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the gristmill was not a party to the proceed Atl. 1024, is sustained. As the relative right ings in which the order now objected to was between the leather board mill and sawmill made, and as it has since been determined is determined to be in the ratio of 17 to 38, that the gristmill has the right to require all it is immaterial to the plaintiff Hutchins the mills to shut down when the water falls whether the amount taken as the measure six inches below the top of the wasteway of the rights of the two-17 plus 38 cubic (Ilutchins v. Berry, 73 N. H. 603, 611, 613, feet-is excessive as against the right of the 61 Atl. 554, 63 Atl. 787), the order does not Horne privilege. affect the gristmill, and there is no occasion Whether justice required that the plainto modify ít for the protection of the grist titr should be permitted to amend his peti. mill right. In a brief filed since the hearing tion, so as to present for adjudication his the plaintiff objects to this modification as an right to use the water for the gristmill for invasion of his right as the owner of the other purposes, is a question of fact. The leather board mill, heretofore called the "box denial of the motion presents no question of factory privilege."
law. Horne v. Hutchins, 72 N. H. 77, 54 Atl. It was said in Hutchins v. Berry, 73 N. 1024, was a bill in equity to determine to H. 603, 604, 61 Atl. 554, a bill in equity what extent and in what manner water was brought by the plaintifr to determine the actually used at the box factory October 26, gristmill right, that, “in the absence of a 1872, such use having been held to be the definite specification of the amount of water measure of the box factory right. Horne v. excepted or the manner of its application to Hutchins, 71 N. H. 128, 137, 51 Atl. 651. In produce power, it must be understood the the former case it was found that, as between parties contracted with reference to the manthe sawmill and the box factory, there was ner and extent the water was then at the no preference; that the water wheel in the date of the deed actually used for the pur. sawmill could use 33 cubic feet of water and pose specified.” It appears to be well settled the penstock of the box factory could deliver that, when a right exists to use a certain 17 cubic feet of water per second when the quantity of water, a change in the mode and water in the pond stood at the level of the objects of the use without increasing the wasteway. The amount to which the Horne quantity is no violation of the right. Fuller privilege was entitled having been determin v. Daniels, 63 N. H. 395; Dow v. Edes, 59 ed in another case to be 13 cubic feet per N. H. 193, 194; Wiggin v. Wiggin, 43 N. H. second, it was ordered that the gates to 561, 566, 80 Am. Dec. 192; Whittier v. Comthe respective penstocks be set so as to per pany, 9 N. H. 454, 458, 32 Am. Dec. 382; mit only 13, 17, and 38 cubic feet, respective Johnson v. Rand, 6 N. H. 22. The sole quesly, to be drawn when the water stood at the tion, then, is whether by the reservation in top of the dam and did not run over the the Colby deed the parties understood the wasteway. Both parties excepted to these matter reserved was merely a right to operate findings, orders, and decrees.
a gristmill, and not the right to use a certain tions were overruled. The decrees therefore part of the water for power. It was said in are judgments establishing the rights of the Fowler v. Kent, 71 N. H. 388, 394, 52 Atl. 554, parties. The order of December 14, 1903, that "it would require very explicit language removing the limitation upon the use by the to overcome the natural inference that a perBerry privilege until the water fell 18 inches son would not accept a deed of a mill privibelow the top of the wasteway, also provided lege subject to the condition that his water that the stops on the Hutchins wheel or gate rights should become forfeited if any change should remain as before. The occasion for was made in the manner, purpose, or place this modification does not appear. As there of use." But, whether the question is simple was no preference between the sawmill and or difficult, the interpretation of the Colby box factory, the plaintiff cannot complain deed is not now before the court. The su. in behalf of his leather board mill that the perior court has ruled that the defendants sawmill is permitted to draw down the wa ought not now to be compelled to litigate the ter in the pond; but if, as seems to be the question. This court cannot assume that effect of the existing order, the sawmill is there may not be some evidence which the permitted to draw down the water below parties can present which will aid the interthe top of the wasteway without limitation pretation. Neither can they assume that all as to the amount, while the plaintiff's gate is the facts bearing upon the question have set so as to draw only 17 feet when the wa been presented in the numerous cases beter is at the top of the wasteway, it is mani. tween the present and other parties, involv. fest that the plaintiff will as the water falls ing this water power, that have been before receive less than the 17 feet to which its has the court. If that fact could properly be asbeen adjudged he is entitled, and that the sumed, the court would not take the time to sawmill will receive more. In the absence search the voluminous record in these cases, of any findings sustaining the change ordered which presents many other questions, for December 14, 1903, the same appears to be facts that may be material upon this. If the erroneous, and the exception to the refusal question is to be intelligently considered, it to change the same to accord with the judg. should be presented upon a record which conment in Horne v. Hutchins, 72 N. H. 77, 54 tains in itself all the facts which either party
conceives to be material. The evidence as to chester, Smith said that Mellows' was authe modification of the original order regulat thorized to hire him. The executrix did not ing the flow of water to the Berry privilege elect to testify. The plaintiff's testimony was should have been received ; and, unless facts excluded, subject to exception. appear authorizing a change, the original
David W. Perkins, for plaintiff. Irving T. order should be restored.
