(80 N. H. 292) (116 A.) 1. Officers 30-Holding of legislative and judicial offices not prohibited by Constitution. Bill of Rights, art. 37, requiring the legislative, executive, and judicial powers to be kept separate and independent of each other, does not prevent the same person from holding offices such as supervisor of the check list, city councilman, and member of the Legislature, requiring him to exercise both legislative functions and judicial powers, especially as other articles limit the offices that may be held. 2. Municipal corporations 124(3)--Officers 30-Offices of supervisor of check list, city councilman, and member of Legislature may be held at the same time. Const. pt. 2, arts. 92-94, relative to the of fices officials may hold, or any other provision of the Constitution, does not prohibit one from holding at the same time the offices of supervisor of the check list, city councilman, and member of the Legislature. 3. Municipal corporations 142-Councilmen not prohibited from being police officers or fire engineer. Under Pub. St. 1901, c. 50, § 29, as amended by Act April 12, 1921 (Laws 1921, c. 100), city councilmen qualifying May 3, 1921, were not prohibited from also acting as police officers or fire engineers, where the remuneration did not exceed $100. 4. Constitutional law 50, 188-Municipal corporations 124 (3)-Statute permitting holding of different offices not invalid. Laws 1921, c. 100, amending Pub. St. 1901, c. 50, § 2, to permit city councilmen to hold other offices, the remuneration of which does not exceed $100, does not violate Bill of Rights art. 23, relative to retrospective laws, or article 37, requiring the separation of the legislative, executive, and judicial powers. the filing of this petition, Hamilton and Clark were elected members of the Rochester city council, and were holding the office of councilmen at the time of the filing of this petition. On the 5th day of January, 1921, Hamilton was elected a police officer and Clark a fire engineer. Neither of them qualified for these offices, but they performed the duties thereof. On the 3d day of May, 1921, by vote of the city council, these offices were declared vacant. Thereafter at the same meeting by vote of the city Council Hamilton was elected a police officer and Clark a fire engineer, and they there upon qualified as such officers. The annual salary of the police officer was $100, and of the fire engineer $75. Section 2 of chapter 50 of the Public Statutes provides that no member of the board of aldermen or common council shall be elected by the city councils, or appointed by the mayor and aldermen, to any office of profit. But by the Laws of 1921, c. 100, approved April 12, 1921, the above statute was amended, so that it contained the following provision: "But no person who is a member of the city councils shall be elected by the city councils or appointed by the mayor and board of aldermen to any office pertaining to elections or where the remuneration of said office exceeds the sum of one hundred dollars in any one year." At the February term, 1921, of the superior court, Marble, J., transferred without a ruling the questions whether the petition should be dismissed or whether the defendants should be ousted from any of said offices, and, if so, from what offices. H. D. Yeaton, of Rochester, for plaintiff. Smart & Smart, of Rochester, for defendants. PLUMMER, J. [1] It is contended by the Transferred from Superior Court, Straf- plaintiff that the defendant Meader cannot ford County; Marble, Judge. Suit in the nature of quo warranto by the State, by the Attorney General, against Harry H. Meader and others. Transferred, from the superior court without a ruling. Petition dismissed. Information, in the nature of quo warranto, to determine the rights of the defendants to certain public offices in Rochester. The petition was filed January 11, 1921. Meader was elected at the biennial election of November, 1920, a representative to the Legislature and a supervisor of the check list. At the time of his election to these offices he was a member of the city council of Rochester. He was holding all of these offices when this bill was filed. at the same time hold the offices of supervisor of the check list, city councilman, and member of the Legislature; that the holding of such offices by one person is forbidden by article 37 of our Bill of Rights, which is as follows: "In the government of this state, the three essential powers thereof-to wit, the legislative, executive, and judicial-ought to be kept as separate from, and independent of, each other as the nature of a free government will admit or as is consistent with that chain of connection that binds the whole fabric of the con stitution in one indissoluble bond of union and amity." The plaintiff states that Meader's duties as a member of the Legislature and of the city council require him to exercise legisla At regular city elections held prior to tive functions, and that as a supervisor of the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes check list he is called upon to exercise judicial powers, and consequently