diff --git a/nh/1047555.json b/nh/1047555.json new file mode 100644 index 0000000000000000000000000000000000000000..2d3980edd1df89c37a7a92fe9f2170b9ade3322c --- /dev/null +++ b/nh/1047555.json @@ -0,0 +1 @@ +"{\"id\": \"1047555\", \"name\": \"Annan v. Baker & a.\", \"name_abbreviation\": \"Annan v. Baker\", \"decision_date\": \"1870-01\", \"docket_number\": \"\", \"first_page\": 161, \"last_page\": \"173\", \"citations\": \"49 N.H. 161\", \"volume\": \"49\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Supreme Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-10T23:27:23.860017+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Annan v. Baker & a.\", \"head_matter\": \"Annan v. Baker & a.\\nWhere land was sold, for the non payment of the public taxes by the collector, on the fourth day of May, A. D. 1865, and. the collector gave his deed of the same to the purchaser, on the 4th day of May, A. D. 1866, held that one year for the redemption of the land sold had not expired, and that the deed was given prematurely.\\nThe court of chancery can only give relief, where it becomes necessary to amend or reform a description of and embraced in a deed.\\nWhere two definite connecting lines are given, running at right angles, or nearly so, and also the quantity of laud to be conveyed, such land can be locat- . ed with due certainty, by running equi-distant lines from the point of their intersection, so far, as to embrace the required, or given quantity of land.\\nA mere sale of land, by a collector, without a deed, gives the purchaser no col- or of title.\\nTbis case is trespass by John G. Annan against Daniel S. Baker & a.; for breaking and entering plaintiff\\u2019s close in Holderness, and cutting grass and carrying away hay, and converting same to defendants use, on the 13th day of July 1866.\\nPlaintiff claimed title to the land in question, by virtue of a sale of the same to him by one Plodge as collector of taxes for the town of Holderness, for the year 1864, for the taxes assessed that year in said town against Daniel S. Baker one of said defendants. The amount of tax assessed against said Daniel S. Baker for the year 1864 was, as follows: state, county, town and school tax, $41.18, school house tax, ninety-five cents.\\nThis tax was assessed upon a farm, a horse, five cattle and eight sheep ; and a part of the same had been paid, to wit enough to cover all the assessment upon said Baker\\u2019s poll, and upon all the stock, and leaving due only the assessment upon the farm. This balance, to pay which the land in question was sold, was as follows : \\u201c state, county, town and school tax, $30.98, school house, sixty-nine cents.\\nAt the annual town meeting in March, 1864, Annan, Smith, and Hodge were duly chosen and qualified as selectmen of Holderness for the ensuing year, who assessed the taxes in due season. At said town meeting, the town duly voted to raise the sum of $5000, as money tax, to defray town charges the current year. Also, \\u201cVoted, to raise thirty per cent in addition to what we now raise by law, in support of schools the ensuing year.\\u201d Under the last vote the selectmen ascertained the amount which the law required them to raise for schools, added thirty per cent, thereon, to that amount, and assessed their school tax, to cover that total sum.\\nThe collector\\u2019s appointment was made in writing to said Hodge, one of the selectmen and was signed by the other two selectmen. The appointment was dated April 13th, 1864. And the said Hodge\\u2019s bond as collector was not approved, filed or reeorded and he did not take the oath of office till April 30, 1864. But it appeared that said Annan made out this appointment for Hodge and dated it on the 13th and that he signed it on that day, but that it was not signed by Smith and delivered to Hodge by Annan till April 30, when said Hodge accepted the office, took the oath and filed his bond. The collector\\u2019s warrant and list of taxes were both signed by all three of the selectmen, and dated April 30. 1864, in which the taxes against said Baker were duly committed to said Hodge for collection.. No objection was made to the state tax. To authorize the raising of a county tax by the town of Holderness for that year (1864) plaintiff introduced the warrant of the county treasurer to the town of Holderness, ordering said town to raise the sum of \\u00a7722.31 as county tax. Plaintiff also introduced a copy of the procedings of the county convention held in June 1863, of which the following is a copy.\\nHaverhill, Dec. 1, 1863. \\u201c Report of the Grafton county delegation of Representatives, June ses&ion 1863. Agreeable to call Grafton county delegation met in south gallery of representatives hall immediately after adjournment of morning session June 12. Proceeded to choice of officers \\u2014 chose J. Buffum, of Monroe, President, A. Jenkins, Piermont, Secretary. Yoted to adjourn to call of the chair. At call met June 16th P. M. On motion of Parker of Lyman, voted a committee of three be appointed by the chair, to bring before the delegation, any business they may deem proper. Appointed committee Hoyt, of Holderness, Eastman of Littleton, Shaw of Lebanon. Yoted to adjourn to call. At call met June 18, A. M. In absence of clerk, chose Eastman of Littleton, clerk pro tem, Yoted to adjourn to call. At call met July 1, P. M. Cn call, heard report of committee. 1 herewith submit report of Committee. State of New Hampshire. Convention of Grafton county. The committee to whom was referred the amount of money to be raised for the county of Grafton have considered the same and ask leave to report. Your committee recommend twenty thousand dollars to be raised. George Hoyt, for the committee. Yoted to accept report of Committee. Yoted to adjourn \\u201c sine die.\\u201d\\nAlonzo Jenkins, Secretary.\\nThe state of New Hampshire. Grafton, ss. Supreme Judicial Court, clerk\\u2019s office, January 20, A. D. 1864. Received for record. Recorded and examined, Attest, G. A. Dole, Cleric.\\u201d\\nPlaintiff offered evidence as bearing upon the legality of the assment of the school house tax, the following. A book of records purporting to be the records of school district No. 14 in Holderness, in which was what purported to be the reeords of school meetings in said district for the years (among others) of 1863-4 & 5, with the testimony of witnesses, who stated that they had acted as clerk of said district in 1863-1864 & 1865, that said district embraced a part of Holderness village, and that this district had acted as a school district for fifteen years, and that Daniel S. Baker lived in this district and that the book of records produced were the records of said district. From said records it appeared that the copies of the war rants for the school meetings in March, 1863, and in 1864 were posted at the door of the school house in said district, but it appeared in evidence that said warrants were in fact posted on the door of said school house. The warrant for the meeting in March 1864, was dated March 22d, was posted up same day and called a meeting of said district to meet at said school house, on the 31st day of the same March, at which meeting said district voted, to raise the sum of thirty-five dollars to purchase mural maps, globes and apparatus for said district. It appeared that this vote was duly certified by the clerk of the district to the selectmen!, and that the selectmen made their assessment of the tax designated as \\u201c School House Tax,\\u201d by virtue of that vote, so certified to them. It did not appear from the records of said district that the warrant thus posted up March 22, 1864, for the school meeting, was under seal, but there was evidence tending to show that the original warrant was under seal, and the plaintiff had leave on motion, to amend the record, by showing that such amendment would be according to the fact. Plaintiff also moved for leave to amend the record of the county convention, in various particulars, and leave was granted to amend said record in any particulars, upon showing the court., that such amendments would be according to the tacts in the case.\\nIt appeared, that said Hodge, as collector, gave to said Baker a notice in writing of the amount of his taxes in May or June, 1864, after that, he called on said Baker, several times, for the taxes. Baker, finally, decliucd to pay them. There was evidence tending to show that said Baker had personal property, sufficient to pay the taxes, but that he did not expose the same, or offer to do so, to the collector so that he might levy and collect his taxes thereon. Hodge testified, that he met said Baker on the day before he advertised the land for sale, and told him that \\u201cunless he exposed the goods I should sell the land, but he did not expose any, but said he would not pay the tax.\\u201d There was no evidence that Hodge, in any other terms, notified Baker, or, demanded of him, to expose goods or chattels, out of which to collect the tax, and the court ruled that when payment of the tax was demanded, of the person against whom the tax had been assessed, and he neither paid it nor exposed goods and chattels for him to take, that he might then properly proceed and take the land. Hodge advertised the land for sale ; the following is a copy of the notice of sale :\\n\\u201c COLLECTOR\\u2019S SALE OE REAL ESTATE.\\nAll persons interested in the following tracts of land, in the town of Holdcrness, in the county of Grafton, are notified that the same are taxed in the tax-list committed to the subscriber, who, is collector of taxes for said toAvnfor the year 1864, as follow's : A certain tract of land owned by Samuel S., and George and Samuel H. Baker, known as the Samuel S. Baker homestead farm and now occupied by Samuel S., and David S. Baker, and taxed to the said Daniel S. Baker, for state, county, town and school taxes, thirty dollars and ninety-eight cents, and for school house tax, sixty-nine cents.\\nAlso,-.\\nAnd if no person shall appear to discharge said taxes on or before the fourth day of May next, at one o\\u2019clock, in the afternoon, I shall proceed to sell, at the Post Office in said town, at public auction so much of said real estate owned by such delinquents, respectively, as will be sufficient to discharge said taxes and all incidental charges against such persons. Joel Hodge, Collector.\\nHolderness, N. H., March 20, 1865.\\u201d\\nIn the notices ot the sale, that were posted up the word \\u201cthen\\u201d was written next before the words \\u201cproceed to sell.\\u201d And said notices, as posted up, may be referred to as part of this case. Leave to ameixd the record by inserting the wox'd \\u201cthen\\u201d before the word \\u2018 \\u2018proceed\\u201d was granted on motion of plaintiff. The land was sold oxxthe 4th day of May, 1865. Axxd said Hodge, as collector, gave a deed of the same to the purchaser, this plaintiff on the 4th day of May, 1866. The record of the return of the sale and the collector\\u2019s deed, and the wx-it in this case, may be referred to as parts of the case. Plaintiff moved for leave to amexxd the return of the sale and the record thereof, and also for leave to amend the collector\\u2019s deed (the same xxot having been recorded) and the grantee consentixxg.\\nIt appeared, by evidence addressed to the court, that the laxxd sold, was, in fact, seven axxd three-fourths acres by measure in the northwesterly corner of the Samuel S. Baker farm, so-called, beginning at the brook axxd on the southerly side of the bx\\u2019ook, thence going nox\\u2019tlxerly (on the highway) to the CaxT farm, thence extending easterly, of equal width all the way, far enough to make the required quantity. Axxd leave was granted to the plaintiff to have the account of the sale and the record thereof, amended and also the collector\\u2019s deed, if under the circumstaixces that may properly be amended, so as to correspond in the description of the land, with the land actually sold as described above.\\nThe return of the sale of the land, was as follows : \\u201cThe following is a true account of the-sale of the real estate of persons resident in the town of Holderness, for taxes assessed upon the same ixx said town for the year 1864, and which were sold pursuant to ixotice, at public auction at the Post Office ixx said town, oxi the fourth day of May, 1865. Sevexx and three-fourths acres of the Samuel S. Bilker homestead farm, so-called, bounded thus : On the west, by the highway leading from Holderness village to Andrew Baker\\u2019s farm; northerly, by land now owned by John B. Carr; easterly, and southerly, by the remaining part of said Baker farm \\u2014 axxd was sold to John G. Annaxx, he being the highest bidder, for thirty-six dollars and fifty-seven cents, to pay the taxes remaining unpaid, assessed on said Baker place, amounting to thirty-one dollars and sixty-seven cents, and incidental charges amouxxting to four dollars and ninety cexxts, being in the whole, thirty-six dollars and fifty-seven cents.\\nJoel Hodge, Collector.\\nGrafton, ss. May 4th, 1865. Then the said Joel Hodge appeared and made oath that the foregoing account by him signed is true, before me, John G. Annan, Justice of Peace.\\u201d\\nThe description of the land in the collector\\u2019s deed, was as follows :\\n\\u201cSeven and three-fourths acres of the Samuel S. Baker homestead farm, so-called, bounded thus : On the west, by the highway leading from Holderness village to Andrew Baker\\u2019s farm; northerly, by land now owned by John B. Carr; easterly and southerly, by the remaining part of said Baker\\u2019s farm.\\u201d \\u25a0\\nVerdict for plaintiff, which the defendant moves to set aside.\\nThe following objections to the plaintiff\\u2019s testimony were seasonably made by the defendant and al \\\\ proforma, overruled by the court, to which the defendant excepted, as he also did, to the ruling of the court, as stated in the case. And the questions of law are reserved.\\nDEFENDANT\\u2019S EXCEPTIONS IN ANNAN V. BAKERS.\\nThe collector did not file his bonds within six days after his appointment. Two of a board of selectmen cannot appoint the third collector. The vote to raise school money above that required by law is indefinite, uncertain and of no effect. It does not appear upon what sum or amount the thirty per cent, is to be reckoned and determined. The school district for which the tax was assessed was not sho wn to have any legal existence. It was not shown that the town, by vote or otherwise, had ever established such district, or that there was auy such district defined by metes and bounds by the town, as is required. The school meeting at which the money was voted, to raise which, the assessment was made, was an annual meeting, and was called and held after March 15. The record shows the notice for the meeting in 1863, was posted at the door, not on it. The warrant for the meeting was not under seal. Notice for the meeting in 1864 posted at, not on the door. If the meeting, at which the money was raised, can be regarded as a special meeting, it being to raise money, the notice was deficient in length of time, as there was only eight days, the law requiring ten. Money cannot be voted and raised to buy mural maps, nor globes, nor apparatus. The plaintiff did not show that he had any deed of the property. The paper he relied on as a deed, was void ; 1st, Because it was given before the law authorized it to be, and within a year from time of sale ; and, 2d, because it was uncertain and indefinite. The advertisement or notice of the sale was deficient, in this, that it gave no hour, and the return is deficient for the same reason. The collector had no right to sell the land. There was no lien on it. It appeared that the defendant had an abundance of personal property, and that no request of him was ever made by the collector to expose it, and that the defendant neither neglected or refused to expose personal property when requested. The clerk of the county convention which it is claimed voted the county tax, was not sworn. The proceedings of said convention, the last meeting of which was in July, were not reduced to writing or made up until more than sixty days had elapsed after the dissolution of said convention, and until December 1, 1863 thereafter; and no return of the proceedings of said convention was furnished the clerk of the court within sixty days, cither after the adjournment of the legislature or the dissolution of the convention. The personal property of the defendants against whom the assessment was made must first be taken, inasmuch as he had a sufficiency known to the collector, and which he neither neglected or refused to expose on request. The real estate was exempt and could not be proceeded against.\\nUpon the points considered by the court, Pike & Blodgett, for the defendants, contended:\\nI. The plaintiff\\u2019s deed was prematurely delivered, and is, therefore, absolutely void. The statute provides that the deed shall be given at the end of one year from the time of sale. Comp. Stat., ch. 49, sec. 17. This means after the expiration of a year. Bell\\u2019s Town Officer (4th ed.), 138. Gen. Stat., ch. 55, sec. 17. The owner is entitled to a full year in which to redeem, and this did not end until midnight on the fourth day of May, 1866. C. S. chap. 1, sec. 25 ; Rand v. Rand, 4 N. H. 267 ; Rlalce v. Orowninshield, 9 N. H. 304. The cases cited by the plaintiff, showing that for some purposes a day ends at sunset, have no bearing, because they relate only to commercial usuages. Day in our statutes, and generally, means civil day, and not natural, as claimed by plaintiff. \\u201c The common acceptation of the word day is a civil day, beginning and ending at midnight.\\u201d /Shaw v. Dodge, 5 N. H. 462. The defendants are entitled to a liberal construction of the statute. \\u201cA law which authorizes the redemption of lands sold for taxes, ought to receive a liberal and benign construction in favor of those whose estates would be otherwise divested, especially in those cases where the time allowed for the payment of the taxes is short, the indemnity given to the purchaser ample, and a penalty is imposed on the owner.\\u201d Dubois v. Hepburn, 10 Peters 1. The presumption of Jaw is, that the defendant, D. S. Baker, was ready to redeem on the day the deed was delivered, and was prevented from doing so by the wrongful delivery. If, therefore, there is any doubt as to the rule for computing time, or as to the construction of the term \\u201c at the end of a year,\\u201d defendants should have the benefit of it, because \\u201cthe neglect to redeem is in the nature of a forfeiture of the owner\\u2019s right, and, therefore, the court will so construe the statute as to prevent this effect, if the language is susceptible of a doubt.\\u201d Bands v. Lgon, 18 Conn. 30.\\nII. The deed is void for uncertainty. The general doctrine is, that when the description is so uncertain that the land cannot be identified, the deed will be void. ,\\nThe description in plaintiff\\u2019s deed, is as indefinite as in Bean v. Ihompson, 19 N. H. 290, or in Harvey v. Mitchell, 31 N. H. 575. If the plaintiff has any rights under the deed, he has that of selection. He can locate his land in any form he pleases. He can establish his east and south boundaries, without special regard to length or breadth, but with special reference to the quality and value of the land. The only limitation, east and south, is that his tract in those directions is to be bounded \\u201c by the remaining part of said Baker\\u2019s farm,\\u201d which may be a strip not more than a foot in width. Practically, the deed gives the plaintiff the right of election, which might in its exercise almost destroy the value of the defendant\\u2019s farm, or greatly incommode him in its use and occupation. Such right of election the law will not tolerate. Iiaven v. Oram, 1 N. H. 93; Harvey v. Mitchell, ante. There is no rule of law which will locate this land. The law will not do that for plaintiff which it prohibits him from doing. The court cannot presume, that the lines will be straight, or that the road runs due north and south. The land may so lie, that it cannot be located in any particular form. The plaintiff\\u2019s counsel admit, they do not know in what form it would be, and it is submitted, the court cannot say, with no knowledge of the situation of the Baker farm, or of the relative length of the lines north and south, east and west. The universal rule is, that in sales by officers under process of law, the land must be defined with certainty. In the language of the supreme court of New York, in Jaclcson v. DeLancy, 13 Johns. 551: \\u201c It is altogether inadmissible that the property of parties should be swept away in this loose, undefined manner. It would operate as a great oppression on the debtor, and lead to the most odious and fraudulent speculations. To tolerate such judicial sales, would be a mockery of justice.\\u201d \\u201cThe deed of the collector, taking effect only as the execution of a statute power, should be construed with strictness so as to enable the grantee to identify the land, and to enable the owner to redeem it.\\u201d Hill v. Mowry, 6 Gray, 552.\\nIII. If the deed is not void, the motion to amend it cannot prevail ; because,\\n(1.) The collector is not an officer of the court, and his proceedings do not go upon or become part of its records.\\n(2.) The amendment is asked in court of law, which has no jurisdiction.\\n(3.) It cannot be granted, in any court, upon a simple verbal motion.\\nIY. But the plaintiff says, there is no necessity for a deed, the title passing by the sale. This position is -wholly untenable. The sole authority to sell lands for taxes, results from statute provisions, \\u25a0with all of which, there must be strict compliance. The provision that there shall be a deed, is positive and imperative. The sale is not absolute, but conditional. If the owner does not redeem within the year, the purchaser may have a deed, and it is this which perfects his title. Until this happens, he has simply an indefinite, contingent and inchoate right, which comes to nothing, without a deed. The collector has no power to deliver possession, and the purchaser is not entitled to and cannot obtain it, until he receives a deed. In all sales of real estate, there must be a deed to pass the title; here was a sale; consequently, there must be a deed. See Comp. Stat., ch. 136.\\nLeverett & Blair, and Carpenter, for plaintiff.\\nUpon the same points contended : That the deed was delivered by collector at the time, required by law; \\u2018 \\u2018 The collector is to give the deed at the end of one year.\\u201d Comp. Stat., ch. 49 \\u00a7 17. The year clearly ended at the end of thq fourth, and before the commencement of the fifth, day of May. It is submitted, that the last moment of the fourth day of May wks the end of the year, the only point of time literally and exactly answering to the language of the statute. Any later time would not be \\u201c at,\\u201d but after, the end of the year. The year ended at the close of business hours on May 4. The defendant could not redeem after that time, or after sunset on that day. Aldrich v. Albee, 1 Green. 120 ; Shed v. Brett, 1 Pick. 401 ; Bacon\\u2019s Abr. Tender D. Wade\\u2019s Case, 5 Coke 114, Twickley v. Prentice, 4 Taunton 549 ; Con. Dig. Rent, D. 1.\\nIt will not be presumed, that the deed was made, and delivere d before dark on May 4th, but, rather after that time ut res valeat.\\nBut, we submit the time of the execution of the deed is wholly immaterial. The statute does not in terms, nor by implication/or-bid the giving of a deed before the end of the year, and it will not be contended, that a deed given a month after the. end of the year is invalid for that reason. The giving of the deed could not affect the land owner\\u2019s right to redeem. But, if that be not so, still the question here arises against the owner of the land, who if he made any effort, or intended to redeem, can readily show it. As against him, therefore, however, it might be, as against a stranger, the deed will be held not to be unseasonably given, unless he shows some intent or effort to redeem, or that he was prevented by the premature delivery of the deed.\\n(2.) The deed is not void for uncertainty. It calls for a square or rhombus, in the northwesterly corner of the homestead farm, containing seven and three-fourths acres of land. Walsh v. Ringer, 2 Hammond, Ohio, 327, is directly in point and decisive ; Lyford v. Thurston, 16 N. H. 409 ; Jackson v. Vickery, 1 Wendell 406.\\n(3.) No amendment of the deed is neeessary, for the reason, that the plaintiff\\u2019s title, as against the defendant, is now perfect without any deed. It need not have been put in evidence at all. The sole object of a deed is to be placed on the record, as a notice to subsequent purchasers. The title passes by the sale, subject to the rights to redeem within a year, and not by the deed.\", \"word_count\": \"6902\", \"char_count\": \"38260\", \"text\": \"Nesmith, J.\\nWe propose to examine but two or three of the questions involved in this case.\\nOur examination of the case, proceeds under the guidance of the well-established rule of law, that the party, who seeks the benefits of statute law, must adhere closely to its requirements, or must show a substantial compliance with its provisions. Therefore, the burden of proof, is upon him, who claims under a collector's deed to show his proceedings legal or regular. Harvey v. Mitchell, 31 N. H. 578. Cass v. Bellows, 31 N. H. 506. Waldron v. Tuttle, 3 N. H. 340. The defendant says the collector's deed, upon -which the plaintiff must rely for his title, was given prematurely, and, for this reason, must fail. The land in dispute, was sold on the 4th day of May, A. D. 1865, and the collector delivered his deed to the purchaser, being the plaintiff in this suit, on the 4th day of May, A. D. 1866. Ch. 49 of the Comp. Laws, sec. 17, provides, that the collector, if living, otherwise his administrator, shall, at the end of one year from the sale, execute, to the purchaser or his heirs, a deed of the land so sold, and not redeemed. The defendant contends that the deed in this case was executed before the year for redemption of the land sold had ended or expired, and that he was entitled to the whole entire civil day of May 4, 1866, in which he might have legally redeemed the land sold, and thereby prevented the delivery of any deed to the plaintiff; and that the deed could not, with any legal propriety, have been delivered prior to the 5th day of May, A. D., 1866. Under the common and well received construction of our law, bearing on the subject, we think the defendant is correct. Sec. 25 of chap. 1, of the Compiled Laws, prescribes, that when time is to be x-eckoned from any day, date, act done, or the time of any act done, either by force of law or by virtue of any contract, hereafter made, such day, date, or the day when such act is done, shall not be included in such computation. The day of sale of the land for taxes being excluded by the aforesaid statute rule, of course it follows by fair legal intendment, that the owner must have one full and entire year for the payment of his taxes, and the l'edemption of his land from and after the fourth day of May, A. D., 1865. The woixl after has been recently introduced into our General Statutes, instead of at. But the intent or meaning of the statute remains unchanged. It appeal's to us the constraction we give to the law on this subject, upon a just interpi'etation of the several statutes, admits of no other or different construction.\\nMr. Fox, in his Town Officer, printed in 1847, gave the following rule to collectoi's of taxes and others interested in the subject. Rule 16, p. 109: \\\"The owner may redeem any tract, or any interest therein, within one year next after the day of sale; that is, on or before the same day of the same month in the next year; and the collector, within ten days after the day of redemption expires, shall leave a list of all the lands so redeemed with the town clerk, who shall record the same.\\\" Then follows rule 17th: \\\" After the expiration of one year from the day of sale, the collector shall execute to the purchaser, or his heirs, a deed of so much of the land sold as is not redeemed according to law.\\\" The same rules of construction are adopted by Chief Justice Bell in his edition of the Town Officer, and are sustained by many judicial decisions in this state and others xxpon similar questions, involving the computation of time. Leavitt v. Simes, 3 N. H. 14; Rand v. Rand, 4 N. H. 267 ; Blake v. Crowninshield, 9 N. H. 304. So in Massachusetts : Bigelow v. Wilson, 1 Pick. 485; Wiggin v. Peters & al., 1 Met. 127.\\nThe latter case was debt on bond for the prison limits, under the condition that Peters, who was committed to jail, &c., should, at the expiration of ninety days from the day of his commitment, surrender himself at the jail-house, &c. Shaw, C. J., upon the facts stated in that case, says: The words of the bond are, at the expiration of ninety days from the day of his commitment. The words of the statute are the same in effect, though in different language. Ninety days is a term of time, excluding the day of commitment, and the bond is not forfeited, if he obtain his discharge at any time within that term. The case of his not obtaining his discharge cannot happen until the whole of that time has expired ; and, therefore, there can be no breach of this condition until the whole of that time has expired. In the case before us, excluding the day of commitment, the term of ninety days expired o.n the last moment of the last day of June ; and, therefore, the surrender having been made on the first day of July, it was within the time limited by the law, and the terms of the bond, and thus saved the forfeiture. Judge Shaw remarks that the general rule governing the aforesaid case, was settled in Bigelow v. Wilson, before quoted. The marginal note of the latter case, is in the following language : \\\"In computing the time allowed by the statute of 1815, being ch. 137, sec. 1, for redeeming an equity of redemption, sold on execution, which is within one year, next after the lime of executing by the officer to the purchaser the deed thereof. The day, on which the deed is executed, is to be excluded in the computation.\\\"\\nNo moment of time can be said to be after a given day, until that day has expired. For a day is to be considered as an indivisible point of time ; and there can be no distinction between a computation from an act done, and a computation from the day, in which the act was done. Bagley v. Bayley, 5 Gray, 510; Fuller v. Russell, 6 Gray 128. So the six months after an assignment, which was dated May 16, expired on the following 16th of November of the same, year. 2 Cush. 334.\\nUnder an agreement to convey lands, on the payment of a promissory note, in annual payments, the day of the date is to be excluded. If dated on the 3d of March, A. D., 1847, a payment, or tender of the first installment on March 3, A. D., 1848, is sufficient. 4 Cush. 460. So in New York it is settled, that when after the expiration of a given number of days from one act, another may be done ; the day of the first act must be excluded, and the second act cannot be done till the day after the expiration of the given number of days. Com. Bank v. Ives, 2 Hill, 355 ; Butts v. Edwards, 12 Denio. 164; Cornell v. Moulton, 3 Denio 16: vide, also, Green. Cruise Title 32, ch. 5, sec. 17, & note; Strong v. Birchard, 5 Conn. 361; Young v. Higgon, 6 Meeson & Welsby 53; Streets v. Selden, 2 Wal. 190.\\nWe may remark, generally, when statute law defines the times for the redemption of estates mortgaged, as when the equity of redemption has been sold and conveyed, or when lands have been sold for taxes, and the original owners of such estates are in danger of loss, through forfeiture for failure to redeem seasonably or otherwise, courts are inclined to construe the law liberally in favor of the original owner, and in opposition to the loss of the estate. In Dubois v. Hepburn, 10 Peters, U. S. Court 4, Baldwin, J., says : A law, authorizing the redemption of an estate sold for taxes, ought to receive a liberal and benign construction in favor of those whose estates will be otherwise divested, especially where the time of redemption is short, and the purchaser can obtain indemnity. It would, therefore, seem not to be necessary for the purposes of justice, or to effectuate the objects of the law, that the right to redeem should be narrowed down by a strict construction of the statute on this subject. And when there is any doubt as to the right or power of redemption, the original owner is to have the benefit thereof. 18 Conn. 30.\\nWhen personal property is distrained and sold for taxes, the law holds that the collector shall keep the property the whole four days after the seizure, and before the final sale, for the reason that the owner should have all the time allowed by the statute in such cases for the redemption of his property, and to save the sacrifice consequent to a sale; and such sales have been pronounced illegal where the full time has not been given by the collector prior to his sale. Mason v. Thomas, 36 N. H. 302 ; Souhegan Factory v. McConihe, 7 N. H. 309 ; Lefavor v. Bartlett, 42 N. H. 555. Our legal day is the civil day. Shaw v. Dodge, 5 N. H. 462.\\nWith these views, and under the force of the authorities before referred to, we come to the conclusion that the original owner did not have his legal time for the redemption of his land before the collector executed his deed to the plaintiff. And that, consequently, the deed was executed prematurely, and plaintiff's title for this reason must fail. At the end of the year, means after the expiration of the year, and not at any hour, minute, or instant before the end of the year.\\nThe plaintiff's counsel contends that the naked sale of the land for non-payment of taxes, could vest in the purchaser a full right of entry as against the original owner. But we understand the rule to be otherwise settled. That the title cannot be regarded as perfected, except by deed fortified by the previous regular proceedings \\u2014 so settled in the analagous case of an administrator's sale. Livingston v. Pendergast, 34 N. H. 544.\\nSupposing our views to be correct so far, we might reasonably close the further discussion of the exceptions made by the defendants to the plaintiff's recovery in this case; but we, however, propose to discuss briefly the plaintiff's motion to amend the record of the collector's return of the land sold, as well as the description of the land in plaintiff's deed. Plaintiff says these records are both defective, and asked for an amendment of both the sale and deed, at the trial before the jury, in order, as he says, that they should be made to correspond to the true intent of the parties, when the land was sold, and subsequently conveyed. Our courts have generally been inclined to listen favorably to motions for amendments, when found necessary, and when they can be made consistently with the established rules of practice, and with the true original purposes or intents of the interested parties. In this case, two objections present themselves to the plaintiff's proposition. If, as the plaintiff suggests, an important or material mistake exists in the description of his deed, such mistake cannot be reformed by the court, while sitting as a court of law. Application for relief of this nature must be made to the court under its chancery jurisdiction; where the evidence, bearing on this question, must be collected and presented to the court, under a suitable petition, stating the facts of the case, and where such evidence may be weighed and considered, and a decree be made according to its influence upon the minds and conscience of the court. If, through accident, a mistake actually existed here, such as might materially prejudice the plaintiff in obtaining his expected rights, then we might order this case to be continued so long as might be necessary, to give him an opportunity to have such mistake corrected in the usual and proper manner. Prescott v. Hawkins, 12 N. H. 19.\\nWe are, however, inclined to the opinion, that the deed before us may stand without amendment. This court is bound to carry out the intent of the parties, if it possibly can, by giving a fair and reasonable construction to the language and meaning of the parties, so that res valeat et non per eat. Now, looking at the description of the deed from the collector to the plaintiff, we find that the quantity of land conveyed is definite, viz., seven and three-fourths acres. Next, that it is part of Samuel S. Baker's homestead farm; hext, bounded west by the highway, leading from Holderness Village to Andrew Baker's farm; northerly, by land now owned by John B. Carr ; easterly and southerly, by the remaining part of said Baker's farm. To give all parts of the boundaries of said tract of land due effect, it becomes a certainty that the location of this land must be at the northwest corner of the said Samuel S. Baker's homestead farm. Because here, and nowhere else, must be the point of intersection of the aforesaid highway with John B. Carr's farm. Then the tract of land has for its western boundary the aforesaid highway, and the Carr farm for its northern boundary. Starting from the northwestern corner, or point of intersection, and running equi-distant lines on said highway and the Carr farm, so far as to embrace the given quantity of land, and the description of it is reasonably perfected. Id certum est quod reddi certum potest. The figure of, the land hereby conveyed must be determined by the course of its outside boundaries. The angle formed by the external lines maybe a right angle, more or less. It is perfectly immaterial what the precise shape of the land conveyed may assume. The description called for is made complete, when,, from the ends of the first two lines heretofore described, the' easterly and northerly lines, bordering on the said S. S. Baker's farm, are united, thus embracing the land intended to be conveyed in one compact body. In this 'way, we are enabled to identify the land sold, as being the same land conveyed, and there is no occasion to amend either record.\\nIn Hill v. Mowry, 6 Gray 552, Judge Shaw says : The deed of the collector, taking effect only as the execution of a statute power, should be construed with strictness, so as to enable the grantee to identify the land, aud the owner to redeem it; and if the description in a conveyance be so uncertain, that it cannot be known what estate was intended, the conveyance is void. Worthington v. Hyler, 4 Mass. 205; Tenney v. Beard, 5 N. H. 58; Haven v. Cram, 1 N. H. 93 ; Bean v. Thompson, 19 N. H. 290 ; Harvey v. Mitchell, 31 N. H. 575 ; Wash v. Renger, 2 Hammond, Ohio 327.\\nWe, therefore, reject, the proposed amendments, and stand upon the validity of the original sale ; and the deed, so far as the description ot it is concerned, we pronounce sufficient.\\nThe first exception of the defendant, being found valid and fatal to the plaintiff's right to recover under his title, the verdict must be, therefore, set aside and\\nA new trial granted.\"}" \ No newline at end of file diff --git a/nh/1050226.json b/nh/1050226.json new file mode 100644 index 0000000000000000000000000000000000000000..46fbc7eb9cc5931b8bae600ee813b49e7420b736 --- /dev/null +++ b/nh/1050226.json @@ -0,0 +1 @@ +"{\"id\": \"1050226\", \"name\": \"Emma Taylor v. Grand Trunk Railway Company\", \"name_abbreviation\": \"Taylor v. Grand Trunk Railway Co.\", \"decision_date\": \"1869-01\", \"docket_number\": \"\", \"first_page\": 304, \"last_page\": \"321\", \"citations\": \"48 N.H. 304\", \"volume\": \"48\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Supreme Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-11T00:28:17.806510+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Emma Taylor v. Grand Trunk Railway Company.\", \"head_matter\": \"Emma Taylor v. Grand Trunk Railway Company.\\nAfter the entry of a suit by a minor by her next friend, she died and her administrator was admitted as the party to prosecute the suit; it was held that the wife of such next friend was a competent witness for the plaintiff:\\nHeld also that it was too late to object to her competency after the direct examination in her deposition had been read, the counsel being aware of her situation at the commencement.\\nThe admission of tho representations of a sick person should be confined to such expressions as furnish evidence of the present condition of the patient, excluding carefully every thing in the mature of a narrative of what is past.\\nThe statement that a person was lamer in the morning than the day before is not matter of opinion but a statement of a fact, and not objectionable.\\nToe admissions of the father of the person alleged to be injured and bringing suit for it, made before her death, are not admissible against her administrator, unless it he shown that the father is the real party in interest for whose benefit the suit is prosecuted.\\nIf this he shown the admissions would he competent, although when they were made the father had no interest.\\nBut the mere fact that the estate of the daughter would descend to the father subject to the claims upon it, would not make him the party to the suit so as to render his admissions competent.\\nThe testimony of a physician that injuries from railroad accidents were more severe than from other causes though bearing the same external appearance, is admissible although his knowledge is derived from study alone.\\nOn the cross-examination of a witness offered by the railroad, and who had charge of the section where the alleged injury happened from a defective rail, it is proper to ask him if he was short of iron at the time.\\nCommon carriers of passengers are bound to the exercise of the utmost care aud diligence of very cautious persons, and are responsible for any, even the smallest, negligence.\\nThe standard of care and diligence required of a railroad in carrying passengers does not depend upon its pecuniary condition or the \\u00e1mount of its revenues, but it is bound to provide a track, rolling stock, and all other agencies suited to the nature and extent of the business it assumes to do.\\nA direction to the jury that a railroad must use such a degree of care as is practicable, short of incurring an expense which would render it altogether impossible to continue the business, is erroneous, and calculated to mislead the jury.\\nWhen an injury upon a railroad is caused by the gross negligence of the cor-| poration, the jury may, if they think proper, award exemplary damages. 1\\nCash to recover for injuries alleged to have been sustained by Emma Taylor, in Sept. 1866, while travelling on defendants\\u2019 road. In the writ, dated Oct. 3d, 1866, plaintiff was described as a minor suing by A. TV\\\". Pope, her next friend. At April Term, 1867, the death of plaintiff was suggested, and John Bailey, 2d, her administrator, was admitted to prosecute the action.\\nI. Plaintiff offered the deposition of Elizabeth A. Pope, taken after the death of Emma Taylor. Defendants liad appeared by counsel at the caption, and -had raised no objection to the competency of the witness. No objection was raised at the trial until the plaintiff had read to the jury, the direct examination of deponent, when defendants, at the reading of the first question on cross-examination, (\\\" Is not Albert TV. Pope, who prosecutes this suit, your husband?\\u201d Answer \\u2014 \\\"He is,\\u201d) objected to the competency of the deponent, because she was the wife of A. TV. Pope. The objection was overruled, subject to defendants\\u2019 exception.\\nII. The following testimony relative to Emma Taylor\\u2019s condition after the injuries were alleged to have been received, was admitted, subject to defendants\\u2019 exception. Deposition of Abby C. Jennison \\u2014 answer to interrogatory 5 : \\\"I was out and in the room often till about 12 o\\u2019clock. At that time she said she had not had any rest. She seemed to suffer and seemed weak and debilitated.\\u201d (This was on the night after the accident.) Answer to interrogatory 20 : \\\" She did not seem to be excited, frightened.\\u201d (This was within a few hours after the accident.) Deposition of Mrs. Unity P. Crane who slept with Emma Taylor, the night after the accident. Interrogatory 18 : \\\" How was her lameness in the morning as compared with the day before, from what you saw and observed in her motions, and your examination made?\\u201d Answer \\u2014 \\\" She was lamer in the morning.\\u201d\\nIII. It appeared that Emma Taylor died under twenty-one years of age, unmarried, and without issue. Defendants\\u2019 offered to prove declaration made after the accident, and before the death of Emma, by her father, who is still living. The evidence was excluded, subject to defendants\\u2019 exception.\\nIV. Dr. Harris testified in substance, subject to defendants\\u2019 objection, that injuries received in railroad accidents were more severe than injuries received from other causes, and bearing the same external appearance. Dr. Harris had previously testified that he was a practising physician, that he had not attended persons injured on railroads, and that his knowledge on the subject was derived from reading. The objection that Dr. H. was not an expert on the subject was not specifically taken. If it had been, the court would probably have ruled that he was an expert. Defendants\\u2019 had previously objected to testimony on the subject from another physician who had had j>ractical experience m attending on persons injured on railroads.\\nV. It was admitted that the accident was caused by the breaking of a rail. Subject to defendants\\u2019 exception, plaintiff was allowed, on cross-examination, to ask the foreman of the five mile section where the accident occurred, \\\"Were you short of iron at the time of the accident?\\u201d Answer to the above and other questions : \\\"I had iron to repair that place \\u2014a whole old rail, but a good one \\u2014 shouldn\\u2019t have put in a new one if I had had it \\u2014 think I hadn\\u2019t any new rails on hand at that time, not certain.\\u201d\\nVI. The jury were instructed as to defendants\\u2019 liability, in substance as follows : The burden of proof is on the plaintiff to show that the accident occurred under such circumstances that the defendants were liable for the consequences; defendants are not insurers, and are not liable if they have been in no fault, but they are liable for the smallest negligence; they must provide a good track, and if there be the least failure in this, they are answerable for any injury that may happen in consequence. Defendants are bound to use the highest degree of care which a reasonable man would use ; this does not mean the utmost degr.ee of care which the human mind is capable of imagining, or in other words that care enough must be taken to render the passengers perfectly safe ; such a rule would require so great an expenditure of money, and the employment of so many hands. Defendants must use such a degree of care as is practicable, short of incurring an expense which would render it altogether impossible to continue the business. The law does not require such particular precaution as it is apparent after the accident might have prevented the injury, but such as would be dictated by the utmost care and prudence of a very cautious person before the accident and without knowledge that it was about to occur. Defendants must use the highest degree of practicable care and diligence that is consistent with the mode of transportation adopted. They are not obliged to use every possible preventive that the highest scientific skill might have suggested. It is said that they must use the best precautions in known practical use to secure safety, the most approved modes of construction and machinery in known use in the business ; but this doctrine must be taken with the qualification, that they are not obliged to introduce improvements if the expense of introducing them is much greater in proportion, than the increase of safety thereby attained.\\nDefendants excepted in these words : \\u2014 \\\" To the charge of the court as to the liability of common carriers of passengers by railroad.\\u201d\\nVII. Evidence was introduced by plaintiff, tending to show that the track was \\\" very much curved \\u201d at the place of the accident; that the rail which broke was on the inside of the curve, next the Ammonoosuc river, and about fifteen or twenty feet from the river ; that this rail appeared very much worn and battered or broomed, from one to two feet from the end ; that it was a \\\" U \\u201d rail; that some two feet of the rail broke off, and that two passenger cars went off the track and part way done the bank, being almost bottom side up when they rested; that the train was going at the rate of not more than twenty miles an hour when the accident occurred. s\\nDefendants introduced evidence tending to show that the breakage was occasioned by a hidden defect in the rail, which they were not in fault fir not detecting ; but although several employees of the defendants, including the chief engineer of that portion of the road were on the spot immediately after the accident and saw the rail, (and the defendants sent an eminent physician from Montreal to look after the persons injured,) it did not appear that defendants preserved the rail, and the rail was not produced by them at the trial.\\nThe jury were instructed, that if they found that the accident was caused by the gross negligence, of defendants, they might, if they chose, give exemplary damages, but that they were not bound to do so. Part of the decision in Hopkins v. At. efi St. L. H. 12., 36 N. H., 9, beginning on the third line from the bottom of page 17th, and ending on the eleventh line from the top of page 19th, was read to the jury, (omitting authorities,) to be considered by them only as a statement of l-easons which had induced the court to allow juries to give exemplary damages in cases of gross negligence.\\nDefendants excepted \\\" to the charge of the court in regard to exemplary damages,\\u201d and also took the exception, \\\" that the question of exemplary damage ought not to have been submitted to the jury, upon the evidence in the case, and that it was error to do so.\\nThe jury were requested, in case they found for plaintiff and gave exemplary damages, to assess the actual and exemplary damages separately. The jury returned a verdict for plaintiff, and assessed the actual damages at five hundred dollars, and the exemplary damages at eight hundred and fifty-eight dollars and fifty cents. A verdict was then taken for plaintiff, damages $1358.50, with leave to plead a remittitur, if plaintiff should hereafter desire to do so.\\nDefendants move to set aside the verdict on account of the foregoing rulings, and also \\\" because the exemplary damages assessed by the jury, were excessive and beyond all measure.\\u201d\\nJVhidden & Haywood, Ray tfi- Ladd, for plaintiff.\\nFletcher and Bingham, for defendants.\", \"word_count\": \"9787\", \"char_count\": \"54888\", \"text\": \"Bellows, J.\\nThe first question is whether Mrs. Pope was a competent witness. On that point it appears that the suit was brought in October, 1866 by the minor Emma Taylor, who sued by her next, friend A. W. Pope, the husband of the witness Mrs. Pope; and that at the April Term, 1867, the death of Emma Taylor was suggested, and her administrator, John Bailey 2d, admitted to prosecute the action. The trial was at the August Term, 1868, and the deposition of Mrs. Pope was taken after the plaintiff's death.\\nThe objection was that the husband was originally a party and liable for the costs of the suit. If this were so originally, it is clear that he ceased to be a party at the April Term, 1867, when the administrator was admitted to prosecute the action. In principle it stands like the case of an administrator removed from the trust pending a trial to which he is a party, and the appointment of another person who is admitted to take his place as such party. Here, as was held in Wiggin v. Moulton, Administrator, erroneously reported as Wiggin v. Plummer, 31 N. H. 265, the former administrator ceases to be a party altogether, and unless otherwise interested was a competent witness under the old law. That being the case there was at no time any liability on the part of A. W. Pope for any thing more than the costs up to April Term, .1867, and as no judgment in chief can now be rendered against him, he caving ceased to be a party, we are not aware of any mode of enforcing against him a claim for any part of the cost; and such was the decision in Wiggin v. Moulton, before cited. It is quite obvious that no judgment for costs could be rendered until the trial is ended, and then judgment must be against the then party, and such was clearly the conclusion of the court in the case cited.\\nIf the prochein ami was liable for costs up to the time of the plaintiff's death, it might be equitable to require the administrator to furnish some equivalent security, and by the Revised Statutes, chap. 191, sec. 7, the court has power to order it, and so it is by the General Statutes.'\\nIn accordance with this view it has been held that a next friend will not be permitted to withdraw from a cause in order to become a witness without security for the costs up to that time being furnished. Witts v. Campbell, 12 Ver. 493.\\nUpon the point whether the next friend is liable for the costs there is some conflict in the authorities, but the preponderance we think is in favor of his being liable ; but however this may be we are of the opinion that in this case no claim for costs after the admission of the administrator of the plaintiff could be enforced against the prochein ami, and that consequently the wife was a competent witness.\\nBesides, it is by no means clear that the objection may not be regarded as waived. The examination in chief was read without objection, and it is obvious that the counsel for defendant knew the witness was the wife of the next friend, for the fact was drawn out by the cross-examination of one of them ; and the judge would have been well warranted in finding that the fact was known when the deposition was commenced to be read; and if so the objection would be considered as waived.\\nIn respect to the declarations of Emma Taylor testified to by Abby C. Jennison, the rule is well settled here that representations by a sick person of the nature, symptoms and effects of the malady under which he is laboring at the time are admissible. Howe v. Plainfield, 41 N. H. 135; Perkins v. Concord R. R. 223; 1 Greenl. Evi. sec. 102. Such evidence is admitted because these expressions are the natural language of suffering and pain which often could not be otherwise proved. This evidence, however, is not to be admitted beyond the necessity upon which the rule is founded, and therefore everything in the nature of a narrative of what is already past is to be carefully excluded, and the testimony confined to such expressions as furnish evidence of the present condition of the patient. Bacon v. Charlton, 7 Cush. 586, and Chapin v. Marlborough, 9 Gray 244.\\nTested by these rules the statement of Miss Taylor that she had not had any rest was not strictly admissible. It is true, as suggested by the plaintiff's counsel, that there is included in the expression the idea that she was then unable to sleep, and so far it would not be objectionable ; but it relates also to time that was past, and if admitted it would be difficult to tell where to stop. Still it does not seem to be\\\" at all material, and on that ground we should hesitate to set aside the verdict for that cause.\\nThe statement of Mrs. Crane that Miss Taylor was lamer in the morning than the day before was. not objectionable as matter of opinion. It was a statement of a fact open very largely to common observation. In a very great proportion of cases, indeed, it would be impossible to describe to a jury the extent of the lameness at the different times so as to be intelligible, and yet the difference might be perfectly obvious to the eye. See Whittier v. Franklin, 46 N. H. 23. In Eastman v. Amoskeag Co. 44 N. H. 143, 155, it was held that a witness might be allowed to state that the water in Merrimack river ran higher on the plaintiff's land the year in question than during previous years. See also Willis v. Quimby, 31 N. H. 485.\\nUpon the subject of the father's admissions it appears that they were made during the daughter's life, and when he had no interest in the suit which she had commenced by her next friend, A. W. Pope; and the competency of those admissions is urged upon the ground that the avails of this suit now prosecuted by the daughter's administrator, will go to the father as the sole representative of the daughter, and that the father thus became the party in interest.\\nAt the time the admissions proposed to be proved were made, the father occupied no position that would render his admissions competent. In Harney v. Donnelly, 12 Gray's Rep. 361, it was held that the declarations of the father in respect to injuries received by his minor son were not admissible in favor of the defendant in a suit after-wards brought by the soil by the father as his next friend. This was put upon the ground that there was no proof that up to the time of those declarations the father was the son's agent.\\nIf in this case the son was regarded as the real plaintiff it would seem to be inequitable that he should be affected by the declarations of his father at a time when he was in no way the agent or representative of the son. If, however, the father after such declarations became the sole party in'interest to a suit for injuries to the son, a very different case would be presented.\\nIn the case of negotiable paper transferred after it is dishonored, and sued by the endorsee, the declarations of the endorser made while he held the bill or note are admissible against the endorsee, upon the ground that they are the admissions of one under whom the endorsee derives his title. He will not, however, be affected by admissions of the endorser after the transfer, nor by his statements made before he became the holder of the bill or note.\\nIf the endorser retains an interest in the bill or note, as if he has pledged it for less than the amount due, then his declarations made after the transfer may be received to affect his own interest, but not to affect the interest of the endorsee. 1 Greenl. Evi. sec. 190, and notes and cases; Bond v. Fitzpatrick, 4 Gray, 89, 92; Sylvester v. Crapo, 15 Pick. 92.\\nIf a suit is brought by the holder of such bill or note, the defendant, we think, may prove the admissions of such holder, made before as well as after it came into his possession. At common law the defendant could not call the plaintiff to prove the fact so admitted, and it certainly is just that he should be allowed to prove the admissions, nor can we perceive any legal objection to it. On the contrary the general principle is that the admissions of a party against himself are competent, and we are not aware that this is limited to admissions made while he held the claim in question. Whether his admissions shall affect a third person is a very different question as we have already seen.\\nUpon the whole, if under the circumstances the father is to be considered the party in interest here, we are of the opinion that his admissions, though made before he acquired such interest, are competent to be proved by the defendant.\\nThe true rule is, we think, laid down in Plant v. McEwen, 4 Conn. 544, in these words : \\\"On general principles, the declarations and acts of the party of record, whether he had or had not an interest in the subject at the time of making or performing them, are admissible in evidence against himand see Starkie's Evi. 4th part, page 30.\\nThe question is, then, whether the father was to be regarded as the party in interest in this cause. If the disposition of the estate is to be governed by our statute of distributions, then it would seem that the whole estate of the daughter including the claim here in suit would go to the father. It does not appear, however, that the suit is prosecuted by him, nor does it appear that he has the sole interest in it, or that others would not have claims upon the amount recovered, as creditors of the deceased or by way of lien for costs and disbursements in this suit.\\nIn the case of Plant v. McEwen, 4 Conn. 544, before cited, which was a suit upon a probate bond given by the defendant as executor of his father, the plaintiff offered in evidence the acts of the defendant before the testator's death in order to establish a claim against the estate. The evidence was received at the trial, and on motion for a new trial it was held that although the evidence might be competent if it affected the interests of defendant alone, it was not admissible to affect the heirs of the testator, and a new trial was granted.\\nIn Carleton v. Patterson, 29 N. H. 580, which was a suit against an officer for the keeping of property attached by him on mesne process, it was decided that the Admissions of the creditor for whom the attachment was made were not competent without showing that he was the party in interest \\u2014 the party who really carried on the controv.ersy under a party who had no concern in it, and was merely a nominal party, or under one who was fully indemnified. It appeared also that the creditor had appeared specially to defend against the suit being sustained upon a writing between the plaintiff and defendant, on which the court instructed the jury that the suit could not be maintained. The court held the admission was rightly rejected. So in Barker v. Remick, 43 N. H. 235, 239, which was a suit against the sheriff for default of his deputy, it was held that this fact alone did not make the deputy a party, he not having taken upon him the defence.\\nUpon these authorities it does not appear that enough has been shown to give the father the character of a party in interest, or to make his declarations admissible against the administrator or the persons he may represent. Should he be shown to be the party in interest for whose benefit the suit is prosecuted, his admissions would be competent the same as if he were the party of record; for the law, with a view to evidence, regards the real parties. Starkie's Evi. 4ch part, page 31\\u201432, and Carleton v. Patterson, before cited; 1 Greenl, Evi. 180.\\nThe testimony of Dr. Harris, we think, was admissible, and comes within the principles laid down in Jones v. Tucker, 41 N. H. 546. His opinion was about a matter in relation to which inexperienced persons would be unlikely to form a correct judgment without such assistance; and one also, which so far partakes of the .nature of science as to require a course of study and observation to fittain a knowledge of it. The purpose of the testimony was to make it appear that injuries by railroad accidents were more severe than other injuries exhibiting the same external appearance; and to form an intelligent opinion upon the subject a person would need to learn by study or observation the char acter of the various injuries to which the human body is exposed ; and also the circumstances which would tend to aggravate the effects of such injuries, such as a shock to the nervous system caused by the application of great force. It would seem indeed to be quite obvious that there ought to be a course of careful study to enable a person to form a reliable opinion upon the subject. If injuries by railroad accidents are usually attended with great force and violence, such as to affect seriously the nervous system, it might well be that injuries occasioned by such accidents might be more serious than others of the same apparent severity. At all events it is manifest, we think, that the subject is one that needs the aid of scientific study and research in order to form a reliable opinion.\\nIt is often said that a gun shot wound is more serious than a sabre cut of apparently equal severity; but whether it be so or not the experienced surgeon is best fitted to decide, and the same may be said in respect to the matter now in question.\\nUpon the cross-examination of defendants' witness, the foreman of the section where the accident happened by the breaking of a defective rail, the plaintiff was permitted to ask him if he was short of iron at the time of the accident. If the answer showed that no suitable iron was provided to enable the witness to repair the track, and there was evidence tending to show that a new rail was needed, it would certainly be evidence for the jury to consider upon the point of negligence, and the degree of it. If' on the other hand the answer went to show that suitable iron had been provided, the defendants had no cause to complain ; and in either event there was no error.\\nThe great question in the case is upon the instructions to the jury in respect to the duty of the defendants ; the court having apparently an-'i swered that the carriers of passengers by railroad are bound to exercise the highest degree of care and diligence in the conduct of their business, and that they are responsible for the smallest negligence.\\nUpon a careful examination of the authorities we think this general view of the duties of such carriers, taken in the chai-ge, is correct. It is applicable indeed to the carriers of passengers by stage coaches, where the rate of speed is not much above six miles the hour, and it is very obvious that a higher degree of care and skill is demanded in the transportation of passengsrs by steam upon a railroad, where the speed is so much greater.\\nIn the English courts the proprietors of stage coaches are'held to a high degree of card and skill. In Aston v. Heaven et al., 2 Esp. Rep. 533, it was said, per Eyre, O. J., that the driver was answerable for the smallest negligence. In Christie v. Greggs, 2 Camp. 79, it was held that the undertaking of the carrier of passengers went no farther than this, that as far as human care and foresight could go, he would provide for their safe conveyance.\\nIn Crofts v. Waterhouse, 3 Bingh. 319, Best, C. J., lays it down that the coachman must have competent skill, and must use that skill with diligence, must knowNthe road, have steady hoi'ses, and a sufficient coach and harnesses; and ifVthere be the least failure in any one of these things the duty of the coach proprietor is not fulfilled and he is answerable for any injury or damage that may happen.\\nIn Sharp v. Gray, 9 Bing. 457, the case was that the axletree broke in consequence of a defect in the iron, and it was left to the jury to determine whether there had been the vigilance in examining the axletree which was required by the engagement to carry the plaintiff safely; although from the language of the judges it seems to have been understood that the carrier was bound absolutely to see that his coach was road-worthv.\\nIn Brenner v. Williams, 1 C. & P. 414, it was held by Best, C. J., that every coach proprietor warrants to the public that his stage coach is equal to the journey it undertakes, and that it is his duty to examine it previous to the commencement of every journey. See also Israel v. Clark et al, 4 Esp. 259, and 1 Starkie's Rep. 423.\\nThe doctrine of the American courts is still more strict and explicit; and the general current of the authorities is, that the carrier of passed-j gers is bound to the utmost care and diligence of very cautious persons, and is responsible for any, even the smallest, neglect; holding their undertaking to be to carry their passengers with safety as far as human care and foresight can go. This is distinctly laid down in Story on* Bail. sec. 601, 601 a, and also in 2 Grreenl. Evi. sec. 221, and in 2 Kent's Com. *601, *602, and Redfield on Rail., chap. 17.\\nThis, it will be perceived, accords substantially with the definition of the highest degree of care required of bailees of goods, namely, that care and diligence which very prudent persons take of their own concerns. Story on Bail., sec. 16, Jones on Bail., 166, where it is said that slight neglect is the omission of that diligence which very circumspect and thoughtful persons use in securing their own goods and chattels..\\nIt is true that doubts have often been expressed as to the utility of the theory which undertakes to define the degrees of negligence as slight, ordinary and gross, as in Steamboat New World v. King, 16 How. U. S. Rep. 474, and cases cited, where Curtis, J., expresses the opinion that the attempt thus to define the degrees of negligence had better be abandoned. So it is in Briggs v. Taylor, 28 Vt. Rep. 184.\\nBut however this may be, some light may be gained in respect to the duty of carriers of passengers by steam, by considering some of the rules which have governed the courts in relation to bailments.\\nYYhen the contract of bailment is mutually beneficial to both parties, as in the case of bailments for hire, pledges and the like, the bailee has been held for ordinary care; which is defined to be that care which e very person of common prudence and capable of governing a family, takes of his own concerns ; Jones on Bail., section 11, Story on Bail., section 11; while a bailee who alone receives a benefit, as in the case of the borrower, is bound to use extraordinary care.\\nIn the case of the bailee of goods the obligation of care and diligence rises in proportion to the demand for it, although it still is only ordinary diligence that is required; but it is obvious that what will constitute ordinary care will be affected by the nature, bulk and value of the goods bailed, for no one would expect the same care to he taken of a bale of cotton as of a bos of jewelry or other thing peculiarly liable to be stolen or injured.\\nThe case of common carriers of goods is an exception to the general rules applicable to bailments, and they are now regarded as insurers and liable for all losses except such as are caused by the act of God, or by the public enemies, and this is put upon the ground of public policy to guard against both negligence and collusion. Moses v. Boston & Maine Railroad, 24 N. H. 84.\\nUpon grounds of public policy also, the carrier of passengers is bound to exercise the highest degree of care and diligence. To his diligence and fidelity are entrusted the lives and safety of large numbers of human beings. He assumes the trust voluntarily, and for it receives a sufficient compensation ; and we think it very apparent that in no case of the bailment of goods is there so great and imperative a demand for the utmost skill and diligence as from the carrier of passengers ; especially is this true when the passengers are carried upon railroads by steam, for then in consequence of the greater speed the hazards to life and limb are largely increased.\\nIn The Philadelphia & Reading Railway Co. v. Derby, 14 How. U. S. Rep. 486, the court says : \\\" When carriers undertake to convey persons by the powerful but dangerous agency of steam,* public policy and safety require that they should be held to the greatest possible care and diligence, and whether the consideration be pecuniary or otherwise, the personal safety of passengers should not be left to the sport of chance, or the negligence of careless agents; any negligence in such cases may w'ell deserve the epithet of gross ; \\\" and this statement is emphatically endorsed in the case of the Steamboat New World v. King, 16 How. U. S. Rep. 474, as resting not only on public policy but on sound principles of law.\\nIn Redfield on Rail., section 149, note 5, the author says : \\\"If the (degree of care and watchfulness is to be in proportion to the importance it was held that where actual malice is shown the jury may. award exemplary damages, what the defendant ought to pay and the plaintiff ought to receive; and in Symonds v. Carter, 32 N. H. 466, it was held that in an action for slander, increased damages may be awarded for the increased malice and malignity of heart attending the uttering of the words ; and this is a recognition of the doctrine that the jury are not confined to the idea of mere compensation for the injury, but may award damages by way of punishment and example.\\nIn Perkins v. Towle, 43 N. H. 220, it was held that in trespass guare clausum fregit, exemplary damages may be recovered when there arc such circumstances of aggravation, of insult, and of malice, as would wai'rant such recovery in other cases.\\nUpon this review of the adjudged cases in our own State, we might be amply justified in saying that the question was no longer an open one here ; but as the point has been made at the bar, we have examined the decisions elsewhere and are satisfied that there is a great preponderance of authorities in favor of the doctrine adopted in this State.\\nThis doctrine is denied by an eminent jurist, Professor Greenleaf, in bis work on Evidence, vol. 2, sec. 203, in an elaborate note, in which be reviews the authorities, and urges with great force and ability that upon principle, damages should be a just compensation for the injury actually sustained, and neither more nor less; and that to allow a jury to award damages by way of example, and as a punishment for a wrong committed, beyond a just compensation for the injury done to the plaintiff, would be a departure from the true principles upon which damages are awarded, that is not countenanced by the authorities when fairly considered.\\nThe position is that for the legal wrong done to the plaintiff the defendant is bound to make full compensation ; but for the moral wrong, whether it rises to the character of an offence punishable by law or not, he is answerable to society alone; that it is especially unjust to allow the plaintiff to recover damages beyond a fair compensation for the injury by way of punishment for an offence for which the defendant is liable to be punished byr a public prosecution, inasmuch as in that way lie is liable to be punished twice for the same offence.\\nThe views of Professor Greenleaf are also expressed in an. article in the Law Reporter of April, 1847. Theie is also an able article on the same side in 3 Am. Jurist, 287, by Hon. Thomas Metcalf, which seems to have taken the lead in opposition to the doctrine in question. Qn the other hand the subject is very fully discussed and the authorities reviewed by Mr. Sedgwick in his work on Damages, 4th ed. chap. 18, page 454. In chapter 1, page 38, he lays it down that when fraud, malice, gross negligence or oppression mingles with the controversy, the law, instead of adhering to the system or the language of compensation, adopts a wholly different rule. It permits the jury to give what are called punitory, vindictive or exemplary damages ; in other words blends together the interests of society and of the aggrieved individual, and gives damages not only to recompense the sufferer but to punish the offender. See also Mr. Sedgwick's article on the same subject in Law Reporter of June, 1847, in reply to Professor Greenleaf. The general doctrine of Mr. Sedgwick is supported by a great weight of authority. Chancellor Kent in 1 Com. 9th ed., 627, says that it appears to him that the conclusions in Mr. Sedgwick's treatise are well warranted by the decisions, and that the attempt to exclude all consideration of the malice and wickedness and wantonness of the tort, in estimating a proper compensation to the victim is impracticable, visionary, and repugnant to the just feelings of social sympathy.\\nMr. Parsons, in his work on Contracts, 2d vol., page 449, expresses an opinion that the courts of this country generally permit a jury in certain cases to give damages which exceed the measure of legal compensation, and are justified by the principle that one found guilty of so great an offence should be made an example of in order to deter others from the like wrong doing.\\nIn the United States courts the doctrine of Mr. Sedgwick is recognized. In Day v. Wentworth, 13 How. 363, Grier, J., in delivering the opinion of the court, said: \\\" It is a well established principle of the common law that in actions of trespass and all actions on the case for torts, a jury may inflict what are called exemplary, punitive or vindictive damages upon a defendant, having in view the enormity of his of-fence rather than the measure of compensation to the plaintiff. We are aware,\\\" he says, \\\"that the propriety of this doctrine has been questioned by some writers; but if repeated judicial decisions for more than a century are to be received as the best exposition of what the law is, the question will not admit of argument.\\\" As suggested byPe.rley, C. J., in Hopkins v. The At. & St. L. R. R., the allowance of exemplary damages at the suit of a private individual finds countenance in that legislative policy which by giving pecuniary penalties to private prosecutors of certain offences seeks to enlist their aid in enforcing many salutary penal statutes.\\nThat doctrine which allows a jury to award exemplary damages to the sufferer by wrongful acts which the public is strongly interested to punish, stands upon the same footing, so far, at least, as the damages are merely punitory ; and it is quite obvious, we think, that this furnishes the most efficient, if not the only, means of correcting many very serious social.abuses ; and among these, that gross negligence which puts at unnecessary hazard the life and limbs of large numbers of passengers must take a high rank. It is not, therefore, to be regretted that the law has established an exception to the ordinary rule in respect to damages, and armed the sufferer in such cases with the powers to administer a corrective which cannot or will not otherwise be efficiently applied at all.\\nThe doctrine is not the result of direct legislation as is the case with qui tam actions, but we think it has become too firmly established to be shaken without legislative action.\\nIt has been contended that however it may be in cases of fraud, malice and oppression, exemplary damages cannot be awarded for gross negligence merely. It will be observed, however, that it is otherwise settled in this State in the cases of Whipple v. Walpole, and Hopkins v. Atlantic & St. L. R. R., before cited. It is also the doctrine of Sedgwick as before stated. In some cases it has been held that the negligence must be of such a character as to evince a wanton disregard of human.life and safety, equivalent to malice, as in Pickett v. Crook, 20 Wis. 358; Wardrole v. Cal. Stage Co. 7 Cal. 118.\\nIt has been held also that when the public wrong is punishable criminally, exemplary damages ought not to be awarded, upon the ground that if it were otherwise the wrong-doer would be twice punished for the same offence; and this is the doctrine in Massachusetts, Austin v. Wilson, 4 Cush. 273; and in Indiana, Wassauren v. Rickert, 18 Ind. 350; Humphries v. Johnson, 20 Ind. 190. On the other hand, it is held in New York in Cook v. Ellis, 6 Hill, 466, that in trespass for assault and battery the defendant shall not be permitted to prove in mitigation of damages that he has already been convicted and fined for the same offence, and has paid the fine, though it is supposed to be the correct practice to continue the criminal proceeding to await the decision of the civil suit, and then impose a fine in view of it, which is said to be the English practice ; to which authorities are cited. So in Fry v. Bennett, 4 Duer's Rep. 247, which was a suit for a libel in the JSTew York Herald, it was held that plaintiff might recover exemplary damages, although defendant was liable to indictment; and such is the doctrine of Cole v. Tucker, 6 Texas 266. In Corwin v. Walton, 18 Mo. 71, it was held that exemplary damages might be recovered, although defendant had been convicted and fined for the same assault and battery, but that this fact might be considered in mitigation of damages, and also that the court in fixing the amount of the fine might properly consider a recovery in a civil suit. So in Ohio it is held that exemplary damages may be awarded, although defendant may have been prosecuted criminally. Roberts v. Mason, 10 Ohio, (N. S.) 277. See also Sedgwick on Dam. 4th ed. 535, and cases, where the weight of authority is supposed to be against such a limitation. It is not necessary, however, to determine this question as it does not arise on this case. '\\nIt is contended by the defendants that there was no evidence tending to prove gross negligence; there was evidence, however, tending to prove that the accident was caused by the breaking of a rail about two feet from the end where the track was vt -r much curved and about fifteen or twenty feet from Amonoosuck riv and that two passenger cars were thrown part way down the bank; that the rail which broke was inside the curve ; that it was an old rail and appeared very much worn and battered and broomed up from one to two feet from the end ; that it was a U rail, the old style, and that the T rail is the new style ; and that the train was going not over twenty miles the hour. It further appeared that the broken rail was not preserved or produced at the trial, although the defendants offered evidence to show that the breakage was caused by a hidden defect in the rail, which they were not in fault for not detecting.\\nWe are of the opinion, upon the whole, that there was evidence to go to the jury upon the point of gross negligence. It tended to show that the accident was caused by a defective rail, and that this one, at a place somewhat dangerous, was old and very much worn and battered and broomed; and whether there was gross carelessness in permitting that rail to remain under the circumstances was peculiarly for the jury to decide. Upon this point, therefore, we think there was no error; but for error in the instructions there must be\\nA nexo trial.\"}" \ No newline at end of file diff --git a/nh/1051037.json b/nh/1051037.json new file mode 100644 index 0000000000000000000000000000000000000000..f3217794d4000f7824cfa9d64c9f97d334a0af0a --- /dev/null +++ b/nh/1051037.json @@ -0,0 +1 @@ +"{\"id\": \"1051037\", \"name\": \"In the Matter of Irvin D. Gordon and Priscilla M. Gordon\", \"name_abbreviation\": \"In re Gordon\", \"decision_date\": \"2002-05-10\", \"docket_number\": \"No. 2001-047\", \"first_page\": 693, \"last_page\": \"700\", \"citations\": \"147 N.H. 693\", \"volume\": \"147\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Supreme Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-10T21:11:26.300828+00:00\", \"provenance\": \"CAP\", \"judges\": \"Brock, C. J., and Dalianis and Duggan, JJ., concurred.\", \"parties\": \"In the Matter of Irvin D. Gordon and Priscilla M. Gordon\", \"head_matter\": \"Rockingham\\nNo. 2001-047\\nIn the Matter of Irvin D. Gordon and Priscilla M. Gordon\\nArgued: February 13, 2002\\nOpinion Issued: May 10, 2002\\nSheehan Phinney Bass + Green, P.A., of Manchester {James E. Higgins on the brief and orally), for the plaintiff.\\nWiggin & Nourie, PA, of Manchester {L. Jonathan Boss and Doreen F. Connor on the brief, and Ms. Connor orally), for the defendant.\", \"word_count\": \"2644\", \"char_count\": \"16314\", \"text\": \"NADEAU, J.\\nThe plaintiff, Irvin D. Gordon (Husband), appeals certain findings and rulings recommended by the Marital Master {Pamela D. Kelly, Esq.) and approved by the Superior Court {Galway, J.) in his divorce decree. The master found the following facts: Husband and the defendant, Priscilla M. Gordon (Wife), were married in 1986. They have one child together and Wife has two children from a prior marriage. Both parties sought a divorce on grounds of irreconcilable differences.\\nWe will uphold the trial court's findings and rulings unless they lack evidential support or are legally erroneous. See In the Matter of Fowler and Foioler, 145 N.H. 516, 519 (2000). \\\"The trial court has broad discretion in determining and ordering the distribution of property and the payment of alimony in fashioning a final divorce decree.\\\" Id. We will not overturn the trial court's ruling unless its exercise of that discretion is unsustainable. See id.; State v. Lambert, 147 N.H. 295, 296 (2001) (setting forth unsustainable exercise of discretion standard).\\nHusband, an attorney, raises a number of issues on appeal. First, he contends that the master erred in valuing his \\\"ceased member\\\" interest in his law firm. The master found that as a member of his law firm, he would be entitled to receive a \\\"ceased member\\\" interest upon his death or resignation from the firm, in an amount determined under a computation prescribed in the firm's membership agreement. Each party introduced expert testimony as to the value of the ceased member interest. Husband's expert calculated the fair market value of that interest by determining the present value of the three annual payments he expected Husband would receive after his retirement in 2013. He did so by starting with Husband's share of the firm's current valuation, projecting that value forward to 2013, and then discounting back to present value three payments, each one third of the projected future value of Husband's interest in the firm, that he expected him to receive in 2014, 2015 and 2016. The expert also deducted the present value of taxes he expected would be due upon receipt of those payments. He arrived at a value of $25,438.\\nWife's expert, on the other hand, valued Husband's interest as if he were to retire today. He determined a present value of either $184,977 or $166,339, depending upon whether the calculation was made using the firm's tax return or financial statements, respectively. The master accepted the Wife's expert's valuation method. Husband argues that the master erred in valuing his ceased member interest as if he had already retired or died. He notes his uncontradicted testimony that he is in good health and does not intend to leave the firm until 2013. He then contends that \\\"both New Hampshire law . and accepted economic principles\\\" require that his ceased member interest be discounted to reflect the time value of money.\\nHusband correctly notes that courts generally use fair market value in determining an appropriate division of property in divorce proceedings. See Rattee v. Rattee, 146 N.H. 44, 50 (2001). \\\"Fair market value is the price a willing buyer and a willing seller would probably arrive at through fair negotiations, taking into account all considerations that fairly might be brought forward and reasonably be given substantial weight in such bargaining.\\\" Id. (quotation omitted). Husband's expert's valuation method posited a sale to a third party today of his right to receive his ceased member interest in the future. His expert therefore employed a discount factor that reflected the \\\"layers of return\\\" a third-party investor would require to compensate for the risks he was undertaking, such as the risk involved in investing in the equity of a company.\\nWife's expert, on the other hand, reasoned that there is no need to look for a hypothetical willing buyer when Husband's firm is required to \\\"buy\\\" his ceased member interest, at the price determined under the membership agreement, whenever he chooses to withdraw from the firm. Moreover, Husband's expert agreed that he cannot sell his interest in the firm to anyone other than the firm. Both experts testified that he could retire now if he chose to do so, and the master found that he is \\\"entitled to be paid his ceased member's share earlier than his retirement age if he leaves the firm prior to that date.\\\" Although the master found that the membership agreement \\\"provid[ed] substantial disincentives to withdraw and practice law in competition with [the firm],\\\" testimony indicated that it was speculative at best whether and how such disincentives would or could be applied to Husband.\\nWe have adopted the -view that \\\"the trial court has wide discretion in determining the date on which a value should be placed on marital assets.\\\" Hillebrand v. Hillebrand, 130 N.H. 520, 523-24 (1988). We conclude that the trial court sustainably exercised its discretion in valuing Husband's ceased member interest in an amount he could realize today, even though he may choose not to do so. \\\"The fact that an actual sale of [Husband's] interest in the company was not contemplated at the time of the final hearing is irrelevant to the concept of fair market value.\\\" Rattee, 146 N.H. at 51. The court could have found such a valuation more reasonable than one based upon a hypothetical sale that Husband's own expert admitted could not take place. The court also could have found it more equitable to adopt Wife's higher valuation, which Husband has the present ability to realize at his sole election, rather than one severely discounted to reflect future uncertainties and their attendant risks, which, again, are predicated upon Husband's sole election not to retire at the present time.\\nHusband next contends that the master erred by including in the division of his retirement accounts amounts attributable to contributions made prior to the marriage and after the libel for divorce. He argues his retirement accounts, specifically an IRA and a 401(k) account, should have been divided in accordance with the rule developed in Hodgins v. Hodgins, 126 N.H. 711 (1985), and reiterated in subsequent cases, that \\\"only those pension benefits which are attributable to the retiree's employment during the marriage are subject to distribution.\\\" Rothbart v. Rothbart, 141 N.H. 71, 75 (1996) (quotation omitted).\\nWife argues that RSA 458:16-a (Supp. 2001) governs distribution of the retirement accounts. We agree.\\nRSA458:16-a, I, provides:\\nProperty shall include all tangible and intangible property and assets, real or personal, belonging to either or both parties, whether title to the property is held in the name of either or both parties. Intangible property includes, but is not limited to, employment benefits, vested and non-vested pension or other retirement benefits, or savings plans. To the extent permitted by federal law, property shall include military retirement and veterans' disability benefits.\\nSection II then provides, in part, that upon a decree of dissolution of marriage, \\\"the court may order an equitable division of property between the parties.\\\" RSA 458:16-a, II. \\\"When read in conjunction, paragraphs I and II show the legislature's intention that marital property includes any property acquired up to the date of a decree of legal separation or divorce.\\\" Holliday v. Holliday, 139 N.H. 213, 215 (1994). The retirement accounts at issue were acquired prior to the date of divorce. Accordingly, we find no error.\\nHusband next argues that the master erred in excluding Wife's interest in a family trust from the marital estate. The master found that Wife had an interest in a family trust established by her mother, who is now deceased. The master found that her \\\"remainder interest in any assets of this trust is conditioned on her surviving her father, and the trust funds not having been expended for his needs during his lifetime.\\\" The master concluded that her interest in the trust was speculative and did not include it in the marital estate.\\nHusband argues that Wife's interest in the trust should have been included in the marital estate in accordance with Flaherty v. Flaherty, 138 N.H. 337, 340 (1994). We need not address this argument because the master made an alternative ruling, which Husband has not challenged, awarding Wife's interest in her mother's trust \\\"solely to her as a matter of equitable division in this divorce.\\\" Indeed, we note that Husband's own requested findings of fact and rulings of law sought to award Wife \\\"her interest in the Trust from the marital estate, free and clear of any claim of [Husband].\\\"\\nHusband also argues that the master erred in awarding a fund given to Wife by her mother, allegedly for the purpose of paying for the children's higher education, solely to her, while at the same time requiring him alone to pay for their son's college education. Husband argues:\\nIn short, it was error for the master, having accepted Wife's testimony that the A.G. Edwards account funds were to be applied for the \\\"children's\\\" education, to then rule that the funds were to be awarded solely to Wife without any obligation to apply any portion of them for the children's education, while simultaneously shifting responsibility for the parties' son's college education exclusively to the appellant.\\nWe disagree. First, the master did not accept Wife's testimony that the funds \\\"were impressed with an oral trust\\\" for the education of her children from her former marriage. The master found \\\"no circumstantial guarantees of trustworthiness\\\" in her testimony about the oral trust and declined to exclude the funds from the marital estate. The master nevertheless concluded:\\nUnder the circumstances, the fact that the funds represent a gift from a family member in anticipation of death and they have been treated by the parties as separate property compels the master to conclude that they ought to be awarded exclusively to Wife, thus creating an unequal but equitable property division under the provisions of RSA 458:16-a(II)(n).\\nMoreover, we note that Husband himself requested a ruling that the fund be awarded to Wife free and clear of any claim by him. He also testified that he was willing to accept responsibility for his son's higher education. Accordingly, we find no error.\\nHusband next contends that the master erred when, in dividing the parties' property and awarding alimony and child support, she assumed that Wife was entitled to be maintained at the standard of living enjoyed during the marriage irrespective of his available income and standard of living. He argues that no New Hampshire case or statute stands for the proposition that a spouse is entitled to support in order to continue in the standard of living to which she became accustomed during the marriage. Rather, he argues, the \\\"style of living\\\" during the marriage is a circumstance to be taken into account in determining whether the reasonable needs of the party seeking alimony can be met in the absence of alimony. See RSA 458:19,1(a). He also asserts that given the duplication of expenses necessitated by the division of one household into two, it is impossible for both parties to enjoy, post-divorce, the standard of living to which they became accustomed during the marriage.\\nWe first note that the master invoked the marital standard of living only in connection with the award of alimony. We therefore reject Husband's contention that the error he alleges also tainted the division of property and the child support award. We acknowledge that the master stated, quoting Fowler, 145 N.H. at 521, that she \\\"considered that the parties enjoyed a comfortable lifestyle and that Wife is entitled to financial assistance from Husband in order to 'enjoy the standard of living to which she was long accustomed in her marriage.' \\\" We do not, however, interpret this statement as expressing a belief by the master that Husband would have been required, under any circumstances, to maintain Wife at the standard of living enjoyed during the marriage. Rather, the master's recommended order as a whole reveals that the master considered a number of factors, including Wife's need for alimony while pursuing her education, and Husband's current ability to pay alimony. In particular, the court noted that she earns just over $800 a month while his monthly income is approximately $13,000. We detect neither legal error nor an unsustainable exercise of discretion in the master's award of alimony in the amount of $2,000 per month for the first two years after the divorce and $1,000 per month for the following three years.\\nFinally, Husband argues that the master erred in awarding child support by: (1) failing to determine the amount presumptively payable under the child support guidelines set forth in RSA chapter 458-C; and (2) after finding that an adjustment in child support was warranted, failing to make an adequate adjustment.\\nOur child support statute, RSA chapter 458-C, \\\"clearly mandates that the superior court either apply the guidelines to determine the parties' respective support obligations, or make a specific finding on the record that application of the guidelines would be unjust or inappropriate.\\\" Giles v. Giles, 136 N.H. 540, 544 (1992); see also RSA 458-C:4, II. The decree of divorce contains no findings regarding child support, but rather refers to an accompanying uniform support order. The uniform support order, in turn, is a standardized form that provides three choices regarding compliance with the child support guidelines: (1) the award does comply; (2) it cannot be determined whether the award complies because the obligor defaulted and therefore a reasonable estimate of the obligor's income was used; and (3) an adjustment from the guidelines amount was warranted by special circumstances, which are to be explained in the space provided. The third choice was selected and \\\"shared custody\\\" was provided as an explanation.\\nWe hold that this terse explanation, unaccompanied by additional findings, does not satisfy the requirement for a \\\"specific finding on the record that application of the guidelines would be unjust or inappropriate.\\\" Giles, 136 N.H. at 544. We therefore vacate the child support order and remand to the trial court for specific findings explaining whether it finds application of the guidelines unjust or inappropriate, and, if so, explaining any adjustment it makes to the application of the guidelines. See RSA 458-C:5 (Supp. 2001).\\nHusband argues that the trial court also erred in failing to calculate the amount presumptively payable under the child support guidelines. He cites federal regulations governing coverage of state child support enforcement programs under title IV-D of the Social Security Act, which provide in part: \\\"Findings that rebut the guidelines shall state the amount of support that would have been required under the guidelines and include a justification of why the order varies from the guidelines.\\\" 45 C.F.R. \\u00a7 302.56(g) (2001); see also 45 C.F.R. \\u00a7 301.3 (2001). We note, however, that our state statutes do not explicitly require trial courts to calculate the guidelines award before determining that an adjustment would be appropriate. See RSA 458-0:4, II; :5. We nevertheless conclude, irrespective of federal requirements, that a specific finding as to the amount of child support that would be generated under the guidelines will facilitate our review of a finding that application of the guidelines would be unjust or inappropriate. We therefore instruct the court on remand to make a specific finding as to the amount of child support presumptively payable under the guidelines. See RSA 458-C:4, II.\\nBecause we remand the child support issue for further findings, we need not address Husband's remaining arguments on that issue.\\nAffirmed in part; vacated in part; remanded.\\nBrock, C. J., and Dalianis and Duggan, JJ., concurred.\"}" \ No newline at end of file diff --git a/nh/105125.json b/nh/105125.json new file mode 100644 index 0000000000000000000000000000000000000000..a75677b2444ee77f71f7bd6eeede78b76bbfc06c --- /dev/null +++ b/nh/105125.json @@ -0,0 +1 @@ +"{\"id\": \"105125\", \"name\": \"Appeal of Fred Fuller Oil Co., Inc. (New Hampshire Department of Labor)\", \"name_abbreviation\": \"Appeal of Fred Fuller Oil Co.\", \"decision_date\": \"2000-01-31\", \"docket_number\": \"No. 96-667\", \"first_page\": 607, \"last_page\": \"612\", \"citations\": \"144 N.H. 607\", \"volume\": \"144\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Supreme Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-11T00:23:27.412573+00:00\", \"provenance\": \"CAP\", \"judges\": \"All concurred.\", \"parties\": \"Appeal of Fred Fuller Oil Co., Inc. (New Hampshire Department of Labor)\", \"head_matter\": \"Department of Labor\\nNo. 96-667\\nAppeal of Fred Fuller Oil Co., Inc. (New Hampshire Department of Labor)\\nJanuary 31, 2000\\nLeeming & Leeming, of Concord (Simon C. Leeming on the brief and orally), for the petitioner.\\nSoule, Leslie, Kidder, Zelin, Sayward & Loughman, of Salem (Diane M. Gorrow on the brief and orally), for the respondent.\", \"word_count\": \"2179\", \"char_count\": \"13387\", \"text\": \"HORTON, J.\\nThe petitioner, Fred Fuller Oil Company, Inc., (Fuller Oil) appeals the decision of the New Hampshire Department of Labor (DOL) ruling that it violated the Whistleblowers' Protection Act (Act), RSA 275-E-.2 (1999), when it discharged the respondent, Barry S. Leonard, Sr. The DOL ruled that Fuller Oil illegally fired Leonard for reporting what he reasonably believed was a violation of the law. See RSA 275-E:2, 1(a). We vacate and remand.\\nFrom November 1992 until his discharge on January 12, 1996, Leonard was employed by Fuller Oil as a fuel-oil delivery driver. Throughout December 1995 and early January 1996, Leonard worked in excess of sixty hours per week due to harsh weather conditions, which had increased the demand for fuel oil. On January 10, 1996, the Federal Highway Administration of the United States Department of Transportation declared a regional emergency pertaining to the transportation of heating fuels in New Hampshire, thereby suspending certain maximum driving-time limitations for fuel-oil delivery drivers. See 49 C.F.R. \\u00a7 390.23 (1998). Also on that date, Fuller Oil posted a notice at Leonard's place of employment indicating that the company needed volunteer fuel-oil delivery drivers on Sunday, January 14, 1996. The notice did not mention the state of emergency.\\nOn January 12, 1996, a supervisor informed Leonard that all employees would be required to work on January 14 and that any questions should be directed to the president, Fred Fuller. Later that afternoon, Leonard contacted Fuller to inform him that he could not work on that day. At the DOL hearing, Leonard testified:\\n. I told [Fuller] I need a day off, I was tired. My wife was coming down with another MS attack where her eyes get blurry and she was getting really stressed out from all the hours I was working and I need to spend some time with her and I had also planned a snowmobile trip for that Sunday afternoon.\\nLeonard further testified that after he stated that he would not work on Sunday, Fuller told him that if he refused to work on Sunday, he should return the truck and he would be fired. Shortly thereafter, Leonard dropped off his truck and did not return to work.\\nOn March 7, 1996, Leonard filed a whistleblowers' complaint with the DOL, see RSA 275-E.-4, I (1999), alleging that Fuller Oil wrongfully discharged him for reporting its violation of laws and regulations limiting the number of hours commercial drivers may work. See RSA 275-E:2, 1(a).\\nAfter hearing, the DOL issued a decision including findings that Fuller Oil had: (1) violated statutory and regulatory provisions regarding ill or fatigued commercial drivers and the mandatory \\\"day of rest\\\" for commercial drivers; and (2) discharged Leonard for his refusal to deliver oil on January 14. The DOL ruled that Fuller Oil had violated RSA 275-E:2 by discharging Leonard for reporting what he believed to be Fuller Oil's violations of law. The DOL reinstated Leonard's employment with Fuller Oil retroactive to January 12, 1996, and ordered the payment of all past wages and fringe benefits and restoration of seniority rights.\\nOn appeal, Fuller Oil argues that the DOL erred in: (1) finding that Fuller Oil required Leonard to \\\"execute a directive which . . . violates any law or rule,\\\" RSA 275-E:3 (1999); (2) ruling that Leonard was terminated for \\\"reporting\\\" a violation when the purported report did not include a reference to a \\\"violation of any law or rule,\\\" RSA 275-E:2, 1(a); (3) ruling that Fuller Oil violated the Act when Leonard had not satisfied the factual predicates necessary to invoke its protections, see RSA 275-E:2, II, :4, I; and (4) denying rehearing pursuant to RSA 541:3 (1997). Fuller Oil also argues that the decision of the DOL was clearly unreasonable, unlawful, and unjust.\\nWe will not set aside an order of the DOL except for errors of law, unless we are satisfied, by a clear preponderance of the evidence, that such order is unjust or unreasonable. See RSA 541:13 (1997). The agency's findings of fact are deemed prima facie lawful and reasonable. See id. \\\"This presumption may be overcome only by a showing that there was no evidence from which the [agency] could conclude as it did.\\\" Appeal of Briand, 138 N.H. 555, 558, 644 A.2d 47, 49 (1994).\\nWe begin our analysis with the observation that, as it relates to this case, the Act protects two distinct activities on the part of employees. RSA 275-E:2, 1(a) (section two) prohibits an employer from terminating an employee who reports what the employee reasonably believes is illegal activity. RSA 275-E:3 (section three) prohibits an employer from terminating an employee who refuses to follow an illegal directive.\\nLeonard brought his complaint against Fuller Oil under section two, alleging that he was fired for reporting Fuller Oil's violation of statutes and regulations limiting the number of hours a commercial driver may work. The DOL hearing officer who heard the case expressly decided the case under section two, concluding that Leonard \\\"was illegally discharged as a result of his reporting of what he reasonably believed was a violation of the law.\\\" The hearing officer's primary findings, however, related to section three: \\\"[T]he claimant. . . was actively discharged for his failure to make fuel oil deliveries in violation of RSA 275:33 [(1999) (the 'day of rest' statute)] and [49 C.F.R. \\u00a7 392.3 (1998) (the federal 'ill or fatigued operator' regulation)].\\\"\\nLeonard conceded at oral argument that he brought his complaint below exclusively under section two and that he had raised issues relating to the illegality of Fuller Oil's actions only to establish his \\\"reasonable cause to believe\\\" that the actions he reported were, indeed, violations of the law. RSA 275-E:2, 1(a). In light of this concession and the fact that Leonard did not complain of a section three violation below, we need not address Fuller Oil's first argument.\\nFuller Oil's second argument is that Leonard's complaint to Fred Fuller did not constitute a \\\"report\\\" under section two, which provides, in pertinent part:\\nI. No employer shall discharge, threaten, or otherwise discriminate against any employee regarding such employee's compensation, terms, conditions, location, or privileges of employment because:\\n(a) The employee, in good faith, reports or causes to be reported, verbally or in writing, what the employee has reasonable cause to believe is a violation of any law or rule adopted under the laws of this state, a political subdivision of this state, or the United States .\\nRSA 275-E:2, I.\\nFuller Oil contends that Leonard's subjective complaints to Fuller, without reference to any \\\"violation of any law or rule,\\\" do not constitute a \\\"report\\\" under section two. According to Fuller Oil, although citation to a particular statute or regulation is not necessary, an employer must be put on notice that the employee is blowing the whistle by objective reference to violation of a law. Leonard, on the other hand, maintains that an employee is not required to refer to a violation of the law, but rather satisfies the requirements of a report if he or she raises a concern that implicates a law. Thus, Leonard argues that his statement to Fuller, \\\"I need[ed] a day off, I was tired,\\\" is sufficient to constitute a report under RSA 275-E:2, 1(a).\\nThe Act does not defin\\u00e9 what constitutes a \\\"report,\\\" nor have we previously been called upon to decide its parameters. The statute does not expressly require a reporting employee to cite to the alleged violation, and a survey of jurisdictions employing whistleblower protection statutes similar to our own reveals no requirement that an employee's report include such a reference to a violation of law. See, e.g., Marques v. Fitzgerald, 99 F.3d 1, 6 (1st Cir. 1996) (jury could find that employee's safety complaints, which did not include reference to a violation, constituted a report under Rhode Island's whistleblower protection statute). Indeed, to impose such a requirement would exclude an unsophisticated employee from the protections of the Act simply because he or she failed to invoke a specific law that the employer has allegedly violated. We conclude that the better approach is to presume that an employer is familiar with the laws and regulations governing its business and to consider a report to have been made if a reasonable employer would have understood from an employee's complaint that the employee was reciting a violation of law.