Volume 26 — Rhode Island Reports

<p>(1) Malicious Prosecution. Probable Cause.</p> <p>In an action for malicious prosecution, while a want of probable cáuse may be shown prima facie by the discharge of the defendant by the examining magistrate where the authority of the magistrate is limited to binding over the defendant, this is not so where the original case was within the jurisdiction of the magistrate, and in such case the discharge of the defendant does not raise the presumption of want of probable cause.</p>

<p>(1) Contributory Negligence. Master and Servant. Defective Machinery.</p> <p>A servant who is injured in the operation of a machine, by reason of having his fingers caught between the rolls while feeding material into the machine, on account of the failure of the appliance intended to stop the machine to work, is guilty of contributory negligence, although he may have had no knowledge of the fact that the appliance could not stop the machine, where he also had no reason to believe that the appliance could stop the machine.</p> <p>A servant is bound by such knowledge as he ought to have as well as by what he actually has.</p>

<p>(1) Poor Debtor’s Oath. ■ Malicious Injury to Poison.</p> <p>Gen. Laws cap. 260, § 1, provides that “any person who shall be imprisoned for debt . . . may request to be admitted to take the poor debtor’s oath.”</p> <p>Section 10 provides that “no person who shall be committed on execution in any action for any malicious injury to the person, health, or reputation of the plaintiff in such suit . . . shall be admitted to take the oath as aforesaid.”</p> <p>A defendant committed under execution in an action of trespass on the case for the wrongful and malicious alienation of the affection of the wife of plaintiff applied to a justice of a District Court to be admitted to take the poor debtor’s oath:—</p> <p>Held, that the word “person” was used in the broad sense of the term, and was not limited to injury of a physical character.</p> <p>Held, further, that alienation of the affections of a wife was a malicious injury to the person of a plaintiff within section 10, so as to exclude an execution defendant from the privilege of the oath under section raw.</p> <p>(2) Writ of Prohibition.</p> <p>Held, further, that, as the justice of a District Court had no jurisdiction to pass upon such an application, a writ of prohibition would lie.</p>

<p>(1) Bills and Notes. Endorsers. Parties.</p> <p>A promissory note was made by A-. to the order of B., endorsed by B. and by G. The note was secured by a pledge of stock belonging to B. It was discounted by defendant for the benefit of A. B. died, and plaintiff became his executrix. After protest of the note, defendant notified plaintiff that unless it was paid the stock would be sold. Thereupon plaintiff paid the note, the defendant erased the name of O. from the back and delivered it, so altered, to plaintiff. After judgment against A., wherein execution was unsatisfied, plaintiff sued C. and was nonsuited. Plaintiff then brought an action of the case against defendant to recover for mutilation of the note, claiming that the name of C. was written on the note before the name of B., and that O. as to B. became a joint maker with A.:—</p> <p>Held, that, as B. and O. both signed the note before it was issued, it was immaterial, as between them, which signed first.</p> <p>Held, further, that, when the defendant discounted the note, as to it the parties were liable according to the places which their names respectively occupied, and the defendant had the right to demand payment of either and thereby release the parties following the one held, which was all the erasure amounted to.</p> <p>Held, further, that the note never bound the parties as between themselves, and so the obliteration did not alter their relations.,,</p> <p>Held, further, that any agreement of C.. to become co-surety with B. for the payment of the note was as binding as ever, and-plaintiff had an action on such agreement against C.</p>

<p>(1) Pleading. Master and Servant. Negligence. Case. Trespass.</p> <p>An' action of case will lie against a master, for an assault committed by a servant, only when the action is for injuries resulting from negligence, and for the wrongful acts committed by the servant without the master’s orders, and for which he as principal is responsible.</p> <p>(2) Joinder of Counts. Case.. Trespass.</p> <p>A count in trespass can not be joined with an action of the case, under the practice in this State.</p>

<p>(1) Probate Law and Practice. Creditor of Estate. Bonds. Breach. Presentation of Claims against Estate of Decedent.</p> <p>Where the claim under a bond arises in the lifetime of the obligor the obligee is a “creditor” of his estate within the meaning of Gen. Laws cap. 215, § 2, and cap. 218, § 9, requiring the filing of claims against the estates of decedents and bringing suit thereon.</p>

<p>(1) Pleading. Debt.' Judgments. Alimony. Equity.</p> <p>• An action of debt can be maintained at law, upon the decree of a domestic court of chancery awarding alimony, in all cases where such decree directs the payment of a fixed and absolute debt in money.</p> <p>(2) Pleading. Debt. Judgments. Alimony.</p> <p>The action can be maintained, although the alimony adjudged is not a single sum, but an accruing allowance, to recover the alimony accrued at the time of bringing suit.</p>

<p>(1) New Trial. Questions of Fact. Buie on Conflicting Evidence.</p> <p>The rule which controls in petitions for new trials in this State is that where the evidence as to the existence of the facts in issue is conflicting and of such a character that fair-minded men might honestly differ as to the result thereof, the verdict of the jury is final, although the court or another jury might come to a different conclusion upon the same facts.</p>

<p>(1) Duty to Institute Criminal Proceeding Before Civil Action.</p> <p>In an action for money bad and received, the testimony tended to show that plaintiff was induced to endorse a check by reason of the statement by defendant that it had been made to plaintiff’s order by mistake. There was no testimony to show that this was not true. The bill of particulars stated the claim as one “ for cash obtained by false pretences and fraudulent representations.” Nonsuit was granted upon the ground that, as plaintiS claimed the endorsement had been procured in New York by false pretences, he could not maintain the action without first proceeding against the defendant in a criminal proceeding:—</p> <p>Held, error, as the record showed no ground for a criminal proceeding; and even if it were a crime, it was not committed in this State.</p>

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

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

<p>Assumpsit. Heard on agreed statement of facts.</p>

<p>(1) Wills. Revocation. Ademption.</p> <p>Under Gen. Laws cap. 203, §§ 16-18, making a will irrevocable except in the manner therein prescribed, the doctrine of ademption has no application.</p>

<p>(1) Equity Pleading. Dedication.</p> <p>An allegation in a bill in equity that the land in question was dedicated for highway purposes and since such time has been so used states a conclusion of law without setting out the facts upon which it is predicated.</p> <p>To constitute good pleading the bill should allege facts to show whether it was a common-law or statutory dedication, and an acceptance either by the public or by the town council respectively.</p>

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

<p>(1) Incense. Woodland. Evidence. Fires Caused by Locomotive. Damages.</p> <p>In an action for damage to woodland caused by fire set by defendant’s engines, evidence as to damage done to growing trees and to wood cut and lying on the ground is admissible, although plaintiff had by agreement in writing authorized a third party to cut and remove all the wood on said land since such agreement is but an executory and revocable license and conveys no interest in the land, and hence all wood not cut and removed within the time of the iicense belonged to plaintiff.</p> <p>(2) New Trial. Requests to Charge. Evidence. Presumptions. Fire Set by Locomotive.</p> <p>Although it was error for the court to charge that the fact that defendant’s servants aided in putting out a fire tended to support the fact that defendant’s locomotive caused such fire, a new trial will be denied upon this ground where the evidence showed no other apparent cause for the fire than sparks from defendant’s engine.</p>

