Volume 77 — New Hampshire Reports

Assumpsit, on a fire insurance policy. Trial in the superior ■court at the January term, 1912, before Wallace, C. J., who transferred the case without a ruling, upon an agreed statement of facts and a finding based thereon to the effect that the plaintiffs were entitled to a verdict for $100 and interest from the date of the writ, unless they were precluded from recovering as matter of law. The facts are stated in the opinion.

Case, against the defendant railroad and ten insurance companies, for the use and benefit of the Queen Insurance Company of America, a duly organized corporation doing business in New Hampshire.

Case, for negligence. Trial by jury and verdict for the plaintiff. In addition to the general issue, the defendant set up a release. Transferred from the April term, 1912, of the superior court by Plummer, J., upon the defendant’s exceptions to the submission to the jury of the issues of a recovery under the last clear chance doctrine and of fraud in obtaining the release.

Foreign Attachment. The trustee in this action is a trustee under the will of Angeline F. Kennard, and the defendant is her surviving son.

<p>Where a trustee is directed to expend the income of the estate as he shall deem most beneficial to the cestui que trust, he is not chargeable in an action of foreign attachment brought to recover a debt contracted by the beneficiary, in the absence of evidence that his refusal to pay the claim was unreasonable or constituted an abuse of the trust.</p> <p>Foreign Attachment. Issue between the plaintiff and the trustee, who holds certain funds as a trustee under the will of Amos Webster, for the benefit of the defendant, a son of the testator. The plaintiff seeks to charge the trustee on account of these funds. The case was tried by the superior court (Mitchell, J.), and upon the facts hereinafter stated the trustee was ordered discharged, subject to the plaintiff’s exception. Transferred from the January term, 1912, of the superior court.</p> <p>The testator bequeathed to the trustee for the benefit of the defendant certain property “for the following purposes, viz: to pay over the net income of said property to my son, Cleon L. Webster, during his lifetime, in such sums and at such times as said trustee shall deem most beneficial to him. If by reason of my son’s physical or mental condition the income of my said property in said trustee’s hands is not sufficient to properly and comfortably support him, then said trustee is hereby authorized to expend, in addition to said income, so much of the principal as may be necessary to carry out the provisions and intention of this section, hereby giving and granting unto said trustee full authority to sell and convey said real estate, if in his judgment it shall be for the best interest of my son so to do. . . . And it is expressly stipulated, and said trustee is charged to see to it, that no portion of the income to be used for my said son is to be used to pay any bill contracted by said son, nor is said income to be so chargeable.” In a codicil to his will, the testator directed the trustee “to pay the net proceeds of the property left to him in trust for my said son or for his benefit in monthly instalments. In the seventh article of said will, in charging my said trustee to charge my estate with no bills contracted by my said son, my intent was and is to say, no bill contracted by my said son prior to my decease. ”</p> <p>The defendant gave the plaintiff an order upon the trustee to pay the debt in suit; but the trustee, in the exercise of his discretion under the will, declined to accept the order and refused to pay the debt. The court found that the trustee properly exercised his discretion in this respect.</p>

Petition, for a writ of habeas corpus, brought by the father against the mother to recover the custody of their minor child, now four years of age, and Libel for Divorce, brought by the mother against the father in November, 1911, in which proceeding a divorce was granted in January, 1912, but which was brought forward for a hearing upon the prayer for custody.

Assumpsit. The declaration alleged that the plaintiff was induced to purchase stock of the defendant corporation by false representations on the part of its president and general manager; that it was agreed when she bought the stock that the same should be repurchased by the corporation within six months upon request; that a request for repurchase having been made in accordance with the agreement, the defendant corporation promised to pay her $1,000' upon her forbearing to…

Case, for personal injuries. Trial by jury and verdict for the plaintiff. Transferred from the May term, 1911, of the superior court by Pike, J., on the defendants’ exceptions to the denial of a ,motion for the direction of a verdict in their favor and to a remark of the plaintiff’s counsel in closing argument. The plaintiff was less than fourteen years old at the time of his injury.

Assumpsit, for the balance of express charges for the transportation of a carload of horses from Indianapolis, Indiana, to Woodsville, New Hampshire. Transferred without ruling from the September term, 1912, of the superior court by Mitchell, J., on an agreed statement of facts. The parties signed a written contract for the service in question, by the terms of which the plaintiff was to receive $250, and the value of each horse was limited to $75.

Case, for personal injuries sustained by the plaintiff while in the defendants’ employ. Trial by jury and verdict for the plaintiff. Transferred from the April term, 1912, of the superior court by Wallace, C. J., on the defendants’ exceptions to the denial of their motions for a nonsuit and the direction of a verdict in their favor.

Writ oe Entry. Transferred without ruling from the September term, 1912, of the superior court by Plummer, J., on an agreed statement of facts. The plaintiffs are heirs-at-law of Olinthus Doe.

Case, for ejecting the plaintiff from the defendants’ train at Hinsdale, on October 1, 1909. Trial by the court. Transferred from the October term, 1912, of the superior court by Chamberlin, J. The case is the same as that reported in 76 N. H. 388. The plaintiff bought a ticket from the defendants’ agent at Hinsdale, for passage from Hinsdale to West Swanzey, and boarded the train.

Petitions, for abatement of taxes. The plaintiff is a resident of Haverhill and is the owner of real estate in the defendant town, which is taxed to .him as non-resident. The petitions were referred to the tax commission. The plaintiff claimed before the commission that in appraising his land for taxation the value of the growing trees thereon should be excluded, but the commission included the same as a part of the value of the land.

Bill in Equity, alleging in substance that the plaintiffs are indebted to Cameron for cutting from their land and delivering to the other defendant, the Berlin Mills Company, a large quantity of logs which the latter purchased of them and for which it is still indebted to them; that it was agreed between the plaintiffs and the company that the company should pay a certain price per thousand feet for the logs delivered to it, the quantity to be determined by the company’s…

Probate Appeals. Trial by the court. Facts found, and case transferred from the October term, 1912, of the superior court, by Mitchell, J. The appellant, Grace M. Brackett, is the mother of a son who is five years old. Frank H. Brackett is the boy’s father and Lizzie B. Brackett is his grandmother. The father and mother separated prior to March, 1912, and have not since lived together.

Case, for negligently causing the death of the plaintiff’s intestate, Solon W. Cate. Trial by jury and verdict for the plaintiff. Transferred from the October term, 1912, of the superior court by Mitchell, J., on the defendants’ exceptions to the denial of motions for a nonsuit and the direction of a verdict in their favor. Cate was employed by the defendants as a fireman.

Case, for personal injuries. Trial by jury. Transferred from the September term, 1912, of the superior court by Chamberlin, J., on the plaintiff’s exception to an order of nonsuit. The plaintiff was injured while stealing a ride on a freight train in the defendants’ yard at Nashua. A brakeman saw him hanging to the side of a box car at Stevens avenue, told him to get off, and threw coal at him when he failed to comply with the order.

Petition, by the trustee under the will of Parker P. Patch, for advice as to the persons entitled to share in a trust fund created by the will and the time of distribution.

Case, for negligence. Trial by jury and verdict for the plaintiff. Transferred from the September term, 1912, of the superior court by Pike, J., on the defendants’ exceptions to the denial of motions for a nonsuit and the direction of a verdict in their favor. The plaintiff was injured while operating a sliding saw-bench in the defendants’ mill.

Bill in Equity, to restrain the cutting and removal of certain wood and timber. Trial by the court.

Bill in Equity, for an injunction to restrain the defendants from interfering with a dam which causes the water of a stream to flow back upon their land. Trial by the court. The plaintiff claimed a right of flowage by virtue of a deed in his chain of title, dated May 10, 1819. The court found that the plaintiff’s predecessors in title abandoned the easement thus created and that the same was long ago extinguished. To this finding the plaintiff excepted.

Bill in Equity, for instructions as to the execution of a will. Transferred without a ruling from the February term, 1913, of the superior court by Plummer, J.

Bill in Equity, for specific performance and an accounting. Facts found by a master. Transferred without a ruling from the ■October term, 1912, of the superior court by Mitchell, J. In 1905, the plaintiff as owner of the land in controversy erected certain buildings thereon, including a water-tower and tank which were used in connection with a system of pipes to supply water to a large number of houses in the vicinity.

' Case, for negligence. Trial by jury and verdict for the plaintiff. Transferred from the October term, 1912, of the superior court by Mitchell, J., on the defendants’ exception to the denial of a motion for the direction of a verdict in their favor.

Petition, by tbe trustee under the will of Owen J. Lewis. Facts found by a master. Transferred without a ruling from the January term, 1913, of the superior court by Pike, J. The material portions of the will are as follows: “ First: To my wife, Clara E. Lewis, the sum of twenty thousand dollars. ...

Bill in Equity, to restrain the defendants from interfering with the plaintiffs’ right of way, extending from the Punkshire road to the plaintiffs’ land over land of the defendants. The court enjoined the defendants and they excepted. Transferred from the November term, 1912, of the superior court by Plummer, J.

Case, for negligently causing the death of the plaintiff’s intestate, Adolphus Greenwood. Trial by jury. Transferred from the September term, 1912, of the superior court by Mitchell, J., on the plaintiff’s exception to an order of nonsuit.

