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premises, their occupancy by the appellant asces, it must be presumed that the Legislature her tenant for a term which expired at mid- intended that the notice to the tenant must night on July 31, 1907, the service upon him be such as to clearly inform him by whom of the notice to quit, and his refusal to give or on whose behalf it was sent, to what propup the premises. The petition concluded erty it related, and of what facts it was inwith a prayer for a summons against the tended to inform him. appellant, requiring him to show cause why In Cook v. Creswell, 44 Md. 581, it was restitution of the premises should not be contended that a landlord's notice to quit, made to the petitioner. This petition, al- almost identical in terms with the one now though in the name of the appellee “Nellie E. before us, was bad because it was addressed Stokes,” was not signed by her, but by to and served upon the tenant's husband, in"James C. Rogers, Atty. for Nellie E. Stokes.” stead of the tenant herself, but our predecesUpon the filing of the petition, summons was sors held it to be good, saying in that conIssued as prayed for against the appellant, nection: “A notice to quit will be held good and, he failing to appear in response thereto, if upon the whole it is intelligible and so certhe case was adjourned for one week, and tain that the tenant cannot reasonably misthen, after “trial bad" before the justice, the understand it. An obvious mistake in some judgment for the restitution was rendered, part will not invalidate it, if it is otherwise from which the appeal to the circuit court so explicit that the party receiving it cannot was taken.

In Clark v. Keliher, No objection is made by the appellant to 107 Mass. 406, the notice was addressed to the contents of the notice to quit or the peti- John Clark, whose full name was Thomas B. tion to the justice. The two grounds stated Clark. Ames, J., in considering this mistake, by him in his motion to quash the proceed uses the following language: "The notice ings in the circuit court, and relied on in to quit was sufficient and lawful both in subhis brief in this court, for denying the ju- stance and the mode of service. There was risdiction of the justice of the peace to en- no uncertainty as to the party from whom it tertain the appellee's petition, are that nei- emanated or the tenement to which it apther the notice to quit nor the petition to the plied, and there could have been no doubt justice were signed by the appellee herself, that it was intended for the family who ocand that, therefore, they failed to so comply cupied that tenenent." Upon the principles with the provisions of article 53, Code Pub. thus announced, there can be no doubt of the Gen. Laws 1904, as to give the justice juris- sufficiency of the notice now under consideradiction. We do not regard either one of tion. these grounds of objection as sound. Section The appellant having signed and sealed the 1, art. 53, Code Pub. Gen. Laws 1904, pro- lease of July 12, 1906, and gone into possesvides both for giving the notice to quit and sion of and occupied the demised premises filing the petition to the Justice of the peace. under and by virtue of that lease, is estopped Its language is: “In all cases where any in- from denying the truth of the recital containterest in real estate shall be let or leased for ed on its face that Rogers & Farden were any definite term or at will and the lessor the agents of the appellee to rent tbe properhis heirs, executors, administrators or as-ty. A landlord's agent having authority to signs shall desire to repossess the same after rent a property is presumed to have like authe expiration of the term for which it was thority to give to the tenant a notice to quit. demised and shall give notice in writing one 24 Cyc. 1331; McClung v.'McPherson, 47 Or. month before the expiration of said term or 73, 81 Pac. 567, 82 Pac. 13. Furthermore, the determination, of said will, to the tenant or appellee as landlord subsequently ratified the the person actually in possession of the prem- act of her agent in making the lease and givises to remove from the same at the end of ing the notice to quit by declaring in her Raid term, and if the said tenant or person petition to the justice of the peace that she in actual possession shall refuse to comply had made both of them. It is equally clear therewith the lessor, his heirs, executors, ad that the signing of the petition to the justice ministrators or assigns may make complaint by the counsel of the appellee was both apthereof in writing to any justice of the peace propriate and sufficient. It professed on its of the county wherein such real estate is face to be her petition, and the prayer situate." It is to be observed that this sec- for relief was on her behalf. It was said in tion merely authorizes the lessor to "give no- the opinion of this court in Weikel v. Cate, tice in writing" to the tenant at the time 58 Md. 105, that the office of justice of the therein mentioned, and, in the event of the peace has never been considered a court of refusal of the tenant to comply therewith, law because a court of law within the mean"to make complaint thereof in writing" to the ing of the Constitution is a court of record; justice without specifying the form of the no- yet that office is almost as old as the comtice or the method of its service, or indicat- mon law itself. Originally justices of the ing the style or details of the complaint to peace were merely conservators of the peace, be made to the justice other than to require but at an early day in England they were in. both to be in writing. It does not in terms vested by statute with limited judicial powrequire either instrument to be signed by the ers in both civil and criminal matters. They

be misled.

