ble to say that the evidence is so conclusive YOUNG, J. If the availability of the that all fair-minded men must come to that con- plaintiffs' farm for a summer boarding house clusion, the question whether he ought to have known of such condition and appreciated the made it more valuable than it otherwise risk incident thereto was properly submitted would have been, it was proper for the jury to the jury. to consider that fact; for the measure of [Ed. Note.-For other cases. see Master and the plaintiffs' damages is the difference in Servant, Cent. Dig. §§ 1072-1077; Dec. Dig. 8 the value of their farm before and after 288.*] Transferred from Superior Court, Merrimack County; Stone, Judge. Action on the case for personal injuries by Clinton D. Craig against Charles A. Wilkins. There was verdict for plaintiff. Defendant's motion for a directed verdict, on their meadow land was flowed. Defendants' exception overruled. All con curred. KNAPP v. GUYER. Dec. 7, 1909.) the ground that it conclusively appeared (Supreme Court of New Hampshire. Grafton. that plaintiff assumed the risk, having been denied subject to exception, the cause was transferred from April term, 1909. Exceptions overruled. 1. TROVER AND CONVERSION (§ 4*) - TITLE — RIGHT OF POSSESSION-INTERFERENCE. B., who was in financial difficulties and desiring to purchase certain potatoes, arranged Martin & Howe for plaintiff. Streeter & with defendant to have them shipped in defendHollis, for defendant. YOUNG, J. Notwithstanding it could be found that the plaintiff ought to have known of the slippery condition of the floor on which he fell, it cannot be said that the evidence is so conclusive that all fair-minded men must come to that conclusion. Therefore, the question whether the plaintiff ought to have known of this condition of the floor, and appreciated the risk incident thereto, was properly submitted to the jury. Exceptions overruled. All concurred. PHILBROOK et al. v. BERLIN-SHELBURNE POWER CO. (Supreme Court of New Hampshire. Coos. Dec. 7, 1909.) 1. EMINENT DOMAIN (§ 141*)-MEASURE OF DAMAGES. The measure of damages, under the flowage act, was the difference in value of petitioner's farm before and after his meadow land was flowed. [Ed. Note.-For other cases, see Eminent Domain, Cent. Dig. §§ 372-376; Dee. Dig. § 141.*] 2. EMINENT DOMAIN (§ 107*)-MEASURE OF DAMAGES. The availability of petitioner's farm for a summer boarding house might be considered by the jury in determining his damages because of the flooding of a portion of the farm. [Ed. Note. For other cases, see Eminent Domain, Dec. Dig. § 107.*] ant's name, but defendant gave him no authority to purchase the potatoes in his name, nor did he derive any benefit from the transaction. B. purchased the potatoes of plaintiff as defendant's ostensible agent, paid part of the price, and diOn rected that they be shipped to defendant. their arrival, B. procured from defendant an order directing the carrier to deliver the potatoes to B., which was done, when they were immediately attached by B.'s creditors. Held, that plaintiff, under such circumstances, did not sell the potatoes either to defendant or B., and, never having parted with the title or right to possession, defendant's act in directing the carrier to deliver the potatoes to B., though innocent, constituted a conversion, for which he was liable. [Ed. Note.-For other cases, see Trover and Conversion, Cent. Dig. § 25; Dec. Dig. § 4.*] 2. TROVER AND CONVERSION (§ 3*)-ELEMENTS -INTENT. Defendant's intent is not an element of a right of action for wrongful interference by defendant with plaintiff's property alleged to constitute a conversion. [Ed. Note.-For other cases, see Trover and Conversion, Cent. Dig. §§ 21-24; Dec. Dig. § 3.*] 3. TROVER AND CONVERSION (§ 9*)-DEMAND. 3. TROVER AND CONVERSION (§ 9*)-DEMAND. Where defendant's original act in asserting ful, no demand was necessary to entitle plaindominion over plaintiff's property was wrongtiff to sue for conversion. [Ed. Note.-For other cases, see Trover and Conversion, Cent. Dig. §§ 58-83; Dec. Dig. § 9.