Volume 72 — New Hampshire Reports

<p>Assumpsit, upon a policy of life insurance, dated September 17, 1900. Trial at the April term, 1902, of the superior court before Peaslee, J., wlio found a verdict for the defendants, subject to the plaintiff’s exception.</p> <p>The insured was the ten-year-old son of the plaintiff. The application for the insurance was made by the plaintiff on September 5, and the boy was examined by the defendants’ physician the next day and was reported by him to be in good health. Thereafter, and before the policy was delivered, the boy fell sick of a disease of the heart, from which he died March 8, 1901. September 16, the plaintiff took him to a physician, who found that he had a disease of the heart; but he did not inform the plaintiff of his discovery, and she had no knowledge that the boy had such disease. The disease was undiscoverable except upon examination by a physician, is not infrequent with children, and is frequently outgrown. At the date of the policy and the time of its delivery, there was nothing in the actions and appearance of the boy to indicate to ordinary observation that he had anything more than a temporary ailment. The boy’s father died of consumption and that fact was waived by the defendants in the policy. The attending physician testified that the boy died of heart disease and consumption, and that the consumption might have been an inheritance from the father and the cause of the heart disease.</p> <p>The policy contained the following: “ Provided, however, that no obligation is assumed by the company prior to the date hereof, nor unless on said date the insured is alive and in sound health.” The application contained a like provision. The policy also contained. the following: “ This policy is issued upon an application which omits the warranty usually contained in applications, and contains the entire agreement between the- company and the insured and the holder and the owner hereof.”</p>

Btll in Equity. Transferred from the January term, 1902, of the superior court by Young, J. March 29, I 892, the Union Trust Company and the defendants entered into a contract, for the benefit of all parties who should become interested in the subject-matter, wherein it was provided that the Trust Company should issue certificates of deposit, and as security therefor should assign and transfer to the defendants, as trustees, real estate mortgages, stocks, bonds, and tax-sale…

Assumpsit, upon a promissory note. Writ dated September 16, 1899. Trial by jury. Tlie note was secured by mortgage; and tbe question submitted to tbe jury was tbe value of tbe real estate acquired by tlie plaintff by foreclosure in July, 1901, as bearing upon tlie question of the amount due upon the note.

<p>A policy of insurance upon the life of the manager of a corporation, procured by one who furnishes funds to cany on the business, is not void as matter of law for want of insurable interest.</p> <p>A policy of life insurance, valid in its inception, is assignable to one having no insurable interest in the life insured, providing the assignment is made in good faith and not as a mere device to evade the law prohibiting wager policies.</p> <p>A provision in a life insurance policy, that any claim by an assignee shall be subject to satisfactory proof of interest in the life of the insured, is intended for the protection of the company, is waived by a formal admission of liability and payment of money into court, and is not available to one who asserts a claim, to the proceeds of the policy adversely to an assignee thereof.</p> <p>The admission of incompetent evidence is not reversible error if its only tendency is to prove that which follows as matter of law from facts indisputably shown.</p>

The first action is assumpsit. The second is trover by the sheriff, to recover the' value of goods attached in the first action and taken from him by the defendant. Trial at the September term, 1902, of the superior court before Young, J., who found the following facts: January 25, 1901, Locke mortgaged ‘ certain personal property to one Cavanaugh, who did not make or subscribe the affidavit required by the statute.

Bill in Equity, to compel the defendant corporations to issue to the plaintiff five shares of stock in the Concord & Montreal Railroad. • Trial at the May term, 1902, of the superior court before Young, J. May 27, 1865, the plaintiff became the owner of five shares of the stock of the Boston, Concord & Montreal Railroad, and a certificate was issued to her on that date.

The plaintiff’s evidence tended to prove the following facts: At the time of the accident, and for some time prior thereto, Baker was in the employ of the defendants as a freight brakeman. The crew to which he belonged had no regular run, but worked on extras on the lines of the defendants’ road running out of Nashua. During the two months before the accident, they had been over the road from Nashua to Keene about a dozen times.

Case, for negligence. Trial by jury and verdict for the plaintiff. Transferred from the May term, 1902, of the superior court by Pike, J. The defendant owned and operated a sawmill. From the back of the mill, a slip extended at a steep incline to a pond where logs were floated.

Case, for personal injuries alleged to have been caused by the defendants’ negligence. Trial by jury. At the close of the plaintiff’s evidence the court ordered a verdict for the defendants, and the plaintiff excepted.

Assumpsit, to recover the amount due on a life insurance policy issued by tbe defendants on tbe life of John S. Seely, payable at bis death to tbe plaintiff, his wife. Plea, tbe general issue, with a brief statement setting out cancellation for non-payment of premium, failure to furnish proofs of death, and the statute of limitations. Trial by jury, resulting in a disagreement.

CÁSE, for personal injuries resulting in the death of the plaintiff’s intestate.

Case, for personal injuries. Trial by jury and verdict for the plaintiff. Transferred from the April term, 1902, of the superior court by Pike, J. The defendants’ motion for a nonsuit was denied, subject to exception. The defendants also excepted to remarks of the plaintiff’s counsel in closing argument, wherein he challenged the defendants to then make experiments showing the distance in which an electric car like the one in question could be stopped.

<p>Appeal, from the decision of the selectmen of Tuftonborough laying out a highway. The plaintiffs are citizens and taxpayers of the town, but are not otherwise interested in the proceedings. The defendants’ motion to dismiss was granted at the October term, 1902, of the superior court, by Peaslee, J., subject to exception.</p>

<p>Writ oe Entry. Facts agreed. Transferred from the March term, 1902, of the superior court by Stone, J.</p> <p>John Weston, a resident of Maine, being the owner of certain real estate located in this county, on November 30, 1896, made a common-law assignment in Maine to one Hastings, also a resident of that state, of all his property for the benefit of his creditors. On the same day he executed a deed of his real estate in this state to Hastings, in consideration of the trust created by the assignment. This deed was recorded December 1, 1896. In the assignment Hastings agreed to execute the trust “ according to the provisions of this instniment and agreeably to law, and in case of a decree of insolvency of the said Weston, under the insolvency laws, and the appointment of an assignee in insolvency, to . . . transfer ... to such assignee all the property then remaining in his hands which is now conveyed to him by this instrument of trust.”</p> <p>December 2,1896, the defendant, a citizen of this state, attached real estate in this state in an action against Weston, and having obtained a judgment therein, duly began a levy of an execution thereon; and on October 15, 1898, he received possession of the land in controversy from the sheriff under the levy. The return of the levy was duly recorded December 5, 1898. February 23, 1897, Hastings, in accordance with the terms of the assignment and his deed from Weston, conveyed the land by a quitclaim deed for a valuable consideration to third parties, who on December 17, 1897, for a valuable consideration, conveyed the land by a quitclaim deed to the plaintiff.</p>

April 21, 1902, a petition was presented to the selectmen requesting them to “ lay out a road beginning at a stake and stone near the residence of Johnson Langelle and extending along the shore of Dan Hole pond as far as a stake and stone at the boundary line between Ossipee and Tuftonborough.” The locus is known as Canaan. Upon this petition a hearing was had, and July 31,1902, the selectmen made a return of the lay-out.

Bill in Equity, praying for a reconveyance of real estate-The bill alleges, in substance, that on October 13, 1899, the plaintiff executed to the defendant a deed of six parcels of land, and upon the same day the defendant gave the plaintiff a bond to reconvey the same to her upon demand, under a penalty of $8,000. The land conveyed was fully described in the bond, which was duly recorded. The plaintiff has demanded a deed of the land in accordance with the terms of the bond.

