Volume 31 — Rhode Island Reports

<p>(1) Equitable Estates in Fee Tail. Barring the Estate Tail.</p> <p>Trustees were directed by will to stand seized of the trust estate during the lives of testator’s three children, and the survivors of them, equally for the benefit of the children, the property to be held, and the income to be paid to the children during life, and upon the death of either, to convey such portion to his or her lineal descendants: and if no lineal descendant, then equally to the survivors of the children of testator, or their lineal descendants; and in case of the decease of all of the children of testator without issue, to his heirs-at-law.</p> <p>X., one of the children, conveyed by deed to complainant, in fee-simple, all of her interest in the trust property, stating her intention to bar the entail, under the provisions of Pub. Laws, cap. 1346, of 1906. On bill seeking a conveyance in fee, to complainant, of the legal title, free from the trust:-—</p> <p>Held, that the opinion in Paine v. Sackett, 27 R. I., 300, holding that the titles of the beneficiaries under the will were equitable estates-tail, was res judicata, in this case.</p> <p>Held, further, that the bill sufficiently set forth the claim of res judicata, but even if it did not it was amendable in this respect.</p> <p>Held, further, that it was not affected by the fact that no final decree had been entered in the former case.</p> <p>(2) Barring Equitable Estate-Tail.</p> <p>The English doctrine of barring an equitable estate-tail has never been followed in this country, and in this State authority must be found, if at all, in statutory enactment.</p> <p>(3) Barring Equitable Estates-Tail. Res Judicata.</p> <p>The case of Paine v. Saclcett, 27 R. I. 300, relating to the effect of the statutes in force at the time the will went into effect and subsequently down to the filing of the amended Bill in that case, as to the barring of equitable estates in fee-tail, is res judicata, in this case, so far as the statutes in their then form are concerned.</p> <p>(4) Barring Equitable Estates-Tail. Constitutional Law.</p> <p>Pub. Laws, cap. 1346, of 1906, re-enacted as Gen. Laws, 1909, cap. 262, § 16, validating conveyances of equitable estates-tail, by deed in common form in which the intention is expressed of barring the entail, made since Jan. 31, 1896, and providing that equitable estates-tail in possession or remainder and all remainders and reversions expectant thereon, may be barred in the same manner as legal estates-tail, is broad enough to cover the deed of X. to the complainant.</p> <p>Such statute is clearly retroactive, and, so far as it attempts to authorize the barring of equitable estates-tail, and all remainders and reversions expectant thereon,-created and in existance, prior to the passage thereof, is unconstitutional and void, as being in violation of Cons. R. I. art. I § 10, and of Cons. U. S. art. XIV of amendments.</p> <p>Blodgett and Sweétland, JJ, concurring.</p>

<p>(1) Conditions Subsequent. Equitable Interests. Wills.</p> <p>X. conveyed premises to Y., with condition “it is expressly understood that the premises is for the specific purpose of a blacksmith and wheelwright shop; the said (grantee) his heirs and assigns shall not convert the shop or building that may be erected to any other purpose than here specified (reciting various purposes) and no other purpose whatever, and the said grantee for himself, and his heirs and assigns promises to reconvey said estate to grantor, his heirs executors and assigns in case of any violation of the foregoing provisions.”</p> <p>The lot came by mesne conveyances to respondent, who knew, upon acquiring title, of the conditions. ’</p> <p>X. died, devising to complainant, his son, all of said tract of land excepting that part which he had conveyed to Y., together with all his interest in the lot conveyed to Y. On bill praying for a conveyance to complainant from respondent, or for an injunction, for breach of conditions:—</p> <p>Held, that, whatever may have been the legal interest remaining in X., he obtained an equitable interest to demand a conveyance for breach of the restrictions, which he had the right to devise.</p> <p>Held, further, that a contingent equitable interest in land is devisable under Gen. Laws 1896, cap. 201, § 23 (1909, cap. 252, § 23), and might also have passed by devise prior to the enactment of that chapter.</p> <p>(2) Specific Performance. Forfeitures.</p> <p>The right to specific performance is not absolute, but rests in the discretion of the court.</p> <p>Equity will not decree a forfeiture.</p> <p>Held, that, under the circumstances, to decree specific performance would be unreasonably to oppress the respondent, and would violate equitable principles.</p> <p>(3) Injunctions. Restrictions.</p> <p>Held, further, that complainant was entitled to an injunction, to restrain violations of the restrictions.</p> <p>Held, further, that it was not necessary that the restriction should appear by express language to be for the benefit of the land, the circumstances of the case establishing that fact, as well as the presumption of law being that it is for the benefit of the remaining land.</p> <p>(4) Laches. Limitations. Waiver.</p> <p>Held, further, that complainant’s right was not barred by laches or the statute of limitations, and that he had not waived the breach of the condition.</p> <p>A waiver of a condition as to the use of a building in one respect will not prevent an insistence upon the restriction to prevent a violation of the condition by other uses of the building.</p> <p>Semble: If it had been necessary to determine as to the legal nature of the restriction in the deed, the court would be warranted in finding that the provision was a condition; that there remained in X. the right of re-entry, which interest was devisable under Gen. Laws, 1896, cap. 201, § 23 (now Gen. Laws, 1909, cap. 252, § 23), and, by some authorities, at common law.</p>

