Volume 30 — Rhode Island Reports

<p>(1) Undisclosed Principal.</p> <p>An undisclosed principal may sue on a contract made in the name of his agent.</p> <p>(2) Undisclosed Principal. Evidence.</p> <p>In an action by an undisclosed principal upon a written contract signed in the name of the agent, evidence is admissible to show that the agent in making the contract was acting for the principal.</p> <p>(3) Warranty. Conditions Precedent.</p> <p>Warranty in an agreement was as follows:</p> <p>“Warranty. It is guaranteed . . . that this machine will do good work when properly handled.</p> <p>“Any part or parts becoming broken or useless through defective workmanship or material, during the first year, will be supplied the purchaser without charge, f. o. b. factory, or purchaser may have the privilege of sending engine to factory, where it will be repaired without charge, provided said purchaser will pay all transportation charges:” — .</p> <p>Held, that a request to charge that the plaintiff was bound by the terms set forth in the warranty as to returning to factory before bringing suit was properly denied, since the warranty was entirely separate and independent of this provision, and the latter in no way constituted an exception to or a limitation upon it.</p>

<p>Bill in Equity for an accounting, and dismissed.</p>

<p>Trespass quare clausum.</p>

<p>(1) Right of Privacy.</p> <p>Declaration in trespass vi ei armds alleged that defendants, dealers in dry goods etc., invaded plaintiff’s right of privacy, in that they published, in connection with their advertisements, in a public newspaper, a picture of plaintiff seated in an automobile, in connection with certain words relating to price and the quality of the garments worn by those represented in the picture, subjecting plaintiff to ridicule, and causing mental suffering:—</p> <p>Held, that, if the right of privacy exists and has been recognized, it must be as a personal tort right. It can not be a right of property. The gravamen of the offence in a violation of the right of privacy is the interference with the seclusion of the individual, and not the publication.</p> <p>If the publication were an ingredient, the proper count would be trespass on the case for an indirect injury to the person, as in libel.</p> <p>Held, further, that a person has no right of privacy for the invasion of which an action for damages lies at common law.</p> <p>líaSTIürthei^^ room in our constitutional theory for any transcendent right or instinct of nature, except as guaranteed by the constitution.</p> <p>The function of adjusting remedies to rights is a legislative rather than judicial one, and up to the present time the legislature of this State has omitted to provide a remedy for an invasion of the right of privacy.</p> <p>The coui-t has always held that it is not at liberty to construe into the constitution new principles which did not exist at the time of its adoption; and when the form of words used in the constitution is borrowed from an older source, it comes laden with its previous meaning.</p> <p>The clauses in the fourteenth amendment to the constitution of the United States, and in the constitution of Rhode Island, Art. 1, § 10, relative to depriving a person of “liberty” etc., were borrowed from the 39th article of Magna Charta.</p> <p>“liberty, ” in the sense used in the constitutions, is not confined to mere freedom from incarceration, but includes the rights to go where one pleases and to earn one’s livelihood in a lawful calling; but the exhibition of a picture does not restrain a person’s movements, curtail his choice of occupation, nor abridge his freedom of contract.</p>

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

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

<p>(1) Procedure. Limiting Number of Witnesses. Judicial Discretion.</p> <p>Upon the trial of a probate appeal, appellant's counsel was, at practically the usual hour-of adjournment, ordered by the court to go on with the case that evening, when he had no other witnesses present, or name to the court the witnesses he would call the next morning, the court stating that he would hold counsel ‘‘pretty rigidly to your number of witnesses to-morrow.”</p> <p>Thereupon counsel named two witnesses. On the following day, counsel offered the testimony of a witness whom he had not named, as to a matter which he had overlooked, and the court excluded the evidence, relying upon the agreement: — ■</p> <p>Held, that, while each case must be decided upon its own special facts and circumstances, and while the court has discretion to limit the number of witnesses upon a particular point, yet this discretion must be so used as not to impair the rights of the parties; there must be no abuse of discretion, and if there is, it is reversible error.</p> <p>Held, further, that the agreement was made under compulsion, and the action of the court was not a proper exercise of judicial discretion.</p> <p>Held, further, that although the testimony of the witness might have been, as to one point, cumulative, yet the party holding the weight of evidence should have the opportunity to bring it to bear upon the jury when it concerns the real issue.</p>

<p>(1) Attorney and Client. Charging Lien. Settlement by Client.</p> <p>Pending the hearing on exceptions, after verdict in his favor, plaintiff in the original action for assault and battery executed a release, under seal, to the defendant in such action, and signed an agreement that such case might be entered "settled,” without the knowledge of his counsel. Before the trial, his counsel took an assignment of plaintiff’s right of action to any judgment which might be rendered, as security for his fees, and gave notice thereof to the defendant.</p> <p>The Superior Court ordered execution issued against such defendant (petitioner), in the name of plaintiff, to the use of his counsel, who had reduced their claim for services to judgment. On petition for certiorari to quash the record of the Superior Court: — •</p> <p>Held, that the assignment of the cause of action was void as against public policy, and that plaintiff could not grant nor his counsel receive any interest therein legal or equitable, by any form of contract or agreement, in relation to an action for a personal tort before the entry of judgment.</p> <p>Held, further, that the charging lien of an attorney extends only to his taxable fees and taxable disbursements, and not to his general claim for compensation, and such lien does not attach until after judgment entered.</p> <p>Held, further, that, since no lien had attached, the record ordering issue of execution should be quashed.</p>

