Volume 24 — Rhode Island Reports

<p>Trespass. Heard on petition of plaintiff for new trial, and petition denied.</p>

Indictment charging defendant with obtaining money-under false pretences in writing. Heard on petition of defendant for new trial, and petition granted.

<p>(1) Dower in Woodlands. Equity.</p> <p>Gen. Laws cap. 264, § 2, provides that the widow shall he endowed in woodlands, as of a third part of the growth. The respondent widow was not so endowed, but the lot in question was set off by metes and bounds. The dowress sold all the wood on the lot to respondent 8., who cut off nearly all of it. Upon bill seeking an injunction and relief :&emdash;</p> <p>Held, that, as equity regards that as done which should have been done, the widow would be regarded as entitled to 'One-third of the growth of wood on the lot.</p> <p>Held, further, that, upon payment of a sum equivalent to the value of the wood cut over that to which the widow was entitled as dower, the injunction would be dissolved.</p>

<p>Assumpsit on a policy of life insurance. Heard on petition of defendant for new tidal, and judgment ordered for defendant.</p>

<p>Trespass on the Case under Gen. Laws cap.. 254, § 20. Heard on plaintiff’s exceptions to ruling of a District Court. Exceptions overruled.</p>

<p>Assumpsit for services rendered as housekeeper. Plaintiff was a sister of the wife of defendant’s intestate. Heard on petition of defendant for new trial, and judgment for defendant.</p>

<p>Bill in Equity. Heard on motion to enter decree.</p>

<p>(1) Negligence. Highways. Parks. Municipal Corporations.</p> <p>Where a recovery is sought against a municipal corporation for injury on a highway in a park, the existence of the highway must be proved as such.</p> <p>(2) Municipal Corporations. Negligence. Corporate Duties. Parks.</p> <p>Where the place of injury is a public park, a municipal corporation is not liable for omissions or neglect in the performance of its corporate duty imposed upon it by law, or for that of its servants when such corporation derives no benefit therefrom in its corporate capacity, unless such action is given by statute.</p> <p>(3) Public Officers. Municipal Corporations. Respondeat Superior.</p> <p>The members of the park department of the city of Providence, although appointed by the city, are not, when acting in the discharge of their duties, servants of the city for whose conduct the city can be held liable.</p> <p>(4) Parks. Governmental Duties.</p> <p>Purely incidental profit in the management of a park, where it is not managed merely in the nature of a business, does not constitute such a special benefit or advantage as to make the city liable in the absence of a statute.</p>

<p>(1) Breach of Promise of Marriage. Contracts. Torts. Attachment. Process.</p> <p>In an action of assumpsit for breaeli of promise of marriage, an attachment will not lie.</p> <p>(2) Attachments.</p> <p>In order to warrant an attachment, the cause of action must be based upon a contract where the damages, although they may be unliquidated are yet susceptible of estimation and determination by a jury under the ordinary and well understood commercial and business rules which apply to contracts proper.</p>

<p>(1) New Trial. Inadequacy of Bam,ages.</p> <p>A new trial upon the ground of inadequacy of damages will be denied where there is a conflict of testimony as to the extent of the injury.</p>

<p>(1) Mortgages. Fraudulent Sale under Foreclosure. Equity.</p> <p>An estate was advertised for sale under a second mortgage June 23, 1900, June 26, 1900, it was advertised for sale under the first mortgage. The sale under the second mortgage was fixed for July 14, 1900, and that under the first mortgage for July 18, 1900, the earliest possible date. The second mortgagee knew nothing of the sale under the first mortgage. The father of the mortgagor secured a postponement of the sale under the second mortgage for two weeks, carrying the date of sale beyond that of the first mortgage. The sale under the first mortgage was advertised in a paper of small circulation. The property was sold for the amount of the first mortgage, being less than one-third of its value. The only persons present at the sale were the treasurer of the bank which held the first mortgage, the father of the mortgagor, who secured a postponement of the second sale, the brother-in-law of the mortgagor, who bought the property, and an unknown woman. The mortgagee’s deed was drawn and delivered immediately :—</p> <p>Held, that the sale was a fraudulent device to cut out the second mortgage, and that the complainant second mortgagee was entitled to relief.</p>

<p>Bill, in Equity to enforce a lien against a trust estate. Heard, and relief granted.</p>

<p>(1) Probate Law and Practice. Married Woman as Administratrix.</p> <p>Gen. Laws cap. 194, § 11, providing that a married woman may not he administratrix by the appointment oí any court, applies to the appointment of one who is married at the time of appointment and not to the vacating of the office by one who marries after the appointment.</p>

<p>Replevin. Heard on. petition of defendant for new trial, and petition granted.</p>

<p>Replevin. Heard on petition of defendant for new trial. New trial granted conditionally.</p>

<p>Trespass on the Case for negligence. Heard on petition of defendant for new trial, and petition denied.</p>

<p>Bill in Equity for an accounting. Heard on bill and answer. Bill dismissed.</p>

<p>Bill in Equity to enforce dower rights. Heard on plea to the bill. Plea overruled.</p>

<p>Bill in Equity for an accounting with a trust estate. Heard on report of master.</p>

<p>(1) Landlord and Tenant. Surrender of Lease.</p> <p>Defendant hired of plaintiff by parol a tenement for the term of five years,, at a rental of $500, payable quarterly. Defendant occupied the premises-until October 3, 1S98, when he moved out; hut he paid the rent up to October 15, 1898. July 29, 1898, defendant told plaintiff he was going to move on or before the expiration of the quarter for which he had paid, which ended October 15, 1898, and that plaintiff could show the tenement with view to letting it. August 18, 1S9S, plaintiff advertised the tenement and showed the house to people who came to see it; he never told defendant lie intended to hold him for the rent, nor did he make-objection to his moving. October 3, 1898, defendant moved out; the-keys were left at plaintiff’s house, and plaintiff went into the tenement and put up “To let” signs. Plaintiff never sent any bill to defendant, and defendant testified he would not have left when he did had plaintiff-intimated that he expected to hold him for the rent:—</p> <p>Held, that the plaintiff’s conduct amounted in law to an implied acceptance of the premises which the defendant abandoned.</p> <p>(2) Evidence.</p> <p>A letter written by a party after the happening of the events complained' of cannot be used by himself as evidence of the existence of the facts-therein stated.</p>

<p>(1) Municipal Corporations. Ultra Vires Acts. Highways.</p> <p>A municipal corporation is not liable for acts of a highway surveyor not authorized by the town or by the town council thereof and not done in pursuance of any general authority on the part of Said surveyor of highways to act for the town in the premises.</p>

<p>Mechanic’s Lien Petition. Heard on entry of decree.</p>

<p>Case stated for an opinion.</p>

<p>(1) Harbor Lines. Costs.</p> <p>Gen. Laws cap. 266, relative to the determination of the lines and boundaries of tide-flowed lands, does not apply to interests where the lines have already been settled and determined; hence respondents whose lines had already been established by agreement or otherwise were not properly made parties to the proceedings and are not chargeable with costs.</p> <p>(2) Harbor Lines. Costs.</p> <p>The proceeding under chapter 266 is a statutory and not an adversary one, for a common advantage, and the costs should be apportioned by area of land affected.</p> <p>(3) Harbor Lines. Injunctions.</p> <p>In the absence of threats or intentions to disregard the line established, the court will not incorporate an injunction in the final decree confirming the report of commissioners appointed to establish and settle harbor lirres under Gen. Laws cap. 266.</p>

<p>(1) Chattel Mortgages. Tender. Restoration of Property.</p> <p>Under Gen. Laws cap. 207, § 13, the tender oí payment or payment of the amount due on the mortgage, together with' all reasonable and lawful charges and expenses, is a condition precedent to any right of action by the mortgagor for the recovery of the possession of the mortgaged personalty or for the recovery of damages for the conversion thereof.</p> <p>Upon the payment or tender of the amount due, the mortgagee is to “ restore ” the property to the mortgagor, but he is under no obligation to return it to the place from which he took it in pursuance of foreclosure proceeding's.</p> <p>(2) Chattel Mortgages. Tender. Restoration of Property. Attachments.</p> <p>The fact that attachments had been placed upon the mortgaged property while in the possession of and at the instigation of the mortgagee did not relieve the mortgagor from making the tender or payment required by the statute, so long as the actions were based upon bona fide claims against him.</p>