<p>{1) Bills and Notes. Principal and Agent. Banks. Forgery.</p> <p>In action on a note, signed by the treasurer and countersigned by the president of defendant, which was a second renewal of an original note identical in form, defendant contended that the signature of the president was a forgery (which fact was found by the trial court), and it appeared that the treasurer was, during all the time from the discount of the first note, a defaulter from defendant in an amount greater than the face of the note; that the note in suit was taken from the back of the note book which contained no stub corresponding to it, and that the president had been accustomed to countersign notes in blank at the request of the treasurer. Plaintiff took the note in good faith.</p> <p>The entire financial management of defendant was in the hands of its treasurer. It was a large borrower of money, and the treasurer carried on the actual transactions at the banks, received the money, attended to renewals, and also personally passed upon the necessity of negotiating loans and decided in what banks the deposits should be made.</p> <p>He had personally negotiated at least ten prior notes with plaintiff bank, all of which were paid at maturity from defendant’s funds.</p> <p>The net proceeds of the original note of $5,000, of which the note in suit was a second renewal, were paid to the treasurer, in the form of a check to the order of defendant, which check was deposited to its credit to meet a valid note of the defendant, and was so used:—</p> <p>Held, that, being made in Massachusetts, payable in that State, the decisions of that State would control, as to the authority of the treasurer in that State, and defendant would be bound by his acts.</p> <p>(2) Bills and Notes. By-Laws. Principal and Agent.</p> <p>A by-law of defendant provided that “The president shall with the treasurer, countersign all notes that may be given by the corporation:”—</p> <p>■Held, that, the note containing no provision that it should be invalid unless signed by both officers, and there being no such provision in the by-laws, and being presented to the plaintiff by the treasurer in person, as he had previously presented the prior notes, thus affirming the genuineness of his own signature, defendant was liable.</p> <p>Held, further, that, owing to the method of countersigning notes in advance, the counter-signature of the president might have been omitted without affecting the validity of the note.</p>

<p>(1) Contracts. Option. Forfeiture. Rescission.</p> <p>Defendant gave a written option of purchase of the trust property to the X. Co., to be accepted on or before November 1,1906, providing that $5,000 should be paid at the time of acceptance and balance of $35,000 on or before March 1, 1907; all sums paid to be forfeited if balance not paid according to conditions; but if paid by March 1, 1907, the defendant to give a deed conveying premises in fee-simple; the X. Co. to have the right of occupancy until forfeiture. The fact of defendant’s incomplete authority was known to the X. Co. at the time it secured the option. November 1, the X. Co. paid $1,000, and time was extended to November 15, and on that date, it was agreed in writing that the defendant would, on payment of $40,000 by March 1, 1907, convey the premises in fee-simple; $5,000 to be paid upon November 15, with privilege of occupancy until forfeiture; all money paid before March 1, 1907, to be forfeited upon failure to make full payment; the defendant agreeing upon failure to deliver a clear title for more than 30 days after tender of payment, that he would repay all money received.</p> <p>The X. Company paid $4,000, making the installment of $5,000. On March 1, no further payment having been made, notice to quit was given the X. Company, and on March 9 the defendant submitted a proposition to the X. Company for an option for $40,000, to be paid on or before April 15, 1907,. which was accepted by the X. Company, March 16.</p> <p>May 20, defendant filed petition in Superior Court for leave to sell the property, and decree was entered authorizing sale June 28, 1907; July 2, defendant tendered deed in fee-simple and demanded payment of the $40,000, and the money was paid July 3. From November 19, 1906, the date of the $4,000 payment to July 3, 1907, the X. Company had never tendered payment of the purchase money and never demanded a deed, and they had been in actual continuous occupancy of the premises.</p> <p>•On action brought by the X Company to recover the payments of $1,000 and $4,000, plaintiff contended the agreement of November 15, 1906, was void for want of mutuality; that defendant, by reason of inability to convey a clear title March 1, 1907, was barred from declaring a forfeiture of the deposit; and that, by reason of inability of defendant to convoy a clear title on March 1, 1907, plaintiff was entitled to recover back the deposit:—</p> <p>Held, that the contention of lack of mutuality was overcome by the action of the parties in part performance of their respective obligations.</p> <p>Held, further, that the agreement must be construed that the price was to be tendered and deed demanded, and then defendant had 30 days to complete title; but the money must be tendered or paid by plaintiff, on or before March 1, 1907.</p> <p>Held, further, that the covenant for the forfeiture of the $5,000 was binding on plaintiff.</p> <p>Held, further, that the occupancy of the premises by plaintiff was a consideration for the $5,000 payment.</p> <p>Held, further, that the continued occupancy by plaintiff, after March 1,1907, ( was conclusive that the contract was not rescinded on that date.</p>

<p>(1) Evidence.</p> <p>A party is not injured by the exclusion of testimony as to a conversation, when his testimony to the same effect as to a conversation between the same parties at a different place was admitted.</p> <p>(2) Credit Statement. Evidence.</p> <p>A. was doing business as A. & Co.:—</p> <p>Held, that a statement made to A. & Co., for the purpose of obtaining credit 'made .by a partner of defendant, who was sent by him to buy goods on credit, was properly admitted in an action of deceit brought by A. based on false statements contained in such statement.</p> <p>(3) Liability of Partner in Deceit.</p> <p>A partner is liable in deceit for false representations made by another partner, although without his knowledge or authority, when made in the course of the partnership business.</p>