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

<p>(1) Probate Law. Suit on Bond. Assets of Estate. Res Judicata.</p> <p>X. died, by the residuary clause of his will giving his wife, Y., the personal estate during life, with power of sale and reinvestment and use of principal for her support, and upon her decease to his children.</p> <p>Y. was appointed executrix of the will, and deceased leaving a will of whieh</p> <p>Z.was appointed executor.</p> <p>Thereafter S., a son of X., was appointed administrator de bonis non of the estate of X., and filed a bill in equity against Z. as executor of the estate of Y., praying that an account might be taken of the assets of X. received by Y., and which came into the hands of Z, as executor.</p> <p>After hearing, decree was entered that S. recover of Z., out of the estate of Y., $2,865.09, and that Z. turn over all articles of furniture contained in the inventory of Y. as executrix of X. Z., failing to make such payment, was cited before the Probate Court, and decree was entered adjudging him guilty of unfaithful administration, which decree was confirmed on appeal.</p> <p>Thereafter S. commenced the action at bar against Z. and the sureties on his bond, the declaration setting out the bond and alleging that Y. was liable in her lifetime upon a certain indebtedness which was reduced to a judgment against Z. as executor; alleged the neglect of Z. to apply the assets of the estate to the payment of such judgment; and the' adjudication of "unfaithful administration.</p> <p>Z. by plea denied these allegations. By direction of the court the jury found that “the obligation in the plaintiff’s declaration mentioned is the deed of said defendants, ” and returned verdict for the penal sum of the bond: — •</p> <p>Held, that the verdict was not responsive to the issues, which involved the question as to whether there had been a breach of this obligation.</p> <p>Held, further, that the only interest in the bond which S. alleged was as a creditor of Y.</p> <p>Although the court has held in Williams v. Starkweather, 28 R. I. 145, that the decree in the bill in equity was a “judgment” within the meaning of the statute relative to suits by creditors against the bond, and that by virtue of such decree the relation of debtor and creditor had been established between Y. and the estate of X., yet there only the final decree was presented to the court, and here, the whole record in the equity proceedings being made a part of the record in the case at bar, the court has considered the nature of the proceedings which were before the court in said suit in equity:—</p> <p>Held, that from an examination of the record it appears that the suit in equity was a proceeding having for its object an adjudication as to the ownership of the property which Z. found in his possession, which he might properly require before permitting it to pass from his possession.</p> <p>Held, further, that there were neither allegations nor proof of any facts from which an indebtedness from Y. to the estate of X. would arise.</p> <p>Held, further, that the decree was conclusive between the parties, but only to the extent of the issues raised and determined in that suit.</p> <p>Held, further that it appeared from the procedure taken in bringing the bill in equity that it was neither the intention of the parties or of the court to establish an indebtedness on the part of Y. in her lifetime.</p> <p>Held, further, that the suit in equity was for the purpose of tracing the personal property of X. which had not been administered, into the hands of Z., and to obtain a decree to recover the same from Z. This relief S. received, and upon such decree S. could pursue Z., but not upon his bond as executor.</p> <p>Held, further, that property that Y. in her lifetime held in trust, or in which she had merely a life interest, was not assets of the estate, and no act of Z. as to such property would render him or the sureties liable on the bond.</p> <p>Held, further, that the action could not be maintained.</p>

Bill in Equity to set aside a deed and mortgage, and for a reconveyance, and for relief in the nature of specific performance and for an injunction.

<p>Trespass Quare Clausum.</p>

<p>(1) Accident and mistake. Trial.</p> <p>Where counsel neglected to be present on the proper assignment day of the case in the Superior Court, and failed to ascertain that the case had then been assigned, whereby judgment by default was rendered, the mistake is not one of fact entitling defendant to relief under C. P. A., § 471.</p>

<p>(1) Pleading. Special and General Assumpsit.</p> <p>The amount claimed to be due in advance for a membership fee under the terms of a written contract can not be recovered upon a declaration containing only a count in book account, and the common counts, but plaintiff should have declared specifically upon the executory contract.</p>

<p>Proceedings in Equity under C. P. A., § 1160.</p>

<p>Appeal in Equity.</p>

<p>(1) Guardian and Ward. Actions. Certiorari. Amendment.</p> <p>A., while under guardianship, filed a claim against the estate of B. After disallowance of the claim, A. brought suit in his own name against the administrator of B. Defendant having pleaded in abatement, A., by his attorney, filed his motion to amend his writ and declaration so as to make the guardian a party plaintiff, and the. Superior Court granted said motion. It did not appear that the guardian had knowledge of or consented to the proceedings, nor did he appear in the case. On certiorari:—</p> <p>Held, that the suit should have been brought by the guardian in the name of the ward, and it was improperly brought by the ward in his own name, and was improperly amended in his behalf.</p> <p>Qucere, if the unauthorized acts of the ward could be ratified and validated by the guardian.</p>

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

<p>(1) Intoxicating Liquors. Particular Location of Application.</p> <p>Gen. Laws, cap. 102, § 2, as amended by Pub. Laws, cap. 1583, § 1, provides that advertisement of an application for license shall state the “particular location for which the license is requested.”—</p> <p>Held, that a notice stating the location of the place to be “A. B., in Dawley’s block, Main street, Wyoming,” was sufficient, where it appeared that the block was well known, and the only building so designated in that village, and that buildings therein were not numbered.</p>

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

<p>(1) Domestic Corporations are Resident Citizens. Intoxicating Liquors.</p> <p>Corporations created by the General Assembly for the purpose of conducting the liquor business are “ citizens resident within this state " for the purposes set forth in Gen. Laws, cap. 102, § 2, providing that licenses for the manufacture or sale of pure spirituous and intoxicating liquors “ may be granted to citizens resident within this state.”</p> <p>(2) Corporations. Judicial Notice. Construction of Statutes.</p> <p>The court will take notice of acts of incorporation for the purposes of construction.</p> <p>(3) Legislative Construction.</p> <p>If the General Assembly has created corporations for the express purpose of doing business that can only be done by resident citizens, such fact furnishes conclusive evidence of legislative construction, for it is not to be presumed that the legislature acted abortively.</p> <p>(4) Business Corporations. Intoxicating Liquors.</p> <p>A corporation organized to engage in the business of manufacturing, buying, selling, etc., intoxicating liquors, is a business corporation within the provisions of Gen. Laws, cap. 176.</p> <p> (5) Residence of Corporation. </p> <p>The residence of a corporation is created for it by law, and is the state which created it, and cannot be changed by act of the corporation.</p>

<p>(1) Exceptions.</p> <p>A notice of intention to prosecute a bill of exceptions can not take the place of an exception to the decision of a justice of the Superior Court denying a motion for a new trial.</p> <p>(2) Establishing Truth of Transcript.</p> <p>C. P. A., § 494, provides for establishing the truth of the exceptions, when they have been disallowed, “in such manner as the court shall by rule prescribe.”</p> <p>Rule 13 of the Supreme Court provides the procedure upon “ every petition for allowance of a bill of exceptions or for determining the correctness of a transcript of testimony”:—</p> <p>Held, that the truth of exceptions must be established by the ascertainment of-the truth as to the testimony offered and the rulings of the court upon the offer of said testimony, and the truth or lack of truth of the exceptions will appear from the transcript if its correctness is established, but the provisions of C. P. A., § 494, and of rule 13, would not be necessary if the transcript was the only source of information as to its own correctness.</p> <p>Held, further, that, where it appeared that the grounds of disallowance of a transcript were entirely untenable as to the transcript, considered by itself, the way .was still open to establish the truth of the exceptions by establishing the truth as to the proceedings at the trial in the manner provided in section 494 and rule 13, and this right was not defeated by the disallowance of the transcript by the judge.</p> <p>Held, further, that the defendant, not having proceeded by petition verified by affidavit to establish the correctness of the transcript, but having contented himself with an attempt to establish only the truth of the exceptions, left the truth as to the rest of the proceedings at the trial unestablished, and the exceptions, therefore, if established, could not be considered.</p>

