Indictment charging that the defendant did "keep for sale one pint of cider, to wit, a less quantity than ten gallons, and not to be sold by the manufacturer at the press, and not in an unfermented state." The defendant moved that the indictment be quashed, because it does not charge that the cider alleged to be kept for sale by him was for sale in a less quantity than 10 gallons, and because no crime or offense is fully and plainly, substantially and formally, described to him therein. The motion was overruled, and the defendant excepted. After the jury had been out several hours, they sent to the court the following written question: "Did the defendant violate the law by selling 10 gallons cider, and dividing the same on the premises into smaller quantities, and sampled on the premises, also paid for individually?" The court sent the following written reply: "The delivery of cider * * in a less quantity than 10 gallons, in or from *** any dwelling house or dependence thereof, or from any barrel, jug, bottle, or other vessel, containing the same *** shall be deemed prima facie evidence of sale,' and is a violation of law." When this question was sent and answer returned the court was not in session. Neither the defendant nor his counsel had any knowledge of it till the next morning, shortly before the jury came in and rendered the verdict. It was then excepted to. The state had introduced evidence of a sale to one Murray, for the purpose of showing the intent with which the defendant kept cider, and the defendant had testified with regard to the same transaction that Murray had talked with him about buying 10 gallons of cider, and had drunk some to sample it, but had not taken away any except what he had so drunk, and had not paid for it. There was also evidence that the defendant had at one time sold 10 gallons of cider to a number of persons jointly, and had allowed them to take it away in pails, each holding less than 10 gallons, and that they had contributed to make up the price. The jury returned a verdict of guilty.

W. B. Fellows, for the State. E. A. & C. B. Hibbard, for defendant.

SMITH, J. The allegation that the defendant did "keep for sale one pint of cider" is equivalent to an allegation that he kept one pint of cider with intent to sell the same, and it was unnecessary to allege further the intent. It is not necessary, in order to sustain an indictment, to allege or prove that the defendant kept as much as or more than 10 gallons with intent to sell the same in quantities less than that amount. It would not be a reasonable construction of the allegation of keeping for sale one pint of cider to hold, as argued, that the defendant was "going to procure more cider, and make sales only in quantities of as much as 10 gallons." No distinction is perceived between keeping 1 pint of

cider for sale, and keeping cider for sale in less quantities than 10 gallons, or between an illegal keeping for sale and a keeping for illegal sale.

In reply to the jury's written request the court instructed them that the delivery of cider in a less quantity than 10 gallons is "prima facie evidence of sale, and is a violation of law." The indictment charges, not an illegal sale, but the illegal keeping for sale, and evidence of sales was received for the purpose of showing the intent with which the cider was kept. The inquiry by the jury evidently related to the defendant's colorable transactions, whereby he sold 10 gallons of cider to a number of persons jointly, and allowed them to take it away in pails holding less than 10 gallons, the purchasers contributing to make up the price. Their inquiry was relevant to the case on trial so far as sales tended to show intent, and in any other view of the case was immaterial. By the statute, delivery of cider in a less quantity than 10 gallons "shall be deemed prima facie evidence of sale." Gen. Laws, c. 109, § 16. In an indictment for selling, evidence of delivery, unexplained, would warrant a jury in finding the respondent guilty. The statute does not declare that the mere fact of delivery shall be deemed a sale, but prima facie evidence of a sale. It was error, therefore, to charge that delivery is a violation of law. The criminal offense in this case would be, not the delivery, but the keeping with intent to sell in less quantities than 10 gallons. Verdict set aside.

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

MUDGETT v. EMERSON.

(Supreme Court of New Hampshire. Hillsborough. July 29, 1892.)

ASSUMPSIT EVIDENCE.

In an action for services, where plaintiff claimed that defendant promised to pay therefor, and defendant claimed that the services were rendered without expectation of payment, evidence may be admitted of the extent of defendant's farm, for the purpose of showing the necessity of his employing assistants.

Exceptions from Hillsborough county.

Bill by Mary Mudgett against George L. Emerson. A verdict was rendered for plaintiff, and defendant excepts. Exceptions overruled.

