logically tended to show, not only that Davis looked up and down the track to ascertain whether trains were approaching, but that he saw the approaching train, "and knowingly and deliberately drove in front of it." This claim brings us to the consideration of the question raised by the denial of the motion for a verdict for the defendants. The .question has been argued solely upon the ground that the accident was caused by the want of due care on the part of the deceased. The plaintiff's evidence tended to show that the train left Plymouth from 10 to 20 minutes late, and at the time of the collision was running at the rate of 40 to 50 miles an hour; that the crossing was visible from the engine at a distance of one-half mile or more; that for the distance of 165 feet before reaching the crossing an approaching train could have been seen by a highway traveler for the distance of 600 feet on the track, except that upon the highway, between 67 and 40 feet from the crossing, the train was not visible, by reason of a knoll, until it was within about 300 feet of the crossing; that the deceased was familiar with the crossing; that his horses were kind, and not afraid of the cars, were walking at the time of the collision and for 10 or 15 rods before reaching the crossing; that in going over the crossing on prior occasions the deceased was uniformly cautious, and careful to look for trains. The evidence was all one way that the deceased was traveling with a suitable team, and approached the crossing as a careful and prudent person would. There was competent evidence, as it is conceded, tending to show that he looked for the coming of any train that might be approaching the crossing. If If he looked, it is certain he must have seen the train within the distance of about 600 feet. The single question, then, is whether the evidence conclusively shows that the attempt to cross before a train within that distance was so imprudent and reckless that no prudent person would have attempted it; or whether there was a question for the jury to determine from the evidence, viz. whether the deceased exercised proper care and caution. "There is no fixed standard in the law by which a court is enabled to arbitrarily say in every case what conduct shall be considered reasonable and prudent and what shall constitute ordinary care under any and all circumstances. * * When a given state of facts is such that reasonable men may fairly differ upon the question as to whether there was negligence or not, the determination of the matter is for the jury. It is only when the facts are such that reasonable men must draw the same conclusion from them that the question of negligence is ever considered one of law for the court." Railway Co. v. Ives, 144 U. S. 408, 417, 12 Sup. Ct. 679. How near the train was to the deceased when he discovered it, and whether he saw it, as the evidence tends to show he did.does not appear. It may have been 600 feet

away, so far that persons of ordinary prudence would not hesitate to attempt to cross. Upon that question the plaintiff was entitled to the decision of the jury. A case is not withdrawn from them unless it conclusively follows, as matter of law, that no recovery can be had upon any view which can properly be taken of the facts which the evidence tends to establish. Railway Co. v. Cox, 145 U. S. 593, 606, 12 Sup. Ct. 905; Gardner v. Railroad Co., 150 U. S. 349, 361, 14 Sup. Ct. 140; Page v. Parker, 43 N. H. 363, 366. The train left Plymouth 10 to 20 minutes late, and at the time of the collision was running at the rate of 40 to 50 miles an hour. The speed permitted by the defendants' rules in passing stations was 15 miles an hour. The defendants' evidence tended to prove that nei-. ther the engineer nor fireman saw the hayrack until the moment it was struck by the engine. In Nutter v. Boston & M. R. R., 60 N. H. 483, 485, it was said that the fact that the defendants' train was running at an unlawful rate of speed "might affect the question of the plaintiff's care. It may have been reasonable for the plaintiff to act upon the belief that the defendants were aware of the speed law, and would obey it.

The

plaintiff's belief in the defendants' knowledge and presumed obedience of the speed law may have been a sufficient excuse for his want of vigilance in not observing the approaching train, and whether or not it was a sufficient excuse is a question of fact which was properly submitted to the jury." The crossing of a crowded thoroughfare by a pedestrian is attended with more or less danger from passing teams, yet the act is one which persons of ordinary prudence constantly attempt. A traveler is not restricted to one sidewalk when an opportunity occurs for crossing which a person of ordinary prudence would improve, using due care to avoid injury. If injured in the attempt through the negligence of another, he may maintain his action therefor, provided the attempt was one which a person of ordinary care would have made, and due care was used in making it. The result may show misjudgment as to the danger of crossing, but in such case one is only required to judge of danger as it appeared before, and not after, the attempt. The train was running at a rate of speed three times as great as that allowed by the defendants' rules. It must be presumed that the rules were made to be enforced, and that they were generally obeyed. Although the deceased may not have known of the existence of the rule, yet he was familiar with the crossing, frequently traveled over it, and might reasonably act on the belief that the train would be run at the usual speed in passing the station. There was at least fair room for argument that, if the rule had been obeyed, he would have had sufficient time for crossing without injury or unreasonable risk, and that it would not have been an imprudent act. The rules were competent evidence. Ly

man v. Railroad, supra; State v. Manchester & L. R. R., supra; Nutter v. Boston & M. R. R., supra. Davis v. Manchester, 62 N. H. 422, is not applicable.

