Volume 71 — New Hampshire Reports

Case, for negligence. Trial by jury. Transferred from the January term, 1900, of the supreme court by Peaslee, J. The defendants maintained a line of telegraph poles carrying four wires, along a highway in Hooksett running through a large tract of woodland. The growth on each side extended to the wrought portion of the highway and was of sufficient size to bo cut into logs and cord wood.

Petition eob Pabtition. Transferred from the September term, 1900, of the supreme court upon an agreed statement of facts, by Pike, J. The plaintiff and Hannah F. Clark were married in 1856, and lived together until December, 1877, when they separated by mutual agreement. After the separation the plaintiff removed to Pennsylvania, where he has since resided.

The plaintiffs were duly organized as a corporation under the laws of Massachusetts.

<p>In an action by an indorsee against the maker of a promissory note payable in Vermont, the question whether the plaintiff’s knowledge of the payee’s fraud in obtaining the note was of such a character as to constitute a valid defence is governed by the construction of the contract adopted in that state.</p> <p>Assumpsit, upon three promissory notéis, signed by the defendants, payable to one Reynolds or bearer at a bank in White River Junction, Vermont. Transferred from the May term, 1900, of the supreme court by Oliase, J. Trial by jury.</p> <p>The plaintiffs’ evidence tended to show that they discounted the notes for Reynolds, who indorsed them in blank, before maturity, and for value. The defendants offered evidence to show that Reynolds induced them to sign the notes by fraud. This was excluded, subject to the defendants’ exception. The plaintiffs’ evidence showed that at the time of .the indorsement they had no actual knowledge that the notes were obtained by fraud, but it tended to show that the plaintiffs had knowledge of such facts, and circumstances as would lead a careful and prudent man to suspect that they were procured by fraud. Upon this evidence the defendants claimed that the question of fraud should be submitted to the jury. This claim it is admitted is substantially in accordance with the law as held in Vermont. The court ordered a verdict for the plaintiffs, and the defendants excepted. At the adjourned law term of the supreme court in March, 1901, the, court ordered the verdict set aside. Thereupon the plaintiffs filed a motion for a rehearing.</p>

Assumpsit, to recover for the publication of an advertisement in a newspaper. Tried by a referee, and transferred from the October term, 1900, of the supreme court by Parsons, J. July 26, 1896, one Andrews was the owner of the newspaper,, and before that date he began publishing the advertisement in question under a verbal contract with the defendant, by the terms-of which the publication was to be continued until forbidden by the defendant.

Certieied Case, from the board of railroad commissioners. Marcli 15, 1901, tlie supreme court granted the Boston & Maine Railroad a franchise or right to construct extensions and additions to its electric railroad in the city of Portsmouth, upon four routes which were duly set forth and described.

Petition, under section 8, chapter 76, of the Public Statutes, to be allowed to file the statement required by section 7 of the same chapter. Facts found, and case transferred from the January term, 1901, of the supreme court, by Young, J. • The surface of the highway where the accident happened is level with the top of a wall on the side line. The wall is about two and a half feet high. There was a hole' in one of the wheel tracks, which was within two feet of the wall.

<p>'The rule that a verdict will not he set aside because instructions otherwise correct are not sufficiently specific, when no request for a more definite statement has been made, does not apply to a written instruction communicated to the jury after their retirement, in the absence and without the knowledge of counsel.</p> <p>An objection after verdict, that the instruction so given was not sufficiently specific, is to be treated as an exception taken to the denial of a request for a more definite statement of a proposition of law applicable to the evidence and pertinent to the questions at issue.</p> <p>It is sufficient cause for setting aside a verdict for the defendant in an action for negligence, that the jury probably understood, from the language of an instruction communicated to them without the knowledge of counsel, that negligence of the plaintiff in creating a dangerous situation precluded a recovery, without regard to the subsequent conduct of the parties.</p>

Assumpsit, for the price of a ton of coal. Facts found, and case transferred from the October term, 1900, of the supreme court, by Blodgett, C. J. One Bean, being indebted to the defendants for labor upon a model of an appliance invented by Mm, and having been requested to make payment, informed the defendants that one of the plaintiffs, Day, was backing him, and that he would get the plaintiff company to furnish a ton of coal for application as payment upon his…

Assumpsit, for the support of a county pauper. Facts found, and ease transferred from the February term, 1901, of the supreme ■court, by Pike, J. In the summer of 1898 a question arose between the commissioners of Rockingham county and the commissioners of Strafford county as to which county was chargeable with the support of a certain pauper.

Petition, for an assessment of damages alleged to have been sustained by the plaintiff in consequence of the discontinuance of a portion of Gold street, in Laconia. Trial by jury, and verdict for the plaintiff.

Petitions, for habeas corpus. Transferred from the January term, 1901, of the supreme court by Peaslee, J. The petitioners were duly summoned as witnesses to give their depositions in an action brought by Sarah Chambers against the Manchester Street Railway, a corporation, to recover for personal injuries alleged to .have been caused by the negligence of the servants of the corporation in the management of a car upon which she was a passenger.

Biel in Equity, to remove a cloud upon title. The facts were agreed, and the case transferred from the January term, 1901, of the supreme court by Young, J. Joseph White of Portsmouth in this county, by his will probated September 8, 1829, devised certain real estate situate in Portsmouth, as follows: “I give, bequeath, and devise unto my beloved wife Mary the use and occupation of all my real estate situate in said Portsmouth, to have and to hold the said real estate for…

Trover, for a carload of wood. The wood was transported by the defendants from Randolph to Berlin for the plaintiff, who demanded it after having paid the transportation charges. The defendants’ freight agent at Berlin absolutely and unconditionally refused to deliver it, claiming to hold it for demurrage charges upon other cars of wood previously transported for the plaintiff.

The testimony for the plaintiff tended to show that he applied to the defendants for the job; that he told their agent how much he had previously run an engine; that he did not give the agent to understand he was capable of running an engine; that he told him if he would give him the chance, he would try; that possibly the agent thought he could run an engine; and that, so far as the plaintiff knew, the only information the agent had on this subject was what the plaintiff…

<p>Assumpsit. Case agreed upon facts found by a referee, and transferred from the October term, 1900, of the supreme court by Blodgett, C. J.</p> <p>The parties were formerly copartners at Concord in this county, as dealers in carpenters’ supplies. In April, 1896, the plaintiff purchased the defendant’s interest in the business. In August of that year, finding himself unable to pay the stipulated price, the plaintiff entered into an agreement with the defendant, by the terms of which the defendant was to pay him $2,700 in money, surrender the notes he held against him, and pay all outstanding bills due on account of the business ; and in consideration therefor, the defendant was to have the stock, fixtures, bills receivable, and all other property belonging to the business. In pursuance of this agreement an inventory of the stock was taken, and this, together with the books, accounts, cash on hand, and all other property relating to the business, was turned over to the defendant-on or before August 29.</p> <p>Among the claims which were outstanding against the plaintiff on account of the business when the agreement between the parties was made and concluded was one in favor of the Shepard & Morse Lumber Company, one in favor of R. B. Currier, and another in favor of the A. C. Dutton Lumber Company. The defendant subsequently refused to pay these claims, on the ground that he never assumed them. Thereupon Currier brought suit on his-claim against the plaintiff, and in defence of this suit the plaintiff paid out in attorney’s fees and expenses the sum of $321.52. The Shepard & Morse Lumber Company also brought suit against the plaintiff upon their claim, and recovered judgment therein, including debt and costs, for the sum of $633.93 ; and in defence of this suit the plaintiff paid out for counsel fees ■ and expenses the sum of $89.38. The amount due and outstanding upon the Dutton Company claim at the time of the agreement was $271.50, and upon this claim no suit was brought. The plaintiff has never paid anything on account of the Shepard & Morse Company judgment, or on account of the Dutton Company claim, and both are still wholly unsatisfied.</p> <p>Both parties admitted that claims of the creditors referred te were originally just claims against the plaintiff; but he defended the suits against him upon the ground that the defendant assumed their payment under the agreement, and also upon the ground that the suing creditors had agreed to accept the defendant as their paymaster. The defendant was not cited in by the plaintiff to defend the suits, but he knew of their pendency and had knowledge of the proceedings incident thereto. The plaintiff’s defence of the suits was justifiable and reasonable; and the expense incurred by him in the Shepard & Morse Company suit was reasonable to the extent of $63.88, and in the Currier suit to the extent of $275.</p> <p>If as a matter of law the plaintiff is entitled to recover upon the foregoing facts, he is entitled to judgment as follows : for the amount of the Shepard & Morse Lumber Company judgment, $633.93; the amount of the A. C. Dutton Lumber Company claim, $271.50; counsel fees in the Shepard & Morse Lumber Company suit, $63.88; counsel fees in the Currier suit, $275; with interest on said sums from the date of the writ.</p>

Trespass and Case, for false imprisonment. Trial by jury, and verdict for the plaintiff. Transferred from the April term, 1901, of the superior court by Peaslee, J. The plaintiff was tax collector for the town of Epsom for the year 1896.

