reply: "Letter received. No change. Send us check." On the same date the bank also sent Crippen the following letter: "Your letter of 2d inst. received, and contents noted, to which I have replied by wire as follows: 'Letter received. No change. Send us check.'" June 3d, Crippen drew his check on the National State Capitol Bank of Concord for $4,000, and the next day took the same to Boston, to the Bank of Redemption, and delivered it to the cashier, who offered to lend him the money if he had not money to spare. Crippen thereupon gave his promissory note for $4,000, dated June 4th, payable on demand to the Bank of Redemption, and the bank discounted it. Crippen paid it March 17, 1892. July 16th, the Bank of Redemption sent the note for $4,520, maturing June 25th, to Crippen, with a written guaranty similar to that, of June 1st, in the following letter: "Inclosed, I hand you note of Potter, White & Bayley, dated December 22, 1890, payable six months after date, for $4,520, which we hereby sell to you for $4,000. E. A. Presbey, Cashier." Crippen made no reply, except to acknowledge the receipt of the note. July 25th, the bank wrote again, and as follows: "H. J. Crippen, Esq.: Will you kindly send me your check for note of Potter, White & Bayley, sold you 16th inst., say $4,000, and much oblige. E. A. Presbey, Cashier." July 25th, or shortly before, Crippen delivered the note to S., an attorney of Concord, and arranged with him to take the note in Crippen's stead. S. prepared a guaranty for the bank to execute to him instead of Crippen, made his note for $4,000, payable to the bank, and delivered it and the guaranty to Crippen, to be sent to the Bank of Redemption, which Crippen did, in a letter of which the following is a copy: "I have arranged with S. to take the note of Potter, White & Bayley, and inclose a letter from him.

* I spoke to him about this some time ago, but he had been out of town, which caused the delay. I presume it will be as satisfactory to you as if I took it. If not, let me know, and I will cancel the arrangement, and take it myself." This letter was received July 28th, and the bank wrote in reply, on the same day, as follows: "Your letter of the 25th inst. duly received. Inclosed I return the note of S.; also, his letter containing same, received in yours as above. I wired him to-day to take no action unless he has already done so. I do not think that this arrangement will cover the point desired. What we wish to do is to sell the note outright, for cash, and I do not think it will answer to sell it to a lawyer. This is the opinion of our counsel here. I trust that no action has been taken by him. If so, please inform me what the status of the case is, and if a description of the note has been filed, or given to the other side. Will you please confer with him? E. A. Presbey, Cashier." August 1st, Crippen sent

his check for $4,000 to the Bank of Redemption for the note; also, his promissory note for $4,000, to be discounted and placed to the credit of Crippen, Lawrence & Co. The bank received his check in payment of the Potter, White & Bayley note, discounted his note for $4,000, and sent him its written guaranty, the same as that of July 16th, except that it was dated July 30th. June 4th, Crippen commenced a suit on the note for $4,490, and August 8th he commenced a suit on the note for $4,520. In both suits he summoned Nute & Sons as trustees, and attached the property previously attached by Rogers, Wood, Loring & Co., subject to their attachment. Both suits are pending in the supreme court for Merrimack county. Crippen did not consent to the arrangements by which the shoe stock attached was manufactured into shoes, and disposed of by the officer. August 7th, he notified him that he objected to such an arrangement unless his suits should be settled. He has not in any way become a party to the insolvency proceedings. He learned of the failure of Potter, White & Bayley prior to June 1st, and the bank learned of the failure and assignnent May 26th, or on the day following. The plaintiff offers to prove that the transfer of the notes by the Bank of Redemption was an absolute and bona fide sale, giving to him the absolute ownership and control of the same.

Streeter, Walker & Chase, for plaintiff. M. . Dickinson, Jr., and H. R. Bailey, for defendants.

SMITH, J. If the Bank of Redemption had brought a suit in its own name for the collection of the notes transferred nominally to Crippen, the case would present no superi or equity entitling the bank to apropriate the property attached in this state exclusively to its own debt. Equity, as well as comity, would require the application of the property to the payment of all the creditors of the insolvents, under the insolvency laws of the state of the domicile of the bank. Kidder v. Tufts, 48 N. H. 121; Eddy v. Winchester, 60 N. H. 63. The plaintiff offers to prove that the transfer of the notes "was an absolute and bona fide sale of the same, giv ing to him the absolute ownership and control of the same." But it is clear that the finding of such a fact would have to be set aside, as being in direct and irreconcilable conflict with the admitted facts in the case, from which the only conclusion is that the transfer of the notes was a mere cover to enable the bank to gain a preference over other Massachusetts creditors. The plaintiff cites Proctor v. Bank, 152 Mass. 223, 25 N. E. 81, in support of the right to maintain his suits for the collection of the notes. But the reasons which controlled the majority of the court in that case, in refusing to compel a Massachusetts creditor who had obtained an advantage over the other creditors by his

