Boothby v. Plaisted. appeared, or had due and actual notice to appear, unless fraud of a serious character is established. No objection is made in respect to the form of the application here, and we therefore assume that it is in writing, as it ought to be, setting forth fully the grounds of the application. Case discharged. BOOTHBY V. PLAISTED. (51 N. H. 436.) Illegal contract-lex loci contractus. Defendant ordered, by sample, spirituous liquors of the traveling agent of a firm in another State where the sale was lawful, and they were put up marked to purchaser and shipped from the firm's place of business. Held, that the sale was made and the contract complete at the place of shipment, and that an action for the price could be maintained in New Hamp shire.* ASSUMPSIT brought by James L. Boothby and another to recover for goods sold and delivered against Sidney G. Plaisted. The claim was $361 for spirituous liquors. Plaintiffs were wholesale liquor dealers in the city of New York, and defendant a retail dealer in Portsmouth, N. H. Deposition of Samuel L. Boothby, one of the plaintiffs, was taken by commission, from which it appeared that the transaction with defendant took place July 14, 1870; when plaintiffs sold and delivered to him at 110 Liberty street, New York city, one barrel Bourbon whisky, one barrel old Bourbon, and onequarter pipe of Phoenix gin for $361. That the sale was negotiated through one Hunt, who had authority to solicit orders for goods to be sold and delivered in New York subject to plaintiff's approval. Hunt was plaintiff's traveling agent, he called on defendant at Portsmouth, N. H., July 8, 1870, with samples of liquors, took his order for same quality as samples, and agreed that he might examine them when they arrived, and if not like the samples need not accept them. The goods were packed and shipped from New York by the plaintiffs and were received and used by defendant. * See Hull v. Spear, 9 Am. R. 205. Boothby v. Plaisted. There being no material fact in dispute, the court directed a verdict for the plaintiffs for the price of the liquors, which the defendant moved to set aside. Frink & Butler, for plaintiffs. Hatch & Page, for defendant. SARGENT, J. In all respects save one, this sale of liquors stands upon the same foundation as the numerous cases reported in our State. That exception is the fact that the defendant, "after the liquors arrived at his store, might examine them, and if not according to sample he need not accept the same." But waiving that part of the contract for the present, this case, aside from that, presents the same features of numerous other cases where there was a contract for a sale of liquors made in New Hampshire, but the completed sale (completed by separating the liquors from a larger mass and setting them apart for the defendant, marking and directing them, and then by delivery at the place agreed on) was in another State. The charge for cartage is waived by plaintiff; and the case finds that the defendant paid the freight from New York. Banchor v. Warren, 33 N. H. 183; Smith & Lougee v. Smith, 27 id. 244; Woolsey v. Bailey, id. 219; Gassett v. Godfrey, 26 id. 415; Garland v. Lane, 46 id. 248; Butler v. Northumberland, 50 id. 33. But we cannot see that the additional provision as to acceptance is any thing more than the law implies in every contract where a sale is made by sample or with warranty, except that in this case it was agreed that the defendant should decide for himself whether or not the goods were according to the sample; and he certainly cannot be heard to object that he himself was made the umpire, and has by his own acts decided the case in favor of the plaintiffs. His accepting and using the goods is sufficient proof that they were considered to be according to sample; and if they were according to the sample, then he had no right or power under the contract to refuse to receive them. What questions might have arisen had the defendant in fact refused to receive them, it is not important here to determine. Here was a contract for a sale and delivery in New York of a certain description of goods as per sample. If the plaintiffs performed their part of the contract fully by delivering at the time Boothby v. Plaisted. and place agreed the articles which they agreed to furnish, then it became at once the property of the defendant, and he would ordinarily have no right to refuse to accept it. Ordinarily it would be a question for the jury to settle, whether the goods delivered were according to contract or like the sample. But in this case the parties agreed that that fact should be referred to the defendant, and he has decided the case in favor of the plaintiff. The defendant might refuse to accept if the article was not such as the plaintiffs had sold him. He was at liberty to refuse to receive an article which he had not bought or agreed to take. But the article in this case which was sold was delivered and was accepted, and we think the contract binds the defendant from the time the goods were delivered. A case in point is Gibson v. Stevens, 8 How. (U. S.) 401, where there was a guarantee that certain goods sold should bear inspection. In that case the price had been paid and a bill of sale of the goods taken, but no delivery of the goods had been made, they were left in the hands of the vendor. TANEY, C. J., in the opinion, says, "The guarantee that the articles should pass inspection does not affect the character of the transaction, or convert it into an execu tory contract. It is nothing more than the usual warranty of the soundness and quality of the thing sold, which is taken in every sale of personal property where the purchaser does not choose to take the risk upon himself." 