Volume 33 — Rhode Island Reports

<p>(1) Stocks. Brokers. Pledges.</p> <p>Where stocks which had been deposited by customers with a broker as margin, were by him re-hypothecated with complainant bank, as the broker in fact only exercised the right to repledge, the questions as to what were the terms of the contract between the broker and his customers and what may have been the rights thereby conferred upon the broker are immaterial to a decision as to whom the balance of the collateral and proceeds remaining after a sale by the bank of the property so pledged to it, belong.</p> <p>(2) Stocks. Brokers. Pledgor and Pledgee.</p> <p>Where a customer through a broker purchases stocks on a margin, the parties occupy the relation of pledgor and pledgee respectively of the stock purchased.</p> <p>(3) Stocks. Brokers. Pledges. Powers.</p> <p>Even though the power of sale as well as of hypothecation is given to a broker over stock deposited with him by his customer, the mere existence of such a power does not of itself, establish a general property in the stock in the broker. Such title could be acquired or transferred only by the actual execution of the power, and where a broker while continuing to hold as pledgee property which had been pledged to him by his customers, repledged the stock with a sub-pledgee, the right of the customers to redeem their stock continued.</p> <p>(4) Pledge. Right to Surplus.</p> <p>A stockbroker re-pledged stock which had been pledged to him by his customers, with complainant bank. The claim of the bank against the broker which was collected by resorting to the collateral which the broker had pledged, was greater than the aggregate amount of the indebtedness due the broker from all the original pledgors and exceeded that aggregate in- . debtedness by more than the total value of the broker’s own property included in the pledge.</p> <p>Held, that the customers were entitled to the portion of the pledge remaining unsold and to the surplus proceeds of that which was sold, as against the trustee in bankruptcy of the broker, since their relation to the bank was that of sureties, at least to the extent which their individual property exceeded in value the amount of the broker’s lien upon it. The property of the broker should have been first applied and that of the sureties should have contributed pro rata only to the payment of the balance of the indebtedness, but as the property was not thus equitably applied, and as the value of such property of each of the parties could be ascertained, the rights of the parties should be established by subrogation.</p> <p>(5) Exceptions. Appeal and Error. Report of Master.</p> <p>Exceptions to the action of a master in admitting and rejecting testimony, where the rulings of the master are merged in his findings on the main points, which are also excepted to, are not before the court as separate grounds for review.</p> <p>(6) Stocks. Delivery to Transfer Title.</p> <p>Gen. Laws, 1896, cap. 177, § 20 (now Gen. Laws, 1909, cap. 213, § 20) provides that the delivery of a stock certificate transferable only on the books of the corporation, on surrender of the certificate, to a bona fide purchaser or pledgee for value, together with a written transfer of the same or a written power of attorney to sell, assign and transfer the same, signed by the owner of the certificate, shall be a sufficient delivery to transfer the title against all parties.</p> <p>Held, that this did not define, vary or enlarge agreements between owners of • stock and others, but simply provided what should be a sufficient delivery to transfer title. Whether a given transaction was an absolute transfer or pledge depended upon the intention and agreement of the parties.</p>

<p>(1) Mortgages. Brokers. Agency. Equity.</p> <p>Mortgagor paid the principal of a mortgage to the broker who negotiated the loan, and the broker failed to pay it over to the owner of the mortgage and latter started foreclosure. The broker did not have the mortgage or note in his possession, and no authority to receive the money was shown, and the owner was ignorant of such payment.</p> <p>On bill brought to restrain foreclosure:—</p> <p>Held, that mortgagor was not entitled to relief.</p> <p>(2) Bills and Notes. Mortgages.</p> <p>A mortgage is valid to secure the note of a husband, although the wife may not be bound upon the note.</p>

<p>(1) Equity. Appeal. Filing Transcript When Time Extended.</p> <p>Where the time for filing a transcript of testimony in an appeal in equity, is extended under Gen. Laws, 1909, cap. 278, § 4, the appellant may under the provisions of cap. 289, § 26, file the transcript at any time within ten days after the end of this extended period.</p>

<p>(1) Bankruptcy. Discharge. Attachment Bonds. Judgment.</p> <p>The discharge of a defendant in bankruptcy, duly pleaded by him, does not bar the prosecution of a claim to judgment when the suit was commenced more than four months prior to the commencement of proceedings in bankruptcy by the attachment of personal property of defendant, which attachment was discharged by the giving of a bond with sureties, with a condition that the same should be null and void if the final judgment in the action should be forthwith paid and satisfied after the rendition thereof.</p> <p>(2) Bankruptcy. Attachment Bonds. Special Judgment.</p> <p>In a suit wherein defendant has duly pleaded a discharge in bankruptcy, but which suit was commenced more than four months prior to the commencement of the proceedings in bankruptcy by the attachment of personal property of defendant, which attachment was discharged on the giving of bond with sureties, with condition that the same should be null and void if the final judgment should be forthwith paid after the rendition thereof, the court can render a special judgment against the defendant with a perpetual stay of execution against him for the purpose of enabling the plaintiff to bring suit against the sureties on the bond.</p>

<p>(1) Appeal and Error. New Trial. Direction of Verdict.</p> <p>An exception to a refusal to direct a verdict, is waived by a motion for a new trial.</p> <p>(2) Menial Condition of Party to Suit. Procedure.</p> <p>In an action of assumpsit with pleas of general issue and the statute of limitations, the mental competency of plaintiff is not put in issue, and the court properly refused to submit to the jury special issues in respect to such mental condition.</p> <p>All men of full age are presumed to be of sound mind and competent to attend to business, which presumption continues until overthrown by proof. A party to a suit desiring to inquire into the mental condition of the other party must have resort to appropriate proceedings for that purpose.</p> <p>(3) Evidence. Question for Jury.</p> <p>A request to charge as to what was or was not shown by the evidence was properly refused, that being a matter for the determination of the jury.</p> <p>(4) Bills and Notes. Interest.</p> <p>A request to charge that a promise to pay the notes held by plaintiff was not a promise to pay the interest which had accrued on the notes was properly refused, since a promise to pay the notes was a promise to pay them according to their tenor.</p> <p>(5) Statute of Limitations. New Promise.</p> <p>In an action of assumpsit with plea of statute of limitations evidence considered and held to show a new promise.</p> <p>(6) Ambiguity. Evidence.</p> <p>Where an ambiguity exists in a writing introduced in evidence the jury have the right to say in what sense the writer intended the writing to be understood.</p>

<p>(1) Contracts. Fraud. Negligence.</p> <p>A person is bound by an agreement to which he has assented where his assent is uninfluenced by fraud, violence, undue influence or the like and he will not be permitted to say that he did not intend to agree to its terms.</p> <p>It is the duty of every contracting party to learn and know the contents of a written contract before he signs and delivers it.</p> <p>But where one party is induced by false statements of the other to sign the same he is not bound thereby and may defend on the ground of fraud even though he was negligent in signing without reading it.</p> <p>(2) Contracts. Fraud. Negligence. Question for Jury.</p> <p>In an action to recover the price of goods sold, defendant’s testimony tended to prove that plaintiff wrote an order for what defendant had not agreed to buy on the chance of its not being read. The testimony of plaintiff was contradictory.</p> <p>Held, that the case should have been submitted to the jury since when plaintiff undertook to write the order he was bound to write it according to the-agreement and if it did not embody the agreement and was signed by inadvertence or negligence that would not preclude defendant from avoiding it on the ground of fraud.</p> <p>Blodgett J. dissents.,</p>

<p>(1) Equity. Tender. Interest. Mortgages.</p> <p>In equity except in cases where the existence or preservation of the right depends solely upon a payment or tender, the rule is, although not universal, that a tender is not necessary as a prerequisite to bringing suit for relief and in such cases a failure to make a tender before suit affects merely the right to interest and costs.</p> <p>A note secured by mortgage carried interest at the rate of 2 per cent, per month, payable monthly in advance till the principal sum was paid, whether at or after maturity, all interest in arrears to bear interest at same rate till paid. On bill for an accounting by mortgagor, decree was entered permitting him to redeem by payment of the amount found due, with simple interest at 6 per cent, from the filing of the bill.</p> <p>Held, that as there was no tender to stop the interest the mortgagee was entitled to interest at the rate provided in the note.</p> <p>(2) Costs. Equity.</p> <p>While the allowance of costs on final decree is in the discretion of the court costs which have been paid by a party as a condition of the reinstatement of the cause, should not be recovered back.</p> <p>(3) Mortgages. Technical Foreclosure. Power of Sale.</p> <p>Provision in a decree that upon failure of mortgagor to redeem within the time limited, mortgagee should be at liberty “to foreclose the mortgage,” does not limit him to a technical foreclosure by suit in equity, but may be regarded as equivalent to the words, “liberty to sell under the power of sale in the mortgage.”</p>