<p>Quo Warranto. The facts are stated fully in the opinion. Heard on petition for writ, and petition dismissed.</p>

<p>Bill in Equity seeking relief to set aside a deed. Heard on bill and answer. Relief granted.</p>

<p>Petition seeking relief set forth in the opinion.</p>

<p>(1) Husband and Wife. Presumption of Marriage. Evidence.</p> <p>The burden of proof of establishing a marriage is upon those setting it up.</p> <p>There is no one absolutely necessary manner of proving a ceremonial marriage to the exclusion of all other methods. It may be proved by the testimony of persons present who saw the marriage, and the parties to an alleged marriage may be witnesses for or against it unless rendered incompetent by some statute provision. The record of the marriage and marriage certificate are also competent evidence of the marriage, but the register of the marriage is not the best evidence. Cohabitation, . reputation, declarations and conduct of the parties, and reception among friends and neighbors are all admissible in evidence, though their probative weight, under all the circumstances, is for the court.</p> <p>Upon an issue as to the existence of a marriage between T. and E., it appeared from the testimony of E., the alleged wife, who was in'no way interested in the suit, that she was married in ISIl in Hew Jersey by E., a Methodist minister; that he gave her no certificate of marriage; that they lived together as man and wife in Hew York and Massachusetts; that T. introduced her to his relatives as his wife, making annual visits to some of their houses until he deserted her in 1SS2 and quit the country. I-Ie constantly corresponded with her, and she produced letters written by him to her in which he called her his wife. In 1881 T. executed a deed with her, in which she was described as his wife. Several sisters and brothers of T., as well as other witnesses, testified that T. and E. were received and generally reputed to be husband and wife. In 1883, in London, T. was married to II., the latter producing a certificate thereof. From that time until his death T. and II. lived together as man and wife, in England until 1891 and in various parts of this country thereafter, including Hew Jersey, during which latter period they were visited by some members of his family. They had issue five children. E. had no children by T. F. and his wife, who was a witness to the marriage, had deceased, and there was no record of the marriage to E., as required by the Hew Jersey statutes :—</p> <p>Hetd, that the evidence established a marriage between T. and E.</p>

<p>(1) Wills. Trusts. Vested and Contingent Remainders.</p> <p>Executory devise as follows : “I devise and bequeath all the rest and residue of my real and personal estate in trust to manage and dispose of the same to and for the use and benefit of my granddaughter C. during her life, and after her death to and for the use and benefit of the children of the said C. and their legal representatives, if any of them be dead, and their heirs. And if the said C. shall die without any child or children or their legal representatives living at the time of her decease, then and in such case my will is and I order and direct my trustees to pay out of my said estate as follows : unto my brother E., if then living, the sum of $1,000,” etc.</p> <p>At decease of testatrix, said C. had three children then living, A., B., and W. Said A. died, without leaving issue, before the decease of her mother, and upon the decease of C. her then living descendants were said B. and W.</p> <p>Upon the question whether the estate in remainder vested in the three children of 0. living at the decease of the testatrix, or, one having subsequently deceased without issue, it vested in the two children living at the decease of the life tenant:—</p> <p>Held, that in such cases the question to be determined was. always — was futurity annexed to the substance of the gift? If so, the vesting was postponed ; or was it annexed to the time of payment only ? If so, the legacy vested immediately.</p> <p>Held, further, that it was evident from the will as a whole, although in-artificially expressed, that the intent of testatrix was that the remainder of the estate after the death of C. should go only to such of C.’s children as should survive C.</p> <p>Held, further, that the devise operated as a contingent remainder to the children of C. conditional upon their being alive to take at the time of the decease of their mother, and that the estate vested in the children of C. living at the time of her decease.</p>

<p>Trespass on the Oase for negligence. Heard on demurrer to declaration, and demurrer sustained.</p>

<p>(1) Malicious Prosecution. Discontinuance of Criminal Complaint.</p> <p>Where a discontinuance of a criminal complaint is entered with the consent of the party prosecuted, such party cannot have an action for malicious prosecution.</p> <p>(2) JSvidenee. Varyincj Written Instrument.</p> <p>In an action for malicious prosecution the plaintiff will not be allowed to show that an agreement for the discontinuance of the.original action was not procured by him, but was procured by the complainants in the criminal proceedings who were the defendants in the case at bar, and that the plaintiff simply assented to the discontinuance, as such proof would tend to contradict the written agreement by parol.</p>

<p>(1) Breach of Marriage Promise. Accrual of Bight of Action.</p> <p>Where there is a subsisting contract of marriage, hut without a date fixed for its performance, the law construes it to be a promise to marry within a reasonable time upon request; and an action for breach of such promise cannot be brought, where no demand was made upon the defendant before the commencement of the suit, and the defendant had neither incapacitated himself for the performance nor by his acts rendered such demand unnecessary.</p>

<p>Trespass on the Case. Heard on motion to dismiss petition for new trial, and motion denied.</p>

<p>Trespass on the Case for breach of promise of marriage. Heard on motion of defendant for a rehearing, and motion denied.</p>

<p>(1) Pleading and Practice. Trespass. Trespass on-the Case. Master and Servant. Corporations.</p> <p>Wliere a plaintiff! seeks to hold a corporation liable for indirect or consequential force suffered as a consequence of the employment of a servant about the business of defendant, the action should be case and not trespass.</p> <p>Distinction between case and trespass, in actions against principals for torts committed by servants, stated.</p>

<p>Trespass on the Case for negligence. After decision rendered in 23 R. I. 289, the plaintiff again moved for judgment on the verdict. Heard on petition of plaintiff for new trial, and petition dismissed.</p>

<p>(1) Pleading and Practice. Assumpsit. Covenant. Seals. Agreements.</p> <p>Plaintiff sued in assumpsit for breach of an agreement evidenced by a contract in writing in which the words, “ agrees,” “ agreed,” and “ agreement ” were used throughout, except in one instance, where it used the word “covenants.” There was no testimonium clause, but ink scrolls with the word “ seal ” written inside of each scroll were appended to the signatures. At the trial plaintiff was nonsuited on the ground that the form of action should have been covenant:—</p> <p>Held, that Gen. Daws cap. 202, §' 4, abolished seals only as to instruments conveying land, but as to other instruments the common-law rule was in force, and within such rule the scroll was not a seal.</p> <p>(2) Covenants. Statutes. Pleading and Practice.</p> <p>Gen. Laws cap. 202, § 4, further provides “The word ‘covenant,’ used in any deed or instrument to which no - seal is affixed, shall have the same effect as though a seal had been affixed thereto”:—</p> <p>Held, that the statute only applied to cases where a party had expressly assumed to covenant by fit words. In the instrument in question the words of obligation were “agree,” and the word “covenants” was used as descriptive of the agreements, and the purpose of the agreement and the words employed showed that the agreement was intended to be a simple contract.</p>

<p>(1) Probate Appeals. New Trial.</p> <p>Under the provisions of Gen. Laws cap. 248, §§ 1-3, an appeal will lie from the decree of a Probate Court directing the executors of a will to file an inventory and account of an estate.</p> <p>Such appeal presents a proper subject of claim for jury trial, and may be lawfully taken to the Common Pleas División.</p> <p>(2) Prolate Appeals.</p> <p>The nature of the order, and not where it comes in the sequence of probate proceedings, determines the question whether an appeal will lie, under the statute, from the decree of a Probate Court.</p> <p>That a person may be “aggrieved” within the contemplation of the statute, the order must not be one simply facilitating the decision of the question before the court, but must operate upon his rights of property or bear directly upon his interest; it must be a substantial grievance, a denial of some personal or property right or the imposition upon him of a burden or obligation.</p>

Indictment charging the defendants with obstructing an officer in the discharge of his duty. Heard on petition of defendants for new trial, and petition denied.