CERS

stitution, which provides for their appoint-j are, however, exceptions to this rule (Pub. ment, and declares that their jurisdiction St. 1901, c. 56, $S 10, 12, 16, 18; Conn. River shall be the same which they theretofore ex. Lumber Co. v. Columbia, 62 N. H. 286; Coe ercised or should thereafter be prescribed by v. Errol, 62 N. H. 303; Winkley y. Newton, law. A litigant is not required to conduct 67 N. H. 80, 36 Atl. 610, 35 L. R. A. 756 ; proceedings before them by counsel, but it Winnipiseogee Paper Co. v. Northfield, 67 N. has long been a recognized method of prac- H. 365, 29 Atl. 453; Conn. Valley Lumber tice to do so, and we think that the filing of Co. v. Monroe, 71 N. H. 473, 52 Atl. 940); her petition by the appellee over the signa- but no provision of law making an exception ture of her counsel in the present case consti- of the class of property here in question has tuted a compliance with the requirements of been pointed out, and an examination of the article 53, Code Pub. Gen. Laws 1904, in statutes has disclosed none. The abatement that connection. As the justice of the peace was properly granted. before whom the present proceedings were Exception overruled. All concurred. instituted had jurisdiction to entertain them, the judgment of the circuit court affirming his decision was final, and no appeal lies

(75 N. H. 148) therefrom to this court, and the present ap- LAWRENCE V. TOOTHAKER et al. peal must be dismissed.

(Supreme Court of New Hampsbire. Coos. Appeal dismissed, with costs.

Dec. 1, 1908.) 1. MUNICIPAL CORPORATIONS ($ 170*)-CON

TRACTS-LIABILITY OF OFFICERS-EVIDENCE. (75 N. H. 138)

Evidence held not to support a finding that, DRESSER V. TOWN OF HOPKINTON. when a city board of education contracted with

an architect to draw plans for a schoolhouse, (Supreme Court of New Hampshire. Merri- the members of the board intended to bind themmack. Dec. 1, 1908.)

selves personally, or that the architect under

stood that they so intended. TAXATION ($ 274*) — PERSONAL PROPERTY PLACE-RESIDENCE OF OWNER.

[Ed. Note.-For other cases, see Municipal Under Pub. St. 1901, c. 56, § 1, providing Corporations, Cent. Dig. 88 380, 391; Dec. Dig. that personal property shall be taxed to the owner at the place of his residence, and under 2. MUNICIPAL CORPORATIONS (8 170*)-OFFIsectious 10, 12, 16, and 18, excepting from sec

CONTRACT NOTICE OF STATUTORY tion 1 animals and stock in trade, vessels, and POWER. boats, wood, lumber, etc., a steam derrick' used Where a person contracted with a city in thé erection of a mill by the owner in a place board of education in its official capacity, he was other than his residence is not subject to tax chargeable with knowledge whether the board in such latter place; the exceptions not cover- had statutory power to make the contract which ing steam derricks.

would ordinarily be a question of law, and, the [Ed. Note.-For other cases, see Taxation, contract not being within the board's authority Cent. Dig. $ 448; Dec. Dig. $ 274,*]

to make, he could not recover thereon from the

members of the board personally; where both Exceptions from Superior Court, Merri- parties acted in good faith, believing the board mack County; Wallace, Chief Justice.

had the requisite authority, in the absence of Petition by John W. Dresser against the

their guaranty of their authority. Town of Hopkinton to abate a tax. From a Corporations, Cent. Dig. $ 391; Dec. Dig. 8

[Ed. Note.-For other cases, see Municipal judgment abating the tax, defendant brings 170.*] exceptions. Exceptions overruled.

