gines when at work in the yard does not war-ond for his damages and the expenses incurrant the conclusion that in this particular red in conducting the litigation. In 1908, the instance he was watching for the engine that defendant corporation agreed to convey a overtook him. The facts disclosed by the large tract of land to the plaintiff by warcase show conclusively that he was not ranty deed; but when the time to make the watching for the approach of the engines that conveyance arrived, he ascertained that the he knew were liable to be in close proximity company had no record title to parts of the to where he was, but that for some unex-property, and in consequence took a writing plainable reason his attention was diverted under seal from Charles H. and Myra L. from the danger of his situation. The sug- Merrill warranting the title. The plaintiff gestion that several inches of snow had fall has not incurred any expense in defending en, which had partly covered the rails, and his title to the premises, but there has been that he may have been induced thereby to a partial failure of title, and these suits are think he was outside the line of danger, is a to enforce the liability of the Merrills as speculative theory merely, which is as likely | warrantors. The court ruled that the plainto be false as true upon the evidence. It is insufficient to base a verdict upon. The case, so far as it discloses the manner of his death, demonstrates that he was guilty of contributory negligence, and that on this particular occasion he was not exercising the care of the ordinary man. If the engineer was negligent in not seeing him in a place of danger, he was also negligent in not seeing the approaching engine. Therefore the plaintiff is not entitled to recover, and the motion for a nonsuit should have been granted.

Batchelder v. Railroad, 72 N. H. 528, 57 Atl.

926; Gibson v. Railroad. 75 N. H. 342, 74 Atl. 589: Greenwood v. Railroad, 77 N. H. 101, 88 Atl. 217; Chabott v. Railway, supra.

Exception sustained. Verdict for the defendant.

tiff could recover his expenses from the Merrills, but not from the company, and both he and the Merrills excepted. Plaintiff's exception overruled, Merrills' exception sustained.

Walter E. Kittredge and Wason & Moran, all of Nashua, for plaintiff. Sam K. Paige, of Boston, Mass., for defendants.

YOUNG, J. The plaintiff rests his conten

tion as to his right to recover his expenses as a part of his damages on the cases which hold that one who is sued may recover the

expense he incurs in defending the suit, if he

would not have been sued but for the defendant's failure to perform either a contractual (Fairfield v. Day, 71 N. H. 63, 51 Atl. 263), or an imposed duty (Hubbard v. Gould, 74 N. H. 25, 64 Atl. 668), provided defending the suit was the reasonable thing to do (Winni

PEASLEE, J., did not sit. The others con- piseogee Paper Co. v. Eaton, 65 N. H. 13, 18

curred.

(77 N. H. 275)

ANDERSON v. MERRILL LUMBER &

FORESTRY CO.

SAME v. MERRILL et al.

Atl. 171). These cases, however, are not in point. No one has sued the plaintiff, but he has sued the defendants. Notwithstanding they agreed to make his title good, they did not promise to pay the expenses he incurred

(Supreme Court of New Hampshire. Cheshire. in enforcing liability on their agreement;

May 5, 1914.)

and in the absence of such a promise, all he can recover as expenses of litigation is his Ex-taxable costs. State v. Kinne, 41 N. H. 238,

COVENANTS (§ 130*)-WARRANTY OF TITLE-
BREACH DAMAGES LITIGATION
PENSES.

-

Where plaintiff, having contracted to purchase certain land from a corporation, at the time of closing ascertained that it had no record title to parts of the property, and for this reason took a warranty of title under seal from the individual defendants, and sued for breach of such warranty before he had been ousted or had incurred any expense in defending his title, he was not entitled to recover, as a part of his damages, the expenses incurred in enforcing defendants' liability on the covenant, but was only entitled to recover his taxable costs as expenses of litigation.

[Ed. Note.--For other cases, see Covenants Cent. Dig. § 245-253, 255, 256, 257; Dec. Dig. § 130.*]

Actions by William H. Anderson against the Merrill Lumber & Forestry Company and against Charles H. and Myra L. Merrill. Debt, in the first case for breach of a covenant in a deed, and in the second case for breach of a bond of warranty. Trial by the court, and verdicts for the plaintiff, in the first action for his damages, and in the sec

(77 N. H. 277) NEW ENGLAND BOX CO. v. FLINT. (Supreme Court of New Hampshire. Sullivan. May 5, 1914.) CUSTOMS AND USAGES (§ 15*)-ADMISSIBILITY IN EVIDENCE.

A usage among lumber operators to make final settlement for cutting, sawing, etc., according to the surveys of lumber made at the time of its sale, was admissible in an action for overpayments under a contract guaranteeing the amount of lumber paid for, both as tending to show what the parties intended and whether plaintiff had unreasonably delayed making its claim.