George and Burnham, Brown, Jones & WarCase discharged.
ren, for defendant. YOUNG, J., did not sit. The others con PARSONS, C. J. As the executrix did not curred.
elect to testify, the plaintiff was properly escluded as a witness to all facts occurring
in the lifetime of the deceased as to which (74 N. H. 238)
the deceased could have testified if living. GILES v. SMITH.
Pub. St. 1901, c. 224, $$ 16, 17; Parsons v. (Supreme Court of New Hampshire. Hills borough. May 7, 1907.)
Wentworth, 73 N. H. 122, 59 Atl. 623; PerWITNESSES COMPETENCY
kins v. Perkins, 68 N. H. 264, 38 Atl. 1049. WITH DECEDENT.
Under the settled construction of the statute, Under Pub. St. 1901, c. 224, 88 16, 17, pro the plaintiff could not testify to what Smith hibiting the adverse party to an action against
did or told him; nor to the contents of the an executor from testifying to facts occurring in
letters, if Smith had seen them, and therethe lifetime of deceased, unless the executor elects so to testify, or unless it clearly ap fore could have testified to their contents. pears that injustice may be done without such
Welch v. Adams, 63 N. H. 344, 351, 1 Atl. testimony, plaintiff in an action for breach of
1, 56 Am. Rep. 521. The plaintiff's testicontract of defendant's testate to employ plaintiff for a year, defendant not electing to testify, mony was not competent unless the contrary is barred from testifying, not only as to what appeared. Harvey v. Hilliard, 47 N. H. 551; deceased did or told plaintiff, but as to the con
Fosgate v. Thompson, 54 N. H. 455; Parsons tents of plaintiff's letters in reply to letters of
v. Wentworth, supra. an employé of deceased asking plaintiff to take a position with deceased, unless it be shown Exception overruled. All concurred. that deceased bad not seen the letters, and therefore could not have testified in respect to them. (Ed. Note.-For cases in point, see Cent. Dig.
(74 N. H. 252) vol. 50, Witnesses, 88 663-682.)
PAGE V. HAZELTON. Transferred from Superior Court, Hills- (Supreme Court of New Hampshire. Grafton. borough County; Peaslee, Judge.
May 7, 1907.) Assumpsit by Nelson A. Giles against
1. EVIDENCE-Books OF ACCOUNT_ADMISSI
BILITY. Alice G. Smith, executrix of Charles G.
The entries of a testator's cash book, exSmith, deceased, for a breach of a contract ceeding $6.67, are not admissible as items of of deceased to employ plaintiff for a year on
book charge in favor of his executor. the Manchester News. Plaintiff excepted to (Ed. Note.-For cases in point, see Cent. Dig. exclusion of testimony. Exception overruled.
vol. 20, Evidence, g 1451.]
2. SAME. There was evidence tending to prove the 2
Where, in a suit to establish a claim following facts: At about the time Smith against a decedent, the claimant put in evidence came into possession of the newspaper, he
decedent's books of account, and claimed that
specified entries therein proved a debt due from asked for the plaintiff's address, so that Mel
decedent at his death, other entries rebutting lows, the managing editor, might write to the inference of the existence of the debt and him, with a view of employing him to take showing that the transaction was a payment on charge of the circulation department. The
account were competent.
