seem to be a catalogue. If it is not as comprehensive and exhaustive as it might be, it is at least complete in itself. If a library catalogue is not completed until the books have been listed upon all useful theories of arrangement and classification known to bibliographers, it would be rash to assume that the Legislature, which is not made up of men having the technical learning of librarians, meant when they used the word "catalogue" a work of several volumes which should unite several distinct theories of arrangement, so that each book would be indexed in as many different volumes as there were theories. Such an understanding evidently

was not entertained by the Legislature of 1893. The legislative purpose was to authorize the compilation of a catalogue of the books in the state library, upon some reasonably convenient plan to be determined by the trustees, and not to empower the trustees to publish several extended lists of 'books, which together might be deemed by some people to constitute one complete catalogue. When the Author List was published, no statutory authority remained for the compilation of another catalogue, however useful and desirable it might be. Thereupon it was provided that the accessions to the library should furnish material for supplements to the catalogue, which have since been published. In this way the Author List has been treated by the trustees as the statutory catalogue, in consonance, as it seems to us, with the legislative purpose. The statute furnishes no authority for the printing of the manuscript of the Subject List.

Petition denied. All concurred.

(75 N. H. 84)

CLOUGH v. ROCKINGHAM COUNTY

LIGHT & POWER CO. et al. (Supreme Court of New Hampshire. Rockingham. Nov. 4, 1908.)

1. ELECTRICITY (§ 19*)-INJURIES INCIDENT TO PRODUCTION-NEGLIGENCE QUESTION FOR

JURY.

In an action for injuries by contact with electrically charged wires strung across a street without a license therefor, as required by Pub. St. 1901, c. 81, evidence held to require the submission to the jury of the issue of negligence.

[Ed. Note. For other cases, see Electricity, Cent. Dig. § 11; Dec. Dig. § 19.*]

2. PRINCIPAL AND AGENT (§ 21*)-EVIDENCE OF AGENCY-TESTIMONY OF AGENT.

An agent may testify to the fact of his agency.

[Ed. Note.-For other cases, see Principal and Agent, Cent. Dig. § 39; Dec. Dig. 8 21.*] 3. PRINCIPAL AND AGENT (§ 22*)-EVIDENCE OF AGENCY-DECLARATIONS OF AGENT. Declarations of an alleged agent are not admissible to establish the agency.

[Ed. Note. For other cases, see Principal and Agent, Cent. Dig. § 40; Dec. Dig. § 22.*]

4. PRINCIPAL AND AGENT (8 22*)-EVIDENCE OF AGENCY-DECLARATIONS OF AGENT.

The declarations of an agent may be received provisionally, as verbal acts indicating that he was acting on another's behalf, leaving it to subsequent proof to establish his connection as agent.

[Ed. Note. For other cases, see Principal and Agent, Cent. Dig. § 40; Dec. Dig. § 22.*] 5. EVIDENCE (§ 121*)-RES GESTÆ.

In an action for injuries by coming in contact with electrically charged wires strung across a street while plaintiff was engaged in moving a house through the street, evidence of the declarations of a third person, who came and took charge of the wires, in response to a request made on the superintendent of the railway company maintaining some of the wires, made as part of the res gestæ, are admissible as bearing on plaintiff's exercise of due care in attempting to raise the wires from the roof of the house at the time of the accident.

[Ed. Note. For other cases, see Evidence, Cent. Dig. § 308; Dec. Dig. § 121.*]

6. ELECTRICITY (§ 19*)-INJURIES INCIDENT TO PRODUCTION ACTIONS - EVIDENCE MATERIALITY.

Where, in an action for injuries by coming in contact with electrically charged wires strung across a street without a license therefor, as required by Pub. St. 1901, c. 81, it appeared that no attempt was made, at the time of the injury, to disconnect the wires or to remove their supports, the failure to show that written notice was served on defendant, as required by section 14 of the chapter, did not defeat a recovery. [Ed. Note. For other cases, see Electricity, Cent, Dig. § 11; Dec. Dig. § 19.*]

7. MASTER AND SERVANT (8 301*)—EXISTENCE OF RELATION-EVIDENCE.

On the issue whether the superintendent of an electric railway company had authority to direct an employé of the railway company and of a power company to take charge of their high tension wires strung across a street, evidence held not to show such authority, so that the power company was not liable for injuries sustained in consequence of the act of such employé.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1210-1216; Dec. Dig. § 301.*]

Transferred from Superior Court, Rockingham County.

