Volume 23 — Rhode Island Reports

<p>Bill of Interpleader. The facts are stated fully in the opinion.</p>

<p>Bill in Equity to avoid a deed. Heard on sufficiency of pleas.</p>

Trespass on the Case for negligence brought by the plaintiff against the defendant corporation, alleging that while in the employ of the defendant corporation he was severely and permanently injured by the fall of a derrick which was negligently maintained and used by the defendant.

<p>(1) Highways. Abandonment.</p> <p>Gen. Laws cap. 71, § 28, confers authority upon the board of aldermen of the city of Providence to abandon a public highway without a preceding request from the city council to abandon the same.</p> <p>(2) Highways. Abandonment.</p> <p>Where all the owners of land through which a highway passed had previously agreed with the board of aldermen that they would claim no damages by reason of abandonment, and asked for such abandonment, there was no necessity for the appointment of the committee provided by Gen. Laws cap. 71, for the purpose of negotiating as to any damages sustained.</p> <p>(3) Highways. Abandonment.</p> <p>The question of abandonment of a highway has been left to the discretion of the board of aldermen by Gen.' Laws cap. 71, and its action is not subject to review by the court except upon appeal duly taken. Distinguishing State v. Cumberland, 7 R. I. 75.</p>

<p>(1) Equity. Creditor’s Bill. Probate Expenses.</p> <p>Gen. Laws R. I. cap. 218, § 27, provides a remedy, where an executor or administrator neglects to raise money out of the estate by selling real estate, if need be, in favor of any creditor damnified thereby.</p> <p>A creditor’s bill in equity will not lie against an estate to reach equitable assets until legal remedies have been exhausted.</p>

<p>Bill in Equity to establish a resulting trust, The facts are fully stated in the opinion. Heard on bill, answer, and proof.</p>

Petition for a Trial under Gen. Laws, cap. 251, §2, on the ground of accident and mistake. The facts are stated in the opinion and prior proceedings in this case in the former opinion, 22 R. .1. 468.

<p>(1) Statute of Frauds. Equity.</p> <p>Oral agreement between A. and B., by tlie terms of Which B. agreed to purchase certain real estate at a foreclosure sale as the agent of A. and thereafterwards reconvey the same to A. B. purchased the property and conveyed the estate to C., who was ignorant of the relation existing between A. and B. A. brought a bill in equity, praying that B. might account for any sums received by him for the sale of the estate. B. demurred, on the ground that the undertaking was not evidenced by any agreement in writing as required by Gen. Laws cap. 233, § 6 — the statute of frauds.</p> <p>Held, that the demurrer was good.</p>

<p>Assumpsit on a policy of fire insurance. The facts are fully stated in the opinion. Heard on agreed statement’ of facts, jury trial waived.</p>

<p>Indictment. The facts are stated in full in the opinion.</p>

<p>Petition for Eeargument of the case decided in 23 R. I. 24.</p>

<p>(1) Laio of the Boacl. Highways. Traveled Part of Highway.</p> <p>Gen. Laws cap. 14, § 1, provides that “ every person traveling with any carriage who shall meet any other person so traveling on any highway shall drive his carriage to the right of the centre of the traveled part of the road, so. as to enable such person to pass.” A curbed street forty feet wide was paved with cobble-stones for twenty-four feet, and the remainder was macadamized. The paved portion was traversed by double tracks for electric cars. The whole width of the street was in order for travel, though not so much used as the macadamized portion</p> <p>Held, that the “traveled part” of the street was the whole width from curb to curb, and not that portion which was mostly used for travel.</p> <p>Held, further, that a plaintiff who, at the time of the accident in question, was on the left of the centre of the traveled part, as thus defined, and who showed no sufficient excuse for being there, and whose injuries were attributable to this cause, was guilty of such negligence as would bar recovery in an action brought by her to recover for injuries, received in a collision with defendant’s carriage.</p>

<p>Motion for reargument of the case' decided in 2-2 R. I. 642.</p>

<p>(1) Unconscionable Contracts. Equity. Reformation of Instruments.</p> <p>A., an elderly woman, unskilled in business matters, was the owner of a house and lot adjoining the respondent’s lot. The latter was a physician who had attended A. professionally, and they were on very friendly relations as neighbors. The space between A.’s house on the rear and the respondent’s line was eleven and a half feet; on the front a foot and a half less. The respondent was desirous of building an office at the rear of A.’s house, partly on his own and partly on A.’s land. A. declined to sell the land, but offered to lease it from year to year. The respondent declined this, and, after several conversations, resulting in no agreement as to the term of years, the respondent had a lease prepared by a lawyer of a strip extending from the street to the rear of A.’s lot, eleven and a half feet wide, for a term of five years, with a clause of renewal for a further term of fifteen years, at an annual rental of $12. The lease was brought to A. by the respondent and his attorney, read to her by the latter, and she signed it. The lease covered a foot and a half under the front of the house. It was not executed in duplicate, and no copy was given A. The office erected by. the respondent was so close to A.’s house that the rear could not be repaired at all, while the entire side could not be repaired without the respondent’s permission to enter upon the land.</p> <p>Upon a bill filed by A. to reform the lease':—</p> <p>Held, that the contract was unconscionable, the result of importunity and impulsive action based upon' confidence reposed in the respondent, who treated with A. on unequal terms, it being evident that she did not comprehend what she was doing.</p> <p>Held, further, that the term pf five years must be regarded as acquiesced iu by A., and that the lease would be reformed by striking out the renewal clause and limiting the land leased to that covered by the respondent’s building as it now stands.</p>

<p>Bill in Equity for the construction of a will. The facts are stated fully in the opinion.</p>

<p>Trespass on the Case for negligence. The facts are stated in the opinion.</p>

<p>(1) Hew Trial. Accident and Mistake. Garnishment. Exceptions.</p> <p>After a garnishee had filed an affidavit showing no funds, he was summoned into court and examined on oral testimony and charged. On petition for new trial under Gen. Laws cap. 251, § 2, alleging accident and mistake : — •</p> <p>Held, that although the charging upon oral testimony was erroneous, nevertheless the garnishee had appeared by the filing of the affidavit; and the court had jurisdiction of the subject-matter, of the defendant and of the garnishee, and the charging was in effect a judgment which, unless appealed from, was conclusive. Being an error of law, the remedy should have been by exception, under Gen. Laws cap. 250, $ 12.</p> <p> (2) Be minimis non curat lex. Hew Trial. </p> <p>A new trial will be refused where the amount involved is trifling and it is manifest that, whatever the result, it would he to the detriment of both parties.</p>

<p>Assumpsit. The facts are stated in the opinion.</p>

Assumpsit. The by-laws referred to by the court are as follows : “Article XI. “Section 1. No sick pay shall commence until the Secretary has received a .certificate signed by the Physician of this Court, stating the member’s illness. No other physician’s certificate shall be accepted by this Court. It shall not be compulsory upon a member to have the. Court Physician, but the Court Physician must visit the member at least once or twice a week and give the sick certificates.

<p>Bill in Equity for an accounting. Heard on exceptions to report of master.</p>

<p>Debt on bond of an executor for breaches set forth in the opinion.</p>

<p>(1) Pleading and Practice. Former Action Pending.</p> <p>A plea in abatement, setting up a former suit pending, will be overruled where it appears that the former action was prematurely brought and no recovery can be had thereon.</p> <p>(2) Probate Law and Practice. Actions against Executors.</p> <p>A declaration in an action against an executor to recover a debt due from the defendant’s testate to the plaintiff averred that within six months after the date of the first publication of defendant’s appointment and qualification the plaintiff presented her claim to the defendant, and that the defendant never filed in the Probate Court a statement allowing or denying the validity of the claim</p> <p>Held, on demurrer, that the allegation was not alleged as a ground of recovery but by way of inducement, explaining in what circumstances the action was brought; that it was necessary to aver and prove that the claim had been duly presented to the executor, and in the case where the executor had taken no action regarding the claim it was proper to aver and prove such fact in order to rebut the application of Gen. Laws-cap. 215, § i, limiting the time within which suit can be brought upon a ■ rejected claim.</p>

<p>Petition for Writ of Prohibition. After the decision reported in 22 R. I. 596, the case was remitted to the Probate Court of Pawtucket with direction to re-open the same and set a time for entry of decree or for further hearing. Thereupon petitioner attempted to discontinue petition.</p>

Petition for a Trial. The facts are as follows : This is an.appeal from an order of the town council of New Shore-ham with reference to the layout of a highway in that town, entered January 2, 1899.

