Volume 75 — New Hampshire Reports

Libel eor Divorce, filed September 18,1907, alleging extreme cruelty and treatment seriously injuring health. The defendant appeared specially, filed a plea to the jurisdiction of the court, and entered-a motion to dismiss the libel for want of jurisdiction. At the November term, 1907, of the superior court, Stone, J., took jurisdiction of the cause and denied the motion, subject to the defendant’s exception.

Petition, for assessment of damages under the flowage act. Transferred from the March term, 1907, of the superior court by Stone, J. The plaintiff owns a farm bordering on the Pemigewasset river, which the defendants overflowed by means of a dam built in 1902 and 1903 on their land further down the stream. They made no settlement with the plaintiff, and in March, 1905, she brought an action at law for damages.

<p>Petition for habeas corpus, and Bill in Equity for discovery. Facts found by the court. Transferred from the June term, 1907, of the superior court by Chamberlin, J.</p> <p>Snow, the petitioner in the habeas corpus proceeding and one of the defendants in the second action, is an attorney, and was employed by the other defendants to contest the will of William Randall. When the will was proved in solemn form, Snow liad his stenographer take the testimony of the witnesses to the will. The plaintiffs’ counsel took no minutes of the testimony, thinking they could procure a copy from Snow if one was needed. Some time after the hearing they tried to procure a copy, but Snow refused to furnish it. They then took his deposition. The summons required him to produce a copy of the testimony of the witnesses to the will, but he refused to comply and was committed for contempt. The plaintiffs then brought the proceeding for discovery, making Snow and his clients defendants, and alleging that the plaintiffs’ case could not be prepared for trial without the copy of the testimony in question. The only evidence to sustain that allegation was the testimony of one of the plaintiffs’ attorneys. The court discharged Snow on habeas corpus and dismissed the bill in equity, and the plaintiffs excepted.</p>

Petition, for a new trial of the action between the same parties, reported 74 N. H. 4. Transferred from the. September term, 1907, of the superior court by Eeaslee, J., upon exception to the denial of the petition. The plaintiff was not in fault for the non-production of the evidence, the want of which vitiated the former verdict in his favor. This evidence can be supplied, and in such case it is likely a jury will find a verdict for the plaintiff sustainable upon the law.

Bill in Equity, by the executors of the will of Julia Beatrice Thayer, asking for a construction of the will and advice as to the duty of the executors. Transferred from the October term, 1907, of the superior court by Chamberlin, J. The questions submitted are stated in the opinion.

Bill in Equity, filed. August, 1907, to redeem from two mortgages. Facts found by the court. Transferred from the December term, 1907, of the superior court by Wallace, C. J. The plaintiffs are the children and heirs-at-law of Annie and Thomas Gorman.

There was no insulator on the running cable at the time of the accident, but one had been put on before the trial. A view was had, subject to the defendant’s exception. The jury were instructed that changes at the pole were irrelevant and should not be regarded by them.

Informations, alleging that the defendants are violating the provisions of chapter 112, Laws 1907. Transferred from the November term, 1907, of the superior court by Chamberlin, J. The cases are substantially alike, and the facts stated in the first case may be deemed to apply to the others. The defendant’s demurrer to the information, on the ground that the statute did not apply to national banks, was overruled subject to exception.

<p>A party who procures an instruction which expressly excludes the consideration of incompetent evidence thereby waives his exception to its admission.</p> <p>A defendant in a writ of entry who relies upon his adverse possession of the premises is not entitled to a verdict upon the mere finding that he has never recognized the plaintiff’s title.</p>

Assumpsit, to recover for coal sold to the defendants. Trial by jury and verdict for the plaintiff. Transferred from the November term, 19 06, of the superior court by Peaslee, J. The defendants bought the coal in November, 1903, being then partners under the firm name of the Laconia Dye Works. Soon afterward a corporation was formed, known as the Laconia Dye Works Company, which took over all the partnership property and agreed to pay all the firm’s debts.

<p>Where complete execution of a contract for the installation of a heating plant, has been rendered impossible without fault of either party, the contractor is entitled to compensation for labor performed and materials furnished, if both parties understood that the portions of the apparatus put in place in accordance with the contract were affixed to the realty and became the-property of the owner thereof.</p> <p>A prevailing plaintiff in an action of assumpsit is in any event entitled to-interest from the date of the writ, although his claim was for unliquidated, damages.</p> <p>Assumpsit, to recover for labor performed and materials furnished under a contract for the installation of a heating plant in the defendant’s dwelling-house. Trial by jury and verdict for the plaintiff for $512.38. Transferred from the November term, 1907,. of the superior court by Stone, J.</p> <p>The plaintiff contracted with the defendant to put into the latter’s house a heating apparatus, consisting of a boiler, radiators, piping, and other appliances and fixtures, and the defendant agreed to pay $587.90 upon the completion of the work. When the-plaintiff had affixed to the realty materials of the value of $466.38, by an expenditure of labor amounting to $46.80, the building and its contents were destroyed by fire.</p> <p>The defendant excepted to the denial of his motions for a non-suit and the direction of a verdict in his favor, and to the refusal of the court to give certain requested instructions. The defendant objected to an allowance of interest, on the ground that the-action was for unliquidated damages. A verdict having been returned for the amount of the plaintiff’s damages, it was agreed, that interest should be computed thereon from the date of the writ, or from the date of judgment, in accordance with the decision of the supreme court.</p>

Case, for negligently causing death. Trial by jury and verdict for the plaintiff. Transferred from the October term, 1906, of the superior court by Wallace, C. J. The plaintiff’s evidence tended to prove the following facts: The defendants’ tracks at South Danbury run nearly north and south.

<p>One engaged in the business of buying junk with the intention of selling it is a ‘1 dealer ’ ’ therein, within the meaning of section 4, chapter 124, Public Statutes.</p>

Quantum Mebuit, to recover compensation under a special contract for moving a tliree-story frame building in Franklin. Trial by jury and verdict for the plaintiff. Transferred from the October term, 1907, of the superior court by Pike, J. The work was mainly done under charge of the plaintiff’s foreman, and covered a period of twenty days.

Case, for personal injuries. Trial by jury and verdict for the plaintiff. Transferred from the October term, 1907, of the superior court by Pike, J. ■ The plaintiff was injured while at work as a car repairer in the defendants’ shops at Concord. At the time of the accident he was sixty-two years old and had been employed by the defendants for six years.

<p>The word “man,” as used in section 15, chapter 278, Public Statutes, is not limited to adults, but includes persons of the male sex who have arrived at the age of puberty, or are capable of committing rape.</p> <p>In an indictment for rape upon a woman child, the allegation as to age is sufficiently definite if it gives positive information as to the child’s years and shows that she was below the age of consent.</p> <p>A respondent in a proceeding brought in the superior court under the criminal law of the state is not entitled to be tried under the provisions of the juvenile court act (Laws 1907, c. 125), upon the ground that he is a minor under the age of seventeen years.</p> <p>A remark in argument by a prosecuting attorney, that sentence of imprisonment would be unlikely to follow a conviction of the respondent, is but an erroneous statement of law, the prejudicial effect of which is neutralized by an instruction to the jury that it should be disregarded.</p> <p>Indictment, charging the respondent with committing rape upon a woman child eleven years old. Trial by jury and verdict of guilty. Transferred from the October term, 1907, of the superior court by Stone, J. Tbe questions raised by tlie respondent’s exceptions are stated in the opinion.</p>

Case, for negligence. Trial by jury and verdict for the plaintiff. Transferred from the November term, 1907, of the superior court by Pike, J., on an exception to the denial of a motion for a nonsuit. The facts appear in the opinion.

<p>Case, for negligence. Transferred from the September term, 1907, of the superior court by Pike, J., on the plaintiff’s exception to an order of nonsuit.</p> <p>The plaintiff’s evidence tended to support the following facts: The plaintiff was employed by the defendants, and his work required him to unload pulp-wood from ears which had been switched onto a track running into one of the mills. He had been employed in this way for about three months, the business requiring the unloading of some fifteen cars each day. The loaded cars were left on the track some "distance above the mill, and it was the business of the workmen to take them down the track to the mill. The track had a grade, and the cars when left by the engine ■were usually held iu position by a trig placed under the wheels and by having the brake set. When a car was to be moved down, one man would go to the brake upon the car and rvhen he was ready notify a man on the ground to kick out the trig. If the brake was in working order, the brakeman could control the movement of the car and stop it at a place called the carrier, where it Avould be partly unloaded, and then taken farther doAvn to a place called the tank, where the unloading would be completed. There ivere two gangs, consisting of three or four men each. One gang took the cars standing on the track down to the carrier and unloaded a part of the rvood, and the other gang, when they had ■unloaded a car at the tank and sent it away, came up the track to the carrier to take the car standing there down to the tank. This was a signal to the carrier men to start up the track to bring down another car. A few times during the plaintiff’s employment he had seen cars come down which could not be stopped at the carrier. He also knew that the brakes Avould not always work satisfactorily, and that if they did not, a loaded car was liable to run by the carrier and strike the car at the tank with more or less force.</p> <p>On the morning of the accident the plaintiff was employed at the tank. After the men had unloaded the car, the plaintiff went up to the carrier to take the car standing there down to the tank, and the men at the carrier thereupon went up the track to bring down a fully loaded car. The plaintiff saw them go away and knew what they were going for. He saw two of them sanding the track, and two others, Ellis and Clouthier, going ahead toward the car. In the meantime he got upon the car at the carrier and by working the brake was taking it down to the tank, when the other car came down with no one in control of it and collided with the car he was upon. The impact threw him off and he was injured thereby. After the accident an examination showed that the “ catch ” on the brake would not hold. There was no other evidence of its condition before the accident.</p> <p>When Ellis and Clouthier reached the fully loaded car, an engine, which was sometimes used in taking cars down, was standing on another track. Ellis, who was not within sight of Clouthier, motioned and shouted to the switchman on the engine to attract his attention, and thereupon Clouthier kicked out the trig and the car started, with no one at the brake. Clouthier did not testify. The defendant had established no special rules for doing this work.</p>

<p>An answer in a deposition inconsistent with subsequent testimony of the witness is not evidence of the facts therein asserted, and is admissible only for the purpose of contradiction.</p> <p>The owner or possessor of land is not liable to trespassers for injuries caused by a dangerous condition of the premises negligently created prior to their . entry, but for such only as are intentionally inflicted, or result from his active intervention.</p> <p>In an action to recover for death caused by an explosion of dynamite, certain evidence deemed sufficient to warrant a submission to the jury of the questions whether the decedent was upon the defendant’s promises as an implied invitee, and whether his act which caused the explosion was a trespass, or negligent, or a reasonable and lawful enjoyment of a visitor’s privilege, in view of the surrounding circumstances.</p> <p>Case, for negligently killing tlie plaintiff’s intestate, a boy fourteen years old. Trial by jury and verdict for tlie plaintiff. Transferred from the April term, 1907, of the superior court bj Pike, J., on the defendant’s exceptions to the denial of its motions for a nonsuit and that a verdict be directed for it upon each issue tried.</p> <p>The case is that heretofore reported (74 N. H. 116), and was submitted to the jury upon two issues as to the defendant’s negligence : (1) That it carelessly put the dynamite near the camp door after it knew the plaintiff’s intestate was on the premises; (2) that, having reasonable grounds to apprehend that trespassers would thereafter come upon the premises, it created an unnecessary and extraordinary hazard, not required for the reasonable prosecution of its business. It also appeared that it was as probable that the boy exploded tlie dynamite by intentionally striking it, as by accidental^7 coming in contact with it.</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 October term, 1907, of the superior court by Wallace, C. J. The plaintiff’s evidence tended to prove the following facts: The plaintiff is a carpenter and was employed to assist in moving a small house through the streets of Portsmouth by one Ham, who had a permit for the work from the city authorities.

