Volume 36 — Rhode Island Reports

<p>(.1) Appeal and Error.</p> <p>Under Gen. Laws, cap. 285, § 3, providing that no judgment or other proceeding in civil cases in any court shall be reversed for any defect or want of form, but the court shall proceed and give judgment according as the right of the cause shall appear, and cap. 298, § 24, providing that exceptions to decisions or rulings prior to trial shall be open to revision after verdict or final decision on the merits, but so far only as it appears to the Supreme Court that the verdict or final decision was erroneously affected thereby, exceptions to the action of the court in sustaining a declaration which although technically defective was amendable, and in sustaining replications setting out issues which should have been raised by amendment of the declaration, will be overruled.</p> <p> (8) Principal and Surety. Discharge of Surety. </p> <p>Where the name of a surety is removed from a bond after its execution, co-sureties who did not know or consent to the removal, will not be bound, but such as knew or consented to the removal would remain bound.</p> <p>($) Principal and Surety.</p> <p>Although all the sureties on a bond are released by the removal of the name of one of the sureties after its execution, without the consent of the others, the bond is not null and void, but remains binding upon the principal.</p> <p> (4) Principal and Surety. </p> <p>Where one executed a guaranty of a bond, which in turn secured a lease, knowing that the name of one of the sureties had been erased from the bond, after signing, but before delivery, the fact that the guarantor did not know that the erasure had been made without the knowledge of the other sureties on the bond, and that he did not know that his co-sureties on the guaranty were also unaware of the removal of the name of the surety from the bond, did not relieve the guarantor of liability under the guaranty, since he should have ascertained the facts before signing as to all the circumstances of the erasure.</p> <p> (5) Principal and Surety. </p> <p>An obligee is not under the duty of investigating to learn whether the removal of a surety’s name has been consented to by the other sureties, but a surety must make any necessary investigation for himself.</p> <p> (6) Principal and Surety. </p> <p>The fact that the principal practiced fraud upon any of the sureties, in the case at bar, either on the bond or guaranty to obtain their signatures, would not be a defence if the obligee was not privy to it.</p> <p>(7) Leases. Construction.</p> <p>Under a lease the lessor covenanted to make certain alterations which were to be paid for by lessee in annual instalments, the first to be paid May 31, 1901. This lease dated June 1, 1900, was not executed until November 27, 1900, and was not delivered until about January 5, 1901, upon the making of a contract for the improvements which were to be completed by September 1, 1901. This delay was owing chiefly to inability of lessee to give the security for payment of the rent. The guarantor claimed that by lessor entering into the contract for the improvements requiring their completion during the fall of 1901, he changed the obligation of lessee to pay the first instalment May 31, 1901, as guaranteed and thus released guarantor:—</p> <p>Held, that the lease was to be construed in the light of all the circumstances shown to exist at the time of its going into effect by delivery, and according to the construction then put upon it by the parties to it and by the guarantor so far as is permissible under the rule of construction applicable thereto.</p> <p> (8) Guaranty. Discharge of Surety. </p> <p>A- material alteration in the original contract by the parties thereto without consent of the surety or guarantor will release the surety or guarantor.</p> <p> (9) Guaranty. Discharge of Surety. </p> <p>Where a contract is divisible, as where successive payments are to be made, at fixed periods, if the creditor gives time as to one of such payments he will reheve the surety with regard to that payment only, but not with regard to the subsequent payments.</p> <p> (10) Guaranty. Discharge of Surety. </p> <p>A modification of the principal contract even after a guaranty has been given and accepted does not release the guarantor if made with his consent.</p> <p> (11) Guaranty. </p> <p>The fact that the consent of a guarantor is given to the modification of the original contract may be shown by circumstantial evidence. Tacit acquiescence is enough.</p> <p> (IS) Guaranty. </p> <p>Where a lease provided that lessor should make certain alterations which were to be paid for by lessee in instalments at stated periods, but the delivery of the lease was delayed for about seven months owing to inability of lessee to furnish satisfactory surety, and the guarantor while the lease, bond, and guaranty were being held .in escrow saw them and was consulted about the contract for alterations, suggested bidders, knew that a certain bidder had obtained the contract and permitted the delivery of his guaranty simultaneously with the delivery of the lease, bond, and contract as part of one transaction, a change in terms of payment under the lease which might be necessitated by the above facts of which guarantor had notice would not be a defence under the guaranty.</p> <p> (IS) Guaranty. </p> <p>Where on the above facts guarantor knew that lessor would not have delivered the lease without his guaranty and that he relied upon him and not upon his co-guarantors and that upon the execution of the guaranty lessor entered into a contract for alterations at great expense, he is equitably estopped to set up the defence that there was an alteration of the risk, by a change in the terms of payment for such alterations, owing to the delay in the delivery of the lease.</p> <p> (14) Landlord and Tenant. Waiver. Guaranty. </p> <p>Where a lease provided for the making of alterations by the lessor to be paid for by lessee in stated instalments, the action of lessor in entering into a contract which would necessarily extend the completion of the improvements beyond the date fixed for payment of the first instalment amounted to a waiver by lessor of one of the terms of the lease, within the meaning of a provision of the bond securing the lease, that waiver by lessor of any breach of covenant in the lease should 'in no way impair the bond.</p> <p> (15) Landlord and Tenant. Waiver. </p> <p>Waiver of a provision of a lease may be shown by conduct inconsistent with its enforcement.</p> <p> {16) Courts. </p> <p>The interpretation placed by the Superior Court upon a lease in sustaining a demurrer to a fifth replication, which action was not excepted to, is not binding either upon the Superior Court at the trial upon the issues of the case as they then stand nor upon the Supreme Court upon review. Such decision upon the demurrer as it was not excepted to eliminated such replication and the issue attempted to be raised by it from the record, but the appellate court is not bound by the reasons stated by the lower court for reaching said decision.</p> <p> {17) Landlord and Tenant. Construction of Lease. </p> <p>Where a payment due by lessee on account of alterations to be made by lessor was postponed on account of the fact that owing to delay in delivery of the lease the alterations had not been made at the time for payment and no other time for payment was ever agreed upon, the payment of the instalments was not released, but was simply deferred and would become due in a reasonable time after completion of the work and in determining the question of reasonable time it is proper to consider what time after occupancy of the property was originally intended to be allowed lessee to make such payments and to consider any changes in the condition or circumstances of the parties, known to both which could affect it.</p> <p> {18) Landlord and Tenant. </p> <p>Where under a lease lessee was in arrears for rent and interest, as well as for instalments due for alterations, but the payment of the latter instalments had been deferred until a reasonable time after the completion of the alterations, the fact that lessee made certain payments, upon presentation of the bills for such instalments before a reasonable time, protesting that he had not been given sufficient time for payment, was not a recognition by him that such instalments were due when he made the payments on account, where the rent and interest alone exceeded the amount of the payments made by him.</p>

<p>(1) Master and Servant. Fellow Servant. Vice Principal.</p> <p>A foreman in charge of a servant, who undertakes to hold a ladder for the servant, while the latter is upon it and who fails to do so, whereby the servant is thrown and injured, is in such undertaking a fellow servant, since he is simply carrying out one of the details of the work and is not performing a duty owed by the master to the servant.</p>

<p>(1) Bills of Exceptions.</p> <p>The procedure for the prosecution of a bill of exceptions requires that the bill and transcript shall be filed in the clerk’s office within the time limited therefor, after which, the clerk is required to present the same to the justice who presided at the trial, who after hearing the parties, and after examination of the papers, is required to act thereon in allowance or disallowance thereof, and return the same to the clerk.</p> <p>A bill of exceptions and transcript were presented to the justice, who allowed same, and they were within the'time limited, filed in the clerk’s office.</p> <p>Held, that they had no standing in the case prior to the time of filing, and the justice had no authority to act thereon before they were filed and his attempted allowance was without legal effect.</p> <p>Held, further that as within twenty days after the filing no time was fixed and no notice given for any hearing thereon as required by the rule and no hearing was had and the bill was not acted upon by the justice, and as the petitioner did not within thirty days, attempt to establish the truth of his exceptions, the bill was not properly before the court and would be dismissed.</p>

<p> (1) Easements. Adverse Possession. </p> <p>Upon the question of title by adverse possession by respondent over a portion of a right of way, an agreement by respondent with complainant by which respondent agreed to remove so much of a house as stood upon the right of way on, or before a certain date, must be construed as affording some admission upon her part that she had no claim either by adverse possession or otherwise to any portion of the right of way.</p> <p> (2) Specific Performance. Contracts. Consideration. </p> <p>Although the quesion as to whether or not respondent's house was actually located upon a right of way claimed by complainant, was disputed by respondent, an agreement by respondent to remove the portion of the house claimed to project, in consideration that she should have a stated time to effect such removal, is based upon an adequate consideration, entitling complainant to performance of the agreement.</p> <p> (S) Equity. Laches. </p> <p>To bar one seeking equitable relief, the court must find not only that there has been inexcusable delay in the assertion of his rights, but that such delay . has been the means of placing the respondent in a more unfavorable position.</p> <p> (4) Easements. Cessation of Use. </p> <p>Where a right of way had been used more or less frequently both prior and subsequent to the time complainant acquired the property bounding thereon, and respondent from time to time recognized its continued existence by filling it in with a view to improving its condition as a thoroughfare, there is no evidence of such cessation of use as would defeat the right of the complainant therein.</p> <p>(5) Easements. Equitable Relief.</p> <p>An encroachment of 18 inches by a dwelling-house upon a right of way thirty-three feet in width which does not in any practical way impede or embarrass the dominant estate in its use and enjoyment, and where its removal would subject the respondent to an expense of $500 in moving the house back or to an expense of 1100 in cutting off the projection, at the same time reducing the dining room to a size which would render it useless or exceedingly inconvenient for the purposes for which it was intended, is not such as to entitle complainant to equitable relief, but he will be remitted to his remedy at law.</p> <p> (6) Specific Performance. </p> <p>Specific performance will be denied where the relief sought would be of no practical benefit to complainant, but would cause trouble, inconvenience and expense to the respondent.</p>

<p> (1) Bills and Notes. Principal and Agent. </p> <p>An agent whose duty it is to take charge of his principal's invoices, and fill out cheeks in payment thereof, and after securing the signatures of the proper officers to the checks to turn them over to another employee for mailing, who fills out a check and procures the signatures of the officers thereto in payment of a personal bill, without the knowledge of his principal, is acting beyond the scope of his authority, and where he secures goods from plaintiff by means of the check, it devolves upon plaintiff to make inquiry to ascertain whether such use of the check for the personal benefit of the employee was authorized.</p> <p> (2) Bills and Notes. Principal and Agent. </p> <p>One who takes the check of a corporation knowing that it is being given in payment of the personal debt of an employee, is bound to inquire and ascertain if it has been issued by the company with knowledge of the purpose to which it is to be applied.</p> <p> (8) Bills and Notes. Principal and Agent. </p> <p>Where a check of a corporation had been issued without authority for the personal bill of an employee, a statement to the payee that it was all right except that it required the endorsement of the payee, made by another employee of the company, who had no knowledge of the history of the check, is not binding upon the company.</p>

<p>(1) Intoxicating Liquors. Licenses. Schools. Premises.</p> <p>Gen. Laws, 1909, cap. 123, § 2, provides that no license shall “be granted for the sale of such liquors in any building or place except taverns that were licensed on the 22nd day of May, 1908, within two hundred feet measured by any public travelled way of the premises of any public or parochial school.”</p> <p>Held, that the word “premises” as applied to a school under this statute, would properly include in addition to the room or building where the sessions were held, as appurtenant thereto, such portion, if any, of the land whereon it stood, as might be apportioned or designated, by proper authority for the use of the school, whether in common with others lawfully using said land or otherwise.</p> <p>(#) Intoxicating Liquors. Licenses. Schools. Premises.</p> <p>The upper part of a building was used as a church, while the basement was used as a parochial school. About the middle of the lot fronting on a highway there was a gate with a path leading to the front steps0of the church. At the northwest corner of the lot on the highway were gates opening on a driveway leading back along the north side of the lot to the building. The children had been instructed by the school authorities not to play to the west of an imaginary line, parallel with the highway passing through a post in front of the building from north to south, in effect preventing them from playing in front of the church. The pupils might use either the path or driveway for access to the school.</p> <p>Measuring from.a point on the highway opposite the southwest corner of the licensed building along the highway to the northwest corner of the church lot the distance was 154 feet, and the prolongation of this line along the highway for 200 feet from the starting point would extend across the entrance to the path, but a line drawn from said point of beginning along the highway to said northwest corner of the church lot, then turning east and extending along and' across said driveway to said stone post would measure 240 feet.</p> <p>Held, that the basement, schoolyard driveway and path were all parts of the premises of the school, and a license granted to the building in question was consequently invalid.</p> <p>Held, further, the fact that the driveway was used by other persons having business on the premises did not constitute it a “ public travelled way,” within the meaning of that term as used in Gen. Laws, 1909, cap. 123, § 2.</p> <p> (S) Proof. </p> <p>An actual use for a particular purpose is not shown by authority to so use.</p> <p> (4) Taverns. Intoxicating Liquors. </p> <p>“Taverns” must be houses where the principal business is the furnishing of food and sleeping accommodations, to be included within the exception to Gen. Laws, 1909, cap. 123, § 2.</p> <p>(•5) Taverns. Intoxicating Liquors.</p> <p>To bring a house within the exception to Gen. Laws, 1909, cap. 123, § 2, it not only must have been a “tavern” on May 22,1908, but it must be a real “tavern” on each occasion when a liquor license is granted, and it is not sufficient that it simply holds a tavern license when the liquor license is granted.</p>

