satisfy the claims of bondholders, and the amount realized from unpledged assets is insufficient to satisfy the claims of unsecured creditors. after the claims of those who helped to create it have been satisfied. The minor premise is that there is a presumption the Legislature intends to do what natural justice requires should be done. Hence they say that, since these depositors did not help create the Edwin G. Eastman, Atty. Gen., for petitioners. George B. French, for trustees and others. Taggart, Tuttle, Burroughs & Wy-general assets, there is a presumption the man, for Walter M. Parker and others. curity, and this fund is for the benefit of all the creditors of such an institution-not for 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. All corporations which enas the holders of debenture bonds, are 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- create a fund available to pay the claims of fied by the application of the special funds all those who have dealings with such comcreated 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 whose security is insufficient to pay their claims in full to share with the general creditors as to the balance of their claims has no application in this case in so far as these depositors are concerned, because, as they say, when the Legislature enacted section 18, c. 165, Pub. St. 1901, it made two distinct institutions of every trust company engaged in the savings bank business-a savings bank and a trust company-and the rights of the creditors of one of these institutions to share in the assets of the other is similar to the right of preferred shareholders to participate in the distribution of the corporate assets. If this was the legislative purpose, it follows that, when a trust company sets apart securities having an estimated value about equal to the amount due the depositors in the savings department, all the rest of the company's assets, including not only the capital stock and the profits from the general banking business, but also the profits from the savings department, constitute a fund for the special benefit of the general creditors. It is clear that this is so; for under such a construction of the section the depositors in the savings department of such an institution are not permitted to share in the distribution of the general assets until after the claims of general creditors are satisfied. In shareholders. Bank Commissioners v. Bankother words, if the contention is sound, the section was enacted for the special benefit of general creditors of such institutions. the benefit of a particular class. According to the view of the general creditors, however, their claims must be paid in full out of this fund before any of it is available to pay the claims of depositors in the savings department of such an institution. Another fatal objection to this contention is that the proposition on which it rests is not in accordance with the fact. The profits of the savings department of such an institution go into and become a part of the general assets just as much as the profits of the general banking business. Consequently, since "natural justice" requires that those who help create a fund and those for whose benefit it is created should share in its distribution, the Legislature must have intended that the depositors in the savings department of a trust company should share in the distribution of the general assets in the same way and to the same extent as the company's other creditors. Although in this case, as in the case of all other insolvent concerns, the losses more than equal the capital paid in by the shareholders, it is not fair to any particular class of creditors to say that as to that class it is the capital stock which is lost, however it may be as between the creditors and the ing Co., 74 N. H. 292, 67 Atl. 583. As has been seen, the capital stock is in the nature of collateral security, and is for the benefit The major premise upon which the defend- of all the creditors of the company. Conseants 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 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 savThe evidence tended to prove that the ings departments. That this is so seems plaintiff, a boy 12 years old, small of his age, perfectly clear from an examination of the and of no experience with machinery, was legislation in respect to savings banks. Pub. taken by one of the defendants from the St. 1901, c. 165; Laws 1893, p. 42, 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 panels continued to come through scratched, which it was enacted. Consequently the securities set apart under the provisions of the and Worthley began work on his top roll section should be treated just as they would be if the company had deposited them with a trustee to secure the payment of the claims of these depositors. 2. It is the general rule that the expense Incident to administering a special fund is a charge upon it. There is nothing to show that the Legislature intended a different rule should apply in the case of funds created by banks for the special benefit of a class of their creditors. Since this is so, the securities set apart for the benefit of the depositors in the savings department of the trust company must bear the expense incident to administering them, and the same is true of those deposited with the trustees for the benefit of the holders of debenture bonds. Case discharged. MASTER AND SERVANT (§ 278*)-INJURIES TO Plaintiff, an inexperienced employé, 12 years old, was placed at work, without warning or instruction, on a sanding machine, and while attempting, in the performance of what he reasonably thought to be his duty, to clean a roll while the machine was in motion was injured by his hand being caught in a cylinder. Held, that a finding of negligence on defendants' part was justified. [Ed. Note.