Volume 35 — Rhode Island Reports

<p> (1) Practice of Medicine. </p> <p>Upon a complaint charging defendant with the practice of medicine in violation of Gen. Laws, 1909, cap. 193, § 8, it appeared that defendant had caused to be inscribed on his door “Dr. X. Chiropractor;” that he exposed literature designed to give information as to the benefits to be derived from such treatment, resulting in the adjustment and removal of the causes of a large number of specified diseases and claimed to be able to analyze and locate the physical cause of disease, and to be capable of applying the proper remedy therefor.</p> <p>Held, that taking the phrase “practice medicine” in its ordinary acceptation and popular meaning, as related to the art of preventing, curing or alleviating disease, consisting in the discovery of the cause and nature of disease and the administration of remedies or the prescribing of treatment therefor, defendant was within the terms of the statute, as having undertaken by a certain method of treatment to cure or alleviate disease or pain, and exacted compensation for such treatment.</p> <p> (S) Practice of Medicine. Criminal Complaint. </p> <p>Criminal complaint under Gen. Laws, 1909, cap. 193, § ,8:—</p> <p>Held, to sufficiently charge defendant with holding himself out as a practioner of medicine, versed in and willing to practice the art of preventing, curing and alleviating disease and pain for a reward or fee, without the authorization of the State Board of Health.</p> <p> (5) Criminal Complaint. Evidence. </p> <p>The mental attitude of a complainant in making a criminal complaint, for violation of a statute, is immaterial.</p> <p> (4) Practice of Medicine. Evidence. </p> <p>Upon a criminal complaint charging the practice of medicine in violation of the statute, evidence as to the benefits derived from the treatment given by defendant is immaterial and properly excluded.</p> <p>(S') Practice of Medicine. Evidence.</p> <p>Upon a criminal complaint charging the practice of medicine in violation of the statute, evidence offered by the State consisting of books and pamphlets descriptive of the treatment employed by defendant and its advantages, relating to schools and methods referred to by defendant with approval, in his testimony, is admissible.</p> <p> (6) Practice of Medicine. </p> <p>Upon a criminal complaint charging the practice of medicine in violation of the statute, request to charge that if the jury found that a chiropractic was not a practitioner of medicine and surgery, they should find for defendant, was properly refused, since the issue was whether defendant upon the evidence was guilty of practicing medicine without authority.</p>

<p> (.1) Guardians ad litem. Admissions. </p> <p>A guardian ad litem, cannot enter into an agreement stating facts upon which the decision of the court and its decree must be based, but full proof of all facts which do not clearly appear to the court as advantageous to the infant-must be established by proper testimony.</p>

<p>(1) Guardian and Ward. Joint Accounts.</p> <p>A guardian was appointed of two orphan wards who had no other brothers or sisters. He rendered several joint accounts, treating each item of receipt or disbursement as the same for each ward, and the balances as equally in favor of or against each of them. One of the wards deceased and no administration was taken out on her estate, but the last of the joint accounts rendered after her death included as disbursements all the debts arising from her last sickness and stated a balance due the guardian.</p> <p>Held, that without approving this method of accounting, yet as during the period covered by the final account the estates of the wards consisted entirely of real estate and the rents derived therefrom, of which they were tenants in common, and as the deceased ward'left the other as her sole heir at law, he took her interest in any event subject to the payment of her debts and funeral expenses.</p> <p> (%) Decrees of Probate Courts. Guardian and Ward. Judgments. </p> <p>The decree of a probate court approving the account of a guardian, is an ex parte proceeding and may be reopened on the ground of fraud, or manifest or gross mistake. While it furnishes prima facie evidence of the correctness of the account, it does not constitute a judgment in favor of the guardian against the ward.</p> <p> (3) Guardian and Ward. Accounts. Statute of limitations. </p> <p>As a guardian is prohibited from suing the ward during the continuance of such relationship, no right of action can accrue to the guardian against the ward, upon the allowance of an account showing a balance in favor of the guardian, and therefore the statute of limitations cannot begin to run until such time as the guardian is capable of bringing suit.</p> <p>(4) Guardian and Ward. Accounts.</p> <p>Where a ward deceased and the former guardian was appointed administrator, any advances made by the guardian would be a valid claim against the estate, provided they were proper, and where the guardian in good faith rendered a series of accounts in which he showed the annual condition of the estate, with varying amounts either due him or the estate, but did not carry forward the balance from year to year, into the subsequent account; as the court can, from the inspection of the entire series, find the true final balance, it will not require the guardian to render a corrected final account as guardian in the probate court, but will allow such balance as a valid claim against the estate.</p>

<p>(1) Charitable Corporations. Negligence. Master and Servant.</p> <p>The doctrine of qualified immunity of a charitable corporation from liability for damages occasioned by the negligence of servants, in cases where no negligence appears in the selection or retention of the servant, does not properly rest upon grounds of public policy, but can logically be rested in most cases upon the doctrine that the physicians and surgeons in attendance upon patients in hospitals, are not in general the servants of the charity in the true sense of the relation of master and servant, but become and remain the servants of the patient and the full duty of the charity has been performed if it has exercised due care in the selection of competent persons for such service.</p> <p>($) Charitable Corporations. Negligence. Master and Servant, damn v. Rhode Island Hospital, 12 R. I. 411, examined and affirmed and the principles established by it fully stated.</p> <p> (S) Charitable Corporations. Negligence. Master and Servant. </p> <p>A charitable corporation is liable for injuries to third persons caused by the negligence of its servants in the care and management of its horses and teams, while employed for its purposes, even though there has been no lack of care or diligence on its part in the selection or retention of such servants.</p>

<p>(1) Foreign Corporations.</p> <p>Foreign corporations in the exercise of their powers within this State are subject to two limitations; (l)they can only exercise such powers as have been conferred upon them by their charters or by the laws of the state of their creation; (2) as to those powers they can only exercise such of them, as are not repugnant to the laws of this State.</p> <p> ($) Foreign Corporations. Merger. Abatement and Revival. </p> <p>While an action was pending in this State against a foreign insurance company, defendant company merged with another foreign company under a statute of the State of New York, which provided that, “No action pending at the time of the consolidation in which any of the old corporations may be a. party shall abate or discontinue by reason of the merger, but the same may be prosecuted to final judgment in the same, manner as if the merger had not taken place, or the new corporation may be substituted in place of any corporation so merged by order of the court in which the action may be pending.”</p> <p>Held, that within the intent of the statute, the old corporations retained a sufficient existence to enable them to maintain or defend existing suits wherever the same might be pending.</p> <p>Held, further, that it was not necessary that the statute should distinctly refer to suits in other states, in order that then abatement might be avoided, the intention being clear from the general language of the statute.</p> <p> (3) Foreign Corporations. Abatement and Revival. </p> <p>Gen. Laws, 1909, cap. 213, § 9, relative to the continuance of corporations for three years after dissolution, for certain purposes, has no reference to a foreign insurance company doing business in this State, which has been merged under the statutes of a foreign state, since the right to maintain an action unabated against such foreign company cannot come from any legislation in this State, but such right must be found in its charter or in the laws of the state of its creation.</p> <p> (4) Foreign Corporations. </p> <p>While this State may limit and restrict the operations of a foreign corporation in this State, it cannot give additional powers to it.</p> <p> (5) Foreign Corporations. </p> <p>A statute of a foreign state regulating the merger of two foreign corporations by the provisions of which no action pending against the old companies should abate by reason of the merger, but the same might be prosecuted to final judgment or the new corporation substituted in place of the old, by order of the court in which the action might be pending, does not indicate any attempt to legislate with respect to the procedure to be followed by the courts in other states, nor can it be construed as intending to create liabilities and impose them upon persons and property outside of its jurisdiction, but it is more in the nature of an intention to protect those who might have dealings with the companies either in their own or in any foreign state where they had transacted business.</p>

<p>■(1) Town Councils. Highways.</p> <p>'Town councils are vested with full authority in the matter of laying out, altering, repairing and maintaining highways. Execution of this authority may be by committee of the town council or by highway surveyor.</p> <p> (3) Town Councils. Municipal Corporations. State Roads. </p> <p>As a town has express authority under the provisions of General Laws, 1909,, Chapter 84, to contract for the construction of State roads within the limits of the town, where for the purpose of carrying out the work, it needs road machinery, the town council is authorized to fix the rate of compensation; to be paid for the use of such road-making machinery.</p> <p> (3) Municipal Corporations. Implied Contracts. </p> <p>A municipality having general power to contract with reference to the subject-matter of an express contract invalid for some irregularity in the execution thereof, is liable upon an implied contract for any benefit received thereunder, where the form or manner of letting or execution does not violate-any statutory restriction upon the power of such corporation to contract, and it is not otherwise violative of public policy.</p> <p> (4) Municipal Corporations. Implied Contracts. State Roads. </p> <p>Where a town entered into a contract with the State for the construction of a. portion of a State road, which contract was fully performed and the contract price paid by the State to the town, although plaintiff cannot show an express authority on the part of a committee of the town to make an express contract with him for a definite price for the compensation to be paid for the use of road-making machinery belonging to plaintiff, he is entitled to recover upon a quantum valébat a fair compensation for the use of such machinery for such time as the town actually used the same in carrying out the contract- and earning the money which it received.</p>

<p> (1) Writs of Protection. </p> <p>Parties and witnesses attending in good faith any legal tribunal, with or without a writ of protection, are privileged from arrest on civil process during then- attendance and for a reasonable time in going and returning, whether residents or non-residents and whether they attend on summons or voluntarily.</p> <p> (£) Writs of Protection. </p> <p>As a writ of protection amounts only to notice to those threatening a violation of the privilege, the court before whom the witness expects to attend is the proper tribunal to issue the writ.</p> <p>(S) Writs of Protection. Municipal Court.</p> <p>The municipal court of the city of Providence has the power to issue a writ of protection to a witness attending before it or before a commission appointed by it, and an application for such writ should properly be made before that court and not to the Supreme Court.</p>

<p> (1) Criminal Law. Evidence. Embezzlement. </p> <p>Where upon an indictment charging embezzlement of the sum of $600 entrusted to defendant, a banker, to remit to a foreign bank, complainant testified that he directed defendant to send to Rome $600, and there was an entry upon the pass book of complainant made as a part of the transaction of the withdrawal of $600 from his deposit, a receipt given to complainant by defendant at that time, reciting the receipt of $600 from “X., son of (complainant) ” — a mistake for “complainant, son of X., ” was properly admitted in evidence on the part of the State, as a writing delivered as part of the transaction, especially in view of the fact that defendant testified that the receipt was in that form through his mistake.</p> <p> {2) Criminal Law. Evidence. </p> <p>Upon an indictment charging embezzlement of funds entrusted to defendant to remit to a foreign^bank, the State was properly permitted to inquire of the complainant if he knew whether the defendant ever sent the money to the bank.</p> <p> (3) Criminal Law. Evidence. </p> <p>Testimony as to statements made to a third person by the brother of a complainant in an indictment, the brother not being a witness in the case, was properly excluded as hearsay.</p> <p>(4) Request to Charge.</p> <p>The court may properly modify a request to charge, by calling the attention of the jury to the testimony, which should be considered by them in making application of the legal principles contained in the charge.</p> <p> (5) Criminal Law. Embezzlement. </p> <p>Where it appeared upon an indictment charging the embezzlement of $600, that the depositor directed defendant, a banker, to send $600 of the sum on deposit to Rome and defendant entered the withdrawal of $600 upon the pass 'book of the depositor, and gave a receipt to the depositor for this sum and made an entry of the balance of the deposits after this withdrawal, and ■ gave no explanation consistent with good faith as to why he had not forwarded the money or returned it to the depositor, the jury were warranted in finding that defendant separated such sum from the rest of the deposit and held it thereafter as a special deposit for the specific purpose named in the indictment.</p> <p>(6) Banks and Banking. Criminal Law.</p> <p>The ordinary relation of a banker and customer is that of debtor and creditor as to the deposits made by the customer with the banker. This relation may be changed as to the whole or a part of a general deposit. Without actual delivery to the customer and a redeposit by him, for a special purpose, such general deposit by agreement may be converted into a special deposit and become a fund in the hands of the banker with which he is entrusted for the specific purpose named in the agreement creating the special deposit. Such fund is impressed with a trust, the violation of which is a fraud. The use of such fund contrary to the provisions of the trust would amount to a fraudulent conversion and would render him guilty of embezzlement, unless explained as consistent with good faith.</p>

