ceased, against the Central Vermont Railway, for negligently causing the death of decedent. There was a verdict for plaintiff, and the cause was transferred on exception to the denial of a motion for a nonsuit. Exception sustained. Verdict for defendant.

a further answer in the nature of a bill in, Action on the case by Michael Connelly, equity, joining Wentworth & Co. and Charles administrator of William W. Merchant, deS. Wentworth, a nonresident, as defendants, and alleging in substance that the latter is the real owner of the mortgage and that as to him he had a valid defense to the action at law. An order for personal notice issued and was served on Wentworth outside the state, whereupon he appeared specially and moved that as to him the bill be dismissed. The motion was allowed, and the defendant brings exceptions. Sustained.

Alvin F. Wentworth, of Plymouth, and Niles & Upton, of Concord, for plaintiffs. Martin & Howe, of Concord, for defendant.

YOUNG, J. Although the court has not acquired jurisdiction of Wentworth, so that any decree it may make will bind him personally, it has acquired jurisdiction of him in so far as the locus is concerned; in other

Martin & Howe, of Concord, for plaintiff. Harry B. Amey, of Island Pond, Vt., and Streeter, Demond, Woodworth & Sulloway, of Concord, for defendant.

WALKER, J. [1, 2] The deceased was killed by being run over by one of the defendof the tracks from West Lebanon, in this ant's locomotives, which was backing on one tion, in Vermont. state, across the bridge to White River Juncthe latter place in performance of his duty He was traveling toward as a section hand, for the purpose of clearing the switches of snow and salting them. The accident occurred in Vermont, but it was agreed that the law applicable to the case is the same in both states. No one saw the ac

words, the decree in this action will be in personam in so far as it relates to the defendant and Wentworth & Co., but in rem in so far as Wentworth is concerned, unless he appears generally. In that case it will be incident, but from the attendant circumstances personam as to all the parties. Exception sustained.

PLUMMER, J., did not sit. concurred.

(77 N. H. 280)

CONNELLY v. CENTRAL VERMONT RY. (Supreme Court of New Hampshire. Grafton.

May 5, 1914.)

1. MASTER AND SERVANT (§ 240*)-DEATH OF SERVANT-CONTRIBUTORY NEGLIGENCE.

it may be assumed, in accordance with the plaintiff's contention, that the deceased was The others walking in the space between two tracks, which was some seven feet wide, but so near the track upon which the engine was backing that it hit him. In other words, he was within the zone of danger, and there was no evidence that he did not appreciate his position in that respect. He had worked in this yard for many years, was familiar with the trains and the amount of switching that was done at that point, and must have known that moving engines were liable to be near where he was at any time. The engine that overtook him was moving slowly. It was upon a straight track, and although it was snowing, and the wind was blowing, it is hardly conceivable that, if he had been in the exercise of reasonable care under the circumstances, he would not have seen the approaching engine in time to step aside and protect himself from injury. It does not appear that, if he had looked, he could not have seen the engine in ample time to avoid a collision. The reason for his inattention to what was occurring near him "is upon the facts in evidence pure speculation." Chabott v. Railway, 77 N. H. 133, 137, 88 Atl. 995.

A section hand, while clearing switches of snow and salting them, was struck by an engine while walking between two tracks, 7 feet apart; but he was too near the track on which the engine was moving. He was familiar with the trains and the amount of switching, and knew that moving engines were liable to be near at any time. The engine that struck him was on a straight track, and, though it was snowing and the wind was blowing, he would have seen it, had he looked, in time to protect himself. Several inches of snow had fallen, which partly covered the rails, and he might have been induced thereby to think he was in a place of safety. Held, that he was guilty of contributory negligence as a matter of law.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. 88 751-756; Dec. Dig. 240.*]

2. MASTER AND SERVANT (§ 281*)-DEATH OF SERVANT-EVIDENCE-ADMISSIBILITY.

The evidence, if admissible, that a section There was evidence that he was a careful hand struck by an engine was habitually careman in looking out for engines while he was ful in looking out for engines while he was at work, was overcome by the fact that, if he had at work in the yard. Whether or not this looked out for his safety at the time of the acci- evidence was admissible to prove that he exdent, it would not have occurred, and the evi-ercised the required degree of care at the dence of his habitual carefulness did not relieve him from the charge of contributory negligence in failing to look out for himself.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 987-996; Dee. Dig. § 281.*]

time of the accident need not be considered; for, if it was admissible for that purpose, its effect is overcome by the fact that, if he had been looking out for his safety, he would not have been struck by the engine. Tucker v.