*] Transferred from Superior Court, Grafton County; Chamberlin, Judge. Action by Albert Knapp against A. W. Guyer for a conversion of 5,875 pounds of potaTransferred from Superior Court, Coos toes. Judgment for plaintiff, after which the County; Chamberlain, Judge. case was transferred to the Supreme Court. Affirmed. Petition by Charles E. Philbrook and another against the Berlin-Shelburne Power Company for the assessment of damages under the flowage act. Transferred from the superior court on defendants' exceptions. Exceptions overruled. Alfred R. Evans, Drew, Jordan, Shurtleff & Morris, and Enoch Foster, for plaintiffs. Branch & Branch, Sullivan & Daley, and Anthoine & Talbot, for defendants. The plaintiff is a farmer at Piermont, and the defendant is a merchant at Hanover. In May, 1908, W. E. Blood, an innkeeper at Hanover, was in financial difficulties. He desired to purchase 100 bushels of potatoes, intending to use most of them himself and to sell the remainder, and arranged with the defendant for the shipment of potatoes to Hanover in the latter's name. Blood called at At any rate, the purpose or intention of the defendant would become material only when the act done would not in itself imply an assertion of title or right of dominion. Evans v. Mason, 64 N. H. 98, 99, 5 Atl. 766. The original act of the defendant in asserting dominion over the property being wrongful, a demand was not necessary. Porell v. Cavanaugh, 69 N. H. 364, 366, 41 Atl. 860; Farley v. Lincoln, 51 N. H. 577, 581, 12 Am. Rep. 182; Bartlett v. Hoyt, 33 N. H. 151, 169. the plaintiff's farm, purchased 100 bushels, N. H. 577, 579, 12 Am. Rep. 182. of potatoes, informed the plaintiff that the purchase was for Guyer, paid $10, and took a receipt therefor in his own name, and directed that the potatoes be billed to the defendant. Shipment was made in accordance with Blood's instructions. When the potatoes arrived at their destination, the station agent notified the defendant, who replied that he was not expecting potatoes, and did not know about them. Shortly thereafter Blood called at the station and inquired for the potatoes, and was informed that they were billed to the defendant. He thereupon left the station, but soon returned with an order written and signed by the defendant, directing the delivery of the potatoes to Blood. The order was complied with and Blood took possession of LEDOUX v. HUDSON, P. & S. ELECTRIC the potatoes, which were immediately attached by his creditors and held for his (Supreme Court of New Hampshire. Hillsbordebts. Blood had no authority from the defendant to purchase potatoes in his name, and the latter derived no benefit from the transaction. He merely acted for the accommodation of Blood, and permitted the shipment of potatoes as above stated. Hosford & Wright, for plaintiff. Scott Sloane, for defendant. BINGHAM, J. It is clear from the facts found that the plaintiff did not sell the property in question to the defendant, although he billed it to him upon the representation of Blood that the defendant was the purchaser. It is equally clear that he did not sell it to Blood, and that in delivering it to the railroad billed to the defendant he parted with the possession, but not with his title and right of possession. Having the title and right of possession at the time that the defendant gave the order to the railroad to deliver the property to Blood, the order was an act in itself implying an assertion of title or right of dominion over the property, inconsistent with the plaintiff's title and right of possession, and was in law a wrongful act and a conversion. Brown v. Ela, 67 N. H. 110, 111, 30 Atl. 412; Baker v. Beers, 64 N. H. 102, 105, 6 Atl. 35; Evans v. Mason, 64 N. H. 98, 99, 5 Atl. 766. If the defendant could be said to have honestly mistaken his rights, that fact would be of no consequence in this case. "The defendant's act in assuming dominion over the property was none the less an invasion of the plaintiff's right * * because he did not intend a wrong, or know that he was committing one. An encroachment upon a legal right must constitute a legal wrong; and it is familiar law that intention is of no account in a civil action brought by one man to recover damage for a wrongful interference with his property by another. The law gives the plaintiff compensation for the injury he has sustained, whether the defendant intended such injury or not." Farley v. Lincoln, 51 Exception overruled. All concurred. RY. CO. ough. Dec. 7, 1909.) 1. STREET RAILROADS (§ 93*)-CARE AS TO PERSONS CROSSING TRACK. As against one run over by an electric car, it was negligence for the operatives thereof not to have stopped it as soon as they reasonably might after it was apparent that plaintiff intended to cross the track. [Ed. Note.-For other cases, see Street Railroads, Cent. Dig. § 197; Dec. Dig. § 93.