Volume 32 — Rhode Island Reports

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

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

<p>■(1) Exceptions. Time for Filing Transcript and Bill.</p> <p>Under the provisions of the statutes relative to prosecuting a bill of exceptions, the transcript of evidence and bill of exceptions are to be filed together in the first instance; but in case of an extention of time for filing the transcript, the bill of exceptions need not be filed at the same time as the transcript, but within ten days thereafter; and it is not a jurisdictional requirement, in the prosecution of a bill of exceptions, that the filing of the transcript, should be prior to the time fixed by the court for the filing of the bill.</p> <p>An order was made “Transcript of evidence etc., to be made and delivered by stenographer to party ordering same or his attorney of record, and to be filed in clerk’s office on or before May 12, 1910. Bill of exceptions to be filed in clerk’s office on or before May 21, 1910. May 21 the bill and transcript were filed.</p> <p>Meld, properly filed.</p>

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

<p>fl) Jurisdiction. Motion to Dismiss Complaint. Divorce.</p> <p>A motion to dismiss a petition for divorce for want of jurisdiction is properly-heard and determined at the earliest moment.</p> <p>Want of jurisdiction can not be waived nor cured by general appearance.</p> <p>Upon hearing of a motion to dismiss a petition for divorce for want of jurisdiction, evidence touching the charges of petitioner was properly excluded.</p> <p>(2) Divorce. Jurisdiction. Domicile and Residence.</p> <p>Where it appeared that the domicile and residence of a respondent in proceedings for divorce from bed and board was outside the State, and that petitioner did not attempt to gain a residence and domicile separate and apart from respondent until after she signed and made oath to the petition, the court was without jurisdiction to entertain the petition.</p> <p>The acquirement of residence or domicile must precede the preferment of the petition; therefore a petition for divorce can not be presented with the expectation of thereafter acquiring the domicile or residence.</p> <p>Semble; that in a proper case, one of urgent necessity, a wife might become a domiciled inhabitant of this State by residing here separate and apart from her husband for a fractional part of a day, for the purpose of becoming a petitioner for divorce from bed and board.</p>

<p>''(I) Evidence. Books of Account. Credit Given, to Whom.</p> <p>In an action upon book account, plaintiff offered in evidence books of account kept in- regular course of business, for the purpose of proving not only the performance of the services and the charge therefor, but also for the purpose of showing to whom plaintiff had extended credit. Defendant had admitted the performance of the work, and the amount of the charge. The evidence was excluded:—</p> <p>Held, that, in view of the admission, the only purpose in offering the books was to show that the charge was made against defendant, and books of account are inadmissible to show to whom credit was given when that fact is in issue.</p> <p>(2) Evidence. Res Inter Alios Acta.</p> <p>Upon the issue as to whether defendant had employed or agreed to pay plaintiff for his services, rendered to the brother of defendant; evidence as to other payments made by defendant to other parties in connection with the same transaction was properly excluded.</p> <p>(3) Contracts. Implied Promise to Pay for Services Performed for Third Party.</p> <p>In an action to recover for professional services rendered to brother of defendant, evidence considered, and held not to sustain any implied promise on the part of defendant to pay therefor.</p>

<p>-(I) Wills. Equitable Conversion.</p> <p>'Testamentary devise as follows: — “I give, devise and bequeath to my executor, all my real and personal estate of every kind in trust to receive the rents and profits of my real estate until it shall be sold and to sell my real and personal estate and convert the same into money as soon as may conveniently be done after my decease, and on such terms as he may deem proper and to dispose of said rents and profits and of the proceeds of the sale of my real and personal estate in the manner hereinafter directed;” i. e. “to divide all the rest, residue and remainder of my real and personal estate or the proceeds thereof into three equal shares and to pay over one of such shares to A. if he shall have attained the age of 25 years at the time of my decease” and with other similar provisions for the payment of the other two shares to B. and C. if they had attained such age at that time; with directions in case any of the beneficiaries should be living and under the age of 25 years at death of testatrix, that the executor should hold such share in trust until the attaining of that age.</p> <p>'“I appoint my nephew X. the executor of and trustee under this will.” X. having deceased, Y. was appointed administrator with the will annexed and substituted trustee:—</p> <p>■On special case stated for construction of will: — ■</p> <p>Held, that: — the express intention of testatrix was that all the residuary real estate should be converted by executor into personal property, and that the beneficiaries should receive personal and not real estate.</p> <p>(2) Equitable Conversion.</p> <p>An absolute and not discretionary direction to an executor to sell real estate and distribute the proceeds of the sale as money or invest them in personal property works an out and out conversion of the real estate into personalty, so that the interests of the beneficiaries must be treated for all pm^poses in equity as personal and not real property from the date of testator’s death.</p> <p><(3) Discretion in Executor. Equitable Conversion.</p> <p>When a testator directs his executor to sell his real estate, a discretion given the executor as to the time, manner, or terms of sale will not prevent an equitable conversion from taking place.</p> <p>{4) Same.</p> <p>Held, further, that, in this case, the duty of the executor to sell was absolute, and not discretionary, since the power given him was in trust and its exercise was compulsory.</p> <p>(5) Wills. Construction. ■</p> <p>Held, further, that the legal title to the real estate in question was given to the executor, and the residuary legatees got no right, title, or interest in it, legal or equitable, which could be conveyed by them or upon which attachment could be levied.</p> <p>(6) Powers of Sale Given Executor Vest in Administrator.</p> <p>The powers of sale conferred upon the executor by the will vested under Gen-Laws, 1909, cap. 312, § 26, in the administrator with the will annexed upon his appointment and qualification as such.</p> <p>(7) Wills. Executors. Trusts.</p> <p>Held, further, that, while it might be necessary for the executor to hold some of the proceeds of the sale in trust for a time, this did not alter the nature of the power of sale, and the administrator must exercise the power in his capacity as administrator having no active duties as trustee until he had set. aside the share of C., who was under 25 years of age, which he should hold in trust for her.</p> <p>(8) Wills. Sale by Executor Under Power.</p> <p>Held, further, that the administrator might sell and convey the property so-as to convey all the right, title, and interest of testatrix free and clear of any incumbrances attempted to be placed upon it since the decease of testatrix, either by way of attachment in suits against the beneficiaries or by way of deed from one of such beneficiaries.</p>

<p>(1) Wills. Construction. “Children." “Grandchildren.”</p> <p>Testamentary provision: “After the decease or marriage of my wife, 1 give, devise, and bequeath all said estate to her children to be and remain to them their heirs and assigns forever. Excepting however from the provisions of this clause, the heirs of my daughter Nettie G. Eddy, deceased.” Nettie G. Eddy was the name of testator’s granddaughter, the daughter of his daughter, who married an Eddy.</p> <p>Held, that the plain intent was to exclude the heirs of his daughter from participation in the residue, and to devise it to the children of his wife living at the time of her death.</p> <p>Held, further, that the word “children” in a will, is to be understood in its simple and primary signification when possible, and not so as to include grandchildren, unless it is necessary to hold so to give effect to the words of the will, or to the evident intent of testator.</p>

