the suit was prematurely brought. They say the plaintiff was required not only to await the action of the finance committee of the lodge on this claim, but to exhaust the appeals from their action provided by the order before he was entitled to bring suit, and that, having failed to do so, he cannot maintain the action. The defendants rely upon the principle that recourse cannot be had to the courts when the laws of the association unequivocally provide a remedy which the parties have agreed to for the grievance complained of, and which has not been pursued and exhausted. Levy v. Order of the Iron Hall, 67 N. H. 593, 38 Atl. 18; Chamberlain v. Lincoln, 129 Mass. 70; Oliver v. Hopkins, 144 Mass. 175, 10 N. E. 776; Jeane v. Grand Lodge, 86 Me. 434, 30 Atl. 70; Wood v. Lodge, 20 R. I. 795, 38 Atl. 895; Ocean Castle Knight of Golden Eagle v. Smith, 58 N. J. Law, 545, 33 Atl. 849. In these cases the laws of the association, which the agreement of the parties made binding upon them, expressly provided an internal tribunal, which was to pass upon the liability of the society, at least in the first instance, and it was held that no civil action could be maintained until the method of redress thus provided by the parties themselves had been invoked and exhausted. But in the case at bar there was no law of the association which required that the plaintiff's claim should be submitted to the adjudication of the finance committee or to the determination of the lodge itself before a suit could be brought in the civil courts. On this ground there was therefore no error in refusing to grant the defendants' motion for a nonsuit.

There was, however, a provision of the laws of the association that a member could not claim weekly benefits while charges were pending against him. The charge that the son was fraudulently trying to collect a benefit upon his wife's death was pending at the time of his death. It had been once tried by a tribunal provided for that purpose by the laws of the association, and upon appeal had been remanded back for retrial. Until these charges were disposed of, there could be no resort to the civil courts to recover sick benefits by the plaintiff's son, if he were living. He had agreed that his right to a sick benefit should depend upon the fact that no charges were pending against him, that such charges should be heard and tried by the tribunals of the association provided for that purpose, and that no resort should be had to the courts until this remedy was exhausted. The plaintiff's rights in this respect were the same as those of his son. It does not appear that the defendants were unfairly exercising this right to have this matter heard by the tribunal of the society. There was no similar provision in the laws of the association relating to funeral benefits, and the fact that charges were pending against the son does not affect the plaintiff's right to recover that benefit. The plaintiff

cannot recover the sick benefit, but can the funeral benefit. Exceptions sustained.

PEASLEE and YOUNG, JJ., did not sit. The others concurred.

(70 N. H. 42)

FERNALD v. CITY OF DOVER. (Supreme Court of New Hampshire. Strafford. March 16, 1900.)

CITIES-CITY SOLICITOR-SALARY-FEES

ACTION.

Laws 1855, c. 1699, § 20, gives to defendant city power to provide for the appointment of all necessary officers not otherwise provided for, and to prescribe their duties. Section 17, cl. 18, authorizes defendant to prescribe the salary and fees of all city officers not otherwise provided for by law. In pursuance of its authority, defendant city created the office of city solicitor, which was not recognized by statute, and fixed the salary at $100 per year and fees. Under defendant's ordinances, there are no fees appertaining to the office. Held, that plaintiff could recover for his services as city solicitor only the salary of $100 per year.

Exceptions from Strafford county.

