Volume 79 — New Hampshire Reports

Bill in Equity, to set aside a contract of partnership and praying for an accounting. Facts found by a master. The plaintiff was induced by the defendants’ fraudulent misrepresentations that the business was profitable and that they were not in debt, to purchase a third interest in it. He gave them in payment a note for $500, which they had given him to take up another note for the same amount. That note was given to evidence a loan of $300, and to take up a note for $200.

Assumpsit, for breach of contract to make certain repairs in consideration of the plaintiff’s execution of a lease. Trial by the court, and verdict for the defendant, to which the plaintiff excepted. The parties entered into an agreement by which the plaintiff was to take a lease of the defendant of certain premises at an agreed rental, which included compensation for certain repairs the defendant intended to make.

Assumpsit, to recover for the support of a pauper, who the plaintiff claimed had a settlement in Berlin. It appeared that the pauper owned-certain real estate in Berlin, and that a mortgage thereof had been executed by her and was in process of foreclosure in 1912. Conditional judgment was given in December, and in March, 1913, the mortgagee paid the taxes for 1912.

<p>Indictment for arson. Trial by jury and verdict of guilty. The indictment alleged that “John W. Dinagan, ... with force and arms, a certain dwelling-house, otherwise called a hotel situated in Chesterfield in said county of Cheshire, of. the property of one Mary J. Dinagan, wilfully, feloniously, arid maliciously, did set fire to, burn and consume. ” At the conclusion of the state’s evidence the respondent moved to dismiss the indictment on the ground of variance between the allegations in the indictment and the evidence' as offered by the state. This motion was denied and the Respondent excepted.</p> <p>During his argument the attorney-general made the following statement: “Will you permit that woman who has looked into your eyes and told her story in a way that wasn’t possible for an unlettered woman to tell unless it was actually so, — will you permit distinguished counsel to crucify such a witness in order that a villain and a criminal may go free? If so, gentlemen, the responsibility towards citizens of Cheshire county and towards your God is with you, and if on some other occasion some other villain, some other fire brand, shall rise up that shall out-Dinagan Dinagan, and some humble dwelling- house be lost, and some life go to its Maker because of the fire, the responsibility, gentlemen, will rest upon you. ”</p> <p>At this point, the respondent excepted. Whereupon the attorney-general continued: “1 call your attention to the situation, gentlemen, with all sincerity, and, gentlemen, when you measure up the facts in this case, consider the oath you have taken to find the true verdict between the state of New Hampshire and the prisoner at the bar.”</p> <p>To the above statements the respondent excepted. A bill of exceptions was allowed at the April term, 1917, of the superior court, by Kivel, C. J.</p>

Case, in the nature of deceit to recover damages for injuries received while employed as a companion of one Marie Bordet.

Assumpsit. The first action is assumpsit to recover the balance due on the purchase-price of an automobile. The second, is assumpsit to recover back the part of the purchase-price already paid. Trial by the court and verdict for the defendant in the first action, and for the plaintiff in the second for $210. The court found that Wooldridge sold Lavoie the car for $275, and that it was fairly worth that sum at that time.

<p>Assumpsit, to recover money paid by the plaintiff to the defendant, as state treasurer, for its share of the state tax for the year 1914 as claimed by the defendant. The plaintiff insisted thaUan error had been committed in making the assessment and that it was legally liable for a much smaller sum than the amount assessed against it, which it paid under protest.</p> <p>Upon the motion of the plaintiff the court dismissed the action as against the defendant individually. The defendant then moved that it be dismissed as against him as treasurer; this motion was denied, and the defendant excepted. Transferred from the April term, 1917, of the superior court by Chamberlin, C. J.</p>

Appeal, from the municipal court of Nashua in an action for the possession of premises under the landlord and tenant act. The court denied the defendant’s motion to dismiss the action and the defendant excepted. Transferred from the September term, 1917, of the superior court by Marble, J. The facts sufficiently appear from the opinion.

Action at Law, to recover for damage in a highway collision between motor-vehicles July 18, 1917. > The plaintiff is a resident of the county; the defendants are described in the writ as a corporation doing business at Boston, Massachusetts, and the trustee as a corporation doing business as a nonresident company under license in this state. The trustee »was summoned by service upon the insurance commissioner.

<p>The unsworn statement to the'jury of a material fact as within the personal knowledge of counsel vitiates the verdict, and such misconduct by one party will not excuse similar misconduct by the other.</p> <p>Case, to recover for injury received in a highway collision between a motor-cycle operated by the plaintiff and an automobile driven by the defendant. Trial by jury and verdict for the plaintiff.</p> <p>The defendant excepted to portions of the argument of counsel for the plaintiff, and after the verdict was rendered moved, in part upon the ground of improper argument, to set the same aside. The motion was denied subject to exception, the court stating that no finding of fact was made as to the fairness of the trial. Transferred by Marble, J., from the January term, 1918, of the superior court. The facts sufficiently appear from the opinion.</p>

<p>Action . at Law, against the town of Seabrook, the county of Rockingham and one Perkins, a special tax-collector of the defendant town, brought to recover certain prison charges and board from October 11, 1913, to December 18, 1914, of a delinquent tax-payer of Seabrook, who was committed to the county jail, of which the plaintiff was the jailer, by Perkins acting under a warrant given by the selectmen of the town for the collection of taxes. No bond for the prisoner’s board in jail was demanded by the plaintiff and no bond for that purpose was given. The board was furnished by the plaintiff, for which he has received no pay. The tax-payer upon taking the poor debtor’s oath was discharged. The county and the town moved for directed verdicts' in their favor. Perkins moved that the action be dismissed as to him. Without ruling on these motions, Allen, J., transferred the case from the October term, 1917, of the superior court.</p>

Índictment, for non-support of respondent’s illegitimate child. The question whether the prosecution can be sustained when no proceedings have been taken against the respondent under the bastardy act was transferred in advance of trial by Allen, J., without a ruling, from the January term, 1918, of the superior court.

Assumpsit. The defendants assigned all their assets including stock in trade, book accounts, tools and machinery to one O’Malley for the benefit of all their creditors. After he had accepted the trust and taken possession of the property, the plaintiffs attached it as the defendants’ property. The court permitted the assignee to intervene in this suit and ask for an order dissolving the attachment.

<p>An employee in a brewery may maintain an action against his employer upon Laws 1911, c. 163 for injuries received from a sliver of iron on the hoop of a barrel which the plaintiff was rolling, there being evidence that the defendant should have discovered and remedied the defect. (</p> <p>Though there is no direct testimony as to pain suffered from an injury, damages maybe awarded for such pain as is the usual accompaniment of such an injury.</p> <p>.Case, under Laws 1911, c. 163, to recover for injuries suffered by the plaintiff while employed in rolling barrels of ale across a cellar in the defendant’s brewery. Trial by jury and verdict for the plaintiff. The injury was caused by a sliver of iron which projected from a hoop on a barrel. The sliver appeared old and rusty, and the barrel was not roughly handled after it passed from the control of those whose business it was to inspect and repair it. The defendant excepted to the denial of its motion for a nonsuit and to certain instructions given to the jury. Transferred from the May term, 1917, of the superior court by Sawyer, J.</p>

Assumpsit, on the common counts with an account annexed for lumber and supplies. Robinson Bros, defaulted, and the case was submitted to the jury only against Powers. There was an attachment in the suit to secure a lien for the plaintiff on the property of Powers. Robinson Bros, took a contract to build a bungalow for Powers and the materials specified in the account annexed to the writ were furnished by the plaintiff and used in its construction.

<p>Petition, for advice by the executors of the will of Cora C. Furber. The will was dated August 26, 1916, and proved March 27, 1917. The material parts of the will are as follows:</p> <p>“Third: — I give, bequeath and devise to my brother, Edward E. Carlton of Springfield, Massachusetts, the sum of ten thousand (110,000) dollars: also the contents of my home in said Dover, . . . also a cottage, contents of same, and land situate in Alton, New Hampshire, and known as the Cora C. Furber property, to him, the said Edward E. Carlton, his heirs and assigns forever.</p> <p>Sixth: — I give to Alice S. Furber of Manchester, State of New Hampshire, niece of the late Dudley L. Furber, the sum of five thousand ($5,000) dollars together with an annuity policy which I hold in the Massachusetts Mutual Life Insurance Company of Springfield, Massachusetts, in the sum of five thousand ($5,000) dollars running fifteen years. . . .</p> <p>All the rest, residue and remainder of my property of any name and nature and wherever found, I give, bequeath and devise unto the legatees of this will ... in proportion to the amount already given to them, their heirs, and assigns forever.”</p> <p>The executors ask to be advised whether in making distribution of the residue of the estate, the inventory value of the contents of the home in Dover and of the land in Alton given to Edward E. Carlton by the third clause and the value of the annuity policy given to Alice S. Furber by the sixth clause of the will should be considered in ascertaining the shares of the several legatees in such residuum.</p> <p>The will contains gifts of specified sums in money to six persons beside those named in the above clauses.</p> <p>Transferred by Branch, J., from the February term, 1918, of the superior court, without a ruling.</p>

Petition, for leave to file a statement of claim for injuries under P. S., c. 76, ss. 8, 9. The court found that the plaintiff failed to file his claim within the statutory period by reason of his ignorance of the statutory requirement. The petition was granted. The defendants excepted to the denial of their motion that the petition be dismissed, and to the decree granting the petition. Transferred by Allen, J., from the September term, 1917, of the superior court.

Case, for burning the plaintiffs’ buildings. Trial by jury and verdict for the defendants. Transferred from the March term, 1917, of the superior court by Sawyer, J., on the plaintiffs’ exceptions to evidence and remarks of defendants’ counsel. The facts appear in the opinion.

<p>An exception to the admission of a photograph in evidence on the ground that it does not show the conditions existing at the time of an accident presents no question of law.</p> <p>A road supported by a vertical wall of stones about eleven inches high may constitute an embankment, within the meaning of the statute of highways, and whether such construction required a railing is a question for the jury.</p> <p>An argument of counsel commenting on the failure of the opposite party to offer experimental evidence, but stating no fact not in evidence, is not exceptionable.</p> <p>A verdict will not be set aside on the ground that counsel has stated a fact not in evidence, if the fact be immaterial and has no tendency to confuse or prejudice the jury.</p> <p>Case, for injuries caused by a defective highway. Trial by jury and verdict for the plaintiff. The defendant excepted to the admission of a photograph of the plaintiff’s vehicle on the ground that the picture did not show the condition of the vehicle at the time of the accident, to the denial of its motions for a nonsuit and a verdict and to statements of plaintiff’s counsel in argument. The facts appear from the opinion. Transferred by Allen, J., from the May term, 1917, of the superior court.</p>

<p>To an action upon the federal employers’ liability act, 35 IT. S. Stat. 05, c. 149, the negligence of a fellow-servant is not a defence.</p> <p>A verdict will not be set aside because evidence relevant to the issue upon which it is offered would be incompetent, if used for a different purpose.</p> <p>Two Actions of Case, for negligence. The plaintiffs were employees of the railroad and received personal injuries in the same accident. The cases were tried together before a jury and resulted in verdicts for the plaintiffs. The defendant’s motions for a non-suit and a directed verdict, were denied subject to exceptions. Transferred by Marble, J., from the September term, 1917, of the superior court. The evidence-sufficiently appears from the opinion.</p>

Bill in Equity. Hearing by the court. Decrees for the plaintiff and for the defendant Dubray. The plaintiff’s intestate, one of Dubray’s employees, was killed October 2, 1915, by the fall of a hoist or elevator on which he was riding. His administratrix recovered a judgment against Dubray which she is seeking to enforce against the defendant company in this proceeding.

