fect at the time of the passage of said special act. The special statute passed at such time was to apply only to the school to be opened as the result of its special provisions. The passage of it had no effect upon the general statute, nor was it so intended. The general statute continued to apply to all schools to which it applied before the passage of that act. This school, created by the special statute and by the provisions of which the costs and expenses of the erection and furnishing of the school building were borne in part by the school commissioners, and in part by the city of Annapolis, was not intended to be included within the class of schools to which the above-cited provisions of the general law applied. In 1910, by the passage of chapter 386, the management and supervision of the school commissioners over high schools of the state were intended to be enlarged, and it was specially provided that nothing in that act should be construed to repeal the provisions of sections 16, 17, and 18 of chapter 275 of the Acts of 1896, applying to the Annapolis public high school. We do not think that the general act of 1904, containing no express provisions repealing the special act of 1896, and containing no provisions more inconsistent with such special law than the statute it repealed and re-enacted, can have the effect of repealing such special law. The two statutes are not irreconcilable. The former had application to a particular school, the one mentioned in this controversy, while the latter applied to a general class of schools which did not embrace the school here involved. But, as the order of the lower court directing the mandamus to issue is incomplete in its directions as to the appointment of the trustees as was conceded in the argument before us, we will, without affirming or reversing the lower court in passing that order, remand the case, that an order may be passed in conformity with this opinion and the Act of 1896, c. 275. Cause remanded without affirming or reversing the order appealed from, costs to be paid by the appellants. (76 N. H. 390) MERRILL v. PUTNAM. allowing a will to be proved in solemn form, the case should not be sent back to the prothe superior court docket for trial. bate court, but should be brought forward on [Ed. Note.-For other cases, see Wills. Cent. Dig. § 838; Dec. Dig. § 3712.*] 3. WILLS (§ 219*)-PROBATE PROCEEDINGSPERSONS INTERESTED. benefit of testator's widow shows that she was That a will contained a provision for the sufficiently "interested" in the will to prosecute a proceeding to prove the will in solemn form. [Ed. Note. For other cases, see Wills, Cent. Dig. 88 527-531; Dec. Dig. § 219.*1 Transferred from Superior Court, Sullivan County; Wallace, Judge. Petition by Abbie Putnam to prove Samuel Putnam's will in solemn form. From a decree allowing prosecution of the petition, Robert T. Merrill, executor, appealed to the superior court, where the appeal was dismissed, and whence the case was transferred. Case discharged. Samuel Putnam died in 1909, testate. Upon petition of his widow, his will was proved in solemn form; but the statutory appointments of agents for nonresidents and guardians for minors were not made. Immediately after the decree, the widow filed a waiver of the provisions of the will in her favor and took her share in the estate under the statute. Abbie Putnam, who is a daughter of Samuel and the present appellee, then appealed from the decree allowing the will. The appeal was dismissed by the superior court because of the lack of appointment of guardians and agents. sought to be substituted for her mother as petitioner in the probate court, and this appeal was taken from an order to that effect. Thereafter Abbie John E. Allen and Charles H. Hersey, both of Keene, for plaintiff. Edward R. Buck, of Windsor, Vt., and IIurd & Kinney, of Claremont, for defendant. PEASLEE, J. As the facts are understood, due notice of the proceeding to prove the will in solemn form was given in the first instance, so as to bind all but minors and persons out of the state. This is conceded by the plaintiff in his last brief, wherein he recites that the usual notice was given. By that notice, Abbie Putnam was made a party to the proceeding in the probate (Supreme Court of New Hampshire. Sullivan. court. She entered a formal appearance April 2, 1912.) 1. WILLS (§ 371%*)-PROBATE PROCEEDINGS -PARTIES. It was error to dismiss an appeal from a decree in a proceeding in probate court to prove a will in solemn form, because certain persons were not properly made parties to the proceedings below. [Ed. Note.-For other cases, see Wills, Cent. Dig. 838; Dec. Dig. § 3712.