Assumpsit by Frank F. Fernald against the city of Dover to recover the plaintiff's salary as city solicitor for the year 1897. Trial by the court. Prior to January 6, 1897, the salary of the city solicitor was, by ordinance, a fixed sum of money; and in addition thereto he was accustomed to receive his fees as a justice of the peace for all complaints and warrants issued by him, returnable before the police court of the city of Dover, upon which the respondent was convicted and paid his costs into court. January 6, 1897, the city council passed the following ordinance: "Be it ordained by the city council of the city of Dover, that the Revised Ordinances of the City of Dover be so far amended as to fix the salary of the city solicitor at $100 per year, and fees." The plaintiff has already received his statutory fee of $1.50 for every complaint and warrant drawn by him, returnable before the police court of Dover, where costs have been collected by the city, and brings this action to recover in addition thereto all taxable costs, including complaint, warrant, entry, examination, mittimus, and copies, in every case returnable before the police court of Dover in which he drew the complaint and warrant during the year 1897, amounting to about $1,650. On these facts the court held that the plaintiff could not maintain this action, and the plaintiff excepted. Exceptions overruled.

Frank F. Fernald and John H. Albin, for plaintiff. Walter W. Scott, William F. Nason, and Dwight Hall, for defendants.

PARSONS, J. The office of city solicitor is not recognized by the statutes. Hence there are no fees by law appertaining thereto. The existence of the office in any city, and the emolument attached, depend upon

special provisions in the particular charter, or upon action by the city councils under power conferred by the charter, or by Pub. St. c. 50, § 2. We have found no reference to the office of city solicitor in the original act incorporating the city of Dover (Laws 1855, c. 1699), or in the numerous amendments thereof. By section 20 of the original act the city council have power "to provide for the appointments of all necessary officers not otherwise provided for, and prescribe their duties." By section 17, cl. 18, they are authorized to "prescribe the salary and fees of all city officers not otherwise provided for by law." It appears that the city council have by ordinance prescribed the duties of the city solicitor, and fixed his salary at $100 and fees. As no fees appertain to the office by statute, the plaintiff can recover fees for such services only as the city council have prescribed fees should be paid, and in such sums as they have determined appropriate. The ordinances have been made a part of the case, and from them it appears that it is the duty of the city solicitor to commence and prosecute before the police court any suit or complaint requested by the mayor, city marshal, or assistant marshal, for the violation of any ordinance of the city or law of the state. Ord. Dover, c. 6, § 2. Prior to the amendment of January 6, 1897, the ordinances provided, "The city solicitor shall receive for his services, and for all duties connected with his office, three hundred dollars per year." Id. c. 15, § 6. A careful examination of the printed volume of ordinances furnished us fails to disclose any fees prescribed for any services to be performed by the solicitor in connection with his office. Under the amended ordinance, the only remuneration of the office that has been fixed is the salary of $100. If it was understood that fees had been or would be affixed to certain duties which the solicitor might perform, and for which he would receive emolument by way of fees in addition to such salary as was voted, the failure to prescribe such fees leaves it impossible to determine for what services, and in what sums, fees were intended to be paid. The solicitor can recover only the sum actually prescribed by the city council. Their failure to act further upon the subject gives him no right of action for special payment for the performance of a particular portion of the duties of the office. The plaintiff, having accepted the office, is entitled to such compensation only as has been legally established. Whether the practice prior to the ordinance of January 6, 1897, by which the solicitor received from the city the police court fees for complaints and warrants drawn by him which were paid into the city treasury, is competent and sufficient evidence to establish that by the word "fees," in the ordinance, such sums were intended, is not in question; for that view has been assented to by the city, and the sums so received have been paid to the plaintiff. There is no other

evidence of what was intended by the word "fees." This evidence, if competent, has no tendency to establish that the word "fees" included sums not paid into the city, or statutory fees accruing to the police court for services rendered by the justice of the court. The statutory fees for complaint, warrant, entry, examination, mittimus, and copies are allowed to the justice of the police court issuing the process, or before whom the entry or examination is had. Pub. St. c. 287, § 2. Such fees received by the justice of the police court of Dover are the property of the city, and the justice is required to pay the sums so received to the city. Laws 1860, c. 2379, § 5. It is not found that the city has disposed of them by awarding them to the plaintiff. Exceptions overruled.

PIKE and YOUNG, JJ., did not sit. The others concurred.

