Volume 74 — New Hampshire Reports

Assumpsit, to recover tbe amount due on a sale of spirituous liquor. Trial by the court and verdict for the plaintiff. Transferred from the January term, 1906, of the superior court by Wallace, C. J. The defendant objected to the reception of a deposition offered by the plaintiff because it was written by a stenographer, who typewrote it under the direction of the commissioner, and because the caption did not state whether the defendant ivas or was not present.

Bill in Equity, to restrain tlie levy of executions. Trial by the court. Transferred from the February term, 1905, of the superior court by .Peaslee, J. In June, 1903, creditors of the Place Lumber Company, defendants in this suit, attached its stock of lumber and other personal property. In December, 1903, executions issued in those actions, and the officer took exclusive possession of the property thereon.

Case, for personal injuries. Trial by jury and verdict for tbe plaintiff. Transferred from tbe January term, 1906, of tbe superior court by Peaslee, J., upon tbe defendants’ exceptions to tbe denial of motions for a nonsuit and tbe direction of a verdict in their favor. Tbe plaintiff was employed in tbe defendants’ tannery, in one room of which a new blower bad been installed a few days before bis injury. Tbe plaintiff was required to oil this machine when it was in motion.

Bide in Equity, to compel the defendant to discharge a mortgage of personal property, given by Austin N. Kingsley to Charles C. Kingsley in April, 1904. Brigham is the guardian of Austin, and the defendant of Charles. Transferred from the October term, 1905, of the superior court by Peaslee, J., upon the defendant’s exception to a decree ordering him to discharge the mortgage. At the time the mortgage was executed neither of the parties thereto was under guardianship.

Assumpsit, to recover the amount of a tax assessed for the year 1904 upon property of the defendants located in the town of Canaan. The writ is dated September 16, 1904. Transferred from the November term, 1905, of the superior court by Chamberlin., J., upon an agreed statement of facts. The defendants are a municipal corporation within the limits of the town of Enfield.

<p>An objection that evidence adduced is insufficient to establish the facts in issue with the requisite degree of certainty goes merely to the weight of the proof and raises no question of law.</p> <p>If there is any competent evidence to sustain a verdict, a motion to set it aside as against the weight of the evidence raises no question of law.</p> <p>Where officers of a corporation are charged with knowingly using funds of the company for the payment of a private debt, their previous statements as to the character of the obligation are admissible in evidence against them.</p> <p>In a criminal proceeding against one party to a written contract, parol evidence is admissible to show the belief under which he acted, although it may tend to alter or contradict the terms of the instrument.</p> <p>Where instructions to a jury embody a plain and correct statement of a rule of law, with all the modifications thereof applicable to the particular case, it is not sufficient ground for a new trial that in commenting upon the evidence the rule was repeated, omitting some of its exceptions and qualifications</p> <p>The recital in a charge of a purely supposititious state of facts and the inferences fairly deducible therefrom, made for the purpose of illustrating to the jury the inconclusive character of certain evidence upon a question at issue, is within the discretion of the trial justice and does not furnish cause for setting aside a verdict.</p>

<p>A road locomotive or traction engine used to draw cars on the highways is required to be registered under the provisions of chapter 86, Laws 1905, and its operator should be licensed.</p> <p>A partnership or corporation owning an automobile or similar vehicle should, register it in the firm or corporate name, but the license required must be> issued to the person who acts as operator.</p>

Case, for negligence, with counts in assumpsit, to recover the amount paid on a judgment recovered by one Rogers against the plaintiff and the expense of defending tlie suit in which the judgment was rendered. Transferred from the April term, 1905, of the superior court by Stone, J. In 1898, the plaintiff conveyed to the defendants a small tract •of land adjoining his own.

<p>Bill in Equity, to remove a cloud from the plaintiff’s title,, caused by (lie levy hereinafter mentioned. Facts found, and case transferred from tbe January term, 1906, of the superior court, by Chamberlin, J.</p> <p>Tbe present plaintiff was the defendant in Bartlett v. Gilcreast, 72 N. H. 145, and the present defendant was the former plaintiff. After the decision in that action, the judgment in favor of Sleeper against John R. Gilcreast was sued and a new judgment was recovered, from which an execution issued and was levied February 20,. 1905, upon all the right in equity of John R. to redeem the undivided half of the tract of land mentioned in the former case that was conveyed by John R. to bis wife (the present plaintiff), April 13, 1897. The defendant was the purchaser of this right at the sheriff’s sale. June 21, 1898, tlio plaintiff, in her own right, and. Ber husband mortgaged the entire tract to John H. Parmerton, and the mortgage was outstanding and unpaid at the time of the levy.</p> <p>It was found in the former action that the conveyance of April 13, 1897, was a gift and that the real estate was all the property ■owned by John B. In this action the plaintiff offered to prove that there was a good and valuable consideration for this conveyance. The evidence was excluded, subject'to her exception.</p> <p>At the time of the levy, the plaintiff and her husband were living upon the tract of land. No homestead was set off to her, nor did she petition or request that one should be set off. The plaintiff excepted to the denial of a motion for a decree in her favor and to the dismissal of the bill.</p>

Petition, for an injunction. Transferred without a ruling from» the April term, 1906, of the superior court by Peaslee, J. The defendant is using an engine in a structure in the fire precinct of Concord, without the written permission of the city engineer and the chief of the fire department.

Bill in Equity, by tbe executors of tbe will of Josiab G. Graves, praying tbe direction of the court as to the execution of the will. Transferred from the January term, 1906, of the superior court by Peaslee, J. By his will, the testator gave $100 a year to each of several persons for certain terms, varying from three tó ten years, or during the life of each person should he die before the expiration of his term.

Case, for negligently causing tlie death of Cyrille Lebrecque, the plaintiff’s intestate. Trial by jury. At the close of the plaintiif.’s evidence the defendants moved for a nonsuit on the grounds (1) that the evidence did not warrant a finding of due care on the part of the decedent, and (2) that it could not properly be found that the defendants were guilty of negligence which was the sole cause of the injury complained of.

Bill in Equity. This is the same case which was before the court in 78 N. H. 518, with the exception of some additional facts not necessary to be here stated, Transferred from the April term, 1906, of the superior court by Pike, J.

Trespass, for breaking and entering tbe plaintiff’s close and destroying his buildings. Plea of soil and freehold as to the portion of the locus described as White’s Rocks, and the general issue as to* the remainder. Trial by jury. Verdict for the plaintiff as to that: part of the locus described in the plea of soil and freehold, and not. guilty as to the remainder.

<p>An indictment in terms charging an unlawful delivery of intoxicating liquor in violation of section 15, chapter 95, Laws 1903, as amended by chapter 49, Laws 1905, is bad upon demurrer if it fails to allege that the respondent, at the time of the offence set forth, held a license permitting him to engage in the traffic in liquor.</p>

Bill in Equity, for an apportionment,. Trial by the court. ‘Transferred from the October term, 1905, of the superior court by Pike, J. Sally Randall devised to the plaintiff certain real estate as follows : “ I give and bequeath the use of my homestead place in Canterbury to Edith M. Keniston during her life, and at her decease said homestead is to become the property of her children in equal shares.” The plaintiff has two minor children of whom the defendant is guardian.

Petition, for leave to discontinue a highway. The case is the same as that reported in 7 3 N. H. 7 2. After the rescript was filed in the superior court, the plaintiffs moved that the petition be referred to the county commissioners. The defendants objected to such reference because two of the petitioners for the new road were related to-two of the selectmen who laid it out. The court granted the motion, and the defendants excepted.

Case, for deceit in the sale of a horse. Trial by jury and verdict for the plaintiff. Transferred from the November term, 1905, of the superior court by. Chamberlin, J., on the defendant’s exceptions to the denial of motions for a nonsuit and a verdict in his favor and to certain instructions set forth in the opinion.

<p>It is a defence to an indictment for not causing a child to attend school that the sohoolhouse is not within reasonable walking distance and no conveyance is provided by the school board.</p> <p>Indictment, for not causing a child eleven years old and in the custody and under the control of the defendant to attend a public school, as required by chapter 13, Laws 1903. At the May term, 1905, of the superior court, it was agreed before Wallace, C. J., that the defendant was guilty unless the facts hereinafter stated constitute a defence.</p> <p>The defendant and the child reside in the school district of Orford three miles from a sehoolhouse in the district where a public school is annually taught. Under the circumstances it was unreasonable to require the child to walk that distance, and no transportation was provided by the school board. The board set aside twenty-five per cent of the school money for the conveyance of scholars, and offered the defendant a proportionate part of that sum to convey this child and others in his custody and under his control to and from school. The defendant declined to accept the sum offered and refused to transport the child. The board were unable to procure transportation for the sum offered the defendant. The rate offered him for the service was the same paid for the conveyance of other scholars in the district where such conveyance was required.</p>

Appeal, from the probate of a will. The issues were: (1) Was the testatrix, Lora T. Bosworth, of sound mind when she executed the will?

