Volume 78 — New Hampshire Reports

Trover, against a deputy sheriff. Trial by the court. Transferred from the January term, 1915, of the superior court by Branch, J. Prior to July, 1913, Vangos & Papazohn were engaged in trade in Nashua and purchased certain goods of the Three Millers Company. In the month of July, one Xylophos purchased the interest of Papazohn in the partnership, and the business was thereafter conducted by Xylophos and Vangos as partners.

Trespass to the person. Trial by jury and verdict for the plaintiff. The plaintiff is the defendant’s wife, and her evidence-tended to prove that her husband had on several occasions assaulted her. At the close of the plaintiff’s evidence the defendant moved for a nonsuit, upon the ground that an action for assault cannot be maintained by a wife against her husband. The motion was denied, and the defendant excepted.

Assumpsit. The case was heard at the January term, 1909, of the superior court by Wallace, C. J., who denied the defendant’s motion for a nonsuit, subject to his exception, and found a verdict for the plaintiff on the question of liability.

<p>Indictment, for murder by poisoning. After the general panel of jurors were present in court, the defendant retracted his plea of not guilty, pleaded guilty to murder in the first degree, and moved that a sentence of life imprisonment be forthwith imposed. Thereupon the state moved that a jury be drawn to pass upon the question of punishment. Subject to exception, the defendant’s motion was denied and the state’s motion was granted.</p> <p>In the examination of jurors, the state was permitted to ask the following question, subject to exception: "Are you conscious of any sentimental prejudice against the infliction of capital punishment, if you should think the evidence warranted it?” Several jurors who expressed themselves as opposed to capital punishment were excused by the court, subject to exception, and there were also exceptions to portions of the closing argument for the state.</p> <p>The jury having returned a verdict that the defendant be punished by death, he was sentenced to be hanged; and a bill of exceptions filed in his behalf was allowed by Kivel and Branch, JJ., at the January term, 1915, of the superior court.</p>

<p>Indictment, for statutory rape. Trial by jury and verdict of guilty. Transferred from the November term, 1914, of the superior court by Branch, J., upon exceptions to the admission and exclusion of evidence, to a refusal to permit counsel to state the penalty to the jury, and to the charge. The facts are stated in the opinion.</p>

<p>Where, in an action to recover damages for being prevented from redeeming realty from foreclosure, a verdict for the plaintiff is supported solely by evidence of the defendants’ fraud, a submission of the issue of unreasonable interference, under instructions which may have been understood to authorize a recovery against the defendants even if they acted honestly, furnishes ground for setting aside the verdict and ordering a new trial.</p> <p>Where one party calls upon the other to testify, the question whether such witness may be cross-examined by his own counsel is one of procedure and is determinable by the trial court.</p> <p>Case, to recover damages for being prevented from redeeming certain premises in Enfield from mortgage foreclosure. The declaration contained two counts, the first alleging fraud in certain agreements relating to an assignment of the defendants’ rights, and the second charging unlawful and fraudulent interference with the plaintiff’s efforts to raise money with which to redeem. Trial by jury and verdict for the defendants Smith and Perley, and against the defendant Cooper. Transferred from the October term, 1913, of the superior court by Peaslee, J.</p> <p>The defendants excepted to the denial of their motions for a nonsuit and a directed verdict, and to instructions submitting the issue of unreasonable interference upon the ground that there was no evidence to support that issue. The plaintiff called the defendant Cooper as a witness and excepted to his cross-examination by the defendants’ counsel. The material parts of the evidence and instructions are stated in the opinion.</p>

Petition, for the abatement of taxes assessed against the plaintiff by the selectmen of Lebanon upon the amount of her deposit in the White River Savings Bank, a corporation doing business in Vermont. Trial at the October term, 1914, of the superior court before Sawyer, J., who ordered the petition dismissed. To this order the plaintiff excepted. The only question raised relates to the validity of the tax.

Bill in Equity, offering to restore to the defendant the title of ■ certain lands which he had deeded to the plaintiff and seeking to have the consideration which the plaintiff claims to have paid therefor restored to her. Trial by the court. Transferred from the October term, 1914, of the superior court by Sawyer, J. The plaintiff alleged that she was defrauded by the defendant or his agents.

<p>Case, for negligence, brought under chapter 163, Laws of 1911. Trial by jury and verdict for the plaintiff. At the close of the plaintiff’s evidence the defendants moved for a nonsuit on the ground that the plaintiff was not in the exercise of ordinary care at the time of the accident, and at the close of all the evidence they moved that a verdict be directed in their faVor. Both motions were denied pro form,a, and the defendants excepted. Other exceptions taken by the defendants were not urged in brief or oral argument. Transferred from the September term, 1914, of the superior court by Pike, G. J.</p> <p>The plaintiff was injured on July 20, 1913, and had then been employed for nine years as fireman of the steam-boiler in the defendants’ leather-board mill in Bath. A short time before his injury the defendants removed the manhole and handhole covers from the boiler for the purpose of cleaning it; and during his absence their foreman replaced the covers and turned up the nuts on the crow’s-feet holding the covers in place, as far as it was possible to do so without steam pressure in the boiler to warm the gaskets. The plaintiff’s evidence tended to prove that the foreman did not properly replace the manhole cover and the gasket or packing which was placed between the edge of the cover and the inside surface of the boiler. For about a week the defendants had been out of the asbestos gaskets which they ordinarily used, and on this occasion the foreman made a gasket from rubber belting. The asbestos gasket was one eighth of an inch thick, while that made from the belting was three eighths of an inch thick. The plaintiff’s evidence tended to prove that the rubber gasket was not a proper packing.</p> <p>After tightening the nuts as much as possible without warming the packing, the foreman called one Drury to take charge of finishing that work after the packing had been warmed. Drury was a millwright of twenty-five years’ experience and had been employed to make repairs in the mil] for nine years, being called nearly every day for that purpose. The plaintiff had known him for twenty-three years. When the plaintiff came on duty a fire had been started under the boiler, but there was no steam pressure. Drury directed the plaintiff to watch his steam and to tighten the nuts on the handhole cover on top of the boiler and also on the manhole cover in front, when there was about five pounds pressure. While the steam was making Drury went to supper. Upon his return and just as he reached the boiler-house, he heard the safety valve on top of the boiler blow off and saw the plaintiff coming down from the top of the boiler, where he had finished tightening the nut on the handhole cover. Drury then told the plaintiff to tighten the nuts on the manhole cover, which the plaintiff started to do while Drury stood beneath him holding the crow’s-foot in place. The plaintiff tightened the nuts in just the way and manner that Drury directed him. The plaintiff had tightened the nut on the left-hand side of the cover, when the packing on that side was blown out and he was burned and scalded by escaping.steam and water.</p> <p>There was a steam-gauge located at the right of the boiler in front and eight or nine feet above the floor, which could be seen by one standing in front of the boiler if he looked to the right. There was no evidence as to the steam pressure at the time of the accident. The safety valve was set to blow off at 115 pounds and it blew off when Drury returned from supper, but the accident did not happen until thirty minutes later. In the meantime the smoke chamber doors had been^ open, which tends to lessen the steam pressure. The defendants’ foreman testified that the plaintiff had assisted him in packing the manhole cover and tightening the nuts on the crow’s-feet many times; that he had told the plaintiff not to tighten the nuts when there was more than eight to ten pounds pressure on the boiler, and had also directed him to tighten the nut on one side a little and then the nut on the other side, so as to draw the cover evenly. The defendants gave Drury authority to call to his assistance any of the regular employees, and in the present instance directed him to see to drawing up the manhole bolts, to have them draw the bolts again, and to use his judgment.</p> <p>The negligence of which the plaintiff complains is the use of improper packing, the improper placing of the gasket and crow’s-feet, and Drury’s directions to him to tighten the nuts under the circumstances. The defendants deny that they were negligent and say that if Drury was at fault they are not responsible for his negligence. They further claim that the plaintiff was negligent in attempting to screw up the nuts when the pressure of the steam was so high, and in tightening one nut completely, instead of screwing up the nuts a little at a time.</p>

Petition for mandamus, to require the defendants to transport the plaintiff to and from school. Trial at the February term, 1915, of the superior court before Pike, C. J. The court found that if on the facts hereinafter stated the defendants were bound as matter of law to furnish transportation for the plaintiff the writ should issue, but otherwise it should be denied, and transferred the questions of law so raised.

<p>Bill in Equity, alleging that the defendant company, being liable to the plaintiff for injuries negligently inflicted upon him, conveyed, all its property to its sole stockholder, the New England Investment Company, in return for the surrender of the certificates of stock, while his suit was pending; that the Investment Company sold the property, and its agent, the defendant Loveren, now holds $50,000 of the proceeds of such sale; and that the plaintiff, having recovered judgment for about $4,000, is unable to find any property from which to satisfy the execution. The prayer is that the defendant Loveren be ordered to pay the amount of the judgment from the fund in his hands.</p> <p>At the trial at the January term, 1915, of the superior court before Branch, J., it was found that the transfer of the property to the Investment Company was a distribution of the assets of the Coal & Ice Company to its stockholder, and a decree was made as prayed for, subject to the defendants’ exception.</p>

<p>Case, for negligence. Trial by jury and verdict for the defendant. Transferred from the January term, 1915, of the superior court by Branch, J., on exceptions to argument of the defendant’s counsel and to instructions to the jury, the facts relating to the latter exception being stated in the opinion.</p> <p>The plaintiff’s intestate, Elphege Demers, a boy five years old, while sliding with his elder brother on a double-runner down Dean street in Manchester, and around the corner into Canal street, collided with the defendant’s automobile and was killed. Just before the collision the automobile was proceeding in a southerly direction down Canal street and was approaching’ Dean street on the westerly and right-hand side of Canal street.</p> <p>It appeared in evidence that Joseph Dionne, a boy twelve or thirteen years old, was standing near the corner of Dean and Canal streets, in a position to see the collision; that he had been sliding with Donat Demers, brother of the deceased, before and on the day' of the accident, and walked home with him after it happened; and that he was in the court-room with Donat on the first day of the trial, when the plaintiff’s case was being introduced. It was Dionne who was referred to in argument by the defendant’s counsel, as follows: “It appears in this evidence, according to Miss Fortin, that there was a boy who walked home with Donat after this accident happened. She was at the corner at the time of the accident — right there on the corner. She saw him afterward and found out who he was. That boy was Donat’s playmate; that boy was here in this court-room yesterday with Donat; that boy is just as capable of telling you the facts of this case as any one. If anything could have been told you to help Donat, that boy would have been put on the stand by the plaintiff.” To the foregoing remarks the plaintiff excepted.</p>

Petition, for an abatement of taxes. The question whether an abatement should be granted as matter of law was transferred without a ruling from the November term, 1913, of the superior court by Chamberlin, J., upon the facts hereinafter stated. Edna M. Gilson, of whose estate the plaintiffs are the executors named in her will, died at Charlestown on September 14, 1912, leaving real estate located there, together with household furniture and clothing.

