the gristmill was not a party to the proceedings in which the order now objected to was made, and as it has since been determined that the gristmill has the right to require all the mills to shut down when the water falls six inches below the top of the wasteway (Hutchins v. Berry, 73 N. H. 603, 611, 613, 61 Atl. 554, 63 Atl. 787), the order does not affect the gristmill, and there is no occasion to modify it for the protection of the gristmill right. In a brief filed since the hearing the plaintiff objects to this modification as an invasion of his right as the owner of the leather board mill, heretofore called the "box factory privilege."

Horne v. Hutchins, 72 N. H. 77, 54 Atl. 1024, was a bill in equity to determine to what extent and in what manner water was actually used at the box factory October 26, 1872, such use having been held to be the measure of the box factory right. Horne v. Hutchins, 71 N. H. 128, 137, 51 Atl. 651. In the former case it was found that, as between the sawmill and the box factory, there was no preference; that the water wheel in the sawmill could use 33 cubic feet of water and the penstock of the box factory could deliver 17 cubic feet of water per second when the water in the pond stood at the level of the wasteway. The amount to which the Horne privilege was entitled having been determined in another case to be 13 cubic feet per second, it was ordered that the gates to the respective penstocks be set so as to permit only 13, 17, and 38 cubic feet, respectively, to be drawn when the water stood at the top of the dam and did not run over the wasteway. Both parties excepted to these findings, orders, and decrees. The exceptions were overruled. The decrees therefore are judgments establishing the rights of the parties. The order of December 14, 1903, removing the limitation upon the use by the Berry privilege until the water fell 18 inches below the top of the wasteway, also provided | that the stops on the Hutchins wheel or gate should remain as before. The occasion for this modification does not appear. As there was no preference between the sawmill and box factory, the plaintiff cannot complain in behalf of his leather board mill that the sawmill is permitted to draw down the water in the pond; but if, as seems to be the effect of the existing order, the sawmill is permitted to draw down the water below the top of the wasteway without limitation as to the amount, while the plaintiff's gate is set so as to draw only 17 feet when the water is at the top of the wasteway, it is manifest that the plaintiff will as the water falls receive less than the 17 feet to which its has been adjudged he is entitled, and that the sawmill will receive more. In the absence of any findings sustaining the change ordered December 14, 1903, the same appears to be erroneous, and the exception to the refusal to change the same to accord with the judgment in Horne v. Hutchins, 72 N. H. 77, 54

Atl. 1024, is sustained. As the relative right between the leather board mill and sawmill is determined to be in the ratio of 17 to 38, it is immaterial to the plaintiff Hutchins whether the amount taken as the measure of the rights of the two-17 plus 38 cubic feet-is excessive as against the right of the Horne privilege.

Whether justice required that the plaintiff should be permitted to amend his petition, so as to present for adjudication his right to use the water for the gristmill for other purposes, is a question of fact. The denial of the motion presents no question of law.

It was said in Hutchins v. Berry, 73 N. H. 603, 604, 61 Atl. 554, a bill in equity brought by the plaintiff to determine the gristmill right, that, "in the absence of a definite specification of the amount of water excepted or the manner of its application to produce power, it must be understood the parties contracted with reference to the manner and extent the water was then at the date of the deed actually used for the purpose specified." It appears to be well settled that, when a right exists to use a certain quantity of water, a change in the mode and objects of the use without increasing the quantity is no violation of the right. Fuller v. Daniels, 63 N. H. 395; Dow v. Edes, 58 N. H. 193, 194; Wiggin v. Wiggin, 43 N. H. 561, 566, 80 Am. Dec. 192; Whittier v. Company, 9 N. H. 454, 458, 32 Am. Dec. 382; Johnson v. Rand, 6 N. H. 22. The sole question, then, is whether by the reservation in the Colby deed the parties understood the matter reserved was merely a right to operate a gristmill, and not the right to use a certain part of the water for power. It was said in Fowler v. Kent, 71 N. H. 388, 394, 52 Atl. 554, that "it would require very explicit language to overcome the natural inference that a person would not accept a deed of a mill privilege subject to the condition that his water rights should become forfeited if any change was made in the manner, purpose, or place of use." But, whether the question is simple or difficult, the interpretation of the Colby deed is not now before the court. The su perior court has ruled that the defendants ought not now to be compelled to litigate the question. This court cannot assume that there may not be some evidence which the parties can present which will aid the interpretation. Neither can they assume that all the facts bearing upon the question have been presented in the numerous cases between the present and other parties, involving this water power, that have been before the court. If that fact could properly be assumed, the court would not take the time to search the voluminous record in these cases, which presents many other questions, for facts that may be material upon this. If the question is to be intelligently considered, it should be presented upon a record which contains in itself all the facts which either party

conceives to be material. The evidence as to the modification of the original order regulating the flow of water to the Berry privilege should have been received; and, unless facts appear authorizing a change, the original order should be restored.