Exception from Superior Court, Grafton Railroad, 73 N. H. 132, 59 Atl. 943. To say County; Peaslee, Judge.

it was his habit to keep an outlook for en

gines when at work in the yard does not war-ond for his damages and the expenses incurrant the conclusion that in this particular red in conducting the litigation. In 1908, the instance he was watching for the engine that defendant corporation agreed to convey a overtook him. The facts disclosed by the large tract of land to the plaintiff by warcase show conclusively that he was not ranty deed; but when the time to make the watching for the approach of the engines that conveyance arrived, he ascertained that the he knew were liable to be in close proximity 'company had no record title to parts of the to where he was, but that for some unex- property, and in consequence took a writing plainable reason his attention was diverted under seal from Charles H., and Myra L. from the danger of his situation. The sug- Merrill warranting the title. The plaintiff gestion that several inches of snow had fall has not incurred any expense in defending en, which had partly covered the rails, and his title to the premises, but there has been that he may have been induced thereby to a partial failure of title, and these suits are think he was outside the line of danger, is a to enforce the liability of the Merrills as speculative theory merely, which is as likely warrantors. The court ruled that the plainto be false as true upon the evidence. It is tiff could recover his expenses from the Merinsufficient to base a verdict upon. The case, rills, but not from the company, and both he so far as it discloses the manner of his and the Merrills excepted. Plaintiff's excepdeath, demonstrates that he was guilty of tion overruled, Merrills' exception sustained. contributory negligence, and that on this particular occasion he was not exercising the care of the ordinary man. If the engineer was negligent in not seeing him in a place of danger, he was also negligent in not seeing the approaching engine. Therefore the plaintiff is not entitled to recover, and the motion for a nonsuit should have been granted. Batchelder v. Railroad, 72 N. H. 528, 57 Atl. 926; Gibson v. Railroad, 75 N. H. 342, 74 Atl. 589; Greenwood v. Railroad, 77 N. H. 101, 88 Atl. 217; Chabott v. Railway, supra.

Exception sustained. Verdict for the defendant.

Walter E. Kittredge and Wason & Moran, all of Nashua, for plaintiff. Sam K. Paige, of Boston, Mass., for defendants.

YOUNG, J. The plaintiff rests his contention as to his right to recover his expenses as a part of his damages on the cases which hold that one who is sued may recover the would not have been sued but for the defendexpense he incurs in defending the suit, if he ant's failure to perform either a contractual (Fairfield v. Day, 71 N. H. 63, 51 Atl. 263), or an imposed duty (Hubbard v. Gould, 74 N. H. 25, 64 Atl. 668), provided defending the suit was the reasonable thing to do (Winni

PEASLEE, J., did not sit. The others con- piseogee Paper Co. v. Eaton, 65 N. H. 13, 18

curred.

(77 N. H. 275)

ANDERSON v. MERRILL LUMBER &

FORESTRY CO.

SAME v. MERRILL et al.

Atl. 171). These cases, however, are not in point. No one has sued the plaintiff, but he has sued the defendants. Notwithstanding they agreed to make his title good, they did not promise to pay the expenses he incurred

(Supreme Court of New Hampshire. Cheshire. in enforcing liability on their agreement;

May 5, 1914.)

and in the absence of such a promise, all he can recover as expenses of litigation is his COVENANTS ( 130*)—WARRANTY OF TITLE taxable costs. State v. Kinne, 41 N. H. 238, BREACH DAMAGES LITIGATION PENSES.