Habeas Corpus. Facts found, and case transferred from the November term, 1902, of the superior court, by Peaslee, J. The plaintiff is a resident of Vermont. July 26, 1894, he was there appointed guardian of the person and estate of Irene Kelly, air orphan five years old and there resident. He then placed her in an orphan asylum in Burlington.

Trespass quare clausum. Trial at the September term, 1902, of the superior court before Wallace, C. J. The plaintiffs described, their close as Lot No. 11, Range 8, in Franconia.

Foreign Attachment. Facts agreed, and case transferred from the November term, 1902, of the superior court by Young, J. The defendant was employed by the city of Berlin as a laborer in the street department. He was hired by and worked under John B. Noyes, highway commissioner of the city. May 17,1902, the defendant, for a valuable consideration, assigned to Joseph Lambert all wages to be earned while in the employ of the city.

Bill in Equity. Hearing before Young, J., at the March term, 1902, of the superior court, “ to determine to what extent and in what manner, as to preference or otherwise, water was actually and usually used at the box factory, October 26, 1872, and prior thereto,” as required by the former opinion of the court in this case. Horne v. Hutchins, 71 N. H. 128, 137.

Case, for negligence. Transferred from the April term, 1902, of the superior court by Pike, J. The plaintiff’s evidence tended to prove the following facts: The plaintiff, a man twenty-nine years of age, was in the service of the defendant at the time of the injury complained of, and had been employed in the same labor between seven and eight months. His work was excavating earth and stone.

Assumpsit. Trial by jury and verdict for tbe plaintiff. Transferred from tbe October term, 1902, of tbe superior court by Wallace, C. J. The plaintiff contended that be bad seasonably renewed tbe contract described in tbe opinion, and claimed damages for a breach thereof because tbe defendant refused to deliver to him tbe output of tbe Johnson mill. Tbe defendant’s motion that a verdict be directed in bis favor was denied, subject to exception.

Case, under sections 28 and 29, chapter 143, Public Statutes, for maintaining a structure in the nature of a fence, in violation of the statute. Trial by jury and verdict for the plaintiff. Transferred from the September term, 1901, of the superior court by Peaslee, J. The defendant moved for á nonsuit, on' the ground that the statute upon which the action is based is unconstitutional. The motion was denied, and he excepted.

Assumpsit, to recover for services as a physician. Facts agreed, and case transferred from the May term, 1902, of the superior court by Peaslee, J. February 25, 1899, the plaintiff was employed by one Owen to attend a case of scarlet fever in his family. The board of health of the town of Amherst was notified February 28, and quarantined the house. A part of the family was moved to another house by the physician without any suggestion from the board of health.

Reblevin, for five horses, four hacks, and other personal property used in hacking. Trial by the court.

Teovee, for a steam sawmill. Trial by tbe court. Transferred from tbe November term, 1902, of tbe superior court by Peaslee, J. July 23, 1892, tbe Forsaitli Machine Company sold to F. P. Nutting and bis brother the property in question, upon tbe under standing that tbe title should not pass until tbe purchase price was paid. A memorandum witnessing tbe condition of the sale was duly executed and recorded, and lien notes representing tbe purchase price were taken.

Assumpsit, to recover for the board of Octavia Heath from January 16, 1899, to May 1, 1901. Trial by the court. Transferred from the November term, 1902, of the superior court by Young, J. It was found to be reasonably worth one dollar a day to care for Octavia as the plaintiff had done; but upon other facts, which sufficiently appear in the opinion, a verdict was ordered for the defendants, subject to the plaintiff’s exception.

<p>Costs cannot be imposed, except as terms, until the action is finally disposed oí.</p> <p>Whether persons injured by an unreasonable exercise of the right of flowage may by amendment and against the objection of the defendants be made plaintiffs in an action brought by others who have suffered damage from ■the same wrong, is a question to be determined when those thus sought to be made parties ask for leave to appear.</p> <p>Upon the questions of law arising on other exceptions taken to the rulings of the superior court, the justices sitting in the case were equally divided in opinion.</p>

Btll in Equity, to remove a cloud from the plaintiff’s title. Facts found, and case transferred from the October term, 1902, of the superior court, by Young, J. Beal estate standing in the name of John R. (xilcreast, and belonging to him and his wife (the defendant) jointly, was conveyed by him to her, April 13, 1897, as a gift. He was indebted at tbe time to one Sleeper, and the real estate was all the property he owned.

Case, for negligently causing water to flow from the defendants’ sewer through the plaintiffs’ drain into the cellar of their store on Central avenue in Dover, on July 18, 1901. Trial by jury and verdict for the plaintiffs.

Case for personal injuries. Trial by jury and verdict for the plaintiff. Transferred from the November term, 1902, of the superior court by Stone, J. The jury had a view. The plaintiff is a farmer.

Writ or -Entry, to recover possession of three tracts of land. Trial by the court. Transferred from the March term, 1902, of the superior court by Stone, J. September 30, 1896, Mahlon L. Mason gave to his brother, Francis L., a mortgage upon the three parcels of land described in the writ of entry, conditioned to secure his note of $1,000, payable to said Francis, or order, in one year from date with interest, the consideration for the note being borrowed money.

Assumpsit. The action was entered at the October term, 1898. Real estate and personal property were attached upon the writ. One Ellinwood gave the sheriff a receipt for the personal property, and it was returned to the defendant. The defendant died May 7, 1900. The executrix of his will appeared to defend the action, July 25.

Case, for personal injuries to the plaintiff’s intestate, alleged to have been caused by the defendants’ negligence. Plea, the general issue. Trial by jury and verdict for the plaintiff. Transferred from the January term, 1902, of the superior court by Stone, J. The injury oomplained of was received February 31, 1895, and-resulted in the death of the intestate on the same day. The writ was dated February 2, 1901.

Petition, for abatement of taxes. Facts agreed, and case . transferred from the September term, 1902, of the superior court by Peaslee, J. The plaintiffs are a corporation duly established under the law of Massachusetts. They operate lines in New Hampshire, and have in this state property consisting of telephones, lines, wires, poles, and other implements and instrumentalities required for conducting their business.

Bill in Equity, for the construction of a will. Transferred from the November term, 1902, of the superior court by JPilce, J. The plaintiff is executor of the will of Susan K. Smith, dated October 26,1889. She died March 27,1902. At the date of the will the testatrix had one child living, Morris K. Smith, and was expecting the birth of another, who was born about two weeks thereafter and was named Thayer A. Smith. Both children survived the testatrix and are now living.

Assumpsit, by the trustee in bankruptcy of Prescott F. Stevens, to recover rents collected by the defendant, assignee of the firm of Stevens & Duncklee. Facts agreed. Transferred from the October term, 1902, of the superior court by Wallace, C. J. In 1853, Prescott F. Stevens and Charles H. Duncklee formed an equal partnership which has continued to the present time.

Case, for personal injuries. Transferred from the April term, 1902, of the superior court by Peaslee, J. The evidence showed that the plaintiff was run over by an engine while he was upon the defendants’ track at West Lebanon. He was not there on business with the defendants, but for his own convenience. At the close of the plaintiff’s evidence a nonsuit was ordered, subject to exception.

T-Tareak Corpus. Trial in the superior court before Stone J., at an adjourned hearing, March 28, 1903. The relator, after submitting the record evidence presented before the governor and causing it to appear that she was denied a hearing before him, moved to be discharged. The motion was denied, subject to exception. Further facts appear in the opinion.

