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without leaving any children, to wit, that the property shall descend, as the law provides, to his blood; and, finally, goes on to provide that, in case either or both shall have children, the children shall take what is given to their parents,-which last provision, as we have seen, would be inconsistent with the provision under consideration unless the child contemplated as dying should have died childless. Our opinion, therefore, is that, on the death of his mother, George B. Calder, 2d, became entitled in fee to one-half of the estate, the income of which she was entitled to during her life. We accordingly answer to the first question that the net income of the estate is to be paid, one-half to said Mary R. Peckham, and one-half to the said George B. Calder, 2d. The bill does not show that the deceased, Isabella F. Calder, owed any debts at her decease. It states that no administration has been granted on her es

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NOTES-SUBSEQUENT INDORSER-RES JUDICATA. 1. In the absence of any agreement affecting the liability of successive indorsers, their liability is determined by the order in which their names appear on the note.

2. A judgment in favor of the holder of a note is not conclusive of the rights between the various indorsers of the note.

Action by William N. Crompton against James L. Spencer. Judgment for plaintiff. Dexter B. Potter, for plaintiff. Samuel W. K. Allen, for defendant.

MATTESON, C. J. The defendant's claim is based on the assumption that the two accommodation indorsers were joint makers of the note in suit. The note itself shows, however, that they were not joint makers, but successive indorsers; the note being payable to the order of the defendant, and indorsed by him before being indorsed by the plaintiff. In this respect it differs from Carpenter v. McLaughlin, 12 R. I. 270. In the absence of any agreement affecting the liability of indorsers, their liability is determined by the order in which their names appear on the note. We find no error in the ruling of the court directing a verdict for the plaintiff.

The defendant makes the point that the judgment on the note in the suit brought by the bank operated as a merger of the note, is conclusive on the parties to it, and excludes a defense growing out of the relations of first and second indorser, existing between

them prior to the recovery of the judgment. The only case cited in support of the point is Marshall v. Aiken, 25 Vt. 328. That case, however, treats of the effect of a merger on the rights of a surety as against a creditor. The court held that, as against a creditor, judgment upon the note operated as a merger of the note at law, though it might not be so at equity, and became so far conclusive on the parties as to exclude a defense growing out of the relation of principal and surety, existing between the parties in the judgment prior to its recovery. The court, on page 335 of its opinion, says: "We do not suppose that the judgment in any way affects the relation between the principal and surety. That stands, as before, between themselves." We do not think that the merger of the note in the judgment in favor of the bank affected the relation between the plaintiff and defendant as successive indorsers of the note. New trial denied, and case remitted to the common pleas division, with direction to enter judgment on the verdict.

FAUCHER v. WILSON. (Supreme Court of New Hampshire. Hillsborough. July 26, 1895.) COMMON CARRIERS-LOSS OF GOODS FROM NATURAL CAUSES.

1. One engaged in the business of trucking goods from the depot to different stores for particular customers, at prices fixed in each case by special contract, is bound only to exercise reasonable care in respect to the goods.

2. A common carrier is not liable for the loss of molasses by the bursting of the barrel, caused by the fermentation of the contents.

Action by Henry I. Faucher against John W. Wilson. Judgment for defendant.

The defendant was engaged in the business of trucking goods for hire from the railway freight station in Manchester to different stores in the city. On one of the warmest days in the summer of 1891, he transported a hogshead of molasses from the freight station to the plaintiff's store, on Elm street, a distance of a little over half a mile. By reason of the fermentation of the molasses, the hogshead burst while being unloaded. The plaintiff's loss was not caused by any want of ordinary care on the part of the defendant. Each party moved for judg ment in his favor.

Burnham, Brown & Warren, for plaintiff. Joseph W. Fellows, for defendant.