<p>{1) Probate Law. Filing Inventory.</p> <p>Executors without having returned an inventory and appraisal, filed an account charging themselves with various items of personal estate at valuations estimated by themselves, and without showing how such valuations were obtained. Such account was allowed by the probate court and on appeal by the Superior Court.</p> <p>Held, that the filing of an inventory and appraisal in accordance with the statutes, was an essential preliminary to the settlement of an account.</p> <p>Held, further, that no court had the power to dispense with or accept a substitute for the statutory method of obtaining this information.</p> <p> (8) Probate Law. Filing Inventory. </p> <p>Held, further, that Gen. Laws, 1909, cap. 311, § 8, providing that “No order or decree of a probate court which may be appealed from, or in any collateral proceeding when the same shall not have been appealed from, shall be deemed to be invalid, or be quashed for want of proper form, or for want of jurisdiction appearing upon the record, if the probate court had jurisdiction of the subject matter of such order or decree,” had no application to the failure of executors to file an inventory and appraisal of an estate as required by statute.</p>

<p> (1) Leases. Conditions. Covenants. </p> <p>No particular form of expression is essential to the creation of a condition, but if it is manifest from the terms of the instrument that a condition was intended, the estate will become defeated upon a breach thereof, and the same words may create either a covenant or a condition depending upon the intention of the parties as such intention may be determined from the context.</p> <p>A clause only operates as a condition when it is apparent from the whole scope of the instrument that it was intended to operate so, and courts are in each case to ascertain the intent and give the instrument effect accordingly.</p> <p> ($) Leases. Conditions. Forfeiture. </p> <p>An indenture of lease after fixing the annual rent and the time and method of its payment, provided “In case of failure to conform to all the conditions of this lease, the said lessors shall be at liberty to declare this lease at an end and terminated and thereupon to take immediate possession of the premises, etc.” The succeeding paragraphs set forth the several undertakings of the parties regarding the use and care and protection of the premises, including insurance against fire, accident and boiler explosion, in none of such succeeding paragraphs repeating the word “condition,” but characterizing such undertakings as “covenants,” or “agreements.” The provision for insurance was as follows: Certain policies of insurance “shall be assigned and transferred or made payable in case of loss to the said lessors, as their interest may appear and shall be delivered to said lessors by the said lessee and shall at all times remain in the possession of the said lessors and in default of the said lessee keeping and maintaining such insurance, then the said lessors may effect such insurance in manner as aforesaid and the premium or premiums therefor shall be paid by the said lessee.” Lessee entered into possession October 1, 1911, and October 9, 1911, lessors declared the lease terminated for failure to comply with the conditions, relative to the insurance. At the time of the delivery of this notice by lessors, lessee had effected the insurance in accordance with the terms of the lease, but had not delivered the policies to lessors:—</p> <p>Held, that a lease must, if possible, be so construed that a meaning may be given to all its parts.</p> <p>Held, further, that under the clause “or in case of failure to conform to all the conditions of this lease,” the failure of lessee to observe its requirements respecting insurance would work a forfeiture entitling lessors to effect a re-entry.</p> <p>Held, further, that the agreement of lessee to deliver the policies was not a matter so unimportant as to excuse performance.</p> <p>Held, further, that the power given lessors to insure in case of default was merely permissive and had no effect upon their right to declare a forfeiture.</p> <p>Held, further, that lessors were not required to make demand for the policies before declaring a forfeiture.</p> <p>Held, further, that the lease not fixing any time for the delivery of the policies lessee had a reasonable time within which to make delivery.</p> <p>Held, further, that if lessee in the usual course of the insurance business had arranged to have the property covered from October 1, he was entitled to a reasonable time after that date, in which the policies could be properly prepared and delivered by the companies, and such further time as was needed to determine their correctness in form and substance and to see that they were in accordance with the terms of the lease and finally to deliver them to the lessors at their place of business.</p> <p>Held, further, that in view of the facts the court could not say as a matter of law that the time occupied by lessee was unreasonable, but such question, being one of fact depending upon the circumstances surrounding the transaction, should have been submitted to the jury.</p> <p>Held, further, that as the policies were offered to lessors at their place of business during business hours, if such offer was made within a reasonable time lessors were bound to accept them and their refusal to do so was immaterial.</p> <p>(3) Reasonable Time.</p> <p>Reasonable time is so much time as is necessary under the circumstances to do conveniently what the contract or duty requires in the particular case should be done.</p>

<p>(1) Beneficial Associations.</p> <p>Where a member of a lodge has accepted a certificate of membership, reciting that he is entitled to all the benefits provided for by the laws of the order, and of his lodge as they may exist, or may be later amended, subject to his compliance therewith, he cannot occupy the inconsistent position of claiming a sick benefit provided for under such laws and insisting that the laws are in other respects of no validity.</p> <p> (2) Beneficial Associations. </p> <p>A member of a beneficial association who has voluntarily submitted himself ' to the laws of the order in consideration of the benefits to be derived therefrom, must exhaust his remedy provided under such laws before he is entitled to prosecute his claim against the association in a court of law.</p>

<p>(Í) Waters. Basement.</p> <p>A. was the owner of a farm, on which was a spring about 1,000 feet from the house with an abundant supply of water.- A. conveyed two acres of the farm to his son, B., with “the right to take water from my spring for his family use.” By another deed he conveyed two acres to his son, C., with “the right to take water from the spring in my land west of his house, for his family use. ” Later he conveyed to his daughter, the complainant, thirty acres, including the homestead, with its barns, etc. The spring was not on this tract, but the deed gave complainant “also a privilege to take water from the spring on my farm as occasion may require.” Later, A. divided up the remainder of his land — eight acres to complainant, bounding on the thirty-acre tract conveyed to her — twenty-six acres to B., bordering on the thirty-acre tract of complainant’s, and one hundred and forty acres to C., bounding on the land conveyed to complainant and B., reserving a life interest in himself for certain purposes in all land conveyed under this last division. A. had used the spring for domestic and farm purposes, the water being carried in buckets and barrels. For many years complainant lived with A. and supported him and herself by taking summer boarders, and during this time, while A. was the owner of the entire' farm, they used the spring for all domestic and farm purposes. After complainant received the deeds of her portions, A. lived with her in the same manner as before until his death, fourteen years after the conveyance to complainant of the homestead tract. Complainant continued to run the house as a summer boarding house after the death of A. The husband of complainant installed a pumping plant on the eight-acre tract conveyed to complainant, and lying between and adjacent to her thirty-acre tract and C. ’s land, and laid pipe across C.’s land to the spring and from the pump to a tank on complainant’s land, with a branch pipe line to B.’s house. This was done about ten years after the conveyance to complainant and during the-lifetime of A., while he was living with complainant and had a life interest in the land, where the spring was located, and with his approval. C. knew of the large expenditure made by complainant and her husband in this installation. C. ’s land through which the pipe line was laid was worthless for cultivation. Although C. refused to sign a permission for the work he made no objection for seven years, when he took up the pipe:—</p> <p>Held, that considering all of the circumstances surrounding the parties to the deed at the time of and prior to its execution; regarding the general terms of the grant to the complainant; the omission of the words “for family use, ” contained in the grants to the sons; the large tract of land conveyed to complainant and the fact that the father knew complainant was using the property for a summer hotel for their joint benefit, it was fair to assume that he intended to provide not only for the present, but for the future requirements of such business, and intended to give complainant a right commensurate with the interests to be served.</p> <p>Held, further, that there was no limitation in the grant as to the method of taking the water, and under the circumstances of this case, complainant had the right to make use of the pipe line and was not limited to the use of buckets and barrels.</p> <p>Held, further, that in view of the facts as to the use made by the grantor and by complainant with his approval of the water during many years for the hotel, and of grantor’s approval of the installation of the plant, and of the fact that the pipe was laid through unproductive soil of defendant, and " without objection by him for many years, there, was a substantial agreement on the part of all parties concerned that access to the spring by . means of 'the pipe was within the terms of the grant.</p> <p>The grant of water easements carries with them by implication as secondary easements, everything that is beneficially necessary or incident to the grant whether mentioned or not as “privileges,” “appurtenances,” or the like. Of two constructions that will be selected which gives to such appurtenant privileges the more convenient and reasonable mode of enjoyment.</p> <p>Held, further, that so long as complainant erected the pump upon her own land it was immaterial to defendant whether it was erected upon one lot or the other, in the absence of evidence that the water was used upon the eight-acre tract.</p> <p>Held, further, that the grant being to complainant “her heirs and assigns forever,” with habendum to complainant “her heirs and assigns, to their own use and behoof forever, ” it conferred a right which would pass to the grantee’s heirs and assigns.</p>

<p>(1) Certiorari.</p> <p>As certiorari appears to be the only proceeding in which the court can exercise its final revisory jurisdiction upon the questions of law involved in the action of a town council in counting ballots cast at an election upon the question of granting licenses for the sale of intoxicating liquors, the court is not restricted to errors alleged in the petition, but will consider any substantial error, called to its attention and involved in the record.</p> <p> {%) Certiorari. </p> <p>Although the court has jurisdiction upon certiorari, to review questions of law only, whether the marks placed upon a ballot by a voter conform to the statutory requirements for a legal ballot is a question of law rather than of fact and is properly reviewed in certiorari.</p> <p> (8) Elections. Ballots. </p> <p>Under Gen. Laws 1909, cap. 11 § 46„ providing that no voter shall place any mark upon his ballot by which it may afterwards be identified as the one voted by him and that one line crossing another at any angle within the circle or any voting-square or at the right of any name, shall be deemed a valid voting-mark, if a voter places upon his ballot a mark, connected or unconnected with the voting-mark, which appears to have been intentionally made and one which may be a means of identification, the ballot is defective, but, where upon inspection it appears probable that the voter accidentally has made a mark in connection with the cross, not of a kind likely to have been used for the purpose of identification, and its presence is consistent with an honest intention on his part, a reasonable construction of the statute, each case being determined after an examination of the particular mark, requires that the ballot should be considered valid.</p> <p> (4) Elections. Ballots. </p> <p>Under the provisions of this statute, ballots where the voting-mark contained an additional fine, either a faint line connecting the end of one of the fines of the cross with the end of the other fine or a mark such as would be made if the pencil touched the paper in passing from the marking of one line to the other or in an attempt to retrace one of the fines or such as might have been made unintentionally through defective eyesight or unskillful use of the pencil, the probability being that the marks were inadvertently made, the ballots were properly counted.</p> <p> (5) Elections. Ballots. “Y" Marks. </p> <p>Under the provisions of this statute, a ballot where the piarle was made by a line slightly bent crossed by another fine which did not extend to the same length as the first, but both lines clearly crossing one another, is properly counted.</p> <p> (6) Elections. Ballots. </p> <p>Under the provisions of this section, a ballot marked with a cross to the right of the word “No” which was printed in the instructions at the top of the ballot, and also mai’ked with a cross placed upon the word “No,” after the question submitted, and also marked with a cross in the square at the right of the word “No,” was properly rejected as containing distinguishing marks.</p> <p>(7) Elections. Ballots. Distinguishing Marks.</p> <p>A voting mark made with ink amounts to a distinguishing mark and ballots so marked are properly rejected.</p> <p> (8) Elections. Ballots. </p> <p>Under the provisions of this section, a ballot marked with a symbol, which appears to have been made in an unskillful attempt to retrace the two lines of the cross and not to have been intended as a distinguishing mark was properly counted.</p> <p> (9) Elections. Ballots. </p> <p>Under the provisions of this section a ballot marked with a symbol made by drawing four lines crossing each other at a common point and then nearly obliterating the figure with a number of somewhat circular lines, was invalid as containing a distinguishing mark.</p> <p> (10) Elections. Ballots. </p> <p>Under the provisions of this section, a ballot marked by three lines crossing each other at a common point, the symbol being apparently the deliberate intention of the voter, was invalid as containing a distinguishing mark.</p> <p> (11) Elections. Ballots. </p> <p>Where at an election upon the question of granting licenses for the sale of liquor, a ballot blank upon its face was given a voter who wrote the word “yes” upon it, the ballot should have been rejected, since under the provisions of Gen. Laws, 1909, cap. 11, § 46, it is only jn case no ballots printed as required by law are provided that voters may use other ballots and such proper ballots were in fact at the polls and could have been obtained by the voter.</p> <p> (IS) Elections. Ballots. </p> <p>Under the provisions of this section a ballot with a number of lines, drawn close together and having the appearance of one broad line, marked across the word “yes,” and with a cross placed in the square to the right of the word “no,” was invalid as containing a distinguishing mark.</p> <p> (IS) Elections. Intoxicating Liquors. Licenses. </p> <p>Semble: Under the provisions of Gen. Laws, 1909, cap. 123, § 4, where the electors have voted in favor of granting licenses for the sale of intoxicating liquor, licenses shall continue to be granted until at some subsequent election the electors shall vote against the granting of such licenses. Hence, where the vote had been in favor of granting licenses at a prior election and on the following election the vote upon that question was a tie, licenses were properly granted for the ensuing year.</p>

