Volume 29 — Rhode Island Reports

<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>Cases under the common law and the ecclesiastical rule as to the revocation and revival of wills collected and discussed, and opinion in Bates v. Hacking, 28 R. I. 523, affirmed.</p>

<p>(1) Intoxicating Liquors. In computing area within 200 feet, boundary lines of State not regarded.</p>

<p>(1) Master and Servant. Assumed Bisks.</p> <p>While the elements which combined to render a derrick of faulty construction and inadequate equipment were visible, the court can not impute to an ordinary workman sufficient knowledge and appreciation of the capabilities of the structure, and its liability to cause damage to persons engaged in its use, to hold that he assumed the risk.</p>

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

<p>(1) Measure of Damages for 'Refusal to Admit Ticket Holder to Place of Amusement.</p> <p>The proprietor of a place of public entertainment is under no implied obligation to serve the public. By the sale of a ticket he creates contractual relations with the holder of it, and whatever duties grow out of those relations he is bound to •perform, or respond in damages for breach of contract. No analogy can be drawn between such place of entertainment and a corporation affected with a public duty. ,</p> <p>Where plaintiff who had purchased a ticket of admission to defendant’s dance hall was refused admission on the ground that he was in uniform, and was tendered the price of the ticket, on action brought by-him:—</p> <p>Held, that the damages must be confined to the actual pecuniary loss, and could not be extended to include mental suffering.</p> <p>Cases considered and discussed by the court.</p>

<p>(1) Bill of Exceptions lies only after Verdict or Decision on Merits of the Case.</p> <p>A bill of exceptions will not lie upon the overruling of a demurrer to a declaration where there are still issues left to be determined by the pleadings.</p>

<p>(1) Verdicts. Test of Validity.</p> <p>Verdicts are to receive a reasonable construction and such as will carry out the intention of the jury, and the test is whether or not the verdict is an intelligible answer to the issue submitted to the jury.</p> <p>An action was commenced against the X. Railway Co. Before the trial the Y. Co. was summoned in, and appeared as a defendant. During the trial counsel for the Y. Co. admitted in open court that it was in control of the car at the time of the accident. The title of the case as endorsed upon the papers was not changed, and verdict was returned in the name of the X. Railway Co., defendant:—</p> <p>Held, that the issue for the jury to determine was whether the Y. Co. was guilty of negligence or not. This issue being decided in the affirmative, the verdict could be understood in no other sense and would be sustained.</p> <p>(2) Evidence. New Trials.</p> <p>Where a question which would have been proper in direct examination, but was not strictly in re-examination, was admitted, such irregularity in the order of examination is no ground for setting aside a verdict.</p>

<p>(1) Probate Law. Payment of Preferred Claims. Probate Court without Power to Direct Payment of Preferred Claims, Except on Request of Executor. Certiorari.</p> <p>C. P. A., § 809, which provides that pending an appeal from the appointment of an executor he shall have power, under the direction of the probate court,' to pay any debts of the testator which are preferred by law, while it gives power to the executor, imposes no obligation; and does not substitute the court in his place to decide upon the approval or rejection of claims, nor affect the other provisions of law giving the executor a certain time to approve or reject claims; so where an executor had neither passed upon • certain claims nor requested the direction of the court concerning their payment, the action of the court in directing such payment, upon petition of claimants, was void and is properly reviewed on certiorari.</p>

<p>Bill in Equity in aid of levy of execution.</p>

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

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

<p>(1) Duty of Shopkeeper to Customer as to Safety of Sidewalk as to Snow and Ice.</p> <p>A shopkeeper is under no duty to keep the sidewalk in* front of his shop safe for his customers by removing ice therefrom.</p>

<p>(1) Sales. Designating Goods Sold.</p> <p>Plaintiff claimed to have purchased of X. 20 tons of hay, a part of a larger quantity stored in bulk in X.’s barn. It was to be removed at convenience of plaintiff, and five hundred cubic feet were to be estimated as a ton, and the ten thousand cubic feet were to be ascertained by measuring from the east end of the mow, taking the entire width of the barn. No separation of the hay was made, and no measurement or weighing took place:—</p> <p>Held, that, while recognizing the rule that the goods to be sold must be sufficiently designated, yet here the prescribed dimensions and definite location was a tangible thing upon which the minds of the parties could meet without uncertainty, and the sale was complete.</p>

<p>(1) Malicious Prosecution. Money Paid under Duress.</p> <p>If a person arrested while protesting that he is not indebted to the person causing his arrest pays the money demanded simply to procure his freedom, he is not thereafter debarred from maintaining an action for malicious prosecution.</p>

<p>(1) Residue. Specific Devise. Charging Legacies on Realty.</p> <p>A will directed the executor to sell at public or private sale all real estate of testator (with the exception of the Breck building).</p> <p>The personal property of the estate was not sufficient to pay the pecuniary legacies in full, and, it becoming necessary to sell residuary real estate, if any, on the question'whether the Breck building constituted a part of such residuary estate or was a specific devise:—</p> <p>field, that the effect of placing realty with the residue was to subject it to the general rule governing residuary estates, that where legacies are given, and without creating any express trust for their payment a general residuary disposition is made of the whole estate, blending realty and personalty together, the real estate will be charged with the legacies.</p> <p>Held, that the building constituted a part of the residuary estate, and was not a specific devise, as claimed, on the ground that as the direction to sell included all real estate, except the Breck building, none of testator’s property except the Breck building could be regarded as real estate under the will, and so pass under the residuary clause.</p>

<p>(1) Bills and Notes. Maker. Endorser.</p> <p>Where a note was made in the firm name, and before delivery a member of the partnership placed his name upon the back of the note, under the provisions of the negotiable instruments act, section 71, he thereby added to his liability as maker a several and distinct liability as indorser, thereby making himself individually liable for the payment of the note, after due notice of dishonor, and also guaranteeing the signature on the face of the note, and rendering himself liable individually to an action by an indorsee.</p> <p>(2) Procedure. Joining Parties Defendant.</p> <p>Where a member of a partnership was sued individually as indorser of a note made in the firm name, a motion to make the other member of the firm a party defendant was properly denied, since if he wanted to bring in the party primarily liable as maker, he should have moved to have the maker of the note (i. e., the partnership) summoned in.</p> <p>Further, if the object was to try the question whether defendant was a partner, it was an improper way to raise it, and even if he were not a partner, it would not have changed his obligation as indorser.</p> <p>(3) Procedure. Subpoena duces tecum. Production of Documents.</p> <p>After plaintiff had closed his case,' defendant moved for a writ of subpoena duces tecum to produce the books of plaintiff, a national bank, which motion was denied:—</p> <p>Held, that, as such books could not be produced without great inconvenience to plaintiff, and defendant had failed to take advantage of the method allowed under C. P. A., § 402, to procure the desired information, before trial, it nowhere appearing that the accounts asked for if produced would have furnished any material evidence, and the attention of defendant having been called to the fact that the president of the bank was in court and his evidence was available, the court exercised a proper discretion in denying the motion.</p> <p>(4) Bills and Notes. Pleading. Payment.</p> <p>Where a partner was sued individually as endorser on a firm note, the plaintiff, by the production of the note and proof of demand for payment and notice of dishonor to defendant, made out a good prima facie case, and proof of payment of the note by any party was a matter of affirmative defence.</p>