<p>Bill in Equity for specific performance.</p>

<p>(1) Probate Law and Practice. Piling Claims against Estate. Estoppel.</p> <p>A creditor who files in the office of the cleric of a Probate Court a claim against an estate,- under Gen. Laws cap. 215, § 2, is bound by such claim, in any subsequent action against the estate, both as to the amount of and period covered by the claim, and also as to the nature of the claim.</p>

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

<p>(1) Probate Law and Practice. Guardians. Judgments.</p> <p>A petition to a Probate Court requested the appointment of a guardian upon the person and estate of a person of full age, on the ground that he was “incompetent of managing his estate.” The decree of the court recited that “he being a person of full age and incompetent of managing his estate . . . it is decreed that the request be granted and is appointed guardian of the person and estate.” The letter of guardianship also recited the same ground of appointment,—</p> <p>Held, that the petition stated no case within the provisions of Pub. Stat. cap. 168, § 7, and as the decree was based upon the ground set out in the petition, it followed that all that the court found were the facts alleged as such ground, and as this was not sufficient to warrant the appointment of a guardian, the decree was a nullity.</p> <p>Held, further, that, as the ground specified in the application and followed in the decree and letter of guardianship was not a statutory one, it appeared from the record that the court had no jurisdiction, and hence the judgment of the court was not within Pub. Stat. cap. 181, § 5, providing that “no decree of a probate court ... in any collateral proceeding when the same shall not have been appealed from, shall be deemed to be invalid, or be quashed for want of jurisdiction appearing on the face of the papers, if the court had jurisdiction of the subject-matter of such . . . decree.”</p>

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

<p>(1) Wills. Burial Lots. Residuary Devise.</p> <p>Testator, the owner of a burial lot, deceased, leaving a will in which his widow was his residuary legatee. The will made no mention of the lot. Upon the question whether it passed to the widow under the residuary clause or to his daughter, as heir-at-law:—</p> <p>Held, that a burial lot had been shorn of so many of the ordinary attributes of property as to raise the presumption that it was not intended to be passed under a general devise in which it was not specially mentioned.</p> <p>Held, further, that, following the doctrine of Derby v. Derby, 4 R. 1.414, and the implied approval of it in Gardner v. Swan Point, 20 R. I. 646, a burial lot does not pass under a general residuary devise but descends to the heirs as intestate property.</p>

<p>Appeal from Probate Court.</p>

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

<p>Petition for Mechanics’ Lien.</p>

<p>(1) Probate Law. Monuments. Rights of Administrator and Heirs at Law in Monument.</p> <p>A demurrer to a bill in equity, brought by heirs-at-law to restrain an administratrix from keeping certain names upon a monument erected by her under authority of the Probate Court over the grave of the deceased, alleging that respondent acted as administratrix and that complainants as heirs at law have no rights or equities or any title in and to the monument, will be overruled.</p>

<p>(1) Use and Occupation. Waters.</p> <p>After an adjudication of the rights of the parties in the pond, river, and dam, the court finding (Dyer v. Cranston Print Works, 22 R. I. 506) that the defendant was entitled to use the whole of the water as retained by the present dam until the plaintiffs were ready to make use of the privilege, and that thereafter each of the adverse claimants would become entitled to use one-half of the average flow of the stream, the plaintiffs brought assumpsit for use and occupation of the dam and land under the water of the pond, waters, water rights, and privileges on that portion which the court found they were entitled to:&emdash;•</p> <p>Held, that the use of the dam and land was not separate from the water rights appurtenant to the riparian estates. The water rights could not be used without maintaining the dam, and the only use of the dam and soil under the waters had been subservient to the use of the water.</p>

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

<p>Debt under statute.</p>

<p>Trespass on the Case for loss of services of wife.</p>

<p>(1) Insurance. Beneficiaries. Garnishment.</p> <p>A policy of insurance named X. as the beneficiary, but contained this provision: “The production by the company of this policy and of a receipt for the sum assured, signed by any person furnishing proof satisfactory to the company that he or she is an executor or administrator, husband or wife, or relative by blood or lawful beneficiary of the insured shall be conclusive evidence that such sum has been paid to and received by the person or persons lawfully entitled to the same, and that all claims and demands upon said company under this policy have been satisfied:”—</p> <p>Held, that this provision gave the company a choice between the several representatives of the assured, which of them it should pay, and no one of them had an attachable interest in the fund.</p> <p>(2) Probate Law. Executors and Administrators. Husband and Wife. Gar- • nishment. Insurance.</p> <p>While a husband has the right to administer upon the estate of his wife and to take to himself the surplus, under Gen. Laws cap. 212, § 9, a chose in action due the estate accrues to him as administrator and can not be trusteed as a debt due to him in his personal capacity.</p>

<p>(1) Pleading. Case and, Trespass. Master and Servant.</p> <p>A master can not be held liable for an assault committed by his servant without cause or provocation, and not within the scope of the servant’s employment or done with authority from the master. »</p>

<p>(1) Negligence. Elevators. Custom,.,</p> <p>Plaintiff was employed by parties decorating a building in process of erection by defendants as contractors. Defendants operated a temporary elevator through openings left in the floor. The employers of plaintiff used a staging which was moved about as needed. While plaintiff was at work on the staging, which had been so placed as to project into the elevator-well, the elevator hit the staging, injuring plaintiff. Plaintiff alleged ignorance that the staging projected into the well, but charged that defendants knew or by the exercise of due care could have known of it. Plaintiff further alleged that it was the custom, in. cases where persons were working near temporary elevators, to give notice .of the operation of the elevators, and charged defendants with such duty.</p> <p>Held, that an allegation of ignorance amounted to nothing where the danger was obvious, as in the case stated, and so must have been or should have been known to plaintiff.</p> <p>Held, further, that from that facts stated the duty of warning would rather have been upon the plaintiff’s side than upon the defendant’s, since the plaintiff was not employed by defendants and it was not alleged that defendants moved or knew of the moving of the staging.</p> <p>Held, further, th^t the allegation of the custom was too vague to enable the court to pass upon it.</p>

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

<p>Trespass qn the Case under statute.'</p>

<p>(1) Negligence, (jommon Carriers. Request tó Charge.-</p> <p>Plaintiff, a passenger on one of defendant’s trains, 'alleged that1 by instruction of defendant’s servant she alighted from the-car.on the side opposite the platform, and in so doing stuck her foot in a hole beneath the rail of an adjoining track and was injured. The court instructed the jury that this was 'the ground of negligence relied upon, an'd that unless plaintiff was injured1 in the manner stated the verdict must be for defendant: — L</p> <p>Held, no error.</p> <p>(2) Negligence. Common Carriers. Request.to Charge.</p> <p>An instruction that if the defendant kept -the space between the rails in the usual condition as at stations in general, provided such condition was a safe one, the verdict must be for the defendant, was proper, and it was not necessary to limit' the instruction to stations where the same conditions prevailed as at the station in question, since the • instruction stated a general proposition of law applicable to -all stations.</p>

<p>(1) Beneficial Associations. Beneficial. Funds. Rights of Personal Representatives and Beneficiaries.</p> <p>By-laws of defendant provided that upon the death of a member the amount insured should be paid, one-half to the widow or husband and one-half to the children; or if there were no children, the whole to the widow or husband; or if no widow or husband, to the next of kin. Deceased left no widow or children, or, so far as known, no next of kin:—</p> <p>Held, that, as the beneficiary fund did not go to the executrix as part of estate, she was not entitled to bring suit.</p> <p>Munroe -v. Providence Firemen’s Assn., 19 R. I. 363, explained.</p>