<p>Trespass on the Case for negligence. Heard on petition of defendant for new trial, and judgment for defendant.</p>

<p>(1) • Negligence. Master and Servant. Illegal Contract. Minors.</p> <p>In an action by an infant plaintiff against a master for negligence, the defendant will not he permitted to set up its yiolation of a statute, intended to protect the minor, as a defence to its own negligence in the service rendered hy the minor.</p>

<p>Bill in Equity seeking relief set forth in the opinion.</p>

<p>(1) City of Pawtucfcet. Gommon Council. Meetings. Adjournment. Quorum. Tenure of Office.</p> <p>Charter of the city of Pawtucket provides, section 11, “ The aldermen and common councilmen shall meet . . . on the first Monday of January in each year at 10 o’clock in the forenoon.” The charter also provides, section 15, that the tenure of office of officers shall commence on the first Monday of January, “ and they shall hold their respective offices until their successors shall be elected and qualified.” It also provides that a majority of each branch shall be a quorum.</p> <p>An ordinance was passed by the common council December 16, 1901, and by the board of aldermen December 24, 1901; a special meeting of the common council was held January 4, 1902, at which the ordinance was returned without the approval of the mayor, whereupon it was laid over to the next meeting, which was to be held January G, 1002, at 9 o’clock A. M.</p> <p>On January 6 the president of the common council was present at nine .o’clock, but no quorum was present, and at 9:35 he declared the meeting adjourned for lack of a quorum. Afc ten o’clock the members of the council assembled, elected a president pro tern,., and passed the ordinance :—</p> <p>Held, that the final passage of the ordinance was illegal. As no quorum had°appeared within the time named for the meeting- it had expired by its limitation of adjournment.</p> <p>Held, further, that, although the members of the old council held their offices until their successors should be qualified, this did not authorize them to continue their meetings into the new year.</p> <p>Held, further, that, in case the new officers should not qualify, the old members might be convened in special meeting to act in an emergency, but they could not by themselves carry along business of the year that had ended.</p>

<p>(1) Master and Servant. Negligence. Assumed Pishs. Emergencies.</p> <p>Plaintiff, a girl seventeen years of age, had worked on a mangle in a laundry for about four months; she had been instructed how to run the mangle by another employee, and had been warned by the “boss” of the machine to be careful. Plaintiff testified that she understood that she was to be careful and not get her hand in the rollers. Plaintiff’s duty was to feed sheets to the machine, and if the sheets stuck to push them so that the cylinders would the better draw them. On the day in question a sheet stuck in passing over a roughness on the table of the machine, and in pushing the sheet it gave way and plaintiff’s hand was drawn between the rollers :—</p> <p>JTeZd, that the facts did not disclose an emergency in the sheet’s moving or giving* way, as that the sheet should move was precisely the result plaintiff was trying to produce.</p> <p>Held, further, that, as plaintiff knew of the danger and how to avoid it, she must be held to have taken the chances of injury from an obvious danger.</p>

<p>(1) Negligence. Master and Servant.</p> <p>Plaintiff, about twelve and a half years of age, was employed hy defendant as a “doffer” in its mill. Her duties were to remove full bobbins from the twisters and replace them with empty ones. Plaintiff had to perform her work in a narrow alley bordered on both sides by a row of twisters, the floor of the alley being slippery by reason of oil from the machines. The bobbins frequently stuck, and required force to remove them. Plaintiff, while attempting to kick off a bobbin that stuck, fell backward against a twister on the other side of the alley and was seriously injured. On above facts plaintiff recovered a verdict</p> <p>Held, that the verdict was not against the evidence.</p> <p>(2) Contributory Negligence.</p> <p>Held, further, that ordinarily the question of contributory negligence is for the jury, and the court can only interfere with their finding when it is so clear that such negligence existed that fair-minded men could not differ thereon.</p> <p>Held, further, that plaintiff, owing to her age, could not be held to that degree of care which a person of mature years and long experience could be called upon to exercise, and hence the degree of care was, under the Circumstances, peculiarly a question for the jury.</p> <p>(3) Evidence.</p> <p>The declaration alleged that plaintiff was employed about a dangerous machine where she had never worked before except for a little while, that it was not properly guarded, nor were proper warnings or instructions given plaintiff as to the danger</p> <p>Held, that evidence as to the directions or instructions given plaintiff by the foreman as to the manner in which she could take off the bobbins was properly admitted.</p> <p>Held, further, that whether the instructions given plaintiff by the foreman, in view of her age and short experience, taken in connection with her surroundings, were reasonable and proper was a question for the jury.</p> <p>(4) Negligence. Master and Servant. Safe Appliances.</p> <p>Held, further, that the question whether the machine was defective and unsafe, in that the bobbins were too tight for the spindles and could not be removed by plaintiff with safety on account of her lack of strength, was a question for the jury.</p>

<p>(1) Partition. Owelty.</p> <p>Gen. Laws cap. 265, relative to partition, which provides for sale of the estate, does not operate as a limitation upon the general power of courts of equity to require a payment of owelty, but the statute is in addition to the general power to cover cases in which a payment of owelty is impracticable.</p> <p>(2) Owelty.</p> <p>The rule permitting owelty to be required must have some limitation. The court must see that the requirement of owelty is equitably necessary ; that the ámount is fair, and that its payment is not so imposed / upon a party as to be unreasonably burdensome, considering both the condition of the property and the party.</p> <p>(3) Owelty.</p> <p>Where one is unable to make payment of owelty at the time of division, it should be a charge or lien upon his share, and a reasonable time should be given for the payment.</p>

Partition. The commissioners had. allotted to one of the parties one of the pieces of property. The house on this property was destroyed by fire. It was insured for $4,500 in the name of the estate, and the insurance was paid to the executors. By the terms of the report another of the parties had been awarded owelty out of this former share. Heard on form of decree.

<p>Trespass on the Case to recover a tax. Heard on demurrers to declaration. Demurrer to first count sustained, and to second count overruled.</p>

<p>Assumpsit to recover a tax paid under protest. Heard on petition of defendant for new trial, and petition granted.</p>

<p>Trespass on the Case for slander. Heard on demurrer to declaration, and demurrer overruled.</p>

<p>(1) Equity. Specific Performance. Memorandum.</p> <p>Memorandum of contract as follows: “Received of X. $120 on account of the $120. One hundred and twenty for all my claim as partnership of the lease of the Dump (so-called).”</p> <p>On a bill seeking specific performance :—</p> <p>Held, that the memorandum did not set out the essential terms of the agreement with sufficient particularity to enable the court to enforce it by decree.</p>

<p>Assumpsit. Heard on defendant’s exceptions to rulings of a District Court. Exceptions overruled.</p>

<p>(1) Criminal Law. Complaint. Motion to Quash.</p> <p>A motion to quash a complaint raises only those objections apparent on the record. A proper complaint is not rendered void by misconduct oí a judge at the trial. For such errors an appeal is provided.</p> <p>Semble, there is no prohibition in the statutes oí the holding of the offices of district judge and member of the town council by the same person. They are not necessarily incompatible. In cases where such a district judge might be called on to review an order of the town council, the proceedings might not be quashed, but should be certified, under Gen. Laws cap. 228, § 16, to the court of an adjoining district.</p> <p>(2) Evidence.</p> <p>Exceptions relating to the admissibility of evidence are cured by the introduction of testimony as to the same facts later and without objection.</p> <p>(3) Bequests to Charge. Evidence. New Trial.</p> <p>The defendant requested the court to charge : “Under this evidence and upon this complaint the defendant cannot be convicted of the charge in the complaint: ”—</p> <p>Held, that the request amounted only to a request to direct a verdict for the defendant, a- motion to which, as within the discretion of the court, exceptions would not lie.</p> <p>(4) Exceptions. Bringing Statement upon the Becord. New Trial.</p> <p>Gen. Laws cap. 251, §§ 6, I, require a statement of the matter to which an exception relates to be first filed in the clerk’s office within a fixed time, to be allowed; and if not allowed the statement may be shown by affidavit :—</p> <p>J-Ield, that where a statement was not so presented it could not be brought before the court on affidavit.</p>

<p>Bill in Equity. Heard on demurrer to bill, and demurrer overruled.</p>

<p>(1) Forcible Fntry. Complaint under Oath.</p> <p>Under the provisions of Gen. Laws cap. 271, “Of forcible entry,” the oath required by section 1 of said chapter is to be made by the complainant.</p> <p>(2) Separate Trials of Parties Defendant.</p> <p>Semble, a motion to grant separate trials to parties defendant is within the discretion of the trial judge, and his action in refusing the motion will not be overruled except in cases where it appears that a defendant has been prejudiced thereby.</p>

<p>Bill in Equity brought to declare a trust upon a deposit of money in bank. Heard on bill, answers, and proofs.</p>

Assumpsit to recover a balance alleged to be due for rent. Heard on .petition of plaintiff for new trial, and petition granted.