Petition, for mandamus. Facts agreed. Transferred from the October term, 1907, of the superior court by Bike, J. The plaintiffs are the trustees of the state library, and the defendants constitute the public printing commission.

Petition, for achdee as to the execution of the avüI of Jonathan Spaulding.

Debt, upon a judgment. Pacts found by the court. Tbe defendant appeared and was subsequently defaulted. The only controversy is as to tbe liability of the New York Life Insurance Company as trustee; and that question was transferred without a ruling by Plummer, J., from the January term, 1908, of tbe superior court. The trustee was summoned by service upon the insurance commissioner, November 5, 1906, and at that date was not indebted to tbe defendant.

<p>Case, for negligence. Trial by jury and verdict for the plaintiff. Transferred from the January term, 1908, of the superior court by Plummer, J., on the defendants’ exceptions to the denial of their motions for a nonsuit and the direction of a verdict in their favor.</p> <p>The evidence tended to prove the following facts: The plaintiff was injured on December 26, 1905, in the defendants’ finishing room where she was employed. She was intelligent, thirty-seven years old, and had been employed in the same room for eighteen months prior to the accident, during which period she had worked in the room 873 full days. About forty-five people worked in the room, which was 108 feet long and seventy feet wide. The room contained no machinery, but was equipped with rows of tables with passageways between them. Bolts of cloth were brought into the room on trucks and unloaded on the tables, where they were banded and papered, the latter operation consisting in wrapping them in paper to protect the cloth from dust. The cloth was then reloaded upon the trucks and removed. All the work was done in an orderly and systematic manner. There were places in the room to which the trucks were removed when empty. Trucks were used all about the room, but when empty they were not permitted to remain in the passageways. The rule required them to be removed to the place reserved for them, and it was not customary to leave them elsewhere. The room was lighted solely by incandescent electric lamps. On the day of the plaintiff’s injury the light was turned on between two and three o’clock in the afternoon and was extinguished about twenty minutes before six o’clock by the melting of a fuse near the dynamo. The lamps on such a system are liable to be extinguished in this way, and these lights had failed twice before during the fall months. Such systems are in common use. The fuse is a safety device universally employed. When the location of a melted fuse is known, a new one can be substituted in a few minutes. The defendants had an available supply of fuses to replace any which might melt, and an employee whose duty it was to make the repair. There was no evidence of defect in the lighting system. The plaintiff was a paperer. After the lights failed she remained at her table and papered a bolt of cloth. Thinking she would have time to go to the water closet, she started across the room for that purpose, and was proceeding through one of the passageways when she fell over a truck and received the injuries for which she seeks to-recover.</p>

Case, for negligently causing the death of the plaintiff’s intestate. Trial by jury and verdict for the plaintiff. Transferred from the January term, 1908, of the superior court by Plummer, J. David W. Lane, the plaintiff’s intestate, was fourteen and a half years old at the time of his death, and had worked in the defendants’ finishing room as a patter-boy for about seven months.

Petition, for instructions as to the distribution of the assets of the Security Trust Company. At the January term, 1908, of the superior court, Stone, J., found the facts and transferred the following questions: (1) How shall the funds be distributed? (2) How shall the expenses of administration be apportioned? The Security Trust Company was incorporated in 1889 (Laws 1889, c. 175) and was authorized, among other things, to do a general banking and a savings bank business.

<p>An employer is not liable for injuries occasioned to a third person by the negligence of his servant while the latter, although using the instrumentalities of the master, is engaged for his own purposes in some act beyond the scope of his employment.</p> <p>Case, for personal injuries. Trial by jury. A nonsuit was ordered at the close of the plaintiff’s evidence, and he excepted. Transferred from the January term, 1908, of the superior court by Chamberlin, J. The evidence tended to prove that one of a pair of horses which the plaintiff was driving upon a highway was struck by an automobile owned by the defendant and operated at the time by one McCauley, and that the plaintiff' was injured by being thrown from his wagon as a result of the collision.</p>

Assumpsit, brought by one Carroll in his own right and as assignee of the claim of McGregor, to recover (1) for cutting wood and timber from a farm in Franklin before September, 1905, and (2) for like cutting after that date. Transferred from the January term, 1908, of the superior court by Chamberlin, J., on the plaintiff’s exception to an order of nonsuit.

Writ or Entry, to recover possession of a tract of land in Walpole. Plea, tbe general issue. Trial by jury and verdict for tbe defendants. Transferred from tbe October term, 1907, of tbe superior court by Chamberlin, J.

Indictment, for selling one gallon of malt liquor to a minor. The defendants moved to quash the indictment, and the questions of law raised by the motion were transferred by Pike, J., from the March term, 1908, of the superior court.

Case, for personal injuries. Trial by jury and verdict for the defendants. Transferred from the December term, 1907, of the superior court by Chamberlin, J. The plaintiff’s evidence tended to prove the following facts: Thomas. Gorman, the plaintiff’s intestate, was employed by the defendants in their pulp mill, and worked upon what were known as the high screens.

<p>One wlio is ejected from a railroad train for non-payment of fare, at a place other than a passenger station, cannot recover of the corporation for damages thereafter suffered by reason of continuing his journey on foot, unless the injury complained of proximately resulted from the defendant’s failure to furnish reasonable station facilities.</p> <p>Case, for ejecting the plaintiff from a passenger train at a place other than a passenger station, for non-payment of fare. Trial by jury and verdict for the plaintiff. Transferred from the December 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 its favor.</p> <p>The plaintiff was ejected from the train for non-payment of fare, at a point about half a mile from the Groveton station and five miles from his home in Stark. The train did not stop at Stark, and there was no other train to that place for almost two days. The plaintiff had but little money, was in good health and well clothed, and walked home to Stark. He stopped to rest several times on the way and in so doing contracted the illness for which damages were claimed.</p>

Assumpsit, to recover money received by the defendant Cbase and paid over to the defendant town of Seabrook under the following circumstances: Chase is a justice of tbe peace residing in Seabrook, before wbom certain persons have been arraigned for operating automobiles upon public highways in that town at a speed greater than is permitted by section 8, chapter 86, Laws 1905.

Trespass quare clausum. Plea, the general issue, title to the locus, and res judicata. Trial by jury and verdict for the plaintiff. Transferred from the October term, 1907, of the superior court by Chamberlin, J. In February, 1902, the plaintiff loaned $500 to Alice M. Bean and took a warranty deed of the locus as security therefor. The understanding between the parties was that the plaintiff should reconvey upon payment of the loan.

Bill in Equity, for a further construction of the will of Emerson Furber. Transferred from the September term, 1907, of the superior court by Stone, J. The will is that considered in Demeritt v. Young, 72 N. H. 202. It now appears that the income of the estate is insufficient to enable the trustee to care for the testator’s son Frank.

Assumpsit, upon two promissory notes given by tire defendant’s testator to the plaintiff’s testatrix. Transferred from the June term, 1908, of the superior court by Chamberlin, A ■, on the defendant’s exceptions to the denial of motions for a nonsuit and the direction of a verdict in his favor. Facts agreed. Jacob H. Cook died November 26, 1904, and the defendant was appointed executor of his estate January 3, 1905.

Petition, for tax abatement. Transferred from the April term, 1908, of the superior court by Wallace, C. J., upon an agreed statement of facts. April 1, 1907, the defendants assessed against the plaintiff a tax of $9.50 upon a steam derrick which was then in that town for a temporary purpose, being used there in the erection of a mill. On that date and for more than twenty years previously the plaintiff had his residence and domicile in Franklin.

. The evidence tended to show that the paper offered for probate was executed as a will by Hannah Stevens, September 14, 1899. Before it was signed and witnessed a line was crossed out. Shortly thereafter a second draft, identical with the first draft except for the erasure, was executed before the same witnesses at the request of the attorney who drew the will, because he did not wish a paper prepared by him to go to probate in the condition of the first draft.

<p>In an action against a municipality for damages resulting from the negligent construction and management of a sewer, a general verdict for the plaintiff cannot he sustained when it appears from special facts found that the defendants did not maintain the culvert in question as a common sewer, and had no knowledge it was so used.</p> <p>Case, for negligence in the construction and maintenance of a common sewer, whereby the plaintiff’s cellar connected therewith was flooded and his property therein damaged and destroyed. •Transferred from the April term, 1908, of the superior court by Plummer, J., upon an agreed statement of facts.</p> <p>In March, 1906, the plaintiff purchased a house and lot on Park street in Berlin. At that time a stream of water flowed across the rear of the lot in a covered stone culvert which connected with a tile drain on the southerly side of the premises. About ten years before, "the city in building a street diverted the stream so as to cross this lot. About three years later the culvert was built by the city and afterward it was continued by the tile drain. At the upper end of the culvert an iron gate was placed to screen the water passing through. The city did not maintain the watercourse as a sewer and had no knowledge that it was so used. The plaintiff enlarged and deepened the cellar under his house, and laid a drain from it connecting with the culvert in such a manner that the water of the stream might flow back. The drain was used to carry the sewage of the house until the summer of 1907, when the city constructed a sanitary sewer on Park Street and the plaintiff connected his premises therewith for sewerage purposes, leaving the drain to carry off water which accumulated in the cellar. During freshets in March, 1907, and in February, 1908, the water backed through the plaintiff’s drain into his cellar, causing the damage sued for. In March, 1908, the city uncovered the culvert at the lower end, and it was found that the upper end of the tile pipe was much obstructed by an accumulation of tin cans, bottles, and other debris. The tile pipe and culvert are large enough to carry all the water of the stream, but the pipe is smaller than the culvert, and the construction at this point is such that articles like those found might naturally accumulate there. Upon the foregoing facts a verdict was given to the plaintiff.</p>

<p>Assumpsit, for services rendered in making plans for a schoolhouse in Berlin. Trial by jury and verdict for the plaintiff. Transferred from the December term, 1907, of the superior court by Chamberlin, J., on the defendants’ exception to the denial of a motion for the direction of a verdict in their favor.</p> <p>The evidence tended to show the following facts: The plaintiff is an architect, and the defendants constituted the board of education in Berlin at the time of the contract in question. The defendants requested the plaintiff to make plans for a school building to take the place of one which had been burned, and after some negotiations between the parties a contract was agreed upon for his employment. Soon afterward the defendants notified the plaintiff to cease working on the plans, as they did not wish to use them. He replied that he should hold them to the contract. He charged his services to the city of Berlin and understood that he was dealing with the board of education. In a suit against the city on this account he was unsuccessful, upon the ground that the board of education had no authority to bind the city. Both parties acted in good faith in making the contract.</p>