<p>Mandamus. The facts are fully stated in the opinion.</p>

<p>(1) Wills. Failure of Issue. Life-F stales.</p> <p>Testamentary devise as follows :</p> <p>“III. One part (of testator’s real estate) to be given to my grandson X. and one part to be given to my granddaughter Z.</p> <p>“VI. In ease of the death of X. or Z. the property of each to be equally divided among their issue, the property of X. among his issue, and the property of Z. among her issue.</p> <p>“ VTI. If there is no surviving issue of my descent, viz., X. Z., the parents that are not of my descent of the issue of the aforementioned, parties, in case of the death of said'issue, are not to inherit the property, but it shall be divided as hereinafter directed.</p> <p>“ VIII. If none of the'aforementioned parties, that is to say of my descent, are living, it shall be divided as follows, viz.: to M., P., S., or their ' heirs, in equal proportions : ” — .</p> <p>Held, that under Gen. Laws cap. 203, '§ 14, the words in clause 3 would vest the whole title in X. and.Z. if no contrary intention was apparent from other parts of the will.</p> <p>Held, further, that under Gen. Laws cap. 202, § 24, the failure of issue must be construed to mean a failure of issue in the life-time of the testator, and hence X. and Z. were seized of an estate in fee-simple in the premises.</p>

<p> (1)Taxes. Descripition of Assessment. </p> <p>An assessment-list of towñ taxes was made np as follows:</p> <p>Warwick & Coventry Water Company, for pipe . and water rights, and right of way to Carr’s pond.......................................... Warwick & Coventry Water Company, land and dam at Carr’s pond, including right of flowage. Real. $30,000 10,000 Per. Tax. $315.00 125.00</p> <p>Held, that under Gen. Laws cap. 45, § 4, providing that “ taxes on real estate shall be assessed to the owners, and separate tracts or parcels shall be separately described and valued as far as practicable,” the assessment was void, as, although the assessors assumed to divide the land into two parcels, neither description was definite enough to identify the land, and it did not appear how much value was attributed to the land as such, and how much to the other property rights described, some of which'under some circumstances might not be real estate.</p> <p>Held, further, that parol evidence could not be used to supplement an assessment description too indefinite for the identification of the land assessed.</p> <p>(2) Taxes. Validating Aat. Constitutionality of Statute.</p> <p>Semble, where the General Assembly has by act validated an assessment made in violation of chapter 36, section 22, of the General Laws, in an action to recover a tax assessed thereunder, the court being constrained to rule the act constitutional cannot consider an objection as to the illegality of the original assessment.</p> <p>(3) Taxes. Notice of Assessment.</p> <p>Semble, the notice given by the assessors of taxes relative to the assessment of a tax is 'not fatally defective because it omits to use the word “ require ” in accordance with Gen. Laws cap. 46, § 6, that “ such notices shall require every person . . . to bringing true and exact account,” where the notice states by reasonably intelligent abbreviations the time and place when the assessors are to meet, and specifies the legal consequences of neglecting to bring in the account.</p>

<p>Assumpsit to recover a tax alleged to have been illegally assessed. The facts are fully stated in the opinion.</p>

<p>Petition for construction of a will. The facts are fully stated in the opinion.</p>

<p>Appeal from decree of Court of Probate. The facts are stated at length in opinion.</p>

<p>Assumpsit on book-account. The facts are fully stated in the opinion.</p>

<p>-Assumpsit. The facts appear in the opinion. Heard ont petition, of defendant for a new trial.</p>

<p>Assumpsit on book-account. Heard on exceptions of defendant to ruling of a District Court charging a garnishee.</p>

<p>Indictment, charging an offence set out in the opinion.</p>

<p>(1) Negligence. Freight Trains. Evidence. Seasonally Safe Appliances. ■ Master and Servant.</p> <p>The legal test of reasonable safety in machinery and methods is ordinary use. Hence in an action brought by a brakeman against a railroad for injuries received in attempting to step from one car to another on a dark night, while engaged in making up a freight train, the accident happening because of the cutting out of a square piece in the diagonal corners of the car which, he attempted to reach — this feature being intentional ■and a part of the original construction of the car — evidence tending to prove that similar cars were in common use on, other roads in New England is competent as bearing upon the question of their reasonable safety.</p> <p>(2) Evidence. Credibility of Witnesses.</p> <p>Where defendant railroad offered uncontradicted testimony that it had from fifty to eighty cars of similar construction to the one which plaintiff claimed was unsafe upon ¡ i s road prior to the accident, and that such cars were passing through the city where plaintiff was stationed, at varying intervals, some of such witnesses being fellow-employees of plaintiff, and plaintiff denied ever seeing such cars, and some of his witnesses testified to seeing them but seldom, testimony that cars of similar construction were in common use on other roads in New England, liable to. be exchanged with defendant’s road, was admissible as bearing upon the credibility of the conflicting witnesses.</p> <p>(3) Master and Servant. Assumed BisTcs.</p> <p>A brakeman in the employ of a railroad company, with ten years experience, who is injured on a dark night while engaged in making up a train because of failing to re mb ,a car toward which he had stepped from the roof of the next car, by reai|on of a square piece being- cut out of the roof in its original construetiof, assumes the risk of injury from such construction when it is shown that he was acquainted with the great diversity existing in the construction of such cars,</p> <p>(4) Evidence.</p> <p>Wliere it was not claimed that the running-board of the car upon which an accident happened, or the running-board or roof of any other car of the train was out of repair, it was error to allow plaintiff to show, as an excuse for his not using the running-board on the occasion of the accident, the lack of repair of running-boards on freight trains in general, in comparison with that of the roofs of freight cars off the running-boards.</p>

<p>(1) Probate Law and Practice. Liability for Debts of Intestate. Descent. Ancestral lístate. General Heirs.</p> <p>As affecting their liability for the payment of the debts of an -intestate out of the real estate to which they succeed, the law makes no discrimi■n in favor of either, as between heirs of ancestral estate and genleirs, but the burden should be divided proportionally between the ____classes of heirs.</p> <p>(2) Probate Law and Practice. Equity.</p> <p>Equity will control the execution of a decree of a Court of Probate upon a proper statement for equitable relief; and when as between classes of heirs questions arise which affect the equitable marshaling of debts and assets, equity will intervene.</p>

<p>(1) Agency. Evidence. Proof of Agency by Admissions of Agent, lies gesttc.</p> <p>An officer charged with the service of a writ entered the outside door of the. rear part of a theatre, where he was met by the manager, with two other men, who stood against the door to the stage and-refused to allow the officer to enter it. In an action against the principal to recover damages upon the ground. that his agent prevented the service of the writ:—</p> <p>Held, that as there could be no inference of authority as a matter of law from the principal to his agent to do the act complained of, and as there was no evidence of express authority, declarations of the agent were inadmissible to prove his agency.</p> <p>(2) Service of Process. Breuldng Inner Doors.</p> <p>Held, further, that as the building was not a dwelling-house, and the officer had entered the outer door, he had the right under a valid precept, 'to break doors-and command sufficient force to enter, having requested admittance which had been refused; hence the cause of plaintiff’s injury, if any, was the failure of the officer to serve his process.</p>

<p>(1) Negligence. Injuries received en ventre sa mere. Actions. Survival.</p> <p>As no action can be maintained by a person for injuries received by him while en ventre sa mere, his next of kin cannot, under Gen. Laws cap. 233, § 14, maintain an action therefor after his death.</p>