*] 2. STREET RAILROADS (§ 117*)-CROSSING ACCIDENTS CONTRIBUTORY NEGLIGENCE QUESTION FOR JURY. Where, in an action for injuries while crossing an electric railway track, it appeared that plaintiff looked at the clock before starting and learned that it was past car time, that she was quite deaf, and before starting to cross the track looked and saw no car, and that unless it had been running at an unusual speed she could have crossed in safety, she was entitled to go to the jury. [Ed. Note.-For other cases, see Street Rail roads, Cent. Dig. §§ 249, 255-257; Dec. Dig. § 117.*] Transferred from Superior Court, Hillsborough County. Pelham & Salem Electric Railway Company. Action by Julia Ledoux against the Hudson, Transferred from the superior court on defendant's exceptions to the denial of a motion for a nonsuit and to the refusal of requested instructions. Exceptions overruled. quested instructions. Doyle & Lucier (Mr. Lucier, orally), for plaintiff. Samuel W. Emery, for defendant. PEASLEE, J. The negligence of the defendants consisted in not stopping a swiftly moving electric car as soon as they reasonably might after it was apparent that the plaintiff was intending to cross the track at a level crossing. The case is distinguished from Waldron v. Railroad, 71 N. H. 362, 52 Atl. 443, by the fact that here there is evidence that the motorman knew or ought to have known that a foot traveler was about to go upon the track. The plaintiff's case as to her own care rests upon two propositions. She looked at her clock before starting out and learned it was past car time. She was quite deaf, and before going upon the crossing looked up the track and saw no car coming; and unless it had been running at an unusual rate of speed she could then have crossed in safety. Either ground was sufficient to permit her to go to the jury. State v. Railroad, 52 N. H. 528, 558; Nutter v. Railroad, 60 N. H. 483. The exceptions to the refusal of instructions have not been argued, and are apparently abandoned. Exceptions overruled. All concurred. STATE v. BUCKLEY. SAME v. PICKFORD. (Supreme Court of New Hampshire. Coos. Dec. 7, 1909.) 1. CRIMINAL LAW (§ 982*) - SUSPENSION OF SENTENCE. On a plea of guilty, the court had power to suspend the part of the sentence which provided for imprisonment either for a definite or indefinite time, and to direct that a mittimus should issue only on the call of the solicitor. YOUNG, J. The defendants contend that, notwithstanding the court may have common-law jurisdiction to suspend sentences in some cases (4 Bl. Com. 394), it cannot legally suspend either the imposition or the execution of a sentence for an indefinite time. Although that may be the law in some states, it is not the view which obtains here; for this court holds that it may at the request of the defendant suspend either the imposition (Philpot v. State, 65 N. H. 250, 20 Atl. 955) or the execution of a sentence (Sylvester v. State, 65 N. H. 193, 20 Atl. 954), for either a definite (Ex parte Howard, 17 N. H. 545) or an indefinite time (Sylvester v. State, supra; Philpot v. State, supra). The court, therefore, had power to make the part of the order complained of; but if that were not the fact it would not authorize the discharge of the defendants. Concede that the court had no authority to suspend the defendants' sentences, and the fact still remains that it had power to impose them; and, as the two parts of the order are separate and distinct, the illegality of the last part would in no way affect the validity of the first part. Sylvester v. State, [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 2500; Dec. Dig. § 982.*] 2. CRIMINAL LAW (§ 982*)-SENTENCE-SUS- supra. That is, if the part of the court's or PENSION. Laws 1903, p. 123, c. 122, § 3, providing der complained of were illegal, the part of that sentence can be satisfied only by the actual which no complaint is made would still be suffering of the imprisonment imposed unless re- valid, and it would be the duty of the court mitted by death or some legal authority, does to enforce it; for, as was said in a recent not purport to confer an authority on the court case (Petition of Moebus, 73 N. H. 350, 352, to suspend sentence, but merely limits the court's common-law power to do so, so that the 62 Atl. 170, 171), "the sentence of the law is part of a sentence providing for its suspension to be satisfied only by the actual suffering of in the discretion of the solicitor, even if inval- the imprisonment imposed, unless remitted id, would not invalidate so much of the sentence as imposed the imprisonment, which would by death or by some legal authority." Secnot be satisfied nor affected by the expiration tion 3, c. 122, p. 123, Laws 1903, does not purof the time for which relators were sentenced port to confer authority on the court to suswithout their actually suffering the punishment pend sentences, but merely limits the court's imposed. [Ed. Note. For other cases, see Criminal see Criminal exercise of its common-law power in cases of Law, Cent. Dig. §§ 2500, 2501; Dec. Dig. this kind. 982.