Bill in Equity, praying for a decree confirming the title to a tract of land on Ferry street in Manchester in Jeremiah Lahey. Trial before Young, J., at the May term, 1902, of the superior court. Upon the facts hereinafter stated a decree was ordered for the plaintiff, and the defendants excepted. Jeremiah and Mary Lahey were married in 1868. Mary died in 1892, leaving two children surviving her — Joseph and John. Joseph died in 1899, and John in 1901.

Foreign Attachment. Issue between the plaintiff and the claimants. Trial before Peaslee, J., at the November term, 1902, of the superior court. The claimants hold an assignment of the defendant’s wages, which the plaintiff seeks to avoid as fraudulent. The claimants are grocers, and being creditors of the defendant took an assignment of wages to become due him from the trustee for a term of months. The assignment Avas duly executed and recorded.

Petition, for tbe abatement of a liquor nuisance, brought by Hyde as superintendent of police in Lebanon. At the February term, 1903, of the superior court, before Pike, J., Hyde asked leave to withdraw his petition, and the defendant moved that the same be dismissed. The county solicitor opposed the motion, and asked leave to appear in the place of the plaintiff and to prosecute the suit to judgment. The request of the solicitor should be granted if the court has power.

<p>Foreign Attachment. Facts agreed. The writ in the first action, dated December 5, 1901, was served on the trustee December 9, and was returnable at the following May term of the superior court, to be holden at Plymouth. It was entered at the February term, 1902, holden at Haverhill. It was then amended by changing the description of the place of residence of the defendant from Boston, Massachusetts, to Providence, Rhode Island, and that of the trustee from Rumney to Wentworth, and by substituting the February for the May term of court as the return term. No notice of the proposed amendments was given to the defendant, the trustee, or the plaintiff in the second action. The action was continued to the May term, with an order of notice of its pendency to the defendant, which was complied with; but the defendant did not appear. An attested copy of the writ as amended was given to the trustee, March 22.</p> <p>The writ in the second action, dated December 2, 1901, was served on the trustee December 21, and was returnable at the following February term. It was entered at that term, and continued to the May term with an order of notice to the defendant. The order was not complied with, but at the May term a paper signed by the defendant was filed, by which he acknowledged “ service and notice.”</p> <p>The trustee disclosed in each action that he had funds of the defendant in his possession. The question of the chargeability of the trustee was transferred from the February term, 1903, of the superior court by Pike, J.</p>

Petition, 'under section 27, chapter 191, Public Statutes. Trial before Young, «L, at the November term, 1902, of the superior court.

<p>In an action brought in a state court by a trustee in bankruptcy for the recovery of the debtor’s property, evidence other than the records of the federal court is inadmissible to prove that the claims of petitioning creditors were insufficient in amount to warrant an adjudication of bankruptcy.</p> <p>In such action, evidence that the defendant had no notice of the pendency of the bankruptcy proceeding, and that his name did not appear in the list of creditors flled therein, is immaterial and properly excluded.</p>

Bill in Equity, for the construction of the will of Emerson Furber. Facts agreed. Transferred from the February term, 1903, of the superior court by Young, J. The plaintiffs are the trustees named in the will, who now hold the estate in that capacity. Mary Furber, the widow of the testator, died in November, 1901, and Ann Leighton, his daughter, died' in March, 1901.

The plaintiff’s evidence tended to prove the following facts: Stone was thirty-four years old, in good health, and possessed all his faculties. For three weeks immediately preceding his death he had been employed as a farm laborer by Martha Bowers of Sanbornton, for whom he had worked on a former occasion. He frequently drove to Laconia, and on each trip passed over the Winnisquam crossing.

Biel in Equity. Hearing before Young, J., at the March term, 1902, of the superior court, to determine what orders were necessary to secure to the plaintiffs their rights in the reservoir, as required by the former opinion in this case. Horne v. Hutchins, 71 N. H. 117. The plaintiffs claimed that they were entitled to an equalized flow from the reservoir as it now exists.

Petitions for new trials, on tlie ground of newly discovered evidence. The cases are reported in 70 N H. 163.

Bill in Equity, to restrain the defendants, trustees of Pembroke Academy, from erecting the new academy buildings upon a lot procured by them in settlement of a shortage in the accounts of a former treasurer. Transferred from the October term, 1902, of the superior court by Wallace, C. J.

Case, for negligence in locating and operating a portable steam sawmill, whereby the plaintiff’s dwelling-house and property were destroyed by fire. Trial by jury. Transferred from the September term, 1902, of the superior court by Stone, J. The property destroyed was located 430 feet from the mill.

Petition, for a writ of certiorari. Facts agreed, and case transferred from the May term, 1903, of the superior court by Pike, J. Upon the petition of the Concord & Montreal Railroad, the board of railroad commissioners authorized the corporation to change the location of a portion of a highway in Goffstown, where it was crossed at grade by a branch of the corporation’s railroad, for the purpose of avoiding the crossing.

Case, for damage to the plaintiff’s stock in trade by the water of Cemetery brook, which was thrown back in consequence of an inadequate culvert in the highway. Transferred from the January term, 1903, of the superior court by Pike, J., upon an agreed statement of facts. August 1, 1892, the mayor and aldermen of the city of Manchester laid out a highway known as Hall street, extending across Cemetery brook — a natural watercourse.

Case, by the plaintiff as trustee in bankruptcy of one Wilder,, to recover of the defendant the value of certain prope/rty. Facts found, and case transferred from the November term, 1902, of the superioi' court, by Pike, J. Wilder is the son-in-law of the defendant, and prior to September 25, 1899, owned and condxxcted a drug business at Lebanon.

<p>'Certain evidence deemed sufficient to warrant the finding that an attaching creditor and the sheriff by whom the process was served acted maliciously in seizing and withholding property which they knew, or had reasonable ground to believe, was exempted from attachment.</p> <p>Damages may be recovered for mental suffering occasioned by a malicious attachment of exempted property.</p> <p>.In an action to recover for the malicious attachment of exempted property, evidence that the sheriff, when accused of wrongdoing, stated that he held a bond of indemnity, is competent as tending to connect the creditor with the unlawful transaction, and as showing a disposition on the part of the officer to disregard the debtor’s rights.</p>

<p>A plaintiff who seeks to establish an equitable ownership in realty, by an action against the residuary legatee of the person in whom the legal title is vested, is not excluded as a witness in his own behalf, under section 16, chapter 334, Public Statutes.</p> <p>Where a deed of real estate is taken in the name of a person sui juris, for the purpose of overcoming disabilities arising from the purchaser’s minority, a trust results by implication of law in favor of the party by whom the fund® were furnished.</p> <p>A minor allowed to control Ms earnings with the paternal consent is entitled to real estate purchased therewith for his own benefit and .standing in the name of the father, as against the latter’s devisee.</p> <p>Where a, deed of real estate is taken in the name of one person and a part of the purchase money is paid by another, a trust results in the latter’s favor pro tanto; and if a note for the balance of the price, signed by the party in whom the legal title is vested, is subsequently paid by the cestui que, trust,. in pursuance of his agreement at the date of the obligation, a trust also results in his favor in the fractional part of the estate thus paid for.</p> <p>Where a trust results by implication of law from the payment of the consideration for property conveyed to another, the statute of limitations begins to run in favor of the holder of the legal title against the equitable owner at the date-of the conveyance, if there is no recognition of the rights of the latter; and if his rights are recognized, then at the time when the holder of the title disavows the trust, or assorts some right to the property inconsistent with it, and the cestui que trust has knowledge of such action, or from the circumstances ought to have learned of it.</p>

Debt, upon the bond given by William A. Lee, as administrator of the estate of Katherine Lee, deceased. The suit was brought at the request of Sarah S. Lee, in her individual capacity as the widow of John J. Lee, deceased, an heir of Katherine, and also in her capacity as guardian of his only child and heir.