-For other cases, see Master and Servant, Dec. Dig. § 278.*] while the machine was in motion. The plaintiff again supposed it was his duty to follow his superior's example, and while he was attempting to clean the rear roll his hand was caught by the revolving sand cylinder, which was located just below the roll. Up to the time of the accident he had never seen a sandpaper cylinder, and did not know that there was any danger in doing the work as he attempted to do it. Mitchell, Foster & Lake and Martin & Howe, for plaintiff. Streeter & Hollis, for defendants. PEASLEE, J. The case is not distinguishable in principle from Bennett v. Warren, 70 N. H. 564, 49 Atl. 105. The plaintiff was inexperienced, did not know of the concealed danger, and was in the performance of what he reasonably thought to be a part of his duty. It might well be found that it was negligence to set a child at this work without any instruction or warning. The motions for a nonsuit, and that a verdict be directed for the defendants, were properly denied. Exceptions overruled. All concurred. (75 N. H. 116) KEEFE v. SULLIVAN COUNTY R. R. (Supreme Court of New Hampshire. Cheshire. Nov. 4, 1908.) 1. EVIDENCE (§ 244*) — ADMISSIONS - CORPOBATE AGENTS. Declarations of a person, made when acting as foreman in charge of the track and fences of a railroad company, as to the location of the boundary of the right of way, are inadmissible as admissions binding on the company. [Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 916-936; Dec. Dig. § 244.*] Exceptions from Superior Court, Merri- 2. EVIDENCE (§ 274*) — HEARSAY EVIDENCEmack County. DECLARATIONS-ADMISSIBILITY. Declarations of a deceased person, having Case for negligence by David F. Driscoll the means of knowledge, without interest to misrepresent, are competent on the question of the against C. M. & A. W. Rolfe. There was a verdict for plaintiff, and the case was trans-boundary of land, whether such person was at ferred from the superior court, on defendant's exceptions to the denial of their mo the time the owner of the land. [Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 1129-1134; Dec. Dig. § 274.*] 3. EVIDENCE (8 309*)-PROOF - PRELIMINARY | 10. EVIDENCE (8 505*)-OPINION EVIDENCEEVIDENCE-DECLARATIONS. ADMISSIBILITY. The fact that a person, since deceased, who made declarations as to the boundary of land, had means of knowledge essential to render the declarations admissible, may be shown by other evidence than his ownership of the land at the time the declarations were made. [Ed. Note. For other cases, see Evidence, Dec. Dig. 309.*] 4. EVIDENCE (§ 274*)-HEARSAY EVIDENCEDECLARATIONS-ADMISSIBILITY. The declarations of a deceased person made when acting as foreman in charge of the track and fences of a railroad company, while on the premises, as to the boundary of the right of way, are competent on the issue of the boundary on the theory that he knew where the boundary was. [Ed. Note. For other cases, see Evidence, Cent. Dig. § 1129-1134; Dec. Dig. § 274.*] 6. EVIDENCE (§ 274*) — Hearsay EVIDENCE · DECLARATIONS-ADMISSIBILITY. Declarations of a deceased person as to the boundary of land are not 'inadmissible on the issue of boundary because he, at the time the declarations were made, owned adjacent land, the objection of interest going only to the weight of the declarations. [Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 1129-1134; Dec. Dig. § 274.*] 7. BOUNDARIES (§ 35*)-EVIDENCE. Where, on the issue of the boundary of a railroad right of way it did not appear that stone bounds, alleged to have been set along a center line of the right of way, were set along a line as surveyed, or that the line, as surveyed, was the center line of the right of way, and it was not shown that the track was so constructed that its center line coincided with the center line of the right of way, the evidence as to the setting of stone bounds was immaterial. [Ed. Note.-For other cases, see Boundaries, Dec. Dig. 35.*] 8. EVIDENCE (8 505*)-OPINION EVIDENCE. tion. Where an expert had made a survey for the purpose of ascertaining the location of a disputed boundary, and in testifying he stated the data made use of in his survey, and the work done in pursuance thereof, and the survey shows the location of the boundary on the ground, his opinion as to the location of the boundary is inadmissible. [Ed. Note. For other cases, see Evidence, Dec. Dig. § 505.*] 11. APPEAL AND ERROR (§ 842*)-REVIEWQUESTIONS REVIEW. OPINION EVIDENCE ABLE. - Whether a given subject is one concerning which an expert may express an opinion is a question of law. [Ed. Note.-For other cases, see Appeal and Error, Dec. Dig. § 842.*] 12. EVIDENCE (§ 546*)-OPINION EVIDENCEEXPERT TESTIMONY. What qualifications are necessary to entitle a witness to testify as an expert is a question of law, but the question whether a witness has such qualifications is a question of fact. [Ed. Note. For other cases, see Evidence, Cent. Dig. § 2363; Dec. Dig. § 546.