<p>(1) Interpleader. Contracts. Bankruptcy. Partnership.</p> <p>A. contracted with B. & 0., copartners, to sell to them a saloon for $1,400, $400 to be paid in cash and the property to remain subject to a mortgage to D. of $1,000. There being uncertainty whether B. & 0. could obtain a license, it was agreed that A. should deposit a bill ofjsale with D.; that B. & C. should deposit $200 with D. on account of the purchase, to be held by him until a license should be granted, when he should deliver the bill of sale to B. & 0. upon their payment of $200 more, and that D. should then pay the $400 to A.; but if the license was refused, then he should pay back the $200 to B. & C. and return the bill of sale to A. The $200 was deposited, which sum was furnished by B., and the bill of sale was deposited by A. B. & C. applied for a license, which was granted April 29, 1899 ; but on April 20, 1899, B. filed his petition in bankruptcy, upon which he was adjudged a bankrupt. After the petition B. & C. refused to complete their contract, and A. surrendered possession to D., the mortgagee and custodian of the bill of sale, electing to claim the $200 in D.’s hands. The trustee of B. also claimed the sum as assets of the firm. On interpleader :—</p> <p>Held, that after the granting of the license A. had the right to treat the contract as executed, and became entitled to the sum.</p> <p>Held, further, that, under section 5 (h) of the bankruptcy act, the bankruptcy of one partner does not involve the partnership property ; and as B. paid the sum for the partnership, it did not belong to him simply because he paid it.</p>

<p>Bill in Equity seeking the construction of a will. The facts are stated in the opinion.</p>

<p>(1) Pleading and Practice. Declarations.</p> <p>A declaration alleged that plaintiff had a crop of growing potatoes; that he purchased of defendants Paris green, which they warranted to be pure and that it would kill the potato-bugs on plaintiff’s crop of potatoes ; that he applied said Paris green in a reasonable and proper manner, but that it was impure and of' insufficient strength and did not kill the bugs, and that defendants knew at time of sale for what purpose plaintiff intended to use the article. On demurrer :—</p> <p>Held, that the declaration sufficiently set out the damages suffered by the plaintiff.</p> <p>(2) Pleading and Practice. Damages.</p> <p>Damages alleged in a declaration to have been sustained as the result of particular causes therein set forth must, upon demurrer, be taken as true. Objections for remoteness and uncertainty should be made to. such claim on the trial.</p> <p>(3) Pleading and Practice. Pleading in Alternative.</p> <p>A count which sets out that defendants “expressly or impliedly warranted” is bad, as stating material facts in the alternative.</p>

<p>Trespass on the Case for malicious prosecution.</p>

<p>Petition for a New Trial on the ground of newly-discovered evidence. The facts are stated in the opinion.</p>

<p>(1) Trespass guare clausum.*</p> <p>Trespass Quare Clausum Fregit, tried before Mr. Justice Rogers on waiver of jury trial. Heard on defendant’s petition for a new trial. New trial denied.</p>

<p>(1) Mortgages. Evidence.</p> <p>Where, in an action to foreclose a mortgage given and recorded twenty-five years ago, the transfer to complainant’s intestate was not recorded and the transfer, mortgage, and notes secured by it are said to be lost, the complainant must establish his claim by clear proof or relief will be denied.</p> <p>(2) Mortgages. Foreclosure, Lost Documents. Evidence.</p> <p>In an action to foreclose a mortgage given .twenty-five years ago, which complainant claimed was lost, the defendant, grantee of the mortgagor, was allowed to testify that when he purchased the land the mortgagor said the mortgage was given to his physician and friend to keep creditors oil; that they went to the friend’s office, who took them to the store of complainant’s intestate, where the latter went to his safe and took out the mortgage and gave it to the mortgagor, who handed it to the defendant who kept it until it was burned at his mill:—</p> <p>Held, that while neither the mortgagor nor defendant as his grantee would be allowed to set up fraud in the deed to avoid it in the hands of complainant, the evidence was admissible to explain the loss and destruction of the mortgage and why it was not in the possession of the plaintiff.</p> <p>(3) Mortgages. Stale Claim.</p> <p>Where a mortgage was twenty-four years old when a bill to foreclose it was filed, and no payment of either principal or interest had ever been made or demanded, and, while a portion of the property-was claimed and possessed adversely to the mortgagor and his grantee for a time, the grantee had had actual possession for more than twenty years, the claim is stale, and a bill to foreclose will be dismissed.</p>

<p>(1) Equity. Injunction. Leases. Construction.</p> <p>A. leased by instrument in writing certain premises to B., “together with power not exceeding six horse for the conduct of the lessee’s business— that of a steam laundry — also steam for washing-machines and dry-room, also all water for use in the business.</p> <p>“In case of any interruption or stoppage of power, the lessors agree to fumisli steam sufficient to run a small engine — to he furnished by the lessee — in lieu of the six horse above mentioned.</p> <p>“All power furnished by the lessors in excess of six horse power will be charged at the rate of seventy-five dollars per horse power, and the lessee hereby agrees to pay for any excess of said stipulated six horse power at the rate of seventy-five dollars per horse power at the time of payments provided for the rent agreed upon.” Tlie respondent threatened to cut off the lessee’s supply of power and steam, on the ground that he was using steam in excess of six horse power :—</p> <p>Held, that the words “power” and “steam” were used in the lease for different purposes and to accomplish different ends, the one to be in addition to the other, and that the lessee was not limited in the amount of power and steam combined to six horse power, but that the amount of steam was only limited to its use for washing-machines and dry-room.</p> <p>Held, further, that the complainant was entitled to a permanent injunction against the respondent.</p>

<p>Trespass on the Case for negligence. The facts appear in the opinion.</p>

<p>Assumpsit. The facts are stated in the opinion.</p>

<p>(1) Equity. Bes Judicata.</p> <p>Where one incloses a tract of land by a fence he exercises dominion over the whole of it, and a judgment in an action of trespass brought by one claiming a right in the entire tract is conclusive of the right of the plaintiff in the whole tract.</p>

<p>Trespass Quare Clausum. The facts are stated in the opinion.</p>

<p>(1) Negligence. Professional Skill. Physicians and Surgeons. Evidence.</p> <p>Whether a physician used proper professional skill and diligence in treating a patient is a question which must be determined by the testimony of experts in medicine and surgery.</p> <p>(2) Negligence. Professional Skill.</p> <p>An error of judgment on tlie part of a physician in the treatment of a patient is not enough to sustain an action for negligence for injuries resulting therefrom.</p> <p>(3) Neio Trial. JEncl to Litigation.</p> <p>Where a case has been tried five times with varying results, nine years having elapsed since the cause of action accrued, and two verdicts for the plaintiff have been set aside as against the evidence, several witnesses having in the mean time deceased, the court will order judgment entered for defendant.</p>

<p>(1) Neiv Trial. Appellate and Common Pleas Divisions. Appointment of Auditors. “Decision” (of Common Pleas Division) “to be Final.”</p> <p>The decision of the Common Pleas Division rendered upon the report of an auditor, under Gen. Laws cap. 245, § IT, is final and cannot be reviewed by the Appellate Division upon petition for new trial. Hence the order of the Common Pleas Division vacating its decision theretofore rendered upon the report of an auditor and assigning the case for hearing on exceptions of defendant cannot be reviewed by the Appellate Division.</p>

<p>Appeal from decree of a Probate Court.</p>

<p>(1) Bank Stock. Notice. Holders for Value. Transfer. Bxecutors and Administrators.*</p>

<p>(1) Building and Loan Association. Withdrawal of Stockholders. Notice. Statutes. Chapter 181, Laws of Minnesota.</p> <p>The by-laws of a building and loan association incorporated under the laws of Minnesota, cap. 131, provided that members holding stock in class “E” after sixty days’ notice might withdraw their stock at the maturity of any dividend coupon after three years from the date of their certificate, and that the holder should receive one hundred dollars, together with the amount of any due and unpaid coupon. Chapter 1'31, section 27, provided that “all withdrawing shares shall be subject to a pro rata charge of such losses (impairing the capital) with those remaining undrawn ” :—</p> <p>Held, that after the notice of withdrawal had expired the claim of the retiring member was beyond any assessment or power of diminution by the corporation. The amount to be paid had then become fixed, and must-be paid in its order. The status of the member had been changed from that of a stockholder to that of a creditor.</p>

<p>Bill in Equity seeking an injunction on grounds set out in full in the opinion.</p>