Assumpsit, for services in selling real estate. Trial by jury and verdict for tbe plaintiff. Transferred from the April term, 1911, of tbe superior court by Wallace, C. J., on tbe defendant’s exception to tbe denial of bis motion for a directed verdict. Tbe facts .are stated in tbe opinion.

Probate Appeal, from a decree denying the appellants’ petition for the appointment of the First National Bank of Concord, New Hampshire, as administrator of the efe’tate of Nellie E. Woodbury. The bank was incorporated prior to December 23, 1913. The petition was denied upon the ground that the court had no power to make the appointment. At the October term, 1915, of the superior court the decree of the probate court was affirmed by Branch, J., and the appellants excepted.

Petition, for an abatement of taxes assessed upon the plaintiffs’ stock in trade on April 1, 1912. Transferred from the April term, 1915, of the superior court by Chamberlin, J. The stock in trade was assessed at $60,000. The merchandise wa's of the'value of $35,733, the fixtures were worth $1,500, and the accounts receivable were in excess of $50,000.

Case, for personal injuries sustained by the plaintiff while in the defendants’ employ. Trial by jury and verdict for the plaintiff. The action was begun by Shea in his lifetime and since his death has been prosecuted by his administrator.

<p>A bill of interpleader cannot be maintained where the plaintiff can determine the right between the conflicting claimants without hazard to himself; hence an administrator cannot maintain such a bill against the creditors, the distributees of the estate and an adverse claimant of the assets, because a bona fide defence against the claim, though unsuccessful, will protect the administrator against both creditors and distributees.</p> <p>The heirs of a decedent have no title to the personal property in the hands of the administrator, but their right is to share in the assets remaining in the administrator’s hands after payment of debts and expenses of administration. Though the superior court may, in a proper ease upon request, advise an administrator as to the execution of his trust, the court has no power to advise or direct in advance the action of the probate court.</p> <p>An objection to the form of proceeding is waived by failure to take the objection upon a hearing on the merits.</p> <p>The incompetency of the surviving party or of his representative to testify is waived, if the opposing executor or administrator has previously taken his deposition as to matters occurring during the lifetime and within the knowledge of the decedent.</p> <p>In general, courts of equity follow the analogy of the statute of limitations; but, if under the circumstances recovery would be inequitable, a court of equity will refuse relief after an unexplained delay though less than the period of the statute.</p> <p>The mere payment from one to another of a sum of money is not evidence of a promise of repayment, and creates no presumption that the payer retained any beneficial interest in the money or that the transaction was other than payment of a debt, or a gift.</p> <p>A payment to or for one, for whom the payer is under some natural, moral or legal obligation to provide, isxirdinarily presumed to be made to benefit such person, unless the evidence overcomes the natural presumption of gift or payment arising from the transaction.</p>

On the night of November 22, 1913, while the plaintiff was traveling upon a highway in the defendant city, the wagon in which he was riding stopped so suddenly that he was thrown out and received the injuries for which he seeks to recover. An examination made the next morning disclosed that the highway was washed out to a depth of about two feet for a distance of three feet either side of a plank culvert in the highway, leaving .the culvert intact.

Case, for negligence. Trial by jury and verdict for the plaintiff. Transferred from the December term, 1914, of the superior court by Branch, J. The evidence tended to prove that the defendant was chartered as a railroad corporation, and that it had constructed and operated a system leading from the Boston & Maine and Grand Trunk stations in Berlin to and among the mills of the International Paper Company in that city.

<p>Lumber is taxable, generally, in the town where it is on the first day of April.</p> <p>Lumber which has been cut and manufactured in one town, transported to another town, where it is stuck up on the first day of April, awaiting orders for sales and shipments to market, is not “on its way to market or temporarily delayed therein on its way to market,” within the moaning of P. S., c. 56, s. 18; and hence such lumber is taxable under P. S., c. 56, g. 16 in the town where it is on the first day of April.</p>

Petition, for the assessment of damages caused by a change of grade of a street in the city of Laconia. Facts agreed, and case transferred from the November term 1914 of the superior court by Pike, C. J., without a ruling. The material facts are stated in the opinion.

<p>Devise to the testator’s wife, for life, with power of sale, “if at any time her property, including the income of said bequest, shall from any cause be so reduced as to be insufficient for her comfortable support,” — Held, that the word “property” did not mean income and that the contingency could not ■ arise until the widow had exhausted her own property and the income from her husband’s had become insufficient to support her.</p> <p>In construing a devise, a grammatical error is corrected to effectuate the intention of the testator.</p> <p>Whether a monument erected at the grave of a testator or intestate, as authorized by P. S., o. 189, s. 19, is suitable, • and the expense incurred therefor reasonable, witlin the meaning of that act, is to be determined in each case as a question of fact by a consideration of all the circumstances, including the amount of property left by the decedent, his position and standing, and the location of the monument.</p>

Petition, for an abatement of taxes assessed against the plaintiffs by the assessors of Concord upon a trust fund held by them as trustees appointed by the probate court of Merrimack county under the will of the late Mary Baker G. Eddy. Facts agreed. Five of the trustees are residents of Brookline, Mass., and one of the city of Concord. Mrs. Eddy died December, 3, 1910, and had her domicile at that- time in Concord.

Case,.to recover for the destruction of the plaintiff’s property May 28, 1914, by a fire claimed to have been set by the defendant’s, locomotive No. 885 while in operation on the Suncook Valley Railroad. Trial by jury and verdict for the plaintiff. Transferred, from the April term, 1915, of the superior court by Chamberlin, J..

Appeal, from the district court for the district of Nashua on complaints brought under chapter 271, section 3, Public Statutes. Both defendants were employed by one Fossa, the proprietor of a laundry in Nashua. On the Sundays mentioned in the complaints the defendants drove Fossa’s laundry team through the streets of Nashua in the afternoon, collecting bundles of dirty clothes, and carried them to Fossa’s place of business to be washed and returned on Monday.

Assumpsit, on an accident insurance policy issued to the plaintiff. Trial by jury and verdict for the plaintiff. Transferred from the January term, 1915, of the superior court by Pike, C. J. The policy provided for a payment of $50 a week during total disability and $25 a week for twenty-six weeks partial disability, and that proofs of claims’must be furnished at the end of each thirteen weeks.

<p>Recovery by á town under Laws 1903, c. 42, s. 1 against the estate of a decedent to whom the town has rendered assistance is limited to sums expended by the town under P. S., c. 83, s. 1, and recovery cannot be had for sums paid in performance of a contract to furnish support.</p> <p>A promise made without consideration and disclosing only an unexecuted intention to make a gift is unenforceable.</p> <p>Petition, under P. S., c. 191, s. 27 for judgment upon a claim under c. 42, Laws 1903 for assistance furnished the defendant’s intestate, William W. Garland, as- a town pauper. Transferred from the November term, 1914, of the superior court by Sawyer, J., upon certain findings of fact, without a ruling.</p> <p>Assistance was furnished Garland and his wife from Jan. 9, 1899, to Jan. 24, 1911, for which the town expended $1,594.84. Garland’s wife died Oct. 5, 1901. He died August 23, 1912, leaving no widow or minor child. The town expended in the six years prior to Garland’s death $731.40 and in the six years prior to Jan. 24, 1911, when the town ceased to aid Garland, $834.50. Jan. 17, 1899, Garland and his wife conveyed their homestead to the town in consideration of the agreement of a majority of the selectmen in behalf of the town to furnish such assistance as the grantors might require during their lives. The assistance for which the town now seeks to recover was furnished under this arrangement. Jan. 24, 1911, Garland became the owner of sufficient means to satisfy his needs and the town furnished no further aid. After becoming possessed of this property Garland told several persons that he should, and one of the selectmen that he would, repay the town what it had expended on his account, referring to the assistance received by him since his wife’s death. The claim was not exhibited to the defendant administrator within one year after his appointment because of certain facts upon which, if sufficient to authorize the finding, the court found that justice and equity require that the town be permitted to prosecute this claim and that it was not chargeable with culpable neglect in not proceeding within the time limited by law.</p>

Trustee Process. The plaintiff brought a suit against the defendants to recover for the death of her intestate. The liability was one against which the trustees had insured the defendants and assumed the defence of the suit. The plaintiff recovered judgment but'the trustees have neither paid the defendants the indemnity to which they were entitled under the policy nor secured their release from the plaintiff’s claim.

Case, for personal injuries. Trial by jury and verdict for the defendants. Transferred from the November term, 1914, of the superior court by Sawyer, J. The plaintiff was driving on the Merrimack Valley road in Belmont about one mile below Laconia, when her horse shied at an' automobile, and drew the right wheels of her carriage onto the south side of the roadway, and into a ditch, throwing her out of the carriage and breaking her arm.

Case, to recover for damage to personal property from fire claimed to have been communicated from one of the defendants’ locomotives. Trial before Branch, J., and a jury. Verdict for the plaintiffs. Transferred from the April term, 1915, of the superior court on defendants’ exception to the remarks of counsel. - The property was in a barn owned by one Partridge which was burned.

Case, for personal injuries. The declaration alleges that on March 28, 1913, the plaintiff was employed as a teamster by one Totman, who let his teams to the defendant for hire; that the plaintiff under the arrangement was driving one of Totman’s teams in performing the work of the defendant, under the direction and control of the latter; that while so engaged it became necessary to cross a ditch by backing his horses and a dray over a bridge which through the negligence of…

Petition, by the governor and council on behalf of the state, alleging that in the year 1911, proceeding under the provisions of the act providing for the acquisition of Crawford Notch by the state (Laws.1911, c. 130), the then governor and council caused a survey of the locus to be made and filed in the office of the secretary of state, and applied to the court for the appointment of commissioners to assess the damage to the owners; that a commission was appointed, heard…

Petition, for leave to file a statement of personal injuries under P. S., c. 76, ss. 8, 9. Transferred from the April term, 1915, of the superior court by Chamberlin, J. The court found that the plaintiff was unavoidably prevented from filing her claim within the time prescribed by the statute and that manifest injustice would be done unless she is now permitted to file the same.

Petition for Partition. The defendant filed an answer alleging that the property could not be divided and ought not to be sold because if that were done she would lose a very large sum of money she had put into the property at the plaintiff’s request, and in reliance on her promise that she (the defendant) might occupy it as a home as long as she lived.

Petition, for advice in the expenditure and disposition of the income of a trust fund created by the will of Harriet Stark for the care of the Stark “Family Burying Ground or Cemetery” in the town of Dunbarton. Transferred from the April term, 1915, of the superior court, by Chamberlin, J., upon facts found but without a ruling.

