In re BARNEY'S WILL. (Supreme Court of Vermont. Chittenden. June 14, 1899.)

TRIAL-IMPROPER OPENING STATEMENT BY COUNSEL WILL CONTEST-EVIDENCEALLOWING PAPERS TO GO TO JURY.

1. A statement by counsel for the contestants of a will in opening that, unless the proponent succeeded better in his proof than on a former trial, he would not be able to substantiate the facts stated by his counsel, is improper, and cannot be held harmless.

2. Counterfeit signatures of the witnesses to a will are not admissible in evidence on a contest of the will, nor is their use permissible in the cross-examination of such witnesses.

3. Where the contestants of a will claimed the will to have been an unnatural one, and introduced evidence of the impoverished condition of some of the testator's heirs who were excluded by the will from any share in his estate, and of the friendly relations between the testator and some of them, evidence of the unfriendly feeling of the testator towards the husband of one of such heirs and the son of another is admissible in behalf of the proponent.

4. On the trial of a will contest it was error to permit the beneficiary, who was a lawyer, and himself drew the will, to be asked on crossexamination if he did not know that under the Roman law such a will was void, such matter being entirely collateral and irrelevant to any issue before the jury, and the tendency of the question prejudicial to the proponent.

5. Declarations of a testator are admissible on the question whether he was contented or discontented at a particular time, or under particular circumstances.

6. What papers should go to the jury is a matter within the discretion of the trial judge, but it is error to permit the jury to take with them papers which were not admissible in evi

dence.

Appeal from probate court, Chittenden county; Ross, Judge.

This was a contested proceeding for the probate of the will of Ira Barney, deceased. From a decree entered on a verdict for the contestants, proponent appeals. Reversed.

The proponent, Charles T. Barney, is a grandnephew of the testator, is a lawyer, and himself drew the will. The contestants are all the lawful heirs of the deceased, except the proponent's father. The will bequeaths all the testator's property to the proponent after a life estate in the testator's widow. The widow, the proponent, and the proponent's father are named as executors. The case had been tried once before, resulting in a verdict in favor of the will, and the judgment had been reversed in the supreme court upon the contestants' exceptions, and a new trial ordered. 70 Vt. 352, 40 Atl. 1027. the beginning of the present trial, counsel for the proponent made an opening statement to the jury of such facts as his testimony would tend to establish, in reply to which counsel for the contestants remarked that, unless the proponent succeeded better in his proof than he did on his former trial, he would not be able to substantiate the facts stated. To this remark the proponent seasonably excepted. The contestants, under exception, were permitted to ask the proponent in cross-examination whether he did not know, at the time

he was called upon to draw the will, that by the Roman law such a will would be void as to the drawer of it, and he replied that he did.

Seneca Haselton, D. J. Foster, and Charles T. Barney, for appellant. W. H. Bliss, F. B. Deberville, and R. E. Brown, for appellees.

TAFT, C. J. 1. The remark of the contestants' counsel in his opening statement to the jury was improper. It was not in line with what an opening statement should be, viz. a statement of the issues in the case and the facts proposed to be shown, to enable the jury to better understand the testimony as it is given. A lengthy statement is never necessary, and an argumentative one improper. A discussion of whether the adverse party will or will not be able to substantiate the facts as claimed by him is not a legitimate opening statement. It is a fact which can only be determined by the result of the trial, and the opinion of counsel in respect to it is illegitimate. It cannot be said in this case that the remark was harmless, for the trial began with the statement of counsel that upon a former trial of the case the verdict or result of the trial was against the will. We cannot say that it had no effect upon the minds of the jurors. It may have prejudiced them against the will.

2. The contestants claimed that the signatures on the alleged will, from the translucency of the paper, might have been transferred thereto by tracing; and bogus signatures of two of the witnesses whose names appear on the instrument as attesting witnesses, and of the alleged testator, were admitted in evidence, and the two witnesses were permitted to testify that, if shown the bogus signatures, and not told they were counterfeit, they might have thought they were genuine. This testimony was taken under objection and exception. The bogus signatures presented a collateral issue, and should not have been admitted, nor the witnesses questioned in respect to them. That the rule is not to be relaxed in favor of a cross-examination is equally clear, and has been many times held by courts of last resort in England and the United States.