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

<p>(1) Convertible Bonds. Stockholders. Equity.</p> <p>A local manufacturing corporation with an authorized capital of $1,000,000, divided into 10,000 shares of the par value of $100, having sold $600,000 of its stock, issued 400 bonds, each for $1,000, secured by mortgage of all its, real estate and machinery. The bonds provided that “ The holder has the right, within the period of three years from the date, to surrender this bond and to receive 10 shares of the capital stock of the par value of $100 each. The mortgage contained a similar covenant and, also “ that during the said period of three years its capital stock shall not exceed one million dollars.” Owing to financial difficulties, the company reduced its capital stock to $10,-000, by reduction of the par value of each share from $100 to $1, and then raised it to $1,000,000, consisting of one million shares each of the par value of $1. This new stock was then offered to the old stockholders in proportion to their holdings, and with the exception of a few shares all the -old stock was surrendered and the sum of $594,000 was paid in cash by the stockholders in return, for which the hew stock was issued to them at par.</p> <p>The directors then declared a dividend from the “ surplus ” of fifty per cent, on the outstanding capital stock, payable five per cent, semi-annually during a period of five years, with the provision that in case of insolvency, bankruptcy, or other winding up of the business before the expiration of the payments of such dividend, the whole of such dividend should fall due but should be payable from the assets, only after the general unsecured creditors should be paid in full, but it should be paid before the stockholders participated in any distribution of the assets.</p> <p>Bill in equity by certain bondholders alleged that the greater part of the “ surplus ” was in lands, buildings, machinery, etc., and a part of the permanent capital; that this action, if valid, created an indebtedness which, with other indebtedness, made the debts exceed the capital stock actually paid in; that it sought 'to prefer the participating stockholders in liquidation to the bondholders; as well as to prefer the same stockholders both in dividends and assets as against the stock, which the bondholders were entitled to receive upon conversion of their bonds; and that the participating stockholders would get the surplus earnings, and the stockholders by conversion would be deprived of these earnings. They offered to convert their bonds and take stock if the dividend was set aside and they could have stock of the par value of $1,000 representing one one-thousandth of the entire capital stock carrying with it the rights of other stock, and asked that the action of the directors be declared null and void, for an injunction, and specific performance:</p> <p>Held, that the bill would be dismissed, since the bondholders, as to the dividend declared prior to their election to become stockholders, were not entitled to the relief sought.</p> <p>Held, further, that the dividend as declared did not operate to prefer the par- ■ ticipating stockholders to the bondholders, and no action of the directors could destroy the first lien upon real estate and machinery, which the bondholders had by virtue of the mortgage.</p> <p>Held, further, that complainants by the tender in the bill waived their right to insist on ten shares, each of the par value of 1100, for each bond.</p> <p>When an option is given to take stock instead of receiving payment of a bond, even when embodied in the contract, it imposes no restriction on the ob- ' ligor in regard to the issue of new stock, although the issue may be on such terms as to diminish the value of the right.</p> <p>It is simply an option to take stock as the stock may turn out to be when the time for choice arrives. The bondholder does not become a stockholder by his contract, in equity, any more than at law.</p>

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

<p>(1) New Action After Expiration of Period of Limitation. Nonsuit.</p> <p>C. P. A. § 256, providing that, if any action duly commenced within the time limited for bringing the same shall be abated or otherwise avoided or defeated by the death of any party thereto, or for any matter, etc., the plaintiff may commence a new action at any time within one year after the determination of the original suit, includes all actions which have been abated, avoided, or defeated without a trial on the merits, and hence includes a termination by involuntary nonsuit.</p>

<p>(1) Contributory Negligence. Verdict Against Law.</p> <p>While plaintiff was carrying material into a building in process of construction, he was injured by the falling of a rafter, which escaped from the hands of the workmen, from accidental causes, because of icy conditions, who were moving it about thirty feet above his head. It appeared that the operations of the workmen on the roof could have been seen, and plaintiff testified that he knew they were engaged there; had heard them working there,but did not look up or take notice:—</p> <p>Held, that, even if, after verdict, plaintiff could be held to have established negligence of the defendant, he was guilty of such contributory negligence, in placing himself, without looking, in a position of obvious danger from objects which were liable to fall, as to bar recovery.</p> <p>Held, further, that the verdict was in this respect contrary to law, but plaintiff was still entitled, under Gen. Laws, 1909, cap. 298, § 2, to a further opportunity to show cause why judgment should not be entered for defendant.</p>

<p>Appeal IN Equity.</p>

<p>(1) Certiorari. Pleading. Motion to Dismiss.</p> <p>On a petition for certiorari, a motion to dismiss will be treated as equivalent to a demurrer, admitting all matters of fact set out in the petition; therefore the court will confine its examination to the allegations of the petition, including so much of a statute as is therein set forth.</p> <p>(2) Certiorari. Parties. Petitioners. Special interest.</p> <p>Owners of real estate and taxpayers of a town or city to be connected by a proposed bridge have a special interest in the subject-matter sufficient to enable them to petition for a writ of certiorari, especially in a case where the attorney general is solicitor for the respondent commissioners under Gen. Laws, cap. 17, § 4.</p> <p>(3) Certiorari. Parties.</p> <p>In proceedings for certiorari seeking to review the acts of a commission for the erection of a bridge, in the acceptance of a bid for such erection, the contractor is not a necessary party respondent.</p> <p>(4) Certiorari. Judicial Acts.</p> <p>A commission appointed for the erection of a bridge; in rejecting and accepting bids for the work, exercises an executive discretion and judgment, not a judicial one; and therefore a petition for certiorari seeking to review such acts ' is not seeking to review the judicial action of the commissioners, and can not be entertained.</p> <p>(5) Constitutional Law.</p> <p>Where there is nothing in a petition for certiorari that raises the question of the constitutionality of an act, the court will not consider it.</p> <p>(6) Presumption of Constitutionality.</p> <p>Until the constitutionality of an act has been directly brought in question, it is entitled to the presumption of constitutionality.</p>

<p>(1) Writ of Error. Parties.</p> <p>No person is entitled to a writ of error, other than a party or privy to the record, or one who has been injured by the judgment and will be benefited by its reversal, or one who is competent to release error.</p> <p>(2) Writ of Error. Parties. Probate Law.</p> <p>At a hearing in a District Court, upon a disallowed claim, counsel for certain residuary legatees, who had filed their objections to the claim in the Probate Court, appeared and examined witnesses, and acted for the executor in claiming jury trial. More than six months after notice to claimant of the disallowance of the claim, the executor entered into an agreement with counsel for claimant (plaintiff) in the Superior Court, amending the writ and declaration, and submitted to judgment for plaintiff. On writ of error, by residuary legatees,</p> <p>Held, that they were neither parties nor privies to the record, and the writ must abate.</p> <p>Held, further, that the executor was the only proper party to represent the estate, and, the statutes having provided the manner in which the estate should be represented, all other ways were excluded.</p>

