sured shall, within 15 days after notice of | fendants could not have compelled the inthe loss, mutually agree upon referees to ad-sured to enter upon a submission to referees, just the same, either party may, upon giv- if they had applied for the same within the ing written notice to the other, apply to a time limited, the fact (if it be one) that they justice of the Supreme Court, who shall ap- were prevented from applying for referees point three referees, one of whom shall be by the sale of a portion of the goods before thoroughly acquainted with the kind of prop- the expiration of that time is immaterial. erty to be considered, and their award in There was evidence from which it could be writing, after proper notice and hearing, found that the defendants had all the opshall be final and binding on the parties. In portunity for and made all the examination case of any loss or damage under this policy, they desired, as to the injury to the goods a statement in writing, signed and sworn to insured. by the insured, shall be forthwith rendered to the company, setting forth the value of the property insured, in detail, the interest of the insured therein, all other insurance thereon, the purposes for which and the persons by whom the building insured, or containing the property insured, was used, and the time at which and the manner in which the fire originated, so far as known to the insured. The company may also examine the books of account and vouchers of the insured, and make extracts from the same, and shall have access to the premises and property damaged. It is moreover understood that there can be no abandonment of the property insured to the company, and that the company shall not in any case be liable for more than the sum insured, with interest thereon from the time when the loss shall become payable as hereinafter provided." Page, Bartlett & Mitchell and Ernest L. Guptill, for plaintiff. Kelley, Harding & Hatch, for defendants. PARSONS, C. J. If the list furnished the local agent was not a technical compliance with section 6, c. 170, Pub. St. 1901, requiring notice in writing by the insured to the secretary, a director, or an agent of the insurer in case of loss or damage to property insured, any defect therein might be waived. Gleason v. Insurance Co., 73 N. H. 583, 64 Atl. 187; Perry v. Insurance Co., 67 N. H. 291, 296, 33 Atl. 731, 68 Am. St. Rep. 668. The question of waiver was submitted to the jury without objection, so far as appears, to the insufficiency of the evidence to sustain a finding for the plaintiff, and none is taken here. The requirements of a sworn statement of loss and appraisal by referees are in conflict with chapter 170, Pub. St., and compliance with either is not essential to the maintenance of a suit upon the policy. Gleason v. Insurance Co., supra; Franklin v. Insurance Co., 70 N. H. 251, 47 Atl. 91. If refusal to enter upon or continue an appraisal by referees, when required by the insurer within the time limited, does not defeat the action, an act which indicates the insured's intention not to enter into such submission, or renders the proceeding impossible, cannot have that effect. As the de The defendants' claim that the plaintiff was bound, as to the goods damaged, "to get them back into as good condition as she could" is not based upon any express provision of the policy to that effect. If the word "condition" has acquired in insurance circles the meaning attributed to it in the motion for a nonsuit, the parties to this policy made no use of it. The stipulation said to be found in the standard form of policy, "if the insured property is exposed to loss or damage by fire, the insured shall make all reasonable exertions to save and protect the same," by its terms applies to property threatened with injury by fire, not to property which has been damaged thereby. The policy insured against loss or damage by fire. If the plaintiff lost by reason of her negligence in care of the goods after the fire, she could not recover of the defendants damages therefor. There was, however, evidence that the plaintiff endeavored to follow the directions of the defendants' local agent as to the care of the goods, and that the course followed was what good judgment dictated. It could also have been found, from the action of the special agent in inspecting the goods and appraising the damage, the absence of complaint, the time, and the course which the plaintiff was instructed she must pur sue, if she refused to accept the sum offered, that the defendants waived such right as they