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satisfy the claims of bondholders, and the after the claims of those who helped to cre amount realized from unpledged assets is ate it have been satisfied. The minor preminsufficient to satisfy the claims of unsecured ise is that there is a presumption the Legiscreditors.

lature intends to do what natural justice reEdwin G. Eastman, Atty. Gen., for peti- quires should be done. Hence they say that, tioners. George B. French, for trustees and since these depositors did not help create the others. Taggart, Tuttle, Burroughs & Wy. general assets, there is a presumption the man, for Walter M. Parker and others.

Legislature did not intend they should share in their distribution; for to permit them to

do so would not be in accordance with the YOUNG, J. 1. The relation between the dictates of "natural justice.” There are sevdifferent classes of claimants of the funds eral answers to this contention. One is this: in the hands of the assignee and the trust The minor premise overlooks the fact that company is that of debtor and creditor. “natural justice” requires that not only those Bank Commissioner v. Banking Co., 74 N. H. who help create a fund, but also those for 292, 67 Atl. 583. Therefore the depositors in whose benefit it is created, should share in the company's savings department, as well

its distribution. as the holders of debenture bonds, are en

All corporations which entitled to share with the unsecured creditors gage in the banking business have a paid-up

capital. One purpose of this capital is to in the distribution of the unpledged assets as to so much of their claims as are not satis- all those who have dealings with such com

create a fund available to pay the claims of fied by the application of the special funds created for their benefit. Bank Commission- panies. In other words, one purpose of the ers v. Trust Co., 70 N. H. 536, 539, 49 Atl. paid-up capital of such an institution is to 113. The defendants, however, contend that create a fund in the nature of collateral sethe rule which permits secured creditors curity, and this fund is for the benefit of all whose security is insufficient to pay their the creditors of such an institution—not for claims in full to share with the general cred- the benefit of a particular class. According

the itors as to the balance of their claims has no

w of the general creditors, however, application in this case in so far as these their claims must be paid in full out of this depositors are concerned, because, as they fund before any of it is available to pay the say, when the Legislature enacted section 18, claims of depositors in the savings departC. 165, Pub. St. 1901, it made two distinct ment of such an institution. Another fatal institutions of every trust company engaged objection to this contention is that the propin the savings bank business-a savings bank osition on which it rests is not in accordance and a trust company-and the rights of the with the fact. The profits of the savings decreditors of one of these institutions to share partment of such an institution go into and in the assets of the other is similar to the become a part of the general assets just as right of preferred shareholders to participate much as the profits of the general banking in the distribution of the corporate assets. business. Consequently, since “natural jusIf this was the legislative purpose, it follows tice” requires that those who help create a that, when a trust company sets apart se fund and those for whose benefit it is created curities having an estimated value about should share in its distribution, the Legis. equal to the amount due the depositors in lature must have intended that the deposithe savings department, all the rest of the tors in the savings department of a trust company's assets, including not only the cap- company should share in the distribution of ital stock and the profits from the general the general assets in the same way and to banking business, but also the profits from the same extent as the company's other credthe savings department, constitute a fund itors. Although in this case, as in the case for the special benefit of the general creditors. of all other insolvent concerns, the losses It is clear that this is so; for under such a more than equal the capital paid in by the construction of the section the depositors in shareholders, it is not fair to any particular the savings department of such an institu- class of creditors to say that as to that class tion are not permitted to share in the dis- it is the capital stock which is lost, however tribution of the general assets until after the it may be as between the creditors and the claims of general creditors are satisfied. In shareholders. Bank Commissioners v. Bankother words, if the contention is sound, the ing Co., 74 N. H. 292, 67 Atl. 583. As has section was enacted for the special benefit of been seen, the capital stock is in the nature general creditors of such institutions. of collateral security, and is for the benefit

The major premise upon which the defend- of all the creditors of the company. Conse. ants rest their contention that such is the quently, when it comes to the distribution of proper construction of the section above cited the assets of such a corporation among its is the proposition that the depositors in the creditors, the capital stock is treated as an savings department of such an institution do existing fund, in so far as the unpledged asnot contribute anything toward the general sets are sufficient for that purpose. When assets; and that "natural justice” requires the Legislature enacted section 18, c. 165, that those who do not contribute to a fund Pub. St. 1901, it did not intend to make two

seems

as were engaged in the savings bank busi-, tions for a nonsuit and the direction of a ness, but did intend to create funds for the verdict in their favor. Exceptions overruled. special benefit of the depositors in their sav.

