proof of the former marriage is required to overcome this presumption. In this case the question of the alleged prior marriage between the accused and another woman was not submitted to the jury; but assuming the existence of the alleged former marriage, yet the subsequent marriage between the accused and the prosecuting witness though unlawful established the relation of husband and wife within the purview of the statute. The marriage solemnized in this case entitled the woman, and women like situated, to the protection afforded by the statute. It is the opinion of the court, under the facts of the case, that a new trial should be denied, and that judgment of the court should follow the verdict. The motion is denied. (78 N. H. 235) "The buyer or his agents or assigns had the privilege of placing a portable mill upon the sawed lumber to be removed on or before June lumber lot and sticking lumber thereon; all 1, 1913." No mill was erected. The defendant's claim is that by the terms of the deed he had the right to draw the logs off prior to June 1, 1913, unsawed; fendant did not have the right to move unwhile the plaintiffs contend that the de sawed lumber after December 31, 1912. The court found that the parties did not intend that the defendant had the right to cut any timber after December 31, 1912; that he might remove all that had been cut, whether sawed or unsawed, before January 1, 1913; and that all of the unsawed lumber remaining on the premises January 1, 1913, became the property of the plaintiffs. To this construction of the deed the defendant excepted. Oscar L. Young and Owen & Veazey, all of Laconia, for plaintiffs. Bertram BlaisBelknap. dell, of Meredith, and Martin & Howe, of Concord, for defendant. PAUL et al. v. WIGGIN. PEASLEE, J. The rights of the parties are determined by ascertaining what they meant by the language they used to express their contract. Their purpose is not ordi Where plaintiffs conveyed to defendant all trees a certain size, and suitable for lumber, standing on certain premises, and the deed provided that defendant had the right to enter to cut and remove the timber at any time before January 1, 1913, that all timber not remov-narily discovered by calling one part of their ed before that date should become the property brief and undivided agreement a grant and of the grantors, and that defendant could place another part a forfeiture, and then applying a portable mill on the lumber lot and stick lumber thereon, all sawed lumber to be removed on certain technical rules to each part. It or before June 1, 1913, the contract meant that seems entirely evident that to these men defendant bought so much lumber as he cut and their contract meant that the defendant removed from the premises before January 1, bought so much lumber as he cut and re1913, and what he did not so cut and remove belonged to plaintiffs. moved from the premises before January 1, 1913. What he did not so cut and remove belonged to the plaintiff. It is highly improbable that they ever contemplated a severance of the trees from the land by a fic tion of law, or that they understood they were providing for a penalty which the law might not recognize. To their minds it was a plain and simple agreement for the sale of such timber as was both cut and removed substantial error in the ruling made in the There was no before the date agreed upon. [Ed. Note.-For other cases, see Logs and Logging, Cent. Dig. § 9; Dec. Dig. 3(11).] Transferred from Superior Court, Belknap County; Kwel, Judge. Bill by Edward A. Paul and others against Edward A. Wiggin. To a ruling construing a deed involved in the suit, defendant excepts. Transferred from the superior court, and exception overruled. Bill in equity to restrain the defendant from entering the premises of the plaintiffs and removing certain timber therefrom. By agreement of parties the only question submitted to the court was the construction of the deed from the plaintiffs to the defendant. October 31, 1910, the plaintiffs conveyed to the defendant all the pine, hemlock, and oak trees, eight inches and upward in diameter where cut, and all elm, ash, bass and beach trees twelve inches and upward in diameter, suitable for lumber, then standing on said premises. The deed provided that the defendant had the right "to enter upon said premises with men and teams to cut and remove said timber at any time before January 1, 1913, all timber not removed before that date should become the property of said grantors," and also that: superior court. 