[Ed. Note. For other cases, see Customs and Usages, Cent. Dig. §§ 30-33; Dec. Dig. § 15.*]

Exception from Superior Court, Sullivan The referee found that the delay in assertCounty; Kivel, Judge.

ing a claim under the guaranty clause until Action by the New England Box Company November 3, 1910, was unreasonable, and that against Samuel P. Flint. Judgment for de- the plaintiff, by the way in which it dealt fendant upon a referee's report, and case with the defendant and his subcontractor in transferred from the superior court on plain-making payments as hereinbefore stated. tiff's exception. Exception sustained, and re- waived the guaranty. He also reported that, port set aside. finding the intention attempted to be expressUnder the contract between the parties, ed by the guaranty clause to be that the Flint agreed to guarantee the amount of lum- guaranty should continue for a reasonable ber he received pay for, and was to be paid time after the completion of the work, he for each lot of 100,000 feet as soon as a re-construed its provisions accordingly, and no port thereof was received by the plaintiff, exception was taken thereto by either party. subject to delays of carriers and other delays beyond the plaintiff's control. The parties understood that the lumber was to remain on the sticks for a few months for the purpose of drying it before it was taken away for use or sale. The defendant sublet the job to one Pierce, by a contract in writing not under seal, which was in all respects like his contract with the plaintiff, except that the price paid was $5.25 per M. feet, instead of $5.50. The plaintiff was informed of the subletting and did not object. Pierce began work in January, 1908, and completed the job on October 17, 1908, with the exception of 29,000 feet, which he sawed and stuck in January and February, 1909.

Flower & Flower, of Greenfield, Mass., Henry S. Richardson, of Claremont, and Allen Hollis, of Concord, for plaintiff. Edward R. Buck, of Windsor, Vt., and Frank O. Chellis, of Newport, for defendant.

PARSONS, C. J. The rule "which forbids the admission of parol evidence to contradict or vary a written contract is not infringed by any evidence of known and established usage respecting the subject to which the contract relates. To such usage, as well as to the lex fori, the parties may be supposed to refer, just as they are presumed to employ words in their usual and ordinary signification. * ** Proof of usage is admitted, Each piece of lumber was measured as it either to interpret the meaning of the lancame from the saw and an account kept, the guage of the contract, or to ascertain the natotal of which was reported to the plaintiff ture and extent of the contract, in the absence each week. An agent of the plaintiff visited of express stipulations." 1 Gr. Ev. § 292: the mill as often as twice a week to see that 4 Wig. Ev. § 2440. "The liberal rule * the terms of the contract were observed and is to-day conceded, practically everywhere, to to keep informed as to the quantity sawed. permit resort in any case to the usage of a Whenever a claim was made that 100,000 feet trade or locality, no matter how plain the aphad been sawed, it was the agent's duty to parent sense of the word to the ordinary readinvestigate the claim and report to the plain-er." 4 Wig. Ev. § 2463 (2); George v. Joy, 19 tiff; and upon his approval of the claim after investigation, the plaintiff sent a check for $550 to the defendant, who immediately sent a check for $525 to Pierce. The defendant requested the plaintiff's agent not to author-custom or usage to make final settlement for ize a payment until 100,000 feet on account of which it was made was stuck up. The plaintiff had notice of the course of business under which the defendant paid Pierce immediately upon receipt of a check from them.

N. H. 544, 546; Swamscot Machine Co. v.
Partridge, 25 N. H. 369, 378. See Glover v.
Baker, 76 N. H. 393, 415, 83 Atl. 916.

The evidence offered by the plaintiff of the

cutting, sawing, etc., according to the surveys of lumber made at the time of its sale, was competent, and should have been admitted. It tended, not to contradict, but to make intelligible, the written contract. If proved The plaintiff began to remove the lumber as a fact within the minds of the parties on September 19, 1908. All the lumber ex- when the written engagement was entered incept 10 car loads was shipped prior to Janua- to, it tended to show what they meant by ry, 1910, and the last on April 10, 1910. Dur- what they said. The agreement of the deing the progress of the work the plaintiff fendant "to guarantee the amount of lumber paid the defendant upon the mill measure- he receives pay for" implies that on some ment for 2,000,000 feet. November 3, 1910. basis of measurement payment might be they notified him that the lot fell short of made, leaving the accuracy of the measurethe amount paid for by a little over 200,000 ment to be determined at some future time. feet and requested payment of the sum of The evidence tended to show how the parties $1,174.38 under the guaranty clause of the understood this determination should be contract. The amount of lumber manufac- made. When made, the defendant's guarantured from the lot was 1,900,000 feet. Evity applied. It is not seriously contended that dence offered by the plaintiff of a well-known the evidence was incompetent, but the contenusage among lumber operators to make final tion is that the findings of waiver and laches settlement for cutting, sawing, etc., accord- | render the construction of the written coning to the surveys of lumber made at the time of its sale, was excluded, subject to ex