<p>(1) Constitutional Questions.</p> <p>Upon a complaint certified to the court upon constitutional questions, technical objections will not be considered.</p> <p>(2) Constitutional Law. Search-Warrants. Registration of Bottles, &c.</p> <p>Gen. Laws, 1909, cap. 198, §§ 2-3 (of the protection of owners of cans, bottles, &c.), is not obnoxious to Cons. R. I., art. 1, § 10, or to Cons. U. S., art. XIV, § 1 of amendments.</p> <p>Gen. Laws, 1909, cap. 198 (of the protection of owners of cans, bottles, &c.), provides that, upon complaint duly made, the court shall issue a search-warrant, and shall also cause to be brought before it the person in whose possession the receptacles are found, and shall enquire into the circumstances of such possession, and if it finds that such person has been guilty of violating the act, shall impose the punishment therein provided, &c.</p> <p>A search-warrant, issued under said chapter, directed the officer, if any of the articles were found, to bring them, together with the body of the person in whose possession they were found, before the court to be dealt with as to law and justice should appertain:—</p> <p>Held, that the search-warrant issued was a proceeding in rem against the goods, and the fact that it contained a command to also bring the body of the person in whose possession the goods were found did not change its character.</p> <p>Held, further, that there was nothing in the statute to indicate that the person so brought before the magistrate was to be arraigned or tried upon the complaint which was the foundation for the search-warrant.</p> <p>Held, further, that whether the arrest was made under the search-warrant or upon process issued contemporaneously therewith or subsequent thereto, a complaint for violation of the statute should have been made, and upon that complaint the accused could have been tried.</p> <p>Held, further, that the irregularities in the case at bar werenot occasioned by the statute, and did not arise from a compliance with its provisions; and (semble) even if such proceedings were absolutely void for unconstitutional irregularities, that would not affect the constitutionality of the statute unless such irregularities were made essential requisites by its terms.</p>

<p>Bill in Equity. Certified to the Supreme Court under Gen.. Laws, cap. 289, § 35.</p>

<p>Bill in Equity, for partition. Certified to the Supreme Court under Gen. Laws, 1909, cap. 298, § 5.</p>

<p>Bill in Equity, for construction of will. Certified to Supreme Court.</p>

<p>Trespass On the Case. Certified to the Supreme Court, under Gen. Laws, cap. 298, § 5.</p>

<p>Assumpsit on insurance policies.</p>

<p>(1) Buies of Court. Putting Plaintiff on Proof of Capacity of Defendant.</p> <p>Where a defendant had failed to give notice to the plaintiff, under the provisions of rule 18 of the Superior Court, to put him .upon proof of the character and capacity of the defendant, who was sued as “administrator with the will annexed,” a motion for direction of a verdict, on the ground that plaintiff had not proved the appointment of the defendant as administrator, was properly denied.</p> <p>Even without such rule, in the absence of a special plea, the representative capacity of defendant would be deemed to be admitted.</p> <p>(2) Presentation of Claims in Probate Court. Bills and Notes. Variance.</p> <p>In an action upon promissory note, declaration averred that, after decease of intestate, plaintiff “presented said note and his claim thereon to the defendant” (administrator), while the proof showed that the claim was filed in the office of the clerk of the Probate Court:—</p> <p>Held, that, as the law required that the claim be filed in the Probate Court within a certain time, as a preliminary step to its allowance or to suit thereon in case of disallowance, the declaration was demurrable, although amendable, but as defendant neither demurred nor objected to the evidence offered by plaintiff, and proper presentation of the claim according to law was proved, the defendant could not, on exceptions to direction of verdict for plaintiff, object on the ground of variance.</p>

<p>(1) Evidence.</p> <p>Where an immaterial question which, considered by itself, would not be likely to produce any results of which the adverse party could complain, received an answer irresponsive to the question; but no objection was taken to such answer, and no request made to have it stricken out, and no objection taken to remarks of the court which were also irrelevant under the circumstances, an exception to the ruling of the court, admitting the question, will be-overruled.</p> <p>(2) Evidence.</p> <p>Where testimony had been offered without objection, as to certain deposits-of decedent in various banks, then the inventory of the estate was admitted after objection, and thereafter • further testimony covering the deposits referred to in the inventory was introduced, also without objection, the admission of the inventory was not prejudicial.</p> <p>(3) Charge to Jury.</p> <p>Where no exception is taken to a charge and no special requests to charge are preferred, it must be considered that the charge correctly stated the law of the case.</p>

<p>{1) Evidence.</p> <p>An answer to an interrogatory is properly ruled out, where it appears that deponent could not have testified to the fact of her own knowledge, and it does not otherwise appear that she was qualified to testify as to such fact.</p> <p>(2) Hearsay Evidence.</p> <p>Upon the issue of ownership of the locus in an action of trespass and ejectment, Q. “What do you know about the ownership of this lot? A. Well, I was always told, my earliest remembrance, that it was grandmother’s. Q. Who told you this? A. My. mother.” It appeared that the grandmother deceased when witness was four years old.</p> <p>Held, properly excluded as hearsay testimony.</p> <p>{3) Evidence.</p> <p>■“ Q. Do you know whether your mother or grandmother or any member of your family, ever drove off trespassers or exercised any dominion or ownership over this land? A. My graiidmother has had plats made, which I have seen, and she has also, so I have always understood, been on and ordered people off.”</p> <p>• Held, that the question called for personal knowledge and the answer was irresponsive and also objectionable as hearsay.</p> <p>(4) Evidence. Admission de bene.</p> <p>A court sitting without a jury in allowing a qualified admission of papers or records de bene, is in the exercise of a reasonable discretion, and where it does not appear that any consideration was given to the evidence so admitted after objection, the exception to such admission will be overruled.</p> <p>(5) Trespass and Ejectment. Title.</p> <p>In 1870, X. caused plats of certain unimproved property to be made and recorded, which plats included the “locus in quo.” Prior to that time he had fenced in a portion of the property including the “locus.” Thereafter he staked out lots, graded streets, and posted advertisements on the land and publicly sold house lots and asserted his ownership thereof. There was no evidence that the predecessors in title of plaintiff or any other person sought to interfere with these acts of ownership, until the issuing of the writ in trespass and ejectment 26 years thereafter. Both plaintiff and defendant claimed under paper titles from a common ancestor.</p> <p>Held, that the paper title of the defendant was as good as that of plaintiff, and that such possession of the land as had existed had been upon the part of ancestors in title of the defendant.</p> <p>(6) Taxation. Notice to Party Holding Interest in Property.</p> <p>A tax deed has no binding force against a party whose interest in the property which is the subject of sale appears upon the records, unless the notice required by statute has been given such party in interest.</p>

