have the Associated Press news-was a mere statement as to the happening of a future event, and both statements may be fairly considered the expression of a mere opinion, or of an existing intention to do a certain act, which was liable to be changed at any time by the act of the majority of the stockholders. Ferry Co. v. Jones, 39 N. H. 491; Kelsey v. Oil Co., 45 N. Y. 505; McAllister v. Railroad Co., 15 Ind. 11; 1 Mor. Priv. Corp. § 98; 1 Cook, Stock, Stockh. & Corp. Law, § 138. If the representations had been that they had already purchased the Nashua Telegraph, and had then secured the Associated Press reports, a question would arise which the case does not now present. If these statements of Towner are regarded as a parol agreement made previous to or contemporaneous with the execution of the contract of subscription, they are inadmissible in evidence, and will not be allowed to vary or control the written contract, and are inoperative and void. Railroad Co. v. Eastman, 34 N. H. 124; Ferry Co. v. Jones, supra; 1 Cook, Stock, Stockh. & Corp. Law, §§ 136, 137; 1 Mor. Priv. Corp. § 98.

It does not appear that Towner undertook to release the defendant from his subscription. He had no power to do so because Goodell refused to subscribe, or for any other reason. 1 Mor. Priv. Corp. §§ 109, 111. The defendant raises the objection that this suit cannot be maintained for the subscription of the stock because no assessments have been collected by sale of the stock subscribed for. This objection was not raised at the trial. But as it appears that the defendant, by the terms of his subscription, agreed to pay the amount at specified times, a suit can be maintained on the agreement. It is only where a subscriber for stock agrees to take a specified number of shares, without expressly promising to pay the amount of the same or the assessments, that he cannot be personally sued on the contract until his shares have been sold to pay the assessment. road Co. v. Johnson, 30 N. H. 390, 403; road Co. v. Eastman, supra; Building Co. v. Burlingame, 67 N. H. 301, 32 Atl. 23; Shoe Co. v. Pray, 67 N. H. 435, 32 Atl. 770; 1 Mor. Priv. Corp. § 144. No question is made but that the whole amount of the capital stock authorized was subscribed. Judgment for the plaintiffs.

RailRail

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

ROBERTSON v. HALE. (Supreme Court of New Hampshire. Merrimack. July 31, 1896.)

JUSTICES OF THE PEACE CIVIL LIABILITY

JUDICIAL ACTS - TAKING OF DEPOSI-
TIONS-ATTENDANCE OF WITNESSES.

Under Pub. St. c. 224, §§ 3-7, which gives a justice of the peace power to summon witness

es to appear before him to give their deposition, and, on their neglect to do so, to bring them before him for punishment, a justice is not liable for false imprisonment of a witness duly summoned to give his deposition, and to appear and sign it at the time to which the proceedings were adjourned, though no fees were paid for such further attendance, as the courts will not, in a collateral proceeding, inquire as to the regularity of the justice's proceedings further than to ascertain if he had jurisdiction.

Action by Carlton E. Robertson against Napoleon B. Hale. Judgment for defendant.

