Volume 37 — Rhode Island Reports

<p>(1) Equity Pleading. Parties. Dower. Notice.</p> <p>In an action in equity to recover dower, the title of purchasers pendente lite, of the lands prior to the recording of the notice provided in Gen. Laws, 1909, cap. 294, § 13, and not having actual notice, cannot be affected by any proceeding in the suit, and hence there is no necessity for making such alienees, parties respondent.</p> <p>As to those having actual notice, as they would take cum, onere and would be bound by the decree, they are not necessary parties.</p> <p> (2) Equity Pleading. Parties. Dower. Notice. </p> <p>In an action in equity to recover dower, heirs or devisees of a deceased respondent are not necessary parties to the cause.</p> <p> (S) Dower. Pleading. Parties. </p> <p>Gen. Laws, 1909, cap. 329, § 15, provides that “whenever a widow shall be entitled to dower in several parcels of land, whether the fee of the same be in the heir at law, devisee, grantee or a subsequent holder, she may bring a suit in equity against all the persons owning the said lands: — ”</p> <p>Held, that the object of the statute was to permit the widow to bring one suit against all, rather than to be confined to separate suits against the several owners, but her dower in each of the parcels was still the object of the suit, although it was brought under tfye statute against all the owners of the several parcels out of which she was seeking dower, and while in form one suit, in reality, so far as her right to recover dower from the owners of the several parcels was concerned, it was an aggregation of the several suits against the several owners.</p> <p>Held, further, that the right of the widow to recover dower against any owner, was not conditional upon all persons who might have acquired an interest in any of the several parcels, as heir, devisee or alienee of any respondent being brought in and kept before the court; but that the provisions of Gen. Laws, cap. 289, § 11; cap. 329, § 14 and 285, § 5, as to parties applied to this proceeding as to other suits in equity.</p> <p> (4) Dower. Parties. Equity. </p> <p>Gen. Laws, cap. 329, § 15, provides that in a suit in equity to recover dower brought against all of the owners, “the court, according to the course of equity in marshalling incumbrances, may cause the dower of such widow in all of the said paznels to be assigned in one parcel or in contiguous pai-cels out of the lands of the heirs-at-law, or devisee of such deceased husband or otherwise according to equity.”</p> <p>Held-, that, where all of the owners of the several parcels were originally joined as parties under the statute, the right of the complainant to dower out of the parcel of each owner would be concluded by the suit.</p> <p>Held, further, that while upon entry of decree there might be some parcels held by alienees not having actual notice and by heirs or devisees of deceased respondents who had not been brought in and made parties, and such alienees heirs or devisees would not be affected, yet no dower could be recovered from such parcels, and thei’efore zio dower from such parcels could be charged upon the owners of other parcels, and dower either in one parcel or in contiguous parcels would be assigned out of the parcels of the ■ parties respondent at the time of the decree, and in any event the court could assign the dower in such way as under the circumstances would do equity.</p> <p> (5) Equity. Rules of Court. </p> <p>Rules 14 and 15 of the Superior Court have no application, to the procedure in case of the death of parties respondent or the alienation by parties of land in suit.</p>

<p>(1) Chattel Mortgages.</p> <p>Under a mortgage of personal property the legal title is transferred subject to defeasance only on performance of the conditions, and a mortgagor in possession occupies the position of a bailee.</p> <p> (2) Equity. Chattel Mortgages. Notice. Title. Fraud. </p> <p>Gen. Laws, cap. 258, § 10, provides that “No mortgage of personal property shall be valid as to the assignee in insolvency of the mortgagor, or any other person except the parties thereto and their executors and administrators, until possession of the mortgaged property be delivered to and retained by the mortgagee, or the said, mortgage be recorded, — which said recording or talnng and retention of possession 'shall be made or taken within five days from the date of the signing thereof.”</p> <p>September 28,1910, A executed a chattel mortgage to B. A. retained possession and B did not record the mortgage until October 26, 1910. _ July 18, 1911, A executed a bill of sale of the property to C who had actual notice of the existence of the mortgage and that it had been recorded. C took possession of the property and brought a bill to restrain the mortgagee from interfering with it and also for the cancellation of the mortgage.</p> <p>Held,, that in equity, C took the property bound by the trust and subject to the equities of the mortgagee, although the mortgage was lacking in the requisites of registry necessary to malee it valid at law.</p> <p>Held, further, that both the mortgagor and her transferee in the sale of the property in disregard of the title of the mortgagee were guilty of actual fraud, and notwithstanding the absolute language of Gen. Laws, cap. 258, § 10, the statute was subject to an exception, that in equity an instrument valid between the parties thereto would be valid as to other persons having actual knowledge of it.</p> <p>Parkhurst and Vincent, JJ., dissenting.</p>

<p>(1) Workmen’s Compensation Act. Time of Filing Acceptance of Provisions.</p> <p>The workmen’s compensation act was passed, and received the executive approval April 29,1912, to take effect October 1, 1912.</p> <p>Held, that an acceptance of its provisions filed by an employer September 26, 1912, would be presumed to have been filed with the intention that it should take effect when the act went into effect, and was sufficient compliance with Section 5 of said act, in that regard.</p> <p>Johnson, C. J., and Sweetland, J., concurring.</p>