The evidence tended to prove that the ings departments. That this is SO perfectly clear from an examination of the and of 'no experience with machinery, was

plaintiff, a boy 12 years old, small of his age, legislation in respect to savings banks. Pub. taken by one of the defendants from the St. 1901, c. 165; Laws 1893, p. c. 52; work he had been doing, and put at work Laws 1895, pp. 449, 464, 474, cc. 92; 105, 114; taking panels away from a sanding machine. Laws 1899, pp. 312, 314, cc. 72, 74; Laws Rolfe said to Worthley (the man in charge 1901, p. 616, c. 114; Laws 1905, p. 419, c. 32. of the sander), “Here is a boy for you to Such an examination discloses a legislative work on the sander, look out for him," showpurpose to protect such depositors, even at ed the boy how to take panels away, and the expense of the general creditors of such then left. The panels came through scratchinstitutions. Since this is so, there is a pre ed, and Worthley stopped the machine. to sumption that section 18, c. 165, Pub. St. clean the front top roll. The plaintiff sup1901, was enacted to protect them; and, as there is nothing to rebut the presumption, it posed he must do the same, and got upon must be held that that was the purpose for

the machine and cleaned the rear roll. The which it was enacted. Consequently the se and Worthley began work on bis top roll

panels continued to come through scratched, curities set apart under the provisions of the

The section should be treated just as they would while the machine was in motion. be if the company had deposited them with plaintiff again supposed it was his duty to a trustee to secure the payment of the claims follow his superior’s example, and while he of these depositors.

was attempting to clean the rear roll his 2. It is the general rule that the expense inder, which was located just below the roll.

hand was caught by the revolving sand cylIncident to administering a special fund is a charge upon it. There is nothing to show Up to the time of the accident he had never that the Legislature intended a different rule seen a sandpaper cylinder, and did not know should apply in the case of funds created by that there was any danger in doing the work banks for the special benefit of a class of as he attempted to do it. their creditors. Since this is so, the securi- Mitchell, Foster & Lake and Martin & ties set apart for the benefit of the depositors Howe, for plaintiff. Streeter & Hollis, for In the savings department of the trust com- defendants. pany must bear the expense incident to administering them, and the same is true of

PEASLEE, J. The case is not distinguishthose deposited with the trustees for the able in principle from Bennett v. Warren, 70 benefit of the holders of debenture bonds.

N. H. 564, 49 Atl. 105. The plaintiff was Case discharged.

inexperienced, did not know of the concealed

danger, and was in the performance of what BINGHAM, J., did not sit. The others con

he reasonably thought to be a part of his curred

duty. It might well be found that it was negligence to set a child at this work with

out any instruction or warning. The motions (75 N. H. 586)

for a nonsuit, and that a verdict be directed DRISCOLL V. ROLFE et al.

for the defendants, were properly denied. (Supreme Court of New Hampshire. Merri- Exceptions overruled. All concurred.

mack. Nov. 4, 1908.) MASTER AND SERVANT ($ 278*)-INJURIES TO

(75 N. H. 116) SERVANT-FAILURE TO WARN AND INSTRUCT KEEFD V. SULLIVAN COUNTY R. R. -NEGLIGENCE-SUFFICIENCY OF EVIDENCE.

