Volume 76 — New Hampshire Reports

Petition, for the abatement of an assessment made by the selectmen of Hampton under chapter 79, Public Statutes. Transferred from the January term, 1910, of the superior court by Plummer, J. At a regularly called meeting, held June 6, 1908, the town of Hampton, under an appropriate article in the warrant, voted to adopt the provisions of chapter 79, Public Statutes, relating to sidewalks and sewers.

Probate Appeal, from the disallowance of the will of William P. Simpson. Transferred from the April term, 1910, of the superior court by Pike, J., on an agreed statement of facts. Simpson died in 1909.

Quo Warranto. At the annual town-meeting in Alton, in March, 1910, the moderator refused to count certain ballots claimed to have been cast for the relator for the office of third selectman, and declared the defendant, who is now in possession of the office, elected.

Case, for negligence. Trial by jury. The court directed a verdict for the defendant, and the plaintiff excepted. Transferred from the January term, 1910, of the superior court by Wallace, C. J. The evidence tended to prove the facts recited below. The plaintiff was thirty-four years old, of average intelligence, and a blacksmith by trade. He was not a machinist, but was employed by the defendant as a laborer or helper.

Appeal, from the report of a commissioner in insolvency. Trial by the court and verdict for the plaintiff. Transferred from the May term, 1910, of the superior court by Pike, J. Cornelia Jordan died in 1909, intestate, leaving as heirs-at-law two sons, Sherman T. and Parker C., a daughter Mabel, and the children of a deceased daughter. William H. Sisson is the administrator of the estate.

Writ oe Entry, to foreclose a mortgage. Plea, the general issue. Trial by the court and verdict for the plaintiff.

<p>Case, for negligence. Trial by jury and verdict for the plaintiff. Transferred from the April term, 1910, of the superior court by Chamberlin, J. The ground upon which the action proceeded was that the defendants negligently failed to maintain their station at Jefferson Junction in a suitable condition for the accommodation of waiting passengers, and that the plaintiff’s intestate, while a passenger, suffered unnecessary exposure to the weather by reason of such negligence, and contracted a severe cold which caused her death. The defendants’ motions for a nonsuit and the direction of a verdict in their favor were denied, subject to exception.</p> <p>Upon cross-examination of a physician called by the plaintiff, the following question was excluded, subject to exception: “Now in making out the death certificate of a person that died, cause of death exopthalmic goitre and contributing cause heart disease, the existence of the goitre ten years, if that were changed right around, and the cause of death was heart disease and the contributing cause goitre, you would see nothing strange about that, would you?”</p> <p>The following question, propounded by the defendants to a qualified physician called by them, was excluded, subject to exception: “Assuming this woman had goitre, was in the weakened condition that I have described in my previous question; assuming that she started from Jefferson Highlands on a stormy morning early, snow falling rapidly and the wind blowing so that men would not work out that forenoon; that she rode from two and one half to three and one half miles; that she got into a hot car and rode from Jefferson Highlands out to Jefferson Junction; that she went through snow and into the station, the station being cold; that she waited there fifteen minutes, then she got into a hot car, rode down to Bemis, arriving a little past nine o’clock in the morning; that she left the car and walked a distance of something like twenty-one rods up a steep — quite a steep — hill; that after she got home she found her feet damp, clothes wet, and that she had a chill, and that was followed by a cold of a grippy nature' — a grip cold: Could you possibly say where she contracted that grip cold?”</p>

Libel eor Divorce, filed September 10, 1909. The libelee appeared specially and filed an answer alleging, in substance, that long before the present proceeding was begun she instituted a suit for a divorce in Massachusetts against the libelant, who did not appear, and that on December 10, 1909, a divorce nisi was granted her.

Appeal, from a decree of the probate court disallowing the plaintiffs claim that certain legacies in the will of Mary M. Dow were subject to the inheritance tax. Transferred without a ruling from the November term, 1910, of the superior court by Pike, J., on an agreed statement of facts.

Case, for negligence. Trial by jury and verdict for the plaintiff. Transferred from the April term, 1910, of the superior court by Wallace, C. J., on the defendants’ exception to the denial of their motion for the direction of a verdict in their favor.

Bill in Equity, praying that the defendants be restrained from cutting certain “wood, timber, and growth” on the Osgood farm in Milford and from interfering with an entry upon the land and a cutting of said “wood timber, and growth” by the plaintiff.

Bill in Equity, for specific performance. Transferred from the January term, 1910, of the superior court by Pike, J., on the defendants’ exception to a decree for the plaintiff.

Assumpsit, to recover $22.60 paid to the defendant by the plaintiff to redeem certain real estate in the town of Landaff, which had been advertised to be sold for taxes assessed thereon for the year 1909. Pacts found, and case transferred from the September term, 1910, of the superior court, by Chamberlin, J. The defendant was tax collector of the town of Landaff in 1909-10.

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

Case, for negligence. Trial by jury and verdict for the plaintiff.Transferred from the September term, 1910, of the superior court by Pike, J. The defendant conducted a four days’ fair at Rochester in August 1909, and agreed with one Kelly for a balloon ascension and parachute jump each day. Kelly was to furnish the balloon, which was abandoned in the air when the operator made his descent.

<p>A contract for services not to be performed within a year is not taken out of the statute of frauds by a memorandum which states nothing further than the pecuniary consideration; and parol evidence is not admissible to supply the essential parts of the agreement which are omitted from the writing.</p> <p>Assumpsit, to recover under a special contract for' services not to be performed within a year. Trial by the court. Transferred from the September term, 1910, of the superior court by Pike, J., on the plaintiffs’ exception to an order of nonsuit.</p> <p>The plaintiffs, Charles and Margaret A. Maisch, had been negotiating with the defendants for employment for the term of one year, and the defendants’ agent sent Charles the following telegram: “They will give you and your wife twelve hundred. Let Mack know. John Kinney.” The plaintiffs understood that this related to the employment they had talked about, accepted the offer the next day, and entered upon the work about two weeks later. The defendants failed to employ the plaintiffs for a year, and this suit was brought to recover the damages caused by such failure. •</p>

Assumpsit. Trial by jury and verdict for the defendant. Transferred from the May term, 1910, of the superior court by Chamberlin, J. Roscoe M. Flanders, the defendant’s intestate, was the owner of a gristmill and sold grain at retail.

<p>Motion, to amend a declaration. Transferred from the October term, 1910, of the superior court by Plummer, J.</p> <p>Prior to the April term, 1910, of the superior court, the plaintiff brought an action of assumpsit against the defendants to recover damages for breach of a contract of employment made by their agent in settlement of a claim for personal injuries sustained by the plaintiff while in their employment. Shortly before the October term, 1910, the plaintiff filed a motion asking leave to amend his declaration by striking out the count in assumpsit and substituting a count in case for personal injuries. At the hearing on the motion at the October term, it appeared that before filing the motion both parties had taken depositions in the case, and that after it was filed the defendants took the plaintiff’s deposition and inquired into the facts and circumstances concerning the injury declared on in the count in case. The reason for asking leave to file the amendment was that in taking the deposition of the defendants’ claim agent the plaintiff learned that the agent denied havirig authority to make the contract of settlement relied upon in the count in assumpsit. It did not appear that the defendants would stand differently if the amendment were allowed, than they would if the plaintiff brought a new action in case; while if the motion was denied, and the plaintiff was required to bring a new action, he would be put to additional expense in the way of sheriff, entry, and counsel fees, would also have to bear the expenses already incurred, including depositions taken by himself and attendance upon those taken by the defendants, and would be chargeable with the costs of the present action, including two voluminous depositions taken by the defendants.</p> <p>The motion was granted, it being found that its allowance was necessary to prevent gross injustice. Rule 16 of the superior court was suspended by the trial justice in the exercise of his discretion. The defendants excepted to both orders, and their exceptions were allowed so far as they presented questions of law.</p>

Case, for negligence. Trial by jury and verdict for the plaintiff. Transferred from the January term, 1910, of the superior court by Pike, J. Edith Bolis, the plaintiff’s intestate, was killed by collision with the defendants’ train upon a highway grade crossing. At the time of her death she was about thirteen years old. She was driving alone in an open wagon, immediately following a carriage in which were three adults.