\\nHaving clarified the standard for \\\"reporting\\\" under section two, we now turn to the question of whether the hearing officer properly determined that Fuller Oil violated section two and conclude that he did not. Although explicitly concluding that Fuller Oil violated section two of the Act, the hearing officer made findings which support only a section three violation. He found that Fuller Oil discharged Leonard for \\\"failure to make fuel oil deliveries,\\\" but made no factual findings supporting his conclusion that Fuller Oil discharged Leonard for reporting what Leonard believed to be Fuller Oil's violation of the law. Specifically, the hearing officer made no finding that Leonard reported violations to Fuller Oil. Nor did he make findings to support a determination that Leonard's termination resulted from his report. See RSA 275-E:2,1 (requiring that the discharge be \\\"because: . . . [t]he employee . . . reports . a violation\\\"); accord, Marques, 99 F.3d at 4 (construing Rhode Island statute to require that \\\"an employee must demonstrate that there was a causal connection between the report and the termination\\\"); Bard v. Bath Iron Works Corp., 590 A.2d 152, 154 (Me. 1991) (noting that a prima facie case of retaliation in violation of Maine statute requires causal link between the employee's reporting and the termination).\\nBecause the hearing officer failed to make findings that Leonard reported what he reasonably believed to be violations and that Filler Oil discharged Leonard as a result of Leonard's reporting, we vacate the DOL's decision and remand for such further proceedings as the DOL should deem necessary.\\nFuller Oil next argues that the hearing officer erred in concluding that Fuller Oil violated section two when Leonard had not satisfied the factual predicates of a claim under that section. RSA 275-E:2, II provides that an employee is not entitled to the protections of section two \\\"unless the employee first br[ings] the alleged violation to the attention of a person having supervisory authority with the employer, and then allow[s] the employer a reasonable opportunity to correct that violation.\\\"\\nAs explained in Appeal of Bio Energy, 135 N.H. 517, 607 A.2d 606 (1992), the Act contemplates a series of events: notice to the employer of a violation; followed by an opportunity for the employer to remedy the violation; and, ultimately, if necessary, report of the violation to a higher authority. Id. at 519-21, 607 A.2d at 608-09. In that case, we concluded that in order \\\"to promote the dual purposes-of the Act \\u2014 to encourage employees to come forward and report violations without fear of losing their jobs and to ensure that as many alleged violations as possible are resolved informally within the workplace,\\\" the employee is protected at the time he or she \\\"begins the process of complying with the Act, as specified in RSA 275-E:2, II.\\\" Id. at 521, 607 A.2d at 609.\\nIn the case before us, Leonard complained to Fred Fuller, the president of the company, unquestionably a \\\"person having supervisory authority with the employer,\\\" as required by RSA 275-E:2, II. He thus began the process of complying with the Act, thereby availing himself of its protections. See id. The fact that he was terminated immediately before being able to complete the process, does not justify the withholding of the Act's protections here any more than it did in Appeal of Bio Energy. We therefore conclude that Leonard satisfied the requirements of RSA 275-E:2, II.\\nFuller Oil also argues that Leonard did not satisfy the requirements of RSA 275-E:4, I, which provides that an employee seeking a DOL hearing under either section two or section three must \\\"first ma[ke] a reasonable effort to maintain or restore such employee's rights through any grievance procedure or similar process available at such employee's place of employment.\\\" Fuller Oil contends that although the hearing officer found that \\\"the employer had no written grievance procedure,\\\" such finding is not dispositive of the issue of whether there existed \\\"any grievance procedure or similar process\\\" in light of testimony regarding. Fuller's \\\"open door policy.\\\"\\nBecause we remand on other grounds, we need not determine whether the hearing officer's findings on this issue are sufficient. Upon remand, the hearing officer may make further findings and rulings with respect to whether Leonard satisfied his obligations under RSA 275-E.-4, I.\\nIn light of our disposition of this case, we need not address the parties' further arguments.\\nVacated and remanded.\\nAll concurred.\"}" \ No newline at end of file diff --git a/nh/105289.json b/nh/105289.json new file mode 100644 index 0000000000000000000000000000000000000000..58d64d9339e6717de93980746e50adfad32c3abb --- /dev/null +++ b/nh/105289.json @@ -0,0 +1 @@ +"{\"id\": \"105289\", \"name\": \"Appeal of Amalgamated Transit Union, Local 717 (New Hampshire Public Employee Labor Relations Board)\", \"name_abbreviation\": \"Appeal of Amalgamated Transit Union, Local 717\", \"decision_date\": \"1999-11-23\", \"docket_number\": \"No. 98-038\", \"first_page\": 325, \"last_page\": \"330\", \"citations\": \"144 N.H. 325\", \"volume\": \"144\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Supreme Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-11T00:23:27.412573+00:00\", \"provenance\": \"CAP\", \"judges\": \"All concurred.\", \"parties\": \"Appeal of Amalgamated Transit Union, Local 717 (New Hampshire Public Employee Labor Relations Board)\", \"head_matter\": \"Public Employee Labor Relations Board\\nNo. 98-038\\nAppeal of Amalgamated Transit Union, Local 717 (New Hampshire Public Employee Labor Relations Board)\\nNovember 23, 1999\\nCraig, Wenners & Craig, P.A., of Manchester ('Vincent A. Wenners, Jr. and Stephanie Stergiou Ferro on the brief, and Mr. Wenners orally), for the petitioner.\\nDevine, Millimet & Branch, P.A., of Manchester (Diane Murphy Quinlan and John E. Friberg, Jr. on the brief, and Mark T. Broth orally), for the respondent, Manchester Transit Authority.\", \"word_count\": \"1928\", \"char_count\": \"12375\", \"text\": \"JOHNSON, J.\\nThe petitioner, Amalgamated Transit Union, Local 717 (union), appeals a decision of the public employee labor relations board (PELRB), in which the PELRB refused to implement an arbitrator's award ordering the respondent, the Manchester Transit Authority (MTA), to reinstate two union employees to their positions after testing positive for drug use by vacating the arbitrator's award. We affirm and remand.\\nThe MTA is a public employer of driver-operators, mechanics, maintenance personnel, and other employees. The union is the duly certified bargaining unit for MTA employees. The MTA and the union entered into a collective bargaining agreement (CBA) that included a grievance process concluding with final and binding arbitration.\\nThe arbitrator found the following facts. In addition to providing general passenger service on established bus routes, the MTA provides bus services under a contract with the Manchester School District for students in the Manchester public schools. MTA buses used for school purposes carry signs indicating that the buses are within a drug-free zone. See RSA 193-B:1, :2 (Supp. 1998).\\nTed Urban was employed in the summer of 1992 as a mechanic at the MTA garage. His duties included bus repair and maintenance, retrieval of broken buses, and plowing snow with a large dump truck at the garage lot. Urban tested positive for marijuana in a random drug test. He was suspended on June 26, 1995, and was advised that, under federal regulations issued under the Omnibus Transportation Employee Testing Act of 1991, he would be randomly tested six times in the next year and that he would be terminated if he tested positive a second time. On April 3, 1996, Urban again tested positive. He was suspended on April 11, 1996, when the employer learned he tested positive, and on May 22, 1996, was terminated by the MTA.\\nDave Conway was hired by the MTA in September 1985 and worked as a bus driver. Except for one minor, non-drug-related incident in 1987, Conway had a clean disciplinary record with the MTA. Conway's name was randomly selected by computer, and he was taken while driving his route on May 26, 1996, and tested for drug use. On June 6, 1996, the MTA suspended him because his test results were positive for canniboids, and ultimately terminated Conway on June 19, 1996. Conway acknowledged that he smoked a marijuana cigarette the weekend before he was tested.\\nThe arbitrator also found that in 1990, the MTA \\\"adopted a policy stating that use of drugs in the workplace was prohibited and that employees who violated the policy were subject to discipline up to termination.\\\" Not until June 26, 1996, however, did the MTA adopt a formal \\\"zero tolerance\\\" drug policy requiring discharge on the first incident of an employee testing positive for drugs.\\nIn February and March of 1997, an arbitrator heard the grievances filed in the Urban and Conway discharges. In both cases, the issues involved whether each employee was discharged for just cause. The arbitrator found that \\\"[n]either grievant was tested because of alleged impairment in his job performance, and there is no evidence that either grievant was at any time impaired because of drug use.\\\"\\nThe arbitrator reversed the disciplinary terminations in both cases for several reasons. First, the MTA's \\\"zero tolerance\\\" drug policy, adopted on June 26, 1996, was not in effect when either Urban or Conway was discharged. Second, with respect to the Conway matter, termination after testing positive once was inconsistent with the CBA provision that declared \\\"when discipline is to be given, it shall be given in a fair and progressive manner for repeated offenses.\\\" Third, the Manchester School District merely prohibits \\\"[a]ny one, including bus drivers and monitors, caught under the influence (even once)\\\" from interacting with students. Fourth, the arbitrator found that neither employee was under the influence while on the job. Fifth, federal transportation regulations \\\"do not prescribe the level of discipline to be imposed when an employee tests positive for drugs on one occasion without any evidence of impairment.\\\" Finally, the arbitrator found that the MTA failed to discipline the employees within the time period prescribed in the CBA.\\nWe need not decide whether the MTA's actions in disciplining these employees contravened the express language of the limitations period outlined in the CBA because, even if it did, we hold that strong public policy would prevent enforcement of that CBA provision.\\nThe arbitrator found that there was \\\"no evidence that either grievant was at any time impaired because of drug use,\\\" and ordered the MTA to reinstate the employees to their former positions. The MTA filed an unfair labor practice (ULP) complaint with the PELRB based on the arbitrator's award reinstating the two employees, and the union cross-complained that the MTA committed an ULP by rejecting the arbitrator's decision. The PELRB found the union committed an ULP because the arbitrator's award was contrary to public policy, vacated the arbitrator's award, and dismissed the union's ULP claim. The PELRB found that \\\"in 1990, the [MTA] had adopted a policy prohibiting the use of drugs in the workplace and stating that violators were subject to discipline up to termination.\\\"\\n\\\"[A]dministrative agencies are granted only limited and special subject matter jurisdiction____\\\" 4 R. WlEBUSCH, NEW Hampshire Practice, Civil Practice and Procedure \\u00a7 1.03, at 3 (2d ed. 1997). Because administrative agencies act in a quasi-judicial capacity, see Gould v. Director, N.H. Div. of Motor Vehicles, 138 N.H. 343, 347, 639 A.2d 254, 257-58 (1994), agencies inherently have limited jurisdiction to apply strong and dominant public policy as expressed in controlling statutes, regulations, common law, and other applicable authority, to address matters necessary to resolve questions arising within the scope of their jurisdiction. Just as this court \\\"will not enforce a contract or contract term that contravenes public policy,\\\" Harper v. Healthsource New Hampshire, 140 N.H. 770, 775, 674 A.2d 962, 965 (1996), agencies may, within the confines outlined above, do the same. Here, the PELRB recognized a well-established public policy in overruling the arbitrator.\\nRelying on the dominant public policy against employees in safety-sensitive positions testing positive for drugs discussed in Exxon Corp. v. Esso Workers' Union, Inc., 118 F.3d 841, 848 (1st Cir. 1997), the PELRB ruled that the arbitrator's award could not be enforced because it violates clearly defined public policy. On appeal, the union argues that the arbitrator's award should be enforced because termination is inconsistent with the progressive discipline system established in the CBA, and with the arbitrator's finding that neither employee was impaired while working. After extensive discussion and review of applicable federal statutes, the First Circuit identified a dominant public policy against allowing employees who test positive for drug usage to perform safety-sensitive positions. See Exxon Corp., 118 F.3d at 846-48. We agree with the First Circuit's determination.\\nHaving found that a dominant public policy prohibits reinstatement to a safety-sensitive position, we next determine whether the arbitrator's award violates that policy. The union's argument parallels the argument made by the defendant union in Exxon Corp. In Exxon Corp., a truck driver who tested positive for cocaine usage was dismissed under an established CBA provision allowing discharge for that offense. Id. at 843-44. In both the instant case and Exxon Corp., the union argued that the employee should not be disciplined absent evidence of job-related impairment. Although the employee was terminated in Exxon Corp. because there was a specific CBA provision allowing for termination, we agree with the First Circuit's rationale and reject the union's position in the instant case that the employees should be reinstated absent evidence of job-related impairment. As the First Circuit stated:\\nAccording to the Union, the positive result of [the employee's] random drug test \\\"merely\\\" indicates the presence of cocaine in his bloodstream; it does not necessarily signify that [the employee] was under the influence . . . either at the time of the test or at the time he [was performing his work].\\nThe Union casts this argument so narrowly that it misses the mark. Relying upon the job-relatedness as the sole determina tive factor in permitting employers to discharge employees who test positive for drug use would force employers to wait for some other consequential indication that drugs are affecting work performance. Typically, this other indication will be an accident. The notorious mishap involving the Exxon Valdez, which produced vast environmental devastation, highlights the core problem associated with this \\\"wait-and-see\\\" approach. If we have learned anything from such catastrophes, it is that employers must act affirmatively to avoid drug-related accidents rather than wait passively for such accidents to happen.\\nId. at 849 (citations omitted). In the context of this case, implementation of the arbitrator's award would place two public transit employees \\u2014 one a driver and the other a mechanic \\u2014 back in safety-sensitive positions after testing positive for drugs. The union's argument that the MTA should reinstate the employees because there was no evidence of job-related impairment is incredible. Strong public policy may override the terms of a CBA, cf. Paperworkers v. Misco, Inc., 484 U.S. 29, 42-43 (1987), and such a policy prevents reinstatement of these two employees to their positions without a further determination that the employees have ceased drug usage. Cf. Exxon Corp., 118 F.3d at 849. The safety of students and other passengers who rely on MTA transportation on a daily basis cannot be held hostage to the employees' assertion of no job-related impairment. Implementation of the arbitrator's award would allow public transit employees testing positive for drugs to remain in their safety-sensitive positions until the employee was actually impaired on the job, foreseeably evidenced by an accident resulting in a catastrophic loss of life. Although strong public policy prohibits reinstatement without evidence of successful treatment for their drug usage, we agree with the arbitrator that neither the CBA nor dominant public policy prescribes any particular remedy for testing positive for drugs.\\nAbsent a clearly defined zero-tolerance drug policy, such as the 1996 \\\"zero-tolerance\\\" drug policy adopted after the discharges, no dominant public policy compels termination after a positive drug test. Cf. Exxon Corp., 118 F.3d at 849. Although we agree with the PELRB's determination that the arbitrator's decision violated strong public policy by ordering reinstatement and would constitute an ULP if enforced, that same policy preventing reinstatement does not automatically require termination. We do not hold that termination is inappropriate; we hold only that automatic termination is inappropriate simply because the arbitrator's award violates strong public policy. Our review of the record does not reveal that the PELRB considered the appropriate remedy in light of the CBA. The CBA is not before us, and the parties do not argue whether the remedy should be determined by the arbitrator or the PELRB. Thus, we express no opinion on the appropriate remedy, or who should determine it. Accordingly, we remand for a determination of an appropriate remedy. See RSA 273-A.-6 (Supp. 1998).\\nWe have reviewed the record with respect to the union's remaining arguments and find them to be without merit and warranting no further discussion. See Vogel v. Vogel, 137 N.H. 321, 322, 627 A.2d 595, 596 (1993).\\nAffirmed and remanded.\\nAll concurred.\"}" \ No newline at end of file diff --git a/nh/11250227.json b/nh/11250227.json new file mode 100644 index 0000000000000000000000000000000000000000..c47a6fbb6011b0766851c2045856eb48d979bad9 --- /dev/null +++ b/nh/11250227.json @@ -0,0 +1 @@ +"{\"id\": \"11250227\", \"name\": \"State v. Hurd\", \"name_abbreviation\": \"State v. Hurd\", \"decision_date\": \"1871-06\", \"docket_number\": \"\", \"first_page\": 176, \"last_page\": \"177\", \"citations\": \"51 N.H. 176\", \"volume\": \"51\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Supreme Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-10T18:40:38.637244+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"State v. Hurd.\", \"head_matter\": \"State v. Hurd.\\nUnder Gen. Stats., ch. 262, sec. 1, which imposes a penalty upon any per- ' son who \\u201c shall wilfully and maliciously burn any dwelling-house,\\u201d an indictment is good which charges the defendant with feloniously, wil-fully, and maliciously burning his own dwelling-house.\\nIkdictment, for wilfully and maliciously burning the dwelling-house of the defendant. Motion in arrest of judgment.\\nWoodward Wellington, for the defendant.\\nColby, solicitor, for the State.\", \"word_count\": \"534\", \"char_count\": \"3118\", \"text\": \"Doe, J.\\nSection 1 of ch. 262, Gen. Stats., provides that \\\" If any person shall wilfully and maliciously burn any dwelling-house,\\\" he shall be punished. The title of the chapter is \\\"Arson and Burning Property.\\\" The index or table of contents placed at the head of the chapter, and repeated in the margin at the side of the several sections, gives \\\"arson, how punished,\\\" as a brief statement or head-note of section 1; and the defendant contends that this index shows that the crime intended in section 1 is arson in its common law'sense, and consequently that the dwelling-house must be the dwelling-house of some other person than the defendant.\\n\\\" Murder,\\\" in chapter 264, is the technical term of the common law, and it carries into the statute- the common law definition of the term. But in section 1 of chapter 262, the word \\\" arson \\\" is not used, nor any equivalent; and the index at the head of the chapter cannot be wholly relied upon as an accurate designation of the subject-matter of legislation, although some aid might perhaps be derived from it in the interpretation of an ambiguous section. The index or heading of section 2 of chapter 261 is \\\" Burglary with intent to commit other crime ; \\\" and the section itself is, \\\" If any person shall, in the nighttime, break and enter any dwelling-house, office, bank, shop, store, or Avareliouse, or any vessel,\\\" &c. \\\"When the term \\\"burglary\\\" is used in the heading of a statute in a sense so much broader than its common law signification, it cannot be presumed, from the mere use of the word \\\" arson \\\" in the heading of the next chapter, that common law arson is intended to be expressed.\\nA man may maliciously beat his own horse,\\u2014State v. Avery, 44 N. H. 392,\\u2014and he may maliciously burn his own dwelling. If he burns it for the purpose of destroying the home and lives of his wife and children, when they happen without his knowledge to be absent, the burning may be malicious: and there may be malice in other cases. The legislature might well have intended to provide for such cases, and to remedy a defect of the common law, which has been cured by statute in England. The omission of the terms \\\" arson\\\" and \\\" of the property of another,\\\" in the body of the statute, may well be taken as an intentional remedy of that defect, making section 1 to include not \\u2022merely common law arson, but something more. In a condensed .enumeration of the contents of the chapter,the word \\\"arson\\\" might well enough be used as an abbreviated expression to answer the practical purpose of conveying a general, though not a complete and precise, idea of the subject-matter of section 1.\\nMotion denied.\"}" \ No newline at end of file diff --git a/nh/1192857.json b/nh/1192857.json new file mode 100644 index 0000000000000000000000000000000000000000..e63ea53d7d05302cf2cb24044843a8b5bd885091 --- /dev/null +++ b/nh/1192857.json @@ -0,0 +1 @@ +"{\"id\": \"1192857\", \"name\": \"John Furbush v. J. Joseph McKittrick\", \"name_abbreviation\": \"Furbush v. McKittrick\", \"decision_date\": \"2003-04-29\", \"docket_number\": \"No. 2002-188\", \"first_page\": 426, \"last_page\": \"433\", \"citations\": \"149 N.H. 426\", \"volume\": \"149\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Supreme Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-10T19:29:43.110587+00:00\", \"provenance\": \"CAP\", \"judges\": \"Broderick, Nadeau and Duggan, JJ., concurred.\", \"parties\": \"John Furbush v. J. Joseph McKittrick\", \"head_matter\": \"Strafford\\nNo. 2002-188\\nJohn Furbush v. J. Joseph McKittrick\\nArgued: March 12, 2003\\nOpinion Issued: April 29, 2003\\nLaw Office of Leslie H. Johnson, PLLC, of Center Sandwich (Leslie H. Johnson on the brief and orally), and McKean, Mattison & Latid P.A., of Gilford (Edgar D. McKean, III on the brief), for the plaintiff.\\nNelson, Kinder, Mosseau & Saturley, P.C., of Manchester (William\\\\ C. Saturley and Catherine A Blanchard on the brief, and John Kissinger orally), for the defendant.\", \"word_count\": \"2566\", \"char_count\": \"15894\", \"text\": \"Dalianis, J.\\nThe plaintiff, John Furbush, appeals following a jury verdict in favor of the defendant, J. Joseph McKittrick. On appeal, the plaintiff argues that the Superior Court (Mohl, J.) erred by granting the defendant's motion for summary judgment on count IV of his malpractice claim and denying the plaintiff's motion for summary judgment on count III. The defendant cross-appeals, arguing that the trial court erroneously excluded certain evidence during trial. Because we affirm, we need not reach the merits of the defendant's appeal.\\nOn December 15, 1989, the plaintiff, a New Hampshire resident, was injured while working as a welder for National Engineering Services at a job site in Connecticut. He began collecting workers' compensation benefits under the laws of New Hampshire, and was represented by Attorney John Lyons with regard to those benefits. Lyons did not represent the plaintiff regarding any possible third-party claims, but recommended that the plaintiff consult Connecticut counsel about such a claim and provided the name of a Connecticut law firm. The plaintiff contacted the firm in January 1990 and was sent a fee agreement but did not pursue the matter with the firm any further. Lyons withdrew from representing the plaintiff.\\nIn June 1990, the plaintiff hired the defendant to represent him. The parties dispute the scope of the defendant's representation. According to the defendant, his representation of the plaintiff initially involved only the workers' compensation claim. The defendant claims that the first time the plaintiff inquired about a possible third-party claim was in or around November 1992. However, according to the plaintiff, he hired the defendant to represent him with regard to all claims associated with his injury, and asked the defendant on many occasions about the possibility of pursuing a third-party claim in Connecticut.\\nOn November 17,1992, the defendant sent the plaintiff a letter in which he explained that the Connecticut statute of limitations for negligence claims was two years, and stated:\\nMost claims against the owner of a site upon which a Workers'] Compensation injury occurred are simple negligence claims. In this case, such a claim would be barred, as it was not brought before January 15, 1991. In order to pursue a claim for a deliberate tort, or a product liability tort, we must have specific information regarding the job site and/or the actions of the owner of the site itself.\\n. [I]f you have any additional information, such as I have outlined above, it is critical that you get it to me within the next week or ten (10) days in order that we may have time to draft the appropriate documents and get them served upon a third party. However, if you cannot handle this matter at this time, you will still be fully protected under your Worker[s'] Compensation claim.\\nThe defendant continued to represent the plaintiff until April 1996, soon after the plaintiff settled his workers' compensation case that was pending before the New Hampshire Department of Labor. Thereafter, the plaintiff consulted another attorney regarding his Social Security disability benefits. In October 1996, this attorney alerted the plaintiff to possible malpractice committed by the defendant.\\nIn February 1998, the plaintiff brought a legal malpractice claim consisting of five counts, three of which were dismissed and are not at issue here. In count IV, the plaintiff alleged that the defendant was negligent in failing to advise the plaintiff to file a third-party claim prior to the expiration of the Connecticut statute of limitations. In count III, the plaintiff alleged that the defendant negligently failed to conduct a choice of forum analysis to determine which State's law, New Hampshire or Connecticut, would provide him more workers' compensation benefits.\\nThe defendant filed a motion for summary judgment on count IV, arguing that the New Hampshire statute of limitations barred the claim because it was not filed within three years of the alleged malpractice. The defendant did not contest the timeliness of count III of the plaintiffs claim. The plaintiff filed a motion for summary judgment on count III, arguing that the trial court should rule, as a matter of law, that the defendant's conduct constituted malpractice. The trial court granted the defendant's motion to dismiss count IV and denied the plaintiffs motion for summary judgment on count III. The jury subsequently returned a verdict in favor of the defendant on count III. This appeal followed.\\nOn appeal, the plaintiff argues that the trial court erred in both summary judgment rulings. In reviewing a trial court's summary judgment ruling, we consider the affidavits and other evidence, and all inferences properly drawn from them, in the light most favorable to the non-moving party. Sintros v. Hamon, 148 N.H. 478, 480 (2002). \\\"Summary judgment may be granted only where no genuine issue of material fact is present, and the moving party is entitled to judgment as a matter of law.\\\" Winnacunnet Coop. Sch. Dist. v. Town of Seabrook, 148 N.H. 519, 524 (2002) (quotation omitted). We review the trial court's application of the law to the facts de novo. Coyle v. Battles, 147 N.H. 98, 100 (2001).\\nWe initially address the plaintiffs arguments regarding the trial court's grant of summary judgment in favor of the defendant on count IV. The plaintiff first argues that the trial court erred by granting the defendant's motion without holding an evidentiary hearing. This argument is without merit. According to RSA 491:8-a, a motion for summary judgment may be rendered upon \\\"the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits filed.\\\" RSA 491:8-a, III (1997). The trial court is not required by statute to hold a hearing prior to ruling on a summary judgment motion. See id. Rather, under Superior Court Rule 58, the party seeking a hearing on an objection to a motion must request one within ten days after the filing of the motion. See SUPER. Ct. R. 58. The trial court then has discretion to grant or deny the request. State v. Roy, 138 N.H. 97, 98 (1993). If the opposing party fails to request a hearing, however, the court may act on the motion on the basis of the pleadings and record before it. SUPER. CT. R. 58. Here, the plaintiff never requested that the trial court hold a hearing, and thus the court was free to act on the defendant's motion.\\nThe plaintiff next argues that the trial court erred by granting the defendant's motion for summary judgment because an exception applied to toll the statute of limitations until at least April 1996. The statute of limitations for a malpractice action is three years. See RSA 508:4 (1997). It is undisputed that the plaintiff's malpractice suit was filed more than three years after the plaintiff suffered the loss of his potential third-party claim. Thus, the plaintiff has the burden of proving that an exception applies to toll the statute of limitations such that his malpractice claim would be timely filed. See Glines v. Bruk, 140 N.H. 180, 181 (1995); see also Evans v. Rudy-Luther Toyota, Inc., 39 F. Supp. 2d 1177, 1184 (D. Minn. 1999).\\nThe first exception raised by the plaintiff is the discovery rule. The discovery rule, now codified in RSA 508:4, I, see Conrad v. Hazen, 140 N.H. 249, 251 (1995), states that\\nwhen the injury and its causal relationship to the act or omission were not discovered and could not reasonably have been discovered at the time of the act or omission, the action shall be commenced within 3 years of the time the plaintiff discovers, or in the exercise of reasonable diligence should have discovered, the injury and its causal relationship to the act or omission complained of.\\nRSA 508:4,1.\\nThe plaintiff argues that he could not have discovered that he suffered any financial injury from the loss of his potential third-party claim until 1996 when his new attorney advised him of the defendant's potential malpractice. The trial court held, however, that the discovery rule did not toll the statute of limitations until 1996 because the defendant's November 1992 letter \\\"specifically informed the plaintiff\\\" of the loss of his potential third-party negligence claim and the defendant's potential malpractice. We agree. In his letter, the defendant explained the Connecticut statute of limitations for negligence claims, and stated, \\\"In this case, such a claim would be barred, as it was not brought before January 15, 1991.\\\" The letter informs the plaintiff of both the injury \\u2014 the loss of his third-party claim \\u2014 and the causal relationship between the injury and the failure to file the claim in a timely manner.\\nWe are not persuaded by the plaintiffs argument that the defendant's letter falsely indicated that he suffered no harm from the inability to file the third-party claim. The plaintiff points to the portion of the letter where the defendant states that the plaintiff \\\"will still be fully protected under your Workers'] Compensation claim,\\\" and argues that he reasonably thought that he would be fully compensated as to all claims under the workers' compensation claim because he did not appreciate the difference between the workers' compensation and third-party claims. The portion of the letter upon which the plaintiff relies does not state that the plaintiff was not harmed by the loss of his third-party claim, but rather simply explains that the inability to file the third-party claim in no way endangered his workers' compensation claim.\\nMoreover, the record shows that the plaintiff was aware of the difference between a workers' compensation and third-party claim. While his workers' compensation claim was pending, the plaintiff contacted Connecticut counsel in order to pursue a third-party claim and, on at least one occasion, asked the defendant about the potential for filing such a claim. The plaintiff's actions demonstrate that he understood the possible benefit of filing a third-party claim in addition to his workers' compensation claim, and, therefore, could appreciate that he suffered some harm from the inability to do so. While the plaintiff may not have understood the full extent of the harm that would result from the loss of his potential third-party claim, the discovery rule is not intended to toll the statute of limitations until the full extent of the plaintiff's injury has manifested itself. See Rowe v. John Deere, 130 N.H. 18, 23 (1987). Rather, that the plaintiff could reasonably discern that he suffered some harm caused by the defendant's conduct is sufficient to render the discovery rule inapplicable. See id.\\nFor similar reasons, the plaintiffs argument regarding his second offered exception, the fraudulent concealment rule, also fails. \\\"[T]he fraudulent concealment rule states that when facts essential to the cause of action are fraudulently concealed, the statute of limitations is tolled until the plaintiff has discovered such facts or could have done so in the exercise of reasonable diligence.\\\" Bricker v. Putnam, 128 N.H. 162, 165 (1986). Again the plaintiff points to the defendant's November 1992 letter and argues that the defendant concealed the harm to the plaintiff by telling him that he was \\\"fully protected\\\" under his workers' compensation claim.\\nThe defendant did not conceal any essential facts in his letter. The defendant explained that the third-party claim could no longer be filed because it was barred by the Connecticut statute of limitations. As we stated above, this was sufficient to put the plaintiff on notice that the defendant may have committed malpractice. The language that the plaintiff cites did not conceal the injury, but merely reflected the fact that the plaintiffs workers' compensation claim was not in jeopardy.\\nThe plaintiff finally raises the \\\"continuing representation\\\" rule, which he argues should be applied to toll the statute of limitations until the defendant ceased representing him in April 1996. See Coyle, 147 N.H. at 101. We need not address this argument, however, because it was not raised before the trial court and thus was not preserved for appeal. See Panciocco v. Lawyers Title Ins. Corp., 147 N.H. 610, 616 (2002).\\nFinally, we address the plaintiffs argument regarding the trial court's denial of his motion for summary judgment on count III, which concerned the defendant's failure to perform a choice of forum analysis. The trial court ruled that summary judgment was inappropriate because genuine issues of material fact were present. See Winnacunnet Coop. Sch. Dist, 148 N.H. at 524. The plaintiff argues that in any personal injury action, an attorney has the duty to perform a choice of forum analysis. Thus, the plaintiff argues that the defendant's malpractice in failing to perform the analysis was so \\\"gross and obvious\\\" that the defendant was negligent as a matter of law, rendering summary judgment appropriate.\\nIn a legal malpractice case, a plaintiff must prove: (1) that an attorney-client relationship existed, which placed a duty upon the attorney to exercise reasonable professional care, skill and knowledge in providing legal services to that client; (2) a breach of that duty; and (3) resultant harm legally caused by that breach. Wong v. Ekberg, 148 N.H. 369, 373 (2002). Though the existence of the defendant's duty to the plaintiff is a question of law, see Sisson v. Jankowski, 148 N.H. 503, 505 (2002), it is for the fact-finder to determine whether, under the circumstances of the case, the defendant breached his duty to exercise reasonable professional care and that the defendant's breach caused the plaintiffs harm, see Gans v. Mundy, 762 F.2d 338, 341 (3d Cir.), cert. denied, 474 U.S. 1010 (1985); cf. Wong, 148 N.H. at 373-74 (expert testimony generally required to assist the jury in determining whether the defendant breached the standard of care). While summary judgment may be appropriate if \\\"the evidence [of negligence] is so conclusive that reasonable persons can reach but one conclusion \\\" 5 R. Mallen & J. Smith, Legal Malpractice \\u00a7 33.11, at 90 (5th ed. 2000), such instances \\\"are exceedingly rare, and the present case does not represent one of them,\\\" J. Edmund & Co. v. Rosen, 591 N.E.2d 179, 181 (Mass. 1992) (quotation omitted).\\nIn opposition to the plaintiffs motion, the defendant offered the deposition testimony of an expert, Attorney Edward Stewart, Jr., who stated that the defendant's conduct did not fall below the standard of reasonable professional care. He testified that under the scope of the defendant's employment and the circumstances of the case, the defendant's pursuit of only a New Hampshire workers' compensation claim was within the bounds of appropriate professional conduct. He opined that \\\"an ordinary attorney in New Hampshire exercising due care would just continue to pursue the claim in New Hampshire where it was initially filed.\\\" The plaintiff concedes that this testimony disputes his expert's opinion on the defendant's alleged breach of his duty. Considering the evidence in the light most favorable to the defendant, see Sintros, 148 N.H. at 480, we conclude that a genuine issue of material fact existed as to the defendant's alleged breach of his duty, and, accordingly, we affirm the trial court's denial of the plaintiffs motion.\\nAffirmed.\\nBroderick, Nadeau and Duggan, JJ., concurred.\"}" \ No newline at end of file diff --git a/nh/1192933.json b/nh/1192933.json new file mode 100644 index 0000000000000000000000000000000000000000..930c6f77998cc02d67bc382de2e8c65772196d15 --- /dev/null +++ b/nh/1192933.json @@ -0,0 +1 @@ +"{\"id\": \"1192933\", \"name\": \"Preferred National Insurance Company v. Docusearch, Inc. & a.\", \"name_abbreviation\": \"Preferred National Insurance v. Docusearch, Inc.\", \"decision_date\": \"2003-08-19\", \"docket_number\": \"No. 2002-729\", \"first_page\": 759, \"last_page\": \"767\", \"citations\": \"149 N.H. 759\", \"volume\": \"149\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Supreme Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-10T19:29:43.110587+00:00\", \"provenance\": \"CAP\", \"judges\": \"Brock, C.J., and Broderick, Nadeau and Duggan, JJ., concurred.\", \"parties\": \"Preferred National Insurance Company v. Docusearch, Inc. & a.\", \"head_matter\": \"Hillsborough-southern judicial district\\nNo. 2002-729\\nPreferred National Insurance Company v. Docusearch, Inc. & a.\\nArgued: June 12, 2003\\nOpinion Issued: August 19, 2003\\nDevine, Millimet & Branch, P.A., of Manchester (Andrew D. Dunn and James R. Fox on the brief, and Mr. Fox orally), for the petitioner.\\nGottesman & Hollis, P.A., of Nashua (David M. Gottesman and Anna Barbara Hantz on the brief, and Mr. Gottesman orally), for the respondents.\", \"word_count\": \"2924\", \"char_count\": \"18338\", \"text\": \"Dalianis, J.\\nIn this declaratory judgment action, the respondents, Docusearch, Inc. (Docusearch) and Helen Remsburg, appeal an order of the Superior Court (Hampsey, J.) granting summary judgment in favor of the petitioner, Preferred National Insurance Company (Preferred). We affirm in part, reverse in part and remand.\\nPreferred sought a declaratory judgment that it is under no obligation to defend or indemnify Docusearch in a lawsuit filed by Remsburg, Administratrix of the Estate of Amy Lynn Boyer, in the United States District Court for the District of New Hampshire, Helen Remsburg, Administratrix v. Docusearch, Inc., No. C-00-211-B, because the damages alleged by Remsburg arose out of an act excluded by the insurance policy. The claims made by Remsburg and the facts underlying the complaint are detailed in Remsburg v. Docusearch, 149 N.H. 148,151-53 (2003), and need only briefly be summarized here. Liam Youens contacted Docusearch and requested the date of birth, social security number and place of employment for Amy Lynn Boyer. Docusearch failed to provide Boyer's date of birth, but provided Youens with her social security number and place of employment. On October 15, 1999, Youens drove to Boyer's workplace and fatally shot her as she left work. Youens then shot and killed himself.\\nThe disputed insurance policy issued by Preferred to Docusearch provides commercial general liability coverage for bodily injury and property damage (Coverage A), as well as personal and advertising injury damage (Coverage B). Coverage A provides that the insurer will pay \\\"those sums that the insured becomes legally obligated to pay as damages because of 'bodily injury' or 'property damage' to which this insurance applies.\\\" \\\"Bodily injury\\\" is defined as \\\"bodily injury, sickness or disease sustained by a person, including death resulting from any of these at any time.\\\" Coverage B provides that the insurer will pay \\\"those sums that the insured becomes legally obligated to pay as damages because of 'personal and advertising injury' to which this insurance applies.\\\" \\\"Personal and advertising injury\\\" means \\\"injury, including consequential 'bodily injury', arising out of one or more of the following offenses: . e. Oral or written publication of material that violates a person's right to privacy.\\\"\\nThe policy also includes a \\\"Detective or Patrol Agency Endorsement\\\" (detective endorsement), which modifies the commercial general liability coverage and provides \\\"coverage for sums which you become legally obligated to pay because of any Negligent Act, Error or Omission committed during the Policy Period in the conduct of . operations,\\\" subject to \\\"those Exclusions already found in the Coverage Form.\\\"\\nThe parties' dispute centers primarily upon the interpretation of an \\\"Assault & Battery Endorsement\\\" attached to the policy, which provides:\\n[T]he policy to which this endorsement is attached, is amended and modified as follows:\\nActions and proceedings to recover damages for bodily injuries or property damage arising from the following are excluded from coverage, and the Company is under no duty to defend or to indemnify an insured in any action or proceeding alleging such damages:\\n1. Assault and Battery or any act or omission in connection with the prevention or suppression of such acts;\\nRegardless of degree of culpability or intent and without regard to:\\nA. Whether the acts are alleged to be by or at the instruction or at the direction of the insured, his officers, employees, agents, or servants; or by any person lawfully or otherwise on, at or near premises owned or occupied by the insured; or by any other person____\\nPreferred filed a motion for summary judgment arguing that the assault and battery endorsement excluded coverage because the claimed damages arose out of Youens' assault and battery. The trial court granted the motion, finding that the respondents \\\"failed to rebut, with evidence sufficient to raise a genuine issue of material fact, Preferred's showing that the exclusive source of the underlying plaintiff's injuries (and therefore [the] claims) was the murder of Amy Boyer and its attendant excluded acts.\\\" On appeal, the respondents argue that the trial court erred in: (1) concluding that the assault and battery endorsement excluded coverage' for bodily injury claims where the harm alleged was caused by the insured's negligence in disclosing information; and (2) applying the assault and battery endorsement to exclude claims brought under either Coverage B or the detective endorsement.\\nIn its brief, Preferred argues that the trial court erred by applying New Hampshire law, rather than Florida law, to interpret the policy. Preferred has not cross-appealed the trial court's ruling that New Hampshire law applies, however, and thus has waived its choice of law argument. See Federal Bake Shop v. Farmington Cas. Co., 144 N.H. 40, 43 (1999). Accordingly, we address the respondents' arguments under New Hampshire law.\\nIn reviewing the trial court's grant of summary judgment, we consider the affidavits and other evidence, and all inferences properly drawn from them, in the light most favorable to the non-moving party. See Del Norte, Inc. v. Provencher, 142 N.H. 535, 537 (1997). \\\"If our review of that evidence discloses no genuine issue of material fact, and if the moving party is entitled to judgment as a matter of law, we will affirm the grant of summary judgment.\\\" Id. (quotation and brackets omitted). Pursuant to RSA 491:22-a (1997), \\\"the burden of proving lack of insurance coverage is on the insurer.\\\" Maville v. Peerless Ins. Co., 141 N.H. 317, 320 (1996) (quotation omitted).\\nThe interpretation of the language of an insurance policy is a question of law for this court to decide. High Country Assocs. v. N.H. Ins. Co., 139 N.H. 39, 41 (1994). We take the plain and ordinary meaning of the policy's words in context, and we construe the terms of the policy as would a reasonable person in the position of the insured based upon more than a casual reading of the policy as a whole. Id. An insurer's obligation to defend its insured is determined by whether the cause of action against the insured alleges sufficient facts in the pleadings to bring it within the express terms of the policy. Martin v. Me. Mut. Fire Ins. Co., 145 N.H. 498, 500 (2000). An insurance company is free to limit its liability through clear and unambiguous policy language. Ross v. Home Ins. Co., 146 N.H. 468, 471 (2001).\\nThe respondents argue that Preferred has a duty to defend and indemnify Docusearch against Remsburg's negligence claim. The claim alleges that Docusearch negligently disseminated information by providing Boyer's social security number and place of employment to Youens, who allegedly used the information in connection with his murder of Boyer. The claim alleges \\\"damages including but not limited to the fear, anxiety and mental and physical pain suffered by Amy Lynn Boyer as she lay dying, the reasonable expenses occasioned to the estate by her death, the loss of the probable duration of her life but for her death.\\\"\\nThe respondents argue that the assault and battery endorsement does not apply to the negligence claim because the damages alleged arose from the insured's negligence, not from an assault and battery. Preferred counters that the exclusion applies because the negligence claim alleges damages comprised solely of bodily injuries arising from Youens' assault and battery.\\nWe disagree with the respondents' contention that Preferred's obligations under the policy are determined solely by the actions of the insured. Damages are an essential part of a negligence claim. Ross, 146 N.H. at 472. Thus, where the damages arise entirely out of an act that would not be covered under an insurance policy, the negligence claim is not one that would be covered under the policy. Id. We applied this principle in Ross where we held that the insured was not covered by his insurance policy for claims of negligent hiring and supervision because the underlying damages arose out of a rape which was not covered under the policy. Id. Other courts have applied a similar rule in interpreting exclusionary clauses similar to the one at issue here. See, e.g., Stiglich v. Tracks, D.C., Inc., 721 F. Supp. 1386, 1388 (D.C. 1989) (no coverage for negligence claim because proof of excluded act necessary to make the claim); Perrine Food Retailers v. Odyssey LTD., 721 So. 2d 402, 404 (Fla. Dist. Ct. App. 1998) (no coverage for negligence claim where exclusion precluded coverage for all claims arising out of an assault and battery); Ross v. City of Minneapolis, 408 N.W.2d 910, 913-14 (Minn. Ct. App. 1987) (negligence claim causally connected to assault and battery unambiguously excluded by assault and battery exclusion); Hunt v. Capitol Indem. Corp., 26 S.W.3d 341, 343-44 (Mo. Ct. App. 2000) (exclusionary language specifically stating that coverage does not apply to bodily injuries arising out of assault or battery includes negligence actions that arise out of the excluded act).\\nThe respondents argue that our reasoning in Ross does not apply to the present case because the policy at issue in Ross was a professional liability policy rather than a general liability policy. While we agree with the respondents' contention that different policy types serve different purposes, we do not share the respondents' interpretation of Ross. Our analysis in Ross concerned whether the policy covered the act which caused the damages, not whether the policy was of a particular type. See Ross, 146 N.H. at 472.\\nMoreover, in Ross, we cited Winnacunnet v. National Union, 84 F.3d 32, 38 (1st Cir. 1996), which held that an insurer had no duty to provide coverage under an errors and omissions policy because the complaint against the insured alleged only damages that arose out of an uncovered act. In Winnacunnet, the complaint against the insured sought damages for the insured's negligent hiring and supervision of an employee. Id. at 33-34. The plaintiffs claimed that the insured's negligence resulted in \\\"inappropriate relationships and dangerous effects,\\\" and alleged a variety of damages. Id. at 34. The court found, however, that all the claimed damages were the result of the murder of the employee's husband. Id. at 37. Because the policy at issue excluded coverage for \\\"any claim arising out of . assault or battery\\\" as well as \\\"any claim arising out of bodily injury to, or . death of any person,\\\" id. at 34, the court concluded that the complaint alleged damages arising entirely out of an act \\u2014 the murder \\u2014 that was excluded under the policy and denied coverage. Id. at 37.\\nSimilarly, here, the negligence claim alleges damages arising entirely from Youens' assault and battery against Boyer. The respondents have failed to allege any damage from the alleged negligence other than Boyer's bodily injuries inflicted by Youens. Remsburg could not prevail on the negligence claim -without proving damages from Boyer's murder. Cf. Ross, 146 N.H. at 472; Winnacunnet, 84 F.3d at 36. Thus, because the damages arose out of the assault and battery which is excluded by the assault and battery endorsement, the respondents' negligence claim is excluded as well. See Ross, 146 N.H. at 472.\\nWe find support for our conclusion in the broad language of the policy itself. The assault and battery endorsement expressly excludes claims for damages arising from assault and battery by the insured or any other person. Courts interpreting comparably broad exclusionary clauses have typically denied coverage in cases similar to the one which we face here. Compare Liquor Liab. JUA v. Heritage Ins. Co., 644 N.E.2d 964, 967 n.4 (Mass. 1995) (citing cases denying coverage under similarly worded exclusionary clauses), with Bd. of Educ. v. Nat. Union Fire Ins., 709 A.2d 910, 914 (Pa. Super. Ct. 1998) (finding coverage where exclusions \\\"do not by their terms apply to the conduct of a non-insured\\\").\\nThe respondents argue that the assault and battery endorsement, if read to exclude coverage for the insured's negligence in this case, removes coverage for the principal activity of the insured's operations for which the premium was paid. We disagree. Excluding claims for damages arising from assault and battery does not entirely remove coverage for the risks against which Docusearch insured itself. Rather, the exclusion merely singles out a particular risk. Moreover, while we agree with the respondents that the policy's detective endorsement is intended to insure Docusearch against liability arising out of mistakes inherent in the practice of its profession, see Watkins Glen Cent. v. Nat. Union Fire, 732 N.Y.S.2d 70, 72 (App. Div. 2001), we disagree that Preferred is not permitted to limit this coverage to certain types of risks with clear and unambiguous language, see Ross, 146 N.H. at 471. Given the variety of harms risked by the dissemination of information, we cannot conclude, as the respondents urge, that excluding a certain type of bodily injury from coverage \\\"would wholly vitiate coverage and frustrate the reasonable expectations of the insured.\\\" Watkins Glen Cent., 732 N.Y.S.2d at 71.\\nNor do we agree that section 493.6110, Florida Statutes (2002), which requires a private investigator to carry comprehensive general liability for \\\"death, bodily injury, property damage, and personal injury\\\" to be licensed in Florida, necessitates a finding of coverage here. Section 493.6110 does not require that an insurer provide a particular type of coverage, but rather places a duty upon private investigators to make sure they have obtained comprehensive liability coverage consistent with the statute in order to be licensed. See Southern Adj. v. American Bankers Ins., 723 So. 2d 285, 286 (Fla. Dist. Ct. App. 1998). Regardless of whether the coverage obtained by Docusearch complies with the statute, nothing in the statute required Preferred to provide coverage for damages for bodily injuries arising from assault and battery. See id.\\nThe respondents next argue that the assault and battery endorsement applies only to Coverage A, and does not preclude coverage under either the \\\"consequential 'bodily injury'\\\" coverage of Coverage B or the detective endorsement.- They argue that because the assault and battery endorsement refers to \\\"bodily injury and property damage,\\\" but does not refer to \\\"personal and advertising injury,\\\" the exclusion does not apply to Coverage B. They further argue that because the detective endorsement is modified only by the exclusions contained within the coverage form, the assault and battery endorsement does not apply to that coverage. The respondents analogize this case to Silverball Amusement v. Utah Home Fire Ins., 842 F. Supp. 1151 (W.D. Ark. 1994), in which the court stated that \\\"[i]f there is an exclusion in one section but not in another, the court cannot rewrite the contract to place exclusions in both sections.\\\" Id. at 1159. A fair reading of the policy as a whole, however, does not support the respondents' arguments.\\nThe assault and battery endorsement is not attached to a particular section of the policy and is not restricted to a certain type of coverage within the coverage form. Rather, the endorsement states, \\\"the policy to which this endorsement is attached, is amended and modified as follows.\\\" Unlike an exclusion limited to a particular section within the policy, an endorsement attached to a policy must be read together with the entire policy. See 4 E. HOLMES, APPLEMAN ON INSURANCE 2d \\u00a7 20.1, at 153 (1998). The endorsement excludes coverage for any action to recover damages for bodily injuries arising from assault and battery. Thus, the assault and battery endorsement excludes coverage under Coverage B for actions to recover damages for bodily injury in the same way that it does under Coverage A. Likewise, the assault and battery endorsement applies to the detective endorsement. The detective endorsement is modified by the exclusions found in the coverage form, which includes the attached assault and battery endorsement.\\nThe respondents finally argue that Preferred must provide coverage under Coverage B for the invasion of privacy claim and the claim under the Consumer Protection Act, see RSA ch. 358-A (1995 & Supp. 2002). These claims allege other damages in addition to the damages arising from Boyer's bodily injuries caused by the assault and battery. The trial court did not specifically address these other damages but instead found that all the damages alleged in Remsburg's complaint were the result of the excluded assault and battery. We agree with the respondents that this was error.\\nAn action for intrusion upon seclusion does not require a claimant to prove any harm beyond the intrusion itself. See RESTATEMENT (SECOND) OF TORTS \\u00a7 652H comment a at 402 (1977) (\\\"[0]ne who suffers an intrusion upon his solitude or seclusion . may recover damages for the deprivation of his seclusion.\\\")- The invasion of privacy counts in the complaint included a claim for damages for the intrusion into Boyer's seclusion itself in addition to the claimed damages for her bodily injuries. Further, the Consumer Protection Act does not require a showing of actual damages for the claimant to be awarded the statutory minimum and attorney's fees. RSA 358-A:10, I (1995); see Carter v. Lachance, 146 N.H. 11, 14 (2001). Thus, while expressing no opinion as to whether Preferred has any obligations in relation to these claims, we reverse the trial court's application of the assault and battery endorsement to the extent that Remsburg has alleged damages unrelated to Boyer's bodily injuries.\\nAccordingly, we remand to the trial court for further proceedings consistent with this opinion.\\nAffirmed in part; reversed in part; and remanded.\\nBrock, C.J., and Broderick, Nadeau and Duggan, JJ., concurred.\"}" \ No newline at end of file diff --git a/nh/12460338.json b/nh/12460338.json new file mode 100644 index 0000000000000000000000000000000000000000..0a625f41ca1894446b04ba4d1a25bcf6d0539b1d --- /dev/null +++ b/nh/12460338.json @@ -0,0 +1 @@ +"{\"id\": \"12460338\", \"name\": \"William Weaver & a. v. Randall Stewart & a.\", \"name_abbreviation\": \"Weaver v. Stewart\", \"decision_date\": \"2016-10-27\", \"docket_number\": \"No. 2015-0335\", \"first_page\": 420, \"last_page\": \"431\", \"citations\": \"169 N.H. 420\", \"volume\": \"169\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Supreme Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-11T00:50:34.200741+00:00\", \"provenance\": \"CAP\", \"judges\": \"Dalianis, C.J., and Hicks, Conboy, and Lynn, JJ., concurred.\", \"parties\": \"William Weaver & a. v. Randall Stewart & a.\", \"head_matter\": \"Rockingham\\nNo. 2015-0335\\nWilliam Weaver & a. v. Randall Stewart & a.\\nArgued: May 3, 2016\\nOpinion Issued: October 27, 2016\\nMcDowell & Osburn, P.A., of Manchester (,Joseph F. McDowell III, Mark Morrissette, and Heather V. Menezes on the brief, and Mr. Morrissette orally), for the plaintiffs.\\nCullenCollimore, PLLC, of Nashua (Brian J.S. Cullen and Shelagh C.N. Michaud on the brief, and Mr. Cullen orally), for defendants Town of Pelham, Derek Gioia, and Joseph Roark.\\nBoyle, Shaughnessy & Campo, P.C., of Manchester (Michael P. Johnson and Quinn E. Kelley on the brief, and Mr. Johnson orally), for defendant Woody\\u2019s Auto Repair & Towing, Inc.\", \"word_count\": \"4301\", \"char_count\": \"26755\", \"text\": \"Bassett, J.\\nThe plaintiffs, William Weaver, individually and as administrator of the estate of his wife, Marceline Weaver, and James Sousa, appeal decisions of the superior court granting summary judgment in favor of the defendants, the Town of Pelham (Town), Pelham Police Chief Joseph Roark, Pelham Police Officer Derek Gioia (collectively, the Pelham defendants), and Woody's Auto Repair & Towing, Inc. (Woody's).\\nThis case arises from an automobile accident allegedly caused by Randall Stewart, the owner and driver of a vehicle that collided with the plaintiffs. Stewart is not participating in this appeal. The Trial Court (McHugh, J.) concluded that, although the Pelham defendants are not immune from suit under RSA chapter 507-B (2010) or under the common law, they are entitled to summary judgment because of the lack of evidence that they proximately caused the motor vehicle collision that resulted in the plaintiffs' injuries. We affirm the court's finding that there was insufficient evidence that the Pelham defendants proximately caused the accident. Accordingly, we need not address the Pelham defendants' cross-appeal on immunity.\\nThe Trial Court (Anderson, J.) granted summary judgment in favor of Woody's, concluding that: (1) because Stewart's vehicle had been towed the night before the collision pursuant to RSA 262:32 (2014), rather than impounded pursuant to RSA 262:40 (2014), Woody's was not required to obtain authorization from the police or a court prior to releasing the vehicle the next day to its owner; (2) Woody's cannot be liable for negligent entrustment of a motor vehicle because of the lack of evidence that a Woody's employee knew, or should have known, that the owner was impaired when he picked up his vehicle; and (3) given the absence of evidence demonstrating that Woody's breached a duty owed to the plaintiffs, it is not liable for negligence. We affirm.\\nI. Background\\nThe relevant facts follow. At approximately 11:30 p.m. on June 25, 2010, Gioia responded to a call reporting that a person was driving a vehicle erratically. He pulled the vehicle over and identified the driver as Stewart. Gioia noticed an odor of alcohol, observed that Stewart had glassy eyes, and administered field sobriety tests that Stewart failed. Gioia arrested Stewart for driving under the influence and called Woody's, requesting that Woody's tow Stewart's vehicle. At the scene, Gioia conducted an inventory search of the vehicle, noting that the vehicle contained \\\"Cds,\\\" \\\"[mjiscellaneous pieces of clothing,\\\" and \\\"1 can of beer.\\\"\\nGioia took Stewart to the Pelham police station for booking. Stewart refused to take a breathalyzer test. Gioia then confiscated Stewart's license and provided him with a copy of the Administrative License Suspension form that would serve as his temporary license, see RSA 265-A:30 (2014). Gioia charged Stewart with, among other things, driving while under the influence. At approximately 1:30 a.m., Gioia transported Stewart to a home in Windham. According to Gioia, at that time, Stewart appeared to be \\\"somewhat impaired.\\\"\\nAt 6:49 a.m., and again at 7:23 a.m., Stewart telephoned the Pelham Police Department and spoke briefly with Gioia. In response to Stewart's questions, Gioia told him that his vehicle was at Woody's and that he could retrieve it after Woody's opened for business at 9:00 a.m. In his deposition Gioia testified that, during the 6:49 a.m. telephone call, Stewart \\\"sounded better\\\" than he did the night before. Gioia testified that he understood everything Stewart said, and it \\\"sounded like\\\" Stewart understood everything that Gioia said to him. Gioia also testified that Stewart sounded the same during both of the early morning telephone calls. According to Gioia, these telephone conversations \\\"sounded like a normal course of conversation [that he] would have with any citizen that called in.\\\"\\nAt some point after 8:30 a.m. and before 10:00 a.m. Stewart arrived at Woody's, paid the towing and storage charges, and retrieved his vehicle. Brendan Wood, who owned Woody's, testified in his deposition that Stewart did not appear to be impaired when he picked up the vehicle. At approximately 11:19 a.m., Stewart telephoned the police station and left an incoherent voicemail message for Gioia.\\nAt approximately noon, Stewart drove his vehicle into oncoming traffic in Hampstead, striking the plaintiffs who were riding on motorcycles. The plaintiffs were severely injured, and Weaver's wife died. According to police officers at the accident scene, Stewart exhibited signs of impairment, and failed a field sobriety test. Following the collision, Hampstead police conducted a search of Stewart's vehicle and found a Xanax prescription \\\"tag\\\" in the \\\"back seat area.\\\" According to Edward J. Barbieri, Ph.D., a forensic toxicologist retained by Stewart, multiple drugs, including Xanax, were detected in blood samples taken from Stewart after the accident.\\nIn September 2012, the plaintiffs sued the Pelham defendants and Woody's. In their action against the Pelham defendants, the plaintiffs asserted several negligence claims, including negligent entrustment of a motor vehicle. In February 2014, after the parties had an opportunity to conduct discovery, the Pelham defendants moved for summary judgment arguing that: (1) they were immune from liability under RSA chapter 507-B because the plaintiffs' claims did not arise out of the Pelham defendants' \\\"ownership, occupation, maintenance or operation\\\" of motor vehicles or premises; (2) they were entitled to official immunity under the common law; and (3) the plaintiffs offered no evidence that any act or omission by the Pelham defendants proximately caused the accident. (Quotation omitted.)\\nThe plaintiffs objected, asserting that the Pelham defendants mischaracterized their negligence claims \\\"as solely a failure to hold Mr. Stewart in custody after his . . . June 25, 2010 arrest in an effort to create immunity where none exists\\\" and that, rather, \\\"[t]his case is about the negligent entrustment of a motor-vehicle [sic] seized and controlled by the Pelham PD to an intoxicated Mr. Stewart on the morning of June 26, 2010.\\\" The plaintiffs argued that RSA 507-B:2 allows negligent entrustment actions, and that the Pelham defendants were not entitled to either statutory or common law immunity.\\nThe trial court concluded that, because the plaintiffs chose to respond to the motion by arguing in support of only the negligent entrustment claim, the remaining claims against the Pelham defendants \\u2014 for failing to detain Stewart and the claim against the police chief for improperly training Gioia \\u2014 should be dismissed. The plaintiffs do not challenge the trial court's decision to dismiss the other claims against the Pelham defendants. We limit our analysis on appeal accordingly.\\nThe trial court rejected the Pelham defendants' argument that they were entitled to immunity under RSA chapter 507-B or to official immunity under the common law. Nonetheless, the court concluded that the Pelham defendants were entitled to summary judgment because of the lack of evidence that they proximately caused the motor vehicle accident that resulted in the plaintiffs' injuries. The plaintiffs unsuccessfully sought reconsideration.\\nIn regard to the suit against Woody's, the plaintiffs asserted negligence claims and that Woody's violated RSA 262:40. Woody's moved for summary judgment, arguing that: (1) because Stewart's vehicle was towed rather than impounded under RSA 262:40, Woody's was not required to obtain authorization from the police or a court prior to releasing the vehicle; (2) given the undisputed material facts, it could not be found liable under the theory of negligent entrustment; and (3) Woody's owed no duty of care to the plaintiffs that would support a theory of negligence. The trial court granted the motion.\\nThe court found that Woody's did not violate RSA 262:40, concluding that the undisputed facts established that the vehicle was towed pursuant to RSA 262:32, rather than impounded pursuant to RSA 262:40. The trial court also rejected the plaintiffs' argument that RSA 262:40 is a \\\"safety statute\\\" designed to impose a duty of care upon an entity such as Woody's. (Quotation omitted.)\\nIn addition, the trial court concluded that Woody's was not liable for negligent entrustment because, among other reasons, \\\"no reasonable jury could conclude\\\" that Wood had reason to believe that Stewart was impaired when he picked up his vehicle. As to the plaintiffs' negligence claim, the court concluded that, even assuming that Woody's owed the plaintiffs a duty, there was insufficient evidence establishing that the duty was breached because there was no evidence that Wood knew, or should have known, that Stewart was impaired. The plaintiffs unsuccessfully sought reconsideration of the trial court's rulings. This appeal followed.\\nII. Appellate Arguments\\nA Standard of Review\\n\\\"The mission of the summary judgment procedure is to pierce the pleadings and assess the proof in order to determine if there is a genuine issue of material fact requiring a formal trial of the action.\\\" Community Oil Co. v. Welch, 105 N.H. 320, 321 (1964) (quotation and citation omitted). A party opposing a motion for summary judgment must \\\"set forth specific facts showing a genuine issue for trial,\\\" and not simply assert \\\"general allegations or denials.\\\" Hill-Grant Living Trust v. Kearsarge Lighting Precinct, 159 N.H. 529, 535 (2009) (quotation omitted).\\n\\\"In reviewing the trial court's grant of summary judgment, we consider the affidavits and other evidence, and all inferences properly drawn from them, in the light most favorable to the non-moving party.\\\" Pike v. Deutsche Bank Nat'l Trust Co., 168 N.H. 40, 42 (2015). \\\"If our review of that evidence discloses no genuine issue of material fact, and if the moving party is entitled to judgment as a matter of law, we will affirm the grant of summary judgment.\\\" Id. \\\"We review the trial court's application of the law to the facts de novo.\\\" Id.\\nB. Pelham Defendants\\nThe plaintiffs argue that the trial court erred when it granted summary judgment in favor of the Pelham defendants on the claim of negligent entrustment. Negligent entrustment is based upon the principle that \\\"the owner of a motor vehicle may be held liable for an injury to a third person resulting from the operation of a vehicle which he has entrusted to one whose incompetency to operate it . is know[n] or should have been known to him.\\\" Chalmers v. Harris Motors, 104 N.H. 111, 114-15 (1962). \\\"[A] defendant could be unfit because of age, bad habits, dangerous propensities, carelessness, recklessness, or habitual driving while under the influence of alcohol.\\\" Burley v. Kenneth Hudson, Inc., 122 N.H. 560, 563 (1982). \\\"To succeed on a negligent entrustment claim, the plaintiff must prove not only the driver's incompetence, but also the owner's knowledge of that incompetence.\\\" Burley, 122 N.H. at 563. Because the Pelham defen dants do not argue otherwise, we assume, without deciding, that negligent entrustment extends to non-owners of a vehicle.\\nThe plaintiffs argue that \\\"material issues of fact were in dispute regarding whether Officer Gioia knew or should have known that Mr. Stewart was intoxicated before the June 26, 2010 accident\\\" and thereby \\\"facilitated Mr. Stewart's driving by failing to contact Woody's and prevent the release of [his vehicle].\\\" (Bolding omitted.) In support of their argument, the plaintiffs rely upon: (1) Stewart's deposition testimony \\\"that he was visibly intoxicated throughout the time of his arrest until the June 26, 2010 accident\\\"; (2) Barbieri's opinion \\\"that, based on the levels of multiple drugs in Mr. Stewart's blood taken on June 26, 2010, Mr. Stewart would have exhibited impairment signs on the morning of June 26, 2010\\\"; and (3) the voicemail message that Stewart left for Gioia on the day of the collision \\\"that evidenced his continued impairment.\\\"\\nWe have reviewed the record and conclude that, taking the evidence in the light most favorable to the plaintiffs, it does not give rise to a genuine issue of material fact on the dispositive issue of whether Gioia knew, or should have known, that, at the time Stewart arrived at Woody's to pick up his vehicle, he was impaired and, therefore, unfit to drive. Although Stewart speculated in his deposition testimony that it \\\"would have been obvious\\\" that he exhibited signs of impairment when he was at Woody's, he repeatedly stated that he had virtually no memory of the time between his arrest on the night of June 25 and the collision.\\nMoreover, Gioia was not at Woody's when Stewart picked up his vehicle; his last interactions with Stewart were the two brief telephone conversations at 6:49 a.m. and 7:23 a.m. on June 26 which, according to Gioia's uncontradicted deposition testimony, were \\\"normal\\\" conversations. In his toxicology report, Barbieri opines that \\\"within a reasonable degree of scientific certainty . . . Stewart was impaired by [Xanax] at the t ime of the motor vehicle accident\\\" and \\\"was showing signs of [central nervous system] impairment during the first [arrest] and his contact with . . . Gioia.\\\" (Emphases added.) But, he does not address Stewart's condition at the specific time at issue \\u2014 when he picked up his vehicle at Woody's.\\nBecause the plaintiffs rely solely upon conjecture as to Stewart's condition when he spoke on the telephone with Gioia at 6:49 a.m. and 7:23 a.m., and when he picked up his vehicle at Woody's, they have failed to set forth specific facts showing a genuine issue for trial. See Hill-Grant Living Trust, 159 N.H. at 535; see also State v. Pessetto, 160 N.H. 813, 818 (2010) (explaining that \\\"speculation . is not evidence\\\").\\nThe plaintiffs further argue that, based upon the voicemail message that Stewart left for Gioia at 11:19 a.m., Gioia \\\"was in a position to know of Mr. Stewart's intoxication on the morning of June 26.\\\" However, because Stewart had retrieved his car from Woody's well before he left his voicemail message, that message is irrelevant to the plaintiffs' negligent entrustment claim. Accordingly, we hold that the Pelham defendants are entitled to judgment as a matter of law, and we affirm the trial court's grant of summary judgment.\\nC. Woody's\\n1. RSA 262:32 and RSA 262A0\\nThe plaintiffs argue that the trial court erred when it granted summary judgment in favor of Woody's on the ground that, because the vehicle was towed pursuant to RSA 262:32 rather than impounded pursuant to RSA 262:40, Woody's was not required to obtain authorization from either the Pelham Police Department or a court before releasing the vehicle to Stewart. The plaintiffs assert that, because Gioia arrested Stewart for driving while under the influence the night before the collision and had his vehicle towed to Woody's, the vehicle was \\\"used in connection with a criminal offense, and a peace officer . . . ordered the removal and impoundment of such vehicle.\\\" RSA 262:40. Thus, the plaintiffs assert that Woody's violated RSA 262:40 when it released Stewart's vehicle to him without prior authorization. In response, Woody's argues that the trial court correctly concluded that Stewart's vehicle was towed pursuant to RSA 262:32 rather than impounded. We agree with Woody's.\\nBecause resolving this issue requires us to engage in statutory interpretation, our review is de novo. See Dichiara v. Sanborn Reg'l Sch. Dist., 165 N.H. 694, 696 (2013). We are the final arbiter of the intent of the legislature as expressed in the words of the statute considered as a whole. Id. We first examine the language of the statute, and, when possible, we ascribe the plain and ordinary meanings to the words used. Id. We interpret legislative intent from the statute as written and will not consider what the legislature might have said or add language that the legislature did not see fit to include. Strike Four v. Nissan N. Am., 164 N.H. 729, 735 (2013). We interpret statutory provisions in the context of the overall statutory scheme. Id.\\nPursuant to RSA chapter 262, \\\"[a]n authorized official may take a vehicle into his or her custody and may cause the same to be taken away and stored at some suitable place\\\" only as provided in the statute. RSA 262:31 (2014). An \\\"[ajuthorized official\\\" is \\\"any police employee of the division of state police, highway enforcement officer or other authorized employee of the department of safety, or peace officer.\\\" RSA 259:4-a (2014) (quotation omitted).\\nRSA 262:32 sets forth seven circumstances under which an authorized official \\\"may cause the removal and storage of a vehicle.\\\" As pertinent here, an authorized official may do so if he or she \\\"has reasonable grounds to believe\\\" that \\\"[t]he owner or custodian of the vehicle is under arrest or otherwise incapacitated, and the vehicle will be a menace to traffic if permitted to remain.\\\" RSA 262:32, VI. If a vehicle is removed pursuant to RSA 262:32, \\\"all reasonable charges incurred as a result of such removal and storage shall be a lien against the vehicle which shall be paid by the owner . . . claiming such vehicle,\\\" RSA 262:33, I (2014), and \\\"the owner . . . shall be entitled to recover said vehicle and release of the above lien by payment of all reasonable towing and storage charges,\\\" RSA 262:33, II (2014).\\nBy contrast, RSA 262:40 provides that:\\nWhenever a vehicle is reasonably believed to have been used in connection with a criminal offense, and a peace officer has ordered the removal and impoundment of such vehicle, the custodian of said vehicle shall release it upon authorization of the removing agency or a court of competent jurisdiction.\\nViewing this statutory scheme as a whole, we conclude that the plain language in RSA 262:32, VI authorizes police officers to remove a vehicle after the owner is arrested if \\\"the vehicle will be a menace to traffic,\\\" whereas the language in RSA 262:40 is reasonably interpreted to authorize police officers to remove and impound a vehicle because it may be evidence of a crime. Because under RSA 262:82, VI, a vehicle is removed simply to eliminate the hazard it otherwise poses to traffic, the owner of the vehicle may recover it upon payment of the towing and storage fees. However, because a vehicle is removed under RSA 262:40 in order to retain it for evidentiary purposes, the vehicle may not be released until authorized by law enforcement or a court.\\nAs Gioia testified during his deposition, he arrested Stewart and then asked Woody's to tow Stewart's vehicle because it was a \\\"nuisance\\\" on the road, and so that \\\"vehicle traffic could flow smoothly on that roadway.\\\" He also testified that there was no reason to preserve the vehicle for any evidentiary purpose and that the police had \\\"no use\\\" for the vehicle after they left the scene of the arrest. The Pelham police chief similarly testified that Stewart's vehicle was towed to Woody's because Stewart had been arrested, the vehicle was \\\"on a roadway in a dangerous place,\\\" and, therefore, to avoid an accident, the vehicle needed to be removed from the road. There is no evidence that any law enforcement officer instructed Woody's to hold the vehicle until the police or a court authorized its release.\\nWe conclude that the undisputed facts establish that Stewart's vehicle was towed pursuant to RSA 262:32. No officer \\\"ordered the removal and impoundment of' Stewart's vehicle. RSA 262:40. The vehicle was not placed in the custody of a law enforcement official or a court, or retained for any evidentiary purpose. Rather, the evidence demonstrates that Gioia \\\"cause[d] the removal and storage\\\" of Stewart's vehicle because he had \\\"reasonable grounds to believe that\\\" Stewart was \\\"under arrest or otherwise incapacitated, and the vehicle w[ould] be a menace to traffic if permitted to remain\\\" in the roadway. RSA 262:32, VI. Because Stewart's vehicle was towed and stored pursuant to RSA 262:32 and not impounded under RSA 262:40, Woody's did not need to obtain authorization from the Pelham Police Department or a court before releasing it to Stewart.\\n2. Negligent Entrustment and Negligence\\nThe plaintiffs also argue that the trial court erred when it granted summary judgment in favor of Woody's on their claim that Woody's was liable for negligent entrustment. The plaintiffs assert that Woody's had \\\"custody and control\\\" over the vehicle and released it to a \\\"visibly intoxicated\\\" Stewart. The plaintiffs contend that a negligent entrustment claim can apply to anyone with control over a vehicle who \\\"knowingly lets an unfit person, such [as] an intoxicated person, . . . operate that vehicle.\\\" Woody's counters that \\\"New Hampshire has not extended a negligent entrustment action against any party that is not the owner of a vehicle.\\\" It also argues that there is no evidence that, at the time that Stewart picked up his vehicle, a Woody's employee knew, or should have known, that Stewart was impaired. Because we agree that there was no evidence that Wood, the only Woody's employee to interact with Stewart, knew, or should have known, of Stewart's alleged impairment when he picked up his vehicle, we need not decide whether a negligent entrustment claim extends to non-owners of a vehicle.\\nIn order to survive a motion for summary judgment, \\\"a plaintiff must provide either evidence of the driver's appearance or conduct at the time of the entrustment, or evidence that the owner was otherwise aware of the driver's incompetence at that time.\\\" Weber v. Budget Truck Rental, LLC, 254 P.3d 196, 199 (Wash. Ct. App. 2011). \\\"Because the standard of liability revolves around appearance, any direct or circumstantial evidence must address actual rather than assumed appearance.\\\" Id. (quotation and brackets omitted).\\nNeither Stewart's deposition testimony nor Barbieri's toxicology report gives rise to a genuine issue of material fact as to whether Wood knew, or should have known, that Stewart was unfit to operate his vehicle when he retrieved it from Woody's between 8:30 a.m. and 10:00 a.m. Although Stewart speculated in his deposition testimony that it \\\"would have been obvious\\\" that he exhibited signs of impairment when he was at Woody's, and that when he took too much Xanax he would slur his speech, \\\"black[ ] out,\\\" and display \\\"[b]ad coordination,\\\" this testimony does not create a disputed fact as to whether Wood observed signs of impairment such that he knew, or should have known, that Stewart was intoxicated. Further, as discussed above, although Barbieri concludes in his toxicology report that Stewart was impaired when he was arrested on the night of June 25 and at the time of the accident the following day, he does not render an opinion as to whether Stewart was impaired at the time he picked up his vehicle from Woody's.\\nWe agree with the trial court:\\nWhat remains problematic for Plaintiffs is that this case is fundamentally about Mr. Stewart's behavior when he retrieved his vehicle, and, more directly, Mr. Wood's perceptions of Mr. Stewart at that time. Mr. Stewart admittedly has no memory of that particular encounter. Doctor Barbieri . . . speaks only in generalities and makes no mention of Mr. Stewart's behavior at Woody's. This evidence addresses the assumed appearance of Mr. Stewart, not his actual appearance . Put another way, it would be inappropriate for the jury to make the inferential leap from this evidence that Mr. Wood actually observed that Mr. Stewart was visibly intoxicated.\\n(Citations omitted.)\\nWood testified in his deposition that Stewart did not appear to be impaired when he picked up his vehicle. He explained that Stewart \\\"wasn't falling down\\\" and did not smell of alcohol, have glassy eyes, slurred speech, or seem unsteady on his feet. Wood stated that he was able to understand what Stewart said to him, that Stewart seemed to comprehend what Wood said to him, and that he would not have released the vehicle had Stewart exhibited any signs of impairment. We note that when Stewart's vehicle was searched following the collision the police found, for the first time, a Xanax prescription \\\"tag\\\" in the back seat, thus suggesting that the drugs were taken after Stewart picked up the vehicle at Woody's. See Bourgeois v. Vanderbilt, 639 F. Supp. 2d 958, 966 (W.D. Ark. 2009) (granting summary judgment in favor of a casino on plaintiffs negligent entrustment claim because there was no \\\"testimony or other evidence to indicate that [the casino] knew or should have known that [the defendant] was intoxicated\\\" when he retrieved his vehicle from valet parking), aff'd on other grounds, 417 F. App'x 605 (8th Cir. 2011); see also Weber, 254 P.3d at 199 (rejecting, as insufficient to create a question of fact for trial, expert's testimony that, given the amount of methamphetamine in the driver's system at the time of his arrest, it was probable that he exhibited \\\"characteristic effects\\\" of methamphetamine intoxication when he rented the vehicle (quotation omitted)). Thus, we conclude that the trial court did not err when it granted summary judgment to Woody's on the plaintiffs' negligent entrustment claim.\\nWe likewise reject the plaintiffs' argument that the trial court erred in entering summary judgment in favor of Woody's on their negligence claim. The plaintiffs contend that based upon its towing contract with the Pelham Police Department, Woody's had a duty not to release \\\"a vehicle to an intoxicated person\\\" because \\\"injury to innocent third parties was foreseeable,\\\" and because Woody's \\\"voluntarily assumed a duty not to release vehicles to intoxicated individuals.\\\" However, because there is no evidence that Wood knew, or should have known, that Stewart was impaired when he retrieved his vehicle, we need not decide whether Woody's had a duty to not release a vehicle to an impaired person. Accordingly, there is no evidence that Woody's breached this purported duty. Therefore, the trial court did not err when it granted summary judgment to Woody's on the plaintiffs' negligence claim.\\nAffirmed.\\nDalianis, C.J., and Hicks, Conboy, and Lynn, JJ., concurred.\"}" \ No newline at end of file diff --git a/nh/12460373.json b/nh/12460373.json new file mode 100644 index 0000000000000000000000000000000000000000..62f5cd255c750aa8264f15b8dff7322d6fd7273b --- /dev/null +++ b/nh/12460373.json @@ -0,0 +1 @@ +"{\"id\": \"12460373\", \"name\": \"Petition of Eric Willeke and Regina Willeke\", \"name_abbreviation\": \"In re Willeke\", \"decision_date\": \"2017-05-12\", \"docket_number\": \"No. 2016-0079\", \"first_page\": 802, \"last_page\": \"808\", \"citations\": \"169 N.H. 802\", \"volume\": \"169\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Supreme Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-11T00:50:34.200741+00:00\", \"provenance\": \"CAP\", \"judges\": \"Dalianis, C.J., and Conboy, Lynn, and Bassett, JJ., concurred.\", \"parties\": \"Petition of Eric Willeke and Regina Willeke\", \"head_matter\": \"8th Circuit Court-Keene Family Division\\nNo. 2016-0079\\nPetition of Eric Willeke and Regina Willeke\\nSubmitted: February 16, 2017\\nOpinion Issued: May 12, 2017\\nLaw Offices of Joseph S. Hoppock, PLLC, of Keene (Joseph S. Hoppock on the brief), for the petitioners.\\nSamantha Pele, self-represented party, filed no brief.\\nTyler Wyman, self-represented party, filed no brief.\", \"word_count\": \"2046\", \"char_count\": \"13071\", \"text\": \"Hicks, J.\\nThe petitioners, Eric and Regina Willeke, appeal an order of the Circuit Court (Forrest, J.) dismissing their petition for visitation with their now five-year-old great-grandchild for lack of standing. We affirm.\\nThe relevant facts follow. Regina Willeke is the maternal great-grandmother of the child. Eric Willeke is the child's maternal step-great-grandfather. The Willekes' petition alleges that the child lived with the petitioners for most of her life. They were her guardians until November 12, 2015, and they sought great-grandparent visitation rights on September 22, 2015. Tyler Wyman, the child's father, responded to the petition, arguing that New Hampshire law does not confer upon great-grandparents standing to seek visitation. The trial court construed the answer as a motion to dismiss, to which the petitioners objected. In their objection, the petitioners argued that they have a common-law right to seek visitation with the child and, alternatively, that RSA 461-A:13 (Supp. 2016) should be interpreted as conferring upon great-grandparents standing to petition for visitation.\\nThe trial court granted the motion to dismiss, concluding \\\"that the words of [RSA 461-A:13] are not ambiguous and are intended to afford rights to grandparents only.\\\" The trial court did not address the petitioners' common-law claim.\\nOn appeal, the petitioners do not argue that the trial court erred in interpreting RSA 461-A:3. Instead, they argue only that they have common-law standing, independent of RSA 461-A:13, to request that the trial court exercise its parens patriae power to grant them visitation with the child. In the petitioners' view, the common-law right to seek visitation survived the 1991 amendment of RSA 458:17, VI (1983 & Supp. 1991) (amended 2003) (repealed 2005) and the enactment of RSA 458:17-d (1992) (amended 1993, 2004) (repealed 2005), which were succeeded by RSA 461-A:6, V (Supp. 2016) and RSA 461-A:13 respectively, see Laws 2005, 273:1, :20. Thus, the petitioners conclude that the trial court's failure to \\\"consider the availability\\\" of its parens patriae power to order great-grandparent visitation was error. They also argue that the principles of Troxel v. Granville, 530 U.S. 57 (2000) (plurality opinion), adopted by this court in In the Matter of Rupa & Rupa, 161 N.H. 311, 317-18 (2010), \\\"[a]re [n]ot [ojffended\\\" by the court's exercise of that parens patriae power. (Bolding omitted.) Because we conclude that RSA 458:17, VI, as amended in 1991, and RSA 458:17-d and their statutory successors extinguished courts' common law parens patriae power to order visitation, we need not determine whether the exercise of that power to order great-grandparent visitation would offend the principles of Troxel.\\n\\\"Usually, in ruling upon a motion to dismiss, the trial court is required to determine whether the allegations contained in the petitioners' pleadings are sufficient to state a basis upon which relief may be granted.\\\" Petition of Lundquist, 168 N.H. 629, 631 (2016) (quotation omitted). \\\"To make this determination, the court would accept all facts pleaded by the petitioners to be true and construe all reasonable inferences in the light most favorable to the petitioners.\\\" Id. (quotation omitted). \\\"When, however, the motion to dismiss does not contest the sufficiency of the petitioners' legal claim, but instead challenges their standing to sue, the trial court must look beyond the allegations and determine, based upon the facts, whether the petitioners have sufficiently demonstrated a right to claim relief.\\\" Id. (quotation omitted). \\\"Because the underlying facts are not in dispute, we review the trial court's decision de novo.\\\" Id. (quotation omitted).\\nDetermining whether RSA 458:17, VI, as amended in 1991, RSA 458:17-d, and their successors, RSA 461-A:6, V and RSA 461-A:13, abrogated the common-law right to petition for visitation requires that we engage in statutory interpretation. \\\"Statutory interpretation is a question of law, which we review de novo.\\\" Id. (quotation omitted). In matters of statutory interpretation, we are the final arbiter of the intent of the legislature as expressed in the words of the statute considered as a whole. Id. We first look to the language of the statute itself, and, if possible, construe that language according to its plain and ordinary meaning. Id. We interpret legislative intent from the statute as written and will not consider what the legislature might have said or add language that the legislature did not see fit to include. Id.\\nPrior to 1989, RSA 458:17, VI (1983) (amended 1991, 2003) (repealed 2005) empowered courts to order grandparent visitation only in divorce proceedings. See Roberts v. Ward, 126 N.H 388, 390-91 (1985). Under the common law, however, courts could use their \\\"parens patriae power to permit grandparental visitation when it [was] in the best interests of the child, in situations where RSA 458:17, VI [was] not applicable.\\\" Id. at 392. In deciding that courts could grant grandparent visitation outside divorce proceedings, we explained that:\\nIt would be shortsighted indeed, for this court not to recognize the realities and complexities of modern family life, by holding today that a child has no rights, over the objection of a parent, to maintain a close extra-parental relationship which has formed in the absence of a nuclear family.\\nId. Thus, Roberts recognized a common-law right of grandparents and others with whom a child had formed a close extra-parental relationship to petition for visitation \\u2014 outside divorce proceedings \\u2014 in the absence of a nuclear family. Id.\\nIn 1989, the legislature enacted RSA 458:17-d, which provided, in relevant part, that:\\nGrandparents, whether adoptive or natural, may petition the court for reasonable rights of visitation with the minor child as provided in paragraph III. The provisions of this section shall not apply in cases where access by the grandparent or grandparents to the minor child has been restricted for any reason prior to or contemporaneous with the divorce, death, relinquishment or termination of parental rights, or other cause of the absence of a nuclear family.\\nRSA 458:17-d, I; Laws 1989, 814:2. When the legislature passed RSA 458:17-d in 1989, it simultaneously amended RSA 458:17, VI to reflect that courts could grant visitation to grandparents pursuant to RSA 458:17-d. Laws 1989, 314:1-2. Later, in 1991, RSA 458:17, VI was amended to read, in relevant part:\\nIf the court determines that it is in the best interest and welfare of the children, it shall in its decree grant reasonable visitation privileges to a party who is a stepparent of the children or to the grandparents of the children pursuant to RSA 458:17-d.\\nLaws 1991, 93:1.\\nIn 2005, the legislature repealed a large portion of RSA chapter 458 and replaced it with RSA chapter 461-A, entitled \\\"PARENTAL RIGHTS AND RESPONSIBILITIES.\\\" See RSA ch. 458 (2004 & Supp. 2016); RSA ch. 461-A (Supp. 2016); Laws 2005, ch. 273. RSA chapter 461-A controls \\\"cases concerning parental rights and responsibilities,\\\" RSA 461-A:3 (Supp. 2016), and is not limited to divorce cases, see RSA 461-A:13 (\\\"The petition for visitation shall be entered in the court which has jurisdiction over the divorce, legal separation, or a proceeding brought under this chapter.\\\"). The sentence of RSA 458:17, VI, as amended in 1991, that authorized stepparent and grandparent visitation was incorporated into RSA 461-A:6, V. Compare RSA 458:17, VI, with RSA 461-A:6, V. RSA 461-A:13 replaced RSA 458:17-d, and the two statutes are substantially similar. Compare RSA 458:17-d, with RSA 461-A:13.\\nGenerally, \\\"[w]e will not construe a statute . as abrogating the common law unless the statute clearly expresses such an intention.\\\" Univ. Sys. of N.H. Bd. of Trs. v. Dorfsman, 168 N.H. 450, 454 (2015) (quotation omitted). However, when a statute revises the entire subject of a common law cause of action and is clearly designed as a substitute, the common law is abrogated, although no express terms to that effect are used. See Powell v. Catholic Med. Ctr., 145 N.H. 7, 11 (2000). This rule rests upon the principle that:\\n[W]hen the legislature frames a new statute upon [a] subject-matter, and from the framework of the act it is apparent that the legislature designed a complete scheme for this matter, it is a legislative declaration that whatever is embraced in the new law shall prevail, and whatever is excluded is discarded.\\nId. (quotation and ellipsis omitted). We conclude that RSA 458:17, VI, as amended in 1991, and RSA 458:17-d abrogated the common-law right to petition for visitation because the statutes revised the entire subject of visitation and were designed as a substitute.\\nThe legislature's intent to revise the entire subject of visitation is evident because RSA 458:17, VI, as amended in 1991, and RSA 458:17-d conferred standing upon stepparents and grandparents to seek visitation in the same circumstances that the common law, together with the earlier version of RSA 458:17, VI, conferred standing upon those with whom a child had formed a close extra-parental relationship. RSA 458:17-d specifically permitted grandparents standing to seek visitation in \\\"the absence of a nuclear family.\\\" RSA 458:17-d, I; see O'Brien v. O'Brien, 141 N.H. 435, 436-37 (1996) (construing RSA 458:17-d to authorize grandparent visitation only when one of the following conditions has come to pass: \\\"divorce, death, relinquishment or termination of parental rights, or other cause of the absence of a nuclear family\\\" (quotation omitted)). The common law conferred standing upon those with whom a child had formed a close extra-parental relationship in substantially similar circumstances. Roberts, 126 N.H. at 390-92 (discussing court's parens patriae power to grant visitation in certain circumstances outside of divorce proceedings, and explaining that RSA 458:17, VI controlled visitation in divorce proceedings). In fact, the legislature incorporated the very language used in Roberts-, \\\"the absence of a nuclear family.\\\" RSA 458:17-d, I; RSA 461-A:13, I; see Roberts, 126 N.H. at 392.\\nThe fact that RSA 458:17, VI, as amended in 1991, and RSA 458:17-d did not simply codify Roberts, but rather significantly altered the standard we articulated in Roberts, demonstrates that the statutes were designed as a substitute for the common law. The statutes altered the common law in four respects. First, the legislature circumscribed the class of people who could petition for visitation. When it amended RSA 458:17, VI in 1991, the legislature permitted only grandparents and stepparents to seek visitation. Laws 1991, 93:1. By contrast, the common law conferred standing to seek visitation upon anyone with whom a child had formed a close extra-parental relationship. Roberts, 126 N.H. at 392. Second, RSA 458:17-d changed the manner in which courts decide whether to grant grandparent visitation. The statute required courts to consider the factors that, in Roberts, we only suggested, but did not require, that they consider. See RSA 458:17-d, II (listing factors suggested in Roberts); Roberts, 126 N.H. at 394. It also added two factors that courts must consider. See RSA 458:17-d, II (requiring courts to also address a guardian ad litem's recommendation and whether visitation would interfere with parent's authority over child or with parent-child relationship); Roberts, 126 N.H. at 394. Third, RSA 458:17-d added the significant caveat that no visitation would be permitted if the grandparent's access to the child had been \\\"restricted for any reason\\\" prior to the triggering condition. RSA 458:17-d, I. Finally, the statute dictated where the petition should be filed and allocated the costs of the petition. RSA 458:17-d, III, VII.\\nAccordingly, we now hold that the common-law right to petition for visitation was superseded by the enactment of RSA 458:17, VI, as amended in 1991, and RSA 458:17-d because the legislature revised the entire subject of visitation, and the statutes were clearly designed as substitutes for the common law. The legislature preserved that statutory scheme when it enacted RSA 461-A:6, V and RSA 461-A:13. Therefore, we conclude that the trial court did not err when it did not consider its parens patriae power as a basis to order great-grandparent visitation. Thus, we affirm the trial court's dismissal of the great-grandparents' petition for visitation for lack of standing.\\nFinally, any issues raised in the notice of appeal, but not briefed, are deemed waived. See Town of Barrington v. Townsend, 164 N.H. 241, 251 (2012).\\nAffirmed.\\nDalianis, C.J., and Conboy, Lynn, and Bassett, JJ., concurred.\"}" \ No newline at end of file diff --git a/nh/1294860.json b/nh/1294860.json new file mode 100644 index 0000000000000000000000000000000000000000..f4aecebd72be3724bfce49f888c0d1526d33f0f5 --- /dev/null +++ b/nh/1294860.json @@ -0,0 +1 @@ +"{\"id\": \"1294860\", \"name\": \"Burnham & Company v. Richard Kleinhans, Jr.\", \"name_abbreviation\": \"Burnham & Co. v. Kleinhans\", \"decision_date\": \"1974-07-19\", \"docket_number\": \"No. 6813\", \"first_page\": 472, \"last_page\": \"474\", \"citations\": \"114 N.H. 472\", \"volume\": \"114\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Supreme Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-10T22:48:46.073990+00:00\", \"provenance\": \"CAP\", \"judges\": \"All concurred.\", \"parties\": \"Burnham & Company v. Richard Kleinhans, Jr.\", \"head_matter\": \"Rockingham\\nNo. 6813\\nBurnham & Company v. Richard Kleinhans, Jr.\\nJuly 19, 1974\\nArthur J. Reinhart and Charles M. Eldredge (Mr. Eldredge orally) for the plaintiff.\\nMaurice J. Murphy, Jr. and Richard M. Kleinhans, Jr., pro se (Mr. Kleinhans orally), for the defendant.\", \"word_count\": \"646\", \"char_count\": \"4001\", \"text\": \"Grimes, J.\\nDismissal of an action on the case and of bill in equity for unjust enrichment raises issues of burden of proof and of whether a foreign partnership, on the basis of business conducted by phone and mail, is doing such business as to require registration with the secretary of state before maintaining suit in this State. Plaintiff's suits were dismissed solely on the jurisdictional issue under RSA S05 A:4 and an exception was reserved and transferred by Perkins, J.\\nPlaintiff alleges it is a limited partnership, a stockbroker, a member of the New York Stock Exchange, and that it has a place of business in New York City. Plaintiff further alleges that defendant has maintained an account with plaintiff whereby defendant occasionally ordered the purchase and sale of securities. As of the end of 1970, defendant's account with plaintiff, according to its records, showed a debit of approximately $1,700. A subsequent sale of approximately $5,000 worth of securities gave defendant roughly a $3,300 credit. Plaintiff alleges that in February 1971, in balancing these transactions, it accidently overpaid defendant more than $2,000, which defendant has now refused to repay.\\nThe parties agree that plaintiff maintains no agents or place of business in New Flampshire. It appears the partnership conducted its services solely through the mails and by phone. The motion to dismiss alleges merely that the plaintiff was a foreign partnership which had not been registered with the secretary of state. The motion appears to have been granted on the basis of the plaintiff's failure to show compliance with RSA ch. 305-A (Supp. 1973). The issues on appeal, therefore, are which party has the burden of proving compliance with the statute and whether that party has met its burden.\\nRSA 305-A: 1 (Supp. 1973) provides that every foreign partnership, including limited partnerships, desiring to \\\"do business\\\" in the State, must register and pay an annual fee to the secretary of state. RSA 305-A:4 provides that a partnership failing to comply cannot sue in the courts of the State. Chapter 305-A, in its language and purpose, is modeled on RSA ch. 300 which requires registration of foreign corporations. N.H.S. Jour. 784 (1965). We see no good reason to distinguish the two chapters. Accordingly, on authority of R.C. Allen Bus. Mach., Inc. v. Acres, 111 N.H. 269, 281 A.2d 162 (1971), the incapacity of the partnership to sue is an affirmative defense which defendant must plead and prove. Defendant's argument that this burden is too onerous, is more easily carried out by plain tiff and, therefore, should be placed on plaintiff is rejected. Id. at 272, 281 A.2d at 164.\\nOn the facts presented, we think defendant failed to carry this burden. The quantum of activity constituting \\\"doing business\\\" under this type of statute is greater than that which subjects a corporation to jurisdiction. Myers Company v. Piche, 109 N.H. 357, 252 A.2d 427 (1969). The single item of evidence introduced was a letter from the secretary of state indicating plaintiff had not registered. By itself, the letter is not enough for defendant to prevail on his motion. R.C. Allen Bus. Mach., Inc. v. Acres, 111 N.H. 269, 281 A.2d 162 (1971). Further, in order to require registration, defendant must prove at least some of plaintiff's transactions were wholly intrastate. On appeal it was disclosed plaintiff had registered with the insurance commissioner as a dealer in securities pursuant to RSA ch. 421. Compliance with this chapter does not, as a matter of law, compel registration under RSA ch. 305-A since a securities dealer could be conducting exclusively interstate transactions.\\nPlaintiff's exception sustained; remanded.\\nAll concurred.\"}" \ No newline at end of file diff --git a/nh/1294904.json b/nh/1294904.json new file mode 100644 index 0000000000000000000000000000000000000000..9c72486a7ce137458438950ebdd473cf0f34d156 --- /dev/null +++ b/nh/1294904.json @@ -0,0 +1 @@ +"{\"id\": \"1294904\", \"name\": \"State of New Hampshire v. Ronald Maynard\", \"name_abbreviation\": \"State v. Maynard\", \"decision_date\": \"1974-07-30\", \"docket_number\": \"No. 6827\", \"first_page\": 525, \"last_page\": \"527\", \"citations\": \"114 N.H. 525\", \"volume\": \"114\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Supreme Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-10T22:48:46.073990+00:00\", \"provenance\": \"CAP\", \"judges\": \"All concurred.\", \"parties\": \"State of New Hampshire v. Ronald Maynard\", \"head_matter\": \"Nashua District Court\\nNo. 6827\\nState of New Hampshire v. Ronald Maynard\\nJuly 30, 1974\\nWarren B. Rudman, attorney general, and Thomas D. Rath, assistant attorney general, by brief, for the State of New Hampshire.\\nProlman & Holland, by brief, for the defendant.\", \"word_count\": \"636\", \"char_count\": \"3742\", \"text\": \"Grimes, J.\\nThe issue in this case is whether a police officer may properly stop a motor vehicle when he honestly and reasonably believes the driver may be suffering from a health problem.\\nDefendant was charged and convicted of operating a motor vehicle while under the influence of intoxicating liquor in violation of RSA 262-A:62 (Supp. 1973). He made an oral motion to dismiss the case on the ground that his constitutional rights under both the New Hampshire and the United States Constitutions had been violated when he was stopped while driving his vehicle. The question raised by the defendant's motion was transferred by Harkaway, J., on an agreed statement of facts.\\nIt has been agreed that on August 7, 1973, at about 12:50 a.m., a Nashua police officer noticed defendant's vehicle proceeding north on Main Street and that it was traveling at a fast rate of speed and \\\"appeared to come to a somewhat quick slowing down when the police vehicle would have first been visible.\\\" As the vehicle proceeded, the police officer followed it and \\\"noticed it swerved one time within the defendant's own lane without crossing any of the lines.\\\" The officer stopped the vehicle. It is further agreed \\\"the officer testified that he had no suspicion that the defendant had committed any crime or was about to commit a crime and that he was not in the midst of a routine check of license or registration and the officer was not about to issue a warning or make an arrest for any violation. The officer testified that he felt there might be something physically wrong with the driver of the vehicle and that was the reason for which the vehicle was stopped.\\\"\\nDefendant contends that the evidence leading to his being arrested and charged with a violation of RSA 262-A.-62 (Supp. 1973) was obtained when he was being illegally detained and that the evidence is inadmissible against him under Mapp v. Ohio, 367 U.S. 643 (1961), and Terry v. Ohio, 392 U.S. 1 (1968). See also Davis v. Mississippi, 394 U.S. 721 (1969).