<p>An order for the payment of money, made and accepted in good faith, is valid as against a subsequent attachment of the funds in the hands of the acceptor by a creditor of the assignor. -</p> <p>Foreign Attachment. Issue between tbe plaintiffs and tbe claimant. Trial by the court, and case transferred from tbe May term, 1901, of tbe superior court by Peaslee, J.</p> <p>The writ was served upon tbe trustee, February 26, 1898. A verdict was found against the defendant in March, 1900. Tbe trustee’s disclosure showing that be owed tbe defendant was filed in October, 1899. After the rendition of tbe verdict tbe claimant moved for and was granted leave to appear as claimant of the funds in tbe bands of tbe trustee. Up to this time tbe plaintiffs had no information of tbe claim so set up.</p> <p>At the trial of tbe issue between tbe plaintiffs and tbe claimant, it appeared that in July, 1897, tbe claimant had a claim against tbe defendant which be tried to collect, and that thereupon tbe defendant gave him an order on tbe trustee as follows: “ Nashua, N. H., July 19, ’97. Mr. F. D. Cook. Please pay to H. A. Cutter when due tbe am’t of last payment on plumbing contract, Cortland st. job, am’t being sixty-six and 25-100 dollars ($66.25). C. A. Voter & Co. V.” Across tbe face is written: “Accepted. F. D. Cook, July 19, 1897.” Subsequently tbe claimant brought suit in Voter’s name against Cook to recover tbe claim represented by tbe order, and recovered judgment in June, 1898. In that suit tbe claimant’s name was indorsed on tbe writ as plaintiff in interest.</p>

Bill in Equity. Facts' found by the court. Held: on account of existing deficiences similar votes were passed, calling, respectively, for $175 and $135 on each share of stock. All the stockholders have paid said sums, as above called for, upon all the shares held by them, except the defendant; and she, being duly notified, has omitted and refused to make any payment whatever.

Bill in Equity. The case was submitted by agreement at the November term, 1900, of the supreme court, on the bill, answer, and such portions of the articles of incorporation, by-laws, and records of the Blue Mountain Forest Association as either party might choose to lay before the court; and was transferred by Parsons, J., without any findings of fact or rulings as to the law.

Assumpsit, to recover upon a contract of guaranty. Trial by jury and verdict for the plaintiff. Transferred from the May term, 1901, of the superior court by Peaslee, J. The plaintiff’s decedent owned a promissory note secured by a second mortgage of real estate in Minnesota, and indorsed as follows: “In consideration of one per cent per annum, I hereby guarantee the final collection of the within note and coupons attached.

Petition, for habeas corpus. Transferred from the November term, 1900, of the supreme court- by Peaslee, J. The facts found by the court are stated in the opinion.

<p>Casis, for personal injuries to Junietta Challis caused by the defendant’s lack of skill and by Ms negligence. Transferred from the April term, 1901, of the superior court by Young, J. By agreement the two actions were tried together, by a jury. Verdict for the plaintiffs, who are husband and wife.</p> <p>The defendant is a physician. The plaintiffs complain that when their child was born the defendant was unskillful and negligent in his treatment of Mrs. Challis. She was badly torn, and the question was how this wound should have been treated. There was evidence that the child was born May 23, 1899; that the mother was so badly torn that when the wound was sewed up, in 1900, it required .from twelve to fifteen stitches; that the defendant attended her regularly for six or seven weeks after'the child was born, his last visit being sometime in July, at which time she was about the house; that he saw her again in three or four months after her child was born, when she was doing her work, and again before February 5, 1900.</p> <p>The plaintiffs were permitted, subject to the defendant’s exception, to ask Dr. Galvin, an expert, the following question: “ In the case, doctor, of a physician and surgeon attending a woman at childbirth, and there is a laceration of the perineum that required twelve or fifteen stitches to sew up a few months afterward, and he attends her six weeks and then she is up and able to be around some, and then he sees her again in about three months from the time of the birth of the child, what should he reasonably have done for that woman in that condition, no stitches having been taken to cure the laceration?”</p> <p>In the cross-examination of the defendant, the plaintiff was allowed to ask him, subject to exception, if he had a license when he treated the plaintiff. The jury were instructed at the time that they could consider the evidence on the question of his skill and not on the question of Ms negligence. The exception related to the ádmission of the evidence for any purpose, and not the instructions limiting it.</p> <p>In respect of the treatment of the wound the defendant asked an expert witness: “ Then if he failed to sew it up, should you say it did or did not indicate negligence on his part? ” The question was excluded, and he excepted. The defendant asked two women, who testified that they were accustomed to nurse in cases of childbirth: “In what way does his [Dr. Lake’s] treatment differ from the treatment of other physicians ? ” The question. was excluded, and lie excepted. These women had nursed in cases where Dr. Lake and where other physicians were in attendance.</p> <p>The defendant requested the following instructions, which were refused excepting as included in the instructions given, and he excepted:</p> <p>1. If the advisability of adopting a particular method of treatment in cases like the plaintiff’s is a question as to which there is a difference of judgment among members of the profession, the jury are not to consider the relative merits of the two systems, but the defendant was at liberty to act according to his own opinion.</p> <p>2. If the evidence fails to disclose open, visible connection between the negligence alleged and injury complained of, or if the facts are equally consistent with theories that would charge and discharge the defendant, this action cannot be maintained.</p> <p>On this question the jury were instructed as follows: “ The law also imposes upon the physician, for the benefit of patients, the duty of using ordinary care in the application of knowledge and experience to the treatment of patients. ' Ordinary care is the care men of average prudence would use under similar circumstances. In deciding what would be ordinary care in a particular case, it is necessary to consider the circumstances of that case; for you can readily see that what would be ordinary care in treating a case of chicken-pox might not be such care in treating a case of smallpox, and what might be ordinary care in amputating a person’s finger might not be such care in removing his vermiform appendix. To decide whether or not the defendant was negligent in treating Mrs. Challis, you can ask yourselves whether or not he did what the average physician would have done; if he did not do this, he was negligent.</p> <p>“ Tins duty of using ordinary care does not make the physician an insurer of the lives or health of his patients, nor does it mabe him a guarantor for the patient’s recovery. If he does in any particular case what men of average prudence would have done under the same circumstances, he is without fault, regardless of whether the patient does or does not recover. The fact that the patient does not recover is not evidence of the physician’s unskillfulness or negligence.</p> <p>“ The mere fact that the defendant was unskillful or negligent, or both, will not entitle the plaintiffs to recover unless it also appears that his unskillfulness or negligence, or both, contributed to cause Mrs. Challis’ condition, if her condition would have been the same if she had been carefully treated by a skillful physician, they cannot recover; for a person cannot be heard to complain of another’s fault unless he shows that he has been injured by it.</p> <p>“ For the purposes of this ease, a wrong is the cause of such results, and such only, as would not have occurred but for that wrong. So, if you find that the defendant was unskillful or negligent, or both, in order to determine whether any part of Mrs. Challis’ condition is due to the defendant’s fault you can ask yourselves whether or not the plaintiffs have suffered any loss of time or money, or have endured any pain, which they would not have suffered or endured if the defendant had been skillful and careful.”</p> <p>The defendant also requested the following instruction on the question of damages: “The defendant is not liable for consequences except in so far as they are consequences which an ordinary, reasonable man would have expected to follow from his conduct.” Tliis was refused except as included in the following, and he excepted: “You will give the plaintiffs as damages so much money and no more as will compensate them for all loss that the evidence shows you the plaintiffs have suffered as the direct and natural result of the defendant’s fault. This will include payment for all loss of time and for suffering that was caused by the defendant’s fault, but" not for the loss of time and the suffering which were the result of her confinement.”</p>

<p>A county solicitor who draws complaints and issues warrants in cases which it is his duty to prosecute is not entitled to fees as a justice of the peace, in addition to the salary fixed by statute.</p>

'Case, for personal injuries. Trial by jury and verdict for tbe plaintiff. Transferred from tbe February term, 1901, of tbe supreme court by Young, J. Tbe plaintiff’s evidence tended to prove tbe following facts: ’Tbe plaintiff was about twenty-six years old, and was employed iin tbe dry-room of tbe defendants’ printery, running a drying machine.

Trover, for the conversion of a colt. Facts found by a referee, and case transferred from the November term, 1900, of the supreme •court by Chase, J. One Bartin, who had possession of the colt, sold it to the defendant, who had no actual knowledge of the plaintiff’s claim and was not put upon inquiry so as to be chargeable with notice.