<p>Bill in Equity. The questions are raised by the defendants’ demurrer, which was overruled subject to their exception. Transferred from the April term, 1908, of the superior court by Plummer, J.</p> <p>The bill alleges the following facts: The plaintiff is the successor in interest of the Glen Manufacturing Company. November 24, 1894, the Glen Company made a contract with Willis Tucker and Wilfred A. Hodgdon, by which the last named parties agreed to cut a large quantity of timber in certain townships in Coos county, the operations to extend over several years. Section 5 of the contract is as follows: “ The company agrees to loan to said Tucker and Hodgdon, for the purpose of making improvements upon said lands or any of them, such sums, not exceeding in the aggregate ten thousand dollars ($10,000), as said Tucker and Hodgdon shall request; said Tucker and Hodgdon to give their joint and several promissory notes for the amounts so loaned, payable in four or six months from their respective dates, the company agreeing to renew said notes from time to time at the request of said Tucker and Hodgdon, provided that the maturity for the last extension therefor, or any of them, shall not be beyond four years from the date of this agreement; and provided further, that said Tucker and Hodgdon pay interest thereon promptly as hereinafter provided and keep their other agreements herein. All said notes and the renewals thereof shall bear interest at the rate of six per cent per annum payable semi-annually. Said Tucker and Hodgdon shall assign and transfer all improvements made or which may be made by them upon said lands or any of them, and also all leases of other lands used in connection with this business, to the company as collateral security for the payment of said notes and any renewals thereof, which improvements and leases upon the default by said Tucker and Hodgdon in the payment of said notes or any of them, according to the terms hereof, or of any other of their agreements herein, shall after ninety days notice in writing by the company to said Tucker and Hodgdon of any such default become and be the absolute property of the company, but said Tucker and Hodgdon shall not be thereby relieved from liability upon said notes or any of them.”</p> <p>The interests of Tucker and Hodgdon finally became the property of Willis Tucker, now deceased, of whose estate the defendant Miles is the administrator. In carrying on lumbering operations the contractors have made certain improvements on the lands of the plaintiff, which the reasonable prosecution of the work rendered necessary or convenient. They also secured certain leases of lands and rights from third parties, which were used in carrying on the work. It is alleged that neither the contractors nor their successors have performed the conditions of the contract, but in 1903 abandoned the contract, and that in consequence thereof all the improvements made by them upon the lands and all leasehold rights acquired by them became the property of the plaintiff, upon the giving of a written notice to that effect to the defendants, which notice was given. In October, 1903, Tucker gave a personal mortgage of the improvements to the Tucker Lumber Company, one of the defendants, to secure the sum of 125,000. Miles has already removed some of the improvements, and threatens to sell or remove others. The prayer is that the improvements be decreed to be the property of the plaintiff, that an assignment of the leases from Miles as administrator to the plaintiff be ordered, and that Miles be restrained from removing or interfering with the property. By an amendment of the bill, the plaintiff seeks to recover damages for the non-fulfilment of the contract.</p>

Bill in Equity, by the owners of all the preferred stock of the Massachusetts Construction Company Incorporated, in behalf of themselves and all other stockholders of the corporation, to set aside a transfer of the assets of the corporation to the New York Security and Trust Company, on the ground of fraud and conspiracy, and for an accounting.

<p>An attachment within this state of a freight car owned by a foreign railroad company and sent here in the prosecution of interstate traffic, but not in actual use at the time of attachment, is not in contravention of the commerce clause of the federal constitution, or of the laws of congress enacted in pursuance thereof.</p> <p>Case, to recover for the loss of a trunk. The action was begun by attaching a ear belonging to the defendants, and the question of the validity of the attachment was transferred from the January term, 1908, of the superior court by Pike, J.</p> <p>The defendants do not own or operate a railroad in this state and have no place of business here, but they have a contract with the Boston & Maine Railroad whereby each corporation sends its cars over the road of the other. Each pays the other for the use of a car so sent, from the time of its receipt until its return, and has a right to load it on the return journey, provided it is routed toward the point at which it was received. The car in question was loaded in the state of New York for Greenland, New Hampshire, was unloaded as soon as it arrived at Greenland, and was attached before the Boston & Maine Railroad had time to return it to the defendants.</p> <p>The defendants appeared specially and moved to dismiss (1) because of their contract with the Boston & Maine Railroad, and (2) because the ear was being used in interstate business at the time of the attachment.</p>

Assumpsit, to recover a sum of money belonging to the estate of Mary Ann Vannah, deceased. Trial by jury and verdict for the plaintiff.

Bile in Equity, for an injunction. Transferred from the May term, 1908, of the superior court by Pike, J. The case is the same as that reported 78 N. H. 617 and 74 N. H. 468, and the facts appearing in the latter report are made a part of this case. Willow street is a private way, and is the westerly boundary of the plaintiffs’ land and the easterly boundary of the defendants’ land.

Case, for negligence. Trial by jury and verdict for the plaintiff. Transferred from the September term, 1907, of the superior court by JPeaslee, J. When the plaintiff began work for the defendants on February 10,1904, he had never been in a mill or worked around machinery. After working four or five days in the fulling room, he was set at work on the sizing machine, which consists of an iron frame in which are two iron rolls five feet long and fourteen inches in diameter.

Trespass de bonis. Trial by the court and order of judgment for the defendant. Transferred from the April term, 1908, of the superior court by Stone, J. ' March 14, 1908, the defendant, sheriff of the county, duly attached upon a valid writ the property in question, which was furniture in a hotel at Marlborough, as the goods of George L. Cutting, without notice of the plaintiffs’ claim.

Bill in Equity, alleging the wrongful maintenance of a dam upon Israel’s river to the injury of the plaintiffs, owners upon the stream above, and asking a reformation of deeds and an assessment of damages, with a prayer for an injunction. Trial by the court and decree for the plaintiffs. Transferred from the April term, 1907, of the superior court by Pike, J.

<p>Case, for negligence. Trial by jury and verdict for the plaintiff. Transferred from the April term, 1908, of the superior court by Wallace, C. J., on the defendants’ exceptions to the denial of their motion for the direction of a verdict in their favor and to the admission of evidence.</p> <p>The plaintiff’s evidence tended to prove the following facts: In March, 1907, and for some years prior thereto, the defendants maintained for the use of passengers at Franklin Junction a station and adjacent platform located between the tracks of the Concord division and those of the Tilton branch. The platform on the north of the station extended fifty-two feet and was seventeen feet and ten inches wide. For a distance of seven feet and eight inches next to the tracks of the Concord division, the platform was about nineteen inches higher than the remaining portion next to the tracks of the Tilton branch, and two steps running the whole length of the platform connected the two levels.</p> <p>On the morning of March 19, the plaintiff, who was sixty-three years old, alighted from a train which arrived at Franklin Junction over the Concord division and stopped opposite the northern part of the station. There were about thirty persons upon the platform at the time. In the midst of a group of passengers, the plaintiff started to walk diagonally across the platform to the Tilton train. Her view of the platform was somewhat obstructed by those about her. She neither looked for nor saw the steps, and was not aware of their presence. As she moved along the platform, she turned to look for her husband, who had remained longer upon the train and was following behind her, and as she took the next step she fell down the steps of the platform and received the injuries for which she sought to recover. She was not crowded nor interfered with by others.</p> <p>There was considerable travel across the platform. During a period of a year and a half, about a dozen persons stepped from one level of the platform to the other without noticing that there were any steps there, but none of these cases resulted in a fall. Evidence of what other persons did and the result of their action was admitted, subject to the defendants’ exception.</p>

Assumpsit, upon a promissory note. Trial by the court and verdict for the plaintiff. Transferred from the May term, 1908, of the superior court by Pihe, J. One question was whether Wheeler, the defendant’s intestate, indorsed the note. The note was dated April 11, 1905, was payable to the plaintiff, was signed by one Maxwell, and when delivered bore the name of Wheeler as indorser.

Assumpsit, upon a policy of life insurance. Trial by jury and verdict for the plaintiff. Transferred from the January term, 1908, of the superior court by Chamberlin, J. The policy contained a provision that failure to pay the weekly premiums when due should work a forfeiture. The insured died March 2, 1907. The last payment entered on her book was made October 29, 1906, and paid the premiums to December 24, 1906.

Bill in Equity, brought by the city of Keene against the attorney-general, the trustees of the Keene public library, and others.

Bill oe Interpleader. The case is the same as that reported 74 N. II. 466. Since the first opinion was filed the plaintiffs have paid the amount of the McKean death benefit into court, and the facts on which the rights of the several claimants of the fund are based have been found. The question which of the claimants is entitled to the fund was transferred from the May term, 1908, of the superior court by Pike, J.

<p>Bill in Equity, for an accounting and for discovery. Trial by tbe court. Transferred from the April term, 1908, of the superior court by Stone, J. The bill alleges that the plaintiffs were the defendants’ general agents for New Hampshire and Vermont from 1903 to 1907, and were to receive in payment for their services and disbursements a commission on gross receipts, one on excess pay-rolls so called, and one on the net profits of the business, known as contingent commissions, and that they cannot ascertain the amount due them without examining the defendants’ books. The defendants admit that the plaintiffs were their general agents and that the agency contract provided for the payment of the above commissions; but they say that the plaintiffs failed to comply with provisions of the contract and for that reason are not entitled to the commissions.</p> <p>The contract provided among other things (1) that either of the parties might terminate it by giving the other thirty days notice, (2) that in the event of the termination of the contract commissions on excess pay-rolls ascertained thereafter should not be paid to the plaintiffs, (B) that on the fifth day of each calendar month the plaintiffs should remit to the defendants the amount shown to be due them according to the last preceding monthly statement, and (4) that if the contract was terminated, or if the plaintiffs failed to comply with its provisions in relation to remittances, they should forfeit their rights to contingent commissions.</p> <p>In August, 1906, the defendants wrote the plaintiffs that they had decided to terminate the contract on September 25, and in the same letter suggested a plan by which the plaintiffs might continue to do business with them. Subsequently one of the defendants’ special agents called on the plaintiffs, went over the matter with them, and left a draft of a new contract. October 9, 1906, he wrote the plaintiffs as follows: “ I have advised President Stone of our interview on Friday last and of your agreeing to continue the agency in three counties, and I asked Mr. Stone to express himself as to the matters which you and'I have had under discussion, and he writes me as follows: ‘You can say to Mr. Perry, regarding contingent commissions, that we will give him the benefit of his writings under the old contract; as to commissions on excess pay-rolls, we will treat him, so far as we can, on the basis set forth in the printed form of contract. It may be, however, that the agents who will succeed him in the territory that has been detached will have to be used in securing the excess premiums in such a way as to entitle them to the commission. In that event, of course, we cannot allow Mr. Perry anything. He will have to leave these questions entirely to our sense of fairness, and we shall treat him as liberally as we can, with justice to the interests of the other parties involved.’ I trust this covers the. ground and will enable you to receive from the company fair treatment in regard to the matters of contingent commissions and excess pay-roll.”</p> <p>The plaintiffs took time to consider the matter, and after some further correspondence with the defendants wrote them on October 22, 1906, as follows: “Replying to your letter of the 20th as' to the signed contract for the Maryland, covering territory suggested by Mr. Leavitt, would say that so far as we are concerned we care nothing for the contract. We look at it that it is simply a matter of good faith as between the company and the agent, and that the contract is nothing of advantage to us. If it is your practice and you insist upon the contract, we will sign and send it in; at the same time we want the company to realize the fact that whenever it is necessary for us to place our business in other companies, we are at liberty to do so. Our standpoint is simply this: We have some business on our books which we can hold, and it would be much easier for us to continue to renew this in the Maryland, than place it elsewhere. We have other business in view, which undoubtedly we shall secure, considerable of which has been solicited and worked for the Maryland. We would like to continue to send our business if we can be assured that we shall bo properly treated. We don’t like to work up business for you at our own expense and have it taken away, as was recently done, and be deprived of our commissions or our contingent commissions. We have given the company consistent and good service, and hope and expect the company will appreciate it, and, at the proper time, pay us the contingent commission that is due us. Mr. Levette assured me that this was the intention of Mr. Stone, and if so we would like to have his acknowledgment of same, and we would then readily sign the contract agreement and continue to send you such business as we can, and care for it in such a manner as we are capable to our joint interests.”</p> <p>To the foregoing letter the defendants made the following reply: “ The only way in which you can be an agent of ours is to sign the contract which Mr. Levette left with you. If you decide to do that, please let me have it by return mail. In that event we will include, in making up your contingent commission account under it, the items to which you would have been entitled under your former contract, if the same had not been terminated. This, you will understand, is given you as a concession and not as a right, the old contract being entirely clear as to the termination of your interest in contingent commissions simultaneously with its termination.” Upon receipt of this letter the plaintiffs signed the contract and returned it to the defendants, with the following reply: “ Thanking you for your letter of October 25th, I have signed and am sending the contracts, as requested. This is done with the understanding that the contingent commission under the old contract is to be allowed in the same manner as though it had not terminated.”</p> <p>The contracts were precisely the same, except as to the territory included in the agency. The second one was signed October 27, but was dated September 25 — the day the first one expired. The plaintiffs never complied with the provisions in respect to making remittances while either contract was in force, but the defendants paid them their contingent commissions for the years 1903, 1904, and 1905. After the defendants terminated the contract in the fall of 1906, they insisted that the plaintiffs were not entitled to contingent commissions for that year; but the reason given was not that the plaintiffs had failed to comply with the provision of the contract in respect to remittances, but that the defendants had terminated the contract as they had a legal right to do. The first suggestion that the plaintiffs had failed to comply with the provision as to remittances was in May or June, 1907, after they had written the defendants several letters in respect to a settlement of the contingent commission account for the previous year.</p> <p>The defendants’ motion that the bill be dismissed for want of proof was denied, and they excepted. They also excepted to the admission of certain evidence. The court found that the defendants had waived the conditions of the contract relating to commissions on excess pay-rolls and contingent commissions, and ordered them to make the discovery prayed for.</p>

