved for stay of execution until his action against Robinson should be determined.

Cabe, for negligently setting fire to the plaintiffs’ storehouse. Trial by jury, and verdict fox the plaintiffs.

<p>"When there is a conflict between the lex loci and the lex fori, the former governs in torts the same as in contracts.</p> <p>A servant who voluntarily continues in an employment, with knowledge of the master’s habitual negligence and the increased peril thereby incurred, assumes the risk of dangers arising therefrom.</p>

Appeal, from the decision of the commissioner upon the testator’s estate disallowing the plaintiff’s claim. The facts were found by a referee, who, subject to the defendant’s exception, admitted the testimony of the plaintiff’s husband as to conversations' between the plaintiff and the deceased. The executor did not testify. The court ordered judgment for the plaintiff upon the report, and the defendant excepted.

<p>An act of the legislature, legalizing and confirming the votes and proceedings at an election held under a warrant not posted in accordance with the statutory requirement, is not within the prohibition of article 23 of the bill of rights against retrospective laws.</p> <p>Petitions, under chapter 66, Laws 1893, enacting that “ The supreme court at any trial term, or any justice thereof in vacation, may, on the application or petition of any candidate interested in a contest fox any county office, find the facts relating to such contested election as well before the term of such office begins as after; and any question of law arising upon the facts thus found may be heard at any regular, adjourned, or special law term of the court, as the court shall direct; and the court shall issue a certificate of election to the candidate who is found by the court on such proceeding to be elected, and the person receiving such certificate shall assume and discharge the duties of the office. ”</p> <p>The selectmen’s warrant for the biennial meeting or election in Lancaster, held on November 8, 1898, was not posted until October 27. The plaintiffs and the defendants were opposing candidates for the offices of sheriff and treasurer of the county. If the ballots cast in said town for these offices are counted, the plaintiffs are elected; otherwise, the defendants are elected.</p>

Bill in Equity. Facts found by a referee. The plaintiffs own lands in Jackson bounded by the northerly line of the town, claiming under a grant from the state to Daniel Pinkham in 1835 : .and the defendants own adjoining lands in Bean’s Purchase, claiming under a grant from the state to A. Bean in 1832. The controversy relates to the location of the dividing, or town, line.

Case, for' negligence. Pacts agreed. The plaintiff’s sled, while “ set ” upon a Mghway crossing of the defendants’ railroad in consequence of the crossing being bare of snow, was run into by one of the defendants’ trains and injured. If it was the duty of the defendants to keep the crossing covered with snow, the plaintiff is to have judgment.

<p>Assumpsit, upon a policy of insurance upon tlie plaintiff’s dwelling-house. Facts agreed. At tlie date of the policy, the only ■exposures to said dwelling-house were other farm risks ox dwellings. Subsequent to the date of the policy, a third party erected on his land a building between the plaintiff’s dwelling-house and the nearest exposure mentioned in the application, which building so erected was occupied as a groceiy store and public hall, and was a more hazardous risk than the property insured by the defendants. The plaintiff knew of the erection of this new building and its. continuance there, but the defendants did not. April 14,1899, the new building caught fire and was destroyed, and fire was communicated thereby to the plaintiff’s dwelling-house, which was destroyed.</p>

Trover, for converting wire, and Trespass, for destroying poles and wire. Facts- agreed. In 1868 tlie plaintiffs constructed a telegraph Hue in the highway from Hampton to Hampton beach, but its location was not authorized by the selectmen of the town, :as required by law. June 5, 1867, the Telegraph Company duly filed with the postmaster-general a written acceptance ol tlie restrictions and obligations required by the act of congress approved July 24, 1866.

Assumpsit, the first action by the administrator of the estate of James F. Stevens, and the second by Ms mother and nearest relative, to recover a fmieral benefit paid by the Funeral Benefit Association to the treasurer of Rockingham Council No. 2, Junior Order of United American Mechanics, upon James’ death. The defendants are officers and members of the Council, a voluntary association of which James was a member.

<p>A statute designed to prevent fraud and imposition in the use of oleomargarine as an article of food is a legitimate exercise of the police power and not in conflict with the constitution.</p> <p>Indictment, under chapter 115, Laws 1895, charging the defendant, a boarding-house keeper, with furnishing oleomargarine to her guest, without the latter’s knowledge. The defendant moved to quash the indictment, on the ground that section 3, chapter 115, Laws 1895, is unconstitutional. The motion was denied, and the defendant excepted.</p>

Assumpsit, to recover the plaintiff’s salary as city solicitor for the year 1897. Trial by the court. Prior to January 6,1897, the salary of the city solicitor was by ordinance a fixed sum of money, and, in addition thereto, he was accustomed to receive fees as a justice of the peace for all complaints and warrants issued by Mm returnable before the police court of tire city of Dover, upon winch the respondent was convicted and paid the costs adjudged against him.

<p>Selectmen have no authority to waive the filing of the tax inventory required by section 8, chapter 57, of the Public Statutes.</p> <p>The right of appeal to the supreme court for an abatement of taxes is not lost by a failure to comply with the statutory requirement for the filing of an inventory, through accident, mistake, or misfortune.</p> <p>Upon the question whether a taxpayer was prevented from filing an inventory through .accident, mistake, or misfortune, evidence of his ignorance of .the law is competent.</p>

Probate Appeal. Facts agreed. The plaintiff, widow of Dyer P. Hall, was married to him August 15, 1883. Before the marriage Dyer gave a note for $1,450 and a deed of a tract of land to Deborah Felker, who, at the same time, gave him a bond to re-convey upon payment of the note. Dyer continued in possession of the land until his death. His administrator paid the note, and thereupon Deborah conveyed the land to him for the benefit of the estate.

Bill in Equity, praying for the construction of the fourth and fifth clauses of Lois Merrill’s will, which are as follows : “ 4th. I give and bequeath to the First Freewill Baptist Society, where I attend church, the proceeds of the note I have against it, also the sum of five hundred dollars, and direct my executor to. safely invest said sums, and the income thereof to be annually applied to the uses of said society in the village of Great Falls, in said Somersworth. “ 5th.

Probate Appeal. Facts found by a referee, who reports as follows: This case is an appeal by the administrator of the estate of Sarah T. Sargent, who died February 26, 1897, from the allowance by the commissioner on her estate, of a promissory note of the following tenor: “ In consideration of money loaned me at different times, and for other good and valuable consideration, in all to the value of one thousand dollars, I promise to pay Mrs. Anna P. Gordon, or her order, on…

Case, for causing tlie death of John L. Cate by negligence at a highway grade crossing, known as the Waukewan crossing, situ.ated about half a mile northerly of the Meredith station'. Trial by jury. A view of the crossing was taken. The railroad approaches it from a southerly direction on a curve, the center of which is on the same side of the track as the highway.

Foreign Attachment. Facts agreed. March 17, 1899, the trustee gave to the defendant two negotiable promissory notes for $125 each, one payable in four and the other in six months. The notes were made and payable m tliis state, where the parties resided. March 24,1899, the writ was served on the trustee. April 1,1899, the notes were transferred to the claimant Greenough, and by her, April 19, 1899, to the other claimant, the Laconia National Bank, wlrich has since held them.

Bill in Equity, alleging that the plaintiff is heir to one half of the estate of James G. Thompson, of which the defendant James-L. Wilson is administrator; that the estate was represented as insolvent, and á commissioner appointed whose report was accepted by the probate court.

Foreign Attachment. The trustee disclosed that he owed the defendant $32.89, for the work of himself and team. At the beginning of the action the defendant owed the trustee $7.22. The trustee was held chargeable for $25.67, and he excepted.

Case, for personal injuries, alleged to have been caused by the defendants’ negligence while the plaintiff was employed as a servant in their water-works department.

<p>A mortgage to a trustee to secure the payment of bonds* to be thereafter issued is valid, becomes effective as the bonds are disposed of, and takes precedence of attachments by creditors of the mortgagor as to sums advanced prior thereto.</p> <p>The discharge of a prior mortgage and the taking of another in its stead -will be treated as an equitable assignment, as against attaching creditors whose action was in no way influenced by reliance upon the recorded discharge.</p> <p>Where a corporation has issued mortgage bonds in excess of the amount authorized by its charter, the transaction is not open to attack, on the ground that it was ultra vires, at the instance of creditors whose rights were not infringed thereby and whose attachments of the mortgaged property were precedent to such illegal issue.</p>

Bill in Equity, fox instruction in the execution of a trust.

Case, for negligence resulting in the death of the plaintiff’s intestate, James McGill, while in the employ of the defendants. Trial by jury and verdict for the plaintiff. The evidence tended to show the folio-wing facts : The deceased had been in the defendants’ employ for about twelve years, and at the time of his death had charge of their granite shed and yard, being foreman of that part of their works.

The defendant testified that one Buck, a former agent of the defendant’s grantor, had been present at the trial, at the defendant’s request, but was allowed to depart without testifying. Subject to exception, the plaintiff’s counsel argued that this showed that the defendant could get no aid from Buck’s testimony.

Petition, for habeas corpus. The petitioner was committed to-jail upon a capias execution, issued by order of court, in proceedings brought against him by his wife for separate maintenance.

