Volume 28 — Rhode Island Reports

<p>(1) Deceit.</p> <p>Deceit will lie for obtaining credit by making false and fraudulent representations regarding solvency or pecuniary responsibility if the representations consist of definite statements of fact as distinguished from mere estimates or expressions of opinion.</p> <p>(1) Deceit. Measure of damages.</p> <p>The measure of damages in an action for deceit for obtaining credit by false representations is the loss actually sustained by the plaintiff by reason of his reliance upon the alleged false representations of the defendant.</p>

<p>{1) Physicians and Surgeons. Unprofessional Conduct.</p> <p>Upon an appeal from the decision of the State Board of Health revoking the certificate of a physician upon the ground of “ gross unprofessional conduct” and “ conduct likely to deceive and defraud the public,” in the absence of testimony showing the falsity or extravagance of statements attributed to appellant, the court can not take judicial notice of matters requiring expert medical knowledge.</p>

Petition in Equity, stating a case to the court for an opinion under provisions of section 323 of the court and practice act.

<p>(1) Levy of Execution.</p> <p>Execution levied December 10th on a judgment entered June 10th is in strict accoi'd with Gen. Laws cap 256, § 19, so as to prevent discharge of the original attachment, construed in accordance with chapter 26, section 12, excluding from the computation of the term of six months the day of the date on which an act is done.</p> <p>(2) Conveyance fraudulent as against creditors. Burden of Proof.</p> <p>Where a person, being notified of a claim against him, pays no attention to the claim and for a nominal consideration immediately conveys to his wife property of large value, being all the property of which he is possessed upon which process may be levied for the satisfaction of the debt, and, the claim being reduced to judgment, execution is returned practically unsatisfied, there is sufficient prima facie evidence that the conveyance was made “to the intent or purpose to delay, hinder, or defraud creditors,” and the burden is cast upon the defendant to explain the transaction and to show that the conveyance was not within the purview of the statute.</p> <p>(3) Fraudulent Conveyances. Jurisdiction at Law and in Equity.</p> <p>The jurisdiction of the law and equity courts in this State to determine the question of fraudulent conveyances is concurrent, and a party may proceed in either manner at his option.</p>

<p>(1) Indictments. Practice of Medicine.</p> <p>The words "practice of medicine,” as used in Gen. Laws, cap. 165, must be construed to relate to the practice of medicine as ordinarily and popularly understood, haying relation to the art of preventing, curing, or alleviating disease or pain. If the acts shown by the evidence amount to the practice of medicine as meant by the statute, a defendant is not protected by his claim of ignorance of any or all of the learning which is necessary for the safe and successful treatment of disease or by his disclaimer or assumption of any kind or number of titles.</p> <p>Evidence considered, and</p> <p>Held, that the acts of the defendant amounted to the practice of medicine in violation of Gen. Laws, cap. 165, as amended by Public Laws, cap. 926.</p> <p>(2) Evidence.</p> <p>Upon an indictment for the illegal practice of medicine, the opinion of a witness as to what constitutes the practice of medicine is immaterial and properly excluded.</p> <p>(3) Evidence. Secret Process.</p> <p>Upon an indictment for the illegal practice of medicine, the State may properly inquire of the defendant as to the ingredients of the “nerve food” administered by him, the consideration of trade secrets being secondary to the public rights involved.</p> <p>(4) Practice of Medicine. Indictments.</p> <p>The statutes relative to the practice of medicine are intended to protect the public from pretence and sham, as well as from ignorance; and therefore if a defendant prescribes or administers something which he claims alleviates pain or cures disease, it can not avail him to show in defence that what' he administered did not have the qualities claimed for it.</p>

Mechanics’ Liens. Heard on exceptions of garnishee to ruling of Superior Court charging him as such, and on exceptions of certain plaintiffs to ruling of Superior Court discharging the garnishee in their respective cases.

<p>Petition in equity to wind up the affairs of an insolvent corporation.</p>

<p>(1) Procedure. Introduction of Evidence.</p> <p>The court may in its discretion allow the introduction of pertinent evidence at any time during the trial of a case.</p>

<p>(1) Election Supervisors. Town Committees. Quo Warranto. Ouster.</p> <p>In view of the peremptory provisions of section 32 of chapter 11 of the General Laws, requiring a town council to make its appointment of supervisors from lists presented by the town committees, if such lists are presented, a town council is negligent, which, having notice of the claims of different parties to lawfully act as such committee, makes appointments of supervisors without inquiry as to which is the lawful list, and upon petition in the nature of quo -warranto it appearing that such appointments were not made from the list submitted by the lawful town committee, a decree of ouster will be entered.</p>

<p>(1) Exceptions. Certiorari.</p> <p>Upon the coming in of an auditor’s report, the record reciting the reference . was amended; judgment entered for the plaintiff, and defendant’s claim of jury trial denied. Defendant claimed exceptions to the decision for the plaintiff; to the amendment of the record; to the entry of judgment and denial of claim for jury trial; which bill of exceptions was allowed.</p> <p>Qucere: there being no allegation of error in the decision, but the complaint involving subsequent proceedings, which, if erroneous, might be reviewed on certiorari, if defendant had pursued the proper remedy in bringing the questions before the court.</p> <p>(2) Amendment of Record. Auditor’s Report.</p> <p>An order of reference to an auditor in the Superior Court recited that it was made “upon motion of court.” After the coming in of the report, the record was amended by substituting the words “by agreement of parties.”</p> <p>Held, no error, since it is the right and duty of the court to correct its records to conform to the facts.</p>

<p>(1) Divorce. Production of Documents, Final Decrees. Appeal.</p> <p>By court and practice act, section 328, an appeal is given to “any person aggrieved by a final decree of the Superior Court in any cause in equity or proceeding following the course of equity.”</p> <p>Held, that a decree ordering the production of documents in a divorce proceeding was not a final decree within such provision, and no appeal would lie therefrom.</p>

<p>(1) Stating questions for opinion of supreme court.</p> <p>Section 323 of the court and practice act relative to stating a question for the opinion of the Supreme Court is intended to furnish a means by which all parties who have adversary interests in such matters as are set forth in the statute may bring them before the court in this summary manner, and it is necessary that all parties having such interests should concur in the statement of the case to bring themselves within the meaning of the section.</p> <p>The statute was intended to apply only to cases where all the facts necessary to the decision of the court can be ascertained from the concurrent statement of the parties, and not to cases of controverted statements of fact to be ascertained aliunde such concurrent statement.</p> <p>Although the statute provides that the court may order any person having an interest to be summoned in and be made a party, it would still be the privilege of such a party to refuse to concur in the statement of. the other parties and to have disputed facts ascertained by appropriate means.</p> <p>Neither could the court, upon such a case stated, appoint trustees for the purpose of administering bequests, since this would be administering relief which the court has no jurisdiction to do under such statute.</p>

<p>Exceptions from Superior Court.</p>

<p>(1) Malicious Prosecution. Service of Process.</p> <p>An action for malicious prosecution will not lie against a defendant for procuring the issuance of a warrant against plaintiff upon a charge that is not actionable per se, where no service was made upon the plaintiff and no allegation of special damage accruing before the service, is made.</p> <p>(2) Malicious Prosecution. Termination of Case.</p> <p>A case can not be said to have terminated in favor of a party, so as to sustain an action for malicious prosecution by him, unless he has been made a party to it by the service of process; neither can such case be considered terminated without the action of the court in discharging the accused or in recalling the warrant.</p>

<p>Bill in Equity for an account.</p>

<p>(1) Appeal from, Decree in Divorce.</p> <p>A right of appeal does not lie from a final decree of the Superior Court in a petition for divorce.</p>

<p>(1) Landlord and Tenant. Tenant from Month to Month.</p> <p>Gen. Laws, cap. 269, sec. 6, provides: “The time agreed upon in a definite letting shall be the time of the termination thereof for all purposes, and if there be no time of termination agreed upon, it shall be deemed a letting from year to year: Provided, in any case of a letting at a certain rate per month without any other reference as to time the letting shall be deemed a letting from month to month.”</p> <p>Held, that the words “without any other reference as to time” contemplate such a reference to time as tends to show that a period of tenancy other than a month was intended.</p> <p>Held, further, that a statement to a tenant under a former lease, by the landlord who had recently purchased the premises, that the tenant might continue his occupation by paying the same price per month that he had paid the former landlord, and that when the store was wanted he would be given a certain notice, constituted a letting from month to month.</p>