Trespass for false imprisonment. Facts found by the court. The plaintiff was duly summoned January 9, 1896, to appear before the defendant, a justice of the peace, at his office, on January 10, 1896, at 3 o'clock a. m., to give his deposition concerning an issue be tween the plaintiff and the trustee in an action then pending, and was paid the legal fees: for such attendance. He did not appear. The subpoena was subsequently changed so asto read "three o'clock in the afternoon," instead of "three o'clock in the forenoon," and was again served upon the plaintiff in the forenoon of January 10th, but no further fees were paid, tendered, or demanded. The plaintiff appeared in accordance with the requirement of the subpoena as changed, and gave his deposition. The deposition was taken in shorthand. When it was finished, the plaintiff declined to sign it and make oath to it before it was written out in longhand, and it was arranged that he should come in the next day at 6 o'clock p. m., and complete the deposition. The defendant adjourned the caption accordingly, although the plaintiff was not aware of the fact. No fees were paid, tendered, or demanded for attendance at the adjournment. The deposition was ready for signature at the time appointed. The plaintiff did not attend. On January 13th the defendant notified the plaintiff by postal card that the deposition had been written in longhand, and requested him to come in and complete it. On the next day-January 14thhe met the plaintiff on the street, and made a like request. The plaintiff called at the defendant's office about half past 7 o'clock in the morning of January 15th to comply with the request, but the office was closed. In the afternoon of the same day the defendant issued an attachment, and had the plaintiff arrested, and brought before him for contempt in neglecting to appear and complete the deposition at the time to which the caption was adjourned. The plaintiff's failure to appear earlier was due to his giving attention to other duties. He had no intention of disregarding his obligation to complete the deposition, whether the obligation arose from his agreement or from the law. No formal hearing was had on the question of contempt. The plaintiff, in response to inquiries by the defendant, stated that he had called in the morning, and did not call at the time appointed, or at any other time, because he had been busy. The defendant told him he must

Joseph S. Matthews, for plaintiff. Albin, Martin & Howe, for defendant.

WALLACE, J. It is a general rule that courts and judges are not liable in civil actions for their judicial acts within the scope of their jurisdiction, and this protection extends to magistrates exercising an inferior and limited jurisdiction,-as justices of the peace. For the purpose of securing a fearless and impartial administration of justice, and to guard against an oppressive abuse of legal authority, the law exempts all judicial officers, from the highest to the lowest, from civil liability in the performance of their judicial duties within their jurisdiction, but makes them liable to impeachment or indictment for official misconduct or corruption. Evans v. Foster, 1 N. H. 374, 377; Burnham v. Stevens, 33 N. H. 247; State v. Towle, 42 N. H. 540; Jordan v. Hanson, 49 N. H. 199; Waldron v. Berry, 51 N. H. 136; State v. Ingerson, 62 N. H. 437; Boody v. Watson, 64 N. H. 162, 165, 9 Atl. 794. In cases upon this subject courts do not undertake to revise the doings of the tribunal whose acts are brought in question collaterally, but only to examine them so far as to ascertain whether the tribunal was acting within its jurisdiction. They proceed upon the ground that, if the tribunal had jurisdiction, its judgment is conclusive, and cannot be examined or reversed collaterally, but must stand until reversed by some proceeding instituted for that purpose. Boody v. Watson, supra. Therefore this suit for false imprisonment cannot be maintained against the justice for his judicial acts in taking this deposition and in the contempt proceedings against the plaintiff, if the magistrate had jurisdiction to perform the acts he did. The statute (Pub. St. c. 224, §§ 3-7) which gives a justice of the peace power to issue writs of summons to witnesses to appear before him to give their depositions, and, upon their neglect or refusal to answer such summons, to bring them before him for punishment, in express terms conferred upon the justice jurisdiction of the subject-matter in this case. And the justice, having the plaintiff properly before him for contempt, had jurisdiction of the person as well as the subject-matter. Whether the plaintiff was properly summoned or not, or the adjournment was properly made, are mere irregularities, which cannot be inquired into collaterally, and therefore will not be examined into in this case, as it appears the justice was acting within the limit of his jurisdiction. Burnham v. Stevens, 33 N. H. 247, 258. He is not, therefore, liable in a civil action; and, whatever we may think of the wisdom of his act in granting the writ of attachment for contempt, we cannot, in these collateral proceedings, re-ex

CHASE, J., did not sit.

The others concur

red.

PATTEN V. PATTEN et al. (Supreme Court of New Hampshire. Sullivan. July 27, 1894.)

DEEDS-CONDITIONS.

A deed conveying an acre of land in a farm contained a condition that the grantee should forever maintain a fence between the property conveyed and the farm. Held, that subsequent owners of the acre through several mesne conveyances containing no reference to the condition are liable to a subsequent owner of the farm for the costs of building a fence.

Action by Henry Patten against Jacob E. Patten and another. Judgment for plaintiff.