<p>Case, for injuries to the plaintiff’s horse. Trial by jury and verdict for the plaintiff. In June, 1898, one Mclntire, the foreman of the defendants’ linemen, having authority to hire horses for the defendants, when needed in connection with the branch of their work over which he had charge, hired of the plaintiff, at Hopkinton, two horses and wagons for use while rebuilding a part of their line from Concord to Hopkinton. The price agreed to be paid was $1.75 per day, and the horses were to be returned to the plaintiff’s stable each night.</p> <p>The plaintiff’s evidence tended to prove that the horses were hired only to transport workmen from Hopkinton to and from their place of work, which was about two miles distant; that on the day the horse was injured (July 7,1898), he was driven beyond the point for which he was hired, some four or five miles, to Concord; that the day was very warm, and the wagon heavily loaded.</p> <p>The defendants’ evidence tended to prove that they hired the horses for use upon their line wherever needed. They admitted that on the day in question they had driven the horse to Concord, and claimed that under their agreement they had a right to do so.</p> <p>As tending to show that the contract was as stated by him, the plaintiff testified, subject to the defendants’ exception, that when the horse was returned at noon on July 7,1898, the driver denied that he had driven the horse beyond where the men were at work, and as far as Concord. The plaintiff also testified, subject to exception, that the loss of service of the horse was a damage to him of a dollar a day for fifty-three days.</p>

Petition, for mandamus, filed at April term, 1899. Facts found by the trial court. John TV. Sanborn was declared elected an alderman of Ward 2 of the city of Concord, at tlie municipal election in November, 1898. His election was contested by tlie plaintiff, who claimed to be elected instead of Sanborn, and a hearing was had before the aldermanic board, January 81, 1899.

<p>Where a clause in a will provides that the widow shall take one third of the testator’s real estate in F and also one third of all his personal property, she is entitled to the shares specified without diminution by the payment of debts, although the personalty in the hands of the executors is insufficient for that purpose.</p>

<p>A foreclosure of a mortgage pays the'notes secured by it to the extent of the value of the real estate obtained thereby at the moment of foreclosure; and such value is the amount for which the property could Fave been sold at a sale held at a reasonable time and place, after reasonable notice, and conducted with reasonable skill and diligence for the'purpose of obtaining the-highest price.</p> <p>In an action to recover a balance due upon mortgage notes after a sale subsequent to foreclosure, the income derived from the property, the prices for which it had been sold, the value of improvements made upon it, and the opinions of qualified witnesses are competent evidence to show its value at the date of foreclosure; but the appraisal of the property for taxation is not admissible for that purpose.</p> <p>The price obtained at a foreclosure sale by an executor, under license of the probate court, has no greater weight against the mortgagor in determining the value of the property than if made by the testator.</p> <p>Where a foreclosure sale is made by an executor for the purpose of settling an estate, the expense thereof is not chargeable to the mortgagor.</p>

Assumpsit. Facts found by a referee. In 1896, the defendant Mary Kehoe had an equitable and later a legal title to certain real estate, a part of which she let the plaintiff have the use of for §>o per year. At this time he wanted to buy or lease, but she declined on the ground that she did not have a perfect title. Within the year, he cleared the land and erected some small buildings on it, for which he claims to recover.

Bill in Equity, by the surviving trustee under the will of Sliadracli Seavey, for the interpretation of tire will and directions as to the distribution of the estate. He devised the residue of his estate to his executors, in trust for the following purposes: First. To manage and carry on the estate. Second. To pay over the net income thereof to his son Gilbert during his life.

<p>The lien acquired by an officer under an attachment is not lost by taking a receipt and permitting the property to return to the possession of the debtor.</p> <p>Where a chattel mortgage is in terms made subject to an attachment, the' mortgagee will hold the property subject to the lien of the judgment creditor.</p>

<p>The repeal of the statutory provisions giving to a complainant or prosecutor the whole or part of a penalty does not apply to offences theretofore committed.</p>

Indictment, to recover a forfeiture of fifteen dollars for keeping a dog without a license.

<p>The unauthorized receipt oí a bank-book by a-collecting agent will not operate as payment of the debt, if the transaction is repudiated by the principal within a reasonable time after it is brought to his knowledge.</p> <p>Action eor Possession, under the landlord and tenant act. Facts found by a referee, as follows: December 1, 1898, the plaintiff owned the premises in question, and the deféndant occupied them at a monthly' rental of six dollars per month, payable in advance. At this time she demanded ten dollars per month, which the defendant refused to pay, but did offer her six dollars, which she declined. February 27, 1899, the defendant deposited in the Manchester Savings Bank, in the name of the plaintiff, the sum of twelve dollars, to pay for the January and February rent, taking a book therefor in the name of the plaintiff. On or about March 1, Mrs. Kehoe, a sister of the plaintiff and her agent in this matter, demanded the rent, and the defendant paid her six dollars for the December rent, and gave her the bank-book aforesaid, which she took, saying it was all right. There 'was no evidence that Mrs. Kehoe had authority tq accept anything as payment for rent other than' money, and I find she had no such authority, unless implied as a matter of law. I find, however, that tins book was accepted by Mrs. Kehoe for the rent. Within a reasonable time the plaintiff returned the book to the defendant, who has since had it, and demanded twelve dollars in money for the two months’ rent, which the defendant refused to pay. The plaintiff then served a seven days’ notice to quit on the defendant, which was sufficient to entitle her to possession of the premises unless the receipt of the bank-book, as herein stated, shall be held to be payment of rent for January and February, in which event there is to be judgment for the defendant. The court ordered judgment for the plaintiff, and the defendant excepted.</p>

Appeals, from the report of a commissioner disallowing the plaintiffs’ claims against the estate of George W. Ela. Joseph Ela died at Mobile, Alabama, February 21, 1863, intestate, leaving as heirs five brothers and sisters, of whom Elizabeth Ela was one. She died November 22, 1867, leaving as heirs three children, two of whom are plaintiffs. April 28, 1863, George took out administration in this county upon Joseph’s estate.

Bill in Equity, by the executor and trustee under the will of George Clough, for instructions. Facts found by the court. The testator died January 2, 1895, leaving property valued at $101,-000, disposed of by will supplemented by two codicils. By the terms of the will, the testator’s minor son, Henry, one df the defendants, was bequeathed property valued at $37,500, which bequest was revoked by the last codicil and $100 was bequeathed to him in its stead.

Case, for negligence in allowing a sewer, culvert, and brook in Prospect street to become filled up, out of repair, and insufficient co carry off the water, in consequence of which it flowed down Winnipiseogee street On the plaintiffs land. Trial by a referee. The land slopes from Prospect street westerly, down Winnipiseogee street, to the plaintiff’s land on Railroad avenue.

<p>Case, for personal injuries sustained by the plaintiff, September 10, 1898, while alighting from a car, through the alleged negligence of the defendants in stopping for her to alight at a place not reasonably suitable for this purpose. Verdict for the plaintiff. The plaintiff’s evidence tended to show the following facts: On Saturday afternoons during the summer preceding her injury, she went to Blossom Hill cemetery upon one of the defendants’ cars, which, in accordance with her request, was stopped at the first entrance to the cemetery for her to alight upon the west side of the track, where the ground is practically as high as the top of the rails, and she alighted hi safety. Beyond this entrance the track is upon the west side of the highway, and the running-board of an open car extends practically to the shoulder of the road.</p> <p>On the day of her injury she took an open car for the cemetery, as on previous occasions, and sat upon the west end of a seat. A friend was at her right, and farther along the seat were other passengers. Her friend notified the conductor, when he collected their fares, of her desire to alight af the first entrance, but he failed to stop there. In response to a signal from a passenger, the conductor stopped a short distance beyond the entrance for her to alight. Upon the west side, opposite. her seat and where she claimed the accident occurred, there was a depression from two to eight inches in depth, the lowest part of which was four feet west of the track. The distance from the running-board to the ground, where one would naturally step, was greater than at the entrance to the cemetery. The plaintiff had flowers and a -wrap on her left arm; and when the car stopped she arose and grasped the handle designed for the purpose with her right hand, and very carefully stepped upon the running-board. The ground was lower than she expected to find it, and she fell and received her injuries. She did not look to see where she was about to step; but she testified that she took pains in stepping off. Upon cross-examination, she testified that the condition of her eyesight was very good indeed; that she did not see the condition of the ground before she stepped from the car; that she did not take any pains whatever to see where she was stepping as she stepped, to the ground; that she expected to step out just as she used to at the cemetery; that she knew she was beyond the entrance to the cemetery; that, knowing this, she took no pains Avhatever to see where she was stepping, but just stepped off; that she certainly could have seen where she was stepping if she had taken pains. Her evidence further tended to prove that the conductor did not assist her, or direct how or on which side of the ear to alight.</p> <p>Subject to the defendants’ exception, the plaintiff testified that her'friend told the conductor, when he collected their fares, to “ leave us at the cemetery,” and that on prior occasions she had no difficulty in alighting at the entrance. Subject to the same exception, the friend testified that when the conductor collected their faros she said to him, “Blossom Hill cemetery,” and the plaintiff, in the presence and within the hearing of the conductor, added, “ He ought to know where I am going by this time.”</p> <p>At the close of the plaintiff’s evidence the defendants moved for a nonsuit, on the ground that there was no evidence of negligence on the part of the defendants, or of ordinary care on the part of the plaintiff. The motion was denied, and the defendants excepted.</p> <p>The defendants made the following requests for instructions:</p> <p>1. “ That a passenger on a street car has no right to expect that the street where she alights shall be in such condition that she can safely alight on it. And if she does so without looking to see where she is stepping and is injured thereby, she is guilty of such negligence as will prevent her recovery of damages against the railway company.”</p> <p>2. “ That the defendants had the right to assume that the plaintiff, in alighting from a car in broad daylight, would notice any defect which was open to ordinary view in the street at the place where she stepped down from the car.”</p> <p>3. “That a material question in this case bearing upon the defendants’ negligence is whether or not the place at which the conductor stopped his car was a reasonably safe one at which the plaintiff might alight; and that if the conductor had no special information in relation to the condition of the place which the plaintiff did not have the means of seeing or obtaining for herself, he was under no obligation to give her any information in regard thereto.”</p> <p>4. “ That if the jury found this plaintiff, in alighting from the car in broad daylight, in full possession of her sense of sight, did so without looking to the ground, or using any means of seeing where she was stepping,' or the distance to the ground, she was guilty of such negligence that she cannot recover in this case.”</p> <p>5. “ That this plaintiff, being voluntarily encumbered with two bunches of flowers and her wrap upon her arm, was under greater obligation to look and observe where she was about to step than she would have been if she had the free rise of her person.”</p> <p>. 6. “It was the plaintiff’s duty to use care in alighting from the car; and if there was any defect at the place of alighting which might contribute to her injury, yet if she could by looking have discovered such defect, and she neglected to do so, it being in broad daylight and she having good eyesight, and that neglect to look contributed to the accident, then she cannot recover.”</p> <p>The court denied the requests, and the defendants excepted:</p>

Complaint eor Bastardy. Verdict, that the defendant is chargeable. 1. Subject to the defendant’s exception, a witness testified that the defendant is a Jew. The child was exhibited to the jury; and they were instructed, subject to exception, as follows: “ The fact that the defendant is a Jew must not be allowed to prejudice him in the eyes of the jury.