<p>Certified to Supreme Court by Superior Court, on question of law.</p>

<p>Petition for writ of prohibition.</p>

<p>(1) Common Carriers. Transfers. Expulsion of Passenger. Actions.</p> <p>If a passenger upon a street car is entitled to his transportation and presents to the conductor the evidence of his right which the company has established for that purpose, he may lawfully resist expulsion and recover in a suitable action against the company for damage caused by the violence of its servant. ^</p> <p>(2) Transfers. Statutes. Rules of the Carrier.</p> <p>If a transfer offered by a passenger upon a street car was good for passage upon the car where he offered it, according to the rule and practice of the carrier, it is immaterial whether the statute regulating transfers had compelled the carrier to enact such a rule and establish such a practice. The obligation of the carrier to the public had been established by its own course of dealing, and so had become binding upon it by its voluntary act, whether it exceeded the requirement of the statute or pot.</p> <p>(3) Verdicts. Excessive Damages.</p> <p>Where transfers, good for passage upon the car where they were offered, had been refused on previous occasions and fare demanded which had been subsequently refunded by the carrier, a verdict for $175 for the expulsion of the passenger by the servants of carrier, on a third occasion under similar circumstances is not excessive.</p>

<p>(1) Embezzlement. Criminal Complaint. New Trial.</p> <p>Where there is no ground on which a jury could have found for the plaintiff except that the defendant embezzled the money of the plaintiff, as no criminal complaint had preceded the bringing of the action under Gen. Laws, cap. 233, § 16 (in force at the time the cause of action accrued), a new trial will be granted.</p> <p>(2) Pleading and Practice. Actions. Guardian and Ward.</p> <p>An action in behalf of a person of full age, brought in her name by the guardian of her person and estate, is in proper form.</p>

<p>(1) Employer’s Liability Insurance.</p> <p>Defendant, under an employer’s liability policy, agreed to indemnify plaintiff against loss arising from legal liability for damages on account of bodily injury or death of employees, said indemnity not to exceed the sum of $5,000 in respect of any one employee. Under the terms of the policy the defendant should at its own cost undertake the defence of any legal proceedings in behalf of the plaintiff, and should have entire control of such defence:</p> <p>Held, that a reasonable construction of the provisions of the policy was that the insurance company should be responsible for the employment of counsel, the fees of witnesses called in defence, and'such other expenditures as were necessary to conduct the defence, but not including either the costs or interest in the execution.</p>

<p>Bill in Equity seeking relief fully stated in opinion.</p>

<p>(1) Insane Persons. Certificate of Commitment.</p> <p>Gen. Laws, cap. 82, § 11, providing that “Insane persons may be removed to and placed in said Butler Hospital or in any other curative hospital for the insane of good repute in this State, by their parents, or parent, or guardians, if any they have, and if not, by their relatives and friends; but the superintendent of said hospital shall not receive any person into his custody in such ease without a certificate from two practicing physicians of good standing, known to him as such, that such person is insane,” does not require that the certificate should be sworn to, or that it should be signed by physicians practicing in this State, or that they should not be officers of an institution for the care of the insane, or that the removal should be from another hospital.</p> <p>(2) Insane Persons. Foreign and Domestic Guardians.</p> <p>In the construction of the above statute the word “guardian” should be held to include those of foreign as well as domestic appointment.</p> <p>(3) Insane Persons. Constitutional Law.</p> <p>Gen. Laws, cap. 82, “Of restraint and cure of the insane,” as amended, is not in violation of the clause of the 14th amendment to the constitution of the United States as depriving a person of life, liberty, or property without due process of law, but is a reasonable exercise of the legislative power.</p>

<p>Appeal erom Decree of Probate Court.</p>

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

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

<p>Criminal Complaint.</p>

<p>Trespass and Ejectment.</p>

<p>Criminal Complaint certified from Superior Court for opinion.</p>

<p>(1) Replevin. Pleading.</p> <p>A defendant in replevin can not set up title in a third person unless he connects his possession with such person’s title and shows a right thereto acquired from the owner, and thus establishes a paramount right to that of the plaintiff justifying either the taking or detention of the property.</p>

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

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

<p>Petition praying that certiorari issue to the Superior Court. The facts are fully stated in the opinion.</p>

<p>(1) Negligence. Duty to Look and Listen Before Crossing Track.</p> <p>The obligation to look and listen when approaching a track upon which cars are run is so well established as the duty of a prudent person that a neglect of it must be held to be negligence in law, and not a mere circumstance for the jury to consider in passing upon the question of a plaintiff’s care.</p>

Criminal Complaint, under General Laws chapter 14, section 2. Certified to Supreme Court from District Court of the Sixth Judicial District under provisions of court and practice act section 478.

<p>(1) Elections. Fraudulent Voting. Criminal Complaint. Duplicity.</p> <p>A criminal complaint against a defendant, under the provisions of Gen. Laws cap. 14, § 2, for voting a second time, which charges the first voting to have been wilful and fraudulent and then alleges the second voting also to have been illegal, charges two offences in one count and is bad for duplicity.</p>

<p>Petition in Equity in nature of quo warranto.</p>

<p>(1) Procedure. Motion to Increase ad Damnum. Continuance.</p> <p>The discússion of a motion to increase the ad damnum in the presence of the= jury who are to decide the case is good ground for a continuance if desired by defendant, and the refusal of such continuance is sufficient to warrant the granting of a new trial.</p>

<p>(1) Master and Servant. Assumed Risks.</p> <p>Intestate was employed by defendant as a piper and was at work, assisted by a fellow workman, hanging a dripping-pan upon the main steampipe running from the boiler to the engine room. The pipe had been in use for over fifteen years and there was a heavy “ T ” joint at the place of the accident, which joint had leaked intermittently ever since its installation. The joint and thread where the pipe engaged the “ T ” had been “ calked ” repeatedly for years, so that a groove running entirely round the rim of the “ T ” was formed, and several of the outer threads had become entirely destroyed. The day before the accident the attention of both the master mechanic and mechanical engineer of defendant had been called to the joint, which they inspected, and some calking was done that afternoon by intestate.</p> <p>After this examination defendant’s engineer, who had full control of the matter, gave orders to take measurements for a new pipe to be installed. During the night before the accident pipers and calkers worked on the joint endeavoring to stop the leakage, which was excessive. Steam was shut off in the pipe about three o’clock A. M. the day of the accident.</p> <p>It was in evidence that an employee who assisted about the calking between three and five o’clock A. M. saw evidence there had been a slipping of the joint where the pipe and “ T ” came together between the time when he first saw the joint, when the steam was at full pressure on the previous evening, and the time he went to work after the steam was shut off at three o’clock A. M., and that he called the attention of another employee to this, which was reported by the latter to another employee who had charge of the' piping and repairs there as soon as he came in the following morning, about 6:25 A. M. Intestate came to work at 6:30 A. M., and went up on a ladder to hang a new dripping-pan on the pipe, within twenty minutes after the report was made, no warning being given him of the condition of the joint or that it was believed to have slipped. Within three minutes thereafter the pipe and “ T ” pulled apart and intestate was killed by the escaping steam. Intestate was an experienced steam fitter, and had frequently worked upon the jpint and had knowledge of its leaking:—</p> <p>Held, that intestate did not assume any risk as to conditions unknown to him at the time of the accident, but that the foreman took the risk in ignoring the information given him about the slipping of the pipe in the "T,” which was negligence of the grossest character which must be imputed to the defendant as the master.</p>

<p>(1) Evidence. Experiments.</p> <p>Experiments or tests offered by a party to be put in evidence are properly-excluded where it is apparent that the tests were not made under conditions substantially identical with those in existence at the time of the-accident.</p>

<p> Divorce. Allowance for Support. Board of Prisoner in Jail. </p> <p>The provisions of court and practice act, section 1152, and General Laws, chapter 259, section 2, relative to the payment of board of prisoners in jail, have no application to a prisoner committed under an execution-for unpaid allowance for the support of a petitioner in divorce proceedings.</p>

<p> Bills of Exceptions. Accident and Mistake. </p> <p>Where a bill of exceptions was retained by a justice of the Superior Court without approval until more than twenty days had elapsed, and no application was made within thirty days to establish it in the Supreme Court, a petition, under the provisions of court and practice act, section 473, to have the bill of exceptions allowed, on the ground that “ defendant acted in good faith in supposing, according to the practice, that the justice in retaining the transcript and bill of exceptions for examination was not intending to act adversely to the interests of the defendant,” does not show that the omission to apply to the Supreme Court was occasioned by accident, mistake, or unforeseen cause, and the petition will be denied.</p>

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

<p>Trespass vi et armis.</p>

<p>(1) Master and servant. Negligence. Elevators.</p> <p>Pub. Laws cap. 973, passed April 3, 1902, providing that if a defendant fails to equip an elevator with some suitable appliance which shall give automatically at all times, on every floor of a building which it approaches, a distinct audible warning signal that the elevator is in motion, it shall be no defence that the person injured had knowledge that the elevator was being operated contrary to the provisions of the statute, or that he continued to ride in the elevator with said knowledge, does not apply where the proximate cause of the injury was the negligence of the plaintiff in stepping into the elevator shaft without looking, the act not providing that a plaintiff might recover notwithstanding contributory negligence or want of due care.</p>