Case, for negligently maintaining a culvert in a highway in the defendant town, in consequence of which negligence the plaintiff’s cellar was flooded in March, 1911. Trial by jury and verdict for the plaintiff. Transferred from the April term, 1912, of the superior court by Pike, J., upon the defendant’s exceptions to the denial of motions for a nonsuit and the direction of a verdict in its favor. The plaintiff’s dwelling adjoins the highway on the north.

Probate Appeal, from a decree appointing the defendant guardian of two minor sons of Frank Hutchins, deceased, of whose intestate estate the defendant was administrator.

Petition, by the administrator with the will annexed of the-estate not before administered of Mary Baker G. Eddy, for advice-as to who will be entitled to the funds in his hands on the final-settlement of the estate. Transferred without a ruling from the: October term, 1912, of the superior court by Pike, J.

<p>A plea in. abatement which alleges the pendency of a prior suit for the same causéis bad on demurrer if the record of the prior action is not enrolled.</p> <p>Where it is doubtful whether a plaintiff can secure his rights under an original declaration or by an amendment thereof, justice does not require the abatement of a second suit for the same cause of action.</p> <p>In such case the superior court may order a consolidation of the suits, or by some other convenient procedure may protect the rights of both parties and afford them an opportunity to litigate the merits of their controversy.</p> <p>Case, under the federal employer’s liability act, to recover for personal injuries received while working for the defendant in the conduct of interstate commerce. The defendant pleaded in abatement that a prior suit for the same cause of action was pending. The plea sets out the declaration in the former suit (which counts upon negligence at common law only), but does not enroll the record. The plaintiff demurred to the plea. Transferred without a ruling from the April term, 1913, of the superior court by Plummer, J.</p>

Case, for negligence. Trial by jury. Transferred from the January term, 1913, of the superior court by Mitchell, J. The evidence tended to prove the following facts: December 4, 1911, the plaintiff was injured through the defendants’ negligent •operation of a street car in Nashua. He was duly licensed to operate an automobile and at the time of his injury was driving a motor car which was duly registered in Massachusetts.

Case, for negligence. Trial by jury and verdict for the plaintiff. Transferred from the January term, 1913, of the superior court by Chamberlin, J. The action was brought to recover for injuries received through a collision with a runaway horse belonging to the defendant.

’ Case, for negligence. Trial by jury and verdict for the defendant. Transferred from the September term, 1912, of the superior court by Chamberlin, J., upon the plaintiff’s exceptions to the admission of evidence.

Bill in Equity, for an injunction. Trial by the court and decree for the plaintiff. Transferred from the October term, 1912, of ■the superior court by Mitchell, J. The plaintiff is a taxpayer in Portsmouth, and the defendants are the mayor, treasurer, and three members of the police force of that city.

Case, for obstructing a right of way. Trial by jury at the November term, 1907, of the superior court (Stone, J., presiding) and verdict for the plaintiff. Transferred from the November-term, 1912, of the superior court by Pike, J. The plaintiff introduced in evidence three deeds from the Winnipiseogee Lake Cotton and Woolen Manufacturing Company to. Ernest C. Haserick.

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., on the defendants’ exceptions to the denial of motions for a nonsuit and the direction of a verdict in their favor. The plaintiff’s evidence tended to prove the facts hereinafter stated.

Bill in Equity, for the specific performance of a contract for the sale of real estate. Facts found by a master. Transferred from the May term, 1912, of the superior court by Plummer, J., without a ruling on, the question of law involved.

Assumpsit, for goods sold and delivered. Writ dated April 6> 1908. Plea, the general issue, with a brief statement that the cause of action did not accrue within six years. Trial by jury, resulting in a disagreement. The defendants excepted to the denial of motions for a nonsuit and the direction of a verdict in their favor.

Case, for negligence. Trial by jury. Transferred from the December term, 1912, of the superior court by Chamberlin, J., on the plaintiff’s exceptions to an order of nonsuit and the exclusion of certain evidence. The evidence tended to prove the facts hereinafter stated.

<p>The fact that the members of a board of aldermen were equally divided in their votes upon an election contest does not deprive the court of jurisdiction to entertain a petition for the correction of errors alleged to have been committed upon the trial.</p> <p>Upon the trial of an election contest, the superior court has no power to review the action of aldermen in deciding questions of fact within their jurisdiction; and it is incumbent upon the plaintiff in such proceeding to establish that his exclusion from office is due to a correctible error of law on the part of the inferior tribunal.</p> <p>In the trial of a contested municipal election, the aldermen constitute a court whose decisions upon questions of fact are final, but whose conclusions of law are subject to review; and upon request seasonably made, it is their duty to specifically pass upon material issues of law presented and to so far detail the grounds upon which their decision rests that it can be ascertained whether the conclusion reached was based upon reversible error.</p>

<p>Bill in Equity, for the specific performance of an oral ante-nuptial contract, made in consideration of the marriage which followed. The facts were found by a master, who reported that , nothing was done by the plaintiff as a part performance of the contract, except to enter upon the marital state. Upon this report the bill was dismissed, and the plaintiff excepted. Transferred from the April term, 1913, of the superior court by Pike, J.</p>

Bill in Equity, to foreclose a mortgage given by the defendant to the plaintiff as trustee for certain bondholders. Upon the. filing of the bill, a receiver was appointed who took possession of the property and sold it under order of the court. Certain unsecured creditors of the defendant petitioned for leave to appear, alleging that the mortgage was fraudulent.

<p>Whether a witness is hostile, and whether for that reason he may be impeached or contradicted by the party calling him, are questions of fact determinable by the trial court.</p> <p>An affidavit which contains statements relevant to material issues and inconsistent with the affiant’s testimony at the trial is admissible in evidence for the purpose of impeachment.</p> <p>Case, for the alienation of the affections of the plaintiff’s wife. Trial by jury and verdict for the plaintiff. Transferred from the April term, 1913, of the superior court by Plummer, J.</p> <p>The defendant introduced in evidence a libel for divorce brought by the plaintiff’s wife, charging extreme cruelty, setting forth specific acts, and alleging that by his inhuman conduct the plaintiff compelled her to leave his home. The plaintiff’s wife, who was hostile to his case, was called by him as a witness, and testified generally in support of.the charges in the libel and in denial of intimacy with the defendant. She identified her signature to an affidavit produced by the plaintiff’s counsel, which read as follows: “I wish to state to Mr. Stark, my husband’s attorney, that I am sorry that my divorce action was ever started between myself and my husband, Edward Dow. There never would have been this trouble between Edward and myself if I had not listened to the advice of George Dow; but I am through with George now, and I have acted unwisely and am sorry. I have informed Kirk D. Pierce, my attorney, to have my divorce action dropped.” The defendant excepted to the admission of the affidavit in evidence.</p>

Action of Tort, brought under a statute of Massachusetts (Acts 1907, c. 392, s. 1) for the negligent killing of the plaintiff’s intestate while a passenger on the defendant’s road. Trial by jury and verdict for the plaintiff. Transferred from the April term, 1913, of the superior court by Plummer, J., on the defendant’s exceptions to the denial of motions for a nonsuit and the direction of a verdict in its favor.

Case, for negligence. Trial by jury and verdict for tbe plaintiff for $750. The defendant’s motions for a nonsuit and the direction of a verdict in its favor were denied, subject to exception. Upon the plaintiff’s motion, the court sustained the verdict as to liability, set it aside as to damages, and ordered a new trial upon the latter issue. To this ruling the defendant excepted.

Bill in Equity, by the executor of the will of Ellen Kerin, praying for a construction of the second clause, which is as follows: “I give. . . . my real estate located at the corner of Pearl and Pine streets, . . . known as the Pattee house, to my son, John F. Kerin.” Facts found, by a master.

Indictment, alleging that the respondent, at a stated time and place, was “guilty of lascivious behavior by then and there willfully and unnecessarily exposing the private parts of the person of him, the said Ralmond A. Burgess, in the view of” three women. Trial by jury and verdict of guilty. Transferred from the April term, 1913, of the superior court by Chamberlin, J., on the respondent’s exception to the denial of his motion to quash the indictment.

Bill in Equity, brought by an attaching creditor of William A. Woods, and seeking to have land standing in the name of Adeline B. Woods decreed to be the property of William. Trial by the court. Upon the facts hereinafter stated, it was found that the bill should be dismissed. Transferred from the September term, 1911, of the superior court by Chamberlin, J., on the plaintiff’s exceptions to the findings and to the admission of certain testimony.

(1) Petition, for the abatement of an assessment made by the selectmen of Hampton under chapter 79, Public Statutes. The case is the same as that reported 76 N. H. 1. After the filing of that opinion, the plaintiffs amended their petition and made the Hampton Beach Improvement Company a party defendant.

Petition for mandamus, to compel the issuance of a junkdealer’s license to the plaintiff. The defendants are the selectmen of Hooksett. Having licensed one Isenberg as a junkdealer in that town, they declined to license the plaintiff, on the sole ground that the number of licenses to be issued was a matter for them to decide and that it was for the interest of the town that only one junk-dealer should do business therein.