<p>Whether the denial oí an opportunity to litigate a claim for damages caused by a defective highway would constitute manifest injustice, and whether the person injured was unavoidably prevented from filing a statement of his claim within the time limited by statute, are questions of fact.</p> <p>Petition, under section 8, chapter 76, of the Public Statutes, for leave to file a statement of claim against the defendants for an injury received upon a defective sidewalk, March 15, 1898. Trial at the April term, 1901, of the superior court before Young, J.</p> <p>The plaintiff’s evidence tended to prove that while walking on the sidewalk he broke through the concrete at a point about four feet west of a culvert, and was injured; and that the breaking of the concrete was caused by water escaping from the culvert and washing away the sand on which the concrete was laid. The petition was filed September 9, 1898. The plaintiff was prevented by accident from filing his claim within the time prescribed by law. The petition was granted, and the defendants excepted.</p>

Case, for obstructing the plaintiff’s drainage, thereby causing’ her cellar to be flooded and her well to be polluted. Facts found by a referee, and case transferred from the April term, 1901, of the superior court by Young, J. The plaintiff and the defendants in 1890 and before were, and ;still are, owners of adjoining lands. There was on the defendants’ land a low place — a swamp or bog — where there was usually more or less water.

Bile in Equity. Tlie facts were found by a referee and are sufficiently stated in the opinion. Transferred from the April term, 1900, of the supreme court'by Parsons, J.

Bill in Equity, to determine the respective rights of the parties to the water-power at the Pickering dam, so called, across Smith’s river in Wolfeborongh. The dam and power are the same that are mentioned in the preceding case between the same parties, to which reference may be had for a general description. The other facts necessary to a determination of the questions in the ease are stated in the opinion.

Assumpsit, for fees. The defendant filed a plea in recoupment, and a set-off for sums paid the plaintiff in excess of legal fees, during the period between October, 1893, and September, 1897-Facts found by a referee, and case transferred from the April term,. 1901, of the superior court by Peaslee, J. The plaintiff was. sheriff of the county and served writs for the defendant, who is. an attorney-at-law.

Trespass quare clausum. Trial by jury and verdict for the defendant. Transferred from the superior court by Peaslee, J. The issue was whether the line claimed to by the plaintiff had been agreed upon by himself and the defendant’s ancestor in title. Upon this point the plaintiff and two other persons, who were present when the line was run, testified that there was such an agreement.

Petition for mandamus, by the city of Manchester and George A. Wagner, a taxpayer, against David O. Furnald and nine others, assessors of the city.

<p>Where the upper story of a building erected by adjoining owners in accordance ■ with an oral agreement is dependent upon a stairway located on one of the lots, an owner whose access is cut off by the construction of a party wall does not have a way of necessity over such stairway unless the necessity in fact exists and a grant of such way can be implied from a former unity of ownership of the two estates.</p> <p>A parol license to use a stairway as a means of access to adjoining premises is revocable at the option of the licensor and is annulled by the erection of a party wall which renders such access impossible.</p> <p>Water-closets placed in a building at the joint expense of adjoining owners are parts of the realty with which they are connected and the property of the owner thereof, in the absence of an agreement that they are to be treated as personalty.</p>

<p>On January 18 the plaintiffs filed a motion to set aside the verdict as against the law and tlie evidence. Upon application first made on April 25, a bearing was bad upon this motion at the May term of the superior court before Wallace, C. J., and Mr. Justice Earsons of the supreme court, who attended by request. Tbe defendant excepted to any action by the latter, on the ground that he was not a justice of the court having jurisdiction of matters formerly cognizable at trial terms, and claimed that the plaintiffs had waived the exceptions taken at the trial by delay and noncompliance with the fifty-third rule of court. It was found that the exceptions were not so waived, and that under the circumstances the rule ought not to be enforced against the plaintiffs. The motion to set aside the verdict was denied.</p> <p>The stenographic notes of testimony given by the principal upon the bond in a suit against othér sureties were used by agreement as a deposition. The witness having identified the signature of the defendant upon the bond, and having testified generally in behalf of the plaintiffs, was asked upon cross-examination if he knew of any defence to the bond, and replied in the negative. He was then shown a letter which he admitted was written by him to the defendant’s attorney, and after examming it said that he did know of a defence available to the present defendant which he thought would be a valid one. This jiortion of the cross-examination was read subject to the plaintiff’s exception, and was admitted with an instruction that it was material only as bearing upon the credibility of the witness. The letter' referred to was offered in evidence by the defendant and excluded.</p> <p>The defendant’s signature as surety and the breach of the bond were admitted. The defence was that, after the bond was signed and before it was delivered to the plaintiffs, the name of one surety was erased and another written over it; and that the appearance of the signatures was such that ordinary care would have disclosed the erasure and substitution to the plaintiffs before acceptance of the bond. An enlarged photographic copy presented faint lines of the writing alleged to have been erased. The plaintiffs claimed that the erasure was of a part of the defendant’s name accidentally written by him upon the line below his full signature; while the defendant denied that the words erased were in his handwriting. For the purpose of comparison the defendant introduced in evidence Iris signatures written upon stock certificates, and sworn to be genuine by Mm and by the treasurer of the corporation. The plamtiffs excepted to this evidence on the ground that the signatures were neither admitted to be genuine nor found M papers otherwise in the ease, and, further, that they appeared to have been written at a date subsequent to the execution of the bond.</p> <p>It appeared that the defendant was eighty-nine years of age, and that he was liable, if at all, for an amount exceeding the whole of Ms estate. In urging a careful consideration of the case because of its importance to the defendant, Ms counsel in closing argument said that the case involved the defendant’s life as well .as Ms property. Upon objection being made and an exception claimed, counsel withdrew the remark, requested the jury to disregard it, and apologized for the utterance; and the presiding justice considered that the error, if any, was thereby cured.</p>

The plaintiff’s evidence tended to prove the following facts: Before July 21, 1900, the day that the plaintiff was injured, he had caulked all of the edges of the tank, except those portions where the horses, some twenty in number, prevented. On the morning of the accident, the defendants moved the horses away from the inside of the tank about eight inches, so that those portions of the edges that had been covered by the horses could be caulked.

Assumpsit, for labor. Plea, the general issue, with a brief statement claiming damages by way of recoupment for breach of contract on the part of the plaintiff. Facts found, and case transferred from the May term, 1901, of the superior court, by Pike, J, In October, 1899, the parties entered into an agreement whereby the plaintiff was to cut, saw, and stick all the lumber on the defendants’ “Brown lot” in Greenfield.

Bill in Equity, alleging in substance that in 1896 the plaintiff conveyed to tbe defendant, her son, certain land in Holderness, by a deed in which she covenanted to stand seized of the land to her own use during her life and after her decease to the use-of the defendant and his heirs and assigns forever, upon the condition that if the defendant should refuse at her request to live with her on the premises conveyed, carry on the farm in a husbandlike manner, or to suitably…

Bill in Equity, by tlie executor of tbe will of Joseph F. Perley, praying tlie advice and direction of tbe court as to certain clauses of tbe will. Transferred Ironi tbe June term, 1901, of the superior court by Stone, J. The material parts of tbe will are as follows: “ 1 want my aunts Hannah, Elsie, and Lois to be well provided for during their lives and have good care to tbeix satisfaction. ...

Trover, against the trustee in bankruptcy oí V. T., for wagons, harnesses, etc. Facts agreed, and case transferred from the May term, 1901, of the superior court by Pike, J. The defendant took possession of the property as assets of the bankrupt’s estate, and sold it in the course of his duties as trustee. The defendant’s motion to dismiss the action for want of jurisdiction was denied, and he excepted.

Bill in Equity, by the city of Franklin, alleging in substance that the defendants are the owners of land adjoining a highway in the city; that surface water naturally flows across the highway and on to the defendants’ land; that many years ago the plaintiffs, built culverts across the highway, which conveyed the water on to the defendants’ land in the natural depressions; that the defendants have placed earth on their land .next to the highway, which has stopped the flow of…

Bill in Equity, to restrain the General Electric Company, a judgment creditor of the Concord Electric Company, from completing a levy on property of the latter company, mortgaged to the American Loan and Trust Company. Facts agreed. The Concord Electric Company is a corporation, formed May 29, 1901, under the general law.

Bill in Equity, against Belknap county, the city of Laconia, and the towns of Gilford and Belmont, to recover for services as county commissioner in hearing a petition to lay out a new road in the towns of Gilford, Gilmanton, and Belmont and in the city of Laconia, and for money paid to a civil engineer. Heard before Young, J., and transferred from the May term, 1901, of the superior court.

Assumpsit, for the board of prisoners confined in the jail, for the years 1898, 1900, and 1901, and the statutory fees for receiving and discharging them. Trial at the May term, 1901, of the superior court before Young, J., who ordered judgment for the defendants, and the plaintiff excepted. During the time mentioned the plaintiff was the sheriff of the county, and he appointed the superintendent of the county farm as the deputy jailer.

Case, for injuries to a horse and wagon. Trial by jury and verdict for the plaintiff. Transferred from the May term, 1901, of the superior court by Young, J. The plaintiff testified without objection that he ran a small baggage express, and that he owned but one horse, for whose death he sought to recover in the action.