Assumpsit for fees paid to fence viewers and for services in building a fence. Facts agreed. agreed. November 26, 1863, John S. Sanborn conveyed one acre, parcel of his farm, to Thomas Eastman, by a deed containing a clause as follows: "The conditions of this deed are that the said Thomas Eastman, his heirs and assigns, shall build and forever keep in repair the line fence between said Thomas Eastman and the said John S. Sanborn on the land above described." The title to the farm has come to the plaintiff, and that of the acre to the defendants, in each case through several mesne conveyances, in none of which is the condition mentioned or referred to. The defendants deny that they are bound by the condition.

Hosea W. Parker and Ira Colby, for plaintiff. George R. Brown, for defendants.

PER CURIAM. Judgment for the plaintiff.

SALVAGE v. HAYDOCK. (Supreme Court of New Hampshire. Carroll. July 31, 1896.)

POSSESSION OF LAND-CONSTRUCTIVE NOTICE OF TITLE-RECORD OF DEFECTIVE DEEDLEGAL AND EQUITABLE TITLE-MERGERFORECLOSURE PAROL ASSIGNMENT OF MORTGAGE-WRIT OF ENTRY.

1. Possession under a deed defectively executed, in that it is only attested by one witness, where the statute requires two, is constructive notice of the existence of such deed, as to one who claims title by a deed executed subsequent to the commencement of such possession; and the title of the former is superior to that of the last grantee.

2. Under Gen. Laws, c. 135, §§ 3, 4, which provide that no deed shall be valid, except against the grantor and his heirs, unless the execution thereof is attested by two witnesses, the record of a deed, the execution of which is attested by only one witness, is not constructive notice of its existence.

3. Where the owner of the equity of redemption purchases an outstanding mortgage, and attempts to foreclose it, it will be conclusively presumed that she intended to hold the mortgage es

tate and the equity of redemption separate, and there will be no merger.

4. A deed given by a mortgagee in attempting to execute the power of sale in the mortgage, which is defective for the reason that it is attested by only one witness, when the statute requires two, will operate as an assignment of the mortgage.

5. An assignment of a mortgage is valid without being acknowledged, recorded, or attested, and may be made by parol on delivery of the mortgage and debt, or of the debt alone.

6. A writ of entry cannot be maintained by a mortgagor, or his successor in interest, against a mortgagee or one claiming under him, in possession, after condition broken.

Writ of entry by John E. Salvage against John T. Haydock. Judgment for defendant.

Facts found by the court: Both parties claim under Hattie B. Davis, who acquired title, subject to an outstanding mortgage, September 10, 1883. The mortgage gave the owner of it power to sell the premises for the purpose of foreclosure in case of breach of condition. It was assigned to Davis September 5, 1884; and June 22, 1885, she attempted to execute the power by selling the premises in accordance with its terms. Her deed to the purchaser was attested by only one witness, and was recorded June 26, 1885. The defendant claims under the grantee in this deed. February 3, 1886, Davis gave. Stephen W. Trowbridge a quitclaim deed of the premises, dated June 22, 1885, and acknowledged February 3, 1886. Trowbridge had no actual knowledge of the Davis deed given in execution of the power. The plaintiff claims under Trowbridge.

Josiah H. Hobbs and Frank Weeks, for plaintiff. John C. L. Wood, for defendant.

WALLACE, J. It appears that the defendant is now in possession of the premises, as this writ of entry is brought to oust him; but it does not appear from the case, with certainty, when he and those under whom he claims went into possession, but, presumably, it was at the date of the deed under the power of sale. If so, as the deed under which the plaintiff claims was executed and delivered after that date, the possession of the defendant and those under whom he claims would be constructive notice of the existence of their deed, and their title would be good against the plaintiff. Patten v. Moore, 32 N. H. 382; Doe v. Doe, 37 N. H. 268. The deed under which the defendant claims, being defectively executed because attested by only one witness, when the statute then in force required two (Gen. Laws, c. 135, §§ 3, 4), may be invalid to pass the fee against the plaintiff, who had no actual notice of it (Hastings v. Cutler, 24 N. H. 481; Sanborn v. Robinson, 54 N. H. 239); and its record is not constructive notice of its existence (Montgomery v. Dorion, 6 N. H. 250; Lovell v. Osgood, 60 N. H. 71). But it would operate as an assignment of the mortgage if there was no merger of the titles in Hattie B. Davis. The general rule, that when the entire equitable and