<p>Under the statute of descent and distribution, the aunt of a person deceased is entitled to the unbequeathed estate, to the exclusion of cousins.</p> <p>Probate Appeal. The probate court decreed the unbequeathed estate of Maria R. Adams to her surviving aunt, to the exclusion of the children of deceased uncles and aunts. Upon appeal the decree was affirmed, and the appellants excepted. Transferred from the April term, 1908, of the superior court by Stone, J. ■</p>

Foreign Attachment. Issue between the plaintiff and the claimant. Transferred from the October term, 1908, of the superior court by Wallace, C. J. At the date of service, Edson, the trustee, had in his possession a check drawn by the Hartford Life Insurance Company of Hartford, Connecticut, upon the First National Bank of that city, payable to the order of himself and Goss, the principal defendant.

Bill in Equity, for an injunction, filed February 18, 1907. Facts found, and case transferred from the September term, 1908, of the superior court, by Ohamierlin, J. February 16, 1906, the defendant held a mortgage upon land and buildings in Jefferson, given by the plaintiff to secure the payment of a note which was then overdue, and on that day her duly authorized agent entered upon the premises in the presence of a witness for the purpose of foreclosing the mortgage.

<p>Section 1, chapter 113, Laws 1901, was intended to enlarge the rights of a widow in the personal estate of her deceased husband only when he leaves no issue surviving him.</p> <p>Probate Appeal. The question whether the appeal should be sustained or dismissed was transferred from the October term, 1908, of the superior court by Pike, J., without a ruling, on an agreed statement of facts.</p> <p>The defendants’ father died in 1904, intestate, leaving personal estate, a widow, and four children. After payment of debts and expenses of administration, the personal estate remaining in the hands of the administrator was less than $150, which the probate court ordered to be divided as follows: one third part thereof to the widow or to her administrator, and the remaining two thirds in equal shares to the four children. From this decree the widow’s administrator appealed.</p>

Case, for libel. The plaintiff’s counsel stated in opening bis case that be expected to prove that tire defendant, being tax collector for tbe city of Portsmouth and having an overdue real estate tax against the plaintiff, advertised, the property for sale by posting the notices required by the statute and also by publishing like noytices in two newspapers. These publications were alleged to have (been made maliciously and for no purpose except to injure the I plaintiff.

Petition, for the revision of a decree as to alimony. After the decision in this case, reported 74 N. H. 256, upon further hearing the superior court (Níone, J.) found that justice and equity required a modification of the decree and ordered the payment of additional sums as alimony.

Appeal, from the assessment of damages by the city council of Laconia for land taken, under the power of eminent domain for the enlargement of the public library park and lot. The land in question is located at the corner of Main and Church streets, and at the time of the taking was occupied by the Congregational Church Society with a house of public worship. The appellant was awarded one dollar damages.

<p>Case, for personal injuries sustained by tbe plaintiff' while at work in the defendant’s passenger station at Concord as an employee of the American Express Company, and caused by negligence of tbe defendant’s servants in tbe management of a locomotive. Trial by jury and verdict for the plaintiff. Transferred from tbe October term, 1907, of tbe superior court by Pike, J.</p> <p>Tlie defendant pleaded the general issue and filed a brief statement setting forth certain agreements made prior to the accident between tlie plaintiff and the Express Company and between tbe Express Company and the defendant, and also a release under seal, given by the plaintiff after bis injury to tbe Express Company and tbe defendant. The plaintiff replied that the special release was not his deed and was obtained by frand, and demurred to the other matters of defence pleaded in the brief statement. The demurrer was sustained, and the defendant excepted.</p> <p>By his agreement with the Express Company, entered into in consideration of his employment, the plaintiff assumed “ all risk of accidents and injuries which I shall meet with or sustain in the course of my employment, whether occasioned or resulting from or by the gross or other negligence of any corporation or person engaged in any manner in operating any railroad, ... or of any employee of any such corporation or person, or otherwise,” promised to “ execute and deliver to the corporation or persons owning or operating any railroad . . . upon which I shall be so injured a good and sufficient release,” and agreed that the provisions for waiver and release should be held to enure to the benefit of every railroad corporation upon whose lines the Express Company should forward merchandise.</p> <p>The agreement between the defendant and the Express Company provided that the railroad should “ furnish to the Express Company, without charge, all requisite, reasonable, and necessary facilities, conveniences, and rooms in or connected with its stations and depots, for the care and handling of its express matter, and the loading and unloading thereof into and from the cars, with a view to the prompt dispatch of its business,” and that the Express Company should “ indemnify and save harmless the railroad from all claims for property damaged, injury to or death of person, which may be made by the officers, agents, or employees of said Express Company while acting in the scope of their employment.”</p> <p>The release under seal was expressed to be in consideration of the payment of $65 to the plaintiff. The circumstances under which it was given and the facts relating to the accident in which the plaintiff was injured, to evidence admitted subject to exception, and to instructions requested by the defendant and refused by the court are stated in the opinion.</p>

Foreign Attachment. The question whether the Boston & Maine Railroad should be charged as trustee was transferred from the May term, 1908, of the superior court by Pike, J. The trustee disclosed as follows: Q. “ Can you state whether or not the Boston & Maine Railroad was indebted to the Chicago, Rock Island & Pacific Railway on the first day of January, 1906, and if so, for how much?” A. “ It was undoubtedly indebted to the Chicago, Rock Island & Pacific road on the first…

Bill in Equity, praying for the specific performance of a contract whereby the defendants agreed “ to contract the pine planks on the Richardson lot in Westmoreland, at the market price when sawed, to said Box Company.” The bill alleges, among other things, that the pine on the Richardson lot was to be sawed into planks two and one eighth inches thick, such planks being the only material which the plaintiffs can use in their business; that it is necessary for them to carry a…

Information, charging that on May 1, 1908, at Lincoln in said county, the respondent “ did then and there unlawfully keep for sale a large quantity of vinus, fermented, distilled, rectified spirits, spirituous, brewed, malt wines, and other beverages containing more than one per cent of alcohol at sixty degrees Fahrenheit, to wit, one gallon of spirituous or distilled liquors, wines, fermented, rectified spirits, spirituous, brewed, malt wines, and other beverages containing…

Assumpsit, on a fire insurance policy. The facts were agreed, and. the questions of law arising thereon were transferred from the September term, 1908, of the superior court by Pike, J., without a ruling.

Appeal, from a sentence imposed by a police court upon a complaint charging the defendant with fishing in Profile lake in Franconia. Transferred from the September term, 1908, of the superior court by Pike, J., upon an agreed statement of facts.

Bill in Equity, for an injunction to prevent tbe defendants from maintaining a dam across the Androscoggin river which causes the water to flow back upon the plaintiffs’ land. Transferred from the April term, 1907, of the superior court by Pike, J. The plaintiffs are riparian owners of land in Shelburne on the Androscoggin river above Lead Mine bridge, at which place the defendant Noyes constructed the dam complained of.

<p>The time during which a prior libel for divorce was pending is not to be excluded as matter of law in computing the three-years period of abandonment. '</p>

Bill in Equity, brought under section 1, chapter 64, Laws 1895, praying that a tax sale be decreed invalid and that the defendants or their tax collector be ordered to repay to the plaintiff the sum of $36.94. Transferred from the March term, 1908, of the superior court by Stone, J., without a ruling, upon an agreed Statement of facts. In 1906, the plaintiff took a mortgage of an ice-house erected on leased land in Meredith.

Libel, filed April 10, 1908, for the forfeiture of spirituous liquor.

Assumpsit, for an indemnity under a benefit certificate. Trial by jury and verdict for the plaintiff. Transferred from the April term, 1908, of the superior court by Wallace, C. «L, on the defendant’s exception to the denial of a motion for a nonsuit. The certificate contains the following provisions: “ A disability, to constitute a claim for sickness, . . . shall require absolute, necessary, continuous confinement to the house for not less than fourteen days. . . .

Assumpsit, for money paid the defendants by R. Gf. Jameson & Son, on February 15, 1904. Writ dated January 21, 1905. Facts found, and case transferred from the September term, 1908, of the superior court, by Qhamberlin, J. In June, 1898, the plaintiff was the holder of a check on a Massachusetts bank for §55, which he indorsed and transferred to R. G. Jameson & Son, who in turn indorsed the check and deposited it in the defendant bank.

Case, for negligence. The declaration alleged that the plaintiff’s minor son, on December 17, 1907, during his employment by the defendants and while in the exercise of due care, was instantly killed by the defendants’ negligence. The action was brought by the father to recover for loss of the son’s services from the time of his death during his minority. The defendants demurred.