(70 N. H. 284)

JONES v. WHITTEMORE. (Supreme Court of New Hampshire. Belknap. July 27, 1900.)

EMINENT DOMAIN MILLDAM RIGHT OF FLOWAGE - DISCLAIMER- ASSESSMENT OF DAMAGES-JURISDICTION-DISCLAIMER AFTER ANSWER-RECORD-ESTOPPEL.

1. Pub. St. c. 142, § 12, gives any person the right to erect and maintain a dam for a water mill. Section 13 authorizes a person whose land is overflowed by such dam to petition the supreme court for assessment of damages; and by section 14 the court is required to appoint a committee to hear the parties, view the premises, and make the assessment. Section 19 provides that these sections shall not apply to the right of any owner of a mill privilege, unless his right has been lost. Held, that a disclaimer by a mill owner of any rights of flowage in excess of his contractual rights under his deed ousted the committee of jurisdiction to assess damages against him; the statute only pertaining to damages wrought by the exercise of flowage rights thereby given.

2. Where, in the proceeding authorized by Pub. St. §§ 13-19, for the assessment of damages for the flowage of lands by a milldam, to be made by a committee appointed, on petition of the parties interested, by the supreme court in the county, the mill owner, after answering, but before the committee has made the assessment, moves to dismiss the proceeding on the ground that he claims no right of flowage under the statute, and therefore the committee is without jurisdiction, the proceeding should be dismissed, since the record thus made would as conclusively estop the owner from afterwards defending an action for damages for the assumption of rights under the statute as if the disclaimer had been made by answer.

Petition by Ada C. Jones, a landowner, under Pub. St. c. 142, §§ 12-19, against John Q. A. Whittemore for the assessment of the damages to her land by the use of the defendant's dam, situate on the outlet of Lake Waukewan, in Meredith. Case dismissed.

The case was heard by a committee. After a portion of the plaintiff's testimony had been introduced, the defendant moved that the bill be dismissed, on the ground that, as he did not ask to have the flowage rights under his deed extended, and did not wish or intend

sums.

Stone & Shannon and E. A. & C. B. Hibbard, for plaintiff. Bertram Blaisdell, Jewell, Owen & Veazey, and Jewett & Plummer, for defendant.

PARSONS, J. The defendant claims that no judgment can be rendered against him in this proceeding (1) because he does not wish or intend to exercise any flowage rights to which he has not a clear legal title; (2) because the mill act does not apply to navigable waters. The committee find, in substance, that the operation of the defendant's dam, gates, and flashboards during his ownership has resulted in flowing the plaintiff's land beyond the defendant's contractual or commonlaw right; that such operation is of public benefit and necessary, but that the same can be operated so as not to flow the plaintiff's land in excess of the defendant's legal right. The capacity of the dam to raise the water is not the measure of the right for which damages are to be assessed under the mill act, but damages are to be based upon the actual interference with and raising of the water by the proposed management of the dam and its appurtenances. The mill owner is not required to pay for a greater right than he takes. Town v. Faulkner, 56 N. H. 255. If the mill owner does not claim to exercise any flowage right under the mill act, he cannot be compelled to acquire or pay for a right which he does not desire to take. In such case there is no jurisdiction in proceedings under the act to determine the extent of the defendant's pre-existing legal right, or whether such right has been exceeded to the plaintiff's damage. This statutory proceeding provides for the assessment of damages when the mill owner exercises the flowage right given by the mill act. If the defendant's answer disclaims all right to flow the plaintiff's land under the authority of the mill act, there can be no assessment of damages upon a petition under the act. Such answer is a conclusive record that estops the defendant from claiming in an action for damages for past flowing, or at any time, that at the commencement of the proceedings he was exercising a flowage right under the mill act. Chapman v. Manufacturing Co., 67 N. H. 180, 38 Atl. 16. As the pleadings have not been transferred, it does not appear whether the claim now made was

