Volume 73 — New Hampshire Reports

Case, for negligence. Trial by jury at the January term, 1904, of the superior court, resulting in a disagreement. The defendants’ motion to direct a verdict in their favor was denied, subject to exception, and the question thus raised was transferred by a bill of exceptions, allowed by Ohamherlin, J.

Bill in Equity, by tbe executor of tbe will of Ebenezer Ferren, praying for directions as to tbe execution of tbe will.

Assumpsit, for two months’ rent. Facts agreed, and case transferred from the May term, 1904, of the superior court by Pike, J. In December, 1903, the plaintiff leased to the defendant certain premises in Nashua at a monthly rental of $33.33, with the knowledge and understanding that the latter was to use the same for the purpose of exhibiting to the public, and without charge to them, the various prices offered at race tracks in the state of New York ; that he was to receive…

<p>The statute empowering the town of Littleton to establish water-works (Laws 1903, c. 355) does not authorize the taking of the property of an unknown owner, or of one with whom the town is unable to agree as to damages, by mere entry and seizure, but only upon the proceedings for condemnation therein specified; and an entry upon such premises in advance of judgment of condemnation is tortious, unless a bond conditioned on the payment of all damages is filed, as required by section 3 of the act.</p>

Case, for personal injuries. Trial by jury and verdict for the plaintiff. At the close of the plaintiff’s evidence the defendants’ motion for a nonsuit was denied, and they excepted. Transferred from the November term, 1903, of the superior court by Stone, J. The plaintiff’s evidence tended to prove the following facts: At the time of his injury the plaintiff had been employed by the defendants for about seven years, and had served as conductor for three and one half years.

Case, for personal injuries alleged to have been caused - by the defendants’ failure .to sufficiently instruct the plaintiff as to the proper method of operating a cotton picker upon which he was set at work by them and to warn him of the dangers, of such employment. Trial by jury and verdict for the plaintiff.

The defendant was duly elected city clerk on the third Tuesday of March, 1903, and having qualified therefor, entered upon the performance of the duties of the office. On the third Tuesday of March, 1904, the city council failed to elect a city cleric to succeed the defendant. At a regular meeting of the council held March 22, 1904, it was voted to proceed to elect a city clerk. The mayor vetoed the vote, and no further action was taken in regard to the matter at that time.

Information, by the solicitor, which the defendant moved to quash. The motion was denied, and the defendant excepted.

Petition, for mandamus. Facts found, and case transferred from the October term, 1901, of the superior court, by Stone, J. The plaintiff is incorporated under the laws of Maryland, and under authority of its charter is engaged outside of New Hampshire in the business of a fidelity and surety company and in the burglary' insurance business.

Case, for negligence. Trial by jury and verdict for the defendants. Transferred from the October term, 1903, of the superior court by Pike, J. June 15, 1901, the plaintiff, while riding a bicycle along a highway in Hampton, ran into an open culvert, the sides of which it was claimed formed a dangerous embankment, and was injured.

Case, to recover for damages alleged to have been suffered by the plaintiff at the hands of the defendant, who is a Christian Science healer. Transferred from the April term, 1902, of the superior court by Peaslee, J. The declaration contains counts in contract, negligence, and deceit. Two trials were had in the superior court. At the first trial a verdict was ordered for the defendant upon the count in contract, subject to the plaintiff’s exception.

Case, for negligence. Trial by jury and verdict for the plaintiff. The defendants’ motion for an order of nonsuit was denied, subject to exception.

CAsE, for negligently leaving in the highway six cakes of ice, which frightened the plaintiff's horse and caused him to run away and to be injured. Trial by the court and verdict for the plaintiff.

Case, for personal injuries. Trial by jury and verdict for the defendant. Transferred from the April term, 1904, of the superior court by Stone, J. On the day of the accident the plaintiff was traveling on a highway with a horse and wagon. The defendant was following-in an automobile, at a much faster rate of speed; and when he attempted to pass the plaintiff, her horse became frightened, and she was thrown from her carriage and injured.

Petition, for the consent of the court to the discontinuance of a highway, filed September 12, 1903. Facts agreed.

Case, for damages occasioned tbe plaintiff by tbe defendants’ construction and operation of a street railway upon and over a highway in front of bis property. Tbe writ is dated September 21, 1903.

Case, for negligence. Trial by jury and verdict for tbe plaintiff. Transferred from tbe September term, 1902, of tbe superior court by Stone, J. Tbe case is tbe same as that reported in 71 N. H. 427, and the evidence presented by tbe plaintiff was substantially that submitted at the former trial. The defendants excepted to tbe denial of their motions for a nonsuit, that a verdict be directed in their favor, and that the verdict of tbe jury be set aside.

Assumpsit, for the breach of an implied contract to manufacture upon the plaintiffs’ order a safe and proper piston rod for an ■engine. Trial by jury and verdict for the plaintiffs. Transferred from the September term, 1903, of the' superior court by Wallace, C. J. The plaintiffs are engaged in manufacturing engines at Nashua, and the defendants in making forgings at the same place.

<p>The admission of incompetent evidence does not furnish causo for reversal if an instruction to the jury to disregard the objectionable matter is sufficiently full and explicit to prevent the error from having effect.</p> <p>Whether a trial was rendered unfair by incompetent testimony which the jury were instructed to disregard, is a question of fact determinable by the trial court.</p> <p>The asking of a specific question in good faith, after the exclusion of general testimony upon the same subject, is not exceptionable.</p> <p>A remark by the court during a colloquy with counsel, that further discussion might result in the reversal of a ruling, does not furnish cause for setting aside a verdict.</p> <p>The admission of incompetent testimony which merely tends to prove a conceded fact is harmless error.</p> <p>The question as to what portion of the argument of counsel is included within an exception claimed is one of fact determinable by the trial court. Tlie denial oí a motion to set aside a verdict for improper argument of counsel is equivalent to a specific finding that the remarks objected to did not render the trial unfair.</p> <p>A ruling by the trial justice is deemed to be accepted as the law of the ease, unless an exception thereto is taken and noted at the time.</p>

Bill in Equity, for the construction of a deed dated December S, 1900, running from Matthew J. Harvey to the plaintiff, his. heirs and assigns, in the ordinary form of a deed of warranty, and containing after the description and before the habendum the following: “This deed is made on the express condition that no building or other structure, for the space of twenty-five years from this date, shall be built or placed upon said lot within twenty feet of the northerly side…

Assumpsit, for the tuition of a child residing with his parents in the defendant town. If it should be found that the action should be against the school district instead of the town, an amendment accordingly will be allowed upon terms. Transferred from the April term, 1904, of the superior court by Stone, J.

<p>Where a testator is deprived of the use of some of his faculties by mere physical infirmity, his will is attested in his presence if he is conscious of the presence of the witnesses, understands what they are doing when they sign their names, and could, but for his disability, readily see and hear them if so disposed.</p> <p>Upon the question whether a testator could readily see and hear the attesting witnesses to his will, evidence of subsequent experiments under similar conditions is relevant.</p> <p>Experimental evidence which is relevant to the is^ue is admissible only when its tendency is to aid, and not to confuse, the jury; and whether it has such tendency is a question of fact.</p>

<p>A private individual cannot file an information in the nature of a quo vjarrcmto, for the purpose of trying the title to a public office.</p>

<p>It is the duty of a master to provide a reasonably sufficient number of competent workmen, and to employ and retain in his service none but reasonably competent and suitable persons.</p> <p>If the proper performance of the master’s work requires the employment of servants possessing peculiar qualifications, it is to be presumed, in the absence of evidence to the contrary, that a reasonably sufficient number of such workmen were provided.</p> <p>A master who furnishes a reasonably sufficient number of servants competent to perform labor requiring peculiar skill is not liable to an employee for injuries resulting from the incompetence of a person assigned to such work by the foreman in charge.</p>

Bill in Equity, for an injunction to restrain the defendants from diverting water from Sugar river. Transferred from the May term, 1904, of the superior court by Wallace, C. J. The plaintiff owns a tract of land situated upon the southerly side of the river and also an unutilized water-power furnished by the river adjacent to his land.

Assumpsit, upon an order dated July 8, 1889, drawn by John S. Capen upon John W. Drew and Wentworth & Drew in favor of the plaintiff, for “ whatever sum may be due me on settlement between me and said Parsons, providing there be due me that sum from you,” and accepted, “Wentworth & Drew by John W. Drew.” Trial by jury and verdict for the plaintiff.

<p>A nonsuit is properly ordered in an action for personal injuries when the causal connection between the alleged negligence and the injury complained of is upon the plaintiff’s evidence left wholly to conjecture, and when the facts proved are consistent with two or more equally probable theories leading to different legal results.</p> <p>Case, for personal injuries. Trial by jury and verdict for the plaintiff. The defendants’ motion for a nonsuit was denied, and they excepted. Transferred from the November term, 1902, of the superior court by Young, J.</p>

Case, for negligence. Trial by jury and verdict for the plaintiff. Transferred from the March term, 1904, of the superior court by Stone, J. The plaintiff’s evidence tended to prove the following facts: About five o’clock on the afternoon of January 29, 1903, the plaintiff’s intestate, while driving over a grade crossing in Andover, was struck lay a southerly bound train and fatally injured.