CHASE, J. It is not found that the defendant was a common carrier. The finding that he was engaged in the business of trucking goods for hire from the railway freight station to different stores in the city lacks the distinguishing characteristics of a common carrier, namely, the holding of oneself out as ready "to carry at reasonable rates such commodities as are in his line of

business, for all persons who offer them, as early as his means will allow." Shelden v. Robinson, 7 N. H. 157, 163; Elkins v. Railroad Co., 23 N. H. 275; Moses v. Railroad Co., 24 N. H. 71, 80, 88, 89; McDuffee v. Railroad Co., 52 N H. 430, 448; State v. United States & Canada Exp. Co., 60 N. H. 219, 261; 2 Kent, Comm. 597, 598; Story, Bailm. §§ 495, 508; Brind v. Dale, 8 Car. & P. 207; Alkali Co. v Johnson, L. R. 9 Exch. 338, 343; Scaife v. Farrant, L. R. 10 Exch. 358, 365; Nugent v. Smith, 1 C. P. Div. 423; Fish v. Chapman, 2 Kelly, 349; Allen v. Sackrider, 37 N. Y. 341; Lough v. Outerbridge, 143 N. Y. 271, 278, 38 N. E. 292. inference from this finding is as strong, to say the least, that the defendant's business was limited to trucking for particular customers at prices fixed in each case by special contract, as it is that he held himself out as ready to truck for the public indiscriminately, at reasonable prices. If such was the character of his business, he was not an insurer of the plaintiff's goods (there being no special contract of insurance), and was only bound to exercise ordinary care in respect to them.

The

If the defendant was a common carrier, he is not liable for the plaintiff's loss, since it happened from the operation of natural laws, which a common carrier does not insure against. Hudson V. Baxendale, 2 Hurl. & N. 574; Railway Co. v. Blower, 20 Wkly. Rep. 776; Nugent v. Smith, 1 C. P. Div. 423; Nelson v. Woodruff, 1 Black, 156; Smith v. Railroad Co., 12 Allen, 531, 533; Swetland v. Railroad Co., 102 Mass. 276, 282; Dow v. Packet Co., 84 Me. 490, 24 Atl. 945; Coupland v. Railroad Co., 61 Conn. 531, 23 Atl. 870; Rixford v. Smith, 52 N. H. 355. In Farrar v. Adams, 1 Bull. N. P. 69, it is said that "if an action were brought against a carrier for negligently driving his cart, so that a pipe of wine was burst, and was lost, it would be good evidence for the defendant that the wine was upon the ferment, and, when the pipe burst, he was driving gently." It being found that the plaintiff's loss was not due to any want of ordinary care on the part of the defendant, there must be judgment for the defendant.

SMITH, J., did not sit. The others concurred.

FOSTER v. WILLSON.

(Supreme Court of New Hampshire. Cheshire. March 15, 1895.)

TESTAMENTARY TRUSTS-PRECATORY WORDS. A devise by a wife to her husband, containing an expression of her desire that he should furnish a home, maintenance, and care to and for her father, who was infirm, aged, and dependent, during life, should he need it, imposes upon the husband accepting the devise a binding trust.

Bill by Benjamin F. Foster against Fred H. Willson. Demurrer to the bill overruled.

Bill in equity, alleging that Ella H. Willson, daughter of the plaintiff and wife of the defendant, died April 13, 1892, leaving a will, which was made and executed March 28, 1892, and was approved and allowed April 22, 1892; that the defendant was appointed executor thereof, and has accepted said trust; that since her decease the plaintiff continued to live in the defendant's family until March 1, 1893; that the plaintiff is 82 years old, is infirm by reason of his advanced age, and requires personal care and attention; that, by reason of the defendant's neglect and ill treatment, the plaintiff has been compelled to leave the defendant's family, and reside elsewhere; that the plaintiff has no property and no means of support; and that the defendant, since March 1, 1893, has refused to support him, though requested so to do. The material portions of the will set forth in the bill are as follows: "(1) As to my life policy, I give and bequeath one-half the amount which shall be collected on it to my husband, Fred H. Willson, and one-half to my father, Benjamin F. Foster. (2) As to all the rest, residue, and remainder of my estate I give, bequeath, and devise the same to my said husband, Fred H. Will. son, to have and to hold the same, to him and his heirs and assigns, forever; but it is my wish and desire that he shall furnish a home, maintenance, and care to and for my said father during life, should he need and require it." The prayer of the bill is for a decree for a reasonable sum to be paid by the defendant for the plaintiff's support since March 1, 1893, and for such further sums as from time to time may be needed for the plaintiff's support. The defendant's answer admits the making and probate of the will, but denies that the defendant has neglected or ill treated the plaintiff, or that the plaintiff was compelled to leave the defendant's family by reason of neglect or ill treatment; and avers that the defendant, though under no legal obligation to furnish the plaintiff with a home in his family, has been and still is willing to support and care for him there, but the plaintiff, without cause, refuses to live there. The answer also avers that, by the terms of the will, the defendant is not legally or equitably bound to support or provide for the plaintiff in his family or elsewhere, and insists upon this as a special matter of defense, and claims the same benefit therefrom as if the defendant had demurred to the bill.