Case for personal injuries by George L. Clough against the Rockingham County Light & Power Company and another. There was a verdict for plaintiff, and the case transferred from the superior court. Verdict set aside.

was

The plaintiff's evidence tended to prove the following facts: The plaintiff is a carpenter, and was employed to assist in moving a small house through the streets of Portsmouth by one Ham, who had a permit for the work from the city authorities. The building was drawn on wheels. To move it to its destination it was necessary to pass a certain point where the defendants had strung two telephone wires across a street, and about 20 feet above its surface, and on the same set of poles, about 2 feet above the telephone wires, two electric light wires, each carrying 6,000 volts of electricity, and on the same poles, about 4 feet above the light wires, cer.

tain power wires, each carrying 13,000 volts of electricity. All the wires carried sufficient electricity to kill or severely injure a person coming in contact with them. The defendants had no license or location to place poles in and string wires across the street at this point, as required by chapter 81, Pub. St. 1901. As the building rested on the wheels, its top was a little higher than the telephone and electric light wires. The plaintiff was on top of the building, and when the wires caught on the roof, he attempted to pry them up with a hammer, so that the building would pass under them, and in so doing was severely injured by a shock of electricity. One of the men engaged in moving the building telephoned to Hayden, superintendent of the railway company, asking him to send a lineman to take charge of and look after the wires while the building was being moved under them. Hayden sent Bur. bank, who worked for both companies, being foreman of the electric railway company's car barn at Stratham, and rotary tender for the defendants at the car barn, and he took charge of and gave directions as to moving the building under the wires at the time of the accident. The evidence also tended to prove that the wires were uninsulated and that such a condition is dangerous, that the defendants were negligent in the location, construction, and management of the wires at the time and place of the accident, and that the plaintiff, in consequence of the defendants' negligence, was himself in the exercise of due care at the time. There was no evidence that Hayden or the railway company were expressly authorized to send Burbank to take charge of the defendants' high tension lines, and the question whether there was evidence that he had implied authority is discussed in the opinion. At the close of the plaintiff's evidence the defendants moved for a nonsuit. The motion was denied, and they excepted. They also excepted to the following portion of the charge to the jury: "One of the disputed points in this case is whether Burbank was present representing the defendant at the time of the accident. The plaintiff claims he was, and the defendant that he was not. You will determine whether he was sent there as a representative of the electric railway company or of the defendant, and, if he was sent representing the defendant, whether the person who sent him was authorized to do so. The defendant claims that Burbank was there as a representative of the railway company, expecting and understanding that the building was to be moved under the railway wires. The plaintiff claims Burbank was sent as an employé of the power company; that is, of the defendant. You will determine how that was. If he was sent there only as an employé of the railway company, then none of his acts bind the defendant. If he was sent there as an employé of the power com

den, who sent him, had authority to send Burbank for the power company; for if he had not, then none of his acts bind the power company. Hayden was not an officer of the power company, and it was not claimed by the plaintiff that he has shown Hayden or the railway company was expressly authorized by the defendant, in writing or orally, to act for it in regard to its lines. But it is claimed by the plaintiff that the authorization of the railway company to act for the power company is shown by repeated acts, where the railway company by its officers have directed, linemen to attend to the power company's line, and that this has been done under such circumstances that the knowledge and acquiescence of the power company is shown. An agency may arise by implication from repeated acts done, with the acquiescence of the principal. If you are satisfied that the railway company was habitually delegating linemen or other employés of the railway company to work upon and attend to the defendant's lines under such circumstances that the defendant must have known and acquiesced therein, then you may infer that the railway company was authorized to do these acts." There were other exceptions taken by the defendant at the trial which fully appear in the opinion.