Assumpsit, for damages occasioned by the defendant’s occupation of a certain piece of land in Walpole and by the erection and maintenance of a fence on the plaintiff’s land. The defendant admitted the occupation of the land, but denied that it was liable for certain inconveniences claimed by the plaintiff, because the same had been litigated and adjusted in a former suit between the parties. There was a trial by jury and a verdict for the plaintiff.

Case, to recover for the death of the plaintiff’s intestate, Philip Wilson, while in the defendants’ employ, brought under the federal employers’ liability act, of April 22, 1908; 35 U. S. Stat. 65 (c. 149). Trial before Branch, J., and a jury. Transferred from the September term, 1915, of the superior court upon the plaintiff’s exceptions to the exclusion of evidence and to an order of nonsuit. The plaintiff’s evidence tended to prove the following facts.

Trover, for converting a camp and its contents. Trial by jury and verdict for the plaintiffs. Transferred by Sawyer, J., from the April term, 1915, of the superior court on the defendant’s exceptions (1) to the denial of his motion for a directed verdict, (2) to the charge and (3) to statements made by the plaintiffs’ counsel in his closing argument.

Bill in Equity, by the plaintiff individually as a taxpayer and officially as the mayor of Dover against the police commissioners and the chief of police of the city, to restrain the defendants from seeking to appropriate the funds of the city to the payment for an automobile patrol wagon. The defendants purchased the wagon intending to use the city’s money in payment therefor.

Appeal, from the laying out of a highway over the plaintiff’s premises. The county commissioners found there was necessity for the proposed highway. Many witnesses testified before them, giving their opinions upon the question and their reasons therefor. There -are no houses on the new highway except one at the end, called the Newell place. The occupants of the Newell place have a way by prescription over the route of the proposed highway.

<p>On the question of a master’s negligence in putting a servant, a minor, to work upon a defective machine without notice, and on the question of the servant’s due care in view of his age, his ignorance of the machine and the insufficient lighting of the work-place, — Held, that certain evidence was properly submitted to the jury.</p> <p>The drawing of unwarranted inferences from the evidence by counsel is eorrectibleby the trial court in its charge to the jury; and, if application for such correction is not made, such inferences, though prejudicial, are not ground of reversal.</p> <p>Counsel, in drawing an inference in argument, may present it in the form of an affirmative statement.</p> <p>Case, for negligence. Trial by jury and verdict for the plaintiff. The defendant’s motion for a nonsuit was denied subject to its exception. No evidence was introduced by the defendant. It also excepted to certain remarks of plaintiff’s counsel in argument. Transferred by Branch, J., from the January term, 1915, of the superior court. The facts are sufficiently stated in the opinion.</p>

<p>The right to recover a forfeiture for the wilful cutting of trees, conferred by P. S., c. 244, s. 1, upon the person injured, was not abolished by Laws 1899, c. 31, s. 1.</p> <p>Where a lease contains a covenant by the lessors that upon payment of a certain sum the right of the lessors to enter into the premises should be utterly extinguished and in lieu thereof the lessee should hold the premises by paying a nominal rent, if demanded, upon performance of the condition the title becomes practically a freehold clogged with such rent charge.</p> <p>A thing which is within the letter of a statute is not within the statute unless it be within the intention of the makers.</p> <p>An oral promise to transfer land, if the promisee “go there and live and fix up the buildings,” is sufficient to establish an equitable title upon proof of performance in reliance upon the promise.</p> <p>The objection, that the statute on which an action is founded has been repealed, may be taken, though for the first time, in the supreme court.</p> <p>An objection to the insufficiency of evidence must be made before the case is submitted, unless the omitted necessary fact is impossible of proof.</p> <p>Debt, upon c. 244, P. S., for a penalty for wilfully cutting trees. Plea, the general issue with a brief statement admitting the cutting but alleging the defendants’ belief in their ownership of the land, and that the plaintiffs had no interest in it. Trial by jury and verdict for the plaintiffs. Transferred from the May term, 1914, of the superior court by Branch, J.</p>

(1) Trespass, quare clausum, to try the title to real estate. (2) Bill in Equity, to establish the divisional line between the parties and to enjoin the suit at law. The cases were tried together by Kivel, J., without a jury, at the September term, 1913, of the superior court. A verdict was found for the plaintiff in the action at law, and a decree was made in the equity case locating the line as claimed by Barker. The company filed a bill of exceptions, which was allowed.

Case, for negligence. Trial by jury and verdict for the plaintiffs. A view was taken by the jury.

Assumpsit, to recover for personal services rendered and money expended by the plaintiff's for the Winnipesaukee Company, a Maine corporation, having its principal place of business at Alton in this state. The services were rendered for the most part in this state, some being rendered in Massachusetts. The defendants were directors of the corporation, and one of them was its treasurer.

Assumpsit. Service was made on the defendants, a Maine corporation, by giving an attested copy of the writ to the secretary of state. Transferred by Branch, J., from the October term, 1915, of the superior court on the defendants’ exception to the denial of their motion to dismiss on the ground that the copy given to the secretary of state did not include a copy of the officer’s return of the attachment of their real estate.

Assumpsit, for goods sold. Trial by the court and verdict for the plaintiffs. The defendants, who are husband and wife, visited the plaintiffs’ store in June, 1914, and bought the goods in question for Merrill & Co., a partnership of which they were the members. Transferred by Branch, J., from the April term, 1916, of the superior court on the wife’s exception to the verdict.

<p>A plaintiff may maintain an action within one year after a voluntary nonsuit, for all causes of action arising within the time limited for the inception of the original action, under P. S., c. 217, s. 9.</p>

<p>The only charges against the damages recoverable under P. S., c. 191, s. 13 for wrongfully causing death, are the expenses of recovery, hence such damage are not assets for the satisfaction of creditors’ claims against the estate.</p>

<p>Where a tender has been made and the money paid into court and received by the plaintiff under a mistake as to the terms of the tender, justice requires that the money be returned to the clerk and that the defendant be permitted to elect whether he will make a new tender or withdraw the money.</p> <p>Assumpsit. Plea, the general issue with a brief statement alleging tender, with a payment into court of the amount of the tender, and acceptance thereof. The money was paid the clerk, Nov. 24, 1914. Jan. 18, 1915, it was paid to the plaintiff’s attorneys. The court ruled that the receipt of the money by the plaintiff’s attorneys was a bar to the further prosecution of the suit, and dismissed the action. The plaintiff excepted to the order of dismissal. Transferred from the January term, 1915, of the superior court by Kivel, J.</p>

Appeal, from the Lincoln municipal court. Trial by the court. The complaint charged a sale of spirituous liquor. It was agreed that the defendant sold “Uno” beer, a fermented liquor containing 66/ioo'of one per cent of alcohol, by volume at 60 degrees Fahrenheit. The amount of alcohol contained in the beer is so small that the beer is not intoxicating. Subject to exception, the court ruled that the defendant was guilty.

Bill in Equity, praying for advice as to the termination and distribution of the trust estate created by the will of Hiram Barker, and for a decree of distribution. Various questions arising under this trust have been considered by the court in the following cases: Edgerly v. Barker, 66 N. H. 434; Edgerly v. Barker, 67 N. H. 443;, Brown v. Berry, 71 N. H. 241; Barker v. Barker, 73 N. H. 353; Barker v. Eastman, 76 N. H. 277.

Petition, for a writ of mandamus against the defendants as the selectmen of Danbury praying that they be commanded to establish boundaries for a village district in Danbury under chapter 53 of the Public Statutes.

Petition, for the abatement of taxes assessed by the defendants upon certain personal property of the plaintiffs for the year 1913. The facts were found by the tax commission on reference by the •superior court, and are sufficiently stated in the opinion. Transferred without a ruling from the April term, 1915, of the superior court by ■Chamberlin, J.

Bill in Equity, filed September 2, 1910, by the plaintiff and thirteen others in behalf of themselves as members of the Lithuanian St. Cassimer Roman Catholic Society of Nashua, and of all other members who might wish to join as parties plaintiff, alleging the deposit by the society with the bank of the sum of $7,116.26 which the bank, though requested, refused to pay to the society.

Writ oe Entry, dated August 12, 1913. Trial by jury and verdict for the plaintiff. Transferred from the September term, 1915, of the superior court by Sawyer, J. The plaintiff claims title to a certain lot of land in Hillsborough, designated for convenience at the trial as lot C, which she supposed was included in the description contained in a deed to her from the defendant dated July 3, 1885, but which was not so included.

The court is bound, in the case of an interstate shipment, to enforce the federal decisions: BQston & Maine R. R. v. Hooker, 233 IF S. 97. In the absence of- express contract, a carrier is not bound to deliver in time for a particular market: Michie Carriers, pp. 608, 630; Sauter v. Atchison &c. Ry. Co., 78 Kan. 331; Coffin v. N. Y. C. R. Co., 64 Barb. 379, affirmed in 56 N. Y. 632; The Caledonia, 157 U. S. 124.

Assumpsit, to recover $1,000, as beneficiary under a certificate of railway insurance, issued to the plaintiff’s son, Philip L. Wilspn. The defendant is a corporation chartered under the laws of Canada, independently organized, yet connected with the Grand Trunk Railway. Its membership is confined to the railway’s employees, and the railway contributes each half year out of its revenues a sum equal to the total assessments paid by members of the society.

Probate Appeal, from a decree disallowing a will of Horatio N. March, and allowing an earlier will. The jury found that the later will was executed with the formalities required by law, but that the testator was not of sound mind when he executed it. Prior to the making of the later will, the appellant, Hale, presented a petition to the probate court, setting forth that March was insane, and praying for an inquisition.

Trover, for a diamond ring. Facts agreed.' March 7, 1912, the plaintiffs’ agent sold the defendant the diamond ring for $150, and the defendant signed a lease agreeing to pay the price stated and stipulating that the title should vest in him upon payment of the full amount. Fifty-seven dollars is still unpaid. The plaintiffs’ agent had no license as a hawker and pedler, and was violating the statute when this sale was made. (P. S., c. 123, s. 1).

<p>At the close of the state’s evidence, the defendant moved that he be discharged upon the following grounds: 1. That there was no evidence that the statute had been violated, 2. That the statute was unconstitutional in that it was designed to compel a person to furnish evidence against himself. The motion was denied and the defendant excepted.</p> <p>The defendant testified that after his truck struck Mrs. Sutcliffe he stopped it and returned to the place where she was lying, that there was no other person in sight, and Mrs. Sutcliffe appeared to be dead, that he then became panic stricken and drove away.</p> <p>. At the close of all the evidence the defendant renewed his motion to be discharged upon the grounds above set forth. This motion was denied and the defendant excepted. He also excepted to the ■charge as given.</p>

Case, to recover for an injury to the plaintiff’s eye. Trial by jury and verdict for the plaintiff. The defendants employed the plaintiff in constructing a public sewer, and, as he was striking a drill, the head of which was “mushroomed,” a piece of steel struck him in the eye. Transferred from the January term, 1916, of the superior court by Kivel, J., on the defendants’ exceptions to the denial of their motions for a non-suit and for a directed verdict.