had, if any, to any different course in the treatment ("conditioning") of the goods than had been pursued. As the case is brought here, it must be assumed, in the absence of exception to the charge, that all issues that could be raised on the evidence were raised and properly submitted to the jury, and were found for the plaintiff by the verdict for her. Exception overruled. All concurred. BURRILL v. ALEXANDER et al. (Supreme Court of New Hampshire. Rocking- OF ANOTHER-LIABILITY. Where a trespasser was injured by a wire which the owner had stretched across his land, the accident, was not liable unless the injury the owner, who was not present at the time of was caused intentionally, since an owner, not present and acting at the time, is under no lia- | person had walked against the wire without bility to a trespasser on account of the mere noticing it. condition of his premises. Where, in an action for injuries to a trespasser by a wire stretched across the land of the owner, the evidence showed that the public were accustomed to cross the land, that defendant, with knowledge thereof, stretched the wire across the path at from two to three feet above the ground, and that, before the accident, defendant and a third person had walked against the wire without noticing it, the questions whether the wire was maintained to trip unsus. pecting trespassers, and whether the method of defending the property against trespassers was reasonable, were for the jury, though the ultimate purpose of defendant was to put an end to the trespasses, and though he testified that he had no intention of injuring trespassers. [Ed. Note.-For other cases, see Negligence, Cent. Dig. §§ 279-286; Dec. Dig. § 136.*] 3. APPEAL AND ERROR (§ 273*)-INSTRUCTIONS -EXCEPTIONS-SUFFICIENCY. An exception to so much of the charge as defines the rights of plaintiff and the duty that defendants owed her, is so general that it may be overruled because of indefiniteness. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1620-1630; Dec. Dig. & 273 Trial, Cent. Dig. §§ 256, 257, 689, 690, 694-696.] 4. APPEAL AND ERROR (§ 215*)-INSTRUCTIONS -NECESSITY. Where a trial judge makes a mistake in his instructions, the counsel of the defeated party, who fails to call attention thereto, and thereby enable the judge to correct the error, may not complain of the verdict because of the error. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1309-1314; Dec. Dig. 8 215;* Trial, Cent. Dig. §§ 683-685.] 5. PLEADING (§ 9*) - DECLARATION CIENCY. SUFFIWhere a declaration sufficiently states the facts on which plaintiff relies, the fact that it contains an incorrect statement of the law applicable to the facts averred does not harm defendant, and a demurrer to the declaration is properly overruled. [Ed. Note. For other cases, see Pleading, Cent. Dig. § 29; Dec. Dig. § 9.*] Exceptions from Superior Court, Rockingham County; Chamberlin, Judge. Action by Blanche M. Burrill against Harrison Alexander and another. There was a verdict for plaintiff, and defendants bring exceptions. Overruled. Taggart, Tuttle, Burroughs & Wyman, for plaintiff. Owen & Veasey and Frink, Marvin & Batchelder, for defendants. PEASLEE, J. This case was submitted to the jury upon the theory that the plaintiff was a trespasser at the time of the injury complained of. Her injury resulted from the condition of the premises trespassed upon. None of the defendants were present when the accident happened. It therefore follows that they are not liable unless the injury was caused intentionally. In a situation like this, when the defendant is not present and acting at the time, he is under no liability to a trespasser on account of the mere condition of his premises. Hobbs v. Company, 75 N. H. 73, 70 Atl. 1082, 18 L. R. A. (N. S.) 939. If it were established that the injury was intentionally inflicted-that the purpose, or one purpose, in maintaining the wire was to trip up unsuspecting trespassers-the further question would be presented whether this was a reasonable measure to take to defend "On the subthe property from invasion. ject of defending a man's property, in his absence, by spring guns, mantraps, or other engines calculated to destroy human life or inflict grievous bodily harm, the English courts turned a question of fact into a question of law, and were not successful in their efforts to prescribe adequate rules for determining the reasonable necessity of such engines under the varying circumstances of different This error of the courts was partially corrected by acts of Parliament. * If the