<p>Wbit of Entby, to recover possession of a tract of land in Hanover. The plaintiffs are executors of the will of William H. White. The defendants are William Ii. Poole, who filed a disclaimer, and his wife, Annie L., who for a plea filed a bill in equity praying for the specific performance of a parol contract made with the plaintiffs’ testator. Facts found, and case transferred from the November term, 1905, of the superior court, by Ohamberlin, J.</p> <p>In the summer of 1899, Mrs. Poole, being then in poor health, decided to make her home in Cuba and notified White, who was her uncle, of her intention. He wanted her near him; and in order to induce her not to remove to Cuba, he promised that if she would remain in Hanover he would buy a lot they, should both approve, erect a house upon it, and give her the land and building as soon as the house was finished. His offer was accepted, the lot was selected, he built the house and put her in possession of it as her property, and she has occupied it ever since under a claim of ownership. It was his intention to convey the property to her, but he died in November, 1903, without doing so. In 1902, White, with the knowledge and consent of Mrs. Poole, tried to exchange the house and lot for a farm in Hanover which he thought would be more suitable for her and might at some time produce an income; and this was one reason for his failure to convey the property to her.</p> <p>When the case came on for trial it was ruled that the plaintiff in the bill in equity should produce her evidence in support of the allegations thereof; and after a hearing the court made a decree for her in accordance with the prayer of the bill, and ordered an entry of judgment for the defendant in the action at law. The plaintiffs in the action at law thereupon moved that the decree and order be set aside, and that judgment be ordered for them hr the writ of entry. • The motion was denied, subject to exception.</p> <p>The plaintiffs offered to show by White’s widow that while the house was in process of erection he said he was building it to rent. The evidence was excluded, and the plaintiffs excepted. William H. Poole was permitted to testify to matters happening in the lifetime of White in so far as they tended to establish his wife’s claims; and she was permitted to show by one Storrs that her husband came to him shortly before White’s death, for the purpose of arranging for a transfer of the property to her. »To both of these rulings the plaintiffs excepted.</p>

<p>Where an executor, upon settlement of the testator’s guardianship account, is charged in specie with certain promissory notes as the property of the wards, and no appeal is taken therefrom, the decree is conclusive upon the executor’s subsequent petition for leave to transfer the securities to a. new guardian.</p>

Indictment, against three respondents for keeping for sale “ one pint of distilled spirit . . . called whiskey.” Trial by jury and verdict of guilty. Transferred from the April term, 1906, of the superior court by Chamberlin, J. The indictment alleged that the defendants were not licensed to sell intoxicating liquor. The defendants moved to quash the indictment because the word “liquor” was not used in it as descriptive of the offence, under section 33, chapter 95, Laws 1903.

Petition nor Partition. Trial by the court and decree for the plaintiff. Transferred from the April term, 1906, of the superior court by Chamberlin, J'. Lydia A. Murdock died seized of the premises of which partition is sought.

<p>After instructing the jury that the defendants were not liable unless the plaintiff’s injury was caused by a defect in the bridge, and after defining a bridge, in substance, as including not only the structure which spans the stream but also the abutments upon which it rests, and the wings, if any, and such back filling as is required to make the entire structure complete and safe, the court told them that they were to determine where the highway leaves off and the bridge begins.</p>

Petitions, for abatements of a portion of tbe taxes assessed upon tbe plaintiffs’ real estate in tbe years 1898 to 1896, inclusive. Transferred from tbe November term, 1905, of tbe superior court by Peaslee, J. Tbe real estate in question was appraised by tbe defendants for purposes of taxation in 1893 at $60,000, in 1894 at $68,600, and in 1895 and 1896 at $67,100.

<p>Bill in Equity, by the executor of the will of James Thompson, alleging that by the terms of chapter 40, Laws 1905, legacies given by said will to each of the defendants are subject to a tax of five per cent, which it may be the duty of the plaintiff to pay. The defendants claim that said chapter is unconstitutional; and upon this question the plaintiff asks the instruction of the court. By leave of court, the attorney-general appeared for the state. The facts alleged in the bill were found to be true, and the case was transferred from the October term, 1905, of the superior court, by Pike, J.</p> <p>Section 1, chapter 40, Laws 1905, is as follows: “All property within the jurisdiction of the state, real or personal, and any interest therein, whether belonging to inhabitants of the state or not, which shall pass by will, or by the laws regulating intestate succession, or by deed, grant, sale, or gift, made or intended to take effect in possession or enjoyment after the death of the grantor, to any person, absolutely or in trust, except to or for the use of the father, mother, husband, wife, lineal descendant, brother, sister, adopted child, the lineal descendant of any adopted child, the wife or widow of a son, or the husband of -a daughter, of a decedent, or to or for the use of charitable, educational, or religious societies or institutions in this state the property of which is by law exempt from taxation, or to a city or town in this state for public purposes, shall be subject to a tax of five per cent of its value, for the use of the state.”</p>

Bill in Equity, to remove a cloud upon the plaintiff’s real 'estate title. Trial by jury and verdict for the plaintiff. Transferred from the January term, 1906, of the superior court by Peaslee, J.. The defendant claimed title by virtue of a levy against one Tuttle. While the levy was in progress the plaintiff brought a bill to enjoin the same, which upon hearing was dismissed without prejudice. Two lots were involved.

Case, for negligence. Transferred from the January term, 1906, of the superior court by Stone, J. The questions of law are raised by the plaintiff’s demurrer to the plea or brief statement filed by the defendant, the material parts of which are as follows: “ At the time of the collision in the declaration complained of, the defendant, a corporation duly established by law and operating a railroad between various points in the states of New Hampshire and Massachusetts and…

<p>Whether a jury shall be interrogated as to the grounds upon which they proceeded in arriving at a verdict, and whether a verdict shall be set aside because instructions were disregarded, are questions of fact determinable by the trial court.</p> <p>Information, for a second offence in illegally keeping for sale spirituous liquor. Trial by jury and verdict of guilty. Transferred from the April term, 1906, of the superior court upon a bill of exceptions allowed by Pike, J.</p> <p>The state submitted evidence of the keeping for sale and of the prior conviction. The jury were instructed that they must acquit the defendant unless they were satisfied of his guilt beyond a reasonable doubt by a consideration of the testimony relating to the keeping for sale. After the jury rendered the verdict and before they left their seats, the defendant’s counsel moved that the court inquire of them whether they had considered the former conviction as evidence of the subsequent offence charged in the information, but offered no testimony in support of the motion other than Ms assertion that he thought so. The court declined to make the inquiry, and the defendant excepted.</p> <p>Subsequently, after the jury had been discharged from further attendance at the term, the defendant renewed his motion and also moved that the verdict be set aside, and submitted the affidavit‘of his counsel, in which were the following statements: “ I overheard some of the matters discussed by the jury while considering the case. ... I overheard the following words: ‘Well, now, there is the first conviction.’ ... I believe that in the finding . . . . they considered as evidence the fact that Joel Frazier was previously convicted of the offence of illegally selling liquor.” The motions were denied, and the defendant excepted.</p>

Assumpsit, for goods sold. Trial at the April term, 19 06, of the superior court by Wallace, C. J., who ordered a verdict for the defendant, subject to the plaintiffs’ exception. The plaintiffs are wholesale fur dealérs in New York.

Case, for negligence. At the April term, 1906, of the superior court, a nonsuit was ordered upon the defendants’ motion by Wallace, C. J., subject to exception, at the close of an opening statement in substance as follows : Tommy Corbin, the deceased, was a bright, active boy nearly fourteen years old. December 26, 1904, he was killed by an explosion of dynamite at Camp 38, on the premises of the defendants in the unincorporated town of Success, near Berlin.

At the April term, 1906, of the superior court it was ruled by Chamberlin, J., that the affidavit set forth no legal ground of defence to the action, and the defendants excepted.

It appeared that the liquors alleged to have been kept for sale were ordinary wine and whiskey. After the state bad rested, the defendant moved that a verdict of not guilty be directed, upon the ground that the state had introduced no evidence that the wine and whiskey were intoxicating, and also because it did not appear that the liquors contained more than one per cent of alcohol. The motion was denied, and the defendant excepted.

Case, fox negligence in consequence of which Harlie C. Wright, the plaintiff’s intestate, was killed at a grade crossing in Nashua. Trial by jury and verdict for the plaintiff. Transferred from the January term, 1906, of the superior court by Stone, J., on the defendants’ exception to the denial of their motion for a non-suit.

<p>A threat by one member of a fraternal order to kill another furnishes probable cause for the institution of proceedings for the expulsion of the declarant, under a by-law providing that punishment for those guilty of “improper conduct.”</p> <p>"Where members of a fraternal order have probable cause for believing a fellow-member to be guilty of misconduct, they are not liable for a conspiracy merely because they confederate together to procure the imposition of a penalty provided by the by-laws.</p> <p>Members of a fraternal order who are charged with the duty of trying a fellow-member for an offence within the jurisdiction of the lodge are judicial officers, and are not liable in damages for wrongs committed by them wliile acting in that capacity.</p>

Motion, by tbe plaintiff, for leave to prosecute tbe claim of tbe principal defendant against tbe trustees, the estate of the deceased trustee being administered in tbe insolvent course. Tbe suit was begun in tbe lifetime of tbe deceased trustee, and upon bis death tbe executors were summoned in.