proceedings in another state to restore the property, or its value, to the assignee of a Massachusetts insolvent debtor, do not exist in this case. There is no want of jurisdiction of the property, or of the proper parties; and equity requires that the bank, under cover of suits in the name of a New Hampshire citizen, should not obtain an advantage over the other creditors in Massachusetts. The leave given the plaintiff to defend the Strafford suits should be revoked, -Levy v. Woodcock, 63 N. H. 413; Martin v. Wiggin (N. H.) 29 Atl. 450,-and the temporary injunction dissolved. Bill dismissed.

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

On Rehearing.

"Personal property has no locality, but is subject to the law which governs the person of the owner, except in cases which directly militate against the particular laws of the country in which it happens to be located." Saunders v. Williams, 5 N. H. 213, 214. "The general rule is that a transfer of personal property, which is valid by the law of the owner's domicile, will operate to convey the property wherever it may be situate." Sanderson v. Bradford, 10 N. H. 260, 263. "In the absence of ancillary administration or statutory prohibition, the domiciliary administrator or executor has authority to take possession of and remove the goods or ef fects of the decedent in another jurisdiction, or to collect a debt due from a debtor residing therein, if voluntarily given up or paid, and give a good acquittance and discharge therefor. *** So, too, he may sell and assign stock in a foreign corporation; and the corporation may voluntarily consent to its transfer by accepting the outstanding certificate, and issuing a new one to the purchaser." Luce v. Railroad Co., 63 N. H. 588, 590, 3 Atl. 618. "It has long been the policy of commercial states not to embarrass the free transmission of the title to personal property. And it has been very justly considered as discourteous and illiberal policy in one state to abridge and fetter the operation of foreign contracts within its limits, or to refuse to enforce them by suits maintained in its courts, or to embarrass for eign owners of personal estate within its limits, in the free enjoyment of its beneficial use, or its ready and unrestricted conveyance.

In the law, personalty is generally regarded as having no situs. Its title, mode of transfer, and other incidents connected with its use and transmission, are regulated according to the law of the place of the dom icile of the owner. This is confessedly true in regard to the requisite formalities in the execution of a will of personalty, although essentially departing from the requirements of the law of the state, where such property happens to be situated at the time of the decease of the owner. It is the law of the place of the domicile of the owner which

inust control these incidents, as to the op eration of wills upon personal estate, and also the distribution of intestate estates, according to the general rules of international comity among civilized and commercial states. ***But it is claimed that, in regard to the distribution of one's effects (while living) among his creditors, a different rule, to some extent, has prevailed." Hanford v. Paine, 32 Vt. 442, 452, 454. "It is said that the laws of a state or country do not have any extraterritorial operation suo vigore, but that such operation is only grant ed ex comitate. This is the common language of the opinions, but it is an extremely unsatisfactory ground on which to place a decision, for the fact is that the laws of one state or country are recognized by other states and countries continually, and in many different ways; and in cases in which it is settled on the principles of that branch of jurisprudence known as 'Private International Law,' or the 'Conflict of Laws,' that foreign law should apply, such law is applied as a matter of course by the courts, without the exercise of any vague or irresponsible discretion. * In regard to rights under contracts, the law of the place of the contract governs, although the law of the forum controls in all questions as to the remedy. So, also, it is a settled rule, with regard to succession to personal property by will or intestacy, that the law of the domi cile shall govern, even as to property in a foreign jurisdiction. *** We therefore feel justified in saying that it is not generally a safe reason to assign for the decision of any of these questions that foreign laws. have no extraterritorial operation." 15 Am. Law Rev. 254, 255.

