be less than it is under the ruling.of the court, for the garden and stable were both carried on at a profit.

Therefore the order must be: Judgment for the defendant for his costs.

PARSONS, C. J., and BINGHAM, J., concurred. WALKER, J., doubted. CHASE, J., dissented; being of the opinion that, according to the true construction of the lease, the defendant is not entitled to be credited in the accounting with the cost of furnishings and repairs that were necessary merely "for the well-being of the hotel property and the comfort of the guests, and conducive to the best interests of the parties, considering the nature of the business to be done and the location of the hotel property with all of its surroundings," as was ruled in the superior court, but only with the cost, not exceeding $500, of such as were "absolutely necessary." See State v. Tetrick, 34 W. Va. 137, 11 S. E. 1002.

1. An appeal is a continuation of the original suit for the purpose of obtaining a new trial, upon which the case is heard anew as an original action, and as if no judgment had been rendered in the court below.

[Ed. Note.-For cases in point, see vol. 2, Cent. Dig. Appeal and Error, § 2.]

2. Under Pub. St. 1901, c. 68, § 8, providing that, in case of appeal from the decision of the selectmen in laying out a highway, such decision may be affirmed, modified, or reversed, the appeal vacates the judgment, and the judgment rendered on the appeal is a distinct and original

one.

3. Where the original tribunal has no jurisdiction over the subject-matter, its judgment is void, and the appellate tribunal acquires no jurisdiction of the merits on appeal, and the proceedings may be quashed on motion or dismissed.

[Ed. Note. For cases in point, see vol. 2, Cent. Dig. Appeal and Error, §§ 81, 751.]

4. Pub. St. 1901, c. 68, § 2, authorizes any person aggrieved by a decision of selectmen in laying out or altering a highway to appeal to the Supreme Court by petition. Section 5 provides that, if no sufficient objection is made, petitions relating to highways shall be referred to county commissioners. Section 8 provides thatthe decision of the selectmen may be affirmed, modified, or reversed according to the commissioners' report. Held that, as an appeal affords an opportunity for a party aggrieved to be heard anew by an impartial tribunal, the fact that one of the selectmen who originally decided the matter was disqualified under Pub. St. 1901, c. 45, § 6, is not a jurisdictional defect, so as to preclude the court from taking cognizance of the appeal, but is a mere voidable irregularity for which the appeal furnishes an adequate remedy.

Exceptions from Superior Court; Pike, Judge.

Appeal by John M. Bickford from the decision of the selectmen of the town of Franconia in laying out a highway. A motion to strike out a ground of appeal was denied pro forma, and defendants excepted. Case discharged.

The grounds of complaint in the appeal are: (1) The decision laying out the highway; (2) the assessment of damages; (3) that one of the selectmen was disqualified by interest, as an owner of land over which the highway passed. The defendants moved that "the last ground of appeal be stricken out, for the reason that this grievance is not the subject of appeal."

George F. Morris, for plaintiff. Batchellor & Mitchell, for defendants.

PARSONS, C. J. An appeal is a continuation of the original suit, for the purpose of obtaining a new trial and a new judgment. It is analogous in its effect to the award of a new trial, by which the previous verdict is entirely set aside, and the case is to be heard anew like an original action, and as if no judgment had been rendered in the court below. In highway appeals, and generally, the appeal vacates the judgment in the court below, and the judgment in the appellate court is a distinct and original judgment. Pub. St. 1901, c. 68, § 8; Morse v. Wheeler, 69 N. H. 292, 45 Atl. 561; Cook v. Bennett, 51 N. H. 85, 91; Stalbird v. Beattie, 36 N. H. 455, 72 Am. Dec. 317; Wallace v. Brown, 25 N. H. 216, 220; Mathes v. Bennett, 21 N. H. 188, 203.