Probate Appeal, from a decree allowing a certain instrument as the will of Samuel Whitcomb. The appellant alleged (1) that the testator was not of sound mind, and (2) that he was unduly influenced by Ms wife and others to execute tlie instrument offered as bis will. Tbe jury returned a verdict sustaining the will.

Probate Appeal. Trial by jury and verdict for the plaintiff. Transferred from the January term, 1903, of the superior court by Stone, J. Elmira D. Wkittemore, the defendants’ testatrix, died October 6, 1898. The plaintiff filed a claim with the commissioner upon the estate, for $2,492 for extra services as housekeeper and nurse, and for attendance to business affairs, from July, 1874, to April, 1896.

Bile in Equity, by the executors of the will of Sarah B. Hubbard, praying the advice and direction of the court as to a clause in the will. Facts agreed.

Case, for negligence. Transferred from the October term, 1902, of the superior court by Wallace, C. J. Upon the opening statement made by counsel for the plaintiff a nonsuit was ordered, subject to exception.

Case, for negligence. Trial by jury 'and verdict for the plaintiff. Transí erred from the November term, 1902, of the superior court by Pike, J. The negligence complained of was (1) that certain bevel gears attached to a spinning-jack upon which the plaintiff was at work were not covered; (2) that the place provided for the plaintiff’s work was not reasonably safe; and (3) that the plaintiff was not sufficiently instructed as to the dangers incident to his employment.

Case, for injuries from a defective highway. Trial by jury. Transferred from the October term, 1902, of the superior court by Wallace, C. J. At the close of the plaintiff’s evidence a nonsuit was ordered, subject to exception. The plaintiff’s evidence tended to prove the following facts: The place of the accident was a common country road over which there was considerable travel.

Bill in Equity, by certain shareholders of the Massachusetts Construction Company Incorporated (a Connecticut corporation), against that company, the New York Security and Trust Company (a New York corporation), Wallace D. Lovell (a resident of Massachusetts), and. the New Hampshire Traction Company (a New Hampshire corporation located at Hampton in Rockingham county). .

Case, for negligence. Trial by jury and verdict for the defendants. Transferred from the November term, 1902, of the superior court by Stone, J. The evidence tended to show that the defendants obtained permission or a license from the city council of Laconia to excavate through a portion of Main street, for the purpose of constructing underground conduits to connect with different buildings in the telephone service.

Case, for personal injuries alleged to have been received by reason of the defendants’ failure to furnish a reasonably safe carding machine and to instruct or warn the plaintiff. Trial by jury and verdict for the defendants. Transferred from the April term, .1902, of the superior court by Peaslee, J. The plaintiff is a deaf mute and a skillful operator of machines known as revolving-top flat cards.

Case, for personal injuries' resulting from a collision with the defendants’ car. Trial by jury and verdict for the plaintiff. Transferred from the January term, 1903, of the superior court by Pike, J. The cause of the collision was alleged to be negligence in running the car at excessive speed and failure to exercise care to avoid injury to the plaintiff after discovering him in a place of danger.

Assumpsit, for services. Facts agreed, and case transferred from the May term, 1903, of the superior court by Pike, J. At a meeting of the committee of the board of mayor and aider-men of the city of Manchester, held March 21, 1903, the plaintiff was employed as janitor of the police station for one year, beginning April 1, and entered upon his duties at that time.

<p>Cask, for personal injuries. Trial by jury. At the September term, 1902, of the superior court the defendants’ motion for a non-suit was granted by Peaslee J., and the plaintiff excepted.</p>

Petition, for mandamus requiring the selectmen of Warren to assess a tax upon property of William R. Park for the year 1901. The plaintiffs are residents and taxpayers in the town, and three of the defendants were the selectmen of the town that year. Park is the other defendant.

Assumpsit, to recover money paid as margins upon stock gambling contracts. Plea, the general issue and a release. Replication, that the release was obtained by fraud. Trial before Wallace, C. J., at the November term, 1901, of the superior court. This case and ten others against the same defendants were tried together; and in five of them there were no releases. For some time prior to December 18, 1899, one Letourneau was in business as a stockbroker in Berlin.

Bill in Equity, for tbe construction of the will of Sarah M. Sanborn, of whose estate .the plaintiff is the administrator with the will annexed. Facts found, and case transferred from the April term, 1903, of the superior court, by Stone, J. The will is dated November 9, 1892, and there are two codicils, dated respectively November 20, 1893, and June 17, 1896. The testatrix died October 27, 1902.

Assumpsit, for goods bargained and sold. Trial at tbe March term, 1903, of the superior court before Stone, J., who found a verdict for the plaintiffs for $54.55 and reported the following facts: The plaintiffs are manufacturers at Sandy Hill, New York, and sell their goods by sample through agents. October 10,1901, their agent sold the defendant from samples a bill of goods which was reduced to writing by the salesman and a copy left with the defendant.

<p>Probate Appeal, from a decree charging the defendant with the value of certain lumber belonging to the estate of Charles A. Davis, deceased, testate, sold by the defendant with the knowledge, and assent of the plaintiff and not paid for. Trial at the October term, 1902, of the superior, court before JPeaslee, J.</p> <p>The plaintiff is the widow of Charles A. Davis and the residuary legatee under his will, in which she and the defendant were named as executors. The will has been proved and allowed, and letters of administration have been issued to the plaintiff and defendant as executors, but no administration bond has been given. They have undertaken to administer the estate, and the defendant has filed an account. John Goodhue was indebted to the estate in. the sum of $434.90, for lumber sold him as above stated. In consequence of the defendant’s negligence this claim was not collected, and is now uncollectable and lost.</p> <p>It was ruled that executors without bonds, who take possession of and continue to control and manage the estate, are liable as executors so long as there are debts of the estate unpaid. The defendant excepted to this ruling, and to the refusal to rule that the. probate court had no jurisdiction to appoint the executors without: bonds, and no jurisdiction over this matter. Because of the negligence of the defendant, it was adjudged that he should be charged with the sum of $434.90, in addition to the amount with which he had charged himself in his account filed in the probate court, and he excepted.</p>

Case, for negligence. Trial by jury and verdict for the plaintiff. Transferred from the January term, 1903, of the superior ■court by Wallace, C. J. The evidence tended to prove the following facts: The defendants operated a line of street railway between the city of Manchester and Massabesic lake in the summer of 1900, and at the latter place maintained a pavilion and a theater. They transported large crowds of people to and from the pavilion.

Bill in Equity, by a residuary legatee under the will of -James M. Crooker, to set aside a deed of real estate dated November 7,1902, and given to tbe defendant Clark by Sarah J. Crooker.

<p>Case, for obstructing a cattle-pass under the defendants’ railroad tracks. The defendants pleaded to the jurisdiction, alleging that it belonged to the railroad commissioners. Trial before Peas-lee, J., at the November term, 1902, of the superior court. The defendants’ motions for a nonsuit and the direction of a verdict in their favor were denied, subject to exception.</p> <p>The plaintiff’s evidence tended to prove the following facts: When the railroad was constructed across the farm in question, in 1849, a cattle-pass was built under it to connect the severed portions of a pasture. The pass was used more or less until sometime in the eighties. From then until 1895 the farm was occupied by tenants, and the pass was used little, if at all. In 1889,. the tenant closed the opening with fence rails; and some time-prior to 1892 the railroad corporation built a wire fence opposite-the pass on each side of the right of way. The plaintiff examined-the farm in 1894 with a view to its purchase by his brother, and! saw that the pass was fenced. The brother purchased the farm the next spring, and the plaintiff entered into possession of it under an agreement for a life lease, which was given to him in 1898. In 1895, ’96, or ’97, the defendants constructed a second track at that point and filled the pass with sand or gravel. The plaintiff was aware of what was done at or about the time, and made no objection until the fall of 1899, when he demanded that the pass be opened. The pass is reasonably necessary to the enjoyment of the plaintiff’s life estate.</p>

Assumpsit, for breach of contract. At the May term, 1903, of the superior court the defendants’ demurrer to the declaration was sustained by Wallace, C. J., and the plaintiffs excepted.

