Volume 25 — Rhode Island Reports

<p>(1) Wills. Trusts. Payment of Debts. General and Specific Legacies. Subrogation.</p> <p>Testatrix left her estate in trust for the benefit of her son for life, and. after his death to his children, naming said son as residuary legatee and devisee. By a codicil testatrix directed the trustee to pay the indebtedness of her son to the X bank, provided said trustee receive from said bank the shares of stock of the Y. Co. held by said bank as collateral to said indebtedness, evidenced by a note. Prior to the execution of the codicil testatrix had guaranteed the payment of the note to the bank.</p> <p>At the time of the execution of the.will testatrix was not possessed of property much, if any, in excess of the amount required for the general and specific devices and legacies of the will and to pay debts. At the time of the codicil testatrix’s estate had been reduced, and at her death it was still further reduced, and consisted, besides the real estate and personal property specifically bequeathed, of other personal property to an amount somewhat in excess of that required to pay debts and funeral expenses, but not enough to pay general pecuniary legacies. Upon the question out of what funds to pay the indebtedness to the X. bank:—</p> <p>Held, that the clear intent from the language of the codicil, reinforced by the scheme of the will, was that the trustee should take up the note, receive the collateral, and apply it by way of subrogation to reimburse her estate so far as sufficient.</p> <p>Held, further, that the word trustee must be construed to mean executor.</p> <p>(2) Trust Estates. Life Tenant and Remainder-man. Payment- of Taxes.</p> <p>By a clause of the will testatrix devised a farm in trust, the trustee to collect the income and, after paying taxes and expenses, to pay over the residue to her son, provided that the son might have the privilege of living on said farm in lieu of income therefrom:'—</p> <p>Held, that the taxes and repairs should be paid from the income, or, in the event of the son living there, by him.</p> <p>(3) Taxes. Trust Funds. General Administration.</p> <p>By the will the estate was divided into several trust funds:—</p> <p>Held, that the cost of general administration, including proving the will, paying debts, and transferring legacies (not including legacy or succession taxes), must be borne by the estate as a whole, but that each trust fund should be taxed separately and pay its own tax and expenses of management.</p> <p>(4) Wills. Probate Law and Practice. Order of Liability for Payment of Debts.</p> <p>Where the will does not make the debts of the estate chargeable upon any particular part thereof, the personal estate is primarily liable for the payment of the indebtedness, in the following order:</p> <p>1. General or residuary personal estate.</p> <p>2. General legacies and devises, contributing ratably inter se.</p> <p>3. Chattels and real estate specifically bequeathed and devised, contributing pro rata.</p> <p>(5) General and Specific Legacies and Devises.</p> <p>General and specific legacies and devises defined, and those in the case at bar discussed.</p> <p>(6) Residuary Estates. General and Specific Legacies.</p> <p>Where the residuary estate is more than sufficient to pay debts, the general pecuniary legacies of a will are to be paid out of the residuary estate, if sufficient; if not, in proportion.</p> <p>Neither the income nor any portion thereof of a specific bequest can be applied towards payment of general legacies.</p>

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

<p>Bill in Equity.</p>

<p>(1) Mortgage Sales. Notice of Sale.</p> <p>A mortgage sale is not void because advertised "By order oí the mortgagees” instead of “By the assignees of the mortgagees.”</p> <p>(2) Mortgage Sales. Notice of Sale.</p> <p>The notice of a mortgage sale stated that the sale would be “on the premises.” . The land consisted of.three parcels. A sale was held on each parcel, and the holder of the mortgage bid one dollar over and above the amount due on the mortgage for each of the parcels:—</p> <p>Held, that, as it appeared it was understood by the parties that this constituted but one sale of the property, although irregular, the sale would not be avoided on this ground.</p> <p>(3) Mortgages. Foreclosure.</p> <p>Foreclosure without sale is a satisfaction of the debt secured only to the amount of the value of the property foreclosed.</p> <p>(4) Mortgage Sales. Inadequacy of Price.</p> <p>At a mortgage sale the mortgagee refused to state the amount due under the mortgage, and no such amount was stated at the sale. The bid by the mortgagee was one-dollar over and above the amount due:—</p> <p>Held, that the court would hear testimony as to the amount due, before setting aside the sale on the ground of inadequacy of price.</p>

<p>Case stated for the construction of a will.</p>

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

<p>(1) Railroads. Statutes. Injury by Fire from Engines. Damages. Bill of Particulars.</p> <p>Section 2 of an act entitled “An act in amendment of an act entitled ‘An act to incorporate the New York, Providence & Boston R. R. Co.,’ ” passed at the June session, A. D. 1836, provides: “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 or by those in their employ, 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.” Defendant succeeded the said railroad company, and was liable in this ease to all the duties, liabilities, and obligations imposed by said act upon said corporation.</p> <p>After verdict for plaintiff, on petition for new trial:—</p> <p>Held, that a bill of particulars, giving the number of acres of each kind of wood burned, years of growth, kind of fence, etc., destroyed by fire, was sufficiently definite without giving the value of the various items, the declaration furnishing the gross amount of damage claimed.</p> <p>(2) Evidence. Fires set by Engine.s.</p> <p>Held, further, that evidence as to fires originating prior and up to the time of the fire in this case, and of cinders lying alongside the track, either inside or outside the defendant’s land; and as to whether locomotives of defendant were in the habit of throwing off sparks and cinders prior to the date of the fire; and whether these sparks and cinders were capable of igniting fires, or of such a nature that they could and did ignite fires, was properly admittted.</p> <p>(3) Damages.</p> <p>Held, further, that, where the declaration alleged the damages to be a specific sum, and the declaration and bill of particulars gave details of the kind and amount of damage done, it was a sufficient allegation of damage to support the verdict.</p> <p>(4) Evidence. Prima Facie Proof. Agency.</p> <p>Plaintiff offered in evidence a relocation of said road as authorized under section 10 of said act, for the purpose of showing an acceptance of the provisions of the act. The plan and report filed for record in 1836 purported to be filed by the executive committee of the company, and stated it was filed by said railroad and in compliance with the act of 1836. It was not denied that the members of the committee were dead:—</p> <p>Held, that the evidence was prima facie admissible and sufficient without .strict proof of agency, in the absence of any proof to the contrary by defendant, who had the best evidence exclusively within its control.</p>

<p>(1) Landlord and Tenant. Ejectment. Evidence.</p> <p>Evidence tending to prove that defendant, in an action of ejectment, never had authorized the surety on the statutory bond given by the defendant, on claim of jury trial in the action (who had collected rent accruing from defendant and paid it to plaintiff to protect himself), to make or agree to reservations contained in receipt given by plaintiff for said rent:—</p> <p>Held, properly admitted.</p> <p>(2) Landlord and Tenant. Lease. Breach, single or continuing. Waiver.</p> <p>Where a condition in a lease is continuous, a waiver only discharges the particular breach.</p> <p>A. rented a store to B. with covenant against the sale of liquor on the premises. B. sub-let the premises as a liquor saloon. Subsequently A. accepted rent from B., and thereafter brought ejectment:—</p> <p>Held, that the breach of the covenant was continuous, and that acceptance of rent, even with knowledge, was not a waiver of the right to maintain ejectment for a subsequent and continuing breach.</p>

<p>Bill in Equity. For statement of facts see 24 R. I. 264, and rescript filed October 24, 1902.</p>

<p>(1) Contracts. Offer. Acceptance. Withdrawal of Offer.</p> <p>A. being indebted to. B. on a mortgage note for $200, B. wrote A. August 1, “I am willing to allow you $20 discount if you can raise the money or find somebody else to take it up this month.” August 8, A. replied, by letter, “I would like to accept the offer, and expect to have the money for it in about two weeks.” August 21, B. notified A., by letter, that he had sold the mortgage for its face. August 30, A. went to B. and offered to pay the $180, but made no formal tender:—</p> <p>Held, that the payment of the money before it was due was a good consideration for the contract.</p> <p>Held, further, that the purpose and effect of B.’s letter of August 21 was a revocation of his offer.</p> <p>Held, further, that the terms of the letter of A. of August 8 were ambiguous, and hence there was no acceptance of the offer.</p>

<p>(1) Mechanics’ Liens. Notice. Owner of Land.</p> <p>Gen. Laws cap. 206, § 5, provides “that no lien shall attach for materials furnished, unless the person furnishing the same shall, within sixty-days after such materials are placed upon the land, give notice in writing to the owner of the property to be affected by the lien (if such owner be not the purchaser of the materials) that he intends to claim such lien,” etc.:—</p> <p>Held,, that the word “owner” means the owner of the fee when the fee in land is to be affected, and the owner of a leasehold or less interest when such less interest is to be affected.</p> <p>(2) Mechanics’ ¿Lien. Notice. Filing Account.</p> <p>Where the land to be affected by a lien lies in two towns, and no account for which the lien is claimed was filed in one town, the omission waives the right to a lien upon so much of the land as lies in that town, but is not effective as a ground of demurrer to the petition.</p>

<p>(1) Landlord and Tenant. Leases. Rent; Attornment.</p> <p>A. was the owner of a building on leased land. The lease expired June 30, 1899, but contained a clause providing that A. should give up possession when the value of the building, to be decided by arbitration, should be paid by the lessors. B. was tenant of a part of the building by lease from A., which expired June 30, 1899. . October 9, 1899, A. was paid the appraised value and gave up possession. B., without any agreement with A., continued to occupy his part of the building until A. vacated. April 20, 1899,*B. procured a lease of the land from the owners, beginning its term July 1, 1899, and running twenty years. A. brought suit to recover rent of B. from July 1 to October 9, 1899, at the rate formerly paid under the lease. B. pleaded in set-off a claim to all rents received by A. after June 30, 1899:—</p> <p>Held, that A. was entitled to hold the land and building as against his lessor, and all claiming under said lessor, until October 9, 1899.</p> <p>Held, further,, that B., as lessee holding over his term, was liable, at the option of A., to pay rent at the same rate as before.</p> <p>Held, further, that the lease from the owner of the land to B. was subject to the recorded lease of A., and could not annul any of its provisions.</p> <p>Held, further, that, conceding that the new lease operated, as between the owner of the land and B., as an equitable assignment of the ground rents accruing, B. could not sue A. in his own name for the rent, since A. had never attorned to him as landlord; and hence the claim could not be pleaded in set-off.</p> <p>(2) Landlord and Tenant. Ground Rent. Rents and Profits.</p> <p>Semble, that at the most A. would be liable to his landlord, from July 1 to October 9, for ground rent rather than for all rents and profits.</p>