In his highway appeal the plaintiff alleges that the tribunal rendering the judgment from which he appealed was disqualified, because of interest, to act in the decision of the original petition. Pub. St. 1901, c. 45, § 6. The defendants move to strike this allegation from the petition. They take the position in their brief that the plaintiff, if aggrieved by the illegal constitution of the original highway tribunal, has a sufficient remedy in a new trial before a new tribunal, to which he is entitled upon appeal; while the plaintiff advances the claim that the disqualification, if conceded, or found to be true, is a sufficient objection against referring the petition to the county commissioners (Pub. St. 1901, c. 68, § 5); that no new trial can be had, but the decision of the selectmen must be reversed without an investigation of the merits.

Upon these claims, the real question between the parties is whether the error alleged is fatal to the further maintenance of the original petition. This question would seem to be more properly raised by a motion by the plaintiff to quash or dismiss the proceedings, or by objection to a reference of the petition to the county commissioners. As the matter in dispute appears to be plain, it is not advisable to take time to consider whether it is technically presented by

the motion and pro forma ruling in the superior court. The question is as to the jurisdiction of the appellate court to entertain the appeal and proceed to a trial upon the merits. Where the objection goes to the jurisdiction of the original tribunal over the subject-matter, the judgment is void, and the appellate tribunal acquires no jurisdiction of the merits upon appeal. The proceedings may be quashed on motion, or dismissed. State v. Gerry, 68 N. H. 495, 38 Atl. 272, 38 L. R. A. 228; State v. Perkins, 63 N. H. 89; State v. Thornton, 63 N. H. 114; Northern R. R. v. Enfield, 57 N. H. 508; State v. Runnals, 49 N. H. 498; State v. Dolby, 49 N. H. 483, 6 Am. Rep. 588; Perkins v. George, 45 N. H. 453. But the personal disqualification to act, in a particular case, of a member of a tribunal having jurisdiction of the subject-matter, does not render the judgment in such case void. It is merely voidable-liable to be set aside upon appeal, writ of error, prohibition, or certiorari. For such error, an appeal furnishes a complete remedy. Fowler v. Brooks, 64 N. H. 423, 424, 13 Atl. 417, 10 Am. St. Rep. 425; Logue v. Clark, 62 N. H. 184; Perkins v. George, 45 N. H. 453, 454; Moses v. Julian, 45 N. H. 52, 54, 84 Am. Dec. 114; Gorrill v. Whittier, 3 N. H. 265, 269; Van Fleet, Col. At. § 45. The original petition is not necessarily quashed for error in the proceedings before the appeal. The whole case as presented by the appeal is before the court, and, if there are defects of form or substance, they give the plaintiff no cause of complaint, the court to which he has appealed having jurisdiction of all matters in which there was error. Moses v. Julian, supra; Perkins v. George, supra; Adams v. Adams, 64 N. H. 224, 227, 228, 9 Atl. 100; Campbell v. Windham, 63 N. H. 465, 3 Atl. 422; Peirce v. Portsmouth, 58 N. H. 311; Underwood v. Bailey, 58 N. H. 59; Id., 56 N. H. 187. It is a general rule that objections to the competency of a tribunal having general jurisdiction of the subject-matter may be waived. Gilmanton v. Ham, 38 N. H. 108; Warren v. Glynn, 37 N. H. 340. By statute the same causes disqualify a selectman from sitting in the decision of a case which would disqualify him from acting as a juror in the cause. Pub. St. 1901, c. 45, § 6. The objection to the competency of a juror by reason of his interest in the cause may be waived, and is waived by failure to object before the trial, unless the party appears to have exercised due diligence and failed to discover the objection in season. Harrington v. Railroad, 62 N. H. 77; Ready v. Company, 67 N. H. 147, 36 Atl. 878, 68 Am. St. Rep. 642. A like objection to a judge may be waived when the statute does not make the proceedings void. Moses v. Julian, 45 N. H. 52, 54, 84 Am. Dec. 114. In like manner, å similar objection to a road commissioner may be waived. Towns v. Stoddard, 30 N. H. 23. So far as all parties to the original proceeding are concern