<p>Assumpsit. Heard on petition of defendant for new trial, and petition granted.</p>

<p>Bill in Equity seeking relief set forth in the opinion. Heard on demurrer, and demurrer overruled.</p>

<p>Replevin. Heard on motion in arrest of judgment, and motion denied.</p>

<p>(1) 'Equity. Creditors’ Bill. Equitable Attachment. Discovery.</p> <p>A bill in equity alleged that J., a non-resident who could not be served with legal process and who had no property in the State liable to attachment at law, was indebted to complainant; that respondent G., as executor of the will of IT., had in his hands a large sum of money belonging to J. as a legatee under said will; and that J. had promised complainant to pay him out of said money. The bill prayed that G. be enjoined from paying over any of the estate belonging to J. as legatee until further order of the court; that an equitable attachment issue in favor of complainant on said estate to the extent of the sum due from J. to the complainant; that G. discover under oath the full amount of the estate of U. coining into his hands, and the amount thereof belonging to J. On demurrer</p> <p>Held, that, as the bill alleged that G. as executor had a large sum of money belonging to J., and the latter had promised complainant to pay him the amount due him therefrom, it was immaterial whether the executor had rendered an account of his administration or not, the case falling within the rule laid down in Ginn v. Brown, 14 R. I. p. 527, as to the necessary averments of a bill of this sort; and as it showed that J. had a clear and valuable interest in the assets of the estate, it could be reached by the suit.</p> <p>(2) Legacies. Bight to Beach Legacy by Creditor.</p> <p>Held, further, that, while the rights of a legatee are controlled by Gen. Laws cap. 218, §§ Í 5, 29, the rights of his creditors are controlled by those principles of equity which seek to compel the appropriation of property to the payment of just debts.</p> <p>Held, further, that the effect of the bill was not to take away from the Probate Court the administration of the estate, but simply to require the executor to hold the fund which, after an accounting by him, should be' found payable to J.</p> <p>(3) Discovery. Equity Pleading. Demurrer.</p> <p>Held, further,, that, as the complainant was not entitled to the discovery and accounting prayed for, the bill was not rendered demurrable by the incorporation of such a prayer therein.</p> <p>(4) Attachment. Money in hands of Executor.</p> <p>Held, further, that, as money in the hands of an executor was not liable to attachment, no writ would issue.</p>

<p>(1) Secret Ballot Law. Ouster.</p> <p>Gen. Laws cap. 11, § 41, of the secret ballot law, provides that in case no ballots are provided at any voting-place in accordance with the provisions of said chapter, the voters at such voting-places may use any ballots and provide themselves therewith :—</p> <p>Held, that it was not the intent of the statute in such a contingency to require the other formalities prescribed in the act, and the ballots cast without the statutory [X] were lawfully cast and counted.</p>

<p>(1) Conditional Sale. -'Pleading. Warranty. Variance.</p> <p>Plaintiff acquired possession of a wagon from defendant under written agreement of conditional sale, title to remain in defendant until payment of aggregate amount.</p> <p>Plaintiff paid certain sums on account of the wagon and used same in his business for five months, and then refused to pay further installments. Defendant replevied wagon and plaintiff brought action against defendant, the declaration containing the common counts for money had and received and a special count alleging breach of warranty on the sale of the wagon.</p> <p>On petition for new trial after refusal to nonsuit:—</p> <p>Held, that, as plaintiff never acquired title to the wagon, he cquld have no action for breach of warranty.</p> <p>Held, further, that, as plaintiff never rescinded contract or returned the wagon, he was accountable for stipulated payments for the use of it so long as he retained it.</p>

<p>Action on Bond under Gen. Laws cap. 220, § 21. Heard on demurrer, and demurrer overruled.</p>

<p>Trespass on the Case for negligence. Heard on petition of plaintiff for new trial, and petition denied.</p>

<p>•(1) Pleading and Practice. Set-off. JSxecutor and Administrator. '</p> <p>Plaintiff, as administrator, sued defendant in assumpsit for the price of a chattel sold by his intestate. Defendant pleaded in set-off a claim against the intestate of a character which would have been available in set-off if the action had been brought by intestate in his lifetime. Plaintiff joined issue :—</p> <p>Held, that the claim, not having been presented to the administrator for allowance or rejection as required by statute, could not properly have been allowed in set-off.</p> <p>Held, further, that, by joining issue upon the plea, plaintiff waived his rights to the objection.</p> <p>Held, further, that objection should have been taken by replication to the plea.</p> <p>(2) Pleading and Practice. Changing Pleading.</p> <p>Held, further, that it is too late to change pleadings after a case has been opened to the jury.</p>

<p>(1) Master and Servant. Negligence. Obvious Bislc.</p> <p>A declaration alleging a defect in machinery by which, after plaintiffs fingers were caught, the hand and arm were drawn in because the machine could not he stopped until word was sent to the engine-room to shut off the power, and that this risk was not obvious or known to plaintiff, states a case. It does not claim a right of action for the obvious risk of having fingers caught in the rolls, hut for the excessive injury to the fingers after they were caught.</p>

<p>Bill in Equity seeking construction of deed.</p>

<p>Trespass on the Case for negligence. Heard on demurrer to declaration. Demurrer to first and second counts sustained, and to third count overruled. ,</p>

<p>(1) Gas Companies. Negligence. Inspecting Pipes.</p> <p>In an action for negligence against a gas company, the declaration stated that a dangerous machine called a slot meter was placed in plaintiff’s house by defendant at request of a tenant; that defendant introduced the gas.and gas meter into said building with great carelessness and negligence ; that defendant did not inspect nr test the gas pipes therein, which had long been out of use, to make sure that the said gas pipes were in suitable condition to receive said gas :—</p> <p>Held, that the charge thus stated was not that any damage was caused by the meter, but only by the omission of the defendant to inspect or test the pipes.</p> <p>Held, further, that, in the absence of any facts upon which to base an inference of duty, the court could not infer a general obligation to inspect pipes in a private house, which are not under the control of the company and as to which it has no apparent relation other than the fact that its gas is to be used through pipes placed therein by the owner as it has suited him to have them.</p> <p>Held, further, that, when an owner lets a house supplied with gas pipes, permission to use the pipes is to be presumed and a consequent authority to apply for gas. The owner is therefore as much responsible for the condition of the pipes as though he had applied for it himself.</p>

<p>Trespass on the Case for malicious prosecution. Heard on petition of defendant for new trial, and petition granted.</p>

<p>Assumpsit. Heard on demurrer to plea, and demurrer overruled.</p>

<p>(1) Beneficial Associations. Interpleader.</p> <p>Deceased, a member of a local beneficial society, with other members became a member of a national society, in his application for benefits in the latter releasing all his mortuary benefits in the former. This was in pursuance of an agreement by which the local society was to pay the entry fees of such of its members as joined the national society. The former paid on that account one hundred dollars and gaye its note for the balance, with the understanding that the assessments for death benefits in the former as they should become collectible should be appropriated to the payment of the note instead of being paid to the beneficiaries, who should look to the latter society for benefits. The one hundred dollars paid to the latter were credited to the charge for entry fees of the new members, and settled fifty cents of the two dollars due from each. While the transfer was only partly consummated, and before any certificate was issued on application of deceased, he died; and the national society, claiming that deceased was not entitled to mortuary'benefits'in both societies, proposed to pay the widow the sum which would have accrued to his representative if he had fully completed his membership, if she would assign to the' national society her claim for benefits, in the local society, which she did. The widow later claimed benefits in both societies. On interpleader:—</p> <p>Held, that the terms of the application substituted one right for the other, and that the local society was entitled to the fund.</p>

<p>(1) Specific Performance. Innocent Purchaser.</p> <p>Where A. had a written contract with B. for the conveyance to A. of certain real estate, B. at the same time being bound by another contract previously made to convey it to 0., and under this, latter contract the estate was conveyed to C., a purchaser in good faith, without notice of A.’s contract, no decree for specific performance can be made, but A. must be left to his remedy at law.</p>