<p>(1) Temporary Guardians. Interlocutory Decrees of Probate Court. Power to Modify or Revoke.</p> <p>Gen. Laws, 1909, cap. 307, § 6, providing for the modification or revocation by a probate court of an order or decree made upon an uncontested application, is restricted to such orders and decrees as are appealable.</p> <p> (2) Temporary Guardians. Interlocutory Decrees of Probate Court. Power to Modify or Revoke. </p> <p>As to certain non-appealable decrees a probate court has the power of modification and revocation, without express statutory provision. Within this class is the appointment of a temporary guardian under Gen. Laws, 1909, cap. 321, § 8. As to such act the probate court is not bound by its order first entered, if made erroneously or improvidently, but it has the inherent power to change or set it aside, unrestricted by the provisions of cap. 307, § 6.</p>

<p>(1) Landlord and Tenant. Notice to Quit.</p> <p>While Gen. Laws, 1909, cap. 334, § 4, does not prescribe any particular form of notice to quit nor direct the particular manner in which such notice shall be served it does require that the notice must be from the landlord, and a notice requiring a tenant to surrender possession of a tenement “now occupied by you at 131 X Street to Y, owner of said property at the end of the current month,” signed J. O. Q. Atty, is not a compliance with the statute.</p> <p> (2) Landlord and Tenant. Notice to Quit. </p> <p>Where a notice to quit is signed by an attorney, in the absence of any words indicating that he is acting for or in behalf of the landlord, the court cannot assume that in affixing his signature to the notice he was acting for the landlord, nor can the latter be permitted to supply the omission by oral testimony.</p> <p> (8) Landlord and Tenant. Notice to Quit, </p> <p>A notice to quit becomes effective, if at all, at and from the time of its service.</p> <p> (4) Landlord and Tenant. Notice to Quit. </p> <p>While the landlord need not personally affix his signature to a notice to quit, the signing should be in some form clearly indicating that the notice originated with him.</p>

<p>(1) Officers. Costs. Collection Agencies. Principal and Agent.</p> <p>In the absence of any evidence as to the contract between a collection agency and creditors giving it their accounts for collection, or as to the authority of the agency in the employment of attorneys to sue or of officers to serve the writs, the agency in taking steps for the collection of the accounts, in the absence of a special contract limiting its liability, is an independent contractor and is liable to a constable whom it employs for his fees for the service of writs.</p> <p>(#) Officers. Process. Costs. Contracts. Implied Promise.</p> <p>Where the costs of an officer are legally due, he may recover them from the person who employed him to make service of a writ, although he did not demand such costs in advance, and the liability of the principal is not limited to an express contract with the officer, but an implied promise is .equally as effective to bind the principal.</p>

<p> (1) Bills of Exceptions. Stating the Exceptions. </p> <p>A party cannot offer a summary statement of the meaning and effect of certain evidence alleged by him to have been introduced at the trial, in place of the transcript of such evidence as officially reported, but in any event such a statement would have no place in a bill of exceptions, and was-properly stricken out before the bill was allowed.</p> <p> (2) Bills of Exceptions. Sufficiency of Transcript. </p> <p>It is the duty of the Superior Court to determine whether the entire transcript of evidence shall be filed or how much thereof may be necessary for the determination of the exceptions, and rule 13 of the Supreme Court provides for a petition to determine the correctness of a transcript, and if the court can entertain a petition for declaring the sufficiency of a transcript it must be by a liberal interpretation of rule 13 relative to a petition to establish the correctness of a transcript.</p> <p> (3) Bills of Exceptions. Sufficiency of Transcript. </p> <p>On a petition for declaring the sufficiency of a transcript, it appeared that the transcript contained none of the evidence introduced before the jury, but only evidence offered and rulings as to the right of plaintiff to interrogate jurors and as to the requests to charge of the parties respectively refused and granted to which exceptions were taken by the plaintiff and all of the charge of the court. There were two depositions in the case, one of which had not been opened, and there was no reference in the transcript showing the use of the other, but plaintiff filed an affidavit stating that the depositions were offered and received in evidence.</p> <p>Held, that the statutes provided a method for the production of a correct-record of so much of the proceedings at the trial as might be necessary for the determination of a bill of exceptions, and such method was exclusive.</p> <p>Held, further, that there was no question as to the correctness of the transcript-,, so far as it went, but only as to its sufficiency for which fact the party ordering it was.responsible, and in so far as the record of the trial was not contained in the transcript filed, it was not before the court, and as such transcript failed to show the admission of the deposition it would not be considered.</p> <p>Held, further, that the fact that defendant filed no affidavit denying the use-of the deposition was not important, as the statutory procedure could not be waived.</p> <p> (4) Bills of Exceptions. Sufficiency of Transcript. </p> <p>On a petition for declaring the sufficiency of a transcript of evidence, where-the transcript offered- contains none of the evidence taken at the trial,. the court cannot disturb the finding of the justice presiding as to the insufficiency of the transcript for the determination of the exceptions, for even if some of the requests to charge were to be accepted as correct statements of law, in the absence of the transcript the court cannot determine as to their pertinency sufficiency or correctness as they relate to the case at bar.</p> <p> (5) Bills of Exceptions. Sufficiency of Transcript. </p> <p>Where a party has filed no petition to review the finding of the justice presiding that a transcript is sufficient for the determination of certain exceptions, such ruling is not before the court, upon a petition by the adverse party to review the finding of the justice that such transcript is insufficient for the determination of other exceptions.</p>

<p>(1) Workmen’s Compensation Act.</p> <p>Where it appeared that deceased was a minor son living at home with his father and mother; that all three worked in a mill, the father earning about $11.50 a week, and the mother and son about $8 each; that the father owned the house they lived in, which had a rental value of $10 a month; that the father and mother owned two other houses, each of which rented for $7 a month, and which were mortgaged for $500, the interest being $30 a year; that the son gave his pay to his parents, in return for which they gave him about $1 in money, in addition to board, lodging and clothing, the father receiving from this arrangement a net profit of about $5 a week, and that at the time of the injury their united savings were from $10 to $12 a week; that since the death of the son the mother ceased to work, but the father continued and had been able to support himself and wife out of his wages and income and save about $3 or $4 a week, upon these facts the father ■was not dependent for support upon the earnings of the son, either wholly or partly. ■</p> <p>The test of dependency is not whether the petitioner by reducing his expenses below a standard suitable to his condition in life could secure a subsistence for his family without the contributions of the deceased, but whether such contributions were needed to provide the family with the ordinary necessaries of life suitable for persons in their class and position.</p>

<p>(I) Attorney and Client. Summary Action of Court.</p> <p>An attorney obtained a loan from petitioner for which he gave her a mortgage, not having the legal title to the property which the mortgage purported to convey. At the time the relation of attorney and client did not exist between them, and the mortgage was given at his suggestion and was not the inducement for making the loan. Respondent claimed that the mortgaged property was purchased with his money, and the holder of the legal title acknowledged his ownership and admitted that the mortgage constituted a valid lien upon it.</p> <p>Held, that a summary order would be denied, since the transaction was entirely unrelated to the professional character of respondent.</p> <p>Held, further, that while the court would in any case for the integrity of the profession and the protection of the public, exercise proper discipline over an attorney even if a summary order would not lie; in this case no moral turpitude appeared warranting the entry of any disciplinary order.</p> <p>(2) Attorney and Client. Summary Action of Court.</p> <p>Where the relation of attorney and client exists, the summary jurisdiction of the court will not be exercised against an attorney, if it appears that there exists a fair dispute between him and the client which can be decided only on the settlement of doubtful questions of fact or law, but the parties will be left to their ordinary remedies, and summary action by the court should be taken only in cases where the action of the attorney is dishonest, oppressive, or clearly illegal.</p>

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

<p>(1) Attorneys at Law.</p> <p>Upon a complaint against an attorney evidence considered and order entered directing payment of money converted and suspending respondent for a stated time. .</p>

<p>(1) . Surface Waters. Trespass.</p> <p>In an action for injury to realty requests of the defendant to charge that defendant had the right to change the grade of his land, either the soil itself, or by structures thereon, so as to cause the surface water to flow in a different direction from what it did naturally so long as he did not collect and concentrate it by means of drains or otherwise, and then turn it upon plaintiffs’ land in a volume, and (2) that defendant had the right to make the pitch of the roof of any building as was best adapted for the use of such property, and (3) that unless defendant had collected surface water in some considerable quantity upon his premises and then turned same in a concentrated form upon plaintiff’s premises in such a manner as to cause damage, he was not hable, was properly refused where the court instructed the jury as to the fact that there was no liability for damage from the natural flow of the water from defendant’s land to plaintiff’s land, but that if defendant collected water on the roof of his building and precipitated it on the plaintiff’s land, or obstructed a drain which would have carried off such water and diverted the water or dirt and ashes upon the land of plaintiff, he was hable.</p> <p> {8) Surface Waters. Damages. </p> <p>Request to charge as to compensatory and exemplary damages, was properly refused where the charge of the court sufficiently covered the ground of the request.</p> <p> (3) Surface Waters. Damages. </p> <p>Request to charge that plaintiff could not recover any damages, in an action for injury to realty by surface water, after the date of the writ, was properly refused, where there was no evidence as to any act of defendant subsequent to the issuance of the writ and the damages if any arising subsequent thereto, were incidental to, or occasioned by the conduct of or by acts committed by defendant prior to the issuance of the writ.</p>

<p>(1) Attorneys at Law. Unprofessional Conduct.</p> <p>Upon three complaints against an attorney, it appeared that in two cases respondent had appropriated to his own use and spent or otherwise dissipated money of his clients. In the third case, the acts did not grow out of the relation of attorney and client, so as to form the basis for any summary order for the payment of money to complainant, but the transactions demonstrated a moral condition inconsistent with a proper appreciation and discharge of professional obligations.</p> <p>Held, that respondent should be disbarred.</p>

<p>(1) Insurance. Change of Beneficiary. Interpleader. Waiver.</p> <p>An insurance policy payable in case of death to wife of insured or to such other person as insured might thereafter designate, contained the provision that insured might change the beneficiary from time to time on filing with the company notice thereof in such form as the company might require, but no change of beneficiary, “is binding on the company unless filed at the home office and endorsed on the policy by the president or secretary.”</p> <p>The policy was originally given into the keeping of wife of insured. In order to make a change of beneficiary insured applied to his wife for the policy and upon her refusal to surrender same he filed with the company a paper nominating a new beneficiary. On interpleader: — ■</p> <p>Held, that the wife had no vested interest in the policy which would prevent insured from changing the beneficiary, provided he sufficiently complied with its requirements in effecting such change.</p> <p>Held, further, that under the facts as the wife had no right to the policy she could not validate her right to the fund by its unlawful retention, thus preventing insured from obtaining the endorsement of the company thereon.</p> <p>Held, further, that failing to get possession of the policy insured took all the other steps required to effect the change and any objection by the company was waived by the filing of the bill of interpleader.</p> <p>Held, further, that the payment of premiums on the policy by the wife was immaterial.</p> <p>Held, further, that a change of beneficiary was properly effected.</p>

<p> (1) Evidence. Replevin. </p> <p>In an action against a surety upon a replevin bond, evidence offered by defendant for the purpose of proving the bad reputation for veracity of the principal upon the bond who delivered it to the sheriff, in support of defendant’s claim that he had not executed the bond, is inadmissible where the principal was neither a party to the suit nor a witness.</p> <p> (2) Evidence. Hearsay. </p> <p>In an action against a surety upon a replevin bond, evidence as to a conversation between a witness and his son, neither of whom were parties to the case, where none of the parties were present at such conversation, was properly excluded as hearsay, where it was not offered for the purpose of contradicting a witness after having laid a foundation, nor as a foundation for the latter contradiction of the witness.</p> <p>(S) Replevin. Bonds. Return of Execution.</p> <p>An action upon a replevin bond may be brought immediately upon recovery of judgment in the replevin suit without awaiting the return of the sheriff' upon the execution issued therein.</p> <p> (4) Replevin. Bonds. Variance. </p> <p>In an action against a surety upon a replevin bond an allegation in the declaration that defendant as surety was jointly and severally bound with A as principal, and B as co-surety, although descriptive of the bond is not a material allegation which defendant was required to answer or which could mislead him in preparing his defence. Therefore where it appeared that B was in fact a woman, but that the name was written by a man representing himself as B, there was not such a variance as to be fatal to the suit.</p> <p>Fraud practiced upon a surety in a replevin bond by the principal in the forgery of the name of a co-surety would not release the surety from liability to the obligee who did not participate in the fraud and who had no knowledge of it.</p> <p> (6) Bonds. Replevin. Variance. </p> <p>An allegation in an action upon a replevin bond that the condition of the bond was that the plaintiff (in replevin) should pay such damages and costs as the defendant in replevin should recover against him, is not supported by a bond conditioned that the plaintiff (in replevin) should pay such damages and costs as said plaintiff (in replevin) should recover against him, but such condition being meaningless there is no obligation on the part of the principal or sureties to pay any damages or costs to the defendant in replevin in the event of his recovering them in such action, but where there is another condition in such bond that the plaintiff in replevin should restore the goods in case such was the final judgment, and the breach is properly laid, the variance does not amount to total failure of proof of the material allegations of the declaration, but in case of judgment for the penal sum of the bond execution should not issue for the damages and costs recovered by the plaintiff against the plaintiff in replevin.</p> <p>(7) Bonds. Replevin.</p> <p>Where a bond attached to a writ of replevin is defective as a statutory bond, the defendant in replevin should be permitted to enforce it as a common law obligation unless it is invalid as such.</p> <p>(i8) Bonds. Replevin.</p> <p>A sole defendant in a replevin suit should be the sole obligee in the replevin bond.</p> <p> (9) Bonds. Replevin. </p> <p>A replevin bond recited that the principal and sureties were bound to X in . a penal sum to be paid said X and to Y. Y was not a party to the suit. Held, that an action at law upon a bond can only be maintained in the name of the obligee and the suit was properly brought in the name of X.</p> <p> (10) Replevin. Variance. </p> <p>Not every variance between a declaration and proof will justify a verdict for defendant. What amounts to a fatal variance is a question of law for the court. Whether there has been such a variance in the case of conflicting evidence is a question of fact for the jury to be determined by them after instruction by the court.</p> <p> (11) Amendment. Pleading. </p> <p>The superior court has authority to permit an amendment to a declaration adding a party plaintiff, after hearing upon a motion for a new trial, upon terms protecting rights of adverse parties. Suchruling is subject to review.</p>