<p>(1) New Trial. Newly Discovered Evidence. Perjury.</p> <p>In an action of negligence, defendant petitioned for a new trial on the ground of newly discovered evidence, and in support of the motion filed affidavits covering alleged conversations with a witness, in which conversations witness admitted that he committed perjury at the trial: — ■</p> <p>Held, that the evidence would not be admitted to impeach the verdict.</p> <p>(2) Negligence. Duty of Driver Approaching Track. . ,</p> <p>Request to charge in these words, “It was the plaintiff’s duty to look in both directions as he approached (the street), and to select such a point from which to look, as to enable him to determine whether or not a car was coming, and if the jury find that he did not so look, and that his failure so to do contributed to the collision, then he is guilty of contributory negligence, and he cannot recover.”</p> <p>Held, to state the law correctly, but the charge by the court, as to the duty of plaintiff, “to look and see if a car is approaching, and if there is a curve and the view is obstructed, to listen and see if a car is approaching,” was sufficiently full and complete.</p> <p>(3) Charge- to jury.</p> <p>When the court has correctly instructed the jury as to the law it is not required to repeat such instructions in the exact language requested by counsel.</p> <p>(4) Negligence. Common Carrier. Request to Charge.</p> <p>Request to charge, “If the jury should find that the running-board of the car was down, that fact would have no bearing upon the plaintiff’s contributory negligence, if the jury also find that the car must have been in sight when he says he looked; because in such case he would have seen that the running-board was down, and would be obliged to manage'his team, having such fact in mind.”</p> <p>Held, properly refused; because including an assumption of fact which it would have been improper to charge.</p> <p>(5) Negligence. Carriage Approaching Track.</p> <p>Charge of the court, “A person may see a car approaching, and it may be at such a distance, even although approaching at a high rate of speed, he may cross the track, and he is not guilty of negligence in doing so because a reasonable prudent man would infer that the car could not reach him at the speed at which he was driving his own conveyance before he got across, and under those circumstances he would not be guilty of negligence in entering upon the track.”</p> <p>Held, a correct statement of the law.</p> <p>In an action for negligence arising out of a collision there was no direct testimony that the electric car could have been stopped after it was apparent to the motorman that plaintiff intended either to get on the track or so near thereto as to make a collision probable, although there was conflicting testimony as to the distance of the car from the place of the accident when the cart made the turn into the avenue, and as to its speed, and also as to what the motorman did in regard to stopping the car. The motorman also testified that he saw the cart when it had not got quite to the corner, and saw it turn the corner:—</p> <p>Held, that the absence of any such direct testimony was not sufficient to justify the granting of a request to charge that there being no such evidence, plaintiff could not recover upon the ground that, notwithstanding his own negligence, the collision could have been avoided by the motorman; as such a statement would have been merely an inference of the witness from what he saw, which inference should properly and might in the case at bar have been properly inferred by the jury from the evidence.</p> <p>(7) Negligence. Damages.</p> <p>In an action for negligence, evidence showed that plaintiff received a severe and almost fatal injury to his intestines and stomach, necessitating an important operation, and requiring the wearing of a heavy belt to support the abdominal wall, leaving him in a condition where he would be unable in the future to do any heavy work. He also suffered a money loss of $2,100:—</p> <p>Held, that a verdict for $9,082 was not excessive.</p>

<p>Forcible Entry and Detainer.</p>

<p>(1) Trusts. Dividends. Life tenant and Remainderman.</p> <p>An extra dividend of fifty per cent, was declared by a corporation on its capital stock, and the stockholders were invited to subscribe to the capital stock of a subsidiary company, in which event one-half the dividend would be paid for such subscription and the other half would be paid in cash to the stockholder.</p> <p>A trustee took the new stock and received the other half in cash. Upon the question as to whether such cash dividend should be paid over to the life tenant as income or added to the principal of the fund:—</p> <p>Held, that, there being nothing to show that it was not a dividend of profits earned in the regular course of business, and during the term of the life estate, it came within the general rule that cash dividends go to the life tenant.</p> <p>(2) Same.</p> <p>As a general rule cash dividends go to the life tenant, and stock dividends to the remainderman.</p>

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

<p>(1) Appeal and Error. Power of Trial Justice to Grant New Trial. Review by Supreme Court.</p> <p>As the justice presiding at a jury trial may freely and independently exercise his power to grant a new trial whenever in his judgment the Verdict fails to administer substantial justice, such disapproval of a verdict by him will be maintained by the appellate court, unless it appears clearly that his conclusion was erroneous.</p>

<p>(1) Liability Insurance.</p> <p>While a policy of employer’s liability insurance was in effect between the parties, wherein defendant agreed to indemnify plaintiff for accidental injuries suffered by its employees, whose compensation was given in a certain schedule at any of the places mentioned in said schedule, a workman on a building, which plaintiff was constructing, was injured. Plaintiff gave defendant the required notice and after suit against plaintiff, defendant investigated the accident and considered the question whether the workman was an employee, and thereafter without reservation assumed conduct of the defence. After verdict approved by the appellate court, the court decided that the workman was not an employee of plaintiff. Defendant refused to reimburse plaintiff for the amount of the judgment on the ground that the judgment was not covered by the policy.</p> <p>One of the counts of the declaration, set out the terms of the policy, but did not allege that the workman was an employee and alleged that because of the assumption of the defence by defendant with full knowledge of the facts, it waived all right of objection that the claim was not covered by the policy:—</p> <p>Held, that after plaintiff turned over to defendánt, as a result of its conduct the complete control of the suit, defendant could not say that plaintiff was not injured thereby or that the result would have been the same if plaintiff had taken charge of the matter itself.</p> <p>(2) Waiver. Estoppel.</p> <p>Held,, further that plaintiff was not restricted by the use of the word “waiver” in its count, to a recovery only in accordance with the doctrine of waiver. For if the facts show a cause of action the count should be sustained, whether the light arises from waiver, estoppel or any other established doctrine of law.</p> <p>(3) Quasi Estoppel.</p> <p>Held, further, that while with exactness the conduct of defendant was an estoppel to deny liability rather than a waiver of a right, yet its liability was based on the broad equitable principle that a person with full knowledge of the facts should not be permitted to act in a manner inconsistent with his former position or conduct to the injury of another.</p> <p>There is a distinction between quasi estoppel and estoppel by misrepresentation. The former includes the doctrine of election, the principle which precludes a party from asserting to another’s disadvantage, a right inconsistent with a position previously taken by him, and certain forms of waiver.</p> <p>Held, further that the doctrine of quasi estoppel was broad enough to extend the liability of the defendant beyond the terms of the policy and to furnish indemnity for loss to a person not an employee.</p>

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

<p>Assumpsit. Certified to Supreme Court on agreed statement of facts.</p>

<p>(1) Certiorari. Intoxicating Liquors. Parties. Liquor Licenses. Technical Objections.</p> <p>On certiorari against license commissioners by a holder of a liquor license, unless the license held by petitioner is affected by the issuance of a subsequent license granted to another, petitioner has no cause of complaint. As a citizen or holder of a liquor license, he has no concern with other licenses or applications and cannot raise technical objections to the same. It is i the province of the attorney general to represent the public.</p> <p>(2) Liquor Licenses. Several Licenses for Same Premises.</p> <p>While petitioner was the holder; of a valid and subsisting license for the sale of intoxicating liquors, the license commissioners issued another liquor license for the same premises to another person.</p> <p>Held, that the rights and privileges of the petitioner were not affected by such action, since neither license operated to put licensee in possession of the premises, nor were the laws concerning rights in real estate or the relation of landlord and tenant affected by the issuance of such licenses.</p>

<p>(1) Pleading. Amendment. Entry of Judgment.</p> <p>After a demurrer had been sustained on substantial grounds, April 21, 1908, plaintiff did not except to such decision, but on June 30, 1908, moved to-amend the declaration.</p> <p>Held, that, the court had authority in its discretion to permit such amendment before the entry of judgment.</p> <p>(2) Amendment. New Cause of Action. Statute of Limitations.</p> <p>Where an amendment-to a declaration does not state a new or a different cause of action than the one originally and insufficiently declared upon, but. is merely a more detailed explanation of a fact stated in the original declaration, the superior court has discretion to permit the amendment, although the period of the statute of limitations has elapsed.</p> <p> Blodgett, J., dissents. </p>