<p>A mill-operator who has not accepted the provisions of Laws 1911, c. 163 is liable for an injury to an employee caused by the negligence of his fellow-servant; and in such case an employee who performs his work in a method authorized by the foreman does not assume the risk of his omission to require the work to be done either with more men or by some appliance.</p> <p>In such ease, the questions whether a foreman who saw and participated in the plaintiff’s method of doing the work thereby endorsed the method, and whether the foreman, by reason of his authority and superior knowledge, should have forbidden the use of such method, are for the jury.</p> <p>Case, for negligence, brought under Laws 1911, c. 163. Trial by jury and verdict for the plaintiff. Transferred from the September term, 1917, of the superior court by Marble, J., upon the defendant’s exceptions to the denial of its motion for a directed verdict and to a portion of the charge to the jury. The facts are sufficiently stated in the opinion.</p>

Case, for negligence brought under the employers’ liability and workmen’s compensation act (Laws 1911, c. 163), to recover damages for injuries received while splitting blocks with a saw in the defendants’ mill. The defendants had not accepted the provisions of the act. Trial by jury and verdict for the plaintiff. The jury took a view of the sawing-machine on which the plaintiff was injured.

■ Probate Appeal. The probate court allowed the will of Ella A. Higginson on March 3, 1917, and the defendant appealed from that decree on May 3 of that year. The plaintiffs moved to dismiss because the appeal was not claimed within sixty days after the decree appealed from was made. Transferred by Sawyer, J., without a ruling, from the May term, 1918, of the superior court.

Case, for negligence. Trial by jury and verdict for the defendant. The plaintiff went to the defendant’s garage to have repairs made on an automobile, and, while searching for a workman in the darkness, stepped between two cars, which were being repaired and were standing over an open pit, fell into the pit and was injured.

Petition, for the construction of the following clause of the will of Sophia T. Gove: “The remainder of my money ... I give to Jeremiah Hilliard or his heirs and to the heirs of Ellen I. Brown to be divided equally among them.” Jeremiah and Ellen were cousins of the testatrix. Ellen died some eight months before the will was made, leaving five children as her heirs. Jeremiah died after the will was made leaving two children as his heirs.

<p>In a bill to enjoin a nuisance, a valid city ordinance in the nature of a police regulation is admissible to «how the unreasonableness of the defendant’s acts.</p> <p>A city ordinance requiring.one proposing to erect a steam-mill, or garage, &c., to petition the city council, setting forth the location, materials, dimensions, &c., of the proposed building, and, before erecting the same, to obtain a license therefor, is valid for the purpose of authorizing reasonable regulation, and is not an arbitrary exercise of legislative power erroneously assumed.</p> <p>Upon a bill to enjoin a nuisance, the question what is a reasonable use of the defendant’s land is a question of fact, to be determined in the light of all the circumstances, including the use his neighbor makes of his land and the damages to each from an -unrestricted user by the other; the test is not whether the injury to the plaintiff’s property is due to the defendant’s negligence in view of what he knows or reasonably ought to know of the situation.</p>

Case, to recover for the alleged unlawful interference by the defendant with the plaintiff’s reélection as a school superintendent. At the close of the plaintiff’s evidence, Sawyer, J., granted the defendant’s motion for a nonsuit, and transferred the case, upon the plaintiff’s exception, from the October term, 1916, of the superior court. The facts appear in the opinion.

Bill in Equity, to enforce the specific performance of a contract of “dowery” made in anticipation of the marriage of the plaintiff to the defendant’s daughter. The facts were found by a master. Upon consideration of the master’s report the bill was dismissed, and the plaintiff excepted. Exceptions were also taken by the plaintiff to the admission of evidence. Transferred from the September term, 1917, of the superior court by Marble, J. The facts áre stated in the opinion.

<p>A town is required to maintain its highways in a condition .reasonably suitable for the ordinary travel thereon and is not liable for injuries from an unrailed embankment, unless it is one which reasonably ought to have been railed.</p> <p>One riding in an automobile is as much a traveler upon the highway within the meaning of the statute of highways as he who walks or rides in a horse-drawn vehicle.</p> <p>Before the court can be required to give particular instructions there must be evidence, relevant and pertinent, on which to found them.</p> <p>The court is not required to use the specific language of a request for instructions to the jury.</p>

Action, to enforce a lien under P. S., c. 141. In pursuance of a contract for electrical equipment between the plaintiff and the defendant Mayer, the plaintiff between August 15,1915, and January 27 1916, furnished the labor and material on Mayer’s theater building, for which the lien is claimed. The following facts were reported by a referee: Mayer bought the theater property some time previous to March 9, 1915.

Case, to recover on the ground of misrepresentations a portion of the consideration paid for a farm. The defendant testified that immediately after receiving a notice from the plaintiff rescinding the contract, she had an attorney write a letter for her to the plaintiff which she signed and handed to him. The plaintiff denied receiving it. The defendant introduced in evidence a writing which she alleged was a copy of this letter.

Appeal, from a decree of the probate court admitting to probate the will of Charles F. Osgood. The issues raised were tried by jury. Upon the plaintiff’s motion for a verdict at the close of the evidence, the due execution of the will and the competency of the testator were admitted by the appellant. Subject to the plaintiff’s exception, her motion was denied and the issue, whether the will was procured by her undue influence or that of her husband, was submitted to the jury.

Case, for personal injuries. Transferred from the October term, 1917, of the superior court by Branch, J., on the plaintiff’s exception to a nonsuit. The plaintiff who was an employee of the defendants was struck in the eye by a metal chip while cutting rivets on top of an oil tank with a hand hammer and chisel. The facts are sufficiently stated in the opinion.

<p>Mere passive acquiescence by an owner in certain uses of his land by others does not constitute a license or invitation; hence merely permitting children to pick up paper upon premises did not constitute an invitation or license to them or others to do so.</p> <p>An invitation to come upon premises for one purpose will not invite an entry for all purposes.</p> <p>Action, for negligence resulting in the death of the plaintiff’s intestate, a child of seven years. At the close of the plaintiff’s evidence a nonsuit was ordered and the plaintiff excepted. Transferred by Marble, J., from the September term, 1917, of the superior court. The facts sufficiently .appear from the opinion.</p>

<p>Under Laws 1901, c. 96, s. 1; Laws 1905, c. 19, a school district not maintaining the preparatory course therein specified is liable for tuition in the grammar grades furnished by another district as part of a preparatory course maintained in conformity to those statutes.</p> <p>Laws 1901, c. 96, s. 1, requiring notice to a school board as to what high school or academy a child will attend, does not require a notice if the board has actual knowledge thereof; nor is notice necessary in any case that a claim for tuition will be made.</p> <p>The word “town” as used in Laws 1901, c. 96, s. 1, means the town school district.</p> <p>Assumpsit, under Laws 1901, c. 96, for tuition paid to Wilton. The case was tried by a referee who found the facts. The plaintiff’s son attended the junior high school in Wilton, and the plaintiff paid his tuition. It appeared that in the Lyndeborough schools the scholars could take many, but not all the studies taken in the Wilton junior high school, and the scholars going from the Lyndeborough schools to Wilton frequently had to take the grades over. The Wilton school was approved by the state superintendent, and the Lyndeborough school was not so approved. It was found that Lyndeborough did not maintain a school of a grade corresponding to that attended by the plaintiff’s son.</p> <p>The plaintiff did not notify the school board what school his child had elected to attend, but the board knew the fact. The question whether the plaintiff could recover was not passed upon by the referee, and at the request of the parties the case was transferred without ruling from the September term, 1917, of the superior court by Marble, J.</p>

Assumpsit, for breach of promise of marriage. Trial by jury and verdict for the plaintiff. The plaintiff’s evidence tended to prove a contract to marry, made in 1898, and that shortly thereafter the parties began to live as husband and wife and continued so to live until 1917.

Bill in Equity. The plaintiffs are legatees under, and the defendants the executors of Mary D. Aikens’ will. The will in so far as it is material reads as follows: “Twelfth: I bequeath to my sister Margaret ,D. D. White (in .addition to what I give her in section second of this will) twenty thousand dollars, the income of which is to be subject proportionally with the residue and rest of my estate to the annuity (mentioned herein and hereafter) of my brother Arthur M. Dodge.

Libel for Divorce. As an answer, the libelee filed a petition seeking to have the alleged marriage annulled. At the trial it appeared that a marriage ceremony between the parties was performed November 17, 1914. The libelant had previously been married to one Sayles. At the October term, 1914, of the superior court she filed a petition for divorce from Sayles.

Assumpsit, for hospital board and treatment. The defendant was injured July 17, 1916, while in the employ of Fellows & Son, of whom he subsequently recovered damages for the injury. At the time of his injury Turcotte was taken to a physician'by Fellows & Son, from whose office the physician by telephone obtained permission from them to remove him to the hospital. Turcotte understood the hospital was to be paid by Fellows & Son.

Case, for negligence, under Laws 1911, c. 163. Trial by jury and verdict for the plaintiff. The plaintiff and a fellow-servant, Matteau, were laying a mill floor, and having occasion to remove a spike from a plank, laid the plank across some floor timbers and the plaintiff stood upon one end to hold the plank while Matteau struck a blow to remove the spike from the opposite end. The blow was so struck as to dislodge the plank and cause the plaintiff to fall.

Action, for damages to the plaintiff’s land caused by the defendant’s unreasonably flooding the same by means of a boom used for floating logs in the Androscoggin river. Trial by jury and verdict for the defendant. It was admitted by the defendant that the plaintiff’s land was overflowed at the time alleged, that damage resulted, and that the defendant had logs in the river which formed a jam at one of the piers in the river opposite the plaintiff’s premises.