*] 2. WILLS (§ 371%1⁄2*)-PROBATE PROCEEDINGS -REVERSAL-SUBSEQUENT PROCEEDINGS. On it appearing that a superior court improperly dismissed an appeal from a decree when she appealed from the decree. Upon that appeal, it was held in the superior court that the proceeding in the probate court was invalid for want of proper proceedings as to minors and nonresidents, and the appeal was dismissed. The probate court then proceeded with proof of the will in solemn form. A question arose as to the right to maintain the petition, and the present appeal is from an order on that question. [1] It was error to dismiss the first appeal, because certain persons were not prop erly made parties to the proceeding in the probate court. Adams v. Adams, 64 N. H. 224, 9 Atl. 100. The rule is the same as in appeals from laying out highways. Bickford v. Franconia, 73 N. H. 1941, 60 Atl. 98, and cases cited. [2] It is apparent that the case ought not to be sent back to the probate court. The first appeal should be brought forward upon the docket of the superior court, the order of dismissal should be stricken off, and the case should stand for trial upon its merits. It does not appear whether the defects in the original proceeding have been remedied, but apparently such is the fact. If further action to that end is necessary or advisable, it can be taken in the superior court. The plaintiffs own a dam across the Connecticut river between Walpole, N. H., and Bellows Falls, Vt., the flowage rights connected therewith, some real estate at the Vermont end of the dam, together with a canal on the Vermont side, through which water is brought to the mill gates, and a right to build a dam in New Hampshire upon land at the easterly end of the dam. The water power is all used in Vermont under certain instruments executed by the plaintiffs with various parties prior to April 1, 1910. Subject to the defendants' exception, the plaintiffs offered in evidence certain instruments, which for convenience are designated as class A, as follows: Bellows Falls Canal Company to Adams Gristmill, February 28, [3] It is now urged that the original pe- 1832; Bellows Falls Canal Company to J. tition was fatally defective, because the wid-T. Moore, September 2, 1872; Bellows Falls ow was not "interested" in the will. The Canal Company to Moore & Thompson, Degrounds for this contention are not disclos- cember 31, 1881; Bellows Falls Canal Comed; and the fact that the will contained pany to Bellows Falls Electric Company, provisions for the benefit of the wife shows August 13, 1897 (on lease form as in class that she could claim an interest under it. B, "to their use forever" being inserted in This was sufficient to give her a standing place of 99 years); Bellows Falls Canal Com in the probate court. Case discharged. All concurred. (76 N. H. 384) pany to International Paper Company, January 10, 1898. Subject to the defendants' exception, the plaintiffs also offered in evidence certain instruments, which for convenience are designated as class B, as follows: Bel BELLOWS FALLS CANAL CO. v. TOWN lows Falls Canal Company to Rockingham OF WALPOLE. Paper Company, December 31, 1881; Bellows (Supreme Court of New Hampshire. Chesh- Falls Canal Company to Robertson Paper Under Pub. St. 1901, c. 56, § 14, which provides for taxation of land to the "person claiming the same"-that is, to the resident owner, or "to the person who is in possession and actual occupancy thereof if such person will consent to be taxed for the same"-the burden was on a water company, in petitioning for abatement of taxes against a dam, water rights, etc., to show, not only that they had parted with rights or interests in the property, but also that they were not in possession and occupation of the property, and did not consent to be taxed for it. [Ed. Note.-For other cases, see Taxation, Cent. Dig. §§ 920-924; Dec. Dig. § 499.*] 2. TAXATION (§ 81*)—WATER POWER COMPA NIES. A water company is not entitled to abatement of taxes, because it has granted perpetual easements in its reservoir; land being taxable under Pub. St. 1901, c. 56, § 14, to the person in possession or actual occupancy, if he consents, and the company having a right of action under section 30 against the grantees of the easements for any taxes they agreed to pay. [Ed. Note. For other cases, see Taxation, Cent. Dig. § 169; Dec. Dig. § 81.*] Transferred from Superior Court, Cheshire County: Plummer, Judge. Petition by the Bellows Falls Canal Company adversely to the Town of Walpole to abate taxes. Transferred from superior court. Case discharged. Company, November 29, 1886; Bellows Falls Canal Company to Wyman, Flint & Sons, November 29, 1886. With the single exception noted above, the instruments in class A purport to be conveyances in fee of certain parcels of land in Vermont, together with mill privileges described in proposals annex. ed, and to be used as therein set forth; the grantees yielding and paying therefor a perpetual yearly rental. The instruments in class B purport to be leases of land in Vermont, with mill privileges described in the annexed proposals, for terms of 99 years; the lessees yielding and paying therefor an annual rental. The annexed proposals particularly describe the extent of each privilege, stipulate the terms and conditions upon which the leased and granted rights are to be exercised, and provide that all taxes are to be paid by the lessees and grantees. The defendants offered to show that none of the foregoing instruments are recorded in New Hampshire, but are on record in the office of the town clerk at Bellows Falls, and that the only knowledge possessed by the selectmen of Walpole for 1910, prior to April 1st of that year, as to the situation between the Bellows Falls Canal Company and the other parties to the instruments, was that the latter were openly using the land in Vermont and the water drawn from the canal in Vermont as lessees or otherwise. The evidence was excluded, and the defendants the grantees acquired perpetual easements excepted. None of the grantees and