34 R.I.

Volume 34 — Rhode Island Reports

60 opinions

34 R.I. 1Lace v. Smith (1912)
 (1) Constitutional Law. Bankrupt and Insolvent Laws. Under the provisions of Cons. U. S., Art. I, § 8, “The congress shall have power: — to establish uniform laws on the subject of bankruptcies, throughout the United States,” this power when exercised and to the extent that it is exercised, is exclusive. However it is not the mere existence of this power, but its exercise, which is incompatible with the exercise of the same power by the states. It is not the right to establish these uniform laws, but their actual establishment which is inconsistent with the partial acts of the states. (2) Conflict of Laws. Bankrupt and Insolvent Laws. A state has authority to enact bankrupt or insolvent laws that do not conflict with Federal bankrupt laws then in force. (S) Conflict of Laws. Bankrupt and Insolvent Laws. Gen. Laws, 1909, cap. 339 “Of proceedings in insolvency,” is not in conflict with the national bankrupt act of 1898, for though the bankrupt act suspends the operation of any state insolvent law where there is any conflict between the two, the state law remains in full force in so far as there is no conflict, and as the bankrupt act expressly exempts from its involuntary proceedings, wage earners and farmers, the power of the state exists over such cases. (4) Constitutional Law. Bankrupt and Insolvent Laws. Gen. Laws, 1909, cap. 339 “Of proceedings in insolvency,” is not in conflict with U. S. Cons. Art. I, § 10, and R. I. Cons. Art. I, § 12, in that it impairs the obligations of contracts or is retroactive, for as to any contract made after its passage, the act entered into such contract as part of the existing law, and as to an ordinary open account between attorney and client for services which commenced prior to the passage of the act the obligation of the contract remains unimpaired, although its value may have been impaired by the neglect ot the attorney to use due diligence in the collection of his charges. (5) Same. Gen. Laws, 1909, cap. 339 “Of proceedings in insolvency,” is not in conflict with U. S. Cons. Art. XIV of amendments, or R. I. Cons. Art. I, § 10, as depriving a person of property without jury trial and due process of law, since in a bill in equity brought by an assignee in involuntary insolvency, to recover property alleged to have been conveyed in fraud of creditors, a jury trial may be had upon issues of fact, while such a proceeding is one well recognized as appropriate for that purpose in the law oí the land.
34 R.I. 29White v. Almy (1912)
(1) Probate Law. Filing Claims Against Estate. Actions. Quantum Meruit. Gen. Laws, 1909, cap. 314, § 3, providing for the filing of claims against decedents in the probate court, does not require the setting forth of the evidence to support the claim, but it is sufficient to state such sum as claimant expects to recover. The fact that a claim filed in a probate court against the estate of a decedent, states a definite sum as due, does not prevent recovery upon a quantum meruit. (2) Contracts. Domestic Relations. Board. In an action brought by a son-in-law to recover for the board of his wife’s mother, deceased, the doctrine established in this state as to contracts for • services between members of a family, considered; and, held, there being evidence of circumstances and statements from which the jury might infer that there was a reasonable and proper expectation on the part of both parties, that compensation was to be made, the case was properly submitted to the jury upon that point as well as upon the reasonableness of the amount claimed for board under all the circumstances. . (8) Evidence. In an action to recover for board of defendant’s intestate, defendant offered evidence as to money received by plaintiff from intestate. This was not offered to show payments on account but to show the relationship of the parties and the matter was also the subject of another suit between the parties to recover the money. Held, properly excluded. (4) Contracts. Evidence. Domestic Relations. In an action between members of a family to recover for board, request to charge that the contract to pay board, not to be enforced until after death, when claimed to have been made by an aged and infirm person must be established by the strongest evidence, was properly refused, and charge that it might be established by a preponderance of the evidence was applicable to the case. (5) Contracts. Evidence. Domestic Relations. Charge approved, that the statement “you will get your pay when I am gone” of itself is not enough to overcome the presumption that services rendered by a son-in-law to his mother-in-law were rendered through affection, but might be taken into consideration with the evidence, by the jury, in determining whether plaintiff had any proper expectation of compensation. (6) Contracts. Evidence. Domestic Relations. Where there was evidence if believed by the jury, that intestate intended and promised plaintiff that he should be paid after her death for services rendered it was unnecessary for plaintiff to notify intestate of his intention to charge her for such services, and request to so charge was properly refused.
34 R.I. 51State v. De Fonti, Cisco (1912)
Indictment. Heard on questions of law certified under Gen. Laws, cap. 298, § 5. Rescript. The first and second questions certified to us in each of the above entitled cases are answered in the affirmative and the third and fourth questions in each case so certified are answered in the negative and the papers in the cases with certificates of our decision thereon will be sent back to the Superior Court for Washington County for further proceedings.
34 R.I. 57Kelley v. Blanchard (1912)
'(1) Champerty. Contracts. ’Where an agreement is champertous, the illegality extends to all acts clone in pursuance thereof. 'Where an agreement is champertous, a deed between the parties in pursuance of the agreement, whereon a bill in equity to set aside a foreclosure is based, is tainted with the same illegality and affords no basis for relief. •'Champerty is an offence against the law and avoids every contract into which it enters. -After a foreclosure, the mortgagor deeded his interest to complainant, under an agreement by which complainant was to bring proceedings at his expense to set aside the foreclosure sale, and if successful in this, to sell the property and divide the profits. .Held, that the agreement was champertous.
34 R.I. 61Sullivan v. John R. White, Inc. (1912)
Trespass on the case. Heard on motion of plaintiff to .assign defendant’s bill of exceptions and denied.
34 R.I. 65Flint Motor Car Co. v. Everson (1912)
(I) Evidence. Book Account. Secondary Evidence. In an action on book account, the bookkeeper of plaintiff was properly permitted to testify from a book as to the alleged account, where it appeared that the original slips had been accidentally destroyed by fire, and that the book contained correct copies thereof, made by her, for irrespective of the validity of the book as one of original entry, it was competent secondary evidence of the contents of the slips. (%) Evidence. Q. “How much do you consider is your loss in being deprived of the use of your automobile?” Held, properly excluded as calling for an opinion and not for facts.
34 R.I. 71Potter v. Harvey (1912)
(1) Executors and Administrators. Splitting Claims. Disallowance. Appellee,- who had a continuous running account for services rendered by him as a physician to his sister, within the period of six months from the first publication of the notice of the appointment of her administrator, filed a claim against her estate, which was disallowed and suit was brought thereon and subsequently settled. Within the period of one year from said notice, appellee filed a second claim covering items for services, which, he alleged he forgot to include in the first claim, but recalling the omitted items and being advised that the claim was valid, he filed it at that time.' It was not disallowed. : Held, that it was not a case of one who through accident or mistake, having severed his claim was attempting to reunite it, but of one, who, having discovered the mistake, ratified the severance by filing a separate claim, and insisted upon the validity of both claims. Held, further, that while the statute C. P. A., § 883 (now Gen. Laws, 1909, cap. 314, § 3), gives a preference to claims filed within six months over those subsequently filed, no claimant has the right to sever claims otherwise indivisible for the purpose of making a part preferred over the other. ■ Held, further, that as claimant did not have two accounts against the estate he was not entitled to file two claims and there was no necessity for the dis-allowance of the second claim, and the administrator was* not guilty of unfaithful administration for not paying the same. (8) Severing Cause of Action. A demand indivisible in its nature, cannot be split so as to authorize several actions for the same claim, and if a recovery is had of a part of such a demand it will be regarded as an election to accept that part for the whole. (8) Severing Cause of Action. In the absence of special circumstances, an open or continuous running account between the same parties, constitutes a single and entire demand which is not susceptible of division, the aggregate of all the items being regarded as the amount due and it cannot be severed for the purpose of bringing different suits on its different parts.
34 R.I. 84Greenough v. Board of Canvassers (1912)
(1) Taxation. Assessment. Notice. Defects. A resolution of a city council, passed May 1, ordered the tax assessors to assess a tax on or before August 31. The assessors fixed June 6, at 5 o’clock P. M., as the time for the assessment of such tax and gave notice to bring in accounts of ratable estates owned on the 6th day of June, at 5 o’clock P. M., and that for i¡he purpose of receiving such accounts the board would be in session daily from the 6th to the 10th days of June, from 9.30 A. M., to 12 o’clock noon. Held, that the assessors might select any day not later than August 31, for the assessment of the tax, provided it did not prevent the giving of the statutory three weeks notice under Gen. Laws, cap. 58, § 6. (2) Taxation. Notice. Defects. Held, further, that the notice was faulty in that no person could know in the-forenoon or at noon on June 6, what property he would own at 5 P. M., and so any statements received on that day between 9.30 and 12 noon were valueless. Held, further, that as it did not appear that any statements were then received or that any person was misled and there was ample time provided on the other days, for the reception of accounts, in a proceeding brought by the attorney-general for the purpose of vacating the assessment, so-as to prevent the placing of certain names assessed for personal property upon the voting-lists, this defect would not avail the petitioner. (3) Taxation. Discrimination. Mandamus. Discrimination by a board of tax assessors in favor of certain tax payers, is rio ground for relief in a proceeding brought by the attorney-general for the purpose of vacating the assessment so as to prevent the placing of certain names assessed for personal property upon the voting lists, the persons affected not being parties to the proceeding. (4) Taxation. Mandamus. The proper remedy against assessors who neglect or refuse to assess taxable-persons or property is by mandamus to compel them to do so, but the petition for such writ must be brought against the assessors before the assessment roll has passed from their possession. (5) Taxation. Assessment. The action of a board of tax assessors in assessing 120 persons for personal property in the sum of $200 each, by a vote of two assessors to one, is not the action of a majority, but that of the full board, the vote of the majority being decisive. (6) Taxation. Assessment. Review. •Gen. Laws, cap. 58, § 3, provides that “all property liable to taxation shall be assessed at its full and fair cash value.” Cap. 58, § 4, provides that “the assessors shall assess and apportion any tax on the inhabitants of the town and the ratable property therein, at the time ordered by the town.” ' Held, that it was the duty of the assessors to assess every person and all property liable to taxation and they were not excused from this duty in case no account was rendered, and therefore, the assessment roll still being in their possession, but after the time limited for filing accounts had expired, where the assessors accepted a list of names and assessed the persons each for the sum of $200, their action is not subject to review in a proceeding brought by the attorney-general for the purpose of vacating the assessment, so as to prevent the placing of certain names assessed for personal property upon the voting-lists.
34 R.I. 103Narragansett Real Estate Co. v. MacKenzie (1912)
Trespass and Ejectment. Heard on exceptions of both parties and exceptions of defendant sustained and exceptions of plaintiff overruled.
34 R.I. 126Musk v. Hall (1912)
Assumpsit for money loaned. Heard on exceptions of defendants and overruled.