3. The contestants claimed the will was an unnatural one, and gave evidence tending to show the impoverished condition of some of the testator's heirs, and the friendly relations existing between him and some of them, as well as the financial circumstances of the proponent's mother, who was not an heir of the testator. The testator had two nieces who were of his heirs, and, had he died intestate, each would have inherited one-sixteenth of his estate. Testimony tending to show unfriendly feelings towards the husband of one niece and a son of another was excluded. It might have been natural and reasonable for the testator to exclude an heir whose husband he disliked, or to whose son he was hostile. It is difficult, generally, to divorce from one's

Pe

mind the fact that the prosperity of one's wife or mother redounds in a pecuniary way to the benefit of the husband or son. cuniary injury resulting to persons standing in such relations is recognized by our statutes in actions for the death of a person caused by a wrongful act. It was error to reject the testimony.

4. The proponent's knowledge of the Roman law at the time he drew the will was not an issue in the case; neither was it any part of his legitimate cross-examination. The testimony served to bring before the minds of the jury the fact that by the law of Rome the will was void. If this was legitimate, his knowledge or ignorance of what the law of any other country was would likewise be permitted, and so a multitude of immaterial collateral issues would be raised, having no relevancy upon any of the questions before the jury. The admission of the testimony was

error.

5. A question is made as to the relevancy of one Ward. The custom of the bank was inadmissible unless it was a general custom, observed by all. The witness claimed he was not an expert, but contestants' counsel made him one, and obtained his testimony, and then objected to his cross-examination because he said he was not an expert; and the court, after permitting the examination in chief, excluded the cross-examination upon the ground that the subject was not one of expert testimony, and that the jury could judge of the matter as well as the witness. It is unnecessary, however, to pass upon this question, as the judgment must be reversed upon other grounds, and the question will probably not again arise.

6. The proponent put in testimony that during the summer of 1895-the year prior to his death-Ira Barney, who then lived at Truman Barney's, was well and jolly, very happy and contented, and that his mind seemed to be at peace. It was not error to permit contestants to prove his declarations tending to show the contrary. There was no better way of showing whether Ira was contented or discontented than by his declarations.

7. This exception is waived.

8. The proponent excepted to that part of the charge in which the trial judge stated the circumstances which cast upon the proponent the burden of proving by satisfactory evidence that the alleged will was the free and intelligent act of Ira Barney, and that he fully understood its contents and effect. The charge of the court is not before us. The criticism upon that part of the charge above noted is that the jury were told that the facts above referred to were circumstances of suspicion which cast upon the proponent the burden, etc. We infer that the judge, in the other parts of the charge, properly instructed the jury that the circumstances were subject to explanation; and whether any given fact was suspicious, or to what extent suspicious, was for the jury to say upon a consideration

of the whole testimony in the case. In some cases any certain fact might have great weight against the validity of the will, when in other cases it might have little or none at all.

9. What papers should go to the jury is ordinarily, and perhaps in all instances, a matter of discretion in the trial judge, but inadmissible papers should never be sent to the jury. In permitting the bogus signatures to go, there was error. Judgment reversed, and cause remanded.

BURNS v. BURNS.

(Supreme Court of New Hampshire. Merrimack. July 27, 1894.) DIVORCE-COMPETENCY OF EVIDENCE OF

ADULTERY.

In an action for divorce on the ground of adultery, evidence of acts of familiarity, inclinations, and purposes of the parties, and other evidence, was found insufficient to support the charge that defendant committed the crime on February 1st, and other days following, before October 28th. Held, that this finding does not render the same evidence incompetent in a subsequent trial, where the issue is adultery committed after October 28th.

Exceptions from Merrimack county.