D. A. Taggart and E. M. Topliff, for plaintiff. J. P. Bartlett and T. O. Knowlton, for defendant.

SMITH, J. The plaintiff seeks to recover for her services in the defendant's family. The plaintiff's evidence tended to show that the services were performed upon his promise that she should be paid, and that he had said repeatedly that she should be well paid for her work. The defendant denied any

promise, and claimed that the services were rendered by her as a member of his family, without expectation of payment. As bearing upon the question of the understanding of the parties, the plaintiff introduced evidence, subject to exception, of the extent of his farm and amount of his property. If the defendant's circumstances were such that he was compelled to employ help in his family, that fact might have some tendency to show whether the plaintiff lived with him as a dependent relative or stranger, or as a hired servant. The larger his farm, the more occasion he would have to employ assistants in carrying it on; and the more help upon the farm, the more occasion he would have for household help if the farm hands were boarded in his family. So the fact whether he was possessed of a large or considerable property, or was a person of moderate means or in straitened circumstances, might bear on the probabilities of his hiring family servants. Eaton v. Welton, 32 N. H. 352. If the evidence could have been excluded as slight and remote, or misleading and unfairly prejudicial (Manufacturing Co. v. Head, 59 N. H. 332), its admission was not error of law. Exception overruled.

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

GRIFFIN v. GLEN MANUF'G CO. (Supreme Court of New Hampshire. Coos. March 11, 1892.)

INJURIES TO SERVANT-NEGLIGENCE OF MASTEREVIDENCE.

A command given by the master in a loud and harsh voice to the engineer in charge of a derrick to "Hoist her! Hoist her! There is a team waiting,"-is not negligence entitling an employé to recover for injuries caused by the engineer obeying in a negligent manner.

Exceptions from Coos county.

Action by John T. Griffin against the Glen Manufacturing Company. A motion for a nonsuit was denied, as was a motion that a verdict be directed for defendant, and he excepts. Exceptions sustained.

Case for injuries from the alleged negligence of the defendant. The plaintiff's evidence tended to show the following facts: November 26, 1889, the defendant corporation was building a branch railroad from its mills to the Grand Trunk Railway's road, employing some 80 men, 20 of whom were working in a rock cut. James Perry was superintendent of the work and of the men. The plaintiff, with others, was engaged in raising stone blasted in the cut to the bank above, 8 or 10 feet. The machinery used consisted of a portable steam engine, stationed on the bank, managed by an engineer, a derrick supplied with ropes, chains, and hooks, and a scaleboard with rings of iron for connecting it with the derrick. The hooks were 22 or 3 inches long, and slightly

rounding, and had to be held in place when hooked to the rings in the scale board till "the ropes took the strain," or they would become unhooked. The machinery was operated by power from the engine. The method of using the machinery was as follows: The scaleboard was lowered into the cut, where it was filled by men stationed there for that purpose. When filled, they adjusted the hooks in the rings, and signaled the engineer, by raising a hand, to hoist it, who did so slowly, until the ropes became taut and the hooks were made tight in the rings, when the scale board was taken up, unloaded, and returned. On the day of the accident, the plaintiff, with three others, was in the cut, loading the scaleboard. When loaded, the hooks were inserted in the rings, and held in place by the workmen. The plaintiff, holding a hook in place with his left hand, gave the signal to the engineer with his right. While he was in this position, Perry came along, and, in a loud and harsh voice, hallooed to the engineer, with an oath: "Hoist her! Hoist her! There is a team waiting." The engineer applied the steam, and the scale board went up on a jump, without the ropes "taking the strain" or the plaintiff having time to get out of the way. The hook opposite him became unfastened, and, the scale board coming in contact with the plaintiff, he was thrown against the wall, and injured. No question was raised but that the engineer and the four men in the cut were coservants. The defendant moved for a nonsuit, which was denied, subject to exception. At the close of the evidence, a motion that a verdict be ordered for the defendant was also denied, subject to exception.

Twitchell & Goss and R. N. Chamberlin, for plaintiff. Drew & Jordan, Ladd & Fletcher, W. P. Buckley, and D. J. Daley, for defendant.

SMITH, J. The question has been elaborately argued whether Perry, in giving the order to the engineer for hoisting the scaleboard, was acting as vice principal or as a fellow servant of the plaintiff. In the view we take of this case, that question need not be considered. Assuming, as most favorable for the plaintiff, that he was vice principal, there was no evidence of negligence on his part competent to be considered by the jury. No question is made of the competency of the fellow servants, and there is no allegation of defective machinery or appliances, nor of lack of instruction of the plaintiff as an inexperienced employé. The only negligence claimed is the harsh and loud tone of voice in which the direction to the engineer was given. The direction to the engineer was not a command to hoist the scaleboard improperly, nor more quickly than usual. He could not reasonably understand he was to act in such manner as to endanger

the safety of others. He was not commanded to do an unlawful act, nor a lawful act in an improper manner. There was nothing in the fact that a team was waiting that required undue haste in hoisting the board. That was the only reason given by Perry to the engineer to attend to the duty assigned to him. There was no danger of injury to the team, nor from it, by collision or otherwise. The negligent manner of hoisting the board was the act of the engineer, and not of Perry. The motion for a nonsuit should have been granted. Exceptions sustained.