Probate Appeal and Writ of Entry. Facts agreed. Transferred from the May term, 1903, of the superior court by Wallace, C. J. George H. Wallingford died in December, 1901, leaving no relative's in the ascending or descending lines, no brother or sister, and no descendant of a brother or sister other than the plaintiff, who is the illegitimate child of the decedent’s sister.

Tboveb, for sixteen cases of rubber boots and shoes. Trial by-jury and verdict for the plaintiffs. Transferred from the May term, 1903, of the superior court by Wallace, C. J. The plaintiffs’ evidence tended to prove the following facts: In the spring of 1901, Peter S. Laducer was keeping a shoe store-in Claremont, and the plaintiffs sold him at that time the property in controversy, to be delivered in the early fall and to be paid for December 1.

Bill in Equity, praying for the assessment of damages-caused to the plaintiff by the flowage of his land.

<p>Bill in Equity", for the construction of the will of Daniel B, Sanborn. Transferred from the March term, 1908, of the superior court by Stone, J.</p> <p>By the fifth clause of the will, $1,000 is given to Daniel A. Gale, “ in trust, till he is twenty-five years of age.” The residuary clause directs the remainder of the estate “to be equally divided among my heirs, the share of Daniel A. Gale to be held in trust in the same manner as the specific bequest heretofore mentioned.” The heirs-at-law of the testator are two sisters and two children of deceased sisters. There were specific bequests to each of the heirs, to another niece, and to a nephew, the father of Daniel A. Gale, the latter being a minor and a grandson of a living sister of the testator. At the date of the testator’s death, Daniel A. was living in the house with and was employed by him. He was named for the testator, who had made him various presents and had expressed a wish to adopt him, but had not done so.</p> <p>The executor inquires whether Daniel A. takes any share in the estate under the residuary clause of the will; and if so, what share.</p>

Case, for personal injuries. Trial by jury and verdict for the plaintiff. Transferred from the April term, 1903, of the superior court by Young, J. 1.

Biux, in Equity, by the administrator de bonis non witli will annexed of the estate of Ithiel E. Clay, praying for the construction of the residuary clause of said will. The defendants are the executor of the will of Carolin E. Clay (widow of Ithiel), and the heirs-at-law of both Ithiel and Carolin.

Probate Appeal, from the allowance of a will. The reason of appeal assigned was that the will had been revoked by tearing or cancellation. Trial by jury and verdict for the defendants.

Case, for negligence causing the death of the plaintiff’s intestate, David S. Carney. Trial by jury and verdict for the plaintiff. Transferred from the October term, 1902, of the superior court by Wallace, C. J. The plaintiff’s testimony tended to prove the following facts: The intestate was the plaintiff’s son, twenty-one months old, thirty-one inches tall, intelligent, and physically strong. He could walk quite well for a child of that age.

<p>A contract whereby a railroad company grants to one person the exclusive privilege of entering upon its premises for the purpose of soliciting the carriage of the baggage of passengers, and under which the traveling public is furnished with adequate service at reasonable rates, is valid.</p>

Indictment, for keeping intoxicating liquor for sale on June 7, 1903, in Manchester, where chapter 95, Laws 1903, was enforced, and where the respondent was not licensed to sell. Trial by jury and verdict of guilty. Transferred from the September term, 1903, of the superior court by Peaslee, J. It appeared that the city voted to adopt the provisions of said act, May 12, 1903.

Case, for slanderous words. Trial at the May term, 1903, of the superior court before Pike, J., who found a verdict for the plaintiff. In the first count of the declaration, the alleged slanderous words are set .out.

Assumpsit, to recover $200 and interest thereon for each of nine “ automatic lateral carving machines,” manufactured and sold by the defendants in accordance with a written contract executed May 6, 1899, the material provisions of which are set forth in the opinion.

Replvin, for old iron. Trial by jury and verdict for the plaintiff. Transferred from the May term, 1903, of the superior court by Stone, ff. The evidence tended to prove the following facts: The plaintiff sold the iron to one Lepsitz, April 3, 1902, to be paid for in cash and to remain the plaintiff’s property in the. meantime.

Trespass, for assault and false imprisonment. Upon a trial by jury at the October term, 1902, of tlie superior court, Young, J., presiding, a nonsuit was ordered, subject to the plaintiff’s exception. The testimony tended to prove the following facts: The defendants operate an electric street railway between Portsmouth and Exeter. One Iloyt was a conductor upon this railway.

Assumpsit, upon three promissory notes. Trial by jury and verdict for tlie defendants. Transferred from the April term, 1903, of the superior court by Stone, J. The notes were for $500 each, dated September 29,’ 1898, payable to H. J. Goss or bearer in one, two, and three years from date, respectively, and signed by the defendants (eight in number), whose promise was joint and several. The sum of $500 was indorsed upon them, and they were indorsed in blank by Goss.

Case, for personal injuries. Plea, the general issue, with a brief statement that- the plaintiff executed a release of her claim on June 20, 1902, in consideration of |225. Replication, that the release was procured by false representation, with a tender of the sum received. Trial by jury and verdict for the plaintiff.

Case, for personal injuries, brought by the plaintiff, a minor, by his father and next friend. The defendants moved to dismiss the action, on the ground that they were not. liable as matter of law; and the question of law arising on the motion was transferred from the.

Trespass, for assault. The action was commenced by trustee writ, in which the name of John Smith was inserted as trustee. The writ was not served upon any one as a trustee, and there was no such person as Smith intended. The name was inserted in the writ simply to fill out the blank and for no other purpose. Upon the defendant’s motion, the court dismissed the action upon the ground that it was improperly begun by trustee process, and the plaintiff excepted.

Assumpsit, to recover the value of steam furnished the defendant for mechanical and heating purposes, from December 1, 1899, to January 6, 1900. Trial by jury and verdict for the defendant.

Bill in Equity, for contribution between co-sureties upon a probate bond signed by Joseph C. Moore, as principal, and James A. Weston, Alonzo Elliott, Frank Dowst, and Cora L. Brook-house, as sureties. The executors and heirs of Weston are the plaintiffs, and Elliott and Dowst are the defendants.

<p>A decree of specific performance is not a matter of right to which a party is entitled upon proof of the contract, but rests in the sound discretion of the court, and is to be granted or withheld according to the circumstances of the particular case.</p> <p>A finding that a decree of specific performance would be inequitable under all the circumstances authorizes the dismissal of a bill praying for such relief; and such finding cannot be set aside, if supported by any competent evidence, unless it is apparent that it was the result of passion, partiality, or corruption, or that the trier of fact unwittingly fell into a plain mistake.</p>

Pkobate Appeal. Trial by jury and verdict for the plaintiff. Transferred from the September term, 1902, of the superior court by Stone, J. The issue tried was whether John D. Bean in his lifetime gave-the plaintiff, who is his daughter, sixty-seven shares of the capital stock of the West End Street Railway Company standing in his name and unassigned at the time of his decease.