<p>■(1) Easements. Way by Necessity.</p> <p>.Evidence considered and held that in the original grant to complainant’s ancestor in title there was an implied grant of a way in and out of the lot across premises of grantor.</p> <p>(£) Easements. Way by Necessity. Abandonment.</p> <p>_A right of way of necessity ceases when the necessity for its continuance ceases. The necessity continues until some other lawful way has been acquired and a mere revocable permission to use a way over the land of a third person will not extinguish the right.</p> <p> (8) Way by Necessity. Abandonment. </p> <p>Whether a way has been abandoned by acts in pais is a question of intention and such intention must be shown by positive evidence of an express declaration to that effect or by acts of a decisive character. Non-user, although continued for many years, is not conclusive evidence of abandonment.</p>

<p>(1) Wills. Trusts. Equity Pleading. Bills of Review. Original Bills in the Nature of Bills of Review. Equity. Bills in Nature of Bills of Review.</p> <p>A bill of review can be filed only by a party to the original cause or by one in privity with such party, and other persons aggrieved must proceed by original bill in. the nature of a bill of review.</p> <p>A bill impeaching a decree for fraud is an original bill in the nature of a bill of review.</p> <p>The real nature of a bill in equity is to be determined by its substance rather than by its mere form.</p> <p> (2) Equity. Pleading. Laches. </p> <p>Where a trust fund was distributed, before complainant was informed of the proceedings taken to terminate the trust, delay arising from complainant’s ignorance and also from original erroneous procedure by him in asserting his rights, could have worked no harm to the respondents and hence would not be a defence to a bill in the nature of a bill of review seeking to reverse the original decree as fraudulent.</p> <p> (8) Equity. Pleading. Fraud. </p> <p>Concealment of the fact in a prior bill, that complainant was the living husband of a beneficiary under a will, whereby it was made to appear to the court that the only parties in interest were those named in the original bill, and securing a decree in that bill by reason of such concealment constitute a sufficient allegation of fraud.</p> <p>('4) Equity. Venue.</p> <p>A bill in equity was brought and decree entered in Providence county. A bill in the nature of a bill of review attacking the decree, in which the complainant was a non-resident and the principal defendant was a resident of Newport county was filed in the latter county.</p> <p>Held, that the bill was properly filed under Gen. Laws, cap. 283, § 2, and that if the prior decree should be set aside the decree in the lat.ter suit might appear by way of a certified copy in the records of the county of Providence.</p> <p> (5) Wills. Trusts. “Inherit.” </p> <p>Testamentary devise “I give, devise and bequeath to B in trust for G the sum of $5,000 and also the house and land where D formerly lived. To have and to hold the same to her the said B, her heirs, executors and administrators for the use and benefit of C, her heirs, executors and administrators, with power to manage the same generally and if need be in her opinion to sell the same and reinvest the proceeds thereof — and with power to convey said real estate to her, her heirs and assigns at any time when she may think proper and with power to pay over to her said money or any part thereof according to her discretion.” “In all cases where I have given property-in trust for the use a.nd benefit of other persons, and have not specially provided for its disposition on their decease, my will is that the trustee shall on such decease pay and convey the same in fee simple discharged of all trusts to the persons who by the laws of the State of Rhode Island would inherit it, had the persons for whose benefit it was so given died seized and possessed thereof in fee.”</p> <p>The trustee converted the real estate into money.</p> <p>Held, that complainant as husband of the equitable life beneficiary was entitled to the balance of the trust estate.</p> <p>Held, further, that the word “inherit” was not used in its technical sense, but as equivalent to “take” it being the intent of testator that the property should pass as the intestate property of C.</p> <p>■(6) Wills. Construction.</p> <p>While words should be construed, in accordance with their technical meaning whenever possible, the court will adopt a broader .interpretation whenever necessary to effectuate the intent of testator.</p> <p>•(7) Wills. Construction.</p> <p>Where the estate to be divided is in the form of personalty the words “heirs” or “heirs-at-law” will be held to mean those entitled to succeed to personal estate in case of intestacy.</p> <p>(S) Descent and Distribution.</p> <p>•Gen. Laws, 1909, cap. 312, § 10, gives to a husband the exclusive right to the surplus of the personal estate of his deceased intestate wife, and it is immaterial that such provision is not contained in the statute of descent and distribution, so-called.</p> <p>Taker, J., dissenting.</p>

<p>(1) Evidence. Experts.</p> <p>An expert witness who has given his testimony upon some matter connected with the art or science of which he has special skill or knowledge, may be properly asked in cross-examination if he has always been of that opinion or if he has not at some specified time made a statement inconsistent with his present evidence, including a deposition given in an action between different parties.</p> <p> (2) Evidence. Experts. </p> <p>The scope of the cross-examination of an expert witness for the purpose of testing the value of his opinion is largely within the discretion of the court.</p> <p> (8) Evidence. </p> <p>Where evidence is otherwise admissible it should not be excluded because the jury might fail to understand it or to comprehend the distinctions properly to be drawn.</p> <p>(^1 Evidence. Negligence.</p> <p>In a personal injury case, where plaintiff claimed that an examination of her blood showed an excess of lymphocytes, evidence of the blood count of a witness offered by defendant was properly excluded, when not accompanied by evidence that the witness was in a normally healthy condition when the test was made.</p> <p>(6) New Trial. Exceptions.</p> <p>In a personal injury case, after verdict for plaintiff defendant’s motion for new-trial on the ground of excessive damages was granted unless plaintiff would file a remittitur in a certain sum. Plaintiff filed a bill of exceptions to the decision and defendant filed its bill to certain rulings of the court upon the-evidence and to the decision on the motion for new trial. The court overruled all exceptions, and agreed with the amount of damages determined by the trial court.</p> <p>Held, that under Gen. Laws, cap. 298, § 12, before the verdict should be set aside as excessive, plaintiff should be given an opportunity to remit the-amount of excess as found by this court.</p>

