That the legislature intended the provision for entry on the first day of the term to be imperative is apparent when it is seen that serious complications might arise if the entry was permitted at a later day. Section 25 of the insolvent law, relative to proof of claims against the estate, gives an appeal to the claimant or assignee from the decision of the judge allowing or rejecting a claim, the appeal to be governed by section 12, which provides for entry on the first day of the term, and, if not so entered, the proceedings in the insolvency court to go on as if no appeal had been taken. If the claim is allowed by the judge, and the assignee appeals, but fails to enter, his appeal on the first day, the insolvency court may order distribution of assets among the creditors, including this contested claim, which may be paid by the assignee, and later the appellate court may reject the claim. Or if the claim is rejected by the insolvency court, and the creditor appeals, and neglects to enter his appeal on the first day, the estate may be distributed in the insolvency court among the creditors, exclusive of the rejected claim, and, if the appellate court allows the claim, there may be no unexpended assets to apply to it.

These complications are avoided by holding, as we do, that the appeal must be entered on the first day of the term of the appellate court, and that there is no power in the court to permit an entry at a later day. Exceptions sustained.

Entry of appeal disallowed.

4. If the trustees did not accept the trust, the instrument was of no effect; and, if the plaintiff had no notice, he was not affected in any event. (Official.)

Exceptions from supreme judicial court, Piscataquis county.

Action by William M. Smith against Charles C. Smith and another. Verdict for plaintiff. Defendants except, and move for a new trial. Overruled.

This was an action of assumpsit upon an account annexed, brought by the plaintiff to recover from the defendants, as co-partners, an amount that he claimed to be due to him for his personal labor while in their employ. account is as follows:

The

SMITH v. SMITH et al.

(Supreme Judicial Court of Maine. Nov. 28, 1899.)

PARTNERSHIP-DISSOLUTION-EXCEPTIONS. 1. If parties would obtain any benefit from their exceptions, it is incumbent upon them to set forth enough in their bill of exceptions, so that the court may determine that the points raised are material, and that the instructions are both erroneous and harmful. The court will not travel out of the record to imagine the ills that litigants are heir to.

2. A requested instruction to the jury that "the employment of a relative by one partner, at an exorbitant price, without the knowledge or consent of the other partner, does not bind the firm," was refused by the presiding justice, who instructed the jury that the employment must be in good faith. Nothing appeared in the case to show upon what ground this request for instruction was made, except the fact that by the contract the person employed was to receive $75 per month. Held, that the instruction was correct.

3. In an action by the plaintiff to recover pay for services rendered to the defendants as copartners, the defendants claimed that the co-partnership was dissolved by the giving of a "trust mortgage" by one partner, Smith, without the knowledge or consent of the other, Williams, and that Smith could not thereafter employ the plaintiff on the credit of the firm.

Inasmuch as it did not appear that the "trust mortgage" was a conveyance of all the

Some time prior to April 25, 1896, the defendants became co-partners in the operating of a slate quarry in the town of Brownville. On the 25th day of April, 1896, the plaintiff went to work for the defendants. At that time no agreement as to the amount of wages was made. The plaintiff claimed that at some time prior to the 12th day of October, 1896, he made an agreement with his father, one of the co-partners, fixing the price of his wages at $75 per month. The defendant Williams claimed that the plaintiff had received in full all that was due to him for wages from April 25, 1896, to October 12, 1896, and that from October 12, 1896, to March 31, 1897, the defendants were not liable. Some time prior to October 12, 1896, the defendant Charles C. Smith went to Dover to consult an attorney in regard to the amount of debts owed by the co-partners. As a result of that conference a paper was drawn up, called a "trust mortgage," and given by the defendant Charles C. Smith, for said co-partners, to J. B. Peaks and others. It did not appear that the trustees named in said paper accepted the trust or acted as trustees. At the date this trust mortgage was made and given, the defendant Williams was in Canada. Upon his return to Brownville he claimed to have repudiated everything that was done by Smith in giving the trust mortgage and in caring for the property.