<p>(I) Replevin. Contracts. Sales. Rescission.</p> <p>After plaintiff had shipped two carloads of horses from I to P in the name of H, the payment of which had been guaranteed by defendant, and while he was preparing to ship a third carload he telegraphed defendant, “H had good load bought worth the money if you will stand for this load we will make other arrangements too late to do it this load answer quick can bill them to you if you say so.” Defendant replied, “You can shiphorses inmyname.” Plaintiff telegraphed “If we ship horses in your name will you guarantee draft answer quick” to which defendant replied, “I will guarantee draft.”</p> <p>Through some error, the horses were shipped in the name of H, but the mistake was unknown to plaintiff until two weeks later. H knew that the horses were to be shipped in name of defendant, and believed they were so shipped until they arrived in P.</p> <p>Before it was known to H or defendant that horses had not been shipped in name of defendant, H at request of defendant, gave him a bill of sale of the horses, which had been delivered on the previous shipments, and also the horses included in the last shipment which had not then been unloaded. No payment was made by defendant to H, and the bill of sale appeared to have been made as security for the guaranty by defendant of the payment for the three shipments.</p> <p>Thereafter, H paid the charges on the third shipment and turned them over to defendant, who disavowed his guaranty, and plaintiff replevied the horses.</p> <p>Held, that the horses were sold to H and the plan to ship them in name of defendant was to secure him upon his guaranty, but this sale to H, and delivery to him was upon the express condition that payment of the draft should be guaranteed by defendant, and the mistake in shipment would not constitute a waiver of this condition by plaintiff, for until there had been compliance with the condition, property in the horses did not pass to H.</p> <p>Held, further, that upon failure of H to pay the draft or to furnish the guaranty plaintiff might retake possession, and the possession of defendant under the bill of sale from H would not prevent such taking.</p> <p>Held, further, that as defendant had obtained from H both possession of the horses and such title as he had in them as security', he might be held to have waived any irregularity in the shipment, and be bound under his obligation, but even in such case, plaintiff might properly retake possession, for defendant having repudiated his contract, plaintiff was at liberty to treat it as abandoned and the contract of sale which was conditioned upon it, as rescinded.</p>

<p>(1) Constitutional Law.</p> <p>In construing statutes in connection with some provision of the constitution it devolves upon the court to bring its construction, if possible, within the terms of the constitution.</p> <p> {2) Constitutional Law. Elections. Payment of Taxes. </p> <p>Cons. R. I. Art. VII of amendments, provides that no person shall be allowed to vote in the election of the city council of any city unless he shall, within the year next preceding have paid a tax assessed upon his property therein, valued at least at $134.</p> <p>The statute requires that the payment of a personal property tax, to qualify a voter to vote for members of a city council must be made within twelve months of the date of election and before the sixth day preceding the same.</p> <p>Gen. Laws, 1909, cap. 7, § 22, as amended by Pub. Laws, 1910, cap. 640, § 1, provides that no person claiming the right to vote upon the payment of a tax assessed against him upon property, for members of a city council, shall be admitted to vote unless upon the production of a certificate from the collector of taxes, town treasurer or town clerk, of the place in which he resides, that before the sixth day preceding the day of such voting he has paid such tax assessed against him for and within such year.</p> <p>Upon petition filed under Gen. Laws, 1909, cap. 8, § 29-31, praying that names erased by a board of canvassers from a voting list might be restored thereto.</p> <p>Held, that the word “assessed” in Art. VII of amendments referred to a tax which had come into existence through some lawfully defined method of ascertaining it, and that it was the payment rather than the assessment of the tax which furnished the basis in calculating the period of twelve months, and therefore petitioner who paid a tax on January 13,1913, which had been assessed against him as of August 1, 1912, was entitled to vote at an election November 4, 1913.</p> <p> (S) Elections. Constitutional Law'. </p> <p>Gen. Laws, 1909, cap. 7, § 22, as amended by Pub. Laws, 1910, cap. 640, § 1, provides that no person claiming the right to vote upon the payment of a tax assessed against him upon property, for members of a city council, shall be admitted to vote unless upon the production of a certificate that before the sixth day preceding the day of such voting he has paid such tax assessed against him therein for and within such year.</p> <p>Held, that, although the language of the act might seem to fix the date of the assessment as the starting point in calculating the period of 12 months, such construction would impose upon a taxpayer a condition in excess of the constitutional provision — Cons. R. I. Art. VII of amendments.</p> <p>Held, further, that considering the provisions of cap. 7, § 22, as amended, independent of any constitutional limitation, the words “assessed against him therein” may be reasonably said to refer to a tax the amount of which has been ascertained by competent -municipal authority and the words “for and within such year” indicate that such tax must have been paid within the year and must relate to the year in which it is paid, so that a tax assessed against petitioner in 1912 and which was paid by him in 1913 was a tax for and within the year which had not expired on November 4, 1913, the date of the election at which he claimed the right to vote.</p> <p>Opinion to the Governor, in re Personal Property Voters, 24 R. I. 630, distinguished.</p>

<p> il) Amendments. </p> <p>'The court may properly permit an attorney, during the progress of a trial, to sign and endorse the declaration filed by him, since such act amounts to no more than the curing of a mere clerical omission, and such amendment is not prohibited by Rule 2 of the Superior Court.</p>

<p> {1) Negligence. Carriers. </p> <p>Plaintiff was seated at the end of one of the smoking seats of an electric car. The guard rail was down. Plaintiff in flicking the ashes from his cigar extended his left hand over the guard rail and a sufficient distance beyond the side line of the car to bring the heel of the palm of his hand in contact with the trunk of a tree standing beside the track. Plaintiff had been a passenger on that line once or twice a week for twelve years and admitted that during that time he had known of the trees along the side of the track. He also testified that when he extended his hand he did not look to see where it was going:—</p> <p>Held, that the guard rail was a notice to passengers to keep their bodies and limbs within the same and not expose themselves beyond the line thereof.</p> <p>Held, further, that plaintiff was guilty of contributory negligence.</p> <p>Held, further, that a nonsuit was properly granted.</p>

<p>(1) Master and Servant. Evidence. Res Gestee.</p> <p>In an action against a master for the death of a servant caused while attempting; to place a belt upon a revolving pulley statements by deceased a few minutes, after the accident that he told the “boss” when he went upstairs to get. him, that he did not want to go down stairs and that when he went down with the “boss” and was told to put on the belt he told him that he did. not want to do it and he forced him to do it are inadmissible as part of the res gestee, since they relate to a state of mind of deceased at a time prior to the injury, in a part of the mill other than the room where the-injury took place and throw no light upon the nature or cause of the injury,, and their admission constituted reversible error.</p> <p>(2) Master and Servant. Evidence. Res Gestee.</p> <p>In an action against a master for the death of a servant where it was alleged, in some counts of the declaration that deceased was taken from his regular-work and told to hurry and put on a belt; that this was not a part of his-work and he was not accustomed to it, statements by deceased shortly after the accident, that he did not want to go down stairs and that when he went down and was told by the “boss” to put on the belt he objected, are not admissible as proof of such allegations, especially since plaintiff's-, own witnesses had previously testified that intestate was a skillful man accustomed to such work.</p>

<p>(1) Divorce. Alimony. Receivers.</p> <p>In a petition for divorce petitioner prayed for alimony, to be charged on respondent’s estate. Pending the trial she filed a supplemental petition, alleging that respondent had conveyed his real estate by deeds prepared after the filing of the petition, for the purpose of preventing petitioner from obtaining alimony, and that the releases of dower were not in fact executed by her and that the grantee knew of the fraudulent purpose of respondent and paid no consideration to respondent and petitioner prayed for the establishment of a lien upon the real estate.</p> <p>Later petitioner filed a further petition, alleging that large amounts were due respondent, from contracts for the sale of such real estate, but that respondent had diverted and concealed a large portion thereof and asked that respondent and his grantee might be enjoined from conveying the real estate, assigning the contracts, collecting moneys thereon and also for the appointment of a receiver. Upon this last petition respondent was enjoined from conveying or encumbering the real estate. Thereafter the grantee of the property, the X. Co. was made a party and after final decree had been entered granting petitioner a divorce a vinculo, she renewed her petition for the appointment of a receiver, and a receiver of the property of the respondents was appointed to take control of all contracts and collect the moneys due thereon. Upon appeal by respondent X. Co. from the decree:</p> <p>Held, that proceedings to obtain an award of alimony were equitable in their nature and ancillary to the original proceedings for divorce, and therefore an appeal under General Laws, 1909, cap 289, § 34, would properly he.</p> <p>Held, further, that the Superior Court as a part of its jurisdiction in divorce and alimony was clothed with all the powers of a court of equity properly incidental to the equitable determination of the property rights involved in an award of alimony.</p> <p>Held, further, that while divorce proceedings are purely statutory, the Superior Court had under the statutes complete jurisdiction both to make the respondent X. Co. a party to such ancillary proceedings, to grant the injunctions and to appoint the receiver.</p> <p>(2) Divorce. Alimony.</p> <p>After a divorce has been granted for fault of the husband if the wife waives dower, alimony is chargeable upon the estate of the husband, as if he were dead, and his whole “estate” is to be ascertained that the corut may know the amount and nature of it in order to fix the proper amount of alimony, and such proceedings are equitable in their character, and the court may properly summon in an alleged fraudulent grantee’ of the property of the respondent.</p> <p>(3) Divorce. Alimony. Creditor’s Bill. Equity.</p> <p>After a decree for divorce has been granted for fault of the husband, upon the question of alimony to be awarded petitioner, while the latter is not a technical “creditor,” yet inasmuch as she has waived her dower and her only relief is a claim for alimony chargeable upon the estate of the husband, she has the capacity of becoming a creditor in case of a decree in her favor and is entitled to the protection of the court to prevent the diversion of the husband’s estate until it can be ascertained to what she is entitled and upon what it may be charged, in a case where the husband had notice of her claim for alimony since the original petition was filed and as alleged made a fraudulent conveyance of his property.</p> <p>(4) Divorce. Alimony. Injunctions. Receivers.</p> <p>As it is the duty of the Superior Court upon a petition for alimony to ascertain the “estate” of the husband, it may by its interlocutory decrees control that “estate” by means of injunctions and receivers, to prevent its diversion and dissipation.</p> <p>(5) Divorce. Alimony. Creditor’s Bill. Choses in Action.</p> <p>Where upon proceedings to. determine alimony it appeared that the husband was engaged in selling real estate by installment contracts and had sold large numbers of lots under such contracts, retaining title until payments were fully made, and had as alleged conveyed his interest fraudulently to the X. Co. which thereafter made similar contracts of sale, and made the collections, thus converting the real estate into money and removing it from the jurisdiction of the court, a decree appointing a receiver to take control of such contracts and to collect the moneys due thereunder, for the benefit of any hen which petitioner might establish thereon, is not open to the objection that such contracts are choses in action, and not subject to the process of equity even upon a creditor’s bill, since the petitions show a fraudulent scheme to prevent petitioner from securing alimony from the husband’s estate, and facts showing that the respondent grantee was a trustee for the husband of his estate, including said contracts, and because under the statute, said contracts were a part of the “estate” of the husband upon which the claim for alimony was chargeable.</p> <p>(6) Divorce. Alimony. Receivers.</p> <p>Where upon proceedings to determine alimony the petition charged that the husband had fraudulently conveyed his estate to a foreign corporation for the purpose of preventing petitioner from obtaining alimony out of such estate, petition seeking relief by injunction to restrain the respondents from conveying such property and for the appointment of a receiver to take control of contracts for the sale of lots and to collect the money due thereon is not objectionable because not alleging that said respondent corporation was insolvent.</p> <p>(7) Divorce. Alimony. Obligation of Contracts.</p> <p>Where upon proceedings to determine alimony it appeared that the husband was engaged in selling real estate by installment contracts and had sold large numbers of lots under such contracts retaining title until payment was fully made, and had as alleged conveyed his interest fraudulently to the X. Co. which thereafter made similar contracts of sale, and made the collections, a decree appointing a receiver to take control of such contracts and collect the moneys due thereunder for the benefit of any hen which petitioner might establish thereon and restraining respondents from conveying does not impair the obligations of the contracts between respondents and their conditional vendees, where the decree provided that the injunction should be vacated in all cases where the receiver was satisfied that full payment had been made under the contracts and filed a certificate to that effect.</p>