Case, for negligence. Trial by jury and verdict for the plaintiff. Transferred from the April term, 1904, of the superior court by Peaslee, J. The case is the same as that reported in 72 N. H. 269. ’ The jury had a view of the premises.

Case, for personal injuries. Trial by jury and verdict for tbe plaintiff. Transferred from the May term, 1904, of the superior court by Pike, J. The defendant’s exceptions to the exclusion of evidence and the argument of the plaintiff’s counsel sufficiently appear in the opinion. The plaintiff is seventy-one years of age.

<p>CASE, for killing the plaintiff's cattle. Trial by the court. rUralisferred from the May term, 1904, of the superior court by Wallace, C. J. One count of the declaration alleged that the cattle, having escaped from the defendants' cattle yard at Claremont Junction, went upon the defendants' railroad by reason of their negligence in not maintaining cattle guards at a certain highway, and were run over and killed.</p> <p>The plaintiff’s evidence tended to prove the following facts: The defendants’ railroad crosses a highway at Claremont Junction nearly at right angles. There are no cattle guards at this crossing. The defendants have long maintained a cattle yard at that station, on the south side of the highway, for the use of shippers of cattle over their road. The yard is divided into three pens. The hasp of the door to one of the pens was out of repair and would not fasten the door. About a week prior to September 21, 1903, the plaintiff applied to the defendants’ station agent at Claremont Junction for a car to ship certain cattle from that station to Ipswich, Massachusetts. The defendants were unable to furnish a car until September 19. The plaintiff decided to ship the cattle September 21; and in the afternoon of that day he drove seventeen cows and six calves to the station for shipment to Ipswich, and placed them in the cattle yard, a portion of them being put in the pen having the defective door fastening. He informed the station agent that the cattle were there, and that he was ready to ship them that afternoon. The agent learned upon inquiry of the plaintiff that he had no United States license to ship the cattle into another state and informed him that he must procure such license before the shipment could be made. The plaintiff thereupon telephoned to the- United States cattle inspector at Boston and arranged to have an inspector sent to Claremont Junction that night. The agent told the plaintiff to leave the cattle and ship them in the morning. The plaintiff decided to leave them in the cattle yard over night, and there was no objection to his doing so -on the part of the agent. The agent informed the plaintiff that the door of one of the pens would not fasten, and that he must nail it with a board. The plaintiff nailed two boards across the door in the agent’s presence, and went away about six o’clock, leaving the cattle in the yard. He returned between six and seven o’clock the next morning, bringing hay to feed the cattle and vessels for use in watering them and in milking the cows. He found that the cattle had pressed open the door which he had fastened, and had escaped. Four cows and six calves crossed the highway, went in a northerly direction on the railroad, and were killed by a passing train.</p> <p>The defendants’ evidence tended to prove the following facts: Their station agent told the plaintiff he might leave the cattle in the yard at his own risk. While the cattle which were killed were in the yard the agent took no charge of them, nor did he assume charge of the survivors until the next day, when he gave a shipping receipt for them. Among the defendants’ rules were the following: “ Station agents liave charge of the company’s property at their respective stations, and the general direction of the business of the road at those points, subject to the general rules and special orders. They will have charge of the tracks, sidings, switches, grounds, etc., at the station.”</p> <p>The parties agreed that if there was evidence sufficient to entitle the plaintiff to have the question of the defendants’ alleged negligence submitted to the jury, the plaintiff should have judgment for $216 and interest from the date of the writ; otherwise (excepting as to certain contingencies not material as the case has been considered), there should be judgment in favor of the defendants.</p>

The plaintiff’s evidence tended to show that the only instructions given the three men were that the plaintiff should take two wrenches, tighten tire loose bolts that held the buckets to the chains, and if any bolts were missing insert new ones; that Belmore was to stand at the clutch and apply and release the power when it was necessary to start or stop the carrier; and that Thibedeau was to transmit word from the plaintiff to Belmore when to start and stop the carrier.

Bill in Equity, to foreclose a mortgage. The case is the same as that reported in 72 N. Ii. 451, where it is held that $1,()00 of the plaintiff’s claim is a first lien on both tracts of land; and this part of the plaintiff’s claim is hereinafter referred to as “ the first lien.” The case was heard at the February term, 1904, of the superior court before Chamberlin, J., who made a decree charging one half of the first lien on each tract of land.

Action, against Milton Read and Fred Nelson, to recover the value of logs cut by the latter on the plaintiff’s land. The declaration contains a count in trespass quare clausum et de bonis and one in trover. Trial by jury and verdicts for the plaintiff, against Read on the count in trover and against Nelson on the count in trespass.

Petition eor Partition. Facts found, and case transferred from the April term, 1904, of the superior court, by Qhamberlin, J. January 5, 1885, Russell H. Davis owned and was in possession of the premises described in the petition. On that day he gave Porter Darling a bond to convey the premises to him by a quitclaim deed, on the first day of the following April, upon the payment of 0208. Darling made the payment, but no deed was ever given to him.

Case, fox negligence. Trial by jury and verdict for tbe plaintiff. Transferred from tbe February term, 1904, of tbe superior court by Chamberlin, J. Tbe plaintiff’s evidence tended to prove tbe following facts: On January 8, 1908, tbe plaintiff was employed by one Frost, an. independent contractor, upon tbe construction of a power-bouse for tbe defendants, located upon tbe easterly side of Cocbeeostreet in Dover.

Assumpsit, upon a contract for tbe sale of standing timber. Trial by jury and verdict for tbe plaintiff. Transferred from the June term, 1904, of tbe superior court by Stone, J. Tbe court ruled that tbe contract declared upon was conclusively established by tbe correspondence between tbe parties, and the defendant excepted.

<p>In an action against an administrator ior the recovery of a debt due from the intestate, the defendant cannot set off his personal claim against the plaintiff’s demand.</p>

Bill in Equity, for an accounting. Facts found, and case transferred from the June term, 1904, of the superior court, by jStone, J. The defendant carried on the hotel business for one year under ■a written agreement with the plaintiff, the material provisions of which are as follows: “ Mahlon II.

Case, for deceit in the sale of the furniture in a boarding-house. Trial before Peaslee, J., at the May term, 1904, of the superior court, and verdict for the defendant.

Appeal, from the decision» of the selectmen in the laying out of a highway. The grounds of complaint in the appeal are: (1) The decision laying out the highway; (2) the assessment of damages ; (3) that one of the selectmen was disqualified by interest, as an owner of land over which the highway passed.

Case, for negligence. The declaration alleged that on May 22, 1903, the plaintiff was a laborer upon the highways in the defendant town, under the immediate supervision and control of one Davis, and that he was injured by reason of a defective cart upon which he was riding by the direction of Davis; that it was the duty of the town to furnish him with safe appliances, and especially a safe cart, with which to do his work, and that it failed to perform its duty in this…

Assumpsit, for not accepting goods. Trial at the January term, 1904, of the superior court before Pike, J. Each defendant entered into a contract with one Cady, the plaintiff’s agent, to buy goods of the value of $91.24, and each as purchaser signed a memorandum of the contract, in which the quantity and kind of goods was stated, together with the price, time of payment, and date of shipment. Cady signed each memorandum in his own name.

<p>Case, for negligence. The declaration contains three counts. The first count alleges that the defendants own and maintain a common sewer for carrying away surface water and sewerage from the dwelling-houses in the city, which empties into a brook that runs through the lot on which the plaintiff’s dwelling is located; that they so negligently managed the sewer that large quantities of filth and excrement were emptied into the brook, and were allowed to become deposited upon its bed and banks and to remain exposed, rendering the plaintiff’s premises unhealthy and causing offensive and unwholesome smells and stenches to pervade the dwelling; and that by reason thereof the plaintiff’s intestate sickened and died. .The second count alleges that the deffendants own and maintain a system of water-works for the purpose of furnishing to citizens a supply of water for domestic and other uses, receiving compensation therefor; that the defendants were negligent in not cleaning out their water-pipes and providing means whereby they could be cleaned out; and that in consequence thereof, foreign and decayed matter became lodged in the city’s pipes, entered the pipes leading, to the plaintiff’s dwelling, and was there drank by the plaintiff’s intestate, causing him to sicken and die. In the third count the negligent acts and omissions alleged in the first two are set out as concurring causes.</p> <p>The defendants filed a special demurrer, setting forth that the declaration contains separate causes of action,, arising from the alleged negligent acts of two distinct boards, — the board of street and park commissioners (Laws 1903, c. 223) and' the board of water commissioners (Laws 1881, c. 256, s. 20), — that the street and park commissioners are public officers over whom the city has no control, and for whose negligent acts and omissions it is not responsible, and that the declaration is void for duplicity. The demurrer was overruled by Chamberlin, J., at the February term, 1904, of the superior court, and the, defendants excepted.</p>