<p>Complaint, filed by the county solicitor upon the order of- the superior court (Chamberlin, J.), on the question whether Llewellyn F. Hobbs should be allowed to retain the office of attorney. The facts were found by Justices Walker and Bingham.</p> <p>Hobbs was admitted to practice in 1904, on evidence of age, good moral character, and admission and practice in another state, under the provisions of section 8, chapter 213, Public Statutes. He has also held the office of justice of the peace. The following charges made against him were found ^o be true: “ That during the summer and fall of the year 1907, said Hobbs, as such justice, held court at said Elampton for the arraignment and trial of various persons charged with violations of section 10, of chapter 86, Laws of 1905, but said Hobbs failed to keep such record thereof as is required by law. That said Hobbs has tried, found guilty, and imposed sentence upon respondents in such eases, upon complaints which have not been signed or sworn to by any complainant. That said Hobbs has tried, found guilty, and imposed sentence upon said respondents without, any warrant having been issued. That said Hobbs has used such purported complaints, after the same had been once used, and one respondent convicted thereupon, in one or more later cases for different and separate offences, by merely inserting tbe name of tbe subsequent respondent therein, and has then used said alleged complaint as the basis for one or more subsequent arraignments, trials, and convictions. That said Hobbs has arraigned, tried, and convicted such respondents without having any complaint or warrant as the basis for such proceedings.”</p> <p>The charge “ that said Hobbs has, as such justice, received in such proceedings certain sums of money as fines and as cash bail, which sums of money said Hobbs has not paid over to the town or county, but has converted the same to his own use,” was found “true, with qualification that said Hobbs has not intentionally and deliberately converted the money to his own use.” There was an additional finding that “his method of conducting the prosecution was due to extreme carelessness on his part, indicating a willful disregard of the ordinary modes of procedure in such cases, and his method of keeping account of the fines paid to him was so unjustifiable as to amount to gross carelessness.”</p>

Tbespass de bonis. The plaintiff sold to the defendants two lots of “ standing lumber.” The deed provided that all lumber remaining on the premises at the end of three years should revert to the grantor. The defendants cut and sawed the trees, but did not remove all the boards from the lot within the time limited. They subsequently removed those remaining on the lot at the expiration of three years, and this suit is to recover their value.

<p>The fact that the testimony of the plaintiff’s expert witness warrants the inference that injuries complained of were not caused by the defendant’s negligence does not justify an order of nonsuit, if such conclusion does not necessarily follow from all the evidence submitted.</p> <p>Case, for personal injuries caused by an explosion of stove polish. The case is the same as that reported 74 N. H. 485, and was transferred from the January term, 1909, of the superior court by Plummer, J. .</p> <p>Upon the second trial there was a verdict for the plaintiff. The evidence was substantially the same as upon the first trial, with the exception that the plaintiff’s expert chemist testified on cross-examination that the polish would not explode unless it came in contact with a surface heated to incandescence — -a degree of heat which the evidence tended to show the plaintiff’s stove did not have. The defendants’ motion for a nonsuit was denied, subject to exception.</p>

<p>'When there is a conflict between the lex loci and the lex fori, the former governs both in torts and in contracts; and whatever would constitute a defence to an action of assumpsit brought in the jurisdiction where the transactions occurred is a defence here.</p> <p>When the law of a sister state is material, it is to be proved like any other fact; and in the absence of proof, there is a presumption that the common law prevails.</p> <p>The common-law rule which refused to recognize contracts between husband and wife is followed in this state, except as modified by statute.</p> <p>A contract between husband and wife may be enforced in equity, upon proof that the agreement is just and fair, and is one which equitably ought to be enforced.</p>

Case, for personal injuries. Trial by jury and verdict for the defendants. Transferred from the December term, 1907, of the superior court by Chamberlin, J. The plaintiff’s hand was injured by coming in contact with a circular saw, while he was employed in the defendants’ mill as a sawyer’s helper. The defendants claimed that at the time of his injury he was not working within the scope of his employment.

Assumpsit, on a policy of accident insurance dated April 21, 1906, and issued to the plaintiff by the defendant company. Trial by jury. Transferred from the December term, 1907, of the superior court by Chamberlin, J. The plaintiff was fifty-seven years old at the time of the trial. He was a resident of Berlin, and had lived for some years in a house westerly of the tracks in the yard above the station of the Grand Trunk Railway.

Complaint, against Harry F. Allen, an attorney of the court, charging among other things the conversion of his client’s money and misrepresentation to the client of the progress of the collection of the latter’s demand against a third party. The facts were heard before a single justice, who found the foregoing charges proved and others set forth in the complaint not sustained.

Case, for personal injuries. Trial by jury and verdict for tbe defendants. Transferred from the April term, 1908, of the superior court by Stone, J. The plaintiff was injured while, or just after, alighting from the defendants’ car. The conductor of the car was called by the defendants and testified in regard to what occurred at the time the plaintiff was injured.

Probate Appeal, from a decree of distribution. The testator bequeathed the residue of his estate “ in equal shares ” to bis four children and two children of a deceased son, naming the legatees, and directed his executors to pay the shares of the grandchildren to them when they arrived at the age of twenty-one years. In case of the death of any of the legatees named, their shares were given to the survivors.

Indictment, charging that the defendant, on September 4, 1908, “ did falsely make and counterfeit a certain American Express money order for the payment of money, purporting to be made and signed by one W. A. Davids, assistant agent, for the sum of fifty dollars, . . . with intent that some person should be defrauded.” Trial by jury and verdict of guilty.

Case, for alienation of the affections of the plaintiff’s husband. Trial by jury and verdict for the defendant. Transferred from the January term, 1908, of the superior court by Pike, J. In his opening statement the defendant’s counsel, after declaring that he should show that the plaintiff’s husband was a very immoral man, said: “And it is his affections that Mrs. Walker should pay $50,000 for.

Bill in Equity, in aid of which an action at law was brought. The controversy is the same as that reported 73 N. H. 515. Facts found, and case transferred from the February term, 1908, of the superior court, by Stone, J., who denied the plaintiffs’ motion for the assessment of damages in the suit at law and ordered both suits to be dismissed, subject to the plaintiffs’ exceptions.

Petition, for the construction of the will of Edwin E. Beede. Facts found, and case transferred from the March term, 1909, of the superior court, by Stone, J., without a ruling. By the second clause of his will the testator gave “ the sum of $20,000, as follows: $5,000 in cash and $15,000 in Northern Pacific, Gt. Northern, C. B. & Q. collateral bonds.” Other bequests are in similar form.

Case, for personal injuries. Trial by jury and verdict for the plaintiff. Transferred from the May term, 1908, of the superior court by /Stone, J., on the defendants’ exception to the denial of their motion for a nonsuit. The plaintiff, a boy fourteen years of age, was employed by the defendants to clean spinning frames and to carry waste to the basement of their mill on an elevator.

Petition, for the abatement of taxes assessed upon logs and lumber in the defendant town on April 1, 1907. Trial at the October term, 1908, of the superior court before Chamberlin, J., who ordered a partial abatement of the tax. To this order the defendants excepted.

Assumpsit, to recover taxes assessed against real estate owned by a .resident of Yermont. Trial by the court. A verdict was found against the defendant individually, and he excepted. Transferred from the October term, 1908, of the superior court by Chamberlin, J.

Assumpsit, for high-school tuition. Transferred from the March term, 1909, of the superior court by Chamberlin, J., on an agreed statement of facts. Prior to November, 1905, O. A. Wilson, father of the child for whose tuition recovery is sought, lived on a farm in Landaff. In that month he sold all his farming tools and stock, and soon after removed to Lisbon with his family and most of his household goods and kept house there.

Information in Equity, asking for an injunction to restrain the defendants from demanding or receiving rates in excess of the maximum rates established by law, for the transportation of freight upon and over any of the lines of railroad operated by them within the state under the authority conferred by chapter 100 of the Laws of 1883, chapter 5 of the Laws of 1889, and chapter 156 of the Public Statutes.

Case, for personal injuries resulting in the death of Horace E. Cheney, the plaintiff’s intestate. Trial by jury and verdict for the plaintiff. Transferred from the June term, 1908, of the superior court by Qhamberlin, J., on the defendants’ exceptions to the denial of their motions for a nonsuit and the direction of a verdict in their favor. The accident occurred at a railroad crossing on Kearsarge street in the village of North Conway.

Case, for interfering with the employment of the plaintiff in the McElwain shoe factory. Trial by jury. At the close of the plaintiff’s evidence a nonsuit was ordered, subject to his exception.

<p>An expert upon the question of land values, who has testified as to his dealings in realty, may be examined as to the extent of his ownership of real estate in the vicinity of the premises in question.</p> <p>A ruling in one case excluding certain evidence is not “ the law of the trial ” in another case, where similar evidence is offered bearing upon a different issue and tending to prove a dissimilar fact.</p> <p>If evidence has a logical bearing upon the issue raised, it is not inadmissible merely because the jury may consider it upon another issue to which it is not legally relevant.</p> <p>Knowledge by counsel that certain evidence which he believes to be competent will be excluded by the trial court does not render an offer to produce it by questions addressed to witnesses improper or reprehensible; nor does his desire that the jury should make an illegitimate use of the facts contained in the interrogatory furnish cause for setting aside a verdict.</p> <p>A verdict is not to be set aside because counsel in the course of argument makes an erroneous statement of the law, or draws an unwarranted inference from facts in evidence.</p>

Cask, for negligence. Trial by jury and verdict for the plaintiff. Transferred from tbe December term, 1908, of the superior court by Pike, J., on the defendants’ exceptions to the admission of evidence, to certain instructions to the jury, and to the denial of their motions for a nonsuit and the direction of a verdict in their favor.

Case, for personal injuries. Trial by jury and verdict for the plaintiff. Transferred from the December term, 1908, of the superior court by Pike, J. It was the plaintiff’s duty to start the defendants’ chip-conveyor whenever it stopped, which was sometimes few and sometimes many times a day. When it stopped a number of men were forced to temporarily quit work, and for that reason the plaintiff was expected to start it as quickly as possible.

Case, for personal injuries suffered by Charles Genest while employed in the defendants’ mill. The plaintiff in interest was confined in the asylum for the insane when the suit was brought and at the time of the trial, and the action is prosecuted by his wife as next friend. The defendants pleaded a release and later filed a bill in equity against Genest and his wife, setting up the release and alleging fraud in the prosecution of the suit.

Debt, on a liquor license bond. Trial by jury and verdict for the state. Transferred from the April term, 1909, of the superior court by Wallace, C. J. The breach alleged was a sale of liquor to one Stephanie when intoxicated. Stephanie was called as a witness. During his examination he admitted that he was arrested as he left the place of sale, and was then asked by the state’s counsel if he paid a fine and costs for being drunk.

After the will was made, Lewis P. Ladd leased an acre of land from his aunt and erected thereon the house in which he was living at the time the codicil was executed. The lease provided that if he ceased personally to occupy the premises his interest in the land should cease, and that if he neglected to remove the buildings they should become the property of his aunt, or of her estate, at such valuation as might be agreed upon.

Assumpsit, on a policy of accident insurance. Trial by tbe court. Transferred from the April term, 1909, of the superior court by Stone, J. The provisions of tbe policy relative to tbe amounts payable for various bodily injuries and as weekly indemnities for disability are stated in the opinion.

Assumpsit, for the price of a carload of coal. Trial by the court. Transferred from the April term, 1909, of the superior court by Stone, J. The coal was sold October 5, 1908, by the plaintiffs to one Rossell, a retail coal-dealer doing business in Penacook. Upon its arrival the defendant, another retail dealer in Penacook, bought it of Rossell, agreeing to pay the freight and to leave it to the plaintiffs to determine the manner in which the coal should be paid for.

