Volume 80 — New Hampshire Reports

Indictment, alleging “That Augustus Foster, of Haverhill, in the County of Essex and Commonwealth of Massachusetts, on or about the 18th day of October in the year of our Lord one thousand nine hundred and nineteen at Raymond in the County of Rockingham, aforesaid, with force and arms, when the public streets of said Raymond were frequented by disorderly and riotous persons who were threatening to commit and committing assaults upon peaceful citizens then and there passing,…

Appeal, by the Boston and Maine Railroad from the refusal of the city of Portsmouth to abate a tax assessed by said city on the Nobles Island power plant, so called, for the year 1919, which was paid by the plaintiff, under protest, July 15, 1919. Upon a hearing, the facts were agreed to.

Assumpsit, to recover for the use and occupation of the ice-house and pond at the plant formerly occupied by the Eldridge brewery in Portsmouth. The liability was admitted. The only issue submitted to the jury was the fair rental value of the premises for the time occupied. The jury returned a verdict for $1685.

Trespass, for breaking and entering the plaintiff’s close in Middleton and carrying away a building. Trial by the court and verdict for the defendants. At the request of the plaintiff, the court found the facts and made certain rulings of law. On November128, 1916, the defendant Fred L. Leighton made a written contract with the plaintiff by the terms of which he agreed to sell the plaintiff his farm.

Debt, to recover the penalty prescribed by P. S., c. 244, s. 1. Trial by the court, who transferred the following as an important question of law: Does s. 1 apply to the removal of growth standing on the land of another if the owners of the growth remove it after their right to enter for that purpose has expired? Before the defendants began to cut, they were notified to quit the premises. Transferred by Sawyer, J. from the May term, 1920, of the superior court.

<p>Evidence of one slight slap on the face during a cohabitation of nine years, with evidence that the parties frequently disagreed and engaged in heated discussions, does not conclusively prove extreme cruelty.</p> <p>Libel, for divorce. Facts found by a master, upon whose report of the facts and the evidence the court dismissed the libel and the libelant excepted. Transferred from the October term, 1919, of the superior court by Branch, J.</p> <p>The master found that on December 3, 1912, the parties had a somewhat heated discussion upon the subject of the libelant’s morals, in the course of which the libelee slapped her upon the face with the palm of his hand producing no serious effect upon her person, but causing her to cry. There was no evidence that he had ever before struck her or that he attempted to assault her after that time up to August, 1917, when she finally left him. His general conduct toward her was characterized by violent and profane language calculated to make her unhappy and discontented. At times he was intoxicated. The master in his report recommended the granting of a decree. After the filing of the report, the court recommitted it, with instructions to the master to report all evidence bearing upon the conduct and relationship of the parties from December, 1912, to the date of their final separation. Subsequently the master filed a supplementary report, recounting the evidence called for. In addition to the evidence supporting the foregoing finding of facts there was evidence that in 1912 and subsequently the parties did not often agree and engaged in constant disputes upon a variety of subjects; that they lived together most of the time until sometime in 1916 when she left him; that in that year he was taken sick and she took care of him and nursed him for some nine months until he recovered. Before she left him his treatment of her had been substantially the same as it had been for some years before.</p>

Other facts are stated in the opinion. It was ordered that the bill be dismissed. To the foregoing findings the plaintiffs excepted as follows: 1. To the ruling that the Tall’ant bill in equity did not have the effect of staying or suspending the foreclosure' of the Smith mortgage. 2.

<p>In an action upon the federal employers’ liability act (30 U. S. Stat. 60), the negligence of a fellow-servant is not a defence; and the burden of proving assumption of risk is upon the defendant.</p> <p>The plaintiff, an experienced freight-handler, while assisting to load granite blocks onto a car was injured by the tipping over of a block, which with the others was standing on end and apparently secure. On the foregoing and other evidence the question of the negligence of a fellow-servant in not trigging the block and the question whether the plaintiff reasonably believed that the stones had been safely placed, were properly submitted to the jury. '</p> <p>In such a situation the duty of ascertaining whether the stones had been safely placed rested upon the employer.</p>

<p>Petition, for advice by the executor of the will of Rhoda Converse. The will, dated June 3, 1913, made to different individuals bequests of the deposit with accumulated interest made by the testatrix in each of two savings banks, describing each by its number.</p> <p>Upon the testatrix’s petition the plaintiff, Francis A. Morse, on August 7, 1917, was appointed conservator of her property by the probate court under c. 56, Laws 1915. She died March 30, 1919, without having been adjudged insane. In ignorance of the provisions of the will, the conservator in 1917 withdrew $500 from each of the savings banks at the request of the surety upon his official bond and bought therewith a liberty bond of the first issue, and used the balance of the deposits with the deposit in another savings bank in the testatrix’s necessary support. The balance of the estate in the hands of the conservator consisted of railroad stocks and bonds. The executor now has the liberty bond bought by him as conservator.</p> <p>The question submitted is whether the legatees of the savings bank deposits take anything by the bequests to them. Transferred from the May term, 1920, of the superior court by Marble, J.</p>

Action, to recover an indemnity, upon a policy originally issued August 18, 1908 by the.United States Health and Accident Insurance Company, payable to the plaintiff upon the death by accident of her husband, Edward E. Hoyt, who was killed in a railroad accident March 3, 1916. Some time in 1914 the policy was assigned by the insurer to the defendant, Massachusetts Bonding and Insurance Company, who assumed and subsequently renewed the same from time to time.

Bill in Equity, to reach funds held by the defendant Loveren as executor under the will of Perry A. Eaton, deceased.

Petition, by the executor of the will of Henry W. Griffiths for the advice of the court as to the construction of the will of the testator. Transferred from the April term, 1920, of the superior court by Sawyer, J., without a ruling.

Assumpsit, upon a policy of indemnity insurance, being the same action heretofore reported, 79 N. IT. 422. The policy contained a stipulation that suit must be brought within 90 days after payment of loss or expense. This suit was not brought until between four and five months after such payment, but during this period the plaintiff was in the military service of the United States. If the action can be maintained there is to be judgment for the plaintiff.

<p>An erroneous statement of the evidence by counsel in argument, relating to a material issue of the case and calculated to prejudicially influence the jury, is ground for reversal.</p> <p>Case, against a physician for the death of the plaintiff’s wife. Trial by jury and verdict for the defendant.</p> <p>The plaintiff’s evidence tended to prove that the defendant who attended the decedent at child birth did not give her proper attention and treatment, and that she died from eclampsia.</p> <p>The defendant’s testimony tended to prove that he was not negligent in his care and treatment of his patient; that she was suffering from chronic Bright’s disease; and that no one could have saved her life. The plaintiff excepted to the admission and exclusion of evidence, to argument of counsel, and to the charge of the court. The argument excepted to appears in the opinion. Transferred from the December term, 1919, of the superior court by Marble, J.</p>

Action, for negligently causing the death of the plaintiff’s intestate. Trial by jury and verdict for the plaintiff. Transferred from the May term, 1920, of the superior court by Allen, J. The defendant filed motions for a nonsuit and a directed verdict; and also a motion that the verdict be set aside; all of which were denied subject to the defendant’s exception. The evidence relevant to certain of the exceptions is stated in the opinion.