<p> (1) Vacation of Superior Court. Computation of Time. </p> <p>Gen. Laws, 1909, cap. 275, § 3, provides “there shall be a vacation of the Superior Court from the second Monday in July to the third Monday in September in each year” and Section 11 provides “in vacation the Superior Court shall not hear jury trials (except in special statutory cases), petitions for divorce or motions to default recognizances.”</p> <p>Cap. 32, §§ 1 and 12, provide that unless such construction is inconsistent with the manifest intent of the general assembly or is repugnant to some other part of the same statute “whenever time is to be reckoned from any day, date or act done, or the time of any act done, such day, date or the day when such act is done shall not be included in such computation.”</p> <p>Held, that the vacation of the Superior Court begins on the day after the second Monday in July in each year.</p> <p>(£) Negligence. Electric Roads. Crossing Tracks.</p> <p>Plaintiff was operating an automobile proceeding easterly down a steep grade into a road running at right angles, on which an electric railway track was located. Plaintiff was struck as he was crossing the track. The view to the north was obstructed for about 21 feet west' of the track and plaintiff’s view was further obstructed on either side by the top and side curtains of the automobile. Plaintiff testified that he looked up the track to the north at the last point he was able to do so and saw no car and did not look again until the front wheels of his car were on the track.</p> <p>There was evidence tending to show the negligence of the motorman in not stopping the car as well as evidence that he acted with reasonable care.</p> <p>Held, after verdict for plaintiff that a finding that his failure to look along the track immediately before driving upon it did not contribute to the accident could not be sustained and a new trial should be awarded.</p> <p>(S) New Trial. Approval by Trial Judge of Verdict.</p> <p>It is not enough that a verdict for a plaintiff is not against the fair preponderance of the evidence, but it must be supported by a fair preponderance of the evidence, so, where a verdict has been sustained by the trial court as not against the fair preponderance of the evidence, and such verdict in the opinion of the appellate court both on the questions of due care on the part of the plaintiff and of defendant’s liability was against the preponderance of the evidence, the approval of the trial judge cannot be given the weight accorded it under Wilcox v. R. I. Co., 29 R. 1.292.</p> <p>Vincent, J., dissenting.</p>

<p>(.1) Wills. Inheritance Taxes.</p> <p>Where testatrix was at the time of her death a resident of this state, bequeathing by will personal property which was both within and without the state, the will is presumed to have been made in accordance with the existing laws of this State.</p> <p> (8) Wills. Inheritance Taxes. </p> <p>A foreign succession tax depends upon the jurisdiction over the property and is not sustainable as a regulation of the exercise of testamentary power by the citizen of another state; therefore such tax is merely a charge upon the particular property and not upon pecuniary legacies given by the will, and as the executors are compelled to pay the tax in order to obtain control of the property, the charge is properly an expense of the administration.</p> <p> (8) Wills. Inheritance Taxes. </p> <p>Property to be administered embraces all that was originally within the state of testator’s domicile, or that the exechtor has been able to find elsewhere and bring there. Whatever sums the executor may be obliged to pay to bring the property within the state merely reduces the amount within the control of the court.</p> <p>O Wills. Inheritance Taxes.</p> <p>Where testatrix was at the time of her death a resident of this State bequeathing by will legacies out of property which was both within and without the State, the amount paid by the executors on account of the inheritance tax of a foreign state, in order to get possession of the assets of the estate cannot be deducted from the amount of the pecuniary legacies, but is a proper expense of administration.</p>

<p>(1) Building Laws. Alteration of Building. New Structure.</p> <p>Petitioner sought a permit for certain alterations and an addition to its theatre, designed to enlarge the stage area by increasing its depth and to provide additional dressing-room space, the addition being confined entirely to the stage. The theatre was completely erected when Pub. Laws, cap. 818, was passed.</p> <p>Pub. Laws, cap. 818, approved April 26,1912, as applied to the case, provided that if in the opinion of the building inspector of Providence, the public safety would be secured, such inspector might, notwithstanding the provisions of Gen. Laws, 1909, cap. 131, § 2, as amended by cap. 702 of the Pub. Laws, approved May 12, 1911, issue his permit for the erection of the theatre, provided that the land on which such theatre was to be erected was situated on the corner of two streets, and if such theatre was to be so constructed, that its front or rear should abut on one of such streets and so that each side should abut either on a street or an open alleyway at least 6 feet wide and so that each side of such theatre should extend on such street or alleyway a sufficient length to provide for all exits required by Section 27 of Chapter 472 of the Public Laws of 1909: — •</p> <p>Held, that if portions of the present theatre building or all of it which it was not necessary to tear down in order to make the additions contemplated, remained in the new structure it would nevertheless constitute the erection of a theatre building, and the owner thereof had the right to construct a theatre complying with the provisions of cap. 818 whether such building was brought into existence by entirely new construction or by enlargement and addition to a theatre building already existing and the inspector of buildings had authority to issue the permit therefor.</p>

