5. TRIAL (344*)—IMPEACHMENT OF VERDICT -AFFIDAVITS.

The affidavits of jurors to impeach their verdict, and of persons who heard the jurors make statements tending to the same effect, were properly excluded.

[Ed. Note. For other cases, see Trial, Cent. Dig. § 813; Dec. Dig. § 344.*]

6. NEW TRIAL (§ 140*)—AFFIDAVITS MISCONDUCT OF JUror.

Affidavits which merely tended to prove misconduct of a juror, and not that such misconduct produced the verdict, were properly excluded as irrelevant.

[Ed. Note. For other cases, see New Trial, Cent. Dig. 284-289, 302, 306; Dec. Dig. § 140.*]

Walker, J., dissenting.

Transferred from Superior Court, Belknap County; Plummer, Judge.

Debt by Frank E. Blodgett against William R. Park. Verdict was for plaintiff, and case was transferred from the superior court on defendant's exceptions. Exceptions sustained in part, and overruled in part, and case discharged.

and L. was permitted to indicate the place on the plan. The question whether L.'s testimony offends against the hearsay rule depends on the purpose for which it was admitted. If it was to prove that the witness met the surveyor at that place, because he told that he did, it was hearsay; but, if it was introduced merely to enable the jury to understand where the witness testified he met the surveyor, it was not hearsay. In other words, it was not hearsay if it was introduced to enable the jury to understand and apply the witness' testimony; and the

mere fact that it could be used for an illegal purpose did not render it inadmissible as a matter of law.

[3] The testimony of Lane that the surveyor was familiar with the line, and that the bounds between which he ran the line were well-known monuments, tended to contradict the defendant's testimony that the surveyor "could not seem to find" the line, and was properly admitted for that purpose.

Debt to recover the forfeiture given by [4] The statute which gives this action section 1, c. 244, Public Statutes, for the purports to limit the amount of the recovwillful removal of timber trees. Trial by ery; consequently the test to determine jury and verdict for the plaintiff. Trans- whether the plaintiff is entitled to interest ferred from the superior court on the de- from the time the trees were cut until the fendant's exceptions to a statement by the verdict is to inquire whether the Legislaplaintiff's counsel that "it costs money to ture intended him to have it. prepare and try a case such as we have provides, in substance, that if the trespass been trying here for the past week," to the is willful the trespasser "shall forfeit to the admission of certain evidence, to the allow-person injured, for every cut, * *

ance of interest on the forfeiture from the

time the trees were cut to the time of the trial, and to the exclusion of the affidavits of jurors and others offered for the purpose of impeaching the verdict.

Albin & Sawyer, of Concord, and Owen & Veazey and Stephen S. Jewett, all of Laconia, for plaintiff. Foster & Lake and Martin & Howe, all of Concord, for defendant.

YOUNG, J. [1] It is common knowledge that litigation is expensive to the parties and to the public-so expensive, in fact, that the court is accustomed to advise jurors that they should agree, if possible, and stop the expense by ending the litigation. Ahearn v. Mann, 60 N. H. 472. It was competent, therefore, for the plaintiff's counsel to urge the jurors to agree on a verdict for that reason; and, from all that appears, that was what he was doing when he made the remark excepted to. In other words, there is nothing to show that he made it, as the defendant contends, to induce the jury to give large damages.

This section

tree so

five times the value thereof."

P. S. c. 244, § 1. If this language is given its ordinary meaning, the forfeiture does not bear interest until after the verdict;

for the Legislature says that the injured person may recover five times the value of the trees so cut, and not five times their value, with interest from the time they are cut. If it had intended to give him interest as well as five times the value of the trees, it is probable it would have used apt words to express its intention; and, as it failed to use them, it must be held that the injured person is not entitled to interest. Although this is a new question in this jurisdiction, it has been considered by the courts of several states in construing similar statutes, and all, or all but one, of the courts which have considered it, hold that the injured person is not entitled to interest. Blair v. Railroad, 109 Iowa, 369, 80 N. W. 673; 16 Am. & Eng. Ehc. Law, 996, 997; 22 Cyc. 1500, 1502.