Writ oe Entry, for the foreclosure of a mortgage. Trial by the court. Transferred from the October term, 1908, of the superior court by Chamberlin, J. The issue tried related to the validity of the defendants’ set-off, in which the plaintiff was charged for the board of herself and children for a period of two years and two months. The plaintiff’s husband is the defendants’ son.

Information, in the nature of quo warranto, to determine the title to the offices of second and third supervisors of the checklist of the town of Chichester. Trial by the court. Facts found, and ease transferred from the April term, 1909, of the superior court, by Stone, J. At the election held in Chichester, November 3, 1908, the moderator declared a tie vote and no choice for second and third supervisors.

Case, to recover for injuries received while in the defendant’s employ. Trial by jury and verdict for the plaintiff. Transferred from the May term, 1909, of the superior court by Chamberlin, J., on the defendant’s exception to the denial of his motion for a non-suit. The evidence tended to prove the following facts: The defendant was erecting a building under contract, and employed masons and carpenters under different foremen.

Petition, for writs of certiorari and quo warranto. Trial by the court. Facts found, and cases transferred from the May term, 1909, of the superior court, by Chamberlin, J.

Trover, for 5,875 pounds of potatoes. Trial by the court and verdict for the plaintiff, to which the defendant excepted. Transferred from the March term, 1909, of the superior court by Chamberlin, J. The plaintiff is a farmer at Piermont, and the defendant is a merchant at Hanover. In May, 1908, W. E. Blood, an innkeeper at Hanover, was in financial difficulties.

Case, for personal injuries. Trial by jury and verdict for tbe plaintiff. Transferred from the December term, 1908, of the superior court by Pike, J., on the defendants’ exception to the denial of their motion for a nonsuit. The plaintiff’s evidence tended to- prove the following facts : The plaintiff was employed by the defendants.

TTareas Corpus. The writ was issued in each case, and the petitioners were brought before the court at the April term, 1909. Upon hearing, the court (Plummer, J.) ordered the petitioners remanded. Exceptions to the order were allowed, and the petitioners admitted to bail pending their determination. At the April term, 1908, of the superior court, both petitioners were indicted for violating section 15, chapter 112, Public Statutes.

Case, for negligently causing the death of Achille Ouilette, an employee of the defendants. Trial by jury and verdict for the plaintiff. Subject to exception, the defendants’ motion for a non-suit was denied and the case was submitted to the jury upon the issue whether the defendants furnished the plaintiff’s intestate a reasonably safe work-place. Transferred from the April term, 1909, of the superior court by Plummer, J.

Appeal, from the probate of the will of William H. Randall. Two issues were submitted to the jury: (1) Was the testator of sound mind? (2) Was the will produced by undue influence? The jury answered the first question in the negative and returned no answer to the second. Transferred from the June term, 1908, of the superior court by Ghamberlin, J. 1.

<p>Where the intent of a testator to direct the disposition of a trust fund is clear, precatory expressions in the will are to be considered as commands, clothed merely in the language of civility.</p>

Bill in Equity, to establish a resulting trust. Transferred from the May term, 1909, of the superior court by Chamberlin, J. The defendants are the administrator and heirs-at-law of James S. Kenney, and the plaintiff was his fiancee. Subject to exception, she was permitted to testify in relation to matters as to which he could have testified if living. If her testimony was admissible, there is to be a decree in her favor.

<p>Since tbo enactment of the Public Statutes in 1891, it has not been the duty of school boards to provide board for teachers.</p> <p>A regulation adopted by a school board is not valid unless it has been recorded and read in conformity with section 5, chapter 92, Public Statutes.</p> <p>A teacher who has conformed to all valid regulations of the school board and is dismissed without a hearing may recover full salary for the period for which she was engaged, under chapter 59, Laws 1905.</p>

Bill in Equity, to remove from the title of a parcel of land in Seabrook a cloud created by a tax deed dated September 14, 1908. Facts found, and case transferred without ruling from the April term, 1909, of the superior court, by Wallace, C. J. The land was originally owned by Cynthia Greeley. In 1905, when the tax was assessed, it was owned by John I).

Bill in Equity. Facts found, and case transferred without final order from the June term, 1908, of the superior court, by Chamberlin, J. The proceeding is a branch of the same litigation heretofore before the court and reported 71 N. H. 117, 128; 72 N. H. 77, 211; 73 N. H. 310, 603, 611; and 74 N. H. 225, 598. The questions now presented relate to the extent of the gristmill right and the orders under which the receiver has been operating.

Petition, for abatement of taxes assessed as of April 1, 1908, upon real estate of the plaintiffs situate in Concord and known as the Roger E. Foster Memorial Parish House. Transferred from the April term, 1909, of the superior court by Stone, J. The premises in question were conveyed to the Wardens and Vestrymen of St. Paul’s Church, in- trust for the use and benefit of St. Paul’s Church. They consist of a lot of land and a brick building of two stories and a basement.

Bill in Equity, heard upon bill and answer. Transferred from the April term, 1909, of the superior court by Stone, J., who ruled that the bill be dismissed, subject to the plaintiff’s exception. The plaintiff is a stockholder in the Concord & Montreal Railroad, one of the defendants, which railroad was leased in 1895 to the Boston & Maine Railroad.

<p>Where money is deposited upon an agreement that it is to be paid to a. vendor of stock when he delivers the certificates, the depositary who temporarily holds both the funds and the stock is not chargeable for either as trustee of the vendor.</p> <p>Case, brought under chapter 270, Public Statutes, to recover money paid as a wager. The writ was served upon the trustees (the Cheshire National Bank and Walter R. Porter) at Keene, on September 16, 1907. The defendants are a foreign corporation, and service was made upon them in Maine. The defendants by their plea denied the jurisdiction, and the questions thereby raised were transferred from the April term, 1909, of the superior court by Pike, J., upon an agreed statement of facts, without ruling.</p>

Probate Appeal. Transferred from the May term, 1909, of the superior court by Wallace, C. J. The plaintiff’s husband was engaged in the lumber business and died seized of a large tract of land on which he grew timber, but he did not occupy the land in connection with any farm or tenement. He never cleared any of the land, but each year removed some of the mature trees.

Case, for negligence causing personal injury, previously reported ante, 228. The plaintiff having died since the former trial, the action is prosecuted by his administratrix. In preparation for further trial, both parties requested sundry rulings of law and each excepted to some which were made.

<p>A general verdict includes the finding of every fact necessary to sustain it of which there is evidence.</p> <p>The objection that evidence adduced by the adverse party is insufficient to warrant a verdict in his 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>Statements by the president of a corporation with reference to business entrusted to him are admissible in evidence against the company.</p>

Trover, for a stock of merchandise contained in a store. Trial by the court.

The plaintiff’s evidence tended to prove that Frank B. Willis had worked for the defendants about one year at the time he was killed. He was employed as a lineman, and had a little experience as such before entering the defendants’ employ. It was a part of his work to straighten leaning poles.

<p>Where a dealer in intoxicating liquor stores his stock in a no-license town in New Hampshire, takes orders and receives payment in Massachusetts, and ships the goods to the purchasers by prepaid express from this state, the contracts tendered by the orders are accepted and performed here, delivery to the carrier being delivery to the vendees, and the liquor is sold and kept for sale in violation of the law of this state.</p> <p>In such case, the legal effect of acceptance and delivery within this state is not nullified by an agreement between the vendor and the carrier that the goods shall remain the property of the former until actually received by the vendees and may be recalled or stopped in transit at any time before delivery to them, especially when the evidence warrants a finding that such agreement was a mere device for evading the law.</p> <p>The fact that a vendee of goods intends to transport them into another jurisdiction does not render the prohibition of their sale by the state a violation of federal law.</p>

<p>Selectmen who undertake the work of highway repair as agents of the town are not constructively liable for damages happening to a traveler through negligence of a co-servant or agent, nor personally liable unless they directed or actively participated in the act which occasioned the injury.</p>

Case, for personal injuries. At the close of the plaintiff’s evidence the defendants’ motion for a nonsuit was granted, and the plaintiff excepted. Transferred from the November term, 1909, of the superior court by Chamberlin, J. At the time of the injury complained of, the plaintiff was an experienced motorman in the employ of the defendants. He was injured by being jammed between a moving car and the side of the car-barn while attempting to run the car out.

Case, for negligently causing the death of the plaintiff’s intestate. Trial by jury and verdict for the defendants. Transferred from the June term, 1908, of the superior court by Chamberlin, J., on the plaintiff’s exceptions to the admission and exclusion of evidence and to remarks of counsel interjected during the progress of the trial.

Foreign Attachment. Writ dated October 12, 1908. The principal defendant was defaulted. The New England Box Company, which was named as trustee, appeared specially and moved that the action be dismissed as against it, on the ground that no legal service had been made upon it; and the questions raised by the motion were transferred from the October term, 1909, of the superior court by Pike, J. The plaintiff and principal defendant reside in Chichester, New Hampshire.

Petition, for an assessment of the value of the right to divert water from a natural stream which the defendants took in in 1902, under chapter 265, Laws 1901. In 1905, the plaintiff bought the land to which this right was originally appurtenant. At the request of the parties, the question whether the plaintiff can maintain this proceeding was transferred without a ruling from the April term, 1909, of the superior court by Pike, J.

Petition, for the assessment of damages caused by taking water from Bullet pond. Facts agreed. Prior to 1902, water from Bullet pond, after passing through Grassy pond and along a natural stream, flowed in an artificial channel cut through some rising ground and thence along a natural depression past the plaintiff’s premises. The water was diverted to this channel by a dam across the natural water-course, and has flowed in this artificial channel for over sixty years.

Bill in Equity, to enjoin the collection of a tax. Trial by the court. Transferred from the January term, 1910, of the superior court by Plummer, J., on the defendants’ exceptions to the denial of their motion to dismiss the bill and to the granting of a temporary injunction restraining the collection of the tax.

Case, upon the statute of highways. The plaintiffs’ declaration alleges “that said city of Nashua was notified in writing in accordance with chapter 59, section 2, of the Laws of 1898, a long time before, to wit six months.” The defendant demurred upon the ground that it had not been notified as required by said section 2. Transferred without ruling from the September term, 1909, of the superior court by Wallace, C. J.

Writ of Entry, to recover land in Goshen. Trial by the court and verdict for the plaintiff. Transferred from the May term, 1909, of the superior court by Plummer, J., upon exceptions which are stated in the opinion.

<p>The acceptance and collection of a check which expressly states that it is “ in full settlement of account,” but is for a smaller sum than that claimed to be due, does not furnish conclusive evidence of the payee’s assent to the proposition of settlement.</p> <p>Assumpsit. Plea, accord and satisfaction. Facts agreed. Transferred without a ruling from the November term, 1909, of the superior court by Plummer, J.</p> <p>The suit is upon a disputed account for lumber. The defendant, claiming damages in the sum of $150 against the plaintiff for breach of contract to ship other lumber, sent his check to the plaintiff for the sum due less that amount, stating in the letter and upon the face of the check that it was “ in full settlement of account to date.” The plaintiff indorsed the check and received the money upon it, which he credited to the defendant on account. Upon these facts it is claimed that the plaintiff is “ concluded ” and that the defendant is entitled to judgment. If this claim is not sustained the case is to stand for trial.</p>

<p>An adopted, child is not “issue,” within the meaning of the statute defining the rights of a surviving husband or wife in the estate of a deceased wife or husband; and the share of a surviving adopting parent in the estate of the one deceased is the same as it would be if no child had been adopted.</p>

Indictment, for libel. Tbe defendant’s motion to quasb the indictment for alleged irregularities before the grand jury was denied, and he excepted.