<p>(1) Assault. . Criminal Law'. Indictments.</p> <p>An assault consists in an offer to do bodily harm, made by a person who is in a position to inflict it; therefore á request to charge that “the jury must find that the bullet went in the direction of R. or there can be no assault with a dangerous weapon” was properly refused.</p>

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

<p>Assumpsit on promissory note.</p>

<p>(1) Indictments. Partnership. Embezzlement.</p> <p>A. entered into an agreement ;with B. by which A. was entitled to one-half of the net profits of the business by way of compensation for services; the capital invested and all the proceeds thereof belonging exclusively to B.:—</p> <p>Held, that the agreement did not create a partnership.</p> <p>Held, further, that, if A. converted the money to his own use, he was guilty of embezzlement.</p> <p>(2) Criminal Law. Indictments. Embezzlement. Proof.</p> <p>Under Gen. Laws cap. 279, § 18, in an indictment charging embezzlement, it is not necessary to prove the particular amount charged in the indictment.</p> <p>(3) Embezzlement. Criminal Law. Defence. Advice of Counsel.</p> <p>Query, whether the retention of money under the advice of counsel is a defence to an indictment charging embezzlement.</p>

<p>(1) Bill of Review. Equity. Limitation as to Time of Filing.</p> <p>Opinion in Williams v. Starkweather, 24 R. I. 512, affirmed.</p> <p>(2) Ignorance of Law by Non-Resident Executor.</p> <p>It is the duty of a non-resident who voluntarily assumes the office of executor in this State to acquaint himself with the statutes which direct and control his official actions.</p>

The statute referred to is as follows: “The town council of the town of Cumberland may appoint so many and such police constables for special duties, including a chief of police, as may from time to time be. determined upon, and may at any time suspend any such officer from his office upon charges of official misconduct or incapacity preferred by the chief of police: Provided, however, that the members of the paid police department of said town, including those now already…

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

<p>(1) Negligence. Independent Contractor.</p> <p>An opening was made in the sidewalk, opposite defendant’s land and building, for the purpose of setting up machinery in the building. The setting up of the machinery was done by a contractor. Plaintiff, a boy about four years of age, fell into the opening and was injured:—</p> <p>Held, that prima facie the duty to guard the opening was that of the owner, who was likewise the occupant. The burden, therefore, of showing that some other party was using, the opening and had the care of it was upon defendant.</p>

<p>(1) Probate Law and Practice. Appeal. Account of Administrator. Failure to File Account.</p> <p>The claim for compensation of an administrator who fails to file his account for more than thirty days after being cited so to do, without rendering to the Probate Court a satisfactory reason for his delay, is properly rejected under the provisions of Gen. Laws cap. 219, § 3.</p>

<p>(1) Wills. Appointment of Executors. Execution.</p> <p>An instrument executed with the prescribed formalities of a will, directing the payment of debts and appointing executors, but not otherwise affecting thé disposition of the property of testator, is properly admitted to probate as a will.</p>

<p>(1) Equity. Arbitration.</p> <p>A lease provided that at the end of the term lessor should have the right' to buy buildings on the land, built by lessee, at a price to be settled by three arbitrators, one to be chosen by each party and the third by these two. At the end of the lease, lessor took possession. The parties chose arbitrators, but they were unable to agree. Other arbitrators were chosen, and these also failed to argee. Lessee brought a bill in equity to have the value of the buildings settled by a master or in some other way. On demurrer:—</p> <p>Held, that there is a distinction between enforcing arbitration in executory contracts and those in which there has been part performance and the matter of arbitration is not the main part, but an incident of the contract; in the latter case, if the matter cannot be settled modo et forma, the court will substitute itself for the arbitrators.</p> <p>Held, further, that, where the method failed, it was immaterial whether it was owing to the conduct of the parties or of the arbitrators.</p> <p>Held, further, that complainant was entitled to relief.</p>

<p>(1) Assignment of Wages. Garnishment.</p> <p>A. made an assignment of his wages for one year to B. to secure a debt of $500. The assignment was duly recorded. B. collected all of A.’s wages and applied them to the reduction of the debt. Before the debt was paid B. loaned A. two further sums of money. At the time of attachment the original loan of $500 had been paid, but a part of the last loan had not been paid. On the question of charging the garnishee:—</p> <p>Held, that the purpose of the statute requiring assignments of wages to be recorded was simply to give notice of the fact of an assignment.</p> <p>Held, further, that the creditor had all the notice that the statute required, and a further loan in good faith was not invalid because a new notice to the same effect was not given.</p> <p>Quaere, if, knowing the amount of the debt and that it had been paid, one should give credit.</p>

<p>(1) Statutes of Limitation. Absence from State.</p> <p>Pub. Stat. 1882, cap. 205, § 5, providing that “If any person against whom there is or shall be cause for any action, hereinbefore enumerated, in favor of a resident therein, shall at the time such cause accrue be without the limits of the state, or, being within the state at the time such cause accrue, shall go out of the state before said action shall be barred by the provisions of this chapter, and shall not have or leave property or estate therein that can by common and ordinary process of law be attached, then the person entitled to such action may commence the same, within the time before limited, after such person shall return into the state in such manner that an action may with reasonable diligence be commenced against him by the person entitled to the same,” does not add a certain increment to so-much of the prescribed period of limitation as has already passed, but fixes a new time for the prescribed period of limitation to begin.</p>

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

<p>Indictment, charging murder.</p>

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

<p>(1) Negligence. Duty to Trespasser.</p> <p>Declaration for negligence stated in one count that plaintiff, a child of six years of age, got upon a low gear driven by defendant’s servant upon a highway; that the servant, in the course of his employment, undertook to eject plaintiff, but so carelessly ejected him as to cause him, while exercising due care, to fall in front of one of the wheels, which, passing over his body, severely injured him. On demurrer:—</p> <p>Held, that the negligence of defendant’s servant, by which plaintiff was injured, was not set out with sufficient definiteness. As it was the right of the driver to eject the plaintiff, no cause of action was stated without averring how he overstepped his right.</p> <p>(2) Negligence. Duty to Trespasser.</p> <p>A second count alleged that, in view of the extreme youth of plaintiff, it was the duty of defendant and his servant to use reasonable care, in removing plaintiff, to avoid causing injury and to give plaintiff an opportunity to get off without injury; but that the driver, while the team continued travelling, in a threatening manner ordered plaintiff to get off, and that plaintiff, in the exercise of due care, but through fear and the motion of the low gear, in trying to comply with the order was caused to fall to the ground and was injured, On demurrer:—</p> <p>Held, that it was a question for the jury, on such state of facts, whether the driver was negligent or not.</p>

<p>Criminal Complaint.</p>

<p>(1) Contracts. Statute of Frauds. Promise in Writing to Pay Debt of Another.</p> <p>Plaintiff sues A. to recover price of goods delivered to X. The books of plaintiff show that credit was given to X. as well as to A.:—</p> <p>Held, that the promise of A., if any were made, was collateral and not binding unless in writing.</p>

<p>(1) Criminal Law. Evidence.</p> <p>The silence of a party while under arrest when charges or accusations are made against him cannot be used as sustaining the hypothesis of acquiescence therein.</p> <p>(2) Criminal Law. Evidence. Hearsay.</p> <p>Semble, that the evidence ’of police officers who interrogated deceased, through an interpreter, in the presence of defendant, as to what took place at time of the assault, and as to the responses made thereto through the interpreter, is inadmissible, as being hearsay testimony.</p> <p>(3) Criminal Law. Evidence. Res Gestee.</p> <p>Rule in State v. Murphy, 16 R. I. 528, that “declarations shown by common experience to be the instinctive result from an act are part of the act, even if made five or fifteen minutes after the act,” affirmed.</p>

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

<p>(1) Equity. Injunctions. Agreements in Restraint of Trade. Contracts. Statute of Frauds.</p> <p>A bill in equity seeking a perpetual injunction alleged that respondents entered into an agreement with complainant to convey to him their business, together with the good will thereof, and further agreed that they would not engage in the business, either directly or indirectly, within a specified territory, and further agreed that they would execute a writing not so t.o engage in said business. Respondents denied making the agreement not to engage in business and to execute a writing to such effect. A bill of sale of the property in question was executed by respondents, which, after describing the articles conveyed, contained the clause, “together with the good will of said business.” Upon objection to the introduction of oral testimony as to the making of the disputed agreement:—</p> <p>Held, that the agreement was not within Gen. Laws cap. 233, § 6, clause 5— the statute of frauds — the statute being confined to contracts which by agreement are not to be performed within a year, and not to such as may by circumstances be postponed beyond the year.</p> <p>(2) Varying Written Contract.</p> <p>Held, further, that the testimony was inadmissible as tending to vary a written contract by parol.</p> <p>(3) Goodwill. Agreements in Restraint of Trade. Unfair Competition.</p> <p>Held, further, that, notwithstanding that respondents sold the good will of the business, they had, in the absence of an express stipulation to the contrary, the right to re-engage in a similar business in the same neighborhood.</p> <p>Held, further, that respondents would not have the right to attempt to secure the patronage of their old customers or to induce them not to deal with complainant.</p> <p>(4) Contracts. Consideration.</p> <p>Held, further, that an agreement by respondents, subsequent to the making of the bill of sale, to malee another writing when desired by complainant to embody the agreement not to re-engage in the same business, would be without consideration and unenforcible.</p>

<p>Bill in Equity.</p>

<p>Assumpsit for money had and received.</p>

<p>Petition for perpetual stay of execution.</p>

<p>Petition for re-argument of bill in equity, decided in 25 R. I. 142.</p>

<p>Petition seeking to vacate a decree of divorce heretofore entered.</p>

<p>(1) Criminal Complaint. Arrest of Judgment. Death of Complainant. Abatement.</p> <p>In a criminal complaint the fact that the complainant is a private individual who has furnished surety for costs does not have the effect of rendering the prosecution a private one. The State is the real party in all criminal proceedings, although, under certain circumstances, it is an individual complainant who sets the criminal law in operation. Hence a complaint is not abated after the conviction of defendant, and pending his petition for new trial, by the death of complainant.</p> <p>(2) Death of Complainant. Bight to Further Prosecute, in whom.</p> <p>In a criminal complaint, upon the death of the individual complainant after the conviction of defendant, and pending his petition for a new trial, either the surety for costs or the proper town authorities may take such further proceedings as may be necessary to dispose of the case.</p>