<p>Trover. Facts agreed, and case transferred from the May term, 1901, of the superior court by Peaslee, J.</p> <p>The defendant, a resident of New York, while in attendance as a witness before a referee in an action pending in the superior court for Sullivan county, was arrested upon the capias writ in this action, and in a short time furnished bail without objecting to the arrest. He left the witness stand a few moments before the arrest, but was not discharged from further attendance, and testifled subsequently. On the first day of the May term, 1900, to which the writ was returnable, he appeared specially and moved for a discharge from arrest, a release of the bail, and a dismissal of the action; and on the third day of the term he pleaded in abatement an exemption from arrest and service of process.</p>

Replevin, against the defendant as trustee in bankruptcy of J. P. C. & Son, for store fixtures. Trial at the May term, 1901, of the superior court before Young, J. The court found a verdict for the plaintiff, and the defendant excepted.

Trespass quare clausum. Trial by jury and verdict for the plaintiff. Transferred from the April term, 1901, of the superior ■court by Stone, J. The parties derived title to adjoining lots of land from a common owner,— the defendant in 1865, and the plaintiff in 1884. The dividing line was described in the defendant’s deed as running from a certain point, south forty-five degrees east to a pond.

Infobmations, filed by the attorney-general, for peddling with- • out a license,— the first for violation of the provisions of chapter-76 of the Laws of 1897, and the second for violation of the provisions of an ordinance of the city of Somersworth. The defendant admitted the allegations of the informations, namely, that in August, 1901, at Somersworth, he peddled, without a license, peaches and foreign fruits consisting of bananas, oranges, lemons, and pineapples.

Case, for killing the plaintiff’s horse. Facts agreed, and case transferred from the May term, 1901, of the superior court by Young, J. April 17, 1901, the plaintiff was arrested and his horse taken from Mm; and on the next day the horse was examined and killed under the provisions of section 1, chapter 22, Laws 1897, by the defendant, who was duly deputized for that purpose by the sheriff of this county.

Petition, for the construction of a will, and for advice and direction as to the disposition of a trust fund. Transferred from the October term, 1901, of the superior court by Stone, J. The plaintiffs are the executors named in the will of John EL Pearson, under which they are also residuary legatees in trust.

Case, by a minor by his next friend, for negligently driving a team and running upon him on Spruce street in Manchester, Jan-nary 14, 1896. Facts found by a referee, upon whose report judgment was ordered for the defendant at the May term, 1901, of the superior court by Pihe, J., subject to the plaintiff’s exception. At the time of his injury the plaintiff was about eleven years ■old, and of ordinary size and intelligence for one of that age.

Assumpsit, on a promissory note signed by the defendants,. George F. Willey, Nelson S. Willey, and George G. Tenney. The writ was dated May 3, 1899, and on that date the real estate of Nelson S. and Tenney was attached. George F. was a bankrupt at that time, and Tenney became one in July, 1900. George F. received his discharge prior to November 20, 1900, and on that-date Tenney received his discharge. This debt was included in their schedules.

Bill in Equity, for instructions, by the trustees under the will of Hiram Barker. Facts found, and case transferred from the September term, 1901, of the superior court, by Wallace, C. J. Hiram Barker died in 1887, leaving the bulk of his property by the residuary clause of his will to trustees for certain purposes. The plaintiffs are the present trustees. The following are some of the purposes for which the property was devised in trust: First.

Case, for personal injuries alleged to have been received by tbe plaintiff while traveling in a highway in Farmington, by running against a marble stepping-stone placed by the defendant in front of his dwelling in a grass-plot between the sidewalk and the traveled part of the highway. Trial by jury and verdict for the defendant.

Assumpsit, for board of the defendant’s decedent, Edward Knox, and for boarding his horse.

Trover, for a wagon, a tool of the plaintiff’s occupation, attached by the defendant, a constable, upon a writ against the plaintiff in favor of one Churchill. Facts found by a referee, and ease transferred from the October term, 1901, of the superior court by Pike, J. At the time of the attachment the plaintiff objected to it on the ground that the defendant had no right to interfere with the United States mail.

Debt, on a policy insuring the plaintiff against loss by fire to the amount of $1,000, “ on frame mill building and all additions thereto adjoining and communicating, including steam-pipes, if any, . . . and occupied by the assured as a pail shop.” Facts found, and case transferred from the October term, 1901, of the superior court, by Young, J. The plaintiff is a pail-maker.

<p>Whether a sale oí personal property is accompanied by a change of possession sufficient to render the transaction valid against a subsequent attachment by a creditor of the vendor, is a question to be determined by the law oí the state where the property is situate and the attachment is made.</p> <p>Where lumber sold is permitted to remain in the possession of the vendor, without any manifestation of ownership on the part of the vendee, the acts of the former in drawing a balance of the lumber to a freight station for shipment, requesting the railroad company to provide a car for the use of the vendee, directing the issuance of a shipping receipt in the name of the latter, and causing the car to be loaded by his own servants, do not constitute a change of possession or notice of the vendee’s ownership sufficient to render the sale valid as against a subsequent attaching creditor, under the law of Vermont.</p> <p>Lumber drawn upon railroad premises by the vendor for the purpose of shipment is not deemed to be in the constructive possession of the vendee unless the vendor has parted with all control and custody of the property and the railroad company has assumed the responsibility of a bailee in relation thereto.</p> <p>An attaching creditor is put upon inquiry as to the ownership of alleged property of his debtor only when it is apparently in the open, visible, and exclusive possession of a third person.</p>

Assumpsit, on an insurance policy. Facts found, and case transferred from the May term, 1901, of the superior court, by Stone, J. By the policy the defendants agreed to indemnify the plaintiffs-against loss from common-law or statutory liability for damages on account of bodily injuries accidentally suffered by the plaintiffs’ employees and caused by the plaintiffs’ negligence, subject to the-following, among other, conditions, “ which are to be construed as-conditions…

Assumpsit, for tuition of children who reside in the defendant district with their parents or guardians and attend the high school of the plaintiff district. Transferred from the October term, 1901, of the superior court by Stone, J. There are three school districts in Concord, namely, Union School District, District No. 20, and the Town District. District No. 20 does not maintain a high school, or one of a grade corresponding to the high school in Union School District.

Case, for personal injuries. Trial by jury and verdict for tlie plaintiff. Transferred from the April term, 1901, of the superior court by Young, J. The plaintiff claimed that she was injured by the sudden starting of the train on which she was a passenger, as she was leaving a car. Her evidence tended to prove that she and her sister attempted to leave the car within a reasonable time after the train stopped.

Bill in Equity, by the trustee in bankruptcy of George W. Seward, to avoid as preferences certain orders given by the bankrupt upon Hall, Langdon, and Nickerson, to John H. Sugden and others as the Portsmouth Milling Company, within four months before the filing of his petition; to restrain the defendants in the bill in equity from further prosecuting certain actions at law against the acceptors to enforce payment of the orders; and asking that the parties upon whom the…

Petition for mandamus, against the defendants as selectmen of the town of Barrington, to compel them to assess a tax of $1,000 for building a schoolhouse in that town, agreeably to a vote of the town school-district, at a meeting holden March 12, 1901, and certified to the defendants on March 28 of the same year.

Case, for negligence. Transferred from the November term, 1901, of the superior court. At the close of the plaintiff’s opening statement to the jury a nonsuit was ordered by Peaslee, J., upon motion of the defendants, subject to the plaintiff’s exception.

<p>In an action for negligence by an administrator, the plaintiff is not entitled to recover if the intestate by the exercise of ordinary care could have avoided an injury resulting from dangerous forces continued in action through the defendants’ fault.</p> <p>Case, for causing the death of the plaintiff’s decedent (Beede) by negligence, while he was trespassing upon a bridge on the defendants’ line of road. Trial by jury and verdict for tbe defendants. Transferred from the November term, 1901, of the superior court by Peaslee, J.</p> <p>On the west side of the track across the bridge there was not sufficient room for a man to stand when a train passed unless he got down upon the projecting end of a pier. On the east side there was a walk and ample room. The engineer of a locomotive drawing a train, when some 900 feet from the bridge, saw Beede standing on the bridge, west of the track, and then supposed he' would get out of danger. Shortly thereafter, the engineer saw him standing on the extreme westerly edge of the bridge, facing and looking at the train, and apparently intending to remain in that position until the train passed. The engineer testified that he thought there was sufficient room to pass in safety, and so made no effort to slacken the speed of the train; and that he could have slackened it materially if he had applied the brakes when he first saw Beede. The train crossed the bridge at a speed of about thirty-five miles an hour, and struck and killed Beede. The deceased was forty-nine years old, in the full possession of his faculties, and on this occasion constantly observed the approaching train.</p> <p>The jury were instructed that if, after the engineer saw that Beede intended to remain where he was, there was reason to believe he would be injured, and that in the exercise of reasonable care the engineer should therefore have slackened his speed and so prevented the accident, the defendants were in fault. They were further instructed that if, during the time just before the engine struck him and practically up to the time of the collision, Beede could, and, if he had exercised reasonable care, would have stepped out of danger, either by getting down upon the pier or stepping across the track to the walk, then his own negligence was so far a part of the cause of the accident that the plaintiff could not recover. To the latter instruction the plaintiff excepted, upon the ground that such negligence by .Beede would not be the proximate cause of the accident if the engineer could have avoided it after he discovered Beede’s intention to remain.</p>

Case, for personal injuries alleged to have been caused by the defendants’ failure to properly instruct and warn the plaintiff as to the dangers of his employment. Trial by jury and verdict for the plaintiff. Transferred from the April term, 1901, of the superior court by Peaslee, J. The plaintiff’s evidence tended to prove the following facts: The accident happened June 4, 1900, when the plaintiff was fifteen years and six months old.

