were used in its purchase, and to sustain both forms of taxation would be to sanction an unauthorized system of double taxation. Nashua

Sav. Bank v. City of Nashua, 46 N. H. 389; Rockingham Ten Cent Sav. Bank v. City of Portsmouth, 52 N. H. 17; Mechanicks' Nat. Bank v. City of Concord, 68 N. H., 44 Atl. 704. The claim that the statute limiting the rate of taxation of deposits in savings banks is unconstitutional is not sustained. "The savings-bank tax is an anomaly, resting on peculiar grounds of public policy, and is universally understood to have acquired the position of an exception to the constitutional rule of equality." Boston, C. & M. R. R. v. State, 62 N. H. 648, 649. On this ground, chapter 108, Laws 1895, is valid, so far as its validity is a question in this case. Tax abated.

GALE v. TOWN OF DOVER. (Supreme Court of New Hampshire. Strafford. March 13, 1896.) HIGHWAYS-DEFECTS-DAMAGES-TOWNSHIP LIABILITY.

Under Laws 1893, c. 59, § 1, making towns liable for damages occurring to teams traveling on a defective highway culvert, rendering the highway unsuitable for travel, an owner is entitled to recover for injuries to his horse caused by its stepping on the defective cover of an opening in a highway designed to admit surface water into a sewer beneath the street.

Case reserved from Strafford county. Action by Betsy J. Gale against the town of Dover. Verdict for plaintiff. On case reserved. Case discharged.

Case for damages to the plaintiff's horse from a defective highway. If the defect from which the damage arose is one for which the defendants are liable, the plaintiff is entitled to judgment; otherwise, there is to be judgment for the defendants.

1894). A culvert, as used in the statute, is a covered drain under a road, designed for the passage of water. Boyd v. Town of Derry, 68 N. H. 272, 38 Atl. 1005. The hole into which the plaintiff's horse thrust his foot was over such a drain, and the injury was caused by the defective covering of a portion of the underground passage designed to carry off the surface water of the street. Such a defect is within the statute, and, according to the reserved case, there should be judgment for the plaintiff. Case discharged.

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

ROUNSEVEL v. OSGOOD. (Supreme Court of New Hampshire. Hillsboro. March 13, 1896.)

CONTRACTS-AGREEMENT TO PAY DEBTS OF THIRD PERSON-STATUTE OF FRAUDS. 1. Where parents conveyed property to their daughter in consideration of her agreement to support, and to pay for necessary medical services rendered, them, a physician rendering necessary services to the parents can recover therefor from the daughter, though he first rendered his bill to the mother, without knowledge of the agreement.

2. Where a daughter, bound by an agreement with her parents to provide them with medical attendance, promised to pay a physician for his services in attending them, if he would send her a bill therefor, such promise was a waiver of any objection to the character of the claim, and, being a promise to pay her own debt, is not within the statute of frauds.

Action by Charles S. Rounsevel against Belle M. Osgood. Judgment for plaintiff.

PARSONS, J. The plaintiff's horse stepped upon the covering of an opening in the highway designed to admit the surface water into the sewer beneath the street, and because of a defect in such covering was injured, as the plaintiff claimed. The only question reserved is whether the defect in the covering of the opening into the sewer is a defect for which the city is liable, under chapter 59, § 1, Laws 1893. By that statute towns are made liable "for damages happening to any person, his team or carriage, traveling 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 the highway unsuitable for the travel thereon. There is no distinction, material in this case, between a sewer and a culvert. A sewer is a drain or passage to carry off water or filth underground,—a subterraneous channel through which water runs off. Webst. Int. Dict. (Ed.

plaintiff attended the parents, made his charges to the mother, and was told by her to present his bill to the defendant, who would pay. After the services were rendered, the defendant told the plaintiff that, if he would send his bill to her, she would pay him. This he did, but the bill was not paid. The services were necessary. The charges were reasonable, and payable by the defendant under the agreement for support. The plaintiff first learned that the defendant had given a bond for the support of her parents after the services were rendered.

Wason & Jackson, for plaintiff. E. S. & H. A. Cutter, for defendant.