<p>(1) Liens. Parties in Interest.</p> <p>A party who is not interested in the subject matter of a suit to enforce a warehouseman’s lien, not being aggrieved by the decree cannot appeal therefrom.</p> <p>(2) Equity. Corporations. Stockholders. Liens. Parties in Interest.</p> <p>X being the president, treasurer and a director of a corporation and the owner of 1,750 shares of the capital stock, at a meeting of the directors offered to exchange his stock for the note of the company for $18,500 to be secured by mortgage on its property, X to pay a note of the company for $1,000 held by a bank and this offer was accepted; and it was agreed that such mortgage should not be recorded. Thereafter X resigned as president and treasurer, and at a later meeting of the directors, X not being present it was voted that upon the surrender of the mortgage given to X a new mortgage be executed for the same amount to Y for the term of five years, and said mortgage was executed and recorded. Y subsequently became a member of the board of directors. Upon bill by the corporation seeking the cancellation of the mortgage, decree was entered directing that the note and mortgage be surrendered for cancellation and the stock returned to X, and the decree was affirmed upon appeal. Thereafter X sought to review the decree to make it applicable to the first mortgage and not to the second, the latter having been substituted for the first, and the petition was denied by the Superior Court and X did not appeal. In an action to enforce a warehouseman’s lien against the property included in the mortgage, in which action X had been named as a respondent, as assignee of Y, decree was entered in favor of the lienor and X appealed.</p> <p>fíeM,that the matters covered by the decree of the Superior Court in the action of the corporation against X were res adjudicata in the lien proceeding, for while the first mortgage was not mentioned specifically in the former decree, being unrecorded it was void except as between the parties and furthermore had been surrendered and the second mortgage taken in its place, but in any event it was equally bad upon equitable grounds as the second, and was. disposed of in the prior decree.</p> <p>Held, further, that whether or not X had complied with the decree by surrendering the mortgage for cancellation was immaterial as his failure so to do could not affect his rights in the present action.</p> <p>Held, further, that it being res adjudícala he had no valid mortgage, he had no interest in the lien proceeding and was not entitled to appeal.</p>

<p>(1) Constitutional Law.- Railroads. Eminent Domain. Construction.</p> <p>An act designed for the abolition of grade crossings provided in its various sections for the cost, the taking of the land and the other details of the work, using the term throughout the act “railroad corporations” without using any corporate designation.</p> <p>Held, that the act was passed with reference to the state of transportation facilities at the locality affected, which was in its general features a matter of common knowledge and within the knowledge of the legislature, i. e. that two corporations, the P. & W. R. R. Co. and the B. & P. R. R. Co. were owners of the railroad location and the railroad was operated by the N. Y., N. H. & H. R. R. Co. under a long lease.</p> <p>(2) Constitutional Law. Eminent Domain. Railroads. Statute of Construction.</p> <p>Pub. Laws, cap. 896, “An act providing for the abolition of certain grade crossings in the cities of Pawtucket and Central Falls, passed at the January Session, 1912, ” established a commission and provided that such commission should determine which of the parties interested should do the work, or should apportion the work to be done between each of the cities and railroad corporations interested; that the railroad corporations should pay a certain percentage of the cost and the remainder of the expense should be apportioned between the cities; that the commission should return its decision showing the proposed lay-out to the Superior Court and the decree of said court confirming such decision should be final; that the decree of the court confirming such decision should constitute a taking of the land specified in said decree; that all damages which might be sustained by any person by the taking of the land for the railroads should primarily be paid by the respective railroad corporations, and if the parties interested could not agree upon such damages the commission should assess the same and report to the Superior Court such disagreement and the amount of damages by them .assessed against the railroad corporations and the cities, respectively, and any party aggrieved by such assessment might have such damages determined by a jury on petition filed within one year after the filing of said report, in the same way as damages are determined which are caused by the taking of land for public ways in cities; that the Superior Court should have jurisdiction in equity to enforce compliance with the provisions of the Act. This act was amended by caps. 1008 and 1009 of the Public Laws, passed at the January Session, 1913, providing for possession to be taken by either of the cities or by any railroad corporation upon giving security under the direction of the Superior Court, and that the commission might report its awards from time to time, and might be required to make partial reports on petition of any party in interest.</p> <p>Under the provisions of this Act the commission decided that the land should be taken by the N. Y., N. H. & H. R. R. Co., a railroad corporation operating under a lease from two railroad corporations which owned the railroad location. Before any attempt was made to secure possession, security was fixed by the court after notice to the parties under the provisions of cap. 1008.</p> <p>Held, that under the terms of the Act the railroad corporation which took the land was made liable for the payment of the compensation to the owner.</p> <p>Held, further, that although the Act used the words “railroad corporations” it would, to carry out the legislative intent, be construed under Gen. Laws, 1909, cap. 32, § 3, to embrace the singular number.</p> <p>Held, further, that after the confirmation by the Superior Court of the decision of the commission, a definite corporation was made liable for the damages sustained, which corporation could by the Superior Court be compelled to make payment either under a voluntary agreement of the parties or after a jury trial. At the time of the passage of cap. 896, General Laws 1909, cap. 215 § 58, provided that no railroad corporation should enter upon or use the land located for the use of their railroad until such corporation should have given such security for the payment of all such damages as should be finally awarded for such land and for costs as should be required by the commissioners appointed to estimate damages.</p> <p>Held, further, that cap. 896 of the Public Laws did not repeal General Laws of 1909, cap. 215, § 58, and was not in conflict with it.</p> <p>(3) Constitutional Law. Eminent Domain. Giving Security.</p> <p>Held, further, that cap. 896 was not repugnant to Article 1, section 16 of the constitution: “Private property shall not be taken for public uses without just compensation” by reason of its omission of the provision for the giving of security by the railroad corporation before entry upon the land, but that with Gen. Laws, 1909, cap. 216, § 68, the statutory provision for the giving of such security was sufficient to meet the requirements of the constitution.</p> <p>(4) Constitutional Law. Payment of Compensation. Eminent Domain.</p> <p>Held, further, that the Act was not repugnant to said Article 1, § 16, in that it did not provide that payment or tender or deposit of just compensation should precede or be concurrent with the entry upon the land intended to be taken, since the legislative power is not limited by the constitution as-to the proceeding to be followed in the taking of private property for public uses and in causing just compensation to be made. The occupation of property as an initiatory proceeding to an acquisition of the title to it does, not amount to a taking of it within the contemplation of Art. 1, § 16,, since the owner can only be divested of his title by the payment of compensation, and although security be given, the provision of the constitution cannot be made void and of no effect by reason of failure of the security for compensation.</p> <p>In the absence of a distinct provision of the constitution requiring payment of compensation to precede the entry upon the property, such compensation need not be paid or tendered before entry upon the property, but the owner is entitled to reasonable, certain and adequate provision for obtaining such compensation, either in the act under which such property is to be taken or in existing law before his occupancy is disturbed.</p> <p>Held, further, that said Act was not objectionable because no time was fixed within which the commission must make its report of assessments of damages, since it could not be assumed that the commission would fail in its duty to report with due promptness and there was due statutory provision for security for compensation before entry, and because under the provisions of cap. 1009 of the Public Laws, in amendment to cap. 896, the commission was required on petition of any party in interest under the direction of the court to make separate reports of the damages assessed by them.</p> <p>(5) Constitutional Law. Jury Trial. Eminent Domain.</p> <p>Held, further, that the Act was not objectionable in providing for the assessment of damages by a commission which had already taken part in negotiations to acquire the land, since any dissatisfied land owner had the right to a jury trial, with the further right to have the rulings of the trial court reviewed by the Supreme Court.</p> <p>(6) Eminent Domain. Railroads. Constitutional Law.</p> <p>Held, further, that said Act was not repugnant to Sec. 1, Article 9 of the Amendments to the Constitution, providing: “No corporation shall be created with power to exercise the right of eminent domain except by special act of the General Assembly upon petition for the same, the pendency whereof shall be notified as may be required bylaw.” The inference of the legislative intent not to form a corporation could be inferred, because the commission could fully perform its duties without corporate existence.</p> <p>(7) Final Revisory Power.</p> <p>Held, further, that said Cap. 896 was not repugnant to Sec. 1, Art. 12 of the Amendments to the Constitution in that by the provision “the decree of said court (The Superior Court) confirming said decision shall be final and binding” it purported to deprive the Supreme Court of its final revisory and appellate jurisdiction, since the word “final” must be construed to mean that the decree was final in the Superior Court, but subject to revision by the Supreme Court, but even if the act purported to make the decree of the Superior Court final and beyond review, the Supreme Court would nevertheless by virtue of Art. 12 of Amendments have power to review the decision by proper proceedings.</p>

<p>(1) Contracts. Sales. Implied Warranties.</p> <p>Where a boiler was sold under its trade name “ l-S-28-5 section Ideal Sectional Boiler,” although the vendee contracted for the boiler to be used for a particular purpose made known to the vendor, and in so doing relied upon the knowledge and skill of the vendor, there is no implied warranty of the fitness of the boiler for that particular purpose, since par. 4 of cap. 261, § IS, Gen. Laws, 1909, amounts to a proviso-limiting the provisions of par. 1 of said section.</p>

<p>(1) Mortgages. Bona Fide Holders.</p> <p>The X Company executed a mortgage for $500, to Z, containing the provision that “this conveyance is made subject to a prior mortgage of $4,000 given by this grantor to A and B. ” The mortgage to Z was dated and acknowledged October 21, 1908, and recorded January 21, 1911. At the time of its execution there was no other mortgage on the property, but later a mortgage for $3,500 was negotiated, covering not only the property of the X Company, but also that of A and B, individually, and the proceeds were applied to the property of the X Company. None of the proceeds were received by either A or B. This mortgage was made to P and later assigned to R, and was made and recorded prior to the recording of the $500 mortgage. Subsequently, the $3,500 mortgage was assigned to B’s brother and A’s wife, and such assignees discharged from its operation the individual property of A and B, without consideration from them. On bill to foreclose the $500 mortgage and to restrain the foreclosure of the other.</p> <p>Held, that the fact that the last assignees' of the $3,500 mortgage acquired it from a bona fide holder without notice was not sufficient to make them bona fide holders, but as they had knowledge of the $500 mortgage and of the conditions under which it had been obtained, they occupied no better position than their assignor would have had with like notice.</p> <p>(2) Marshalling of Securities. Bona Fide Holders.</p> <p>Held, further, that under the rule as to the marshalling of securities, the fact that the present assignees of the $3,500 mortgage had released the property of A and B would not defeat the prior security of complainant under his mortgage.</p> <p>Held, further, that under the rule that a title could not be conveyed free from prior equities back to a former owner who was charged with notice, considering the relationship between the present assignees and A and B, two of the original mortgagors, and their failure to rebut the natural inference of knowledge of the $500 mortgage, they could not be regarded as bona fide holders without notice.</p>

<p>(1) Taxation. Payment Under Protest. Assessors Notice.</p> <p>A payment of a tax made after a collector of taxes had levied upon property and advertised it for sale at public auction, is a payment under compulsion, and the addition of a protest at the time of payment would not strengthen the right of the plaintiff to recover.</p> <p>(#) Taxation. Assessors’ Notice. Payment Under Protest.</p> <p>Where the notice of assessors of taxes specifies no time as the time of valuation and ownership, the assessment must be deemed to have been made on the day following the last date on which the taxpayers were notified to bring in an account of their ratable estate and hence is insufficient, as the time for rendering accounts must follow the day and hour established for the valuation and ownership of the ratable estate of the taxpayer in order that he may be able to render a true and exact account.</p> <p>(S) Taxation. Payment Under Protest.</p> <p>Taxes paid under duress or compulsion may, if illegally assessed, be recovered back, in a proper action, though no specific protest accompanies the payment thereof.</p>

<p>(I) Landlord and Tenant. Tenant From Year to Year.</p> <p>Where a lessee for years holds over his term and becomes a tenant from year to year, the tenancy is subject to all the covenants and stipulations contained in the original lease, so far as they are applicable to the new condition of things.</p> <p> (S) Landlord and Tenant. Transfer of Reversion. Rents. </p> <p>The transfer of a reversion does not carry rents already accrued, but only such as have not yet become due.</p> <p>(3) Landlord and Tenant. Transfer of Reversion.</p> <p>The rent of premises for the year beginning February 1, 1909, was due August 1, 1909, and on December 30, 1909, the reversion was assigned, and in May, 1910, the assignee entered upon the premises and removed a building thereon:</p> <p>Held, that at the time of entering upon the premises, there was no rent due from the lessee to the assignee and the latter had no standing as landlord or reversioner, giving him the right to reenter on the ground that rent was in arrear for fifteen days, and as lessee had not been given the statutory notice to quit, the assignee was a trespasser.</p>