Libel for divorce by James H. Burns against Candace M. Burns. To a ruling of the lower court on the evidence, plaintiff and defendant both except. Case discharged.

The cause alleged is the wife's adultery with one S. on or about April 1, 1890. The defendant filed an answer denying the charge, and averring that the question of her adultery before October 28, 1891, had been adjudicated in her favor. On that date she filed a petition against her husband for separate maintenance, alleging nonsupport. At the April term, 1892, the cause was tried. The husband admitted that he had refused to support his wife, but alleged in justification that she had committed adultery with S. "on or about February 1, 1891, and on divers days and times between that date and the date of the filing of the petition, to wit, October 28, 1891." A decree was entered in favor of the wife. In the present suit the defendant excepted to the ruling allowing the introduction of evidence tending to prove adultery before October 28, 1891. The plaintiff excepted to the ruling that he should be confined to evidence as to acts of adultery committed since that date, and to acts of adultery, if any, committed before that date, as to which no evidence was offered on the former trial. The defendant also excepted to the last part of this ruling. The trial was suspended pending a decision on the exceptions.

Albin & Martin, for plaintiff. Sargent & Hollis, for defendant.

PER CURIAM.1 Though it may be an adjudicated fact that the defendant did not commit adultery with S. on the 1st day of Febru

1 See footnote, 36 Atl. 607.

ary, 1891, and on divers subsequent days before October 28, 1891, it does not follow that the evidence, which was found to be insuffi cient to prove the allegation, cannot be received upon the question whether adultery was afterwards committed by the same parties. The issue presented is not the same in both cases, and, while all the competent evidence offered in the former case did not prove the affirmative of the issue then tried, it cannot be said that no part of it is admissible upon the issue raised in this case. Acts of familiarity, the inclinauions and purposes of the parties, and a great variety of facts competent to be considered as tending to prove adultery on a particular day, are not rendered incom petent upon the issue of adultery on a subsequent day by the circumstance that the first allegation was not proved. The competency of the evidence may be the same in both cases, though its probative force may differ.

It is not deemed expedient to consider the exceptions taken to the last ruling of the court. They suggest questions which may not arise on a trial of the case, or which may be presented in forms materially modified by circumstances not now apparent. The exact form of the question of adultery tried in the former case, and the precise terms of the record relating to the times of the alleged adulterous intercourse, if they are matters of record, may be material. The actual issue tried in that case does not appear. The wife was charged with the commission of the crime "on or about February 1, 1891, and on divers days and times between that date and the date of the filing of the petition, to wit, October 28, 1891." The husband may have introduced evidence bearing upon the question of her chastity during the whole of this period, or he may have confined his testimony relating to that subject to a particular day or other portion of the time alleged. In the absence of more definite evidence of what was in fact tried, it cannot be held that the issue determined was as broad as the allegation. Morgan v. Burr, 58 N. H. 470. A further finding of facts is essential to a satisfactory consideration of the question presented. Case discharged.

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

HEALD V. CONCORD & M. R. R. (Supreme Court of New Hampshire. Hillsboro. July 27, 1894.)

TRIAL-ARGUMENT STATEMENTS NOT SUPPORTED BY EVIDENCE.

1. Plaintiff was injured at a railroad crossing by the lowering of the bars used to prevent teams from crossing the track, whereby his horse became frightened. There was evidence that the bars were lowered on this occasion, but no evidence that such acts were a frequent occurrence when teams were crossing. Plaintiff's counsel, in his argument, stated, in effect, that defendants had tolerated this dangerous practice for "all this time,"-apparently meaning for a long time. Held, that this amounted to testi

mony given by an unsworn witness, and was so prejudicial to defendants as to constitute a ground for reversal.

2. In his argument to the jury, plaintiff's counsel said: "You must have in mind that there is business carried on there that I submit never ought to be carried on or endured in any community, and that is the use of that crossing as a public highway for shifting purposes. *** I say to you that the man who would start one of those bars when a team is on the track -the corporation that would tolerate for all this time such practice as that--deserves your admonition." Held, that the starting of the bars was referred to as having been tolerated for "all this time," and not the use of the crossing for shifting purposes, and that such remarks were prejudicial error.