Petition, for the construction of the first clause of the will of Lorana T. Stubbs, which reads as follows: “I give, devise, and bequeath to my beloved husband, Charles E. Stubbs, my homestead farm, . •. . provided my son, Arthur E. Bailey, is well provided for in board and clothes; and at my husband’s death the said Arthur E. Bailey is to inherit one thousand dollars from the above property, also his bed, bedstead, and bedding, and all my pictures.” Charles E. Stubbs is…

Writ of Entry. Plea, nul disseizin. Trial by the court and verdict for the plaintiffs.

<p>A servant cannot recover for injuries resulting from his attempt to thaw dynamite before an open fire, when the testimony of his witnesses discloses that he was warned by his immediate superior to keep the explosive away from the blaze and it does not appear that the master directed or acquiesced in the method adopted.</p>

<p>A majority of the members of the house of representatives who are qualified to act constitute the quorum requisite for the transaction of legislative business.</p> <p>A legislative enactment is not invalid merely because a roll-call of the house of representatives taken just prior to its passage disclosed the absence of a quorum, especially when the journal does not show that any member objected on the ground that the body stood adjourned, or that the speaker declared an adjournment.</p> <p>Where a statute does not expressly repeal existing laws upon the same subject and is not clearly designed as a substitute therefor, a legislative intent to restrict its repealing power to inconsistent provisions of prior acts is presumed; and this presumption is strengthened when the repeal is so limited by the express language of the later enactment.</p> <p>The act to unify the laws relating to the establishment of police commissions (Laws 1913, c. 148) was not intended to repeal in toto all earlier statutes creating such commissions for sundry municipalities throughout the state.</p> <p>The tenure of office of the police force of Nashua, appointed in accordance with the provisions of chapter 208, Laws 1891, was not terminated by the enactment of chapter 148, Laws 1913.</p>

Petition for mandamus. Facts found, and case transferred from the September term, 1913, of the superior court by Kivel, J.

Probate Appeal. Transferred -without a ruling from the, April term, 1912, of the superior court by Pike, J., upon an agreed statement of facts.

Case, for personal injuries resulting in the death of Erastus S. Boody, the plaintiff’s intestate, brought under chapter 163, Laws of 1911. Trial by juyy and verdict for the plaintiff. Transferred from the April term, 1913, of the superior court by Plummer, J., on the defendants’,exceptions to the denial of a motion for the direction of a verdict in their favor and to instructions of the court.

Case, for negligence. Facts agreed. The action was entered at the September term, 1912, of the superior court, when it was continued to the following January term, which began January 7. The plaintiff died on that day. At the September term, 1913, the defendants moved that the action be abated upon the ground that no administrator of the plaintiff’s estate had appeared before the end of the second term after her decease.

<p>Bill in Equity, for advice as to the duties of the executrix of the will of John E. Cotton. Carl Cotton, a trustee under the will, joined in asidng direction as to his duties. At the request of the parties, the case was transferred without a ruling from the September term, 1914, of the superior court by Kivel, J. '</p> <p>John E. Cotton died in 1912, testate, leaving an estate of about $300,000. He was survived by a widow, several nephews and nieces, and Alice R. Fletcher, who, though not related to him, had been reared in his family and was treated as his daughter.</p> <p>The will gives the widow a small amount of property outright, and a life interest in a fund of $50,000 and in two thirds of the remainder of the estate. After her death, one half of the residue of both funds goes to Mrs. Fletcher if she be then living, and the balance in smaller fractions to sundry relatives and charities. The other third of the remainder was given to Mrs. Fletcher. The widow waived the provisions of the will in her favor and took one half of the estate. This reduced the amount going to the remaindermen by about $100,000 and left to be applied in some way the income for her life of the $50,000 fund and of two thirds of the remainder. The material parts of the will are as follows:</p> <p>“Twentieth. On the death of my wife, I desire that the trust fund of $50,000 in the hands of Carl Cotton shall be divided as follows: One half to my daughter, Alice R. Fletcher, and if she shall not be living then to her issue, if any; one eighth to Carl Cotton, if he shall not be living then to his heirs; one eighth to G. Melrose Cotton, if he shall not be living then to his wife, and if she be dead then to their issue; one eighth to the Good Cheer Society of Nashua for a fund to maintain a district nurse, if said society is not in existence then to any other organization doing this kind of work; one eighth to be divided equally between the two trust funds established in sections marked ‘ninth’ and ‘tenth,’ to be invested with the same and to become a part of the same.” A codicil provides for the like distribution of the two thirds of the remainder.</p> <p>“Twenty-second. I desire that each of the following shall receive the amount set against their name each year until they are paid their bequest: . . . Mrs. Car] Cotton, Marlboro, N. H., $100; Mrs. G. Melrose Cotton, Fairfield, Me., $100.” These two persons are not otherwise mentioned in the will. The other payments provided for in paragraph 22 are to six legatees.</p>

Case, for negligently causing the death of the plaintiff’s intestate, George J. Poland, at a grade crossing in Lebanon. Trial by jury and verdict for the plaintiff. Transferred from the October term, 1913, of the superior court by Peaslee, J., on the defendants’ exceptions to the denial of their motions for a nonsuit and the direction of a verdict in their favor.

Assumrsit, to recover'back freight charges of $1,636 alleged to have been unlawfully collected from the plaintiffs by the defendants on certain shipments of lumber, to wit, the sum of $2 per car upon 818 carloads shipped between points on' the Concord & Montreal, Northern, Concord & Claremont, and Tilton & Belmont Railroads and other points situated on the defendants’ railway system.

Case, for negligence. Trial by jury and verdict for the defendant. Transferred from the October term, 1913, of the superior court by Pike, C. J. The plaintiff was injured on November 2, 1912, in consequence of a collision between the carriage in which he was riding and the defendant’s automobile driven by his chauffeur. The jury had a view of the premises where the accident occurred.

Bill in Equity, for tbe construction of the will of Horace T. Babb, of whose estate the plaintiff is the administrator with the will annexed.

Case, for negligence. The declaration alleges that the defendant while constructing a garage had the control and supervision of the plaintiff and other workmen, negligently failed- to furnish the plaintiff a safe place to work, and negligently commanded the plaintiff to work in an unsafe place, whereby the plaintiff was injured. The defence set up is a judgment in the defendant’s favor in a prior suit brought against him by the plaintiff to recover for the same injuries.

Case, for negligence. Trial by jury and verdict for the plaintiff. Transferred from the October term, 1913, of the superior court by Chamberlin, J., on the defendant’s exceptions to the denial of a motion for the direction of a verdict in its favor and to the exclusion of certain evidence.

Bill in Equity, asking advice as to the plaintiff’s duty under the will of George W. Burns.

Bill in Equity, to remove a cloud from the plaintiffs’ title.

<p>Where a grantee of real estate has not made expenditures in defence of a title which has partially failed, the expenses of litigation he is entitled to recover in an action for damages against a warrantor are limited to his taxable costs, in the absence of an express agreement "enlarging the defendant’s liability.</p> <p>Debt, in the first case for breach of a covenant in a deed, and in the second case for breach of a bond of warranty. Trial by the court and verdicts for the plaintiff, in the first action for his damages, and in the second for his damages and the expenses incurred in conducting the litigation. Transferred from the April term, 1912, of the superior court by Chamberlin, J.</p> <p>In 1908, the defendant corporation agreed to convey a large tract of land to the plaintiff by warranty deed; but when the time to make the conveyance arrived, he ascertained that the company had no record title to parts of the property and in consequence took a writing under seal from Charles H. and Myra L. Merrill warranting the title. The plaintiff has not incurred any expense in defending his title to the premises, but there has been a partial failure of title, and these suits are to enforce the liability of the Merrills as warrantors. The court ruled that the plaintiff could recover his expenses from the Merrills, but not from the company, and both he and the Merrills excepted.</p>

<p>Assumpsit, with a count for covenant broken. The action was brought to recover overpayments made upon a contract under seal for cutting, sawing, and sticking lumber upon a lot in Westmoreland, and was tried before a referee, who made a general finding for the defendant and reported the facts. At the May term, 1913, of the superior court, judgment was ordered for the defendant upon the report by Kivel, J., and the plaintiffs excepted.</p> <p>Under the contract between the parties, Flint agreed to guarantee the amount of lumber he received pay for, and was to be paid for each lot of 100,000 feet as soon as a report thereof was received by the plaintiffs, subject to delays of carriers and other delays beyond the plaintiffs’ control. The parties understood that the lumber was to remain on the sticks for a few months for the purpose of drying it before it was taken away for use or sale. The defendant sublet the job to one Pierce, by a contract in writing not under seal, which was in all respects like his contract with the plaintiffs except that the price paid was $5.25 per thousand feet instead of $5.50. The plaintiffs were informed of the subletting and did not object. Pierce begun work in January, 1908, and completed the job on October 17, 1908, with the exception of 29,000 feet which he sawed and stuck in January and February, 1909.</p> <p>Each piece of lumber was measured as it came from the saw and an account kept, the total of which was reported to the plaintiffs each week. An agent of the plaintiffs visited the mill as often as twice a week to see that the terms of the contract were observed and to keep informed as to the quantity sawed. Whenever a claim was made that 100,000 feet had been sawed, it was the agent’s duty to investigate the claim and report to the plaintiffs; and upon his approval of the claim after investigation, the plaintiffs sent a check for $550 to the defendant, who immediately sent a cheók for $525 to Pierce. The defendant requested the plaintiffs’ ageht not to authorize a payment until 100,000 feet on account of which it was made was stuck up. The plaintiffs had notice of the course of business under which the defendant paid Pierce immediately upon receipt of a check from them.</p> <p>The plaintiffs began to remove the lumber on September 19, 1908. All the lumber except ten carloads was shipped prior to January, 1910, and the last on April 10, 1910. During the progress of the work the plaintiffs paid the defendant upon the mill measurement for 2,000,000 feet. November 3, 1910, they notified him that the lot fell short of the amount paid for by a little over 200,000 feet and requested payment of the sum of $1,174.38 under the guaranty clause of the contract. The amount of lumber manufactured from the lot was 1,900,000 feet. Evidence offered by the plaintiffs of a well known usage among lumber operators to make final settlement for cutting, sawing, etc., according to the surveys of lumber made at the time of its sale was excluded, subject to exception.</p> <p>The referee found that the delay in asserting a claim under the guaranty clause until November 3, 1910, was unreasonable; and that the plaintiffs, by the way in which they dealt with the defendant and his subcontractor in making payments as hereinbefore stated, waived the guaranty. He also reported that, finding the intention attempted to be expressed by the guaranty clause to be that the guaranty should continue for a reasonable time after the completion of the work, he construed its provisions accordingly, and no exception was taken thereto by either party.</p>