CLARK, J. Under the defendant's agreement to support her parents during their lives, the plaintiff's bill for necessary services was her debt. The parents conveyed property to the defendant as a fund for their support, and the defendant, by accepting it upon that condition, promised to pay the bills for their support. Allen v. Thompson, 10 N. H.

32; Warren v. Batchelder, 16 N. H. 580; Arnold v. Lyman, 17 Mass. 400; Hall v. Marston. Id. 575; Mellen v. Whipple, 1 Gray, 317, 322; Keyes v. Allen, 65 Vt. 667, 27 Atl. 319; Browne, St. Frauds, § 187. The parents were authorized, as agents of the defendant, to employ the plaintiff to attend them. It is immaterial that the plaintiff did not learn of the defendant's liability until after the services were rendered. She had assumed the liability in consideration of the conveyance to her, and the debt was her own, as it accrued. If the services were necessary and the charges reasonable, the defendant was bound to pay, and her promise to pay if the plaintiff would send his bill was a waiver of any objection to the character of the claim. It was a promise to pay her own debt, and not within the statute of frauds. Judgment for the plaintiff.

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

TOWN OF GILFORD v. MUNSEY et al. (Supreme Court of New Hampshire. Belknap. March 13, 1896.)

MUNICIPAL CORPORATIONS — ANNEXATION TAXATION UNPAID TAXES TAX COLLECTORS-DEFAULT JUDGMENT-COSTS. 1. Under Laws 1893, c. 241, annexing a part of the town of Gilford to the city of Laconia, as "Ward 6," and specifying that certain property should belong to Gilford, and that Ward 6 should "have and own all the other corporate assets and property of the present town of Gilford," taxes due Gilford, in such territory, but uncollected at the date of annexation, belong to Laconia.

2. Where tax collectors made no defense to an action by a town to recover taxes assessed on property subsequently included in a city before the taxes were collected, the town was entitled to judgment as against them, though the taxes were determined to belong to the city.

3. Where, in an action by a town against its tax collectors for unpaid taxes collected on property incorporated in a city after the taxes were due, but before they were collected, the city was made a party, and was found to be entitled to the taxes, costs cannot be assessed to be paid out of the taxes recovered by the city, since such decree would, in effect, award costs against the prevailing party.

Suit by the town of Gilford against Munsey and others. The city of Laconia interpleaded. Decree in favor of plaintiff and the city.

Sargent & Hollis, for plaintiffs.

Stephen

S. Jewett, for defendants and city of Laconia.

Debt, in this and four other cases, on bonds given by Munsey as tax collector for the town of Gilford in 1890 and 1891, by Taylor as tax collector for the town of Gilford in 1892, and by Blaisdell as tax collector for that part of Gilford known as "School District No. 13" in 1890 and 1891, to recover certain taxes which were uncollected March 1, 1893. The question at issue was whether these taxes belong.

ed to Gilford, or were payable to the city of Laconia, which became party to the proceed ings.

The act of March 24, 1893, establishing the city of Laconia (Laws 1893, c. 241), disannexed certain territory from Gilford and annexed it to Laconia, designated this territory "Ward 6," specified that certain property should belong to Gilford, and provided, among other things, that Ward 6 should "have and own all the other corporate assets and property of the present town of Gilford." Id. § 6. It was held that the defendants had offered no legal defense to the actions on the bonds, and that, as to them, the town of Gilford was entitled to judgment, with costs; that, as between Laconia and Gilford, the former was entitled to the taxes; and a motion that the taxable costs be paid out of the fund was denied on the ground that such an order would compel the payment of costs by the prevailing party. Decree accordingly.

PARSONS, J., did not sit. The others con

curred.

CUTLER v. DUNN.

(Supreme Court of New Hampshire. Rockingham. March 13, 1896.)

FRAUDULENT CONVEYANCE - INSOLVENCY GROUND FOR BELIEF OF-CONCLUSIVENESS OF DECREE.

1. To establish reasonable cause for belief that a debtor is insolvent, it is not sufficient that a creditor had some cause to suspect insolvency, but he must have had such knowledge of facts as to induce a reasonable belief of insolvency.