courts had refrained from the invasion of the province of the jury, it would not have been necessary for the Legislature to make this imperfect restoration of the common law, or to provide penalties for its violation. If the reasonable necessity of employing defensive machinery of all kinds had been left to the jury, as such a question of fact should have been, much judicial and legislative trouble would have been avoided, and the general principles of the common law would have been sufficient." Aldrich v. Wright, 53 N. H. 398, 404, 405, 16 Am. Rep. 339. cases. * * The motions for a nonsuit and to direct a verdict were properly denied. The nature of the contrivance maintained by the defendants, and the fact that to their knowledge people had run against it before the time the plaintiff was hurt, are sufficient to warrant the jury in finding that it was maintained for that purpose. It is probably true that the ultimate purpose of the defendants was to put an end to the trespasses, but it could well enough be found that this end was to be reached by means of upsetting the unwary who should persist in the trespass for Defendant excepted "to so much of the charge to the jury as defined the rights of the plaintiff and the duty that the defendants owed her." The plaintiff's evidence tended to prove that the public were accustomed to cross defendant's lot, and that the defendants, with knowledge of this fact, stretched a wire across the path at a height of from two to three feet above the ground. This was done some months before the accident. The wire was described as an ordinary telephone wire and of a gray color. Before the accident, one of the defendants and another One liable over for defendant's acts, and having notice of the suit, is concluded by the judgment when thereafter sued by defendant. [Ed. Note. For other cases, see Indemnity, Cent. Dig. § 41; Dec. Dig. § 14.*] a time after the wire was strung. The fact | 2. INDEMNITY (§ 14*)-PARTIES CONCLUDEDthat the defendants testified that they had NOTICE OF SUIT. no such intention is not conclusive of the matter. Huskie v. Griffin, 75 N. H: 345, 348, 74 Atl. 595, 27 L. R. A. (N. S.) 966. It is quite manifest that if there was such an intent to inflict injury, the question of its rea-3. JUDGMENT (§ 955*) — PARTIES - PRESUMPsonableness as a method of defending property would be for the jury. TIONS. Though there was no formal order making a wife a party to a suit against her husband for trespass, defended by him on the theory that she had a right of way over the land, and that ferred on an issue of res judicata from the fact he was acting as her servant, it must be inthat she filed a formal statement setting up the same defense that she was permitted to become a party without objection, since otherwise her proffer of defense should have been stricken. [Ed. Note. For other cases, see Judgment, Cent. Dig. §§ 1819-1821; Dec. Dig. § 955.*] 4. JUDGMENT (§ 675*) - CONCLUSIVENESS PARTIES BOUND. A judgment binds not only those shown by those who assume that right. the record to have the right to defend, but also [Ed. Note. For other cases, see Judgment, Cent. Dig. §§ 1190, 1191, 1194; Dec. Dig. § 675.*] The exception to the charge was so general that it might well be overruled because of its indefiniteness. Paine v. Railway, 58 N. H. 611; Haines v. Insurance Co., 59 N. H. 199; Edgerly v. Railroad, 67 N. H. 312, 36 Atl. 558; Guertin v. Hudson, 71 N. H. 505, 53 Atl. 736. But if it were to be considered as presenting a question as to the general theory of the law which the presiding justice sought to follow and elucidate, the result would be the same. The jury were instructed as to reasonable defense of property, and were told that the rule is that trespassers can recover only for intentional injuries, when an accident results from the condition of the premises. This is a correct 5. JUDGMENT (§ 634*)-RES JUDICATA-TEST. theory of the law. Upon authority and rea-ed by a former judgment is whether the same The true test whether an issue is precludson, the defendants are now precluded from parties have once contested the same issue. the argument of objections to the details by [Ed. Note.-For other cases, see Judgment, which the general theory was worked out. Cent. Dig. § 1150; Dec. Dig. § 634.