Exception from Hillsboro county.

Case for personal injuries by George F. Heald against the Concord & Montreal Railroad. There was a verdict and judgment for plaintiff, and defendant excepts. Sustained, and verdict set aside.

While the plaintiff was attempting to pass over a railroad crossing in Manchester with his horse and wagon, his horse became frightened by the lowering of the bars or gates which were used by the defendants to prevent teams from crossing the tracks when locomotives were passing over them. Being unable to manage his horse, he was thrown upon the ground and injured. The tracks at this point were used to a large extent for the purpose of shifting cars. In his closing argument to the jury plaintiff's counsel said: "You have some idea of the regular trains that are passing through the day. You must have in mind that there is business carried on there that, I submit, never ought to be carried on or endured in any community, and it is that use of that crossing as a public highway for shifting purposes. *** I say to you that the man who would start one of those bars when a team was on the track, as Roby did, by his own admission-the corporation that would tolerate for all this time such practice as that deserves your admonition in some fo form or other. I say it is one of those palpable, manifest, wicked performances that I should not suppose intelligent men would tolerate at all." To these remarks the defendants excepted.

Burnham, Brown & Warren, for plaintiff. Frank S. Streeter and Joseph W. Fellows, for defendant.

PER CURIAM.1 The plaintiff's counsel stated, in effect, that the defendants had tolerated a dangerous practice of lowering the gates at the crossing "for all this time,"-meaning apparently for a long time. The jury were told, not merely that this dangerous act occurred at the time of the accident, of which there was competent evidence, but that such acts were of frequent occurrence when teams were upon the crossing, of which there was no comThe statement was testipetent evidence. mony given by counsel,-an unsworn witness,

1 See footnote, 36 Atl. 607.

not subject to the test of cross-examination. It was testimony upon a material point, the natural effect of which was prejudicial to the defendants. In the absence of a finding that it did not have that effect, the necessary conclusion is that the trial was not a fair one, and that the error can only be corrected by a new trial. Bullard v. Railroad Co., 64 N. H. 27, 5 Atl. 838; Jordon v. Wallace, 67 N. H. 175, 32 Atl. 174; Noble v. City of Portsmouth, 67 N. H. 183, 30 Atl. 419. The claim of the plaintiff that in the statement objected to counsel referred to the shifting of cars over the crossing, and not to the lowering of the gates, is not sustained by a reasonable construction of the language used. It occurs in the part of the argument relating to the method of operating the gates at the time of the accident, and no reason is suggested why the jury should have understood that it referred to another subject previously discussed. If such was the intention of counsel, he failed to convey the idea to the jury. Verdict set aside.

SMITH, CHASE, and WALLACE, JJ., did not sit. The others concurred.

DAVIS v. WHITNEY et al. (Supreme Court of New Hampshire. Cheshire. July 27, 1894.)

NUISANCE-REASONABLE USE OF PREMISES—

LIABILITY.

Defendants owned and operated a shoddy mill situated 68 feet from plaintiff's dwelling house, and equipped with machinery indispensable to the business. When the wind was in a certain direction, lint, dust, and smoke of a sickening odor obliged plaintiff to close the doors and windows on that side of her house, and on two or three occasions she had to leave the house for several weeks, because chronic diseases from which she suffered were made worse by the materials and odors from the mill. The use made by defendants of the premises was reasonable. Held, that plaintiff could not recover damages.

Action by Melissa D. Davis against Charles O. Whitney and another for maintaining a private nuisance. Facts were found by a referee. Judgment for defendants.