<p>Evidence of habitual care on the part of an experienced section hand, who was killed by a locomotive while walking between the tracks in a railroad yard, is not sufficient to warrant a finding of his care on the occasion of his injury, when it appears that he was entirely familiar with the locality and its dangers, and the facts disclosed conclusively show that if he had exercised ordinary prudence he would have seen the approaching locomotive in time to avoid injury.</p>

Probate Appeal, from a decree denying the plaintiff’s petition for the appointment of an administrator of the estate of Solomon Jones. Trial by the court and decree for the defendant. Transferred from the May term, 1913, of the superior court by Pike, J. Solomon Jones died in March, 1864, leaving a widow, Lavina, and three children, Greenleaf, Florentine, and Sarah.

Bill in Equity, to enjoin the defendants from cutting timber from the plaintiff’s land, and for an accounting and damages for timber already cut. In the superior court, Chamberlin, J., ordered judgment for the plaintiff upon the report of a master and transferred the case from the May term, 1913, upon the exceptions stated in the opinion.

Indictment for arson, found by a grand jury drawn from and attending a term of court held in the western judicial district, and charging that the offence was committed in a town which is in that district. The respondent moved to quash the indictment because the grand jury was not drawn from the whole county. The case came on for trial at a term held in the southern district, and the respondent claimed a challenge to the array of petit jurors drawn from that district.

<p>Case, for personal injuries sustained by the plaintiff while in the defendant’s employ. Trial by jury and verdict for the plaintiff. Transferred from the April term, 1913, of the superior court by Young, J., on the defendant’s exceptions to the denial of motions, for a nonsuit and the direction of a verdict in his favor.</p>

Case, for negligence resulting in the death of William Powell, the plaintiff’s intestate. Transferred from the October term, 1913, of the superior court by Chamberlin, J., on the defendants’ exceptions to the denial of motions for a nonsuit and the direction of a verdict in their favor and to the admission of certain evidence. Powell was employed by the defendants.

Tbe case is the same as that reported 76 N. H. 523, where it was held that the evidence did not warrant the conclusion that the defendants had given the plaintiff to understand they would keep the spurs sharp upon the ladder which he was using at the time of his injury.

Bill or Interpleader, being the same case reported 74 N. H. 262. Trial by the court.

Assumpsit, to recover on the defendants’ promise to pay the plaintiff a sum of money owed to him by the Olsens. Trial by the court and verdict for the plaintiff. Transferred from the May term, 1913, of the superior court by Peaslee, J., on the defendants’ exception to the verdict. The Olsens admitted the defendants as partners in business, in consideration of their agreement to pay the plaintiff what the Olsens owed him.

<p>Where it appears that warnings which railroad employees failed to give after discovering a traveler in a position of danger might have enabled him to escape injury at a grade crossing, the question whether he was negligent in driving upon the track is immaterial.</p> <p>Evidence that a traveler injured at a grade crossing habitually listened for trains at that point is admissible to prove his care on the occasion in question, if his conduct as he approached the crossing is not fully disclosed.</p> <p>Case, for negligently causing the death of Amy A. Tyrrell, the plaintiff’s intestate, at a farm crossing. Trial by jury and verdict for the plaintiff. Transferred from the September term, 1913, of the superior court by Young, J., on the defendant’s exceptions to the denial of motions for a nonsuit and the direction of a verdict in its favor and to the admission of evidence that it was Mrs. Tyrrell’s habit to listen for trains at the crossing where she was injured.</p> <p>The plaintiff’s evidence tended to prove that Mrs. Tyrrell was driving a quiet horse attached to a long-bodied farm wagon. It was about six o’clock when she drove upon the crossing. The horse was walking. When she reached the gate she stopped the horse and waited until a man who was following the wagon opened the gate. She then drove upon the track and was struck by a locomotive running backward. The rear end of the wagon was between the rails. The natural obstructions were such that she could not look up the track in the direction from which the locomotive came until she was within seven or eight feet of the nearest rail. The engineer saw the horse approaching the track when its head was from five to eight feet from the rail and when the locomotive was 200 feet from the crossing. Although he applied the emergency brake, he neither sounded the whistle nor rung the bell. The locomotive was running down grade at a speed of about twenty-five or thirty miles an hour and was not working steam. If it had been properly equipped, or if the engineer had sounded the whistle as he approached the crossing or even when he first saw the horse’s head, the accident would not have happened.</p>

Petition for Partition. Trial by the court. Facts found, and case transferred from the April term, 1913, of the superior court, by Young, J. The plaintiff is the only grandchild of Eliza P. Philbrick.

<p>In an action brought under the federal employers’ liability act to recover for the death of a railroad employee, the fact that the injury in question resulted from the negligence of fellow-servants is not a defence.</p> <p>An argument of counsel which in effect urges the jury to consider the defendant’s financial ability in awarding damages exceeds the limits of legitimate advocacy, and, in the absence of explicit withdrawal of the improper suggestion and a finding that the trial was not rendered unfair, furnishes sufficient cause for setting aside a verdict.</p> <p>Case, for negligently causing the death of the plaintiff’s intestate, Henry Caverhill, who was employed as a section man by the defendants.- Trial by jury and verdict for the plaintiff. Transferred from the April term, 1913, of the superior court by Young, J., on the defendants’ exceptions to the denial of motions for a nonsuit and the direction of a verdict in their favor and to remarks of the plaintiff’s counsel in closing argument.</p> <p>The plaintiff relied upon the federal employers’ liability act (35 U. S. Stat. 65). Caverhill was struck and killed by one of two trains which met and passed at the spot where he was at work. If the engineer of either train had exercised ordinary care, the accident would not have occurred. The exception to the argument is stated in the opinion.</p>

Bill in Equity, praying that the Somersworth Grange be enjoined from refusing the plaintiffs admission to its hall and from depriving them of the privileges and benefits enjoyed by members of the organization in good standing.

Case, for fraud alleged to have been practiced upon the plaintiff by the defendants in obtaining from her an assignment of a mortgage upon a farm in Enfield. Trial by jury and verdict for the plaintiff. Transferred from the October term, 1913, 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. The evidence reported in the case is referred to in the opinion.

Petition, for the abatement of a tax. Transferred without a ruling from the December term, 1913, of the superior court by Sawyer, J., on an agreed statement of facts.

Assumpsit, upon an employer’s liability insurance contract, to recover the amount of a judgment rendered against the plaintiff because of an injury admitted to be within the terms of the policy. At the close of the plaintiff’s evidence the defendant moved for a nonsuit; and upon its agreement that there should be judgment for the plaintiff if the order was not sustained, the motion was granted subject, to exception. Other facts appear in the opinion.

Assumpsit, to recover for services as police officers. Transferred from the January term, 1914, of the superior court by Kivel, J., on a bill of exceptions. After the rescripts in Pollard v. Gregg, ante, 190, and Baker v. Barry, ante, 198, were transmitted to the superior court, the plaintiffs amended both actions by making the city of Nashua a party defendant and by filing declarations in assumpsit.

<p>Case, for negligently causing personal injury to the plaintiff, who was employed by the defendants in repairing their tracks at Exeter. It was alleged that while so engaged and while in the exercise of due care, he was struck and injured by one of the defendants’ trains. The defendants filed a brief statement, alleging in substance that at the time the plaintiff was injured he and they were both engaged in interstate commerce, that the plaintiff’s only remedy is under the act of congress known as the employers’ liability act, which precludes the bringing of a suit after two years from the time the cause of action accrued, and that this action was not brought until after the expiration of that period. Upon the plaintiff’s motion, the court rejected the brief statement, holding that the limitation in the federal law did not apply, and the defendants excepted. Transferred from the January term, 1914, of the superior court by Chamberlin, J.</p>

Debt, upon a liquor licensee’s bond. Trial by the court and verdict for the state, to which the defendants excepted.

Debt, upon a liquor licensee’s bond. Trial by the court and verdict for the state, to which the defendants excepted. Transferred from the January term, 1914, of the superior court by Sawyer, J., on an agreed statement of facts. Burke, the principal, stated in his application for a liquor license that he was the sole owner of the business.