<p>Appeal from allowance of guardian’s account.</p>

<p>(1) Attachment. Title to Real Estate. Record of Deed.</p> <p>Upon issues as to (1) whether the property in the real estate was in defendant at the time of the attachment, and (2) if not in the defendant at such time, whether plaintiff had notice of that fact at the time of the attachment, where upon the first issue the only testimony offered was that of defendant that he executed a deed to his wife, November 10, 1905, and delivered it to her either November 10 or 11, 1905, long before the subject-matter of the suit arose, and that the deed was not recorded until December 23, 1907, after the date of the attachment, the jury were justified in finding that the property in the real estate was not in defendant at the time of the attachment.</p> <p>(2) Same.</p> <p>Upon issues as to the ownership of real estate attached and the notice to plaintiff as to such ownership at the time of the attachment, the deed of the real estate from defendant to his wife, and testimony as to the delivery of such deed, were properly admitted.</p> <p>(3) Notice to Officer of Corporation, of Material Facts.</p> <p>Where all the negotiations leading to a loan from plaintiff bank to defendant were conducted by M., the vice-president of the bank, and the terms of the loan were arranged between M. and defendant, in these circumstances, facts material to the transaction which came to the knowledge of M. constituted notice to the plaintiff, and it is immaterial whether M. communicated his knowledge to the other officers of the bank, or whether he remained an officer of the bank until the time of the attachment brought upon the note given for such loan.</p> <p>(4) Agency. Notice.</p> <p>Where it appeared that in negotiations for a loan held between an officer of a bank and defendant, one of the questions under consideration was the financial standing and credit of defendant, statements as to the ownership, by defendant, of real as well as personal estate were material to the transaction and constituted notice to plaintiff, and the fact that the loan was not made upon the security of the real estate does not render the statements immaterial.</p> <p>(5) National Banking Act.</p> <p>Although under the banking act a national bank may not loan money upon real estate security given directly to the bank, the fact that the title or security may inure indirectly to the security and benefit of the bank will not vitiate the transaction.</p> <p>(6) Agency. Evidence.</p> <p>Where negotiations for a loan from plaintiff bank to defendant were carried on by M., a vice-president, and as a result the loan was made by the bank, evidence as to what officers regularly had authority to make loans was immaterial; since in this transaction M. was the agent of the bank, whatever may have been the usual procedure.</p>

<p>(1) Error and Appeal.</p> <p>Where original petitioners have withdrawn from a cause by consent of the court, they are no longer parties to the proceeding, and are not entitled to prosecute an appeal.</p>

<p>(1) Mutual Benefit Societies. By-Laws. Corporate Powers.</p> <p>The by-laws of a mutual benefit association, iueprporated under Gen. Laws, cap. 176, § 11, provided that the board of directors should provide ways “for the regular functions of the society’s funds,” and for the security of the money, depositing it either in a bank or in a safe place kept by the treasurer; that all funds'should be deposited in the safe or in such place as the directors should deem best for its safety. On the issue as to the right of the society to invest in real estate:—</p> <p>Held, that the by-laws were restrictions on the possession of the funds by the treasurer, and were not intended to control the corporation respecting the use of its corporate powers as to the method of the investment of its assets; and as the statute conferring the power to invest in real estate was in existence at the time of the making of the articles of association, their agreement contemplated the receipt of this power and the positive provision of the statute conferred it on them.</p> <p>(2) By-Laws Restricting Corporate Powers.</p> <p>By-laws are only a means of regulating corporate powers, not of surrendering or suspending them, and their surrender or suspense will not be implied. There must be an express renunciation of the power, and it is questionable if such a renunciation is within the corporate power.</p>

<p>(1) New Trial. Verdict Approved by Trial Justice.</p> <p>Evidence considered, and held, that case was submitted to jury under suitable instructions, and, there being nothing to indicate an exception to the rule adopted in Wilcox v. B. I. Co., 29 R. I. 292, the verdict, approved by the justice presiding at the trial, ought not to be disturbed.</p>

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

<p>(1) Sales. Agency by Necessity. Perishable Goods.</p> <p>On arrival of car of peaches at destination, buyer examined them, and, finding that they were not as ordered, wired seller, “reject car because quality not as ordered, advise diverting without delay Boston this market will not take this quality satisfactory.” Seller replied, “Car yours care not what you do with it gave you best stock possible as ordered and hold you responsible for amount draft.” Buyer wired, “ Will not accept using best judgment for you forwarded Boston.” Buyer sent car to Boston, to eom-mission merchants, who had previously sold goods for seller, and instructed them to sell the peaches for benefit of seller. This was done, and seller refused proceeds: — •</p> <p>Held, that, the buyer, with the perishable goods in its charge abandoned by the owner, with immediate action imperatively necessary, after notice to the owner, who remained unrepresented, had the right, to protect itself from the freight charges and to prevent the owner from needlessly sacrificing the goods, to act as agent for the seller ex necessitate rei, and was justified in forwarding the goods to be sold for the benefit of the seller, and by so doing did not accept them.</p>

<p>(1) Taxation. Time of Assessment. Rendering Account.</p> <p>Tax assessors gave notice to bring in accounts on September 8, 1903. The time fixed for the assessment by the vote of the town meeting was September 9, 1903:—</p> <p>Held, that the assessment of the tax on September 9, 1903, was invalid. Following Matteson v. Water Co., 28 R. I. 570.</p> <p>(2) Number of Assessors. Majority.</p> <p>Gen. Laws, 1896, cap. 39, § 1, provides that the number of assessors of taxes in towns shall be “ not less than three nor more than seven.”</p> <p>Three persons were duly elected assessors of taxes of a town, and two qualified and passed a vote relative to assessing the tax on the day fixed by the town meeting, and also fixed a time for receiving the accounts of ratable estates. The third member did not qualify until the latter date: — •</p> <p>Held, that the action of the two members was a nullity.</p> <p>Held, further, that the case was not covered by Gen. Laws, 1896, cap. 26, § 4, “all words purporting to give a joint authority to three or more officers or persons shall be so construed as to give such authority to a majority of them,” since there never was a legally constituted board.</p> <p>(3) Poll Taxes.</p> <p>Gen. Laws, 1896, cap. 47, § 1, relative to poll taxes, provides for the assessment “ of one dollar or so much thereof as with his other taxes shall amount to one dollar . . . against every person who if registered would be qualified to vote.”—</p> <p>Held, that the legal ascertainment of the persons qualified to vote by virtue of paying a tax upon real or personal estate is a fact which must precede the legal ascertainment of those liable to be assessed a poll tax, and where the notice given by assessors prior to the assessment of the property tax was invalid, the poll taxes could not be legally assessed.</p> <p>(4) Collectors of Taxes. Suit on Bond.</p> <p>Where poll taxes were not legally assessed, and the tax collector has fully accounted for all such taxes as were collected by him, there was no breach of his bond in the non-payment of the balance of the poll taxes.</p>