<p>The court of this state has no jurisdiction of an action for divorce instituted by a non-resident.</p> <p>Whenever it appears that a court has no jurisdiction of the 'subject-matter of a suit, the proceeding will be dismissed even if no objection is made.</p> <p>Libel eoe Divorce. One of the causes alleged was adultery committed when both parties were domiciled and resident in this state. At the time of filing the libel the libelant was a resident of Massachusetts, where he has lived since 1893. The libelee since 1893 has lived in Nashua in this county, where the parties lived together before 1893. The libel was filed February 19, 1900. At the September term, 1901, of the superior court, upon the defendant’s motion, the libel was dismissed by Pike, J., because the plaintiff resided out of the state at the time it was filed, and the plaintiff excepted.</p>

Case, for personal injuries. Trial at the September term, 1901, of tire superior court, before Peaslee, J., and a jury. The plaintiff’s evidence tended to prove that on August 20, 1900, he was employed by the defendants as a laborer, leveling and tamping the earth in a trench from fifteen to twenty feet deep. The earth was dumped into the trench by cartloads, and the practice was for the boss of the gang to warn the men in the trench when a load was to be dumped.

Bill in Equity, for an injunction. Facts found, and case transferred from the May term, 1901, of the superior court, by Wallace, C. J. Tlie defendants are the executors of the estate of Charles Williams, tlie Massabesic Horse Railroad, and Wallace D. Lovell and others who assume to act as directors of said railroad. In 1887 the plaintiff corporation, then known as the Manchester Horse Railroad, had built and was operating in Manchester about nine miles of street railway.

Pbobate’ Appeal, from the decree of the probate court for this county making distribution of the estate of Alzina Bradford. One of the appellants is a child of a sister of Alzina’s father, and the other a child of a brother of her mother. The decree was in favor of Mary B. Lewis and Francina C. Towns, two sisters of her father. Dexter Bradford and Lucinda T. Bradford of Charlestown died leaving estate in that town.

Assumpsit, for the breach of an alleged contract by which the defendant agreed to employ the plaintiffs for the term of one year. Transferred from the November term, 1901, of the superior court by Young, J. The writ is dated October 20, 1899, and the ad damnum is $500.

Bill tn Equity, for the construction of the will of Alexander Mclnfire. Facts agreed, and case transferred from the February term, 1902, of the superior court by Young, J. The testator devised to his wife, Mary W. Mein tire, who is also one of the executors, “ all of my estate, both real and personal, ... to be used by her for her comfort, maintenance, and support during her natural life.” The remainder, if any, is devised to other parties.

Trover, for wood. Trial by jury and verdict for the plaintiff. Transferred from the April term, 1901, of the superior court by Pilce, J. The plaintiff’s evidence tended to prove the following facts: Prior to December 9, 1898, Tyler Clark and W. H. Merriam owned a woodlot in Stark, in common and undivided.

Bill in Equity'. The bill alleges that the plaintiff has commenced an action at law against the defendants to recover damages for negligently causing the death of the plaintiff’s intestate by furnishing him for use in his employment improper, unsuitable, and dangerous machinery; that on April 9, 1899, while the intestate was in the employ of the defendants, he was killed by falling against the governor of an engine; that the engine gave indications, by an unusual noise, that…

Case, by an employee against his employers, for negligence in the failure to properly instruct him and to inform him of the dangers pertaining to his work. Trial by jury and verdict for the plaintiff. Transferred from the November term, 1901, of the superior court by Wallace, C. J. The plaintiff, at the time of his employment by the defendants and of his injury, was nearly eighteen years of age, and was possessed of all his faculties.

Assumpsit, to recover a balance unpaid on the ‘ sale of spirituous liquors. Facts found, and case transferred from the November term, 1901, of the superior court, by Wallace, C. J. The plaintiffs were wholesale liquor dealers in Cincinnati, Ohio, and the defendant a retail dealer at Groveton in this county.

Tbespass, quare clausum, for breaking and entering lot No. 108 in Northumberland, and cutting and carrying away wood and timber. Trial by jury and verdict for the defendant. Transferred from the November term, 1901, of the superior court by Wallace, G. J. The defendant claimed title to the premises in controversy by adverse possession, and that was the only question tried, except the amount of damages if the jury should render a verdict for the plaintiff.

<p>The court may grant to a street railway company created by special charter the right to construct extensions and branches which provide a new system of roads and work fundamental changes in the business of the corporation.</p> <p>Where an existing street railway company asks leave to construct extensions and branches, the question whether it has financial ability or credit sufficient for the purpose is to be determined by the court in the first instance, as in the case of provisional corporations.</p> <p>The court may authorize a street railway company created by special charter to raise money for the construction and equipment of extensions and branches by increasing its capital stock “within the limits prescribed by law ” ; and such limits are those fixed by statute in the case of similar corporations organized under the general law, or required by reasonable necessity, and not the amount authorized by the original charter.</p> <p>Where the petition of a street railway company for leave to construct extensions and branches is referred for the purpose of determining the question whether the public good requires the proposed railroad, it is to be assumed that the intention and financial ability of the corporation to build have been established to the satisfaction of the court.</p> <p>The petition of a street railway company for leave to construct extensions and branches should be accompanied by an attested copy of the record of proceedings of the corporation relating to the subject, and full and explicit affidavits, by persons having knowledge, as to facts not matters of record relevant to the questions to be determined by the court before the petition can be referred, and such questions may be decided upon this testimony in the absence of objection; but if an issue be raised upon preliminary questions by an objecting party in the proceeding, the matter will ordinarily be sent to a master or referee for a hearing and finding of facts.</p>

The plaintiff’s evidence tended to prove the following facts: The decedent was forty-nine years old, in good health, and in full possession of his faculties. He was a board-sawyer by trade, and about a year before his death purchased a mill near the scene of the accident. During that year he had occasion to use this crossing frequently, and was familiar with it and its surroundings.

Case, for negligence. Transferred from tbe April term, 1901, of tbe superior court by Peaslee, J. Tbe plaintiff’s counsel made tbe following opening statement: “ This is an action on tbe case for negligently operating a steamroller, thereby frightening tbe plaintiff’s horses and causing them to run away, and inflicting the injuries complained of. “Tbe defendant is a municipal corporation, chartered by the legislature in 1849. Laws 1849, c. 835.

<p>Petition, for mandamus. Transferred from the September term, 1901, of the superior court upon a bill of exceptions.</p>

The plaintiff’s evidence tended to prove that she loaned Addie Connelly, the defendant’s intestate, a string of gold beads between 1880 and 1885, and that Addie retained them until October 5, 1898, when she died. The defendant was appointed administrator of Addie’s estate shortly after her death, and administered the beads as part of it.

Motions, by the trustee in bankruptcy of the defendants,- to bring forward the cases and vacate the judgments and levies therein. The defendants’ real estate was attached in these actions August 3, 1898. These actions were entered at the following September term, and the defendants appeared and made answer denying the validity of the claims sued.

<p>An unaccepted offer by a debtor to pay the sum referees might find to be due upon a promissory note, and his proposal to compare books and papers with a view of determining his liability, do not constitute an unqualified admission of an existing debt, or an express promise to pay, sufficient to avoid the bar of the statute of limitations.</p>

<p>A covenant personal in its terms is binding upon the heirs and assigns of the covenantor, when such an intention is shown by the language of the deed and weighed in the light of the circumstances attending the conveyance, and the practical construction of the language by the parties to the deed and their successors in title.</p> <p>A deed of the water used by a certain mill conveys a right to draw so much as had theretofore been customarily used in its operation.</p> <p>A deed of water “ for the use of the mill as it now is ” limits the amount of water which may be drawn, but not the manner, purpose, or place of its use; and the grantee of such a right may convey a portion of it to one owning water rights in another part of the same privilege.</p> <p>A covenant to maintain a portion of a dam, for the benefit of all the part owners of a water privilege, runs with the land ; and in an action for its breach, all the owners of’ the servient estate must be joined as parties defendant.</p> <p>Case, for a diversion of water from the plaintiffs’ mills and for a breach of a covenant to maintain a dam of a certain height. Facts found by a referee, and case transferred from the November term, 1900, of the supreme court by Wallace, J., without any order as to judgment.</p>

Bill in Equity, to enforce the individual liability of the stockholders of the Machine Company for its indebtedness to the plaintiffs. Facts found, and case transferred from the May term, 1901, of the superior court, by Peaslee, J. The plaintiffs are Mark Flather and two others, who did business as partners under the name of Mark Flather, and the Mark Flather Planer Company, a corporation which succeeded to the business of the partnership.