Page & Bartlett and Ernest L. Guptill, for plaintiff. Kivel & Hughes, for defendants.

BINGHAM, J. The motion for a nonsuit was properly denied. There was sufficient evidence from which it could be found that the defendants were negligent, and that the plaintiff was in the exercise of due care. The evidence that the wires were strung across the highway without license, as required by chapter 81, Pub. St. 1901, was properly left to the jury, together with the other evidence in the case tending to show that the defendants were negligent. The instructions of the court in regard to this matter were correct. Lane v. Concord, 70 N. H. 485, 49 Atl. 687, 85 Am. St. Rep. 643; Bresnehan v. Gove, 71 N. H. 236, 51 Atl. 916; Nadeau v. Sawyer, 73 N. H. 70, 59 Atl. 369. An alleged agent may testify to the fact of his agency. Union Hosiery Co. v. Hodgson,

72 N. H. 427, 432, 57 Atl. 384; Kent v. Tyson, 20 N. H. 121, 126; 2 Wig. Ev. § 1078, note 4. But a third person cannot testify to declarations made by him for the purpose of establishing his agency. Nebonno v. Railroad, 67 N. H. 531, 38 Atl. 17; 2 Wig. Ev. § 1078. His declarations, however, may be "received provisionally as verbal acts indicating that he was acting on another's behalf, not his own, leaving it to subsequent proof to establish his connection as agent." 2 Wig. Ev. § 1078. Therefore the declarations of Burbank to the extent that they were used to establish his agency were in

as bearing upon the plaintiff's exercise of due care in attempting to raise the wires from the roof of the building, they were clearly admissible. The plaintiff had the right to understand, from the fact that Burbank came and took charge of the wires in response to a request made upon Hayden, that he could properly rely upon such information as Burbank gave him, and that It would be safe to attempt to raise the wires as he did.

The exception taken to the plaintiff's failare to show that written notice was served on the defendants, as required by section 14, c. 81, Pub. St. 1901, is without merit. No attempt was made to disconnect the defendants' wires or to remove their supports; and, if there had been, it is not clear that the defendants would have been entitled to the statutory notice. It would seem, rather, that the notice contemplated by the statute was intended to apply only to cases where the wires or poles that are to be disconnected or removed are lawfully in the highway.

The plaintiff concedes that Hayden was not expressly authorized by the power company to direct Burbank to take charge of their high tension wires at the place where the plaintiff was injured; and the defendants' motion for a nonsuit and exception to the charge presents the inquiry whether there was any evidence from which implied authority could be found. It appears that Day was the chief electrician of the railway company; that he not only had charge of the high tension wires of that company, but also of the power company, and had under him some 14 linemen who were located in different places through the territory traversed by the lines of the two companies. Each crew of men had a foreman. The Hampton crew, whose duty it was to take charge of the lines where the plaintiff was injured, consisted of 3 men and a foreman. The linemen constructed all the new work of the railway company, and moved and repaired all of their lines of wire when necessary. They also had charge of the high tension lines of the power company. Each company bore their part of the expense thus incurred. On the day of the accident, when Hayden was requested to send a lineman to take charge of the wires in the vicinity where the house was being moved, all the linemen in the Hampton crew were away at work, and Burbank, the foreman of the Stratham car barn, who also tended a rotary machine for the defendants at that place, was sent. As foreman of the car barn for the railway company, and tender of the rotary machine for the power company, he had nothing to do with the high tension lines of either company. There was no evidence that Hayden, or any officer of the railway company, had at any time, other than the one in question, called upon any of the men in the employ of

the power company or of the railway company, except linemen under the supervision of Day, to take charge of the high tension wires of the power company. The facts that it was the duty of linemen employed under Day to take charge of the power lines of both companies; that they were required to report to him what work was necessary to be done on both lines, and in case of an emergency to make repairs themselves without reporting-have no tendency to prove that Hayden was authorized by the power company to direct men in the employ of the railway company or of the power company, other than linemen, to take charge of or work upon the high tension lines of the power company. If it might be found that officers of the railway company, besides Day, were authorized to direct linemen to make repairs upon and take charge of the high tension lines of the power company, it could not be found that they had authority to direct men who were not linemen under Day to do such work, and for this reason there must be a new trial.