<p>(1) Estoppel.</p> <p>Estoppel in pais usually arises from the misrepresentation or concealment of material facts on the part of the one to be estopped and the primary ground is that it would be fraud in a party to assert what his previous conduct has denied when others have acted on the faith of that denial.</p> <p> (¡B) Insurance. Award. </p> <p>An agreement for submission to appraisers is at the same time the source and limitation of their authority and the award to be binding must in substance and in form conform to the submission.</p> <p>(8) Insurance. Award.</p> <p>An agreement for submission to appraisers to determine a fire loss is made to secure two things, first an appraisement, and second, an award which is the judgment based upon the appraisement.</p> <p> (4) Insurance. Award. Estoppel. </p> <p>In an action on a policy of fire insurance, which provided for the submission of disputes to appraisers, evidence considered, and held that while the agreement for arbitration contained no provision expressly requiring an itemized appraisal, by implication it showed that such a form of appraisal was con- , templated, and the presumption was not warranted that the form of award, if presented by the company, was intended or calculated to deceive or mislead the appraisers or the insured as to the character of the appraisement and award required, so as to estop the company from demanding an itemized award which it was entitled to under the policy.</p> <p> (5) Insurance. Award. Failure of Appraisal. </p> <p>Where a policy of insurance requires the determination, of the loss in case i of disagreement to be by appraisement and award, and makes this a condition precedent to a right of action on the policy, if the award is invalid it is incumbent on the insured -and not the insurer to take further steps to secure a new award.</p> <p> (6) Insurance. Rights of Mortgagee. </p> <p>A policy of insurance provided that the loss should be payable to the mortgagee as his interest may appear and contained the condition “this insurance as to the interest of the mortgagee shall not be invalidated by any act or neglect of the mortgagor or owner of the property.”</p> <p>The policy required the “insured” to make proofs of loss. An award of , appraisers was invalid through no fault of either insured or the company, by reason of not giving an itemized list of the property damaged, and insured had not taken the steps incumbent upon him to obtain a valid appraisement. In an action by mortgagee upon the policy:—</p> <p>Held, that if the view that the mortgagee was under no obligation to make proofs of loss was disregarded, even under the view that it might become his duty to act at some stage of the proceedings, where there was no evidence that he had any knowledge of the failure of the mortgagor to prosecute the arbitration to a lawful determination, he could not reasonably be called upon to perform any act respecting the adjustment of the loss; so that under either view, mortgagee was protected by the mortgage clause attached to the policy and by its terms had a right of recovery.</p> <p>(7) Insurance. Proof.</p> <p>In an action upon a policy of fire insurance by a mortgagee aminvalid award of arbitrators under an agreement between the insurer and the owner was properly excluded, whether offered for the purpose of showing performance of a condition precedent or to establish the amount of loss or both, and the amount of plaintiff’s loss must be otherwise proved.</p>

<p> (1) Releases. Construction. </p> <p>The rules of construction applicable to a release are the same at law and equity, the primary rule being that the intention of the parties, as shown by the instrument itself in its entirety and not by matters outside of the writing must govern. It is to be construed from the standpoint of the parties at the time of its execution and evidence is admissible to show their surrounding circumstances.</p> <p>The relations between the parties; the nature and character of the existing disputes, the actions then pending and their subject matter and the claims to be investigated and passed upon may all be considered in determining the construction of the release.</p> <p> (2) Releases. </p> <p>The personal and financial relations between the parties at the time of the execution of a release, including the provisions of the instrument itself as to the transfer of photographs and letters, showing the purpose on the part of the maker to surrender all tokens of a past family intimacy, considered and held, that at the time of its execution it was intended to effect a complete severance and termination of all relations between the parties, and to be a general one and not limited to a particular transaction.</p> <p>(S) Releases.</p> <p>By an instrument in the usual form the maker released all claims both at law and equity which he had against the releasees in their individual capacities and as the executrices of X and against the estate of X which he had whether as legatee under the will of X or in any other capacity.</p> <p>Held, that from the language of the instrument and from the surrounding circumstances it was intended to be a general release and not limited to the legacy.</p> <p>(4) Releases.</p> <p>By will a legacy was left to A in trust for B. After the receipt of the legacy by A, B entered into an agreement with A that she might have the use of the money and keep as her own a\l interest and income until such time as the indebtedness of B to A theretofore or thereafter incurred had been paid.</p> <p>Subsequently B gave A a release “of all claims which he ever had, then had or ought to have for or by reason or means of any matter or thing from the beginning of the world to the day of date.”</p> <p>Held, that the release was broad enough to extinguish all rights of B to said legacy.</p>

<p>(1) Poor Debtor’s Oath.</p> <p>Where after one application of a committed debtor to take the poor debtor’s oath had been denied, a second application was made upon which the justice issued a citation to the committing creditor containing the statement that there had been a change of circumstances after taking out the first citation in that the debtor had made a general assignment for the benefit of his creditors, upon writ of prohibition to restrain the justice from hearing the application, the court will not consider in such proceeding facts tending to show that property alleged to have been transferred by debtor in fraud of creditors had not been brought under the control of the assignee and that no other property of debtor had been actually conveyed to said assignee.</p> <p> (2) Poor Debtor’s Oath. Jurisdiction. </p> <p>In order to obtain another citation after denial of an application to take the poor debtor’s oath, the debtor must submit to the magistrate proof of some change of circumstances since the taking out of the first citation, but the magistrate is made the sole judge upon ex parte hearing of the facts alleged as showing such change, and if in his opinion such change has occurred it is his duty to issue the citation.</p> <p>(S) Poor Debtor’s Oath. Change of Circumstances.</p> <p>An assignment for the benefit of creditors would constitute such a change of circumstances under Gen. Laws, 1909, cap. 326, sec. 11, as would warrant the issuance of another citation to the committing creditor, provided the assignment appeared to the satisfaction of the magistrate to be a valid assignment in proper form.</p> <p> (4) Poor Debtor’s Oath. Change of Circumstances. </p> <p>Upon hearing of a petition to take the poor debtor’s oath, upon the merits, the question whether upon all the facts there has been such material change of the debtor’s circumstances as would entitle him to a discharge, since the taking out of the first citation is to be determined, without regard to the finding of the magistrate upon the preliminary ex parte consideration of the matter.</p> <p>(5) Poor Debtor’s Oath. Transfer in Fraud of Creditors.</p> <p>Upon a second petition to take the poor debtor’s oath if it is established that debtor has transferred property in fraud of creditors, the oath should not be administered, although the magistrate may be satisfied that there has been a change of debtor’s circumstances since the hearing on his former petition.</p>

<p> (1) Submission to Decision. Jury Trial. </p> <p>The submission by a party to an entry of “decision” against him in a district court without trial upon the merits, does not deprive him of the right to claim a jury trial thereafter.</p>

<p>(1) Master and Servant. Fellow Servant.</p> <p>Plaintiff, a blacksmith’s helper, by direction of his employer was engaged in repairing for defendant an iron bucket to its dredger, which bucket attached by chains to a boom had been placed by defendant upon a pile of coal on the deck of a scow which was moored alongside, and rested upon the bottom edges of its jaws, which edges were a few inches apart. Plaintiff, while standing inside the bucket and holding a hot rivet in place, to assist him in pressing upon the rivet, owing to the smooth inside surface of the bucket placed one foot on the side of the bucket and the other between the edges of the jaws at the bottom. While in this position the superintendent of defendant caused the boom to swing and caught plaintiff’s foot between the edges of the jaws.</p> <p>From the necessities of the situation and by direction of defendant, its employees operating the dredging machinery while the repair work was being done, were placed under the limited control of plaintiff’s master.</p> <p>Held, that defendant’s superintendent at the time of the accident was not a fellow servant of plaintiff.</p> <p> {%) Master and Servant. Fellow Servant. </p> <p>The test for the purpose of determining whether a limited control over a servant in the general service of another, effects a transfer of such employee from the service of his general master to that of the person exercising control, is, whose is the work which the servant is performing and hence who is really in the control of the servant. In the person whose affairs are being conducted is the real control, although for convenience the authority to give general directions may be conferred upon another.</p> <p> (8) Master and Servant. Fellow Servant. </p> <p>In the case at bar evidence considered and held, that defendant was the only one that could move the bucket, if in the course of the repair work it became necessary to do so, and was loaning the work of its machinery and workmen, but not the workmen themselves for the enterprise in which both it and the master of plaintiff were jointly interested.</p> <p>Held, further, that it being a part of the 'arrangement that defendant should render such assistance, in that respect it should be considered as an independent contractor who has undertaken to operate its machinery when requested by plaintiff’s master, and the power given the latter to direct the servants of defendant as to the movement of the bucket was a necessary condition for the proper performance by defendant of its agreement and the superintendent of defendant in following the directions of the servant of plaintiff’s master was acting for the defendant in carrying out its agreement.</p> <p> (4) Master and Servant. Fellow Servant. ■ </p> <p>Where the control of a person other than the general master is one of direction merely as-to result, and not as to the mode or manner of doing the work the servant acting under such control remains the servant of his general master.</p> <p> (5) Master and Servant. Due Care. Proximate Cause. </p> <p>On the above state of facts evidence considered and held to show that plaintiff used reasonable care in the circumstances and that the movement of the bucket by the superintendent of defendant without proper warning to the plaintiff, was the proximate cause of the injury, which the jury was warranted in regarding as negligence.</p> <p> (6) Master and Servant. Assumed Risks. </p> <p>Where on the above facts the only danger reasonably to be apprehended by plaintiff from his failure to place a plañir in the bucket would be such as might arise from his slipping on the inside of it or from the movement of the jaws caused by the action of the waves, he only assumed the risk of these consequences, and did not assume the risk of the bucket being moved by defendant’s servant without warning to him, but had a right to presume that a proper degree of care in that regard would be exercised.</p> <p>(7) Master and Servant.</p> <p>Whether an act can be regarded as having been done in conformity with an order-previously given will depend upon its relation to the order in point of time and upon the other conditions.</p> <p> (8) Master and Servant. Limited Control. </p> <p>Where a servant of defendant was placed under a limited control of plaintiff’s master, while defendant might claim freedom from any liability where his servant had. forthwith complied with an order given him by the master of. plaintiff, he cannot escape responsibility where his servant waited an hour after the order before complying with it, but in such case the duty rested upon defendant to see that proper warning was given and that the order with safety could be executed, and a jury on such state of facts would be justified in finding that the act was not done in compliance with the order.</p>

<p> (1) Prohibition. Poor Tort Debtors’ Oath. </p> <p>Where defendant in an action of trespass on the case for slander, upon a writ issued out of the Superior Court, after being surrendered by his bail, had remained in jail for a period of more than six months he is entitled to petition for the benefit of the poor tort debtors’ oath under the provisions of Gen. Laws, 1909, cap. 327, § 4.</p> <p> ($) Poor Debtors’ Oath. </p> <p>A defendant in an action of trespass on the case for slander, upon a writ issued out of the Superior Court, committed to jail upon surrender by his bail, is excluded by Gen. Laws, 1909, cap. 326, § 10, from those entitled to take the poor debtors oath by the provisions of Sec. 1 of said chapter.</p>

<p> (1) Bills and Notes. Statute of Limitations. New Promise. </p> <p>In order to remove the bar of the statute of limitations it must be shown that remittances by the debtor were made with the intention of having them applied to the payment of the indebtedness, and the mere endorsement of payments on the back of a note by the payee is insufficient as evidence of a new promise.</p> <p> (8) Pleading. Statute of Limitations. New Promise. </p> <p>'To the plea of the statute of limitations plaintiff replied “that the defendant did within six years next before the commencement of the suit undertake and promise,” etc.</p> <p>Held, that the replication was sufficient to set forth a new promise and plaintiff was entitled to offer such evidence of a new promise as might otherwise be properly admitted.</p> <p>(8) Statute of Limitations. New Promise. Evidence. ,</p> <p>3n an action upon a promissory note where plaintiff relied upon a new promise in bar of the statute of limitations, a letter sent more than six years before the commencement of action would not be evidence of a new promise to pay the balance claimed to be due in the action since such new promise would also have become barred by the statute, but might be admissible as tending to fix the amount due on the note and useful in construing the later correspondence relied upon to show the new promise.</p> <p> (4) Statute of Limitations. New Promise. </p> <p>’Whether or not a new promise in bar of the statute of limitations can be reasonably implied from correspondence is a question of fact for the jury.</p> <p> (5) Charge of Court. Exceptions. </p> <p>The action of the trial court in reading from a reported case, in charge to the jury, was not prejudicial to appellant.</p>

<p>(1) Schools.</p> <p>Charter of'the city of Cranston provides that the city council shall “fix the salaries of its employees except as herein provided,” the proviso being: “Provided, that the expenditures and money appropriated for the support and maintenance, improvement and keeping in repair of the school property shall be by and under the direction of the school committee of said city. ”</p> <p>Held, that the power to engage teachers accompanied by the power to fix their salaries was vested in the school committee.</p> <p> {$) Schools. Contracts. Fiscal Year. </p> <p>The fixing of the fiscal year of a city is purely a matter of convenience in the handling of its financial and business transactions and exerts no force upon a contract made with a teacher for her services by the school committee which was by charter vested with the authority to engage and fix the compensation of the teachers, nor does the right to collect the salary covered by an order of the school committee expire with the close of the fiscal year.</p> <p>(3) Schools. Contracts. Fiscal Year.</p> <p>Where there was a sufficient amount in the hands of a city treasurer, from the appropriation for the past fiscal year, to pay a salary order of a school committee for services rendered during that year, the question whether the treasurer had authority to pay such order from the appropriation for the following fiscal year is not decided.</p>