D. H. Woodward, for plaintiff. Batchelder & Faulkner, for defendant.

BLODGETT, J. The intention of the testatrix to provide for the maintenance of her father being sufficiently apparent from the will itself, it is the duty of the court to effectuate it by regarding the defendant as

trustee for the father, if, from the whole transaction and the words used, such a trust may be fairly implied. In determining this question it is to be borne in mind that there is no uncertainty as to the subject or object of the testatrix's expression of her wish and desire, and that precatory words in a will, equally with direct fiduciary expressions, will constitute a trust. "Technical language is not necessary to constitute a trust. It is enough if such intention is apparent. Thus words of recommendation, request, entreaty, wish, or expectation, addressed to a devisee or legatee, will make him a trustee for those persons in favor of whom such expressions are used, provided that, from the construction of the whole will, such was the apparent intention of the testator, and provided he has pointed out with sufficient clearness and certainty both the subject-matter and the object of the trust." 1 Perry, Trusts (3d Ed.) 114, note; 1 Jarm. Wills (5th Am. Ed.) 680; Erickson v. Willard, 1 N. H. 217, 229. "The criticisms which have been sometimes applied to this rule by text writers and in judicial opinions will be found to rest mainly on its application in particular cases, and not to involve a doubt of the correctness of the rule itself as a sound principle of construction." Warner v. Bates, 98 Mass. 277, per Bigelow, C. J.

The only element of uncertainty, then, is whether the maintenance of the testatrix's father was intended by her to be executed by her husband as a trust. That is to say, did the testatrix intend to impose an obligation on her husband to carry her wish and desire as to her father's maintenance into effect, or, having expressed her wish and desire, did she intend to leave it to him to comply with them or not, at his discretion? From the nature of the case, no certain answer can be given; but upon the established rule of testamentary construction in this state, as well as in accordance with the general rule where like words have been used by testators (44 Am. Dec., note, 372-379), and with a plain moral duty on the part of the defendant, we are of opinion that the clause of the will which is the subject of the present controversy does not leave the maintenance of the plaintiff to the discretion of the defendant, to be afforded or withheld at his pleasure, but that the devise to him was made on the trust that he should furnish such maintenance during the plaintiff's life, should he need and require it, which the bill alleges and the demurrer admits. "The wish of a testator, like the request of a sovereign, is equivalent to a command" (1 Hill, Trustees [4th Am. Ed.] 73; 1 Perry, Trusts, 121, note); and especially should it be so held in a case like the present, where it would seem that even the slightest wish of the deceased wife, as to the care of her aged, infirm, and dependent father, ought of itself to be sufficiently binding on the defendant's conscience. The question whether

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Whether or not a member of congress is privileged from service of a process issued out of a state court while he is in attendance at a session of congress, which writ is returnable during the session by virtue of the provisions of Const. U. S. art. 1, § 6, exempting senators and representatives from arrest, except for treason, felony, and breach of the peace, during their attendance at a session of congress, is a federal question; and, in the absence of a decision of the supreme court of the United States extending the privilege to civil suits, a motion to quash such a writ thus served on a member of congress will be denied.

Assumpsit by James Bartlett against Henry W. Blair. Defendant's motion to quash summons denied.

A copy of the writ, duly attested, was seasonably left at the usual abode of the defendant, in Manchester, N. H., by a qualified officer. The defendant was then, and still is, a member of the house of representatives of the United States. When the copy was served he was in actual attendance at a special session of congress, and has since been in attendance at said session, and at the regular session of congress, most of the time, in the discharge of his public duties. Counsel for the defendant appeared specially, and moved that the writ and service thereof be quashed, and the case dismissed, on the ground that, as a member of congress in attendance at a session of the house to which he belonged, the defendant was privileged from service of any civil process issued by any state court, and returnable during the session of said house; that no valid service had been made upon him, under the circumstances of this case; and that the court had no jurisdiction. S. W. Emery, for plaintiff. Burleigh & Adams, for defendant.