2. A decree in insolvency appointing an assignee is conclusive of his right to sue, and of the validity of the insolvency proceedings, but does not establish, as against a purchaser from the debtor within three months previous to the insolvency proceedings, that the debtor was insolvent at the time of purchase.

3. Where, in order to set aside a sale made by a debtor before insolvency proceedings, it is required that the purchaser should have had reasonable ground to believe the debtor was insolvent at the time of sale, it must not only be shown that the purchaser had ground for such belief, but that the debtor actually was insolvent at the time.

4. Evidence that a person was intemperate before entering into business, without any evidence as to his conduct of a business afterwards established, is not ground for an intelligent mind to determine that the business was so conducted, 22 years later, as to furnish reasonable ground for belief of insolvency.

Exceptions from Rockingham county.

Trover by Samuel R. Cutler, assignee of Martin R. Kelly, against Herbert F. Dunn, to recover the value of goods sold by Kelly within three months before insolvency proceedings. From an order directing a nonsuit, plaintiff excepted. Nonsuit sustained.

William P. Hale, for plaintiff. Eastman, Young & O'Neill, for defendant.

PARSONS, J. The only question discussed by counsel is whether there was not evidence sufficient to authorize a jury to find

that the defendant had, at the time of the purchase, reasonable cause to believe the debtor insolvent. To establish reasonable cause for belief that the debtor is insolvent, it is not enough that the creditor has some cause to suspect the insolvency of the debtor, but he must have such a knowledge of facts as to induce a reasonable belief of the debtor's insolvency. King v. Storer, 75 Me. 62; Grant v. Bank, 97 U. S. 80; Barbour v. Priest, 103 U. S. 293. "This is a fact to be found by the jury; but, to authorize them to find the fact, it must be established by competent and sufficient evidence.

**

In

The direct evidence introduced by the plaintiff tended to prove that the defendant had no knowledge or belief that the debtor was insolvent. And there was nothing in the circumstance on which the plaintiff relied which had any legal tendency to prove that the defendant was aware of any fact which would indicate insolvency. It did not appear that the debtor had failed to meet any obligation as it became due. * There was nothing * * * which could have authorized them [the jury] to find that he [the defendant] knew, or had cause to suspect, that he [the debtor] then owed debts to a greater amount than his property was ample to discharge." Everett v. Stowell, 14 Allen, 32, 35. This language of the Massachusetts court is exactly descriptive of the plaintiff's evidence in the present case. addition, there is in this case no evidence that, at the time of the sale complained of, the debtor, Kelly, was not perfectly solvent. The decree in insolvency appointing the assignee is conclusive of his right to sue and of the validity and regularity of the proceedings in insolvency (Howes v. Burt, 130 Mass. 368), although our statute does not contain the specific provision of the Massachusetts law (Pub. St. c. 157, § 51); but such decree does not establish, as against the defendant, the debtor's insolvency at the time of sale. When that fact is essential to the assignee's right to recover, he is held to proof. Smith v. Merrill, 9 Gray, 144. Though the statute under which this action is brought (Pub. St. c. 201, § 26) does not, in terms, require the assignee to prove that the debtor was insolvent at the time of the sale, the imposition of the greater burden of proving the defendant's reasonable cause to believe the debtor insolvent would seem to include the lesser one of proof of actual insolvency. It is hardly to be understood that the legislature intended to punish the defendant by taking from him prop. erty fairly bought and paid for because a jury might think he had reasonable cause to believe a fact which did not exist, namely, the insolvency of the debtor at the time of the sale. "Unless the debtor was in fact insolvent, it cannot be held that such a grantee had reasonable cause to believe him insolvent." Wager v. Hall, 16 Wall. 584, 601; Bridges v. Miles, 152 Mass. 249, 253, 25 N. E. 461. The only competent evidence offered