Petition, by the executor of Sarah J. Clark’s will for advice as to the construction of the residuary clause, which is as follows: “the balance of my estate ... I direct to be divided equally among the heirs of my late husband, Hiram M. Clark.” The defendants are Hiram’s grandson and his nephews and nieces.

Bill in Equity, to restrain the defendant from entering the premises of the plaintiffs and removing certain timber therefrom. By agreement of parties the only question submitted to the court was the construction of the deed from the plaintiffs to the defendant.

Assumpsit. Tria] by jury and verdict for the plaintiff. The court, subject to the plaintiff’s exception, set the verdict aside on the ground that while it appeared that the defendants’ president employed the plaintiff to sell their mine it could not be found that he was authorized to employ him. The evidence is sufficiently stated in the opinion. Transferred from the May term, 1915, of the superior court by Pike, C. J.

<p>The defendant’s motions for nonsuits were denied, subject to exception. After the verdicts were returned, the defendant moved to set them aside as against the law and the evidence, and in support of the motions showed the following facts: In 1913 and 1914 Franklin received from the state qertain sums apportioned for state aid to the city for expenditure upon the Hill road, and the money was so expended. At the close of the season in 1914 the work of reconstruction had extended from Franklin to within about two miles of the place of the accident. The furnishing of state aid to continue the work in 1915 depended upon the action of the city in appropriating more money and again making application for state aid. No such application was made until 1915. In 1913 a culvert, some 800 feet from the place of the accident, was reconstructed with state aid and under state supervision. The accident happened about 115 feet from the Hill line, and the road in that town was state aided.</p> <p>It was found that the defendant and its counsel were not negligent in not knowing of the provision of Laws 1903, c. 54, s. 6, relating to non-liability of cities and towns for accidents occurring upon state aided roads. The motions were denied, subject to exception.</p>

Petition, filed during the January term, 1915, for leave to enter as of the September term, 1914, a writ returnable at that term. The defendants, a New York corporation, were doing business in this state May 22, 1914, when the plaintiff attached their property.

<p>A verdict is not set aside for an error which the course of the trial renders immaterial or which is against the prevailing party.</p> <p>A judge is not bound to instruct the jury upon an abstract proposition; and before he can be required to give particular instructions, there must be relevant evidence on which to found them.</p>

Bill in Equity. After the decision in this case, ante, 33, an order was made that the execution should be paid by Loveren out of the funds in his hands as agent of the New England Investment Company. The ice company was insured against the plaintiff’s claim, and, owing to the insurer’s insistence that an exception to the above order should be taken by the assured and the case carried to the supreme court, the ice company took the exception.

Case, for negligently causing personal injuries to the plaintiff in interest. Trial by jury and” verdict for the defendants. The defendants are the owners of a tenement house., having one tenement on the ground floor and one on the second floor, each having a . separate entrance. Each tenement had also a finished room in the attic, but it was not shown whether they were reached by a common stairway or by separate passages.

Case, for personal injuries. Trial by jury and verdict for the defendant.

Assumpsit, on a promissory note which is as follows: “$3,000. April 12, 1912. On demand after date.I promise to pay to the order of William A. Garnsey three thousand dollars at 6% payable semi-annually. Value received. Witness: Elnora Gerry George B. Chase. Alberto I. Gerry.” On the back of the note is the blank indorsement of William A. Garnsey. The signature of Elnora Gerry has not been treated by the other parties as of much account. The real debtor is Alberto.

<p>Cask, for negligence. Trial by jury. At the close of all the evidence the defendants’ motion that the court direct a verdict for the defendants was granted, subject to the plaintiff’s exception. Transferred from the December term, 1915, of the superior court, by Chamberlin, J.</p> <p>The plaintiff’s intestate was his four year old son, who, on May 6, 1915, was run over and killed by a freight car of the defendants on the Longfield siding in the east yard at Gorham, N. H. The plaintiff’s intestate lived with his parents in Gorham, and the Nappi house fronted on the south side of the right of way of the Grand Trunk Railway’s east yard.</p> <p>About four hundred and fifty feet west of the Nappi house the yard and tracks of the defendants are crossed at grade by a highway called Glen stre'et. Extensive yards with side tracks and switches have been built in the village of Gorham. Beside the main line which runs through the village, side tracks, connecting with the main line and with each other by means of switches, have been constructed, and are used for switching cars, making up trains and general yard purposes. The portion of the right of way east of the Glen street crossing as far as the Peabody river is sometimes called the east yard, while the portion west of Glen street crossing is known as the west yard. Both portions are in reality one yard and are used for switching cars, making up trains and for doing other yard work.</p> <p>Main street runs on the north side of the railway yard and tracks, and is substantially parallel with them, and dwelling houses have been built and occupied on substantially both sides of this street.</p> <p>Washington street lies on the south side of the east yard and extends easterly from Glen street. Oil the south beyond Washington street are the lumber yard and mills of E. Libby & Sons Company. The total length of the east yard from the Glen street crossing to the railroad bridge over Peabody river is fifteen hundred and forty-nine feet. ' The width of this yard between Main street on the north and Washington street on the south is ninety-nine feet. The part used for tracks has been graded and is generally higher than'the land on each side. About midway between the crossing and the bridge the land on the south side is as high or higher than the graded part of the right of way. This is easterly of the Nappi house and at this point a side track leaves the yard and runs to E. Libby & Sons Company’s mill.</p> <p>The trackage in the east yard consists of one straight main line track, two side tracks (called Flynn’s siding and Longfield’s siding), and the spur track leading to Libby & Sons Company’s mill, before mentioned. All of these side tracks are on the southerly side of the main line. The first side track on the southerly side of the main line is called the Flynn, or scales siding. Flynn’s siding starts from the main line near Peabody River bridge, runs westerly beside the main line to a point somewhere west of the Glen street crossing, in the defendants’ yard, and there connects with the main fine.</p> <p>A little west of the easterly end of the Flynn siding, the Longfield siding leads off on the south side and runs westerly, next and parallel to the Flynn siding, past the Nappi house, nearly to the Glen street crossing. The Longfield siding, upon which the intestate was killed, can be entered only by means of the switch in the Flynn siding at the easterly end of the Longfield siding.</p> <p>Between the railway and the adjoining property on the south side there was no fence and there had been none for many years; and the testimony tended to show that there were fifteen paths, showing signs of much use, leading into the east yard from the south side, one of which led past the Nappi house.</p> <p>Before the movement of the cars which caused the intestate’s death there were eight cars standing on the Longfield siding. They had been there for some time. One group of six cars extended from near the east end of the Longfield siding, to a point opposite or a little past the west end of the Nappi house. A person standing by the switch at the beginning of the Longfield siding, could not see a person between the tracks at the end of this group of six cars, as the view would be shut off by the cars and the trucks.</p> <p>On the day of the accident, a freight train running from Island Pond, Vermont, to Bethel, Maine, reached Gorham at 12.50 p. m. with about a dozen cars, and in switching some of these cars onto the Longfield siding the Nappi boy was killed. No one went to the west end of the group of six cars before the cars were moved to ascertain if anyone was in danger.</p> <p>The evidence tended to show that pedestrians used the right of way in the east yard, and that children played there.</p> <p>Other facts appear in the opinion.</p>

Appeal, from conviction and sentence by the municipal court of Portsmouth upon a complaint for offering for sale and selling without a license lightning rods and material for the protection of buildings from damage by lightning, in violation of c. 128, Laws 1915. Transferred from the January term, 1916, of the superior court, by Kivel, J., upon an agreed statement of facts, without a ruling.

Case, for negligence resulting in the death of the plaintiff’s intestate, Thomas Ford. Trial by jury and verdict for the plaintiff. Transferred from the October term, 1915, of the superior court by Pike, C. J. Ford was killed December 25, 1914, at the passenger station at Exeter. He was at the time employed as an express messenger of the American Express Company, in which capacity he had been employed for some years.

<p>If in trustee process proper notice of the attachment has not been given to anon-resident defendant, a judgment against the trustee is not void, but he may be protected by an order of service or notice pursuant to P. S., c. 219, s. 9.</p> <p>If a contract of indemnity to a fixed aipount be merged in a judgment for that sum, interest is payable thereon as on any judgment, together with costs.</p>

<p>Case and Trespass, for personal injuries. , The plaintiff, a trespasser upon the defendants’ tracks at West Lebanon, was struck and injured by the defendants’ car. A notice complying with' c. 75, Laws 1899, forbidding trespass was posted by the defendants before and at the time of the plaintiff’s injury, May 5, 1913. The plaintiff knew of the notice. Trial by jury and verdict for the defendants. Transferred from the April term, 1916, of the superior court by Chamberlin, J.</p> <p>The car was a caboose which was “kicked” westerly over the track upon or near to which the plaintiff was walking in an easterly direction. A brakeman named Crowe was riding on the west end of the caboose with his hand on the brake, ready to make a quick stop, and he saw the plaintiff, but the evidence as to how far she was from the'car when he saw her, and as to the speed of the car and as to the distance within which the car could be stopped was conflicting.</p> <p>The plaintiff excepted (1) to the refusal to instruct the jury that, “as the phrase 'willful or gross negligence’ is to be applied in this case it means, merely, that the plaintiff must prove the defendants’ brakeman on the car saw her in a place of danger, and that she apparently did not know the car was coming, and that he could then have prevented the injury by using ordinary care;” and (2) to the charge as follows: “Plaintiff excepts to charge that under the evidence gross or wilful negligence means anything more than the omission of ordinary care to avoid injuring plaintiff after Crowe saw her and that she did not know the car was coming.”</p> <p>The court charged the jury, in part, as follows: “Wilful is another word, but it is not used to describe a different degree of carelessness. . . . [The statute] meant conduct that directly resulted in the accident, and a determination, whether formed on the instant or reasoned out by a process of logic, which was intentional conduct . . . The lawful meaning of the term 'willful/ as used in the statute, is illustrated by the following: willfully done; knowingly done, but with utter disregard of the consequences to those whom it is known will be affected by the act.”</p>

Assumbsit, to recover moneys received by the clerk of the municipal court of Concord, as fines imposed by that court for violations of Laws 1911, c. 133, s. 19. The offences were committed and the fines imposed in June, 1915. The question whether under existing law it is the duty of the clerk to pay over these funds to the state treasurer was transferred upon agreed facts and without ruling from the October term, 1915, of the superior court by Branch, J.

Case, by a husband for negligence resulting in the loss of his wife’s services and society. Trial by jury and verdict for the plaintiff. The plaintiff’s evidence tended to prove that his wife was injured at about 10 p. m., October 2, 1911, near the corner of Manchester and Elm streets in Manchester. Elm Street runs north and south and Manchester Street east and west.