<p>Bill in Equity to enforce statutory liability of stockholder of a foreign corporation resident in this State, under foreign statute.</p>

<p>Decision in Desrosiers v. Bourn,. 26 R. I. 6, affirmed.</p>

<p>(1) Jurisdiction of District Courts and of the Common Pleas Division. Trespass and Ejectment.</p> <p>The effect of Gen. Laws cap. 228, § 23, and Gen. Laws cap. 223, § 4, defining the jurisdiction of District Courts and of the Common Pleas Division of the Supreme Court, is to give exclusive original jurisdiction to District Courts of actions brought to recover possession of tenements or estates let or held at will or by sufferance; concurrent original jurisdiction to both courts of other actions concerning real estate in which the damages are laid at three hundred dollars or less; and exclusive jurisdiction to the Corn-mom Pleas Division of all such actions in which the debt or damage is laid at ■ more than three hundred dollars. An action of trespass and'ejectment, therefore, against one in adverse possession may be brought in either court.-</p>

<p>(1) Alienation of Affections. Evidence. Damages.</p> <p>In an action for the alienation of the affection of a husband, defendant may • offer, in mitigation of damages, evidence tending to show that during the period in question the husband had maintained improper relations with other women than herself, and this whether the plaintiff had knowledge of such fact or not.</p>

Application, under Pub. Laws cap. 1101, for appointment of commission to appraise the property of school districts. Heard on objections to proceedings on constitutional question.

<p>Action of the Case under section 26 of chapter 48 of the General Laws. Heard on agreed statement of facts.</p>

<p>Probate Appeal.</p>

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

<p>(1) Negligence. New Trial.</p> <p>In an action for injuries sustained by plaintiff through alleged negligence of defendant, due to failure to provide safe appliances,.evidence considered, and held not to sustain verdict for plaintiff.</p> <p>(2) Negligence. Evidence.</p> <p>In an action for negligence in not providing safe appliances, it was error to permit a witness for plaintiff to testify about an appliance other than the one alleged to have been defective, for the purpose of showing the faulty construction of the latter.</p> <p>(3) Negligence. Evidence.</p> <p>In an action for negligence in not providing safe appliances, evidence of certain experiments made with similar appliances to show the effect of the acts alleged as negligence is admissible and the appliances are properly offered in evidence as exhibits. Permission to perform experiments in the presence of the jury is not a matter of right, but is within the discretion of the presiding judge.</p> <p>(4) Negligence. Safe Appliances. Charge to Jury.</p> <p>In an action for negligence in not providing safe appliances, a charge that defendant was not bound to furnish the safest or newest or any particular kind of appliance except such as are in common use by ordinarily prudent and careful men under like circumstances, and that if the jury found that at the time of the accident the appliance used was in use by ordinarily prudent and careful men under like circumstances it would not be negligence to put such appliance in use, is a coriect statement of the law.</p>

<p>(1) Negligence. Master and Servant. Pleading. Trespass and Case.</p> <p>Declaration alleged that while plaintiff, a minor, was standing on the sidewalk and looking in at an open window of defendant’s manufactory, annoying defendant’s servants, one of said servants committed a violent assault upon plaintiff by throwing a sharp piece of iron at her, thereby injuring her. On demurrer that the declaration sounded in trespass and not in case, as set out therein:— :</p> <p>Held, that the declaration did not show either that the assault was committed by authority from the master, or that it was within the scope of the servant’s employment.</p> <p>Held, further, that the only relation which the plaintiff occupied to the defendant, if any, was that of a trespasser.</p> <p>Held, further, that, as the servant was not in charge of defendant’s manufactory nor had any duty or authority in the premises, no legal duty owed the plaintiff from the defendant appeared.</p> <p>Held, further, that the declaration simply showed a willful trespass committed by the servant, for which he alone was liable.'</p> <p>Affirming Sekator v. Lannon, 26 R. I., 125.</p> <p>Distinguishing Mossessian v. Callender, 24 R. I. 168; Staples v. Schmid, 18 R. I. 224; and Bucci v. Waterman, 25 R. I. 125.</p>

<p>(1) Trespass and Ejectment. Pleading. Description of Property.</p> <p>In an action of trespass and ejectment, a description of the tenement in one count of the declaration may be adopted by reference into a second count.</p> <p>(2) Trespass and Ejectment. Pleading. Description of Property.</p> <p>Qucere, whether the use of the word “tenement” in an action of trespass and ejectment is sufficient to express the relation of landlord and tenant, so as to dispense with the necessity , of setting out plaintiff’s title.</p>

<p>(1) Storm Doors. Negligence. Judicial Notice.</p> <p>Declaration alleged that while plaintiff, a child of twelve years of age, was entering defendant’s store, she was injured by a storm door swinging back and striking her fingers with such force as to break the bones; and alleged as negligence that the door was dangerous in this, that it was a double storm door of great weight, to which were attached springs of great strength which forced the sides back with great force, and that while plaintiff was attempting to open one side, the other side, which had been opened by some other person, flew back and struck plaintiff.</p> <p>Held, that the court would take judicial notice that such doors were not dangerous appliances in their construction Held, further, that plaintiff was not in the exercise of ordinary care when injured.</p>

<p>(1) Negligence. Lunatics. Contributory Negligence.</p> <p>In an action for negligence against a common carrier, for causing the death of a person of unsound mind, contributory negligence can not be inferred from the mere fact that the insane person was at large.</p>

<p>(1) Trusts. Accounting.</p> <p>Where by the terms of a trust, the trustee is required to pay over the income “at such times and in such amounts as may according to the judgment and discretion of the trustee seem best,” although the trustee is not in the fullest sense accountable to the beneficiary, yet the latter has such an interest in the fund as to entitle him to an account of what it consists of and what income it is producing, and a bill for an accounting may be supported on such ground.</p>

<p>(1) Fraud. Equitable Defences.</p> <p>As fraud can be shown in an action at law by proper pleading, it is improper and unnecessary to plead it by an equitable defence.</p> <p>(2) Pleading. Demurrers.</p> <p>A decision on demurrer that a plea presents a sufficient defence is not an adjudication of the fact in favor of defendant. A decision on demurrer goes only to the sufficiency of the matter pleaded.</p> <p>(3) Fraud. Equitable Defencesi</p> <p>Where a replication set up fraud in procuring a release, a rejoinder by way of equitable defence, reciting evidence to rebut the inference of fraud is improper; since the tender of the issue of fraud is sufficient, and a plea should set up facts and not evidence of the facts.</p>

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

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

<p>(1) Electric Railways. Negligence. Contributory Negligence.</p> <p>A child eight years of age, who, with an unobstructed view of an approaching car, deliberately crossed in front of it, upon her judgment that she could cross before it reached her, is guilty of contributory negligence so as to bar recovery. An infant, whatever his age, is not in law excused from exercising some care in approaching known places of danger.</p>