The

upon this issue came from the defendant, who was called by the plaintiff as a witness. It appeared that the insolvent, Kelly, had for some over two years been engaged in the business of retailing groceries in Exeter, in which business the defendant was also engaged for many years at the same place. defendant testified that in the fall of 1893 Kelly wanted to go out of trade, and asked him several times to buy his stock; that on October 18th of that year a trade was agreed upon, by which the defendant was to pay a fair market price for the entire stock, to be ascertained by an inventory of it, and that the defendant then paid Kelly $93.38 to bind the bargain; that an inventory was taken on October 24th, and a bill of sale given for $964.23; that the inventory was taken in the evening, and not completed until about midnight; that the amount was not figured up for several days; that Kelly thought the amount would be the sum named in the bill of sale, but that it proved to be less; that the defendant subsequently, and within a few days, paid Kelly between $600 and $700 in cash, which was the full value of the goods; that no part of the consideration was a previously existing debt; that he purchased in good faith, supposing and believing that Kelly was solvent; that Kelly so represented, told him he was owing no bills of more than 30 days' standing, and that his accounts much exceeded his indebtedness; that Kelly's reputation for solvency was good in the community.

This evidence was uncontradicted. It also appeared that the defendant, in July. 1891, made a business arrangement with Kelly by which he was to furnish groceries to him for the sum of $5 per week; that this arrangement continued for some 32 weeks. when the defendant discontinued it because Kelly had not paid him as he agreed, and because Kelly had become acquainted with the business, and was buying from other parties; that at the time of the sale Kelly owed him some $20 on book account; that, the owner of Kelly's store being unwilling to lease it to him, because he drank, the defendant leased it himself, and sublet it to Kelly. The plaintiff claims that these facts are evidence from which the jury might find that the defendant had reasonable cause to believe Kelly insolvent at the time of the sale, October 18, 1893.

Whether the termination, in March, 1892, of the business arrangement between the parties for the supply of groceries, which had been in force for 32 weeks, and the fact that Kelly had become acquainted with the business, and was purchasing of others, should have given the defendant reasonable cause to believe Kelly financially unsound in October, 1893, would depend upon facts not disclosed in evidence. A fair inference from the fact that Kelly, having become acquainted with the business, bought his goods of others, rather than the defendant, might be that he bought them at a lower rate, and hence was less likely to become insolvent than if he pur

chased of the defendant at a higher price. However this may be, if the fact was that the defendant sold to Kelly at so low a price that his purchasing from others in preference to him for 18 months should have excited in the defendant's mind a distrust of Kelly's financial soundness, there is no such evidence in the case; and the mere fact of Kelly's change of a source of supply of itself alone cannot furnish a foundation for a finding either way. The most stress is put upon the fact that in July, 1891, when Kelly hired the store, the landlord was unwilling to let the store to Kelly, because he drank, and so the defendant hired the store, and sublet it to Kelly; and the case of Alden v. Marsh, 97 Mass. 160, 162, is cited. In that case it is held that the fact that the debtor was intemperate, and neglected his business, would be competent evidence having some tendency to prove the debtor was insolvent, and that it tended to prove the existence of a cause of which insolvency would be the natural and probable effect. The evidence in the present case comes far short of the case cited. While knowledge that a debtor was of intemperate habits and neglected his business, or that he had the reputation of neglecting and mismanaging his business (Bartholomew v. McKinstry, 6 Allen, 567), might, as the usual and natural result of such a course of conduct, promote a suspicion of probable loss in business, and, with other evidence, be competent on the question of reasonable cause, evidence that the respondent drank in July, 1891, before he entered the business, without any evidence as to his habits in the conduct of his business, does not furnish ground for an intelligent mind to determine that the business was so conducted as to furnish reasonable ground of insolvency in October, 1893, two years and a half after. It may be that a man who has once had a habit of intoxication is less likely thereafter to carry on to a successful result a grocery business; but that insolvency generally, in the common experience of mankind, follows the engaging in a new business by one who has indulged to excess in alcoholic stimulant, is not so established, as the relation of cause and effect, that more evidence than the meager fact is not needed to support the desired finding. There is no evidence of intemperate habits in the debtor, or neglect while in the management of this business, and nothing, so far as the case shows, to lead to a belief that he was not operating it successfully.