Bill in Equity. The defendants’ demurrer to the bill was overruled, subject to exception. Transferred from the January term, 1910, of the superior court by Pike, J.

Assumpsit, on a promissory note for $100, dated March 27, 1906, and payable two months from date.

<p>Where a servant is injured by an explosion of dynamite while removing dirt which has been loosened by blasting, the question of the master’s negligence is properly submitted to the jury unless it appears that he used tho utmost care to detect the presence of the unexploded charge, or gave warning of the existence of the danger.</p> <p>A master who takes every precaution to render a work-place safe, but fails to furnish information concerning its secret dangers which are known to Mm, cannot escape liability for injury to a servant resulting from the hidden peril, on the ground that such knowledge would not have enabled him to avoid the danger.</p> <p>A smaller amount of evidence is sufficient to support a finding that the sole beneficiary of a fraudulent transaction participated therein than would be required if he were not interested in the subject-matter, or if the visible actor had some selfish end to serve.</p>

Bill IN Equity, for an injunction. Transferred from the January term, 1910, of the superior court by Pike, J. The subject of the litigation has been transferred to the supreme court three times: 73 N: H. 617, 74 N. H. 468, and ante 166.

<p>Foreign Attachment. Issue between tbe plaintiff and tbe claimant. Transferred from tbe December term, 1909, of tbe superior court upon tbe plaintiff’s bill of exceptions allowed by Chamberlin, J.</p> <p>Tbe principal defendants are copartners, Woodward hereinafter mentioned being a member of tbe firm. Tbe trustees are tbe Burbank Company and tbe Orient Insurance Company. May .23, 1907, Woodward bad a claim against tbe Burbank Company for $6,000, evidenced by a promissory note of that date. Tbe note was secured by a pledge of shares of tbe capital stock of tbe Burbank Company, which proved to be worthless, and by a verbal agreement that the company’s stock in trade should be kept insured for Woodward’s benefit. February 4, 1908, tbe Burbank Company’s property was destroyed by fire, and three days later tbe corporation gave Woodward an order upon the Orient Insurance Company for tbe payment of tbe insurance money to him, tbe amount collected thereon to be applied in part payment of tbe note for $6,000. February 13, 1908, tbe insurers accepted tbe order, and a receiver appointed by tbe court has in his bands $3,060.84 collected thereon.</p> <p>When the order upon the Insurance Company was given to Woodward, the Burbank Company’s note for $6,000 was held by the claimant Bartlett, it having been delivered to him by Woodward in October, 1907, as security for the latter’s indebtedness upon certain notes, in exchange for other collateral then surrendered by Bartlett. At the date of adjudication, $1,948.76 was due Bartlett upon Woodward’s debt for which the Burbank Company’s note was pledged.</p> <p>Upon the foregoing facts a decree was made directing the receiver to pay out of the fund in his hands the sum of $1,948.76 to the claimant, and the plaintiff tendered this bill of exceptions.</p>

Bill in Equity, praying that the defendant be ordered to mortgage to the plaintiffs certain realty described in his application for a liquor license bond, or to mortgage sufficient real estate to indemnify the plaintiffs from liability on the bond, and for such other relief as may be just.

Case, for personal injuries received by the plaintiff while in the defendants’ employ. Trial by jury and verdict for the plaintiff. Transferred from the December term, 1909, of the superior court by Chamberlin, J., on the defendants’ exceptions to remarks of counsel in closing argument which appear in .the opinion.

Assumpsit,, on a written contract to purchase a piano. Transferred without ruling from the September term, 1909, of the .superior court by Chamberlin, J., on an agreed statement of facts. The plaintiff agreed to furnish to the defendant coupons to the ■amount of $20,000. The denominations vary, but tbe printed matter on all of them is as follows: “GRAND PIANO CONTEST CERTIFICATE. “Save these certificates. Watch our advertisement for conditions and date.

Motions, by the plaintiffs, that two witnesses, duly summoned under a caption for the taking of depositions to be used on the trial of the plaintiffs’ petition for abatement of taxes, be directed to answer certain inquiries put to them in the course of their examination and to produce certain documents in obedience to a subpoena duces tecum served upon each.

Case, for personal injuries. Trial by jury and verdict for the plaintiff. Transferred from the September term, 1908, of the superior court by Wallace, C. J., on tbe defendants’ exceptions to tbe admission of evidence, to the remarks of counsel, and to the denial of a motion for the direction of a verdict in their favor.

Goodwin v. Buelduc & a. Trespass quare clausum. Trial by a referee, who found for the plaintiff and reported the facts. Both parties claim title to the locus, which is a part of the northerly half of Lot 66, Range 2, in New Durham. Further facts appear in the opinion. Transferred without ruling from the September term, 1909, of the superior court by Chamberlin, J.

<p>A master who knowingly provides defective machinery and fails to notify his servant of the danger attending its use is liable for the resulting injury, unless it conclusively appears that the servant appreciated, or should have appreciated, the risk incident to such conditions.</p> <p>The casual and infrequent operation of a defective machine by an experienced servant is not sufficient to charge him, as matter of law, with an appreciation of the dangers incident to such use and not open to common observation.</p> <p>Evidence that a circular saw threw stock back on the day after an injury to its operator is relevant upon the issue of its behavior on the day of the accident.</p> <p>Misquotations of the evidence by counsel in argument do not furnish cause for reversal, if they are not found to have been intentionally made or to have produced the verdict, and the jury were instructed to disregard them.</p>

Debt. The plaintiff seeks to recover under the provisions of sections 14 and 16, chapter 150, Public Statutes. The defendant demurred on the ground that the plaintiff’s remedy is in equity. Transferred without a ruling from the April term, 1910, of the superior court by Chamberlin, J.

Case, for personal injuries suffered by the plaintiff while in the employ of the defendants. Trial by jury and verdict for the plaintiff. The defendants’ motions for a nonsuit and the direction of a verdict in their favor were denied, and they excepted. Transferred from the March term, 1910, of the superior court by Chamberlin, J.

Tout, to recover damages for the bite of a dog. The declaration is as follows: “In a plea of tort,for that the said defendant, at said Gilmanton, on or about the 11th day of July, 1908, was the owner or keeper of a certain dog, and he, the plaintiff, at said Gilman ton, on or about the said 11th of July, 1908, while not engaged in the commission of a trespass or other tort, was attacked by said dog and badly bitten, ... all of which is to the damage of the plaintiff as he…

Trover, for the conversion of a quantity of sawmill machinery, etc. Trial by the court and verdict for the plaintiff. The plaintiff holds two mortgages on the property, and the defendant holds a vendor’s lien, a third mortgage (which does not mention the first and second), and a bill of sale from the mortgagor. There was no question of the due execution and record of the various incumbrances, nor of the amount due upon the demands secured thereby.

Informations, in the nature of quo warranto, to determine the title of the defendant to the office of overseer of the poor of Nashua. Transferred without ruling from the May term, 1910, of the superior court by Plummer, J., on an agreed statement of facts. In January, 1909, the board of mayor and aldermen proceeded to the election of an overseer of the poor for the ensuing year. Hive aldermen voted for the relator, and four aldermen and the mayor voted for the defendant.

<p>Evidence that a driver guided his horse in close proximity to a street car, in such a manner that collision with an alighting passenger could not bo avoided, warrants a finding of negligence on his part.</p> <p>One who acts upon the assumption that teams will be so .driven upon a city thoroughfare as not to unnecessarily endanger those alighting from street cars is not thereby chargeable with negligence as matter of la.w.</p> <p>Case, to recover for injuries received in a collision with a horse driven by the defendant’s servant. Trial by jury and verdict for the plaintiff. Transferred from the January term, 1910, of the superior court by Wallace, C. J., upon the defendant’s exception to a denial of his motions for a nonsuit and the direction of a verdict in his favor.</p>

Case, for negligence. At the close of all the evidence a verdict was directed for the defendants, and the plaintiff excepted. Transferred from the April term, 1910, of the superior court by Chamberlin, J.

Bill in Equity, for the partition of four parcels of land owned by Ebenezer Wentworth at his death. The questions of jurisdiction and laches arising upon the facts hereinafter stated, which were agreed by counsel, were transferred without ruling or finding from the January term, 1910, o'f the superior court by Plummer, J. Ebenezer Wentworth died in 1860. His will was duly proved in 1861, and executors were appointed who assumed the trust.

Assumpsit, upon a fire insurance policy for $400 upon the plaintiff’s stock in trade, consisting of dress goods and shoes, which was damaged by smoke and water on September 6, 1909. Trial by jury and verdict for the plaintiff.

Case, for injuries alleged to have been done to tbe plaintiff while upon the defendants’ land, by a wire which had been ■stretched across the land by them to prevent persons crossing the .lot. Trial by jury and verdict for the plaintiff.

<p>A married woman is entitled to a homestead exemption in her own right in land owned in common by herself and her husband and occupied by them asa home, when she has made no claim to such exemption in her husband’s part of the land.</p> <p>Claim, for a homestead exemption by the defendant, a married woman, against the plaintiff’s levy of an execution against her. She and her husband own the real estate in question in undivided halves and occupy it as their home. Upon these facts the court denied her claim, and she excepted. Transferred from the November term, 1907, of the superior court by Chamberlin, J.</p>

Probate Appeal. Facts found, and case transferred without a ruling from the March term, 1910, of the superior court, by Chamberlin, J. Edwin E. Beede, a resident of Meredith, died at Plymouth on January 13, 1908, leaving a will which was duly admitted to probate, and D. Emery Eaton was appointed executor.

Assumpsit, on a promissory note for $200, dated February 21, 1902, signed by W. C. Dearborn and J. P. Currier, and payable six months after date to J. P. Cilley or order. The writ is dated May 8, 1907. Dearborn pleaded a discharge in bankruptcy, which was admitted. Currier pleaded the general issue and filed a brief statement of defence, which is substantially set forth in the opinion.

Writ oe Éntry. Trial by jury and verdict for the plaintiff. Transferred from the June term, 1908, of the superior court by Chamberlin, J. The controversy related to the location of a boundary line between the parties, who were owners of adjoining lots of land. The defendant claimed that a certain wire fence was on an agreed line.

Motion, for a certificate under section 12, chapter 236, Public Statutes, that the cause of action arose from the willful and malicious act of the defendant. The action was tried at the September term, 1907, of the superior court before Peaslee, J., and a jury. There was a verdict for the plaintiff, upon which judgment was rendered January 6, 1908, after the justice presiding at the trial ceased to be a member of the superior court.

Petition for mandamus. Trial by the court. Facts found, and case transferred from the May term, 1910, of the superior court, by Wallace, C. J.