<p>Case, for negligence. Trial by jury. Transferred from the September term, 1910, of the superior court by Chamberlin, J., on the plaintiffs’ exception to an order of nonsuit.</p> <p>December 8, 1908, the plaintiffs entered into a contract with the defendants for the shipment of twenty-eight horses from Indianapolis, Indiana, to Woodsville, New Hampshire. The contract,, which was executed in Indiana, provided that the defendants should not be liable as common carriers and that their liability for injuries, to any one animal arising from their negligence or that of their servants should not exceed $75. The horses were loaded in a car furnished by the defendants^ who accepted the animals for transportation at a point on the Belt Railroad. When the car was delivered to the connecting carrier, it was found to be so much in need of repair that it was necessary to hold it for twelve hours. The defeend ants voluntarily undertook to care for the horses while rpairswere being made, and sent them to the barn of one Reardon, where they were exposed to the weather and four of them contracted, pneumonia.</p> <p>It was agreed that if the plaintiffs are entitled to recover full damages, they should have judgment for $750 with costs.</p>

Foreign Attachment. Facts found, and case transferred without ruling from the April term, 1910, of the superior court, by Chamberlin, J. White’s claim against the Fernald-Woodward Company is based on a partnership debt, and an attachment has been made of the individual funds of Woodward, a member of the partnership, in the hands of the Orient Insurance Company. The claim of Decker against Woodward is for his individual debt.

Petition, for the revision of rulings of referees. The petitioners’ appeal from an assessment of taxes was by agreement sent to referees, who were directed to hear the parties and report the facts. Soon after the hearings were begun, the petitioners submitted questions to the referees, with a request for rulings thereon. The questions and rulings are in part as follows: “1.

<p>Case, for negligence. Trial by jury and verdict for the plaintiff. Transferred from the March term, 1910, of the superior court by Chamberlin, J. The defendants submitted the case upon their exceptions to the denial of motions for a nonsuit and the^direction of a verdict in their favor.</p> <p>The plaintiff’s evidence tended to prove that she was a passenger on the defendants’ railroad from Nashua to Franklin; that when the train reached Concord she took a seat just vacated by another passenger, the window beside which was open; that soon after the train started the sash fell and injured her arm, the accident occurring about five minutes after the train left Concord and after the conductor had passed through the car to collect the tickets.</p> <p>The plaintiff called as a witness one Clark, employed for ten years in the window adjusting department of the Laconia Car Works, who was asked the following question: “Assuming that a car is standing still and a window is open, that the train starts and runs perhaps five minutes until it reaches full speed, if the window then falls to what you would attribute the fault, if any?” Subject to exception, the witness answered: “To some part of the sash not being properly adjusted. The sash might be put part way up and bind, and drop down in that manner. It might not have been raised high enough for the bolt to engage the catch, and bind in the jamb so it would drop down by the car moving and working as they usually do, and the catch might possibly be out of order.” He further testified that he did not know of anything which could cause the sash to fall, except that the frame might bind, thus preventing the sash going up far enough to permit the bolt to engage the catch, or that some defect might exist in the locking device. Upon cross-examination, he testified in substance that a window so constructed or in such condition that the bolt might partially engage and hold the sash up for a time was not properly adjusted.</p>

<p>When it is apparent that the insufficiency of a bequest for the establishment and maintenance of a hospital must have been known to the creator of the trust, it is presumed that he intended the trustees should hold the property until, with its accumulations and additional contributions, it should be adequate for the declared purpose; and in such case the administration of the trust begins when the trustees first receive the property from the executors.</p> <p>Where a testator’s plan to provide hospital accommodations for those living in a certain vicinity has become impracticable by reason of the establishment of a similar institution by others, the court has power to carry out the intention of the donor by ordering that the trust property be used for the benefit of the hospital already in operation.</p>

Petition, under section 1, chapter 66, Laws 1893, to determine the title to the office of solicitor for the county of Merrimack, to which the defendant was declared ele cted. Trial before Plummer, J., who transferred the case from the October term, 1910, of the superior court. At the biennial election in November, 1910, there were 5,371 undisputed ballots for each party to this cause.

<p>The language of a will is to be given a literal interpretation, in the absence of evidence that the testator used it in a different sense.</p> <p>When the language of a will is plain and unambiguous, no intention on the part of the testator is to be sought after other than the one so expressed.</p> <p>Words in a will which indicate the testator’s intent to give a fund to nephews and nieces after the death of grandchildren cannot be rejected as meaningless, merely because a literal interpretation of them will postpone a division of the fund among the legatees until the decease of the members of a younger generation.</p> <p>Where a will names the testator’s son as residuary legatee and gives him the income of a fund which, after his death and that of all his lawful heirs, is to be divided among nephews and nieces, the income accruing after the son’s death falls into the residuum and is payable to his estate during the lifetime of his children.</p>

Complaint for Bastardy, filed by Ida Parent, upon which the defendant was found chargeable'. Assessment of damages by Wallace, C. J., at the January term, 1910, of the superior court. November 22, 1907, the complainant, who was then pregnant by the defendant and unable to support and care for herself, was obliged, to go to the county farm. January 27, 1908, she gave birth to a child.

Bill in Equity, to reform and enforce a contract of guaranty. The defendants demurred generally.

<p>Where members of a firm engaged in the sale of intoxicating liquor bring suit on the bond of a copartner to save them harmless from loss by reason of his conduct of the business, a decree of the board of license commissioners revoking the license is conclusive proof of a violation of its provisions, but does not furnish evidence of personal wrongdoing on the part of any of the licensees.</p> <p>In such ease, evidence that one member of the firm was in charge of the premises where the license was exercised is competent to prove his personal responsibility for the violation.</p> <p>Debt, on. a bond. The plaintiffs introduced evidence that a second-class license for the sale of intoxicating liquors at Hotel Rockingham, in Salem, was issued to the plaintiffs and the defendant as partners, on May 1, 1908. Ferguson gave the plaintiffs a bond conditioned to save them harmless from any loss by reason of his conduct of the bar at the hotel. A complaint was made to the license commissioners that the licensees had violated their license, and upon hearing the license was revoked. The plaintiffs paid the license bond. Ferguson was running the hotel at the time the violation occurred. All the evidence was received subject to the defendant’s exception. A nonsuit was ordered, and the plaintiffs excepted. Transferred from the January term, 1910, of the superior court by Plummer J.</p>

Assumpsit, to recover the balance due on five carloads of box boards. Plea, accord and satisfaction. Trial-by jury and verdict for the plaintiff. Transferred from the November term, 1910, of the superior court by Wallace, C. J., on the defendant’s exceptions to the denial of a motion for a nonsuit and to the admission of evidence.

Case, for personal injuries alleged to have been caused by the negligence of the defendants. Transferred from the October term, 1908, of the superior court by Chamberlin, J., on the defendants’ exceptions to the denial of their motions for a nonsuit and the direction of a verdict in their favor and to the argument of the plaintiff’s counsel.

Case, for obtaining money from tbe plaintiff by fraud and false representations.. Trial by jury and verdict for the plaintiff. Transferred from the September term, 1910, of the superior court by Wallace, C. J., on the defendant’s exception to the denial of a motion for the direction of a verdict in his favor.

Case, for negligence on the part of the defendant town in repairing a highway, whereby the plaintiff’s intestate, while employed by the defendant as a laborer in making the repairs, received fatal injuries. The declaration alleges that the town was doing the work voluntarily under the provisions of chapter 35, Laws of 1905, and chapter 60, Laws of 1907.

<p>The statute providing that persons cohabiting and acknowledging each other as husband and wife, and generally reputed to be such, for the period of three years and until the decease of one of them, shall thereafter be deemed to have been legally married, cannot be so construed as to validate a polygamous marriage or to legitimize the offspring of such a union.</p> <p>Trespass quare clausum fregit. Plea, the general issue with a brief statement alleging soil and freehold. Transferred from the December term, 1910, of the superior court by Pike, J.</p> <p>Only two questions were in dispute respecting the title to the land. The jury were excused from returning a general verdict, but were required to answer the questions, which they did. Their answers and other facts are stated in the opinion.</p>

Bill in Equity, for an injunction against the collection of rates for fares and freights in excess of the amount permitted by law.