\\nIn our opinion this case is governed by State v. Severance, 108 N.H. 404, 237 A.2d 683 (1968). There the court quoted the following language from Myricks v. United States, 370 F.2d 901, 904 (5th Cir. 1967): \\\"The State can practice preventative therapy by reasonable road checks to ascertain whether man and machine meet the legislative determination of fitness . The purpose of the check is to determine the present, not the past: is the car, is the driver now fit for further driving?\\\"\\nIn Severance the police were conducting a road check in which they were stopping all vehicles proceeding in one direction. It was when the Severance car was thus stopped that the police discovered evidence of intoxication. It was held that such checks violated no constitutional rights so long as they are not used as a subterfuge for uncovering evidence of other crimes and that evidence of other crimes coming into view while conducting such good-faith check is admissible.\\nCertainly if officers may in good faith conduct a road check for the purpose of determining the fitness of drivers, they may so do when they in good faith reasonably believe that the driver of a particular vehicle may be ill and physically unfit to drive. The key, however, is whether the officer acted reasonably and in good faith and not by subterfuge to obtain evidence of a crime. The burden was on the prosecution to prove reasonableness and good faith.\\nDefendant's exceptions overruled.\\nAll concurred.\"}" \ No newline at end of file diff --git a/nh/1307098.json b/nh/1307098.json new file mode 100644 index 0000000000000000000000000000000000000000..f96cfd795343817c4daaf827752f861d36991470 --- /dev/null +++ b/nh/1307098.json @@ -0,0 +1 @@ +"{\"id\": \"1307098\", \"name\": \"State (ex rel. Duke & a.) v. Marston\", \"name_abbreviation\": \"State ex rel. Duke v. Marston\", \"decision_date\": \"1888-06\", \"docket_number\": \"\", \"first_page\": 603, \"last_page\": \"604\", \"citations\": \"64 N.H. 603\", \"volume\": \"64\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Supreme Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-10T17:29:37.953340+00:00\", \"provenance\": \"CAP\", \"judges\": \"Carpenter, J., did not sit: the others concurred.\", \"parties\": \"State (ex rel. Duke & a.) v. Marston.\", \"head_matter\": \"State (ex rel. Duke & a.) v. Marston.\\nA petition under Laws of 1887, c. 77, must allege that the building complained against is used for the illegal sale or keeping for sale of spirituous or malt liquors.\\nSuch a petition ought to be framed according to the forms in equity, prescribed by the rules of court.\", \"word_count\": \"970\", \"char_count\": \"5534\", \"text\": \"Smith, J.\\nThis is a petition under Laws 1887, c. 77, signed by twenty legal voters of the town of Berlin, and is as follows:\\n\\\"Coos ss. To the Supreme Court:\\n\\\" The undersigned petitioners, legal voters of the town of Berlin in said county of Coos, complain against the building known as the Cascade House, situated in said town of Berlin, on the westerly side of Main street in Berlin Falls village in said Berlin, and say that said building is occupied by its owner, Henry F. Marston, his clerks, servants, and employes, for the purpose of selling and keeping for sale spirituous and malt liquors, wine, and cider, and is a common nuisance.\\n\\\"Wherefore your petitioners pray that said building may be adjudged a common nuisance, and that said Henry F. Marston, his clerks, servants, and employes, and all other persons who shall occupy the said building, may be forever enjoined and restrained from keeping for sale or selling spirituous or malt liquors, wine, or cider, in or upon said premises.\\\"\\nThe defendants demur, and the question is as to the sufficiency of the petition. The statute is as follows:\\n\\\" Section 1. Any building, place, or tenement, in any town or city, that is resorted to for prostitution, lewdness, or illegal gaming, or that is used for the illegal sale or keeping for sale of spirituous or malt liquors, wine, or cider, is declared to be a common nuisance.\\n\\\" Section 2. The supreme court shall have jurisdiction in equity, upon information filed by the solicitor for the county, or upon petition of not less than twenty legal voters of such town or city, setting forth any of the facts contained in Section 1 of this act, to restrain, enjoin, or abate the same, and an injunction for such purpose may be issued by said court or any justice thereof.\\\"\\nThe petition alleges that the building complained of \\\" is occupied by its owner . . . for the purpose of selling,\\\" etc. This is obscure. It may mean that the occupant has an unexecuted intent to use the building for selling, etc. It may mean that the building is so used. In civil actions, where words are used which bear a natural sense and an artificial sense, they may be taken either way against the party pleading; and if either' sense will operate against the pleader, his pleading is defective. Gould Pl., c. 3, s. 54. The purpose of the occupant is immaterial so long as it is not carried into effect. It is the use made of the building for illegal purposes which makes the building a common nuisance.\\nLadd & Fletcher and D. J. Daley, for the defendants.\\nR. N. Chamberlin, for the petitioners.\\nThere is no allegation that the selling or keeping for sale is illegal. The sale of cider in quantities of ten gallons and upwards is not illegal; and sales of intoxicating liquor by a town agent within the limitations of his appointment are legal. The petition is defective in these two particulars.\\nThe petition is informal, at least, in that it is not framed according to the form prescribed for a bill in equity. See forms in equity in the rules of court, 56 N. H. 612. The petitioners \\\"complain .against the building.\\\" The owner, who is also the occupant, is not in terms made defendant. The \\\"person \\\" and \\\" case \\\" may, perhaps, \\\"be rightly understood by the court\\\" without amendment (G. L., c. 226, s. 8) ; but the forms for proceedings in equity were prepared by the late Chief-Justice Bell (than whom no one was better qualified), to secure uniformity of procedure, to avoid obscurity and uncertainty, to facilitate trials, and to diminish the expense of litigation. Conformity to the rules ought therefore to be observed. This is not a proceeding for the forfeiture of any property real or personal, and in that respect is unlike State v. Barrels of Liquor, 47 N. H. 369, State v. Rum, 51 N. H. 373, State v. Whiskey, 54 N. H. 164, and State v. Tufts, 56 N. H. 137. The building is made a common nuisance by its illegal use. The nuisance may be abated by an injunction against the illegal .use, and by legal process for enforcing the injunction.\\nA general description of the illegal use that constitutes the nuisance would seem to be all that the statute requires, or that would ordinarily be practicable. A particular description of the liquor kept or sold, with the particulars of the various sales and the like, might not always be convenient or possible, and if required, the object of the statute would be defeated. State v. Whiskey, 54 N. H. 164, 166.\\nThe defendants have not, by brief or otherwise, indicated their grounds of demurrer; and the question whether there are other defects in the petition is not decided.\\nAs to the .other petitions, where there is no allegation that the occupants were the owners of the buildings, and in which demurrers were also filed, we are of opinion that such allegation is not necessary. The owner need not necessarily be joined with the \\u2022occupant as defendant. He may be unknown, or there may be numerous owners and widely scattered. A petition may be maintained against the occupant; but the injunction would not be issued against an owner who was not a defendant, and who had not had notice and an opportunity to be heard.\\nDemurrer sustained.\\nCarpenter, J., did not sit: the others concurred.\"}" \ No newline at end of file diff --git a/nh/1307250.json b/nh/1307250.json new file mode 100644 index 0000000000000000000000000000000000000000..67b20f16dfcca007f47c42d32fc85abd839fe62f --- /dev/null +++ b/nh/1307250.json @@ -0,0 +1 @@ +"{\"id\": \"1307250\", \"name\": \"Mowry v. Blandin\", \"name_abbreviation\": \"Mowry v. Blandin\", \"decision_date\": \"1885-12\", \"docket_number\": \"\", \"first_page\": 3, \"last_page\": \"5\", \"citations\": \"64 N.H. 3\", \"volume\": \"64\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Supreme Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-10T17:29:37.953340+00:00\", \"provenance\": \"CAP\", \"judges\": \"Blodgett, Carpenter, and Bingham, JJ., did not sit: the others concurred.\", \"parties\": \"Mowry v. Blandin.\", \"head_matter\": \"Mowry v. Blandin.\\nAn assessment of a joint and undivided tax upon lots of land owned by different persons is not authorized by the statutes, and is not legalized by a general healing act.\\nSection- 14, c. 58, Gen. Laws, providing for the publication of notice for three successive weeks, at least six weeks before a sale, requires the last publication to be at least six weeks before the sale.\\nTitle acquired after the commencement of the suit should be pleaded in bar of the further maintenance of the action.\", \"word_count\": \"1246\", \"char_count\": \"6925\", \"text\": \"Smith, J.\\nThis is a writ of entry for a lot of land in Bethlehem known as the Ira G. Eastman place, which formerly belonged to the Waumbec Lumber Company, from whom the plaintiff claims to have derived title by conveyances. The defendant has three conveyances from the tax-collector, who sold the land for non-payment of taxes in 1877, 1878, and 1880. The tax of 1877 was a joint and indivisible tax, assessed upon this lot and other land of other persons, appraised together at $600. There was no statute authorizing such an assessment; and c. 64, Laws of 1877, legalizing the taxes assessed in the town that year, is presumed to have been intended to cure defects of irregularity only, and not to authorize an unjust sale- of this lot for an inseverable tax assessed on it and on another lot belonging to other persons. Cooley Const. Lim. 370, 379, n. 1, 382, n. 1. White Mountains Railroad v. White Mountains (N. H.) Railroad, 50 N. H. 50, 77; Rich v. Flanders, 39 N. H. 304; Kent v. Gray, 53 N. H. 576; Tifft v. City of Buffalo, 82 N. Y. 204; Jennings v. Collins, 99 Mass. 29; Barker v. Blake, 36 Me. 433; Hamilton v. City of Fond du Lac, 25 Wis. 490; Siegel v. Outagamie, 26 Wis. 70; Wright v. Cradlebaugh, 3 Nev. 341; Shimmin v. Inman, 26 Me. 228; Crane v. Janesville, 20 Wis. 305; People v. San Francisco Sav. Union, 31 Cal. 132, 139; Schumacker v. Toberman, 56 Cal. 508, 511; People v. Lynch, 51 Cal. 15; Thames Mfg. Co. v. Lathrop, 7 Conn. 550; People v. Goldtree, 44 Cal. 323; Hart v. Henderson, 17 Mich. 218; Desty, Taxation, 616-622; Black., Tax Tit., 106, 107. Without another appraisal determining the value of this lot, its owner's share of the public expense could not be ascertained. There was no assessment of his share, and the error was not corrected. Gen. Laws, c. 57, s. 10.\\nThe sale May 30, 1879, for the taxes of 1878, was not valid as against the plaintiff. The statute required the sale to be advertised by \\\" publication for three successive weeks in some newspaper printed in the county or judicial district in which said town is situate, at least six weeks before the sale.\\\" G. L., c. 58, s. 14. This part of the statute was repealed July 19, 1879 (Laws of 1879, c. 57, s. 12), but was in force at the time of the sale, having been enacted July 11, 1878 (Laws of 1878, c. 9). \\\"Publication for three successive weeks' , at least six weeks before the sale,\\\" means that the last publication shall be at least six weeks before the sale. This provision of the statute is mandatory, and not directory merely. If this were not so, publication might be wholly dispensed with. The provision in regard to advertising non-resident land is different. The statute requires the collector, on or before the first day of January following the assessment, to advertise the property on which the taxes have not been paid, \\\" three weeks successively, commencing at least eight weeks before the sale; \\\" and it has been held that the advertisement is seasonably published if the first publication is on the first day of January. French v. Spaulding, 61 N. H.-.\\nApril 1, 1880, when the tax of that year was assessed, the title to the premises in dispute stood as follows: Mowry, the plaintiff, was mortgagee; Smith, assignee in bankruptcy of the Waumbec Lumber Company, owned the equity of redemption; and Blandin, the defendant, was in possession by Gordon his tenant, claiming title under the collector's deed dated June 17, 1879. Mowry and Smith were non-residents. Whether Blandin was resident or nonresident does not appear; nor is it material, as he then had no-valid title to the premises. The statute .is, \\\"Real and personal property shall be taxed to the person claiming the same, or to the person wild is in possession and actual occupancy thereof, if such person will consent to be taxed for the same; but such real estate shall be taxed in the town in which it is situate.\\\" \\\" If any person not the owner is living on any farm or in any house on the first day of April, and refuses to be taxed for it, it shall be taxed as resident by the number of the lot, or such other description as it is commonly known by, with the name of the occupant as such; and estate so taxed shall be holden and liable to be sold in the same manner as the real estate of residents is holden and sold for taxes.\\\" G. L., c. 54, ss. 11, 19. By the word \\\" person,\\\" as used in the statute, is meant \\\"inhabitant of the town.\\\" Cushing, C. J., in Bowles v. Clough, 55 N. H. 389, 390. The premises could not be taxed to Mowry as claimant, under s. 11, for he was not an inhabitant of the town. They might and should have been taxed to Gordon as occupant, with his consent. They were taxed under s. 19, by the description \\\" F. Gordon, occupant,\\\" and with the name \\\" Eastman, Ira G. place.\\\" A strict compliance with the statute would have reversed the name and description, but the informality is not sufficient to invalidate the assessment, if it is valid in other respects, for it was not such as to mislead any one.\\nDrew, Jordan & Carpenter and Bingham, Mitchells & Batchellor, for the plaintiff.\\nAldrich & Remich, for the defendant.\\nThe case finds the premises were known as the \\\"Ira G. Eastman place,\\\" and that Gordon was the occupant. The description is therefore sufficient. The case does not find that Gordon refused, or consented. The inference from the fact that consent is not found is, that he refused, and the premises were properly taxed under s. 19. Perley v. Stanley, 59 N. H. 587; Bowles v. Clough, 55 N. H. 389: Perham v. Fibre Co., ante 2.\\nIt is objected that the sale and deed to the defendant took place after the commencement of this suit, and he has not pleaded the title thus acquired. Title acquired after the commencement of a suit should be pleaded in bar of the further maintenance of the action. Bailey v. March, 3 N. H. 274.\\nIt is also objected, that the defendant being in possession and taking the rents and profits, it was his duty to pay the taxes, and therefore is estopped to set up a title acquired from the sale for the non-payment of taxes; also, that no notice of the tax was given to the owner or occupant. Upon these points we express no opinion, as the case is decided against the defendant upon the other grounds already considered. Upon the pleadings the plaintiff is entitled to judgment.\\nCase discharged.\\nBlodgett, Carpenter, and Bingham, JJ., did not sit: the others concurred.\"}" \ No newline at end of file diff --git a/nh/1401697.json b/nh/1401697.json new file mode 100644 index 0000000000000000000000000000000000000000..956aff25ff4fb09ef0537c000f345149a97d6165 --- /dev/null +++ b/nh/1401697.json @@ -0,0 +1 @@ +"{\"id\": \"1401697\", \"name\": \"The State of New Hampshire v. Alexander R. Cole\", \"name_abbreviation\": \"State v. Cole\", \"decision_date\": \"1997-12-30\", \"docket_number\": \"No. 95-863\", \"first_page\": 519, \"last_page\": \"523\", \"citations\": \"142 N.H. 519\", \"volume\": \"142\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Supreme Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-10T18:39:26.319542+00:00\", \"provenance\": \"CAP\", \"judges\": \"All concurred.\", \"parties\": \"The State of New Hampshire v. Alexander R. Cole\", \"head_matter\": \"Grafton\\nNo. 95-863\\nThe State of New Hampshire v. Alexander R. Cole\\nDecember 30, 1997\\nJeffrey R. Hoivard, attorney general (Richard J. Lehmann, attorney, on the brief and orally), for the State.\\nJames E. Duggan, chief appellate defender, of Concord, by brief and orally, for the defendant.\\nAlexander R. Cole, by brief, pro se.\", \"word_count\": \"1607\", \"char_count\": \"9749\", \"text\": \"JOHNSON, J.\\nThe defendant, Alexander R. Cole, was convicted of one count of felonious sexual assault, see RSA 632-A:3, III (1996), and sentenced to an extended term of imprisonment pursuant to RSA 651:6, 11(d) (1996). On appeal, he argues that the Superior Court (Smith, J.) erred in refusing to rule on the admissibility of two prior convictions for impeachment purposes, see N.H. R. EV. 609, before the defendant had decided whether to testify, and that the State failed to prove all material elements of the felonious sexual assault charge. The defendant also argues, and the State concedes, that it was improper for the court to sentence him under RSA 651:6, 11(d), where his two prior offenses were court martial convictions. We affirm the defendant's conviction but vacate and remand for a new sentence.\\nThe following facts were adduced at trial. In February 1995, the eleven-year-old victim was walking home from a dance at the Carter Community Building in Lebanon when a man wearing a green jacket began following him. The man then walked in front of the victim and proceeded to expose his genitals to the victim. The victim testified that as he tried to run past the man, the man blocked his way and the victim was knocked down. The victim testified that during the incident, the man grabbed the victim's penis. The defendant was subsequently arrested and convicted of one count of felonious sexual \\u00e1ssault. During sentencing, the superior court considered the defendant's two prior court martial convictions in imposing an enhanced sentence of twenty to forty years. This appeal followed.\\nThe defendant first argues that the trial court erred in refusing to rule on the admissibility of prior convictions before he decided whether to testify. Before trial, the State moved in limine to introduce two prior court martial convictions, one for sodomy and the other for indecent exposure, as impeachment evidence pursuant to New Hampshire Rule of Evidence 609. In chambers, the trial court noted that the State's motion was \\\"a relatively poor attempt to get around [Rule] 404(b).\\\" The State nonetheless argued that these convictions were relevant to the issue of credibility because the defendant had told police that he had been honorably discharged from the Army. In response, the court reiterated its belief that the State's motion was \\\"an attempt to get around 404(b).\\\" Additionally, the State argued that it should be able to question the defendant about whether he was attracted to young boys and, if the defendant denied such attraction, about the two convictions. The court refused to rule before the defendant had decided whether to take the stand, reasoning that it was unable to rule \\\"in a vacuum\\\" and that \\\"it may be moot in any event.\\\"\\nOn appeal, the defendant argues that the court's refusal to rule violated his constitutional right to testify in his own defense. Compare Apodaca v. People, 712 P.2d 467, 472-73 (Colo. 1985) (refusal to rule impermissibly burdens defendant's due process right to testify in his own defense) with United States v. Masters, 840 F.2d 587, 590-91 (8th Cir. 1988) (no constitutional entitlement to ruling even if refusal inhibits defendant from testifying on his own behalf). We will not engage in a constitutional analysis, however, because counsel did not raise a constitutional basis for his objection at trial. State v. Weeks, 140 N.H. 463, 467, 667 A.2d 1032, 1035 (1995).\\nThe defendant concedes that \\\"defense counsel did not expressly invoke the defendant's right to testify in his objection,\\\" because he argued only that \\\"tactically I need to know in advance how the Court's going to rule on this issue before I proceed.\\\" The defendant argues that the constitutional issue was preserved nonetheless because the \\\"judge's response indicates he understood that the defense wanted a ruling so the defendant could decide whether he should testify.\\\" The purpose of our preservation requirement is to ensure that the trial court is made aware of the substance of the objection and thus given an opportunity to correct the error, see, e.g., State v. Ryan, 135 N.H. 587, 589, 607 A.2d 954, 955 (1992), and to discourage \\\"parties unhappy with the trial result [from combing] the record, endeavoring to find some alleged error never addressed by the trial judge that could be used to set aside the verdict,\\\" State v. Menard, 133 N.H. 708, 710, 584 A.2d 752, 754 (1990).\\nThe exchange between counsel and the trial judge was sufficient to preserve the issue of whether the trial judge erred in refusing to rule, but not the constitutional component of the objection, because the constitutional implications of the trial court's decision were not made clear to the trial judge. See State v. Giordano, 138 N.H. 90, 93, 635 A.2d 482, 483 (1993) (because \\\"defendant did not frame an argument in constitutional terms below,\\\" he cannot do so on appeal). Counsel's objection was made pretrial, and as such, the range of tactical decisions affected by the court's ruling was not limited to whether the defendant was going to testify. Cf. State v. McClure, 692 P.2d 579, 583 (Or. 1984) (reciting number of tactical decisions influenced by ruling on admissibility). Accordingly, because \\\"the constitutional dimension of the defendant's argument was not called to the trial court's attention,\\\" State v. Plante, 134 N.H. 456, 459, 594 A.2d 1279, 1282 (1991), we review the court's refusal to make a pretrial ruling on the admissibility of the defendant's prior court martial convictions for an abuse of discretion only. See Giordano, 138 N.H. at 93, 635 A.2d at 483.\\nTo show an abuse of discretion, the defendant must show that \\\"the trial court's ruling was clearly untenable or unreasonable to the prejudice of his case.\\\" State v. Gooden, 133 N.H. 674, 677, 582 A.2d 607, 609 (1990) (quotation omitted). A number of courts have declared, and we concur, that, although not absolutely required, trial courts should rule on the admissibility of prior convictions as impeachment evidence as early as practicable. See, e.g., United States v. Oakes, 565 F.2d 170, 171 (1st Cir. 1977); Johnson v. State, 666 So. 2d 499, 502 (Miss. 1995); cf. State v. Staples, 120 N.H. 278, 285, 415 A.2d 320, 324 (1980) (decided under prior law) (expressing preference for defense counsel to challenge admissibility of impeachment evidence pretrial). Courts have been reluctant, however, to find an abuse of discretion where the trial court has refused to issue a ruling pretrial, see, e.g., United States v. Witschner, 624 F.2d 840, 844 (8th Cir.), cert. denied, 449 U.S. 994 (1980), even where refusal to rule might discourage the defendant from testifying, Masters, 840 F.2d at 590. Trial courts have no inherent \\\"duty to aid the defendant in formulating his trial strategy regarding the risks of impeachment should he decide to take the stand.\\\" Witschner, 624 F.2d at 844. Furthermore, it is not \\\"practicable for an appellate court to launch itself into the business of second-guessing trial judges on a matter so intimately bound up with the conduct of trial, given the myriad individual circumstances and considerations that will affect different cases.\\\" Oakes, 565 F.2d at 173. Accordingly, we agree with those courts that find reversible error only where there has been \\\"a clear abuse of discretion.\\\" Masters, 840 F.2d at 591.\\nIn this case, the defendant failed to demonstrate that the trial court's refusal to rule was clearly unreasonable to the prejudice of his case. Defense counsel, in his objection, made no argument against admissibility and gave no indication of the potential prejudice to his case. Cf. N.H. R. EV. 609(a) (court may admit certain evidence of prior crimes if probative value outweighs prejudice to the defendant). Counsel merely stated in general terms that \\\"tactically I need to know in advance how the court's going to rule.\\\" We find that because the defendant's objection was vague at best, the trial court did not act unreasonably in postponing its decision to rule. As such, \\\"[a]n advance ruling would have required speculation the trial court was not required to undertake.\\\" United States v. Kennedy, 714 F.2d 968, 975 (9th Cir. 1983), cert. denied, 465 U.S. 1034 (1984). Similarly, we can only speculate about the nature and content of the defendant's case had the court issued a ruling pretrial and its effect on the entire proceeding. Cf. Staples, 120 N.H. at 284, 415 A.2d at 324 (this court \\\"cannot base a finding that the trial court abused its discretion upon mere speculation\\\"). Accordingly, we find no error.\\nThe defendant next argues that the State failed to prove the mens rea element of the offense of felonious sexual assault, i.e., that the contact involved was done intentionally and \\\"for the purpose of sexual arousal or gratification,\\\" RSA 632-A:l, IV (1996). See RSA 632-A:3, III. This issue was not preserved for appellate review. At trial, defense counsel argued that the State failed to prove the actus reus element, not mens rea. Moreover, this issue was not raised in the defendant's notice of appeal. See State v. Horne, 136 N.H. 348, 349, 615 A.2d 1251, 1252 (1992).\\nFinally, the State concedes that it was improper for the trial court to impose an extended sentence under RSA 651:6, 11(d). Accordingly, we vacate the defendant's sentence and remand for resentencing.\\nConviction affirmed; sentence vacated; remanded for resentencing.\\nAll concurred.\"}" \ No newline at end of file diff --git a/nh/1401823.json b/nh/1401823.json new file mode 100644 index 0000000000000000000000000000000000000000..53bcd5c754920599915727593c2edfc4c4805658 --- /dev/null +++ b/nh/1401823.json @@ -0,0 +1 @@ +"{\"id\": \"1401823\", \"name\": \"Appeal of Merrimack County Board of Commissioners (New Hampshire Public Employee Labor Relations Board)\", \"name_abbreviation\": \"Appeal of Merrimack County Board of Commissioners\", \"decision_date\": \"1998-05-14\", \"docket_number\": \"No. 96-162\", \"first_page\": 768, \"last_page\": \"772\", \"citations\": \"142 N.H. 768\", \"volume\": \"142\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Supreme Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-10T18:39:26.319542+00:00\", \"provenance\": \"CAP\", \"judges\": \"All concurred.\", \"parties\": \"Appeal of Merrimack County Board of Commissioners (New Hampshire Public Employee Labor Relations Board)\", \"head_matter\": \"Public Employee Labor Relations Board\\nNo. 96-162\\nAppeal of Merrimack County Board of Commissioners (New Hampshire Public Employee Labor Relations Board)\\nMay 14, 1998\\nGeorge A. Stewart, assistant county attorney, of Concord, by brief and orally, for the petitioner.\\nMichael C. Reynolds, general counsel, State Employees\\u2019 Association of New Hampshire, Inc., S.E.I.U., AFL-CIO, CLC Local 1984, of Concord, by brief and orally, for the respondent.\", \"word_count\": \"1287\", \"char_count\": \"8037\", \"text\": \"HORTON, J.\\nThe petitioner, Merrimack County Board of Commissioners (county), appeals a decision of the New Hampshire Public Employee Labor Relations Board (PELRB). See RSA 273-A:14 (1987); RSA 541:6 (1997). The PELRB denied the county's claim that the respondent, the State Employees Association (SEA), committed an unfair labor practice by demanding arbitration of a non-arbitrable matter and ordered the parties to arbitration. We reverse.\\nThe SEA is the exclusive representative of certain employees at the Merrimack County Department of Corrections. The county and the SEA negotiated numerous collective bargaining agreements (CBA) over the past decade; the present dispute involves the CBA effective April 1, 1994, through April 1, 1997. The previous CBAs contained a five-step wage schedule for annual wage increases within each labor grade. Each CBA consistently established the effective date for annual step increases to be the employee's anniversary date, i.e.: (1) the date of an employee's entrance or reentrance into county employment for employees hired after April 1, 1977; and (2) July 1 for all other employees. The CBA at issue added three new step levels to each labor grade but did not modify the existing provision establishing the anniversary date for each employee's annual increase.\\nSubsequently, the SEA demanded that all employees who had reached the maximum wage level prior to the CBA at issue receive an immediate step increase on July 1, 1994, rather than on their regular anniversary date. Essentially, the SEA demanded that the \\\"maxed out\\\" employees receive a \\\"catch up\\\" step increase so that they would receive a second step increase at the time the remaining employees received their first. The county refused on the basis that the \\\"maxed out\\\" employees were only entitled to a step increase on their regular anniversary dates and were not entitled to an \\\"early\\\" step increase. The SEA demanded that the county submit the dispute to binding arbitration under Article XVIII of the CBA, which states:\\nThe purpose of this Article is to provide a mutually acceptable procedure for adjusting grievances arising from an alleged violation, misinterpretation or misapplication with respect to one or more unit employees, of any provision of this Agreement except those excluded expressly.\\nThe county argued, inter alia, that the SEA's step increase demand was not based on a provision of the CBA, and thus was beyond the scope of Article XVIII. The SEA admitted that its claim was not based on a provision within the CBA, but contended that it was based on a \\\"mistakenly excluded\\\" provision that had been negotiated and agreed to by the parties. The SEA argued that the dispute was based on a \\\"misinterpretation\\\" of the CBA and was thus arbitrable under Article XVIII.\\nOn May 19, 1995, the county filed a complaint with the PELRB claiming the SEA committed an unfair labor practice by demanding arbitration of a non-arbitrable matter. See RSA 273-A:5,11(f) (1987). The county relied upon the SEA's statement that its demand was not based on a provision within the CBA, but was instead based on a \\\"mistakenly excluded\\\" provision allegedly negotiated and agreed to by the county and the SEA. The PELRB found the wage term of the contract susceptible to an interpretation for the SEA and the dispute arbitrable and ordered the parties to arbitration. The PELRB apparently based its decision on language in the wage schedule, an appendix to the CBA, rather than on any text within the CBA itself. The county appeals.\\nOn appeal, the county assigns several points of error to the PELRB's decision. Because we hold that contract reformation for an omitted CBA provision is not subject to binding arbitration under the CBA, we need not address the county's remaining arguments.\\nWe will not overturn the PELRB's decision unless it is erroneous as a matter of law, unjust, or unreasonable. See RSA 541:13 (1997); Appeal of Londonderry School District, 142 N.H. 677, 680, 707 A.2d 137, 139 (1998). We presume that the PELRB's findings of fact are lawful and reasonable. Appeal of Westmoreland School Bd., 132 N.H. 103, 105, 564 A.2d 419, 420 (1989). We consider four principles in determining whether a dispute is arbitrable:\\n(1) arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit; (2) unless the parties clearly state otherwise, the question of whether the parties agreed to arbitrate is to be decided by the court, not the arbitrator; (3) a court should not rule on the merits of the parties['] underlying claims when deciding whether they agreed to arbitrate; and (4) under the \\\"positive assurance\\\" standard, when a CBA contains an arbitration clause, a presumption of arbitrability exists, and in the absence of any express provision excluding a particular grievance from arbitration, . . . only the most forceful evidence of a purpose to exclude the claim from arbitration can prevail.\\nId., 564 A.2d at 420-21 (quotations, citations, and brackets omitted).\\nArticle XVIII, section 18.1 of the 1994 CBA requires the parties to arbitrate any grievance \\\"arising from an alleged violation, misinterpretation or misapplication . of any provision of this Agreement except those excluded expressly.\\\" Thus, to be arbitrable, the parties' dispute must arise from the interpretation, application, or violation of an existing contract provision. Cf. Brampton Woolen Co. v. Local Union, 95 N.H. 255, 257, 61 A.2d 796, 797 (1948) (interpreting existing CBA provision regarding \\\"wages\\\" to include vacation pay). Arbitration cannot arise on the basis of an omitted term because an omitted term cannot be violated, misinterpreted, or misapplied.\\nAfter examining the CBA and the wage schedule, we find no language in the agreement that supports the PELRB's finding. As in previous CBAs, express language provides that each employee receives step increases on the employee's anniversary date. While the wage schedule indicates that it is \\\"effective 7/01/94,\\\" wage schedules in previous CBAs also had effective dates of July 1 of the respective year that the CBA became effective. The effective date of July 1, in the current and former CBAs, is consistent with the objective of providing raises to employees with July 1 anniversary dates.\\nIn addition, no language in the CBA indicates that employees obtain step increases at any time other than their anniversary dates, as defined in the CBA. The three new steps were intended to incorporate additional increases for employees who had reached the maximum wage step of existing labor grades. The one-time nature of a \\\"catch-up\\\" step increase would be a unique, substantial, and material change to any prior agreement between the parties, requiring specific contract language. In the absence of language in the CBA indicating otherwise, employees at the maximum step receive annual increases on their respective anniversary dates, just as other employees do.\\nTo achieve the SEA's desired result would require a new and explicit provision providing step increases at another date than is now specified in the CBA. While the SEA maintains that the parties negotiated and agreed to a \\\"catch up\\\" step increase on July 1, 1994, we can say with \\\"positive assurance\\\" that a dispute concerning the reformation of the CBA to include a term that was allegedly inadvertently omitted is not arbitrable under the arbitration clause. Cf. West Coast Tel. Co. v. Local U. No. 77, Int. Bro. of Elec. Wkrs., 431 F.2d 1219, 1221 (9th Cir. 1970).\\nReversed.\\nAll concurred.\"}" \ No newline at end of file diff --git a/nh/1801399.json b/nh/1801399.json new file mode 100644 index 0000000000000000000000000000000000000000..5df2f9d5adc66935676198b8f0ce2f67e9c46afd --- /dev/null +++ b/nh/1801399.json @@ -0,0 +1 @@ +"{\"id\": \"1801399\", \"name\": \"Gregg v. Northern Railroad\", \"name_abbreviation\": \"Gregg v. Northern Railroad\", \"decision_date\": \"1893-06\", \"docket_number\": \"\", \"first_page\": 452, \"last_page\": \"456\", \"citations\": \"67 N.H. 452\", \"volume\": \"67\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Supreme Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-10T19:42:31.639729+00:00\", \"provenance\": \"CAP\", \"judges\": \"Carpenter and Chase, JJ., did not sit: the others concurred.\", \"parties\": \"Gregg v. Northern Railroad.\", \"head_matter\": \"Gregg v. Northern Railroad.\\nThe price of corporate stock at public sales which are sufficiently numerous to attract the attention of investors competent to investigate the question of its value, is ordinarily the best evidence of its market value.\\nIn ascertaining the value of railroad stock, taken by eminent domain, it is error to admit evidence of corporate mismanagement to show that its market value ought to have been greater, or to allow other elements of value to be added to the market price.\\nEvidence that New Hampshire railroad stock, owned by residents of Massachusetts, is taxable there, is not admissible to show that it has a higher market value in this state.\\nThe notoriety of many facts is so great, that the administration of justice requires the exclusion of evidence based on an assumption of their nonexistence.\\nAppeal, by the plaintiff, who dissented from a lease of tbe defendants\\u2019 railroad to the Boston & Maine Railroad for ninety-nine years from January 1, 1890, from an award of $82,500 as the value of his stock in the defendant corporation. The jury found its value to be $90,225. The lease referred to was at an annual rental equivalent to 5 per cent, on the capital stock for the first seven years and a half, and 6 per cent, thereafter. Subject to exception, the plaintiff introduced evidence tending to show that in October, 1887, the Concord Railroad Corporation offered to take a lease of the road for the same term at an annual rental equivalent to 6 per cent, on the capital stock, and that the offer was rejected.\\nAfter the introduction of evidence by the defendants of sales of their stock at the brokers\\u2019 board in Boston, the plaintiff, subject to exception, put in evidence the statute law of Massachusetts, to show that the defendants\\u2019 stock is taxable to owners thereof resident in that state.\\nWilliam L. Foster and Fdward B. S. Sanborn, for the defendants.\\nGreorge B. French and Bingham Mitchell, for the plaintiff.\", \"word_count\": \"2158\", \"char_count\": \"12163\", \"text\": \"Per Curiam.\\nThe question of fact to be tried was the market value of Northern Railroad stock on the first day of January, 1890 (State v. James, 58 N. H. 67, Atlantic, etc., Railroad v. State, 60 N. H. 133, 140, Low v. Railroad, 63 N. H. 557, 562), the day when Gregg's stock was taken by an exercise of the right of eminent domain. This power of purchase was exercised for the purpose of obviating Gregg's objection to a lease of the road to the Boston & Maine Railroad for ninety-nine years from that date. P. S., c. 156, ss. 28-37. It is conceded that the market value of the shares on that day depended largely upon the previous management of the company's affairs, including the contract for the lease. But it is claimed that evidence tending merely to show that with better management the shares would have been worth more on that day than they were then worth was competent. The question, however, was, not what they would or might have been worth at that time if the management had been better or worse, but what they were worth in consequence of the manner in which the affairs of the corporation had been managed, whether good or bad. A very important part of that management was the execution of the lease to the Boston & Maine for ninety-nine years from January 1, 1890. If Gregg had continued to hold his stock without objecting to the lease, lie would have held it subject to the lease, and in his hands its value would have been affected by the lease, as it now is and will continue to be affected in other hands. January 1, 1890, the effect of the lease on its value was inevitable. In this state of things, evidence was received which tended to show that on that day the stock ought to have been worth more than it was worth, \\u2014 that by bad management the road had been leased at a lower rental than the Concord offered more than three years before. This was an alteration of the question to be tried. If property were taxed not at its market value (i. ., on . the 14th of April, paid a debt due from the firm to one Skinner, with costs of a suit that had been brought thereon :\\nThat he removed the stock of the firm to Concord, and completed the manufacture of it in the execution of the contract with Goodwin, to whom the articles were delivered :\\nThat upon the recovery of a judgment in one of the suits which were brought against the firm, an action was brought by the officer upon the receipt that had been given, and a.judgment rendered against the defendant, Lorenzo D., for $77.48, and costs, which he paid:\\nAdmits that the plaintiff has paid some small claims against the firm, but to what amount the party answering does not know.\\nThe answer of William Brown sets up, as a defence, his discharge and certificate under the United States .bankrupt law.\\nProof was taken, and it appeared that suits, as stated in the answers, had been commenced, and that the property of the firm and property of William Brown was attached and bailed by the officer to the defendant, Lorenzo D. Brown ; that the whole was removed by him to Concord ; that a part of the stock attached was manufactured and delivered to Goodwin upon the contract, who paid the value to Lorenzo D. Brown. It also appeared that he paid some of the debts, at the request of the plaintiff, as stated, and that the officer recovered a judgment against him upon one of the receipts, but whether upon a receipt given for the partnership property, or on one given for the private property of William B., did not distinctly appear.\\nLyford, for the plaintiff.\\nThe evidence shows that the property of the firm, to the value of $185, was received by Lorenzo D. Brown. lie is accountable for that property, as stated in the receipt that he gave Smith, the deputy sheriff, for it. He made some bargain to deliver the property to Goodwin, but it does not appear what the bargain was.\\nThe judgment which Smith recovered against Lorenzo D. Brown, and which the latter paid, was upon the receipt which he gave for the separate property of William Brown. The sheriff pursued this, and not the partnership property for the satisfaction of the judgment which was obtained against the firm. L. X). Brown has never accounted for the partnership property for which the bill is brought.\\nPerley, for the defendants.\\nThe bill states no ground for equity jurisdiction. It is not a bill to liquidate partnership affairs. There is no fraudulent combination between the defendants. There was no refusal of William Brown to join in a suit for the protection of the rights of the firm. No fraud is alleged. The bill simply alleges that one of the defendants withholds from one partner the property of the firm. What decree can he have ?\\nThere is no ground of an action at law, even. The valuation in the receipt is final, and the receipter has accounted for this to the officer. If he has not done so, he is liable to do it. Bissell v. Huntington, 2 N. H. Rep. 142.\", \"word_count\": \"1636\", \"char_count\": \"9394\", \"text\": \"Gilchrist, J.\\nThe case made by the. plaintiff is, that he himself and the defendant, William Brown, were prosecuting in copartnership the business of manufacturing doors, blinds, sashes, and other things, and had in their possession a quantity of stock, which was in the process of manufacture; that on the 18th of April, 1840,the defendant named abandoned the business, and that immediately afterward the other defendant, Lorenzo D. Brown, with the aid of William, without the plaintiff's consent, removed the stock from the shop to Concord; that he retained and refused to deliver it to the plaintiff, or to account for it. The bill further states that the plaintiff has paid some of the debts of the firm, and is entitled to the possession of the property for his remuneration and indemnity.\\nBut it 'appears in evidence that the possession which Lorenzo D. Brown took of the property was in consequence of a receipt for it, which he had given to an officer who had attached it to satisfy claims against the firm, and that this bailment was assumed by him, at the request of the plaintiff himself. The defendant had, therefore, a right to remove the goods, and to retain them for the purposes required by the receipt which had been given for them. The plaintiff's case is, therefore, disproved, and if there were no other impediment, he could not prevail, since he can do so only secundum allegata et probata. And if the case had been stated as it has been proved, an answer would have been, that the defendant, Lorenzo X)., having become accountable to the officer by a legal eon- tract assented to by the plaintiff', another party cannot call him to account, at least without first showing that the purposes for which the bailment was assumed have been fully satisfied, and that the party suing is the one entitled to the goods next in succession, cither as the general owner, or as having a right to the possession on other sufficient grounds.\\nIt does not appear that the officer has not a claim upon the goods receipted for, to satisfy the demands on which they were attached.\\nSupposing these demands to have been satisfied, and that the general owner of the goods would be entitled to demand them of the reeeipter directly, the plaintiff is not such general owner, nor does he state or prove any collusion between his partner and the other defendant, such as to justify the bringing of this suit upon the ground of fraud.\\nAside, therefore, from several questions which have been made upon the evidence and otherwise, it is apparent that the plaintiff makes no case by his bill, nor does the evidence furnish one.\\nBill dismissed.\"}" \ No newline at end of file diff --git a/nh/4421090.json b/nh/4421090.json new file mode 100644 index 0000000000000000000000000000000000000000..a53451ea4982adeee4030e0ead49336a9fe8aa41 --- /dev/null +++ b/nh/4421090.json @@ -0,0 +1 @@ +"{\"id\": \"4421090\", \"name\": \"John Scammon & a., Ex'rs, Ap'ts, v. Edward N. Pearson, Adm'r, & a.\", \"name_abbreviation\": \"Scammon v. Pearson\", \"decision_date\": \"1921-05-03\", \"docket_number\": \"\", \"first_page\": 122, \"last_page\": \"126\", \"citations\": \"80 N.H. 122\", \"volume\": \"80\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Supreme Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-11T00:00:24.907456+00:00\", \"provenance\": \"CAP\", \"judges\": \"Young, J., did not sit: the others concurred.\", \"parties\": \"John Scammon & a., Ex\\u2019rs, Ap\\u2019ts, v. Edward N. Pearson, Adm\\u2019r, & a.\", \"head_matter\": \"Rockingham,\\nMay 3, 1921.\\nJohn Scammon & a., Ex\\u2019rs, Ap\\u2019ts, v. Edward N. Pearson, Adm\\u2019r, & a.\\nUpon a probate appeal, the appellant is limited to the questions presented by his reasons for appeal, while all matters involved are open to the appellee. \\u25a0\\nThe findings of a probate court are not of any effect until their verity .has been established by a decree.\\nA probate court has power upon petition, proper cause being shown, to open and revise a decree previously made.\\nUpon appeal from a probate decree so revising a former decree, all questions of fact decided in the decree appealed from, and which are included in the reasons for appeal, are open to the appellant; and the whole case on the petition is before the supreme court of probate for a correct decree.\\nA petition to open a decree is decided upon equitable grounds, and in the correction of errors the court will not be confined to those of which the petitioner complains; errors in his favor will be equally open for adjustment.\\nProbate Appeal. The appellants\\u2019 testator, William H. Jaques, in 1916 filed in the probate court an account as executor of the will of Elizabeth H. Jaques. Upon hearing, the probate court, August 14, 1916, made certain findings, among others that $20,000 American \\u2022Express Company bonds received by the executor were not income but part of the principal of the estate; and August 26, 1916, entered a decree charging the accountant with a balance of cash and securities in his hands amounting to $78,756.39. November 24, 1916, William died and the appellants were appointed executors under his will. In 1917, Pearson was appointed administrator d. b: n., with will annexed, of Elizabeth Jaques\\u2019 estate and. the First National Bank of Concord was appointed trustee under her will. Neither party appealed from the decree of August 26, 1916. August 15, 1917, the bank as trustee filed a petition in the probate court asking that this decree be set aside and altered' in so far as necessary to correct such errors and defects in the account as were apparent from an examination of the account itself and specifying among other errors a failure to charge the executor in the final decree with the $20,000 American Express Company bonds which the court had found not to be income.\\nUpon hearing, the court opened the decree and October 5, 1917, made a new decree in which with other changes the executor was specifically charged with the American Express Company bonds. The final decree of this date charged the accountant with a.balance of cash and securities amounting to $116,598.50. From this decree and the allowance of the bank\\u2019s petition the executors of William took this appeal. The court, Allen, J., in advance of hearing transferred from the May term, 1920, of the superior court the following questions for consideration here:\\n1. Whether the findings of the probate court of August 14, 1916, constitute a decree and are to be treated as res adjudicata.\\n2. Whether the decree of August 26, 1916, was entirely set aside by the decree of October 5, 1917, or was modified only in so far as necessary to correct errors apparent from an examination of the account itself.\\n3. Whether the decree of August 26, 1916, was validly corrected as specified in the decree of October 5, 1917.\\n4. Whether the appellants by their appeal may raise the question of the distribution bonds of the Adams Express Company being principal or income.\\nScammon & Gardner and Elwin L. Page (Mr. Page orally), for the appellants.\\nWilliam W. Thayer and Harry J. Brown (Mr. Thayer orally), for the appellees.\", \"word_count\": \"1784\", \"char_count\": \"10280\", \"text\": \"Parsons, C. J.\\nThe substantial question between the parties is what questions are open upon the appellants' appeal from the decree of October 5, 1917, charging their testator as executor with a balance of $116,598.50. Upon a probate appeal the appellants are limited to the questions presented by their reasons of appeal while all matters involved are open to the appellees. This familiar and well understood proposition would not be transferred to this court as an important question of law except for the confusion which has arisen from the claim that certain findings made by the court preliminary to the decree of August 26, 1916, were to be treated as res judicata. But the findings of a trier of fact, whether a judge, jury, or referee, are not of any effect until their verity has been established by a judgment. Milford & Manchester R. R.'s Petition, 68 N. H. 570; Clough v. Moore, 63 N. H. 111, 113. \\\"There can be no estoppel from a verdict or finding until judgment has been ordered establishing the truth and verity of the same.\\\" Piper v. Railroad, 75 N. H. 435, 446; Smith v. Belknap County, 71 N. H. 203, 206. The judgment of the court was rendered August 26, 1916. The bank alleged in its petition that the American Express Company bonds were not included in the judgment then rendered. Upon hearing the petition the probate court found this allegation correct and entered a new judgment October 5, 1917, expressly charging the accountant with the bonds. By this procedure the verity of the finding of the court that the bonds were not income, assuming as appears to have been understood by the court and the parties that fact to be material, was not adjudicated until October 5, 1917. This judgment is opened by the appeal with all facts necessary to sustain it. The appellees cannot contend in their petition that the fact was not adjudicated in 1916, for the purpose of having the bonds charged against the accountant, and now contend it was embraced in the judgment of 1916 so as to preclude an investigation into the grounds of the decree. If the opening of the decree by the probate court is sustained, all questions of fact decided in the judgment then entered, included within the appellants' reasons of appeal, are open to them. The reasons of appeal put in issue the power of the probate court in law and as matter of fact to revise the decree of August 26, 1916. There is no doubt of the power of the probate court, proper cause being shown, to reopen and revise a decree previously made. Scammon v. Pearson, 79 N. H. 213; Reed v. Prescott, 70 N. H. 88. \\\"But the power is equitable in nature. It is not exercised upon the mere asking, nor for the sole purpose of overriding rules of law that stand in the way of maintaining proceedings at law. To entitle the plaintiffs to the relief they seek, there must be some substantial ground, such as fraud, accident, or mistake, which renders it against conscience to execute the decree they attack, and .of which they were prevented from availing themselves by fraud, accident, or mistake, unmixed with any fraud or negligence on their part.\\\" Knight v. Rollings, 73.N. H. 495, 502. The first question, therefore, for trial is whether the decree of August 26, 1916, should be set aside. If the facts found bring the case within the rules laid down by Judge Chase, the decree of August 26,1916, charging the accountant with $78,756.39 will be set aside to the extent authorized by the evidence and the question will arise what decree should be entered so far as the one made charging the accountant with $116,598.50 is challenged by the reasons of appeal, or is otherwise in issue. The appellees are not limited to the errors specified by the appellants. Patrick v. Cowles, 45 N. H. 553. As the petition to reopen the decree is decided upon equitable grounds, in the correction of errors the court will not be confined to those of which the petitioners com plain. Errors in their favor will be equally open for adjustment. It would be manifestly inequitable to correct one error and leave standing another which may have balanced it. The second question as to the scope of the action of the probate court is immaterial. The whole case on the petition is now before the supreme court of probate for a correct judgment. The third question, \\\"whether the decree of August 26, 1916, was validly corrected as specified in the decree of October 5, 1917,\\\" is the question in the case which the superior court will answer upon the facts found by application of the law hereinbefore stated. If the question intended is whether upon facts authorizing the action the probate court or the supreme court of probate has the power of correction attempted to be exercised, the question is answered in the affirmative. The answer to the fourth question, \\\"whether the appellants . . . may raise the question of the distribution bonds of the Adams Express Company being principal or income\\\" depends upon whether the disputed fact is material to the judgment to be rendered.\\nThe probate court appears to have understood the matter to be material, i. e. the executor is not to be charged if the bonds are income but is to be charged if they are not. If this be so, the fact is material and would be determined by the judgment. In such case, the question whether the bonds were income or principal would not only be a possible but a necessary issue to be determined in settling the account.\\nIf, on the other hand, the accountant is chargeable with the bonds whether income or principal, the question is an immaterial one, which would not be decided by the judgment even if submitted to and passed upon by the tribunal. Morgan v. Burr, 58 N. H. 470, 472. In that case, the question would not be determined by any judgment that has been or can be rendered in the accounting under review. No transfer has been made of any facts showing why the question is, or was thought to be, material. It may be the bonds, if income, belong to the accountant and are not properly chargeable to him as executor. If this be so, the issue is squarely raised and should be decided.'\\nIf technically not in issue, as the question seems to be the principal matter in dispute, the parties may be able to devise a method for its determination in this proceeding without delaying for a further accounting by the executors of Jaques, or the administrator of Mrs. Jaques with a petition for a decree of distribution, or a direct proceeding by Jaques' executors against Mrs. Jaques' administrator for a legacy belonging to Jaques or some other procedure which it is possible may be technically required to determine the controversy.\\nCase discharged.\\nYoung, J., did not sit: the others concurred.\"}" \ No newline at end of file diff --git a/nh/4424347.json b/nh/4424347.json new file mode 100644 index 0000000000000000000000000000000000000000..12a1aa3946e0872d922f32e0e5214aa9519928a8 --- /dev/null +++ b/nh/4424347.json @@ -0,0 +1 @@ +"{\"id\": \"4424347\", \"name\": \"Smith & Sargent v. American Car Sprinkler Company\", \"name_abbreviation\": \"Smith v. American Car Sprinkler Co.\", \"decision_date\": \"1916-04-04\", \"docket_number\": \"\", \"first_page\": 152, \"last_page\": \"160\", \"citations\": \"78 N.H. 152\", \"volume\": \"78\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Supreme Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-11T00:02:43.322070+00:00\", \"provenance\": \"CAP\", \"judges\": \"Young, J., dissented as to the interpretation of the statute: the others concurred.\", \"parties\": \"Smith & Sargent v. American Car Sprinkler Company.\", \"head_matter\": \"Sullivan,\\nApril 4, 1916.\\nSmith & Sargent v. American Car Sprinkler Company.\\nThe right to recover a forfeiture for the wilful cutting of trees, conferred by P. S., c. 244, s. 1, upon the person injured, was not abolished by Laws 1899, c. 31, s. 1.\\nWhere a lease contains a covenant by the lessors that upon payment of a certain sum the right of the lessors to enter into the premises should be utterly extinguished and in lieu thereof the lessee should hold the premises by paying a nominal rent, if demanded, upon performance of the condition the title becomes practically a freehold clogged with such rent charge.\\nA thing which is within the letter of a statute is not within the statute unless it be within the intention of the makers.\\nAn oral promise to transfer land, if the promisee \\u201cgo there and live and fix up the buildings,\\u201d is sufficient to establish an equitable title upon proof of performance in reliance upon the promise.\\nThe objection, that the statute on which an action is founded has been repealed, may be taken, though for the first time, in the supreme court.\\nAn objection to the insufficiency of evidence must be made before the case is submitted, unless the omitted necessary fact is impossible of proof.\\nDebt, upon c. 244, P. S., for a penalty for wilfully cutting trees. Plea, the general issue with a brief statement admitting the cutting but alleging the defendants\\u2019 belief in their ownership of the land, and that the plaintiffs had no interest in it. Trial by jury and verdict for the plaintiffs. Transferred from the May term, 1914, of the superior court by Branch, J.\\nThe land upon which the cutting was done was lot 31 in the third division in the town of Lempster, originally drawn to the right of the Glebe and known as \\u201cchurch land.\\u201d The plaintiffs claimed title under a warranty deed of said lot 31 from Orrin R. Howard, dated Aug. 7, 1912, and traced title through a warranty deed from Joe W. Bean to Howard, Jan. 19, 1911; a quitclaim deed to Bean from the Trustees of the Protestant Episcopal Church in New Hampshire, June 17, 1893; deed from the Trustees of Donations to the Protestant Episcopal Church, a Massachusetts corporation, to the grantor last above named, March 15, 1877, conveying to the.grantees the so-called church lands in New Hampshire; copy conveyance by Alexander B. Griswold and two others, a committee authorized by a diocesan convention of the Eastern Diocese of the Protestant Episcopal Church to execute the same to the Trustees of Donations to the Protestant Episcopal Church, Dec. 27, 1812, conveying all the so-called church land in New Hampshire.\\nThe plaintiffs also offered a lease from the Trustees of Donations to the Protestant Episcopal Church, dated March 30, 1826, to Laurin Beckwith of lot No. 31 in Lempster for the term of nine hundred and ninety-nine years; this lease was upon a yearly rent of three dollars. In it the trustees covenanted that the lessee, or his assigns, having paid to them all rent in arrears and having paid to them or their treasurer the sum of fifty dollars, the rent aforesaid and the right of said trustees to enter into said premises shall be utterly extinguished and in lieu thereof the said lessee or occupant or occupants of the premises shall hold and enjoy the demised premises by paying a mill a year only, if demanded. There was evidence that Phineas Richardson lived upon lots No. 32 and 31, which were known as the Phineas Richardson place, and that he owned the lease of lot 31, originally issued to Laurin Beckwith, and paid the rent on it for many years. Joe W. Bean, the grantor in the second deed of warranty introduced by the plaintiffs, was the son of Agnes Richardson Bean and the grandson of Phineas Richardson. He testified his grandfather and mother agreed to give him the place if he would go down there and live there and fix up the buildings, that he did so and the church lease was given him but there were no other writings. After receiving the lease, Bean went with it to George L. Farwcll, treasurer of the Trustees of the Protestant Episcopal Church in New Hampshire, paid the back rent due on the lease and the fifty dollars and received the quitclaim deed introduced in the case. The defendants excepted to the introduction of this deed because authority for its execution in the officer executing the same was not shown. The deed bore on its margin a memorandum of a vote of the trustees, Nov. 17, 1892, authorizing the treasurer to execute the same, signed, George L. Balcom, clerk. The corporation records of the trustees, Nov. 17, 1892, did not con tain a record of such vote. The present clerk was permitted to testify subject to exception that it was possible votes were taken which were not recorded and that from his knowledge of Mr. Balcom he would expect he would not sign such a certificate unless it were true. The defendants also excepted to the evidence of the agreement between Joe Bean, his mother and grandfather.\\nThe defendants offered in evidence a deed from Read Bros, dated Dec. 16, 1905, conveying \\u201calso that part of lot No. 31 in said third division of lots which is not known as church land;\\u201d deed Susie B. Hurd to Read Bros, with the same description, Dec. 1, 1905; quitclaim deed Geo. W. Hurd to Susie B. Hurd, July 13, 1904, containing the following: \\u201calso one other lot containing sixty-seven acres more or less of the said third division being lot No-. 31;\\u201d tax collector\\u2019s deed, Elbert E. Hurd to George W. Hurd, June 29, 1904, containing the same description. The record of the sale describes the property sold as \\u201cThe Phineas Richardson farm (except such' part of said farm as is owned separately from the other heirs by J. W. Bean).\\u201d The defendants also offered in evidence the following deeds: deed, Elisha A. Huntley to Agnes Bean, August 25, 1871, of \\u201ca certain tract or parcel of land situated in Lempster . . . known by the name of Timothy Green\\u2019s heirs, supposed to contain seventy-five acres more or less; also all of our interest in or claim unto one other lot or tract of land situate in said Lempster, being lot No. 31 in the said division containing sixty-seven acres, more or less, and drawn to the right of the Glebe\\u201d; deed from Phineas Richardson to Elisha A. Huntley, July 20, 1871, conveying \\u201ca certain tract or parcel of land situate in Lempster aforesaid, it being the farm upon which I now reside,\\u201d the remainder of the description being identical with the foregoing. Mrs. Hurd was a daughter of Agnes. Richardson Bean, there being four other children living at Mrs. Bean\\u2019s death besides Mrs. Hurd and Joe. Elbert E. Hurd, the husband of Susie B. Hurd, testified that he acted for his wife in making the trade, but subject to exception the court excluded the inquiry made of him by the defendants, whether the trade between him and Mr. Read called for the whole of Mrs. Hurd\\u2019s interest in lot 31. The court understood the inquiry to mean whether Mrs. Hurd intended to convey not only the interest acquired by the tax title but also any interest she might have in lot 31 as an heir of her mother. The defendants excepted to evidence as to the value of the timber, which was received by the court from certain witnesses.\\nThe defendants requested an instruction that in the absence of a writing Joe Bean did not acquire any interest in the land and that his only interest was as an heir of Agnes, which gave him one-sixth of her interest if she had any, and that if Susie B. Hurd had an undivided interest in the timber as heir of Agnes, which was conveyed to Read Bros, and by them to the defendants, they cannot be held in wilful trespass for cutting the same, and excepted to the refusal to give such instructions as were not given.\\nThe court instructed the jury that the defendants had no title and that if Joe Bean was promised the farm and church land as he testified and if in reliance upon that promise he took possession and repaired the buildings and the lease was turned over to him in fulfilment of the promise, Joe acquired a complete equitable title sufficient to authorize the plaintiffs to maintain this action. There were no exceptions to the charge.\\nJesse M. Barton (by brief and orally), for the plaintiffs.\\nJoseph S. Matthews and Frank 0. Chellis (Mr. Matthews orally), for the defendants.\", \"word_count\": \"3575\", \"char_count\": \"20286\", \"text\": \"Parsons, C. J.\\nThe defendants' contention that the statute upon which the action is founded has been repealed comes a little late but is clearly open to them. Glover v. Baker, 76 N. H. 261, 262; Petition of Moebus, 73 N. H. 350, 351; Hutchinson v. Railway, 73 N. H. 271, 272. It may b'e conceded that the action is not compensatory but punitory, that it is for a penalty, Morrison v. Bedell, 22 N. H. 234; Janvrin v. Scammon, 29 N. H. 280; Coulombe v. Eastman, 77 N. H. 368, and that the doing of an act to the performance of which a penalty is attached by statute is a violation of the statute. Williams v. Tappan, 23 N. H. 385, 391; Roby v. West, 4 N. H. 285, 287; Bartlett v. Vinor, Carth. 251; 1 Kent Com. *467.\\nIt must also be conceded that Moffie v. Slawsby, 77 N. H. 555, is an authority which supports the defendants' present contention. Moffie v. Slawsby was placed upon the ground announced in Bartlett v. Mansfield, 76 N. H. 582, that \\\"the private action for a penalty was abolished by chapter 31, Laws 1899.\\\" The statement was sound upon the facts in Bartlett v. Mansfield but in the use made of it in Moffie v. Slawsby there was no discussion of the question whether the application of the repealing statute was affected by the fact that the right of recovery was by the statute inflicting the penalty (P. S., c. 203, s. 2), limited \\\"to the person aggrieved who will sue therefor.\\\" The section inflicting the penalty is not recited in the opinion and the possible distinction apparently escaped notice. In all other cases where the statute has been construed to effect a repeal of private right to a penalty the right has been given to any prosecutor or complainant or person who should sue therefor. Hibbard v. Fertilizer Co., 70 N. H. 156; State v. McConnell, 70 N. H. 158, 159; Noyes v. Edgerly, 71 N. H. 500, 503.\\nThe statute now involved, P. S., c. 244, s. 1, confines the right to recover the penalty to \\\"the person injured.\\\" The distinction is the same as that presented but not discussed in Moffie v. Slawsby, and is therefore fairly open for consideration.\\nThe law of 1899 after providing that no complainant or prosecutor, with certain exceptions not now material, should 'be entitled to any part of a fine or forfeiture imposed or collected under the liquor statute (P. S., c. 112), continues: \\\" and all other statutory provisions whereby the complainant or prosecutor is entitled to the whole or any part of the penalty imposed for the violation of any other provisions of the Public Statutes, or amendments thereto, are hereby repealed.\\\" Laws 1899, c. 31, s. 1. The subject of the recovery sought in this case, and in Moffie v. Slawsby, is a penalty imposed for the violation of a provision of the statute which the statute by authorizing recovery gives to the prosecutor. But although the statutes are penal, the limitation of the right of recovery to the person \\\"injured\\\" or \\\"aggrieved\\\" indicates that the purpose was to some extent remedial. If the repealing statute had said \\\"any person prosecuting or complaining, \\\" it would be clear the purpose, was to confine the repeal to cases where persons in no way interested might engage in prosecutions for the profit thereby to be obtained. The present action is within the terms of the repealing statute and would be also within _a general purpose to repeal all authority for the private enforcement of provisions purely penal, but not within.a purpose to repeal only such provisions as in effect permitted any p\\u00e9rson to engage in the enforcement of the criminal law for profit. That the present statute may be within the letter of the repealing act is not sufficient, \\\"a thing which is within the letter of a statute is not within the statute unless it be within the intention of the makers.\\\" Stanyan v. Peterborough, 69 N. H. 372, 373; Opinion of the Justices, 66 N. H. 629, 647, 657. While the question is by no means free from doubt, upon careful considera tion the conclusion is that the repeal was intended to be limited to provisions which gave to any person without reference to any interest in the matter a share in any penalty or forfeiture and that it was not intended to extend the repeal to provisions which might be regarded as in some sense remedial because the prosecution was limited to persons injured or aggrieved. The moving cause of the legislation was undoubtedly practices that had grown up or were suspected to exist under the liquor law. Under this statute, as in the case of the guide-board statute,, there was at least a suspicion that prosecutions were moved for private profit purely. To cure -this evil was the probable purpose of the repeal and the repeal was -probably intended to extend only to statutes of exactly similar -import and effect. So construed, the statute does not repeal c. 244, P. S.\\nThe reason upon which Moffie v. Slawsby was placed is found to be untenable upon examination. Whether the result then reached as to the usury statute is sustainable upon any other ground is not material. The objection, that the statute upon which the action is founded has been repealed, is overruled.\\nThis result renders it necessary to consider the exceptions taken in the superior court.\\nThe statute in so far as material is, \\\" Whoever shall cut, . . . wilfully and unlawfully any tree, . . . standing or being on the land of another . . . shall forfeit to the person injured . . .\\\" P. S., c. 244, s. 1. The defendants admitted the cutting but ,set up in their brief statement a belief in their ownership of the land and that the plaintiffs had no interest.\\nThe issues set up, therefore, were whether the plaintiffs were persons injured within the meaning of the statute and did the defendants knowingly cut the trees believing they had no title to them? \\\"To recover a forfeiture under this statute, the plaintiff must prove a wilful and malicious trespass. The statute was not intended to give a new mode of trying disputed titles.\\\" Morrison v. Bedell, 22 N. H. 234, 237. The plaintiffs were bound to prove themselves persons injured. If the plaintiffs owned the trees they would be injured by their destruction. Whether their character as the persons injured would be affected by the character of their title the case presents no occasion to decide. See Davenport v. Newton, 71 Vt. 11. The defendants appear to have proceeded upon the theory that a technical defect in the plaintiffs' title would invalidate their claim of injury. To prove their ownership the plaintiffs intro duced a warranty deed to them of the wood and timber on lot '31 in Lempster and a similar deed from Joe W. Bean to Howard of said lot 31 and offered a copy of a quitclaim deed from the Trustees of the Protestant Episcopal Church in New Hampshire to Bean and subsequently introduced the original deed. The deed was signed, \\\"The Trustees of the Protestant Episcopal Church in New Hampshire by their Treasurer, George N. Far well.\\\" ' The defendants objected to the admission of this deed without proof of authority in the treasurer to execute the name. This was an objection to the proof of execution. But after proof of an original deed to himself a party may use an office copy of a deed in the chain of title to himself as prima facie evidence without proof of the existence and loss of the original. Harvey v. Mitchell, 31 N. H. 575, 582, and an original deed with the certificate of record may be used in the same way. Bellows v. Copp, 20 N. H. 492, 503. The course of the trial rendered this deed immaterial. There was evidence of a lease of lot 31 by the owner preceding the grantor in this deed for nine hundred and ninety-nine years at a rent of $3 per year. The lease contained a covenant by the lessors that upon payment of the back rent and $50 the right of the lessors to enter into the premises should be utterly extinguished and in lieu thereof the lessee or occupant or occupants of the premises should hold and enjoy the said demised premises, by paying a mill a year only, if demanded. Bean, holding this lease, paid up the back rent and the fifty dollars. His title under the lease became practically a freehold clogged with a rent charge of one mill per year, if demanded. Montague v. Smith, 13 Mass. 396, 403.\\nThat Phineas Richardson lived upon lots 32 and 31 which were known as the Richardson place and that he held lot 31 under a lease from the church was not controverted. Joe Bean was the grandson of Phineas and the son of Agnes Richardson Bean. Conveyance of lot 32 and of his interest in lot 31 to Agnes Richardson Bean from Phineas Richardson were in evidence. The defendants objected to evidence of an oral contract by which Joe's mother and grandfather-agreed to give him the place if he would go there and live and fix up the buildings, which was carried out by him. The evidence was sufficient to establish Bean's equitable title and the defendants' exceptions to the evidence and to the court's failure to instruct the jury that the evidence failed to establish ownership in Bean are overruled. White v. Poole, 74 N. H. 71, 73; S. C., 73 N. H. 403.\\nThe competency of the witnesses who gave their opinion as to value was for the trial court.\\nThe defendants excepted to inquiries as to statements made by a Mr. Dodge, superintendent of the defendants' lumbering operations in Lempster, as to the defendants' ownership. These exceptions have not been argued and are understood to have been waived. The testimony of Hurd as to what the trade was to be between his wife and Read may have been, if communicated to the defendants, competent in connection with other evidence as tending to show their good faith. It was incompetent upon the question of title; but while title would have been a good defence, that the defendants understood they owned the trees would have been equally as good a defence in this action. Whether there was evidence which was or could have been offered connecting the excluded evidence so as to make it material does not appear from the case. As the case stands, the excluded evidence tends to show, if anything, Read's understanding only, and so far as appears is immaterial upon the defendants' good faith.\\nExcept as to the effect of the oral contract already referred to, the substance of the instructions requested appears to have been given, for the jury were told it was essential for the plaintiffs to establish the oral contract between Bean and his mother to enable them to maintain this action.\\nThere was no motion for a nonsuit or directed verdict, the case being submitted without objection by the defendants.\\nAfter the verdict, the defendants moved to set the same aside ds against the law and the evidence. This motion raises merely a question of fact as to the weight of the evidence which is determined by the superior court. It raises no questions of law which have not previously been preserved by exception.\\nSubsequently, the defendants asked an exception to the verdict upon the ground that the evidence was insufficient to warrant a verdict for the plaintiffs and that the facts presented by the record disclose that the deficiency is incapable of being supplied. The court refused to allow this exception upon the ground that the question as to the sufficiency of the evidence cannot be raised in this way, and transferred the question of law raised by this ruling.\\nThe rule which requires a party to object to the sufficiency of the evidence before the case is submitted is based upon the reason that, if the objection is made known then, the deficiency may be supplied.\\nBut if it appears from the record that the necessary fact is impossible of proof, the rule fails with the reason. The record at present does not sustain the claim. Until it is made to appear that the record does not, and cannot, by supplying omitted evidence, be made to sustain the verdict, the verdict must stand. Farnham v. Anderson, 74 N. H. 405.\\nExceptions overruled.\\nYoung, J., dissented as to the interpretation of the statute: the others concurred.\"}" \ No newline at end of file diff --git a/nh/4426239.json b/nh/4426239.json new file mode 100644 index 0000000000000000000000000000000000000000..60cbe8e58e1eafd1c9ec5ede79464cc656175405 --- /dev/null +++ b/nh/4426239.json @@ -0,0 +1 @@ +"{\"id\": \"4426239\", \"name\": \"Olivier Girard, by her next friend Alph\\u00e9e Picard v. Boston & Maine Railroad. Corinne Lavigne v. Same\", \"name_abbreviation\": \"Girard v. Boston & Maine Railroad\", \"decision_date\": \"1917-05-01\", \"docket_number\": \"\", \"first_page\": 406, \"last_page\": \"408\", \"citations\": \"78 N.H. 406\", \"volume\": \"78\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Supreme Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-11T00:02:43.322070+00:00\", \"provenance\": \"CAP\", \"judges\": \"All concurred.\", \"parties\": \"Olivier Girard, by her next friend Alph\\u00e9e Picard v. Boston & Maine Railroad. Corinne Lavigne v. Same.\", \"head_matter\": \"Hillsborough,\\nMay 1, 1917.\\nOlivier Girard, by her next friend Alph\\u00e9e Picard v. Boston & Maine Railroad. Corinne Lavigne v. Same.\\nIf remarks of counsel, to which a general exception was taken, correctly state the law as to the abstract rights of the parties, it will not be inferred, in the absence of further exception, that the court failed to instruct the jury how to apply the principles stated or that erroneous use was made of them.\\nCase, to recover for injuries from a collision upon a highway grade crossing of the defendant road. Trial by jury and verdicts for the plaintiffs.\\nException was taken to the following portion of the argument of counsel for the plaintiffs: \\u201cLet me call your attention in the first place to the fact that this was a public highway, and that these girls and this man, Barth, that they refer to, had just as good a right to be there that day as the Boston & Maine Railroad had, just exactly. They were exercising their rights as American citizens, gentlemen. They were on the public highway of Manchester, and although the Boston & Maine Railroad had a right to run its tracks over that crossing, that was not an exclusive right, and that did not mean that you and I and others might not go there, too, and travel up and down that street. We have not yet reached the point, \\u2014 we may sometime, \\u2014 but we have not yet reached the point where everybody has got to stand back when the Boston & Maine Railroad runs its trains. Not yet, I say, gentlemen. I say this: That Joseph Barth and Corinne Lavigne and Olivier Girard, each one of them, had just as good a right there. They were within their rights, everyone of them, and they had just as good a right to travel up and down that street, Silver street, that day, as the Boston & Maine Railroad had to run its trains over the crossing. It was a public highway, where the public, the traveling public, had a right to be. That is one circumstance.\\u201d Transferred by Pike, C. J., from the September term, 1916, of the superior court.\\nTaggart, Burroughs, Wyman & McLane (Mr. Wyman orally), for the plaintiffs.\\nBranch & Branch (Mr. Randolph W. Branch orally), for the defendants.\", \"word_count\": \"674\", \"char_count\": \"3803\", \"text\": \"Parsons, C. J.\\nThe statement of counsel to which objection was taken was a correct statement of the law as to the abstract right of the parties. Gahagan v. Railroad, 70 N. H. 441, 443. Whether the law as to the care required to be exercised by the parties in the exercise of their common and equal right was correctly stated by counsel in argument does not appear. In the absence' of further exception it cannot be inferred erroneous use was made of the abstract principle stated, or that the court failed to give such instructions as would enable the jury to apply the law. Counsel made no statement of fact and did not mis-state the law. The sentence to which special exception is taken, \\\"We have not yet reached the point, \\u2014 we may sometime, \\u2014 but we have not yet reached the point where everybody has got to stand back when the Boston & Maine railroad runs its trains,\\\" was a forceful statement of the legal proposition that a highway traveler is not necessarily in fault who is on a grade crossing, when the railroad attempts to occupy it.\\nIf for any reason developed in the course of the trial the form of expression used appeared likely unfairly to influence the jury, the presiding justice could have corrected such tendency. Sanders v. Railroad, 77 N. H. 381, 383; Hoxie v. Walker, 75 N. H. 308, 310. It cannot be held as matter of law that the expression created such a prejudice or so called attention to existing prejudices as necessarily to render the trial unfair. If in fact the verdict is the result of prejudice and not sustainable upon the evidence, relief must be sought in the superior court.\\nException overruled.\\nAll concurred.\"}" \ No newline at end of file diff --git a/nh/4429346.json b/nh/4429346.json new file mode 100644 index 0000000000000000000000000000000000000000..f9bb9ab19873224adeb2869945cbd33e738e04e3 --- /dev/null +++ b/nh/4429346.json @@ -0,0 +1 @@ +"{\"id\": \"4429346\", \"name\": \"State v. Robert Cornwell; State v. Kenneth D. Cornwell\", \"name_abbreviation\": \"State v. Cornwell\", \"decision_date\": \"1952-10-07\", \"docket_number\": \"No. 4138\", \"first_page\": 446, \"last_page\": \"448\", \"citations\": \"97 N.H. 446\", \"volume\": \"97\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Supreme Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-10T22:45:40.159651+00:00\", \"provenance\": \"CAP\", \"judges\": \"All concurred.\", \"parties\": \"State v. Robert Cornwell. State v. Kenneth D. Cornwell.\", \"head_matter\": \"Cheshire,\\nOct. 7, 1952.\\nNo. 4138.\\nState v. Robert Cornwell. State v. Kenneth D. Cornwell.\\nGordon M. Tiffany, Attorney General, and Harry C. Lichman, County Solicitor (Mr. Lichman orally), for the State.\\nErnest L. Bell, Jr., James S. Davis and Earl Brennan for the respondents, filed no brief.\", \"word_count\": \"846\", \"char_count\": \"4848\", \"text\": \"Kenison, C. J.\\nDuring the trial the respondents objected to the allowance of the sheriff's testimony to the effect that it was customary procedure to have a deputy assist him in attaching a motor vehicle and taking possession of it in order that it could be driven away and that the procedure was followed in this case. Evidence of a custom, usage, or standard practice is generally admissible in this state for the purpose of showing conduct on a particular occasion. State v. Hause, 82 N. H. 133. The standard practice in serving process is relevant evidence on the question of whether or not it was followed in a particular case. Hine v. Pomeroy, 39 Vt. 211, 219. It does not appear that the custom in this case was contrary to law and the competency of evidence of custom is well established in this jurisdiction and elsewhere. Buxton v. Langan, 90 N. H. 13, 15; I Wig. Ev. (3rd ed.) ss. 92, 93.\\nUpon direct examination the sheriff was asked the following question: \\\"Did you do anything on that day in any way to provoke this assault which is complained about?\\\" The question was objected to on the grounds that it was a self-serving declaration. The record does not indicate that the question was answered but it has been argued by the State as though the witness had made a negative answer to the question and will be so considered. \\\"In all trials evidence of conduct of a party which is in his favor on the issues is admitted without question and the fact that it 'self serves' him is no reason for its exclusion. Otherwise trials would obviously be greatly limited and evidence of rightful conduct to meet the charge of conduct that was wrongful would be excluded. While evidence of one's conduct and statements is to be excluded in many situations, it is by reason of some other rule than one which bars evidence because it is of a self-serving character.\\\" Caplan v. Caplan, 83 N. H. 318, 326. The sheriff's explanation of his conduct was therefore proper. Furthermore, it is consistent with the rule frequently followed here: \\\"There is no principle of Evidence especially excluding 'self-serving' statements by an accused or by anyone else.\\\" Clapp Co. v. McCleary, 89 N. H. 65, 66; Semprini v. Railroad, 87 N. H. 279, 280; Merchants Nat. Bank v. Sullivan, 96 N. H. 430, 435.\\nError is claimed in the exclusion from evidence of writs brought by the sheriff after October 6, 1950, in a civil suit against the respondents. The exclusion of this evidence is governed by State v. Proctor, 91 N. H. 347, 348: \\\"The evidence that a civil suit had been brought . . . had no bearing to indicate the defendant's innocence or weakness in proof of his guilt.\\\"\\nIn the direct examination of respondent Kenneth Cornwell by his counsel, he was asked if he ever had any trouble with the authorities. Upon cross-examination he was asked if he had been arrested on October 10 of the previous year for failure to contribute to unemployment compensation. The Court allowed the question \\\"as long as it was brought out on direct examination.\\\" This cross-examination of the respondent was proper as a relevant inquiry into his credibility thereby tending to discredit him as a witness. State v. Travis, 82 N. H. 220; State v. Grierson, 96 N. H. 36, 39.\\nIt is argued that the case should be dismissed because the evidence does not show that the officers were put in fear by the assault of the respondents. When the assault is accompanied by the infliction of actual injury, the crime is proven although no fear is occasioned thereby. See State v. Gorham, 65 N. H. 152.\\nIn the closing argument counsel for the State urged the jury not to give too much weight to character witnesses and argued that an acquittal in this case would be a victory for lawlessness and a victory for disrespect of a court order in the county. Objection was made that the argument was prejudicial, unfair and illogical. Arguments to the jury on behalf of the State or the respondent may be rhetorical, expansive and contain some defects in logic without necessarily being prejudicial. A jury may be urged to do its duty upon the evidence presented and it was proper to point out that character witnesses were not eye-witnesses to the assault. The argument was within the limits of legitimate advocacy and similar arguments have been upheld in other criminal cases. State v. Dinagan, 79 N. H. 7, 10; State v. Small, 78 N. H. 525.\\nOther exceptions taken during the trial relate to discretionary rulings of the Trial Court and no error is apparent in any of them.\\nExceptions overruled.\\nAll concurred.\"}" \ No newline at end of file diff --git a/nh/4431501.json b/nh/4431501.json new file mode 100644 index 0000000000000000000000000000000000000000..88991e9e53c9d81f14e56e3802fe56ff23726645 --- /dev/null +++ b/nh/4431501.json @@ -0,0 +1 @@ +"{\"id\": \"4431501\", \"name\": \"Merchants Mutual Casualty Company v. Annie Smith, Adm'x of Francis Smith, Harry Winebaum, Fred Wiggin and American Employers' Insurance Company\", \"name_abbreviation\": \"Merchants Mutual Casualty Co. v. Smith\", \"decision_date\": \"1940-12-03\", \"docket_number\": \"No. 3208\", \"first_page\": 204, \"last_page\": \"209\", \"citations\": \"91 N.H. 204\", \"volume\": \"91\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Supreme Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-10T19:58:16.912870+00:00\", \"provenance\": \"CAP\", \"judges\": \"All concurred.\", \"parties\": \"Merchants Mutual Casualty Company v. Annie Smith, Adm\\u2019x of Francis Smith, Harry Winebaum, Fred Wiggin and American Employers\\u2019 Insurance Company.\", \"head_matter\": \"Strafford,\\nDec. 3, 1940.\\nNo. 3208.\\nMerchants Mutual Casualty Company v. Annie Smith, Adm\\u2019x of Francis Smith, Harry Winebaum, Fred Wiggin and American Employers\\u2019 Insurance Company.\\nDevine & Tobin, for the plaintiff.\\nWilliam, H. Sleeper (by brief and orally), for the defendant Annie Smith, administratrix.\\nArthur E. Sewall and Samuel Levy, for the defendants Winebaum and Wiggin.\\nSheehan & Phinney (Mr. Sheehan orally), for the defendant American Employers\\u2019 Insurance Company.\", \"word_count\": \"1712\", \"char_count\": \"10319\", \"text\": \"Branch, J.\\nThe motion of the defendant, American Employers' Insurance Company, hereinafter called the defendant, for rulings of law upon the issues presented at the trial, was properly denied. The evidence clearly established the fact that there were two persons in the truck at the time of the accident, namely, the deceased and the defendant Fred Wiggin. The Presiding Justice reports that \\\"the evidence as to which of the parties was operating the truck was in conflict.\\\" An examination of the record indicates that this is not an overstatement of the fact, and it follows that this issue was properly submitted to the jury for decision.\\nIn regard to the second issue, the defendant, Harry Winebaum, testified upon cross-examination as follows: \\\"Q. Did you own the truck that was involved in this accident? A. Yes sir, that's my truck. . . . Q. And the men that were riding on that truck were working for you? A. That's right.\\\" This testimony alone would have necessitated the denial of the defendant's motion with reference to the second issue and fully sustained the finding of the court thereon.\\nDuring the course of the trial, the defendant moved that the testimony of two witnesses, introduced for the purpose of establishing the fact that the defendant Wiggin was operating the truck when the accident occurred, be stricken from the record. It is now insisted that part of this testimony should have been withdrawn from the attention of the jury because it \\\"was not sufficient testimony to establish\\\" the fact, and that the rest of the testimony in question \\\"being remote and irrelevant, was of no assistance to the jury.\\\" Obviously the first reason for exclusion above suggested is without merit. The law of evidence does not require that each piece of evidence upon a given issue be \\\"sufficient\\\" to establish the fact. The other grounds for exclusion upon which the defendant relies are equally without merit. The testimony in question was not irrelevant, and the question of remoteness was one upon which the decision of the Presiding Justice must be regarded as final.\\nDefendant's other exceptions to evidence are of slight importance. The testimony of the witness Lavertue, in which he repeated a remark made by the defendant Wiggin at the scene of the accident immediately after it occurred, was properly admitted as part of the res gestae.\\nMolly Boyle, an aunt of the deceased Francis Smith, testified that she was at the Smith home about two weeks after the accident when Smith's brother returned the clothes worn by the deceased at the time of the accident and that no hat was returned with them. This testimony had reference to the contention of Annie Smith, administratrix, that the driver of the truck at the time of the accident wore a hat but that the deceased never wore a hat and did not own one. Although the testimony in question was not entitled to much weight, it was nevertheless consistent with and confirmatory of the other testimony in the case relating to the habit of the deceased to go bareheaded, and the exercise of discretion involved in its admission will not be revised by this court.\\nThomas Winebaum, a brother and business associate of the defendant Harry Winebaum, testified, subject to the defendant's exception, that he hired Francis Smith to work upon the truck in question for his brother. The contention of the defendant that the witness was thus \\\"permitted to testify as a conclusion of law,\\\" is frivolous and the exception to the admission of this testimony is overruled.\\nThe most serious question in the case is presented by the defendant's exception to the allowance of a portion of the argument for Annie Smith, administratrix, which in turn involves an antecedent ruling of the court upon certain testimony. Ethel Baker, a witness called by the defendant Annie Smith, administratrix, testified as follows: \\\"Q. Did you hear Mr. Wiggin make any statement that day as to the condition of the truck? . A. Well I heard him say, 'You don't suppose it was the damn, the damn brakes again'.\\\" This testimony was first \\\"admitted only as bearing on Wiggin's credibility\\\" but after considerable subsequent discussion, the court ruled that it should be stricken out upon the ground that it was not effective as a contradiction of Wiggin's testimony on the stand. The consideration and final disposition of this testimony appears to have proceeded upon the erroneous assumption that the only legitimate purpose for which it could be admitted was to contradict Wiggin's testimony. If, as the record seems to indicate, Wiggin's remark as reported by Mrs. Baker, was made at the scene of the accident immediately after Wiggin had been pulled out from under the wreckage of the truck, it was clearly admissible as part of the res gestae without limitation as to the purpose for which it could be used. To such a situation the rule laid down in Morin v. Insurance Company, 85 N. H. 471, upon which the defendant relies, would be wholly inapplicable. Nevertheless the ruling of the court that this portion of Mrs. Baker's testimony be stricken out became the law of the trial which counsel were not at liberty to ignore.\\nIn the course of his argument to the jury, counsel for the defendant Annie Smith, administratrix, referred to Mrs. Baker's testimony as follows: \\\"Mr. Sleeper: I think it was Mrs. Baker, you will remember her face, that honest woman that got on the witness stand, said that she heard him with her own ears after this accident on the same day make a remark about having trouble with that truck, 'I wonder if it is those wheels or brakes' or something, you will remember I know. . . . Mr. Sheehan: My objection, misquotation of the evidence, and exception. . . . Court: Misquotation. Mr. Sleeper: Yes, he claims improper inference, . . . Court: He is referring to the written statement having contained some reference to that. It may stand. Mr. Sheehan: Subject to my exception.\\\"\\nIt is plain from the foregoing excerpt from the record that the only ground of objection urged against the argument was that it constituted a misquotation of the evidence. The objection on this ground was properly overruled, since Mrs. Baker's testimony was quoted with substantial accuracy. Apparently both court and counsel for all parties had, at this time, forgotten the previous ruling that the testimony in question be stricken out, since no reference to it was made in the colloquy above set forth. The defendant, however, now argues as follows: \\\"In spite of the court's exclusion of this evidence, counsel for Smith, Administratrix, nevertheless wilfully argued it. Thus it amounted to argument not based upon evidence. The court expressly sanctioned it and under the circumstances the verdict must be set aside.\\\"\\nIn making this argument counsel for the defendant misconceive the scope and effect of an exception to the allowance of argument. The theory which underlies the treatment of such matters in this jurisdiction is that errors committed by counsel in the course of argument should be corrected and finally disposed of by the Presiding Justice at the trial. Tuttle v. Dodge, 80 N. H. 304. \\\"Counsel should present his objection in a form calling for a ruling by the court, the presiding justice should allow exceptions only when they relate to a 'ruling, direction or judgment' of the court. . . and this court should consider such exceptions only as have been regularly taken.\\\" Ib. 312. Viewed in the light of these principles, it is plain that the error of which the defendant now complains was not brought to the attention of the Presiding Justice and he was given no chance to correct it at the trial. Since the question was not presented to the Presiding Justice for decision, no \\\"ruling, direction or judgment\\\" thereon was made by him or transferred to this court. The rule that \\\"this court should consider such exceptions only as have been regularly taken\\\" precludes the acceptance of the argument now advanced and requires that the present exception be overruled.\\nDefendant's other exceptions to the allowance of argument appear to be without merit. There was sufficient basis in the evidence for the argument that, the Smith boy was asleep in the back of the truck when the accident happened, and the exception to the allowance of this argument must be overruled.\\nThe argument that the man in charge of the truck (Wiggin) would not have gone to sleep in the back part of it and allowed an \\\"unauthorized boy\\\" to do the driving, had reference only to the fact that Smith did not hold a chauffeur's license. This was immediately explained to the jury by the following words: \\\"Unauthorized, I mean not holding a license, not holding a chauffeur's license.\\\" Under these circumstances there is no reason to believe that the jury was in any way misled by the use of the word \\\"unauthorized.\\\"\\nThe contention that \\\"counsel for Smith, Administratrix, repeatedly argued affirmatively and substantially from the contents of the typer written transcript of Wiggin's statement . . . and from other evidence limited to the credibility of Wiggin\\\" receives only slight support from the record. It clearly appeared that the defendant Wiggin had, before the trial, signed and made oath to a typewritten statement in which he stated that he was driving the truck at the time of the accident. Upon the witness stand he testified that he was asleep in the back of the truck and that Smith was driving when the accident occurred. In this situation counsel for Mrs. Smith was obviously justified in commenting vigorously upon the fact that Wiggin had made, under oath, two utterly contradictory statements with reference to one of the main points at issue. Counsel for Mrs. Smith availed himself fully of this opportunity but we find no substantial error in his argument.\\nExceptions overruled.\\nAll concurred.\"}" \ No newline at end of file diff --git a/nh/4431819.json b/nh/4431819.json new file mode 100644 index 0000000000000000000000000000000000000000..2e27ba523db67a66199f6d31587d4cab8a176eef --- /dev/null +++ b/nh/4431819.json @@ -0,0 +1 @@ +"{\"id\": \"4431819\", \"name\": \"Josephine Freeman v. Nora C. Scahill; Louie R. H. Freeman v. Same\", \"name_abbreviation\": \"Freeman v. Scahill\", \"decision_date\": \"1943-06-25\", \"docket_number\": \"No. 3418\", \"first_page\": 471, \"last_page\": \"473\", \"citations\": \"92 N.H. 471\", \"volume\": \"92\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Supreme Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-10T19:47:57.891082+00:00\", \"provenance\": \"CAP\", \"judges\": \"Burque, J., did not sit.\", \"parties\": \"Josephine Freeman v. Nora C. Scahill. Louie R. H. Freeman v. Same.\", \"head_matter\": \"Rockingham,\\nJune 25, 1943.\\nNo. 3418.\\nJosephine Freeman v. Nora C. Scahill. Louie R. H. Freeman v. Same.\\nWilliam H. Sleeper, by brief, for the plaintiffs.\\nHughes & Burns (Mr. Walter A. Calderwood orally), for the defendant.\", \"word_count\": \"676\", \"char_count\": \"3787\", \"text\": \"Per Curiam.\\nThe plaintiff's car was proceeding westerly and the defendant's easterly, when the plaintiff's left rear fender came in contact with the defendant's left front fender. The plaintiff's car then deflected to the right and after going a distance of seventy feet, hit a snowbank two or three feet high and not too hard packed, where it had been plowed back from the pavement. Straddling this bank, the plaintiff's car proceeded sixty feet through the snowbank and brought up against a pole with such force as to do considerable damage to the front of the car and to throw the driver forward onto the steering-wheel and bend it.\\nAt no point did the plaintiff Louie apply his brakes. The pavement was clear of snow and dry, his brakes and tire-treads were in excellent condition, and he was driving up-grade. If he had applied his brakes while going twenty to twenty-five miles an hour, which he said was his speed, he would have come to a stop before he reached the snowbank, as all the witnesses agree.\\nAlbert Bureau, a witness for the plaintiffs, had examined the car and testified as to the damages. He had had eighteen years experience in appraising cars. On cross-examination he testified that \\\"the front end [of the plaintiff's car] got a real good blow.\\\" He was asked how fast the car was going, in his opinion, when it hit the pole. The plaintiffs' counsel stated he had no objection to the witness' answering this question \\\"if he has the science.\\\" Upon further questioning for qualification, it appeared that the witness had had a \\\"lot of experience\\\" in examining cars that had been in accidents, and had seen \\\"a good many of them.\\\" In this experience, he had learned more or less of the history and circumstances under which the accidents happened. The witness was then asked to give an opinion, based on his experience in other cases, as to the speed of the plaintiff's car when it hit the pole. Upon objection that he was not qualified to answer, the Presiding Justice found that he was. Subject to exception, the witness was permitted to say that the speed, in his opinion, was thirty-five to forty miles an hour.\\nWe cannot say that it was an abuse of discretion to find the witness, with a long and wide experience, could be of aid to the jury, even if he had no scientific knowledge as to the resisting powers of metal, and even though he did not see the accident and did not examine the car directly afterwards. Watkins Co. v. Company, 88 N. H. 476; Weiss v. Wasserman, 91 N. H. 164, 166; Dowling v. Company, 91 N. H. 234, 236. If the witness was limited by having no engineering knowledge, but only practical experience, that went merely to the weight of his opinion. Cedergren v. Hadaway, 91 N. H. 270, 271.\\nThe plaintiffs excepted to the refusal to charge, \\\"It would be proper for you to bring in a verdict for Josephine Freeman in this case although you might not return a verdict in favor of her husband, that is, if you should find that each of the drivers were partly at fault for the collision and Mrs. Freeman was a passenger.\\\" There was no evidence at all that Mrs. Freeman was a bailor of her car and her husband the bailee, while she was a mere gratuitous -invitee of her husband. She was traveling in her own car. Since she had no driver's license, her husband was operating it. As owner, she had full power to control her husband's conduct while she was present. Consequently his negligence was chargeable to her. Niemi v. Railroad, 87 N. H. 1, 3; Tufts v. White, ante, 158.\\nJudgment on the verdicts.\\nBurque, J., did not sit.\"}" \ No newline at end of file diff --git a/nh/4432625.json b/nh/4432625.json new file mode 100644 index 0000000000000000000000000000000000000000..6e7284c690599b1f7190fcceb2ccb3e9fae8bafa --- /dev/null +++ b/nh/4432625.json @@ -0,0 +1 @@ +"{\"id\": \"4432625\", \"name\": \"Daniel B. Leary v. Manchester\", \"name_abbreviation\": \"Leary v. Manchester\", \"decision_date\": \"1941-06-25\", \"docket_number\": \"No. 3230\", \"first_page\": 442, \"last_page\": \"447\", \"citations\": \"91 N.H. 442\", \"volume\": \"91\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Supreme Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-10T19:58:16.912870+00:00\", \"provenance\": \"CAP\", \"judges\": \"Branch, J., did not sit: the others concurred.\", \"parties\": \"Daniel B. Leary v. Manchester.\", \"head_matter\": \"Hillsborough,\\nJune 25, 1941.\\nNo. 3230.\\nDaniel B. Leary v. Manchester.\\nThorp & Branch (Mr. Branch orally), for the plaintiff.\\nWilliam H. Craig, City Solicitor, and J. Francis Roche (Mr. Roche orally), for the defendant.\", \"word_count\": \"1815\", \"char_count\": \"10415\", \"text\": \"Allen, C. J.\\nAs an outcome of the prior litigation the city seeks to obtain by eminent domain full title to the premises in which it now has an easement, on the ground that the expense of maintenance which the terms of the easement impose upon it as a continuing obligation will be substantially greater than the value of the plaintiff's ownership. The novel situation is presented in which full title to property results in real economy in comparison with only an easement therein. The easement is of a right to build a ditch across the plaintiff's land, and in part consideration for it the city agreed to maintain the ditch in a manner causing no unnecessary damage to the premises over which it was to run. The alleged necessity for the city to become the owner in full title of the premises injuriously affected by an improper maintenance of the ditch is not to protect the city's water supply but to do away with the expense of avoiding a private nuisance.\\nThe right of eminent domain conferred upon the city's board of water commissioners by special act (Laws 1891, c. 26, s. 2) is a limited one. It is granted only \\\"for the preservation of the purity of the water\\\" of Lake Massabesic. The claim of right now asserted is not to protect the city's water supply. Ownership of the easement fully accomplishes the protection, so far as the plaintiff's land is needed therefor. The fact that protection can be less expensively secured by full ownership of the land does not constitute a threat against the purity of the water. Since the grant of power to condemn in- eludes only its express terms and necessary implications (Thompson v. Company, 78 N. H. 433, 434; Maine-New Hampshire &c. Authority v. Ham, ante 179), the plaintiff's title cannot be acquired under the act above cited.\\nA general statute (P. L., c. 42, s. 71) authorizes towns to condemn \\\"any land required for public use,\\\" if, as is here assumed, it cannot be obtained by contract. In cities the city councils are vested with the authority (P. L., c. 54, s. 1).