was intended to authorize a division of fence by prescription only; and that there could be no adverse claim, and consequently no division by prescription, while Gliuuen was in possession of 1 as mortgagee and of an undivided half of 2 as a tenant in common. The defendant cites Binney v. Proprietors, 5 Pick. 503. In that case the plaintiff owned land adjoining undivided lands, which had, time out of mind, been owned and occupied by the defendants as tenants in common. When the case was decided, the defendants had been incorporated 16 years. For 56 years the plaintiff and his ancestors had maintained the fence between the two tracts, and during the same time they owned 11-144 of the undivided tract. The plaintiff contended that if he owned both tracts the prescriptive obligation set up by the defendants would be extinguished by unity of possession, and that no part of the time of the tenancy in common before incorporation could be included in the period of prescription. Of this claim the court say: "The statute [of fences] prescribes the rule where there is no obligation between the parties. It does not interfere with contracts or rights existing independently of the statute. A man may be bound by prescription to maintain a fence for the benefit of another as well as himself, and an action on the case will lie against him if damage ensues, in case it be out of repair. Star v. Rookesby, 1 Salk. 335. So he shall not have an action of trespass or case for damage done to his lands if he ought to keep the fence in repair. * * * The prescriptive duty is completely proved. Why should the plaintiff be allowed to shift or divide this duty? The land came to him cum onere, and it is neither just nor lawful in him to cast it off. But it is said the defendants cannot set up this prescription, because the plaintiff is one of the tenants in common, or a member of a corporation. But this cannot make a difference. The rights to the two parcels of land are distinct, and the proprietors are distinct. If there would be a difficulty, the defendants being mere tenants in common with the plaintiff, that difficulty is cured by the incorporation of the defendants. They are now distinct parties. And even if they now were merely tenants in common, the difficulty would be on the plaintiff's side, from an incapacity to sue himself with others. * Where there is a union of titles and possession, an easement does not exist; but that principle is inapplicable to the present case. Here the land and titles are distinct, and the defendants may well prescribe for an easement in the plaintiff's land, or against his right to a contribution in building and repairing fences." The remedial difficulty arising from the inability of a plaintiff to sue himself with others is obsolete in this state; and there is nothing in the relations of joint owners, or in the nature of their titles, that renders it impossible that a division of fence between their land and an adjoining lot belonging to one of them should be established by prescription or contract. "The parties" by whose usage and acquiescence the statute authorizes a division of fence to be established are "the owners of adjoining lands." When A., owning lot 1, is one of several joint owners of the adjoining lot, 2, he, as owner of 1, is one party, and the owners of 2 are the other party, within the letter and intent of the statute, as they would be if A. had no interest in 2. The legislature have not expressly excepted cases of this kind, and there is no evidence from which an intended exception of them can be inferred. The length of the line between the plaintiff's lot, No. 1, and the defendant's lot, No. 2, is 107 rods. From 1862 to 1889, a part of the fence, extending 57 rods from the north end, was maintained by the owners of 2, and the other part, 50 rods long, was maintained by the owners of 1. In 1871, 1872, and 1873 this was done in pursuance of an oral agreement. In those years the usage and acquiescence were a mere execution of the agreement. The plaintiff contends that in those years the usage was not adverse, within the requirement of the law of prescription, and that a division has not been established under Gen. Laws, c. 142, § 3. One object of the act of 1862 (chapter 2614), of which Gen. Laws, c. 142, § 3, is a revision, apparently was to change the statute as construed in Glidden v. Towle, 31 N. H. 147, 168170, on the subject of division of fence by prescription. The act provided that in controversies between owners or occupants of adjoining lands relative to a division of partition fences, any right or privilege claimed and enjoyed for 20 years by one party and acquiesced in by the other, should have the same effect as an agreement written and recorded. In the revised form "such division may be established by usage and acquiescence. * * for twenty years." An alteration of the sense was not designed by the commissioners of revision. Com'rs Rep. c. 129, § 3. In the connection in which the phrases occur, "usage and acquiescence," and "any right or privilege claimed and enjoyed for twenty years*** by one party and acquiesced in by the other," may have the same meaning. Both expressions may signify a right claimed and enjoyed under and in performance of an agreement, express or implied, as well as