<p>Probate Appeal.</p>

<p>Indictment for forgery, on facts stated in opinion.</p>

<p>(1) Garnishment. Railroads. Interstate Commerce.</p> <p>Where a railroad company operating in Rhode Island had in its possession freight cars of defendant company, organized under the laws of another State, and operating its road outside of this State, under an arrangement by which the local company had the right to use the cars of defendant in its business until such time as it might find it convenient to return the same to defendant, the company has such an immediate interest in the property and right of use that the cars are not subject to foreign attachment as the property of defendant in the possession of the local company.</p> <p>Whether an attachment of this kind is an interference with interstate commerce is not decided.</p> <p>(2) Garnishment. Corporations. Situs of Debt.</p> <p>The New York, New Haven and Hartford R. R. Co. was incorporated in Rhode Island, Massachusetts, and Connecticut, and operated lines of road in all of said States; all of the corporations were administered by one board of directors and by a single corporate organization; the principal offices were in the State of Connecticut:—</p> <p>Held, that, whether the company was a single corporation incorporated within three States, or three corporations which practically have become so consolidated that their affairs can not be separated, the situs of an indebtedness due to another company on the joint or consolidated business, for the purposes of garnishment, was in either State.</p> <p>(3) Garnishment. Interstate Commerce.</p> <p>Accounts payable to a foreign railroad company, in the hands of a local railroad company, are subject to garnishment, although they may have arisen out of the conduct of interstate commerce.</p>

<p>(1) Intoxicating Liquors. Construction of word “ Owners.”</p> <p>Pub. Laws cap. 1355, § 1 provides, “no license shall be granted (for the sale of intoxicants) at any building or place where the owners of the greater part of the land within two hundred feet of such building or place shall file with the board having jurisdiction to grant licenses their objection to the granting of such license”:—</p> <p>Held, that the word “owners” must be confined to its prima facie meaning, of those seized of freehold estates.</p>

<p>Gen. Laws cap. 187, § 18, provides that “ Every corporation which maintains, or uses railroad tracks in any street or highway in any town or city in this State, shall be liable to keep and maintain in good order and repair, including paving and repaving and wherever necessary, that portion of any street or highway occupied by its railroad and eighteen inches outside of any of its rails.”</p> <p>An ordinance of the city of Newport granting a street railway company-permission to lay rails provided that “said company shall pave and repave-said streets, whenever required to do so by the street commissioner.”</p> <p>The city contracted for the paving of a highway, the contract covering the-whole roadway, excepting eight inches outside and four inches inside the tracks, but refused to pay for a strip ten inches in width outside of the excepted portion, on the ground that it was the duty of the railway company to pave such portion of the street, and, the contractor being bound to take-notice of the statutes and ordinance, such portion was excluded from the contract, and the contract so far as it included this strip, was ultra vires:—</p> <p>Held, that the city had the power in the first instance to make a contract for the paving of the highway, and could not refuse to pay for that portion of the highway which the street railway was bound to pave; but if it sought, reimbursement from the company for work done for which the company was liable,,it was its duty to take the steps to obtain such reimbursement.</p>

<p>(1) Exceptions. Waiver of Exception.</p> <p>Where a motion to direct a verdict for defendant was denied, and defendant excepted, and after verdict for plaintiff filed a motion for a new trial on the ground that the verdict was against the evidence, this latter motion was a waiver of the exception to the denial of the motion for direction of a verdict on the same ground, and it can not be considered as ground for a bill of exceptions.</p>

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

<p>(1) Criminal Complaint. Adjournment of Hearing for Over Fourteen Days. Waiver.</p> <p>C. P. A., § 167, provides that a District Court may adjourn a trial, not exceeding fourteen days at any one time, except with the consent or at the request of the accused:—</p> <p>Held, that such consent or request, being a condition on which the jurisdiction of the court to adjourn the case depends, should appear on the record.</p> <p>• Held, further, that, the statute being for the benefit of a defendant, the subsequent appearance of defendant without protest is an effectual waiver of the irregularity and supplies the consent which was lacking.</p>

<p>(1) Master and Servant. Elevators. Question for Jury.</p> <p>Declaration alleged that plaintiff was injured, while operating an elevator in mill of defendant, by being struck by a truck which another employee had - pushed across the floor towards the trap doors covering the elevator-well, and, the elevator lifting the doors as it ascended, the truck went into the opening and down into the cage; and in the first count alleged a violation of chapter 973, section 15 of the Public Laws, in that the elevator was not equipped with an automatic signal apparatus, and in the second count alleged a violation of section 1121, C. P. A., in that the elevator opening was not protected by sufficient railings, gates, or trap doors: — ■</p> <p>Held, that the question whether the violation of the statutory obligation was a concurrent cause of the accident was a question of fact for the jury, and proof of this would establish the negligence of the defendant; and though there might have been negligence on the part of the fellow-servant, this would not prevent recovery against either.</p> <p>(2) Elevators. To Whom Act Applies.</p> <p>Held, further, that the provisions of the act were for the benefit of all persons, whether in or out of the elevator, who are upon the landlord’s premises as employees or by his invitation.</p>

<p>(1) Theaters. Pleading. Negligence.</p> <p>Declaration against proprietor of a theater by a spectator alleged that he was injured by a performer on a bicycle riding off the stage, and that, the exhibition being one which required some suitable protection to spectators from injury by reason of such occurrence, it was the duty of defendant, under whose supervision it was given, to provide such protection.</p> <p>A second count alleged that the performer was the agent of defendant, and that it was the duty of defendant and his agents to use due care in the management of said bicycle so that it should not fall off the stage, and alleged the accident as occurring through the negligent management of the bicycle. On demurrer:—</p> <p>Held, that the first count stated a case.</p> <p>Held, further, that, although the relation of the performer to defendant was not set forth in the first count, it was sufficiently alleged that the exhibition was given under the supervision of defendant, and that he was the owner and manager of the theater at the time, and plaintiff had paid the required admission fee:—</p> <p>Held, further that the second count was not demurrable because it did not allege the specific cause of the accident, but the fact that the bicycle left the stage was prima facie evidence of negligence on the part of the performer.</p>

<p>(1) Mandamus. Unincorporated Associations.</p> <p>A petition for mandamus was filed against certain individuals alleged to constitute the board of directors of an unincorporated association:—</p> <p>Held, that it was well settled that mandamus, in the absence of statute, would not lie against an unincorporated association; so, also, it could not against the respondents in their individual capacity where their only relation to the subject-matter grew out of their official relations as a board to the general association.</p>

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

<p>Habeas CoRPtrs, on facts set out in opinion.</p>

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

<p>(1) Criminal Law and Pleading. Conviction of Lesser offence.</p> <p>Defendant was convicted of larceny, under an indictment charging the breaking and entering of a freight car with intent to comrñit larceny, and stealing certain goods, found therein, of the value of $164. The indictment was brought under Gen. Laws cap. 279, § 10, as amended by Pub. Laws cap. . 454, § 1, providing that “every person who shall at any time break and enter any railroad car or break any lock or seal thereon, with intent to commit larceny or other crime, shall be imprisoned not exceeding two years.”</p> <p>Gen. Laws cap. 279, § 16, as amended by C. P. A., § 1175, provides, “if the value of the property or money stolen, received or embezzled, does not exceed $500, any person so convicted shall be punished by imprisonment for not more than one year or by fine of not more than $500, or by both.”</p> <p>Gen. Laws.cap. 285, § 24, as amended by C. P. A., § 1185, provides, “Whenever, any person is tried on a complaint or indictment, and the court or jury as the case may be shall not be satisfied that he is guilty of the whole offence, but shall be satisfied that he is guilty of so much thereof as shall substantially amount to an offence of a lower nature, the court or jury may find him. guilty of such lower offence, and shall sentence for the offence of which he was so found guilty, notwithstanding that such court had not otherwise jurisdiction of such offence”:—</p> <p>Held, that the offence of which the jury found defendant guilty was of a lower nature than that charged in 'the indictment, and the verdict was in accordance with Gen. Laws cap. 285, § 24, above.</p> <p>(2) Statutes.</p> <p>A statute is not to be construed so as to repeal the common law unless the intent to alter it is clearly expressed.</p> <p>(3) Criminal Law. Principal and Accessories.</p> <p>Gen. Laws cap. 284, § 2, as amended by O. P. A.. § 1178, provides, “Every person who shall aid, assist, abet, counsel, hire, command, or procure another to commit any crime or offence, shall be proceeded against as principal, or as an accessory before the fact, according to the nature of the offence committed, and upon conviction shall suffer the like punishment as the principal offender is subject to by this title”:—</p> <p>Held, that the statute was not a restriction of the common law, but was an enlargement of it, the true meaning being that the offenders should be proceeded against as principals or accessories before the fact, according to the nature of the offence committed by them, whether the same be felony or misdemeanor.</p>