Petition, under section. 8, chapter 76, Public Statutes, for leave to file a statement of claim for damages resulting from a defect in a highway. The defendants negligently permitted a gutter at the side of a, highway to remain in such condition that water accumulating therein overflowed the roadway and froze, thus causing the defect complained of.

<p>Whether a right of entry upon real estate before breach of a condition subsequent is transferable by will or deed, quoire.</p> <p>Where a proposition to donate real estate for a library building and public park is accepted by the municipality, a provision in the deed that the conveyance is made “ upon the express condition ” that the premises shall be held and used for the purposes specified does not constitute a condition subsequent, a breach of which renders the estate liable to forfeiture, when it is apparent from a consideration of all the competent evidence that the parties contemplated a conveyance upon trust, and that the words of condition were used solely to declare the purposes to which the land should be devoted.</p>

<p>Case, for personal injuries alleged to have been caused by the defendants’ negligence. Trial by jury and verdict for the plaintiff. Transferred from the November term, 1905, of the superior court by Chamberlin, J., upon the defendants’ exception to the denial of their motion for an order of nonsuit.</p> <p>The testimony tended to prove the following facts: February 20, 1905, the plaintiff was employed by the defendants as third hand for one of the paper machines in a room of their paper mill, and continued in the employment until his injury on April 30, 1905, working during the daytime and the nighttime of alternate weeks. He was about twenty-seven years old, of average intelligence, and had never worked in a paper mill before. The hands, for each machine were a machine tender, a back tender, and a third hand. A foreman for the room had oversight of the business and control of the employees. The duties of the third hand were to pick up broken paper, sweep the floors, wash the screens, assist in removing paper from the back end of the machine, do up the paper for shipment, and carry it to another room. The paper machine to which the plaintiff was assigned was sixty to seventy feet long, and comprised several parts, among which were three sets of press rolls, each set consisting of the following rolls supported in horizontal positions in a suitable frame: a wooden roll about eight inches in diameter, located at the front end of the frame about three feet above the floor of the room; another wooden roll of the same diameter, located about three feet back of the first one and at a slightly higher elevation; a wooden roll of greater diameter in the middle than at the ends, called the spread roll, located directly in front of the second roll; two rolls about eighteen inches in diameter, known as press rolls, located twelve to fifteen inches back of the second wooden roll, placed one above the other, and running so near together as to pinch the felt belt and paper passing between them, the upper roll being made of brass and the lower one of rubber or some material covered with rubber; and several other rolls, some located further back than the press rolls, and some further forward but in a lower plane. An endless felt belt passes from the first wooden roll, over the spread roll and the second wooden roll, to and between the press rolls, and thence over the other rolls back to the first wooden roll. When the machine is running this belt is taut, and receives the paper from a preceding part of the machine and carries it forward between the press rolls to the next succeeding part. The press rolls revolve inwardly toward the front of the machine and press the paper as it passes between them.</p> <p>It is necessary to wash and turn the felt belt from time to time. Preparatory to so doing, the spread roll is taken out, the tension of the belt is further loosened by an adjustment of a portion of the machine designed for the purpose, and the speed of the belt is reduced. An employee standing at the front side of the machine, opposite the space between the two wooden rolls, and another standing on the other side, simultaneously push the edges of the belt toward its median line, thereby bunching or “ l’oping ” it up. When this is accomplished, water is poured on the belt for about ten minutes. Then the employee at the front of the machine grasps from the upper side the edge of the belt farthest from him and pulls toward himself, while the other employee, putting his hands under the belt and grasping the other edge, pulls toward himself. As the belt passes around in its course it is turned by several pulls made in that way. The operation, from beginning to end, occupies from twenty-five to thirty minutes.</p> <p>Shortly after eleven o’clock in the evening of Saturday, April 30, the foreman called the plaintiff to assist him in roping, washing, and turning the belt of the first set of press rolls. The machine was short one hand at the time, and the crew were hurrying to finish work before midnight. The plaintiff had never assisted at that kind of work previously, excepting on. one occasion, when he operated the lever to reduce the speed of the machine so that the belt could be turned over; and at that time he stood in such a position that the press rolls were between him and the other employees and interfered with his view of the operation. He had assisted once in putting in a new belt, but the machinery was stopped and partially taken apart at the time. He had seen belts of the other paper machine roped, washed,- and turned on two or three occasions, but paid no particular attention to the process. He had assisted in taking the paper from the driers to the stacks at the back end of the machine, while the paper was passing “ through a number of rolls.” On the night of the accident the foreman sent the back tender to do the work which the plaintiff ordinarily did, and ordered the plaintiff to go to the back side of the machine and raise the spread roll, so it could be taken out. This was done; and thereupon the plaintiff, in compliance with the foreman’s direction, assisted the latter in roping the belt. Water was then allowed to flow upon the belt for about ten minutes. The foreman then took hold of the far edge of the belt from the .upper side and pulled, and told the plaintiff to take hold of the other edge from the under side and pull. The plaintiff did as he was directed, his hand being under the belt where he could not see it and the belt hanging upon his arm. His hand was drawn over the second wooden roll and on between the press rolls, and was injured.</p> <p>The place was well lighted. The plaintiff was not warned of any special danger. He could see the rolls. He knew that they were moving, that the felt belt was moving “ fairly fast,” and that if he got his hand between the press rolls it would be injured. He kept hold of the belt until his hand was caught by the press rolls. There was nothing which attracted his attention to the liability of injury. The only negligence relied upon by him was the defendants’ failure to warn him of the danger of his hand being drawn between the rolls, which he claimed he did not know of and appreciate.</p>

Trespass, for breaking and entering the plaintiff’s close situated in the town of Goshen. Trial by the court and verdict for the defendants. Transferred from the May term, 1906, of the superior court by Wallace, C. J.

<p>Bill in Equity, by two holders of preferred stock in the Massachusetts Construction Company Incorporated, in behalf of themselves and all other stockholders of the corporation,'alleging in part, in substance, that as a result of fraud all the assets of the corporation have passed into the possession and control of the New York Security and Trust Company, one of the defendants, and praying for an accounting by the latter company. This is the same suit reported in 72 N. H. 273. There was a trial by the court. A general decree was made in favor of the plaintiffs against the Trust Company, and the bill was dismissed without costs as to the other defendants. The facts and rulings upon which the decree was based, together with the defendants’ exceptions thereto, were transferred from the October term, 1905, of the superior court by Peaslee, J.; and so far as material to the disposition of the case, they are stated in the opinion.</p>

Petition, for an abatement of taxes. Trial by the court and decree for the plaintiffs. Transferred from the September term, 1906, of the superior court by Stone, J., upon the defendants’ exception to the denial of their motion to dismiss the petition.

Case, for personal injuries alleged to have been caused by the defendant’s negligence. Trial by jury, resulting in a disagreement. Transferred from the May term, 1906, of the superior court by Pilce, J., upon the defendant’s exception to tbe denial of his motion for a nonsuit. The evidence tended to prove the following facts: The plaintiff, who was a man of ordinary intelligence and experienced in doing such work, was employed by the defendant to run a bench saw.

<p>While a parol grant of an easement may constitute merely a revocable license., possession thereunder for twenty years by the grantee claiming to be the owner, with the acquiescence of the grantor, will establish title in the grantee by prescription.</p> <p>In such case, if it is doubtful upon the evidence what the understanding of the parties was as to the character of the grantee’s possession, the question must be submitted to the jury.</p> <p>Trespass quare clausum, for passing to and from a spring of water on the plaintiff’s land, across the road from the defendant’s house, and taking water therefrom. Trial by jury. The. defendant pleaded a prescriptive right to the use of the spring... Transferred from the April term, 1906, of the superior court bvr PiTce, J.</p> <p>Some time before 1850, one Willard owned both the Wells and the Parker land, and conveyed the Parker place to Mason, who built the house now occupied by the defendant. After various transfers, the title to this place was acquired in 1864 by Mrs.. McCollister, who continued to own it until 1886, when the title-passed from her and finally vested in the defendant in 1900.. There was evidence tending to show that for fifty years or more-the owners of the Parker place had used the spring in question.. Mrs. McCollister testified that when she went to live in the Parker place the family got their water from the spring or well opposite-the house; that some three years later they dug a well about two rods from the other one and on the same land, and used the water from it while she owned the place; that Willard, the owner of the Wells place, gave “us permission to dig it,” that “he gave me a right to use water there,” that he said: “You have a perfect right to use water from that well; I give you permission ” ; that she supposed she had a right to the new well, but did not claim a right to the old one.</p> <p>The plaintiff moved that a verdict be directed in his favor, on the ground that there was no evidence from which the jury could' properly find that the use made of his premises by any one under whom the defendant claims, from 1864 to 1886, was adverse.. The court granted the motion, and the defendant excepted.</p>

Petition, for a highway in the defendant town over the Tucker toll-bridge across the Connecticut river. Transferred from the April term, 19 06, of the superior court by Pike, J., upon an agreed statement of facts.