(1) Petition, for an abatement of the tax assessed against Catherine Paris, the plaintiffs’ testatrix, by the town of Charlestown in 1914. (2) Probate Appeal, from a decree of the probate court of Sullivan county dismissing the plaintiffs’ petition for leave to file a copy of her will. The court found that Mrs. Paris, who had resided in Charles-town for many years, neglected to comply with the provisions of P. S., c. 57 in 1912 and was doomed.

Petition, for an injunction to restrain the defendant from using a building within the limits of the fire district in the plaintiff precinct for a blacksmith shop. A demurrer to the bill was overruled, subject to exception. The commissioners of the precinct granted the defendant a permit to “build a barn to house one or two horses on his premises. . . . Said building is not to be used for a blacksmith shop nor for any other purpose than stated above.

Case, under the federal employers’ liability act, to recover damages for injuries resulting in the death of the plaintiff's intestate, Doud Muslin. Trial by jury resulting in a disagreement. The defendant’s motions for a nonsuit and a directed verdict were denied, subject to exception, by Pike, C. J., who transferred the case from the April term, 1916, of the superior court. The facts are stated in the opinion.

Bill in Equity, praying fo? the specific performance of an alleged oral contract by which Eben L. Bartlett, deceased, agreed'1 to convey certain real estate on Harrison Street in Manchester to. the plaintiff, in consideration of her promise to occupy the premises and render certain services to him as a housekeeper and nurse. The defendant is the heir and administrator of Eben, who died intestate.

<p>Petition in Equity, brought by the plaintiff, under chapter 163, Laws of 1911, to recover compensation for injuries received while he-was employed by the defendants in erecting a carrier for pulp-wood. Previous to the plaintiff’s injuries, the defendants had accepted the-provisions of the act.</p> <p>The defendants own and operate several large mills at Berlin, in some of winch they manufacture pulp stock. In such mills th& defendants employ five or more persons in manual or mechanicaL labor, and operate machinery propelled by mechanical power.</p> <p>The plaintiff was injured by a plank falling and striking him oru the back while engaged with five or more fellow-servants in erecting between the side tracks of the Grand Trunk Railway and Dead river, a carrier, which, when completed, is to be used to convey pulp-wood from freight cars to the river to be floated down to the defendants’ mill situated some two miles below on the Androscoggin river. The carrier, being more than a-mile from any of their shops, mills or factories, will be physically separate and distinct from any shop, mill, factory or other place of the defendants where they require the services of their employees. The carrier will consist of a large Y-shaped trough, supported on wooden horses resting on foundations set in the earth. At the-bottom of the trough will be an endless chain carried around drums- ■or wheels at the ends of the carrier, and having blocks attached thereto at regular intervals, which will force the pulp-wood along the trough to the end, where it will fall into the river. When in •operation, the chain will be propelled by mechanical power. At the time the plaintiff was injured, he was engaged with other servants of the defendants in erecting one of the wooden horses for the support of the trough. No part of the trough or chain had been placed in position, nor had any of the apparatus been then installed for propelling the chain. The question of the applicability of the act was reserved.</p> <p>Transferred from the April term, 1916, of the superior court, by .Sawyer, J.</p>

Petition, for injunction, heard and denied subject to exception;, upon the following agreed statement of facts. The plaintiffs are the highway agents and the defendants the selectmen of the town-of Hampton. At the annual meeting in March, 1916, the town appropriated S500 to build a sidewalk, which the defendants are now building without employing the highway agents in the work.

Bill in Equity, by the plaintiff as a trustee under the will of' Annie M. Freeman against Lake as the administrator de bonis non of Mrs. Freeman’s estate and against Doherty as the administrator of Andrew N. Freeman’s estate, Andrew being the son of Mrs. Freeman. ■ The question presented arises under the 'fourth clause of the will which is as follows: “Fourth.

Bill in Equity, for specific performance of an alleged agreement of defendant’s testate to convey land to the plaintiff as compensation for his services rendered her during her lifetime. The evidence of disinterested witnesses was introduced, showing that the plaintiff worked for the deceased for a number of years.

Bill in Equity, by the heirs at law of Camille Gagnon to remove a cloud from their title to land in this state, of which he died seized and which he devised to the parish of St. Jacques de PAchigan in the Province of Quebec, in trust for the following purpose, that is to say, to build “a church in said Parish. . . .

Assumpsit, on a promissory note for two hundred and fifty dollars.. signed “Merrill & Co.” and executed by Arthur K. Merrill. The note was payable to the order of S. B. Withington, and was endorsed, to the plaintiff for value, before maturity. It was originally given for the purchase price of a horse bought by the defendants of With-ington.

Appeal, from the public service commission, filed September 23, 1916. Previous decisions in the same controversy are reported, 77 N. H. 490 and 77 N. H. 539. After the last decision further evidence was introduced before the commission as to the value of the property which the plaintiffs, wished to capitalize.

Libel for Divorce, charging abandonment and refusal to cohabit. In June, 1910, the defendant left the plaintiff’s bed without cause and without his consent and has ever since refused to live with him as his wife. They lived in the same house until June, 1914, when she moved into another, where she has since resided. The question whether the foregoing facts constitute a cause of divorce was transferred by Kivel, J., from the March term, 1916, of the superior court.

<p>Petition, for the assessment of damages under the ffowage act, P. S., c. 142, ss., 12-19. Trial by jury and verdict for the defendant. A bill of exceptions was allowed by Branch, J.,-at the May term, 1916, of the superior court.</p> <p>Plaintiff showed title to the premises since 1903 by deeds dating back to 1851. The defendant claimed the right to flow the plaintiff’s land by virtue of a verbal agreement made in 1854 by his father, his predecessor in title, with the owners of land above the dam, at which time a letter “H” was cut in a rock near the pond above the dam to mark the height to which the parties agreed that Noone might raise the water. Defendant also claimed a prescriptive right' to flow the plaintiff’s land.</p> <p>The plaintiff called the defendant as a witness and excepted to cross-examination of the defendant by his own counsel which was allowed by the court. The plaintiff also excepted to testimony of the defendant that his father told him that the mark “H” was the point to which he had the right to raise the water, and to what one Gallup, at one time superintendent of the mill, since deceased, told him as to the placing of the mark upon the rock. Subject to exception, the defendant also introduced the testimony of Gallup, given in 1899 or 1900, in a suit, Noone v. Peterborough, in relation to the same subject, and to the testimony of one Wallace as to what Gallup told him about the mark “H.” Gallup’s statement as testified to by the witnesses was in substance that the letter “H” was cut by him upon the rock by agreement of all concerned to establish the point to which the water might be raised, as to which there had been controversy between Noone and a Mr. Shedd; that Shedd, Noone, Upton, Fife and several others were present, some five or six in all. Shedd and Upton owned lands bordering the stream above the dam. The plaintiff’s predecessors in title were not directly referred to in the defendant’s evidence, but it appeared from evidence subsequently introduced by the plaintiff that one of them knew of the mark, although according to the testimony he explained it as marking the point the water had once reached. Other facts are stated in the opinion.</p> <p>Plaintiff’s counsel in argument said ho knew certain of the witnesses and wished the jury knew them. Subsequently he apologized for the remark and the jury were directed by the court to disregard it. Plaintiff also excepted to a statement by defendant’s counsel that sprout land was worth only five dollars an acre, no evidence having been introduced upon the subject.</p>

<p>By the law of Massachusetts, an action upon a guaranty of rent reserved upon a lease for years is barred by an eviction from a part of the demised premises; and a conveyance to a city for a street by the lessor, and the grantee’s occupation constitutes such eviction.</p>

Assumpsit, for breach of a special contract. Trial by jury. The plaintiff’s evidence tended to prove that he made a contract with the défendants in November, 1911, by the terms of which they were to pay him two hundred and fifty dollars a month and give him permanent employment as manager of their surety department. He began work for them December 1,1911, and was discharged without cause the following March.

A rule of the road provides that the rear brakeman must ride in the caboose and remain at the rear to guard that end of the train. The train crew were under the authority of the conductor and bound to obey such orders as he gave. After leaving Jefferson Junction (the last station before Quebec Junction) Crosby, who was riding on top of the third car from the engine, saw Castonia with his lantern coming over the top of the rear cars.

<p>An issue for a jury may be framed by a court of equity whenever it finds that a verdict may aid the court.</p> <p>On a bill by a widow to set aside a gift by her husband as in fraud of her vidual rights, the issues, whether his motive was to prevent her obtaining her distributive share of his estate, and whether the ordinary man in his situation would have made the gift, are relevant to the question of its legality.</p>

Case, upon the employers’ liability act for personal injuries. Trial by jury and verdict for the plaintiff. At the close of the plaintiff’s evidence the defendants moved for a nonsuit on the ground that a cause of action had not been shown. The nonsuit was denied, and the defendants excepted. The facts appear in the opinion. Transferred from the May term, 1916, of the superior court, by Peaslee, J.

Petition, under section 1, chapter 66, Laws 1893, to determine the title to the office of sheriff of the county of Hillsborough, to which the defendant was declared elected. The petition alleged that upon a correct count of the ballots cast the petitioner received a plurality of the votes for the office of sheriff and was elected.

Case, for negligence. Trial by jury and verdict for the defendants. The evidence tended to show that on the date of the accident the plaintiff was working in a ditch on Marlboro street in Keene; that the defendant, Cota, was driving his horse on the street when, upon the approach of a street car, the horse became nervous and finally upset the carriage and ran away, knocking the plaintiff down and inflicting the injuries complained of.

Case, for negligently injuring the plaintiff, a traveler on the highway, át a grade crossing. Trial by jury and verdict for the plaintiff. To the denial of the defendant’s motions for a nonsuit and a directed verdict the defendant excepted. It also excepted to •the admission of certain evidence. The facts are sufficiently stated in the opinion. Transferred by Chamberlin, J., from the December term, 1915, of the superior court.