34 R.I. 136Tillinghast v. Johnson (1912)
 (1) Garnishment. Safe Deposit Companies. Sealed Package. A safe deposit company which has received for storage articles in a sealed parcel owned by the defendant in an action in assumpsit, and has such parcel in its possession at the time of the service upon it of a writ of garnishment, the contents not being of a nature exempt from attachment, is chargeable as garnishee whether or not any of its officers or employees were informed as to the contents of said package. If under such circumstances the garnishee has refused or neglected to render the account required by Gen. Laws, 1909, cap. 301, § 10, it should be charged under cap. 301, § 20, because of such refusal or neglect. (¿®) Certification of Question of Law. General Laws, 1909, cap. 298, § 5, intends that only questions of law which have in fact arisen in some proceeding pending in a lower court, prior to the trial of such proceeding on its merits, shall be certified for determination. It is not enough that such question may árise later, but it must be one actually presented and one the determination of which is necessarily involved in the ruling of the court upon the particular phase of the case then before it. If it must be based upon a particular state of facts found to exist, such underlying facts must be determined by the court, and such question should not be certified except in the case where the court after careful consideration, aided by counsel, is unable to reach a satisfactory conclusion and the question still appears a doubtful one. (S) Certification of Question of Law. Garnishment. Where a question of law certified for determination sets out that the contents of a sealed parcel “were not exempt by law from attachment,” the court must have found what such contents were, in order to have determined that fact, and where it appeared that the garnishee was ignorant as to the contents the court must have determined such fact upon other evidence than the return of the garnishee, and there being no transcript of testimony the appellate court must presume that the court below was justified in its finding, from testimony given before it in some hearing to determine whether the garnishee was properly chargeable, otherwise the fact should not have been incorporated in the question. (4) Garnishment. Examination of Garnishee. The trial court, under present statutory provisions has as ample jurisdiction in an examination as to the liability of a garnishee, as in most other matters presented for its determination, and the construction of the provisions, now constituting Gen. Laws, 1909, cap. 301, § 18, given in Raymond v. Narragansett Tinware Co. 14 R. I. 310, has now no application. (5) Garnishment. Sealed Package. Safety Deposit Box. Where a garnishee appears and answers, disclosing that he has in his possession a sealed parcel or a locked safety deposit box belonging to defendant, the contents of which are unknown to him, the person signing the garnishee’s affidavit may be summoned by either party and examined and cross examined with reference to his answer and his testimony may be contradicted. Also, under cap. 301, § 18, the court may take such action as will enable it to determine the liability of the garnishee, and this would warrant it in directing the garnishee to break the seal of the parcel or open the deposit box and inspect the contents, that he may disclose the same to the court, and enable it to determine as to whether he is chargeable and to what extent. The garnishee may be reimbursed for his expenses under cap. 301, § 27. (6) Jurisdiction. Garnishment. Sealed Package. Procedure. Where the jurisdiction of the court does not depend upon whether or not there is property of the defendant in the hands of the garnishee, the order upon the garnishee to open a sealed parcel or a deposit box may be delayed until after verdict or decision against defendant, the only requirement being that it shall be before or at the time of the entry of final judgment in the case, and the court may continue the case after verdict or decision and suspend the entry of final judgment that it may have sufficient time to determine such liability. (7) Jurisdiction. Garnishment. Sealed Package. Procedure. Where the jurisdiction of the court does depend upon the attachment of property of defendant in the hands of a garnishee the court will continue the case under Gen. Laws, 1909, cap. 288, § 1, and if at the expiration of such continuance, the defendant has not answer ed, and the affidavit of the garnishee discloses no property except such as may be in a sealed or locked receptacle of defendant, the contents of which are unknown to him, the court upon motion of plaintiff or garnishee may for the double purpose of determining its own jurisdiction and the chargeability of garnishee inquire into the contents, and if necessary order garnishee to open the receptacle. (8) Garnishment. Safety Deposit Box. Where a defendant in an action of assumpsit, by contract with a safe deposit company, has the right to the exclusive use of a safe deposit box, owned by said company, and in the vault of said company, subject to the general control of the company, and the box except by force, can be opened only by the joint use of a master key retained by the company and of a key in possession of defendant and said box contains at time of garnishment property not exempt from attachment, the company is chargeable as garnishee, whether or not the employees of said company are informed as to the contents of said box, for the boxes are in possession of the garnishee in the sense that the words are used in the statute, and this being so, then the contents, though the owner has attempted to bar access to them are in the garnishee's possession also and subject to garnishment.
34 R.I. 155The First Baptist Society v. Wetherell (1912)
Trespass on the Case. Heard on exceptions of defendant, and overruled.
34 R.I. 160Chapman v. Pendleton (1912)
 (1) Evidence. Highways. Requests to Charge. In an action of trespass q. c. against a town in taking land for highway purposes, the evidence showed an understanding with plaintiff that the town was to reset the walls, and that the town used about one-third of the stones from the walls in a stone crusher and that material to build a good wall was not to be found in that locality. Held, that under such facts, request to charge that- if plaintiff was present and knew of the taking down of the walls and the construction of the road by the town and made no objection, the town had the right to believe that he was consenting thereto and he could not recover therefor in an action of trespass, was inappropriate, since there was no evidence that plaintiff acquiesced in the use of his walls in that manner. (2) Highways. Towns. Agency. In an action of trespass arising out of the taking of land for highway purposes, request to charge that if plaintiff permitted the work to proceed under a, promise that the town would make him whole for it, he could not recover in an action of trespass, but was confined to an action on the promise, was properly refused, since one dealing with a town or its agents is presumed to know the law relative to the scope of such agency and the powers of the town with reference to the marking out of highways, which are strictly defined by Gen. Laws, 1896, cap. 71, and nowhere include the power to enter into such an agreement. (8) Verdicts. Special Findings. In an action of trespass arising out of the taking of land for highway purposes, a general verdict of guilty is not inconsistent with a special finding that the construction of the highway was made with the consent of plaintiff, where such consent referred to an understanding between plaintiff and the town which was not carried out by the latter, and not to a consent to the construction after it was completed. (4) Highways. Trespass. Where proceedings under which a highway was attempted to be laid out, have been quashed for irregularities, no authority can be claimed thereunder. (5) Trespass. License. Burden of Proof. When a conditional license is relied upon in defence to an action of trespass, the burden of proving the license and performance of its conditions is upon the one alleging the same. (6) Trespass. License. Motive. To enter upon land with the intention to act in such a manner as to put it out of ones power to comply with a condition of the license granted, would constitute a trespass, and in the absence of any explanation, the jury may infer a motive from the conduct of the persons concerned.
34 R.I. 171Beebe v. Greene (1912)
(1) Contracts. Evidence. Damages. In an action for negligence, causing personal injury, testimony of plaintiff that he bought wood, which he could have sold at a profit, but on account of the injury, sold it at a loss, is not open to the objection that it is in proof of a lost contract, not alleged in the declaration, and is admissible. (%) Contracts. Evidence. Damages. In an action for negligence, causing personal injury, plaintiff was properly permitted to testify that he was deprived of the opportunity in his occupation as a teamster, of carrying between two towns merchandise for which there was a market in each town, such testimony not being open to the objection that it was speculative. (S) Evidence. Notice. Documents. Rule 19 of rules of practice of the superior court provides that no paper which is not set forth or substantially stated in the pleadings, shall be used as evidence unless notice shall be given the opposite party at least 3 days before the trial. Held, that, where a declaration in a personal injury case averred that plaintiff within 60 days after the accident presented to the town council a particular account in writing of his claim and how and when and where the same was incurred and that satisfaction had not been made within 40 days after the presentation of said claim, the record of the town council relative to such claim, was that of a paper substantially stated in the pleadings and was properly admitted when testified to by the town clerk. (4) Highways. Defects. Notice. Gen. Laws, cap. 46, § 16, provides that a person injured shall within 60 days give to the town notice of the time, place and cause of such injury, and if the town shall not make just satisfaction therefor, within the time prescribed, he shall commence his action within one year after the date of such injury. Held, that a paper wherein plaintiff presented his “claim” against the town, for injuries alleged to have been received on a highway, through a defect therein, which set out facts as to the time, place and cause of such injury, was a sufficient compliance with the provisions of the statute requiring “notice.” (5) Highways. Notice. Time. Where an accident on a highway occurred January 13th, notice served on the town council March 14th was served within 60 days after the accident, within the provisions of Gen. Laws, 1909, cap. 32, § 12, providnig that whenever time is to be reckoned from any day, such day shall not be included in such computation. '(6) Trial. New Trial. Evidence. Witnesses. "Where in an action for personal injury, the court inquired of a physicia n, a witness for defendant, if he knew certain ph ysicians, who the court stated had testified before him in another case, an d asked “would you be surprised that they said it was extremely rare, they had only known two or three cases,” the conduct of the court did not constitute prejudicial error where he properly instructed the jury that he was not a witness and that they were not to attach any importance to his remarks as testimony. Í7) Witnesses. Trial. The trial court may properly inquire of any witness expert or ordinary as to his meaning in the use of terms employed by him. '(S) Highways. Notice. Variance. In a personal injury case, the notice and declaration placed the defect at about 60 feet east of a gateway leading into a cemetery. Plaintiff testified that it was twenty paces “from the east gate post leading into the cemetery to the bar way down hill to the left.” A witness for defendant testified that the distance was 62 feet; another witness for defendant stated 67.10 feet; other witnesses for plaintiff about 60 feet. Held, no variance, the notice giving the information with substantial certainty. '(9) New Trial. Direction of Verdict. A ground for a motion to direct a verdict that “the hole was impossible to have been there” is too general to be considered. •(10) . Credibility oj Witnesses. It is for the jury and not for the court to pass upon the credit to be given to the witnesses, and the weight of their testimony, and the court should hesitate either in removing a case from or requiring a verdict by a jury, on the ground that something, the subject of human testimony, was absolutely impossible
34 R.I. 191In Re Metropolitan Park Loan (1912)
 ■(1) Constitutional Law. Metropolitan Park Commissioners. 'Gen. Laws, 1909, eap. 238, §§ 7 and 8 “of the Metropolitan Park Commissioners” providing for the appointment of commissioners to determine the proportion in which the cities and towns constituting the metropolitan park district, shall annually pay money into the state treasury to meet the re■quirements and expenses under said act as estimated by the general treasurer .and commissioners, and providing that the award of the commisioners after being accepted by the superior court, shall be final and binding on all parties .and that the sum so estimated shall be included in the assessment of the .annual state tax against the said towns and cities, is not obnoxious to Cons. JR. I. Art. I, § 2, “the burdens of the state ought to be fairly distributed among its citizens,” nor to Art. I, § 15, “the right of trial by jury shall remain inviolate,” nor to Art. I, § 16, “private property shall not be taken for public uses without just compensation,” nor to Art. IV, § 2, as a delegation of legislative power, nor to U. S. Cons. Art. XIV of amendments, “nor shall any state deprive any person of life, liberty or property, without due process of law.” •(£) Police Power. Constitutional Law. •Cap. 238, Gen. Laws, 1909, contemplates the improvement and conservation of the public health, and was passed in exercise of the police power of the state. It is therefore entitled to a liberal construction. (S) Constitutional Law. Burdens of the State. How the burdens of the State shall be fairly distributed, is a question of a purely legislative character, with which the judicial department has no concern, where the legislative discretion has been exercised honestly and in good faith and not for the purpose of personal oppression tinder color of law. (4) Constitutional Law. Metropolitan Park Loan. 'There is no constitutional objection to the authorization of the legislature by the people, to provide for State bonds not to exceed $300,000 for the acquirement and improvement of real estate for public reservations and parks in the metropolitan park district; the amount expended to be repaid to the state in accordance with the provisions of Gen. Laws, 1909, cap. 238. (5) Constitutional Law. Local Self-Government. ' The State constitution is silent as to local government and nowhere attempts to restrain the power of the legislature over the various cities and towns. (6) Metropolitan Park Loan. "The obligation of repayment of amounts expended under Gen. Laws, 1909, cap. 238, and under the resolution referred to in a request for an opinion of the court, falls only upon the cities and towns within the metropolitan park •district.