<p>(1) Mechanics’ Liens. Acknowledgment of Service.</p> <p>An agreement by the attorney of a party to a cause to acknowledge service of process, made within the period during which service can be made, is a waiver or acknowledgment of service, and it is immaterial that the actual endorsement of such acknowledgment is made after such period has expired.</p> <p>(2) Mechanics’ Liens. Commencement of Legal Process. Piling Petition. Notice to “Owner.” Notice to Trustee in Bankruptcy and to Bankrupt.</p> <p>A petition to enforce a lien was filed November 19, 1902, against X. X. was adjudged a bankrupt November 21, 1902. December 2, a trustee in . bankruptcy of X. was appointed, and the title of trustee to the property of X. vested in him as of November 21. The citation was served upon the trustee twenty days before the return day. After the adjudication in bankruptcy, X. acknowledged service of the citation. On motion by the trustee to dismiss the petition on the ground that X. was giving petitioner a lien to the prejudice of ,the general creditors:—</p> <p>Held, that the lien originated when the work began, and becameo perative when the first notice was given. While the lodging of the account for the purpose of commencing legal process is jurisdictional, the petition is not of that character.</p> <p>Held, further, that the trustee in bankruptcy was vested with title by operation of law, and was the “owner” within the meaning of chapter 206, section 10, and notice to him was both proper and necessary.</p> <p>Held, further, that the service upon the trustee, as owner, was a sufficient service of the citation.</p> <p>Held, further, that the acknowledgment of service by X. could only affect his possible reversion in the property, and for the same reason he was a proper party.</p> <p>(3) Interest of Lessee. Mechanics’ Liens. Process.</p> <p>Where the lienee is lessee of the property in question, and the petition cites the lease, the lien is not lost because the petition claims a lien generally under chapter 206 instead of under section 2 of the chapter.</p> <p>(4) Attaching of Lien. Commencement of Legal Process.</p> <p>There is nothing in chapter 206, “Of the lien of mechanics,” to warrant the construction that a lien of any kind does not attach until the notice of the commencement of legal proceedings.</p>

<p>(1) Master and Servant. Unsafe Appliance. Contributory Negligence.</p> <p>The fact that a stool furnished a servant by the master was of such a character as to tip over upon slight contact with other bodies does not make it an inherently dangerous article and excuse a servant from contributory negligence who, having arisen from the stool, steps backward and sits down without knowing whether the stool is there or not. If the appliance is reasonably safe and of such a character as can, with the exercise of due-care, be used without danger to the servant, it is all that the law requires.</p>

<p>Bill in Equity. Heard on motions to amend bill, to re-argue, and to stay proceedings before master. See also 19 R. I. 413, and 23 R. I. 274.</p>

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

<p>Debt on bond of executor.</p>

<p>(1) Necessaries. Legal Services.</p> <p>Pub. Laws cap. 841, in amendment of clause 12 of section 5 of chapter 255 of the General Laws, Of exemptions from attachment: "The salary or wages due or payable to any debtor not exceeding the sum of ten dollars, except when the cause of action is for necessaries furnished the defendant,” does not. restrict the necessaries mentioned to articles of food, clothing, or shelter, or other articles of a similar nature, but includes services rendered as an attorney.</p>

<p>(1) Street Railways. Negligence. Burden of Proof.</p> <p>The burden of proving that plaintiff was in the exercise of due care at the time of the accident is maintained by evidence that plaintiff was quietly sitting in the car at the time.</p> <p>(2) Burden of Proof. Presumption of Negligence.</p> <p>Res ipsa loquitur is the maxim applicable to cases where the cause of injury to passengers arises from the breaking down of apparatus wholly under the control of the common carrier.</p> <p>(3) Negligence of Common Carrier.</p> <p>Where an accident occurred from the breaking down of apparatus of an electric car, but it appeared that the apparatus was manufactured by a reputable concern; that it had never been used before upon any car; that it had been inspected by an expert of defendant on the afternoon before the accident and found to be in good order; that the car was going at a low rate of speed and that the cause of the break was in no way apparent, and no evidence was offered by plaintiff to show that the apparatus was inferior or weak and no attempt was made to discredit the inspection, a verdict for defendant will not be set aside.</p>

<p>Bill in Equity for instructions.</p>

<p>(1) Pleading and Practice. Demurrers.</p> <p>Where the record certified to the Appellate Division contains both substantial and formal demurrers to the pleadings, the court will not consider the demurrers to the substance until all matters of form have first been settled in the Common Pleas Division.</p>

<p>(1) Interpleader. Gifts.</p> <p>In order to secure a certain fund in bank, the mother and father of X. had a writ issued on a claim for board. A settlement was made allowing a certain sum to be paid in money, and the balance was deposited in the name of the mother of X. A pass-book was issued to her, and the book of X. was surrendered to the bank. The deposit remained for fifteen years under her full control, and X. never demanded either principal or interest.</p> <p>On interpleader between X. and the executor of the estate of the mother, X. claiming that the fund was placed with his mother for safe keeping:—</p> <p>Held, that the facts were sufficient to establish either a gift or payment of the fund to the mother by X.</p> <p>(2) Interpleader.. Trusts. Evidence.</p> <p>Where letters are relied upon to establish a trust, they must identify the property and disclose the terms of the trust.</p>

<p>(1) Negligence. Duty of Manufacturer of Article not Inherently Dangerous to Purchaser.</p> <p>Plaintiff, a barber, bought of a dealer in barbers’ supplies soap made by defendant called C. & Co.’s shaving soap, which was placed by defendant on the market and intended to be used in shaving by barbers and others. Plaintiff alleged that defendant was negligent in manufacturing the soap, so that it contained an excess of alkali whereby the faces of his customers were burned, and in consequence thereof plaintiff lost their custom: — •</p> <p>Held, that, as alkali was a necessary ingredient of soap, unless the defendant knew of the excess he was not liable.</p>

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

Assumpsit. A writ of attachment was sued out of a District Court with direction to attach certain funds in the hands of the John Hancock Life Insurance Company. This writ was served on the insurance commissioner, who in turn served a copy of the writ he received on the treasurer of the John Hancock Mutual Life Insurance Company, a foreign corporation.

<p>Indictment for maintaining a common nuisance.</p>

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

<p>(1) Stockholders’ Liability. Corporations. Debt. Pleading. Executions.</p> <p>A declaration in an action of debt, under Gen. Laws cap. 180, § 22, against a stockholder' of a manufacturing corporation to enforce the liability'of the stockholder for the debts of the corporation, which alleges that at the time of the rendition of the judgment the corporation was insolvent and did not have property upon which an execution could have been levied for the satisfaction of the judgment against it, is not demurrable.</p> <p>The thing involved is the impossibility of recovering the judgment from the principal debtor; and while the return of an execution unsatisfied is the best proof of such fact, the plaintiff may show the impossibility by other methods.</p>

<p>(1) Probate Law and Practice. Guardian’s Bond. Action against Ward. Description of Guardian.</p> <p>An action against “A., guardian of B.,” binds A. personally, and the description lias no legal effect; and the judgment creditor cannot maintain an action under Gen. Laws cap. 196, § 26, upon the bond of the guardian.</p> <p>(2) Pleading and Practice. Action against Ward.</p> <p>To become a creditor of the ward, it is necessary for a party to have had his account allowed by the guardian; or, if rejected by the latter, to have brought suit under the provisions of Gen. Laws cap. 196, § 29.</p>

<p>(1) Trusts. Agreement to make Will. Contracts. Equity.</p> <p>A. contracted with B. in writing that in consideration that A. would leave his business in X. and go to Y., taking his father, the brother of B., to visit the latter, and for A. to see how B. conducted his business and whether A. would be content to leave X. and settle in Y. and run the business of B. after the latter’s decease, that B would make his will, giving his property to A. for life, and after his decease to the son of A. Pursuant to said contract A. left X., bringing his father to Y. that B. might see them, and that A. might learn about the business, expending about $1,000; A. informed B. that he was content to leave X. and take the business of B. B. died, leaving a will giving his estate to C. On bill asking that the legatees and devisees be declared trustees for A., on demurrer:—</p> <p>Held, that the bill stated a case cognizable in equity.</p> <p>Held, further, that the bill showed a valid consideration for the contract.</p> <p>Held, further, that, as the bill alleged a contract in writing, it was not within the statute of frauds, but otherwise, as there had been part performance, the statute would not apply.</p> <p>(2) Election of Remedies. Wills.</p> <p>Held, further, that an appeal by A. from the probate of the will was not inconsistent with the relief sought by the bill, and was not an election of remedies.</p>

<p>Bill in Equity.</p>

<p>Trespass Quare Clausum Fregit.</p>

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

<p>• Malicious Prosecution.</p>

<p>Assumpsit on policies of insurance.</p>

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

<p>(1) Executors. Release. Accounting.</p> <p>Executors conveyed to residuary legatees all of an estate in their hands, and thereupon the residuary legatees executed an agreement, discharging the executors from all claims, “excepting what claim there may be, if any, against (the executors) on account of any loss that may come on the claim of 18,949 against the estate of C.” Subsequently a decree of the Probate Court was entered requiring the executors to file an inventory and to settle their account with the estate. On appeal:- — •</p> <p>Held, that the release was a full discharge of the executors from all liability until the estate of C. should be settled and the loss ascertained. Held, further, that, as the estate had not yet been settled, the proceeding was premature and the decree would be reversed.</p>

<p>(1) Executors. Joint and Several Bonds. Right of Executor, as Legatee, to Sue Sureties for Breach by Co-executor.</p> <p>Pub. Stat. cap. 184, § 10, provides, '“Every executor shall give bond.” A. and B., joint executors of the estate of O., gave a joint and sfeveral bond, with sureties. A. was also a legatee:—</p> <p>Held, that under such a bond it was the privilege of a creditor to sue all jointly, or one separately, for the full amount; and that, as several bonds, the sureties were sureties severally of each executor. Hence, either executor might sue the other in a distinct right, as a legatee,” for his separate and personal claim.</p>

<p>(1) Promissory Notes. Parties. Joinder. Pleading.</p> <p>The purpose of Gen. Laws cap. 233, § 21, which provides that a plaintiff may join in the same action “all or any persons severally, or jointly and severally, liable” on a promissory note, is to enable a plaintiff to join persons liable severally, or jointly and severally,' and cannot be construed conversely to exclude joint parties. The omission of a joint party is covered by section 23, which provides that no action shall be defeated by the non-joinder of parties, but that new parties may be summoned in.</p> <p>(2) Promissory-Notes. Parties. Pleading. Non-joinder.</p> <p>In case of a joint note, where one of the parties dies the administrator cannot be made a party, but separate actions must, under Gen. Laws cap. 233, § 17, be prosecuted against each party. National Bank v. Galvin, 20 R. I. 159, as to ordering in the other party to a joint contract where the action was against an executrix, disapproved.</p>