<p>(1) Contracts. Specific Performance.</p> <p>Where in a contract for the sale of land, no time was fixed for performance, and the delivery of the deed and the payment of the purchase price were to be concurrent acts, and neither party tendered performance on his part and demanded performance by the other, from the date of the contract, April 25, 1907, until such action was taken by complainant in the spring of 1909, complainant had not forfeited his rights to demand performance of the .contract by reason of laches.</p> <p> (2) Contracts. Specific Performance. </p> <p>Where, in a contract for the sale of land, time is not essential and tender of the deed and payment are to be concurrent acts, and neither party has tendered performance and demanded performance by the other, neither party is in default, and the contract remains in force until barred by the statute of limitations or until notice is given requiring performance within a specified time or until the situation of the parties has so greatly changed that specific performance would be inequitable.</p>

<p>Bill in Equity.</p>

<p>Writ of Error.</p>

<p>(1) Extraordinary Remedies. Prohibition.</p> <p>As a writ of prohibition issues only where no other remedy is expressly provided, it will not be granted where petitioner has a remedy by appeal.</p> <p> {£) Prohibition. Intoxicating Liquors. Appeal. </p> <p>As Gen. Laws, 1909, cap. 123, § 34, provides for an appeal to the Superior Court in favor of any person aggrieved by the sentence of a district court, in a case of forfeiture of intoxicating liquors, a petition for a writ of prohibition to prevent the justice of a district court from further proceeding in such a case, will be denied.</p>

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

The following opinion was given to the Governor by the justices of the Supreme Court in the matter of the mileage of members of the General Assembly.

<p> (1) Pleading. Trespass on the Case. </p> <p>In its more comprehensive signification, trespass on the case also includes both assumpsit and case, therefore plaintiff might properly maintain an action of trespass on the case for the recovery of unliquidated damages arising through failure of defendant to perform the obligation of a contract.</p> <p> (%) Contracts. </p> <p>In an action against defendant to recover the amount in excess of the contract price of a house, which plaintiff was compelled to pay to complete the work, upon default of the defendant, together with other amounts paid by plaintiff in discharging liens and claims on account of purchases by defendant, while plaintiff might pay such claims as would be collectible through lien proceedings and charge the same to defendant, it was incumbent upon plaintiff to establish the justness of the claims, and he must assume the burden of proving that the claimants were legally entitled to the amounts demanded, and charge of the court that plaintiff might recover the amount paid out in the discharge of liens, without waiting until such liens were established, and for such sums as he paid to parties claiming, or who might be entitled to liens and were in a position to, and had given notice, and could establish their liens, constituted reversible error.</p>

<p>(Í) Evidence. Res Gestes.</p> <p>Evidence as to what a motorman said while he was running up the track, immediately after the accident and the stopping of the car, in reference to the accident to deceased, was properly admissible as part of the res gestee.</p> <p> (2) Principal and Agent. Res Gestes. </p> <p>The declarations or admissions of an agent made while acting within the scope of his authority in regard to the transactions depending at the very time, m’ay be given in evidence against the principal as part of the res gestes; for where the acts of the agent will bind the principal, his representations, declarations and admissions respecting the subject-matter, will also bind him if made at the same time, and constituting a part of the transaction.</p> <p>(3) Evidence.</p> <p>Statement of witness in reply to a question as to what was done with reference to the signalling of the approaching car, that deceased “was standing on my left, and he stepped down to the track to go across the track” was objectionable as attempting to state the intention of deceased, and as irresponsive to the question.</p> <p>(4) Negligence. Evidence.</p> <p>In an action for negligence against a common carrier causing death of intestate, question “Whether or not that light was of the same or of greater candle power than the lights on the cars used around the city,” was objectionable as calling for technical knowledge which witness did not appear to possess, and also was indefinite as to the standard of comparison.</p> <p> (5) Negligence. Evidence. </p> <p>Question “whether or not the light that came from that headlight was stronger and brighter or of less brightness than the lights which are cast from head-fights of the cars used on the city streets,” was objectionable as the standard of comparison was too indefinite, and as the important question was as to the brightness of the headlight on the car which caused the accident, and witness had testified fully as to that fact, the question was immaterial.</p> <p> (6) Negligence. Evidence. </p> <p>In a personal injury action, inquiry to show at what point rounding a curve the motorman could have first seen a person in the center of the west track, was pertinent, and was not open to the objection that it had not been shown by positive testimony that deceased ever stood in the center of the west track, where it appeared that he must have crossed that track at the indicated point before he was struck by the car, and while it was approaching.</p> <p>(7) Negligence. Evidence. Measurements.</p> <p>Objection to the testimony of a civil engineer that his measurements were taken in the day time, while the accident happened after dark, only goes to the weight of the testimony, and not to its admissibility.</p> <p>(S) Negligence. Evidence.</p> <p>In a personal injury action, testimony of a former motorman of defendant carrier, as to the headlight equipment of the cars on the fine where the accident occurred and the distance which such a fight sends its rays, was properly excluded, the questions being too general and not confined to the car involved, and testimony as to the particular headlight on the car having been given by an eyewitness.</p> <p> (9) Hypothetical Questions. </p> <p>Hypothetical questions propounded to an expert witness who had been a motorman on the line where the accident occurred for two years, to show within what distance the car causing the accident could have been stopped at or just north of an indicated point just previous to the accident, was pertinent, where witness was shown to be familiar with the type of car and its equipment, and with the roadbed from actual experience and the questions embraced all the essential elements of the situation.</p> <p> (10) Hypothetical Questions. </p> <p>A hypothetical question which simply asks the opinion of a witness, as to the proper and reasonable manner and speed of approaching a designated point, with an electric car, without inquiring as to the proper method of handling the car with reference to the rules of the company and without mentioning any of the conditions surrounding the accident was too general and indefinite and was properly excluded.</p> <p> (11) Negligence. Evidence. </p> <p>In a personal injury action, question to an expert witness — who had been a motorman on the fine where the accident occurred — as to the rule of the defendant carrier relating to the speed of cars approaching a certain point, he having testified that he knew of such a rule in force for five years prior to the time he left the employ of defendant, which was some two years before the accident, was admissible, subject to the condition that plaintiff should show by other testimony that such rule if pertinent, remained in force covering the period of the accident, but as this offer was not made, the testimony was properly excluded.</p> <p> (13) Negligence. Evidence. Rules. </p> <p>In a personal injury action against a common carrier, testimony of the superintendent of the division on which the accident occurred as to the mies of the company in force at the time of the injury as to the speed at which cars should approach stations, was improperly excluded, when offered by the plaintiff.</p> <p> (13) Negligence. Evidence. Rules of Carrier. </p> <p>Proof of the rules of a defendant carrier, and of the violation thereof, while properly admissible, is not conclusive evidence of negligence, but is to be considered by the jury in connection with the other evidence.</p>

<p>(1) Contracts. Garnishment.</p> <p>A garnishee is not chargeable upon an entire and indivisible contract between him and the defendant, where the contract has not been fully performed by defendant and the service of the writ is made upon the garnishee prior to the time fixed by the contract for payment.</p> <p>(#) Garnishment.</p> <p>Where the court finds that a garnishee was not chargable at the time of service of the writ upon him, the fact that he admitted by an affidavit filed in another-case against the defendant, a few days subsequent to the first service upon him that he had personal estate of the defendant in his hands is immaterial..</p> <p>(S) Garnishment. Service. Misnomer.</p> <p>Quaere: whether service of a writ made upon a garnishee, being actual service upon the person intended, although improperly named in the writ is sufficient.</p>

<p>(1) Appeal and Error. Equity.</p> <p>In an equity appeal, the findings of the trial judge upon the facts are entitled to great weight.</p> <p> (8) Nuisance. </p> <p>Complainants having houses situated in a residential district are entitled to enjoin the operation of drop hammers by a manufacturer, who has erected a factory near their dwellings where such operation constitutes a nuisance, causing great vibration, jarring and noise, and being necessarily injurious in its effect.</p> <p> (S) Nuisance. </p> <p>While one may malee a reasonable use of his property, no use of property is reasonable which results in a nuisance to others.</p> <p> (4) Nuisance. </p> <p>Where the fact that respondent is causing a nuisance is established, the right of complainant to an injunction does not rest in the. discretion of the court, is not affected by any possible detriment to the public, or by the fact that the damage resulting to the respondent would be disproportionate to the damage to complainant from the continuance of the nuisance.</p> <p> (5) Nuisance. </p> <p>Every person is bound to use his property so as not to injure that of another or interfere with the reasonable and proper enjoyment thereof, and the carrying on of a business which through noisome smells or noxious vapors or by causing great and disturbing noises, j arrings or vibrations, affects injuriously property in the vicinity or renders the occupation thereof inconvenient and uncomfortable is a nuisance for which a person whose property is damaged or whose reasonable enjoyment of his estate as a place of residence is impaired or destroyed or whose health is injured, may maintain an action for compensation for the injury, and in such case equity will restrain the continuance of the nuisance by injunction.</p>

<p>(I) Bills and Notes. Insane Persons.</p> <p>Upon the question of the validity of a note filed against an estate of a decedent, request to charge that if decedent was insane at the time he gave the note, yet if the jury should believe that claimant when he received the note did not know or have sufficient reason to know that decedent was then insane, then inasmuch as claimant could not be tendered back such consideration as he furnished for the note he was entitled to recover the amount of the note:—</p> <p>Held, properly refused.</p> <p> (8) Probate Law. Filing Claims Against Estate. </p> <p>Where claimant files in the probate court a claim against an estate "1902> April 1st. To amount of negotiable promissory note made by James Campbell, April 1, 1902, for ten thousand dollars, payable on demand to Elisha J. Campbell or order, $10,000," while this statement precludes the claimant from recovering more than $10,000 upon that item, yet if the evidence of the claim by means of the note turns out to be insufficient by reason of the invalidity of the note due to the insanity of the maker, claimant is not thereby precluded from offering other evidence of such claim to an amount of $10,000 for good and valuable considerations running from him to decedent. To allow claimant to thus recover, is not to allow recovery upon a different claim, from that filed in the probate court.</p>

<p>(1) Evidence.</p> <p>Where the amount of the monthly rental of premises was disputed between landlord and tenant, question as to the rent paid by a former tenant was immaterial.</p> <p>C?) Trespass and Ejectment. Election.</p> <p>"Where a landlord borrowed money from a tenant, which the latter claimed was to be paid him by crediting the monthly rental upon the loan, the bringing of suit by the tenant upon the loan and the attachment of the property of the landlord constituted a repudiation of such agreement and was an election to collect the loan by suit, warranting the landlord in bringing ejectment against the tenant, upon non-payment of the rent.</p>