<p>INDTOTMT~NT, for rape upon a woman child under the age of sixteen years. Trial by jury and verdict of guilty. Transferred from the November term, 1904, of the superior court by UliamberUn, J.</p> <p>The woman, had a child born in July, 1904. Subject to exception, the state was permitted to exhibit the child to the jury, and to argue from peculiarities of features claimed to be common to the child and the defendant and from a general resemblance between them.</p> <p>After verdict, the defendant moved to set the same aside and for a new trial, on the ground of alleged misconduct of the state’s counsel and because of newly discovered evidence. The misconduct alleged was that counsel for the state, after exhibiting the child to the jury, upon returning it to the mother, who sat within the bar, kissed the child in the presence of the jury. The act was denied by the state’s counsel, but they were not required to submit evidence, as tlie court held that the act, if it occurred, was not prejudicial to the defendant, and that the trial was not rendered unfair. Upon cross-examination, the mother of the child answered in the negative various inquiries as to her more or less intimate association with other men. The newly discovered evidence tended to contradict her in these particulars. The court ruled that the evidence was not cause for a new trial, as it tended simply to impeach the state’s witness and did not go to the merits of the case. The defendant excepted to the refusal to set aside the verdict and order a new trial, and to the ruling on the motion.</p>

Assumpsit, for labor and. materials. Facts found, and case transferred from the March term, 1904, of the superior court, by Stone, J. The plaintiff contracted with the defendant to put into a tenement house owned by the latter a heating apparatus, consisting of a boiler, radiators, piping, and other appliances and fixtures.

Trespass quare clausum. Trial by the court. Transferred from the June term, 1904, of the superior court by Stone, J. About May 20, 1908, John W. Sanborn and the plaintiff were the owners in common of a lumber lot. On that date Sanborn sold the wood and timber thereon to the defendants Kennett and Weeks for $350 and received that sum from them. The plaintiff know of the sale at the time it was made, but remained silent.

Indictment, under section 32, chapter 165, Public Statutes, alleging, in substance, that the defendant “ on the twenty-seventh day of August, in the year of our Lord one thousand nine hundred and three, at Wolfeborough, in the county of Carroll aforesaid, with force and arms, being then and there an officer, that is to say, the assistant cashier of the Wolfeborough Loan and Banking Company, a loan and banking company and corporation by law duly established and having its…

<p>In an indictment against a bank official for making a false entry in a book of the institution, an allegation that a depositor did not withdraw a specified sum is a sufficient averment that the money was not paid to him in person or upon his order.</p> <p>Indictment, under section 32, chapter 165, Public Statutes, for making a false entry in the books of the Wolfeborough Loan and Banking Company, with intent to deceive the bank commissioners. The defendant demurred to the indictment because it-does not allege that the entry was false, nor that he had knowledge of its falsity, and because, for aught that appears, the withdrawal to which the entry purports to relate was by the order or authority of the depositor, or properly charged to his account. The demurrer was overruled by Stone, J., at the June term, 1904, of the superior court, and the defendant excepted.</p>

<p>A cut resulting from the construction of a highway at a lower level than the adjacent land is not a “dangerous embankment,” within the meaning of section 1, chapter 59, Laws 1893.</p> <p>A dangerous accumulation of snow in a highway cut is not a defect which renders a town liable to a traveler injured thereby.</p> <p>A petition for leave to litigate a claim for highway injury is properly dismissed when it is apparent from the opening statement of counsel that the plaintiff has no cause of action.</p>

Case, for negligence. The plaintiff offered to prove that the decedent was employed by the street and park commissioners of the city of Manchester, through their superintendent, to drive a. horse hitched to a cart used in removing dirt, rubbish, and ashes from the streets of the city and from receptacles placed on or near the streets by abutters; and that while so employed, he was run over and killed by reason of the unsafe character of the horse.

Bill in Equity, for the cancellation of a deed. Trial before Pike, J., at the May term, 1904, of the superior court, and decree for the plaintiff. The defendants reside in Massachusetts, and the plaintiff in this state. Prior to August 24, 1899, the plaintiff had talked with Packard about trading a farm in Hillsborough for Massachusetts real estate.

Bill in Equity, by the administrator de bonis non with the will annexed of the estate of John McLaughlin, for directions as to the execution of his will. Facts found, and case transferred from the May term, 1904, of the superior court, by Wallace, C. J. The testator died June 19, 1884, leaving a will dated May 7, 1881, the first clause of which directed the payment of his debts and funeral charges and the erection of gravestones.

<p>A demurrer to a bill in equity admits the truth of all material facts stated in the bill which are well pleaded, but not of inferences or conclusions of law which the plaintiff incorporates therein.</p> <p>A lessee of real estate who is wrongfully dispossessed may ordinarily obtain redress by an appropriate proceeding at law, and cannot employ the equitable remedy of injunction unless it clearly appears that otherwise he must suffer irreparable injury, for which an action at law will not afford adequate relief.</p> <p>An allegation of irreparable injury does not preclude the court from examining the facts set forth in a bill in equity, for the purpose of determining the extent and character of the threatened mischief.</p> <p>An evicted tenant cannot invoke the aid of equity for the purpose of regaining possession, on the ground that a multiplicity of suits will thereby be avoided, if no reason appears why the rights of the parties cannot be finally adjudicated in a single suit at law.</p> <p>The financial irresponsibility of one of the parties defendant does not justify a resort to equity for the adjudication of a right properly determinable in a suit at law.</p>

Case, for personal injuries. Trial by jury and verdict for the plaintiff. Transferred from the September term,. 1904, of the superior court by Stone, J. August 28, 1903, there was a collision between two of the defendants’ cars, upon one of which the plaintiff was riding, in consequence of which she claimed to have sustained physical injuries. Whether she was injured by the collision was the issue tried.

C~sE, for negligently running against and killing the plaintiff's horse. Trial by jury. The defendants' motions, made at the close of the plaintiff's evidence, for orders directing a nonsuit and a verdict in their favor, were denied subject to exception.

Case, for negligence. Trial by jury and verdict for tbe plaintiff.

Bill in Equity, for the construction of the will of G-ustavus Walter, and Petition, for the appointment of a trustee thereunder.

Case, for damages to the plaintiff’s land. Trial by jury and verdict for the defendant. Transferred from the September term, 1904, of the superior court by Chamberlin, J. The plaintiff’s evidence tended to prove that rain falling on the defendant’s premises is collected by the roof of his block, flows therefrom over and upon the plaintiff’s land, and undermines the foundation of the latter’s building.

<p>One who negotiates and accepts a policy of insurance is presumed, in the absence of fraud and imposition, to have knowledge of the terms, conditions, and limitations therein contained.</p> <p>If a policy of insurance is negotiated and accepted by an agent of the insured, the latter is chargeable with the agent’s knowledge as to the terms of the contract.</p> <p>Where an accident policy provides that recovery thereunder shall be barred unless notice of claim be given within ten days of an injury, the insured cannot maintain an action for an injury of which no notice was given for nearly four months, when it appears that his failure to comply with the condition was due solely to his ignorance of the existence of the policy.</p>

Bill in Equity, for an injunction. Transferred from tbe September term, 1904, of tbe superior court by Pike, J. Under an article in tbe warrant for a school meeting held in Marcb, 1904, “ to see how much money the district will raise to establish a lighting plant to light Dow Academy,” tbe district appropriated a sum of money for that purpose, tbe expenditure of which tbe plaintiffs, who are taxpayers in the district, seek to prevent.

Assumpsit, for breach of contract. Writ dated April 22,1901. Trial by jury and verdict for tlie plaintiff. Transferred from tbe November term, 1904, of the superior court by Pike, J. In 1894, tbe plaintiff was appointed a police officer for the city of Manchester by tbe police commissioners, under tbe provisions of chapter 202, Laws 1893.

<p>An exception to the denial of a motion for a continuance on account of the illness of counsel who have been relied on to conduct a trial presents no question of law for determination by the supreme court.</p> <p>Where a motion for continuance on account of the illness of counsel has been heard and denied, a subsequent application of a similar nature may properly be disposod of on the ground that the question presented is res adjudincda, if no change in the situation has developed in the meantime.</p> <p>The presentation of facts which aro sufficient in law to disqualify a presiding justice does not entitle the objecting party to a continuance, but to a trial before some member of the court who is qualified to sit in the cause.</p> <p>The belief of a litigant as to his inability to secure a fair trial before a judge is not material upon the question of the competency of the latter to act in the cause.</p> <p>A statement by a presiding justice to counsel, to the effect that the latter must expect to be hold to an observance of the technicalities insisted upon by them in the trial of causes, does not indicate such prejudice or hostility as to disqualify the judge from sitting at the trial of a similar action subsequently conducted by the same attorneys.</p> <p>The right of a litigant to object to a judge on the ground of prejudice is waived by the submission to him of successive motions for a continuance of the cause, with full knowledge of the facts upon which the claim of disqualification is based.</p> <p>A judgment by default may be entered against a defendant who deliberately and intentionally refuses to comply with a special rule of court assigning his cause for trial.</p>

Case, for negligently running upon tbe plaintiff’s intestate, Robert Yeaton, at a grade crossing in Portsmouth. Trial by jury and verdict for tbe plaintiff. Transferred from tbe October term, 1904, of tbe superior court by Peaslee, J. Tbe evidence tended to show that Yeaton drove toward tbe crossing without exercising care to ascertain whether a train was approaching until be was within thirty feet of the track.