Fokeign Attachment. The trustee disclosed that he had in his possession the sum of fifty dollars which he took from the defendant for safe keeping when the latter was so drunk that he did not realize what he was about. The trustee took the money with the defendant’s consent, if he could give consent when he was so drunk that he did not realize what he was doing. Upon these facts the court charged the trustee, and the defendant excepted.

<p>The denial of an opportunity to litigate a claim against a town for damages caused by a defective highway does not constitute manifest injustice if the allegations of the plaintiff’s petition fail to state a cause of action.</p> <p>Petition, under section 8, chapter 76, of the Public Statutes, for leave to file a statement of claim for an injury alleged to have been caused by a defective highway. The petition alleges that on February 7, 1901, as the plaintiff was traveling along the sidewalk upon Main street in Derry, he tripped over a piece of sewer or drain pipe there lying, and fell, suffering injury. The highway agent repaired a culvert at the point of the accident during the previous summer, but neglected to remove the pieces of broken pipe taken from the culvert when repairs were made and over which the plaintiff fell. At the April term, 1901, of the superior court, the defendants’ demurrer was sustained by Stone, J., subject to exception.</p>

<p>Where the canse of a death for which recovery is sought in an action for negligence is upon the plaintiff’s evidence left wholly to conjecture, a verdict for the defendant is properly ordered.</p> <p>It is contrary to the established practice of the court to consider questions of law raised by a reserved case when no practical result would follow their decision.</p> <p>Where a verdict is ordered for the defendant because the plaintiff’s evidence is insufficient to authorize the verdict of a jury in his favor, the latter is afforded adequate relief by a petition for a new trial upon the discovery of evidence which supplies the requisite proof.</p> <p>Case, for negligently causing the death of the plaintiff’s decedent. At the close of the plaintiff’s evidence a verdict was directed for the defendants, and the plaintiff excepted. Transferred from the November term, 1901, of the superior court by Peaslee, J.</p>

<p>Assumpsit, for services as an architect. The case was heard by a referee and transferred upon the report by Peaslee, J., at the April term, 1901, of the superior court. The defendant filed a plea of recoupment containing several items, all of which were disallowed.</p> <p>In a letter during the course of negotiations and before employment, tlie plaintiff wrote the defendant as follows: “ In regard to total cost of building, yon understand of course that in ease the estimates exceed the amount you stipulated, my drawings, specifications, etc., will he modified to bring the cost to the amount you stipulate, without extra cost to yourself.” Subject to exception, the referee admitted tlie testimony of architects as experts, as to the meaning of the term “modification” between architects and clients employing them to design buildings. The evidence was received on tlie question whether certain plans were modifications of other plans previously submitted by tlie plaintiff, or whether they were new plans. On this point the referee found that the plans in question were in no sense modifications of the prior plans, and that he made such finding according to the ordinary acceptation of the term “ modification ” and irrespective of the expert testimony of the architects as to the meaning of the term.</p> <p>The plaintiff on cross-examination was asked if lie had left with his counsel a statement of his account against the defendant. He replied that lie had made a confidential statement to his counsel, but that he did not know as the statement or a copy of it had been sent to tlie defendant’s counsel. The defendant’s counsel then produced a paper and asked the plaintiff if that was the statement made by him to his counsel, whereupon the plaintiff produced the original statement which he gave to his counsel, upon which the following writing appeared: “ This and the two following pages is a suggestion of compromise submitted without prejudice.” Tlio defendant excepted to this statement, relating to the circumstances under which the statement was made and given by the plaintiff to his counsel. The two papers were typewritten and were the same, except that the one produced by the defendant’s counsel did not have the writing above referred to and certain figures which appeared in pencil upon the plaintiff’s copy. The referee found that the statement was furnished by the plaintiff as an offer of compromise, and disregarded it as evidence. This finding was based upon the foregoing evidence and upon two-letters of the plaintiff’s counsel which were in evidence.</p> <p>A letter from the plaintiff to one Wilson, the contractor, containing directions as to the work, was introduced in evidence by the plaintiff, subject to exception. One of the claims of the defendant’s brief statement was that the plaintiff had improperly directed Wilson to disregard the directions- of the defendant relating to changes in the construction of the building.</p>

The eirst two cases are appeals by residuary legatees, from tbe allowance by tbe probate court of tbe account of Henry W. Clougb, surviving executor of tbe will of Charles H. Clougb. The third case is a petition by Ellen M. Clougb, for a construction of tbe will and for a decree for tbe payment of a legacy. Tbe cases were tried together, and transferred from tbe April term, 1901, of the superior court by Peaslee, J. ■ Charles II.

Covenant Broken. The defendant and her three children acquired title to the premises in question by descent from the defendant’s late husband. On December 26, 1899, the plaintiff and his partner, Loveland, made a written agreement with the defendant and her children to purchase the property for the sum of $8,500, of which $1,000 was paid on the date of the agreement and the balance was to be paid on or before July 15, 1900.

Foreign Attachment. It appeared from the disclosures of the trustees (M. A. Taylor and the Nashua Trust Company) and from other evidence submitted upon the question of their liability, that Taylor had been elected treasurer of the defendant association eight or nine years before, and had so acted under this election ever since; that as treasurer he received $1,011.52 of the association’s money; that on April 26, 1900, he deposited it as treasurer with the Trust Company; and…

Case, for negligence. Transferred from the January term, 1900, of the supreme court by PiJce, J. The plaintiff, an engineer of experience, was employed by the defendants in running a freight train from Woodsville. At the time of his injury the engine upon which he was then riding had been used by him daily, Sundays excepted, for about ten months. On the side of the engine, at the forward end and below the base of the smoke-stack, was an arm-hole over which was a cover.

Indictment, for a second offence of illegally keeping liquor for sale on September 1, 1901. Trial by jury and verdict of guilty of a first offence. The indictment alleged a prior conviction on May 15, 1901. Transferred from the September term, 1901, of the superior court by Peaslee, J. The state’s evidence tended to prove the following facts: The defendant keeps a drug store in Nashua. The place was searched Sunday, September 1.

<p>Assumpsit, upon a fire insurance policy. Trial by jury and verdict for the plaintiff. Transferred from the September term, 1901, of the superior court by Peaslee, J.</p> <p>The plaintiff’s evidence tended to prove the following facts: While his buildings were insured in another company for $900 and his household furniture for $100, he applied to Keyes,— the defendants’ agent to solicit insurance, write policies, and collect premiums,— for $1,500 additional insurance on the buildings and $500 on furniture, etc., informing Keyes of the existing insurance. Keyes promised to write the additional insurance, and a few days later delivered to the plaintiff a policy and received the premium. This and the prior policy were of the standard form; and each contained a provision that it should be void “if the insured, at the time of any loss, has any other insurance on said property, without the assent in writing or in print of the company.” The plaintiff did not examine the policy and supposed it was made in accordance with his agreement with Keyes. The buildings and their contents were destroyed by fire without the plaintiff’s fault within the time covered by the policies. Neither company ever assented in writing or in print to the insurance written by the other company. At the close of the plaintiff’s testimony the defendants moved for a nonsuit, on the ground that there was a violation of the provision as to other insurance. The motion was denied, subject to exception.</p> <p>The defendants’ adjuster was called as a witness by the plaintiff, and testified that he told the plaintiff that he must comply with the terms of- the policy. Subject to exception, he was asked by the plaintiff’s attorney if at the time of their interview he had any sympathy for the plaintiff, and he replied: “ I did not search my heart for it. I cannot answer your question. I do not know that I had any.”</p> <p>One defence was that the plaintiff burned his buildings, and evidence was introduced as to the value of the property. The following question propounded to the plaintiff on cross-examination was excluded, subject to exception: “When you got your tax bill in 1901, did you make any complaint? Was a part of your tax abated ? ”</p>

Assumpsit, upon a fire insurance policy. The Pittsfield Savings Bank and John E. Dearborn are plaintiffs in interest. Facts agreed, and case transferred from the January term, 1902, of the superior court by Stone, J. August 2-3, 1897, Breeyear took out a policy in the defendant company insuring him in the sum of $700 against loss by fire upon his buildings.