a right claimed and enjoyed adversely without an agreement. This is the natural and ordinary meaning of the words, and they do not appear to have been used in a peculiar sense. The operation of the act of 1862 was not expressly limited to cases of prescription, or to rights claimed and enjoyed adversely in the technical sense of the law of prescription; and the evidence of legislative intent preponderates against the exclusion of contractual, as distinguished from prescriptive, claims. The result is that a division has been established by usage and acquiescence. Case discharged. ALLEN, J., did not sit. The others concurred. FURNALD v. BURBANK. (Supreme Court of New Hampshire. Hillsborough. July 29, 1892.) ARGUMENTS OF COUNSEL. Where unwarranted remarks of counsel in the course of argument are retracted, and it appears affirmatively that the jury was not influenced by them, the verdict will not be disturbed. Exceptions from Hillsborough county. Action by David O. Furnald (A. W. Lampry, plaintiff in interest) against David H. Burbank. Verdict for plaintiff. Motion to set aside the verdict for unwarranted remarks of the plaintiff's counsel in argument, to which the defendant seasonably objected. The remarks were retracted, and the jury requested by counsel and instructed by the court not to consider them. The presiding judge found as matter of fact that the jury was not influenced by the remarks, and denied the motion. The defendant excepted. Exceptions overruled. C. A. Sulloway and E. F. Jones, for plaintiff. H. E. Burnham and A. C. Osgood, for defendant. SMITH, J. The plaintiff having restored to the trial the fairness of which he had divested it, and having made it to appear affirmatively that the jury was not influenced by his unwarranted statement (Bullard v. Railroad, 64 N. H. 27, 32, 5 Atl. 838), the order must be, exception overruled. CLARK, J., did not sit. The others concurred. SMITH v. HALL. (Supreme Court of New Hampshire. Strafford. 1. A married woman who joins her husband in the mortgage of real property, releasing her dower and homestead, is entitled to redeem from the mortgage. 2. Where a married woman, who joined her husband in the execution of a mortgage, redeems from that mortgage, equity will preserve her homestead interest unaffected by a second mortgage, in which she has not joined, by subrogating her to the rights of the first mortgagee. Case reserved from Strafford county. Bill in equity by Marion H. Smith against John F. Hall to have certain premises set apart for her after redemption from a mort gage on them as a homestead. The agreed facts on which the case was tried were that on February 4, 1886, the plaintiff's husband mortgaged the premises in question to the Farmington Savings Bank, to secure his promissory note for $641.78, the plaintiff releasing dower and homestead. September 19, 1887, Smith executed a second mortgage of the premises to the defendant (in which the plaintiff did not join), to secure his promissory note for $1,000. The defendant has commenced proceedings by writ of entry against the plaintiff's husband to foreclose the latter mortgage, also proceedings by writ of entry against the plaintiff and her husband to foreclose the first mortgage, of which he has procured an assignment to himself. Both actions are pending in court. The plaintiff prays that a homestead may be set out to her in the mortgaged premises as against the second mortgage, and that shebe allowed to contribute such proportion of the debt secured by the first mortgage as thecourt shall deem equitable. Worcester & Gafney, for plaintiff. G. E Cochrane and S. S. Parker, for defendant.. SMITH, J. The plaintiff is entitled to a homestead of the value of $500 in the equity of redemption from the bank mortgage (Gen. Laws, c. 138, § 1), and her right is not affected by the second mortgage, to which she was not a party. She is entitled, on redeeming the bank mortgage, to hold the whole estate until the defendant shall repay her the amount of that mortgage, when she will beentitled to have a homestead assigned, without contribution, from that part of the premises occupied as such. Pollard v. Noyes, 60 N. H. 184. Case discharged. All concurred. days afterwards, while riding on a switching engine of the defendant, which came in collision with a baker's cart at the Walnut street crossing in Nashua. He was about his ordinary work at the time. The defendant had no gate or flagman at the crossing, and freight cars were commonly kept standing, and at the time of the accident were standing, on a side track, in such position as to hide the engine from the view of persons in the street and approaching the crossing from the west. This was the negligence complained of. Bancroft was in the defendant's service as a brakeman and car coupler, and had been for three years a member of the gang operating the switcher, consisting of an engineer, fireman, conductor, and two other brakemen. In this employment he had occasion to pass over the Walnut street crossing 10 or 12 times daily, and assisted in putting freight cars on and taking them from the side track nearly every day. He was a good workman, and kept track of the cars to be handled, and knew just where they stood. The side track was a storage place for freight cars not in use or