\\nThe statute widens the scope of the predecessor law (Laws 1872, c. 38; Gen. Laws, c. 37, s. 7) authorizing the taking of land by municipalities for a purpose of fire protection. The change was made in 1891 (P. S., c. 40, s. 6), and by it land which the municipality might acquire by purchase \\\"for the public uses of the inhabitants\\\" (P. S., c. 40, s. 3; P. L., c. 42, s. 3) could be acquired by condemnation if no agreement to purchase could be made. The test of public use under either method is the same. Any authorized public undertaking is one for public use, and no purpose in the legislation is found that only in the case of strictly governmental functions may the authority either to purchase or to condemn be exercised or exerted. Maintenance of a public library by a municipality is an obligation voluntarily assumed, and land for it may be acquired by condemnation as well as by purchase. Attorney-General v. Nashua, 67 N. H. 478. It would be thought anomalous if title to land for a public park or common might be gained only by purchase.\\nThe special grant of the power in connection with municipal water works (P. L., c. 43, s. 2) and lighting systems (P. L., c. 44, ss. 8, 15) or in taking land for public playgrounds (P. L., c. 42, s. 32) manifests no limitation of the public use for which the general power may be employed. Without the special grant the power would exist under the general grant. Authority to conduct the business of waterworks and lighting systems implies authority to acquire property needed therefor, and the general right to condemn is as applicable as the general right to purchase. These subjects are dealt with comprehensively by the legislation providing for them, and the inclusion in the legislation of special power to acquire real estate does not cut down the scope of the general power. The legislation was enacted subsequently to the Public Statutes of 1891 and to the case of Attorney-General v. Nashua, supra, and it does not serve to show the legislative thought and intent of that year, or that the reenactment of the general and special powers in 1926 by Public Laws calls for a change of construction.\\nThe city councils may not exercise authority specially granted to special administrative boards, but authority withheld from such boards remains in the councils. They may not interfere with the authority and functions of the boards, but subject thereto they may act for the city's general welfare within legislative permission. Any economy which may be effected in any city department is more than of departmental interest. It benefits the city as a whole, and if it may be brought about by action of the city councils when the administrative board is powerless to accomplish it and when the action does not intrude upon the board's authority and functions, the special authority assigned to the board does not take away the general authority of the councils except to the extent of the special authority. The grant of special authority was not intended to revoke authority not included in the grant. While the plaintiff's title may not be taken to protect the city's water supply by its board of water commissioners, may it be taken by the city councils for some other public use?\\nThe issue is not what particular use is to be made of the property sought to be taken, but whether some public advantage duly authorized to be accomplished is furthered. The plaintiff does not complain on the ground that the use proposed to be made of the property is unauthorized, but alleges that a taking for the purpose of public economy is not for an authorized public purpose. An unauthorized use of the property may be enjoined in behalf of an interested party, and the taking here sought, if it were for the purpose of making such a use, would be invalid. Whether the city may take in order to obtain relief from a public burden, is the only question now presented.\\nIn general definition, a public use \\\"only can be considered such where the government is supplying its own needs, or is furnishing facilities for its citizens in regard to those matters of public necessity, convenience, or welfare, which, on account of their peculiar character, and the difficulty \\u2014 perhaps impossibility \\u2014 of making provision for them otherwise, it is alike proper, useful, and needful for the government to provide.\\\" Cooley, Const. Lim., (7th ed.), 768, 769. \\\"The fundamental purpose of government is to protect the health, safety and general welfare of the public. . Its power plant for the purpose consists of the power of taxation, the police power and the power of eminent domain. Whenever there arises, in the State, a condition of affairs holding a substantial menace to the public health, safety or general welfare, it becomes the duty of the government to apply whatever power is necessary and appropriate to check it. There are differences in the nature and characteristics of the powers, though distinction between them is often fine. . . . But if the menace is serious enough to the public to warrant public action and the power applied is reasonably and fairly calculated to check it, and bears a reasonable relation to the evil, it seems to be constitutionally immaterial whether one or another of the sovereign powers is employed.\\\" New York &c. Authority v. Muller, 270 N. Y. 333.\\nThe public use is a purpose \\\"of a public or governmental nature.\\\" Eyers Woolen Co. v. Gilsum, 84 N. H. 1, 15. The purpose is as broad as that for which the property may validly be taxed. Ib., 13'. The public use refers to the public welfare, and not to an active use of the property in some particular manner. While in most cases there is such active use, yet if the general welfare is served, the use may be negative and merely an acquisition of the owner's title. A highway may be laid out with no purpose to devote its entire width to actual travel over it. The width not- used for travel conduces' to' the safety and convenience of travel, and is thus a public facility, but the use may be inoperatively exercised. Exclusion of private occupancy may' be a'public need. Public advantage- short of private aid, as more than use by the public, is a public use, and on this view authority for condemnation in behalf of persons or corporations under obligation to furnish a public service is sustained. Concord Railroad v. Greely, 17 N. H. 47; Holt v. Antrim, 64 N. H. 284; Rockingham &c. Co. v. Hobbs, 72 N. H. 531; McMillan v. Noyes, 75 N. H. 258; Eyers Woolen Co. v. Gilsum, 84 N. H. 1, 10-17. It \\\"is not that-some public benefit indirectly accruing from a private use of land is a public use of it, but that by the exercise of the power of eminent domain the public acquire a right.\\\" Holt v. Antrim, supra, 287.\\nExamples showing that active use of the property taken is not essential are cases validating slum clearance projects without the necessity of rebuilding on the sites cleared (Stockus v. Authority, 304 Mass. 507; Housing Authority v. Higginbotham, 135 Texas 158), and cases of swamp drainage (cited in 20 C. J. 580 and 18 Am. Jur. 698).\\nThat- public economy, including any proper measures lessening the burden of taxation, is a matter of the general welfare, needs no discussion. Const., Pt. I, art. 36. Riddance of private ownership causing undue public expense may be as great a public need as one requiring expenditure. A public use is served.\\nThe circumstance here that the city already has an easement in the property sought to be taken, is immaterial. The easement was obtained by grant, but if it had been obtained by condemnation, the taking of the plaintiff's remaining ownership will be no less to serve a public need. Eminent domain extends to the full exhaustion of private ownership. As an attribute of sovereignty its limits of exercise are unconfined if they meet a purpose of public welfare beyond that gained from private benefit. Whether a right or interest in the use of property is enlarged, or whether relief from burden is gained, the power to condemn is available. An annotation on the point is found in 108 A. L. R. 1522.\\nJudgment for the defendant.\\nBranch, J., did not sit: the others concurred.\"}" \ No newline at end of file diff --git a/nh/4433047.json b/nh/4433047.json new file mode 100644 index 0000000000000000000000000000000000000000..e0b7c8943c29f86f8c6e0111b9081216ed8a8e80 --- /dev/null +++ b/nh/4433047.json @@ -0,0 +1 @@ +"{\"id\": \"4433047\", \"name\": \"State v. Hampton Water Works Co.\", \"name_abbreviation\": \"State v. Hampton Water Works Co.\", \"decision_date\": \"1941-03-04\", \"docket_number\": \"No. 3189\", \"first_page\": 278, \"last_page\": \"298\", \"citations\": \"91 N.H. 278\", \"volume\": \"91\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Supreme Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-10T19:58:16.912870+00:00\", \"provenance\": \"CAP\", \"judges\": \"All concurred.\", \"parties\": \"State v. Hampton Water Works Co.\", \"head_matter\": \"Public Service Commission,\\nMarch 4, 1941.\\nNo. 3189.\\nState v. Hampton Water Works Co.\\nFrank B. Kenison, Attorney-General, for the State.\\nWyman, Starr, Booth, Wadleigh & Langdell (Mr. Wyman orally), for the appellant.\", \"word_count\": \"7199\", \"char_count\": \"42781\", \"text\": \"Allen, C. J.\\nBy an order dated June 13, 1940, the Commission prescribed rates based on a valuation of the company's property of $435,000, on a 5J^% rate of return, and on estimates of receipts and charges which would yield the return. The company claims a higher valuation, a higher rate of return and a higher estimate of charges. In its appeal it sets forth many specific claims of error in the Commission's findings of facts and rulings of law, as well as of failure to act upon requests for findings and rulings.\\nAt the outset, the discretionary scope of action upon the appeal as authorized by the statute (P. L., c. 239, s. 18) has been considered. Differing from the laws in many jurisdictions which limit rights of appeal from the orders of administrative tribunals in rate cases to issues of law, the local statute provides that an order or decision of the Commission may be vacated not only for errors of law, but as well if \\\"the court is satisfied, by a clear preponderance of the evidence before it, that such order is unjust or unreasonable\\\" (P. L., c. 239, s. 11). Under certain circumstances new evidence in addition to that received by the Commission may be introduced (lb., s. 12). The statute, in the measure of revisory power conferred by it, was construed in Grafton County &c. Co. v. State, 77 N. H. 490, 503-506, and the construction was impliedly adopted by the subsequent revision of the public laws in 1926, in which no change of language in the statute was made. The State's argument for a review giving more weight to the findings of the Commission than was considered the measure in that case is therefore more properly one to be addressed to the legislature than to the court. \\\" . it is the conscience of the appellate tribunal which is invoked.\\\" 75., 505.\\nAs a corollary proposition, the discretion vested in the court in prescribing the scope and terms of a remanding order is its own. The statutory mandate is to furnish directions under which the Commission may do what justice may require. Unfortunately the Commission and the company are here charged by each with a provocative attitude against the other in the proceeding. The Commission asserts that the company has been uncooperative. Its report is alleged to bear internal evidence that impartiality has not been duly observed. It has ignored the company's requests for findings and requests so far as specific answer to them has not been made. The claim is advanced that the Commission has evolved a value and rate to produce a certain income, contrary to the rule that \\\"the whole theory of rate regulation\\\" bars the rate of profit as a consideration of value. (Grafton County &c. Co. v. State, 77 N. H. 539, 543).\\nWithout analysis of the evidence respecting the charges, it is enough to say that the company, with no attack on the integrity or competency of the Commission, lacks confidence in its sense of fairness in the proceeding, while the Commission, aware of the challenge of its judicial impartiality, may more or less naturally, if unconsciously, be affected by it. It was said many years ago in Beattie v. Hilliard, 55 N. H. 428, 435, 436, that \\\"next to securing a fair and impartial trial for parties, it is important that they should feel that they have had such a trial.\\\" In pursuance of this policy of the law, it is thought that the ends of justice may be better accomplished by a full exercise of the revisory powers of the court. The special training, experience and skill of the Commission to deal with rate problems is given full recognition, but the proper conclusions from the evidence and the declaration of legal rules are here the matters chiefly in contention, so that on the whole, with all features of the situation considered, a recommitment to the Commission for further proceedings in the nature of a general new trial does not commend itself.\\nMoreover, \\\" 'If rate regulation is to be effective, there must come at some time an end of hearing and a decision of the questions involved.' \\\" St. Joseph &c. Co. v. United States, 298 U. S. 93. This is particularly true in view of the local statute (P. L., c. 238, s. 23) which limits the life of a rate order to a term not exceeding two years.\\nUpon the issue of value, it is elementary that it is one of fact, and that actual or historical cost and reproduction cost, with due regard for depreciation, are factors bearing importantly on value, neither cost being determinative as matter of law. The test that \\\"The value of property is what it is worth in money, what it will bring in money to the seller or what it will cost the buyer in money to obtain it\\\" (Grafton County &c. Co. v. State, 78 N. H. 330, 334) has not changed as the legal rule.\\nIt is not clear how the Commission arrived at the rate base of $435,000. But it is clear that they misinterpreted the statute relating to depreciation and took a view of the effect of depreciation contrary to law. In their report they advance the propositions, first, that the statute (P. L., c. 240, s. 11) impliedly forbids the use of a depreciation reserve for purposes of dividend declarations, and, second, that the customers may not justly be charged to pay a return on such part of value as has been created or maintained by money furnished by them.\\nIn respect to the statute, its construction by the Commission is utterly indefensible. Its provisions (P. L., c. 240, ss. 9,10,11) require a utility to carry a \\\"proper and adequate\\\" depreciation account as the Commission may require and under its regulations, that the fund may be used for restorations or additions, or invested until such use with the income from it in invested form to be added to the fund, and that no dividends shall be paid \\\"except out of net corporate income, and except after setting aside\\\" any required depreciation reserve.\\nWhile the statute requires income from the fund in an invested form to be added to the fund, it is silent as to any other limitation barring the utility from treating the fund like any other capital after its use for restorations or additions. The purpose of the statute is to secure the eventual use of the fund in rehabilitation and development of the plant; it is in the interest of the consuming public that service shall not be impaired, and the establishment of the fund and its use in such manner serves to maintain the plant in its integrity and to permit its enlargement to meet increased demand for its service. The statutory objective is thus accomplished, and the objective is further effected by control confining the source of dividends to net earnings after setting aside a proper reserve. Beyond this the statute in question does not undertake to make regulations affecting rates. It is not intended to operate as a restrictive test in the finding of just and reasonable rates in addition to its express terms. The statute for such rates (P. L., c. 238, s. 5) is under no implied control. The express bar to the payment of dividends from the income of the fund while it is in an invested form implies no bar beyond that. If a result of a bar of any return to the owners from the depreciation account after its use for restorations and additions had been the legislative purpose, it would have been expressed in general and sweeping terms. Clearly a limited bar covers only its limits.\\nThe language in the statute prohibiting dividends except from net earnings and after setting aside the depreciation reserve means that the reserve shall be deducted from the gross earnings as an item chargeable against them before the net earnings are ascertained. This is understood to accord with the accounting system everywhere adopted in the bookkeeping of utilities.\\nTo sustain the Commission's construction would be to hold that a utility's system could earn money for its owners only on its depreciated value, which would become less as depreciation increased, with an eventual depreciation equal to the actual value. The confiscatory result of a system without earning value to the owners would thus ensue.\\nIn respect to the effect of depreciation in arriving at a proper rate base, aside from statutory regulation, the Commission's report states that \\\"unless the accrued reserve is deducted the real investment or equity of the owners will be overstated,\\\" and that \\\" . it is difficult if not impossible, to justify any treatment which would force the customers to pay a return on the moneys which these cus tomers have contributed for the sole purpose of restoring intact the actual investment sacrifice of the utility.\\\"\\nThis position is considered to be in conflict with the statutory enactment that rates shall be just and reasonable. While the issue of what is just and reasonable is one of fact, the requirement of balanced adjustment of the respective interests of owners and consumers as the test of what is just and reasonable is matter of law. A proper rate is one of yield from property without loss of investment. Carrying the Commission's position to its logical conclusion, an eventual entire loss of value for rate making purposes would occur, as already pointed out. The quoted statement suggests no qualification in avoidance of such a result. The Commission has found the depreciation charge proper and adequate. No inquiry has been made to analyze the use of the fund between restorations and additions.\\nThe view that a proper and adequate depreciation reserve is an addition to capital seems contrary to fact. In definition, \\\"Broadly speaking, depreciation is the loss, not restored by current'maintenance, which is due to all the factors causing the ultimate retirement of the property. These factors embrace wear and tear, decay, inadequacy and obsolescence. Annual depreciation is the loss which takes place in a year. In determining reasonable rates for supplying public service, it is proper to include in the operating expenses, that is, in the cost of producing the service, an allowance for consumption of capital in order to maintain the integrity of the investment in the service rendered.\\\" Lindheimer v. Company, 292 U. S. 151, 167. It has otherwise been defined as \\\"the loss in service value not restored by current maintenance and incurred in connection with the consumption or prospective retirement of property in the course of service from causes against which the carrier [or utility] is not protected by insurance, which are known to be in current operation, and whose effect can be forecast with a reasonable approach to accuracy\\\" (177 Int. Com. Rep. 422).\\nThe depreciation fund, if used for the purposes thus stated, adds nothing to capital investment, but only maintains it. The original plant continues intact, and at the end of any given period is in the same condition as at the commencement of the period, if the fund has been used to keep it thus maintained. In a fair, if not strictly accurate, distinction, the expense of ordinary repairs is charged to operating costs, while that of extraordinary repairs, including renewals, replacements and restorations, is met from the depreciation account. Both kinds of repairs are necessary to keep the plant from running down, and to maintain efficiency. The public demand for efficient and continuous service calls for a standard of maintenance which will produce such service. The right of the owners of the utility that their investment shall not be impaired predicates the right of return from it on the basis of non-impairment. So far as it is impaired through service to the public, in justice the public should meet the expense of restoration. No fair reason can be given for saying that if the public should pay enough to give a fair return or income from the investment, they should not also pay enough to keep it maintained. The rule that property may yield a fair return assumes that the return is not gradually to diminish through lowering base rates. If the owners, instead of the consumers, paid the depreciation account without allowance for it in the rate of return, their investment would be increased by its amount, whether it was paid directly by them or taken from the net earnings figured without the allowance. The consumers paying, the investment is unchanged.\\nWhatever the difficulties of determining proper and adequate depreciation, whatever the difference in the methods of observed and pragmatic depreciation, whatever the merits between arithmetical and progressive depreciation, justice and reasonableness do not impose upon the owner any burden leading towards ultimate loss of value in respect to profitable use.\\nNo question is presented here of excessive depreciation. The Commission has found the amount charged to be proper and adequate. While the statute permits the use of the fund for additions as well as for restorations, the finding implies that it has all been needed to avoid actual depreciation. So far as a reserve has proved excessive, the question is not presented. But even if it were, no good reason is perceived why it is not just that the utility investment should not receive treatment similar to an enterprise not subject to the utility law. The utility rates, and hence the earnings, are under control, but rates are fair if, without being excessive, they correspond with charges of enterprises having similar features. The owner of an apartment building is expected to charge rentals which will include some estimate for depreciation. The utility does not seem to stand differently in this aspect of comparison. The landlord's rent charge would not be found unreasonable on account of the depreciation item as one of its elements, if the item were not excessive. It is not unfair to the public that a utility enterprise should be in a parallel position.\\nThe historical cost is $485,000. So far as cost measures value, the property is worth that figure. If the \\\"net continuing investment,\\\" as the actual payments by the owners for the system, is $390,000, it follows that $95,000 has been taken from the depreciation reserve and used towards the historical cost. But it was needed in maintenance of the system, since no excessive depreciation reserve has accrued. It follows that money from a proper depreciation reserve has been used for proper depreciation purposes. In theory, not more property, but property maintained efficiently and without obsolescence, is the objective. If value is thereby increased, it is an incidental result. Maintenance, to be efficient in meeting the demands of those served, may reasonably be progressive as well as static. A plant, without enlargement, may require development in productive capacity and to conform to present day standards, as a matter of maintenance. The line between plant enlargement and maintenance may not always be readily drawn, but it lies in the field of facts and not of law. The expense of such maintenance is fairly chargeable to receipts from carrying on the business, instead of to capital. Being required to supply the demands of reasonable service, such maintenance is a part of the services, in final analysis, the expense of which the users of the service may fairly be required to pay. If no charge for depreciation were made against those whom the property serves, a plant inefficiently maintained would in time follow, unless the owners were required in some form of assessment, to pay the charge. If the payment were taken from net income, an inadequate return would follow. If it were paid direct by the owners, it would be new capital supplied only for maintenance. In either method of provision for it, an expense of service would fall upon the owners. They would thus be paying in part for the service received by the consumers.\\nThe Commission's theory confuses cost and value. Value depends upon many factors. Even a physically well maintained plant may suffer loss in value, for reasons such as loss of business and mismanagement. A fair return is then not on cost or \\\"net continuing investment,\\\" but only on the actual value at the time.\\nThe continued use of property for a given purpose involves its continued adaptation for it. To keep it adapted is an essential element of furnishing service. It is a department of operation, and the charge for it, from the constitutional standpoint of ownership, is as proper an expense of operation as that of labor or taxes.\\nMoreover, from the constitutional standpoint, the \\\"prudent in vestment\\\" theory, to which the Commission pay some tribute, is unsound. \\\" . . . the making of a just return for the use of the property involves the recognition of its fair value if it be more than its cost. The property is held in private ownership, and it is that property, and not the original cost of it, of which the owner may not be deprived without due process of law.\\\" Minnesota Rate Cases, 230 U. S. 352, 454. The Commission has placed emphasis on the \\\"net continuing investment\\\" of the owners, as important, although not controlling, in arriving at the rate base. That the owners should be allowed nothing for actual growth of value, while suffering losses, is so contrary to the incidents of ownership as to conflict with constitutional principles. Regulation may not prescribe fixed and permanent values; and the rate base must be of present value of property properly and lawfully acquired, whatever its actual cost.\\nIf the system were acquired by some municipality under eminent domain, it would pay the owners the fair value of the system, and the rate base ought to be no less. \\\"When the property itself is taken by the exertion of the power of eminent domain, just compensation is its value at the time of the taking. So, where by legislation prescribing rates or charges the use of the property is taken, just compensation assured by these constitutional provisions [the fifth and fourteenth amendments of the federal Constitution] is a reasonable rate of return upon that value,\\\" West v. Company, 295 U. S. 662, 671, in which a measure of value of actual book costs less depreciation was held violative of due process. Even as to accumulated excessive depreciation, the consumers have no interest in it. \\\"The revenue paid by the customers for service belongs to the company. The amount, if any, remaining after paying taxes and operating expenses, including the expense of depreciation is the company's compensation for the use of its property. If there is no return or if the amount is less than a reasonable return, the company must bear the loss. Past losses cannot be used to enhance the value of the property or to support a claim that rates for the future are confiscatory. . . . And the law does not require the company to give up for the benefit of future subscribers any part of its accumulations from past operations. Profits of the past cannot be used to sustain confiscatory rates for the future. . . . [Citations omitted] Customers pay for service, not for the property used to render it. Their payments are not contributions to depreciation or other operating expenses or to capital of the company. By paying bills for service they do not acquire any interest, legal or equitable, in the property used for their convenience or in the funds of the company. Property paid for out of moneys received for service belongs to the company, just as does that purchased out of proceeds of its bonds and stock.\\\" Board &c. v. Company, 271 U. S. 23, 31, 32.\\nThe company's accrued depreciation reserve, as a book-keeping entry, is to be treated as an asset inuring to its benefit, by force of the state and federal constitutions. When property is taken for public use, fair payment for what is taken must be made, whether the property is taken over outright or whether its product in the form of service is taken. Any effect of excessive depreciation on rates is produced in determining a fair and reasonable rate of return not less than a non-confiscatory level, without reduction of the rate base.\\nThe company's claim of value for the intangible element of goodwill or standing as a going concern in addition to property value is disallowed. The property value, whether based on actual cost or reproductive cost net, or with both costs given weight, assumes a demand for the use of the property, without which it would have only salvage value. As the Commission's report sets forth: \\\"Attempts to justify going concern value as a separate item run into a maze of contradictions between theory and practice, between the growth of the actual plant and the dedication of the hypothetical plant to actual use.\\\" \\\"The value of appellant's property used in stockyard services is single in substance. . . . While it may be considered as made up of tangible and intangible elements, it is not necessarily to be appraised by adding to cost figures attributable to mere physical plant something to cover the value of the business. . . . Value depends upon use and is measured, or at least significantly indicated, by the profitableness of present and prospective service rendered at rates that are just and reasonable as between the owner of and those served by the property. . . . [Citations omitted] It is elementary that value of a going concern may be less than, equal to, or more than, present cost of plant less depreciation plus necessary supplies and working capital.\\\" Denver &c. Co. v. United States, 304 U. S. 470, 479. The evidence of such value here, separate from and in addition to plant value, is a conjectural estimate, arbitrary in character, and unentitled to adoption in any measure.\\nIn respect to actual costs and depreciation, the evidence proves a cost of about $485,000 and a depreciation of about $103,000 found by the Commission to be proper and adequate and amounting to 21% of the cost.\\nIn respect to reproduction cost, its purpose is to aid in throwing light on value. It is relevant evidence bearing on value in the legal sense of value for sale or purchase. As greater or less than actual cost, it is evidence of bearing on present value. It may assume two forms of computation. One shows how a system parallel with the actual one would compare in its historical cost if present day costs had been expended in the construction of the actual system. The other shows what the actual system would cost at present day prices if it were constructed as a complete project in a single installation. The results of both methods are of service in determining the issue of value, although they may not coincide. The reproduction cost under either method being properly depreciated, a figure is reached which shows more or less approximately present value on the basis of present costs. The changes in costs in their aggregate equal the difference between historical and reproductive costs on the assumed basis of equality of management in constructing, developing and maintaining the system. Increases or decreases in property prices and construction expense may thus be comprehensively shown as evidence of greater or less present value.\\nIt is said in Grafton County &c. Co. v. State, 78 N. H. 330, 334: \\\"What a new plant would cost would be of great importance to one proposing to purchase one in operation.\\\" No rule of law was thereby declared, and it was no more than an opinion dealing with the facts of the case. It was regarded in discretion as the best evidence. The difficulties and uncertainties in ascertaining reproduction costs of course vary in different cases. Many factors cannot be resolved by mathematical computation. Length of service, life of different component parts of the system, obsolescence resulting in doubtful availability of identical replacements, and changes in adaptability, may be mentioned as presenting problems of opinion. And experts may employ different methods of computation affecting their estimates. But it does not appear that the company's plant might not be reproduced with substantially the same type of construction and equipment which it now has. The different elements in the plant of a water utility, of water supply, pumping stations, rights of way, pipe lines, hydrants, service connections and equipment, and other structures, are more standardized through length of time than are some of the elements which go to make up the plant of an electric utility. If the estimates of experts vary, they are nevertheless to be considered, their relative weights passed upon, and a finding deduced in the same manner as opinion evidence in general is examined and appraised.\\nThree estimates of reproduction costs by experts have been made. Two of the experts were engaged by the Commission and one by the company. The Commission somewhat summarily dismissed from consideration the appraisal of Mr. Lord, one of its own experts. His qualifications were admitted, but at the time of the hearing he was dead, and because he could not be examined as a witness in explanation of the items of his report, the Commission discarded the report as having no evidentiary value aside from its service as an unappraised inventory. It is thought that the report did not receive due weight from the Commission. It was in evidence that his appraisals were made after thorough and painstaking search, inquiry and checks. He was competent. The Commission has found that the witness Clair \\\"did not agree with the prices used,\\\" when Clair's testimony also was that he and Mr. Lord were in substantial agreement on prices. Moreover, the Lord appraisal was completed and submitted by Mr. Clair as an expert in the engineering firm engaged by the Commission for appraisal service. The circumstance that the Lord appraisal was made some three years before the others is of negligible consequence when allowance for plant additions during the period is made. The price level of materials and labor is not shown to have undergone any material change subsequent to the appraisal.\\nIn some comparison of the experts' estimates, the cost estimate of Mr. Lord was $682,000. Thereafter the company incurred a capital expenditure of about $65,000, which would increase the estimate when brought to date and in line with the others, to $747,000. Mr. Morrison, the other expert hired by the Commission, estimated a reproduction cost of $675,000, while Mr. Newsom, the company's expert, arrived at a figure of $895,000. This figure included $50,000 as an item for intangible value, or value as a going concern, and over $100,000 as an item for \\\"miscellaneous construction and equipment expense,\\\" understood to be largely an estimate for contractors' overlay and for overhead expense upon the basis of a newly constructed system as a unit, rather than of applying present prices to the existing system. If these two items, amounting to $150,000, are deducted, the result of $745,000 is in surprisingly close accord with the Lord adjusted estimate of $747,000. This virtual agreement not only strengthens the force of each of the two estimates but tends to lessen the value of the Morrison estimate. Aside from the two special items of the Newsom appraisal which have been mentioned and for which Morrison made no allowance, the chief difference in their esti mates is in the item of distribution mains and hydrants, the Newsom figure for the item being $50,000 higher than Morrison's.\\nThere are thus the adjusted figures of $675,000 for the Morrison appraisal, $745,000 for Newsom's, and $747,000 for Lord's. Their allowances for depreciation are at wide variance. It would seem that the company's actual depreciation reserve, found by the Commission to be adequate and proper, should be applied in proportion to reproduction costs. The company has an allowed depreciation of 21% of actual cost. Applying this percentage to the foregoing figures for reproduction costs, the depreciations amount respectively and roundly to $142,000, $156,500 and $157,000, producing the reproduction cost net figures respectively and roundly of $533,000, $588,000 and $590,000.\\nThe Commission has undertaken in extensive and elaborate analysis to show that the estimates of reproduction costs are too high. While avoiding any conclusion of a definite figure, they find, by necessary inference, that the lowest estimate of $675,000 is excessive. They have suggested various tests and checks pointing to that conclusion. Survey of the evidence and study of the Commission's report make it clear that the report is unduly critical. It is not deemed expedient that the various points and methods of bearing should here receive specific and detailed treatment. Many of them are based in measurable degree on opinion evidence, and the value of the evidence upon the items considered separately is differently appraised by the members of the court.\\nWithout statement of the manner in which we have reached our conclusions, all of us are in agreement that while taking the findings of the Commission as prima facie correct, \\\"it plainly appears 'beyond reasonable controversy' \\\" (Grafton County &c. Co. v. State, 77 N. H. 490, 509) that the reproduction cost of the company's system is at least $660,000. Assuming a depreciation of 21%, it results in a reproduction cost net of $521,400. But since, as already appears, the depreciation reserve is to be treated as an asset of the utility, a value of $660,000 remains if reproductive cost were to measure actual value. The actual cost of $485,000 is admitted. The present value, as the base rate, is $560,000, taking into account actual and reproductive costs, depreciation and other relevant evidence.\\nIn respect to rate of return, \\\"it is manifest that just compensation for a utility, requiring for efficient public service skillful and prudent management as well as use of the plant, and whose rates are subject to public regulation, is more than current interest on mere invest ment. Sound business management requires that after paying all expenses of operation, setting aside the necessary sums for depreciation, payment of interest and reasonable dividends, there should still remain something to be passed to the surplus account; and a rate of return which does not admit of that being done is not sufficient to assure confidence in the financial soundness of the utility to maintain its credit and enable it to raise money necessary for the proper discharge of its public duties.\\\" United &c. Co. v. West, 280 U. S. 234, 251, 252. \\\"A public utility is entitled to such rates as will permit it to earn a return on the value of the property which it employs for the convenience of the public equal to that generally being made at the same time and in the same general part of the country on investments in other business undertakings which are attended by corresponding risks and uncertainties; but it has no constitutional right to profits such as are realized or anticipated in highly profitable enterprises or speculative ventures. The return should be reasonably sufficient to assure confidence in the financial soundness of the utility, and should be adequate, under efficient and economical management, to maintain and support its credit and enable it to raise the money necessary for the discharge of its public duties. A rate of return may be reasonable at one time and become too high or too low by changes affecting opportunities for investment, the money market and business conditions generally.\\\" Bluefield &c. Co. v. Commission, 262 U. S. 679, 692, 693.\\nIn Los Angeles &c. Corp. v. Commission, 289 U. S. 287, 320, \\\"the general situation as to investments\\\" was held to be a factor of consideration, and \\\"business conditions\\\" were similarly taken into account in Dayton &c. Co. v. Commission, 292 U. S. 290, 311. Judicial notice is taken of the downward trend and course of yield from invested property in its various forms, kind and character during the past ten years. In general the yield has been reduced from one-half to one-third. In other words, it takes from one and one-half to two times as much money to yield what the basic amount formerly did. In fairness, this widespread and unspecialized feature of investments should be recognized in the case of utilities as well as other enterprises. They are entitled to no exemption from the common lot. The company's financial condition is stable and sound, and with a surplus account, on the basis of the rate base of $560,000, of about $188,000, or an overlay of about one-third, its credit requirements for sustaining its needs of physical maintenance and service do not appear doubtful. Its \\\"relations and opportunities\\\" free its integrity from danger of attack. The risks of fluctuations in its amount of business appear slight, while the risks of disasters and destruction are not impressive. The history from year to year has been of steady and continuous growth with minor exceptions.\\nInvolved in the finding of a just rate of return is the effect of the different securities in the capital structure of the company. By economic principles and experience, income yield lessens with increasing security of capital. When there are, as here, mortgage bonds, preferred and common stocks, the amount of the mortgage lien represents an interest in the property equal to the amount. While not full ownership, yet the equity or interest of the stocks is measured in value by deducting the mortgage debt from the full value of the property mortgaged. In any enterprise whose property is encumbered with a morgtage debt, the interest on the debt is classified as an operating expense. In the case of a utility, good management requires reasonable economy in operation, and hence the hiring of money at no greater rates than the market offers. A reduction in interest rates, reducing the charges against receipts, would seem in justice and at least in some measure to inure to the benefit of the customers of the company. If the holders of common stock receive all the gain in net earnings resulting from the reduction, the consumers lose all benefit from the saving. Under the principle that fair rates are a balance of interest between owners and ratepayer, a less expensive service should spell a lower charge for it. While in technique the mortgage is but a lien on the property, and while, as usually phrased, the owners are entitled to a fair return from the use of the property, in reality there is an equity ownership, and not a full ownership, when the property is under lien. If the property were taken under eminent domain proceedings, the owners would be paid only the value of the equity interest. If the owners paid the mortgage debt, there would then be no interest charge, and they would then be entitled to a rate of return based on their full ownership. If, without any debt, a utility issued preferred and common stocks in equal amounts and sharing equally in liquidation, a low dividend rate for the preferred stock would not justify the holders of common stock to any claim of return based on the low rate for the preferred stock. Rates are established in social protection for the general welfare, and in keeping expense at its lowest point consistent with efficiency with a fair return on actual ownership interest, no confiscatory action is perceived.\\n\\\" . . . each utility presents an individual problem. The answer does not lie alone in average yields of seemingly comparable securities.....Yields of preferred and common stocks are to be considered as well as those of the funded debt. When bonds and preferred stocks of well seasoned companies can be floated at low rates, the allowance of an over all rate return of a modest percentage will bring handsome yields to the common stock. Certainly the yields of the equity issues must be larger than that for the underlying securities.\\\" Driscoll v. Company, 307 U. S. 104, 119, 120.\\nWith due weight given to the foregoing and other points of pertinence, the rate of found by the Commission as just and reasonable is not so clearly too low as to require the finding to be set aside. In analysis, the common stock, representing the equity ownership of all the surplus and of less than one-seventh in the remaining value of the plant, or a 423^% ownership of the entire value, will receive over one-half of the expected net return, at a rate of 7% on such ownership.\\nThe result imposes on the Commission the duty to recalculate the charges for water. In their estimate of receipts and expenses they should have the benefit of the company's report showing their actual amount in 1940.\\nIn respect to rate case expense, the Commission recognizes it as a proper operating expense, but has declined to amortize it over a term of years. Also, it has made no charge for its own expenses in the case. This is a clear disregard of the statute (Laws 1931, c. 127, s. 1) which provides that its expense involved in an investigation \\\"shall\\\" be paid by the utility to an amount not over one-half of one per cent of the utility's existing valuation, to be charged to the utility's operating expenses and amortized over such period as the Commission shall fix. Upon the valuation as found, the utility is to be charged for such expense to an amount not over $2,800.\\nWith reference to the company's own rate-case expense, the Commission assigns various reasons for denying its amortization. Among the reasons, excessive costs, some allocation to other matters, ability to pay and payment of all or a large part out of operating expense, and difficulty in determining a reasonable allowance, are given. These reasons are insufficient for the denial. Difficulty in performing the duty to determine what is just and reasonable is no relief from the duty. Excessive and improper charges may be found in amount as well as a fact. If unreasonably incurred, if undue in amount, if chargeable to other accounts, they may be to that extent reduced.\\nThe present case was instituted in 1939, and is still pending. The company's expenses reasonably incurred in connection with it, in- eluding those of the appeal, are to be ascertained. The Commission's statement that the 1939 expense of the company is a non-recurring item cannot be true either for 1940 or 1941, with the case being yet unconcluded.\\nAmortization for the expense is a demand of justice, to satisfy the principle of equalization. The company would be justified in spreading the expense over a reasonable term of years, instead of paying all of it in a part of the term, to the saving of operating expenses for the balance of the term. The effect of present payment is to reduce operating expenses in later years below a fair and proper level. The payment is for a service from which benefit in later years is derived. Fairly the customers are not entitled to the service without paying for it on a basis of adjustment which amortization is necessary to produce. A special operating expense ought not to be disregarded in the estimate of the receipts adequate over expenses to leave the amount of return called for by the rate. And its distribution through a reasonable term is as fair to customer as to owner.\\nThe rate term is not over two years (P. L., c. 238, s. 23), but investigations oftener than once in five years are not required (Laws 1931, c. 127, s. 2). In the lack of substantial evidence that another investigation will transpire within the quinquennial period, it should be employed as the only reasonable one to take for the amortization.\\nIt is thought that the foregoing views of legal and factual issues are adequate in action upon the appeal. Specific treatment of the grounds of appeal beyond that given appears unnecessary. Many of the grounds become moot by reason of the discretion adopted in the extent of revision of the Commission's orders. The refusal of the Commission to discharge its duty \\\"to find all facts which either party may request essential to the presentation of all questions of law raised by any decision or order made by them\\\" (Grafton County &c. Co. v. State, 77 N. H. 490, 498) may be noted. Answer to such requests is of benefit in the exercise of the revisory authority provided by the statute. Any fact taken into account, or which should be taken, in reaching the decision or order is essential, and performance of the duty is not excused on the ground that it is burdensome. It is evident that with such findings the exercise of the revisory power is facilitated and may, in discretion, be substantially narrowed.\\nThe case is remanded for further proceedings pursuant to and consistent with this opinion.\\nRemanded.\\nAll concurred.\"}" \ No newline at end of file diff --git a/nh/4433550.json b/nh/4433550.json new file mode 100644 index 0000000000000000000000000000000000000000..a508588f3d0525f4b1f6461a3a4247d15ce75693 --- /dev/null +++ b/nh/4433550.json @@ -0,0 +1 @@ +"{\"id\": \"4433550\", \"name\": \"Jerry Berounsky v. William F. Ogden\", \"name_abbreviation\": \"Berounsky v. Ogden\", \"decision_date\": \"1939-11-07\", \"docket_number\": \"No. 3111\", \"first_page\": 334, \"last_page\": \"337\", \"citations\": \"90 N.H. 334\", \"volume\": \"90\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Supreme Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-11T00:34:14.606383+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Jerry Berounsky v. William F. Ogden.\", \"head_matter\": \"Strafford,\\nNov. 7, 1939.\\nNo. 3111.\\nJerry Berounsky v. William F. Ogden.\\nHughes & Burns (Mr. Burns orally), for the plaintiff.\\nPaul E. Nourie (by brief and orally), for the defendant.\", \"word_count\": \"1365\", \"char_count\": \"7677\", \"text\": \"Marble, J.\\nThe accident occurred about two miles south of Dover on an easterly curve in the highway leading from that city to Portsmouth. The road at that point comprised two lanes of cement, each ten feet wide, flanked by a twelve-inch strip of tarvia and a gravel shoulder six or seven feet in width. A line of electric light poles, situated about eleven feet west of the westerly edge of the cement, ran approximately parallel to the highway, the general direction of which was north and south. Somewhat nearer the cement a few black-and-white posts, without guardrail or cable, had been installed. To the west of these posts the ground declined rather sharply to an open field.\\nThe time of the accident was about 9:30 o'clock in the evening. The plaintiff was driving from Dover to Portsmouth. He testified that as he approached the curve in question he observed the headlights of the defendant's automobile, which appeared to be coming toward him; that when he was within seventy-five feet of these lights he saw that the car was on the westerly side of the highway; that he then decreased his speed, which did not exceed thirty or thirty-five miles an hour, and sounded his horn in the expectation that the defendant would turn to the right, and that he had reached a point thirty-five or forty feet from the lights when he first became aware of the fact that the car was stationary.\\nHe described the position of the car as about in the middle of the road with its right-hand wheels on the center line of the highway. He further testified that he applied his brakes and turned to the right, intending to pass between the car and one of the black-and-white posts, situated about seven feet west of the westerly edge of the cement (a space which gave him \\\"lots of room to go by\\\"), when he suddenly discovered a large motor truck parked about ten or twelve feet south of the car. This truck was headed toward Portsmouth and occupied practically the entire width of the shoulder. It was not visible to him until he \\\"got clear of the headlights of the Ogden car.\\\" To avoid hitting the truck he turned farther to the right and in so doing struck the post and an electric light pole, receiving thereby the injuries for which he seeks recovery.\\nThe defendant was an inspector for the Boston & Maine Transportation Company, having charge of that company's equipment at various terminal stations. On the evening of the accident he happened to meet one of the company's motor trucks going toward Portsmouth and noticed that a marker light had apparently burned out. He halted the truck and, while the bulb was being replaced, parked his car at the rear of the truck, headed north with the headlights on, as a means of warning approaching traffic.\\nHe denied the plaintiff's assertion that his car was on the cement and stated definitely that it was on the shoulder of the road within a foot and a half of one of the black-and-white posts. The position of the truck and the location of wheel marks alleged to have been made by the plaintiff's car were also in dispute. But this conflict in the testimony merely presented issues of fact for the determination of the jury. The motions for a nonsuit and directed verdict were correctly denied. Putnam v. Bowman, 89 N. H. 200.\\nThe defendant excepted to the submission of the case to the jury under the emergency doctrine. The plaintiff testified that the headlights of the defendant's car obstructed his view of the motor truck and that he did not see the truck until it loomed up in front of him. \\\"An emergency being a sudden unexpected occurrence calling for immediate action to meet its dangers, the sufficiency of the evidence on the issue therefore appears.\\\" Kardasinski v. Koford, 88 N. H. 444, 446. Nor can the defendant's contention that the plaintiff \\\"negligently brought about the emergency\\\" (Precourt v. Driscoll, 85 N. H. 280, 290) be sustained as a conclusion of law.\\nThe exceptions to the admission of evidence appear to be without merit but need not be considered in detail since the verdict must be set aside.\\nThe plaintiff requested an instruction to the effect that the jury might consider the law of the road (P. L., c. 90, s. 1) as bearing on \\\"the duty of the defendant to have his car to the right of the center of the traveled part of the road as the plaintiff approached and was about to pass.\\\" The Presiding Justice neither granted nor denied this request in express terms, but instructed the jurors that the statute \\\"probably\\\" had some application and that they might apply it in so far as they wanted \\\"to use it\\\" and \\\"to apply it.\\\" The defendant's exception to the \\\"granting\\\" of the request on the ground that the law of the road had no application to the case may fairly be said to constitute a general exception to that part of the charge relating to section 1 of chapter 90 of the Public Laws.\\nThe law of the road provides that \\\"If a person traveling on a highway with a vehicle meets another person so traveling in the opposite direction, he shall seasonably turn to the right of the center of the traveled part of the road, so that each may pass the other without interference.\\\" Since the defendant was not traveling at the time of the accident, neither his conduct nor that of the plaintiff in passing him was subject to that particular statute. See Reed v. Company, 84 N. H. 156, 159; Praded v. Magown, 88 N. H. 405, 407, 408, and cases cited; Nickerson v. Bentley, 89 N. H. 533, 534; 3-4 Huddy, Automobile Law (9th ed.), s. 112, p. 180.\\nThe court instructed the jury in part as follows: \\\"The statute [P. L., c. 90, s. 1] requires that opposing traffic turn, the operators of opposing traffic, each turn to their respective rights, but in this particular case the evidence is practically, there's no conflict in the evidence that at the time that Mr. Berounsky's car passed the Ogden car the Ogden car was not in motion and so there is not, the statute itself hasn't the application that is generally resorted to in so-called head-on collisions, but you may consider the statute . as bearing upon the conduct of the plaintiff in turning to the right as he was about to meet and pass the defendant's car. The evidence, I believe that it is his claim that he first discovered that the defendant's car was not in motion when he was some forty feet away from it and that he did turn to his right immediately thereafter so on the question of his conduct at that time you may consider whether or not there was any violation of Public Laws, Chapter 90, Section 1. That is bearing on the conduct of the plaintiff in turning to the right as he was about to meet and pass the defendant's car.\\\"\\nElsewhere in the charge attention is called to the fact that although, strictly speaking, \\\"there is no such thing as the right side and wrong side of the highway,\\\" it is the custom for travelers to keep to their right. Nowhere in the course of his instructions, however, did the Presiding Justice definitely state that this custom was merely a circumstance to be considered on the question of the plaintiff's conduct or that, under the conditions disclosed by the testimony, the plaintiff might lawfully have turned to the left.\\nThe plaintiff's acts were to be tested by the rule of reasonable care and not by the law of the road. Yet, under the instructions as given, the jurors were permitted to regard his conduct more leniently because he did not violate a statutory mandate inapplicable to the situation.\\nNew trial.\\nAll concurred.\"}" \ No newline at end of file diff --git a/nh/4433967.json b/nh/4433967.json new file mode 100644 index 0000000000000000000000000000000000000000..4bf75f3d7e77cda19bdd64348b99fa364cdd6ea5 --- /dev/null +++ b/nh/4433967.json @@ -0,0 +1 @@ +"{\"id\": \"4433967\", \"name\": \"Lehigh Navigation Coal Co. v. Keene Coal Co.\", \"name_abbreviation\": \"Lehigh Navigation Coal Co. v. Keene Coal Co.\", \"decision_date\": \"1938-02-01\", \"docket_number\": \"\", \"first_page\": 274, \"last_page\": \"277\", \"citations\": \"89 N.H. 274\", \"volume\": \"89\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Supreme Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-10T21:07:23.826281+00:00\", \"provenance\": \"CAP\", \"judges\": \"All concurred.\", \"parties\": \"Lehigh Navigation Coal Co. v. Keene Coal Co.\", \"head_matter\": \"Cheshire,\\nFeb. 1, 1938.\\nLehigh Navigation Coal Co. v. Keene Coal Co.\\nJ. Edward Flynn and Roy M. Pickard {Mr. Pickard orally), for the plaintiff.\\nChester B. Jordan (by brief and orally), for the defendant.\", \"word_count\": \"755\", \"char_count\": \"4272\", \"text\": \"Marble, J.\\n\\\"All special pleas and brief statements shall be filed within sixty days from the commencement of the term when the action is entered . . . .\\\" (Rule 17 of the Superior Court), and \\\"No set-off shall be filed after ninety days from the entry of the action, except by leave of court and upon payment of costs . . . .\\\" (Rule 22 of the Superior Court). 78 N. H. 691, 692. These rules are \\\"consistent with the laws\\\" (P. L., c. 316, s. 7; Carr v. Adams, 70 N. H. 622), and their enforcement rests in the sound discretion of the trial court. Corbett v. Norcross, 20 N. H. 366, 369; Noyes v. Edgerly, 71 N. H. 500, 502; Hutchinson v. Railway, 73 N. H. 271, 283; 2 Hening's Digest, 1402.\\nSince the defendant did not ask leave to file its special plea until three years after the entry of the plaintiff's action and until more than six years after some, if not all, of the alleged counter-indebtedness had accrued (see 37 C. J. 805), it can scarcely be said that the Presiding Justice exceeded the limits of his discretion in rejecting the answer. Moreover, it is doubtful if the defendant would have been entitled to prove as a counterclaim certain of the items included therein even if the answer had been seasonably filed.\\nA counterclaim \\\"other than a debt or demand which is the subject of set-off or recoupment is not known to the common law and does not here obtain by statute.\\\" Derry Loan &c. Co. v. Falconer, 84 N. H. 450, 454. Recoupment is available to a defendant only when the demands of both parties arise out of the same contract or transaction, and under the statute of set-off (P. L., c. 335, ss. 7-13), a claim for unliquidated damages cannot be maintained. Arcadia &c. Mills v. Company, ante, 188. The non-residence of the plaintiff is not alleged, and no equitable ground for the allowance of a set-off is claimed.\\nIt is suggested, however, that the first paragraph of the answer is a plea of the general issue and that, under that plea, the defendant should have been permitted to show a failure of consideration for the notes in question. So far as the record discloses, no such claim was ever made before the referee or the trial court. Indeed, throughout the entire controversy, the notes seem to have been treated as valid independent obligations, and the only failure of consideration now asserted is the failure of the plaintiff to pay an alleged indebtedness which, according to the answer, antedates the notes by nearly four years. The validity of the notes is definitely recognized by a credit for the balance due thereon, which appears in the items of the answer. A payment was made by the defendant during the pendency of the action, and \\\"such payment is an admission that the action was brought for good cause.\\\" Williams v. Tappan, 23 N. H. 385, 394.\\nThe discussion between the referee and counsel, at which the parties themselves were present, constituted an informal hearing. Woodsville Fire District v. Cray, 88 N. H. 264, 266; Vidal v. Errol, 86 N. H. 585. The result of that hearing was the recommendation that judgment be entered for the plaintiff \\\"in the event that the motion to file an offset\\\" should be denied by the Superior Court. It is true that the court denied this motion and ordered judgment on the report as a matter of course. But defendant's counsel was fully-heard on the motion to vacate the judgment, and the only offer of proof then made was an offer to show that the plaintiff was not surprised by the answer \\\"for the reason that negotiations had been going on to try and effect a settlement of the claim since the suit was brought.\\\" The court correctly ruled that this evidence did not establish the defendant's right \\\"to file the set-off over the plaintiff's objection.\\\"\\nHere, as in the case of Ela v. Goss, 20 N. H. 52, 57, the defendant \\\"has not shown that substantial justice requires a new trial, or that any real injustice has been done\\\" by the refusal of the court to receive the belated plea. It follows that the motion to vacate the judgment was properly denied.\\nExceptions overruled.\\nAll concurred.\"}" \ No newline at end of file diff --git a/nh/4434455.json b/nh/4434455.json new file mode 100644 index 0000000000000000000000000000000000000000..1c785192955b69cbba10e09e79164e6a487f7321 --- /dev/null +++ b/nh/4434455.json @@ -0,0 +1 @@ +"{\"id\": \"4434455\", \"name\": \"The Hope Shoe Co. v. Advance Wood Heel Co.\", \"name_abbreviation\": \"Hope Shoe Co. v. Advance Wood Heel Co.\", \"decision_date\": \"1937-12-07\", \"docket_number\": \"\", \"first_page\": 178, \"last_page\": \"182\", \"citations\": \"89 N.H. 178\", \"volume\": \"89\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Supreme Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-10T21:07:23.826281+00:00\", \"provenance\": \"CAP\", \"judges\": \"All concurred.\", \"parties\": \"The Hope Shoe Co. v. Advance Wood Heel Co.\", \"head_matter\": \"Strafford,\\nDec. 7, 1937.\\nThe Hope Shoe Co. v. Advance Wood Heel Co.\\nGeorge R. Scammon and Walter M. Espovich (of Massachusetts), (Mr. Espovich orally), for the plaintiffs.\\nChester T. Woodbury, and Jacob W. Shinberg and John A. O\\u2019Ma-honey (both of Massachusetts), (Mr. O\\u2019Mahoney orally), for the defendant.\", \"word_count\": \"1677\", \"char_count\": \"9650\", \"text\": \"Page, J.\\nIt is understood that no question is raised as to the sufficiency of the evidence to sustain the referee's findings. The evidence as to title was not made a part of the record, and no contention as to its sufficiency was raised at any point in the proceedings.\\nThe real question for decision is whether, as a matter of law, the findings of the referee establish that title to the shoes rested, on November 19, 1929, in the plaintiffs or the Madian Shoe Company. The decision calls for an interpretation of the referee's report.\\nThe salient parts of the report appear to be the following: \\\"The Plaintiff claims an absolute ownership in this property as against the merchandise creditors of the Madian Shoe Company and alleges in support of its claim a verbal agreement entered into with the Madian Shoe Company . to the effect that the Plaintiff agreed to advance Madian his payroll and such other funds as he might require, and to generally finance his business in exchange for an agreement on his part to ship all shoes made at his place of business to the said plaintiff.\\\" After reviewing the evidence as to advances made by the plaintiffs to the Madian Company, the referee added: \\\"Mr. Madian states in effect that the Hope Shoe Company advanced the payroll and merchandise with the understanding that all of the output of the Madian Company would be shipped to them. This is directly in support of the contention of the plaintiff.\\\" We have supplied the italics.\\nAgain alluding to the financing furnished by the plaintiffs, the referee said: \\\"This continual financing, coupled with the fact that almost the entire output. . . went to the Plaintiff [the fact that four per cent of the product was sold to others was regarded by the Referee as a breach of contract], lends credence to the statement of the Plaintiff and of Madian that the agreement existed as alleged, and in view of these facts the Referee finds that such agreement did exist and was in existence at the time of the attachment of November 19, 1929.\\\" Again the italics are supplied.\\nNext in order the referee states that the defendant denies the existence of the agreement and claims that, if existent, it has no validity. \\\"This,\\\" remarked the referee, \\\"is largely a matter of law, and will be later considered. . As a groundwork to the legal questions,\\\" it was found that the plaintiffs and Madian both had knowledge that the forty cases of shoes attached were being made up. A part of these shoes, it was further found, were not upon special order, but were \\\"stock shoes\\\" which were being made, by the agreement of the plaintiffs and Madian, in order to use up material on hand. While this manufacture was in process, \\\"the checks from the Plaintiff continued to be mailed to the Madian Company.\\\"\\n\\\"The shoes,\\\" the referee continued, \\\"were admittedly in an unfinished condition. . . . This is also material as to ownership from a legal point of view, as the Defendant's claim in general is that the ownership in unfinished goods does not vest in the purchaser until the goods are finished.\\\" The referee stated that the defendant relied upon P. L., c. 166, s. 19, Rule 2, of the sale of goods act.\\nThis provision reads as follows: \\\"19. Intention. Unless a different intention appears, the. following are rules for ascertaining the intention of the parties as to the time at which the property in the goods is to pass to the buyer: . Rule 2. Non-Deliverable. Where there is a contract to sell specific goods and the seller is bound to do something to the goods, for the purpose of putting them in a deliverable state, the property does not pass until such thing be done.\\\"\\nThe referee ruled that this provision did \\\"not appear to apply to this case, as a different intention is plainly evident from the conduct of the parties throughout the entire transaction covering the period of several months.\\\" He also pointed out that there was no contract to sell these specific goods, \\\"but on the contrary a general agreement that all the products of the Madian Company were to be sold to the Plaintiff, as found by the Referee previously.\\\" We have supplied the italics.\\nThe report was recommitted for explanation of the apparent ambiguity caused by the use of the words \\\"shipped\\\" and \\\"sold\\\". In his amendment to the report, the referee found that by the word \\\"sold\\\" was intended no more than delivery under the terms of the agreement, \\\"under which the products of the Madian Company was to go to the Hope Company in exchange for finances furnished by the Hope Company during the process of manufacture.\\\" Clearly, therefore, the agreement was found not to be the ordinary contract for sale.\\nUp to this point the referee has made only one ruling of law\\u2014that the statute relied on by the defendant did not apply. This ruling was based upon a finding that the agreement (not one for sale, but for delivery) provided that all goods produced by the Madian Company should \\\"go\\\" to the plaintiff. Further he found that the parties had an intention, which was \\\"plainly evident\\\" from their conduct that the vesting of title to the unfinished goods should not be postponed to the time of their completion; but that they in fact had a \\\"different intention.\\\" This we take to be equivalent to a finding of intention that title to the materials should remain in the plaintiffs and that title to each increment of the goods in process should vest in the plaintiff as fast as the work progressed.\\nImmediately after the findings and the single ruling which we have summarized, appears the following: \\\"The Referee, therefore, rules in law against the contentions of the Defendant and that the title to the goods vested in the Plaintiff.\\\" The counsel for the plaintiffs has argued that the first clause of that sentence is a ruling and that the second clause is a finding of fact as to the intent of the parties. We think it clear, however, that the whole sentence states conclusions of law. Having already found the facts, the referee is now stating the consequence of the facts as matters of law. The facts found were that the parties agreed that the plaintiffs should have the whole product of the Madian factory, and that title to the unfinished goods should vest in them as the work progressed. The legal result was, as the referee ruled, that the goods were the property of the plaintiffs when the defendant attached them as the goods of the Madian Company.\\nJust before finding that the agreement existed as alleged, the referee remarked that it was \\\"fair to assume that the finance was not furnished gratuitously, or without a return for the money so advanced, whether it was for payrolls, merchandise, debts owed by the Madian Shoe Company, or for whatever purpose.\\\" In case of a general finding, all findings of special facts necessary to sustain it are to be presumed unless special findings indicate the contrary. Spaulding v. Mayo, 81 N. H. 85; Eleftherion v. Company, 84 N. H. 32, 35; Ahern v. Company, 88 N. H. 287. It is to be presumed, therefore, that the referee found that the materials used in manufacturing the shoes replevied were furnished by the plaintiffs and were their property.\\nWhere raw materials owned by one party are placed in the hands of another for manufacture, and the product is all to be delivered to the former, the title to the goods, in process and finished, depends upon the intention of the contracting parties. It is not always easy to ascertain that intention. Dittmar v. Norman, 118 Mass. 319, 323. That is particularly true when, as in the case at bar, there is no written agreement. The record before us discloses nothing to indicate conclusively that it was intended that the manufacturer should own the materials supplied. That was the fact, however, in the case last cited and another growing out of the same agreement, Laflin &c. Powder Co. v. Burkhardt, 97 U. S. 110, relied upon by the defendant. The same thing is true as to the other case cited by the defendant, Hauselt v. Harrison, 105 U. S. 401. In all three, the party advancing the funds for manufacture was clearly no more than a sales-agent of the manufacturer. The general finding of intention here made excludes that conclusion.\\nThe result reached by the referee is sustainable upon the theory of a bailment of raw materials for manufacture. Gleason v. Beers, 59 Vt. 581 (logs to be made into lumber); Johnson v. Allen, 70 Conn. 738 (grain to be ground and sold); First &c. Bank v. Schween, 127 Ill. 771 (milk to be made into butter and cheese); Sattler v. Hallock, 160 N. Y. 291 (farm produce to be pickled); Schenck v. Saunders, 13 Gray 37 (leather to be manufactured into shoes). It makes no difference if the manufacturer pays for the labor. In the case at bar, the plaintiffs appear to have paid for the labor. Even where the bailee for manufacture adds materials of his own, but those furnished by the bailor form the principal part of the total, the bailor acquires title by accession. Mack v. Snell, 140 N. Y. 193. The bailor of leather to be made into brogans has been held to be the owner and entitled, immediately upon the completion of the brogans, to be repossessed of the property. Mansfield v. Converse, 8 Allen 182.\\nThe result makes it unnecessary to consider the plaintiffs' exceptions to the admission of evidence.\\nJudgment for the plaintiffs.\\nAll concurred.\"}" \ No newline at end of file diff --git a/nh/4434862.json b/nh/4434862.json new file mode 100644 index 0000000000000000000000000000000000000000..bfcc28a0c7b3729ecf9176b69d2fedea7279e935 --- /dev/null +++ b/nh/4434862.json @@ -0,0 +1 @@ +"{\"id\": \"4434862\", \"name\": \"Amoskeag Trust Company & a. v. Trustees of Dartmouth College & a.\", \"name_abbreviation\": \"Amoskeag Trust Co. v. Trustees of Dartmouth College\", \"decision_date\": \"1938-06-21\", \"docket_number\": \"\", \"first_page\": 471, \"last_page\": \"476\", \"citations\": \"89 N.H. 471\", \"volume\": \"89\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Supreme Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-10T21:07:23.826281+00:00\", \"provenance\": \"CAP\", \"judges\": \"All concurred.\", \"parties\": \"Amoskeag Trust Company & a. v. Trustees of Dartmouth College & a.\", \"head_matter\": \"Hillsborough,\\nJune 21, 1938.\\nAmoskeag Trust Company & a. v. Trustees of Dartmouth College & a.\\nWarren, Wilson, McLaughlin & Wiggin (Mr. Wiggin orally), for the specific legatees.\\nMcLane, Davis & Carleton (Mr. Carleton orally), for the residuary legatee.\", \"word_count\": \"2025\", \"char_count\": \"11535\", \"text\": \"Woodbury, J.\\nThe question presented is one of local law (Williams v. State, 81 N. H. 341, 355; Edwards v. Slocum, 264 U. S. 61, 63), and the authorities in this state are unanimous to the effect that the federal estate tax, unless the will otherwise directs, \\\"is to be paid out of the estate and charged pro rata to each beneficiary.\\\" Fuller v. Gale, 78 N. H. 544, 546; Williams v. State, supra; Foster v. Farrand, 81 N. H. 448, 450.\\nCounsel for the specific legatees admit that these authorities are in point but suggest that we re-examine and overrule them for the reason that they are based upon inadequate and erroneous reasoning and are contrary to the overwhelming weight of authority elsewhere.\\nThe federal estate tax, (39 U. S. Stat. 756), was passed by Congress in September 1916, and less than two years later this court in Fuller v. Gale, supra, was called upon for the first time to consider the question here presented. In its opinion in that case the court did not indulge in any extended reasoning. It merely distinguished the federal estate tax from foreign inheritance taxes and announced its rule of pro rata distribution of the burden of the former among all the beneficiaries.\\n' Six years later in Williams v. State, 81 N. H. 341, 354, 355, the nature of the tax as one upon the \\\"interest which ceased by reason of the death,\\\" rather than as one \\\"upon succession and receipt of benefits under the law or the will\\\" was mentioned, but the result of the Fuller case was affirmed by interpreting the silence of.the testator on the subject of the incidence of this tax to indicate an intention upon his part that its burden should be borne as though he had died intestate, that is, that it \\\"should be prorated among the recipients of the testator's bounty.\\\" The case of Foster v. Farrand, 81 N. H. 448, decided six months after the Williams case, merely refers to the question as settled by the earlier decisions of the court.\\nThe cases from other jurisdictions, in so far as they have been cited to us by counsel or have come to our attention, do not proceed upon a theory of interpretation of the testator's intention from his silence; in fact in one of them this theory is expressly repudiated. Plunkett v. Company, 233 Mass. 471, 475. Instead they approach the problem from the standpoint of the nature of the tax, and the conclusion which they reach as to the incidence of its burden is contrary to that reached by the court of this state.\\nThe leading case among the authorities in this latter group is Young Men's Christian Association v. Davis, 264 U. S. 47. In relation to the federal estate tax the Supreme Court of the United States in that case said: \\\"What was being imposed here was an excise upon the transfer of an estate upon the death of the owner. It was not a tax upon succession and receipt of benefits under the law or the will. It was death duties as distinguished from a legacy or succession tax. What this law taxes is not the interest to which the legatees and devisees succeeded upon death, but the interest which ceased by reason of the death.\\\" In view of the binding effect upon the state courts of this interpretation of the federal tax, (Gehlen v. Patterson, 83 N. H. 328, 330, and cases cited), and in view of the fact that this tax is payable by the executor out of the assets of the estate before distribution, the courts elsewhere have held that it constitutes a charge against the estate which, like other such charges and expenses of administration, is payable out of the residue. Plunkett v. Company, 233 Mass. 471; Corbin v. Townshend, 92 Conn. 501, 505; Matter of Hamlin, 226 N. Y. 407; Matter of Oakes, 248 N. Y. 280; People v. Company, 289 Ill. 475; Hepburn v. Winthrop, 83 Fed. (2d.) 566; Brown v. Hodge, 198 Ia. 373.\\nWe do not believe that the reasoning of these latter cases can be successfully assailed. On the other hand, the theory upon which this court has proceded in the past is open to serious criticism. In the first place the inference of intestacy as to the payment of this tax which was drawn from the testator's silence in the Williams case is opposed to the presumption against partial intestacy (Clyde v. Lake, 78 N. H. 322; Kennard v. Kennard, 63 N. H. 303), and in the second place it fails to take into account the statement in Kingsbury v. Bazeley, 75 N. H. 13, 17, to the effect that \\\"In a gift of a pecuniary. legacy of a certain amount, the apparent intention is to benefit the legatee to the full amount named.\\\" Furthermore, \\\"The benefaction conferred by the residuary clause of a will is only of that which remains after all paramount claims upon the estate of the testator are satisfied,\\\" (Plunkett v. Company, supra) and, as appears above, the federal estate tax is, by the law which created it, made a \\\"paramount\\\" claim against the estate.\\nUpon analysis it seems to us that the testator's silence gives no clear indication of his intention in respect to the incidence of the burden of the tax. Considering the will as a whole it seems rather more probable than not that the testator wished his specific legatees to receive the actual amounts which he gave them, less such taxes as might be imposed upon them as recipients of his bounty, (Kingsbury v. Bazeley, supra, 16), and that he wished his residuary legatee to receive whatever might remain thereafter and after the payment of his debts, the expenses of administration, and of any other charges which the law might impose upon his estate before its transfer. At least, the inference of intention drawn from the silence of the testator in the Williams case is not more probable than the contrary inferences mentioned above, and it follows that the testator's silence was ambiguous and his intention speculative. The rule of the Williams case and of the others like it in this jurisdiction is therefore without adequate foundation and unsound.\\nThe question remains, however, as to whether we should overrule our earlier decisions or await possible future legislation upon the subject.\\nThe doctrine of stare decisis is not one to be either rigidly applied or blindly followed. So used, the doctrine would nullify that basic principle of the common law which permits it to grow and develop to meet new and changing social conditions and would soon render the law inelastic, archaic and useless to serve the needs of a dynamic community. The doctrine of stare decisis is a brake upon legal change to be applied in the interest of continuity. It should not be applied so sparingly as to destroy the usefulness of judicial decisions as precedents, but, on the other hand, neither should it be used so freely as in every case to render inviolable those prior decisions of this court which we consider to be erroneous. The doctrine is not a barrier which prevents us from correcting prior judicial errors; it prevents changes only when in our judgment it is better to suffer an error to persist than it is to undergo the hardships which would result from its correction. The question of when the doctrine should be applied and when not is fundamentally one for the discretion of this court. Balancing the good which may be expected to follow from the judicial change of our former rule against the disadvantages which such conduct on our part may entail, we feel that in the situation presented the doctrine of stare decisis should not be applied.\\nThe decisions elsewhere are in agreement upon a rule different from that which heretofore obtained in this jurisdiction and conformity with them has obvious features of desirability. The announcement by this court of a new rule of law governing the question presented is as likely to come to the attention of testators or of counsel as would such a rule when announced by the legislature. In respect to questions of this sort there is no superior virtue in a legislative change over a judicial one on the score of publicity.\\nNeither is this a situation in which judicial change will operate to destroy or impair established rights. Wills are ambulatory instruments. Testators who have known of and acted upon the former rule may reasonably be supposed to learn of its change and they may govern themselves accordingly because wills do not take effect until the death of the testator. Upon consideration of all the circumstances we deem it more advisable to correct our earlier rule than to perpetuate its error; and consequently the cases of Fuller v. Gale, Williams v. State, and Foster v. Farrand are overruled in so far as they hold that in the absence of testamentary directions the federal estate tax must be charged pro rata against all the beneficiaries rather than solely against the residuary legatee.\\nExpressed testamentary instructions to the executor as to the incidence of the burden of this and other taxes are everywhere regarded as controlling and counsel for the residuary legatee argues that an inference of the testator's intention that this tax be borne pro rata by all the legatees may be drawn from the fact that in this case the testator was a member of the bar of this state and that his will was drawn after the above New Hampshire decisions were rendered. There is nothing to indicate that the testator in fact knew of these decisions or acted upon them. All that appears is that he may have known and acted upon the rule which they announced and it would be pure conjecture to say that his silence was motivated by his knowledge thereof. The above argument is akin to that relied upon in William v. State which we now reject as unsound.\\nThe further argument in behalf of the residuary legatee to the effect that the rule which we now adopt operates in this case to impose a tax upon a charity was fully answered in Young Men's Christian Association v. Davis, 264 U. S. 47, 51. In that case the residuary legatee was a charity and the Ohio court had held that the federal estate tax was payable out of the residuary estate. The Supreme Court of the United States in that case said: \\\"The donees of the altruistic gifts profit much by the deduction made under subdivision (3) even though they do receive less by the amount of this tax. Had subdivision (3) not been in the statute, the tax would have been much heavier, measured by a higher percentage of the value of the whole estate, including their gifts. It is hardly true to say that, under the judgment of the Ohio courts, these residuary gifts are taxed. The gifts are and were intended by the testator to be, indefinite in amount, and to be what was left after paying funeral expenses, attorneys' fees, executor's compensation, debts of the decedent, and taxes. These donees do not pay the taxes any more than they pay the funeral expenses, the lawyers, the executors and the testator's debts.\\\"\\nThe question of the incidence of the burden of the state inheritance tax (P. L. c. 72), was transferred, but it has been neither briefed nor argued and we understand that it has been waived. This state tax is levied upon the interest of the legatee or distributee (Kingsbury v. Bazeley, 75 N. H. 13, 16), not upon the estate of the decedent. It is a tax of a nature different from the federal estate tax and nothing herein contained is intended to affect in any way the incidence of its burden.\\nCase discharged.\\nAll concurred.\"}" \ No newline at end of file diff --git a/nh/4441426.json b/nh/4441426.json new file mode 100644 index 0000000000000000000000000000000000000000..3c4c4526e190480f73ed648fe5248334bb5abedf --- /dev/null +++ b/nh/4441426.json @@ -0,0 +1 @@ +"{\"id\": \"4441426\", \"name\": \"State of New Hampshire v. Charles W. Greenwood\", \"name_abbreviation\": \"State v. Greenwood\", \"decision_date\": \"1975-03-31\", \"docket_number\": \"No. 6824\", \"first_page\": 117, \"last_page\": \"120\", \"citations\": \"115 N.H. 117\", \"volume\": \"115\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Supreme Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-10T17:25:43.934256+00:00\", \"provenance\": \"CAP\", \"judges\": \"Grimes, J., concurred in the result; the others concurred.\", \"parties\": \"State of New Hampshire v. Charles W. Greenwood\", \"head_matter\": \"Nashua District Court\\nNo. 6824\\nState of New Hampshire v. Charles W. Greenwood\\nMarch 31, 1975\\nWarren B. Rudman, attorney general, and Robert V. Johnson II, assistant attorney general (Mr. Johnson orally), for the State.\\nProlman & Holland (Mr. Francis G. Holland orally) for the defendant.\", \"word_count\": \"941\", \"char_count\": \"5588\", \"text\": \"Lampron, J.\\nThe sole issue is whether a district court may suspend all or any part of the provision of RSA 262-A:62 (Supp. 1973) which states that upon conviction of operating a motor vehicle while under the influence of intoxicating liquor the defendant's 'license \\\"shall be revoked for a period of sixty days and at the discretion of the court for a period not to exceed two years.\\\"\\nOn December 13, 1973, following trial, the defendant was found guilty of that offense by Harkaway, J. Prior to sentencing, the defendant, upon the ground of hardship, sought to have suspended any imposition of a loss of license. His motion was denied as being \\\"beyond the authority of the District Court\\\" and the issue of law was transferred to this court. Defendant maintains that our opinion in State v. Burroughs, 113 N.H. 21, 300 A.2d 315 (1973), sustains his position that the district court has such authority.\\nRSA 262-A:62 (Supp. 1972) in force at the time of the offense, October 23, 1973, provided that upon a first conviction the defendant \\\"may be imprisoned for not less that two days, nor more than six months, which may be intermittent or weekend days and shall be fined, not less than one hundred dollars nor more than five hundred dollars; his license shall be revoked for a period of sixty days and at the discretion of the court for a period not to exceed two years.\\\" Although the part relating to the sentence was changed effective October 31, 1973 (RSA 262-A:62 (Supp. 1973)), the revocation of license provision remained unchanged.\\nState v. Burroughs supra dealt with the sentencing only. We held that in exercising that function it has always been assumed since the State's earliest times '\\\"that courts had the power to suspend either the imposition or the execution of a criminal sentence.'\\\" Id. at 22, 300 A.2d at 316. We further held that, when the legislature has sought to prevent the exercise of the judicial privilege of suspension and to impose a mandatory sentence, it has so provided, and must do so, in language which clearly manifests its intention that the sentence is to be mandatorily imposed.\\nProvision for suspension of a license for violating a regulation pertaining to the operation of a motor vehicle was first enacted by Laws 1905, 86:10. The court was to notify the seci'etary of state of such a conviction giving \\\"the number, or mark of the machine and license, and shall transmit other information obtained at the hearing\\\". The secretary of state was charged with the revocation of the license and its return when the circumstances required it. Laws 1921, 119:18 provided that a conviction of operating a motor vehicle while under the influence of intoxicating liquor \\\"shall be reported forthwith by the court. . . to the commissioner [of motor vehicles] who shall revoke immediately the license of the person so convicted . . Laws 1955, 282:1 provided, as presently, that defendant's \\\"license shall be revoked for a period of sixty days and at the discretion of the court for a period not to exceed two years.\\\"\\nThis court held in State v. Wood, 98 N.H. 418, 420, 101 A.2d 774, 775 (1953), that \\\"[t]he act of suspending and returning the license\\\" is merely administrative. See 60 C.J.S. Motor Vehicles \\u00a7 164:1 (1969, Supp. 1974). It is not part of the criminal punishment. State v. Despres, 107 N.H. 297, 220 A.2d 758 (1966); State v. Bowles, 113 N.H. 571, 574, 311 A.2d 300, 302 (1973). This conclusion is supported by the history of that part of RSA 262-A:62 (Supp. 1973). The administrative function of revoking a license differs materially from the judicial function of imposing a fine or a sentence which was the basis of the holding in State v. Burroughs, 113 N.H. 21, 300 A.2d 315 (1973). Consequently, an identical interpretation in regard to this administrative function of revoking a license is not required.\\nThe latter provision must be given the meaning which will best carry out its purpose. 2A J. Sutherland, Statutory Construction \\u00a7 57.04 (4th ed. C. Sands 1973). By its express wording, the discretion of the court is limited to determining the length of the period of revocation between sixty days and two years. This interpretation is confirmed by the terms of section 64 of the same chapter which provides that: \\\"Upon a conviction the court shall report to the director and shall immediately revoke the license of the person so convicted.\\\" RSA 262-A:64-a (Supp. 1973) provides that if an appeal is taken from such a conviction the court \\\"shall forthwith revoke the license of such person.\\\" We hold that the legislature has clearly manifested its intent that a person convicted of driving a motor vehicle under the influence o\\u00ed' intoxicating liquor shall be prevented from operating on the highways for a period of at least sixty days. See Daneault v. Clarke, 113 N.H. 481, 484, 309 A.2d 884, 885-86 (1973). We further hold that the district court in performing this administrative function, as distinguished from its judicial function of imposing a fine or a sentence, must revoke the convicted operator's license for a period of at least sixty days. The district court properly ruled that it was beyond its authority to suspend the revocation of license mandate of RSA ch. 262-A.\\nRemanded.\\nGrimes, J., concurred in the result; the others concurred.\"}" \ No newline at end of file diff --git a/nh/4443790.json b/nh/4443790.json new file mode 100644 index 0000000000000000000000000000000000000000..e033849fa557f70846062c66323e8f1887151f6d --- /dev/null +++ b/nh/4443790.json @@ -0,0 +1 @@ +"{\"id\": \"4443790\", \"name\": \"Armand A. Archambault v. Benjamin C. Adams, Commissioner, & a.\", \"name_abbreviation\": \"Archambault v. Adams\", \"decision_date\": \"1978-09-27\", \"docket_number\": \"No. 78-054\", \"first_page\": 634, \"last_page\": \"639\", \"citations\": \"118 N.H. 634\", \"volume\": \"118\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Supreme Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-11T00:20:11.932391+00:00\", \"provenance\": \"CAP\", \"judges\": \"BROCK, J., did not sit; the others concurred.\", \"parties\": \"Armand A. Archambault v. Benjamin C. Adams, Commissioner, & a.\", \"head_matter\": \"Hillsborough\\nNo. 78-054\\nArmand A. Archambault v. Benjamin C. Adams, Commissioner, & a.\\nSeptember 27, 1978\\nWiggin & Nourie, of Manchester (Jon Groetzinger, Jr., orally), for the plaintiff.\\nEdward F. Smith, Robert L. Hermann, Jr., and Andre J. Barbeau (Mr. Hermann orally), for the Commission.\", \"word_count\": \"1858\", \"char_count\": \"11370\", \"text\": \"Lampron, C.J.\\nThis is an unemployment compensation appeal pursuant to RSA 282:5. The plaintiff was employed by the United States Postal Service or its predecessor from 1946 until he retired on February 5, 1973. The Postal Service classified his reason for leaving as \\\"Retirement-Disability.\\\" The plaintiff has claimed throughout this case that his disability, i.e., a heart ailment, is job-related. He has received fifty percent of his base pay during his retirement. Shortly after the plaintiff retired, he visited the Manchester office of the department of employment security. There was an issue at the trial below of whether the plaintiff actually applied for unemployment compensation during his visit to the office. The lower court found that the plaintiff was excused from complying with the statutory filing requirements, and the court treated the case as if the plaintiff had filed. There has been no appeal from this ruling of the lower court, so we will assume that the plaintiff filed for unemployment compensation benefits on February 20, 1973, and that the benefits were denied.\\nThe plaintiff then waited over a full year before filing again for benefits on June 3, 1974, and every week thereafter. He was denied benefits because both the certifying officer and the appeal tribunal of the department of employment security determined that he was disqualified for two reasons: (1) his retirement from the Postal Service was voluntary, D.E.S. Regulation 32 and RSA 282:4 K; and (2) he did not have annual earnings in two calendar quarters in 1973 as required by RSA 282:2 B(l). The plaintiff thereafter appealed to the Superior Court (Dunfey, J.), which affirm\\u00e9d the disqualification, and reserved and transferred all questions of law raised by plaintiff's exceptions. For the reasons hereinafter stated, we affirm the lower court's rulings and dismiss the appeal.\\nThe time period for which the plaintiff originally filed a claim for unemployment benefits is lengthy, and the manner in which the benefit year runs complicates the analysis. To understand the exact time periods and issues involved in this case, it is necessary to briefly explain the operation of the \\\"benefit years\\\" and the regulations involved. Reference is also made to Harkeem v. New Hampshire Department of Employment Security, 115 N.H. 658, 659, 348 A.2d 711, 712 (1975), where a similar explanation is given. The benefit year for unemployment compensation runs from April 1 to March 31. RSA 282:1 C. A claimant's eligibility during a benefit year is determined by his annual earnings, as defined in RSA 282:1 0(2) (currently at RSA 282:1 O (Supp. 1977)), in the preceding calendar year. At the time of the events in this case, a claimant must have earned not less than $100 in each of two calendar quarters of the preceding calendar year, and must have earned a minimum of $600 in the preceding calendar year. RSA 282:2 B(l). See RSA 282:2 B(1) (Supp. 1977) for the current requirements of $300 in two quarters and a minimum of $1,200.\\nA claimant is disqualified from receiving benefits \\\"[f] or any week in or subsequent to which an individual becomes unemployed due to retirement or superannuation except in accordance with the regulations of the commissioner.\\\" RSA 282:4 K. Regulation 32 prescribes the test for determining when retirement will disqualify a claimant from benefits. Regulation 32 A(1) states: \\\"An individual who but for his own act, condition or election at the time of retirement could have continued in the employ of the employer shall be deemed to have voluntarily retired\\\" is disqualified from receiving benefits unless the disqualification is removed under the doctrine espoused in Harkeem v. New Hampshire Department of Employment Security supra. Regulation 32 B(1) states: \\\"An individual shall be deemed to have involuntarily retired if at the time of retirement he was prohibited by the employer, due to (i) a negotiated contract, (ii) a company policy, (iii) or otherwise, from continuing in the employ of the employer by reason of his age.\\\" An individual who involuntarily retires is entitled to benefits under Regulation 32 B(2) for the twenty-seven weeks following the retirement, after which his entitlement is determined in accordance with Regulation 32 A(2). This regulation provides as follows: \\\"Annual earnings earned subsequent to retirement may be used in the applicable benefit year, if as to all other provisions of the law, the individual is eligible and not disqualified.\\\"\\nThe overall time period involved in the plaintiff's claim can be divided as follows:\\n1. February 5, 1973 \\u2014 March 31, 1973: This is the period from when the plaintiff retired until the beginning of the next benefit year. The period includes the first eight weeks of the twenty-seven-week entitlement period under Regulation 32 B(2).\\n2. April 1, 1973 \\u2014 March 31,1974: This is the 1973 benefit year, and includes the last nineteen weeks of the twenty-seven-week entitlement period under Regulation 32 B(2).\\n3. April 1, 1974 \\u2014 March 31,1975: This is the 1974 benefit year.\\nThe plaintiff did not claim at the trial below that he was entitled to any benefits for the first time period. Also, at the oral argument the plaintiff waived any claim to the third time period and all of the second time period except that portion which is part of the twenty-seven-week entitlement period. This therefore reduces the plaintiff's claim to a period of nineteen weeks of benefits beginning on April 1, 1973.\\nThe plaintiff's first contention is that the trial court erred in ruling that he voluntarily retired, because all parties agreed that the retirement was involuntary and no evidence was presented to support a finding of voluntary retirement. In support of his argument, the plaintiff points to various statements in the trial transcript made by the defendant's counsel. These statements, taken out of context, could be interpreted as concessions by the defendant's counsel that the plaintiff did indeed retire involuntarily. However, the record must be viewed in its entirety, and we do not believe that such a view supports the plaintiff's argument. First, the defendant's answer to the plaintiff's petition made the plaintiff's retirement an issue at the trial. Second, there are statements in the transcript which show that the defendant's counsel assumed that the type of retirement was an issue in the case. For example, at one point in the trial the defendant's counsel stated to the court, \\\"The entire question of whether he is a voluntary or involuntary retiree is before the court on this appeal proceeding.\\\" Third, the court devoted a considerable portion of its opinion to the retirement issue. We do not believe that the trial court would have addressed this question if, as the plaintiff contends, it was obviously not an issue in the case. We must admit that it is sometimes hard to reconstruct the events at a trial from the cold face of a transcript, but all of the indications from the record show that the defendant did not concede that the plaintiff involuntarily retired.\\nWe also do not agree that there is no evidence to support the trial court's findings. The plaintiff apparently is not questioning the court's interpretation of Regulation 32, but is claiming only that no evidence was introduced by either party that could form a basis for a ruling of voluntary retirement. To the contrary, there is evidence to support a finding that the plaintiff's retirement did not come about as a result of his age, as required by the regulation, but instead was a result of an election made by the plaintiff because of his physical condition. The trial court had before it the certified record from the appeal tribunal of the defendant department. This record was evidence which could properly be considered by the court. RSA 282:5 G(3). The record contains statements by the plaintiff that he had applied for the retirement, and it could be found that he elected to retire. In this jurisdiction the findings of the trial court will not be set aside if they could reasonably be made on the evidence. Wheeler v. State, 115 N.H. 347, 350, 341 A.2d 777, 780 (1975). We hold that the trial court's findings are supported by the evidence.\\nThe plaintiff's second argument is that, even assuming a voluntary departure, he left with good cause attributable to his employer. The plaintiff contends that when an employee retires because of a job-related disability, this constitutes termination for good cause attributable to the employer and the employee should be allowed to recover unemployment benefits. The plaintiff bases his argument on Regulation 21, entitled \\\"Voluntary Quit Without Good Cause,\\\" which provides in part:\\nAn individual shall be considered to have left his work voluntarily without good cause if of his own choice or volition he terminates the employee-employer relationship for a reason which is not attributable to the employer.\\nThis regulation and RSA 282:4 A(l) therefore provide that if an employee quits with good cause he is still entitled to benefits.\\nThe plaintiff is attempting to create a hybrid regulation by crossing Regulations 21 and 32. The two regulations must, however be considered separately in their operation. Regulation 21 deals with a voluntary quit, whereas Regulation 32 deals with retirement. The plaintiff retired from the Postal Service and is receiving fifty percent of his salary; he did not quit. Regulation 21 is not therefore applicable, and there is no need to determine whether the plaintiff's retirement was with good cause because it is irrelevant to the operation of Regulation 32 and RSA 282:4 K.\\nPlaintiff's final argument is that his disqualification because of voluntary retirement was lifted by a subsequent return to work per Harkeem v. New Hampshire Department of Employment Security supra. The subsequent employment that the plaintiff refers to is his election to the State legislature to serve in a Special Session that was to start in January 1974, for which he was paid $200 in October 1973.\\nThe plaintiff is not arguing that the income he received from his term as a legislator should be used as a basis for future benefits, but only that his legislative work should be sufficient to lift the disqualification of the voluntary retirement. The plaintiff believes that Harkeem somehow supports his argument. We are of the opinion, however, that Harkeem does not apply to this case, because the plaintiff's employment subsequent to his retirement is excluded from the definition of employment under RSA 282:1 H(4)(q). See also RSA 98:2(a). In Harkeem the subsequent employment was not excluded from the definition of employment. We do not see any validity in the plaintiff's argument that any subsequent work should lift the disqualification of a voluntary retirement. To hold as the plaintiff requests would be to circumscribe the legislative scheme of providing benefits only to those individuals who have not voluntarily elected to be unemployed.\\nAppeal dismissed.\\nBROCK, J., did not sit; the others concurred.\"}" \ No newline at end of file diff --git a/nh/4444416.json b/nh/4444416.json new file mode 100644 index 0000000000000000000000000000000000000000..56073350b497a33f44b510a41b61954449f19e95 --- /dev/null +++ b/nh/4444416.json @@ -0,0 +1 @@ +"{\"id\": \"4444416\", \"name\": \"The State of New Hampshire v. Court Dorsey\", \"name_abbreviation\": \"State v. Dorsey\", \"decision_date\": \"1978-12-06\", \"docket_number\": \"No. 78-154\", \"first_page\": 844, \"last_page\": \"848\", \"citations\": \"118 N.H. 844\", \"volume\": \"118\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Supreme Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-11T00:20:11.932391+00:00\", \"provenance\": \"CAP\", \"judges\": \"BOIS, J., did not sit; the others concurred.\", \"parties\": \"The State of New Hampshire v. Court Dorsey\", \"head_matter\": \"Rockingham\\nNo. 78-154\\nThe State of New Hampshire v. Court Dorsey\\nDecember 6, 1978\\nThomas D. Rath, attorney general, and John C. Boeckeler, Richard B. McNamara, Richard B. Michaud and Peter W. Heed, assistant attorneys general, and Peter W. Mosseau, attorney, by brief, for the State.\\nCourt Dorsey, by brief and orally, pro se.\\nH. Jonathan Meyer, of Concord, by brief and orally, for Civil Liberties Union, amicus curiae.\", \"word_count\": \"1346\", \"char_count\": \"7947\", \"text\": \"Grimes, J.\\nThe issue we decide in this criminal trespass case is whether the trial court erred in ruling that the statutory defense of competing harms, RSA 627:3, is not available to one charged with criminal trespass for occupying the construction site of a nuclear power plant. We hold that no error was committed.\\nDefendant was arrested during a mass occupation of the construction site of the Seabrook Nuclear Power Plant. He was charged with criminal trespass, RSA 635:2, elected to represent himself, and was tried before a jury, and was convicted. His exceptions were transferred by Mullavey, J.\\nPrior to trial the defendant gave notice pursuant to Superior Court Rule 102 that he intended to rely upon the competing harms statute, RSA 627:3, as a defense. At trial the court ruled that the competing harms statute would not be permitted as a defense and noted defendant's exception. The court also ruled, however, that defendant could introduce evidence to show that he did not knowingly violate the trespass statute; that, said the court, \\\"[is] the sole issue upon which that [the competing harms] statute may be used.\\\" The defendant sought to introduce evidence bearing on this defense and on the danger of nuclear power, but it was excluded by the court. Defendant read the statute to the jury during his final argument, and stated that he relied on it when he entered the site and therefore did not know he was breaking the law.\\nThe trial court was correct in ruling that the competing harms defense did not apply to this case. RSA 627:3 I reads in part as follows:\\nConduct which the actor believes to be necessary to avoid harm to himself or another is justifiable if the desirability and urgency of avoiding such harm outweigh, according to ordinary standards of reasonableness, the harm sought to be prevented by the statute defining the offense charged. . . .\\nIt establishes a statutory defense akin to the common-law defense of necessity. See Aldrich v. Wright, 53 N.H. 398 (1873); State v. Jackson, 71 N.H. 552, 53 A. 1021 (1902). These and other early cases elsewhere deal with simple situations, such as killing mink out of season to protect valuable geese, and keeping a child from school without permission because of serious illness. They, like the classic situations contained in the comments to RSA 627:3, relate to factual matters that laymen sitting as a jury have the competence to decide. They deal with dangers that the average person can recognize and about which there can be no dispute.\\nRSA 627:3 \\\"is based largely on N.Y. \\u00a7 35.05(a) and states what the Model Penal Code calls the 'choice of evils' doctrine.