Petition, by the administrator of Martha L. Haines, for advice as to who is entitled to the possession of the property that came to her under the will of her husband James H. Haines. The will is as follows: “First. I give and bequeath all my earthly possessions to my wife, Martha L. Haines, to be used according to her judgment & will.

Case, for negligence. Trial by jury and verdict for the plaintiff. The defendants excepted to the denial of their motion for a directed verdict and to certain instructions to the jury. The evidence relating to the exceptions is stated in the opinion. Transferred from the October term, 1919, of the superior court by Branch, J.

Bill of Interpleader. The plaintiffs were indebted to the defendant Smith on January 20, 1917, in the sum of $2,800, and on that date Smith assigned his claim to the defendant Thompson to secure him as surety on notes made by Smith, aggregating $3,500. October 30,1917, the defendants Fellows & Son sued Smith and summoned the plaintiffs as trustees.

<p>Action, for personal injury brought under the employers’ liability act, Laws 1911, c. 163, ss. 1, 2. Trial by jury and verdict for the defendants. Exceptions taken by the plaintiff to the introduction of evidence are stated in the opinion. Transferred from the April term, 1920, of the superior court by Branch, J.</p>

Probate Appeal. Perry A. Eaton at his death September 28, 1917, left a will executed November 5, 1915, with a codicil executed September 7, 1917, which with some changes and additions ratified and confirmed the will. Perry A. Eaton, Jr., a son of the deceased, duly appealed from the decree of the probate court sustaining and allowing the will of Perry A. Eaton, and assigned as the reasons for his appeal the mental incapacity of the testator and undue influence.

Assumpsit, to recover money lost by gambling. Trial by the court. Verdict for the plaintiff. The court permitted the plaintiff to reduce his ad damnum from two hundred to ninety-nine dollars, and denied the defendant’s motion for an immediate transfer of the case to the superior eourt. Transferred from the municipal court of Manchester by Perkins, J., on the defendant’s exception to these rulings and the denial of his motion for a directed verdict.

<p>Action, to recover damages for the burning of the plaintiff’s premises by fire negligently set by the defendant. The court upon defendant’s motion ordered a nonsuit subject to the plaintiff’s exception. A bill of exceptions was allowed at the October term, 1919, of the superior court by Kivel, C. J.</p> <p>The evidence tended to show that the plaintiff employed the defendant to set out in his field a number of trees; that it employed certain laborers to do the work whom it sent to the field for that purpose, some of whom were cigarette smokers; and that while engaged in the work one of them carelessly dropped a lighted match into the grass, which was very dry, and that this caused the fire to spread over the field, burning other trees and destroying the plaintiff’s buildings. Other relevant evidence is stated in the opinion.</p>

Quo Warranto, at the relation of the highway agents of Easton against the defendant appointed by the selectmen of Easton, with the consent and approval of the state highway commissioner, to take charge of and to do the work of improving and maintaining certain state aided highways in the town. The parties agree to any change in the form of action which may be necessary.

Bill in Equity, to recover a deposit in the defendant bank. Trial by the court and decree for George L. Fernald. The plaintiff excepted to the admission of evidence and to the decree. The facts are stated in the opinion. Transferred from the January term, 1920, of the superior court by Sawyer, J.

Case, for negligence. The plaintiff was employed as engineer in charge of the company’s power house. The company sold two old boilers, situated in the power house, to Gutterson & Gould, who were to cut up and remove the same. The plaintiff was injured by the falling of a section of the boiler casing while the process of removal by Gutterson & Gould’s servants was going on. Further facts are stated in the opinion.

<p>Under G. L., c. 183, s. 1, a married woman may make a valid contract to sell her land to her husband, may malte conveyance thereof directly to him, or may be estopped to set up technical defects in her title thereto as administratrix; a husband may acquire title to his wife’s land by prescription.</p> <p>The grantor in a deed invalid because of non-delivery is not entitled to a decree nullifying the subsequent deeds of his grantee, and the grantees therein may enforce the covenants against their grantor and any title subsequently acquired by him inures to them.</p>

<p>A boy of sixteen, employed by the defendant and of less than average mentality; while attempting to eolleet flax from under a breaker was injured by his hand coming in contact with its cylinder and rolls. On the foregoing and other evidence the questions of assumption of risk and of contributory negligence wore for the jury.</p> <p>A request for an instruction that one who puts his hand where he does not know it is safe because he does not think, is guilty of negligence was properly refused.</p> <p>Case, for negligence. Trial by jury and verdict for the plaintiff. The plaintiff, a boy of sixteen, had worked for the defendants about five weeks at the time he was injured. He was employed to run a picker, and was required to get the flax for his machine from the breaker or opener. At one end of that machine was a twenty-six-inch cylinder covered with hooks which turned toward the other end of the machine and brought the flax to five-inch rolls which turned toward each other, whence it came out between them in a sheet the width of the machine onto a plate about a foot wide and slanting downward, from which the flax dropped to the floor in a pile, in part under the machine. The small rolls and the top of the cylinder were in plain view, but when there was a considerable pile of flax on the floor a person standing at the discharging end of the machine could not see without getting under the machine how near the cylinder came to the pile of flax.</p> <p>The plaintiff, who was of less than average mentality, did not know that in doing his work he was likely to come in contact with the cylinder and he was not warned of that danger. When he came for flax at the time of the accident, the pile on the floor was as high as the machine. He stooped down, and put his right hand on the floor and reached in under the machine with his left hand, and it came in contact with the cylinder, and it carried his arm into the rolls.</p> <p>Transferred by Marble, J., from the January term, 1920, of the superior court, on the defendants’ exception to the denial of their motions for a nonsuit and a directed verdict, and to the court’s refusal to charge the jury as requested.</p>

<p>A bill of exceptions to the admission or exclusion of evidence will not be considered by the supreme court unless the evidence is made a part of the bill.</p> <p>A verdict is not set aside for an error which the course of the trial renders immaterial.</p> <p>Action, at common law, for negligently causing personal injuries to an employee. Trial by jury, and verdict for the defendants. The plaintiff filed a motion “to set aside the verdict and for a new trial on the ground that the verdict is against the law and the evidence because the jury was misled by errors in instruction and evidence admitted and excluded in the trial.” The motion was denied and the plaintiff then filed the following bill of exceptions, which was allowed at the January term, 1920, of the superior court by Allen, J.: “The plaintiff excepts to the denial of motion to set aside the verdict.”</p>

Action, of trespass for assault and battery. Trial by jury and verdict for the plaintiff. The defendant’s exceptions to the argument of plaintiff’s counsel, and to the instructions of the court, together with the evidence relevant thereto, are stated in the opinion. A bill of exceptions was allowed at the January term, 1920, of the superior court by Branch, J.