<p>(1) Evidence. Hostile Witness.</p> <p>A witness who shows himself hostile may properly in the discretion of the court be asked leading questions and be cross-examined by the party calling him and the court may also interrogate the witness in an attempt to ascertain the truth.</p> <p>(2) Evidence. Compromise.</p> <p>Where an attempt to arrange a settlement between husband and wife had been the subject of an extended examination and cross-examination by counsel in a divorce proceeding, objection to other evidence on the ground that the matter was a negotiation for compromise came late, but the whole subject clearly having no influence upon the final decision, the action of the court in admitting and rejecting evidence on the subject did not constitute reversible error.</p> <p>(3) Evidence. Confidential Communications.</p> <p>Former counsel for petitioner being called, by respondent was asked, “Did you at any time make an investigation into the matter while you were counsel for petitioner?” Excluded. Held, error, since it did not call for disclosure of information gained from confidential communications on the part of his client.</p> <p>“ Q. As a result of any investigation made by you what action was taken with reference to prosecuting this case.”</p> <p>Held, properly excluded, since the only action witness could take would involve confidential communications with his client, and otherwise the record of the case would furnish ample evidence.</p> <p>“ Q. Did you through any source while acting for petitioner get any knowledge with reference to this matter upon which you relied acting in this case, with reference to eliminating that matter?”</p> <p>Held, properly excluded, since it should have excluded information obtained from petitioner, and because it called for witness’s opinion as to the value of the evidence regarding a certain part of the case which was being pressed by her present counsel and also because it was indefinite.</p> <p>“Q. Did you at any time drop the matter or eliminate it from this case for any reason?”</p> <p>Held, properly excluded, since so far as striking out parts of the petition or bill of particulars the record showed the action taken, and so far as it called for the state of his mind and professional intention which must have depended upon conferences with his client it was improper.</p> <p>(4) Findings of Fact by Justice Sitting Without Jury. Review. ■</p> <p>The determination of issues of fact tried before a justice of the superior court sitting without a jury, is entitled to as great consideration as is given to the action of the justice in passing upon the verdict of a jury upon the evidence and the court will not disturb the findings of fact made by a justice in a divorce proceeding unless such findings clearly fail to do justice between the parties.</p> <p>(5) Evidence. Suppression of Testimony.</p> <p>Suppression of testimony by a party is a matter to be given great weight in reaching a conclusion as to the truth of charges made against such party.</p>

<p>(1) Weight Given to Findings of Justice in Equity Appeal.</p> <p>Where there is nothing in the transcript of evidence taken in the Superior-Court and on which an appeal in equity is heard, to indicate that the justice-of that court erred in any of his findings, his conclusions are entitled to great weight and should not be disturbed except for good and sufficient reasons.</p> <p>(2) Execution of Powers of Sale in Mortgages.</p> <p>In the absence of statutory requirement parties may agree upon the manner in* which powers of sale in mortgages shall be exercised.</p> <p>(3) Terms of Sale. Mortgages.</p> <p>While terms of sale need not be contained in the foreclosure advertisement, whether they are so announced in such advertisement, or at the time and place of sale, they should be reasonable and calculated to attract rather than repel bidders.</p> <p>(4) Mortgages. Earnest Money. Foreclosure.</p> <p>Whether a stipulated amount of the purchase money required to be paid down at a foreclosure sale, is reasonable or not, depends upon the circumstances of each particular case, and the court cannot say as matter of law, irrespective of the facts that 20 per cent, is prima facie too large and therefore inequitable and void in every case.</p>

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

<p>(1) “Defaulted” Cases. Final Judgment.</p> <p>The entry “defaulted” made by a district court under the provisions of Gen. Laws, 1909, cap. 286, § 6, is not a judgment but the preliminary entry upon the record of 'defendant’s default in not answering the case upon the entry day. Upon this is based the subsequent proceedings leading up to the entry of the final judgment by default. Over this final judgment entered upon motion and proper proof of claim, the district court is given control for six months under cap. 294, § 2, and has jurisdiction to hear and determine motions to set aside such final judgment when such motions are made during said period of six months.</p>

<p>(1) Bill of Exceptions. Form.</p> <p>After decision by a justice sitting without a jury, defendant filed its bill of exceptions in'which it stated no exception save the one taken to the decision, in the words “upon the 10th day of May, 1910, the court gave its decision in said cause for the plaintiff for the amount of the balance shown to be remaining in the hands of said defendant to which decision the defendant duly excepted,” and prayed that its bill of exceptions might be allowed. On motion to dismiss, held; — -that it conformed to the requirements of the statute. •</p> <p>Moore v. Stillman, 28 R. I. 483 and Pales v. Pales, 29 R. I. 303 overruled.</p> <p>(2) Stating Exceptions Clearly and Separately.</p> <p>Gen. Laws, 1909, cap. 298, § 17, provides that the party prosecuting the exceptions, shall file “ his bill of exceptions in which he shall state separately and clearly the exceptions relied upon.”</p> <p>Reid, that the purpose of the statute was not to require the excepting party to elaborate his exceptions, or to set forth the reasons for his allegations of error or to outline the argument which he intends to make, but merely to . collect from all parts of the record and bring together the precise exceptions taken in the travel of the case and upon which he then wishes to stand.</p> <p>By stating each ruling to which he has taken an exception upon which he still relies, and also the fact that in due season he excepted to such ruling and also the page of the transcript where the exception is noted (if taken in the course of the trial) he has “separately and clearly stated” the exceptions relied upon.</p> <p>Blodgett, J., dissents.</p>

<p>(1) Form of Bills of Exceptions.</p> <p>After decision by a justice sitting in a jury trial waived case, defendant excepted to such decision. In its bill of exceptions it recited the decision for the plaintiff “and after said decision exceptions thereto were duly taken which exceptions set forth in detail are” and in numbered paragraphs assigned ten reasons for its contention that the decision was erroneous.</p> <p>Held, that the only duty of an exception to a decision being to bring upon the record the fact that the party has made his legal objection to the decision, the mere exception unaccompanied by reasons was all that was required, and such exception taken by defendant was sufficient and in proper form.</p> <p>Held, further, that the truth of defendant’s exception would be established by striking from the bill of exceptions the ten alleged exceptions, containing >the reasons for the exception taken.</p> <p>{2) Form of Bills of Exceptions.</p> <p>Except the formal parts in which the party identifies the ease and trial and concludes with a prayer for its allowance by the justice, a bill of exceptions should contain only an enumeration of the rulings and the exceptions thereto actually taken, in the form in which they were taken, stated separately and clearly, the only question for the court and counsel being as to whether the exceptions were actually taken, the validity of such exceptions being for this court.</p> <p>Following Blake v. Atlantic Natl. Bank, 33 R. 1.109.</p>

<p>(1) Building Laws. Erection. Alteration. Statutes.</p> <p>Application was made to the inspector of buildings of the city of Providence for a permit to make a certain alteration to an existing stable, so that it might be used as a theatre. The plans and specifications were approved and a permit issued. At the time of granting such permit the building laws of said city were comprised in a special statute pertaining only to said city, Pub. Laws, 1909, cap. 472, and containing in sec. 27 provisions relative to the construction of “every new building hereafter erected or altered, to be used as a theatre.” With this statute the plans and specifications conformed, including the requirements relative to inner courts or passageways.</p> <p>At the January Session, 1911, Pub. Laws, cap. 702, was passed, providing that every theatre thereafter erected should be built to comply with the requirements of said chapter, with changed requirements as to open courts. The act took effect upon its passage, at which time the roof had been removed with the greater part of the interior fittings, but certain posts, the boiler room and office were undisturbed. Eight feet of the front wall had also been removed, and a concrete foundation for new walls had been built and some excavation made. Cement and brick had been contracted for.</p> <p>Held, that the principal object was the construction of the theatre and not the conservation of the stable, and if portions of the latter remained in the new structure it would still constitute the erection of a theatre, rather than the alteration of the stable.</p> <p>Held, further, that the theatre within the meaning of chapter 702 was not erected at the time said act went into effect.</p> <p>(2) Construction of Statutes.</p> <p>In the absence of express intent to the contrary statutes should be construed as prospective and not retrospective.</p> <p>(3) Construction of Statutes. Title of Act.</p> <p>Where there is doubt or obscurity in the body of an act, the title may be consulted as a guide to the probable meaning of the legislature and should be accorded some weight in the interpretation.</p> <p>(3) Construction of Statutes. Police Power. Vested Rights.</p> <p>Pub. Laws, cap. 702, January Session, 1911, entitled “an act in amendment of chapter 131 of the General Laws, entitled ‘of diminishing danger to life in case of fire,’” is in the exercise of the police power, and is an amendment of a prior act, and also of a special act relating to the city of Providence, the effect of chapter 702 being to make the requirements more rigorous. It affects all theatres not theretofore erected and includes all theatres in process of erection irrespective of the beginning of the work, and no “vested rights” of a party who has commenced work prior to the passage of the act can prevent its enforcement.</p> <p>(4) jDefinition of Term by Statute. “Open Court."</p> <p>I?ub. Laws, 1911, cap. 702, provides that every theatre thereafter erected —shall have an open court or space in the rear and on the side not bordering on the street where said building is located on a corner lot and on the rear and both sides of the building where there is but one frontage on the street. Said open courts shall be at least six feet wide throughout their length and shall extend the full length and width of the building and across on each side and rear thereof where its side or sides do not abut on a street or alley and shall be the same width at all points, etc.</p> <p>Held, that Pub.Laws, cap. 472, sec. 27, having defined an “open court” as one completely open overhead, it was not necessary to repeat the definition and the term as used in cap. 702 had a similar meaning.</p>

<p>(1) Rules of Supreme Court. Jurisdiction. Establishing Truth of Exceptions.</p> <p>The provision of rule 13 of the supreme court requiring the petitioner in a petition to establish the truth of exceptions, within twenty four hours after its filing to deliver to the adverse party or his attorney of record a copy of the petition and of the affidavits, is jurisdictional, and where there is no proof of compliance with the rule, the petition will be dismissed.</p>

<p>(1) Town Councils Have Exclusive Control of Highway Repairs.</p> <p>Under the provisions of Gen. Laws, 1909, cap. 83, sec. 1, the town councils of the towns are given exclusive control over the repair and improvement of the highways, causeways and bridges within their respective towns, and the action of a financial town meeting in appointing a committee to supervise highway and bridge improvements and repairs and to expend the appropriations therefore, is invalid.</p>