Assumpsit, upon a promissory note. Writ dated July 25, 1904. Transferred from the January term, 1905, of the superior court by Wallace, C. J., upon an agreed statement of facts.

Prorate Appeal, from a decree allowing tbe defendant’s account as guardian of tbe plaintiff. Trial by the court. Transferred from tbe February term, 1904, of tbe superior court by Chamberlin, J. Nathaniel Stevens died in 1887, and was survived by a widow and tbe plaintiff, bis only child and heir, then a minor. The defendant was appointed guardian of tbe plaintiff, April 13, 1888.

<p>The presumption AM services rendered by a child to a parent were intended to be gratuitous arises from the fact that the parties were members of the same immediate household and not from mere propinquity of kindred.</p> <p>A son who renders valuable services to Ms mother is entitled to recover therefor on an implied assumpsit when it appears that he was the head of a household wholly distinct from that of the parent.</p>

Bill in Equity, to determine the orders necessary to secure the respective rights of the parties in the reservoir formed by the dam at the outlet of Crooked pond, according to the decisions in Horne v. Hutchins, 71 N. H. 117, and 72 N. H. 211.

Case, for negligently running upon the plaintiff’s intestate at Cherry Mountain station, August 7, 1902. Transferred from the April term, 1904, of the superior court by Peaslee, J. The plain-ti if’s evidence tended to prove the following facts: The railroad tracks at Cherry Mountain run east and west, the main line being south of the station. West of the station, the Jefferson Hill branch leaves the main line and runs north of the station.

Bill in Equity, praying that the administrator de honis non of the estate of Mary P. Sibley be directed to distribute the assets remaining in his hands upon a final settlement of his account, hr conformity with certain agreements entered into by the heirs-at-law and the surviving husband of ■ the deceased.

<p>Case, for negligently failing to provide the plaintiff with a reasonably safe place in which to work. At the close of the plaintiff’s evidence a nonsuit was ordered, subject to his exception. Transferred from the September term, 1904, of the superior court by Pike, J.</p> <p>The plaintiff was head brakeman on a freight train running from Nashua to Elmwood, through Wilton. He had been a railroad employee about twenty years, and had worked on this train nearly a year. November 5, 1902, his train left Nashua about ten o'clock in the forenoon and reached Wilton about one o’clock in the afternoon. As the train entered the Wilton yard, the plaintiff was riding upon the top of the forward car, which was to be set off at that station upon the wall track, so-called, which leads from a side track east of the main line. When the train stopped at the freight station, another brakeman uncoupled the forward car from the train, while the plaintiff remained on top of the car. The engine took the car ahead over the switch, the switch was set and tire car disconnected from the engine by another brakeman, and the plaintiff rode to the wall track. The engine was then run back upon the main line to the train.</p> <p>When the plaintiff had ridden his car to its proper position on the wall track, he set the brake, got down from the car, and started toward the train to couple the engine, as his duty required. Ho crossed the side track and passed between it and the main line. At this moment the engine was backing down, and in order to reach the head of the train in season to make the hitch the plaintiff was obliged to hurry. He reached the head of the train just as the engine was backing on. The couplers on the engine and head car were dissimilar, and especial care was required in making the hitch. As he started around the end of the car to make the coupling, his right foot plunged into an excavation in the roadbed, causing him to pitch forward; and as he fell, his hand was crushed between the draw-bars of the engine and the car.</p> <p>At the point where the accident occurred the road-bed was dug up for putting in or taking out ties, the dirt being piled near the tracks. Before attempting to make the hitch, the plaintiff did not notice that repairs had been made upon the road-bed in that vicinity. He first saw that the road-bed had been dug up for two or three car-lengths immediately after his injury. He knew that railroad companies were obliged to repair tracks in their yards, and that they did so by taking out and putting in ties. He could have seen the excavation in the road-bed had he looked, but his mind was intent upon making the hitch, and he was forced to hurry in doing that work. He had plenty of time to make the hitch in safety if the ground had been level. On the west side of the main line was a track known as the Greenfield track; and when the plaintiff’s'train reached Wilton on the day of the accident, he saw section men on that track, at a point opposite the . passenger station and about 200 feet north of the freight station. He thought they were working at that point, but could not state positively.</p> <p>All the evidence introduced by the plaintiff tended to show that repairs were being made in the railroad yard, above, below, and at the point of the accident; but there was a conflict of testimony as to whether the section men were at work near the place of the accident at the time it occurred, or were engaged about 200 feet north of that point, and whether the dirt that was excavated was piled between the tracks or outside of them. There was no evidence to show how long repairs had been going on, or when the hole into which the plaintiff stepped was made, or whether the defendants had established rules which required section men to warn trainmen of the condition of tracks upon which repairs were being made.</p>

<p>Common carriers cannot exempt themselves by express contract from liability for loss or damage attributable to their own negligence.</p> <p>A consignor is entitled to recover of common carriers for merchandise destroyed by fire which started without their fault, but which they negligently failed to extinguish.</p> <p>In an action against common carriers to recover for merchandise destroyed by fire, evidence of inadequate public protection is competent upon the question of the defendants’ negligence in failing to employ watchmen and maintain fire apparatus.</p>

<p>In an action of negligence against an employer, certain evidence deemed sufficient to warrant a finding that the injuries complained of resulted from the defendant’s failure to give proper instructions concerning a danger1 of which the servant had neither actual nor constructive knowledge, and the risk of which he did not assume.</p> <p>The circumstances under which an accident happened, considered in connection with the ordinary habits of mankind and the natural instinct of self-preservation, may warrant a finding of due care on the part of an injured person, in the absence of direct evidence disclosing his conduct.</p> <p>A master’s assumption of knowledge on the part of a servant does not excuse a failure to give proper warning concerning the dangers of the employment.</p> <p>The fact that a freight brakeman was injured by collision with an overhead bridge while making his first trip, warrants the inference that he was ignorant of the danger to which he was exposed.</p>

Bill in Equity, praying that the passage of a certain joint resolution by the city councils of Portsmouth be declared, null and void, that a contract between the city and the Barber Asphalt Paving Company be cancelled, and that any action under the contract be enjoined. The plaintiffs are taxpayers in Portsmouth, and the defendants are the city, the Barber Asphalt Paving Company, and the members of a committee of the city councils.

Petitions, for abatements of a portion of the taxes assessed upon the plaintiffs’ real estate in the years 1893 to 1896 inclusive. Facts found and transferred by tbe former supreme court. The real estate was appraised for taxation in 1893 at $60,000, in 1894 at $68,600, and in 1895 and 1896 at $67,100.

Assumpsit, on a life insurance policy. Plea in confession and avoidance, admitting the policy, but alleging that it was subject to a condition of forfeiture for non-payment of premium provided notice was given in accordance with the New York statute, that notice of a semi-annual premium due February 25, 1894, was given as required by said statute by mailing a notice at New York City on January 20, 1894, and a like notice at Albany, New York, on the same day, and that the…

Bill in Equity, for an injunction. Facts found, and case transferred from the January term, 1905, of the superior court, by Chamberlin, J., without a ruling.

Trover, by a sheriff, against receiptors for attached property. Trial before Peaslee, J., at the November term, 1904, of the superior court, and verdict for the plaintiff, to which the defendants excepted. In July, 1903, one Daniels fraudulently obtained a pair of horses from the defendant Abbott, giving therefor $25 in cash, a horse obtained from a third person through fraud, and a bogus check.

Trespass de bonis asportatis. Plea, the general issue, with a brief statement alleging that the defendant cut and removed the timber in question by virtue of a written contract with the plaintiffs. Trial before Pike, J., at the November term, 1904, of the superior court, and verdict for the plaintiffs.

Petition, for a writ of habeas corpus, filed September 21, 1905.

Petition, praying for the appointment of trustees to fill vacancies caused by the resignation of four of the seven members previously appointed upon the board of trustees created by the will of Hiram Barker, which is printed at length in Hdgerly v. Barker, 66 N. H. 434. Charles B. Barker, one of the defendants and a member of the board of trustees, filed an answer admitting the existence of the vacancies in the board, but denying that there was any occasion for filling them.

Bill in Equity, praying for the cancellation of certain attachments made by the defendants upon personal property mortgaged by the plaintiffs Emma E. and John W. Hobart to the plaintiff Tisdale. Trial at the September term, 1904, of the superior court before Stone, J., who dismissed the bill subject to the plaintiffs’ ■exception.