Plaintiff, an inexperienced employé, 12 (Supreme Court of New Hampshire. Cheshire. years old, was placed at work, without warning

Nov. 4, 1908 or instruction, on a sanding machine, and while 1. Evidence ($ 244*) - ADMISSIONS - CORPOattempting, in the performance of what he rea- RATE AGENTS. sonably thought to be his duty, to clean a roll Declarations of a person, made when act. while the machine was in motion was injured ing as foreman in charge of the track and by his hand being caught in a cylinder. Held, fences of a railroad company, as to the location that a finding of negligence on defendants' part of the boundary of the right of way, are inad. was justified.

missible as admissions binding on the company. (Ed. Note.-For other cases, see Master and [Ed. Note.-For other cases, see Evidence, Servant, Dec. Dig. $ 278.*]

Cent. Dig. 88 916–936; Dec. Dig. § 244.*] Exceptions from Superior Court, Merri. 2. EVIDENCE ($ 274*) — HEARSAY EVIDENCE

DECLARATIONS-ADMISSIBILITY. mack County.

Declarations of a deceased person, having Case for negligence by David F. Driscoll | the means of knowledge, without interest to misagainst C. M. & A. W. Rolfe. There was a represent, are competent on the question of the

boundary of land, whether such person was at verdict for plaintiff, and the case was trans

the time the owner of the land. ferred from the superior court, on defend

[Ed. Note.-For other cases, see Evidence, ant's exceptions to the denial of their mo- I Cent. Dig. $8 1129–1134; Dec. Dig. $ 274.* ]

ABLE.

BILITY,

3. EVIDENCE (8 309*)–PROOT – PRELIMINARY 10. EVIDENCE (8 505) OPINION EVIDENCE EVIDENCE-DECLARATIONS.

ADMISSIBILITY. The fact that a person, since deceased, who Where an expert had made a survey for made declarations as to the boundary of land, the purpose of ascertaining the location of a had means of knowledge essential to render the disputed boundary, and in testifying he stated declarations admissible, may be shown by other the data made use of in his survey, and the evidence than his ownership of the land at the work done in pursuance thereof, and the survey time the declarations were made.

shows the location of the boundary on the [Ed. Note.- For other cases, see Evidence, ground,

his opinion as to the location of the Dec. Dig. 309.*]

boundary is inadmissible.

(Ed. Note.-For other cases, see Evidence, 4. EVIDENCE (8274*)-HEARSAY EVIDENCE-Dec. Dig. $ 505.*] DECLARATIONS-ADMISSIBILITY. The declarations of a deceased person made 11. APPEAL AND ERROR (8 842*)_REVIEW

OPINION EVIDENCE when acting as foreman in charge of the track

QUESTIONS REVIEW. and fences of a railroad company, while on the premises, as to the boundary of the right of which an expert may express an opinion is a

Whether a given subject is one concerning way, are competent on the issue of the boundary on the theory that he knew where the bound question of law.

[Ed. Note.-For other cases, see Appeal and ary was.

Error, Dec. Dig. 8 842.*] [Ed. Note. For other cases, see Evidence, Cent. 88 1129-1134; Dec. Dig. $ 274.*] 12. EVIDENCE (8 546*)-OPINION EVIDENCE

EXPERT TESTIMONY. 5. EVIDENCE ( 274*) — HEARSAY EVIDENCE – What qualifications are necessary to en. DECLARATIONS-ADMISSIBILITY.

title a witness to testify as an expert is a quesDeclarations of a deceased person, made tion of law, but the question, whether a witness when acting as foreman in charge of the track has such qualifications is a question of fact. and fences of a railroad company as to the (Ed. Note.-For other cases, see Evidence, boundary of the right of way, are not inadmis: Cent. Dig. 2363; Dec. Dig. $ 546.* ] sible because made while such person was off the premises, and the boundary was not pointed 13. EVIDENCE (8 174*)—BEST AND SECONDARY out.

EVIDENCE. [Ed. Note.- For other cases, see Evidence, a survey to establish a boundary is inadmissible

A copy of a plan embodying the results of Cent. Dig. $8 1129–1134; Dec. Dig. $ 274.*] withouť showing that the original could not be 6. EVIDENCE (274*) - HEARSAY EVIDENCE - produced. DECLARATIONS-ADMISSIBILITY.