<p>(1) Master and Servant. Pleading. Due Care. IlandAools.</p> <p>Declaration against a master stated that a ladder which defendant provided was unsafe in that certain iron points at its lower ends had become dull and smooth, and that while plaintiff was standing on one of its rounds it slipped, precipitating him to the floor. The declaration contained the usual allegations of knowledge by the defendant and lack of knowledge by plaintiff, who was alleged to be in the exercise of due care: — ■</p> <p>Held, that the allegations in a declaration of the exercise of due care and lack of knowledge on part of plaintiff did not under all circumstances, forbid a demurrer.</p> <p>Held, further, following Baumler v. Narra. Brewing Co. 23 R. I. 430, that when it is apparent from the facts stated in a declaration that a plaintiff, if he had used his senses, must have known of the danger eomplained_ of, no allegations which he may incorporate in his declaration will render the declaration sustainable.</p> <p>Held, further, thataladder is to be classed with other ordinary “hancPtools,” and so a servant is chargeable equally with the master with knowledge of its obvious imperfections.</p>

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

<p>Complaint charging violation of town ordinance. Certified to Supreme Court under Court and Practice Act, sections 478 .and 479.</p>

<p>(1) Eminent domain. Railroads. Damages.</p> <p>By act of the General Assembly, permission was given defendant railroad company “to widen, construct, and use its old roadbed in the city of Providence, and to extend the same across Henderson street, through Allens’' avenue, and in the same direction until it comes to Eddy street.” The company located its railroad in Allen’s avenue and filed a plat of its location, subsequently abandoning a portion of said location, retaining a strip forty feet wide in the center of Allen’s avenue.</p> <p>Claimant owned a tract of land consisting of a large number of lots on the Allen plat extending from Allen’s avenue to the harbor line, and said Allen’s avenue was a part of said plat. At the time of the location Allen’s avenue was a public highway and the act authorizing the extension of the railroad provided: “Said railroad company shall not lay any rails in any of the streets without the permission of the city council and upon such terms and conditions as it may prescribe:”—</p> <p>Held, that the company was not entitled to occupy its location forty feet in width in Allen’s avenue to the exclusion of the public.</p> <p>The right of a railroad to cross or pass along a highway does not include the right to build permanent structures upon it or to use it for a freight yard or any exclusive purpose, but is limited to a reasonable use by crossing, passing, and repassing consistent with the earlier public right.</p> <p>(2) Railroads. Damages and Location.</p> <p>As the fee to the center of Allen’s avenue was in the claimant, and defendant company, in addition to its right to lay rails, had taken a forty-foot strip as a railroad location, such location was a taking of property for which claimant was entitled to compensation at the value of the land at the time of said location; not its value if free from the easement of the public highway, but its value subject to such easement.</p> <p>(3) Railroads. Damages from Location to Abutting Land.</p> <p>Claimant was further entitled to damages caused by the location of the railroad to his land abutting on Allen’s avenue. Where the fee of the street is in the abutting owner the measure of damages is the value of the land taken, subject to the easement for a public highway, and damages to the remainder of the tract by reason of the taking of a part for railroad purposes.</p> <p>(4) Damages to Tide-flowed Lands.</p> <p>As the title to tide-flowed lands is in the State, claimant would not be entitled to damages to such lands caused by the location of the railroad; but as the license to fill out to the harbor line is an appurtenance to the upland, it may properly be considered in arriving at the value of the upland itself and determining its value at the time of the location.</p> <p>(5) General and Special Benefits in Assessment of Damages.</p> <p>While benefits shared in general by the community along the line of a railroad can not be deducted from the damages, yet a benefit may be special and peculiar to a tract of land of which a part is taken, although it accrues to a number of tracts in the vicinity where all the tracts occupy a peculiar situation with reference to the improvement by reason of which the benefit attaches. Under this rule special benefits shown to have accrued to claimant’s land from the location of the railroad should be deducted from the special damages in arriving at the damage to the land not taken.</p> <p><6) Rule for Assessment of Damages for Land Taken and Damages or Benefits to Remainder of Tract.</p> <p>'The charter of the New York, Providence and Boston R. R. Co., under which the location was made, contains no express provisions as to the method by which the damages shall be estimated, leaving the question to be decided solely under the constitution, article I, section 16, as to compensation for private property taken for public uses.</p> <p>The measure of damages, therefore, in such a ease, is the value of the land taken, and such special damage, if any, as was caused to the remainder by the location of the railroad.</p> <p>For the land taken the owner must receive the just compensation provided by the constitution, that is, the value of the land taken, and the fact of damage to the remainder of the tract is to be established, like any other fact, by evidence. The special damages are to be shown and also the ■special benefits, and if the damages exceed the benefits, then the excess is the amount of damage to such remainder, and is to be added to the value of the land taken to ascertain the whole damage. If, however, the special benefits to said remainder equal or exceed the special damages to the same, then the remainder has not been damaged.</p>

<p>Debt, on Bond.</p>

<p>(1) Wills. Repugnancy. Particular and General Intent.</p> <p>Testamentary device as follows: “All the rest, residue, and remainder of my estate, either real, personal, or mixed, I give to my dear husband, he to have the full use and benefit thereof unconditionally. After him, should any remain, I give the same to my sister A. one-half and to my sisters B. and C. the balance share and share alike”:—</p> <p>Held, that the first sentence of the clause gave to the husband of testatrix the residue of the estate in fee simple absolute, and that the second sentence of the clause was void for repugnancy.</p>

<p>(1) Common Carrier. Fellow-Servants. Passengers.</p> <p>Where a servant earned fourteen transportation tickets as well as eight dollars as his weekly wages and boarded a car of defendant after his day’s work was fully completed, these facts made him a passenger, and not a fellow-servant of defendant’s with those causing his injury.</p> <p>(2) Common Carriers. Negligence.</p> <p>Semble: evidence of an inefficient brake coupled with evidence that the motorman made no attempt to have it remedied or to obtain another car although he passed the car bam several times after he discovered the defective condition of the brake, indicates negligence on the part of the motorman available to a passenger on the car subsequently suffering injury from such defect.</p>

<p>(1) Bill of Exceptions. Transcript of Evidence.</p> <p>A bill of exceptions filed in the Superior Court without a transcript of evidence is properly disallowed where the exceptions are to the exclusion of evidence offered at the trial and to the allowance by the court of a charge for compensation.</p>

<p>Petition to establish a bill of exceptions.</p>

<p>Assumpsit to recover compensation as collector of taxes.</p>

<p>(1) Undisclosed Principal. Severable Contracts.</p> <p>Plaintiff through his broker contracted with defendant for delivery of certain carloads of salmon. The broker, having orders from others, “lumped” the orders and made one contract with defendant. Defendant agreed with broker to ship various carload lots to the customers of the broker, and draw direct for such shipments.</p> <p>Held, that the arrangements relating to the shipping of certain cars to plaintiff and the drafts drawn direct upon plaintiff did not constitute a novation, or substitution of the original contract, but were simply for the accommodation of the parties; and plaintiff not being the sole party in interest, and the contract not being severable, plaintiff could not sue defendant as an undisclosed principal.</p>

<p>(1) Voluntary Trusts.</p> <p>G. P., the father of W. P., on the latter attaining his majority, wrote the son that he had transferred certain property to him, and “your mother’s stock in the A. Co. I have retained in such manner that the income goes to me, but so that neither your creditors can get it if you meet with disaster, nor can my creditors touch it if I am unsuccessful.”</p> <p>The same day the father transferred 110 shares of the stock of the A. Co., as follows: “G. P. Atty for W. P.” The certificate was never delivered to the son, and he knew nothing of it until after the death of his father. The latter voted on the stock and collected and used the dividends, and subsequently cancelled the certificate, and a new one was issued, without consideration, to a relative, and again retransferred by the latter to him and remained in his possession in that form at his death.</p> <p>Prior to the death of the father he wrote the son, disclaiming that he held any funds of any kind belonging to the son:—</p> <p>Held, that no valid trust was created in favor of the son.</p>

<p>(1) Banks. Garnishment.</p> <p>Where a bank paid out plaintiff's money, as garnishee, under execution against a judgment debtor other than plaintiff, but bearing the same name, it is liable to plaintiff to the amount of such payment.</p>

<p>(1) Pleading and Practice. Set-Off. Statement of Demands.</p> <p>Court and practice act, sections 293 to 295, relating to set-off, while it expressly exonerates a defendant from filing a formal plea in set-off, by permitting the filing of the statement of demands in set-off with the general issue, peremptorily requires that the statement of demands be filed with the plea; hence where a defendant filed in addition to the general issue a plea in set-off in the usual printed form with a count on book account and the common counts, but without a statement of his demands, he is not entitled to maintain the plea in set-off.</p> <p>(2) Pleading and Practice. Set-Off. Filing Additional Pleas.</p> <p>Where a defendant had neglected to file a statement of demands with a plea in set-off, a motion for leave to file such statement during the progress of the trial is properly denied. The liberality of amendment under our statutes does not extend to the right to file new pleas and raise new issues while a case is on trial.</p>

