erly side of this lane were other lots, running back to another road, designated on the plat as "Young's Road." By the ordinances of 1876 and 1888, Broadway street was extended northerly, and Biddle street easterly, as laid down in the plat. Cemetery lane has been closed by the agreement of all the parties concerned, and the question in this case is as to the title to its bed. The appellant resists the application for the specific performance, on the ground that the appellees have no good and marketable title, and are therefore not in a position to fulfill their part of the agreement.

It would serve no purpose to incumber this opinion with the several conveyances through which the appellees claim to be the owners of the bed of Cemetery lane in fee. It is sufficient to say it all depends upon the construction and legal effect of certain deeds of Thomas Yates. In 1807, Yates' assignees, Barry and Stewart, conveyed lots Nos. 2 and 3 (on the plat) to the trustees of the Presbyterian church. Both of these lots abut on Cemetery lane. The description in the deed is: "Beginning *** at a stone standing on the north side of Belair road;

** thence running N., 40° 30' W., 267 feet, to a twenty-foot road [Cemetery lane]; thence, bounding on said twenty-foot road, N., 45° E., 333 feet, to that part of said tract conveyed by the said Thomas Yates to Andrew Demees and John Miles; thence," etc. Now, the rule applicable to a conveyance of land bounding by a highway is that it carries the fee to the center of the road, as part and parcel of the grant, provided the grantor at the time owned to the center, and there are no words or specific description to show a contrary intent. Heights Co. v. Sadtler, 63 Md. 533; Gump v. Sibley (decided by this court March 14, 1894; not yet officially reported) 28 Atl. 977. In the lastmentioned case the rule was applied, where the call was to a road which was originally a private alley, had never been dedicated to the public, had been kept open only under a covenant of the parties, and was then closed. In the deed now under consideration the words used are: "To a twenty-foot road; thence, bounding on said twenty-foot road, N., 45° E., 333 feet, to," etc. There are no words nor calls to indicate that it was not the intent of the grantor that his deed should not carry the fee to the center of the road. The grantee in this deed must take a fee, therefore, to the middle of Cemetery lane, in front of the triangular parcel marked on the plat as "Lot A." For the same reasons, the deed of Yates to William Merryman, dated 29th July, 1803, must be held to carry the fee to the middle of the lane in front of lot D.

As to the residue of Cemetery lane within the limits of the ground sold by the appellees the question arises in the following manner: In 1803, Yates conveyed to Demees and Miles all the ground to the east

ward of lots Nos. 3 and 7, lying between the Belair and Young's roads, including the bed of Cemetery lane. In 1819 the same property was conveyed to Robert Oliver. In 1821, by his deed of the 22d of August, Oliver conveyed to the First Independent Church. So much of the description contained in this deed as concerns this case is as follows: "Beginning *** at a stone standing on the northwest side of the Belair road, * * * and running thence ***, to a lane [Cemetery lane] twenty feet wide, now left open by the said Robert Oliver, and henceforth so to remain, for the mutual use, benefit, and accommodation of the parties to these presents, and their respective representatives; then northeastwardly, bounding on the southeast side of said lane, and parallel with the aforesaid road, fourteen perches and thirty-eight one-hundredths parts of a perch; then," etc. This deed, calling, as it does, for the southeast side, conveyed no interest to any portion of the lane. In 1826, Oliver conveyed to John Hakesley as follows: "Beginning at a stone," etc.; "thence N., 464° E., 219 feet; thence S., 44° E., 245 feet, to the northeast corner post of the inclosure of another graveyard, distinguished by the name of 'Independent Unitarian Graveyard'; then, running with and binding on the said inclosure, S., 43° W., 239, to intersect the direction of the second line of the aforesaid lot No. 7; then to the place of beginning,containing one acre and thirty-three square perches of land, be the same more or less, exclusive of twenty feet wide along the third line heretofore appropriated to the purpose of a road," etc., "to have and to hold all and singular the aforesaid one acre and thirty-three square perches of land, be the same more or less, and every part," etc. This description by metes and bounds unquestionably includes Cemetery lane. The call at the end of the third line is for "the northeast corner post of the inclosure of another graveyard, distinguished by the name of the 'Independent Unitarian Graveyard'; then, running with and binding on the inclosure," etc. This post, as well as the inclosure, is on the south side of Cemetery lane. The fourth line begins at the post, and runs with the inclosure. Cemetery lane is therefore clearly within the grant. It is contended, however, that the next clause must be taken as modifying this description to the extent of excluding the lane. But that provision of the deed is no part of the description of the lot. Obviously, it is but a statement of the area of the ground, to the effect that the property conveyed contains 1 acre and 33 square perches, not including in the measure the ground in the bed of the road. There is no reservation of the road from the grant. We place but little stress upon the fact that the habendum clause mentions but 1 acre and 33 square perches. This clause cannot divest

