Varney v. Manchester.

which such diversions pass the bounds of legitimate recreation as a proper use of a highway is to be found by solving the question of reasonable use as a question of fact.

In the present case, the formation of a procession for the decoration of soldiers' graves was not unlawful. In the absence of evidence showing its use of the street for forming, waiting, or marching, was unreasonable, its use may be presumed, as a matter of fact, to have been reasonable; and the plaintiff was not in fault as a spectator, approving and abetting a wrongful act. He was not an accomplice in any violation of law. As he passed along the street, he could rightfully look at the procession; and it is not matter of law that he had no right, as a traveller, to pass along for the purpose of looking at it. Nor is it matter of law that he could not stop an instant for that purpose, as a traveller. He had been standing in one place for that purpose from three to five minutes, when the lumber fell upon him. The law does not prescribe how long he could stand there without ceasing to use the way as a way. The question is one of reasonable use; and that is a question for the jury, if there is any evidence on which they could properly find the use was reasonable. We think there is such evidence; and the motion for a nonsuit was properly denied. Hardy v. Keene, 52 N. H. 370, 376, 377; Cummings v. Center Harbor, 57 id. 17.

STANLEY and CLARK, JJ., did not sit.

Judgment on the verdict.

NOTE BY THE REPORTER. See Murray v. McShane (52 Md. 217), 36 Am. Rep. 367; Gholson v. State (53 Ala. 519), 25 Am. Rep. 652, and note, 654; McCarthy v. Portland (67 Me. 167), 24 Am. Rep. 23, and note, 25.

In McGuire v. Spence, New York Court of Appeals, a child fourteen years of age, while playing on the sidewalk, fell into an uncovered opening in the sidewalk and was injured. Held, that a judgment against the defendant would not be set aside because the child was playing at the time. The court said: "Nor does it change the result that she was playing upon the sidewalk instead of using it for the ordinary purposes of travel. Our attention is called to certain cases in other States as authority for the doctrine that only those using the streets for their appropriate and normal purposes are within the rule of protection. Blodgett v. City of Boston, 8 Allen, 237; Stinson v. Gardner, 42 Me. 248; McCarthy v. City of Portland, 67 id. 167; s. c., 24 Am. Rep. 23. In these cases the actions were against municipal corporations under statutes which bound them to keep the streets safe and convenient for travellers, and a just construction of the written law furnished the limitation of the corporate duty. In this State we have held that the duty exists not merely as to travellers, but as to all persons lawfully in the streets, and have imposed upon a city a liability for negligence where the person injured was in no sense a traveller, but engaged in excavating the street under lawful permission, but for the benefit of a private corporation Rehberg v. Mayor. January, 1883. This plaintiff was lawfully in the street. She had a right to be there, and while there not to be exposed to the possible dangers of an uncovered opening in the sidewalk. Nor does it matter that she was at play with other children. In McGary v. Loomis, 63 N. Y. 104; 8. c., 20 Am. Rep. 510, we stated it as a proposition too plain for comment that it is not unlawful, wrong or negligent for children on the sidewalk to play."

VOL. XLII - 76

A religious society may alter or remove a pew in its church, making compensation to the owner, in the course of necessary changes or repairs.*

TRE

RESPASS for assault in forcibly ejecting plaintiff from a church pew. The head-note and opinion show the point. The defendant had judgment below.

Lane, for plaintiff.

Faulkner, for defendants.

CLARK, J. In Fisher v. Glover, 4 N. H. 180, the court, in discussing the question of the rights of pew-holders, say, "It is usual to grant to individuals the exclusive use of pews, and these grants give to those individuals certain rights which are to be protected. The rights thus acquired are however limited, and are in our opinion subject to the right of the society to have the meeting-house in such place as will best accommodate the whole. A reservation of this right is implied in the grant of a pew in a house of public worship. The convenience of individuals must in such cases be subject to the general convenience of the whole; and whoever purchases a pew, purchases it subject to this right of the society. The language of the court in this case, and the statement of the relative rights of the society and the pew-holders, apply equally to the right of the society to alter, or remodel, or to remove the church edifice, which was the question then under consideration. This declaration, that the rights of pew-holders, from the nature of the property, are subject to the superior rights of the society for certain purposes, was made many years before the adoption of any statute in this State relating to the sale, alteration, or repairs of houses of public worship.

In Howe v. Stevens, 47 Vt. 262, it is said, "A pew-holder's right is only a right to occupy his pew during public worship; and when the meeting-house is in such a ruinous condition that it cannot be

* See Kincaid's Appeal (66 Penn St. 411), 5 Am. Rep. 377.