(Ed. Note.-For cases in point, see Cent. Dig. address was found, the plaintiff came to the
vol. 20, Evidence, $8 453, 1480.] News office and took charge of the circulation
3. APPEAL_ADMISSION OF EVIDENCE-PREJ. department, his name was placed upon the
UDICIAL ERROR. payroll at $18 per week, and he was paid Where the inference of a debt due from a off with the other persons employed upon the decedent to a claimant could not be drawn from paper. On one occasion when Smith was
entries in decedent's books of account offered
in evidence by claimant in his suit to establish paying off the employés he said to the plain
the claim, the admission in evidence of other tiff: "Your case is the worst of the lot. I entries to rebut that inference was not prejudiwill try and see that you do not lose anything
cial. by it.” The plaintiff was permitted to in- 4. EVIDENCE-ADMISSIONS–CONDUCT.
In a suit to establish a claim against the estroduce in evidence letters from Mellows to
tate of a decedent, evidence that at the time him, stating that Smith had bought the News claimant asserted that decedent, then living and and was in want of a circulation manager, solvent, was indebted to him claimant stated to describing the situation, and asking the
a witness that he was unable to pay his note,
which the witness had signed as surety, was adplaintiff to take the place, and a later letter
missible to discredit the claim of indebtedness. saying, "Your terms are accepted." The 5. SAME-REMOTENESS OF RELEVANT TESTI. plaintiff offered to show that Mellows is now MONY. of parts unknown, and then offered himself
It is not error to admit relevent evidence,
though the same might have been properly ex. as a witness to testify to the contents of his
cluded because too remote. letters in reply to those received from Mel
(Ed. Note.-For cases in point, see Cent. Dig. lows, and also that, when he came to Man vol. 20, Evidence, $ 434.]
tor to one Hunt, in which the consideration was stated to be $600. As tending to explain the transaction, the defendant introduced in evidence a bond for a deed of the same premises, given by the testator and the plaintiff to one Andros and assigned to Hunt. It appeared that Hunt made payment to the testator, and that the testator and the plaintiff conveyed for the consideration stated in the bond, which was $600 and interest agreeably to the note of Andros for that sum, payable $50 January 1, 1895, and $100 each year thereafter. The plaintiff excepted to the admission of the bond.
Moodybell S. Bennett and David S. Conant, for plaintiff. Hosford & Wright, for defend
6. EXECUTORS AND ADMINISTRATORS-CLAIMS -ESTABLISHMENT-ACTIONS-EVIDENCE.
In a suit to establish a claim against a decedent, the testimony of a bank cashier as to payments made by decedent to the bank on notes signed by himself and claimant was competent, though whether the payments were available in defense would depend on other evidence. 7. SAME,
Where one seeking to recover from a decedent $600, being the consideration for the sale of real estate by himself and decedent, offered in evidence a deed from himself and decedent to a grantee, in which the consideration was stated to be $600, and claimed that the consideration had been received by decedent, it was competent as explaining the transaction to offer in evidence a bond for a deed given by claimant and decedent to a third person and assigned to the grantee, when, if payments were made according to the terms of the bond, the decedent received the money at an earlier date than the claimant charged him with receiving.
Transferred from Superior Court, Grafton County; Chamberlain, Judge.
Action by Samuel T. Page against George W. Hazelton, executor of Charles G. Smith, deceased, to establish a claim against the deceased. There was a verdict in the superior court for defendant, rendered on appeal from the allowance of the claim by the probate court, and the cause was transferred. Plaintiff's exceptions overruled.