<p>(1) Construction of Statutes.</p> <p>The object of all construction and interpretation of statutes is to ascertain the meaning and intention of the legislature, that the same may be enforced. This meaning and intention must be first sought in the language of the statute, which must be interpreted literally, but if the language is ambiguous or is fairly susceptible of two or more interpretations, the intended meaning must be sought by the aid of all pertinent and admissible considerations; but the court can not, merely because it has a choice between two constructions, substitute for the will of the legislature its own ideas as to the justice, expediency, or policy of the law.</p> <p>(2) Construction of Statutes.</p> <p>Every statute is to be construed with reference to its intended scope, and the purpose of the legislature in enacting it, and where the language used is ambiguous, or admits of more than one meaning, it is to be taken in such sense as will conform to the scope of the act and carry out its purpose.</p> <p>(3) Same.</p> <p>Every statute is understood to contain by implication, if not by express terms, all such provisions as may be necessary to effectuate its object and purpose, or to make effective the rights, powers, privileges, or jurisdiction which it grants, and all such collateral consequences as may be fairly inferred from its terms.</p> <p>(4) Same. Grammar.</p> <p>Where there is ambiguity, rules of grammar will be disregarded where a too strict adherence would defeat the purpose of the legislature.</p> <p>(5) Same. Title of Act.</p> <p>The title of a statute can not control or vary the meaning of the enacting part, if the latter is unambiguous, but if there is doubt or obscurity iii the body of the act, the title may be consulted as a guide to the probable meaning of the legislature.</p> <p>(6) North Main Street Bridge Commission.</p> <p>In Public Laws, chapter 499, passed May 7, 1909 (the North Main street bridge commission), the words “the expense of all said work of reparation and construction,” in section 5, refer to bridge work, and not to w'ork done by or for the cities in the change of grade of their streets.</p> <p>(7) Same.</p> <p>The court will interpret section 6 of said act, according to the apparent intention of the legislature, by treating the words “the commission,” as impliedly understood in said section, so as to constitute the commission the body to determine and award the amounts to be paid by the cities, respectively.</p> <p>(8) Same.</p> <p>The broad power to build a bridge includes all minor details, and the legislative intent to empower the commission to build a bridge is clear.</p> <p>(9) Constitutional Law. Delegation of Legislative Power.</p> <p>Public Laws, chapter 499, is not obnoxious to Cons. R. I., article IV. section 2, in that it delegates legislative power to the commission appointed thereunder for the construction of a bridge.</p> <p>The legislature may properly delegate discretionary powers of an executive and administrative character to a commission.</p> <p>The absence of any provision in the act limiting the cost of construction, does not render the act unconstitutional.</p> <p>(10) State Debts. Constitutional Law.</p> <p>Under Pub. Laws, cap. 499, no liability is imposed upon the State, but the legislature has specifically directed the payment of the expenses by the cities, and “ State debts ” can not be construed to include debts of municipalities, even though the incurring of such debts is directed or authorized by the State. Hence the act is not obnoxious to Cons. R. I. article IV, section 13.</p> <p>(11) Constitutional Law.</p> <p>Public Laws, cap. 499, is not obnoxious to Cons. U. S. article XIV, of amendments, section 1, nor to Cons. R. I., article I, section 10, in that by said act property of a taxpayer is taken without due process of law.</p> <p>The apportionment of the burden of expense in building the bridge was within the discretion of the legislature, which may delegate to a commission the authority to determine in what proportion, and by what towns, the expenses shall be paid.</p> <p>Blodgett J., dissents.</p>

<p>(1) Equity. Contempt Proceedings.</p> <p>The decree entered in Starkweather v. Williams, Feb. 2, 1900, in the Appellate Division of the Supreme Court, was in a suit where the court had jurisdiction of the parties and of the subject-matter, and a party proceeded against for non-compliance with a decree will not be allowed to allege that the court erred in its judgment.</p> <p>The purpose of the bill in that cause was to impress a trust, in favor of complainant, upon property held by respondent’s testatrix in her lifetime, which had come into the hands of respondent, and was claimed by complainant as assets unadministered. It has been previously determined that the decree entered in the cause is conclusive between the parties, and respondent, presenting no reasonable excuse for his failure to comply with the decree, is adjudged in contempt.</p>

<p>Bill in equity to establish a trust.</p>

<p>(1) Construction of Will and Codicils.</p> <p>In construing a will and codicil, or codicils, they are to be taken and construed together, in connection with each other, as parts of one and the same instrument, and the codicils shall not be taken to vary or modify the will unless such was the manifest intention of the testator. If two dispositions can be reconciled, it should be done; if they are irreconcilable, the latter should prevail.</p> <p>As there can be but one residue, a testator, by bequeathing the residue of his estate in different codicils, must have had the same property in mind; and it is evident that, at the time of executing each codicil, he intended to make it the residuary clause. So, where in one case testator provided that the residue should be transferred directly over to the residuary legatees, thus vesting the property in them absolutely, and in the later codicil devising them merely a life estate with remainder over to their children, the provi- . sions of the codicils can not be reconciled, and the latter should control, as it effectively disposes of the residue and shows an intent contrary to that manifested in the previous one.</p> <p>(2) Bequest to Trustees of Fund With Remainder Over, Does not Lapse, When. Where there was a devise of a fund in trust to apply the income to X. during her life, and upon her death to pay over the principal to the daughters of testator, and X. predeceased testator, the gift does not lapse, but the trust becomes a naked one to pay over the legacy to the daughters directly.</p> <p>(3) Payment of Legacies. Interest.</p> <p>While an executor can not be compelled to pay legacies before the expiration of one year from the death of testator, such payment may be made prior to that time if the executor so elects, and is expressly authorized under Gen. Laws, 1909, cap. 318, § 11. If a legacy is paid before the time required, the income thereof from the time of payment goes to the legatee.</p> <p>(4) Income for Life. Interest.</p> <p>A bequest of the income of a fund to a legatee for life bears interest from the death of testator.</p>