Case for maintaining a private nuisance. Facts found by a referee. The defendants owned and operated a shoddy mill, situated 86 feet from the plaintiff's dwelling house, and equipped with machinery indispensable to the business, and similar to that used in other shoddy mills. When the wind was in the right direction, lint, dust, and smoke-the latter of a sickening odor-were driven towards the plaintiff's house, obliging her to close the doors and windows on that side. On two or three occasions she had to absent herself from the house for several weeks, because chronic diseases from which she suffered were made worse by the objectionable materials and odors. The defendants have not intended to injure her, and have tried to construct their

plant so that she would not be annoyed. The use they made of their premises was found to be reasonable. to be reasonable. The plaintiff's damages were assessed at $300. Both parties moved for judgment on the report.

Don H. Woodward and Charles H. Hersey, for plaintiff. Batchelder & Faulkner, for defendants.

SMITH, J. The referee has found that the use made by the defendants of their premises was reasonable. According to the decisions in this state, the defendants are entitled to judgment. Bassett v. Manufacturing Co., 43 N. H. 569; Hayes v. Waldron, 44 N. H. 580; Swett v. Cutts, 50 N. H. 439; Eaton v. Railroad Co., 51 N. H. 504, 533; Brown v. Collins, 53 N. H. 442; Haley v. Colcord, 59 N. H. 7; Green v. Gilbert, 60 N. H. 144; Rindge v. Sargent, 64 N. H. 294, 9 Atl. 723. Judgment for the defendants. All concurred.

TOWN OF UNITY v. PIKE. (Supreme Court of New Hampshire. Sullivan. July 27, 1894.)

STATUTES-REPEAL BY IMPLICATION-DOGSINJURY TO SHEEP-LIABILITY OF OWNER OF DOG.

1. Where a statute is modified by a subsequent act of the legislature, and some parts of the first act are incorporated in and others omitted from the later, failure to incorporate a provision of the former or its substance does not operate as a repeal of the omitted part of the former, where the later act is not inconsistent with it.

2. Under Pub. St. c. 118, §§ 9-13, which provide that a town may pay the owner of sheep for loss occasioned by reason of the worrying or killing of them by dogs, and recover the amount so paid in an action of assumpsit against the owner of the dogs, in an action by the town to recover money paid to one for loss and injury to his own sheep, as well as those of others which he was pasturing, the town cannot recover more than the actual loss occasioned to the party to whom the money was paid, unless the others are joined as parties to the action or are compelled to file releases, or it is shown that they authorized the town to pay damages to the party pasturing their sheep.

Action of assumpsit by the town of Unity against Eugene B. Pike. Judgment for plaintiff.

Assumpsit for the sum paid by the plaintiff to Rowe for damage done to sheep by dogs. Facts found by the court. In October, 1892, the defendant's dog and another dog killed in Rowe's pasture four sheep, and badly injured six others. Rowe owned three of the sheep that were killed and three of those that were injured; the others he pastured for hire. Upon proceedings under the statute, the town paid Rowe $30 for the entire damage. The court found that the damage done to Rowe's sheep was $18, to the other sheep $10, and that $2 was fair compensation for the time necessarily spent by Rowe by reason of the injury.

Albert S. Wait, for plaintiff. George R. Brown, for defendant.

PER CURIAM.1 It is provided in section 9, c. 118, Pub. St., that any person who suffers damage occasioned by a dog may recover the same of the owner or keeper of the dog, unless the plaintiff was engaged in the commission of a trespass or other tort at the time of the injury; section 10 provides that he may recover of the owner or keeper of the dog double the amount of the damage sustained; and section 11 authorizes the town, upon proper proceedings, to pay him the damages caused "by reason of the worrying, maiming, or killing of his sheep, lambs, or other domestic animals by a dog." Section 13 is as follows: "After the selectmen have given an order for such damage to the person injured, the town may recover the amount of such order in an action of assumpsit against the keeper or owner of any dog concerned in doing the damage or occasioning the loss." In East Kingston v. Towle, 48 N. H. 57, it was held that a similar statute was unconstitutional, because it deprived the owner of the dog of an opportunity to be heard on the question of damages; but it was also held that a town might maintain an action under this statute against the owner of a dog to recover the actual damage, to be ascertained at the trial. By sections 14-17, c. 60, Laws 1891, some of the provisions of chapter 118, Pub. St., are modified, but the changes introduced are not material to the present inquiry. Section 13 of the former statute is not in terms qualified or changed by the later act, and the omission to incorporate it, or the substance of it, in the statute of 1891, does not prove that the legislature intended to repeal it. The language used does not require such a construction, and it is not to be assumed that the legislature intended to deprive towns of the right to recover of the owners of dogs the amount of the actual damages they may be compelled to pay on account of the ravages of those animals. Nor is there any inconsistency between section 13 and the provisions of the new act. The plaintiff town, therefore, is entitled to maintain this action for the damages actually suffered by Rowe, which include the value of his sheep that were killed, the depreciation in value of those that were injured, and reasonable compensation for the time he necessarily spent in consequence of the injury.