ed, who have not appealed, it may be presumed that they have waived the objection of the disqualification of one of the selectmen, if it exists. The plaintiff has upon

his appeal full opportunity for a fair trial before an impartial tribunal. No good reason appears why the proceeding should be dismissed, and the parties required to begin anew and bring the case to the court upon another appeal by the plaintiff, or upon the complaint of the petitioners for the refusal of the selectmen to lay the way. Pub. St. 1901, c. 68, § 1. There is no objection to the sufficiency of the original petition. As mere failure of the selectmen to act would confer jurisdiction upon the court, error in the manner in which they acted cannot necessarily defeat that jurisdiction. The selectmen, although one of their number was interested, still had jurisdiction of the subject-matter. The objection that one individual of the board was interested is, in effect, an objection to their jurisdiction over the parties-an error for which a sufficient remedy is furnished by an appeal. Crowell v. Londonderry, 63 N. H. 42, 49; Campbell v. Windham, 63 N. H. 465, 3 Atl. 422; Peirce v. Portsmouth, 58 N. H. 311.

In a probate appeal a disqualification of the tribunal appealed from is a sufficient ground for appeal-a reason why there should be a new trial; but such objection does not operate to quash the proceedings. In a highway appeal the objection is immaterial as a ground why there should be a new trial, because the fact that the appellant (assuming that he has such interest as entitles him to appeal) considers himself aggrieved is sufficient ground to entitle him to a new trial upon appeal, without reference to the validity of the reasons which seem to him sufficient. Pub. St. 1901, c. 68, § 2; Northern R. R. v. Enfield, 57 N. H. 508, 510; Underwood v. Bailey, 56 N. H. 187, 191. As a ground for a dismissal of the proceedings without a trial, the objection can have no more effect in a highway than in a probate appeal.

Case discharged. All concurred.

agreed to resell the property to the assured on his paying a specified sum was incompetent to show that the assured had an interest in the property at the time of the loss.

3. A fire policy stipulating that the insured shall state by what title he holds the land on which the building is erected is rendered void by the assured conveying the premises by a deed absolute in form, containing covenants of warranty, though the grantee on the same day agreed to resell the property to the assured on his paying a specified sum; the interest of the assured acquired by the agreement being a new interest, distinct from that possessed by him when the policy was issued.

4. Where the result of a case if submitted to the jury must have been the same as the result reached by the court in directing a verdict, the error, if any, in withdrawing the case from the jury, was harmless.

Appeal from Circuit Court, Harford County; David Fowler, Chief Judge.

Action by Thomas H. Bennett, administrator of Mary E. Cochran, deceased, against the Mutual Fire Insurance Company of Harford County. From a judgment for defendant, plaintiff appeals. Affirmed.

Argued before McSHERRY, C. J., and BRISCOE, BOYD, PAGE, PEARCE, SCHMUCKER, and JONES, JJ. John L. G. Lee, for appellant. H. Harlan, for appellee.

William

JONES, J. The appellant, as administrator of Mary E. Cochran, sued the appellee in the court below, in an action of assumpsit, to recover the amount of the insurance of a dwelling house which had been insured by the appellee in a policy of insurance against loss by fire issued to the appellant's intestate by the appellee on the 25th of March, 1890. In the policy the dwelling house in question was insured to the amount of $300, and the contents thereof to the amount of $100. On the 7th day of February, 1901, the dwelling house and contents were totally destroyed by fire. Upon proof of loss made to the appellant, it paid the amount ($100) of the insurance upon the contents of the dwelling house, but refused to pay the amount for which the building had been insured. As a defense against the claim of the appellant for the loss upon the dwelling, the appellee pleaded "that before the date of the alleged fire, to wit, on or about the 27th day of December, 1899, Mary E. Cochran [appellant's intestate] sold and conveyed the land upon which the building insured" under the policy sued on "stood, and the building itself, to one John E. Bennett, by deed with warranty, and she suffered no loss by the burning thereof for which the defendant [appellant] is liable." This plea was demurred to, and the demurrer was overruled; and after further questions raised upon the pleadings, and rulings thereon, not essential to be more particularly noticed now, issue was joined thereon. At the trial of the case the appellant offered in evidence a deed dated the 6th day of December, 1875, from Henry W. Archer and others to Mary E. Cochran,