<p> (1) Evidence. Foreign Laws. </p> <p>In an action arising out of a collision in the State of Massachusetts between two automobiles driven respectively by plaintiff and defendant, both residents of this State, it was error to permit defendant to interrogate plaintiff as to the rule of the road in the State of Massachusetts, where there was no evidence that plaintiff was qualified to testify as an expert upon the laws of that state, and to instruct the jury that such testimony should govern them as to the law in that regard.</p> <p> (2) Evidence. Foreign Laws. </p> <p>Upon appeal the court cannot take judicial notice of the statute law of another state. Such statutes are matters of fact to be pleaded and proved.</p> <p> (5) Evidence. Foreign Laws. </p> <p>Without deciding that parole evidence would never be admissible as to the laws of another state, evidence of such provisions should not be admitted without examination into the qualifications of the witness and solely upon the statement of the witness that he knows the laws of such state.</p> <p>(4) Evidence. Foreign Laws. Common Law.</p> <p>Without evidence to the contrary there is no basis for the presumption that the common law has been modified in another state or that the statute law of such state is the same as our own, but it will be presumed that the common law prevailing in another state is the same as in this State.</p> <p>(6) Evidence. Foreign Laws. Rule of the Road.</p> <p>In an action arising out of a collision in Massachusetts between two automobiles driven by plaintiff and defendant, both residents of this State, in the absence of reliable evidence as to the law of Massachusettts as to the rule of the road, the court should have applied the common law as it is generally recognized and as it prevailed in this State before it was modified by statute, i. e. that a traveler on the highway is not obliged to turn his vehicle aside for another traveling in the same direction if there be convenient room for the other to pass upon either side.</p> <p>(i6) Automobiles. Negligence. Law of the Road.</p> <p>Where plaintiff and defendant were driving automobiles along a highway in the same direction, plaintiff being in front on the left of the centre of the road and defendant attempted to pass him upon the left and both traveled beside each other for some distance, defendant gradually drawing ahead, unless defendant was in some way misled by the conduct of plaintiff, he would not be justified in turning to the right in front of plaintiff until he was so far ahead that he might do so with safety, and while the failure of plaintiff to turn to the right might have been in violation of the statute, if his acts indicated clearly that he did not intend to turn in that direction and he did not turn to the left or accelerate his speed, his act was not necessarily negligence, but whether plaintiff upon the facts was guilty of contributory negligence was a question for the jury under proper .instruc- ■ tions.</p>

<p>(I) Deeds. Construction.</p> <p>By deed grantor conveyed to a trustee premises bounding 100 feet on the east and west and 150 feet on the north and south upon trust to permit the wife of grantor to occupy the same during her life, and upon her death providing the youngest of the children had attained the age of 21 years to convey-the premises in fee to such of the children as might be living. Then followed this provision “upon this further trust that the said trustee shall within such reasonable time as the court of probate shall appoint convey to the highest bidder at public auction two lots fifty feet front (on the south) and running back (to the north bound) from off each side of the above-mentioned premises and invest the purchase money and hold such funds as security for the payment of the sums to be paid by me (until the death of luis wife) and after her decease as security for (the payments to be made to his children) and after such payments have ceased to be obligatory upon me to transfer such securities to me my heirs and assigns.” This last provision was later modified “that within three years from the date of the trust deed the said trustee may sell the said lots described as aforesaid in such way as he may judge best, but after three years if said lots are unsold the obligations of said deed relating to the above-described condition shall remain in full force.” Within the three years the trustee conveyed from the west portion of said premises a parcel of land bounding 50 feet on the south and running back 100 feet to the north bound.</p> <p>Held, that the provision of the deed as to the conveyance of the two lots was repugnant to the former provision in reference to the occupancy of the premises by the wife of grantor for life and the subsequent conveyance to the children.</p> <p>Held, further, that the intent of grantor as disclosed by the deed, which should be construed from the standpoint of the parties at the time of its execution, taking into consideration also the other instruments simultaneously delivered as part of the general scheme of the grantor, must be ascertained.</p> <p>Held, further, that the intent of grantor was to furnish an income for his wife for life and to provide for the maintenance of the children, in addition making provision for a home for the use of the wife for life and for the conveyance of said home at her death to the children who should survive her and attain the age of 21 years. That in addition to the other security given by grantor for the performance of his covenants, the second proviso of the deed made the two lots and the proceeds of the sale thereof in like manner collateral security for the payments, and such purpose of grantor would be effected by giving the wife the use of the house and the middle lot on which it stood, and by its conveyance after her death to the children.</p> <p>Held, further, that it was the intent of grantor that the two lots were to be sold and the proceeds held only as collateral security and when the trusts were executed such proceeds were to be transferred to him.</p> <p>Held, further, that it being the intent of grantor to convert the two lots into personalty, the lot not sold would be treated as personalty and hence the words “to transfer such securities” were apt to require the conveyance of the unsold lot to the representatives of grantor.</p> <p> (8) Deeds. Repugnancy. </p> <p>In case of repugnancy, effect should if possible be given to every part of a deed, consistent with the rules of law and the intention of grantor, otherwise the part which is repugnant to the intention is rejected.</p> <p>($) Trusts. Vesting of Legal Estate.</p> <p>Where the creator of a trust provided that upon the death or resignation of a trustee the probate court should appoint a new trustee, but made no provision for the vesting of the real estate in the new trustee and there was no apparent reason for a departure from the ordinary rule of conveyance, upon the appointment of a new trustee after the death of a former, the legal title to the real estate remained in the heirs of the former trustee.</p> <p> (Ji) Trusts. Statute of Uses. </p> <p>Where a trust has been fully executed except a compliance with the direction to convey to the ultimate beneficiaries the transfer of the legal title is not effected by the statute of uses, but a conveyance by the trustee is required.</p>

<p>(1) Mandamus. Municipal Officers. Inspection of Milk.</p> <p>Gen. Laws, 1896, cap. 147, § 2, made obligatory the election of an inspector of milk in the city of Providence, by the mayor and aldermen.</p> <p>By Pub. Laws, cap. 333, passed May 13, 1896, provision was made for the employment of collectors of samples by such inspector, subject to the approval of the mayor and aldermen, vesting authority in the inspector to discontinue the employment of any collector at any time. The collector was to be engaged before the city clerk and a record kept thereof and was to receive such salary as the mayor and aldermen should determine.</p> <p>Pub. Laws, cap. 786, passed May 31, 1900, provided that the inspector of milk of the city of Providence might appoint subject to the approval of the mayor and aldermen two collectors of samples with authority to dismiss them at any time and subject to the same approval appoint others, and in other respects conformed to the former act, and these provisions have been reenacted as Gen. Laws, 1909, cap. 173, § 9.</p> <p>Held, that the mayor and aldermen of the city of Providence exercise the powers of a local board of health, and the election of inspectors of milk aDd collectors of samples by the board of aldermen was authorized for the purpose of assisting such local board in the discharge of its duties within its respective locality, and such officers were primarily municipal rather than state officers, and as between the inspector and collector the latter was a mere employee without definite tenure of office and might be removed without cause at the pleasure of the former:—</p> <p>Held, further, that the inspector of milk and collectors of samples of the city of Providence were “officers” of the city within the words of the charter “the administration of all the fiscal, prudential and municipal affairs of said city with the conduct and government thereof, shall be vested in (the mayor, aldermen and common council), together with such other magistrates or officers, as are hereinafter specified or by the laws of this State or ■the ordinances of the city are or hereafter may be, authorized or prescribed, ” and therefore they were subject to removal under Sec. IX, clause 9 of the charter, “The city council may by a concurrent vote, two-thirds of the members elected to either board voting in the affirmative, remove all officers for misconduct or incapacity.”</p> <p>Held, further, that the power of dismissal given to the inspector over the collector was not in conflict with or exclusive of the power of removal vested in the city council.</p> <p>Held, further, that where charges preferred against a collector of samples were of a serious character, sufficient if proved to warrant his dismissal from office, the city council, having the power of removal, had also the power to suspend the officer pending the investigation of the charges against him.</p> <p> iffi) Mandamus. Public Officer. </p> <p>Mandamus is appropriate to compel the restoration to office of a rightful incumbent who has been wrongfully removed.</p> <p> (8) Municipal Officers. Dismissal. Certiorari. </p> <p>■Charges were filed against a collector of samples of milk before the city council of the city of Providence and a joint committee was appointed to hear the evidence and report it with its findings. The committee heard the testimony, the accused being represented by counsel and given an opportunity to present Inis defence and reported the evidence with its findings to the council which received the report and the accused was given an opportunity to appear before the council and show cause why he should not be removed from office, of which he did not avail himself.</p> <p>Held, that the method was a reasonable and proper one of gathering the evidence and bringing it before the council for its consideration and determination, and there was no delegation of power to the committee to try the accused, but his removal was by act of the council upon the evidence after full opportunity to him to appear and be heard before it.</p>

<p> (1) Bills of Exceptions. Exceptions after Judgment. </p> <p>An exception does not lie to a ruling or decision of the trial court after the entry of judgment in the cause.</p>

<p> (1) Beneficial Societies. </p> <p>Under a by-law oí a beneficial society which provides that the dues shall be paid monthly in advance and that “the member who does not pay his dues for a period of three consecutive months is dropped and loses by that fact all his right to indemnity in death or sickness,” a member whose dues at the time of his death were in arrear for three months had ceased to be a member without any other action of the society being required to remove him from membership.</p>

<p> '(1) Negligence. Minors. Firearms. </p> <p>A declaration charging in one count the violation of the statutory duty imposed by Gen. Laws, 1909, cap. 134, § 7, which prohibits the sale of firearms to minors under the age of 15 years without the written consent of the parent or guardian and in a second count a violation of the common law duty in the sale and delivery of a rifle and ammunition to a minor 11 years of age unused to and inexperienced in the use of firearms, all of which defendant knew or should have known, whereby plaintiff traveling upon the highway was shot while the minor was firing at a target, states a cause of action, and is not defective in not alleging that the minor acted in ignorance of the danger and while in the exercise of that degree of care of which he was capable, since the negligence of the minor in handling the weapon or even his willful use of it was one of the natural consequences of entrusting him with it.</p> <p> '{3) Evidence. Experts. </p> <p>A question asked of a medical expert calling for an opinion involving a knowledge of metals and the force of explosives which it did not appear witness possessed was properly excluded.</p> <p>(8) Evidence.</p> <p>A statement that witness who had not qualified as an expert had made a test to determine a certain fact, without disclosing the manner of such test or its result was not prejudicial.</p>

<p>(.1) Pleading. Double Damages.</p> <p>In order to recover double damages under a penal statute such statute must be declared upon.</p> <p>Pub. Laws, 1909, cap. 577, Sections 1 and 3, provide that any person causing injury to the public or private fisheries shall be liable in double damages to be recovered in an action of the case.</p> <p>Plaintiff brought a common law action for injury caused to his oyster beds, without any reference to the statute.</p> <p>Held, that as the damages which plaintiff claimed to have suffered extended over a period both prior to and after the passage of the statute, assuming that plaintiff might be entitled to double damages, such damages would be limited to the time subsequent to the passage of the act and there was nothing in the record which would enable the court to separate the damages suffered after the passage of the act from those which preceded it, but as plaintiff’s declaration disclosed a common law action rather than an action under the statute, motion of plaintiff after verdict that judgment be entered for double damages would be denied.</p>

<p>(1) Trespass. Special Damages. Evidence.</p> <p>In an action of trespass for assault and battery, the declaration containing no averment of special damage, but merely the averments usually set forth in a criminal complaint, evidence as to special damage claimed as the result of the personal injury is inadmissible.</p> <p> (S) Trespass. Special Damages. Evidence. </p> <p>In an action of trespass for assault and battery without averment of special damage, it was error to permit plaintiff to offer evidence as to the continuance of pain and suffering after the date of the writ, and as to plaintiff’s condition two years and a half after the assault.</p> <p> '(8) Trespass. Evidence. </p> <p>In an action of trespass for assault and battery brought by plaintiff against defendant, the foreman of the X Co., where the assault was alleged to have been committed as the result of a dispute over a demand by plaintiff for wages which defendant claimed he had received, evidence as to the receipt of the wages by plaintiff from the X Co. after the suit was brought was irrelevant and its admission was prejudicial error.</p>