an estate already vested by the deed. If repugnant to the estate granted, the clause would be void. 4 Kent, Comm. 523. The purpose of the grantor was not, however, in our opinion, to modify the description which had preceded. The road was subject to an easement, and what the grantor intended was to declare that all of the estate granted, exclusive of the road, should be held to "the only proper use, benefit, and behoof of the grantee," etc. The decree must be affirmed. Decree affirmed.

FOWLER v. BECKMAN et al. (Supreme Court of New Hampshire. Rockingham. July 31, 1891.) INJUNCTION-VIOLATION-DEFENSES.

1. A service of a copy of an injunction order is sufficient notice of the injunction, without a writ.

2. A person who knowingly aids in the violation of a decree enjoining defendants, "their servants, aiders, and abettors," is in contempt, though not a party to the bill, nor personally named in the decree.

3. Where the complaint alleges defendant's violation of an injunction to refrain from occupying a certain lot of land, it is no defense that he occupied it under a vote of the town authorizing him so to do.

Case reserved from Rockingham county. Complaint by Richard Fowler against Asa Beckman, Reese Owen, and Abram W. Perkins, alleging a violation of a decree in equity. On notice to show cause why an attachment should not issue, the case heard by a justice in vacation, and reserved. Case discharged.

The complainant was the defendant in the action of trespass qu. cl., South Hampton v. Fowler, 52 N. H. 225; Id., 54 N. H. 197, in which case he recovered a judgment that established his title against South Hampton. August 4, 1890, the complainant and others filed a bill in equity in this county against Beckman and Owen (two of the respondents) and Sewell B. Fowler. In the bill the plaintiffs alleged, in substance and effect, that they were owners in severalty of the strip of land in Seabrook, about a mile in length, varying in width from 40 to 80 rods, and bounded easterly by the ocean, westerly by the marsh, northerly by Hampton river, and southerly by the state line; that the defendants were trespassers on the land, having no right there; that in July, 1887, said Beckman wrongfully built a house there, although notified by the owner of the land not to do so; that an action of trespass brought by the plaintiff, Richard Fowler, against Beckman, was referred to Judge Ladd, who found Beckman guilty, and assessed damages; that Beckman defended that suit as tenant of said Owen; that, at the trial, Owen assumed the defense, and claimed the whole strip under an alleged deed from Sally Fowler, deceased, which deed purported to have been made in 1870, but was not recorded till about