that he is inhibited by the Constitution from holding these offices at one time. The plaintiff misconstrues the article of the Constitution above quoted. All that is meant by the language there used is that one department of the state government shall not interfere with another department, or usurp its powers and authority; that the legislative, executive, and judicial departments should be separate and independent of each other so far as the efficient administration of the state government will permit. The first case in which article 37 of the Bill of Rights was considered was Merrill v. Sherburne, 1 N. H. 199, 8 Am. Dec. 52. The Legislature passed an act granting the plaintiff in that case a new trial. The court held that this was an exercise of judicial power, and could not be permitted under the Constitution. Other cases since have been decided that related to this clause in the Constitution. But never has it been held that it had any reference to the exercise by an official of legislative and judicial powers. is nothing in the Constitution that prohibits him from holding the offices to which he was elected by the suffrage of the people. [3] The plaintiff urges that Hamilton and Clark cannot hold the offices to which they were elected upon two grounds; one is the same as claimed against Meader which has already been considered and disposed of; the other is that, as they were members of . the city council, Hamilton could not be a police officer nor Clark a fire engineer because they were offices of profit, which they were by statute forbidden to hold. P. S. c. 50, § 2. By an amendment to this statute approved April 12, 1921 (Laws 1921, c. 100), city councilmen were permitted to hold offices of this character where the remuneration does not exceed $100. Therefore, when Hamilton and Clark were elected to these offices and qualified therefor May 3, 1921, the statute interposed no objection thereto. [4] The plaintiff asserts that chapter 100, Laws of 1921, violates articles 23 and 37 of the Bill of Rights; but no reason is adduced for the assertion except that the statute allows officials to hold different offices having judicial and executive functions, which, as already pointed out, is not a violation of the Constitution. Petition dismissed. All concurred. (80 N. H. 251) "The rules of law which govern both the business and the officers of the different departments of the state government were framed with reference to conducting the business of each department in the way to best promote the public welfare, but without special reference to the body of men who should perform the duties and exercise the functions of that department. *** It is the legislative de- BELKNAP COUNTY v. CITY OF LACONIA. partment, or the power to make laws, which the policy of the law exempts from the supervision and control of the court-not the body of (Supreme Court of New Hampshire. Belknap. men who have the supreme power to exercise this function." Sherburne v. Portsmouth, 72 N. H. 539, 541, 58 Atl. 38, 39. (No. 1776.) Jan. 3, 1922.) 1. Stipulations 18(9)-Defendant bound by agreement as to conclusiveness of findings. Where parties agreed as to the facts, and that the decision of the superior court should be final, an exception by the defendant to findings for plaintiff must be overruled. 2. Bail If, as claimed by the plaintiff, it were unconstitutional for an official to perform the functions of different departments of the state government mentioned in article 37 of the Bill of Rights, it would be impossible 87-County solicitor to sue for reto fill many important and necessary offices covery on forfeited recognizance. in the state. Members of city councils are Under Laws 1903, c. 28, § 2, Pub. St. 1901, called upon to perform legislative and ex- c. 252, § 31, it is the duty of a county solicitor ecutive or administrative acts. Selectmen to begin proceedings for the recovery of forfeited recognizances. of towns are judicial and administrative offi Sherburne v. Portsmouth, supra. And mention might be made of other public officers whose duties require them to exercise the functions of different departments of the state government. Exceptions from Superior Court, Belknap County; Kivel, Judge. Action by Belknap County against the City of Laconia. Findings for the plaintiff, and the defendant excepts. Exception over ruled. [2] It is apparent that article 37 of the Bill of Rights was not intended by its framers to limit the offices officials should hold, because in articles 92, 93, and 94 (part 2) Debt to enforce a forfeiture. One Maof the Constitution that subject is fully con- loney was convicted by the municipal court sidered. In those articles certain officials of Laconia, and appealed, failed to enter i are inhibited from holding other offices. But his appeal, and his recognizance was forthe inhibitions in these articles do not in- feited. The parties agreed as to the facts, clude the offices held by Meader, and there and that the decision of the superior court (116 A.) should be final. The court found for the PARSONS, C. J. [1] The defendants base plaintiff, and the defendant