<p>Steps which furnish a means of descent from a sidewalk to the adjacent roadway and are not provided with a railing for the support of pedestrians do not constitute a “ dangerous embankment and defective railing” within the meaning of section 1, chapter 59, Laws 1893.</p> <p>Case, for injuries from a defective highway. Trial by jury. A nonsuit was ordered at the close of the plaintiff’s evidence, subject to exception. Transferred by Wallace, C. J., from tbe October term, 1904, of tbe superior court.</p> <p>Tbe evidence tended to prove the following facts: There are two highways in the village of Pittsfield, one known as Main street, running nearly in an easterly and westerly direction, and the other, known as Chestnut street, running from Main street in a northerly direction, forming a right angle with it at the starting point. A portion of these highways, adjoining the lot in the easterly corner, is a sidewalk for the use of pedestrians. The surface of the sidewalk at the corner of the streets is twenty-three inches higher than the surface of the walk across Chestnut street. There are two stone steps leading from the surface of the sidewalk to that of the cross-walk, the upper one being five feet eleven inches long and twenty-five inches wide, and the lower one six feet eight inches long and fourteen and a half inches wide. There is an iron rail running from a point in the southerly line of the sidewalk on Main street, about six feet easterly of the steps, to a post set in the southerly end of the lower step. There is no rail at the other end of the steps. In the evening of January 6, 1908, the steps were covered with snow, and there was a hard, trodden path of snow and ice near their center line. The surface of the path on each step sloped upward from its front edge to the step above, and was slippery. About a quarter past seven o’clock that evening, when it was quite dark, the plaintiff walked on the sidewalk in Chestnut street in a southerly direction to the corner of Main street, and turned westerly into the path down the steps. As she stepped upon the lower step she slipped upon its hard, slanting, and slippery surface, fell, slid down the steps to the cross-walk, and was injured. She did not go off the northerly end of the steps. She did not take hold of the rail at the south end; there were persons standing against it near the top of the steps.</p>

Bill in Equity, for the construction of the will of John H. Pearson, and Petition, for a writ of mandamus to compel the defendant to consider and pass upon a petition filed by the plaintiffs in the probate court for Merrimack county. Transferred without ruling from the April term, 1905, of the superior court by Chamberlin, J. The will is the same as that before the court in Haynes v. Carr, 70 N. H. 463, and Carr v. St.PauVs Parish, 71 N. H. 231.

Case, for negligently causing the death of the plaintiff’s intestate, a passenger upon the defendants’ railroad. Upon a plea of guilty, the damages were assessed by a jury., Transferred from the January term, 1905, of the superior court by Chamberlin, J. The deceased was the wife of the plaintiff.

<p>'The fact that a guardian made use of the money of his ward for his own purposes very soon after he withdrew it from a savings' bank, and in making use of it pursued the course of his habit in the use of private funds, — depositing the money in the bank account of a corporation of which he was treasurer and immediately checking it out for his private purposes, — is competent evidence upon the question of his intention at the time of the withdrawal of the money from the savings bank.</p> <p>If trust funds are deposited in the bank account of a corporation by the treasurer thereof and subsequently used for his private purposes, the company is not liable to the beneficial owner by reason of a mere temporary possession from which no substantial benefit was derived.</p> <p>“Where a corporate officer, who customarily utilizes the company’s bank account for his private business, causes to be deposited therein drafts and certificates of deposit payable to and indorsed by himself as guardian, and subsequently misappropriates the money in pursuance of a preconceived scheme of fraud, the corporation is not liable therefor to the beneficial owner, on the ground that it received the funds with notice of the trust and aided in their wrongful diversion.</p> <p>A principal is not chargeable with knowledge of his agent when the latter is engaged in the commission of an independent, fraudulent act upon his own account, to which the facts sought to be imputed relate.</p>

Appeal, from a probate decree dismissing the petition of the appellant for an extension of the time for filing a waiver of the provisions in his favor of the will of his wife, Elizabeth H. Jaques. Mrs. Jaques died April 2, 1895, and the petition was filed in the probate court December 28, 1897. Facts found, and case transferred from the April term, 1904, of the superior court, by Stone, J.

Case, for malicious prosecution. Trial by jury and verdict for the plaintiff. Transferred from the April term, 1905, of the superior court by Stone, J. The malicious prosecution alleged was an indictment found by the grand jury against the plaintiff for the use of milk cans belonging to the defendants and duly registered by them, in violation of the provisions of chapter 120, Laws 1903. A jury was impaneled to try the indictment.

Case, for personal injuries alleged to have been caused by the defendants’ negligence. Trial by jury and verdict for the plaintiff.

Assumpsit, for the price of a cash register. Trial by jury and verdict for the plaintiffs. Transferred from the February term, 1905, of the superior court by Peaslee, J. ' The plaintiffs introduced evidence of a written contract of sale, and rested. The defendant introduced evidence tending to show that he had certain talks with the plaintiffs’ agent in regard to the machine before he opened his place of business, as bearing upon the question of fraud and rescission.

MOTiON, by the plaintiff, for a rehearing of the case as reported ante, p. 222. The plaintiff procured an amendment of the case, by which it appears that the facts were agreed to by the parties without a hearing upon the merits.

Bill in Equity, praying for a cancellation of a written contract by which it is alleged that the defendant obtained a large amount of property through fraud and imposition practiced by her upon the plaintiff’s intestate, who was of unsound mind by reason of age and infirmity. The bill also asks for an accounting. The defendant filed an answer denying the allegation of fraud and imposition, and moved that issues be framed for a trial by jury.

<p>Whore the evidence hi ail action for personal injuries resulting from a collision between a team and an electric car shows that the plaintiff was knowingly and without necessity riding with a drunken and incompetent driver, who at the time of the accident was guilty of negligence which contributed thereto and ought reasonably to have been anticipated of one in his condition, an instruction to the jury, to the effect that the plaintiff’s negligence in riding with such a driver and the latter’s conduct were entirely immaterial said not to be considered upon the question of liability, is erroneous and furnishes cause for setting aside a verdict in the plaintiff’s favor.</p>

Replevin, for a piano. Trial before Peaslee, J., at the October term, 1904, of the superior court, and verdict for the defendant. The piano was sold conditionally by the plaintiff to one Brown, by a contract made in this state and not recorded. The defendant justified under an attachment by creditors of the vendee.

Writ of Entev, for the possession of certain premises in Hanover. William H. Poole disclaimed, and Annie L. Poole answered by filing a bill in equity to enforce specific performance of an oral agreement to convey land. The bill alleges that the plaintiffs’ testator, William II.

Probate Appeal. Transferred from the April term, 1905, of the superior court by Stone, J. Upon the petition of the plaintiff for the partition of certain real estate, the probate court appointed a committee to make the partition, the members of which the court understood at the time had been agreed to by the parties.

Appeal, from a probate decree allowing the will of Mary F. Calef. Trial by jury. The issues were undue influence and insanity. Upon the first issue a verdict was ordered for the plaintiff, subject to exception. Upon the second issue the jury disagreed. Transferred from the November term, 1903, of the superior court by Peaslee, J. The parties are nephews and lieirs-at-law of the testatrix.

Assumpsit, to recover the amount of a promissory note. Writ dated November 25,1904. Plea, the general issue.

Trespass, (piare clausum. Iffea, the general issue. Trial by jury and verdict for the defendant.

Bill in Equity, for an interpretation of Calvin Merrill’s will. Facts agreed, and ease transferred from the January term, 1905, of the superior court by Pike, J., without a ruling.

Case, for slander. Trial by the court and verdict for tbe plaintiff for $50. Transferred from the January term, 1905, of the superior court by Chamberlin, J. Tbe original writ contained two counts. Tbe second count (see 72 N. II. 400) was struck out by amendment.

Assumpsit, upon a policy of indemnity against sickness. Trial by jury. The defendants’ motion for a nonsuit was granted, and the plaintiff excepted. Transferred from the May term, 1905, of the superior court by Peaslee, J. No proof of loss was given to the defendants as required in the policy, but the plaintiff claimed the defendants waived the right to insist upon formal proof.

<p>Biel in Equity, to set aside, cancel, and declare null and void the certificate or license issued to the defendant to practipe dentistry in New Hampshire. A decree was entered for the plaintiffs, and the defendant excepted. Transferred from the May term, 1905, of the superior court by Peaslee, J., upon an agreed statement of facts.</p> <p>During the year 1902, Frederick H. Brown, George A. Bowers, and William É. Blaekstone, residing and having offices, respectively, at Lebanon, Nashua, and Manchester, were the duly constituted members of the state board of registration in dentistry, Blaekstone being clerk of the board. In the latter part of February, 1902, Grenier wrote Blaekstone from Brockton, Massachusetts, where he was employed in dentistry, inquiring whether the board would permit him to take examinations in French, and if so when. Blaekstone replied that the board would allow him to take such an examination at any time, upon one weekjb notice to allow the board an opportunity to prepare questions. Four or five weeks afterward Grenier notified Blackstone that he would come to Manchester to he examined one week later, and at the time appointed came to Blackstone’s office for that purpose. He paid a fee of $10, and at this time inquired of Blackstone where the other examiners were. Blackstone said that he superintended all examinations; that examination papers were sent to the other members to be reviewed and were afterward returned to him with their findings; and that Grenier would bo advised later as to the result, and a certificate would be issued to him if he passed a successful examination. Grenier then used the English language with difficulty and was unable to take the examination in that tongue, but was duly examined by Blackstone through an interpreter. The examination consumed several days. In addition to the written examination as to his knowledge of the theory of dentistry, Grenier gave a demonstration of his ability to do practical and operative work, according to the requirement of the board. About four weeks after the examination he wrote Blackstone from Brockton, inquiring as to the result, and was informed by mail that he had passed a satisfactory examination. No certificate was sent to him. A few days later he came to Manchester to get his certificate, or to learn why one had not been sent to him. Blackstone then told him that the answers in the examination papers being in French, there was an additional expense of $50 for the review of the same by the examiners. Grenier thereupon paid $50 to Blackstone and received the certificate in question, signed by all the members of the board.</p> <p>. According to the practice and understanding of the board, the written examination papers were submitted to and passed upon by each member, and applicants were required to present themselves at the office of each member. Brown and Bowers, for the convenience of Blackstone, had signed diplomas or certificates in blank, for issuance to such applicants as passed the examinations. Grenier’s examination papers were never submitted to Brown and Bowers for approval, nor did he ever present himself at the office of either of them for examination. The examination was taken by Grenier in good faith. He is a graduate of Laval University of Montreal, at which institution he took the course in dentistry, and he also served three years as an apprentice to a well known dentist in Montreal. Upon receipt of his diploma or certificate, he at once fitted up dental parlors in Manchester, where he has since-engaged in the practice of his profession.</p>