34 R.I. 203Perry v. Brown (1912)
 (1) Wills. Construction. In the construction of a will, the intent of testator must be gathered from the whole will, and to ascertain the intention the court will consider the circumstances under which it was written, in order to look at it as far as possible from the testator’s point of view. (8) Wills. Nature of Estates Created. Will construed and held; that while testatrix used language in the first instance, appropriate for the creation of a legal life estate in the entire residuary property, real and personal, the scheme of the will was based upon the establishment of a trust estate, entitling the husband to an equitable interest in the income only. (S) Will. Life Estates. Will construed and held; that language showing intention of giving husband of testatrix a life estate in the whole income was modified by later provisions showing intention that income from estate of husband should be used up for his support and only such portion of estate of testatrix should be used as became necessary, after his own resources were exhausted. (4) Wills. Construction. The fact that testatrix used words in a provision of a holographic will which in their technical meaning would create a life estate, will not be allowed to override the plain intent of the provisions taken as a whole, so as to prevent the creation of a trust estate or to nullify other provisions of the will relating to the disposition of the income by the trustees. (5) Wills. Technical Words. Where the context or other parts of a will indicate that technical words are not used in their ordinary technical meaning, they will be interpreted in the sense intended by testator. (6) Wills. Accumulation of Income. Will construed and held; that from the language “all income exceeding what is necessary for taxes, repair's, incidental expenses and salary of trustees to be credited to my estate, but to be used freely for the benefit of my husband, whenever his own income does not prove sufficient; but always his own income is first to be expended upon him and then when necessary falling back upon the income accruing from my trust estate.” “And all of the residue of the net income, to pay to my husband for his own use if he be able to care for and use the same, if not, deposit it in the name of my trust estate to be used for any necessity for his comfort,” it was the intent of testatrix that the trustees should accumulate the income, over and above such portion as might be expended for the support of the husband, and such accumulated income became a part of the trust estate to be distributed in accordance with the subsequent provisions of the will. (7) Wills. Accumulation of Income. If a part of the income of a trust estate is undisposed of, the trustees should, even in the absence of any provision, accumulate it and pay it to the legatees entitled to the original corpus of the estate. (8) Wills. Income. Anticipating Payment. Upon the question of anticipating the payment of surplus income during the life time of the life-tenant of a portion of such income, while it appeared that in all probability the principal of the trust estate would be sufficient to pay the pecuniary legacies, yet as large portions of both real and personal estate were specifically devised and bequeathed and other portions would have to be sold to raise the necessary funds, and it could not be known what would be realized from such sales, the court is not warranted in ordering payment of such income from time to time during life of life tenant, because it could not be determined at this time whether there was sufficient property to carry out all the provisions of the will and leave the accumulated income intact and for the further reason that the vested remainder was subject to open and let in any grandchildren born after death of testatrix, who might become entitled to share in the distribution of the residuary estate of which the accumulated income formed a part. (9) Wills. Vested Remainders. After leaving such portion of the income of a trust estate as was necessary for support of life tenant the residuary gift was as follows: — “Whatever may now be left of the so-called trust estate, I bequeath to the children and grandchildren of Maria and William Whipple Brown, of Providence, and Charlotte Perkins Gilman and daughter Catherine Stetson, to be equally divided, share and share alike.” Held, that the children and grandchildren of William Whipple Brown, together with Charlotte Gilman and Catherine Stetson, together took a vested remainder in the residuary estate at death of testatrix, subject to the limited equitable life estate. Held, further, that a grandchild who deceased after death of testatrix, being entitled to a vested estate in remainder, her interest in the real estate descended to her heirs and in the personal property, to her husband, unless disposed of by her will. Held, further, that the children and grandchildren took per capita with Charlotte Gilman and Catherine Stetson and with each other. (10) Wills. Conditions. Testamentary provisions: — “Within two months of my death I wish personal property sold to give B. $1,000:” Then followed a provision for the use of a house as a home for her husband. “ If B. should be in my employ and wish to continue he is to be retained at $40 each month and his room and board, his work to be to take care of the house and give some attention to (her husband). Should B. not be satisfied after giving it a fair trial he is to receive on leaving $500 with his wages, but should he remain with (husband) during his life, he is then to have $2,000 for his faithful services to us both.” In another part of the will testatrix made provision for her husband in the event that he was not able to live in the house, with no provision for B. The husband never used the house. Held, that the clause relative to B.’s wages was not intended as a gratuity, but as a provision for the support of the husband in a contingency which had not occurred. Held, further, that B. was not entitled to the sum of $500 since circumstances did not allow him to “give it a fair trial” and the legacy of $2,000 was conditioned on B. ’s remaining with the husband during his life which could not happen. (11) Wills. Conditions. Where a gift by will is made on an express condition precedent, which becomes impossible of performance (and the existence of impossibility is unknown to the testator), the gift cannot vest. (IS) Wills. Survivorship. Testamentary bequest: — “At the death of my said husband, I bequeath all the rest of my said trust estate — ‘ Out of which (the general trust fund) are first to be taken the following bequests, if all the parties are then living, if not their portion is to be retained in the general fund, until the so-called trust estate is fully closed.’ ” “To B. $2,000.” Held, that B. was entitled to the legacy only if he survived the husband, the meaning of the clause being that the gift was not to be paid to his personal representatives, but retained in the general fund.
34 R.I. 233Messier v. Messier (1912)
 (1) Bes Adjudicata. Issues. Plaintiff brought a suit in equity against his mother, among other defendants, to set aside a deed from the mother and for specific performance of an alleged agreement to make a will and it was decided that the evidence did not show a contract to make a will or a contract not to revoke the will or conduct -estopping her from revoking the same, and bill was dismissed. Thereafter, plaintiff brought suit against his mother, claiming compensation for services, board and expenditures, claiming that the services were rendered because of an agreement that he should be compensated by wifi. ¡Held, that the issues were not the same, and the issue in the latter suit was not res adjudicata in the equity suit. (%) Contracts For Work and Labor. Evidence. Held, further, that in the action in indebitatus assumpsit, the burden being on plaintiff to show that the services were not rendered voluntarily and gratuitously, and were not understood by defendant to be so rendered, although the contention in the equity suit had been decided against him, declarations-of defendant were properly admissible, even if they had some tendency to show a contract to make a will and an agreement not to revoke the same, for they tended to show that defendant understood that in some way plaintiff was to be compensated. (8)Work and Labor. Contracts. A man who expects to be paid for his services by a legacy cannot afterwards- ' resort to his action for the value of such services, if only a mere expectation on his part is shown. (4) Appeal and Error. The court cannot pass upon the exclusion of a deposition, where the deposition does not appear as an exhibit and the court is not informed as to its contents- (6) Work and Labor. Evidence. In an action by a son against his mother for services, the admission of the bitt of complaint and the opinion of the court thereon, in an equity case between the parties wherein the court decided that the mother did not agree t° make-a will in favor of the son, was not prejudicial to plaintiff, since the son could recover in the suit for services only because his contention in the equity suit was decided against him. (i6) Work and Labor. Compensation by Will. Where a son gave board or services or paid out moneys for his mother with her consent with the expectation of being paid therefor by will, and the mother expected to pay for the same by will, then he can recover therefor in an action of assumpsit what is reasonable, where the mother has by conveyance of her property put it out of her power to compensate him by will. (7) Work and Labor. Parent and Child. In an action by a son against his mother for services, the amount of services-rendered would affect the amount of recovery, but not the right of recovery, therefore a request to charge that a small amount of services or small amount of money expended might be considered a gift, but it might be highly improbable that a poor man would give or intend to give a large amount for many years, when other children were contributing nothing, was properly refused. (8) Work and Labor. Contracts. In an action by a son against his mother for services rendered a request to charge based solely on the expectation of compensation, was properly refused» (9) Work and Labor. Statute of Limitations. Where a son expected to receive compensation for his services by will, and his mother expected to pay him by will and allowed him to think he would be so paid, the statute of limitations did not commence to run until in some way the mother gave him notice that he would not be so paid. (10) Mutual Accounts. Statute of Limitations. In mutual accounts and dealings an obligation arises not from each item, but from and for the balance only. Hence the statute of limitations begins to-run only from the date of the last item. (11) Mutual Accounts. Work and Labor. Statute of Limitations. Upon a running account between a son and his mother, based on services rendered the mother, on a promise to pay the son by will, he would have no right of action in the absence of a repudiation of the agreement, until it had been fully performed, but where it has been repudiated, by act of the mother in the conveyance of her property, the right of action upon the balance representing the debt between them, thereupon accrued and the statute of limitations began to run upon that date.
34 R.I. 256Andrews v. O'Reilly (1912)
Debt on Judgment. Heard on exceptions of plaintiff, and overruled.
34 R.I. 260Fox v. Artesian Well and Supply Company (1912)
(.1) Error and Appeal. Review. Exceptions. Removing Default. Judgments. Art. XII of Amendments to Cons. R. I., Section 1, provides that “The supreme court shall have final revisory and appellate jurisdiction upon all questions of law and equity.” Gen. Laws, 1909, cap. 272, § 2, provides “The supreme court shall have general supervision of all courts of inferior jurisdiction to correct and prevent errors and abuses therein when no other remedy is expressly provided.” Held, that the court had jurisdiction to entertain a bill of exceptions based on,an alleged abuse of judicial discretion in vacating a nil dicit judgment in the Superior Court. Trespass on the Case for negligence. Heard on motion of defendant to dismiss plaintiff’s bill of exceptions, and denied.
34 R.I. 261Lynch v. Lynch (1912)
■(1) Divorce. Grounds. In Pari Delicto. Upon a petition for divorce, on the ground that the marriage was void, for the reason that at the time, petitioner had a husband living, who was still alive, it was error for the court to dismiss the petition on the ground that petitioner was in pari delicto with the respondent, since the second marriage was a nullity and the court should so declare. Under such facts the legal status of petitioner is something in which the State as well as the parties is interested.
34 R.I. 263Clary v. Wolf (1912)
(1) Contracts. Evidence held, insufficient to show a contract between the parties. (2) Evidence. In assumpsit to recover for work and labor the admission of question to defendant “you intended to have these steps fixed, at all events?” while immaterial was not prejudicial error. (8) Contracts. Acceptance. In assumpsit for work and labor in the construction of a staircase on property in possession of tenant of defendant, charge of the court, that if the jury found the work was done without request of defendant and under a mistake by plaintiff, and that defendant ordered it removed, yet if she used the staircase or permitted her tenants to do so, plaintiff could recover, constituted reversible error, since by the notice to remove the work performed without her knowledge defendant had done all she was required to do and there was no evidence of any use, by which a ratification might be shown. Upon such facts the burden of seeing that tenants did not use a staircase which from want of proper surroundings was neither available nor led to anything which a tenant might require was not cast upon defendant and the fact that a tenant might have used the steps at some time would not amount to their acceptance by defendant.