<p>(1) Pleading and Practice. Demurrers. Final Decision. Amendment.</p> <p>A decision of the-Superior Court sustaining a substantial demurrer is final, and judgment follows in due time by operation of law unless the pleadings are allowed to be amended, in the discretion of the court, under court and practice act, section 261, or exception is taken and the prescribed steps taken under a bill of exceptions, and the Superior Court may exercise the same power to permit amendment after such exception has been overruled by the Supreme Court.</p> <p>(2) Pleading and Practice. Amendment. Exceptions.</p> <p>Exception will not lie to the decision of the Superior Court granting or refusing a motion to amend pleadings.</p>

<p>(1) Unrecorded Conveyance. Notice. Letters.</p> <p>There is no indisputable presumption that a letter which the law does not require to be sent is read by the receiver to whom it is delivered. The question is one of fact to be determined on all the evidence relating to it.</p> <p>A claimant under an -unrecorded conveyance- assumes the task of actually bringing the information to the apprehension of the person to be affected by it.</p> <p>Where the question is whether plaintiff in ejectment had notice of an unrecorded lease, by means of a letter sent to him containing a copy of the lease, and plaintiff admitted receiving a letter which he could not identify as coming from defendant and which he did not read, as he could not read English, it is properly left to the jury to determine whether, if the letter was received by plaintiff, he acquired actual knowledge of its contents.</p>

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

<p>Case stated for opinion of court.</p>

<p>(1) Covenants of Warranty against Incumbrances. Curbstones.</p> <p>A declaration in an action of covenant for breach of warranty against incum-brances in which plaintiff seeks to recover as damages the amount alleged to have been paid as the cost of certain curbstones set adjoining premises conveyed to plaintiff by defendant, to prevent estate of plaintiff being sold therefor, which contains no averment of any demand upon the abutting owner by the surveyor of highways under the provisions of Gen. Laws cap. 72, § 31, before the costs were certified to the tax assessors and included in the tax, is bad, but may be cured by amendment.</p>

<p>Petition seeking determination of questions under a trust deed and will.</p>

<p>(1) Bridges. Duty of Adjoining Towns to Repair Connecting Bridge.</p> <p>The duty of a town to keep in repair bridges on the dividing line between it and other towns, under the provisions of Gen. Laws cap. 72, § 19, is limited to the part of such bridges within and next adjoining the line of such town, and in a civil action to recover damages for injuries received on a defective bridge it is a material part of the plaintiff’s case to prove in which town the accident occurred.</p> <p>(2) Joining Parlies Defendant. Bridges.</p> <p>While under the provisions of court and practice act, section 240, a plaintiff may join two towns as defendants, in an action to recover damages for injuries received on a defective bridge connecting the towns, proof must nevertheless be made as to the location of the defect complained of in order to recover.</p>

<p>(1) Mechanic!s Lien. Final Decrees. Appeal.</p> <p>A decree of the Superior Court declaring the right of a petitioner to a lien under Gen. Laws cap. 206, is a final adjudication as to the right of the petitioner and subject to appeal under the provisions of section 328 of the court and practice act.</p>

<p>(1) Bills and Notes. Accommodation Endorsers. Joint Makers.</p> <p>Promissory note in the following form: “Three months after date I promise to pay to the order of B. eighteen hundred dollars.” Signed by “C.” Upon the back of the note were the signatures of “B.,” “D.,” and “E.” The money was advanced to the maker by plaintiff, all the names being affixed before delivery for the accommodation of the maker, plaintiff knowing the names were those of accommodation endorsers:—</p> <p>Held, that “B.,” “D.,” and “E.” by endorsing the note assumed the obligation of successive endorsers to become effectual when it came into the hands of a holder for value and were entitled to notice of dishonor of the note under sections 97 and 111 of article VIII, chapter 674, of the Public Laws and were not liable as joint makers, the latter doctrine having no validity since the passage of section 71 of the negotiable instruments act.</p> <p>(2) Bills and Notes. Discharge of Parties Secondarily Liable.</p> <p>After action brought against the maker and endorsers of a promissory note, an agreement was entered into, between plaintiff and the maker, by which plaintiff agreed on certain conditions not to press the suit:—</p> <p>Held, that the agreement was a postponement of plaintiff’s right to enforce the note within the meaning of subsection 6 of section 128 of the negotiable instruments act, and discharged the endorsers.</p>

<p>(1) Physicians and Surgeons. Implied Contracts. Custom.</p> <p>A person, not in employ of defendant, being injured on its premises, the telephone of defendant was used for the purpose of summoning plaintiff a physician, who rendered the necessary first aid to the injured person, and an ambulance was called and the patient removed. Plaintiff received notice from defendant, within a few days at least, that patient was not their employee. There was evidence of a custom on part of defendant to call physicians, plaintiff among them, to attend its injured employees and to permit the physician to finish his treatment at expense of defendant. Plaintiff treated the patient, who was seriously injured, but remained silent on the subject, although previously instructed by defendant in another case, to render monthly statements of his services rendered in its behalf, the action in the case at bar being commenced more than six years after the time when defendant notified him patient was not in its employ: — •</p> <p>Held, that after the departure of the injured man from the premises of defendant it was the duty of plaintiff, if he intended to treat him at expense of defendant, to inform it of such fact, that such meeting of minds might result as would constitute a contract.</p> <p>Held, further, that there was no evidence of an express contract, nor evidence from which a contract might be implied.</p>

<p>(1) Services Performed in Expectation of Marriage. Implied Contracts.</p> <p>A contract to pay for services performed by plaintiff will not be implied where the evidence shows that such services were rendered in lifetime of defendant’s intestate, without expectation of compensation, but only in expectation of an intended marriage between the parties, and where intestate died without having prior to decease announced his intention of not fulfilling his promise of marriage.</p>

<p>(1) Charitable Trusts. Wills.</p> <p>A testatrix by will expressed her desire to devote the greater portion of her estate to charitable purposes, and vested the legal title in certain trustees, giving general directions as to the care of the trust property, designating the name for the fund, and further providing, “and whatever balance there shall remain of said annual income unexpended, my said Trustees are hereby authorized and directed to give to such charitable purposes as they and their successors in office shall judge will do the most real good, giving preference to several different objects, instead of a few”:</p> <p>Held, that the intention to create a charitable trust was clear, and the gift was sufficiently definite for judicial cognizance.</p> <p>Held, further, that, the will providing for the nomination and appointment by the trustees of their successors in office, such nominations might be made by them, subject to the final action of the court having general equity jurisdiction.</p>

<p>(1) Docket Entry of Decision. Power of Court to Vacate.</p> <p>In a probate appeal beard by the Superior Court without a jury, decision was rendered for the appellant, and the clerk, by direction of the justice, made the following entry: “Nov. 19th, 1906. Heard, and, decision for appellant. Exceptions.”</p> <p>November 22 appellee gave notice of intention to prosecute a bill of exceptions, and December 8th was fixed by the court for filing said bill. , December. 3d the bill was filed. No action was taken within the statutory period, either by the justice or appellee thereafter, but February 12, 1907, the justice caused the following entry to be made by the clerk: “That the appellee was guilty of unfaithful administration as stated in said complaint. — Appellee’s exception noted. Decision as of February 12, 1907, and docket entry of November 19, 1906, vacated”:—</p> <p>Held, that, under the provisions of court and practice act, section 303, providing for record proof of a decision, there was full and complete record evidence of the decision of the court by the docket entry of November 19, 1906, and the attempt to vacate it by the entry of February 12, 1907, was void, section 428 of court and practice act having no application to the case.</p>

<p>(1) Certiorari to Decree of Probate Courts.</p> <p>The writ of certioran will lie to review the action of a Probate Court.</p> <p>(2) ' Certiorari does not Die to Cure Formal Errors.</p> <p>The principle that on petition for writ of certiorari, the court will hear the case upon petition, to enable it to determine whether the error alleged affects the substantial justice of the case, has special force in reviewing the acts of a Probate Court in view of court and practice act, section 728, which provides that “ irregularity, defective notice, or want, or improper exercise of authority” affecting the validity of such acts may be supplied or corrected on notice to the parties interested.</p> <p>(3) Certiorari. Guardians ad litem. Insane.</p> <p>Where on petition for writ of certiorari, it appeared that a Probate Court having jurisdiction of the subject matter of the appointment of guardians of insane persons neglected the statutory requirement providing for the prior appointment of a guardian ad litem, before acting upon the petition, and appointed a guardian of the person and estate of such insane person, the writ will be denied.</p>