lessees named in the instruments ever made any return to the selectmen of Walpole of any interest in any part of the water power. The return of the Bellows Falls Canal Company recited simply "property." Exclusive of the subjectmatter of the instruments in class A, and of any interest in or created by those instruments, the taxable value of the plaintiffs' property in Walpole did not exceed $150,000. The defendants moved to exclude from the case the evidence offered as to the iustruments hereinbefore referred to. The motion was denied pro forma, and the defendants excepted. From the statements of counsel, it appeared probable that a full hearing on all questions of fact as to the value of the property involved in the suit would be protracted, complicated, and expensive. in the plaintiffs' reservoir, which upon request the selectmen could be required to appraise and assess separately to the respective owners (P. S. c. 58, § 2), this would not establish that the tax was improperly assessed against the plaintiffs. In this state, real property is taxable to the "person claiming the same"; that is, to the resident owner, or "to the person who is in the possession and actual occupancy thereof, if such person will consent to be taxed for the same." P. S. c. 56, § 14. The burden of proof was upon the plaintiffs. Glidden v. Newport, 74 N. H. 207, 209, 66 Atl. 117. It was therefore incumbent upon them to show not only that they had parted with certain rights or interests in the property, but also that they were not in the possession and occupation of the property, and did not consent to be taxed for it. This they Upon the foregoing facts, at the request failed to do. In fact, their evidence and of the parties and without a hearing on the that offered by the defendants tended to merits, the court ruled pro forma that, un- prove that they were in the possession and der the instruments in classes A and B, the occupation of the property and consented to plaintiffs were not taxable for any of the be taxed for it. The record title was in property described therein, or on any interest them, so far as the registry of deeds disclosin the property created thereby, and that ed. They returned an inventory of their their petition for abatement should be grant-property, without notifying the selectmen ed to the extent of $150,000, to which ruling that they had parted with any interests in the defendants excepted; and the questions it; and the grantees made no claim of ownraised by this and the other exceptions were ership, so far as the selectmen knew, and reserved without hearing any further evi- filed no inventory with them, as required by dence as to the value of the plaintiffs' prop-chapter 91, Laws of 1909. It also appears erty; it being agreed that the case should stand for further hearing on the facts, if the court's ruling should be held incorrect. Streeter, Demond & Woodworth, of Concord, for plaintiffs. Taggart, Tuttle, Burroughs & Wyman, of Manchester, and Orville E. Cain, of Keene, for defendants. BINGHAM, J. [1, 2] This is an appeal by the plaintiffs from a tax assessed against them in 1910 upon certain real estate situated in the town of Walpole. It appears that, prior to the conveyances and leases referred to in classes A and B, the plaintiffs were the owners of the reservoir created by the dam and flowage rights on the Connecticut river at Walpole, and that they were such at the date of the assessment of the tax in question, except to the extent that they had parted with certain rights or easements in the property by the above-mentioned conveyances. It is because of the creation of these alleged rights or easements in the reservoir that the plaintiffs contend they should not be taxed for the full value of the reservoir, and that they are entitled to an abatement to the extent that the easements entered into the valuation which was made the basis of the tax. If we asssume, for the purposes of this case, that under the conveyances in class A from the proposals, which are part and parcel of the conveyances, that the plaintiff's covenanted and agreed to construct and forever keep in repair and free from obstructions the principal canals leading from the dam, and to forever maintain the dam so as to turn the water into the canals, which obligations of necessity required the plaintiffs to retain the possession and occupation of the property. In view of this situation and of the further fact that the grantees agreed with the plaintiffs to assume and pay all the taxes assessed upon the premises conveyed, in addition to the yearly rental that was reserved, and that the law gives the plaintiffs a lien upon the granted premises for the taxes assessed thereon against them, with a right of action to recover the same (P. S. c. 56, § 30), we are of the opinion that justice does not require that the taxes in question should be abated. Granite State Land Co. v. Hampton, 76 N. H. 1, 7, 8, 79 Atl. 25; Morrison v. Manchester, 58 N. H. 538, 555; P. S. c. 59, § 11. The defendants' exception to the evidence offered by the plaintiffs is overruled; their exceptions to the refusal to receive the evidence offered by them and to the ruling of the court are sustained. Case discharged. All concurred. (76 N. H. 372) PAGE v. CITY OF PORTSMOUTH. (Supreme Court of New Hampshire. Rocking ham. April 2, 1912.) TAXATION (§ 495*)-APPEALS-VALIDITY. On a tax appeal, the matter in issue is whether the petitioner's tax is greater than it should be, and not whether the assessors omitted to give him the proper statutory notice, or failed to comply with other provisions of the law; and so a tax case, transferred from the lower court on an agreement that if notice be essential to the validity of the tax it should be abated, must be discharged. [Ed. Note. For other cases, see Taxation, Cent. Dig. § 889; Dec. Dig. § 495.