It was left to the jury to determine whether the speed of the train was reasonable or unreasonable, and they were instructed, among other things, "that the question was whether a person of average prudence, placed in the situation of the defendants, would have run the train at such speed." To this instruction the defendants excepted. The defendants, in running their trains, being bound to use ordinary care to avoid injury to highway travelers,—that is, as high a degree of care as persons of average prudence would observe,-it is obvious that the speed of the train over the crossing was an important element for consideration in determining whether ordinary care was observed. The higher the speed, the greater the danger of collision with a highway traveler. It was, therefore, a proper question for the jury whether persons of ordinary care or prudence would, in view of the dangers to be incurred and accidents to be avoided at the crossing, have run a train at a speed of 40 to 50 miles an hour.

The jury were also instructed that the deceased was bound to exercise ordinary care, -such care as a person of average prudence would exercise under like circumstances; and if a person of average prudence, put exactly in the place he was, possessed of the same knowledge and means of knowledge of the danger and means of avoiding it, would or might have done as he did, he was without fault. To the last clause the defendants excepted. Ordinary care requires that a person should act not only in view of facts of which he has actual knowledge, but in view of facts which he may learn in the exercise of ordinary diligence; and this is what was meant by the words "means of knowledge." Ordinary care being that degree of care required by the dangers reasonably to be apprehended, there is no ground for contending that the instruction meant that the deceased was required to exercise any less degree of care than what persons of average prudence would have used under the same circumstances; that is, in his situation. The defendants claim that the use of the word "might" rendered the instructions erroneous. It is the same, in effect, whether the jury were instructed that the degree of care required of Davis was what a person of average prudence would use, or what such a person might use, under the same circumstances. The standard of care is that of a person of average prudence. If the deceased used the care of such person under the same or similar circumstances, that was all he was required to do; and it is not believed that the jury could have understood that the degree of care required to be used was lowered by the use of the word "might," in connection with the word "would." The defendants ex

cepted to the refusal to give the instructions requested. The fact that the deceased, before crossing, did not look or listen for an approaching train (if he did not), would not be conclusive, as matter of law, of want of due care. Nutter v. Railroad, supra; State v. Manchester & L. R. R., supra; Huntress v. Railroad, 66 N. H. 185, 34 Atl. 154; Lyman v. Railroad, supra, and authorities cited. The fact would be important evidence to be considered by the jury on the question of contributory negligence, but the conduct of the deceased is not to be judged by that fact alone. He was bound to look and listen as much, and as long and as often, as a person of average prudence in his situation would have looked or listened, but no more, and not otherwise; and it was for the jury to say, as matter of fact, in view of all the evidence on that part of the case, whether he acted as persons of average prudence would have done under the same circumstances.

It cannot be said that the remaining requests were not properly refused. Other instructions were given besides those excepted to; and, no exceptions having been taken to them, it must be assumed they were correct, and such as the case called for. It may be assumed that the dangers of a railway grade crossing, and the mutual duties and rights of the parties, were called to the attention of the jury with pertinent comments. It is not the duty of the presiding justice to give instructions requested, however correct they may be as legal propositions, when their effect would be to give undue prominence to one side of the case. If the requests refused were intended as a full statement of the law of the case, they fell far short of it. They omitted entirely any reference to the duty owed by the defendants to the deceased. In a general way, the instructions requested were included in those given upon the subject of contributory negligence. It must necessarily be left to the presiding justice to decide how far it would be useful to accompany a statement of legal propositions with observations upon the facts of the case. Exceptions overruled.

CARPENTER, CHASE, and WALLACE, JJ., did not sit. The others concurred.

BENTON et al. v. HOPKINS et al. (Supreme Court of New Hampshire. Coos. March 15, 1895.)

NOTES - ACTION AGAINST INDORSERS - WITNESSES.

1. Action by the indorsee, on a note payable to M. H., and indorsed: "M. H. J. H." "Waiving demand and notice. M. H. J. H.,”. can be maintained against both indorsers, it not appearing that they are not jointly liable.

2. Plaintiffs in an action by administrators of the indorsee of a note against the indorsers not having elected to testify, defendants are prohibited by Pub. St. c. 224, § 16, from testifying to any facts occurring in the lifetime of deceased.