*] Although it is true that if the defendants Exceptions from Superior Court, Coos Coun- had been committed to jail at the time their ty; Plummer, Judge. Habeas Corpus. On petition of Alfred E. Buckley and Patrick I. Pickford. In the superior court relators' petitions were dismissed, and they bring exceptions. OverOverruled. At the April term, 1908, of the superior court, both defendants were indicted for vio lating section 15, c. 112, Pub. St. 1901. The county solicitor agreed that if they would plead guilty that part of the sentences which required their imprisonment might be suspended. The court so far ratified the agreement as to attach to each sentence the memorandum, "Mittimus to issue at call of said solicitor." The solicitor called for the mittimuses in April, 1909, and when the defendants were arrested they filed these petitions. sentences were imposed they would long since have executed them, that fact furnishes no legal reason for their discharge. They were legally sentenced to be confined in jail for 60 days. "Neither the date of its commencement nor its expiration is fixed by the Mass. 219, 222); and they have not suffered terms of the sentence" (Dolan's Case, 101 suffer it; for, as has been seen, that is the the imprisonment. Consequently they must only way a legal sentence can be satisfied. Defendants' exceptions overruled. All con curred. McCONNELL v. McCONNELL et ux. (Supreme Court of New Hampshire. Merrimack. Dec. 7, 1909.) Bernard Jacobs, for the State. Sullivan 1. INFANTS (§ 50*)-CONTRACTS-NECESSARIES. Notwithstanding Pub. St. 1901, c. 177, § & Daley and Drew, Jordan, Shurtleff & Mor-25, providing that no contract of any nature ris, for defendants. whatever made by a person under guardianship shall be valid, a minor under guardianship, who received food and lodging for herself and child on the understanding that the necessaries should be paid for, was liable for their reasonable value. [Ed. Note. For other cases, see Infants, Cent. Note.-For Dig. §§ 115, 125; Dec. Dig. § 50.*] WALKER, J. It is argued that the court erred in allowing, by way of set-off, the defendants' account for the board of the plaintiff and her children while she was a minor, because during that time she was under guardianship. This contention is based upon 2. APPEAL AND ERROR (§ 907*)-PRESUMP-a strict and literal construction of section 25, TIONS. Where, on exceptions, the existence of a fact is involved in the general findings of the court, and the competency of the evidence to show such fact is not questioned, its existence must be assumed, unless the contrary appears. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 3673; Dec. Dig. § 907.*] 3. HUSBAND AND WIFE (8 23*)-AGENCY FOR HUSBAND-CONTRACT OF WIFE. A married woman's promise to pay for lodging and board for herself and child was not invalid as an undertaking on her husband's behalf within Pub. St. 1901, c. 176, § 2, rendering such an undertaking not binding on the wife. [Ed. Note.-For other cases, see Husband and Wife, Cent. Dig. § 142; Dec. Dig. § 23.*] 4. WORK AND LABOR (§ 7*)-IMPLIED PROMISE-FAMILY RELATION. The fact that one was a daughter-in-law of those with whom she resided, did not preclude an implied promise on her part to pay the reasonable value of her board and lodging. [Ed. Note. For other cases, see Work and Labor, Cent. Dig. § 18; Dec. Dig. § 7.