legal estates are united in the same person a merger takes place, is subject to many exceptions. There will be no merger against the express or presumed intention of the parties, and, when justice requires it, a mortgage is upheld, even when the parties have undertaken to discharge it. Towle v. Hoit, 14 N. H. 61; Ladd v. Wiggin, 35 N. H. 421; Stantons v. Thompson, 49 N. H. 272; Bacon v. Goodnow, 59 N. H. 415; Hammond v. Barker, 61 N. H. 53; Green v. Currier, 63 N. H. 563, 3 Atl. 428. Here the holder of the equity of redemption, Hattie B. Davis, had assigned to her the outstanding mortgage, and, instead of discharging or attempting to discharge it, she undertook to foreclose it by executing the power of sale. This shows conclusively that she intended to hold the mortgage estate separate from the equity of redemption, and did not intend that they should merge, as in that case there would have been no necessity for foreclosure proceedings. Justice also requires that the mortgage should be upheld for the benefit of the purchaser at the foreclosure sale and his subsequent grantees.

An assignment of a mortgage is valid without being acknowledged, recorded, or attested, and may be made by parol upon delivery of the mortgage and debt, or of the debt alone. Whittemore v. Gibbs, 24 N. H. 484; Wilson v. Kimball, 27 N. H. 300; Blake v. Williams, 36 N. H. 39. An invalid foreclosure sale under a decree of court or under a power of sale, which for any reason fails to pass the title, operates as an assignment of the mortgage. And, if the purchaser at such a sale has subsequently sold the property by deed, this amounts to an assignment of the mortgage to such grantee. In such a case, when the owner of the mortgage is in possession after a breach of condition, a writ of entry cannot be maintained against him by the mortgagor, or any one claiming title under him. Burns v. Thayer, 115 Mass. 89; Brown v. Smith, 116 Mass. 108; 1 Jones, Mortg. (5th Ed.) § 812. The defendant being the owner of the mortgage by a valid assignment, and being in possession of the mortgaged premises after a breach of the condition, as appears from the deed under the power of sale, the plaintiff cannot maintain this writ of entry against him. Judgment for the defendant.

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

WESTGATE v. TOWN OF HAVERHILL

et al.

(Supreme Court of New Hampshire. Grafton. July 31, 1896.)

WILLS-SCHOOL DISTRICTS.

A testator directed the interest of a fund to be divided equally among the school districts of a town, for the support of the schools. When the will was executed there were twenty districts in the town, but before his death they were consolidated into two districts, one of

which included part of another town. He resided in the town, and was familiar with the changes, but made no alteration in his will. Held, that the interest should be divided between the two districts in proportion to the number of pupils in each residing in the town.

Suit by Tyler Westgate, executor of the will of Samuel F. Southard, deceased, against the town of Haverhill and others, for the construction of a will. Case discharged.