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

<p>Probate Appeal.</p>

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

<p>(1) Financial Meeting. Elections.</p> <p>A town meeting held for the imposition of a tax or for the expenditure of money is not an election.</p> <p>(2) Canvassing Voting-Lists for Financial Meeting.</p> <p>While the necessity of a properly canvassed voting-list is as great for a financial town meeting as for an elective meeting, except in those cases where the legislature has specifically so provided,, there is no provision in the statutes for the canvassing of the voting-lists prior to a financial town meeting or the voting upon any proposition submitted to the people.</p> <p>{3) Same.</p> <p>A tax levied and ordered to be assessed by a financial town meeting is not invalidated because there had been no canvass of- the voting-lists prior to the meeting, where there has been no special legislation requiring such canvass.</p> <p>(4) Pleading. Insufficiency of Plea.</p> <p>Plaintiff moved that defendant be required to specify certain facts, alleged in a plea, more fully, which motion was granted and a time fixed for defendant to further plead and plaintiff reply. The plea was not amended, and plaintiff had the case set down for trial. The trial court held that this was a waiver of the objection to the plea as framed, and it not being replied to, its traversa-ble allegations were to be taken as admitted:—</p> <p>Held, error; the ruling of the court being in substance that the plea was too indefinite to require the plaintiff to reply, it should have been considered as constituting no defence.</p>

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

<p>(1) Exceptions in Divorce Proceedings.</p> <p>C. P. A. § 481 (now Gen. Laws, 1909, cap. 298, § 8), provides: “Any person interested in a probate or other appeal, and any party to a civil action, heard on its merits by the superior court without a jury, aggrieved by a ruling, decision or finding of the court upon any issue of fact or matter of law, or upon a motion for a new trial for newly discovered evidence, may except thereto”:—</p> <p>Held, that a petition for divorce was a “civil action” within the provisions of said section, so as to give to a party, aggrieved in the manner therein set forth, the right to take exceptions, which may form the basis of a bill of exceptions under the statutes.</p> <p>(2) Divorce. No Exception after final Decree.</p> <p>The entry of final decree in a divorce case is equivalent to the entry of judgment therein. Therefore exceptions will not lie after the entry of final decree.</p> <p>(3) Construction of Statutes. Remedial Statutes.</p> <p>Statutes in furtherance of the simple and convenient administration of justice are deemed remedial, and are to be liberally construed.</p>

<p>(1) Life Estates. Conveyances.</p> <p>Defendant entered into possession of premises under the following agreement: “ We (lessor and lessee) agree that (lessee) is to continue to live in said house and make it a home for her sister, and without becoming a tenant, until further agreement between said parties”:—</p> <p>Held, that it was apparent that a tenancy of some kind was contemplated by the parties, and from the context it appeared that the words “without becoming a tenant ” had particular reference to the payment of rent, and were not used in the strict technical sense given the word “tenant.”</p> <p>Held, further, that, the language of the agreement was appropriate to create a life estate, and the fact that technical words of grant were lacking was not material, in view of the modifications governing conveyancing now in force.</p> <p>Held, further, that although the phraseology of the instrument was merely that of an agreement, the intent being clear to convey the possession and right of occupancy of the premises until the time when a mutual agreement to the contrary should be reached between the parties, all mere form being done away with by the statutes, it was sufficient to convey a life 'estate to lessee.</p> <p>Distinguishing Johnson v. Johnson, 13 R. I. 467.</p>

<p>Criminal Complaint.</p>

<p>(1) Constitutional Law. Practice of Dentistry. Police Power.</p> <p>Follows State v. Rosenkrans, 30 R. I. 374.</p>

<p>(1) Gangways. Bight of Way. Construction of Deed.</p> <p>X., being the owner of a tract of land bounding southerly on Smith street, comprising two lots numbered 69 and 70, together with certain premises adjoining said lots on the north, conveyed the southerly 88 feet of lot 70 to Y. X. and Y. thereafter entered into an agreement reciting that “considering that it will be a benefit to the owners of said two lots of land to lay out a twelve feet gangway between said lots” do for themselves, their several heirs, executors, administrators, and assigns, covenant to establish such gangway “to be kept open for the joint use and benefit of X. and Y., their heirs and assigns, and not to be shut up or have any buildings erected thereon, without the consent of X. and Y., their heirs or assigns.”</p> <p>The gangway was established of a width of 12 feet and extending back from Smith street northerly for 88 feet.</p> <p>At this time X. owned a barn on the premises adjoining the lots on the north; there was nothing on the lots for which the way could be used, and it was used from its creation to reach this barn, and was the only means of reaching it. There was nothing on the land of Y. for which it could be used.</p> <p>By mesne conveyances, defendant acquired the interest of X.in the northerly 12 feet of lots 69 and 70, and the premises adjoining on the north (all designated as lot 6), with a right to use the way from the south side thereof to Smith street. Complainants had acquired the interest of Y. in the southerly 88 feet of lot 70, and of X. in the southerly 88 feet of lot 69, this last conveyance being subject to the right of way granted respondent:—</p> <p>Held, that the agreement was for the benefit of the premises owned by X. and Y., and it was to be determined, from the facts and circumstances of the case, just what those premises were.</p> <p>Held, further, that the right of way was not confined to such portions of lots 69 and 70 as X. then owned, but was appurtenant to the other land owned by X. contiguous to said lots, and was now appurtenant to the whole of lot 6.</p> <p>(2) Construction of Deed.</p> <p>In construing a written instrument the court will consider all the facts and circumstances existing at the time of its execution, such as the relations of the parties, the nature and situation of the subject matter, and the apparent purpose of making the instrument.</p> <p>(3) Construction.</p> <p>This court, in construing deeds, wills, and instruments, has always considered all the facts and circumstances, the relations of the parties, the location of. their estates, and given great weight to the construction placed by the parties themselves by their acts and conduct.</p> <p>(4) Construction.</p> <p>Where an instrument creating a right of way does not define at all, or when ¿pplied to existing facts and circumstances does not define clearly, the premises to which it shall be appurtenant, the subsequent use of the way by the parties will be almost conclusive as to the extent and exact limits of the dominant estate.</p>