<p>(1) Dogs.</p> <p>Gen. Laws, 1896, cap. Ill, § 3, (now Gen. Laws, 1909, cap. 135, § 3) providingthat “if any dog shall assault or bite or otherwise injure any person while travelling the highway or out of the enclosure of the owner or keeper of such dog, the owner or keeper shall be hable to the person aggrieved as aforesaid for ah damage sustained, to be recovered in an action of trespass on the case or in an action of trespass, with costs of suit” is broad enough to sustain an action of trespass on the case to recover damages for injuries to plaintiff sustained by being thrown out of his wagon when his horse ran away, when attacked and bitten by defendant’s dog.</p>

<p> {!) Specific Performance. Inadequacy of Price. Auction Sale. </p> <p>Inadequacy of price, alone, is not sufficient to defeat a decree for specific performance.</p> <p> (2) Specific Performance. Memorandum. Statute of Frauds. </p> <p>The day after an auction sale of real estate the auctioneer delivered to the purchaser the following memorandum (omitting the printed description of the premises attached thereto, being part of the printed notice of sale): “July 14, 1911. Sold at public auction to X., land, buildings and all property described in above notice, of G. H. B., price, $9,800.00; credit by check, $980.00; balance due, $8,820.00. To be paid within 20 days on delivery of deed. L. S. Gray, agent and auctioneer”:—</p> <p>Held, that it was a sufficient memorandum under the statute of frauds to bind the owner to a conveyance of the property provided the auctioneer had authority to sign as agent when it was signed and delivered on July 15th.</p> <p>Held, further, that the word “sold” would be interpreted to mean “agrees to sell.”</p> <p>(8) Memorandum. Statute of Frauds.</p> <p>Unimportant variations in the description of premises in a memorandum of sale under the statute of frauds are not fatal.</p> <p> (4) Auctions. Agency. Memorandum, </p> <p>In the sale of real estate a memorandum in writing being necessary to make it binding, the sale which the auctioneer is employed to make is not accomplished until such memorandum is executed.</p> <p> (5) Auctions. Agency. </p> <p>An auctioneer’s authority as to the purchaser ceases as soon as the sale has taken place, but as to the seller it may continue after the sale being determined in each case by the scope and duration of his agency.</p> <p> (6) Auctions. Agency. Memorandum. </p> <p>Where an auctioneer was employed two weeks before a sale and catalogued the personal property, advertised the entire property and made all arrangements and on the day personally conducted the sale and the following day delivered articles of personal property to purchasers and collected the moneys due therefor, he was the agent of the seller upon the day following the sale for the purpose of signing and delivering the memorandum of sale of the real estate to the purchaser thereof.</p> <p>(7) Auctions. Licenses.</p> <p>The fact that the auctioneer conducting the sale of real estate was not a licensed auctioneer of the town where he conducted the sale does not affect its validity.</p>

<p>(1) Constitutional Law. Taking Property Without Compensation.</p> <p>An act of the General Assembly granting permission to a railroad corporation to place a passenger station, which is supported wholly upon private land, other than, that of the plaintiff, over and across a public highway, which act does not in its terms provide for any compensation for parties who suffer damage from such erection, is not obnoxious to Cons. R. I. Art. 1, § 16, as amounting to a taking of private property without compensation, where the act does not deprive parties claiming to have suffered special damages resulting to their particular properties from recovering such damages as they have sustained.</p> <p> •(B) Constitutional Law. Taking Property Without Compensation. </p> <p>An act to be unconstitutional must deprive a party of the right to recover for such damages as he may be found to have sustained and to which he may be entitled.</p>

<p>(1) Elections. Boards of Canvassers.</p> <p>The action of boards of canvassers is judicial in its nature and their action in making up the voting lists is not reviewable in a proceeding to try the title to an office, but by certiorari alone.</p> <p> (3) Elections. Review. Boards of Canvassers. </p> <p>The action of a board of canvassers in placing the names of voters upon the voting list, is no bar to an inquiry by the court in a proceeding to try title to office, as to the qualifications of voters participating in an election.</p> <p>(8) Elections. Voters.</p> <p>In a proceeding to try title to office an illegal voter may be required to testify for whom he voted.</p> <p> (4) Elections. Voters. </p> <p>In a proceeding to try title to office a supervisor aiding an illegal voter may be required to testify for whom such voter cast his ballot, notwithstanding the prohibition of the statute, Gen. Laws, 1909, cap. 11, § 45, since “voter” in such case means legal voter.</p> <p> (5) Elections. Evidence. </p> <p>In a proceeding to try title to office, evidence offered by one claimed to be an illegal voter that he had been told by friends that his father was a voter, is hearsay and insufficient to establish the fact that the father was a voter and thus raise the presumption that he was a legal voter.</p>

<p>(.1) Habeas Corpus. Indictments. Bail. Trial.</p> <p>Cap. 354, § 17, Gen. Laws, 1909, providing that every person who shall be indicted for certain crimes (including murder) and shall be imprisoned under the indictment shall be tried or bailed within six months next after the time at which he shall plead to such indictment, if he demand a trial, unless it shall appear to the court that some material witness in behalf of the State has been enticed away or is prevented from attending court by some unavoidable accident, requires that a defendant who has not been bailed and who has demanded a trial, must be discharged from imprisonment, after the expiration of the period of six months within which a trial should ■ ' be had, unless some witness in behalf of the State has been enticed away or prevented from attending court by unavoidable accident.</p> <p> {2) Habeas Corpus. Indictments. Trial. Demand. </p> <p>Where a defendant committed to jail without bail in a capital case, more than seven weeks prior to the expiration of a period of six months following his plea to the indictment, protested against the vacating of an assignment of the case for trial and moved for a reassignment of the case, such action upon his part constituted a sufficient demand under Gen. Laws, 1909, cap. 354, § 17, for a trial and gave the State a sufficient time within which to place the defendant on trial within such period of six months.</p> <p>Parkhurst and Sweetland, JJ., dissenting.</p>

<p> (1) Equity. Appeals. Partition. </p> <p>In a bill in equity for partition, a decree ordering partition between the parties according to their respective rights and interests as set forth in the bill and appointing a commissioner to sell the real estate and to pay the purchase money into the registry of the court to await the further order of the Superior Court, is an interlocutory decree.</p> <p> (3) Equity. Appeals. Partition. Final and Interlocutory Decrees. </p> <p>A decree for partition directing the sale of the property and the payment of the purchase money into the registry of the court cannot be a final decree,, where the interest of one of the respondents is a life interest and further action will be necessary to determine the value of such interest and the manner of the distribution of the proceeds of the sale.</p> <p> (3) Equity. Appeals. Partition. </p> <p>From an interlocutory decree authorizing the sale of real estate an appeal is. permitted by Section 34 of Chapter 289, General Laws, 1909, if taken “at, any time within ten days from the entry thereof/’ and General Laws, 1909,. Chapter 289, Section 25, providing that on an appeal from a final decree in. any cause in which the Superior Court shall have ordered the sale of real, estate for the purposes of partition or shall have ordered the sale of any property, real or personal, such appeal shall in no way affect' the decree, does not operate to make all decrees of this character final decrees and subject to the rules regulating appeals from final decrees.</p>

<p>(I) Habeas Corpus. Indictments. Bail. Trial.</p> <p>Under Gen. Laws, 1909, cap. 354, § 17, providing that every person who shall' be indicted for certain crimes (including murder) “shall be tried or bailed within six months next after the time at which he shall plead to such indictment, if he demand a trial,” a demand for a trial includes a demand for bail, in case there is no trial within six months from the time of the plea to the indictment, and where a proper demand for a trial has been made, it is the duty of the court to see that a defendant is brought to trial within six months or that he is admitted to bail within that period in case a trial must be deferred for reasons other than those specified in the statute.</p> <p> (8) Habeas Corpus. Indictments. Trial. </p> <p>A defendant discharged from custody, by reason of the provisions of Gen-Laws, 1909, cap 354, § 17, is not thereby released from the consequences of the crime of which he is accused, but is discharged from restraint only,, although he cannot be tried under the indictment upon which he was committed nor can he be required to give his personal recognizance as a precedent condition to his liberty.</p> <p>Parkhurst and Sweetland, JJ., dissenting.</p>

<p>(1) Actions. Survival.</p> <p>As an action ex delicto does not survive at common law, it can only survive by virtue of Gen. Laws, 1909, cap. 283, § 7, “In addition to the causes of action and actions which at common law survive the death of the plaintiff or defendant therein, the following causes of action or actions shall also survive — Third. Causes of action and actions of trespass and trespass on the case for damages to the person or to real and personal property. ”</p> <p> ‘(2) Actions. Survival. Conspiracy. </p> <p>The test as to whether an action of the case for conspiracy survives is whether a case is stated which brings it within the provisions of sec. 7 of cap. 283 of Gen. Laws, 1909.</p> <p>(S) Conspiracy. Actions. Damages.</p> <p>The gist of the civil action for damages suffered by reason of conspiracy is the actual damage sustained by the plaintiff and not the confederating together.</p> <p> •(4) Damages to the Person. </p> <p>Damages “to the person,” under Gen.Laws, 1909, cap. 283, § 7, embraces bodily or physical injury directly resulting from the wrongful act, but does not extend to torts affecting only the feelings and reputation.</p> <p> <(5) Survival. Actions. Conspiracy. </p> <p>An action of conspiracy where the declaration alleges that in pursuance of a conspiracy to injure the plaintiff, certain defendants procured the execution of a deed of the real estate of the incorporated society of which plaintiff was a member, whereby the society conveyed all of its land, buildings and personal property for the purpose of depriving plaintiff of her rights therein, states no cause of action which survives as against the personal representative' of a defendant, because plaintiff had no assignable property interest so long as the society continued its active existence, but merely a right to share according to its rules in such assets as remained in liquidation after the payment of its indebtedness, and whether this right is of such a nature as to be entitled to be called “personal estate” the court does not decide, in the absence of any specific allegation in the ■declaration that the society was possessed of property at the time of the surrender of its charter of such an amount as to afford any surplus for distribution, or if so, that plaintiff was entitled to share therein, .and therefore, the declaration does not sufficiently aver that plaintiff possessed personal estate which was injured by the alleged acts of the -defendant.</p> <p>An allegation of the deprivation of the benefits belonging to plaintiff through her membership in the society, it not being alleged that such benefits were property or estate, was insufficient as was also the statement as to “great pecuniary and other losses,” in the enumeration of damages.</p> <p> {6) Actions. Survival. Damages. </p> <p>Semble: In a tort action the fact that different rules of damages would apply to the living defendants and to the representative of a deceased defendant, would not prevent the survivability of an action against the estate of a deceased defendant.</p> <p>(7) Damages. Judgments.</p> <p>Semble: In an action of tort the damages are not divisible; there can be but one verdict and for one amount against all found guilty, and a plaintiff should have judgment against all for the largest amount found against any one of them, but a plaintiff in the same judgment cannot get compensatory damages against some, and punitive damages against the others.</p>

<p> (1) Decrees Pro Confesso. Appeal and Error. </p> <p>A decree pro confesso is not a final decree.</p> <p>An appeal will not lie from a decree pro confesso.</p>

<p>i(l) Common Carriers. Negligence. Evidence.</p> <p>In an action for personal injury against'a common carrier. Q. “Do you know the length of the Pawtuxet cars, which have eleven seats; have you measured that?” was rightly excluded, as it did not appear that witness had measured the car in question, nor that all eleven seat cars in use at the time of the trial were of the same length as the car in use at the time of the accident, and plaintiff had had an opportunity to get the length of the car on which the accident happened.</p> <p> '(%) Common Carriers. Negligence. Declarations. Evidence. </p> <p>In an action for personal injury, plaintiff alleged that the accident was caused by the sudden starting of the car either (in one count) from a standstill or (in a second count) as it was about to come to a stop on signal from the conductor and as she was getting ready to alight. The evidence for plaintiff showed the car had come to a stop and evidence for the defendant showed that it was moving slowly at the time:</p> <p>Held, that as the jury might have believed the .evidence of plaintiff showing due care on her part in preparing to alight and that she was thrown by the sudden starting of the car after the signal to stop, although they might not have believed that the car had come to a full stop, it was error to have excluded the second count from the consideration of the jury. i(3) Common Carriers. Contributory Negligence.</p> <p>In a personal injury action charge of the court that a woman 64 years of age, in alighting from a moving car was guilty of contributory negligence was error, since the evidence thereon being conflicting the question should have been left to the jury.</p> <p>Vincent and Baker, JJ., dissenting.</p>