<p>(1) Common Carriers. Removal of Snovi and Ice.</p> <p>A railroad company is not responsible for the existence of ice or snow upon the steps of its cars until it has had sufficient time and opportunity, consistently with its duty to transport its passengers, to remove the accumulation.</p> <p>Plaintiff was injured in descending from a street car by slipping from the stop. A snowstorm had commenced the night before, and, with intermissions of rain, continued during that day, the average temperature being below freezing. Before starting on the trip the conductor had removed from the step such snow and ice as had accumulated, but after starting, ice or snow had been deposited on the step by the feet of passengers, and so remained in considerable mass when plaintiff alighted:—</p> <p>Held, that defendant was not under any duty to prevent the steps of its cars from becoming slippery by the ingress of passengers during the passage of the car along its route.</p> <p>Held, further, that the prevalence of stormy weather and a freezing temperature imposes upon a passenger an extra degree of care in alighting from a car.</p>

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

<p>Bill in Equity for construction of will, certified to Supreme Court under C. P. A. § 338.</p>

<p>(1) Garnishment. Exemptions from Attachment of Negotiable Promissory-</p> <p> Notes. </p> <p>Under the provisions of C. P. A. § 601, subsection 11, of exemptions from attachment, including “debts secured by bills of exchange or negotiable .promissory notes,” the amount due from the maker of an overdue promissory note, to the payee thereof while the note is held by the payee, is not subject to garnishment served upon the maker in another action against the payee. . .</p> <p>Sketch of the history of such exemption in this State.</p>

<p>(1) - Easements. Right of Way for Ingress and Egress. Oates.</p> <p>A right of way was in the terms following: “ With the right of using a passway of 14 feet in width on the westerly side of the above lot described extending from said High street to the P. & W. Railroad Co., land for the ingress and egress of all parties interested therein”:—</p> <p>Held, that the right must be confined to that of ingress and egress; that the erection of a fence at the end of the way between the way and the railroad land could not interfere with the grantees’ right from their property to the highway, and that a gate at the end of the way upon the highway would not constitute an unreasonable interference with the easement, if so constructed as to permit the use of the way for wagons and persons on foot and opening conveniently for passage; which gate grantee must not leave unclosed in an unreasonable manner when using said way.</p>

<p>Trespass Quare Clausum.</p>

<p>(1) Agreements of Counsel in Writing. Accident and Mistake. New Trial.</p> <p>•On a petition for leave to prosecute a bill of exceptions, where plaintiff failed to give notice under the rule of the filing of the bill for allowance in the Superior Court, alleging a verbal understanding with defendant’s attorney,' which the latter denied, plaintiff failing to establish the ground of his petition by a preponderance of evidence, the case must be governed by rule 28 of the Superior Court, requiring agreements to be in writing.</p>

<p>Assumpsit by Mortgagor to Recover Surplus of Foreclosure Sale. Parties. Pleading. Co-tenants.</p> <p>In assumpsit against a mortgagee to recover surplus of proceeds of foreclosure-sale, all the mortgagors must join.</p>

<p>Trespass on the Case for negligence. Heard on exceptions of both parties.</p>

<p> Deceit. Warranty. </p> <p>Where inferior material was substituted in place of that which was agreed to be furnished an action of the case in deceit for breach of warranty will lie.</p>

<p> Garnishee Must he Charged Before Final Judgment. </p> <p>Pub. Laws cap. 1432, passed April 16,1907, amending C. P. A., § 578, requires the charging of the garnishee to be made before final judgment, but the provisions of C. P. A., § 427, are ample for the continuance of the cause, after decision and before final judgment, for such time as may be necessary to determine the question of the liability of a garnishee.</p>

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

<p>(1) Bills of Exceptions. Stating Exceptions Separately.</p> <p>The burden of ascertaining whether the exceptions are stated clearly and separately is placed upon the trial justice to whose rulings the exceptions are taken; but no exception to his allowance of a bill of exceptions is permitted: the only remedy provided^ for either party aggrieved by the action of the justice relative to the bill is to establish the truth of the exceptions under C. P. A., § 494.</p> <p>(2) Exceptions. Filing Transcript of Testimony.</p> <p>It is not necessary to make the transcript of testimony a part of the bill of exceptions; but under C. P. A., § 490, it is sufficient if it accompanies the bill and is examined and allowed by the Superior Court in connection therewith.</p> <p>(3) Amendment of Bill of Exceptions.</p> <p>An amended bill of exceptions filed within the statutory period may be regarded as an alteration of the bill which the court has the authority to allow.</p>

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

<p>(1) Negligence. Proximate Cause. Intervening Cause.</p> <p>In an action for negligence, the declaration originally alleged that defendant negligently hung an electric-light globe in such close proximity to an overhead trolley-wire of the electric railroad company that the globe was broken by the pole on the car, slipping from the wire as it was going around a curve, striking the globe and thereby causing it to fall. On demurrer, the court held that the case was not within the rule laid down in Hampson v. Taylor, 15 R. I. 83, as to the combination of two causes of injury, both in their nature proximate, one a defective condition and the other an occurrence for which neither party was responsible, since the slipping of the pole was not an accident, but prima facie negligence on the part of the railroad company, and that such negligence, being the independent act of a responsible person, and intervening between the alleged negligence of defendant and the happening of the accident, broke the causal connection between the two, and hence was the proximate cause of the accident, and that the placing of the globe formed only the condition, and not the cause, of the accident. Thereafter the declaration was amended by averments that the trolley-poles were "apt" to "accidentally” slip from the trolley-wire at the curve where the defendant’s lamp-post was located, without negligence on the part of the railroad company, and that the defendant knew this:—</p> <p>Held, that, there being no averment that the trolley-pole slipped on the occasion in question without negligence on the part of the railroad company, and there being no facts set forth in the declaration enabling the court to determine whether the slipping at this time was or was not due to any negligence or want of care of the railroad company, that the mere averment that such a pole slipped from its wire “accidentally" was insufficient; that if the slipping of the pole was due to the negligence or want of care of the railroad company the causal chain was broken, and if the plaintiff sought to hold the defendant liable because it was negligent, while the railroad company was free from negligence, he should state specifically in the declaration such a case.</p>

<p>(1) Trespass and Ejectment. Right of Possession.</p> <p>In an action of trespass and ejectment, it appeared that at the date of issue of the writ, July 25, 1906, plaintiffs (monthly tenants) were in arrears for rent for more than fifteen days. July 5, 1906, the landlord accepted defendant's principal as tenant of the premises:—</p> <p>Held,, that, as at the date of the writ an immediate right of re-entry had then accrued to the landlord, his action in accepting defendant’s principal as tenant must be considered an assertion of his right to re-enter for nonpayment of rent which, under C. P. A., § 404, could be shown as an outstanding superior right of possession sufficient to defeat plaintiff’s right to possession at the time of bringing the action.</p> <p>(2) Trespass and Ejectment. Mesne Profits. Damages.</p> <p>In an action of trespass and ejectment the issue is as to the right of possession only. Damages are recoverable in a separate action for mesne profits or other appropriate proceeding.</p>