<p>Bill in Equity. Heard on demurrer, and demurrer sustained.</p>

<p>(1) JSquitcibU Attachment. Affidavits.</p> <p>Gen. Laws cap. 252, § 21, relative to writs of attachment in equity causes, does not require the affidavits to he annexed to the writ.</p> <p>(2) Dquitahle Attachment. Return Day. Account of Property Attached.</p> <p>After the service of a writ of attachment under Gen. Laws cap. 252, § 21, in an equity cause, complainant moved for an account upon oath of the shares of stock attached :—</p> <p>Held, that the implication from a return day in the statute would seem to he that the party upon whom the writ was served should at such time make a return of the property attached; hut siirce the statute had no provisions for such return, the motion for an account was properly made.</p> <p>Held, further, that the motion was prematurely made, since, until complainant established his hill or showed circumstances requiring the disclosure, it could serve no useful purpose and should not he ordered until it should appear necessary.</p>

<p>Bill nsr Equity for specific performance. Heard on bill and answer.</p>

<p>(1) Trover. Conversion of Money in Specie.</p> <p>Trover will not lie for money delivered to the defendant to be expended in behalf of the plaintiff, which defendant converted to his own use.</p>

<p>(1) Stockholders’ Liability. Bankruptcy of Corporation. Discharge.</p> <p>Section 16 of the bankrupt act of 1898 provides that “The liability of a person who is a co-debtor with or guarantor, or in any manner a surety for a bankrupt, shall not be altered by the discharge of such bankrupt :—</p> <p>Held, that the liability of a stockholder of a corporation, under G-en. Laws cap. 180, was not released by the discharge of the corporation in bankruptcy.</p> <p>(2) Stockholders’ Liability. Pleading. General Issue. Debt.</p> <p>To an action of debt against a stockholder by a judgment creditor of a corporation, under Gen. Laws cap. 180, defendant pleaded nil debit. On demurrer to the plea :—</p> <p>Held, that, owing to the additional facts that the plaintiff would be required to prove in this action as distinguished from an action of debt on judgment against the original debtor, which might be denied by defendant, the plea was proper.</p> <p>(3) Stockholders’ Liability. Insolvency of Corporation.</p> <p>The liability of a stockholder, under Gen. Laws cap. 180, to a judgment creditor of the corporation is not affected by the fact that at the time of the contracting of the original debt the corporation was insolvent to the knowledge of the creditor.</p>

<p>(1) Deceit. False Warranty.</p> <p>To an action on the case for deceit upon a false warranty, the lack of knowledge of defendant of the falsity of his warranty is no defence.</p> <p>(2) Procedure. Objections to Declaration. .</p> <p>After pleas, trial, and verdict, defendant’s objection that the declaration^ was not filed in time, as required by the statute, comes too late.</p>

<p>Bill in Equity seeking relief set forth in opinion. Heard on bill, answer, and proof. Relief granted.</p>

<p>Assumpsit. Heard on exceptions to ruling of District Court. Exceptions overruled.</p>

<p>Bill IN Equity. Heard on exceptions to report of master.</p>

Indictment charging defendant with a violation of Gen. Laws cap. 152, § 8, of medicines and poisons. Heard on demurrer, and demurrer sustained.

<p>(1) Elections. Statutes. Directory and Mandatory. Notices.</p> <p>Gen. Laws cap. 9, § 12, requiring notices of district meetings to be given by posting the same in two or more public places in each district, is directory and not mandatory. The purpose of the notification is to give notice to the electors of the time, place, and object of the meeting; but an omission to follow the statutory mode of notice will not render the election void, if the electors have actual notice and take part in the election.</p> <p>(2) Annual Town Meeting. Custom.</p> <p>Prom time immemorial, with the exception of the year 1901, the first Tuesday in June had been the election day for town officers in the town of Ex-eter. In the year 1901 the time for the annual election was fixed by the town council for the second Tuesday of June, by virtue of Pub. Laws cap. 881, § 2, that time being fixed because the annual town meeting for laying a tax fell as usual on the first Monday of said month. Subsequently the time for holding the financial meeting was changed. In the year 1902 the annual meeting for the election of town officers was held upon the first Tuesday in June. Upon the republican ballots for town officers for the year 1901, used in both districts of said town, the printed statement appeared: “Election of town officers, first Tuesday in June, annually.” Nothing relating to said time was put upon the democratic ballot or other ballots used at that election, and the ballots cast by the republicans outnumbered those which were cast by any other party :—</p> <p>Held, that the time for the holding of said meeting was fixed by law, or by a custom which, from its immemorial existence, had the force of law, and in accordance with the intention of the electors, as clearly appeared from their ballots.</p> <p>(3) Elections. Moderators. Disfranchisement of Electors.</p> <p>Electors of a voting district are not disfranchised so as to render the election void by reason of the refusal of the moderator to open the meeting or allow the electors to vote. In such case it is the right of the electors to elect a moderator in his stead and proceed with the election. Electors who fail to exercise this privilege cannot be heard to complain of the result of the election.</p> <p>(4) Elections. District Meetings. Place of Meeting.</p> <p>Gen. Laws cap. 9, §§ 4, 9, as amended by Pub. Laws cap: 808, § 8, provide that a meeting of the electors of every voting district shall be held annually on the Tuesday next after the first Monday in November, at a place to be designated by the town council, if none shall have been designated by a former district meeting, for the purpose of voting for such officers as are to be chosen and for organization. Such meeting shall fix the place of their future meetings.</p> <p>February, 1901, the town of Exeter was divided into voting districts, and thereafterwards the town council designated the place in each of said districts for holding the first meeting. Said meeting was held June 11, 1901, which was the time fixed for the annual election of town officers in said town that year. The same polling places were used in the annual election of State officers in November, 1901, and no action was ever taken by the electors of said districts to designate the places for the holding of future meetings: The meetings for the election of town officers were held June 3, 1902, at the same places :—</p> <p>Held, that said places designated by the town council continued to be the places fixed by law until changed by the electors of said districts.</p>

<p>(1) Equity. Collateral Security. Pledge. Common Fund.</p> <p>•A. purchased from B. notes of the T. Co. which contained a stipulation that certain tax-sale certificates were deposited with B. as collateral security for the payment thereof; the notes were defaulted when due. It appeared that B., instead of keeping the tax-sale certificates, which were collateral for A.’s notes, separate and apart, had mingled them, with other tax-sale certificates given by the maker as collateral security for other notes held by different parties, in what was called a common fund. Certificates from this common fund were from time to time sent by B. to the T. Co. to be redeemed, the proceeds to be transmitted to B., with the result that a considerable sum was lost, as the T. Co. transmitted by worthless checks which were never made good. A. denied all knowledge of the common fund, and that he consented to the mingling of his collateral with the collateral of other purchasers of notes, as was claimed by B. On a bill by A. for an accounting and for other relief :—</p> <p>Held, affirming Browne v. B. I. Mortgage & Trust Go., 21 R. I. 169, that the note called for the deposit of special certificates as security therefor, and that the burden of proof was upon B. to show that A. consented to the inclusion of his certificates in the common fund.</p> <p>Held, further, that, as B. had admitted the mingling of the security in the common fund, no proof of demand by A. upon B. for the collateral security, nor a request to B. to sell the same and a refusal by B. to comply with such request, was necessary as a condition precedent to the maintaining of the suit. '</p> <p>Held, further, that A. was entitled to the relief sought.</p>