<p>(1) Master and Servant. Proper Appliances. Assumed Risk. Contributory Negligence.</p> <p>Plaintiff had been employed by defendant for about three weeks prior to the accident, working as a carpenter in an open lot near a building in process of construction. He was directed by defendant’s superintendent to go upon the roof of the building, and to do so he was obliged to pass over a “run” placed on the girders, to a platform consisting of three planks laid side to side across two girders and over an open space. He was then obliged to go up a ladder the foot of which was placed in the lip of a girder which was not a part of the permanent construction of the floor, but which was laid across the girders. The ladder was further held securely by being tied with a rope to the steel framework at the roof. Plaintiff once left his work on the. roof, came down the ladder and across the platform and then returned to the roof, but on again coming down in stepping from the ladder to the platform the plank on which he stepped became displaced from the girders throwing plaintiff into the cellar.</p> <p>Held, that the questions of assumption of risk and of contributory negligence by plaintiff were properly left to the jury.</p> <p>Held, further, that there was no duty of the plaintiff requiring him to inspect the platform, and in the absence of any reason to the contrary he had the right to assume that it was properly constructed, in what was according to some of the evidence the usual manner, and he was not as a matter of law guilty of contributory negligence if he came down the ladder and upon the platform according to the usual manner of workmen.</p> <p> (2) Master and Servant. Assumed Risks. </p> <p>Where a floor frame was fully disclosed to view and it was apparent that the planks of a platform did not rest upon three floor girders, and were not long enough to do so, a servant assumed the risk arising from using a platform which rested on two girders only.</p> <p> (3) Master and Servant. Temporary Structures. </p> <p>In a personal injury action the question was for the jury whether a platform was or not one built under the direction of the master’s representative and furnished to the servant and his fellow workmen as a completed structure in a sense permanent, to be used by them in going to and from their work, taking the case out of the rule that when a structure is temporary and its erection merely a detail of the work that the servants are to perform, the master has discharged his duty when he provides suitable material for the construction and has used reasonable care in the selection of those to do the work.</p> <p>(4) Master and Servant. Constructive Notice.</p> <p>Where the evidence showed that the representative of the master in charge of the work, passed over a platform frequently before the accident, it is a question for the jury whether the master if it did not have actual notice of the manner in which the platform was constructed, did not have constructive notice of its dangerous condition before the servant was set at work by such representative in a place that required him to use the platform.</p>

<p> (1) Taxation. “Corporate Excess.” Corporations. “Carrying on Business.” </p> <p>Pub. Laws, 1912, cap. 769, § 20 provides “The owner of shares of stock or of bonds or debentures of any corporation liable to a tax upon its corporate ■ excess under the foregoing provisions shall be exempt from taxation in this State thereon” and Section 39 par (8) provides that “no person, co-partnership or corporation shall be taxed for shares of stock held in, or for bonds or debentures of, any corporation liable under the laws of this State to a tax upon the corporate excess of such corporation. ”</p> <p>Section 9 of the act specifies the corporations hable to a tax upon their corporate excess. “Taxation of Manufacturing, Mercantile and Miscellaneous Corporations. ” “Every corporation and joint stock company or association where-ever incorporated, carrying on business for profit in this State ... in addition to taxes on its real estate and. tangible personal property locally or otherwise assessed, shah pay an annual tax to the State upon the value of that portion of its intangible property hereinafter called its corporate excess.”</p> <p>The X Co. was incorporated under the laws of New Jersey and its certificate of incorporation provided that “a part of the business of said company is to be conducted and carried on beyond the limits of the state of New Jersey (naming such places, including the State of Rhode Island) and the principal office or place of business of said company out of this State is to be situated in the City of Providence.” Among the enumerated powers of the company were these “to purchase, hold, use, dispose of, and sell the securities of any government or of any railway or other corporation, private, public or municipal, whether such securities shall be bonds, mortgages, debentures, notes or shares of capital stock and to exercise all the rights of stockholders as to such capital stock ... to borrow money with or without security and to pledge or mortgage if necessary its franchises and property of every kind whatsoever; by and with the authority of the directors to endorse or guarantee the payment of the principal or interest or both of and upon bonds, notes or other obligations of any person or persons, firm or corporation.”</p> <p>The capital stock of the X Co. was $8,000,000 and it owned all the stock of three companies operating street railways of a total par value of $14,500,000.</p> <p>These three railway companies were local corporations owning street railway franchises and properties within this State, which were leased to the Y Co. as an operating company, which in addition to other charges paid as rent varying percentages on the capital stock of the three companies. These sums were paid to the X Co. The X Co. never owned any property except in this State or in any corporation owning property outside of this State.</p> <p>A majority of the directors, and all of the officers resided in this State. The stockholders meeting was held in New Jersey as required by the law of that state. Records of stock transfers were kept in both states.</p> <p>Directors’ meetings were held both in this State and in New York. The1 deposits were kept in this State and dividend checks sent from here, where the books were also kept. The company had no office in any other state. The signing and issuance of stock certificates took place here. The X Co. neither bought nor sold any stock in the year 1912, nor issued any of its own stock.</p> <p>Held, that the X Co. was a corporation “carrying on business for profit in this State” in the year 1912 within the meaning of the Tax Act of 1912, since its activities constituted the exercise of one of the functions which it was expressly created to perform, and the acts performed in this State being the only business undertaken by it anywhere it was liable to taxation under the provisions of Sections 9 to 20 of said act and the petitioner as a holder of the shares of the capital stock of the X Co. was exempt from taxation thereon.</p> <p> (3) Taxation. “Corporate Excess.” Corporations. “Carrying on Business." </p> <p>“Corporate excess” as used in the Tax Act of 1912 is property, peculiar to and belonging only to corporations and joint stock companies or associations. The general classification of corporations liable to this tax is effected by the use of the language “every corporation . . . carrying on business for profit in this State, ” excepting various banking institutions and public service corporations, otherwise taxed.</p> <p>If a corporation belongs to this class it is not material if it shall appear that it has no “corporate excess” as it is the liability to a tax upon “corporate excess” which exempts the owner of shares of its corporate stock from taxation thereon.</p> <p> (3) Corporations. “Carrying on Business.” </p> <p>A corporation is “carrying on business” in a particular locality if it is doing some of the work or is exercising some of the functions for which it was created; but transactions collateral thereto and incidental only, although they may be business, are not the business referred to in the expression.</p> <p> (4) Taxation. Holding Companies. “Carrying on Business for Profit.” </p> <p>The provisions of Section 11 of the Tax Act, paragraph (2) providing for the method of ascertaining the “corporate excess” “of corporations deriving their profits principally from the holding or sale of intangible property,” indicate that corporations of this character are to be included as “carrying on business for profit. ”</p>