<p>(1) Death by Wrongful Act.</p> <p>Gen. Laws, 1909, cap. 283, § 14, referring to an action for wrongful death, provides, “Every such action shall be brought by and in the name of the executor or administrator of such deceased person, whether appointed or qualified within or without the state: Provided, that every such action shall be commenced within two years after the death of such person. If there is no executor or administrator or if, there being one, no action is brought in his name within six months after the death, one action may be brought in the names of all the beneficiaries, either by all or by part, stating that they sue for the benefit of all, and stating their respective relations to the deceased: Provided, further, that if such action be brought by the beneficiaries, no action shall thereafter be brought by the executor or administrator. ”</p> <p>Held, that the statute does not suspend the right of action until the appointment of an executor or administrator, but from the date of such appointment and qualification, provided no action has previously been commenced by the beneficiaries, such executor or administrator has the exclusive right to bring such action within the portion still remaining of the six months immediately following the death of the deceased, but aside from this limitation the beneficiaries may bring such action at any time within the two years allowed therefor.</p> <p> (£) Construction of Statutes. </p> <p>Where the language of a statute is clear, and admits of but one meaning, the legislature should be intended to mean what it has plainly expressed and there is no room for construction, for courts are not to inquire as to the motive of the legislature nor to depart from a meaning clearly conveyed in unambiguous words, because the statute, as literally understood appears to lead to unwise conclusions or to contravene public policy.</p> <p>(S) Death by Wrongful Act.</p> <p>Where an action is commenced by the beneficiaries under Gen. Laws, 1909, cap. 283, § 14, within the period of six months following the death of the deceased person, the declaration should allege that no executor or administrator had been appointed.</p> <p>(4) Death by Wrongful Act. Beneficiaries.</p> <p>Under Gen. Laws, 1909, cap. 316, § 1, as amended by Pub. Laws, cap. 924, in an action brought by the beneficiaries to recover for a death by wrongful act under cap. 283, § 14, a mother is placed on the same footing as the father in'the matter of damages, for the death of their child.</p>

<p> (1) Wills. Life Estate with Power of Disposal. </p> <p>Testatrix by will devised and bequeathed the residue of her estate to her husband “for his sole use and benefit during the term of his natural life, and upon the death of my said husband I direct that that which is remaining in possession of said (husband) be divided as follows:” After stating the method of division the will provided, “While having left my estate to my husband during his lifetime, it is my will that he be not restricted in any manner from using or disposing of all or any part of my real estate except the estate (describing it) nor all or any part of my personal property whether deposited in any bank or banks or otherwise invested. ”</p> <p>Held, that the husband received a life estate' with power of disposition, and therefore the limitations over were not void as repugnant to the estate in the life tenant.</p> <p>Held, further, that the power of disposition by a conveyance inter vivos did not extend to a disposal by will.</p>

<p>(1) Wills. Remainders.</p> <p>Testamentary provision to widow of testator “her heirs and assigns forever all my real estate and personal property in trust — to hold said real estate and personal property and the rents, profits and income thereof for her own use during her natural life, or so long as she shall remain my widow, ” and “ upon her decease or marriage, to hold the same in trust for the support of my minor children — -until such time as the youngest of minor children who shall live to attain the age of twenty-one years shall have attained that age and then to convey said estate in equal shares to my children then living and to the descendants of any of them that may have deceased.”</p> <p>Held, that the purpose was to give the widow the use of the trust estate during her natural life except in case of her remarriage, and if necessary the trust was to continue until the majority of the youngest child of testator.</p> <p>Held, further, that the expression “then to convey said estate,” referred to the happening of the event which was to mark the termination of the trust and not to the attaining of the age of twenty-one years by the youngest child.</p> <p>Held, further, that the equitable remainders after the life estate of the widow were contingent and therefore a child who deceased in the lifetime of the widow and after the youngest child had attained its majority had no devisable interest in the estate.</p>

<p>(1) Wills. Vested Interests. Gifts to a Class.</p> <p>Under a will bequeathing the income and profit of a fund for fife and “upon the decease of the said X, 1 give and bequeath the same” to the six children of X, (naming them) “ equally to them their heirs and assigns forever, share and share alike.”</p> <p>Held, that the intent of testator was to give X the income of the fund for life and the fund itself to the children upon her decease.</p> <p>Held, further, that the children received a vested interest.</p> <p>Held, further, that the gift to the children was not a gift to a class, but to the individuals distributively.</p> <p> (2) Trusts. Equitable Conversion. </p> <p>Under a will which bequeathed the income of a fund for life with remainder over, but which made no provision for a trustee, the executor invested the fund and upon his decease a trustee was appointed who invested a portion of the fund in a mortgage upon real estate.</p> <p>Held, that the character of the portion of the fund so invested was not changed as it amounted to an equitable conversion of the personalty into realty.</p> <p> (S) Descent and Distribution. </p> <p>Where testator bequeathed to X the income of a fund for life, and after her death, provided that it should be divided equally among her six children, a surviving husband of a deceased child is not entitled to share with the surviving children in that part of the estate which came to them by inheritance from other children dying intestate and unmarried.</p>

<p>(1) Wills. Specific Legacies.</p> <p>Under a will testatrix who owned at the time of her death and who had owned for many years prior to the execution of her will 170 shares of the stock of a corporation, bequeathed to various legatees this exact number of shares and to others, pecuniary legacies. The assets of the estate other than the stock were insufficient to pay in full the pecuniary legacies. The will provided, paragraph 29, that the legacies “may be paid in money or in such bonds, stocks, mortgages or other securities not hereinbefore specifically bequeathed as I may possess at the time of my death or partly in each, such securities to be taken at such then fair value thereof as may be agreed upon between my executors and the persons or corporations entitled to such legacies, respectively. ”</p> <p>Held, that as an examination of the will preceding paragraph 29 showed no mention of any “bonds, mortgages or other securities,” but did disclose bequests of the capital stock of the corporation in question, amounting in the aggregate to the exact number of shares of stock which she then owned and which identical stock she held at her death, the words “bonds, stocks, mortgages or other securities not hereinbefore specifically bequeathed” disclosed the intention to specifically bequeath such stock and in consequence such legacies did not abate by reason of the fact that the assets were insufficient to permit payment of the pecuniary legacies in full.</p> <p>(£) Wills. Misnomer of Legatee.</p> <p>A misnomer of a legatee is immaterial if the person intended can be identified by the description in the will.</p>

<p>(1) Carriers. Negligence. Contributory Negligence.</p> <p>Where plaintiff was riding as a guest in an automobile having no control over the driver, in case of an accident caused by the negligence of a third person, the contributory negligence of the driver cannot be imputed to plaintiff. It would be the duty of plaintiff under such circumstances to use reasonable care for his own safety and whether he exercised such degree of care is primarily a question for the jury, and it cannot be said as a matter of law that plaintiff was guilty of negligence because he did nothing, nor where the situation of danger came unexpectedly would a court be justified in setting aside the finding of the jury that plaintiff was not guilty of contributory negligence, because he failed to tell the driver to stop or to caution him, nor because he failed to leave the machine, where under the evidence such act in all probability would have placed him in greater danger.</p>

<p> (1) Appeal and Error. New Trial. </p> <p>As under the practice now prevailing, the trial court ought to independently exercise its power to grant new trials whenever in its opinion the verdict of a jury fails to administer substantial justice to the parties, in considering an exception to the decision of the justice on a motion for a new trial, the appellate court must consider both the transcript of the evidence and the decision of the justice to determine whether it clearly appears that the justice was in error in his decision, which is the question brought up by the exception.</p> <p>(0) Probate Appeal. Appeal and Error. New Trial.</p> <p>On an appeal from the probate of a will, where the verdict of the jury was in favor of appellant, and new trial was granted by the trial court, evidence and decision of justice considered and held, no error.</p> <p>Parkhurst and Vincent, JJ., dissenting.</p>

<p>(.1) Wills. Gift to Class. Vested Interest.</p> <p>Testamentary trust after px-ovision for the widow, directed the trustees to collect the income from the remainder of the estate, and to pay one-fifth part thereof to each of his five children during their respective lives and “ I order and declare that the trustees from and after the decease of my five children respectively, shall hold the \ part of the estate in trust for the child or children of such deceased child of mine, living at the decease of the survivor of myself and such child of mine, who shall either before or after said time attain the age of 21 years or marry under said age, and also the issue then living who shall either before or after said time, attain the age of 21 years or marry under said age, of any previously deceased child or children, of such deceased child of mine, as tenants in common; if more than one. But so that the children then living of such deceased child of mine shall take in equal shares and proportions and so that the issue then living of any deceased child of such child of mine, shall take per stirpes and not per capita, equally if more than one, the share or shares only, which his her, or their parent or respective parents would have taken if living to acquire a vested interest therein, to the use absolutely and in fee simple of such child, children and issue respectively.”</p> <p>“And in case there shall be no child of such deceased child of mine, or issue of deceased child of such deceased child of mine, living at the decease of the survivor of myself and such child of mine, or there being such he, she or they shall all decease under the age of twenty-one (21) years and without having been married, then and in such case the said trustees shall hold the said one-fifth (1-5) part of said trust premises subject as aforesaid, In Trust, —-for the person or persons of my blood, who at the time of the decease of said survivor of myself and such child of mine, or at the time thereafter when such failure of issue as aforesaid shall be ascertained, as the case may be, would be my hen- or heirs at law, according to the statutes relating to the descent of real estate, then in force in Rhode Island, if I had then deceased intestate, seized and possessed of the trust premises aforesaid, and if more than one, in the proportions prescribed by such statutes, to the use absolutely and in fee simple of such person or persons.</p> <p>“I hereby authorize the said trustees to apply in or towards the maintenance, education, support or otherwise for the benefit of any grandchild or more remote issue of mine, during minority or diseoverture all or any part of the yearly income, to which or to the share in my said residuary estate producing which such grandchild or other issue may be or become presumptively or contingently entitled in possession under any of the preceding dispositions of this will. And the unapplied income shall be accumulated and the accumulation shall be subject to like application, and so subject shall form part of and follow the destination of the share whence the said income shall have arisen. ” X. one of the children of testator deceased leaving certain children, him surviving, some over the age of 21 and some minors.</p> <p>Held, that the gift to the children of X was a gift to a class and this class was limited to the children of X living at the decease of the survivor of the testator and X who should attain the age of 21 years or marry under that age. The contingency upon which the gift was to become payable was annexed to the gift itself and the estate became vested at the time when the first person fulfilled all the requirements of the gift. It was not the enjoyment merely of the gift which was postponed but the gift itself was made contingent upon a grandchild arriving at the age of 21 years, or marrying under that age, and as each such grandchild arrived at said age or married under said age he was entitled to his share.</p> <p> (3) Wills. Gift to Class. Vested Interest. </p> <p>Held, further, that the fact that a child may die under 21 after the arrival at majority of another child, is no reason for holding that the estate does not become vested, since in gifts to a class such as the one under consideration the class is regarded as a unit, and as soon as one child fulfills all the requirements of the gift, the gift becomes vested in the class. The class cannot then become enlarged and the death of one of the class before fulfilling all the requirements of the gift simply operates to increase the share which those fulfilling the terms of the gift have become entitled to.</p> <p> (3) Wills. Income of Fund. </p> <p>Held, further, that in regard to the application of the income for the education and support of the minor grandchildren, such grandchildren were entitled to the income from their own shares only.</p> <p> (4) Wills. Statute of Uses. Trusts. </p> <p>Held, further, that there was no duty of conveyance or other duty imposed upon the trustees with respect to the share of a grandchild who had reached the age of 21 years, but such grandchildren took vested legal interests under the statute of uses.</p>

<p>(1) Appeal and Error. Exceptions.</p> <p>The court will not consider exceptions involving a consideration of the weight of the evidence, where the trial court committed prejudicial error in the admission of evidence, requiring a new trial.</p> <p>(8) Evidence. Opinion Evidence.</p> <p>While a question to an expert witness which does not give a clear statement of the various facts upon which the opinion of the witness is to be based, is objectionable, the error is not substantial where the further examination of the witness shows in detail upon what facts the opinion is based.</p> <p>(8) Evidence. Life Tables.</p> <p>Where the declaration alleged permanent injury and there was evidence from which the jury could have found such allegation established, life tables were properly admitted in evidence.</p> <p>(4) New Trial. Remarks of Counsel.</p> <p>Improper remarks of counsel to a witness will not warrant a new trial where ' they are followed immediately by instruction of the court to the jury tO’ disregard them.</p> <p> (5) Evidence. Negligence. </p> <p>In an action of negligence by a traveler upon a highway against a sewer contractor, inquiry by plaintiff of the defendant as to whether there was a contract between him and the city was properly admitted.</p> <p>(i6) Negligence. Evidence.</p> <p>In an action by plaintiff against a sewer contractor for damages resulting to her from a negligent obstruction of a path which she claimed defendant owed her a duty to keep safe and unobstructed, and which was outside of the lines of the highway where the sewer was being constructed, and upon private property, it was prejudicial error to permit certain portions of the .contract betweeen the city and defendant to be read to the jury, as tending to show any duty owed by defendant to plaintiff, where the contract related only to the obligations of defendant in relation to the highway.</p> <p>(7) Contracts. Rights of Third Parties. Negligence.</p> <p>A third party cannot maintain an action for injuries resulting from a breach of a contract between two other contracting parties, even where the duty imposed by the contract relates to matters which have a direct bearing upon the injury sustained.</p>