2. LANDLORD AND TENANT 164(3)-INJU-this action is based upon the negligent performRIES TO TENANT'S CHILD-NEGLIGENCE. If a landlord agreed to repair the premises, stating that he would fix them all right, and failed to do so, in an action on the case for negligently undertaking the duty, resulting in injuries to the tenant's child when plaster fell on her in bed, no liability in tort attached to the landlord by reason of his agreement. [Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. § 632; Dec. Dig. 164(3).] ance of a legal duty imposed by law, rather than one that attaches by reason of any contract. Even if a landlord does agree to repair the premises, and fails to do so, in an action for negligently undertaking the duty, no liability attaches by reason of the agreement." To this statement the plaintiff excepted. No error was committed by the court in giving this instruction. Dustin v. Curtis, 74 N. H. 266, 67 Atl. 220, 11 L. R. A. (N. S.) 504, Exceptions overruled. All concurred. Transferred from Superior Court, Hills- 13 Ann. Cas. 169. borough County; Sawyer, Judge. (78 N. H. 254) FLAHERTY v. MANCHESTER ST. RY. Action on the case by Melvina Petroski, by her next friend, William Petroski, against Albert Mulvanity and others. There was a verdict for defendants, and plaintiff excepts. Transferred from the superior court, and ex-(Supreme Court of New Hampshire. Hillsborceptions overruled. ough. Oct. 3, 1916.) - 1. APPEAL AND ERROR 1015(3) SCOPE FINDINGS OF FACT. Since it is for the trial judge whether a verdict should be set aside as against the weight of CASE, for negligently causing personal injuries to the plaintiff in interest. Trial by jury and verdict for the defendants. The defendants are the owners of a tene-evidence, his determination will not be disturbed if there is any evidence to support it. ment house, having one tenement on the ground floor, and one on the second floor each having a separate entrance. Each tenement had also a finished room in the attic, but it was not shown whether they were reached by a common stairway or by separate passages. William Petroski was a tenant in the upstairs tenement. The injuries complained of were caused by the falling of the plaster over the bed where Melvina, a child of William, seven days old, lay with her mother. The plaintiff's evidence tended to show that the plaster was loosened by rain coming through a leaky roof. The exceptions of the plaintiff which were to the charge of the court appear in the opin ion. John R. Spring and Henri A. Burque, both of Nashua, for plaintiff. Frank B. Clancy and Doyle & Lucier, all of Nashua, for defendants. PLUMMER, J. [1] The plaintiff claimed that the landlord retained control of the roof and of the unfinished space under the roof, but there was no evidence of any express reservation thereof in letting. The plaintiff excepted because the court did not send to the jury the question of the control of the roof, and instruct them that, if they found the roof was under the control of the defendants, the plaintiff could recover. It not appearing that the roof was under the control of the defendants, the court was justified in refusing to submit that question to the jury or give instructions in relation thereto. [2] In his charge to the jury the court said: "It is suggested that one of the last witnesses on behalf of the plaintiff testified that the defendant Dr. Mulvanity stated that he would 'fix the premises all right.' If such is the testimony, no liability would occur in this action by reason of the failure to fix it all right, because that is a pure matter of contract, and Evidence held to sustain finding that verdict for the street railway on the ground of the in jured passenger's contributory negligence was contrary to the weight of evidence. [Ed. Note.-For other cases, see Carriers, Cent. Dig. § 1401; Dec. Dig. 346(2).] Transferred from Superior Court, Hillsborough County; Sawyer, Judge. Action by James Flaherty against the Manchester Street Railway. On plaintiff's motion, verdict for defendant was set aside, to which defendant excepted. Case transferred. Exception overruled. Case, for personal injuries. Trial by jury and verdict for the defendant. After the case had been submitted to the jury and under their consideration for a considerable time, the court gave them further instructions, and directed them to answer the following questions: "Was the plaintiff guilty of any negligence contributing to his accident? "Was the defendant (by its servants) guilty of any negligence which contributed to the accident?" The jury answered both questions in the affirmative, and, under the direction of the court, the foreman signed a verdict for the defendant. The plaintiff made a motion to After hearing the set the verdict aside. same, without further evidence, the court found that "the verdict of the jury on the issue of the plaintiff's due care was so manifestly against the evidence as to indicate that they fell into a plain mistake," and ordered the verdict set aside. To this finding and order the defendant excepted. Transferred from the September term, 1915, of the superior court, by Sawyer, J. Hollis & Murchie, of Concord, for