*] 13. EVIDENCE (§ 174*)—BEst and SeconDARY EVIDENCE. A copy of a plan embodying the results of without showing that the original could not be a survey to establish a boundary is inadmissible produced. [Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 561, 569; Dec. Dig. § 174.*] 14. BOUNDAries (§ 35*)—EVIDENCE-ADMISSI• BILITY. The testimony of a witness that he set out an elm tree a specified number of feet from fence posts on a line is admissible to show the location of such fence. [Ed. Note. For other cases, see Boundaries, Dec. Dig. § 35.*] Transferred from Superior Court, Cheshire County; Chamberlin, Judge. Writ of entry to recover land by James Keefe against the Sullivan County Railroad. There was a verdict for defendant, and the was transferred from the superior court. Exceptions sustained, and verdict set aside. cause Joseph Madden, Leonard J. Wellington, and Davis & Davis, for plaintiff. John E. Allen and Albin & Sawyer, for defendant. BINGHAM, J. The plaintiff and the de fendants are adjoining owners of land. The location of the easterly line of the plaintiff's lot and the westerly line of the defendants' right of way is in dispute. The plaintiff The location of the boundary of a railroad right of way and the place where a curve in the original lay-out of the main line began are not subjects concerning which an expert may give his opinion, and an engineer, though possessing expert knowledge and knowledge of data furnished, is not competent to give his opinion, but the data and details of a survey are sufficient to enable the jury to determine the ques-claims it is located some four to six feet [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 claim that the high fence is on the true line. The right of way was surveyed and laid out in 1847. Its westerly line as then surveyed is the plaintiff's true east line. There was evidence that in 1870 the defendants built a fence some six feet east of the one which 9. EVIDENCE (8 470*)-OPINION EVIDENCE ADMISSIBILITY. When it is supposable that jurors can form a correct judgment without the aid of the opinion of others from facts stated, the opinions of others are not as a general rule admissible in evidence. [Ed. Note.-For other cases, see Evidence, Dec. Dig. § 470.*] they erected in 1904; that they were maintaining it at that place when the plaintiff purchased his lot in 1882; that they con- missions, the plaintiff does not now 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 appeared that for a series of years just before and after the plaintiff purchased his land one Powers was foreman in charge of the fences and roadbed on this section, and at the time of trial was dead; and the plaintiff offered to show that before he purchased his land Powers, when upon the premises of the defendants, pointed out to him the fence erected in 1870 as the west line of the right of way. This evidence was offered upon the ground that the declaration was that of a person having knowledge of the boundary made while upon the property and in charge of it. It was excluded, and the defendant excepted. The defendants now contend that the evidence above referred to was properly excluded, and for the following reasons: (1) Because the declarations were offered solely as admissions, and could not be received as such for the reason that neither Torpey nor Powers was shown to be an agent of the defendants, and, if they were, that it did not appear they possessed authority to bind the defendants; (2) because neither of them was shown to be an owner of land as to the boundaries of which their declarations related and were material evidence that the declarations of deceased owners only were admissible. But the first position, that the declarations were offered solely as admissions, cannot be sustained. It clearly appears that the offers were made upon two distinct grounds: (1) As declarations of deceased persons who presumably knew where the division line between the plaintiff's and defendants' property was; and (2) as admis In Adams v. Stanyan, 24 N. H. 405, 417, the law upon this question is stated as follows: "The declarations of deceased persons who were so situated as to have the means of knowledge, and had no interest to misrepresent, are competent evidence upon a question of boundary, whether the same pertains to public tracts or private rights." It is true that in this case the declarant was the owner of land, and that the location of one of its bounds was material evidence upon the question of the location of the line between the parties to the suit; but it is apparent that the court regarded the fact of ownership merely as evidence disclosing that the declarant was "so situated as to have the means of knowledge." The same view is presented in Lawrence v. Tennant, 64 N. H. 532, 541, 15 Atl. 543, 546, where Judge Blodgett says: "The interests of F. Sanborn and B. M. Towle, as the respective owners of adjacent lots, the common boundary of which was unquestioned, showed a strong probability that they had knowledge of that boundary." And in Lane v. Hill, 68 N. H. 275, 44 Atl. 393, 73 Am. St. Rep. 591, it was held that the declarations of a testator as to the contents of a lost will were admissible to prove its contents, clearly recognizing that proof of probable knowledge on the part of a declarant may be satisfied by other evidence than the ownership of land. Judge Parsons there says (page 281 of 68 N. H., page 396 of 44 Atl. [73 Am. St. Rep. 591]): "The objection to the evidence is that it is hearsay, not open to cross-examination, and not given under the sanction