household furniture, be converted into money by his executor (his son Joel) within two years from his decease, and that the property and the rents, interest, and profits that might have accrued thereon be then divided into three shares; one of which he gave to his son Joel, in trust to pay over the rents, issues, dividends, and profits thereof to his, the testator's, daughter Mary Ann, wife of James R. Glover, for and during her natural life, and after her decease to pay over such rents, interest, dividends, and profits to her children, or for their use and benefit, at his discretion, until the youngest should come of age, when that third was to be divided among them, share and share alike. By the fifth clause he ordered and directed that the before-mentioned two houses and lots should constitute part of that third, and should be estimated to be worth, together, $3,000; and he thereby authorized his son Joel to sell them at his discretion at any time after his, the testator's, decease, and to receive the proceeds, and hold, appropriate, and pay them, and the interest and profits thereof, upon the same trusts, and for the same purposes, above set forth, in regard to the third of which the property was to form a part. Mary Ann Glover survived the testator, and survived her husband also. She died in 1885. At the time of the testator's death she had four children living, viz.: Charles, Helen, Frank, and Mary. Helen married Caleb A. Gallup, and died intestate in 1872, before the death of her mother, leaving her husband surviving and her two children, Mabel and Herbert. Mary Glover, the other daughter of the testator's daughter Mary, married William Moore, and died intestate in 1877, before the death of her mother, and without issue, (she never had a child born alive,) leaving her husband surviving. The Southardstreet houses and lots have not been sold. The testator died seized of other real estate in Trenton besides the Southard-street property. Part of the estate of the testator which came into the executor's hands was certain shares of the capital stock of the State Bank at New Brunswick, which shares were owned by the testator at the time of his death. The bank failed in 1873, and the stock was thus wholly lost. The questions submitted are, as to the devolution of the before-mentioned third of the residue of the testator's estate given to the complainant in trust for Mrs. Glover, whether, under the will, the remainder over is to her children as a class, and therefore to those of them who were living at her death; whether the Southard-street property is to be regarded under the provisions of the will as real or personal property; and whether the executor should, under the circumstances, be charged with the loss upon the above-mentioned bank stock. The testator, by the fourth section of the will, directs absolutely a conversion of the property constituting the residue, with the exception of the Southard-street houses and lots. The property which was thus to be converted must be regarded as personalty. The gift of the one-third of the residue in question was to his daughter Mary for life, with remainder to her children. The gift in remainder is of the rents, interest, dividends, and profits until the youngest of the children shall come of age, when the corpus is to be divided among them, share and share alike. The gift in remainder vested at the same time as the life-interest, at the death of the testator. That the gift was not to the children as a class is evidenced by the fact that it is to them as tenants in common. Hawk. Wills, 112; Herbert v. Post, 26 N. J. Eq. 278, and 27 N. J. Eq. 540. It follows from what has been said that the husbands of the deceased daughters of Mrs. Glover are entitled, upon taking out letters of administration, to the shares of their deceased wives. The direction to convert the Sourthard-street property was not absolute, but discretionary only. That property is expressly excepted from the positive direction to sell, in the preceding section. The testator intended that it should in its then condition, as land, be and continue part of the third given in trust for his daugther Mary, and should so go to her children, unless the trustee should think it best to sell it. There is no ground for holding that there was a notional conversion of it. As to the shares of stock of the State Bank at New Brunswick mentioned in the bill. The bill states, and it appears by the evidence, that the investment therein was made by the testator himself, and was continued by the executor. The executor acted in good faith, and in the exercise of a reasonable discretion, and the loss occurred without any fault on his part. A supplement, passed in 1881, to the orphans' court act, (P. L. 1881, p. 130,) provides that where an executor or trustee continues, in good faith, an investment made by the testator on bond and mortgage, or in the bonds or shares of stock of any corporation, and such securities shall have come into the hands of the executor to be administered, and he, in the exercise of good faith and a reasonable discretion, may have, before the passage of the act, continued the investment, or may, after the passage of the act, continue the investment, he shall not be accountable for any loss by reason of such investment, provided, that the act shall not apply to cases where the deed of trust or will, or the court having jurisdiction of the matter, specially directs in what manner the trust fund shall be invested. It will be decreed that the trustee is not responsible for the loss in question. (64 N. H. 295) HALL, Adm'r, v. HALL.1 (Supreme Court of New Hampshire. March 11, 1887.) STATUTES-REPEAL-LIMITATIONS. In view of the provision of Gen. Laws N. H. c. 1, 33, that "the repeal of any act shall in no case affect any act done, or any right accruing, accrued, acquired, or established," before the taking effect of the repealing act, held, that Gen. Laws N. H. c. 