34 R.I. 270Tourjee v. Matteson (1912)
{1) Suit Against Officer Revived Against Successor. During the pendency of an action against defendant as town treasurer, defendant was re-elected, but resigned and a new treasurer was elected by the town council. Over a year from the qualification of latter, he was • summoned in to answer the case and entered a general appearance. Subsequently on motion the case was dismissed under Gen. Laws, 1909, cap. 283, § 13, providing that no action pending against any officer in his capacity - as such shall abate in consequence of his ceasing to hold Ms office within one year thereafter, but at any time within such year his successor may be summoned in to defend such action. Held, properly dismissed. .Saunders vs. Pendleton, 19 R. I. 659, affirmed. (3) Suits Against Officer. Revival. Abatement. Under Gen. Laws, 1909, cap. 283, § 13, suits against an officer become dormant upon his death or ceasing to hold office, subject to be revived at any time within a year thereafter, but in case no successor enters appearance within the year the suit abates by operation of law, and having abated can not be revived. Therefore the questions of general appearance and waiver have no application. •(3) Statutes. Construction. Marginal Notes. Marginal notes to statutes while no part of the same, yet afford some indication of the construction placed thereon by the compilers thereof.
34 R.I. 273J. P. Morgan & Co. v. Hall & Lyon Co. (1912)
(1) Corporations. Guaranty. Ultra Vires. While a corporation is not ordinarily bound by a contract of guaranty, for the benefit of third parties, such guaranty may be given in the accomplishment of any object for which the corporation was created or when the particular transaction is reasonably necessary or proper in the conduct of its business, and whenever an act may under any circumstances be reasonably necessary, a party dealing with the corporation has the right to assume, without notice to the contrary, that the act is binding upon it. (2) Corporations. Ultra Vires. Guaranty. Defendant corporation operating a drug store, by its treasurer signed a written guaranty of a letter of credit issued by plaintiffs to X. There was no evidence to show whether X. was in any way connected with defendant. Held, that there was nothing in the transaction to excite suspicion that the matter was one of accommodation and the fact that the letter of credit was in the name of a woman was not sufficient to put plaintiffs upon inquiry, and plaintiffs were entitled to the presumption that the treasurer was acting within his authority. (S) Contracts. Consideration. Plaintiff undertook to furnish to X. a letter of credit for a certain sum to be drawn by her at such times and in such amounts as she might determine and. defendant guaranteed to pay such amounts to plaintiff as might be drawn upon such letter. Held, that X. having received the amount of the letter of credit the conclusion was inevitable that she received the money by virtue of some arrangement between plaintiff and his correspondents, and there being no failure of consideration defendant was liable under the terms of such guaranty.
34 R.I. 279Baran v. Silverman (1912)
Trespass for Assault and Battery. Heard on exceptions of defendant, and sustained.
34 R.I. 283Galvin v. Rhode Island Company (1912)
(I) Street Railroads. Negligence. Rear End Collisions. Pleading A declaration which alleges that a car of defendant was moving in the same direction as the wagon in which plaintiS was being carried as a passenger; that plaintiff was in the exercise of due care; that he had no control over the driver of the wagon; that without any notice or warning defendant operated its car so negligently that it struck the wagon and threw plaintiff therefrom, injuring him, shows with sufficient clearness a rear end collision brought about by the negligence of defendant without warning of approach under such circumstances as to preclude plaintiff from stating more facts regarding it, and sets forth a prima facie case of actionable negligence. Whether plaintiff is obliged to negative by allegation and proof the negligence of the driver of the wagon is not decided.
34 R.I. 288Ziegler v. Thayer (1912)
(1) Bankrupt Act. Insolvency. Fair Valuation. Under the provisions of the federal bankruptcy act, Section 1, subdivision 15r insolvency turns on what is a fair valuation of the property; hence m a. proceeding to set aside a transfer brought by a trustee in bankruptcy, evidence offered by the bankrupt as to the value of his property “to him” was properly excluded. {2) Bankrupt Act. Insolvency. Fair Valuation. Fair valuation of property within the contemplation of the bankrupt act relative to insolvency of the alleged bankrupt would be the present market value, rather than the value to the bankrupt or the value of such property at a forced sale. (8) Bankrupt Act. Preferences. Transfers of a bankrupt’s property within the four months period, which would be voidable as a preference, cannot be rendered valid, by reason of a parol agreement for security made prior to the commencement of said period. (4) Bankrupt Act. Preferences. Mortgages. Record. The federal bankruptcy act, Section 67, clause “a,” provides “claims which for want of record or for other reasons would not have been valid liens as against the claims of the creditors of the bankrupt, shall not be liens against his estate.” Gen. Laws, 1909, cap. 258, § 10, provides that no mortgage of personal property shall be valid except as between the parties, unless possession is taken or it is recorded in accordance with the statute within five days of its date:— Held, that as a mortgage would not have availed as against creditors unless recorded in accordance with the'statute, a parol agreement to give security was without effect.
34 R.I. 297Carney v. Hawkins (1912)
•(1) Probate Law. Account of Executor. Evidence. •On a probate appeal from the allowance of an account of an executor, the only evidence submitted was offered by the appellants and only as to certain of the items objected to. While the account of the executor sworn to was submitted it did not appear that the account was submitted by or sworn to.' by him in court, or that the executor was present so that he could be cross-examined, nor that the appellants consented to the admission of the account as 'prima facie evidence, and waived proof of the items of the account:— Held, that the procedure was irregular, since the mere presentation of the-.account from the Probate Court was not evidence of .the correctness or propriety of the items, and should not have been accepted by the court except by stipulation of the parties, and in allowing the items the court-acted without evidence and so without authority. (0) Probate Law. Account of Executor. Appeal. Procedure. Under rule 14 (law rules) of the Superior Court, on appeal from an account of an executor or administrator, the administrator or executor who presented' the account in the Probate Court is “the party holding the affirmative”' and should proceed to present the account and vouchers or other evidence in support of the items as to which appeal is claimed, at the outset, otherwise there is no evidence as to which appellants are required to offer any testimony. (8) Probate Law. Account of Executor. Where it appears that an execution settled by ah executor was on a personal'! judgment against himself and not against the estate, the item is properly disallowed. (4) Probate Law. Amendment. Actions. After disallowance of a claim filed in a Probate Court, claimant brought suit, against the executor personally, and more than a year after notice of such disallowance, by agreement of parties the writ and declaration were amended' so as to make it a suit against the estate:— Held, that the attempted amendment of the suit was in legal effect the institution of a new suit against the executor after the statutory period of limitations of six months, under C. P. A., § 891, had taken effect, and the payment of a judgment on such action by the executor should be disallowed. (5) Probate Law. Special Statute of Limitations. Waiver. A claim against an estate of a decedent is absolutely extinguished by the-special statute of limitations if not sued within six months after notice of disallowance; this cannot be waived by the executor, and if he attempts to do so the court will, on its own motion, apply the rule of the statute. (.6) Amendment. Pleading. Amendments permitted by statute to pleadings do not include such amendment as would make one suit into another of a different form or for a different cause of action.
34 R.I. 304Sowter v. Seekonk Lace Company (1912)
(1) Corporations. Directors. Ultra Vires. An agreement of a board of directors of a corporation attempting to bind the corporation and stockholders as to the membership of the board of directors is ultra vires. (8) Pleading. Demurrer. Surplusage. In an action of covenant an allegation of the breach of an ultra vires portion of an agreement between the parties does not render the count demurrable where it alleges another breach of the agreement which constitutes a good cause of action, but it should be treated as surplusage. (8) Pleading. Demurrer.' Surplusage, In an action of covenant for breach of an agreement under seal, the fact that the agreement set out in the declaration, does not contain a covenant, the breach of which is alleged, does not render the count demurrable, but the matter is surplusage, as is also the irrelevant recital of another agreement between plaintiff and third persons, where disregarding all immaterial matters there still remains allegations of a good cause of action. (4) Pleading. Redundancy. Counts which do not differ substantially from one another are open to the-objection of redundancy, but this cannot be reached by demurrer. (5) Pleading. Demurrers. Setting out Evidence. A declaration for breach of covenant to employ alleging loss of other opportunities, is not demurrable for not setting out what were the opportunities; with what persons and for what compensation, since a pleader is not required to set out his evidence. (6) Pleading. Demurrers. Where a declaration alleges several elements of damage, the failure to allege properly one of the items will not render the count demurrable. (7) Pleading. Joinder of Actions. In an action of covenant, a plaintiff may join all the different causes of action which can be prosecuted under this form of action, at common law. (8) Pleading. Joinder of Actions. Doubt. In an action of covenant plaintiff joined two counts in covenant under a sealed agreement with one in the general form of a count in assumpsit, upon an independent cause of action, arising out of a different matter, and he did not join any other count in covenant based upon the same matter. Held, that, under Gen. Laws, 1909, cap. 283, § 26, plaintiff could properly join the counts, and was not required to disclose either the existence of or the reasonableness of his doubt as to the form of action, but his conclusion that it existed was controlling. Decision in Adams v. Lorraine Co., 29 R. I. 333, that the intent of Gen. Laws, 1909, cap. 283, § 26, as to joinder of counts in various forms of action, where plaintiff is in doubt as to the proper action, is to do away with the distinction between certain forms, so far as the adequacy of the writ to support counts in either form is concerned, affirmed. Vincent, J., dissents.
34 R.I. 312Murad v. New York, New Haven & Hartford Railroad (1912)
Trespass on the case for negligence. Heard on motion ■of defendant to dismiss plaintiff’s bill of exceptions and ■denied.
34 R.I. 316Woodward v. Congdon (1912)
 ■(1) Wills. Lapsed Legacies. Residue. "Where X and Y were legatees and also residuary legatees and devisees, and X deceased in life time of testatrix, intestate, and without issue, the legacies which thereby lapsed, passed into the residue and the entire residue thus augmented passed to Y. ■Í0) Wills. Lapsed Devises and Legacies. Under the rule of the common law as adopted in this state, lapsed legacies fall into the residue, and Gen. Laws, 1896, cap. 203, § 7 (now Gen. Laws, 1909, cap. 254, § 7), provides that unless a contrary intention appears in the will, lapsed devises shall fall into the residue, and if a residuary devisee or legatee die before testator without leaving issue living at testator’s decease, the-remaining residuary devisees or legatees shall take his share, as therein, provided. Held, that the intent of the statute was to prevent intestacy in the case of a. lapsed residuary devise or bequest and to provide for survivorship where any residuary devisee or legatee remains at death of testator. Held, further, that where an estate was left in such manner that a lapse might occur, without any ultimate disposition of such legacies or devises as might-lapse, other than that contained in a general residuary clause, the testator must be deemed to have executed the will with regard to the provisions off the statute. (S) Wills. Construction. A will should be construed so as to avoid partial intestacy if such construction is natural and reasonable. {4) Wills. Lapsed Legacies. Residue. Presumption. Where one of two residuary devisees and legatees deceased within a week after the execution of the will, since the will is to be deemed to have been executed in view of Gen. Laws, 1896, cap. 203, § 7 (now Gen. Laws, 1909, cap. 264, § 7),, of lapsed devises and legacies), it is to be presumed that if testatrix had not-intended the remaining residuary devisee and legatee to take under such statute, she would have made other provision for the disposal of that portion, of the estate.