<p>A highway agent engaged in the repair of highways under the direction of the selectmen is a public officer for whose negligent performance of duty the town is not liable.</p> <p>A town is not liable for an injury to private property resulting from its failure to abato a nuisance outside the highway limits, which it might rightfully have abated for the protection of the highway or other public property.</p>

Petition, for a writ of mandamus, brought by the plaintiffs against Henry M. Putney, Arthur G. Whittemore, and George E. Bales, railroad commissioners, to require them to assess damages occasioned by an alleged taking by the plaintiffs of certain land, water-power, and appurtenances, belonging to the defendant Roberts.

Debt, on a bond. In August, 1903, the defendant Corron applied to tbe state board of license commissioners for a license of the first class, to be exercised in Newport. The license was granted upon the filing of the bond in suit, executed by Corron as principal and the United States Fidelity and Guaranty Company as surety. During the term of the license complaint was made to the license commissioners that Corron had violated the law by selling liquor to an intoxicated person.

Petition, of Henry A. Lamphire and Fred W. Towle, for their ■discharge as sureties upon a recognizance. Trial before Stone, J., at the September term, 1905, of the superior court. The petitioners recognized as sureties for the appearance at the ¡superior court of Daniel McIntyre, who was duly bound over for ■such appearance at the May term, 1904, by a justice of the peace, upon a complaint charging him with breaking and entering a ■dwelling-house and stealing therefrom.

<p>Bill in Equity, praying that the Electrical Works be ordered to issue to the plaintiffs a certificate of stock. Transferred from the November term, 1904, of the superior court by Pike, J. The suit was begun as an action at law, but was afterward amended by the filing of this bill in its stead. Some of the stockholders of the Electrical Works were also made defendants.</p> <p>The plaintiff corporation is located and does business in Massachusetts. The Electrical Works was incorporated under the laws of South Carolina, but has its principal place of business in this state. About the time of the formation of the defendant corporation, a regularly signed certificate for 350 shares of its stock was issued to one Bibber, for which he paid nothing. In June, 1899, Bibber pledged this certificate to the plaintiffs as collateral security for a loan, and they held it as such security until February 25, 1901, when, by an arrangement between B'ibber and the plaintiffs, he formally transferred the certificate to them in part payment of the loan. In these transactions the plaintiffs acted in good faith, having no knowledge of any defect or infirmity in the issuance of the stock.</p> <p>May 1, 1902, the plaintiffs notified the defendant corporation that they owned the Bibber certificate, and asked for information in regard to the company; and on July 13, 1903, they requested the Electrical Works to transfer the certificate to their name, but the request was not granted. The certificate stated that the shares were fully paid and non-assessable, and that they were transferable only upon the books of the corporation. By the code of South Carolina, it is provided that “no stock shall be issued by any corporation until fully paid; . . . and no transfers of stock shall be valid except as between the parties thereto, until the same shall have been regularly entered upon the books of the corporation.” The business of the Electrical Works has not been thoroughly developed, and its future is problematical. The plaintiffs believe that the stock will ultimately be much more valuable than it now is.</p> <p>January 3, 1903, certain stockholders of the defendant corporation began proceedings in the supreme court of New York against Bibber, the Westminster National Bank, and the Electrical Works, and obtained an order restraining Bibber from transferring his certificate of stock and restraining the Electrical Works from making any transfers thereof on the books of the corporation. The plaintiff bank was not served with process in that suit and did not appear, although it received information of the pendency thereof.</p> <p>The defendants offered testimony of what one Greenwood, a director and vice-president of the bank, had said in regard to the way the bank received the stock. The evidence was excluded upon the ground that it did not appear that Greenwood had authority to make admissions against the bank, and the defendants excepted.</p> <p>The court ordered the Electrical Works, upon presentment of the Bibber certificate properly indorsed, to issue to the plaintiffs a new certificate for the same number of shares, unless the New York judgment is a legal bar to such an order. To this order the defendants excepted.</p>

<p>The objection that a bill of discovery in aid of an action of libel does not sufficiently set out the defamatory words is one that maybe obviated by amendment.</p> <p>A bill of discovery in aid of an action of libel, brought for the purpose of compelling the defendant publisher to produce the original writing and to divulge the names of the persons who instigated its publication, is demurrable on the ground that the matter sought to be disclosed will tend to convict the defendant of a crime.</p> <p>Bill in Equity, praying for discovery in aid of an action at law. The defendant’s demurrer was sustained by Wallace, C. J., at the May term, 1905, of the superior court, subject to the plaintiff’s exception.</p>

Case, for fiowage. Trial by jury and verdict for the plaintiff.

Probate Appeal. At tbe April term, 1905, of tbe superior court, tbe appeal was dismissed by Stone, J., on the ground that tbe reasons assigned therefor were not sufficient, and the appellant filed a bill of exceptions. January 24, 1901, tbe appellant and William J. Mendum, one of the heirs-at-law of Charles H. Mendum, were appointed administrators of the latter’s estate, giving a joint and several bond.

Bill in Equity, to determine the claims of the parties to the proceeds of certain property sold by agreement. Transferred from the April term, 1905, of the .superior court by Stone, J., without a ruling.

Appeal, from a decree of the judge of probate of Belknap county relating to the probate of Albert K. Tilton’s will and the settlement of his estate. Facts agreed. The testator was born in Tilton in 1841, and resided there until after the close of the Civil War, when lie removed to Denver, Colorado, where Ms legal residence was thenceforth until March, 1888. He became ill in the early part of 1888, and in March carne to the home oE Ms brother, Janies II.

Bill in Equity, to restrain 'the execution of a contract to light the streets of the Meredith Village Fire District, made between the district and the Meredith Electric Light Company. At the March term, 1905, of the superior court, the defendants’ demurrer was sustained by Stone, J., subject to the plaintiffs’ exception. The allegations of the bill are in substance as follows: The plaintiffs are taxpayers in the district.

Assumpsit, for the breach of a written contract. Trial by jury and verdict for the plaintiffs for #484.80.

Trespass, for breaking and entering the plaintiff’s close and cutting and carrying away timber. Writ dated April 15, 1904. Trial at the May term, 1905, of the superior court before Peaslee, J., who found a verdict for the defendant, subject to the plaintiff’s exception. Transferred upon an agreed statement of facts.

Petition, under section 6, chapter 52, Public Statutes, to determine the location upon a bridge over the Ammonoosuc river of the boundary between the two towns. The petition was referred to the county commissioners, who found that a line through the center of the middle pier of the bridge had been recognized by both towns for more than sixty years as the boundary line.

Bill in Equity, for the reformation of the description of land conveyed from the defendants to the plaintiffs, in connection with an action at law for the recovery of a portion of the purchase price. Transferred from the September term, 1905, of the superior court by Chamberlin, J. Facts agreed. The deed purported to convey several tracts of woodland.

Case, for personal injuries. Trial by jury. Transferred from tbe March term, 1905, of the superior court by Stone, J. The evidence tended to prove the following facts: The plaintiff had worked for the defendants as a blacksmith for about eighteen months prior to his accident. His helper had been at work with him about six weeks, and the plaintiff considered him an average striker.

Bill in Equity, praying that the Casualty Company be ordered to pay to the plaintiff the amount for which it is liable under its-contract of indemnity with the Marlborough Street Railway Company, a Massachusetts corporation.

