duct of other horses in the same or a similar situation may be shown. Darling v. Westmoreland, 52 N. H. 401. It cannot be presumed that all men are so familiar with the conduct of horses when in the vicinity of and in different relative positions from a moving train that they can derive no information on the subject from the opinion of a witness expert in the use and management of horses in such situations. Barnes v. Heath, 58 N. H. 196; Donnelly v. Fitch, 136 Mass. 558; Clinton v. Howard, 42 Conn. 295. Exceptions overruled.

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

CARPENTER v. FISHER et al. (Supreme Court of New Hampshire. Merrimack. July 31, 1896.)

INJUNCTIONS-DAMAGES-ACTION ON BOND.

1. A prevailing defendant cannot prosecute an action on a preliminary injunction bond before the damages to which he is entitled have been determined in the injunction suit, where there is no reason for sending the question of damages to a jury.

2. An action against sureties on an injunction bond will be continued until the amount of damages has been determined in the suit where the bond was filed, and it appears that plaintiff cannot collect such damages of the principal.

Debt by Frank O. Carpenter against Horace N. Fisher and others on an injunction bond. Facts agreed. The bond was given under the thirty-sixth rule in chancery in a suit in equity brought by Fisher against Carpenter in the supreme court for Grafton county. It was executed by Fisher as principal and by the defendants Hill and Chandler as his sureties. The sureties are citizens of this state. The writ was served upon them, and they appear by counsel. Fisher is a citizen of Massachusetts, and since 1876 has been, and now is, the consul of the republic of Chili in Boston, and has been officially recognized as such by the president of the United States. At the date of the writ he had attachable real and personal property in this state, but the writ was not served upon him, and no attachment of his property was made. He appears specially for the purpose of moving, or joining with the defendants in moving, that the action be dismissed for want of jurisdiction. Case discharged.

E. A. & C. B. Hibbard, for plaintiff. Burleigh & Adams and Thomas H. Talbot, for defendants.

CARPENTER, C. J. As a general rule, equity, having acquired jurisdiction of a cause, disposes of all questions the decision of which is necessary to its final determination. Eastman v. Bank, 58 N. H. 421; Moody v. Lucier, 62 N. H. 584, 587, 588. The question of the amount of damages caused to a prevailing defendant by a preliminary injunction is incidental to the principal issues. It is to be determined upon equitable principles, in view of

all the circumstances of the case. In an investigation of the merits, all or nearly all the evidence affecting the damages is heard and considered. Neither party has a right to a trial of the question by the jury. Such a trial might, and in many cases would, involve a retrial of the entire cause. The parties should not be subjected to this needless expense. Although, in a few instances, the question of the amount of the damages has been submitted to the jury, or otherwise determined in an action at law on the bond, it has been for the reason that neither party objected, and the attention of the court was not called to the subject. Bank v. Heath, 45 N. H. 524; Towle v. Towle, 46 N. H. 431; Solomon v. Chesley, 59 N. H. 24; Jackman v. Eastman, 62 N. H. 273; Gage v. Porter, 64 N. H. 619, 15 Atl. 147. Generally, the court that hears the principal cause has, if requested, determined the question. It is the proper practice. In an action at law on the bond the parties are entitled to trial by jury if the damages claimed exceed $100. Trials by jury are expensive to the public. One object of the amendment of the constitution adopted in 1877 depriving parties in civil actions of the right of trial by jury “in cases in which the value in controversy does not exceed one hundred dollars, and the title to real estate is not concerned" (Bill of Rights, art. 20), was to save the public expense of such trials in that class of cases. Since that time jury trials in those cases have not been allowed, though desired and moved for by both parties, except for special and extraordinary reasons. It does not appear that there is any reason for sending the question of damages in the present case to a jury. Upon the motion of either party the court that heard the cause would have determined what, if anything, Fisher should pay to Carpenter to indemnify him for the injury caused to him by the injunction. If, to obtain satisfaction of the amount adjudged due, an action on the bond should be necessary, no question, in the absence of fraud, would be open to the defendants, except that of its execution. Upon the motion of either party the original action may be brought forward, the question of Carpenter's damages determined by the court, and execution for the sum found his due be issued against Fisher. It does not follow that the present action was improvidently brought. It may be necessary to secure the payment of the judgment that may be rendered against Fisher. It will stand continued until the amount Fisher ought to pay is determined, and an execution for that sum is returned unsatisfied, or until it is otherwise made apparent that the plaintiff must rely for indemnity upon the obligation of the sureties. If any judgment that may be obtained against Fisher is satisfied, the question of the jurisdiction of the court in this action will not arise. Until it does arise, it need not be considered. To this suit Fisher is not a party. Whether, being interested in the result, and perhaps concluded, as between him and the defendants, by a judgment against

them, he has a legal right to appear, and raise the question of jurisdiction, or join with the defendants in raising it, or whether he may be lawfully refused permission to appear for that purpose (Reynolds v. Damrell, 19 N. H. 394; Kimball v. Wellington, 20 N. H. 439; Levy v. Woodcock, 63 N. H. 413; Martin v. Wiggin, 67 N. H., 29 Atl. 450), may or may not prove to be material questions. However that may be, the plaintiff has leave to strike his name. out of the writ. Case discharged. All concurred.