<p>If the performance of a contract is prevented directly or indirectly by the act of the promisee, its non-performance will be excused.</p> <p>If one furnish to another for hire an article for a certain purpose, there is an implied warranty that it shall be reasonably fit to use for that purpose.</p> <p>Plea op Law, to recover seven hundred and fifty dollars for a moving picture film. Trial by jury and verdict for the defendant. The plaintiffs made a contract with the defendant to furnish him moving picture films. The fourth clause of the contract, the only part material to this action, was as follows: “It is understood that no title or ownership to any of the films, reels, or personal property of any description shall pass under this agreement, but shall remain unaffected thereby, and that the exhibitor shall receive hereunder only the rights of exhibiting the same in the theatre or place, and on the day or days specified in the application and not otherwise, and shall have no other rights therein whatever; and all property furnished hereunder shall be returned in the same condition as received by the exhibitor, who shall be liable for any and all damage to any property referred to, except for necessary wear. In the event that the films are injured in any way the exhibitor agrees to pay promptly fifteen cents for each and every linear foot of said motion picture film which may be required to restore production to as good condition as before.”.</p> <p>A film was shipped by the plaintiffs and received by the defendant under this contract. While the film was being used by the defendant in his theater, it caught fire and was totally destroyed. At the close of the plaintiffs’ evidence, and again at the close of all the evidence, the plaintiffs moved for a directed verdict for seven hundred and fifty dollars. The motions were denied and the plaintiffs excepted. There was evidence tending to establish that the. film when shipped by the plaintiffs was not in a reasonably suitable condition for the defendant’s use and that such condition contributed to its destruction.</p> <p>Subject to exception, the defendant introduced a bill which the plaintiffs had rendered the defendant for four hundred dollars, for the film that was destroyed. An exception was taken to the charge of the court relating to damages.</p>

<p>Case transferred from the public service commission under Laws 1917, c. 205. The Fryeburg Water Company, a public utility organized under the laws of Maine, furnishes water to the public both in Maine and in this state. It has accumulated from its earnings a surplus of $8,000 which it has used in improving its plant in both states. Under the laws of Maine it has been authorized to issue a stock dividend of $8,000 to take up the surplus so invested. This proceeding is a petition to the public service commission for its approval of so much of the stock dividend as is represented by investment in the company’s property in this state. The commission submits the following questions for determination: (1) whether its approval is necessary to .validate the stock dividend referred to, and (2) whether, if such approval is necessary, it has authority to approve a stock dividend.</p>

<p>Assumpsit, for services rendered to the defendant’s testate. Trial by jury and verdict for the plaintiff. The defendant excepted to the following statement made by plaintiff’s attorney in argument:</p> <p>“Brother Bartlett’s statement of the law was all right as far as it goes, but he didn’t tell you that the testimony of Mr. Butler could have been introduced here to you so that you could have got the whole story at first hand provided the administrator or the executor had so elected to testify. In this case the executor refuses to testify, consequently the plaintiff cannot put on Mr. Butler [the plaintiff] to tell his story. The rule works both ways, and in this case I submit to you that you would have a better understanding of all the facts and circumstances if Mr. Butler could talk to you as man to man and tell you his story exactly as it occurred. But, unfortunately, we have to depend upon outside evidence.” The jury was instructed as stated in the opinion. Transferred from the May term, 1918, of the superior court by Allen, J.</p>

<p>Assumpsit, to recover money drawn by the defendant from a savings bank upon the testator’s written order.</p> <p>Trial by the court, which found the facte as follows:</p> <p>The plaintiff is executor of the last will of Edgar P.‘ Stockbridge who died November 21, 1916. Sunday, November 19, 1916, Stock-bridge gave the defendant his bank-book upon the Farmers’ Savings Bank of Pittsfield with an order written that day and signed by him in the presence of one J. C. Pickering directing the bank to pay the amount due on the book to the bearer. Monday, November 20, one Greenshield, an employee of the defendant, by her direction presented the book and order to the bank, and collected and paid over to her the proceeds, $699.70. The testator, on November 19, told the defendant to get the money on deposit in the bank and from it to pay his taxes, a bill due Greenshield for services, the testator’s burial and funeral expenses, make Mr. Pickering, the witness, a present and to divide the balance between herself and Greenshield. The defendant paid the taxes and bill for services and $57.49 to the executor toward the funeral and burial expenses which amounted to $101.</p> <p>The act of drawing the order on Sunday was not to the disturbance of others and might reasonably have been thought by Stockbridge a work of necessity in view of his physical condition. Stockbridge was then confined to his bed by the illness from which he died two days later.</p> <p>In anticipation of his early death he intended to make the defendant a gift of the money without limitation except the charges above mentioned. He was of sound mind. The gift was reasonable and voluntary. The court thereupon found as matter of fact and ruled as matter of law that the gift of the $699.70 was not a donatio causa mortis, there being no reservation whereby the gift was to fail if the donor recovered from his illness, but was a gift inter vivos, the title and possession being absolutely parted with by the donor at the time; and that the gift was charged with the payment of certain indebtedness, a gift to Mr. Pickering, and the funeral and burial charges, and found a verdict for the plaintiff for the unpaid amount of the funeral and burial expense, $43.51. The plaintiff excepted to the finding and ruling that the gift was a gift inter vivos.</p> <p>Prior to the bringing of the suit, counsel for the executor made a demand upon the defendant for the return of the money. Subsequently she called at his office and voluntarily informed him fully as to the transaction and conversation between herself and the deceased. Her statement was reduced to writing and signed by her, a copy being given her. Counsel took the statement to aid in the preparation of the case and the court being clearly of the opinion that injustice would be done, if the defendant did not testify, admitted her testimony subject to exception by the plaintiff. Transferred by Sawyer, J., from the October term, 1917, of the superior court.</p>

Bill in Equity, for the abatement of a public nuisance, consisting of a bridge which connects Governor’s island with the mainland and obstructs a navigable strait in lake Winnepesaukee. The case was heard by a master whos'e findings were confirmed by Pike, J., who transferred the case to this court, upon the state’s exceptions, from the March term, 1913, of the superior court.

Case, for slander. Trial by jury and verdict for the plaintiff. After the verdict, the defendant moved (1) to dismiss the suit because it was begun by trustee-process, and (2) to arrest the judgment because the declaration does not state a cause of action. Transferred from the January term, 1918, of the superior court by Marble, J., on the defendant’s exception to the denial of these motions, and (3) to remarks of counsel.

Action, for negligence causing personal injury. Trial by jury and verdict for defendant. Since the trial the plaintiff has died. The action is now prosecuted by his administrator. At the time of his injury, July 13, 1917, he was about fourteen years old and was employed by the defendant to work at its summer hotel at Hampton Beach. In connection with the hotel the defendant conducted some amusement enterprises, including bowling alleys and a shooting gallery.

Action at Law, the declaration containing two counts, (1) for debt on a judgment, and, (2) for money paid at the defendant’s request. To the first count the defendant pleaded P. S., c. 217, s. 4, and to the second count P. S., c. 217, s. 3. The judgment was rendered against the defendant on February 2, 1894, in Greece, on a claim for money borrowed by the defendant in 1890.

Petition, for an injunction. Hearing by Kind, C. J., who found that the defendant injured his hand on October 27, 1915, and employed the plaintiffs to treat the wound. They burned his hand on November 5, while examining the wound with an x-ray machine. The effect of the burn was noticeable by November 16, and the full extent of the injury was apparent a few days later.

Bill in Equity, to restrain Huckins, sheriff, and the other defendants, execution creditors of the heirs of Benjamin F. Jewell, from completing a levy on real estate in Holderness and to remove a cloud from the plaintiff’s title. March 24,1899, Benjamin F. Jewell, who then owned the premises, mortgaged them to the City Savings bank, his wife Annie A. Jewell joining in the mortgage. January 22, 1903, Benjamin F. Jewell died.

About noon on the 23d day of March, 1917, the body of the plaintiff’s intestate, Benjamin Ingerson, was observed lying in the snow on the right of way of the defendant railroad about 36 feet from the nearest rail at a point some seven miles west of Groveton and a short distance south of the crossing of the tracks of the Grand Trunk and Maine Central Railroads.

Coos, Case, for personal injuries. Trial by jury and verdict for the plaintiff. Transferred by Sawyer, J., from the April term, 1918, of the superior court on the defendant’s exception to the denial of its motion for a directed verdict. The facts sufficiently appear from the opinion.

Case, for negligence. Trial by jury and verdict for the plaintiff. The plaintiff was riding on a motorcycle over a bridge on which the defendant’s trackmen were at work using an iron bar to test the planks. In passing along, his machine ran over the bar which was, being used and he was thrown off and injured. The bar was broken. One issue related to the speed at which the plaintiff was going.

Action, for personal injuries. Trial by jury and verdict for the plaintiff. The defendant’s motions for a nonsuit and a directed verdict were denied subject to exception. The facts appear in the opinion. Transferred by Allen, J., from the January term, 1918, of the superior court.

Case, for causing the death of plaintiff’s intestate. Transferred by Allen, J., from the October term, 1917, of the superior court on the plaintiff’s exception to a nonsuit. The intestate was in the Newburyport station when the Portsmouth train arrived.

Case, under the employers’ liability statute. Trial by jury and verdict for the plaintiff. The plaintiff by direction of the defendants began work upon a stone in the defendants’ quarry; the stone not being properly supported turned when he got upon it and he was injured. The defendants duly excepted to the denial of their motion for a directed verdict, made at the close of the evidence.

Case, under the federal employers’ liability act for negligently causing the death of plaintiff’s intestate, Doud Muslin. Muslin was employed in shoveling over coal on the tender of a south bound train in the Concord station. Getting off that train after it started, he was killed by an incoming train on an adjoining track. Trial by jury and verdict for the plaintiff.

Bill of Exceptions. The respondent was indicted for manslaughter in the first degree (P. S., c. 278, s. 7) for causing, while operating a motor vehicle in violation of s. 19, c. 133, Laws 1911, the death of Mrs. Lund. Trial by jury and verdict of guilty.

Case, under the federal employers’ liability act, to recover for injuries received by the plaintiff on January 21, 1914. Trial by jury and verdict for the plaintiff. At the time of the accident, the defendant was a common carrier by railroad and engaged in commerce between Vermont, New Hampshire and Massachusetts, also in commerce within New Hampshire, and the plaintiff was in its employ as a locomotive engineer.

Action at Law, for negligence. Trial by jury and verdict for the defendants. The plaintiff alleged and testified to an injury September 30, 1913, while he,,was in the defendants’ employ. In December, 1914, he consulted a physician who was called as a witness by him and testified that his treatment of the plaintiff was based upon his injury and the history given by him. The question, “What history did he give you?” was excluded subject to exception.

Petition, for a decree annulling the marriage of the parties.

Case, for negligence. Trial by jury and verdict for the plaintiffs. The defendant insured the plaintiffs against liability for accidents, and when one of their horses kicked Blais, it assumed the defence of his claim.