Ex

Where plaintiff, having contracted to purchase certain land from a corporation, at the time of closing ascertained that it had no record title to parts of the property, and for this reason took a warranty of title under seal from the individual defendants, and sued for breach of such warranty before he had been ousted or had incurred any expense in defending his title, he was not entitled to recover, as a part of his damages, the expenses incurred in enforcing defendants' liability on the covenant, but was only entitled to recover his taxable costs as expenses of litigation.

[Ed. Note. For other cases, see Covenants Cent. Dig. 88 245-253, 255, 256, 257; Dec. Dig. § 130.*]

240.

(77 N. H. 277) NEW ENGLAND BOX CO. v. FLINT. (Supreme Court of New Hampshire. Sullivan. May 5, 1914.) CUSTOMS AND USAGES (§ 15*)-ADMISSIBILITY IN EVIDENCE.

A usage among lumber operators to make final settlement for cutting, sawing, etc., actime of its sale, was admissible in an action cording to the surveys of lumber made at the for overpayments under a contract guaranteeing the amount of lumber paid for, both as tending to show what the parties intended and whether plaintiff had unreasonably delayed making its claim.

Actions by William H. Anderson against the Merrill Lumber & Forestry Company and against Charles H. and Myra L. Merrill. Debt, in the first case for breach of a covenant in a deed, and in the second case for breach of a bond of warranty. Trial by the court, and verdicts for the plaintiff, in the [Ed. Note.-For other cases, see Customs and first action for his damages, and in the sec- | Usages, Cent. Dig. §§ 30–33; ́ Dec. Dig. § 15.*]

The plaintiff began to remove the lumber on September 19, 1908. All the lumber except 10 car loads was shipped prior to January, 1910, and the last on April 10, 1910. During the progress of the work the plaintiff paid the defendant upon the mill measurement for 2,000,000 feet. November 3, 1910, they notified him that the lot fell short of the amount paid for by a little over 200,000 feet and requested payment of the sum of $1,174.38 under the guaranty clause of the contract. The amount of lumber manufactured from the lot was 1,900,000 feet. Evidence offered by the plaintiff of a well-known usage among lumber operators to make final settlement for cutting, sawing, etc., according to the surveys of lumber made at the time of its sale, was excluded, subject to ex-rectly upon the question whether what was

ment while the sawing was going on was understood as a final settlement, or as a preliminary adjustment to be corrected later under the contract. It also tended to show when in due course it could be ascertained whether the measurement for which the defendant had been paid was erroneous, and hence was material upon the question whether the plaintiff unreasonably neglected to make claim after it knew or ought to have known of the

error.

Pierce & Galloway, of Dover, for plaintiff. George T. Hughes and Robert Doe, both of Dover, and Leslie P. Snow, of Rochester; for defendant.

YOUNG, J. There is no special rule which excludes evidence like that admitted subject to exception; and as it was relevant to the issue of the witness' credibility, the exception to its admission raises no question of law. Hoxie v. Walker, 75 N. H. 308, 311, 312, 74 Atl. 183: Kelland v. Co., 75 N. H. 168, 170, 71 Atl. 947; Curtice v. Dixon, 74 N. H. 386, 397, 68 Atl. 587.

1.

Exception overruled. All concurred.

STATE v. JACKSON.

May 5, 1914.)

(77 N. H. 287)

Grafton.