Petition, for leave to appeal from a probate decree made in 1898, finding a balance in the hands of Henry J. Crippen, upon the settlement of Ms account as administrator with the will annexed of the estate of George W. Lawrence. The plaintiff was a surety on Crippen’s bond. Crippen died in 1898. His estate was settled in the insolvent course, the report of the commissioner being accepted in 1895. The claim of the Lawrence estate was not presented to the commissioner.

Bill in Equity, for an accounting. February 19, 1880, the parties bought out the insurance business of Charles W. Cilley for $250, each contributing one half of this amount, and on the same day entered into an agreement under seal for the purpose of carrying on the business.

<p>An action for breach of promise of marriage and the judgment recovered therein survive in favor of or against a person deceased, and are assignable.</p> <p>The right of an assignee of a judgment to maintain an action thereon in the name of the assignor will not be defeated by a release procured by the judgment debtor after notice of the assignment.</p> <p>BrLLS in Equity, to aid in the collection of a judgment recovered against the defendant Lee, in an action for breach of promise of marriage. William C. Eaton, and others, had an equitable assignment of this judgment as security for $1,966.24, and Lee, after he knew of the assignment, procured a release from the plaintiff and moved to dismiss these actions. The court denied his motion, and allowed Eaton to appear and prosecute them as plaintiff in interest, and the defendant excepted.</p>

Bill in Equity, brought by the holders of secured certificates of deposit issued by the Union Trust Company, to recover from the defendants upon a contract made by them with the Union Trust Company on March 29, 1892, for the benefit of all parties who should become in any wise interested in the subject-matter of the contract.

Indictment, for furnishing oleomargarine in the place of butter to a guest of the defendant’s hotel, in violation of section 3, chapter 115, Laws 1895, enacting that it shall be unlawful for any person to furnish or cause to be furnished, in any hotel, etc., to any guest or patron, oleomargarine, butterine, or any similar substance, without first notifying such guest or patron that the substance so furnished is not butter. Trial by jury, and verdict for the state.

December 31,1896, the joint boards of selectmen of the defendant towns laid a highway across the petitioner’s land and assessed her damages. She took an appeal, both from the laying out and from the assessment of damages. At the September term, 1897, she amended by striking out the appeal from the laying out. Subsequently the towns voted to discontinue the highway and filed a petition to procure the assent of the court thereto.

Case, for personal injuries. The plaintiff was employed by the defendants as a weaver. He had nothing to do with the belts or machinery, which were under the care of a loom-fixer. On July 26,1895, the loom-fixer, who was engaged in adjusting a belt, beckoned the plaintiff to come to him, and he did so. While the loom-fixer held the belt in place upon an upper pulley, the plaintiff placed his foot against it and attempted to kick or push it upon a lower pulley.

Petition, for abatement of taxes. Trial by referees, who reported iu favor of the plaintiffs.

<p>In an action of implied assumpsit for labor, evidence of the plaintiffs’ customary charges for similar services is admissible to prove the market price or value of the labor furnished.</p> <p>Assumpsit, upon a contract in writing, for the price of a hydraulic plunger elevator put into the defendant’s building by the plaintiffs, and for extra expense under the following provision in the contract: “ Excavation necessary for the proper setting of the elevator to be done by the Elevator Company, except in case of rock, when, if drilling or blasting is done, the extra expense of the same will be charged.” Trial by jury and verdict for the plaintiffs.</p> <p>There was rock in the way of the necessary excavation which had to .be drilled, for which the plaintiffs, in their specifications, charged 818 1-2 hours’ labor at forty cents an hour. The plaintiffs’ manager, after, stating the number of hours occupied in drilling, testified, subject to the defendant’s exception, as follows: “We always charge forty cents an hour; it has been our custom; and sometimes fifty cents an hour for similar labor.” On cross-examination he stated that the plaintiffs paid one of the three men who did the drilling $3 a day (of ten hours), and the other two $2.50 a day each. There was other evidence regarding the cost of the labor, all to the same effect.</p> <p>The jury were instructed, in accordance with the defendant’s contention' in the opening statement and closing argument of Iris counsel, that the plaintiffs were entitled to recover under the foregoing provision of the contract the difference between the actual cost of the drilling and the cost of making the excavation if there had been no rock in the way, without any profit.</p>

<p>A transfer of chattels made within three months before the commencement of insolvency proceedings, in consideration of the payment of debts for which the vendee was already liable, and outside the ordinary course of business, is voidable by the vendor’s assignee in insolvency.</p> <p>Tboveb, for contracts in writing, evidencing conditional sales. Facts found by the court. Before December 18,1897, the defendant had signed a note with O. Caron & Co.,, for their benefit, and had receipted for goods which had been attached in an action against them. On that date the note was due, and Caron & Co. sold to the defendant the said contracts, upon consideration of his promise to pay the note and claim. He paid these December 20, 1897. Caron & Co. were adjudged insolvent January 25, 1898, and the plaintiff was appointed assignee. The sale of the contracts was not made in the ordinary course of business.</p>

Bill in Equity, to foreclose a mortgage. The defendant’s answer alleged fraud in the sale, and claimed damages, to be applied in reduction of the mortgage note. Trial by jury upon the issue of deceit. Verdict for the defendant. The defendant was allowed to amend his answer, subject to exception.

<p>A nonsuit will not be ordered in an action for negligence when the evidence yarrants a finding that at the time of the accident the plaintiff could not, and the defendant could, have prevented the injury by the exercise of ordinary care.</p> <p>Case, for negligence. Trial by jury and verdict for the plaintiff. The plaintiff’s evidence tended to prove the following facts: The Cancha road runs east and west, and the defendants’ tracks are upon the southerly side, next to its junction with the Lake Shore road. The east-bound cars run upon the southerly track, and the west-bound cars upon the northerly track. There is no obstruction to the view of the southerly track from the Candía road, except such as may be caused by cars upon the northerly track. The plaintiff drove easterly upon the Candía road and turned to go upon the Lake Shore road. He waited for two westbound cars to pass, then looked in both directions, and when the last car was about twenty feet beyond the crossing, seeing no cars approaching, he attempted to cross the tracks. When he started he could see about sixty feet up the south track. When he got part way across, he saw, about eighty feet distant, a car approaching from the west, at a high rate of speed. He attempted to turn back and nearly succeeded in doing so, but the running board of the car caught the off hind wheel of his wagon, and he was thrown out and injured. The motorman made no attempt to stop until within fifty or sixty feet of the crossing, and not until he had been warned to do so by the bystanders. He then applied the brake, but did not reverse the power. The car might have been stopped much sooner than it was. The defendants’ evidence tended to contradict the plaintiff’s. The defendants’ motion for a nonsuit and that a verdict be directed for them were denied, subject to exception.</p>

<p>Under section 13, chapter 63, Laws 1897, only those physicians and surgeons who were in practice in this state at the date of the passage of the act are entitled to registration and license without examination.</p> <p>A failure to comply with a rule established by the regent of the state boards of medical examiners is not conclusive evidence that a physician is not entitled to registration and license by reason of prior practice in this state.</p> <p>The constitutionality of a statute cannot be questioned by one who seeks to avail himself of its provisions.</p> <p>The determination of the question whether an applicant is entitled to registration and license as a physician being a judicial act, mandamus will not lie to compel particular action by the regent of the state boards of medical examiners.</p>

Indictment, charging the defendant with selling a package of oleomargarine of the same color as yellow butter, in violation of section 1, chapter 115, Laws 1895. Trial by jury and verdict of guilty. The defendant is the agent in this state of Swift & Co., an Illinois corporation engaged in the manufacture of oleomargarine in that state. They ship some of their product to him at Manchester in this county, where he sells it in the original packages as ther agent.

Bill in Equity, praying for instructions as to the execution of the will of Edward C. Aldrich, of which the plaintiff is the executor. The testator, after ordering the payment of his debts and funeral expenses, and giving one hundred dollars to the city of Keene, in trust, for the care of a cemetery lot, made the following provision: “ Third.

Bill in Equity, for an abatement of taxes. Facts found by the court. Tbe plaintiffs were organized as a corporation under the General Laws, and own a three-story brick building on West street, the principal part of which is used for the purposes of the organization. They rent two stores on the first floor, one for a crockery store and the other for a restaurant. The primary object in renting the stores is to obtain revenue, for use in carrying on the work of the organization.