Bill in Equity, by the trustee under the will of Susan J. Holbrook, praying for instructions as to tlie execution of the trust. Transferred from the October term, 1906, of the superior court by Beaslee, J.

<p>Where one loans money at interest and takes as security for the loan an absolute deed of real estate, giving a bond to the borrower to convey the realty to him upon payment of the loan, the lender is taxable for the money loaned, under clause 5, section 7, chapter 55, of the Public Statutes.</p> <p>In such case the money loaned is not merged in the real estate, so that the taxation of the real ostate to the lender is the taxation of the money.</p>

Trespass (piare clausum eb de bo?iis. Trial by jury and verdict for the plaintiff. Transferred from the September term, 1905, of the superior court by Chamberlin, J. The controversy was as to the location of the divisional line between the parties.

Motion, by the plaintiff, to be relieved from the agreement on which this ease was submitted when it was previously before the court (73 N. H. 222, 391). Hearing before Stone, J., by whom the case was transferred from the November term, 1906, of the superior court.

Petition, for a writ of habeas corpus, filed December 28, 1906.

Bill in Equity, for directions in respect to the execution of a will. The bill was taken pro confesso, and was transferred without a ruling from the September term, 1906, of the superior court by Peaslee, J. The material allegations of the bill are as follows: Mary Dyson died testate in 1898, and her will has been duly proved and allowed. In 1905, the plaintiff was appointed trustee by the probate court, to hold certain property and estate described in the will.

Petition, for an injunction. Transferred from the May term, 1906, of the superior court by Wallace, C. J. The case is the same as that reported, in 73 N. H. 121.

Action at Law. Tlie declaration is as follows: “In a plea of the case, for that the said defendant, on December 13, 1894, leased to the said plaintiff a part of the Northern Hotel, so called, situated on Main street in said Littleton, as a boarding-house; that in October or November, 1905, the said lease was continued for one year, supplemented by some minor agreements on the part of each (a copy of ivhich lease the plaintiff does not have); that on June 15, 1906, because of…

Petition, for an abatement of taxes. Transferred from the April term, 1906, of the superior court by Chamberlin, J., upon an agreed statement of facts. The case is now before the court upon the plaintiffs’ motion for a rehearing. Early in 1903, the Gale Shoe Manufacturing Company, a Massachusetts corporation, desired to come to Portsmouth and there engage in the manufacture of shoes.

<p>■Where the extent and capability of a reservoir upon which mills are dependent for power have been determined by judicial decrees in proceedings to define the rights of the various proprietors, a refusal by the superior court to reopen the question, upon the petition of one owner for interlocutory orders as to the use of the water, presents no question of law.</p> <p>Whether a petition by a mill-owner for orders respecting the use of water from a reservoir should be so amended as to present for adjudication the question of his right to employ the power for a different purpose, is a matter determinable by the superior court.</p> <p>A grant of the water used by a certain mill does not limit the manner or objects of the use, unless such an intent is clearly disclosed.</p>

Case, for negligently causing the death of the plaintiff’s intestate, Catherine Fitzgerald. Trial by jury and verdict for the plaintiff. The action has been before the court upon a former transfer. See 73 N. H. 317.

Assumpsit, for the breach of a contract of Charles G. Smith, the defendant’s testator, to employ the plaintiff for one year upon the Manchester News.

Bill in Equity, for the rescission of a sale of real estate on account of fraud, etc. Trial by the court. Bill dismissed without prejudice. Transferred from the January term, 1906, of the superior court by JPeaslee, J. The plaintiff purchased a farm of the defendant in 1904, for the price of $2,500, of which he paid one half in cash and gave his note secured by a mortgage of the farm for the balance, payable in annual instalments of $100 each.

Case, for negligently causing the death of the plaintiff’s intestate. Trial by jury and verdict for the plaintiff. Transferred from the May term, 1906, of the superior court by Pike, J., upon the defendants’ exception to the denial of a motion for the direction of a verdict in their favor. A highway in East Manchester known as the Hall road crosses-the defendants’ railroad at grade. The highway runs north and south.

Appeal, from the acceptance by the probate court of the commissioner’s report allowing the plaintiff’s claim against the estate of Charles G. Smith, the defendant’s testator. Trial by jury and verdict for the defendant. Transferred from the September term, 1906, of the superior court by Chamberlin, J. The specification contained items of cash which the plaintiff claimed were for money loaned.

Petition, for the revision of an order of the supreme court, made September 18, 1885, granting the plaintiff $6,000 alimony upon her libel for divorce for adultery against the defendant. The defendant’s answer alleged that the judgment for alimony was based upon an agreement of the parties in writing under seal, made with the approval of and adopted by the presiding justice of the court. The agreement is as follows: Supreme Court. Strafford, ss. . September T. 1885.

<p>Bill oe Interpleader. Transferred, from tbe April term, 1906, of tbe superior court by Peaslee, J.</p>

Case, for personal injuries-. Trial at the October term; 1900, of the supreme court before Blodgett, C.- J., and a jury. A non-suit was ordered at the close of the plaintiff’s evidence, and he excepted. - The defendant owned a building occupied by several tenants, and containing a hall which was rented by a lodge of Odd Fellows of which the plaintiff was a member. Whether the lodge was-' an association or a corporation did noi, appear.

Assumpsit, upon the defendant’s promissory note for $734.52, dated April 1,1895, payable to the plaintiff on demand witb interest. The writ is dated November 2, 1905. Plea, the statute of limitations ; replication, a new promise within six years. Trial by jury and verdict for the plaintiff.

Appeal, from the assessment of damages for land taken for a highway. Transferred from the September term, 1906, of the superior court by Pike, J., upon an agreed statement of facts. Before 1895, the owner of a tract of land in Manchester plotted it and recorded the plan, which showed the lots into which it had been divided and a proposed street called Brooklyn avenue.

Case, for personal injuries. Trial by jury. Transferred from tbe January term, 1907, of tbe superior court by Stone, J., upon the plaintiff’s exception to an order directing a verdict for the defendants. The plaintiff’s evidence tended to prove that she stepped on some oil which had been spilled on the floor of the room in which she worked, fell, and broke her arm.

Ooos, Harriman v. Moore & a. Case, for personal injuries alleged to have been caused by the •obstruction of a public highway in the town of Gorham, upon which the plaintiff was traveling with her daughter. Trial by jury and verdict for the plaintiff.

Petition, for mandamus. Transferred from tbe April term 5 1907, of tbe superior court by Chamberlin, J. Tbe petition alleges tbat tbe plaintiffs are creditors of tbe Breeders’ Club, having an overdue and unpaid demand against tbat corporation; tbat tbe defendant Hollis is clerk of tbe corporation and bas in bis possession certain records, accounts, and papers of tbe. corporation, wbieb bave relation to tbe plaintiffs’ demand, namely, tbe clerk’s records, the names of…

Bill in -Equity, to set aside a deed as fraudulent against the plaintiff’s homestead and dower rights, and for other relief. Trial by the court. Held: owned, and enjoyed by the said Samuel D. Hill during the term of his natural life.” The son was present at the wedding. Both he and his father concealed from the plaintiff the fact that the conveyance had been made, and permitted her to marry in the belief that Samuel D. Hill was still the owner of the farm.

<p>Decree, as to the distribution of funds in the hands of a receiver, made at the January term, 1907, of the superior court by Peaslee, J., after hearing the facts.</p> <p>The defendant bank began business in 1880, and received special deposits, constituting a guaranty fund under the charter (Laws 1879, o. 131), to the amount of $125,000. Under vote of the trustees, general depositors were entitled to three and one half per cent per annum as interest upon their deposits in 1897, and that rate had been paid for several years prior thereto. April 29, 1897, the trustees, with the concurrence of the bank commissioners, voted that the corporation go into liquidation and that the three and one half per cent interest promised depositors for the year ending April 30, 1897, be credited to depositors’ accounts and paid out on or after May 1, 1897. April 29, 1897, the clerk of the corporation sent notice to the general depositors that the three and one half per cent interest promised for the year ending April 30, 1897, would be paid May 1, 1897, and that the bank would then proceed to liquidate. This interest was paid as called for. In the process of liquidation, 100 per cent has been paid the general depositors in various dividends. The interest on the deferred dividends at three and one half per cent amounts to more than the sum in the hands of the receiver. The general depositors and the depositors for the guaranty fund each claimed this sum. Subject to exception by the depositors for the guaranty fund, a decree was entered in favor of the general depositors.</p>

Case, for negligently causing tlie death of Matilda Ouillette, the plaintiff’s intestate. Trial by jury and verdict for the plaintiff. Transferred from tlie January term, 1907, of the superior court by Pike, J. The plaintiff’s evidence tended to prove the following facts: On September 28, 1905, Mrs. Ouillette was a passenger on one of tlie defendants’ open cars, and was seated nearly over and a few feet from tlie fuse-box.