<p>(1) Criminal Law. Indictments. Evidence.</p> <p>Upon an indictment for manslaughter, where the testimony of one medical expert was to the effect that the condition of the body indicated that the crime of sodomy might have been committed, testimony tending to show the sexual ability of the defendant to commit such crime was irrelevant and its admission constituted reversible error.</p> <p>(¡8) Constitutional Privileges. Criminal Law.</p> <p>Semble: — Whether the admission in evidence of photographs of a defendant is a violation of his constitutional privileges is not decided, but it appears that exemption from self incrimination in the state courts is not secured by the federal constitution.</p> <p> (S) Criminal Law. Indictments. Exhibits. </p> <p>Upon an indictment for manslaughter where the manner of the killing was a matter of inference, the fractured bones of the skull, offered to demonstrate the force and effect of the blows were admissible in evidence notwithstanding the fact that defendant stated that he denied all knowledge of the homicide and would not dispute any of'the evidence in that regard, the character and appearance of the exhibit not being such as to tend to prejudice the jury against the defendant.</p> <p> (4) Criminal Law. Indictments. Exhibits. </p> <p>Statements and declarations by an accused, although not amounting to a confession, but from which in connection with other evidence and the surrounding circumstances an inference of guilt may be drawn, are admissible against him as admissions, but as they are in the nature of confessions they are subject to the same rule that they must be voluntary.</p> <p> {5) Confessions. </p> <p>Statement to an accused “whatever you tell me I want you to tell the truth” did not constitute an inducement rendering the statements of accused thereupon made involuntary and inadmissible.</p> <p>(i6) Confessions.</p> <p>Statement to an accused.by one officer “if you did it say so and I will do all I can for you; if you didn’t do it don’t say you did” did not constitute an inducement so as to render statements of his to another officer, involuntary.</p> <p>(7) Confessions.</p> <p>Where an accused is taken before a magistrate, unless otherwise provided by statute, and whether cautioned or not, his confession is admissible in evidence against him, unless it was brought about by some inducement that renders it untrustworthy or has induced a false confession..</p> <p> {8) Confessions. </p> <p>The action of the court in denying a motion by defendant to strike from the record all of the testimony in so far as it purported to give statements of defendant of the nature of confessions, on the ground that they were not voluntary, will not be disturbed where there is no sufficient reason to disagree with the conclusion of the court on conflicting evidence, and the court instructed the jury that they might consider all the evidence and exclude the confession if upon the whole evidence they were satisfied it was not voluntary.</p> <p>C9) Criminal Law. Discretion.</p> <p>Where a defendant lacked three months of 14 years of age when the crime was committed, and while it appeared that he was backward, he admitted he knew it was wrong to kill, the evidence was sufficient to make the question of his capability to commit crime one for the jury.</p>

<p>Trespass on the Case for negligence. Heard on exceptions of defendant and sustained, in part.</p>