BLODGETT, J. The question raised involves the construction of section 6, art. 1, of the federal constitution, by which senators and representatives are privileged from arrest, except for treason, felony, and breach of the peace, during their attendance at the sessions of their respective houses, and in going to and returning from the same. This question being a federal one, it is not necessary, and would be useless, for us to form or express an opinion upon it; and in the absence of any adjudication by the supreme court of the United States extending the privilege to the service of a summons, or like civil process, the motion is denied. All con

cur.

BOYD v. TOWN OF DERRY. (Supreme Court of New Hampshire. Rockingham. July 26, 1895.)

MUNICIPAL CORPORATIONS-INJURY UPON CULVERT -FILING CLAIM-RES JUDICATA..

1. A covered drain, leading from the gutter to a point under the middle of the sidewalk, and thence, under and lengthwise of the sidewalk, to a culvert running across the street, is a "culvert," within Laws 1893, c. 59, § 1, providing that towns shall be liable for injuries happening to persons by reason of defects in any "bridge, culvert or sluiceway."

2. A woman who was injured on a culvert showed that she did not know of the law requiring her, in person, to file her statement of her claim against the town within 10 days; that she was ill at the time; tnat her husband, at her request, sent a letter to the selectmen of the town, notifying them of the accident. Held, that a finding that she was unavoidably prevented from filing her statement was justified by the evidence.

3. A finding by the trial court, under Pub. St. c. 76, § 8, that a party injured on a culvert was unavoidably prevented from filing her claim with the selectmen within the 10 days provided by the statute, is conclusive upon the parties.

Exceptions from Rockingham county. Petition by Ella A. Boyd to file a statement of a claim against the town of Derry for damages from a defective culvert. ceptions by defendants. Overruled.

Ex

There was a covered drain leading from the gutter, between the carriageway and the sidewalk, to a point about midway of the sidewalk, and there turning, and running, in the direction of the sidewalk, about seven feet, to a point where it connected with a culvert extending across the highway. There were holes in the sidewalk above this drain, caused by the sifting of the sand and gravel between the covering stones into the drain. The plaintiff, while walking on the sidewalk in the evening, stepped into one of these holes, and was injured. The defendants denied their liability on the ground that the place of the injury was not "a bridge, culvert or sluiceway," within the meaning of Laws 1893, c. 59, § 1. The plaintiff testified, in substance, that she did not know about the law requiring the filing of a statement of a claim of this nature; that, on the eighth day after the injury, her husband, at her request, sent a letter to the selectmen of the town, notifying them of the accident, which

CHASE, J. "Towns are liable for damages happening to any person *** trayelling upon a bridge, culvert, or sluiceway * * * upon any highway, by reason of any obstruction, defect, insufficiency or want of repair of such bridge, culvert or sluiceway *** which renders it unsuitable for the travel thereon." Laws 1893, c. 59, § 1. "Culvert" is here used in its ordinary sense, namely, a covered drain under a road, designed for the passage of water. The jury would be warranted in finding that the plaintiff's injury happened by reason of a defect, insufficiency, or want of repair of a culvert, within the meaning of the statute.

The plaintiff's evidence tended to show that her failure to file a proper statement of her claim within 10 days after receiving her injury (Pub. St. c. 76, § 7) was due to her ignorance of the law, and was without any neglect or fault upon her part. It justified the court's finding (Bolles v. Dalton, 59 N. H. 479; Kelsea v. Manchester, 64 N. H. 570, 15 Atl. 206); and the finding is conclusive upon the parties (Sewell v. Webster, 59 N. H. 586; Page v. Campton, 63 N. H. 197). Exceptions overruled.

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(Supreme Court of New Hampshire. Belknap. July 26, 1895.)

BANK DEPOSITS-LOSS IN TRANSITU. Regular depositors sent currency to the bank by registered mail. It arrived at 1:30 p. m. one day, but the bank had no notice of its arrival until 5 p. m. the next day, when the teller refused to receive the letter, because it was against the rules of the bank to receive money at that That night burglars stole the registered package from the post office. Held, that since it could not be inferred that the bank promised to pay the depositors for the money, in the absence of negligence on the bank's part, the depositors could not recover from it.

Assumpsit by George A. Simpson and another against the Pemigewassett National Bank for money paid and lent. Facts found by the court. Judgment for defendants.

they supposed was a sufficient compliance to

with the law; and that she was too sick to attend to it herself, and intrusted the matter to her husband, not understanding that she was to do it in person. Upon this evidence, it was found that the plaintiff was unavoidably prevented from filing a statement, and leave to file one was granted, subject to the defendants' exception.