<p> '(1) Replevin. </p> <p>A writ of replevin was returnable to a district court, August 28, and plaintiff claimed jury trial on the return day. Prior to the return day defendant moved for further bond and surety, and a further bond was ordered to be furnished on or before August 30. September 19, the action was dismissed for non-compliance with the order. On a writ of error the orders of the ■district court were vacated and the case reinstated. Defendant then moved for a further bond and it was ordered in the sum of $400. On writ of error:—</p> <p>Held, that jury trial having been claimed the court was without jurisdiction to entertain the motion, but should certify the case to the Superior Court, without prejudice to the right of defendant to renew such motion in that •court.</p>

<p>Criminal Appeal.</p>

<p> (1) Nuisances. Town Cow-cils. Statute of Construction. </p> <p>Sections 1 and 2, cap. 107, Gen. Laws, 1909, providing that town councils may order the removal of nuisances are applicable to cities, under the provisions of the statute of construction, cap. 32, § 8.</p> <p> (8) Nuisances. Criminal Complaint. </p> <p>Gen. Laws, 1909, cap. 107, § 1, providing that any person who neglects toábate a nuisance “shall he fined not exceeding twenty dollars for every day during which he knowingly permits such nuisance” to continue, contemplates a criminal complaint, for a misdemeanor and not a civil procedure-through an action of debt.</p> <p> (8) Criminal Complaint. Nuisances. </p> <p>Upon a criminal complaint brought for the maintenance of a nuisance on the-premises of defendant, under Gen Laws, 1909, cap. 107, for the space of' twenty-one days from and after the expiration of twenty-four hours after the service of a notice to abate it, motions of defendant to require the-state to elect one particular day on which the offence charged was committed and to confine its evidence to that day, were properly denied, since the statute contemplates punishment for each day that the notice to abate-was disregarded.</p> <p> (4) Nuisances. </p> <p>Upon a complaint charging the maintenance of a nuisance for twenty-one-days after the expiration of twenty-four hours after the service of a notice to abate it, where the notice to abate was served October 23, and the evidence showed that the nuisance existed in September and continued and was as bad as ever November 16, the warrant being issued November 15,. in view of such evidence and the nature of the offence charged, the fact, that there were certain intervening days on which no one testified that he-saw the nuisance, is immaterial.</p> <p>(5) Nuisance. Service of Notice.</p> <p>Where Gen. Laws, cap 107, § 2, provides that the notice of the Board of' Aldermen to abate may be served “by leaving a copy of the order personally with” the owner, if such personal service is made it is immaterial1 where it was served</p> <p> (6) Nuisance. </p> <p>Under the provisions of Gen. Laws, 1909, cap. 107, § 1, authorizing the board of aldermen to “order the owner or occupant to remove any nuisance”' it is discretionary with the proper authorities to order either the owner or occupant to abate the nuisance.</p> <p>■(7) Frivolous Exceptions.</p> <p>While it is the duty of counsel to protect the interests of clients properly it is equally their duty to refrain from raising frivolous exceptions.</p>

<p>(1) Disallowance of Claims. Newly Discovered Evidence.</p> <p>Where a claim against a decedent has been properly filed within the statutory period of six months and not disallowed within thirty days thereafter, the only basis then remaining for disallowance is newly discovered evidence, but evidence which is of no legal value and would be inadmissible in court is insufficient as a ground for such disallowance.</p>

<p>(1) Insurance.</p> <p>In an action to recover premiums paid to an insurance company by plaintiff under the belief that she was the beneficiary in a policy on the life of another, evidence considered and held; — insufficient to show that the policies were not binding contracts and were invalid on the ground that they were never delivered to the insured, but were in fact delivered to the plaintiff, who had no insurable interest and who was deceived by an insurance broker into the belief that they were written for her benefit and that she was named as a beneficiary therein</p> <p>(4?) Insurance. Payment of Premiums.</p> <p>Where a policy was issued upon the application of the insured and was valid upon its face and the premiums had been paid regularly after notices sent and delivered to the insured and the policy was presented for payment by the administrator of the insured, statement made to the company by plaintiff’s attorney, that plaintiff had paid the premiums and claimed that they should be repaid, and that the whole matter was a fraud and that an insurance broker had gotten the money away from plaintiff, was insufficient to charge the company with any notice of the invalidity of the contract of insurance, and the company was justified in treating the policy as a valid obligation and in leaving the plaintiff to deal with those who had defrauded her or for whose benefit she had advanced her money.</p> <p>(8) Insurance. Principal and Agent.</p> <p>One who is not the agent of an insurance company cannot make himself such by his own act.</p> <p> (4) Insurance. Principal and Agent. </p> <p>Where on an application for insurance under the caption “General or District Agents’ statement,” the name appears as having signed the same, “Signature of agent, A. Brophy,” and on the proof of loss the administrator answered-that he made the last premium payment to “Brophy agent,” the defendant company cannot be held by these statements to have either made, accepted or held him out as their agent so as to be affected with notice of fraud practiced by him upon plaintiff, but the statements are consistent with the fact that Brophy was an insurance broker with only such limited functions as pertain to that business.</p>

<p>(1) Brokers. Evidence. Books.</p> <p>In an action to recover a broker’s commission, a loose-leaf “For Sale” book, in which plaintiff in the presence of defendant noted the various particulars given him by defendant relative to the sale of the property, was admissible as a memorandum in the regular course of business, in confirmation of plaintiff’s testimony.</p> <p> (8) Brokers. Evidence. </p> <p>In an action to recover a broker’s commission, upon the issue as to whether the efforts of plaintiff led to the sale, evidence offered by defendant that he had been assisted in the sale by a third person and had paid the latter for his services was immaterial.</p> <p> {$) Brokers. Sales. </p> <p>If a sale is brought about by the efforts or negotiations of a broker, or where he has produced a purchaser who is able and willing to purchase on terms satisfactory to the seller, he is entitled to his commission, even though the sale may be finally consummated through the instrumentality of another person.</p> <p> (4) Brokers. Sales. </p> <p>Where a broker has called the attention of the purchaser to the property, has-, had interviews with him and has inspected the property with him, and such, efforts have been followed almost immediately by the purchase of the-property, it is not necessary to entitle the broker to his commission, that he should in his testimony exclude all other influences, since it must be-presumed that the sale resulted from his efforts.</p>

<p>(1) Probate Law. Appeals. 11 Persons Aggrieved."</p> <p>In a petition for the appointment, of a guardian of a person of full age, an expectant heir of the ward is not a person aggrieved by the decree so as to entitle her to appeal therefrom.</p> <p>(3) Probate Law. Appeal and Error. “Persons Aggrieved.”</p> <p>After a decree appointing a guardian of a person of full age, an appeal was taken and dismissed on its merits in the Superior Court and appellant filed a bill of exceptions and appellee filed a motion to dismiss the bill on the ground that it appeared that appellant was not a person aggrieved under the provisions of Gen. Laws, 1909, cap. 311, § 1.</p> <p>In the Superior Court appellee while urging upon the court the fact that appellant had no standing as an aggrieved person did not formally move to dismiss the appeal on that ground:</p> <p>Held, that there was no waiver or estoppel on the part of appellee preventing the pressing of the motion to dismiss in this court:</p> <p>Held, further, that appellant not being within the class entitled by statute to appeal, and the motion having been filed within the proper time, the exceptions would be dismissed.</p>

<p>(J) Adverse Possession.</p> <p>In an action of trespass and ejectment it appeared that the locus m quo was three lots used in connection with a hotel and all owned by X, the father of plaintiff. In 1896, X. conveyed the locus to his wife, who in 1902, conveyed it to the plaintiff, who at the same time executed to her a lease of the premises for life. This lease was not recorded, and plaintiff did not record his deed until 1910, after the death of his mother.</p> <p>The defendants, also sons of X., acted as assistants to him until 1897, when he turned the management over to them, and they had charge thereof under a salary until his death in 1904, using the locus in connection with their operation of the hotel. In 1905, the X. Co. was organized and took over the business, defendants acting as managers and allowing the company to use the locus. Defendants knew in 1897 that then mother owned the locus:</p> <p>Held, that, the original entry of the defendants was in a representative capacity, and as such was lawful. As the employees of their father and later of the company, they had used the land in connection with the operation of the hotel, and consequently no disseizin or ouster of the true owners had been effected on which a claim of adverse possession could be based, their occupation being at all times consistent with the true owner’s title.</p>

<p> '(1) Exceptions. </p> <p>Where it appeared from the jacket of a case that just before the case was placed on trial, a motion to strike out a plea was heard and granted, and from the transcript that the exception to this action was noted on the following day, while the case was on trial, it does not appear that the exception was not in fact taken immediately as provided by Gen. Laws, cap. 298, § 10, and as no objection was made at the time to its being noted, ■and as the truth of the exceptions was afterwards established by consent, this exception being stated in the bill, it is to be presumed that it was taken immediately and was so understood by the parties and the court.</p> <p>'(£) Pleading. Filing Addition Pleas. Set-off.</p> <p>Where a defendant is granted leave to file further pleas he is under such order entitled to file a plea in set-off provided a statement of demands accompanied the plea.</p> <p>(3) Work and Labor. Evidence.</p> <p>Opon the issue whether the work was done as day work or under an oral contract for a specific sum, defendant was entitled to inquire in cross ex-animation as a foundation for Ms own testimony, whether plaintiff took away material wMch would have belonged to defendant if plaintiff had been working by the day, and its exclusion, was error.</p> <p> (4) Work and Labor. Evidence. </p> <p>In an action by a contractor for work and labor “ Q. In your business as a contracting plumber and steam fitter is it customary to enter into contracts by accepting bids?” was properly excluded as immaterial.</p>

<p>(I) Conflict of Laws. Negligence. Employers' Liability Acts.</p> <p>The law of the place where the injury was received determines whether a right of action exists, and if the lex loci gives a" right of action comity permits it to be prosecuted in another jurisdiction, but if under the lex loci no right of action exists, then it cannot be prosecuted in any jurisdiction, and this is true, although the act or omission to act might have been actionable if occurring in the jurisdiction of the forum,</p> <p> (@) Conflict of Laws. Negligence. Employers’ Liability Acts. </p> <p>Where an accident occurred in a foreign jurisdiction, under whose laws plaintiff waived his right to bring a common law action to recover by failing to give notice in writing to his employer at the time of the hiring that he claimed his right to bring such action, plaintiff cannot bring in this State an action at common law to recover for the injury.</p>

<p>(1) Contracts. Accord and Satisfaction.</p> <p>In an action to recover certain payments due for the sale of plaintiff’s interest in a lease of oil lands, submitted to the jury on a plea of accord and satisfaction, setting up a later agreement between the parties as a bar to the action, evidence considered and:—</p> <p>Held, that it was insufficient to sustain the plea and motion of plaintiff for new trial should have been granted.</p> <p>Baker, J., dissenting.</p>

<p>(1) Wills. Construction.</p> <p>A will should be so construed as to avoid partial intestacy if such construction is natural and reasonable and the intent of the testator appearing from the will taken as a whole, rather than any particular technical word or phrase, should govern.</p> <p> (%) Wills. Construction. “Savings Banks.” </p> <p>A holographic will, by which testator bequeathed and devised specifically all of his property and which contained no residuary clause, after enumerating all of his real and personal property, bequeathed to his wife “one-fifth part of the money in Business Bank Account” and also “one-half of all money I have in Saving Banks”: — ■</p> <p>Held, that the term “Saving Banks, ” included not only money in savings banks thus entitled, but also money on deposit in the participation accounts of trust companies having savings departments.</p> <p>Held, further, that the bequest was not affected by the fact that negotiable and contingent certificates had been issued by a trust company in exchange for the deposit of testator on participation account, upon the reorganization of the trust company, the maimer in which the deposit was evidenced being immaterial.</p>