2 Kent's Com. 480; 1 Parsons on Cont. 593; 1 Smith's Lead. Cas. 308; Vincent v. Germond, 11 Johns. 283. As to the questions and answers in the plaintiff's deposition, they are clearly competent as they stand. The witness states the matter as something within his own knowledge, and if so, the facts stated are all competent and proper. But it is urged that it must be inferred from the facts stated in the case that the witness did not know the facts contained in the answers except by hearsay. But we think no such inference necessarily follows from the facts stated in the case. Upon this point, however, the case of Dickinson v Lovell, 35 N. H. 9, 17 and 18, is in point, and is entirely conclusive. Judgment on the verdict. Where a new shore is formed on a river not navigable, by the alluvial deposits taken from the opposite side by the wearing away of the stream, the land on the new shore is to be divided between the owners entitled to it, accord. ing to the following rule: Give to each owner a share of the new shore line in proportion to what he held in the old shore line and complete the division of the land by running a line from the bound between the parties on the old shore to the point thus ascertained on the new." ACTION by Clark G. Batchelder against John Keniston, to recover a parcel of land, recently formed by alluvial deposit, along the shore and in the bed of the Pemigewassett river in Plymouth. The stream at the point in question originally made a bend nearly at right angles from a westerly to a southerly course; but by a wearing away of the shore on the inside of the bend its course is now southwesterly, and the deposits have been made on the north-westerly side forming the land in dispute. "A brook or small stream flowing from a north-westerly direction entered the river as it formerly ran at the point of the angle or bend above mentioned, and now enters the old bed of the river at or near the same point, and flowing southerly enters said river as it now runs southerly of the land in dispute, as shown on the plaintiff's original plan used on the trial. Said plan may be used and referred to at the argument." 66 It was admitted, for the purpose of the argument, that when the formation began plaintiff owned and still owns on the westerly side below the bend, and that defendant owned and now owns on the northerly side above the bend. Both claim the alluvion as their own. The question submitted is, which party is the owner of all and if neither, what is the rule of division? Leverett & Blair and Carpenter, for plaintiff. Pike & Blodgett and Burrows, for defendant. BELLOWS, C. J. At the point where the land in question wa formed, the river originally ran westerly some distance, and then, Batchelder v. Keniston. turning nearly at a right angle, ran in a southerly direction. On the northerly side of the bend was the defendant's land, and on the westerly side the plaintiff's. By the gradual wearing away of the bank on the southerly side of the river and the deposits on the other side, the land in question was formed against the lands of the plaintiff and the defendant. Had the ancient bed of the river been straight against the lands of the parties, each would have taken the newly formed lands in front of him by lines perpendicular to the general course of the river at that point; but the difficulty here arises from the fact that the river turns and forms nearly a right angle near the line between the parties. The case of Deerfield v. Arms, 17 Pick. 41, was much like the present. There the new land was formed in a bend of the Deerfield river, and the parties owned lands on each side of the bend, divided in a manner similar to the present case. It was held that each owner was entitled to a share of the alluvial deposit, to be ascertained in this way: Give to each owner a share of the new shore line in proportion to what he held in the old shore line; that is, if the old shore line was two hundred rods in length, A's share being one hundred and fifty rods and B's fifty, and the new shore line is but one hundred rods in length, then A would take seventyfive rods and B twenty-five rods of that line; and then the division of the land would be completed by running a line from the bound between the parties on the old river bank to the point thus determined on the newly formed shore or river bank. SHAW, C. J., says this rule is found in a work on the civil law "A collection of new decisions by Denisart," published in France. This rule seems to have been extensively recognized as just and convenient. It goes upon the ground that in making a division of such alluvian, two objects should be kept in view, namely, to give each proprietor a fair share of the land, and to secure to him access to the river by giving him a share of the bank in proportion to the share of the original share owned by him. Deerfield v. Arms, before cited. The rule is recognized in Angell on Tide Waters, 258, 259, and cases cited; Angell on Water-courses, §§ 55, 56. The rule, in fact, is substantially upon the same principle as that which governs the division of flats, in the case of a cove the mouth of which is of less width than the uplands to which the flats belong. And there the lines are to be run from the divisional lines of the several owners of the upland to low-water |