In Cummings v. Stone, 13 Mich. 70, the plaintiff's tugboat, while towing a raft belonging to the defendant, slackened speed, and on starting again the tow line, which was the property of the defendant, caught and drew up an anchor and chain which were secured and put on the raft by the defendant, and it was held that the plaintiff and defendant were joint finders of the property.

In these decisions the courts appear to have been governed by those practical considerations of fairness and conceptions of common right which influence just and thoughtful men in the ordinary affairs of life and which are in harmony with the principles of equity and not discountenanced by rules of law. In reaching the conclusion that the discovery of the three cans should be deemed one transaction, and that the participation of the plaintiffs in the discovery of the coins was sufficient to constitute them joint finders with the defendant, the jury in the cases at bar appear to have been governed by the same equitable considerations, and it is the opinion of the court that the verdicts were warranted by the evidence. Exceptions and motions overruled.

(104 Me. 285)

MOORE et al. v. ARCHER. (Supreme Judicial Court of Maine. July 10, 1908.)

1. APPEAL AND ERROR (§ 927*)-EXCEPTIONS TO NONSUIT-REVIEW.

Upon exceptions to an order of nonsuit, the question is whether the report of the evidence contains evidence sufficient to prove all the propositions essential to the maintenance of the action. If any one of those propositions is supported by the evidence reported, the exceptions must be overruled.

[Ed. Note. For other cases, see Appeal and Error, Dec. Dig. § 927.*]

introduce the evidence, his exceptions must be overruled. see Trespass,

[Ed. Note.-For other cases, Dec. Dig. § 43.*]

(Official.)

Exceptions from Supreme Judicial Court, Hancock County.

Action by Fred Moore and Jeremiah Hurley against Alton Archer. A nonsuit was ordered for defendant, and plaintiff excepts. Exceptions overruled.

Trespass quare clausum fregit, brought by the plaintiff against the defendant, alleging that the defendant, on February 12, 1908, with force and arms broke and entered the plaintiffs' close situate in Plantation No. 8, Hancock county, and then and there cut down and carried away certain wood and general issue, with brief statement alleging lumber then and there growing. Plea the as follows:

"(1) If he was cutting or doing other acts at any time, he was so acting by authority on said premises, described in plaintiffs' writ, of, and under permission from, Lynwood F.

Giles.

(2) That said Lynwood F. Giles is vested with legal title to the premises described in the writ of plaintiffs, and was so vested at and before the time alleged that the trespass was committed."

The action came on for trial at the April term, 1908, Supreme Judicial Court, Hancock county. At the conclusion of the plaintiffs' evidence the presiding justice, upon motion of the defendant, made the following order: "Nonsuit for the defendant is ordered with stipulation on his part that if the law court overrules this order, then the defendant agrees that judgment may be entered for the plaintiffs in the sum of $10 and costs." To this order the plaintiffs excepted.

Argued before EMERY, C. J., and SAVAGE, PEABODY, CORNISH, KING, and

D. E. Hurley, for plaintiffs. L. F. Giles, for defendant.

EMERY, C. J. This was an action of trespass quare clausum. The plaintiffs having put in their evidence and rested, the defendant moved for a nonsuit, and stipulated that if the law court should find that the evidence would sustain the action, it might order judgment for the plaintiffs, with damages assessed at $10. A nonsuit was ordered, and the plaintiffs brought the case to the

sufficiency of the plaintiffs' title and possession to maintain the action. The defendant, however, would not admit that such was the understanding. While from all the circumstances it does seem probable that the entry was not understood to be in dispute, yet there was no evidence of entry in the record before us. The general issue was pleaded, which put the entry directly in issue. In his brief statement, and in his admissions of record, the defendant carefully avoided admitting the entry as a fact. His willingness to have judgment go against him in case the plaintiffs' evidence showed a cause of action would seem to indicate that he reserved all points as to the sufficiency of the evidence.

But whatever the fact may be, or whatever the understanding was, the only question before us is whether the evidence shows that the order of nonsuit was erroneous. Inasmuch as that evidence fails to show the fact of entry a fact essential to the maintenance of the action, the nonsuit was rightly ordered.

If, as seems probable, the plaintiffs omitted proving the entry because of their justifiable understanding that it was and would be admitted, there seems to be no way to relieve them as the case is presented. There was a ruling on the evidence. There is no suggestion that the bill of exceptions does not present the question ruled upon fairly and fully. If the exceptions be dismissed or discharged, instead of being considered and overruled, that ruling remains in force; the nonsuit stands. The plaintiffs' only remedy would seem to be to bring a new action, and at the trial prove what is not expressly admitted on the record. Exceptions overruled.