<p>Petition for habeas corpus.</p>

<p>(1) Contracts. General and Particular Statements.</p> <p>An agreement in writing was entered into stipulating that defendant should build a spur track from the main line to plaintiffs land; that plaintiff should pay for its cost and should cover the roof and sides of the buildings which were or should bé erected on his premises with non-combustible material, and that he would assume all risk of damage to said buildings and the contents by fire communicated from locomotives of defendant by sparks or otherwise, and waived and released defendant from all claims that might arise for such damages:—</p> <p>Held, that the agreement covered fires ‘communicated by defendant’s locomotives on all tracks, and was not confined to those originating from the spur track. °</p> <p>Held, further, that the 'rule that a general statement following a particular statement must be construed to apply to the matters covered by the latter applied only where there was a preceding statement by which the subsequent provision might be qualified. In the case at bar the clause in relation to the spur track was a contract on defendant’s part standing by itself and importing no relation to the clause about fires, which was general.</p> <p>(2) 'Construction of Contract.</p> <p>Where a contract is clear in its terms, the construction of it is for the court.</p> <p>(3) Evidence. Contracts.</p> <p>Testimony tending to show that an agent of defendant made representations by reason of which plaintiff signed an agreement, but making no reference to any false or fraudulent representations; is properly rejected.</p>

<p>Bill of interpleader.</p>

<p>(1)' Pleading. Joinder of Parties.</p> <p>In an action on the casé for interference with a right of way, the administrator of the former owner of the land is improperly joined as party defendant with the present owner, as the latter is not responsible for the damages suffered by plaintiff before he owned the land, and the intestate is not responsible for damages caused by action of present owner unless he conveyed the land with covenants of warranty.</p> <p>(2) Probate Practice. Presenting Claim to Personal Representative.</p> <p>A claim against an intestate for interference with a right of way is one' that survives under the statute, but must be presented to the administrator bpfore suit.</p>

<p>(1) Criminal Pleading. Statutory Offences. Indictments.</p> <p>Where the language of an indictment for a statutory offence fully and explicitly sets out all of the essential elements of said offence, the indictment is not bad for not charging that the offence was feloniously done.'</p> <p>If the offence were a common-law felony and the statute did not provide what should constitute the offence nor prescribe the form of indictment, the term “feloniously” would be essential in order to comply with the strict rules of criminal pleading.</p>

<p>(1) Variance. New Trial.</p> <p>Although, plaintiff’s testimony disclosed a variance with the declaration, yet as the facts were undisputed, the declaration may be amended, and a new trial on this ground will be denied.</p>

<p>(1) Contracts for Testamentary Disposition. Specific Performance.</p> <p>Upon á bill in equity to enforce a contract for testamentary disposition, evidence considered and</p> <p>Held, not to establish a contract between the parties.</p>

<p>(1) Equity. Mistakes of Law and Fact. Bonds of Executors.</p> <p>A bill in equity brought by A., executor and residuary legatee of the will of B., alleged that he was given two blank forms of bonds, and, being ignorant as to the distinction between them, sought advice of the deputy probate clerk, and was advised to give a bond to pay debts and legacies, which he did, ignorant of the effect of such bond; that by an inventory which he caused to be made there appeared to be assets in excess of the amount required to pay debts and legacies, but that after more than one year from giving said bond he discovered that the assets were insufficient to pay legacies. The bill asked that prosecutions of suits and all proceedings to enforce the bond be enjoined and, that complainant be permitted to substitute therefor nunc pro tunc an executor’s bond in the usual form to return an inventory and account. Oh demurrer:—</p> <p>Held, that, under the provisions of the statutes, free choice was given the executor as to which form of bond.he would give, to each of which the law annexed certain obligations, which were not elements of an agreement between the parties, but provisions of general law.</p> <p>Held, further, that the bill set forth no mistake of law or fact entitling complainant to relief.</p> <p>Held, further, that the mistake, if any, was of complainant alone, and as the legatees,'through no fault of their own, could not be put in statu quo, com-, plainant was not entitled to relief.</p>

<p>(1) Deeds. Seals. Covenants. Assumpsit.</p> <p>Gen. Laws cap. 202, § 4, dispensing with the necessity of seals upon deeds, did not abolish deeds or change the rules of common-law pleading, with respect to them; hence an action of assumpsit, brought to recover damages for breach of covenants of a lease under seal, will not lie.</p>

<p>(1) Negligence. Evidence.</p> <p>In an action for negligence, by reason of the slipping of a trolley pole on one of defendant’s cars, whereby an electric globe in close proximity to the tolley wire was broken and in falling injured plaintiff, who was waiting for a car to pass such point, evidence offered by plaintiff tending to show that other globes at this as well as at other points upon defendant’s line had previously been broken in a similar way is admissible as showing defendant’s knowledge of the danger.</p>

<p>Appeal from decree of Probate Court. Pleard on petition of appellant for new trial after jury trial.</p>

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

<p>Indictment for murder.</p>

<p>(1) Deeds. Notice. Cloud on Title.</p> <p>A., intending to purchase certain land, had the records examined and found three mortgages on record, among them one made by a former owner to B. October 16 B. discharged the mortgage of record. October 18 A. took a deed of the land subject to the other two mortgages and recorded same. October 20 a transfer of B.’s mortgage to C. was recorded by C., who proceeded to foreclose:—</p> <p>Held, that the only question was whether A. had knowledge of the transfer from B. to C., and the evidence failing to prove such notice, A. was entitled to have the cloud upon his title removed.</p>

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

<p>Indictment charging perjury.</p>

<p>(1) Equity. Trusts. Conveyance of Land on Agreement for Support. Contracts.</p> <p>While a conveyance of property upon an agreement for the support of the donor is not often in'form a trust, it is usually such in fact, and upon breach it is more consonant with the principles of equity to treat it as an implied trust renounced by the donee than as a mere contract.</p> <p>A bill in equity seeking a reconveyance of land conveyed upon an agreement for the support of the donor will, after breach by donee, be sustained, the latter being placed in statu quo.</p>

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

<p>Bill in Equity, on grounds set forth in opinion.</p>

<p>(1) Criminal Law. Murder. Aiding and. Abetting Crime.</p> <p>Upon an indictment for murder defendant requested court to charge that, if . the jury believed deceased was dead before defendant took hold of his hands (in compliance, as he alleged, with the request of his accomplice to hold deceased’s hands while accomplice did the killing), defendant should be ■acquitted:—</p> <p>Held, properly refused; since, if defendant was present as an aider and abettor in the crime, he would be a principal, although the other did the killing.</p> <p>(2) Criminal Law. Murder. Justification of Killing by Reason of Fear of Death.</p> <p>Upon an indictment for murder defendant requested court to charge that, if defendant assisted in the killing but did'so under fear of instant death at the hands of his accomplice, he should be acquitted:—</p> <p>Held, properly refused; since request took no account of any opportunity afforded defendant to escape, or to successfully defend himself, or of the reasonableness of the fear.</p> <p>The mere fear of death at the hands of another is not an excuse for taking the life of an innocent person; but to justify such act there must be a reasonable fear exercising such an irresistible force upon the mind as to show that accused was without the power to form a premeditated intent, taken in connection with the time between the threat and the killing and the opportunity of escape open to accused.</p> <p>(3) Criminal Law. Murder. Justification of Killing by Reason of Fear of Dealh.</p> <p>The intentional killing of another, under threats from a third party, without sufficient excuse on the ground of fear,' is murder, not manslaughter.</p>

<p>Petition for mechanics’ lien.</p>

<p>(1) Questions of Law and Fact. Negligence.</p> <p>To warrant the court in directing a verdict it must appear so clearly that the court can say as matter of law either that defendant was not negligent or that plaintiff was guilty of contributory negligence.</p> <p>(2) Notice of Defect in Highway.</p> <p>Where an accident arising through a defect in a highway is caused by reason of the failure of the múnicipality to properly perform work which it was doing upon said highway, it is not entitled to notice of such defect.</p>