Bill in Equity. Facts found by the court. Prior to February 24, 1896, the defendant, Edwin M. Hunton, and one Barker, being partners in business under the firm name of Hunton & Barker, dissolved the partnership upon the agreement that Hunton should have its assets and pay its indebtedness, including the firm’s note of $1,500 to the plaintiff.

On August 12, 1899, the defendants conveyed all their property in this state to the American Woolen Company.

Bile in Equity, alleging that J. W. French, deceased testate, made a devise as follows: “ I give, bequeath, and devise unto Wm.

Assumpsit. Facts found by the court. The defendant so treated his wife as seriously to injure her health, in consequence of which she left him. After this, the plaintiffs furnished her, at her request, medical attendance, nursing, and board, she pledging the defendant’s credit for the same. Hutson made a bill against the wife, but was told by her that the defendant was obliged to pay it. The services, etc., were necessary for her recovery, and were adapted to her condition.

Bill in Equity, to remove a cloud upon the plaintiff’s title to land in Grafton. Facts found by the court. George H. Randall had title to twenty-one sixtieths of the premises in question, April 1, 1894, and subsequently conveyed the same to the plaintiff. In 1894 the premises were assessed to the Ruggles & Randall Mica Company, in the non-resident list, and were afterwards sold by the collector for the tax of that year and conveyed to the defendant Watson.

Petition, for habeas corpus. The petitioner was duly summoned to give her deposition, to be used in an action brought against her by Carrie E. Whitcher for the alienation of the affections of Charles C. Whitcher, husband of Carrie E., and in which it is alleged that the petitioner committed the crime of adultery with Charles C. at divers times from 1894 to May 1, 1899.

Assumpsit, for an assessment upon corporate stock. Plea, the general issue. Facts found by the court. The corporation was formed under the general law, in May, 1893, with a, capital of $2,500, divided into 100 shares of the par value of $25 each. The associates took no steps to have the stock subscribed, but the defendants without authority obtained subscriptions for 107 shares.

Trover, and Assumpsit with common counts, including one for money had and received. Facts agreed.

Case, for injuries to the plaintiff, an employee of the defendants, by their alleged negligence in maintaining unsuitable ties in their yard in Lancaster. Trial by jury. The evidence tended to prove that the plaintiff was thirty-seven years old, and had worked at railroading most of the time since he was seventeen years old, as a trackman, as a shop hand, and as a brakeman and conductor on freight trains running in and through the Lancaster yard.

<p>A tenant at will cannot terminate Ms tenancy without the landlord’s assent, except by the notice in writing required by the statute.</p> <p>One familiar with the capacity of a building, the amount paid as rent therefor, and the proportionate space occupied by goods stored therein, is qualified to testify as to the value oí such storage.</p> <p>Assumpsit, fox rent. Facts found by a referee. The defendant hired the premises, situate in Keene, for an indefinite period, at a rental of $12 per month. November 20, 1897, the defendant sent the plaintiff word that he intended to vacate about the middle of December. The plaintiff never waived her right to a written notice. The premises were vacated December 15, 1897.</p> <p>The defendant filed a set-off for the storage of goods. When the defendant took possession, a part of the house was occupied by goods belonging to the plaintiff, who promised to pay the defendant a reasonable sum fox allowing them to remain. The referee found that $39.42 was due the plaintiff, and $20.05 due the defendant.</p> <p>Subject to the plaintiff’s exception, the referee found that the defendant’s wife was qualified to testifiy concerning the value of the storage. It appeared that she had acted as agent for her husband, had examined the premises, agreed upon the rent to be paid, paid the rent, and transacted all the business of her husband, who was absent, but she knew nothing about the usual charges for storing goods in Keene. Judgment was ordered for the plaintiff for $19.37, and both parties excepted.</p>

Bill in Equity, to determine the title to real estate.' Facts found by a referee. The bill was dismissed, except as against George F. Thompson and Eleanor Boyce.

Assumpsit, to recover on policies of insurance, and Petitions, by the insurers, for the appointment of arbitrators. Facts agreed. The policies. were in the standard form. The insurance was upon furnishing goods and clothing. The fire occurred February 4, 1899.

Bile in Equity. Facts found by a referee. August 1,1893, the defendant Currier, having recovered a judgment against Samuel W. Thompson, caused the execution to be levied upon Thompson’s equity of redemption in Pinkham’s Grant, which the sheriff sold to Currier and Pease. December 1, 1893, Currier and Pease filed a bill in equity against Thompson and his wife Eliza, and others, for an injunction to restrain them from cutting timber on the land and for other relief.

<p>Bill in Equity, for the construction of the will of Louise Low Benton. Facts agreed.</p>

Bill in Equity, by the trustee in bankruptcy of the estate of George W. Seward, to enjoin the defendants from prosecuting several suits at law, and for other relief.

<p>If testimony in relation to an immaterial matter is elicited upon cross-examination, it is not open to contradiction for the purpose of disparaging the credibility of the witness.</p> <p>The erroneous admission of prejudicial evidence, in contradiction of testimony as to an immaterial matter elicited upon cross-examination, is sufficient cause for setting aside a verdict.</p> <p>Where trespass to the person is occasioned by malice on the part of the defendant, the plaintiff is entitled to damages for injured feelings, although no physical injury is inflicted.</p>

Petition, for a writ of mandamus, to compel the payment to the plaintiffs of an appropriation made by the city of Portsmouth “for decorating graves of soldiers and sailors.” Facts found.by the court. One half of the appropriation was paid to the General Gilman Marston Command of the Union Veterans’ Union, and one half was offered to -the plaintiffs, who claimed the whole under section 1, chapter 34, of the Laws of 1899.

<p>A bill in equity sotting forth an agreement between heirs-at-law to join in the contest of a will, share the expenses incident thereto, and divide the proceeds thereof, and alleging the receipt by the defendant of an unknown amount through compromiso, states facts sufficient to entitle the plaintiff to a discovery and an accounting.</p>

Petition, under section 5, chapter 205, of the Public Statutes, as amended by chapter 81, Laws 1899, signed by the selectmen of the town of Derry, for the ^abatement of a liquor nuisance in that town, and to enjoin the owner and occupants. Facts agreed. The nuisance complained of was alleged to be carried on by the defendant Piper and one Gray, in a building situate on South Avenue, and owned by one Sartwell., The petition was filed August 24, 1899.

Bill in Equity, praying that a deposit standing in the name of Nathaniel Jackson, Jr., be decreed to be a part of the testator’s estate. Nathaniel Jackson, the testator, had a son Nathaniel, who died in 1876, leaving a son Nathaniel, who is one of the defendants. Between 1882 and 1887, the testator deposited money in the defendant bank, in the name of Nathaniel Jackson, Jr. He did not intend by so doing to make a gift, and retained the bank-book until his death in 1898.

Petition, by a landowner, under sections 12 to 19, chapter 142, of the Public Statutes, for the assessment of damages to her land -by the use of the defendant’s dam, situate on the outlet of Lake Waukewan in Meredith. The case was heard by a committee.

<p>Indictment, for engaging in the business of fishing for lake trout, with intent to sell the fish caught. It was agreed that, if tlie statute under which the indictment was found is constitutional, a verdict should be directed for the state.</p>

Bill in Equity, for the construction of a will. Facts agreed. Isabella Remick, a resident of Tamworth in this county, died January 10, 1892, leaving real and personal estate in this county and also real estate in Maine.

Case, for arrest aud false imprisonment. The plaintiff acted as collector of taxes for the town of Freedom in the year 1896, under a warrant without a seal. The warrant required him to pay to the treasurer all taxes collected, upon demand.

<p>One who addresses offensive, derisive, or annoying words to another in any public highway is punishable under section 2, chapter 264, of the Public Statutes.</p>

Replevin, for four calves. Facts found by the court. The defendant impounded four calves found doing damage in his inclosure. The damage consisted in eating some apples that had fallen from the trees, and cropping and treading down grass, and did not exceed ten cents in actual value. Upon these facts a verdict for the plaintiff was found, which the defendant moved to set aside for error in the application of the law to the facts.

Information, by the county solicitor, filed December 28, 1899, alleging that the defendant is the owner and occupant of a certain building in Ilooksett, that at the time of the filing of the information, and during the six months next preceding, the building was used for the illegal sale and keeping for sale of spirituous and malt liquors, wine, and cider, and was a common nuisance, and praying for an injunction to abate the same.

The counsel for the Rolfes, in his argument to the jury, made no claim that the Boston & Maine Railroad was negligent in fact. The following extracts from the argument of Sargent’s counsel have reference to the railroad’s liability: “We find here that there is an allegation of carelessness. ... I don’t know why, under the circumstances, the railroad was brought in here. . . .

Case, to recover damages for an injury received by the plaintiff, November 24, 1896, on Marion street, M West Manchester, while in the employ of the Manchester Electric Company as a lamp-trimmer.

The eirst case is assumpsit and trover, to recover for the defendants’ refusal to transfer fifteen shares of their capital stock standing in the name of Eliphalet S. Nutter and indorsed to the plaintiff, the transfer being refused because - Nutter’s executrix notified the railroad that the stock was the property of the estate. The second case is a bill of interpleader filed by the railroad immediately after the suit at law was brought.