Action by Benjamin Benton and another, administrators, against John M. Hopkins and another. Case discharged.

Assumpsit upon a promissory note payable to the order of M. V. Hopkins, and bearing the following indorsements: "M. V. Hopkins. J. M. Hopkins." "Waiving demand and notice. M. V. Hopkins. J. M. Hopkins." The plaintiffs are administrators of the estate of Jacob Benton, indorsee of the note. At a hearing before a referee, the defendants moved that J. M. Hopkins be discharged, on the ground that successive indorsers cannot be joined as defendants, offered his evidence in regard to the note, and excepted to a denial of the motion and the exclusion of the evidence. The plaintiffs did not elect to testify.

Drew, Jordan & Buckley, for plaintiffs. Ladd & Fletcher, for defendants.

Where persons subscribe for the stock of a corporation on the agreement that they shall be employed by the corporation, and pay for the stock by a certain per cent. of their wages, till their subscriptions are paid, and the directors furnish the entire capital, and have the entire stock issued to them as security, they to transfer it to the subscribers when their subscriptions are paid, subscribers cannot, on the corporation becoming insolvent before the shares are fully paid for, recover of the corporation the amount of wages retained on account of subscriptions, they having made no demand for the stock, and the stock certificates having, after suit brought, been deposited subject to the order of the subscribers; this not being a sale of the stock for less than par by the company, contrary to Pub. St. c. 149, 8-9, as the directors have no claim against it for the balance of the subscriptions.

Actions by George J. Lincott, Dudley B. Peavey, Carrie E. Giles, Byron H. Marston, and W. I. Holmes against the Northwood Union Shoe Company. Judgment for defendant.

which the following is a copy: "We, the undersigned, subscribe to the capital stock of the Northwood Union Shoe Company the amount set against our respective names. No subscriber to be held for all or any part of his subscription until the whole amount of the capital stock is subscribed, $25,000. Payment to be made ten per cent. per month of our wages, until the whole amount of each individual subscription is paid." Soon after, the whole amount of the capital stock having been subscribed, the corporation was formed. By authority of the board of directors, the whole stock (500 shares, of the par value of $50 each) was issued to the directors as trustees, to hold as security for $25,000 which they loaned to the corporation, upon the understanding that they would transfer the stock to the subscribers when the latter paid the amount of their subscriptions. As soon as the factory was started, the plaintiffs entered into the defendant's employ, and 10 per cent. of their wages was paid to the directors, who held the stock on account of the plaintiffs' stock subscriptions. They continued to work under this arrangement until November, 1894, when the company became insolvent, and was unable to furnish work for them. They desired to perform their contracts, but were prevented from so doing by this circumstance. These suits are brought to recover the money retained by the company on account of the shares of stock subscribed for. None of the plaintiffs has demanded of the company the shares of stock for which he subscribed. During the pendency of the suits, certificates of stock to which the plaintiffs would have been entitled if they had been allowed to pay for them in full have been deposited with the clerk of court, subject to their order.

Felker & Pearl, for plaintiffs Lincott and Peavey. Burnham, Brown & Warren, John W. Kelley, and John S. H. Frink, for other plaintiffs. Louis G. Hoyt, for defendant.

PER CURIAM. Whatever might be the legal rights of the parties if the plaintiffs had made a demand for certificates of the stock for which they subscribed, and the defendant had refused to comply therewith, these actions cannot be maintained, in the absence of a demand. Swazey v. Manufacturing Co., 48 N. H. 200. If the certificates are delivered on demand before full payment is made, the plaintiffs cannot complain. It would be neither equitable nor legal that they should recover judgments payable in cash for their labor, for which they are entitled to payment in stock only, if they can have the stock without making further payments. The company's refusal or inability to employ the plaintiffs, or to accept payment in full for the stock, is unimportant, provided the stock is delivered to them upon demand. A vendor's refusal to accept full payment for the article sold, accompanied with its delivery to the vendee, does not authorize the latter to rescind the

contract, and recover back the partial payments he may have made.

It is claimed that the statutory prohibition of a sale or disposal of shares of stock by the company at a price below par (Pub. St. c. 149, § 9) makes it impossible for it to comply with a demand. But the company is not, in any proper sense, the owner of its stock. The entire capital was furnished in cash by the persons composing the board of directors, to whom the money paid by the plaintiffs equitably belongs. They had a right to hold the plaintiffs' certificates until they were fully paid for. This right they have surrendered by filing with the clerk the certificates, which he holds subject to the plaintiffs' order. The directors have no claim against the company for the balances due and unpaid by the plaintiffs, and the surrender of their right to hold the stock is not a sale or disposal of stock by the company. Judgment for the defendant.