<p>Case, for personal injuries resulting in the death of the plaintiff's intestate. Trial by jury and verdict for the plaintiff. Transferred from the October term, 1910, of the superior court by Chamberlin, J., on the defendants' exceptions to the denial of a motion for a nonsuit and to the admission of evidence of the declaration of the intestate, made about ten minutes after the accident and after he had been carried to his home, to the effect that the car ran over him.</p>

<p>A widow cannot maintain an action in her own name upon a promissory note given to her individually for a debt due to her husband’s estate; but after her appointment as executrix she may be permitted to amend the writ and prosecute the suit in her representative capacity.</p> <p>Assumpsit, upon a promissory note. Trial by jury. The defence was failure of consideration. Upon the facts hereinafter stated, the court directed a verdict for the defendant, and the plaintiff excepted. Transferred from the November term, 1910, of the superior court by Pike,, J.</p> <p>The plaintiff is the widow of George G. Mann, who died March 17, 1908, and was named in his will as sole legatee and executrix. The will has been proved, but had not been proved when the note in suit was given. No administration has been taken out upon the estate. Shortly before April 6, 1908, the plaintiff represented to the defendant that her late husband had given her to understand that he was working for the defendant for wages for some years preceding his death, and she requested him to make payment to her therefor. In compliance with this request, on April 6, 1908, the defendant paid the plaintiff a certain sum of money and gave the note in suit, which is payable to her individually.</p>

Case, for personal injuries. Trial by jury. Transferred from the March term, 1910, of the superior court by Chamberlin, J., on the plaintiff’s exception to an order of nonsuit. The plaintiff had worked upon a planer in the defendants’ sawmill for about a year prior to his injury, the first six months as helper and the balance of the time in charge of the machine.

Assumpsit, upon a policy of insurance on the life of the plaintiff’s husband. Trial by jury. A nonsuit was ordered by Chamberlin, J., at the March term, 1910, of the superior court, and the plaintiff excepted. At the time the policy was issued and thereafter the person insured was engaged in the liquor business. The defendant is a fraternal beneficiary association.

Assumpsit, to recover for a lot of carpeting. Transferred from the January term, 1911, of the superior court by Mitchell, J., on the plaintiffs’ exception to an order of nonsuit. May 1, 1909, the defendants leased the hotel on Appledore Island to the Nunns Hotel Company for the term of three years.

Assumpsit, in the first case, to recover a tax of $18,935.71 assessed against Maria R. Adams in Jaffrey for the year 1907. Facts found by the court. Maria R. Adams died April 27,1907. She had resided in Jaffrey, and on April 13 gave a sworn inventory of her taxable property to. the selectmen. She gave in some real estate and $10,000 in personal property. Acting upon this, the selectmen assessed her tax at $238, which was paid June 12.

Case, for personal injuries alleged to have been caused by the defendants’ negligence. Transferred from the December term, 1910, of the superior court by Pike, J., on the plaintiff’s exception to an order of nonsuit. The defendants maintained a storehouse upon their land in the village of Groveton and kept therein supplies for their logging business, including dynamite and copper caps for exploding the same. The building was kept locked.

Petition, for fees for travel and eighty days attendance as a witness upon the superior court. November 29, 1910, the plaintiff was summoned to testify before the police court of Rochester upon a complaint charging one Soucy with the illegal sale of intoxicating liquor.

Trover, for a Reo touring car taken by the plaintiff, who is sheriff of the county, on a writ against Alfred Lauziere, and receipted for by the defendants on August 7, 1908. Trial by the court. Transferred from the December term, 1910, of the superior court by Pike, J., on the plaintiff’s exception to an order of nonsuit.

Petition, for leave to extend the tracks of the Sullivan County Railroad from Lebanon to Cornish and for that purpose to take the lands of certain objecting owners.

Petition, for a writ of certiorari. Facts found, and case transferred from the January term, 1911, of the superior court, by Wallace, C. J. At the election in November, 1910, the moderator of Ward 8, Manchester, declared one Wenzel elected to the office of alderman. Thereupon the plaintiff petitioned the board of mayor and aldermen, alleging that he received more votes for alderman than Wenzel and that he should be given the office.

Trespass de bonis. Trial by the court and verdict for the defendant, to which the plaintiffs excepted. Transferred from the January term, 1911, of the superior court by Mitchell, J. April 1, 1904, the plaintiffs leased a store for the term of two years to Elizabeth Hayes, who installed a steam heater in December of the same year.

Assumpsit. The first action was brought upon a personal judgment againbt Rosa B. Stockwell, a resident of Winchester, for taxes assessed against her in that town for the years 1903 and 1904. The second action was for the recovery of non-resident taxes assessed for the years 1900, 1901, and 1902, against certain lands in Winchester standing in the name of Thomas E. Stockwell, a non-resident, as owner. Trial by the court.

Case, for negligence. Trial by jury and verdict for the plaintiff. Transferred from the October term, 1910, of the superior court by Mitchell, J. During the cross-examination of the defendants’ superintendent, the plaintiff’s counsel asked the following question: “Is this tannery company of yours one of the Armour or Swift Company's?” An exception was taken, whereupon the court excluded the question, counsel withdrew it, and the jury were instructed to disregard it.

<p>Bill in Equity, to establish the plaintiff’s rights under a mortgage. Trial by the court. Transferred from the October term, 1910, of the superior court by Mitchell, J.</p> <p>In 1889, Moody Towns, father of the plaintiff and the defendant, conveyed his farm to the defendant and took back a mortgage conditioned to “provide for both in sickness and in health, for the said Moody Towns and his wife, . . . during their natural life or either of them, furnish them with clothing, care, nursing, and doctoring, and at their decease give them a Christian burial. And shall furnish and give Flora S. Towns a home upon said premises so long as she shall want or desire one.” Moody and his wife died a few years later.</p> <p>The plaintiff Flora is blind. She was a member of her father’s household when the mortgage was given. Her general health was good and she rendered service about the household, receiving no compensation except her support. Until 1909, she continued to live with the defendant in the same manner, except when she was away on account of physical disability. At these times he did not pay any of her doctor’s bills. Her clothing was to a certain extent provided by her sisters. She has no property aside from her rights under the contract. In 1909, the defendant sold the farm without her consent. Thereupon this bill was filed and it was agreed that the money value of her rights should be determined and paid to her.</p> <p>The court found that the plaintiff was entitled to recover for board and lodging, less the value of her services in the household, .and assessed the damages at $1,400. It appeared that the plaintiff has some earning capacity over and above the value of her services rendered to the defendant. The defendant excepted to a refusal to allow him for the full value of her earning capacity and to the ruling that he was obliged to furnish board as well as lodging. The plaintiff excepted to the refusal to allow her for clothing and medical attendance.</p>

Bill in Equity, praying that an. instrument proved and allowed as the last will of Orson Day be declared null and void, and for the specific performance of a certain contract entered into by Orson and the plaintiff. Trial by the court.

Case, against the defendants as surgeons, for negligently amputating the plaintiff’s arm which had been injured and required surgical .attention. There was also a count for trespass or assault. Trial by jury and verdict for the plaintiff.

Assumpsit, upon a promissory note for $2,000, dated March 13, 1908, payable to the plaintiff, and signed by the defendant as surety. Trial by the court. Transferred from the December term, 1909, of the superior court by Chamberlin, J. The original consideration for the note was a loan by the plaintiff, July 14, 1906, of $5,000 to one Decker, the principal upon the note in suit.

Petition for Partition. Transferred without ruling from the March term, 1911, of the superior court by Plummer, J., on an agreed statement of facts.

Complaint, by the attorney-general, charging Joseph Moore with unprofessional conduct in his office as attorney.

Case, for personal injuries. The declaration alleged, in substance, that the defendants maintained a private nuisance by the side of a highway adjacent to a lot of land, which consisted of an uncovered ditch running parallel with the highway and along said lot; that the landowner had a private way from his premises across the ditch to the highway; that the ditch was made without the owner’s consent and rendered travel over his private way unsafe and dangerous; and that the…

Bill in Equity, by the administrator de bonis non with will-annexed of the estate of Gideon Hardy, praying for advice as to his-duty under the will.

Assumpsit, for the expenses of the funeral of Alphonse Labranche and insurance upon his life. Transferred without ruling from the May term, 1910, of the superior court by Plummer, J., on an agreed statement of facts. The defendant is a fraternal beneficiary association, providing by assessments for sick benefits and funeral expenses, and also having an insurance fund provided by a separate assessment of $1.50 for each member.