Petition, for the abatement of taxes. After the decision in Bernard v. Company, 78 N. H. 418, the verdicts were paid by the Whitefield Tanning company, the town of Whitefield and the state of New Hampshire under Laws 1917, chapter 218. When the settlement was made, Whitefield took quitclaim deeds releasing it from liability for all damages to date, as well as what might be occasioned by the future use of the tannery.

Bill in Equity, to set aside a deed on the ground it was procured by fraud. James Rogers left three daughters and one son surviving him, all of whom were witnesses. Hearing before a master, who, subject to exception, permitted the defendant on cross-examining the plaintiff and her brother, to introduce letters they had written; the defendant’s purpose being to contradict their testimony.

Case, for negligence. The plaintiff was a ring-spinner, in the defendants’ employ, and was injured while cleaning shafting. Trial by jury and verdict for the plaintiff. The defendants had accepted the provisions of chapter 163 of the Laws of 1911. The defendants excepted to the denial of their motions for a non-suit and a directed verdict, and to the argument of counsel. The facts are stated in the opinion.

<p>An invitation to ride upon the rear of a tender, given by a brakeman in violation of a rule of the railroad, places it under no obligation to operate its engine with due care for the safety of such invitee in the absence of evidence that the engineer knew or should have known of his presence thereon.</p> <p>Two Actions, of negligence for personal injuries, resulting in death in one case. The actions were tried together by jury.</p> <p>At the close of the plaintiffs’ evidence, the defendant’s motions for a nonsuit in both cases were granted, subject to the plaintiffs’ exceptions. The facts appear in the opinion. Transferred from the May term, 1920, of the superior court by Allen, J.</p>

Bill in Equity, for an injunction. Petition for habeas corpus. After judgment for the defendant in the case, Watkins v. Hustis, 79 N. H. 285, the plaintiff Watkins filed a petition for a new trial upon the ground of newly discovered evidence, upon which an order of notice was issued and duly served upon the railroad. The railroad seeks to have enjoined the caption of depositions in the proceeding brought by Watkins of which due notice had been given.

Case, for negligently causing the death of the plaintiff’s intestate. Trial by jury and verdict for the defendants. The plaintiff’s intestate, who was riding as a guest in an automobile, sustained fatal injuries in a collision between the automobile and an electric street car of the defendants, at the intersection of Allison street and Broadway in the city of Concord.

Bill in Equity, to set aside a tax deed. Heard by Kivel, C. J., who dismissed the bill and allowed the plaintiff’s bill of exceptions at the April term, 1920, of the superior court. The plaintiff’s grounds for exception, as set forth in the bill, are that the affidavit of posting the advertisement of the tax sale, required by P. S., c. 61, s. 7, was not signed by the collector; and that his account does not give the dates on which the advertisement was published.

<p>A master is liable to a stranger for the consequence of his servant’s misconduct, if he was doing what he was employed to do at the time he caused the injury complained of though not in the way expected by the master.</p> <p>Case, to recover for personal injuries received in a collision between a cart on which the plaintiff was riding and an automobile of the defendant, driven by the defendant’s servant, Joseph Jalbert, on a public highway in Jaffrey. Trial by jury and verdict for the defendant.</p> <p>The plaintiff’s evidence tended to prove that the defendant runs a livery stable and transports passengers both by team and automobile. Jalbert was experienced in driving Ford cars, of which the defendant had two, and had been hired by the defendant to work in and around the stable and to drive the Ford cars. The defendant also had a Cadillac, which was used to transport passengers, but this car was driven only by the defendant’s foreman, Leon W. Priest. The defendant and his foreman had given Jalbert express directions never to touch the Cadillac. Jalbert slept in the defendant’s stable, and it was a part of his duty to take passengers to the early morning trains. Orders were left at the office for the transportation of passengers to the early morning train, and it was Jalbert's duty to scrutinize the records and see that the passengers were carried to the railroad station. Prior to the collision he had always done this either by team or with a Ford.</p> <p>On the evening prior to the collision, Jalbert had made use of one of the defendant’s Ford cars to transport passengers, and the supply of gasoline had given out, so that Jalbert had to abandon the car about forty rods from the defendant’s stable. The other Ford car was in the garage at Peterboro and the Cadillac was the only car at the defendant’s stable. The defendant always kept an ample supply of gasoline at the stable. On the morning of the accident, Jalbert, without the knowledge of the defendant, took the Cadillac car to carry two pas-, sengers to an early train, and while he was so employed the accident occurred.</p> <p>Subject to exception, the jury were instructed that there could be no recovery unless they found that the defendant ratified Jalbert’s act. Upon inquiry by the court, the foreman stated that the verdict was based upon lack of authority. Transferred from the April term, 1920, of the superior court by Sawyer, J.</p>

<p>In the trial of an indictment for rape, the argument of counsel for the state in referring to the complainant’s child “as entitled to consideration” was held not to be objectionable as an appeal on the ground of sympathy but to urge upon the jury the seriousness of the offence;- whether the argument was calculated under the circumstances to render the trial unfair was a question for the superior court.</p> <p>An assertion of the respondent’s guilt by counsel for the state as a fact, but not as a fact within counsel’s knowledge, is unexceptionable.</p> <p>An objection to argument is one for the presiding justice to pass upon in the first instance and it must be made known to him.</p> <p>The correct procedure is for counsel to object to an argument and after an adverse ruling is rendered, to except thereto.</p> <p>Indictment, under Public Statutes, c. 278, s. 15, as amended byLaws 1897, c. 35. Trial by jury and verdict of guilty.</p> <p>In a question asked in cross-examination of a witness called by the defendant, reference was made to testimony that the defendant spanked girls when in his store, and the defendant excepted.</p> <p>In arguing the conduct of the complainant’s mother, the attorney-general said: “Suppose she did know it? I argue to you that she did not. It often times happens, if you please, that the people who are most interested get the information last, especially about these family matters, and I argue to you, as she says, that she told you the truth about it, and that she did not know Marion’s condition. But supposing she did? That is not a defence in this case, and that is not any excuse for the guilty man, either. Supposing her mother did try to cover it up; what of it? Is that any reason why society should not be protected, and why the people of New Hampshire have not a right to go to twelve men and ask that a man guilty of this crime be convicted and later go to the court and ask that he be punished?” “ I except to the remarks of counsel.”</p> <p>Further exceptions to argument were taken as follows: “What is a married man fifty years old going through that kind of performance for, gentlemen? And how long in the town of Newport and the county of Sullivan can a man do that and still maintain his reputation in the Sunday school and the Epworth League?” “Exception to these remarks.”</p> <p>“Now they criticized Marion because she did not say down to the police court that Ketchen told her not to tell. Well, she wasn’t asked, gentlemen, she wasn’t asked, and so what that comes to is that the counsel for the defense criticized this thirteen year old girl because of the fact that she didn’t volunteer in a judicial proceeding information which she wasn’t inquired of about.” “Exception to that, as not being in evidence.” “It is argument. If it is not good for anything, don’t pay any attention to it.”</p> <p>“There is another individual here, brought into this world, who has got to go down through life without a name, a member of society, and a citizen of this or some other state, if he lives. He is entitled to some consideration at your hands, not as a matter of sympathy, but because of the fact, gentlemen, that you sit there charged with a solemn duty under your oath to mete out justice.” “Exception to the statement of counsel.” “What do you mean?” “I say this baby isn’t entitled to consideration.” “He is entitled to such consideration as you and I, or any other citizen of this state are entitled to, and you are expected to give him that consideration as you would give him or any other citizen of the state, when you sit there charged with the duty, to do justice between the people of New Hampshire on the one hand and this respondent at the bar on the other.” Transferred from the May term, 1920, of the superior court by Allen, J.</p>