<p>(1) Covenant, against Incumbrances. Curb-stone Taxes.</p> <p>Gen. Laws cap. 48, § 3, provides that “All taxes assessed against the owner of any real estate, shall constitute a lien on such real estate in any town for the space of two years after the assessment, and if such real estate be not aliened, then until the same is collected.”</p> <p>Under the provisions of chapter 72, section 31, the costs of setting curb-stones, after certain preliminary steps, are to be “included in the next assessment of taxes for such town against such land or the owner thereof —</p> <p>Held, that such costs did not become taxes until they had been assessed, and it,was only as taxes that they were secured by a lien on real estate; and so, where such assessment was not made until after the execution and delivery of a deed of the premises in front of which the curb-stones were laid, there was no breach of the covenant against incumbrances at that time.</p>

<p>(1) Common Carriers. Duty to Passenger when Car stopped by Snow.</p> <p>A carrier is not guilty of negligence in failing to further operate its car after it has been stopped by the snow, having exhausted all its power in the effort to move the car from time to time against the accumulation of the snow, and, where there is no evidence to show that the removal of a passenger from the car could have been safely made at any time before it was actually done, the carrier having carried the passenger as far as it could by the exercise of its power and the appliances at its disposal, has done all that could be required to carry out its legal duty to such passenger.</p>

<p>(1) Certiorari to Probate Courts. Laches.</p> <p>As the issuing of the writ of certiorari is not a matter of strict right, but is discretionary with the court, where the petitioner had allowed a decree of a Probate Court appointing a guardian of his person and estate to stand without attack for eight and a half years, permitting the guardian to manage the estate, and moving to quash the decree only after the death of the guardian, no harm appearing to petitioner through such appointment, such conduct constitutes sufficient laches to justify the refusal of the writ.</p>

<p>(1) Mortgages. Machinery. Appurtenances to Machines.</p> <p>The word “machinery” in a mortgage deed covers copper rolls constructed to be used in, and appurtenances necessary to the working of, printing machines included in the mortgage.</p> <p>(2) Bonds. Bona fide Holder.</p> <p>A trust mortgage set out that at a meeting of the directors of the mortgagor the president and treasurer were authorized to negotiate and deliver certain mortgage coupon bonds of a certain tenor, and were further authorized to execute and deliver, to secure the same, a mortgage trust deed upon the property of the mortgagor, and that the stockholders of the mortgagor thereafter ratified and confirmed the acts of such officers and authorized said officers to negotiate and deliver such bonds and mortgage, and contained substantially the form of such bond which itself stated that it was executed and delivered in pursuance of votes of the stockholders and directors of the mortgagor, and referred to the terms of the mortgage, and the bonds contained the further provision that they should not be valid unless the certificate endorsed thereon should be signed by the trustee.</p> <p>Claimant was a 5ona fide purchaser of certain of the bonds from the treasurer of mortgagor, to whom the bonds had been delivered by the trustee in accordance with the provisions of article 18 of the mortgage, “All the bonds are upon their due execution and on the delivery to-the trustee of this instrument to be certified and delivered by the trustee forthwith to or on the written order of the treasurer of the company ” :■ — ■</p> <p>Held, that, the claimant having obtained the bonds from the proper custodian, and being certified to by the trustee, they were prima facie valid.</p> <p>Held, further, that the proper officers having executed the bonds and taken them to the trustee for certification, which had in turn delivered them to the treasurer under the terms of the mortgage, if any loss had occurred through improper negotiation thereafter by the latter, it should fall upon the party who had allowed them to be issued rather than upon the innocent purchaser.</p> <p>Held, further, that the sale of the bonds was authorized by the mortgagor.</p> <p>(3) Bonds. Security taken as affecting Bights of Creditor.</p> <p>Where one who was the owner of certain bonds entered into an agreement with the person who negotiated them, by which on the payment of certain sums by the latter, the former agreed to take no action against him on account of the sale of such bonds, which agreement for payment was not kept, he is not precluded, by reason thereof, from thereafter pursuing his remedy under the bonds.</p>

<p>(1) Master and Servant. Negligence. Running-Boards of Cars.</p> <p>Intestate entered employ of defendant the day before he was killed, and made three trips, with an experienced conductor, that day, and the next day took full charge of a car.</p> <p>On the trip when he was killed the car was crowded, and passengers were standing on the running-board, which was down on the side next to the side walk, where the track was not far from a series of electric-light poles, and up on the side away from the sidewalk, in accordance with the rules of defendant.</p> <p>Intestate on his way collecting fares, had to pass outside of a man standing on. the running-board, and in so doing his head struck an electric light pole located beside the track, and he was knocked to the ground, and died shortly afterward.</p> <p>The pole in question was somewhat nearer the track than others, and had b^en in that position all that summer, and probably for a number of years:—</p> <p>Held, that, while a conductor would be justified, in the absence of special warning or actual knowledge, in assuming that he could safely stand upon and pass along the running-board without danger in the ordinary way, he would not be justified in assuming that he could at any time or place swing out to any distance he might find convenient for the purpose of passing passengers standing on the running-board.</p> <p>(2) Presumptions of Due Care. Evidence.</p> <p>Held, further, that the presumption of due care, and of ignorance of any extraordinary risk, which it is sometimes held exists in cases where no one saw the accident causing the death, and where there is no testimony to show any of the facts and circumstances surrounding the accident, as well as the presumption that deceased would not voluntarily expose himself to a known danger, contended for by plaintiff, are mere presumptions of law, and have no weight, and do not apply to cases where there is direct evidence upon the question; and the fact that the evidence is that of an employee of defendant does not show sufficient interest to warrant the jury in disregarding it.</p> <p>(3) Common Carriers. Speed of Car controlled by Conductor.</p> <p>Held, further, that the element of speed of the car was not properly one to be considered, except as bearing on the contributory negligence of intestate, since the speed was at all times subject to the control of the conductor.</p> <p>(4) Uncontradicted Evidence, Weight of.</p> <p>Field, further, that request of defendant, to charge that if the evidence of a witness for the defence had not been refuted by any other testimony, nor impeached, nor his veracity questioned, the jury must accept his testimony as controlling in the matters concerning which he testified, should have been granted.</p> <p>Held, further, that it appeared that*the accident was due, not solely to the proximity of the pole to the car, but to the act of intestate in voluntarily placing himself in a position of more than ordinary danger.</p>

<p>(1) Certiorari. Political Ward Committees.</p> <p>Where the board of canvassers and registration found that a political caucus for the election of members of a political ward committee was illegal and void, and no person was legally elected thereat to any office, certiorari will not lie to review such finding, quash such decision, and determine the election of the candidates thereat, the board having full, if not final, jurisdiction of the question, and their proceedings being regular in form.</p> <p>Whether certiorari in any case would lie to try the title to a public office, quaere.</p>

<p>(1) Bills and Notes. Renewals. Banks. Ultra Vires.</p> <p>The X. National Bank held two notes of the Y. Company, for $13,000 and $17,000. The bank was placed in voluntary liquidation, and after the vote for liquidation was passed the stockholders sold the whole capital stock to^ the Z. Trust Company, and the new and sole stockholder took over the deposit accounts, but did not take over the two notes in question. Thereafter the bank did not make new loans or discount paper, except renewals.</p> <p>The business of the trust company and the winding up of the bank were conducted in the rooms and by the officers of the former. At the maturity of the notes, respectively, the treasurer of the Y. Company, who was also> president of the bank, informed the cashier of the bank, who was also manager of the trust company, that he wished to renew the notes. This was done by the treasurer of the Y. Company carrying to the bank the new notes and a check drawn by the Y. Company on the trust company for the amount of the note in each ease; he received back the old note stamped “Paid” and on the cash book of the bank cash was charged note of the Y. Company paid $17,000 (in the first case) interest received, discount, note Y. Company $288.07, and cash was credited with note of Y. Co., discounted $17,000.</p> <p>■On the books of the trust company the check was deposited to the credit of the bank and charged against the account of the Y.< Company. At same time a debit slip for $16,711-93, the difference between face of new note and the discount, was lodged with the trust company, and the amount of this slip credited to the deposit account of the Y. Company and charged against' the deposit account of the bank. The result of this was to decrease the deposit account of the Y. Company and increase the deposit account of the bank by the sum of the discount:—</p> <p>.Held, that the old notes were equitably the property of the trust company, although not taken over by it at the time, and the making of the new loan to the Y. Company was the act of the trust company; but even if the act of the bank, it was valid as an exercise of power assented to by its sole stockholder.</p> <p>Held, further, following Merrimcm v. Social Mfg. Co., 12 B. I. 175, that the transaction was a new loan, and the new notes were not renewals of the former.</p>