The facts that the inventory was made in the evening of October 24th, the trade having been made October 18th, and bound by the defendant's payment, and that Kelly at the time of the sale owed the defendant $20 on book account, which was not included in the purchase, are too trivial for serious consideration. The case does not disclose evidence competent for the consideration of the jury upon which they could find that the defendant had reasonable ground to believe the

debtor, Kelly, insolvent at the time of the sale which the plaintiff seeks to set aside. No claim is made that the facts present any other issue for the jury. Whether, under the statute, on any state of facts, an assignee might be entitled to avoid a like sale without proof that the purchaser had reasonable cause at the time of sale to him to suspect the debtor's insolvency, is a question not raised by the case, which has not been considered, and is not decided. Nonsuit sustained.

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

CRIPPEN et al. v. LAIGHTON. (Supreme Court of New Hampshire. Rockingham. July 28, 1899.)

BANKS AND BANKING CORPORATIONS-INSOLVENCY-LIABILITY OF STOCKHOLDERSFOREIGN LAWS-COURTS-COMITY OF STATES -STATUTES-CONSTITUTIONAL LAW.

1. Plaintiff recovered judgment in Kansas against a Kansas banking corporation while defendant was owner of stock therein, and execution was returned unsatisfied. Prior to said judgment said bank sold all its assets to another corporation, which went into the hands of, and was wound up by, a receiver, after said judgment was rendered. Const. Kan. art. 12. § 2, provides that "dues from corporations shall be secured by individual liability of stockholders to an additional amount equal to their stock, and by such other means as shall be provided by law." Gen. St. Kan. 1889, par. 1192, provides that, if an execution issued against a corporation on a judgment is returned unsatisfied, then execution may issue against any stockholder to an extent equal in amount to his stock, but that no such execution shall issue except upon an order made upon motion in open court after notice in writing thereof is given to such stockholder, on which motion the court may order such execution, or the judgment creditor may proceed by action to charge the stockholders with the amount of the judgment. Paragraph 1204 provides that when any Kansas corporation is dissolved, and leaves debts unpaid, suit may be brought for said debts against persons who were stockholders at the time of dissolution, without joining the corporation as a party, and that any stockholder paying a judgment on execution issued against him in such suit may sue all others who were stockholders at such dissolution for the portion of such debts for which they were liable, and that execution in such suit shall direct the collection to be made from each stockholder respectively, and, if any stockholders shall not have property enough to satisfy their portions of the execution, that the deficiency shall be imposed equally upon the remaining stockholders, deducting from the amount a sum in proportion to the amount of stock owned by the plaintiff at the time of the dissolution. agraph 1205 provides that any stockholder paying more than his due portion of the corporation's debts may compel contribution from the other stockholders by action. The case of Howell v. Manglesdorf, 5 Pac. 759, 33 Kan. 194, decides that under said paragraph 1192 execution cannot issue against a nonresident stockholder upon notice served outside the state, and the case of Abbey v. Dry-Goods Co., 24 Pac. 426, 44 Kan. 415, decides that stockholders' liability to creditors is several, and not joint, and each must be sued separately. Plaintiff sued defendant in New Hampshire for a sum equal to the amount of defendant's said stock, to be applied on said judgment. Held, that plaintiff could not recover, as the right to sue defendant as a stockholder

Par

of said bank for its debts arose and existed only by virtue of said Kansas statutes.

2. Since the right to sue defendant arose and existed only by virtue of said Kansas statutes, the action was local, and not statutory.

3. Since the right to, sue defendant arose and existed only by virtue of said Kansas statutes, the action would not lie in New Hampshire, as the laws of one state cannot, ex proprio vigore, have any force or effect in another state. 4. Under Const. U. S. art. 4, § 1, cl. 1, providing that full faith and credit should be given in each state to the public acts, records, and judicial proceedings of every other state; and clause 2, providing that congress may, by general law, prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof; and Rev. St. U. S. § 905, providing the mode in which statutes, records, and judicial proceedings of any state may be authenticated,-the courts of one state are not bound to recognize or enforce the statutes of another state making stockholders individually liable for the debts of a corporation.

5. The question of enforcement of a liability created only by statutes of another state, as distinguished from treating a transaction as modified, affected, or characterized by foreign law, which operated upon it when it occurred, is not one of comity, but one of the power of the courts of the forum.