<p>A judgment for the defendant on the merits, rendered by a foreign court having jurisdiction of the parties and the subject-matter, in a suit upon a cause of action arising within this state is_a conclusive defence to a subsequent suit in this state between the same parties for the same cause of action.</p> <p>The conclusiveness of a foreign judgment as a defence to a subsequent suit cannot be avoided on the ground that the adjudication contravenes our established policy, when it appears that the decision resulted from a failure of the parties to furnish information as to the settled law of this state, where the cause of action arose.</p> <p>Case, to recover the value of goods destroyed by fire through the defendants’ negligence while in their possession as common carriers. The case was transferred from the November term, 1901, of the superior court by Wallace, C. J., upon the pleadings and facts agreed upon hy the parties, as follows:</p> <p>The goods in question were shipped upon the Allan steamship Sarmatian at Glasgow, Scotland, under a bill of lading which was made a part of the case, for transportation to Toronto, Can«ada. The goods were received by the defendants at Portland, Maine, for transportation upon the terms of the original bill of . lading. While in transportation across this state they were destroyed by fire resulting from a collision caused by the defendants’ negligence. The goods were insured with the Mannheim Insurance Company, which has paid the plaintiffs, MacDonald & Co., their value — $2,469.50. Prior to the commencement of this action, the consignees, who are residents of Toronto, and the insurance company brought suit before the high court of justice in the dominion of Canada against the defendants, in which the present plaintiffs claimed to recover of the present defendants for the loss of the goods in question; and in that action, after hearing, judgment was rendered in favor of the defendants. The high court of justice is a court of record of general jurisdiction. It had jurisdiction of the parties to the action and of the subject-matter of the case; and the judgment rendered was a judgment upon the merits of the issue presented, and is not reversed.</p> <p>The defendants pleaded the judgment in bar of this action, and also pleaded that by the terms of the bill of lading they were protected from liability for loss from fire, whether due to their own negligence or otherwise, and from liability for any loss which could be covered by insurance. The pleadings and record in the suit referred to were made a part of the case.</p>

Trespass quare elausum. At a prior term the plaintiff recovered judgment, upon the verdict of a jury against the defendant, for the possession of the locus in quo and for her taxable costs in a writ of entry. The taxable costs were paid by the defendant.

<p>A verbal refusal to receive in hand a writ of habeas corpus does not subject the person to whom it is directed to the penalty prescribed by section 27, chapter 239, Public Statutes, unless delivery of the process is thereby prevented.</p> <p>Debt, under the statute, for refusing to accept service of a writ of habeas corpus. Plea, the general issue. Transferred from the October term, 1901, of the superior court by Stone, J.</p> <p>It appeared that one Clark, a deputy sheriff who had the writ to serve, called upon the defendant at his house and told him that he had a paper which lie wanted to servo upon him. The defendant thereupon said: “ I shall take no paper.” Clark told him it was an order from court to call him to Concord. lie declined to receive the writ, and put his hands behind him. Clark again told him to take it, and he said: “ I haven’t my spectacles with me. I cannot read it. Y ou read it to me.” Clark replied that it was not his business, and asked the defendant to take the writ. This he again declined to do, but said: “ You can leave it in the wheelbarrow if you wish.” The wheelbarrow was standing near by, but Clark declined to leave the writ there and went away, taking the writ with him. The court submitted to the jury the following question: “ Did the defendant Emery intend to hinder, delay, or avoid service upon him of the said writ of habeas corpus ? ” The jury answered in the affirmative. On the plaintiff’s motion the court directed a verdict in his favor for the statutory penalty, and the defendant excepted.</p>

<p>Bill in Equity, praying that a discharged mortgage may be decreed to be in force, and for a foreclosure. Facts found, and case transferred from the November term, 1901, of the superior court, by Peaslee, J.</p> <p>In May, 1888, Vittum was indebted to the defendants Mattoon and Busiel. Subsequently he borrowed $1,800 of one Melcher, for which he gave his note and a real estate mortgage as security. The mortgage was recorded, and it and the note were pledged by Melcher to the plaintiff bank to secure his note for a like amount. In 1890, Vittum gave Mattoon and Busiel mortgages upon the same land to secure his indebtedness to them. Their mortgages were recorded. In 1898, the bank desired to have its security renewed, and Vittum signed a new note payable to it, with Melcher as surety, and secured the same with a new mortgage upon the same land. Melcher, not having assigned the old mortgage to the bank, at its request executed a discharge thereof, which recited that the note was paid. The discharge and the new mortgage were recorded at the same time, and the old mortgage note and Melcher’s note were surrendered. The bank had no knowledge of the mortgages held by Mattoon and Busiel, nor did the latter know of the Melcher or bank mortgages until about 1900. Each party understood it hold a first mortgage. There was no intention on the part of any one to change the relation of the parties by the transaction of 1898 ; that is, the ultimate liability was Vittum’s, while the bank could also hold Melcher therefor. The records of the bank show that in 1898 the Melcher note was paid, and on the same day the new note, secured by the mortgage, was discounted. The court found so far as it is a question of fact, and ruled so far as it is a matter of law, that the plaintiff bank is entitled to relief, and the defendants excepted.</p>

Bill in Equity, brought by taxpayers and citizens of Concord, praying that the city, certain officers thereof, and the bodies known as the building committee and the finance committee be restrained from proceeding with the erection of a city building, and from issuing notes or bonds of the city to pay for the same.

Petition, for abatement of taxes. Facts agreed, and case transferred from the February term, 1902, of the superior court by Toung, J. Tbe plaintiffs are organized as a corporation under the laws of Connecticut, and do business in this state. Their principal business is cutting, transporting, sawing, and selling lumber.

<p>Under section 5, chapter 209, Laws 1901, the city council of Somersworth are not required to vote by ballot in the election of a city clerk.</p> <p>Information, in the nature of a quo warranto, to determine the title of the defendant to the office of city clerk of Somersworth. Facts agreed, and case transferred from the February term, 1902, of the superior court by Wallace, O. J.</p> <p>At a meeting of the city council, composed of the mayor and ten councilmen, held March 18, 1902, for the organization of the city government and the election of a city clerk, four ballots were taken for city clerk, at each of which there was no choice,— R having one vote, K having four, and the defendant having five. At an adjourned meeting attended by all the members, a motion was made that the defendant be elected city clerk by a yea and nay vote. Objection was made that such a course would be illegal, but the mayor ruled that the motion was in order, and directed the clerk to call the roll, which he refused to do for the reason that he considered such course illegal. The council then adjourned to March 19. At the adjourned meeting, all members being present, a motion was made that the office of city clerk “ be and hereby is declared vacant, and the present incumbent be excused from all further duties of his office, except to turn over all properties and records to his successor in office.” A councilman protested against such proceeding. On a roll-call, five councilmen voted yea, and five, nay. The mayor declared the motion carried, voting in favor of it himself. Subsequently, a motion “that Harry C. Remick.be and hereby is elected city clerk for the city of Somersworth for the municipal year ensuing,” was adopted by a like vote,— a councilman protesting against the legality of the proceeding. Another councilman claimed the right to ballot, but was refused the privilege. The defendant took the oath of office, and has since acted as city clerk.</p>

' Probate Appeal, from the decree of distribution of the estate of George W. Otis. Trial at the September term, 1901, of the superior court, before Wallace, C. J. In the probate decree tbe defendants, wbo are brothers and sisters of the intestate, were recognized as his heirs, and as such entitled to the entire estate, subject to tbe widow’s rights therein.

Indictment, for willfully refusing to make a vote certain by a poll of the voters, while the defendant was acting as moderator of a special meeting of the school district of Barrington. Tbe defendant’s demurrer was overruled by Wallace, G. J., at the February term, 1902, of the superior court, subject to exception.

Assumpsit. Trial by jury and verdict for the plaintiff. Transferred from the March term, 1902, of the superior court by Pike, J. Upon the cross-examination of the defendant, he was asked if he-did not make to the plaintiff’s attorney a certain material statement as to his liability.

<p>Trespass quare clausum. Plea, the general issue. Trial at the March term, 1902, of the superior court before Slone, J., who ordered a nonsuit, and the plaintiffs excepted.</p>

Case. The declaration alleges, among other things, that while the plaintiff was employed by the defendants in their mill as a weaver, they carelessly and negligently allowed a certain loom, situated about four yards from the loom upon which the plaintiff was at work, to become out of repair, defective, and dangerous to the plaintiff, and carelessly and negligently used and operated said loom in its defective and dangerous condition, having knowledge thereof, or being in…

Case, for negligence, to recover the amount paid by the plaintiffs upon a judgment against them in favor of John W. Wright, their employee. Trial by jury and verdict for the plaintiffs.

Trespass, for false imprisonment. Transferred from tbe April term, 1902, of the superior court by Peaslee, J. October 5, 1898, the plaintiff was arrested for breaking and entering a building in the daytime, and the larceny therein of goods valued at fifteen dollars. He was arraigned in police court, pleaded guilty, and was sentenced to four months’ imprisonment in the county jail and to pay a fine of ton dollars and costs.