221, 5, repealing the statute which gave a right of action upon a note secured by a chattel mortgage, so long as an action might be maintained upon the mortgage, (Gen. St. c. 202, § 5,) did not affect causes of action existing at the time of the repeal. Reserved case from Sullivan county. Assumpsit upon a promissory note for $900, payable on demand, and dated February 21, 1870. Writ dated December 15, 1885. Plea, the statute of limitations. Facts found by the court. The note was secured by a chattel mortgage at its date, but the mortgaged chattels are not now in existence. Since November 5, 1870, no payment, or promise of payment, has been made. If the action is not barred by the statute of limitations, the plaintiff is entitled to recover $339.89, with interest. L. W. Barton and S. L. Bowers, for plaintiff. G. R. Brown, for defendant. ALLEN, J. As the law stood prior to January 1, 1879, when the General Laws went into effect, actions upon notes secured by mortgage might be brought as long as the plaintiff was entitled to bring an action upon the mortgage. Rev. St. c. 181, § 5; Comp. St. c. 192, § 6; Gen. St. c. 202, § 5. Assuming (what the case does not show, but what may be inferred to be the fact) that the personal mortgage held by the plaintiff's decedent was under seal, an action might have been brought upon it at any time within 20 years after the action accrued, (Gen. Laws, c. 221, § 4,) and a right of action upon the note existed in his favor prior to the time when the General Laws came into effect. Demerritt v. Batchelder, 28 N. H. 533; Alexander v. Whipple, 45 N. H. 502, 505. By Gen. Laws, c. 221, § 5, the right to bring suit upon notes secured by mortgage, so long as an action could be brought upon the mortgage, was limited to cases of real-estate mortgages, leaving actions upon notes secured by personal mortgages to be governed by the general limitation of six years. This change was a repeal of the law giving a right of action upon a note secured by a personal mortgage as long as an action might be maintained upon the mortgage. There is nothing in the law making the change showing the intention of the legislature to apply it to actions then pending, or to existing causes or rights of action. And that such was not the intention is plain from the provisions of the General Laws upon the subject, enacted at the same time. "The repeal of any act shall in no case affect any act done, or any right accruing, accrued, acquired, or established, or any suit or proceeding had or commenced in any civil case, before the time when said repeal shall take effect." Gen. Laws, c. 1, § 33; Id. c. 291, § 5. The narrowing of the time within which an action might be brought and maintained upon a note secured by a personal mortgage, from twenty years to six years, by General Laws, c. 221, § 5, cannot destroy a right of action then accrued and existing. When the change was made in the statute, more than six years had elapsed since the last promise to pay the note; and if the narrowed limitation of six years, left by the statute making the change, is applied, the plaintiff's right of action then existing was at once and wholly destroyed by the change. Such a use cannot be made by the repealing statute, and the plaintiff's right of recovery is not affected by it. Dickinson v. Lovell, 36 Ñ. H. 364; Rowell v. Railroad, 59 N. H. 35. Judgment for the plaintiff. CLARK, J., did not sit. The others concurred. (64 N. H. 279) LITTLE v. UPHAM.1 (Supreme Court of New Hampshire. March 11, 1887.) EXCEPTIONS-REVIEW-VERDICT. A motion to set aside a verdict because it is against the uncontradicted evidence in the case presents no question of law. Bill of exceptions from Hillsborough county. Trespass for assault and battery. Plea, the general issue, with a brief statement that the defendant acted in self-defense. Verdict for the defendant, which the plaintiff moved to set aside, "because, upon the uncontradicted evidence, the defendant made the first assault, and assaulted the plaintiff anew after the plaintiff had ceased to inflict or threaten violence to him, and had retreated." Motion denied, and this bill of exceptions allowed. D. A. Taggart and Sulloway, Topliff & O'Connor, for plaintiff. Burnham & Brown, for defendant. CLARK, J. The objection that the verdict is against the evidence presents no question of law. It is a question of fact, to be determined at the trial term. Fuller v. Bailey, 58 N. H. 71; Lefavor v. Smith, Id. 125; Kelley v. Woodward, Id. 153; Hovey v. Brown, 59 N. H. 114. Exception overruled. SMITH, J., did not sit. The others concurred. (64 N. H. 214) WILLEY . CITY OF PORTSMOUTH.1 (Supreme Court of New Hampshire. March 11, 1887.) 1. EVIDENCE-RES GESTE-WAYS. In an action against a city for obstructing the plaintiff's way by digging gravel, the plaintiff may show, as a part of the res gestæ, that it was done under the direc tion of the city's highway surveyor, for highway purposes. 1 Reported by R. E. Walker, Esq., of the Concord bar. 2. TRIAL-OBJECTION TO EVIDENCE. An exception to the admissibility of evidence on one point does not ordinarily raise the question of nonsuit for want of evidence on another. Reserved case from Rockingham county. Case for obstructing and digging up the plaintiff's way and carrying away gravel. The defendant owned the gravel on the lot over which the plaintiff's way passed. Subject to exception, the plaintiff was permitted to show acts of highway surveyors, and persons acting under them, in digging and carrying away the gravel for repairing highways. Verdict for the plaintiff, which defendant moved to set aside. Frink & Batchelder, for plaintiff. Samuel W. Emery, for defendant. BINGHAM, J. The defendant owned the gravel over which the plaintiff's way passed, and, subject to exception, was permitted to show that the persons moving the gravel from his way were surveyors of highways, and persons acting under them. The case is meager in narrative, but