[Ed. Note.-For other cases, see Evidence, Declarations of a deceased person as to the Cent. Dig. $8 561, 369; Dec. Dig. & 174.*] boundary of land are not 'inadmissible on the 14. BOUNDARIES (8 35*)- EVIDENCE-ADMISSI• issue of boundary because he, at the time the declarations were made, owned adjacent land,

The testimony of a witness that he set out the objection of interest going only to the weight an elm tree a specified number of feet from of the declarations.

fence posts on a line is admissible to show the (Ed. Note.-For other cases, see Evidence, location of such fence. Cent. Dig. $8 1129–1134; Dec. Dig. & 274.*] [Ed. Note.-For other cases, see Boundaries, 7. BOUNDARIES (8 35*)—EVIDENCE.

Dec. Dig. $ 35.*] Where, on the issue of the boundary of a Transferred from Superior Court, Cheshire railroad right of way it did not appear that stone bounds, alleged to have been set along a

County; Chamberlin, Judge. center line of the right of way, were set along a Writ of entry to recover land by James line as surveyed, or that the line, as surveyed, Keefe against the Sullivan County Railroad. was the center line of the right of way, and it There was a verdict for defendant, and the was not shown that the track was so constructed that its center line coincided with the center

was transferred from the superior line of the right of way, the evidence as to the court. Exceptions sustained, and verdict set setting of stone bounds was immaterial.

aside. [Ed. Note.-For other cases, see Boundaries, Dec. Dig. § 35.*]

Joseph Madden, Leonard J. Wellington,

and Davis & Davis, for plaintiff. Jobn E. 8. EvideNCE (8 505*)-OPINION EVIDENCE.

The location of the boundary of a railroad Allen and Albin & Sawyer, for defendant right of way and the place where a curve in the original lay-out of the main line began are BINGHAM, J. The plaintiff and the de not subjects concerning which an expert may fendants are adjoining owners of land. The give his opinion, and an engineer, though possessing expert knowledge and knowledge of data location of the easterly line of the plaintiff's furnished, is not competent to give his opinion, lot and the westerly line of the defendants' but the data and details of a survey are suffi- right of way is in dispute. The plaintifr cient to enable the jury to determine the ques-claims it is located some four to six feet tion.

(Ed. Note:--For other cases, see Evidence, east of the line where the defendants built Dec. Dig. § 505.*]

a high fence in 1904, and the defendants 9. EVIDENCE (8 470*)-OPINION EVIDENCE

claim that the high fence is on the true line. ADMISSIBILITY.

The right of way was surveyed and laid out When it is supposable that jurors can form in 1847. Its westerly line as then surveyed a correct judgment without the aid of the opin: is the plaintiff's true east line. There was ion of others from facts stated, the opinions of evidence that in 1870 the defendants built a others are not as a general rule admissible in evidence.

fence some six feet east of the one which (Ed. Note.--For other cases, see Evidence, they erected in 1904; that they were main. Dec. Dig. & 470.*]