<p>Bill in Equity to set aside an award.</p>

<p> (1) Intoxicating Liquors. Licenses. Review. </p> <p>Under the provisions of Gen. Laws, 1909, cap. 123, § 2, “The town councils of the several towns and the boards of commissioners as hereinafter provided may grant or refuse to grant licenses to such citizens resident within this-State for the manufacture or sale of pure, spirituous and intoxicating liquors within the limits of such town or city, as they may deem proper,” after the town council has determined whether the precedent requirements of the statute have been complied with, and whether any legal objection has been made, which determinations are judicial in their nature, and reviewable, then the granting or refusing of a license is a matter of discretion with the town council, which is not subject to review.</p> <p> (2) Mandamus. </p> <p>Mandamus will not lie unless the applicant has a specific legal right with no-specific legal remedy for a deprivation of that right.</p> <p>(§) Intoxicating Liquors. Licenses. Mandamus.</p> <p>Where the granting or refusal of a license is discretionary with the licensing-board, the only specific legal right which an applicant eligible for a license has, is to have his application acted upon.</p> <p> (4) Licenses. Mandamus. </p> <p>Where a licensing board having discretion in the granting of licenses, has given a petitioner “leave to withdraw” and petitioner has in express terms refused to exercise such leave and has demanded definite action upon his petition, the board can be compelled to take such definite action by either granting or’ refusing it.</p> <p> (5) Mandamus. Discretion. </p> <p>Where a licensing board has discretion in the granting of licenses, a petition for mandamus which sets out that the board has neglected and refused to grant a petition and prays that the board be ordered to grant it, will be denied, since the court cannot control the discretion of the board.</p> <p>(6) Mandamus. Misconduct of Licensing Board.</p> <p>A charge that a licensing board unlawfully discriminated against a petitioner owing to improper influence cannot be considered in a petition for mandamus, but petitioner may seek his remedy by action against the individual members for malversation in their discharge of duty.</p>

<p>■(1) Accident, Mistake and Unforeseen Cause.</p> <p>"Wh.at constitutes “accident, mistake or unforeseen cause” under Gen. Laws, 1909, cap. 297, § 3, authorizing the filing of an appeal, is a question of law, and an allegation in a petition that petitioner “by accident, mistake and unforeseen cause failed to claim an appeal” cannot be received as evidence of such without a statement of facts constituting it.</p> <p> (£) Appeal and Error. Accident, Mistake and Unforeseen Cause. </p> <p>Where on the last day for claiming an appeal, the attorney for appellant called up the city clerk on the telephone, and told him it was the last day to claim the appeal and asked if it would be properly filed if sent by mail or if he should send it by messenger, and was advised by the clerk that if it was then mailed it would be filed in time, statement by the clerk that the appeal did not reach him on that day, but whether due to delay in the mail or from whatever cause he could not say, cannot be considered as evidence of accident, mistake or unforeseen cause, but as showing either a mistake of law or an instance of negligence, not entitling petitioner to relief.</p> <p>(S) Appeal and Error. Accident, Mistake and Unforeseen Cause.</p> <p>The existence of accident, mistake or unforeseen cause is under Gen. Laws, 1909, cap. 297, § 3, a condition precedent to relief and in the absence of such reasons, the merits of the case are not open for consideration.</p>

<p> (1) Divorce. Evidence. </p> <p>The degree and character of proof required to sustain a petition for divorce from bed and board is in no respect different from that required to uphold a petition for an absolute divorce.</p>

<p>(I) Equity. Appeal and Error. Final Decrees. Partition.</p> <p>A decree in a bill for partition which finds that the parties are entitled to partition of the premises; names a commissioner to sell the premises under specific directions as to the conduct of the sale and directs the commissioner to distribute the proceeds among the parties in accordance with the interests as determined by the decree, is a final decree terminating the litigation on the merits of the cause requiring no further action on the part of the Superior Court except to fix the compensation of the commissioner and to approve his report, and hence is subject to appeal as from a final decree.</p> <p> {%) Equity. Appeal and Error. Final and Interlocutory Decrees. </p> <p>Gen. Laws, 1909, cap. 289, § 34, providing that whenever in the Superior Court a sale of real or personal property is ordered by an interlocutory decree an appeal may be taken at any time within ten days from its entry, does not contemplate that when an order for the sale of property is contained in a decree which in other respects is a final decree, that the presence of such order will make the decree interlocutory.</p>

<p>(1) Probate Law. Accident and Mistake.</p> <p>X. deceased leaving a widow and a brother Y. his sole heir at law. His will was duly allowed. Y. died some four months after the end of the period within which a person aggrieved might have appealed from the decree approving the will of X.</p> <p>Petitioner as the executor and one of the heirs at law of Y., filed a petition for relief under Gen. Laws, 1909, cap. 297, § 3, alleging that as such heir and executor he was aggrieved by the decree admitting the will of X. to probate and that by accident and mistake he failed to appeal within the time prescribed by law:—</p> <p>Held, that petitioner, as an heir at law of Y., was without standing, since the relief was given solely to persons aggrieved and Y. was the only person who was during the period within which an appeal might have been claimed, aggrieved by the entry of the decree, and the right to invoke the aid of the statute did not pass to the heirs of Y.:—</p> <p>Held, further, that petitioner was not entitled to relief as executor of Y. since the right to relief does not pass to the executor or administrator of one whose interest may be affected by the decree of a probate court.</p>

<p> {1) Probate Law. Claim of Administrator Against Estate. Notice. </p> <p>A probate court is not required to give notice to parties interested of a claim filed by an executor or administrator against the estate under Gen. Laws, 1909, cap. 314, § 10, before determining it, but it may in its discretion order notice to be so given.</p> <p> (2) Insane Persons. Accident and Mistake. Probate Law. </p> <p>A person of unsound mind at the time of the entry of and during the time within which an appeal might have been taken from a decree by a probate court in an estate in which he is a party interested, does not have the notice and knowledge of the proceedings imputed to a person of full legal capacity, and that condition of disability presents such a situation of accident, mistake or unforeseen cause as would warrant relief under Gen. Laws, 1909, cap. 297, § 3, if it appears that justice requires a revision of the cause, but a petition filed by his next friend asking such relief should specifically aver that he was of unsound mind during the period within which an appeal might have been claimed.</p> <p> (8) Insane Persons. Accident and Mistake. Probate Law. </p> <p>A petition filed for relief under Gen. Laws, 1909, cap. 297, § 3, from a decree of a probate court on behalf of a party in interest who was of unsound mind during the period within which the claim of appeal should have been made does not depend upon the fact that the decree was procured by fraud or that all the provisions of law were not duly complied with.</p>

<p>(1) Bills and Notes. Notice of Dishonor. Place of Business.</p> <p>A promissory note of a corporation was executed in the city of X. and endorsed individually by the treasurer who resided in the city of Y. and was the city clerk of Y., having an office in that city. All of the renewals of the original note had been made at the office of the company in X. The treasurer visited this office from time to time in the transaction of the company’s business, and private letters were addressed to him there, some of which he received at such times as he was present at that office. His name appeared in the directory of X. as having a place of business at the office of the company.</p> <p>Held, that the endorser had a place of business at the office of the company in X. and a notice of dishonor addressed to him there was a compliance with the statute, Gen. Laws, 1909, cap. 200, § 114.</p>

<p> (1) Motor Boats. Statutes. </p> <p>Pub. Laws, R. 1.1910, cap. 693, requiring that no boat operated in whole or in part by gas, gasoline, naphtha or other explosive material shall be used upon the public waters, unless its engine is provided with a sound muffling device, and providing a penalty for the operation of a boat in violation of its provisions, is not void for vagueness or uncertainty, but the statute is violated if in the operation of the boat the engine is permitted to exhaust into the open air and not through the muffler, although the engine is in fact provided with a muffler as required by the statute.</p> <p> (2) Construction of Penal Statutes. </p> <p>Although a penal statute should be strictly construed, the court cannot so construe it as to deprive it of all force and meaning unless it is in fact meaning less.</p> <p>(3) Construction of Statutes.</p> <p>In ascertaining the legislative intent the court must consider not only the occasion and necessity for the law’s enactment, but also have reference to the object intended to be accomplished, and they will never, if avoidable, adopt a construction which will lead to an absurdity or make it ineffective, and this applies to the interpretation of penal laws.</p>

<p>Bill for construction of will.</p>

<p>(I) Negligence. Evidence. Damages.</p> <p>In a personal injury action against a common carrier, the plaintiff cannot show as an element of damage the amount of money loaned her by her husband for medicine, medical attendance and expenses incident to the sickness, since the husband is liable in law for all such expenses, and the wife is under no legal obligation to repay such money and cannot recover it from defendant.</p> <p> ($) Negligence. Evidence. </p> <p>In a personal injury action against a common carrier, defendant may show that during the period in which plaintiff claimed to be very ill and in a serious nervous condition, the noise in her tenement was such that witness protested against it.</p> <p>(8) Negligence. Evidence.</p> <p>In a personal injury action against a common carrier, evidence that during the period that plaintiff claimed she was confined to the house as a result of the injury, bundles which looked hice millinery bundles were taken to and from her house, was properly excluded since, although plaintiff was a milliner, the evidence would not lead reasonably to the conclusion that she was in fact attending to her business.</p> <p>' (4) Negligence. Evidence.</p> <p>In a personal injury action against a common carrier, where a claim agent of defendant had testified that he visited plaintiff, informed her of his identity and purpose and that she said she was not hurt in the collision, question if plaintiff made a statement as to whether or not she would make a claim was improperly excluded.</p> <p>(.5) Evidence. Surprise.</p> <p>Where counsel is surprised by the answer of his own witness the trial court may in its discretion permit him to inquire whether at a previous trial witness had not made statements inconsistent with his present testimony. The extent to which counsel may go is entirely within the discretion of the court, and unless there has been an abuse of such discretion, the refusal of the court to permit such question to be asked is not subject to exception.</p> <p> (6) Negligence. Pleading. Aggravation of Former Injury. </p> <p>In a personal injury action plaintiff is entitled to recover if it should appear that her condition was due to an aggravation of an old ailment caused by the accident, although there was no averment in the declaration of damage resulting from such aggravation.</p>

<p> '(1) Equity. Fraud. Confidential relations. </p> <p>'Complainant, a woman seventy-two years of age, had from time to time endorsed notes for her nephew, until she was obligated through her endorsements to the amount of $7,000. At the request of the nephew, in order to •obtain a further loan of $1,000, complainant gave to the payee of the notes a bond for $8,000 secured by mortgage upon her real and personal estate and obtained the surrender of the notes for $7,000 and a further advance of $1,000 to the nephew. Complainant claimed that she was old and inexperienced in business, and that her nephew was her business agent occupying; a fiduciary and confidential relation to her.</p> <p>On bill against the nephew and the mortgagee to have the mortgages cancelled on the ground that mortgagee secured them with full knowledge of the relations between complainant and her nephew:—</p> <p>Held, that the relations between them were not of that general and intimate character which would of themselves necessarily raise a suspicion of fraud in the transactions between her and respondents.</p> <p>Held, further, that it being established that complainant understood the nature of the obligation which she was incurring, the advice of a third party was unnecessary and respondents were under no obligation in that respect.</p> <p>Held, further, that complainant did not execute the mortgages through any undue influence exerted upon her by either respondent, but for the purpose of assisting the nephew.</p> <p> (8) Equity. Fraud. </p> <p>The fact that a conveyance or other transaction is made without professional advice or consultation with friends and is improvident, if not coupled with an inadequacy of price is not in itself a sufficient ground for relief, provided the-parties were both able to judge and act independently and did act upon equal terms and fully understood the nature of the transaction and there was-no undue influence or circumstances of oppression.</p> <p> (8) Equity. Fraud. Parent and Child. </p> <p>Transactions between a parent and child or other near relatives may be carried on under such circumstances as to remove all suspicion of fraud. This is-especially so if the one obtaining the benefit is one who would naturally be the recipient of the other’s bounty.</p>