Whether the town is also entitled to judgment for the damage to the sheep Rowe was pasturing for others it is not necessary to decide at this time. If the owners had authorized the town to pay the money due them to Rowe, the defendant could have no ground to object to the right of the town to recover it back in this case, and the town would be fully protected against further actions against it by the owners. In a common-law action, brought by Rowe against this defendant for 1 See footnote, 36 Atl. 607.

damage done to the sheep of other persons, Rowe might be required to join them as parties for the purpose of terminating the entire controversy. Buckminster v. Wright, 59 N. H. 153; Boudreau v. Eastman, Id. 467; Cole v. Gilford, 63 N. H. 60. For similar reasons justice may require, in this case, a joinder of all parties in interest for the protection of all against further litigation; or the same purpose may be accomplished by the filing of a release signed by such interested persons as are not parties to the action. When this is done, there will be judgment against the defendant for $30.

CARPENTER, J., did not sit. The others

concurred.

DROWN V. HAMILTON et al. (Supreme Court of New Hampshire. Carroll. July 27, 1894.)

REVIEW OF FINDINGS OF FACT-SUBMISSION TO REFERENCE-DEFINITENESS OF REFEREE'S REPORT-TIME OF FILING ORIGINAL AND SUPPLEMENTAL REPORTS-TIME OF REQUEST FOR SPECIAL FINDINGS-WAIVER OF OBJECTION BY FAILURE TO EXCEPT-BINDING FORCE OF REFEREE'S DECISION-QUESTIONS OF FACT-ACTION OF, COURT IN PASSING ON REFEREE'S REPORT-BURDEN OF PROOF NOTICE OF INTENTION TO ATTACK REFEREE'S REPORT.

1. Where the objections to the report of a referee involve questions of fact, and are disposed of by the court at the trial term, the findings cannot be reviewed on appeal.

2. Where plaintiff and defendant have submitted to a referee the question whether a certain lot was owned by both or one or neither of them, and the question of the nature of their interests, the submission is binding on the defendant.

3. Where the plaintiff's attorney was prevented by order of the court from commenting on certain evidence introduced by defendant, defendant cannot complain.

4. A referee's report, establishing a line, commencing at the stump of a spruce tree cut, during the trial, on the line between E. and C., and running N., 772 deg. W., at a right angle with the town line, to a pond, is sufficiently distinct, certain, and complete, as regards such line.

5. Where a referee files his report with the clerk of the court within 30 days, such filing is a compliance with the order of the court to report within that time.

6. A supplemental report of a referee, based upon the conduct of the defendants on the trial, cannot be objected to because not made within the 30 days prescribed for the original report.

7. A request for special findings of fact is not seasonably made, when it is sent to the referee two days after he files his report.

8. Where defendants fail to except to the ruling of the referee excluding documentary evidence, they waive their right to object to his report on that account.

9. Where parties have submitted the location of a boundary line to a referee, and judgment has been rendered on his report, the line established becomes binding upon the parties and all who claim under them.

10. Objections to a referee's report on the ground that damages given are excessive, and that the report is generally against the law and evidence, raise questions of fact, to be determined by the trial court.

11. Where the trial court passes upon questions of fact in a referee's report, it does not act as in a case tried on appeal, but simply inquires whether the conflict between the report and the