WALLACE, J., did not sit. The others con

curred.

HACKETT v. LEOMINSTER NAT. BANK et al.

(Supreme Court of New Hampshire. Rockingham. July 26, 1895.) INSOLVENCY-PREFERENCE.

A pledge made by one, less than three months before filing his petition in insolvency, to obtain extension of time on note, can be recovered by his assignee in insolvency; Pub. St. c. 201, § 26, providing that pledges made within that time, the effect of which would be to diminish the property available to the creditors, made to secure a previously existing debt, shall be void.

Suit by Wallace Hackett, assignee, against the Leominster National Bank and Samuel W. Emery. Decree for plaintiff.

Bill in equity by the assignee in insolvency of William H. Rollins to recover 10 shares of the capital stock of the National Mechanics' & Traders' Dank and one bond of the Portsmouth Company. Facts agreed: May 14, 1894, the Leominster National Bank, by its attorney, Samuel W. Emery, brought suit against Rollins on a note indorsed by him. To avoid attachment of his estate, Rollins and Emery entered into the following agreement: "Received of William H. Rollins, Esq., ten shares of the capital stock of the National Mechanics' & Traders' Bank, of Portsmouth, N. H., and one bond, No. 98, of Portsmouth Co., of South Berwick, Me., the same to be retained and held under the following agreement: I hold a negotiable promissory note signed by said Portsmouth Co., dated So. Berwick, Me., Dec. 30, 1893, for twelve hundred fifty dollars, payable to the order of William H. Rollins, in four months, and indorsed by said Rollins and Nahum Harwood. Now, said Rollins is desirous of obtaining time upon said note, and has deposited the stock and bond abovesaid with Samuel W. Emery, attorney for Leominster Nat'l Bank, of Leominster, Mass., as

collateral to secure the payment of said note, which may be sued and judgment had at the October term of the supreme court, A. D. 1894, for Rockingham county. Now, if, upon execution issuing at said October term, said Rollins shall, within five days, pay said note, with interest, costs, and notary's charges, then the above stock and bond are to be delivered to him, but, if he does not so pay, the same are to be sold at pledgee's sale at once." Under this agreement, Rollins delivered to Emery the stock and the bond named therein, which Emery now holds for the Leominster National Bank. On the date of the agreement, Rollins was insolvent. August 13, 1894, Rollins filed his petition in insolvency, and subsequently the plaintiff was appointed his assignee. Any exception to the form of the proceedings is waived.

John S. H. Frink, for plaintiff. Samuel W. Emery, for defendants.

*

*

WALLACE, J. "All payments, pledges, mortgages, conveyances, sales, and transfers made within that time [three months], the effect of which if held valid would be to diminish the property available to the creditors, * * * which were made to satisfy or secure a previously existing debt, shall be void." Pub. St. c. 201, § 26. The statute, in its design to prevent preference and to compel an equal distribution of the debtor's assets among his creditors, forbids his satisfying or securing a previously existing debt within three months of the beginning of the insolvency proceedings. This transaction was a pledge by Rollins of the bank stock and bond to secure his indebtedness to the Leominster National Bank. If held valid, it will diminish the property available to the creditors of his insolvent estate. The pledge, being made less than three months before the beginning of the insolvency proceedings, to secure a previously existing debt, is void by the express terms of the statute. Leavitt v. Lovering, 64 N. H. 607, 15 Atl. 414. Decree for the plaintiff. All con

cur.

LANE v. HILL.

(Supreme Court of New Hampshire. Rockingham. July 26, 1895.) WILLS-REVOCATION-ISSUE-PRACTICE — EVIDENCE-DECLARATIONS.

1. A will is revoked by a subsequent will only so far as the latter expressly revokes, or is shown to be inconsistent with, the former.

2. Under Pub. St. c. 200, § 11, providing that on appeal from the probate court, if any fact material to the cause be disputed, the court may direct an issue to try such fact, the whole ques tion should not be submitted to the jury, but only material questions of fact bearing thereon.

3. Though an issue whether a will was revoked would have been withdrawn, on motion, before its submission, there being no sufficient evidence that it was revoked, the motion, made after the submission and failure of jury to find a verdict thereon, is too late.

4. The jury having failed to find a verdict on the issue, on appeal from probate, whether a will was revoked, there will be a new trial without any motion therefor.