<p>The representations of an agent as to the condition of leased premises, of which he had the exclusive care, are not binding upon his principal unless they were made at the time of the contract of letting and constituted a part of the res gestm.</p> <p>In the absence of warranty or covenant to repair, a lessor is not liable for injuries resulting to a lessee from the act of an agent in withholding information as to the defective condition of the premises, unless there is such a 'concealment of defects not open to ordinary observation as to amount to fraud or deceit.</p>

Bill in Equity, by taxpayers of Hillsborough, to restrain the town and its officers from appropriating money to an unauthorized and illegal use. Pacts agreed.

<p>Probate Appeal. John Tilton, deceased, left a will containing the following provisions: “ T bequeath and devise all the residue and remainder of my estate, both real and personal, to my beloved wife, Mary E. Tilton, if she shall survive me, for and during the term of her natural life, that she may have the use and income therefrom, without impeachment of waste, for her support and maintenance, and, if such use and income prove insufficient therefor, then so much of the principal as may be necessary thereto, with full qxrwer to sell, convey, invest, and reinvest the same in her discretion. I bequeath and devise whatever may be left unexpended of my said estate as aforesaid, upon the decease of my said, wife, to my three children, Frank H. Tilton, Osman B. Tilton, and John L. Tilton, to them, their heirs and assigns forever, in equal shares. I appoint my said wife, Mary E. Tilton, executrix of my will, and it is my wish that she shall not be required to give bond or furnish sureties in her said capacity as executrix.”</p> <p>The plaintiffs are the children, and the defendant is the widow, named in the will. The defendant, having filed a bond to pay debts, was granted letters testamentary, August 27, 1896. She has filed an inventory of the estate. This is an appeal from the decree of the probate court dismissing the plaintiffs’ petition for an accounting by the defendant. The question whether she is bound to account was reserved.</p>

Assumpsit. Facts found by a referee. The plaintiff, by reason of bis deceased son’s membership in the defendant order, is entitled to recover certain “ sick benefits ” and a “ funeral benefit,” except as he is precluded by the terms of his son’s contract of membership.

Indictment, for felonious assault upon a woman child under the age of sixteen years. Trial by jury. Yerdict, guilty. The respondent objected to all jurors who sat in a similar cause against one Stone, which was tried just previous to this. Upon inquiry, the jurors were found to stand indifferent, and the objection was overruled, subject to exception.

<p>Assumpsit, for goods sold. The facts are stated in the opinion.</p>

Assumpsit, to recover money paid upon a contract to purchase real estate. The plaintiff hid off the defendant’s real estate at an auction sale, and paid $200 on account of the purchase price. The, defendant subsequently tendered a deed of the land, executed in due form except that it was not signed by her husband, who is an alien and has always resided in Ireland. The defendant has lived in this state, separate from her husband, for many years.

Petition, for tax abatement. The plaintiffs paid December 1, 1897, the tax in question. Under the decision in this case at the last term (ante, p. 200), the plaintiffs moved for judgment for $28,446.64, and interest thereon from December 1, 1897, at six per cent. The defendants claimed the plaintiffs could have judgment for $26,062.91 only, without interest; and that if interest were allowed, it should be at a less rate than six per cent.

<p>The master is not liable for an act of his servant beyond the scope of the latter’s employment, which was hot directed by the master or occasioned by any fault on his part. ,</p> <p>Case, for injuries received by being shot while in the defendants’ freight yard in Manchester, by Thomas J. Saxton, an employee of the defendants.</p> <p>The plaintiff testified that he went to the freight yard oh January 15, 1899, as he had frequently done, to see if there were cars of coal consigned to local dealers, so that he might apply for a job of shoveling. While in the yard he heard shouting and saw men running. Saxton walked up to him, seized lfim', asked Mm where he was going, and started to draw a black-jack, whereupon the plaintiff broke away and ran about a hundred feet, when he was shot m the back. He made no assault upon Saxton.</p> <p>Saxton testified that he was employed by the defendants to clean and care for the lamps in the freight yard. Prior to the day of the shooting, he had driven from the yard certain persons, denominated the “scut beer gang,” whose habit it.was to loiter there, and who had fought with him and made threats against him. He reported these affrays to the defendants’ agent, and was told to look out for himself. On January 15, 1899, Saxton saw members of the “ beer gang,” the plaintiff being’ one of the party, going toward the freight'yard. He followed them and found the plaintiff on the watch. After an unsuccessful attempt to seize the plaintiff, Saxton ran down the yard, and seeing others gathering, apparently to make a fight, fired a revolver at the end of a freight car for the purpose of frightening the crowd and protecting himself. He did not think the bullet could have hit the plaintiff. Saxton was not an officer or a watchman. He had no orders to drive the “ beer gang ” from the freight yard, and was required only to report their presence there; but whenever he saw them going to the yard it was his practice to follow them and order them off the defendants’ premises.</p>

<p>Assumpsit, to recover upon the following agreement, to which each of the defendants subscribed: “We the undersigned subscribe for the number of shares (at fifty dollars each) set opposite our names, for the purpose of pubhshing a New Hampshire morning Republican paper, to be located at Nashua, subscriptions to be paid 25 per cent quarterly from Oct. 1, 1891. The capital stock must be not less than $30,000.” In furtherance of the purpose expressed, a corporation was formed in December, 1891, with a capital “fixed at $40,000, of which $39,000 was subscribed for on the book, and three responsible men agreed to take the balance,” but failed to do ,-so.</p> <p>One(Townej/ secured substantially all of the subscriptions, including the defendants’, upon a book winch has since been in the possession of the corporation. He was one of the first subscribers, one of the incorporators, and was elected manager of the *horporation upon its organization. Subject to the plaintiffs’ exception, testimony was introduced tending to prove that Towner, in order to induce the defendants to subscribe, falsely represented to them that the “Nashua Telegraph ” had been purchased for the company and the Associated Press reports secured for the paper, together with evidence that the subscriptions were given on the strength of these representations. Verdicts were directed for the plaintiffs, and the defendants excepted.</p>

<p>^ Case, for negligence. Verdict for tlie plaintiff. The defendants, while running an electric car in a public street in Manchester, struck and killed the intestate, an infant three years old, who had left his home unobserved ten minutes before the accident. His mother was ill in bed, and his father was away at workT/ The plaintiff’s evidence tended to prove the following facts: When the car was about fifty feet from the place of the accident, the child was within four or five feet of the track, walking slowly toward it. Apparently the motor-man did not notice him. The car was running twelve to fifteen miles an hour, and the motorman did not put on the brake in season to avoid the injury. The accident occurred on the afternoon of a summer day, and there; was no obstruction to prevent the motor-man from discovering the; child sooner than he did. The car had no fender attached to; It. If there had been one, the danger of injury would have been much less.</p> <p>The defendants’ evidence tended to prove that the child started, suddenly from the side of the street to cross the track, when the car was nearly opposite to him, and that the motor-man, on account of excitement, failed to reverse the power.</p> <p>Subject to the defendants’ exception, the intestate’s father was. not allowed to testify upon cross-examination wlipther or not he permitted the intestate to go out unattended, j The defendants, excepted to the refusal of the court to Instruct the jury as follows e</p> <p>1. If you find that the child strayed into the street by reason of the negligence of its parents, .and this contributed to the injury, the plaintiff cannot recover. •</p> <p>2. If yon find that the motor-man was acting under excitement at the time of the accident, and by reason thereof erred in what lie did,— that is, used the brake when he ought to have used the reverse,— it was not negligence.</p> <p>8. If you find that the motor-man, up to the time of the accident, was in the exercise of due care, and that when lie saw the danger the child was in he acted under the influence of sudden excitement, and on that account erred in judgment by using the brake instead of the reverse lever, his conduct in so doing was not negligence.</p> <p>I. If you find that such a fender as the defendants could have-conveniently used upon the car at the time of the accident probably would not have saved the life of the child, the absence of it was; not negligence and cannot be considered in determining the question of the defendants’ liability.</p> <p>The court instructed the jury in part as follows: “ It was the duty of the defendants to use due care to select competent servants, to manage their cars, and if they failed to exercise such care, they were negligent. ... It was the duty of the defendants to equip-their cai's with such safety appliances as men of average prudence would use under the same circumstances. They were not hound to adopt all such devices as are put upon the market; hut if they failed to use such safety appliances as reasonably prudent men. would use in the same circumstances, they were negligent.” Subject to the defendants’ exception, the court refused to qualify tliese instructions by adding, “ if the failure to make the proper selection of servants or furnish the proper appliances contributed to the accident or injury,” for the reason that the qualification asked for was contained in another part of the charge.</p>

Case, to recover for injuries received August 26, 1894, in the railroad yard at Portsmouth, by the derailment of an engine of tlie Concord & Montreal Railroad on which the plaintiff was fireman. The plaintiff was the servant of the Concord & Montreal Railroad. It was alleged that the' derailment was due to the defective condition of the track, which was owned and repaired by the Boston & Maine Railroad. The suit was brought against both corporations.

Assumpsit, to recover upon the following agreement, signed by the defendants’board of education: “Received of the administrator of the estate of George E. Stiles three hundred seventy dollars, the same appearing to be the amount of cash due from him as treasurer of the board of education of Brookline, New Hampshire ; and it appearing from the statement of his administrator that this money was not kept distinct and separate from other money of his, it is agreed on the part of…

Case, for personal injuries alleged to have been received by the plaintiff while a night watchman in the defendants’ mills, by reason of their neglect to provide him a safe place in which to work.

Appeal, from the police court of Manchester. The complaint charged the defendant with riding a bicycle on a sidewalk, contrary to the provisions of section 1, chapter 93, Laws 1897, which provides in substance that no person over twelve years old shall ride a bicycle on a sidewalk.