<p>Mechanic's Lien.</p>

<p>(1) Special Appearance. Jurisdiction.</p> <p>A party filing a special plea or motion does not submit to the jurisdiction of the court and thereby waive his special plea, when such plea being overruled, he excepts and proceeds to a trial upon the merits. After verdict, he can again in the appellate court insist upon his plea to the jurisdiction.</p> <p>(2) Service of Writ of Summons.</p> <p>Service of a writ of summons upon a manufacturing corporation was made as appeared by the return by leaving a copy of the writ with the secretary of the defendant.</p> <p>Held, that, as under the provisions of C. P. A., § 526 (now Gen. Laws, 1909, cap. 300, § 4) service of a writ of summons upon the secretary of a corporation as such, can only be made when the action is against a bank or insurance company, and no other valid service appeared from the return, there was no legal service of the writ.</p> <p>(3) Service of Writs. Acts of Incorporation. Judicial Notice.</p> <p>Gen. Laws, 1909, cap. 32, § 15 provides that “every act of incorporation shall be so far deemed a public act that the same may be declared on and given in evidence, without specially pleading the same.” The court taking notice of an act of incorporation which provides that the corporation shall have a place of business in a designated city will assume that it has complied with this requirement, thus showing that where service of a writ was made upon the company in another town that such service was not at the office of the company.</p> <p>(4) Equity. Injunction Against Action at Law. Adequate Remedy.</p> <p>Upon a bill in equity brought to enjoin further proceedings in an action at law where service of the writ is alleged to have been defective, it appearing that complainant appeared specially in such action only to contest the jurisdiction and there excepted to the denial of its motion to dismiss the writ, all of its rights are reserved if the action is sought to be further prosecuted and the bill will be dismissed.</p>

<p>Bill for instructions on facts fully set forth in opinion.</p>

<p>Debt on Judgment.</p>

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

<p>Petition for New Trial under Gen. Laws, 1909, cap. 297, § 2.</p>

<p>(1) Evidence. Sales. Work and Labor.</p> <p>While a party may show by expert testimony the defects existing in the work sued for, and the cost of remedying those defects, he cannot show general repairs made by him upon the article some time after it had been delivered to him by plaintiff and the price of such repairs.</p> <p>(2) Evidence. Sales.</p> <p>A bill rendered to one party to a suit by a third party does not prove itself or prove that the work therein referred to was done or necessary to be dope or that the amount of material charged for was used upon that job or that the prices charged for the same were proper and reasonable.</p> <p>(3) Evidence.</p> <p>In an action for work and labor, defendant who has set up in recoupment certain expenses incurred by reason of alleged defective work by plaintiff, ■ cannot inquire of a witness who has not been shown to be an expert in plumbing or cost of repairs thereto; what it cost to have the work repaired.</p> <p>(4) Work and Labor. Acceptance of Work.</p> <p>Where defendant took his boat away without waiting to signify approval or disapproval of the work done and materials furnished upon it by plaintiff, and it also appeared that the agent of defendant was about the boat during the time it was being repaired and had an opportunity to report upon the work before defendant sailed, the court properly charged the jury that they should consider whether or not defendant by his conduct did apparently accept the work.</p>

<p>Bill in Equity. Heard on certification under Gen. Laws, cap. 289, § 35.</p>

<p>(1) Mechanic’s Lien. Segregation of Materials. Separate Tracts.</p> <p>In a single notice of claim of lien, petitioner’s claim was stated as being for certain materials to be used in the construction of a certain building upon “those certain lots of land with buildings, laid out and designated as lots numbered 11, 12, and 15,” on a certain plat.</p> <p>In the single statement of their account, filed as the commencement of legal process, the claim was stated “to the extent of one-third of account set forth in detail and annexed hereto in that certain building and the land on which it is located, described as: (a) the southerly half of that lot designated as number 11 on the X. plat; and one-third of account in that certain building and the land on which it is located described as (b) the northerly half of the same lot, and one-third of account in that certain building and the land on which it is located, described as (c) lot 15 on the same plat:—</p> <p>Meld, that the case was governed by McElroy v. ICeily, 27 R. I. 64, and petition must be dismissed.</p>

<p>(1) Landlord and Tenant. Surrender and Acceptance.</p> <p>Defendant a monthly tenant upon giving notice of intention to move was informed by plaintiff that the notice was insufficient, and that rent for the succeeding month would be claimed. Plaintiff also wrote defendant to same effect, and suggested necessary precautions to prevent damage to the premises. Plaintiff also at an interview with defendant insisted that he should claim an additional month’s rent. After defendant moved, plaintiff ascertained that the water had frozen and defendant left a key with plaintiff for the purpose of having the plumbing repaired. No other keys were delivered, and plaintiff, after repairing the plumbing, had certain ordinary repairs made such as are commonly made while a tenant remains in possession. Some of this work was done prior to the termination of the period for which plaintiff claimed rent, but without objection from defendant, who came to the house while the work was being performed: — ■</p> <p>Held, that there was no surrender and acceptance of the premises, and that plaintiff was entitled to recover for the month in question.</p> <p>(2) Landlord and Tenant. Termination of Lease. Surrender and Acceptance.</p> <p>The relation of landlord and tenant cannot be determined except by the expiration of the lease where there is a lease for a fixed term or, in case of a tenancy from year to year or from month to month by notice given in accordance with the statutory requirements, except by the surrender of the premises by the tenant and the acceptance of such surrender by the landlord. Whether or not there has been such acceptance or surrender is to be determined by the intention of the parties, and this intention is to be determined by their acts and words.</p> <p>(3) Right of Landlord to Enter Abandoned Premises.</p> <p>In case of abandonment of leased premises by a tenant it is the landlord’s right, to enter and do such work as is necessary for the protection of the property and entrance for such purpose and the performance of such work will not convert a mere abandonment by the tenant into a surrender and an acceptance thereof.</p>

<p>Petition for trial.</p>

<p>Petition for a trial by a garnishee.</p>

<p>(1) Landlord and Tenant. Demand Necessary Before Forfeiture. Tender.</p> <p>Under a covenant in a lease, whereby lessee agreed to pay the stated rent on the eleventh day of each month and in case of failure to pay any rent within. ten days subsequent to the time, that lessor might terminate the lease, lessee made tender of the rent due on the 11th of a month to the lessor on the 22nd of that month which was refused and lessor brought ejectment.</p> <p>Held, that demand by the lessor was necessary before he could declare a forfeiture and that the tender on the 22nd, prior to the declaration of forfeiture, was a good tender and precluded lessor from thereafter declaring a forfeiture.</p>

<p>■(1) Levy of Execution. Injunctions. Equity. Unanswered Case in District Court. Jury Trial.</p> <p>JRespondent entered a writ in a district court against petitioner and claimed jury trial on entry day. The case was unanswered but was certified to the superior court under C. P. A., § 273 and was by the superior court returned to the district court because it was unanswered and so not in order for a jury trial, and was defaulted in the district court. Execution was taken out and levied and bill filed by petitioner (defendant) to restrain the levy, and vacate the judgment. Preliminary injunction was granted: — On appeal</p> <p>Held, that as the bill did not allege that the judgment was obtained by fraud, or surprise, or that there was lack of service of the writ, or that there was any accident, mistake or unforeseen cause, but on the contrary showed that the whole conduct of the petitioner was mere negligence, he could not now complain of any of the proceedings taken.</p> <p>Held, further, that the fact that the clerk of the district court certified the case to the superior court was an act for which the plaintiff in the action was not responsible, and did not work a discontinuance of the case.</p> <p>(2) Claim of Jury Trial on Entry of Writ. Unanswered Cases. Certification to Superior Court.</p> <p>Where a case is entered in a district court and jury trial claimed by plaintiff on entry day and such case is unanswered the provisions of C. P. A., § 271 (Gen. Laws, 1909, cap. 286, § 6) control C. P. A., § 273 (Gen. Laws, 1909, cap. 286, § 8) and the case should remain in the district court and be there defaulted, as no issue has been made needing a jury trial.</p> <p>(3) Equity. Meritorious Defence Necessary Allegation for Relief. Executions.</p> <p>Held, further, that the bill was fatally defective in that it contained no allegation that complainant had any defence to the original action.</p> <p>(4) Executions. Injunctions. Equity. Defence to Action.</p> <p>It is a well settled principle of equity that an injunction will not issue to restrain the levy of an execution or vacate a judgment unless it appears from the bill that the complainant has a meritorious defence to the action.</p>