<p>(1) Trespass Quare Clausum. Pleading. Burden of Proof.</p> <p>In an action of trespass quare clausum where the declaration alleged seisin in fee simple as well as possession of the locus, the plea of (a) liberum tenementum; (b) of a public highway and (c) of a private way, admitted possession of plaintiff and the commission of the acts complained of, and being traversed cast the burden of proof upon defendant.</p> <p>(2) Same.</p> <p>In an action of trespass quare clausum, replication setting up (a) adverse possession and (b) abandonment, to a plea of a private way, denies the existence of such right of way and casts the burden of proof of such adverse possession and abandonment upon plaintiff.</p> <p>(3) Trespass Quare Clausum. Pleading.</p> <p>In an action of trespass quare clausum defendant pleaded (a) the general issue; (b) a public highway; (c) a private way and (d) liberum tenementum.</p> <p>Held, following Lavin v. Dodge, 30 R. I. 8, that the plea of the general issue would be disregarded.</p> <p>(4) Deeds. Streets. Title in Streets. Boundaries.</p> <p>Where the owner of land platted it and sold lots thereon bounding the same on a street or way, the adjacent lot owners by such conveyances acquired a right of way over the same, and title in fee not only in the lot described as bounding on the way, but also in one-half of the width of the way in front of and adjacent to his lot.</p> <p>(5) Trespass Quare Clausum. Deeds. Occupation Dines.</p> <p>In an action of trespass quare clausum, where the later conveyances had been made by occupation lines rather than by metes and bounds, courses and distances, plaintiff could properly show what he and his ancestors in title had actually occupied and enclosed under a claim of right and what the defendant and her ancestors in title had actually occupied.</p> <p>.(6) Extinguishment of Easement. Evidence.</p> <p>In an action of trespass quare clausum where defendant pleaded that the locus was a private way; as it appeared that the locus had been enclosed for many years, on the east by a stone wall; by a fence on the west and the land so’ fenced off had been for many years in the use of the plaintiff and defendant for purposes incident to private ownership and inconsistent with its use as a way, and so far as appeared had never been used as a way by anyone, plaintiff could properly show all the facts and circumstances of the original building of the fences and the occupation of the land, so as to show that the original easement imposed on the land had either been extinguished or renounced by the parties entitled to the fee in the land covered by the way, by their use and occupation thereof, and by the maintenance of the fences.</p> <p>.(7) Estoppel. Deeds. Easements. Extinguishment.</p> <p>'The fact that deeds to a party and his ancestors in title mentioned a way, lane or street as a boundary of the land does not estop him from showing an extinguishment of the easement either by mutual abandonment or by adverse possession.</p> <p>'.(8) Trespass Quare Clausum. Evidence.</p> <p>In an action of trespass quare clausum question asked of plaintiff, “At the time you were purchasing that land did grantor take you over the land?” was admissible, as the land being bounded on one side “by a lane,” plaintiff might properly show the location of the “lane,” thus defining the extent and limits of the lot claimed by his 'grantors and of which they put him in possession.</p> <p>As there were no physical indications of a “lane,” plaintiff had the right to establish by parol evidence the actual occupation line of the lot so bounded, and the admissions and declarations of his grantor, who was then deceased, were admissible for that purpose.</p> <p>(9) Easements. Extinguishment. Declarations. Evidence.</p> <p>'The declarations of his grantor were also admissible upon the question of grantors’ “adverse possession,” as tending to show extinguishment or abandonment of the easement once existing over a portion of the land conveyed by the deed.</p> <p>■(10) Possession. Evidence. Declarations.</p> <p>Declarations by persons in possession of lands as to the character of their possession, are admissible upon the question whether such possession was adverse.</p> <p>(11) Adverse Possession. Use and Occupation.</p> <p>In an action of trespass quare clausum, plaintiff might properly be inter- . rogated as to his use and occupation of all the land included within the fences of his lot from the time he received the deed, for the purpose of establishing a title by “adverse possession” through the plaintiff and his ancestors in title. It was also pertinent to the question of the abandonment of an alleged right of way for the defendant; also in proof of the possession by plaintiff of said land at the time the first trespass was committed.</p> <p>(12) Trespass Quare Clausum. Evidence. Adverse Possession. Extent of Premises Conveyed.</p> <p>In an action of trespass quare clausum evidence of an ancestor in title of plaintiff is admissible to prove that the description in the deed from him to his. grantee included all and was the same as the land described in plaintiff’s declaration; that he held it in full “adverse possession” and the actual extent and limits of the premises intended to be and actually conveyed by him and the condition of the land adjoining him on the north during his said ownership.</p> <p>(13) Trespass Quare Clausum. Fence as Boundary Line. Evidence. Adverse-Possession.</p> <p>In an action of trespass quare clausum plaintiff might properly prove that the division fence between plaintiff and defendant had been recognized and acquiesced in by the parties as a true dividing and boundary line for a length of time greater than or equal to the period prescribed by the statute of limitations.</p> <p>(14) Trespass Quare Clausum. Evidence. Commission of Trespass.</p> <p>In an action of trespass quare clausum plaintiff may show by testimony-corroborative of his own, the commission of the trespass alleged.</p> <p>(15) Decision by Justice Sitting Without Jury. Exceptions.</p> <p>Gen. Laws, 1909, cap. 298, sec. 10 provides that “Exceptions to rulings, directions and decisions made during a hearing in a cause heard by the court without a jury or during a trial by a jury shall be taken immediately; exceptions to a decision upon a motion for a new trial or to the final decision in a cause heard by the court without a jury may be taken by filing the same-in the office of the clerk within seven days after notice of the decision.</p> <p>In an action tried before a justice sitting without a jury at the conclusion of plaintiff’s testimony and after a long argument upon the evidence, decision was given and five days thereafter exception was taken to such decision.</p> <p>Held, that, the decision was not made “during a hearing” in the sense of the statute, and exception was taken in due time.</p>

<p>Bill in Equity.</p>

<p>(1) Corporations. Contracts. Stocks and Stockholders.</p> <p>Plaintiff was the owner of certain shares of the X. Co. The directors of defendant corporation (which was authorized to purchase stock of other corporations) voted to purchase all available stock of the X. Co. at $45 a share. Thereafter the president of defendant, who was also a director and general manager agreed with plaintiff for the purchase of her stock, giving plaintiff about $27 a share, by the terms of which agreement plaintiff delivered her stock in the X. Co., and received shares in defendant company, redeemable at a stipulated price at any time after six months from the date of such transfer. A new certificate in the X. Co. was issued to defendant. At various times plaintiff presented her certificate for redemption, and was paid by the treasurer of defendant, from its funds, for a portion of the shares and a new certificate issued for the remainder, leaving a balance of 900 shares which had been tendered and payment refused. The stockholders of defendant never ratified the agreement made by its president, nor were the re-purchases ratified by any formal vote of the directors. The X. Co. through the control of its stock by defendant was put into liquidation and most of its assets absorbed by defendant.</p> <p>Held, that defendant having express authority to hold stock in other companies and the directors having voted to purchase the stock of the X. Co., without specifying who should do the purchasing, the president and general manager was the proper and logical agent to carry such vote into effect.</p> <p>Held, further, that the vote did not prohibit the purchase of stock at a less price than that fixed, nor did it prohibit defendant from obtaining longer terms of payment; and the effect of the agreement was simply to postpone the time of payment.</p> <p>(2) Corporations. Ultra Vires. Ratification of Act of Officer.</p> <p>Where the president and, general manager of a corporation assumes to act in its behalf and for a purpose authorized by its charter and by vote of its directors, and the terms of the contract are made known to the treasurer who acting upon the agreement issues stock certificates to the other party and pays out funds of the company, and after knowledge of such contract by the directors they make no offer to return the consideration received by the corporation, but continue to retain the benefit of it, the corporation thereby ratifies the act of its officer.</p> <p>(3) Corporations. Power to Purchase Own Stock. Ultra Vires.</p> <p>Where upon an agreed statement of facts it appears that a sale of its stock was made by a corporation upon the express condition of re-purchase of the same by the company for a fixed price and at a fixed time, such transaction constitutes a conditional sale of the stock and an indivisible contract, which (no rights of creditors or of other stockholders being involved) is not ultra vires, and vendee has a right to recover for the value of the stock at the agreed price. Whether a corporation has an implied power to purchase its own stock under other circumstances, is not decided.</p>

<p>(1) Statutes. Constitutional Law.</p> <p>Statutes should be sustained unless their uneonstitutionality is clear beyond a reasonable doubt. A reasonable doubt is to be resolved in favor of the legislative action and the act sustained.</p> <p>(2) Lobster Fishery. Constitutional Law.</p> <p>Pub. Laws, cap. 437, acts of 1909, “for the better protection of the lobster fisheries” relates not merely to a business affected with a public use and interest, but to the public use and interest itself. It is clearly within the police power of the state and the power of the legislature is not abridged by the provisions of Cons. R. I. Art. I, sec. 17, “The people shall continue to enjoy and freely exercise all the rights of fishery and the privileges of the shore to which they have been heretofore entitled, under the charter and usages of this state,” etc.</p> <p>(3) Lobster Fishery. Animals Ferae Naturae. Police Power.</p> <p>Lobsters being animals ferae naturae, the right to reduce them to possession is subject to the control of the state. This attribute of government which was recognized by the common law of England was vested in the colonial governments where not denied by their charters, or in conflict with grants of the royal prerogative. This power possessed by the colonies passed to the states and remains with them in so far as its exercise may be not incompatible with or restrained by the rights conveyed to the federal government by the constitution.</p> <p>The state may preserve by adequate police regulations a food supply, which belongs in common to all the people of the state, and which can only become the subject of ownership in a qualified way, and which can never be the object of commerce except with the consent of the state and subject to the conditions which it may deem best to impose for the public good.</p> <p>(4) Lobster Fishery. Police Power.</p> <p>The mode and method of the regulation of the lobster fishery is a matter solely for the consideration of the legislature and their action is not subject to review except upon constitutional grounds.</p> <p>(5) Lobster Fishery. Constitutional Law.</p> <p>Pub. Laws, cap. 437, acts of 1909 “for the better protection of the lobster fisheries” is not obnoxious to the provisions of Cons. R. I. Art. I, sec. 10, “ . . . nor. shall he be deprived of life, liberty or property, unless by the judgment of his peers or the law of the land.”</p> <p>Nor is it obnoxious to the provisions of Art. 14, sec. 1 oí the amendments to the constitution of the United States “ . . . nor shall any state deprive any person of life, liberty or property without due process of law . .</p> <p>Nor is it obnoxious to the provisions of Cons. U. S. Art. IV, sec. 2 “The citizens of each state shall be entitled to all privileges and immunities of citizens of the several states.”</p> <p>Such statute is a proper exercise of the police power, by the legislature in a matter concerning only the people of the state, and it was unnecessary for the legislature to consider what effect it would have upon aliens or citizens of other states, since it involves only the conservation of shellfish in the public waters of the state.</p> <p>Blodgett, J., dissents.</p>