Bill in Equity, to compel the defendant to repair a dam to hold back water for the plaintiffs’ mill. The plaintiffs and the defendant own mills on the same stream. The dam turns the water from the. stream into a canal which carries it to the defendant’s mill and from there to the plaintiffs’ mill. Both mills were owned by the same persons in 1891, who then, conveyed the lower mill to the plaintiffs, and by a later conveyance the upper mill passed to the defendant.

Bill in Equity, for specific performance of a clause in a lease of .real estate by the defendant’s ancestor in title to the plaintiff, dated January 30, 1903, for the term of fifteen years from date.

Assumpsit, to recover an alleged agreed balance due for services and expenses incurred in behalf of the deceased from July 1,1906, to June 28, 1912. Trial by jury and verdict for the defendant. At the close of the evidence the plaintiff moved the court to direct a verdict in her favor for the amount named in the specification. The motion was denied subject to exception. Transferred by Branch, J., from the September term, 1917, of the superior court.

<p>Petition, to determine the result of the election for the office of county commissioner.</p> <p>The petition was referred to a master who reported that each of the contestants received 8,149 votes and stated the facts as to eight ballots the count of which was in dispute.</p> <p>Each party claimed election upon the master’s report and moved for a certificate of election. Transferred by Branch, J., without a ruling, from the January term, 1919, of the superior court. The master’s report and the disputed ballots were made a part of the case.' The facts appear in the opinion. ■</p>

Case. The plaintiff claims the death of her intestate was caused by the defendant’s negligence. The suit was not brought for more than two years after his death. The plaintiff seeks to recover under P. S., c. 191, alleging the defendant’s fraudulent concealment and active misrepresentation of the facts as an avoidance of the limitation of the action to two years.

Transferred upon the defendants’ demurrers by Marble, J., without a ruling from the April term, 1918, of the superior court.

Appeal, from a conviction for keeping intoxicating liquor for sale. Trial by jury and verdict of guilty. A bill of exceptions was allowed by Kivel, C. J., at the October term, 1917, of the superior court. The exceptions are stated in the opinion.

Case, for negligence resulting in personal injury to the plaintiff. Verdict for the plaintiff. Transferred by Branch, J., from the May term, 1918, of the superior court. The declaration contained several counts, one of which alleged that the defendant was negligent in its maintenance of an electric bell system at the highway crossing where the plaintiff was injured while attempting to pass over the crossing in an automobile which collided with a south-bound train.

Before the executrix elected to testify, and subject to exception, the appellants were permitted to testify as stated in the opinion. After such election they were permitted to testify generally. Transferred from the January term, 1918, of the superior court by Marble, J.

Case, to recover for injury while in the defendants’ employ. The plaintiff who had had experience in an automobile factory was employed by the defendants in March, 1916, to repair and operate a motor truck owned by them. With one Mooers he overhauled the truck and operated it during the summer of 1916, driving the truck by himself and making or ordering such repairs as were necessary. In the winter 1916-1917 he was employed repairing machines used in the defendants’ business.

Bill in Equity, alleging that the plaintiffs’ testator, who was one of the executors of the will of his wife, Elizabeth H. Jaques, filed and settled an account of said trust in the probate court in 1906, and another in 1916; that the 1916 account was reopened in 1917, after his death, and a modified decree was made, from which the plaintiffs appealed and which appeal is now pending.

Bill in Equity. The plaintiffs are the heirs at law of Lewis W. Tebbetts. The defendants are the residuary legatee named in the will, the executor of the will and others. The executor asks the advice of the court as to who is entitled to the property passing under the residuary clause of the will.

Case, for negligently causing the death of the plaintiff’s intestate William Wallace. Trial by jury and verdict for the plaintiff. The intestate was injured by being thrown from an automobile in which he was riding and which was driven by one Freeman, who was at the time engaged in his employment for the defendant as the general sales agent in this state for the defendant’s motor sales agency.

Bill in Equity, for an injunction and an accounting. The plaintiff claims an interest in certain real estate in Sandwich, by an attachment April 17, 1916, in a suit brought by him against Walter E. Blanchard. The premises were conveyed to the defendants by Flora L. Blanchard February 13, 1917. Flora Blanchard’s title is derived from the will of her brother, Howard W. Blanchard. Howard died October 1,' 1914, after five years’ illness.

Bill in Equity, to rescind a contract of sale and for an accounting. Mary L. Cotton is the sister of the defendant and the widow of John E. Cotton, who died June 18, 1912, and who had been a partner of the defendant in the manufacture and sale of refrigerators in Nashua. The other plaintiff, Lillian R. Fletcher, is the adopted daughter of Mary and the residuary legatee under Mr. Cotton’s will.

Case, for negligence to recover damages for personal injuries. Trial by jury and verdict for the plaintiff. The plaintiff’s evidence tended to prove that she scratched her finger on a wire protruding about half an inch from the side of the machine she was operating; that general infection of her body resulted from the accident; and that she has experienced very serious ailments by reason thereof.

<p>Evidence that the engineer of a locomotive approaching a grade-crossing at the rate of twenty-five miles an hour, and more than 800 feet therefrom failed to stop his engine when signaled, warranted a finding that by due care he could have stopped before reaching the crossing.</p> <p>Whether a statement made by an engineer directly after a grade-crossing collision was admissible as part of the res gestae presents no question of law.</p> <p>The assertion by counsel, “It don’t take thirty rods for a man to stop a locomotive,” is a statement not of matter of common knowledge but of a fact to be proved, and if material and unsupported by evidence,, is ground for setting aside a verdict, in the absence of a retraction or a finding by the court that the jury were not affected thereby.</p> <p>Two Actions oe Case, for negligence, the first to recover damages to a motor truck caused by a collision with one of the defendants’ engines on the highway crossing at North Charlestown, the second to recover for personal injuries thereby sustained by the driver of the truck. The cases were tried together by jury, a view was taken and verdicts were rendered for the plaintiffs. At the close of the plaintiffs’ evidence the defendants moved for nonsuits, and .at the conclusion of the evidence thfey made a motidn for directed verdicts. The motions were denied subject to the defendants’ exceptions. Excep-' tions were also taken by the defendants to the admission of evidence, and to the argument of counsel.</p>

Trespass, to the person. Trial by jury and verdict for the defendants. The defendant Stone is a detective and was employed by the defendant company to protect its property at Groveton during a strike, and Moore is the company’s superintendent. The act complained of as an assault was Stone's discharging a revolver, the bullet striking the plaintiff. An encounter between the plaintiff and one Mortimer, a guard employed by the company, was in progress.

<p>Jamaica ginger containing 92 per cent of alcohol is intoxicating liquor within the provision of Laws 1917, c. 147, s. 60, and the keeping of it for sale for beverage use is punishable under s. 19 of that act.</p> <p>Intoxicating liquor taken on a search warrant is admissible as evidence on the trial of an indictment for illegally keeping such liquor for sale, though the return of the officer making such seizure is not signed.</p> <p>An order permitting the return to be signed by such officer, after a motion to quash the complaint, is not exceptionable.</p>

Petition, for partition. Trial by the court. Thomas W. Peavey died in November, 1914, and the following December the defendant qualified as executrix of his will. The plaintiffs sued her in that capacity in 1916 to recover for injuries caused by the deceased’s negligence, and recovered judgment March 31, 1917, and levied on the deceased’s real estate in part satisfaction of their judgment.

<p>If a power of disposal is conferred by will upon a tenant for life tlio question whether he has exercised the power is one of fact.</p> <p>His exercise of a right to subscribe to additional shares allotted to stock so bequeathed to him may be evidence of a disposal, if the giving of the right was a distribution of the capital of the estate.</p> <p>Where stock is bequeathed for life, the question whether the right to subscribe to allotted stock representing profits belongs to the life tenant or is such capital depends upon whether the right represents profits accrued during the life of the testator or subsequently.</p> <p>Personal property bequeathed to one for life with a power of disposal reverts to the estate of the testator, if the legatee die without exercising the power.</p> <p>It is the duty of the executor or administrator of a deceased executor or trustee to file an account of his administration, when required.</p> <p>The collection of rents is no part of the duty of the administrator of a solvent .estate and he cannot be required to account for them as part of his administration; his submission of such items in his account does not estop him from objecting to a decree thereon.</p> <p>A life tenant with power of disposal who has stock transferred to’ his own name for the purpose of his life tenancy and not as a disposal is a trustee thereof. The right of a residuary legatee attaches only to the residue of the estate after Lthe payment of debts, expenses and special legacies.</p>

■ Bill in Equity, to foreclose a mortgage, brought August 8, 1917. The mortgage is dated February 3, 190.6, and was given by Celina Duelos to Samuel A. Rouleau, who assigned it to George W. Platts, who on December 17, 1906, assigned it to F. A. Platts, agent for the plaintiff. The latter assignment was not recorded. George W. Platts is the father of the plaintiff and of F. A. Platts.

Assumpsit,, for tolls. Trial by a referee, who found a verdict for the plaintiff and reported the facts. Transferred without ruling from the November term, 1918, of the superior court by Marble, J. The plaintiff was incorporated by the New Hampshire legislature-in 1795 to construct a toll bridge between Cornish, N. H. and Windsor,.

Action, for personal injuries under Laws 1911, c. 163. After the overruling of the defendant’s exceptions, (see 78 N. II. 610) the plaintiff’s motion for judgment was denied by the superior court subject to exception.

<p>To bind a principal by an act which his agent is not expressly authorized to do, the principal must have so conducted his business as to give persons dealing with the agent the right to believe that the act in question was authorized, or the act must be one which agents in the same line of business are accustomed to do.</p>

Action, upon a policy of insurance dated February 5, 1914, upon the life of one Frank Langlois who died January 23, 1917. The defence was that the insured had not complied with the by-law requiring him to pay $2.66 each month and that he was under suspension for non-payment of the assessment or dues for December, 1916. Upon the defendants’ motion for a nonsuit, the plaintiff claimed there was evidence of a waiver of the by-law requiring monthly payments.

Assumpsit, upon four promissory notes for $225 each, dated July 2, 1917, signed by the defendant, payable to the order of the Partin Manufacturing Company three, four, five and six months from date, and indorsed to the plaintiff before maturity. The company conducted a sales promotion business, furnishing prizes to be offered by retailers. The notes were given in payment for a contraed, of this nature.

<p>A conveyance by a husband to his wife and minor child, the instrument being sealed and delivered, of all his “right, title and estate ... in and to any of the securities and property now held in trust” by certain trustees for his benefit, requires no consideration and is valid as an executed gift.</p> <p>A provision in such conveyance that the property is to be held by the grantees in equal shares "on and after the expiration of all life interests in said property” fixes the termination of the life estates as the time when the title vests in the beneficiaries.</p>

Case, for negligence. The declaration alleged that the plaintiff’s intestate was injured through the negligence of the defendant in failing to properly maintain a certain highway within its limits upon which the deceased was traveling, in consequence of which negligence he was thrown over an embankment. It was agreed that the highway where the accident occurred is a part of what is known as the “West Side road” as established by Laws 1909, c. 155, s. 15.