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

<p>(1) Contracts. Guaranty. 0¶er.</p> <p>Defendant, a stranger to the plaintiff and the father of the president of its corporate debtor, wrote to plaintiff explaining the condition of the debtor, and the status of plaintiff’s account, and gave his opinion that time was needed and expressed the hope that plaintiff would be liberal with debtor, adding the statement “and you will get every dollar due you. Understand that your claim will be in any event preferred.” “In either case it calls for time which I feel you will agree with me you should grant them under the circumstances if you can be assured you are not to suffer by the delay. Trusting you will consider this carefully before taking any step that would add to their further embarrassment and with my assurance that your interests will be protected by them.”</p> <p>Plaintiff replied thanking defendant for the information and stated that a proposition had been written to defendant’s son which he would doubtless submit to defendant, which proposition was a suggestion that the corporation note with endorsement of defendant, among others, be given plaintiff.</p> <p>Plaintiff claiming that defendant by his letter guaranteed its claim brought suit to recover on such guaranty:—</p> <p>Held, that the letter could not be construed as such a guaranty but even if sent and received as an offer of guaranty, it was not accepted by plaintiff who submitted a proposition thereafter to the son of defendant, which was never accepted.</p>

<p>■(I) Equity. Dower. Superior Court.</p> <p>'The Superior Court has jurisdiction of suits for dower under its general equity powers.</p> <p>(2) Demand for Assignment of Dower.</p> <p>A demand for assignment of dower is not necessary to maintain a suit in equity by a widow for dower either under the general equity jurisdiction of the Superior Court or under Gen. Laws, 1909, cap. 329, § 15.</p> <p>(3) Writ of Dower. Detention. Damages. Demand.</p> <p>■Gen. Laws, 1909, cap. 329, § 7, is in derogation of common law right, and must receive strict and literal construction, and relates solely to proceedings by writ of dower, and furnishes the exclusive remedy for detention of dower and recovery of damages therefor, and while demand by the widow is necessary under such statute, neither allegation nor proof of demand is required in equitable suits for recovery of dower.</p> <p>■(4) Dower. Description of Estate of Husband-.</p> <p>In an equitable suit for assignment of dower, an allegation that complainant’s husband was seized in fee simple and possessed of the lands out of which dower is sought, is a sufficient allegation of his estate therein. .•</p> <p>■(5) Dower. Description of Estate of Husband.</p> <p>In an equitable suit for assignment of dower, it is an essential allegation that the husband in his life time and during the intermarriage was seized and possessed of an estate of inheritance in the lands out of which she seeks to be endowed. But this requirement is fulfilled by an allegation that he was-within such time seized and possessed of the lands in fee-simple.</p> <p>(6) Dower. Description of Lands.</p> <p>In such suit where the several original tracts as owned by the husband are-described by metes and bounds and by reference to the deeds and the records, thereof by which the husband acquired them, it is unnecessary for the complainant to describe subsequent subdivisions of- the tracts. All that is. necessary is for the widow to show that during her coverture the husband was seized of an estate of inheritance in certain lands which were conveyed by him and in which she has not relinquished her right of dower.</p> <p>(7) Dower. Defence to Bill.</p> <p>It is not necessary for such bill to show whether the husband deceased testate or intestate or whether the widow accepted any provision of a will in lieu of dower. It is a matter of defence.</p> <p>Neither is it necessary to aver that the husband did not die seized of lands in which the widow is dowable other than those described in the bill. That, is also a matter of defence.</p> <p>(8) Equitable Suit for Assignment of Dower. Joinder of Parties Respondent.</p> <p>In an equitable suit for assignment of dower it is necessary that the owners of all the land in which the widow claims to be dowable should be joined under the provisions of Gen. Laws, 1909, cap. 329, § 15.</p> <p>(9) Dower. Description of Property of Respondents.</p> <p>In an equitable suit for assignment of dower the widow may join divers, respondents without stating what their respective interests are in the several pieces of property, since they may well be supposed to have better sources-of information than complainant.</p> <p>(10) Allegation of Ownership in Respondents. Dower.</p> <p>In an equitable suit for assignment of dower a general allegation of ownership-in the respondents and the source of their title is sufficient to apprise them of the complainant’s claim in that particular and is enough to put them upon their defence.</p> <p>(11) Equity. Dower, in Less Than all Lands of Which Widow Dowable.</p> <p>A bill in equity for assignment of dower which seeks to have dower set off in any less than all the lands of which the widow is dowable at the time of' bringing the suit cannot be maintained under Gen. Laws, 1909, cap. 329, § 15.</p> <p>Such a bill might be maintained under the general equity jurisdiction of the court, for separate suits could be brought to have dower assigned out of' each several parcel of land.</p> <p>(12) Dower. Lands Conveyed by Husband.</p> <p>A widow is not entitled to have dower set off to her out of lands conveyed to-others by the husband in his lifetime, if the husband at his decease was. seized and possessed of other lands out of which her dower might be assigned.</p> <p>(13) Dower. Joinder of all Parties Owning Land in Which Dower is Sought.</p> <p>A bill in equity for assignment of dower brought under Gen. Laws, 1909, cap. 329, § 15,' which is the exclusive remedy for the purpose of obtaining an assignment of dower in several parcels of land in one suit, must be brought against all persons owning the land out of which dower is sought, although it is not necessary to include those with whom settlements had been made.</p> <p>(14) Equity. Dower. Multifariousness.</p> <p>A bill in equity under Gen. Laws, 1909, cap. 329, § 15, may be brought against any number of respondents irrespective of their community of interest in the lands out of which dower is sought.</p> <p>(15) Dower Set Off in Special Manner.</p> <p>Gen. Laws, 1909, cap. 329, §§ 2 and 17 recognize the fact that peculiar conditions may exist wherein it will be equitable to set out dower in an extraordinary maimer and the provisions of § 17 are broad enough to include a suit in equity under § 15. Such a bill might also be maintained under the general equity jurisdiction of the court.</p> <p>(16) Dower. Described Owners of Tracts.</p> <p>. Where a bill in equity seeks to have dower set off out of several tracts it need not show who are the owners at the time of the filing thereof of each of the. tracts described, if it shows who are the owners of all the tracts.</p>