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

TOWN OF FARMINGTON v. DOWNING et al.

(Supreme Court of New Hampshire. Strafford. July 28, 1893.)

TAXATION OF COLLATERALS - COLLECTION OF TAX -REMEDY BY APPEAL.

1. The rule that the excess only of the value of bank stock over the amount of the interestbearing indebtedness for which it is pledged is taxable applies to nonresidents.

2. A suit to compel payment of a tax cannot be defended on the ground that the national bank stock on which it was levied was not taxable on account of its being pledged as security, the remedy being by appeal from the assessment.

Case reserved from Strafford county.

Bill by the Town of Farmington against Amos W. Downing and others. Case discharged.

April 1, 1890, Downing was the owner of 50 shares of the capital stock of the Farmington National Bank at Farmington, and was assessed a tax thereon in Farmington of $129.25. April 1, 1891, he was the owner of 100 shares of stock, and was assessed a tax thereon in Farmington of $283. The shares at the time of the respective assessments were, ever since have been, and still are, pledged by Downing to the Cochecho Savings Bank as collateral security for money owing by him to the latter bank in a sum equal to the par value of the shares, and upon which he was, and still is, paying interest. April 1, 1890, Downing was, and ever since has been, a citizen and resident of Haverhill, in the state of Massachusetts, and the plaintiff has exercised due diligence, and has been unable to collect either tax. The defendant claims that the shares were not liable to taxation, because of his indebtedness to the savings bank. The question the parties intend to raise by the foregoing agreed statement of facts is whether the doctrine of Weston v. Manchester, 62 N. H. 574, and Peavey v. Greenfield, 9 Atl. 722, 64 N. H. 284, applies to a nonresident. If it does, Downing is entitled to the benefit of it

G. E. Cochrane, for plaintiff. R. G. Pike. for Downing.

CLARK, J.

State taxation of national bank shares is permitted, subject to the re striction that it shall not be at a greater rate than is assessed upon other moneyed capi tal in the hands of individual citizens of thesame state. Rev. St. U. S. § 5219. For taxable purposes, Downing's national bank stock is to be treated as money on hand or at interest, and if he had been a resident of this state the excess only of the value of the stock over his interest-bearing indebtedness would have been taxable (Weston v. Manchester, 62 N. H. 574; l'eavey v. Greenfield, 64 N. H. 284, 9 Atl. 722), and, as the value of the stock did not exceed the amount of his indebtedness, it would not have been taxable. The taxable value of the shares is not determined by the residence of the owner. If the stock was not taxable to Downing as a citizen of New Hampshire, it was not taxable to him as a citizen of Massachusetts The imposition of a higher tax upon him as a citizen of Massachusetts than he would be obliged to pay as a citizen of this state would be in. conflict with the provision of the federal constitution that the citizen of each state shall be entitled to the privileges and immunities of citizens of the several states Const. U. S. art. 4, § 2, pt. 1; Cooley, Tax'n 64. As the deduction on account of the owner's indebtedness can be made only wherethe tax is assessed, Downing could not avail himself of it in Massachusetts. A nonresident is not required to furnish an account or inventory of his taxable property. Pub. St.. c. 57, § 6; Dewey v. Stratford, 40 N. H. 202, Manufacturing Co. v. Strafford, 51 N. H 455; Carpenter v. Dalton, 58 N. H. 615. Downing, however, cannot avail himself of the defense that his bank stock was not taxable, or that the tax is excessive. The assessment, being in the nature of a judgment, cannot be impeached collaterally in this proceeding. His remedy was by an appeal from the assessment by an application to the selectmen for an abatement, and, in case of their refusal to abate, by petition seasonably made to the supreme court to abate the

On the appeal a hearing could be had and any error in the assessment corrected. Edes v. Boardman, 58 N. H. 580; Locke v Pitsfield, 63 N. H. 122; School-Dist. v. Carr,. Id. 201, 206; School-Dist. v. Selectmen, Id 277; Boody v. Watson, 64 N. H. 162, 165, 9 Atl. 794. As a petition for abatement must be presented to the supreme court within nine months after notice of the tax (Pub.

St. c. 59, § 11), it is now too late to make the application, and Downing can have no re Larkin v. Portsmouth, 59 N. H. 26 Case discharged.

lief.

SMITH, J., did not sit. The others comcurred.

KNOWLTON et al. v. HOIT. (Supreme Court of New Hampshire. Hillsborough. March 11, 1892.)