tract immaterial. But the evidence bore directly upon the question whether what was

ment while the sawing was going on was un- [ Pierce & Galloway, of Dover, for plaintiff. derstood as a final settlement, or as a prelim- | George T. Hughes and Robert Doe, both of inary adjustment to be corrected later under | Dover, and Leslie P. Snow, of Rochester, for the contract. It also tended to show when in defendant. due course it could be ascertained whether the measurement for which the defendant ¦ YOUNG, J. There is no special rule which had been paid was erroneous, and hence was excludes evidence like that admitted subject material upon the question whether the plain- to exception; and as it was relevant to the tiff unreasonably neglected to make claim | issue of the witness' credibility, the excepafter it knew or ought to have known of the tion to its admission raises no question of error.

law. Hoxie v. Walker, 75 N. H. 308, 311, 312, 74 Atl. 183: Kelland v. Co.. 75 N. H. 168, 170, 71 Atl. 947; Curtice v. Dixon, 74 N. H. 386, 397, 68 Atl. 587.

Exception overruled. All concurred.

(77 N. H. 287)

STATE v. JACKSON.

May 5, 1914.)

1. JURY (§ 33*)-TRIAL-RIGHT TO TRIAL BY JURY DE VICINETO.

The referee, having found a general verdiet for the defendant, states the facts proved before him. It appears that the plaintiff's claim was based upon the defendant's covenant under seal. The bond and its breach found by the referee are facts inconsistent with the general verdict for the defendant, unless facts are found authorizing the conclusion that, despite the breach of the defend-(Supreme Court of New Hampshire. Grafton. ant's covenant under seal, he is not liable in damages therefor. The referee finds that the plaintiff delayed unreasonably in asserting a claim under the guaranty, and that by the way the plaintiff dealt with the defendant and his subcontractor in making payments as stated by him, it waived the guaranty. Since the evidence which was wrongfully excluded was material upon each of these propositions, it is unnecessary to consider whether the evidentiary facts stated authorize the finding of waiver, or whether unreasonable delay in asserting a claim under the guaranty would of itself estop the plaintiff from the present

claim.

Pub. St. 1901, c. 209, § 7. providing that the court shall direct the number of jurors to be summoned, and from what town, is not in violation of Bill of Rights, art. 17, declaring that an accused shall have the right to trial by jury of the vicinage, for that does not mean that jurors on a given panel must come from all the towns in a county, or from towns scattered all over the county, and the statute is merely declarative of the earlier practice.

[Ed. Note. For other cases, see Jury, Cent. Dig. §§ 226-232; Dec. Dig. § 33.*1

2. JURY (§ 33*)—JURY TRIAL-RIGHT TO.

Laws 1911, c. 72, referring to the division of Grafton county into districts, provides in sec

Plaintiff's exception sustained; report set tion 8 that a grand jury shall be drawn for each All concurred.

aside.

(77 N. H. 595)

POORE v. BOSTON & M. R. R. (Supreme Court of New Hampshire. Strafford. May 5, 1914.)

term of court at the places where court is held, and that petit jurors shall be drawn and returned for each term held in the county, while section 9 declares that all civil actions shall be prosecuted in the superior court in the several districts, as if each district was a distinct county. Held, that it was the intent of the Legislature that the county should continue to be one county as regards criminal prosecutions, and WITNESSES (§ 330*)—CREDIBILITY-INTENT TO that the duty of the court to direct the number SUE. of jurors, and from what towns they might be In an action for injuries to a wife, defend-drawn, was not limited; hence an accused could ant, on cross-examination of the husband, was properly permitted to ask him whether he would make a claim against defendant for loss of his wife's services and for money paid for nursing and medical attendance on her, if she recovered in the suit, as bearing on the witness' cred-be drawn from all of the several towns of the ibility.

[Ed. Note.--For other cases, see Witnesses, Cent. Dig. §§ 1106-1108; Dec. Dig. § 330.*] Exceptions from Superior Court, Strafford County; Pike, Judge.

Action by Rebecca M. Poore against the Boston & Maine Railroad. A verdict was rendered for defendant, and plaintiff brings exceptions. Overruled.

Subject to exception, the defendant was permitted to cross-examine the plaintiff's hus

band as to whether he would make a claim against the defendant for loss of services and for money paid out for nursing and medical attendance if his wife recovered in this suit.

not challenge the array of petit jurors on the ground that, not being drawn from all the towns, he was deprived of trial by jury of the vicinage, secured by Bill of Rights, § 17, for that right does not entitle him to demand that jurors

county.

Nor can he challenge an indictment on the ground that the grand jury was not drawn from the whole county; for the jurors are drawn of the law when selected from those towns deterfrom the body of the county within the meaning mined upon by the court.