Jones v. Towne.

and is not occupied for public worship, he can recover only nominal damages for injury to his pew." "Pew-holders, in the ordinary cases of meeting-houses or churches, built by incorporations under the statute, have only a right of occupancy to their seats, subject to the superior right of the society owning the pew." Perrin v. Granger, 33 Vt. 101. "Pew-holders have merely a qualified and usufructuary right in their pews, subject to the right of the religi ous society to remodel them, and to alter the internal structure of the building, or enlarge or remove it, or sell the edifice and rebuild elsewhere." Sohier v. Trinity Church, 109 Mass. 1. See also, Gay v. Baker, 17 id. 438; 9 Am. Dec. 159; Daniel v. Wood, 1 Pick. 102; 11 Am. Dec. 151; Fassett v. First Parish in Boylston, 19 Pick. 361; 3 Kent Com. 533; Kimball v. Second Parish in Rowley, 24 Pick. 347. Such is the common law of New Hampshire in relation to the pew-holder's right. It is a qualified ownership, subject to the superior title included in the ownership of the house. The pew-holder cannot remove the pew, nor use it for any purpose except occupancy when the house is opened for use, and pew-tenancy is as accurate a designation of his interest as pew-ownership. [Omitting a statutory consideration.]

The society had the right to remove the pew, and there remained to the plaintiff only the right of compensation for its loss. No question is made but that the amount tendered by the society to the plaintiff was sufficient compensation for the pew, and the rul ings of the court upon this branch of the case were correct.

By persisting in the occupation of pew No. 25, and excluding Fletcher, the rightful occupant, the plaintiff became a trespasser, and upon his refusal to remove upon request, Fletcher, or any one acting at his request, had the right to remove him, using no more force than was necessary; and we think the ruling of the court upon this point was correct, that the exclusion of Fletcher from the occupation of his pew by the plaintiff, and his refusal to surrender it when requested, was such a disturbance and breach of the peace of the sanctuary as would justify the interference of the police. Exceptions overruled.

FOSTER, J., did not sit.

Stratton v. Stratton.

STRATTON V. STRATTON.

(58 N. H. 473.)

Marriage — ante-nuptial agreement — specific performance.

There was an ante-nuptial agreement that if the wife would take a farm on which she held a mortgage, and the husband would carry it on, she would contribute the products to the support of herself and the family during mar. riage. The agreement was carried out for more than two years, and the husband made valuable improvements at his own expense. The wife then conveyed the farm to a third, who knew of the agreement, in violation of the husband's rights. Held, that the agreement would be specifically enforced, and the third person enjoined from asserting his claim.

BILL

for injunction. The head-note states the facts.

Carpenter and Batchellor, for defendants.

Bingham & Mitchell, for plaintiff.

DOE, C. J. The disabilities and extensive suspension of legal personality, imposed upon married women by the ancient common law, are so far removed by statute, and by change of customs and conditions of society from which common law is largely derived, as to present no obstacle to the maintenance of this action by the plaintiff against his wife. Clough v. Russell, 55 N. H. 279. Her agreement was valid as a contract for a marriage settlement in his favor; and her conveyance to Ladd was a fraud upon that settlement. Under the former law, the husband, acquiring by marriage great and immediate rights in his wife's property, was entitled to relief against her fraudulent ante-nuptial conveyance of property which she had represented herself to him to be possessed of. 1 Story Eq., § 273. And for the purposes of this case, the legal capacities of the plaintiff and his wife being equal, her ante-nuptial promise, in consideration of marriage, is as binding as his, and equally enforceable by process of law. Specific performance of her agreement for the use of her land may be enforced to prevent a fraud being practiced upon him by his wife's inducing him to expend his money in valuable improvements on the faith of her agreement, and then depriving him of the benefit of them, and securing

Melvin v. Melvin,

On this ground gifts of

them or the proceeds of them for herself. land are enforced, as well as contracts for the sale of land. Browne Stat. of Frauds, § 491 a. It was not necessary that the plaintiff should take exclusive possession of the farm. He was not to dispossess her. It is enough, that having such use of the farm, in pursuance of her agreement, as the agreement contemplated, he made substantial improvements, with her knowledge and assent, on the faith of the agreement. And for specific execution, the injunction asked by him against both defendants is an appropriate pro

The subjecting of the wife by the husband to excessive sexual intercourse is ground for divorce, and the fact may be shown by the wife's testimony, and such testimony will not be excluded on grounds of public policy or decency.

A

CTION for divorce. The head-note shows the facts. The libellant had judgment below.

Eastman and Cross, for libellee.

Briggs & Huse, for libellant.

SMITH, J. It has been held that the testimony of the husband or wife to prove non-access, though living together, and therefore that the offspring is spurious, is incompetent upon the ground of decency, morality and policy. 1 Greenl. Ev., § 253. The authorities which support this rule are cases in which the legitimacy of children was drawn in question. The disastrous consequences that would follow the unsettling of titles to property, and the branding of legitimate children as illegitimate, have been regarded as sufficient reasons for the rule. But the mere indecency of disclosures