Exceptions from Superior Court, Coos April 1, 1907, the defendants assessed County; Chamberlain, Judge. against the plaintiff a tax of $9.50 upon a Action by Archibald 1. Lawrence against steam derrick which was then in that town Oliver H. Toothaker and others. Verdict for a temporary purpose, being used there for plaintiff, and case transferred from the in the erection of a mill. On that date, and superior court on defendants' exception. Exfor more than 20 years previously, the plain- ception sustained, and verdict set aside. tiff had his residence and domicile in Franklin. He was duly notified of the tax, sea- facts: The plaintiff is an architect, and the

The evidence tended to show the following sonably applied to the selectmen for an defendants constituted the board of educaabatement, and, upon their refusal, season- tion in Berlin at the time of the contract in ably filed his petition. In 1907 he was taxed

question. The defendants requested the on the same property in Franklin. Upon the plaintiff to make plans for a school building foregoing facts it was ordered that the tax to take the place of one which had been be abated, and the defendants excepted.

burned, and, after some negotiations between Leach, Stevens & Couch, for plaintiff. the parties, a contract was agreed upon for Dudley & Lowe, for defendant

his employment. Soon afterward the de

fendants notified the plaintiff to cease work. BINGHAM, J. As a rule, personal prop-ing on the plans, as they did not wish to erty is taxable in the town in which the use them. He replied that he should hold owner resides. Pub. St. 1901, c. 56, $ 1; Kent them to the contract. He charged his servv. Exeter, 68 N. H. 469, 44 Atl. 607. There lices to the city of Berlin, and understood

was

that he was dealing with the board of etlu-, ercise of it in a particular case is authorized cation. In a suit against the city on this is ordinarily a question of law, which the account he

unsuccessful, upon the other contracting party has ample opportuniground that the board of education had no ty to investigate and decide for himself. If authority to bind the city. Both parties act for any reason he is unwilling to incur that ed in good faith in making the contract. risk, an express guaranty by the other that Scott Sloane, for plaintiff.

Matthew J. he acts within the scope of his authority Ryan and Edmund Sullivan, for defendants. would be necessary to render the latter lia

ble on the contract. Underhill v. Gibson, 2 WALKER, J. The evidence is not suffi- N. H. 352, 9 Am. Dec. 82; Brown v. Rundcient to support a finding that at the time the lett, 15 N. H. 360; Farnam v. Davis, 32 N. contract was made the defendants intended H. 302. Cases like Weare v. Gove, 44 N. to bind themselves personally, or that the H. 196, do not conflict with this result. It plaintiff understood they did. No express was there expressly recognized (page 197 of promise on the part of the defendants was 44 N. H.) that the agent cannot be held made, and it was not suggested by the plain- "where the promisee, being fully informed tiff that the defendants were to be deemed of the facts upon which the assumed authe responsible contracting parties. Nor is thority rests, forms his own judgment, and there any evidence that the defendants sup- contracts for and relies upon the engagepressed any material facts relating to their ment of the principal alone. In such a case authorization to bind the city. Both parties it would be unjust that the agent should be acted in good faith, upon the assumption bound because such was not the contract.” that the defendants were authorized to make As the reported evidence negatives the idea the contract as representatives of the city ; that the parties intended that the defendants and, in accordance with that understanding, should be individually liable on the contract, the plaintiff gave credit to the city. It may be and as there is no evidence that they guaranconceded that the defendants, as the board teed their authority, or were guilty of any of education, had no authority to contract fraud upon the plaintiff, the defendants' mowith the plaintiff for and in behalf of the tion for a verdict should have been granted. city, and that the attempted exercise of such Exception sustained. Verdict set aside. authority was futile. But it does not follow all concurred. that the defendants bound themselves to pay for the plaintiff's services. Ogden v.

(75 N. H. 111) Raymond, 22 Conn. 379, 384, 58 Am. Dec.