Assumpsit, to recover for work done and i als furnished in the partial erection of an addition to the defendant’s hotel. Trial at the October term, 1910, of the superior court before Mitchell, J., who reported his findings and rulings with the parties’ exceptions thereto.

Debt. The plaintiff, having recovered a judgment against the Maynesboro Club in an action for breach of contract, sought to enforce it against the defendant, an officer and shareholder of the club, by virtue of sections 5, 14, and 16, chapter 150, Public Statutes. Trial bjr the court and verdict for the defendant, to which the plaintiff excepted.

Bill in Equity, by the heirs of Mary Elizabeth Martin, praying that a deed of real estate from Mary to the town of Newcastle be set aside or declared to be a mortgage, and for an accounting. Trial at the October term, 1910, of the superior court before Chamberlin, J., who ruled that upon facts found by him the bill should be dismissed. To this ruling the plaintiffs excepted.

Bill in Equity, to enjoin the incumbrance of the streets shown upon a plan of lands in Alton. Trial by the court. Transferred from the November term, 1910, of the superior court by Pike, J. In 1889, the Winnipesaukee Land Company owned a tract of land on the lake shore in Alton and made a plan of the same, dividing it into house-lots with appropriate streets, including one following the shore line the entire length of the. tract and called Lake Shore avenue.

Petition for Partition. Facts found, and case transferred from the November term, 1910, of the superior court, by Wallace, C. J. The plaintiffs are the heirs of Ellen J. Canney; the defendants are the heirs of her husband, Wesley. Ellen and Wesley owned in common in equal shares the land of which partition is asked, the value of the whole being less than 81,500. Ellen died February 26, 1909, intestate. Wesley died June 19, 1909. Neither ever had issue.

<p>Against the objection of either party, questions of law arising in the superior court may be transferred to and determined by the supreme court, without a ruling by the former tribunal and exception thereto.</p>

Motion, by the heirs of Sally H. Proctor, that they be allowed counsel fees and costs in the above action out of the trust fund. The court ruled as matter of law that upon the facts disclosed in the case they were not entitled to the allowance and on that ground denied the motion, and the heirs excepted.

<p>One who wrongfully procures an injunction against the cutting of timber must defend in his own right, and cannot avoid liability on the ground that the action brought by him might legally have been resorted to by others.</p> <p>Where an injunction is granted on condition that the plaintiff file a bond to save the adverse party harmless from all loss, cost, damage, or expense arising from the suit, the prevailing defendant is entitled to taxable costs and whatever damage or expense he has been subjected to on account of the proceeding, the entire amount of his recovery being limited by the sum named in the bond.</p>

Assumpstt, upon an accident insurance policy. Trial by the court. Transferred from the January term, 1910, of the superior court bjr Plummer, J., on the plaintiff’s exception to an order of nonsuit. The policy provided that affirmative proof of any injury must be furnished to the defendant within thirty days from the termination of disability, and that no action at law upon the policy should be maintained after six months from the date when proof of the injury must be filed.

Bills in Equity, involving rights growing out of the will of Hiram Barker and codicils'thereto. In the first action Charles B. Barker is plaintiff, and the defendants are Edwin G. Eastman, trustee, Clara Barker Berry, and Hiram H., Ella M., Will T., and Eda F. Barker. In the bill filed by Eastman, trustee, the defendants are Charles B. Barker and all the defendants named in the first bill except Eastman. Trial by the court.

Bill in Equity, brought by creditors of the New England Breeders’ Club to enforce the individual liability of its stockholders. The bill w'as filed December 17, 1908, by the Hub Construction Company and the Boston & Maine Railroad; and in October and November, 1909, the town of Salem and the American Bank Note Company were joined as plaintiffs. The defendants are the Breeders’ Club and certain stockholders in that corporation.

<p>A personal judgment rendered in another state is not enforceable in an action of debt brought in this state unless the foreign court acquired jurisdiction of the defendant in the original proceeding.</p> <p>A court of a state cannot acquire jurisdiction of a non-resident corporation which neither does business nor owns property therein, by service of process upon a director or agent who is casually within such state upon his individual affairs.</p> <p>The federal constitution does not require that full faith and credit should be given to a personal judgment rendered in another state against a party over whom the court had no jurisdiction.</p> <p>Debt, upon a judgment rendered by the city court of the city of New York. The defendant is a corporation organized under the laws of New Hampshire and does business in Manchester. At the time of the commencement of the action in New York it had no place of business in that state and no property there. None of its officers, agents, or directors resided there, and it had not designated any one in that state upon whom service of process could be made.</p> <p>The plaintiff is a resident of New York. Having a claim against the defendant on account of goods sold, he instituted a suit against it in New York for the collection of the amount alleged to be due him, and on March 2, 1908, caused a summons to be served on one Flack, a director and the managing agent of the defendant, who was passing through New York on a pleasure trip. The service was made in accordance with the statute of that state.</p>

<p>The expenditure of school money for the transportation of pupils is a matter within the discretion of the school board; but this discretionary power must be exercised in such manner as will best subserve the interests of education and give to all scholars as nearly equal advantages as may be practicable.</p> <p>A school board cannot properly decline to furnish necessary transportation for a pupil during any part of the school year, and thereby practically deny him the enjoyment of free education, when the granting of such privilege for at least a portion of the time would afford him substantial benefit and would not materially diminish the advantages accorded other scholars in the town.</p>

Information, filed March 30, 1911, charging the illegal sale of two quarts of whiskey. Plea, not guilty. Trial by the court, and verdict of guilty to which the defendant excepted. Transferred from the March term, 1911, of the superior court by Plummer, J.

Indictments, for embezzlement. In the first case the subject-matter of the embezzlement is described as “property of said N. Rosenthal & Son, to the amount of six hundred ninety-five dollars,” and in the second indictment as “a large amount of property of said N. Rosenthal & Son, his master, to wit, furs of various kinds, of the value of six hundred ninety-five dollars.” In each case the respondent moved that the indictment be quashed because the offence was not fully and…

Case, for personal injuries. Trial by jury. Transferred from the January term, 1911, of the superior court by Mitchell, J. At the close of thé evidence the defendant moved that a verdict be directed in his favor, on the ground that there was no evidence to warrant a finding of his negligence and due care on the part of the plaintiff. The motion was granted, and the plaintiff excepted.

January 6, 1908, the plaintiffs’ secretary wrote the defendant Prentiss, as follows: “Mr. Baker told me recently that you were going to cutting of the Richardson lot from which we were to have the box lumber. I would like to know whether you would like to enter into a contract now, or when the lumber is on sticks, or ready to ship.

Assumpsit, to recover the amount due upon a promissory note for $500, dated April 11, 1910, payable in two months to the order of the plaintiffs, signed by Arthur W. Charles as maker, and purporting to be indorsed by the defendant. The defendant pleaded the general issue and seasonably denied the signature purporting to have been made by him. Trial by jury and verdict for the plaintiffs for the amount of the note.

Bill in Equity, against Henry J. Putnam, administrator of the estate of Charles W. Redington, and certain heirs-at-law of Charles. The plaintiffs filed a general demurrer, and the questions of law arising thereon were transferred without ruling from the April term, 1911, of the superior court by Wallace, C. J. =

<p>Foreign Attachment. The question relates to the charge-ability of the trustee. About July 5, 1910, the principal defendant kept a pool room in Concord in which he had a stock of merchandise which he sold in bulk to the trustee for $136.12 and received that sum in cash from him. Afterward and before this action was brought, the trustee disposed of the goods in the regular course of trade. At the time of the sale the parties did not know of the statute in regard to the sale of a stock of goods in bulk (Laws 1909, c. 69) and did not comply with the conditions specified therein. Upon these facts the superior court held the trustee chargeable for $136.12, and he excepted. Transferred from the April term, 1911, of the superior court by Wallace, C. J.</p>

Bill in Equity, to establish the plaintiff’s title to a certain farm by means of a resulting trust. This is the same case that is reported in 72 N. H. 241. After a further hearing before a master on certain facts or issues, the superior court ordered the bill dismissed, and the plaintiff excepted. Transferred from the April term, 1911, of the superior court by Pike, J.