taining it at that place when the plaintiff

cause

purchased his lot in 1882; that they con- | missions, the plaintiff does not how contend tinued to do so down to 1888, when they but that they were properly excluded, and double tracked their road, and put in a side such is undoubtedly the law. Clough v. Comtrack and two switches opposite the plain- pany, 75 N. H. — 71 Atl. 223. But, as tiff's property; and that it was then broken declarations of deceased persons, he contends down or buried in the process of raising the that both were admissible; that proof of tracks and widening the roadbed. In 1874 ownership of land by the declarant is maone Torpey was foreman in charge of the terial only as bearing upon the question fences and tracks on the section which pass- whether the person making the declaration es the plaintiff's land. He was then about presumably knew the location of the bound60 years of age, and had been foreman for ary in regard to which he undertook to some 5 years. At this time he owned the speak and which was material to the issue; premises now owned by the plaintiff, and in that such proof is but a species of evidence the presence of one Wessul, a witness for bearing upon the question of knowledge, the the plaintiff, stated that the fence (meaning want of which may be supplied by other evithe one put up in 1870) was the west line of dence of equal weight; that as to Torpey the right of way. At the time of the trial the defendants' counsel admitted at the trial Torpey was dead, and the plaintiff offered that he was the owner of the land now ownhis declaration in evidence as that of a per- ed by the plaintiff, from which it would folson who was familiar with things pertain- low that he presumably knew its bounds, ining to the defendants' property and likely to dependently of the proof that he was the know where the boundary line was, and as person in charge of the defendants' roadbed an admission; but upon the suggestion of and fences; and that, as to Powers, proof the defendants' counsel that the statement of ownership was unnecessary, it appearing concerned the declarant's own land, and that that he had for many years had charge as the Central Vermont Railroad was then oper- foreman of the defendants' roadbed and fenating the defendants' road as lessee, the ces on their right of way past the plaintiff's court excluded the testimony until it should premises, and therefore presumably knew its be shown that the party making the declara- bounds. tion had authority to make it. It also ap- In Adams v. Stanyan, 24 N. H. 405, 417, peared that for a series of years just before the law upon this question is stated as foland after the plaintiff purchased his land lows: “The declarations of deceased perone Powers was foreman in charge of the sons who were so situated as to have the fences and roadbed on this section, and at means of knowledge, and had no interest to the time of trial was dead; and the plain- misrepresent, are competent evidence upon a tiff offered to show that before he purchased question of boundary, whether the same perbis land Powers, when upon the premises of tains to public tracts or private rights." It the defendants, pointed out to him the fence is true that in this case the declarant was erected in 1870 as the west line of the right the owner of land, and that the location of of way. This evidence was offered upon the one of its bounds was material evidence upon ground that the declaration was that of a the question of the location of the line beperson having knowledge of the boundary tween the parties to the suit; but it is apmade while upon the property and in charge parent that the court regarded the fact of of it. It was excluded, and the defendant ownership merely as evidence disclosing that excepted.

the declarant was “so situated as to have the The defendants now contend that the evi- means of knowledge.” The same view is dence above referred to was properly ex- presented in Lawrence v. Tennant, 64 N. E. cluded, and for the following reasons: (1) 532, 541, 15 Atl. 543, 546, where Judge BlodBecause the declarations were offered solely gett says: “The interests of F. Sanborn and as admissions, and could not be received as B. M. Towle, as the respective owners of such for the reason that neither Torpey nor adjacent lots, the common boundary of which Powers was shown to be an agent of the was unquestioned, showed a strong probabildefendants, and, if they were, that it did ity that they had knowledge of that boundnot appear they possessed authority to bind ary." And in Lane v. Hill, 68 N. H. 275, 44 the defendants; (2) because neither of them Atl. 393, 73 Am. St. Rep. 591, it was held that was shown to be an owner of land as to the the declarations of a testator as to the conboundaries of which their declarations re- tents of a lost will were admissible to prove lated and were material evidence that the its contents, clearly recognizing that proof of declarations of deceased owners only were probable knowledge on the part of a declaradmissible. But the first position, that the ant may be satisfied by other evidence than declarations were offered solely ‘as admis- the ownership of land. Judge Parsons there sions, cannot be sustained. It clearly ap- says (page 281 of 68 N. H., page 396 of 44 pears that the offers were made upon two Atl. [73 Am. St. Rep. 591]): "The objection distinct grounds: (1) As declarations of de to the evidence is that it is hearsay, not ceased persons who presumably knew where open to cross-examination, and not given unthe division line between the plaintiff's and der the sanction of an oath. The declaradefendants' property was; and (2) as admis- tion, however, is that of a person now deout interest to misrepresent, and is the best witness also testified that the center line of evidence of which the case is capable. Betts the new bridge is on the center line of the V. Jackson, 6 Wend. (N. Y.) 173. It is diffi- old one, and that the center line of the cult to see on what ground the reason of the bridge is the center line of the track, exadmission of the evidence of declarations of cept for a distance at the south end of the deceased persons in cases of disputed bound-bridge, which is on a curve. The materialary, which is put upon the ground that it is ity of this evidence is not apparent, and, unthe best evidence of which the case is ca- less supplemented by other evidence, it pable, does not apply to cases like the pres- would seem that its only effect must have ent. Lawrence v. Tennant, 64 N. H. 532, 15 been to mislead and confuse the jury. It Atl. 543; Nutter v. Tucker, 67 N. H. 185, does not appear that the stone bounds were 30 Atl. 352, 68 Am. St. Rep. 647. To admit set along the line which the witness surveythe declaration of a deceased person in one ed, or, if they were, that the line he survey. class of cases because it is the best evidence ed was the center line of the defendants' of which the case is capable, permitting the right of way on the branch laid out in 1819, jury to judge of the interest of the declarant or of the right of way on the main line as as bearing upon the weight of his testimony laid out in 1847; and, while the tracks may (Lawrence v. Tennant, supra), and to ex- have been so constructed that their center clude the declaration of the deceased person lines coincided with the center lines of the in this case, would be to establish a particu- rights of way, the fact whether they were so lar rule of evidence for a special class of constructed past the plaintiff's premises de cases, for which no good reason can be giv- pends upon proof, of which, so far as this en.” To the same effect, see Smith v. Pow. case discloses, there was none. ers, 15 N. H. 546, 563; Lawrence v. Haynes, There was a curve in the original lay-out 5 N. H. 33, 20 Am. Dec. 554; 2 Wig. Ev. $ of the main line, known in the case as the 1563; 1 Gr. Ev. § 140a. The declaration of “2.30 curve,” and one of the questions in Torpey was not rendered inadmissible be- dispute was as to where it commenced. The cause it was made off the land and the plaintiff's evidence was that prior to the boundary referred to was not pointed out time he bought his land, and, when the road (Lawrence v. Tennant, 64 N. H. 542, 15 Atl. had but a single track, the curve began some 543; Smith v. Forrest, 49 N. H. 220, 237), distance south of the southeast corner of his nor on the ground of interest because he was land and at Elm street, and that later, when a former owner of the plaintiff's land. The the double track was put in, it was changed, objection of interest goes to the weight of and began further north and opposite the the evidence, and not to its competency. southeast corner. Upon this question the de Nutter v. Tucker, 67 N. H. 185, 30 Atl. 352, fendants called certain witnesses, who qual68 Am. St. Rep. 647; Wood v. Fiske, 62 N ified as civil engineers, and were allowed H. 173; South Hampton v. Fowler, 54 N. H. to testify, subject to the plaintiff's exception, 197, 200.