<p>(1) Criminal Lav}. New Trial.</p> <p>The general rule laid down in Wilcox v. R. I. Co., 29 R. I. 292, that the verdict of a jury when approved by the justice who presided at the trial, will be sustained by the court, in the absence of anything to indicate that the jury were improperly influenced or that the judge erred in his ruling, can properly be applied also in criminal cases and for the same reasons.</p> <p>(2) Rape. Evidence. Hearsay Rule. Res Gestos.</p> <p>A statement of the prosecutrix made on the' street about half past three o’clock, about an hour after the assault was alleged to have occurred in the house, is admissible as a part of the res gestae, where it appears that she had made previous complaints to members of the household as they arrived soon after the commission of the offence and also accused defendant to his face when he arrived after being sent for, her conduct appearing perfectly consistent in her complaints and accusal.</p> <p>(3) Evidence.</p> <p>Where a witness had testified that the prosecutrix had made a complaint to him as chief of police, “ Q. Against whom?” — exception—A. (defendant). Q. “And in consequence of the complaint did you issue the complaint in this case? A. I did.”</p> <p>Held, that defendant was not prejudiced.</p>

<p>(1) Master and Servant. Due Care. Contributory Negligence in Law.</p> <p>A machinist accustomed to the workings of machines though claiming he was not acquainted with windmills, sent aloft sixty feet to ascertain and remedy a defect in the operation of the windmill, with a wind blowing and the mechanism in motion, realising the necessity of first lashing the wheel and having the means at hand for lashing it, is bound to a degree of care commensurate with the dangers to which he was exposed and his admission that he knew the piston rod would work if the mill was not lashed is evidence of such contributory negligence in not fastening it as suffices in law to bar recovery.</p>

<p>Complaint against a member of the bar.</p>

<p>Bill in Equity to set aside mortgagee’s sale.</p>

<p>Probate Appeal.</p>

<p>(1) Master and Servant. Negligence. Burden of Proof.</p> <p>Upon the issue as to whether defendant used a valve and pipe which were defective, which defect it knew or would have known had it used due care, the accident being the same as that before the court in Mulvey v. Providence Gas Co., 30 R. I., 547, and the evidence tending to establish facts substantially similar to those in such case, the court is unable to find any negligence on the part of defendant, leaving the cause purely conjectural, and the plaintiff has failed to sustain the burden of proof.</p>

<p>Trespass and Ejectment.</p>

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

<p>Trespass on the Case for negligence. Heard on questions' certified by Superior Court.</p>

<p>(1) Sureties. Contribution. Giving Time to Principal. Agreements. Entry. Record. Judgments.</p> <p>Plaintiff and defendant were co-sureties on a bond given to release an attachment conditioned as follows: — “ If the final judgment shall be forthwith paid and satisfied after the rendition thereof (in case said judgment shall be rendered against the said defendant) then this obligation shall be null and void; otherwise, shall be and remain in full force and effect.” After verdict against the principal for $6,323.85, the case being in the Supreme Court on exceptions the following agreement signed by counsel, was filed May 26, 1909. “Bill of exceptions withdrawn and case remitted to the Superior Court for further proceedings,” and the same day the following agreement was filed in the Superior Court. “ In the above entitled cause it is agreed that the following entry be made. Judgment and execution stayed until June 26, 1909. Upon payment of $5,625.00 on or before June 25, 1909, case to be entered settled, otherwise execution to be issued on June 26, 1909, for full amount of judgment, interest and costs.” This agreement was signed by the parties and by the court. July 1, 1909, an agreement of settlement was entered, and the same day plaintiff paid to the plaintiff in the original action the sum of $5,625.00.</p> <p>Plaintiff brings assumpsit against defendant his co-surety for contribution to the extent of one half of the amount paid.</p> <p>Held, that the agreement filed in the Superior Court was the joint petition of both parties that a certain record be made, and being signed by the justice, the petition was granted and the clerk empowered to make such record, and the paper being filed by the clerk it was made a part of the record of the case, whether formally extended at that time upon the record books or not.</p> <p>Held, further that the meaning of the entry was that judgment was entered for the plaintiff on the verdict on May 26, and execution stayed until June 26. Therefore final judgment was rendered and entered and the sureties became liable on the bond unless the stay operated to discharge them.</p> <p>Held, further that the burden of proof to show that the whole transaction extended the time by which in the ordinary course of litigation the judgment creditor could have obtained execution against his judgment debtor, was upon the surety and defendant had failed to sustain such burden.</p> <p>Held, further that while a surety who voluntarily pays a debt before he is under legal liability so to do, cannot enforce contribution against his co-surety, yet in this case, as plaintiff did not pay the money until July 1, he did not pay the debt before he was under a legal obligation to do so.</p>

<p>Criminal Complaint. Certified on constitutional questions.</p>

<p>(1) Partnership. Capital. Dissolution. Profits. Depreciation of Capital.</p> <p>A. and B. were co-partners a provision of their articles of agreement as to dissolution being as follows: — “After all tlie affairs of the copartnership are adjusted and its debts paid off and discharged, then all the stock and stocks as well as the gains and increase thereof which shall appear to be remaining, either in money, goods, wares, fixtures, debts or otherwise, shall be divided equally between the parties.”</p> <p>A. contributed $500 as his share of the capital and B. contributed certain apparatus. The firm was also indebted to A. for money loaned.</p> <p>Upon the question of the distribution of the assets in dissolution;—</p> <p>Held, that there being no indebtedness to creditors of the firm, the money loaned by A. should first be repaid and then the amount of capital contributed by A. and B., should be adjusted and paid, before any division of profits should be made.</p> <p>Held, further that the depreciation caused by the use of the apparatus contributed by B. should be borne by the firm, and having been ascertained the amount found to be due should be repaid him, each partner contributing one-half.</p> <p>Held, further that if the capital contributed by A. had also suffered a loss, that should be ascertained as well and repaid in the same manner, and thereafter a division of the profits should be made in the proportion provided by the agreement. '</p>

<p>(1) Pleading. Writ in Case; Declaration in Trespass. Evidence. Blasting.</p> <p>In a writ and declaration the action was styled “ an action of the case,” and the declaration stated that it was the duty of the defendant “ to exercise due proper and reasonable care in the control, management and operation” of his premises and in the blasting or quarrying of rock or stone and to give to travelers due proper and sufficient notice of such blasting so that they would not be injured.</p> <p>The declaration alleged as to the wrongful act complained of; “that said (deceased) was in the exercise of due care and was driving a horse and wagon over said avenue and while driving as aforesaid and in the exercise of due care he was struck with a certain stone which was thrown by blasting from said ledge over said highway, which said blasting was done by said defendant” etc. The declaration did not state whether or not the accident was due to negligence.</p> <p>Held, that the declaration sounded in trespass, and such declaration founded on a writ sounding in case was permitted under C. P. A., § 246, so that the action was in form an action of trespass and not an action on the case’for negligence, and hence evidence offered in regard to the negligence of defendant in the matter of the use of explosives was strictly inadmissible, but being offered by plaintiff, he could not on exceptions to denial of a new trial by Superior Court, after verdict for defendant, object to its effect upon the jury.</p> <p>Held, further that the effect of the charge to the jury was to eliminate any consideration of the general and conflicting testimony as to defendant’s negligence in preparing and operating the blast, narrowing the case down to the question of the sufficiency of the warning given by defendant and the contributory negligence of deceased.</p> <p>(2) Trespass. Blasting. XJse of Premises.</p> <p>Negligence need not be shown in order to recover for damage done by matter thrown from the premises of defendant by blasting, resulting in injury or death to a person traveling on a highway.</p> <p>(3) Contributory Negligence. Blasting. Trespass.</p> <p>Contributory negligence, is a bar to recovery in cases of this character as in other cases of personal injury or death.</p> <p>(4) Trespass. Blasting. Contributory Negligence.</p> <p>Defendant engaged in blasting upon his premises, sent an employee to warn travellers on the highway, to a point sufficiently far from the blast to be a safe place to wait until after the blasting was over.</p> <p>There was ample evidence to warrant the jury in believing that full and explicit warning was given deceased and it being undisputed that he was in a safe place when the warning was given and voluntarily disregarded the warning and moved forward into a place of danger when he met his death, a verdict for defendant approved by the trial judge will not be disturbed.</p>

