
    Merrimack,
    June, 1900.
    Concord Land and Water Power Co. v. Clough.
    Petition, under the flowage act, for the assessment of damages to the defendant’s land.
    The plaintiffs excepted to the following statement in the argument for Clough: “ My brother Sargent made an excuse. He said that if you dug down there when you were up there, you could have seen what was under the surface. I didn’t think of that. He did, it seems. ... If I had thought of that, I should have had it done.”
    
      Streeter, Walker & Hollis and Sargent & Niles, for the plaintiffs.
    
      Martin & Howe, for the defendant.
   Peaslee, J.

The plaintiffs’ comment on the defendant’s failure to show the nature of the soil by inspection was an argument concerning the failure to pr.oduce available evidence, and was unobjectionable (Mitchell v. Railroad, 68 N. H. 96, 116); while the defendant’s unsworn statement of the reason why such evidence was not produced vitiates the verdict. Bullard v. Railroad, 64 N. H. 27.

Verdict set aside.

Chase and Pike, JJ., did not sit: the others concurred.  