<p>Covenant Broken. Trial by the court. The defendant’s father conveyed a tract of land to the plaintiff in 1893, by warranty deed in common form, and died in March, 1895. An administrator of his estate was appointed the same month. The plaintiff had been evicted from the premises the preceding February. He presented this claim to the administrator, but made no further effort to enforce it until March, 1899, when he begun this action. At the close of the plaintiff’s evidence a nonsuit was ordered, subject to exception.</p>

Petition, for a writ of mandamus to compel the insurance commissioner to license the plaintiffs to engage in the surety business in this state. The plaintiffs allege that they are a Maryland corporation, empowered by their charter to engage, among other things, in the surety business, that they have complied with the laws of this state in relation to foreign surety companies, and are entitled to such a license.

Petition eor Partition. Facts agreed. The Berlin Shoe Factory was organized as a corporation for the purpose of building a factory in Berlin in this county. January 15, 1896, the corporation conveyed its land and buildings, which cost $40,000, to the town of Berlin for $15,000. At the date of the conveyance the factory was occupied by Chick Brothers, who have ever since held the premises under a lease from the corporation.

Case, for negligence. From a highway in Shelburne, a road runs across the defendants’ track to the Ingalls farmhouse, occupied by the plaintiff, where it ends. Since about 1850, when the railroad was built, gates have been maintained across the road on •either side of the track, but there are no cattle guards or fences •at the crossing. August. 22, 1897, the plaintiff’s horses passed through one of the gates and down the track, where they were killed.

The wood cut by the defendants was worth on the stump $30.15; after cutting, on the lot, $43.52; and in the market, $58.52. The defendants knew that the plaintiff claimed the wood, and were forbidden by her to cut and carry it away. The plaintiff moved for judgment in her favor, and the defendants for judgment in their favor.

<p>A tenant by the curtesy may maintain an action for obstruction of a way appurtenant to premises so held by him, independently of the owners of the fee.</p> <p>Where a farm crossing established for the accommodation of a landowner has been rendered unsuitable and inconvenient by reason of an increase in traffic, the railroad company may be authorized to change its location, under section 14, chapter 159, of the Public Statutes.</p> <p>A landowner is not entitled to damages for a necessary change in the location of a farm crossing established for his accommodation, nor for the obstruction of the original way subsequent to the completion of the new crossing; but he may recover for any unreasonable delay to which ho has been subjected, and is entitled to nominal damages for an unauthorized change in location by the railroad company, if the crossing provided for his use is reasonable •and suitable.</p> <p>Bull in Equity, to compel the defendants to replace a crossing of a private way leading from the plaintiff’s premises over the defendants’ tracks to a public highway, and an action of law to recover damages for the obstruction and removal of the crossing. Facts agreed.</p>

Case, for personal injuries. Trial by jury and verdict for the plaintiff, whose evidence tended to prove that on April 3, 1899,. he was a man of average intelligence, thirty-three years old, and employed by tbe defendants in their mill to set up and repair machinery. His work took him to every part of the mill, and on that day he, with others, was in the fourth story putting up a bridge-tree.

Case, for injuries received by the plaintiff in a fall from a plank sidewalk in York, Maine, in consequence of the defendants’ negligence in constructing the walk three or four feet perpendicularly above the level of the Mghway without a railing’, thereby rendering the highway unsafe for travelers. Trial by jury and verdict for the plaintiff. The defendants were incorporated by an act of the Marne legislature (Me.

Assumpsit, fox services as police officer. Facts agreed. The plaintiff was a police officer of Exeter by appointment of tlie board of police commissioners for the town, under chapter 188, Laws 1895 ; and there is a balance due liim for services at the rate of pay fixed by the board.

<p>Where a deed of trust provides that the premises described therein shall be conveyed to the cestui que trust after the death of a tenant for life, the legal title to the remainder vests upon the determination of the particular estate, by force of the statute of uses, without the formality of a conveyance.</p> <p>A conveyance by a trustee which is not made under a power conferred by the trust deed, nor in execution of the trust, transfers only his interest in the premises; and the written assent thereto of the cestui que trust does not operate as a conveyance of the latter’s estate.</p> <p>The nature and extent of the right acquired under a deed cannot be determined as against a deceased grantee in a proceeding to which his legal ' representative is not a party.</p>

<p>Under section 11, chapter 128, Laws 1844, providing that when the net receipts of a railroad corporation shall exceed the average of ten per cent per annum on its expenditures from the commencement of operations the excess shall be paid into the treasury of the state, such percentage is to be computed upon the sum actually contributed by the stockholders, and not upon the entire amount expended in the construction of the road.</p> <p>In an action to recover the excessive receipts of a railroad corporation, it is incumbent upon the state to establish the fact that dividends paid to stockholders in excess of the legal amount came from the earnings or net receipts for the use of the road ; and it cannot prevail when it appears that such sums were derived from sources other than tolls collected of the public.</p>

Bill in Equity, by the executor of the will of Lucy B. Smith, for instructions. Facts found, by the court. The will contains the following bequest: “ To George Annable of said Portsmouth, three hundred dollars, to be held by him and applied at his discretion for the benefit of Salome B. Stayers.” Annable and Salome B. Stayers both died during the lifetime of the testatrix. Salome left one son, Andrew L. Stayers, who is now living. The will contains a residuary clause.

<p>Bill in Equity, for a construction of the following provisions in the will of Clarissa W. Durrell:</p> <p>“ The annual income of all the rest and residue of my estate, real and personal or mixed, after the payment of my just debts and charges against my estate, I give and bequeath unto my sister, Abigail M. Tompson, and my niece, Mary H. Tompson, and to the survivor of them. And in case my niece, Mary H. Tompson, should marry before or after the death of my said sister Abigail, my will is that upon the decease of my said sister and after the marriage of my said niece all the remainder of my estate shall be paid in equal portions unto my nieces and nephew herein named and the survivors of them, viz.: Mary H. Tompson, Abra D. Nowell, Mary Blodgett, Ann Sarah Griffin, Aba D. Wiggin, Margaret M. W. Beebe, and Andrew W. Tompson. And my will further is, in case my said niece, Mary H. Tompson, should die before marriage and after the death of my said sister, that all said remainder of my estate shall be paid equally to my said nieces and nephew herein above named and the survivors of them. And my will further is, in case my said sister shall survive my said niece, Mary H., that after the decease of my said sister all the said remainder of my estate shall be paid equally to my said nieces and nephew above named and to the survivors of them.”</p> <p>The nieces and nephew here named were all the persons in being at the date of the will who bore that relationship to the testatrix ; and they and the sister all survived her. Mary H. Tompson died April 21,1900, never having married. The sister, Abigail M., died previously, as did also Nowell,. Beebe, and Andrew W. Tompson. The three last named left issue, who, with the surviving nieces (Blodgett, Griffin, and Wiggin), are the defendants. The administrator with the will annexed asked whether the word “ survivors ” refers to those who survived the testatrix, or those who survived Mary H. It was ruled that it refers to the former, and Blodgett and Griffin excepted.</p>

Case, for negligence. The plaintiff was struck and injured by a train consisting of a locomotive with six freight cars attached, while he was attempting to cross the tracks in the railroad yard at Somersworth. The place of accident was not a highway, but was a crossing provided by the defendants for the use of pedestrians having business with the Great Falls Manufacturing Company, and was known as the counting-room crossing.

Assumpsit, upon a special contract. Facts found by a referee. Tbe plaintiff is a manufacturer of paper boxes in Rochester.

<p>Whiskey kept for sale in violation of law is not subject to seizure upon a complaint charging the unlawful keeping for sale of lager beer and other malt, spirituous liquor.</p> <p>Libel, for forfeiture of liquor kept for sale in violation of law and seized upon a warrant issued upon a complaint, the material part of which is as follows: “ Hayes L. Whiting . . . did unlawfully keep for sale a large quantity of lager beer and other malt, spirituous liquor, to wit, one hundred gallons of lager beer and other malt, spirituous liquor.” Upon this complaint a warrant was issued, both lager beer and whiskey wrere seized, and the libel was subsequently filed.</p>

Bill in Equity, by Mary J. Carter, William C. Sinclair, and others, against the Strafford Savings Bank, Betsey Brown, and others, praying that the bank be ordered to pay to Sinclair the money evidenced by deposit book No. 5,010. Trial by the court. The plaintiffs Carter, Smith, Stillings, and Lucie E. Sinclair, and the defendant Betsey Brown, are the only surviving members of the Ladies’ Circle, an unincorporated voluntary association, organized in 1878.

Bill in Equity, for the ascertainment and enforcement of public and private rights in Sunapee lake. Facts found by a referee.

Bill in Equity, by the heirs of the late John H. Pearson, praying for a decree declaring a trust created by his will void. The defendants are the executors of the will and the attorney-general of the state. The executors have filed an answer, which they ask to have considered as a cross bill, in which they pray for advice and direction as to their duty in respect to the clause of the will in question.

Case, for creating a nuisance to the plaintiff’s injury. Trial by jury and verdict for tlie defendants. Tlie plaintiff owns a lot of land with a house upon it, in Concord. The land adjoining slopes toward tlie west, and, at a distance of about one hundred feet from the house, is low and wet.

Assumpsit, for an- indemnity under a benefit certificate. Facts agreed. The certificate contains the following provisions: “ A disability to constitute a claim for sickness . . . shall require absolute, necessary, continuous confinement to the house for not less than fourteen days. . . .

On the westerly side of Prospect street, a public highway in Franklin, there is a sidewalk, a part of which, about 150 feet long and six feet wide, is made of plank.