34 R.I. 324Sauthof v. American Central Insurance (1912)
 (1) Fire Insurance. Appraisal. Under the provisions of an insurance 'policy, “1. The company shall not be-liable beyond the actual cash value of the property at the time any loss or damage occurs and the loss or damage shall be ascertained or estimated according to such actual cash value — said ascertainment or estimate shall be made by the insured and this company, or if they differ, then by appraisers— it shall be optional with this company to take all or any part of the articles at such ascertained or appraised value — ■. 2. If fire occur the insured — shall make a complete inventory, stating the quantity and cost of each article and the amount claimed thereon, and within sixty days after the fire — shall render a statement to this company stating the cash value of each item thereof and the amount of loss thereon” the report of appraisers fixed the sound value of the damaged property and the loss thereon in the aggregate and did not show the sound value of and loss upon each particular article. Held,, that an itemized appraisal was necessary to the exercise of certain rights expressly given the defendant, and therefore the report of the appraisers as rendered was not a sufficient compliance with the statute and was void. {2) Construction of Statutes. In the construction of statutes, the intent of the whole act shall control, and all the parts be interpreted as subsidiary and harmonious, so that no clause, sentence or word shall be void, superfluous or insignificant. Words and clauses in different parts of a statute must be read in a sense which harmonizes with the subject matter and general purpose of the statute. If upon examination, the general meaning and object of the statute should be found inconsistent with the literal import of any particular clause or section, such clause or section must if possible be construed according to that purpose.
34 R.I. 333Grim v. Lee (1912)
(1) Municipal Corporations. Town Councils. Town Officers. Defence of Police Officer. A town council has discretion to direct the town solicitor to defend a police officer of the town, in a suit for damages growing out of his acts as such officer, where they believe he was acting in good faith in the performance-of his duty in the matter, and the attorney may recover against the town the reasonable value of his services
34 R.I. 337Carroll v. Sanford (1912)
(1) Attachment. Curtesy Initiate. Married Women. An estate of tenancy by the curtesy initiate is not attachable for the debts of the husband.
34 R.I. 345Trainor v. Lee, City Treasurer (1912)
(1) Municipal Corporations. Current Expenses. Municipal Officers. Services of a chief of police and town sergeant are within that class incidental to the ordinary daily affairs of a municipal corporation, and the compensation therefor falls within the current expenses of such corporation. (8) Municipal Corporations. Current Expenses. Municipal Officers. The services of a dog officer, under the statutes, are incidental to the management of the affairs of a town as a proper police regulation and the compensation therefor fixed by law is to be deemed one of the current expenses of the town. (8) Municipal Corporations. Statutory Fees. Debt Limit. Whether or not a town has exceeded its debt limit has no application as to fees fixed by statute as compensation for a duty imposed by law. (4) Municipal Corporations. Statutory Fees. Debt Limit. Evidence. In an action brought by plaintiff for services rendered by him as chief of police, town sergeant and dog officer, evidence offered to show that the debt limit of the town had been exceeded, was immaterial, in the absence of proof showing that the town had not the means in its treasury to pay the claims or that it would not have the means from its current revenues. {5) Evidence. Record Evidence. In an action to recover for the services of a municipal officer oral evidence offered by defendant’s counsel in person, that there was no appropriation made by any proper authority from which payment of plaintiff’s claim could be made, was properly excluded, where the record evidence was neither produced nor the lack of such evidence accounted for.
34 R.I. 358Bagley v. Lee, City Treasurer (1912)
(1) Municipal Corporations. Statutory Fees. Debt Limit. Opinion in Trainor v. Lee, 34 R. I., 345, that as to fees fixed by statute, as compensation for a duty imposed by law, the question of whether or not a town has exceeded its debt limit has no application, approved and followed. (¡8) Municipal Corporations. Claims Against Town. A claim for repairing bicycles of and used by police officers in the performance of duty was approved and ordered paid by a town council. Such repairs had been customary and had been frequently made by plaintiff and paid for by the town. Defendant offered no evidence in dispute of the claim:— Held, that a motion for new trial after verdict for plaintiff, was properly denied.
34 R.I. 361Vaill v. McPhail (1912)
(1) Appeal and Error. Equity. Under Gen. Laws, 1909, cap. 289, providing that any party aggrieved by a final decree, entered in the Superior Court in an equity cause may appeal to the Supreme Court, it is not the intent of the statute to remove the cause by appeal to that court for a re-trial, but merely for the purpose of reviewing the errprs stated in the appellant’s reasons of appeal. (2) Appeal and Error. Equity. Stating Reasons of Appeal. In equity appeals the appellant should clearly indicate in his reasons of appeal ' the particular errors of the Superior Court of which he complains and which he seeks to have reviewed. These reasons should be stated separately and specifically, and should consist of a statement of the erroneous rulings, orders or decrees to which the appellant objects, and not of the reasons upon which he bases his claim of error. (8) Appeal and Error. Equity. Stating Reasons of Appeal. The statement of reasons of appeal in equity causes, of exceptions in a bill of exceptions and the assignments of error in an application for a writ of error are of the same nature and subject to the same requirements. (4) Appeal and Error. Equity. The rule adopted in Blake v. Atlantic Natl. Bank, 33 R. 1.109, and Dunn Mills v. Allendale Mills, 33 R. I. 115, with regard to the form of statement of exceptions in a bill of exceptions is applicable to the form of reasons of appeal in equity causes. (5) Appeal and Error. Equity. A claim of appeal in equity alleged that the decision of the justice upon which the final decree was based was (a) erroneous and against the evidence; (b) against the law; and that the final decree was (a) against the evidence and (b) against the law:— Held, that the reasons of appeal set out that the determination of the court upon the facts was not warranted by the testimony and his application of equitable principles to the facts as he found them was erroneous; that the reasons were not indefinite and were sufficiently specific and to the consideration of such alleged errors appellants would be restricted. (6) Probate Appeals. Semble: While the statute in regard to probate appeals provides that the appellant shall be restricted to his reasons of appeal specifically stated, yet in practice due to the nature of the proceedings, the trial in the Superior Court in most cases is essentially de novo. When the subject matter and the appellant’s relation to it permits, although the moving party in the probate court, continues to be the moving party in the Superior Court, the trial in the latter court is restricted within the limits fixed by the reasons of appeal.
34 R.I. 376Clarke v. Joslin (1912)
(1) Elections. Ballots. Quo Warranto. Where in a petition in equity in the nature of quo warranto bringing in question the title to the offices of town council and tax assessor, it appeared that the town council did not mark as “defective” the rejected ballots, nor separate them, but placed all the ballots in a sealed package, the court cannot open the package and review the action of the town council, as the ballots cannot be identified, nor upon the allegations in the petition, assume the functions of the town council and recount the vote. (2) Elections. Ballots. Quo Warranto. Upon a petition in equity in the nature of quo warranto bringing in question the title to the offices of town council and tax assessor, without examining the ballots, evidence of witnesses as to the “defective” ballots heard and:— Held, that more than 16 and less than 25 ballots cast for petitioners were illegally rejected and claims of certain of petitioners to the offices sustained. (8) Elections. Ballots. Distinguishing Marie. A ballot having one line of the (X) crossing, but not extending to the same length as the other line, producing a mark to a certain extent resembling the letter “ Y,” is not invalid as constituting a distinguishing mark. (4) Elections. Ballots. Distinguishing Mark. A ballot having a so-called “hook” consisting of a slight curve at the top of one of the lines forming the (X), is not invalid as constituting a distinguishing mark.
34 R.I. 381Sanitary Oyster Carrier & Commission Co. v. Wm. M. Merwin & Sons Co. (1912)
(1) Exceptions. Final Decision. Where on a declaration containing several counts, a demurrer is sustained to one count and overruled as to the others, the decision of the Superior Court, sustaining the demurrer being a “decision prior to trial,” cannot under Gen. Laws', 1909, cap. 298, § 24, be brought up on exception until “after verdict or final decision on the merits.” {%) Pleading. Several Counts. In legal theory each count in every declaration is in effect a separate and distinct suit upon a different cause of action.
34 R.I. 383Carroll v. Ryder (1912)
 (1) Reformation of Instruments. Mutual Mistakes. On a bill for reformation of a deed, evidence considered, and held to show a mutual mistake, justifying reformation of the deed. (2) Reformation of Instruments. On a bill for reformation of a deed, the question whether a building was actually located within the lines of the lots intended to be conveyed is unimportant where it appears that the removal of an unnecessary portion of the foundation wall would bring the building as a whole within the westerly line of one lot and also within a line drawn in continuation of that line to meet the westerly line of the other lot. ■ (8) Reformation of Instruments. Rights of Attaching Creditors. Laches. Four years after the delivery of a deed conveying by mutual mistake óf the parties the wrong premises, and prior to the filing of the bill to reform the deed, a creditor of grantor attached the lots intended to have been conveyed, without notice of grantee’s equity. Held, that as grantee filed his bill within a reasonable time after obtaining information of the mistake, he was not guilty of laches. Held, further, that the rights of attaching creditors are determined by the state • of the title at the time of attachment and in the absence of fraud and statutory regulations they only obtain the rights which the debtor had in the property at the time, for the creditor is not in the position of a hona fide purchaser.
34 R.I. 389Heck v. Casey (1912)
Petition to enforce mechanic’s lien. Heard on appeal of respondent and sustained.
34 R.I. 391Centreville National Bank of Warwick v. Inman (1912)
(1) Removing Default. Passing on Defence of Defendant. In the matter of motions to take off defaults, where the question whether the defendant has a defence on the merits is involved, the court will not seek to determine whether the defence claimed will prevail on a trial. (#) Removing Default. Passing on Defence of Defendant. Upon a motion to remove a default, it was error for the court to pass upon the truth and sufficiency of defendant’s claim, which could only properly be passed upon by a jury or by the court in case jury trial was waived.