5. Revocation of a will may be shown by parol proof of the contents of a subsequent will, lost, destroyed, or canceled.

6. Declarations of a deceased testator are admissible to show contents of a lost will, and, if such will be inconsistent with an earlier will, to show revocation of the prior will.

7. While due execution of a will cannot be shown by declarations of testator containing a mere conclusion, his declaration that he made a will written by a certain person is admissible in corroboration of testimony of another to that effect.

8. There is no presumption of revocation from failure to find a will not shown to have been in testator's possession.

9. Destruction of a will does not revive a former one, in the absence of evidence that such was testator's intention, especially where it contains a clause of revocation.

Appeal from probate court, Rockingham county.

Issue on appeal from probate of will of George W. Lane, between Lane, executrix, and Hill. Case discharged.

Three issues were presented at the trial: (1) That the will probated and allowed by the probate court was not the last will and testament of George W. Lane; (2) that the will was not signed by George W. Lane, nor by any person in his presence, and by his express direction; (3) that the instrument was not attested and subscribed in his presence, and at his request, by three credible witnesses. On the first issue the jury were unable to agree. On the second and third issues they returned a verdict in favor of the plaintiff. The testimony of Jennie Felch, called by the defendant, tended to show that subsequently to the date of the will offered for probate the testator executed a will, to which she was one witness, and her deceased husband, Fred R. Felch, by whom it was written, was a second. There was a third witness, whose name she was unable to state. The evidence did not disclose the name of the third witness, the contents of the second will, its existence at the time of the testator's decease, or whether it revoked the first will. The defendant offered to show, and excepted to the exclusion of, the testator's declarations, made a few months before his death, that he had made a will, written by Fred R. Felch, in which he had provided well for his wife, and had given the farm and some money to his daughter. The will offered for probate gave all the testator's property to his wife, and was written by Jesse B. Pattee. The plaintiff moved for judgment on the verdict establishing the will on the second and third issues on the grounds: (1) That all the evidence introduced and offered by the defendant to prove the existence and due execution of a second will revoking the first was insufficient in law for that purpose; and (2) if a second will was made, which revoked the first, its existence at the date of the testator's death must be shown.

PARSONS, J. Three issues were submitted to the jury. Upon two the jury found for the plaintiff, in substance, that the will was duly executed by the testator, George W. Lane. To this verdict, and the evidence upon which it is founded, there is no exception. Upon the first issue that the will probated and allowed by the probate court was not the last will and testament of George W. Lane-the jury were unable to agree. The plaintiff moves for judgment on the ground that all evidence introduced and offered by the defendant to prove this issue was insufficient in law for that purpose. If the first issue is understood as submitting to the jury for their finding merely the question whether, after the execution of the will propounded, the testator had executed another will, the issue is an immaterial one. "A subsequent will does not revoke a former one unless it contains a clause of revocation, or is inconsistent with it. And where it is inconsistent with the former will in some of its provisions merely, it is only a revocation pro tanto. Brant v. Willson, 8 Cow. 56. Where a subsequent will is made, and there is no proof that it contained any clause revoking a former will,-as in cases where the contents of the last will cannot be ascertained,-it is not a revocation of the former will. This was decided by the court of king's bench in England, more than 150 years since, in ne case of Hutchins v. Basset, Comb. 90, 3 Mod. 203; and that decision was subsequently affirmed upon a writ of error in the house of lords. See Hungerford v. Nosworthy, Show. 146. In the subsequent case of Harwood v. Goodright, Cowp. 87, which came before the court of king's bench in 1774, it was held that a former will was not revoked by a subsequent one, the contents of which could not be ascertained; although it was found by a special verdict that the disposition which the testator made of his property by the last will was different from that made by the first will, but in what particulars the jurors could not ascertain. This case was also carried to the house of lords upon a writ of error, and the judgment of the court of king's bench was affirmed. As these two decisions of the court of dernier ressort in England were previous to the Revolution, they conclusively settle the law on the subject here." Nelson v. McGiffert, 3 Barb. Ch. 158, 164, 165; 1 Redf. Wills (1st Ed.) 350; 1 Jarm. Wills, 338 (*172); Pickens v. Davis, 134 Mass. 252. A verdict of the jury, therefore, establishing as a fact that the testator executed another will after the execution of the will from whose probate the appeal was taken, without more, would not defeat the executor's right to a judgment establishing this will. She would be, therefore, equally entitled to such judgment where no verdict has been rendered. Her right to a judgment would not