Verdict set aside. All concurred.

1. CARRIERS (§ 363*)-CARRIAGE OF PASSENGERS EJECTION OF PERSON AT PLACE OTHER THAN STATION-ACTION-Nature.

A carrier which ejected a person from a train for nonpayment of fare at a place other than a passenger station, in violation of Pub. St. 1901, c. 160, § 6, is not necessarily liable for the resulting damage, but it must appear that it occurred through its failure to perform the duty imposed by statute; and, to recover, the ejected person must prove the insufficiency of the station at the place of expulsion, his own care, and that the injury resulted from defendant's fault.

[Ed. Note.-For other cases, see Carriers, Cent. Dig. 1445; Dec. Dig. § 363.*]

2. CARRIERS (§ 382*)-CARRIAGE OF PASSENGERS-EJECTION AT PLACE OTHER THAN STATION-ACTIONS.

Where a person was ejected from a train five miles from his home, where there was no passenger station, and was in such good health and so well clothed that he could properly go home afoot, and there was no train that he could wait for, and it appeared that he would have walked home even if there had been a station, an illness contracted by him from the walk had no connection with his ejection, and he could not recover therefor.

[Ed. Note.-For other cases, see Carriers, Cent. Dig. 1483; Dec. Dig. § 382.*] Bingham, J., dissenting.

Transferred from Superior Court, Coos County.

Action by George Caher against the Grand Trunk Railway Company for ejecting plaintiff from a passenger train for nonpayment of fare at a place other than a passenger station. Verdict for plaintiff and case transferred from the superior court on defend

ant s exceptions. Exceptions sustained. Verdict and judgment for defendant.

The plaintiff was ejected from the train for nonpayment of fare at a point about half a mile from the Groveton station and five miles from his home in Stark. The train did not stop at Stark, and there was no other train to that place for almost two days. The plaintiff had but little money, was in good health and well clothed, and walked home to Stark. He stopped to rest several times on the way, and in so doing contracted the illness for which damages were claimed.

Sullivan & Daley and B. H. Hinman, for plaintiff. Rich & Marble and Drew, Jordan, Shurtleff & Morris, for defendant.

PEASLEE, J. The expulsion of Caher for nonpayment of his fare at a place other than a passenger station was illegal (Pub. St. 1901, c. 160, § 6; Baldwin v. Railroad, 64 N. H. 596, 15 Atl. 411); but it does not follow as a matter of course that the defendant is liable for the damage which was thereafter suffered. Caher could not complain that he was not permitted to stay on the train. He had no such right. His right was to be provided with passenger station accommodations when ejected; and this is the only right which the defendant invaded. The failure to provide, him passenger station accommodations is the only wrong with which the defendant can be charged upon the facts of the case.

The statute was enacted for the protection of passengers (Laws 1874, p. 344, c. 98), but not for the purpose of enabling those evading the payment of fare to compel the railroad to carry them from one regular station to the next one. Caher's rights certainly did not exceed those of a person going to a station to take passage by virtue of an existing contract for carriage. Yet, when such person sues for failure to perform the statutory duty to provide a reasonable station, he must show that he was "injured through their failure to perform the duty imposed by statute." In such a case the plaintiff must prove (1) the insufficiency of the station; (2) his own care; and (3) that the injury was the result of the defendant's fault. Boothby v. Railway, 66 N. H. 342, 344, 34 Atl. 157. In the present case there was evidence of a failure to provide station facilities and of Caher's care, but none that the injury complained of resulted from the defendant's fault. The failure to provide station facilities did not in any way affect the course of subsequent events. What use would or could Caher have made of a passenger station? He wished to go home, and there was no train he could wait for. He was in such good health and so well clothed that, as he now not only admits but urges, it was entirely proper that he should set out on the

journey afoot. There was no occasion for a station agent to take Caher in charge, or to relieve his physical or mental disabilities. Upon the evidence in the case, it conclusively appears that what did follow would have followed if the lacking station accommodations had been supplied. The plaintiff fails because he does not show any connection between the wrongful act of the defendant and the injury sustained. Reynolds v. Fiber Co., 73 N. H. 126, 128, 59 Atl. 615.