PARKER v. SELDEN et al. (Supreme Court of Errors of Connecticut. July 13. 1897.)

SALES-DELIVERY-CONSTRUCTION OF CONTRACTASSUMPSIT-PLEADING AND PROOF.

1. Where there is no time fixed for delivery of timber that a seller is to deliver "over the rail of a vessel," other than that it should be ready for "spring shipment," the purchaser is not bound to have a vessel ready until after reasonable notice from the seller.

2. A seller agreeing to deliver timber "over the rail of a vessel" must stand the loss of timber washed away by the tide, when deposited at the dock, where the purchaser was not remiss in sending a vessel.

3. "Spring shipment," within said contract, cannot extend beyond July 1st, as a matter of

law.

4. Plaintiff, suing on a written contract for the delivery of timber for spring shipment," cannot prove that the parties by their conduct extended the period of spring shipment, as it would be a parol contract different from the one alleged.

Hamersley, J., dissenting.

Appeal from superior court, New Haven county; John M. Thayer, Judge.

Action by Ralph L. Parker against John H. Selden & Son to recover damages for a breach of contract to purchase certain wood and timber. Tried to the court, facts found, and judgment rendered for defendants, and appeal by plaintiff for alleged errors in the rulings of

the court. No error.

Henry G. Newton, and Clifford Gilbert, for appellant. Edward H. Rogers and John M. Murdoch, for appellees.

ANDREWS, C. J. The plaintiff's cause of action was founded on the order contained in a letter from the defendants, as follows:

"Cobalt, Dec. 21, 1893.

"R. L. Parker, Esq.-Dear Sir: Please cut out and have ready for spring shipment the following order:

"3,000 horse R. R. ties, hewed 7 ft. long, 5 in. thick, and 5 in. face, at 14 each, to be chestnut and 1⁄2 oak.

"1,500 8 ft. chestnut posts at 8 cts. "2,000 10 ft. chestnut posts at 10 cts. "1,500 12 ft. chestnut posts at 15 cts. "These to be of live timber, and to be from 4 to 6 in. at top end.

"400 cords clear oak wood at 3.75.
"100 cords chestnut wood at $2.50.
"3,000 ft. 8 ft. 4x4 chestnut.
"3,000 ft. 10 ft. 4x4 chestnut.

"4,000 ft. 12 ft. 4x4 chestnut at 18.00. "All of the above order to be delivered over the rail of a vessel.

"Yours, truly,

John Selden & Son." The complaint, after mentioning the order, and alleging that the plaintiff received and accepted it, says: "(3) Defendants did not take said wood and timber as agreed, but neglected and refused to take or pay for the same, except as is hereinafter stated. (4) Defendants did not take any of said timber or wood until a long time after the same was ordered to be ready, and what they have taken has been taken in small quantities and at long intervals between July, 1894, and July, 1895. (5) The following wood mentioned in said order has never been taken or paid for by the defendants, to wit: 1,200 horse R. R. ties, 300 cords of oak wood, 100 cords of chestnut wood, 4,000 feet of 4x4 chestnut sticks. (6) Plaintiff has been to great trouble and expense in cutting and carting said wood, and a large amount of horse ties and oak wood which had been placed on the dock at the request of the defendants, ready for shipment, was, in consequence of the neglect of the defendants to send a vessel for the same for several months thereafter, carried away by the high tides and wholly lost; and defendants have called for the shipment of the different loads of wood taken by them at inconvenient times, many months after they should have taken the same, and thereby caused great expense to the plaintiff." The answer of the defendants admits the sending the said order and its acceptance by the plaintiff, and then goes on to say: "(3) As to paragraphs third and fourth, the defendants answer and say that they did not refuse to take the wood and timber as agreed, and that they took all thereof that the plaintiff had ready for spring shipment in compliance with said order, and paid the plaintiff therefor, but that the plaintiff failed to have ready for spring shipment a large quantity of the wood and timber called for in said order. (4) As to paragraph fifth, the defendants answer and say that they did not take any of the wood therein mentioned because the plaintiff did not have it ready for shipment as called for in said order. (5) Paragraph six is denied." These pleadings reduced the controversy of the parties substantially to this: What period of time was included within the expression "spring shipment?" The court found the issue for the defendants, and the plaintiff appeals.