<p>Where the sureties on a collecting agent’s bond have no knowledge of the principal’s prior employment by the obligee, they cannot evade liability after a default on the ground of an implied representation of honesty arising from the earlier relations.</p> <p>Where an employer has no knowledge of embezzlement by his collecting agent, a failure to notify the latter’s sureties of their principal’s arrears does not constitute such fraud or concealment as will release them from their obligation.</p> <p>A collecting agent’s sureties are not liable for his default under a contract of employment which was terminated prior to the execution of the bond.</p>

Petition for mandamus, to require the board of public works of the city of Manchester to recognize the relator as a duly elected member thereof. Transferred without a ruling from the May term, 1914, of the superior court by Pike, C. J., upon an agreed statement of facts.

Bill of Exceptions, allowed by Pike and Chamberlin, JJ., at the April term, 1913, of the superior court, after a verdict of guilty in the first degree upon an indictment charging the murder of John Stewart Hamilton at Hinsdale, on February 5, 1913.

Debt, to recover a forfeiture under section 4, chapter 151, Public Statutes. After the suit was brought the defendant died, and his executors, having been cited in to defend, moved that the action be dismissed upon the ground that it was brought to recover a penalty and for that reason does not survive. The question thus presented was transferred without a ruling from the December term, 1913, of the superior court by Chamberlin, J. (

Information, in the nature of quo warranto, to determine the defendant’s title to the office of a member of the board of instruction of the city of Portsmouth.

Covenant and Assumpsit, to recover taxes paid by the plaintiff upon land leased by it from the town.

Assumpsit, to recover the value of certain pew rights. Trial before Sawyer, J., at the January term, 1914, of the superior court, resulting in the following findings and rulings: The defendants are the trustees of the Methodist Episcopal Society of Newmarket, having succeeded to the trusteeship held in 1871 by John M. Towle and others, and to the title acquired by the latter to certain real estate in Newmarket.

Case, for negligence, to recover for injuries sustained by the plaintiff, a physician, in a collision between the defendants’ train and the carriage in which he was riding, at the Broadway crossing at Derry Depot. The ad damnum in the writ was $30,000. Trial by jury and verdict for the plaintiff for $15,000. Transferred from the January term, 1914, of the superior court by Sawyer.

Bill in Equity. Trial by the court. The plaintiff is the widow of Albert E. Rollins and administratrix of his estate. The defendant is Albert’s father and the only person entitled to share his estate besides the plaintiff.

Case, for negligence. Trial by jury and verdict for the plaintiff. Transferred from the October term, 1913, 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 and to remarks of counsel in argument. The facts are stated in the opinion.

<p>Where the owner of a burned building delivers to the insurers thereof vrithin the time limited a notice which is plainly intended as a fulfilment of the requirements as to proof of loss, the question whether they ought reasonably to have notified him of its insufficiency and their insistence upon a strict compliance with the statutory provisions is one of fact for the jury; and evidence that they so conducted themselves as to lead the insured to believe that the question of damages was the only matter in issue warrants a finding that they are estopped to set up his omission in defence to a suit upon the policy.</p> <p>The word “buildings,” as used in section 5, chapter 170, Public Statutes, includes both finished and unfinished structures.</p>

Case, for negligence. Transferred without a ruling from the April term, 1914, of the superior court by Pike, C. J., on the defendant’s demurrer to the declaration.

Assumpsit, upon two fire insurance policies, to recover in each case a loss of $1,300 upon buildings and $450 upon personalty, said property having been totally destroyed by fire on August 4, 1912. The liability of the defendants for the loss upon the personalty was admitted. Transferred without a ruling from the May term, 1914, of the superior court by Kivel, J., on an agreed statement of facts.

<p>“Where the owner of a block employs a builder to furnish labor and materials required for repairs, but retains and exercises control as to details, he cannot escape liability for damages due to negligence of the workmen, on the ground that they are the servants of an independent contractor.</p> <p>■Certain evidence deemed sufficient to warrant the finding that a person furnishing labor and materials necessary for the repair of a building was an overseer under the direction and control of the owner as to the details of the work, and that the men engaged upon the job were servants of the owner, for whose negligence the latter was responsible.</p> <p>Case, to recover for personal injuries from an obstruction to public travel on or adjacent to the sidewalk of a public highway. .At the close of the evidence the defendants moved for a nonsuit; .and upon the agreement of counsel that judgment should be entered for the plaintiff in the sum of $750 in case the order should be held ■erroneous, the motion was granted subject to exception. Transferred from the December term, 1913, of the superior court by .Sawyer, J.</p> <p>The defendants own and occupy a block facing southerly on Main street at the corner of School street. The School-street line of their lot is six feet westerly of the building, and the surface of the intervening land is laid in cement on the same grade as the sidewalk, which extends five or six feet further west, without any mark indicating the boundary between the highway and the defendants’ premises.</p> <p>In the summer of 1912, the defendants desired to make repairs upon their property and employed one Smith, a contractor and builder, upon the basis of payment for all labor and supplies furnished by him at cost, with ten per cent added. The defendants had plans and specifications prepared, but they were not followed. Smith furnished all the labor and materials except what was required for the painting and plumbing. After the work was begun it was decided to cement the cellar floor, and Smith did that job in the same way. During the progress of the work some of the men furnished by Smith left two rows of barrels of cement upon the concrete next the defendants’ building, for storage over Sunday, covering them with boards laid upon pieces of joist as a protection against rain. The pieces of joist extended at right angles with School street near to or over the line of the highway. While passing ■over the walk at about 11 o’clock Saturday night, the plaintiff collided with the joist and received the injury complained of.</p>

Assumpsit, to recover the excess above two cents per mile which the plaintiff was compelled to pay for his transportation on the defendant’s road between Coos Junction and Mason in this state. The plaintiff boarded the train at Lancaster in this state, intending to go to Colebroolc, also in this state. Between Coos Junction and Mason the defendant’s road is in Vermont.

Petition, to'strike out an entry of judgment. At the October term, 1911, of the superior court, the action was referred to arbitrators by an agreement of the parties in which it was stipulated “that the decision of said arbitrators, or a majority of them, in writing shall be final upon questions of law as well as fact arising in the case before them, and shall be made to the superior court for said county of Rockingham at its next term after the rendition of said decision,…

Detinue, for portraits of Governor Benning Wentworth, Lieutenant-Governor John Wentworth, and the former’s son. Transferred without a ruling from the April term, 1914, of the superior court by Pike, C. J., on an agreed statement of facts.

Assumpsit. Trial by the court. Facts found, and case transferred from the February term, 1914, of the superior court, by Branch, J. In July, 1907, the plaintiff sold a lot of lumber to the defendants, who agreed to accept delivery on the average date of September 1, 1907. After a few carloads had been shipped, the plaintiff complied with the defendants’ request to hold the remainder for a time.

Case, for negligence. Trial by jury and verdict for the plaintiff. Transferred from the November term, 1913, of the superior court by Pike, C. J. During the trial a witness testified that the plaintiff resided in Grafton county, where the defendant had its sole place of business.

Foreign Attachment. Transferred without a ruling from the-April term, 1914, of the superior court by Branch, J., on an agreed statement of facts. The indebtedness of the principal defendant to the plaintiffs is admitted, and the only question raised relates to-the chargeability of the trustees. For some time before October 11, 1913, the Glines & Stevens-Company was insolvent and unable to pay its creditors in full.

Case, for negligence. Trial by jury and verdict for the defend.ant. Transferred from the April term, 1914, of the superior court by Branch, J., on the plaintiff’s exceptions to the admission of evidence and to instructions to the jury. The controversy is oyer responsibility for a collision between an .automobile driven by the defendant’s testator and a bicycle upon which the plaintiff was riding.

Case, for personal injuries caused by the defendants’ negligence. Trial by jury and verdict for the plaintiff. Transferred from the May term, 1914, of the superior court by Pike, C. J., on the defendants’ exceptions to the denial of motions for a nonsuit and the direction of a verdict.

Case, for negligence resulting in the death of John B. Doucette, the plaintiff’s intestate, who was caught between freight cars on January 14, 1913, and received injuries from which he died a few hours later. Trial by jury and verdict for the plaintiff. Transferred from the January term, 1914, of the superior court by Pike, C. J., on the defendants’ exceptions to the denial of motions for a nonsuit and the direction of a verdict in their favor.

<p>As to strangers to the cause, a judgment is evidence of its rendition and its amount, but not of the facts which were in issue between the parties thereto.</p> <p>A judgment recovered by a bank against the surety upon a promissory note cannot be pleaded in bar of a subsequent action brought by the former defendant against a director of the institution, who without authority from his associates fraudulently induced the surety to forbear suit against the maker of the instrument.</p>

Petition for mandamus, to compel the defendants to issue and keep for sale in New Hampshire 500-mile mileage books, in accordance with the provisions of chapter 92, Laws of 1913. The petition set out the statute and alleged non-compliance by the defendants. At the April term, 1914, of the superior court, the defendants’ demurrer was overruled pro forma by Sawyer, J., subject to exception.