<p>(1) Negligence. Declaration Unsupported by Testimony. Assumed Bisks.</p> <p>Plaintiff, an “iron melter” of ten years’ experience, was engaged in firing the cupola from the second floor of the factory, the fuel being brought to said floor by an elevator. The elevator was operated by a wire cable, and while plaintiff was using it in carrying materials the elevator was carried so far that its floor was a few inches above the floor of the second story, and in lowering it, it jammed, and before it was stopped the wire cable looped up about the “drum” and out of the grooves prepared for it to he in. Some attempt was made to prevent the falling of the car, by wedging it, and the plaintiff, either by the order of the foreman or of his own motion, attempted to place the cable in the grooves on the “ drum, ” and while so employed his hand was caught, by a sudden tightening of the cable, and injured. Plaintiff alleged that the accident was due to the sudden starting of the elevator mechanism, due to either the absence of, or by reason of a worn, bushing in the loose pulley, causing the belt to run on the tight pulley:—</p> <p>Held, that plaintiff failed to prove that either of said defects caused the tightening of the cable, or that either of such defects existed.</p> <p>Held, further, that, where plaintiff alleges negligence in certain particulars as the sole foundation of the action, negligence in these particulars must be proved to sustain the action.</p> <p>Held, further, that it appeared from the testimony that the lack of the bushing, or the presence of a worn bushing, could not have been the proximate cause of the starting of the mechanism.</p> <p>Held, further, that the testimony showed that the tightening of the cable was not caused by the starting of the elevator mechanism, and that it was mechanically impossible to have been so caused.</p> <p>Held, further, that plaintiff's declaration was inconsistent with the facts and in no view of the matter could he be allowed to recover.</p> <p>Held, further, that when he attempted to replace the cable, with his knowledge of the facts, he assumed the risk.'</p> <p>(2) Verdict Approved by Trial Judge in Case Where Evidence Fails to Sup.port Declaration.</p> <p>Where the verdict of a jury is not based upon their conclusions on conflicting testimony, but upon an entire misconception of the facts of the case, and in a case where the declaration is unsupported by the testimony, the court can not give the approval of the verdict by the justice presiding at the trial the force which is given it under the rule in Wilcox v. R. I. Co., 29 R. I. 292.</p>

<p>(1) Telegraph Companies. Rules Limiting Time to File Claims.</p> <p>The addressee of a telegram sent in reply to a communication from him requesting a reply by telegraph, and addressed to him at a point within this State from a point outside the State, is barred from maintaining a tort action for loss arising from negligent delay occurring in this State in the delivery of such telegram, by reason of his failure to file written notice of his claim within sixty days from the date the telegram was filed with the company for transmission, where there is a rule, printed on the back of the blank on'which the message delivered to him was written, requiring a claim for damages to be presented in writing within sixty days, and where the addressee had knowledge of the delay in ample season to have filed the claim, such rule being a reasonable one.</p> <p>The rights of the addressee are based upon and limited by the terms of the contract for transmission.</p> <p>(2) Knowledge of Rule by Addressee.</p> <p>The knowledge or ignorance of the addressee of such rule, before the delivery of the message to him, is immaterial in determining his right to recover.</p> <p>(3) Rules Limiting Liability.</p> <p>A rule printed on the back of the blank forms furnished by a telegraph company to its customers, including those upon which the messages as delivered are written, limiting the liability of the company for mistakes and delay, in accordance with a graded compensation, is a reasonable regulation, and is a bar to recovery, beyond such amount, by the addressee of a message sent in reply to a communication from him requesting a reply by telegraph. The rights of the addressee are limited by the reasonable provisions of the contract between the company and the sender, and the knowledge or ignorance, of the addressee, of this rule, before delivery of the message to him, is immaterial.</p> <p>(4) Law of State Where Message Originates to Govern.</p> <p>Questions as to the validity and effect of such regulations in the contract, between the company and the sender, as concern the addressee’s right to recover, are governed by the law of the State where the message originated.</p>

<p>Bill in Equity to obtain construction of deed.</p>

<p>(1) Negligence. Explosion. Res ipsa loquitur.</p> <p>Two explosions occurred in a building used as a starch factory, throwing the-walls into the street, causing death of intestate, a traveller on the highway. Plaintiff contended that the death of intestate was caused by negligence of defendant as the result of fire coming in contact with starch dust, which was present in large quantities on defendant’s premises and highly explosive under certain conditions. Defendant, while admitting this explosion, contended that the initial, and more violent, explosion occurred in an adjoining shop, whence it was transmitted to defendant’s premises, causing the explosion. !</p> <p>Held, that the case came within the doctrine of res ipsa loquitur, requiring the-defendant to bear the burden of the explanation thereby imposed.</p> <p>Held, further, that the location of the origin of the explosion was a question of' fact, but until there was proof to the contrary the presumption was it originated where it occurred; and the burden of explaining that it had its inception elsewhere was upon defendant.</p> <p>(2) Evidence. Form, of Question.</p> <p>Where the form of a question does not disclose the objection urged, the court is not required to analyze the testimony to determine such fact.</p> <p>(3) Evidence. Hypothetical Questions.</p> <p>Rules for hypothetical question stated.</p> <p>(4) Evidence. Hypothetical Question.</p> <p>Because a witness states that he founds his opinion upon certain facts, it is-not to be assumed that the jury will find such facts to be true, if not proved by competent evidence.</p>

<p>(1) Insurance. Awards.</p> <p>Plaintiff brought an action disclosing that an award had been made, which on its face determined the entire liability of an insurance company under its policy, and sought to recover in his action a sum greater than that awarded, and to impeach the award because of alleged misconduct on the part of the appraisers in excluding certain items while estimating the loss, and because of incompetency.</p> <p>Held, that the award could not be so impeached in an action at law.</p> <p>Held, further, that, assuming the first appraisal failed for reasons alleged, the plaintiff was not excused from requesting a second appraisal, it not being shown that the disqualification was known to the defendant at the time of the appointment by it of an appraiser, or that defendant was in any way responsible for their misconduct.</p> <p>(2) Insurance Policy. Appraisal of Total Loss.</p> <p>The provisions of the policy in suit contemplate an ascertainment, by appraisers, of the whole loss, including that portion of the property totally destroyed.</p>

