WHITE MOUNTAINS RAILROAD COMPANY v. EASTMAN, ADM'R. Assessments on railroad shares — Fraudulent subscription to railroad stock-Stockholders as witnesses.

That a witness may be made liable for the debts of a corporation on account of his having been a stockholder therein, under the statute of this State giving a remedy to the creditors of the corporation in certain cases specified, and upon particular proceedings presented for the recovery of their debts, against the stockholders personally, is no ground for excluding the witness from testifying for the corporation.

The records made by the clerk of a railroad corporation of the proceedings of the directors in ordering assessments upon the shares of the capital stock, may be used as evidence by the corporation in a suit brought by them to recover the assessments upon shares subscribed for by the defendant, he being one of the original grantees in the charter, and a director at the times of ordering the assessments, and having exercised the privileges of a stockholder from the time of his subscription, by virtue of the shares so subscribed for.

The intestate subscribed for thirty shares in the capital stock of the plaintiff corporation, agreeing to pay by the terms of the subscription, to the treasurer, the assessments which might be made upon the shares as ordered by the directors. At the time of the subscription, the clerk of the corporation, by order of the directors, signed and delivered to the intestate a writing as follows:

"In consideration that Ebenezer Eastman (the intestate) will subscribe for 30 shares in the White Mountains Railroad, said corporation agree to release him from twenty-five of said shares or such portion of said twenty-five shares, as he may within one year elect to withdraw from his subscription, and if he has been assessed and has paid anything on those shares, that he elects to be released from, that those payments shall be allowed him on the shares that he retains, and that the treasurer shall regulate his stock accounts and assessments accordingly."

It was understood between the directors and the intestate that the subscription was to be held out to the public as a bona fide subscription for the thirty shares, and no public disclosure was to be made of the fact that such writing had been given to the intestate.

Held, that the agreement to release the intestate from any of the shares subscribed for, was a fraud upon other subscribers, and void. And that the intestate was liable for the assessments on the thirty shares.

DICKEY V. LIVERMORE.

Scire facias against surety on appeal taken from a justice judgment. It is no answer to a scire facias upon the recognizance entered into by the appellant to the adverse party upon an appeal from the

judgment of a justice of the peace in a civil cause, that the recognizance was taken with one surety only, it appearing that the parties agreed that it should be so taken.

Nor is it any ground of defence to such scire facias that after the appeal was entered in the Court of Common Pleas the parties made an agreement in writing to refer the action, and have it dismissed from the docket of the court; it appearing that the agreement was not filed with the clerk until after two continuances of the cause in that court, and a trial by the jury and verdict returned, subsequent to the making of the agreement.

The defendant was held to bail. On the trial he moved the court to change the bail, so that the person originally taken might be a witness. The plaintiff made no objection to the responsibility of the new bail offered, but the court ruled that it was not within their discretion to grant the motion. Held, that the ruling was

wrong.

Affidavits of jurors are not admissible to show the consultations that took place in a jury-room; or the motives, inducements, or principles upon which a jury founded or joined in a verdict.

The formation of a jury that is to try a cause is under the direction and within the discretion of the presiding judge.

HILLIARD v. GOOLD.

Tariff of fares on railroads Conductors Excessive use of authority a question for the jury.

Where tariffs of fares of freights and passengers upon a railroad are established and posted up by the president of the corporation, and the fares taken upon such tariffs are received and appropriated by the corporation without objection, the legal presumption is, that the president acted by the authority of the corporation in thus establishing and posting such tariffs.

The statute requiring conductors on railroads in this State to remove from the cars passengers refusing to pay the established fares, was intended to apply to all persons properly acting as conductors without regard to the formal regularity of their appointment, or the source from whence they derive compensation for their

services.

A uniform discrimination in the tariff of fares for passengers, of five cents in favor of those who purchase tickets before entering the cars, over those who pay after taking their seats, is reasonable and legal.

Whenever the justification of an act alleged to be wrongful and injurious, is founded on the exercise of authority, whether that authority be incident to the official character and duty of the party exercising it, or arise from the misconduct of the opposite party and the necessities of the case, the question of the excess of such authority is to be determined by the jury upon the evidence submitted for their consideration, and not by the court.

BLAKE v. RICH.

Lands taken for railroads — Rights of owners.

The fee in land taken for the purpose of constructing a railroad under the laws of this State, remains in the owner of the soil from whom the land is taken, subject to the easement of the corporation as leased to them by the State.

The exclusive right of property in the land, in the trees and herbage upon its surface, and the minerals below it, remains unchanged, subject always to the right of the corporation to construct and operate a railroad over and through it, as authorized by law.

BERLIN v. GORHAM.

Power of legislature over public corporations — Supplies furnished paupers Settlement of paupers.