<p> C1) Equity. Fraudulent Conveyances. </p> <p>An assignee in insolvency may maintain a bill in equity to set aside a conveyance of real estate and an assignment of a deposit, as made in fraud of creditors and as preferential, and to have complainant decreed to be the owner of such property as assets of the estate of the insolvent and to compel the respondents to make proper transfers of such property to him, the jurisdiction of courts of law and equity being concurrent in cases of fraud.</p> <p>(Ü) Equity. Fraudulent Conveyances.</p> <p>A bill in equity by an assignee in insolvency setting out that certain transfers of the insolvent were made in fraud of creditors and as preferential, and that respondent at the time knew or had reasonable cause to believe his grantor to be insolvent and to be acting in contemplation of insolvency and that the transfers were made with intent to hinder delay and defraud his creditors and also with intent to prefer him as a creditor states a case of fraud.</p> <p> (8) Insolvency Act. Clerical Error. </p> <p>In a notice to creditors under the State Insolvency Statute, of a meeting to elect an assignee in insolvency the fact that the register was referred to as the referee was a clerical error and one incapable of misleading anyone, the purpose of the meeting being plain, and did not affect the election of the assignee.</p> <p> (4) Equity. Fraud. </p> <p>Upon a bill in equity to avoid certain conveyances as in fraud of creditors and as preferential, evidence considered and held, to sustain the allegations of the bill.</p>

<p>C1) Wills.</p> <p>After bequeathing certain pecuniary legacies a will provided “If any such persons are not living at the time this instrument is executed, the bequest made to them shall be equally divided between those hereinbefore named. ”</p> <p>Held, that the words “at the time this instrument is executed” referred to the death of testator rather than to the time the will was signed and published, this construction being consistent with the scheme of the will and with the provisions of Gen. Laws, 1909, cap. 254, § 6.</p> <p> Wills. </p> <p>In the first clause of a will testator bequeathed various pecuniary legacies to relatives. In the following clause he provided “I bequeath to the persons hereafter mentioned the following sums. If any of such persons are not living at the time this instrument is executed the bequest made to them shall be equally divided between those hereinbefore named. Then followed pecuniary legacies to various legatees, one of them being to X. for $1,000, and providing further, “I also give, devise and bequeath to X. anything that remains after satisfying the above bequests whether real or personal.” X. died during life of testator leaving no issue.</p> <p>Held, that it was the intent of the will that in case any of those named in the second clause should predecease testator, the bequest to such person should lapse and be equally divided between those mentioned in the first clause.</p> <p>Held, further^ that where certain of the legatees in the first clause died during the life of testator leaving issue living at his death, such issue not only took the pecuniary legacy bequeathed to the deceased ancestor, but also took per stirpes equal parts of such legacies given under the second clause as failed by reason of the death of the legatees named in the second clause.</p> <p>Held, further, that the bequest to X. should be equally divided between the surviving legatees and the issue of deceased legatees (per stirpes) under the first clause, the heirs at law of testator having no interest therein as intestate estate.</p> <p>(S) Wills. Specific Legacies. Ademption.</p> <p>By a testamentary provision certain “mortgages on western farms, amounting to something more than five thousand dollars ” were left in trust, the income to be paid to X. for life, and on her death the corpus to be divided equally among various institutions.</p> <p>No such mortgages and no trace of funds derived therefrom were found.</p> <p>Held, that the bequest was a specific legacy and had been adeemed.</p>

<p> {!) Bills and Notes. Consideration. Accord and Satisfaction. </p> <p>Where an attachment is released and a suit discontinued by a creditor upon the receipt of a payment in cash and an endorsed note from the debtor, the arrangement is in'the nature of a compromise and settlement, and in the absence of fraud, it operates as a merger of all claims and causes of action included therein and bars recovery thereon and all defences thereto, and in an action upon the note, failure of consideration cannot be set up as a defence, and the endorsers have no greater right of defence than the maker.</p> <p>(#) Bills and Notes. Consideration. Accord and Satisfaction.</p> <p>As a release of an attachment alone or coupled with forbearance to sue is a sufficient consideration for a note, even if there were other considerations which failed, they cannot be set up as a defence to the note.</p> <p>(S) Bills and Notes. Accord and Satisfaction.</p> <p>In the absence of fraud and misrepresentation, a compromise of a claim furnishes a good consideration to support a payment or promise to pay thereunder, and it is immaterial that it appears thereafter that the claim was invalid.</p>

<p> (1) Stockholders Liability. Corporations. </p> <p>Gen. Laws, 1896, cap. 180, §§ 1, 2, 3, providing that the members .of every incorporated manufacturing company shall be jointly and severally liable for all debts until the whole amount of the capital stock fixed and limited by charter or by vote of the company in pursuance of the charter or of law shall have been paid in and a certificate made and recorded and requiring certain of the officers and the directors within ten days after payment of the last instalment of the capital stock fixed by charter or by vote of the company in pursuance of the charter or of law to make a certificate stating the amount of the capital so fixed and paid in, and requiring like proceedings in case of the increase of the stock as to the amount added and paid in and making any of said officers and directors refusing or neglecting to perform .their required duties jointly and severally liable for all debts contracted after the expiration of said ten days and before such certificate is filed, provide the same proceedings in case of an increase of stock as in case of original capital “fixed and limited,” and it must appear in both cases that the capital or the increase has been “fixed and limited by the charter or by vote of the company ” and that the last instalment has been paid before the officers can make the certificate and until such time and until the certificate is duly made the liability rests upon the stockholders under the provisions of Section 1 and not upon the officers and directors under Sections 2 and 3.</p> <p>•(2) Stockholders Liability.</p> <p>•One seeking to enforce the liability of corporate officers under a statute must allege and prove affirmatively every fact, default or contingency upon which his right to recover depends so as to bring himself clearly within the statute.</p> <p> iS) Corporations. Stockholders Liability. </p> <p>Gen. Laws, 1896, cap. 180, §§ 1, 3, provide that until the whole amount of capital_sinck,fixed and limited has been paid in and certificate duly filed the members of every incorporated manufacturing company shall be jointly and severally liable for all debts; that after all fixed capital stock or increase has been paid in, the officers shall make a certificate to that effect exonerating the stockholders from liability and that the officers shall be liable after ten days after the payment of the last installment, for all debts contracted thereafter, for their failure to file such certificate, and by Section 15, provides that the whole amount of the debts which any incorporated manufacturing company shall at any time owe shall not exceed the amount of its capital stock actually paid in and in case of any excess the directors under whose administration it shall happen shall be jointly and severally liable to the extent of such excess for all debts then existing and for all contracted as long as they shall continue in office, and until the debts shall be reduced to the amount of the capital stock of such company paid in: — ■</p> <p>Held, that the scope of the statute was to make the capital stock paid in a fund for the payment of creditors and directors incurring debts in excess of such capital stock paid in were liable to the extent of such excess, until the debts were reduced to the amount of the capital stock paid in. This liability is in the nature of the liability of sureties and the statute is subject to a strict construction and the directors incurring debts in excess of the stock paid in are not exonerated from liability by the fact that the corporation goes into bankruptcy, and that its trustee in liquidation of its affairs and before suit was brought paid to the creditors sums sufficient to reduce its indebtedness below the amount of paid in capital stock.</p>

<p>Petition for writ of error.</p>

<p> (1) Sales. Master and Servant. Assumed Risks. </p> <p>A contract between vendor located at X and vendee located at Y, by which» vendor was to furnish vendee two boilers at an agreed price, f. o. b. cars at-Y, provided, “We (vendor) include in this price Service of one man to unload and put in place, you to furnish him all necessary help. ”—</p> <p>Held, that delivery was made to vendee either when the boilers were delivered, to the carrier in X, or when vendee received them upoD the tracks at Y, but when they were unloaded at Y, it was incumbent upon vendee to carry them into its works and erect them, and the undertaking remained that of vendee; the vendor merely loaning a man to assist in the work; so where a servant of vendees was injured in the erection, the rules relative to the care-due to the servant from the master applied to the case and whether or not in the circumstances vendee negligently disregarded its duty should have-been submitted to the jury.</p> <p>($) Master and Servant. Loan of Servant. Assumed Risks.</p> <p>Semble; although a vendor is under an agreement to erect the subject-matter-of the contract upon the premises of the vendee, where the vendee erects the-staging and has knowledge of its condition, and a servant of vendee, a common laborer, is ordered by its superintendent to assist in the work, the servant continues in the employ of the vendee, and the master is not released from his obligation to furnish him a safe place to work and to give him. notice of the dangers surrounding the work, and the servant cannot be held to have assumed the risks.</p>

<p> (1) Negligence. Release. Accord and Satisfaction. </p> <p>In an action for personal injury defendant alleged as one ground of defence that plaintiff had executed a release of her claim. Plaintiff claimed want of mental capacity at the time of the execution of the release.</p> <p>Held, that assuming her mental capacity, whether or not the paper was in the absence of payment of the sum specified, an accord and satisfaction or simply an accord with satisfaction remaining to be made by the payment of the money was a proper question for the jury under the instructions of the court.</p> <p> (3)Negligence. Release. </p> <p>In a personal injury action request to charge “if at the time of the execution of the release, plaintiff had sufficient mental capacity to render her capable of understanding the effect of the release, the verdict must be for defendant” was properly refused, since it excluded all consideration of the legal effect of . the paper signed.</p> <p>(3) Negligence. Release. Incapacity.</p> <p>In a personal injury action request to charge “if the plaintiff was in fact suffering from mental incapacity at the time of the execution of the release, but this mental condition was not known to defendant, there can be no recovery in this action” was properly refused.</p> <p> (4) Negligence. Release. </p> <p>In a personal injury action request to charge “If plaintiff at the time of the execution of the release, was not in full possession of her mental faculties there can nevertheless be no recovery unless her mental incapacity was so great as to render her incapable of understanding that at the time she executed the release she surrendered any claim she might have against the defendant by reason of the accident,” was properly refused, as excluding all consideration of the legal effect of the paper signed.</p> <p> (5) Negligence. Railroads. Duty to Passengers. </p> <p>In a personal injury action, the refusal of a request to charge that “If the jury find that defendant, by its servants, did everything reasonably possible, having regard to the proper operation of its railroad, verdict should be for defendant and a contrary conclusion by the jury is not justified in the absence of evidence showing that defendant did in fact omit to exercise this degree of care,” although not objectionable as a statement of the law, is not prejudicial where the court had fully covered the point in its charge.</p> <p> (6) Negligence. Release. Mental Capacity. </p> <p>Where a defendant introduces a release from plaintiff, upon the question of plaintiff’s mental capacity at the time of its execution, while mere madequacy of consideration wbere the parties stand on an equal footing is not sufficient to establish mental incapacity, it may constitute a circumstance to be considered by the jury in connection with other facts in determining that question.</p> <p>(7) Negligence. Release.</p> <p>In a personal injury action request to charge “As there is no evidence of any imposition or fraud with regard to the circumstances leading up to and existing at the time of the execution of the release and no claim is made by plaintiff that any imposition or fraud existed or was practiced the jury must find the release to be valid ” was properly refused, since it excluded the questions of the mental condition of plaintiff and the legal effect of the paper as signed.</p> <p> (8) Negligence. Release. New Trial. </p> <p>Where in a personal injury action defendant pleaded a release from plaintiff, and upon the first trial plaintiff secured a general verdict and upon a second trial a verdict with á special finding that at the time oi the execution of the release plaintiff did not have sufficient mental capacity to understand its effect, and the latter finding was approved by the trial court, when it granted a new trial upon all issues except that involving the validity of the release which was to be regarded as finally determined; upon exceptions, the finding of the nisi prius court will not be disturbed.</p>