*] Transferred from Superior Court, Rockingham County; Wallac, Judge. Petition by Calvin Page against the City of Portsmouth for the abatement of a tax. Transferred from the superior court on agreement that, if notice to plaintiff, prior to assessment, is essential to the validity of the tax, it is to be abated and case discharged. Calvin Page and John W. Kelley, both of Portsmouth, for plaintiff. Samuel W. Emery, Jr., of Portsmouth, for defendant. YOUNG, J. The determination of the question transferred is not material to the matter in issue, and has not been considered for that reason. The matter in issue in a tax appeal is whether the petitioner's tax is greater than it should be (Granite State Land Co. v. Hampton, 79 Atl. 25; Winnipiseogee. etc., Co. v. Laconia, 74 N. H. 82, 65 Atl. 378; Coun. Valley Lumber Co. v. Monroe. 71 N. H. 478 479, 52 Atl. 940), and not whether the assessors omitted to give him the statutory notice (Crowell v. Londonderry. 63 N. H. 42, 49), or failed to comply with the other provisions of law in respect to making the assessment. Bickford v. Franconia, 73 N. H. 194, 197, 60 Atl. 98; Campbell v. Windham, 63 N. H. 465, 3 Atl. 422. Case discharged. All concurred. (76 N. H. 377) L. T. & J. E. LOVELL v. BOSTON & M. R. R. (Supreme Court of New Hampshire. Hills borough. April 2, 1912.) APPEAL AND ERROR (§ 1214*)-DETERMINATION-REVERSAL. In an action against a railroad company for negligently injuring plaintiff's horse which it was transporting, the trial court directed a verdiet for plaintiff for the sum named in a limited liability contract. There was an appeal by plaintiff. defendants not excepting. Held, that the directed verdict having been found erroneous on the ground that the question of the validity of the contract should have gone to the jury, the evidence not being conclusive that the contract was valid, an entire new trial was necessary, and on second trial plaintiff could not take advantage of that part of the former verdict in his favor and recover merely upon proof of the amount of his damage, the quest on for determination being the liability of the carrier as such, either under the contract or under the general common carrier's liability. Error, Cent. Dig. § 4715; Dec. Dig. § 1214.*] [Ed. Note.-For other cases, see Appeal and Transferred from Superior Court, Hillsborough County; Plummer, Judge. Action by L. T. & J. E. Lovell against the Boston & Maine Railroad for injuring plaintiffs' horse. There was a judgment for plaintiffs, and defendant excepted. Transferred from the superior court. Exception sustained. See, also, 75 N. H. 568, 78 Atl. 621, 34 L. R. A. (N. S.) 67. The court "ruled that the only question to be tried was as to the value of the horse, and that the matter of liability, or the validity of any contract under which the horse was being shipped at the time, were not in issue, both having been settled in the former trial." The defendant excepted. Doyle & Lucier. of Nashua, for plaintiffs. Hamblett & Spring, of Nashua, for defendant. PEASLEE, J. The question now presented in this case is how far, if at all, the issues of fact were settled by the former trial. At that trial it was ruled that the plaintiff's could recover but $100, and a verdict was' ordered for them in that sum. This was, in effect, a ruling that the evidence was conclusive upon these matters. It was based upon a written contract for limited liability. Upon exception it was held that the ruling was erroneous. The result was to set aside the order excepted to. No attempt was made to save any part of it, and it is not apparent how there was anything to save. Unless the order was correct. nothing had been tried. The verdict depended upon the order. If the order was erroneous, there was no verdict. Since there was no verdict nothing was concluded, and the case stood for trial as though no proceeding had been had, save that two questions of law had been determined. The plaintiffs now seek to separate out the verdict that the defendant is liable and retain the benefit of that part of the order, while relieved from the part which limited their damages. It is evident that the whole written contract was binding as matter of order was based upon the theory that the law. As this was not so, the foundation for the order as to liability as well as damages was removed, and neither is of any further validity. The fact that there was no exception to the order of a verdict that the defendant was liable is not material here. It is true, as the plaintiffs claim, that the defendant did not except to the order. The defendant made no claim that the order was erroneous. That position was taken by the plaintiff's, and sustained by the court. The proposition that the order could not stand For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes having been established, it was then open to | renders further proceedings with the