The defendants' counsel claimed that the copartners were not liable for any debt incurred after the 12th day of October, 1896. They claimed that the giving of the trust mortgage was a dissolution of the co-partnership. Upon this branch of the case the court instructed the jury as follows:

"The construction of all written instruments is for the court, and not the jury, because it is not a fact to be passed on by the jury. The writing shows for itself. It therefore becomes my duty to give a construction to be placed upon that paper. The contention of the deThe contention of the defendants is that this was such an instrument as dissolved the partnership at that time, so that the partnership did not continue after the 12th day of October. They say, further, the partnership being dissolved by reason of that paper, or whatever occurred, that Mr. Smith, Sr., could not bind the firm by the employment of his son to look after the business at the quarry. It is true that one partner may by certain conveyances dissolve a partnership. If, for instance, he assigns all the property and effects of the partnership for the benefit of the creditors, it dissolves the partnership, because all the property is swallowed up. But a partner may sell property to pay debts. Any one partner may sell the personal property of the firm to pay debts, and he may pledge the property of the firm to pay debts, and by so doing the partnership is not dissolved. So I instruct you, as a matter of law, that this trust mortgage, being a mortgage simply, did not, in and of itself, dissolve the partnership, but the partnership continued notwithstanding."

The defendants claimed that the co-partnership was dissolved, and, being dissolved, Charles C. Smith could not make any contract to bind his co-partner. Upon this branch of the case the court instructed the jury as follows:

"But it is claimed that Mr. Smith, the partner, said to Mr. Williams that the partnership was dissolved. When there is a partnership at will, no time being named, one partner may dissolve the partnership (that is, give notice of the dissolution of the partnership), and the partnership, except so far as may be necessary to wind up the business, is dissolved. But there must be a distinct notice of dissolution. It must be a notice to the other partner which is certain,-not left to conjecture. Now, my recollection of the testimony is that Mr. Smith, the elder, testified that he said to Mr. Williams that the partnership was dissolved by reason of this trust mortgage. And I instruct you that the trus. mortgage did not of itself dissolve the partnership. The question as to whether what was said and done afterwards amounted to a dissolution of the firm is a question of fact for you to determine, and, in determining that, you will remember what the testimony is as to what was said between the parties."

The defendant John J. Williams claimed that

the co-partnership was dissolved; that, the co-partnership being dissolved, the defendant Charles C. Smith had no authority to hire the plaintiff, and bind the defendant Williams as a co-partner. Upon this branch of the case the court instructed the jury as follows:

"So I instruct you that if Mr. Smith, the plaintiff, was there in charge of the quarry under his father, and with the knowledge and consent of Mr. Williams, that he is entitled to recover compensation for what he did there; and, even though the partnership had been dissolved, he would recover such compensation, because, while, after the dissolution of the partnership, the authority of partners as agents for one another ceases, in a general way, so far as the transaction of the business of the firm is concerned, yet it continues so far and so long as may be necessary for the winding up of the affairs of the partnership, and of caring for, preserving, and disposing of the property; and for those purposes (the care of the property, the disposition of the property, and the winding up of the partnership affairs) the agency of one partner for all continues. So that if Mr. Smith, Sr., the partner, did in fact employ his son to look after the property, in the interest of the partnership, and he performed those duties, then the firm would be liable. He would bind his co-partner so far. He could not bind him generally as a partner, but to the extent of the preservation of the property."

The defendants' counsel asked the court to give the following instructions to the jury, which requested instructions the court, declined to give: "That the employment of a relative by one partner at an exorbitant price, without the knowledge or consent of the other partner, does not bind the firm." As to this request the presiding justice said to the jury: "I think I will not instruct you in the terms requested, but I do instruct you that the employment must be in good faith; and I think that covers it."

The defendants' counsel also asked the court to instruct the jury "that if they find that either or all of the trust mortgagees in the mortgage given by C. C. Smith entered into possession, either actual or constructive, of the mortgaged property, under said mortgage, then the partnership was dissolved."

The court declined to give the instruction, and said to the jury: "I have covered it fully. This is a question, whether they entered into possession, but I think I will decline to give the instruction requested."

To these several instructions of the court to the jury, and its refusal to give said requested instructions, the defendants excepted.