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

<p>(1) Wills. Equitable Estates. Vested Interests. Accounting. Mortgages.</p> <p>Testamentary bequest gave the residue of estate of testator to trustees to pay to the widow one full third of the income during life “ and the other two-thirds to pay over and distribute equally for the support, education, and advancement of all my children, said A. and B.” (two of the trustees who were of age) “ among them.”</p> <p>Complainant, who was assignee of a mortgage made by three of the children on their interest in the estate, brought a bill for an account of the income of the trust estate and to compel the payment to him of the shares of income due to his assignors:&emdash;.</p> <p>Held, that the will gave to all the children an absolute and vested right to each of his share of the income without reference to majority or other condition, and without any limitation that payments were to be solely for purposes of support, education, or maintenance.</p> <p>Held, further, that the children took vested equitable estates for the life of the mother, which estates were assignable, and hence the bill was properly brought.</p> <p>(2) Wills. Statute of Limitations. Probate Law. Accounting. Equity. Trusts.</p> <p>Where an estate was left to trustees, who were also executors, and it appeared that by an arrangement between the creditors and the estate the debts had been partially paid out of the income, which arrangement was intended to continue, whereby the statutory period allowed for bringing suit had expired, it would seem that the trustees should take the estate cum onere, and, the whole estate .thus being before the court for settlement, a bill in equity by an assignee of a mortgage of .a vested equitable interest in such estate can be maintained for an accounting.</p>

<p>Bill in Equity for instructions. The facts are fully stated in the opinion.</p>

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

<p>Habeas Corpus, on facts set forth in opinion.</p>

<p>(1) Trusts. Compensation.</p> <p>Where the relation of trustee and cestui que trust .exists, compensation for services rendered by the trustee must be sought exclusively in equity and not at law.</p>

<p>(1) Equity. Partnership. Trusts. Executors and Administrators.</p> <p>By the terms of a partnership agreement between A. & B., the partnership was to continue until-terminated by two months’ notice in writing, and contained the following provision: “Incase of the death of A. his executor or administrator shall continue in his place and stead in said partnership in the same manner as if he were living and the said B. shall conduct the business, giving to the personal representative of the estate of A. full accounts of the business. In case either such legal representative or B. shall become dissatisfied and shall desire to discontinue the business and shall give notice in writing to the other, the party so notified shall have the right to take and assume the business upon paying the debts of the firm and one-half of the value of the assets as they then appear, and one-half of the value of the good will. If he shall not choose to pay such sum, then the other may assume and take the business upon the same terms.</p> <p>A. died a resident of Boston, leaving a widow C., and, as his heirs at law, a son and a daughter. By his will C. was appointed executrix, and qualified in Massachusetts. The will devised the estate in trust for the benefit of his wife and children until the youngest child became of age, and provided: “I direct my executrix to continue the business in which I shall be interested, whether alone or in partnership, and .to use such portion of the funds as may be necessary. Such business shall be continued as long as the same shall be of profit to the estate, or the executrix, upon some emergency, shall be obliged to discontinue it.</p> <p>After the death of A., B. managed- the business, rendering regular accounts to 0., as executrix.</p> <p>G. died, giving by will her interest to her children, and appointing D. executor. D. was also appointed guardian of the children.</p> <p>B. was also appointed as administrator, de bonis non, with will annexed, of the estate of A. in succession to 0., and was also appointed trustee of the real estate in Massachusetts and Rhode Island.</p> <p>Thereupon B. managed the business for the benefit of himself and the estate of A., rendering accounts to D., as guardian, and from time to time paying over to himself, as administrator of the estate of A., one-half share of the profits.</p> <p>Thereafter E. was appointed administrator injthode Island, of the estate of A. On appeal from such appointment, and pending petition for new trial thereon, B. gave notice to E. of his desire to discontinue the business in accordance with the provisions of the partnership agreement. E. thereupon filed this bill for instructions:—</p> <p>Held, that the general scope and tenor of the partnership agreement was to leave the surviving partner in full control, not subject to the dictation of the personal representative of A., as a co-partner, but liable only to make true reports of the business to such representatives and divide the profits with them.</p> <p>Held, further, that the representatives of the estate of A. were bound by the original articles of co-partnership as long as the capital of A. remained in the business.</p> <p>Held, further, that B. had the right to discontinue the business, and that E. was the proper person to be notified of such determination.</p> <p>Held, further, that, the appointment of E. being in full force, notwithstanding the appeal, so far as receipt of notices of claims, etc., under Gen. Laws cap. 210 §§16-18, he had full capacity to receive such notice.</p> <p>Held, further, that all the power and authority, with respect to the business, which were devolved upon the representatives of A. by the articles of co-partnership were held by E., including the power to assume the business as therein specified.</p>

<p>Criminal Complaint. Certified to Appellate Division on motion to quash.</p>

<p>(1) Insurance. Ownership of Property. Forfeiture of Policy.</p> <p>Where a fire insurance policy of the standard form prescribed by Gen. Laws cap. 183 provided that it should be void if the interest of the insured should be other than unconditional and sole ownership, unless such other ownership be assented to in writing, it is vitiated by the fact that a portion of the property was held by insured on the installment plan.</p>

<p>(1) Trespass and Ejectment. Title. Occupation.</p> <p>While as to waste or unoccupied lands the title draws to it the possession and no proof of actual occupation is required, in the case of ejectment for land in the actual possession of one claiming title to it by a series of conveyances, ihe plaintiff must show good title from some unimpeachable source in order to overcome the presumption of ownership which arises from occupation.</p> <p>(2) Trespass and Ejectment. Occupation. Title.</p> <p>In ejectment proceedings where the plaintiff nas a paper title but shows no actual occupation in’himself or his ancestors, and the defendant is in actual possession, presenting also a paper title, the preference should be given to the latter title.</p> <p>(3) Trespass and Ejectment. Occupation. Title.</p> <p>In proceedings to recover possession of land, the law, as early settled in this State, is that occupation with bona fide claim of title can not be disturbed except by a party showing an unimpeachable right.</p>

<p>(1) Common Carriers. Contributory Negligence. Crossing Track in Front of Car.</p> <p>Where a person, with an unobstructed view of an approaching car, attempts to crbss the track in front of it, with no emergency to confuse him or to require him to cross, he is guilty of contributory negligence so as to bar recovery, although the car was approaching at excessive speed, and even increased such speed as he started to cross.</p>

<p>(1) Contracts. Assignable or not Assignable.</p> <p>Where there is no restriction expressed in the contract, the fact of its being assignable depends upon -whether the personal service or liability of either of the contracting parties is required, and this may appear from the implied intention of the parties upon a construction of the contract.</p> <p>(2) Contracts. Release.</p> <p>An agreement by which all rights of parties under a contract to each other should cease and determine is broad enough to include all rights of action growing out of such contract, thus amounting to a release.</p>

