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that she had no claim thereon, on the faith of which the defendant became the purchaser, and the plaintiff subsequently took a lease of the premises from him: Held, that these circumstances worked a perfect and effectual estoppel in pais, against any claim or title of the plaintiff in hostility to that which the defendant acquired at such sale: Maloney v. Horan, 53 Barb.

EVIDENCE.

Witness-Competency-Admissions.-After the entry of a suit by a minor by her next friend, she died, and her administrator was admitted as the party to prosecute the suit: it was held that the wife of such next friend was a competent witness for the plaintiff: Taylor v. The Grand Trunk Railway, 48 N. H.

Held, also, that it was too late to object to her competency after the direct examination in her deposition had been read, the counsel being aware of her situation at the commencement: Id.

The admission of the representations of a sick person should be confined to such expressions as furnish evidence of the present condition of the patient, excluding carefully everything in the nature of a narrative of what is past: Id.

The statement that a person was lamer in the morning than the day before, is not matter of opinion but a statement of a fact, and not objectionable: Id.

The admissions of the father of the person alleged to be injured, and bringing suit for the injury, made before her death, are not admissible against her administrator, unless it be shown that the father is the real party in interest for whose benefit the suit is prosecuted: Id.

If this be shown the admissions would be competent, although when they were made the father had no interest: Id.

But the mere fact that the estate of the daughter would descend to the father subject to the claims upon it, would not make him the party to the suit, so as to render his admissions competent: Id.

The testimony of a physician that injuries from railroad accidents were more severe than from other causes, though bearing the same external appearance, is admissible, although his knowledge is derived from study alone: Id.

On the cross-examination of a witness offered by the railroad, and who had charge of the section where the alleged injury happened from a defective rail, it is proper to ask him if he was short of iron at the time: Id.

EXECUTION. See Partnership.

Trustee-Process-Practice.-Under the general statutes the answers of the trustees are to be written by the magistrate as in the case of other depositions; and they cannot insist upon the right to retire with their counsel and prepare the answers: Morrison, Adminstrator, v. Annis, 48 N. H.

But the provisions of the general statutes do not apply to pending suits, no intention that they should being expressed; and, therefore, trustees in suits then pending have the right to retire and prepare their answers, with the aid of counsel: Id.

FRAUDS, STATUTE of.

Contract for Labor not within.—If a contract be essentially for the sale of goods, whether they are then manufactured or not, it is within the Statute of Frauds; but where the labor and skill of a workman are of the essence of the contract the statute does not apply, although they are to be expended in the production of goods and chattels, and from the workman's own raw materials: Pitkin et al. v. Noyes, 48 N. H.

The same doctrine will apply to an agreement to raise three acres of potatoes and deliver them to the other party, at a fixed price per bushel; the inquiry being whether it was of the essence of the agreement that the contractor should himself raise the potatoes: Id.

The compromise of doubtful and conflicting claims, understood so to be by the parties, is a good and sufficient consideration to uphold an agreement; although it would be otherwise if the claim was utterly without foundation, and known to be so: Id.

Part-performance-Performance within the Year.-A contract for the sale of 700 cords of wood upon a certain lot of land, at $5 per cord, made on the 1st of January, the vendor to deliver as much thereof as he could that winter, and the balance thereof during the next following winter and year, the buyer to pay for what was delivered at the close of each winter's delivery, is an entire contract of sale of the whole quantity; and a delivery and acceptance of a part the first winter will take the case out of the Statute of Frauds: Gault, Brown & Co. v. Brown et al., 48 N. H.

And it was held, also, that this was not a contract which was not to be performed in one year, within the meaning of that statute: Id.

Authority of Agent.-The Statute of Frauds does not require that the authority of the agent contracting for the sale of lands should be in writing. It may be established by parol, and it will be inferred, where the principal adopts the act of the agent: Pringle v. Spaulding, 53 Barb.

Agreement for Sale of Lands.-By the Statute of Frauds an agreement for the sale of lands, to be valid, must be binding upon all the parties by whom the sale is to be made: Snyder v. Neefus, 53 Barb.

The word "party," in the statute, means all the vendors, when more than one are included in the contract of sale: Id.

Subscription by Agent-His Authority-Where an agreement for the sale of land owned by two persons as tenants in common, is subscribed by a third person as their agent, it must appear that he was duly authorized by both the vendors to sign the contract. If authorized by one only, the agreement is not binding upon either of the parties thereto : Id. To be binding, the contract must be signed by the vendors, all of them, personally, or by an authorized agent, and the contract as it appears on its face must be assented to by the vendee: Id.

HIGHWAY.

Petition to open-Practice.-Where upon a petition to lay out a highway the county commissioners report against it upon the merits, and there is judgment upon the report; it was held, that another peti

tion for the same highway at the expiration of two years ought not to be referred to the county commissioners, if it was made to appear by testimony laid before the court that there was no change of circumstances, but that the case was substantially the same; and that in such case the petition ought to be dismissed: Whitcher et al. v. Town of Landaff, 48 N. H.

Opening of Practice.-Objections to the form of a petition for a new highway must be taken before the reference to the county commissioners, or they will be considered as waived; and this applies to an omission to state when application was made to selectmen: Wensworth v. Town of Farmington, 48 N. H.

Where there was an application for a highway filed with the clerk of the court, and an order of notice issued before January 1st 1868, it will be considered that the proceedings were had and commenced and were pending when the general statutes took effect, and therefore that the proceedings must be governed by the old law: Id.

Accordingly, where the commissioners imposed part of the expense of making the road upon towns out of the county, it was held that the report must be recommitted: Id.

HUSBAND AND WIFE.