(75 N. H. 589)

ROBINSON v. MONADNOCK PAPER MILL. (Supreme Court of New Hampshire. Hillsborough. Jan. 5, 1909.)

1. TRIAL (8 120*)-ARGUMENTS OF COUNSELEVIDENCE TO SUSTAIN.

An inference that the suit was champertous, so as to justify the statement in argument of defendant's counsel that plaintiff's claim was a dishonest one "jobbed out" to the deputy sheriff, could not be properly drawn from evidence that plaintiff employed a deputy sheriff to prepare the case for trial, and that the deputy employed engineers, who looked to him for their pay, gave them directions as to making their surveys, and took the writ in the action to another deputy to serve.

[Ed. Note.-For other cases, see Trial, Dec. Dig. § 120.*]

2. APPEAL AND ERROR (§ 925*)-PRESUMPTION -ARGUMENT OF COUNSEL.

Where, on motion to set aside the verdict for misconduct of counsel in argument, the question whether a certain inference could properly be drawn from the evidence is transferred from the superior court to the Supreme Court, with the statement that the verdict is to be set aside unless the argument was justifiable, no

presumption that the error of counsel was corrected by the court can be indulged.

[Ed. Note. For other cases, see Appeal and Error, Dec. Dig. § 925.*]

Transferred from Superior Court, Hillsborough County; Pike, Judge.

Action by Henry F. Robinson against the Monadnock Paper Mill. A question on a motion to set aside the verdict was transferred to the Supreme Court. Exception sustained. Verdict set aside.

dict for the defendant. The evidence tended Case, for flowage. Trial by jury, and verto show that the plaintiff employed a deputy the officer employed engineers, who looked sheriff to prepare the case for trial; that to him for their pay, gave them directions writ in the action to another deputy to serve. as to making their surveys, and took the Against the plaintiff's objection, and after warning from the court that he must take his chances, the defendant's counsel argued that the plaintiff's claim was a dishonest one, "jobbed out" to the deputy sheriff. On a moof counsel, the presiding justice found that the argument was intended to, and probably did, influence the jury. The question whether the inference could properly be drawn from the evidence was transferred, without ruling, by Pike, J., from the May term, 1908, of the superior court.

tion to set aside the verdict for misconduct

James F. Brennan, for plaintiff. Hamblett & Spring and Doyle & Lucier, for defendant.

PEASLEE, J. There was no evidence from which the inference that the suit was a champertous one could properly be drawn. The presumption that the error of counsel was corrected by the court (Mitchell v. Railroad, 68 N. H. 96, 117, 34 Atl. 674) cannot be applied here; for it not only appears in the case that the error was not corrected, but it is stated in terms that the verdict is to be set aside unless the argument was justifiable. Verdict set aside.

Exception sustained. All concurred.

(75 N. H. 166)

CITY OF MANCHESTER v. HODGE et al. (Supreme Court of New Hampshire. Hillsborough. Jan. 5, 1909.) PRIVATE ROADS (§ 8*)-OBSTRUCTION-RIGHTS OF ABUTTERS.

Abutting owners upon a private way can use the opposite half of the way which abuts upon a cemetery, and the legal title of which is in the city as trustee for the cemetery, for travel only, and can only use the other half for travel and other purposes not inconsistent with its reasonable free use as a way by the city in going to and from the cemetery, and an obstruc tion of the way will be restrained.

[Ed. Note.-For other cases, see Private Roads, Dec. Dig. § 8.*]

from superior court.

another.

Case discharged.

See, also, 73 N. H. 517, 64 Atl. 23, and 74 N. H. 468, 69 Atl. 527.

Willow street is a private way, and is the westerly boundary of the plaintiffs' land and the easterly boundary of the defendants' land. The defendants are in possession of the street opposite their respective properties, have inclosed the same with fences, have built sheds thereon, and have incumbered the ground with lumber, stone, iron, and other things in great quantities. By so doing they have prevented and still prevent all travel over the street, and deprive the plaintiffs of all means of access to their cemetery over the same. In this proceeding the plaintiffs moved that the defendants be ordered to remove all obstructions thus maintained by them. The defendants claim that they have the legal right to use and occupy Willow street in the manner and to the extent above set forth. If they do not have the legal right to so use the street or any part of it, an injunction is to issue to the extent of the unlawful occupation thereof; otherwise, the plaintiffs' motion for such an order is to be denied.