DANFORTH V. FISHER. 429. The board's want of statutory power to (Supreme Court of New Hampshire. Hillsbordo what it attempted to do was as within the

ough. Nov. 4, 1908.) cognizance of the plaintiff as that of the

1. MASTER AND SERVANT (8 302*)-INJURIES defendants. Richards v. Columbia, 55 N. H.

TO THIRD PERSONS-DEVIATION FROM IN96, 99; Sprague v. Cornish, 59 N. H. 161. STRUCTIONS. The plaintiff was chargeable with knowledge Where a chauffeur was told to take defendof their official limitations; and, having ant's automobile to a hotel at a specified time,

and, instead, takes the automobile in another voluntarily contracted with them in their direction to call on a friend, and, while reofficial capacity and given credit to the city turning, runs against plaintiff's horse, which for the performance of the contract, he is in liable for the injuries, a master not being liable

ran away and injured plaintiff, defendant is not no position to claim that the defendants are for an injury caused by his servant not acting personally responsible on the contract, in within the scope of his employment. the absence of an express promise by them (Ed. Note.--For other cases, see Master and to incur that responsibility, unless the law Servant, Cent. Dig. $ 1220; Dec. Dig. $ 302.* ] would imply a promise of guaranty that they 2. MASTER AND SERVANT ($ 302*)—DANGERhad the requisite power.

But “where all

OUS INSTRUMENTALITIES–AUTOMOBILE.

The owner of an automobile is not liable the facts and circumstances surrounding the for injuries resulting from its use merely becase are known to both the agent and third cause he is the owner, and regardless of whethparty, but there is a mutual mistake as to er the person in charge of the automobile was a matter of law—as the principal's liability acting under his directions at the time of the

accident. or the legal effect of the agent's written au

[Ed. Note.-For other cases, see Master and thority—the agent cannot be held personally Servant, Cent. Dig. 88 1217–1221; Dec. Dig. 8 responsible by reason of the mere fact that 302.*] the principal cannot be held, unless the agent |3. MASTER AND SERVANT (8 302*)-INJURIES by some apt expression guarantees the con

TO THIRD PERSONS-INCOMPETENCY OF SERVtract or assumes it himself." .2 Cl. & Sk. Ag. 582b; Jefts v. York, 10 Cush. (Mass.) that his chauffeur is a reckless driver will not

Knowledge by the owner of an automobile 392. And this principle of law is equally ap- make the owner liable for injuries which occurplicable when public officers, like the defend- red at a time when the chauffeur was using the ants, assume to bind the public by their con- rections of the owner.

automobile for his own use, contrary to the ditracts with third parties. Their authority is

[Ed. Note.-For other cases, see Master and statutory; and whether their attempted ex-Servant, Cent. Dig. $ 1220; Dec. Dig. $ 302.*]

ANT.

Exceptions from Superior Court, Hillsbor- | Mass. 378, 59 N. E. 1038, 88 Am. St. Rep. ough County; Chamberlin, Judge.

490; Stone V. Hills, 45 Conn. 44, 29 Am. Action by Clarence Danforth against Fred Rep. 635; Fiske v. Enders, 73 Conn. 338, 47 W. Fisher for personal injuries received by Atl. 681; Doran v. Thomsen, 74 N. J. Law, being thrown from his wagon in the running 445, 66 Atl. 897; Quigley v. Thompson, 211 away of his team, which was run into by Pa. 107, 60 Atl. 506; Lotz v. Hanlon, 217 defendant's automobile. A nonsuit was or- Pa. 339, 66 Atl, 525, 10 L. R. A. (N. S.) 202, dered and plaintiff excepts. Exception over 118 Am. St. Rep. 922; Thorp v. Minor, 109 ruled.

N. C. 152, 13 S. E. 702; Lewis v. Amorous, 3 Osgood & Osgood, for plaintiff. Branch & Ga. App. 50, 59 S. E. 338; Reaume v. NewBranch, for defendant.