Case, under the federal employers’ liability act, to recover for injuries sustained by John Crugley. • Trial by jury and verdict for the defendant. The suit was brought by Crugley in his lifetime and prosecuted by his administratrix after his death. He was employed by the defendant as a trackman and on the night of June 18, 1917, he, with others, was called to repair a washout at North Yarmouth, Maine.

Petition, to the public service commission by a public utility for permission to acquire certain lands, flowage rights, and easements in the towns of Durham and Lee, under Laws 1919, c. 162, s. 1. The defendants moved that the petition be dismissed upon the ground that the statute above referred to is unconstitutional. Transferred by the public service commission.

<p>Petitions, for the assessment .of damages under the flowage acts, filed prior to actual flowage under the provisions of Laws 1911, c. 114. The petitions were heard by a committee, whose report was accepted and judgment rendered thereon, with 50 per cent added. At the hearing before the committee the petitioner stipulated that it would not flow before July 1, 1919, and that fact was considered in making up the award.</p> <p>The petitioner moved for a stay of execution until it flowed the land, and the defendants moved for interest from the date of the petitions. The disposition of these motions was transferred, without a ruling, from the February term, 1919, of the superior court, by Marble, J.</p>

<p>In an action upon the federal employers’ liability act, the plaintiff has the burden of establishing the defendant’s negligence and his own resulting injury; the evidence must disclose a visible connection between the injury and the negligence charged, as a reasonable and probable result therefrom.</p> <p>A fireman, who claims that while standing upon the apron of an engine he was thrown therefrom by the lateral motion of the apron when the engine passed a curve, cannot recover in the absence of evidence that he was thrown as the engine was entering upon or leaving a curve.</p>

<p>Whether the danger incident to heavily striking with a sledge a wooden wedge used in felling a tree was assumed by a youthful and inexperienced servant and whether the master should have warned him of the danger were properly submitted to the jury.</p> <p>The testimony of a witness that he would have told a servant so using such a wedge “to take his axe and hit it light” is admissible as an expression of opinion.</p> <p>The usual test to determine the admissibility of opinion evidence is not whether the matter is for the jury or is open to common observation, but whether the witness’ knowledge will aid in the search for the truth.</p> <p>Case, for negligence; Trial by jury and verdict for the plaintiff. The evidence tends to prove that the defendants employed the plaintiff when he was nineteen years old to fell timber, and furnished him a sledge, a saw, and an axe. After he had worked two weeks, he encountered a large tree and applied to McDonald, the man in charge of the work, for a wedge to throw it down. McDonald told him there were no iron wedges, and gave him one made from a dry spruce limb. He inserted the point of the wedge in the saw scarf and began, to drive it with the sledge, and on the second blow a piece of wood struck him in the eye and caused the injury complained of. The plaintiff had never felled a large tree or used a spruce wedge for any purpose before he was injured. Transferred by Branch, J., from the September term, 1918, of the superior court, on the defendants’ exceptions to the denial of their motion for a directed verdict and to the admission of evidence.</p>

Trespass, for false imprisonment. Plea in justification that the plaintiff was arrested for attempting to evade payment of fare upon the defendants’ railway. Trial by jury and verdict for the plaintiff. The plaintiff was a passenger upon the defendants’ railway and refused to pay fare when demanded, claiming that, by the starting of the car before he had opportunity to leave it, he had been prevented from leaving the car at the place to which he had paid.

Assumpsit, to recover an installment of $25,000 under the terms of a logging contract. Trial by jury and verdict for the plaintiff.

Case, for negligence, to recover for injuries received while in the defendants’ employ. The declaration alleged, as the negligence causing her injury, the unsafe condition of the floor of the room in which the plaintiff worked.

<p>A record kept by a third party of the time when the street lights in a city were turned on is governed by the rule as to the admissibility of entries, viz., that they shall be contemporaneous with the facts to which they relate, shall be made by one having personal knowledge thereof and be corroborated by his testimony, if living and accessible.</p> <p>If a ruling excluding experimental evidence on the ground that it raises collateral issues which there is no time to investigate is supported by evidence, no question of law is presented.</p> <p>If the presiding justice makes a mistake correctible at the time, if made known, the objecting party cannot keep silent and rely merely upon his general exception.</p> <p>A wrong reason for a correct ruling will not avoid a verdict.</p>

Probate Appeal, from the report of the commissioner on the estate of Narcisse Landry. Landry was a resident of St. Marie in the Province of Quebec in 1899, when he gave J. A. Morency, the plaintiff’s intestate, a note, which Morency discounted at the local bank. As the note was not paid at maturity, the bank sued both Landry and Morency and recovered judgment against them in 1900.

<p>An employee is entitled to the benefit of the employers’ liability act (Laws 1911, c. 163) if he was engaged in manual or mechanical labor and any part of his work was done in proximity to hoisting apparatus or power-driven machinery and if five or more persons engaged in manual or mechanical labor were employed in or about the shop, etc., in which he worked.</p> <p>Negligence of an employer in leaving a saw unguarded may be inferred from the fact that the employee’s work required him to stand near it.</p>

Action, for negligence under Laws 1911, c. 163, s. 2. The plaintiff was injured in the defendants’ shoe factory upon a heel breast shaver. Upon a view by the jury they saw a machine in full operation similar to the one upon which the plaintiff was injured, except it was equipped with guards. The defendants were subject to the employers’ liability statute, Laws 1911, c. 163, and had not accepted its provisions.

Bill in Equity, to restrain the defendant from interfering with the superintendent of the Manchester waterworks in the performance of his duties. The plaintiffs are the duly elected water commissioners of Manchester, and the defendant is the mayor of the city, who by virtue of his office is also a member of the board of water commissioners.

Covenant, for rent upon a lease of real estate by the plaintiff’s grantor to the defendant Owen who subsequently assigned the lease with the written consent of the lessor to the defendants Gallagher and Huntley. The lessor received rent from the assignees while they were in possession. If the defendants, or any of. them, are liable for the unpaid rent, the order of the superior court is that there shall be judgment for $344.70.

Petition, for a new trial because of newly discovered evidence. The suit was brought to recover for injury received by being run upon by the defendants’ engine at a highway crossing. A verdict for the plaintiff was sustained at the February session, 1919, of the supreme court, ante, 159. Immediately thereafter the defendants filed this petition. The evidence was from a witness of the injury and tended to show absence of care in the plaintiff as its cause.

Replevin, for 2,600 feet of boards. The defendant was the tax collector of Nottingham in 1914 and 1915. In the tax warrant committed to him in 1914 was a tax against Charles W. Bailey & Son, a firm composed of Charles W. Bailey and his son, the plaintiff in this action.

The evidence .tended to prove the following facts. The defendant operates cotton mills and Spilene was employed by it to handle bales of cotton in' its store-house. There was no floor, and the bales rested on large timbers placed some distance apart. The bales were piled to a considerable height, and it was the practice to remove them tier by tier, instead of layer by layer.

Bill in Equity, for the specific performance of an oral agreement. This is the same case reported in 78 N. H. 456. After that opinion was handed down the defendant was permitted to file a cross-bill alleging that the agreement was procured by fraud. The court found for Rollins, and, upon Brock’s disclaimer of an intention to redeem, ordered that his right be foreclosed.

Case, for negligence. Trial by jury and verdict for tbe plaintiff. The facts are stated in the opinion. The defendant excepted to the denial of his motion for a nonsuit and a directed verdict, and to the submission, to the jury of the issue of recovery upon the last clear chance doctrine. Transferred from the April term, 1919, of the superior court by Marble, J.

Case, for negligence. Trial by jury and verdict for the defendants. The plaintiff testified that one of the defendants’ drivers in return for assistance in unloading coal subsequently permitted him to ride upon the unloaded wagon, and that while so riding he was injured by the driver’s negligence.

<p>Case, for negligence. The town of Hillsborough raised the money to repair Depot street, and the defendant selectmen had charge of the work. They decided to lower the grade of the street in front of Judge Holman’s house about eighteen inches. The sidewalk was originally about eighteen inches higher than.the traveled part of the street and after this work was done, there was an abrupt drop of from two and one-half to three feet from the sidewalk to the gutter. There had been two entrances from the street to the Holman property, one at the east, the other at the west of the house; but after the defendants lowered the grade of the street they did not raise the westerly entrance until the following season. The selectmen had charge of the work and the defendant, Bennett, the highway agent, acted under their direction. These changes were made in the fall of 1913.</p> <p>' The plaintiff was injured on a dark evening the following May, in attempting to leave the Holman property by the westerly driveway. On a former occasion she had driven into Holman’s yard over the easterly driveway and left it by the westerly driveway; but at the time of her injury she did not know that the grade of the street had been lowered or that the westerly entrance had been discontinued.</p> <p>The defendant, Bennett, went out of officeas highway agent before the plaintiff was injured; the other defendants continued in office as selectmen until after the injury: Transferred from the May term, 1918, of the superior court, by Kivel, C. J., on the plaintiff’s exception to a directed verdict.</p>

<p>Assumpsit, upon four promissory notes. At the close of the evidence the court directed a verdict for the plaintiff and the defendants excepted. Transferred by Branch, J., from the May term, 1919, of the superior court. The facts appear in the opinion.</p>

Assumpsit. Trial by jury. Tbe defendants employed the plaintiff in March, 1917, to work for a year. He worked under this agreement until May when they sold their business to a corporation which they organized to carry it on, and he went to work for the corporation and was discharged in November. Transferred by Sawyer, J., from the January term, 1919, of the superior court, on the plaintiff’s exception to a directed verdict.

<p>The right to specific performance of a promise to make a deed of gift of land on. the ground of part performance is a “legal title” within the meaning of the statute of betterments.</p> <p>A valid compromise of a controversy over the price to be paid for a conveyance of real estate is a defence to any claim setting up an alleged original price differing from the one specified by the compromise.</p> <p>Where there is a right in equity to receive a conveyance of land upon payment of a certain sum to the owner he may be regarded as holding an equitable mortgage on the premises to secure that payment; whether there should be a strict foreclosure with reasonable time for redemption, or whether a sale should be ordered depends upon the finding by the superior court of what justice requires, and appropriate relief may be granted though the proceeding is a writ of entry.</p>

Assumpsit, trial by jury and verdict for the plaintiff for $8,144.67, which the court ordered set aside unless the plaintiff filed a remittitur in the sum of $5,870.13.