of the hearing, however, the defendant moved to dismiss the bill on the ground that, as he did not ask to have the flowage rights under his deed extended, and did not wish or intend to exercise any flowage rights to which he did not have a clear title, the referees had no jurisdiction in this case. No reason is perceived why the dismissal of the bill upon this ground, upon the defendant's request, stated in the report of the committee and in the order of dismissal, would not furnish a record as conclusive as an estoppel against the defendant in any subsequent proceeding as a formal disclaimer in the answer. If the ground should have been taken in the answer, the question is whether leave should now be given to amend the answer. In Pollard v. Moore, 51 N. H. 188, it was held that a mill owner, who had filed a petition under the act, and been heard before a committee, could not, after the committee had reported, as of right become nonsuit. If in the present case the defendant had not objected to the jurisdiction of the referees until after the assessment of damages, and then because of his dissatisfaction with the amount awarded, it would clearly be too late to make the claim. In Town v. Faulkner, 56 N. H. 255, 260, it was said, "It might happen that the mill owner at the hearing would desire to stipulate for lowering his dam, or in some other way provide that less land should be flowed or damaged by maintaining it;" implying that at the hearing the mill owner might change his specification of the flowage right he proposed to take. While he cannot lie by and take the chances of a favorable award until after the damages are assessed, there is no reason why he should be compelled to purchase flowage rights he does not want, because of a mistake in pleading, or because, possibly, of a mistake as to his own rights and needs, discovered in the course of the hearing. Upon the defendant's filing an amended answer, disclaiming all flowage right under Pub. St. c. 142, §§ 12-19, the bill will be dismissed.

As the defendant proceeded to a trial of the facts, instead of making an explicit disclaimer in his answer, under which there would have been no occasion for the reference to a committee, such order as to costs will be made in dismissing the bill as Justice requires. Since the necessary result of the defendant's disclaimer is the dismissal of the petition for want of jurisdiction, the other questions raised are not material. As the dismissal of the petition upon this ground conclusively establishes against the defendant his nonexercise of any statutory flowage right, the question whether under the law and the facts he has any such right, should he desire to exercise it, is not before us. Whether the right exists is not properly considered or determined until such right is claimed and in issue. Case discharged. All concurred.

Plaintiff testified that he went to defendant's freight yard to look for coal cars, intending to apply for a job of shoveling, and was shot by defendant's servant while running away after the latter had attempted to seize him as a trespasser; but there was no evidence that the shooting resulted from defendant's fault, or was directed by it or done by its authority, or that the act complained of was any part of the work of the servant, who was employed to clean and care for the lamps in the yard, and which was the sole capacity in which he represented defendant. Held, that defendant was not liable for the injury, since the servant's act, whether willful or negligent, was not within the scope of his employment.

Exceptions from Hillsboro county.

Action by Hugh Turley against the Boston & Maine Railroad. A nonsuit was ordered, and plaintiff excepted. Exceptions overruled.

Case for injuries received by being shot while in the defendants' freight yard in Manchester by Thomas J. Saxton, an employé of the defendants. The plaintiff testified that he went to the freight yard on January 15, 1899, as he had done frequently, to see if there were cars of coal consigned to local dealers, so that he might apply for a job of shoveling. While in the yard he heard shouting, and saw men running. Saxton walked up to him, seized him, asked him where he was going, and started to draw a black-jack, whereupon the plaintiff broke away and ran about 100 feet, when he was shot in the back. He made no assault upon Saxton. Saxton testified that: He was employed by the defendants to clean and care for the lamps in the freight yard. Prior to the day of the shooting, he had driven from the yard certain persons, denominated the "Scut Beer Gang," whose habit it was to loiter there, and who had fought with him and made threats against him. He reported these affrays to the defendants' agent, and was told to look out for himself. On January 15, 1899, Saxton saw members of the beer gang (the plaintiff being one of the party) going towards the freight yard. He followed them, and found the plaintiff on the watch. After