comb, 124 Mich. 137, 82 N. W. 806; Reynolds

V. Buck, 127 Iowa, 601, 103 N. W. 946;. Sla. YOUNG, J. 1. However it may be in oth- ter v. Company, 97 Minn, 305, 107 N. W. 133; er jurisdictions, in this state the test to de- Evans v. Company, 121 Mo. App. 266, 101 S. termine whether a master is liable to a W. 1132; Jones v. Hoge, 47 Wash. 663, 92 stranger for the consequences of his serv. Pac. 433, 14 L. R. A. (N. S.) 216; Patterson ant's misconduct is to inquire whether the v. Kates (C. C.) 152 Fed. 481 ; 26 Cyc. 1538; latter was doing what he was employed to 20 Am. & Eng. Enc. Law, 163 et seq.; 34 do at the time he caused the injury com- Cent. Dig. tit. Master & Servant, $$ 1219, plained of. If he was, the fact that he was 1220. not doing it in the way 'expected is immate- 3. The defendant is not liable merely be rial. Rowell v. Railroad, 68 N. H. 358, 44 cause he was the owner of the automobile Atl. 488. But, if at the time he did the act by which the plaintiff was injured. If the which caused the injury he was not acting Legislature can enact that an automobile or within the scope of his employment, the mas- its owner shall be liable for any injury the ter is not liable. Cordner v. Railroad, 72 N. driver may do to others whenever the latter H. 413, 57 Atl. 534; Turley v. Railroad, 70 would be, it has not seen fit to do so. Nor N. H. 348, 47 Atl. 261; Searle v. Parke, 68 is there any force in the plaintiff's conten. N. H. 311, 34 Atl. 744; Page v. Hodge, 63 N. tion that the owner of an automobile is liaH. 610, 4 Atl. 805; Andrews v. Green, 62 ble to strangers in the same way and to the N. H. 436; Grimes v. Keene, 52 N. H. 330, same extent he would be if it were a wild 335; Wilson v. Peverly, 2 N. H. 548. At 5 animal. If it were the law of this state that o'clock on the day of the accident McCauley, one who has a dangerous element or a wild who was employed by the defendant as a animal on his premises is liable for all the chauffeur, took the automobile from the damage it does after escaping from his conplace where it was kept, drove to the defend- trol, that rule would have no application to ant's store, and awaited orders. He was the facts here presented. In this case 'the told to get his supper and to be at the New automobile did not escape from the defendCity Hotel with the automobile at a quarter ant's control. It was taken from him by MCbefore 7 o'clock. After he had eaten supper, Cauley. There is nothing inherently dangerinstead of taking the car to the hotel ac- ous about an automobile any more than cording to the defendant's order, he drove to about an axe. Both are harmless so long as West Manchester, a mile or two distant from no one attempts to use them, and both are his boarding place, and in an opposite direc- likely to injure those who come in contact tion from the hotel, for the purpose of call with them when they are used for the puring upon a friend. At the time of the acci- pose for which they were intended. The dent he had finished his call, and was on his case does not stand exactly as it would if way to the hotel. Although the evidence the defendant bad employed McCauley to shows that McCauley was the defendant's care for his horse, and the latter had driven servant, and that he drove the automobile the animal to West Manchester, and left it against the plaintiff's horse and caused the unbitched in the street while he made a call animal to run away, it also shows that he upon his friend. In such case, if the horse took the automobile without the defendant's ran away and injured a third person, there permission and went with it on an errand of would be a basis for the argument that Mchis own; that he was acting for himself, Cauley's wrongful act in driving the horse and not for the defendant, at that time. As to West Manchester was the occasion, and it cannot be found from the evidence that his leaving it unbitched was the cause of McCauley was doing what he was employed the injury. Hayes v. Wilkins, 194 Mass. 223, to do at the time the plaintiff was injured, 80 N. E 449, 9 L. R. A. (N. S.) 1033, 120 there was no error in the order of nonsuit. Am. St. Rep. 549; Ritchie v. Waller, 63

2. The plaintiff contends that the law of Conn. 155, 28 Atl. 29, 27 L. R. A. 161, 38 Am. this state on the subject is not in harmony St. Rep. 361; Loomis v. Hollister, 75 Conn. with the view wbich obtains in most com- 275, 53 Atl. 579; Joel v. Morison, 6 Car. & mon-law jurisdictions. That his contention P. 501. is not well founded will appear from an ex- 4. If it were conceded that McCauley was amination of the authorities. Perlstein v. a reckless operator and that the defendant Company, 177 Mass. 530, 59 N. E. 194, 52 was aware of that fact, it could not be found

servant by the defendant was the legal cause LEAMING, V. O. (orally). I adhere to the of the plaintiff's injury. Knowledge that views which I expressed at the time the McCauley was habitually careless in the op- former application for a preliminary injunc eration of the automobile has no tendency to tion was made in this case; and I entertain prove that the defendant ought to have the view that the present record discloses no known or anticipated that he would steal conditiuns so essentially different from those the vehicle, or use it for his own purposes existing at the time of the former applicacontrary to the owner's explicit order; and, tion as to warrant preliminary relief at this unless that fact is found, it cannot be said time. I think that this court should, by a that the defendant's fault in employing a preliminary writ at least, hesitate to interchauffeur whom he knew to be reckless was fere with the management of an armory the cause of the plaintiff's Injury.