<p>(1) Equity. Harbor Line. Filling in Flats. Biparian Bights. Injunctions.</p> <p>A., owning certain real estate bordering upon Bulloch’s Cove, the same being tide-water, platted it into numbered lots, and caused the plat to be recorded in the town of Barrington. In 1S94, before the purchase of any of said lots by complainants, A. obtained permission from the harbor commissioners to fill into public tide-water westerly of the lots of the complainants. In 189S A. conveyed lots 22, 20, and, 19 on said plat to the complainants. At the time of said purchase the ordinary high, water mark of tide-water was upon all of said lots, which were'bounded on the west by the tide-water of said Bullock’s Cove. By said plat other lots were platted below ordinary high-water mark in said cove, and a certain portion of land thirty feet wide, running from north to south westerly of said lots of complainants and partly below high-water mark, was marked on said plat as “Edwin street.” At the time of said purchase complainants were ignorant of the exact location of said lots, which appeared by said plat to be above ordinary high-water mark. After the purchase of said lots complainants filled in in front thereof on the westerly line of said lots. Subsequently A. filled in along the westerly line of said lots and along the shore lying westerly of said lots down to. a line sixty-six feet westerly of the westerly line of complainants’ lots, under a claim of right to all said lands filled in westerly of the westerly line of complainants’ lots as indicated on said plat, by virtue of said plat and of the permission given him by the harbor commissioners. Complainants claimed said land so filled in by virtue of the riparian rights appertaining to their lots bounded by tide-water. In equity proceedings, to enjoin A. from trespassing upon said land :—</p> <p>Held, that, as complainants’ deeds did not in terms bound them on Bullock’s Cove nor in any way suggest riparian rights, but referred only to numbered lots on a plat, which were precisely marked as bounded westerly on a proposed street, with another row of lots existing between them and the line-up to which A. claimed to own by the plat and the harbor commissioners’ assent, complainants’ claim must rest, if at all, upon its inclusion within the meaning of the words “ with all the privileges and appurtenances thereunto appertaining” in the habendum clause.</p> <p>Held, further, that when A. made his plat he had the right, by virtue of the assent of the harbor commissioners as to the territory it applied to, to fill out below high-water mark.</p> <p>Held, further, that A., as riparian proprietor, had the right to make the plat, and to convey to his grantees by deed the lots as platted thereon ; and the limits of the respective lots so conveyed, whether in whole or in part under high-water mark, fixed the bounds of the rights acquired by the purchasers thereof.</p> <p>Held, further, that complainants had no right to fill westerly of the westerly line of the street lying westerly of their lots; that they had the right to fill the location of said street as a privilege belonging to their lots; that A. had the right to fill in said street easterly to the westerly line of complainants’ lots as platted; and that, westerly of said street, A. and his grantees of. lots westerly of said street were alone entitled to fill out as far as license had been given therefor.</p>

<p>Trespass Quare Clausum. Heard on petition of plaintiff for new trial, and petition granted.</p>

Assumpsit. The facts are stated in full in 22 R. I. 422. Heard on petition of defendant for new trial, and petition denied.

<p>(1) Master and Servant. Negligence. Improper Appliances.</p> <p>Plaintiff, a servant in employ of defendant, was injured by the breaking of a belt. The belt was traveling two thousand feet per minute, and parted at a joint which had been made by defendant by cementing two ends together. Defendant’s workman who mended the belt testified that he knew nothing of the quality óf the cement which he used. It appeared that cemented joints were in general use in mills, yet such joints, when made by belt manufacturers, were united by hydraulic pressure ; whereas, in the case at bar, the ends were trimmed, laid together with cement between them, placed between two boards while still upon the shafting, secured by a few nails, and allowed to remain over night. The atmosphere in the room was artificially moistened, to enable the operatives to spin to better advantage, which had a tendency to loosen such cemented joints.</p> <p>The belt was carrying nó load at the time, and was subjected to only about one-twentieth of the strain it was designed to bear. Defendant’s workmen further testified that the joints made by the manufacturers were better made, and should hold better:—</p> <p>Held, that the defendant, having assumed to manufacture its own cement and mend its own belts, was bound to know not only the quality of the cement and the proper proportion of its elements, but, having that knowledge, was also bound to apply the cement in such a manner as should make the belts reasonably safe.</p> <p>Held, further, that the method employed by defendant was condemned by its own witnesses, and a verdict for plaintiff should be sustained.</p> <p>(2) Damages. Negligence.</p> <p>Where plaintiff, fifty-one years of age, earning $1,000 per year, was totally incapacitated from any labor, losing the sight of one eye, with the probability of total loss of sight in the near future, a verdict of $12,500 is not. excessive.</p>

<p>Bill in Equity, seeking relief set forth in opinion. Heard on exceptions to report of master.</p>

<p>Assumpsit. Heard on petition of defendant for new trial, and petition denied.</p>

<p>Bill in Equity for an accounting. Heard on motion for re-argument, on exceptions to report of master, and motion denied.</p>

<p>Bill in Equity, seeking the construction of a will. Heard on bill and answers.</p>

<p>(1) Husband and Wife. Head of Household. Contract for Board.</p> <p>Where hoard is furnished in a household, it is to be presumed, in the absence of any agreement to the contrary, or evidence that the wife furnished it out of her own estate, that the husband is entitled to compensation therefor.</p> <p>(2) Infants. Necessaries. Schooling.</p> <p>The word “necessaries” is a relative term, and is not limited to those things which are indispensable to the infant’s personal support and comfort, hut may include such an education as will fit him to earn a living in his chosen vocation and for the ordinary duties of life in the sphere in which he moves.</p> <p>Where the infant’s residence is such that the public schools do not furnish facilities for a broad education, including a business or commercial training, the question whether a father who has abandoned the infant is liable for the expenses of a commercial education, furnished the infant as reasonably necessary, should be left to the jury, together with evidence from which the jury can intelligently estimate the father’s means.</p> <p>Quaere, whether a college or professional education could be classed with necessaries under any circumstances.</p>

<p>(1) Pleading. Set-off: Breach of Gontraci.</p> <p>Gen. Laws cap. 239, § 11, allowing the plea of set-off for “any sum liquidated or for one which may be ascertained by calculation, and which is foundedfon a judgment, or on an account, or on any contract (whether express or implied),” cannot be extended to include a claim for damages founded on a breach of contract.</p> <p>(2) Gross Glaims. Judgments. Executions.</p> <p>A defendant haying a cross claim against a plaintiff, not within the statute of set-off, may secure his equitable remedy of applying his claim in reduction of the plaintiff’s judgment by virtue of Gen. Laws cap. 246, § 9, under which the judgments may be set off and execution issue only for the balance in favor of the party to whom it is due.</p> <p>(3) Pleading. Insolvency. Set-off.</p> <p>Semble, the description in a declaration of plaintiffs, as copartners and trustees for X., assignee of said plaintiffs, does not warrant the inference of the insolvency of the firm.</p>

<p>Trespass on the Case for negligence. Heard on demurrer to declaration, and demurrer sustained.</p>

<p>(1) Parent and Child. Loss of Service.</p> <p>While the father, rather than the mother, has the implied right at common law to the benefit of his minor children’s labor while they live with and are supported by him, yet a widow who supports herself and children with the aid of their services has the same control over their earnings, and is entitled to recover for the loss of services of the minor in consequence of an injury negligently caused to the child. The right of recovery is based both upon the right to service and upon the liability to support the person injured.</p> <p>(2) Parent and Child. Bight to Services qf Minor.</p> <p>An arrangement between parent^fa minor, that the mother should manage the affairs of the hous^^^H^ should receive the earnings of the ■ minor, amounted to a reli^^^^^Bt by the father of his right to the minor’s services and an thereof to the mother, and entitled the latter to maintain an actiSHor loss of services prior to the death of the father.</p> <p>(3) Evidence. Negligence.</p> <p>Evidence as to the manner in which a belt, which was the cause of the injury complained of, was.repaired subsequent to the accident is inadmissible to show antecedent negligence, and its admission is ground for a new trial.</p> <p>(4) Negligence. Bequests to Charge.</p> <p>In an action for negligence, alleging injury from the breaking of a belt, a request to charge the jury that “ if the belt broke and passed over the girl’s head without hitting her the matter of lacing and inspection is not material ” should have been granted.</p> <p>(5) Parent and Child. Loss of Society of Minor.</p> <p>In an action brought by a parent to recover for loss of services of a minor caused by defendant’s negligence, damages for loss of the society of the minor cannot be recovered.</p>

<p>Bill in Equity seeking relief by injunction upon facts set forth in the opinion. Bill dismissed.</p>

<p>Mandamus. Heard on citation to show cause, and alternative writ ordered to issue.</p>

<p>(1) Account. Mew Trial. Questions of Law and Fact.</p> <p>In an action of account, upon the question whether the defendant had received the rents or had had enjoyment of the premises so as to make her liable to account, it was error for the presiding justice to rule that, as a matter of law, the defendant was the tenant of the premises and to direct a verdict for the plaintiff, as the question raised was for the jury-</p> <p>(2) Account. Bequests to Charge.</p> <p>In an action of account, for the rents and profits of certain premises, a request by the defendant to charge “If the rental for the premises was fixed in November, 1901, at $250, by A. and B., then your verdict should he for the defendant,” was properly refused, as it was not sufficiently limited as to whom B. was acting for—whether for himself or for the defendant as her agent—it being claimed by the plaintiffs that any action by B. was for and on behalf of the defendant.</p>