<p>Trespass, guare clausum. The alleged trespass consisted in the setting of certain posts to support an awning erected by the defendant. The only question in controversy was the boundary line between the parties. The action was referred to three referees, Hazen, Richardson and Gile. Richardson was a surveyor who had made surveys apd run out the line as claimed by the defendant', and drawn plans to sustain his survey. Gile was also a surveyor who had performed similar services for the plaintiff. Hazen understood he was to act as single referee and to pass upon the methods used and the results obtained by his associate referees. He accordingly after hearing made report of his findings. Upon motion, this report was recommitted with directions to report (1) whether either or both of the other referees agreed thereto, with the direction that the referee or referees agreeing thereto should sign the same, and for other findings. After further hearing Hazen and Gile filed a report in which they found for the plaintiff and assessed damages at $10; they also found upon incompetent evidence that the Chutter block was built by Mrs. Chutter’s predecessor in title but that they could not find upon the evidence that it was built upon what was agreed between the parties as the true line between them. Richardson also filed a report as referee, finding for the defendant.</p> <p>Thereupon the defendant moved to set aside the report of the two, Hazen and Gile, because it was against the weight of the evidence and because the finding as to the erection of the Chutter block was made upon incompetent evidence. This motion was denied and judgment ordered for the plaintiff upon the majority report, and the defendant excepted. Transferred by Kivel, C. J., from the January term, 1920, of the superior court.</p>

<p>In trespass q. c. /., for a continued occupation of the plaintiff’s premises by the operation of a lumber mill, the expense which the defendant would have incurred by moving the mill to another site during the operation is not an element of damages.</p> <p>•Trespass, q. c. /., being the same case heretofore reported in 78 N. H. 160, 571; Subsequently to the last transfer of the case to this court, the issue of damages was tried by the court with a verdict of $750.</p> <p>Special findings were made at the request of the parties. The defendant occupied the locus for about four years and until it completed what sawing it did in that locality. If it had been obliged to move and reset its mill during that period it would have had to expend $5,000 on the operation. The plaintiff claimed this item, with interest from the time the mill was set up.</p> <p>The plaintiff moved to set the verdict aside because it was contrary to the law and the evidence; because the damages were inadequate and the assessment inconsistent with the special findings; because the law was erroneously applied to the facts; because the court fell into a plain mistake in dealing with the question of fact, and because justice required a new trial. The motion was denied, subject to exception. Transferred from the January term, 1919, of the superior court by Allen, J.</p>

Probate Appeal. The appellants’ testator, William H. Jaques, in 1916 filed in the probate court an account as executor of the will of Elizabeth H. Jaques.

Case, for personal injuries. Trial by jury before Young, J. Verdict for the plaintiff. The plaintiff was injured while employed by the Channel Decorating Company by coming in contact with one of the defendants ’ wires. The citizens of Derry and Londonderry associated themselves together in 1918 for the purpose of celebrating the 200th anniversary of the settlement of the town of Londonderry. Money was voted for this purpose by the two towns and contributed by individuals.

Writ of Entry. Elizabeth Mace, who died in 1894, devised the demanded premises to her two daughters, Loener and Nellie. Loener married Robert T. Batchelder and died intestate in 1914, leaving Robert and a son, Jabez, surviving her. Later, Nellie adopted Jabez and Robert conveyed his interest in the demanded premises to her. Nellie died in 1919, leaving a will by which she gave the land in question to Jabez. Jabez died soon after, under age.

Petition, for an injunction, to restrain the defendant from completing the extension of a bay-window from the second story to the ground, because such extension would encumber a highway. The extent of the highway was in issue. No laying out was shown, but it appeared that the public had traveled over the ground below the existing bay-window for over thirty years. The proposed extension would not unreasonably interfere with public travel.

Assumpsit, to recover an amount equal to the sum the county paid Charles Pinkham for the care, etc., of Cox’s minor son. Trial by jury and verdict for the plaintiff. The plaintiff claimed that the defendant in consideration of the boy’s services, agreed to support and care for the boy until he should have completed two years in the academy at Northwood. Before the expiration of that period the boy was taken ill and died.

Case, for negligence under the employers’ liability statute. Trial by jury and verdict for the plaintiff. The plaintiff, who was employed by the defendants to run their board-saw, was struck in the eye by a piece of wood which came from the saw. It was the duty of the man they employed to take away the boards, not to allow anything to come in contact with the saw, but he permitted small slabs to accumulate near it and occasionally struck it with a board.

Motion, to bring forward a decree in a libel for a divorce for extreme cruelty. The court heard the motion at the October term, 1918, and made the following decree: “Divorce for extreme cruelty. Care, custody, education, and earnings of minor child, Eugene Osborn LeBeau, decreed to the plaintiff.

Assumpsit, to recover the value of a case of woollen goods shipped by the Amoskeag Manufacturing Company over the defendant’s railroad to Philadelphia, and which arrived in that place over the Pennsylvania railroad. There was a trial by the court and verdict for the defendant, to which the plaintiff excepted. Transferred from the January term, 1920, of the superior court by Kivel, C. J.

Assumpsit, for goods sold. Trial by jury and verdict for the defendant. The plaintiff put in evidence the deposition of one Greet. Subject to exception the defendants upon proof of Greet’s signature were permitted to introduce as evidence a statement purporting to be signed by him which they claimed contradicted the deposition in a material matter. Transferred from the March term, 1920, of the superior court by Marble, J.