excepted. their contention that the court erred when Thomas P. Cheney, of Laconia, for plain-it denied their motion for a directed verdict tiff. Theo. S. Jewett, of Laconia, for defendant. YOUNG, J. [1,2] As the defendant agreed that the finding of the superior court should be final, it takes nothing by its exception; and that would also be true if it had not made that agreement. Laws 1903, c. 28, § 2 (P. S. c. 252, § 31) provides, in substance, that when a recognizance is forfeited the county solicitor shall begin proceedings "for the recovery of such forfeiture." Defendant's exception overruled. on the proposition that it cannot be found the plaintiff is entitled to the benefit of the federal Employers' Liability Act. 35 U. S. The evidence relevant to that issue tends to Stat. 65, c. 149 (U. S. Comp. St. §§ 8657-8665). The evidence relevant to that issue tends to prove that the plaintiff was engaged in repairing the track of the Manchester & Lawthat road extends from Lawrence, Mass., to rence Railroad when he was injured; that Manchester, N. H., and that it was operated by the defendants. It is obvious, it can be found from this evidence, that the plaintiff's work was so closely connected with interstate commerce as to entitle him to the benefit of the federal act. Pedersen v. Railroad, 229 U. S. 146, 33 Sup. Ct. 648, 57 L. Ed. 1125, Ann. Cas. 1914C, 153, note, pp. 163-167; 18 R. C. L. 855. The plaintiff testified that he was pushing a motorcar at the time the accident happened, and that one of his fellow employees named Card caused him to fall. Card was called by the defendants, and, after denying that he pushed the plaintiff was asked if he did not make a statement to one of the plaintiff's attorneys which was reduced to writing and signed by him. He admitted that he made a statement and signed the paper shown him, but denied that he ever told the attorney or any one else that he pushed the plaintiff as therein stated. The plaintiff's young daughter was called by him as a wit [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Inter-ness, and, after being asked a few questions state Commerce.] 2. Trial 129 - Argument of counsel held such as to require a finding that he was arguing and not testifying. Where evidence in an action under the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665) warranted an inference that plaintiff's counsel had put statements into a witness' mouth when the latter signed a statement, which was introduced to contradict his testimony, and defendant's counsel in argument charged plaintiff and his counsel with such misconduct, a statement of plaintiff's counsel in answer that the firm of which he was a member had been doing business a good many years, and that it had a name for honesty and integrity, held more like testimony than argument, so that verdict for plaintiff must be set aside, unless he procures a finding that his counsel was arguing and not testifying. Transferred from Superior Court, Hillsboro County; Sawyer, Judge. Action by James McLean against the Boston & Maine Railroad. Verdict for plaintiff. Case transferred. One exception overruled, and new trial ordered as to the other. Branch & Branch and Frederick Branch, all of Manchester, for plaintiff. Warren, Howe & Wilson and De Witt C. Howe, all of Manchester, for defendants. in regard to the work she did after her father was injured, was excused from testifying further. The defendants' counsel in commenting on these incidents charged the plaintiff and his counsel with putting statements into Card's mouth that he never made, and with soliciting the plaintiff's daughter to commit perjury. As these were inferences of which the evidence was capable the plaintiff's counsel felt called on, in closing, to answer them and in the course of his argument said: "Mr. Warren has insinuated flatly that the way my brother and myself, and inferentially Mr. McLean have presented this case has been sneaky, shrewd, astute, mean, and unfair. Not only that, but he has gone further in his insinuations, and insinuated that his little girl, whom you saw on the stand yesterday, has been in some way influenced by myself or her father or my brother to go upon the witness stand and commit perjury. As I said, gentlemen, I will admit youth and lack of ability, but I will not admit, and I will do everything in my power to deny, the accusation * * * that I have assisted or countenanced by the name of Branch to practice law in this or suborned perjury. I am not the first man state. This firm has been doing business a good many years, and I will say, and I believe, that the reputation which goes with that name * * * For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes for honesty and integrity and fair dealing is as good as that which goes with the name of Warren." [2] If the words counsel used are given their ordinary meaning, he was not asking the jury to find that he and his brother were not guilty of the offenses with which they were charged, and that their reputation for honesty and fair dealing was such as to negative such charges but was stating as forcibly as he could that that was