<p>(1) Political Caucuses, Board of Canvassers. Judicial and Ministerial Powers.</p> <p>Pub. Laws cap. 662, § 13, “An act relative to political committees and caucuses,” provides, in case oí a petition for a recount, that the board of canvassers of the city of Providence “ shall retain all the ballots cast at such caucus .• . . until such claim is withdrawn or the contest for the nomination or election is fully determined by the board.” It provides for notice of the time and place of the recount, and directs the board “to hear and determine all questions raised for or against the counting of the same or of any thereof, and such recount shall stand as the true record and result of the vote cast at such caucus, and the proper officer shall cause the names of the persons so declared to be nominated for any elective office to be printed upon the official ballots, in accordance with the certificate of such recount.” On mandamus brought by certain candidates for nomination against the board of canvassers :—</p> <p>Held, that these provisions were a plenary grant of judicial power.</p> <p>Held, further, that the power of the board was not limited to allowing or rejecting ballots one by one, but they were constituted a tribunal to determine all questions relating to the official ballot, with power to reject all ballots if objectionable.</p> <p>Held, further, that, while the giving of a certificate of nomination was a ministerial act, when the fact of a nomination had been ascertained; the ascertainment of that fact was an exercise of judicial duty.</p> <p>Held, further, that, as no personal common-law right was involved to give the court inherent jurisdiction, the action of the board of canvassers was not re viewable by the court.</p>

<p>Trespass on the Case for negligence. Heard on petition of plaintiff for new trial, and petition denied.</p>

<p>Mandamus. Heard on petition for writ, and petition granted.</p>

<p>(1) Municipal Corporations. Highways. Trespass.</p> <p>A municipal corporation is not liable for a trespass by its servants upon land of plaintiff unless such acts were expressly authorized, or ratified, or done in good faith pursuant to some general authority given.</p> <p>(2) Municipal Corporations. Trespass. Establishment of Grade.</p> <p>For an original establishment of grade an abutting owner is not entitled to compensation.</p> <p>(3) Municipal Corporations. Escape of Surface Water.</p> <p>For the escape of the natural flow of surface water from a highway onto adjacent land, by reason of the filling in of the highway, no action will lie.</p>

<p>(1) Taxes. Suit to Recover Tax. Assessment. Pleading and Practice. Declarations.</p> <p>Gen. Laws cap. 48, § 26, provides that “The collector of any tax may recover the amount thereof in an action of the case against the person taxed, and in the declaration it shall be sufficient to set forth that the action is to recover a specified sum of' money, being a tax assessed against*the defendant, specifying the town in which said tax was assessed and the time of ordering and assessing the same.”</p> <p>An action brought to recover a tax alleged in one count that the tax was assessed against the defendant, it having been ordered on the fourth day of June, 1900, assessed on the 4th and 5th days of September, 1900, and ordered to be due and payable on and after the 15th day of November, 1900.</p> <p>A second count set out that said tax was validated and legalized by two acts of the General Assembly, setting them out by title. On demurrer:—</p> <p>Held, that it was only requisite that the work of making the assessment should be done within the time limited therefor by the vote of the town directing the assessors when to make the assessment.</p> <p>H'eld, further, that it would be regarded as taking effect on the last day of the assessment; this fixing a definite time and fully meeting the requirements of the statute.</p> <p>Held, further, that the declaration stated a case under the statute.</p> <p>(2) Assessment of Taxes. Validating Assessment.</p> <p>Held, further, that the declaration was not bad in not alleging the particulars in which the tax was validated by the acts of the General Assembly, the acts themselves clearly specifying as to said particulars.</p>

<p>(1) Probate Law and Practice. Actions against JSxecutors and Administrators. Statute of Limitations.</p> <p>Gen. Laws cap. 234, § 8, providing that “If any person for or against whom any action shall accrue shall die before the time limited for bringing the same, or within sixty days after the expiration of said time, and the cause of such action shall survive, such action may be commenced by or against the executor or administrator of the deceased person at any time within one year after the decease of the person so dying, and not afterwards if barred by the provisions of this chapter,” is an exception to the general statute of limitations ; and also, by special reference, to Gen. Laws cap. 218, § 8, prohibiting the bringing of an action against an executor or administrator within six months from the date of the first notice of appointment; and also to Gen. Laws cap. 215, §§ 2, 3, and 4, “Of presentation and proof of claims against the estates of deceased persons.”</p>

<p>Assumpsit. Heard on demurrer to pleas, and demurrer to third plea overruled, and sustained to fourth plea.</p>

<p>Case stated on Agreed Statement of Facts. Judgment for plaintiffs.</p>

<p>(1) Guardian and Ward. Bemoval of Guardian. Suit on Bond. Appeal. Pleading. Abatement.</p> <p>Pending an appeal from the allowance of the account of a guardian, an action against the guardian and surety on the bond, alleging a breach in that the guardian had not turned over the balance of his account after it had been allowed and he had been removed as guardian, cannot be maintained.</p>

Bill in Equity seeking to enjoin the enforcement of a judgment. Heard, on question of constitutionality of Pub. Laws cap. 980, before full court. Beferred to Appellate Division, after decision that constitutional question was not involved.

<p>'(1) Wills. Rule in Shelley’s ease in Personalty. Trusts.</p> <p>The rule in Shelley’s case is applied by analogy to personalty, unless a contrary intent appears in the instrument. Hence where a will gave to a widow an equitable interest in the trust estate which,.if it had been realty, would, under the rule in Shelley’s case, have been an estate in fee, upon completion of the trust she is entitled to the fund, no conveyance being necessary.</p>

<p>Trespass on the Case for negligence. Heard on demurrer to declaration, and demurrer overruled.</p>

<p>Bill in Equity seeking to open an account and set aside a judgment and mortgage, and for an' account and to redeem. Heard on bill, answer, and proof, and bill dismissed.</p>

<p>(1) Equity Pleading. Laches.</p> <p>A demurrer to a bill on the ground of laches will be overruled where it does nqt appear from the bill that the respondent has suffered any disadvantage from mere delay.</p> <p>(2) Equity Pleading. Statute of Limitations.</p> <p>Where it appeared from the allegations of a bill that it was brought more than two years after the appointment of an executor, but it did not appear that it was brought more than two years after the first publication of notice of the qualification of the first executor or administrator, a demurrer on the ground of laches will be overruled; since the special limitation of Gen. Laws cap. 218, § 9, must be specially pleaded.</p> <p>(8) Bill'of Review. Limitation as to Filing. ■</p> <p>The time for filing a bill of review in equity, by analogy with the time for filing a petition for a new trial at law, cannot exceed one year from the entry of the original decree.</p> <p>Quaere, whether the one year may not be reduced by Gen. Laws cap. 246, § 2, providing that, in all decrees in equity causes, the court entering the same shall have control over them for six months after the entry, and may, for cause shown, set aside or make new entry in the same.</p>

<p>Covenant. Heard on petition of defendant for new trial, and petition denied.</p>