<p>Unreasonable interference with the plaintiff’s business by his striking employees may be enjoined.</p> <p>Where upon the transfer of an exception to an order granting an injunction, the injunction itself is not transferred, the only question is whether any injunction should be issued, and the question whether the injunction as issued should be modified will not be considered.</p>

Case, for causing the death of the plaintiff’s intestate. Trial by jury and verdict for the plaintiff. The intestate left North Stratford in an automobile on the night of December 28, 1918, to visit a patient. The road was fairly good to the Jonah place, some four hundred feet north of where the accident happened. From there on, the middle of the road was rough and icy, but the right or westerly side of the road was free from ice and comparatively smooth.

<p>In an action upon the employers’ liability act, evidence that the plaintiff was injured by falling down on a floor rendered slippery by sprinkling with an unnecessary quantity of water warranted a finding by the jury that the defendant had not furnished a reasonably safe work-place.</p> <p>An erroneous statement of law by counsel in argument is presumed, in the absence of evidence, to have been corrected by instructions.</p> <p>Case, under chapter 163, Laws 1911, to recover for personal injuries. Trial by jury and verdict for the plaintiff. The plaintiff was employed as an assistant forelady in the stitching room of the defendants; and while engaged in such employment she slipped upon the floor and fell, injuring her left hip. The defendants' motions for a nonsuit and a directed verdict were denied, subject to their exceptions. The defendants also excepted to argument of plaintiff’s counsel. Transferred from the January term, 1920, of the superior court by Sawyer, J. The facts and evidence relevant to the exceptions are stated in the opinion.</p>

<p>Under P. S., c. 40, s. '3, a gift to a town for a specific public purpose is valid; and a gift to a town without specifying any particular purpose is intended for any of the uses for which the donee is authorized to hold property.</p> <p>Motion. At the May session of the court, Benjamin W. Griffiths, the testator’s heir-at-law, filed a motion setting forth that immediately after the filing of the opinion, ante, 36, he applied to the superior court for a trial to determine the sum which would be necessary to fully execute the trust created by the will, which trial the superior court, Marble, J., refused. Tucker v. Lowe, 79 N. H. 259. The motion asks that the case be recommitted to the superior court for the trial and determination of this question of fact and that the case be amended by such findings as may be made, and be further considered by this court.</p>

Bill in Equity. The defendant who was injured while employed by the plaintiffs sued them, and they filed a plea alleging that they had accepted the provisions of Laws 1911, c. 163, and that he had also accepted the provisions of the act. They also filed this bill alleging the same facts and praying that the defendant’s compensation under the act be determined and that he be enjoined from prosecuting his action at law.

Assumpsit, to recover the third instalment of $25,000, due April 1, 1919, under the contract which was involved in the former suit between the same parties. 79 N. H. 295.

Case, for negligence. Trial by jury and verdict for tbe plaintiff. Albert Moore was employed in tbe defendant’s factory. Tbe defendant bad accepted tbe provisions of Laws 1911, c. 163, and tbe case was tried at common law. Albert was eighteen years old at the time of the accident. He bad bad but little experience with machinery and was put to work upon a stamping machine, cutting out small pieces of brass.

Case, for deceit to recover $312.50 paid by the plaintiffs to the Manchester Farm Agency as the commission for effecting the sale of the plaintiffs’ farm in Pembroke to the defendants. Trial by jury and verdict for the plaintiffs. At the close of the plaintiffs’ case and at the close of the evidence, the defendants moved for a nonsuit and for a directed verdict. The motions were denied, and the defendants excepted.

<p>A surviving partner may purchase the interest of a deceased partner; but if the purchase is attacked, the burden is on the surviving partner to show that the transaction was fair and reasonable in every respect.</p> <p>A judgment is conclusive between the parties as to matter upon which the plaintiff proceeds by his action and the defendant controverts by his pleadings.</p>

<p>P. S., c. 225, s. 1 does not limit the right to use the deposition of a witness to the party who takes it; but permits either party to use the deposition unless the other procures the attendance of the deponent at the trial.</p> <p>The argument of counsel, “bear this in mind [the deceased] knew this rule . . . [referring to a rule of the defendant railroad] he must have known the rule . . . he had been working for the road five years,” is warranted though there was no evidence that the deceased had a rule-book or that he had ever seen the rule.</p> <p>Case, for causing the death of plaintiff’s intestate. Trial by jury and verdict for defendant. The deceased was working for the defendant in the Woodsville yard as a car inspector on the night of the accident, and either was, or had been, at work on two interstate trains, one of which was on track 1, the other on track 2. He “cut the hose” of an express car on track 2 and there was evidence that he crossed over to track 3 (whereon he was killed) to uncouple the engine from the car.</p> <p>This was the last time he was seen alive. There was evidence from which it could be found that after releasing the express car he crossed over to the heating plant on the east side of the yard and then started to go to the station which was on the west side ■of the yard and was struck by the express car on track 3. Part of the materials he used were kept in the heating plant and part in the station.</p> <p>The defendant’s employees who were working in the Woodsville yard when the accident happened were not in court when the case was tried, but the plaintiff had caused their depositions to be taken and the court permitted the defendant to use them. The declaration contained two counts: one under the federal employers’ liability act (35 U. S. Stat. 65); the other under the state statute (Laws 1911, c. 163, s. 1). The court ordered a nonsuit on the count based on c. 163, s. 1, and instructed the jury as to what the plaintiff must prove to recover under the federal act. Transferred by Allen, J., from the September term, 1920, of the superior court on the plaintiff’s exception to these rulings and to remarks of defendant’s counsel.</p>

Case, for interference with the plaintiff’s rights by sundry acts and words, being the same action heretofore reported. 79 N. H. 371. The defendants are the Grand Trunk Railway Company, the Central Vermont Railway Company, Edson J. Chamberlin, Alfred W. Smithers and Edward C. Smith. The individual defendants are non-residents. After the former decision, the trustees’ disclosures were taken and showed large sums due.

<p>Under P. S., c. 209, s. 25, a juror is not disqualified by the fact that in an action pending in the court against him, counsel for the respondent is counsel for the plaintiff.</p> <p>A respondent cannot insist upon a ground for his exception, which he did not specify at the trial, nor then call to the court’s attention.</p> <p>An objection which may be cured at the time by further evidence or action is waived, unless the ground of the objection is specifically stated.</p> <p>Indictment, for manslaughter for negligently causing the death of certain occupants of an automobile alleged by the state to be in the custody and control of the respondent. Trial by jury and verdict of guilty in the second degree.</p> <p>After the drawing of the jury had been completed, and after the respondent had exhausted all his peremptory challenges, but before the jury was sworn, counsel for the respondent brought to the attention of the court the fact that there was an action pending against one of the jurors, in which Doyle & Doyle were counsel for the plaintiff. Jeremiah J. Doyle, one of the respondent’s counsel, is a member of this firm, but it appeared that he had no knowledge of the suit until all the respondent’s challenges had been exhausted.</p> <p>Upon these facts the respondent moved that the juror be excused. The court ruled that no disqualification had been shown and denied the motion. To this ruling the respondent excepted.</p> <p>Exceptions were also taken by the respondent to the argument of the solicitor, which are set forth in the opinion.</p>

Bill in Equity, to determine the amount of compensation due plaintiff under the workmen’s compensation act. Trial by the court. Decree for the plaintiff. The plaintiff was injured, while in the employ of the defendant, on August 8, 1919. The accident arose out of and in the course of the plaintiff’s employment, and was not caused in part or in whole by any serious or wilful misconduct on her part.