<p>'(1) Evidence. Contracts. Admissions.</p> <p>In an action for services rendered intestate upon a promise of payment therefor, and under expectation of payment, statements on the part of deceased, admitting liability for what had been done for him may be shown.</p> <p>(-S) Evidence. Contracts. Admissions.</p> <p>In an action for services rendered intestate, a will which intestate attempted to execute is admissible, as showing an intent on the part of intestate to reimburse plaintiff.</p> <p> (8) Burden of Proof. </p> <p>A request to charge that there should be no doubt in the minds of the jury as to a certain fact was properly denied, since the law imposes no such burden upon a plaintiff.</p> <p> (4) Actions for Services Rendered. </p> <p>In an action for services rendered intestate, a request to charge that “board • and services are held to constitute a fair mutual offset” was properly denied, since it would have been in effect to charge that claimant could not recover even if the evidence established an express contract.</p> <p> (5) Actions for Services Rendered. Parent and Child. </p> <p>The fact that parties stand in the relation of parent and child puts upon one-claiming payment for services rendered to the other the burden of proving by a preponderance of the evidence an express contract for wages.</p> <p> (8) Actions for Services Rendered. Parent and Child. </p> <p>Request to charge that “a grandfather who stands in loco parentis to a granddaughter has a right to the earnings of such granddaughter so long as this-relation continues whether before or after her majority,” was properly denied, since it would deny the right to recover for services under an express-contract.</p> <p>(7) Actions for Services Rendered. Contracts.</p> <p>Where the evidence showed that deceased always promised to pay plaintiff with his real estate; and said he could pay her in no other way, and that he said the same thing on his death bed, and plaintiff performed the services relying on his promises and in expectation of being paid for them, it was not necessary that an express contract made on some particular day out of all the time that the understanding between the parties and the work thereunder continued, should be shown.</p> <p> (8) Parent and Child-. Emancipation. Contracts. </p> <p>Where it appeared that plaintiff's parents lived with her grandfather until she was five years old, that they left then and she remained with her grandparents until they died, when she was over 25 years of age, and that during the last six years her patents lived in a tenement of the same house, the-jury were properly instructed that it was not necessary to show an express agreement for emancipation, but that if there were circumstances indicating that the parents had given plaintiff the right to earn her own living, the jury could find that the child had been in fact emancipated and was entitled to the benefit of any contract for her services that she might have-made.</p> <p> (9) Contracts. Suable After Death. </p> <p>A request to charge that claimant could not recover against estate of deceased unless she proved a contract necessarily suable before his death, was properly refused, since a contract not suable until after death, is not void, and also because the request was not applicable to the evidence which showed that both parties knew deceased could not pay in the usual way, but only “by the property.”</p> <p> (10) Contracts. Burden Of Proof. </p> <p>An express contract for wages may be proved by a preponderance of the evidence and need not be proved beyond a reasonable doubt.</p> <p> (11) Contracts. Parent and Child. </p> <p>The relation of grandfather and grandchild does not cease because of a contract entered into between them, but the presumption arising from the family relationship having been overcome, the suit to recover for services rendered is governed by the ordinary rules of law.</p> <p> (12) Actions for Services. Proof. </p> <p>In an action for services rendered, against estate of deceased, evidence considered and held to sustain verdict for claimant.</p>

<p>(1) Libel. Plea of Truth.</p> <p>In an action for libel in which the truth of the publication complained of was pleaded, upon conflicting testimony, it not being clear that defendant has sustained the burden of establishing the truth of the article published by it, a verdict for the plaintiff will not be disturbed.</p> <p> (2) Libel. Plea of Truth. Burden of Proof. </p> <p>In an action for libel in which the truth of the publication complained of is pleaded, a prima facie case is made for the plaintiff by showing that the articles are libelous and that they were published by defendant, and upon the issue of truth, even if the evidence for the respective parties was equally balanced and equally discredited, the plaintiff must prevail, for the reason that defendant has failed to establish by a preponderance of the evidence the truth of the publication.</p> <p> (3) Libel. Punitive Damages. </p> <p>In an action for libel instruction to the jury that if they decided that plaintiff was entitled to punitive damages, in that case the amount was entirely in their discretion up to the ad damnum of the writ, was proper.</p> <p> (4) Libel. Truth. Malice. </p> <p>In an action for libel, instruction to the jury that if the defendant established by a fair preponderance of the evidence that the publication was true and was not actuated by malice, but was published in good faith, that it was not liable but that if it was true but was published from a malicious motive, _ it constituted no defence, was a correct exposition of the constitutional provision in this regard.</p> <p>Johnson and Sweetland, JJ. dissenting.</p>

<p>(1) Negligence. Master and Servant. Unsafe Methods.</p> <p>Plaintiff was in employ of defendant as a “yardman” and had been in its employ about a year when he was injured. He was working in a pit, in the steel plant and was inexperienced in that kind of work.</p> <p>In the bottom of the pit resting upon the dirt were round iron plates upon which east-iron ingot molds were set when lowered into the pit for the pouring. The mold tapered from top to bottom, and when in the pit rested upon its smaller end. It had two trunnions on opposite sides. When the steel was ready for a pouring, the bottom or smaller end of the mold was closed by inserting a clay brick in it and wedging it in if too small with wooden wedges. A travelling crane was 35 feet above the pit from which two hooks were suspended. The crane operator was in the crane basket connected with the travelling part of the crane. These hooks which were made in the blacksmith shop of defendant, grasped the mold by the trunnions and swung it into the air and over into the pit. The pit gang consisted of five men, a sub-foreman and four men. Two men of this gang having left, plaintiff and another workman who had been employed as yardmen were sent in to take their places. The work of the pit gang was to set molds, put in bottoms, clean the pit, etc., and each man took his turn. Plaintiff was in the pit setting ingot molds. His work was to stand in the bottom and guide the mold as it was lowered by the crane man so that it would properly rest on the plate. He had set five and was setting the sixth which had been lowered by the crane man. When it rested on the plate the trunnions were not in line with those upon the mold next to it. Plaintiff signalled the crane man to raise it a little to align it and when he again lowered it, the brick was out of the bottom of the mold on the plate; the mold struck the brick, the hooks came off the trunnions, the mold fell on plaintiff, crushing and burning him.</p> <p>There was testimony that the brick bottoms had fallen out on the average of once a week for a year, but no testimony showed a.ny knowledge of this by plaintiff and he stated that he had not been warned. There was conflicting testimony as to the dangerous character of the hook used by defendant, and as to the method of inserting the wedges.</p> <p>Held, that a verdict for plaintiff was supported by the evidence.</p> <p> ($) Pleading. Stating Employment of Plaintiff. </p> <p>An averment in a declaration that plaintiff was in employment of defendant as a common laborer, and at request of defendant was engaged at work in a certain foundry room, near a certain mold attached to a crane, alleges the employment of plaintiff with all the particularity required.</p> <p> ($) Pleading. Negligence. </p> <p>An averment in a declaration that a mold near which he was working fell upon plaintiff and that the fall was caused by some defect in the mold or its supports or connections of which defendant knew, but of which plaintiff had no knowledge and therefore could not state, is a sufficient averment of negligence.</p> <p> (4) Pleading. Negligence. </p> <p>Where a declaration does not show that the danger was obvious to the plaintiff and it expressly avers that he was inexperienced and ignorant of the danger, the court cannot say as a matter of law, that the danger was obvious.</p> <p> (5) Pleading. Surplusage. </p> <p>In an action for negligence against a master, an allegation that plaintiff was a foreigner will be treated as surplusage.</p> <p> (6) Master and Servant. Negligence. Obvious Risk. Demurrers. </p> <p>A demurrer to a declaration on the ground that the alleged danger was obvious was properly overruled where the declaration averred that plaintiff was inexperienced and did not appreciate the risks and dangers of the facts alleged as negligence, and that the place in which he was working was close and narrow and in close proximity to a wall, so that it would be impossible for him to escape.</p> <p>(7) Amendments to Declaration. New Cause of Action. Statute of Limitations.</p> <p>The allowance of an amendment to a declaration setting forth an additional ground of negligence as the cause of the same injury does not amount to the statement of a new cause of action.</p> <p>Where additional counts do not introduce a different cause of action, they are properly allowed, although the period of limitations has expired, for the amended pleading is regarded as a continuation of the original pleading and takes effect as of the date when the latter was filed.</p> <p> (8) Master and Servant. Evidence. </p> <p>Where witness had stated that he could not see the bottom of the mold at the time it fell on him because it was dark, and too high for him to go around and see, a question as to how the place was lighted was properly admitted.</p> <p> (9) Evidence. Safe Methods. </p> <p>While not conclusive on the question of negligence evidence is generally admissible in an action for personal injuries to show whether or not the master’s machinery, appliances, ways and methods are such as are in ordinary and common use by others in the same business.</p> <p> (10) Expert Evidence. Safe Methods. </p> <p>An expert witness was properly permitted to testify ás to whether in his judgment one form of hook was as safe for use as another form.</p> <p> (11) Request to Charge. Issue of Fact. </p> <p>A request to charge embodying an issue of fact which it is the province of the jury to decide is properly denied.</p> <p> (IS) Request to Charge. Direction of Verdict. </p> <p>A request to charge which in effect is a request for a direction of a verdict, is properly denied.</p> <p> (IS) Damages. </p> <p>A verdict for $11,916.00 for an injury to a man, thirty years of age who was earning $14 a week, is not excessive where he suffered amputation of his right arm, with great pain at the time of the accident and long after it, and has been unable to work since such accident and it appeared by medical testimony that he had suffered a severe and probably permanent shock to his nervous system, and would probably continue to suffer pain for the rest of his life.</p> <p>Blodgett, J., dissents.</p>