an unsuccessful attempt to seize the plaintiff, Saxton ran down the yard, and, seeing others gathering, apparently to make a fight, fired a revolver at the end of a freight car for the purpose of frightening the crowd and protecting himself. He did not think the bullet could have hit the plaintiff. Saxton was not an officer or a watchman. He had no orders to drive the beer gang from the freight yard, and was required only to report their presence there; but, whenever he saw them going to the yard, it was his practice to follow them and order them off the defendants' premises. At the close of the

plaintiff's evidence a nonsuit was ordered, subject to his exception.

Sullivan & Broderick, for plaintiff. Oliver E. Branch and Cyrus H. Little, for defendants.

PARSONS, J. As there was no evidence tending to show that the shooting of the plaintiff by Saxton resulted from any fault of the defendants, was directed by them or done by their authority, or was any part of Saxton's work of cleaning and caring for the lamps in the yard, for which he was employed, and which was the sole capacity in which he represented the defendants, it cannot be found that the act of Saxton complained of, whether willful or negligent, was the defendants' act, or within the scope of Saxton's employment by them. McGill v. Granite Co. (N. H.) 46 Atl. 684; Rowell v. Railroad Co., 68 N. H. 358, 44 Atl. 488; Andrews v. Green, 62 N. H. 436; Wilson v. Peverly, 2 N. H. 548. Exceptions overruled. Judgment for the defendants.

PARENT v. NASHUA MFG. CO. (Supreme Court of New Hampshire. Hillsboro. March 16, 1900.)

MASTER AND SERVANT-INJURIES TO SERVANT-ASSUMPTION OF RISK-SCOPE OF EMPLOYMENT-OPINION EVIDENCE.

1. Plaintiff, who was employed by defendant as a weaver, had nothing to do with the belts or machinery, which were under the care of a loom fixer. While the latter was adjusting a belt. he beckoned plaintiff to assist him, and, while so engaged, plaintiff was caught in the belt and injured. There was no defect in the machinery or belting, and there was no evidence that the loom fixer had any authority to permit or require plaintiff to assist him. Held, that plaintiff assumed the risk, and could not recover for the injury.

2. Opinion evidence of expert loom fixers as to the cause of the accident by which plaintiff, a weaver, was injured while assisting the loom fixer in adjusting a belt, was properly excluded, where the facts on which their opinions were based were not proved.

Exceptions from Hillsboro county.

Action by Amedee Parent against the Nashua Manufacturing Company. A verdict was ordered for defendants, and plaintiff excepted. Exceptions overruled.

Case for personal injuries. The plaintiff was employed by the defendants as a weaver. He had nothing to do with the belts or machinery, which were under the care of a loom fixer. On July 26, 1895, the loom fixer, who was engaged in adjusting a belt, beckoned the plaintiff to come to him, and he did so. While the loom fixer held the belt in place upon an upper pulley, the plaintiff placed his foot against it, and attempted to kick or push it upon a lower pulley. While so engaged, the plaintiff was caught by the belt, and carried over the shafting, receiving the injuries com

plained of. There was no evidence as to the cause of the belt catching him. The plaintiff offered the testimony of expert loom fixers to show that, with belts and pulleys arranged like those in question, the drawing up of the belt by which the plaintiff was caught must have been caused by contact with another belt (running to a loom in the room above) when the latter was in a certain position, which would be when the upper loom was in motion. There was no evidence as to the poIsition of the second belt at the time of the accident, or whether the loom in the room above was running. The evidence was excluded, and the plaintiff excepted. A verdict was ordered for the defendants, and the plaintiff excepted.

Timothy J. Howard and Taggart & Bingham, for plaintiff. George B. French and Burnham, Brown & Warren, for defendants.