34 R.I. 394Rhode Island Hospital Trust Co. v. Dunnell (1912)
(1) Trusts. Powers. Wills. A fund was left to a trustee to pay over the income to X. for her life and upon her death to stand seized “to such uses and in such manner and for such persons as such deceased' shall by her last will declare and appoint concerning the same; and in default of such will then in trust for such persons as shall be the then heirs at law of such deceased, of my blood according to the statutes of descent then in force in said State of Rhode Island, such persons to take in the proportions prescribed by the same statutes.” X. deceased leaving a will containing no reference to the power of appointment or to the fund, but containing a residuary clause bequeathing “all the rest, residue and remainder of my estate and property of which I may die seized or possessed or to which I may be entitled, whether real or personal:”— Held, that, under Gen. Laws, 1896, cap. 203, § 9 (now Gen. Laws, 1909, cap. 264, § 9), “a bequest of the personal estate of the testator or any bequest of personal property described in a general manner, shall be construed to include any personal estate or any personal estate to which such description shall extend, as the case may be, which he may have power to appoint in any manner he may think proper, and shall operate as an execution of such power, unless a contrary intention shall appear by the will,” the bequest included the personal estate over which she had the power of appointment, and operated as an execution of the power. (2) Statutes. Following Foreign Construction. Where a foreign statute has received a definite construction prior to its adoption in this State, the construction given to it in the jurisdiction of its origin will also be adopted when the statute itself is copied. (8) Conflict of Laws. Wills. Powers. While the law of the domicile of the donor controls as to the execution of the power by the donee, the fact that the will giving the power was made and took effect before a change in the statutes, is immaterial, for where the will of the donor did not specify that the power should he. exeeittnd-ogv^ky a. special form of will, the legislature can determine the construction of a later will and give it the effect of executing a previously granted power.
34 R.I. 409Dodge v. Lavin (1912)
Bills in Equity. Heard together on bills, answers and proof, and certified under Gen. Laws, 1909, cap. 289, § 35.
34 R.I. 416Eastman v. Dunn (1912)
 (1) Pleading. Assumpsit. Election of Counts. Upon a declaration containing two counts in special assumpsit for breach of' an express contract and two counts in indebitatus assumpsit, for the value-of an option and for work and labor, the court did not err in refusing to; order plaintiff to elect between the two sets of counts. ($) Pleading. Assumpsit. Verdicts. Where on a declaration containing counts for breach of an express contract; and counts in indebitatus assumpsit, the jury found by a special finding that there was an express contract, it is to be inferred that a general verdict, was based upon the breach of such an express contract. (S) Contracts. Where jilaintiff under an agreement with defendant turned over to him an option whereby defendant received a valuable lease and in accordance with the agreement, looking to an ultimate partnership interest, devoted his. time and services at defendant’s request in an endeavor to carry out the agreement, upon the repudiation of the agreement by defendant, plaintiff may recover in assumpsit both the value of the option and of his services. In such action, where the value of the option and of the lease obtained thereunder was shown by expert testimony to have been upwards of $23,000 at. the time when it was procured, a verdict for $18,000 will not be disturbed. Rule of damages, where breach consists in preventing the performance of the contract without the fault of the other party, who is willing to perform, fully stated. (4) Contracts. Agency. Where plaintiff entered into a contract with defendants who were joint lessee» of certain property, defendants must be deemed to be agents each for tha other in matters relating to their common interests. (5) Pleading. Counts. Special Findings. Where upon a declaration in several counts, defendant had the opportunity to submit issues to the jury under each count, but refused, it cannot thereafter complain of a general verdict which the court finds to be conservative under the evidence. (£>) Contracts. Option. Unless a contract or option provides for acceptance in writing, an oral acceptance is sufficient or it may be proved by the acts of the parties. (7) Contracts. Option. Charge of Court. Charge of court that if the jury found for plaintiff he would be entitled as damages to the fan market value of a lease at the time he turned it over to the defendant, was not prejudicial, where plaintiff had accepted an option whereby he might have taken the lease in his own name and assigned it to defendant, but to avoid this circuity permitted it to be made direct to defendant. (8) Contracts. Charge of Court. Gift. Charge of court that if plaintiff had an accepted option that was of value, as defendant claimed it was a gift to him, the burden was upon defendant, to establish that position and to satisfy the jury by a fair preponderance of the evidence that it was a gift, was proper. (9) Evidence. In an action for breach of contract, between plaintiff and defendants, where defendants were joint lessees of certain property and had joint interests analogous to that of partners, plaintiff was properly permitted to introduce evidence for what it was worth, of things done by him at request of one defendant at a time when latter had told plaintiff that he and the other defendant were having nothing to do with each other, as plaintiff did not know the breach was irreconcilable and the evidence tended to show the relations of the parties and that plaintiff was acting in good faith in an endeavor to carry out the agreement, since each defendant was the agent of the other in matters of their common interest. (10) Manufactured Evidence. Secondary Evidence. Proving Notice of Claim by Parol. A duplicate carbon copy of a letter sent by plaintiff to defendant by registered mail, which was a mere notice intended to ascertain whether defendant would carry out his 'agreement with plaintiff without stating what such agreement was, is not open to the objection of being manufactured evidence, and also comes under the exception to the rule regarding secondary evidence, that a notice of claim may be proved by parol or by duplicate and the original need not be required. It was also admissible in connection with admissions of and conversations with defendant, to connect and explain them and show that the action was not prematurely brought. (11) Evidence. Credibility. Evidence tending to prove that defendant had made statements that he had rehearsed his story with others and would swear the court house out if necessary, was properly admitted as affecting his veracity, as well as on the ground of public policy. (IS)Evidence. Motive. In an action for breach of contract where plaintiff had permitted defendants to obtain a lease under an option held by plaintiff, the motive which influenced plaintiff to delay before accepting the option, within the time provided for such acceptance, is immaterial. (IS) Contracts. Evidence. Damages. Values. Upon the question of the value of an option, testimony of a real estate broker, as to its value and also as to the value of the property at certain dates and the rate of increase in value of the property during a certain period and the reasons therefor, was admissible both as showing his familiarity with the property and other surrounding property, as a part of his qualification as an expert, and as showing the value of the option. (14) Expert Testimony. The competency of persons offered as experts is generally a question for the trial court, and unless its ruling is palpably and grossly wrong, it will not be reversed. (15) Contracts. Evidence. In an action for breach of contract upon the question of the value of an option where it appeared that plaintiff had accepted the option and made use of it as a basis of an agreement with defendant, whether he could have exercised it himself without aid from others or could have gotten anything for it from other parties, is immaterial. (16) Contracts. Evidence. Damages. « Upon the question of the value of an option, turned over to defendant whereby he acquired a lease, evidence as to a statement made by defendant of his price for the lease, as well as a paper containing figures given by defendant to a real estate agent to be used in interesting a prospective purchaser of the leasehold interest shortly before the trial, are admissible as admissions against interest as well as to explain in connection with other evidence the treatment of plaintiff by defendant, after he had acquired plaintiff’s rights. (17) Contracts. Evidence. In an action for breach of contract upon the question of the value of an option where it appeared that plaintiff had accepted the option and made use of it as a basis of an agreement with defendant, whether he paid anything for the option is immaterial. •(IS) Contracts. Evidence. Damages. In an action against defendant for breach of contract, upon the question of the value of an option acquired by defendant from plaintiff, evidence offered by defendant tending to prove that the owner of the property had been trying to sell it at a lower figure and had given a previous option at a lower figure, was properly excluded. (19) Contracts. Evidence. Damages. In an action against defendant for breach of an agreement, upon the question of the value of an option acquired by defendant as a result of such agreement from plaintiff, evidence as to whether the owner of the property would have allowed plaintiff to accept the option if he had not had a satisfactory financial backer, was immaterial and properly excluded, where it was provided in the option that plaintiff should give bond with sureties satisfactory to the owner, which contemplated such a financial backer and plaintiff testified that he had one before he met defendant. •(SO) Expert Evidence. Opinions. Evidence calling for opinions from witnesses as to the value of the testimony of other experts is properly excluded. (SÍ) Contracts. Evidence. In an action against defendant for breach of an agreement upon the question of the value of an option, evidence of an expert as to whether in his experience he had ever known an option on real estate to be sold for any considerable sum was properly excluded.
34 R.I. 462McAuslan v. McAuslan (1912)
f1) Error and Appeal. Appeals in Equity. Final Decrees. A final decree in equity is not necessarily the last order in the case. A decree to be final must terminate the litigation of the parties on the merits of the case, so that if there should be an affirmance on appeal, the court below would have nothing to do but to execute the decree it had already rendered. There is an exception to this rule, where to enforce it would result in possible hardship and injury, and in such cases decrees strictly interlocutory are held to possess such an element of finality as to bring them within the terms of the statute. (2) Appeal and Error. Appeals in Equity. From Interlocutory Decrees. Besides the appeals from interlocutory decrees provided for by statute, cases may occur of decrees in a strict sense interlocutory, which by reason of their possible injurious consequences require an immediate review, and must be held for this reason to have such elements of finality as to permit an immediate appeal. (S) Error and Appeal. Appeals in Equity. From Interlocutory Decrees. ■ Several Defendants. Another class of decrees offers a modification of the general rule. Of this class is a decree made as to one of several defendants whose interests are not at all connected with each other, with a direction for the payment of costs as to that defendant. Such decree is final as to him, although the cause may be still pending in the court as to the rest. Í4) Error and Appeal. Appeals in Equity. Final Decrees. Accounting. Upon a bill in equity seeking the removal of a trustee and an accounting, which is sent to a master to take the account and to report upon the removal of the trustee, the decree of the Superior Court confirming the master’s report is not the final decree in the cause, as more is required to give the complainant the relief desired. (5) Error and Appeal. Appeals in Equity. Final Decrees. A final decree in an equity cause is the decree which finally determines the rights of the parties, provides for the relief which the court finds to be necessaiy, and at most merely requires one or more orders or supplemental decrees for its enforcement. An appeal from a final decree in equity brings up for review all matters contained in such decree and all previous rulings, orders or decrees made or entered in the cause previous to the entry of such decree; unless such decree or such previous rulings, orders or decrees from the circumstances or the manner in. which they have been made or entered, are not reviewable, and said decree or such previous rulings, orders or ffecrees are not reviewable unless it is specifically stated in the reasons of appeal that objection is made to such decree or previous rulings, orders or decrees. {6) Error and Appeal. Appeals in Equity. Supplemental Decree. A supplemental decree or order for the execution of the final decree, as, above defined, is also so far a final decree as to support an appeal, but an appeal from such supplemental decree will bring up for review only such matters as are involved in the decree itself or matters arising subsequent to the entry of the final decree, but it cannot bring up any alleged error in the final decree itself or any matters arising in the cause previous to the entry of the final decree, and only the alleged errors stated in the reasons of appeal. (7) Error and Appeal. Appeals in Equity. Trusts. Removal of Trustee. Accounting. Upon a bill in equity seeking the removal of a trustee and an accounting, where it was clear upon the pleadings that complainants were entitled to the account, and there were no issues raised by the pleadings which required determination before a reference to a master, the court properly referred the cause to a master after bill, answer and replication filed, and the question of the removal of the trustee was involved in the question of the nature and propriety of his dealings with the trust estate and the master was propei'ly directed to report his conclusions upon the question of removal. (8) Error and Appeal. Appeals in Equity. Accounting. Tr'usts. Framing of Issues. Where a cause is referred to a master to state an account and to report upon the removal of a trustee, the decree of reference being entered after notice and hearing and the scope of the reference being particularly defined in the decree, there is no force in the objection that such reference preceded the framing of issues. (9) Error and Appeal. Appeals in Equity. Trusts. Accounting. Masters. Delegation of Authority of Court. Where upon a bill in equity seeking the removal of trustee and an accounting the cause is referred to a master under Gen. Laws, 1909, cap. 289, § 17, to hear testimony and report it and his findings to the court, there is no delegation to the master of the court’s power of decision in the cause. (10) Error and Appeal. Appeals in Equity. Masters. Due Process of Law. Trusts. Upon a bill in equity seeking the removal of a trustee and an accounting, the reference of the cause to a master under Gen. Laws, 1909, cap. 289, § 17, to hear testimony and report it and his findings to the court, is not obnoxious to the fourteenth amendment to Cons. U. S., as not having been in accordance with “due process of law.” (11) Error and Appeal. Appeals in Equity. Report of Master. Objections to Report. Exceptions. As under the practice in equity exceptions cannot be taken to the report of a master, where no objections were taken to such report before the master, under the statute the findings of the master became conclusive on the parties, and an appeal from the decree entered in the cause does not have the effect of opening that matter before the appellate court. (IS) Appeals from Report of Master. If the Superior Court should not have reversed the findings of a master in the absence of exceptions to his report, the Supreme Court, upon appeal, will not consider the propriety of his findings nor reverse nor modify them.