<p>(1) Street Railway. Right of Way. Duty to Look and Listen.</p> <p>The rule as to the right of way of a driver in crossing a railroad track is stated in Beerman v. Union R. R. Co., 24 R. I. 275, to be, that one would have the right of way, if, proceeding at a rate of speed which under the circumstances of the time and locality was reasonable, he reached the point of crossing in time to safely go upon the track in advance of the approaching car, the latter being sufficiently distant to be checked and if need be stopped before it should reach him. This case also states as the duty of a driver about to cross a street railway track that he shall look both ways immediately before crossing the track. These two rules are not, however, connected, and if the circumstances are such that one may cross without negligence if he looks, crossing does not become a negligent act, constituting contributory negligence, because he fails to look before he starts.</p> <p>The rule stated in Price v. Rhode Island Co., 28 R. I. 220, that “the obligation to look and listen when approaching a track upon which cars are run, is so well established as the duty of a prudent person that a neglect of it must be held to be negligence in law,” was not intended to declare that a lack of prudence shall be charged against a plaintiff if it does not at all contribute to the injury.</p> <p>(£) Same.</p> <p>Where there was testimony which would warrant a jury in finding that in accordance with the rule stated in the case of Beerman v. Union R. R. Co., deceased might have prudently gone upon the track, the fact that he did not look before he started to cross would not take away the right. For while, where a driver has the right of way he is still required to exercise reasonable care, his right of way is not dependent upon the fact that he looked up and down the track immediately before going upon it.</p> <p>(3) Private Driveway.</p> <p>The fact that deceased was crossing at a private driveway, did not affect his rights or the application of the rule.</p> <p> {/¡) Last Clear Chance. Negligence. </p> <p>■Although a person is guilty of negligence in driving upon a track, and while on the track is still careless in failing to look towards an approaching car, if the motorman knows that unless measures are taken to check the speed of the car, injury will follow, it is his duty to take such measures as he reasonably can to cheek the speed of the car and avert the accident, and failure so to do, would be the proximate and efficient cause of the accident, and the failure of such person to look, continuing up to the time of the impact of the car, does not relieve the defendant from liability if its motorman neglected to make reasonable efforts to stop the car when he saw the dangerous situation.</p> <p>(3) Negligence. Signals. Proximate Cause.</p> <p>Request to charge that “whether the gong on the car was rung previous to the moment when the deceased drove upon the track is immaterial, as it was as much his duty to look and listen for an approaching car at that moment as it was the duty of the motorman to give warning,” held properly refused, as whether warning was given was a material matter bearing upon the question of the care or negligence of the motorman, and might become the determining factor in the case.</p> <p> (6) Negligence. Wanton Recklessness. </p> <p>Although a person is lacking in vigilance and care, after getting upon a track, • yet if the motorman does not exercise reasonable care after he knows of the peril of such person in attempting to cross the track and such care would have averted the accident, plaintiff can recover, even though the action of the motorman does not amount to wanton recklessness.</p> <p>(7) Damages. Death by Wrongful Act.</p> <p>In an action under the statute for recovery of damages for death by wrongful act, there can be no recovery for loss of future income of invested capital when such income is disconnected with the exertions of the deceased, nor for any income from invested capital beyond such portion of said income which can be found to be the result of such exertions.</p> <p> (8) Same. </p> <p>In an action for recovery of damages for death by wrongful act, charge of the court as to the measure of damages approved as a correct statement of the law in that respect.</p> <p>Blodgett, J., dissents.</p>

<p>(1) Taxation. Payment Under Protest.</p> <p>Plaintiff sent to a tax collector a check for the amount of the tax levied against him, containing on the face of the cheek the words “paid under protest” and accompanied by a letter stating that cheek was enclosed to cover tax and “I hereby enter my protest against the assessment and payment of' the above tax.” The collector gave plaintiff his tax bill receipted and endorsed on its face “protest on file.”</p> <p>Held, that the protest was sufficient.</p> <p>Sweetland, J., dissents.</p>

<p>(1) Wills. Trusts.</p> <p>Testator devised certain homestead and other real estate in trust, to permit his wife to have the use thereof, free of rent during her life, and by the 19th clause of his will, devised and bequeathed his residuary estate in trust, with provision that in the event there was no issue of testator living at his death, the trustees should (1) “forthwith transfer and convey” the stock of various companies to his brother, if living, and in the event of his death, to the issue of said brother; (2) to stand seizsd of testator’s residuary real estate to the use of testator’s brother, if living, but in the event of his death, to the use of the children or more remote issue of said brother; (3) to stand seized of the remaining parts of the residuary personal estate to transfer one-quarter part to testator’s mother for her absolute use; one-quarter part to his brother, if living, but in event of his death to the children or more remote issue of said brother; to hold one-quarter part to pay over the income to testator’s wife until her death or marriage, and to hold the remaining one-quarter to pay over the income to his sister for life.</p> <p>Testator deceased without issue. His brother deceased in the lifetime of testator leaving issue a son.</p> <p>By the 20th clause of the will testator provided that the trustees “shall collect the income, dividends and profits from said residuary estate and said trust properties, estate and premises respectively, and the investments and reinvestments of the same, and shall pay therefrom all taxes, assessments, insurance premiums, repairs and all other expenses incurred in the care and management of said trust estate and also all upon or in respect of my homestead and other estate devised in trust for my wife; and including their own reasonable compensation.”</p> <p>Held, that it was the intention of testator clearly expressed that in the conditions existing at the time of his death, certain portions of the residuary estate should pass out from the trusts and that the trustees should not. collect the income from such portions, and it was only upon the income dividends and profits arising from “the residuary estate and said trust properties, estates and premises respectively and the investments and rein-vestments of the same” that the taxes and expenses of the homestead estate were charged.</p> <p>Held, further, that a specific direction to forthwith transfer and convey cannot be limited or controlled or the gift cut down by the language of a later general direction to trustees to collect the income from the residuary estate and trust properties.</p> <p>Held, further, that while there was the clear intention that the widow should have the use of the homestead estate free from rent and that it should be-exonerated from payment of taxes and other expenses, it was equally clear that it was his intention that the income of one-fourth part of his remaining residuary estate held in trust for her should in any event bear a portion of the burden of taxes and expenses, not only of the homestead estate, but also of the other trust properties and pay a portion of the compensation of the trustees, so that there was no general intention to be found in the will favoring' the income of that portion, or preventing a construction which would increase the burden upon such portion.</p> <p>Held, further, that with reference to the residuary real estate there being no-charge thereon or upon its income rents and profits, either by express provision or by necessary inference, the trust was executed by the statute of uses and the legal title vested at once.</p> <p>Held, further, that it was the intention of testator that the homestead expenses, be paid from the residuary trust estate, and in the circumstances which arose, certain portions passing out of the trust, such expenses were properly payable from the income of so much of the residuary personal estate only as was transferred to and came under the control of the trustees.</p> <p>(£) Wills. Expressed Intention.</p> <p>An expressed intention in a will must control unless such intention is clearly modified or annulled by some other provision, or unless upon examination of the whole will there appears an implication to the contrary so plain as necessarily to require this apparent intention to be disregarded.</p> <p>(iS) Wills. Construction. Omissions.</p> <p>Courts cannot determine by mere conjecture that testator omitted from his will provisions that he would have incorporated, if he had not overlooked probable future occurrences and undertake to rectify such omission, for to do so would be to incorporate by construction a new clause in the will. This would not only be contrary to the will as made, but would be making a new will.</p> <p>C4) Wills. Intention.</p> <p>In seeking the intention cf a testator the court must consider what he has written in the will and nothing is to be inferred save what is a necessary implication, and this means not natural necessity, but so strong a probability of intention, that an intention contrary to that which is imputed cannot be supposed.</p> <p>(S) While the court, after it has found that there has been an “ omission” in a will, and that such omission was inadvertent, may modify the will to supply such omission, this power will be exercised only in extraordinary cases, and then with the greatest caution, when the necessity is clearly presented.</p>

<p> Garnishment. Stocks. Jurisdiction. Foreign Corporations. </p> <p>Shares in a foreign corporation having no duly appointed attorney in this state cannot be reached by garnishment of certificates in the possession of a person in this state.</p> <p>Johnson, J., dissenting.</p>

<p> (1) Certification of Question to Supreme Court. </p> <p>A question should be certified to the Supreme Court only after it has been formally raised on the record, and is presented to the trial court in some appropriate proceeding and the ruling of that court is requisite thereon.</p> <p> (2) Appeal. Amendment. Certification of Question to Supreme Court. </p> <p>Cap. 50, sec. 43, Gen. Laws, 1909, provides, that in appeals from decrees of municipal bodies, the appellant shall within the time limited, file a specific statement of his reasons of appeal, to which he shall be restricted, unless for cause shown, and with or without terms, the Superior Court shall allow amendments thereof and additions thereto:—</p> <p>Held, that the court must determine among other questions the materiality of the proposed amendment, and should refuse to permit an amendment, constituting an immaterial reason of appeal to be made.</p> <p>Held, further, that the granting of permission to amend being an adjudication by the court that in its opinion such an amendment constitutes a valid ground of appeal, while subject to exception, it is nevertheless its judgment on that question, and such question cannot thereafter be by it certified as doubtful.</p>