<p>(1) Water-works. Municipal Corporations. Good-Will. Monopoly.</p> <p>The pleadings in a suit in equity, brought by a municipal corporation against a corporation supplying' the former with water under a contract made with the latter’s assignor, raised the issues whether the whole or what part'of defendant’s system could be conveyed to the town as reasonably necessary and useful for supplying water to the town and its inhabitants, and what would be a fair and reasonable price for the same. On exceptions to the report of a master :—</p> <p>Held, that it was error to allow any sum for the good-will of the plant. As the defendant had an exclusive franchise, it had no good-will, for its customers were retained by compulsion, not by voluntary choice.</p> <p>(2) Contracts. Non-performance. Damages.</p> <p>Held, further, that, although by the contract with the defendant’s assignor the town was not obliged to buy less than a complete system, yet if the defendant could not sell a complete system, but had portions of a system available to the town, by the offer of the bill and the acceptance of the answer the town was bound to take and pay a fair price for that; hence there was no place for damages for non-performance of the contract in the computation of the amount to be paid.</p> <p>(3) Water-works. Reservoirs.</p> <p>Held, further, that the fact that the reservoir which supplied the waterworks also supplied the water-works of another town did not render the system incomplete, as the supply was ample for the requirements of both, but that the complainant town was not compelled, either under the contract or the offer in the bill, to purchase the whole water-supply, which was beyond its need, but that the case would be sent to a master-to apportion the reservoirs and water-supply.</p> <p>(4) Franchises. Damages.</p> <p>By the contract with defendant’s assignor, the town granted him the exclusive right to use the public streets for the purpose of laying water-pipes for the period of fifty years for the purpose of selling water therefrom and the use of all water-pipes then owned by the town for said term of fifty years, or until the town should avail itself of the privilege reserved to buy said water-works :—</p> <p>Held, that the exclusive right was given for fifty years ; the right to use the town pipes for fifty years, or until the town should elect to purchase.</p> <p>Held, further, that in estimating the value of the plant upon its purchase by the town under the option given the latter by the terms of the contract, the franchise given defendant must he considered.</p>

<p>(1) Statutes. General and Special Provisions.</p> <p>Clause 2, section 4, of the charter of the city of Central Falls, passed February 21, 1895, was not repealed by the general provisions of Gen. Laws cap. 40, § 34, passed February 1, 1896.</p> <p>(2) Police Constables. Tenure of Office. Power of Removal.</p> <p>Under tlie provisions oí clause 2, section 4, of the charter of the city of Central Falls, a member of the paid police department cannot be removed from office except irpon the preferring of charges and the hearing provided for in the act. Hence the mere failure of the board of aldermen to re-elect a member of the paid police department does not, ip so facto, vacate his appointment.</p>

<p>(1) Constitutional Law. Bight to grant New Trial. Verdict against Evidence. “Due Erocess of Law.” Jury Trial.</p> <p>The Appellate Division of the Supreme Court has the constitutional right to grant a new trial in a civil case, when in its opinion the verdict is against the weight of the evidence.</p> <p>Gen. Laws cap. 251, §§ 5, 11, authorizing the Appellate Division to grant a new trial “for reasons for which a new trial is usually granted at common law,” is not violative of the constitution of Rhode Island, article I, section 10, or of the fourteenth amendment to the constitution of the United States, as depriving a person of property without due process of law; nor is it in contravention of the constitution of Rhode Island, article I, section 15, providing that the right to trial by jury shall remain inviolate.</p> <p>At the time of the separation of the American colonies from the mother country, the common law of England authorized the granting of a new jury trial in a proper case, on the ground that the former verdict was against the weight of the evidence; and this fact was a common-law reason at the time of the adoption of the constitution of 1843, within the meaning of Gen. Laws cap. 251, § 5.</p> <p>While Gen. Laws cap. 251, § 5, prescribes reasons, it does not prescribe methods of procedure; nor can the meaning of the former term be stretched to include the latter.</p> <p>It is not necessary, in order not to contravene the constitution either of Rhode Island or the United States, that the justice presiding at the jury trial should first pass upon the question whether the verdict is against the weight of the evidence, or that he should sit with the court 'required to pass upon that question in granting a new trial for that reason.</p> <p>Sketch of the history of awarding new trials in the colony and State.</p>

<p>(1) Equity. Finding by Jury. Estoppel. Bes Judicata.</p> <p>Pub. Stat. R. I. cap. 192, § 9, relating to issues of fact in equity causes, provides that “The verdict of the jury upon questions of fact involved in the issues submitted to them shall be conclusive thereupon, unless set aside by the court for cause and a new trial granted upon such or amended or other issues to be framed by said court”</p> <p>Held, that, as no reference to a finding of a jury was made in the decree based upon the verdict, and no new trial granted upon the finding, the inference was that it was set aside for cause, an apparent cause being that it was not material to the issue of the bill, and the court expressly negativing the conclusiveness of the finding by providing that the decree should be “ without prejudice ” to a suit based upon a cause of action in contravention of such finding.</p> <p>Held, further, that the finding was not an estoppel to such suit subsequently brought.</p> <p>(2) Equity. Performance of Conditions.</p> <p>Held, further, that such finding- could not be taken as conclusive under a plea of performance of conditions of a bond, upon which the present •action was based, as such action would amount to treating it as an estoppel contrary to the rule above stated, and would also nullify the decree of the court that such decree was entered without prejudice to the party to bring such suit upon the bond.</p>

<p>Bill in Equity seeking the construction of a will.</p>

<p>(1) Telephones. Extension Sets.</p>

<p>Mandamus. The facts are fully stated in the opinion.</p>

Petition for New Trial -upon the decree of a justice of the Appellate Division confirming the decree of a Probate Court approving the report of commissioners to set off dower.

<p>(1) Pleading and Practice. Municipal Corporations. Highways. Liability of Municipality for Injuries to Private Property.</p> <p>The same rule of law protecting the right of property in aii individual against invasion from another individual protects it from similar aggressions on the part of municipal corporations.</p> <p>In trespass on the case a declaration charged that “the defendant city through its agents and servants, wholly unmindful of its duty in the premises,. . . . while at work for said city on . . . streets, filling in said streets at the premises of the plaintiff, so negligently, wrongfully, and improperly did said work and filling in that they threw large quantities, of earth and gravel upon the land of the plaintiff and raised said land above the entrance to his store and dwelling, and covered up his cellar windows, and caused the surface water to flow into his cellar . . —</p> <p>Held, on demurrer, that the declaration stated a case, as it was not based upon the failure of the city to discharge any statutory duty devolved upon it, but solely on its common-law liability for the doing of a wrongful act.</p> <p>Distinguishing Smith v. Tripp, 13 R. I. 152.</p>

<p>Trespass and Ejectment. At the trial defendant requested the court to charge as follows:</p> <p>1st. “ If the jury find that the defendant entered into possession of the store under its mortgage, with the knowledge and acquiescence of the plaintiff, who afterward accepted rent, the relation of landlord and tenant existed, and the defendant was neither a tenant by will or sufferance.”</p> <p>2nd. “If the jury find at the mortgage sale the plaintiff’s agent represented that the purchaser .could continue in the store as a tenant upon the terms of the then hiring, and afterward the defendant, relying on that statement, entered into possession of the store and paid rent, the defendants were not tenants at will.”</p>

<p>(1) Bankruptcy. Conflict of Laws. Receivers.</p> <p>The proceeding in the State court under Gen. Laws cap. 177, § 27, as amended by Pub. Laws cap. .655, passed at the January session, 1899, seeking the dissolution of a corporation and the appointment of a receiver, is practically a proceeding in insolvency. As such it must yield to the paramount authority of the national bankrupt act. lienee the trustee appointed in bankruptcy proceedings is entitled to the funds of the bankrupt in the hands of a receiver appointed by the State court.</p> <p>The word judgment in the United States bankruptcy act, section 67, clause (f), providing that' “all levies, judgments, attachments or other liens obtained through legal proceedings against a person who is insolvent at any time within four months prior to the filing of a petition in bankruptcy against him, shall be deemed null and void in case he is ' adjudged a bankrupt, and the property affected by the levy, judgment, .attachment or other lien, shalTbe deemed wholly discharged and released irom .the same and shall pass to the trustee . . ,” is sufficiently broad to apply to the judgment of this court in appointing a receiver of a corporation under Gen. Laws cap. 177, § 27, and the judgment is nullified and avoided by the adjudication of bankruptcy against the corporation.</p>