<p>(1) Estoppel. Voluntary Societies. Contracts.</p> <p>Technical variations from rules prescribed by its constitution or by-laws will not relieve a society from liability to outside parties doing business with it in good faith upon the strength of what appeared by the records to have been regularly and properly done.</p> <p>Article IX of the constitution of a voluntary society provided that the physician of the society should be chosen at the regular elections. Article III, section 4, provided that the election of officers should take place at the regular meetings in January and July. It had been the custom, for some time before the election in question, to elect officers in June and December. Article III, section 6, provided that a candidate should receive a majority of all votes east.</p> <p>At a regular meeting in December, 1900, plaintiff was declared elected the physician of the society, and the secretary was directed to notify him thereof. Although plaintiff did not receive a majority of all ballots, he was declared elected; and this was acquiesced in by all the members present. The records stated that plaintiff was elected, “provided he answered the secretary’s letter.”</p> <p>December 30 the secretary notified plaintiff of his election ; the letter was received by him January 1, and January 3 plaintiff mailed his acceptance. At a special meeting held January 2, another physician was' elected, and the secretary was directed to notify plaintiff that his services were no longer required. This was received by plaintiff January 4. At a meeting held January 11, it was voted that “ all business transacted at our special meeting stand legal,” and the physician elected at the meeting of January 2 was declared the physician for the balance of the term:—</p> <p>Held, that, in view of the facts that the president was allowed to declare the plaintiff elected without dissent; that the record showed that plaintiff was elected at a regular meeting ; and that plaintiff was recognized as holding the office by the action of the society at the meetings of January 2 and 11, the defendants were estopped from setting up technical irregularities as a defence to his right of recovery.</p> <p>(2) Contracts. Acceptance.</p> <p>Held, further, that the contract was consummated upon the depositing of the acceptance in the mail, the jury having found it was within a reasonable time.</p> <p>(3) Voluntary Societies. Principal and Agent.</p> <p>Held, further, that the individual members of the society were liable for all acts of the society within the scope of its authority, although absent from the meeting at the time such action was taken.</p> <p>(4) Pleading. Special and General Assumpsit.</p> <p>When a contract has been fully executed, and nothing remains to be done but the payment of the price agreed o'n, the plaintiff may declare specially on the contract, or he may rely on the common, counts in indebita-tus assumpsit.</p> <p>(5) Contracts.</p> <p>Where it appeared that no compensation was expressly fixed at the time of plaintiff’s election, and that he had< previously served in the same' capacity at a given rate, a request to charge that the presumption was that the employment was continued on the terms of the original contract was properly granted..</p> <p>(6) New Trial.</p> <p>A new trial will not be granted, although a request to charge which was not pertinent to the case was allowed, where it appears that the jury were neither confused nor mislead, and returned a verdict for the amount which the plaintiff was entitled to recover, if entitled at all.</p>

<p>(1) Trover. Consignment.</p> <p>Where goods were consigned to defendant for sale, his act in selling them not only constituted no conversion thereof, but was within the scope of his authority as consignee and agent; and the fact that he testified at the trial that he bought the goods and sold them as his own, instead of receiving them on consignment, did not constitute a conversion of those sold.</p> <p>Otherwise, if a preconceived design to obtain the goods and not pay for them had been shown.</p>

<p>Assumpsit. Heard on petition of defendant for new trial, and petition denied.</p>

<p>(1) Beneficial Societies. Charges. Specifications.</p> <p>While a member of a beneficial society is entitled to notice of charges and opportunity for defence, which includes a specification of the charges against which he is to defend, yet when he has actual notice of the particular charge, he has all that he can claim, even though it may not be formally stated.</p> <p>(2) Beneficial Societies. Sunday Law. Worlcs of Charity.</p> <p>A beneficial society, in the trial of charges against a member under its bylaws, is not a court of law. Its action is a part of the business of sucli a society, and is not void because transacted upon Sunday, the necessary work of charitable organizations being within the intent and words of Gen. Laws cap. 281, § IT.</p> <p>Semble, that where, by reason of the unwillingness of witnesses or counsel to attend such a trial upon Sunday, a party would be deprived of a fair trial and a reasonable postponement should be refused, there would be strong reasons for holding such an expulsion illegal.</p>

<p>Trespass on the Case for negligence. Heard on petition of plaintiff for new trial, and petition granted.</p>

Debt under statute passed June session, 1836, amending charter of New York, Providence & Boston E. E. Co. Eor full discussion of this act see McDonald v. B. B. Co., 23 E. I. 558. Heard on demurrer to déclaration, and demurrer overruled.

Trespass on the Case for negligence. The facts are stated fully in the opinion. Heard on demurrer to plea, and demurrer sustained.

<p>Bill in Equity to set aside a deed. Heard on bill, answer, and proof. Relief granted.</p>

<p>(1) ' Pleading and Practice al Law. Variance. Trespass. Case.</p> <p>Where the form of action set out in the writ is trespass on the case, while that set out in the declaration is trespass, the variance is -fatal.</p> <p>(2) Statute of Jeofails.</p> <p>The statute relating to amendments is not sufficiently broad to enable the court to permit the form of action to be changed.</p> <p>(3) Variance.</p> <p>A variance between the form of action set out in the writ and declaration may be taken advantage of at any stage óf the case, irrespective of the fact that the general issue and other pleas have been previously filed by defendant.</p>

<p>Case Stated eor Opinion under Gen Laws cap. 240, $ 24.</p>

<p>(1) Deeds. Plats. Description.</p> <p>A., being the owner of land, made a plat showing certain lots on both sides of a street. A lot abutting on the south side of the street, and belonging to A., was not shown on the plat. A. conveyed the lot to the ancestors in title of complainant by deed, bounding the lot “northerly till it strikes the south line of Federal street [the street in question], thence in the line of said street easterly,” etc</p> <p>Held, that the deed carried title to the centre of the street not by reason of ownership on the plat, but by bounding on the street, since grantor retained title to the centre of the street which passed to his grantee, subject to the easement of a way.</p> <p>(2) Streets. Deeds. Easements.</p> <p>Held, further, that complainant was entitled to an easement in the street to its full length, and not merely between the lines of his lot.</p> <p>(3) Abandonment of Easement. Obstruction of Way. %</p> <p>A previous obstruction of the way by grantor to complainant, for which respondent brought suit, did not amount to an abandonment of the way, if it would at all, when it appeared that the width of the street was disputed and respondent claimed obstruction to be within his own line.</p> <p>(4) Deeds. Streets. Exclusive Possession. Easements.</p> <p>The maintenance of steps in a street is not an exclusive possession when they were for the more convenient use of the street. Anyone entitled to use the street could use the steps.</p>

<p>(1) Dogs. Trespass. Liability to Trespasser.</p> <p>Gen. Laws cap. 11.1, § 3, provides that “if any dog shall assault, bite, or injure any person while traveling the highway or out of the enclosure of the owner or keeper of such dog, the owner or keeper shall he liable to the person aggrieved for all damage sustained, and it shall not' be necessary to prove that the owner or keeper knew that such dog was accustomed to do such damage : ”—</p> <p>Held, that the fact that plaintiff was a trespasser at the time of being-bitten by the dog was no defence, where the plaintiff by his own conduct did not purposely and recklessly bring the injury upon himself.</p> <p>(2) Dogs. Enclosure of Owner.</p> <p>Held, further, that the word “enclosure” imported land enclosed with some visible or tangible obstruction, as a fence, for the protection of the premises against encroachment, and did not include the cart of defendant when on the highway.</p>

<p>Assumpsit. Heard on petition of plaintiff for new trial, and petition granted.</p>

<p>Trespass on the Case for negligence. Heard on demurrer to fourth count of declaration, and demurrer sustained.</p>

<p>(1) Landlord and Tenant. Estate for Years. Termination oj Tenancy.</p> <p>A. made a parol lease of premises to B. for one year from the first day of November, 1900, arid died on the first day of March, 1901. B. occupied the premises under the lease until November 1, 1901, and continued in occupation, although served with a notice by the executor of A. on the first day of April to quit and deliver up possession on the fifth day of that month, he claiming to be a tenant from year to year by virtue of such occupation, and entitled to a quarter’s notice ending November 1, 1902:&emdash;</p> <p>Held, that, as the agreement as to time was definite, the letting terminated at that time under Gen. Laws cap. 269, § 6, and B. became a tenant at sufferance thereafter, subject to be divested of the same by notice to quit, which was duly served.</p> <p>■Qucere, if the rule would have been different had A. lived and permitted B. to continue in occupation beyond the time fixed.</p>

<p>(1) Mortgages. Sales. Trusts.</p> <p>The fact that a mortgagor did not see fit to prevent a sale under the mortgage in no way prejudiced her rights against one whom she seeks to hold as a trustee for her in the purchase of the estate at the sale.</p> <p>(2) Mortgages. Purchasing Property by Mortgagor.</p> <p>A mortgagor may bid for and purchase the mortgaged property at a foreclosure sale.</p> <p>(3) Trusts. Equity.</p> <p>A bill which alleges that respondent was enabled to secure land at a foreclosure sale by virtue of an understanding amounting to a promise on his part to purchase it for the complainant, the mortgagor, and that the latter parted with her interest in the land upon the faith of such promise, is sufficient to charge the respondent as trustee for the complainant and to entitle complainant, in the absence of any denial of such allegations, to relief.</p>

<p>Assumpsit. Heard on petition of plaintiff for new trial, and petition granted.</p>