waiting to be unloaded, and had been used for that purpose during the time Bancroft had been in the defendant's employment, and there had never been a flagman or gate at the crossing. There were steps on the front and rear of the switching engine, on which the men were in the habit of standing when riding. They were not required to ride there, but were at liberty to ride in the cab, or on the steps, as they chose. At the time the accident occurred, Bancroft was riding on the step, in front of the engine, and received his injuries in the collision with the baker's cart. The defendant moved for a nonsuit, and for a verdict, on the ground that Bancroft, with full knowledge of the situation and danger, assumed the risk of riding in front of the engine. It is apparent that Bancroft was familiar with the location and situation of the crossing, the side track and freight cars upon it, and the extent to which the view was obstructed by them. During three years of continuous service, he had passed over the crossing several times daily, and had been accustomed to assist almost daily in putting cars upon the side track, and taking them from it. It is to be assumed that he knew the situation of the freight cars at the time of the accident, from the fact that it appears that his attention to his work and his observation were such that he could at any time tell the location of the freight cars on the tracks, and their distance from the crossing. There had been no change in the situation at the crossing. There was nothing to mislead or to conceal the danger, or to increase the ordinary risk of passing over it. He knew there was no gate or flagman there to warn travelers. He knew the extent to which the freight cars on the side track obstructed the view from the highway. He knew of the exposure to collision with teams and carriages at the crossing. He knew the place where he was riding in front of the engine was dangerous in the event of a collision, and he knew that he was not required to be there, but could ride in the cab or behind it, if he chose to do so. He knew as inuch about the danger as any one could know, and needed no warning or caution to avoid it. The risk to which he was exposed was apparent. It was the ordinary hazard incident to his employment, as the business was conducted when he entered the defendant's service, and as it had always since been conducted. The exposure to danger had not been increased by any change in the use of the side track, or by any circumstances unknown to him, and his three years' experience in the service had made him familiar with the risks incident to it. A servant or employé assumes the obvious risks incident to his employment. In engaging and continuing in the defendant's service for three years, with knowledge of the mode of doing the business, the situation of the side track and crossing, the use of the side track for storing cars, the obstruction to the view of travelers, and the lack of a gate or flagman at the crossing, Bancroft must be hela to have assumed the risks that were obvious and incident to his employment in the existing condition of things, as the business was conducted with the tracks and crossing located and used as they were. Fifield v. Railroad Co., 42 N. H. 225, 240; Foss v. Baker. 62 N. H. 247, 251; Hanley v. Railroad Co., Id 274; Nash v. Iron Co., Id. 406, 408; Coombs v. Railroad Co., 156 Mass. 200, 202, 30 N. E. 1140; Lewis v. Railroad Co., 153 Mass. 73, 26 N. E. 431; Boyle v. Railroad Co., 151 Mass. 102, 23 N. E. 827; Lothrop v. Railroad Co., 150 Mass. 423, 425, 23 N. E. 227; Tuttle v. Railway, 122 U. S. 189, 194, 7 Sup. Ct. 1166. The question is not whether the hazard and danger of the employment might have been lessened by adopting some other mode of doing the work at the crossing; it is whether the defendant is responsible for injuries due to a risk which Bancroft assumed in his contract of service. The case is as if Bancroft, by special agreement, had assumed the obvious risks incident to his employment, under the condition of things existing. Having done so, his administratrix cannot now say that it might have been less hazardous under different circumstances. As it is plain that Bancroft's injuries were due to obvious risks connected with his employment, which he must be held to have understood and assumed, the action cannot be maintained. Judgment for the defendant. CARPENTER, J., did not sit. The others concurred. BREMBER v. JONES. (Supreme Court of New Hampshire. Hillsborough. March 17, 1893.) HIGHWAYS-LAW OF THE ROAD. Gen. Laws, c. 75, § 11, requires a person traveling with a vehicle, meeting another person so traveling on a highway, to turn to the right of the center of the traveled part of the road, "so as to enable such person to pass with his vehicle without interference." Held, in an action for a collision on a highway, where it appeared that there was sufficient room for both to pass, and that the collision could have been avoided if plaintiff had exercised due care, he could not recover, though defendant did not turn to the right. Case reserved from Hillsborough county; Isaac W. Smith, Judge. Action by Andrew C. Brember against Jeremiah B. Jones for injuries caused by negligence of defendant. Case reserved. Judg. ment for defendant. Facts found by