the fact. In other words, the language counsel used tends to prove that he was testifying rather than advocating his client's cause when he made the statements excepted to. Since this is so, the verdict must be set aside, unless the plaintiff procures a finding that counsel was arguing, not testifying, when he made these statements, for they were relevant to the issues of the plaintiff's credibility and the defendants' fault, as well as to the issue of damages. Knapp v. Stone, 79 N. H. 32, 103 Atl. 1005; Crossett v. Brackett, 79 N. H. 102, 105 Atl. 5; Bjork v. U. S. Bobbin v. Shuttle Co., 79 N. H. 402, 111 Atl. 284. Defendants' exception to the denial of their motion for a verdict overruled. New trial nisi. 4. Appeal and error 263(1)-Exception to instruction not made at trial cannot be raised on appeal. that lawsuits by defendant against plaintiff had In an action for slander, in which evidence terminated in plaintiff's favor was admitted to show actual malice, failure to except to instruction that the outcome of the other lawsuits in plaintiff's favor was not conclusive on the question of malice on defendant's part prevents attacking the instruction on appeal. 5. Appeal and error 274 (3)-Exception to evidence held not sufficient to raise question of what it tended to prove. In an action for slander, an exception to evidence that lawsuits by defendant against plaintiff had ended in plaintiff's favor, competent in connection with other evidence establishing a malicious prosecution, did not raise the question that the evidence did not of itself tend to prove want of probable cause or malice. Transferred from Superior Court, Grafton County; Allen, Judge. Action by Joseph Saladino against James N. Gurdy. Judgment for plaintiff. Case transferred. Exception overruled. Proof by the plaintiff of actual malice on defendant's part was necessary. As tending to show it, evidence was admitted that other SNOW, J., did not sit; the others con- litigation between the parties, brought at curred. In an action for slander, in which actual malice had to be proved, evidence that at about the time of making the statement defendant had maliciously prosecuted a suit against plaintiff, and that the prosecution had ended in favor of plaintiff, and the facts essential to prove such prosecution, were competent as showing the state of defendant's mind at the time of making the statement, regardless of the fact that the acts proved establishing the malicious prosecution were otherwise actionable. 2. Libel and slander 104 (3)-Utterances of defendant showing malice in slander not limited to a repetition of the same charge. In an action for slander, admissibility of other statements of defendant showing malice is not confined to repetition of the same charge. 3. Libel and slander 104 (2)-In action for slander, all defendant's acts and deeds pointing to existence of malice at any date are ad missible. In action for slander, all defendant's acts and deeds that point to the existence of ill feeling at any date are admissible for what they are worth. about the time the slander was committed, was determined in the plaintiff's favor. The evidence was admitted in connection with other evidence tending to show the malicious character of the litigation. The defendant objected to all evidence of the litigation and its outcome, and excepted to its admission. The court instructed the jury without exception that "The outcome of the other lawsuits in the plaintiff's favor is not conclusive in showing malice on the defendant's part, but, if you find, taking into account all the evidence, that the defendant brought a suit against the plaintiff in bad faith, that would indicate a general disposition of ill will or malice on the defendant's part, and thus be applicable, if you so consider it, to his statement which is claimed by the plaintiff to be slanderous." There was no request for any modification or limitation of this instruction. Robert W. Upton, of Concord, and Scott Sloane, of Lebanon, for plaintiff. Fred S. Wright, of Woodsville, and Owen & Veazey, of Laconia, for defendant. PLUMMER, J. [1] The evidence tended to prove the following: The plaintiff and defendant had been engaged in farming operations for some two years prior to the alleged slander. On the 10th of April, 1919, the defendant came to the plaintiff's house, when the plaintiff was away in New York on business, and demanded that the plaintiff's wife give him a note for $1,000, claim (116 A.) ing that the plaintiff owed him that amount, | v. Moore, 2 Cush. (Mass.) 133, 137, cited by although he had never rendered the plaintiff the defendant and other Massachusetts cases. any statement showing such, or any, indebt-I Wigmore, Ev. p. 497. See, however, Comedness. The plaintiff's wife denied the in-monwealth v. Damon, 136 Mass. 441, 449. debtedness, and said she would go over the But this is not the rule in this state. Morebooks and show him. He answered that he over, acts, not words, are now in question. did not want any books. Then she told him he would have to wait until her husband came home. He said he did not want to see him; in fact he