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

<p>Petition for construction of will.</p>

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

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

<p>(1) Wardens’ Court. Certifying Cause to Another District. Mandamus. Board, of Canvassers°. Illegal Voting. ■</p> <p>Mandamus will not lie to compel the wardens of the town of New Shoreham, who were also members of the board of canvassers of said town, to certify certain complaints for alleged illegal voting, pending before said wardens’ court, to the District Court of the First Judicial District, under the provisions of Gen. Laws cap. 228, § 16, on the ground that said wardens were disqualified to act because, as members of the board of canvassers, they approved the voting-lists used at the election where such illegal voting occurred, where it appears that the qualifications of the defendants as legal voters was never litigated before or determined by the board of canvassers.</p> <p>(2) Mandamus. Private Relator.</p> <p>Qucere, whether, under the rule in O’Brien v. Board, of Aldermen, 18 R. I. 113, mandamus would lie at the relation of a private citizen, without a request to the attorney-general to act.</p> <p>(3) Certifying Action to Another District Court.</p> <p>Queere, whether a cause can, under Gen. Laws cap 228, § 16, be certified from the wardens’ court of New Shoreham to the District Court of the First Judicial District, inasmuch as New Shoreham, under Gen. Laws cap. 228, § 1, would seem to be a part of said first district.</p>

<p>•(1) Trespass and Ejectment. Notice to Quit. Tenant by Sufferance. Tenancy .from Month to Month. Contracts.,.</p> <p>A. entered into thé possession' of certain real'estate belonging to B., under an agreement by which he was to receive a deed of the property at such time as the purchase price, together with interest, should have been paid, said price to be paid in monthly installments! A. also agreed to pay all taxes, repairs, and insurance. It was further provided-that, in ease of breach of the conditions by A.., all payments should be forfeited. .</p> <p>A. having failed to make the payments due under the agreement and to pay the taxes and insurance, B. notified him that, although he was in default, if he Would continue to ¿lake the payments punctually, he would finally • deliver him a. deed, otherwise he .should insist upon his vacating. Thereupon A. made one payment, and .then entirely ceased. B., by attorney, thereupon notified A. to quit, sending the notice, properly addressed, by mail. After verdict for plaintiff, in ejectment proceedings:—</p> <p>Held, that, A. having forfeited the contract, it was competent fot B. to treat him as a tenant by sufferance or permit him to remain as tenant from month to month.</p> <p>Held, further, that, by sending A. the letter, 'B., in effect, offered to treat him as a tenant in possession, paying rent from month to month, until such time as the purchase price was paid, which offer was accepted by A. by the payment, of the first month’s rent.</p> <p>Held, further, that, by allowing the stipulated rent thereafter to become in arrears, he was liable to be sued out without notice, under Gen. Laws cap 269, § 7. •</p> <p>Whether notice to quit, sent by mail, is sufficient, is not decided.</p>

<p>(1) Master and Servant. Negligence. Belting. Inspection. Damages.</p> <p>The duty of a master in respect to construction and inspection of belting’" established in Cummings v. National Mills, 24 R. I. 390, and McGar v-Providence Worsted Mills, 22 R. I. 347, affirmed.</p> <p>In an action against a master, for negligence arising out of the improper fastening and inspection of a belt, evidence considered and verdict approved.</p>

<p>(1) Negligence.</p> <p>In an action for negligence arising from the burning out of á transformer of defendant, whereby an excessive current of electricity was let into the premises of plaintiS, which were wired and insulated for a low voltage which plaintiff had contracted with defendant to receive, evidence considered, and:—</p> <p>Held, to sustain verdict.</p> <p>(2) Evidence. Expert Witnesses.</p> <p>An expert witness may be properly interrogated to show his familiarity with the condition of an art as theoretically stated by scientists engaged in the investigation of the practical application of the same to the affairs of human life.</p> <p>(3) “Death by Wrongful Act.” Measure of Damages.</p> <p>The measure of damages, in an action under Gen. Laws cap. 233, § 14, for the recovery of damages for death caused by the “ wrongful act, neglect, or default of another” is the pecuniary loss sustained. Nothing can be given by way of solace for wounded feelings or for the bereavement suffered or for the pain and suffering of the deceased, and nothing for loss of society 6f the husband and father. The loss süstained' by the parties plaintiff in such action is the present value of the net result remaining after the personal ■expense's of deceased are deducted from his income.or earnings, ascertaining the gross amount of such prospective income or earnings and deducting therefrom what deceased would have had to lay out to acquire the money that he might be expected to produce.</p>

<p>(1) Contracts. Whether Assignable or Not.</p> <p>Although a contract maybe in terms between the parties, “their executors, administrators, and assigns,” the term “assigns” is not controlling where the body of the contract shows that it is of a personal nature and not assignable.</p>

<p>(1) Trespass quare clausum fregit. Easements. Estoppel.</p> <p>In an action of trespass quare clausum fregit for tearing down a stone wall, where defendant pleaded, by way of justification, a 'removal of an obstruction to a right of way appurtenant to defendant’s land, a verdict recovered by an ancestor of plaintiff against an ancestor of defendant, in an action of trespass for taking away seaweed over plaintiff’s land for use on other land than that to which the way was áp'pürtenant, is not’ an estoppel in the present action. ■ ■</p> <p>(2) Trespass quare clausum fregit. Easements. Pleading.</p> <p>In an action of trespass quare clausiim fregit, where defendant pleaded a right to use the way for the purpose of taking seaweed, appurtenant to the land of which he was tenant, to which plaintiff replied a trespass by the use of the way for other land than that to which the way applied, which trespass defendant confessed in his rejoinder, plaintiff is entitled to judgment.</p>

<p>Bill in Equity on grounds set forth in opinion 26 R. I. 295. Heard on motion of respondent to modify restraining order.</p>

<p>Petition for Divorce. Heard on motion for allowance, counsel fees, and expenses, on objections of respondent to-jurisdiction of court.</p>

<p>(1) Evidence. Public Records.</p> <p>A resolution of the city council of Newport, passed in 1855, referred to a committee of the council the matter of the copying the records of the town of Newport prior to the Revolutionary War. There was no official record of the action of the committee, but it appeared in evidence that some at least of the records were copied and deposited in the office of the city clerk, and. have been since used instead of the original. The remains of the original records were deposited with the State record commissioner.</p> <p>A copy of a vote passed by a town meeting in Newport, October 29, 1739,. was sought to be proved by offering in evidence a copy, duly certified by the city clerk, of an extract from a book entitled “ Copied Land Evidence,, vol. I.” There was evidence that the book was copied from the original records in 1857 under the supervision of the town clerk, since deceased. The-remains of the original records contained no record of the town meeting in question:—</p> <p>Held, that, as the record had been used for nearly fifty years as the only available record of the proceedings to which it related, every presumption should be made in favor of its correctness, and the certified copy was properly admitted as being taken from a recognized public record.</p>

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

Trespass on the Case. Heard on motion of plaintiff that a counsel fee be allowed him, under rule 36 of the rules of practice, on the overruling of defendant's demurrer.