<p>Bill in Equity to enforce stockholders’ liability.</p>

<p>(1) Mandamus. Municipal Corporations. School Committee.</p> <p>Gen. Laws cap. 54, § 9, makes it tlie duty of the town treasurer to receive all moneys appropriated by the State or town for public schools and provides that “he shall pay the same to the order of the school committee.” The charter of the city of Pawtucket, passed in 1885 (Pub. Laws cap. 414, § I, clause 2), provides that “the expenditures of the moneys appropriated for public schools shall be by and under the direction of the school committee of said city.” The city council of Pawtucket by joint resolution appropriated specific sums for the purpose of making repairs to various school-houses, specifying the amounts applicable to each school-house. The city treasurer refused to pay the claim of the petitioner against the city, which had been duly passed upon and ordered paid by the school committee, on the ground that it did not appear to what appropriation it should be charged:—</p> <p>Held, that it was competent for the school committee, in the doing of the work for which said appropriations were made, to make such contracts therefor, either as a whole or in parts, as in their judgment should seem proper, and that the petitioner was entitled to a writ of mandamus to compel the city treasurer to pay the bill of the petitioner.</p>

<p>Appeal from the order of a district council in a highway proceeding. The facts are stated in the opinion.</p>

<p>(1) Trust Fwids. Change of Investment. Fxpenses.</p> <p>Where the change of investment of a trust fund was of benefit both to the life-tenant and the ultimate legatees, there should be an apportionment of the expenses dependent upon the relative benefits resulting from the change.</p> <p>General rules relating to charging expenses of a change of investment of trust funds.</p>

<p>(1) Landlord and Tenant. Misjoinder of Parties. Pfew Trial. Verdicts.</p> <p>A party defendant cannot procure a new trial on the ground of misjoinder of parties plaintiff, since Gen. Laws cap. 233, § 23, provides that no action shall he defeated by misjoinder of parties and that the misjoined party may he dropped at any stage of the case. The only question, therefore, is whether the verdict should have been in favor of one party or both.</p> <p>(2) Landlord and Tenant. Ejectment. Attornment.</p> <p>Where a lease is given while the premises are in the possession of another under a tenancy, without attornment, the owner is the proper party to give notice to quit and to sue in ejectment.</p>

<p>(1) Bankruptcy, Receivers. Comity. State and Federal Courts.</p> <p>The fund which the trustee in bankruptcy is entitled to receive from the receiver of the bankrupt appointed in proceedings under Gen. Laws cap. 177, § 27, as amended, before any proceedings in bankruptcy had been taken, is not the whole fund, but only the balance over the receiver’s fees and expenses which will be allowed to him by the State court.</p> <p>(2) Comity. State and Federal Courts.</p> <p>No consideration of comity requires that the State court should send its receiver to the federal court for the purpose of having his fees allowed, and mutual convenience requires that the matters preliminary to the ascertainment of the fund belonging to the trustee from the State court should be settled there.</p>

<p>(1) Receipts. Contracts. Varying Written Instrument by- Parol.</p> <p>Where a receipt, in addition to the acknowledgment of the payment of money, embodies an agreement as well, then, in so far as it contains an agreement, it cannot be varied or controlled by parol evidence and is not open to explanation unless for uncertainty or ambiguity in its terms.</p> <p>Plaintiff having been injured while in employ of defendant, as he claimed through their negligence, received a certain sum from defendant and gave the following receipt: “Received of A. B. six and ^ dollars in full settlement for damages sustained by falling into ice-pit at Canal street:”—</p> <p>Held, that the receipt was plain and unambiguous, covering and including all damages arising out of the claim in suit, and was not subject to any explanation.</p> <p>(2) Pelease.. Seals.</p> <p>No set form of words is essential to constitute a release, nor need it, either at common law or under Gen. Laws cap. 202, § 12, be under seal.</p>

<p>(1) Police Officers. Gertiorari. The Board of Aldermen of the City of Central Falls.</p> <p>A petition for a writ of certiorari to review the action of the board of aldermen of Central Falls set forth that the petitioner, a police officer of said city, was suspended by the mayor on charges preferred against him upon which he was tried by the board and dismissed from the police force. On motion for the w,rit, alleging various causes of error:—</p> <p>Held, that in the absence of any provision of the charter or of the Public Laws requiring the mayor to preside at meetings of the board of aider-men, he was not required so to preside.</p> <p>Section 4, clause 2, of the -charter (Pub. Laws 1895, cap. 1421) provides that all removals of members of the paid police force shall be by the board of aldermen upon charges in writing, after notice and hearing :—</p> <p>Held, that no provision of the section required the aldermen to be sworn before proceeding with the trial.</p> <p>Held, further, that the section was not obnoxious to article XI, section 3, of the constitution of Rhode Island, “Of impeachments,” since the article was not intended to cover officers elected by towns.</p> <p>Held, further, that the section was not obnoxious to article I, section 10, of the constitution of Rhode Island, nor to article XIY of the amendments to the constitution of the United States, relating to due process of law, and no special oath in addition to the general oath taken by the board upon entering' upon their offices was required for the validity of their action.</p> <p>(2) Police Officers. Charges. Waiver.</p> <p>The re-instatement of a police officer upon the force by order of the court after decision in his favor in proceedings taken seeking such restoration is no waiver of the right to prefer charges against him by the city for misconduct prior to the re-instatement.</p> <p>(3) Oertiorari.</p> <p>Gertiorari does not lie to review findings of fact where any competent evidence is introduced to support the charge ; and where the petition does not show the contrary, the court will presume that all things were duly performed.</p>

<p>Trespass on the Case for -negligence.</p>

<p>(1) Implied Contracts. Novation.</p> <p>A promise upon consideration to the debtor oí another to pay the debtor’s creditor the amount of his claim enures to the benefit of the creditor.</p> <p>{2) Election of Remedies. Implied Contracts. Novation.</p> <p>The bringing- of a suit in equity to set aside a deed, part of the consideration of which' was .the promise of the grantee to pay the grantor’s debt to the plaintiff, is not in itself such an election of remedies as to waive the provision in his favor arising out'of the grantee’s promise where the suit hi equity has not proceeded to a final decree.</p> <p>(3) Implied Contracts. Consideration.</p> <p>Where a party promises another, in consideration of the transfer of certain real estate to him, to pay the grantor’s creditor the amount of his claim, the consideration of the deed is such promise, and the law will not inquire as to the relative value of the land to the debt.</p>

Bill in Equity seeking an injunction on grounds set forth in opinion. Heard on re-argument of this case decided in opinion reported in 23 R. I. 216. .

<p>Certiorari. The facts are stated in the opinion.</p>

<p>Trover. The facts are stated in the opinion.</p>

<p>Assumpsit. Heard-on demurrer to replication.</p>

<p>Trespass on the Case. The facts are stated in full in the opinion.</p>

<p>Probate Appeal from the decree of a Probate Court confirming the report of commissioners upon an insolvent estate.</p>

<p>Bill in Equity seeking to declare a trust.</p>

<p>Indictment charging the defendant with the offence set forth at length in the opinion.</p>

<p>Bill in Equity seeking the construction of a will.</p>

<p>Mechanic’s Lien.</p>

<p>(1) Master and Servant. Assumed Bisks. Dangerous Appliances.</p> <p>A servant, directed to clean out an open space of about thirteen inches underneath certain vats in a brewery, who crawls through the opening leading thereto and while working therein becomes wedged and bound, owing to his size and weight and the fact that the water which he was using saturated his clothes and caused them to rumple and bind against the supports, cannot recover for the injuries sustained, since his own size and the size of the hole and the space in which he was required to work were facts known to him at the time, and hence were risks assumed by him as incident to his employment.</p> <p>(2) Assumed Bisks. Natural Laws. Imputed, Knowledge. Master and Servant.</p> <p>Where a servant is neither of tender years nor lacking in ordinary mental capacity, the effect naturally resulting from the operation of a familiar physical law will be.presumed to be within his knowledge so as to bring such effect within the risks incident to his employment.</p> <p>(3) Pleading and Practice. Allegation of “ Due Gare.”</p> <p>Where a declaration as a whole shows that the plaintiff could not have been in the exercise of due care, the mere fact that it alleges that he was does not save it from being demurrable.</p> <p>(4) Exception to Buie of Assumed Bisk.</p> <p>Discussion of cases of emergency within exception to rule of assumed risk.</p>