his intestate, which conveyed to said Mary E. Cochran, in fee simple, a lot of five acres of land particularly described in said deed, and proved that this was the same property mentioned in the policy of insurance sued on, and in the application for insurance, and upon which were the dwelling house insured, and the contents thereof. He also offered in evidence the policy of insurance issued to his intestate, Mary E. Cochran, with the conditions and stipulations annexed thereto, among which was the following: "The party applying for insurance shall give the name of the land on which the buildings sought to be insured are erected, or such other description whereby the land may be identified and located, and shall state by what title the same is held, if any other than a fee; and if any liens thereon, the amount and character thereof." He further offered in evidence a receipt for interest on the premium note given by his intestate to the insurance company for the year ending the first Monday of January, 1900, reciting that it had been paid by Mary E. Cochran, and one for the interest on said premium note to the first Monday of January, 1901, reciting that it was paid by "Mary E. Cochran per ck. of J. E. Bennett." Then he offered evidence that Mary E. Cochran formerly occupied the property insured; that she had removed therefrom several years before the fire, but had continued up to the time of the fire to collect the rent therefrom, and to pay the taxes and insurance thereon, and to pay to John E. Bennett the interest on $400. The appellee (defendant below) then offered in evidence a deed dated the 27th of December, 1899, from Mary E. Cochran (appellant's intestate) to John E. Bennett, which conveyed to him, in fee simple and unconditionally, the property, land, and premises which had been conveyed to her by the deed heretofore mentioned from Henry W. Archer and others, and upon which was the house insured under the insurance policy here in question. The deed recites the consideration therefor as follows: "In consideration of the sum of Four Hundred Dollars which the said Mary E. Cochran owes John E. Bennett on a mortgage, which mortgage is recorded," etc.,

*

and for divers other good and valuable considerations "-and contains a covenant of special warranty of the property conveyed, “except as to the mortgage above mentioned," and a covenant for further assurances. The appellant then offered to prove, "for the purpose of rebutting the deed" which has just been mentioned as having been put in evidence by the appellee, "a supplemental agreement made subsequent to the execution of said deed, and at the same time (that is, on the same day)," to the effect that the grantee therein. Bennett, "resold for the sum of $400 the said property, which is worth $700,

to Mary E. Cochran, and that the said Bennett never exercised any acts of ownership over said property after the deed

to him, except to resell the same as aforesaid, and that the said Mary E. Cochran from said time exercised acts of ownership over, managed and controlled, said property, calling the same her own,

*

until the time of her death"; and further that after the death of Bennett, the grantee in the deed, his executrix told Mary E. Cochran, upon being asked in regard to the agreement of the said Bennett-if she would carry out the same if the said Mary E. Cochran paid the $400-that she, the said executrix, knew that the agreement was made, and that she, as executrix, would carry it out. This offer of proof was objected to, and, the objection having been sustained by the court, the appellant excepted. The court then granted a prayer offered by the appellee that there was no evidence in the case legally sufficient to entitle the plaintiff (appellant) to recover, and the verdict of the jury must be for the defendant (appellee). This action of the court is the subject of the appellant's second exception.