Assumpsit, on a fire insurance policy. Writ dated November 13, 1912. Trial by the court. Facts found, and case transferred from the April term, 1914, of the superior court, by Sawyer, J. July 10, 1910, Woodward & Gerrish, the defendants’ agents, issued a policy insuring the plaintiff’s household furniture against damage by fire for a term of three years.

Information, in the nature of quo warranto, to determine the right of the defendant to the office of superintendent of schools in Manchester. The board of school committee is a municipal body which is authorized and required to elect biennially in the month of June a superintendent of public instruction for the city. The defendant held the office for the term ending July 1, 1914.

<p>An appeal from an order or decision of the public service commission, taken under chapter 145, Laws of 1913, transfers to the supreme court the entire matter involved, except as the scope of the proceeding may be limited by the statute which grants the appeal.</p> <p>Since the enactment of chapter 145, Laws of 1913, the public service commission are not named as defendants in an appeal from their orders or decisions, and such proceedings should be entitled as against the parties adverse to the appellant.</p> <p>Railroad rates which have been filed with the public service commission are not legal rates until they have received the approval of that board.</p> <p>A railroad rate which is confiscatory cannot be enforced; and upon a petition to the public service commission for leave to increase charges, evidence that the existing rate is not compensatory is competent.</p> <p>As an appellate tribunal to the public service commission, the supreme court cannot confer upon that board any authority not expressly or inferentially given by statute, nor do any act with respect to the subject-matter of an appeal which the commission might not properly have done in the first instance.</p>

Case, for negligence. Trial by jury and verdict for the plaintiff. Transferred from the January term, 1914, of tbe superior court by Branch, J., on the defendants’ exceptions to the denial of motions for a nonsuit and a directed verdict. July 31, 1913, the plaintiff’s ward, a boy two years and nine months old, was struck and injured by the defendants’ electric car which was passing the plaintiff’s premises on a trip from Smith-town to Hampton.

Petition, by the town of Bow and certain taxpayers therein, alleging that the state tax assessed against the town for the year 1914 is more than its just share of the public expense, and praying that the warrant be corrected and that the defendant be enjoined from collecting so much of the tax as is illegal. Transferred without a ruling from the April term, 1914, of the superior court by Branch, J.

Bill in Equity, by the trustee under the will of Calvin D. Carpenter, asking the advice of the court as to the rights of the defendants Allen, Wyman, and Bean in or to the trust property.

Bill in Equity, by the administrator de bonis non of the estate of Annie J. Gilson, for advice as to the meaning of the following clause in her will: “To the First Universalist Church Society of Nashua, N. H., $1,000 to be used toward paying the church debt.” The residue of the estate was given in equal shares to the Nashua Protestant Orphanage and the Nashua Women’s Humane Society.

Assumpsit, upon a fire insurance policy. Trial by jury and verdict for the plaintiff. Transferred from the January term, 1914, of the superior court by Kivel, J. The contract of insurance provides that “this policy shall be void . . . if the insured shall make any attempt to defraud the company either before or after the loss.” The defence was based upon alleged attempts to defraud after the loss occurred.

<p>Case, for negligence. Trial by jury and verdict for the defendant. Transferred from the January term, 1914, of the superior court by Chamberlin, J.</p> <p>One question in the case was whether the plaintiff ran into the defendant’s car, or the car ran into him. The accident happened on a Sunday forenoon in April, on Somerville street in Manchester. There was evidence that the car was running slowly, that it stopped quickly, and that the plaintiff at once arose from the ground and walked to his home near by. Testimony of a passenger on the car was offered and ruled upon as follows:</p> <p>Q. “Now was there — you need not answer this just for a moment, I want to ask the question — immediately after the accident took place, was there any expression made by the people in common there, if you heard, without knowing who made it?”</p> <p>Court. “About the accident?” Mr. Warren. “Yes.”</p> <p>Court. “At the time?” Mr. Warren. “Yes.”</p> <p>Court. “She may say yes or no.” A. “Yes.”</p> <p>Q. “Now, what was it?”</p> <p>Mr. Stearns. “I object.”</p> <p>Court. “Wait.”</p> <p>Mr. Warren. “I believe that is competent.”</p> <p>Court. “If it is near enough to the time, I haven’t any doubt — ”</p> <p>Mr. Warren. “I put it immediately after the accident.”</p> <p>Court. “I want you to put it as near as you can after the stopping of the car or contact with it.”</p> <p>Q. “Mrs. Hamilton, you say a common expression was made. When was it made with reference to the stopping of the car?”</p> <p>A. “When was it made?” Q. “Yes.” A. “Why, the car was there, and I was sitting on the car.”</p> <p>Court. “Was it after it stopped?”</p> <p>Q. “Was it after the car stopped you heard the common expression?” A. “Yes, just after it stopped.”</p> <p>Court. “Where was the boy? Was he gone, or was he there?” A. “They were carrying him, taking him, before he was taken into the house.”</p> <p>Court. “I think I will receive it, subject to exception. If you wish to except to it you may.”</p> <p>Mr. Stearns. “Exception.”</p> <p>Q. “What was the expression?” A. “That he ran into the car.” The plaintiff’s counsel did not suggest that the people making the “ common expression” were not in a position to know the truth upon the subject, and the court did not understand that such a claim was made. The court found from all the evidence in the case that those who made the expression knew the truth with respect to it; and to this finding the plaintiff excepted after the trial, upon the ground that it was not supported by the evidence.</p>

<p>The question of contributory negligence is properly submitted to the jury unless the plaintiff’s carelessness is so apparent that all fair-minded men must pronounce him negligent.</p> <p>One driving along a country road with a horse which is considered entirely safe is not chargeable with negligence as matter of law because he approaches an unrailed culvert at a slow trot, holding the reins loosely in one hand.</p>

Case, for personal injuries alleged to have been caused by the negligence of the defendant in driving his automobile upon the plaintiff, who was riding a bicycle. Transferred from the April term, 1914, of the superior court by Branch, J. The defendant pleaded the general issue, with a brief statement setting up a release of the plaintiff's cause of action.

Petition, for the abatement of taxes assessed against the plaintiff by the defendant town, for the years 1911 and 1912. Transferred from the May term, 1914, of the superior court by Pike, C. J. The plaintiff lived in Deering from April 28, 1893, to January, 1894, and then removed to New Boston. He retained ownership of the house in Deering and has occupied it whenever his business took him to that town.

Assumpsit, to recover $350 as a commission on the purchase of 700 acres of land by the defendants. The writ is dated.- November 13, 1913. The defendants pleaded the general issue and the statute of limitations. Transferred from the April term, 1914, of the superior court by Sawyer, J., on the plaintiff’s exception to an order of nonsuit.

Assumpsit, to recover dividends upon 211 shares of stock in the defendant corporation. Trial by jury and verdict for the plaintiffs. Held: the assessed value of the same, and the probable amount that can be realized on the shares. ” Mead testified that until the receipt of the foregoing letter he had no knowledge that Mason’s 211 shares of stock were pledged as collateral.

Case, for negligence. Trial by jury. Transferred from the April term, 1914, of the superior court by Kivel, J., on the plaintiff’s exception to an order of nonsuit. The plaintiff’s evidence tended to prove the following facts: September 24, 1912, the plaintiff was employed by the defendant to assist in sawing soft slabs on a gasoline sawing machine.

Petitions, under section 8, chapter 76, of the Public Statutes, for leave to file claims for injuries alleged to have been caused by a defective highway. The injury complained of in each case is the death of the intestate by drowning at the time of the accident.

Appeal, from orders and decisions of the public service commission, filed April 22, 1914. The appellants are the Grafton County Electric Light and Power Companj, the Lebanon Electric Light and Power Company, and the Mascoma Electric Light and Gas Company, all New Hampshire corporations. The Grafton County company was organized under general law in September, 1912, for the purpose of taking over the physical properties of the other corporations.

Appeal, from a decree of the probate court for Rockingham county, in the matter of the distribution of the estate of Mary C. Fitts. Transferred without ruling from the April term, 1914, of the superior court by Pike, C. J., on an agreed statement of facts. Mary C. Fitts was a resident of Newfields and died there on February 8, 1912, intestate, leaving personal property. She had in her lifetime two brothers, S. Franklin and George H. French.

Probate Appeal, from a decree appointing the plaintiff administrator. Transferred without ruling from the October term, 1914, of the superior court by Kivel, J. Warren A. Hix was a resident of Massachusetts and was killed in that state while in the employ of the defendant. He left estate there which is being administered in the usual course. By a statute of Massachusetts, an action may be maintained by the administrator to recover damages for wrongfully causing death.

Case, for deceit. Transferred without ruling from the May term, 1914, of the superior court by Young, J. The first count of the declaration alleges in substance as follows: In September, 1897, the defendant borrowed $600 of the plaintiff and gave as security therefor a mortgage of real estate. Subsequently she borrowed $200 more and gave the plaintiff a deed of the mortgaged premises, taking a bond for reconveyance.

Trespass guare clausum. The defendant pleaded title in one Murray. Trial by the court and verdict for the defendant. Facts found, and case transferred from the September term, 1914, of the superior court, by Pike, C. J. The controversy relates to the location of the line between the plaintiff’s and Murray’s land.