<p>Mechanic’s Lien.</p>

<p>(1) Trover. Contracts. Evidence. Measure of Damages.</p> <p>In an action of trover for the conversion of a machine which the plaintiff claimed as his property under an oral contract entered into with the defendant, where the terms of the contract are in dispute the defendant may properly inquire of the plaintiff in cross-examination as to whether the machine was held by the latter as security for an indebtedness and as to the state of the account between the parties, for the purpose of negativing the plaintiff’s claim of right to possession, and for the further purpose of fixing the measure of damages.</p> <p>(2) Trover. General and Special Otoner. Damages.</p> <p>It is not necessary in an action of trover that the absolute title to the property should he in the plaintiff; it is enough if he stands in such a relation to it that he is entitled to the possession of it and will he liable ultimately to the true owner for its value unless it is returned to him.</p> <p>As against the general owner, however, or one claiming under him, the owner of a limited interest can recover only the value of such interest.</p>

<p>Bill in Equity seeking i’elief set forth in the opinion.</p>

<p>Petition seeking the construction of a will.</p>

<p>(1) False Arrest. Malicious Prosecution. Pleading and Practice. Actions. JSTeio Trial.</p> <p>Arrest under a writ fair on its face, issued from a court of competent jurisdiction and served by a duly-qualified officer, is not false imprisonment.</p> <p>A principal who causes an arrest upon lawful process is not liable in an action for false imprisonment, although the action was never entered in court.</p> <p>Semble, the proper remedy for one arrested under such circumstances is an action for malicious prosecution.</p>

<p>Assumpsit on a policy of life insurance.</p>

<p>Application for a writ of attachment against a deponent who refused to answer certain questions before a commissioner on the ground that her answers would criminate her. Certified by commissioner to the court, under rule 34 of the Rules in Equity.</p>

<p>Claim for Jury Trial in the matter of the layout of a highway.</p>

<p>Bill in Equity to' assign dower in certain property.</p>

<p>(1) Prolate Law and Practice. Administration. Appeals. Amendments.</p> <p>While the court, in the Division appealed to, has the power, under Gen. Laws cap. 248, § 6, to grant amendments to reasons of appeal from decrees of Probate Courts, it may rightfully refuse to do so where the reasons, as amended, would not state a case.</p> <p>(2) Prolate Law and Practice. Husland as Administrator of Wife.</p> <p>Where the hubsand is under no disability he is entitled as of course, under Gen. Laws cap. 212, § 9, to administration of the personal estate of his wife, deceased intestate.</p>

<p>(1) Contracts. Conflict of Laws.</p> <p>Anote dated in Woonsocket, R. I., was delivered to plaintiff in Boston, Mass. The consideration was an indebtedness arising out of transactions in Boston, carried on by plaintiff as broker for defendants, in certain stocks. Defendants gave orders to plaintiff by telephone or letter from Woonsocket. The acts of the plaintiff as broker were performed in Massachusetts :—</p> <p>Held, that the note was a Massachusetts contract, and unless the dealings were valid in Massachusetts the note was without consideration.</p> <p>(2) Conflict of Laws. Lex Fori. Contracts.</p> <p>A contract valid in the place of its inception, yet contrary to the public policy of Rhode Island, will not be enforced in the courts of this State.</p> <p>(3) Stoclcs and, Stoclc-Brolcers. Wagering-Contracts.</p> <p>Pub. Laws Mass. 1890, cap. 431, § 2, provides : “ Whoever contracts to buy or sell upon credit or upon margin any securities or commodities, having at the time of contract no intention to perform the same by the • actual receipt or delivery of the securities or commodities and payment of the price, or whoever employs another so to buy and sell on his behalf, may sue for and recover in an action of contract from the other party to the contract, or from the person so employed, any payment made or the value of anything delivered: provided, such other party or other person so employed had reasonable cause to believe that no intention to actually perform existed.” Section four of the statute prescribed certain rules of evidence :—</p> <p>Held, that the material question under this section was whether one party to the transaction intended that the other should make actual purchases and sales of stock on behalf of the former and should actually receive and.deliver the same, and if not, whether the other party had reasonable cause to believe that the intention of the former was not so to purchase and receive or the circumstances were such that a knowledge of such intention might reasonably be imputed to him.</p> <p>Held, further, that when a party bought and sold himself, his intention to take and deliver was important; so, when he employed another to buy and sell, his intention as to what the agent should do was material.</p> <p>Held, further, that the fourth section of the statute had application only in the courts of Massachusetts, the court in the case at bar being concerned only with the implication of the statute making void the contracts which it describes.</p> <p>(4) Wagering-Gontracts. Public Policy.</p> <p>While in Rhode Island, no statute condemns wagering-contracts, yet the spirit of the laws making- gambling, bets, and wagers misdemeanors makes it clear that public policy forbids the enforcement of all wagers by the courts.</p> <p>(5) Stocks and Stock-Brokers. Marginal Transactions. Wagering-Gontracts.</p> <p>It is not unlawful to buy stocks with the intention of selling again at a profit, nor to do this through a broker, nor to allow the broker to hypothecate the stock in the meantime to raise part of the purchase money. The law does require that the stock should be in existence, and that the customer should acquire such control by the purchase as to be able to deliver the title to it if called for when he sells. It makes no difference whether the certificates are delivered to the customer if his agent, the broker, acquires dominion over them.</p> <p>The bargain must contemplate the actual delivery, if desired, and the actual payment of the whole price, if demanded. It must confer on the purchaser the right to have the stock transferred to him on payment for it. If it does it is a purchase, whether the stock is actually transferred to him or not.</p> <p>If the agreement between the parties does not contemplate an actual purchase, but merely a payment by one party to the other, or by the ostensible purchaser to his broker, if the stocks decrease in market value; and a payment by the broker to his customer if the price rises in the market— then, no matter what form the transaction is put in, verbally or in writing, it is merely a wager on the fluctuation of the market values and not enforcible at law.</p> <p>The question is not whether the parties privately intended to enforce the agreement or to fulfill it, but what they bound themselves to do.</p> <p>(6) Wagering-Gontracts. Burden of Proof.</p> <p>Where the transaction is on its face a genuine one, the burden of proof is upon the party attacking it to show its falsity.</p>

<p>(1) Wills. Doioer. Partition. Remainders.</p> <p>Sammis y. Sammis, 14 R. I. 123, decided that one quarter’of the real estate of testator was not devised in fee by his will, and the income thereof was given to trustees to pay tlie same to the widow during life. It subsequently became necessary to sell the estate in á suit for partition, and one quarter of the proceeds was held subject to the trust for the widow. Upon the death of latter, the question arose as to the persons entitled to the fund:—</p> <p>Held, that the remainder was intestate property, the title to which vested in the heirs of testator upon his death.</p> <p>By Pub. Stat. cap. 230, § 18, the'proceeds of sale represented the respective interests of the heirs in the estate, excluding the widow of testator, whose claim for dower was barred by the gift of the entire income :—</p> <p>Held, further, that the widow of an heir whose husband died while the estate was held in trust was not entitled to dower, under the rule in Gardner v. Greene, 5 R. I. 104, in the share of the husband, his interest being in remainder.</p>

<p>Assumpsit for money had and received. The facts are stated in the opinion.</p>

<p>(1) Executory Contracts. Lunatics. Void and Voidable.</p> <p>An executory contract made with a person of unsound mind is voidable at the election of the latter or his guardian ad litem.</p>

<p>(1) Probate Law and Practice. Judgment Creditors. Citation to Executor. Suit on Pond.</p> <p>Gen. Laws cap. 220, § 22, providing that before suit upon a bond by a creditor he must first have his debt ascertained by judgment, unless the same shall have been allowed otherwise, and prove that demand has been made and that the executor or administrator has refused or neglected to satisfy the same, must be taken in connection with Gen. Laws cap. 218, $ 27, providing that no creditor can sue upon the bond unless the executor or administrator shall neglect or refuse to pay money in his hands to creditors or shall fail to show reasonable cause therefor after being cited before the Probate Court. '</p> <p>Hence, before an order for payment or distribution, a judgment creditor cannot bring suit upon the bond under Gen. Laws cap. 220, § 22, without showing a compliance with Gen. Laws cap. 218 § 27.</p> <p>Explaining Municipal Court v. McCulla, 21 R. I. 273.</p>