<p>Habeas Corpus.</p>

<p>(1) Master and Servant. Negligence.</p> <p>Plaintiff, a foreigner, ignorant of the English language, with other servants was engaged in lifting a heavy beam, when it rolled over sideways and fell, breaking plaintiff's leg: The declaration alleged that the injury was caused by the negligence of defendant in not providing stagings, jacks, derricks, or similar mechanical devices for raising the timber. It appeared in evidence that three hundred and forty-nine similar beams were safely placed in position by hand:—</p> <p>Held, that the proximate cause of the accident was the neglect of the employees to use their hands properly, not that of the master to furnish other instruments.</p> <p>(2) Obvious Risk.</p> <p>A further count alleged that plaintiff was ignorant of the danger of assisting in lifting a heavy beam, and particularly of the danger that if he stood under the beam it might fall and injure him:—</p> <p>Held, that the risk was obvious.</p>

<p>Petition for instructions.</p>

<p>Probate Appeal, after verdict sustaining will.</p>

<p>(1) Parent and Child. Bight to Services. Emancipation. Implied Contracts. Suit for Services by Minor.</p> <p>Where a minor whose father was dead went to live with the defendant as her child, under an arrangement made with the mother who still retained her parental rights over the minor, an action for services cannot be maintained by the minor against the defendant, since the contract is one between the mother of the minor and the defendant; and, further, because under a family relationship of such a nature no recovery can be had where there is no express contract to pay.</p>

<p>(1) Mechanics’ Lien. Electric Installation.</p> <p>A contractor who furnishes labor and materials in instaEing electric wires, conduits, switches, etc., in a house, to be used for lighting the same, is entitled to a lien therefor under Gen. Laws cap. 206.</p>

<p>Petition for mechanics’ lien.</p>

<p>(1) Replevin. Sales. Mortgages.</p> <p>A. had a contract with B. to make carriages for A. The money was fur- , nished by C., who held mortgage bonds of A. The time for the completion of the work having expired, A. demanded security of B. for the money he had paid, and a bill of sale of all the property pertaining to the contract was given by B. to A. A. transferred this bill of sale to C., as mortgagee, September 20, 1901. September 17, 1901, A. brought suit against B., attaching its property, and on September 21 removed the property covered by the bill of sale to a shop which C. had secured. B. attached the property covered by its bill of sale September 23, and on the same day C. brought replevin:—</p> <p>Held, that C. was the equitable, if not the legal, owner of the property, the payments showing a consideration for the bill of sale, and as between the parties it was valid.</p> <p>Held,, further, that, taking the bill of sale to be a mortgage, it was still good between, the parties, although unrecorded; and having been transferred, C. was a mortgagee in possession.</p> <p>Held, further, that C. as mortgagee in possession was entitled to maintain replevin, and was not restricted to an order of sale according to the statute.</p> <p>(2) Pleading. Verdicts.</p> <p>In an action of replevin, where defendant pleads title in another, a verdict that the property was in the plaintiffs is responsive to the plea, although it omits the converse of the finding — that the property was not in the party set up as owner in the plea — and the verdict will stand.</p>

<p>Trespass Quare Clausum.</p>

<p>(1) Wills. Estates for Life. Rule in Shelley’s Case.</p> <p>Testamentary devise as follows: “1. I give and devise to my son A. the house and lot warein he now lives; and of A. should dye his whife B. then the above described property is to go to her for and during her natural life and no longer.</p> <p>“2. I give and bequeath to my whife C. all my real and personal estate for and during her natural life.</p> <p>“6. I give and devise to my son A; All the rest and residue of my estate of every kind and Nature and waresoever sittuated or lying. After the deth of my wife C. by his paying all my just dets funeral charges and settleing of my estate and erecting suitable grave stones at our graves my will is that after the deth of my son A. the above property must go to the next of cind:”—</p> <p>Held, that, under the first clause A., took a life estate 'only in the real estate therein described, the provision that the property at his death should go to his wife B. for life showing by plain implication that A. took for life only. The same limitation preventing the operation of Gen. Laws cap. 203, § 14, providing that when any estate is devised without words of limitation such devise shall be construed to pass the fee. Held, further, that, upon the death of testator’s widow, C., his son A. took the residue for life, subject to the payment of debts and legacies.</p> <p>Held, further, that the abrogation of the rule in Shelley’s case, by Gen. Laws cap. 201, § 6, prevented the vesting of the fee of the real estate which C. took for life in A. at her death, as well as the vesting of the fee of the estate devised to A. by the first clause of the will.</p> <p>Held, further, that, giving effect to both the first and second clauses of the will, the latter must be held by implication to cover only the remainder of the estate, not theretofore devised, and hence 0. took no interest in the real estate described in the first clause.</p>

<p>(1) Estates Tail. Wills. Heirs of the Body.</p> <p>Testamentary bequest (4th) to A., for and during his natural life, the profits and income of 16 shares of stock, and after his death the principal of said stock to the heirs of his body, and in default thereof to the children of B., equally:—</p> <p>Held, that the testator used words which, if applied to real estate, would create an estate tail; and which, therefore, applied to personalty made the gift absolute in the first taker.</p> <p>(11th) In a bequest of the same character, the words were “Unto the heirs of him, the said A., if any he have: ”—</p> <p>Held, that the intent was to give the remainder to a particular class of, rather than to the general, heirs; and, having used the words “heirs of the body” in the preceding clause, and showing in this clause that he had in mind an uncertain class, it was evident the testator intended the same class of heirs, and that the omission of the words “of the body” was accidental, and it therefore fell under the same" construction and rule.</p>

<p>(1) Expert Witnesses.</p> <p>The competency of persons offered as experts is generally a question to be decided by the trial court. Unless the ruling of the court is palpably and grossly wrong, it will not be reversed by the reviewing tribunal.</p> <p>(2) Opinion. Evidence. Expert Witnesses.</p> <p>A question calling for the opinion of an expert, offered by the plaintiff in an action for personal injuries, as to the cause of the accident, is inadmissible and reversible error where it appears that the witness was not testifying from expert knowledge on the subject, but merely as to his opinion based upon the happening of the accident.</p> <p>(3) Master and, Servant. Negligence. Fellow-Servant.</p> <p>A staging used in unloading coal ran upon rollers, and was drawn into the building, when not in use, by the power of an electric engine, applied by means of a boom and rope running over blocks hooked into eye bolts. ■ It was the duty of intestate to fix the tackle and blocks in their places when it was desired to draw in the staging, and give a signal to the engineer to start the engine, and when the staging was in as far as desired to signal the engineer to stop. The accident happened by the breaking of a bolt. It was established by expert and other evidence that the cause was not from' any defect in the capacity or adjustment of the bolt, but by the continued .application of the power after the staging could be pulled no further:—</p> <p>Held, that the accident happened either through failure of deceased to give the signal in due time, or because the engineer failed to hear it or neglected to obey it; in either case the fault of deceased or his fellow-servant.</p>

<p>Present: Stiness, C. J., Tillinghast and Dubois, JJ.</p> <p>(1) Taxes. Franchise Tax of Corporation not a Property Tax.</p> <p>The assessment and payment of a tax by way of a license for its corporate franchise by a foreign corporation, doing business in this State, paid in the State where it is located, is not a bar to the assessment and collection of a tax on the market value of the shares of the corporation in this State, and such stock is not exempt from taxation under Gen. Laws cap. 45, § 10. i</p>

<p>(1) Probate Law. Promissory Notes. Husband and Wife.</p> <p>A. and his wife B. loaned to C. six hundred dollars, and took a note, payable to “A. or B.” A. furnished $500 of the sum advanced, and B. $100. C. paid $200 on account of the note to B: in her lifetime, and after her death $300 was paid to A.:—</p> <p>Held, that, as between A. and B., it was. competent for either of them to show the true state of facts relating to the loan, and it was error for the Probate Court to charge A., as administrator of B., with any part of the sum received by him on the note.</p> <p>(2) Husband and Wife. Communications Between Them.</p> <p>Under Gen. Laws cap. 244, § 37, preventing a husband or wife disclosing any communications between them during their marriage, the husband, after the decease of the wife, cannot testify as to any agreements between himself and his wife with reference to business relations between them, and a claim against the estate of the wife by the husband, based wholly upon such testimony, is properly disallowed.</p> <p>(3) Probate Law and Practice. Trusts. Equitable Conversion. Rents.</p> <p>A. and B., husband and wife, were tenants in common of certain real estate.</p> <p>B. by will directed her executor “as soon after my decease as he can conveniently do so, to sell my interest in the estate, and to divide the fund” among certain persons.</p> <p>The administrator, c. t. a., collected the rents of the estate. Upon the question of charging the administrator with one-half of such rents:— Held, that the direction to sell amounted to an equitable conversion of the real estate into personalty and impressed it with a trust in favor of the beneficiaries.</p> <p>Held, further, that in this State the Probate Court has nothing to do with the real estate or the rents of real estate of a decedent until the proper steps have been taken to place such 'property in the hands of the executor or administrator for the purpose of settling the estate, except as may be directed by the will.</p> <p>Held, further, that the administrator held the rents as trustee for the beneficiaries and not as administrator, and hence was not chargeable therefor.</p>

<p>(1) Practice of Medicine. Indictments. Complaints.</p> <p>Pub. Laws cap. 340, amending Gen. Laws cap. 165, § 3, providing that complaints under the latter chapter shall be made by the secretary of the State Board of Health, has no relation to indictments.</p> <p>(2) Indictment. Criminal Pleading.</p> <p>It is not necessary for an indictment to use the exact words of a statute, nor to refer to the particular section on which the indictment is based, if it adequately charges the offence therein set forth.</p> <p>(3) Criminal Law and Pleading. Indictments.</p> <p>It is not necessary that an indictment should in every case negative all - exceptions in the statute on which it is based. The test of such necessity is to be determined by the nature of the exceptions as a part of the description of the offence or as a qualification of it.</p> <p>Gen. Laws cap. 165, of the practice of medicine, declares it to be unlawful for anyone to practice medicine, without the authority therein provided, but declares that the act shall not apply to certain cases:—</p> <p>Held, that the exceptions did not limit the offence by description or qualification, but were exceptions for special cases, which were matters of defence and need not be negatived in the indictment.</p>