<p>(1) Bills of Exception by Both Parties.</p> <p>Where a plaintiff has brought his bill of exceptions to the decision of the Superior Court, granting a motion for a new trial, the defendant may properly file his bill of exceptions to rulings, etc., so that, if the court sustain the exceptions of plaintiff, it may consider defendant's exceptions, and, if they constitute reversible error, remit the case for a new trial.</p> <p>(2) Concurring Verdicts. New Trial.</p> <p>After three concurring verdicts, upon conflicting evidence, the court, having twice remanded the case for a new trial, and having given sufficient opportunity for a fair determination of the disputed questions, will not longer interfere with the finding of the jury, where there has been no error of law-which affects the verdict.</p> <p>(3) Concurring Verdicts. Disapproval of Trial Judge.</p> <p>The doctrine of concurring verdicts is superior to the rule in Wilcox v. B. I. Co., 29 It. I. 292, as to the force to be given the decision of the trial judge in passing upon motion for new trial.</p> <p>(4) Evidence.</p> <p>“ Q. Have you ever known of an operator being injured in operating the furnace before?” was properly ruled out, since the furnace might be defective, and a part blow out before, because of defects, and the operator at the time be uninjured.</p> <p>(5) Master and Servant. Defective Appliances.</p> <p>In an action for injury caused by the blowing out of a valve stem, the facts with regard to the condition'of the stem which plaintiff actually knew was all the knowledge he was required to have, and he was’not required to inform himself as to the experience of other workmen about the furnace. He was under no duty to inspect the mechanism where his duties did not require or permit him to withdraw the stem and examine its threads.</p> <p>Blodgett, J., dissents.</p>

<p>(1) Misconduct of Juror. Intoxication. New Trial.</p> <p>A new trial will be granted where it appears that during a trial a juror was for at least two days so much under the influence of liquor that he was asleep a large part of the time, and by his conduct and actions revealed his own inattention and unfitness to serve as a juror.</p> <p>(2) Misconduct of Juror. Intoxication. Waiver.</p> <p>Immediately upon the convening of court on Tuesday, after an adjournment on Monday afternoon, defendant’s attorney moved that the case be taken from the jury on account of the intoxication of a juror.</p> <p>Held, that defendant had not waived its right to object to such misconduct on Monday afternoon, by not bringing it to the attention of the court at that time, since no unreasonable time was taken by counsel in the investigation of the misconduct of the juror.</p>

<p>(1) Shell Fisheries. Constitutional Law.</p> <p>Pub. Laws, cap. 896, § 3, passed February 8, 1901, as amended by section 3, of chapter 897, authorizing the towns of South Kingstown andNarragansettto open and maintain a breachway between Point Judith Pond and the ocean, and to lease the land as private and several oyster fisheries, is not obnoxious to Cons. R. I. art. I, § 17, by providing for the regulation of such shell fisheries for the benefit of the towns rather than for the benefit of the people of the State, and by not reserving any part for a free and common oyster fishery, and by providing for the creation of private and several oyster fisheries in said pond; nor to art. IV, § 2, as a delegation of legislative power.</p> <p>Where it appeared that the former breachway had been closed by natural causes so that the oyster beds in the pond had ceased to exist, and it would be necessary to incur large expense in opening the breachway, there was no impropriety in permitting the towns undertaking the improvement to reimburse themselves out of the revenue to be derived from leasing the fisheries to be created, since the State was benefited by making it a town debt.</p> <p>The legislature may delegate the execution of their regulations in regard to the fisheries of the State to any board or body they may deem advisable.</p> <p>The license granted by the State to the towns under said act was revocable at the pleasure of the State.</p>

<p>(1) Probate Law. Administrators. Interest on Sum Improperly Paid.</p> <p>Where a payment was improperly made by an administrator, but was so made under a mistake of law, and was not in any way beneficial to him, he should not be charged with more than six per centum simple interest thereon, from the time of the decision of this court disallowing said sum.</p> <p>(2) Administrators. Services of Attorneys For Benefit of Administrator.</p> <p>Where the delay of an administrator in administering an estate rendered him liable to removal, services of attorneys in defending him against removal will be disallowed.</p> <p>(3) Probate Law. Charges Against Estate.</p> <p>A payment, by an administrator, for certain work done on the homestead estate after the death of intestate, under a family agreement, was properly disallowed.</p> <p>(4) Probate Law. Payment of Distributive Share.</p> <p>A distributive share paid in advance of a decree of distribution is improperly paid, and will be disallowed in the account of the administrator.</p> <p>(5) Probate Law. Monuments. Burial Lots.</p> <p>The action of a Probate Court, upon petition for leave to erect a monument and for care of a burial lot, is conclusive.</p> <p>(6) Probate Law. Payment of Taxes and Insurance.</p> <p>Taxes upon real estate and insurance upon buildings, paid by an administrator, are properly disallowed but an administrator is taxable upon personal property in his hands.</p> <p>■(7) Probate Law. Appeal Prom Account.</p> <p>Upon an appeal from a decree of a Probate Court amending an account, the whole account can be disputed, and a party is not confined to the reasons of appeal.</p> <p><(8) Probate Law. Conclusiveness of Allowed Account.</p> <p>Where taxes upon real estate have been paid by an administrator, and his account allowed by a probate court, without appeal, the court will not, in an appeal from a later account, open and falsify the former account for this cause.</p> <p>(9) Probate Law. Citation of Administrator to Bender Account. Compensation.</p> <p>Where an administrator, cited to render an account under Gen. Laws, 1896, cap. 219, § 3, filed the account within the thirty days, but did not swear to it until afterwards, it not being clear from the testimony that no satisfactory reason was given for not swearing to it, the court will not revise the charges for compensation allowed him by the Probate Court, and deny compensation.</p>