<p>(1) Probate Appeal. Party Aggrieved. Guardian and Ward.</p> <p>Petitioner, a brother of respondent, who had an annuity charged upon the realty of respondent, petitioned, under C. P. A., § 1047, for the appointment of a guardian upon the person and estate of respondent, which was denied by the Probate Court, and an appeal was taken to the Superior Court. Respondent, after the removal of the cause to the Supreme Court, filed therein a motion to dismiss the bill of exceptions on the ground that petitioner was not aggrieved by the decree of the Probate Court: — •</p> <p>Held, that, by the terms of the statute, no right of appeal was given the petitioner, and that he was not “aggrieved” within the meaning of that term as used in the statute.</p> <p>Held, further, that the fact of the annuity was irrelevant, as the statute relative to the appointment of guardians, did not contemplate the protection of the right of a petitioner in the estate of a respondent, but rather the capacity of the respondent to deal with his estate in his own way.</p>

<p>(1) Statute of Frauds. Memorandum in Writing.</p> <p>Memorandum of agreement was as follows: “I have sold this place to X. for $2,100 cash, and is all clear of mortgage. (Signed) Y.”</p> <p>Y. also gave X. a deed to Y., which contained a description of the property so agreed to be conveyed to X.</p> <p>Held, that, following Ray v. Card, 21 R. I. 362, the memorandum was insufficient.</p> <p>Held, further, that, the memorandum containing no reference to any other document, the deed could not be considered as a part of the memorandum.</p>

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

<p>(1) Quo Warranto. Board of Canvassers. Power of Court to Review Finding of Board on Questions of Law.</p> <p>Under the provisions of Cons. R. I. art. XII of Amendments, § 1, providing, that “The supreme court shall have final revisory and appellate jurisdiction upon all questions of law and equity,” the court will consider questions of law, arising in the determination by the board of canvassers and registration of the city of Providence of the result of the election of members of the city council of the city of Providence under Pub. Laws cap. 363, properly raised in quo warranto proceedings.</p> <p>Rule in Sherry v. O’Brien, 22 R. I. 319, applicable as the constitution then stood, relaxed.</p> <p>(2) Decision of Board on Facts, .Final.</p> <p>Decision of court, reported in 29 R. I. p. 232, that the decision of the board upon questions of fact is final, and not subject to review by the court, affirmed.</p> <p>(3) Ballots. Marking Ballots.</p> <p>Under the provisions of Gen. Laws cap. 11, § 38, as amended by Pub. Laws 1229, ballots in which the proper X mark had been placed in the circle at the head of the column, no cancellation being made of any name in the column under the circle thus marked, but on which cross marks also appeared against the names of other candidates for the same offices, .there being no mark in any other circle on the ballot, are properly counted for each of the candidates in the column above which the X mark was placed.</p>

<p>Criminal complaint.</p>

<p>(1) ■ Insurance.</p> <p>Where insured during his lifetime surrendered an endowment policy payable to him if he should survive the term of twenty-one years, and in case of his death to his wife, or, if she should die before him, then to their children, and took a paid-up policy in place thereof, payable to his wife, or, in the event-of her prior death, to their children, their executors, administrators, or assigns, and the wife deceased before insured, upon his death the terms of the paid-up policy must decide the question of title to the fund.</p> <p>(2) Insurance. Policy made in Foreign State, Construction of.</p> <p>Where a contract of insurance was made in Connecticut, to be' performed there, it must be construed in accordance with the law of that State.*'</p> <p>(3) Insurance. Construction of Policy.</p> <p>Insured took out a paid-up life policy, payable to his wife, or, in the event of her prior death, to their children, their executors, administrators, or assigns. The wife died, never having had any child born alive, leaving a will by which she gave her property to her husband for life, and after his death to the children, living at the time of her death, of her brother. Insured married again and had one son, the issue of the second marriage, and died, leaving a will by which he gave one-half of his- property to his- widow and one-half to his son: — ■</p> <p>Held, that the first wife took a vested interest in the policy when it was issued, liable to be divested by her death leaving children.</p> <p>Held, further, that, the wife having died leaving no issue, her interest was transmitted to her administrator de bonis non, with will, annexed, for distribution according to the terms of her will.</p>

<p>Indictments charging conspiracy, on facts fully set out in opinion. Certified from Superior Court, under C. P. A., § 478.</p>

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

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

<p>Trespass for assault and battery.</p>

<p>Trespass on the Case for negligence. Heard on plaintiff’s-petition to establish truth of defendant’s bill of exceptions, under C. P. A., § 494.</p>

<p>(1) Stating Exceptions.</p> <p>An exception “Now comes the respondent and excepts to the decision of said court in giving decision in favor of the petitioner and against said respondent and granting the prayer of said petition” is too general, and will be dismissed.</p> <p>Qucere: Whether bills of exceptions are applicable to divorce proceedings.</p>

<p>Petition for Writ of Prohibition.</p>

<p>Probate Appeal.</p>

<p>(1) Payment of Taxes by Other than Person Assessed.</p> <p>Where it appears that the taxes of 1,148 persons were paid to the collector of taxes at one time by a third person, in the absence of any testimony of such person or of the individual taxpayers, the payment appears to have been a voluntary and unauthorized act on the part of such person which prima facie did not qualify the persons assessed to vote, and making it incumbent upon the respondents in certiorari (assessors of taxes, collector of taxes, and board of canvassers), brought by candidates for city council, to show an authorization in each instance sufficient to satisfy the requirements of the constitution.</p>

<p>Trespass and Ejectment.</p>

<p>(1) Pleading. Joinder of Counts. Variance.</p> <p>Under the provisions of C. P. A., § 246, a plaintiff may properly follow a writ in trespass on the ease by a declaration containing a single count in trespass, since the clear intention of the statute is to do away with the distinction between actions of trespass and trespass on the case, so far as the adequacy of the writ to support counts in either action is concerned.</p> <p>(2) Evidence. Plats.</p> <p>In an action of trespass for the removal of sand, a plat of the premises, prepared by an engineer under the direction of plaintiff, showing the location', as plaintiff claimed, of the piles of sand, with the dimensions, was properly admitted.</p> <p>(3) Presumption of Law against Spoliator.</p> <p>In an action of trespass for the removal of sand, a charge that if the amount that was taken was disputed, and the jury found that the defendant had knowledge of the rights of the plaintiff and took the sand in violation of his rights, the presumption of law was that the larger quantity and better quality was removed, correctly stated the law.</p> <p>(4) Punitive damages.</p> <p>Rule of punitive damages stated in Hagan v. Prov. & Wor. B. B. Co., 3 R. I. 88, approved.</p>

<p>(1) Sale of Mortgaged Personal Property under Attachment.</p> <p>€. P. A., § 629, relative to the sale of mortgaged personal property under attachment, requires that a mortgagee shall receive from the proceeds of sale the amount due on the mortgage, and the attaching creditor can not deduct the expenses of such sale where the amount obtained is less than the amount due under the mortgage.</p>