*] Transferred from Superior Court, Merrimack County; Chamberlin, Judge. Writ of entry for the foreclosure of a mortgage by Ola McConnell against Robert McConnell and wife. Transferred from the superior court on plaintiff's exceptions. Exceptions overruled. The issue tried related to the validity of the defendant's set-off, in which the plaintiff was charged for the board of herself and children for a period of two years and two months. The plaintiff's husband is the defendants' son. In March, 1902, she went with her child to the defendants' home and and remained there until June, 1904. She became 21 years of age on April 29, 1904, when the note and mortgage in suit were turned over to her by her guardian. When she went to the home of the defendants nothing was said about her board; but both before and after she became of age the matter of the board of herself and children was mentioned several times. After she became of age she told the defendants they might apply the board upon the mortgage debt. There was no agreement between the parties as to the price of the board. The plaintiff did some work in the defendants' home that was of some value. The plaintiff's husband is not financially responsible, and the defendants never looked to him for the board, but gave credit to the plaintiff. The court found that the plaintiff was liable for the reasonable price of the board, and allowed the set-off to that extent, and the plaintiff excepted. Almon F. Burbank, for plaintiff. Martin & Howe and Joseph A. Donigan, for defendants. c. 177, Pub. St. 1901, which provides that "no contract of any nature whatever, made by a person under guardianship, after the appointment and during the continuance of the guardianship, shall be valid in law." But as the court remark in McCrillis v. Bartlett, 8 must have a reasonable construction. It canN. H. 569, 571, "this provision of the statutes not have been intended to render invalid all implied contracts; for such construction might expose the party to actual suffering for the necessaries of life, or oblige the town to maintain him and his family as paupers for a time, when he had ample means for their support, and thus produce the very mischief it was intended to prevent. And we are of opinion that it cannot be construed to prevent the party from binding himself for necessary expenditures, by an implied contract, although a note, or special contract for price or time of payment, would come within its prohibition." This construction of the statute was referred to with approval in Young v. Stevens, 48 N. H. 133, 137, 2 Am. Rep. 202, 97 Am. Dec. 592, where it is said: "In McCrillis v. Bartlett, 8 N. H. 569, it has been settled that, although the statute may avoid the contracts of spendthrifts for their protection, yet at the same time it does not avoid their implied contracts or liabilities for necessaries." As the statute was evidently enacted for the protection of wards against their improvidence, the legislative purpose, as explained more than 70 years ago, cannot now be overcome by technical reasoning based on verbal refinement. Having received food and lodging from the defendants with the understanding that the necessaries thus furnished should be paid for, and not deemed a gift, the plaintiff became bound by an implied promise to pay the defendants what the accommodation was reasonably worth. The fact that she was under guardianship did not deprive her of any legal ability she otherwise had to provide for her reasonable sustenance. Although she was a minor, it is not claimed that the common law relating to minors prevents them from incurring obligations by implication of law which inure to their benefit. Hall v. Butterfield, 59 N. H. 354, 47 Am. Rep. 209. Such an obligation she incurred to the defendants and ratified it after becoming of age, unless for some reason, not already considered, she did not as a matter of law incur that liability. The facts reported necessarily imply a finding, and are based upon the fact that, under the circumstances attending her situation, the food and lodging furnished her by Whether there is a distinction in law between her liability for the board of her children and that of herself, which is material in this case, is a question that does not appear to have been considered at the trial; and, as it has not been argued by her in this court that such a distinction exists, it is presumed that she did not desire to litigate that question. Exceptions overruled. All concurred. ATTORNEY GENERAL ex rel. WEST v. the defendants were necessary. This fact | for her board, or to become liable therefor is involved in the general finding; and as by her ratification after becoming of age. the competency of the evidence to support such a finding is not questioned, its existence as a fact must be assumed, upon the general principle that a verdict is presumed to be supported by the evidence unless the contrary appears; or, as otherwise stated, that the excepting party must show that it is unsupported