34 R.I. 478Newport Water Works v. Taylor (1912)
(1) Construction of Contracts. In the construction of contracts, the intention of the parties must govern when it can be clearly inferred from the terms of the contract and can be fairly carried out consistently with the settled rules of law. Words are to be construed according to their natural meaning, unless such a construction would either render them senseless, or would be opposed to the general scope and intent of the instrument, or unless there be some very cogent reason of convenience in favor of a different interpretation. (2) Contracts. Construction. A contract between a city and a water company provided that the company should furnish the city with water for its use for the public buildings and many specified purposes, including “fourteen spring drinking fountains of ordinary capacity and one constantly running fountain on Washington Square,” at an agreed price, and that water in addition to what was designated should be allowed at stipulated rates, including among other purposes, “spring fountains of the kind above mentioned at $25 a year each.” 'Said rates were to continue until the price to be paid by the city should be equal to $10,000 a year in all, and then the city was to pay only at said last mentioned rate, and all additional or greater use of the water should be free. “Said fountain on Washington Square shall be of capacity of at least equal to that of the fountain now in operation there. The other fountains shall be located by said city at its pleasure.” The city council passed a resolution authorizing the erection of three fountains similar to that on Washington Square, and for several years the city paid for their use at the rate of $100 a year each, in addition to the sum of $10,000, and after a period of four years during which no payment was made for the fountains, upon claim made therefor by the water company appropriated the amount necessary for the payment of such claim:— Held, that upon the terms of the contract considered with reference to the situation and circumstances of the parties at the time of its execution and in the light of the construction given to it by the conduct of the parties since it went into operation, only one constantly flowing fountain was contemplated by the contract as included under the maximum price of $10,000. (3) Construction of Contracts. In the construction of contracts, general terms are restricted and limited by particular recitals when used in connection with them. {4) Construction of Contracts. Aeis of Parties. Where the construction of an instrument in writing is doubtful, and the parties have given a construction to it by acting upon it in a certain manner, courts will usually adopt and follow the construction of the instrument which has been adopted by the parties.
34 R.I. 491Stanley v. Fireman's Insurance Company (1912)
(1) Fire Insurance Contracts. Reforming Contract. Parol Evidence. Plaintiff alleged that a policy of insurance which was issued in his individual name, was in fact procured for the benefit of himself as administrator and of another person who was heir-at-law of the deceased and that the agent of the defendant who wrote the policy agreed that it should cover such interests. On demurrer:— Held, that to permit the introduction of parol evidence to show such an agreement, would be founding a right of action on a parol variation of a written contract, and would be an attempt to reform a written contract in an action at law. (2) Fire Insurance. Parties to Contract. A policy made in the name of one person cannot protect the interest of another, unless it contains words indicating that it is the intention that the interest, of the other person be covered. (8) Fire Insurance. Parties to Contract. One who is not named in a policy, and whose existence is not even suggeste d therein cannot by parol evidence make himself a party to the contract.
34 R.I. 496Lonsdale Co. v. Cyrus Taft, Town Treas (1912)
(1) Toum Meetings. Business Required to be Transacted. Gen. Laws, 1896, cap. 37, § 8 (now Gen. Laws, 1909, cap. 47, § 8), provides that "The notice to the electors to meet in a town meeting prescribed by law shall be given by the town clerk issuing his warrant, directed to the town sergeant or one of the constables of such town, requiring him to post at least seven days before the day appointed for such meeting, written notifications in three or more public places in the town, of the time when and the place where said meeting is to be holden, and of the business required by law to be transacted therein.” Section 4 of an act, entitled “An act dividing the town of Cumberland into districts for the purpose of voting,” passed at the May session, 1856, provides, “A town meeting shall and may hereafter be held annually at the town house in said town, and notified by the town clerk in the warrant for said meeting on the second Monday of June, for the transaction of such general business of the town as may legally come before said meeting:” — ■ Held, that, as there was no requirement either by general law or special act, that any specified matter of business should be transacted at the annual town meeting of said town, such meeting was not illegal because “the business required by law to be transacted therein” was not stated in the warrant for said meeting and was not contained in the notices to the electors. (2) Taxation. Exemptions. After the adoption of a resolution of a town meeting "Resolved that the town council be and hereby is authorized for the period of one year from and after the passage of this resolution to exempt from taxation for the period not exceeding ten years any manufacturing property that may hereafter be located in said town of X. in consequence of such exemption and the land upon which such property is or may be located,” plaintiff petitioned for an exemption of certain property “for a period not exceeding ten years;” and the petition was granted according to the terms of its prayer:— Held, that a reasonable construction of the vote was that an exemption was granted for a period of ten years. (S) Taxation. Period of Exemption. A vote exempting property from taxation for a period not exceeding ten years, was passed September 6, 1900. September 15, 1910, the property was assessed:— Held, that as no steps were taken until September 17, 1900, to bring the property into existence or to locate it upon land in the town and as until such steps were taken there was nothing upon which the exemption could operate, the period did not begin to run until that date.
34 R.I. 504In Re Quigg (1912)
(1) Bail. Who Authorized to Accept. Habeas Corpus. A justice of any district court has authority under Gen. Laws, 1909, cap. 364, §14 and 15, to permit a recognizance to be given before him to release a person committed under process from the Superior Court to answer to an indictment pending in said court, provided the recognizance cpnforms to the terms of the process under which he was committed, and provided the sureties are accepted by said justice after a suitable examination as to their sufficiency. This authority is not limited by Gen. Laws, 1909, cap. 305, § 30. (£), Habeas Corpus. Bail. A writ of habeas corpus ordering the keeper of the jail to produce the body of a respondent committed under process of the Superior Court to answer to an indictment, pending in said court, before a justice of a district court in order that said respondent might there give recognizance, with sureties which had previously been examined and accepted by said justice, will be denied, where it appears that no proper investigation had been made either before said justice or before the Supreme Court upon petition for said writ, as to the sufficiency of such sureties.
34 R.I. 508George v. Tabor (1912)
(1) Attachment. Garnishment. Attachment by trustee process, being a statutory right, the provisions defining the procedure thereunder, must be strictly construed. (£!) Jurisdiction. District Courts. District courts being courts of inferior jurisdiction,. and existing only by statute, have only such powers as are expressly granted to them by law. (S) Mesne Process. Writs Returnable, Where. Writs of mesne process issued by one district court, cannot be returnable in another district, but must be sued out of the court in which the action shall have been commenced.
34 R.I. 512Gautieri v. Cianciarulo (1912)
(1) Execution Sale. Mortgages. Officers. Where at a sale under execution of personal property, subject to mortgage, the mortgagee bid in the right title and interest of the owner, but refused to pay the amount of the bid in cash, claiming that she was entitled to have the same credited upon the mortgage, the officer properly put up the property again and sold it upon the bid of another party.
34 R.I. 514Dodge v. Lavin (1912)Denied
 {1) Adverse Possession. A claim of title by adverse possession involves a mixed question of law and fact, and the court must determine first whether or not the party claiming title has satisfactorily proven the several acts relied upon by him as showing the exercise of dominion over the land, and then, having found such acts established, whether they are sufficient in law to create a title. {%) Adverse Possession. Exclusive Possession. Where it appeared that the acts of ownership of one claiming title by adverse possession, embraced everything that the nature of the premises would naturally demand and were sufficiently continuous and of such a character as would acquaint the owner had he visited the place that claimant was dealing with it as his own, the passing over the premises of persons for accommodation and without any apparent claim of right, would not affect the claim to exclusive possession on the part of claimant. (8) Adverse Possession. Claim of Title. Where a person through mistake as to the boundary line, takes possession of land belonging to another, believing it to be his own, the holding is adverse and if continued for the requisite period, will give title by adverse possession, (4) Adverse Possession. Extent of Claim. ■ Upon the question of title by adverse possession of a strip of land extending to the water, where claimant had from time to time filled in the shore front and cultivated the grass, considering the character of the land and the purposes for which it was adapted and all o ther circumstances: Held, that claimant not only claimed title to the whole strip, but that her acts assertive of ownership were sufficient to fairly indicate to others that her claim extended to the whole.
34 R.I. 519Pilling v. Benson (1912)
(1) Attorney and Client. Release. Where an attorney who had been retained to prosecute plaintiff’s claim against defendant, arising out of a collision, accepted a retainer from defendant to defend actions brought against him by others, who were also injured in the same collision, and plaintiff who was ignorant of the fact of such retainer, relying largely upon the advice of his attorney, executed a release to defendant, and settled his claim, the release will not be regarded as representing the real consent of plaintiff and will be held to be invalid. (8) Attorney and Client. Release. Where a defendant knew that an attorney was acting for the plaintiff in an action against him, and never having retained him before, immediately thereafter employed him to act in defence of other actions pending against defendant, arising out of the same accident, and shortly afterwards a release was procured from plaintiff; irrespective of the good faith of the defendant, he will not be permitted to retain the advantage of a release procured under such circumstances. (8) Attorney and Client. Release. While the fact that the negotiations leading to the release of plaintiff’s claim, were conducted on the part of defendant through the agent of an insurance company with which defendant had a contract for indemnity, bears upon the question of the good faith of the defendant and of the attorney for plaintiff, it cannot vary the rule arising from the relation of attorney and client under which plaintiff was entitled to a full disclosure of every material fact in the possession of the attorney.