<p>Assumpsit, for milk sold. Trial by jury. The evidence tended' to prove that the plaintiff, who had been shipping milk from his-farm in Vermont to the defendants in Manchester, N. H., for a year or more, leased his farm in October, 1914, and agreed with the-tenant that he should continue to ship milk to them but should ship it in the plaintiff’s name, who should collect payment therefor and, after deducting his rent, turn the balance over to the tenant. On July 21, 1915, one of-the city inspectors found that two cans of the plaintiff’s milk were not up to standard and, on August 6, three more cans. Certain shipments were inspected by the defendants’ employees when unloading the milk from* the cars and they accepted all of it and used it in their business without notifying the plaintiff until September 1, 1915, that there was any trouble with it, when they sent their treasurer to him, who, after telling him that criminal proceedings either had been or would be instituted against him, said that they would not appear against him if he would allow them one hundred dollars on the account. The plaintiff agreed to this and gave the defendants’ treasurer a receipt for one hundred dollars on the milk account.</p> <p>A few days later the plaintiff wrote the defendants and repudiated the agreement and asked them to return the receipt to him.</p> <p>In reply they wrote him that the agreement was valid and that-the enclosed .check together with the one hundred dollars he had agreed to allow them represented the amount they owed him at that-time and that the check was sent in settlement of the account. On its back was written: “This check in payment of all milk received, to date.” The plaintiff drew a line through these words, endorsed the check and deposited it for collection, and a day or two later brought this suit. The jury found (1) a general verdict for the plaintiff; (2) that all the milk except five cans was up to standard; (3) that the plaintiff did not accept the check in settlement of the milk account. The court refused to instruct the jury that if the plaintiff erased the receipt on the back of the check without the defendants’ consent it would not affect the condition on which the check was sent. Transferred by Sawyer, J., from the April term, 1916, of the superior court on the defendants’ exception to this ruling and to the denial of their motion for a directed verdict.</p>

Case, for negligence. Trial by jury. The plaintiff’s evidence tended to prove that he was a painter of thirty-five years’ experience. He was employed by the defendant, with other workmen, to paint the interior of a block. One of these men gave orders from time to time, which the plaintiff understood he was to obey. The men constructed their own stagings, as the work progressed.

<p>The officers of a foreign manufacturing corporation doing business in this state, which fails to make the returns required of domestic corporations by P. S., c. 150, ss. 1, 13, 14, 16, and by P. S., c. 148, s. 21, as amended by Laws 1911, c. 159, s. 1, are not subject to the individual liability imposed upon the officers of domestic corporations.</p>

Bill in Equity, in aid of an action at' law. The plaintiff brought action against the defendants, claiming the death of his testator, Josiah W. Emery, was occasioned by' the defendants’ negligence. The defendants pleaded the general issue with a brief statement setting up a release, under seal, of all claims against the defendants in consequence of the accident and injury referred to in the plaintiff’s declaration and executed by the plaintiff’s testator, December 26, 1913.

Petition, by the administrator appointed by the probate court of Hillsborough county to administer personal property belonging to the estate of Adelaide Todd, late of Canada, deceased, for advice as to what he should do with the property with which he is charged on the settlement of his account. Adelaide’s will has been duly proved and allowed by the district court of St. Francis, P. Q., but the executor is dead.

Appeal, from the laying out of land for cemetery purposes by the selectmen of Tilton.

Petition, by the towns of Tilton, and Belmont against the town of Sanbornton and the city of Laconia under P. S., c. 73, s. 4, for contribution toward the expense of highway construction, alleging that it has become necessary to build a new bridge connecting the plaintiff towns over Lake Winnisquam, a part of which bridge is to be in Tilton and a part in Belmont, that the expense of such construction will be about $50,000, one half of which will be paid by the state, and one…

Bills in Equity, for injunctions. The bills allege that the plaintiffs are manufacturers of machinery at Nashua, employing a large number of persons, many of whom are moulders; that the defendants are officers and members of a voluntary unincorporated association known as International Moulders Union of North America, Local, No. 257; that on or about October 11,1916, the defendants demanded that the plaintiffs compel all their moulders not members of said Local, No. 257, to…

Case, to recover for injuries from a collision upon a highway grade crossing of the defendant road. Trial by jury and verdicts for the plaintiffs.

Indictment for murder. The defence of insanity was suggested, and bills were presented by counsel for the defendant for the fees of experts employed to examine the defendant. No authority had been given to employ them at the expense of the county. At the October term, 1916, of the superior court Branch, J., disallowed the claim, allowed the defendant’s exception to the order, and transferred the question of authority to allow the bills against the county.

<p>In an action against a railroad for killing the plaintiff’s horse, which entered upon the track at a highway crossing, by reason of the absence of a cattle guard, the fact that the animal was unattended does not conclusively prove that it was unlawfully in the highway; and whether the owner was in the exercise of due care was properly submitted to the jury.</p>

Bill for Discovery, in aid of an action of tort to recover damages for .personal injuries. Upon a hearing on bill, answer and evidence the court found that the plaintiff, an employee of Lebanon, was injured by the breaking of a hoisting apparatus.

Case, for the recovery of damages to real and personal property occasioned by the pollution of John’s river in Dalton, by anthrax germs from the defendants’ tannery located on the river at Whitefield. Trial by jury and verdict for the plaintiff. Exceptions were taken by the defendants to the exclusion of evidence, to the charge of the court, and to the denial of the defendants’ motion for a directed verdict.

Assumpsit, on a fire insurance policy placed by defendants on plaintiff’s saw mill and machinery. Trial by jury and verdict for the defendants. The policy was issued April 24, 1914, by Geo. M. Stevens & Son Co., agents at Lancaster, through John H. Finley, their local agent at Colebrook, and was for one year. The property insured was destroyed by fire January 29, 1915. Proof of loss was duly made and filed with the defendants February 19, 1915.

Assumpsit, for aid furnished paupers. The paupers are the widow and minor children of one Moses Ayotte who acquired a settlement in Concord by the payment of poll taxes for the years 1906 to 1912 inclusive. In 1912 or 1913 Moses removed to Laconia where he died February 22, 1914. His widow and children shortly thereafter moved to Tilton where July 1, 1914, they applied to the overseers of the poor of Tilton for aid, which has since been continuously furnished them.

<p>Case, for injuries alleged to have been caused to the plaintiff by a fire set by the defendant’s locomotive. The first count alleged a right of recovery under the statute imposing liability upon railroads for damages caused by fires set by locomotives. There is also a general count for negligence and one setting out that the plaintiff was a member of the Concord fire department and received his injuries while acting in that capacity attempting to extinguish the fire. A specification filed later shows that the first count is for the same alleged wrong.</p> <p>The defendant’s demurrer was transferred without ruling by Sawyer, J. from the October term, 1916, of the superior court.</p>

Petition, under chapter 142 of the Public Statutes to assess the damages caused to the plaintiffs by the defendants’ flowing their land.

Bill in Equity, to wind up a partnership. Hearing by a master who found that the plaintiff having acquired the right to purchase two adjoining tracts of timber land for about half their value, entered into an oral agreement of partnership with the defendants “the terms of which were that in consideration that the plaintiff would share with the defendants the benefit of his efforts in securing the lots, and would look after and see to selling the same, the defendants were to…

Assumpsit, to recover for sick benefits upon an insurance policy issued by the defendants to the plaintiff. Upon an agreed statement of facts, which are sufficiently stated in the opinion, the court, pro forma, found a verdict for the plaintiff and the defendants excepted. Transferred from the December term, 1916, of the superior court by Chamberlin, J.

Libel por Divorce, tried before Kivel, J., who at tbe December term, 1916, of the superior court allowed this bill of exceptions. The libel alleges adultery as a ground for divorce, committed at Magnolia, Massachusetts. Several witnesses for the libelant testified that about the times alleged in the libel they saw the libelee in compromising relations with one or more men at Magnolia. In reliance upon this evidence the court on July 11, 1916, granted the libelant a divorce.

Bill in Equity, for the specific performance of an oral agreement. The defendant, having bargained with the Gilman heirs for a farm for which he was to pay $4,400 and having but $1,000, made an arrangement with the plaintiff by which he was to buy the timber on the farm for $1,900 and- loan the defendant the further sum of $1,500 which he needed to pay for the farm, the loan to be secured by a mortgage of the farm.

Assumpsit, to recover for board, room, care and special attention furnished the defendant’s testatrix, Hannah Carr, in her lifetime according to the following specification: To board and room from June 15, 1902 to March 30, 1907, 250 weeks at $4.00 per week, $1,000.00 “ board, room, washing, mending, nursing and special care of Miss Carr from March 30, 1907 to Feb- ! ruary 10, 1912,254 weeks at $5.00 per week, 1,270.00 “ board, room, washing, mending, nursing and special…

Tax Appeals. The first is an appeal from a tax assessed by the city of Concord in 1913 on materials used by the plaintiffs in building and repairing equipment at their Concord shops. After the opinion holding that the property was not taxable in Concord (ante, 192) was filed, the attorney-general intervened and asked the court to order the plaintiffs to pay the state a tax on the property in question for that year as the condition of a decree abating the illegal tax.

Petition, for an assessment of the damages caused by flowing the plaintiff’s land by the defendants’ dam. At a hearing before the court, it was agreed that the plaintiff acquired title from two to five years after the defendants’ dam was filled and the land first flowed. No damages have been paid by the defendants to the persons who owned the premises when the flowage commenced and no other petition for the assessment of damages for such flowage has been filed.

Bill in Equity, alleging that upon a writ in favor of Charles C. King against Thomas Karney a yoke of oxen was attached as the property of Karney; the defendants, Brown Brothers, gave bond to the plaintiff, Davis, sheriff of the county, and took possession of the oxen claiming them by virtue of a mortgage to them by the firm of Karney & Lloyd; and sold them at auction; that subsequently judgment and execution was obtained against Karney in the suit, King v. Karney, and the…

Appeal, from a decision of the state tax commission refusing to abate the tax assessed for the year 1916 against the plaintiff. Facts agreed. The plaintiff is a Wisconsin corporation, engaged in manufacturing chemicals and their products, which it sells in the usual course of commercial business. Mill owners are customers for some of its products, which it ships in hogsheads, barrels, or otherwise.

Action at Law, brought upon two counts: first, a count in debt upon a bond signed by the defendant as surety; second, a count in assumpsit for money had and received.

Assumpsit. Five actions to enforce liens for materials sold to the defendant Roberto Sanaghiaro, and used by him in the erection of a house on land standing in the name of his wife. He bought the land April 6, 1916, and on the 12th mortgaged it to one Salvatore for $1500. At the time the mortgage was executed, a partial excavation for the cellar of the proposed building had been made and the construction of the forms for concrete cellar walls had been commenced.

Case, for negligence, in which each party claimed to recover damages resulting from a collision upon the highway. Trial by jury and verdicts returned: (1) for the plaintiff Whiting, for $50; and (2) for him as defendant in the second case. Upon the announcement of these verdicts, the plaintiff, Whiting, moved to set aside the verdict as to damages upon the ground that upon the undisputed evidence his damages were $200.

Bill in Equity, to determine the rights of the parties in certain property conveyed to the plaintiff by the Epping Box & Lumber Co. Hearing by the court, who found that the defendant Hamilton mortgaged his interest in the business and property of a partnership, of which he was a member, to the defendant Woodsome on January 30, 1913, to secure the payment of his note for $1,000.

Covenant Broken, and Bill in Equity for the reformation of the deed relied upon in the action of covenant. The cases were heard together at the September term, 1916, of the superior court by Pike, C.J., who entered a verdict for the defendant in the action at law but made no order in the equity suit.

Case, for polluting the waters of Sugar river. After default the damages by agreement of parties were assessed by commissioners. The damage consisted of injury to cloth made in the mill pf the plaintiff, John. During the hearing before the referees it appeared that his father, Alexander Roberts, owned the business for a part of the time covered by the declaration, the specification ■of damages and the evidence.