The referee, having found a general verdict for the defendant, states the facts proved before him. It appears that the plaintiff's claim was based upon the defendant's covenant under seal. The bond and its breach found by the referee are facts inconsistent with the general verdict for the defendant, unless facts are found authorizing the conclusion that, despite the breach of the defend-(Supreme Court of New Hampshire. ant's covenant under seal, he is not liable in damages therefor. The referee finds that the plaintiff delayed unreasonably in asserting a claim under the guaranty, and that by the way the plaintiff dealt with the defendant and his subcontractor in making payments as stated by him, it waived the guaranty. Since the evidence which was wrongfully excluded was material upon each of these propositions, it is unnecessary to consider whether the evidentiary facts stated authorize the finding of waiver, or whether unreasonable delay in asserting a claim under the guaranty would of itself estop the plaintiff from the present

JURY (8_33*)-TRIAL-RIGHT TO TRIAL BY JURY DE VICINETO.

claim.

the

court shall direct the number of jurors to Pub. St. 1901, c. 209, § 7, providing that be summoned, and from what town, is not in violation of Bill of Rights, art. 17, declaring that an accused shall have the right to trial by jury of the vicinage, for that does not mean that jurors on a given panel must come from all the towns in a county, or from towns scattered all over the county, and the statute is merely declarative of the earlier practice.

[Ed. Note. For other cases, see Jury, Cent. Dig. §§ 226-232; Dec. Dig. § 33.*] 2. JURY (§ 33*)—JURY TRIAL-RIGHT TO.

Laws 1911, c. 72, referring to the division of Grafton county into districts, provides in sec

Plaintiff's exception sustained; report set tion 8 that a grand jury shall be drawn for each aside. All concurred.

(77 N. H. 595)

term of court at the places where court is held, and that petit jurors shall be drawn and returned for each term held in the county, while section 9 declares that all civil actions shall be prosecuted in the superior court in the several districts, as if each district was a distinct county. Held, that it was the intent of the Legislature that the county should continue to be one county as regards criminal prosecutions, and WITNESSES (§ 330*)-CREDIBILITY-INTENT TO that the duty of the court to direct the number SUE.

POORE v. BOSTON & M. R. R. (Supreme Court of New Hampshire. Strafford. May 5, 1914.)

of jurors, and from what towns they might be In an action for injuries to a wife, defend-drawn, was not limited; hence an accused could ant, on cross-examination of the husband, was not challenge the array of petit jurors on the properly permitted to ask him whether he would ground that, not being drawn from all the make a claim against defendant for loss of his towns, he was deprived of trial by jury of the wife's services and for money paid for nursing vicinage, secured by Bill of Rights, § 17, for that and medical attendance on her, if she recover-right does not entitle him to demand that jurors ed in the suit, as bearing on the witness' cred- be drawn from all of the several towns of the ibility. county.

[Ed. Note. For other cases, see Witnesses, Cent. Dig. §§ 1106-1108; Dec. Dig. § 330.*] Exceptions from Superior Court, Strafford County; Pike, Judge.

Action by Rebecca M. Poore against the Boston & Maine Railroad. A verdict was rendered for defendant, and plaintiff brings exceptions. Overruled.

Subject to exception, the defendant was permitted to cross-examine the plaintiff's hus

band as to whether he would make a claim against the defendant for loss of services and for money paid out for nursing and medical attendance if his wife recovered in this suit.

Nor can he challenge an indictment on the ground that the grand jury was not drawn from the whole county; for the jurors are drawn of the law when selected from those towns deterfrom the body of the county within the meaning mined upon by the court.

[Ed. Note.-For other cases, see Grand Jury, Cent. Dig. §§ 8-13, 15; Dec. Dig. § 5.*]

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

Charles S. Jackson was indicted for arson, and he moved to quash the indictment and challenged the array of petit jurors. Trans

ferred without ruling. Case discharged, and court directed." State v. Moore, 69 N. H. 102, challenge overruled. 121, 40 Atl. 702.

The indictment was found by a grand jury drawn from and attending a term of court held in the western judicial district, and charging that the offense was committed in a town which is in that district. The respondent moved to quash the indictment because the grand jury was not drawn from the whole county. The case came on for trial at a term held in the southern district, and the respondent claimed a challenge to the array of petit jurors drawn from that district.

Edward J. Cummings, of Littleton, for the State. George W. Pike, of Lisbon, and Frank S. Williams, of Bradford, Vt., for defendant.