<p>(1) Ne Exeat. Inquiry in Equity for Damages. Malice. Want of Probable Cause.</p> <p>In support of an application for writ of ne exeat, all the facts in possession of the petitioner were laid before a court of competent jurisdiction, in the form of affidavits, and, after examination and consideration of the same, the writ was ordered to issue. Later it was determined by the Supreme Court that the affidavits did not conform to the requirements, and that the writ should abate.</p> <p>Upon application by respondent in said writ for an inquiry in equity as to his damages:—</p> <p>Held, that respondent was not entitled to such inquiry unless he showed that the proceedings were instituted maliciously and without probable cause.</p> <p>Held, further, that, the evidence failing to show a malicious motive, and the sufficiency of the probable cause, as shown by the affidavits presented to the justice who issued the writ, having been passed upon by him judicially, petitioner for the writ was not liable in damages.</p> <p>Held, further, that the issuing of the writ was the judicial act of a court having competent jurisdiction of the subject-matter, and not the act of the one who sought the writ.</p> <p>Held, further, that, no bond having been required by the court, there was no liability for not giving one.</p>

<p>(1) Trusts. Remainders. Merger. Possibility of Issue.</p> <p>Testator died, leaving a will providing that his wife should have all his real estate, and the interest and income of his personal estate, during life, and by clause two of the will, in the event of her decease, he gave to each of his two daughters a parcel of real estate and one-half of his personal estate, but directed (clause three) that the shares of the daughters should not absolutely vest in them but should be retained by trustees, and only the income paid them during their lives; and in the event of the decease of one, the whole share of such daughter to go to the survivor.</p> <p>By the 4th clause of the will, he provided “to X. all my real estate and personal property, provided that she survive my wife and daughters, and the children of said daughters.”</p> <p>The wife and X. having deceased, the daughters, claiming that they were then the sole heirs at law of testator, sought a termination of the trust and a conveyance of the property to them, it being urged that they were of an age where there was no longer possibility of issue: — •</p> <p>Held, that clause two did not create a joint tenancy, but made specific devises in severalty, while the right of the survivor to the entire beneficial use of the trust estate was clearly provided for in clause three.</p> <p>Held, further, that the positive prohibition of the vesting of the estates in the daughters showed the dominant purpose in clause three to be to create an equitable joint tenancy, so that the trust must remain in force until the death of the survivor of them, thus preventing a merger of estates in the daughters.</p> <p>Held, further, that the presumption of law is in favor of issue, notwithstanding advanced age.</p> <p>(2) Trusts. Distribution Not to be Determined in Advance.</p> <p>Prior to the time when distribution is to be made under a trust, it is unnecessary to determine to whom such distribution shall be made.</p>

<p>(1) Liability for Escape of Waste Products into Public Waters.</p> <p>Where a corporation is permitted to manufacture illuminating gas, for its own emolument and profit, it is with the implied, if not express, limitation that it shall not become a public or private nuisance; that, if it creates deleterious and poisonous substances, it will dispose of the same without injury to others, and if it allows its deleterious waste product to contaminate the waters of the State, it is liable to any person injured thereby in his private’ capacity and apart from being one of the public, provided he can trace to its origin the noxious substance whereby he is damaged.</p> <p>(2) Property in Shell-Fish Planted in Public Waters.</p> <p>One who deposits shell-fish in public waters, not a natural oyster or quahaug bed, for the purposes of culture and growth, and defines the land so as to give public notice of the fact that he has exclusive possession, continues to • maintain his possession of the same, and, in an action for injury caused to said shell-fish, sufficient title is shown by proof that he was in possession, under a claim of right not disputed by anyone having a better title.</p> <p>Such possession by a plaintiff, in either the ground or shell-fish, can not be questioned by a mere wrongdoer.</p> <p>(3) Natural Oyster Grounds.</p> <p>Pub. Laws, cap. 853, passed March 23, 1901, "Of private and several oyster fisheries,” is not in derogation of Cons. R. I., art. I, § 17: “The people shall continue to enjoy and freely exercise all the rights of fishery and the privileges of the shore,” etc.</p> <p>By the Revolution and acknowledgment of independence by the British government, this State succeeded to the public rights of British subjects, whether originally belonging to the crown or exercised by parliament, which rights were added to the rights derived from the charter, and the public rights formerly exercised by parliament came under the control of the legislature. After the adoption of the constitution of 1843, the legislature had these powers, less the power taken for the Federal government, and also less whatever powers were taken from it by the State constitution.</p> <p>Prior to the adoption of the constitution, the rights of fishery were subject to the control of the General Assembly, and as by Cons. R. I., art. 1, § 17, the rights of the legislature were not abridged, the whole subject of fisheries is ■under the control of the legislature, and they may delegate the administration of their regulations to such officers as they see fit.</p> <p>(4) Leases of Oyster Grounds Not Subject to Collateral Attach.</p> <p>Leases of oyster grounds valid on their face, can not be attacked in a collateral proceeding.</p> <p>(5) Construction of Act Relative to Private Oyster Fisheries.</p> <p>Section 7 of chapter 853, of March 29, 1901, explained.</p> <p>(6) Construction of Act.</p> <p>In sections 13-17 of said act relating to applications for leases, the question is not to whom the land shall be leased, but if certain land shall be taken for private oyster fisheries. This is the only question which can be heard by the commissioners upon the application, or by the court upon appeal.</p> <p>The question of to whom the land shall be let after surveying and platting, is within the discretion of the commissioners, from which no appeal is provided.</p> <p>(7) Construction of Act.</p> <p>The successive steps by which the leasing of oyster ground is to be accom- ■ plished under the act are:—</p> <p>1. Application for lease, upon which notice is to be given of the time and place where the question, “ shall the land be leased?” will be determined.</p> <p>2. If no appeal is taken from this public question, the land is surveyed and platted into acre lots.</p> <p>3. To whom shall the land be let? Decision of commissioners final.</p> <p>.4. Question of leasing land, lot by lot; whenever the minds of the parties concur in regard to the letting of a particular lot, an agreement to lease that lot is accomplished.</p> <p>There is no limit to the number of acres that may be included in one lease if the agreements to lease the lots were separately made. The length of time consumed in making the agreements is of no consequence if they were made separately.</p> <p>(8) Validating Leases. Constitutional Law.</p> <p>As the leases in question were valid they needed no validating, and the court will not consider the constitutionality of the validating act, Pub. Laws, cap. 1574 of 1908.</p>