<p>(1) Mandamus. Contracts.</p> <p>A town council charged with the reconstruction of the heating apparatus of the town hall made to the town meeting a recommendation that the work be done, and that the bid of petitioner be accepted. The town meeting passed a resolution appropriating a sum of money “for the reconstruction and renewal of the heating apparatus in the town hall building. Said sum to be expended under the supervision of the t9wn council, as recommended in their report of to-day,” and further authorized the town treasurer'to hire a sufficient sum to meet the expenditure. On mandamus to compel the execution of the contract in writing:—</p> <p>Held, that this did not constitute an acceptance of the bid of petitioner.</p> <p>Held, further, that mandamus will not lie to compel a party to complete a contract, and that petitioner did not show that the act sought to be enforced was the plain duty of respondent without discretion.</p> <p>Semble: that, if the facts were sufficient to establish a valid contract, then in such case petitioner had an adequate remedy and the writ would not issue.</p>

<p>Bill in Equity for construction of will.</p>

<p>(1) Evidence. Refreshing Recollection. Search Warrants.</p> <p>A search warrant and the officer’s return thereon are not only not the best evidence, but are not even admissible in evidence against a defendant upon a criminal complaint, although the officer might have used the return as a memorandum to refresh recollection.</p> <p>(2) Intoxicating Liquors. Criminal Complaint. Evidence.</p> <p>Gen. Laws cap. 102, § 57, is an enabling statute, providing that the true date of sale need not be set forth in the complaint and that when an offence has been laid with a continuando proof of the offence in such case may be made within the times mentioned. But upon a complaint charging the unlawful keeping for sale of intoxicating liquors on a certain day without a con-tinuando, evidence may be offered as to the condition of things before and after the day charged but the evidence must be confined within reasonable limits, in the discretion of the court, subject to exception in .case of gross abuse, and testimony concerning the manner in which defendant used the premises occupied by him during the time covered by the evidence is admissible.</p> <p>(3) Illegal Sale of Intoxicating Liquors.</p> <p>Upon a complaint for illegally keeping liquors for sale, a charge of the court that to warrant a verdict of guilty the jury must find that they were kept on the premises on the day alleged in the complaint; that evidence which was admitted tending to show that defendant on previous occasions kept liquors for sale and sold them was for the purpose of enabling the jury to draw the conclusion, if they saw fit, that they were on the premises on the day in question for the purpose of sale, but that if that were the case and defendant did not so keep them on the day in question the verdict should be not guilty, correctly states the law.</p> <p>(4) Intoxicating Liquors. Registered Pharmacists. Licenses.</p> <p>Gen. Laws cap. 102, § 1, providing that no person, unless as thereinafter provided, shall keep or suffer to be kept on his premises or under his charge, for the purpose of sale, certain prohibited liquors, by its terms includes registered pharmacists. By the terms of section 23, the burden of proving that he comes within the exceptions of section 1 is placed upon the defendant. Section 52 as amended by Pub. Laws cap. 1223, of April 14, 1905, was a complete revocation of the authority previously conferred upon registered pharmacists to keep liquors for sale as such, and made a license to sell liquors a prerequisite to keeping them. So, therefore, where it appeared on a complaint for illegal sale that no such license had been obtained, defendant failed to prove that he came within the exception.</p>

<p>(1) Stockholder’s Liability. Appointment of Receiver.</p> <p>On demurrer to the declaration, it appears that the statute of Nebraska, under which the action was brought, was not enacted until after the appointment of the receiver,-and that the proceedings for the appointment of said receiver were not brought in conformity with the provisions of the statutes of Nebraska as alleged in the declaration.</p> <p>(2) Receivers. Comity.</p> <p>Whether a receiver appointed outside of this State may sue in the courts of this State is purely a matter of comity. As plaintiff did not ask the court wherein suit was brought for permission to sue, and as the Superior Court has fully considered the case upon the issues raised, the court on exceptions from decision of the Superior Court sustaining demurrers to the declaration will not consider the question at this time as to the right of the receiver to have so brought suit in this State.</p> <p>(3) Stockholders’ Liability. Notice to Stockholder.</p> <p>Cons. Nebraska, Art. XI, § 4: “In all cases of claims against corporations the exact amount justly due shall be first ascertained, and after the corporate property shall have been exhausted the original subscribers thereof shall be individually liable to the extent of their unpaid subscription and the liability for the unpaid subscription shall follow the stock ” — prescribes a time when the cause of action will accrue against the subscriber. These provisions have been held to be applicable to the liability of stockholders in banking corporations under the terms of section 7 of the same article.</p> <p>As held in Hazlett v. Woodhead et al., in 27 R. I. 506, when proceedings were instituted touching the individual liability of stockholders they'were entitled to notice of the pendency of the same, which notice should affirmatively appear in the declaration. Plaintiff by amendment set forth notice by publication to all stockholders of insolvent bank to appear on or before February 24,1902, but it also appeared from declaration that leave had been granted the receiver to bring suit against the stockholders June 27, 1898, and it did not appear that any notice had been given to stockholders of the pendency of the proceedings resulting in the j udgment of the latter date, but it appeared that upon that order the receiver had sued and recovered judgment against all stockholders resident or having property -within Nebraska:—</p> <p>Held, that the appearance of defendant by attorney in the proceedings which adjudged the bank insolvent, and in which the receiver was appointed, was before any cause of action accrued against him as a stockholder.</p> <p>Held, further, that the lack of notice to defendant of the proceedings resulting in the judgment of June 27,1898 was fatal, and the demurrer on this ground ■would be sustained.</p>

<p> Admission to tile Bar. </p> <p>Rules of practice of the supreme court, “Attorneys and Counsellors,” sec. 1, clause 2, provide that the petition of an applicant for admission to the bar shall set forth, “That not having received a classical education he has studied law three years in the office of an attorney and counsellor at law”—</p> <p>Held, that the rule demands that the study of law during ordinary business hours in a law office must be the student’s chief occupation.</p>

<p>(1) Petition for Relief.</p> <p>C. P. A. sec. 473, relative to petitions for relief to the Supreme Court is applicable to criminal as well as civil cases.</p> <p>(2) New Trial. Newly Discovered Evidence.</p> <p>A new trial will not be granted upon evidence which merely discredits a witness and does not affect the merits of the case.</p>

<p> Sufficiency of Notice to City Council of Injury from Defect in Highway. </p> <p>A notice of claim given to a city council under Gen. Laws, cap. 36, secs. 16,18, which gives an impossible date as the time of the accident is insufficient.</p> <p>The plaintiff fixed the time of the accident as November 21, 1904, and filed her claim October 26, 1904.</p>

<p>The giving of the notice of claim to a city council, under Gen. Laws cap. 36, §§ 16,18, is no part of the suit, but is a condition precedent to the right to bring suit.</p> <p>The allegation in a declaration that such notice has been given is put in issue by the general issue and must be proved to entitle a plaintiff to recover.</p>

<p>Assumpsit. Certified to Supreme Court under C. P. A., § 478.</p>

<p>(1) Defaulted, Cases. New Trial. Accident and Mistake.</p> <p>Where a motion to remove a default under § 428, C. & P. A., has been granted by the Superior Court under conditions with which defendant has not complied, the Supreme Court, under § 471, C. & P. A., can not entertain a motion for a trial. The Superior Court has concurrent jurisdiction with the Supreme Court of the matter, and, its jurisdiction having been invoked, its decision is conclusive.</p>

<p>(1) Judgments. Records. Former Judgment.</p> <p>Where the record shows a judgment upon the merits in favor of a defendant in a prior action between the same parties, and upon an identical cause of action, such judgment is a bar to a subsequent action, and, no proceedings having been taken to set aside such judgment, the court can not consider in the latter action the fact alleged by plaintiff, that the verdict was directed by the court in the former action on grounds- that did not affect the merits of the case.</p>

<p>(1) Dentistry. Criminal Complaint. Indictments.</p> <p>Gen. Laws cap. 155, § 6, as amended by Pub. Laws cap. 1457, § 1, relative to the practice of dentistry, provides that any person violating any provisions of said chapter shall be deemed guilty of a misdemeanor and shall be liable to indictment, and upon conviction shall be fined not less than fifty nor more than one hundred dollars:—</p> <p>Held, that this was a special provision within the exception of Gen. Laws cap. 288, §§ 1 and 4, the fine to be recoverable by indictment and not by complaint.</p>

<p>Indictment charging violation of Gen. Laws cap. 165.</p>

<p>(1) Bills of Exception. Waiver.</p> <p>The appearance of a party by attorney at the hearing upon the allowance of a bill of exceptions is a waiver of the omission to give notice of the filing of the bill under C. & P. A., 490, and rule 32 of the rules of the Superior Court.</p> <p>(2) Bills of Exception. Amendment.</p> <p>Section 490 of the court and practice act requires that in a bill of exceptions the party “shall state separately and clearly the exceptions relied upon”:—</p> <p>Held, that general allegations in a bill of exceptions are insufficient.</p> <p>Held, further, that, after a bill of exceptions had been docketed and the time limited by statute for the approval of the bill by the Superior 'Court or for establishing the exceptions in the Supreme Court had elapsed, amendments which for the first time created a substantial bill of exceptions would not be allowed.</p> <p>Query, if, under our practice, verbal inaccuracies or trivial errors of statement might be corrected, or if any incompleteness or error in the record as certified might be corrected by certiorari.</p>