6. The right to sue a stockholder for the debt of a corporation is not contractual.

7. Const. Kan. art. 12, § 2, providing that dues of a corporation shall be secured by individual liability of stockholders to an additional amount equal to their stock, and by such other means as shall be provided by law, is not self-executing, and of itself creates no liability.

8. A decision of Kansas holding that the relation of a corporation's stockholders to its creditors is contractual is not binding in an action in New Hampshire, based on a Kansas statute making stockholders personally liable for the debts of a corporation, as it is merely a decision on general legal principles, which neither comity nor said provisions of the United States constitution or statutes require should be followed.

9. The right of action created by Gen. St. Kan. 1889, par. 1192, making stockholders individually liable for a corporation's debts, though it is not for a penalty, is such that no obligation of comity requires its enforcement elsewhere. Bill by Crippen, Lawrence & Co. against John Laighton. Bill dismissed.

Bill in equity, alleging that on June 10, 1890, the plaintiffs recovered judgment in the district court of the county of Dickinson, in the state of Kansas, against the Corn State Bank, a corporation established January 31, 1887, by the laws of Kansas, for $865.70 debt, and costs taxed at $215.85; that execution issued on the judgment, and was returned unsatisfied; that the defendant subscribed for and "actually" took five shares of the capital stock of the bank of the par value of $100 each; that by the law of Kansas the plaintiff may have and recover of the defendant, as an individual shareholder in the bank, the sum of $500,-that is to say, an amount equal to the par value of his stock; and praying that the defendant be ordered to pay that amount to the plaintiffs. The defendant (now and always heretofore a citizen of this state), in his answer, "denies that the plaintiffs have any cause of action in this jurisdiction upon the facts stated, or that they can maintain any bill in equity thereon, and claims the benefit of all exceptions which would be avail

able to him upon demurrer." He also denies all the material allegations of the bill, and alleges that, "if any cause of action ever existed upon the facts in the plaintiffs' bill stated, the same was not brought within the time limited for the enforcement of the plaintiffs' demands against him, and so was barred by the statute of limitations." The cause was heard on the bill, answer, and proofs. All the allegations of the bill are found to be true. The defendant was a stockholder of the bank when its indebtedness to the plaintiffs occurred, and until after their judgment against the bank was rendered. December 26, 1889, the Western Trust Company, a corporation established by the laws of Kansas, bought all the assets and assumed all the liabilities of the Corn State Bank, and January 1, 1891, went into the hands of, and was wound up by, a receiver. The constitution of Kansas contains a clause as follows: "Dues from corporations shall be secured by individual liability of the stockholders to an additional amount equal to the stock owned by such stockholders, and such other means as shall be provided by law; but such individual liability shall not apply to railroad corporations, nor corporations for religious and charitable purposes." Const. art. 12, § 2. The statutes of Kansas provide: "That if any execution shall have been issued against the property or effects of a corporation, except a railway or a religious or charitable corporation, and there cannot be found any property whereon to levy such execution, then execution may be issued against any of the stockholders, to an extent equal in amount to the amount of stock by him or her owned, together with any amount unpaid thereon; but no execution shall issue against any stockholder, except upon an order of the court in which the action, suit, or other proceeding shall have been brought or instituted, made upon motion in open court, after reasonable notice in writing to the person or persons sought to be charged; and, upon such motion, such court may order execution to issue accordingly; or the plaintiff in the execution may proceed by action to charge the stockholders with the amount of his judgment." Gen. St. 1889, par. 1192. By the Kansas statute of limitations, "an action upon a liability created by statute" must be brought within three years after the cause of action has accrued, but it does not run in favor of a person while he is absent from the state. absent from the state. All other relevant statutes, practice code provisions, and all pertinent judicial decisions of Kansas are a part of the case, and, as furnished by counsel, are as follows: "If any corporation created under this, or any general statute of this state, except railway or charitable or religious corporations, be dissolved, leaving debts unpaid, suit may be brought against any person or persons who were stockholders at the time of such dissolution, without joining the corporation in such suit; and if judgment be rendered and execution satisfied, the defend