Assumpsit, by the indorsee of a note which the defendants gave the Night Commander Lighting Company, a Michigan corporation, in payment for a lighting plant which it installed on their premises in the town of Bow. Trial by jury and verdict for the plaintiff. Transferred from the October term, 1918, of the superior court by Sawyer, J., on the defendants’ exceptions to the court’s charge and to the refusal to charge.

Bill in Equity, by certain taxpayers of Manchester against the mayor and treasurer of the city and one Lafiamme to enjoin the payment of Laflamme’s claim against the city, which on December 17, 1918, the board of mayor and aldermen of the city had voted to pay. The complainants are members of said board and voted against the payment of the claim.

<p>Precautionary instruction to an employee is a duty only so far as there is reason - to apprehend danger to those not instructed.</p> <p>An experienced employee was injured while attempting to remove with her hand lint which had accumulated close to revolving gears of which she was ignorant. Contrary to her custom and that of other employees, she did not stop the machine or use a brush. Upon the foregoing and other facts, her employer owed her no duty to warn her of the danger to her hand from the revolving gears.</p> <p>Case, for negligence. Trial by jury. At the close of the evidence for the plaintiff the court ordered a nonsuit, and the plaintiff excepted. The case was transferred from the January term, 1919, of the superior court by Branch, J. The facts relating to the exception appear in the opinion.</p>

Trespass, for assault and battery. Trial by jury and verdict for the plaintiff. The evidence tended to prove that the defendant assaulted the plaintiff and lamed his knee. Someone took an x-ray of his knee and sent the plate to an expert to be interpreted. The plate was returned with a report as to what the x-ray indicated.

Assumpsit, for the price of a carload of beans. Trial by jury and verdict for the defendant. It appeared in evidence that prior to April 6, 1917, the defendant, through its manager, E. M. Slayton, had purchased Chilean beans, known as Bayos, from the plaintiffs and had insisted upon and received a high grade of goods.

<p>Action, for the breach of an oral contract. Trial by the court, and verdict of two hundred dollars for the plaintiff. The defendant excepted to the court’s refusal to order a nonsuit and a directed verdict in his favor, upon the ground that the oral contract was a promr ise to answer for another’s debt and within the statute of frauds. The facts appear in the opinion.</p> <p>Transferred from the January term, 1919, of the superior court, by Allen, J.</p>

Probate Appeal, from the allowance of the will of Thomas H. Daniels. The document was signed: “Thomas H. Daniels. Witnesses Wilmer C. Cox ' Amos Blake. Signed before me, John It.

Case, for conspiracy. The action was begun by trustee process.

<p>Transferred from the April term, 1919, of the superior court by Marble, J.</p>

<p>The remark by counsel for defendant, arguendo, that “if he is liable in this case, he is mortgaged forever,” being an immaterial and prejudicial statement as to his financial ability vitiates his verdict.</p> <p>Case, for negligence. Trial by jury and verdict for the defendants. The plaintiff, a farmhand, claimed that a defect in a stationary ladder in a barn caused his fall, while descending thereon, and his consequent injury. An exception was taken to the argument of defendants’ counsel, which is stated in the opinion.</p>

Action, for personal injuries which the plaintiff claims to have received by being pushed or thrown against a roping box by one Smith, who at the time had charge of the help in the room where the plaintiff worked. Trial by jury and verdict for the plaintiff. The defendant’s motions for a nonsuit and for a directed verdict were denied subject to exception.

Bill in Equity, for an accounting and discovery. The ground of complaint alleged is that the plaintiff and defendant are co-executors of and residuary legatees under the will of Mary L. Patten, late of Claremont, that Lambert owes the estate money, that he refuses to give an account of the same, and that the estate has been so far administered that no one is interested therein except the residuary legatees.

Case, for negligence, to recover- for personal injuries received by the plaintiff while in the employment of the defendant in his bakery. The plaintiff’s principal work was dish washing, but on the third day of her employment the defendant requested her to grind material for mince pies.

<p>In an action upon the employers’ liability act, assumption of the risk is not a defence. (Laws 1911, c. 163, s. 2.)</p> <p>Under that statute contributory negligence cannot be established except by a preponderance of evidence and hence the mere failure of the plaintiff to offer evidence of care, or of facts from which care could be inferred, is immaterial.</p> <p>Certain evidence field sufficient to warrant a finding that injuries received by an infant employee resulted from directions given to him by his employer, rather than from his own negligence.</p> <p>When a portion of the deposition of one party is offered in evidence by his opponent, the deponent has the right to read to the jury so much of the deposition as pertains to the same subjects, and tends to qualify, limit, or explain the answers read by his opponent.</p> <p>Case, under Laws 1911, c. 163, s. 2, for injuries received while in the defendants’ employ. Trial by jury before Marble, J., and verdict for the plaintiff. The plaintiff who was seventeen years of age at the time was caught in the gears of a wire-twisting machine which by direction of the defendants he was attempting to oil while in operation. The facts appear in the opinion.</p> <p>The defendants’ motions for a nonsuit and directed verdict were denied subject to exception. Transferred from the April term, 1919, of the superior court, by Marble, J.</p>

Case, to recover for damages to an automobile caused by a defective culvert. Trial by jury and verdict for the plaintiff. The plaintiff drove off the end of a culvert in turning out to pass an approaching automobile. There was nothing to indicate the existence of the culvert nor to notify a traveler that it was not safe to turn out in the way the plaintiff did.

Case, for injuries received while in the defendants’ employ. Trial by jury and verdict for the plaintiff. The defendants had duly accepted the provisions of the employers’ liability and workmen’s compensation act, c. 163, Laws 1911. The plaintiff, who was sixteen years of age at the time of the injury, was employed to take away from a saw fed by another employee. He was so engaged about five hours in the forenoon of the day of his employment.

Case, for conspiracy to defraud tbe plaintiff. Trial by jury and verdict for the plaintiff. The defendants excepted to certain statements made in the argument for the plaintiff, which are stated in the opinion. Transferred from the May term, 1919, of the superior court by Sawyer, J.

Action, of negligence for personal injuries. At the close of the plaintiff’s evidence a nonsuit was ordered, and the plaintiff excepted. The evidence relating to the exception appears in the opinion. Transferred from the May term, 1919, of the superior court, by Allen, J.

Case, for negligence. Verdict for the plaintiff against the city of Berlin, one of the defendants. At the close of the plaintiff’s evidence the court ordered a nonsuit, subject to the plaintiff’s exception, in favor of the electric company and the Berlin Water Company, the other defendants. The city excepted to the denial of its motions for a nonsuit, and for a directed verdict.

Bill in Equity, involving the construction of the will of Cora C. Furber. Henderson was appointed by the probate court under clause four of the will as trustee in place of Edward E. Carlton who declined the trust.

Motion, to abate an action for personal injuries made at the May term, 1919, of the superior court. The plaintiff, a married woman, died May 23, 1918, before trial. Her husband named as executor in her will, was drafted into the military service of the United States, June 27, 1918, and was discharged January 27, 1919. Some time after May 15,1919, he was appointed executor, no other having been appointed.

Assumpsit, on an indemnity policy. The defendants insured the plaintiff against liability for loss imposed on him by law “by reason of the ownership, maintenance and use” of his automobile. The plaintiff was a partner in the firm of B. Steinfield Sons and used the machine in the partnership business.

One Moulton owned a lot of land in Lisbon on the northerly side of Atwood street. There was upon the front of this lot a house and back of it a paint shop. October 6, 1913, Moulton deeded to the defendant a portion of this land. The lot conveyed had a frontage on the street of seventy-five feet, and extended back sixty feet.

<p>In an action at common law for personal injuries by an employee against his employer who has accepted the provisions of Laws 1911, c. 163, the plaintiff is subject to the defence of the assumption of the risk.</p> <p>Certain evidence warranted the submission of the question to the jury whether an inexperienced employee, injured by the fall of a steel plate from a hoisting crane, was properly instructed as to the danger of the fall of the plate by its slipping therefrom and whether he assumed the risk.</p> <p>Action, at common law, for negligence causing personal injuries. Trial by jury and verdict for the plaintiff.</p> <p>The plaintiff was employed July 1, 1918, to work at night in the defendants’ shipyard at Portsmouth. On the night he was injured he was working with a crew that were taking steel plates from a freight car with a steam crane, and putting them in a plate-rack near the track. lie was a ground-man, and it was his duty, as the plates were swung off the car and around to the plate-rack, to assist in guiding them with a pole, so that they would be properly deposited in the plate-rack. There was a clamp attached to a cable which was suspended from the end of the boom of the steam crane. When a plate was to be removed from a car to the plate-rack, the jaws of the clamp were opened, and the plate inserted between them. As the crane pulled up the cable, the jaws were drawn together, gripping the plate; and it was then taken up, and swung around to the plate-rack. When the accident occurred on the night of July 14, 1918, the crew were taking from a car a plate thirty feet long, four feet wide and half an inch thick. As the boom swung the plate from the car into the air towards the plate-rack, the plate slipped from the clamp, fell to the ground, and struck the plaintiff.</p> <p>At the close of the plaintiff’s evidence the defendants made a motion for a nonsuit, and at the conclusion of all the evidence they moved for a directed verdict. Both motions were denied, and the defendants excepted. Other exceptions were taken by the defendants, but they were not relied upon in brief or argument. Other evidence relevant to the exceptions appears in the opinion.</p>

Bill in Equity, for the specific performance of a contract to convey land. Transferred from the October term, 1919, of the superior court by Sawyer, J. The court found the defendant the owner of a house and lot known as No. 234 on Union Avenue in Laconia, which on April 4,1919, she agreed to sell to the plaintiff for $3500, receiving on the purchase price the sum of $100. At the same time she gave him a receipt in the following terms: “$100.

<p>In case for running down the plaintiff’s wagon by the defendant’s electric car, though the plaintiff was driving negligently yet if the defendant’s motorman knew of the danger therefrom in time to have prevented the injury and that the plaintiff did not appreciate the danger, a verdict may be rendered for the plaintiff.</p> <p>The order of procedure being within the discretion of the trial court, the admission of evidence in chief, after the plaintiff has rested, is not exceptionable.</p> <p>The failure to call an available witness is legitimate matter for argument to the jury.</p>

Petition, for a writ of certiorari. Facts agreed. The plaintiffs are the heirs at law of Jeremiah Hodge who died July 16, 1916. Hodge bought a tract of land in 1873 from the Amoskeag company, described in his deed as bounded on the south by Summer street as shown on a plan on file in the company’s office. This plan was recorded in 1844.

Action, for personal injuries under Laws 1911, c. 163. The defendants were subject to the above act, and had not accepted its provisions. Trial by jury and verdict for the plaintiff. There was a view of the premises where the plaintiff was employed. The machine upon which he was injured was seen when at rest and when in motion.

Indictments, for assault and battery upon one Fox, a police officer of the town of Raymond. The cases were tried together and resulted in verdicts of guilty. The defendants excepted to the admission of certain evidence and to the argument of the county solicitor to the jury, as appears in .the opinion. Transferred from the October term, 1919, of the superior court by Allen, J.