the court: "The plaintiff was riding in a top, four-wheeled buggy, and the defendant in an open express wagon, upon Elm street, in Manchester. At a point about midway between Prospect and Harrison streets their carriages collided. The plaintiff's carriage and harness were broken, and his person slightly injured. At the place of collision, Elm street is 100 feet in width. The sidewalks on either side are about 16 feet wide, leaving 68 feet for a carriage way. The surface of the roadbed is level, and is paved with granite blocks. A double track street railway occupies the center of the street, the tracks being 3 feet in width and 4 feet apart. The distance from the most easterly rail to the easterly sidewalk is 27 feet, or 24 feet to a line of trees standing on the easterly side of the street. The plaintiff was traveling north, and the defendant south, on the easterly side of the street-railway tracks; the plaintiff being the nearer to the sidewalk, and the defendant the nearer to the railway track. The plaintiff claimed that the collision was caused by the defendant's negligence, other than by his traveling on the easterly side of the center of the highway. The defendant claimed that the collision was caused by the plaintiff's negligence. Upon both these issues there was no preponderance of evidence in favor of the plaintiff. The accident would not have happened if the defendant had traveled on the westerly half of the highway. If, as matter of law, the defendant is liable because he did not turn seasonably to the right of the center of the highway, the plaintiff's damages are assessed at $100." C. E. Cochrane and J. F. Briggs, for plaintiff. William Little, for defendant. CLARK, J. The statute "establishing the law of the road" goes no further than to prescribe the duties and regulate the rights of travelers "in meeting and passing each other with carriages and vehicles, and leaves their rights and liabilities in all other particulars unaltered, and to be regulated and determined by the principles of the common law. Ordinarily, if one traveler in meeting another be found upon the half of the way appointed to him by the statute, traveling with ordinary care and prudence, and he sustain an injury by a collision with the vehicle of another, who is upon that part of the way to which he has not the statutory right, the individual who has thus sustained the injury may have redress by action against him who was thus on the part of the way to which the statute did not give him the right. The traveler who thus travels prudently and carefully upon the half of the way assigned to him, will ordinarily pass at the hazard and risk of him who trenches upon his rights in the manner already stated. *** It is legal negligence in any one thus to occupy the half of the way appropriated by law to others having occasion to use it in traveling with teams and carriages, and he is chargeable for any injury flowing exclusively from that cause. *** If carelessness or negligence be shown on the part of him who may have sustained an injury, and who seeks redress, and which has in some measure more or less contributed to the injurious result. in such case it would seem unreasonable * * * to allow a recovery for the damage sustained. It would allow a party to profit by his own negligence or wrong. In order to entitle himself to redress for injuries sustained in passing others on highways, the traveler must himself be faultless; he must not be found invading the rights of others at the time, nor to have contributed to his own injury, in any degree, by reason of his own carelessness or negligence. Carelessness on the part of the injured party, contributing to the injury, would forbid the legal conclusion that would otherwise result, of a right to redress for the injury sustained." Brooks v. Hart, 14 N. H. 307, 311, 312. It is not enough, to entitle the plaintiff to damages, to show merely that the defendant was traveling in violation of the law of the road at the time of the injury. To maintain his action the plaintiff must establish two propositions: (1) That the collision was the result of the defendant's negligence; and (2) his own inability to avoid it by the exercise of ordinary care. This he has failed to do. The case finds that there was no preponderance of evidence in favor of the plaintiff upon the issue whether the collision was caused by the negligence of the plaintiff, or, in other words, whether the plaintiff could have avoided the collision by the exercise of ordinary care. It does not appear, therefore, that the collision was not due to the plaintiff's negligence, notwithstanding the defendant was on the wrong side of the road. If the defendant was guilty of legal negligence in not turaing to the right of the center of the highway,-which we do not decide,- it was nevertheless the duty of the plaintiff to exercise ordinary care to avoid a collision. "To warrant a recovery where both parties are present at the time of the injury, as well as in other cases, ability on the part of the defendant must concur with nonability on the part of the plaintiff to prevent it by ordinary care. Their duty to exercise this degree of care is equal and reciprocal. Neither is exonerated from this obligation by the present or previous misconduct of the