<p>(1) Equity. Specific Performance. Contracts.</p> <p>On a bill in equity for specific performance of a contract for sale of real estate, where it appeared that there was no time fixed for performance, but delivery of the deed and payment of the price were to be concurrent acts and neither party tendered performance on his part and demanded performance by the other until such action was taken by complainant nearly two years after execution of the contract, the complainant was not free from fault, and his right to relief was only saved by the fact that respondent did not take the necessary steps to repudiate the contract. In such case the complainant is sufficiently compensated if made whole, and respondent will not be required to account for the profits derived from the sale of trees which he cut, but will be required to account for their value as standing timber.</p> <p> {2) Contracts. Specific Performance. Interest. </p> <p>On a contract for sale of real estate no time for performance was fixed, but the price was “to be paid on the closing of the title and the passing of the deed,” and no interest was provided for by the contract.</p> <p>Held, that the purchase price would not draw interest for the benefit of vendors until it was made payable by tender of a deed conveying good title.</p> <p>(SJ Contracts. Interest.</p> <p>Before interest as damages will be allowed for the breach of a contract to pay money, there must be a default in payment of the debt and interest is usually allowed from such default. The debt must be ascertained.in amount or capable of ascertainment and there must be certainty as to time of payment also.</p> <p> {If) Equity. Costs. </p> <p>In a bill in equity for specific performance of a contract for sale of real estate where the decree for complainant awards costs in his favor, it covers the costs up to the time of entry of such decree and subsequent costs in proceedings before a master will be reserved until entry of the decree after the coming in of the master’s report.</p>

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

<p> (1) Taxation. Evidence. </p> <p>In an action to recover a tax, defendant may properly inquire in cross examination as to the authority under which the town clerk called the meeting at which the tax in suit was ordered.</p> <p> (S) Elections. Financial Town Meetings. </p> <p>A financial town meeting was called in accordance with Gen. Laws, 1896, cap. 37, Sec. 6, as amended by Pub. Laws, cap. 781, May, 1900, providing for the calling of a meeting “to transact any business relating to such town” and requiring the electors “to be notified of the time when and the place where the same is to be holden and of the business proposed to be transacted therein.” In neither the request by the town council nor in the warrant was there any statement of the purpose to pass a vote relative to the date of future financial town meetings, but at such meeting a vote was passed that “until further ordered the regular annual financial town meeting shall be held” at a time and place fixed in said vote.</p> <p>Held, that the meeting had no power even under the terms of the call to consider such question and further Gen. Laws, 1896, cap. 37, Sec. 4 provided expressly for the holding of meetings other than annual town meetings for the election of officers.</p> <p> (3) Elections. Financial Town Meetings. Taxation. </p> <p>A financial town meeting not prescribed by law falls within the class of called meetings provided for by Gen. Laws, 1909, cap. 47, Secs. 4, 6, and must be called in accordance with the statutory provisions, and in the absence of a request in writing by the town council or by the required number of electors, there is no authority for the issuing by the town clerk of the warrant calling such meeting, and in such case the electors not being legally assembled a voce ordering a tax is invalid.</p> <p>(4) Taxation.</p> <p>The power of taxation is legislative and cannot be exercised otherwise than under the authority of the legislature, and the power granted to local authorities must be exercised in strict compliance with the statute and any conditions or limitations imposed thereby and such grants as to their nature and extent are construed with strictness and any doubts are given to the taxpayer.</p> <p>Sweetland, J., dissents.</p>

<p>(1) Equity. Patents. Cloud on Title to Personal Property.</p> <p>Equity has jurisdiction to remove a cloud upon patent rights and to cancel a. contract entered into between parties in relation thereto.</p> <p> {2) Equity. Contracts. Receivers. </p> <p>Under an agreement respondent was to furnish complainant facilities for the perfection of certain inventions; was to promote the sale of the inventions-, and pay complainant a certain sum per week, as well as royalties from the future sale of the inventions, and complainant agreed to assign a one-half' interest in the patents already granted him and upon the performance of the-agreements of respondent to assign a similar interest in such other patents as. he should take out while employed under the contract and to work for respondent in her shop until he had completed the inventions. It was. further agreed that neither should grant any license or right relating to such patents or dispose of any interest in the same without consent of the other.</p> <p>Complainant performed his agreements and continued to work on the inventions for three years when respondent losing faith in the inventions discontinued the manufacture and sale of the appliances; ceased to furnish facilities, sold her shop and notified complainant to remove his property therefrom, and ceased to pay him the weekly sums provided in the contract..</p> <p>Complainant continued for five years to work on the inventions at his own. expense and took out other patents and brought his bill seeking to remove-the cloud upon his title, by the cancellation of the agreement.</p> <p>Held, that respondent having repudiated the agreement it was inequitable-that complainant should be bound by the restrictions against the sale of or the granting of licenses under, his interest in the patents.</p> <p>Held, further, that the restrictions were unenforceable against complainant and' constituted a cloud upon his title, entitling him to a cancellation of the-contract.</p> <p>Held, further, that the decree of the court appointing a receiver to take title to all inventions referred to in the agreement and to all rights in any patents: conceived and devised by complainant since the agreement and to dispose of' same and divide the proceeds among the parties, was not called for by any equitable principle, and would be reversed.</p>

<p>(1) Evidence.</p> <p>In an action to recover damages to property caused by the building of the approaches of a bridge, in reply to a question: “How was the house damaged by the building of the approaches to that bridge,” an answer showing injury to trees and injury by cinders from a smokestack, without identifying the smokestack, and in addition stating hearsay evidence, is not responsive, and should have been stricken out.</p> <p> (S)Evidence. </p> <p>In an action to recover damages to property caused by the building of the approaches of a bridge, in reply to question: “Any further damage done to the house as a result of the building of the approaches, ” an answer showing damage from a dynamite explosion without indicating the source of the explosion, should have been stricken out.</p> <p> (8) Evidence. </p> <p>In an action to recover damages to property caused by the building of the approaches of a bridge, testimony as to the amount of land condemned in eminent domain proceedings was properly admitted although plaintiffs had lost their right to damages for the land condemned in connection with the building of the bridge by not asserting their right within the time prescribed by statute, since such land would be necessarily removed from consideration in the case at bar so far as damage to it was concerned, and such evidence would show what remained for consideration as to damage from the building of the approaches.</p> <p> (4) Evidence. </p> <p>In an action to recover damages to property caused by the building of the approaches of a bridge, when plaintiff had lost his right to damages for the land condemned in connection with the building of the bridge by failure to assert his right within the time prescribed by statute, testimony as to the use made by a tenant of a portion of the land which he rented, for the purpose of showing that by reason of the cutting off of such land the rental value had decreased, was immaterial since petitioner could not show damage to the property caused by the cutting off of such land, in this proceeding.</p> <p> (5) Evidence. Eminent Domain. </p> <p>In an action to recover damages to property caused by the building of the approaches of a bridge, evidence of damage by reason of condemnation proceedings cannot be considered.</p> <p> (6) Evidence. Best Evidence. </p> <p>Question as to whether father of witness ever sold any portion of certain premises is objectionable since the deed would be the best evidence of such fact,</p> <p>(7) Evidence.</p> <p>In an action to recover damages to property caused by the building of the approaches of a bridge, question whether a portion of the land sold to X by the father of witness was included in the premises for which the action was brought was admissible, for while the deed would be the best evidence as to the description of the land conveyed, it might require the evidence of a witness to show that the portion conveyed was not included in the description of the land in the pending case.</p> <p>(<?) Evidence.</p> <p>In an action to recover damages to property caused by the building of the approaches of a bridge, evidence of real estate dealers as to the value of the land or house at the time of trial or after the building of the approach is pertinent for the purpose of ascertaining the present value for comparison with the value before the building of the approach.</p> <p> (9) Evidence. </p> <p>Upon the question of ownership of premises, evidence of a tax collector as to whom the premises had been taxed for a stated period was admissible, for while not tending to prove either title or possession it constituted one circumstance, which in connection with others, might be considered by the jury.</p> <p> (10) Hearsay Evidence. </p> <p>The admission of hearsay evidence which is not harmful does not constitute reversible error.</p> <p> (11) Evidence. Plats. </p> <p>In an action to recover damages to property caused by the building of the approaches of a bridge, a plat showing land condemned by the commissioners was properly admitted since such land would be removed from consideration in the case at bar, so far as damage to it was concerned, and such evidence would show what remained for consideration, as to damage from the building of the approaches.</p> <p> (1%) Land Damage. </p> <p>In an action to recover damages to property caused by the building of the approaches of a bridge, charge that if deterioration in value by the construction of the approach was found, then the difference between its value before the approach was built and its value after the construction was the amount to be awarded claimant, was error, since its value might have deteriorated from causes other than such construction.</p> <p> (IS) Land Damage. </p> <p>Cap. 499, Pub. Laws, as amended by cap. 649, Pub. Laws, “An act for the appointment of a commission for the erection of a certain bridge between the cities of Pawtucket and Central Falls,” Sec. 4, gave the commissioners power to condemn land, buildings and improvements for the purposes of the bridge, its abutments and approaches and provided for the appraisal of damages caused by such condemnation. Section 5 provided that any person having an interest in land abutting upon the approaches might petition for the • assessment of damages suffered through the building of the approaches. Under Sec. 4 the commissioners condemned a part of the house occupied by petitioner and the land on which such part stood.</p> <p>Petitioner brought his petition for compensation for damages caused to him as an abutting owner through the building of the approaches.</p> <p>Held, that the cutting off of a portion of the bouse, which stood upon the land condemned, although done on the building of the approaches was an injury for which petitioner could have been compensated under Sec. 4, since just compensation in such case would have included not only the value of that which was taken, but damages if any to the remainder, and therefore instruction to the jury that if upon the construction of the approaches it became necessary to cut the building and by reason thereof there was damage to the remaining portion abutting upon the approach, that constituted an element of damage in the proceedings under Sec. 5, was erroneous.</p> <p> (14) Adverse Possession. </p> <p>If a tenant after the expiration of a lease executed by lessor disclaimed lessor’s title and claiming to be the owner in fee simple of the premises made his claim in such manner as to carry knowledge of it home to lessor or his successors in the title, and thereafter remained in uninterrupted quiet and peaceful and actual seisin and possession of the premises during the period of ten years after February 1, 1896, claiming all that time to be the sole and rightful owner in fee simple, he acquired title by adverse possession.</p> <p> (16) Adverse Possession. Landlord and Tenant. </p> <p>Charge that if claimant would establish title by adverse possession he must show that possession of his ancestor in title continued for the statutory period after the expiration of the lease, but he was estopped to set up that lessor did not have title upon the execution of the lease to the ancestor in title of claimant, was proper.</p> <p> (16) Land Damage. </p> <p>In an action to recover damage to property caused by the building of the approaches of a bridge, instruction that when the owner of the premises had notice that the building must be moved, he could not permit damage to be done to it if the conditions were such that he might reasonably be expected to move it and thus reduce the damage which he otherwise would suffer, and if he should have taken steps to prevent the cutting of the building then such damage as was suffered by reason of the cutting would not be an element of damage in the case, was proper.</p>

<p> (1) Negligence. Proximate Cause. </p> <p>A towerman in the north tower of a “block” violated a rule of the railroad in permitting more than one train to enter the “block” at the same time. He notified the south towerman that both trains were in the “block” and set his signal at “danger” and this danger signal could-not be changed until its mechanism was unlocked by the south towerman. One of the trains passed out of the “block” and without waiting for the second to do so, the south towerman unlocked the danger signal at the north tower. The north towerman then placed his signal at “safety” and the train upon which deceased was engineer entered the “block” and collided with the second train.</p> <p>Held, that the want of care of the north towerman was not the proximate cause of the accident, which was the negligence of the south towerman in unlocking the danger signal before both trains passed out of the “block.”</p> <p>Held, further, that the negligence of the two towermen was not only not concurrent in time, but also the setting of the danger signal intervened, which prevented any evil consequences from the wrongful act of the north towerman until the new distinct wrongful act of the south towerman also intervening became the immediate cause of the injury.</p> <p> (%) Master and Servant. Negligence. Vice-Principal. Fellow Servant. </p> <p>A towerman whose duty it is to set the signals and operate the mechanism under his control for the purpose of giving notice to trainmen operating trains within and near the “block” where he is employed, is a fellow servant of an engineer operating a train through the “block.”</p> <p>(3) Master and Servant. Negligence. Vice-Principal. Fellow Servant.</p> <p>A towerman whose duty it is to set the signals and operate the mechanism under his control for the purpose of giving notice to trainmen operating trains within and near the “block” where he is employed comes within the class of switch tenders, signal men, telegraph operators, station agents and others, who are held to be fellow servants of the men employed upon the train whose movements they assist, rather than within the class of train dispatchers who in arranging for the running of trains over a railroad system are held to be performing the non-delegable duties of the master.</p>