<p>Where a contract made by an agent is within the apparent scope of his authority, the principal is bound thereby in favor of third persons having no actual knowledge of express limitations of the agency.</p> <p>The “apparent scope” of an agent’s authority is that authority which a reasonably prudent man, induced by the principal’s acts or conduct, and exercising reasonable diligence and sound discretion under the circumstances, would naturally suppose the agent to have.</p> <p>In an action to enforce a contract of guaranty, evidence that an agent in general charge of lumbering operations for an absentee principal, having engaged for the hauling of logs, subsequently guaranteed payment for teams furnished by the plaintiff, under an agreement which authorized retention of the contractor’s earnings for the satisfaction of the claim, warrants a finding that the plaintiff might reasonably have assumed that the contract on which he relied was one which the agent had power to make in behalf of his principal.</p> <p>A guaranty which is, in a practical sense, a contract for the benefit of the guarantor in the prosecution of his business is not within the statute of frauds.</p> <p>The fact that a general agent in charge of lumbering operations did innumerable acts in that capacity warrants the inference that he was held out as having power to contract with reference to a detail of the work, for the apparent benefit of his principal.</p>

Assumpsit, for money had and received. Transferred without a ruling from the December term, 1914, of the superior court by Branch, J., on an agreed statement of facts. The plaintiff in the first case is the city marshal and in the second is the city solicitor of Berlin.

Assumpsit. Trial by jury and verdict for the plaintiff. Transferred from the April term, 1914, of the superior court by Sawyer, J., on the defendants' exception to the denial of their motion for a directed verdict. The action was brought by Martin Monahan in his lifetime and is now prosecuted by his administrator. May 20, 1911, Patrick J. Martin mortgaged certain personalty to John S. Myers and subsequently executed a second mortgage of the same property to Lydia Martin.

<p>Assumpsit, to recover funds of the plaintiff’s decedent alleged to have been received and wrongfully paid out by the defendant. Transferred from the September term, 1914, of the superior court by Kivel, J., on the plaintiff’s exception to an order of nonsuit.</p> <p>The plaintiff’s evidence tended. to prove the following facts: David H. Cook died in 1907, leaving a will in which his sons, Edward A. and Benjamin F., were named as executors. The will was probated, but the executors never qualified. At the time of his death David had §17.57 on deposit with the defendant. Edward and Benjamin assumed to act as executors and collected $3,235.23 of the money of the estate. They opened an account with the defendant as “E. A. and B. F. Cook, executors,” and deposited the money they had collected; and all of it, together with the $17.57, was paid out upon checks drawn by them. Among these checks was one for $323.22 given to the defendant to take up a mortgage it held upon Edward’s horses. The defendant had no knowledge that Edward and Benjamin were not executors. It dealt with them in good faith and in the usual way.</p>

Appeal, from an order of the public service commission dismising the petitions referred to ante, 490. It appeared in evidence that the cost of the property of the Lebanon and Mascoma companies to the owners of the Grafton County Company was substantially its book value, which largely exceeded its capitalization. The commission were of opinion that the property was worth a larger amount, but that its capitalization at its value would be contrary to the public good.

Bill in Equity, by the executor of the will of Martha A. Peaslee, for direction as tq the disposition of certain bequests. Transferred without ruling from the September term, 1914, of the superior court by Sawyer, J. At her decease, the testatrix was possessed of real and personal property to the amount of $10,589.98. A note of Mrs. Isabella Anderton,for $275 and an uncashed check on the Strafford National Bank for $15 are the only items which it is necessary to specify.

Libel for Divorce. Trial at the May term, 1914, of the superior court before Sawyer, J., who found that the plaintiff’s charges were not sustained and dismissed the libel. Subsequently, a motion filed by the plaintiff in the superior court during the pendency of the libel, requesting the appointment of a guardian for her minor child, was dismissed by Pike, C. J. To the foregoing finding and rulings the plaintiff excepted.

Assumpsit, to recover $166.25, the value of a package delivered to the defendants at Concord, New Hampshire, for transportation to Buffalo, New York, at which place it failed to arrive. Transferred from the April term, 1914, of the superior court by Branch, J., upon findings from evidence and an agreement of counsel as to certain facts.

Case, for negligence, brought under the employers’ liability and workmen’s compensation act (Laws 1911, c. 163). Trial by jury and verdict for the plaintiff. Transferred from the April term, 1914, of the superior court by Branch, J. The plaintiff was at work by the day in an upstairs room of the defendant’s stocking mill.

Debt, for a penalty under section 2, chapter 203, Public Statutes, with a count in assumpsit for money had and received. Facts found, and case transferred from the May term, 1914, of the superior court, by Pike, C. J. March 8, 1913, the plaintiff borrowed money of one Rotman, doing business under the name of the City Loan Company, and gave a note for $65, payable to the order of said company thirteen weeks after date, in weekly instalments of $5 each.

Case, for malicious prosecution. Trial by jury and verdict for the plaintiff. Transferred from the January term, 1913, of the ■superior court by Chamberlin, J. In August, 1910, the parties engaged in a game of pool in a Manchester pool-room for money. In making change there was some ■dispute about the genuineness of a two-dollar bill which Krol gave Plodick, and some of the bystanders said it was counterfeit.

Case, for negligence. Trial by jury. At the close of the plaintiff’s evidence the defendants’ motion for a nonsuit was granted, subject to exception. If the exception is sustained, there is to be judgment for the plaintiff for $3,000. If it is not sustained, the case is to be entered: Neither party, no further action for the same cause.

Case, for negligence. Trial by jury and verdict for the defendant. Transferred from the September term, 1914, of the superior court by Chamberlin, J. The action was brought to recover for injuries received in a collision between motor cycles operated by the plaintiff and the defendant. In closing argument the defendant’s counsel used the following language: “I think I need say nothing more. The man was injured.

Case, for slander. Trial by jury and verdict for the plaintiff. Transferred from the October term, 1915, of the superior court by Sawyer, J. The alleged slander consisted of remarks by the defendant reflecting upon the honesty of the plaintiff in his business dealings.

Trespass to the person. Trial by jury and verdict for the defendant.

Case, for negligence. Trial by jury and verdict for the plaintiff. Transferred from the November term, 1913, of the superior court by Pike, C. J., on the defendant’s exceptions to remarks of counsel and to the denial of a motion for a nonsuit.

Case, for personal injuries received April 24, 1913. The writ was dated August 12, 1913. Trial by jury on April 27, 1915, and verdict for the plaintiff. Transferred from the April term, 1915 of the superior court by Chamberlin, J. There was evidence upon which reasonable men could differ as to the issue of the plaintiff’s contributory negligence.

<p>Bill in Equity. The plaintiff, administrator with will annexed of the estate of Sarah A. Brown and executor of the will of Webster C. Brown, asks for a construction of the will of Sarah and for advice as to the administration of the two estates. All parties interested are represented and ask for a decision of the questions in controversy without regard to the form of the proceeding. Transferred from the September term, 1914, of the superior court by Branch, J., on an agreed statement of facts.</p> <p>Sarah A. Brown, wife of Webster C., died January 10, 1902. Her will was dated April 10, 1895, and was written by her husband. By the first clause she appointed him sole executor and requested that no inventory of her real or personal estate be made, and that no sureties be required of her husband as executor. The second clause directs him to provide for perpetual care of a cemetery lot by investing a sum not exceeding $500 for that purpose. The third clause of the will is as follows: “All the rest and residue of my real and personal property of every description that I possess I give, devise, and bequeath to my husband, Webster C. Brown, to have and to hold during his natural life, or to dispose of for his support or benefit, or for the interest of the estate, as he may deem necessary. As soon as may be after his decease, I direct, and it is my will, that all the remainder of my real and personal estate be given to the Second Orthodox Congregational Society in the city of Nashua, N. H., for the purpose of assisting to maintain public religious worship in the Pilgrim Church, so called.”</p> <p>The will was proved January 20, 1902, and the husband qualified as executor. He filed an inventory showing real estate appraised at $5,000, fifteen shares of stock in local corporations appraised at $3,000 and worth approximately $4,300, one United States bond for $500, and deposits in four Nashua banks with a face value of $964.62, which were inventoried as value unknown, the banks being then in process of liquidation. Shortly after his appointment as executor, Brown surrendered the certificates of stock and took new certificates in his own name, in one case making the transfer through a third party. After his wife’s death he occupied one parcel of the real estate left by her and rented the other. He died August 19, 1910, without having settled any account as executor, leaving a will executed December 10, 1904, the ninth and last clause of which is as follows: “All the rest and residue and remainder of my estate, real, personal, or mixed, of which I am seized or possessed, or to which I may be entitled at the time of my decease, I give, devise, and bequeath to my sister, Miss Sarah A. Brown, and to the grandchildren of Silas and Kate H. Brown.”</p> <p>Brown was one of the commissioners of Hillsborough county from 1886 to 1900. He and his wife lived in Nashua and were attendants upon the services of the Pilgrim Church, both before and after her will was made. They had no children or descendants, and she had no heirs so far as known. Under the residuary clause of Mrs. Brown's will,.the Second Orthodox Congregational Society claims the real estate left by her and the stock for which her husband received certificates upon surrender of the shares standing in the name of his wife. Sarah A. Brown and the grandchildren of Silas and Kate H. Brown claim the same property under the residuary clause of Webster’s will.</p>

Appeal, from the police court for the district of Nashua. The complaint charged that the defendant, at Nashua, on August 11, 1913, sold a horse which was unfit for labor. The defendant seasonably moved to quash the complaint on the ground that the statute under which it was brought is unconstitutional. The motion was denied, and the defendant excepted. Transferred from the January term, 1915, of the superior court by Branch, J.