<p>(1) Abatement. Res Adjudicata. New Action.</p> <p>Gen. Laws, 1909, Cap. 284, § 9, provides “If any action, duly commenced within the time limited, and allowed therefor in and by this chapter, shall be abated, or otherwise avoided or defeated by the death of any party thereto or for any matter, or if, after verdict for the plaintiff the judgment shall be arrested, the plaintiff may commence a new action for the same cause, at any time within one year after the abatement or other determination of the original suit as aforesaid. ”</p> <p>Held, that under the practice in this state, a compulsory nonsuit is not res adjudicata, and is not a bar to a new action commenced within the time limited in said section.</p> <p>Held, further, that plaintiff was not barred, by reason of the fact that he brought his exception to the decision of nonsuit and then withdrew his bill of exceptions and caused judgment to be entered upon the nonsuit, since the first action was defeated by the entry of nonsuit against plaintiff’s objection and not by his withdrawal of his bill of exceptions, and the entry of judgment upon that decision was the act of the court in accordance with the established procedure.</p> <p>(#) Negligence. Master and Servant.</p> <p>Defendant company was engaged in removing its property from one of its yards and by direction of its superintendent certain secondary electric light wires were disconnected at the meter', leaving two primary wires charged with electricity. The secondary “dead” wires were sold to a junk dealer, who removed them from the building. An employeé of the latter by direetion of a gang “boss” of defendant out the primary wires so that they lay on the ground near the disconnected secondary wires. Plaintiff, an unskilled laborer, in employ of defendant by direction of the “boss, ” was told to coil up the wires and coming in contact with the primary wires was injured.</p> <p>Held, that the gang “boss” was a fellow servant with plaintiff, that he had no authority to direct the cutting of the wires and any negligence on his part or knowledge that the wires were upon the ground could not be imputed to defendant.</p> <p>Held, further, that as defendant was bound to know of the dangerous element in the primary wires and that if they were cut and allowed to remain upon the ground they would constitute a source of danger, the case was properly submitted to the jury upon the question whether the superintendent of defendant was on the premises after the wires were cut a sufficient length of time and under such circumstances that if he had been exercising reasonable care he would have known that the wires were on the ground, with the charge of the court that if they found such to be the fact the defendant was charged with constructive notice of the danger to plaintiff and was guilty of negligence in failing'to warn him of the danger.</p>

<p>(1) Contracts. Rescission. Building Construction.</p> <p>Performance of a contract for construction work is not excused by the fact that there is a defect in the soil which renders necessary a greater amount of work than was contemplated by the contractor at the time of the execution of the contract.</p> <p> (%) Contracts. Rescission. Building Construction. </p> <p>Where a party at the time of entering into a contract for construction work ' knew of a defect in the soil, and in causing the plans and specifications to be prepared intentionally caused to be omitted therefrom the plans and specifications for dealing with such defect for the purpose of deceiving the contractor; after the discovery of such defect by the contractor and the abandonment of the contract by him, he may recover on the common counts the value of the work and materials furnished, but the mere knowledge of the defect on the part of defendant, disconnected from any attempt or intention on his part to conceal it from the contractor or to prevent or deter him from an examination of the premises would not justify a rescission ■ of the contract by the contractor, and where the character of the soil was a matter of common knowledge, defendant might assume that the contractor would be advised of it or could easily acquire and perhaps had acquired a sufficient knowledge of it.</p> <p>($) Contracts. Rescission. Building Construction.</p> <p>Where a contract for construction work contained a number of provisions which would naturally suggest to expert contractors the desirability of making an examination of the soil, and the contractor had an opportunity to and did make an examination of the premises, and it did not appear that a careful examination would not have discovered the difficulties afterwards found, the contractor is not justified in a rescission of the contract, based on a defect in the soil, rendering necessary a greater amount of work than was contemplated at the execution of the contract.</p>

<p> (1) Billboards. Constitutional Law. </p> <p>Public Laws, cap. 542, passed January session, 1910, “An act authorizing cities and towns to regulate certain out-door advertising,” and Chapter 443 of the ordinances of the city of Providence, passed pursuant to the authority of Pub. Laws, cap. 542, are not obnoxious to Cons. R. I., Art. I, § 10, and Cons. U. S., Art. XIV of amendments, §l,as depriving a person of his property without due process of law, nor as denying to a defendant the equal protection of the laws, in violation of the 14th amendment Cons. U. S., nor as depriving a defendant of his property without just compensation in violation of Cons. R. I., Art. I, § 16, and the 14th amendment Cons. U. S., nor as depriving a. defendant of the right of judicial inquiry as to his vested rights and vesting, an unjudicial officer and body with judicial powers in violation of Sections 14 and 15 of Art. I, and of Section 1 of Art. X, Cons. R. I.</p> <p>(#)* Billboards. Constitutional Law.</p> <p>Public Laws, cap. 542, passed January session, 1910, § 2 (the enabling act), and cap. 443 of the ordinances of the city of Providence, the so-called “Billboard” ordinance, Section 1, set forth that it is their purpose “to preserve the health, safety, morals and comfort of the inhabitants of this state.” The ordinance excepts “advertising located upon private property, and relating exclusively to business conducted upon such property, or the sale or rental thereof or advertising in orupon the cars and stations of any common carrier.”'</p> <p>H eld, that the exemptions made by the act and ordinance were expressly within the purview of Pub. Laws, cap. 472, an act “in relation to buildings in the city of Providence,” which act was not superseded in any manner by Pub. Laws, cap. 542, and therefore the act and ordinance were not invalid as. making an unjust and unreasonable discrimination by means of an attempted classification between those doing a similar business, but that the provisions, of Chapter 542 as applied to those doing an out-door advertising business were fully warranted by the nature of that business and expressly provided that any regulation of any ordinance adopted by authority of the act. must be reasonable in its requirements.</p> <p>($) Billboards. Reasonable Regulations.</p> <p>Cap. 443 of the ordinances of the city of Providence, the so-called “Billboard”' ordinance, in prohibiting the advertising of intoxicating liquors within 200 feet of schools and churches; in requiring structures on the roofs of buildings within the close building district to be constructed of incombustible material; in regulating the location upon roofs so that the structure would not be hable1 to fall into the street; in regulating their size and construction so as to diminish fire danger; in regulating the size and position of structures attached to the ground to insure the safety of passers by; in requiring substantial construction and bracing and in regulating the electrical illumination of bihboards and illuminated signs; in providing for the making safe or removal by the owner or other person interested of any billboard that becomes dangerous to the public; in requiring that the plans and specifications shall be approved by the inspector of buildings; in prohibiting the display of immoral matter and requiring the approval of the police commissioners of all matter displayed; and in providing for fines for violation of the ordinance and for the removal of the structures after conviction for such violation, — is in all respects strictly within the powers conferred by cap. 542, Pub. Laws, 1910, and is not unreasonable in any of said provisions, and is clearly an exercise of the police power “to preserve and promote the public safety, health, morals, comfort and general welfare.”</p> <p> (4) Billboards. Reasonable Regulations. </p> <p>In view of the wide latitude permitted the legislative branch in determining the public needs and the appropriate remedies, the court should uphold the limitations on size imposed upon out-door advertising structures where in the opinion of the court, such limitations are not clearly unreasonable.</p> <p>(6) Constitutional Law. Talcing Private Property.</p> <p>An ordinance passed under the authority of an enabling act, prohibiting advertising upon estates or buildings owned or controlled by the municipality or on any tree, post, pole or municipal property within the occupation line of any street, is not obnoxious to the constitutional prohibition of taking private property without due process of law.</p> <p> (6) Constitutional Law. Police Power. Due Process of Law. </p> <p>Reasonable regulations of the use of property under the police power do not constitute a “taking of property without due process of law.” No compensation need be made for interference with the use of property caused by reasonable police regulations.</p> <p>'(7) Constitutional Law. Trial by Jury. Judicial Powers.</p> <p>Pub. Laws, cap. 542, §§ 2 and 3, authorizes any city or town council to regulate by ordinance out-door advertising as to the place where it may be permitted, the size and kind of structures, and its subject-matter, provided such regulations shall bo reasonable, and for the approval of such advertising in respect to all of the above matters, by a city or town officer, and it gives the right of appeal to the town or city council.</p> <p>Sec. 11 of cap. 443 of the ordinances of the city of Providence, prohibits the display on any board put up for out-door advertising, of matters of an indecent or immoral character, or depicting the commission of any crime, and provides for the written approval of the police commissioners.</p> <p>Held, that the powers conferred upon the police commission were not judicial powers, under Cons. R. I., Art. X, § 1, neither did the power thus granted violate Cons. R. I., Art. I, § 15, “The right to trial by jury shall remain, inviolate.”</p>

<p> (1) Common Carriers. Interstate Commerce. </p> <p>Defendant, ah electric express company, operated between the towns of A. and B. In defendant’s bill of lading which was filled out by plaintiff, no rate was stated and no value of the goods shipped was declared, but defendant was directed to ship the goods to their destination “via E. &P. Ex.” Defendant would deliver the goods to the E. & P. Express Co. at B., and receive a bill of lading stating, that the goods were received for shipment from the defendant. Defendant fixed no through rate and did not render shipper a bill for through charges, but had an agreement with shipper for a local rate over its own fine irrespective of the character of the goods or their value, and when the charges of the E. & P. Co. were to be prepaid, defendant advanced the amount of these charges and in its bill to shipper placed said amount as a separate item under the head of “advances.” The rates of the E. & P. Ex. Co. between B. and C. were duly published and posted as required by the interstate commerce act. Shipper knew the. rates of the E. & P. Co. and that such rates were based upon the value of the goods shipped and that if no value was declared the shipments would be considered as of the value of $50 each, and no further liability would be assumed by the E. & P. Co.</p> <p>The bill of lading of defendant stated that it “agrees to carry (the goods) to the said destination if on its road, otherwise to deliver to another carrier on the route to said destination,” and a condition of the bill of lading of defendant stated “no carrier shall be liable for loss or damage not occurring on its own road or its portion of the through route nor after said property is ready for delivery to the next carrier or to consignee. The amount of any loss or damage for which any carrier becomes fiable shall be computed at the value of the property at the place and time of shipment under the bill of lading, unless a lower value has been agreed upon or is determined by the classification upon which the rate is based, in either of which events such lower value shall be maximum price to govern such computation.”</p> <p>Certain shipments delivered by shipper to defendant routed “via E. & P. Ex.” to be sent to C. were lost after delivery to the E. & P. Co.</p> <p>Held, that defendant by its bills of lading had fixed its status as an interstate carrier and hence was subject to the interstate commerce act.</p> <p>Held, further, that as the “initial carrier” under Section 20 of the Interstate Commerce Act it was responsible for any loss or damage caused by it or any carrier to which the goods were delivered in transit, notwithstanding the provision in its own bill of lading by which it sought to restrict its liability to damage occurring on its own road.</p> <p>Held, further, that it was a part of defendant’s undertaking to forward the goods to their destination through the E & P. Co., and by no other carrier.</p> <p>Held, further, that the rate which shipper was to pay defendant for the through service was to be defendant’s own rate to B., plus the rate of the E. & P. Co., which was based on a valuation of $50 on each shipment. This latter rate which was well known to shipper was based upon a classification as to value and hence a value lower than the actual value of the goods had been agreed upon and was determined by the classification as to value upon which the rate of the defendant was based.</p> <p> (£) Common Carriers. Interstate Commerce. </p> <p>Rates established by a carrier when approved by the Interstate Commerce Commission have the force of rates imposed by law and cannot be varied. Such a rate becomes binding upon all persons and all shippers are charged with knowledge of it as constituting the lawful rate.</p> <p>(S) Common Carriers. Interstate Commerce. Evidence.</p> <p>In an action against an initial carrier for loss of goods where there was no mention in the bill of lading as to the rates of the carrier, either local or for through service, evidence as to the course of dealings between the parties showing the rates to have been based partly upon the rates of another connecting carrier, and that shipper had a thorough knowledge of the rates of such connecting carrier with reference to which the parties had contracted, was properly admitted.</p>

<p>(1) Brokers. Commissions.</p> <p>A broker authorized to sell property at the minimum price of $7,000, does not. perform his contract by procuring a customer who agrees to buy the property for said sum or to forfeit a deposit of $100 as liquidated damages.</p> <p> (3)Contracts. Brokers. Liquidated Damages. Penalty. </p> <p>An agreement for the sale of land provided that the customer had paid to the owner “the sum of $100, which sum in case this agreement is carried out shall' be applied in reduction of $7,000 cash payment above stipulated to be paid,* but in case said (customer) shall fail to perform her part thereof, then this sum shall be forfeited and belong to said (owner) as and for liquidated damages.”</p> <p>Held, that the elements of doubt as to the amount of damages which might be sustained; of the difficulty of ascertaining the precise amount of damages; of the reasonableness of the amount to be paid; of the use of the term “liquidated damages ” and of the actual deposit of the money warranted the construction, that the contract provided for liquidated damages and not for a penalty.</p> <p>(3) Penalty. Liquidated Damages.</p> <p>In the construction of a contract to determine whether a penalty or liquidated1 damages was contemplated the fact to be determined is, whether the party is restricted from doing a particular act, although if he do it a payment is. reserved or whether the party may do the act, on payment of what is agreed upon as an equivalent.</p> <p> (4) Contracts. </p> <p>A party makes a contract his own by signing it and it is immaterial who may have drafted it.</p> <p> (5) Contracts. Offer and Acceptance. </p> <p>Where an offer is accepted with a condition attached the conditional acceptance amounts to a counter-offer which in turn requires acceptance</p>