The specification contained items of cand which the plaintiff claimed were for money loaned. The testator's books of account were produced by the executors at the plaintiff's request and were put in evidence by the plaintiff. Some of the items of the specification appeared on the testator's cash book; and the plaintiff claimed that such entries and certain checks introduced in evidence and hearing the testator's indorsement were proof of loans to the testator and of a debt due at his death to the plaintiff. As bearing upon the probability of the items found in the cash book evidencing an indebtedness to the plaintiff, the defendant was permitted to introduce other items in the cash book, each exceeding $6.67, showing an account of long standing between the plaintiff and the testator; and to this ruling the plaintiff excepted. The plaintiff also excepted to testimony of a bank cashier as to payments made by the testator to the bank upon notes signed by himself and the plaintiff. As bearing upon the question of the existence of an indebtedness to the plaintiff from the testator at the time of the latter's death and long before, one Danforth was permitted to testify, subject to the plaintiff's exception, that in 1900 and 1901, and at different times, the plaintiff said he was unable to pay his note which the witness had signed as surety. The statements testified to were made during the lifetime of the testator, and when he had sufficient property to pay all his debts. The plaintiff claimed to recover $600, being the consideration for the sale of real estate known as the "Peaked Mountain farm," with interest from June 27, 1900, and offered in evidence a deed of the premises from himself and the testa
PARSONS, C. J. The entries on the testator's cash book were not admissible as items of book charge in favor of his executor, because they were money items each of which exceeded $6.67. Remick v. Rumery, . 69 N. H. 601, 45 Atl. 574; Bailey v. Harvey, 60 N. H. 152; Rich v. Eldredge, 42 N. H. 153, 158; Bassett v. Spofford, 11 N. H. 167. If the defendant could have made all the contents of the books evidence by attaching such a condition to the plaintiff's examination of them (Wentworth v. McDuffie, 48 N. II. 402; Huckins v. Insurance Co., 31 N. H. 238), no such condition was imposed. The items offered, therefore, were not admissible as direct evidence in behalf of the defendant. But they were not so offered or admitted. They were admitted merely as bearing upon the probability of the inference sought to be drawn by the plaintiff from the items which he put in from the book. It is to be presumed the items of cash claimed in the plaintiff's specification and found on the deceased's cash book represent money delivered by the
If from those items it could be inferred the money delivered was a loan, other entries in the same account, rebutting that inference and tending to show the transaction was a payment on account, were competent. The entries made by Smith and offered by the plaintiff were admissible as the statement of a party. Proof by one party of a statement made by the other entitles the latter to give in evidence any part of the statement which has not been already offered, which tends to qualify, limit, or explain that portion of the statement already in proof. Wentworth v. McDuffie, 48 N. H. 402; Whitman v. Morey. 63 N. H. 448, 2 Atl. 899; State v. Saidell, 70 N. H. 174, 46 Atl. 1083, 85 Am. St. Rep. 627. This principle applies to a statement made by a party in his books of account. 3 Wig. Ev. § 2116; Dewey v. Hotchkiss, 30 N. Y. 497, 502; Low v. Payne, 4 N. Y. 247. The entries put in by the plaintiff are not described. The precise relation between them and the entries offered by the defendant do not appear. The case, therefore, affords no opportunity for a discussion of the limita.
tions, if any, upon the right of a party to the V. Slicer, 35 Vt. 40, 43. Such failure to act use of his books of account after they have may constitute "an admission by conduct" been adopted as proof by his opponent. It adverse to the present claim. 1 Wig. Ev. 88 does not appear that the books were used as 267 (b), 284. As the evidence was relevant, evidence for any purpose except to rebut the its admission was not error of law, even if it inference sought to be drawn by the plaintiff might properly have been excluded as too from the items selected by him; and, as the remote. Pritchard v. Austin, 69 N. H. 367, case is drawn, it must be assumed that the 369, 46 Atl. 188. items relied on by the defendant legitimately The testimony of the bank cashier to the tended to rebut such inference. But, as the payment of money by Smith upon an obligaonly use claimed for the books by the defend. tion of Smith and Page was competent. ant was to rebut the inference sought to be Whether the payment was available in dedrawn by the plaintiff, it is immaterial fense would depend upon other evidence. whether the items relied on by the defend The bond for the deed of the land conveyed ant had such tendency, or whether they were by deed by Smith and Page was a part of competent for that purpose or not. “The de. the transaction opened by the plaintiff by the livery of money without other evidence of introduction of the deed and his claim to the the contract between the parties raises no consideration received by Smith. It was a presumption of law that it was intended to statement under the band and seal of the be a loan, rather than the payment of a debt plaintiff. No objection to its competency apor a gift.” Coburn v. Storer, 67 N. H. 86, pears, nor is it perceived in what way its ad87, 36 Atl. 607; Fall v. Haines, 65 N. H. mission could have prejudiced the plaintiff. 118, 23 Atl. 79. As the inference sought to If payment was made according to the terms be drawn from the admission of the receipt of of the bond, Smith received the money at an money, contained in the books of the deceas earlier date than the plaintiff has charged ed, could not properly be drawn, it is imma him with it. At the most, the bond, if im. terial whether the evidence admitted solely material, was not prejudicial. to rebut that inference was competent or not. Exceptions overruled. Since the only effect the evidence adopted could have had was to defeat an inference YOUNG, J., not having been present at the which could not have been drawn if the evi. argument, took no part in the decision. The dence had been excluded, the plaintiff could others concurred. not have been harmed by its admission.