<p>Bill of Interpleader.</p>

<p>Proceedings in Contempt, on facts fully stated in opinion.</p>

<p>(1) Specific Performance.</p> <p>At the time contract for the sale of certain land was executed the lots were subject to a recorded lease which contained a covenant giving the lessee an option to purchase the lots at a certain price. Subsequent to the making of the agreement the lessee, with knowledge of the agreement, bought the land from the lessor for a sum less than the- option price, and agreed to indemnify lessor for any loss incurred under the agreement with complainant.</p> <p>On bill for specific performance:—</p> <p>Held, that, with the agreement outstanding, it was not competent for the lessor and'lessee to vary the terms of the option.</p> <p>Held, further, that complainant had the right to insist upon a conveyance and take such title as lessor could give.</p> <p>Held, further, that, upon payment of purchase price agreed upon between complainant and lessor, to the lessee, the latter should be required to convey the premises to complainant.</p>

<p>Bill in Equity for an accounting and damages for breach of trust in foreclosing mortgage.</p>

<p>(1) Gifts Causa Mortis. Confidential Relations.</p> <p>Respondent, a ■ physician, had attended testatrix in a professional capacity until her death, which occurred at his own home, where she had been removed. He had previously entered into partnership relations with her, and had taken from her a note for $5,000 as security for the performance of her agreement. He had also acted as her agent on occasions in the transaction of her business, and, with the exception of the execution of the will, had apparently acted as her adviser.</p> <p>April 11, 1904, she executed a will, drawn by an attorney in accordance with her carefully considered instructions, for the disposal of her property. After the decease of testatrix the greater portion of her personal estate was found in possession of respondent, who claimed it as a gift from testatrix, April 30, 1904, a week'before her decease. Respondent claimed that testatrix put him in possession of the property by giving him a locked box which he subsequently found contained the securities which she had at the time of the execution of the will enumerated to her attorney, and a deed of gift dated April 19, 1904.</p> <p>The fact of delivery of the box to respondent at the time claimed by him was disputed by the evidence, of the nurse, who claimed to have seen a box, in which deceased kept papers, in the same place where respondent claimed it was when given to him, in that place after the death of testatrix, and that the keys were under the pillow on the night she died and that respondent claimed to have taken them ,to give to the administrator. This was denied by respondent.</p> <p>Held, that the gift, if made, was clearly a gift causa mortis, and therefore one requiring the clearest and most satisfactory proof, leaving no doubt or suspicion in the mind of the court concerning the essential facts.</p> <p>Held, further, that in this case, where the plan of the will was almost wholly defeated by the gift of substantially all of the personal estate of testatrix to respondent, in the absence of any evidence as to any change of relations or conditions between deceased and the beneficiaries, the change could not be satisfactorily accounted for.</p> <p>Held, further, that the gift lacked the essential proof necessary to establish it under the well-settled rule.</p>

<p>Bill in Equity, for instructions to trustees.</p>

<p>(1) Revocation of Will.</p> <p>A revocation of a prior will by a subsequent one takes effect only when the latter becomes effective, upon decease of testator; hence where a will was executed which contained the usual provision revoking prior wills, which last will was afterwards destroyed by testator:—</p> <p>Held, that the prior will should be admitted to probate as the last will of testator.</p>

<p>(1) Intoxicating Liquors. Rescission of Vote Granting License.</p> <p>A board of license commissioners has no jurisdiction to rescind a vote of a former board granting a liquor license.</p>

<p>(1) Intoxicating Liquors. Rescission of Vote Granting License.</p> <p>A board of license commissioners has no jurisdiction to rescind a vote of a former board granting a liquor license.</p>

<p>(1) Action to Recover Damages for Crime. Pleading and Practice.</p> <p>Gen. Laws cap. 233, § 16, provides that “whenever a person shall suffer any injury to his person, reputation, or estate by reason of the commission of any crime or offence, he may recover his damages for such injury either in an action of trespass or in an action of the case against the offender; but no such action shall be commenced for such injury until complaint has been made to some proper magistrate for such crime or offence and process issued thereon against the offender”:—</p> <p>Held, that, for a plaintiff to recover.damages under this statute, it was necessary for him to allege and prove that he had suffered injury in person, reputation, or estate by reason of the commission of the crime or offence, and that complaint had been made to some proper magistrate, and that process had been issued thereon before the commencement of the action; but it was not necessary to wait until criminal process had been served before bringing the civil suit.</p> <p>Held, further, that it was not necessary for plaintiff to allege the commission of the crime which was the basis of the claim for damages with the technical accuracy required in the criminal complaint or indictment for tíie same, but it must be described sufficiently for identification.</p> <p>(2) Jurisdiction of Offence.</p> <p>Where the crime for which plaintiff brought a civil action under the statute to recover damages was alleged to have been committed in the town of Johnston, it sufficiently appears to have been within the jurisdiction of • the District Court of the Eighth Judicial District, so that the criminal complaint was properly made to the justice of that court.</p> <p>(3) Larceny. Embezzlement. Statute of Limitations.</p> <p>Gen. Laws cap. 285, § 33, provides that no person shall be convicted of any offence, with certain exceptions, of which larceny is one, unless indictment be found within three years.</p> <p>Gen. Laws cap. 279, § 16, provides that a person embezzling money shall be deemed guilty of larceny: — •</p> <p>Held, that an action to recover damages for an embezzlement was not barred because complaint was not made within the three years.</p>

<p>(1) Jurisdiction of Superior Court. Damages laid in writ.</p> <p>Under the provisions of the statutes as at present enacted, the debt or damages laid in the writ is the test of the jurisdiction of the Superior Court, instead of the value of the matter in controversy.</p>

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

<p>(1) Trusts. Power of Trustees to Change Investments.</p> <p>Testamentary provision, as follows: “As money is paid into the hands of my executors, trustees or managers of my estate, I direct that it shall be invested in good dividend paying stocks and not in real estate.”</p> <p>The will was probated prior to the passage of Gen. Laws of 1896, cap. 208, § 12, relative to the power of trustees regarding investments: — ■</p> <p>Held, that the provision gave no express power to the trustees to sell, re-invest, or change the investment of personal property, neither could the court find any implied power either in this provision or growing out of other provisions of the will.</p> <p>Held, further, that, under provisions of C. & P. A., § 1145, the Superior Court might grant leave to sell or exchange any trust estate, real or personal, and it was the right and duty of the trustees to so apply if the interest of the trust estate required it.</p>

<p>(1) Restoring Name to Voting-hist. Costs.</p> <p>On a petition brought under Pub. Laws cap. 583, as amended, to restore name of petitioner to voting-list, while G. P. A., § 449, is sufficiently broad to warrant taxing the costs in favor of the prevailing party, yet, as it appears that the error of respondents was one of judgment while acting in a quasi judicial capacity, costs should not be imposed.</p>

<p>(1) Intoxicating Liquors. In Computing Area within 200 Feet, Boundary Lines of State Not Regarded.</p> <p>Pub. Laws cap. 1355, § 2, provides: “No license shall be granted to authorize the sale of any such liquors, at any building or place where the owners of the greater part of the land within 200 feet of such building or place shall file their objection to the granting of such license:—</p> <p>Held, that there was no limitation of the prescribed area to land within this State, but that the whole area, irrespective of the boundary line of the State, would be included.</p>

<p>Probate Appeal.</p>

<p>(1) Statute of Frauds.</p> <p>Upon a bill in equity to enforce the specific performance of a verbal agreement,, where there was no evidence in writing upon the issue, and no proof of part performance or of any other circumstances which would take the case out of the operation of the statute of frauds, the defendant, both denying the. contract and relying upon the bar of the statute, is entitled to the benefit, of its provisions.</p>

<p>(1) Probate Law. Disallowing Claims.</p> <p>C. & P. A., § 887, makes the failure to disallow a claim filed against the estate of a decedent an allowance of the same, and under the provisions of section 1027 (2), in a suit on the bond, a failure to_ disallow must be shown, and not an allowance.</p> <p>i(2) Probate Law. Unfaithful Administration.</p> <p>C. & P. A.,. § 886, provides that within thirty days after the expiration of six months from the first publication of the notice of qualification of the personal representative, and at any time thereafter before payment, upon ■evidence discovered after the said period the executor or administrator ■shall file a statement disallowing such of the claims filed against the estate of a decedent as he intends to contest:—</p> <p>Held, that, after a petition brought to adjudge him guilty of unfaithful ad- . ministration in not paying a claim which he had not disallowed, an administrator could not escape liability unless he could at least show that he had some definite prospect of being able to procure further testimony to warrant the court in excusing him from paying it, and he could not take advantage at that time of a disallowance made after the petition was brought, but upon the same evidence which he possessed within the statutory period for disallowance.</p> <p>Held, further, that the administrator was guilty of unfaithful administration in not disallowing the claim within the time specified, and in not paying it within a reasonable time after the elapse of the period provided by statute for paying it, without showing any necessity as to the assets requiring further time.</p>