<p>(1) Certification of Constitutional Question. Record.</p> <p>Under the provisions of C. P. A. § 474 (now Gen. Laws, 1909, cap. 298, § 1), “Whenever in any action or proceeding, civil or criminal, pending before any court, the constitutionality of an act of the general assembly shall be brought in question upon the record, the court shall forthwith certify the question to the supreme court to be heard and determined," whenever the constitutionality of an act is clearly questioned by the allegation of any pleading, or by any other formal objection filed in the case, the constitutionality is “brought in question upon the record,” and whenever, thereafter, this state of the record is called to the attention of the court, it is its. duty to at once certify the question in the form in which it has been raised by the parties.</p> <p>Where the unconstitutionality of an act was alleged in a bill in equity, and six days after filing of the bill and before filing of pleadings by one party, and before determination of a demurrer filed by other parties, the complainant, by motion, called to the attention of the court the constitutional objections, the court properly certified the questions forthwith.</p> <p>(2) Constitutional Questions.</p> <p>It is not the intent of the statute that the court shall pass upon the question, of the constitutionality of an act that is not germane to the case in which it is raised; or in a case clearly without standing in court, or when the determination of the question is entirely unnecessary. Whether a constitutional question is properly presented and whether its determination is; necessary for the disposition of the case are proper subjects for consideration at the time of hearing upon the question.</p> <p>(3) Constitutional Questions. Form of Question.</p> <p>A constitutional question is raised by a party, and he is entitled to have it. considered in just the form in which he brings it upon the record, and it is his duty to make the objection .with sufficient certainty to enable the Supreme Court to pass upon it. The lower court should not attempt to reform the question.</p> <p>(4) Certification of Constitutional Question. Form of Question.</p> <p>Constitutional questions need not necessarily be cast in the form of interrogatories.</p> <p>Whenever a party has made it clear upon the record that he challenges the constitutionality of an act, and clearly indicates the particular portion of the constitution of this State, or of the United States, to which he claims the act is repugnant, naming the article and spction, and the particular provision of a section which he claims are violated, then he has brought the constitutionality of the act in question upon the record with sufficient particularity.</p>

<p>Petition for Relief under Gen. Laws, 1909, cap. 297, § 3.</p>

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

<p>(1) Certificate of Title. Evidence. Covenants.</p> <p>In an action of trespass and ejectment, the admission of a certificate of title given to plaintiff (mortgagee) by the mortgagor, at the time of the execution of the mortgage, does not constitute ground for reversal, since it was merely a re-affirmation of the covenant against gncumbrances in the mortgage deed.</p> <p>(2) Statute of Limitations on Right of Redemption After Tax Sale.</p> <p>The right to question the validity of a tax sale is not barred after one year, under Gen. Laws, cap. 48, §§ 15 and 16 (now Gen. Laws, 1909, cap. 60, §§ 17 and 18), but these provisions affect only the right of redemption.</p>

<p>Writ of Error.</p>

<p>(1) Certificates of Nomination. Nomination Papers. Elections.</p> <p>Gen. Laws, 1909, cap. 11, provides for “nomination of candidates in convention or caucus,” evidenced by “ certificates of nomination,” and for “nomination of candidates by individual voters, ” contained in the “nomination papers ” signed by the voters.</p> <p>Section 31 of an act to incorporate the city of Cranston provides that at elections under the act the provisions of chapter 11 of the Gen. Laws of 1909 shall be observed, in so far as they are not inconsistent.</p> <p>■Cap. 11, §18 of the General Laws provides that “Certificates of nomination and nomination papers for officers referred to in . . . this chapter shall be filed at least fifteen days . . . previous to the day of the election for which the candidates are nominated.”</p> <p>Section 33 of the act incorporating the city of Cranston provides, “ All certificates of nomination of candidates to be voted for at said first election shall be filed with the town clerk at least nine days before said first election: ”—</p> <p>Held, that “certificates of nomination” and “nomination papers” were not synonymous terms, but'were separate and distinct, and therefore only “ certificates of nomination ” were provided for by the act, leaving “ nomination papers” to be filed under Gen. Laws, 1909, cap. 11, § 18. Johnson and Sweetland, JJ., dissenting.</p>

<p>(1) Poor Debtor’s Oath. Application Before Arrest.</p> <p>Where execution has issued in an action of deceit, although debtor has not been taken under it, he may make application for relief under Gen. Laws, 1909, cap. 326, § 17, for the relief of poor debtors.</p> <p>The benefits of this act are conferred upon all except those excluded by section ten thereof, and an action of trespass on the case for deceit is not among the excepted actions.</p> <p>(2) Poor Debtor’s Oath. Application Made to Whom.</p> <p>The time within which a defendant may apply for the relief to the court before which any action is pending, under section 12 of the act is limited to the period preceding the issuance of execution against him; hence, after execution has issued, a defendant may apply to a magistrate under the provisions of section one of said act.</p>

<p>Petition for Divorce.</p>

<p> Divorce. Exceptions to Decision Denying Petition. </p> <p>A petition for divorce was heard and denied, and petitioner moved to reinstate case and for further hearing, which was denied, and petitioner excepted:—</p> <p>Held, that the decision denying the petition was the decision to which exceptions should have been taken to bring the cause before the Supreme Court, under Gen. Laws, 1909, cap. 298, § 10.</p> <p>Held, further, that no exception could be taken to the decision denying the motion to re-instate, since no right was determined by its granting or • refusal.</p>

<p>(1) Town Officers. Election of Overseer of the Poor in Town of Cumberland. Statutes.</p> <p>By virtue of special legislation, Public Laws of 1856: “An act dividing the town of Cumberland into districts for the purpose of voting,” the overseer of the poor of that town is required to be elected by the town council, and not by the electors in town meeting.</p>

<p>(1) Taxation. Describing Separate- Parcels. Land in Two Towns.</p> <p>X. was seized of lot 26 on the Arlington Heights Park Plat, which lot was situated partly in the city of Providence and partly in the town of Cranston. The tax, assessed by the assessors of Cranston was for “ Lot 26 — Arlington Heights Park Plat.” The deed of the tax collector, after sale for nonpayment of the tax purported to convey “That lot of land situate in the town of Cranston known and described as lot 26 on the Arlington Heights Plat”:—</p> <p>Held, that the assessment as made was of the whole lot in Cranston, although only a portion of it was situated there.</p> <p>Held, further-, that, if less than the entire lot on the plat was intended, it was not only practicable, in the language of Gen. Laws, 1896, cap. 45, § 4, as amended by Pub. Laws, cap..920, to describe such portion, but, inasmuch as the statute requires a description of each tract or parcel assessed, the court can not assume that less than the entire lot was so assessed.</p> <p>Held, further, that, the title being defective, grantee under such tax deed could not maintain ejectment proceedings against those in actual possession of the premises.</p>