The legislature has entire control over public corporations, to create, change, or destroy them at pleasure; and they are absolutely created by the act of incorporation itself, without the acceptance of the people, or any act on their part; unless otherwise provided by the act itself." A person who is a resident of the territory incorporated as a town at the time of its corporation, gains a settlement, though no meeting of the town is held before his removal.

A notice signed by selectmen as such, of support furnished to a pauper, is sufficient without saying overseers of the poor, if the overseers were chosen, and there will be no variance, though the declaration allege the notice to be signed by the selectmen and overseers of the poor.

Supplies furnished for the support of those who nurse a sick pauper may be properly regarded as supplies for the support of the pauper.

If charges for supplies to a pauper are intentionally excessive, they will be disallowed wholly; otherwise, if made too large by mistake.

If a person is taxed in a town seven years in succession, and does not pay the taxes of each year, he does not gain a settlement, though the tax unpaid is illegal. If the illegal tax is void, there is a failure to be taxed; if only voidable, a failure to pay; though if a part of a tax is legal, it is enough to pay that part.

RUSSELL V. FABYAN.

Liability of tenant at sufferance for damage done to the premises - Redemption of real estate after levy.

Fabyan held under a written lease from the plaintiff, until it expired, certain premises, and still continued to occupy after the expiration. Held, that after his lease expired he was a tenant at sufferance; that until the landlord entered upon him, he was not liable to an action of trespass; that in other respects he was answerable for any damages growing out of his interference with the property, as a disseizer would be, who is responsible for any damage occasioned by his conduct, whether wilful or negligent; that an action on the case is the proper remedy for any such injury; and the tenant at sufferance having taken a lease and bond of indemnity from a third person, the latter was liable with him in a joint action.

Where the land of a debtor is set off on execution, he has a right of redemption, which may be taken and sold, subject to a like right of redemption, and so on successively. If the debtor has conveyed the property before any levy, by a deed voidable as to creditors, the guarantee has still an interest entitling him to redeem any of these levies.. An offer to prove the deed of the plaintiff to be fraudulent as to creditors, made by a purchaser on a second levy, was proper, and the evidence should have been received.

MILES v. ROBERTS.

What witness understood — Contract for specific articles — Delivery — New

contract.

A witness may testify what he understood from the conversation of the parties.

A contract was made for a payment to be made in grain, on a day, but with no designation of a place of delivery; the parties may subsequently agree on a place by which they will be bound; though parol evidence is not admissible to prove an original agreement not put in writing. Where there was shown a subsequent agreement to fix the place of delivery, the court are not called upon to state to the jury, where the place of payment would be by the original contract.

If a place was agreed upon and the defendant had then the grain ready to be delivered, and the plaintiff was there, saw it and declared himself satisfied with its quantity and quality, it would be evidence of an acceptance and discharge of the contract.

If a legal tender was made at the time and place of delivery agreed on, that would discharge the contract. An agreement of the defendant on a new consideration to carry the grain to another place and deliver it there, is not a waiver of the previous payment.

The plaintiff cannot avail himself of such new contract as a cause of action, in a declaration on the original contract alone.

HOVEY V. BARTLETT.

Equity of redemption - Extent.

The interest in land mortgaged, of the mortgagor in possession, will pass by the extent thereon of an execution against him upon an appraisal of the land at its full value, irrespective of the mortgage.

PERKINS v. PITMAN

Attachment by deputy sheriff Liability of sheriff.

A deputy sheriff to whom a writ of attachment is delivered, with instructions to attach thereon a specific chattel, cannot avoid liability for neglecting to make the attachment, upon the ground that no indemnity was furnished to him against the liability which he might incur by making it, or that his fees for the service were not paid or tendered to him; unless at the time of receiving the instructions, or subsequently upon ascertaining the true situation of the property, he gave notice to the party requesting the attachment, that he objected to proceeding for those reasons.

A writing signed by the deputy sheriff and returned with the writ, by which the deputy agreed with the party plaintiff to be accountable when judgment was recovered, would not subject the sheriff to official accountability, and would, therefore, not be equivalent to a return of an attachment.

In case judgment should be recovered by the party plaintiff in such suit, the measure of damages in an action brought by him against the sheriff or his deputy for the neglect, would be the whole amount of the judgment, or so much thereof as the value of the property which the deputy neglected to attach would have been sufficient to satisfy.

The deputy, who has thus become liable for his neglect, cannot be a witness for the party defendant in that suit.

June Term, 1856. Strafford.

BUSBY V. LIttlefield.

Answers in equity, how far evidence for defendants — Mistake in conveyance of land.

It is a general rule in equity, that, when a replication is put in to an answer, and the parties proceed to a hearing, all the allegations of the answer which are responsive to the bill, will be taken as true, unless they are disproved by two witnesses, or by one witness with corroborating circumstances.