building when the persons who are by law The question whether the plaintiff could intrusted with the management are mani. recover if the defendant had known Mc- festly exercising, in good faith, their best Cauley was likely to use the automobile judgment and discretion in the use of the without permission is not in issue, and no building, and are devoting it to uses which opinion is intended to be expressed thereon. they believe to be essential and conducive to Exception overruled. All concurred. the general benefits and needs of the mill

tary organization, unless, of course, it should be made to plainly appear that the manag

ing officials are so clearly mistaken in their McCARTER, Atty. Gen., v. DUNGAN et al. views that their judgment cannot be properly (Court of Chancery of New Jersey. Dec. 7, accepted as an exercise of a discretion which 1908.)

the law has imposed upon them. I also en1. INJUNCTION (8 92*)_SUBJECTS OF RELIEF tertain the view that the use of an armory USE OF PUBLIC PROPERTY.

building for amusement purposes is entirely Equity, will hesitate to interfere by pre- lawful when it can reasonably be said that liminary injunction with the management of an the amusements for which is used are esarmory building, where the persons intrusted with the management thereof are manifestly sential to the esprit de corps of the regiment. exercising in good faith their best judgment and If uses are indulged which tend to materialdiscretion in the use of the building.

ly injure the corpus of the armory build[Ed. Note.-For other cases, see, Injunction, ing, and are in that manner destructive of Cent. Dig. & 164; Dec. Dig. $ 92.*]

the state's property, or if amusements are 2. MILITIA (8 17*)—USE OF ARMORY—INJUNC- engaged in for purely commercial purposes,

The use of an armory building erected for a different question is presented; but, where the militia for amusement purposes is lawful, the amusements which are conducted in the where it can be said reasonably that the amuse building are not injurious to the property ments are essential to the needs of the militia, itself, and where it can reasonably be said and the use is not injurious to the property itself; and where an amusement conducted in that they are necessary to maintain the inthe building can reasonably be said to be neces- terest of the members of the guard and tend sary to maintain the interest of the members of to aid the procurement of re-enlistments, or the militia, or tends to aid the procurement aid in procuring new enlistments, or operate of re-enlistments or in procuring new enlistments, equity will not interfere.

to stimulate general interest and attendance [Ed. Note.-For other cases, see Militia, Dec. in the regular drill and instruction work, it Dig. $ 17.*)

seems to me entirely clear that such uses 3. MILITIA (8 17*)—USE OF ARMORY-INJUNC- come within the contemplated uses for which

the armory is erected. The fact that an amusement conducted in an armory building was of such a nature that

In the case as it was first presented the the members of the militia could not participate amusements which were sought to be entherein, except as spectators, did not show an joined were dancing and roller skating, and improper use of the building justifying relief by in those amusements the members of the regtemporary injunction, provided the single and iments participated with the public, and in primary purpose was to supply such amusements as were necessary to maintain the in- that way shared in the active enjoyment of terest of the members as distinguished from a the amusements, not only as spectators, but purpose to make money, especially where the use of the building for drilling purposes was

as participants. The complaints which are not interfered with.

now made embody one new condition, so far (Ed. Note.-For other cases, see Militia, Dec. as the amusement which was conducted in Dig. $ 17.*]

the armory building in September is conSuit by Robert H. McCarter, Attorney have been of such a nature that the mem

cerned, in that that amusement appears to General, against Nelson Y. Dungan and oth-bers of the organization could not participate ers.

Heard on bill for injunction on return in it except as spectators; and that, I think, of order to show cause. Denied.

is the only occasion in which the armory has John H. Backes, for complainant Nelson been used for entertainment purposes in a Y. Duogan, pro se.

manner in which the members of the Guard

TION.

TION.

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