<p>Criminal Complaint.</p>

<p>Probate Appeal.</p>

<p>Action on Bond.</p>

<p>(1) Petition to Town Clerk, on Voting for Granting of Licenses. Intoxicating Liquors. Construction of Statutes.</p> <p>The proviso in section four, Chapter 102, of the General Laws, relative to the electors of the several towns and cities voting for or against the granting of licenses for the sale of intoxicating liquors, upon petition therefor filed with the town clerk, has no meaning under the present methods of elections.</p> <p>The legislature having failed to establish a basis of mathematical computation, the court can not construe the proviso so as to derive any rule, either as to the basis of computation of the number of names required to make a valid petition, or as to the method by which the town clerk shall determine that the signers of the petition are “qualified electors,” and the proviso is therefore void for uncertainty in these respects.</p> <p>(2) True Intent of Legislature. Construction of Statutes.</p> <p>Upon an examination of the history of legislation upon this subject, as well as upon consideration of the frame of section four itself, it appears that the real and true intent of the legislature was to continue and preserve the right of local option as it had existed and been exercised under former statutes, and that the enacting of the proviso in a form which is void for uncertainty does not express the true intent and meaning of the legislature; that the remainder of the section, after striking out the proviso, forms in itself a clear, complete, and intelligible statute, and so the true intent of the legislature is preserved by allowing the remainder of the section to stand as a complete statute.</p> <p>(3) Voting on Granting Licenses Yearly.</p> <p>With this elimination the general purpose of the section would be to require the electors of the several cities and towns to cast their ballots for or against the granting of licenses at each election of general officers, with general provisions as to the effect of the majority of the ballots cast on the future granting of licenses; and so, the question “ Will this town (or city) grant licenses for the sale of intoxicating liquors ? ” should be placed upon the ballots to be used in the several cities and towns at the ensuing election of general officers, in accordance with the provisions of section 22 of chapter 11 of the General Laws as amended by section 2 of chapter 1229 of the Public Laws passed April 26,1905.</p> <p>(4) Warrant for Elective Meeting. Duty of Town Clerk to Insert Notice.</p> <p>Under the provisions of General Laws cap. 37., § 8, a town or city clerk has authority to insert in his warrant notice of the fact that the proposition of granting licenses is to be voted on; but aside from this, the legislature having directed a vote on the question to be taken, it becomes the duty of the town or city clerks to give notice thereof in the warrants calling the meetings.</p>

<p>(1) Intoxicating Liquors. Basis of Computation. Census.</p> <p>Chapter 1583, § 2, Public Laws of 1908, contains the following proviso: “Provided that the number of licenses granted (not including druggists’ liquor licenses) shall not exceed — one for each five hundred inhabitants as determined by the last census taken under the authority of the United States or of the state of Rhode Island”:—</p> <p>Held, that it was the intent of the act that the latest enumeration made, whether under national or State authority, should be used as the basis of computation.</p> <p>Held, further, that it was therefore necessary that the town council of a town in granting licenses should take the State census as of June 1, 1905, as the basis of determining the number of licenses which could be lawfully granted in that town.</p> <p>(2) State Census. Census Board. Approval of Census.</p> <p>Where it appears that the State census was duly reported to the legislature by the commissioner of industrial statistics, and was printed as a part of his annual report, and the same census of population was printed in a census bulletin for general distribution, wherein it was stated that it was compiled from a correct and final count of the enumerators’ returns as of June 1,1905, in the absence of any provision of law requiring any formal action by the census board or legislature, or any action as to approval or acceptance, it is to be presumed that the board approved the census as reported and that the legislature, in receiving the same and causing it to be printed as part of an official report, also approved it.</p> <p>(3) Intoxicating Liquors. Licenses, when Granted and when to take Effect.</p> <p>Where a town council granted licenses November 16, 1908, for the “year ending December 1, 1909,” its action was in legal effect a grant on December 1, 1908, to expire the first day of December next succeeding the granting of the same in compliance with the terms of the statute.</p>

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

<p>(1) Civil Contempts.</p> <p>A decree of the Superior Court, denying a petition to adjudge a party in contempt for not paying money in accordance with a decree theretofore entered in the cause, is a final decree from which an appeal will lie to the Supreme Court under the grant of “final revisory and appellate jurisdiction upon all questions of law and equity” by section 1 of article XII of amendments to the constitution.</p> <p>(2) Equity. Contempt. Execution.</p> <p>Equity may punish by contempt for violation of its decrees, although execution might also have issued.</p> <p>(3) Civil Contempts. Appeal.</p> <p>A decree for payment of money may be enforced in chancery proceedings for contempt.</p> <p>(4) Effect of Decree Ordering Payment by Trustees.</p> <p>Where a decree directed trustees to pay to complainant a sum, which was specifically declared to be dividends and income from the trust estate, which had been theretofore received by the trustees, there was no limitation to a payment out of the trust estate only, and the duty of the trustees to comply with the decree was not affected by the fact that they may have devoted the money to other purposes, and in such case they are required to make restitution from their individual estates.</p> <p>(5) Effect of Decree Framed by Supreme Court.</p> <p>A decree framed by the Supreme Court, which the Superior Court is directed to enter, as framed, is in effect the decree of the Supreme Court. ”</p>

<p>(1) Legacy for Care of Burying Lot. Refusal by Trustee to Accept.</p> <p>A legacy to a town council, to be held by it in perpetual trust to apply the income to the ornamenting and keeping in repair of testator’s burying-ground, is a valid trust under the provisions of Gen. Laws cap. 40, § 35, but where successive town councils have declined to accept it, the court has neither power to compel its acceptance nor to appoint a new trustee, but, the trust not being invalidated by such refusal, will permit the executor to pay the legacy into the registry of the court to enable the' executor to settle its account and that opportunity may be afforded the town council, within a reasonable period, to accept the legacy.</p>

<p>(1) Declaration. Emergency. Master and Servant. Assumed Risk. Declaration setting out the breaking down of one of two pressing-machines, and of the consequent accumulation of an unusual number of rolls of cloth on the floor in a space usually free for passage; of the piling of these rolls in this space by the plaintiff and another employee, under express orders of the overseer, so that the passage between the rolls and a machine was so narrow that a roll of cloth carried through the space grazed the pile of rolls on the one side and the machine on the other; that plaintiff was ordered by the overseer to hurry along the work on the machine, on account of the breaking down of another machine, shows on its face an emergency resulting from the breaking down of a machine and bringing about abnormal conditions under which plaintiff was required to work hurriedly, under express orders of his superior; and by reason of which hurry the injuries occurred, entitling plaintiff to go to the jury on the questions of assumed risk and contributory negligence.</p> <p>(2) Emergency. Question of Fact for Jury.</p> <p>The questions whether an employee has assumed the risk or has been guilty of contributory negligence, in a case where he is required to do his work in haste, either under orders of his superior or by reason of the exigency of his position, or because of an emergency, and where his whole energy and attention are absorbed in his work, or whether he may be excused from the degree of care ordinarily required, or for temporary forgetfulness of a risk previously known to him, or of a risk which he might under other circumstances have remembered or appreciated, have been generally held to be questions for the jury on the facts of the case.</p>

<p>Appeal from decision of Superior Court granting preliminary injunction.</p>

<p>(1) Special Club Licenses. Intoxicating Liquors.</p> <p>Special club licenses for the dispensing of intoxicating liquors, under the-■provisions of Pub. Laws cap. 1235, passed May 5, 1905, are not subject to the provisions of Pub. Laws cap. 1583, § 1, passed May 22,1908, providing that “the number of licenses granted (not including druggists’ liquor licenses) shall not exceed, in the several cities and towns of the State, one-for each five hundred inhabitants as determined by the last census taken; under the authority of the United States or of the State of Rhode Island.’’</p> <p>(2) Construction of Statutes.</p> <p>In the absence of statutory enactment to that effect, it is not to be presumed. . that the legislature intended that the provisions of a statute should be- ■ subject to the terms of another statute, if such presumption involves; incompatibility, incongruity, or manifest repugnancy'.</p> <p>(3) Construction of Statutes.</p> <p>Under the well-settled rule, no construction will be adopted which will defeat the evident purpose of a statute; and it is not to be presumed that the-legislature intends to permit something to be done by one statute the doing of which it prohibits by another separate statute, while both of said statutes, are co-existent.</p>

<p>Petition for a new trial under section 472, C. P. A., and petition denied.</p>