Bill in Equity, by the plaintiff as the administrator of the •estate of Emily Sweatt, praying that the defendant, as executor •of the will of Maria Buck, account for certain funds which came to his hands in trust for the benefit of the plaintiff’s intestate. Trial by the court. Transferred from the November term, 1906, of the superior court by Chamberlin, J. Maria Buck died April 29, 1902.

Indictment, for unlawfully keeping for sale fermented cider. Trial by jury and verdict of guilty. Transferred from tbe November term, 1906, of tbe superior court by Chamberlin, J.

Case, for negligently causing the death of the plaintiff’s intestate. Trial by jury and verdict for the plaintiff. Transferred from the December term, 1906, of the superior court by Stone, J., on the defendants’ exception to the denial of a motion for an order directing a verdict in their favor.

Case, for injuries to the plaintiff’s land caused by the percolation of water from .Dead river, across which the defendant maintains a dam. Plea, the general issue. Trial by jury and verdict for the plaintiff. Transferred from the December term, 1906, of the superior court by Stone, J. The plaintiff’s sole claim was for injuries occasioned by the percolation of water from the defendant’s pond through land of the Grand Trunk Railway into her sand-pit.

Trespass to the person. Trial by jury and verdict for the plaintiff. Transferred from the December term, 1906, of the superior court by Chamberlin, J. During a quarrel the defendant ejected the plaintiff from a house so roughly that.she fell and injured her arm. Subject to-the defendant’s exception, testimony was admitted that before the plaintiff regained her feet she said the defendant pushed her down.

<p>Bill in Equity, for the termination of a trust. Transferred from the January term, 1907, of the superior court by Wallace, C. J.</p>

Case, for negligence. Trial by jury. Transferred from the January term, 1907, of the superior court by Pike, J., upon the plaintiff’s exception to an order of nonsuit. The plaintiff, an employee of the defendants, was burned and injured by an explosion which occurred while he was assisting in cleaning out a hydraulic main in their gas works.

<p>A finding that a licensee has violated the statute regulating the traffic in intoxicating liquor and is no longer entitled to exercise the privilege conferred by his license, made by the state board of license commissioners after due notice and hearing, is a judicial act, and the judgment rendered is valid until set aside upon appropriate proceedings.</p> <p>The fact that the license commissioners, prior to a hearing on a complaint against a licensee and in his absence, heard and considered evidence tending to prove a violation of law, does not render their proceedings void, unless it appears that at the time of the hearing the licensee was justifiably ignorant of such conduct, or that he seasonably objected to the tribunal as disqualified by prejudice.</p>

Bill in Equity, for the restoration of the remains of Harriet A. Read to the place of their original interment. Trial before Peaslee, J., at the January term, 1907, of the superior court. The defendants excepted to the overruling of their demurrer and to a decree ordered for the plaintiff. Harriet A. Read, daughter of John L. and Lucy Read, died in 1855, aged seven months, and was buried in a cemetery lot owned by her father.

Assumpsit, against the acceptors of negotiable time drafts. Facts agreed. The plaintiffs are bona fide indorsers and holders of the drafts for value, having obtained them 'before maturity, in the regular course of business, without knowledge of any infirmity or of facts which would put them upon inquiry.

<p>The validity of a liquor license issued to a person competent to receive it and the liability of the licensee and his sureties upon the accompanying bond are not affected by the fact that the license was procured for the benefit of one to whom it could not be legally issued.</p> <p>Debt, on a bond given by English as principal and the other defendants as his sureties. Trial by the court. Transferred from the April term, 1907, of the superior court by Wallace, C. J.</p> <p>In 1905, English obtained a license for the sale of liquor to be exercised in Gilsum, and furnished the bond now in suit. Afterward during the term of the license, upon notice and a hearing, the state board of license commissioners found he had violated the terms of his license, which they thereupon revoked. The defendants filed a plea alleging that the license was illegally issued to English, that it was in fact procured for the benefit of one Race, who was not entitled to a license under the law, and that therefore no license was issued to English and the bond is invalid. They offered to prove the facts stated in the plea, but the court excluded the evidence, and the defendants excepted. A verdict having been found for the state, it was agreed that if the plea stated no •defence there should be judgment on the verdict.</p>

<p>Trespass, for assault and false imprisonment. Trial by jury and verdict for the plaintiff. Transferred from the April term, 1906, of the superior court by Chamberlin, J.</p> <p>The plaintiff and one Frost were formerly partners in a general store in Windham. In March, 1904, the partnership was dissolved, the plaintiff assuming the firm’s indebtedness. The defendant Tilton was a creditor to the amount of $858.69, and held notes of the firm for the indebtedness. March 15, 1904, the plaintiff mailed Tilton a check for $300 and a new note for the balance of the old debt. In an accompanying letter he wrote that he had bought out his former partner, that he hoped Tilton would take a new note in part payment as old ones became due, and that he was to be backed by George E. Seavey, whose financial standing could be looked up. By May 14, 1904, the plaintiff had fully paid the old debt. Thereafter he continued to trade with Tilton, making payments from time to time, until his failure in November, 1904. In February, 1905, he was petitioned into bankruptcy, being then indebted to Tilton, who proved his claim in bankruptcy. At a hearing before the referee in bankruptcy, the plaintiff testified that Seavey had not agreed to back him financially.</p> <p>March 10, 1905, Tilton swore out a complaint against the plaintiff, charging him with obtaining goods under false pretences, upon which a warrant was issued returnable to the police court of Portsmouth. The charge in the complaint was that the plaintiff had procured credit of Tilton by falsely representing that Seavey, a man of financial responsibility, was to back the plaintiff hi the business in which he was about to engage. March 17, 1905, the defendant Cram, a deputy sheriff, arrested the plaintiff upon the warrant at Windham and took him to Portsmouth, arriving there after the adjournment of the regular session of the police court for that day. The plaintiff and Cram went to the office of Til-ton’s attorney, who was the justice by whom the warrant was issued, and an arrangement was made with the justice of the police court for a special hearing during the afternoon. While in Portsmouth, the plaintiff protested his innocence, claimed that the warrant was unjust, and was apparently anxious to obtain counsel. After making fruitless efforts in this direction, it was suggested that one Pulver, who had acted as counsel for Tilton in the bankruptcy proceeding, could act as counsel for the plaintiff. A conference was held, and Tilton’s counsel explained to the plaintiff the meaning of the word “backer,” as used in his letter. Being advised that the only way to escape jail was to secure Tilton for his debt, the plaintiff agreed to a conveyance of his homestead right and personal exemptions, and partly executed such a conveyance while at Portsmouth in the custody of Cram. At the plaintiff’s request, Cram afterward accompanied him to Manchester, where his wife joined in the conveyance; and this being done, the officer released the plaintiff from arrest, at the request of himself and Tilton.</p> <p>The defendants excepted to the following portion of the charge to the jury: “ So far as the defendant Cram was concerned, it was his duty under the law to take the plaintiff under the warrant, and take him before the court, and make due return of the process and lie acted unlawfully in not presenting him before the court, and in permitting him to enter into this contract whereby he allowed this complaint to be suppressed, and he was liable for such damages resulting to the plaintiff’ in consequence of that suppression. The defendant Tilton, having lawfully sworn out the warrant and placed it in the hands of the deputy sheriff, had no-right to enter into a contract whereby the warrant might be suppressed ; and after participating in the contract and taking part in that wrongful act, he is liable for any wrong which Clark suffered as a result of this process which was used against Clark. The defendants are liable because the evidence, without any question, fails to show a justification of the suppression of the criminal process, and they are liable for such damages as result from the abuse. In other words, they are liable in exactly the same way as if the defendants had proceeded without a warrant.” The jury were also instructed that they should find a verdict for the plaintiff, and that the only question for their consideration was one of ■damages.</p>

Assumpsit, on a policy of insurance upon the life of the plaintiff’s wife. Trial by jury and verdict for the plaintiff.

Bill in Equity, by tbe executors of tbe will of Josiah G-Graves, late of Nashua, praying for direction as to the execution of the provisions of the will. The will is the same that was considered upon a former transfer. Harris v. Ingalls, ante, 35. The same facts are now transferred, together with some additional facts which, so far as material to the questions considered, appear in the opinion. Transferred from the May term, 1907, of' the-superior court by Peaslee, J.

<p>Probate Af’PEAL. Transferred from the January term, 1907, of the superior court by Slone, J.</p>

Information, in the nature of quo warranto, to determine what persons constitute the local executive committee of the democratic party in Ward 5, Manchester. The relators were recognized as such committee by the democratic state convention and are now recognized by the state committee of that party. Facts agreed. Transferred without a ruling at the request of the parties by Peas-lee,, J., from the January term, 1907, of the superior court.