**

A general rule that a transfer of personal property, which is valid by the law of the owner's domicile, will convey the property wherever situate, may clash with a general rule that law has no extraterritorial operation. It seems to be immaterial which is called the rule, and which the exception. The property in controversy in this case should be applied to the payment of debts under the insolvency laws of Massachusetts, unless this disposition of it would infringe the right of a citizen of this state. If the Bank of Redemption had not gone through the form of selling its notes to the plaintiff, and brought suit upon them in this state, and attached the debtors' chattels and land, the land, as well as the chattels, might become assets in the hands of the Massachusetts assignees, notwithstanding the attachment; and, as between the bank and the assignees, the justice of the case and the law of this state would require such procedure as would enable the assignees to apply the attached property to the payment of debts under the law of Massachusetts. Eddy v. Winchester, 60 N. H. 63, 64. Our law does not unneces sarily allow its process to be used by a Massachusetts creditor to avoid the just op

eration of the insolvency law of that state. The view of the agreed facts most favorable to the plaintiff is that the transaction between him and the bank is what it appears to be on the face of the writings. Upon that view, the plaintiff will make a profit of about $1,000, if he prevails in this suit, and will lose nothing if he fails. If he prevails, the bank will get or keep $8,000, less expenses of suits, which it is to pay in any event. The guaranty given him by the bank makes the bank the principal plaintiff in interest. The practical effect of the whole transaction is the use of the plaintiff's name in New Hampshire litigation, instituted and carried on in behalf of the bank, and at its expense, to enable it to defeat the just law of its own state. If the bank succeeds in this enterprise, it pays him a commission of about $1,000. If it does not succeed, it pays him nothing. The speculative interest which this arrangement gives him does not entitle him to set up a New Hampshire right as a cover under which a Massachusetts creditor can avoid the Massachusetts law. In some sense, and for some purposes, he could be regarded as the owner of the notes. But he is not the owner in any equitable sense that would give him a position superior to that of the bank in an effort to prevent the application of the attached property to the payment of debts under the law of Massachusetts. The equity of the case is with the assignees. If they had taken and held possession of the goods, their title would have been upheld against the plaintiff. The attachment made by the defendants Rogers, Wood, Loring & Co. was not necessary for the protection of the assignees' rights against the suits brought by the plaintiff chiefly for the benefit of a Massachusetts creditor, and for his own benefit, merely as a claimant of a bonus to be paid by the Massachusetts creditor for the use of his name in litigation. The plaintiff's leave to appear in the suit brought by the defendants in Strafford county will be revoked at the next trial term in September. To prevent delay that might be caused at that term from the pendency of this action in this county, the decree dissolving the injunction and dismissing the bill is rendered at the present law term. Bill dismissed.

2. An infant is not liable for injury to property in his possession under contract of sale if it is caused solely by his ignorance or want of skill.

3. By bringing an action to recover the purchase money, an infant elects to rescind the contract under which it was paid.

4. It is no defense to an action by an infant to recover money paid under a contract of sale that the vendors were ignorant of his infancy.

Assumpsit by Timothy Stack against Cavanaugh Bros. to recover money paid in the purchase of a horse. Judgment for plaintiff.

At an auction sale of horses by the defendants October 12, 1886, the plaintiff bid off a. horse at the price of $112.50, which was delivered to him on payment of $25, and upon the understanding that the balance of the price was to be secured by note and a mortgage upon the horse. The plaintiff took the horse away, and, upon harnessing him to a wagon, found that he was unable to drive him. The plaintiff took the horse back to the defendants' stable that night, told them the horse would not go, and asked them to refund the $25. The defendants declined to pay back the money, but offered to exchange horses with the plaintiff; and another horse, which they bought in the west, had had but a few days, and had driven two or threetimes, was harnessed, and the plaintiff rode after him, but concluded not to take him.. The plaintiff left the horse at the defend. ants' stable, and requested them to do the best they could with him. Upon harnessing the horse the next morning, he was found to be contrary and unmanageable, and some time afterwards he was sent to Boston and sold, and the defendants received $70 for him, after deducting expenses. The horse was six years old, and had been broken to travel with another horse, but had been driven to a single carriage only once or twice before the day of the sale. A person accustomed to handle horses could drive him. The plaintiff had no experience in driving or handling horses, and was unable to drive or manage him. The horse was fretted and worried, and made balky and unmanageable by the plaintiff's unskillful management in attempting to drive him, and was depreciated in value thereby to an amount exceeding the sum paid by the plaintiff to the defendants. The plaintiff had the horse in his possession four or five hours. The plaintiff was a mi nor when he bought the horse and when this suit was commenced. He never told the defendants that he was an infant, and they did not know, and had no reason to suppose, that such was the fact until the plaintiff's mother informed them, and requested them to pay back the $25, six or eight months after the transaction. The contract for the purchase of the horse was not a contract for necessa ries, nor did the plaintiff derive any benefit from it.