the time of Beckman's entry; that all persons who appear on the deed as witnesses and justice, and the person by whom, according to Owen's testimony, the deed was written, are dead; that Owen's defense was founded on fraud; that other litigation, specified in the bill, terminated in favor of the plaintiff's title; that the defendants continue to commit trespasses on the land; that their irresponsibility, and the prevention of irreparable damage and a multiplicity of suits, make a case within the jurisdiction of equity. "And whereas the plaintiffs have maintained their titles, as against the defendants, in suits at law, and whereas, by the results, as found, the plaintiffs are the owners and in possession of said beach, and the defendants are trespassers," the plaintiffs pray that the defendants be enjoined from cutting any more trees, bushes, grass, or herbage on the land; from turning their cattle or horses to feed on the herbage thereof; from driving over and across the land; and from committing any acts of trespass thereon. The plaintiffs also pray for an order on the defendants to leave said beach, with their families, horses, cows, servants, aiders, and abettors, and to enjoin them from entering anew upon the land, as they threaten they will do, and for general relief. The bill having been served, the defendants appeared by counsel at the October term, 1890. No answer was filed. The bill was taken pro confesso, and a decree was rendered that the defendants, their servants, aiders, and abettors, are strictly enjoined and commanded not to cut any trees, bushes, grass, or herbage on the land, and not to turn any cattle or horses to feed on the herbage thereof; also, from driving over and across the land, except in such passways as the plaintiffs shall leave open for the use of the public; also, from committing any acts of trespass on the land; also, to leave the land, with their families, horses, cows, aiders, and abettors, forthwith, and not to enter anew upon the land until they have purchased a right therein, or made good a title thereto in a suit at law or in equity. It was also ordered and decreed that a writ of possession issue. March 19, 1891, Chase, a deputy sheriff, read a copy of the decree to the defendants of that suit, Asa Beckman, Reese Owen, and Sewell B. Fowler, and gave each a copy; and on the 27th day of April, 1891, he made like service on the selectmen of Seabrook, and on the town committee chosen April 17, 1891. The clerk has issued no writ of injunction, and no other sealed paper for the enforcement of the decree than a writ of possession, and that has not been executed. The respondents contend they are not liable, because no process under seal has been served on them, or issued to enforce the, decree.

After the copies of the decree were served on the defendants against whom the decree was rendered, two of them, Beckman and Owen, for the purpose of avoiding the decree,

and depriving the plaintiffs of the benefit of it, caused steps to be taken that are now set up as a defense to this complaint. A petition was drawn, signed by 20 voters, and presented to the selectmen of Seabrook, requesting them to call a town meeting to see what action the town would take, if any, in relation to renting the beach, or any part of it. At a town meeting called in pursuance of the petition, and holden April 17, 1891, the record shows the following action: "To see if the town will vote to choose agents to lot off the beach, and rent the same. Voted: 52, yes; 14, no. Voted: To nominate three agents. Francis Beckman, Reese Owen, Abram W. Perkins, were chosen agents." The record also shows that Owens and Perkins took the oath of office, as agents, April 24, 1891. Owen and Perkins, claiming to act as town agents, went upon the strip of land described in the bill (called the "Beach" in the bill and the town vote), and divided and staked it into lots; making the lots 70 feet wide, except when that width carried the line through houses. When that happened, as it did in the case of the house built by Beckman, and in other instances, they made the lots wide enough to include the buildings. In this lotting the house built by Beckman is on lot No. 69. The following paper was signed, and delivered to Beckman, who paid Perkins two dollars: "May 13, 1891. Received of Asa Beckman $2 for rent for one lot of beach land No. 69 for one year. Received payment as agents for the town of Seabrook. Reese Owen. Abram W. Perkins." May 26, 1891, Chase went to that lot with the writ of possession, and found the respondents there, told them he had served copies of the decree on them, read the writ to them, laid hands on them, and ordered them off. They refused to go, claimed a right to be there, under the action of the town, and said if he put them off they should come back. Beckman continues in the occupation of the house and lot, claiming possession as tenant of the town. The only witnesses at the hearing were Chase, called by the complainant, and Owen, called by the respondents. The testimony of both witnesses shows a violation of the decree by Beckman and Owen, unless the facts herein stated are a defense. The same testimony shows a violation of the decree by Perkins, unless the same facts, and his not being a party personally named in the bill in equity and decree, are a defense. No evidence was offered of any title or right but that shown in the plaintiffs by the record.