The jury returned a verdict in favor of the plaintiff for the full amount claimed by him.

The defendants also filed a motion for a new trial, but did not report the evidence, and did not argue the motion. The charge to the jury was reported in full, with the bill of exceptions.

J. B. Peaks and E. C. Smith, for plaintiff. C. W. Hayes and H. Hudson, for defendants.

SAVAGE, J. This is an action brought to recover an amount which the plaintiff claims to be due to him for his personal labor while in the employment of the defendants, as copartners, from April 25, 1896, to March 31, 1897. No price was agreed upon at the time he began to work, but the plaintiff claims that he subsequently, and prior to October 12, 1896, made an agreement with his father, one of the defendants, fixing his wages at $75 a month. It is not denied that the defendants were partners from April 25, 1896, to October 12, 1896, doing business under the name of East Brownville Maine Slate Company. But on this lastnamed day an instrument, called in the bill of exceptions "a trust mortgage," was given by the defendant Smith, as co-partner, to J. B. Peaks and others. It was given without the knowledge of the defendant Williams. It purported to convey certain property of the copartnership, namely, "all the slate manufactured and now at the quarry in said Brownville, and all slate to be hereafter manufactured in said quarry, by said East Brownville Maine Slate Company, and all tools, machinery, and apparatus owned by said East Brownville Maine Slate Company." The conveyance was expressed to be in trust "to pay the workmen in said quarry, and other creditors of said East Brownville Maine Slate Company." The names of the creditors and the amount of their claims are all given.

The defendants claim that the giving of the trust mortgage was a dissolution of the copartnership, that the co-partners were not liable for any debt incurred after it was given, that the defendant Smith could not by contract bind Williams after the dissolution, and hence that the plaintiff cannot recover against them, as co-partners, for any labor performed after October 12, 1896.

It may be conceded, as claimed by the learned counsel for the defendants, that when one partner, without the knowledge or consent of the other, makes a sale or assignment of all the property of the firm, or gives a general assignment for the benefit of creditors, it works a dissolution of the firm. Yet it does not follow that this partnership was thus dissolved, or, if it was, that this plaintiff was affected thereby. In the first place, the case does not show, either on the face of the instru

mortgage was a conveyance of all the property of the firm. Again, the exceptions expressly state that it did not appear at the trial

that the trustees named in the instrument accepted the trust or acted as trustees. Further, it does not appear that the plaintiff had notice of any dissolution of the firm by any method whatever.

Under these conditions, all the instructions given or refused, touching the dissolution of the co-partnership, became immaterial. They were based upon the theory that the trust mortgage became effective, and that the plaintiff might be affected thereby. If the trustees did not accept the trust, the instrument had no more effect than any other piece of paper. Or, if they did accept the trust, the plaintiff, who was then, and for a long time had been, under contract relations with the defendants, as a co-partnership, would not be affected, without notice. He would still have the right to labor under his contract, and would still be entitled to recover his pay.

So far as appears by anything that the record contains, it has not been shown that the instructions were either wrong or prejudicial. If the defendants would obtain any benefit from their exceptions, it was incumbent upon them to set forth enough in their bill, that the court may determine that the points raised are material, and that the instructions were both erroneous and harmful. It has been so held too many times to require the citation of authorities. The court cannot travel out of the record to imagine the ills that litigants are heir to.

These considerations dispose of all the exceptions save one. The presiding justice was requested by the defendants to instruct the jury that "the employment of a relative by one partner at an exorbitant price, without the knowledge or consent of the other partner, does not bind the firm." The presiding

justice declined to instruct in the terms requested, but did instruct the jury that the employment must be "in good faith." Nothing further appears in the case to show upon what ground the request for instruction was made, except the fact that by the contract the plaintiff was to receive $75 a month. The instruction given was, we think, all the defendants were entitled to, from anything that appears in the case.

The defendants do not rely upon their motion.

Motion and exceptions overruled.

WARNER v. WARNER. (Supreme Court of New Hampshire. Rockingham. July 30, 1897.)

DIVORCE EVIDENCE OF REPUTATION.

In an action for divorce on the ground of defendant's adultery, testimony as to defendant's general reputation for virtue and chastity is admissible.