plaintiff. Jones, Warren, Wilson & Manning, of Manchester, for defendant. PLUMMER, J. [1] Whether a verdict should be set aside as against the weight of evidence is for the trial judge. Fuller v. Bailey, 58 N. H. 71; Hovey v. Brown, 59 N. H. 114; Merrill v. Perkins, 61 N. H. 262; Little v. Upham, 64 N. H. 279, 9 Atl. 220; Lucier v. Larose, 66 N. H. 141, 20 Atl. 249; Abbott v. Railroad, 69 N. H. 176, 44 Atl. 912; Pitman v. Mauran, 69 N. H. 230, 40 Atl. 392. This court has never been disposed to disturb a decision of the trial court in this class of cases. Doe, C. J., in Fuller v. Bailey, supra, said: "The question, whether a verdict is against the evidence, is one which the court at the trial term would not ordinarily reserve, and which the court at the law term would generally refuse to consider if it were reserved." As was said in Burnham v. Butler, 58 N. H. 568: "In his knowledge of the trial, the presiding justice has better means of deciding the question of fact than others can have who were not at the trial." The finding of the court that the verdict was so manifestly against the evidence as to indicate that the jury fell into a plain mistake, and the order setting the verdict aside, cannot be disturbed, if there was evidence to justify the finding. Abbott v. Railroad, su pra. (Supreme Court of New Hampshire. Hillsborough, Oct. 3, 1916.) 1. PROCESS 153-ENTRY OF WRIT-TIME. The court had power to permit the entry of a writ after the return day, if failure to enter it in due season was due to accident or mistake, and it would be equitable to permit such entry. [Ed. Note.-For other cases, see Process, Cent. Dig. §§ 207, 208; Dec. Dig. 153.] 2. COURTS 486-WANT OF JURISDICTIONENTRY IN PROPER COURT. An action entered in a court which has no jurisdiction because the action is local may at any stage of the proceedings be entered in the court in which it should have been brought. Dig. 88 1299-1305; Dec. Dig. 486.] [Ed. Note.-For other cases, see Courts, Cent. 3. ACTION 36-CAUSE OF ACTION-"PROCEDURE." A suit brought for one cause of action may be prosecuted for another; "procedure" being what justice requires. [Ed. Note.-For other cases, see Action, Cent. Dig. §§ 295-310; Dec. Dig. 36. First and Second Series, Procedure.] For other definitions, see_Words and Phrases, 4. ATTACHMENT ~275 MISTAKE-RE-ENTRY. ENTRY OF WRIT Where plaintiff sued out a writ of attachment, and, on advice that proceedings in the federal court had dissolved it, directed the officer to abandon it, after he discovered that such advice was unsound, on petition therefor, he was as entitled to an entry of the suit at a subsequent [2] The evidence disclosed that the plaintiff at the time of the accident was a passenger in the defendant's electric car. The car was crowded, and there was no seat for him, so he stood in the aisle, with his left hand on the top of a seat, talking to two lady companions that were sitting in a seat beside him. There were no straps for him to take hold of. While the plaintiff was in this position, the car split a switch, throw-term as during the one at which it would have ing the two rear trucks off the track. The shock threw the plaintiff across the laps of his companions and onto the floor. The evidence is conflicting as to the speed of the car; one witness said 5, 6, or 7 miles an hour, and the plaintiff 15 to 20 miles. Whatever speed the car was running when it split the switch, the evidence is that the shock was sufficient to break glass in the car and to throw a passenger through a window in the rear vestibule. been entered but for the mistake, and legal en- TACHMENT-REINSTATEMENT. In such case the plaintiff would not be estors and the receiver of the defendant, who were topped to set up the attachment as against crediin no way misled, and who would not in any event have proceeded in the bankruptcy court. [Ed. Note. For other cases, see Estoppel, Cent. Dig. §§ 166, 169; Dec. Dig. 68(2).1 Transferred from Superior Court, Hillsborough County; Pike, Judge. It is not apparent in what respect the plaintiff was negligent at the time of the accident. He was standing in the aisle of the car because there was no seat for him. He could not steady himself by holding onto Petition by Samuel F. Langdell for leave straps, for no straps were provided for that to enter a writ of attachment against the purpose. The only thing that he could do Eastern Basket & Veneer Company. Plainwas to take hold of the top of a seat, and tiff allowed to enter his writ as of Septemthis he said he did, and his testimony as ber, 1914, term, and question of court's powto this was uncontradicted. Neither was his ers to enter such order transferred without testimony improbable, as the defendant ar-la ruling. Case discharged. which he would have been if the mistake had not been made. If this were not so, the power to relieve from the mistake would