.Hill in Equity, praying for specific performance, etc. Facts found by a referee.

Probate Appeal. Facts agreed. Tlie defendant, Stephen D. Nickerson, and the plaintiff’s testatrix, Martha J. Nickerson, were married in Maine in 1891, and lived together there until April, 1892, when the testatrix informed her husband that she intended to leave him. Thereupon they agreed to separate, and he executed a writing as follows: “ This is to certify that I, Stephen II.

Cask, for personal injuries. Trial by jury. At the close of the plaintiff’s evidence a nonsuit was ordered, and he excepted. The evidence showed that he was run over by an engine, October 18, 1897, while in the defendants’ station in Concord. He was not there on business with the defendants, but for his own convenience. Other facts appear in the opinion.

Assumpsit. The plaintiff’s evidence tended to prove that he was injured in 1896, while working for the defendants, and released them from liability on account of his injury in consideration of the promise of John II. Brown, their claim agent, that they would give him $500 and furnish him steady employment during good behavior. They paid the money and furnished him some work for two or three years, but have failed to give him steady employment.

Petition, for the abatement of the taxes assessed upon the estate of Joseph B. Rand in Pittsfield in 1899. Rand was a resident of Vermont. The plaintiff is a resident of Pittsfield, and was appointed administrator of Rand’s estáte by the court of Vermont. The estate, consisting of notes and bank stock, was in Vermont when Joseph B. died, and has since remained there. It was taxed both in Vermont and in Pittsfield. The Vermont tax has been paid.

After the suit was brought, a roof-like structure was erected over that between the front and rear buildings, and'beneath this the defendants were accustomed to hang washings upon clotheslines running from post to post. They testified that this arrangement was necessary to protect the clothes from the dirt and filth which the plaintiff’s tenants on the fourth floor were accustomed to throw out.

^ Assumpsit, to recover upon a stock subscription. Verdict for the plaintiffs. Two defences were set up: that the stock was not fully subscribed, and that the subscription was obtained by fraud.

<p>Interest allowable upon claims against an insolvent bank should, be computed to the date of the appointment of the assignee.</p> <p>The holder of a promissory note may assert his claim against a guarantor without demand upon the maker or notice of his default, and is not required, in proceeding upon the guaranty, to elect whether he will ultimately attempt to recover payment of the principal debtor.</p> <p>"Where a bank has guaranteed the payment of a promissory note, the holder may prove a claim in insolvency upon the guaranty for the full amount due, without regard to security given by the original debtor ; but where the bank has issued a certificate of deposit, the value of collaterals given to secure its payment should be deducted from the amount due in the allowance of the claim.</p> <p>A beneficial owner of trust funds is not entitled to a preference over general creditors of an insolvent trustee unless the money can be traced into specific property in the possession of the assignee.</p> <p>A claim for wages against an insolvent bank, in process of dissolution under the laws of this state, is not entitled to a preference by virtue of a statute of the state where the services were rendered.</p>

Petit ton, by the assignee of the Granite State Provident Association, for a decree as to the distribution of the funds in his hands. The facts appear in tlie opinion.

Probate Appeal, from the allowance of the plaintiff’s claim against the S. C. Forsaith Machine Company, insolvent debtors. Trial by jury and verdict for the plaintiff. The plaintiff claimed damages for the loss of a hand, April 6, 1898, alleged to have been caused by the negligence of his employers.

<p>A legislative charter is to be so construed as to exclude an exemption from the operation of general law, when such interpretation cam fairly be given to the language used and a contrary purpose is not plainly and clearly expressed.</p> <p>A petition under the flowage act for the assessment of damages cannot be maintained by a landowner against one who claims no right of flowage under the act.</p>

Assumpsit, by the assignee in insolvency of the estate of Joseph Dignam, to recover the proceeds of the sale of fixtures in the store of the insolvent. Facts agreed. July 23 1895, Dignam executed a mortgage to Eleanor Ferguson of “ all stock in trade and fixtures now situate in store No. 797 Elm St., Manchester,” to secure the payment of a debt of $1,000 due her from him.

<p>Case, for negligence. Trial by jury and verdict for the plaintiff. In 1898 the plaintiff was a weaver in the employ of the defendants. In the performance of his work he had occasion to go through a passageway between two machines in the mill in which he was employed, which passage, with the defendants’ assent, had for a long time been used by their servants for the purpose which the plaintiff attempted to make of it. An iron ■shipper rod projected from one of the machines into the passage. •The plaintiff struck his leg against the rod and was injured. He had never used the passage before, but he had seen it used by operatives and overseers. The light in the space was obstructed. The machines were dark green, the shipper rod was dark, and the floor between the machines was dark brown in color, all of which tended to make the place where the shipper projected dark. The plaintiff looked between the machines to see if there were any obstructions, but saw none. By reason of the darkness the rod ■could not be seen, and the plaintiff did not know of tlie obstruction.</p> <p>Tbe defendants’ motions for a nonsuit and that a verdict be directed for them were denied, subject to exception.</p>

Assumpsit, for money had and received. Facts agreed. Between April, 1895, and March, 1897, the plaintiff’s intestate was arraigned before the police court of Manchester upon sundry complaints charging that he kept spirituous liquor for sale contrary to law. In each instance he pleaded guilty or nolo contendere, and was fined $50 and costs for the first offence, and $100 and costs for subsequent offences.

Bill in Equity, praying for an injunction to restrain the defendants from removing flashboards from the plaintiffs’ dam. Facts found by a referee.

Bill in Equity, to enforce the individual liability of the directors of the Mont Vernon Hotel Company. Answer, that the cause of action did not accrue within six years, etc. Facts found by the court. The Mont Vernon Hotel Company is a New Hampshire corporation, and the defendants were directors during the years the debts in question were contracted.

Case, for negligence. The plaintiff was a hod-carrier, employed by the defendants upon a mill which was being built a story higher. His evidence tended to prove the following facts: There was an opening in the fiat roof of the mill through which a ladder had been erected for the use of the workmen. The ladder was secured at the top by cleats of wood, one on either side, nailed to the roof and converging so that the ends tended to hold the ladder in place.

Debt, by the receiver of tbe Union Stock Yards State Bank, a state bank of Iowa, against one of the shareholders, a citizen of JSIew Hampshire, to collect an assessment to pay the debts of the corporation, made as prescribed by the statutes of Iowa.

Claim, for fees in state cases. The plaintiff, who is a police •officer, testified before the grand jurjr in several cases on the same day. In some instances more than one indictment was found on the same evidence. He was also a witness in the police court in some of these cases.

<p>A fire insurance policy on a mill building,' and all additions thereto adjoining and communicating, covers an engine-house and dry-house connected with the main structure by a movable bridge.</p> <p>Debt, on a policy of insurance. Trial by jury. The plaintiff is a pail-maker. His plant consists of a frame mill building with .an addition built on to it, a dry-house about twelve feet from the main building, and an engine-house about four feet from the dry-house. The engine-house and the dry-house are connected with the main building by a movable bridge. All the buildings are occupied by the plaintiff for the purposes of his business, and are •commonly spoken of as his pail shop. The agent who wrote the policy was familiar with the premises. The engine-house and the ■dry-house were damaged by fire, May 17, 1899. A nonsuit was ordered on the ground that they were not included in the policy, and the plaintiff excepted.</p>

Bill in Equity, by tlie executor of Lucy I). Jones, for the construction of tlie residuary clause in her will. Facts agreed.

Bill in Equity, for a construction of tlie following provision in the will of Charles H. Dole, in respect to the rights of Amanda L. Dole: “ I give and bequeath to my wife, Amanda L. Dole, all the real estate and personal property that 1 possess, and all money, during her natural life; after her decease, I will what may be left to Clara A. Dole during her natural life; after her decease, I will and bequeath Mrs. Olen D. Cram one thousand dollars, and to Susan M. Hall one…

Bill in Equity, by the -trustee of the estate of George F. Dudley, adjudged a bankrupt November 6, 1899, against Dudley, his wife (Nellie M.), Franklin P. .Rowell, and the First National Bank of Newport, to set aside a mortgage for fraud. Facts found by the court.

Trover, for goods described in a sheriff’s receipt. Facts found by a referee. March 19, 1898,' the plaintiff attached the goods as the property of one Moulton, and on May 11 judgment was rendered in favor of the attaching creditor. The defendant pleaded title in himself. Prior to February 28, 1898, Moulton was engaged in trade and in cobbling in a store in Ashland. On that date, in good faith and for an adequate consideration, he sold his stock in trade to the defendant.