Case discharged.

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

(74 N. H. 238)

GILES v. SMITH.

(Supreme Court of New Hampshire.

borough. May 7, 1907.)

WITNESSES COMPETENCY
WITH DECEDENT.

Hills

TRANSACTIONS

Under Pub. St. 1901, c. 224, §§ 16, 17, prohibiting the adverse party to an action against an executor from testifying to facts occurring in the lifetime of deceased, unless the executor elects so to testify, or unless it clearly appears that injustice may be done without such testimony, plaintiff in an action for breach of contract of defendant's testate to employ plaintiff for a year, defendant not electing to testify, is barred from testifying, not only as to what deceased did or told plaintiff, but as to the contents of plaintiff's letters in reply to letters of an employé of deceased asking plaintiff to take a position with deceased, unless it be shown that deceased had not seen the letters, and therefore could not have testified in respect to them. [Ed. Note.-For cases in point, see Cent. Dig. vol. 50, Witnesses, 88 663-682.]

Transferred from Superior Court, Hillsborough County; Peaslee, Judge.

Assumpsit by Nelson A. Giles against Alice G. Smith, executrix of Charles G. Smith, deceased, for a breach of a contract of deceased to employ plaintiff for a year on the Manchester News. Plaintiff excepted to exclusion of testimony. Exception overruled.

There was evidence tending to prove the following facts: At about the time Smith came into possession of the newspaper, he asked for the plaintiff's address, so that Mellows, the managing editor, might write to him, with a view of employing him to take charge of the circulation department. The address was found, the plaintiff came to the News office and took charge of the circulation department, his name was placed upon the payroll at $18 per week, and he was paid off with the other persons employed upon the paper. On one occasion when Smith was paying off the employés he said to the plaintiff: "Your case is the worst of the lot. I will try and see that you do not lose anything by it." The plaintiff was permitted to introduce in evidence letters from Mellows to him, stating that Smith had bought the News and was in want of a circulation manager, describing the situation, and asking the plaintiff to take the place, and a later letter saying, "Your terms are accepted." The plaintiff offered to show that Mellows is now of parts unknown, and then offered himself as a witness to testify to the contents of his letters in reply to those received from Mellows, and also that, when he came to Man

chester, Smith said that Mellows was authorized to hire him. The executrix did not elect to testify. The plaintiff's testimony was excluded, subject to exception.

David W. Perkins, for plaintiff. Irving T. George and Burnham, Brown, Jones & Warren, for defendant.

PARSONS, C. J. As the executrix did not elect to testify, the plaintiff was properly excluded as a witness to all facts occurring in the lifetime of the deceased as to which the deceased could have testified if living. Pub. St. 1901, c. 224, §§ 16, 17; Parsons v. Wentworth, 73 N. H. 122, 59 Atl. 623; Perkins v. Perkins, 68 N. H. 264, 38 Atl. 1049. Under the settled construction of the statute, the plaintiff could not testify to what Smith did or told him; nor to the contents of the letters, if Smith had seen them, and therefore could have testified to their contents. Welch v. Adams, 63 N. H. 344, 351, 1 Atl. 1, 56 Am. Rep. 521. The plaintiff's testimony was not competent unless the contrary appeared. Harvey v. Hilliard, 47 N. H. 551; Fosgate v. Thompson, 54 N. H. 455; Parsons v. Wentworth, supra.

Exception overruled. All concurred.

PAGE v. HAZELTON.

(74 N. H. 252)

(Supreme Court of New Hampshire. Grafton. May 7, 1907.)

1. EVIDENCE-BOOKS OF ACCOUNT-ADMISSI

BILITY.

The entries of a testator's cash book, exceeding $6.67, are not admissible as items of book charge in favor of his executor.

[Ed. Note. For cases in point, see Cent. Dig. vol. 20, Evidence, § 1451.] 2. SAME.

Where, in a suit to establish a claim against a decedent, the claimant put in evidence decedent's books of account, and claimed that specified entries therein proved a debt due from decedent at his death, other entries rebutting the inference of the existence of the debt and showing that the transaction was a payment on account were competent.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 20, Evidence, §§ 453, 1480.]

3. APPEAL-ADMISSION OF EVIDENCE-PREJUDICIAL ERROR.

Where the inference of a debt due from a decedent to a claimant could not be drawn from entries in decedent's books of account offered in evidence by claimant in his suit to establish the claim, the admission in evidence of other entries to rebut that inference was not prejudicial.

4. EVIDENCE-ADMISSIONS-CONDUCT.

In a suit to establish a claim against the estate of a decedent, evidence that at the time claimant asserted that decedent, then living and solvent, was indebted to him claimant stated to a witness that he was unable to pay his note, which the witness had signed as surety, was admissible to discredit the claim of indebtedness. 5. SAME-REMOTENESS OF RELEVANT TESTI

MONY.