PARSONS, J. As there was no defect or fault in the machinery or belting, the plaintiff's injury must be attributed to his own carelessness, or to the risk naturally attendant upon the work which he undertook. This work was beyond the scope of the duty which he was employed to perform, and there is no evidence that the loom fixer had any authority to permit or require him to perform it. Voluntarily engaging in work for which he was not hired, without request from the master, he assumed the risk attendant thereon. McGill v. Granite Co. (N. H.) 46 Atl. 684.

The evidence of the loom fixers as to their opinion of the cause of the accident was properly excluded. The facts upon which the opinions were based not having been proved, the opinions, if admissible at all, were immaterial. Exceptions overruled.

NUISANCE-INTOXICATING LIQUORS-KEEPING

FOR SALE-INFORMATION-INJUNCTION. Pab. St. c. 205, § 4, makes a building used for the illegal sale and keeping for sale of intoxicating liquors a common nuisance. Information was filed against defendant, December 28, 1899, charging him with maintaining such a nuisance. The building had been used for such illegal purposes on and prior to October 19, 1899, but was not so used at the time of the filing of the information, and it did not appear that defendant threatened or intended to use the building complained of in the future for such illegal purpose. Held, that an injunction would not issue, since the nuisance had been abated by the parties themselves, and the cause of action had ceased to exist.

Information against Amile Strickford for illegal use of a building in keeping for sale intoxicating liquors. Information dismissed.

Information by the county solicitor, filed December 28, 1899, alleging that the defend

ant is the owner and occupant of a certain building in Hooksett, and that at the time of the filing of the information, and during the six months next preceding, the building was used for the illegal sale and keeping for sale of spirituous and malt liquors, wine, and cider, and was a common nuisance, and praying for an injunction to abate the same. The building was used for such illegal purposes on October 19, 1899, and prior thereto, but was not so used at the time of the filing of the information, or between that time and October 19th.

George M. Fletcher, Sol., for the State. Almon F. Burbank, for defendant.

PARSONS, J. Under the statute, it is the illegal use which makes a building used for the illegal sale and keeping for sale of spirituous and malt liquors a common nuisance. Pub. St. c. 205, § 4; State v. Marston, 64 N. H. 603, 604, 15 Atl. 222; State v. Saunders, 66 N. H. 39, 84, 25 Atl. 588. A nuisance cannot be abated, with or without legal process, if it has been discontinued, and has not been renewed when proceedings are begun against it. State v. Noyes, 30 N. H. 279; State v. Saunders, supra; Rex v. Justices of West Riding, 7 Term R. 467; Rex v. Stead, 8 Term R. 142. Section 2, c. 81, Laws 1899, does not change the law, or authorize the maintenance of a suit, and the rendition of a judgment upon a cause of action that ceased to exist before the suit was brought. State v. Saunders, supra. The right to abatement having been established by proof of the illegal use which constitutes the nuisance, the nuisance is abated by an injunction against the illegal use. Since the proceeding is not in rem (State v. Marston, 64 N. H. 603, 15 Atl. 222), a further question may arise, viz. against what persons the injunction should run to effect such abatement (State v. Harrington, 69 N. H. 496, 45 Atl. 404; State v. Harrington, 69 N. H. 670, 45 Atl. 1090). It will not be issued against persons who are not parties, or who have not had notice and an opportunity to be heard. State v. Marston, supra. The second section of the act of 1899 bears upon this question: "The owner of and all persons interested in the building or premises in which said common nuisance is kept and maintained, as well as the keeper thereof, may be made parties to the proceedings, and all such owners, keepers, or parties interested, who may be found to have knowingly assented to the keeping or maintaining of such nuisance upon the premises at any time within six months prior to the commencement of such legal proceedings, and their servants, agents, lessees, and tenants shall be perpetually enjoined," etc. Laws 1899, c. 81, § 2.

Upon the question whether, for the effectual abatement of the nuisance, the injunction should or should not run against all persons interested in the building, evidence of their knowledge and assent to such illegal