Exceptions from Rockingham county.

Libel for divorce by James E. Warner against Mary I. Warner on the ground of adultery. On a judgment in favor of defendant, plaintiff excepts. Exceptions overruled.

Subject to the plaintiff's exception, the defendant was permitted to introduce testimony relating to her general reputation for virtue and chastity.

Eastman, Young & O'Neill, for plaintiff. J. Warren Towle and John S. H. Frink, for defendant.

CARPENTER, C. J. Libels for divorce are, and, until the legislature otherwise provides, must be, tried by the court. Const. art. 76 (now article 75); Sheafe v. Sheafe, 24 N. H. 564, 567. "The jurisdiction in cases of divorce a vinculo matrimonii is unknown to the common law, ✶ ✶ ✶ and is exercised in modes unknown to the common law." Brown v. Brown, 37 N. H. 536, 537. In the trial the court has never been governed by strict rules of evidence or practice, and has always exercised a broad discretion, as well in the admission of evidence as in other respects. Sheafe v. Sheafe, 24 N. H. 564, 568. This, doubtless, is one reason for the fact that only two or three of our numerous reported cases relate to the competency of evidence. Although, by the common law, and until the act of 1857 (Laws 1857, c. 1952), a party to a civil action could not testify, the testimony of the parties in divorce cases was always received. Poor v. Poor, 8 N. H. 307, 310, 314; Quincy v. Quincy, 10 N. H. 272, 274-277; Smith v. Smith, 12 N. H. 80, 81; Kimball v. Kimball, 13 N. H. 222, 224, 225; Masten v. Masten, 15 N. H. 159, 161; Corson v. Corson, 44 N. H. 587, 588; Melvin v. Melvin, 58 N. H. 569, 571. The necessity for the testimony of the parties in order to secure the administration of justice between them was no greater than in many commonlaw actions. It warranted the judicial abrogation of the established rules of evidence no more in one case than in the other. The testimony was received not merely because it was necessary, as in many cases it was not, but on the ground that the court was not bound under the statute by the strict rules of evidence. The anomaly is otherwise unaccountable. although at common law evidence in support of the credibility of a witness is not competent until his reputation for truthfulness is attacked, yet in divorce cases it has been the uniform practice of the court not only to admit, but in some cases to require, testimony that

So,

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

WHIDDEN v. CHEEVER. (Supreme Court of New Hampshire. Rockingham. July 30, 1897.)

HEALTH REGULATIONS-POLICE REGULATIONS -INFECTIOUS DISEASES SMALLPOX - REMOVAL QUARANTINE-SUBJECTING PROPERTY TO PUBLIC USE.

1. Under Pub. St. c. 110, § 2, providing that the health officers may remove any person infected with smallpox to the pest house, if it can be done without endangering the life of the patient, and authorizing them to make such regulations for permitting necessary communication with such persons or their attendants as they may think proper; and section 5, providing that if any person shall break out with smallpox, and the health officers shall judge that he may remain without endangering others than his own family, they may give license to persons who have been exposed to the danger of taking the disease to be inoculated, and to remain in the same house, subject to such regulations as they may impose,-a health officer is not liable in damages to the owner of a house for refusing to remove a tenant afflicted with smallpox, who lived in a part of his house, to the pest house, and in quarantining plaintiff therein. There being no imputation of bad faith, it would be assumed that, in the opinion of the health officer, the life of the patient would have been endangered by his removal.

2. The refusal of a health officer to remove a person afflicted with smallpox from part of a house occupied by the latter under a lease which entitled him to the possession, where the officer had authority to permit the patient to remain if, in his opinion, it would endanger the patient's life to remove him, though permitting the patient to remain necessitated the quarantining of people living in other parts of the house, is not a taking of the property of the latter for public use without compensation, but merely the exercise of a reasonable health regulation under the police power of the state.

Action by Samuel S. Whidden against Ben. jamin Cheever for using the plaintiff's dwelling house as a smallpox hospital, and confin

ing him to the premises against his will during the prevalence of the disease. Facts agreed. Case discharged.