<p>(1) Financial Town Meeting. Powers. Auditing Committee.</p> <p>The taxpayers are the only electors who, under the constitution, can vote “upon any proposition to impose a tax or for the expenditure of money in any town or city ” but they do not constitute the town. The inhabitants of the town constitute the town as a body corporate, and the powers of election are exercised by all the electors in the town meeting.</p> <p>Gen. Laws, 1909, cap. 46, § 11, confers no power upon a financial town meeting to elect an agent called “an auditing committee, ” without whose approval no money may be expended by the town treasurer, though audited by the town auditor and allowed and ordered paid by the town council, unless such claim has been reduced to a judgment. Foster v. Angelí, 19 R. I. 285, overruled in part.</p> <p>(2) Appropriations. Financial Town Meeting.</p> <p>While moneys appropriated by a financial town meeting must be applied to the purposes for which they were appropriated, the taxpayers in such financial meeting can not, after making the appropriation, order or forbid the disbursement of such moneys within and for the purposes for which they were appropriated. Such money is not the money of the tax-paying voters, but the money of the town.</p> <p>(3) Town Council Governing Body. Power to Allow Claims.</p> <p>Under Gen. Laws, 1909, cap. 50, § 4, and cap. 46, §§12 and 13, the town council is the governing body of a town and has full power to pass upon, adjust, and order paid claims against the town, and it is the duty of the town treasurer to pay claims so allowed.</p> <p>(4) Special Agents of Town.</p> <p>Gen. Laws, 1909, cap. 46, § 11, authorizing towns to appoint “such special agents for the transaction of any town business, not by law required to be performed by any officer known to the law, as they deem expedient,” could not confer authority upon a financial town meeting to appoint an “auditing committee” for the purpose of auditing accounts, when a town had, under the provisions of Pub. Laws, cap. 402, of April 30, 1909, elected a town auditor for the performance of such duties.</p> <p>The power attempted to be given to the “ auditing committee,” by the financial meeting, to pass upon, allow, and decide'whether claims against the town should be paid was an attempt to appoint an agent for the transaction of town business by law required to be performed by officers known to the law, viz., the town council, which appointment could not have been made even by the town itself.</p> <p>(5) Mandamus. Undisputed Claim.</p> <p>Where a claim against a town is undisputed, and there remains only the plain ministerial duty on the part of the town treasurer to pay it, mandamus will lie.</p> <p>Portland Stone Ware Co. v. Taylor, 17 R. I. 33, and the cases following it, considered and discussed, and found in harmony with it.</p> <p>Mandamus will lie to compel the payment, by a town treasurer, of a claim against a town which has been allowed and ordered paid by the town council, there being funds in his hands applicable to such payment, his refusal being based on the fact that the claim had not been audited by an “ auditing committee” appointed by a financial town meeting, since the approval by the town council clearly imposes the duty upon the treasurer, and the legal remedy provided by Gen. Laws, 1909, cap. 46, §§ 12, 13, 14, is not sufficiently speedy and adequate to bar the court, in the exercise of a sound discretion, from granting the writ.</p> <p>A specific remedy in equity does not oust the legal jurisdiction in mandamus but only appeals to the discretion of the common law court.</p> <p>Dubois, C. J., and Blodgett, dissenting.</p>

Complaint against the respondent as a member of the bar, and petition for an order of court requiring the respondent to pay over certain moneys received by him as attorney.

<p>(1) Contracts Contra Bonos Mores.</p> <p>Where complainant, having been employed by a petitioner in a divorce proceeding, in a relation involving trust and confidence, severed his connection-with her, claiming that his bill for services had not been paid, and a few months later entered the employment of respondent in such divorce proceeding, in the same relation, such a contract with said respondent is contra bonos mores, and will not be enforced.</p> <p>Where, under such circumstances, money was alleged to have been placed in-the hands of an attorney for the respondent in' the divorce petition, to be paid to complainant, upon complaint to the court against the attorney for-withholding payment of the money, relief will be denied, as such contract is contra bonos mores, and, further, because the relation of attorney and client did not exist between the parties, and also because the testimony concerning the purpose for which the money was left with the attorney being conflicting, the court will not settle such a dispute in a summary proceeding, but will leave the parties to their remedies, in the usual manner.</p> <p>(2) Attorneys at Law. Unprofessional Conduct. Contract Contra Bonos ' Mores.</p> <p>Where it appears that an attorney, with knowledge that a person had been employed by a petitioner in a divorce proceeding, in a confidential relation, after such agent had ceased to act for such petitioner, engaged such person to act for the respondent in divorce, in a similar character, and agreed to pay him for evidence to be obtained against the petitioner, the attorney is-guilty of unprofessional conduct.</p>

<p>(1) Auditors. Exceptions. Waiver.</p> <p>While neither the legislature, nor litigants, can deprive the Supreme Court of its final revisory and appellate jurisdiction conferred by article XII, of the amendments to the constitution, yet parties may, by agreement, divest themselves of the right to invoke the jurisdiction of the court.</p> <p>Both the right to claim a jury trial and to take exceptions may be waived.</p> <p>Under the provisions of C. P. A., sections 422, 423, the decision of the Superior Court upon an auditor’s report is final and not subject to exception, where the reference was by agreement of all the parties.</p>

