STATE v. MARTIN.

(Supreme Court of New Hampshire. Rockingham. July 31, 1896.) LOTTERIES-POLICY-INDICTMENT.

Under Pub. St. c. 270, § 4, declaring that a lottery may be described as a pretended lottery, which shall be sufficient, whatever the proof may be, and it shall not be necessary to allege who is the owner of the property, nor who manages, conducts, or draws the lottery, or participates therein, an indictment charging that defendant "did unlawfully make and put up 'a pretended lottery called 'policy,'" etc., is sufficient.

Indictment charging that the respondent, H. Percy Martin, "did unlawfully make and put up a pretended lottery called 'policy,' contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state." Motion to quash. Motion denied.

Louis G. Hoyt, for the State. Calvin Page, for defendant.

CLARK, J. "In a complaint or indictment in any case arising under the preceding sections, a lottery may be described as a pretended lottery, which shall be sufficient, whatever the proof may be; and it shall not be necessary to allege or prove, upon trial, who is the owner of the property, nor who manages, conducts, or draws the lottery, or participates therein." Pub. St. c. 270, § 4. The game of policy being a lottery, the indictment sets forth all that is required under the statute. It charges the defendant with an offense in the words of the statute, and describes to him the particular kind of a lottery he is charged with making and putting up. State v. Follet, 6 N. H. 53; State v. Clarke, 33 N. H. 329; State v. Moore, 63 N. H. 9; Com. v. Wright, 137 Mass. 250; Com. v. Sullivan, 146 Mass. 142, 15 N. E. 491. denied. All concurred.

Motion

BANK COM'RS v. GRANITE STATE PROVIDENT ASS'N.

(Supreme Court of New Hampshire. Hillsboro. July 31, 1896.)

BUILDING AND LOAN ASSOCIATIONS-INSOLVENCY-LIABILITY OF BORROWING MEMBERS-ANCILLARY RECEIVERS.

1. A building and loan association required that a borrowing member either give notes for the amount actually advanced to him, and a premium, and pay interest on both sets of notes, or that he pay in addition to legal interest a premium of about 3 per cent. on the amount actually advanced. The association became insolvent, and an assignee was appointed. Held, that the assignee can collect of borrowing members only the amounts actually advanced to them, with interest at 6 per cent., and that premiums paid in excess of such interest must be credited on the principal of the loans.

2. Where a building and loan association becomes insolvent, its contracts with borrowing members cannot be enforced, but its affairs must be settled equitably as to creditors, and between members themselves; and borrowers required to pay amounts advanced to them are entitled, after debts of the association are paid, to

a pro rata dividend upon their share payments, equally with nonborrowers.

3. Where mortgages taken by a building and loan association as security for loans to its members have been transferred to third parties, interest afterwards paid thereon to the association is a trust fund, and must be paid in full by the assignee of the association to the holders of the mortgages.

4. Where the assets of an insolvent building and loan association include mortgages on property in different states, where ancillary receivers have been appointed, it is the duty of the assignee of the association to deliver such mortgages to the several local receivers, in order to enable them to adjust claims against the bor rowers in their respective states.

Petition by the assignee of the Granite State Provident Association, asking for instructions as to performance of his duties.

The Granite State Provident Association, incorporated in 1881 (Laws 1881, c. 233), and amended in 1887 (Laws 1887, c. 281), began business upon the plan of a building and loan association in 1888. In March, 1896, there were about 18,000 members, and of these about 1,700 had borrowed money of the association, and given mortgages on real estate to secure their indebtedness. The nonborrowing members were called "investors." Each member subscribed for one or more shares, of the nominal par value of $200 each, and paid $1 per month as dues on each share of stock so held by him. It was estimated that at the end of eight years the association could pay to each investor the sum of $200 for each share, and deliver up to each borrower any mortgages held against him. Any member might borrow an amount equal to the maturity value of the shares held by him. A borrower gave two mortgages as security for his loan; the first mortgage being for such an amount as would readily facilitate its sale by the association to third parties, while the second mortgage was always held by the association. In the second mortgage, the borrower agreed to pay the dues on the shares held by him until they should be worth $200 each, when the value of the shares would be sufficient to extinguish the principal of the mortgage debt; and the association agreed to pay the note secured by the first mortgage, and deliver to the borrower the canceled mortgages. The shares held by the borrower were assigned to the association as additional security. In making loans, two plans were adopted: On the gross premium plan, the borrower gave his notes for the amount loaned, including the premium, which was usually 20 per cent. of the total amount. If the borrower gave notes for $1,000 secured by mortgages, the actual amount advanced to him was $800. Such a borrower carried five shares, on which he paid $5 per month ($4 on the four shares representing the $800 loaned, and $1 on the premium share); and in addition to this he paid $5 interest each month ($4 being 6 per cent. interest on the $800 advanced, and $1 being 6 per cent. interest on the premium share). The difference between the amount actually