Calvin Page, for plaintiff. Thomas E. O. Marvin and Frink & Marvin, for defendant.

CLARK, J. The plaintiff seeks to recover damages of the defendant, who was the physician member of the board of health of the city of Portsmouth, for using his dwelling house and buildings for smallpox patients, and for confining him to the premises against his will, and exposing him to contagion, from March 24 to May 14, 1894. The house was situated on the Lafayette road, in Portsmouth, about three miles from the city, and was occupied by one Wright under a lease; the plaintiff reserving certain rooms of the house for the separate use of himself and his sister. Members of Wright's family were afflicted with the smallpox. The defendant thereupon took charge of the sick persons and the buildings, established a quarantine, and posted notices upon the outside of the house forbidding any person to leave or enter it. The plaintiff, who was not ill, protested against his confinement to the buildings and the use made of his premises, and requested the defendant to remove the patients to a pest house. He was confined by the defendant until the quarantine was raised, and was then released. The question is whether, upon these facts, this action can be maintained.

If the defendant, as a health officer, acted within the limits of his authority, and in good faith, he is not liable for errors of judgment; but it is well settled that such an officer is liable for acts in excess of his authority. Spring v. Inhabitants of Hyde Park, 137 Mass. 554; Brown v. Murdock, 140 Mass. 314, 3 N. E. 208. The statute defining the powers and duties of health officers during the prevalence of the smallpox and other pestilential diseases provides that "the health officers may remove any person infected with the small-pox

** to some suitable house

provided by them for that purpose, if it can be done without endangering the life of the person; and they may make such regulations respecting such house and for preventing unnecessary communication with such persons or their attendants as they may think proper." Pub. St. c. 110, § 2. "If any person shall break out with the small-pox, and the health officers shall judge that he may remain without endangering others than his own family, they may give license to persons who have been exposed to the danger of taking the disease to be inoculated and to remain in the same house, subject to such regulations as they may impose." Id. § 5. Statutes enacted for the preservation of the public health are to receive a liberal construction. McIntire

v. Pembroke, 53 N. H. 462. The powers conferred upon local boards of health are quite extensive, when the public health or comfort demands it. The case does not show whether the lives of those sick with the smallpox would have been endangered by their removal to a pest house. Upon this question the decision of the health officers, acting in good faith, would have been final; and, as there is no imputation of bad faith, it may be assumed that, in the opinion of the health officers, the lives of the patients would have been endangered by their removal. The defendant did what he was authorized to do by the statute. He allowed the sick persons to remain in the house, and that was the extent of the possession exercised by him. In forbidding inmates of the house not afflicted with the smallpox to go abroad, and persons from abroad to enter, he conformed to the usual practice. Town of Farmington v. Jones, 36 N. H. 271; Wilkinson v. Albany, 28 N. H. 9. That part of the house where four persons lay sick with the smallpox, and one died, was held by the plaintiff's tenant under a lease, and the plaintiff would have no cause of action for a disturbance of the possession unless his interest was in some way affected. The defendant's possession of the house consisted in allowing the sick persons to remain there, and in prohibiting the inmates who were not sick from leaving, and others from entering; and this he had authority to do, under the statute. It does not appear that the defendant was ever in that part of the house reserved for the use of the plaintiff, or that he attempted to exercise any control over it, except to prohibit the plaintiff from going abroad and endangering the health of the community. This he was authorized to do, under the provisions of the statute, and as a reasonable police regulation for the protection of the public health. There was no taking of property for public use without compensation. It was merely the exercise of a reasonable health regulation under the police power of the state, within the limitations of the statute. Such regulations as are reasonably calculated to preserve the public health are valid, though they may abridge individual liberty and rights of property. 1 Dill. Mun. Corp. § 326. There is nothing in the case to show that the defendant did anything he was not authorized to do, or that he did not act in good faith, within the limits of his statutory duty, as he understood it. Notwithstanding the plaintiff suffered by reason of his exclusion from association with the community during the prevalence of the disease to which he was exposed, the defendant is not liable to him in damages. There is nothing in the case which shows that the defendant did not act in good faith, and within the limits of his statutory duty. Case discharged. All concurred.