<p>Bill in Equity seeking to set aside an execution sale.</p>

<p>Trespass on the Case for negligence.</p>

<p>Indictment charging perjury 'upon facts set out in full in opinion.</p>

<p>Trespass on the Case for negligence.</p>

<p><1) Deceit. Dstoppel.</p> <p>In an action of deceit plaintiff charged that defendant induced him to take an interest in his business as a dentist for a term of years, representing it to be worth $20,000 a year, for which plaintiff was to pay him $1,000 and work in his office ; that after a trial of six months he found that the yearly business amounted to less than $5,000 a year. It appeared in evidence that defendant was ejected from the house, which he had represented as his own, where the business was carried on. On petition for new trial:—</p> <p>Held, that plaintiff was not estopped from setting up the falsity of the statements in an action of deceit by continuing to carry out the contract after he had knowledge that defendant had failed and was regarded as financially irresponsible, since these were not the facts set up as the basis of action.</p> <p>Held, further, that the period of six months during which plaintiff worked under the contract was not an unreasonable time, or so long as to be deemed to have affirmed the contract, notwithstanding the deceit.</p> <p>(2) Deceit. Damages.</p> <p>Held, further, that testimony relating to plaintiff’s income prior to the contract was properly admitted, as the damages would include both the loss of money and time put into the business, for both were within the contemplation of the parties and a part of the consideration given by plaintiff! to defendant.</p>

<p>(1) Bankruptcy. Tort Debtors.</p> <p>The purpose and spirit of the bankruptcy ae.t is to relieve honest debtors, when insolvent, from their money obligations, and not to free tortious debtors from liability for their wrongs.</p> <p>A judgment obtained in an action of trespass on the case for libel is not dischargeable in bankruptcy under chapter 3, section 17, of the United States bankruptcy act.</p> <p>(2) Bankruptcy. Merger of Action in Judgment.</p> <p>A cause of action is not so far merged in the judgment as to prevent its being shown, where the defendant claims to be discharged therefrom, in bankruptcy.</p>

<p>(1) Promissory Notes. Evidence.</p> <p>An irregularity in the introduction of evidence is not sufficient ground for a new trial, where the whole matter was gone into before the jury.</p> <p>(2) New Trial. Evidence.</p> <p>A new trial will not be granted because of the admission of immaterial and irrelevant evidence, where the answers could not have prejudiced the party excepting.</p> <p>(3) Demand Notes. Overdue. Questions of Law.</p> <p>Where the facts are few, simple, and undisputed, the question as to what is a reasonable time within which a demand note is overdue for purposes of negotiation is one of law for the court.</p> <p>(4) Demand Notes. Overdue for Purposes of Negotiation.</p> <p>A demand note providing for interest, which has run for eighteen months with no apparent reason for non-payment, and no payment of interest, must be taken as overdue for the purposes of negotiation.</p> <p>Explaining Guchian v. Newbold, 22 R. I. 219.</p> <p>(5) Jurors. Objections to Waived by going to Trial.</p> <p>Where a party goes to trial without inquiring as to the qualifications of a juryman, after verdict a new trial will not be granted on the ground that the juror was disqualified to serve.</p>

<p>(1) Bailroads. Statutes. Amendments. Accepting Amendments. Injuries by Fires. Damages.</p> <p>The New York, Providence & Boston R. R. Co. was chartered under the laws of this State by an act passed at the June session of the General Assembly, 1832. The charter was amended at the June session in 1836 in part as follows :</p> <p>“Section 2. Said corporation shall be liable to pay to the owner or owners, for all damages which may arise from the burning of houses, wood, hay or any other substance whatever, by fire communicated from the engines, cars or other vehicles of said corporation, damages equal to the value thereof, with all the lawful costs, to be recovered in an action of debt in any court competent to try the same.”</p> <p>The amendatory act also contained certain provisions necessary for securing to the corporation the privileges and immunities formerly granted them by their charter, and provided also that the company should within a prescribed time signify in writing their assent to the requirements and provisions of the amendatory act. This was not done in terms, but the company availed itself of the provisions in the amendment beneficial to itself</p> <p>Held, that the company by availing itself of the benefits conferred by one section was equally bound by the obligations of the other sections, since it could not accept the amendment in part and reject it in part.</p> <p>Held, further, that the words “owner or owners,” as used in the amendment, referred not alone to those whose land was bisected by the railroad bed, but applied also to those whose land was sufficiently near to the roadbed to have their land damaged by fire communicated from the engines of the railroad company.</p> <p>(2) Railroads. Merger. Assumption of Obligations. Construction of Statutes.</p> <p>The Hew York, Providence & Boston B. B. Co., a corporation of Bhode Island, was empowered to make a lease of its railroad property and franchises to the Hew YoTk, Hew Haven & Hartford B. B. Co., a corporation existing under the laws of Massachusetts and Connecticut, and the latter was empowered to accept said lease; but the lessee was to succeed to all the rights, privileges, and powers of the lessor, and be subject to the duties and liabilities imposed upon the same by its charter and the amendments thereto and the general laws of Bhode Island. At the January session, 1893, an act was passed whereby the stockholders of the Hew York, Hew Haven & Hartford B. B. Co., a corporation under the laws of Massachusetts and Connecticut, were made a corporation under that name in Bhode Island, with the powers, privileges, and franchises given that corporation by its charter not inconsistent with the laws of this State, and with the rights and subject to the liabilities imposed upon railroad corporations by the laws of this State. The general laws of Bhode Island contained no provision in regard to fires set by locomotives, as did.the public laws of Massachusetts and Connecticut, but section 5 of the charter provided that like proceedings should be had in regard to the condemnation of and compensation for land taken as' was provided for taking land by the charter of the Hew York, Providence & Boston B. B. Co. and the acts in amendment of and in addition thereto:—</p> <p>Meld, that while the charter granted by this State to the Hew York, Hew Haven & Hartford B. B. Co. did not refer in terms to the obligations and liabilities imposed by the charter of the Hew York, Providence & Boston B. B. Co., yet the pending legislation in this State as to the lease looking" to the consolidation of the two companies, and the provisions in the amendment of 1S89 of the Connecticut and Massachusetts charters that upon the retirement of the stock of a leased line all of the latter’s obligations should remain upon the Hew York, Hew Haven & Hartford B. B. Co., indicated that the intent of the Bhode Island charter was to allow the consolidation, but with the same obligations and privileges as had existed before.</p> <p>Meld, further, that section 2 of the amendment of 1836 of the charter of the Hew York, Providence & Boston B. B. Co. was not repealed by the charter, but was an existing duty, transferred to and binding upon the Hew York, Hew Haven & Hartford B. B. Co.</p> <p>Meld, further, that the liability under section 2 was not dependent upon the fire having been communicated by negligence on defendant’s part, and hence no allegation of negligence in the declaration was necessary, the case not being within the rule laid down in Smith v. R. R. Co., 10 B. I. 22.</p> <p>•(3) Procedure. Power of Legislature to Regulate.</p> <p>.It is within the province of the legislature to establish the form of action for the recovery of damages in a given case; and while that form may not be so well adapted to the purpose as others, it is not ground for demurrer.</p> <p>(4) Construction of Statutes. Preamble.</p> <p>In construing an act of the legislature the court will look at the language of the preamble in connection with the body of the act to arrive at an interpretation of the act.</p>

<p>Trespass for false imprisonment.</p>

<p>(1) Negligence.</p> <p>A declaration averred in two counts that plaintiff: was injured from falling upon ice on a sidewalk, which ice had formed from water (1) which, negligently collected upon its premises by its own act, defendant allowed to escape to the sidewalk in freezing weather; and (2) which it negligently permitted, so collected and under its control, to escape and become a nuisance. On demurrer :—</p> <p>Held, that the declaration stated a case.</p>