<p>(1) Forcible Entry and Detainer. Verdicts.</p> <p>Pub. Laws cap. 1533, passed April 21, 1908, “Of forcible entry and detainer,” provides that the jury shall sign and return to the court their verdict; and the form of the writ of restitution provides that the jurors “did return their verdict in writing signed by each of them”:—</p> <p>Held, that a verdict signed by the foreman alone was irregular, arid the proceedings would be quashed.</p> <p>(2) Same. Authority to Institute Proceedings.</p> <p>Where in an action for forcible entry and detainer, brought by a corporation, it does not appear that the corporation ever authorized the complaint to b& made, or that the persons who signed the complaint had any authority to institute the action, the proceedings will be quashed for irregularity.</p>

<p>(1) Constitutional Law. Barber Act. Searches and Seizures.</p> <p>■Cap. 1100, § 4, of the Public Laws (the Barber Act), authorizing any member of the board to enter and make reasonable examination of any barber shop for the purpose of ascertaining its sanitary condition, is not in contravention . of article I, section 6, of the constitution, which prohibits unreasonable ¡ searches and seizures.</p> <p>{2) Constitutional Law. Right to Jury Trial.</p> <p>Cap. 1100, § 13, of the Public Laws, as amended by C. P. A., § 1215, permitting an appeal from a decision of the board to the Supreme Court, does not deprive a defendant of any constitutional right to a jury trial, because a decision of the board revoking a certificate is not a criminal prosecution within the meaning of article I, section 10; and article I, section 15, providing that “the right of trial by jury shall remain inviolate,” does not apply to cases of this kind.</p> <p>{3) Constitutional Law. Certain Amendments do not Apply to States.</p> <p>Article V of amendments to the constitution of the United States is a limitation on the exercise of power by the Federal government, and does not apply to the State governments.</p> <p>{4) Constitutional Law. Construction of Statutes.</p> <p>A statute which in one section declares an unsanitary shop to be a common nuisance, and provides that the proprietor shall be subject to prosecution and punishment therefor, and in another section provides the penalty for maintaining this special statutory nuisance, does not impose two different punishments for the same offence.</p> <p>-(5) Constitutional Law. Equal Protection of Laws.</p> <p>Cap. 1100 of the Public Laws (the Barber Act), .which prohibits practicing the profession of barber in cities except in compliance with the terms of the act, and by section 16 empowers town councils to adopt its provisions, thereby making its terms from such adoption applicable to such towns, is not in contravention of article XIV of amendments to the constitution of the United States, providing that “No state shall . . . deny to any person within its jurisdiction the equal protection of the laws,” since it can not be regarded as obnoxious as being a special or local law; or as a delegation of legislative power.</p>

<p>(1) Trover. Conditional Sales. Damages.</p> <p>In trover for the conversion of a piano bought on the installment plan by plaintiff from defendants, and converted by defendants, the measure of damages is the actual value of the piano at time of conversion, less the unpaid portion of price.</p> <p>While plaintiff might show actual value in excess of contract price, at time of conversion, the defendants are estopped from showing a less value, except as 'the value might be affected by conditions expressed in the contract.</p> <p>(2) Conditional Sales. Merger. Contracts. Damages.</p> <p>Where a piano was sold on the installment plan and a lease executed by the parties, and subsequently a new agreement was entered into between the parties, the rights of the parties are governed by the last agreement; and in an action of trover by the vendee against vendor, a request to charge that the interest of the plaintiff related back to the first agreement, and was governed by what payments he had made on both agreements, was properly refused.</p>

<p>Petition for leave to file bill of exceptions under C. P. A., •§ 473, and denied.</p>

<p>Probate Appeal.</p>

<p>Present: Dubois, C. J., Blodgett, Johnson, Parkhurst, and Sweetland, JJ.</p> <p>(1) Exceptions prematurely brought.</p> <p>Appellant appealed from a decree of a Probate Court confirming a report of commissioners upon an insolvent estate. In the Superior court appellees moved that the appeal be dismissed, which motion was denied, and appellees excepted to the decision. On motion of appellant to dismiss appellees’ bills of exception:—</p> <p>Held, that the decision of the Superior Court was not a final decision, because, after the denial of the motion, the issues were left on the appellant’s reasons of appeal.</p> <p>Held, further, that the bills of exceptions were prematurely brought.</p>

<p>(1) Criminal Pleading. Unlawful Operation of Motor Vehicle.</p> <p>Criminal complaint under Pub. Laws cap. 1592, of May 26, 1908, charged that defendent did unlawfully operate a motor vehicle recklessly, and while doing so ran into a team so as to endanger the life and limb of complainant:—</p> <p>Held, that disregard of or inattention to the duty of obeying the laws regulating the use of such vehicles constituted unlawfulness and recklessness, and such words in the «complaint were descriptive of the maimer in which defendant drove the vehicle as set out therein, and negatived any inference that the collision was an innocent accident, and the offence was sufficiently alleged.</p> <p>(2) Motor Vehicles. Evidence. Criminal Complaint.</p> <p>In a criminal complaint charging unlawful operation of a motor vehicle, testimony as to the speed of the defendant immediately after the accident was properly admitted, as tending to show guilty knowledge by the fact of his running away after committing the offence.</p> <p>(3) Motor Vehicles. Evidence. Criminal Complaint.</p> <p>In a criminal complaint charging unlawful operation of a motor .vehicle, testimony as to whether a horn was blown, or any warning given by the vehicle, was properly admitted, for the purpose of ascertaining a component part of the history of the collision.</p> <p>(4) Criminal Complaint. Evidence. Motor Vehicles.</p> <p>In a criminal complaint charging unlawful operation of a motor vehicle, testimony tending to prove the speed at which the vehicle approached the wagon collided with just prior to the collision was properly admitted as incidental to the collision.</p>

<p>(1) Taxes. Payment of Personal Property Taxes by Political Committees. Constitutional Law.</p> <p>Article VII, section 1, of amendments to the constitution provides:</p> <p>“Provided, That no person shall at any time be allowed to vote in the election of the city council of any city, or upon any proposition to impose a tax or for the expenditure of money in any town or city, unless he shall, within the year next preceding have paid a tax assessed upon his property therein, valued at least at one hundred and thirty-four dollars.”—</p> <p>Held, that the payment of the taxes of personal property voters by a political committee, without authority by the persons assessed so to do, did not confer a right of suffrage.</p> <p>(2) Taxes. Certiorari. Elections.</p> <p>Where it appears that 467 votes of persons not qualified (because of their taxes having been paid without authority by a political committee) were cast at a ward election, which number was in excess of the majority received by the incumbents of the offices, the city treasurer having certified their names to the board of canvassers and that board having added their names to the voting-lists, and such certification by the city treasurer, upon the facts shown, being unauthorized by law, certiorari will issue quashing the certificate of the city treasurer, as to such names, and also quashing the record of the board of canvassers showing such persons to have been qualified, and also quashing the record of the result of the election.</p> <p>In the above state of facts, the evidence not showing for what candidates the illegal votes were cast, nor for whom the legally qualified electors voted, the incumbents of the offices not being parties to the proceedings, the court can not seat the petitioner, but will leave the filling of the offices for another election.</p> <p>Such decision does not prevent any of such disquajified persons from having his name restored to the voting-list for any subsequent election, for which the taxes assessed in July, 1908, furnishes the basis of qualification, if he can individually satisfy the collector of taxes that he lawfully authorized the payment of his tax by a third party.</p>

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

<p>(1) Evidence as to Judgment in Prior Suit between Parties.</p> <p>In an action of assumpsit to recover rent, evidence by the plaintiff was properly admitted to show that, in a prior suit between the same parties, although the term for which a recovery was sought in the case at bar was included in a longer term set out in the declaration in the prior suit, plaintiff was awarded judgment only for a term ending with the beginning of the present term, on the ground that the prior action was prematurely brought, as to'the term in suit in the case at bar.</p>

<p>(1) Prerogative Writs. Review by Appeal, not by Exceptions.</p> <p>Exceptions will not lie to the denial by the Superior Court of a petition for writ of mandamus, but the case should be brought before the Supreme Court for review by appeal under C. P. A., § 32,8, providing that “any party aggrieved by a final judgment in any proceeding in or in the nature of, a prerogative writ, except habeas corpus, may, within five days after entry of such judgment, appeal to the supreme court.”</p>