<p>(1) Suretyship. Bonds to Release Attachment. Change of Parties.</p> <p>A surety on a bond to release property attached in the hands of a garnishee is not discharged from liability thereon, by reason of changes made in parties defendant by leave of court; since the bond is subject to the provisions of law existing in reference to the conduct of the action, as determining the scope and effect of the obligation thereby assumed.</p> <p>Since the law authorizes changes of parties to be made in an action in which a bond of this nature is given, without impairing the obligations of the bond, such obligations are entirely different from the ordinary obligations assumed by a surety.</p>

<p>(1) Replevin. Waiver of Defects.</p> <p>Irregularities and defects in a replevin writ and bond are waived by proceeding to trial on the merits without objection.</p>

<p>(1) Trustee’s Bill for Construction of Will, Prematurely Brought, When.</p> <p>Where none of the questions propounded can arise during the lifetime of the cestui, and may in fact never arise, a trustee’s bill for the construction of a will is prematurely instituted and will be dismissed.</p>

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

<p>(1) Probate Law. Sale of Beal Estate to Pay Debts.</p> <p>On the same day that a Probate Court allowed the first account of an executrix, it also ordered a sale of the real estate to pay'debts:—</p> <p>Held, that the decree ordering the sale was valid; following Jacochs v. Paterson, 18 R. I. 751.</p> <p>Held, further, that the Superior Court properly proceeded with the trial of the appeal from the decree ordering the sale while an appeal was also pending from the decree allowing the. account of the executrix.</p> <p>(2) Probate Law. Evidence. Sale of Beal Estate to Pay Debts.</p> <p>On an appeal from decree of a Probate Court ordering a sale of real estate .of decedent for the payment of debts, the account of executrix, as allowed by the Probate Court, was properly admitted in evidence for the purpose of showing that the personal estate would be insufficient for the payment of debts, thus requiring the sale of the real estate.</p>

<p>(1) Police Officers. Removal. Charges. Certiorari.</p> <p>Public Laws cap. 1290, January session, 1905, provides that a police officer of the town of Warren shall be subject to removal by the council at any time for misconduct or incapacity of such a character as may be deemed a disqualification for office, upon charges in writing of which the officer shall have had notice and opportunity to be heard:—</p> <p>Held, that a charge that the officer “ has shown such incapacity in carrying on the business of said office, and in the performance of the duties thereof, as to disqualify him for office,” was insufficient to apprise the officer of the ground upon which his removal was sought so that he might prepare his defence.</p> <p>Following Reynolds v. Mayor of Pawtuchet, 23 R. I. 370.</p> <p>Sweetland, J., dissenting.</p>

<p>(1) Wills. Devise in Lieu of Dower. Acceptance of Same.</p> <p>Where the disposition of his property under the terms of the will negative any ' intention on the part of testator to give the real and personal estate therein devised and bequeathed to his widow, in addition to her dower, the widow, not having, within the time limited by Gen. Laws (1896), cap. 203, § 21, signified in writing her non-acceptance of the provisions of the will, must be deemed to have accepted them in lieu of dower.</p> <p>(2) Wills. Specific Bequests.</p> <p>Testator bequeathed to his widow one-half of all money in savings banks and the other half to two daughters, and by another clause provided that “I ask him (executor) to see that my grave is'lined with stone slabs. The money for which as well as for his work to come out of my savings bank money before being divided”: — •</p> <p>Held, that provision was thereby made, not only for the cost of lining the grave, but for the fees for the services of the executor in settling the estate, and that therefore the widow’s share of the money was subject to such expenses, but that otherwise her part of the personal property was not subject to the debts of the deceased, his funeral expenses, and charges of administration.</p> <p>(3) Wills. Sum Paid for Compromise, Expense of Administration.</p> <p>Pending an appeal from the probate of a will, a compromise was entered into by the parties and approved by the court:—</p> <p>Held, that the sum paid by way of compromise might properly be considered as a part of expenses of administration of the estate, and therefore should be paid with other like expenses and from the same sources.</p> <p>(4) Rules for Payment of Debts, Expenses, etc.,</p> <p>Rules established in Martin, Petitioner, 25 R. 1.1, for the payment of the debts, funeral expenses, and charges of administration, approved.</p>

<p>(1) Evidence.</p> <p>In an action for damages occasioned by the collapsing of a structure erected by defendants, Q. “What in your judgment would you say about the building, whether it was proper or not to build a building as that building was built, with only those sticks stuck in the ground?” was properly excluded, the witness haying said nothing about “ sticks stuck in the ground, ” and no exhibit of any kind being introduced at the time purporting to represent such a building for the purpose of giving the jury an idea of what was meant; and further, since it was not an hypothetical question, based upon previous testimony.</p> <p>(2) Evidence.</p> <p>Evidence should be contained in the testimony of a witness; not found in the questions of counsel.</p> <p>(3) Evidep.ce.</p> <p>A question to a witness as to whether he gave orders, at the time of an accident, for the moving of a portion of the wrecked structure was properly admitted as cross-examination of his statement that he did not have general authority.</p> <p>(4) Building Construction. Contracts. Reguests to Charge.</p> <p>In an action for damages occasioned by the collapsing of a structure, erected by defendant, request to charge that if the jury found that defendant was employed by plaintiff to construct a coal wharf under certain plans and specifications, and on completion the same gave way, then defendant would be liable for all reasonable expenses in placing the plant in the condition that it was originally intended it should be according to the plans and specifications, was properly refused; since it does not include a statement that the giving way was a necessary consequence of the failure of defendant to comply with the plans and specifications, nor does it state that plaintiff was free from fault or negligence in the premises.</p> <p>(5) Same.</p> <p>Another request to charge that if the jury found defendant was employed to construct the wharf under certain plans and specifications, and was fully informed as to the uses to which it was to be put, and the load that would be placed thereon, and with such information drew plans and specifications, and represented that the structures would carry the load, and the same gave way, and became unfit for the uses to which it was understood that they were to be put, then defendant would be liable for all reasonable expenses plaintiff was put to in placing the plant in the condition that it was originally intended it should be, in accordance with the plans and specifications, and in accordance with the conversation between the parties preliminary to entering into the contract, if the conversations were found to be as claimed by plaintiff and formed a part of the contract, was properly refused; since it did not state that the failure of the structures was in no way due to the negligence of plaintiff, and furthermore, because it is objectionable in that it proposed to submit a question of law to the jury, viz., • whether a certain conversation, preliminary to entering into a contract, formed a part thereof.</p>

<p>(1) Statute of Limitations. Plaintiff a Non-Resident.</p> <p>In an action brought in this State, upon a debt contracted in a foreign jurisdiction, of which plaintiff has always remained a resident, but defendant has continuously for more than six years after the cause of action accrued, and prior to the bringing of the action, been a resident of this State, the statute of limitations is a good plea in bar, although the debt is not barred under the laws of the State where it accrued.</p>