\\\" Report of the Commission to Recommend Codification of Criminal Laws \\u00a7 572:3, at 19 (1969).\\nThe pertinent comment to the Model Penal Code states that for the defense to be available, the issue of competing values must not have been foreclosed by a deliberate legislative choice. Model Penal Code \\u00a7 3.-2, Comment No. 1 (Tent. Draft No. 8,1958). In the context of the present dispute, however, both the legislature of the State and the Congress of the United States have made deliberate choices regarding nuclear power. See, e.g., RSA ch. 162-B; 42 U.S.C. 2011 (1970). RSA ch. 162-H established an Energy Facility Evaluation Committee to determine, among other things, whether any proposed site and facility will \\\"unduly interfere with . . the public health and safety.\\\" RSA 162-H.-9 1(a). Section 1 of RSA ch. 162-H mandates that \\\"undue delay in construction of any needed facilities be avoided.\\\" Having spoken so forcefully in support of nuclear power, it is inconceivable that the legislature would intend that nuclear power be considered such a harm as to justify individuals in breaking the law. We are confident that it was not intended that such matters be included within the scope of RSA 627:3.\\nNor were matters of this sort contemplated under the common-law defense of necessity. The common-law defense dealt with imminent dangers from obvious and generally recognized harms. It did not deal with nonimminent or debatable harms; nor did it deal with activities that the legislative branch of government had expressly sanctioned and found not to be harms. See G. Williams, Criminal Law: The General Part \\u00a7 232, at 729 (2d ed. 1961) and cases cited therein. To allow nuclear power plants to be considered a danger or harm within the meaning of that defense either at common law or under the statute would require lay jurors to determine in individual cases matters of State and national policy in a very technical field. Competing factions would produce extensive expert testimony on the danger or lack of danger of nuclear power plants, and jurors in each case would then be asked to decide issues already determined by the legislature. The competing harms statute is intended to deal only with harms that are readily apparent and recognizable to the average juror.\\nDefendant and others who oppose nuclear power have other lawful means of protesting nuclear power; therefore, they are not justified in breaking the law. LaFave and Scott, Criminal Law \\u00a7 50, at 387 (1972). The act of criminal trespass was a deliberate and calculated choice and not an act that was urgently necessary to avoid a clear and imminent danger. The matter of the Seabrook Nuclear Power Plant has been before the regulatory agencies and the courts of both the United States and this State with a full opportunity for the opponents of nuclear power plant construction to be heard. Opponents still have the right to try to induce the people's representatives in Congress and the legislature to change the statutes. The fact that their efforts so far have failed does not make a case of necessity.\\nWe have reviewed numerous cases and other sources with regard to the common-law defense of necessity and the statutory defense of competing harms. It would serve no purpose to review them here. It is enough to say that having done so, we hold that the defense of competing harms is not available in this State in the circumstances of this case. Defendant had no constitutional or statutory right to have it considered by the jury.\\nNothing in this opinion should be construed as favoring or not favoring nuclear power. We deal only with the law as it relates to the defense relied upon. Nor do we pass upon the motives of the defendant. Good motives are not a defense to the commission of crime, except in a case of emergency not present here.\\nThe court in its instruction told the jury that the competing harms statute applied only so far as defendant denied he acted .knowingly, and that \\\"defendant's conduct can be justified or excused only if he acted in a sense of urgency to avoid an imminent danger, and this is to be determined in accordance with the ordinary standards of reasonableness.\\\" The defendant took no exceptions to the court's charge although he was asked specifically if he found \\\"any fault with the charge.\\\" For that reason he cannot now complain about the instruction. State v. Floyd, 116 N.H. 632, 365 A.2d 738 (1976).\\nMoreover, by allowing defendant this backdoor use of the competing harms statute, the court gave him the benefit of a defense to which he was not entitled. In any event, we find no error in the use of the term \\\"imminent danger.\\\"\\nDefendant not only failed to except to his sentence or to the other portion of the charge, but he is foreclosed by the decision in State v. Wentworth, decided this date.\\nException overruled.\\nBOIS, J., did not sit; the others concurred.\"}" \ No newline at end of file diff --git a/nh/4444539.json b/nh/4444539.json new file mode 100644 index 0000000000000000000000000000000000000000..b413cc2e82f1d1ebd9c6487c35b82d3cfee6f93b --- /dev/null +++ b/nh/4444539.json @@ -0,0 +1 @@ +"{\"id\": \"4444539\", \"name\": \"The State of New Hampshire v. William Belkner, Jaan Laaman, Richard Dunn\", \"name_abbreviation\": \"State v. Belkner\", \"decision_date\": \"1977-05-31\", \"docket_number\": \"No. 7643; No. 7644; No. 7645\", \"first_page\": 462, \"last_page\": \"473\", \"citations\": \"117 N.H. 462\", \"volume\": \"117\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Supreme Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-11T00:34:22.124830+00:00\", \"provenance\": \"CAP\", \"judges\": \"All concurred.\", \"parties\": \"The State of New Hampshire v. William Belkner, Jaan Laaman, Richard Dunn\", \"head_matter\": \"Merrimack\\nNo. 7643\\nNo. 7644\\nNo. 7645\\nThe State of New Hampshire v. William Belkner, Jaan Laaman, Richard Dunn\\nMay 31, 1977\\nDavid H. Souter, attorney general, and- James L. Kruse, assistant attorney general {Mr. Kruse orally), for the state.\\nJohn C. Emery, of Manchester, by brief and orally, for defendant Belkner.\\nWilliam H. Kelley and John Czecuik, of Manchester {Mr. Czecuik orally), for defendant Laaman.\\nJ. Gilbert Upton, of Concord, by brief and orally, for defendant Bunn.\", \"word_count\": \"3526\", \"char_count\": \"20576\", \"text\": \"Grimes, J.\\nThese appeals arise out of the Christmas Day 1975 riot at the New Hampshire State Prison (hereinafter \\\"prison\\\"). Defendants were all tried by jury and convicted of riot as a class B felony pursuant to RSA 644:1 1(a) and RSA 644:1 IV.\\nDefendants raise a multitude of issues claiming that they did not receive a fair trial. All questions of law were reserved and transferred by Keller, C.J. For purposes of discussion, these issues are grouped in the following categories: (1) motions to quash and sever; (2) admissibility of Belkner's conversation with inmate West; (8) motions for mistrial; (4) argument and instructions; (5) new trial and motions to dismiss.\\nThe following facts could be found from testimony given at trial. On Christmas Day in 1975 there was minimal staffing at the prison, a fact generally known by the inmates. The inmates arrived five minutes earlier than usual for lunch, smoked at lunch contrary to prison rules and normal routine and sat in locations they did not normally sit in. Dunn and Laaman sat near the front of the dining hall near the door leading to the cell block, contrary to their regular practice. The inmates remained in the dining area upon finishing their lunches rather than returning to their cells.\\nEarly in the meal Dunn told inmates surrounding him to be sure the door to the cell block could not be locked. It was generally known by the inmates that when there was trouble the door to the cell block was locked and tear gas was fired into the dining area. Bonin, the officer in charge, did not have access to the cell block as the doorway was blocked by several inmates.\\nNear the end of the dining period, Dunn rose and spoke to Bonin and the 146 inmates present. Dunn complained that the inmates wanted the prisoners in punitive status to come out and have Christmas dinner. He further stated that he was fed up with the prison rules and that the inmates would not leave the dining room until the warden came down to speak with them. These and other messages were relayed to the warden by Officer Rice, a guard.\\nDunn made several more speeches to the crowd conferring on occasion with Laaman. The inmates responded to these speeches with loud roaring and banging. Several inmates made taunting remarks to the guards present. Officer Rice returned with messages from the warden. The warden stated that he had arranged for the prisoners in punitive status to have Christmas dinner, that the inmates were to return to their cells, and that the warden would not come to the dining room. Dunn responded that this was not good enough and they wanted the warden down. The warden relayed a message to the effect that he would speak with respesentatives of the population but that he would not come to the dining area. The warden suggested Dunn and Laaman as representatives as they had been identified to him as the leaders. Laaman hollered to Dunn that if he went up to see the warden he would probably not be coming back. Dunn then turned to the crowd and asked if they wanted him to go up alone to which they responded in the negative with more shouting and banging.\\nAt this point the atmosphere was very excited and Bonin feared for himself and the staff in the kitchen. Various inmates had threatened guards with physical violence. Bonin requested permission from Dunn to leave with the kitchen staff. Dunn said they could go. As Bonin and the staff filed out between lines of inmates, the inmates hummed the death march. Before they reached the doorway, a loud crash was heard in the cell block and inmates surged toward the door. A large construction staging had been pulled down. A guard and the prison steward were hit and injured. Tear gas was then fired into the area and the inmates were eventually evacuated. Extensive property damage was done to the cell block and kitchen from fires that had been started in the officers' cabinets.\\nI. Motions to Quash and Sever\\nDefendant Belkner first contends that the trial court erred in denying his motion to quash the indictment against him. Belkner alleges that the indictment is insufficient in that it charges him with more than one offense and he could not properly assess the charges against him.\\nThe indictment against Belkner precisely tracks the language of RSA 644:1 1(a). In addition it supplies underlying factual allegations so that Belkner was specifically apprised of his alleged offensive conduct. Belkner's confusion apparently arises out of language in the indictment relating to RSA 644:1 IV. RSA 644:1 IV raises the status of riot as defined by RSA 644:1 from a misdemeanor to a class B felony when personal injury or property damage results from the conduct.\\nRSA 644:1 IV is not an offense separate from RSA 644:1 I, but rather is an aggravated status of that same offense. The indictment specified sufficient facts so that defendant was apprised that he was being indicted for riot as a class B felony. The indictment informed Belkner with sufficient definiteness to enable him to prepare a defense and therefore the court did not err in denying Belkner's motion to quash. State v. O'Neill, 105 N.H. 15, 191 A.2d 528 (1963); State v. Hoyt, 114 N.H. 256, 319 A.2d 286 (1974). The fact that defendant was charged in the conjunctive while the statute is phrased in the disjunctive does not invalidate the indictment. Only one offense, \\\"riot,\\\" was charged and judgment will bar any future trial of the defendant for riot. State v. Harlan, 116 N.H. 598, 364 A.2d 1254 (1976).\\nDefendants Dunn and Laaman argue that the court erred in denying their motions to sever State v. Belkner from State v. Dunn and Laaman. The thrust of defendants' argument on this point is that Belkner's case involved physical injury to the prison steward while their cases did not involve infliction of physical injury. They allege that introduction of this evidence against Belkner was highly inflammatory to the jury and that their cases were unrelated to that of Belkner.\\nRSA 644:1 IV reads in pertinent part: \\\"Riot is a class B felony if, in the course of and as a result of the conduct, any person suffers physical injury . . . .\\\" This statement taken in conjunction with the language of RSA 644:1 1, the offense with which all three of the defendants were charged, makes it clear that Dunn and Laaman need not have personally engaged in the actual acts of physical violence to be prosecuted for a class B felony under RSA 644:1 IV. Therefore, as Dunn and Laaman correctly admitted at the hearing on their motions to sever, this evidence was also admissible against them as well as against Belkner. We, therefore, cannot see how the mere joinder of the Belkner case with that of Dunn and Laaman was prejudicial to them. Furthermore, all defendants were charged solely with violation of RSA 644:1 1(a) and for the most part the same witnesses were to be called for both cases. The charges all arose out of the same event and in the interest of efficiency it was proper for these cases to be consolidated. The court did not abuse its discretion in denying the motions to sever. State v. Chickering, 97 N.H. 368, 89 A.2d 206 (1952); ABA Project on Minimum Standards for Criminal Justice, Joinder and Severance \\u00a7 2.3 (Approved Draft, 1968).\\nII. Admissibility of Belkner's Conversation with Inmate West.\\nDefendants all claim that a conversation which took place between inmate West and defendant Belkner, which was admitted over objection, was so prejudicial that defendants were denied a fair trial. They further claim that the conversation was hearsay and inadmissible as such.\\nRoland Fleury, a paroled inmate, testified at defendants' trial that he had seen someone holding a pipe over the prison steward's head. When asked who was holding the pipe, Fleury stated that he could not reveal the identity of the person for \\\"personal reasons, very strong reasons.\\\" In chambers, Fleury stated that a threat against his life had been conveyed to him by his sister from one Tweedel, a guard at the prison. Tweedel was called in chambers and stated the nature of the conversation to the court. The court decided that the testimony was admissible as conduct indicative of a guilty frame of mind. Tweedel was then allowed to testify in front of the jury, over objection, to the following conversation which he overheard while on duty at the prison on December 28, 1975:\\nWest: They slipped Roland (Fleury) out of prison and he ratted us out.\\nBelkner: We've got plenty of friends at all the joints and we'll get letters out and find out where he's at.\\nWest: We'll find him and kill the little bastard.\\nDefendants concede that attempts by an accused to threaten witnesses or prevent them from testifying are admissible against the accused in evidence. 2 J. Wigmore, Evidence \\u00a7 273, 277, 278 (3d ed. 1940); 1 C. Torc\\u00eda, Wharton's Criminal Evidence \\u00a7 217 (13th ed. 1972); Annot., 62 A.L.R. 136 (1929). Defendants claim, however, that in order to be admissible the threats must be linked to Belkner and that there is no evidence to show that Belkner adopted West's threats. We are of the opinion that Belkner's own words could have been found by the court to be threatening to the witness and were admissible as such. See 2 J. Wigmore supra.\\nAt the conclusion of this testimony the court instructed the jury that the conversation was to be considered only in the Belkner case and that it 'was not evidence against Dunn and Laaman. These limiting instructions properly removed any prejudice to Dunn and Laaman.\\nThe court was informed in advance as to what Tweedel's testimony was to be. The court allowed defense counsel to make their objections and argue them at that time. At the conclusion, the court determined that the testimony was admissible and that its value outweighed any prejudice to Belkner. State v. Black, 116 N.H. 836, 368 A.2d 1177 (1976). We find that the record supports the determination of the court.\\nThe statements were not hearsay because they were not offered to prove any fact contained therein but only to show that the statements were made. C. McCormick, Law of Evidence \\u00a7 246, 249 (2d ed. 1972); 6 J. Wigmore, Evidence \\u00a7 1790 (Chadbourn rev. 1970).\\nIII. Motions for Mistrial\\nShortly after the trial commenced, the Manchester Union Leader and the Concord Monitor published articles relating to defendants. The article in the Concord Monitor stated that defendants could receive up to seven years if convicted and included a picture of defendants. The article in the Union Leader described the damage done to the prison, and on an inner page defendants' criminal records were set forth.\\nAlthough the court had instructed the jurors not to read the newspapers or converse about the case, it polled the jurors relative to these articles. Several of the jurors knew of the existence of articles in the papers, but only one juror had read any article and this juror was dismissed by the court. The court then ordered the jury sequestered for the remainder of the trial.\\nDetermination of jury prejudice from news articles is a matter within the discretion of the trial court. State v. Booton, 114 N.H. 750, 758, 329 A.2d 376, 383 (1974). Here the jury was polled and the only juror who might have been prejudiced was dismissed from the case. Defendants can hardly claim prejudice from the mere fact that the jurors knew there were articles in the newspapers. We find the court handled the problem in a manner completely consonant with accepted standards. ABA Project on Minimum Standards for Criminal Justice, Fair Trial and Free Press \\u00a7 3.4 (b) (Approved Draft 1968).\\nAll of the defendants argue that the court erred in not declaring a mistrial when the warden characterized Dunn and Laaman as ringleaders while responding to a question from counsel for defendant Guay, a defendant who was also tried with Belkner, Dunn and Laaman but acquitted. The statement made by the warden was, \\\"I said I would not go down but that I would speak to representatives, including those that had been identified as the ringleaders to me of this particular revolution \\u2014 Laaman, Dunn\\u2014 Counsel for Laaman objected to the statement and moved to strike the answer. The court sustained the objection and the answer was stricken. The court admonished the witness to make no further statements regarding what was told him about who were ringleaders. When charging the jury the court instructed that the jury was to completely disregard any testimony that had been stricken from the record.\\nThe defendants claim that this answer was hearsay, unresponsive, that it was for the jury to determine who was responsible for the sit-in, and that no amount of instruction could eradicate the prejudice caused by the statement. A mistrial is to be declared where, \\\"the existence of some circumstances . . . indicates that justice may not be done if the trial continues to verdict.\\\" State v. Booton, 114 N.H. 750, 757, 329 A.2d 376, 382 (1974). The trial court found that such circumstances did not exist in denying the motion and upon review of the record we find no error in this determination.\\nIV. Argument and Instructions\\nDefendant Laaman complains that the prosecutor's closing argument regarding Laaman's knowledge of the \\\"game plan\\\" was so devoid of evidentiary support that it was unduly prejudicial. However, a reading of the record discloses that no objection was made by counsel for Laaman to this nor to any other part of the prosecutor's argument. It is the policy of this state to require timely objections so that corrective measures may be taken during trial. See State v. Lemire, 115 N.H. 526, 534, 345 A.2d 906, 912 (1975); State v. Breest, 115 N.H. 504, 505-06, 345 A.2d 391, 392 (1975). As no objection was raised and reserved below this issue is waived. Id.; State v. Lemire, 115 N.H. at 534, 345 A.2d at 912. Furthermore, the court cautioned the jury that they were to take their own recollection of the evidence and that the arguments were not statements of fact.\\nDefendant Laaman claims that the court erred in instructing the jury regarding the criminal liability of an accomplice, and defendant Dunn claims that the court erred in instructing the jury on the elements of the offense of riot. We note that Dunn proposed no instruction on riot so that the court could have charged something more favorable to him. Here again, neither defendant objected to the instructions either during the charge or immediately thereafter. Not having raised and preserved these objections below defendants cannot raise them here for the first time. State v. Taschler, 116 N.H. 218, 221, 356 A.2d 697, 699 (1976).\\nDefendants Dunn and Laaman argue that the court's instruction on reasonable doubt was plain error and denied defendants a fair trial. Defendants object to that portion of the court's instruction which states, \\\"It does not mean a trivial or a frivolous or a principal doubt nor one which can be readily or easily explained away but rather such a strong and abiding conviction as still remains after careful consideration of all the facts and arguments against it. . . .\\\" They rely on United States v. Flannery, 451 F.2d 880 (1971), where the court there criticized a similar charge.\\nThe very argument made by defendants was rejected by this court in State v. Black, 116 N.H. 836, 368 A.2d 1177 (1976). \\\"A single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge.\\\" Cupp v. Naughten, 414 U.S. 141, 146-47 (1973). The court here gave a page and a quarter of instructions on reasonable doubt using a variety of descriptions which taken in their totality clearly conveyed the correct concept of reasonable doubt. State v. Black, 116 N.H. 886, 368 A.2d 1177 (1976); State v. Slade, 116 N.H. 436, 362 A.2d 194 (1976); State v. Booton, 114 N.H. 750, 329 A.2d 376 (1974).\\nV. New Trial and Motions to Dismiss\\nDefendant Laaman next complains that there was insufficient evidence for him to be found guilty of riot pursuant to RSA 644:1 1(a) and that the court erred, therefore, in denying his motions for new trial and to dismiss.\\nLaaman was charged with promoting and facilitating the issuance of demands to the prison administration as well as threats directed at prison guards present in the prison dining area on December 25, 1975. The record shows that Laaman was present in the dining area and conferred with Dunn on several occasions during the course of Dunn's speech and threats. When prison guard Rice returned from the warden's office to the dining area to bring the warden's response to inmates' demands, Laaman asked Rice what the hell he was doing there. Further, Laaman loudly cautioned Dunn against going to meet with the warden to present inmates' grievances stating that if Dunn went up there he would probably not return. Laaman refused to leave the dining area at the warden's request and made no effort to disassociate himself from the scene when Dunn announced that the inmates would take a stand against any invasion of the \\\"goon squad\\\" and that some of the inmates might be killed. There was also some evidence that Laaman was knowledgeable as to the inmates' \\\"game plan.\\\" It could be inferred from his statements and conduct that his conferences with Dunn were for the purpose of assisting him.\\nIt is well settled in this state that when reviewing evidence for the purposes of a motion to dismiss, the evidence must be taken \\\" 'in the light most favorable to the State with all reasonable inferences therefrom.' State v. Canney, 112 N.H, 301, 303, 294 A.2d 382, 383 (1972).\\\" State v. Gilbert, 115 N.H. 665, 666, 348 A.2d 713, 714 (1975). We cannot say in reviewing the record that using this standard the jury could not have found Laaman guilty beyond a reasonable doubt.\\nThe granting of a new trial is a question of fact for the trial court and its ruling will not be disturbed unless it appears that it resulted from mistake, partiality, or corruption. See State v. Wren, 77 N.H. 361, 92 A. 170 (1914). Laaman was heard by the court on his claim and it was rejected by the court which thereby implicitly found that the defendant's conviction was not unjust. Id.; State v. Lemire, 115 N.H. 526, 345 A.2d 906 (1975). There was no error in denying Laaman a new trial.\\nThe final claim made by defendants is that the court erred in denying their motion for new trial and to poll the jury. The motion is based on the following allegations. The jury, having been sequestered, asked permission to work on Saturday, May 29, and on Monday, May 31, which was Memorial Day, a holiday. Permission was granted and the jury worked on both days. Defendants conclude from this that the jury was exhausted. On Sunday, May 30, at 10:20 P.M., one of the jurors died which defendants claim further exhausted and demoralized the jurors. Dunn claims that one of the attorneys in his counsel's firm personally knew one of the jurors. Upon being approached, this juror stated that another juror had had a strong conviction that defendants w\\u00e9re innocent. Defendants conclude that this juror yielded her conviction from her exhaustion and shock at the death of a fellow juror.\\nThe court held a detailed hearing on this motion. The sheriff and two deputies who supervised the jurors testified that the jury had been exceedingly good about having to be sequestered. The sheriff testified that the jury wanted to continue to work on the case on Saturday and Monday because they were \\\"into\\\" the case. He also testified as did the deputies that while the jurors were saddened at the death of a fellow juror the jurors appeared otherwise unaffected by the death.\\nIn our opinion the court correctly found that the defendants' claims were unsubst\\u00e1ntiated by the evidence. Polling of the jury is a matter in which the trial court has broad discretion. LeClere v. Gray, 112 N.H. 430, 298 A.2d 116 (1972); Bothwick v. LaBelle, 115 N.H. 279, 339 A.2d 29 (1975). Denial of such a motion will be overturned only for abuse of discretion and we find no abuse here. Id.; State v. Mann, 112 N.H. 412, 297 A.2d 664 (1972).\\nExceptions overruled.\\nAll concurred.\"}" \ No newline at end of file diff --git a/nh/4445607.json b/nh/4445607.json new file mode 100644 index 0000000000000000000000000000000000000000..01f1a40d8798ff8d4eb9eddde9614ba71c3998a6 --- /dev/null +++ b/nh/4445607.json @@ -0,0 +1 @@ +"{\"id\": \"4445607\", \"name\": \"The State of New Hampshire v. Robert W. Bussiere; The State of New Hampshire v. Ronald G. Dupuis\", \"name_abbreviation\": \"State v. Bussiere\", \"decision_date\": \"1978-09-27\", \"docket_number\": \"No. 78-089; No. 78-091\", \"first_page\": 659, \"last_page\": \"664\", \"citations\": \"118 N.H. 659\", \"volume\": \"118\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Supreme Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-11T00:20:11.932391+00:00\", \"provenance\": \"CAP\", \"judges\": \"GRIMES, J., did not sit; the others concurred.\", \"parties\": \"The State of New Hampshire v. Robert W. Bussiere The State of New Hampshire v. Ronald G. Dupuis\", \"head_matter\": \"Hillsborough\\nNo. 78-089\\nNo. 78-091\\nThe State of New Hampshire v. Robert W. Bussiere The State of New Hampshire v. Ronald G. Dupuis\\nSeptember 27, 1978\\nThomas D. Rath, attorney general (John C. Boeckeler, assistant attorney general, orally), for the State.\\nBrown & Nixon P.A., of Manchester (David W. Hess orally), for defendant Bussiere.\\nSheehan, Phinney, Bass & Green P.A., of Manchester {Henry B. Stebbins orally), for defendant Dupuis.\", \"word_count\": \"1794\", \"char_count\": \"11234\", \"text\": \"Bois, J.\\nFour indictments were entered against each of the two defendants. Defendant Bussiere moved to quash three of the indictments against him; defendant Dupuis moved to quash all four. The motions were denied by Flynn, J., who reserved and transferred all questions of law raised by the defendants' exceptions.\\nWe first consider defendant Bussiere's motion to quash indictments. He initially excepts to the two indictments charging him with violations of RSA 632-A:2 (Supp. 1977). One indictment alleges that on a specified date and at a specified place Bussiere:\\ndid purposely engage in sexual penetration in the form of sexual intercourse with [a named victim), not his spouse, when the victim . . . did submit to such sexual penetration by Robert W. Bussiere under circumstances involving kidnapping. . . .\\nThe other RSA 632-A.-2 (Supp. 1977) indictment alleges that on a specified date and at a specified place Bussiere:\\ndid purposely engage in sexual penetration by placing his penis into the mouth of [the named victim], not his spouse, when the victim . . . did submit to such sexual penetration by Robert W. Bussiere under circumstances involving kidnapping. . . .\\nBussiere first argues that the indictments are duplicative because they both charge the commission of the same offense. He cites State v. Harlan, 116 N.H. 598, 364 A.2d 1254 (1976), for the proposition that duplicative indictments are impermissible. In that case we quashed certain indictments that alleged theft by deception. Those indictments charged the commission of the same crimes charged by other indictments. They differed only in their allegations of the means by which the crimes were committed. In the case at bar, however, Harlan is inapplicable, for the two indictments asserted to be duplicative charge separate crimes.\\nIn People v. Robinson, 264 N.W.2d 58 (Mich. App. 1978), the court held that Michigan law defines intercourse and fellatio as being two separate sexual penetrations, and that: \\\"A defendant may be convicted and punished for each act of sexual penetration.\\\" Id. at 62. RSA ch. 632-A is patterned after the Michigan criminal sexual conduct statutes, see N.H.H.R. Jour. 600 (1975), and we find Robinson persuasive. We therefore hold that a defendant may be separately indicted for and convicted of proscribed intercourse and fellatio, two separate offenses against the person.\\nBussiere's second argument has more merit. He argues that the two RSA 632-A:2 (Supp. 1977) indictments are insufficient because they fail to fully set forth the offenses charged. Although the indictments describe the offenses in the words of the statute, we have repeatedly held that this alone \\\" 'does not always meet the constitutional requirements that a fair and full description of the offense must be alleged.' \\\" State v. Bean, 117 N.H. 185, 187\\u201488, 371 A.2d 1152, 1153 (1977), quoting State v. Gilbert, 89 N.H. 134, 194 A. 728 (1937). An indictment is sufficient only if it \\\"clearly sets out all of the necessary elements constituting the offense.\\\" State v. Inselburg, 114 N.H. 824, 827, 330 A.2d 457, 459 (1974); see N.H. CONST. pt. I, art. 15; RSA 601:4. We hold that an indictment alleging that a victim submitted to sexual penetration under circumstances involving kidnapping must enumerate the facts establishing the necessary elements of the offense of kidnapping. See State v. Elkins, 216 Ore. 509, 339 P.2d 715 (1959).\\nThe State submits that: \\\"Kidnapping has a generally understood meaning which is consistent with the criminal code defini tion of the crime\\\" and therefore does not need to be delimited by the indictment. An indictment is not sufficient merely because the State deems a crime charged in an indictment to be generally understood; the necessary elements of the crime must be included in it. We would not sustain an indictment which only charges the substantive crime of kidnapping, without stating the facts constituting the necessary elements of the offense. Such an indictment neither informs the defendant of the particular charges against him nor enables him to \\\"plead his conviction or acquittal as a bar to further prosecution for the same offense... .\\\" 41 Am. Jur. 2d Indictments and Informations \\u00a7 93 (1968), citing State v. Goodwin, 101 N.H. 252, 139 A.2d 630 (1958). We therefore quash the two RSA 632-A:2 (Supp. 1977) indictments entered against defendant Bussiere. See Attorney General Law Enforcement Manual 117 (1970, as amended February 1, 1974).\\nThe remaining claims raised by Bussiere relate to the indictment that charges him with being an accomplice to attempted murder. The indictment charges that on a specified date and at a specified place Bussiere\\nwith the purpose of promoting or facilitating the commission of the offense of murder, did aid Ronald G. Dupuis in committing the said offense by striking the victim . . . about the head with a club in that Ronald G. Dupuis did with a purpose to commit the crime of murder, purposely commit the following acts which under the circumstances as he believed them to be constituted a substantial step toward the commission of the crime of murder in that Ronald G. Dupuis did purposely stab the said [victim] in the area of her neck after having been engaged in the commission of the crime of aggravated felonious sexual assault with the said victim. . . .\\nBussiere first argues that the indictment is insufficient because it fails to charge that he acted purposely when he acted \\\"with the purpose of promoting or facilitating the commission of the offense.. . .\\\" We reject this argument. It is true that, under RSA 626:2 I, \\\"A person is guilty of murder, a felony, or a misdemeanor only if he acts purposely, knowingly, recklessly or negligently, as the law may require, with respect to each material element of the offense.\\\" RSA 626:2 I, however, further states that: \\\"When the law defining an offense prescribes the kind of culpability that is sufficient for its commission, without distinguishing among the material elements thereof, such culpability shall apply to all the material elements. . . .\\\" RSA 626:8 provides that a person is an accomplice if he aided the principal actor \\\"with the purpose of promoting or facilitating the commission of the offense. . . .\\\" In the present case, the indictment tracks the statutory mens rea requirement verbatim. We hold that RSA 626:2 I does not, as defendant Bussiere seems to argue, require an indictment to charge redundantly that a person charged as an accomplice of another purposely acted with purpose of promoting or facilitating the commission of an offense.\\nThe second error Bussiere assigns concerning the accomplice-to-attempted-murder indictment is that it is \\\"deficient and defective in that it suggests a murder was committed\\\" when in fact the alleged victim survived. We agree that the indictment appears to suggest incorrectly that the alleged victim was actually murdered; however, we do not think this is sufficient ground to quash the indictment. The error is not substantive. According to RSA 601:8, \\\"No indictment . in any criminal case . . . shall be . . . quashed . . . for any error or mistake where the person or case may be rightly understood by the court [,] . and courts and justices may, on motion, order amendments in any such case.\\\" At trial the lower court may strike the words \\\"in committing the said offense\\\" as surplusage. See State v. McPhail, 116 N.H. 440, 362 A.2d 199 (1976); State v. Webster, 39 N.H. 96 (1859). See generally Annot., 17 A.L.R.3d 1285 (1968).\\nWe next consider the motions to quash filed by defendant Dupuis. Dupuis also was charged in two indictments; first, engaging in sexual intercourse \\\"under circumstances involving kidnapping\\\"; and second, engaging in fellatio \\\"under circumstances involving kidnapping.\\\" These indictments are not duplicative; however, they do fail to particularize the facts constituting the \\\"circumstances involving kidnapping.\\\" For this reason, we quash the two RSA 632-A:2 (Supp. 1977) indictments against Dupuis.\\nThe denial of the motion to quash the accomplice-to-kidnapping indictment against Dupuis was proper. That indictment charges that on a specified date and at a specified place Dupuis\\ndid with the purpose of promoting or facilitating the offense of kidnapping, did [sic] aid one Robert W. Bussiere in committing the offense of kidnapping by transporting [the victim] against her will in a motor vehicle . . . with the intent to commit an offense against the said [victim], that offense being aggravated felonious sexual assault. . . .\\nThe defendant asserts that in order to be held criminally liable for the conduct of a kidnapper, he must, \\\"at the very least, have knowledge of the intent of the person doing the kidnapping.\\\" Without holding that this statement of the law is correct, we rule that the allegation in the indictment that Dupuis \\\"with the purpose of promoting or facilitating the offense of kidnapping did aid\\\" Bussiere, who \\\"knowingly\\\" confined the victim \\\"with the intent to commit an offense\\\" against her, is sufficient to charge that Dupuis acted with knowledge of Bussiere's intent.\\nFinally, we agree that the attempted-murder indictment against Dupuis should be quashed. It charges that on a specific date and at a specific place Dupuis did\\nwith a purpose to commit the crime of murder, purposely commit the following acts which under the circumstances as he believed them to be, constituted a substantial step toward the commission of the said crime, to wit: did purposely stab [the victim] in the area of her neck after having been engaged in the commission of the crime of aggravated felonious sexual assault with the said victim . . .\\nFrom the above language, it is unclear what crime Dupuis is being indicted for. By reading this indictment, Dupuis could not know whether he has been indicted for attempting to purposely cause the death of another, RSA 630:1-a 1(a), or for attempting to knowingly cause the death of another after having been engaged in the commission of rape, RSA 630:1-a 1(b)(1), See State v. Inselburg, 114 N.H. 824, 330 A.2d 457 (1974). If it is the latter, the indictment suffers from the additional infirmity of failing to describe sufficiently the circumstances under which Dupuis is alleged to have engaged in the commission of aggravated felonious sexual assault on the victim. We therefore quash this indictment.\\nNothing in this opinion should be construed as barring the State from reconvening a grand jury to reindict the defendants. We note, however, as we did in State v. Luv Pharmacy, Inc., 118 N.H. 398, 388 A.2d 190 (1978), that much time and effort could be saved if the State would carefully draft indictments.\\nExceptions sustained in part, overruled in part..\\nGRIMES, J., did not sit; the others concurred.\"}" \ No newline at end of file diff --git a/nh/4445728.json b/nh/4445728.json new file mode 100644 index 0000000000000000000000000000000000000000..896240e25b274723affc93812db1ff866346486a --- /dev/null +++ b/nh/4445728.json @@ -0,0 +1 @@ +"{\"id\": \"4445728\", \"name\": \"Phyllis E. Quimby v. Forest P. Quimby & a.\", \"name_abbreviation\": \"Quimby v. Quimby\", \"decision_date\": \"1978-12-29\", \"docket_number\": \"No. 78-127\", \"first_page\": 907, \"last_page\": \"911\", \"citations\": \"118 N.H. 907\", \"volume\": \"118\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Supreme Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-11T00:20:11.932391+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Phyllis E. Quimby v. Forest P. Quimby & a.\", \"head_matter\": \"Strafford\\nNo. 78-127\\nPhyllis E. Quimby v. Forest P. Quimby & a.\\nDecember 29, 1978\\nUpton, Sanders & Smith, of Concord (Ernest T. Smith III orally), for the plaintiff.\\nJames Koromilas, of Dover, by brief and orally, for the defendant.\", \"word_count\": \"1525\", \"char_count\": \"8614\", \"text\": \"Per curiam.\\nThis equity proceeding concerns the ownership of property which Ina E. Perkins, the real defendant in this case, claims through a tax deed, and which purportedly was transferred at an earlier date to the plaintiff, Phyllis Quimby, by a divorce decree. We find no error in the trial court's determination that defendant Ina Perkins holds title.\\nThe property in question consists of land and a residence located at 106 Mount Vernon Street in the city of Dover. In 1964, title to the premises passed by devise to Forest P. Quimby, former husband of the plaintiff. At that time the plaintiff and Mr. Quimby were estranged from one another and had not communicated in many years; the plaintiff did know, however, that Forest was living in New York with a woman who called herself Elsie May Quimby. In September 1964, Forest executed a quitclaim deed to the Dover property in favor of Elsie May Quimby. The deed was recorded in Elsie's name at the Strafford County Registry of Deeds, but it bore no seal and was not signed by the plaintiff. In March 1965, the plaintiff filed divorce proceedings against Forest, who, in April of that year, wrote a letter declining appearance and indicating his wish that plaintiff be awarded \\\"any property\\\" he might own in New Hampshire. By decree dated July 6, 1965, the plaintiff was awarded the property free of all claims of Forest. The decree was never recorded. The plaintiff first learned of the purported conveyance to Elsie May in September 1965.\\nAfter her divorce the plaintiff took possession of the Dover residence and occupied it as her home. Upon learning of the attempted conveyance to Elsie May, plaintiff commenced a petition to quiet title against both Forest and Elsie May, but it was later dropped by her attorney, ostensibly without plaintiff's knowledge. The bill in equity and the writ in aid of it were recorded in the registry of deeds along with a notation on the deed to Elsie May stating that it was void and of no effect. The notation had been made by plaintiff's attorney.\\nDefendant Ina Perkins, a stepsister of Forest Quimby, became interested in acquiring the Mount Vernon Street property in 1965. She paid the 1965 taxes on the premises in 1966, and did the same in the years 1968 and 1969. She let the 1970 and 1971 taxes lapse, and in 1973, she redeemed the 1970 taxes and purchased the property at a tax sale. Ina received a deed from the city in July 1974, and thereupon notified the plaintiff of her claim of ownership. Like the quitclaim deed to Elsie May, the deed to Ina bore no seal. After receiving her deed, Ina made a demand for rent. When no rent was paid, she filed a writ of possession, RSA 540:13, in district court. The plaintiff, in turn, filed a plea of title, RSA 540:17, thus causing the case to be removed to the superior court, and also filed a bill in equity to quiet title in the superior court. Plaintiff's action to quiet title was joined with Ina's cause and tried by the court without a jury. Both Forest and Elsie May defaulted, and the court found in favor of Ina. The court ruled that Ina had good title to the property and that the plaintiff had to pay rent into the court during the pendency of the cause. Plaintiff's exceptions were reserved and transferred by Dunfey, J.\\nIn reaching its decision, the trial court made several findings that were crucial to the outcome. The court found that the plaintiff paid the taxes on the premises only once during the entire time of her residence there, and further that she did this only after happening upon a notice of a proposed tax sale posted in the city hall. That was in 1967. At no time did the plaintiff notify the tax collector that she claimed ownership of the property or that she would consent to being taxed for it. Moreover, the receipt she was given when she paid the taxes in 1967 read \\\"paid by Phyllis E. Quimby,\\\" but listed Elsie May Quimby as the property owner. Although the plaintiff already claimed ownership of the property, she attended the tax sale held in 1967 with the professed intent to purchase. The court found, however, that her payment of the taxes constituted neither a purchase nor a redemption. Plaintiff never inquired of her ex-husband why the taxes had not been paid; neither did she notify the city tax collection office of her claimed ownership even though she continued to receive and return tax notices from the collector's office, albeit they were addressed to Elsie May Quimby. Based upon the plaintiff's annual receipt of the tax notices and her knowledge of property tax procedures gained from her ownership of other New Hampshire property, the trial court found that the plaintiff had actual knowledge of the yearly assessments against the Dover property.\\nThe city tax collector testified that he searched the records at the registry in 1965 in an effort to locate the party to whom the taxes should be assessed. He located the deed from Forest to Elsie May and noted Forest's address; he also found the writ and the bill in equity which plaintiff had brought against Forest and Elsie May, as well as the notation above the deed stating it was void and of no effect and that Forest was willing to award the property to plaintiff. The collector attempted to locate Forest through the American Merchant Marine Institute in New York after his letters to the address shown on the deed had been returned, and he also inquired of the Coast Guard in Washington, D.C. The collector testified from notes he had made to himself and kept in the file. The notes further indicate that he contacted the plaintiff for information when she was livng in the house, and that she in turn checked with her lawyer who called the collector and advised him to let the house go for taxes but not to press the plaintiff.\\nRSA 73:10 provides that real estate \\\"shall be taxed to the person claiming the same, or to the person who is in the possession and actual occupancy thereof, if such person will consent to be taxed.\\\" Actual title is not required. Piper v. Meredith, 83 N.H. 107, 139 A. 294 (1927). The deed to Elsie May was an indication that she claimed ownership of the property. Even though the deed did not bear a seal, it was sufficient to establish her claim to ownership. It was therefore proper for the city to tax it to her. The plaintiff was the occupant and had purportedly been awarded the property under the divorce decree, but she never consented to be taxed as occupant and never notified the city that she either claimed the property or wished that it be taxed to her. Although the collector saw the petition to quiet title and a notation by plaintiff's lawyer that the deed to Elsie May was void, he also at the same time had word from plaintiff's lawyer not to bother plaintiff about the taxes but to let the property go to tax sale. Under these circumstances the trial court correctly held that the collector would not be charged with notice of any claim by plaintiff which would require the city to tax the property to her. Thus there was no requirement of personal notice to her of the tax sale. The collector did not have to demand that plaintiff be taxed as occupant, Greeley v. Beckman, 75 N.H. 413, 75 A. 528 (1910), and there was no evidence that she would consent to be so taxed.\\nNeither is the sale to Ina Perkins invalidated by Ina's failure to notify the plaintiff of that sale. The record is devoid of evidence supporting the existence of any fiduciary or confidential relationship that would impose a duty on Ina to notify the plaintiff of the sale. Langley v. Batchelder, 69 N.H. 566, 46 A. 1085 (1899).\\nPlaintiff finally contends that the lack of a seal on the collector's deed makes it invalid. As the trial court stated, the requirement of a seal is \\\"archaic\\\"; yet, it was not until 1977 that the legislature abolished the requirement. RSA 477:16 (Supp. 1977). Although the lack of a seal on the 1972 deed prevented legal title from passing, it gave the grantee an equitable interest. See generally Underwood v. Campbell, 14 N.H. 393, 396 (1843); 7 G. Thompson, Real Property \\u00a7 3263, at 477 (1962 Replacement) 4 H. Tiffany, Real Property \\u00a7 1024, at 323 (3d ed. 1975). We hold that it was sufficient to cut off any rights of redemption under RSA 80:32, and that a deed with a seal may now be given by the city. The trial court's decree is affirmed.\\nExceptions overruled.\"}" \ No newline at end of file diff --git a/nh/4447986.json b/nh/4447986.json new file mode 100644 index 0000000000000000000000000000000000000000..494ee59a9018868bffb29f0bd6e3d63ba42705ad --- /dev/null +++ b/nh/4447986.json @@ -0,0 +1 @@ +"{\"id\": \"4447986\", \"name\": \"Joan Blais v. Town of Goffstown\", \"name_abbreviation\": \"Blais v. Town of Goffstown\", \"decision_date\": \"1979-08-17\", \"docket_number\": \"No. 79-046\", \"first_page\": 613, \"last_page\": \"620\", \"citations\": \"119 N.H. 613\", \"volume\": \"119\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Supreme Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-10T23:40:19.495309+00:00\", \"provenance\": \"CAP\", \"judges\": \"BROCK, J., did not sit; the others concurred.\", \"parties\": \"Joan Blais v. Town of Goffstown\", \"head_matter\": \"Hillsborough\\nNo. 79-046\\nJoan Blais v. Town of Goffstown\\nAugust 17, 1979\\nCullity & Kelley, of Manchester (George Roussos orally), for the plaintiff.\\nSheehan, Phinney, Bass & Green, of Manchester (James Q. Shirley orally), for the defendant.\", \"word_count\": \"2395\", \"char_count\": \"14477\", \"text\": \"GRIMES, J.\\nThe principal issue of law presented in this case involving personal injuries sustained by the plaintiff during an attack by a police dog owned by the defendant town is whether the trial court erred in ruling that the plaintiff could not avail herself of the statutory causes of action provided for by RSA 466:19 and :20, collectively the so-called \\\"dog bite statutes.\\\" We overrule the plaintiffs exceptions and hold that no error was committed.\\nRead in the light most favorable to the defendant, who received the jury verdict below, Walker v. Walker, 106 N.H. 282, 287, 210 A.2d 468, 471-72 (1965), the record would support the following findings of fact. On April 15,1975, shortly after midnight, the plaintiff was stopped by Officer Robert Jardine of the Goffstown Police Department for operating a motor vehicle through an intersection against a red light. Plaintiffs husband was a passenger in her automobile. With Officer Jardine, but remaining in the police cruiser, was a German Shepherd police dog owned by the defendant town and cared for by Officer Jardine.\\nDuring the officer's questioning of the plaintiff, her husband, who apparently was intoxicated, left the vehicle and became verbally abusive of the officer. After Mr. Blais refused to abate the verbal and physically threatening demonstrations, Officer Jardine attempted to place him under arrest for disorderly conduct. Mr. Blais, however, refused to cooperate and a fight ensued. At some point, the plaintiff left her car and walked back towards the fight. Officer Jardine, aware of his dog's excited state, ordered the plaintiff to return to her vehicle. The plaintiff denies having heard such an order.\\nAccording to Officer Jardine, the plaintiff grabbed him around the throat and tried to pull him away from her husband. Officer Jardine gave the attack command to his dog. The dog leapt from the cruiser and attacked the plaintiff, biting her right leg. The dog was soon returned to the police cruiser by a newly arrived police officer who had heard an emergency call that Officer Jardine had broadcast on his walkie-talkie. The new officer escorted the plaintiff to her vehicle and then tried to assist his fellow officer in subduing Mr. Blais.\\nThe record would support a finding that, despite repeated warnings to remain in her car, the plaintiff again returned to the site of the fight, which, incidentally now involved five policemen as well as Mr. Blais. The dog saw her going toward Officer Jardine and again attacked. As a result of the two successive attacks, the plaintiff suffered multiple lacerations and permanent scarring on both legs.\\nThe plaintiffs amended writ states two counts, one in ordinary negligence, the other based on RSA 466:19 and :20. Although allowing the amendment, the trial court ruled over exception that the plaintiff could not avail herself of the statutory causes of action set forth in RSA 466:19 and :20, and the case went to the jury solely on the issue of negligence. Following a verdict for the defendant town, Souter, J., transferred plaintiffs exceptions.\\nThe plaintiff first contends that the court committed reversible error in withdrawing from the jury her statutory claim based upon RSA 466:19 and :20. Section 19 reads as follows:\\nAny person to whom or to whose property damage may be occasioned by a dog not owned or kept by him shall be entitled to recover such damage of the person who owns or keeps the dog, or has it in possession, unless the damage was occasioned to him while he was engaged in the commission of a trespass or other tort.\\nSection 20 provides for double damages in actions brought for damage done by dogs. The plaintiffs position is that application of the dog bite statute is required by a fair reading of RSA 412:3 (Supp. 1977), relating to a limited waiver of municipal immunity by acquisition of insurance, and by sound public policy.\\nPrior to the incident giving rise to this case, the town of Goffstown procured liability insurance pursuant to the limited legislative waiver of municipal immunity contained in RSA 412:3 (Supp. 1977). We cannot accept the theory advanced by the plaintiff that the legislature, by enacting RSA 412:3 (Supp. 1977), intended to create substantive causes of action where none had existed before. If the plaintiff has a valid cause of action under the dog bite statutes, RSA 466:19 and :20, it will be because those statutes themselves create the cause of action and not because another statute, here RSA 412:3 (Supp. 1977), partially waives a judicially conferred defense to general tort liability.\\nRead in the literal sense, the dog bite statute would apply to any \\\"person who owns or keeps [a] dog.\\\" RSA 466:19. The critical question, therefore, is whether the legislature intended that municipalities employing police dogs be within the purview of the act.\\nGenerally \\\"the intention of the legislature as expressed in the statute is the touchstone to its meaning.\\\" Ahern v. Laconia Country Club, Inc., 118 N.H. 623, 624, 392 A.2d 587, 588 (1978). But \\\"if the literal meaning of particular words is inconsistent with the general purpose, or . is inconsistent with a well settled principle of law of general application, there is grave reason to doubt whether the literal sense is the sense intended by the legislature.\\\" Quimby v. Woodbury, 63 N.H. 370, 374 (1885). Thus, for example, this court has held that despite the absolute language of the predecessors of RSA 466:19 and :20 (Laws 1851, ch. 1124 and Laws 1863, 2753:1 respectively), \\\"a construction of the statute making the owner of a dog absolutely liable for injuries, regardless of the conduct of the party injured,... would be unreasonable.\\\" Quimby v. Woodbury, 63 N.H. at 374. And in Gagnon v. Frank, 83 N.H. 122, 139 A. 373 (1927), the court stated that RSA 466:19 and :20 \\\"[do] not confer a right of action on all persons indiscriminately.\\\" Id. at 123, 139 A. at 374. Similarly in the present case, we hold that the subject statutes are inapplicable to suits against municipalities for injuries suffered from their reasonable use of police dogs.\\nSeveral factors convince us that this interpretation is the proper one. First, keeping in mind that the sweeping language of the dog bite statutes demands \\\"reasonable interpretation,\\\" Noyes v. Labrecque, 106 N.H. 357, 358, 211 A.2d 421, 422 (1965), we think it would lie less than reasonable to believe that in 1851, when to our knowledge municipal police forces were not using attack dogs, the legislature intended to include municipal owners of police dogs within the definition of an \\\"owner or keeper of [a] dog.\\\" RSA 4'66:19. Second, as municipalities at that time enjoyed near-complete immunity from suits sounding in tort, Gossler v. City of Manchester, 107 N.H. 310, 221 A.2d 242 (1966), it is unlikely that the legislature intended the result argued by the plaintiff. See 2A C. SANDS, SUTHERLAND STATUTORY CONSTRUCTION \\u00a7 50.01 (4th ed. 1973). The trial court quite properly noted that the legislature would not have specifically excluded municipalities from the coverage of RSA 466:19 and :20had it desired to protect towns from dog liability, for \\\"there would have been no occasion to.\\\" The absence of an express exclusion is therefore inconclusive.\\nMoreover, it is a rule of statutory construction \\\"that the general words of a statute do not include the government or affect its rights unless the construction be clear and indisputable upon the text of the act.\\\" Nardone v. United States, 302 U.S. 379, 383 (1937); see Intracoastal Transp., Inc. v. Decatur County, 482 F.2d 361 (5th Cir. 1973); 3 C. SANDS, SUTHERLAND STATUTORY CONSTRUCTION \\u00a7 62.01, at 63 (4th ed. 1974). This rule is of particular applicability where inclusion of the governmental unit \\\"would work obvious absurdity as, for example, the application of a speed law to a policeman pursuing a criminal or the driver of fire engine responding to an alarm.\\\" Nardone v. United States, 302 U.S. at 384.\\nThe examples cited by the Supreme Court in the Nardone opinion are, we think, analogous to the situation at hand. A peace officer is privileged to use reasonable force, albeit through the assistance of a police dog, against another who \\\"by his conduct knowingly causes the [officer] reasonably to believe that he is intentionally impeding the privileged arrest or recapture of a third person.\\\" Restatement (Second) of Torts \\u00a7 138 (1965).; cf. RSA 627:5 (criminal defense of justification for use of physical force in law enforcement).\\nPe\\u00e1ce officers are, by legal compulsion, \\\"conservators of the peace.\\\" State v. Grant, 107 N.H. 1, 2, 216 A.2d 790, 791 (1966). Consequently, they must be allowed a degree of discretion in selecting instrumentalities for law enforcement. We agree with the trial court that \\\"there are probably a number of situations in which it would be regarded today as reasonable for the police to use police dogs in the performance of their official duties.\\\"\\nBased upon our interpretation of the statutes, we hold that the trial court correctly ruled that the plaintiff could not bring her action under RSA 466:19 and :20. Cf. Mclntire v. Plaisted, 57 N.H. 606 (1876) (availability of negligence action where statutory cause of action under predecessor of RSA 466:19 unavailable).\\nThe plaintiffs second contention is that the trial court twice erroneously instructed the jury regarding the peace officer's privileged use of reasonable force. The first instruction, summarized, was that in attempting to terminate breaches of the peace, a peace officer \\\"is privileged to use force against another\\\" if the officer's use of force, as well as his belief in its necessity, is reasonable and \\\"not intended or likely to cause death or serious bodily harm.\\\" This instruction is essentially compatible with Restatement (Second) of Torts \\u00a7 141(1965), and does not in any material way misstate the law of New Hampshire. The plaintiff argues that the language of the instruction goes beyond the peace officer's justification defense provided for in RSA 627:5, and that it is therefore erroneous. We disagree. RSA 627:5 deals with a criminal defense rather than with a tort privilege. Although the substance of that statute is of some guidance in civil proceedings, it is not directly applicable. Accord, Hatfield v. Gracen, 279 Ore. 303, 307, 567 P.2d 546, 549 (1977).\\nThe second instruction complained of was a quotation of Restatement (Second) of Torts \\u00a7 138 (1965), to which we referred earlier in this opinion as the law of this State. We hold that no error was committed by the trial court relative to its instruction on the privileged use of reasonable force by peace officers.\\nThe plaintiff next contends that the court erred in admitting certain testimony of Officer Jardine concerning an unrelated routine traffic stop in which his life had been threatened by the driver and occupant of a car he had stopped. We can find no error in the court's admission of the testimony. Plaintiff's counsel, during his direct examination of Officer Jardine, brought out the following testimony from him:\\nQ. And so going through your mind you felt Mrs. Blais was going to come back and come at you from behind, or something like that?\\nA. It's no telling what she could have done or what she could have had when she was coming out .\\nQ. What do you mean, could have had?\\nA. Could have taken out of the vehicle.\\nQ. Like what?\\nA. A weapon, tire iron, screwdriver, anything.\\nQ. Did you really think at the time, Officer Jardine, that this woman was going to come out with a weapon?\\nA. I had no idea what she was going to come out with. All I wanted was for her to stay in the vehicle.\\nThe plaintiff having put the officer's then-existing state of mind in issue, she cannot now complain of further testimony that went in on cross-examination to explain the basis for that state of mind. See generally Allen v. State, 110 N.H. 42, 48, 260 A.2d 454, 459 (1969); Lafferty v. Houlihan, 81 N.H. 67, 121 A. 92 (1923).\\nThe plaintiff's final contention relates to the court's denial of her motion for mistrial made after the second of two references to criminal proceedings brought against her husband for his conduct on the night in question. The initial reference to the collateral proceedings against Mr. Blais occurred during defendant's cross-examination of Officer Jardine, when defense counsel asked: \\\"Now, you were also asked [by plaintiff's counsel] if you had made previous statements about this case, and I would ask you: were you a witness at the criminal proceedings against Mr. Blais?\\\" After lodging an objection plaintiff's counsel agreed to a curing instruction and did not further pursue the matter. As to this mention of the other proceeding, therefore, the plaintiff's objection is deemed waived. Barton v. City of Manchester, 110 N.H. 494, 272 A.2d 612 (1970). The trial court scrupulously guarded plaintiffs position by ordering defense counsel to cease all mention of the \\\"criminal\\\" nature of the prior proceeding and by immediately cautioning the jury that \\\"no criminal proceeding specifically has ever been brought against Mrs. Blais.\\\"\\nThe motion for mistrial came after a different police officer mentioned that he had not seen plaintiffs husband since the incident, except at \\\"the court trial.\\\" Plaintiffs counsel objected and the court struck the answer and repeated the cautionary instruction. At the bench, plaintiffs counsel moved for a mistrial on the ground of prejudice, and the court denied the motion over exception.\\nWe hold that the trial court's denial of the plaintiff's motion for mistrial was proper. By the time of the motion the jury was undoubtedly aware of collateral proceedings involving Mr. Blais. But the court did all that was required in the circumstances by twice instructing the jury that Mr. Blais' problems with the law could not be imputed to the plaintiff. Emerson v. Cobb, 88 N.H. 199, 201, 186 A. 12, 13 (1936); see Mason v. Knox, 66 N.H. 545, 546, 27 A. 305, 305 (1891). Any prejudice or error resulting from mention of collateral proceedings involving plaintiff's husband was overcome by the trial court's careful handling of the situation.\\nExceptions overruled.\\nBROCK, J., did not sit; the others concurred.\"}" \ No newline at end of file diff --git a/nh/4452930.json b/nh/4452930.json new file mode 100644 index 0000000000000000000000000000000000000000..7e05554875e5120f119eea81aea4e210ffeac2a0 --- /dev/null +++ b/nh/4452930.json @@ -0,0 +1 @@ +"{\"id\": \"4452930\", \"name\": \"Kristen L. Holzworth v. Peter Fuller\", \"name_abbreviation\": \"Holzworth v. Fuller\", \"decision_date\": \"1982-07-07\", \"docket_number\": \"No. 81-442\", \"first_page\": 643, \"last_page\": \"646\", \"citations\": \"122 N.H. 643\", \"volume\": \"122\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Supreme Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-11T01:46:48.051485+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Kristen L. Holzworth v. Peter Fuller\", \"head_matter\": \"Rockingham\\nNo. 81-442\\nKristen L. Holzworth v. Peter Fuller\\nJuly 7, 1982\\nRichard E. Dill Associates P.A., of Kittery, Maine (Richard E. Dill on the brief and orally), for the plaintiff.\\nDevine, Millimet, Stahl & Branch P.A., of Manchester (Susan M. Vercillo on the brief and orally), for the defendant.\", \"word_count\": \"761\", \"char_count\": \"4659\", \"text\": \"Per curiam.\\nAfter receiving benefits under the workmen's compensation act, RSA ch. 281, the plaintiff, Kristen Holzworth, brought the present negligence action against the defendant, Peter Fuller. The defendant filed a motion to dismiss on the ground that RSA 281:12 (Supp. 1981) barred the plaintiff's negligence action. The Court {Bean, J.) granted the defendant's motion to dismiss. We affirm.\\nThe plaintiff, Kristen Holzworth, was employed as a part-time groom at Runnymede Farm, a horse farm owned by the defendant. On June 4, 1977, while performing her tasks as a horsegroom, she was bitten on the left hand by a stallion. The bite caused injury to her left thumb. She received workmen's compensation benefits pursuant to RSA ch. 281. Subsequently, she initiated the present negligence action against the defendant as the owner both of the premises and of the horse.\\nIn this appeal, the only issue is whether the workmen's compensation statute, RSA 281:12 I (Supp. 1981) bars a negligence action by an employee against an employer in his capacity as the owner of the premises and of the instrumentality causing the injury.\\nThe plaintiff requests this court to adopt the dual-capacity theory, which permits negligence actions against employers in certain instances, claiming that the defendant's duties as a landowner and the owner of a stallion were separate and distinct from those owed to the plaintiff as her employer. See 2A A. Larson, The Law of Workmen's Compensation \\u00a7 72.80, at 14-229, \\u00a7 72.82, at 14-234 (1982). The plaintiff argues that the case of Stevens v. Lewis, 118 N.H. 367, 369-70, 387 A.2d 637, 639 (1978), provides convincing precedent in support of the adoption of the dual-capacity theory in New Hampshire. We disagree.\\nRSA 281:12 I (Supp. 1981) limits an employee's right to sue as follows:\\n\\\"An employee of an employer subject to this chapter shall be conclusively presumed . to have waived all rights of action whether at common law or by statute or otherwise:\\nI. Against the employer or the employer's insurance carrier . . . .\\\"\\nWe have held that this statute \\\"clearly prohibits an employee from maintaining a common-law action against his employer for personal injuries arising out of the employment relationship.\\\" O'Keefe v. Associated Grocers of N.E., Inc., 120 N.H. 834, 835-36, 424 A.2d 199, 201 (1980); but see Park v. Rockwell Int'l Corp., 121 N.H. 894, 900, 436 A.2d 1136, 1140 (1981).\\nAlthough application of the dual-capacity doctrine may be appropriate in other circumstances, see Robbins v. Seekamp, 122 N.H. 318, 321, 444 A.2d 537, 538 (1982), the facts of this case do not warrant the application of this doctrine.\\nIn Stevens v. Lewis, this court permitted an employee to bring a negligence action against his employer in his capacity as a co-employee. 118 N.H. at 370, 387 A.2d at 639; but see RSA 281:12 II (Supp. 1981) (legislature abolished suits against co-employees except for intentional torts). Stevens is limited to the facts presented in that case, i.e., where the defendant is both the corporate alter ego and is performing a corporate responsibility, see id. at 370, 387 A.2d at 639, and it contains no suggestion that the dual capacity theory should be extended to permit employees to sue their employer in his additional capacity as landowner.\\nIn the present case, the plaintiff was injured while performing her tasks as an employee. The employment relationship was the dominant relationship between the parties at the time of the accident. See Kottis v. United States Steel Corp., 543 F.2d 22, 26 (7th Cir. 1976), cert. denied, 430 U.S. 916 (1977); but see Tatrai v. Presbyterian University Hospital, 439 A.2d 1162, 1164-65 (Pa. 1982). We are unable to find the distinction the plaintiff claims exists between the defendant's duty, as an employer, to keep a safe work place, and his duties, as the owner of the premises and the horse, to restrain the stallion or to warn the public of potential danger. To allow the plaintiff to bring a negligence action against her employer in his capacity as landowner, after recovering benefits under the workmen's compensation statute, would undermine the policy of the workmen's compensation statute. See O'Keefe v. Associated Grocers of N.E., Inc., 120 N.H. at 835-36, 424 A.2d at 201 (1980); Kottis v. United States Steel Corp., 543 F.2d at 26.\\nAffirmed.\"}" \ No newline at end of file diff --git a/nh/4453672.json b/nh/4453672.json new file mode 100644 index 0000000000000000000000000000000000000000..92ad51ad490af08273bd0151fb9f143300545d0b --- /dev/null +++ b/nh/4453672.json @@ -0,0 +1 @@ +"{\"id\": \"4453672\", \"name\": \"Lillian M. Sampson, Trustee v. Arthur J. Conlon\", \"name_abbreviation\": \"Sampson v. Conlon\", \"decision_date\": \"1955-12-31\", \"docket_number\": \"No. 4442\", \"first_page\": 70, \"last_page\": \"73\", \"citations\": \"100 N.H. 70\", \"volume\": \"100\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Supreme Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-11T00:41:33.623072+00:00\", \"provenance\": \"CAP\", \"judges\": \"All concurred.\", \"parties\": \"Lillian M. Sampson, Trustee v. Arthur J. Conlon.\", \"head_matter\": \"Coos,\\nNo. 4442.\\nLillian M. Sampson, Trustee v. Arthur J. Conlon.\\nSubmitted December 7, 1955.\\nDecided December 31, 1955.\\nGeorge H. Keough for the plaintiff.\\nHamblett, Moran & Hamblett for the defendant.\", \"word_count\": \"728\", \"char_count\": \"4089\", \"text\": \"Goodnow, J.\\nThe first issue raised by the defendant's motion relates principally to RSA 510:8 which provides in part: \\\"when the defendant is not an inhabitant of the state, and no mode of serving the writ is prescribed, or service thereof cannot be made in the mode prescribed, the action may be entered in court and such notice ordered as the case requires.\\\" Section 4 of the same chapter provides: \\\" If the defendant is not an inhabitant of the state, and the writ is not served on him in person within the state, but his goods or estate are attached, an attested copy of the writ and of the return of the attachment may be given to him, or left at his abode outside the state, or may be left with the agent authorized to appear for him, or with his tenant on or near the land attached.\\\"\\nIt is the defendant's contention that section 4 prescribes four \\\"mode[s] of serving the writ\\\"; that it does not appear in this case that \\\"service thereof cannot be made in the mode prescribed\\\"; and that consequently, no authority existed to permit the entry of the action in court under section 8 or the issuing of an order of notice by the court.\\nIt is not a requirement to the entry of an action under section 8 that each of the modes of service provided by section 4 be first exhausted. The plaintiff in this action was no more required to furnish evidence that a diligent search for the defendant had been made in the state where he was alleged to have last resided, as suggested by the defendant, than to show the impossibility of serving upon an \\\"agent authorized to appear for\\\" the defendant or upon \\\"his tenant on or near the land attached.\\\" While the writ recites the \\\"last known residence\\\" of the defendant to have been in Massachusetts, it describes him as being \\\"of parts unknown,\\\" thereby indicating that service could not be made upon him outside the state, either in hand or by leaving \\\"at his abode.\\\" In addition, the sheriff who attached the defendant's real estate in this state made a return of non est inventus. It has long been a settled construction of section 8 that this is sufficient evidence to permit the entry of an action and the issuance of an order of notice by the court. Clark v. Bradstreet, 99 N. H. 55, 57; Therrien v. Scammon, 87 N. H. 214, 215; Burney v. Hodgdon, 66 N. H. 338, 339.\\nThe order of notice directed the plaintiff to notify the defendant of the pendency of the action by causing certified copies of the writ, the return thereon and the court order \\\"to be given or sent by mail in a registered letter to, or left at the last and usual place of abode of said defendant.\\\" See RSA 514:3. If the plaintiff chose to make service by registered mail, this order did not require that copies of the enumerated documents be sent to \\\"the last and usual place of abode\\\" of the defendant, as claimed by him, but only that they be \\\"sent by mail in a registered letter to . . . said defendant.\\\" This the plaintiff did.\\nThe defendant did not personally receipt for the registered mail letter which was sent to him \\\"c/o Harvard Club, 374 Commonwealth Ave., Boston, Massachusetts\\\" but the return receipt \\\"showed the name of Arthur J. Conlon 'by' an agent whose name is not legible.\\\" Whether the agent's signature was legible or illegible, this was sufficient service upon the defendant in this case to meet the requirements of due process. The defendant owned real estate in this state which had been attached. His whereabouts, while unknown to the plaintiff, was evidently known at the Harvard Club. Delivery of the letter to someone at that address who was willing to accept it and receipt therefor in the defendant's behalf was as reasonably certain to inform the defendant of the pending action as the circumstances of the case permitted. Mullane v. Central Hanover Trust Co., 339 U. S. 306, 314.\\nThe defendant's motion should be denied.\\nRemanded.\\nAll concurred.\"}" \ No newline at end of file diff --git a/nh/4455071.json b/nh/4455071.json new file mode 100644 index 0000000000000000000000000000000000000000..e8a843d06a2e8fca49fdc3a62ba32b56d47cf509 --- /dev/null +++ b/nh/4455071.json @@ -0,0 +1 @@ +"{\"id\": \"4455071\", \"name\": \"Gaston Rodrigue & a. v. Gaston LaFlamme & a.\", \"name_abbreviation\": \"Rodrigue v. LaFlamme\", \"decision_date\": \"1982-11-16\", \"docket_number\": \"No. 82-053\", \"first_page\": 966, \"last_page\": \"971\", \"citations\": \"122 N.H. 966\", \"volume\": \"122\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Supreme Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-11T01:46:48.051485+00:00\", \"provenance\": \"CAP\", \"judges\": \"All concurred.\", \"parties\": \"Gaston Rodrigue & a. v. Gaston LaFlamme & a.\", \"head_matter\": \"Coos\\nNo. 82-053\\nGaston Rodrigue & a. v. Gaston LaFlamme & a.\\nNovember 16, 1982\\nBergeron & Hanson, of Berlin (Alethea L. Froburg on the brief and orally), for the plaintiffs.\\nLaw Offices of Philip R. Waystack, Jr., of Colebrook (Vickie Bunnell on the brief and orally), for the defendants Gaston LaFlamme and Pauline LaFlamme.\\nSulloway, Hollis & Soden, of Concord (Peter F. Imse on the brief), by brief for the defendants Timothy M. Duprey and Stephen M. Duprey.\", \"word_count\": \"1693\", \"char_count\": \"10299\", \"text\": \"King, C.J.\\nThe plaintiffs, Gaston Rodrigue and Pauline Rodrigue, brought a petition to enjoin the defendants Timothy M. Duprey and Stephen M. Duprey from constructing residential apartment units in West Stewartstown, New Hampshire. A Master (Robert B. Dickson, Esq.) recommended that the plaintiffs' petition be denied. The Trial Court (Dunfey, C.J.) approved the master's recommendation, and the plaintiffs appealed. We affirm.\\nIn 1974, the defendants Gaston and Pauline LaFlamme decided to subdivide approximately eight acres, owned solely by Pauline LaFlamme, of a fifty-acre tract of land in West Stewartstown, into six identical lots bordered on the sides by the remainder of the fifty-acre tract. Because the town had no zoning ordinance or subdivision regulations, the land use in the immediate neighborhood was both residential and commercial.\\nIn June 1975, Pauline LaFlamme conveyed the first of the lots to Jean and Diane Cote. The deed to the Cotes contained eight restrictive covenants which were prepared by the LaFlammes' attorney. The first covenant read as follows: \\\"Occupancy: The land conveyed herein is to be used for single family residence purposes only, except as may be expressly and otherwise approved in writing by the Grantor.\\\" (Emphasis added.) Later in 1975, the plaintiffs purchased one of the lots. Their deed contained eight covenants identical to those contained in the Cote deed. The plaintiffs and Pauline LaFlamme discussed the deed at the plaintiffs' attorney's office, and the attorney read the deed in its entirety to the plaintiffs. The plaintiffs did not ask Mrs. LaFlamme or her attorney any questions about the meaning of the covenants contained in the deed.\\nIn late 1980, the defendants Duprey wanted to purchase four of the lots for the purpose of constructing twenty residential apartment units under a program sponsored by the Farmers Home Administration. In September 1981, after being convinced that the units would be clean and well-maintained, Mrs. LaFlamme conveyed four lots plus an additional tract of adjacent land to the Dupreys. Their deed contained an express waiver of the single-family-residential-use covenant.\\nWhen the Dupreys started work for the proposed construction on their property, the plaintiffs commenced this action by filing a petition to enjoin the construction. The petition asserted that the single-family-residential-use covenant in the plaintiffs' deed prevented the Dupreys from using their property for any use other than single-family residences.\\nAt trial, the master found that \\\"there [was] clear and convincing evidence that prior to purchasing [their lot], the [p]laintiffs were made aware of the restrictions and express reservations\\\" in the deed. The master further found that the plaintiffs had ample opportunity to raise any questions concerning the language of the deed prior to closing. Consequently, the master denied the relief sought by the plaintiffs. The plaintiffs took no exception to the master's findings or rulings, nor did they object or except to the master's report or file a motion to set it aside. Rather, the plaintiffs simply appealed the judgment entered below by filing a timely notice of appeal in this court.\\nGenerally, the failure of a party to take an exception to the trial court's ruling will preclude review of the issue on appeal. State v. Kelly, 120 N.H. 904, 905, 424 A.2d 820, 821 (1980). The purpose of the rule requiring exceptions is to ensure that the trial judge is aware that the party unfavorably affected by the ruling is not satisfied. 1 Wigmore on Evidence \\u00a7 20, at 353 (3d ed. 1940). This enables the trial judge to consider the alleged error in his ruling and to take remedial measures when necessary. State v. Kelly, 120 N.H. at 904, 424 A.2d at 821.\\nWe have, however, noted some limited exceptions to the general rule requiring a party to take an exception. In Barton v. Manchester, 110 N.H. 494, 496, 272 A.2d 612, 613-14 (1970), we noted that exceptions are unnecessary when the hearing below was designed to secure a ruling on a single question. For instance, in Gove v. Crosby, 100 N.H. 380, 128 A.2d 205 (1956), the issue was limited by agreement to whether at the time of her death the decedent was living apart from her husband for cause. The trial court ruled that the burden of proving that the decedent was living apart for cause was on the plaintiff, the brother of the decedent, who sought to have the estate distributed to him rather than to the decedent's husband. The plaintiff took no exception during trial but entered a bill of exceptions after the court entered its finding and decree. We held that despite the plaintiff's failure to take an exception, this court could properly review the issues raised because the hearing was limited to a single question. Id. at 381, 128 A.2d at 206.\\nThe reason that no exception is necessary in cases in which the hearing below was designed to secure a ruling on a single question is that in such a case, an exception by the party unfavorably affected by the ruling on the question would not further the purpose of the rule. Undoubtedly, the trial judge in writing his opinion would already be aware that the losing party would not be satisfied with such a ruling. The trial judge would be unlikely to reverse himself merely because the party excepted to the ruling, because the judge already would be aware of the party's reasons for disagreeing with the ruling.\\nProulx v. City of Dover, 120 N.H. 674, 421 A.2d 133 (1980), Martineau v. Perrin, 119 N.H. 529, 404 A.2d 1100 (1979), and Garland & LaChance Const. Co. v. City of Keene, 117 N.H. 920, 379 A.2d 1259 (1977), are consistent with this rule. In Garland, we reviewed the sufficiency of the evidence to determine if it supported the trial court's verdict for the plaintiff, because the defendant had excepted only to the court's denial of his motion to set aside the verdict and not to the master's report itself. We noted that review on the merits was not justified because the case did not fit within any exceptions to the general rule. Id. at 921, 379 A.2d at 1260. In Martineau, the plaintiffs in habeas corpus petitions sought to set aside their murder convictions on the ground that the reasonable doubt instruction given to the respective juries was unconstitutional. We denied the petition because the plaintiffs had not taken exceptions to the instruction at their trials, and the cases did not come within any exception to the general rule. 119 N.H. at 532-33, 404 A.2d at 1102-03. In Proulx, the defendant did not file an exception. Unlike the defendant in Garland, however, the defendant in Proulx did not file a motion to set aside the verdict, and this court was therefore precluded from even minimal review. 120 N.H. at 674, 421 A.2d at 134.\\nIn the present case, review is proper even though the plaintiffs did not take an exception to the master's findings or to his report. The case presented the single question of whether the plaintiffs' deed prevented the Dupreys from using the property for any use other than for single-family residences. This would fit within the Gove exception for cases in which the hearing below was designed to secure a ruling on a single question. Because we hold that this case fits within the Gove exception, review of the trial court's decision is proper.\\nRestrictive covenants and equitable servitudes have long been recognized as effective tools for land-use control in this State. In this case, the Dupreys' deed contained no covenant regarding single-family-residential use. To prevail, the plaintiffs must rely on the theory of an equitable reciprocal servitude. See Gauthier v. Robinson, 122 N.H. 365, 368, 444 A.2d 564, 566 (1982). To enforce an equitable reciprocal servitude, the plaintiffs must prove that uniform restrictions were to be imposed on each lot for the benefit of all the other lots in the general plan and that the Dupreys had notice of the restrictions. See id. at 368, 444 A.2d at 566.\\nThe existence of an equitable reciprocal servitude can be ascertained from the development plan, the instruments, the conduct of the parties, and the surrounding circumstances. Id. at 368, 444 A.2d at 566. In the present case, although there was a plan which depicted the six lots, the master found no general scheme of development, noting that land use in the area was a mix of residential and commercial. Moreover, the language of the covenant itself indicates that the covenant could be released at the will of the grantor. The plaintiffs knew when they purchased their lot that, even if the same restriction applied to all six lots, compliance with the covenant could be waived by Pauline LaFlamme at any time. For this reason, we hold that the plaintiffs failed to offer sufficient proof that an equitable reciprocal servitude existed.\\nThe plaintiffs argue in the alternative that if this court refuses to find an equitable reciprocal servitude, a rule of \\\"reasonableness\\\" should be imposed on Pauline LaFlamme's right to waive the single-family residential-use restriction. The plaintiffs argue that Mrs. LaFlamme contemplated that only two-family residences might be built on the Duprey's lots, and that her right to waive compliance with the single-family-residence restriction could be exercised only to allow two-family residences on those lots. The trial court found that Mrs. LaFlamme's intent was to restrict the use of the Dupreys' lots to \\\"clean\\\" structures. There was no indication that she intended to permit only two-family, rather than multi-family, structures. We will not disturb the trial court's finding as to Mrs. LaFlamme's intent because a reasonable person could have found as the trial court did. See Zimmerman v. Suissevale, Inc., 121 N.H. 1051, 1054, 438 A.2d 290, 292 (1981).\\nAffirmed.\\nAll concurred.\"}" \ No newline at end of file diff --git a/nh/4463583.json b/nh/4463583.json new file mode 100644 index 0000000000000000000000000000000000000000..fa9ba76669bc00499c79b51d755cdc4cc1377222 --- /dev/null +++ b/nh/4463583.json @@ -0,0 +1 @@ +"{\"id\": \"4463583\", \"name\": \"Trustees of the Protestant Episcopal Church &a. v. Robert Danais, Director\", \"name_abbreviation\": \"Trustees of the Protestant Episcopal Church v. Danais\", \"decision_date\": \"1967-11-30\", \"docket_number\": \"No. 5673\", \"first_page\": 344, \"last_page\": \"347\", \"citations\": \"108 N.H. 344\", \"volume\": \"108\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Supreme Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-10T17:20:34.722160+00:00\", \"provenance\": \"CAP\", \"judges\": \"All concurred.\", \"parties\": \"Trustees of the Protestant Episcopal Church &a. v. Robert Danais, Director.\", \"head_matter\": \"Rockingham,\\nNo. 5673.\\nTrustees of the Protestant Episcopal Church &a. v. Robert Danais, Director.\\nArgued October 4, 1967.\\nDecided November 30, 1967.\\nEdwardF. Gage ( by brief and orally ), for the plaintiffs.\\nNorman E. D.'Amours, Assistant Attorney General (by brief), for the defendant.\", \"word_count\": \"986\", \"char_count\": \"5774\", \"text\": \"Griffith, J.\\nThe petition involves a tract of land acquired by Christ Church on August 28, 1866 by warranty deed of William O. and Clarissa T. Smith reciting the \\\"premises are to be used for the purpose of erecting and maintaining a house of worship for said Church.\\\" The habendum further provided that the grant to the church is to be held for the above named purpose \\\"so long as said Christ Church shall continue to exist and if from any cause said Church shall cease to exist then to the Missionary Fund of the Episcopal Diocese of New Hampshire.\\\"\\nIt appears from the petition that a church building was erected and that it has been in continuous use until the present time. The growth of the parish of Christ Church in the hundred years that have elapsed since the deed is such that the present church is no longer adequate for the membership without extensive reconstruction. Reconstruction of the present wooden edifice would be uneconomical and impractical, as the land on which the church stands is inadequate and adjacent land is unavailable. Christ Church has therefore erected a new church complex in Exeter and has agreed to sell the present church building and land to Exeter Academy whose land surrounds it on three sides. The sum of $29,800 to be paid to the church for the property would be applied to cost of land and construction of the new church facilities.\\nThe archives of the Protestant Episcopal Church in New Hampshire have been searched and there is no record of any legal entity known as the \\\"Missionary Fund of the Episcopal Diocese of New Hampshire\\\" and the plaintiffs'information and belief are that there is not now and never has been such an entity. The plaintiff Trustees of the Protestant Episcopal Church in New Hampshire were incorporated by Laws of 1846, c. 441.\\nThe following questions were transferred by the Trial Court without ruling:\\n\\\"1. By the deed of William 0. Smith and Clarissa T. Smith was a charitable trust created?\\n\\\"2. Did said deed setting forth the purpose of such conveyance convey title in trust to the grantees free from any reversionary interest in the grantors or their heirs, if Christ Church should continue to exist but discontinue using the premises for the stated purpose?\\n\\\"3. By naming a non-existent fund of the Episcopal Church as grantee of a contingent interest did the grantors create a contingent interest in the actual governing body of the Episcopal Church in New Hampshire, i.e., The Trustees of the Protestant Episcopal Church in New Hampshire?\\n\\\"4. If a valid charitable trust was created in Christ Church, Exeter, subject to the condition of its continued existence, may it have authority to deviate from the terms of the trust and sell the premises and devote the proceeds to paying a part of the cost of the construction of the new house ofworship of Christ Church?\\\"\\nThe deed indicates a general intention to devote the land to the religious purposes of Christ Church and the \\\"Missionary Fund of the Episcopal Diocese of New Hampshire,\\\" and contained no reverter clause. The language used indicates an intention to create a charitable trust with no rights retained by the grantors but a contingent grant to the \\\"Missionary Fund\\\" if the original grantee ceased to exist. Clearly a charitable trust was created by this deed. Ashuelot National Bank v. Keene, 74 N. H. 148; Keene v. Eastman, 75 N. H. 191; State v. Corporation, 89 N. H. 538. The absence of a reverter or forfeiture clause prevents any reversionary interest in the grantors or their heirs for the failure to use the premises for the stated purpose (Borchers v. Taylor, 83 N. H. 564) and is to be distinguished from cases where a reverter clause was contained in the deed. Lyford v. Laconia, 75 N. H. 220; State v. Corporation, supra. The answers to questions 1 and 2 are therefore in the affirmative.\\nQuestion number 3 relates to the identification of the contingent grantee. The answer to this question relates to a contingency which may never occur and we consider that present identification of the contingent grantee and the trust upon which the contingent grantee might hold is neither required nor desirable. The facts alleged and the question both indicate that identification is in part dependent upon continuation of existing conditions and would require us to forecast conditions which might exist if Christ Church ceased to exist. This court has consistently refused to advise testamentary trustees concerning contingencies which may never occur and there seems to be no occasion to do so here. Cadbury v. Parrish, 89 N. H. 464, 469; Gale v. Gale, 85 N. H. 358, 361.\\nThe facts alleged in the petition indicate that the purposes of the trust may not be carried out without authority to deviate from the terms of the trust in the manner requested. RSA 498:4, relied upon by the plaintiffs, by its language and application has generally been applied to deviations in the administration of trusts rather than an application of the cypres doctrine (Indian Head Nat. Bank v. Rawls, 105 N. H. 142; Citizens' Nat. Bank v. Morgan, 94 N. H. 284 ), and the statute is more limited than the general equitable power of the Superior Court in trust matters. Jacobs v. Bean, 99 N. H. 239.\\nThe Superior Court has ample power to grant the petition and the answer to question number 4 is in the affirmative. Pittsfield Academy v. Attorney General, 95 N. H. 51; Drury v. Sleeper, 84 N. H. 98; Opinion of the Justices, 101 N. H. 531.\\nRemanded.\\nAll concurred.\"}" \ No newline at end of file diff --git a/nh/4465823.json b/nh/4465823.json new file mode 100644 index 0000000000000000000000000000000000000000..b1f7934f1056a2d6232e4733af51869ef35fcbf2 --- /dev/null +++ b/nh/4465823.json @@ -0,0 +1 @@ +"{\"id\": \"4465823\", \"name\": \"Wendell v. Abbott\", \"name_abbreviation\": \"Wendell v. Abbott\", \"decision_date\": \"1864-07\", \"docket_number\": \"\", \"first_page\": 349, \"last_page\": \"355\", \"citations\": \"45 N.H. 349\", \"volume\": \"45\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Supreme Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-10T19:56:02.706827+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Wendell v. Abbott.\", \"head_matter\": \"Wendell v. Abbott.\\nThe use of a deposition on a former trial without objection is considered as a waiver of all merely technical objections, whether to the deposition itself or the caption.\\nWhere there is evidence tending to show the admission by an agent of a material fact, and a question is raised as to the agent\\u2019s authority to make the admission, if there is any evidence tending to show such authority, the whole question may be properly submitted to the jury with instructions to find first whether the agent was acting within the scope of his authority in making the admission, and, if so, to weigh the admission thus made against his principal, otherwise to lay it out of the case.\\nThe declarations, not under oath, of disinterested men having means of knowledge and since deceased, on questions of monuments and boundaries of land, are competent as evidence of reputation; but such declarations in relation to acts of ownership or of possession of land, are not admissible, because such facts cannot be proved by reputation.\\n\\u201cA bog\\u201d or \\u201cboggy ground\\u201d maybe so situated and surrounded as tobe a good natural monument, so that a line running from a given monument by the southerly side of the boggy ground on the premises, to another given monument, would be well located and defined. But the nature of the soil may be such that it would be difficult to determine where the boggy land terminated, and the land not boggy commenced.\\nHence, when a defendant in a writ of entry disclaims all north of a certain line, and pleads the general issue as to all south of it, and describes his line as commencing at a stake, &c., thence running westerly by the southerly side of the boggy ground on said premises to a stake, &c., the plea will not be bad on demurrer, because, for aught that appears in the plea, the line may be definitely located and fixed by such description.\\nBut, upon proof that the southerly side of such boggy ground is a point in dispute, and not easily ascertainable with certainty, then upon motion the plea will be rejected and the defendant will be compelled to describe his line by some fixed, and definite and visible monument; he will be compelled to set a stake at the place where he claims the southerly side of the boggy ground to be, and he must hold up to that line or lose his case.\\nIn such an action the defendant\\u2019s plea should so describe the line to which he claims, that, if the jury find for the defendant, their verdict may follow the words of the plea in describing the line, and yet establish a definite and certain boundary line.\\nWrit op entry to recover a parcel of land situated in Springfield.\\nThe defendant in bis plea described a line commencing at the \\\"Smith road on low ground and near boggy ground, about thirty-two rods northerly of the Stony Brook Road 'so-called, and thence running westerly by the southerly side of the boggy ground on the said premises about one hundred and thirty rods to a stake and stones standing at the northeast corner of Ezra Pillsbury\\u2019s fifteen-acre-piece\\u201d \\u2014 and disclaimed all the demanded premises situated north of said line, and pleaded the general issue as to the rest.\\nThe plaintiff claimed that the north line of the Stony Brook Boad was the south line of his lot, so that the land in dispute was a parcel bounded on the north by the line described in the defendant\\u2019s plea, south by the north line of Stony Brook Boad, east by the Smith Boad, and west by the east line of the saidPillsbury lot.\\nBoth parties claimed under John Wendell, the defendant being the owner of the east part of land sold Bom the south end of lot No. 8, called the bog lot, to James Hogg by John Wendell. The title passed successively through James Hogg, Charles Hogg, afterwards Charles Church, Moses Eastman, Samuel Eastman, John Page, Solomon Bartlett and John Bartlett to the defendant. The plaintiff claimed to own the portion of the lot directly north of the Hogg purchase, and the matter in dispute was the dividing line between the defendant\\u2019s land and the portion of said bog lot directly adjoining it on the north.\\nThe defendant offered the deposition of John Page, to which the plaintiff objected that the caption was insufficient because it did not show whether the plaintiff did or did not object. The caption stated that \\\"the said Henry E. Wendell, being duly notified, was not present.\\u201d It was further objected that the caption did not state that the notice to the plaintiff was annexed to it, the notice being in fact annexed and sufficient. These objections were overruled and the plaintiff excepted. The deposition had been used at a former trial of the case and it appears by the notes of the Judge before whom the trial was had, that these objections were not then taken.\\nEvidence was offered tending to show that one George W. Wendell acted as the general agent of John Wendell in the care, management and sale of all his lands in Springfield; the witness, who was a son of John, stating that he had never known any of the acts of George in such agency disavowed by John.\\nThe seventeenth interrogatory and answer in the deposition of said Page were then read as follows, viz :\\n\\\"Ini. 17. State if Moses Eastman was at Church\\u2019s when Wendell was there. State how you came to be there, and what you and Eastman were doing, and if you heard any conversation between said Eastman and Wendell about the north line of said Eastman\\u2019s said farm. State what that conversation was.\\u201d\\n\\\"Answer. Moses Eastman and myself were at Church\\u2019s in the fall of 1805, we were putting in rye on the farm Eastman had recently bought of Church. I heard conversation between Eastman and Wendell about the north line of the farm. Eastman inquired if there was any land, good for anything, between his land and the bog. George Wendell answered no, you may go as far north as you can and not get mired if you do not go across the brook.\\u201d\\nTo which evidence the plaintiff excepted.\\nThere was evidence tending to show that Benjamin Colby, deceased, had been for many years a surveyor in that neighborhood, had been employed occasionally as the agent of John Wendell and his sons, Geo. W. and Abraham, in the care of the land and to see that no trespasses were committed on plaintiff\\u2019s lands, and who was well acquainted with the boundaries and corners of the lands of the different owners, and had owned and occupied for some years the Evans 15-acre-piece, originally part of this lot, and had aided a witness in running it out as a survey- or.\\nThe defendant testified that said Benjamin Colby told him that the northwest corner of his land was the northeast corner of the Evans land, described in the plea as the corner of Pillsbury\\u2019s land, and that Colby told him that certain large pine stumps on the land in dispute were cut by Moses Eastman, and that he assisted said Eastman in drawing off the trees. To the evidence about cutting and drawing off the trees the plaintiff excepted. Colby had this talk with defendant in A. D. 1853. The plaintiff also offered evidence tending to show that said Colby had declared that the north line of the Stony Brook No ad was the true line.\\nThe court was requested by plaintiff\\u2019s counsel to instruct the jury that \\\"an agent authorized to sell land and take pay therefor is not thereby authorized to bind his principal by admissions in regard to the boundaries of land sold by the principal and deeded before commencement of his agency.\\u201d\\nThe court declined so to instruct the jury, but did say to them, \\\"that, at the time the conversation mentioned in said seventeenth answer was had, it appears that only a part of lot number eight had been sold to Hogg, and that was from the southerly part of it, and it would be competent for John Wendell or his agent to find the true line between what had been sold and what then remained. It was for the jury to find whether he was acting within the scope of his authority in making the admissions mentioned in said seventeenth interrogatory and answer, as to the .true line between what had been sold to Hogg, and what was still unsold,\\u201d and this part of the charge was not excepted to.\\nThe defendant\\u2019s counsel in the opening statement of the defence stated that he did not claim that the line described in the plea was a straight line, but that it was for the jury to find on the evidence the true line between the corners mentioned in the plea. In the course of the trial the defendant\\u2019s counsel interrupted the plaintiff\\u2019s counsel in the examination of a witness and renewed the statement that the defendant did not limit himself to a straight line but claimed such line as the jury should find corresponded with the description and the evidence. Afterwards, in the course of the trial, evidence was offered by the defendant which tended to show that in fact the line described in the plea would not vary materially from a straight line.\\nThe court instructed the jury that if they found the two corners contended for by the defendant, the law would give a straight line between them unless they were satisfied by the evidence that the line should be different, as they might find where the low and boggy ground was, and that such line corresponding to such land was not straight. The jury might find a curve line if necessary to conform to low and boggy land.\\nThe verdict returned by the jury was in these words, viz: \\\"The jury are in favor of a verdict in favor of the defendant, and the establishing of a bound at the stake on the west side of the Smith road near Bog Brook and running a straight line westerly to the northeast corner of the Evans lot.'\\u201d\\nThe corners described in said verdict are the same corners mentioned in the defendant\\u2019s plea.\\nThe verdict as reduced to form was as follows, viz : \\\"In this action the jury find as to that pbrtion of the demanded premises not disclaimed by the defendant, that the defendant did not disseize the plaintiff in manner and form as the plaintiff has thereof declared against him.\\u201d\\nThe plaintiff objects that the verdict as returned by the jury is against the weight of evidence, and furthermore, that the line found by the jury does not in fact give the defendant all the land claimed in Iris plea, and that therefore the verdict ought to have been a verdict for the plaintiff. The plaintiff also moves that the verdict be set aside by reason of the rulings above excepted to, and the refusal of the judge to instruct the jury as requested. The plaintiff also offered the affidavit of Harvey Huntoon, foreman of the jury, a copy of which is annexed, and makes part of the case. The affidavit having been shown to the defendant he objects that the affidavit is not material, and further, that it does not correctly state all that was said and done, and 'asks that if the court should deem these matters material the evidence may be taken on notice.\\nThe following is the affidavit of Harvey Huntoon, foreman of the jury, which was duly subscribed and sworn to :\\n\\\"I, Harvey Huntoon, of Unity, make oath and say: That at the Sept. Term of Court for Sullivan County, 1863, we served upon the jury in the trial of Wendell v. Abbott; that,upon a view of the premises in dispute made by the jury dining the progress of said trial, the defendant and his counsel, Mr. Cushing and Mr. Morse, attended the view with the jury; that they did not show the jury the straight line \\\"from the bound at the stake on the west side of the Smith road near Bog Brook and running a straight line westerly to the northeast corner of the Evans lot,\\u201d as found by them to be the true line between the parties, as the line claimed by them \\u2014 but showed the jury a line starting in a more northerly course from said stake by the Smith road and running northerly to Bog Brook and thence by said Brook and by the southerly side of the Main Bog and thence by a southwesterly course to the northeast corner of the Evans lot, making a large circle to the north of said straight line from stake near Smith road, to Evans corner, as the line claimed to by the defendant Abbott.\\u201d\\nThe questions of law thus arising were reserved.\\nA. & S. H. Edes, and Wheeler, for plaintiff.\\nCushing and Morse, for defendant.\", \"word_count\": \"3825\", \"char_count\": \"21119\", \"text\": \"Sargent, J.\\nThe first objection, that to the caption of John Page's deposition, cannot be sustained. Its use on a former trial without objection is considered as a waiver of all merely formal objections, whether to the deposition itself or to the caption. Burnham v. Wood, 8 N. H. 337; Bartlett v. Hoyt, 33 N. H. 162; Reed v. Spaulding, Sullivan Co. January Term, 1863. And where the minutes of the counsel differed or were silent upon the point, the minutes of the presiding judge before whom the former trial was had, would be held conclusive.\\nWe think, after evidence had been introduced tending to show that George W. Wendell acted as the general agent of John Wendell, in the care, management and sale of all his lands in Springfield, and that John had never been known to disavow any of the acts of said George in such agency, that interrogatory seventeen and the answer to the same in John Page's deposition, in regard to said George's admission as to where the true line was between John Wendell, his principal, and Moses Eastman, which would be the line between the parties in this case, was properly admitted, with the instructions that were given to the jury on that point, as having some tendency to prove that the true line was then known and understood to be by John Wendell and his agent, where the defendant now claims it to be.\\nWe think the evidence was properly introduced as tending to show an admission by one whom the jury might properly find, from the other evidence in the case, to have been authorized to make it in behalf of plaintiff's grantor in relation to this line. And the question as to the authority to make the admission was properly referred to the jury, who, if they found the agent in this matter was acting within the scope of his authority, would consider the testimony in relation to his admission,otherwise they would lay it out of the case.\\nThe instructions requested were properly withheld, as there was no state of facts proved to which the ruling would apply, otherwise the instructions would have been given. If the testimony in this case had shown that the agent had only been authorized to sell land and take pay therefor, then the instructions asked might have been proper, but as the evidence tended to show more than that, it became immaterial what the rule might be in a state of facts that did not exist in this case.\\nThe evidence shows that Benjamin Colby, deceased, had been conversant with the lands and bounds in the neighborhood, and his statement in regard to the bounds of this lot made to a third person during Colby's life, in relation to the northwest corner of defendant's lands, were received without objection. But the evidence went further than this, and defendant stated not only what Colby said about the bound, but that he also said that certain pine stumps on the land in dispute were cut by Moses Eastman and that said Colby assisted Eastman in drawing off the trees. This was admitted subject to plaintiff's exception. This was, no doubt, an important fact in its bearings on the case ; that Moses Eastman, the defendant's remote grantor, cleared the land in dispute many years ago; that he was in possession performing acts of ownership of a public and notorious character, such as would have been likely to attract the notice of the true owner, if Eastman did not own it; the fact that said Eastman cut and removed these large and valuable pine trees in the presence, and by the assistance, of Colby, who had been, and perhaps then was, Wendell's agent to see that no trespasses were committed on his lands, would be important and perhaps vital for the defendant to prove. But being thus important, such fact, if proved at all, must be proved by competent testimony. But we know of no rule of evidence by which such facts, can be proved by hearsay or by reputation. It is not claimed that Colby's statements were made as Wendell's agent, in a way to bind Wendell; and his statements in relation to these matters, not under oath even though since deceased, are clearly inadmissible. The evidence of reputation is confined to monuments and lines and boundaries, but does not extend to acts of ownership, or possession, or to any other facts necessary to make out the defendant's case. On this ground the verdict must be set aside.