<p>(1) Sales in Bulk Law.</p> <p>Pub. Laws, cap. 3&7, passed April 14, 1909 (Sales in Bulk Law), provides, that the transfer of property as therein defined, “shall be fraudulent and void as against all persons who are creditors of the transferrer at the time of such transfer,” unless the conditions of the statute shall have been complied with.</p> <p>In an action of replevin by the transferee under a bill of sale, against the officer attaching under a writ in which a creditor of the transferrer was plaintiff, certified upon an agreed statement of facts:—</p> <p>Held, that as it did not appear that the attaching creditor was a creditor at the time of the transfer, the sale was valid.</p>

<p> (1) Ballots. Elections. </p> <p>A cross in one circle on a ballot is nullified by a cross in another circle on the same ballot and the ballot must be rejected, even if the nominees are identical in the two columns.</p> <p>Ballots marked (a) with a cross in the circle, and a second cross below the circle and to the right of it; (b) with a cross in the circle and crosses to the right of the name of every candidate in that column and to the left of the name of every candidate except three; (c) with individual crosses to the right and to the left of each candidate in the column; were properly rejected.</p> <p>A ballot is properly rejected which is marked with crosses to the left of file-names of candidates in the column, although it shows an attempt to erase some of the crosses so marked on the left, since Gen. Laws, 1909, cap. 11, § 44 provides for ballots spoiled thi’ough inadvertence.</p>

<p>{!) Procedure. Trespass and Ejectment. Default. Claim of Jury Trial. Where a writ of trespass and ejectment is entered in a district court with a claim for jury trial, and defendant fails to enter appearance before the end of the session, the claim for jury trial should be disregarded and the case defaulted under the provisions of Gen. Laws, 1909, cap. 286, § 5, and it is the duty of the court to enter judgment and issue execution in accordance with law, unless execution had been stayed in some proceeding begun for the purpose of removing the default.</p> <p> (3) Entry of Appearance. Default. </p> <p>The receipt by a clerk of a district court through the mail of an entry of appearance for defendant in an action of trespass and ejectment on the day following the entry day of the writ is without legal effect since the right to answer ceased at the close of the session of the court upon entry day.</p> <p> {3) Removing Default. Accident and Mistake. </p> <p>Where it was the duty of a district court to have defaulted a case and to have entered judgment, if defendant claims its failure to answer was due to accident, it should, in a proper proceeding, move the court to set aside the default and judgment which, according to law, should have been entered and which in such proceeding could be treated as actually entered.</p>

<p>(Í) Taxation. Assessment. Rendering Account.</p> <p>Notice was given by assessors of taxes to bring in accounts of ratable estates, at a designated place on the fifth and twelfth of October, at which place and on which days they would meet to assess the tax ordered by the town. The tax was assessed November 9:—</p> <p>Held, following Matieson v. Warwick & Coventry Water Co., 28 R. I. 570, that the notice was defective.</p> <p> ($) Tax Sale. Statute of Limitations. </p> <p>If proceedings to sell for taxes were illegal no lapse of time can change their character, and if a tax purchaser holds possession until protected by the statute of limitations, he then becomes safe, not because his title is any more regular, but because the holder of the better title has become incapable of asserting it.</p>

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

<p> (1) Witnesses. Mental Competency. </p> <p>As a man is presumed to be sane, until shown to be otherwise, the statement in a bill of particulars that the plaintiff was suffering from paranoia was not sufficient to establish his incompetency to testify.</p> <p> (0) Municipal Corporations. Actions. Evidence. Public Highways. </p> <p>The action of a town council upon a petition of citizens for repairs on a road can be shown in an action against the town as bearing upon the question whether the road was one over which the town had control and upon which it made repairs, the question of its being a public highway being in issue.</p> <p> Í3) Evidence. Leading Questions. </p> <p>Exception will not lie to a leading question, its admission being in the discretion of the court.</p> <p> Í4) Negligence. Last Clear Chance. </p> <p>¡Request to charge as to the “last clear chance” was properly refused, where the “last clear chance” plaintiff would have had to avoid the accident, would have been if he had known the hole was in the highway, to use due care in keeping out of it. If he did not do this he would have been guilty of contributory negligence, and upon that question the jury had been correctly ■charged.</p>

<p>(1) Bills of Exceptions. Accident or Mistake.</p> <p>A transcript of testimony which had been sent by express by the stenographer did not reach defendant until the time fixed for filing same had expired. Defendant did not apply for an extension of time.</p> <p>Held, that it was not a case of accident or mistake, and defendant’s petition for leave to file his bill of exceptions would be denied.</p>

<p>(1) Shipping. Negligence. Assumed Risks.</p> <p>Plaintiff was a foreigner ignorant of the English language. He had no knowledge of machinery and had never been on a power boat until the day preceding the injury, and then worked as an oyster shoveler. On the following day he was ordered into the cabin by the captain and commanded to bail out the water under the cabin floor. A section of the floor beneath which the shaft ran, so arranged that it could be lifted, was taken up. The water in the bilge was above the level of the shaft which was then revolving; the cabin was dark and the floor wet and slippery. The plaintiff after the orders were communicated to him by signs, was bailing the water by means of a small pail into a larger pail, kneeling on his left knee with his right leg drawn up behind him to steady him, and his right foot slipping, his leg was caught and drawn down by the shaft and injured. Plaintiff claimed that he was unable to see the shaft because of the water; that he did not know it was there and was not warned as to the dangers of the work. It also appeared that the “bilge pump” had been out of order at times during two years and was so at the time in question. It also appeared that the water could have been safely pumped out by use of a hand pump, but it did not appear that such a pump was on the boat. It further appeared that the captain filed a “wreck report” of the accident, stating that warning had been given to use great care in working around the shaft in taking out bilge water, while in motion.</p> <p>Held, that upon such facts there was no evidence that the risk was obvious to and assumed by the plaintiff.</p> <p>Held, further, that in view of testimony of plaintiff that he had not been warned, the introduction of the “wreck report” by him, containing a general statement by the captain, could not be taken as an admission by plaintiff that he had been warned.</p> <p> (2) Shipping. Unseaworthiness. Negligence. Vice Principal. </p> <p>Held, further, that the vessel leaking to the extent shown in the testimony, was unseaworthy; that the owner and the master were grossly negligent in permitting this condition to continue and in resorting to a dangerous makeshift in removing the water and that the master was grossly negligent in ordering plaintiff' without proper warning or safeguard into a position of danger, and in so doing he was the representative of the owner who became hable for the injury.</p> <p> (8) Shipping. Negligence. Vice Principal. </p> <p>In cases of injury to a sailor arising from the unseaworthiness of the vessel, through the negligence of the captain, such negligence is that of a vice-principal representing the owner.</p> <p>(4-) Evidence.</p> <p>■“Q. Did you see any danger there before the accident?” Held, properly excluded as not being specific.</p> <p>(5) Evidence. Interpreter.</p> <p>It is the function of an interpreter to interpret correctly all questions and the answers thereto, but the power to determine the responsiveness of answers belongs to the court, and instruction to an interpreter not to give answers which were not responsive to the questions, constituted prejudicial error.</p> <p>(6) Trial. Views.</p> <p>"Where a view had been taken and plaintiff could have gone with the jury had he seen fit, the court properly exercised its discretion in refusing to interrupt the trial for the purpose of taking a second view.</p>

<p> (1) Probate Appeals. Sale of Real Estate. </p> <p>Where a probate court more than a year after the entry of an order granting' leave to sell real estate, entered a decree affirming the original order, an appeal properly lies to the superior court from such decree.</p> <p> {2) Sale of Real Estate by Executor. Limitations. Affirming Decree. </p> <p>General Laws, cap. 308, § 28, provides that every license granted by a probate court to sell real estate shall continue in force for one year from the date of the decree.</p> <p>General Laws, cap. 311, § 3, provides that where an appellant fails to enter his appeal within the time allowed by law, the probate court may affirm the decree appealed from.</p> <p>December 18,1908, a probate court entered an order for the sale of real estate. An appeal was taken, but not perfected and February 10, 1911, the court affirmed such order.</p> <p>Held, that while the probate court could during the year that the order to sell real estate continued in force, affirm such order where an appellant failed to enter his appeal, it had no power to affirm such a decree which had ceased to be in force by the limitation of the statute, and the filing of an appeal could not interrupt the running of the period of limitation of the force of the decree.</p> <p> (8) Probate Appeal. Sale of Real Estate. </p> <p>Statutory provisions for the sale of real estate by executors must be strictly followed in order to give validity to the sale.</p>

<p>(!) Bills of Exceptions.</p> <p>Under the provisions of cap. 298, § 17, Gen. Laws, 1909, in case a party files a motion for a new trial, his notice of intention to prosecute a bill of exceptions shall not be filed until after notice of decision upon said motion for a new trial.</p> <p>In seeking a review in the Supreme Court the intention of the statute is that proceedings for bringing the exceptions before the court shall.be commenced after the final decision of the Superior Court in the case, in order that all exceptions may be embodied in one bill, to be presented at one time.</p> <p> {%) Bills of Exceptions. New Trial. </p> <p>Where a plaintiff excepted to a ruling directing a verdict for defendant on one count and after a verdict in his favor on a second count, filed a petition in the Superior Court for a new trial on the question of damages, and also a notice of his intention to prosecute a bill of exceptions upon his exception to the ruling directing a verdict, but failed to file his bill of exceptions and after his motion for new trial had been denied, filed a bill of exceptions stating among others, the exception to the ruling on the first count, the exception will be considered, since the notice of intention to prosecute a bill of exceptions first filed, was premature and ineffectual.</p> <p> (8) t Bills of Exceptions. Waiver. New Trial. </p> <p>Upon the first count of a declaration, the court granted the motion of defendant for direction of a verdict and plaintiff excepted. After verdict in favor of the plaintiff on second count, he moved for a new trial, which motion was denied.</p> <p>Held, that the exception to the ruling of the court on the first count was not waived by the petition for new trial, with reference to the verdict on the second count.</p> <p>Barstow v. Turner, 29 R. I. 100, distinguished.</p>