be wanting. Gunnison v. Abbott, 73 N. H. 590, 594, 64 Atl. 23. Legal entry of the writ under leave of the court reinstates the attachment so far as it was lost by the failure seasonably to enter the writ. Petition filed during the January, 1915, | essarily places the plaintiff in the position in term, for leave to enter a writ returnable at the September, 1914, term as of that term. The defendants, a New York corporation, were doing business in this state May 22, 1914, when the plaintiff attached their property. The officer held it until some time after May 26th when he turned it over to receivers appointed by the federal court for the Western district of New York on their [5] Whether the plaintiff may be estopped agreement to hold it without prejudice to to set up the attachment as against third the plaintiff's rights. On July 16th the fed-parties depends upon whether it would be ineral court for the district of New Hampshire equitable for him to do so. Gunnison v. Abappointed the New York receivers ancillary receivers and directed them to take possession of all the defendants' property in this state. At some time after the property had been turned over to the receivers, but just when did not appear, the plaintiff was advised that the proceedings in the federal court dissolved his attachment, and he thereupon directed the officer to abandon it. Nothing more was done until the plaintiff heard that the advice was unsound, when the petition was filed. Hearing by Pike, C. J., who found that the plaintiff should be permitted to enter his writ as of the September term and restored to his rights under the attachment if the court had power to make the order upon the facts stated, and transferred the question of the court's power without a ruling. James P. Tuttle and Albert H. White, both of Manchester, for plaintiff. Hollis & Murchie, of Concord, and John W. Van Allen, of Buffalo, N. Y., for defendant. PARSONS, C. J. [1] The court had power to permit the entry of the writ after the return day if failure to enter it in due season was due to accident or mistake, and it would be equitable to permit such entry. Taylor v. Cobleigh, 16 N. H. 105; Chadbourne v. Sumner, 16 N. H. 129, 133, 134, 41 Am. Dec. 720. [2] Actions entered in a court which has no jurisdiction because the action is local may at any stage of the proceedings be entered in the court in which they should have been brought. Bartlett v. Lee, 60 N. H. 168; Lord v. Walker, 61 N. H. 261; Hayes v. Rochester, 64 N. H. 41, 6 Atl. 274; Tucker v. Lake, 67 N. H. 193, 29 Atl. 406. bott, 73 N. H. 590, 594, 64 Atl. 23; Brown v. Upon the facts stated it could be found that such restoration would be equitable as between all the parties to the proceeding, and upon such finding the court had power to make the order. If justice requires a further hearing upon the determining question of fact, relief will be given in the superior court. Case discharged. All concurred. (78 N. H. 245) KUBA v. DEVONSHIRE MILLS. [3] A suit brought for one cause of action may be prosecuted for another.. Sanborn v. Railroad, 76 N. H. 65, 79 Atl. 642. Procedure is what justice requires. Owen v. Wes-(Supreme Court of New Hampshire. ton, 63 N. H. 599, 603, 604, 4 Atl. 801, 56 Am. Rep. 547. [4] If justice requires that a plaintiff who has failed to enter his writ by accident or mistake should be permitted to do so, the court has power to correct the mistake whenever it is discovered, and may as well permit the entry of the suit at a subsequent term as during the one at which it would have been entered but for the mistake. The order nec borough. Oct. 3, 1916.) Hills 1. APPEAL AND ERROR 843(2)—HARMLESS · ERROR. jury found that the master was not liable, it In a servant's action for injuries where the was immaterial whether the independent issue of fraud in securing a release was correctly tried; as a verdict is not set aside for an error which the course of the trial renders immaterial or which is against the prevailing party. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 3331; Dec. Dig. 843(2).] 2. TRIAL 252(11) INSTRUCTIONS - INJURIES TO SERVANT ISSUES. Where the servant's testimony clearly showed that he understood an alleged order to do certain work, and the master's testimony was that no order was given, refusal to submit the issue of adequate explanation of orders given was not error. [Ed. Note.