Burnham, Brown & Warren, for plaintiff. O. E. Branch & J. F. Briggs, for defendants.

ALLEN, J. It is the settled law of this state that an infant may avoid his contract of sale by rescinding the contract and restoring the property to the vendor. If he does so, he may recover the price paid by him for the property. Heath v. Stevens, 48 N. H. 251. If he does not restore the goods, and has not paid for them, he is liable in a suit by the vendor for so much of the price as is equal to the benefit derived from the purchase. Hall v. Butterfield, 59 N. H. 354; Bartlett v. Bailey. Id. 408. In this case the plaintiff returned the horse to the defendants, reduced in value by the plaintiff's inexperience and want of skill in driving. Though returned on the same day, and within a few hours, of the purchase, it was not the same horse in character and value. But the acts of the plaintiff in dealing with the horse were the result of ignorance and want of skill in the management of horses, rather than of willful abuse. Being an infant under full age, the same conduct towards a horse bailed to him for hire would have given the owner no ground for recovery. Eaton v. Hill, 50 N. H. 235. It is only for positively tortious acts willfully committed that an infant is liable in an action of trespass or case. If the management and driving of the horse by the plaintiff in this case were not of such a character as to give the defendants a right of action had the plaintiff hired the horse, they cannot make the fact of injury from the same treatment by him as owner of the horse a ground for recoupment of damages. To give them this right the claim must rest upon a basis which would enable them to recover for an injury to their own property, and this they cannot do in a case of this kind against an infant. The plaintiff's incapacity of infancy was known to the defendants before the suit was brought, and his treatment of the horse was not malicious nor willful abuse. Upon the facts stated the defendants have no defense. Judgment for the plaintiff.

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

On Rehearing.

SMITH, J. The former decision in this case, it is claimed, was based upon the erroneous assumption of fact that the plaintiff had rescinded the contract, when in fact he only proposed to rescind, and, instead of rescinding, ratified the contract by leaving the horse with the defendants to be sold. It is further claimed that when repayment of the purchase money was requested, rescission had become impossible, because, the horse having been sold on the plaintiff's account, the property could not be returned in specie. Whether what took place when the plaintiff returned the horse was a rescission, a proposition for a rescission, or a ratification of the contract of purchase, it is not necessary to consider. The plaintiff's right of rescission remained during his minority, and was not

defeated by the defendants' refusal to refund the purchase money, nor by his request to them to do the best they could with the property. The contract and subsequent alleged ratification were voidable at his election, and were repudiated when he brought this suit. The bringing of the suit was an election to rescind. Eaton v. Hill, 50 N. H. 235, 241. The fact that the horse had been injured by the plaintiff's unskillful driving did not, as shown in the former opinion, deprive the plaintiff of his right to return it. He derived no benefit from the contract. It was not necessary to renew his offer to return the property. It went into the defendants' possession when the plaintiff first attempted to rescind, and was sold by them. The money received by them from the sale stood in place of the horse. The presumption is that they acted in good faith in the sale, and got the most they could for the property. If they did not, they are in no position to complain. If the plaintiff's mother was acting in his behalf when she requested the return of the purchase money, what was then done was equivalent to a rescission, and the result is the same. The defendants are not, as contended, entitled to judgment upon the ground that they had no reason to suppose the plaintiff was an infant. He did not affirm himself to be of full age, and there is nothing in the case that shows that at the time he made the purchase he intended to elude the contract. The case in this respect differs from Fitts v. Hall, 9 N. H. 441 (see page 449). Judgment for the plaintiff.

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

HOWES v. FISKE et al. (Supreme Court of New Hampshire. Coos. July 29, 1892.)

ACTION AGAINST PARTNERS-ESTOPPEL TO DENY PARTNERSHIP.

One associated with a contractor in the performance of the work, after execution of the contract, is not estopped, in an action against them for its breach, to deny that he is a partner with the contractor.

Exceptions from Coos county.

Action by George R. Howes against E. P. Fiske and Charles Hanson. There was a judgment for plaintiff on a referee's report, and defendant Hanson excepted. Exception sustained.

The following facts were found by a ref eree. About three weeks after the execution of the contract, the defendant Hanson went to the plaintiff, and objected to that part of the contract which postponed payment of one-half the price for hauling until April. Thereupon the plaintiff and both defendants went together to one McNally, who held the written contract, and it was read to them.