The finding of facts is as follows: "(1) Immediately after the acceptance of the order (Exhibit A of the complaint) by the plaintiff, he began to cut the wood and timber therein mentioned, and before spring opened had a large quantity of the posts, ties, and wood piled upon the wharf at Guilford, so as to be ready for delivery upon boats when sent for the same. (2) On April 2, 1894, the defendants sent the plaintiff two letters of that date, copies of which are annexed hereto as Exhibits B and C. The posts and 4x4 chestnut therein mentioned were part of the lumber called

for in said Exhibit A. The white oak was not. The white oak was not. (3) The defendants sent the boat as stated in said letters, but on the voyage to Guilford she came in collision with a tugboat, and was damaged so that repairs were necessary; and she was taken into New London for such repairs, and could not and did not reach Guilford until May 11, 1894. The defendants in the meantime sent no other boat to Guilford, though immediately notified of the collision and damage aforesaid. (4) About April 11, 1894, the wharf at Guilford where the plaintiff had deposited his posts, ties, and lumber as aforesaid was submerged by an unusually high tide, and a large quantity of said ties, posts, and lumber was washed away and became lost. The exact number of posts and ties which had been placed upon the wharf at this time did not appear upon the trial, nor did it appear just how many were lost. But a sufficient number of neither to fill the order had been placed on the wharf. From the estimates of witnesses, I find that one thousand of each, approximately, were washed away and lost. (5) All the posts remaining upon the wharf on May 11, 1894, were delivered to the defendants on that day by the plaintiff, and taken away on said boat. (G) In consequence of the loss of ties, posts, and other lumber by said tide, and from other causes, the plaintiff at this time (May 11th) had ready for shipment none other of the articles called for by said Exhibit A, except about five hundred ties; and he did not during the spring of 1894 have ready for shipment the ties, posts, and other articles called for therein, and did not tender or offer to deliver said articles to the defendants, or notify them that he was ready to do so. (7) Said five hundred ties and some other articles of lumber the defendants received from the plaintiff in June, 1894. For all lumber mentioned in Exhibit A which the plaintiff delivered to the defendants they paid him in full the price mentioned therein. (8) Upon the trial the plaintiff claimed that by 'spring shipment,' in the contract (Exhibit A) was meant a period extending through the summer of 1894, and he offered evidence to prove that he had all the articles called for in the contract ready for shipment before the end of that period. To this evidence the defendants objected. The court sustained the objection, but stated to counsel that the evidence would be admitted if it should be shown that in this business the words had the meaning claimed, or that the defendant used them with that meaning. The plaintiff, in reply to a question by his counsel, said that he did not know that the words had the meaning claimed when used in the business, and could not say that the defendants had used them in that sense. The plaintiff duly excepted to the exclusion of the evidence as aforesaid. (9) The plaintiff claimed throughout the trial that he was entitled to show that after the summer of 1894 the defendant had, by letter, ordered from him lumber and wood of the same description as that in Exhibit A, for which they

had paid him the price therein agreed to be paid for similar articles, and that he had filled these orders from the stock which he had on hand in the summer of 1894, and that he was entitled to prove and recover as his damage from the defendants' failure to come for the lumber when ready the interest on the money which should have been paid when the lumber was ready for shipment, the expense and loss caused to him by the defendants taking the wood at inconvenient times, the value of the wood and ties which floated away, and the difference in value of the wood not taken at the commencement of this action and in the spring of 1894. The court did not so rule, but overruled these claims, and upon objection excluded a great number of questions asked for the purpose of proving said facts and such elements of damages. To all these rulings the plaintiff's counsel duly excepted. (10) The court found the issue for the defendants, and rendered judgment in their favor, as on file."

The order fixed no time or times when the wood and timber were to be delivered to the defendants and paid for by them. They were therefore deliverable over the rail of such vessel as the defendants, on reasonable notice, should send to receive them. The title therefore remained, so long as it was on the dock, in the plaintiff, and so the loss of that which was carried away by the tide fell on him. This happened about the 11th day of April, 1894. There is no averment in the complaint that the defendants were remiss in sending a vessel at that time. Every other item in respect to which the plaintiff claimed to recover damages was for something which happened after July 1, 1894. If the period for "spring shipment" named in the order did not extend beyond the 1st day of July, 1894, the defendants could not be made liable for these items under the order. It was for this reason that the plaintiff claimed that by "spring shipment," in the order, was meant a period extending through the summer of 1894. This expression might be held to mean just what the calendar names as the spring months, viz. March, April, and May, or there might be given to it a somewhat more popular meaning, as the period when vegetation began to put forth, and extending in this latitude from about the middle of March to about the middle of June. But there is no meaning which can be given to it which, as matter of law, could make it extend beyond the 1st of July. It was undoubtedly competent for the plaintiff to show by evidence that this expression had in this business the meaning which he claimed for it (Smith v. Phipps, 65 Conn. 302, 32 Atl. 367), or that it was used by the parties in this contract with that meaning (In re Curtis & Castle Arbitration, 64 Conn. 501, 30 Atl. 769). The plaintiff offered no evidence to prove either of these conditions, and offered no evidence to show that it had such meaning. The plaintiff did offer evidence which he claimed would prove that the parties (defendants and plaintiff) had by their conduct extended the pe