<p>(1) Quorum of Appellate Division. Single Justice. Jurisdiction.</p> <p>A single justice of the Supreme Court, assigned to the Appellate Division, isa quorum for the trial of all petitions for divorce, whether contested or uncontested; and all incidental questions arising in connection with the trial of such cases are within the jurisdiction and subject to the final decision of such justice, without authority in the Appellate Division either to reverse or review his finding.</p> <p>(2) Evidence. Confidential Communications. Privileged Communications Physicians.</p> <p>Semble, that a confidential communication to a physician is not privileged so as to protect the physician from divulging it when called upon to do so as a witness.</p>

<p>Action of the Case for death, by wrongful act.</p>

<p>(1) Building Contracts.</p> <p>Where a building contract between a contractor and the owner provided that no allowance should be made to the contractor for delays in the completion of the work caused by the neglect, delay, or default of the owner or architect, unless a claim therefor in writing was presented to the architect within twenty-four hours of the occurrence of such delay, a failure to give such notice is a forfeiture of any right on the part of the contractor to any extension of time under the contract.</p>

<p>Petitions in the nature of quo warranto.</p>

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

<p>Petition for enforcement of a mechanic’s lien.</p>

<p>(1) Mandamus. Elections. Nomination Papers.</p> <p>Nomination papers were submitted to the city clerk of the city of Providence, under the provisions of Gen. Laws cap. 11, § 13, for certification as to the number of qualified voters represented by the signatures thereon. The city clerk certified that more than the required number of signatures were the names of qualified voters,, but subsequently, after an investigation, certified that a sufficient number of names were shown to have been fraudulently signed to reduce the number below the required number and refused to place the names of the candidates upon the official ballot.</p> <p>Upon mandamus to the city clerk, and after hearing: — ■</p> <p>Held, that sufficient objections appeared, together with evidence of deliberate fraud, to justify the refusal of the petition for mandamus.</p> <p>(2) Elections. Nomination Papers.</p> <p>Gen. Laws cap. 11, § 13, provides that “Each voter signing a nomination paper shall add to his signature his place of residence, and each voter may subscribe to one nomination for each office and no more”:—</p> <p>Held, that the word “subscribe” as used in the section was restricted in its application to an act performed by one in person, but'did not include that which one does for another under claim of authority so to do.</p> <p>(3) Elections. Nomination Papers. Signatures.</p> <p>The name of a qualified voter as it appears upon the voting lists is the standard by which the signatures to nomination papers are to be tested. This excludes abbreviation and initials, unless they appear on the voting list.</p> <p>(4) Electors. Nomination Papers.</p> <p>By the provisions of Pub. Laws cap. 1078, § 8, the signing of nomination papers is a disqualification for participation in the caucus of any party, and the participation in the caucus of any party is a disqualification to sign nomination papers, but the signing of nomination papers in one case is not a disqualification for the signing of nomination papers in another case.</p> <p>Gen. Laws cap. 11, § 14, provides that nomination papers shall contain as to each candidate “ the party or political principle which he represents expressed in not more than three words”:—</p> <p>Held, that the primary purpose of these provisions for nominations was that electors might place in nomination candidates representing a political principle which they desired to support at the polls, and not that persons might nominate candidates whose principles they did not adopt and whom they expected to oppose at the polls.</p>

<p>(1) Contracts. Sales.</p> <p>Defendant agreed to purchase a quantity of tea at fifty-two cents a pound. Plaintiff agreed to give to the purchaser of every pound of tea a deed of §. house lot, until all the lots were deeded, on receipt of two dollars for executing the deed. Defendant guaranteed to have all lottf deeded in three months. Plaintiff delivered to defendant a supply of tea, and gave deeds of the lots when requested. At the end of three months there remained in plaintiff's possession a number of lots, and in defendant's possession a supply of tea. After verdict for plaintiff, in an action for breach of contract:—</p> <p>Held, that the contract contemplated the purchase of the tea by defendant, the amount being fixed by the acts of the parties.</p> <p>Held, further, that plaintiff was entitled to recover the fixed price per pound for the amount of tea delivered and accepted by defendant, plus the sum of two dollars per lot for all lots remaining unsold, less the present value of the lots.</p>

<p>(1) Mechanics’ Mens. Election of Remedies.</p> <p>A mechanic’s lien is additional security given by statute upon certain conditions, but does not abrogate the contract between the workman and his employer.</p> <p>Hence a petition for mechanic’s lien will lie in favor of a subcontractor, although he is at the same time prosecuting an action at law against the original contractor in which action the fund in the hands of the owner of the-property has been attached.</p> <p>(2) Election of Remedies. Remedies in rem and in personam.</p> <p>The rule that equity will require a complainant to elect between his remedy at law and in equity applies only to cases where the demand at law and in equity are equally personal, and not where the cumulative remedy is in personam while the other remedy is in rem.</p>

<p>(1) New Trials. Review of Judgment of Common Pleas Division. Defaulted Cases. Assessment of Damages.</p> <p>After judgment by default and assessment of damages by a single justice, a petition for new trial, brought under Gén. Laws cap. 251, § 6, will not lie.</p> <p>The Appellate Division has no authority to review a judgment of the Common Pleas Division except as provided in section 2 of chapter 251 of the General Laws.</p>

<p>Petition por Habeas Corpus. •</p>

<p>Bill in Equity seeking to annul a mortgagee's sale.</p>

<p>Case stated for an opinion under Gen. Laws cap. 240, § 24.</p>

<p>(1) Trustee Process. Affidavit by Trustee.</p> <p>No person other than the trustee named in a writ, where the trustee is an individual, is authorized to make the affidavit required by the provisions of Gen. Laws cap. 254, § 10.</p> <p>(2) Trustee’s Affidavit. Garnishment.</p> <p>The affidavit of a trustee under the provisions of Gen. Laws cap. 254, § 10, must be filed within the statutory time, and the court has no authority to extend the time fixed by the statute.</p> <p>(3) Charging Trustee. Garnishment.</p> <p>The court is not authorized to charge a trustee upon his default to make affidavit, but his liability is statutory under Gen. Laws cap. 254, § 20.</p>

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

<p>(1) Landlord and Tenant. Public Nuisances. Negligence. Duty of Lessor to Strangers.</p> <p>Where the premises demised are in such a condition as to constitute a public nuisance at the time of the letting, the lessor is liable for injuries sustained by a stranger subsequent to the letting while lawfully using the sidewalk adjacent to the premises, regardless of the length of time for which the lease is to run.</p> <p>(2) Landlord and Tenant. Public Nuisances. Duty of Lessor to Stranger. Joint Duty of Lessor and Lessee to Stranger.</p> <p>Where there has been a public nuisance of continued existence upon demised premises, the lessor and lessee may both be held liable for damages resulting therefrom.</p>

<p>(1) Covenants. Deeds.</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 executrix of A., paid the indebtedness to B. and requested a return of the deed, which B. stated he could not find. B. deceased, and D., administrator of B., found the deed, refused to deliver it to C., and recorded it. Plaintiffs, the devisees of A., brought covenant against defendants the heirs at law of B. On demurrer:—</p> <p>Held, that, as the title passed wholly from A. to B., and the agreement did not bind or run to the heirs and assigns of the parties, there was no privity with respect to the land between the parties plaintiff and defendant.</p> <p>Held, further, that the executrix of A. took the covenant merely as a chose in action which bound the covenantor personally, but not his heirs or devisees.</p> <p>Knowles v. Knowles, 25 R. I., 464, explained.</p> <p>(2) Covenants,, Deeds.</p> <p>The personal covenant of an ancestor does not bind his heirs unless they are named in the deed.</p>

<p>(1) Board of Registration in Dentistry. Mandamus.</p> <p>The duties imposed upon- the board of registration in dentistry by statute, as to the qualification of candidates, are not merely ministerial, but, in this- . respect the board is vested with discretionary an'd judicial powers, the exercise of which can not be controlled by mandamus.</p> <p>Semble, that the remedy of a person who Has been rejected by'the board because of improper motives is by an action for damages against the individual members, alleging bad faith or other malversation in their discharge of their duties.</p>