Subject to exception, the defendant was permitted to prove that at the time when the
(75 N. J. L. 64) plaintiff claimed the deceased, then living In re ELECTION OF DIRECTORS OF and solvent, was indebted to him in a large BROOKLYN BASEBALL CLUB. sum, the plaintiff told a witness that he was
(Supreme Court of New Jersey. June 10, unable to pay a note on which the plaintiff
1907.) was principal and the witness surety. “Evidence is any matter of fact, the effect, ten
ELECTION. dency, or design of which is to produce in It requires a willful refusal to file the rethe mind a persuasion, affirmative or disaf port of the election of directors within 30 days firmative, of the existence of some other mat
after any annual election to make the directors
so failing to file the same ineligible to re-electer of fact." Cook v. New Durham, 64 Y. H.
tion at the next succeeding annual meeting. 419, 420, 13 Atl. 650; Cole v. Boardman, 63
(Syllabus by the Court.) N. H. 580, 581, 4 Atl. 572; Cohn v. Saidel, 71 N. H. 558, 568, 53 Atl. 800; 1 Wig. Ev. :?8.
Petition to establish the election of the Evidence having any tendency, however
petitioners as directors of the Brooklyn Baseslight, to prove a particular fact, is compe
ball Club. Petition dismissed. tent to be submitted to the jury to show that
Argued February term, 1907, before FORT, fact. Curtis v. Car Works, 73 N. H. 516, 63
HENDRICKSON, and PITNEY, JJ. Atl. 400; Eaton v. Welton, 32 N. H. 352. Northrop & Griffiths, for the petitioners. The evidence objected to tended to show that Vredenburgh & Wall, for the respondents. the plaintiff was in need of money at a time when, according to his present claim, the de. FORT, J. We think the prayer of the peticeased. Smith, had in his possession a con. tioners in this case should be denied. The siderable sum in cash belonging to him. The respondents were elected directors of the plaintiff's failure, in this situation, to de Brooklyn Baseball Club at the annual meet. mand or attempt to collect his debt of a re ing held on November 12, 1906. They responsible debtor for a considerable time, and ceived 1,275 votes and the petitioners receive until after the death of his alleged debtor, ed 209 votes. The capital stock of the comis a circumstance which has some logical pany is divided into 2,500 shares. There are tendency to discredit his present claim. Fail. five directors. The by-laws fix the second ure to make claim when occasion therefore Monday in November as the date for the anexists has some tendency to prove the in nual meeting. The company was organized validity or nonexistence of the claim. Stone December 11, 1899. The only meetings at v. Tupper, 58 Vt. 409, 412, 5 Atl. 387; Strong which directors were elected since the or
ganization were those of February 12, 1902, March 21, 1905, and November 12, 1906. The last stated meeting was the only one at which directors have been elected upon the day fixed by the by-laws of the company. No report of the meeting of March 21, 1905, was made and filed within 30 days after such meeting and election, as required by statute. It appears, however, that the directors ordered such report to be made and directed the secretary to attend to it. The report was drawn by the counsel of the company, and signed by the president and delivered to the secretary to file, but, for some reason, it was never filed. The secretary died July 27, 1905. None of the directors were aware of the fact that the roport had not been filed until October, 1905, whereupon it was immediately done.