<p>Trespass on the case for negligence on facts set forth in the opinion.</p>

<p>(1) Street Railways. Master and Servant. Negligence. Assumption of Duty by Master to Servant.</p> <p>A declaration alleged that plaintiff was employed to remove snow from tracks of defendant; that he was conveyed in defendant’s cars to the place of employment and kept at work continuously for thirty-six hours, and exposed to extreme cold; that he was given insufficient food, and no warm drink or extra clothing; that when he began to suffer from the cold he was refused permission to leave oil work; that when unable to continue work he was ordered to enter and permitted to remain in one of the cars of defendant, without any protection from the cold and without food all night, and was not allowed transportation to his home. On demurrer:—</p> <p>Held, that it was a question for the jury, on the facts stated, whether or not defendant had assumed the duty of taking reasonable care of plaintiff while in its car, and of seasonably conveying him where he could be taken care of.</p>

<p>(1) Promissory Notes. Demand Notes Overdue for Purposes of Negotiation.</p>

<p>Debt by a creditor of a corporation against certain stockholders to enforce their liability under Gen. Laws cap. 180, § 12.</p>

<p>Mandamus against clerk of Common Pleas Division.</p>

<p>Trespass and Ejectment.</p>

<p>Ejectment. The facts are stated in the opinion.</p>

<p>(1) Bower. Inchoate Bight.</p> <p>Although an inchoate right of dower is not an estate but only a right of action, still it is in the nature of a lien upon real estate and is treated as an incumbrance to be protected.</p> <p>(2) Bower. Mortgages. Assignment to Third Parties.</p> <p>Complainant had an inchoate right of dower in an undivided half of certain real estate owned by respondent A. Two mortgages on the estate were held by C., but had been transferred to her in part by funds advanced by A. and they were under his control. One of the mortgages had been made by complainant’s husband, before her marriage; and the second after her marriage, in which she released dower. Her husband conveyed his half part of the puberty to A., but complainant did not join in the deed. Complainant brings her bill to redeem the mortgages and have them assigned to her under Gen. Laws cap. 201, § 1, to protect her contingent right of dower. A. objected on the ground that the mortgages were necessary to protect his interest and title</p> <p>Held, that complainant was entitled to redeem, as A. stood in the place of the mortgagor, and under the statute the requisition of an incumbrancer should prevail over that of a mortgagor.</p>

<p>(1) Negligence. Master and Servant. Assumed Bisks.</p> <p>In an action for negligence against a master by a servant the declaration alleged that the servant was directed to clean out an open space of about thirteen inches, underneath certain vats in a brewery; that it was necessary to assume a cramped position and to worm in to the space ; that the space was irregular, and there were blocks or supports which made it difficult for him to get in or move around; that he felt and knew as he worked that it was exceedingly difficult to move his body along the different projecting blocks ; that he was unable to realize his danger because his attention was taken up with his difficult work; that he became wedged and bound, owing to his size and weight and the binding of his clothes against the supports, and was injured</p> <p>Held, that the facts alleged were necessarily known to the servant as he entered, and hence were risks assumed as incident to the work.</p> <p>Held, further, that the facts stated showed no emergency connected with the work which would bring the case within the exception to the above rule.</p>

<p>(1) Of Boundary Lines of Land Covered by Public Tide-Water. Plats. Estoppel.</p> <p>In equitable proceedings under Gen. Laws cap. 266, for the settlement of the boundary lines of lands covered by public tide-water, it appeared that all of the tide-flowed land embraced in the suit lay between upland formerly owned by Joseph Burgess and the harbor line as now established. Joseph Burgess died in 1829, and his farm was divided by commissioners appointed by the Court of Probate in 1830-1. The commissioners set off to J. P. B. lot 6 ; to F. W. lot 5, next south of lot 6 ; to D. C. lot 4, next south of lot 5; and to J. B. lot I, next north of lot 6 ; respondent II. acquired title to the tide-flowed lands appertaining to lot 6, and one Benjamin Allen acquired title to lots 4, 5, and 1, and to the tide-flowed lands appertaining thereto. These lots, as marked on the partition plat, extended only to high-water mark, and they were set off by their numbers on the plat, to which reference was had for quantity and boundaries. Subsequent to the partition, J. P. B. quitclaimed to Benjamin Allen all his interest north of his north line, describing the course, “ and to continue said course to the channel of Providence river, or so far as they have a right so to do.” This was accepted by Benjamin Allen.</p> <p>Said Allen had his upland and his interests in tide-flowed land platted in 1832 and again in 1856, both of which plats extended eastward to the harbor line as then established. The north line of the J. P. B. lot on said plats, being the southern line of the Allen north section, was delineated as a straight line from the P. turnpike to the harbor line as given on thé Burgess division plat, which line had been agreed on by J. P. B. and Benjamin Allen. The south line of the J. P. B. lot, being the northerly line of the southern section of the Allen land on said Allen plats, was nearly parallel with the north line of said J. P. B. lot as delineated on the Joseph Burgess partition plat on the same course to the harbor line. On said Allen plats a street named Friend street was delineated on the north side of the southern section of the Allen land, being the south line of the J. P. B. land, half of said street being taken from each proprietor. The Allen land was conveyed by mesne conveyances to the petitioners. All of the conveyances made by the petitioners’ predecessors in title described their north line as bounding on land of J. P. B. while recognizing the Allen plat, and the only conveyance made by petitioners bounded on the center line of Friend street and made no mention of the J. P. B. land. Neither respondent Hall nor his predecessors ever referred to the Allen plats, nor did respondent Hall or any of his predeeessors derive title in any way from petitioners or their predecessors by instrument depending upon the Allen plats</p> <p>H'eld, that boundary lines so far as fixed between ancestors in title would bind their successors; but unless the ancestors fixed rights and boundaries, there was no privity between successors merely because the land once belonged to a common ancestor.</p> <p>Held, further, that the division of the Joseph Burgess estate in 1830-1 bounded the heirs merely as to the land above high-water mark, at which mark the boundary lines fixed in said division stopped; so there was no privity between the heirs of Joseph Burgess or their successors in title by virtue of said division outside of such high-water mark.</p> <p>Held, further, that, as neither Hall nor his predecessors had ever acted on the Allen plats with the acquiescence of petitioners so that it would be inequitable for petitioners not to hold themselves bound by them, the petitioners were not estopped by said Allen plats.</p> <p>Held, further, that respondent I-lall’s southerly line had not been established before the commencement of the proceedings, and that the report of the commissioners should be approved.</p>

<p>Assumpsit for breach of contract.</p>

<p>Trespass on the Case for negligence.</p>

To His Excellency, William Gregory, Governor of the State of Rhode Island and Providence Plantations.

<p>The expressions “ the annual session for the election of public officers ” in constitution of Rhode Island, Art. X, § 4, and “The next annual election ” in section 5 of said article are synonymous.</p> <p>The election of a judge of the Supreme Court at such time, whether to fill an additional place or to fill a vacancy, however caused, is for the term specified in section!; and the power to fill vacancies “until the next annual election” can only be exercised at other sessions of the General Assembly than the session at which the election of public officers takes place and when the vacancy is occasioned by one of the causes mentioned in section 5.</p> <p>Article XI, section 7, of amendments to the constitution of Rhode Island, providing that if a person is elected by the General Assembly to fill a vacancy in any office after the beginning of the term he shall hold the office for the remainder of the' term, and if he is elected to fill an office under the provisions of section S of said article before the term of office has commenced he shall hold the office for the full term, has no effect upon the provisions of section 5 of article X, as it applies only to offices which have a definite term and not to the office of justice of the Supreme Court.</p> <p>Article XI, section 12, of amendments annuls article III of amendments and substitutes therefor the provisions contained in section 1 of said article XI, “There shall be a session of the general assembly at Providence, commencing on the first Tuesday of January in each year.” An election of a judge at that session, whether to fill a vacancy or to make an addition to the number of judges in the court, is for the normal term.</p> <p>Article X, section 5, now applies only in the case of the election of a judge to fill a vacancy at a session of the General Assembly specially called by the governor under article VII, section 7, of the constitution after the final adjournment of the annual session, or by the acting governor under Article XI, section 4, of the amendments.</p>