*] "It is not ordinarily practicable for the court, during the progress of a trial by jury, to prepare with care and precision a written statement of the law applicable to the case, nor to delay the trial for the purpose of examining books and authorities. The duties of the bench and bar are to some extent reciprocal. If the judge makes a mistake, and counsel perceiving it do not call his attention to it, pointing out an error which he may instantly correct, a verdict will not be disturbed on account of the error." Paine v. Railway, supra. Transferred from Superior Court, Sullivan County; Pike, Judge. Bill by Ollie M. Lamberton and another against Kate Dinsmore and another. Transferred on plaintiffs' exceptions. Exceptions sustained. Bill in equity, brought by husband and wife to enjoin interference with a right of way alleged to be appurtenant to real estate owned by the wife. In a prior suit brought by the present defendants against the husband for trespass to real estate there had been a confession as to part, a brief statement of the right of way and its use by the busband as servant of the wife as a defense to the rest of the alleged wrong, a special The declaration sufficiently states the facts upon which the plaintiff relies. If it does not contain a correct statement of the rules of law applicable to the facts alleged, the defendant has not been harmed. The demur-verdict that the way existed as pleaded, and rer was properly overruled. Exceptions overruled. All concurred. LAMBERTON et al. v. DINSMORE et al. (Supreme Court of New Hampshire. Sullivan. Dec. 6, 1910.) 1. JUDGMENT (8 747*)-CONCLUSIVENESS-TITLE TO LAND. Judgment for defendant in trespass on the theory that his wife had a right of way over the land, and that he was using it as her servant, settled the title to the way as between the parties to that action, and, defendant's wife having been permitted to make the same defense, the judgment precludes plaintiffs from questioning the existence of the way in a subsequent suit by defendant and his wife to enjoin interference therewith. [Ed. Note. For other cases, see Judgment, Cent. Dig. § 1287; Dec. Dig. § 747.*] judgment on the verdict. The brief stateIment concluded as follows: "The defendant and the said Ollie M. Lamberton, whose servant and agent this defendant was at the time of the alleged trespass, claim the right as stated, and will show that they have the right to travel over said ancient way leading as stated to and from the lands of said Ollie M. Lamberton for any purpose connected therewith, and that they and those under whom they claim as matter of right have held and used the same from time immemorial for the purposes aforesaid. Ira Colby & Son, Attys. for Deft. and Ollie M. Lamberton." In this proceeding the court (Pike, J.) ruled that the existence of the way had not been established as between Mrs. Lam berton and Dinsmore, and the plaintiffs excepted. Hosea W. Parker and Ira G. Colby, for | issue. They have done so in this matter plaintiffs. Edward R. Buck and Scott Sloane, and are bound by the result. for defendants. PEASLEE, J. Exceptions sustained. All concurred. LOVELL v. BOSTON & M. R. CO. (Supreme Court of New Hampshire. Hillsborough. Dec. 6, 1910.) CONTRACTS (§ 2*)—VALIDITY—WHAT LAW GOVERNS. The validity of a contract is governed by the law of the place of the contract; and, where that law forbids the making of a contract, it will not be enforced in New Hampshire, and a contract which is valid where made will usually be enforced in New Hampshire. [Ed. Note.-For other cases, see Contracts, Cent. Dig. § 2; Dec. Dig. § 2.*] 2. CONTRACTS (§ 2*)-VALIDITY-WHAT LAW GOVERNS. of an act to be done under it are distinct, for The validity of a contract and the legality the making of a contract is an act which depends for its validity on the law of the place; the test of the validity of a contract being to inquire whether the law of the place forbids the parties to make it, and not whether such law forbids them to do the acts it contemplates, nor whether the parties are forbidden to do the acts by the law of the place where they are to be done. The special defense of a right of way set up in the trespass suit, and the verdict and judgment thereon, settled the title to the way as between the parties to that action. Potter v. Baker, 19 N. H. 166; Bartlett v. Prescott, 41 N. H. 493; Moran v. Mansur, 63 N. H. 377. The question here is 1. whether the wife, Ollie M. Lamberton, was a party to that litigation. This query is not necessarily determined by the record recital of parties plaintiff and defendant. One who is liable over for the acts of the defendant and has notice of the suit is concluded by the judgment therein when thereafter sued by the original defendant. Hubbard v. Gould, 74 N. H. 25, 64 Atl. 668; Boston & Maine R. R. v. Brackett, 71 N. H. 494, 53 Atl. 