<p>(1) Negligence. Electric Cars. Duty of One Crossing Tracks. Minors.</p> <p>A boy, 15 years of age, who alights from a car and proceeds around the rear end upon a parallel track, where he is struck by another car going in the opposite direction, is not in the exercise of due care, there being no evidence that he looked or listened, or took any precautions, to ascertain whether it was safe to go upon the track.</p> <p>The duty of a passenger, in passing around the rear of a car from which he has alighted, in the direction of parallel tracks upon which cars are running in the opposite direction, is either to wait until the car which operates as an impediment to the exercise of his senses has moved out of the way, or, if he elects to proceed in the rear of the same, to look and listen for an approaching car before venturing upon the tracks. One who takes no precautions is not in the exercise of due care, and the fact of minority is immaterial.</p>

<p>(1) Financial Town Meeting. Powers. Auditing Committee.</p> <p>Since a financial town meeting has no power to elect an agent known as an “auditing committee" and to provide that no money shall be expended by the town treasurer without his approval, an injunction, restraining a town ■ treasurer from paying any claims against a town not audited by the “auditing committee,” was improperly granted.</p> <p>Following Cornell v. Barber, 31 R. I. 358.</p> <p>(2) Financial Town Meeting. Appropriations. Salaries.</p> <p>A financial town meeting appropriated a sum to be used for the puipose of paying the salaries of town officers, and by vote fixed the salaries of the town council at a certain sum as full compensation:—</p> <p>Held, that the vote constituted a limitation upon the appropriation, and an injunction restraining the town treasurer from exceeding such limitation was properly granted.</p> <p>(3) Special Tax. Permanent Improvements.</p> <p>A tax was levied “exclusively for permanent improvements on the h'ghways. of the town, and for the erection of new school buildings.” It was provided that no part should be used for any other purpose, and that the work should be done by contract, and a committee was appointed to expend the money for the permanent improvements: — •</p> <p>Held, that, without the provision that the work should be done by contract, the town council would have had the power, under Gen. Laws, 1896, cap. 72, § 6, to determine whether the appropriation should be so expended, but, as by the terms of the vote, it was to be done by contract, it must be expended as directed by the financial town meeting.</p> <p>Held, further, that the town treasurer could not properly pay out any of the-special appropriation, even upon the order of the committee, for any purposes other than those for which the appropriation was made.</p>

<p>■(I) Supervisors of Election. Filling V a candes.</p> <p>Where a list of six names of electors was presented to a town council, for the selection of supervisors of election under provisions of Pub. Laws, cap. 640, § 18, and the council selected two, one of whom accepted and the other declined the appointment, and three of the remaining electors also declined to serve, leaving one elector, who was willing to accept, no list as contemplated by the statute existed from which the vacancy might be filled, and the council should fill such vacancy in the same manner as when no list has been submitted to it.</p>

<p>(1) Probate Law. Bonds to Pay Debts and Legacies. Decree of Unfaithful A dministration.</p> <p>While the requirements of C. P. A., § 1027, as to what shall be shown by a creditor in a suit on a bond given to a Probate Court are broad enough to-include suits upon any bond given to such court when brought by a creditor of a decedent, yet some of them are inapplicable to suits brought upon bonds for the payment of debts and legacies, and there is no necessity for obtaining a decree of unfaithful administration before bringing suit upon such a bond.</p> <p>(2) Probate Law. Bond to Pay Debts and Legacies. Filing Claim.</p> <p>Where a bond has been given to pay debts and legacies it is still necessary to file claims in the Probate Court, under C. P. A., § 883, and a claim not so filed is barred. Where a claim has been filed, the burden is upon the claimant to prove it, and that it has not been disallowed, or if disallowed has been established according to law, and a declaration should contain these essential averments.</p> <p>(3) Declarations. Amendments.</p> <p>Where a declaration is demurrable because lacking essential averments, if it is made to appear to the court that necessary steps were actually taken, it may be amended with or without terms in the discretion of the court.</p>

<p>{1) Certiorari. Licenses for Intoxicating Liquors. Schools.</p> <p>In certiorari upon the issue as to whether a building in which a license for the sale of intoxicating liquors was granted was within 200 feet, measured by a public highway, of the premises of a parochial school. Evidence considered, and held that petitioner had not sustained the burden of proving that the license was granted for a building within the restricted area.</p> <p>The premises of a public or parochial school can be neither more nor less than the duly constituted authoi'ities may see fit to appropriate for that purpose, and the same may be abridged or enlarged by them in their discretion. What they are is matter susceptible of proof, and should not be left to conjecture.</p>

<p>(1) Exceptions. Filing Transcript. Establishing Truth of Exceptions.</p> <p>Upon filing of notice of intention to prosecute a bill of exceptions, an order was made that transcript be delivered by stenographer on or before August 1, and bill and transcript be filed on or before August 11, in clerk’s office.</p> <p>July 29, the following order was made: “Time for filing transcript of evidence &c., in clerk’s offi.ce, extended to October 1.” The bill and transcript were filed October 8, and were not acted upon by the trial judge.</p> <p>On petition to establish truth of exceptions and correctness of transcript:—</p> <p>Held, that the time for filing transcript not having been extended to October 8, the court could not make such extension indirectly by establishing the truth of the exceptions or correctness of transcript.</p>

<p>The Sale of Intoxicating Liquors upon Christmas Day.</p> <p>{!) Holidays. Sale of Intoxicating Liquors.</p> <p>Under the provisions of Pub. Laws, cap. 528, amending Gen. Laws, 1909, cap. 201, § 5, when the 25th day of December falls upon a Sunday, in that case the 26th of December shall be a holiday as Christmas day, and under Gen. Laws, 1909, cap. 123, § 2, intoxicating liquors cannot be sold upon that day.</p> <p>As licensed saloons must remain closed upon that day in compliance with the requirement of § 2 of cap. 123 of Gen. Laws, 1909, the provisions of section 25 of said chapter, permitting boards of aldermen and town councils to prohibit the sale of liquors during specified hours of any holiday not specifically mentioned in section 2 as a day upon which licensed saloons must close, have no application.</p>