<p>(1) Electric Railways. Excessive Speed. Negligence.</p> <p>In the absence of statute or ordinance regulating the speed of electric cars, it is nevertheless true that they may be operated at an excessive speed, depending upon the circumstances. A rate of speed allowable under certain circumstances would be grossly excessive under others.</p> <p>(2) Same.-</p> <p>Where a declaration charged excessive speed of an electric car, under circumstances set out therein, a request to charge the jury that there was no evidence that the car was proceeding at an unlawful or excessive speed was properly refused.</p> <p>(3) Negligence. Electric Railways. Common Traveling Pace.</p> <p>A count alleging that a car was operated at 35 miles an hour, and later that it was operated at a rate of speed “greater than a common traveling pace,” does not justify the conclusion that the count is based upon Pub. Laws, cap. 925, amending Gen. Laws, 1896, cap. 74, § 5 (of riding and driving in the streets of Providence, Newport, etc.), there being no clear indication that it was based on said statute, and other circumstances negativing such conclusion.</p>

<p>Bill in Equity on facts fully set out in opinion.</p>

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

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

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

<p>(1) Master and Servant. Assumption of Obvious Risk.</p> <p>Declaration alleged that plaintiff was employed as a repair man working in a pit connected by a passageway six feet wide, with a second pit; that said passageway was covered by a removable floor, one of the planks of which was defective in that it was warped, so that if one corner was depressed the diagonal corner would rise, and when the pressure was removed the plank would regain its normal position by its own weight; which defect was unknown to plaintiff; that in the course of his employment he placed a “bearing” on the defective plank, and a fellow-servant stepped upon the opposite corner of the plank, raising the plank, and throwing the “ bearing ” upon plaintiff, injuring him:—</p> <p>Held, that plaintiff for his own convenience placed the “ bearing ” in a passageway, and on a removable flooring made to walk upon and not designed to be used as a shelf;</p> <p>Held, further, that, from his nearness to the plank, his opportunity for observation of its condition was perfect, and its condition must have been seen, had he looked at it; and from the simplicity of its construction, plaintiff assumed the risk of its obvious imperfections.</p>

<p>(1) Poor Debtor’s Oath. Trespass on the Case. Pleading.</p> <p>Upon petition to take the poor debtor’s oath, under Gen. Laws, 1909, cap. 326, it is too late for a creditor, after suing out a writ in an action of trespass on the case, and taking execution in the same form, to claim that the action should be treated as one of trespass.</p> <p>(2) Poor Debtor’s Oath. Action of Trespass on the Case.</p> <p>A defendant being imprisoned for debt under execution in an action of trespass on the case is entitled to apply to take the poor debtor’s oath under Gen. Laws 1909, cap. 326, such action not being one of those excepted in section ten of said chapter.</p>

<p>(1) Motor Vehicles. Lights. Statutes. Uncertainty.</p> <p>Gen. Laws 1909, cap. 86, § 16, provides, that “Every motor vehicle while in use on the public highways»shall display on the rear of said vehicle a lamp so placed that it shall show a red light from the rear and a white light at the side, etc.”:—</p> <p>Held, that the language of the statute was equivalent to the statement that no motor vehicle should be used unless the prescribed lights were properly displayed :• — ■</p> <p>Held, further, that the statute by implication designated the person in control of the vehicle at the time of the commission of the offence as responsible for the violation of its provisions.</p>

<p>(1) Certiorari. Guardian and Ward. Action by Ward in own Person Abatable, but Amendable.</p> <p>Where a person of full age, under guardianship, filed in his own person, in a Probate Court, a claim against an estate, and within six months after dis-allowance of the claim brought suit against the administrator, also, in his own person, the Superior Court had jurisdiction to grant,.the motion of the guardian for leave to intervene and to amend the process and declaration, although such motion was made after the expiration of the time prescribed by statute for instituting action against an administrator.</p> <p>The acts of a ward not prohibited by law, when beneficial to him, are legal, and the claim of the ward was properly filed by him in the Probate Court.</p> <p>The suit by the ward was not a nullity, but one capable of being ratified and validated by the guardian, if in his opinion for the benefit of the ward, and being brought within the statutory period, and having been ratified by the guardian, although originally abatable as it was brought, under the ample powers of amendment contained in Gen. Laws 1909, cap. 285, § 4, the court had authority to permit the amendments to be made.</p>

<p>(1) Cemeteries. Power of Town Council to Regulate Burials.</p> <p>Gen. Laws 1909, cap. 107, § 18, provides that “The town council of any town may prohibit burials in the compact or thickly populated parts of such town, and may make such by-laws and ordinances relating to burials and the use of grounds for burials in such town as they may think necessary for preserving the health thereof, and enforce such ordinances, ” etc.</p> <p>A church corporation by deed, dated June 12, and recorded July 31, 1909, purchased certain land, which it dedicated as a cemetery July 18, it being in the thickly settled part of the town.</p> <p>August 13, 1909, the town council passed an ordinance, forbidding the establishment of a cemetery without a permit from the council, and January 14, 1910, passed a second ordinance prohibiting the burial of any body within the territory, where the cemetery in question was located, without permission of the council, excepting from its provisions two specified cemeteries:—</p> <p>Held, that the power of the legislature to delegate to municipal corporations authority to regulate burials and burial places was well settled, and the church must be held to have purchased the land with knowledge of the law.</p> <p>Held, further, the fact that the ordinance provided that burials should take place in only two places did not make it unreasonable in the absence of proof that there were no 'other localities, outside such limit, accessible for such purposes.</p> <p>Held, further, that the council had the right to pass such ordinances, which were reasonable, proper, and within its powers:—</p> <p>Held, further, that the ordinance of January 14, 1910, was not unconstitutional because of being unreasonable, or making an unjust discrimination.</p> <p>(2) Town Councils. Boards of Health. Review of Action.</p> <p>A town council is ex-officio a board of health, and also vested with special authority to regulate burials, and, being vested with discretion in these matters, the court will not review its action where it is clearly within the powers conferred by statute.</p>

<p>Indictment for murder.</p>

<p>Habeas Corpus.</p>

<p>(1) Wills.</p> <p>Testamentary devise, as follows: — “I give devise and bequeath unto my granddaughter X, the residue of my estate, to her, her heirs and assigns forever; if the said X should die without leaving living issue, born of her body, then in that case I give devise and bequeath my said estate to my heirs at law.” X. died intestate without leaving living issue, Z. being her sole heir at law:—</p> <p>.Held, that X. took a defeasible estate in fee which, upon her death, without issue, passed to the heirs of the testator by way of executory devise.</p> <p>Held, further, that the devise contemplated a definite, and not an indefinite, failure of issue on the death of X., and was not void as in violation of the rule against perpetuities.</p> <p>Held, further, that the heirs of testator were to be determined as of the date of the death of X.</p>