<p> (1) Contracts. Promise for Benefit of Third Party. Assent. Bankruptcy. </p> <p>While the right of a third person to enforce a promise made by one person to another for the benefit of said third person, although the consideration does not move from such third person and although he was not cognizant of the promise when it was made, is well recognized, yet he acquires no rights under the promise until he accedes to it, and before such accession on his part, his right may be lost either by revocation or release between the parties to the agreement or by the intervention of the rights of others.</p> <p>Such assent to be effective must be given before the bankruptcy of the promissor.</p> <p>In an action to recover funds alleged to have been retained by defendant and applied to a firm obligation, evidence considered and:—</p> <p>Held, to establish an original co-partnership indebtedness and not an indebtedness assumed by the firm.</p>

<p>(1) Municipal Corporations. Marking Street Lines.</p> <p>Pub. Laws, cap. 1406, provides that the city engineer of the city of Providence shall within five days after receiving notice of an intention to build within ten feet of any street, proceed to mark out and define the street line adjacent to the proposed structure if such line can be accurately determined, and shall also mark the grade of the street if such, grade has been duly established or defined and shall make such return of said marking of line and grade to the inspector of buildings:—</p> <p>Held, that the act referred to the determination of a street line that had been already established.</p> <p>Held, further, that the erroneous location of such line by the city engineer was not binding either upon the abutting owner or the public.</p>

<p>Action for damages caused by dog.</p>

<p> {!) Guardian and Ward. Unfaithful Administration. </p> <p>General Laws, 1909, cap. 320, § 17, provides for the entry of a decree of unfaithful administration in the cases of executors and administrators, only, and confers no authority to enter such a decree against a guardian. The remedy of a creditor against a guardian failing to apply the estate of his ward to the payment of debts is under cap. 321, § 25.</p>

<p>(I) Taxation. Compensation of Collector of Taxes.</p> <p>Plaintiff was elected collector of taxes by a town council, and at the same meeting after said election, the council fixed the salary at $600. Thereafter a financial town meeting appropriated $600 for the salary of collector of taxes and also voted to fix the salary at that sum. At a session of the town council held after this meeting the plaintiff declined “to accept the sum specified by the vote of the town meeting and refuses to agree with the town upon the sum so specified in said vote.” The council took no action, the plaintiff qualified and executed the duties of the office, and brought action to recover under Gen. Laws, 1909, cap. 62, § 4, five per cent, of the amount so collected.</p> <p>Held, that although the vote fixing compensation was passed by the council after his election, it was at the same meeting and was clearly intended as a condition of the election and being known by him before he qualified and gave bond, he must be held to have accepted the condition and agreed with the town.</p> <p>Held, further, that the ease was not affected by the notification given the council by plaintiff, since the council did not change its position or modify the condition attached to the election.</p>

Trespass on the case for negligence. Rescript. Defendant’s exception to the refusal of the Superior Court to direct a verdict for the defendant sustained. The plaintiff may therefore show cause on March 15, 1912, why the case should not be remitted to the Superior Court, with direction to enter judgment for the defendant.

<p> (1) Slander. Damages. </p> <p>In an action for slander based on charges affecting the chastity of plaintiff, a verdict for $200 will be sustained.</p> <p> (8) Evidence. Procedure. Trial. </p> <p>Where before the jury was impanelled certain testimony was taken, relative to the trial of the case, such facts not being in evidence, a witness may not be interrogated about them.</p> <p> (8) New Trial. Exceptions. </p> <p>Conduct of the trial judge which might have been the basis for a motion for continuance, which having been made and denied would have furnished ground for an exception, cannot be alleged as ground for a new trial in the superior court, for, if the trial was not fair and impartial in that respect it was on account of error occuring at the trial which is expressly excluded as ground for a motion for new trial under Gen. Laws, 1909, cap. 298, § 12.</p> <p> (4) Jurors. New Trial. </p> <p>A verdict for plaintiff will not be disturbed, because of a remark of a juror made after verdict was rendered, that it was a good thing plaintiff did not sue for a larger sum as the jury would have given it, since it may be assumed in the absence of proof to the contrary, that his condition of mind proceeded from proof and not from prejudice.</p>

<p>Bill in Equity.</p>

<p> (1) Master and Servant. Act Not Within Duty of Servant. </p> <p>Where it was the duty of the servant to drive to the post-office for the mail, then to the express office and then back to the master’s house and after leaving the post-office, he undertook to oblige a third person by carrying a note to that person’s house, which was not on the road between defendant’s house and the post-office, but on another road, which did not lead to the express office, and while so engaged, the accident occurred, the servant was on an independent journey and the master was not liable.</p>

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

<p>(1) Guardian and Ward. Contracts.</p> <p>The contracts of a person under guardianship (except for necessaries) are void and no suit can be maintained thereon, and the same rule applies to a person under guardianship by reason of habitual drunkenness, as for any other cause.</p> <p>(0) Guardian and Ward. Contracts. Personal Services.</p> <p>Where by statute the contracts of a person under guardianship are declared void, a contract made by a ward for his personal services is within the prohibition of the statute.</p> <p> (3) Guardian and Ward. Quasi Contracts. </p> <p>While a ward is legally incapable of making a valid express contract for labor and services to be performed by him, he may yet recover in a suit brought in his name by his guardian for valuable services actually performed by him, although without the consent or knowledge of his guardian, the law . implying a promise to pay on the part of the other party, reasonable compensation for such services.</p> <p>In such action recovery would not be limited to the amount attempted to be fixed by the void express contract, but would be based on a quantum meruit.</p> <p> {4) Guardian and Ward. Quasi Contracts. </p> <p>Where, after the decease of his employer, a wal'd filed in a probate court, a claim for his services at the rate of $8 a month, and after the ward had brought suit in his own name, his guardian intervened and took up the prosecution of the suit, ratifying the acts of the ward, by this action the guardian ratified the claim presented by the ward, and is limited as to the amount of recovery for services actually rendered, on a quantum meruit, to the claim as filed.</p> <p>(5) Procedure. Clerical Error. Amendment.</p> <p>The correction of a clerical error in a bill of particulars during a trial, is within the discretion of the court.</p> <p> (6) Evidence. </p> <p>In an action for compensation for services, evidence of the arrest of plaintiff for drunkenness, is admissible, as bearing on the amount, quality and value of the services.</p> <p>(7) General Exceptions.</p> <p>A general exception to a charge will not be considered.</p>

<p>(1) Law of the Road. Motor Vehicles'. Passing Electric Car.</p> <p>The driver of á motor vehicle is not required either by the law of the road (Gen. Laws, 1909, cap. 87, § 1), or the law prescribing the duty of operators of motor vehicles (Gen. Laws, 1909, cap. 86, § 12), in approaching from the rear to pass to the left of an electric car from which a passenger has alighted, for if the law of the road has any application, it must be with reference to the car or the people thereon, and where plaintiff who had left the car and was crossing to the sidewalk was injured by defendant who passed the car on the right, there being no interference or collision with the car, plaintiff was not injured in consequence of the neglect of any duty which defendant owed the car or its occupants.</p> <p> ($) Law of the Road. Due Care. Motor Vehicles. </p> <p>While a driver of a motor vehicle is bound to take notice that a street car has stopped to allow passengers to alight, and to so conduct his vehicle as not to run down persons wh,o have so alighted, that is not a duty imposed by the statutes prescribing the law of the road, but is the duty of using due care.</p> <p>(S) Same.</p> <p>The driver of a motor vehicle in passing an electric car irrespective of which side he passes, is held to one degree of care, that of due care, proportionate to the conditions existing at that time and place.</p> <p>(4) Motor Vehicles. Negligence. Passing Electric Car. Duty to Passenger Alighting.</p> <p>Although a person alighting from an electric car, sees an automobile approaching from the rear, unless it is so close that it could not be stopped by the exercise of ordinary care, he has the right to assume that its driver will not run it over him.</p>

<p> {!) Actions. Money Had and Received. </p> <p>To support an action for money had and received there must be some privity between the parties in relation to the money sought to be recovered. This privity may be express or implied, and if one has the money of another, which in good conscience he has no right to keep, the law will imply a promise in such case, but where there are two claimants to the same fund, and one of them is recognized as being entitled to it by the person from whom it is due and is paid, the other cannot sue him to recover the money, for having received the money under a claim of right in himself, the law will not imply a promise by him to hold the money for the use of the other claimant.</p> <p> (8) Actions. Burial of Soldier. </p> <p>Where a town has paid under the provisions of Gen. Laws, 1909, cap. 105, §§ 1, 2, and 4 (of the burial of honorably discharged soldiers), the sum allowed for the expense of a headstone, to defendant, the person designated by the town council to attend to the interment of a soldier under said chapter, the court cannot determine, in an action for money had and received, brought against defendant by a third party who claimed the right to provide the headstone, (to which action the town is not a party), whether or not the town has paid the money to a person not entitled to the same.</p>