Actions, to recover for the death of the plaintiffs’ intestates, Nora K. Collins and Joseph I. O’Brien, caused by a collision, June 27,1917, between an automobile in which the deceased were riding and a passenger train upon a grade crossing of the defendant railroad and the East Side road in Milton. The defendants in each case excepted to the denial of their motions for a nonsuit and a directed verdict.

Writ of Entry. Trial by jury. The plaintiff leased the Star theater to the defendant, a Massachusetts corporation, in October, 1915, for the term of five years. The legislature of Massachusetts repealed its charter in March, 1917, but continued it as a body corporate for three years for the purpose of “enabling it gradually to settle and close up its affairs.” The other facts are stated in the opinion.

Case, for negligence under the employers’ liability act. Trial by jury and verdict for the plaintiff. One question was whether the plaintiff’s employment took him near a power-driven cement mixer so as to bring him within the provisions of the act.

<p>Bill in Equity, praying that the defendant, the Fidelity and-Deposit company be ordered to pay the plaintiffs’ bill against Long in accordance with the provisions of a bond of the Deposit company, running to the city of Manchester, one of the defendants, and procured by Long in accordance with his contract with the city to build for the city certain buildings. He agreed in writing to provide all the materials and to perform all the work for the erection of the buildings which were known as the Manchester city hospital and the city agreed to pay him for the performance of his undertaking the sum of $56,945. It was also agreed in the contract that, “should the contractor at any time refuse or neglect to supply a sufficiency of properly skilled workmen, or of materials of the proper quality, or fail in any respect to prosecute the work with -promptness and diligence, . . . the owner shall be at liberty after three days’ written notice to the contractor to provide any such labor or materials and to deduct the cost thereof from any money then due, or thereafter to become due to the contractor under this contract. The contractor shall furnish owner a surety bond in the sum of $25,000, that the buildings will be completed as called for in plans and specifications.” As a part of this transaction, Long procured a bond, signed by himself as principal and the Deposit company as surety, for the sum above mentioned, running to the city, and duly delivered the same. It was conditioned for the faithful performance by Long of his agreements with the city and for the payment by him “for all labor performed or furnished and for all materials used in the fulfillment of said contract.”</p> <p>Subsequently the plaintiffs under a contract with Long, furnished all labor and materials necessary for the installation of the plumbing, gas and vacuum systems in the hospital buildings. A substantial part of the amount due the plaintiffs under this contract has not been paid, although the plaintiffs have demanded payment from Long, who is financially embarrassed, and from the Deposit company.</p> <p>The question was transferred from the May term, 1919, of the superior court, by Allen, J., whether upon the foregoing facts the Deposit company is liable to the plaintiffs for the amount due them from Long.</p> <p>Certain exceptions taken to evidence are stated in the opinion.</p>

Action, to recover freight charges. Facts agreed. Case transferred from the September term, 1919, of the superior court by Marble, J., without a ruling. In August, 1912, one Hutchings purchased of the defendant seventeen pieces of granite in Milford, N. H., which was sold f. o. b. cars. Of this arrangement the plaintiff had no knowledge. The granite was shipped by the defendant under a bill of lading from Milford, N. H., to Hutchings at Milford, Mass.

Assumpsit, to recover for ferrying, that is, for receiving and delivering on the tracks in the defendants’ yard cars containing freight shipped in less than carload lots. Trial by the court and verdict for the plaintiffs. The defendants admit that the plaintiffs performed the service in question and defend on the ground that they have been paid for performing them.

Actions, for negligence. Trial by jury upon the question of liability, and verdict for the defendant. A view was taken by the jury. The plaintiffs' sustained property loss, May 29, 1918, by reason. of the breaking away of the defendant’s dam, which was located in the town of Hill. The plaintiffs claimed, and their evidence tended to prove that the failure of the dam was due to its improper construction and negligent maintenance.

<p>Action, on three bonds given by the defendants as sureties for one Harry P. Brown, the plaintiffs’ treasurer. Trial by jury and verdict for the plaintiffs. Two of the bonds were for $15,000 each, in each of which the obligee was described as "Savings Department, Guaranty Trust Company.” The third was for $10,000, running to “Trust Department Guaranty Trust Company.”</p> <p>At the close of all the evidence, the defendants moved for a directed verdict and excepted to the denial of their motion; to the refusal to give certain instructions requested by them; to instructions which were given; and to a portion of the argument of plaintiffs’ counsel. The evidence relevant to the exceptions appears in the opinion. Transferred by Kivel, C. J., from the September term, 1919, of the superior court.</p>

Assumpsit, to recover damages for failure to deliver a carload of flour. Trial by jury and verdict for the defendant. The evidence tended to prove the following facts: As parts of a single transaction, the defendant’s agent sold the plaintiff two carloads of flour, one for immediate delivery and the other to be “ordered out” by the plaintiff within 60 days. The orders were sent to the defendant, and it returned to the plaintiff two written memoranda of the transaction.

<p>Transferred by Sawyer, J., from the May term, 1919, of the superior court.</p>

<p>A master is liable for injury inflicted upon a trespasser or licensee by the negligent failure of a servant, acting within the scope of his employment, to prevent the injury after discovering the danger.</p> <p>The opinion of a witness who saw,the place where a person was injured by falling from and being run over by a team may testify that the team could be stopped there “almost immediately,” “within three or four feet.”</p> <p>Case, for causing the death of the plaintiff’s intestate. One Gillis, who was employed by the defendant to haul wood from her farm to the railroad, invited the intestate, a boy of ten, to ride with him, in violation of her orders. When the team was approaching the boy’s home, Gillis turned around to see if any automobiles were approaching, and when he turned back to the team he saw the boy disappearing over the front of the load: Gillis made a grab for him and missed him, and stopped the team within a distance of eleven to twelve feet, but at that time the boy was dead. Other evidence is stated in the opinion. Transferred from the May term, 1919, of the superior court by Kivel, C. J., on the plaintiff’s exception to a, nonsuit.</p>

Case, for negligence. Trial by jury and verdict for the plaintiff. The defendant had accepted the provisions of the employers’ liability act and the case was tried at common law. The plaintiff was the defendant’s servant, employed as a lineman, and was injured by the falling of a decayed pole, upon which he was working. The defect should have been discovered by the defendant’s employee, Green, who inspected the pole some months before.

<p>If, after the termination of a contract, the parties proceed in the same manner without any new express contract, there is a presumption that they understand their relations are governed by the terms of the expired contract; but this presumption is one of fact and not of law and may be rebutted.</p>

Case, for personal injuries. Trial by jury and verdict for the plaintiff. The plaintiff, who was an employee of John W. Flannigan, was injured by the collapse of the staging on which he stood to plaster one of the halls in the defendant’s house.

Action, under the employers’ liability statute, for negligently causing the death of the plaintiff’s intestate. Trial by jury and verdict for the plaintiff. The defendant was subject to the employers’ liability act, but had not accepted its provisions. The plaintiff’s intestate was working for the defendant, who was engaged in building a retaining wall for the Nashua Manufacturing-company on the bank of a river.

<p>One who operates an automobile in transporting passengers for hire along a regular route, making no stops and receiving and discharging passengers only at the termini, does not receive and discharge passengers “alona a regular route over which the vehicle is operated” within the meaning of Laws 1919, c. 86, s. 1.</p> <p>In the ascertainment of the legislative purpose in a statute, the object and procedure are the same as in the construction of a private contract: the situation of the parties, the general purpose in the enactment and all gpparent circumstances connected therewith are competent evidence of the intention expressed by particular words and phrases.</p> <p>Indictment, under chapter 86, Laws 1919. The respondent operated an automobile in Portsmouth in the business of transporting passengers for hire along a regular route. He made no stops, taking on and discharging passengers only at the termini. The respondent is guilty if these facts bring him within the statute. Transferred without a ruling upon the agreement of the parties by A lien, J., from the May term, 1920, of the superior court.</p>

<p>A definite description in a deed is not to be limited by a clause therein that “said piece of land is to contain one acre by measure,” in the absence of competent evidence establishing that it was intended the description should include no more.</p> <p>Writ oe Entry. Facts found by a referee. By deed dated October 30, 1856, Jeremiah Leavitt conveyed to Samuel Hadley a piece of land in what is now Belmont by the following description: “A certain tract or parcel of land, situate in said Gilmanton, & is a part of lot No. 9 in the 10th range of hundred acre lots, in the Upper Parish, in said town, & bounded as follows: beginning at the westerly corner of Bradford Hadley’s land on the road leading by the dwelling house of James Bundlett, thence northeasterly on said Bradford’s land about eleven rods to a stone wall which divides my pasture from my field, thence northwesterly on said wall about sixty rods, to another wall which divides my two fields, thence south-westerly on said wall about eighteen rods, to the aforesaid road, thence southeasterly on said road about sixty rods to the bound begun at.” By deed dated November 5, 1856, recorded September 22, 1863, Samuel Hadley conveyed to John O. Cotton a piece of land off the southeasterly end of the land he got of Leavitt with the following description: “A certain tract or parcel of land situate in said Gilmanton and bounded as follows: southeasterly by Bradford Hadley’s land, northeasterly by Jeremiah Leavitt’s land fourteen rods to a stake and stones, thence southwesterly to the road leading by said Hadley’s dwelling house, thence southeasterly fourteen rods to the aforesaid Bradford Hadley’s land. Said piece of land is to contain one acre by measure.”' By deed dated September 19, 1863, recorded September 22, 1863, Samuel Hadley conveyed to his daughter, Amanda J., the wife of John O.- Cotton, the balance of the land conveyed to him by Leavitt.</p> <p>The controversy is as to the location of the westerly line of the land conveyed to Cotton by Hadley. The stake and stones on Jeremiah Leavitt’s land mentioned in the deed as the starting point of the line cannot now be located. The plaintiffs claim the clause in the deed, “said piece of land is to contain one acre by measure,” is controlling and that the line should be located parallel to the line of Bradford Hadley’s land so as to include exactly one acre by measure.</p> <p>The defendant claims that the line should be located at its two extremities on Jeremiah Leavitt’s land and the highway fourteen rods from' Bradford Hadley’s land. If the westerly side of the tract is so located the tract contains eighteen rods more than an acre.</p> <p>There are no extrinsic circumstances to control or affect the construction of the second deed, except the impracticability of now determining the location of the stake and stones therein mentioned as a bound, and the question of the location of the line in dispute by construction of the deed of Samuel Hadley to Cotton is referred to the court by the referee. Transferred without ruling by Marble, J., from the March term, 1920, of the superior court.</p>

Case, against the defendant as a physician and surgeon for negligent treatment of the plaintiff’s testate, as a result of which he suffered and died. Trial by jury and verdict for the defendant. Transferred by Kivel, C. J., from the January term, 1920, of the superior court. There was evidence that the treatment was begun June 13, 1914, following an accident which lacerated thé testate’s finger. He died on the twenty-third of the same month.