Bills in Equity^, the first to avoid a fraudulent conveyance, and the second to remove a cloud from the plaintiffs’ title. There was a decree for the plaintiffs in the first action against all the defendants except Mrs. Dixon, and the second action was dismissed, and the plaintiffs excepted.

Writ oe Entry, to foreclose a mortgage. Plea, tire general issue and a brief statement, as follows: That tbe action did not accrue witbin twenty years of tbe date of tbe writ; that tbe defendants bad not disseized tbe plaintiff witbin twenty years; that tbe plaintiff was never seized-of tbe premises; payment; accord and satisfaction; that tbe action was not brought witbin two years of the original grant of administration; that tbe plaintiff’s mortgage was subject to a prior…

Case, for personal injuries sustained by tbe plaintiff while in or the plain-the superior to the denial a verdict m the defendants’ employ. Trial by jury and verdict tiff.

Bill in Equity, for a construction of the will o‘f Lydia W. Ladd, of which the parties are all executors, and for instructions as to its execution. Transferred from the April teim, 1907, of the superior court by Pike, J. The testatrix made her will on April 25, 1889, executed a codicil thereto on May 14, 1898, and died on March 1, |1904. She owned a farm, the buildings thereon consisting of a piain house, ell, barn, shed connecting the ell and barn, cornhouse, and woodshed.

Replevin, for a pair of black horses, and Bill in Equity, to enforce a lien on the same horses created by a mortgage given to the plaintiffs in August, 1905, by the T. E. Wilson Company, a corporation doing business at Kittery, Maine. Trial by the court and verdict for the defendant, to which the plaintiffs excepted.

Bill in Equity, to set aside a contract made by Isaac D. Merrill with the defendant, his niece, and to compel the restitution of property transferred thereunder by him to her, upon the ground of his insanity and of her undue influence over him.

Case, for negligence. Trial by jury and verdict for the plaintiff. Transferred from the October term, 1906, of the superior-court by Wallace, C. J., on the defendants’ exceptions to the denial of motions for a nonsuit and the direction of a verdict in their favor.

Trespass, for assault. Defence, justification on the ground of self-defence against an attack by the plaintiff. Trial by jury and verdict for the defendant. Transferred from the May term, 190T, of the superior court by Peaslee, J. The plaintiff excepted to a refusal to charge the jury as follows: To sustain a plea of self-defence, the defendant must show either that he retreated to avoid the encounter, or that retreat was impossible or was attended with great danger.

Probate Appeals. The cases are those reported in 71 N. H. 538 and in 72 N. H. 444, in which the appellees moved for an allowance of counsel fees and expenses. Transferred from the May term, 1907, of the superior court by Peaslee, J. The appellants are executrices of the estate of John D. Bean, and the property in question was willed to them for life. The remainder was willed to the appellees. Only a part of the latter joined in the employment of counsel.

<p>The objection that evidence adduced by the adverse party is insufficient to warrant a verdict in Ms favor cannot be first interposed after a submission of the case upon its merits, unless the facts presented by the record disclose that the deficiency is incapable of being supplied.</p> <p>Assumpsit. Trial by jury, resulting in a disagreement. Transferred from the May term, 1907, of the superior court by Peas-lea, J. The facts are stated in the opinion.</p>

Assumpsit, to recover $1,000 alleged to be due upon a benefit certificate issued by tbe defendants to Alfred Dusseault, Transferred from the May term, 1907, of the superior court by Peas-lee, J., upon an agreed statement of facts. The defendant corporation is a mutual benefit and fraternal order. Under the constitution in force in 1899, its membership was limited to French-Canadian Catholics between eighteen and fifty years of age at the date of initiation.

<p>In an action to determine the location of a boundary line, evidence of the grantor’s acts and declarations prior to the conveyance is not admissible, if its effect is to change the terms of the deed and not to remove a latent ambiguity therein.</p> <p>Trespass quare clausum. Trial by the court and verdict for the plaintiff. Transferred from the May term, 1907, of the superior court by Pihe, J.</p> <p>The controversy relates to the location of the dividing line between the plaintiff’s land on the north and the defendants’ land on the south. One Hutchins formerly owned both tracts, and in 1893 conveyed to the plaintiff the northerly tract by a deed describing it in part as follows: Beginning at a certain point in a certain highway — the same being in the line of Herbert’s farm — “and following the middle of said highway south about fifty rods to a point about two rods from a white pine tree, about two feet through, stand east of the said point in the highway and running about east from said tree over or near a large boulder stone; and thence to a pine tree, marked, on the bank of the pond; thence north on said pond to said John Herbert’s land; thence west on said land to the bounds begun at. The pine tree is the south one on the bank of the pond, and is marked with a cut on the west side and on the north side.” The defendant Steele acquired title to the southerly tract from Hutchins’ estate in 1905.</p> <p>The parties agree as to the location of the starting point of the southerly line of the tract conveyed to Herbert. A line running from this point south forty-two degrees east passes within three or four feet of the southerly end of a boulder which is five or six times larger than any stone on or near the disputed tract, to a pine tree on the bank of the pond, marked with a cut on the west and north sides, and being the southerly pine of those in the vicinity. The cuts on this pine were probably made about 1893. The plaintiff claims to this line. The defendants claim to a line running from the starting point south sixty-seven degrees east. This line .passes over “ a large boulder stone ” one fifth or one sixth as large as the one above mentioned, to a pine on the bank of the pond, being the southerly one of two standing in the immediate vicinity, but not the southerly one of those in the locality. There is a mark upon the west side of this tree and another upon the east side, made perhaps not more than four or five years ago by cutting the bark half way through. There is no mark on the north side. There are several marked birches and small trees on this line. Two small birches near the pine are marked on the sides toward it, they being near an old lumber road running north and south, built eighteen or twenty years ago and having blazed trees upon its side. The distance between the pines at the easterly ends of the two lines is eight rods; and the controversy is as to the title of the triangular tract between the two lines. It was found that the first line above mentioned is the one described in the plaintiff’s deed, and that no other line answers the description sufficiently to render the description ambiguous.</p> <p>The defendants excepted to the exclusion of proffered testimony, that just before the deed was made Hutchins and the scrivener went upon the land with a view of determining where the southerly line should be, that Hutchins marked the trees on the last mentioned line and declared that the land to be sold to the plaintiff was to be bounded by this line, and that they returned to Hutchins’ house, where the deed was written.</p>

Foreign Attachment. Trial by the court. Transferred from the December term, 1906, of the superior court by Stone, J., on the defendant’s exception to an order charging the trustee. Walter C. Burbank, the trustee, is a resident of New York and, the owner of a farm in Shelburne which he occupies a portion of each year.

Assumpsit. Five actions, in which the plaintiff, an approved school within the meaning of section 4, chapter 96, Laws 1901, seeks to recover in each suit the tuition of one child for the school year of 1903-04. The defendants in each case are the school district in which the pupil lived with his father, the father, and the child.

<p>The jurisdiction of the court to advise an executor as to his duties will not be exercised during the pendency of proceedings in the probate court for a re-examination of the will.</p>

PitoiiATE Appeal, from a decree allowing the plaintiff’s first account as administrator de bonis non of the estate of Henry Holton, both in this state and in Massachusetts.

<p>Probate Appeal, from the allowance of the will of Hannah Stevens. Trial by the court. Transferred from the . September term, 1907, of the superior court by Peaslee, J.</p> <p>The appellant assigned the following reason for her appeal: “That the said alleged will was in fact a copy of a will made by said Hannah Stevens and by her believed to be cancelled when she destroyed the copy in her possession, which she supposed and believed to be in fact her last will and testament. That said will —the one in her possession- — was by her destroyed, and she intended and purposed to cancel any and all other wills by that act.” The plaintiff’s motion that the appeal be dismissed because no legal ground was assigned therefor was denied, and she excepted.</p> <p>The appellant was granted leave to amend her reason of appeal by adding the following: “ That said alleged will which is offered for probate was never intended by the testatrix to operate as her will, for that at the time of writing out and executing said alleged will certain words were crossed out and erased, whereupon on, to wit, the same day, a later will identical in substance was duly executed before the same witnesses, which said later will was intended as the only will of said testatrix, who thereafter voluntarily destroyed said later will with the intent to revoke the same; that said alleged will was as a matter of law revoked by the making of a subsequent valid will by said testatrix; that said alleged will was revoked as a matter of fact by the destruction by tearing by said testatrix of said later will, the said later will being as to its contents in substance the same as said alleged will which is now offered for probate.” The plaintiff excepted to the allowance of the amendment. So far as its allowance was a matter of discretion, it was found in favor of the appellant, and was not transferred.</p>

Case, for fiowage. Trial by jury and verdict for the plaintiff. Transferred from the April term, 1907, of the superior court by Wallace, C. J. The defendant’s title is by deeds from the plaintiff’s ancestor, which convey a right to flow by the use of a certain dam. The plaintiff claimed that this gave only a right to reasonably exercise the granted privilege.