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

<p>(1) Taxes. Time of Assessment. Time of Rendering Account.</p> <p>Gen. Laws cap. 46, § 6, provides: “Before assessing any tax, the assessors, shall post up printed notices of the time and place of their meeting in three public places in the town for three weeks next preceding the time of such meeting, and advertise in some newspaper published in the town, for the-same space of time. Such notices shall require every person and body ■> corporate liable to taxation to bring in to the assessors a true and exact account of all his ratable estate describing and specifying the value of every parcel of bis real and personal estate at such time as they may prescribe.”</p> <p>The electors of the town of Warwick, November 17,1903, ordered a tax to be-assessed on the 31st day of December, 1903. The assessors gave notice requiring all persons liable to taxation to bring in their accounts, at sessions-of the board held at various dates between December 14 and December 19, 1903, and stated that for the purpose of assessing such tax the assessors; would meet December 31st, 1903, at 4 o’clock P. M.:—</p> <p>Held, that the electors are authorized not only to levy a tax, but to order the time when it shall be assessed and paid; and the assessors are required to assess and apportion the same at the time ordered by the town, under Gen. Laws cap. 46, §§ 1 and 4.</p> <p>Held, further, that this time was fixed by the town as December 31, 1903, necessarily implying that the ownership and valuation on that date should constitute the only true basis for the assessment.</p> <p>Held, further, that, as no taxpayer could render on oath a statement on, or before December 19, of the property which he had on December 31, no opportunity was offered any taxpayer to be heard thereon.</p> <p>Held, further, that the' time for rendering an account must follow the day and hour established for the valuation and ownership of the ratable estate of the taxpayer, in order that he may be able to render a true and exact account thereof, as required by statute.</p> <p>(2) Description of Property in Assessment Boll.</p> <p> </p> <p>Held, that the object of the description is not only to inform the taxpayer what property is taxed as his, but also to inform the public, if sold for nonpayment of taxes, just what is liable for the tax and what is being conveyed for the non-payment of it.</p> <p>Held, further, that the words, letters, and figures in the expression “N. E. part lot 2, on A. K. Barnes plat 1/2 6 ” were insufficient.</p> <p>Held, further, that the expression “pipes in street 60,000” was too indefinite.</p> <p>(3) Validating Assessment. Misdescription. Defects in Description.</p> <p>Pub. Laws, cap. 920, § 4, provides: “No defect in description or mistake in valuation shall be taken advantage of by any taxpayer, unless he shall have brought in to the assessors a true and exact account of all his ra.table estate, describing and specifying the value of every parcel of his real and personal estate at such times as they may prescribe for the assessing of the tax.”</p> <p>Held, that the statute did not cover a wrong description in the sense of precluding a taxpayer from contesting an assessment for a tax on land not owned by him, and while the words “a defect in description” would include an imperfect statement of the area, boundaries, etc., of a taxpayer’s property, it would not include a misdescription.</p> <p>Held, further, that, as the time prescribed for the making of the return was one which the assessors were not authorized to prescribe, a defendant could not be said to have failed to bring in his account if he could not do so because of the failure of the assessors to give valid and legal notice.</p>

<p>(1) Arrest Without Warrant. Justification.</p> <p>When an officer makes an arrest without warrant, it is his duty to take the person arrested, without unnecessary delay, before a magistrate. To detain him in custody for any other purpose is illegal, and, even if it were competent for the arrested person to enter into an agreement with the officer to release any claim for damages on account of a failure to make complaint (which doctrine has never been recognized in this State), no such transaction can be inferred where the arrested person, after being detained at the station, is, by arrangement with his father, released in the custody of the latter' to appear when wanted, and no further proceedings were ever taken.</p> <p>(2) Bills of Exception. Writ of Error.</p> <p>After verdict for defendants, on petition of plaintiff for new trial, same was granted by the Superior Court. Defendants thereupon filed a bill of exceptions, and plaintiff also filed a bill subject to the decision of the court upon defendant’s bill:</p> <p>Held, that, under our present practice, the bill of exceptions has practically superseded the writ of error, as by it the whole record can be brought before the court for examination; and where the court, upon consideration of the record, finds that the verdict was founded upon such error of law as to be decisive of the cause, and that upon the pleadings and evidence verdict should have been for the plaintiff rather than, as found, for the defendants, the court, under the provisions of C. P. A. § 495, will order defendants to show cause why such entry of judgment should not be made.</p>

<p>(1) 'Trusts. Life Estates.</p> <p>Under a trust deed creating a series of life estates to take effect upon death of settlor for the benefit of R. for life, and after his death “for such children' of R. now living, as are then living, for and during the term of their natural lives, etc.,” the provision applies only to children of R., living at the date of the instrument who should survive.</p> <p>(2) Trusts. Rules against Perpetuities.</p> <p>In a trust deed creating a series of life estates to take effect upon death of settlor for the benefit of R. for life, and after his death “for the children of R. for life,” provisions that in case of forfeiture the trustee may notwithstanding extend the provisions of the trust for the benefit of the children or descendants of R., during the remainder of their lives, are void, as leading to perpetuity.</p> <p>(3) Trust Deeds. Discretion in Trustee.</p> <p>Where a trust deed leaves the times, amounts, and method of payment of income to the discretion of the trustee, it is subject to a reasonable interpretation in view of the nature and amount of the income, the time when it becomes available, and the circumstances of the beneficiaries, etc., subject to the control of the court in case of unreasonable detention.</p> <p>(4) Wills. Trusts. Remainders.</p> <p>Testator by will devised to T. one undivided quarter part of his estate in trust for his son R. for life, with power to pay over both income and any part of the principal in the discretion of the trustee, and upon the death of R. to pay to the children of R. their proportionate part of said estate in such amounts and at such times as the trustee deemed suitable.</p> <p>He further devised to his three other children, each “one undivided quarter part of the said remainder of my estate.”</p> <p>Testator thereafter by trust deed conveyed all his property excepting wearing apparel and furniture, the trust to continue in force after his death during the life of R. as to the same portion of the trust estate that R. would have inherited if settlor had died intestate, and after death of R. for his" children during their natural lives :• — ■</p> <p>Held, that the will operated to dispose of the trust fund subject to the life estates, together with any other property of testator, which became subject to his will at his death and which was not included in the trust fund.</p> <p>Held, further, that the word “remainder” was not used in its technical sense, but as referring to all his remaining estate after the payment of debts, etc., thus giving the remaining three-fourths of his estate in equal shares to his three other children.</p> <p>(5) Termination of Trust.</p> <p>A court of equity will decree the termination of a trust where there is no good reason for its further continuance.</p>

<p>(1) Filling of Vacancy by the Governor. Railroad Commissioner.</p> <p>In case of a vacancy by death occurring in the office of railroad commissioner while the senate is in session, the governor has not the power, with the advice and consent of the senate, either by statute or under the constitution, ' article VII, section 5, to fill said vacancy, neither has the senate such power after the nomination by the governor has remained on the table for more than three days.</p> <p>Pub. Laws cap. 809, §§62 and 63, passed at the January session, 1901, respecting the election of officers by the senate, is constitutional.</p> <p>The offices affected by this statute are not offices created by the constitution or specifically mentioned therein, but they are offices which have been created from time to time by the General Assembly.</p> <p>The power of selection of officers resides originally in the people, who may provide by constitution how the power shall be exercised or they may leave to the legislature to provide by law for the selection of such officers by such instrumentality, or in such manner, as they decide. This power of appointment or selection is a function of either the executive, legislative, or judicial branch only when made so by law, so that the power of the senate to elect officers can not be denied on the ground that such power is an executive function.</p> <p>Cons. R. I. article XI of amendments, by omitting the general elective power conferred upon the grand committee by Cons. R. I. article VIII, § 3, and by providing for the election by the grand committee of certain specified State officers in certain contingencies, intended to place the two houses separately and the grand committee upon the same footing with respect to the capacity to elect officers not specially designated to be chosen by either.</p> <p>Article VII, § 1 of the amendments to the constitution, provides for the qualification of electors and that they “shall have a right to vote in the election of all civil officers and on all questions in all legally organized town or ward meetings.”</p> <p>The charter of the city of Woonsocket provides that the city council shall elect members of the school committee: — ■</p> <p>Held, that the constitution gave to the electors the right to vote for all officers who are to be elected in town or ward meetings by the people under the constitution or by law.</p> <p>Held, further, that the course of legislation and practice of election from the adoption of the constitution has been both a contemporaneous and continuous interpretation that the right of the electors was to vote for all officers who are to be elected by the people, but not that they shall have such right in the case of officers whose election under the law is not to be made by the people.</p>