loaned and the face of the mortgage notes is ! the gross premium. On the cash premium plan, a borrower of $800 paid $4 per month on four shares, and $4 per month interest on the amount loaned. In addition to this, he paid a monthly premium of $2, or 3 per cent. per annum, on the amount loaned. In some cases the cash premium was more than 3 per cent. March 18, 1896, upon petition of the bank commissioners, the association was enjoined from doing any further business, and an assignee was appointed to wind up its affairs.

He found that, prior to his appointment, several borrowers had paid the interest on their first mortgages held by third parties, and that these sums had never been paid to the first mortgagees. The mortgages taken by the association were on real estate in several states, and such of them as had not been sold were among the assets turned over to the assignee. In some states, ancillary receivers were appointed, who proceeded to collect the amounts due on mortgages of real estate in their respective jurisdictions. Some of the receivers demanded such securities of the assignee, but he refused to surrender them. The assignee asked for instructions, as follows: "(1) Do all mortgages held by the association against the members become due by the appointment of the assignee, regardless of the times or terms of payment set forth in the same? (2) Can the assignee collect of a borrower any more than the amount actually advanced, or, in other words, can the gross premium be collected? (3) If the gross premium cannot be collected, should the interest on such gross premium to March 18, 1896, be applied on the amount actually advanced, or be retained according to the tenor of the contract to that date? (4) Should the cash premium paid previous to March 18, 1896, be applied on the amount actually advanced, or be retained according to the tenor of the contract to that date? (5) What disposition should be made of interest paid by members previous to March 18, 1896, to the association, and now held by it? (6) Shall the assignee surrender mortgages on real estate in any state where an ancillary receiver has been appointed, to such receiver?"

David A. Taggart and Elijah M. Topliff, for assignee. Harry E. Loveren and Lexow, Mackellar & Wells, for New York receiver. Harry E. Loveren, for Rhode Island and Michigan receivers. Streeter, Walker & Hollis and Jewett & Plummer, for association.

CLARK, J. The assignee of the defendant corporation, upon his petition properly brought before the court, asks for instruction in the performance of his duties, and files certain questions setting out the particular matters concerning which he desires information. In the absence of a case calling for a decision, the court is not inclined to answer the first question.

The assignee can collect of a borrowing member only the amount actually advanced by the association. The mortgagor cannot be compelled, under the circumstances, to pay more than the sum actually received by him, with legal interest thereon. The insolvency of the defendants terminates their operations as a building and loan association, and the contracts made with borrowing members cannot be enforced. The only thing that remains to be done is to wind up the affairs of the association equitably as to creditors, and as between the members themselves. Borrowers who are required to pay the amounts actually loaned to them, with interest, will be entitled, after the debts of the association have been paid, to a pro rata dividend upon their share payments, equally with nonborrowers. They will thus be held to the payment of their share of the losses. Strohen v. Association (Pa. Sup.) 8 Atl. 843.

As the insolvency of the association and the appointment of an assignee have terminated the contracts with the borrowing members, the interest paid upon the gross premiums to March 18, 1896, and the cash premiums paid to the same date, by virtue of those contracts, should be applied in reduction of the amounts actually advanced to the borrowers as a payment made for that purpose. In other words, all payments on the loan accounts in excess of 6 per cent. per annum are to be credited on the principal of the loans, and deducted from the amounts actually advanced to the borrowers, in determining their indebtedness to the association.