Appeal, from a finding of county commissioners awarding the appellants nominal damages for land taken for highway purposes. Trial by the court. Transferred from the September term, 1910, of the superior court by Wallace, C. J., on an agreed statement of facts.

Bill in Equity, to enjoin a .sale of the assets of 'the Jackson Company to the Nashua Manufacturing Company. Held: at which it was voted (subject to the injunction proceedings) to make the sale and wind up the company, to sell the stock of the Nashua Company not taken by Jackson Company stockholders, and to distribute the proceeds among them. At this meeting 490 shares were voted in favor of the sale and 104 against it.

Bill in Equity, to delimit a portion of the plaintiffs’ right of way. The plaintiffs contend that Some of the defendants are occupying and that others claim the right to occupy parts of their right of way which they acquired by the exercise of eminent domain. The plaintiffs’ original location was similar to that of the Concord & Claremont Railroad, which is set forth in Northern R.R. v< Railroad, 27 N. H. 183.

Assumpsit, for tuition paid to St. Johnsbury Academy by tbc plaintiff for the attendance of his daughter after January 23, 1911. Trial by the court. Transferred from the October term, 1911, of the superior court by Mitchell, J. The plaintiff resides in the defendant district, in which there is no high school.

Petition, for the abatement of a tax assessed under section 9, chapter 59, Public Statutes. Transferred from the October term, 1911, of the superior court by Wallace, C. J., on an agreement that if notice to the plaintiff prior to the assessment was essential to the validity of the tax, it is to be abated.

Bill in Equity, The defendants’ demurrer was overruled, and they excepted. Transferred from the May term, 1911, of the superior court by Chamberlin, J.

Case, for negligently injuring the plaintiffs’ horse, being the same action reported 75 N. H. 568. Trial by jury and verdict assessing the damages. At the beginning of the second trial the court “ruled that the only question to be tried was as to the value of the horse, and that the matter of liability, or the validity of any contract under which the horse was being shipped at the time, were not in issue, both having been settled in the former trial.” The defendant excepted.

The child had several sisters, who were all young. There was evidence that on a few occasions the trackmen had seen them sitting on the wall, and that once, several months before, they were seen playing on the track. There was no evidence that the child had been seen by any one from the time she left the house, shortly before the accident, to the time when her screams were first heard by the trackmen. Two of the crew were watching the' fire where it was set.

Assumpsit, for board, nursing, and bedding destroyed. Trial by the court. Transferred from the April term, 1911, of the superior court by Mitchell, J. In December, 1907, one Hautaula, a boarder in the plaintiff's family, was taken sick with the small-pox. A physician, who was also a member of the board of health of the defendant town, was first called to treat him, and subsequently the patient was quarantined by the board in the plaintiff’s house.

Petition, for the abatement of taxes assessed for the year 1910 upon a certain dam, flowage, and water rights and privileges, situated in the town of Walpole, against the Bellows Falls Canal Company as owner. Trial by the court.

Case, for personal injuries. The question whether upon any view of the facts hereinafter stated it can be found that the defendants were in fault was transferred from the October term, 1911, of the superior court by Plummer, J. September 29, 1909, the plaintiff bought a ticket from West Swanzey to Brattleboro, Vermont, and return, good only on September 29 and 30, which entitled him to ride on the defendants’ trains between West Swanzey and South Vernon, Mass., and on their…

Probate Appeal, from a decree allowing the appellee to prosecute a petition for proof in solemn form of the will of Samuel Putnam. The appeal was dismissed in the superior court, and the plaintiff excepted. Facts found, and case transferred from the November term, 1911, of the superior court, by Wallace, C. J. Samuel Putnam died in 1909, testate.

Libel for Divorce. After the defendant had begun proceedings for divorce on the ground of desertion, the plaintiff filed this libel, in which she describes herself as a resident of Maine, charges her husband with extreme cruelty, and prays for a divorce, alimony, and the custody of their minor children. She admits that she left her husband, but says that he drove her away.

Bill in Equity, brought by George W. Glover, for the construction of the will of his mother, Mary B. G. Eddy, and for advice as to the validity of certain provisions thereof. The defendants are the executor and five residents of Massachusetts who constitute the board of directors of the First Church of Christ, Scientist, in Boston.

Bill in Equity, by the trustee under the will of John Hargate, asking the advice of the court as to whether the beneficiaries for life under the will are entitled to the gross income or the net income of the trust estate.

<p>An assignment of a liquor license by the holder thereof is not valid as against the state unless it is made in comformity with section 12, chapter 95, Laws 1903, and is assented to by the board of license commissioners.</p> <p>The fact that a dealer in intoxicating liquor made a common-law assignment of all his property for the benefit of creditors and delivered his license to the assignee, prior to the commission of an offence for which the license was revoked, does not constitute a defence to an action against a surety upon the license bond.</p> <p>Petition, for the cancellation of a bond to the state given by one Howe, who on May 1, 1905, was granted a third-class license for the sale of liquor at 365 Elm street, in Manchester, by the defendants, the board of license commissioners. Howe filed the bond, which was executed by himself as principal and the plaintiff as surety to secure his strict adherence to the terms of the license. He thereupon engaged in the liquor business at the place designated and so continued until August 4, 1905, when he made a common-law assignment for the benefit of his creditors of all his property to one Bodwell, who accepted the same and took full possession of the premises. Howe also delivered to Bodwell the liquor license. August 20, 1905, Howe unlawfully entered the premises and gave some of the liquor remaining there to two little girls. Upon complaint for this act to the board of license commissioners, a hearing was had on September 15, the license was revoked and can-celled, and a demand was made for the amount of the bond. In December, the plaintiff brought this petition for a cancellation of the bond. No objection was made to the form of the proceeding. The question whether upon the facts the prayer of the petition should be granted, or whether the petition should be dismissed, was transferred without a ruling from the May term, 1911, of the superior court by Plummer, J.</p>

Probate Appeal, from the disallowance of a claim against the decedent’s estate. After the appeal was taken the defendant summoned the plaintiff to give his deposition. Before it was taken counsel agreed to waive the defendant’s obligation to file the deposition, as required by section 11, chapter 225, Public Statutes.

Foreign Attachment. White brought suit against the FernaldWoodward Company, a partnership of which one Woodward was a member, and summoned the Burbank Company and the Orient Insurance Company as trustees. The Burbank Company disclosed that they were indebted to Woodward upon a promissory note for $6,000, but had given him an order on the Insurance Company for $3,060.84, which was to be applied in payment of the note.

Trespass quare clausum. Trial by the court. Transferred from the April term, 1911, of the superior court by Pike, J. The plaintiff bought the premises in question in 1907 and paid the purchase price from his own money. His wife having refused to live there unless the title was taken in her name, the deed was made to her, and they lived on the premises until 1910.

Debt, to recover the forfeiture given by section 1, chapter 244, Public Statutes, for the willful removal of timber trees. Trial by jury and verdict for the plaintiff.

<p>A city ordinance which requires the licensing of hackney-coaches, cabs, and other vehicles used for the public conveyance of passengers is applicable to motor vehicles so employed, although enacted prior to their advent.</p> <p>The statute providing that no municipal ordinance which regulates the speed or restricts the use of automobiles shall have force or effect (Laws 1911, c. 133, s. 15) does not deprive a city of the power to require the licensing of motor vehicles employed within its limits for the public conveyance of passengers.</p>

Case, for personal injuries sustained by the plaintiff while in the defendants’ employment and alleged to have been caused by their negligence. Trial by jury and verdict for the plaintiff. Transferred from the September term, 1911, of the superior court by ■ Chamberlin, J., on the defendants’ exceptions to the denial of their motions for a nonsuit and the direction of a verdict in their favor.

Coos, Case, for personal injuries caused by the fall of a staging upon which the plaintiff was at work laying brick. Trial by jury, resulting in a disagreement. At the close of the plaintiff’s evidence, which was all that was introduced, the defendants moved for a non-suit. The motion was denied, and they excepted.