<p>(1) Municipal Corporations. Contracts. Evidence.</p> <p>In order to sustain an exception to the exclusion of a question to a witness, it must appear what the excepting party expected to prove by the answer and that he was harmed by the exclusion, and a party takes nothing by an exception, because the answer would have shown a state of facts to be true where no such offer of proof was made.</p> <p> (8) Municipal Corporations. Contracts. </p> <p>Plaintiff entered into a contract with a municipal corporation to do certain construction work in connection with building sewers. Prior to submitting his bid he was shown a certain plan, showing an existing and proposed sewerage system and upon that plan there appeared to be an underdrain upon X street, which communicated with an underdrain on Y street. The sewer and underdrain which plaintiff was to construct was to have started at X street, about 240 feet from Y street, and the underdrain was to have been connected with an underdrain that was supposed to be there connecting with an underdrain on Y street, and the sewer was to have run in a general northerly direction, with branches leading into different cross streets. Plaintiff did not find any underdrain on X street and the commission decided to have plaintiff put in an extra 240 feet of underdrain on X street, the price being the same as for the rest of the work.</p> <p>When plaintiff opened up the underdrain on Y street to connect with the new underdrain on X street he found a stream of water. Plaintiff claimed that he had been told that the underdrain on Y street was a “working under-drain” and the water showed that it was clogged, and hence was not a “working underdrain.”</p> <p>Plaintiff brought his action to recover for the work in pumping out the water from the Y street underdrain and for damage due to the water coming into the trench on X street and on the rest of the system, claiming that he was not obliged to have the same allowed as extras. Plaintiff also maintained that the underdrain on X street had nothing to do with the contract and hence that the pumping was not required in connection with anything that he was doing under the contract. Defendant claimed that while the under-drain was not originally referred to in the contract, yet it was such work as was impliedly required by the contract, under which plaintiff agreed to “do and perform all the work which may be required for the construction of sewer and appurtenances in accordance with the specifications herein contained and with the plans and directions made and to be made from time to time as the work proceeds. ”</p> <p>There was a further provision that “new work shall be added when necessary to leave all in good working order. Any changes or new work are to be paid for as extra work solely on the valuation of the engineer, but depending on his decision whether the work done is or is not included in the work required of the contractor under this contract. ”</p> <p>Held, that the construction of the additional underdrain was a modification of the original contract, to the extent of adding 240 feet of construction, or if considered a new contract, it was under the same terms and conditions as the original contract.</p> <p>Held, further, that as plaintiff agreed to lay the underdrain on X street for a certain price, unless this was made subject to the written contract he was entitled to no further compensation for work incident thereto, even if such work was much more than he had anticipated. Further, if such work was within the contract or extra work he could not recover, for under the contract he was to do all pumping, and the contract expressly provided what prices he was to receive in full for furnishing all materials and labor and also for all loss or damage arising out of the nature of the work or from any unforeseen difficulty.</p> <p>Held, further, that the contract provided how and for what plaintiff should be paid and he was limited strictly to such recovery.</p> <p>Held, further, that the fact that it was stated that the underdrain on Y street was a working underdrain would not authorize recovery.</p> <p>Held, further, that plaintiff could not recover even if it were considered as “extra work” since the contract provided that no claims for extra work should be made unless it should be done in pursuance of a written order from the engineer, and the engineer could not waive any of the provisions of the contract.</p> <p>Held, further, that while the X street extension was not ordered by the engineer in writing it was ordered by the sewer commission and was new work necessary to put the system in working order and was to be treated as an extra or as a modification or extension of the contract, and the commission could waive the provision that the engineer should fix the price, and in every other detail the original contract was followed by the parties.</p> <p> '(8) Municipal Corporations. Contracts. </p> <p>.Mere knowledge that work is being done by one who has entered into a contract to do construction work, which is claimed to be “extra work” will not create a promise to pay for it.</p> <p> '(4) Municipal Corporations. Contracts. </p> <p>A claim for extra work und er a contract to construct a sewerage system, was subject to all the conditions of the contract which provided that plaintiff should not be entitled to demand payment for any of the work, except m the manner set forth in the agreement.</p> <p>Held, further, that the contract provided that new work should be added when necessary to leave all in good working order and the work in dispute was added to the work originally specified and plaintiff was bound under the contract to do the work, but even if it did not come within any provision of the contract, the contract was so modified as to include the additional work.</p> <p>Held, further, that the provision in the contract that “the engineer shall have the right to correct any errors or omissions when such corrections are necessary to the proper fulfillment of'thé intention of said specifications or plans,” authorized the engineer to pass upon the necessity of ordering a short amount of extra pipe to make a connection at a point where it had b.een supposed there was a connection.</p> <p>Held, further, that while if there had been a fraudulent misrepresentation as to the underdrain in Y street which was material and had induced the contract, plaintiff could have rescinded the contract after the discovery of such fact and sued on a quantum meruit, or could have ratified the contract and sued in deceit for damages, whatever misrepresentation there was if any was an innocent one and not of such a character as to permit rescission and even if rescission were possible plaintiff did not rescind, but elected to affirm the contract..</p> <p> (5) Pleading. </p> <p>Held, further, that' the action of the town in opening up the drain in Y street and pouring water into his trench even if true, would not permit an action upon the common counts in assumpsit on an implied contract to pay for pumping the water out and the damages from letting the water in, but his remedy if any would be for a tort.</p>

<p> (.1) Prohibition. </p> <p>The granting of a writ of prohibition is entirely discretionary, and generally when an inferior tribunal has jurisdiction of a matter, the court will not upon an application for a writ of prohibition consider disputed questions, the determination of which has been committed by law to such inferior tribunal.</p> <p>(H) Transfers of Liquor Licenses. Prohibition.</p> <p>The power to permit the transfers of licenses to sell intoxicating liquors is conferred by statute upon boards of license commissioners, and where such a board upon the filing of two applications for the transfer of a license,, assigned them for hearing, the court will presume that it will properly exercise the jurisdiction conferred upon it and determine the matter in accordance with the law and evidence, and a petition for a writ of prohibition will be denied.</p>

<p>(1) Demurrers. Exceptions.</p> <p>In an action to recover for injuries sustained on a highway, where a special plea set up that the city was under no duty to repair the highway because prior to the accident it was adopted as a part of the State Highway system, a demurrer to the plea on the ground that it did not appear that the highway at the point where the accident occurred had been constructed and improved by the Board of Public Roads so as to take away from the city the duty of keeping it in repair, does not raise the question whether or not the taking over of a part of a highway by the State Board of Public Roads and malting it a part of the State Highway system under Gen. Laws, 1909, cap. 84, exonerates the municipality from all further responsibility for repair and maintenance and for injuries arising from its neglect of duty, but merely alleges that the defendant has not by proper allegation brought himself within the terms of the statute, and the Superior Court in overruling the demurrer held that the statute was sufficiently pleaded; therefore, the decision of the Superior •Court was merely incidental and related only to the sufficiency of the plea in form and did not go to the merits of the case, and a bill of exceptions to such decision was premature.</p>