Bill in Equity, by the guardian of Octavia H. Heath, to compel the defendant to carry out the undertakings expressed in the. following instrument: “Gorham, N. H., June 24,1892. “In consideration of bank book No. 1262 in Gorham 5-cent-Savings Bank, representing $575.94, and also other considerations, to me made by Octavia H. Heath, I agree to maintain and support said Heath, at my house, during her life; furnishing care and medical aid, as well as clothing, etc., and at her…

<p>If an injury to a servant results from tlie co-operating negligence of a fellow-servant and tlie master, the latter is liable therefor.</p> <p>Where instructions to the jury present conflicting propositions of law, a failure to point out the inconsistency at the trial is a waiver of the right to insist upon it as a ground of exception.</p> <p>Case, by an employee, for injuries caused by negligence in not furnishing suitable materials for a staging: Verdict for the defendant. The plaintiff, while in the employ of the defendant, assisted ha erecting a staging by the side of a building owned by her. He sawed putlogs from lumber obtained from portions of a building that had been taken down, and handed them to fellow-workmen, who put. them in place and nailed them. Subsequently, while the plaintiff Avas upon the staging, one of the putlogs broke and caused an injury to him. The defendant’s eAddence tended to prove that the putlog was improperly nailed.</p> <p>The jury were instructed, among other things, as follows: “ It has been said that was due to the- carelessness of a fellow-servant; that somebody else nailed this board [putlog] as it ought not to have been nailed. If you find the injury Avas due to the Avay the board was nailed,— that the board Avas reasonably safe and would not have broken under the circumstances if it had been properly nailed,— the plaintiff has no remedy against the defendant. If you find the accident was partially due to the board being insufficient, provided the defendant was negligent in not furnishing reasonably suitable materials for a staging, and partially due to its being improperly nailed, the plaintiff would be entitled to recover.” Subject to the plaintiff’s exception, the jury were further instructed: “If you find tills board would liave field if it bad been properly nailed, the plaintiff cannot recover.”</p>

<p>Bill in Equity, to redeem from a mortgage. Facts found by a referee. The plaintiffs claimed to redeem as owners of a mortgage made by Dudley Leavitt to Jacob Benton of a one third interest in the township of Odell, excepting certain lands therein sold to one Thompson and one Jackson, from a mortgage made by Leavitt to one Holyoke of the whole township, which antedated the plaintiff’s mortgage. The main question was. whether Holyoke’s mortgage was foreclosed by him by peaceable entry and possession for one year. Whether there was such a foreclosure was submitted as a question of law by the referee, at the request of the parties, upon facts found which appear in the opinion.</p>

<p>Case, for negligence. The declaration was as follows: In a plea of the case for that the defendants are a corporation owning and operating a railroad between Berlin and West Milan in said county of Cods, and are common carriers of passengers and freight; that the plaintiff on, to wit, April 20,1896, being in an intoxicated condition and unable to take due and proper care of himself, was received by the defendants as a passenger on said railroad by the defendants; that tbe defendants’ employees had knowledge of the-plaintiff’s said condition, but permitted him to ride unguarded in the baggage-car of said train, dancing and staggering near and between the two open side doors of said baggage-car, and that after-knowledge of the plaintiff’s condition as aforesaid, and of his proximity to and danger from falling out of said doors, the defendants were able to prevent the plaintiff’s falling out of the same by the exercise of proper care; that by reason of the negligence of' the defendants’ employees in so receiving and not properly caring-for the plaintiff after they knew his condition and danger, he was thrown from said train and injured.</p> <p>The defendants demurred, assigning as grounds: (1) That the declaration did not set forth a legal cause of action; (2) that it-did not allege that the plaintiff was in the exercise of due care ; and (3) that the declaration sets forth acts and conduct on the-part of the plaintiff at the time of the injury complained of which in law amount to contributory negligence. The demurrer was-overruled, subject to exception.</p> <p>The plaintiff offered evidence tending to support the allegations of the declaration. The defendants’ motion that a verdict be directed for them was denied, subject to exception. The defendants excepted to an instruction that the defendants were chargeable with the knowledge their conductor and baggage-man had, both as-to the plaintiff’s condition and danger, and excepted generally to the charge as given. They also excepted to the refusal to give certain instructions requested in writing by them, the substance» of which was that if the jury found that the plaintiff himself was negligent, and that his negligence materially contributed to produce the injury complained of, he could not recover.</p>

Case, for personal injuries. Trial by jury and verdict for the defendants. The plaintiff claimed that while she was a passenger on the defendants’ railway she was injured by the sudden stopping of the car in which she was riding. The plaintiff’s son, who was with her at the time of the accident, testified to the nature and extent of the shock; but his testimony relative to an injury received by him at tbe same time was excluded, subject to tbe plaintiff’s exception.

<p>Bill on Exceptions, to an order of -the court denying the plaintiff’s motion for a continuance.</p>

Bill in Equity, for the determination of confused and uncertain boundaries between the parties. At the May trial term, 1899, the defendant moved that the plaintiff be required, under the 26th rule of court, to file a deposition taken by him of a witness, not a party, residing in Massachusetts. The court granted the motion and ordered the deposition to be filed by June 10 of that year.

Biel tn Equity, by the executor of the will of Lurana C. Brown, for direction in the execution of his trust. Facts agreed.

Case, for personal injuries. Trial by jury and verdict for the-plaintiff. The defendants seasonably moved for a nonsuit and that a verdict be directed in their favor. Both motions were denied, and the defendants excepted.

Assumpsit, to recover for services as an attorney. Trial by jury. The jury were instructed to return as their verdict such sum as the services were reasonably worth. No instruction was given or requested on the question of interest. There was a verdict for the plaintiff, to which he moved that interest be added from the date of the writ. The motion was granted, subject to the defendant’s exception.

Assumpsit. Facts found by tbe court. The plaintiffs com.pose tbe Laconia Fire Department, a voluntary association, of •which the defendant was formerly a member. The city pays each member $30 a year. In 1898, the department voted to give a ball, each member to sell tickets and return the proceeds to the treasurer. The defendant received and sold tickets, but has not accounted for the proceeds, although he promised the plaintiffs to do so.

Petition, under the flowage act, for the assessment of damages to the defendant’s land. The plaintiffs excepted to the following statement in the argument for Clough: “ My brother Sargent made an excuse. He said that if you dug down there when you were up there, you could have seen what was under the surface. I didn’t think of that. He did, it seems. ... If I had thought of that, I should have had it done.”

Bill in Equity, to foreclose a mortgage given by the defendants to the plaintiffs’ testator to secure their joint note. Trial by the court. Subject to exception, the defendants were permitted to show that there was no consideration for the note. The court found that the note was without consideration and ordered the bill dismissed, and the plaintiffs excepted.

Case, by the plaintiff, whose right hand was injured by the gears of a spinning-frame in the defendants’ cotton mill. The plaintiff was a doffer in the defendants’ employ. It was her duty to clean or wipe the gears on the spinning-frames at the cleaning hour, which was from 8.30 to 4.30 o’clock on every Saturday afternoon. For this purpose the frames were stopped by throwing a belt from a fixed to a movable pulley.

Replevin, for certain articles of personal property. Trial by tbe court. December 17, 1897, when tbe defendant and his son were boarding with the plaintiff, the defendant conveyed to her a pair of horses as security for all money he was then owing or might at any time thereafter owe her.

Bill in Equity, for an injunction. After the decision in this case reported in 69 N. H. 650, the plaintiff amended the bill by adding the following: “ And the plaintiff further says, on information and belief, that said defendants have not gone, and do not go, upon the said passenger station grounds, and within said passenger station building and the approaches thereto, as aforesaid, for the purpose of obtaining terms, facilities, and accommodations for the transportation of…

<p>Probate Appeal, from a decree dismissing the plaintiffs’ petition to vacate a decree granting Dakin a discharge in insolvency. Dakin died after the appeal was taken, and his administrator defends.</p> <p>The plaintiffs’ evidence tended to show that the bond to secure the performance of a composition agreement was executed by the debtor and one of his creditors, and that thereafter, and before the discharge was granted, he made a mortgage to this and three other creditors to secure the payment of a sum in excess of the amount needed to pay the percentage agreed upon. The plaintiffs also offered to show by a creditor, who was not a party of record, transactions between the witness and Dakin. The administrator did not elect to testify, and the evidence was excluded, subject to exception.</p> <p>At the close of the plaintiffs’ evidence the appeal was dismissed, subject to exception.</p>

<p>Libel fob Divorce, charging habitual drunkenness. It was found that the charge was not proven, that the libelant had deserted the libelee without cause, and that justice required that an order be made that the libelant contribute to the support of liis family. Upon the libelee’s motion it was so ordered, subject to exception.</p>

<p>Assumpsit. Trial by jury and verdict for the plaintiff.</p>

Assumpsit, upon a contract to pay a death benefit. Trial by jury and verdict for the plaintiff. The sole defence was that the deceased was suspended for non-payment of assessments. Before his death all arrearages were paid to the proper officer, and received without objection.

<p>Writ of Entry. Trial by the court.</p>

Assumpsit, to recover $155.38 for goods sold and delivered. Facts found by a referee. The defendant sought to recoup damages resulting from the inferior quality of goods sold to him by the plaintiffs at an earlier date. The damages were assessed at •$119.80. Subject to the plaintiffs’ exception, the court allowed the defendant to amend by pleading set-off, and ordered judgment for the plaintiffs for $35,53.

Assumpsit. Trial by jury and verdict for the plaintiff. In January, 1900, the plaintiff was employed by the defendant to sell his farm. The contract was not in writing. The defendant moved for a nonsuit (1) on the ground of insufficient evidence, and (2) because of the statute of frauds. His motion was overruled and he excepted.

<p>'The nominal title to the real estate in Ooneord occupied by the New Hampshire Asylum for the Insane is vested in that corporation; but the state, being the sole member of the corporation, is the real owner of all its property, and has complete and absolute control thereof, subject to the terms , and conditions upon which such property was given to and accepted by the institution.</p> <p>The legislature may require the trustees of the New Hampshire Asylum for . the Insane to convey the real estate occupied by that corporation to the state; but such conveyance would not in any way affect the state’s interest in the property.</p> <p>It is doubtful whether the justices of the court are authorized to give advice to the house of representatives when there is a possibility that the requisi- . tion therefor involves a question of private rights which may come before the court for determination.</p>

<p>Where a request for the opinions of the justices is received from the governor and council upon the day their terms of office expire, and it is apparent that answers thereto cannot be returned in season to be of assistance in the determination of the questions before them, the case is not one in which such opinions can be required, under article 73 of the constitution.</p>