<p>A master is bound to make repairs which require special skill and are not incidental to the use of appliances furnished by him, and is liable to his servant for injuries resulting from the negligent performance of such duty by another employee to whom it was entrusted.</p> <p>Case, for negligence. Trial by jury and verdict for the plaintiff. The defendants’ motion for a nonsuit was denied, subject to exception. Transferred from the September term, 1905, of the superior court by Stone, J.</p> <p>For three years prior to his injury the plaintiff was employed by the defendants to transfer freight between their manufacturing establishment and the railroad station. In this service he was required to use a freight elevator in their mill. On the day of the accident the elevator fell while it was being loaded, because the drum carrying the suspension rope became loose upon its shaft, and the plaintiff was injured. The elevator, its equipment, and the method of operation were the same on that day as during the three years of the plaintiff’s employment, except that the flanges by which the drum was attached to the shaft, which had been broken, were replaced by others the day before. This repair was made by the servants of the defendants employed for such work. The new flanges were secured to the shaft in the same manner as the old ones, except that the holes in them were tapped out a thirty-second of an inch larger than the set-screws used; and there was evidence that the loosening of the drum upon the shaft was due to this fact. The larger tap was used because the men engaged upon the repairs did not have one of the proper size. There was evidence that, it was the custom of the defendants’ servants, if they lacked suitable tools, to borrow such as were needed from a neighboring concern, and that this fact was known to the defendants’ superintendent. The plaintiff was without fault.</p>

Assumpsit. Transferred from the September term, 1904, of the superior court by Stone, J. September 9, 1904, the plaintiff, an attorney-at-law, instituted three suits against the defendants, one in favor of Gibbs, one in favor of Hayes, and the other in favor of himself.

Wbit oe Entby. Trial by the court and verdict for the defendants. Transferred from the November term, 1905, of the superior court by Peaslee, J., upon the plaintiff’s exception to the verdict. In 1894, Emma A. W. McLeod executed a deed of trust of all her property, to be held for Nellie Boynton, payable to her at the rate of $120 a year and the balance upon the decease of the grantor, and Mrs. Boynton gave a bond to support Mrs. McLeod during the latter’s life.

<p>The fact that the defendant in an action for negligence alleges that the injuries complained of proximately resulted from the want of care of a third person does not warrant the joinder of the latter as a party defendant, against the objection of the plaintiff.</p> <p>Case, for negligence resulting in a collision between a carriage in which the plaintiff was riding and the defendants’ car. Transferred from the September term, 1905, of the superior court by Beaslee, J.</p> <p>The defendants moved that one Gadbois be ordered to appear in court and show cause why he should not be joined as a party defendant in the action, and assigned the following reasons: “ (1) Because said Gadbois is, and was on the day the plaintiff was injured, ... a common carrier, and as such was engaged in carrying the plaintiff in his hack, . . . and while so engaged was attempting to drive his said hack, with the plaintiff therein, across the tracks of the said defendants in Bridge street, at a time when it was dangerous and negligent so to do, as he well knew. (2) Because said Gadbois could, and the Manchester Street Railway could not, have averted the collision between said Gadbois’ hack and the car of the Manchester Street Railway, whereby the plaintiff was injured. (8) Because if there was any negligence at the time of said collision which would allow the plaintiff to recover, it was not wholly, if in any degree, that of said Manchester Street Railway.” The plaintiff objected to the granting of the motion.</p> <p>It was ordered that a citation issue to Gadbois to appear and take up the defence of the suit against the street railway, if the defendants so elect. The motion that Gadbois be joined as party defendant was denied without a hearing of the alleged facts, upon the ground that the court had no power to make such order upon those facts and against the objection of the plaintiff, and the defendants excepted.</p>

Case, for negligently injuring the plaintiff’s wife, whereby, it is alleged in the declaration, he “ lost the comfort, assistance, society, and benefit of said Elmina Booth in his domestic affairs, which he might and otherwise would have had, and whereby also the plaintiff was obliged to expend, and did expend, large sums of money for medicine, medical services, and attendance in his endeavor to heal and cure the said Elmina Booth of her said injuries.” The defendants’…

<p>A person who has been arraigned upon a criminal charge and is awaiting the action of the grand jury has no right to take depositions under section 13, chapter 225, Public Statutes.</p> <p>Petition, for the correction of alleged error in the ruling of a justice of the peace. Transferred from the September term, 1905, of the superior court by Peaslee, J.</p> <p>The defendant Naud was arraigned before the police court of the city of Manchester upon a charge of larceny, and was bound over to await the action of the grand jury at the January term, 1906, of the superior court. His counsel gave the state notice of the taking of depositions under section 13, chapter 225, Public Statutes. At the return of the caption it appeared that the defendant proposed to take the deposition of the principal witness for the state, and the solicitor objected. The justice ruled that the deposition be taken, and continued the caption pending a decision upon this petition. It was ruled in the superior court that the defendant had no right under the statute to take the deposition, and he excepted.</p>

<p>Where the words of an alleged libel are capable of more than one meaning, it is the office of the innendo to point out the sense in which it is claimed they were used; and if as matter of law they are susceptible of the construction so placed upon them, the question whether they were used in the sense charged is one of fact for the jury.</p> <p>A declaration setting forth a newspaper article which charges the plaintiff with fraud and dishonesty in his business transactions is not demurrable because no special damage is alleged.</p> <p>Case, for libel. The declaration alleges, in substance, that the plaintiff is an honest man and a good citizen, and that the defendant, well knowing these facts and intending to injure the plaintiff, maliciously published in his newspaper the following false and libelous words concerning bim: “Another would-be statesman [meaning the plaintiff], who a few years ago owed the farmers of this and adjoining towns two or three thousand dollars for cattle and sheep, produce, and borrowed money, with the aid of his [meaning the plaintiff’s] brother-orator statesman got himself [meaning the plaintiff] into a position where the law could not reach him [meaning the plaintiff, and meaning that he was dishonest and acted fraudulently in his business transactions immediately prior to his adjudication of bankruptcy], and with 1100,000 in the family consisting of the father and two sons, of which he [meaning the plaintiff] was one, took advantage of the bankruptcy law, and these farmers lost the proceeds of their honest labor. [Meaning that the plaintiff was amply able to pay all claims and ■demands existing against him at the time of filing his aforesaid voluntary petition in bankruptcy, yet he dishonestly and fraudulently obtained his discharge thereunder.] It seems to me that by comparison [meaning by comparison with the plaintiff] the thief who puts his hand in your pocket and steals your money is -a gentleman. [Meaning thereby that the plaintiff is worse than a thief, that he has committed the crime of robbery, and that the methods employed by him were more contemptible than those of a pickpocket.] Now he [meaning the plaintiff] gets up in town ¡and cries, ‘ Brother farmers, we are being swindled and abused. Follow me [meaning the plaintiff] ; I ’ll [meaning the plaintiff] be your leader. You’ll be all right.’ Farmers, how did you ■come out with this man [meaning the plaintiff] before ? [Meaning and intimating that the plaintiff had in his transactions with the farmers of his own and adjoining towns swindled and defrauded them, referring to his bankruptcy proceedings aforesaid.] Do you want any more of him? [Meaning the plaintiff, and that any relation with him would be to their detriment.]”</p> <p>The defendant demurred to the declaration because (1) the words of the alleged defamatory publication are pot actionable in :and of themselves, and the declaration does not allege that the plaintiff has sustained any special damages; (2) the words are capable of an innocent construction, and in such cases it cannot be shown that the defendant used them in a libelous sense, even if he alleges it by way of an inuendo. The demurrer was overruled by Stone, J., at the November term, 1905, of the superior ■court, and the defendant excepted.</p>

Bill in Equity, to determine the title to certain real estate which the plaintiffs claim to own by virtue of the will of Pepperell Frost.

Writ ok Entry. Trial by the court and verdict for the defendant. Transferred from the September term, 1905, of the superior court by Chamberlin, J. In 1872, Hale and Wentworth owned lots of land situated on Court street in Dover and separated by a small brook. In that year the city took the brook and the land on both sides of it, to provide water for the use of the fire department and land on which to store the water.

<p>Where a school district votes to contract with an academy for high school instruction and also to pay the tuition of pupils continuing to attend the high school in an adjoining town, it is liable to the parent of a pupil of the latter class for tuition paid by him subsequent to the contract authorized by the vote.</p>

<p>Appeal, from the police court of Concord. The defendant was charged in a complaint with being a dealer in, and the keeper of a shop for the purchase and sale of, old junk, etc., in Concord, September 29, 1905, without a license, and was adjudged guilty by the police court. The following facts were agreed to by the parties: Chapter 124, Public Statutes, as amended by chapter 76, Laws of 1905, was in force in Concord, and the defendant had no license thereunder. He had a place of business in Concord, and advertised as a wholesale dealer in scrap iron, old machinery, pipes, rubber, and metals. He bought old metals, rags, paper, rubber, and bottles of all kinds, in any quantity, of persons licensed by the city as junk dealers. He purchased of a tin peddler, doing business in Concord and elsewhere without a license, a large quantity of old rags. He bought old iron, rubber, and metal in large quantities outside Concord, and old iron and old paper in large quantities of manufacturers and individuals in Concord. He sold some of the old iron in Concord, and some of the articles purchased to parties in other states. There were in and around his place of business large quantities of old metals, rags, paper, rubber, and bottles, which were constantly changing by reason of purchases and sales. He employed several men in assorting and arranging the property. Upon these facts the superior court found that the defendant was guilty as charged, and he excepted. Transferred from the October term, 1905, of the superior court by Pike, J.</p>

Assumpsit, to recover a commission on the sale of an automobile. Trial by the court. At the close of the plaintiff’s evidence a nonsuit was ordered, and he excepted. Transferred from the October term, 1905, of the superior court by Chamberlin, J.