Cáse, to recover for injuries in a collision upon a highway grade crossing of defendants’ road. Trial by jury and verdict for the plaintiff. In argument, the plaintiff’s counsel said: “Now couldn’t Mr. Grossbard reasonably and safely rely upon that flagman being there? What would you do, or I do, under those very circumstances? I hope that I am a reasonably safe man and I suggest that to you, and I believe that you gentlemen are reasonable men. . . .

<p>A waiver implies either a declaration in express terms to forego a right, or conduct justifying the inference of its relinquishment.</p> <p>The fact that an insurer believed that a policy had been legally canceled does not warrant the conclusion that the insurer intended to waive any condition of the policy in the event that the cancelation should be void by reason of the assured’s insanity, of which the insurer was justifiably ignorant.</p> <p>Payment of an insurance premium, not being required to be the personal act of the assured, may be performed by others, and hence his insanity does not ordinarily excuse payment.</p>

Case, for negligence. The defendant demurred to the declaration. The court overruled the demurrer and the defendant excepted. The declaration is sufficiently stated in the opinion. Transferred from the April term, 1917, of the superior court by Branch, J.

Trover, for household furniture &c. Trial by jury and verdict for the plaintiff. The evidence tended to prove that the plaintiff conveyed a farm to the defendant February 22,1916, it being understood that the plaintiff was to remove his personal property from the premises on or before April first, next. The plaintiff, owning the locks upon the barns where the property was stored, did not deliver to the defendant possession of these barns, but retained the keys.

Petition, to the supreme court for the appointment of trustees under the will of Hannah A. Currier, late of Manchester in said county, deceased.

Assumpsit, for the price of an automobile patrol wagon. Trial •and facts found by the court. The negotiations for the purchase of the wagon from the plaintiff were made by the police commissioners of the defendant city.

Petition, for a mandamus to compel the defendants as supervisors of the check-list in Rochester to put the plaintiff’s name upon the check-list of Ward 3. The court granted the prayer of the petition, and the defendants filed this bill of exceptions, which was allowed by Branch, J., at the September term, 1916, of the superior court. The facts are sufficiently stated in the opinion.

Bill in Equity, for the specific performance of a written agreement to convey land. Decree for the plaintiff. Transferred by Allen, J., from the January term, 1917, of the superior court on the defendant’s exception to the exclusion of evidence as to the extent of the plaintiff’s damages and to the court’s refusal to set aside the decree because the plaintiff had an adequate legal remedy.

Petition, for partition of a tract of land of which the plaintiff owns 7/32 and the defendant 25/32. Facts found by a master. August 29, 1908, Mrs. Frances W. Harris, the plaintiff’s mother, owned 25/32 of a homestead in Charlestown Village and held a life lease of 7/32 of the same, which the plaintiff owned. On that date she conveyed to the defendant and Helen M. Robertson, by warranty deed, a portion of this homestead.

Assumpsit, for lumber sold and delivered. Trial by the court and verdict for the plaintiffs. Their agent testified that the sale was made by telephone and they were permitted to introduce a bill from the telephone company showing a charge for connecting the plaintiffs with the telephone in the defendant’s place of business on the day the sale was made.

<p>The inadmissibility of documentary evidence for one purpose does not require its exclusion, if admissible for another purpose; and the presumption is that the court has limited the use of such evidence to the point to which it is legally applicable.</p> <p>A telegram sent by the plaintiff, a passenger, stating why her journey was delayed, and written five hours after the event therein described, being a self-serving declaration, is not evidence of the truth of the facts recited, but is admissible to prove the presence of the sender at the time and place indicated.</p> <p>Foreign law is a question of fact to be determined by the presiding justice; whose decision is not reviewable in the supreme court, if there is evidence to sustain it.</p> <p>Case, for negligence. Trial by jury and verdict for the plaintiff. The plaintiff’s evidence tended to show that on the 26th day of July, 1913, while a passenger on one of the defendant’s trains from Chicago to Berlin, N. H., at the city of Toronto, Canada, she was directed by the conductor of the train to leave the train while breakfast was served in the station; that later he directed her to board a train which she supposed was the Grand Trunk train on which she had been traveling, but which she learned was a Canadian Pacific train; that she was carried out of her way, missed her connection, and was obliged to wait from eight to nine hours at the station in Port Hope, Canada, before she could resume her journey, and that by reason of her disappointment and worry she was made ill, later had to submit to a serious surgical operation and was caused much suffering and expense. She was a native of Norway, and, at the time, some twenty-four years of age. The defendant moved for a directed verdict upon the ground that under the law of the Province of Ontario, where the defendant’s negligence, if any, occurred, no recovery could be had. The motion was denied and the defendant excepted. Other facts are stated in the opinion. Transferred from the December term, 1915, of the superior court by Chamberlin, J.</p>

Indictment, charging murder in the first degree. Plea, not guilty. Trial by jury, and verdict, guilty of murder in the first degree, with capital punishment. The defendant objected that the evidence- of the state was insufficient to authorize the submission of the case to the jury and that upon the whole case he was entitled to a verdict as matter of law.

Petition, for advice, by the trustee under the will of Albert L. Jones. Albert died childless in 1870 leaving a widow Mary W., a brother William, a sister Anne, a sister Emily, and seven nephews and nieces, children of his deceased sisters Susan and Elizabeth.

<p>A rule of a railroad relating to the operation and speed of trains in passenger stations only, and applicable only when a passenger train is in a station, was intended solely to protect the traveling public and a violation thereof is not evidence of a breach of duty to the railroad’s employees.</p> <p>Where a rule limited the speed of all trains entering a passenger station and was not applicable exclusively to the protection of passengers, .the question was properly submitted to the jury whether the rule was intended for the protection of ‘the railroad’s employees.</p> <p>The admission implied from the existence of a rule regulating conduct toward a certain class of persons using dangerous premises, that those precautions are necessary for their protection, is not an admission that the same precautions are needed to protect persons of another class, though using the same premises.</p>

Bills in Equity, to recover certain assets and money claimed to belong to the plaintiffs as remaindermen under the will of Richard Gage. Decree for the defendant in the first, and for the plaintiffs in the second suit.

Assumpsit, to recover upon a promissory k note for $250 dated January 6, 1915, signed Merrill & Co., payable to the order of S. B. Withington and by him endorsed. After the decision in this case, reported ante, 329, the plaintiffs filed a bill in equity against the defendants, in aid of and as an amendment to their suit at law, and by leave of court , amended the writ by making Sidney B. Withington plaintiff and by adding a count for goods sold and delivered.

- Petition, by the executor for construction of the will of Isabel J. Gale, and for direction. The will was executed April 8,1915, and the testatrix died November 29, 1916.

Assumpsit, to recover money paid a the price of a horse, on a sale induced by fraudulent representations. Trial by jury and verdict for the plaintiff. A sore had gathered on its hip and after discharging for a short time begun to heal. Before the horse completely recovered, the sore gathered again and broke out in a new place. This had been repeated several times before the defendant sold the horse to the plaintiff.

Assumpsit, for work done and materials furnished. Judgment for the plaintiff on the report of an auditor. The auditor found that the defendant’s husband asked the plaintiff to make a price for painting a house, telling him that it belonged to his wife, that the work was nothing to him and that any agreement she made would be satisfactory to him. The plaintiff told him he would like to do the work but that it was too large a job for him to figure.

Petition, under the flowage act, being the same case reported ante, 338. Trial by jury and verdict for the plaintiff.

Case, for negligence. Trial by jury and verdict for the defendants. The plaintiff, while traveling on August 4, 1915, in an automobile driven by a chauffeur in his employ, upon the highway between Claremont and Newport, was struck by one of the defendants’ trains upon Marshall crossing. Transferred from the November term, 1916, of the superior court, by Branch, J., upon exceptions taken by the plaintiff, which appear sufficiently from the opinion.

Case, for damages caused by a fire alleged to have been set by the defendant. Facts agreed. On July 14, 1911, the plaintiff was the owner of a trestle bridge extending from Auckland in the Province of Quebec and Dominion of Canada to Pittsburg in this state, spanning Hall stream, which is the international boundary at that point. On that date, one of the defendant’s locomotives which it was operating within Auckland set fire to the bridge, which was burned and destroyed.

<p>For jurisdictional purposes, a domicile once existing continues until another is acquired.</p> <p>Libel eor Divorce, for abandonment. The libelee for more than three years prior to the filing of the libel had her home and domicile in Portsmouth. The libelant had his home and domicile there up to a year or two ago, when he left the state, and has worked in one or more places since then. After leaving Portsmouth he retained no home there in a physical sense. He has no plan of returning to Portsmouth to reside. Nor has he acquired a domicile elsewhere. The question whether the court has jurisdiction to grant a divorce was transferred without a ruling by Allen, J., from the October term, 1917, of the superior court.</p>

<p>Case against a physician for negligently abandoning and thereby causing the death of the plaintiff’s intestate is an action of tort for physical injuries within the meaning of P. S., c. 191, ss. 8-13, and survives as therein prescribed.</p> <p>Whether one offered as an expert witness is so qualified and whether expert testimony will aid the jury are questions of fact.</p> <p>On cross-examination, the question: — “Is this story that you have told the jury the same story that you and X made up?” — is an insinuation that the witness is testifying falsely, and is admissible if there is evidence tending to prove that his testimony was wilfully false.</p> <p>Case, against a physician for causing the death of the plaintiff’s intestate. Trial by jury and verdict for the plaintiff. Transferred by Sawyer, J., from the May term, 1917, of the superior court on the defendant’s exceptions, to the court’s charge, to its refusal to charge and to its rulings as to evidence. The exceptions sufficiently appear from the opinion.</p>

Case, for causing the death of the plaintiff’s intestate.. Trial by jury and verdict for the defendant. The deceased, who was in his eighth year, was killed while walking on the defendant’s north bound track. He entered on its right of way from the easterly side, by a private way leading from Canal street over its tracks to the Amoskeag Mills. When he reached the north bound track he turned to the right and, while walking along that track, was killed.

Petition, for a new trial, filed after the decision reported ante, 354. Upon the death of Lizotte, his administratrix appeared. The petition was granted upon the single issue of liability, and the defendant excepted. Transferred by Peaslee, J., from the May term, 1917, of the superior court. The facts sufficiently appear from the opinion.

Trespass, q. c. /., being the same case reported ante, 160. After the former opinion was filed, the case was heard upon the assessment of damages. It appeared that the locus, consisting of about one acre, was a part of a farm owned by the plaintiff, that he expected to devote the whole to the uses of a summer school or camp for girls, and that the defendant’s defacement of the scenery and occupation of the premises as a saw-mill site interfered with his summer business.

Case, for negligently causing the death of the plaintiff’s intestate. Trial by jury. Transferred from the January term, 1915, of the superior court by Branch, J., on the plaintiff’s exception to an order of nonsuit.