It has been assumed in the present case, by counsel on both sides, that the act dividing Grafton county into judicial districts directed that the jurors be drawn from the several districts as though they were sepa rate counties. There is no such provision in

the act.

for the April term at Lebanon, the September "A grand jury shall be drawn and returned term at Haverhill, and the November term at Plymouth. Petit jurors shall be drawn and returned for each term held in said county." Laws 1911, c. 72, § 8.

There is nothing here which in any way limits the right or the duty of the court to direct the number of jurors and from what towns they shall be drawn. If as a matter of convenience, or for some other reason, the court has selected the towns in the district as those to furnish the jurors for the terms there held, the constitutional rights of re

juries were drawn from the body of the county, within the meaning of the law. State v. Sawtelle, 66 N. H. 488, 505, 32 Atl. 831. The law governing drawing juries in Grafton county, and the practice under it, are the same as in all other counties. The court directs what towns shall furnish jurors from term to term, so that in the course of a year

It follows from what has been said that the respondent was legally indicted, and that no cause is shown for his challenge to the array of petit jurors.

PEASLEE, J. [1-3] The first division of Grafton county into judicial districts was in 1841. The statute then passed provided in terms that all prosecutions for offenses al-spondents have not been infringed upon. The leged to have been committed in either district should be had therein. Laws 1841, c. 598, § 6. The limitation was retained, in condensed form, by the commissioners, who revised the statutes the next year (Com'rs' Rep., R. S. c. 16, § 15), but was amended by the Legislature so that it applied only to civil cases. R. S. c. 16, § 15. This provision has been re-enacted in substance whenever each town shall have furnished its proper the county has been divided into judicial dis-proportion. tricts since that time. Laws 1893, c. 8, § 5; Laws 1907, c. 28, § 9; Laws 1911, c. 72, § 9. It thus appears to be the declared intent of the Legislature that the county be divided into districts for civil business, but that as to prosecutions for crime it should continue to be one county. Willie v. Parkhurst, 31 N. H. 415. The practice under these statutes has been in accordance with the legislative mandate, and indictments have been found and tried at any term of court, without regard to the question of venue, as between the districts. It is now objected that this practice infringes the constitutional rights of a respondent to be tried by a jury de vicineto. "In criminal prosecutions, the trial of facts in the vicinity where they happen is so essential to the security of the life, liberty, and estate of the citizen, that no crime or offense ought to be tried in any other county than that in which it is committed, except in case of general insurrection." Bill of Rights, art. 17.

As this article has been construed, it does not mean that jurors on a given panel must come from all the towns in the county, or from towns scattered over all the county. "The court shall direct the number of jurors to be summoned, and from what towns." P. S., c. 209, § 7.

This has, in substance, been the law since long before the Constitution was adopted.

"In view of this fact, there remains no room for doubt or disputation that when our Constitution was adopted the right of trial in use here was the right to be tried by impartial jurors drawn from such towns in the county as the

Case discharged. All concurred.

(88 Vt. 34)

BURNHAM v. RUTLAND R. CO.
(Supreme Court of Vermont. Addison.
9, 1914.)

May

1. RAILROADS (§ 443*)—KILLING OF ANIMALS -LIABILITY EVIDENCE.

for the death of horses killed by a train, eviIn an action against a railroad company dence held to sustain a finding that the horses entered on the track because of the want of a proper cattle guard.

[Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 1608-1620; Dec. Dig. § 443.*] 2. RAILROADS (§ 421*)-KILLING ANIMALSCONTRIBUTORY NEGLIGENCE.

Where a railroad company failed to maintain cattle guards, as required by statute, and horses, because thereof, entered on the track and gence of the driver of the horses was no dewere killed by a train, the contributory neglifense.

[Ed. Note.-For other cases, see Railroads, Cent. Dig. §§ 1501-1508, 1510; Dec. Dig. 421.*]

Exceptions from Addison County Court; E. L. Waterman, Judge.

land Railroad Company. There was a ver Action by C. A. Burnham against the Rut dict and judgment for plaintiff, and defendant brings exceptions. Affirmed.