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

<p>(1) Probate Law and Practice. Executors and Administrators. Statute of Limitations. Allowing Claims Presented.</p> <p>A. deceased November 28, 1895, and B. was appointed administrator and published notice of his qualification January 15, 1896. B. deceased July 2, 1898, and C. was appointed administrator de.bonis non August 1, 1898, publishing his first notice August 16, 1898.</p> <p>After decision (24 R. I. 493) sustaining defendant’s plea, based upon the special statute of limitations, that plaintiff did not bring action against the original administrator or against the administrator de bonis non within three years after the first publication of B.’s qualification as administrator, plaintiff replied that: (1) she presented her claim to B. within the time limited by law; (2) that B.j allowed the claim and promised to pay it; (3) that after the decease of B., and within the time limited by law, she presented her claim to the administrator de bonis non; (4) that said administrator de bonis non never filed in the Probate Court any statement allowing or denying the validity of the claim, and never gave notice that it was disputed:—</p> <p>Held, that the case was governed by the provisions of the Public Statutes and not by the General Laws, and, under the former, the administrator de bonis non was not obliged to file in the Probate Court any statement of claims allowed or disallowed by him.</p> <p>(2) Special Statute of Limitations. Waiver by Administrator.</p> <p>Held, further, that the special statute of limitations, which limits the time within which an action can be brought against an administrator in his official capacity, is imperative and cannot be waived by him. This statute absolutely extinguishes the right of the claimant, instead of affecting the remedy merely, and no admission or promise by the administrator can operate to affect the statute.</p> <p>Qucere, whether it is the duty of an executor or administrator to interpose the general statute of limitations, when available as a defence; but see Mason v. Tap, 23 R. I. 388.</p>

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

<p>(1) Taxes. Assessment.</p> <p>Pub. Laws cap. 944 (1901), provides: “The town of West Greenwich by its. assessors in office at the time of the passage of this act, or that shall be thereafter elected, is authorized to assess a tax for the year 1899 against, the W. Co. at the rate of $1.25 on each $100 of the ratable property of said company owned by it in said town at the time the above-mentioned assessment of 1899 was made, etc.”:—</p> <p>Held, that the authority to make the assessment was expressly given to the town, which had first to decide when it would order an assessment;, then, according to the time of the assessment, to which board it would commit such assessment; and that action by the board of assessors alone„ without action by the town, was void.</p>

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

<p>(1) Criminal Law. Marriage. Evidence. Husband and Wife.</p> <p>In a criminal prosecution, while evidence of cohabitation, of the conduct of the parties in holding themselves out as husband and wife, having children, etc., is not enough to establish a marriage, yet such evidence is admissible by way of corroboration of the existence of a marriage.</p> <p>(2) Criminal Law. Evidence. Marriage. Non-Support.</p> <p>In a criminal complaint for non-support, complainant testified that she was married to defendant by K., a justice of the peace, who gave her a certificate which was produced by her. It was never recorded, nor was there any record of the marriage. The word “copy” appeared on the paper. Defendant and K. subsequently prepared and caused to be recorded a bogus marriage certificate, for the purpose of having the record show a date for the marriage prior to the birth of the first child of the parties. Defendant denied any marriage with complainant.</p> <p>Held, that the certificate was properly admitted.</p>

<p>(1) Master and Servant. Notice of Defect.</p> <p>Although a defendant may not be the owner of the instrumentality causing the injury, nor responsible for its condition, yet after notice of its defective condition it is bound to use reasonable care that its servants shall not be injured thereby.</p> <p>'(2) Master and Servant. Duty to Provide Safe Place. Vice-principal.</p> <p>The rule of liability as to a master, for the acts of his servant, is that the character of the act, and not the position which a servant holds, is the decisive test. It is the master’s duty to see that the place of employment is reasonably safe for the servant to work in it. If this duty is entrusted to an employee, the latter stands in the place of the principal.</p>

<p>Opinion in Ennis v. Little, 25 R. I. 342, affirmed.</p>

<p>Trespass and Ejectment between landlord and tenant.</p>

<p>Present: Stiness, C. J., Tillinghast and Douglas, JJ.</p> <p>(1) Political Parties. Certificates of Nomination. Mandamus.</p> <p>The Secretary of State in receiving certificates of nomination of political candidates acts in a ministerial capacity, and mandamus will lie against him.</p> <p>(2) Political Parties. Determination of Members. Mandamus.</p> <p>The standing of a political party locally is determined by the whole party itself as an organized body, and the determination of the general officers of such party, upon the question of recognition of any portion as members of the party, is paramount.</p>

<p>(1) Tide-Flowed Lands. Public Waters. Rights of State and Town in same. Ejectment.</p> <p>In Rhode Island, the title to land below high-water mark was in the crown until the State became independent, and since that time all the power of king and parliament with respect to these lands has resided in the General Assembly.</p> <p>The grant in the charter of 1663 was ample to endow the colony with full dominion over the shore and tide-flowed land within the boundaries of the territory granted; so that, acting by the express authority of the crown, the colonial General Assembly had good right to regulate the use and improvement of such lands.</p> <p>By statute passed in 1707, the General Assembly granted to the several towns these powers, including the power to “lay out lots.”</p> <p>At a quarterly meeting of the freemen of Newport, in 1739, the town conveyed a portion of such tide-flowed land to parties from whom defendant derived his 'title.</p> <p>Plaintiff derived title by mesne conveyances from a deed from the city of Newport in 1863, made in execution of the power granted to the city by an act of the General Assembly passed in 1860, but which excepted from the operation of the deed any private rights included within the lands described:—</p> <p>Held, that the land was private property at the time of such last-mentioned grant, and hence was not included in the grant.</p>

<p>Appeal from the layout of a highway.</p>

<p>(1) Corporations. Rights of Minority Stockholders., Fraud. Deeds.</p> <p>The majority of the stockholders of a corporation hold a relation to the minority which imposes upon them duties similar to those of trustees. They have no right to make any sale of the property of the corporation for their own benefit, or to accomplish purposes of peculiar interest to themselves.</p> <p>A corporation voted to sell all of its property, and a committee was appointed for this purpose. The majority of the stockholders represented a policy opposed by the minority. Respondent stockholders formed a syndicate for the purchase of the property, which was sold to them by the committee for a sum less than its real value. The president, secretary, and treasurer thereupon executed a deed to the five members, one of whom was the treasurer:—</p> <p>Held, that the deed would be set aside, as a fraud upon the rights of the minority stockholders, it appearing that the sale was made, not in the interest of the corporation, but to accomplish the purposes of the majority.</p>

<p>Opinion in Thompson v. Dyer, 25 R. I. 321, affirmed, and reargument denied.</p>

<p>Trespass on the Case for negligence, by tenant against landlord.</p>

<p>(1) Riparian Ownership. Waters. Diversion of Waters. Municipal Corporations.</p> <p>The city of Woonsocket purchased a tract of land upon the banks of Crook Fall brook, a tributary of the Blackstone river, north of said river, and erected dams and reservoirs thereon. Neither land nor brook was included within the corporate limits of the city. The complainants, lower riparian proprietors upon the banks of the Blackstone river, claimed to be entitled to the unobstructed flow of the brook. The respondent city claimed the right to divert so much of the water of the brook as should be necessary for a water supply for domestic, sanitary, fire and other purposes, by virtue of riparian ownership:—</p> <p>Held, that a municipal corporation could not, from the mere fact of owning land upon a water course, acquire the right to divert the water in sufficient quantities to supply the domestic wants of -its inhabitants to the injury of the other riparian proprietors. The rights of the city as a riparian proprietor were limited to a reasonable use of the water, no greater or less than an individual proprietor would possess for his natural wants.</p> <p>(2) Continuing Trespass. Account. Interest.</p> <p>In the case of a continuing trespass, upon an accounting, it is improper to compound the interest annually.</p> <p>(3) Water Courses. Diverting Water. Riparian Ownership.</p> <p>In an action for the diversion of the water by an upper riparian proprietor, the burden of proof is upon the defendant to show the amount of water returned by him to the stream. The initial taking is a trespass, and the water diverted must be returned at the defendant’s peril, since the right to withdraw is not absolute, but contingent upon the water being returned.</p> <p>(4) Water Courses. Storage of Water. Riparian Ownership.</p> <p>In an action for the diversion of water by an upper riparian proprietor, the defendant is not entitled to any allowance for water stored by him in reservoirs during the rainy season, and subsequently released in the dry season when the supply of the stream was less. Such storage is as to the lower proprietors a gratuity.</p> <p>(5) Continuing Trespass. Account. Presentation of Claims.</p> <p>In a bill in equity seeking relief by injunction for a continuing trespass, such ground of relief carries with it as an incident the right to an account for past damages, and chapter 36, section 12, General Laws, requiring the presentation of claims to the city council, has no application.</p> <p>(6) Damages. Probable Damages.</p> <p>In a bill in equity seeking an injunction for the abatement of a continuing trespass, the decree sending the cause to a master directed him “to ascertain the probable damages of said complainants, since the filing of the bill of complaint, and for all probable future diversion of said waters;”—</p> <p>Held, that the court would decline to consider any question as to damages accruing after the filing of the bill.</p> <p>(7) Account. Interest.</p> <p>In a bill ih equity seeking an injunction for the abatement of a continuing trespass for the diversion of the water of a stream, the finding of the master that interest should be allowed at the rate of six per cent, from the date of the filing of the bill is correct.</p>

<p>(1) Equity. Highways. Damages. Attorney and Client. Accident and Mistake.</p> <p>A., deceased, providing by will that his wife should have the rents and profits of the real estate for life, and after her death his daughters B‘. and C. should enjoy the same for life or until their marriage, and then the estate should vest in fee in his heirs. In 1892 A. sold to the complainants, certain of his heirs, who with the respondents B. and C. were the owners of the fee subject to the estates for life, his business which he had carried on upon the land referred to, and thereafter the complainants carried on the same, and in 1900 erected on the premises a building set on posts, so that it could be removed. In 1901 a highway was laid out over a portion of this land. Complainants agreed- with the commissioners appointed to assess damages to allow for the land taken for the highway $1,500; for the building, $1,000; and for the injury done complainants’ business, $2,000. The commissioners filed a report stating'-that the heirs of A. had sustained damage to the extent of $4,500, and that they had agreed with them upon that sum; but omitted any statement as to how the amount was to be divided. This report was received and confirmed by the board of aldermen. From this decree complainants appealed; but upon advice of counsel that upon the appointment of a trustee to receive the award they would be given the amount they claimed, they discontinued the appeal. In May, 1902, a trustee was appointed under Gen. Laws, cap 71, § 16, to receive the award, with instructions to expend the sum of $1,500 for a lot of land and removal of buildings to the same, and to invest the balance. Complainants agreed to such appointment, by advice of counsel and ignorant of its terms, believing that they would be paid the sum agreed on with the commissioners. Upon bill alleging that complainants had been deprived of a jury trial of their appeal, and claiming that the trustee should be charged as trustee for them to the extent of $3,000:—</p> <p>Held, that the respondents were not parties to the agreement made with the commissioners, and were not bound to repair the omission of the latter. No act of the respondents in relation to the award (which was satisfactory to them) deceived the complainants, and .the respondents were entitled to the award as made.</p> <p>Held, further, that any equitable claim of the complainants to the fund depended upon their rights in the land taken, and not on the ground of an agreement to which the other parties were not privy.</p> <p>Held, further, that the bill nowhere alleged that complainants had any estate in the land except as cotenants with the other heirs of the remainder in fee.</p> <p>Held, further, that the bill was fatally defective in not stating any original right which the decree infringed, and hence it was immaterial by what means complainants were prevented from asserting their claim.</p> <p>(2) Attorney and Client.</p> <p>Held, further, that respondents had a right to suppose that complainants’ counsel had full authority to sign the consent decree so long as complainants held him out as their solicitor.</p>