<p>The conclusion of the trial court that it does not clearly appear that injustice would result from the exclusion of the testimony of the surviving party may, if excepted to, be revised by the supreme court under P. S., c. 224, s. 17.</p> <p>In case by a servant against his master’s estate for injuries received from a defective machine, the servant’s testimony as to his own acts at and just before his injury is admissible, if the decedent was not then present; but where it does not appear that the decedent was ignorant of the condition of the machine, the plaintiff’s testimony on that subject is inadmissible.</p> <p>Case, for negligence, brought under the provisions of the'employers’ liability act. At the close of the plaintiff’s evidence a non-suit was ordered subject to exception. The defendant died after the accident and before the trial.</p> <p>The plaintiff was injured while operating a dieing-out machine in the defendant’s shoe shop. The plaintiff called a witness who testified that he was working near the plaintiff, heard his outcry when injured, and that the defendant was not anywhere near them. The plaintiff was then called as a witness in his own behalf. The defendant’s counsel stated that the defendant executor elected not to testify, and objected to any testimony from the plaintiff covering anything that took place before the decedent died. This objection was sustained, and the plaintiff’s offer of his own testimony how he got hurt was excluded, subject to exception.</p>

<p>In case for negligence, if there is no evidence that reasonable precaution by the defendant would have disclosed the plaintiff’s presence in season to have averted the injury, his case fails for lack of proof that such alleged fault caused or contributed to his injury. .</p> <p>A finding upon the voir dire that a child of seven is incompetent to testify is conclusive, if supported by evidence; and a finding of incompetency is unexcep- • tionable if based upon evidence of the lack of moral responsibility, though mental capacity is found to exist.</p> <p>Case, for negligence. Trial by jury. At the close of the plaintiff’s evidence a nonsuit was ordered, subject to exception.</p> <p>The accident happened in the yard of the Boston & Maine Railroad, near Temple street, Nashua. At this place there are three parallel tracks which are used for storing and shifting cars. The locality was commonly used by boys as a playground-.' The accident happened about seven o’clock, standard time, on the evening of April 30, 1918. The plaintiff was then six years old and was accompanied by another boy, Charles Allison, who was seven. No testimony of any eye witness to the accident was introduced; but upon cross-examination of the plaintiff’s father he was permitted to state what the boys had told him about it. From these statements it appeared that the boys entered at Temple street, crossed all three tracks, picked up some numbered slips of paper and started back. The Allison boy was ahead, and a car struck the plaintiff as he was crossing the last track, knocked him down and ran over his-foot. He did not see the car before it struck him.</p> <p>There were several box cars standing on each of the other two tracks, near the place of accident, but there was no evidence as to their exact location. In shifting cars in and out of these sidings the railroad employees either ride the cars or go alongside on foot. None of the crew at work there that night knew of the accident until told of it some hours later.</p> <p>The plaintiff offered himself and the Allison boy as witnesses. Both were found to be incompetent and their testimony was excluded, subject to exception. In excluding the Allison boy the court said: “He is a bright boy, no doubt about that, but I feel that I should not allow him to testify. Here the rights of parties are to be considered, and this is different from a life and death base. If it were a murder case, I might feel a little different, but as to property rights, injury to person, not involving life or life imprisonment, or something of that kind, I feel different. I am constrained to rule that way. I find that he is not competent, and I exclude his testimony as a matter of discretion.”</p> <p>Later in the trial the plaintiff renewed his offer as to the Allison boy, and the court said: “The decision arrived at in open court yesterday was based upon all of the answers of the child, and particularly it was based upon his answer to me where he undertook to state that he would be punished by God, I think he said, if he told a lie; that answer was really what controlled me in refusing to allow you to put the boy on the stand.”</p>

Case, for negligence. The plaintiff was injured while attempting to cut one of the defendant’s electric lighting wires, which had fallen in the highway opposite his residence in Berlin. Trial by jury. Case transferred from the December term, 1919, of the superior court by Marble, J., on the plaintiff’s exception to the granting of a motion for a nonsuit. The plaintiff was a millwright, and was more or less familiar with the uses and dangers of electricity.

<p>A demand is not necessary to terminate a lease for non-payment of rent, if by the terms of the lease a demand is unnecessary.</p> <p>Though by the acceptance of overdue rent a lessor waives his right to terminate the lease for default in such payment, he does not thereby waive his right to insist by notice that subsequent payments shall be made when due.</p> <p>Under P. S., c. 246, s. 4; Laws 1905, c. 57, a notice by a lessor to the lessee to quit-on a'day certain, more than seven days after the day of service, is equivalent to entry for condition broken.</p> <p>Writ oe Entry. When the plaintiffs purchased the demanded premises, they were leased to the defendant for the term of ten years from the 28th of May, 1918, and they purchased subject to the lease. The defendant was in the habit of not paying his rent until the first of the next month, and on Dec. 26,1919, the plaintiffs notified him that he must pay it on the 28th of the month, when it was due. He neglected to pay his rent on that day and on December 30th they notified him to quit on the 31st day of the next month, and subsequently brought this suit. The court directed a verdict for the plaintiffs and the defendant excepted. Transferred from the April term, 1920, of the superior court by Kivel, C. J.</p>

Case, for negligently causing the death of the plaintiff’s intestate. Trial by jury and verdict for the defendant. It was not alleged and there was no evidence tending to prove that the intestate left any relatives, and at the close of the evidence the defendant moved for a directed verdict on the ground it could not be found that the intestate left an heir-at-law, surviving him.

Case, for negligently killing the plaintiff’s intestate, William E. Pickard, as he was passing on foot over a level crossing on Main street, Tilton. Trial by jury and verdict for the plaintiff. Transferred from the March term, 1917, of the sflperior court by Sawyer, J., upon the defendant’s exceptions to the denial of its motions for a nonsuit and for a directed verdict.

Petition, for the construction of a will. The question is whether two houses and the land on which they stand are devised by a certain .clause of the will. Transferred by Allen, J., without a ruling from the October term, 1917, of the superior court.

Assumpsit, for breach of an alleged contract to clear the plaintiff’s land of brush and bushes. At the close of the plaintiff’s evidence the court (.Kivel, C. J.) ordered a nonsuit, and transferred the case upon the plaintiff’s exception from the September term, 1917, of the superior court.

Case, for negligence. Trial by jury and verdict for the plaintiff. Transferred from the April term, 1918, of the superior court by Marble, J., upon the defendant’s exceptions to the denial of his motions for a nonsuit and a directed verdict, and to the argument of plaintiff’s counsel to the jury. The facts are stated in the opinion.

<p>Case, for personal injuries. Verdict for the defendant. The court found that the trial was unfair and set the verdict aside. Transferred by Sawyer, J., from the April term, 1917, of the superior court •on the defendant’s exception to this finding.</p>

Bill in Equity, to cancel a deed. Trial by jury and verdict for the plaintiff. .Two issues were submitted to the jury: (1) was the grantor of sound mind, and (2) was the deed procured by undue influence. Transferred by Allen, J., from the May term, 1918, of the superior court, on the defendant’s exception to the denial of her motion for a directed verdict.

Action, to recover damages for the alleged failure of the defendant to furnish proper facilities for the transportation of the plaintiff’s property, under P. S., c. 160, ss. 1, 2. There was a verdict for the plaintiff, which the court set aside and the plaintiff excepted. Transferred from the January term, 1918, of the superior court by Sawyer, J.

<p>Case, for false warranty in the sale of a spring. The action was defaulted but the default was afterwards stricken off upon the defendant’s agreement not to contest the question of liability. Trial by the court, who found a verdict for the plaintiff.</p> <p>The plaintiff claimed to have been deceived by the defendant as to the title to the spring, but the court found he was not deceived and that his damages sounded in covenant and not in tort. The plaintiff moved for a certificate upon the execution under s. 12, c. 236, P. S. The motion was denied and the plaintiff excepted. Transferred by Branch, J., from the May term, 1919, of the superior court.</p>

Trover, for certain articles of personal property sold as a part of the farm in controversy in Rollins v. Brock, 78 N. H. 456. Trial by the court and verdict for the defendant. Transferred from the May term, 1918, of the superior court by Marble, J., on the plaintiff’s exception to the verdict.

<p>Case, transferred from the April term, 1919, of the superior court by Branch, J., on an agreed statement of facts.</p>

<p>Assumpsit. Trial by jury, verdict for the plaintiffs. Their evidence tended to prove that one Patten, the defendant’s father-in-law, spoke to them in March, 1917, about buying a lot of lumber belonging to the defendant, and that they offered him twenty dollars a thousand for it delivered to their mill and subsequently wrote the defendant to that effect. They could not agree, however, on the details of the trade and the matter dropped until the following November, when Patten asked them if they still wanted the lumber. They said they did, and the next week he .delivered two loads and refused to deliver any more because their measure was unsatisfactory. Transferred from the May term, 1919, of the superior court by Branch, J., on the defendant’s exception to the denial of his motion for a directed verdict.</p>

Case, for personal injuries. Verdict for the plaintiff. The defendant’s motions for a nonsuit and for a directed verdict were denied and the defendant excepted. The essential facts are stated in the opinion. Transferred from the September term, 1919, of the superior court by Sawyer, J.

Action, for personal injuries alleged to have been sustained through the nlegligence of the defendant’s employees while loading a wagon with empty packages at a customer’s store. There was a trial by jury, and a verdict was returned for the defendant. Exception was taken by the plaintiff to the charge of the court. Transferred from the October term, 1919, of the superior court by Allen, J.

<p>Transferred from the October term, 1919, of the superior court by Sawyer, J.</p>

Assumpsit, for money had and received. The plaintiff sought to recover the sum of $517, paid on account of the purchase price of an automobile which he bought of the defendant and which the defendant afterwards took from the plaintiff. Trial by the court and verdict for the plaintiff. At the close of the evidence the defendant moved for a verdict. This motion was denied subject to exception. Transferred from the September term, 1919, of the superior court by Marble, J.

<p>The adjutant-general cannot be removed from office except upon address by the legislature.</p> <p>July 2, 1919, the governor and council adopted the following resolution:</p> <p>Resolved: That the supreme court be requested to render an opinion as soon as possible as to whether, under the constitution and laws of the state of New Hampshire, the governor can legally remove the adjutant-general at his pleasure, and for such further interpretation of any of the provisions of the constitution and laws bearing on the matter as it may be the pleasure of the supreme court to render.</p> <p>The justices being informed by the secretary of state of this action of the governor and council heard the parties at Concord, July 11, 1919, and subsequently submitted the following:</p>