first either party to urge any valid claim based jury impracticable, and necessitates a retrial upon the avoidance of the order. Error hav- of the whole case. ing been found in the proceedings, the question is whether there shall be a new trial of the whole case, or whether a part of the verdict can be saved. Lisbon v. Lyman, 49 N. H. 553, 600. The plaintiffs insist that, when the error is corrected, the application of the correction shall be limited to such phases of the case as will be favorable to them. Argument is not necessary to show the unsoundness of this contention. The effect of the error must be wholly removed from the case. This involves a new trial of all that was based upon the error. The error consisted in holding that the contract was conclusively established, and the liability found was one growing out of the contract. If there was no contract, there was no liability as a common carrier. The question how the horse was shipped-whether under a valid limited contract, or under a general common carrier's liability, or under no contract at all beyond a mere bailment-is still open, and involves (or may involve) material issues as to the duty imposed upon the defendant. The invalidity of the special contract, because of which the former order was set aside, consisted in the time and manner in which the contract was entered into, and not in the substance of the contract itself. The evidence not being conclusive that the contract was not made in violation of Vermont law, and a subsequent ratification not having been proved beyond question, it followed that it was error to take the question of the existence of the contract from the jury. This was all that the former trial and transfer of the case settled. Whether at that trial a verdict that the defendant was liable as a common carrier and for unlimited damages could have been ordered and sustained is a question which has never been decided by or presented to either court. The proposition presented was that the evidence was conclusive in the defendant's favor. The denial of this contention did not establish the antithetical one that the evidence was conclusive in favor of the plaintiffs. After the former decision, the case stood precisely as it would have if at the first trial the presiding justice had denied the defendant's The ruling at the last trial assumed that it had been settled that the limited contract was invalid; but, as before pointed out, all that was determined was that the evidence was not conclusive that the contract was valid. Its validity still remains to be tried on such evidence as the parties may produce and subject to the legal rules laid down in the former decision. Exception sustained. All concurred. (234 Pa. 172) SPRINGER v. PULLMAN CO. (Supreme Court of Pennsylvania. Jan. 2, 1912.) 1. CARRIERS ($$ 413, 397%*) - BAGGAGE CARE REQUIRED. Where baggage is delivered into the possession of a carrier, it becomes an insurer against all loss, except such as results from the act of God or the public enemy, but for the loss of personal effects which a passenger retains in his own possession while occupying a berth in a sleeping car the carrier is only liable for negligence. Cent. Dig. §§ 1583-1588, 1519-1528; Dec. Dig. [Ed. Note. For other cases, see Carriers, §§ 413, 397%.*1 2. CARRIERS (8 417*)-SLEEPING CAR COMPANY-LOSS OF PERSONAL EFFECTS. Plaintiff, on entering defendant's car, placfects under his berth, and, when he awakened ed a grip containing valuable personal efnext morning, the grip was missing. When he retired, the upper berth in his section was unoccupied, but was occupied during the night by a passenger who left the car at an intermediate point while plaintiff was asleep. There was no evidence explaining how the grip disappeared, and the only evidence of negligence was that of another passenger that, when he boarded the train after plaintiff had retired, the porter was on the platform, and later during the night he saw the porter in the washroom of the car. There was no proof, however, that while the porter was absent his post cient as a matter of law to show actionable was not filled by the conductor. Held insutinegligence. [Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 1590-1600; Dec. Dig. § 417.*] Appeal from Court of Common Pleas, Allegheny County. Action by Carl Springer against the Pulltain personal baggage lost from a sleeping man Company to recover the value of cercar in transit. Verdict for plaintiff for $2,000, and defendant appeals. Reversed. MESTREZAT, POTTER, ELKIN, STEWArgued before FELL, C. J., and BROWN, ART, and MOSCHZISKER, JJ. motion for a directed verdict. Unless further proceedings were then had, the whole trial would have gone for nothing. That the motion was granted in the superior court, which ruling was later set aside here, does not change the ultimate effect of what was done. In the end the motion was denied. If this had happened at the trial, the cause could then have proceeded to a verdict of the jury, in accordance with their views of the weight of the evidence. The lapse of time between making the motion in the su- STEWART, J. The damages here sought perior court and its final denial in this court to be recovered are not for loss of baggage Richard H. Hawkins and Howard T. Wilcoxon, for appellant. Churchill B. Mehard, W. H. Falls, and Samuel S. Mehard, for appellee. |