where in their judgment the point of curvaIn 1847 a line of road known as the "Bel- ture commenced, and also whether in their lows Falls Branch," connecting with the main judgment the fence erected in 1904 was upline of the defendants' road several hundred on the true line between the plaintiff's land feet south of the plaintiff's premises and ex- and the defendants' right of way. This was tending southwesterly across the Connecticut error. The location of the true line between river to Bellows Falls, Vt., was constructed. the parties and the place where the curvaIn 1881 stone bounds were set along the road ture began were not subjects in regard to on lines claimed by the defendants to be the which the opinions of engineers could be givcenter lines of the rights of way as surveyed en in evidence. Although an engineer's and laid out in 1847 and 1849. They were knowledge gained from study and experience set 1,000 feet apart, beginning with the in his profession, taken in connection with branch line at the northeasterly end of the the data furnished by the plan of 1817, would bridge over the Connecticut river, thence in aid him in making a resurvey of the dea northerly direction along that line to the fendants' right of way and in ascertaining main line, and thence on the main line sev- the location of its west boundary, nevertheeral miles north of the plaintiff's premises. less it is difficult to see why a jury may not In support of their contention, and subject be capable of judging whether the bound to the plaintiff's exception, the defendants thus located is the true bound without the called one Clark, who worked for them as a aid of the opinion of the engineer upon the civil engineer in 1881 on these lines; and in question, the data, and details of the resurreply to the question, “Did you set bounds- vey having been laid before them. And what did you do with reference to setting what is true of the location of the west bounds along the line of the Sullivan Coun- boundary is true of the point of the comty Railroad?” he answered: “I made a sur- mencement of the curve. vey from what is now the iron bridge, along In Leighton v. Sargent, 31 N. H. 119, 133, the track through what they call 'Chapin's 64 Am. Dec. 323, it is said: “When it is switch,' along up by Dutchman's crossing, supposable that jurors can form a correct following the track up to Charlestown and judgment or opinion without the aid of the

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