<p>(1) New Trial. Withdrawing Pleadings.</p> <p>A new trial will not be granted because prior to the impaneling of the jury-defendant was permitted to withdraw a plea.</p> <p>The trial court has large discretionary powers in matters of this kind, and unless it clearly appears that the discretion was abused, the action will not be reviewed. Hall v. Greene, 24 R. I. 286, distinguished.</p> <p>(2) Pleading. Affidavit of Defence.</p> <p>Where a plaintiff permits a cause to proceed to trial without relying upon his statutory right to demand an affidavit of defence, he will be deemed to have waived his right, and no advantage can be taken thereof thereafter.</p> <p>(3) Affidavit of Defence. Default.</p> <p>Semble, where a case is defaulted for want of affidavit of defence the trial court has the power to set aside the default and allow the affidavit to be filed, under the rule in Johnson v. Iloxsie, 19 R. I. 703.</p>

<p>•(1) Negligence. Res Ipsa Loquitur.</p> <p>Declaration for negligence alleged that while defendant was unloading a consignment of lumber from a car in yards of a railroad company it fell and fatally injured plaintiff’s intestate, a general laborer in the employ of the railroad company, who was working near the car, and charged the negligence specifically in that the lumber was piled upon the car without being tied, fastened, or confined:—</p> <p>Held, that the doctrine of “res ipsa loquitur” did not apply, since the falling of pieces of lumber while being unloaded is not such an occurrence as does not happen in the ordinary course of things, even while those in control are in the exercise of proper care.</p> <p>■(2) Negligence.</p> <p>Held, further, that defendant was not responsible for the manner in which the lumber was piled upon the car when he received it, but his duty was simply to use reasonable care in unloading it.</p> <p>Held, further, that the declaration was bad in that it failed to set out wherein the defendant was negligent in unloading the ear.</p>

<p>(1) Master and Servant. Proper Appliances.</p> <p>Where in the course of employment it is necessary to use certain appliances, it is the duty of the master to furnish reasonably safe appliances to do the work; and if the master furnishes suitable appliances of different sizes and weights adapted to the work, its duty is discharged, and the use and application is the duty of the servant; so that, where the servant employs appliances unfit as regards size or weight, the negligence is that of fellow-servants, consisting in the use attempted to be made of the appliance and not in the appliance itself. . • .</p> <p>(2) Master and Servant. Proper Appliances.</p> <p>It is the duty of a master to furnish a sufficient number of men to do the work properly with the appliances at hand, but it is not bound to anticipate and furnish such additional number of men as would be required to perform the work in consequence of the improper and unworkmanlike manner of using the appliances furnished.</p>

<p>(1) Pleading. Variance.</p> <p>Where the only variance between a writ in trespass and the declaration consists in the omission in the declaration to*state that the act was “vi et armis et contra pacem” a motion in arrest of judgment will, under the powers of amendment conferred by Gen. Laws cap 235, § 3, be denied. ' <</p> <p>(2) Variance. Amendments.</p> <p>Semble, where a plaintiff has his election to bring either trespass or case, any variance between the writ and declaration as to the two forms of action would be amendable.</p> <p>(3) Arrest of Judgment.</p> <p>A motion in arrest of judgment can not be acted upon by either a District Court or the Common Pleas Division, but must be certified to the Appellate Division for its decision.</p>

<p>Bill in Equity.</p>

<p>(1) Replevin. Bonds.</p> <p>The fact that a replevin bond is not dated'will not of itself affect its validity.</p> <p>(2) Replevin. Bonds.</p> <p>A bond in replevin running in the name of “The X Company by its manager, A. B.,” and signed by A. B., is not such a bond as is prescribed by the statute.</p> <p>(3) Replevin. Bonds. Waiving Defects.</p> <p>Objections to the insufficiency of a replevin bond are waived by pleading to the merits.</p>

<p>Bill in Equity.</p>

<p>(1) Bills and Notes. Joint Makers.</p> <p>It has been uniformly held in this State, prior to the passage of the negotiable instruments act, which-does not apply to instruments made before July 1, 1899, that one who endorses a note payable to another before its issue is liable to the payee as a joint maker.</p> <p>(2) Bills and Notes. Endorsers.</p> <p>Whether a signature is actually endorsed upon a note before or after it comes to the possession of the payee is immaterial, if it is part of the agreement between the parties that the note shall be so endorsed to be acceptable.</p>

<p>(1) Contribution. Evidence. Res Gestos.</p> <p>In an action for contribution, under an alleged agreement of co-suretyship, between the defendant and the testator of plaintiff for the payment of the note of a third party, declarations of-the testator in his own interest, which were mere narratives of past events made in the absence of the defendant, are inadmissible as part of the res gestee.</p> <p>(2) Bills and Notes. Agreement for Co-Suretyship.</p> <p>To enlarge the liability of an endorser from that implied by law from the position of his signature on a note would require an express contract; for ° there can not exist at the same time two inconsistent implications concerning the same subject-matter.</p> <p>(3) New Trial.</p> <p>A new trial will not be granted for physical or mental disability existing at the jury trial, where a party goes to trial without asking for a continuance on such grounds.</p>

<p>(1) Negligence. New Trial.</p> <p>A verdict for plaintiff supported by her testimony aloné will bé set'aside where the accident of which she complained to be the victim was denied by the conductor, motorman, and passengers of the elective car, and plaintiff, although suffering severe injury as alleged, in no way attracted the attention of any other person to the fact that she was injured.</p>

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

<p>Petition for construction of a will.</p>

<p>(1) New Trial. Reinstatement of Case. Judgment by Mistake.</p> <p>The power conferred by Gen. Laws cap. 246, § 2, to any court within six months after entry of judgment by default or mistake, to set aside the judgment and reinstate the case, is discretionary in the division where the judgment was rendered, and when it has been exercised is not subject to review in the other division.</p> <p>Where a motion to reinstate a case which had been dismissed on the statement by plaintiff that he desired it discontinued has been denied by the Common Pleas Division, a petition for new trial of such motion will not be entertained by the Appellate Division.</p>

Trespass on the Case. The declaration alleged that defendant town negligently graded a public highway and constructed gutters therein so as to collect and conduct in confined channels large streams of surface water which did not flow upon the land prior to the grading of said highway, and would not have flowed thereon at any time had the grade not been changed and discharged the said water in and upon the land.

<p>(1) Covenants of Warranty. Covenants Running with Land. Covenants in Proisenti. Covenants of Seisin.</p> <p>Real covenants in prcesenti, which are broken, if at all, at the instant of their creation do 'not run with the land, but are mere rights of action available only to the grantee or his personal ■ representatives. These include the covenant of seisin.</p> <p>Covenants in prcesenh do not require the eviction of the covenantee under a paramount title to constitute a breach; and so, in an action on the covenant for seisin, it is unnecessary either to aver an eviction or lay special damages.</p> <p>(2) Purchase Money Mortgages. Covenants of Warranty. Estoppel.</p> <p>Covenants in a mortgage given to secure purchase money will not estop the ‘mortgagor, where the deed and mortgage are one and the same transaction, from suing on the covenants of the deed.</p> <p>(3) Covenants of Warranty. Rebutter. Mortgages.'</p> <p>The common-law doctrine of rebutter may be in general regarded as foreign to the practice of this State, and has no application as a defence to an action of covenant brought by the mortgagor 'in a purchase-money mortgage against his grantor, the mortgagee, for breach of the covenant of seisin contained in his deed to his grantee, the mortgagor, both of which deeds contain like covenants.</p>

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