304; Boston & Maine R. R. v. Sargent, 70 N. H. 299, 47 Atl. 605; Gregg v. Company, 69 N. H. 247, 46 Atl. 26. Whether it is universally true that after such a proceeding the judgment is conclusive between the original plaintiff and the party notified to defend may not be so clear. It is held by some courts that a notice from the defendant which is no part of the record may bind the third party. French v. Parish, 14 N. H. 496, 502. But, if this were done without the knowledge of the plaintiff, it would seem that he would not be bound, and, as the estoppel must be mutual (Parker v. Moore, 59 N. H. 454, 456), neither would the third party be bound as to the plaintiff. It is not necessary to pursue this inquiry, for the present case is not of this class. Here the party liable over filed as a part of the record in the case a formal statement of defense, avowing the acts of the then defendant as those of her servant, and setting up her own title by way of defense. Although there was no formal order that she be made a party, it must be inferred that she was permitted by the court to become one, and that the plaintiff made no objection to the course pursued. If this were not so, her proffer of defense should have been stricken from the record. Sevey v. Chick, 13 Me. 141. The judgment binds not only those who on the technical record have the right to make defense, but also "those who assume such a right." Big. Est. (2d Ed.) 47. Had the verdict been that the right of way did not exist, the issue would have been finally settled as between her and the original defendant; and, since there was ample notice to all parties of her position in that suit, it is also determined as between any two of them. Sevey v. Chick, supra; Nash v. D'Arcy, 183 Mass. 30, 66 N. E. 606; Castle v. Noyes, 14 N. Y. 329; The true test is whether the same parties have once contested the same [Ed. Note. For other cases, see Contracts, Cent. Dig. § 2; Dec. Dig. § 2.*] 3. SUNDAY (§ 13*)-VALIDITY OF CONTRACTS. A contract executed on Sunday in Vermont for the transportation by a carrier of an aniis invalid because such a contract is prohibited mal to New Hampshire through Massachusetts by the law of Vermont, so that the contract, though it would have been valid if made in Massachusetts, is not effective to limit the liability of the carrier for injuries to the animal while transported through Massachusetts. [Ed. Note.-For other cases, see Sunday, Cent. Dig. §§ 36-44; Dec. Dig. § 13.*] 4. SUNDAY (§ 15*)-VALIDITY OF Contracts. The fact that a carrier receiving and contracting on Sunday for the transportation of an tract at a time it could have legally made the animal completed the shipment under the concontract, and the fact that the shipper accepted the animal on its arrival at destination, did not show that the shipper recognized the contract as valid, and did not prevent him from relying on the invalidity of the contract because made on Sunday. [Ed. Note.-For other cases, see Sunday, Cent. Dig. § 46; Dec. Dig. § 15.*] Exceptions from Superior Court, Hillsborough County; Chamberlin, Judge. Action by L. T. Lovell against the Boston & Maine Railroad for injuring plaintiff's Falls, Vt., to Nashua by way of Ayer Junemare while transporting her from Bellows tion, Mass. There was a verdict granting insufficient relief, and plaintiff brings exceptions. Sustained. On Sunday, July 26, 1908, the plaintiff delivered the mare to the defendants and signed the contract on which they rely. The mare left Bellows Falls Sunday afternoon, was injured at Ayer Junction some time the of the place in which it is to be performed same night, was shipped thence Monday (Limerick Nat. Bank v. Howard, 71 N. H. morning, and was accepted by the plaintiff 13, 51 Atl. 641, 93 Am. St. Rep. 489; Rixon arrival at Nashua. An employé of the ford v. Smith, 52 N. H. 355, 362, 13 Am. Rep. plaintiff accompanied the mare in transit. 