Case, for injuries alleged to have been caused by a defective highway. Trial by jury and verdict for the defendants. Transferred from the September term, 1901, of the superior court by Pilce, J. On the night of February 26, 1900, the plaintiff and one Ringey, with two female companions, were driving along a highway in the town of Hudson. As they were crossing an unrailed culvert the carriage was overturned, the occupants were thrown out, and the plaintiff was injured.

<p>The rule excluding parol evidence offered to explain, vary, or control the terms of a written contract is not applicable as against one who was not party thereto.</p> <p>'Where a devise in trust directs a sale of the estate upon agreement of the beneficiaries, the trustee is not required to execute the power in pursuance of a contract which limits him as to the time and manner of sale, and which 'is in effect an attempt to terminate the trust by an unauthorized conveyance to the cestuis que trustent.</p>

<p>Petition, for a writ of quo warranto. Facts found at the September term, 1902, of the superior court by Peaslee, J., who transferred the questions of law arising’ thereon.</p>

Trover, for store fixtures. The defendant is trustee in bankruptcy of the estate of John P. Clay & Son. Trial at the Maxell term, .1902, of the superior court, before Young, J. Tbe plaintiff bought the fixtures of the Clays, March 15, 1900, and gave them credit for the price upon an existing debt. Tbe Clays were to have tlie possession and use of the fixtures until the plaintiff was ready to take them away.

Case, for negligence. The declaration states the following facts: The plaintiffs occupy a part of the 'lower floor of a mill building, called the Drake & Sanborn mill, consisting of a basement, three stories, and an attic. The remainder of the mill was in possession of the Drake & Sanborn Shoe Company, though the attic was in fact unoccupied.

Assumpsit, for taxes for the year 1900. Facts agreed, and case transferred from the May term, 1902, of the superior court by Young, J. April 1, 1900, the Manchester Savings Bank owned bonds of the Concord & Montreal Railroad and of the Concord & Claremont Railroad, amounting together to $250,000, par value; and the Amoskeag Savings Bank was the owner of $113,000 of the bonds of the Concord & Montreal Railroad.

Probate Appear. Trial by jury and verdict for the appellants. Transferred from the September term, 1901, of the superior court by Peaslee, J. The issue tried was whether John I).

Bill in Equity, for the construction of a will. Facts agreed, and case transferred from the April term, 1902, of the superior court by Pike, J. Benjamin Adams, late of Derry, died March 11, 1901. His will is dated December 13, 1899, and among other provisions contains the following: “ Fourth. I give and bequeath to the town of Derry . . . the sum of ten thousand dollars.

Bill in Equity, for an injunction. Transferred from the April term, 1902, of the superior court by Young, J. The allegations of the bill are in substance as follows: September 13, 1869, the plaintiffs and the defendants, being tenants in common of certain real estate in Portsmouth, and occupying separate portions of the building thereon for the business of their respective institutions, made partition of the property by mutual deeds of release.

<p>Appeal, from the judgment of a justice of the peace on a complaint under section 14, chapter 93, Public Statutes, as amended by section 1, chapter 61, Laws 1901. Trial by the court (Stone, J.) by agreement, and verdict of guihy, which, the defendant moved to set aside for error in the rulings. Transferred from the March term, 1902, of the superior court upon a bill of exceptions.</p> <p>The defendant moved to quash the complaint on the ground that the statute under which it was brought is unconstitutional. The motion was denied, subject to exception.</p> <p>The state’s evidence tended to prove the following facts: The defendant has the custody and control of his daughter Alice, aged ten years. They reside in the school district of Tamworth in this county, in which a public school is annually taught. Alice has never been instructed in any private school approved by the school hoard, and has not acquired the common English branches. She has not attended the public school all the time it was in session, ■and has not been excused from attendance by the school board.</p> <p>• No formal application was ever made for such excuse; and no evidence as to the condition of the child, other than the statement •of the defendant to the school board, was ever offered to the board until tbe day of trial.</p> <p>The defendant offered evidence to show that Alice was in feeble health; tbat he took her from school, believing in good faitli that her attendance at and confinement in school would seriously injure her reason and health; that he so informed two members of tbe school board before he removed her from the school, and offered evidence of a physician that her confinement in the school would greatly endanger her life ; all of which evidence was excluded, and the defendant excepted.</p>

Case, for malicious prosecution. Both actions were tried together at the October term, 1901, of the superior court, before Stone, J., and a jury, and the plaintiff had a verdict. Tbe declarations alleged a conspiracy between tbe defendants and one Clark to injure the plaintiff in his business. For some time prior to April 17, 1899, the plaintiff and the defendants were partners in the tailoring business in Concord, the former having charge of the shop and business.

Claim, for aid to paupers. The claim is for medicine, medical attendance, and other necessaries furnished a person and his family, living in the plaintiff town, having no settlement there, and who for some time had been partially supported by the county. At the time such necessaries were furnished, a minor child was ill with diphtheria.

Assumpsit, for labor performed, materials furnished, and money paid at the defendants’ request, in constructing a sewer. Trial by jury at the October term, 1901, of the superior court, Stone, J., presiding, and verdict directed in favor of the defendants, subject to the plaintiffs’ exception.

Pkobate Appeab, from a decree disallowing the report of a committee to set off dower and homestead. Trial before Peaslee, J., who transferred the case from the April term, 1902, of the superior court. The reason assigned in the appeal was “ the rejection and dis-allowance of said report.” The defendant moved to dismiss because no reason for the appeal was stated, and excepted to a denial of the motion.

October 19, 1897, the plaintiff conveyed to the defendant her . homestead farm, consisting of two parcels, by a deed which contained the following clause: “Reserving, however, the building situated on the last-described premises known as the chapel, together with the right to the land on which said building stands, said building to remain as long as the association owning the same may want it.” The present controversy arises over the interpretation to be given this clause.

Bill oe Interpleader. Transí erred from the February term, 1902, of the superior coui't by Stone, J. The petitioner, a physician, was called to attend Rodney Cross about five o'clock in the afternoon of February 15, 1901. [’pon the arrival of the physician, Cross inquired who had- sent for him, and said lie was not sick.

<p>Evidence that a platform was regularly used for the reception of street railway passengers warrants a finding that the company had adopted it and invited the public to uso it for that purpose.</p> <p>A street railway company is honnd to maintain in reasonably safe condition a platform which it has adopted and invited the public to use for the purpose of hoarding its oars; and in such case it is immaterial by whom the platform was constructed, or whether it is located within the limits of a highway.</p> <p>It is not necessary that a person should have come in physical contact with a street railway car to constitute him a passenger and entitle him to the care due to that relation.</p>

Petition, to be discharged as bail. Transferred from the May term, 1902, of the superior court by Slone, J. Orison W. Page, having been arrested by the tax collector of Newport and committed to jail for non-payment of taxes, applied to a justice of the superior court for a writ of habeas corpus. A hearing was had, and his petition was denied. Page excepted to the order, and the questions raised were reserved for the consideration of the supreme court.

Habeas Corpus. Trial before Stone, J., and case transferred from the April term, 1902, of tbe superior court. Tbe defendant, who is tbe sheriff of tbe county, states in bis return that he lias the custody of the relator under a warrant from the governor of this state, issued on the requisition of the governor of Massachusetts.

Indictment, charging the defendant with the murder of Nancy J. Folsom. The defendant was indicted in Merrimack county. On his motion, the venue was changed to Belknap county, where the trial took place at the November term, -1901, of tbe superior court, Wallace, C. J., and Pike, J., presiding. Tbe jury returned a verdict of guilty of murder in the first degree. Judgment was ordered on tbe verdict, and the defendant filed a bill of exceptions, which was allowed.

Debt, on bonds given by Brown as principal and the other defendants as sureties, for the faithful performance by Brown of his duties as collector of taxes for Seabrook in the years 1896 and 1897. The facts were found by a referee, and the case transferred from the October term, 1900, of the supreme court by Wallace, J. The bonds were not filed in either year, within six days after Brown’s appointment, as required by the statute. He acted as collector.

Tresrass, for assault and battery. The plaintiff is a minor who prosecutes the suit by his next friend. Trial by jury and verdict for the defendant.

Case, for personal injuries. Transferred from the superior court by Young, J. The writ describes the defendants as “ a corporation organized under the laws of the state of Maine and doing business in York county in said state, but also having a place of business at Portsmouth,” Yew Hampshire.

Bill in Equity, for leave to appeal from the report of the commissioner upon the estate of Arthur Knapp, deceased. . At the April term, 1901, of the superior court the bill was dismissed by Stone, J., upon motion of the defendant, and the plaintiff excepted.

Petition's, for mandamus, to compel the issuance of licenses by the defendant to the petitioners. Transferred from the October term, 1901, of the superior court by Stone, J.

<p>Probate Appeal. Transferred from the May term, 1902, of the superior court by Pitee, J.</p>