Bill in equity by the executor of the will of Samuel F. Southard for the construction of certain provisions of the will, and direction as to the appropriation of the income of funds paid to the town of Haverhill as trustee. Facts agreed. By his will executed April 4, 1883, the testator, who died May 4, 1893, bequeathed $5,000 to the town of Haverhill, "the interest thereof to be appropriated annually to and among the school districts in said town equally, for the support of schools in said districts." When the will was executed there were about 20 school districts in the town. In February, 1885, district No. 13 organized itself as a separate district, with a board of education, under Gen. Laws, c. 87; and in May, 1885, it united with district No. 10, in the town of Bath, under Id. c. 86, § 4, to form what has ever since been known as the "Union High School District of Woodsville." A majority of the legal voters of district No. 13 and of the union district have always been legal residents of Haverhill. According to the terms of union, the Bath district was to retain all its personal property, to be disposed of for the use and benefit of taxpayers in that district; and the Woodsville district property, both real and personal, was to vest in, and become the common property of, the united districts, as if they had originally been one. In 1886 the remaining school districts in Haverhill were united, by virtue of the general law, into the "Haverhill Town School District," under the management of a board of education, and have so continued. Since March 1, 1886, there have been only two school districts in the town,-the "Union High School District of Woodsville" and the "Haverhill Town School District,"-each independent of the other, and controlled by a board of education, with powers confined to its own district. The town of Haverhill appropriates money for school purposes, assesses taxes upon all the taxable property and persons in the town, and pays the same to the districts upon the basis of the valuation of the property of each situate in the town. The town of Bath pays to the high school district the amount of school money required to be raised by law, according to the valuation of the property in the district situate in that town. From March, 1886, until his death, in 1893, the testator resided in Haverhill, and was familiar with the changes in the school districts, but made no alteration in the provisions of his will relative to the bequests to the town for educational purposes.

Bingham, Mitchell & Batchellor and William F. Westgate, for plaintiff. William H. Cotton and Smith & Sloane, for defendant. town of Haverhill. Burleigh & Adams, for defendant Haverhill Town School Dist. Samuel B. Page, for defendant Union High School Dist. of Woodsville.

CLARK, J. The question to be determined is that of appropriation of the income of the fund bequeathed by Samuel F. Southard to the town of Haverhill for educational purposes. A will takes effect as if executed immediately before the decease of the testator, and is to be construed by the law as it then stood (Morey v. Sohier, 63 N. H. 507, 3 Atl. 636; Perkins v. George, 45 N. H. 453); but, in ascertaining the intention of the testator, a will speaks as of the time it was executed, and account may be taken of all the circumstances surrounding the testator (Jenkins v. Fowler, 63 N. H. 244; Kennard v. Kennard, 63 N. H. 303; Sanborn v. Sanborn, 62 N. H. 631; Kimball v. Lancaster, 60 N. H. 264). The purpose of the testator in making the bequest was to improve the efficiency of all the schools in the town of Haverhill for the benefit of the scholars attending them, and, with this object in view, he desired to distribute the income of the fund equally among the school districts. He accordingly made the bequest to the town, and authorized an annual distribution of the income thereof equally among the districts for the support of schools, thus conferring upon the town the power of making the annual division. The bequest having been made for the benefit of the scholars, the only equal distribution that can be made of the income is a division according to the number of scholars in each district. The number of districts is immaterial. The interest of the fund is payable to the school districts because they are charged with the maintenance and management of the schools. If there were now 20 districts in the town, as was the case when the will was executed, the interest of the fund would be divided into 20 parts, and distributed among the districts, so that all might share in it. As there have been since March, 1886, but two districts in the town, managing all the schools, the income of the fund should be divided equally between them, and paid over to the officers of the districts, and it would seem that the only equal division that can be made is one according to the number of scholars in each district resident in Haverhill. This appears to have been the testator's view of the method to be pursued in making a distribution of the income of the bequest. He was a resident of Haverhill, he was familiar with the changes in the school districts of that town subsequent to the execution of his will, and, as he made no alteration in the language of the will relative to the division of the income of his bequest, it is reasonable to infer that he did not consider it necessary to do so. The Union

Testator bequeathed to his granddaughter a nominal legacy, stating that her father had already received his share, which would become hers on testator's death. The residuum of his estate he bequeathed to his wife, son, and daughter,-the daughter receiving the use and income of her share,-remainder to testator's grandson. Subsequently the daughter died, and testator executed a codicil to his will, in which he provided that, as his daughter left considerable property, and if he should die before her estate was settled, and he should receive her property, he bequeathed the same in equal parts to his wife, son, grandson, and granddaughter. Subsequently, and before his death, testator made a settlement with his daughter's husband, by which he received a portion of her estate. Held, that such portion should be distributed according to the provisions of the codicil, and not under the will, since, as the testator had carefully divided the estate which was then his by the will, his intention was that the granddaughter should participate in the accession from the daughter's estate.