George A. Wagner, David Cross, and Taggart, Tuttle, Burroughs & Wyman, for plaintiffs. Burnham, Brown, Jones & Warren, for defendants.

BINGHAM, J. The defendants, as abutting owners upon Willow street, have no right to use the half of the street adjacent to the cemetery for any purpose other than travel, and no right to use the other half of the street, except for the purpose of travel, and such other purposes as are not inconsistent or incompatible with its reasonably free use as a way by the city in going to and from the cemetery. Graves v. Shattuck, 35 N. H. 257, 69 Am. Dec. 536; Low v. Streeter, 66 N. H. 36, 20 Atl. 247, 9 L. R. A. 271; Ladd v. Brick Co., 68 N. H. 185, 37 Atl. 1041; Jewell v. Clement, 69 N. H. 133, 39 Atl. 582; Tudor Ice Co. v. Cunningham, 8 Allen (Mass.) 139; Welch v. Wilcox, 101 Mass. 162, 100 Am. Dec. 113; Williams v. Clark, 140 Mass.

(75 N. H. 171) W. P. CHAMBERLAIN CO. v. TUTTLE. (Supreme Court.of New Hampshire. Cheshire. Jan. 5, 1909.)

1. APPEAL AND Error (§ 267*) — PRESENTATION OF GROUNDS OF REVIEW-EXCEPTION TO JUDGMENT.

No question is presented for review, where no exception was taken to the order of judgment.

[Ed. Note.-For other cases, see Appeal and Error, Dec. Dig. § 267.*]

2. SALES (§ 230*)-RIGHTS OF BUYER AGAINST THIRD PARTIES CREDITORS.

Where hotel furniture was sold on Saturday afternoon, the sale being made six miles from the hotel, and the buyer did not then take possession of the property, because the carpet take possession Monday, but nothing was done could not be taken up before dark, intending to to show that title had passed, or to give notoriety to the sale, it was invalid as against creditactual possession was taken, and the fact that ors of the seller attaching the property before it was more convenient for the buyer to take possession on Monday did not make delivery impossible on Saturday, so as to excuse the buyer's failure to then take possession.

[Ed. Note.-For other cases, see Sales, Cent. Dig. 630; Dec. Dig. § 230.*]

Transferred from Superior Court, Cheshire County; Stone, Judge.

Action by the W. P. Chamberlain Company against William S. Tuttle. Order of judgment for defendant, and case transferred from the superior court. Judgment for defendant.

March 14, 1908, the defendant, sheriff of the county, duly attached upon a valid writ the property in question, which was furniture in a hotel at Marlborough, as the goods of George L. Cutting, without notice of the plaintiffs' claim. They claimed the property under a bill of sale from Cutting given the same day, but before the attachment. There was no delivery of the property to the plaintiffs, but it remained in the hotel, which was open and occupied by Cutting. The sale was made at the plaintiffs' place of business in Keene, six miles from the hotel, on Saturday afternoon. The plaintiffs did not then go to take possession of the property because there was not time enough to take up the carpets before dark, but they intended to take possession Monday morning, and so arranged with Cutting.

John E. Allen and Charles H. Hersey, for plaintiff. Joseph Madden, for defendant.

PARSONS, C. J. In the absence of an exception to the order of judgment there is no. question before the court. Assuming from the transfer of the case that the plaintiffs

excepted to the order, they take nothing by such exception. By the terms of sale the property was left in Cutting's possession until the following Monday, without anything to indicate the change of title or to give notoriety to the sale. Such unexplained retention of possession is a conclusive badge of fraud, which renders the sale invalid as against a subsequent purchaser or attaching creditor without notice. "It is unnecessary to cite authorities to the point that a sale of chattels is invalid as to creditors of the vendor when the property is allowed to remain in his use and possession." Doucet v. Richardson, 67 N. H. 186, 187, 29 Atl. 635. See cases collected in Locke v. Brick Co., 73 N. H. 492-494, 63 Atl. 178. Evidence that it was more convenient to delay the delivery does not authorize a finding that delivery was impossible. If at the time of the sale manual delivery could not be made because the negotiators were at a distance from the property, the arrangement that the vendees should not go to the hotel where the vendor lived to take possession until a later date permitted the vendor to resume the actual possession with all the indicia of ownership, and to retain the use of the chattels in the meantime. "It is the open possession by the vendor as owner that works the fraud." Corning v. Records, 69 N. H. 390, 395, 46 Atl. 462, 465, 76 Am. St. Rep. 178. It could not be found upon the facts that the situation was such that there could be no delivery. Ricker v. Cross, 5 N. H. 570–572; Corning v. Records, supra. The parties agreed that there should be none, and this secret agree ment renders the sale invalid against the subsequent attaching creditor.