MASTER AND SERVANT-INDEPENDENT CONTRACTOR -LIABILITY FOR NEGLIGENCE.

Defendant having bought standing timber, H. contracted to cut it into lumber, at an agreed price per thousand feet, assuming entire control of the work, and hiring and paying his men. Held, that defendant was not liable for injuries to adjoining land resulting from the negligence of H. or his employés in the performance of the contract.

Exceptions from Hillsborough county.

Trespass by T. O. Knowlton and others against John W. Hoit. There was a verdict for defendant, and plaintiffs except. Exception overruled, and judgment for defend

ant.

The defendant bought the standing timber on a lot adjoining the plaintiffs' land, and made a contract with one Hazen to cut the standing trees into lumber, at an agreed price per 1,000 feet. Hazen performed the -contract, hiring and paying his men. Beyond making the contract and paying the price agreed, the defendant had nothing to do with cutting the timber. The defendant took the lumber from the lot. In felling the trees, some of them fell upon and across the plaintiffs' fence and wall, breaking some of the boards, and throwing down some of the top stones of the wall; and, in trimming them, some of the limbs were left on the plaintiffs' land. The defendant afterwards repaired the wall and fence, and removed the most of the limbs and brush from the plaintiffs' land. The defendant does not own the land on which the timber was cut. The court found that the oak tree for which the plaintiffs claim damages was not on the plaintiffs' land, and, being of the opinion that the defendant was not responsible for the injury to the plaintiffs' wall, fence, and land by the acts of Hazen and his men in cutting the lumber, found a verdict for the defendant, and the plaintiffs excepted.

T. O. Knowlton, for plaintiffs. D. A. Taggart, for defendant.

SMITH, J. Hazen was a contractor, exercising an independent employment, and se lecting his own servants and workmen. He was not an ordinary laborer, personally engaged in the cutting of the trees, nor acting under control of the defendant. The injuries of which the plaintiffs complain were not the natural result of the work contracted to be done. The contract was to do an act in itself lawful, and the authority conferred by the defendant on Hazen was that of executing it in a lawful manner. The maxim "respondeat superior" does not apply. Carter v. Mills Co., 58 N. H. 52. Judgment for the defendant.

PORTSMOUTH BREWING CO. v. PORTS MOUTH BREWING & BOTTLING CO. (Supreme Court of New Hampshire. Rocking ham. July 28, 1893.) TRADE-NAME-INJUNCTION-ILLEGAL BUSINESS.

A corporation engaged in the liquor trade contrary to law cannot sue to enjoin another corporation from using a name similar to its

own.

Case reserved from Rockingham county.

Bill by the Portsmouth Brewing Company against the Portsmouth Brewing & Bottling Company. Case was reserved for the consideration of the supreme court. Bill dismissed.

The parties are Portsmouth brewers. The plaintiff organized as a corporation, in 1875, under Gen. St. c. 138, "for the purpose," as stated in their articles of association, "of manufacturing, brewing, and exporting from the state of New Hampshire, for lawful sale and consumption, beer, ale, and other malt liquors, by whatever name called, and for making malt, casks, and barrels, and carrying on all other lawful business connected therewith." The defendant organized as a corporation, in 1892, under Pub. St. c. 147, "for the purpose," as stated in their articles of association, "of brewing and manufacturing beer, ale, and porter, and for bottling and selling the same and other drinks." The object of the plaintiff's incorporation was to carry on the business of brewing intoxicating malt liquor, and selling it in this state and elsewhere, in barrels (31 gallons) and half and quarter barrels; and it has been and is engaged in that business.

S. W. Emery, for plaintiff. C. Page, for defendant.

CLARK, J. The plaintiff asks a court of equity to protect him by injunction, and aid him in carrying on the business of brewing and selling intoxicating malt liquors in this state and elsewhere. The business is prohibited by law. It is carried on in violation of the statutes of the state, and the plaintiff's bill is, in effect, a petition to the court to assist him in violating the law. The owner of property has a right to protection in any legal use or business in which it may be employed, but, if he chooses voluntarily to engage in illegal business, he has no legal claim upon the court to aid him by protecting his property. Bill dismissed.

DOE, C. J., did not sit. The others coucurred.

CRIPPEN v. ROGERS et al. (Supreme Court of New Hampshire. Merrimack. July 29, 1892.) INSOLVENCY-ACTION BY ASSIGNEE INJUNCTION. Where a resident of Massachusetts has several creditors residing in that state, and one

Bill by H. J. Crippen for an injunction restraining the defendants Rogers, Wood, Loring & Co. from prosecuting their action against Potter, White & Bayley; also, restraining the defendant Nutter from applying the proceeds of property attached by him as deputy sheriff in satisfaction of any judgment that may be recovered in said action; also, restraining the defendants Dunn, Allen & Bullens, assignees in insolvency in Massachusetts of the estate of Potter, White & Bayley, from attempting to recover under the deed of assignment to them in the insolvency proceedings the property attached by Nutter. The bill was filed October 1, 1891. Dismissed.