The money received by the association prior to March 18, 1896, and now in the hands of the assignee, was paid for the purpose of meeting the interest due on the mortgages. Payment to the association was payment to the mortgagees. The association could have no interest in these funds, and no duty to perform, other than to pay to the holders of the first mortgages the sums to which they are severally entitled. The funds were received as trust funds, and must be paid in full by the assignee to the holders of the first mortgages. York v. Market Co., 68 N. H. 419, 37 Atl. 1038.

The association did business in many states, and the assignee now has in his possession mortgages of real estate in several states where ancillary receivers have been appointed. The assignee can collect none of these mortgages, as against the local receivers, who will be forced to resort to foreclosure proceedings in all cases to obtain decrees for the protection of the mortgagors. Under these circumstances, a majority of the court are of opinion that the assignee should deliver the mortgages and evidences of indebtedness in his hands to the local receivers, who will then be enabled to collect and adjust the claims against borrowers in their respective states, leaving the matter of distribution of the funds to the orders and decrees of the courts. Case discharged.

CARPENTER. C. J., and PARSONS and PIKE, JJ., did not sit. The others concurred.

KENT et al. v. TOWN OF EXETER. (Supreme Court of New Hampshire. Rockingham. July 31, 1896.)

TAXATION-PERSONAL ESTATE OF DECEASED TAXABLE TO ADMINISTRATOR — PLACE OF TAXATION-WRONGFUL TAXATION TO HEIRS -PETITION BY ADMINISTRATOR FOR ABATEMENT.

1. Under Pub. St. c. 56, providing that personal property of a deceased person in the hands of an administrator is taxable to the resident administrator, in the town in which such administrator resides, bank stock of a deceased is taxable to his administrator, in the town in which the administrator resides, and cannot be taxed to the heirs, in the town where they reside, since section 26, providing that the estate of a person deceased may be taxed to the widow, to any of the children, to the heirs, or to any other person who will consent to be considered as in possession thereof, applies only to cases where at the time of the assessment no administrator has been appointed.

2. The fact that the personal estate of a deceased was taxed to his heirs, to whom it was not legally taxable, does not prevent his administrator, to whom it was by law taxable, from maintaining a petition for the abatement of the wrongful assessment.

Petition by George E. Kent, of Pittsfield, administrator of the estate of John J. Bell, late of Exeter, and the heirs of said John J., residents of Exeter, for the abatement of a tax assessed by the selectmen of that town against the heirs of John J. Bell upon bank stock belonging to Bell's estate. The bank stock was duly returned for taxation in Pittsfield by Kent, and there taxed. The defendants demur to the petition. Demurrer overruled.

Burnham, Brown & Warren and William P. Chadwick, for plaintiffs. Eastman, Young & O'Neill, for defendants.

PARSONS, J. The personal estate of a person deceased is taxable to his administrator, resident in this state, in the town in which such administrator resides, except in the case of a special administrator appointed because of delay in determining the final grant of administration. Pub. St. c. 56, §§ 14, 26, 27; Id. c. 188, § 21; Laws 1885, c. 56; Laws 1832, Nov. Sess., c. 105, §§ 1, 2; Laws 1830, p. 556; Laws 1827, c. 59; Rev. St. c. 40, § 12. The defendants claim the personal estate of the deceased is taxable in Exeter to his heirs, under Pub. St. c. 56, § 26. This section, corresponding to Rev. St. c. 40, § 11, is intended to apply to the not uncommon case where at the time of the assessment no administrator has been appointed. The section is as follows: "Estates of persons deceased may be taxed to the widow, to any of the children, to the heirs, or to any other person who will consent to be considered as in possession thereof." Pub. St. c. 56, § 26. If this section were the only statutory provision