Divorce-Support of Child born after Decree.-The husband and wife were divorced by the District Court of Leavenworth county upon her application, and the custody of the three minor children was awarded to her. Two days after the decree a fourth child was born. In an action of debt brought against the father for the entire support and education of all the children by the mother, held that she could not. recover in such action: Harris v. Harris, 5 Kan.

That the only way for relief was by opening the decree as to the children, and making such provision for them as might be just under all the circumstances, or by other proper proceedings under or supplemental to the original decree: Id.

Effect of Wife's joining in Conveyance. The legal effect of a wife's uniting with her husband in a conveyance of his lands is to release her dower. Before admeasurement, she has no interest or estate in the lands, and her deed operates not as a grant, but as an estoppel: Maloney v. Horan, 53 Barb.

When the deed of the husband has been avoided at the suit of creditors, on the ground that it was made with intent to hinder, delay or defraud them, there remains an estate in the fraudulent grantee, which is sufficient to support or feed this estoppel; for the fraudulent deed is good and effectual as between the parties to it. A payment by the fraudulent grantee or grantor to the creditors of their debts, would extinguish the same, and render his title valid: Id.

Merger of Dower.-Where a wife, after having knowingly and designedly participated in her husband's fraud, by joining with him in conveying his land to a third person, for the purpose of defrauding his creditors, takes from such fraudulent grantee a conveyance of the same premises, the court will not help her to undo the consequences of her

acts, one of which was to accept a merger of her dower, in the fee conveyed to her: Maloney v. Horan, 53 Barb.

As a wife cannot be endowed of her own lands, the taking of such a conveyance will destroy the claim, if any, which previously existed: Id.

INFANT.

Disaffirmance of Contract.-An infant may recover for what he has paid or done while an infant in execution of his voidable contract, by restoring what he received under the contract, if it remain in specie, or, if not, by accounting for the value of it: Heath v. Stevens, 48 N. H.

Where an infant received money under his contract, and afterwards while an infant paid money in execution of the contract, in an action to recover back money paid under the contract, it is not necessary that the infant should first repay the money he received under the contract; but he must account for so much towards the sum which he paid in execution of the contract: Id.

Where the consideration of an infant's contract consisted partly of money paid for him, and partly of an undertaking by the defendant involving uncertain risks, if the infant seeks to recover back money paid by him in execution of the contract, it must be left to a jury to determine what, under all the circumstances, it was reasonable the infant should engage to pay; and that sum should be allowed to the defendant against the money paid by the infant in execution of the contract, and the balance, if any, recovered by the plaintiff: Id

LANDLORD AND TENANT.

Lease of Farm Land-Construction.-In a lease of a farm for two years, it was stipulated that for every ton of hay produced and not consumed on the farm, the lessee should leave, or haul on to, and use on the same, one extra half cord of good dressing; and at the expiration should leave on the farm dressing in value equal to what he finds there at the commencement of the lease; and that he shall carry on the farm during the term in a good husbandlike manner, and will not commit strip or waste:

Under this lease it was held that the tenant was to use on the farm, or leave there for use, all the manure made there in the usual course of husbandry, together with what he was to bring on for hay sold off. And that he was not entitled to sell or carry off any of such manure, notwithstanding he might leave at the end of the term as much as he found there: Hill v. De Rochemont, 48 N. H.

Held, also, that the tenant was not at liberty to carry off manure made from eel-grass gathered on the farm, and mixed with manure made by the cattle and pigs on the farm: Id.

LIMITATIONS, STATUTE OF.

Mortgage with Collateral Agreement as to Time of Payment.—A note and mortgage were given on the 22d day of May 1862, due one day after date at the same time, and as part of the agreement of the parties, the obligees in the note gave the obligor an instrument of writing, stipulat

ing that the obligor should have five years' time in which to pay the

note:

Held, that no right of action accrued on the note until the expiration of five years, and consequently the Statute of Limitations did not begin to run till five years had expired: Round v. Donnell & Saxton, 5 Kan. MUNICIPAL CORPORATION. See Constitutional Law.

NEGLIGENCE. See Railroad.

OFFICER. See Assumpsit.

PARTNERSHIP.

Levy by Partnership-Creditor on Land of One Partner.-After the levy of an execution on the land of a partner for a partnership debt has become complete by the lapse of a year from the time of the levy, a creditor of the individual partner cannot defeat the levy for the partnership debt by attaching the same land and levying his execution on it: Bowker v. Smith, 48 N. H.

PROBATE COURT.

Will creating Trust-Jurisdiction over Trustee-Where a will creates a trust and appoints the trustees, the Court of Probate, in which the will was proved, and the estate administered, has not jurisdiction to determine conflicting claims to the trust fund, and compel the trustees to execute the trust according to the intent of the will: Hayes v. Hayes, 48 N. H.

PROMISSORY NOTES.

Waiver of Demand and Notice.-Any act of an endorser of a promissory note calculated to put the holder off his guard, and prevent him from treating the note as he would otherwise have done, is, in judgment of law, a waiver of demand and notice: Sheldon v. Horton, 53 Barb.

Thus, where the holder of a note told the endorser, sixteen days before it fell due, that the maker wanted the note to remain another year, and asked him if he was willing, at the same time taking the note, looking it over, and saying it was a good note: Held, that this excused a demand and notice of non-payment: Id.

RAILROAD.

Negligence-Degree of Care required.-Common carriers of passengers are bound to the exercise of the utmost care and diligence of very cautious persons, and are responsible for any, even the smallest negligence: Taylor v. Grand Trunk Railway, 48 N. H.

The standard of care and diligence required of a railroad in carrying passengers, does not depend upon its pecuniary condition or the amount of its revenues; but it is bound to provide a track, rolling-stock, and all other agencies suited to the nature and extent of the business it assumes to do: ld.

A direction to the jury that a railroad must use such a degree of care

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