The statute relied upon by the petitioners is section 43 of chapter 124, p. 313, of the Laws of 1900, which, in part, reads as follows: "Every domestic corporation and every foreign corporation doing business within the State, shall file in the office of the Secretary of State within thirty days after the first election of directors and officers, and annually thereafter, within thirty days after the time appointed for holding the annual election of directors, a report authenticated by signatures of the president, and one other officer, or by any two directors of the company, stating,
if such report be not so made and filed, all of the directors of any such domestic corporation who shall wilfully refuse to comply with the provisions hereof and who shall be in office during the default sball at the time appointed for the next election, and for a period of one year thereafter, be thereby rendered ineligible for election or appointment to any office in the company as director or otherwise.” P. L. 1900, p. 313.
On the facts in evidence in this case the only question for determination here is one of fact, namely, was the failure to file the report of the election of directors on March 21, 1905, willful refusal to so do on the part of the respondents? We do not think the facts proven justify such an inference.
The petition is dismissed, but without costs.
3. SAME-OFFICIAL ACTS.
The construction of a public sewer by proper municipal authority at the expense of the municipality in a dedicated street connected with the municipality's general system of sewers was an acceptance of the dedication of the street through which the sewer was constructed.
(Ed. Note.-For cases in point, see Cent. Dig. vol. 15, Dedication, $ 75.] 4. SAME.
An agreement by a village with a city granting the latter the right to lay water pipes through certain of the village streets for a valuable consideration, to which was attached & map showing the location and boundaries of a dedicated street included among those in which the pipes were to be laid, was an express recog. nition of the public character of the dedicated street, and sufficient to show an acceptance of the dedication. 5. SAME EFFECT OF STATUTORY REQUIREMENTS ON COMMON-LAW METHODS.
The fact that a village charter prescribes for the acceptance of a dedicated street by an ordinance especially devised, drawn, and adopted does not exclude the common-law methods of acceptance.
(Ed. Note.--For cases in point, see Cent. Dig. vol. 15, Dedication, $ 64.]
Bill for an injunction by Frank Arnold and others against the city of Orange and others. Bill dismissed.
Albert C. Wall and Smith & Dugan, for complainants. William A. Lord, for defendants.
HOWELL, V. O. This suit is brought to restrain the city of Orange from laying water pipes through a strip of land lying in the village of South Orange, called Clark street, the title to a portion of which, to the middle of the strip, is claimed to be owned by the complainants. The water pipes in question are parcel of the water supply sys tem of the city of Orange, but, in order to reach that municipality, it was deemed nec essary to construct the line through the village of South Orange. Permission was granted for this purpose by the village to the city and the work was begun. The permission given by the village to the city included a right to lay the pipe line through the socalled Clark street. The complainants, conceiving that this so-called street was a private roadway, and that the village bad no authority to grant permission to use it for any purpose, bring this suit to restrain the city and its contractor from infringing upon their private rights by the construction aforesaid.
The city claims that Clark street is a pub lic highway, and as such is subject to the legislative permission contained in the stat. utes under which it is laying its pipe line. Indeed, it was admitted on the argument that in 1870, two years before the organization of the present South Orange village government, the land now lying within the boundaries of Clark street was dedicated to public uses as a public highway by an agree ment between Haskell and Page, under whom the complainants derive their title;
(73 N. J. Eq. 280) ARNOLD et al. v. CITY OF ORANGE et al. (Court of Chancery of New Jersey. May 25,
1907.) 1. DEDICATION-NECESSITY FOR ACCEPTANCE.
A mere dedication without acceptance is insufficient to charge the dedicated land with a public use and with public authority.
[Ed. Note.—For cases in point, see Cent. Dig. vol. 15, Dedication, 88 64, 65.] 2. SAME-ACCEPTANCE-ACTS NOT AMOUNTING TO ACCEPTANCE.
The erection of a street light by a private corporation within the limits of a street dedicated to a village, the maintenance of which was paid for by the village, was not sufficient to show an acceptance by the village of the street dedicated.