[Ed. Note. For other cases, see Grand Jury, Cent. Dig. §§ 8-13, 15; Dec. Dig. § 5.*]

Transferred from Superior Court, Grafton County; Peaslee, Judge.

Charles S. Jackson was indicted for arson, and he moved to quash the indictment and challenged the array of petit jurors. Trans

ferred without ruling. Case discharged, and court directed." State v. Moore, 69 N. H. 102, challenge overruled. 121, 40 Atl. 702.

The indictment was found by a grand jury

drawn from and attending a term of court

held in the western judicial district, and charging that the offense was committed in a town which is in that district. The re

spondent moved to quash the indictment because the grand jury was not drawn from the whole county. The case came on for trial at a term held in the southern district, and the respondent claimed a challenge to the array of petit jurors drawn from that district.

Edward J. Cummings, of Littleton, for the State. George W. Pike, of Lisbon, and Frank S. Williams, of Bradford, Vt., for defendant.

PEASLEE, J. [1-3] The first division of Grafton county into judicial districts was in 1841. The statute then passed provided in terms that all prosecutions for offenses alleged to have been committed in either district should be had therein. Laws 1841, c. 598, § 6. The limitation was retained, in condensed form, by the commissioners, who revised the statutes the next year (Com'rs' Rep., R. S. c. 16, § 15), but was amended by the Legislature so that it applied only to civil cases. R. S. c. 16, § 15. This provision has been re-enacted in substance whenever the county has been divided into judicial districts since that time. Laws 1893, c. 8, § 5; Laws 1907, c. 28, § 9; Laws 1911, c. 72, § 9. It thus appears to be the declared intent of the Legislature that the county be divided into districts for civil business, but that as to prosecutions for crime it should continue to be one county. Willie v. Parkhurst, 31 N. H. 415. The practice under these statutes has been in accordance with the legislative mandate, and indictments have been found and tried at any term of court, without regard to the question of venue, as between the districts.

It has been assumed in the present case,

by counsel on both sides, that the act divid rected that the jurors be drawn from the ing Grafton county into judicial districts diseveral districts as though they were separate counties. There is no such provision in

the act.

for the April term at Lebanon, the September "A grand jury shall be drawn and returned term at Haverhill, and the November term at Plymouth. Petit jurors shall be drawn and returned for each term held in said county." Laws 1911, c. 72, § 8.

There is nothing here which in any way limits the right or the duty of the court to direct the number of jurors and from what towns they shall be drawn. If as a matter of convenience, or for some other reason, the court has selected the towns in the district as those to furnish the jurors for the terms there held, the constitutional rights of respondents have not been infringed upon. The juries were drawn from the body of the county, within the meaning of the law. State v. Sawtelle, 66 N. H. 488, 505, 32 Atl. 831. The law governing drawing juries in Grafton county, and the practice under it, are the same as in all other counties. The court directs what towns shall furnish jurors from term to term, so that in the course of a year each town shall have furnished its proper proportion.

It follows from what has been said that the respondent was legally indicted, and that no cause is shown for his challenge to the array of petit jurors.

Case discharged. All concurred.

1. RAILROADS (§ 443*)—KILLING OF ANIMALS -LIABILITY-EVIDENCE. It is now objected that this In an action against a railroad company practice infringes the constitutional rights of for the death of horses killed by a train, evia respondent to be tried by a jury de vicineto. dence held to sustain a finding that the horses "In criminal prosecutions, the trial of facts entered on the track because of the want of a in the vicinity where they happen is so essential proper cattle guard. to the security of the life, liberty, and estate of the citizen, that no crime or offense ought to be tried in any other county than that in which it is committed, except in case of general insurrection." Bill of Rights, art. 17.

As this article has been construed, it does not mean that jurors on a given panel must come from all the towns in the county, or from towns scattered over all the county. "The court shall direct the number of jurors to be summoned, and from what towns." P. S., c. 209, § 7.

This has, in substance, been the law since long before the Constitution was adopted.

[Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 1608-1620; Dec. Dig. § 443.*] 2. RAILROADS (8 421*)-KILLING ANIMALSCONTRIBUTORY NEGLIGENCE.

Where a railroad company failed to maintain cattle guards, as required by statute, and horses, because thereof, entered on the track and were killed by a train, the contributory negligence of the driver of the horses was no defense.

[Ed. Note.-For other cases, see Railroads, Cent. Dig. 88 1501-1508, 1510; Dec. Dig. $ 421.*]

Exceptions from Addison County Court; E. L. Waterman, Judge.

"In view of this fact, there remains no room Action by C. A. Burnham against the Rut for doubt or disputation that when our Consti-land Railroad Company. There was a ver tution was adopted the right of trial in use here was the right to be tried by impartial ju

dict and judgment for plaintiff, and defend rors drawn from such towns in the county as the ant brings exceptions. Affirmed.