McNally assured Hanson that the company would hold the last half of the price for hauling, and would see it paid. Hanson expressed himself satisfied, and began hauling the wood with Fiske under the contract. They subsequently abandoned the job without sufficient cause. The plaintiff understood that Fiske and Hanson began work as partners, and reasonably understood that they were jointly interested in the contract. The referee found that there was no actual partnership between them, and that Hanson was not liable for the breach, unless it should be held, upon the foregoing facts, that he was in law a partner. The contract was not changed, unless, as above stated, by Hanson's commencing to haul the wood.

J. Benton, E. Fletcher, and F. Ladd, for plaintiff. Drew & Jordan and W. P. Buckley, for defendant Hanson.

SMITH, J. The written contract was with Tiske alone. Fiske and Hanson not being partners inter sese, Fiske, in entering into the contract, acted for himself, and not for himself and Hanson jointly. They were not partners as to third persons unless Hanson is estopped to deny that he was a principal. Eastman v. Clark, 53 N. H. 276. But there is nothing to show that the plaintiff was induced to enter into the contract, relying upon Hanson as a principal. It does not appear that he knew Hanson was to be interested with Fiske in drawing the wood until three weeks after the contract was entered into, and then, as the report finds, it "was not -changed, unless, as above stated, by Hanson's commencing to haul the wood." Neither the price, the number of cords, nor the time of payment was changed. As Hanson was not in fact a principal, his interest in the contract must have been that of a subcontractor or employé; and his objection to the provision relating to the final payment for the hauling (made, it would seem, from his uncertainty as to when or by whom he would be paid) was removed by McNally's assurance that the company would withhold one-half the price until the hauling should be completed, and would see it paid. finding of the referee that the plaintiff reasonably understood that they were jointly Interested in the contract means that he might understand they were partners, still, as the terms of the contract entered into three weeks prior to that interview were not changed, it is difficult to see how the defendant is estopped to deny that he was a partner. The finding that the plaintiff reasonably understood that the defendants were jointly interested in the contract relates to the interview between the parties three weeks later. Exception sustained.

If the

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

NUTTER v. TUCKER. (Supreme Court of New Hampshire. Rockingham. July 29, 1892.).

EVIDENCE - DECLARATIONS BY OWNER IN POSSES

SION.

Declarations of a former deceased owner of land in regard to its boundaries, made while in possession, are admissible in favor of those claiming under him. Carpenter, J., dissenting.

Exception from Rockingham county.

Trespass quare clausum by Mary A. Nutter against Charles H. Tucker. There was a verdict for plaintiff, and defendant excepts. Exception overruled.

The plaintiff's close is bounded on the north by South Mill street. The defendant's close adjoins the plaintiff's on the south. The location of the divisional line is in dispute; the defendant claiming it is located about 30 feet south of the street, and the plaintiff that it is located some 13 or 14 feet further south. Thatcher Emery formerly owned both tracts. In 1855, he conveyed the southerly close to one under whom the defendant claims; and in 1871, the northerly close to the plaintiff's husband, her predecessor in title. The plaintiff testified that in 1871, while Emery owned and was in possession of the northerly close, and in the course of the negotiations for the sale, he went upon the land with the plaintiff and her husband, and pointed out to them the boundary which she now claims as her south line as one of the boundaries of the close. Emery died before the trial. To this evidence the defendant excepted. Each party offered evidence that his predecessors in title occupied the disputed tract prior to March, 1871.

C. Page and S. W. Emery, for plaintiff. Frink & Batchelder, for defendant.

SMITH, J. The declaration of Emery as to the location of his southerly line was not rendered inadmissible by the fact that it was a statement such as his interest might induce him to make. The reasons for a contrary holding (Shepherd v. Thompson, 4 N. H. 213; Smith v. Powers, 15 N. H. 546, 563; Morrill v. Foster, 33 N. H. 379, 386) have been removed by the statutory changes in the law of evidence, by which parties and persons interested are no longer excluded as witnesses. The objection of interest is held to go to the weight of the evidence merely, and not to its competency. Lawrence v. Tennant, 64 N. H. 532, 541, 15 Atl. 543. Nor does the fact that the predecessors in title of both parties occupied the disputed tract prior to March, 1871, render the evidence inadmissible. The declarations of a former deceased owner of land, made while in possession, are competent upon the question of its boundaries, in favor as well as against one claiming under him. South Hampton v. Fowler, 54 N. H. 197, 200; Wood v. Fiske,