had rather see him in Orford cemetery. Then the defendant stated in substance that the plaintiff went to New York, not on business, but to see another woman, and that statement is the foundation of the present suit. "Anything defendant has ever said or done with reference to the plaintiff may be urged as evidence of malice. It is very difficult to say what possible evidence is inadmissible on this issue. The plaintiff has to show what was in the defendant's mind at the time of publication, and of that no doubt the defendant's acts and words on that occasion are the best evidence. But if plaintiff can prove that at any other time, before, or after, defendant has any The next day the defendant came again, ill feeling against him, that is some evidence and told the plaintiff's wife, if she did not that the ill feeling existed also at the date give him a note for $1,000, he would go to of publication; therefore all defendant's acts Woodsville and put them in trouble. She re- and deeds that point to the existence of any fused, and he immediately ordered suit such ill feeling at any date are evidence adbrought. Subsequently the plaintiff commenc-missible for what they are worth. In fact, ed an action against the defendant relative whenever the state of a person's mind on a to the same transactions. There was evidence that the attachment made by the defendant in his suit was excessive, and other evidence tending to show its malicious character. This evidence, as it appeared that the litigation was determined in favor of the plaintiff, authorized a finding that almost contemporaneously with the utterance of the alleged slander the defendant without probable cause brought an unfounded suit against the plaintiff, and would furnish a foundation for a suit for malicious prosecution. To particular occasion is in issue, everything that can throw any light on the state of his mind then is admissible, although it happened on some other occasion." Newell, Slander and Libel, 411. [4] The malicious prosecution of the plaintiff by the defendant was relevant to his state of mind, and the facts essential to prove such prosecution were competent. The fact that the acts proved establishing the same are otherwise actionable does not render the evi dence inadmissible. While without evidence [2] If the fact of a malicious prosecution of the termination of the former suit a suit by the defendant against the plaintiff was for malicious prosecution could not be maincompetent, the evidence necessary to establish tained, the absence of such evidence would that fact was necessarily admissible. not exclude or entirely deprive of weight on maintain such a prosecution the plaintiff in the issue of malice evidence of an excessive such a suit must prove the termination in attachment as in the case, or of an illegal his favor of the suit alleged to be malicious. one, as in Friel v. Plumer, supra. But, asCohn v. Saidel, 71 N. H. 558, 565, 567, 53 Atl. suming that such evidence would have been SOO. An adverse judgment in the former suit relevant and of some weight, its force as would establish that "that suit was not evidence would have been affected to some brought without probable cause" (Friel v. extent by the admission that there was probPlumer, 69 N. H. 498, 499, 43 Atl. 618, 76 able cause for the suit which would be the Am. St. Rep. 190) and be fatal to the main-effect of proof that the plaintiff recovered in tenance of a suit for malicious prosecution. the former suit (Friel v. Plumer, supra), or what is the same thing, in this, the failure "In actions of slander, evidence of the repe- of the plaintiff here, upon whom the burden tition of the same words, or of other words and acts of the defendant, tending to show his mal-lay, to prove the litigation resulted in his ice in uttering the words laid in the declaration, was admissible, whether such words or acts were themselves actionable or not." Severance v. Hilton, 32 N. H. 289, 293; Symonds v. Carter, 32 N. H. 458; Chesley v. Chesley, 10 N. H. 327. "You may give in evidence any words as well as any act of the defendant to show, quo animo, he spoke the words which are the subject of the action." Merrill v. Peaslee, 17 N. H. 540, 543. favor. [5] It was competent for the plaintiff to combat such inference by evidence of the fact. The evidence of the termination of the suit was competent. The jury might give greater weight on the question of malice to the fact, if they so found, that the suit was brought without probable cause, than they would to the fact of an excessive attachment made in a good cause of action. In Cohn v. Saidel [3] As to what other utterances of the de- the plaintiff in the original suit became nonfendant are admissible to show malice there suit. It was held that the fact of nonsuit is a wide difference in the rules in the dif- was competent and necessary, because prior ferent states. 1 Wigmore, Ev. §§ 403-406. termination of the suits complained of was In some the rule of admissibility is confined a fact necessary to be proved; but that the to a repetition of the same charge. Watson mere fact of voluntary nonsuit did not au |