<p>Probate Appeal, from the report of the commissioner on the estate of John L. Davis, disallowing a note for §1,200, dated May 15, 1893, payable to the plaintiff on demand. Trial by jury and verdict for the defendant. Transferred from the September term, 1903, of the superior court by Young, J. The note was presented to the commissioner by one Nichols, to whom the plaintiff had assigned it as collateral security.</p> <p>The plaintiff’s evidence tended to prove that his wife was the step-daughter of Davis; that in 1893, Davis and the plaintiff bought a house in St. Albans, Vermont, for §3,500, of which amount the plaintiff contributed §1,200; that the title to the premises was taken in the name of Davis, who gave the plaintiff the note in suit to show the extent of his interest in the property.</p> <p>The plaintiff's wife was called by him as a witness and testified to the execution of and the consideration for the note. On cross-examination, she testified that §800 of the amount evidenced by the note was her money, which she expected to receive if there was a recovery in this suit; that she never loaned the money to Davis, but let her husband have it; that at the time she did not expect any one would repay it to her, but that the matter was talked over several times between Davis, her husband, and herself, and/ the understanding was that at some time Davis would convey the house to her. The defendant, who is executrix of Davis’ will, did not elect to testify, and upon her motion all the testimony of Mrs. Wright was excluded, subject to the plaintiff’s exception.</p> <p>The defendant filed a set-off for money loaned to Wright and for the use and occupation of the premises by him from the time of their purchase to October, 1900 ; and subject to exception, she was permitted to show their fair rental value. Subject to exception, she was also permitted to show that Davis did business with the Woodsville Loan & Trust Company and with the National Bank of Newbury, and to put in his accounts with those institutions for the years 1893 and 1894, for the purpose of proving that he furnished all the money to pay for the St. Albans house and did not have $1,200 from the plaintiff.</p> <p>The defendant’s counsel in his closing argument called the attention of the jury to the fact that they had not seen the plaintiff during the trial, and said that the case was conspicuous by his, absence, that he knew all about the transactions which were in controversy, and could tell about them if he were present. To these remarks the plaintiff excepted.</p>

Bill in Equity, to foreclose a mortgage given, by tlie defendant Whitcher to the plaintiff, dated July 80, 1897, and recorded August 4, 1897.

<p>Case, for negligence. Plea, the general issue. Trial by jury and verdict for the defendant. Transferred from the October term, 1901, of the superior court by Stone, J. The declaration contains two counts. The first is to recover the amount paid by the plaintiffs in satisfaction of a judgment which the Rolfes obtained against them and the defendant jointly, for damages occasioned the Rolfes’ storehouse by fire communicated to it from a potato car in the plaintiffs’ railroad yard at Penaeook. The second is to recover damages which the plaintiffs sustained by reason of the destruction of the potato car and the partial burning of another car in the same fire.</p> <p>The defendant’s agent, Griffin, procured the potato car of the Central Vermont Railroad, to ship potatoes from Lawrence, New York, to the defendant at Penaeook. While the potato car was in the railroad yard at Penaeook, a fire which originated in that car consumed it, together with the Rolfes’ storehouse and part of another car. The cars were the property of the Central Vermont Railroad, but it appeared that according to the rules of the Master Car Builders’ Association, of which both roads were members, the plaintiffs were required to repair the damaged car and pay to the owners the value of the one destroyed, which they did, and that the shipping contract under which the potato car was obtained was made in behalf of the plaintiffs, who were connecting carriers, as well as the Central Vermont Railroad.</p> <p>By the terms of the contract, the defendant was to prepare the interior of the potato car for the purposes for which he proposed using it, load and unload it, and care for its contents during transportation; and it appears that he in fact assumed the entire work of fitting up the car, put in a stove, and took charge of the fire. ■The plaintiffs and their employees paid no attention to these matters ; they simply transported the car. In the afternoon before the fire, when the car had been in the Penaeook yard some three days for the purpose of unloading, the crew of the local freight, while shifting cars about the yard in the usual course of business, in order to take out a car north of the potato car, moved the latter 'from where it was standing and where a fire would not have been communicated from it to the Rolfes’ storehouse, to a place near the storehouse, by means of a flying switch — a customary way of shifting freight cars. While the car was thus located, the defendant’s servant, Griffin, rebuilt the fire and completed the unloading of the car; and after it had stood there for about two hours, locked it up and went away, leaving a fire burning hr the stove. About three o’clock the next morning, it was discovered that the cars and storehouse were on fire. The employees of the railroad knew nothing of the condition and management of the stove, or of facts putting them on inquiry that a defective stove or unsafe fire was being maintained in the car. They had worked about the yard, passed by the'ear while it was being unloaded, and knew that it contained a stove with a fire in it; but they made no investigation to see how it was being managed, although they could have done so prior to the time when the unloading was completed and the car locked up for the night.</p> <p>In addition to this undisputed evidence, the plaintiffs introduced the judgment, the declaration, and portions of the evidence and of the judge’s charge in the Rolfes’ suit, showing what issues were there raised and passed upon; also record evidence of the amount paid by the plaintiffs to satisfy the Rolfes’ execution, and their expenditures on account of the burned cars. Upon this evidence, and subject to the plaintiffs’ exception to a denial of their motion to direct a verdict in their favor, the case was submitted to the jury. The court charged that the question of the defendant’s negligence in reference to the destruction of the potato car and the storehouse was conclusively determined by the judgment in the Rolfes’ suit; that as to these properties, the only question for the jury to consider was whether the plaintiffs exercised ordinary care in managing the potato car; and that if they were negligent in so doing, and their negligence contributed in any way to produce the loss, they could not recover. As to the second car, the jury were instructed that they should consider, in addition to the question of the plaintiffs’ exercise of care, the further question whether the damage to that car was due in whole or in part to the negligence of the defendant; that as to that car, the question of the defendant’s negligence was not determined by the Rolfes’ judgment; and that upon all the issues submitted, the burden of proof was upon the plaintiffs. The plaintiffs requested certain instructions, which were denied subject to exception, and also specifically excepted to portions of the charge which were in conflict with their requests. The substance of the requested instructions is stated in the opinion.</p>

Case, for deceit in the sale of a cow. Trial before Young, J., at the May term, 1903, of the superior court, and verdict for the plaintiff for $45 and interest from the date of the writ. To induce the plaintiff to purchase and for the purpose of deceiving her, the defendant, knowing the representation to be false, told the plaintiff the cow was a new milch cow and was giving sixteen quarts of milk a day.

Assumpsit, to recover a balance of account for medical attendance upon small-pox patients quarantined by the board of health of the city of Nashua. The plaintiff was city physician in 1902 and 1903, and as such received a salary of $400 per year. He was at the same time chairman and member of the board of health, at a salary of $100 per year. The board consisted of three members. After September 18, 1902, one of the members declined to act.

Petition, for a writ of certiorari. The defendant Colburn was committed to jail on an execution issued in an action of assumpsit brought against him by the plaintiffs, and applied to the other defendants, who are the two justices appointed by the court, to be admitted to take the oath for the relief of poor debtors.