The court (Thayer, J.) charged the jury as follows: "The plaintiff in this action sues to recover from the defendant money paid as premiums on the Cannon policy, which is in evidence, under the mistaken belief, as she says, that the policy was valid and binding on the defendant, when in fact, as she alleges, it had no legal existence as a valid policy. The claim is based upon the proposition of law that the insurance premium paid to an insurance company is a compensation for the risk run upon the insurance policy, and that if a policy is invalid at its inception, or had no real existence, the company renders no equivalent for the premiums paid, and has no right to receive the same, and, even if received, it is its duty to return them to the person paying. This is a correct statement of the law, as is also the further proposition of the plaintiff that, while the law does not allow a person to take out an insurance upon the life of another if he has no interest in that life, it is yet perfectly lawful and proper for a person to take out an insurance on his own life, and make such insurance payable to a third party, whether that party has an interest in his life or not, and this may be done as act of gratitude, or as a mere gratuity to the beneficiary. He may also take out such insurance, and have it assigned, if he sees fit, to a third party; and it is perfectly proper for such third party, under these circumstances, to pay the premiums and keep the insurance alive. The plaintiff claims that she had a perfect right to become the beneficiary under the policy of Mrs. Cannon, or the assignees of that policy from Mrs. Cannon, provided it was a valid policy legally issued to Mrs. Cannon upon her application, and had the right to pay the premiums and keep the policy alive for her own benefit. And this is true, provided the transaction was entered into in good faith, and not as a cover for a wagering or speculative contract, which the law condemns. The plaintiff claims that she was led by the defendant to believe that the Cannon policy was a valid policy, and in good faith, in that belief, paid the premiums sued for, and that she was in fact mistaken in this belief, and that the policy never had a legal existence and validity. It becomes a question, therefore, whether the Cannon policy ever took effect as a binding contract, or whether, as the plaintiff alleges, it had no legal existence as a valid policy. If the policy took effect as a valid policy, so that the defendant became liable for the risk, the plaintiff cannot recover in this action. In that case the defendant, having sustained the risk, may retain the

er the policy took effect as a valid policy is a question of law, depending upon the facts; but as the facts bearing upon this part of the case, as proved by the plaintiff, are undisputed, it becomes practically a case for the court to decide, and the jury will be relieved from any serious consideration of the evidence in the case. The evidence is uncontradicted that Ellen Cannon duly applied for the policy of insurance here in question, and that the application was duly received by the defendant, and the policy made or issued by it. It would seem from the application that the first premium of one dollar and twenty cents was advanced by Mrs. Cannon at the time the application was made; but, however that may be, it is proved and not denied that the policy was tendered to Mrs. Cannon, and that the premiums were all paid up to the time that the plaintiff attempted to surrender the policy; that two or three years prior to such attempted surrender the plaintiff or her husband wrote the letter Exhibit E, or sent it to the defendant's president; that he received the same; and that thereafter the defendant continued to receive premiums from the plaintiff on account of this policy. These facts being proved and uncontradicted, the defendant was bound by the policy; and the plaintiff, though she acted in entire good faith in taking the policy and in advancing the premiums, which the defendant denies, cannot recover in this action. This being the case, the question whether Mrs. Hogben acted in good faith in taking the policy, or took it as a mere speculation upon the life of Mrs. Cannon, becomes unimportant to be considered. This question, which would have been a question within the province of the jury to determine, had it not become unimportant, being eliminated from the case, it be comes your duty to render a verdict for the defendant. You may therefore retire and prepare such verdict, and return it to court." The jury, not returning a verdict, were recalled by the court, and further instructed as follows: "It was the intention of the court to make it clear that, on the admitted facts in this case, that the plaintiff could not recover, whatever the facts might be with reference to the great issue that was contested here,-most of the examination of the witness was occupied in attempting to prove or disprove. That being so, it became the duty of the court to instruct the jury that their verdict should be for the defendant; and, of course, it became the duty of the jury, under those circumstances, to return such a verdict. I therefore ask you to retire again, and return the verdict directed." The appeal assigns error in the court's direction to the jury to return a verdict for the defendant.

Talcott H. Russell, for appellant. Henry Stoddard and Roger S. Baldwin, for appellee.

HAMERSLEY, J. (after stating the facts). The undisputed facts do not necessarily estab