\\nAs the pleadings stand, it was left to the jury to find not only which termini were the correct ones, but also to find where the defendant's line run between the termini. If they found the termini, as claimed by the defendant, to be correct, they might start northerly and go to Bog Brook, thence on the southerly side of the Main Bog, and thence southerly or southwesterly to the Evans corner, and making a large circle to the north of a straight line; or they might have gone anywhere between that line and a straight line or still further south than a straight line, wherever they should find \\\"the southerly side of the boggy ground on said premises\\\" to be. This was the issue tendered in the plea and joined by the plaintiff, and the verdict will not now be set aside because' the jury found this line in one place rather than in another.\\nIt would seem from 'all the facts disclosed in the case, that here it was not very certain where the southerly side of the boggy ground, was located, or how far the boggy ground extended. And, although in some cases a bog or boggy ground may be so located and so surrounded as to be a good monument, and a line which, should run by the southerly side of it would be as well defined and as easily and as certainly located as though it run to any other fixed monument, yet in other cases it might be difficult to fix the line that should divide the boggy ground from that which was not boggy; and it would seem that this was the fact here. But the defendant should locate the line to which he claims in such a way that it can be found and followed upon the land, and that if the jury find a verdict in his favor and establish the line in the words in which he has described it in his plea it would make a definite and distinct boundary upon the land. But here if the jury had found a verdict for the defendant, and established his line just as he had described it in his plea, it would have made nothing certain except the termini. The line might have varied any where between these termini, according to the opinion of different juries or different individuals as to the extent of the boggy ground. Here there may have been nothing appearing on the face of the plea that could necessarily make it bad on demurrer, because the boggy ground might be so well defined that a line running from a given monument by the southerly side of such boggy ground to another given monument might be as well traced and defined and as fixed and definite as if the middle monument had been an oak tree, properly described. But this case falls clearly within the principle- of Wells v. Jackson Company, 44 N. H. 61, where certain facts exist, which, when in connection with the plea, will make it impossible- to frame a replication raising the issue intended to be tried upon the plea as filed, and where \\u00e1 motion might properly be made to reject the plea for that reason; whichi motion, upon the facts being shown, would be granted, and the defendant would be compelled to amend his plea by locating not only the termini, but the whole course of his line by well defined monuments. In other words, he would be compelled to set a stake where he claimed the southerly side of the boggy ground to be, and having thus definitely located his line he must stand or fall by the line thus chosen. Then a verdict for the defendant which should follow the line described in his plea and in the same words in which he has there described it, would be the fixing of a definite line and boundary, and would be a sufficient verdict.\\nIf the defendant has doubts as to where his line is, he may locate it in such a way at least, as to make himself safe, if he chooses; but when he has located his line he must prove up to that line or lose his case. As the issue was joined in this case, the verdict may have been well enough, at least, it would hardly be set aside on that account, nor because it was against the evidence. But, as the verdict is to be set aside on another ground, the plaintiff may do well before another trial to be prepared to prove to the court, that \\\"the southerly side of boggy ground\\\" in this case is a very uncertain monument, which may be here or may be there, and, on motion to reject the plea, compel the defendant to locate \\\"the southerly side of boggy ground\\\" by setting- a stake- or stakes or some other fixed monument or monuments where he-claims his line should go, so that a jury shall only be obliged, if they find a verdict for the defendant, to describe the line as the defendant describes it in his plea, which shall be a sufficient location of the line and an intelligible description of the same.\\nNew trial granted.\"}" \ No newline at end of file diff --git a/nh/4465868.json b/nh/4465868.json new file mode 100644 index 0000000000000000000000000000000000000000..62c5285d36dff55a1240e1fdabc3b2c2433ea480 --- /dev/null +++ b/nh/4465868.json @@ -0,0 +1 @@ +"{\"id\": \"4465868\", \"name\": \"John Wason v. Rufus Sanborn, Betsey Sanborn, and J. Frank Sanborn\", \"name_abbreviation\": \"Wason v. Sanborn\", \"decision_date\": \"1862-06\", \"docket_number\": \"\", \"first_page\": 169, \"last_page\": \"173\", \"citations\": \"45 N.H. 169\", \"volume\": \"45\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Supreme Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-10T19:56:02.706827+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"John Wason v. Rufus Sanborn, Betsey Sanborn, and J. Frank Sanborn.\", \"head_matter\": \"John Wason v. Rufus Sanborn, Betsey Sanborn, and J. Frank Sanborn.\\nThe court is not always bound to issue an injunction by the mere fact that damages, though substantia], have been recovered, and the title established in an action at law; nor where the injunction will not restore the plaintiff to his former position; nor where an action at law would furnish a full indemnity.\\nThe court will consider the inconvenience and expense, to which the injunction will subject the defendant, as well as the damage of the plaintiff.\\nThe title is not established by a recovery at law, unless, by the pleadings or by proper allegations, it appears what points were in issue, and what must have been decided.\\nNo injunction will be issued unless its terms are in themselves definite and distinct.\\nThis is a petition for a temporally injunction, addressed to Nesmitb, J. in vacation, and referred by him to the Court.\\nIt is attached to a bill in equity, in which the the plaintiff alleges that he has been, for many years past, seized in fee and possessed of certain meadow lands in Chester, containing 15 acres, (described,) with the privileges, &c., lying on both sides of the Shackford brook. In 1848, Rufus Sanborn, husband of the defendant, Betsey Sanborn, was posses-ed of certain lands in Chester, lying on said brook, above the plaintiff\\u2019s meadow, and he erected a dam across the brook, and a saw and planing mill, which were operated by him, and afterwards by the defendants, his grantees. The water of the brook is penned back by said dam, and accumulated so that on opening the gates the same has been so willfully, carelessly and negligently discharged into the brook below, that the plaintiff\\u2019s meadows have been repeatedly inundated and overflowed and damaged, the crops diminished, and soil washed away, to his damage, two hundred dollars.\\nBy the willful, careless and negligent use of said saw and planing mill, the saw dust, slabs, sticks, bark, chips, shavings, and other refuse have been thrown, or suffered to fall into said brook,and to be borne upon the said meadows and the low places thereof, when the same have been overflowed, and, at other times, deposited along the banks of said brook, to be carried and deposited upon said meadows by the succeeding freshet, or rise of water; whereby, said meadows have been impaired in quality and value, the crops diminished, the labor and expense of gathering the same increased, to the damage of the plaintiff, two hundred dollars.\\nAfter repeated and unheeded remonstrances, the plaintiff, on the 27th of September, 1860, commenced an action at law against said Rufus, for the damage then done to his said meadows, wherein, at the April Term of this court in Rockingham county, 1861, a verdict was rendered for the plaintiff against the said Rufus, and at the December law' term of said court, judgment was ordered for the plaintiff on said verdict, for $41.45, and for his costs $113.90 ; which judgment is yet unsatisfied. The said Rufus has conveyed his title to his lands in Chester, on which are said^dam and mills, so that the same are now held by the defendants,- Betsey Sanborn, his wife, free from the control or interference of her husband, and Luther C. Sanborn, his son. The said saw and planing mill is now operated by the defendant, J. Frank Sanborn, son of said Rufus, who, as the plaintiff believes, is a minor, under 21 years of age, and irresponsible. The defendants by accumulating and penning back the water aforesaid, and improperly, negligently, and carelessly discharging the same, continue to overcharge said brook, so that it does not flow as usual, but overflows plaintiff\\u2019s meadows, washes away his soil, and does other injury as aforesaid, to his damage. The defendants continue to cast, or cause, or permit to be cast, or to fall, into said brook, the saw dust, chips, bark, shavings, and other waste and refuse from their mill, to the plaintiffs great damage and annoyance.\\nThe bill prays a writ of injunction to restrain the defendants, &c., from discharging the waters of said brook, so penned back and accumulated, in such unusual quantities as to overflow his meadows; and from casting, or permitting to be cast, or to fall, into said stream, the saw dust, chips, sticks, slabs, bark, shavings, refuse and other waste from said saw and planing mill. Dated Feb. 14,1862.\\nNotice was ordered of the bill and petition and given, and affidavits were taken in support of the allegations of the bill.\\nA. Tuck and F. O. French, for the complainant.\\nMorrison, Stanley and Clark, for the defendant.\", \"word_count\": \"2638\", \"char_count\": \"14892\", \"text\": \"Bell, C. J.\\nThere is a tendency of mind which leads the student of the common law to desire to reduce every thing to fixed and definite rales; to lay down those rules broadly and generally with reference to a few circumstances, and to refuse to allow any regard or attention to others, which, though perhaps not so important, ought not to be overlooked. The tendency of tins leaning is in the right direction. Wherever a certain and fixed rule can be established, it is immensely important that it should be. But there is a large class of cases and of questions, where the circumstances admit of so numerous variations, that no rule can be framed comprehensive enough to reach them. In such cases decisions must be made in the exercise of a sound judgment upon all the circumstances, and such decisions can furnish rules for new cases, only where the same circumstances occur, yet there is a constant striving to treat them as precedents, and to regard the expressions used by the courts in stating the grounds of their decisions, and which are true perhaps in regard to the case in hand, as universally true. The effect of this in case's depending in courts of equity, is marked and bad. It has too of ten been considered, that what the court decline to do in a particular case, they have no authority to do, which we think is often entirely untrue. There is a wide distinction between declining to act because the case is not thought to require it, and not doing the same thing because the court is without power. No jurisdiction can be more ample and unqualified than that of this court in cases of injunction. \\\" They may grant writs of injunction, whenever the same shall be necessary to prevent injustice.\\\" This power is habitually exercised in the cases, and agreeably to the rules, which g'overn such proceedings in courts of equity elsewhere; but the limit of the jurisdiction is to be found within no narrower limits than those prescribed by the statute. When the court decide that they will not issue an injunction in any case, it is never a decision that they have not jurisdiction, but only that the case, as it is presented to them, is not deemed a suitable one for its exercise. So where it is decided in a particular case, that it is proper to issue the writ, it is not to be supposed that the writ is to be issued in every case of the same land in its, general features, since there may be further circumstances which render the process unsuitable.\\nThis bill is evidently brought under the idea that wherever a party has recovered damages in a suit at common law, for the fiowage of his land, he is entitled, as of course, to the aid of the court to compel the discontinuance of the wrong, if the party persists in it; and this petition is presented under the idea that wherever a party may be entitled to an injunction to suppress a nuisance, after a trial and hearing of his case, he will, of course, be entitled to a preliminary injunction, as soon as he has filed his bill; but we incline to think that neither of these things is a matter of course,\\nIt is very commonly said, that the courtis generally unwilling to grant an injunction in a case of nuisance, until the right has been settled in an action at law: Hunt v. Mayor of Albany, 3 Paige, 213; Reid v. Gifford, 6 John. Ch. 19; Porter v. Witham, 17 Me. 292; though this does not apply where the title is clear, or the right is not disputed. White v. Forbes, Walk. Ch. 112; Gardner v. Newburg, 2 John. Ch. 162; Robinson v. Pittinger, 1 Green Ch. 57. It seems to have been inferred that the converse of this is true, and that, wherever the right has been determined at law, it will be a matter of course that an injunction will be granted. But we think a more reasonable rule is laid down in the note to Adams on Equity 211, on the authority of Wood v. Sutcliffe, 2 Sim. N. S. 163: \\\"The court is not always bound by the mere fact, that damages, even if substantial, have been recovered and the legal title is established. It will consider whether the complainant is entitled to the equitable relief, and moreover will not grant it where an injunction will not restore the party to his former position.\\\"\\nTo authorize the court's interference by injunction, there should appear imminent danger of great and irreparable damage, and not of that for which an action at law would furnish full indemnity. Croton Turnpike v. Rider, 1 John. Ch. 611; Bemis v. Upham, 13 Pick. 169; Van Winkle v. Curtis, 2 Green Ch. 422.\\n\\\" In order to entitle the plaintiff to such interference for the purpose of protecting his property,\\\" says Daniell, (Ch. Prac. 1859,) \\\"pending the decision of his legal title, he must show, at least, a strong prima facie case in support of the title which he asserts, and it is also necessary to show that he has not been guilty of any improper delay in applying to the court, The court has then to consider the degree of inconvenience and expense to which granting an injunction would subject the defendant, in the event of his being in the right; and on the other hand the nature of the injury which the plaintiff may sustain in the event of his complaint turning out to be well founded, and the court refusing to interfere pending the decision of the question at law; and thus balancing the question between the two parties, and the extent of inconvenience likely to be incurred on the one side and on the other, the court must exercise its discretion, whether the injunction should be granted, or withheld.\\\"\\nIn the present case, there are objections to the issuing of the injunction requested. The recovery was had in an action alleging the penning back and accumulating the water, and allowing it to run in a time of freshet, so that his meadow was overflowed, and also suffering the saw-dust, &o., to fall into the brook, by which it was carried upon his meadow. Was the recovery for which, or both, of these injuries? They are of a different character, and stand on different ground. It must be the duty of a party, who expects the aid of an injunction, to state his grievance in such a way that it will appear for what he has recovered; or to supply the want of that distinctness in the record by proper allegations in the bill. Here, for aught that appears, the recovery might be had for either grievance alleged, and it cannot be ascertained which. If the recovery was for flowing only, no injunction ought to go as to the saw-dust, cfec., and the reverse.\\nThe injunction sought as to the water seems to us to be indefinite and uncertain and impracticable. It could never be known or determined whether the injunction had been disregarded; and whatever course the miller might adopt, whether he raised his gates, or shut them, if a freshet should overflow the plaintiff's meadow, the defendant would be exposed to be charged with a violation of the injunction. The necessity that the subject matter should be capable of being clearly ascertained, is most obvious, in order that the mandate of the court may be certain and without ambiguity, that what the defendant is commanded to do or not to do may be certain and definite. In Olmstead v. Loomis, 6 Barb. S. C. 152, where the prayer was for an injunction to restrain the defendant from drawing water from a dyke, so as to deprive the complainant of the use of the water sufficient to carry a forge, the court say: \\\" The only object or benefit of such an injunction would be to give the plaintiffs a summary method of punishing the defendant for any accidental, or willful, or careless violation of their rights. We have been unable to find a case, where under such circumstances an injunction has been granted. It would leave open for contest upon affidavits, upon every complaint for breach of' the injunction, the facts whether the plaintiffs had used as much water as they were entitled to. \\\" In the language of the L. C. in Ripon v. Hobart, 3 Myl. & Keen. 169, we may say,\\\" says Pratt, J., \\\" what purpose would such an injunction serve? It would give no information, it would prescribe no certain rule or limits to the defendants. It would not in any manner of way be a guide to them, if it did not operate as a snare. It would in reality amount to nothing more than a warning, that if they did any thing that they ought not to do, they would be punished by the court, but it would leave it to themselves to discover what was forbidden and what allowed.\\\" The injunction in this case was against using a steam engine, so as to injure the banks of the River Witham. \\\"This case,\\\" it is said in Olmstead v. Loomis, \\\"falls far short of those cases, where the rights of the parties were clearly ascertained, and where the courts have interposed by injunction for the purpose of preventing great and irremediable mischief. No such irreparable mischief is apprehended in this case. No threatened danger calls for such a remedy. A simple action at law to recover the damages, for any thing that has yet been made to appear, will be amply sufficient, not only to compensate the plaintiff for the injury sustained, but to prevent a repetition of the wrongs on the part of the defendants.\\\" These remarks seem to us to apply in this case.\\nThe action at law in this case was brought against one of these defendants, and it does not appear that he has now any interest in the mill or concern with it whatever; and it is not alleged that the present holders derive their title from him pending, or subsequent, to that suit. It is not to be regarded, then, as a case where the rights of the parties have been settled at law, as between the parties in interest now before us. A preliminary injunction is ordinarily granted to prevent irreparable mischief, to put an end to litigation perpetually recurring, or to preserve the subject matter of the controversy in its present condition until the dispute is decided. This is neither of these cases. The damages may be well compensated in a suit at law, and at all events they are inconsiderable. It does not appear that a suit against these defendants would not end the controversy, if framed so as to settle any thing. The subject of controversy needs no injunction to preserve it.\\nUnder all the circumstances of this case the injunction must be denied.\\nUpon this opinion being delivered the bill was dismissed by the plaintiff.\"}" \ No newline at end of file diff --git a/nh/4467839.json b/nh/4467839.json new file mode 100644 index 0000000000000000000000000000000000000000..53741bbef446378aa188040a4f817d88ff0833e9 --- /dev/null +++ b/nh/4467839.json @@ -0,0 +1 @@ +"{\"id\": \"4467839\", \"name\": \"Green v. Pettingill & a.\", \"name_abbreviation\": \"Green v. Pettingill\", \"decision_date\": \"1867-07\", \"docket_number\": \"\", \"first_page\": 375, \"last_page\": \"379\", \"citations\": \"47 N.H. 375\", \"volume\": \"47\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Supreme Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-10T22:43:43.088285+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Green v. Pettingill & a.\", \"head_matter\": \"Green v. Pettingill & a.\\nWhere several detached lots of wild and unoccupied land in the same county, are conveyed in mortgage by one deed and upon one and the same condition, an entry by the mortgagee upon one such lot in the name of the whole, would give him constructive legal possession of all the lots in the same county, as against the mortgagors, and also as against any person afterwards entering without right upon any of the lots.\\nTrespass quare clausum fregit.\\nDeclaration that defendants on divers days and times, between Dec. 1, 1859, and Oct. 20, 1862, date of writ, with force and arms,.broke and entered plaintiff\\u2019s close, being lot No. 16, range 1, in 2d division, in Milan, in said county, and cut and carried away 3000 plaintiff\\u2019s trees, worth $500, and converted them to their own use.\\nPlea, general issue.\\nPlaintiff introduced mortgage deed from J. D. Horner, G. A. Hast ings and Henry Paine, to S. J. Heywood, executed Aug. 5, 1854, recorded the 21st of same month, given to secure three notes, two of which, for \\u00a7958 each, payable to said Heywood or order, with interest annually, in one and two years from date, having been endorsed by said Heywood to one Abner Davis, and afterwards the said Davis endorsed and delivered the said notes and mortgage to plaintiff, were produced on trial. The execution of the deed, and notes, and the endorsement and delivery thereof to plaintiff, were duly proved.\\nOther lots in other ranges in Milan were included in this mortgage with No. 16, the one in controversy. Plaintiff testified that be had been on some of these other lots as early as 1856, to ascertain their value, also had entered upon them for the purpose of foreclosing the mortgage, but never before the alleged entry and trespass by defendants had he entered or been on lot No. 16. It was not shown that either Heywood, Davis, Horner, Hastings or Paine, had any title to any of the lands included in said mortgage, or made any entry thereon, or were ever in possession thereof. Plaintiff introduced further testimony tending to show that defendants cut and carried away from. said lot No. 16 two hundred and eighty-two spruce trees, in the winter of 1859, \\u201960. Defendants introduced testimony tending to show that they were employed by Messrs. Dirnn & Co., of Maine, to cut and haul this timber, and that the timber was cut in the town of Cambridge on land owned in common and undivided. No title to lot No. 16 in Milan, nor to the adjoining land in Cambridge, was shown in Dunn & Co., or the defendants. Dunn & Co. claimed to own an interest in common and undivided of the lands in Cambridge, and Mr. Dunn accompanied the defendants when they commenced cutting the timber in question, pointed out to them the town line between Cambridge and Milan up to which he claimed to own the land, and the defendants cut no further than he directed.\\nIt appeared in testimony that there were two lines about forty rods apart, running nearly parallel across lot No. 16 ; that the timber in question was cut between these two lines.\\nPlaintiff claimed the more northerly of these to be the true line between Milan and Cambridge, while the defendants claimed the same as to the other.\\nThe court left it to the jury to say, upon all the evidence, which was the true line between the towns.\\nDefendants\\u2019 counsel contended that, inasmuch as no entry upon lot No. 16 in Milan had been shown by the plaintiff, or those under whom he claimed, prior to the alleged trespass by the defendants, he could not recover.\\nThe court ruled, however, the plaintiff might maintain the action by showing title, and a constructive possession. That, in this case, where there were several lots of wild land, situated in the same county, and included in one deed, an actual entry upon one of the lots, claiming the whole, prior to the alleged trespass, was sufficient to enable the plaintiff to maintain this action against the defendants, provided the jury found the timber was actually cut on lot No. .16 in Milan.\\nTo which exceptions were taken.\\nThe jury returned a verdict for the plaintiff, which defendant moves to set aside, and the questions of law were reserved.\\nBenton & Ray, for defendants.\\nBurns (& Fletcher, for plaintiff.\", \"word_count\": \"2238\", \"char_count\": \"12305\", \"text\": \"Sargent, J.\\nThe defendants claimed that the timber in question was cut in the town of Cambridge, where they or their employers claimed some interest or right. But they claimed, no right whatever in the town of Milan to cut this timber. The jury, by their verdict, under the instructions given them, have found that the cutting was in Milan, so that the defendants were trespassers upon some one, if any one had any right to this land or any prior possession of it.\\nThis was a wild lot, of which no one had or. retained any actual possession. If possession had ever been taken of this lot- by any person having color of title, or claiming the whole lot, by an actual entry upon it, that possession would continue, though there were nothing to give any person notice of it, and a person entering subsequently would be a trespasser, a disturber of the prior possession of the one first entering. But a quere is raised in Hoag v. Wallace, 28 N. H. 547, whether an entry into one of several lots in a town, under color of title to the whole, can be construed to extend to such of the lots as are in a different range from that upon which the entry is made, and which do not adjoin it? Upon examining the opinion in that case, by Eastman, J., we find no authorities cited as the foundation of this position, or of this quere except the remarks of Parker, C. J., in Bailey v. Carleton, 12 N. H. 9, and upon the examination of that case we find that the remarks of the chief justice in that opinion do not warrant the quere in the broad and unqualified manner in which it is stated in Hoag v. Wallace.\\nIn Bailey v. Carleton, it is nowhere claimed, (but the contrary is constantly assumed to be true,) that an entry upon one lot of unoccupied land under a deed which conveyed several similar lots in the same town would not give sufficient constructive legal possession of all these lots, so that the person thus entering might maintain trespass against a party who should enter subsequently upon any of these lots and cut timber or do other acts without right or title. But it is held that when a party having a deed embracing land to which his grantor had good title, and other lands to which he had no right., enters into and possesses that portion of the land which his grantor owned, but makes no entry into the part which he could not lawfully convey, he has no adverse possession of the latter as against the true owner. The doctrine of the case is plainly that an entry by the grantee into one of several lots, all conveyed to him in the same deed, would give him constructive legal possession of all the lots thus conveyed as against his grantor, and as against a person subsequently entering any of said lots without right; yet that such constructive possession of a lot on which he did not actually enter, would not constitute such an adverse possession as would give title to the land by twenty years continuance, as against a third person who should afterwards show that he was the real owner of such last mentioned lot. And the reasons given for this distinction are entirely satisfactory, and it is only when such constructive possession of a lot, under color of title which proves not to be a valid title to such lot, is attempted to be converted into an adverse possession against the real owner of the lot, that the quere, as stated in Hoag v. Wallace, applies.\\nWith that limitation it is well enough; hut in the broad and unqualified form in which it is there stated, it will be found to be in conflict with all the authorities. Littleton says : \\\"If a man hath cause to enter into any lands or tenements in diverse townes in one same county, if he enter into one parcell of the lands or tenements which are in one towne, in the name of all the lands or tenements into the which he hath right to enter within all the townes of the same countie; by such entrie he shall have as good a possession and seizin of all the lands and tenements whereof he hath title of entrie, as if he had entered in deed into every' parcell.\\\" Litt. sec. 417.\\nBut Lord Golee says that this general rule must be understood with this limitation, that the entry of a man to re-continue his inheritance or freehold must ensue his action for the recovery of the same, and hence the rule is limited to lands in the same county. \\\"For if the lands lie in several counties, there must be several actions, and consequently several entries. So if three men disseize me severally of three several acres of land, being nil in one county, and I enter into one acre, in the name of all three acres, this is good for no more but for that acre which I entered into, because each disseizor is a several tenant of the freehold, and as I must have several actions against them for recovery of the land, so my entry must be several.\\\" He also says : \\\"If I enfeoff one of one acre of ground upon condition, and at another time I enfeoff the same man of another acre in the same county upon condition also, and both the conditions are broken, an entry into one in the name of both is not sufficient, for that I have no right to the land, nor action to recover the same, but a bare title, and therefore several entries must be made into the same, in respect to the several conditions. But an entry into one part of the land, in the name of all the land subject to one condition, is good, although the parcels be separate and in several towns.\\\" Coke Litt. 252,b.\\nSo Richardson, C. J., in Riley v. Jameson, 3 N. H. 27, says, when a man enters into land, under a deed, or extent, or as heir to another, such entry will give him possession of all the land which the tide, under which he enters, embraces; because he is presumed to enter, claiming according to his title. For this purpose, it is immaterial whether the title, under which he enters, be a valid one or not. This doctrine is reiterated in Towle v. Ayer, 8 N. H. 59; Breck v. Young, 11 N. H. 485; and also by Parker, C. J., in Bailey v. Carleton, supra.\\nIn case of mortgages, it is held in Bennett v. Conant, 10 Cush. 165, Shaw, C. J., that the mortgage of several detached parcels of land in tbe same county by one deed, to perform one condition, does, as between such parties, constitute them to be one tenement or holding for the purpose of securing the performance of the condition, and, as between those parties and their privies, an entry on one is an entry on the whole.\\nThis court held substantially the same doctrine in Green v. Cross, Coos Co., December Term, 1866, where several detached lots of wild land in the same town were conveyed in mortgage by one deed and upon one condition, that, as between the parties where the lands were wild and unoccupied and where an actual entry can give no notice to any one interested, an entry upon one tract, in the name of all in the same county, is an entry upon all according to the general rule in Coke Litt. 252, b.\\nAnd we think, upon the authority of Bailey v. Carleton, 12 N. H. 17, that such entry on one wild lot, in the name of all in the same county, would give constructive legal possession of all the other wild and unoccupied lots in the same county, if conveyed in the same deed and upon the same condition with the first, so that the party thus entering on one, might maintain trespass against any person afterwards entering without right upon any of the other lots thus conveyed.\\nHow far such constructive possession could be held to be adverse to a third person, who should afterwards show that he was the real owner of some one of said lots, not actually entered upon, having a title paramount to the plaintiff's title, need not be considered, as the point is not raised. Here the plaintiff, having a mortgage deed of several lots in the town of Milan, and having entered upon some of these lots for the purpose of foreclosing his mortgage on the whole, entered of course claiming the whole, and that gave him constructive possession of the whole, as against the mortgagors, and as against these defendants, who, as the jury have found, were trespassers without right.\\nJudgment on the verdict.\"}" \ No newline at end of file diff --git a/nh/4471430.json b/nh/4471430.json new file mode 100644 index 0000000000000000000000000000000000000000..1032c9e806b0e102106f77c64cffcfa96096ddee --- /dev/null +++ b/nh/4471430.json @@ -0,0 +1 @@ +"{\"id\": \"4471430\", \"name\": \"Locke v. Hancock\", \"name_abbreviation\": \"Locke v. Hancock\", \"decision_date\": \"1879-06\", \"docket_number\": \"\", \"first_page\": 85, \"last_page\": \"85\", \"citations\": \"59 N.H. 85\", \"volume\": \"59\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Supreme Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-10T22:58:16.489213+00:00\", \"provenance\": \"CAP\", \"judges\": \"Foster, J., did not sit: the others concurred.\", \"parties\": \"Locke v. Hancock.\", \"head_matter\": \"Locke v. Hancock.\\nThe probate court has exclusive jurisdiction of the adjustment and establishment of advancements.\\nPetition for partition. Facts found by a referee.\\nThe plaintiff claims title through Stephen and Benjamin, sons of the late John Sanborn, who at his decease was the owner of the land, and who had conveyed to Stephen and Benjamin other lands exceeding in value their share of his estate. The plaintiff contends that the question of advancements cannot be tried in this suit.\\nSanborn and Shirley, for the plaintiff.\\nBarnard Leach, for the defendant.\", \"word_count\": \"179\", \"char_count\": \"1074\", \"text\": \"Bingham, J.\\nThe probate court has jurisdiction of all matters relating to the settlement and final distribution of decedents' estates, including advancements. Gen. St., c. 170, s. 2; c. 184, ss. 9, 10; Titus v. Ash, 24 N. H. 319, 327; Henry v. Arms, Smith (N. H.) 39, 44. The defendant must apply to the probate court for an adjustment and establishment of the advancements, and this case may be continued to await the result of that proceeding.\\nQase discharged.\\nFoster, J., did not sit: the others concurred.\"}" \ No newline at end of file diff --git a/nh/4475262.json b/nh/4475262.json new file mode 100644 index 0000000000000000000000000000000000000000..64bb748bdb17b0645670c8df9bb0e4347990e224 --- /dev/null +++ b/nh/4475262.json @@ -0,0 +1 @@ +"{\"id\": \"4475262\", \"name\": \"Sleeper & a. v. Abbott & a.\", \"name_abbreviation\": \"Sleeper v. Abbott\", \"decision_date\": \"1880-06\", \"docket_number\": \"\", \"first_page\": 162, \"last_page\": \"163\", \"citations\": \"60 N.H. 162\", \"volume\": \"60\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Supreme Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-10T23:44:54.077958+00:00\", \"provenance\": \"CAP\", \"judges\": \"Stanley, J., did not sit: the others concurred.\", \"parties\": \"Sleeper & a. v. Abbott & a.\", \"head_matter\": \"Sleeper & a. v. Abbott & a.\\nConfidential communications between attorney and client are not to be revealed by the attorney; but the privilege is that of the client and not of the attorney, and may be waived.\\nAssumpsit, on a promissory note. The evidence tended to show that one M., agent of the plaintiffs, had a conversation with one H., an attorney residing in V ermont, in relation to the plaintiffs\\u2019 claim. H. was called as a witness by the defendants, and testified, without objection, to conversations with M. in reference to the payment of the note by one G., who was principal upon the note. Whether H. acted as counsel for M., or for the plaintiffs, did not distinctly appear. Counsel upon both sides commented in argument to the jury upon the conduct of H. in testifying to-the statements of M.; \\u2014 and the court instructed the jury that if H. was consulted as counsel for M. or for the plaintiffs, it was his. privilege to refuse to testify as to what he learned when so consulted, and that it was his duty to insist upon his privilege; that if he was so consulted, the jury, in determining what weight they should give to his testimony, might take into account the fact that he had not declined to testify to such conversations; and that if he was not consulted as counsel, or did not understand that he-was, he had the same right to testify to what M. said as any other witness. would have had. To these instructions the defendants, excepted. Verdict for the plaintiffs, and motion by the defendants, for a new trial.\\nHay, Brew Sf Jordan, for the defendants.\\nB. F. Whidden and W S. Ladd, for the plaintiffs.\", \"word_count\": \"644\", \"char_count\": \"3563\", \"text\": \"Smith, J.\\nIf H. was counsel for the plaintiffs at the time of his conversation with M., he would not, without their consent, be allowed to testify to communications made to him during such an interview. The privilege of not being examined to such points as are communicated to him while engaged in his professional capacity, is the privilege of the client and not of the attorney. 1 Phil. Evid. 108; 1 Greenl. Evid., s. 243. It is a rule for the protection of the client, that he may present his case to his counsel in the fullest confidence. If the client waive the privilege, the attorney may testify; otherwise it never ceases. 1 Phil. Evid. 108; 1 Greenl. Evid., s. 243; Bacon v. Frisbie, 80 N. Y. 394;-see, also, notes to same case in 30 Am. Rep. 631-633. As H. testified without objection from the plaintiffs, he might have presumed their consent. Testifying by their consent, he was not open to censure or reproach for so doing, and there was nothing on that account to affect his credibility as a witness. It is claimed that the plaintiffs did not know that H. had been consulted by M., arid did not learn Hie fact until it was drawn out on cross-examination, and therefore that H. had no ground for presuming their consent to his testifying. This would be so if H. knew that the plaintiffs were ignorant of the fact that he had been consulted; but if he did not know' it, he might have inferred, from their not objecting, that the plaintiffs were willing he should testify. The instructions on this branch of the ease were wrong, and for this reason the verdict must be set aside.\\nThe exceptions to the refusal to instruct, and to the instructions given in regard to the liability of Barron, one of the defendants, are overruled. The case in this respect is similar to Wagner v. Freschl, 56 N. H. 495, and Bank v. Rider, 58 N. H. 512, and is governed by those cases.\\nNew trial granted.\\nStanley, J., did not sit: the others concurred.\"}" \ No newline at end of file diff --git a/nh/4475492.json b/nh/4475492.json new file mode 100644 index 0000000000000000000000000000000000000000..ed147583cb59d4b87f9d4107a749127bb070d27c --- /dev/null +++ b/nh/4475492.json @@ -0,0 +1 @@ +"{\"id\": \"4475492\", \"name\": \"Kimball & a., Ex'rs, v. Penhallow & a.\", \"name_abbreviation\": \"Kimball v. Penhallow\", \"decision_date\": \"1881-06\", \"docket_number\": \"\", \"first_page\": 448, \"last_page\": \"452\", \"citations\": \"60 N.H. 448\", \"volume\": \"60\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Supreme Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-10T23:44:54.077958+00:00\", \"provenance\": \"CAP\", \"judges\": \"Clark, J., did not sit: the others concurred.\", \"parties\": \"Kimball & a., Ex'rs, v. Penhallow & a.\", \"head_matter\": \"Kimball & a., Ex'rs, v. Penhallow & a.\\nIn a will bequeathing to four persons the sum of $2,000 each, with the limitation that \\u201cin the event of either the four dying without issue, his or her share to go to the survivors in equal parts, to have and to hold the same to them and their several and respective heirs and assigns forever,\\u201d the limitation \\u201cdying without issue\\u201d is not void for remoteness. \\u201cIssue\\u201d means lineal descendant; and \\u201c dying without issue \\u201d means dying without issue living at the decease of the legatee. The share of a legatee dying without issue vests in the survivors free from the original limitation. The legatees may waive the limitation imposed by the will in their favor.\\nBill in Equity, by the executors of the will of Harriet L. Penhallow, deceased, for the advice and direction of the court in regard to the following clause in the will: \\u201cI give and bequeath unto Harriet A. Penhallow, Elizabeth J. Penhallow, Charles L. Penhallow, and David P. Penhallow, children of Andrew J. Pen-hallow two thousand dollars each, in event of either the four dying without issue, his or her share to go to the survivors in equal parts to have and to hold the same to them and their several and respective heirs and assigns forever.\\u201d\\nThe bill alleges that the estate is sufficient to pay the legacies given by the will, and that each of the defendants (being the legatees named in the above clause of the will) claims the sum of $2,000, and threatens to sue therefor: and that the plaintiffs are in doubt whether they may lawfully pay the same. The defendants demurred.\\nThe defendants, pro se.\\nA. It. Hatch, for the executors.\\nThis is an application to the court by executors for instructions as to their duty (Goodhue v. Clark, 37 N. H. 525), and is a friendly suit. Though the executors have no interest in the result, they think it proper, by their counsel, as friends of the court, and as a reason for the application, to suggest that the questions they are unable satisfactorily to determine arise from the words \\u201cdying without issue\\u201d in that clause of the will in which the deceased gives to the defendants $2,000 each; and \\u201cin event of either the four dying without issue, his or her share to go to the survivors in equal parts,\\u201d &c., and are,\\u2014\\n1. Whether the limitation is void for indefiniteness or remoteness, so that they may pay the money directly to the defendants ?\\n2. If there be an effectual limitation, how is tbe word \\u201c issue \\u201d to be interpreted ? Whether it signifies children, or descendants ? as, if one of the defendants shall die leaving grandchildren but no children ?\\n3. Whether upon the birth of children the defendants severally will acquire a vested interest in the legacy to him or her? or, are the words \\u201cliving at his or her decease\\u201d to be imported?\\n4. And if any die \\u201c without issue,\\u201d will his. or her share then vest in the survivors, or remain subject to the original limitation ?\\n5. It will be observed that the clause in question gives nothing to the \\u201c issue \\u201d in any event; and that the limitation is in favor of the survivors of the parties now before the court, and no others. And it may become important to know whether the defendants, if they could agree, might waive the limitation, each so far as it is in his or her favor; or whether the will1 imposes upon the executors a trust which may not be waived, to hold the money until the events indicated in the will have happened.\\nThe executors have been unable to discover in the will anything which may throw light upon the meaning of the words quoted in their bill. The word \\u201c issue \\u201d is but once again used.\\n* * -*\\u2022 * * * * * *\\nThe precedents upon this subject appear to us to be uncertain and contradictory.\\n(1) In the case of such words applied to real estate, the rule seems to be well settled that an indefinite failure of issue is to be understood, and that the limitation creates an estate tail only. 4 Kent Com. 273, 281, 283; 2 Jar. Wills 418; 2 Red. Wills 372; Tenny v. Agar, 12 East 253; Dansey v. Griffiths, 4 Mau. & Sel. 62; Doe dem. Blesard v. Simpson, 3 Man. & G. 928, in which Ld. Denman treated the word \\u201c children \\u201d as equivalent to \\u201c issue; \\u201d Downing v. Wherrin, 19 N. H. 9, 89.\\n(2) In many cases the same rule is applied to bequests of personal property; Beauclerk v. Dormer, 2 Atk. 314; Bigge v. Bensley, 1 Bro. Ch. 188; Knight v. Ellis, 2 Bro. Ch. 570, which turns upon the distinction between a gift to issue, and a limitation to other parties upon failure of issue; Everest v. Gell, 1 Ves., Jr., 286; Barlow v. Salter, 17 Ves. 479 ; Dansey v. Griffiths, supra; Simmons v. Simmons, 8 Sim. 22. A rule of construction was established by the Will\\u2019s Act, 1 Viet., o. 26, s. 29, which has governed all subsequent cases. Jarman v. Vye, L. R. 2 Eq. 787.\\nMr. Redfield says, \\u201c the final result at which the English courts seem to have arrived is, that where there is a clear gift of personalty, and a gift over in default of issue, it shall be held to vest an absolute estate in the first donee,\\u201d &c. 2 Red. Wills 385, o. 13, s. 46 (ed. 1866); Ide v. Ide, 5 Mass. 500; Moffat v. Strong, 10 Johns. 12 ; Paterson v. Ellis, 11 Wend. 259.\\n(3) But there are authorities equally decisive, to the effect that the words \\u201c die without issue \\u201d as applied to personal estate will not be construed to import an indefinite failure of issue ( Chapman v. Forth, 1 P. Wms. 663, Pleydell v. Pleydell, ib. 740, Ranelagh v. Ranelagh, 2 Myl. & K. 441) ; but in this case the legacies were expressly limited to the lives of the first takers. Radford v. Radford, 1 Keen 486; Winch\\u2019s Trusts, 21 L. & E. 367. Mr. Jar-man regards it as well settled, that where the phrase is \\u201c leaving no issue,\\u201d in reference to personal estate, the legatee takes the entire interest defeasible on his leaving no issue at his death.\\u201d 2 Jar. Wills 419. Cases upon this subject are collected in 8 U. S. Dig. 692; 1U.S. Dig. N. S. 461, s. 18 ; and 7 U. S. Dig. N. S. 272, s. 45. See, also, Simonds v. Simonds, 112 Mass. 157, 163; Kimball v. Tilton, 118 Mass. 311. In some cases a distinction seems to be made between the words \\u201c die without 'issue \\u201d and \\u201c die without leaving issue,\\u201d as in Pye v. Linwood, 6 Jur. 618, cited in a note (l) Jar. Wills 419. In other cases weight seems to be given to the fact that the bequest is to the legatee for life, and if he shall die without issue, over. We have not overlooked the question whether the words of the will may not be construed to intend a definite failure of issue, because of the gift over to the \\u201c survivors \\u201d (Roe dem. Sheers v. Jeffery, 7 T. R. 589, Bells v. Gillespie, 5 Rand. 273, Paterson v. Ellis\\u2019 Ex\\u2019rs, 11 Wend. 259, Ranelagh v. Ranelagh, 2 Myl. & K. 441, Denn v. Shenton, Cowp. 410; Jackson v. Chew, 12 Wheat. 153) ; but the soundness of these last two cases has been much questioned. Moffat v. Strong, 10 Johns. 12; Symmes v. Moulton, 120 Mass. 843. Upon the main question Lord Thurlow said, in Bigge v. Bensley, 1 Bro. Ch. 190, \\u201cthat there were (in 3783) not less than fifty-seven cases on this point; \\u201d since which time they have greatly multiplied. See note to Bigge v. Bensley, Perkins\\u2019s ed. In a note to 4 Kent Com. 282, it is said that the conflict of opinion as to the solidity of the distinction in Chapman v. Forth, is very remarkable, and forms one of the most curious and embarrassing cases in the law. Lord Mardivicke is reported to have decided the question both ways. 2 Atk. 288, 314. In Dalrymple v. Hall. L. R. 16 Ch. 715 (8 Feb., 1881), it was holden that the words \\u201cshall die unmarried\\u201d mean never having been married.\", \"word_count\": \"1964\", \"char_count\": \"10805\", \"text\": \"Smith, J.\\n1. The limitation in that clause of the will which gives to the defendants $2,000 each, and \\\" in event of either the four dying without issue, his or her share to go to the survivors in equal parts,\\\" &c., is not void for remoteness. \\\"Dying without issue \\\" means without issue at the death of the legatee. Downing v. Wherrin, 19 N. H. 9; Hall v. Chaffee, 14 N. H. 215; Pinkham v. Blair, 57 N. H. 226.\\n2. The word \\\"issue\\\" means child, grandchild, or other lineal descendant.\\n3. Upon the birth of a child or children, the defendants severally will not acquire a vested interest in the legacy to him or her. The meaning is, dying without issue living at his or her decease.\\n4. If either of the legatees shall die without issue, his or her share will vest in the survivors free from the original limitation. If A shall die before B, C, and D, leaving issue, his share would go to his legal representatives. If B shall next die without issue, his share would go to C and 1), and A's heirs would take nothing in B's share. The children cannot be called a survivor. The heirs do not take as purchasers, but as heirs. All that the heirs can take is the share of their parent, and there would no longer be a share belonging to such parent.\\n5. We think the legatees may waive the limitation imposed by the will in his or her favor. The heirs of the legatees, taking as heirs and not as purchasers, have no vested interest in the bequest. If the legatees agree to waive the limitation imposed in their favor, we see no objection to their all joining in a full discharge and release to the executors for the legacy, expressly stating what they do with the fund, and making a present disposition of it. If the testatrix had intended to prevent such disposition by the legatees, .she could have expressed such intention in various forms, with or without the intervention of a trustee. Joint tenants of real estate may destroy the joint tenancy by conveyances (1 Wash. R.P. 411); and there is no reason why the modified joint tenancy created in this bequest of $8000 may not be terminated by mutual releases from the legatees. The will creates a modified joint tenancy in the four legatees in the sum of $8000 during their joint lives, the right of survivorship being liable to be defeated by the legatees dying with issue living at his or her death. There is no rule that deprives these words of their literal meaning. The essential element necessary to create a joint tenancy \\u2014 the jus aeerescendi \\u2014 is found in this bequest, modified only by the contingency of either of the legatees dying with issue.\\nIt being a joint tenancy for life, the legatees are entitled to receive each the legacy of $2000, and to enjoy the income for life, upon giving security to the executors for the benefit of the other legatees, that the principal shall be preserved unimpaired for the survivors, in case he or she shall die without issue; otherwise, a trustee must be appointed to take the fund, paying the income to the legatees during their lives, and the sum of $2000 to the survivors if either shall die without issue, or to his legal representatives if he shall die leaving issue.\\nCase discharged.\\nClark, J., did not sit: the others concurred.\"}" \ No newline at end of file diff --git a/nh/4488774.json b/nh/4488774.json new file mode 100644 index 0000000000000000000000000000000000000000..8d93dc88ed8cc7acf2f7eb73a5cca40d5693303e --- /dev/null +++ b/nh/4488774.json @@ -0,0 +1 @@ +"{\"id\": \"4488774\", \"name\": \"Lane, Ex'x, v. Hill, Ap't\", \"name_abbreviation\": \"Lane v. Hill\", \"decision_date\": \"1895-12\", \"docket_number\": \"\", \"first_page\": 398, \"last_page\": \"401\", \"citations\": \"68 N.H. 398\", \"volume\": \"68\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Supreme Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-10T21:20:49.060879+00:00\", \"provenance\": \"CAP\", \"judges\": \"All concurred.\", \"parties\": \"Lane, Ex\\u2019x, v. Hill, Ap\\u2019t.\", \"head_matter\": \"Rockingham,\\nDec., 1895.\\nLane, Ex\\u2019x, v. Hill, Ap\\u2019t.\\nUpon an appeal from a decree of the probate court, a defective statement of grievance may be amended if no new ground of appeal is added thereby.\\nA reason of appeal is sufficient if it shows error in the decree which, if established, will entitle the appellant to a reversal; and will not be dismissed for indefiniteness because it does not state the grounds or evidence upon which the contention of the appellant is based.\\nAppeal, from a decree of the probate court approving and allowing a certain instrument as the last will and testament of George W. Lane. The first reason assigned for the appeal is : \\u201c Because said instrument was not the last will and testament of said deceased.\\u201d Four other reasons were assigned, two of which were abandoned, and issues framed under the others were found by a jury in favor of the executrix.\\nThe appellant tenders the following issue under the first reason of appeal: \\u201c That said instrument ought not to be approved and allowed as the last will and testament of George W'. Lane, because she says that since the making and execution thereof the said George W. Lane in his lifetime revoked the same by making and duly executing another will, the provisions of which are inconsistent therewith and intended to revoke the same.\\u201d\\nThe executrix moves that the first reason of appeal be dismissed and for judgment affirming the decree of the probate court, because, (1) the second and third reasons of appeal haviug been abandoned, and the fourth and fifth determined in favor of the plaintiffs by the verdict of tHe jury, no further reason of appeal is alleged upon which an issue can be framed; (2) admitting, as claimed by the appellant, that a subsequent will was made by the deceased, no error is pointed out in the decision of the judge of probate, and no reason assigned why the probate of the will should not stand; (3) the first alleged reason is too loose, vague, and general, and amounts to nothing more than that the result is wrong; and (4) it affords the plaintiff no information of the error complained of and nothing on which to prepare for trial.\\nThe appellant moves for leave to amend the first reason of appeal by adding thereto, \\u201c because since the making and execution thereof the said George W. Laue in his lifetime revoked the same by making and duly executing another will, the provisions of which are inconsistent therewith and intended to revoke the same.\\u201d The issue of revocation was intended to be raised by the first reason of appeal.\\nGreenleaf K. Bartlett and Henry B. Atherton, for the plaintiff.\\nEastman, Young O\\u2019Neill, for the defendant.\", \"word_count\": \"1748\", \"char_count\": \"9949\", \"text\": \"Parsons, J.\\nThe only reason now undisposed of assigned by the appellant for her appeal from the decree of the.probate court approving and allowing the will whose validity is in dispute, is il because said instrument was not the last will and testament of said deceased.\\\" The appellee moves to dismiss the remaining reason of appeal and for judgment. ^ This motion is, in effect, a motion to dismiss the appeal for insufficiency in the reason assigned, and is in the nature of a demurrer and admits all facts stated in the reason of appeal. Eastman v. Barnes, 62 N. H. 630, 631; Doughty v. Little, 61 N. H. 365, 366; Waldron v. Woodman, 58 N. H. 15. The appellant claims that this allegation means that the instrument admitted to probate was not the will of the deceased. If the probate court has allowed as the will of the deceased an instrument which is not in fact his will, that fact would seem to constitute a sufficient reason why the decree of the probate court should be reversed. But the appellee claims that the reason is simply a statement that, as matter of fact, the instrument probated is not the last paper executed by the deceased as a will, and that, from the admission of this fact by demurrer, no conclusion of law necessarily follows that this instrument was not entitled to probate as a will. If the appellant is to be held to the strict rules of pleading contended for by the appellee, it is manifest that the objection goes to the method of statement employed by the appellant and not to the substance of the grievance complained of. Whether, despite the previous contrary holding (Patrick v. Cowles, 45 N. H. 553, 554; Rowell v. Conner, 57 N. H. 323, 324) and contrary to the repeated adjudications, that upon an appeal from the probate court the only questions that can be considered by this court are the grievances specified in the reasons of appeal (Bean v. Burleigh, 4 N. H. 550; Mathes v. Bennett, 21 N. H. 188, 200, 201; Hatch v. Purcell, 21 N. H. 544, 550; Twitched v. Smith, 35 N. H. 48, 50; Patrick v. Cowles, 45 N. H. 553; Caswell v. Hill, 47 N. H. 407, 408; Dodge v. Stickney, 60 N. H. 461; Simmons v. Goodell, 63 N. H. 458, 460; Boynton v. Dyer, 18 Pick. 1; Slack v. Slack, 123 Mass. 443; Murphy v. Walker, 131 Mass. 341), under the present state of the law an amendment to a probate appeal introducing a new and distinct grievance \\u2014 a new reason for appeal not stated in any form in the original reasons \\u2014 is now allowable, if necessary for the prevention of gross injustice (P. S., c. 222, s. 8), it is not now necessary to determine. Por the objection of the appellee now under consideration is to form, not substance, and so far, at least, as method of statement is concerned, the reasons of appeal must be considered pleading and amendable. The substance of the appellant's grievance is the admission to probate of an instrument not in law entitled to probate for the reason assigned,\\u2014 that it was not the testator's will. According to the authorities cited (Patrick v. Cowles and Rowell v. Conner, supra), a defective statement of grievance can be amended if no new ground or grievance is added by the amendment. If an amendment is necessary to obviate the objection, it may be made by striking out the word \\\" last.\\\" It is certainly at least questionable whether any amendment is necessary. Though in common phrase any paper executed in testamentary form is called a will, in a legal sense the testator's will is a paper executed and existing under such circumstances as entitle it to probate. In this sense the word \\\"last\\\" adds nothing, and the phrase used in the appeal is a denial that the instrument was in fact a will.\\nThe appellee further objects that the reason is too indefinite and general, in effect; that it does not set out the grounds, views, or evidence upon which the appellant claims the instrument is not the testator's will. This is unnecessary. The reason is sufficient if it shows error in the decree which, if established, will entitle the appellant to a reversal. Eastman v. Barnes, Doughty v. Little, Waldron v. Woodman, cited supra. \\\" The appellant is not confined to the same arguments, views, or evidence which were presented before the probate court.\\\" Boynton v. Dyer, 18 Pick. 1. \\\" There is nothing in Bean v. Burleigh which gives countenance to the position that the petitioner is required to set out his reasons in the nature of an argument against the decree, or to go into particular circumstances on which he may rely in evidence.\\\" Holt v. Smart, 46 N. H. 9, 10, 11. \\\" The appellant is at liberty to state as many reasons as he chooses, and to bring into litigation every part of the proceedings in the court below.\\\" Bean v. Burleigh, 4 N. H. 550, 553. The correctness of the conclusion of the probate court depended upon various findings of fact and law. If the appellant was satisfied with the findings of the probate court upon a portion of the questions embraced in the judgment, she might have limited her appeal by specifying in her reasons the findings upon such points only as seemed to her objectionable, as insanity in the testator, non-execution, undue influence, or revocation, but she was not obliged to limit her appeal to a portion of the matters embraced in the judgment. After giving a legal reason for error in the judgment, she was not called oil to allege further reasons for the correctness of the reason assigned, or to state the grounds or evidence by which she proposed to establish her contention. Having assigned a sufficient reason,\\u2014 that the instrument probated was not the testator's will,\\u2014 she was not compelled to go further and assign as a foundation for that reason some other sufficient reason, as non-execution, insanity, or revocation. If she had alleged a revocation, she would not have been compelled to go further and state whether she claimed a revocation by express act, by burning, tearing, by execution of another will, or to state the evidence by which she proposed to establish her contention ; nor if she alleged non-execution, would she have been obliged to set out the particulars in which she claimed the execution defective; nor would an allegation of duress, fraud, or undue influence, have compelled her to allege the details of the charge made. The only obligation upon her was to state a legally sufficient reason, which she has done.\\nThe whole question of the validity of the will being brought to this court by the reason of appeal, any disputed question of' fact, the decision of which is material to the question, may be determined by a jury. The issue of revocation tendered presents such a question, and should be allowed. If the reason is too indefinite, the objection may be met by requiring a specification of the appellant. Rowell v. Conner, 57 N. H. 323. In an appeal of this nature, the issues tendered, in effect, amount to such a specification. While a jury can pass only upon matters of fact, an appeal from the probate court is not limited to errors of fact made by that tribunal, but mistakes of law are equally revisable here; hence, a statement that embraces both matter of fact and matter of law, though improper as an issue to the jury (Lane v. Hall, ante, p. 275), is not objectionable as a reason of appeal.\\nCase discharged.\\nAll concurred.\"}" \ No newline at end of file diff --git a/nh/4496227.json b/nh/4496227.json new file mode 100644 index 0000000000000000000000000000000000000000..8b4877ac09aed5356ca4bdd2046d17b0a461bea4 --- /dev/null +++ b/nh/4496227.json @@ -0,0 +1 @@ +"{\"id\": \"4496227\", \"name\": \"Boston & Maine Railroad v. Langdon & a.\", \"name_abbreviation\": \"Boston & Maine Railroad v. Langdon\", \"decision_date\": \"1896-06\", \"docket_number\": \"\", \"first_page\": 467, \"last_page\": \"469\", \"citations\": \"68 N.H. 467\", \"volume\": \"68\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Supreme Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-10T21:20:49.060879+00:00\", \"provenance\": \"CAP\", \"judges\": \"Parsons, J., did not sit:- the others concurred.\", \"parties\": \"Boston & Maine Railroad v. Langdon & a.\", \"head_matter\": \"Rockingham,\\nJune, 1896.\\nBoston & Maine Railroad v. Langdon & a.\\nIn proceedings for the partition, of real estate, a sale regularly made by a commissioner duly appointed will not be set aside, in the absence of fraud, accident, or mistake affecting the transaction.\\nIt is not sufficient ground for setting aside such sale, that one of the owners was unable to procure counsel for the purpose of delaying it, purchased the interest of the petitioners with a belief that he could thereby control the proceedings regardless of non-petitioning owners, and acquired the interest of the remaining cotenants at a date subsequent to the sale.\\nMotion, by the plaintiffs, for confirmation of sale made by a commissioner in proceedings for partition of certain real estate, and for judgment on his report. Proceedings for partition were begun by two tenants in common, each owning one sixth of the realty in question, against the five tenants in common of the other four sixths. The estate not being divisible, the court decreed a sale and duly appointed a commissioner to sell it. Mary A. Langdon, one of the tenants in common, owning one sixth, for the purpose of preventing the sale, purchased prior thereto the shares owned by the petitioners in the original partition proceedings, and requested the commissioner not to proceed with the sale. She attempted negotiations with the other owners, but failed to agree upon the price. Two of these owners requested the commissioner to go on with the sale. Mrs. Langdon understood, until otherwise informed by the commissioner, that her purchase of the interest of the two petitioners would give her control of the proceedings. The commissioner informed her that unless she bought the interest of all the owners, he would be obliged to go on with the sale. She then made all reasonable efforts to see counsel and in some way stop the sale, but failed to see counsel before the sale on account of their absence. Understanding the Boston & Maine Railroad might bid, she notified the station agent before the sale that she objected to it, to which he replied, \\u201c The property is advertised for sale, and we shall be there.\\u201d She attended the sale and bid upon the property, which was sold to the plaintiffs. The proceedings were regular and the price adequate. No fraud or misconduct by any person in relation to the sale is proved or alleged. Since the sale, Mrs. Langdon has made an agreement with all her cotenants to purchase their interests at the sum which they will receive in case the sale is confirmed, which is more than was offered them by her before the sale. All the owners appeared by counsel at the hearing on the motion to confirm the sale, in opposition thereto, and offered, in case the sale was set aside, to fully indemnify the plaintiffs for any expense they had been to on account thereof. The plaintiffs\\u2019 motion was granted, and the defendants excepted.\\nJohn S. U. Frink and Sigourney Butler (of Massachusetts), for the plaintiffs.\\nSargent Hollis and Calvin Fage, for the defendants.\", \"word_count\": \"1206\", \"char_count\": \"6899\", \"text\": \"Wallace, J.\"}" \ No newline at end of file diff --git a/nh/4499277.json b/nh/4499277.json new file mode 100644 index 0000000000000000000000000000000000000000..a0604ff1869291f3c3df19c71bad2523a6197bab --- /dev/null +++ b/nh/4499277.json @@ -0,0 +1 @@ +"{\"id\": \"4499277\", \"name\": \"New England Box Co. v. Prentiss & a\", \"name_abbreviation\": \"New England Box Co. v. Prentiss\", \"decision_date\": \"1912-02-06\", \"docket_number\": \"\", \"first_page\": 313, \"last_page\": \"318\", \"citations\": \"76 N.H. 313\", \"volume\": \"76\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Supreme Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-10T18:52:42.297626+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"New England Box Co. v. Prentiss & a.\", \"head_matter\": \"Cheshire, )\\nFeb. 6, 1912.\\nNew England Box Co. v. Prentiss & a.\\nWhere an owner of lumber, having been wrongfully enjoined from selling the same, applies for an assessment of damages under an injunction bond, he is entitled to recover the difference between the price obtained for the merchandise and the amount he would have received but for the restraining order.\\nWhere a sale of all the timber upon a lot is wrongfully enjoined at the suit of one claiming only a part thereof under a contract of purchase, the owner is entitled to recover for the loss sustained upon the entire amount of lumber by reason of his implicit obedience to the order of the court.\\nMotion, for the assessment of damages provided for by an injunction bond. Trial by the court. Transferred from the October term, 1910, of the superior court by Mitchell, J. The defendants brought an action of debt upon the bond, which was conditioned \\u201cto pay and satisfy all such damages as may be occasioned to said Prentiss & Wilder by reason of said injunction, in case said proceedings in which said injunction was issued should be determined against the New England Box Company.\\u201d The court ordered that the original proceeding in which the bond was given be brought forward for the assessment of damages (75 N. H. 605), that action being a bill in equity which was dismissed upon demurrer. 75 N. H. 246. '\\nMarch 21, 1907, the plaintiffs and defendants entered into a written contract whereby the plaintiffs agreed to buy and the defendants to sell all the merchantable pine plank on a lot in Rockingham, Vermont, the time, rate, and place of delivery, the character of the lumber, the manner in which it should be sawed, the price, and the time of payment being stipulated in the agreement. Subsequently to the execution of the contract and before January 1, 1908, the following clause, out of which the controversy has arisen, was inserted: \\u201c In consideration of the above contract, the said Prentiss & Wilder agree to contract the pine plank on the Richardson lot in Westmoreland at the market price when sawed to the said Box Company.\\u201d\\nJanuary 6, 1908, the plaintiffs\\u2019 secretary wrote the defendant Prentiss, as follows: \\u201cMr. Baker told me recently that you were going to cutting of the Richardson lot from which we were to have the box lumber. I would like to know whether you would like to enter into a contract now, or when the lumber is on sticks, or ready to ship. The understanding on this lot was that we were to have it at the market price; and as nothing was said as to whether it was the market price when the lot was cut or ready to ship, would like to know what your choice' would be in the matter.\\u201d Baker was the plaintiffs\\u2019 superintendent and buyer. To this letter Prentiss replied on January 8, as follows: \\u201cIn regard to the Richardson lot, would say we have about two hundred thousand feet, and perhaps it would be well for you to take the matter up before long and come to some definite understanding in the matter. We will attend to this at your convenience'.\\u201d January 11, the plaintiffs\\u2019 secretary replied: 'Your favor of the 8th received and in reply would say we have written Mr. Baker to see you soon.\\u201d Shortly afterward Baker met the defendants on the lot, and they informed him that the price was $20 per thousand, that being the amount for which they could sell the lumber. Baker told them he would soon notify them whether the lumber would be accepted at that price.\\nJanuary 20, 1908, the plaintiffs brought their bill in equity, setting forth the clause of the contract hereinbefore quoted, alleging that 200,000 feet of plank were then sawed, that the plaintiffs were ready and willing to pay the market price, but that the defendants demanded $20 per thousand, which the plaintiffs claimed to be in excess of the market price, and praying for an injunction to restrain the defendants from selling the pine plank or any of the lumber or timber on said Richardson lot to any person except the plaintiffs; and on that day an injunction was issued restraining the defendants \\u201cfrom selling, conveying, delivering, or otherwise disposing of any of the plank, lumber, or timber described in said petition to any person except the plaintiffs.\\u201d The defendants understood and were advised by counsel that this injunction restrained them from disposing oj.' any timber upon the Richardson lot. July 24, 1908, the injunction was modified so as to permit the defendants to dispose of all lumber and timber the sale of which had been previously enjoined, except such as would naturally and properly be sawed into pine plank in the operation of the lot. As a result of the interpretation put upon the injunction by the defendants and their counsel, they did not remove any of the timber until after the modification of the injunction. While the injunction was pending, by agreement and without prejudice to the rights involved, the plaintiffs received all the pine plank sawed on the lot (544,310 feet) and paid therefor $18 per thousand.\\nThe court ruled that the clause inserted in the contract of March 21, 1907, was an option to purchase the pine plank on the Richardson lot at the market price, and found that the plaintiffs elected to exercise this option before filing the bill in equity, that in January, 1908, the market price in the vicinity of Westmoreland for timber of this kind and quality for future delivery was $20 per thousand feet, and that the defendants could have sold the timber at that price. Although the defendants could have sold the timber in question at that price, the plaintiffs about that time purchased in Massachusetts and in some other towns in New Hampshire several million feet of similar timber for $18 per thousand. The market juice for such plank in Westmoreland continued at $20 per thousand-until about September 1, 1908; but of the plank cut on the Richardson lot, 181,436 feet were actually sawed after September 1, when the market price was about $18 per thousand. The court found the defendants entitled as damages under the bond to $2 per thousand on 544,310 feet ($1,088.62), with the proviso that if the market price contemplated by the contract was the market price when the plank were actually sawed, instead of the time when the plaintiffs exercised the option to purchase, there should be deducted from this sum of $1,088.62 the sum of $362.87 on account of 181,436 feet sawed after September 1, when the market price was only $18 per thousand.; and that if the defendants were as matter of law restrained by the injunction as first issued from taking from the lot the timber thereon other than pine plank, or were justified in so interpreting the injunction, they should be allowed $237 for loss caused by delay in its sale and expense of moving it. Other items of damage allowed made a total of $1,727.42.\\nOne of the defendants\\u2019 witnesses, who qualified as an expert, testified that the market price of pine box-plank in January, 1908, was $20 per thousand. It being claimed by the defendants that the original injunction prevented the removal of railroad ties from the Richardson lot and that they suffered damage from the delay, another witness was permitted to testify as to the price of ties in 1908, prior to the granting of the injunction and after its modification. The testimony of both witnesses was received subject to the plaintiffs\\u2019 exception. The plaintiffs also excepted to the denial of their motion for judgment, to each special finding, and to the denial of their motion for judgment upon each item of the defendants\\u2019 claim.\\nArchibald D. Flower (of Massachusetts) and Cain & Benton, for the plaintiffs.\\nJohn E. Allen and Charles H. Hersey, for the defendants.\", \"word_count\": \"2229\", \"char_count\": \"12977\", \"text\": \"Parsons, C. J.\\nThe plaintiffs secured an injunction which prevented the defendants from selling certain pine plank to any one other than the plaintiffs. Not being permitted to sell to any other, the defendants sold the plank to the plaintiffs for $18 per thousand, with the agreement, however, that such sale should not prejudice their rights in this proceeding. If the plaintiffs paid the defendants as much as they could have obtained from others, although the injunction was improvidently issued the defendants' damages would be merely nominal. But it is found that but for the injunction the defendants could have sold the plank to others for $2 per thousand more than the plaintiffs paid; and as upon the evidence it could have been found that they would have made such sale except for the injunction, the finding that they have been damaged by the issuance of the injunction $2 per thousand upon 544,310' feet, the amount cut on the lot, all of which the plaintiffs received, presents no error of law.\\nIn the present proceeding, the contract alleged by the plaintiffs as the foundation of the proceedings which have been decided against them is immaterial. The measure of damages is not the difference between what the defendants did receive and what they would have received of the plaintiffs under the contract, but the difference between what they did obtain and what they could have received but for the injunction. It has been decided in this case that the defendants could not be compelled to sell the plank to the plaintiffs. New England Box Co. v. Prentiss, 75 N. H. 246. By that decision all parties to the present proceeding are bound. Towle v. Towle, 46 N. H. 431. As the defendants could not be compelled to sell the plank to the plaintiffs, the sum they would have been obliged to accept for it if compelled to so sell it can have no bearing on the question of the damages occasioned by the wrongful prevention of such sale to others. As the defendants had the right to sell to others, they had the right to such price as they could obtain from them. The foundation of this proceeding is the wrong in granting the injunction. That wrong could not be cured by the trial and conclusion in favor of the plaintiffs of the question already conclusively determined against them.\\nThe decision upon demurrer (75 N. H. 246) left open the question whether the plaintiffs could recover damages of the defendants for the breach of an agreement to contract the plank to the plaintiffs. If upon appropriate pleadings the defendants could have recouped such damages in this proceeding, no attempt has been made to do so or to show any damages. Assuming that the defendants, instead of performing a valid contract to sell to the plaintiffs, had sold to others at a higher price, the measure of the plaintiffs' damages would not be the difference between the price agreed and the price the defendants obtained, but the difference between the agreed price and the price the plaintiffs might be obliged to pay others to obtain the same material. Ordinarily this would be the difference between the agreed price and the market price; and as the agreed price was the market price, if there is a market whore the price was established in which such material could be obtained it would seem, as already suggested, that the plaintiffs could supply their wants in the market (75 N. H. 247), and the only ground of damages would be the possible disturbance of their business by delay. But the plaintiffs have had the plank, and claim they could buy and were buying from others at $18 \\u2014 the price they wore willing to pay the defendants. There seems no ground upon which damages could be claimed under the circumstances disclosed.\\nThe defendants were enjoined from selling \\\"any of the plank, lumber, or timber described in said petition to any person.\\\" In the petition the plaintiffs asked for an injunction restraining the defendants from selling the pine plank \\\"or any of the lumber or timber on said Richardson lot to any person.\\\" Naturally, the defendants understood that the injunction, by reference to the petition which mentioned all the lumber and timber on the Richardson lot as the matter to which the injunction should relate, restrained the defendants from selling any of the lumber or timber on the lot. Such is the plain import of the language. Doubtless with their knowledge of the situation, counsel may have advised the defendants that the injunction was broader than the plaintiffs could properly ask for, as probably they advised them that upon the facts the injunction .could not be maintained at all. But the belief of the defendants or their counsel that the plaintiffs were not entitled to the injunction in whole or in part did not authorize them to violate it in any particular. They may not have understood why the plaintiffs thought it necessary to prohibit the removal of any lumber from the lot; but whatever speculations they may have had on this point, they were justified in yielding implicit obedience to the order of the court, and are entitled to recover the loss thereby sustained.\\nThe exceptions to evidence do not require consideration. The damages assessed should be increased by the sum of $237.\\nExceptions overruled.\\nAll concurred.\"}" \ No newline at end of file diff --git a/nh/4501482.json b/nh/4501482.json new file mode 100644 index 0000000000000000000000000000000000000000..d2439677c191b561c5cabb0302dac4bfe96fac91 --- /dev/null +++ b/nh/4501482.json @@ -0,0 +1 @@ +"{\"id\": \"4501482\", \"name\": \"Fogg v. Board of Education of Littleton & a\", \"name_abbreviation\": \"Fogg v. Board of Education of Littleton\", \"decision_date\": \"1912-01-02\", \"docket_number\": \"\", \"first_page\": 296, \"last_page\": \"303\", \"citations\": \"76 N.H. 296\", \"volume\": \"76\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Supreme Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-10T18:52:42.297626+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Fogg v. Board of Education of Littleton & a.\", \"head_matter\": \"Grafton, ?\\nJan. 2, 1912.\\nFogg v. Board of Education of Littleton & a.\\nThe expenditure of school money for the transportation of pupils is a matter within the discretion of the school board; but this discretionary power must be exercised in such manner as will best subserve the interests of education and give to all scholars as nearly equal advantages as may be practicable.\\nA school board cannot properly decline to furnish necessary transportation for a pupil during any part of the school year, and thereby practically deny him the enjoyment of free education, when the granting of such privilege for at least a portion of the time would afford him substantial benefit and would not materially diminish the advantages accorded other scholars in the town.\\nPetition for mandamus, to compel the defendants to furnish some means of education for the plaintiff\\u2019s son, or some means of transporting him to one of the schools maintained in the district. Transferred from the May term, 1911, of the superior court by Pike, J., on the plaintiff\\u2019s exception to the dismissal of the petition.\\nThe plaintiff lives four and one fifth miles from the nearest school, and the defendants decline to convey his son, who is about nine years old. There is but one other scholar in that locality, and she lives upon a different road. If the board were to furnish transportation for the plaintiff\\u2019s boy, it would be for his benefit alone. It is impracticable to maintain a school in the plaintiff\\u2019s district, and the board cannot furnish the transportation desired for any reasonable expense, or without the expenditure' of funds wholly out of proportion to the amount which could properly be expended per scholar in the district, thereby depriving many other scholars of the advantages they now have.\\nEdward, J. Cummings (by brief and orally), for the plaintiff.\\nWilliam H. Mitchell and Smith & Smith (Raymond U. Smith orally), for the defendants.\", \"word_count\": \"3378\", \"char_count\": \"19811\", \"text\": \"Walker, J.\\n\\\"The school board of every district shall provide schools at such places within the district and at such times in each year as will best subserve the interests of education, and will give to all the scholars of the district as nearly equal advantages as may be practicable. They may use a portion of the school money, not exceeding twenty-five per cent, for the purpose of conveying scholars to and from the schools.\\\" P. S., c. 92, s. 1. One contention of the plaintiff is that the last sentence of this statute is mandatory and not permissive, and that upon a true construction of the statute the word \\\"may\\\" should be given the force of \\\"must,\\\" when there are scholars who live at a greater distance from an established school than it is reasonable for them to walk. The argument in effect is that if there is a single scholar who is unable to walk from his home to the nearest school on account of the distance, the school board has no discretion in the matter, but is obliged to transport him to and from school, at an expense, if necessary, not exceeding the statutory limit. It is said that the object of the statute is to provide for such an arrangement of schools in the town-district as will \\\"give to all the scholars of the district as nearly equal advantages as may be practicable.\\\" But this statutory language necessarily implies that the board is invested with a large discretion in the establishment of schools, and that entire equality of privilege in attending school is not required. Manifestly if it were, its attainment would be impossible. The degree of inconvenience which different scholars experience in going to and from school must vary according to the location of their homes. Some must walk a mile or two, while others are only obliged to walk as many rods. It might be said that this is a great inequality of privilege, but no one would deny that it is an inequality that could not be avoided in the present system of town schools. As much inequality of privilege must exist, not alone in this but in many other respects, in providing for public education, it is apparent that a discretionary pownr must be lodged in some one, or in some board of officials, to> determine the numerous questions of convenience and suitability of school advantages, as they arise. But this discretion is not a captious one; it is not equivalent to unlimited power in the matters to which it pertains. In the language of the statute, it is such a discretion \\\"as will best subserve the interests of education\\\" in the town, and as will \\\"give to all the scholars of the district as nearly equal advantages as may be practicable.\\\"\\nThese limits upon the discretionary power of the board, in regard to the times and places for maintaining schools, doubtless also apply in the decision of questions of transportation. In the original statute authorizing the expenditure of money for the transportation of pupils, it was expressly provided that the money should be \\\"expended under the order and at the discretion of the officers charged with the prudential affairs of the district.\\\" Laws 1878, c. 55, s. 4. And the same idea seems to be implied in our present permissive statute upon that subject. But as above suggested, the discretion vested in the school board must be exercised for \\\"the interests of education\\\" and for the \\\"equal advantage\\\" of all the scholars in the town, so far as that \\\"may be practicable.\\\" One question, therefore, presented to the school board of Littleton in reference to the transportation of the plaintiff's son was, whether it was practicable in promoting the interests of education in that town to hire a team and a driver to bring him to school in the morning and to carry him home in the afternoon of every school day during the term of perhaps ten or twelve weeks; in other words, whether the money required for that purpose, if so used, would not so far diminish the facilities for general education in the town as to be deemed impracticable for that reason.\\nIf, for instance, the money required to pay for the transportation of one pupil from a remote part of the district might be used to substantially increase the educational advantages of a hundred other pupils in the town, as by adding q, week or two to the length of the school year, it is evident that the aggregate educational advantages derived from the public-school system in the district would be enhanced by expending the money in that way. It might appear that it was not practicable to furnish transportation for one scholar, when it would occasion a substantial curtailment of school advantages to all the other scholars in the town, because the interest of the public in the intelligence of the people generally is paramount to the special interest or desire of a single individual. The expense of transporting one scholar might be so much in excess of the average expense of educating all other scholars in the district as to result in a gross and unreasonable inequality of expense and a consequent lowering of the degree of efficiency in all the schools in the town. Such a result would not \\\"best subserve the interests of education/' in its public governmental aspect, and for that reason it might be deemed impracticable to expend the money in that way. The pupils' equality of privilege under the statute is limited or modified by its practicability, which involves a consideration of its effect upon the success of the school system in the district as a whole.\\nThe primary purpose of the maintenance of the common-school system is the promotion of the general intelligence of the people constituting the body politic and thereby to increase the usefulness and efficiency of the citizens, upon which the government of society depends. Free schooling furnished by the state is not so much a right granted to pupils as a duty imposed upon them for the public good. If they do not voluntarily attend the schools provided for them, they may be compelled to do so. P. S., c. 93, s. 6; State v. Hall, 74 N. H. 61; State v. Jackson, 71 N. H. 552. While most people regard the public schools as the means of great personal advantage to the pupils, the fact is too often overlooked that they are governmental means of protecting the state from the consequences of an ignorant and incompetent citizenship. \\\"Knowledge and learning generally diffused through a community being essential to the preservation of a free government, and spreading the opportunities and advantages of education through the various parts of the country being highly conducive to promote this end, it shall be the duty of the legislators and magistrates, in all future periods of this government, to cherish the interest of literature and the sciences, and all seminaries and public schools.\\\" Const., art. 82 [83]. In accordance with this injunction, the state has always maintained for its protection and at great expense a common-school system which long ago became one of the most important governmental agencies.\\n\\\"The statute in question forms a part of the laws relating to our common-school system, and must be read as a part of those laws. The duty of providing for the education of the children within its limits, through the support and maintenance of public schools, has always been regarded in this state in the light of a governmental duty resting upon the sovereign state. It is a duty not imposed by constitutional provision, but has always been assumed by the state; not only because the education of youth is a matter of great public utility, but also and chiefly because it is one of great public necessity for the protection and welfare of the state itself. In the performance of this duty, the state maintains and supports at great expense, and with an ever watchful solicitude, public schools throughout its territory, and secures to its youth the privilege of attendance therein. This is a privilege or advantage, rather than a right in the strict technical sense of the term.\\\" Bissell v. Davison, 65 Conn. 183, 190, 191. See, also, Learock v. Putnam, 111 Mass. 499, 501.\\nIf, as seems to be clear, the fundamental purpose of the public-school system is the protection and improvement of the state as a political entity, the school board of Littleton may have believed that the interest of the public in education as a whole in that town would be unduly or unreasonably sacrificed or retarded by furnishing transportation for the plaintiff's son for the entire school year, or for a whole term. In view of this public or governmental interest, they may have found that it was not \\\"practicable\\\" to incur the expense of such transportation. If a pupil's home is located several miles from a school, in a rough, mountainous, and uninhabited part of the town, it is not probable that the legislature intended that a considerable part of the public-school money should be expended in providing daily conveyance for him to attend school. The inconvenient location of his home is his misfortune, which the state does not attempt to overcome for his benefit by substantially reducing the efficiency of all the schools in town. The rule of equality of advantage in his case prescribed by the legislature would be impracticable, unless the interest of the public in the education of its youth is to be subordinated to the interest of a single individual.\\nIn Massachusetts, towns are authorized by section 15, chapter 25, Revised Laws, to appropriate money \\\"for conveying pupils to and from the public schools, . . . the same to be expended by the school committee in its discretion.\\\" In Newcomb v. Rockport, 183 Mass. 74, it was held that under this statute a town is not obliged to make such an appropriation, and if it does, the school committee is not bound to act. In Davis v. Chilmark, 199 Mass. 112, the same result was reached. The plaintiff lived with his family on an island upon which no school was kept, situated about four miles from the island of Martha's Vineyard, where there were adequate school accommodations for the plaintiff's children. The court not only held that the town was not obliged to maintain a school on the island inhabited by the plaintiff, but that it was not obliged to furnish transportation for his children to Martha's Vine yard for school purposes. What arrangement, if any, should be made for their education was deemed to be a matter within the discretion of the school committee, as appears from the remarks of the court: \\\"There are no regular means of communication between the island upon which he has fixed his residence and the main island upon which the public schools of the town are situated; and such communication is often difficult and sometimes impossible. Doubtless the peculiar circumstances here existing might appeal to the discretion of the town or of the school committee, and lead them to make such arrangements as might be found to be reasonably practicable, with perhaps some sacrifice also on the part of the petitioner himself, to facilitate the attendance of his children upon the public schools. . . . But we can only pass upon the question of law raised by the report. Petition dismissed.\\\"\\nIn Vermont, a similar result has been reached under section 6, No. 20, Acts of 1892, which provides that \\\"said schools shall be within the limits of said town, and at such places, and held at such times, as in the judgment of the board of directors will best subserve the interests of education and give all the scholars of the town as nearly equal advantages as may be practicable; and said school board may use a portion of the school money, not exceeding twenty-five per cent thereof, for the purpose of conveying scholars to and from such schools.\\\" In construing this statute, the court say in Carey v. Thompson, 66 Vt. 665, 666: \\\"The directors are authorized by this provision to use a portion of the school money, not exceeding a certain per cent, for the transportation of scholars. The permissive form of the provision is not conclusive as to the nature of the enactment. It is to be construed as imposing an imperative duty if such was the purpose of the legislature. That purpose is to be gathered from the language of the act, the nature of the subject-matter, and the ends sought to be accomplished. The end sought here is equality of school privileges; but the statute clearly recognizes the fact that entire equality is impossible of attainment, and that much must be left to the discretion of those in whose hands the administration of the law is placed. The differences in the number of scholars to be provided for, in the means available for the various demands of the work, in the proximity of schools and the condition of roads, and in the ages and strength of scholars, are such as to induce a belief that absolute rules would be more likely to work injustice than the exercise of official discretion. We think it was obviously the intention of the legislature to leave the question of transporting scholars to the discretion of the school directors.\\\" It was alleged in the petition for mandamus that the directors \\\"have neglected to support a school within two and one fourth miles of the relator's house, and have refused to use any part of the school money of the town for the purpose of conveying his children to and from any school, and have made no attempt whatever to give his children school advantages equal to those enjoyed by the other scholars of the town.\\\" These facts were substantially admitted in the answer, but the petition was dismissed for the reason above suggested.\\nThe conclusion cannot be successfully resisted that the plaintiff's son has no absolute right under the statute to be carried to and from school at public expense, though the distance may be too great for him to walk. Both principle and authority support that result. It is a privilege or advantage which may be accorded to him in the discretion of the school board, governed by a due consideration of the interests of the public in the success of the common-school system and the equality of privilege granted to the individual, so far as it is reasonably practicable. The school board cannot legitimately determine the question without taking into consideration these two important facts; one alone cannot furnish the rule for their guidance to the exclusion of the other. And any action on their part upon the subject of the transportation of pupils which shows they have disregarded them or unduly minimized their importance would be illegal and subject to revision. If the expense of transporting a single pupil for some part of the school year would afford him some substantial benefit and at the same time would not unreasonably diminish the schooling advantages of the other pupils in the district, the expense should be incurred. The board could not legitimately decline to furnish him any transportation under those circumstances.\\nAs we understand the reported facts upon which the court denied the petition, the defendants' refusal to furnish transportation for the plaintiff's son was based upon the ground that the expense incident to such transportation would materially diminish the general effectiveness of the town system of education by reducing the amount of money otherwise available for that purpose. But in order to equalize school privileges so far as may be practicable, the legislature has plainly indicated a purpose that a part of the school money should be used for transporting pupils. \\\"One general purpose of the law abolishing school districts was to gather the children together into larger schools where they might receive better instruction for longer terms. The conveyance was intended as a substitute for school accommodations in a neighborhood where the scholars were too few to render the maintenance of a separate school reasonable or profitable.\\\" State v. Hall, supra, 63. Money expended for the conveyance of a pupil, which does not unduly or substantially diminish the general school advantages of the town, should be so expended; for that was the evident intention of the legislators in providing for such an equality of school advantages as is practicable.\\nThe plaintiff lives a little over four miles from the school nearest to his house. It is conceded that it is unreasonable to expect or require his boy to walk that distance to attend school, and that the plaintiff is not obliged to convey him to school. The only objection raised by the defendants to providing conveyance as authorized by the statute is the expense. But it is apparent that the expense for a few weeks during the year would not substantially decrease the schooling advantages of all other scholars in the town, while it would afford the plaintiff's son some opportunity for acquiring an education. It may not be expedient to afford him advantages equal to those enjoyed by other scholars, but there is no valid reason why he should not be accorded such advantages as may be practicable. The action of the board, under the facts disclosed by the case, in practically denying him the means of attending a public school for any part of the school year, is unauthorized and illegal. It was evidently the result of giving too much weight to the interests of education in general, or too little to the equality of advantages granted to the individual scholars, or to both errors combined. As above suggested, both these elements must be duly considered by school boards in determining the question of the transportation of pupils. We are of the opinion that the mere matter of the expense does not justify the board in refusing to furnish any transportation for the plaintiff's son during any part of the school year.\\nIt may be that the petition ought to have been brought in the name of the son instead of the father; if so, the defect can be remedied by an amendment.\\nException sustained.\\nAll concurred.\"}" \ No newline at end of file diff --git a/nh/4504755.json b/nh/4504755.json new file mode 100644 index 0000000000000000000000000000000000000000..e1eba2bdfedb2a43eec419dd18f050c5f648798c --- /dev/null +++ b/nh/4504755.json @@ -0,0 +1 @@ +"{\"id\": \"4504755\", \"name\": \"Swain v. Pemigewasset Power Co.\", \"name_abbreviation\": \"Swain v. Pemigewasset Power Co.\", \"decision_date\": \"1912-11-06\", \"docket_number\": \"\", \"first_page\": 498, \"last_page\": \"503\", \"citations\": \"76 N.H. 498\", \"volume\": \"76\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Supreme Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-10T18:52:42.297626+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Swain v. Pemigewasset Power Co.\", \"head_matter\": \"Merrimack, )\\nNov. 6, 1912.\\nSwain v. Pemigewasset Power Co.\\nAt common law, a riparian owner is entitled to a reasonable usufruct of the water of a stream passing through or adjacent to his premises, or of the power it is capable of developing in consequence of the natural configuration of the bed of the stream upon or opposite his land, and may maintain an action against a lower proprietor for the fair rental value of power appropriated by a wrongful flowing back of the water.\\nThe injuries to \\u201cland\\u201d for which damages may be assessed under the flowage act are not merely such as render the soil less capable of cultivation or physical occupation, but include all infringements upon the rights incidental and appurtenant to the full exercise of landed proprietorship.\\nUpon a petition for the assessment of damages under the flowage act, a riparian owner may recover compensation for the impairment of undeveloped and unutilized water-power located upon his land, which results from a flowing back of the stream by a lower proprietor.\\nThe provision of the flowage act which gives to the owner of an existing mill a preferential right in the power of the stream upon which his establishment is located, on the ground of prior appropriation,, does not relieve him of the obligation to indemnify another riparian proprietor for damages caused by a flowing back of the water.\\nThe measure of damages for a taking of undeveloped water-power by flowing back the water of the stream is the difference in the value of the plaintiff\\u2019s land before the flowage and after.\\nPetition, for the assessment of damages under the flowage act. The question raised by the demurrer is whether the plaintiff may recover damages for the flowing out or taking of the head or falls of the stream located upon her land, but which she has neither utilized nor developed. Transferred without a ruling from the October term, 1911, of the superior court by Pike, J.\\nGeorge W. Stone and Martin & Howe {Mr. Howe orally), for the plaintiff.\\nNiles & Upton and liemick & Jackson {Mr. Upton orally), for the defendant.\", \"word_count\": \"2330\", \"char_count\": \"13333\", \"text\": \"Walker, J.\\nThe rights of riparian owners at common law to a beneficial use of the water of the river or stream, passing through or adjacent to their lands, are not open to serious doubt. They are entitled to a reasonable usufruct of the water, or of the power it is capable of developing in consequence of the natural configuration of the bed of the stream opposite their respective lands. If at that place there is such a fall in the flow of the stream that it is capable of being utilized for the development of mechanical power by the erection of a dam and the usual appliances used in connection therewith, the riparian owner has a valuable interest in that natural condition of the stream, which is incident to his ownership of the land, extending ordinarily to the thread of the stream. In the absence of the mill act, the doctrine of the recent case of Electric Light Co. v. Jones, 75 N. H. 172, would seem to establish the proposition that he would be entitled to maintain an action for damages caused by the defendant's wrongful appropriation of his water-power. In that case it was held that a mill-owner who wrongfully flows back the water of a stream, and thereby obtains the use of power to which a proprietor above him is entitled, is liable to the latter for the fair rental value of the power so taken and used, although the latter was not using the power opposite his land and had no intention of doing so. The capacity of the land, in connection with a reasonable use of the water flowing over it, to generate power upon his premises was deemed to constitute a valuable right, which he could not be wrongfully deprived of without suffering substantial damage, for the recovery of which an action would lie against the wrongdoer. That this conclusion is a sound one is evident both upon principle and authority. Cowles v. Kidder, 24 N. H. 364; Wilder v. Clough, 55 N. H. 359; Concord Mfg. Co. v. Robertson, 66 N. H. 1, 19; Winnipiseogee etc. Co. v. Gilford, 67 N. H. 514; State v. Company, ante, 373, 376.\\nAs at common law the defendant would be liable for the damages caused by its setting back the water of the river and retarding its flow over the plaintiff's land, the question arises whether the statute known as the flowage act, originally passed in 1868 (Laws 1868, c. 20; P. S., c. 142, ss. 12-17), has rendered such loss damnum absque injuria, when the act of retarding the flow of the water is no longer wrongful, but authorized by the statute for the promotion of manufacturing establishments. It is unnecessary to say that this is a question of legislative intention. Does the language of the act, legally interpreted, justify or require such a conclusion?\\nSection 12, chapter 142, Public Statutes, provides that \\\"any person or corporation authorized by its charter so to do may erect and maintain on his or its land, or upon land of another with his consent, a water-mill, and a dam to raise the water for working it, or for creating a reservoir of water, and for equalizing the flow of the same, to its use, and to the use of the mills below, upon and across any stream not navigable, upon the terms and conditions, and subject to the regulations, hereinafter expressed.\\\" Section 13 is as follows: \\\"If the land of any person shall be overflowed, drained, or otherwise injured by the use of such dam, and the damage or injury shall not, within thirty days after due notice thereof, be satisfactorily adjusted by the party erecting or maintaining the dam, either party may apply by petition to the supreme [superior] court . to have the damage that may have been or may be done thereby assessed.\\\" It is conceded that the defendant caused the water of the river to flow back in the exercise of the power conferred by section 12, and that the damages it is compelled to pay the plaintiff therefor, if any, are those contemplated in section 13. Dolbeer v. Company, 72 N. H. 562, 563. If the plaintiff's \\\"land\\\" has been \\\"injured by the use\\\" of the de fendant's dam, the defendant's demurrer should be overruled and the damages should be assessed.