<p>In'the ordinary contract of letting there is no warranty that the premises are safe or suitable for the uses intended.</p> <p>A landlord is not liable to his tenant for an injury resulting from an unsuitable condition of the premises unless there is a warranty of fitness, or such a concealment of secret defects which caused the injury as to amount to fraud or deceit on the part of the lessor.</p> <p>Evidence that a landlord was accustomed to examine leased premises for the purpose of determining whether repairs were necessary does not warrant the conclusion that he thereby discovered a concealed defect which was unknown to the tenant and is assigned as the cause of the latter’s injury.</p> <p>Case, for negligence resulting in the death of the plaintiff’s intestate. Trial by jury and verdict for the plaintiff. Transferred from the February term, 1912, of the superior court by Plummer, J.</p> <p>June 16, 1910, the plaintiff’s intestate, who was his infant daughter, was drowned in a privy vault upon the premises occupied by the plaintiff as tenant of the defendant (a woman seventy-six years old), which he hired of her May 1, 1910. At the conclusion of the evidence the defendant moved that a verdict be directed in her favor, on the ground that there was no evidence that she knew of the dangerous condition of the vault cover claimed to have caused the injury. The motion was denied, subject to exception.</p>

<p>Assumpsit, for goods sold and delivered. Trial at the October term, 1911, of the-superior court before Pike, J., who reported the facts at the request of the parties.</p> <p>In the spring of 1907, the defendant gave the plaintiffs’ salesman a written order for shirts, the price of which amounted to $235.25, subject to a discount of six per cent if paid within seventy days from date of shipment, which was to be made September 1. The goods were shipped in September and received by the defendant September 18. Upon examination, the defendant found they were not as ordered, the label on each shirt differing from the one described in the order, and he refused to accept them for this reason. There was considerable correspondence between the parties. January 25, 1908, the plaintiffs wrote the defendant, acknowledging that the error was due to the carelessness of their salesman, and continuing: “All we can say to you is this, that if you will return the shirts wo will remove the tickets, put the garments in good order, and reship them to you without expense to you.” Accordingly the defendant shipped the shirts to the plaintiffs, who replaced the labels with others such as the defendant desired, and reshipped the goods to him some time after February 17. They were received by the defendant February 27. March 16, he wrote the plaintiffs: “These shirts are fall and winter shirts and were ordered for that trade. It will be impossible for me to dispose of them until next fall, and I do not propose to buy them for spring shirts. The negligee and flannel shirts I can use all right and they will be accepted at the terms on the bill, six per cent sixty extra from date of last shipment to me. . . . This is not my mistake, and I do not see why I should load myself up with unsalable goods at this season.”</p> <p>March 17, the plaintiffs drew on the defendant through a Concord bank. When the draft was presented to the defendant, he learned that the plaintiffs had given instructions for its collection if not paid. March 20, the defendant returned all the shirts except seventeen by freight to the plaintiffs. Those which he retained had been damaged through his carelessness; and in his letter of March 20, refusing to accept the shirts, he enclosed his check for the billed price of the seventeen. The plaintiffs returned the check, refusing to accept it or to receive the goods from the railroad company, which now holds them. The plaintiffs’ letter of January 25, 1908, induced the defendant to believe, and reasonably, that if permitted they would put the shirts in the condition called for by the contract and would then deliver them to him as completed, he to have seventy days credit after the date of the last shipment, which was the first shipment at which the goods were in accordance with the contract.</p> <p>The court found a verdict for the defendant, upon the ground that if the defendant could not rightfully rescind the contract when he returned the shirts on March 20, the bill was not due when the suit was brought, April 11, 1908. The defendant tendered the plaintiffs’ attorneys $18.62, the price of the seventeen shirts, and paid that sum into court. The plaintiffs excepted to the verdict, to the ruling that the suit was prematurely brought, and to the finding of the court as to the defendant’s understanding of the plaintiffs’ letter of January 25.</p>

About the time of this agreement Tinglof became interested with Hultman in the premises, and by an agreement between themselves Tinglof was to finance the purchase and become interested in the premises as owner. He at once moved into the buildings and has occupied them ever since. When Hultman made his first payment of $50, he took a receipt from the plaintiff, as follows: “Chichester, N. H., October 1, 1906.

Assumpsit, to recover for cutting and hauling 5,000 cords of pulp-wood. The quantity of wood delivered by the plaintiffs was the only matter in issue. Trial by the court. Transferred from the October term, 1911, of the superior court by Pike, J., on the plaintiffs’ exceptions to a remark of the defendants’ counsel and to the exclusion of certain evidence.

<p>A power-plant owned by a railroad company and used to generate electricity for the operation of its trolley lines and the lighting of various buildings is not a part of the “road,” nor real estate used in the “ordinary business” of the corporation, and is taxable in the town where it is situated.</p>

Case, for negligence. Trial by jury and verdict for the plaintiff. Transferred from the September term, 1911, of the superior court by Chamberlin, J., on the defendant’s exception to the denial of a motion for a nonsuit. The facts are stated in the opinion.

<p>Assumpsit, to recover $12.32 paid for 616 miles travel from Berlin to Concord and $14 paid for hotel charges. Trial by the court. Transferred from the December term, 1911, of the superior court by Pike, J., on an agreed statement of facts.</p> <p>The items of expense which the plaintiff seeks to recover were incurred in attending a hearing before the governor and council in December, 1909. The plaintiff was then a member of the board of police commissioners of the city of Berlin, having been appointed under chapter 160, Laws of 1905. September 30,1909, charges were preferred by the city council of Berlin against the police commissioners. The seventh and eighth charges alone concerned the plaintiff and were as follows: “7th: That the said police commissioners neglected to raid certain places in said Berlin after having been so requested, making it necessary for private individuals to take steps to secure evidence of violations of the criminal laws. 8th: That said police commissioners illegally issued orders relative to certain places in said Berlin, concerning the sale of intoxicating liquors.”</p> <p>November 22, 1909, the city council passed the'following resolution:</p> <p>“Whereas, on the 30th day of September, 1909, by vote duly authorized, the city council preferred certain charges of official misconduct against the police commissioners of the city of Berlin, to His Excellency, the Governor of the state of New Hampshire; and</p> <p>“Whereas, the governor has appointed December 1, 1909, at the council chamber in Concord, New Hampshire, as the time and place of hearing evidence in support of said charges; and</p> <p>“Whereas, in order to offer evidence in support of said charges, it will be necessary for the city to summon witnesses to attend said hearing, and employ counsel to assist the city solicitor in presenting said evidence and in looking after the interest of the city in all matters pertaining to said hearing; therefore</p> <p>“Be it resolved, that the expense of summoning witnesses and all other expenses connected with said hearing be defrayed from the miscellaneous appropriation of the said city.</p> <p>“Be it further resolved, that the presentation of the city’s interests be left with the solicitor, and he be, and hereby is, authorized and instructed to employ such additional counsel as may be deemed necessary by him.”</p> <p>The plaintiff was duly notified by the governor and council of the charges and that a hearing thereon would be had before them at Concord on December 1, 1909. A hearing was begun on that date and adjourned to December 28, when it was completed. The plaintiff attended both hearings and in so doing incurred the items of expense which are the subject of suit. He was not summoned as a witness on behalf of the city, but appeared in answer to the notification from the governor and council. The charges were not sustained.</p>

Assumpsit, on an accident insurance policy issued to the plaintiff’s decedent, Eugene L. Osgood. Trial by jury and verdict for the plaintiff. Transferred from the December term, 1911, of the superior court by Mitchell, J., on the defendant’s exceptions to the denial of motions for a nonsuit and the direction of a verdict in its favor. The insured was struck by a locomotive while he was walking on a path beside the track of the Grand Trunk Hailway.

At the time of the conveyance to Boss and for many years prior thereto, the buildings conveyed had been used as a paint shop and have been since so used. In the passageway on the east side of the building nearest the street, there was a ladder-rack built of joists. The rack was thirty-five feet long, two feet ten inches wide, and seven feet high, and was roofed over.

<p>Where a will directs that the income of a trust fund shall be expended for the support and maintenance of a son of the testatrix, as the trustee “shall deem judicious and proper,” the right of the beneficiary to receive the benefit of any part of the income is dependent upon the discretion of the trustee; but such discretionary power is not to be exercised in an arbitrary or unreasonable manner, and is subject to judicial revision.</p> <p>In such case, the varying circumstances of the beneficiary are properly taken into account in determining the amount of aid which should be afforded him from time to time, and reasonable expenditures may be made for the benefit of his wife and minor children, in accordance with the general intention of the testatrix.</p>

Bill in Equity, for partition and an accounting. The defendant answered and filed a cross-bill asking that his title be confirmed and that the deed under which the plaintiffs claim title be cancelled.