<p>(1) Town Council. Salaries Limited by Vote of Financial Town Meeting. Defendants were elected as a town council, and at a financial town meeting subsequent to their qualification it was voted “that the annual salary of each member of the town council shall be fifty dollars, which sum shall be his full compensation for all services performed by him as a member of the town council, or on any committee thereof, or for any services performed by him for the town in any capacity during the term for which he is elected.”</p> <p>Held, that following Quinn v. Barber, 31 R. I. 538, the vote constituted a limitation upon any appropriation for the payment of the salaries during the year and the town treasurer could not exceed such limitation, and the town was entitled to recover any excess of such salary paid to the members.</p>

<p>(1) Negligence. Pleading. Collision. Incompetent Servants.</p> <p>In an action for negligence arising out of a collision between the wagon of plaintiff and one of defendant’s cars the declaration charged as the sole breach of duty, the hiring of incompetent servants to operate the car. It appeared in evidence that plaintiff suddenly attempted to cross the track in front of the car, without notice or warning, at so short a distance as to make it impossible to stop the car, without collision; that plaintiff being in a covered wagon could not testify as to the cause of the accident, nor was any witness called on this point by him:—</p> <p>Held, that the evidence neither supported the allegation of the declaration nor showed negligence on the part of defendant.</p>

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

<p>Indictment charging an assault with a dangerous weapon.</p>

<p>(1) Criminal Law. Policy Lottery. Complaints.</p> <p>Upon a complaint charging defendant with knowingly having in his possession a certain bill, slip, certificate, token and other device and article such as is used in carrying on, promoting and playing the game commonly known as policy lottery and policy, evidence showing that defendant had in his possession a slip of paper which was the record of the drawing of that day in the game of policy, which record was necessary in promoting the game, and that defendant when asked about the drawing of that day had, in response produced the slip, was sufficient to establish the allegations of the complaint.</p> <p>(2) Evidence.</p> <p>In a criminal complaint charging defendant with knowingly having in his possession a “policy slip,” a witness for the State was properly asked if he knew from his experience and knowledge what a certain slip of paper shown to him, was.</p> <p>(3) Evidence.</p> <p>In a criminal complaint charging defendant with knowingly having in his possession a “policy slip,” a witness who had testified that he had played the game for years was asked: “For what purpose are those policy slips shown by the writer to the player? A. Because lots of people play policy and like to see the drawing, even though they don't play today, they like to see the drawing. Q. And to whom are such slips delivered? A. To the writer.”:—</p> <p>Held, admissible and relevant.</p> <p>(4) Evidence.</p> <p>In a criminal complaint charging defendant with knowingly having in his possession a “policy slip,” evidence of a conversation between a police officer and defendant was introduced, wherein defendant was asked where he got the policy slip, and gave his explanation of how it came into his possession, and thereafter he was asked to read the slip, and he did so:—</p> <p>Held, that the evidence was admissible since the fact that he read the slip showed that defendant had knowledge of its significance and purpose.</p> <p>(5) Evidence. Policy Lottery.</p> <p>In a criminal complaint charging defendant with knowingly having in his possession a “policy slip,” “Q. What if anything did defendant say to you about that slip? A. He said it was a policy slip. Q. And you asked him what those numbers on the top'meant and he told you it meant September 13th, drawing one? A. Yes,” was admissible as showing that defendant knew the slip was a policy slip.</p> <p>(6) Policy Lottery. Constitutional Law.</p> <p>Chapter 376 of the Public Laws passed at the January session, 1909, in amendment of and addition to Chapter 283 of the Gen. Laws, 1909, of lotteries, policy-lotteries, etc., is not obnoxious to the provisions of Cons. R. I. Article I, sections 6, 10, and 14.</p>

<p>(1) Minors. Contracts. Rescission. Intoxicating Liquors. Sale to Unlicensed Minor.</p> <p>In an action of assumpsit brought by a minor to recover back the purchase price of a liquor saloon and its contents, it appeared that after six weeks he made a formal tender of the saloon and contents and key accompanied by a written rescission of the contract:—</p> <p>Held, that the sale was not within the rule contended for by defendant, that a minor could bind himself by a contract beneficial to him, inasmuch as a minor is disqualified by law from obtaining the license required for engaging in the liquor business.</p> <p>Held, further, that in thus selling liquors to a minor, defendant committed an illegal and criminal act.</p> <p>Held, futher, that as under the provisions of Gen. Laws, cap. 123, §§ 7, 60, and 61, an unlicensed adult would be entitled to recover so much of the purchase money as represented the price of the liquors sold, so much the more would an unlicensed minor be entitled to recover under similar circumstances, and therefore the objection of defendant that the liquors returned were not equal in value to those sold, was untenable, even if defendant were otherwise entitled to be placed in statu quo.</p> <p>(2) Minors. Misstatement of Age. Contracts.</p> <p>A minor is not prevented from disaffirming a contract and upon return of what . he received, suing for the purchase price, because of a 'misstatement of his age, inasmuch as such a misstatement would not give him the capacity to contract.</p>

<p>Criminal Appeal.</p>

<p>(1) Separation Agreement No Bar to Criminal Prosecution for Neglect to Provide.</p> <p>An agreement of separation between husband and wife, which has been fully complied with by the husband, and in which the wife agrees that she will release the husband from all claims for support, is not a bar to a criminal prosecution by the State against the husband charging neglect to provide according to his means for the support of his wife under Gen. Laws, 1909, cap. 347, § 39.</p> <p>(2) Obligation of Support of Wife Cannot be Contracted Away.</p> <p>The legal obligation of the husband to support the wife according to his means or ability is an inseparable incident of the relation of husband and wife, which cannot be contracted away in such manner as to release the husband from liability to criminal prosecution at the instance of the State.</p> <p>(3) Certification of Question of Doubt or Importance to Supreme Court.</p> <p>Gen. Laws, 1909, cap. 298, § 5, provides that “ If in any proceeding civil or criminal, in the Superior Court or in any District Court, prior to the trial thereof on its merits any question of law shall arise which in the opinion of the court is of such doubt and importance and so affects the merits of the controversy that it ought to be determined by the Supreme Court before further proceedings, the court in which the cause is pending may certify such question to the Supreme Court for that purpose:—</p> <p>Held, that, the statute excluded doubtful questions which were not important", as well as important questions which were not doubtful, and both classes of questions unless they so affected the merits of the controversy as to require the decision of this court, and all such elements must be first found to exist by the court before which the cause was pending.</p> <p>Speculative and moot questions are not to be so certified under a pro forma ruling because of an agreement of counsel.</p> <p>Quare; Whether the words “prior to the trial thereof on the merits” refer to the Superior Court, when there has been a previous trial in the District Court on the merits.</p> <p>(4) Criminal Law. Pleading. “Special Plea in Bar.” “Not Guilty.” Certification of Question of Doubt to Supreme Court.</p> <p>In a criminal complaint against a husband charging neglect to provide according to his means for the support of his wife, defendant filed a “ special plea in bar” setting up an agreement of separation between himself and his wife by which the wife agreed to release him from all claims for her support, etc.:—</p> <p>Held, that proper practice in criminal pleading required a plea of “ not guilty.”</p> <p>Held, further, that as matter of law the facts stated in the plea did not release defendant from criminal prosecution on the above charge, and as evidence must be offered to show the actual facts as to each of the parties, the plea in itself without more was worthless in determining the guilt or innocence of defendant and hence the question certified was of that class which the statute did not contemplate should be sent to the supreme court, since the negative answer of the court settled nothing material to the determination of the case.</p>