of an oath. The declaration, however, is that of a person now de old one, and that the center line of the bridge is the center line of the track, except for a distance at the south end of the bridge, which is on a curve. The materiality of this evidence is not apparent, and, unless supplemented by other evidence, it would seem that its only effect must have been to mislead and confuse the jury. It does not appear that the stone bounds were set along the line which the witness surveyed, or, if they were, that the line he surveyed was the center line of the defendants' right of way on the branch laid out in 1849, or of the right of way on the main line as laid out in 1847; and, while the tracks may have been so constructed that their center lines coincided with the center lines of the rights of way, the fact whether they were so constructed past the plaintiff's premises depends upon proof, of which, so far as this case discloses, there was none. out 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 difficult to see on what ground the reason of the admission of the evidence of declarations of deceased persons in cases of disputed boundary, which is put upon the ground that it is the best evidence of which the case is capable, does not apply to cases like the present. Lawrence v. Tennant, 64 N. H. 532, 15 Atl. 543; Nutter v. Tucker, 67 N. H. 185, 30 Atl. 352, 68 Am. St. Rep. 647. To admit the declaration of a deceased person in one class of cases because it is the best evidence of which the case is capable, permitting the jury to judge of the interest of the declarant as bearing upon the weight of his testimony (Lawrence v. Tennant, supra), and to exclude the declaration of the deceased person in this case, would be to establish a particular rule of evidence for a special class of cases, for which no good reason can be given." To the same effect, see Smith v. Powers, 15 N. H. 546, 563; Lawrence v. Haynes, 5 N. H. 33, 20 Am. Dec. 554; 2 Wig. Ev. § 1563; 1 Gr. Ev. § 140a. The declaration of Torpey was not rendered inadmissible because it was made off the land and the boundary referred to was not pointed out (Lawrence v. Tennant, 64 N. H. 542, 15 Atl. 543; Smith v. Forrest, 49 N. H. 220, 237), nor on the ground of interest because he was a former owner of the plaintiff's land. The objection of interest goes to the weight of the evidence, and not to its competency. Nutter v. Tucker, 67 N. H. 185, 30 Atl. 352, 68 Am. St. Rep. 647; Wood v. Fiske, 62 N. H. 173; South Hampton v. Fowler, 54 N. H. 197, 200. There was a curve in the original lay-out of the main line, known in the case as the “2.30 curve," and one of the questions in dispute was as to where it commenced. The plaintiff's evidence was that prior to the time he bought his land, and, when the road had but a single track, the curve began some distance south of the southeast corner of his land and at Elm street, and that later, when the double track was put in, it was changed, and began further north and opposite the southeast corner. Upon this question the defendants called certain witnesses, who qualified as civil engineers, and were allowed to testify, subject to the plaintiff's exception, where in their judgment the point of curvature commenced, and also whether in their judgment the fence erected in 1904 was upon the true line between the plaintiff's land and the defendants' right of way. This was error. The location of the true line between the parties and the place where the curvature began were not subjects in regard to which the opinions of engineers could be given in evidence. Although an engineer's knowledge gained from study and experience in his profession, taken in connection with the data furnished by the plan of 1847, would aid him in making a resurvey of the defendants' right of way and in ascertaining the location of its west boundary, nevertheless it is difficult to see why a jury may not be capable of judging whether the bound thus located is the true bound without the aid of the opinion of the engineer upon the question, the data, and details of the resurvey having been laid before them. And what is true of the location of the west boundary is true of the point of the com In 1847 a line of road known as the "Bellows Falls Branch," connecting with the main line of the defendants' road several hundred feet south of the plaintiff's premises and extending southwesterly across the Connecticut river to Bellows Falls, Vt., was constructed. In 1881 stone bounds were set along the road on lines claimed by the defendants to be the center lines of the rights of way as surveyed and laid out in 1847 and 1849. They were set 1,000 feet apart, beginning with the branch line at the northeasterly end of the bridge over the Connecticut river, thence in a northerly direction along that line to the main line, and thence on the main line several miles north of the plaintiff's premises. In support of their contention, and subject to the plaintiff's exception, the defendants called one Clark, who worked for them as a civil engineer in 1881 on these lines; and in reply to the question, "Did you set boundswhat did you do with reference to setting bounds along the line of the Sullivan County 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 switch,' along up by Dutchman's crossing, following the track up to Charlestown and 64 Am. Dec. 323, it is said: "When it is supposable that jurors can form a correct judgment or opinion without the aid of the |