Case, for negligently causing the death of the plaintiff’s intestate. Transferred from the October term, 1911, of the superior court by Pike, J. When the case was called for trial the defendant moved for a continuance upon the ground that he had just filed a petition in bankruptcy. The motion was denied, and the defendant excepted. Thereafter the defendant was defaulted and the damages were assessed by the court.

Assumpsit, to recover for board and nursing furnished to the defendant’s testator. Transferred from the January term, 1912, of the superior court by Chamberlin, J., on the plaintiff’s exception to an order of nonsuit.

Case, for personal injuries. Trial by jury and verdict for the plaintiff. Transferred from the January term, 1912, of the superior court by Pike, J., on the defendant’s exceptions to the denial of motions for a nonsuit and the direction of a verdict in his favor.

<p>"Where a physician has given an affidavit as to the physical condition of a witness, in support of an application to take depositions, the fact that the motion was denied by the court is not admissible to impeach the credibility of the affiant’s testimony in a subsequent proceeding for the assessment of damages.</p> <p>A clearly incompetent and prejudicial statement of fact contained in an interrogatory propounded to a witness is no less improper than a declaration to the same effect and furnishes sufficient cause for setting aside a verdict.</p>

<p>Petition, for the assessment of damages under the flowage act. The question raised by the demurrer is whether the plaintiff may recover damages for the flowing out or taking of the head or falls of the stream located upon her land, but which she has neither utilized nor developed. Transferred without a ruling from the October term, 1911, of the superior court by Pike, J.</p>

Bill in Equity, for the specific performance of an alleged contract. Transferred from the January term, 1912, of the superior court by Mitchell, J. The plaintiffs are sons and daughters of deceased uncles and aunts, and the defendants are two of the surviving uncles and aunts, of John M. Harrington, who died in February, 1908, intes. tate.

Case, for personal injuries sustained by the plaintiff while •employed in the rubber shop of the defendants’ shoe factory at Claremont. Trial by jury and verdict for the plaintiff.

<p>The supreme court has power to revise the findings of the state board of equalization upon an appeal, but it cannot revise the rulings made by that tribunal in a proceeding before it.</p> <p>Although the supreme court does not ordinarily consider a question of law when there is no provision for judgment, it may do so at any stage of the proceedings when it appears that a final disposition of the controversy will be hastened thereby.</p> <p>Under section 1, chapter 64, Public Statutes, and the amendments thereto, the property of railroad corporations should be taxed at a rate as nearly equal as may be to the average rate upon all other taxable property throughout the state, and not at the average rate imposed upon such property as is in fact taxed. In determining the value of “other property” for the purpose of assessing the taxes of railroad corporations, the state board of equalization is not restricted to the returns of local assessors, but is required to investigate the subject for itself and to correct such returns if any property is found to have been undervalued or to have escaped taxation.</p> <p>The rules of evidence applicable in ordinary judicial proceedings are to be observed! upon the trial of an appeal from an assessment of taxes.</p>

<p>Where one member of an association lias taken adverse possession of the common property, an action for an accounting brought by a fellow-member is barred by the statute of limitations unless begun within six years from the time the plaintiff knew or should have known of the wrongful act.</p>

Assumpsit, for medical services rendered to the defendant while-she was a minor living with her father and supported by him. Trial by jury and verdict for the plaintiff. At the close of the evidence the defendant’s motion that a verdict be directed in her favor was denied, subject to exception. After the verdict the court, upon the defendant’s motion, ruled as a matter of law that the evidence was insufficient to support it, and the plaintiff excepted.

Case, for negligence resulting in the plaintiff’s injury while in the defendants’ employ. Trial by jury and verdict for the plaintiff. Transferred from the October term, 1911, of the superior court by Pike, J., on the defendants’ exceptions to the denial of their motions for a nonsuit and the direction of a verdict in their favor, to the refusal of the court to give certain requested instructions, and to portions of the charge.

Case, for personal injuries. Trial by jury and verdict for the plaintiff. Transferred from the April term, 1912, of the superior court by Plummer, J. The plaintiff’s evidence tended to prove the following facts: The plaintiff was injured in an accident which occurred at the station of the Boston & Maine Railroad at Claremont Junction, on the evening of September 5, 1910.

Case, for negligence. The action was entered in the superior court during the lifetime of the original defendant, James S. Brown, who duly appeared by counsel. Brown died prior to the May term, 1909; and during that term, on June 3, at the request of the plaintiff, a writ of scire facias was issued against the defendants as executors of Brown’s will, commanding them to appear at the September term of said court to answer in said action.

Appeal, from a conviction in the police court of the city of Manchester charging the defendants with a violation of the provisions of chapter 15, Laws of 1911, in not complying with a rule of the state board of health requiring loaves of bread exposed for sale to be wrapped in paper. The case was tried in the superior court without a jury by Wallace, C. J., at the January term, 1912, resulting in a verdict of guilty.

Case, for personal injuries. Trial by jury and verdict for the defendant. Transferred from the May term, 1912, of the superior court by Mitchell, J. While the plaintiff and the defendant were driving in the same direction upon a public highway in Hudson, the defendant’s horse ran into the rear of the carriage in which the plaintiff was riding, and as a result of the collision the plaintiff was thrown out and injured.

Petition, by a guardian, for advice as to the rights of her wards under the will of Noah S. Clark. The facts were found, and the case transferred without ruling from the September term, 1912, of the superior court, by Pike, J.

Information, brought under section 12, chapter 63, Laws of 1897. Transferred from the April term, 1912, of the superior court by Pike, J., on an agreed statement of facts. The act of the respondent upon which the state relies to uphold the information consisted in displaying upon a building in Portsmouth, in which she had an office, the following sign: “Dr. Julia J. Chase.

Assumpsit, to recover the loss sustained by the plaintiffs through the defendants’ failure to ship lumber as directed. Trial by the court and verdict for the plaintiffs.

Case, for negligently killing the plaintiff’s intestate, Frank W. Garland. Trial by jury. At the close of the plaintiff’s evidence the defendant’s motion for a nonsuit was granted, subject to exception. The facts are stated in the opinion. Transferred from the February term, 1912, of the superior court by Plummer, J.

<p>The admission of immaterial evidence is sufficient cause for setting aside a verdict when it is apparent from the manner of its introduction and the use attempted to be made of it that the objecting party was prejudiced thereby.</p> <p>Trespass quare clausum. Plea the general issue, with a brief statement alleging title in the defendant by deed and by adverse possession. Trial by jury and verdict for the defendant. Transferred from the May term, 1912, of the superior court by Pike, J.</p> <p>The line in dispute is described in the defendant’s deed (dated June 12, 1899) as follows: “Thence southerly and easterly on said hteirs’ land to a stone standing in the bed where the brook formerly ran, being the corner of Leonard Fairbanks’ land.” The parties agreed on the southerly course of this line to a point marked B on a plan accompanying the case, and on the location of the stone in the brook marked E on the plan. The plaintiff claimed that the line ran in a southeasterly direction directly to this stone; the defendant claimed that it ran nearly east to a point marked C and then southerly to the stone or E. There was no fence on the line B to E claimed by the plaintiff. In the line B to C claimed by the defendant there was for a short distance a half-high stone wall topped out with brush and beyond that an ordinary brush fence. The defendant claimed that the brush fence marked the line of ownership and that he and his grantors had occupied to this fence adversely under a claim of right for over forty years. The plaintiff claimed that the brush fence was not intended as a division fence.</p> <p>The defendant called as a witness a civil engineer who made a survey of the premises. The plaintiff excepted to the following question asked this witness by the defendant: “What did you discover as to the direction of this line with respect to other old town lines?” In answer the witness testified that the direction of this and other lines of the defendant’s tract was the same as the average of original lot lines which he had surveyed in the town. There was no other evidence that the line in controversy was an original lot line.</p>

Assumpsit, for goods sold and delivered. Trial by the court {Stone, J.) and verdict for the plaintiff. The defendant excepted to the denial of his motion for a nonsuit. After the decease of the justice who presided at the trial, the case was transferred from the April term, 1910, of the superior court by Wallace, C. J., on a statement of facts prepared by counsel in the case.