34 R.I. 526Town of East Greenwich v. Gimmons (1912)
:(1) Deeds. School Districts. A deed executed in 1857, acknowledged the receipt of a valuable consideration paid to grantor by the “treasurer of school district No. 2 of the town of East Greenwich,” and conveyed premises to “the inhabitants of district No. 2, their heirs, successors and assigns,” “to be used to set a school-house upon and other convenient buildings for school purposes and for no other purpose,” “to have and to hold to the inhabitants of school district No. 2, for school purposes (so long as it shall be used as such and no longer) to them, their heirs and assigns.” Under Pub. Laws, cap. 1101, passed April 17, 1903, school districts were abolished, and “all title and interest in all of the school-houses, land, furniture and other property which was vested in the several districts shall be vested in the town in which the said districts were located”:— Held, that the conveyance was to the school district as a corporation. Held, further, that upon the abolition of the district its title became vested in the town for school purposes. '(2) Construction. “Inhabitants.” Under the statutes of this State, the word “inhabitants” has always had a corporate rather than an individual significance in relation to municipal subdivisions. (8) School Districts. Abandonment. Owing to the small number of children in a school district, a school was closed and the children sent to another district, under authority of Pub. Laws, January, 1900, cap. 743. The authorities retained the key of the school house and kept the property therein until it was removed by defendant’s grantor. The school authorities had no knowledge of any adverse claim until after an agent of the school committee was sent to make repairs. The building being unlocked, was temporarily secured by the agent, and it was not until later that defendant was found to be in possession, whereupon proceedings were commenced by the town, within a reasonable time, to recover possession, the school committee having voted upon petition filed by residents of the district to open school therein, as soon as arrangements could be made. Held, that there was no such abandonment or cessation of use of the premises for school purposes as would warrant a forfeiture, under the above deed. 14) School Districts. Constitutional Law. Decision in re Application of School Committee of North Smithfield, 26 R. I. 164, as to the constitutionality of cap. 1101 of the Public Laws, passed April 17,1903, transferring the title and interest of abolished school districts to the town, affirmed.
34 R.I. 534In Re Mariano (1912)Petition denied
 (1) Bail. The power of the Superior Court to require additional bail to be given is not restricted to the circumstances named in Gen. Laws, 1909, cap. 298, § 23, providing that'whenever a person convicted of any crime shall file a motion for a new trial or notice of his intentions to prosecute a bill of exceptions, the Superior Court may require him to give additional bail, but the court has inherent authority to require additional bail in cases pending before it whenever in its judgment such additional bail becomes necessary to secure the presence of a respondent before it for trial or sentence, provided it be not excessive in amount. (%) Bail. Where a respondent fails to give additional bail and is committed to jail for such failure, his obligation and that of his sureties upon the original recognizance are discharged.
34 R.I. 538Foxwell v. Sullivan (1912)
(1) Municipal Corporations. Notice of Claim. Within the period limited by statute, plaintiff gave two notices to a town of a. claim for damages, arising out of an accident upon a highway, the first, being defective. In his declaration he set up the-second notice without, referring to the first. Held, that the intention to abandon the first notice was sufficiently evidenced by the fact that he declared only upon the other. Held, further, that while it might.not have been necessary to set up the notice-in the declaration, having set up the second notice, evidence offered relating to the first notice was irrelevant. (&) Notice of Claim Against Town for Injury. Sufficiency of Notice. Errors. In order to invalidate the statutory notice given a town of a claim for damages-arising out of an injury upon a highway, the error must amount to a substantial defect, through which the notice fails to convey to the town the-information required by statute, with reasonable certainty. If the notice-is sufficient, notwithstanding the defect to apprise the officers of the town t with reasonable certainty as to the time, place, etc., of the accident, it is-. valid. Where a notice first described the place of the accident with accuracy, but-continued with an erroneous description of intersecting streets, owing to the confusion of Elm street with Eli street, and it appeared that the facts set out in the notice could not apply to Elm street, but with the other description contained in such notice did apply to Eli street, the notice was sufficient to advise the town with reasonable certainty of the necessary facts.
34 R.I. 543Crafts v. Lizotte (1912)
 {!) Attorneys at Law. Disbarment Proceedings. Whether or not an attorney shall be disciplined rests in the discretion of the court, upon examination of the facts connected with the special complaint against him, and such other facts as may appear during its investigation, and the court is not limited to the precise charges of the complaint, but may act upon any other information which it may properly and regularly acquire. The court is not bound in its action by any particular rule of law, nor is it essential that the basis of discipline should be acts creating civil or criminal liability, but a proper basis for action may be found in conduct evidencing an unfitness for that confidence and trust which necessarily attends the relation of attorney and client or in such lack of honesty and moral character as would render the party under examination unworthy of confidence. Aside from the conduct of an attorney in connection with professional affairs, any conduct demonstrating a moral condition inconsistent with the proper appreciation and discharge of professional duties and obligations may also form a just basis for discipline. {2) Attorneys at Law. Disbarment Proceedings. Upon a complaint against a member of the bar evidence considered and held to warrant disbarment.
34 R.I. 556Hayden v. Hasbrouck (1912)
(!) Libel and Slander. Privileged Communications. A communication made bona fide upon any subject matter in which the party communicating has an interest, or in reference to which he has or honestly believes he has a duty, is privileged, if made to a person having a corresponding interest or duty, although it contains criminatory matter, which, without this privilege would be slanderous and actionable, and this is not confined to legal duties which may be enforced, but includes moral and social duties of imperfect obligation. (8) Libel and Slander. Qualified Privilege. The defendant was the president of a central organization of women’s clubs, and a member of the board of directors of one of the affiliated clubs, of which club the plaintiff was president. The defendant, owing to her position, had been requested to take action in an endeavor to stop the repetition of certain larcenies which had occurred at meetings of the organizations and had commenced an investigation into the facts. The chairman of one of the committees, with the secretary of the club, requested an interview with the defendant for the purpose of discussing the plaintiff’s connection with the larcenies. At this meeting it was charged that the alleged slanderous words were spoken concerning the plaintiff:— Held, that the meeting was upon a matter as to which they all had duties, and the circumstances made it an occasion of qualified or conditional privilege. (S) Libel and Slander. Privileged Communications. Malice. Held, further that none of the statements were volunteered by defendant, but were in reply to questions asked by those who had an interest in the matter, which circumstance alone would render the occasion a privileged one. Held, further, that the interview being a privileged one, defendant could not be held liable for the words spoken, although the same were untrue, and in ordinary circumstances would be actionable unless in uttering them she was moved by malice toward the plaintiff, not malice in law or the absence of legal excuse, but the motive of personal spite or ill will, sometimes called express or actual malice. (4) Libel and Slander. Privileged Communications. Express Malice. Unauthorized communications which are actionable carry with them the inference of malice and a plaintiff without proof can rely upon the presumption of malice which arises from the slanderous nature of the words. But in a privileged communication, the occasion repels the inference of malice, and there arises a presumption of good faith which the plaintiff must satisfactorily rebut. The burden of proving express malice is thrown upon the plaintiff by reason of the privilege in the defendant. {5) Libel and Slander. Privileged Communications. Malice. At an interview which was otherwise privileged, plaintiff claimed that certain statements of defendant were sufficient to support a finding of malicious motive. Defendant, speaking of the rumors affecting plaintiff, said that she had “no positive proof,” and that “as far as I am concerned, I am convinced’ ’:— Held, that such statements were pertinent to the matter, contained no intrinsic evidence of malice and were within the privilege of the occasion. (6) Libel and Slander. Privileged Communications. Malice. At such interview, in.reply to the statement, “What a terrible thing for Mr. X.,” defendant replied, “It is no surprise to him, he has paid her off before”:— Held, that the previous conduct of plaintiff in this regard, having a material bearing upon the weight to be given the rumors then under consideration, was fairly related to the subject of the interview, and there being no evidence it was not honestly made, furnished no evidence of malice in view of the testimony. (7) Libel and Slander. Privileged Communications. Malice. At an interview, which was otherwise privileged, in reply to a statement showing lack of motive for the alleged acts on the part of plaintiff, defendant replied, “why, they are as poor as Job’s turkey.” Plaintiff claimed this: was an irrelevant reflection upon her, showing malice:— Held, that parties in such a situation are not bound to absolutely legal relevancy, and the financial condition of plaintiff being regarded by the party making the statement as material to the discussion, the reply of defendant could not be regarded as entirely immaterial, and not being itself slanderous in the circumstances of the case, was insufficient to show malice. (8) Libel and Slander. Privileged Communications. Malice. The language of privileged communications is not to be subjected to too strict a scrutiny, and merely by the use of adjectives or similes, a communication, otherwise privileged is not rendered malicious. (9) Libel and Slander. Privileged Communications. Malice. Privileged communications which cannot themselves form the basis for an action of slander are not admissible for the purpose of showing malice in other communications.
34 R.I. 567Herbo-Phosa Co. v. Philadelphia Casualty Co. (1912)
(1) Liability Insurance. Loss to Plaintiff. Plaintiff was insured in defendant liability company, the policy being one of indemnity containing the following provision: “No action shall lie against the company, as respects any loss or expense under this policy unless it shall be brought by the assured himself to reimburse him for loss or expense actually sustained and paid in money by him after the trial of the issue.” After judgment had been recovered against plaintiff in a cause of action covered by the policy, the following steps were taken. Plaintiff gave to the X Bank its note for the amount of the judgment debt, and received a cashier’s check for the same amount, payable to it. It then endorsed the check in blank and delivered it to the attorney for the plaintiff in the execution, who received it in satisfaction of the execution. The attorney thereupon, with the consent of his client, deposited the check in the X Bank, and received a certificate of deposit for the same sum, which certificate was then pledged as collateral security for the payment of the note in accordance with an agreement previously made with the bank by said attorney to furnish security for the payment of the note. This note was renewed at its maturity by a similar note. Plaintiff paid the interest in advance on both notes, as well as the witness fees in cash, in the original action, and also gave its note for $300 to its president, who discounted it at a bank and paid the face of the note to plaintiff's attorney in settlement of his bill for services. Payment of the note was guaranteed the bank by said attorney. No agreement existed between any of the parties to these transactions, whereby the payment of the notes should be contingent upon any happening whatever or whereby in any contingency the plaintiff should receive any rebate or credit. Held, that a payment by note instead of cash, if made in good faith, was sufficient, and amounted to a loss to the insured. Held, further, that the notes constituted valid claims against the plaintiff, the agreed facts not disclosing any collusive features which could effect any modification of the liability of the indemnity company.
34 R.I. 581Stimson v. Whitmore (1912)
 (1) Master and Servant. Due Care. “Simple Tools.” Latent Defects. A declaration alleging that a master failed to keep in repair, certain appliances furnished the servant, in that a stool used by the servant to step upon, toppled over, caused by the insecure fastening of the stool to its legs, which connections were concealed from view, and not obvious to the plaintiff without a special inspection, states a cause of action, since the stool, as described in the declaration, cannot be said to be an appliance so simple, that the master was under no duty to inspect or to keep the same in safe condition for use. Upon the facts as alleged, the case is not one where it appears upon the declaration that plaintiff could not have been in the exercise of due care, or that if she had used her senses, she must have known of the danger complained of. (2) Master and Servant. Due Care. “Simple Tools.” Latent Defects. A servant assumes the risk of injury from dangers and defects which are so patent and obvious, that he either knows or in the exercise of ordinary care, should know of their existence, but he is under no primary obligation to investigate for latent defects, and test the fitness and safety of the place, fixtures and appliances provided by the master, but he may rely upon the obligation resting on the master to exercise reasonable care to see that they are fit and safe. (S) Master and Servant. Due Care. “Simple Tools.” Latent Defects. It does not follow that because an appliance is a simple one, the master is therefore relieved of all obligation as to care for its safety for use'by his employes, or that the risk must be presumed to have been assumed by the servant. In any case the relative simplicity of the appliance, and all the circumstances of the case must be taken into consideration. The case may be so plain that but one conclusion can properly be drawn, or it may be such as under the facts disclosed to require its submission to a jury.