Action, for slander. Trial by jury and verdict for the plaintiff. Proof by the plaintiff of actual malice on defendant’s part was necessary. As tending to show it, evidence was admitted that other litigation between the parties, brought at about the time the slander was uttered, was determined in the present plaintiff’s favor. The evidence was admitted in connection with other evidence tending to show the malicious character of the litigation.

Writs of Entry. The suit against Susie J. Goodrich is to recover possession of three farms situated in Nottingham. In the action against Randall, the plaintiff seeks to recover the possession of the standing growth on one of the farms, known as the Chase farm. The plaintiff claims to be entitled to the possession of these farms, as trustee under the wills of Nathan G. T. Goodrich and his son, George W. Goodrich.

Petition, by Gladys M. Salta of Lawrence, Massachusetts, against James N. Salta of Laconia.

Bill in Equity, to obtain permission for the removal of the remains of the plaintiff’s first wife from the place of their original interment, and to restrain the defendant, the decedent’s daughter by a former marriage, from interfering therewith. Trial by the court. The decedent was buried in a lot controlled by the defendant, known as the Bruce lot.

Petition, for instructions by the trustee under the will of Joshua B. Merrill who died July 4, 1894, leaving a will dated August 19, 1891. Two sons, Frank B. and Samuel F., three grandchildren, two (Joshua B. Merrill, 2d. born October 17, 1881 and Ellen Merrill born August 16, 1874 children of a third son Lyman, who died in 1885), and Ogarita daughter of Frank B. born February 6, 1883, were living at the testator’s decease.

<p>If an employer has accepted the provisions of Laws 1911, c. 163, the employee assumes the risk of all dangers, incident to the service, of which he either knew or would have known if he had exercised ordinary care.</p> <p>Case, for negligence. Trial by jury and verdict for the plaintiff. The plaintiff was injured by a splinter which came from the saw on which he worked striking him in the eye. Transferred by Branch, J., from the September term, 1920, of the superior court on the defendants’ exception to the denial of their motion for a directed verdict. The evidence relevant to the motion is stated in the opinion.</p>

Assumpsit, to recover the price of an automobile ordered on behalf of the city by its police commission. Trial by jury and verdict for the plaintiff. No appropriation for this purpose had been made by the city government, and the bill approved by the commission was not approved by the finance committee of the city government or by the mayor.

<p>One who acts upon a false representation made to induce him to change his position may recover in case for negligence the damages he sustains, if the person making the representation ought to have known it was false.</p> <p>Representations by an expert on power to one not having equal knowledge as to the amount of energy which standard makes of motors and engines will develop are not matter of opinion or “sellers’ talle” but are statements of facts.</p> <p>A negligent misrepresentation is actionable if it is the proximate cause of the position taken in reliance thereon, though not the sole inducement thereto. If a misrepresentation is negligently made, or negligently allowed to stand, the party injured by relying upon it must show that he acted as a reasonably prudent man in so doing.</p> <p>A stipulation in a contract of sale that the vendee may exchange the article is not a bar to an action for negligent misrepresentation; and his exercise of such right with knowledge of the misrepresentation is not a waiver of an action therefor.</p> <p>Case, for negligent and false representations with respect to the sale of an engine. Defendant’s motions for a nonsuit and for a directed verdict were denied, subject to exceptions. Transferred from the January term, 1921, of the superior court by Sawyer, J.</p> <p>The plaintiff signed the following order: “To Brackett, Shaw & Bunt Co., Somersworth, N. H. You will please ship by freight to Manchester, N. H., to be delivered f. o. b. cars factory about the 7 day of May, 1918, one of your 45 H. P. Davis Engines. Saw mill pattern. I am to have benefit of car rate of freight from factory to Somersworth. You are to allow exchange for 10 ds. for a 65 H. P., I to have full allowance if I do not damage engine beyond usual wear. In case of exchge. I am to pay all freight costs on both engines. . . . for which I agree to pay $1,475.00 as follows: At the time of delivery, Cash . . . $400.00 . . .” The further material facts appear in the opinion.</p>

<p>The questions whether a railroad was negligent in not providing a flagman or automatic bell at a highway grade crossing and whether the driver of a motor truck injured thereon was free from fault were properly submitted to the jury.</p> <p>Case, for damaging a motor truck. Trial by jury and verdict for the plaintiffs. The accident happened on a level crossing on Depot Street, in Ashland. The freight house and cars on the tracks in the Ashland yard obstructed the view to the north to such an extent that the men in charge of the truck, after they passed a point sixty or more feet from the crossing, could not see a train approaching from the north until the front wheels of the truck were on the crossing.</p> <p>The crossing whistle was sounded, but the bell was not rung and there was no flagman or automatic bell to warn travelers of the approach of a train. Other evidence relevant to the exceptions is stated in the opinion.</p> <p>Transferred by Parsons, C. J., from the May term, 1921, of the superior court on the defendants’ exceptions to the denial of their motion for a directed verdict, and to evidence.</p>

Case, to recover damages under Laws 1893, c. 59, s. 1. The facts are stated in the opinion. The defendant’s motion for a nonsuit was denied, subject to exception. Transferred from the April term, 1921, of the superior court by Marble, J.

<p>A county is entitled to bail forfeited for failure to prosecute an appeal from a conviction by a municipal court.</p> <p>If parties agree that the decision of the superior court shall be final, an exception to such finding will be overruled by the supreme court.</p> <p>Debt, to enforce a forfeiture. One Maloney was convicted by the municipal court of Laconia and appealed, depositing cash bail. He failed to enter his appeal, and his recognizance was forfeited. The parties agreed as to the facts and that the decision of the superior court should be final.</p> <p>The court ordered judgment for the plaintiff and the defendant excepted. A bill of exceptions was allowed by Kivel, C. J., at the March term, 1921, of the superior court.</p>

Case, to recover for an injury caused by the negligence of a fellow-employee. Trial by jury and verdict for the plaintiff. Transferred by Sawyer, J., from the September term, 1920, of the superior court, on the defendants’ exceptions to the denial of their motion for a nonsuit and to remarks of plaintiff’s counsel. The facts and evidence relevant to the exceptions are stated in the opinion.