[5] The affidavits excluded consisted (1) of those of jurors tending to impeach their verdict; (2) of persons who had heard jurors make statements tending to impeach their verdict; and (3) of Chapman and his daughter as to the conduct of Juror Gilman during the trial. The principle which controls the admissibility of affidavits of the first class is equally applicable to those of the second class; for "if the testimony of

[2] The same question of law is raised by the defendant's first and second exceptions to evidence, and for that reason one only will be considered. A witness who was unfamiliar with the plan in use at the trial testified that he pointed out the place where he met the defendant's surveyor to one L.,

a juror is not admissible to impeach the verdict, evidence of his declarations cannot be received for that purpose." Palmer v. State, 65 N. H. 221, 222, 19 Atl. 1003. The affidavits of jurors are inadmissible for that purpose (Knight v. Epsom, 62 N. H. 356; Hearn v. Railroad, 67 N. H. 320, 29 Atl. BOSTON & M. R. R. v. CITY OF FRANK970); but the reason they are excluded is because experience has shown that they are more likely to prevent than to promote the discovery of the truth (Tyler v. Stevens, 41. TAXATION (§ 284*)-PLACE OF TAXATION

in 1844, when it read: “All real estate own- | to emphasize this conclusion that the only ed by any railroad corporation, except such land that is exempt from local taxation, beas is used for their road and other ordinary cause it belongs to a railroad, is that which and usual purposes of the corporation, and is commonly known as the railroad's "road," all real estate owned or occupied by such or the land it actually uses in the transporcorporation, for their road, for which they tation of freight and passengers. Section 4, have not expended any part of their capital c. 49, General Statutes, provides: "The real stock, in such manner as that the several | estate of railroads, not used for the ordinary towns through which such road pass receive and usual purposes in operating the roads, one-fourth of one per cent., according to the provisions of chapter 39 of the Revised Statutes, shall be appraised and taxed in the several towns where the same may be loeated, in the same way as is by law provided for appraising and taxing real estate." Laws 1844, c. 141, § 1.

On

the custom of giving the tax on real estate | protection as other property in Franklin. to the town which bears the burden of pro- The city must educate the children of the tecting the property and those who occupy men employed to operate it and care for it tends to the conclusion that "road" is those who are unable to care for themselves. used in this connection as synonymous with Improvements which increase the value of right of way, yards, and stations. The other property in that vicinity increase the court would not be justified in finding an value of this plant. The fact that the plainintention to abandon that custom from words tiff owns it and uses it to develop power to which, to say the least, do not require such operate a street railway in a distant city a construction. If "road," as used in sec- does not add anything to its value, or to tion 1, c. 64, Public Statutes, is construed the value of other property in the city. to mean the land used for right of way, the contrary, the fact that the plaintiff yards, and stations, a very little considera- transmits the developed energy to Concord tion will show that giving one-fourth of the decreases the value of all the land in that tax assessed on a railroad's road, rolling vicinity, including so much of the land in stock, and equipment to the town through question as is not needed in the actual operawhich the road passes, and the balance to tion of the plant. In other words, none of the state and the towns in which its owners the reasons which make it equitable to tax live, is consistent with giving the railroad's a railroad's road as a whole and to distax to the municipalities which protect the tribute a part of the tax to the towns in railroad's property and care for those who which the owners live obtains in this case; occupy it. and it does not come fairly within the terms of section 1, c. 64, Public Statutes, unless by "road" is intended the corporation or all its property. As has already appeared, the context shows that that was not the sense in which "road" was used in this connection; and to give it that construction is to infer, from language equally capable of the opposite construction, that the Legislature intended to abandon a policy which has prevailed in this state almost from the time the first settlements were made. To hold that this plant is a part of the plaintiff's road, or that it is land used in the plaintiff's ordinary business, is to hold that the Legislature intended to take the taxes assessed on this property from the city which pays for the improvements and protection which constitute a substantial part of its value, and to give them to the state and the towns in which the stockholders of the Concord & Montreal Railroad live, without imposing on those towns the duty of doing anything to protect the plant or the people it brings to Franklin; that is, to hold that the Legislature intended this plant should be taxed as a part of the Concord & Montreal Railroad is to hold that it intended to impose upon Franklin the duty of caring for the plant, and to give the tax assessed on it to the towns in which the Concord & Montreal Railroad's stockholders live. That that was its intention is, to say the least, very doubtful.

Although it costs a very large sum of money to build a railroad, the parts of the road in the different towns through which it passes, in and of themselves, are of little value; for the structures which make the land valuable for the purposes for which it is used often make it nearly valueless for any other purpose. Fills, cuts, culverts, and rails need little in the way of local protection and receive little or no benefit from money spent for local improvements. For example: New highways that cross a railroad usually increase the value of other property at the expense of the railroad. In short, railroads increase the value of all the property in the towns through which they pass and, in so far as their roads are concerned, need but little in the way of local protection; while local improvements depreciate the value of their property. Since this is so, giving the towns through which a railroad passes one-fourth of the taxes assessed on its road, rolling stock, and equip ment is in accord with the custom of giving the municipalities that protect the property the taxes assessed on it; for the state is the taxing district. There is no more reason, therefore, for giving all the tax assessed on a railroad to the towns through which its road passes than there would be for giving any one of them all the taxes assessed on its rolling stock and equipment, or on the bonds issued to raise the money to build it. Any one of these things would be merely an arbitrary exercise of legislative power. As has already appeared, the state, and not the town, is the taxing district, in so far as a railroad is concerned. Consequently the tax assessed on it should go, in part at least, to the state, or to the different towns in the state in which its owners live.