other. The law no more holds cne responsible for an unavoidable, or justifies an avoidable, injury to the person of one who carelessly exposes himself to danger, than to his property, similarly situated. in his absence. He who cannot prevent an injury negligently inflicted upon his person or property by an intelligent agent 'present and acting at the time' (State v. Manchester & L. R. Co., 52 N. H. 528, 557; White v. Winnisimmet Co., 7 Cush. 155, 157; Robinson v. Cone, 22 Vt. 213), is legally without fault, and it is immaterial whether his inability results from his absence, previous negligence, or other On the other hand, his neglect to prevent it, if he can, is the sole or co-operating cause of the injury. No one can justly complain of another's negligence, which, but for his own wrongful interposition, would be harmless. Parker v. Adams, 12 Metc.. (Mass.) 415." Nashua Iron & Steel Co. V. Worcester & N. R. Co., 62 N. H. 159, 163. No negligence on the part of the defendant is shown, other than the legal negligence of not seasonably turning to the right of the center of the highway. Whether the defendant's legal negligence, in violating the law of the road, rendered him liable to the plaintiff in damages, depends upon the termination of the question whether the injury could or could not have been avoided by the exercise of ordinary care by the plaintiff; whether it was or was not the legal cause of the injury. The fact that the defendant was violating the law of the road does not, as matter of law, warrant a recovery by the plaintiff. Damon v. Scituate, 119 Mass. 66, 68. If the parties were reversed, and the defendant was seeking damages from the plaintiff, the defendant's legal negligence, in disregarding the statute, would not necessarily, and as matter of law, defeat a recovery. Steele v. Burkhardt, 104 Mass. 59; Spofford v. Harlow, 3 Allen, 176. The question would still be, whose fault caused the collision? State v. Manchester & L. R. Co., 52 N. H. 528, 557. The fact that a party was acting in violation of law when an injury was done to his person or property by the wrongful act of another does not deprive him of his action for damages, unless the injury resulted from the unlawful act. Woodman v. Hubbard, 25 N. H. 67; Norris v. Litchfield, 35 N. H. 271, 277; Nutt v. Manchester, 58 N. H. 226; Sewell v. Webster, 59 N. H. 586; Wentworth v. Jefferson, 60 N. H. 158; Lyons V. Child, 61 N..H. 72; Welch v. Wesson, 6 Gray, 505. The statute required the defend ant to seasonably turn to the right of the center of the traveled part of the road, so as to enable the plaintiff "to pass with his vehicle without interference." Gen. Laws, c. 75, § 11. As the street at the place of the collision was of ample width to allow the plainti tiff to pass the defendant's team without interference, it is apparent that the defendant's failure to turn to the right of the center of the highway was not the legal cause of the collision. Judgment for the defendant. SMITH, J.. did not sit. The others concurred. BROWN v. ELA. (Supreme Court of New Hampshire. Merrimack. March 11, 1892.) PROVISION IN LEASE-DIVISION OF CROP-EFFECT CONVERSION-WHAT CONSTITUTES-EXERCISE OF DOMINION. 1. Where défendant leased his farm to equally divided between them, but spent on plaintiff, agreeing that the hay crop should be the farm; evidence that such division was afterwards made and recognized will support a finding that plaintiff was the owner of one-half of said hay crop, subject to the restriction that it (or its equivalent) should be spent on said farm. 2. Where defendant directed his employé to feed his cattle with hay belonging to plaintiff, which was on defendant's farm, and the employé made such use of a part of the hay, defendant was guilty of a conversion of it all. Exception from Merrimack county. Action by Samuel P. Brown against George W. Ela in trover. To the report of the referee, defendant excepts. Affirmed. Trover for 12 tons of hay. Facts found by a referee. In the spring of 1886 the defendant leased to the plaintiff by parol his farm in Allenstown, for the term of five years from April 1, 1886. It was a part of the agreement that the hay crop be divided equal- . ly between the parties, but to be spent on the farm, the plaintiff having the right to sell a portion of his share, provided he should put an amount of fertilizers on the farm equal to the amount which the hay sold would make, or should bring to the farm an equivalent in feed for the hay sold. The lease was terminated at the end of a year, by mutual consent, and the plaintiff left the premises. In October, 1886, the hay was divided by the plaintiff with the knowledge of and without objection from the defendant, who, after the division, recognized it; and the plaintiff thereby became the absolute owner of a divided half, subject to the restriction that it be fed out upon the farm. When the plaintiff left the farm, he left 12 tons of hay, part of his half, which he attempted to sell, to be used off the farm. The defendant declined to assent to the sale, and, after the plaintiff left, instructed his employé to feed his cattle from the plaintiff's hay. A portion of it was fed out to the defendant's stock, and the balance, with the barn, was burned, in September, 1887. Upon the foregoing facts, the |