It

upon the subject, its provisions, upon the facts alleged, would not authorize the assessment in Exeter of the tax complained of. Upon the grant of administration, the title to all the personal estate of the deceased vested in the administrator, Kent, as trustee for the heirs and creditors. Parsons v. Parsons, 9 N. H. 309; Ladd v. Wiggin, 35 N. H. 421, 430. The petition alleges, in substance, that the petitioner, Kent, was in possession of the property, and consented to be taxed therefor. The property, not being within any of the exceptions to the general rule that personal property is taxable in the town where the owner resides (Pub. St. c. 56, §§ 1, 7, 9, 10, 15-19), was legally taxable in Pittsfield. was also there taxable under the section cited by the defendants, for it was legally in the possession of Kent as administrator, and his consent, if necessary, that he "be considered as in the possession thereof," is the only inference deducible from the facts alleged. Being legally taxable in Pittsfield, it could not, without violation of constitutional and statutory provisions, be also taxed in Exeter. Const. art. 5; Pub. St. c. 55, § 10. Kent, not being a resident of Exeter, was not required, under Id. c. 57, to file an inventory with the selectmen of Exeter, and it is not claimed he is in fault for not doing so. His failure to file such inventory, therefore, does not prevent the maintenance by him of this petition. Town of Farmington v. Downing, 67 N. H. 441, 442, 30 Atl. 345; Carpenter v. Dalton, 58 N. H. 615, 617; Guaranty Co. v. Portsmouth, 59 N. H. 33; Manufacturing Co. v. Strafford, 51 N. H. 455, 470-472; Dewey v. Stratford, 40 N. H. 203, 207. The fact that the property was taxed to persons to whom it was not legally taxable cannot prevent the maintenance of this petition for the abatement of the wrongful assessment by the person to whom it was by law taxable, without disregarding "the comprehensive standard of justice which the legislature plainly established," and doing violence to the principles of natural justice, in the spirit of which the statute which is the foundation of the present proceeding has been heretofore construed. Carpenter v. Dalton; Guaranty Co. v. Portsmouth; Dewey v. Stratford, supra; Melvin v. Weare, 56 N. H. 436; Manchester Mills v. Manchester, 58 N. H. 38; Perley v. Dolloff, 60 N. H. 504. The petition being maintainable by Kent as administrator, it is not necessary to consider whether, upon the facts, it could be maintained by the other plaintiffs alone. Demurrer overruled. All concurred.

JENNESS v. JONES. (Supreme Court of New Hampshire. Strafford. July 31, 1896.)

TRESPASS-PLEADING-EVIDENCE-INSTRUC

TIONS SPECIAL VERDICT-AMENDMENT.

1. Whether justice required the allowance of an amendment to a declaration in an action of

trespass, adding a count alleging that defendant's acts were malicious, and terrified plaintiff, and injured her feelings, was a question of fact for the trial term.

2. Evidence tending to show that defendant had made admissions in plaintiff's favor, in an interview had for the purpose of settling the controversy after action brought, was admissible where such admissions were not made under an offer of compromise.

3. Where the jury assessed plaintiff's damages in trespass at $25, and injury to plaintiff's feelings at $70.38, and, on the court's inquiry before they separated, stated that the $25 was compensation for injury to the land and the $70.38 was compensation for plaintiff's fright and mental shock, and the foreman, under the court's direction, signed a general verdict for $95.38, such inquiry and direction of a general verdict were not error.

Exceptions from Strafford county.

Action between Jenness and Jones. Defendant brings exceptions. Overruled.