The question that is made by the state of the record which has been indicated is this: Had the appellant's intestate, at the time of the occurrence of the fire which destroyed the property insured, by the policy of insurance here in suit, an interest in the property described in the policy that was covered by the contract between her and the insurance company? It is urged on behalf of the appellant that the evidence set out in the appellant's first exception ought to have been admitted, to show that, notwithstanding the deed of the 27th of December, 1899, the appellant's intestate, Mary E. Cochran, had, at the time of the loss here the subject of suit, an insurable interest in the property destroyed, other than the personal effects for which payment was made. But it is one thing to have an insurable interest, and quite another to have that interest insured. It is said in the case of Washington Fire Ins. Co. v. Kelly, 32 Md. 421 (see page 436), 3 Am. Rep. 149, that "there is no doubt that an insurance against fire, without an interest in the subject-matter insured, is a wagering contract, which the law does not sanction; and it is therefore necessary that the insured should have an interest in the property insured, not only at the time of the insurance, but when the loss by fire occurs. If the insured sell the property, and transfer all his interest therein, or assign all interest in the policy, before the loss happens, he cannot recover, by the principle of the common law." This same doctrine is expressed as follows in Angell on Life & Fire Insurance, § 193, p. 230: "An insurance against fire, without an interest, is a wagering contract, and therefore void. It is requisite, likewise, that the assured, though he had an interest at the time of the insurance, should also have an interest in the subject insured at the time of the loss." And this, the author just quoted says, has been so held since the old cases of Sad

lers' Company v. Badcock and Others, 2 Atk. 554, and Lynch v. Dalzell, 3 Bro. Rep. 497. See, also, 16 Am. & Eng. Enc. of Law, 846. As has been seen, it was required by one of the stipulations of the contract of insurance between the appellee and the appellant's intestate that the insured should state by what title the land upon which the building insured is erected "is held, if any other than a fee simple," etc. The title of the appellant's intestate to the property insured in this case, and her interest therein, was, at the time of the insurance of it, that which she acquired under the deed of the 6th of December, 1875, from Archer and others to her; and the proof shows that the property covered by the policy of insurance, as respected the building insured, and mentioned in the application for the insurance, was the same as that described in and conveyed by that deed. Now, before the occurrence of the fire which destroyed the building insured, the appellant's intestate had, by her deed of the 27th day of December, 1899, conveyed away from and divested herself of all interest whatever in the property so mentioned in and covered by the policy of insurance, the cause of action in this suit, and had warranted the title to the property so conveyed, against herself and those claiming under her. This was the necessary import and effect of her deed just referred to, and there could be no question, if the case rested here, that the appellant must fail in this suit, by reason of the want of interest of his intestate in the subject of insurance at the time of the loss for which he is suing. The appellant sought to rebut and avoid the effect of the deed last referred to by the offer of the evidence which has been set out as forming the subject of his first exception. This evidence was not competent, in any aspect, for the purpose for which it was offered. If it was meant thereby to show that the deed in question was not to have the effect imported in its terms and provisions, but that, notwithstanding these, the appellant's intestate was to retain an interest in the property in question, it is very clear that it was not competent to contradict the deed or vary its effect in this way in a court of law. The case of Boyce v. Wilson, 32 Md. 122, is here a very apt illustration of this principle. Besides, there does not appear a pretense that the deed in question did not express just what the parties to it intended that it should. On the other hand, if the evidence was intended merely to show that, at the time of the fire which oc casioned the loss in controversy here, the appellant's intestate had, in the subject of the loss, an insurable interest, and assuming, without deciding, that it would have been sufficient to show that she had at that time an interest that might have been made the subject of insurance, still it was not competent evidence in the present suit, because, by the very terms of the offer, such interest arose out of an agreement made between the