<p>(1) Animals. Negligence.</p> <p>Whether a domestic animal is or is not rightfully in the place where it inflicts the injury complained of is determinative as to the necessity of proof of knowledge, on the part of the owner, of a vicious .propensity of the animal.</p> <p>(2) . Animals. Negligence.</p> <p>Plaintiff was riding along tlie street, in a buggy, when a servant of defendant, in charge of two horses, riding one and leading the other by a halter, was proceeding in the same -direction, near the middle of the street. When plaintiff drove alongside, the led horse wheeled and kicked the buggy, throwing plaintiff out and injuring him. There was no evidence that the horse had ever shown any vicious propensity before:—</p> <p>Held, that the horse was rightfully in the street, and in the absence of any evidence showing negligence in the management of the horse, the defendant was not liable.</p>

<p>(1) Statutes. Wills.</p> <p>Gen. Laws cap. 203, § 22, provides that when a testator omits to provide in his will for any of his children, or the issue of a deceased child, they shall take the same share of his estate that they would have been entitled to if he had died intestate, unless it appears that the omission was intentional. Gen. Laws cap. 203, § 45, provides that the chapter shall not extend to any will made prior to February 1, 1896, except as to provisions thereof which contain substantially the same provisions of any statute existing at the time of the execution of such will and applicable thereto; but the law in force at the time of the execution of such will, executed prior to said date, shall govern:—</p> <p>Held, that, under Gen. Laws cap. 203, § 45, a will dated February 23, 1895, was not governed by Gen. Laws cap. 203, § 22, but that the provisions of Pub. Stat. cap. 182, § 1, applied.</p>

<p>(1) Corporations. Bonds. Deceit. Liability of Officers of Corporation</p> <p> for False Representations. </p> <p>Eor a false statement on a corporate bond issued to the public, an officer of the corporation responsible therefor is liable in deceit as for personal representations.</p> <p>(2) Corporations. Bonds. Deceit. Liability of Officers of Corporation for False Representations.</p> <p>An officer of a corporation may be held liable for representations in which he has participated, even though the company is nominally the contracting party.</p> <p>(3) Corporations. Bonds. Deceit. Liability of Officers of Corporation for False Representations.</p> <p>In an action of deceit arising out of false representations, it is not necessary that the defendant should be personally connected with the particular transaction, if he is the active agent of the fraud which results in the transaction.</p> <p>(4) Bonds. Deceit. Security.</p> <p>Negotiable bonds contained this recital: “This bond is secured by all the property and assets of this company:”—</p> <p>Held, that “secured” referred not to “security” generally, but meant that the bonds were made secure by some lien, on all the property of the company, peculiar to them.</p> <p>Held, further, that the statement was positive and intended to be relied upon by purchasers; and the latter were not bound to make further inquiry as to the nature of the security.</p>

<p>(1) Case. Trover. Deeds. Equitable Mortgages.</p> <p>A. made a deed of land to B., as security for B.’s endorsement of A.’s note, and took from B. a written agreement, providing “that if said note is paid, then I agree to retransfer said land on demand.” After the death of A., C., the wife of A., paid the indebtedness to B. and requested a return of the deed, but B. stated that he could not find it. B. deceased, and D., administrator of B., found the deed and had it recorded. C. thereupon brought trespass on the case against D., basing the action in the first count upon the wrongful act of D. in recording the deed, and in the second count for the conversion of the deed. After verdict for C.:—</p> <p>Held, that, owing to the nature of the defeasance clause, after payment of the indebtedness, whether before or after condition broken, a reconveyance was necesssary under the contract.</p> <p>Held, further, that the recording of the deed not only did not affect such right, but was almost a necessary step to show to what the reconveyance related.</p> <p>Held, further, that the recording of the deed was neither a wrongful act nor a conversion of the deed.</p> <p>Semble, that plaintiff’s remedy would be in an action on the covenant for refusal to retransfer after demand, and not in tort.</p>

<p>(1) Equity. Powers. Deeds. Dife Estate and Reversion. Cloud on Title.</p> <p>A. conveyed certain, land to B., for life, with power to mortgage or sell, if necessary, for her maintenance and support. B. conveyed the same to her son 0., without consideration. 0. conveyed to D., in trust, to pay the income to B. for her life, and after her death to reconvey to C., in fee. Subsequently D. bought of E., the husband of A.J his life estate in the land for S500, and procured the purchase money by a mortgage of said land, jointly with B., to E. Subsequently D., individually and as trustee, B., and C. gave a deed of a portion of the land to G., and G. gave a mortgage thereof to H. Thereafter the mortgage to F. was cancelled. B. died intestate, and D. died leaving a will appointing his wife, I., executrix, and giving the residue of his estate to her, and leaving one child, J. Complainant, a minor son and sole heir of A., deceased, brought this bill, charging that the deeds from B. to C., from C. to D., from D., B., and C. to G., and the mortgage of G. to H. were void, and were clouds on his title; alleging that the attempted execution of the power by B. was void, because her necessities did not require it and because without consideration; and that I. and J. might be decreed to hold the portion of the land not conveyed to G., and also the life estate of E., as trustees for complainant. On demurrer:—</p> <p>Held, that, while equity does not entertain a suit for removing a cloud upon title in favor of a party out of possession, claiming under a legal title against a party in possession under the deed supposed to constitute the cloud, in the present case E., the father of complainant, had an estate by courtesy still outstanding, giving complainant no present right of possession, and leaving no relief at law and hence equity had jurisdiction.</p> <p>Held, further, that, in so far as the bill sought to hold I. and J. as trustees of the life estate of E. for the benefit of complainant, the bill was defective for repugnancy and for seeking contradictory relief, since complainant held the reversion unaffected by any unlawful acts of the life tenant, and without the power to adopt any of the unlawful conveyances as his own. Having no interest in the life estate of E., complainant could not complain of any conveyances which were made of that estate.</p>

<p>(1) Covenant. Contradicting Written Instrument. Pleading.</p> <p>Declaration set out a written agreement, under seal, binding defendant to . furnish plaintiff “such samples as said party of the first part (defendant) shall deem necessary and proper;” and alleged that by a verbal agreement made previously to the written one, the defendant became bound to fur- ' nish enough samples for trips of six weeks each. On demurrer:—</p> <p>Held, that the quantity as well, as the quality of the samples to be furnished was left to the judgment of defendant.</p> <p>Held, further, that the allegation of the verbal agreement contradicted the written instrument.</p> <p>Held, further, that the breach alleged was that of the inadmissible verbal agreement, not of the covenant set forth in the declaration.</p>

<p>(1) Trover. Landlord and Tenant. Larceny^</p> <p>A tenant in possession, who removed carpets attached to the floor and let with the house, is not guilty of larceny, as the goods were not taken from the actual or constructive possession of the owner.</p>

<p>(1) Negligence. Assumed Risk. Gates. Duty to Party Invited on Premises.</p> <p>Defendant was owner of land, upon which it maintained a railway connecting with the tracks of the X. R. R. Co. The spur track was provided with gates, placed across it at the boundary of defendant’s enclosure. Plaintiff’s intestate was a brakeman in the service of the X. R. R. Co., and was riding upon the foot-board of a locomotive engaged in drawing cars from defendant’s premises to the main track, by invitation of defendant. As the locomotive was backing out of defendant’s enclosure one of the gates swung against intestate, throwing him under the locomotive and killing him:—</p> <p>Held, that the gate was not different from ordinary structures of like character, and its characteristics were obvious.</p> <p>Held, further, that, had deceased been a servant of defendant he would have been held to have assumed the risk, and defendant owed no greater duty to one invited upon the premises than to its own employee.</p> <p>Held, further, that it is the duty of one using a gate for lawful passage, to open and close it himself and to see that it is kept open while passing through, if necessary.</p>

<p>(1) Beneficial Associations. Dues. Contracts. Forfeiture. Expulsion.</p> <p>Defendant was a member of an incorporated beneficial association. Dues L and assessments were payable in advance. Under the by-laws, those in default ceased to be members. The beneficiary was to receive from the society, in case of a death, as many dollars as there were members. The payment was postponed thirty days, and the members had the same time in which to make their payments; but they were in default at the time originally fixed for payment, and not entitled to benefits or the mutual aid fund during the period of grace. After defendant had been removed from the rolls of the society for non-payment of dues plaintiff brought suit to recover such dues:—</p> <p>Held, that, where a penalty was provided for a default, it was a waiver of other remedies for the same default.</p> <p>Held, further, that under the by-laws the assessments were not debts recoverable at law.*</p>

<p>Assumpsit for rent.</p>

<p>(1) Malicious Prosecution.</p> <p>Charter of the city of Pawtucket, clause 2, of section 3, is as follows: “The mayor shall have power to discontinue all actions brought against any person on behalf of the city for any violation of a city ordinance, and to</p> <p>. order the discharge of the person complained against, either before or after conviction, whenever, in his judgment, the good of the city requires it:”—</p> <p>Held, that such a termination of the proceedings furnishes no evidence of the innocence of the accused in an action of malicious prosecution brought by him against the original complainant.</p>

<p>(1) Taxation. New Trial. .Issues to Jury.</p> <p>In an action of assumpsit to recover taxes paid under protest as having-been illegally assessed, all questions of fact involving the validity of the tax assessments complained of, raised by the pleadings, were properly in issue and should have been submitted to the jury for their determination under suitable instructions, and it was error to restrict the issue to the mere question of excessive taxation.</p>

<p>(1) Conversion. Insurance Policy. Measure of Damages.</p> <p>In an action of trover for the conversion of a matured policy of insurance, where the form of the policy made it payable to any person who had incurred expense on behalf of the insured, which defendant claimed to have done, the measure of damages is prima facie the face of the policy.</p>