<p>Trees standing within the limits of an ancient public highway, upon land not required for the accommodation of actual travel, are the property of the adjacent owner, who cannot be deprived of his right therein without compensation, after a legal hearing.</p> <p>A landowner who removes trees which stand within the limits of an adjacent highway, and which have been designated by the town authorities for the purpose of shade and ornamentation, is not liable to the penalty prescribed by section 8, chapter 98, Laws 1901, unless his property right has been divested in the manner provided by section 8 of that act.</p>

<p>Whore an employer’s liability policy provides that in the event of an injury covered thereby the insurer will defend the suit, settle the claim, or pay a specific sum to the insured, and stipulates that the employer shallnot adjust the claim or interfere in the proceedings, the insurer, if he elects to defend, is bound to protect the insured against liability at all stages of the litigation, including satisfaction of the judgment to the extent of the agreed indemnity ; and he is not absolved from this obligation by the fact that the insured has not paid the amount of the judgment against him, or is unable to do so by reason of insolvency.</p> <p>A further provision in such policy, that no action shall lie against the company unless brought to reimburse the insured for loss actually sustained and paid by him in satisfaction of a judgment after trial of the issue, applies solely to cases where the insurer denies liability for injuries which are made the subject of suit and refuses to defend.</p> <p>If the judgment in an action for negligence is uncollectable because of the defendant’s insolvency, equity may require that the avails of a liability policy held by him be paid by the insurer to the plaintiff, in satisfaction of the latter’s claim against the insured.</p>

<p>Case, for negligence. Trial by jury and verdict for the plaintiff. Transferred from the April term, 1903, of the superior court by Stone, J., upon the defendants’ exceptions to the denials of their motions for a nonsuit and an order of judgment in their favor. For the general facts, see ante,p. 61.</p>

<p>In an action against a railroad company to recover for injuries sustained by a brakeman in a collision between opposing trains, certain evidence deemed insufficient to warrant a submission of the question whether rules of the corporation relating to the movement of trains were ambiguous and confusing, and consequently unreasonable.</p> <p>In such action, evidence that the employees in charge of the colliding trains placed opposite constructions upon rules of the company, and that the effect of orders issued in duplicate for the government of both trains was the subject of discussion, is not competent on the question of the interpretation of the rules, although it is admissible as a part of the res gestas, in explanation of subsequent conduct; and evidence that on prior occasions the same trainmen disregarded plain provisions of the rules for the movement of trains is not admissible, when it appears that such practice was not customary and that the company had no knowledge thereof.</p> <p>A dispatcher charged with the duty of directing the movement of trains over a railroad is not the fellow-servant of a brakeman who suffers injury through the improper issuance of such orders, within the rule exempting the master from responsibility for injuries resulting to one employee from the negligence of another in the same service.</p> <p>Where the rules of a railroad company provide that there should be at least one telegraph office between those at which opposing trains receive meeting orders, a disregard of such regulation by a train dispatcher without sufficient cause is evidence of negligence on the part of the corporation.</p> <p>Whether a railroad collision resulted from the error of a train dispatcher in the transmission of orders, or from a violation of the company’s rules by trainmen, or from both causes concurrently, is a question of fact.</p>

On the day of the accident the plaintiff had completed the repairs upon a flat car, with the exception of putting on a pin-lifter. When he returned to work after dinner, he found that the car had been moved to track No. 4, and stood with its northerly end from ten to thirty feet south of the transfer table.

Case, for personal injuries received in a collision between the plaintiff’s and the defendant’s carriages, and alleged to have been caused by the defendant’s negligence. Trial by jury and verdict for the plaintiff. The defendant excepted to the denials of his motions for a nonsuit and for an order of judgment in his favor.

Assumpsit, to recover on a certificate of membership issued to the plaintiff’s husband by the defendant association. Trial at the September term, 1903, of the superior court before Young, J., who found a verdict for the defendants, subject to the plaintiff’s exception.

<p>The statute which requires a warning whistle to be sounded at grade crossings imposes that duty upon railroad companies for the benefit of highway travelers, and not for the protection of pedestrians upon the tracks.</p> <p>A person injured by collision with a train while walking upon a railroad track cannot recover therefor on the ground that the servants of the company were guilty of negligence in failing to discover his presence, when it conclusively appears that by the exercise of ordinary care he would have observed the train in time to have escaped injury.</p> <p>Case, for personal injuries. Trial by jury. At the close of the plaintiff’s evidence a nonsuit was ordered, subject to exception. Transferred from the April term, 1903, of the superior court by Eeaslee, J.</p> <p>The evidence tended to prove the following facts: The plaintiff was struck by the defendants’ train, while walking on the track between West Andover and Potter Place, at about five o’clock in tbe morning of December 6,1901. Tbe country is sparsely settled* but the railroad track is habitually used for such travel as there is between the two places mentioned. The plaintiff had for some time been accustomed to walk over the track at about the same time in the morning, and knew that a train which ran at a high rate of speed was due at that time. She was in the habit of relying upon the whistle for the West Andover crossing and the roar of the train to warn her of its approach; but on the morning of the accident the whistle was not sounded, and she neither saw nor heard the train until her attention was attracted by the locomotive headlight, when she made an unsuccessful attempt to get off the track. She was about 2,600 feet from West Andover when struck* and could have seen the train when it was 3,900 feet away. She? looked for it when she stepped upon the track and two or three times afterward.</p>

<p>A statute authorizing an electric light and. power company “ to take and hold and to purchase and hold such lands and interests in land as may bo reasonably necessary,” and providing for the ascertainment and payment of the damages occasioned thereby, confers upon the corporation power to take land for a public use without the consent of the owner, through an exercise of the right of eminent domain.</p> <p>Where a company engaged in generating and selling electricity locates wires in the highways, and procures and attempts to exercise the right of eminent domain, it takes upon itself the obligations of a f/Musi-public corporation, and is bound to supply electricity at reasonable rates and without discrimination to all persons, so far as it has the capacity to do so; and the use of land by such corporation for constructing and maintaining a line of wires in furtherance of its business is a “ public use, ” within the meaning of article 12 of the bill of rights.</p>

Bill in Equity, to restrain the defendant city from building a baseball park at the Plains, a public common containing about eleven acres, which was given to the city in 1716 for the drawing of a militia for the town and province and has been used since for that purpose and by the public generally for a playground; also to restrain the city councils from voting to fence the Plains “ for the purpose of amusement and the better protection of city property.” The bill alleges…

Foreign Attachment. The plaintiff recovered judgment, upon default against the defendant in the Rochester police court,, upon a claim for necessaries furnished the defendant or his family, and subsequently brought suit on the judgment in the same court, and summoned the trustees, who owe the defendant less than twenty dollars for wages earned before the service of the trustee-process upon them.

Case, for negligence. Trial by jury and verdict for the plaintiffs. 'Transferred from the April term, 1903, of the superior court by Peaslee, J. The action is the same as that reported in 71 N. H. 522. The defendants’ motions for a nonsuit, that a verdict be directed in their favor, and that the verdict be set aside were denied, subject to exception.

Bill in Equity, containing the following allegations, in substance : The Samuel Hano Company is a corporation duly organized under the laws of this state, having its place of business at Nashua. The other defendants — all non-residents of the state— are the stockholders of the corporation. The plaintiffs are creditors of the corporation, and bring the bill in behalf of themselves and all other creditors who may join them.

<p>Assumpsit, on a policy of insurance upon the life of Charles J. Busher. Trial at the September term, 1903, of the superior court before Wallace, C. J., who found a verdict for the defendants, subject to the plaintiff’s exception.</p>

Trover, for a lady’s suit and waist. Trial at the September term, 1903, of the superior court before Peaslee, J., who found a verdict for the plaintiff, subject to the defendant’s exception. In April, 1903, the defendant and her father called at the plaintiff’s store, and the father stated that he wished to purchase or lease the clothing in question.

Assumpsit, to recover money paid by the plaintiffs to the defendants, who constitute the state board of license commissioners. The cases were tried at the November term, 1903, of the superior court before Wallace, C. J., who found a verdict for the defendants in each, subject to the plaintiffs’ exceptions.