\\nIf it is assumed that the damages provided for in the statute are confined to injuries to \\\"the land,\\\" there is no purpose apparent in the statute to still further limit them to injuries which render the land less capable of cultivation or of physical occupation. \\\"Land\\\" is not used in a narrow or specially restrictive sense in the statute. It applies not merely to land as distinguished from water, but to land with all that is incidentally appurtenant to the full exercise of ownership. If the land is adapted by nature to some special or peculiar use, ownership of the land includes the right to devote it to that use. The damages the legislature had in mind were such as result from depriving the landowner of the ability to use his land to the best advantage in view of its location and natural adaptability. The plaintiff's right of landed ownership was as much infringed and appropriated by the defendant, who deprived her of the use of the water of the river, as it would have been if the water had overflowed her field or garden, or had flooded her dwelling-house; and the damage in the decreased value of her land might be much greater. Damage or injury to land, in a legal as well as in a practical sense, means an infringement of the owner's right to the use and possession of it. \\\"If the right of indefinite user is an essential element of absolute property or complete ownership, whatever physical interference annuls this right takes 'property' \\u2014 although the owner may still have left to him valuable rights (in the article) of a more limited and circumscribed nature. He has not the same property .that he formerly had. Then he had an unlimited right; now he has only a limited right. His absolute ownership has been reduced to a qualified ownership. Restricting A's unlimited right of using one hundred acres of land to a limited right of using the same land may work a far greater injury to A than to take from him the title in fee simple to one acre, leaving him the unrestricted right of using the remaining ninety-nine acres. Nobody doubts that the latter transaction would constitute a 'taking of property.' Why not the former?\\\" Eaton v. Railroad, 51 N. H. 504, 511, 512.\\nIt is clear, then, that the petition alleges a taking by the defendant of the plaintiff's property in land \\u2014 a taking from the plaintiff of her common-law right of using, whenever she might choose, the power of the stream as an incident of her ownership of the land. The land without this power might be of little value, while with it, it might be of very great value. The principal value of the plaintiff's real estate might consist in its natural availability for the development of water-power. To deprive her without- her consent of this element of the value of her land, whether rightfully or wrongfully under the law, would be to deprive her pro tanto of her land; for the ownership of land in fee simple without the right to enjoy its use is a palpable contradiction of terms. It is inconceivable that the legislature intended to authorize one riparian owner to deprive another of the principal element of value in his land without compensation therefor; or that when it made it a condition of the right of \\u00f1owage that damages should be paid for the injury to \\\"the land\\\" thus \\\"overflowed, drained, or otherwise injured by the use of such dam,\\\" the talcing and appropriation of the most valuable part of the landowner's interest in his real estate should be deemed damnum absque injuria when it consisted of undeveloped water-power. The language of the statute does not require such a construction. \\\"Land\\\" is there used in the sense of property in land, for the taking of which damages must be paid. Such, at least, is not an unreasonable construction of the word. This fact, in connection with the practical absurdity and injustice of confining the meaning within narrow, restricted, and unusual bounds, demonstrates that the legislature intended that the taking of undeveloped water-power by virtue of the statute should be regarded as an injury to the adjoining landowner's property in land, for which compensation must be made. Dolbeer v. Company, supra. Whether the statute is construed as authorizing the exercise of the power of eminent domain (Great Falls Mfg. Co. v. Fernald, 47 N. H. 444; Ash v. Cummings, 50 N. H. 591; Light & Power Co. v. Hobbs, 72 N. H. 531, 533), or of the power of regulating the rights of riparian owners (Head v. Company, 113 U. S. 9), the result in this case is the same. In either view, compensation must be made for depriving one of his right of property in land, for such is the evident meaning of the statute. Knowing that a riparian proprietor might have valuable rights in the fall of the stream as an incident to his ownership of the land, the evidence is slight and somewhat visionary that the legislature attempted to authorize another riparian owner to deprive him of those rights without also providing for his reimbursement. Whether a statute of that import could be sustained need not be considered, since the statute in question was not intended to have that effect.\\nCases that reach a different result, like Fuller v. Company, 16 Gray 43, and Cary v. Daniels, 8 Met. 466, cannot be followed in this state, where the intention of the legislature, ascertained as a fact from competent evidence, must be given full effect, and where it is in effect decided that at common law undeveloped waterpower is a property right inherent in the ownership of the adjacent land. Electric Light Co. v. Jones, supra. Nor does the fact that the defendant has a statutory right to set the water back upon the plaintiff's land because of its prior appropriation of the power of the river upon its land (McMillan v. Noyes, 75 N. H. 258) indicate a purpose on the part of the legislature to relieve it of the obligation to indemnify the plaintiff for depriving her of her valuable right to the reasonable use of the water opposite her land \\u2014 a right incident to her ownership of the land. No doctrine of reasonableness arising from such prior appropriation transfers A's property, whether used by A or not, to the possession and use of B without compensation. In order to complete and protect its right of flow-age, the defendant must pay the plaintiff for her property which it has appropriated.\\nIt is urged in argument in behalf of the defendant that it would be difficult to assess the plaintiff's damages, that they are from the nature of the case problematical and visionary, and that their assessment would for that reason be impracticable. But without attempting to point out what evidence would be and what evidence would not be competent and admissible upon that question, we can discover no such inherent difficulty in reaching a conclusion upon it, that the amount of her damages could not be reasonably determined by the tribunal charged with that duty. The practical question would be: how much less was her land worth after the flowage than it was before? Wright v. Company, 75 N. H. 3, 6; Electric Light Co. v. Jones, supra, 182; Philbrook v. Company, 75 N. H. 599. The demurrer should be overruled.\\nCase discharged.\\nAll concurred.\"}" \ No newline at end of file diff --git a/nh/4508816.json b/nh/4508816.json new file mode 100644 index 0000000000000000000000000000000000000000..edab92c1e92d45a065eb8659814118b400fe3715 --- /dev/null +++ b/nh/4508816.json @@ -0,0 +1 @@ +"{\"id\": \"4508816\", \"name\": \"Samuel E. Richardson, Adm'r, v. Connecticut Valley Lumber Co.\", \"name_abbreviation\": \"Richardson v. Connecticut Valley Lumber Co.\", \"decision_date\": \"1914-02-03\", \"docket_number\": \"\", \"first_page\": 187, \"last_page\": \"190\", \"citations\": \"77 N.H. 187\", \"volume\": \"77\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Supreme Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-10T17:10:34.289182+00:00\", \"provenance\": \"CAP\", \"judges\": \"Plummer, J., did not sit: the others concurred.\", \"parties\": \"Samuel E. Richardson, Adm\\u2019r, v. Connecticut Valley Lumber Co.\", \"head_matter\": \"Co\\u00f6s,\\nFeb. 3, 1914.\\nSamuel E. Richardson, Adm\\u2019r, v. Connecticut Valley Lumber Co.\\nA servant cannot recover for injuries resulting from his attempt to thaw dynamite before an open fire, when the testimony of his witnesses discloses that he was warned by his immediate superior to keep the explosive away from the blaze and it does not appear that the master directed or acquiesced in the method adopted.\\nCase, for personal injuries. The plaintiff\\u2019s intestate, Joseph Valley, while in the employ of the defendants, was killed by an explosion of dynamite which he was attempting to thaw before an open fire. The dynamite ignited, and Valley took the burning fragment in his hands for the purpose of extinguishing the flame. An explosion occurred, causing injuries from which he died shortly afterward.\\nThe plaintiff alleged that the defendants were negligent in failing to employ suitable fellow-servants and to furnish suitable appliances for thawing, dynamite. The court (Pike, J.) ruled that there was no evidence to warrant a submission of the case to the jury on either ground, but submitted the question of the defendants\\u2019 negligence in failing to warn Valley of the danger of thawing the dynamite before an open fire. The defendants\\u2019 motions for a. nonsuit and the direction of a verdict in their favor were denied, subject to their exceptions. The jury having disagreed, the defendants filed a bill of exceptions which was allowed. The evidence was made a part of the bill of exceptions. Transferred from the April term, 1913, of the superior court.\\nBurritt PL. Hinman and Sullivan & Daley (Mr. Hinman orally), for the plaintiff.\\nDrew, Shurtleff & Morris (Mr. Morris orally), for the defendants.\", \"word_count\": \"988\", \"char_count\": \"5819\", \"text\": \"Parsons, C. J.\\nThe plaintiff's intestate was killed while attempting to thaw frozen dynamite by an open fire. The dynamite took fire, and he, against the expostulation of a fellow-workman who-called his attention to the danger of explosion, took the burning piece in his hand, saying it would not explode unless given a sudden jar. The fragment, however, did explode, and he received injuries from which he died.\\nIf the explosion of the dynamite was due to a jar received in handling it, that the deceased knew and assumed the risk is apparent. There was evidence, however, that while dynamite may burn without explosion, it may explode from the action of fire without, concussion. Upon this evidence, despite the twenty years' experience in the use of dynamite claimed by Valley and his successful management of it in a large number of cases in the course of his employment by the defendants, it could be found Valley did not know or appreciate all the perils connected with burning dynamite; and the questions would be, whether he was killed by a peril of which he knew and the risk of which he took, or by the one of which he did not know, and, if the latter could be found without evidence, whether the defendants are in fault for not specially warning him. These questions are material if the risks were encountered in the course of Valley's employment.\\n\\\"A servant who voluntarily, without the direction or acquies \\u2022cence of the master, engages in work he was not hired to perform, assumes the risk of injury from dangers peculiar to such service.\\\" McGill v. Company, 70 N. H. 125; Parent v. Company, 70 N. H. 199, 200. If it could be found that by express contract, or by implication from the general method of doing business, or by acquiescence in the methods adopted by Valley, the defendants employed Valley to thaw dynamite by an open fire, recovery could be had for injuries received by Valley in such employment if he was justifiably ignorant of the perils attendant upon the operation of which the defendants negligently failed to inform him \\u2014the burden being on the plaintiff to establish Valley's ignorance without fault, the defendants' failure to warn, and Valley's death from the risk he did not assume. Burnham v. Railroad, 68 N. H. 567, 568; Hicks v. Company, 74 N. H. 154, 157.\\nBut it is not necessary to consider the possible existence of evidence sufficient to sustain the burden on these issues, for there is no evidence that Valley was employed to thaw dynamite by an open fire. On the contrary, the uncontradicted evidence is that thawing dynamite in this way was no part of the service for which Valley was employed. The plaintiff's evidence was that Murphy, Valley's immediate superior, told him to be careful and keep the dynamite away from the fire, and that a pail was provided for thawing it by means of warmed water; while the defendants' evidence was that Valley was repeatedly directed not to thaw it by an open fire, but to use the pail, and was expressly warned of the danger of explosion from fire. If the .jury were at liberty to disbelieve the defendants' witnesses as to the manner in which he was employed to thaw dynamite and the instructions given him as to the danger from fire, their conclusion that the witnesses were testifying falsely did not transform the negative evidence into affirmative proof that an open fire was the method the defendants authorized Valley to use, or that they acquiesced in such use, or that they failed to inform him of the danger.\\nAs upon the plaintiff's evidence Valley was instructed to keep the dynamite away from the fire, in the absence of evidence of an exception when thawing was necessary and in the presence of evidence that appliances for thawing in another way were provided, it cannot be found the defendants employed Valley to thaw it in this way. Not directing or authorizing such process, or acquiescing in its use, there was no occasion for warning as to its perils, which the defendants' evidence, if believed, establishes were fully explained to Valley.\\nExceptions sustained.\\nPlummer, J., did not sit: the others concurred.\"}" \ No newline at end of file diff --git a/nh/4554856.json b/nh/4554856.json new file mode 100644 index 0000000000000000000000000000000000000000..a807330f5776a22292dd01da70c5c520f3f0aff5 --- /dev/null +++ b/nh/4554856.json @@ -0,0 +1 @@ +"{\"id\": \"4554856\", \"name\": \"Reynolds v. Boston and Maine Railroad\", \"name_abbreviation\": \"Reynolds v. Boston & Maine Railroad\", \"decision_date\": \"1862-06\", \"docket_number\": \"\", \"first_page\": 580, \"last_page\": \"593\", \"citations\": \"43 N.H. 580\", \"volume\": \"43\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Supreme Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-10T18:19:48.082886+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Reynolds v. Boston and Maine Railroad.\", \"head_matter\": \"Reynolds v. Boston and Maine Railroad.\\nA general exception to the charge of the court is not sustainable. Exception should be taken to the particulars objected to.\\nIt is not necessary for the party stopping goods in transitu, to show that the consignee failed after the contract. It is sufficient if his failure becomes known after the sale.\\nAny agent, authorized to act for the consignor, either generally or in relation to the consignment in question, may stop goods in transitu, without any authority to adopt that particular measure.\\nIn case of questions arising, the carrier has the right to a reasonable time to ascertain the facts, and the agent to produce his authority and to furnish an indemnity.\\nThe right of stoppage terminates only with an actual delivery, unless the carrier consents to hold the goods for the consignee, or wrongfully refuses to deliver them.\\nA notice to the carrier not to deliver the goods is enough ; a demand of delivery is not necessary.\\nDirect proof of insolvency is not necessary; it may be proved by circumstances.\\nTrover, for twenty sewing-machines, of the value of $500.\\nThe plaintiff testified that he was a machinist, living at Dover; that in 1860 he manufactured-sewdng machines ; that he received a letter purporting to he from D. Murcheson & Go.; subsequently a man by the name of White, who said he belonged to that firm, purporting to do their business at No. 4, India wharf, Boston, appeared at Dover, and negotiated for twenty machines, at $25 each. He says, \\u201c I consented to a discount of four per cent, and to take one half cash; the balance in a check at thirty days. They were to be delivered in Boston, to be sent there by railroad, and to be paid for on delivery. They were delivered at the depot of the defendants, in Dover, on the evening of the 15th of October, and W. Tredick gave his receipt to the plaintiff as follows:\\n\\u201cReceived of O. L. Reynolds, at the depot of the Boston and Maine Railroad, to be forwarded by railroad to Boston, Mass., the following articles: namely, 14 cases sewing-machines, marked [M] M Houston, Texas, care D. Murcheson & Co., Boston, Mass. W. Tredick.\\nDover, N. H., Oct. 15, 1860.\\u201d\\nOn the same day I made a bill of sale of said machines, as follows:\\n\\u201cMessrs. D. Murcheson & Co., to O. L. Reynolds, Dr.\\n1860, Oct. 15. To 20 new style ne plus ultra double thread sewing-machines, at $25 each, $500.00\\nDiscount for cash, 4 per cent, 20.00\\n$480.00\\nReceived pay, O. L. Reynolds.\\u201d\\nOn the evening of the same day I wrote to Messrs. Niles & Go., expressmen, the following instructions, which were on the same paper as the bill of sale:\\n\\u201cMessrs. Niles & Co., Gentlemen \\u2014 Above please find bill sewing machines forwarded to Messrs. D. Murcheson & Co., No. 4, India wharf, Boston, Mass., with railroad receipt. Messrs. D. Murcheson & Co. will give you cash $240, and check $240, at thirty days, for the balance, which you will be kind enough to bring to me to-morrow evening, and oblige yours, &c. O. L. Reynolds.\\nDover, Oct. 15, 1860.\\u201d\\nHe testified that on the morning of the 16th he saw Mr. Niles at the depot, before the train started, and gave him the bill for collection against Murcheson & Co., and gave him verbal directions to call early upon said firm, and collect the bill, and see that the machines were not delivered, if possible, until he got his pay. He said he expected White to pay the freight, and that he had never received a dollar for his machines, nor their return, nor has he been able to find D. Murcheson & Co.\\nD. Niles testified that he took the receipt and bill for collection to Boston on the 16th, and gave them to his man, Carleton, for collection. That Carleton returned them to him about 11 o\\u2019clock A. M., without money, or cheek; that he, in the afternoo'n of the same day, about fifteen minutes before 3 o\\u2019clock, taking the train at 3 for Dover, directed Otis Robinson, who was one of the men in his employment, to go down to the freight depot of the defendants, and tell the men there to hold on to the machines till he could see Reynolds and bring word the next morning. His train usually arrived at Boston between 8 and 9 o\\u2019clock, and returned at 3 p. m.\\nRobinson testified that, upon receiving directions from Niles, he, about 3 o\\u2019clock of the same afternoon, went first to the delivery clerk of the freight department, and inquired about the machines; that he was informed by the clerk that they had arrived that day, and that the parties had come for them, but they had not been delivered. - He said the parties seemed to be in a great hurry to get them, and that they had paid the freight on them, and got their delivery check. He said he could not deliver them, as there were other things in the way. He would have the things removed, and be ready to deliver the machines at 5 o\\u2019clock that afternoon. I told him Mr. Reynolds had sent the bill for collection by Niles & Co., and that the parties had agreed to pay half in money and half in a note for thirty days; but they would not pay the money. Mr. Niles wanted him to hold on to the machines till he could hear from Dover. He said he could not do any thing about it; I might go into the office. I then immediately called on Mr. Pattee, the brother of the delivery clerk, who had the care of the inside freight office, and told him in substance as I had before stated to his brother, and of the request of Mr. Niles. He said he could not do any thing about it, but I had better go over and see Mr. Merriam, the master of the freight department. I then went to him and told him my errand, that Reynolds of Dover had sent a lot of machines to a firm in Boston, and also a bill for collection by Niles & Co.; that the parties had agreed to pay half in money and half in a note; that they would not do it; that they would not pay but a very small sum of money; that Niles & Co. would not give up the papers, or settle with them, unless they complied with the terms; that Mr. Niles wanted them to hold on to the machines till he could hear from Dover, or from him, I am not certain which. I think Merriam asked me if they had paid their freight. I told him they had, and were coming after the machines at 5 o\\u2019clock. He said if they had paid their freight and got a check he did not know as he had any right to hold the machines. He asked me the amount of the bill, and I told him. He said he did not see as the machines could be held without process of law, which could-be taken just as well after they were delivered as before. I told him I knew nothing about that, but Mr. Niles wanted me to make the request I had made of him. Mr. Merriam asked me if I did Mr. Niles\\u2019 work. I told him I did. He asked me for no papers. The conversation was about fifteen or twenty minutes past 3 o\\u2019clock p. m., of the 16th of October. The third interrogatory to Robinson was as follows: \\u201c Hid Mr. Merriam request you to go and see Mr. Niles in regard to the matter, and get authority ? Answer. I think he told me I might tell Mr. Niles about it. I told him Mr. Niles had gone to Hover. I did not have the papers in my possession. Mr. Merriam told me the Railroad would be glad to do all they could for us, but he did not see as they could do any thing without getting themselves into trouble.\\u201d\\nThe delivery check referred to was as follows :\\n\\u201cBoston, Oct. 16,1860.\\nReceived, in good order, of the Boston and Maine Railroad Co., consigned to H. M. & Co., from Hover; namely,\\n14 bos machines.\\nHelivered by order of A.\\nH. Murcheson & Co.,\\nBy White.\\u201d\\nHpon this evidence the defendants moved for a nonsuit, but the motion was overruled.\\nMr. Pattee testified for the defendants. He said he was freight cashier for them. He recollected of some one making inquiry, the same afternoon the machines arrived in Boston, if the machines could not be detained.- The freight train'usually arrives at Boston about noon. The freight had been paid on the machines when inquiry was made by the man of me. The freight bill was $3.71. He showed the way-bill. He sent the applicant to Mr. Merriam, the freight agent, for further information.\\nW. J. Merriam says he was freight agent for 1860, and since. On the 16th of October, 1860, a young man came to my office and told me that Mr. Niles had sent him to request me to stop some sewing-machines. I asked him if the freight had been paid. He said it was, and that the parties would soon be there after the goods. I told him I thought he was too late \\u2014 should be glad to help him if I could. I asked him whether, if I would do any thing for him, he would hold us harmless. He said he had no authority to bind any one, and refused to bind himself. I advised him to telegraph at once to Hover for authority; told him he could get possession by legal process in the hands of others, as well as ours. He said he worked for Niles. He was a teamster \\u2014 a laboring man; rather a young, ordinary looking man. I did not feel willing to act on his representations. White and one or two others had been there after the goods. They blustered about considerably, complaining because the goods were not delivered to them. I delivered the machines myself at 5 p. m.' Saw the receipts signed D. Murcheson & Co., by a man calling himself White. I asked Robinson to indemnify us, so that we might have some one to lean upon. I never saw Niles until yesterday.\\nThe plaintiff also showed a special demand upon the president of the railroad, after the alleged conversion, but before the commencement of the suit.\\nThe court told the jury that they must find either a general or special property in the plaintiff, in the goods he claimed, at the time of the alleged conversion. The most material point of inquiry was, whether the delivery of the machines to the vendees by the defendants constituted a wrongful conversion of them.\\nThe plaintiff contended that the contract between him and Murcheson & Co. was executory or conditional, vesting no property in the vendees until the payment of the price of the machines at Boston. The jury might regard the contract as having been so far perfected, by the delivery of the machines to the defendants, as common carriers, at their depot at Dover, as would pass the property to the vendees. But the contract was of such a nature as to give the plaintiff a right to exert his equitable lien, or to obtain the benefits of the law of stoppage in transitu. To have this right or privilege, he must satisfy the jury that the goods were delivered on a credit, and they must be satisfied also of the insolvency of the vendees, and that this was not known to the plaintiff at the time of the bargain with White in behalf of the firm. If the plaintiff knew of the insolvency of the vendees at the time of the bargain, he could not maintain this action. The jury would examine the evidence, and see whether the plaintiff had knowledge of the insolvency of the vendees, prior to the day of delivery at Boston. Having obtained knowledge of their insolvency, or of their failure to meet their contract, he, or his agent, might take immediate measures to reclaim his property by 'stopping its delivery to the vendees. This right continued in the plaintiff up to the time of its filial delivery, or up to the time when the vendees acquired complete dominion over the machines. The plaintiff was bound to the exercise of due care and diligence on his part, and to show that he seasonably, or within a reasonable time, notified or requested the defendants, or their officers or servants, who had then the immediate charge or custody of the goods, not to deliver them to the vendees. The defendants had a right to require due authority in him who gave the notice. The plaintiff had a right to delegate his authority to Niles, and it was for the jury to find whether he had acted within the scope of his agency. In this case it was competent for Niles to delegate his authority to another, and the jury were to inquire if Robinson had properly executed his trust. The payment of the freight and the delivery of the check could not legally prevail against the request of the owner to hold on and not deliver the machines. When the law imposes duties, it gives a reasonable time within which they may 'be discharged. In cases of doubt and conflict of title the defendants, as public carriers, were entitled, before delivery to the vendor or vendee, to indemnity from loss. In this ease, after notice, the defendants were put upon inquiry, and were bound to the exercise of due diligence in prosecuting this inquiry. The freight officer might have consulted with the superintendent of the road, or the more competent legal officer, the president of the corporation; or might have required more or better evidence of title from the vendees, before delivery of the machines. That the law would give the plaintiff:\\u2019 a reasonable time i-n which to furnish his requisite indemnity, and in the mean time would protect the public carrier from harm, and always while the parties are in the faithful discharge of duty. \\\"Was it unreasonable, in this case, to ask for delay until the next day, for the action of the vendor in the premises? And did the defendants exercise due diligence, or due care and caution, in delivering the goods in the manner and at the time they did? If the jury found the defendants managed wrong, and to the prejudice of the plaintiff\\u2019s rights, in surrendering the property, the plaintiff would be entitled to maintain this action for the value of the goods and interest from the time of the conversion. As the plaintiff\\u2019 made a special demand upon the defendants some time after the 16th of October, 1860, the jury might cast interest from the day of the demand.\\nThe defendants requested the court to charge the jury that the plaintiff was not entitled to maintain this action until he first paid or tendered to the defendants the amount of the freight from Dover to Boston. The court gave the instruction that the plaintiff was not bound to pay or tender the freight money, it having been paid by the vendees.\\nThe jury returned a verdict for the plaintiff, and the defendants excepted to the charge of the court, and moved for a new trial.\\nChristie Kingman, for the defendants,\\ncontended.that the only right which the plaintiff\\u2019 could exercise over the goods was that of stoppage in transitu, there being no fraud shown in- the contract, and the sale being unconditional. In order to entitle the plaintiff to stop the goods in transitu, it is necessary for him to prove that the vendees became insolvent between the time of the contract and the time of the delivery. 1 Pars. on Cont. 478 (3d Ed. and notes); Hill. on Sales, 210; Rogers v. Thomas, 20 Conn. 53. Carleton\\u2019s testimony was not offered. There is no evidence the bill was presented to Murcheson & Co., nor that Murcheson & Co. are not responsible now. If Carleton called on them, it was before the goods arrived, and they were not bound to pay. It was the duty of Reynolds to have an agent to receive the money when the goods were delivered. The expressman had no authority to stop the delivery of-the goods, and did not understand that he had any authority to do so. If he had, he would understand he must be at the depot and stop the delivery, if the goods were not paid for; as he had no authority, he wants them to wait till he gets authority; as he had no authority, what was done is of no avail, unless adopted, which is not shown. The notice which Niles sent to the defendants was insufficient to bind them, because it was too late, the goods having come under the control and into the constructive possession of the consignees; because it was made without authority, and the right to make it questioned at the time; and because he should have demanded the delivery of the goods to himself for the plaintiff and not have required the defendants to assume new risks and responsibilities in relation to them. Redf. on Railw. 303, sec. 2; Long on Sales 307, 308. A prohibition to deliver the goods was not enough. The goods must remain at the risk of the railroad. They were not bouud to incur that risk. A request to keep the goods was not a stoppage in transitu. A friend, having no authority, can do nothing, unless there is a ratification before the goods are delivered. No ratification is shown here but this action. Payment of the freight was a new consideration, and its receipt a new agreement to deliver the goods to the consignees.\\nThe act of the expressman, not having been expressly authorized by the plaintiff, could not be ratified by him subsequently, because the transitas was ended, and the goods delivered before he could make the act his own. 1 Pars. Cont. 45, note (tt), and 478, note (m); Bird v. Brown; 4 Exch. 786.\\nThis was not a sale on credit, but for payment on delivery; consequently no right of stoppage in transitu existed. The goods became the property of the purchaser on delivery to the carrier, and the plaintiff\\u2019s lien for the price was lost by that delivery. In such, cases the right of stoppage never exists. 1 Pars. Cont. 440, and note; Long, on Sales 262; Abbot on Shipping 351.\\nThe court instructed the jury that they must find either a general or special property in the plaintiff in the goods claimed by him; and it is to be presumed that they so found. But in that event no right of stoppage in transitu could exist. One can not charge a common carrier on that ground for his own property. 1 Smith L. C. 539.\\nThe court instructed the jury that they might examine the evidence, and see whether the plaintiff had knowledge of the insolvency of the vendees, prior to the day of delivery in Boston; but there was no evidence from which the jury could.find that fact, and the conduct of the plaintiff, in sending his bill to them on that day for payment, together with his written instructions to the ex-pressman, clearly shows that he had no such knowledge. The jury should, on the contrary, have been charged that the plaintiff must prove the fact of such insolvency after the time of the sale, in order to maintain his action. 2 Kent Com. 543, and note; Abbot on Shipping 370, and note.\\nBut the court further charged, that the plaintiff, having obtained knowledge of the vendees\\u2019 insolvency, or of their failure to meet their contract, he or his agent might stop the goods. The charge should have been that this right exists only in case of the insolvency of the vendee. 2 Kent Com. 543; Long on Sales 308; Hill. on Sales 188, sec. 1; Story Cont., sec. 519.\\nThe court, after saying to the jury that the plaintiff was entitled to a reasonable time to furnish the requisite indemnity to the carrier, and that it would not be unreasonable to ask for delay until the next day, that the vendor might have time to take action in the premises, instructed the jury that if they found that the defendants managed wrong, and to the prejudice of the plaintiff\\u2019s rights, in surrendering the property, they would be chargeable for the value of the goods; virtually saying that if it should turn out that the plaintiff had made a bad bargain, and that it would prejudice his interests to have the goods delivered according to his order, and according to the contract made with the carrier, the defendants must pay him the value of the property.\\nThe court should have charged the jury, that the plaintiff was bound to tender the freight before he could maintain this action. Ang. on Carriers 337, sec. 339.\\nTj. D. Sawyer, and Woodman, for the plaintiff'.\\nThe property in these goods never passed from the plaintiff; he had a light to reclaim and seize them any where. Dudley v. Sawyer, 41 N. H. 326; Ferguson v. Clifford, 37 N. H. 86, 103; Luey v. Bundy, 9 N. H. 301; Clark v. Draper, 19 N. H. 419; Williams v. Moore, 5 N. H. 235; Sargent v. Gile, 8 N. H. 325; 1 Pars. Cont. 449, sec. 6; Saltus v. Everett, 20 Wend. 267. Murcheson & Co. had no right to the possession of the goods without payment for them, either antecedent to or concurrent with the delivery. 1 Pars. Cont. 449, 479, note (g); Low v. Freeman, 12 Ill. 467; Jenness v. Gage, 13 Ill. 510. The defendants being notified of the trade, and forbidden to deliver the goods, the delivery was wrongful, and at their peril. Redf. on Railw. 304, 306, 307; Abbot on Shipping 636, note (t), marg. p. 529; Walker v. Woodbridge, Cook B. L. 494; Mills v. Bull, 2 B. & P. 457; Newhall v. Vargas, 13 Me. 93. The taking of the goods by Murcheson & Co. was a fraud upon the plaintiff of which the defendants were notified. The receipt of the freight was in no sense a delivery of the goods. Townley v. Crump, 4 Ad. & El. 58. If it'was a constructive delivery, the defendants were seasonably notified of the fraud of Murcheson & Co. in procuring such delivery, and were bound to retain the actual custody of the goods against a receipt so obtained. Jenness v. Gage, ante. The defendants would be protected in a reasonable delay, for the purpose of making inquiry into the facts, and allowing the contracting parties time to furnish an indemnity ; and, being thus protected, this wrongful delivery, hastily and wantonly made, was at the defendants\\u2019 peril. Redf. on Raiiw. 304, note; Robinson v. Burleigh, 5 N. H. 225; Fletcher v. Fletcher, 7 N. H. 452; Sargent v. Gile, 8 N. H. 331.\\nThe contract of the defendants with the plaintiff is expressed in the bill of lading, by which the machines were sent to the care of X). Murcheson & Co. This imported no sale of the machines to D. Murcheson & Co., but rather implied that the consignor was the general owner of the goods. D. Murcheson & Co. should have had and presented the bill of lading \\u2014 something to show themselves to be the consignees. To whom the goods were delivered does not appear, except that it was to a man calling himself \\\"White. The defendants\\u2019 freight agents at Boston were bound to know the terms of the bill of lading, which was given to the plaintiff by their clerk at Dover.\\nThe contract of the plaintiff with Mureheson & Co. was a contract for a sale. Delivery was necessary to pass the property. There was no credit preceding the delivery. The delivery of the goods by the plaintiff to the defendants at Dover was not even a qualified delivery to Mureheson & Co. It is wholly unlike a case of sale on credit, and a delivery by the vendor to a comhion carrier. It is not; therefore, necessary for the plaintiff to rely upon the technical right of stoppage in transitu, in case of the insolvency of the vendee. The plaintiff\\u2019s right of stopping the goods existed independently of any insolvency of Mureheson & Co. The ruling, in this respect, was too favorable to the defendants. But if it were necessary for the plaintiff' to rely upon that technical right, he might claim to exercise it in this case. There was some evidence, slight indeed, that Mureheson & Co., at the time of their contract, doing business on India wharf, in Boston, were apparently solvent; that the plaintiff, relying upon such representation, had a right to suppose them to be solvent. They were primd facie solvent. Their refusal to pay for the machines, according to the contract, was some evidence that they had become insolvent. Stoppage of payment is held sufficient evidence of such fact. Their refusal to pay the plaintiff\\u2019s bill, corroborated by attending circumstances at the time, would justify the jury in finding an insolvency to exist, which would allow the stoppage in transitu. The plaintiff has not since been able to find D. Mureheson & Co., nor have the defendants indicated where they are. Upon this evidence the verdict is conclusive.\\nThe plaintiff had also the right to stop the goods on discovery of fraud in the vendee. 1 Pars. Cont. 476, note 1, and 484; citing Donath v. Brownhead, 7 Penn. 301. Niles had authority to notify the defendants not to deliver the machines. His instructions were to see that the machines were not delivered, if possible, until he got payment for them. Merriam knew that Niles came from the plaintiff as his agent.\\nIt was the agreement or understanding of the plaintiff and White that the machines were to be sent by railroad. It does not appear that it was by the direction of White, nor does it appear that there was an express agreement that White was to pay the freight. The plaintiff testified that he expected him to pay the freight. If White had agreed to pay the freight it would have only amounted to this, that Mureheson & Co. agreed to pay $480, and the freight charged, on delivery of the machines to them at Boston, as a consideration for the plaintiff\\u2019s agreeing to send them to Boston, and there deliver them to the vendees.\\nThe goods, while in transitu, were at the risk of the plaintiff, and not of Mureheson & Co. 1 Pars. Cont. 446.\\nThe payment of the freight by White did not divest the plaintiff of any of his rights. Buskirk v. Purinton, 2 Hall 561.\", \"word_count\": \"7499\", \"char_count\": \"41262\", \"text\": \"Bell, C. J.\\nThe evidence in this case tends to prove that the contract between the parties was conditional that the machines should be delivered in Boston on payment of the price; and this evidence is entirely uncontradicted. ITpon such a contract it may be regarded as settled that no interest vests in the purchaser until actual delivery and the payment of the price. The payment is a condition precedent to the passing of the title. The contract is merely executory. Notwithstanding a delivery to a common carrier, to be forwarded to the buyer, the title remains in the seller, and his right to forbid a delivery by his bailee remains absolute till the payment is made. Williams v. Moore, 5 N. H. 235; McFarland v. Farmer, 42 N. H. 386; Dudley v. Sawyer, 41 N. H. 326; Ferguson v. Clifford, 37 N. H. 87; Messer v. Woodman, 22 N. H. 172; Goodall v. Shelton, 2 H. B. 316; Luey v. Bundy, 9 N. H. 301.\\nThe plaintiff claimed at the trial, and still insists, that this is the true view of the case. If the verdict had been against him, it seems to us he might have had a well-founded objection to it. But he can take no objections to a verdict which he seeks to sustain. The defendant can not object that this view of the case was not dwelt upon by the court, because the omission is only too favorable to himself. Fowler v. Tuttle, 24 N. H. 9.\\nThe objection taken to the charge of the court, in general terms, is not sustainable. It is quite too broad. If any part of the instructions to the jury was regarded as objectionable, the exception should be taken to that specifically.\\n\\\"We propose, however, to examine some of the points raised in the argument, as it may save the parties the expense of a new trial.\\nThe defendants contend, that to entitle the plaintiff' to stop the goods in transitu, he must prove that the vendees became insolvent between the time of the contract and the time of the delivery; while the charge imported that the right would exist, if the plaintiff obtained the knowledge of their insolvency, or of their failure to meet their contract, between those times. They rely on the decision in Rogers v. Thomas, 20 Conn. 53, quoted 1 Pars. on Cont. 478, in which this point is explicitly held ; but we are unable to adopt this view of the law, because we do not find any decision in which the right is held to depend on a failure after the sale, until this case; because it is laid down generally in the elementary books and decided cases, as depending on the fact of insolvency, first known before the time of delivery; because the doctrine was originally equitable, and should extend to all cases falling within the same reason, and a peremptory rule which would exclude from this right a large class of cases where its benefit is quite as important .and necessary as in any other, must be supported on strong grounds of principle, or by decisions too numerous and too well supported to be shaken, and the case relied on rests on neither of these; because we are unable to discover any just or equitable reason for distinguishing between the case of the merchant here, forwarding goods upon the order of a distant correspondent, who discovers that his consignee failed the day before his order was received, and the case where he discovers that the failure occurred the day after the order was executed; and fiifblly, because we think the decisions, in which it is held that it is enough that the failure of the consignee became known to the consignor after the goods were sold or forwarded, are of greater weight.\\nIn Snee v. Tollet, 1 Atk. 245, Hardwicke, C. J., says: \\\"If goods are delivered to a carrier to be delivered to A, and while the carrier is upon the road, and before actual delivery to A by the carrier, the consignor hears that A, his consignee, is likely to become a bankrupt, or is actually one, and countermands the delivery, and gets them back into his own possession again, I am of opinion that no action of trover would lie for the assignees of A, because the goods, while they were in transitu, might be so countermanded.\\\"\\nIn Buckley v. Furniss, 15 Wend. 137, Buckley sold to Titus on credit, and subsequently discovering him to have been insolvent at the time of the sale, he had repossessed himself of the iron, under the right of stoppage in transitu. It was shown that the sale took place in 1853, and that the vendee had failed in New-York in 1829, and the vendor knew that fact, but he did not know that he had remained insolvent since; and the vendee afterward transacted business in the country, represented that he was largely interested in real estate, and the vendor had pireviously sold him goods, and been promptly paid, and was ignorant of his being much in debt, and of his securities having been protested ; \\u00bfnd it was held that he had no sufiicient notice of his insolvency to prevent the exercise of the right of stoppage. See Hill. on Sales 218, sec. 11.\\nIn Bohtlink v. Inglis, 3 East 380, the goods were ordered by a London merchant of a merchant at St. Petersburg. They were purchased before the 16th, the day on which the London merchant became bankrupt, and were loaded, and one part of a bill of lading forwarded on the 18th, and the goods were stopped in transitu after the consignor heard of the insolvency; and it was not suggested that the right of stopping the goods was impaired by this state of facts.\\nIn Stevens v. Wheeler, 27 Barb. 663, Ingraham, J., says: \\\" From all these cases, and I can find none sanctioning a contrary doctrine, the following rules are dedueible: namely, that the vendor has a right to stop goods sold by him when he discovers the vendee to be insolvent at any time while the goods are in transitu.\\nThe same principle is stated in the same terms in Cross on Lien and Stoppage 361; Hill. on Sales 218; Redf. Railw. 303; and see 1 Pars. Cont. 478.\\nIt is contended that the attempt to stop the goods was made without authority. Though goods can not be stopped in transitu by a stranger, absolutely without authority, and the act of such mere stranger can not be made valid by a ratification on the part of the vendor, or his agents, subsequent to the time when the goods reach the hands of the vendee (Bird v. Brown, 4 Exch. 786), yet we regard it as settled that any agent who has power to act for the consignor, either generally or for the purposes of the consignment in question, may stop goods in transitu without any authority specially directed to that end, or empowering him to adopt that particular measure. Bell v. Moss, 5 Whart. 189; Newhall v. Vargas, 3 Shep. 93; Whitehead v. Anderson, 9 M. & W. 518; 1 Pars. Cont. 478; Cross on Lien, 364; Hill. on Sales 210; 1 Smith L. C. 907. Here the expressman had an authority to act in reference to this particular subject. He was instructed to call early upon the vendees, and collect the bill, and see that the machines were not delivered, if possible, until he got the pay. His acts are now claimed by the plaintiff to have been done by his authority, and no special ratification was needed to render them effectual. It was of no impoi'tance whether the expressman supposed he had authority or not. The question depends upon the fact of his authority, and not on his opinion.\\nIt is said the notice given to the carriers not to deliver the goods was insufficient, because the authority of the messenger was questioned at the time. There was room for doubt whether the jury would have found that any such question was raised. But we think the defendants would be protected in a reasonable delay, for the purpose of making proper inquiries into the facts, and for allowing the claimants time to produce their authority, and to furnish an indemnity. They were bound to know their own contract, and to regard the directions placed upon the goods themselves. Both these imported that the goods were sent to the care of Murcheson & Co., not that they were sold to them. The case does not show that any inquiries were made as to the persons to whom the goods were delivered, or as to the title they had to them; and we think that, under the circumstances, they were bound to retain the goods, and a delivery after the notice given them was at their peril.\\nIt is insisted that the notice was insufficient, because it was too late, and because a delivery should have been demanded to the messenger. The goods had been called for by the persons who claimed to be the consignees, the freight was paid by them, and a delivery check, as it is called, was given them. This w\\u00e1s merely a receipt for the goods to be signed by them, and left with the clerk who had charge of the goods, upon their receipt of them. They were not delivered to nor seen by the claimants. There were other things in the way of a delivery, and they were told they would be ready about five o'clock. If these constituted a delivery in law, so as to terminate the transitus, the notice given in behalf of the plaintiff' was too late. It was long held that the right of stoppage in transitu could be terminated only by an actual delivery of the goods to the consignee or his agent. Cross on Lien 370; James v. Griffin, 2 M. & W. 623; Edwards v. Brewer, 2 M. & W. 375; Ellis v. Hunt, 3 T. R. 404; 2 Kent Com. 545; 1 Smith L. C. 907. The later cases furnish some exceptions to this rule, as where the consignee calls for the goods, and the carrier agrees or consents that he will hold them for him, thus making himself his agent to keep the goods; Richardson v. Goss, 3 B. & P. 127; Scott v. Petit, 3 B. & P. 469; Molloy v. Hay, 3 M. & R. 396; Rowe v. Pickford, 1 Moor 526; Allan v. Gripper, 2 C. & J. 218; or where the consignee has been in the habit of using the warehouse of the carrier or wharfinger as his own; Tinker v. Humphrey, 4 Bing. 521; Foster v. Frampton, 6 B. & C. 109; or where the consignee claims the goods, and the carrier wrongfully refuses to deliver them, so that he makes himself liable for the goods in trover. Bird v. Brown; Walley v. Montgomery, 3 East 585. But where the goods remain in the actual possession of the carrier, without fault on his part; Crawshay v. Eades, 4 B. & C. 181; Tucker v. Humphrey, 4 Bing. 516; Holst v. Pownal, 1 Esp. 240; Lackington v. Atherton, 8 Scott N. S. 38; or in the hands of a depositary, or in the custom-house till the duties are paid; Matham v. Heyer, 5 Denio 629; Newhall v. Vargas, 13 Me. 109; Northry v. Field, 2 Esp. 613; or until necessary papers are produced; Donuth v. Broomhead, 7 Barr 381; or while the vessel is lying at quarantine; Stoveld v. Hughes, 14 East 308; there is no delivery, either actual or constructive. Goods can not be said to have arrived at their final destination, so as to defeat the vendor's right of stoppage, while they remain in the hands of the wharfinger or carrier in that character, provided he is not the actual agent of the consignee beyond his duty as a mere wharfinger or carrier. Bertram v. Fairbrother, 1 M. & P. 528; Jackson v. Nichol, 5 Bing. N. C. 508; Atkins v. Colby, 20 N. H. 156.\\nThere is no constructive possession on the part of the vendee, unless the relation in which the .carrier stood before, as a mere instrument of conveyance to an appointed place of destination, has been altered by a contract between the vendee and the carrier, that the latter should hold or keep the goods, as the agent of the vendee. Foster v. Frampton, 6 B. & C. 107; Whitehead v. Anderson, 9 M. & W. 508.\\nIn the present case there is no evidence of any such agreement. The consignees were in a great hurry, and complained that the goods were not delivered to them. They asked no agreement to keep the goods for them, and no assent was given to any such agreement, if we were to assume that the agents had authority to make any. The delivery check was no special agreement, and implied none, since it was but the usual mode of doing their business. The ease comes not nearly up to Foster v. Frampton, 6 B. & C. 107, where it is said there is no proof of any such contract (to keep the goods). A promise by the captain of the vessel to the agent of the assignees is stated, but it is no more than a promise, without a new consideration, to fulfill the original contract, and deliver in due course to the consignee, on payment of freight, whieh leaves the captain in the same situation as before. After the agreement he remained a mere agent for expediting the cargo to its original destination.\\nA notice to the carrier not to deliver the goods is sufficient. It is not necessary that the vendor or his agent should demand a delivery of the goods to himself. Lett v. Cawley, 1 Taunt. 606; Whitehead v. Anderson, 9 M. & W. 518; Bell v. Moss, 1 Whart. 189.\\nIt is insisted that the court, having instructed the jury that they must find a general or special property in the goods in the plaintiff, they must be presumed to have found such property, and in that case no right of stoppage in transitu exists; and that, further, this- was not a sale on credit, but for payment on delivery, and no such right of stoppage exists in that case ; that the charge that the plaintiff having obtained knowledge of the vendees' insolvency, or of their failure to meet their contract, be or his agent might stop the goods, was erroneous. The right to stop the goods in transitu exists only in case of the insolvency of the vendees.\\n/~These questions all rest on a technicality. The question really is, ' whether the plaintiff had a right to stop these goods, and not ' whether such stoppage would fall within the strict technical meaning of stoppage in transitu. Ordinarily, goods sold to an absent party pass to the vendee by a delivery to the carrier, and are at his risk, and become his property for -all purposes, except that they remain liable xto be stopped in transitu while on the way. But if, by reason of a condition precedent, as the payment of the price on delivery, they did not pass by the delivery to the carrier, but remained as they must the property and at the risk of the original owner, his right to countermand the delivery of the goods on their way would be perfect and absolute, and the proposed buyer could have no claim whatever to them, till he had paid the price ; and the carrier would be bound by an order to detain the goods on the insolvency of the consignee, or on his failure to meet his contract. The rule, therefore, laid down to the jury was the correct one, whether the case was oue of stoppage in transitu, technically speaking, or of stoppage on the way by the owner; saving that in the latter case the conditions upon which the right of stoppage in transitu depends, would have no application. But the defendants, can not complain of the omission to state that difference, if such omission occurred, because it would render the charge only too favorable to themselves.\\nThe instruction that, to maintain the action of trover, the plaintiff must show a general or special property in the goods, was undoubtedly correct; a property, at the time of the writ brought, not at the time of the stoppage; and the jury might well find that the plaintiff, having stopped the goods, and revested in himself a right of possession till the price was paid, had a special property in them,, as the rule required.\\nIt is contended that there is no evidence upon which the jury could be justified in finding the insolvency of Murcheson & Co.; but we think otherwise. The evidence of the contract, of the sending the goods, and the bill, tend to show that they were regarded by the plaintiff as solvent. The proof that they did not pay the bill, that they got possession of the goods without payment, and that no such parties could be found afterward, was competent evidence, from which the jury might find their insolvency, as well as their entire failure to perform the condition of the sale.\\nObjection is made to the general terms used by the judge in relation to the proceedings of the agents of the railroad, but we are unable to understand this language as importing that the carriers would be liable in any other case except that they had conducted improperly in surrendering the property to the consignees, to the prejudice of the plaintiffs' rights, and to such an instruction no just exception can be taken.\\nAs the freight for the conveyance of the property from Dover had been paid by the party who was expected to pay it, and the carriers had no further claim on that account, it was not necessary to make any tender to them.\\nJudgment on the verdict.\"}" \ No newline at end of file diff --git a/nh/4558715.json b/nh/4558715.json new file mode 100644 index 0000000000000000000000000000000000000000..41fd6bd7a85083975117855b767ba05c8058c6d1 --- /dev/null +++ b/nh/4558715.json @@ -0,0 +1 @@ +"{\"id\": \"4558715\", \"name\": \"Sanderson v. Nashua\", \"name_abbreviation\": \"Sanderson v. Nashua\", \"decision_date\": \"1860\", \"docket_number\": \"\", \"first_page\": 492, \"last_page\": \"494\", \"citations\": \"44 N.H. 492\", \"volume\": \"44\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Supreme Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-10T20:49:49.211520+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Sanderson v. Nashua.\", \"head_matter\": \"Sanderson v. Nashua.\\nWhere, after a view by the jury of the place in question, the jury returned to it, in the absence of one of the parties, and had their attention directed to various objects by the other, and afterward, upon learning the fact, the absent party waived all objections to such second view, upon certain instructions being given; \\u2014 Held, that this afforded no cause for disturbing the verdict, unless something was done of which the plaintiff had no notice at the time of such waiver, and which did not fairly come within the scope of the notice he did receive, or unless it was something more than the impropriety of having the view in the absence of the other party.\\nWhere the opinion of an expert is given in evidence, he may be contradicted by showing that at another time he had expressed a different opinion.\\nCase, for special damage happening to the plaintiff by reason of. the insufficien\\u00e9y of a highway.\\nBy direction of the court, on the motion of the defendant, the jury went from Manchester to Nashua to view the place where the plaintiff' claimed he was injured, and such other objects as either party should desire the jury to see. On the return of the jury from the view, the counsel for the plaintiff' stated to the court that they understood that after the jury had viewed the premises in presence of the counsel of both parties, and had left the place where the plaintiff was injured, and after the plaintiff\\u2019s counsel supposed that the view was completed, all or some of the jury returned to the place where the plaintiff was injured, unaccompanied by the \\u00a1ffaintiff, or any one representing him, and that, in the absence of the plaintiff and his counsel, and without their knowledge or consent, another view was had by the jury, and various things were said and done in presence of the jury by the defendant\\u2019s .counsel, and by others interested in behalf of the city.\\nThe plaintiff\\u2019s counsel also stated to the court that in an ordinary case they should not consent to go on with the trial under such circumstances, but that in this case they pi\\u2019oposed to waive all objection, if the court would state to the jury that it was their duty to lay out of the case, and allow to have no influence upon their minds, all that had been said, and done, and seen, when Mr. Barrett (one of the plaintiff\\u2019s counsel) was not present.\\nThe coart thereupon made the statement to the jury suggested by the plaintiff\\u2019s counsel, and the trial went on, with the understanding on the part of the defendant\\u2019s counsel and the court that the plaintiff waived all objection to what had transpired in presence of the jury, or any of them, in the absence of the plaintiff\\u2019s counsel.\\nThe jury returned a verdict for the defendant, and the plaintiff moved to set it aside, \\u201cbecause, after the jury had viewed the place where the accident occurred, under the instruction of the coui\\u2019t, they returned to the locality, and there met some officers and citizens of Nashua, and measurements were made and conversation had and held between said officers and citizens, in the presence and hearing of the jury, and as we believe both there and at other places with the jury, or some of them; that the plaintiff nor his counsel had no notice of such second view, and were not present ; that one of the defendant\\u2019s counsel, A. W. Sawyer, was pres ent at said second view, and pointed out limbs,\\u201d &c. The court declined to set the verdict aside, and the plaintiff:' excepted.\\nThe plaintiff claimed and testified that he was injured July 16, 1860, at night, and when it was very dark, by stepping off a bridge over a ditch, and down a distance of twelve or fifteen inches, whereby, in falling, his head struck a tree, and he claimed and introduced evidence tending to show that the effects of this blow upon the head had been great pain in the head, discharges from the nostrils, dizziness, confusion of mind, distortion of the face, partial paralysis of the limbs, loss of appetite, indigestion, emaciation, general loss of nervous vigor, and a gradual, constant and increasing loss of health, and that the injury was likely to prove fatal. The plaintiff was a painter, and had been engaged in that business for many years before that time. In 1855 he was burned about the face, hands and arms, by some of his painting materials taking fire.\\nThere was conflicting evidence as to the condition of the plaintiff\\u2019s health before July 16; 1860. Dr. Graves, one of the plaintiff\\u2019s witnesses, testified that he was the family physician of the plaintiff, and that, before the injury complained of in this case, the plaintiff appeared well and healthy, and th*at he always considered him a hearty, vigorous and healthy man. On cross-examination he testified that he did not recollect of saying to Mr. White, or to any one, that the plaintiff would die, or suffer injury to his health, unless he quit painting, or any thing to that effect, or on that subject, but that he would not swear that he had not said so. Subject to the plaintiff\\u2019s exception the defendant was allowed to prove by Mr. White that about the time the plaintiff was burned, Dr. Graves said to the witness that the plaintiff' was full of paint, or full of the effects of paint, and that it was his (Dr. Graves\\u2019) impression that the plaintiff would have to leave his business\\u2018of painting, if he lived long.\\nMorrison, Stanley \\u00bf- Clark, for the plaintiff.\\nGeorge Y. Sawyer, for the defendant.\", \"word_count\": \"1429\", \"char_count\": \"8032\", \"text\": \"Bellows, J.\\nIt appears from the case that the plaintiff had notice that the jury, or some of them, in the plaintiff's absence, viewed the place of the accident, with the defendant's counsel, and others interested in behalf of the city, by whom various things were said and done in the presence of the jurors; and that this objection was expressly waived by the plaintiff before proceeding to trial.\\nUnless, then, it is made to appear that something was done of which the plaintiff had no notice at the time of such waiver, and which did not fairly come within the scope of the notice he did receive, he can . not now object. From the case as reported, it appears that the plaintiff had notice of a return to the place after the view, by the jurors, or some of- them, when the ground was again viewed, and suggestions made on behalf of the defendant; and although it must be assumed that such examination, in the absence of the plaintiff, was unauthorized and improper, yet the mere fact that the plaintiff did not know all the particulars of such subsequent examination, or of the suggestions made on the part of the defendant, would not, we think, relieve him from the effect of the waiver; unless the matter, not then brought to his knowledge, was something more than the impropriety of calling the jurors' attention to the objects connected with the injury, in the absence of the other party.\\nUpon a careful examination of the affidavits we do not perceive that any thing was done beyond the legitimate scope of a view, had the other party been present; nor do we think that the affidavits disclose any material facts not brought to the knowledge of the plaintiff's counsel before the trial.\\nIt is true that Mr. WilliamSj one of the persons present, stated when the limbs -were removed from a certain tree; and, so far as this could be regarded as testimony, it was irregular; although a party might properly call the attention of the jury to the tree, with a statement that he proposed to prove that certain limbs were removed at a certain time. That this statement went beyond that is quite probable, but still we are not prepared to regard it as so marked or material in its character as not to be embraced in the waiver. See State v. Rand, 33 N. H. 227.\\nDi\\\\ Graves being called to testify to opinion as to the health of the plaintiff, might be contradicted by showing that he had before expressed a different opinion, and this is not affected by the fact that he said merely that he did not recollect expressing such an opinion. Nute v. Nute, 41 N. H. 60.\\nJudgment on the verdict.\"}" \ No newline at end of file diff --git a/nh/459117.json b/nh/459117.json new file mode 100644 index 0000000000000000000000000000000000000000..a61e5839fb0f6ab31517ae04523d79e53f711118 --- /dev/null +++ b/nh/459117.json @@ -0,0 +1 @@ +"{\"id\": \"459117\", \"name\": \"Pittsfield v. Barnstead\", \"name_abbreviation\": \"Pittsfield v. Barnstead\", \"decision_date\": \"1860-06\", \"docket_number\": \"\", \"first_page\": 477, \"last_page\": \"497\", \"citations\": \"40 N.H. 477\", \"volume\": \"40\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Supreme Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-10T18:40:00.429376+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Pittsfield v. Barnstead.\", \"head_matter\": \"Pittsfield v. Barnstead.\\nUnder the act of 1796, if an alleged pauper resided in the town sought to he charged, was taxed for his poll for the term of seven years, and paid all taxes legally assessed on his poll and estate during that term, ho gained a settlement there.\\nBy the act of 1791, selectmen were required to make assessments of taxes, and to record them in their hook, which was to he the property of the town, and open to any of the inhabitants of the town. \\u2014 Held, that the selectmen\\u2019s book, containing the assessment of taxes, in proper form, furnishes competent prim\\u00e1facie evidence of the fact of the due assessment of resident taxes.\\nThe invoice and assessment of taxes, or copies of them, especially of the resident taxes, are not required to be filed in the town-clerk\\u2019s office before the committal of the lists to the collectors of taxes; and even if such deposits were essential, where the transaction was an ancient one, the jury might reasonably presume a compliance with the law, or the former existence, and'the loss of the record; and if more than twenty years had elapsed since the taxation, the jury might properly presume the taxes paid; and upon such a state of facts a motion for a nonsuit was properly overruled.\\nTo rebut the evidence of an alleged pauper\\u2019s poverty and inability to pay taxes, it is competent to show that he had money and other property sufficient to discharge them during the time in question.\\nThe fact that the son of an alleged pauper, having no settlement, except by derivation from his father, was supported by the town sought to be charged, is competent evidence against the town, because it is in the nature of an admission.\\nUpon the production of mutilated books, it is proper for the jury, to consider their appearance, and among other things, any evidence they present of a fraudulent alteration.\\nWhere alleged causes of exception to a juror appear from the venire and return, and the juror sits in the case without objection, it is too late to make objection for such reasons, after verdict.\\nAssumpsit, for the support of Sally Willey, Enocli H. Willey, and James Willey and wife. The plaintiffs offered evidence tending to show, that at the time specified, said Willeys were poor and needed relief; that they then resided in Pittsfield, and made application to said town for relief; that relief was furnished them, and the defendant town duly notified, and that these paupers had no relations liable by law for their support. It was proved that said Enoch H. and James Willey were sons of said Sally Willey, by one Theodore Willey, her late husband, who died in said Barnstead in 1834, and that said Enoch IP. and James had never gained any settlement in their own right, and it was contended by the plaintiffs that these paupers were chargeable upon the defendant town, upon the ground that Theodore Willey gained a settlement in Barnstead subsequent to 1796, by being taxed seven years in succession for his poll, and paying all taxes legally assessed upon him and his estate for said term; and it was admitted that the paupers had no settlement in any town in this State, unless one had been gained in that way by said Theodore Willey in said Barnstead. It was admitted that there were no records of any invoice or assessment of taxes recorded upon the town-clerk\\u2019s records of said Barnstead, till subsequent to 1820, and in the absence of any and all such records with the town-clerk, the plaintiffs offered the selectmen\\u2019s books of Barnstead, as tending to show that said Theodore Willey was taxed in said Barnstead prior to 1820; to which evidence the defendants objected, but the court admitted it. Upon said selectmen\\u2019s books there were records of what purported to be an invoice and assessment of taxes upon the inhabitants of Barnstead, for each year, from 1803 to 1819 inclusive, and the name of Theodore Willey appeared as having been taxed in each of these years, except the year 1805 and 1806. One year he was taxed only for his poll (1815); the other years he was taxed for his poll and a cow, and generally one horse, and sometimes two, and sometimes for two or three cows, and sometimes for two or three young cattle. The taxes appear on said books, some years divided and set in different columns, which columns are headed \\u201c State,\\u201d \\u201c county,\\u201d \\u201ctown and school.\\u201d Some other years the taxes are carried out together in one gross sum, but the said Willey\\u2019s are carried out in the same way that those of the other persons are whose names are contained in the invoice and assessment, each and every year. In the record of the invoice and assessment for the years 1805 and 1806, portions of the records were missing, several leaves of the book, including the letter W. and some other letters of the alphabet, wrnre missing from the book. The plaintiffs here rested their case, and the defend ants moved for a nonsuit, which motion the court overruled. The defendants then introduced evidence tending to show that the taxes of said Theodore Willey were abated in the years 1812, 1814, 1816, 1817 and 1818; and also evidence tending to show that a certain abatement or allowance was made to the collectors of Barnstead for the years 1808 and 1809, in consequence of the inability of certain poor people in town to pay their taxes, but it did not particularize by name or otherwise who these poor people were. The defendants also offered evidence tending to prove that said Theodore Willey was, during all this time, a poor man, and destitute of money or means to pay any debts or taxes. The plaintiffs then introduced evidence of said Willey\\u2019s having raised large crops of corn and potatoes in several of these years, and that he was never known to refuse to pay his debts or taxes, when called upon to do so. The plaintiffs also offered evidence to sh^w that said Theodore, about the year 1813 or 1814, paid out a sum of money between $80 and $100, on account of his son Enoch, at the Eort; to which the defendants objected, but the court admitted it. The plaintiffs introduced the deposition of Nancy Elliot, a daughter of Theodore Willey, and upon the cross-examination the defendants asked her the three following questions, which, with the answers, were objected to by the plaintiffs and excluded by the court, to wit:\\n\\u201cInt. 37. Do you recollect when your father was in jail at Dover? Ans. I never saw him in jail; they said he was in jail.\\nInt. 38. About how old should you think you were when you understood that your father was in jail ? Ans. I was about 18 or 19.\\nInt. 39. How many times did you ever understand your father to have been in jail ? Ans. I did not know I was obliged to tell every thing my father did. I understood he was in jail twice.\\u201d\\nThe plaintiffs introduced evidence that the town of Barnstead had supported Chandler \\\"Willey, a son of said Theodore, and also offered evidence tending to show that said Chandler had never gained any settlement there in his own right; to all which the defendants objected, but the court admitted it, instructing the jury that if they found, from all the evidence before them on that point, that said Chandler had never gained any settlement in said Barnstead in his own right, then they might consider the fact of said town having supported him in the nature of an admission on the part of Barnstead of their liability to support said Theodore, and might-give it such consideration, as, under the circumstances, it deserved. One John S. Hollins was introduced as a witness by the plaintiffs, who testified that in 1848 he was selectman and overseer of the poor in Loudon, and that one of the Willey family was supported at that time by said Lou-don, and that he claimed to recover for his support, of Bai\\u2019nstead, upon the ground of the settlement there of said Theodore Willey; that he applied to one J. B. Merrill, then one of the selectmen of Barnstead, in relation to it, and examined the records of Barnstead, in relation to the settlement of said Theodore Willey, stating the condition in which he found them. On cross-examination he was asked by the defendants\\u2019 counsel whether any suit was brought by Loudon against Barnstead, upon that claim, and his reply was that none was brought. After the close of the cross-examination, the plaintiffs\\u2019 counsel asked the witness why a suit was not brought upon the claim, and his answer was that after examining the records, he saw said Merrill at muster that year, and told him he should bring a suit against Barnstead if the bill was not paid, and Merrill agreed with the witness that either he, Merrill, or one Walker, who was overseer of the poor of Barnstead that year, would come and settle the bill within two weeks, and this was the reason that no suit was commenced; that the witness waited the two weeks, but they did not come near, and then the ninety days had expired, so that the witness could not notify the town of Barnstead. No claim was made before the jury that the agreement was binding upon the defendant town, it being offered simply as explanatory of the fact drawn out on cross-examination, that no suit was brought by Loudon against Barnstead at that time. To so much of the above statement of this witness as relates to the agreement of Merrill that he or Walker would settle the bill, the defendants objected, but the court admitted it.\\nThe plaintiffs claimed and asked the jury to find that Theodore Willey had been taxed in the years 1805 and 1806, in Barnstead, and that the selectmen\\u2019s book, which had been introduced, originally showed that fact, but that the book had been altered and mutilated, for the purpose of concealing this evidence, by some person or persons in the defendants\\u2019 interest. One of the plaintiffs\\u2019 witnesses testified that he had occasion to examine, and did examine this book in August of the year 1848, with reference to said Willey\\u2019s settlement, and that he there found, as appeared by the book, that said Willey was taxed in the years 1803, 1804 and 1805 ; that one leaf was then gone in the invoice of 1806, which leaf contained the Ws; that he examined the book particularly, to see if there was any other leaf missing in the assessments, and found only that one missing; that he found all the names there in the year 1806 but the Ws; that all the other leaves were then perfect. Another witness testified that he had occasion to examine the records of Barnstead, and did examine them in September, 1848; that he then saw this same selectmen\\u2019s book, and found two leaves missing, one in the invoice of 1805, and the other in that of 1806, each leaf containing the Ws of each year; that one of the leaves had the appearance of having been cut out; that the witness could see the part of the leaf left in, and where a knife had apparently cut it off. The witness noticed no other leaves then missing, and the other half of the sheets from which these leaves had been taken were then in the book. There was other evidence of the same import, and much contradictory testimony. At the time of the trial there were quite a number of leaves gone from the book, and mauy others were loose, and the attention of the jury .was called to the appearance of several of the loose leaves, as tending to show that others had been cut off from them with some sharp instrument. The court instructed the jury that they might consider all the evidence on this point, and find whether the book originally showed that said Theodore Willey was taxed there in the years 1805 and 1806, the same as the other years from 1808 to 1810 (that being as far as this book extended); and if so, they might treat them as the other years in which it appeared by the book that he was taxed. But if they found otherwise than that, there was no competent evidence further to consider, tending to show that said Willey was taxed in those years, and they might be laid out of the ease. The plaintiffs also offered in evidence, as tending to show that this book had been altered or mutilated by the defendants, or some one in the defendants\\u2019 intei-est, an entry of the abatement of the taxes of one Samuel Twombly, for a certain year, which entry, as the plaintiffs claimed, showed, upon the face of it, evidence of having been interlined at some recent date ; to which the defendants objected, but the court admitted it.\\nThe defendants desired the court to instruct the jury that no presumption of payment of any tax could in this case be made after any lapse of time, because the plaintiffs had not proved any tax legally assessed; which the court declined to do, but did instruct the jury that if they should find that Theodore Willey was taxed for his poll seven years in succession, between the years 1803 and 1819 inclusive, and the taxes for none of those years were abated, then the legal presumption would be, in tbe absence of all other testimony on that subject, that the taxes were paid; but as there had been evidence introduced by both parties bearing upon the subject of payment, they might find the fact upon the preponderance of the evidence; to which instructions, so far as the presumption of payment is concerned, the defendants excepted, as also to all the other rulings of the court, as above stated.\\nThe jury returned a verdict for the plaintiffs, which the defendants moved the court to set aside for supposed error in the rulings and instructions of the court, and also for the additional reason that the jurors upon the panel from the town of G-ilmanton were not legally and duly appointed. No objection was made to these jurors until after the verdict.\\nBellows, Whipple and Butters,.for the defendants.\\n1. The motion for a nonsuit should have prevailed, because the plaintiffs failed to prove, by competent evidence, that Theodore Willey was assessed and paid taxes for any seven successive years. The selectmen\\u2019s books were used as secondary evidence in the absence of the town clerk\\u2019s records, which would have been the primary evidence. Oral evidence cannot be substituted for any instrument which the law requires to be in writing; no other proof can be substituted for that, so long as the writing exists, and is in the power of the party. Even the admission of the fact, by a party, does not supersede direct proof of matter of record. 1 Q-r. Ev. 98. It has been held, where town records have been burnt, mutilated, or otherwise destroyed, parol evidence may be let in to supply the defect. Stockbridge v. West Stockbridge, 12 Mass. 400 ; Thayer v. Stearns, 1 Pick. 109. Whether the loss is sufficiently proved to let in secondary evidence is a question for the court. Bonelson v. Taylor, 8 Pick. 390 ; Page v. Page, 15 Pick. 368; Woods v. Gassett, 11 N. H. 442. This case finds it was admitted that there were no records of invoices on the town clerk\\u2019s books prior to 1820. How could the court be satisfied of the loss of a thing which Avas not shown ever to have existed. This is one of the cases in Avhich provision is made by the statute for the keeping of the documents, and for the alloAvance of inspection. Act of Eebuary 8, 1791, 214; N. H. Laws, Ed. 1805 ; 2 Phill. on Ev. 182. The act of 1791 provides for a record of all invoices and- assessments made by the selectmen in a book of record, \\u201c which book shall be the property of, and shall be open to any of the inhabitants of said town.\\u201d It then goes on and provides that the assessments and invoices shall be recorded by the toAvnclerk in the book of records, \\u201c that the inhabitants or others rated may inspect the same.\\u201d Documents may be of a general public nature, or of a local or limited public nature, and the right of inspection is correlative. 2 Phill. Ev. 183. See King v. The Bishop of My, 8 B. & C. 112, in which it is said that parish books are not kept for the use of strangers ; Bex v. Buckingham, 8 B. & C. 379; Mayor of Southampton v. Greaves, 8 T. B. 590.\\nA corporation will not be compelled to produce, for the inspection of strangers, any books relating to their private transactions. 2 Phill on Ev. 184; Shelling v. Farmer, 1 Str. 646 ; Murray v. Thornhill, 2 Str. 717 ; Ang. & Am. on Corp. 681, 733; Buzzell v. Nicholson, 3 B. & Ad. 649. The books of a corporation are public with respect to its members, but private in regard to third persons. Gres. Eq. Ev. 116. In New-York there is no distinction made, it seems, between corporations and private persons in this respect. Bank v. Hillard, 6 Cow. 62; Willis v. Bailey, 19 Johns. 268. The record should have been shown to come out of the proper custody, or from the proper place of depositing it. Adamthwaite v. Synge, 1 Stark. 183.\\nA deficiency in parish records is not to be supplied by parol testimony. Manning v. Fifth Parish, 6 Pick. 16; Taylor v. Henry, 2 Pick. 402. Proof that Theodore Willey was assessed a tax in 1803 and 1804, and in 1807 and succeeding years, even with further proof that he was of ability to pay a tax in 1805 and 1806, does not raise a presumption that he was actually assessed a tax in those years. Proof of payment of taxes in the preceding and succeeding years, with proof of ability to pay in 1805 and 1806, would not raise a legal presumption that he actually paid taxes in those years. Why can there be a stronger presumption in favor of the assessment of a tax which is purely a matter of record than of the simple fact of payment of it ? Robbins v. Townshend, 20 Pick. 345. The Statute of 1791 made it the duty of the selectmen to have the invoices recorded on the town-clerk\\u2019s books, or a certified copy left with him. It made their estates and bodies answerable, if they did not properly discharge their duties in the assessment of taxes. If these plaintiffs or any body else has suffered by the default of the selectmen to discharge their duty, their remedy is against them, and notagainst the town, which already may have had to suffer greater hardships on account of such default. It was doubted by the court whether defects in the record of the laying out of a highway by selectmen could be supplied by parol evidence. Pritchard v. Atkinson, 3 N. H. 335. The doings of selectmen, in laying out highways under the statute of 1792, should be reduced to writing and lodged with the town-clerk ; and parol evidence of the laying out of a road under that statute cannot be received until the loss of the writings be shown. Greeley v. Quimby, 22 N. H. 335; Cass v. Bellows, 31 N. TI. 501. The proceedings of the court of probate can be proved only by its records, and parol evidence of an application for partition cannot be received. Brown v. Sceggel, 21 N. H. 121. The selectmen\\u2019s books were not competent as cotemporary mem oranda. Webster v. Clark, 30 N. H. 245; Watson v\\u201e Walker, 23 N. H. 471.\\n2. The evidence with regard to Chandler \\\"Willey should not have been admitted. The plaintiffs were bound to produce the best evidence of which the case admitted. This they did not do. 2 Stark. Ev. 283 ; Foye v. Leighton, 24 N. H. 29 ; Leyfield\\u2019s Case, 10 Coke 92 ; Hoitt v. Moulton,. 21N. H. 586 ; jDunbar v. Warden, 13 N. H. 311. The burden of proof was on the plaintiffs to show where his settlement was, and they could not shift that burden upon the defendants by prima facie evidence. Wilmington v. Burlington, 4 Pick. 174. Selectmen cannot, by their mere acts or declarations, change the settlement of a pauper from one town to another, and confess away the rights of their town. Jaffrey v. Cornish, 10 N. H. 511. As to what will constitute proof of the loss or destruction of documents, see Kimball v. Bellows, 13 N. H. 58; Curry v\\u201e Rogers, 21 N. H. 252; Fwrbush v. Goodwin, 25 N. H. 425 ; Currier v. Railroad, 31 N. H. 209.\\n3. The cross interrogatories to Nancy Elliot should have been admitted. The latter part of the answer to Int. 37 may be objectionable, as hearsay. The first part of the answer was a full and pertinent answer to the question. The court should take heed that a witness who exhibits strong bias in the case, shall not be allowed wantonly to damage the effect of testimony. This objection cannot apply to Int. 38, or to Int. 39. It is not to be presumed that the witness knew the facts therein testified to from hearsay alone. Nor does what she says about her personal knowledge make any difference. She was a minor, and a member of her father\\u2019s family, and may have known the facts testified to by her from the declarations made by her father at the time of the transaction \\u2014 a part of the res gestae \\u2014 which could not be rejected as hearsay, and which the witness might not consider personal knowledge. If the source of her knowledge was hearsay, the plaintiffs should have so made it appear on the direct examination, when resumed. If the witness could have known the facts from a competent source, we are not to presume that she knew them from an incompetent one. The declarations made at the time of the transaction, when Theodore Willey changed bis actual residence, or was upon a journey, or left home, or returned thither, or remained abroad, if expressive of its character, motive, or object, are admissible, like any other material facts. 1 G-r. Ev. 120 ; Mahurin v. Bellows, 14 N. H. 212. The declarations of deceased persons, where they are part of the res gestee, are admissible in evidence. Van Deusen v. Turner, 12 Pick, 532 ; West Cambridge v. Lexington, 2 Pick. 536 ; Tenney v. Evans, 14 N. H. 347 ; Blumer v. French, 22 N. H. 450.\\n4. The testimony of John S. Rollins, as to the conversation with Merrill, should not have been admitted. Selectmen cannot, by their mere acts or declarations, change the settlement of a pauper; they cannot, by their agreement with another town, make their town liable for his support; they have not a general authority to bind their town. Andover v. Grafton, 7 N. H. 300 ; Jaffrey v. Cornish, 10 N. H. 511; Peterborough v. Lancaster, 14 N. H. 383. The act of an agent, to be given in evidence against the principal, must be shown to have been within the scope of his authority. PPopkinton v. Springfield, 12 N. H. 328 ; Glidden v. Unity, 33 N. H. 571. This case finds that Merrill, althokgh one of the selectmen, was not overseer of the poor, but one Walker was. If he had paid the bill, he would not have been acting within the scope of his authority. His declarations relative thereto, then, could not have been binding upon the town. Woods v. Banks, 14 N. H. 101. The representation, declaration, or admission of the agent, does not bind the principal, if it is not made within the scope of his authority, or if it is not made at the very time of the contract, but upon another occasion ; or it does not concern the subject matter of the contract, but some other matter, in no degree belonging to the res gestee. Stor. Ag. 163, 164.\\n5. The evidence that the selectmen\\u2019s book had been altered and mutilated, for the purpose of concealing evidence, by some person or persons in the defendants\\u2019 interest, as was claimed by the plaintiffs, was not competent, and should not have been admitted. The books of the selectmen could not be conclusive evidence of an assessment, but are subject to alteration and correction by the selectmen. At most, they cpuld be but primd facie evidence. Wakefield v. Alton, 3 N. H. 378; Blake v. Slurtevant, 12 N. H. 567. The books could not be evidence, unless it appeared that they had been kept by the proper officer. Haynes v. Brown, 36 N. H. 545. The record of the assessment of a tax is not merely record evidence of the assessment; it is the assessment itself. Ferkins v. Langmaid, 36 N. H. 501. The books of the selectmen were produced, and offered in evidence by the plaintiffs. They did not attempt to show the assessment of a tax from 1803 to 1810, by any other evidence. They attempted to supply the portions missing from them by presumption\\u2014 the lowest degree of secondary evidence. They, of all persons, should not be permitted to discredit them. The entry with regard to Lemuel Twombly was not competent. It was res inter alios. These were very ancient books, and of course many matters which at the time of the transaction were capable of explanation, could not now be explained \\u2014 especially upon the spur of the moment. The court should take good precaution that such matter was pertinent and material to the issue on trial, and that so serious a charge against a public corporation as a town, was not entertained upon slight or frivolous pretexts.\\n6. The jurors from Gilmanton were not drawn so as to be competent to sit in the case.\\nL. W. Clark and G. W. Morrison, for the plaintiffs.\\n1. The motion for a nonsuit was waived by the defendants\\u2019 proceeding and putting in evidence. Quimby v. Melvin, 85 N. H. 2.07; Oakes v. Thornton, 28 N. H. 44.\\n2. The selectmen\\u2019s books were competent. The case shows it was admitted that there were no records of invoice or assessments of taxes upon the town-clerk\\u2019s books prior to 1820. The selectmen\\u2019s books were not secondary evidence. They contained the original records, and the only records that were ever made of the invoice and assessment of taxes, as was admitted. By the act of February 8,1791, the selectmen were required to make an assessment of taxes seasonably in every year, and to cause a fair entry and record to be made of all invoices by them taken, and assessments by them made, in a book of records of the doings and proceedings of the selectmen in their said office. The record of the assessment of a tax is not merely record evidence of the assessment; it is the assessment itself. Perkins v.. Langmaid, 36 N. H. 501. The invoice of property recorded in the books of the selectmen is prima facie evidence of a proper invoice, until the contrary is shown. Blake v. Sturtevant, 12 N. H. 567. The validity of the assessment of taxes is not affected by the neglect of the selectmen to have it recorded on the town-clerk\\u2019s records. Scammon v. Scammon, 28 N. H. 419. See, also, as to the competency of the selectmen\\u2019s books, and that less strictness is required in the admissibility of ancient records than in those which are recent, Boston v. Weymouth, 4 Cush. 538 ; Bishop v. Cone, 3 N. H. 515; Northwood v. Barrington, 9 N. H. 369 ; Cams v. Robertson, 9 N. H. 524; Peterborough v. Lancaster, 14 N. H. 392; Adams v. Stanyan, 24 N. H. 405; Willey v. Portsmouth, 35 N. Ii. 309; Little v. Downing, 37 N. II. 364; and Sumner v. Sebee, 3 Gfr. 223, where it was held that a book found in the hands of the town-clerk, purporting to be a record of births and marriage, was, prima, facie evi dence of the facts contained in it, although it had no title, certificate, or other attestation of its character. In this case the books were produced by the defendant, upon notice, and it was admitted that they were the selectmen\\u2019s books of Barnstead, and it was not necessary for the plaintiffs to offer farther proof of their genuineness.\\n8. The evidence with respect to Theodore Willey\\u2019s paying from eighty to one hundred dollars for his son in 1813, was competent, as tending to show his ability to pay his taxes.\\n4. The interrogatories and answers in the depositions of Nancy Elliott were properly excluded. The fact as to whether Theodore Willey was ever in jail or not, was entirely irrelevant and immaterial. There is no presumption that the witness understood the fact from any declarations of her father made at the time. The answer clearly shows that she derived her information from other sources, and that it was merely hearsay; besides, the defendants were not prejudiced by the ruling of the court, because the fact was afterward admitted upon the trial, that said Willey was in jail; and the defendants might then have read the interrogatories and answers, if they had desired to do so. Flanders v. Davis, 19 N. H. 139.\\n5. The evidence with regard to the relief furnished to Chandler Willey was properly received, as tending to show an admission that Theodore Willey had a settlement in Barnstead. HopHnton v. Springfield, 12 N. H. 328.\\n6. The ruling of the court, admitting the testimony of John S. Hollins as to the conversation with J. B. Merrill, was correct. Merrill was at that time one of the selectmen of Barnstead, and as such was acting within the scope of his authority in agreeing to pay the claim made by the town of Loudon against the defendants. It was the duty of the selectmen to pay the bill, and they had authority to do so, notwithstanding Walker was overseer of the poor that year; and Merrill\\u2019s declarations and admissions, made at the time, and about the business, were competent evidence against the defendants. Hopkinton v. Springfield, before cited.\\n7. The evidence in regard to the mutilation of the selectmen\\u2019s books, under the instruction of the court, was properly received. The question submitted to the jury upon this point was clearly a question of fact upon the evidence before them. Omnia presumuntur contra spoliatorem.\\n8. No question arises upon the exception as to presumption of payment of taxes, because the jury were instructed that inasmuch as both parties had offered evidence upon this point, they were to find the fact of payment upon the evidence submitted to them.\\nIf the question did arise, it is settled in Hopkinton v. Springfield, 12 N. H. 328; Dalton v. Bethlehem, 20 N. H. 505; Golebrook v. Stewartstown, 28 N. II. 75; Andover v. Merrimack Co., 37 N. H. 437.\\n9. The question raised by the exception with regard to the jurors from the town of Gilmanton, has been already determined. Bodge v. Foss, 39 N. II. 406.\", \"word_count\": \"7087\", \"char_count\": \"39844\", \"text\": \"Nesmith, J.\\n1. If the assessments upon the selectmen's books were in proper form, we need not inquire whether the defendants can now insist upon the exception to the refusal of the court to order a nonsuit. Quimby v. Melvin, 37 N. H. 207; Oakes v. Thornton, 28 N. H. 47. We think the defendants' motion was properly overruled.\\nBy the act of 1796, if Theodore Willey resided in Barnstead, was taxed for his poll for the term of seven years, and paid all taxes legally assessed on his poll and estate during that term, he gained a settlement there. Laws of 1815, 363. The selectmen were required to make assessments of taxes, and to record them in their book, which was to be the property of the town, and open to any of the inhabitants of the town. Statute of 1791; Statute Laws of 1805, pp. 213, 214. The book, therefore, seems competent to show the assessment. If the records in it are to be held to be the assessments \\u2014 Perkins v. Langmaid, 36 N. H. 507 \\u2014 it would seem, then, that there could not be any better proof of such assessments than the assessments themselves. Bucksport v. Spofford, 3 Fairf. 489. In any event, the book furnishes primd facie evidence of the assessment, and that is sufficient. Blake v. Sturtevant, 12 N. H. 567. \\u00a5e need not examine the merits of the case Wakefield v. Alton, 3 N. H. 378, where it is held that such books are not conclusive evidence of the assessment, but are open to correction, until left for record with the town-clerk. This question does not arise here.\\n2. But there is no record of these assessments in the town-clerk's office. It has been held in Massachusetts, under a statute requiring the assessors to file the invoice in their own or in the town-clerk's office, that, as between the assessors and the taxqeayers, a tax was illegal, if the invoice were not so filed. Thayer v. Stevens, 1 Pick. 482; Thurston v. Little, 3 Mass. 432. A sale of land for nonresident taxes has been held invalid in this State, unless the invoices and assessment were left with the town-clerk for record. Cardigan v. Page, 6 N. H. 192. In these cases much stress is laid on the necessity of such deposit or record, in order that those taxed may inspect the invoice. That reason does not exist in this case, for this was a resident tax, and by statute the selectmen's books were open to the inspection of the inhabitants of the town. Statutes of 1805, 214. Without inquiring whether such an objection is open to the town that has received the taxes, or how far those cases are distinguishable from the present, it would be sufficient to hold that the clause in the act of 1791 was merely directory as to resident taxes, and that the validity of their assessment was not affected by non-compliance witb tbe statutory direction. A similar clause in tbe Revised Statutes, providing that tbe invoice and assessment shall be left witb tbe town-clerk for record before July 1st, was held directory only; at least, as to all such taxes as were collectable before that date. Scammon v. Scammon, 28 N. H. 431. Tbe act of 1791 merely required that such invoice and assessment, or copies of them, should be left seasonably witb tbe town-clerk for record. Statutes of 1805, 214. Tbe selectmen were to make and commit lists of their assessments to tbe collectors, witb warrants ; and tbe collectors were seasonably to collect such taxes. There seems to have been nothing in tbe statutes then in force that required such record in tbe town-clerk's office before tbe committal of tbe lists to tbe collectors, and, so far as tbe taxes of residents, at least, are concerned, tbe reasoning in Scammon v. Scammon is applicable.\\nBut even if such record or deposits were essential, as tbe transaction was an ancient one, tbe 'jury might have presumed a compliance witb tbe law. Blossom v. Cannon, 14 Mass. 178; Freeman v. Thayer, 33 Me. 84. They might have found, upon tbe evidence, tbe former existence, and tbe loss of tbe record, or that copies from tbe record bad been duly left with tbe town-clerk; New-Boston v. Dunbarton, 15 N. H. 205; 1 Gr. Ev. 509; Downing v. Pickering, 15 N. H. 349; Dillingham v. Snow, 5 Mass. 547; Stockbridge v. West-Stockbridge, 12 Mass. 400; and tbe books would have been competent on this question. Bow v. Allenstown, 34 N. H. 369; Boston v. Weymouth, 4 Cush. 538. They were tbe property of tbe defendants, kept by their agents, tbe selectmen, and seem to have come from their custody ; and whether open to tbe public inspection or not, were competent evidence against tbe defendants. Currier v. Boston and, Maine Railroad, 21 N. H. 223. If, then, these books showed tbe assessment in proper form, for seven successive years, of a tax upon Theodore Willey for his poll, that was competent evidence, upon which the jury might have found that he was so taxed for that term of time. As more than twenty years had elapsed since the taxation, the jury might have presumed the taxes paid. Andover v. Merrimack County, 37 N. H. 441; Grantham v. Canaan, 38 N. H. 269. If, then, these books contained the assessment of taxes for seven years successively against Willey, for his poll and estate, the motion for a nonsuit for this reason was properly overruled.\\n3. To rebut the evidence of Theodore Willey's poverty and inability to pay taxes during this period, introduced by the defendants, the evidence submitted by the plaintiff, tending to show that he, Willey, had money and other property during this time, was properly admitted. Wiggin v. Plummer, 31 N. H. 268.\\n4. That part of Nancy Willey's deposition, cited in this case, was properly rejected by the court. It was immaterial to the issue, and, besides, it was objectionable, as introducing mere hearsay.\\n5. The fact that Chandler Willey, having no settlement, except by derivation from Theodore Willey, was supported by the defendants, was competent. Hopkinton v. Springfield, 12 N. H. 329; Harpswell v. Phippsburgh, 29 Me. 317. As such evidence is received, because it is in the nature of an admission of the party sought to be charged, it is immaterial to whom it was made. No attempt is here made to charge the support of a pauper not having a settlement in Barnstead upon that town, but the plaintiffs are simply endeavoring to show that the pauper had a settlement there; and upon that question the admission of the defendants is competent, under the circumstances of this case. For this reason the cases, Peru v. Turner, 1 Fairf. 189; Peterborough v. Lancaster, 14 N. H. 390, are not in point. There are other cases where similar facts have been offered as an estoppel, and have been held not to be such. These are not in point, for the question in such cases was not whether such facts were evidence, but whether they were conclusive evidence.\\n6. The instructions as to the alleged mutilation of the books, which appear to have come from the defendants' custody, were sufficiently favorable to the, defendants, especially when taken in connection with the other evidence tending to show a settlement in Barnstead. 1 Phill. Ev. 447; Hargood v. Wright, Cowp. 86; Broom's Leg. Max. 726; 1 Kent Com. 157; 1 Gr. Ev. 87, 196; 1 Stark. Ev. 563. Some of the authorities make a distinction between the effect of the destruction of evidence and the mere non-production of it. Cross v. Bell, 34 N. H. 86, and authorities supra. But upon the instructions given, taken in connection with the other evidence, it is unnecessary to consider that question, as, in any view, the defendants were not prejudiced by the directions of the court.\\nUpon the questions arising as to the alleged mutilation of the books, it was proper for the jury to consider their whole appearance, and, among other things, any evidence they presented of a fraudulent alteration. Knight v. Heath, 23 N. H. 413, 414.\\n7. The objection, made to the statement of Hollins, that Merrill promised to pay the claim of Loudon in two weeks, would, no doubt, have been well taken, had that agreement been introduced for the purpose of showing, or had it been relied upon by the plaintiffs as tending to show, any contact by which the town of Barnstead was bound or became liable to pay the claim in question; but the witness had made certain statements in regard to the books of Barnstead, and it would seem that the plaintiffs relied upon these statements as tending to show that Theodore \\\"Willey had a settlement in Barnstead, or at least that the witness came to that conclusion from examining their books. The defendants then inquired if that claim was ever sued, and the witness answered, No, and there the matter was left, from which the defendants might perhaps reasonably assume, and. would probably assume, that the witness could have come to no such conclusions in regard to the liability of Barnstead, from an examination of their books. But to show how this fact was, and that it was merely to show the reason why no suit was brought upon this claim by Loudon after they had taken pains to investigate the case, the witness stated, upon inquiry, this arrangement with Merrill at the muster, and thus the witness, as the agent of Loudon, relying upon that agreement, took no measures to collect the claim; that the claim was not paid, and that ninety days had expired in which notice must be given. This simply explains why no suit was brought upon their claim by Lou-don ; and as the case' finds that this was the only purpose for which the evidence was introduced, we see no reason why it was not properly admitted for that purpose, as explanatory of a fact, drawn out on cross-examination of the witness Hollins.\\n8. The instructions as to the payment of taxes were sufficiently favorable to the defendants. Had there been no evidence upon this point, the jury, after such a lapse of time since their assessment, might have presumed them paid. They were in fact directed, that as evidence had been introduced by both parties upon this subject, they were to find according to the preponderance of the evidence, and of this the defendants have no reason to complain.\\n9. The questions l'aised by the exception to the jurors from Grilmanton, who served on the panel that tried this cause, were considered and settled in Bodge v. Boss, 39 N. H. 406. As the venires and return showed the facts, it was too late to take this objection after verdict.\\nThere must, therefore, be\\nJudgment on the verdict.\\nBellows, J., having heen of counsel, did not sit.\"}" \ No newline at end of file diff --git a/nh/461427.json b/nh/461427.json new file mode 100644 index 0000000000000000000000000000000000000000..dcce7402d61f2429b851b7f58ba7959dcd846bd7 --- /dev/null +++ b/nh/461427.json @@ -0,0 +1 @@ +"{\"id\": \"461427\", \"name\": \"Hook v. Philbrick\", \"name_abbreviation\": \"Hook v. Philbrick\", \"decision_date\": \"1851-12\", \"docket_number\": \"\", \"first_page\": 288, \"last_page\": \"301\", \"citations\": \"23 N.H. 288\", \"volume\": \"23\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Superior Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-10T21:00:24.344740+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Hook v. Philbrick.\", \"head_matter\": \"Hook v. Philbrick.\\nAn award will be invalid, if there he no notice of the time and place of hearing.\\nIn the year 1834, the parties to a canse agreed that the value of a piece of land, belonging to the defendant, should be determined by the appraisal of a third person. Twelve years- afterwards, in the year 1846, the plaintiff requested the arbitrator to make an appraisal. The parties met, but as the defendant desired to consult counsel, he requested that the matter, might be delayed, and they separated without fixing upon any future day for the hearing. Subsequently the arbitrator, at the request of the plaintiff, made an appraisal but gave no notice to the defendant. Held, that the award was invalid.\\nAn award will be invalid if made after the lapse of twelve years from the time of the submission, unless some reason be given for the delay.\\nDebt, on a bond dated December 23, 1834, for $200.\\nThe defendant craved oyer of the bond, and of the condition which is as follows:\\n\\u201c If the said Philbrick, shall convey, by warranty deed, with the usual covenants, and with a release of all rights of dower, to the said Charles and his heirs, a tract of land, out of said Philbrick\\u2019s field, in front of James T. Hook\\u2019s, in Hawke, and bounded on the road in front of said house, thirty feet on said road, and twenty feet in depth, the said Charles, paying or tendering to said Jedediah, the sum at which said bond may be valued and appraised by Nathaniel Webster, of Hawke, and if the said Philbrick, shall permit the said Charles, forever, to lay and deposite in any part of the road opposite to said field, without obstructing said Philbrick\\u2019s bars, any boards, lumber, materials or anything else whatever, then this obligation shall be void.\\u201d\\nHe also pleaded the general issue, with a brief statement of his defence, to wit:\\n1. That said Philbrick has performed, fulfilled, and kept all the conditions and agreements in said condition mentioned.\\n2. That the contingency has not yet happened, on which said Philbrick was bound to convey to said Hook, the tract of land therein mentioned.\\n3. That said Philbrick has, at all times, permitted said Hook to lay and deposite in any part of the road opposite to said field, without obstructing said Philbriek\\u2019s bars, any boards, lumber, materials, or anything else whatever. This was not contested.