appellant's intestate and her grantee in the deed of the 27th of December, 1899, subsequent to the execution of that deed. It was therefore a newly acquired interest, and one entirely distinct from that possessed by the appellant's intestate at the time the policy of insurance which is the cause of action here was issued to her. It was not the interest in the contemplation of the parties at the time the contract of insurance was made, and not the interest embraced within its terms or its intent. Upon the execution of the deed of the 27th of December, 1899, the grantee in the deed had the absolute title to and control over the property it conveyed. If, instead of making an agreement, as it is claimed here he did, with the appellant's intestate to sell it to her upon the terms mentioned, he had made a like agreement with a third party, could it be for a moment contended that such third party would have had, by reason of the loss occurring as has been mentioned, a cause of action against the appellee upon the policy of insurance which is the cause of action in this case? If not, what is there to make a distinction as to legal rights in favor of the appellant or his intestate? Again, there was no offer to show in this connection that there had been, with the transfer of interest in the property insured, any interest of the policy in conformity with the provisions of the contract of insurance. The policy, in one of its stipulations, provided that it might be "transferred or assigned by obtaining the consent of the secretary" of the company, "and any transfer or assignment made without such consent expressed in writing" should "cause a forfeiture of all benefits that might otherwise be derived from the policy." To keep the policy in force, therefore, when there was a transfer of the interest insured thereunder, or when it was desired to protect with the policy any new interest created in the insured property, it was expressly provided in the contract of insurance how this was to be done; and unless the transfer or assignment of the policy was made, and in the way provided in the conditions annexed to the policy, it was forfeited, by its express terms. There was no error in the ruling of the court upon the first exception.

In regard to the second exception, taken to the granting of the appellee's prayer, it is unnecessary to consider and decide whether, as there was evidence on both sides of probative effect, it would have been more regular for the court to have submitted the case to the jury to find the fact of the deed of the 27th of December, 1899, with the instruction that upon such finding they should render a verdict for the appellee (defendant below). Under the circumstances of the case, this would have been but a mere form. The result in the case must have been the same, and, in any view of this, the appellant sustained no injury from the action of the court in question. It is quite as unnecessary to take

up for consideration the several demurrers that were interposed in the course of the pleadings. The question these were designed to raise, and which was passed upon by the court in ruling upon them, was the same as that which was raised and ruled upon in the first exception, and has been disposed of here in considering that exception. It was brought to the attention of the court that the cause of action here was a sealed instrument, and the action was in assumpsit. This, of course, needs no consideration, since the appellant here was the plaintiff below.

The judgment below will be affirmed. Judgment affirmed, with costs to the appellee.

(100 Md. 390)

SWINDELL BROS. v. J. L. GILBERT & BRO.

(Court of Appeals of Maryland. Jan. 19, 1905.)

SALES-ACTIONS FOR PRICE-EVIDENCE SHOWING SALE-SUFFICIENCY-VERDICTREVIEW-AGENCY.

1. Evidence, in assumpsit for lumber sold. held sufficient to authorize the jury to find that there had been a sale.

2. Where there is evidence to sustain the verdict, the court on appeal will not determine the weight of conflicting evidence.

3. Where a third person made a contract with plaintiff for the purchase of building materials, and defendant, with knowledge of the facts, accepted the benefits of the third person's acts, received the materials, and disposed of the same to his own use, and made payments according to the contract, a finding that the third person was defendant's agent was warranted.

[Ed. Note.-For cases in point, see vol. 40, Cent. Dig. Principal and Agent, § 649.]

4. Where, in an action for lumber sold, defendant denied the sale, and it appeared that defendant had at another time bought lumber from plaintiff, a letter written by defendant to plaintiff stating that defendant had favored plaintiff with his patronage was admissible, it being for the jury to determine whether it had reference to the lumber sued for or the other transaction.

Appeal from Superior Court of Baltimore City; Pere L. Wickes, Judge. Action by J. L. Gilbert & Bro. against Swindell Bros. From a judgment for plainAffirmed.

tiffs, defendants appeal.

Argued before McSHERRY, C. J., and BRISCOE, BOYD, PAGE, SCHMUCKER, PEARCE, and JONES, JJ.

Robert F. Stanton and Wm. S. Bryan, for appellants. Joseph C. France, for appellees.

PAGE, J. This is an action of assumpsit, brought by the appellees to recover for certain lumber alleged to have been sold to the appellants. In the original writ the firm of Davis & Bro. were joined as defendants, but before the case went to the jury they were dismissed on motion of the appellees. The judgment being against the appellants, they have appealed.

There were five exceptions-four to the admission of evidence, and one from the re