<p>In an action by an inexperienced employee, under the employers’ liability act (Laws 1911, c. 163), for injuries received in taking down a carding machine, certain evidence warranted a submission to the jury of the questions of the failure to give the plaintiff adequate instructions, of contributory negligence, of the scope of the plaintiff’s employment and of his assumption of the risk.</p>

<p>Case, for negligence. Trial by jury and verdict for the plaintiff. This is the same action heretofore reported (79 N. H. 336) and the essential facts as to liability appeared as at the first trial. Evidence of what was done by the defendants in the fall of 1913 was excepted to by the defendants, upon the ground that when or how the condition that existed at the time of the accident was created was immaterial. There were also exceptions to the refusal to give requested instructions to the jury, and to the closing argument for the plaintiff. These are stated in the opinion. Transferred from the January term, 1921, of the superior court by Branch, J.</p>

Case, to recover damages for injuries claimed to have been sustained by being struck by an automobile carelessly operated by the defendant. Trial by jury and verdict for the defendant. The defendant denied that the plaintiff was struck by his automobile, and also introduced evidence tending to show that the plaintiff, if struck, was not injured. Exception was taken by the plaintiff to the exclusion of evidence. The facts relevant to the exception appear in the opinion.

<p>Bill of Exceptions, allowed by Kivel, C. J., at the April term, 1920, of the superior court.</p> <p>The plaintiff brought an action at law to recover damages for the defendant’s failure to fully perform a written contract of hire for the plaintiff’s “services as Superintendent of our entire business, including foundry, pattern shop and machine shop.” It appeared that the parties first negotiated concerning a profit-sharing agreement. This plan was not carried out, and a few weeks later the contract in question was made. The defendant offered to show that at the earlier conferences the plaintift made false statements as to his knowledge and ability to conduct the business. The evidence was excluded, subject to exception.</p>

. Assumpsit, to recover a commission for the sale of a milking machine. Trial by jury. At the close of the evidence each side moved for a directed verdict. The defendants’ motion was denied subject to exception. The plaintiff’s motion was granted subject to the defendants’ exception, on the plaintiff’s agreement that, if the defendants’ exception to the granting of the plaintiff’s motion is sustained, there shall be judgment for the defendants.

' Information, in the nature of quo warranto praying judgment of ouster against town officers chosen at the annual meeting of Gorham, March, 1921. Held: at which a list of candidates was adopted which with the exception of those who declined the nomination was certified to the town clerk and printed on the ballot under the heading “Independent.” No votes had at any previous election been cast at Gorham under the name Independent party.

Bill in Equity, by two resident tax payers of the city of Berlin against the officers of said city, viz., mayor and members of the council, the treasurer and members of the board of education and members of a joint committee appointed to act on the matter of erecting a new high school building.

Case, for causing the death of the plaintiff’s intestate. Trial by jury and verdict for the plaintiff. At the time the accident happened, the defendants, who are shipbuilders, were finishing a ship tied up to their wharf and employed the intestate, a boy of fourteen, as a timekeeper and water-boy. His work took him to all parts of the ship.

Information, in the nature of quo warranto, to determine the rights of the defendants to certain public offices in Rochester. The petition was filed January 11, 1921. At the biennial election of November, 1920, Meader was elected a representative to the legislature and a supervisor of the check list. At the time of his election to these offices he was a member of the city council of Rochester. He was holding all of these offices when this bill was filed.

<p>In an action upon P. S., c. 191, ss. 8-13, for negligently causing death, the amount which the intestate could have earned for his estate is what would remain after deducting the necessary expense of his own living.</p> <p>Upon a general exception to a charge, the question whether it was susceptible of a different construction will not be considered.</p>

<p>In an action at common law by a servant against his master for injuries received in the work, the burden of proving non-assumption of the risk is upon the employee.</p>

Bill in FjQUITY, to recover compensation under Laws 1911, c. .163. Trial by tlie court. The plaintiff lost the sight of his right eye by reason of injuries received in the course of his employment by the defendant. Four days after the accident he was able to return to his work for the defendant and to earn the wages theretofore paid him for that work.

Case, for negligence, trial by jury and verdict for the plaintiff. The accident happened on December 9, 1918, on Elm street in Man-Chester and resulted from a collision between the plaintiff, who was on foot, and a light delivery truck owned by the defendants and operated by George S. Dodge, son of the senior partner of the defendant firm of Dodge & Laing. The defendants denied that the driver was acting as their employee at the time of the accident.

Case, for negligence. Trial by jury and verdict for the defendant. The plaintiff was employed by the defendant in the construction of a cottage at Hampton Beach, and was injured by the collapse of a staging upon which he was working. Exceptions were taken by the plaintiff to the argument of defendant’s counsel, which sufficiently appear in the opinion. Transferred from the January term, 1921, of the superior court by Branch, J.

<p>Laws 1917, c. 185, s. 6, forbidding aliens to have firearms in their possession without a permit is not unconstitutional as an unequal law under the fourteenth amendment.</p> <p>Under P. S., c. 278, s. 7, to constitute manslaughter in the first degree “by a person bearing any deadly weapon” it is not sufficient that the killing results merely from the use of the dangerous weapon but such person must be a conscious agent in discharging it, — the unlawful act must be the legal cause and not simply the occasion of the homicide.</p> <p>An objection to a juror on the ground of preconceived opinion is a challenge to the favor; whether he is indifferent is a question of fact for the trial court, whose finding is unexceptionable when based on any competent evidence.</p> <p>An objection to hearsay is waived, if the objecting party introduces evidence establishing the same fact.</p> <p>The order in which evidence should bo received at the trial lies in the discretion of the trial justice.</p> <p>Though exceptions to a charge are ordinarily waived unless taken and reduced to writing before the jury retires, the constitutionality of a statute authorizing punishment for crime may be questioned at any stage of the proceedings. Upon trial of an indictment for murder, evidence of the unlawful possession of a gun (Laws 1917, c. 185) may be material upon the question of an intent to intimidate others, irrespective of the issue as to the degree of the crime.</p> <p>Indictment eor Murder. Trial by jury and verdict of guilty of manslaughter in the first degree. At the January term, 1921, of the superior court a bill of exceptions was allowed by Branch, J., upon respondent’s exceptions to the exclusion of a juror, the admission and exclusion of evidence, the charge to the jury, and to a ruling sustaining the constitutionality of ss. 6, 7, c. 185, Laws of 1917. The facts are stated in the opinion.</p>

<p>In an action upon the federal employers’ liability act (35 U. S. Stat. 65), certain evidence warranted a finding that the plaintiff was knocked from an engine-step by an accumulation of ice or snow near the track, and that this obstruction was caused by shovelers carelessly clearing the snow from adjoining tracks, or by their negligently failing to remove it.</p> <p>Under the federal statute, assumption of risk is a defence, and the burden of proof rests with the defendant.</p> <p>Under the federal statute, contributory negligence is not a defence but is matter for reduction of damages.</p> <p>Whether a verdict is against the weight of the evidence is a question for the trial court, and cannot be determined in the supreme court unless upon the evidence only one conclusion is reasonable.</p> <p>On the issue of the amount of damages for physical injuries, the fact is relevant that the plaintiff’s lack of education was due to his parents’ financial condition rather than to his natural stupidity or indolence; and the question whether the-plaintiff could earn a living in a clerical capacity or only by active employment-such as he had been engaged in, is competent on the same issue.</p> <p>Whether an issue of fact is so presented in argument as to excite prejudice and render the trial unfair, is in the first instance at least a question for the trial’ court; and, in the absence of objection, ruling and exception, is not properly cognizable in the supreme court.</p>