Bill op Interpleader, to determine the right to a funeral benefit payable upon a certificate of membership issued to Frank L. Knowles. The by-laws provided that funeral benefits are payable only to legal dependents of a deceased member and that such dependent must be the wife, children, parents, sisters or brothers, grandparents, or grandchildren or other blood relative or other person who is dependent upon the member.

<p>Case, for personal injuries. Trial by jury and verdict for the plaintiff. The plaintiff who Was between six and seven years old went to the defendants’ mill to visit his father and, in leaving, slipped on some icy chips and fell into a carrier and sustained the injuries . complained of. Transferred by Pike, C. J., on the defendants’ exception to the denial of their motion for a directed verdict, from the May term, 1915, of the superior court. The facts are stated sufficiently in the opinion.</p>

<p>Case, for negligently causing the death of the plaintiff’s intestate, Charles A. Ayer, who was killed on February 12, 1913, by collision with a passenger train, while driving in an open carriage over a grade-crossing at Barrington station. Trial by jury resulting in a disagreement. Transferred from the February term,. 1914, of the superior court by Pike, C. J., on the defendants’ exceptions to the denial of their motions for a nonsuit and the direction of a verdict in their favor.</p>

<p>Case, for injuries caused by slipping upon icy steps of a car in which the plaintiff in the first action was a passenger. Trial by jury and verdicts for the plaintiffs. Transferred from the May term, 1915, of the superior court, by Branch, J., upon the defendant’s exception to the denial of motions for verdicts to be directed.</p>

Case, for negligently running upon the plaintiff’s intestate at a cross walk on Main street in Suncook village. At the close of the plaintiff’s evidence a nonsuit was ordered, subject to exception. Transferred from the October term, 1914, of the superior court by Kivel, J.

<p>Case, for negligence, to recover for the death of the plaintiff’s intestate, John E. Currier, a passenger upon the defendants’ road.</p> <p>At the close of the plaintiff’s evidence the defendants’ motions for a nonsuit and verdict were denied subject to exception. The case was thereupon submitted to a jury which failed to agree. The defendants’ bill of exceptions was then allowed by Chamberlin, J., at the September term, 1914, of the superior court.</p> <p>The plaintiff’s evidence tended to show that the deceased went to the defendants’ station in Boston, December 14, 1911, for-the purpose of taking the five- o’clock afternoon train for Nashua to visit a relative living on Chandler street in Nashua, which street is most conveniently reached from the Union station in that city. Currier was seen in the Boston station at the gate to the train shed shortly before five p. m. Train No. 117 leaves Boston at 5:01 p. m., stops only at Lowell until the railroad yard is reach in Nashua. The latter stop is made between two street crossings, Crown and Hollis streets. The train is then broken apart, the forward portion going northerly to Manchester but drawing into and stopping at the Nashua Union station. As soon as this portion of the train reaches the station, a south bound train, No. 68, draws out and passes the rear portion of 117 in the yard. An engine then backs down across the south bound track, couples onto the rear portion of 117 for the purpose of drawing it northwesterly to the Main street station in Nashua and to stations beyond, stopping however at what is called the Shelter, a part of the Nashua Union station. While the rear portion is standing in the yard, passengers have at times frequently alighted from the train at this point and workmen from the nearby shops have boarded the train to ride to the city. The usual course as to the management of the trains was pursued on this occasion but there was no evidence anyone got on or off the train at the stop in the yard or attempted to do so this evening. When the stop was made the brakeman left the train to protect the rear. This part consisted of a combination baggage and smoker and a passenger coach, and was left by the brakeman with the platform gates closed. At the time, it was dark and foggy. The rules required the brakemen immediately after leaving a station to announce the name of the next station. In some «ases in practice the word, stop, was used instead of station; the brakemen are also required to announce the names of stations just before reaching them and, in case a stop is made other than at a station and passengers prepare to alight, to notify them that it is not a station stop. There was no evidence of anything which was said in any part of the train after leaving Lowell; and the brakeman of the rear section testified he made no announcement. After the rear of the train had gone toward Nashua city the deceased was found lying upon the frog connecting the main north bound track with the track leading northwesterly to Nashua. The brakeman and another witness standing upon the rear platform of the train saw him lying upon the track just after the train passed over him. When reached, he appeared dazed, inquired what had happened, if he had been in a train wreck, and, later that evening in the hospital, said he came from Boston on the five o’clock train.</p>

Assumpsit, to recover for services rendered and expenses incurred by the plaintiffs, selectmen of the defendant, while serving as members of a committee for the erection of a bridge between the defendant town and the city of Nashua. Transferred as to the question of liability by Sawyer, J., from the September term, 1915, of the superior court, upon an agreement as to the facts and without a ruling.

Bill in Equity, to cancel on the ground of fraud a deed by which the plaintiff’s ward conveyed his farm to the defendant. The court made a decree according to the prayer of the bill. A bill of exceptions to this decree was allowed by Kivel, J., at the April term, 1915, of the superior court.

Bill in Equity, to restrain the defendant from obstructing a highway. Trial by court and decree for the plaintiff. Transferred from the January term, 1915, of the superior court by Branch, J.

<p>Assumpsit. Transferred by Sawyer, J., from the September term, 1915, of the superior court.</p>

<p>Case, for negligently constructing and maintaining a sewer. The two actions were tried together by jury and a verdict was rendered for the plaintiff in each case.</p> <p>At the close of the plaintiffs’ evidence the defendants’ motions for an order of nonsuit in each case were denied subject to their exception. Transferred from the May term, 1915, of the superior court, by Branch, J. The facts appear in the opinion.</p>

Replevin, for a car of box boards. Trial by jury and verdict for the plaintiffs. Transferred by Sawyer, J., from the September term, 1915, of the superior court, on the defendant Eaton’s exception to the denial of his motion for a directed verdict. The facts appear in the opinion.

Petition, by the owner of the grist-mill to modify the receiver’s instructions. The proceeding is a branch of the same litigation heretofore before the court and reported in 71 N. H. 117, 128; 72 N. II. 77, 211; 73 N. H. 310, 603, 611; 74 N. H. 225, 598; 75 N. IL. 416. Hearing by the court.

Case, for negligence. Trial by jury and verdict for the plaintiff. The liability of the defendants was admitted and the only issue submitted to the jury was that of damages. The defendants took exception to the reference by plaintiff’s counsel in argument to the grounds of negligence charged in the writ and to the number and ability of the counsel appearing for the defence. A bill of exceptions was allowed by Sawyer, J., at the September term, 1915, of the superior court.

Case, for negligence. Trial by jury and verdict for the defendants. The defendants were subject to, and had not accepted the provisions of, the employers’ liability act. The plaintiff was injured while in the employ of the defendants in their tannery, and while at work on certain vats. The jury took a view of the premises where the accident occurred.

Assumpsit, to recover the proceeds of a policy of insurance. Transferred without a ruling by Pike, C.J., from the April term, 1916, of the superior court upon facts agreed. ■ The New York Life Insurance Company, May 16, 1895, in consideration of an annual premium of $154.20, issued a policy upon the life of James B. Tennant, the defendant’s intestate, who died April 27, 1915. The amount then due upon the policy was $4,542 less a loan of $500 to the insured.

Assumpsit, on a special contract. Trial by the court and verdict for the defendants. The defendants contended that they were induced to sign the contract sued on by the plaintiffs’ false representation and were permitted to show, subject to exception, that the plaintiffs made the same representations to others and made them for the same purpose. Transferred from the Manchester municipal court by Perkins, J.

<p>Assumpsit. Transferred by Young, J., from the May term, 1916, of the superior court.</p>

Case, for negligence. Trial by jury and verdict for the plaintiff. The plaintiff on entering the defendants’ car as a passenger, at Portland, Maine, January 23, 1915, slipped and fell on the threshold of the door, and was injured. She claimed her fall was caused by an accumulation of snow or ice, which the defendants had negligently failed to remove. Other facts appear in the opinion.

<p>Case, for causing the death of the plaintiff’s intestate. Trial by jury and nonsuit ordered. At the time the accident happened,, the intestate, who was less than four years old, was being drawn, on or near the east line of Damon court toward Beaver street, in a go-cart by a boy of five, and just before they reached that street the boy turned so sharply to the right that the cart tipped over on one wheel and threw the intestate out. Later, his body was found in Beaver brook. There is no sidewalk on the east side of the court but those who have occasion to use that side of the street travel in a well defined path very near the east line of the court. Beaver brook is thirteen feet east of this path. The bank of the brook is a little more than two feet lower than the path, and the slope is regular. Transferred by Chamberlin, J., from the April term, 1916, of the superior court, on the plaintiff’s exception to the order of nonsuit.</p>

Trover, by a shipper to recover under the federal statutes for damage to the goods shipped. Facts agreed as follows: On January 20, 1915, the defendant accepted from the plaintiff at Exeter, N. H., for transportation, property worth $65, and agreed to deliver it in an undamaged condition to W. G. Hill, of Marquette, Michigan, issuing to the plaintiff a receipt or bill of lading therefor. The property was damaged in transit.

Action, for personal injuries under chapter 163, Laws 1911. Trial by jury and verdict for the plaintiff. The plaintiff was injured while operating a re-saw slab machine for the defendant. At the time of the accident he had been engaged in that work for six weeks.

Debt, upon a replevin bond. Trial by the court and verdict for ■ plaintiff.

Case, for personal injuries. Trial by jury. Transferred from!1 the January term, 1917, of the superior court by Branch, J., on the plaintiff’s exception to a nonsuit. The plaintiff’s evidence tended to prove that she scratched her finger on a wire protruding about one-half an inch from the side of the machine she operated. Blood poisoning resulted from this injury.

<p>Case, to recover for negligently causing the death of the plaintiff’s intestate, Henry Thompson, at Rockingham Junction, on December 12, 1914. Trial by jury. At the close of the plaintiff’s evidence, the defendants’ motion for a nonsuit was granted subject to the plaintiff’s exception. Transferred from the May term, 1917, of the superior court, by Sawyer, J.</p>

<p>Case, under c. 163, Laws 1911, to recover for injuries received in the course of the plaintiff’s employment by the defendant. Trial by jury and verdict for the plaintiff. The defendant moved for a verdict upon the grounds that the plaintiff, when injured, was not within the scope of his employment and was himself guilty of contributory negligence. The motion was denied subject to exception. Transferred from the January term, 1917, of the superior court by Branch, J.</p>

<p>The legislature can grant no pension to one whose right thereto is ascertainable upon any other ground than the performance of actual service to the public.</p> <p>Legislation in the same year, whether in one bill or several, granting, in the whole, pensions to the same person for more than one year is beyond the power of the legislature or of any political sub-division of the state and is void.</p>

<p>The legislature has constitutional power to authorize the appointment of women to the office of notary public.</p>