Judgment for the defendant. All concurred.

(75 N. H. 131)

BUNKER v. MANCHESTER REAL ESTATE & MFG. CO.

of borrowed money, was terminated before the borrower's creditor attached the land, by plaintiff's agreement to take the land in payment of the debt, and by recording the deed, plaintiff's title is valid.

[Ed. Note.-For other cases, see Fraudulent Conveyances, Dec. Dig. § 113.*]

4. FRAUDULENT CONVEYANCES (§ 308*)-JURY QUESTIONS.

ecution, against one to whom plaintiff agreed to Where plaintiff claimed land sold under exreconvey on repayment of borrowed money, whether the trust in plaintiff was terminated by his agreeing to take the land in payment of the debt before the land was attached by the borrower's creditor held, under the evidence, a jury question.

[Ed. Note. For other cases, see Fraudulent Conveyances, Dec. Dig. § 308.*1

5. FRAUDULENT CONVEYANCES (§ 291*)-EVIDENCE-INADEQUACY OF CONSIDERATION. That land was worth $250 more than the grantee paid for it was relevant, but not conclusive, on the issue of fraud in the conveyance. [Ed. Note.-For other cases, see Fraudulent Conveyances, Cent. Dig. & 856; Dec. Dig. § 291.*]

6. TRESPASS (§ 27*)-DEFENSES-FRAUDULENT CONVEYANCES.

Where one suing for trespass to land claimed under a deed recorded before the land was sold under execution against her grantor, deonly be defeated by showing that plaintiff's fendant claiming under the sale, the action could deed was fraudulent.

[Ed. Note. For other cases, see Trespass, Dec. Dig. § 27.*]

7. FRAUDULENT CONVEYANCES (§ 286*)—EviDENCE-KNOWLEDGE OF RECORD.

Where an action involved an issue whether

plaintiff's deed, which was recorded before an execution sale to another, under which defendant claims, was fraudulent, defendant's knowledge of the record was immaterial.

Conveyances, Dec. Dig. § 286.*]

[Ed. Note. For other cases, see Fraudulent

8. APPEAL AND ERROR (§ 1050*)-HARMLESS ERROR-ADMISSION OF EVIDENCE.

To be reversible error evidence improperly admitted must have been both immaterial and prejudicial.

[Ed. Note. For other cases, see Appeal and Error, Dec. Dig. § 1050.*]

9. CORPORATIONS. (§ 428*)-NOTICE TO AGENT. Where plaintiff, in suing for trespass to

ham. Dec. 1, 1908.)

1. JUDGMENT (§ 729*)-CONCLUSIVENESS.

A decree, enjoining plaintiff from cutting timber on land claimed by her under a deed which the adverse party claimed was fraudulent, without prejudice to any right to object to the levy made by such party, does not estop plaintiff to deny the validity of the deed.

[Ed. Note. For other cases, see Judgment, Dec. Dig. 729.*]

2. FRAUDULENT CONVEYANCES (§ 113*) — SECRET TRUSTS-TRANSACTION CONSTITUTING. Plaintiff's agreement to reconvey land on repayment of borrowed money, and in the meantime to permit the borrower's father to cut firewood on the locus, constituted a secret trust. [Ed. Note.-For other cases, see Fraudulent Conveyances, Cent. Dig. § 365; Dec. Dig. § 113.*]

CRET TRUSTS-TERMINATION.

land was sold, under execution against her grantor, under which sale defendant company claims, a declaration by plaintiff's counsel to a third person before defendant purchased that there was great risk in buying was inadmissible against defendant, if such third person was not its representative.

[Ed. Note. For other cases, see Corporations, Dec. Dig. § 428.*]

Transferred from Superior Court, Rockingham County; Chamberlin, Judge.

Action by Julia A. Bunker against the Manchester Real Estate & Manufacturing Company. Transferred on defendant's exceptions, on verdict for plaintiff. Exceptions overruled.