Appeal from probate court, Cheshire county. Bill by Stratton, executor, and others, against Stratton and others, for the construction of the will of Isaac Stratton, deceased. From a decree of the probate court, complainants appeal. Case discharged.

Probate appeal from a decree of distribution upon the estate of Isaac Stratton. Trial by the court. The parties agreed that the case should be considered as a bill in equity for the construction of the will and codicil thereto of said Stratton. The material parts thereof are as follows: "Third. I give and bequeath unto my granddaughter, Bessie K. Stratton, ten dollars. This, with the property that I gave her deceased father, that will come into her possession at my decease, will make her share of my property. After paying off the legacies to my grandchildren, funeral charges, and debts, I will and bequeath the remaining part of property as follows: (1) I give and bequeath unto my beloved wife, Lucy E. Stratton, one-half of my household furniture, and my gold watch and chain. I also give and bequeath unto her one-third of my real estate and personal property. I will and decree her the right privilege of taking as a part of her share of her dower my house in Keene, No. 28 Court street, for ($2,500) twenty-five hundred dollars, including all the gas fixtures and lighting apparatus, furnace, and stoves, and water apparatus belonging to the house. The

and bequeath unto my son, Menzies E. Stratton, one-third of my real estate and personal property, excepting my household furniture, music box, and watch. Whereas I lent him $300 December, 1881, and his bank note of two hundred dollars that I signed, dated September, 1882, I paid for him, I therefore decree that ($500) five hundred dollars may be taken from his legacy, with no interest. (3) I give and bequeath unto my daughter, Josephine W. Richardson, one-half of my household furniture, and music box. I also give and bequeath unto her the use and income of one-third of my real estate and personal property during her life, since she is well off, and has no issue. I will and decree the same property unto my grandson, Edwin W. I. Stratton, to come into possession of it after the decease of my daughter. I decree that there shall be no bondsmen required of my daughter for the safe-keeping of the property willed to my grandson, and, if she thinks it expedient, she may pay him such portions of his legacy, while she is living, as he may happen to need, and take his receipt for the same. If my grandson decease before my daughter, without wife or issue, then at the decease of my daughter it shall revert to my legal heirs, including my wife, Lucy, as one equal with them." The codicil is as follows: "Know all men by these presents, that I, Isaac Stratton, of the town of Keene, in the county of Cheshire and state of New Hampshire, considering the uncertainty of this life, and being of sound mind and memory, do make and declare and publish this, my last codicil to my foregoing will, made the 24th day of January, 1891. Whereas, my daughter, Josephine W. Richardson, has deceased since the date of my will, I hereby revoke that part of my will to my deceased daughter, and give and bequeath unto my wife, Lucy, the same household furniture that I willed to my deceased daughter. I also will and decree that my wife, Lucy, shall take the place in relation to my grandson's legacy that is stipulated in my foregoing will to my daughter, Josephine. Whereas, my daughter, Josephine W. Richardson, left considerable property, and if I decease before her estate is settled, and in the end the law gives me her property, I will and bequeath the same in equal parts to my wife, Lucy, and my son, Menzies Stratton, and my grandson, Edwin W. I. Stratton, and my granddaughter, Bessie Kendall Stratton; her last year's school expenses to be deducted from her share, because it is expected that Josephine W. Richardson's estate will have to pay the bill." The testator's daughter, Josephine W. Richardson, mentioned in the will and the codicil, died in Chicago, July 24, 1891, leaving property of the estimated value of from forty to fifty thousand dollars. She left a hus band, Lloyd D. Richardson, surviving her, but no lineal descendants. There was a dispute as to her domicile. The husband claim