<p>(1) Damages. New Trial.</p> <p>In an action for trespass, for assault, while the damages awarded may be larger than the court would have assessed, yet, the jury being justified in awarding punitive'damages, the court will not disturb their finding unless the amount is so large as to shock the conscience of the court, or unless the court is satisfied that the jury have been improperly influenced or have acted from passion, prejudice, or partiality.</p> <p>(2) Damages. Party can not be Punished for Perjury by Award of Punitive Damages.</p> <p>In an action for trespass, where the testimony warranted the conclusion that one set of witnesses or the other was willfully trying to deceive the court and jury, it was error for the court to lead the jury to believe that the perjury could be punished by them in such action; and while punitive damages might properly have been awarded, they should be awarded as punishment for the trespass and not for the perjury.</p> <p>(3) Damages. Jury can not be Influenced because of Perjury.</p> <p>In an action for trespass it was error for the court to lead the jury to believe that, if they found defendant’s testimony false, they might legitimately be influenced by a prejudice against her in the further consideration of the case.</p>

<p>(1) Ne Exeat. Requisites of Affidavits. Bonds Pending Appeal.</p> <p>Upon petition for discharge of a writ of ne exeat, under which respondent had been committed, it appeared that the affidavits on which the writ was issued were based upon information obtained from third parties, and complainant stated everything upon information and swore only to his belief in what'he had stated on information. The court quashed the writ, but upon consideration of the affidavits filed at the hearing on the merits, ordered respondent to give security to abide the decree of the court theretofore entered. Upon appeal:—</p> <p>Held, that the writ was properly quashed.</p> <p>Held, further, that, while the Superior Court had authority, under C. P. A. § 331, to require a bond pending the appeal, the requirement to give security to abide the decree was not such an order, and the affidavits filed at the hearing being insufficient for the purpose of a new application for a writ of ne exeat, the respondent was improperly required to give security and that portion of the decree should be reversed.</p> <p>(2) Ne Exeat. When WHt will Issue. Practice.</p> <p>Under the rule established in Robinson v. Robinson, 21 R. I. 83, and under rule 33 of the rules in equity of the Superior Court, the writ of ne exeat should not issue except upon affidavits verifying the charges contained in the petition and containing allegations of facts or circumstances satisfactorily evincing an intention of respondent to depart from the State to avoid performance of the decree of the court on hearing, or of his threat or declaration of such intention.</p> <p>(3) Bonds in Ne Exeat. Practice.</p> <p>Although the practice of requiring a satisfactory bond running to defendant and conditioned for the payment of costs and damages before issuing the writ of vie exeat has not been followed in this State, the Superior Court has discretion to require it.</p> <p>(4) Injunctions in Ne Exeat. Inquiry in Equity.</p> <p>Upon the question of enjoining respondent from prosecuting any action at law, or inquiry in equity concerning his damages, by reason of the issuance of the writ of ne exeat-.—</p> <p>Held, that an injunction should have been granted restraining respondent from instituting an action at law, and whether he was entitled to an inquiry as to such damages should be left to the consideration of the court which issued the writ sitting in equity.</p>

<p>(1) Claim of Jury Trial on Question of Law From District Court.</p> <p>A claim for jury trial is not an appropriate proceeding to'bring up for review questions of law only which appear on the record in an action in a District. Court not heard on its merits.</p> <p>(2) Mandamus. Jury Trial on Question of Law from District Court.</p> <p>Mandamus will not lie to compel the clerk of a District Court to certify papers,. on a claim for jury trial, where a District Court has decided, without hearing a case on its merits, that, as a matter of law appearing on the face of the-record, the case is not within the jurisdiction of the court.</p> <p>(3) Writ of Error to Review Decision of District Court on Question of Law.</p> <p>Semble: Since no exception can be taken to a decision of a Distx-ict Court, a writ of error under C. P. A. § 2, is available as an appropriate proceeding for a party seeldng to review in the Supreme Court the judgment of a District Court based solely on questions of law.</p>

<p>(1) Municipal Corporations. Notice of Time of Accident.</p> <p>Where notice of a claim given to a town council was shown at the trial of the action to have stated an erroneous date as the time when the accident occurred, such a notice not only being a condition precedent to the right to bring suit, but proof of legal notice by a plaintiff -being a prerequisite to the right to recover, the defect is fatal.</p>

<p>(1) Elections. Taxes. Right of Suffrage. Payment of Tax by Third Party.</p> <p>While the provisions of section 1 of article VII of amendments to the constitution of Rhode Island do not permit the exercise of the suffrage by a person by reason of the voluntary and unauthorized payment of his tax by another, it equally does not permit such a payment to disqualify the person so assessed.</p> <p>While an acceptance of such payment by the city from another person may preclude the city from subsequently endeavoring to collect the amount from the person assessed, as to the right of suffrage it is a mere nullity; and mandamus will issue to require the collector of taxes to accept the amount of such tax with accrued interest from the person assessed, and to certify his name to the board of canvassers and registration, as required by Pub. Laws, cap. 808, sec. 4.</p>

<p>{1) Assumpsit on Promise made io Third Party.</p> <p>Declaration alleged that, the deceased husband of plaintiff being desirous of changing the beneficiary in an insurance policy, which was payable to his mother, so that it should be payable in equal shares to his wife and mother the latter (defendant), in consideration of his forbearing to make such change, promised him that she would) on receiving said insurance, pay one-half thereof to his wife (plaintiff). On demurrer:—</p> <p>Held, that there was a sufficient consideration for the maintenance of the action.</p>

<p>(1) Bills of Exception. Trcmsa-ipt of Evidence.</p> <p>It is the duty of the Superior Court to determine, under C. P. A., §' 490, whether the entire transcript of the evidence, etc., shall be filed, or how much thereof may be necessary for the determination of the exceptions; and by the allowance of a transcript as filed, the court certifies that the same is sufficient, and either party aggrieved by such allowance may bring the question before the Supreme Court under C. P. A., § 494; and it is too late, after the expiración of the time allowed by that section, to move to dismiss a bill of exceptions because of the incompleteness of the transcript.</p> <p>(2) Sales. Trover.</p> <p>Plaintiff purchased several lots of lumber at a public auction at which defendant was auctioneer. Plaintiff paid for all the lots but one, which he declined to accept on account of material variance from description. After the auction, defendant prevented plaintiff from removing the lots he had bought and paid for unless he would pay for the lot which he had refused to-accept. Receipts for the goods purchased and orders for the removal of same were given plaintiff when he made payment for them. By the terms of sale the lots wore sold for cash; were to be paid for at the time of sale, when an order of removal would be given; and purchasers were given ten days to remove goods, but they were at risk of purchaser as soon as struck off to him. No property to be removed until paid for in full, and only on presentation of order:—</p> <p>Held, that title passed to the goods at the time of payment, the receipt being intended as a symbolic delivery.</p> <p>Held, further, that the dispute concerning one lot did not include the other lots which had been paid for, and which plaintiff could legally remove on. presentation of delivery orders.</p> <p>Held, further, that the acts of defendant in refusing plaintiff’s demand for the goods amounted, under the well-settled law of the State, to a conversion.</p> <p>(3) Principal and Agent. Trover.</p> <p>A., the receiver of the X. Co., placed B. in possession of the property. A-arranged with C., an auctioneer, to sell the property. B. was to keep possession of the property until he was presented a delivery order, from the auctioneer, showing that it had been bought and paid for. D., the purchaser of certain goods, presented an order for same to B., who refused to deliver1 them upon the statement of C. that the terms of sale were not complied with and the goods could not be delivered:—</p> <p>Held, that, in preventing the removal of the goods, B. was not acting in his capacity as agent of A., but was acting for C , and his acts were in law the acts of C.</p>