<p>(1) Elections. Partnership. Property.</p> <p>Two members of a copartnership having equal interests who are otherwise-qualified under the constitution and laws of this State, which copartnershiphas been lawfully taxed in the year 1914 upon $1,200 tangible personal property belonging to said copartnership, and which tax was paid October 22, 1914, are entitled to be listed among the persons entitled, to vote in the-election of officers, including the city council at the election on November 3,. 1914.</p> <p>OS) Partnership. Elections. Taxation.</p> <p>The interest of partners in the assets of a firm, is property and a tax upon the assets of the firm paid by the firm is a tax paid out of said property.</p> <p> (S) Taxation. Elections. </p> <p>Pub. Laws, cap. 640, § 22, provides that no person shall be admitted to vote for certain officers or upon certain propositions “unless upon the production of a certificate . . . that he has paid such tax assessed against him ...” and Cons..E.. I., Art. II, § 2, provides that no person shall be allowed to vote for such officers or propositions unless he shall “have paid a tax assessed upon his property therein . . . .”</p> <p>Held, that the'words used in Sec. 22, “tax assessed against him” could impose no greater limitation or restriction upon the right of voting than the words of the constitution “tax assessed upon his property.”</p> <p> (4) Construction of Statutes. </p> <p>The court will construe a statute if possible to avoid the objection of unconstitutionality.</p> <p> (5) Elections. Partnership. </p> <p>Gen. Laws, 1909, Cap. 8, §.32, empowering the board of canvassers and registration of the city of Providence to compel the attendance of witnesses and the production of papers offers a means to determine whether the interest of a partner is sufficient to entitle him to vote.</p>

<p>Probate Appeal.</p>

<p>Certiorari. Heard on petition for writ and granted.</p>

<p>Assumpsit. Heard on exceptions of plaintiff and sustained.</p>

<p>(1) Labor Unions.</p> <p>Complainant entered into a contract with a musician, a member of the respondent union, to furnish certain musicians, members of the union, during the-season of an amusement resort. The contract contained the provision that it should not be “so construed as to interfere with any obligation which the musicians owe to the (union) by reason of their prior obligations to the (union) as members thereof.”</p> <p>Complainant claiming that the music was unsatisfactory, cancelled the contract and employed another orchestra also composed of members of the union, whereupon the union passed a vote forbidding its members to enter or to continue in- the employment of complainant, and complainant brought its bill seeking an injunction to restrain respondents from interfering with the engagement of members of the union. The new orchestra was not ready to continue in the employment of complainant and complainant did not care for their services unless they were retained as members of the union. The Contract was in the form prescribed by the union, and when the difficulty arose between the parties,'- complainant appealed to the union,, and after such hearing, the union found that the contract was binding upon both parties and forbade its members entering into the employment of complainant without permission of its directors, under the authority of the following by-law of the union- “Members shall not play for — -any person— who has broken a contract with a member of the union: In case of doubt as to which party has broken the contract it must be referred to the board of directors.”</p> <p>Held, that complainant must have known that it was dealing with the other party to the contract as a member and under the rules of the union.</p> <p>Held, further, that the by-law was not in itself unlawful and its enforcement upon the members of the union who had voluntarily subjected themselves to its provisions did not amount to an intimidation or to a threat justifying the interference of a court of equity, although practically compelling them to choose between the benefits of the engagement and membership in the union, but amounted to notice that complainant had brought itself within the scope of the by-law and members of the union entering into employment of complainant would be dealt with in accordance therewith. In such enforcement of its by-law, the union was acting within its rights.</p> <p> (8) Labor Unions. Penalties. </p> <p>A labor union may make and enforce by penalties, rules for the government of its members where only the rights of the union and its members are involved, and this action should not be restricted, because the employer may suffer incidental damage thereby.</p> <p> (8) Equity. Preliminary Injunctions. </p> <p>'To secure a preliminary injunction the complainant should satisfy the court that there is a substantial question to be tried. Whether irreparable injury would result depends largely upon the character of the act alleged to be injurious. Such act must not only be injurious, but also unlawful. If an injury follows from a proper and lawful act it is damnum absque injuria.</p>

<p> (1) New Trial. Notice to Adverse Party. </p> <p>Gen. Laws, 1909J cap. 298, §§ 15 and 16, provide two ways in which notice of the pendency of a motion for a new trial may be secured to the adverse party (1) a notice under Section 15 from the party filing the motion and (2) notice under Section 16 ordered by the court at the time such motion is assigned for hearing, provided the notice has not been given under Section 15.</p> <p> (%) New Trial. Notice to Adverse Party. </p> <p>Where no notice of the filing of a motion for new trial was given under Gen. Laws, 1909, cap. 298, § 15, by the moving party, and the motion was assigned for hearing by the court and no notice was ordered by the court to be given to the adverse party under Section 16, and the motion was heard and denied, upon filing of bill of exceptions it would be the duty of the court to return the case to the Superior Court to again hear the motion for new trial after ordering proper notice, unless such course would result in delaying final determination of the matter, with additional expense, without any reasonable prospect that it would serve any useful purpose.</p>

<p>(1) Probate Law. Executors and Administrators.</p> <p>Under Gen. Laws, 1909, cap. 312, §§ 10 and 11, the right of priority of the-husband, widow and next of kin, being suitable and competent to appointment as administrator, is restricted to residents of the state.</p> <p> (S) Probate Law. Non-Resident. Administrator. </p> <p>'The inference to be drawn from the provisions of Gen. Laws, 1909, cap. 312, §§10 and 11, is that the appointment of a non-résident as administrator is contemplated only in the event that the peculiar circumstances of the case justify the exefcise of the permissive authority to make 'such appointment.</p> <p>•(S) Probate Law. Accident and Mistake. Executors and Administrators.</p> <p>Where letters of administration were issued to a creditor of an estate within the period of thirty days after the decease of the intestate, a petition of a non-resident sister of deceased for leave to take an appeal, on the ground of accident and mistake will be denied where there are no circumstances which would have enabled the probate court to properly exercise its discretion and appoint petitioner administratrix upon the estate had she applied within the thirty days and nothing warranting the removal of the administrator.</p>

Gilbert v. Hayward appeal from decree of probate court, beard on exceptions of botb parties from decision of Superior Court. All exceptions overruled. Hayward v. Gilbert appeal from decree of Superior Court, heard on appeal of respondents. Appeal, except as to certain portions of decree, which are reversed, affirmed.