Counsel for the parties agreed as follows: (1) If on the foregoing facts the plaintiff can only recover $5 per hundred-weight as damages, she is to have judgment for $120 and costs; (2) if she is not limited to $5 per hundred-weight, she is to have judgment for $300 without costs.

Assumpsit, on a promissory note. Plea, tbe general issue. Trial by tbe court. Transferred, from tbe March term, 19 07, of tbe superior court by Chamberlin, J.

<p>Where there is some evidence tending to establish negligence on the part of the defendant and the likelihood of its causing the injury complained of, the question of its weight is for the jury.</p> <p>The rule that the jury cannot be permitted to determine by conjecture between two equally probable causes of injury, for one only of which the defendant is responsible, has no application unless the existence of a sufficient cause aside from the negligence charged is conceded or conclusively proved.</p> <p>Where an injury complained of is the natural and probable result of the negligence charged, a wrongdoer cannot set up as a defence the bare possibility of loss if his wrongful act had never been done.</p> <p>Cabe, for causing the death of the plaintiff’s intestate by the negligent administration of chloroform. Trial by jury and verdict for the plaintiff. The defendant moved for a nonsuit upon the ground that there was no evidence of the cause of death. The motion was denied, and he excepted. Transferred from the January term, 1907, of the superior court by Peaslee, J.</p>

<p>A tradesman who represents that stove polish sold by him may be safely used upon a hot stove is equally liable to the purchaser or to a member of his family, who is injured by an explosion of the compound.</p> <p>One who purchases stove polish upon the representation that it may be safely used upon a hot stove, and is injured by an explosion of the compound, may maintain an action of deceit against the vendor if the representation was made with knowledge of its falsity, and an action of negligence if the statement, although honestly believed to be true, was made upon insufficient knowledge and without such an investigation as ordinary care demanded.</p> <p>Case, for personal injuries caused by an explosion of stove blacking. The declaration contained a count under sections 26 and 28, chapter 126, Public Statutes, and a count in negligence. A demurrer to the first count was sustained, and the question of the correctness of the ruling was reserved. There was a trial by jury upon the common-law count. At the close of the plaintiff’s evidence a nonsuit was ordered upon the defendants’ motion, and tbe plaintiff excepted. Transferred from tbe September term, 1906, of tbe superior court by Pike, J.</p> <p>The plaintiff’s evidence tended to prove that the manufacturers of a stove blacking advertised it in Nashua, stating that it was for sale by the defendants. The plaintiff’s mother saw the advertisement, called at the defendants’ store, and asked a clerk if the blacking they were advertising was intended for stovepipes or for stoves. He replied that it was intended for stoves, and said that “ the, warmer the stove, the better it works.” She replied, “Won’t that be fine; I can black my stove without letting my fire go out.” Relying upon the representation that the blacking could be safely used on a hot stove, the mother bought a can. Two days later the plaintiff, a member of her mother’s family, used some of the blacking on a hot stove and an explosion resulted, causing the injuries complained of. The plaintiff and her mother were blamelessly ignorant of the fact that the blacking contained naphtha.</p>

Assumpstt, for aid furnished to certain paupers1 from April 2 to June 1, 1907. Transferred from the September term, 1907, of the superior court by Hike, J. For ten years prior to April 1, 1904, Fred Louden resided in Lancaster and paid all poll taxes assessed against him. He moved to Berlin some time in tbe early part of 1904, and bis taxes were abated in Lancaster for that year. In September, 1905, he returned to Lancaster. He died in 1906.

Case, for personal injuries suffered by the plaintiff by having his hand and arm drawn in between the calender rolls of a paper machine, while in the employ of the defendant in its mill at Berlin. Trial by jury a'nd verdict for the plaintiff.

<p>In the determination of an election contest, each branch of the city councils, as well as the city convention, acts in a judicial capacity, and the conclusions reached are final as to matters of fact; the superintending power of the court being limited to the correction of errors of law apparent upon the record, or to requiring action by the body refusing to entertain a contest.</p> <p>Where the allegations of a petition to a board of aldermen present a contest as to an election and make it the duty of the petitionees to determine the controversy, a refusal of the board to hear competent evidence is error, correctible by mandamus directing the board to proceed with a hearing.</p> <p>Whether a claimant of the office of alderman, or the occupant of the seat, was duly elected thereto, is determinable by the decision, upon competent evidence, of the question as to which party received the larger number of legal votes, or for whom the larger number of legal votes were intended; and this is a question of fact for the statutory tribunal, whose decision is not correctible by the court.</p> <p>A petition for a writ of certiorari, brought for the purpose of reviewing the action of a board of aldermen in an election contest, presents no question for the consideration of the court when it appears that the plaintiff has expressly waived any claim based upon a denial by the board of opportunity for a full trial before it.</p>

Petition, for the extension of an order made upon a decree of nullity of marriage.

Case, for negligence. Trial by jury and verdict for the plaintiff. Transferred from the April term, 1907, of the superior court by Chamberlin, J., on the defendant’s exception to the denial of a motion for the direction of a verdict in his favor. The evidence tended to prove the following facts: The plaintiff was sixteen years old at the time of his injury, and was not so quick of comprehension as the ordinary boy of that age.

<p>Petition for certiorari, to the common council of Nashua. At the September term, 1907, of the superior court, the defendants’ demurrer was overruled by Peaslee, J., subject to exception.</p> <p>The petition contains the following allegations: At the biennial election in 1906, the plaintiff and Peter Bruen were candidates for the office of councilman from Ward 5, Nashua. More votes were cast for the plaintiff than for Bruen, but the moderator of the meeting declared the latter elected. On January 1, 1907, Bruen qualified as a member of the council, and on the same day the plaintiff petitioned the council to determine his right to the seat to which Bruen had been admitted. The petition was referred to a committee of three councilmen to investigate the election, count the ballots, and determine whether the plaintiff or Bruen was elected. The plaintiff and Bruen appeared before the committee with counsel. A majority of the committee refused to count all the ballots, reported to the council that of the votes cast Bruen was entitled to 101 and the plaintiff to 100, and recommended that the plaintiff be given leave to withdraw. A minority of the committee reported that of the votes cast the plaintiff received 108 and Bruen 100, stating in the report that the majority had refused to proceed with the count of the ballots and had voted to accept the declaration of the moderator as a correct statement of the vote, and recommended that the plaintiff be declared entitled to the seat. Both reports were presented to the council, and a motion to substitute the minority for the majority report was defeated, seven members voting in the affirmative and ten in the negative. By a vote of ten to seven, the majority report was accepted and adopted, and the plaintiff was thereby deprived of his seat. Bruen voted upon each motion with the majority. Each member of the council knew that the count of the ballots showed that the plaintiff had received 103 votes and Bruen 100.</p>

Case, for negligence. Transferred from the May term, 1907, of the superior court by Peaslee, J. The declaration alleged that the defendant so negligently managed an automobile and ran the same at such excessive speed, “ that by reason thereof said auto-bile was propelled with great force upon and against the carriage in which said plaintiff was riding, crushing and wrecking said carriage and hurling said plaintiff, who was then pregnant, from her seat in said carriage to the…

Bill oe Interpleader, against the heirs, the. administrator, and the designated beneficiary of Henry L. McKean. Transferred from the September term, 1907, of the superior court, by Peaslee, J.

Case, for obstructing a private way. Transferred from the May term, 1907, of the superior court by Stone, J., upon an agreed statement of facts. The plaintiff city and the defendants derive title from the Amoskeag Manufacturing Company.

Case, for negligence. Trial by jury and verdict for the plaintiff. Transferred from the January term, 1907, of the superior court by -Stone, J., on the defendants’ exception to the denial of their motion for a nonsuit. The plaintiff’s evidence tended to prove the following facts: She was injured Monday forenoon, that being the first day of her employment by the defendants.

<p>Writ oe Entry. Fapts agreed. Transferred from the January term, 1907, of the superior court by Pike, J.</p>

<p>Debt, on two liqnor license bonds. Trial at the October term, 1907, of the superior court before Wallace, C. J., who found verdicts for the state, to which the defendants excepted upon the ground that the liquor license law of the state is unconstitutional.</p>

<p>Case, for personal injuries alleged to have been caused by the negligence of the defendants, by whom the plaintiff was employed. Trial by jury and verdict for the plaintiff. The defendants’' motions for a nonsuit and the direction of a verdict in their favor, on the ground that there was no evidence to support a finding of their negligence, were denied subject to exception. Transferred from the September term, 1907, of the superior court by Peaslee, J-</p> <p>The evidence tended to prove the following facts: In the defendants’ weave room was a shaft supported by a hanger. The hanger was provided with an oil-cup, and also with a device for attaching a drip-cup by means of which the dropping of oil upon the floor might be prevented; but no drip-cup was attached to the hanger, and. when too much oil was poured into the oil-cup any surplus dropped upon the floor. When the machinery was not in motion the oil settled in the cup, and any surplus ran out at the end of the shaft. During Saturday forenoon prior to the plaintiff’s injury, the oil-cup was filled by an employee who used an oil-can attached to the end of a stick. The machinery was idle from Saturday noon until Monday morning. About eleven o’clock Monday forenoon the plaintiff slipped upon an accumulation of oil on the floor, fell, and received the injuries complained of. Previously a small amount of oil had been seen to fall a drop at a time from the shaft, until it covered a space upon the floor about half an inch in diameter.</p>

Probate Appeal. Facts found by the court. Transferred without a ruling from the September term, 1907, of the superior court by Peaslee, J. Susan E. Reed, a resident of Nashua, died September 21, 1905, and the defendants were appointed executors of her will.