<p>(1) Probate Law. Trial of Probate Appeal while another Appeal Pending.</p> <p>"While two appeals were pending from decrees of a probate court, one being for the sale of real estate, and the other for an allowance of an account of an' executrix, and the first appeal having reached the Supreme Court on exceptions, the second came on for trial and appellants moved that it be taken from the jury on the ground that the appeal being tried in the body of the former appeal, the verdict might be inconsistent with the opinion of the Supreme Court in the first appeal:—</p> <p>Held, properly denied.</p>

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

<p>Criminal Complaint.</p>

<p>(1) Evidence. Bonds. Res Gestee.</p> <p>In an action against a surety upon a bond, the evidence of a witness who saw defendant sign the blank bond, as to the signing of the bond and defendant’s stipulations at the time is competent as a part of the res gestee.</p> <p>(2) Replevin. Bonds. Agency. Principal and Surety. Res Adjudicata.</p> <p>A replevin bond was signed, “Frank O. Stone by Henry M. Wood,” and by-two sureties. It appeared that the bond was signed by the defendant surety in blank at the request of Wood and delivered to Wood upon the express stipulation that it was signed for Stone and only on condition that it was to be sent to Stone who was away to be signed by him as principal, and that he (defendant) never authorized its delivery to anyone except on this express condition. The bond was signed by Wood, as above, and delivered to the officer:—</p> <p>.Held, that (1) the bond was not a valid statutory bond. This fact having been so decided by both the district and superior courts, without exception or objection to such decision is res adjudicata in the case at bar, and an inspection of the bond shows that it is not in compliance with Gen. Laws, 1896, cap. 272, § 3 (now Gen. Laws, 1909, cap. 336, § 3).</p> <p>(3) Bonds. Delivery. Escrow. Principal and Sureties.</p> <p>Held, further, that no valid delivery of the bond was ever made so as to make it binding upon the surety, but the delivery was simply in escrow, conferring no authority upon Wood to sign Stone’s name and deliver the bond, in its invalid form to the officer.</p> <p>(4) Bonds. Sureties Not Bound Unless Principal Signs.</p> <p>Held, further, that the bond without the signature of the principal obligor was void, as to the sureties.</p> <p>(5) Bonds. Putting Obligee on Notice. Replevin.</p> <p>Where an officer is tendered a bond in replevin not in accord with the statute, the execution thereof in the name of the principal by a third party, is sufficient to put him upon inquiry whether the sureties who had signed the bond •could be held thereunder.</p>

<p>(1) Unrecorded Plat Used in Sale of Land. Easements. Ways.</p> <p>Where there is no grant of a right of way by express terms in a deed or by reference to the plat and no claim of a right of way acquired by implication by reason of any actual existing way in use as an apparent and continuous easement and no claim of a right of way by necessity, a grantee acquires no right of way in a street delineated upon an unrecorded plat used by grantor in advertising and selling his land, merely by the exhibition to grantee of the plat prior to the sale of the land to him, on which plat there was a street delineated and shown under the name of Conimicut avenue, and on which the land purchased'by grantee abutted, and therefore grantee is not entitled in equity to have the way opened and laid out as shown upon said plat.</p>

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

<p>Trover and Conversion.</p>

<p>Bill in Equity.</p>

<p>Bill in Equity.</p>

<p>Appeal from a decree of a town council defining a highway.</p>

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

<p>(1) Life Insurance. Payment of Premiums by Third Party.</p> <p>A life insurance policy is not void because the premiums have been paid by someone not the assured or beneficiary or by one having no insurable interest in the life of the assured, whether or not he paid them in the belief that he was named as beneficiary or that he could collect upon it. The policy is notwithstanding binding upon the company which must pay it according to its terms on death of assured.</p> <p>(2) Life Insurance. Rescission. Lapse. Recovery of Premiums.</p> <p>Where payments were made on a life insurance policy by one who was the agent of the assured and also the agent of a third party (plaintiff) who claimed to have paid the premiums under the belief that she was named as beneficiary in the policy, such policy being a valid obligation of the company so long as the premiums were paid and having been allowed to lapse before plaintiff made known to the company any claim of right thereunder, plaintiff had no right of rescission and no claim to recover any premiums paid by her.</p> <p>(3) Life Insurance. Insurance Broker. Agency.</p> <p>An insurance broker is ordinarily one who is engaged in the business of procuring insurance for such persons as apply to him for that service. He is usually the agent of the insured and though under special circumstances he may be the agent of the insurer the mere fact that he receives a commission from the insurer for placing the insurance with him does not change his character as agent of the insured, and where the regular agent of another company entered into an agreement with the sub-agents of defendant company to turn over surplus business to them for a share of their commissions he was acting purely in the capacity of a broker.</p> <p>(4) Life Insurance. Insurance Brokers. Agency.</p> <p>The regular agent of an insurance company entered into an agreement with the sub-agents of defendant company, to turn over surplus business to them for a share of their commissions. He was not known to the defendant or to then- general agents and it did not appear that the sub-agents had any authority to employ agents.</p> <p>Held, that he was not the agent of defendant in any sense except possibly to deliver policies entrusted to him by the sub-agents and collecting the first premiums thereon, and defendant was not responsible for his conduct in misrepresenting the contents of a policy, or in misstating the law as to insurable interest, to a person who as a result paid premiums on a policy issued to a third person in the belief that she was the beneficiary under such policy, and that such premiums so paid could not be recovered from the company.</p> <p>(5) Life Insurance. Claim to Proceeds of Policy. Notice.</p> <p>Policies issued upon the life of assured on his own application, payable to his personal representatives, are valid contracts, entitling the administrator to payment on proof of loss, and the fact that a person who had paid the premiums under the belief that she was the beneficiary notified the general manager of the company after death of assured that she had paid the premiums and had held the policies and claimed to be entitled to some or all of the money, was no more than notice of her claim against the estate for reimbursement or claim to the proceeds of the policies at variance with their terms, and the company was justified'in making payment to the beneficiary named in the policy.</p> <p>(6) Life I. surance. Rescission. Laches.</p> <p>Where through the misrepresentation of an insurance broker plaintiff paid premiums on an insurance policy under the belief that she was the beneficiary, and had actual notice from the broker at least a year before death of assured that she was not named as beneficiary therein and further notice more than two months before death of assured to the same effect from other sources, by waiting until the death of assured and the absconding of the broker before making her claim to the company and by permitting the policy to get into the hands of the person lawfully entitled to the same, even if plaintiff had at any time any rights in the policy, it was too late then for her to rescind or to maintain any claim against the company for the money paid by her for premiums.</p> <p>(7) Rescission. Laches.</p> <p>Rescission for fraud or mistake is a purely equitable right and must be exercised with great promptness after discovery of the truth and can only be exercised when the other party can be placed in statu quo. If while one delays after having knowledge of the facts the position of the other party has altered, the right to rescind is lost.</p>

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