Trespass quare clausum. The plaintiff introduced testimony, subject to the defendant's exception, tending to show that the defendant made certain admissions in favor of the plaintiff in an interview had upon the premises after the action was brought, for the purpose of settling the controversy and avoiding litigation. The defendant denied that he made the admissions. The jury were instructed (without exception), in substance, that if, in the course of negotiations for a compromise, the defendant made statements of fact in the nature of admissions. they would be competent evidence; but, if he did not make any of the statements claimed to be admissions, the testimony concerning the interview would be incompetent, and should not influence them in the least in forming their verdict. The plaintiff was permitted to amend the writ by adding a count alleging that the defendant's acts were malicious, and terrified the plaintiff, and injured her feelings. Testimony was introduced by the plaintiff tending to sustain these allegations, and the jury were instructed that, if they found for the plaintiff, and that she was frightened and shocked by the defendant's malicious acts, she was entitled to compensation for such injury in addition to compensation for injury to the real estate. The jury returned a verdict for the plaintiff, assessing damages "in the sum of $25; injury to the plaintiff's feelings, $70.38." In reply to an inquiry by the court before they separated, they said the $25 was compensation for the injury to the land and the $70.38 was compensation for the plaintiff's fright and mental shock. The court thereupon directed the foreman to sign a general verdict for $95.38, which he did. The defendant's counsel were not present when this was done. No exception was taken by the defendant to any of the matters stated in this paragraph until several days afterwards. The defendant moves to set aside the verdict for alleged errors herein stated.

Worcester, Gafney & Snow, for plaintiff. Samuel S. Parker and James A. Edgerly, for defendant.

PARSONS, J. Whether justice required the allowance of the amendment auuing an additional count to the declaration was a question of fact determinable at the trial term. Morgan v. Joyce, 66 N. H. 476, 30 Atl. 1119; Broadhurst v. Morgan, 66 N. H. 480, 29 Atl. 553; Gage v. Gage, 66 N. H. 282, 292, 29 Atl. 543. The exception to the evidence admitted cannot be sustained. The rule is strictly held in this state that an offer to compromise is not to be shown, on account of the tendency such a practice would have to discourage the settlement of disputes. But it is at the same time held with equal clearness that any independent admission, though made in the course of negotiations for a compromise, may be shown. Colburn v. Town of Groton, 66 N. H. 151, 156, 28 Atl. 95, citing Plummer v. Currier, 52 N. H. 287, 296; Harrington v. Inhabitants of Lincoln, 4 Gray, 563, 567; Durgin v. Somers, 117 Mass. 55, 61; Draper v. Inhabitants of Hatfield, 124 Mass. 53, 56; Evans V. Smith, 5 T. B. Mon. 363. The only question in the present case appears to have been whether the statement to the evidence of which exception is taken was in fact made. It does not seem that there was any claim that the statement was made or intended as part of an offer of compromise, or was other than an independent admission, though made in the course of negotiations for compromise. The defendant's contention was that he did not make the statement at all; not that he made it under cover of an offer of compromise. The dispute upon this point was properly submitted to the jury under instructions to which there is no exception, and the jury were distinctly told, in substance, that the fact of the attempted compromise was not evidence which should influence them. If the facts were otherwise, and there had been dispute whether the statement of which evidence was introduced had been made as an independent admission of fact in the course of negotiations for settlement, or was made as part of an offer of compromise, in the one case it would have been admissible; in the other, not. If, upon the evidence, it had been doubtful whether the alleged admission was intended as an independent statement of fact or not, the evidence might properly have been submitted to the jury with instructions to "ascertain the meaning of the party making it, and * ** inquire and consider what were the views and intention of the defendant in making it; that if, viewing it in this way, they should find that it was intended by him as an admission of a fact, then it is to be considered by them as evidence, otherwise they will lay it out of the case." Colburn v. Town of Groton, 66 N. H. 151, 158, 28 Atl. 95; Bartlett v. Hoyt, 33 N. H. 151, 154, 165, 166; Field v. Tenney, 47 N. H. 513, 515, 521; Hall v. Brown, 58 N. H. 93, 94, 98; Carr v. Ashland, 62 N. H. 665, 668. But the question of fact upon which, in such case, the competency, or otherwise, of the evidence depends, need not necessarily be submitted

to the jury, but may be found by the court in passing upon the competency of the evidence. Colburn v. Town of Groton, supra. It is not suggested that in the present case there was any such dispute, or, if there were, that there is any ground upon which the finding of fact involved in the ruling of the court admitting the testimony should be set aside as against the evidence. Colburn v. Town of Groton, 66 N. H. 154, 160, 28 Atl. 95. No error appears in the inquiry by the court of the jury, or in the direction of the general verdict (Dearborn v. Newhall, 63 N. H. 301), even if the exceptions thereto had been seasonably taken, as required by the fifty-third rule of court (56 N. H. 590). Exceptions overruled.