Case, for personal injuries. Trial by jury and verdict for the plaintiff. The plaintiff was injured by the unexpected starting of the defendants’ train from which she was alighting. She supposed that the train had stopped at the West Rindge station, where she desired to leave it, but it had in fact stopped just beyond the station. It was dark and the station was unlighted.

Assumpsit. The two actions were tried together by Stóne, J., who found a verdict for Thyng in his suit for $615.34 and for Hussey in his suit for $410.13, and ordered execution to issue for $205.21, the balance due Thyng. In the first suit there was a plea of the statute of limitations as to items amounting to $269.20 not accruing within six years of the date of the writ.

Bill in Equity, for the construction of the will of Melvin B. Moore, which provides as follows: “I give and bequeath to my brother, Franklin Moore, one hundred and fifty ($150) dollars yearly his natural life, the same to be paid him by a trustee of my property. Said money shall be deposited in a savings bank and be paid to Frank Moore as herein ordered, the balance of said money to remain in bank until the year of our Lord, 1920.

Case, for personal injuries. Trial by jury. Transferred from the January term, 1911, of the superior court by Mitchell, J. At the close of the plaintiff’s evidence the defendants moved for a nonsuit on one of the issues of the declaration, namely, the defendants’ failure to provide a suitable place for the plaintiff to alight from their car, and that all the evidence bearing upon that issue be stricken from the record. The motion was granted, and the plaintiff excepted.

Bill in Equity, for the construction of the will of Elizabeth A. Livermore. Trial by the court.

Bill in Equity, filed August 2, 1911. By a resolution adopted December 14, 1911, the city council directed the city solicitor to discontinue the suit and instructed the mayor to arrange for a dismissal of the bill and an entry of judgment for the defendants. December 19, the mayor requested the court to dispose of the litigation in accordance with the resolution. The court thereupon dimissed the bill and ordered judgment for the defendants, and the city solicitor excepted.

Case, for negligence of the defendants resulting in the death of the plaintiff’s intestate. Trial by jury and verdict for the plaintiff. Transferred from the September term, 1911, of the superior court by Chamberlin, J. One point in issue was the speed of the car which collided with the intestate.

<p>Case, for negligence. The two suits are by husband and wife to recover for her personal injuries, and were tried together by jury. At the close of the plaintiffs’ evidence the defendant moved for nonsuits. The parties agreed upon the amount of damages, and that there should be judgments for the plaintiffs if there was evidence of the defendant’s fault. The motions for nonsuits were thereupon granted, and the plaintiffs excepted. Transferred from the September term, 1911, of the superior court by Chamberlin, J.</p>

Bill in Equity, to foreclose a mortgage. The defendant filed an answer denying the execution of the conveyance and also alleging that if she did it was to secure the payment of her husband's debt. Upon the trial the plaintiff produced evidence showing that the mortgage was given by the defendant to secure the purchase price of the property mortgaged, and that there was a default both as to interest and principal.

Case, for negligence causing the death of Margaret Duggan, the plaintiff’s intestate. Trial by jury at the December term, 1911, of the superior court. At the close of the plaintiff’s evidence and subject to his exception, the court (Mitchell, J.) withdrew the case from the jury and made certain rulings to which exception was also taken.

Indictment, for rape. The defendant excepted to a denial of his motion to quash the indictment on the ground that a witness who testified before the grand jury was incompetent. Transferred from the February term, 1912, of the superior court by Plummer, J.

Case, for negligence. Transferred from the April term, 1912, of the superior court by Mitchell, J. The plaintiff was employed by the Boston & Maine Railroad as head brakeman on a train running between Boston and Lowell, which also carried express matter in a car in front of the passenger coaches, and was injured by colliding with an express truck owned and controlled by the defendant.

On February 13, 1911, the speaker of the house of representatives requested the opinions of the justices of the supreme court upon the question of law propounded in the following resolution, which was adopted by the house of representatives on February 7: “Resolved, that the house of representatives, being in doubt as to its power under the provisions of the constitution of New Hampshire, hereby directs the speaker of said house to obtain the opinion of the supreme court…

On February 13, 1911, the speaker of the house of representatives requested the opinions of the justices of the supreme court in accordance with the following resolution, which was adopted by the house of representatives on February 7: “Whereas, it appears to the house of representatives that a tax at a uniform, specific rate, lower than that assessed upon property in general, on stock in public funds, stock in corporations, and money on hand or at interest, in view of the…

<p>On February 13, 1911, the speaker of the house of representatives requested the opinions of the justices of the supreme court in accordance with the following resolution, which was adopted by the house of representatives on February 9:</p> <p>“Whereas, a bill entitled ‘An act imposing a tax on legacies and successions/ known as Blouse Bill No. 227, has been introduced and is now pending in this house, the essential part of which for the purpose of the following resolution is the first section, which reads as follows:</p> <p>“ 'Section 1. All property within the jurisdiction of the state, real or personal, and any interests therein, whether belonging to inhabitants of the state or not, which shall pass by will, or by the laws regulating intestate succession, or by deed, grant, bargain, sale, or gift, made or intended to take effect in possession or enjoyment after the death of the grantor or donor, absolutely or in trust, to or for the use of the father, mother, husband, wife, lineal descendant, adopted child, or the lineal descendant of any adopted child, the wife or widow of a son, or the husband of a daughter of a decedent, shall be subject to a tax, for the use of the state, of one per cent of its value up to $25,000; of two per cent of its value in excess of $25,000 up to $50,000; of two and one half per cent of its value in excess of $50,000 up to $100,000; of three per cent of its value in excess of $100,000 up to $250,000; and of five per cent of its value in excess of $250,000; and administrators, executors, and trustees, and any such grantees under a conveyance made during the grantor’s life, shall be liable for such taxes, with interest, until the same have been paid; but no bequest, devise, or distributive share of an estate which shall so pass to or for the use of a husband, wife, child, or adopted child, except upon its value in excess of $10,000, shall be subject to the provisions of this act. When the personal estate so passing from any person not an inhabitant of this state shall consist in whole or in part of shares in any railroad or street railway company or telegraph or telephone company incorporated under the laws of this state and also of some other state or country, so much only of each share as is proportional to the part of such company’s right of way lying within this state shall be considered as property of such person within the jurisdiction of the state for the purposes of this act.’ Therefore,</p> <p>“Resolved, that the speaker of this house be directed to obtain the opinion of the supreme court as soon as possible, as to whether, if the act were passed, said section would violate any provision of the constitution, and, more particularly, as to whether any constitutional provision would be violated by the exemption of $10,000 of the value of legacies to widows and children, or by the levy of a rate of one per cent upon $25,000 of the value of such legacies as are included within the act, with higher rates upon the excess, as provided for in said section.”</p>

<p>The fact that an act is found in the office of the secretary of state with other public acts passed at the same session, and that it is signed by the speaker of the house and the president of the senate, with the approval of the governor attested by his signature thereon, is not conclusive evidence of its due enactment.</p> <p>The journals of the two houses of the legislature are to be treated as authentic records of the proceedings; and when it appears from them that an act was not passed by both branches of the legislature, the prima facie evidence furnished by its enrollment is overcome and it must be held invalid.</p> <p>In reaching the conclusions contained in opinions required by the governor and council under article 73 of the constitution, the justices of the supreme court are not authorized to receive evidence or to determine questions of fact.</p> <p>Where both houses of the legislature amend a bill by striking out a limitation upon an appropriation authorized by the measure, but the act as engrossed and signed by the governor contains the limitation in its original form, the entire provision for an expenditure is invalid, even to the extent permitted by the limiting clause.</p> <p>An act cannot be presented to the governor for his signature after a final adjournment of the legislature.</p> <p>The justices of the supreme court will not ordinarily give their opinions to the governor and council upon a question involving private rights.</p>

<p>The legislature cannot, conformably to the constitution, provide for the taxation of standing wood and timber at a rate less than that imposed upon property in general.</p> <p>It is within the power of the legislature to exempt certain classes of property from taxation by omitting them from the list of taxable estate, or by specially exempting them.</p> <p>The legislature may classify money at interest for purposes of taxation, as in chapter 83, Laws of 1911, tax one class, and exempt another.</p>

The constitutional convention of 1889, pursuant to authority assumed to be delegated to it by the legislature, fixed the time when such amendments as might be approved by the people should become operative. Laws 1887, c. 107, s. 8; Jour. Conv. 256.