<p>The failure of a master to inspect an appliance furnished for his servant’s use does not constitute actionable negligence, if the particular defect which caused the servant’s injury was not reasonably to be anticipated and was not known by the master in season to prevent the accident.</p> <p>Case, for negligence. Trial by jury and verdict for the plaintiff. The defendants were subject to, and had accepted the provisions of Laws 1911, c. 163.</p> <p>The plaintiff claimed that he was injured by being cut upon a rusty nail protruding from a wooden box. The facts appear in the opinion.</p> <p>The defendants’ motion for a nonsuit was denied subject to exception. Transferred from the February term, 1921, of the superior court by Marble, J.</p>

Assumpsit, for money had and received. Trial by the court and verdict for the plaintiff. The sums sought to be recovered were loaned by the plaintiff upon notes signed by “the Winnipesaukee Company.” The only parties interested were the defendants Boring, McDonald and Yeaton. McDonald made defence and the others were defaulted.

<p>P. S., c. 141, s. 10, as amended by Laws 1905, c. 41 does not create a lien entitled to a preference over a prior mortgage; but creates a lien on materials furnished for the erection or repair of a house, etc. and upon the house, etc. itself even though such materials have not become a part of the real estate at the time the attachment to secure the hen is made.</p> <p>Though the hen of a mortgage (not to secure future advances), given prior to work done and materials furnished, attaches at the time various sums are advanced and not at the time the mortgage is recorded, a subsequent henor who receives payment from money advanced by the mortgagee subsequent to the work done or materials furnished cannot redeem without payment thereof; and the same preference exists in favor of such advancement as against another and subsequent henor whose right is acquired prior to such advancement and payment.</p> <p>Assumpsit. Two actions to enforce liens against a house owned by the Brittons and mortgaged by them to the defendant bank. The mortgage was made July 8 and recorded July 10, 1916, to secure the payment of a note for $6600. The defendant bank advanced $5400 at the time the mortgage was made; $200, October 4, 1916, and the balance on November 25, 1916.</p> <p>Beginning in August, 1916, Virgin did work and furnished materials in repairing the house to the amount of $2310.16 and has been paid $906.50, leaving $1403.66 and interest from December 3, 1916, still due him. Nine hundred dollars of the sum paid him came from the money advanced by the bank to the Brittons, November 25, 1916.</p> <p>Beginning October 21, 1916, Morgan did work and furnished materials in repairing the house for which there is due him the sum of $698.07, and interest from December 1, 1916.</p> <p>The question of the priority of the rights of the parties in and to the house was transferred by Sawyer, J., from the October term, 1920, of the superior court, without a ruling.</p>

Bill in Equity, filed November 20, 1920, for tax abatement, with petition for injunction against the collection of the tax, upon which a temporary restraining order was issued January 22, 1921.

<p>Whether under the statute of highways the notice required by P. S., c. 76, s. 7, describes with sufficient certainty the place where an injury was received, is a question of fact for the trial court; and its finding, if supported by competent evidence, will not be reviewed.</p> <p>Case, for personal injuries under P. S., c. 76 as amended by c. 59, Laws 1893. Trial by jury and verdict for the plaintiff. The defendant excepted to the finding of the court that the statement filed by the plaintiff under P. S., c. 76, s. 7, was sufficient, and to the denial of its motions for a nonsuit and for a directed verdict in its favor. Transferred from the April term, 1921, of the superior court by Allen, J. The facts relevant to the exception appear in the opinion.</p>

<p>A municipality is liable for the flooding of premises by reason of a defective; sewer. Notice to a municipality that its sewer system was insufficient at the place where the flooding occurred is relevant on the issue of liability for the nuisance.</p> <p>Case, for negligence. Trial by jury and verdict for the plaintiff. The plaintiff’s evidence tended to prove that the city negligently maintained an insufficient sewer, whereby her premises were flooded. The defendant’s motions for a nonsuit and for a directed verdict were denied, subject to exception. The defendant also excepted to the admission of evidence that before the injury was done it had been advised that the sewer was insufficient. Transferred from the April term, 1922, of the superior court by Allen, J.</p>

This is the same case reported in 79 N. H. 311. Trial by jury and verdict for the plaintiff. Transferred by Kivel, C. J., from the May term, 1920, of the superior court' on defendant’s exception to the denial of its motions for a nonsuit and a directed verdict on the ground that the plaintiff was guilty of contributory negligence as a matter of law. The facts appear in the opinion.

<p>Case, for negligence. Trial by jury and verdict for the plaintiff. The place in which the plaintiff usually stood while doing his work was on the west side of a line of live rolls running north and south through the defendants’ sawmill. The rolls were driven by a shaft which ran parallel with and at right angles to the axes of the rolls and was connected with them by bevel gears, one part of each gear being attached to the shaft, the other to a roll. The rolls were controlled by a man who worked on the resaw machine and would turn in either direction. The gear case intended to cover one of the gears near where the plaintiff worked was so broken as to expose more than half of the gear attached to the shaft. When the rolls turned toward the south (as they did about one-fourth of the time), the gear turned toward the broken gear case. There was a line of dead rolls just west of this gear and a few feet from it which led to the edger and a set of skids just south of it which were attached to the live roll case. It was the duty of one of the defendants’ employees to throw boards that came from the resaw machine over the live rolls and onto these skids. Sometimes the boards would strike on the skids and sometimes somewhere else, and it was the plaintiff’s duty to take them wherever he found them and put them on the dead rolls. The plaintiff had been called to another part of the mill, just previous to the accident, and when he returned there was an accumulation of boards on the skids and one on the uncovered gear. He reached for this board with his left hand without thinking of the gear and his glove caught in the gear and drew his hand against the broken gear case.</p> <p>Transferred by Kivel, C. J., from the May term, 1919, of the superior court on the defendants’ exceptions to the denial of their motions for a nonsuit and a directed verdict.</p>

Case, for alienating the affections of the plaintiff’s wife. Trial by jury and verdict for the plaintiff. The defendant’s motions for a nonsuit and directed verdict were denied, subject to exception. The defendant also excepted to the admission of evidence and to argument of counsel. Transferred from the September term, 1920, of the superior court by Marble, J.

Bill in Equity, for an accounting. The plaintiff as executor of Mary L. Patten sought to charge the defendant upon sundry notes signed by him and payable to the deceased.