42; Gray v. Jackson, 51 N. H. 9, 12 Am. By the contract of shipment, the plaintiff Rep. 1; Barter v. Wheeler, 49 N. H. 9, 6 agreed that, in the event of loss or damage, Am. Rep. 434), and not that its validity is the defendants' liability should be limited to to be determined in that way (Davis v. Os$100, and they contended that he was not good, 69 N. H. 427, 44 Atl. 432; Little v. entitled to recover more than that sum in Riley, 43 N. H. 109, 113). In short, the reathis action. The plaintiff claimed that the soning of these cases presupposes a contract contract relied upon by the defendants was the parties were permitted, or at least not invalid, and sought to recover the full value forbidden, to make by the lex loci contractus, of the mare on the ground that the defend- and they hold that even such a contract will ants' liability was that imposed by the com- not be enforced when it would not be legal mon law upon a common carrier of freight. if made in the place in which it is to be perAt the close of all the evidence, the court formed. Thayer v. Elliott, 16 N. H. 102. ruled that the plaintiff could recover no more These cases therefore do not sustain the conthan $100, and directed a verdict for him in tention that this court will enforce a contract that sum, and the plaintiff excepted. the parties were forbidden to make by the lex loci contractus, when it appears that it would have been legal if made in the place in which it was to be performed. Neither does the rule usually applied in this jurisdiction to determine when a contract made in one place, but to be performed in another, is valid. According to that, the validity of the contract is to be determined by the lex loci contractus. In other words, a contract the lex loci contractus forbids the parties to make will not be enforced in this jurisdiction (Davis v. Osgood, 69 N. H. 427, 44 Atl. 432); but one which is valid where it is made will usually be enforced here (Seely v. Insurance Co., 72 N. H. 49, 55 Atl. 425; Dorntee Casket Co. v. Gunnison, 69 N. H. 297, 45 Atl. 318; Cleveland Machine Works v. Lang, 67 N. H. 348, 31 Atl. 20, 68 Am. St. Rep. 675). Doyle & Lucier, for plaintiff. Edgar J. Rich, Matthew Hale, and Hamblett & Spring, for defendants. YOUNG, J. The defendants concede that if the contract "is void because executed on Sunday, and the plaintiff is in a position to interpose this objection," his exception should be sustained. Their first position is that the contract is valid, notwithstanding the parties were forbidden to make it by the lex loci contractus, because it would have been legal if made in Massachusetts, the place where it was to be performed in part and where the accident happened, or because so much of the carriage as was to be done in that state was legal; in other words, they say that at common law the validity of a contract is to be determined by the law of the place where it is to be performed. If by the common law is intended the common law as it is understood in Massachusetts, where the accident happened, the validity of this contract must be determined by the law of Vermont; for, if this action were pending in that commonwealth, that is the rule which would be applied to determine the validity of the contract. 23 Harv. Law Rev. 98, where the Massachusetts cases on this question are cited. That would seem to be a complete answer to the defendants' first position. Limerick Nat. Bank v. Howard, 71 N. H. 13, 51 Atl. 641, 93 Am. St. Rep. 489. But, however that may be, if it is assumed that the validity of the contract is to be determined by the view of the common law which obtains in this jurisdiction, the defendants' contention cannot be sustained; for the reasoning of Barter v. Wheeler, 49 N. H. 9, 29, 6 Am. Rep. 434, and the cases which follow it, on which the defendants rely, do not sustain the contention that the validity of a contract is to be determined by the law of the place in which it is to be performed. All these cases hold is that a contract will Although all contracts to do an illegal act are invalid, the converse of that proposition is not true. It does not follow from the fact that the carriage of the mare on Sunday was legal in Massachusetts that the contract under which it was done was valid. The legality of an act and the validity of the contract under which it is to be done are as separate and distinct entities as the act of making the contract and that of doing any of the things it contemplates. The making of a contract is an act, and, like all other acts, depends for its validity on the law of the place where it is done; so, when the contract is not made in the place in which it is to be performed, its validity depends on the law of one jurisdiction, and the legality of the act to be done on that of another. A contract may be invalid when the act to be done is legal, both where the contract is made and where it is to be performed (Davis v. Osgood, 69 N. H. 427, 44 Atl. 432), for, not only is a contract to do an illegal act invalid, but one to do a legal act is also invalid if it is made at a time or in a way the lex loci contractus forbids the parties to make it. The test therefore to determine the validity of a contract is to inquire whether the lex loci con |