<p>(1) Probate Law and Practice. Action against Administrator. Exceptions.</p> <p>In an action against A. B., administrator of the estate of C. D., where the declaration contained the common counts and averred the contracting of the indebtedness, and a promise, by the defendant only, the judgment is a personal judgment upon which execution could only issue de bonis propriis, and not against the estate; hence a bill of exceptions by residuary devisees discloses no interest on their part in such judgment, and the bill will be dismissed.</p>

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

<p>Probate Appeal.</p>

<p>Criminal Complaint.</p>

<p>(1) Probate Appeal. Amendment of Petition.</p> <p>In a probate appeal upon a petition for removal of a guardian, the petition can not be amended in a matter of substance so as to include something which might be the basis of another proceeding in the Probate Court.</p> <p>(2) Probate Appeal. Evidence.</p> <p>In a probate appeal upon a petition for removal of a guardian, evidence tending to prove a charge not contained in the petition is inadmissible.</p>

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

<p>(1) Bills of Exceptions. Construction of Rules Affecting right of Review.</p> <p>'The right of a litigant, who observes the procedure fixed by statute, to come to the supreme court upon a bill of exceptions is as indubitable as his right to be heal’d in the superior court, and the statutory procedure is to be construed as reasonable rules to be observed in perfecting such right; so whenever in such procedure two different constructions of a provision are possible, the harsher and less reasonable should not be the one to receive judicial sanction.</p> <p>(2) Bills of Exceptions. Extending time for Filing Transcript.</p> <p>If at the time of filing the notice of intention to prosecute a bill of exceptions it appears to the superior court that for any cause the transcript cannot be made and delivered within forty days from the date of the written request for the same, the court may grant an extension of the ordinary period contemplated by C. P. A., sec. 71, by an original order to that effect, and is not required to first fix the statutory period and then thereafter to extend the time so fixed.</p> <p>(3) Bills of Exceptions. Order extending time. Loss in Mails.</p> <p>Where an order extending the time for filing a transcript of testimony was entered by a justice of the superior court, and was lost in transmission through the mails and never reached the files of the court, such loss cannot prejudice the rights of the party, since the order, which was the vital and necessary step, was duly made before the expiration of the period first fixed.</p>

<p>(1) Contracts. Goods Bargained and Sold.</p> <p>An action for goods bargained and sold was brought upon a contract which stated “We have to-day sold to the Kinney Company two die cutting machines. The first machine is to be delivered in from two to three weeks approximately. When the machine is delivered, set up, and in satisfactory running order the Kinney Company agrees to remit their check for $1,200.” After the machine was built, but before delivery, defendant can-celled the order:—</p> <p>Held, that the contract was executory and required not only delivery, but also that the machine should be set up in defendant’s place of business, and put in running order satisfactory to defendant.</p>

<p> ■Certiorari. Review. Statute of Limitations. </p> <p>A petition for certiorari is analogous to a petition for a new trial where the time for review is limited to one year.</p>

<p>(1) Contingent Claims Against Estate. Liability of Heirs, etc.</p> <p>•C. P. A., § 984 fixes the liability of heirs, next of kin, devisees and legatees, “for all debts for which suits could not have been brought against the executor or administrator.”</p> <p>Section 985 provides that any creditor holding a “contingent claim,” the right of action on which did not accrue during the period of two years from the date of the first publication of the notice of qualification, may bring his ac-1 tion within one year after his right of action accrues.</p> <p>■Section 987 provides that “the creditor shall recover such claim by a suit in equity”:—</p> <p>Held,, that the word “debts” in section 984 was broad enough to include “contingent claim” as used in section 985.</p> <p>Held, further, that the holder of such a claim was a “creditor” within the meaning of section 987.</p> <p>(2) Liability under Covenant, a Contingent Claim.</p> <p>The liability under a covenant of quiet enjoyment in a deed is a contingent claim, within the meaning of C. P. A., § 985, relative to the recovery of claims from the heirs, devisees, etc., of an estate.</p> <p>(3) Covenants. Eviction.</p> <p>A voluntary surrender of the possession of the land by the covenantee to the holder of the legal and paramount title, either before or after an adverse judgment, is a sufficient constructive eviction to entitle him to an action against his covenantor on the covenant of warranty.</p> <p>(4) Breach of Covenant. Actions. Equity.</p> <p>A claim for breach of a covenant of quiet enjoyment, the right of action on which did not accrue until after the expiration of two years from the date of the first publication of the notice of qualification by the executor, must be recovered by a suit in equity against the heirs, devisees, and legatees under C. P. A., § 987.</p>

<p>Bill in Equity. Certified under C. P. A., § 338, for final decree.</p>

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

<p>(1) Contracts. Statute of Frauds. Contracts Not to be Performed within a Year.</p> <p>Assumpsit was brought upon the following agreement for hiring:</p> <p>“ Understanding that you will give me your best ability as a finisher of cotton and silk or all silk goods especially, but of any other grade of goods within your knowledge and abilityjffliereby agree to employ you at a compensation "of fifty dollars per week for^three years from the date hereof or for so much of such three years as your results show the ability that you now claim to be able to give me,”—</p> <p>Held, that the agreement was within the statute of frauds, as a contract which was not to be performed within one year from the making thereof, under C. P. A., § 226, clause S.</p> <p>Held, further, that a contract for a term longer than a year was not excluded from the operation of the statute, because it might be terminated within a year.</p> <p>(2) ' Statute of Frauds. What Memorándum Must Contain.</p> <p>Held, further, that the agreement was not a sufficient memorandum-to satisfy the requirements of the statute, since it was incomplete and uncertain as to the standard of ability of the employee, making resort to parol testimony necessary to complete it.</p>

<p>Indictment charging manslaughter.</p>

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

<p>Trespass on the Case for negligence. Heard on exceptions of plaintiff, and sustained. Blodgett J., dissenting.</p>

<p>(1) Constitutional Law. Publication and Submission of Amendments.</p> <p>The General Assembly has constitutional power, in approving a proposition of amendment to the constitution, passed by a preceding Assembly concerning entirely distinct subjects and’relating to three distinct articles, to provide that such proposition be published and submitted to the electors as separate proposed amendments to the constitution'.</p> <p>2) Same.</p> <p>Art. XIII of the constitution, after providing how the General Assembly may propose amendments to the constitution, further provides, that “the same shall be published and submitted to the electors in the mode provided in the act of approval,” so that it is the Assembly approving the amendment which has the sole right to determine the mode in which such amendment shall be published and submitted to the electors.</p> <p>(3) Same.</p> <p>Where amendments to the constitution are proposed in a single resolution, the succeeding General Assembly having the power to divide them in its publication and submission to the electors must state the amendments separately in the same form in the act of approval as they were as constituent parts of the resolution proposing them together.</p> <p>(4) Same.</p> <p>The act passed by a preceding General Assembly proposing amendments to the constitution in a single resolution contained a final section providing that the amendment should take the place of certain sections in the constitution, which sections and other inconsistent provisions were annulled:—</p> <p>Held, that the section, had no effect to prevent the approval or publication and submission of the amendments separately, since it was not in itself an integral and necessary part of any of the preceding sections of the proposed amendments, in as much as it would be just as effective if the annulment clause only appeared in the final section.</p> <p>• Held, further, that the section was intended to indicate the effect of the several proposed amendments in annuling certain portions of the existing constitution, but that it did not do so quite clearly and satisfactorily, although its meaning was sufficiently obvious so as not to vitiate the proceeding sections.</p> <p>Held,' further, that, in submitting the amendments separately, the provisions of this section should be separated and form a part, respectively, as they might apply, of the separate acts providing for the publication and submission to the electors of the several amendments.</p>