S. H. Goodall, for complainant. S. W. Emery, for respondent.

ALLEN, J. When an act is prohibited by a judicial order or decree, technically called an "injunction," a person who knowingly violates the prohibition, before he has formal notice of it, and before the order or decree is extended upon the record, is liable to arrest, and to the same penalty as if a copy of a

writ of injunction had been read and deliv ered to him by a sheriff. Winslow v. Nayson, 113 Mass. 411, 420; High, Inj. §§ 1421, 1424, 1444. The order or decree is the injunction. Its legal effect does not depend upon the form of the oral or written communication by which it is made known to those whose aggression it prohibits. Formal notice of it is given for their information, and as a means of proving their knowledge. If they are aware that they are doing what they have been enjoined not to do, the law does not require the service of process or notice for the purpose of giving them information which they already have; but ready and sure proof of their knowledge may become convenient and useful if the plaintiff is compelled to apply for an attachment. In Buffum's Case, 13 N. H. 14, 16, the remark that service of a copy of an injunction decree "is not sufficient to authorize an attachment" may be a mere statement of English prac tice, quoted from 1 Smith, Ch. Prac. 429, without consideration. In that case a writ of execution of the decree, as well as a copy of it, had been served, and an examination of the subject was unnecessary. "Injunctions may be ordered by the court, or by any justice thereof, by an order, and such order shall have the same force and effect in all respects as if a writ of injunction were issued." Chancery Rule 37, and Chancery Forms, 3, 13; 38 N. H. 613, 615, 619; 56 N. H. 612, 613, 617. Other orders and decrees in equity were not named in the rule for the reason that they were understood to be operative, without writs of enforcement, in cases in which writs are not required by statute. There is no more occasion for final process in the form of a writ in an injunction case than in any other equity suit. In this case the respondents had full knowledge of the decree, and, for the purpose of this proceeding, their knowledge was as effective as if it had been derived from a writ of injunction. A want of process under seal is no defense to the complaint.

The plaintiffs in the bill in equity have such a legal title or possession that they have been successful in all suits brought upon or against it. The decree obtained by them against Beckman and Owen is no broader than the prayer of the unresisted bill, in any respect material to the present charge. The decree has not been reversed or vacated, and cannot be collaterally impeached. Fowler v. Brooks, 64 N. H. 423, 13 Atl. 417; State v. Kennedy, 65 N. H. 247, 23 Atl. 431; People v. Sturtevant, 9 N. Y. 263. On the facts found, without evidence of title in the town, if the vote of April 17th, and the acts of the town agents Owen and Perkins, are to be considered as corporate, municipal acts, they make the town an aider and abettor of Beckman and Owen in the violation of the deA further hearing may change the present aspect of the case, but, on all the evidence that has been introduced, the re

spondents stand no better than they would if the vote had been merely and expressly to aid and abet Beckman and Owen in defying the law. As title is not shown in the town, it does not appear that the town's vote "to choose agents to lot off the beach and rent the same" contained any element of validity or legality. Without right or title, the town, as an accessory of Beckman and Owen, induced by them to take part with them in invading private property and resisting legal authority, is of no more avail than a private accomplice. If the operation of the decree could be suspended by the mere act of a town or other person claiming title and putting the respondents in possession, it could be perpetually stayed by a succession of pretenders employed by Beckman and Owen to give them the shelter of groundless claims.

Perkins was not a party to the bill, and his name is not in the decree. But the decree properly enjoined the defendants, "their servants, aiders, and abettors"; and as a copy of the decree was read to him, and given to him, he knew that his subsequent acts as an aider and abettor of Beckman and Owen were prohibited, and he is liable for his violation of the decree, as if he had been personally named therein. High, Inj. §§ 1-140-1443. The complaint will be further heard at the trial term, where judgment will be rendered. Case discharged.