Petition, for advice as to the validity of the residuary clause of the will of Emeline R. Balch, and in particular requesting information as to whether the trust fund there provided for should be used for maintaining a hospital for general use, or whether the trustees should apply the fund to establish and maintain a hospital for a special use, and if so for what use.

<p>Petition, for the abatement of taxes assessed upon the plaintiff’s steamboats in 1907. Transferred without ruling from the November term, 1907, of the superior court by Chamberlin, J., upon an agreed statement of facts.</p> <p>The plaintiff is a corporation, organized under the General Laws in 1886. The articles of agreement, recorded in the office of the secretary of state and of the city clerk of Concord, provide as follows:</p> <p>“ 2. The place in which its business shall be carried on shall be Concord, New Hampshire.</p> <p>“ 3. The object for which this corporation is established is for the purpose of building a steam vessel or vessels, equipping the same, and performing everything necessary for the navigation of the waters of Sunapee lake, in New Hampshire, for the purpose of carrying and transporting passengers, express, freight, and mail matter on said lake.”</p> <p>The corporation owns and operates boats, valued at over $100, on Sunapee lake. The lake is situated in Sunapee, Newbury, and New London, and the plaintiff owns real estate in each of those towns. About one half the plaintiff’s business is done in Sunapee, and the rest in Newbury and New" London. Its boats start from Sunapee in the morning and return at night. When not in use they are kept in Sunapee, summer and winter, except that one small boat is usually kept in Newbury during the winter. The general manager, clerk, and treasurer of the corporation reside and have their offices in Concord. The annual meeting of the corporation is held in that city, and the books and records of the corporation are kept there.</p> <p>In 1907, the plaintiff was advised that its boats were taxable in Concord, and thereupon returned them for taxation and was taxed for them in that city. The defendants also taxed the boats to the plaintiff, and upon a refusal of the selectmeo to abate the tax this appeal was taken.</p>

Case, for burning tbe plaintiff’s buildings situated near tbe defendants’ tracks in Milton. There was a trial by jury, resulting in a disagreement. The defendants moved for a nonsuit and for the direction of a verdict in their favor, and excepted to the denial of both motions. Transferred from the February term, 1907, of the superior court by Wallace, C. J.

Case, for personal injuries. Trial by jury and verdict for tbe plaintiff. Transferred from tbe September term, 1907, of tbe superior court by Stone, J. There was evidence that tbe plaintiff employed physicians to treat her for tbe injuries, and of tbe nature and extent of tbe treatment, but none as to tbe value or cost of tbe services.

Petition, for mandamus to compel the defendants, as selectmen of Allenstown, to take farther action on the plaintiffs’ applications for licenses to deal in old junk. The defendants refused to grant* the licenses. Transferred without a ruling from the October term, 1907, of the superior court by Pike, J., upon an agreed statement of facts.

Assumpsit, to recover a claim for personal services and. expenses. Transferred from the October term, 1907, of the superior court by Pike, J., upon an agreed statement of facts.

<p>Probate Appeal. Transferred from the September term,, 1907, of the superior court by Peaslee, J.</p>

Foreign Attachment. The defendants were defaulted. The issue of the trustee’s chargeability was tried before Peaslee, J., at the September term, 1907, of the superior court. The trustee was discharged, and the plaintiffs excepted. February 15, 1905, the defendants leased to the trustee for the term of three years a tract of land, part of which they leased from the Boston & Maine Bailroad. Their lease expired June 1, 1905, and was not renewed.

Habeas Corpus. The petitioner, having been duly convicted before a justice of the peace for the county of the offence of drunkenness in a public place, was sentenced by the justice to confinement in the county jail for tbe term of four months. The ground of his application for discharge was the claim that the sentence of confinement for four months was in excess of the jurisdiction which could be conferred upon a justice of the peace under the constitution.

Trespass guare clausum. Plea, the general issue, with a brief statement that the defendant was licensed by the selectmen of Newport to erect and maintain poles and wires on Summer street in that town, and that the alleged trespass consisted of acts legalized by the license. Trial by the court and verdict for the plaintiff.

Assumpsit, for taxes assessed against the defendants. Transferred from the November term, 1905, of the superior court by Chamberlin, J., upon an agreed statement of facts.

Petition, for contribution toward the expense of repairing a bridge in Bridgewater. Trial at the November term, 1907, of the superior court before Pike, J., who decreed that the petition be dismissed as to Ilolderness and apportioned the expense of repairing the bridge as follows: Fifty per cent to Ashland, twenty-five per cent to Bridgewrater, fifteen per cent to Plymouth, and ten per cent to Grafton county. To this decree Grafton county excepted.

Assumpsit, to enforce a mechanic’s lien. The owner of the premises upon which the labor was performed died insolvent before this suit was brought. The defendants are his heirs, administrator, and widow. The plaintiffs moved for judgment, and the defendants to dismiss; and the questions of law raised by these motions were transferred without a ruling from the December term, 1907, of the superior court by Chamberlin, J., upon an agreed statement of facts.

Petition for certiorari, to which the defendants demurred. Transferred from the November term, 1907, of the superior court by Stone, J., without a ruling.

Case, to recover for injuries resulting in the death of Philip Gaudette, the plaintiff’s intestate, who accidentally fell into a vat of hot alkaline solution while at work in the defendants’ repair yard at Keene. The defendants’ motion for a nonsuit was granted, and the plaintiff excepted. Transferred from the October term, 1905, of the superior court by Peaslee, J.

<p>Assumpsit, upon a bank check. Transferred from the November term, 1905, of the superior court by Chamberlin, J.</p>

Appeal, by citizens and taxpayers of Keene, from the laying out of a highway by the mayor and aldermen, and Bill in Equity, brought by the city and a landowner interested in the laying out, praying that the appeal be dismissed and the appellants enjoined from its further prosecution. At a hearing before Peaslee, J., at the October term, 1906, of the superior court, a decree was ordered for the city, and the appellants excepted.

Case, for negligence causing personal injuries. Trial by jury and verdict for the plaintiff. Transferred from tbe November term, 1906, of the superior court by Peaslee, J. This is the same case which was before the court in 73 N. H. 516. The plaintiff’s evidence was substantially the same as that introduced at the former trial, together with the evidence then offered and excluded, but held to be competent by the former decision.

<p>Bill in Equity. Transferred from the April term, 1907, of the superior court by Stone, J., upon an agreed statement of facts.</p>

Assumpsit. Facts agreed. Transferred from the February term, 1907, of tbe superior court by Wallace, C. J. The county seeks to recover the sum of $496 as money paid out for board of prisoners sentenced to the county house of correction from the Dover police court, upon complaints charging offences under section 21, chapter 264, Public Statutes, none of which was for drunkenness.

Petition for Partition. The defendants claimed title to the premises by deed and by prescription. Upon trial by the court a verdict was found for the defendants upon each issue, and the plaintiffs excepted. Transferred from the April term, 1907, of the superior court by Wallace, C. J.

Bill in Equity, to redeem from a mortgage given by the plaintiff to Morrison, the defendant Bartlett’s intestate. The condition of the mortgage is that it shall be void if Shnte pays the taxes on the property and the sum of $15 per month to Morrison during life, and keeps the buildings in repair and insured for Morrison’s benefit.

Bill in Equity, for the construction of the following paragraph in the will of Mary N. Cross: “Second.

Assumpsit, for the price agreed to be paid for an assignment of the plaintiff’s claim against one Levine. Trial by jury and verdict for the plaintiff. Transferred from the April term, 1907, of the superior court by Stone, J. The defendants Samuel and Julia Finkelstein are partners, and the contract sued upon was made by Julia. A motion for a non-suit as to Samuel was denied, subject to exception.

<p>The statute directing the governor to provide by contract for the railroad transportation of certain public officers imposes upon him a duty pertaining to the iiscal administration of the government, as to the performance of which the governor and council may reqnire the opinions of the justices of the court.</p> <p>The phraseology of an act is to receive a natural and reasonable construction, in the absence of proof that it was employed in a restricted or peculiar sense.</p> <p>Under chapter 79, Laws 1907, the governor is required to provide for the railroad transportation of the justices of the supreme and superior courts, the bank commissioners, the superintendent of public instruction, the fish and game commissioners, and the commissioner of labor.</p>