<p>A contract which the parties thereto are forbidden to make by the lex loci contractus is. invalid and cannot be enforced in this jurisdiction.</p> <p>A shipper of freight is not estopped to set up the invalidity of a Sunday contract of carriage because transportation was completed at a time when the agreement might have been legally made, nor by his acceptance of the goods at their destination when it appears that no other course was open to him.</p> <p>If goods shipped under an invalid contract limiting the carrier’s liability are injured in transit to an amount exceeding the reduction in rates made as a consideration for the special agreement, the owner is not required to tender the difference in charges before repudiating the contract and suing for the full amount of his loss.</p>

Petition, for abatement of taxes. Transferred from the May term, 1910, of the superior court by Plummer, J., on an agreed statement of facts, August 1, 1907, the plaintiff, Anna Tessier, gave Albina V. Tessier a bond conditioned to convey certain real estate to the latter upon payment of $20,000 therefor in accordance with the terms of the bond, as follows: $800 on the date of the bond and $600 each six months thereafter, with interest upon the unpaid balance at the rate of…

Case, for negligently injuring the plaintiff’s horse, carriage, and harness. Trial by jury and verdict for the plaintiff. Transferred from the January term, 1910, of the superior court by Wallace, C. J. As the plaintiff’s servant was driving her team diagonally across Canal street in Nashua, the defendants’ car collided with the wagon and caused the injury complained of.

“ Ira Cobby & Son, “ Attys. for deft. “ and Ollie M. Lamberton.” In this proceeding, the court (Pike, J.) ruled that the existence of the way had not been established as between Mrs. Lamberton and Dinsmore, and the plaintiffs excepted. Transferred from the May term, 1910, of the superior court.

Covenant Broken. Trial by a referee. Transferred from the May term, 1910, of the superior court by Plummer, J. The writ is dated September 8, 1904. On November 23, 1905, the plaintiff was allowed to amend the declaration by adding a count in quantum meruit for work done, materials furnished, and money paid out for the defendants.

Case, for negligence. At the close of the plaintiff’s evidence, the defendants moved for a nonsuit. The court deemed it expedient to submit the case to the jury and denied the motion pro forma, stating that it would be considered on its merits if the verdict should be for the plaintiff.

There was no evidence that Rousseau was notified of the danger by the defendants, of that it was ever spoken of in his hearing. He was a man twenty-two years old, of average intelligence, and had been in the defendants’ employment for two years. For a year or a year and a half of the time he had acted as spare man, and in this capacity it was his duty to assist in putting on the belt.

Bill in Equity, praying for the appointment of a trustee to carry into effect a trust in land created by Franklin Pierce in 1863. The original trustee is dead, and the plaintiff claims to be the owner of an interest in the beneficial estate. A trustee was appointed, and Maxfield, claimant of an adverse title to the land, excepted. Transferred from the November term, 1907, of the superior court by Chamberlin, J.

Case, for negligence. Trial by jury and verdict for the plaintiff. Transferred from the October term, 1907, of the superior court by Pike, J., upon the defendants’ exceptions to the denial of their motions for a nonsuit and the direction of a verdict in their favor.

<p>Case, for personal injuries. Trial by jury. A nonsuit was ordered at the close of the plaintiff’s evidence, and he excepted. Transferred from the December term, 1907, of the superior court by Ghamberlin, J.</p>

Case, for negligently causing the death of the plaintiff’s daughter. Trial by jury and verdict for the defendant. Transferred from the-February term, 1908, of the superior court by Stone, J. The defendant is a physician and treated the plaintiff’s daughter for spasmodic croup. The plaintiff’s evidence tended to prove that, she died of membranous croup.

Case, for flowage. Trial by jury and verdict for the defendant. The evidence tended to show that the plaintiff employed a deputy sheriff to prepare the case for trial; that the officer employed engineers who looked to him for their pay, gave them directions as to making their surveys, and took the writ in the action to another deputy to serve.

Wbit of Entry. Trial by jury and verdict for the defendants. Transferred from the June term, 1908, of the superior court by Chamberlin, J. Upon the issue of the location of the line between two original town lots, the location of other undisputed lot lines in the same range was put in evidence, subject to exception taken on the ground that the lines were not those in dispute.

<p>Case, for personal injuries. Trial by jury and verdict for the plaintiff. Transferred from the December term, 1907, of the superior court by Ohamberlin, J., on the defendants’ exceptions to the denial of a motion for a nonsuit and to the admission of certain evidence.</p> <p>The evidence tended to prove the following facts: At the time of his injury the plaintiff had been employed by the defendants for twelve years, a part of his duty being the. coupling of cars used in transporting sawdust and waste in the defendants’ yard. Some of the defendants’ cars were equipped with stationary draw-bars, while others had spring draw-bars, and it was frequently necessary to couple cars fitted with draw-bars of the different types. On the evening of June 16, 1906, while the plaintiff was attempting to couple two cars, the spring draw-bar of one car passed to one side of the stationary draw-bar of the other, and the plaintiff’s leg was crushed between the spring draw-bar and the sill of the other car. The defendants’ cars were old, the axles, wheels, and draw-bars upon some of them being worn so as to permit a lateral play of about four inches. Under these conditions it was possible for a draw-bar to pass to one side of another without engaging it, even on a straight track. This had previously happened in the defendants’ yard, but in all his experience the plaintiff had never known of such an occurrence on a straight track, and he did not anticipate such a result with the cars he was coupling when injured. Reasonable inspection would have disclosed the defective condition of the cars. It was necessary to go between the cars when coupling them. The track where the plaintiff usually worked, and where he was injured, was practically straight. At the time of his injury he was doing his work in the ordinary way, without knowledge that he was exposed to unusual risk. Although he could see the exposed portions of the draw-bars and may have been aware that the condition of some cars was such as to permit lateral motion, he had no opportunity to make a careful inspection of them. The nature of his work required him to act quickly.</p>

Case, for negligence. Trial by jury before Wallace, C. J., at the September term, 1908, of the superior court, and verdict for the plaintiff.

<p>Case, for negligently causing tbe death of the plaintiff’s intestate. Trial by jury and verdict for the plaintiff. Transferred from the October term, 1908, of the superior court by Pike, J., on the defendants’ exception to the denial of their motion for a nonsuit.</p>

<p>Replevin, against a trustee in bankruptcy. Transferred from the September term, 1908, of tbe superior court by Wallace, C. J.</p>

Bill in Equity, praying for the specific performance of an agreement to mortgage real estate. Transferred from the December term, 1908, of the superior court by Pike, J.

<p>Case, for personal injuries sustained by the plaintiff while in the defendants’ employ. Transferred from the November term, 1908, of the superior court by Wallace, C. J., on the plaintiff’s exception to an order of nonsuit.</p>

Petition, for advice as to the execution of the will of Luther A. Tarbell. Transferred from the January term, 1909, of the superior court by Wallace, C. J. The testator executed his will September 7, 1892, and died September 24, 1893.

<p>Case, for personal injuries. Trial by jury and verdict for the plaintiff. The defendant’s motion that a verdict be directed in his favor, on the ground that it conclusively appeared that the plaintiff assumed the risk of his injury, was denied subject to exception. Transferred from the April term, 1909, of the superior court by Stone, J.</p>

Assumpsit, for board, lodging, and money paid. Trial by jury and verdict for the plaintiff. Transferred from the September term, 1908, of the superior court by Plummer, J. The plaintiff claimed that the defendant, who is his mother, lived in his family under an express promise to pay for the items charged in the specification. The defendant denied making any promise, either expressly or by implication.

Case, for negligence. Trial by jury and verdict for the plaintiff. Transferred from the January term, 1909, of the superior court by Wallace, C. J., on the defendants’ exceptions to the denial of a motion for a nonsuit and to the refusal of requested instructions to the jury.

Petition, for the assessment of damages under the flowage act. The court refused to instruct the jury that they could not consider the fact that before the plaintiffs’ property was flowed it was available for the summer boarding business, and the defendants excepted. Transferred from the September term, 1908, of the superior court by Chamberlin, J.

<p>Case, for negligently causing the death of Carrie E. Wiggin, while she was driving with a horse and wagon over a level crossing. Trial by jury and verdict for .the plaintiff. Transferred from the October term, 1908, of the superior court by Chamberlin, J., on the defendants’ exceptions to the denial of their motion for a nonsuit and to other rulings made at the trial.</p>

Assumpsit, to recover for labor performed and materials furnished under two contracts, one dated September 16, 1905, called the construction contract, and another dated October 18, 1905, called the equipment contract. Trial by the court.

Case, to recover for injuries received through the negligent operation of the defendant’s automobile. Upon a statement of the facts agreed upon by the parties, the court (Pike, J., in the first case and Chamberlin, J., in the second) in each case ordered a nonsuit, and the plaintiffs severally excepted. The plaintiffs were injured on the same day by collision with the defendant’s automobile while it was being driven by his chauffeur.

Petition, by trustees under the will of Ira Copeland, for advice as to the performance of their duties. Transferred from the September term, 1909, of the superior court by Chamberlin, J.

Debt, on an injunction bond. At the October term, 1909, of the superior court, the defendants’ demurrer was overruled by Wallace, C. J., and they excepted. The court ordered that the original proceeding in which the bond was given be brought forward for the assessment of damages and that the present case be continued to await such assessment.

Assumpsit, to recover damages for breach of a written contract. Trial by the court.

<p>Libel bob Divobce. Trial by the court and decree for the plaintiff. Transferred from the September term, 1909, of the superior court by Pike, J., on the defendant’s exception to the refusal of the court to dissolve an attachment of his property.</p>

Assumpsit. Trial by jury and verdict for the plaintiff. Transferred from the January term, 1910, of the superior, court by Pike, J., on the defendant’s exceptions to the admission of evidence and remarks of counsel in closing argument.

Bill in Equity, asking for a construction of the residuary-clause of the will of Nancie M. Smith and for instructions. Transferred from the October term, 1909, of the superior court by Plummer, J. Jonathan Martin, late of Candia, died May 1, 1887. The second clause of his will is as follows: “ I give and bequeath to my only child, Nancie M. Smith, six thousand dollars in money besides all my wife’s clothing and household furniture.

Petition, for a construction of the will of Gideon Hardy, which was proved June 24, 1884. Transferred without ruling from the May term, 1910, of the superior court by Plummer, J. The defendants were duly served, but did not appear in the superior court.

Assumpsit. Trial by the court. Transferred from the May term, 1910, of the superior court by Chamberlin, J., on the plaintiff’s exception to the denial of her motion for costs.

Replevin, for a piano sold conditionally by the plaintiffs to one Wright and attached by the defendant as the property of Wright. Transferred without a ruling from the May term, 1910, of the superior court by Plummer, J., upon an agreed statement of facts. By the terms of the sale, the title to the piano is in the plaintiffs and is to so remain until it is paid for as stipulated in the contract.

<p>A person otherwise qualified for the office of railroad commissioner is not, as a matter of law, disqualified for appointment to that office or for the performance of its duties, because he is a special depositor in a guaranty savings bank which owns stock in a railroad corporation doing business in this state.</p>

<p>The statutory provision that the word “town,” when used with reference to school affairs, shall be held to mean “ district ” (Laws 1909, c. 23, s. 1) was not intended to include special school districts.</p> <p>The word “town,’' as used in the act providing for an apportionment of state aid among common schools (Laws 1909, c. 158), does not include special school districts.</p>

<p>In the absence of specific legislative authority, the governor and council are not empowered to appropriate money from the state treasury, to be used in defraying the expense of litigation to which the state might properly become a party.</p>