DOE, C. J. Exception overruled. Wendell v. Mugridge, 19 N. H. 109, 113, 114; Baker v. Davis, 22 N. H. 27, 33, 35; Piper v. Hilliard, 58 N. H. 198; Barker v. Savage, Id. 252; Redding v. Dodge, 59 N. H. 98; Edes v. Herrick, 61 N. H. 60, 61; Garvin v. Legery, Id. 153; Logue v. Clark, 62 N. H. 181, 185; Cocheco Aqueduct Ass'n v. Boston & M. R., Id. 345; Langdon v. Buchanan, Id. 657, 661; Hardy v. Nye, 63 N. H. 612, 3 Atl. 631; Gagnon v. Connor, 64 N. H. 276, 9 Atl. 631; Morse v. Whitcher, 64 N. H. 591, 15 Atl. 217; Gage v. Gage, 66 N. H. 282, 292, 29 Atl. 542.

CARPENTER, J., did not sit. The others concurred.

MEREDITH MECHANIC ASS'N v. AMERI-
CAN TWIST-DRILL CO. (two cases).
(Supreme Court of New Hampshire. Belknap.
July 31, 1891.)

AMENDMENT OF PLEADING-BREACH OF COVENANT
BY LANDLORD-USE AND OCCUPATION.

1. Where a new trial should not be granted, an application to amend by changing the form of action, made after verdict for defendant, is properly refused.

2. Where a lessor breaks a covenant of the lease, and the benefit received by the lessee from his use of the premises is more than the damages from the breach of covenant, the excess may be recovered in an action for use and occupation.

Case reserved from Belknap county.

Actions of debt by the Meredith Mechanic Association against the American TwistDrill Company on a lease for rent of a mill. The first is for rent payable in 1888, and the second for rent payable in 1889. In the first, after a verdict for the defendant, the plaintiff moved to amend the declaration by adding a general count in assumpsit for use and occupation during the time for which rent was claimed in the original declaration. The same motion was made in the second action, which has not been tried.

E. A.

Barnard & Barnard, for plaintiff. & C. B. Hibbard, Jewell & Stone, and S. W. Rollins, for defendant.

DOE, C. J. In the first action the amendment, if allowed, would be useless without a new trial. The motion to amend was not seasonably made, and it does not appear that justice requires a new trial. The equitable principle of Britton v. Turner, 6 N. H. 481; Horn v. Batchelder, 41 N. H. 86; Wadleigh v. Sutton, 6 N. H. 15; Elliott v. Heath, 14 N. H. 131; Clough v. Clough, 26 N. H. 24, 32; Davis v. Barrington, 30 N. H. 517, 528; Page v. Marsh, 36 N. H. 305, 308; Smith v. Newcastle, 48 N. H. 70; Blodgett v. Berlin Mills, 52 N. H. 215, 220; Ellsworth v. Brown, 55 N. H. 396,-is applicable to a lessor's claim for use and occupation. In the second action the amendment, being seasonably applied for, should be allowed, if justice requires it. Morgan v. Joyce (N. H.) ubi supra. Case discharged.

ALLEN, J., did not sit. The others concurred.

AYER V. TOWN OF SOMERSWORTH. (Supreme Court of New Hampshire. Strafford. July 31, 1891.)

DEFECTIVE HIGHWAY-NOTICE OF INJURIES.

Under Gen. Laws c. 75, § 7, providing that every person sustaining damage by a defective highway shall file a written statement under oath, a statement as to injuries to plaintiff's horse may be made and filed by his agent.

Exceptions from Strafford county.

Action by Eugene G. Ayer against the town of Somersworth for injuries to the plaintiff's

horse. The plaintiff, residing in Boston, employed Marsh, a resident of Somersworth, to keep and train the horse, and Marsh was driving it when it was injured. The affidavit stating the time and place of the accident, and the injuries, and amount of damages claimed was made and filed by Marsh "for and in behalf of said Eugene G. Ayer," the plaintiff. The court found the affidavit sufficient, and the defendants excepted. Overruled.