The question of proximate or remote cause is not involved. The fault complained of was not a cause in any degree, nor in the remotest sense, of Caher's subsequent acts. It was neither the cause nor the occasion for his walking to Stark. It was a wrong independent of what followed, and cannot be held to have any causal connection therewith. Edgerly v. Railroad, 67 N. H. 312, 36 Atl. 558; Brember v. Jones, 67 N. H. 374, 30 Atl. 411, 26 L. R. A. 408; McGill v. Company, 70 N. H. 125, 46 Atl. 684, 85 Am. St. Rep. 618; Stearns v. Railroad, 75 N. H. 71 Atl. 21. As the illegality of the act did not contribute to the injury, it is not to be treated as a cause thereof. Nutt v. Manchester, 58 N. H. 226; Wentworth v. Jefferson, 60 N. H. 158; Bresnehan v. Gove, 71 N. H. 236, 51 Atl. 916.

The fact that the conductor is liable to the fine imposed in behalf of the state for this violation of the statute (Pub. St. 1901, c. 160, § 9) does not show that the defendant is liable to the plaintiff for damage which followed, but was not caused by, such violation. "It must be shown that such act is a fault which has directly contributed to the loss or damage of which the party complains. It is not a question, as it has been made in some cases, whether the party is a trespasser, or has done some wrongful act, but whether he is guilty of a fault or of negligence in reference to the matter in question which has directly contributed to the injury." Norris v. Litchfield, 35 N. H. 271, 278, 69 Am. Dec. 546.

Exceptions sustained. Verdict and judgment for the defendant.

BINGHAM, J., dissented. The others con

curred.

(75 N. H. 113)

MCGREGOR et al. v. PUTNEY. (Supreme Court of New Hampshire. Hillsbor ough. Nov. 4, 1908.)

1. VENDOR AND PURCHASER (§ 54*)—EXECUTORY CONTRACTS-EFFECT ON TITLE.

A contract for the sale and purchase of real estate, which binds the vendor to convey on payment of the price, gives to the purchaser an equitable interest in the land, and the vendor holds the legal title charged with the equitable interest.

[Ed. Note.-For other cases, see Vendor and Purchaser, Cent. Dig. § 85; Dec. Dig. § 54.*]

2. VENDOR AND PURCHASER (§ 233*)—BONA FIDE PURCHASER-UNRECORDED CONVEYANCES.

In the absence of a statute making an unrecorded conveyance void after a certain time has elapsed, the rights of holders of unrecorded conveyances are determined by priority in taking the conveyances.

[Ed. Note.-For other cases, see Vendor and Purchaser, Cent. Dig. § 563; Dec. Dig. § 233.*] 3. VENDOR AND PURCHASER (§ 239*)—BONA FIDE PURCHASER-UNRECORDED CONVEYAN

CES.

A purchaser of real estate, under a contract binding the vendor to convey on payment of the price, sold, in violation of the contract, the timber on the land to a third person, and subsequently assigned his interest in the premises. It did not appear that the assignee recorded his assignment, or gave the third person notice of it. Held that the assignee, though ignorant of the unrecorded sale of the timber, could only recover for timber cut by the third person after actual or constructive notice of the assignment.

[Ed. Note.-For other cases, see Vendor and Purchaser, Cent. Dig. § 590; Dec. Dig. § 239.*] 4. VENDOR AND PURCHASER (§ 233*)-BONA FIDE PURCHASER-UNRECORDED CONVEYANCES.

Where there are two unrecorded conveyances, and the holder of the first continues to act in ignorance of the holder of the second, and their equities are equal, priority in time prevails.