Bum in Equity, by the executor of the will of Abbie D. Harriman, praying the advice and direction of the court. The parties interested in the estate are the widower of the testatrix and her three children by a former husband. All answered, requesting a determination of their rights in the estate. Trial at the November term, 1903, of the superior court before Peaslee, J.

Assumpsit, for money Had and received and for money loaned. Trial by jury and verdict for tbe plaintiff. Transferred from tbe November term, 1903, of tbe superior court by Peaslee, J. The defendant is the plaintiff’s husband. The evidence bearing on the question transferred is stated in the opinion. The defendant’s motion for a nonsuit was denied, and he excepted.

Petition, for the assessment of damages under the provisions of the defendants’ charter (Laws 1891, c. 158). The plaintiff owns a tract of land in Allenstown which entirely. surrounds a natural pond containing fifteen to eighteen and a half acres. The only outlet of the pond is by percolation through the ground.

<p>Where a liquor license is revoked and cancelled by the state’board of license commissioners because of illegal sales, the licensee is not entitled to a repayment of the fee pro tanto for the unexpired time, although he may have been found not guilty of the offences upon a trial by jury.</p>

Bile in Equity, by the administrator and widow of John J. Lee and the guardian of his only child, to avoid a fraudulent conveyance.

Assumpsit, upon an insurance policy issued by tbe defendants upon tbe life of Hugh Dwyer, August 29, 1901, payable to the plaintiff. The insured died March 20, 1902. At the close of the evidence the jury were directed to return a verdict for the defendants, and the plaintiff excepted. Transferred from the September term, 1903, of the superior court by Peaslee, J.

Assumpsit, for services. Facts agreed. Transferred from tbe January term, 1904, of tbe superior court by Wallace, C. J. At a meeting of tlie lands and buildings committee of the board of mayor and aldermen of Manchester, held March 21, 1903, Charles W. Skinner was employed as janitor of the police station for one year from the first day of the following April.

Probate Appeal. The case is the same reported ante, p. 254. Trial by jury and A^erdict for the plaintiff. Transferred from the January term, 1904, of the superior court by Peaslee, J., upon tire defendants’ exceptions.

<p>Certain evidence deemed insufficient to warrant a finding that a servant engaged in operating a circular saw was ignorant of the special danger which caused his injury.</p> <p>Case, for negligently causing the death of the plaintiff’s intestate, George Archambeault, by failing to properly instruct him in regard to the use of a machine upon which he was set at work in the defendants’ box factory. Trial by jury and verdict for the plaintiff. At the close of the plaintiff’s evidence the defendants’ motion that a verdict be directed in their favor was denied, subject to exception. Transferred from the September term, 1903, of the superior court by Wallaxe, C. J.</p> <p>The plaintiff’s evidence tended to prove the following facts: At the time of his injury the plaintiff’s intestate was fifteen years and seven months old. He possessed all his faculties and was very intelligent and quick to learn. The machine upon which he was set to work consisted of a small circular saw called a stripper,' located on the right-hand side of a bench and used to saw off the edges of boards to render them straight, and of an appliance known as a matcher, attached to the left side of the bench and used to tongue and groove the boards after their edges had been straightened. Archambeault ran the matcher, and one Sylvester operated the stripper. The decedent had run a matcher in another mill from October, 1901, to March, 1902, and for the defendants from about April 1 to June 14, 1902. While thus employed by the defendants, he improved every opportunity to learn to run the stripper, and had operated it for a few minutes on ten or twelve occasions during temporary absences of Sylvester. Learning that Sylvester was to be absent for a few days, the decedent applied for the job of running the stripper during the time, and said, in reply to an inquiry, that he thought he could operate it. ■ The defendants’ foreman consented, and by his direction Sylvester told the decedent to stand one side of the saw while running it, to poke the edgings away with a stick when any were collected on the table, and to go easy when he was at work upon cross-grained lumber, as a different course would stop the saw. No other instructions were given. The decedent ran the stripper for a day and a half without trouble and apparently in a proper manner. Just before his injury he was observed operating the machine in the customary way, and the next moment he was seen about four feet from it, with both hands pressed upon his abdomen. In response to an immediate inquiry, he said that- a piece of edging had been thrown from the saw and had penetrated his bowels. He died from his injury two days later. If edgings were allowed to accumulate on the bench, there was danger that they would be caught by the saw and be thrown back with great force against the operator. They were often thrown back, and the way to avoid being struck by them was to stand at one side of the saw.</p>

Petition, for an abatement of taxes. Facts agreed. Transferred from the January term, 1904, of the superior court by Wallace, C. J. At a legal town-meeting held in March, 1901, and under a proper article in the warrant, the defendant town voted to raise the sum of $150 “to help pay a watchmen for the village.” The plaintiff was present at the meeting and protested against this action. The money thus raised was included in the assessment for that year.

Action, to recover for aid furnished to the defendant’s minor son. The defendant, who lived with his wife for two months after the child was begotten, offered to show that his wife was guilty of adultery during the period of gestation. The evidence was excluded, and the defendant excepted. Transferred from the February term, 1904, of the superior court by Stone, J.

Trespass quare clausum. Facts found by referees to whom were referred (by the parties to the action and certain other persons asserting rights in the bed of Nilus river, the adjacent land, and the dam across the same) all questions arising in the action, and all questions relating to “ all rights, privileges, estates, and easements in and to the premises,” with a provision that the determination by the referees of questions of fact should be final and that questions of law…

Trover, by a deputy sheriff against the receiptor of the goods attached in Fairfield v. Fay, ante, p. 160. The facts are stated in the report of that case. Upon a trial at the May term, 1902, of the superior court before Young, J., judgment was ordered in favor of the defendant, subject to the plaintiff’s exception.

Replevin, for lambs. Trial at the February term, 1908, of the superior court before Stone, J. The plaintiff’s evidence tended to prove the following facts: His farm and the defendant’s were situated near each other. He had a large flock of Cheviot sheep, and the defendant had a large flock of Cotswold sheep. There is a marked difference in the form of body and the quality of wool of these breeds.

Libel bob Divoboe, for desertion. Trial before Young, J., at the September term, 1903, of the superior court.

Probate Appeals. The cases are those reported ante, p. 216. Held: subject to the defendant’s exception, that the only question for trial in the first case was the amount of rent collected by the defendant’s intestate, George W. Ela, between 1878 and 1876 ; and the only questions in the second case were the amount collected between 1873 and 1879, and whether the claim had been released.

Case, for maintaining a fence over five feet in height. The ad damnum is $1,000. At two prior trials of the case the juries returned verdicts in favor of the plaintiff for $25 and $20 respectively. At each trial the plaintiff testified that his loss of rent by the defendant’s wrong was $100. It is not probable that another jury will award over $100 damages. The defendant’s motion for a trial of the case by the court was denied, subject to exception.

<p>Case, for negligence. Transferred from the October term, 1901, of the superior court by Stone, J.</p>

At a session of the house of representatives held February 18, 1903, the following resolution was adopted : Resolved, That the house of representatives requests the opinion of the supreme court upon the following, namely: First: Did His Excellency George A. Ramsdell, governor of New Hampshire, have authority to make and execute the following appointment and agreement in behalf of this state or otherwise ? “AGREEMENT. “Memorandum of an appointment and agreement, made this…

<p>The approval required of the governor and council by section 5, chapter 95, Laws 1903, is limited to the determination of the number of special agents to be appointed by the state board of license commissioners and the amount of their compensation.</p>