W. S. & D. R. Pierce, for plaintiff. J. A. Edgerly and J. Kivel, for defendants.

DOE, C. J. "Every person sustaining dam

age

The

the defendant upon the replevin writ was wrongful. But since the service of the writ, and before trial of this action, the amount of the lien has been paid to the plaintiff, and accepted by him, thus terminating his right to the possession of the goods. right of the plaintiff in replevin, Philomene Bisson, to the possession, whether they were her property, or in part the property of her husband, is superior to the plaintiff's, who had no right to retain them after payment of his lien. He cannot recover for the value of goods upon which he has no claim, and which are now rightfully in the possession of another. The amount awarded as damages commensurate with the damage proved, but that question, with the one of costs, is settled at the trial term. Exception overruled.

CARPENTER, J., did not sit. The others

concurred.

CARPENTER, J., did not sit.

concurred.

The others

BISSON V. JOYCE.

(Supreme Court of New Hampshire. Strafford. July 31, 1891.)

REPLEVIN-DAMAGES.

Where goods are replevied from one having a lien thereon, and before the trial the amount of the lien is paid to him, he cannot recover the value of the goods, where they are in the possession of one rightfully entitled to it.

Exceptions from Strafford county.

Trespass quare clausum, with a count in trespass de bonis, by Ephraim Bisson against James H. Joyce.

The action was brought in the police court of Somersworth, where the plaintiff bad judgment, and the defendant appealed. One Philomene Bisson sued out a writ of replevin, returnable at the September term, 1890, by virtue of which the defendant, a deputy sheriff, took the goods, for the taking of which damages are demanded in this suit. Ephraim Bisson, the plaintiff in this suit, claimed a lien on the goods for $69. February 23, 1891, and before the trial of this case, Philomene settled the replevin suit by paying to Ephraim all he claimed on account of his lien. The goods were in one of Ephraim's rooms, in a tenement house. The defendant went to the room, found the door locked, procured a key, with which he unlocked it, and took the goods. The court ordered judgment on the first count for the plaintiff for one dollar, and costs to the time of the settlement of the replevin suit, and the plaintiff excepted. Overruled.

O. S. Cormier, for plaintiff. W. S. & D. R. Pierce, for defendant.

ALLEN, J. The plaintiff had a lien on the goods, and had the right of possession until the lien was satisfied; hence, the taking by

SIMPSON v. GAFNEY.

(Supreme Court of New Hampshire. Strafford. July 31, 1891.) DISMISSAL OF APPEAL.

An executor who has appealed from an allowance of a claim against the estate by a commissioner in insolvency may dismiss the appeal before trial.

Exceptions from Strafford county.

Charles B. Gafney, executor of the estate of Lois Merrill, appealed from the decision of the commissioners allowing to Roxana E. Simpson $1,000. The jury returned a verdict for Simpson of $2,500, which verdict was set aside when the executor moved that his appeal be dismissed. The motion was granted, and the plaintiff excepted. Overruled.

W. S. & D. R. Pierce, for plaintiff. Worcester & Gafney and John Kivel, for defendant.

ALLEN, J. The plaintiff may become nonsuit at any time before trial. Webster v. Bridgewater, 63 N. H. 296: Farr v. Cate, 58 N. H. 367; Fulford v. Converse, 54 N. H. 543; Wright v. Bartlett, 45 N. H. 289; Judge of Probate v. Abbott, 13 N. H. 21. The executor, having taken the appeal, might abandon it by neglecting to give notice to the creditor. Gen. Laws, c. 200, § 3; Varrell v. Varrell, 57 N. H. 208. The obligation of the creditor to enter and prosecute his claim to judgment (Gen. Laws, c. 200, §§ 5, 7) is avoided by the abandonment of the appeal by the party taking the same. The appellant, for the purpose of maintaining his appeal, is in the same position as the plaintiff in a civil suit, and may abandon the same at any time before a trial is entered upon. Doughty v. Little, 61 N. H. 365. That there had been a trial, and a verdict, which had been set aside, is immaterial, because, after a verdict rendered and set aside, the same rules and