<p>(ji) Master and Servant. Scope of Employment. Automobiles.</p> <p>A servant of defendant had been ordered to take a car from one garage of defendant to its other garage, to there wash the car and put it up for the night. After he had driven the car to the garage as directed, without permission or authority from deféndant and against its express general orders, he took the car to carry another employee to his home, and after driving to a restaurant for his supper was returning to the garage when the accident occurred:&emdash;</p> <p>Held, that the servant was not acting within the scope of his employment, and defendant was not liable for injuries caused by his servant’s negligence while acting for himself.</p> <p>(2) Master and Servant. Machine dangerous per se.</p> <p>Held, further, that an automobile is not an instrumentality dangerous per se, thereby rendering a master liable for injuries resulting from the negligence of the servant, while riding for his own pleasure, and not upon the master’s business.</p> <p> (S) Master and Servant. Scope of employment. </p> <p>Held, further, that Gen. Laws, 1909, cap. 86, relating to motor vehicles, has. not changed the common law rule affecting the liability of a master for acts, of a servant outside the scope of his employment.</p> <p> (4) Master and Servant. Evidence. Witnesess. </p> <p>Where a plaintiff calls the servant of a defendant for the purpose of showing, his employment by defendant at the time of the accident, so as to show defendant’s liability as based on his servant’s negligence, the defendant may properly examine the servant fully, as to the nature of the acts done by him at that time and prior thereto, to ascertain the truth of the situation as to the nature of the servant’s acts in relation to the use of the instrumentality causing the accident.</p>

<p> {!) Constitutional Law. Provisions Limited to Federal Government. </p> <p>Cons. U. S. Art. V. of amendments has no reference to State governments, but is restricted in its operation to the government of the United States.</p> <p> {%) Constitutional Law. Rights of Accused. </p> <p>Cons. R. I. Art, I, Sec. 10: “. . . nor shall he be deprived of life, liberty or property, unless by the judgment of his peers or the law of the land,” relates to certain rights of the accused in criminal prosecutions.</p> <p>(S) Constitutional Law. Presumption of Constitutionality.</p> <p>All statutes being presumed to be constitutional, the burden of proving their unconstitutionality beyond a reasonable doubt is upon the one raising the question.</p> <p> (4) Constitutional Law. Eminent Domain. Private Property Secured. Metropolitan Park Act. </p> <p>Pub. Laws, cap. 569, approved April 27,1910: “An Act to condemn certain land by the State for Metropolitan Park Purposes,” provides that in case of the agreement of a party with the commission for the price or value of the land taken, the same shall be paid to him forthwith, upon the order of said commission, by the general treasurer, out of any funds available therefor, and in case of inability to so agree provision is made for the assessment of damages by a jury, with all rights of appeal, and upon the recovery of final judgment against said commission, execution shall be issued and shall be forthwith paid by the general treasurer out of any funds available therefor:—</p> <p>Held, that the statute was not obnoxious to Cons. R. I. Art. I, Sec. 16: “private property shall not be taken for public use without just compensation,” since its language constituted not only a direction to the State treasurer to forthwith pay the amounts ascertained to be due, out of any money in the treasury not otherwise appropriated, but amounted to an appropriation of such money for that purpose inasmuch as it subjected the same to that use.</p>

<p> (1) Taxation. Notice. </p> <p>A notice given by assessors of taxes, under the statute, stating that June 19, at 5 P. M., had been selected for the assessment of a tax, and that they would be in session from June 20th to June 30th to receive accounts of ratable estates and that all real and personal estate would be taxed to the persons owning or holding the same at 5 P. M., June 19th, is sufficiently definite.</p> <p> (%) Taxation. Distinguishing Those Who Bender Accounts. </p> <p>Gen. Laws, 1909, cap. 58, § 8, requires assessors of taxes in their assessment list to distinguish those who give an account from those who do not.</p> <p>Held, on petition for certiorari attacking the regularity of an assessment, that as it did not appear by the petition that any person rendered an account, the objection that the assessors had not so distinguished as required by statute, was without merit.</p> <p> (3) Taxation. Description of Property. Assessment. </p> <p>On a petition for certiorari at the relation of a tax payer against tax assessors, board of canvassers and city treasurer, objecting to placing certain names assessed for personal property, on the voting list, on account of illegal assessment, objections that the property was not described or specified so that it could be levied upon and sold in default of payment of the tax, will not be considered, the proceeding not being brought by a person against whom a tax had been assessed, for the purpose of objecting to the legality of such assessment, and the collector of taxes making no complaint that he could not . properly perform his duties.</p> <p> (4) Description of Personal Property. Taxation. </p> <p>Objection to a tax assessment that the personal property was not described, located or named, and hence could not be levied upon, while the real estate was described and could be located and levied upon, therefore discriminating between the classes of property, is without merit, since the injury, if there be any, is due to the inherent difference between the classes of property and cannot be attributed to the assessors.</p> <p>The taxing of personal property does not operate to immobilize it.</p> <p>(5) Taxation. Assessors of Taxes. Presumption in Favor of Proper Performance of Acts.</p> <p>Assessors of taxes are entitled to the presumption that their official acts were properly performed until the contrary is proved; hence the court cannot infer because a large number of persons have been assessed for the same particular sum, that the assessors used no lawful method to ascertain what property the persons owned, but merely assessed them to enable them to-vote. The presumption of innocence is sufficient in the premises.</p>

<p>(1) Negligence. Street Railways.</p> <p>Plaintiff was driving a cart loaded with gravel, and met an automobile on the part of the road between the track and the sidewalk. The automobile turned to the right and ran upon the sidewalk, but could not continue until it had passed the cart because of a pole in the sidewalk, and stopped five or six feet from the pole. Plaintiff drove to the right so far that his off wheels rubbed against the rail and his nigh wheels just cleared the automobile. While in this position, unable to turn from the track because of the automobile, defendant’s car approached from behind, and the running board struck his forward wheel, throwing plaintiff off and injuring him.</p> <p>Held, a verdict for plaintiff on the above facts would be sustained.</p> <p> (2) Evidence. </p> <p>Evidence is properly admissible for the purpose of explaining a statement which otherwise would be unintelligible.</p> <p> (S) Evidence. Striking Out Answer. </p> <p>Where a question is admissible, if the objection is to the answer, it must be taken advantage of by motion to strike out such answer and not under an exception to the question.</p> <p> (4) Evidence. Res Gestae. </p> <p>Evidence that the motorman some six minutes after the accident, when the ear was at a standstill and plaintiff had just been picked up, in reply to a statement by a by-stander “the railroad company is to blame for this” said “there has no one denied it, has there” is admissible as part of the res gestae.</p> <p> (5) Evidence. Opinion. </p> <p>An answer to a question as to whether 'there was room for two teams to meet and pass “No, not without going on the sidewalk,”</p> <p>Held, properly admitted since without knowing the exact measurement, witness could answer as he did, if he had knowledge of the fact as to the possibility of two teams passing each other at the place in question.</p> <p> (6) Evidence. Bes Gestae. </p> <p>Evidence that the motorman some three or four minutes after an accident stated that he thought he could pass without hitting plaintiff is admissible as part of the res gestae.</p> <p>(7) Evidence. Depositions. Exceptions.</p> <p>Objection to a question asked of a witness upon taking depositions must be made before the magistrate, and not upon the reading of the deposition at the trial.</p> <p> (8) Evidence. Opinion. </p> <p>Question to a witness whether there was room at a stated place where plaintiff met an automobile for an automobile and a team to pass in the travelled part of the road, was properly admitted.</p> <p>(9) Evidence. Res Gestae.</p> <p>Evidence that the motorman after an accident stated that he was sure he was</p> <p>' going to miss him (plaintiff) that was why he did not stop, was properly admitted as part of the res gestae.</p> <p> (10) Evidence. Damages. </p> <p>In an action against a railway company for negligence arising out of a collision, evidence of plaintiff as to his wages and the work performed in his regular occupation, was admissible where the declaration alleged that he was incapacitated from working and earning the wages which but for the injuries he would have earned.</p> <p> (11) Evidence. </p> <p>In an action against a railway company arising out of a collision question to witness whether there was anything he could have done to have gotten out of the way faster than he did, was properly admitted.</p> <p> (18) Negligence. </p> <p>In an action against a railway company arising out of a collision charge of the court that if the motorman saw the plaintiff cramped in a narrow place in the highway and forced near the track, and that by continuing with the motion of his car he would be likely to strike the wagon of plaintiff, he had no right to go in and speculate upon the chances of possibly getting through, was proper.</p> <p> '{IS) Negligence. Last Clear Chance. </p> <p>•Charge of the court that if plaintiff was guilty of negligence in driving too close to the track, still if thereafter he did all he reasonably could to avert the accident, it was the duty of the motorman if he saw and appreciated the danger in which plaintiff was placed in time to avert the accident, to do so and neglect on his part so to do became the proximate cause of the injury, was proper.</p> <p> ■{14-) Damages. </p> <p>In an action for negligence, evidence was submitted as to the labor of plaintiff and the wages he received as a teamster and as to his labor in his stable, but no evidence as to his profits or loss of profits in his business of teaming or of a stable keeper.</p> <p>Held, the charge of the court that if the jury found the plaintiff had lost anything from being unable to perform his usual vocation, “which is that of a stable keeper as he told you, and also as a teamer” it would constitute an element of damage, was given on the evidence and could not apply to or ■cause the jury to consider possible losses in the teaming or stable business.</p> <p> '{15) New Trial. Remarks of Counsel. </p> <p>Am exception to the denial by the trial court of a motion for new trial based on improper argument of counsel, will not be sustained, where immediately thereafter the court properly instructed the jury to disregard the remark, and no exception was taken to such instruction.</p> <p> r{16) New Trial. Newly Discovered Evidence. </p> <p>A party is not entitled to a new trial for newly discovered evidence, where there was opportunity to have discovered the evidence before the trial and its effect in reduction of damages would be slight.</p> <p> '{17) Damages. </p> <p>In an action for negligence, a verdict of $15,000 held not excessive where the injuries were permanent incapacitating plaintiff for labor during life.</p>