-For other cases, see Trial, Cent. Dig. 603; Dec. Dig. 252(11).] Exceptions from Superior Court, Hillsborough County; Sawyer, Judge. Action by Martin Kuba against the Devonshire Mills. On plaintiff's exceptions to certain instructions. Exceptions overruled. which is against the prevailing party. Parkinson v. Railroad, 61 N. H. 416, 417; Kings ley v. Holbrook, 45 N. H. 313, 323, 86 Am. Dec. 173; Graves v. Graves, 45 N. H. 327. If the defendants were not liable at all, it is immaterial whether the reference to the $175 as full compensation for the injury was or was not improper because, having found there was no liability, the jury had no occasion to consider the question of damages. Woodbury v. Whiting, 68 N. H. 607, 44 Atl. 385; Wier v. Allen, 51 N. H. 177, 180. [2] The second exception is overruled because there was no evidence in the case upon which to found the issue which it is claimed should have been submitted in qualification of the general rule upon which the case was made to turn. Case under chapter 163, Laws of 1911, to recover for injuries received by the plaintiff while in the defendants' employ. The defendants pleaded the general issue with a brief statement setting up a release under The plaintiff worked in the picker room. seal given in consideration of the payment of There was an accident to a belt which was $175. The jury were instructed that they taken away to be repaired. He testified the should pass upon the validity of the release foreman or "picker boss" told him to clean before considering the defendants' liability | up everything while waiting for the repair to for the plaintiff's injury. They found the re- be made, and that while carrying out the orlease was obtained by the defendants' fraud and deceit, but returned a general verdict for the defendants. The jury were instructed that a release, however obtained, could not be avoided unless damage resulted there from; the application being stated in the following language: der to clean he was injured. The defendants' evidence was that the plaintiff was not told to do anything. The issue raised by this evidence was clearly presented to the jury. They were told that to find a verdict for the plaintiff they must be convinced he was injured while performing some service required "So, in this case, if you should conclude that of him by the defendants. If the jury believthe money paid the plaintiff was fair and just ed the plaintiff, they could find for him on compensation, it is an end of the whole matter." these instructions. There is no claim in the There were no exceptions to the refusal to evidence of any misunderstanding of an orgive requested instructions, but after the der given by the foreman. Upon the plaincharge the plaintiff filed the following excep- tiff's testimony the order was clear and distions which were allowed: The plaintiff extinct, understandable and understood. cepts to the court's instructions in the fol-cording to the foreman, no order was given. lowing particulars: "(1) The plaintiff excepts to the court's instructions which permit the jury to find that $175 was fair compensation. "(2) The plaintiff excepts to the instructions that the plaintiff must have been injured in the performance of orders given by his foreman without explaining to the jury that, owing to his lack of intelligence, or to his inability to understand the English language, he still might recover if he was in performance of orders that he understood called on him to do the work he was doing, without having explained to him by his foreman, and which the foreman ought reasonably to have explained to him." Taggart, Burroughs, Wyman & McLane, and Charles E. Hammond, all of Manchester, for plaintiff. Jones, Warren, Wilson & Manning, of Manchester, for defendant. Ac Whether the plaintiff could recover because of lack of adequate explanation by the foreman in giving an order is on the evidence an abstract question of law which has no application to the case. The plaintiff, having put his case upon an express order to do what he was doing, must stand or fall on the direct issue made by the defendants' denial. "A judge is not bound to instruct the jury up* before he on an abstract proposition can be required to give particular instructions; there must be evidence, relevant and pertinent, on which to found them." Osgood v. Maxwell, 95 Atl. 954; Lockwood v. Express Co., 76 N. H. 530, 85 Atl. 783; Hersey v. Hutchins, 70 N. H. 130, 46 Atl. 33; Woodman v. Northwood, 67 N. H. 307, 309, 36 Atl. 255. A requested instruction is properly denied PARSONS, C. J. [1] The jury having if the case does not show there was evidence found that the defendants were not liable, it to which the proposed instruction could apis immaterial whether the issue as to fraud ply. Challis v. Lake, 71 N. H. 90, 95, 51 Atl. in obtaining the release which was separate-260. ly determined was or was not correctly tried. The instructions to which the first exception is taken were upon this issue of fraud on which the jury found for the plaintiff. A verdict is not set aside for an error which the evidence. the course of the trial renders immaterial or Exceptions overruled. All concurred. With greater reason a verdict cannot be disturbed because the judge, in the absence of any request for special instructions, failed to submit to the jury an issue not raised by |