it is understood that the gravel bank was outside the limits of any highway, and that the exception is to evidence showing for whom the persons digging the gravel claimed to be working. The manner in which the wrong was done, by whom, and under what claim, were things so closely connected with the main fact as to be admissible as a part of the res geste. If it was the purpose of the defendant, in taking the exception, to raise the question of its liability for the acts of highway surveyors, the case fails to show it: For aught that appears, the ruling in that particular may have been satisfactory. An exception to the admissibility of evidence on one point does not ordinarily raise the question of nonsuit for want of evidence on another. Judgment on the verdict. CLARK, J., did not sit. The others concurred. (64 Ν. Η. 234) WINNIPISEOGEE PAPER CO. v. EATON and others.1 ACTION-REFORMATION OF DEED-AMENDMENT-EQUITY. A deed cannot be reformed in an action at law; but leave may be granted at the trial term to amend the pleading which asks for a reformation, by filing a bill in equity. Reserved case from Merrimack county. Covenant on the warranty of a deed made by the defendants to the plaintiffs, July 28, 1875. The plaintiffs moved to reject the defendants' brief statement, in which, after certain averments of fact, they "request the court to so reform the deed executed by the defendants on July 28, 1875, that it will in all respects fully accord with the agreement, undertaking, and intention of the parties to it as above set forth," etc. D. Barnard, for plaintiffs.. Bingham & Mitchell, for defendants. DOE, C. J. The deed cannot be reformed in an action at law. The defendant can move at the trial term for leave to amend his pleading by filing a bill in equity. The question of the form of action is not considered when time spent upon it would be wasted, (Peaslee v. Dudley, 63 N. H. 220; Joyce v. O'Neal, 64 N. H. 91, 6 Atl. Rep. 33;) but the reserved case shows no reason why the question of the defendants' right to relief in equity should be tried in the action at law; and convenience ordinarily requires that such a point should be tried and decided in an appropriate action, and upon an issue that Reported by R. E. Walker, Esq., of the Concord bar. will not invite a controversy on the question whether the parties are bound by the decision, (Parker v. Moore, 63 N. H. 196, 197.) Case discharged. BINGHAM, J., did not sit. The others concurred. (15 R. I. 621) OPINION OF THE JUDGES. In re REPRESENTATIVE VACANCY. ELECTIONS TO CONGRESS-VACANCY-ORDERING NEW ELECTION. If a certain person is declared, by the general assembly of Rhode Island, to be elected as a representative to congress, but, after taking his seat, he is declared by the house of representatives not elected, and the seat is declared vacant, it is not a case in which the general assembly should order a new election, under Pub. St. R. I. c. 11, 22 5, 6, providing for the determination of the result of an election for representative by the general assembly, and the ordering of a new election, if no person have a majority of votes cast, but the governor should do so under the provisions of Const. U. S. art. 1, § 2, that, "when vacancies happen in the representation from any state, the executive authority thereof shall issue writs of election to fill such vacancies." Pub. St. R. I. c. 11, §§ 5, 6, are: "Sec. 5. The ballots given in at such elections [i. e., of representatives in congress] shall be returned to the general assembly at its session next ensuing such election; and those given in each district shall be separately counted; and the candidate having a majority of legal votes therein shall be declared elected, and shall be furnished by the governor with a proper certificate thereof. "Sec. 6. If no person have such majority, the general assembly shall order a new election at such time as they shall deem most expedient; and the ballots given in at such election shall be returned to, examined, and counted by the general assembly, or by the governor, at such time as the general assembly shall direct; and the candidate in each district having a plurality of the legal votes given in at such second election shall be declared elected, and shall receive a certificate accordingly." ** * Under article 10, § 3, of the constitution of the state, which provides that "the judges of the supreme court * * * shall give their written opinion upon any question of law whenever requested by the governor, or by either house of the general assembly," the governor addressed the following communication to the justices of the court: STATE OF RHODE ISLAND, EXECUTIVE DEPARTMENT. To the Honorable Judges of the Supreme Court: I have the honor to represent (1) that William A. Pirce was, by the general assembly, declared to have been duly elected November 4, 1884, a representative in the Forty-ninth congress of the United States from the Second congressional district of this state. (2) That the national house of representatives, on the twenty-fifth day of January, 1887, adopted a resolution in the words following, viz.: "Resolved, that William A. Pirce was not elected a member of the house of representatives from the Second congressional district of Rhode Island, and that the seat be declared vacant." (3) That the reason for the adoption of said resolution was, as appears from the report of the majority of the house committee on elections, and from the records of the house of representatives, that no one of the candidates at said election received a majority of the legal votes given in at said election, and that there had been no election in accordance with the laws of this state. (4) That the constitution of the United States (article 1, § 2) provides: "When vacancies happen in the representation from any state, the executive authority thereof shall issue writs of election to fill such vacancies." (5) That Pub. St. c. 11, § 6, provides that, |