\\nIt appeared that in 1845, Philbrick executed a mortgage of his farm, including the parcel described in the obligation, which has not been satisfied.\\nIn 1846, Hook requested Webster, the appraiser named in the bond, to make an appraisal. Webster sent word to Philbrick, that he was going to appraise the land Hook claimed of him, and requested him to attend; and the parties and Webster met at the land to be appraised, which was spoken of, and pointed out; and the bond was produced and read. Philbrick then requested a delay, for the purpose of consulting counsel, to see if he was obliged to comply with the bond. His request was assented to, and the parties separated, without alluding to the question of the value of the property, and without any understanding as to the time or place of any subsequent meeting, and without Philbrick requesting an adjournment to any particular time or place. Sometime after, on the twelfth of November, 1846, at the request of Hook, and without any notice to Phil-brick, without going again upon the land, and without any meeting of the parties, or any hearing upon the subject, except that it appeared that Hook suggested to Webster, that he had by the bond, a privilege to lay lumber in front of Philbrick\\u2019s land, and that the value of the parcel to be appraised, was diminished by the circumstance, Webster, who had known the land well for twenty-five years before, appraised it at two dollars fifty cents, and gave Hook a certificate in writing, signed by him, that he had appraised the land at that price. But he gave no notice of his appraisal to Philbrick. This appraisal did not include the privileges described in the bond.\\nOn the same day, one J. S., at Hook\\u2019s request, went with this certificate to Philbrick, and read it to him, and he examined it, and J. S. then tendered to Philbrick $2.60, in silver money, as the amount of said appraisal, and stated to him that he did so at Hooks request; but he did not then ask for any deed.\\nPhilbrick complained of the appraisal, as being very low, and declined to receive the money, and the witness continued to keep the same in his possession.\\nIn May, 1847, Hook procured a draft of a deed to be made by a neighboring magistrate, and the said J. S., and the justice, at Hook\\u2019s request called upon Philbrick, and produced the bond, the certificate of appraisal, and the deed ; told him they came by request of Hook, and asked him to execute the deed, the said J. S., having withhim the money before tendered, and telling Mm he had the money ready to pay the appraised value, when the deed was executed. PMlbrick said he had mortgaged his land and did not see his way clear to execute the deed, but made no other objection, and declined signing it. It did not appear, that either J. S., or the justice, had authority to surrender the bond, if the deed was executed. The writ was dated May 10, 1847.\\nThe parties then agreed to take the case from the jury, and that judgment be rendered for the plaintiff, subject to a hearing in chancery; or for the defendant, according to the opinion of the superior court upon the foregoing case.\\nII. F. French, for the plaintiff.\\n1. The mortgage made by the defendant, disabled him to perform his contract, excused the plaintiff from the performance of any condition precedent, and was of itself a breach of the condition of the bond. Newcomb v. Brackett, 16 Mass., 161.\\n\\u201c It is implied in the contract on the part of the defendant, that he would do nothing by which he should be unable to perform it; and by making a deed to another person, he has disabled Mmself, and so virtually broken his contract.\\u201d Parker, C. J. Ibid, 165.\\n\\u201cA condition shall be broken if the party has disabled him self to perform it; as if the condition be to enfeoff the feoffor, and he enfeoffs a stranger.\\u201d Comyn\\u2019s Dig., \\u2018 Condition\\u2019 M (2.)\\n\\u201c So if he be disabled to perform in the same plight and condition, that it was when the condition was created. As if a condition be to enfeoff, and he leases for years to another. Cornyn\\u2019s Dig.,4 Condition \\u2019 M. (3,) ; Co. Lit., 221, a.\\nSo if he takes a wife; for she will be thereby entitled to dower if she survives. Ib ; Littletton, \\u00a7 357 ; Lovering v. Lovering, 13 N. H. Rep., 520 ; Brown v. Leavitt, 26 Maine Rep., 251.\\nThis is a contract to \\u201c convey by warranty deed,\\u201d &e., \\u201c a tract of land,\\u201d not merely to execute a deed of a certain form ; to deliver a worthless paper to the plaintiff\\nOn a covenant to \\u201c make a warranty deed, free and clear of all incumbrances,\\u201d the agreement is not satisfied by the making of a deed with covenants of warranty, &e., unless the grantor had the absolute, entire, unincumbered estate, at the time of the conveyance. Porter v. Noyes, 2 Grreenl. Rep., 22.\\nThe same opinion was intimated in Beach v. Steele, 12 N. H. Rep., 89, where Upham, J., says : \\u201c It seems to me, that the parties, by a covenant for a good deed of warranty, ordinarily understand something more than a mere deed in perfect form, and that they intend by it a conveyance of title with warranty.\\u201d\\nIn Little v. Paddleford, 13 N. H. Rep., 167, 175 ; Woods, J., cites with approbation, Judson v. Wass, 11 Johns. Rep., 584, going to the same extent.\\nHe also cites Everson v. Rutland, 4 Paige\\u2019s Rep., 628, that \\u201c a covenant to cause to be conveyed, by a good and sufficient warranty deed, is not complied with by the mere giving of a warranty deed, where the grantor has no title to the land, or where his title is imperfect\\nThe authorities go farther than is necessary for us, because here was a covenant, not to execute a deed of warranty merely, but to convey the land by a deed in that form. \\u201c To grant and convey land, means something more than to execute a deed in legal form, of land, of which one has no title at all, or an imperfect one.\\u201d Woods, J., 13 N. H. Rep., 174.\\nAn inchoate right of dower was held an incumbrance, within the principle. 2 Grreenl. Rep., supra 10 Johns. Rep., 266.\\nA mortgage has always been held such an incumbrance. Little v. Paddleford, 13 N. H. Rep., 167.\\nAn attachment, held such an incumbrance. Brown v. Bellows, 4 Pick., 193 ; Eastman v. Fiske, 9 N. H. Rep., 182.\\nThe law does not require a useless act of any party; and a precedent act is excused, when the other party puts himself voluntarily in a situation that he cannot perform his part of the contract.\\n\\u201c So if a condition be, to do upon request, and he is disabled to perform, there needs no request, for it would be in vain.\\u201d Comyn\\u2019s Dig., Condition, L., (11.)\\nIn the case of actions for breach of marriage promise, a declaration alleging a promise to marry on request, or in-a reasonable time, is supported by proof that the defendant has married another, without evidence of a request, or of the lapse of time.\\nThe defendant here might have procured an appraisal and tendered a performance on his part, had he desired to encumber his estate by mortgage.\\nHad the plaintiff here received a deed after the mortgage was executed, he would have gained nothing but a right to a small portion of the premises, by paying the incumbrance upon the whole.\\n\\u201c The law will not, in such circumstances, require a payment or tender by the plaintiff, for this would be to hazard an additional los3 without any possible advantage.\\u201d Parker, C. J., 16 Mass., 165.\\nThe condition is as completely broken by the execution of this mortgage, so far as the plaintiff is concerned, as if the defendant had conveyed away the estate by an unconditional deed.\\n2. The appraisal here was sufficient.\\nThere are no established rules for the conduct of such an appraiser. His conduct must be reasonable and fair.\\nHere the person agreed on to \\u201c appraise or value \\u201d was a neighbor who had known the land for twenty-five years, obviously selected because he did know the circumstances. All the facts bearing upon the value of the land, were known to him, after he had seen the bond.\\nThe defendant made no objection for want of notice. He asked no continuance for further hearing, but a mere delay to enquire as to the validity of the bond.\\nHook\\u2019s subsequent suggestion, as to his privilege to lay lumber upon the land, was proper, and not calculated to mislead.\\nReferees may ask each party separately his opinion of value, if they use their own judgment on the subject. Brown v. Bellows, 4 Pick., 180.\\nIn the case Bassett v. Harkness, 9 N. H. Rep., 164, there was evidence that the referees changed their report in consequence of statements privately made by a party.\\nNo evidence was offered tending to show the appraisal too low, and the court will not presume judicially that $2.50 was not a fair price for two square rods of land in Hawke.\\n8. The first tender was good.\\nThe plaintiff made no demand for a deed, in express terms.\\nHe was not bound either to demand a deed, or to tender a deed for execution to the defendant.\\nIt was enough for him to give notice of the performance of the conditions precedent, and it then became the duty of the defendant to convey, according to his bond.\\nA party who contracts to execute and deliver a deed, is bound to prepare the deed. Tinney v. Ashley, 15 Pick. 546.\\nIn Fairbanks v. Dow, 6 N. H. Rep., 266, there was no tender of payment or performance, and the point, as to a formal demand for a deed, wras not examined.\\nThe idea that the plaintiff -was bound to prepare and tender a deed ready to execute is absurd. What should he tender ? a blank sheet of paper ? or a blank deed ? or a blank filled up ? \\u2014 or further, a deed in form sealed; and must he tender also, two witnesses and a magaistrate, and the wife to release dower ? A blank sheet of paper would be just as good a deed, as a deed signed and not witnessed.\\nIn Buffum v. Buffum, 11 N. H. Rep., 451, where the contract was similar, it was conceded on all sides, that it was the grantor\\u2019s duty to prepare his deed.\\n4. The last tender was sufficient, although in form conditional. It was a tender of performance, on the part of the plaintiff.\\nThe payment by him, was by the bond, not a condition prececedent, but an'act concurrent with the delivery of the deed.\\nWhere concurrent acts are to be performed by parties at the same time, the party sueing is required to aver only, that he was ready and willing, without alleging an offer to perform, and that the defendant was requested, but refused. Tinney v. Ashley, 15 Pick., 546, 552.\\nBut clearly, if the appraisal was valid, the plaintiff was not bound either to tender money, or demand a deed; the defendant\\u2019s mortgage having put it beyond his power to execute a deed, ac cording to the bond., The plaintiff could do no more, than to procure an appraisal, and notify the defendant of it; which the case finds was done, in November, 1846. The defendants neglect to free the land from incumbrance, in a reasonable time after, was a breach of his bond.\\nAlthough this action was commenced soon after the second tender, yet the refusal of the defendant to convey, made him liable to a suit, forthwith.\\nThe case does not show how long a time elapsed, after the tender, before suit, and the point is therefore, not fairly raised. Had not the defendant declined to convey, he would have been entitled to a reasonable time, if in a situation so that he could do it.\\nBut he declined to execute the deed, and gave as his reason, that he had mortgaged his land.\\nBy this refusal, he waived any informality in any of the prior proceedings. He did not refuse for want of notice; for unfairness in the appraisal; for want of a sufficient tender; but for a reason, which was avowed, and which rendered it impossible for him to convey, as he had contracted.\\nDefect of notice in all mesne process, is held to be waived by an appearance.\\nWhere a party tenders, in performance of a condition, a draft of a bond not executed, and the other party declares that he will not accept such a bond, if executed, such declaration is a waiver of the signing and sealing of the bond. Stanley v. Stanley, 2 N. H. Rep., 364.\\nSo a tender of bank bills is sufficient, if refused on other grounds; and it is not necessary to produce, and offer money, where there is a refusal to accept it. Such refusal is a waiver of other objections. Sargent v. Graham, 5 N. H. Rep., 440.\\nThe defendant\\u2019s fourth point, that the plaintiff has waived his right by delay, is not open to him under this plea and brief statement, which give no notice of such a defence; and if it were, the statute of limitations, as to sealed instruments, suggests the time which shall be held' reasonable for performing their conditions. The case finds, that \\u201c it did not appear that either J. S., or the justice, had authority to surrender the bond, if the deed was executed.\\u201d An examination of the condition of the bond will show, that it should not be surrendered, \\u201c if the deed was executed,\\u201d because it contained security for the use of another piece of land.\\nMarston, for the defendant.\\n1. The event upon which the defendant was bound to convey, has never happened.\\nHo was bound to convey, only after he had been paid, or tendered the sum at which the land should be appraised or valued by Webster.\\nThe defendant contends there has been no valuation that can bind him, for he was not present \\u2014 had no notice and no knowledge of it. Elmendorf v. Harris, 23 Wend., 628.\\n2. The valuation, as made by Webster, was grossly inadequate.\\nIt was made at the plaintiffs suggestion, who conferred with Webster alone about it, and made suggestions to him why he should appraise the land low. Bor this reason the proceeding is void. Bassett v. Harkness, 9 N. H. Rep., 164, and cases there cited.\\nIt is plain that a hearing was contemplated, for all parties met once, at or near the land, and all agreed to a postponement.\\nIt matters not that the defendant moved the postponement, for all assented to it.\\nThe plaintiff says the defendant did not object for want of notice, and so waived any informality.\\nBut want of notice is not an informality merely; it is a substantial and fatal defect.\\nThe mere assignment of one excuse, for not performing a contract, is no waiver of any other defence. Clement v. Clement, 8 N. H. Rep., 210.\\nBut the case finds that the defendant did complain that the appraisal was very low.\\n3. That the defendant did not execute a deed when $2.50, was tendered him by J. S., was no breach of the condition of the bond, for no deed was tendered him to execute, nor was any deed demanded of him, and of course tlio defendant gave no refusal. In an agreement to convey land on the payment of money, the vendor must not only tender the money, but demand a deed, and after waiting a reasonable time, must present himself to receive it. Fairbanks v. Dow, 6 N. H. Rep., 506; Fuller v. Williams, 7 Cow., 53 ; Eames v. Savage, 14 Mass., 425 ; Newcomb v. Brackett, 16 Mass., 161.\\nNot executing a deed in May, 1847, as requested, was no breach of condition of the bond, because there was then no payment, or tender of the money, and because a reasonable time was not given the defendant to execute a deed before the commencement of this action. The writ is dated, May 10,1847.\\nThe last three cases above cited, are authorities on this point.\\nBut the plaintiff says, payment of the money was not a condition precedent, but an act concurrent with the delivery of the deed.\\nNot so. This is not a case of mutual covenants. It is not an agreement of one party to convey for a price, and of the* other, to receive the conveyance, and pay the price-. The plaintiff in this case made no engagement. He was undeino obligation to pay the appraisal, and receive the conveyance.\\nIt was simply an engagement on the part of the defendant, to-do certain acts, in certain events.\\nThe bond specifies no time when the defendant shall convey, but mentions events, upon the happening of which, he agrees to convey.\\nThe appraisal, and payment or tender, are strictly conditions precedent to the right of the defendant to have a conveyance. Surely the defendant was not to part with his land without payment or tender. Fairbanks v. Dow, 6 N. H. Rep., 206 ; Drummond, v. Churchill, 5 Shepley, 325 ; Hardin v. Kreitsinger, 17 Johns. Rep., 293; Little v. Frost, 3 Mass., 106 ; Smith v. Wilson, 8 East., 437.\\nA covenant to convey land, \\u201c on the vendor\\u2019s being at half the expense to procure title,\\u201d also, a covenant to convey \\u201cwhen the consideration money is paid,\\u201d have been held to be conditions precedent.\\n4. The plaintiff cannot now claim to have the condition of the bond performed at all. lie has waived the right, by his delay.\\nHe was bound to cause an appraisal to be made \\u2014 to pay or tender the amount, and demand performance of the condition of the bond in a reasonable time \\u2014 which was not done.\\nThe bond was executed in December, 1834, and the plaintiff made no demand of performance for twelve years. The defendant cannot be required to hold himself in readiness through all time, to perform the condition of this bond. Morse v. Bellows, 7 N. H. Rep., 565.\\n5. The mortgage was not a breach of the bond.\\nThe bond did not require the obligor to make a good title, but to execute a deed with the usual covenants, showing an intention to rely on the covenants in the deed, and not on the bond, for a perfect title. The covenants in the bond, referred to the instrument, and not to the title. Tinney v. Ashley, 15 Pick., 546; Aiken v. Sanford, 6 Mass., 495; Parker v. Parmlee, 20 Johns. Rep., 130.\\nBut in any event the mortgage was no breach of the bond, because the obligor had it in his power to free the premises from the incumbrance, at any time.\\nA mortgage is only security.\\nThe mortgagor is deemed to be the owner of the property, as to all persons except the mortgagee and his representatives. Hitchcock v. Hunnington, 6 Johns. Rep., 290; Southerin v. Mendum, 5 N. H. Rep., 420; Ellison v. Daniels, 11 N. H. Rep., 270.\\nThe case of Newcomb v. Brackett, cited by the plaintiff, was an absolute release and quit-claim.\\nSo in Porter v. Noyes, the inchoate right of dower, was an incumbrance which it was not in the power of the obligor to remove; besides the language inported freedom from incumbrances; the words in that case were, \\u201c you shall make me a deed free and clear from all incumbrances.\\u201d\", \"word_count\": \"4594\", \"char_count\": \"25530\", \"text\": \"Gilchrist, C. J.\\nThere are two objections to the award in this case, either of which is sufficient to defeat the action.\\nIn the first place, notice should have been given to the defendant, of the time when the appraisal was to be made. At the meeting in the year 1846, both parties attended, but nothing was done because the defendant wished the advice of counsel concerning the bond. Upon this, the parties separated. There was no adjournment of the hearing, but a mere separation without any understanding, or agreement about a future meeting. Subsequently, without any notice to the defendant, and at the request of the plaintiff, the arbitrator made an appraisal of the land.\\nUpon general principles, some notice of the time and place of hearing, by the referee, should have been given. Parker, J., Abbe v. Norcott, 8 N. H. Rep., 53. This was a matter, in which the defendant had an interest, concerning which, he ivas entitled to make suggestions and arguments to the referee, and upon the most obvious principles of justice and fair dealing, he had a right to an opportunity of being heard. An award made under a rule of court, may be set aside for such an irregularity as want of notice of the meeting. Anon., 1 Salk., 71. If arbitrators, having proceeded in a reference, inform the defendant, present at the meeting, that they would suspend their proceedings till books of accounts had been examined, but afterwards make an award in his absence, without examining the books, the award will bo set aside, the court holding that at all events, the defendant should have had notice that the ai'bitrators considered it unnecessary to inspect the books. Pepper v. Gorham, 4 J. B. Moore, 148. Where the defendant's attorney, swore he understood the arbitrator meant to call another meeting, the award was set aside. Dodington v. Hudson, 1 Bing., 384. In an anonymous case, 2 Chitty, 44, on a reference of an action for not repairing a house, the arbitrators made their award upon a view of the premises, without calling the parties before them. The court set asido the awrard, and Lord Ellenborough said, that although the premises might almost tell their own tale, yet there might be other facts which should be inquired into, such as payments by the party, excuses for not repairing, &c. In the case of Bedington v. Southall, 4 Price, 232, an arbitrator. examined one of the defendant's witnesses, on the part of the plaintiff, in the absence of the defendant, and did not give the defendant, any opportunity to cross-examine the witness. Richards, Chief Baron, and Garrow, B. thought the award should be set aside, Gtarrow saying that the arbitrator was bound to appoint a day for the examination of the witness, otherwise the award could not have been expected, and must have been a surprise; but as the court were equally divided, the award was not set aside. In the case of Peters v. Newkirk, 6 Cowen 103, the parties agreed that a certain shearing machine should be appraised by a third person, and he made the appraisal at the request0 of the plaintiff, and in the absence of the defendant-, who was not notified. It was held that the appraisal was irregular, and not conclusive upon the defendant, it being said by the Gourt, (Woodworth, J.,) \\\" both parties should have had notice, so that an opportunity might be afforded to submit their remarks to the appraiser, and adduce proof if deemed necessary. The plainest dictates of natural justice, require that no man shall be condemned unheard.\\\" We think that justice and authority, both unite in declaring that such an award as the present one, is invalid.\\nIn the second place, the delay in calling upon the appraiser to act, was entirely unreasonable. It is to be noticed, that the plaintiff was the person, upon whom the duty of calling out the referee would seem properly to devolve, and not the defendant. He desired a conveyance of the land from the defendant, for which he was to pay the appraised value. He was then to do an act, for the purpose of ascertaining what sum he was to pay or tender to the defendant, in order to entitle himself to a deed, while the defendant was to remain passive. As the contract was silent upon the subject of time, the law settles that the act must be performed within a reasonable time, and what is a reasonable time, is a question of law. Morse v. Bellows, 7 N. H. Rep., 566. It must depend on the situation of the parties, and the subject matter of the contract. After so long a period as twelve years, circumstances might have entirely changed in relation to the value of the land, the condition of the appraiser, and the sit- nation of the parties. It does not appear, how the facts were upon these points, and we are called upon in the absence of all evidence, except the lapse of twelve years, to say whether the delay was unreasonable ; and as nothing has been offered to excuse or account for the delay, we think the award was made too late to possess any validity.\\nJudgment for the defendant.\"}" \ No newline at end of file diff --git a/nh/464820.json b/nh/464820.json new file mode 100644 index 0000000000000000000000000000000000000000..1c809145a9ed8ea9f47afdfc602e0fcbfc75fde0 --- /dev/null +++ b/nh/464820.json @@ -0,0 +1 @@ +"{\"id\": \"464820\", \"name\": \"Corbett v. Norcross\", \"name_abbreviation\": \"Corbett v. Norcross\", \"decision_date\": \"1850-01\", \"docket_number\": \"\", \"first_page\": 366, \"last_page\": \"369\", \"citations\": \"20 N.H. 366\", \"volume\": \"20\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Superior Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-10T19:39:09.786736+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Corbett v. Norcross.\", \"head_matter\": \"Corbett v. Norcross.\\nThe fifth section of chapter 190, Revised Statutes, giving to a party against whom an action may he brought for the recovery of real estate, the right to file with his plea a brief statement, claiming betterments, is not in conflict with section 3, chapter 187, Revised Statutes, providing that no special plea shall ever be required in any civil action, except the plea of title to real estate before justices of the peace.\\nA brief statement, claiming betterments according to the provisions of section 5, chapter 190, Revised Statutes, may, in the discretion of the court, be filed at the second term after the entry of the action, upon such terms as the court may impose.\\nWrit or Entry. The action was commenced in the eastern judicial district of this county, and entered at the November term of the Common Pleas, 1848. At the November term, 1849, the defendant first pleaded the general issue, and then moved to file a suggestion under the statute for betterments. To this the plaintiff objected. The court, regarding such suggestion as governed by the same rule as a special plea, or brief statement, was of opinion that the same might be filed upon terms; that the action should be continued, if the plaintiff so elected, and that the defendant should pay costs of the term and tax none. The defendant desired the benefit of an exception to this proposed order, to which the court assented; and thereupon the questions arising upon the proposed order and notice were reserved and assigned to this court for their determination.\\nBell and I/yford, for the plaintiff.\\nPerley, Quincy and Thompson, for the defendant.\", \"word_count\": \"1135\", \"char_count\": \"6508\", \"text\": \"Eastman, J.\\nThe allowance for betterments is one given by statute, and the same section which gives the right to the defendant to set up the claim, in an action against him for the land in his possession, also prescribes the manner in which it shall be done.\\nBy section 5, chapter 190, Revised Statutes, it is provided that \\\" any person, against whom any action may be brought for the recovery of real estate, may with his plea file a brief statement, setting forth that he and the persons under whom he claims have been in the actual, peaceable possession .thereof, under a supposed legal title, for more than six years before the action was commenced, and that the value thereof has been increased by them by buildings or other improvements.\\\"\\nSection 3, chapter 187, Revised Statutes, is as follows : \\\"No special plea shall ever be required in any civil action, except a plea of title to real estate before justices of the peace. Either party may give in evidence any matter in support or defence of the action uxxder the general issue, upon filing in court a brief statement thereof within such time as the coux-t may order.\\\"\\nAnd by the 9th section of chapter 171 of the Revised Statutes, it is provided that the justices of the Superior Court shall make, from time to time, all necessary rales and orders for conducting the business in said court and in the Court of Common Pleas.\\nUnder this last provision of the statute cex-tain rules have been adopted for the government of the proceedings and business of the courts, one of which (rule 7) is as follows : \\\" All special pleas shall be filed witlx the clerk of the court, or delivered to the plaintiff's attorney, within ninety days from the commencement of the texun when the action is entex'ed; othex'wise, the cause shall be tried upon the general issue, and no special plea shall be received othex'wise than as aforesaid, but upon payment of all costs occasioned by the neglect to file the same in season.\\\" The 10th rule provides that the rule relating to the filing of special pleas shall apply to \\\"brief statements,\\\" filed in pursuance of the statute.\\nIf, then, the statute giving the defendant the right to file with his plea a brief statement claiming betterments, is not to be construed as an exception to the general statute providing that special pleas shall not be required, hut that brief statements may be filed instead, then the ruling of the court below was correct. And upon examination we can discover no good reason for excepting this from the general statute. One object of a special plea is the introduction of new matter to the notice of the opposing party, of which he could not be presumed to have any knowledge, or be prepared to meet under the general issue. Brief statements are substitutes for special pleas in this respect, and are designed for the same purpose, without the forms and technicalities of strict pleading. Anything which would require to be pleaded specially, if not so pleaded must be embraced in a brief statement; otherwise, the party cannot give it in evidence under the general issue. Now there can be no doubt that, if there were no provision of the statute permitting brief statements to be filed instead of special pleas, such matter as a claim for betterments would have to be pleaded specially. A party coming into court with an action for the recovery of real estate would not be obliged to be provided with evidence to rebut any claim that might be set up for betterments in addition to proof of his title. The claim itself upon a writ of entry is one specially given by statute, and, were it not for the provision that it may be shown under a brief statement, would, upon the general principles of pleading, have to be set forth specially; or, under the general statute, might be set forth in a brief statement. \\\"We therefore conclude that the special statute, giving a party the right to file with his plea a claim for betterments, is in no respect in conflict with the general statute in regard to pleading; that the special statute in this respect is in fact embraced within the terms of the general one ; and that a brief statement, claiming betterments, must come under the operation of the rules of court before alluded to, and be filed accordingly.\\nAccording to these views this brief statement should have been filed, under the 7th and 10th rules, within ninety days from the commencement of the term when the action was entered. It was not so filed; but still it was within the discretion of the Common Pleas to receive it at a subsequent time, upon the payment of all costs occasioned by the neglect to file it in season. That discretion the court below undertook to exercise, and this court will not interfere with it. The brief statement could be received at the term it was offered, and the imposition of terms was correct.\\nRuling sustained.\"}" \ No newline at end of file diff --git a/nh/467657.json b/nh/467657.json new file mode 100644 index 0000000000000000000000000000000000000000..513087efae7c181d0fbdd909f3bc175cf9f74b9b --- /dev/null +++ b/nh/467657.json @@ -0,0 +1 @@ +"{\"id\": \"467657\", \"name\": \"Page vs. Olcott\", \"name_abbreviation\": \"Page v. Olcott\", \"decision_date\": \"1843-07\", \"docket_number\": \"\", \"first_page\": 399, \"last_page\": \"403\", \"citations\": \"13 N.H. 399\", \"volume\": \"13\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Superior Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-11T00:23:09.109454+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Page vs. Olcott.\", \"head_matter\": \"Page vs. Olcott.\\nP. and O. were the owners of adjoining farms. The fence between said farms had been duly dmded, and a record thereof made. About ten acres, part of P.\\u2019s farm, bounded on all sides by other portions of his said farm, was enclosed by a good and sufficient fence. The sheep of O., through the insufficiency of that part of the fence between said farms which P. was bound to repair, escaped from the close of O. into the pasture of P., and thence into said enclosure of P. surrounded by said fence. P. brought trespass against O. for the breaking and entering said ten acre tract, and injuring the crops thereon. \\u2014 Held, that P. tras not entitled to maintain the action.\\nTrespass quar e clausum fregit. The declaration alleged that the defendant, on the 12th day of August, 1841, and on divers other days and times between that day and the day of the purchase of the plaintiff\\u2019s writ, broke and entered the plaintiff\\u2019s close, containing about ten acres, bounded on all sides by other parts of the plaintiff\\u2019s farm, and as the fence runs, &c., and with certain sheep trod down and consumed the plaintiff\\u2019s crops, &c.\\nThe defendant pleaded the general issue.\\nThe plaintiff introduced evidence to show that the sheep of the defendant broke into the close described in the plaintiff\\u2019s declaration, at the times alleged, and that said close was surrounded with a good and sufficient fence.\\nBut it appeared that the defendant\\u2019s farm lay adjoining that of the plaintiff, \\u2014 that there had been between the former owners of said farms a division of the fence, on the line between them, duly made and recorded, \\u2014 that the part of said fence which the defendant was bound to maintain was kept in sufficient repair, and that the sheep escaped from the defendant\\u2019s enclosure into the plaintiff\\u2019s pasture, through the insufficiency of the fence which the plaintiff was bound to repair, and thence into the lot mentioned in the declaration.\\nThe court below being of opinion that the plaintiff, under these circumstances, was not entitled to maintain this action, a verdict was taken for the defendant, by consent, subject to the opinion of this court upon the foregoing case.\\nHcmderson, for the plaintiff,\\ncontended that the sheep in this case did not break into the enclosure described in the declaration, through a fence which the plaintiff was bound to keep in repair, as against the defendant, and consequently that the action is well maintained. He cited 1 N. H. Laws 196, sec. 9, and Avery vs. Maxwell, 4 N. H. Rep. 36.\\nEdwards, for the defendant,\\nargued that division fences are for the benefit of adjoining owners, and are designed to promote the peace of both parties, \\u2014 that the plaintiff had neglected her statute duty in relation to repairing the division fence between the adjoining lands of the parties, while the defendant had fully performed his duty in that respect, and that the escape of the sheep was wholly through the wrong or fault of the plaintiff. He cited the case of Rust vs. Low, 6 Mass. R. 99.\", \"word_count\": \"1526\", \"char_count\": \"8448\", \"text\": \"Woods, J.\\nIn the reported opinion of the court in the case of Rust vs. Low, 6 Mass. R. 99, Mr. Ch. Jus. Parsons cites a case thus: \\\" The case of 36 H. 6 is not reported in-the. Year Books, but there is a short statement of it in Fitz. Abr. Bar. 168. It is thus: ' Note that it was adjudged by the court, if my beasts go into the close of another, which is adjoining to my close, for the defect of the close of the other, and further go into another close of the other, that I shall not be punished because I do not retake them and put them again into my close, until reparation be made of the other close, because they would go again.' That I have given the true translation (says he) appears from Jenk., 4 Cent. Ca. 5. The rule, as there laid down, is, if A has green acre adjoining to his own close while acre, which adjoins to B's close black acre, which A ought to fence against, if B's cattle go from his black acre to A's white acre, and thence to A's green acre, this is no trespass, because A did not fence his white acre against B's black acre.\\\"\\nIn the case cited, it was in effect decided to be through the default of A in neglecting to fence his close white acre adjoining black acre the close of B, that the cattle of B escaped from his close black acre, and committed the injury complained of, in A's green acre ; while it was holden that B was faultless in putting his cattle into his close, and could not be made responsible for the consequences of the negligence of A.\\nThe rule of law stated in the citation from the 4 Cent. Ca., and which would seem to be the same reported in Fitz. Abr. Bar. 168, would seem to be a just rule, and one resting upon sound reason. It would be wholly unreasonable to require one to keep his cattle upon his own land, or to hold him responsible for damage done by reason of their escaping into an adjoining close through defect of a fence which it was the duty of the owner of the adjoining close to keep in repair.\\nTo hold such a doctrine would be to hold one person responsible for the wrong of another, and to give that other advantage from his own default, which would be in conflict with the clearest principles of law and reason.\\nRegarding the doctrine of the case cited from Fitz. Abr. and the Cent. Ca. as sound law, it is evidently applicable to the case under consideration, and decisive of it. That case clearly decides that the plaintiff can maintain no action under the circumstances of his case, and plainly indicates the rea son to be, that it was not the duty of the defendant to make such repairs as would have been necessary to prevent the first aggression, or a repetition of the trespass, and that the escape must be regarded as happening through no fault of the defendant.\\nThe present case finds that the defendant's land adjoined that of the plaintiff; that a division of the fence between the lands of the parties had been duly made and recorded ; that the sheep of the defendant escaped from his enclosure into the plaintiff's pasture lands, through the insufficiency of that portion of the fence which the plaintiff was bound to repair, and thence into the locus in quo.\\nWe cannot regard the defendant as at all in fault in the matter of the escape of the sheep, or of the injury and loss sustained by the plaintiff. The defendant placed his sheep in his own close, where he had an unquestionable right to place them, and against which the plaintiff, by law and in duty, was bound to keep a good and sufficient fence. That duty, however, was not performed, and by reason of its nonperformance the plaintiff suffered damage in her property. The consequences of the neglect cannot be visited upon the party no wise in fault. York vs. Davis, 11 N. H. Rep. 241.\\nAnd it cannot alter the case, as was contended by the counsel for the plaintiff, that the locus in quo was surrounded by a good and sufficient fence, which the plaintiff was not bound to keep in repair, as against the defendant. In the case cited by Parsons, it must be understood that the close in which the damage was done, was separated from the first mentioned close by a fence; for, otherwise, there could have been but one close. It is true, that the character of the fence around the locus in quo in that case is not stated, nor can it be material, upon the principles of that decision. The sheep having escaped from the pasture of the defendant through the default of the plaintiff, as between the parties the damage resulting therefrom must be considered as resulting from the same default.' The defendant was deficient in no duty, and was in no default. The plaintiff's negligence must be regarded as occasioning the damage sustained. It is a fair presumption, which the law will make, that if the plaintiff had performed her duty properly, in repairing her part of the division fence, the sheep would not have escaped from the pasture of the defendant, and the damage complained of would not have been sustained. And it is clear, that while, under the circumstances of the case, the plaintiff is in law to be regarded as having contributed to the result of which complaint is made, she can have no action for the damage sustained, against the defendant, who has not occasioned it either by positive wrongful acts or by any negligence whatsoever.\\nWe a.re clearly of the opinion, therefore, that the ruling of the court below was correct, and that there must be\\nJudgment on the verdict.\"}" \ No newline at end of file diff --git a/nh/471335.json b/nh/471335.json new file mode 100644 index 0000000000000000000000000000000000000000..17f90107d61cf0fa47d7295e88cd0fde23374534 --- /dev/null +++ b/nh/471335.json @@ -0,0 +1 @@ +"{\"id\": \"471335\", \"name\": \"Clark & a. v. Nichols & a.\", \"name_abbreviation\": \"Clark v. Nichols\", \"decision_date\": \"1872-12\", \"docket_number\": \"\", \"first_page\": 298, \"last_page\": \"300\", \"citations\": \"52 N.H. 298\", \"volume\": \"52\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Supreme Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-10T23:18:01.386887+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Clark & a. v. Nichols & a.\", \"head_matter\": \"Clark & a. v. Nichols & a.\\nIn 1864 a school district was indebted to the petitioners. In 1866 it was united with other districts, and ceased to hold district meetings. In 1870 the petitioners recovered judgment upon their claim, counsel having appeared for the district. In 1872 a voter in the original district petitioned the selectmen to fill vacancies in the district offices, which they refused to do. Held, that the judgment must be regarded as valid, and as establishing the fact that the district was capable of being sued, and that a mandamus must issue commanding the selectmen to fill said vacancies.\\nPetition, by Daniel Clark and Isaac W. Smith against Josiah H. Nichols, Ezra C. Mudgett, and William T. Morse, selectmen of Weare.\\nThe facts sufficiently appear in the opinion of the court.\\nClark and Smith, pro se.\\nCross & Burnham, for the respondents.\", \"word_count\": \"1245\", \"char_count\": \"7049\", \"text\": \"Bellows, C. J.\\nThe petition is for a mandamus to require the selectmen of Weare to appoint a clerk, prudential committee, and moderator to fill the vacancies in those offices in school district No. 11 in Weare.\\nIt proceeds upon the ground that this district was indebted to the petitioners on August 4, 1864, and that afterward they brought their suit against the district on said claim, and at the January term, 1870, of the supreme judicial court, recovered judgment against the district for $33.60 and costs taxed at $37.98, upon which execution had been issued and returned unsatisfied, and an alias execution is now issued and not returned.\\nThe petitioners seek to have those offices filled, that they may take the necessary steps to obtain satisfaction of their execution, under sections 4 and 5 of the Gen. Stats., ch. 220,\\u2014that is, by leaving with such prudential committee a copy of the execution, that he may pay the same, or call a meeting of the voters of the district to raise by their vote the necessary means to pay it, as provided in section 5.\\nThe petition alleges that said district still remains a body corporate, for the purpose of maintaining and defending suits, receiving and conveying property, voting taxes to pay its debts, and settling its concerns, although in 1866 it was united with districts Nos. 12 and 23, forming the Clinton Grove union school district. The petition also alleges that those offices are vacant, and that, although a petition was presented by Moses A. Hodgdon, a resident and voter in district No. 11, to said selectmen on April 27, 1872, requesting them to fill those vacancies, they have ever since neglected and refused to do it.\\nThe answer admits that the records of said court show such a judgment in favor of the petitioners, but alleges that it was void because at that time there was no such school district as No. 11, and no officers or agent of such district; that the district was dead, so far as any action for or against it could be had, although they admit that the names of George, Foster & Sanborn appear on the docket as attorneys for said district from the entry of the action till judgment. They,in terms, deny that these vacancies exist, but admit the presentation of Hodgdon's petition, and the neglect of the selectmen to fill the offices.\\nAs to the validity of the judgment, it cannot now and in this way be controverted; but it must be assumed, on the facts before us, that George, Foster & Sanborn were duly authorized to appear as attorneys for the district\\u2014Bunton v. Lyford, 37 N. H. 512\\u2014and the judgment must therefore be regarded as valid and binding on the district; and it must also be regarded as establishing the fact that district No. 11 was a corporate body, and capable of being sued.\\nThe answer to this is, that school districts Nos. 11,12, and 23, in said town of Weare, sometime prior to July 6, 1866, by a vote of the districts, united and formed one district, and that this union was ratified and confirmed by an act of the legislature of July 6, 1866, making a new district known as the Clinton Grove union school district. This appears to be the fact; and yet, by law of July 13, 1854, ch. 1540, revised and reenacted in Gen. Stats., ch. 78, sec. 24, district No. 11 remains \\\" a body corporate so long as necessary for the purpose of maintaining and defending suits, receiving and conveying property, voting taxes to pay its debts, and settling its concerns.\\\"\\nThe judgment then establishes the fact that district Nor 11 was a corporate body, capable of contracting, when the debt for which judgwas rendered was created; and, under the law which is quoted, its existence continues for the purpose of raising the means of satisfying this judgment. The mode of doing that is through the prudential committee of that district; but if that office is vacant, it becomes necessary to fill the vacancy, and that may properly be done by the selectmen, who are empowered, by section 13 of ch. 79, Gen. Stats., to fill a vacancy in the offices of clerk or prudential committee.\\nThe petition alleges that a vacancy exists in those offices; and, although the answer formally denies it, yet in another part of the answer it is alleged, in reference to the suit aforesaid, that there was no officer or agent of the district; and the reason for neglecting to fill the vacancies upon the application of a voter is alleged to be, that the selectmen were in doubt whether there was any such district, or what part of the original district No. 11, if any part, would be liable to pay this claim, and not that there was no vacancy ; and it was admitted that, since the organization of the new union district, there had been no meeting for the choice of officers in district No. 11. It is evident, therefore, that vacancies do exist in those offices.\\nIt is urged by the counsel for the respondents, that district No. 11 ceased to be a corporate body on the formation of the Clinton Grove union school district; but, for the reasons assigned, we think otherwise. They also urge that, on the division of district No. 11 -and the formation of the new union district, there ought to have been an apportionment of the debts. This, we think, is quite probable, \\u2014 or, at least, when district No. 11 voted to unite with Nos. 12 and 23 and form one district, it ought to have made provision for its debts. However that may be, the rights of these petitioners could not be affected by such changes, but they still had the right to look to the old corporate body for the payment of its debt. It appears in evidence, that in September, 1866, a portion of district No. 11 was severed from it and annexed to district No. 8. Whether that portion would continue to be liable with the rest of the old district for these debts is not a question here, although it would be the safer way to appoint to the offices in question persons residing in the part of district No. 11 not annexed to No. 8.\\nUpon these views, the parties having been fully heard, a peremptory mandamus should issue, commanding the respondents to appoint a clerk and prudential committee for school district No. 11 in Weare, to fill the vacancies in those offices.\"}" \ No newline at end of file diff --git a/nh/475397.json b/nh/475397.json new file mode 100644 index 0000000000000000000000000000000000000000..b1fe56c55f3d747bc41c3f8232ecbd1463ef9812 --- /dev/null +++ b/nh/475397.json @@ -0,0 +1 @@ +"{\"id\": \"475397\", \"name\": \"Kimball v. Milford\", \"name_abbreviation\": \"Kimball v. Milford\", \"decision_date\": \"1874-06\", \"docket_number\": \"\", \"first_page\": 406, \"last_page\": \"413\", \"citations\": \"54 N.H. 406\", \"volume\": \"54\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Supreme Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-10T21:04:11.394776+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Kimball v. Milford.\", \"head_matter\": \"Kimball v. Milford.\\nIf a railroad corporation, situated in another state, pays a specific tax upon all its capital invested or expended, whether represented by capital stock or indebtedness of the corporation, and such taxation is declared to be in lieu of all state, county, township, or other taxes in that state, and it appears that such specific tax was intended to be a fair equivalent for the taxes that would otherwise be laid on such property by the ordinary means of taxation, such property should not again be taxed in this state to the owners of shares of the capital stock of such corporation.\\nPetition for abatement of tax, by John Kimball, against the town of Milford. The petitioner resided in said town April 1,1873, and owned ten shares of the capital stock of the Michigan Central Railroad, a corporation created by the laws of Michigan, and with its railroad wholly located in that state. The selectmen of Milford assessed a tax of \\u00a7>15.50 on said shares against the petitioner as of that day. The petitioner offers to prove that he in all respects complied with the laws in respect to giving in his invoice of taxable property for that year, duly applied to said selectmen to abate said tax on the ground that the shares were not liable to taxation here, and informed them that they were subject to taxation, and were taxed for that year, in Michigan, under the laws of that state. The selectmen refused to make the abatement, and therefore this petition was filed. A tax was assessed upon said shares against the corporation for said year, and paid, in conformity with the provisions of the charter of said corporation, approved March 28, 1846, and of the compiled laws of Michigan, vol. 1, cli. 22, being ch. 21 of the Revised Statutes of Michigan of 1846, and no tax in any other form was assessed on the shares in that state. Either party may .refer to the provisions of the charter, and of the constitu tion and laws of Michigan bearing upon the question arising upon said petition. The petition is to be dismissed, or the tax abated, or other order made, according to the opinion of the court upon the foregoing facts.\\nCase reserved.\\nGr. Y. Sawyer Sawyer, Jr., for the petitioner.\\nThe Michigan Central Railroad was incorporated by act of the legislature of that state, approved March 28, 1846 ; and sec. 33 of its charter declares that the corporation, \\u201cafter February 1, 1851, shall pay to the state an annual tax of three fourths of one per cent, upon its capital stock paid in, including'the two millions of purchase-money paid to the state, and also upon all loans made to said company for the purpose of constructing its road, or purchasing, constructing, chartering, or hiring steamboats, * * * and the property and effects of said company, whether real, personal, or mixed, shall, in consideration thereof, be exempt from all and any tax, charge, or exaction, by virtue of any law of this state, now or hereafter to be in force, except penalties by this act imposed.\\u201d In sec. 39 the right is reserved to the state to alter, amend, or repeal the charter, at any time after thirty years from its passage, by a vote of two thirds of each branch of the legislature.\\nThis mode of taxing railroad property by specific tax on the capital paid in, whether represented by the shares or the debts of the corporation, was adopted in Michigan, by act of 1855, Comp. Stats, of Michigan of 1872, ch. 75, p. 744, for all railroad and certain other corporations with a similar exemption from other taxation. The constitution of Michigan recognizes and authorizes the distinction in taxation between the general mass of property to be subjected to a uniform rate of assessment and a specific tax, in lieu of all other, upon the property of banking, railroad, plank road, and other corporations. Thus, art. 14, sec. 1, prescribes the way in which specific taxes shall be applied ; sec. 10 authorizes the collection of specific taxes accruing under existing laws, and empowers the legislature to make provision for the collection of specific taxes from railroad and other corporations created after the adoption of the constitution; and sec. 11 declares that the legislature shall provide a uniform rate of taxation \\u201c except on property paying specific taxes.\\u201d And the legislature have provided such uniform rate \\u2014 Comp. Stats., title 8, p. 359 \\u2014 by enacting, ch. 21, sec. 1, that all property, real and personal, not expressly exempted, shall be subject to taxation ; sec. 14, that inventories be taken upon which the taxes are to be assessed; sec. 15, that the inventories shall set forth, under fourteen different heads, the various classes of personal property ; and sec. 17, that the shares of any corporation required to pay a specific tax shall not bo included in the inventory. It is clear, we submit, that this specific tax is regarded under the legislation in Michigan as a tax on the shares to the owner; and, at the rate of three foui'ths of one per cent, on all moneys invested in the railroad, regardless of depreciation\\nand fluctuations in the market value of the stock, is at least equal to the average rate of taxation on pronerty generally in this state from 1851 to 1863.\\nSuch a tax of one per cent, on deposits in savings banks, established in 1869 as the fixed policy of this state, even under the present burdensome taxation, is under our legislation regarded as a fair and full tax on the deposit as money at interest. In fixing the per cent, for such certain tax on the whole amount invested for a series of years, to make it as near as may be uniform with the rate at which the general mass of property is taxed, sound policy would seem to dictate that the probable depreciation and prospective fluctuations in the market value of the property should be considered. Notwithstanding the slight uncertainty which tlie corruption of the times, creeping here and there into the management of savings institutions, may have thrown upon the market value of savings banks deposits, it is surely safe to claim that they are more stable in character, subject to less of fluctuation and uncertainty, and of higher value, on the whole, in the market, in proportion to their par value, than railroad stocks; and that a certain fixed tax of three fourths of one per cent., for a series of years, on the entire amount expended in the construction of railroads, is a higher rate of taxation', in comparison witli an ad valorem tax on the same property, than is one per cent, on the amount deposited in savings banks in comparison with a tax assessed according to its market value. The settled policy of Michigan, for more than twenty years, has been to tax the money invested in railroad and certain other corporations at a fixed and definite rate. It must be assumed that three fourths of one per cent, for the twenty-four years that taxation at that rate upon the whole money expended in this railroad has been imposed upon it, is a fair and full equivalent for a tax upon its appraised value from year to year. The mere accident of the temporary increase of the rate of taxation, by reason of war expenses, ought not to be permitted to enter into the account.\\nThe settled policy of this state is to tax railroad and manufacturing shares, and deposits in savings banks, directly to the corporation, and in case of savings banks, by a specific tax at a fixed and certain rate, year after year, precisely as in the case of railroad shares in Michigan. Under our constitution, which requires all taxes to be proportionate upon all inhabitants and estates, such tax can be justified only upon the ground that the rate renders it a fair and full tax in proportion to that on the general mass of property. It is quite evident that our legislature did not deem the advanced rate at which the general mass must necessarily be assessed by reason of the temporary burdens left by the rebellion, as a proper element of computation in adjusting the fixed rate for deposits. Here, then, wre have, as in Michigan, two modes of taxation, one upon the mass of property at its valuation, the other upon certain property at a fixed and definite rate, which in our case, at one per cent, on deposits during the six years past, when property here has been excessively burdened by the necessity for extraordinary taxation, is nevertheless a fair equivalent for a tax ad valorem. On what ground can it bo said that the three fourths of one per cent., as the rate of taxation for railroad property in Michigan, is not, for the twenty-four years that this corporation has been so taxed, a fair and full equivalent for an ad valorem tax on its property for that period ?\\nWe contend that this tax so assessed in Michigan against the corporation is an assessment and tax \\u201c to the petitioner by the town where the corporation is located,\\u201d as those terms in the third clause of sec. 5, ch. 49, Gen. Stats., are to be understood. This clause is merely a reenactment of sec. 1, ch. 1419, of the laws of 1853, which was in force when the General Statutes -were adopted. In the original act the language is, \\u2014 \\u201cAll bank, railroad and other stock in corporations located out of the state shall be taxed when owned by citizens of the state which is not taxed to the owners by the towns or cities where the corporations are located.\\u201d In the Gen. Stats, more briefly, \\u2014 \\u201c Stock in corporations located out of the state owned by persons living in the state,\\u201d &c. The original act mentions specifically \\u201c bank, railroad, and other corporations,\\u201d such as manufacturing corporations, which, as well as banks, have a fixed location in some town or city. In its application to railroad corporations, the word town or city, as used in the statute, is to be construed \\u201c place incorporated, or whose inhabitants are required to pay any tax \\u201d \\u2014 Gen. Stats., ch. 1, sec. 5. So construed, it means the state of Michigan as the place whose inhabitants are required to pay a tax, and in which the subject-matter referred to \\u2014the Michigan Central Railroad \\u2014 is located. The same provision in respect to the construction to be given to the word \\u201c town \\u201d or \\u201c city \\u201d was contained in the Revised Statutes, and was in force in 1853, when the original act, ch. 1419, was passed. This third clause, in its application to this case, is to be- read as declaring in hcee verba, \\u2014 \\u201cStock in the' Michigan Central Railroad owned here, is to be taxed here if not taxed by the state of Michigan.\\u201d\\nSo, too, the tax is one \\u201c to the owner \\u201d and \\u201c on his stock,\\u201d as those terms in the third clause are to be understood. The phrase \\u201c taxed to the owner,\\u201d as here used, cannot mean a tax assessed in Michigan against the owner hero, in the sense of a tax to him as a citizen of that state, for which his body could be arrested or his chattels distrained. Such a tax would be a nullity, because he is not within the jurisdiction to be taxed there personally. It must therefore mean a tax, the burden of which is to rest upon him or his property, \\u2014 in effect, a charge upon his shares, and in that sense a tax to him and upon the shares. By sec. 7, ch. 49, Gen. Stats., it is declared that \\u201cno statute provision shall be so construed as to subject any stock to double taxation.\\u201d This provision was first enacted in the act of 1853, ch. 1419, witli special reference to the provision contained in the first section for taxing shares in foreign corporations owned hero, the second section providing that \\u201c neither this act \\u201d nor other laws of the state should be so construed. To tax the whole corporate property to the corporation, and then the whole of the shares to the owners, would clearly be a case of double taxation. On this ground, shares in railroad and manufacturing corporations and deposits in savings banks are exempted from taxation to the shareholders and depositors. Is it any the less a double taxation, except only as to the extent to which it is carried, when, the whole property being taxed to the corporation, ten shares representing a proportionate part of the property are taxed to the owner? We submit that there is no way of subjecting shares in a foreign corporation owned here to double taxation here, but by taxing the shares to the owner here, when its property is taxed where it is located ; or its shares taxed there and the corporation required to pay, or the tax there made a lien on the shares. In such case, the shares owned here would be subject to two burdens, the double taxation which sec. 7, cli. 49, forbids,\\u2014 first, the tax there on the corporate property or shares resting equally on resident and non-resident owners: and second, the tax on the shares owned here, from which all owners of shares elsewhere would be exempt. Smith v. JExeter, ol N. H. 556.\\nWadleigh Wallace, for the defendants.\\nThe General Statutes, in clear and unmistakable terms, require the taxation of \\u201c stock in corporations located out of the state, which is not assessed and taxed to the individuals owning the same, by the towns where the corporations are located.\\u201d Cli. 49, sec. 6, p. 116.\\nThe act of 1853, which is misquoted in the petitioner\\u2019s brief, was equally explicit, and required the taxation of all \\u201c stocks in corporations located out of this state and owned by persons living in this state, which is not by the towns and cities where such corporations were located, assessed, and taxed to the individuals owning the same \\u201d \\u2014Laws of 1853, cli. 1419, sec. 1; that the petitioner\\u2019s stock was not assessed and taxed to him in Michigan seems too clear for argument. To contend that it was, requires such ingenuity as proves a horse-chestnut to be a chestnut horse.\\nThe only tax levied upon the Michigan Central Railroad or its stock in the state of Michigan, was under the provisions of the Comp. Laws of 1872, vol. 1, cli. 22, which are as follows:\\n\\u201cSec. 5. Every company heretofore incorporated or hereafter to be incorporated within this state, for the purpose of constructing or using any railroad, canal, or turnpike therein, shall pay a yearly tax to the state of three fourths of one per cent, on the amount of capital stock of such company' paid in or secured to be paid, which tax-shall be paid into the state treasury by said corporations respectively on or before the first Monday in October, in the year one thousand eight hundred and forty-seven, and in each year thereafter. Sec. 6. Such tax shall be in lieu of all state, county, township, or other taxes in this state on the capital stock of said corporations, and on the railroad, canal, or turnpike constructed or used by any such corporation, and on the real and personal property in which said capital stock shall be invested, and which shall be used and occupied by any such company in accordance with the provisions of its charter and the laws of this state in the construction or use of such railroad, canal, or turnpike.\\u201d\\nIt is clear that the petitioner\\u2019s shares of stock were never taxed in Michigan at all, and there is no double taxation in this case within the moaning of the General Statutes. What is called a tax in Michigan is merely a fixed percentage upon the capital stock of all railroad, canal, and turnpike corporations, without any reference to the value of their shares or property. The petitioner, as a stockholder, has an interest in the accumulated earnings of tho corporation, the increase in the value of its property, and any gratuities it may have received. The tax in Michigan is not a tax upon his property as a stockholder. Nay, it is not a tax at all, but rather a sum paid in lieu of a tax. It does not vary with the value of the stock,, but has the character of a bonus paid by the corporation for its franchises and for the privilege of exemption from taxation. Savings Banh v. Nashua, 46 N. H. 899.\\nIn Van Allen v. Assessors, 3 Wall. 583, 584,'the court say, \\u2014 \\u201c But in addition to this view, the tax on the shares is not a tax on the capital of the bank. The corporation is the legal owner of all the property of the bank, real and personal, and, within the powers conferred upon it by the charter and for the purposes for which it was created, can deal with the corporate property as absolutely as a private individual can deal with his own. A striking exemplification may be seen in the case of the Queen v. Arnoud, 9 Adol. & Ellis, N. S., 806. The question related to the registry of a ship owned by a corporation. Lord Denman observed, \\u2014 4 It appears to me that the British corporation is, as such, the sole owner of the ship. The individual members of the corporation are no doubt interested, in one sense, in the property of the corporation, as they may derive individual benefits from its increase, or loss from its decrease; but in no legal sense are the individual members the stockholders.\\u2019 The interest of the shareholder entitles him to participate in the net profits earned by the bank in the employment of its capital, during the existence of its charter, in proportion to the number of its shares, and, upon its dissolution or termination, to his proportion of the property that may remain of tho corporation after the payment of its debts. This is a distinct, independent interest on property, held by the shareholder like any other property that may belong to him.\\u201d\\nSmith v. Exeter is not in point. In that case, all the property of the corporation paid a full tax in Illinois. Besides, the case was so slightly considered by the court that the decision- was based upon the Comp. Laws of 1853, instead of the act of June, 1853, under which the case arose.\\nIn this case, the petitioner\\u2019s claim of double taxation is absurd. No tax upon his interest in the corporation was levied in Michigan. Here he is only taxed for the actual value of liis shares, subject to the specific tax upon the corporation in Michigan and the tax here, and taking both into account in estimating such value. So far as the specific' tax tends to lessen his receipts and thereby diminish the value of his shares, he has received the full benefit of it in their appraisal. Both the letter and the spirit of our law require him to pay here ibis just and equal tax upon the actual value of his shares; and the statutes should not be wrested from their plain meaning, to enable him to escape the burdens of taxation upon the plea that the corporation has paid the mere pittance imposed upon it by the state of Michigan for the purpose of enticing capital there to escape taxation.\", \"word_count\": \"4290\", \"char_count\": \"23954\", \"text\": \"Sargent, C. J.\\nNo question is raised but that the-quotations from the statutes of the state of Michigan, by the counsel upon both sides, are correctly cited.\\nFrom these it appears that this stock is taxed in the state of Michigan, under the laws of that state, paying a specific tax of three fourths of one per cent, upon all its capital stock paid in, including two millions of dollars purchase-money paid to the state, and also upon all loans made to said company for the purpose of constructing its road, or purchasing, constructing, chartering, or hiring steamboats ; and it is provided that this specific tax shall be in full for all taxes, charges, or exactions, by virtue of any law of the state.\\nThis stock is in that way once taxed in Michigan. If it was owned in the state of Michigan, it clearly could not be taxed again to such stockholder in that state. The rate of taxation being three fourths of one per cent, on the whole amount invested in the railroad, whether paid to the state, or for construction, or for steamboats, &c., whether represented by capital stock, or bonds, or debts of any kind, regardless, of fluctuations and of depreciations in the market value of the stock, would probably be fully equal to the average rate of taxation in that state, or in our own, from the year 1840 to 1863.\\nBut it is claimed that sec. 5, par. 3, ch. 49; General Statutes, in terms, requires that this stock be taxed in this state to the individuals owning the same, because the stock has not been taxed to them \\\" by the towns where such corporations are located.\\\" But in this case the specific tax is, by special provision of the statute of Michigan, to be \\\" in lieu of all state, county, township, or other taxes in this state, on the capital stock of said corporations, and on the railroad, canal, or turnpike, constructed or used by any such corporation, and on the real and personal property in which said capital stock shall be invested,\\\" &c.\\nThis corporation pays a tax on all its capital expended, whether represented by the shares of stock, or the debts of the corporation, and this tax is to be in lieu of all other taxation. If this plaintiff owned bank stock in the state of Michigan, and the stock was all taxed in that state in the town where said bank is located, and, though taxed to the individual stockholders, the bank should pay all such taxes before declaring dividends, then he should not be taxed again upon the same stock in this state. But a railroad is not generally located in any \\u2022one town, for the purposes of taxation, as a bank is, but is taxed by the state, as in this case; and when that state tax is declared to be in lieu of all other taxes, whether imposed by the towns, or in any other way, it is thus made a substitute for such town taxes, which would excuse the stockholder in that state from any town tax on such stock.\\nAnd the question is, whether this substitute for the town taxes comes within the spirit of our statute, and answers the requirement of our law. It is hold, substantially, that it does so, in Smith v. Exeter, 37 N. H. 556. But if there were any doubt upon that point, sec. 7 of the same chapter would seem to settle the matter, which provides that \\\" no statute provision shall be so construed as to subject any stock to double taxation \\u2014 and see Savings Bank v. Nashua, 46 N. H. 389, and Savings Bank v. Portsmouth, 52 N. H. 17. If there could be any doubt as to the construction of sec. 5, after the decision in Smith v. Exeter, supra, it would seem to be removed by the provision of sec. 7, ch. 49, General Statutes.\\nBut it is suggested that this three fourths of one per cent, is not to bo considered as a tax, but rather a bonus, or royalty, paid to the state for the privilege of constructing and operating a railroad in that state. If this were so, and in consequence of this bonus paid to the state it was the real understanding that the property was to be exempted from all taxation in that state, then the stock should be taxed here. But if the property is really taxed there, and all of it is thus taxed, then it should not be taxed again. By the charter of this corporation, granted in 1846, it was required to pay a certain \\\" specific tax to the state, and in consideration thereof the property and effects of the company were to be exempt from all and any tax by virtue of any law of this state.\\\" This was a provision that the property, by paying one tax, should be exempt from all other taxes. But by the act of 1855 (sec Compiled Statutes of 1872), it was provided that said specific tax to the state \\\"shall be in lieu of all \\\" other taxes, or a substitute for all other taxes on the capital stock of said corporation, and upon the railroad constructed or used by the corporation.\\nBut we have already seen that this tax paid to the state upon all the capital expended in the construction or purchase of the roads, whether represented by the capital stock, or bonds, or other indebtedness of the company, amounts to a tax as high as the average rate of taxation upon other property in that state or this, from 1840 up to the time of the war; that it was in substance and in fact a tax, and not a bonus or royalty, and was intended to be, so far as we can see, a fair assessment upon the property of the corporation, including its capital stock. This being so, we cannot doubt that this tax should be abated, upon the ground that to tax it again here in this way would be a double taxation of the property.\\nTax abated.\"}" \ No newline at end of file diff --git a/nh/528544.json b/nh/528544.json new file mode 100644 index 0000000000000000000000000000000000000000..eaa799020ddac913c928571b2090b48f98526b20 --- /dev/null +++ b/nh/528544.json @@ -0,0 +1 @@ +"{\"id\": \"528544\", \"name\": \"Cohen's Case\", \"name_abbreviation\": \"Cohen's Case\", \"decision_date\": \"1998-12-03\", \"docket_number\": \"No. LD-97-007\", \"first_page\": 169, \"last_page\": \"172\", \"citations\": \"143 N.H. 169\", \"volume\": \"143\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Supreme Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-10T21:19:27.253677+00:00\", \"provenance\": \"CAP\", \"judges\": \"All concurred.\", \"parties\": \"Cohen\\u2019s Case\", \"head_matter\": \"Original\\nNo. LD-97-007\\nCohen\\u2019s Case\\nDecember 3, 1998\\nAbramson, Reis, Brown & Dugan, of Manchester (Kenneth C. Brown and Jared R. Green on the brief, and Mr. Brown orally), for the committee on professional conduct.\\nGerald M. Cohen, of Boston, Massachusetts, by brief and orally, pro se.\", \"word_count\": \"1183\", \"char_count\": \"7354\", \"text\": \"PER CURIAM.\\nThe Supreme Court Committee on Professional Conduct (committee) filed a petition with this court requesting that the respondent, Gerald M. Cohen, be suspended from the practice of law for a period of one year. We appointed a Judicial Referee (Dunn, J.) to conduct a hearing on the committee's petition. The referee found, by clear and convincing evidence, that the respondent violated New Hampshire Rules of Professional Conduct (Rules) 1.15(a)(1), 8.4(a), and 8.4(c). We agree that the respondent committed several violations of Rule 8.4(c), find that those violations warrant disbarment, and therefore need not address the other violations.\\nThe referee found that the respondent was retained by James Oriani to represent him in connection with his divorce from Virginia Albanese (formerly Virginia Oriani). During the divorce proceed ings, the parties agreed to cooperate toward a joint filing of bankruptcy, and Ms. Albanese agreed to have the respondent represent both her and Mr. Oriani for that purpose. In December 1992, the parties met with the respondent to discuss the proposed bankruptcy. Mr. Oriani paid the respondent a retainer of $910.00. The respondent was aware that Ms. Albanese planned to reimburse Mr. Oriani for one-half of that amount. The parties completed in handwritten form the necessary schedules for a Chapter 7 bankruptcy filing and signed a blank signature form and blank acknowledgment form. Ms. Albanese expected that the bankruptcy petition would be filed shortly after the meeting.\\nOn March 1,1993, the superior court approved the parties' divorce decree. Later that month, the respondent prepared typed bankruptcy forms and handwrote the date \\\"March 16, 1993\\\" next to the parties' signatures on the forms. The respondent did not, however, file the bankruptcy petition.\\nOn or about March 24, 1993, Ms. Albanese telephoned the respondent. During the conversation, she inquired about the bankruptcy petition. The respondent stated that the petition had been filed.\\nOn May 27, 1993, Ms. Albanese met with another attorney and learned both that she probably did not need to file for bankruptcy and that no petition had yet been filed with the bankruptcy court. Ms. Albanese thereafter twice called the respondent's office. As she was unable to speak with the respondent, she left messages with the respondent's secretary indicating that she did not want the bankruptcy petition to be filed and that she wanted her money back.\\nIn early June, Ms. Albanese spoke with the respondent and told him that she did not want the petition filed and that she wanted her money back. The respondent indicated that it was too late for such a request.\\nThereafter, on June 15, 1993, the respondent attempted to file a joint bankruptcy petition with the United States Bankruptcy Court for the District of New Hampshire. The filing was rejected because the signature page was not the correct form. The respondent obtained the correct form, and on June 16 the respondent signed the names \\\"James Oriani\\\" and \\\"Virginia Oriani\\\" to the form in a manner that tried to emulate their actual signatures. This was done without the parties' knowledge or consent and despite Ms. Albanese's express instruction not to file the petition. The respondent mailed the form to the bankruptcy court, and the bankruptcy petition was entered on the court docket on June 25, 1993.\\nIn July 1993, Ms. Albanese received a notice from the bankruptcy court of a creditors' meeting in her case. She obtained a copy of her file from the court and noticed that somebody else had signed her name and her ex-husband's name on the petition. She contacted the United States Trustee's Office and informed an Assistant United States Trustee that the bankruptcy petition had been filed against her instructions and that the signature was not hers.\\nThe Assistant United States Trustee filed a complaint against the respondent with the committee. In the course of the disciplinary proceedings, in answer to an interrogatory question as to whether he had ever been sued for any reason (other than two suits specifically mentioned in the question), the respondent answered, \\\"No.\\\" In fact, the respondent had been a party to at least eleven other law suits.\\nThe referee concluded that the respondent committed several violations of Rule 8.4(c), which provides that it is professional misconduct for a lawyer to \\\"engage in conduct involving dishonesty, fraud, deceit or misrepresentation.\\\" The referee found, inter alia, that the respondent violated this rule by falsely stating to Ms. Albanese that he had filed her bankruptcy petition when he had not done so, by signing her name to the bankruptcy petition without her consent, by filing the bankruptcy petition after Ms. Albanese instructed him not to do so, and by falsely answering bar counsel's interrogatory.\\nWhen we review the referee's factual findings, \\\"our only function is to determine whether a reasonable person could have reached the same decision as the referee on the basis of the evidence before him.\\\" Basbanes' Case, 141 N.H. 1, 4, 676 A.2d 93, 95 (1996) (quotation omitted). We find ample evidence in the record to support the factual findings set forth above. Although the respondent argues that his testimony conflicted with that of other witnesses relied upon by the referee, \\\"any conflicts as might be found in the testimony, questions about the credibility of witnesses, and the weight to be given to testimony are questions to be resolved by the referee.\\\" Budnitz' Case, 139 N.H. 489, 491, 658 A.2d 1197, 1198 (1995) (quotation omitted).\\nAlthough our role in reviewing the referee's factual findings is limited, we retain the ultimate authority to determine the appropriate sanction for violation of the Rules. See Wood's Case, 137 N.H. 698, 701, 634 A.2d 1340, 1342 (1993); Sup. Ct. R. 37(13)(f). \\\"The purpose of this court's disciplinary power is to protect the public, maintain public confidence in the bar, preserve the integrity of the legal profession, and prevent similar conduct in the future.\\\" Doherty's Case, 142 N.H. 446, 450, 703 A.2d 261, 264 (1997) (quotation omitted).\\n\\\"The privilege of practicing law does not come without the concomitant responsibility of truth, candor and honesty. . . . [Because no single transgression reflects more negatively on the legal profession than a lie, attorney misconduct involving dishonesty . . . justifies disbarment.\\\" Nardi's Case, 142 N.H. 602, 606, 705 A.2d 1199, 1200 (1998) (quotations and brackets omitted). In light of the respondent's repeated dishonest conduct, which included his attempt to emulate the handwriting of Mr. Oriani and Ms. Albanese when he signed their names to the bankruptcy petition without their consent, we conclude that the appropriate sanction in this case is disbarment. See id.; Basbanes' Case, 141 N.H. at 8, 676 A.2d at 97.\\nAccordingly, the respondent is hereby disbarred and is ordered to reimburse the committee for its expenses in investigating and prosecuting this case. See Sup. Ct. R. 37(16).\\nSo ordered.\\nAll concurred.\"}" \ No newline at end of file diff --git a/nh/536783.json b/nh/536783.json new file mode 100644 index 0000000000000000000000000000000000000000..22af73293c22a940253ca439b71fb2b15452ffbb --- /dev/null +++ b/nh/536783.json @@ -0,0 +1 @@ +"{\"id\": \"536783\", \"name\": \"Bartlett & a. v. Woodworth-Mason Co. & Tr.\", \"name_abbreviation\": \"Bartlett v. Woodworth-Mason Co.\", \"decision_date\": \"1898-06\", \"docket_number\": \"\", \"first_page\": 316, \"last_page\": \"317\", \"citations\": \"69 N.H. 316\", \"volume\": \"69\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Supreme Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-10T20:15:01.943804+00:00\", \"provenance\": \"CAP\", \"judges\": \"Clark, C. J., did not sit: the others concurred.\", \"parties\": \"Bartlett & a. v. Woodworth-Mason Co. & Tr.\", \"head_matter\": \"Carroll,\\nJune, 1898.\\nBartlett & a. v. Woodworth-Mason Co. & Tr.\\nAn agreement among creditors and with, their debtor is a sufficient consideration for a promise to accept a percentage.\\nThe delivery of a debtor\\u2019s promissory note for a percentage of his indebtedness, upon an agreement with creditors that their claims should be so paid, extinguishes the original debt.\\nIn such case, the debtor\\u2019s failure to pay his note when due, in accordance with his representation at the time it was given, does not invalidate the agreement, unless the debtor had a concealed intention not to pay the note at the time the representation was made.\\nAssumpsit. Pacts agreed. In 1894, the defendants, being in failing circumstances, offered in settlement eighty per cent of their indebtedness, payable in notes upon two, four, six, and eight months\\u2019 time, and represented that they would be able to pay the notes as they became due. All their creditors agreed to this arrangement, and, as a part of the settlement, some of them having attachments upon the debtors\\u2019 property released the same. The defendants did not pay the first notes when due, and the plaintiffs seek to recover their original debt.\\nFrank F. Fernald, for the plaintiffs.\\nFelker Gunnison, for the defendants.\", \"word_count\": \"575\", \"char_count\": \"3279\", \"text\": \"Peaslee, J.\\nThe agreement among the creditors and with the debtors was a sufficient consideration for the promise to take a percentage. Browne v. Stackpole, 9 N. H. 478.\\nThe plaintiffs claim that the acceptance of the offer was conditional,\\u2014 that it was to be binding only in the event that the composition notes were paid when due; but the case finds that they agreed to take eighty per cent, payable in notes. In this state a note is not payment when there is no agreement that it shall he. Gilman v. Stevens, 63 N. H. 342; Moore v. Fitz, 59 N. H. 572, and cases cited. But this rule does not control the agreement of the parties. Rix v. Insurance Co., 20 N. H. 198, 203. The agreement here was that the percentage was- payable in notes. A debt is discharged by the delivery to the creditor of that in which it is payable, or capable of being paid, or justly entitled to be paid. Johnson v. Dooley, 65 Ark. 71. When the new notes were delivered to the creditors in accordance with the terms of the agreement, the original debt was paid.\\nOne inducement to the new contract was the defendants' representation that they would be able to pay the new notes when due. This was not a condition of, but only an inducement to, the new contract. Unless the defendants, at the time the representation was made, had a concealed intention not to pay the notes, the contract cannot he avoided because of the representation. It is not the future result that they do not pay, but their present fraudulent intent not to pay, that renders the contract voidable at the option of the party imposed upon. Stewart v. Emerson, 52 N. H. 301. The case discloses no evidence of such fraudulent purpose, and the action upon the original debt cannot be maintained.\\nOne of the new notes given to the plaintiffs was overdue at the time this suit was brought. If it was then held by them, they may, by filing an amendment at the trial term, have judgment for the amount due thereon.\\nCase discharged..\\nClark, C. J., did not sit: the others concurred.\"}" \ No newline at end of file diff --git a/nh/536853.json b/nh/536853.json new file mode 100644 index 0000000000000000000000000000000000000000..ccf46ee1abe66c88ba3ee9ab6592f87c8f32fd78 --- /dev/null +++ b/nh/536853.json @@ -0,0 +1 @@ +"{\"id\": \"536853\", \"name\": \"Smith v. Phillips & a.\", \"name_abbreviation\": \"Smith v. Phillips\", \"decision_date\": \"1898-12\", \"docket_number\": \"\", \"first_page\": 470, \"last_page\": \"471\", \"citations\": \"69 N.H. 470\", \"volume\": \"69\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Supreme Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-10T20:15:01.943804+00:00\", \"provenance\": \"CAP\", \"judges\": \"All concurred.\", \"parties\": \"Smith v. Phillips & a.\", \"head_matter\": \"Merrimack,\\nDec., 1898.\\nSmith v. Phillips & a.\\nAn action at law cannot be maintained upon a parol agreement to lease land for a term of years.\\nPart performance of such an agreement does not take the case out of the statute of frauds, so as to authorize the recovery of damages in an action at law for a breach of the oral contract.\\nAssumpsit. Pacts found by a referee. July 1, 1893, one Bradley executed to the defendants a lease of a tract of land in Concord for the term of five years, with a right of renewal at the expiration of the term. Upon a part of this tract a building or mill for polishing granite had been erected and was owned by the State Capital Polishing Works. August 10, 1893, the defendants agreed verbally with the plaintiff- that if he should purchase the polishing mill of the owners they would execute to him a lease of the land occupied by the mill for as long a term as Bradley had leased to them. The plaintiff, relying upon this agreement, bought the mill and went into possession and operation of it. Such occupation, so far as it is a question of fact, is found to be a partial performance of the oral contract. November 23, 1893, the plaintiff requested the defendants to execute such a lease as had been agreed upon. This they refused. In consequence of the defendants\\u2019 refusal to give him such a lease as had been agreed upon, the plaintiff, after notice to the defendants, removed the mill, March 23,1896. The removal was rendered necessary by the defendants\\u2019 refusal to lease. The referee finds for the plaintiff upon other items the sum of $9.79, and submits to the court the question whether damages for breach of the oral contract to lease can be recovered.\\nLeach Stevens, for the plaintiff.\\nAlb\\u00edn, Martin $ Howe, for the defendants.\", \"word_count\": \"687\", \"char_count\": \"3654\", \"text\": \"Parsons, J.\\nA parol agreement to lease land for a term of years is a contract to convey an interest in lands within the statute of frauds (P. S., c. 187, s. 12; Ib., c. 215, s. 1; Webster v. Blodgett, 59 N. H. 120), and no action at law can be maintained upon it. P. 8., c. 215, s. 1; Lane v. Shackford, 5 N. H. 130, 133; Ayer v. Hawkes, 11 N. H. 148, 150; Ham v. Goodrich, 33 N. H. 32, 35; S. C., 37 N. H. 185; Luey v. Bundy, 9 N. H. 298; Seavey v. Drake, 62 N. H. 393, 394. Part performance of such an agreement does not take the case out of the statute so as to authorize the recovery of damages in an action at law for a breach of the oral contract. Webster v. Blodgett, Lane v. Shackford, Ayer v. Hawkes, supra; Emery v. Smith, 46 N. H. 151, 155; Kidder v. Hunt, 1 Pick. 328; Thompson v. Gould, 20 Pick. 134, 138; Adams v. Townshend, 1 Met. 483; Hibbard v. Whitney, 13 Vt. 21, 24; Hawley v. Moody, 24 Vt. 603, 605; Buck v. Pickwell, 27 Vt. 157, 166, 167; Abbott v. Draper, 4 Denio 51, 53; Eaton v. Whitaker, 18 Conn. 222, 231; Chit. Cont. (10th Am. ed.) 329; 2 Par. Cont. (4th ed.) *340; Bro. St. Pr. (5th ed.), s. 451. It is not necessary to inquire whether in equity the plaintiff might have had a decree for a specific performance of the oral contract to lease. He has made no claim to such relief, and by removing the building and yielding his possession has abandoned such equitable title as he had as lessee and put himself into a position where such a decree would afford him no relief. No claim is made except upon the contract, and the case discloses no grounds upon which any action can be maintained. Cocheco Aqueduct Association v. Railroad, 59 N. H. 312; Lane v. Shackford, Ham v. Goodrich, Emery v. Smith, supra; Crawford v. Parsons, 18 N. H. 293, 294; Miller v. Tobie, 41 N. H. 84. The plaintiff is entitled to judgment for $9.79.\\nCase discharged.\\nAll concurred.\"}" \ No newline at end of file diff --git a/nh/6754637.json b/nh/6754637.json new file mode 100644 index 0000000000000000000000000000000000000000..ca2136d0b40e7ce0d09e11ca5097d6f4fe93eb98 --- /dev/null +++ b/nh/6754637.json @@ -0,0 +1 @@ +"{\"id\": \"6754637\", \"name\": \"Giddings vs. Coleman & Trustee\", \"name_abbreviation\": \"Giddings v. Coleman\", \"decision_date\": \"1841-12\", \"docket_number\": \"\", \"first_page\": 153, \"last_page\": \"158\", \"citations\": \"12 N.H. 153\", \"volume\": \"12\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Superior Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-11T00:10:54.152457+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Giddings vs. Coleman & Trustee.\", \"head_matter\": \"Giddings vs. Coleman & Trustee.\\nWhere a trustee, in his disclosure, admits himself to be indebted to the principal debtor on account, he must be charged, unless he shows himself clearly discharged, upon evidence of as high a nature as that furnished by the disclosure of the trustee of facts known to himself.\\nAccordingly, where, in the disclosure, the indebtedness of the trustee to the principal debtor on account, was admitted, and it was also stated in the disclosure that the agent of certain persons, claiming to he the assignees of the principal debtor, had informed the trustee of the fact of the assignment of a portion of said account to them, and had presented to him instruments of assignment, in writing, purporting to be executed by the principal debtor, to said assignees; hut it appeared that the trustee had no other knowledge of the fact of Ac assignment than what was derived from the statement, of the agent, and the exhibition of the instruments of assignment; it was held, that the trustee was, nevertheless, chargeable, inasmuch as the evidence furnished by the disclosure, to show the fact of the validity of the assignment, was mere hearsay evidence, and, therefore, not competent for that purpose.\\nIt is the duty of the assignees of choses in action, who woidd protect their interest in the claims assigned, in case the debtor is sued as the trustee of the assignor, and is not possessed of the requisite knowledge of the facts essential to his discharge, upon proper notice, to furnish to the trustee competent evidence of the assignment of the claims; otherwise the trustee will be charged, and the claim of the assignees will be regarded as waived or abandoned.\\nThe affidavits of disinterested persons, appended to, and made parcel of the disclosure of a trustee, stating facts within the knowledge of those making the affidavits, furnish competent evidence to be considered by the court, in connection with the disclosure, upon the question of the liability of the trustee.\\nForeign attachment. The trustee disclosed that he was indebted to Coleman, the principal debtor, on account, in the sum of $50.69, on the 7th day of July, 1840. He further stated in his disclosure, that Coleman had two day-books, on which the items were charged constituting said account, a portion of them being entered upon one of said books, and a portion upon the other ; and that he also had a ledger, upon which a portion of said account was posted, but that another portion of it, to wit, the sum of $23.71, being the entire sum which was entered upon one of said day-books, was not posted upon the ledger at the time of the execution of the assignments hereinafter mentioned, to wit, July 7th, 1840.\\nFrom the disclosure it appeared, also, that on the 2d day of August, 1840, the agent of William Jones and son presented to the trustee what purported to be two assignments \\u2022 the one written upon the ledger and the other upon one of the day-books, and each bearing date July 7, 1840, and purporting to have been executed by Coleman to said Jones and son, for the consideration of $1000, as stated in each assignment, and to assign and transfer the accounts, \\u201cmentioned and stated\\u201d in said two last named books, as well as the books themselves, to Jones and son. It further appeared, that, although the assignments were absolute upon the face of them, yet in point of fact they were made, as the trustee was informed, for the purpose of securing a debt due from Coleman to Jones and son.\\nThe trustee was not possessed of any knowledge concerning the assignments, excepting what was derived from statements made to him, and from the exhibition made to him of what purported to be instruments of assignment; nor did he know the fact of the existence of any debt due from Coleman to Jones and son, excepting by information derived from the mere fact of the statement of the agent of Jones and son.\\nThe trustee was first informed of said assignment on the same day of the service of the writ in this-case, but prior to the service, by one who does not appear to have been the agent of the assignees.\\nNo written evidence, however, was exhibited to him, of the fact of the assignments prior to the service of the writ.\\nStickney, for the plaintiff.\\nSullivan, Bell, Sf Tuck, for the trustee.\", \"word_count\": \"1904\", \"char_count\": \"10911\", \"text\": \"Woods, J.\\nUpon the state of facts disclosed by him, the trustee is most clearly chargeable for the sum of $23.71, which, not constituting any part of the accounts purporting to have been assigned to Jones and son, was, nevertheless, a sum fairly due from the trustee to Coleman, at the time of the service of the writ in this action.\\nIn no point of view can the supposed assignment be regarded as embracing and transferring the aforesaid sum of $23.71. The items of account, which, in the aggregate, made up that sum, were not entered upon either of the books. which, together with their contents, purported to have been assigned to Jones and son ; and the assignments upon the day book and ledger were of \\\" the within day-book,\\\" and of \\\" the within ledger, and the accounts within stated and mentioned,\\\" and were in terms limited to those accounts thus \\\" stated and mentioned,\\\" and clearly did not transfer the other items of account then existing in favor of Coleman against the trustee, but which were neither \\\"stated\\\" nor \\\"mentioned\\\" in the day-book or the ledger, upon which the assignments were written.\\nAnd the trustee is also chargeable, in the opinion of the court, for the other portions of the account of Coleman against him, and which purported to have been assigned to Jones and son. The trustee was indebted to Coleman, according to the charges contained in all his books of account, in the entire sum of 050.60; the accuracy and correctness of which are admitted by the trustee ; and he must be charged for that sum, unless the disclosure clearly and satisfactorily shows a valid assignment of some portion of the account before the service of the writ in this action. This is a case in which it is admitted by the trustee that the credits of the principal debtor have come to his possession ; and in such case the trustee is to be charged to the extent of such credits, unless by his disclosure, or upon other sufficient evidence, he clearly discharges himself. Wright vs. Foord, 5 N. H. Rep. 178.\\nAnd, in the opinion of the court, a trustee, under such circumstances, is to be charged, unless he discharges himself by a statement of facts known to himself, or by testimony derived from other sources of as high a character as that which is furnished by the affidavit of the trustee himself of facts of which he has personal knowledge. This is a controversy, in effect, between a creditor of Coleman, seeking to recover a just debt by process of law, and one claiming to be a creditor and a bona fide assignee of the debt, which is the subject of this controversy. In order, therefore, to maintain his claim against that of the plaintiffs, the assignee was bound not only to prove his claim to have been first in time, but, also, to have been well founded in legal right. It should have been shown that the assignments were not merely formal, but bona fide, and upon sufficient consideration.\\nIt did not, however, appear by the disclosure, or upon any evidence of the character required, that Coleman was indebted in any manner to Jones and son, and consequently it did not appear that the assignments were made upon a sufficient consideration, or in fact upon any consideration whatever. The only evidence furnished by the disclosure was, that the trustee was informed by the agent of Jones and son that the assignments had been made to secure a debt due from Coleman to Jones and son, and that the instruments of assignment were exhibited to him. It did not appear even that the agent himself had any knowledge of the actual existence or of the bona fide character of the alleged indebtedness of Coleman to Jones and son. The truth of the fact of any such indebtedness was not evidenced by the disclosure of the trustee, nor by the affidavit of any one else claiming any knowledge of such fact. The fact of the assignments, being the fact upon which the discharge of the trustee was claimed, and upon which the assignees relied to protect the interest claimed to have been assigned to them, their bona fide character, as well as the soundness of the consideration upon which they were claimed to rest, should have been evidenced by proofs of as high a nature, and of legal force as great as is furnished by the disclosure of a trustee, in relation to facts of which he assumes to have personal knowledge. That character of proof, however, was not furnished in this case. Indeed, nothing having the character of evidence at all is furnished, of the facts essential to be made out, in order to establish the validity of the assignments. It was, at most, mere hearsay evidence, depending for its truth upon the veracity of the declarant in relation to specific facts, which in their nature are susceptible of being proved by witnesses who can speak from their own knowledge; and such evidence is uniformly held incompetent. Greenl. Ev. 112.\\nIf the assignees of claims like those under consideration, would protect the. interest claimed by them, it is their duty, on proper notice, to furnish the requisite evidence to the trustee, to sustain the claim; otherwise the trustee, not possessing the requisite knowledge of the facts essential to his discharge, will be charged, and the claim of the assignees will be regarded as waived, or abandoned.\\nThe affidavits of persons knowing the facts testified to by them, and having no interest to misrepresent, appended by the trustee to his disclosure, and made parcel of it, seem to us proper to be considered as furnishing evidence of the facts contained in them, of as high a character as is furnished by the disclosure of the trustee of the facts which the trustee assumes to know, and, therefore, proper to be considered by the court as such, in determining the question of the liability of the trustee. A proper disclosure is but the affidavit of the trustee, who ordinarily has no interest to misrepresent. No such evidence, however, was furnished in this case, of the facts alleged to exist, which, if proved, would have discharged the trustee.\\nThis view of the case brings us to the result, that the trustee is chargeable for the whole amount in which he stood indebted to Coleman on account, as stated in the disclosure.\\nThe question raised at the argument by the counsel for the plaintiff, as to the validity of the assignments, upon the ground of alleged legal fraud, becomes immaterial upon the view taken of the other questions raised upon the case. And if it were otherwise, it could not prevail, for the reasons contained in the opinion of the court, delivered by the Chief Justice, in the case of Boardman vs. Cushings at this term, ante 105.\"}" \ No newline at end of file diff --git a/nh/6754883.json b/nh/6754883.json new file mode 100644 index 0000000000000000000000000000000000000000..67cf4011c88485b4d3f37a623a43f45b40c7f321 --- /dev/null +++ b/nh/6754883.json @@ -0,0 +1 @@ +"{\"id\": \"6754883\", \"name\": \"Tifft vs. Walker\", \"name_abbreviation\": \"Tifft v. Walker\", \"decision_date\": \"1839-07\", \"docket_number\": \"\", \"first_page\": 150, \"last_page\": \"155\", \"citations\": \"10 N.H. 150\", \"volume\": \"10\", \"reporter\": \"New Hampshire Reports\", \"court\": \"New Hampshire Superior Court\", \"jurisdiction\": \"New Hampshire\", \"last_updated\": \"2021-08-10T19:11:17.192194+00:00\", \"provenance\": \"CAP\", \"judges\": \"\", \"parties\": \"Tifft vs. Walker.\", \"head_matter\": \"Tifft vs. Walker.\\nSince the statute of July 3, 1829, providing that no title or estate in fee simple, &c., shall be defeated or encumbered, by any agreement whatever, unless such agreement or writing of defeasance shall be inserted in the conveyance, and become part thereof, &c., an absolute deed with a bond to re-convey, of the same date and executed at the same time, will not constitute a mortgage.\\nWhere a party loaned a sum of money, taking an absolute deed of certain real estate as security, and giving at the same time a bond to re-convey on the payment of the amount, with interest, within a certain time; the parties intending thereby not to make a mortgage \\u2014 Held that the transaction, under the statute of 1829, did not constitute a mortgage \\u2014 that the agreement operated as a secret trust that the grantee should hold the land, subject to a right in the grantor to redeem and have a re-conveyance \\u2014 and that the deed was therefore void as against the creditors of the grantor.\\nA levy of an execution by which a part of a house is taken and set off, is not void, if there is no fraud or oppression.\\nWRIT of entry, to recover a farm in Campton.\\nThe defendant pleaded non tenure and disclaimed as to all the premises demanded, except one acre and one hundred and thirty square rods, described thus: \\u201cbeginning at the south-west corner of the tract set off on execution, Peter Walker vs. John H. Tifft ; thence south, three degrees west, eight rods, to a stake and stones; thence east, three degrees south, to the house, and through the centre of the chimney to the centre of the chamber stairs; thence south, three degrees west, down the centre of said stairs, and through the centre of the front door, seven rods and six links, to a stake and stones ; thence east, three degrees south, sixteen rods, to Samuel E. Johnson\\u2019s land ; thence north, three degrees east, fourteen rods and fifteen links, to a stake and stones, to said Peter Walker\\u2019s tract; thence west, three degrees north, twenty-two rods, to the first bound.\\u201d\\nAs to the quantity thus described, he pleaded mil disseizin; on which issue was joined.\\nOn the trial, it was admitted that the title to the demanded premises was originally in John H. Tifft, the brother of the plaintiff, Laban Tifft, who offered in evidence the deed of John, to himself, dated October 30, 1834, and recorded November 15, 1834. The defendant, Samuel H. Walker, then offered in evidence copies of record, showing an attachment of the demanded premises, on a suit in his favor against John H. Tifft, dated January 3, 1835, on which judgment was rendered November term, 1835, and the execution levied upon, the land described in the plea. The defendant then offered admissions of the plaintiff, made and sworn to in a disclosure taken in a trustee process against him, November term, 1835, in which he stated that some time previous to the 20th day of October, 1834, he had loaned his brother, John H. Tifft, money at different times, for which he received his notes. That on the 17th or 18th of the same October, John wished him to loan him some more money \\u2014 that he declined doing it without security, and John proposed to give it by a mortgage on his farm, but he preferred an absolute deed ; and it was at length agreed that he should let John have, in addition to what he had already loaned him, enough to make five hundred dollars, take a deed of his farm, and give him an obligation to re-convey the farm upon re-payment of the money, and interest, in the space of two or three years, he could not say which \\u2014 that he paid John, at that time, nearly three hundred dollars, in money, which, with the amount due on the notes, made just five hundred dollars \\u2014 that he had not seen the obligation he gave John, to re-convey, since it was given, and could not say how long time it gave to repay the money; but it was expected that John would pay him when he sold the drove of cattle, for the purchase of which he wanted the money \\u2014 that he had not seen John since that time \\u2014 that John requested him to let the deed lie until he came back, and if he then paid the money it would not be necessary to record it, and, he thought, requested it kept from the records lest it should alarm his creditors.\\nThe defendant contended on this evidence that there was a secret trust, existing at the time of the conveyance from John H. Tifft to the plaintiff, which in law, if not in fact, was fraudulent, and rendered the conveyance invalid as against creditors.\\nThe plaintiff objected to the levy under which the defendant claims, that it cut up and injured the premises, &c., and was in other respects defective.\\nA verdict was taken for the plaintiff, by consent, to be sustained, or set aside and a verdict entered for the defendant, according to the opinion of this court upon the foregoing case.\\nBell, if Bellows, for the plaintiff.\\nBartlett, if N. P. Rogers, for the defendant.\", \"word_count\": \"2177\", \"char_count\": \"12100\", \"text\": \"Parker, C. J.\\nIt appears in this case, from the admissions of the plaintiff, made in a disclosure taken in another suit, that previous to the 20th of October, 1834, he held several notes against his brother, John H. TifFt, and that John had requested the plaintiff to loan him more money, which the plaintiff declined doing without security; whereupon John proposed to give him a mortgage of his farm \\u2014 that the plaintiff preferred an absolute deed \\u2014 and that it was agreed that the plaintiff should let John have money enough to make up the sum of five hundred dollars, take a deed of his farm, and give an obligation to re-convey the farm, upon re-payment of the money, and interest, in the space of either two or three years. The plaintiff says he paid his brother, at that time, nearly $300, in money ; but he added that he could not say how long the obligation gave his brother to repay the money, but it was expected he would pay him when he sold the drove of cattle, for the purchase of which he wanted the money.\\nIt is evident from this, that the parties did not intend to make a mortgage, and fail to do so by some mistake respecting the mode of constructing the conveyance. The plaintiff declined to take a mortgage, and preferred an absolute deed, and must have understood that the bond he gave was not to operate so as to constitute the transaction a mortgage.\\nThe statute of July 3, 1829, provides that no title or es tate in fee simple, in tail,