G. I. McAllister and Burnham, Brown & Warren, for plaintiff. G. K. Bartlett and J. S. H. Frink, for defendants.

The plaintiffs did business at Centre Harbor, and the defendants at Plymouth. From 1889 to 1893, the plaintiffs, in accordance with an agreement with the defendants, sent money for deposit, subject to withdrawal by check, to the defendants, sometimes by registered letter, and sometimes by express, the defendants paying the charges when the money was sent by express. On July 31, 1893, the plaintiffs sent the defendants, by registered letter, $240 in currency; and it was received at the Plymouth post office about 1:30 o'clock p. n., August 1st. On August 2d they sent another sum in the same way, which was received at the Plymouth post office about 1:30, o'clock p.

m., on the same day, and was delivered to the defendants soon afterwards. About half past 5 o'clock in the afternoon of August 2d, the defendants' teller was informed by the postmaster's assistant that the registered letter which arrived August 1st was in the post office, and should have been delivered to the defendants with their noon mail. This was the first information any one connected with the bank received that the letter was in the post office. The teller declined to receive the letter then, because it was against the rules of the bank to receive money at that time of the day, it being after banking hours, and because the vault of the bank, being locked by a time lock, could not be opened. During the night of August 2d, the post office was broken into, and the registered letter last mentioned was stolen. The plaintiff's seek to recover the $240, and they and the defendants moved 10r judgment in their favor, respectively.

Jewell & Stone, for plaintiffs. Burleigh & Adams, for defendants.

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BLODGETT, J. The plaintiff is not precluded from a recovery of the value of his labor and materials upon the bar and the room containing it by his knowledge that the defendant intended to use them for an unlawful purpose. The case is not distinguishable in principle from Delavina v. Hill, 65 N. H. 27, 19 Atl. 1000. See, in addition, Tracy v. Talmage, 14 N. Y. 162, 67 Am. Dec. 132, and note; Tyler v. Carlisle, 79 Me. 210, 9 Atl. 356, 1 Am. St. Rep. 301, and note; Mi

chael v. Bacon, 49 Mo. 474, 8 Am. Rep. 138, and note; Webber v. Donnelly, 33 Mich. 469; Hubbard v. Moore, 24 La. Ann. 591; Mahood v. Tealza, 26 La. Ann. 108. Exception overruled.

CHASE, J., did not sit. The others concurred.

PAUL et al. v. GRIMM. (Supreme Court of Pennsylvania. Jan. 3, 1898.)

OPENING JUDGMENT-OBJECTION TO JURISDICTION -WAIVER.

1. Where a case is ended in the common pleas by the entry of judgment in pursuance of the order of the supreme court, it cannot be opened by the common pleas for any purpose.

2. The question of jurisdiction cannot be raised in the common pleas after a final adjudication on review.

Appeal from court of common pleas, Westmoreland county.

Assumpsit by John T. Paul, administrator of the estate of Sarah Paul, deceased, and others, against Simon H. Grimm, administrator of the estate of James L. Thompson, deceased, to recover money alleged to have been received by defendant's intestate for land sold and conveyed by him as plaintiffs' attorney in fact. From a judgment in favor of plaintiffs, defendant appeals. Affirmed. For prior report, see 30 Atl. 721.

Williams, Sloan & Griffith, for appellant. John F. Wentling, David A Miller, and Edward B. McCormick, for appellees.

FELL, J. The judgment against the defendant, as administrator, to which exceptions were filed in the common pleas, was entered by direction of this court, and was in entire accordance with the order made. Two of the exceptions related to findings of fact by the court at the trial, which had taken place five years before, and the evident purpose of the appellant was to secure by this means a rehearing of the case. The third exception questioned the validity of the judgment on the ground that the agreement to waive trial by jury was not authorized by the defendant, and could not have been authorized by him, as he was acting in a fiduciary capacity. The limit of time within which the first two exceptions could be filed is fixed by the act of April 22, 1874, at 30 days after service of notice of the decision of the court. The effect of the limitation, by the first section of the act, of a right conferred by section 27 of article 5 of the constitution, need not be considered, as there was no ground on which the third exception could be sustained. The case was ended in the common pleas by the entry of judgment in pursuance of the order of this court, and could not be opened by that court for any purpose. The most liberal rule as to the time within which a question of jurisdiction

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