as a legal deduction from the evidence. Concord Coal Co. v. Ferrin, 71 N. H. 331, 51 Atl. 283, 93 Am. St. Rep. 496; Wheeler v. Stock Exchange, 72 N. H. 315, 319, 56 Atl. 754; Busher v. Insurance Co., 72 N. H. 551, 553, 58 Atl. 41. This finding effectually disposes of the plaintiff's claim that, since her husband was bound to support her, her promise was not "binding on her," be cause it was "an undertaking by her for him or in his behalf," within the meaning of section 2, c. 176, Pub. St. 1901. Whether the defendants might have furnished board for her on his credit is not the question (Walker v. Laighton, 31 N. H. 111), for the fact is that they did not; they make no claim against him therefor, and may have been unwilling to board her on his credit. It follows that her promise was not an undertaking in his behalf. He was not liable to the defendants for her board. Hill v. Goodrich, 46 N. H. 41. The statute "was not intended to preclude the wife *** from contracting for necessaries for herself and family, although the duty of supplying them rests by law upon the husband." Parsons v. McLane, 64 N. H. 478, 479, 13 Atl. 588; Iona Savings Bank v. Boynton, 69 N. H. 77, 39 Atl. 522; Ott v. Hentall, 70 N. H. 231, 235, 47 Atl. 80, 51 L. R. A. 226. The plaintiff makes the additional contention that no promise on her part can be implied because of the family relationship existing between her and the defendants; or in other words, that the board was furnished gratuitously. Although she was a daughter-in-law of the defendants, it does not appear that she was a member of their family, sharing in "the mutuality of the benefits rendered and received by the members of a single family." Page v. Page, 73 N. H. 305, 61 Atl. 356. The finding of the court is that she was a boarder, which rebuts any inference or presumption that she sustained a family relationship to the defendants, in consequence of which they supplied her with food gratuitously; for there is no inconsistency in the finding that she was both a daughter-in-law and a debtor of the defend ants. And, so far as appears, the evidence was sufficient to support the finding that her status was that of a debtor. The facts that she was a minor, that she was under guardianship, and that she had a husband do not establish her incapacity as a matter of law to be bound by an implied promise to pay (Supreme Court of New Hampshire. Merri 1. ELECTIONS (§ 194*)-MARKING BALLOTS STATUTES. Laws 1897, c. 78, § 10, providing that the ballot shall be printed on plain white paper, to designate one ballot from another, has no apand that there shall be no impression or mark plication to alleged distinguishing marks placed on the ballot by the voter. [Ed. Note.-For other cases, see Elections, Cent. Dig. §§ 166, 167; Dec. Dig. § 194.*] 2. ELECTIONS (§ 194*) - BALLOTS - DISTINGUISHING MARKS. Laws 1897, c. 78, regulating elections, con- Cent. Dig. §§ 166, 167; Dec. Dig. § 194.*1 REPEAL. Pub. St. 1891, c. 33. § 29. prohibiting a voter from placing any distinguishing mark on his ballot. was repealed by Election Law (Laws 1897, c. 78), § 21. [Ed. Note.-For other cases, see Elections, Cent. Dig. § 137; Dec. Dig. § 161.*] 4. ELECTIONS (§ 194*) - BALLOTS DISTIN GUISHING MARKS. A ballot marked with a cross above the party column but below and a little to the left of the circle at the head of the column should not be regarded as containing a distinguishing mark, but was a substantial compliance by the by placing a cross in the circle at the head of voter with the requirement that he may vote the party column. [Ed. Note.-For other cases, see Elections, Cent. Dig. §§ 166, 167; Dec. Dig. § 194.*] 5. ELECTIONS (§ 180*)-MARKING BALLOTSSTATUTES. Laws 1897, c. 78, in so far as it provides that a voter may prepare his ballot by placing a cross in the circle at the head of the column bearing his party name or designation, or in the square opposite the name of the candidate of his choice, is not mandatory. [Ed. Note.-For other cases, see Elections, Cent. Dig. §§ 151-157; Dec. Dig. § 180.*] 6. ELECTIONS (§ 239*)-DEFECTIVE BALLOTS INTENTION OF VOTER. that if, for any reason. a disagreement occurs Under Laws 1897, c. 78, § 18, providing among those present at the counting of ballots as to the voter's choice, and a majority of those present decide that it is impossible to determine the voter's choice, for a particular office. his ballot shall be regarded as defective and shall not be counted with reference to that of |