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

NEW HAVEN STEAM SAWMILL CO. et al. v. CITY OF NEW HAVEN et al. CANNON v. SAME.

(Supreme Court of Errors of Connecticut. Nov. 7. 1899.)

MUNICIPAL CORPORATIONS-CHANGE OF
GRADE-INTEREST ON DAMAGES.

In an action for damages caused by change of grade, plaintiffs should be allowed interest from the time their damages were liquidated to that when they are put into formal judgment, where there are no delays attributable to plaintiffs' fault.

Andrews, C. J., and Hamersley, J., dissenting.

Motion by plaintiffs that interest be allowed on sums for which judgment had been advised. 44 Atl. 233. Granted.

Henry Stoddard and John W. Bristol, for plaintiffs. George D. Watrous and A. Heaton Robertson, for defendants.

PER CURIAM. The question whether interest should be allowed, in addition to the principal sums reported by the committee, was not made the subject of argument by counsel, nor consideration by the court, when the cause was heard at the June term. The terms of the rescript which was sent down are such as to exclude its allowance. Upon consideration of the present motion, we are of opinion that no allowance should be made. in the nature of interest from any date prior to that of the filing of the committee's report. At that date, however, the damage which the plaintiffs have suffered was definitely ascertained. The delays which have followed are not attributable to their fault. To give them just compensation for the injury which has been occasioned to them for the public good, it is necessary to make them an allowance in the nature of interest from the period when their damages were liquidated to that when they are put into formal judgment. It is therefore ordered that in recordng the judgments of this court in said causes the advice given be entered as advice to render judgment in favor of the New Haven

44 A.--39

Steam Sawmill Company for the sum of $22,762.84, and in favor of John S. Cannon, executor, for the sum of $12,444.95, with legal interest on said respective amounts from the date of the filing of the committee's report, and costs; and that the costs of this court be also taxed in favor of the respective plaintiffs.

HAMERSLEY, J. (dissenting). The statutory liability for damages caused by change of grade involves no liability for interest until the amount of the damage is determined according to law. Nonpayment by the parties responsible for the damage before that time is not a breach of duty for which interest can be allowed.

ANDREWS, O. J., concurred with HAMERSLEY, J.

FARMINGTON VILLAGE CORP. v. FARMINGTON WATER CO. (Supreme Judicial Court of Maine. Oct. 5, 1899.)

SALES-CONTRACT-OPTION-SPECIFIC PERFORMANCE.

The defendant water company contracted in writing to supply the plaintiff village corporation with water for a term of years, and also agreed in the same writing to terms by which, at the expiration of the term, the plaintiff might take over the defendant's rights and works at an appraisal to be fixed by three disinterested men, one to be selected by each of the parties, and a third one by the two so selected, said appraisal to be the sum at which the plaintiff "shall have the right to buy said rights and works, and for which said company agree to sell said corporation the works and rights aforesaid."

At the expiration of the term the corporation voted "to proceed to ascertain the price at which it may purchase the works and rights" of the water company, as provided in the contract, and selected a disinterested appraiser. The defendant company, though notified thereof, and requested to select an appraiser on its part, declined so to do, insisting that it was not required to do so, by the terms of the contract, until the village corporation had first bound itself to purchase at whatever sum might be fixed by the appraisers.

Upon a bill in equity by the plaintiff to obtain specific performance of the contract by compelling the water company to select such an appraiser, held, that the defendant water company clearly and expressly yielded an agreement to sell at the appraisal; that the village corporation did not, even by inference, yield an agreement to buy at the appraisal; that it, however, retained the right to buy, and that this option of purchase was to be exercised after the appraisal.

(Official.)

Report from supreme judicial court, Franklin county.

Bill by the Farmington village corporation against the Farmington Water Company. Bill sustained.

Bill in equity, heard on bill, answer, and testimony to compel specific performance of a contract dated October 17, 1891, between the parties, by which the plaintiff claimed it had the right to purchase, and the defendant