<p>Trespass on the Case for negligence, • on facts stated in opinion.</p>

<p>(1) Equity. Reformation of Deed. Trusts.</p> <p>Bill in equity set out that certain property was sold, under a mortgage' given by complainant and her husband, to the husband, when she supposed that the deed would be to herself and her husband jointly, and sought to reform the deed:—</p> <p>I-Ield, that the bill failed to show a ease of mutual mistake, but on the contrary expressly charged that the husband willfully caused the deed to be made to himself.</p> <p>Held, further, that the bill could not be sustained as one to reform the deed, but, in so far as it set forth facts charging the husband, a cotenant and purchaser at a sale caused by his own default, as a trustee under the deed, it would, to this extent, be sustained.</p>

<p>Trespass on the Case, on facts fully stated in opinion.</p>

<p>(1) Surety for Costs.</p> <p>In this State the provisioii for surety for costs has been regarded as discretionary as to resident plaintiffs, and where the poverty of the plaintiff, his inability to furnish surety, and probable cause of action, are shown, the action should not be dismissed.</p>

<p>Petition for an opinion.</p>

<p>Probate Appeal, on facts set forth in opinion.</p>

<p>(1) Master and Servant. Duty to Provide Safeguards. Statutory Duty.</p> <p>Gen. Laws cap. 68, § 6, imposes the duty upon corporations to provide “all belting and gearing” with proper safeguard:—</p> <p>Held, that a declaration that alleged the duty to provide the shafting and pulleys with proper safeguard, failed to state a cause of action.</p> <p>(2) Master and Servant. Assumed Risks.</p> <p>Semble, that a declaration properly setting forth that a belt in a manufactory was not properly guarded, whereby plaintiff’s hair was drawn into the pulley and shafting, would state a case.</p> <p>Semble, that it would not follow from the fact that the shafting and pulleys were in close proximity to the machine on which plaintiff was working, and over her head, that she appreciated the danger and assumed the risk. It is not sufficient to be aware of the defects unless the servant appreciates, or should appreciate, the risks resulting from such defects.</p>

<p>(1) Highways. Duty of City to Keep in Repair. Bicycles. Vehicles.</p> <p>Gen. Laws cap. 72, § 1, and cap. 36, § 15, imposing upon towns the duty to keep highways in repair “so that the same may be safe and convenient for travelers with their teams, carts, and carriages,” refers only to ordinary carts and carriages as these terms have long been understood, and not to bicycles.</p> <p>(2) Bicycles. Rights on Highways.</p> <p>A bicycle rider may recover, as any other traveler can, for a breach of statutory duty whereby he is injured; but he cannot recover for a defect which would not have caused injury to an'ordinary traveler.</p>

<p>Trespass de bonis asportatis.</p>

<p>Application for writ of mandamus.</p>

<p>(1) Taxation. Petition for Relief. Return of Ratable Estate. Officer Authorized to Malee Return.</p> <p>By-laws of a corporation defined the duties of the president as follows: “It shall be the duty of the president to ... at all times exorcise such general direction and supervision of the business of the company as its interests and security may require.” “In all cases where the duties of the subordinate officers and agents of the company are not specifically prescribed by the by-laws or by vote of the directors, such officers and agents shall obey the orders and instructions of the president.” The president of the company presented to the assessors of taxes an account of the taxable property held by it, and made oath to it before one of them:—</p> <p>Held, that the president was the appropriate instrument of the company to make the return.</p>

<p>(1) Negligence. Assumed Risk. Duty.</p> <p>Declaration alleged as ground of negligence that on the top of the ledge where plaintiff was working there was a loose stone liable to fall, and which did fall upon him, and charged defendant with knowledge, but alleged that plaintiff did not and could not know that the stone was loose and. liable to fall. On demurrer:—</p> <p>Held, that the facts stated did not show an obvious risk.</p> <p>Held, further, that the facts showed a prima facie duty from the defendant to warn the plaintiff.</p> <p>Held, further., that, the declaration stating a prima facie case, the ques-ion of negligence was for the jury.</p>

<p>(1) Ante-Nuptial Agreement. Husband and Wife. Injunctions.</p> <p>Plaintiff’s intestate and defendant (widow of intestate) in contemplation of their approaching marriage, executed an agreement under their hands and seals, and duly acknowledged, by which they agreed that each should have and enjoy the sepax-ate use and disposal of their separate pi’operty during their lives, and in case of the death of either the survivor would not claim either dower or courtesy, or any intei’es't or right in the property of the decedent, but that the same should go to the devisees by will or descend to the heirs of the decedent. On petition of defendant for assignment of dower and allowance from the personal estate of intestate, alleging fraud on part of intestate whereby she was induced to sign the agreement, of the contents of which she was ignorant, and failure on part of intestate to perform the agreement:—</p> <p>Held, that, the facts not supporting defendant’s contention, and there being nothing inequitable or improvident in the arrangement, defendant would be enjoined from prosecuting her petition.</p>

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

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

<p>(1) Officers. Executions.</p> <p>An officer who is a party to the action is disqualified from serving the execution therein.</p>

<p>(1) Parties. Presumptions. Estoppel.</p> <p>The question involved in an action at law is the right of the plaintiff at the time of bringing the action, and there is no presumption that the character of the party plaintiff in a suit remains the same during the pendency of the suit. 1</p>

<p>(1) Criminal Complaint. Locus of Offence.</p> <p>A criminal complaint alleging nonsupport of minor children, by a defendant, who, during the time covered by the complaint was in Warwick, in Kent county, while the children were in Westerly, in Washington county, is properly brought in Westerly.</p> <p>(2) Evidence.</p> <p>In a criminal complaint for nonsupport, evidence as to the physical condition of defendant is not material where it appears that defendant had employment and did not claim to be in receipt of a lesser income on account of his condition.</p>

<p>(1) Varying Contract by Parol. Evidence.</p> <p>Where a written contract contained no provision as to the time when the . amount agreed upon for doing of the work should be paid, evidence tending to show that subsequent to the date the contract was entered into it was agreed that the amount to become due should be paid in two installments? is admissible, since such evidence is not inconsistent with the written contract and does not tend to contradict it, and because it relates to a supplemental agreement and hence is not obnoxious to the rule that parol contemporaneous evidence is inadmissible to contradict or vary written instruments.</p> <p>(2) Contracts. Modifying Written Contract by Subsequent Parol Agreement.</p> <p>Where a written contract is not within the statute of frauds, it may be modified by a subsequent oral agreement.</p>

<p>(1) Wills. Dower.. Election.</p> <p>Testamentary devise as follows: “I devise to my wife, A., and to my children, B. and C., all the real estate, wherever situated, of which I shall die seized and possessed. To have and to hold the same to the said A., B., and C., their heirs and assigns forever, share and share alike:"'—</p> <p>Held, that, as it clearly appeared from the language used by testator that the devise was to be in lieu of dower, the widow must elect between the two.</p>

<p>(1) Declarations. Pleading. Negligence. Proximate Cause. Concurring Causes.</p> <p>Declaration alleged that plaintiff, a passenger on one of defendant’s oars, was obliged to stand in the aisle of said car; that defendant negligently-permitted said car to come to a sudden stop so that one of the passengers who was also obliged to stand was necessarily, by reason of said negligence, thrown against plaintiff with great force, to her injury, etc. On demurrer:—</p> <p>Held, that the declaration sufficiently alleged the proximate cause as the stopping of the car, resulting in the propulsion of a fellow passenger violently against her, to her injury.</p> <p>Held, further, that it was not necessary to set out the proximate cause of the stopping of the car more fully than was done.</p> <p>Held, further, that the question of concurring causes was for the jury, unless it clearly appeared from the declaration that the proximate cause was the plaintiff’s carelessness.</p>

<p>Bill in Equity, on facts stated in opinion.</p>

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

<p>(1) Inadequacy of Damages. New Trial.</p> <p>While- the damages in a case of personal injury are incapable of exact measurement by any commercial standard or rule, and must be left to the fair and unbiased judgment of the jury, which the court will hesitate to review, yet where it appears that the jury either wholly misconceived their duty or willfully disregarded the same, a new trial, on the ground of inadequacy of damages, will be granted.</p> <p>(2) New Trial. Verdict Against Evidence.</p> <p>On the petition of a party plaintiff for a new trial, on the ground of inadequacy of damages, the question of the verdict being against the evidence is not before the court.</p>

<p>(1) Equity. Corporations. Stockholders’ Liability. Liability of Director. Statutory Relief.</p> <p>Equity cannot entertain jurisdiction over the director of a corporation by virtue of section 15, chapter 180, of the General Laws. The right to hold the director, personally, for the debts of the corporation is purely statutory, and the mode of relief is limited to an action of the case under section 21 of said chapter.</p> <p>(2) Corporations. Stockholders’ Liability. Equity Pleading. Joinder.</p> <p>Semble, that a claim against a defendant, as an officer or stockholder of a corporation, under sections 1, 2, 3, chapter 180, of the General Laws, cannot be joined with a claim upon defendant as a director, under section 15 of said chapter, in one bill, as the foundation of the two causes of action is different one from the other, and the remedies over of the defendant are against different persons, under sections 23 and 24.</p>

<p>(1) Shell Fish Commissioners. Appeal. Judgments.</p> <p>The decision of the Common Pleas Division under Pub. Laws cap. 853, §§ 15, 17, upon appeal from the shell-fish commissioners taken to said division, is final and conclusive. A petition for new trial after such decision cannot be entertained.</p>

<p>Debt on Judgment.</p>

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

<p>Bill in Equity to set aside contracts and conveyances between trustee and cestui.</p>