<p>Assumpsit, for breach of a written agreement. Trial by jury and verdict for the plaintiffs for one cent damages. In support of their motion to set aside the verdict and for a new trial, on the ground of alleged misconduct of jurors in making up the verdict, the plaintiffs submitted the affidavit of the sheriff who had charge of the jury during their deliberations. The defendants submitted counter-affidavits of some of the jurors. The plaintiffs then moved for leave to bring the jurors into court and examine them “in explanation or contradiction” of their affidavits. The motion was denied solely as a matter of law, and the plaintiffs excepted. The motion to set aside the verdict was also denied. Transferred from the May term, 1905, of the superior court by Pike, J.</p>

Petition, for a writ of certiorari. Writ denied. Transferred from the September term, 1905, of the superior court by Pike, J. In 1904, the ’ selectmen of the defendant town, upon petition, laid out a highway across the plaintiff’s land. The plaintiff was not present at the hearing before the selectmen. No written notice of the hearing addressed to her was served upon her, but such a notice addressed to her husband, with whom she lived upon the premises, was served upon him.

Bill in Equity, by an executor, for instructions as to certain questions arising under the will. Transferred from the October term, 1905, of the superior court by Pike, J., upon an agreed statement of facts.

<p>Case, for negligently exposing the plaintiff to a contagious disease without warning, and for negligence on the part of the defendant, Mrs. Russell, as a physician in treating the plaintiff after she had contracted the disease. The jury returned a verdict against the hospital and one in favor of Mrs. Russell. Transferred from, the April term, 1905, of the superior court by Chamberlin, J.</p> <p>The plaintiff was a pupil nurse in the hospital under a contract by which she was to be trained for a nurse and receive ten dollars a mouth. She began her service there in January, 1902, when she was nineteen years old. In December, 1908, Mrs. Russell put her in charge of a patient, whose malady the state bacteriologist, after an examination of a culture taken from her, informed Mrs. Russell was diphtheria, a contagious disease. Mrs. Russell had doubts whether it was diphtheria. If it was, it was a very peculiar and unusual form of the disease. The plaintiff was not informed by any one that it might be diphtheria, and was left in ignorance in regard to it until she developed that disease a few days after she was put in charge of the ease.</p> <p>Under the declaration, the plaintiff claimed that she was entitled to a verdict against the hospital for its negligence in not notifying her that the case might be diphtheria, and against Mrs. Russell for her personal negligence in assigning her to the case and for malpractice. At the close of the evidence both defendants moved that verdicts be directed in their favor. The motions were denied, and they excepted.</p>

Cask, for negligently causing the death of Mary Chandler, the plaintiff’s intestate, in the defendants’ railroad yard at East Concord, February 25, 1904. Trial by jury. At the close of the plaintiff’s evidence a nonsuit was ordered, subject to' exception. Transferred from the April term, 1905, of the superior court by Chamberlin, J. The tracks in the yard at East Concord run north and south, the passenger station being located east of the tracks.

Assumpsit, upon an insurance policy. Trial by the court. Transferred from the October term, 1906, of the superior court by Pike, J. The policy was of the New Hampshire standard form, was dated November 2, 1903, and purported to insure the plaintiff for five years to the amount of $1,200, as follows: On dwelling-house and L, $500; on furniture, pictures, desk, silverware, and clothing, $500; on barn No. 1, $200.

Case, for negligence in permitting a car used as a waiting place for passengers to be in a dangerous condition. Trial by jury and verdict for the plaintiff. Transferred from the September term, 1905, of the superior court by Peaslee, J. Subject to exception, a witness was permitted to testify that a, defect in a seat in the car, of which the plaintiff complained as. the cause of her injury, could have been remedied for two dollars.

<p>Bill in Equity, to compel the Samuel Hano Company and its •officers to call a meeting of their shareholders and vote an assessment to pay a debt they owe to the plaintiffs. Transferred from the January term, 1906, of the superior court by Beaslee, J.</p> <p>This is the same case reported in 72 N. H. 549. After the order was certified to the superior court, a master was appointed to call a meeting of the shareholders of the Hano Company to provide means for paying the plaintiffs’ claim by assessing their shares or otherwise. The master called a meeting for that purpose, but none of the shareholders attended. After the master .made a return to. the court of what he had done in the matter, the plaintiffs filed a motion asking the court to assess the shareholders in the Hano Company and to appoint a receiver to collect the assessment. When this motion was in order for hearing, Morris Hano, the record owner of one share, appeared and objected to an assessment of his stock by the court. The evidence did not show whether or not anything had ever been paid on his stock, but it did show that the whole amount of the capital fixed and limited by the corporation had not been paid in. The court ordered an assessment of two dollars a share and appointed a receiver to collect it, and Morris Hano excepted.</p>

Trover, upon a sheriff’s receipt for property attached. The case is reported ante, p. 347, and the facts there stated are made a part of the present case.

Assumpsit, upon a bank cheek. Plea, the general issue, with •a brief statement that the check was obtained by fraud and was without consideration. Trial by the court and verdict for the plaintiffs. Transferred from the November term, 1905, of the superior court by Chamberlin, J., upon the defendant’s exception to the denial of his motion to set aside the verdict.

Petition, for a writ of certiorari to the board of railroad commissioners. Facts found, and case transferred from the October term, 1905, of the superior court upon an alternative order, by Pike, J.

Motion, by the defendant, filed April 8, 1908, to bring forward and vacate a decree of divorce on the ground of adultery, granted at the September term, 1902. Previous to the return day of the original libel, the plaintiff agreed to pay the defendant $500, and in consideration of such agreement the defendant agreed that she would not appear to defend the divorce proceeding.

Bill in Equity, to enjoin the defendants from occupying or trespassing upon a tract of land adjoining the plaintiffs’ track in Wolfeborough. Upon hearing the bill was dismissed by Stone, J.,, at the June term, 1901, of the superior court.

Bill in Equity, to determine the gristmill right, so called, to water for power at the Pickering dam on Smith’s river in Wolfe-borough. Transferred from the June term, 1901, of the superior court by Wallace, C. J. May 2, 1855, Elphronzo G. and Sarah D. Colby, who were the «owners of the whole privilege at the Pickering dam, conveyed the ¡same, excepting the gristmill privilege. The plaintiff claims under the exception, and the defendants under the grant in the deed.

Biel in Equity, for an injunction to restrain the defendant from obstructing a passageway over his land, alleged by the plaintiff to be appurtenant to her lot. Facts found by Chamberlin, J., at the September term, 1904, of the superior court, and transferred without a ruling. Carter owned a lot of land forty-eight feet in width, extending from Pine street in Nashua in an easterly direction 100 feet.

<p>Assumpsit. Trial by jury, verdict for the plaintiff, and motion for a new trial. Transferred from the November term, 1904, of the superior court by 'Peaslee, J.</p>

<p>Petition, under chapter 195, Laws 1901, for the assessment of damages occasioned by the taking of the right to maintain a line of poles upon the defendants’ premises. The plaintiffs excepted to certain instructions given the jury. Transferred from the April term, 1905, of the superior court by Stone, J.</p>

Information, in the nature of quo warranto, filed by the attorney-general and prosecuted by the relator. Facts agreed. Transferred from the January term, 1905, of the superior court by Chamberlin, J.

Assumpsit, to recover a balance due upon the contract hereinafter mentioned.

Assumpsit, for services. The actions were tried together at the January term, 1905, of the superior court. The plaintiff Reardon testified that he saw the defendant at a certain time and place, and overheard a conversation between him and the plaintiff Prior. The defendant objected to an inquiry as to what the conversation was, upon the ground that it was not sufficiently established that, the person whom the witness heard in conversation with Prior was' the defendant.

Petition, by tbe plaintiff, for a further order as to the use of the water of the reservoir at the outlet of Crooked pond and Smith’s river. Transferred from the June term, 1905, of the superior court by Wallace, C. J. The petition was filed July 17, 1905, and was heard September 6. At the time the petition was filed, the water in the reservoir was seven inches above a point four feet below the top of the reservoir dam.

<p>Case, for libel. Transferred from the April term, 1905, of the superior court by Stone, J.</p>

Bill in Equity. Demurrer, upon the ground that the plaintiff's have an adequate remedy at law and because they must first •establish their right at law. Transferred from the September term, 1905, of the superior court by Peaslee, J., without ruling, at the request of the parties.

<p>The legislature has constitutional authority to divide towns into voting districts or precincts.</p>

<p>According to the common law of this state, a woman cannot hold the office of notary public.</p>

<p>The racing of horses is a game, and any form of betting thereon is gambling within the meaning of section 6, chapter 270, Public Statutes.</p> <p>The charter of the New England Breeders’ Olub (Laws 1905, c. 232) .does not empower the corporation to promote or permit upon its grounds bookmaking, pool-selling, or other form of betting or gambling on the races and contests of speed, skill, and endurance which it is authorized to conduct.</p>