<p>In an action against an employer to recover for personal injuries sustained by a boy fifteen years of age, evidence of the defendant’s non-compliance with the provisions of chapter 162, Laws of 1911, relating to child labor, is not relevant upon the issue of his negligence.</p> <p>Whether a witness shall be permitted to write from dictation for the purpose of showing his mental incapacity is a question determinable by the trial court. The denial of a request for specific instructions is not exceptionable if their substance, so far as applicable to the evidence, is included in the charge.</p>

<p>Whether a party has been guilty of misconduct which requires the withdrawal of a case from the jury and its continuance to the next term is a question determinable by the trial court.</p> <p>Where a continuance is rendered necessary by the misconduct of a party, terms may be imposed as in the case of a continuance required by necessity; and if the offending party accepts the continuance and proceeds with the litigation, he will be held to have elected to pay the terms imposed.</p> <p>In the absence of a general rule providing for continuances for misconduct, the court has authority in a particular case to make such special orders as justice requires.</p> <p>Trespass quare clausum. Because of the defendant’s misconduct before the jury in the court room and also at a view taken in the course of the trial, the court withdrew the case from the consideration of the jury, ordered it continued, and made the following order as terms: The plaintiff to have full costs up to and including this term; the defendant to tax no costs prior to next term, in any event; and in taxing the plaintiff’s costs, the item of attorney fee is to be taxed at $50. The defendant excepted to the foregoing order. Transferred from the November term, 1914, of the superior court by Sawyer, J.</p>

Bill in Equity, to enjoin the defendants from entering the station and grounds of the plaintiff railroad, in Manchester, to solicit the carriage of baggage for passengers. The defendants demurred. The essential facts are the same as in Hedding v. Gallagher, 72 N. H. 377. Transferred without ruling from the May term, 1911, of the superior court by Plummer, J.

Case, for personal injuries. Trial by jury and verdict for the plaintiff. Transferred from the September term, 1912, 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.

Assumpsit, for clothing manufactured by the plaintiffs for the defendant. Trial by jury and verdict for the defendant. Transferred from the April term, 1913, of the superior court by Young, J. The defendant testified that he gave the order for the merchandise to the plaintiffs’ traveling salesman, whom he had previously dealt with as the representative of another clothing house which had permitted him to return goods whenever he desired to do so.

Assumpsit. Trial at the December term, 1912, of the superior court before Chamberlin, J. On the facts hereinafter stated, the court ruled that the defendant was not liable and ordered a verdict in its favor, and the plaintiff excepted. The plaintiff seeks to recover a death benefit from the defendant association of which her intestate was a member.

Assumpsit. Trial by the court and verdict for the plaintiffs for five dollars. Transferred from the April term, 1913, of the superior court on a bill of exceptions allowed by Pike, J. In September, 1911, the defendant ordered of the plaintiffs four iron beams of a specified length for use in the construction of a building. The plaintiffs sent beams which were two feet shorter than the order specified and were notified by the defendant that he would not accept them.

Petition, by a residuary legatee, for advice as to the meaning of a will. At the October term, 1913, of the superior court, the petition was dismissed by Peaslee, J., upon the ground that the legatee was not entitled to advice, and he excepted.

Case, for wrongfully ejecting the plaintiff from a train. This is the same case reported 76 N. H. 388, and ante, 61. Upon this trial, at the October term, 1913, of the superior court, there was a verdict for the plaintiff. At the beginning of the trial and again after the verdict, the defendants made a motion for judgment, which was denied by Plummer, J., subject to exception.

Assumpsit, against Henry E. Randall, Eugene F. Hobson, and four others, to recover damages for breach of contract. Trial by jury and verdict for the plaintiff. Transferred from the April term '1912, of the superior court by Pike, J., on the exception of each defendant to the denial of his motion for the direction of a verdict in his favor.

Writ oe Entry, to foreclose a mortgage. The defendant pleaded nul disseizin with a brief statement of defence and filed a further answer in the nature of a bill in equity, joining Wentworth & Co. and Charles S. Wentworth, a non-resident, as defendants, and alleging in substance that the latter is the real owner of the mortgage and that as to him he has a valid defence to the action at law.

Case, for personal injuries. Trial by jury and verdict for the defendants. Transferred from the September term, 1913, of the superior court by Pike, C. J. Subject to exception, the defendants were permitted to cross-examine the plaintiff’s husband as to whether he would make a claim against the defendants for loss of services and for money paid out for nursing and medical attendance if his wife recovered in this suit.

Bill in Equity, by the trustee under the will of Alma Barker, for advice as to the distribution of the trust fund. Transferred without a ruling from the January term, 1914, of the superior court by Pike, C. J. The first and second clauses of the will create a trust fund for the benefit of Isaac N. Johnson, son of the testatrix, and of his children if any should be born to him.

Libel for Divorce and cross-libel for separate maintenance. Facts found by a master, upon whose report the superior court {Branch, J.) at the April term, 1914, ordered the husband’s libel dismissed and entered a decree for the wife, subject to the husband’s exception.

Probate Appeal. The plaintiff was cited into the probate court to settle his account as trustee under the will of Harriet Stark. The court not only charged him with the accumulated income of the trust fund, but ordered him to pay it to St. Paul’s School, and from the latter part of the decree he appealed. At the April term, 1914, of the superior court, the appeal was dismissed by Branch, J., and the plaintiff excepted.

<p>Assumpsit, upon a contract to indemnify against loss of time from accidental bodily injury. Trial by the court. Transferred from the April term, 1914, of the superior court by Sawyer, J.</p> <p>The plaintiff, having suffered injury, furnished the defendants satisfactory proof in which he claimed $82.50 for six weeks’ total disability. The defendants sent him a check for $61.50, with a letter stating that payment was allowed for only four weeks’ total disability, with two weeks’ partial disability. Upon the face of the check was a printed statement that the same was “in full and final settlement for all claims originating prior to the date hereof,” and upon the back was a “receipt and indorsement” acknowledging the full satisfaction of all claims. The plaintiff collected the check and two days later requested further payment. The court found that the plaintiff was totally disabled for six weeks and that he accepted payment in accordance with the terms of the check and the indorsement thereon. A verdict was entered and judgment rendered for the defendants, subject to exception.</p>

Petition, for an injunction restraining the defendant from interfering with real estate alleged to be charged with the debts of the plaintiff’s intestate, and for instructions as to whether the debts might be considered a charge upon the real estate if the intestate intended to make them so. Upon a trial of the facts it was found that there was no evidence that the intestate had such an intention, and the petition was dismissed subject to exception.

Petition eor Partition. At the April term, 1914, of the superior court, the plaintiff’s motion that the answer to the petition be disallowed was denied by Branch, J., subject to exception.

Case, for negligently burning the plaintiff’s buildings. Trial by jury and verdict for the plaintiff. The defendants’ motions for a nonsuit and a directed verdict were denied, and they excepted. Transferred from the May term, 1914, of the superior court on a bill of exceptions allowed by Pike, C. J. The defendants drilled a shallow hole in a stone which was located a few yards from an old mill, loaded it with dynamite, and exploded the charge with a fuse.

Trespass quare dausum. Trial by the court. Transferred from the October term, 1913, of the superior court by Branch, J., on the plaintiff’s exception to an order of nonsuit.

Bill in Equity, to determine the location of a divisional line. The case was originally heard in the superior court before Mitchell, J., and on October 31, 1911, a decree was filed establishing the boundary. February 9, 1912, the plaintiff filed a motion for a modification of the decree, and a hearing was had thereon before Mr. Justice Mitchell, who died before taking any action.

Case, for personal injuries. Trial by jury. Transferred from the September term, 1914, of the superior court by Chamberlin, J., on the plaintiff’s exception to an order of nonsuit. July 9, 1913, the plaintiff was injured at the Massabesic-street crossing of the defendants’ railroad.

Case, for negligence. Trial by jury and verdict for the defendant. Transferred from the October term, 1914, of the superior court by Kivel, J., on the plaintiff's exception to the exclusion of evidence. There was also an exception by the defendant to the denial of a motion for a directed verdict.

<p>The power vested in the governor and council to change the routes of existing highways in designating and constructing the trunk lines provided for by section 15, chapter 35, Laws of 1905, was plainly intended to authorize such relocations before the improvements were made and not afterward.</p> <p>The repair and maintenance of trunk-line highways, imposed upon the towns by section 20, chapter 35, Laws of 1905, does not include the expense of relocating such highways after their improvement.</p> <p>Where a section of a trunk-line highway has been improved at the joint expense of the state and a town, the governor and council have no authority to construct a new road upon a substantially different location, as a substitute for the highway theretofore designated and improved, and require the town to pay a proportionate part of its cost.</p>

February 5, 1915, Hon. Edwin C. Bean, speaker of the house of representatives, acting in obedience to a resolution of that body, requested the opinions of the justices of the supreme court upon the question whether a pending bill, entitled “An act relating to the taxation of personal estate,” would be valid if enacted, and more particularly “whether any constitutional provision would be violated by imposing a tax at the uniform rate upon money received as interest or…