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

<p>(1) Pleading. Abatement.</p> <p>A plea denying that the action was authorized by the plaintiff is in abatement, and is waived by the filing of pleas in bar which do not refer to it or save the benefit of it.</p> <p>(2) Pleading. Nonsuit. Procedure.</p> <p>Where a nonsuit was granted against one of parties defendant at a former jury trial, which was subsequently sustained on appeal, defendant should ask for judgment in his favor upon such decision, and individual pleas filed by him at a second jury trial are properly stricken out.</p> <p>(3) Pleading. Special Pleas. General Issue.</p> <p>In an action of trespass and ejectment a plea averring that the assignment of the lease was not made to defendant at the time of the alleged breach is properly stricken out, as the fact is admissible under the general issue.</p> <p>(4) Pleading. Pleas. Demurrer.</p> <p>In an action of trespass and ejectment a plea setting up that the covenant relied upon was a personal covenant with the original lessees and did not run with the land is properly stricken out, as this depends upon the construction of the lease and should have been offered as ground of demurrer.</p> <p>(5) Pleading. Breach. Demurrer.</p> <p>A plea averring that the breach of covenant assigned in an action of trespass and ejectment is not a continuing breach is properly stricken out, as this is matter of construction and should be claimed by demurrer.</p> <p>(6) Pleading. Special Pleas. General Issue.</p> <p>A special plea in an action of trespass and ejectment averring that plaintiff has never recognized the assignment of the lease to defendant is properly stricken out, as this can be shown under the general issue.</p> <p>(7) Pleading. Special Pleas.</p> <p>In an action of trespass and ejectment a plea alleging that plaintiff accepted rent of defendant accruing since the alleged forfeiture, and so continued after the bringing of the suit, whereby he waived the breach, is, when pleaded in proper form, suitable as a special defence.</p> <p>(8) Pleading. General Issue.</p> <p>In an action of trespass and ejectment, to a count alleging a monthly letting, a plea averring that defendant is a tenant from year to year amounts to the general issue.</p> <p>(9) Evidence. Written Agreement.</p> <p>In an action of trespass and ejectment based upon a lease and acceptance by defendant of an assignment of it, the agreement being wholly in writing, was for the court to declare; and evidence calling for an expression of opinion from a witness as to the contract between the parties was properly excluded.</p> <p>(10) Trespass and Ejectment. Forfeiture. Landlord and Tenant. Acceptance of Rent. Bond on Claim of Jury Trial.</p> <p>Where a bond has been given under the statute upon claim of jury trial by defendant in an action of trespass and ejectment, the acceptance of rent thereafter by plaintiff is not a recognition of the continuance of the tenancy so as to work a discontinuance of the suit.</p> <p>(11) Leases. Landlord and Tenant. Assignment. Forfeiture. Covenants Running with Land.</p> <p>A lease from X. to Y. contained the covenant, that “the said lessee will not sell liquor upon the premises except in the due course of his business as druggist.” Y. assigned the lease to Z. Z. sublet a portion of the premises to S. for a liquor saloon:—</p> <p>Held, that the covenant ran with the land and bound Z.</p> <p>Held, further, that while the lease imposed the condition that the lessee should not sell-liquor, it did not require him to see that no liquor was sold on the premises by a sub-tenant.</p> <p>Held, further, that the fact that liquor was sold by a sub-tenant of the lessee did not work a forfeiture of the lease as against the lessee.</p>

<p>(1) Negligence. Proximate Cause. Notice.</p> <p>Declaration alleged that defendant maintained around her land, bordering upon a highway, a close board fence, and in the fence a gate of the same appearance as the rest of the fence, so as not to be apparent to one passing along the sidewalk; that the gate was so constructed as to open outwards into the street, so that it was a source of danger when thrown open over and upon said sidewalk; and alleged that it was the duty of defendant to give due warning to travelers using the sidewalk, and to provide some means of notice of the existence of the gate and of the opening thereof. The declaration further alleged that plaintiff, passing along the sidewalk, was severely injured by being struck by the gate, which was suddenly opened against her, and that the injuries were caused by the negligence of defendant in failing to give the notice aforesaid. On demurrer:—</p> <p>Held, that the violent opening of the gate, and not the neglect to notify of the capacity to be opened, was the proximate cause of the injury.</p> <p>Held, further, that, as the construction of the gate was not such as to render it inevitably dangerous in itself, no duty devolved upon defendant to give notice of the capacity of the gate to be opened until it was intended to use such 'capacity, and then the duty was to give notice of the intended movement.</p> <p>Held, further, that the declaration stated no case.</p>

<p>(1) Defaulted Gases. Assessment of Damages. Trial by Jury.</p> <p>At common law, from the reign of Edw. Ill (1327), in defaulted cases, it was the practice of the court to award damages or to permit the jury to inquire concerning them, to enlighten the conscience of the court. This was not a matter of right, but of practice ; and the finding of the jury upon the writ of inquiry was not a verdict, but might be disregarded by the court.</p> <p>In Rhode Island, the act of the General Assembly, in 1647, creating the</p> <p>“ Generali Court of Tryall’s,” provided for the use of writs of inquiry in defaulted cases.</p> <p>Between the years 1671 and 1710 it was the practice of the court to submit the question of damages in defaulted cases to a jury, but by the year 1729 it was the universal practice in such cases for the court to assess damages.</p> <p>By the act of 1729, creating the Superior Court of Judicature, it was ex- ■ pressly given all the powers vested in the courts of law in England, thereby conferring the same jurisdiction conferred upon the “Generali Court of Tryall’s ” by the act of 1666. This same act created inferior courts of Common Pleas. In the latter courts it was the practice from the beginning that damages, even in tort cases, should be assessed by the court.</p> <p>Digest 1767 (p. 59), “ an act regulating sundry proceedings in the several courts in this colony,” providing “ that in all cases, both at the Inferior and Superior Courts, where judgment shall pass by default . . . where damages are to be inquired into, damages shall he inquired into and assessed by the Court or otherwise by a writ of enquiry at the discretion of the Court,” conferring this special authority seems to have been a recognition of the common law of the colony.</p> <p>This act was substantially re-enacted in the revision of 1798 (p. 166); in the revision of 1822 (p. 126); in the revision of 1844 (p. 129) ; in the revision of 1857, cap. 186, sec. 7 ; in the revision of 1872, cap. 202, sec. 7 ; in the revision of 1882,'cap. 213, sec. 8 ; in the judiciary act'of 1893, cap. 23, sec. 5; and in the revision of 1896, cap. 243, sec. 5, providing that “ In all cases except where otherwise provided, if judgment be rendered on default . . . damages shall be assessed by the court with or without the intervention of a jury, in the discretion of the court.”</p> <p>Held, that, while the statute does not prohibit the court from calling to its aid a jury in such case, it does provide that the damages when assessed shall be assessed by the act of the court, which may award more or less than the jury awarded.</p>

<p>(1) Wills. Legacies. Lapsed Legacies. Corporations. Consolidation. Cy Pres Doctrine.</p> <p>Testatrix, by her will, left a fund to “Saint Ann’s Church for Deaf Mutes, in the city of New York.” Testatrix had been a member, at one time, of this church, and was greatly interested in its work. Prior to decease of testatrix the legatee, under a statute of the State of New York, providing that upon the petition of two incorporated churches the court may make an order for the consolidation of the corporations, specifying the name of such new corporation, and when such an order is made the persons constituting such corporations shall become an incorporated church, became consolidated with Saint Matthew’s Church, the consolidated corporation taking the name of Saint Matthew’s Church and carrying on the work formerly carried on by Saint Ann’s Church:—</p> <p>Held, that the original legatee named in the will ceased to exist upon the formation of the new corporation.</p> <p>Upon the question whether the court could make a cy pres application of the gift:—</p> <p>Held, that there was a distinction between the case where the gift was for a particular purpose only and there was no general charitable intention and where it was to charity generally, and pointing out the mode of carrying it into effect. In the latter case, if the mode fails, the court can say that the general purpose of charity shall be carried out.</p> <p>Held further, that in the case at bar the will did not disclose any general charitable intent, it being impossible to determine from the language whether the work or the institution was the more prominent object, and that hence the legacy lapsed.</p>

<p>(1) Judgments Estoppel. Pleading.</p> <p>As applied to the same demand, a judgment in a former action between the parties is an estoppel not only as to every ground of defence actually presented in the action, but also as to every ground which might have been presented; but where the second action is upon a different claim the prior judgment operates as an estoppel only as to those matters in issue or points controverted, upon the determination of which the verdict was rendered.</p> <p>(2) Pleading. Duplicity.</p> <p>A replication raising both an issue of law and an issue of fact is bad for duplicity.</p>

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

<p>(1) Common Carriers. Negligence. Nuisance.</p> <p>Where an obstruction was viciously placed upon the tracks of an electric railway, for the purpose of interfering with the passing of the cars, the company may rightfully remove the same from the tracks, and is not obliged either to remove the obstruction out of the highway or to give warning of its presence in the highway, and owes no duty to one who, .subsequently using the highway, without knowledge of the obstruction, is injured thereby. The company does not create the nuisance in question, but simply removes it, which it has the right to do.</p>

<p>(1) Mortgages. Accounting. Redemption. Interest.</p> <p>Upon a bill for an accounting between a mortgagor and second mortgagee, the report of the master showed that he had treated moneys paid by mortgagee on account of interest and principal of mortgages held by bank as further advances by mortgagee to mortgagor, and had allowed interest on each of said payments to time of next annual rest; that at such time he had charged mortgagee with the rental for the year before, and credited him with all sums paid during the year for repairs, etc. Interest was allowed upon the new balance until the next rest period.</p> <p>On exceptions:—</p> <p>Heldi no error.</p> <p>(2) Waste. Mortgages. Accounting. Redemption.</p> <p>A. advanced certain moneys to B. and took from B. a deed of the real estate, absolute in form, and executed an agreement that he held the estate in trust and would reconvey the same to B. at any time upon repayment of the sums advanced. At the same time A. assumed payment of the mortgage held by C. upon the -rtate. B. continued to live in the premises for a time, but subsequer Jy notified A. that he had removed; whereupon A. took possession of the property and managed the same and collected the rents and profits. At such time the exterior of the buildings and fences was out of repair, and their condition became worse during the time that A. continued in possession, due to the natural wear- and tear. The estate was not permanently injured, but it appeared could be put in good condition by certain repairs:—</p> <p>Held, that the question whether waste has been committed in a given case is to be determined in view of the particular facts and circumstances appearing in the case.</p> <p>Held, further, that, under the facts of the case at bar, A. had not been guilty either of voluntary or permissive waste, there being no evidence of such gross negligence as would be necessary to charge him with the latter.</p> <p>Held, further, that, had the necessary repairs been made by A., he would- . have been entitled'to charge the expense thereof to B.; and as they were f not made, B. in effect recovered from A. that amount, making him whole.</p> <p>(3) Accounting. Redemption. Mortgages. Rent.</p> <p>A mortgagee in possession, in accounting with the mortgagor on redemption, should be charged with the amount of rent actually received, or which he might have received with the exercise of reasonable care and diligence.</p> <p>(4) Mortgages. Junior Encumbrancer. Interest. Compound Interest.</p> <p>In an accounting between a junior encumbrancer and the mortgagor, the former is not entitled to compound interest upon sums paid by him on account of interest and principal of the prior encumbrance, but is entitled only to be credited with the sums so paid, together with interest thereon at the legal rate.</p> <p>(5) Mortgages. Accounting. Compensation.</p> <p>A mortgagee in possession cannot, in the absence of some special agreement, recover compensation for his labor in caring for the mortgaged estate.</p> <p>Following Allen v. Robbins, 7 R. I. 33.</p>