[Ed. Note.-For other cases, see Vendor and Purchaser, Cent. Dig. § 563; Dec. Dig. § 233.*] 5. VENDOR AND PURCHASER (§ 218*)-BONA FIDE PURCHASER-UNRECORDED CONVEYANCES.

A third person, purchasing the timber on land from one having a contract for the purchase of the land and entitled to a conveyance thereof on payment of the price, is not liable as on a debt due to the owner, but his liability arises from his taking in good faith that which is security for the owner's claim, and, as between the third person and the purchaser in the contract, the former succeeds to the purchaser's right to redeem from the owner, which right is not defeated by the purchaser conveying his interest to another; and hence, as to acts done by the third person before notice of the conveyance of the purchaser's interest, a suit in the right of the owner is defeated by the third person's payment of the amount due on the contract.

[Ed. Note.-For other cases, see Vendor and Purchaser, Cent. Dig. § 456; Dec. Dig. § 218.*] 6. VENDOR AND PURCHASER (§ 218*)—BONA FIDE PURCHASER-UNRECORDED CONVEYAN

CES.

A purchaser of real estate, under a contract binding the vendor to convey on payment of the price, sold the timber on the land to a third person, and subsequently assigned his interest in the premises. The assignee paid the price, and obtained the conveyance. The assignee was ignorant of the outstanding unrecorded claim of the third person. The evidence did not show that the amount due to the vendor on the contract of sale was more than the value of the land after the removal by the third person of the timber. Held, that the payment of the price by the assignee of the contract could not be treated in equity as an assignment of the claim of the owner against the third person. [Ed. Note. For other cases, see Vendor and Purchaser, Cent. Dig. § 456; Dec. Dig. § 218.* Exceptions from Superior Court, Hillsborough County; Chamberlin, Judge.

Assumpsit by George W. Carroll, in his own right and as assignee of the claim of John C. McGregor, against Alfred H. Putney, to recover for the cutting of timber on certain land. There was a judgment of nonsuit, and plaintiffs except. Overruled.

The plaintiff's evidence tended to prove the following facts: In 1902 McGregor was the owner of the farm, and gave one Fletcher a bond to convey the same upon the payment of $2.800, the sum of $500 being at once paid on the purchase price. In 1903 Fletcher, for a consideration of $100, and in violation of the terms of the bond, sold standing timber on the farm to the defendant, and the defendant cut timber both before and after September, 1905. In March, 1905, the bond was recorded, and the next September Fletcher sold his interest to Carroll, who bought in ignorance of the defendant's unrecorded contract. In 1906 Carroll paid the balance due to McGregor, took a deed of the premises and an oral assignment of McGregor's cause of action against the defendant, and then brought this suit.

Wason & Moran, for plaintiffs. Thomas F. Clifford and Bertis A. Pease, for defendant.

PEASLEE, J. The contract to convey the farm upon the payment of the agreed price gave Fletcher an equitable interest in the land, and McGregor thereafter held the legal title charged with the equitable interest. Their relations were in many respects, like those of mortgagor and mortgagee. Bowen v. Lansing, 129 Mich. 117, 88 N. W. 384, 57 L. R. A. 643, 95 Am. St. Rep. 427, and authorities collected in note. When Carroll purchased Fletcher's interest, he took the recorded equitable claim to the estate as it then existed. Although he was ignorant of the outstanding unrecorded claim of the defendant to standing trees, he could only recover for the wood or timber the defendant cut after actual or constructive notice of Carroll's title. In the absence of a statute making an unrecorded conveyance void after a certain time has elapsed, when the question arises between two holders of unrecorded conveyances, their rights are determined by priority in taking their conveyances. Crouse v. Mitchell, 130 Mich. 347, 90 N. W. 32, 97 Am. St. Rep. 479. If the documents given by Fletcher to Putney and Carroll were entitled to record, Putney's must prevail because of its priority in time. If they were not entitled to record, the result is of course the same. The first purchaser takes title. There is no evidence that Carroll recorded his assignment from Fletcher, or gave Putney notice of it. Whether notice by record, or otherwise, would have been of any avail is not material to a decision of the present case. The notices given by McGregor do not