It is not error to admit relevent evidence, though the same might have been properly excluded because too remote.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 20, Evidence, § 434.]

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 can 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 bearing 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

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 defendant.

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 plaintiff to the defendant's testator, Smith. 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 use of his books of account after they have been adopted as proof by his opponent. It does not appear that the books were used as evidence for any purpose except to rebut the inference sought to be drawn by the plaintiff from the items selected by him; and, as the case is drawn, it must be assumed that the items relied on by the defendant legitimately tended to rebut such inference. But, as the

only use claimed for the books by the defendant was to rebut the inference sought to be drawn by the plaintiff, it is immaterial whether the items relied on by the defendant had such tendency, or whether they were competent for that purpose or not. "The delivery of money without other evidence of the contract between the parties raises no presumption of law that it was intended to be a loan, rather than the payment of a debt or a gift." Coburn v. Storer, 67 N. H. 86, 87, 36 Atl. 607; Fall v. Haines, 65 N. H. 118, 23 Atl. 79. As the inference sought to be drawn from the admission of the receipt of money, contained in the books of the deceased, could not properly be drawn, it is immaterial whether the evidence admitted solely to rebut that inference was competent or not. Since the only effect the evidence adopted could have had was to defeat an inference which could not have been drawn if the evidence had been excluded, the plaintiff could not have been harmed by its admission.

Subject to exception, the defendant was permitted to prove that at the time when the plaintiff claimed the deceased, then living and solvent, was indebted to him in a large sum, the plaintiff told a witness that he was unable to pay a note on which the plaintiff was principal and the witness surety. "Evidence is any matter of fact, the effect, tendency, or design of which is to produce in the mind a persuasion, affirmative or disaffirmative, of the existence of some other matter of fact." Cook v. New Durham, 64 N. H. 419, 420, 13 Atl. 650; Cole v. Boardman, 63 N. H. 580, 581, 4 Atl. 572; Cohn v. Saidel, 71 N. H. 558, 568, 53 Atl. 800; 1 Wig. Ev. 28. Evidence having any tendency, however slight, to prove a particular fact, is competent to be submitted to the jury to show that fact. Curtis v. Car Works, 73 N. H. 516, 63 Atl. 400; Eaton v. Welton, 32 N. H. 352. The evidence objected to tended to show that the plaintiff was in need of money at a time when, according to his present claim, the deceased. Smith, had in his possession a considerable sum in cash belonging to him. plaintiff's failure, in this situation, to demand or attempt to collect his debt of a responsible debtor for a considerable time, and until after the death of his alleged debtor, is a circumstance which has some logical tendency to discredit his present claim. Failure to make claim when occasion therefore exists has some tendency to prove the invalidity or nonexistence of the claim. Stone

The

v. Tupper, 58 Vt. 409, 412, 5 Atl. 387; Strong

v. Slicer, 35 Vt. 40, 43. Such failure to act may constitute "an admission by conduct" adverse to the present claim. 1 Wig. Ev. §§ 267 (b), 284. As the evidence was relevant, its admission was not error of law, even if it might properly have been excluded as too remote. Pritchard v. Austin, 69 N. H. 367, 369, 46 Atl. 188.

The testimony of the bank cashier to the payment of money by Smith upon an obligation of Smith and Page was competent. Whether the payment was available in defense would depend upon other evidence. The bond for the deed of the land conveyed by deed by Smith and Page was a part of the transaction opened by the plaintiff by the introduction of the deed and his claim to the consideration received by Smith. It was a statement under the hand and seal of the plaintiff. No objection to its competency appears, nor is it perceived in what way its admission could have prejudiced the plaintiff. If payment was made according to the terms of the bond, Smith received the money at an earlier date than the plaintiff has charged him with it. At the most, the bond, if immaterial, was not prejudicial. Exceptions overruled.

It requires a willful refusal to file the report of the election of directors within 30 days after any annual election to make the directors so failing to file the same ineligible to re-election at the next succeeding annual meeting. (Syllabus by the Court.)

Petition to establish the election of the petitioners as directors of the Brooklyn Baseball Club. Petition dismissed.

Argued February term, 1907, before FORT, HENDRICKSON, and PITNEY, JJ.

Northrop & Griffiths, for the petitioners. Vredenburgh & Wall, for the respondents.

FORT, J. We think the prayer of the petitioners in this case should be denied. The respondents were elected directors of the Brooklyn Baseball Club at the annual meeting held on November 12, 1906. They received 1,275 votes and the petitioners received 209 votes. The capital stock of the company is divided into 2,500 shares. There are five directors. The by-laws fix the second Monday in November as the date for the annual meeting. The company was organized December 11, 1899. The only meetings at which directors were elected since the or