Although this is true of a railroad's road, it is in no sense true of the plaintiff's power

As has already appeared, the land the statute exempts from local taxation is that used in the railroad's ordinary business. If that term is given its usual meaning, the only land that is exempt for that reason is that used in the transportation business; for a railroad is a common carrier, and carrying is a carrier's ordinary or usual business. The land in question is not used in the carrying business, but to develop power to en

ness. In other words, this land is not used | rolling stock and other equipment; for it in the plaintiff's ordinary business, except as is just as impossible to operate a steam land used to grow timber for cars and cross- road without coal, wood, or oil, as it is to ties is so used. If therefore, this land is operate the plaintiff's street railway withexempt from local taxation for that reason, out electrical energy. The same is true as or if it is exempt because it is customary to rolling stock and equipment. If, therefor railroads to own and operate such plants fore, this plant is used for the usual and when that is a convenient or economical ordinary purposes in operating the plaintiff's thing to do, then any land a railroad uses street railway, or if it is a part of the for growing timber is exempt from such tax- plaintiff's road, because it is impossible to ation; for timber is as essential to the op- operate its street railway without electrical eration of a railroad as power, and the energy, then any land a railroad uses in its growing of timber is a business in which business-whether it is used to grow timber, it is customary for railroads to engage. If manufacture cars, repair engines, or as tenthis tax had been assessed on a wood lot, no ements for its employés-is so used; for men one would think of the lot as a part of are essential to operating the road, and they the plaintiff's "road," or as used in its ordi- must be housed. In fact, every single thing nary business, within the meaning of section a railroad uses, from a match to a locomo6, c. 55, or of section 1, c. 64, Public Stat- tive, is a thing without which it could not utes, no matter how the timber might be conveniently operate its road. Consequently, used. if a plant used to develop power is a part of the road, because the road cannot be operated without power, then any land used to grow or manufacture any of the things with

part of the road. If the Legislature had intended to exempt all land a railroad uses for any of these purposes, it is probable that it would have used apt words to express its intention. If it had intended to take the taxes assessed on property used as this is from the towns which are compelled to protect it, and to give them to the state and the towns in which the owners live, it would have used words that would not have left its intention in doubt; for it must have known that such a proceeding had not been heard of in this state for more than 100 years. The Legislature, however, instead of enacting that all the real estate a railroad uses in its business shall be exempt from local taxation, provided that all its real estate, not used in its ordinary business, shall be subject to such taxation; and it could not have thought of land that a railroad uses in a business in which it could not legally engage without special legislation as land used in its ordinary business, or as land "used for the ordinary and usual purposes in operating" the road.

[2] If this plant is not subject to local taxation, it must be because of chapter 195, Laws of 1903, which authorizes the Concord & Montreal Railroad to own and operate pow-out which the road cannot be operated is a er plants. Section 1 permits that railroad to "acquire by purchase and develop such property as may be necessary or convenient to produce electrical energy," for the "operation of any portion of its main or branch lines." It will not be necessary to construe this statute; for, if it authorizes the plaintiff to engage in business in Franklin, it does not in terms exempt the property the plaintiff acquires under its provisions from local taxation. Since the statute which authorizes the plaintiff to acquire this property does not exempt it from local taxation, it is probable that the Legislature intended it should be taxed in Franklin. When the Legislature authorizes a corporation to engage in business, it is fair to assume, in the absence of all evidence that that was not its intention, that it intended to give the corporation the same rights and impose on it the same burdens that it gives to and imposes on others engaged in that business. Mersey Dock v. Gibbs, L. R. 1 H. L. 93, 103. The fact that this act permits the Concord & Montreal Railroad to either purchase such plants, or to become a stockholder in them (Laws 1903, c. 195, § 1), tends to emphasize this conclusion. The plaintiff, however, contends that this presumption does not obtain, because it is necessary for it to use electri- (Supreme Court of New Hampshire. Merrical energy to operate its cars; hence the Legislature must have intended that such a plant should be considered as a part of 1. SALES (§ 350*)-RECOVERY OF PRICE-AC

the road.

As has already appeared, this reasoning, so far as it rests on the proposition that the plaintiff's road cannot be operated without electricity, applies with equal force to coal and iron mines, oil wells, and land used to grow timber and to manufacture and repair

Case discharged. All concurred.

BATES-STREET SHIRT CO. v. PLACE.

mack. June 28, 1912.)

CRUAL OF CAUSE.

Where goods were sold on a certain term of credit after shipment, the seller could not bring suit for their price until expiration of goods which the buyer accepted or was bound the agreed term of credit after a shipment of by his contract to accept.

[Ed. Note. For other cases. see Sales, Cent. Dig. §§ 988-992; Dec. Dig. § 350.*]