Facts agreed: The plaintiff is a resident of this state. All the defendants, except Nutter, who is a resident of this state, are residents of Massachusetts. May 25, 1891, Rogers, Wood, Loring & Co. commenced an action against the firm of Potter, White & Bayley, in the supreme court for Strafford county, to recover two promissory notes amounting to $37,500; and Nutter, as deputy sheriff, attached on the writ personal property of the debtors, consisting of shoes and shoe stock, of the value of more than $20,000, in the shoe factory of A. Nute & Sons, in Farmington, and summoned Nute & Sons as trustees. May 26th, Potter, White & Bayley, being unable to meet their maturing diabilities, made an assignment, covering their property in Massachusetts and New Hampshire, to Dunn, Allen & Bullens. Rogers, Wood, Loring & Co., who advised the assignment, being holders of other notes besides those sued in New Hampshire, became a party to the assignment by signing the same with other creditors; reserving, by a clause inserted in their acceptance, all their rights under their attachment. The property attached, by agreement between the assignees, attaching creditors, and debtors, was mostly manufactured into shoes, and sold by the officer, September 2d, under the provisions of the statute authorizing the sale of perishable property; the net proceeds, after paying the expense of manufacturing and the expenses of sale, being $22,224.10, which sum is now held by the officer. August 24, 1891, proceedings in insolvency were commenced in Massachusetts against Potter, White & Bayley, and later Dunn, Allen & Bullens were appointed assignees. Before Rogers, Wood, Loring & Co. commenced their suit, they agreed verbally with Dunn and Allen to attach the property in New Hampshire for the benefit of all the creditors of Potter, White & Bayley who should agree to share ratably in the

assets of the debtors. July 9th, Rogers, Wood, Loring & Co., Potter, White & Bayley, and Dunn, Allen & Bullens agreed in writing that the expense incurred by Rogers, Wood, Loring & Co. in their attachment should be paid by the assignees, and that whatever sum Rogers, Wood, Loring & Co. should recover in their suit should be paid to the assignees for distribution under the terms of the assignment. May 26, 1891, the National Bank of Redemption of Boston held two promissory notes against Potter, White & Bayley,-one for $4.490, which matured May 29th, and one for $4,520, which matured June 25th. June 1st, the bank employed one Leonard, an attorney at law in Boston, to go to Concord, N. H., and, if possible, sell to Crippen, the plaintiff, for $4,000, the note maturing May 29th. Leonard took with him the following letter of introduction: "Boston, Mass., June 1, 1891. H. J. Crippen, Concord, N. H.-Dear Sir: Allow me to introduce to you Mr. W. H. Leonard, of Boston. We would be very much obliged to you if you will transact the business with him which he has in hand, as he fully represents us in in the premises. Very truly yours, E. A. Presbey, Cashier." Leonard also took with him the following guaranty: "Whereas, the National Bank of Redemption has sold this day to H. J. Crippen, of Concord, N. H., a note signed by Potter, White & Bayley to their own order, and indorsed by them, dated November 26, 1890, on six months, for forty-four hundred and ninety dollars: Now, therefore, in consideration of the purchase of said note by the said H. J. Crippen, the National Bank of Redemption hereby agrees to pay H. J. Crippen any deficit which the said Crippen may sustain by reason of his inability to recover the full amount of said note against said Potter, White & Bayley, and also to pay said Crippen a sum equal to all his costs, charges, and expenses incurred in any attempt to collect the same, including interest. The National Bank of Redemption, Boston. E. A. Presbey, Cashier. [L. S.] June 1, 1891." Leonard delivered to Crippen the letter of introduction, note, guaranty, and a printed copy of the case of Proctor v. Bank, reported in 152 Mass. 223, 25 N. E. 81. Crippen consented to take the note on the terms proposed, and promised to send his check in payment of the same on the next day. Leonard returned to Boston early on June 2d. Later in the day, Crippen received a letter from the bank, addressed to Leonard. He did not open it, but delayed sending his check, and wrote to the bank as follows: "Mr. Leonard called on me last evening, and arranged for me to take the Potter, White & Bayley note, $4.490. I find this morning inclosed letter for him. Not knowing whether you wish to change the arrangement, I will wait till I hear from you before doing anything about the note." The bank received the letter June 3d, and sent the following telegram in