<p>(1) Taxation. Compensation of Collector. Municipal Corporations. Bonds.</p> <p>A town council duly elected plaintiff as collector of taxes, but did not fix his compensation nor offer any sum to him for his services. On the same day plaintiff complied with the provisions of the statute by taking the oath of office and on the following day at a financial town meeting it was voted that $600 be appropriated as the salary of the tax collector. Thereafter plaintiff notified the town council that he refused to accept the sum specified and to agree with the town upon said sum. Plaintiff tendered a bond to the council which refused to accept it, and voted that the sum of $600 be appropriated for his compensation. Thereafter the council in accordance with the mandate of the court approved the bond and at the same meeting plaintiff notified the council that he refused to accept the sum specified by the vote of the financial town meeting and also the sum specified by the vote of the council and to agree with the town upon that sum. Plaintiff proceeded to collect the taxes and turned the same over to the town treasurer and presented Ao the council a claim for compensation for five per cent, of the taxes collected and the same not having been satisfied brought his action.</p> <p>Gen. Laws, 1909, cap. 62, § 4, provides “Collectors shall be paid for collecting at the rate of five per centum unless they shall have agreed with the town for a less sum; which fees shall be paid otít of the town treasury. ”</p> <p>Held, that the collector of taxes cannot be deemed to have forfeited his right to demand the five per centum, unless he has agreed with the town for a less sum.</p> <p>Held, further, that the bond took effect as of the date of the delivery thereof to the council and therefore plaintiff became fully qualified prior to the action of the council when it attempted to fix his salary at $600 by appropriation. (Distinquishing Barber v. Adams, 33 R. I. 481.</p> <p>Held, further, that while the council could have made the amount of the compensation a condition of the election, it had no power to compel plaintiff to accept a certain sum or “to agree with the town.”</p> <p>Held, further, that the action of the financial town meeting was of no effect, since the statute as to compensation was itself an appropriating statute, requiring no appropriation by the financial town meeting, the statute being of higher obligation than any action that might be taken by such a meeting. (Distinguishing Quinn v. Barber. 31 R. I. 538, and Town of Warwick v. Barber, 32 R. I. 445.)</p> <p>(0) Municipal Corporations. Notice of Claim. Division of Towns.</p> <p>Jan. 20, 1913, plaintiff presented a claim to the town council of Warwick and no satisfaction being made him by the town, treasurer within forty days his right of action against the town treasurer accrued March 2,1913. March 14, 1913, an act dividing the town of Warwick into two towns took effect.</p> <p>By Section 11 of that act the town officers in office in the town of Warwick were to hold office until the officers of the respective towns of Warwick and West Warwick were elected.</p> <p>Plaintiff brought suit by writ dated May 23, 1913, against the town treasurer of Warwick, who was continuing to perform such duties for both of the towns, no mention being made in either writ or declaration of the town of West Warwick. After the first election in each of the towns, the two treasurers were served with process and made defendants, and they entered • appearance.</p> <p>By Section 14, “causes of action against the present town of Warwick in which no suit has yet been brought shall be brought in the manner prescribed in Chapter 46 of the General Laws of 1909, but against both the towns of Warwick and West Warwick.”</p> <p>Held, that the procedure taken was proper.</p>

<p> (1) Foreign Executors and Administrators. </p> <p>As a general rule in the absence of a permissive statute, the authority of an executor or administrator to sue as the personal representative of a decedent or the liability of such personal representative to be sued in that capacity, is restricted to actions brought by or against him in the courts of the state wherein administration was granted to him and an action commenced in favor of or against a person in his lifetime cannot be prosecuted or defended after his death by his personal representative appointed in a state other lhan that of the forum.</p> <p> (8) Executors and Administrators. Foreign Executors and Administrators. Equity. </p> <p>A bill in equity against three officers and a stockholder of a corporation, alleged that complainants having recovered judgment against the corporation had brought an action at law against the stockholder to recover the amount of the judgment. The bill alleged that the officers had possession of the books and papers of the corporation, but did not allege that the stockholder had any cf such books or papers in his possession. An injunction was asked to restrain the respondents from removing the books and papers from the jurisdiction of the court. One of the respondent officers demurred, and the court by decree sustained the demurrer and dismissed the bill as to him. Complainants appealed. The respondent stockholder, deceased, a resident of a foreign state, where administration was. granted upon his estate and upon motion of complainants that his executors be notified to take upon themselves the defence of the cause:</p> <p>Held, that the provisions of Gen. Laws, 1909, cap. 318, §§ 5 and 6, relative to the prosecution or defence of actions commenced in the life time of a decedent, by his executor or administrator, did not apply to executors or administrators appointed in other jurisdictions.</p> <p>Held, further, that the cause of action against the respondent stockholder was of such a personal character that it did not survive against his exeeutols.</p> <p>Held, further, that the executors were not necessary parties to the appeal since the decree did not affect the estate of decedent.</p> <p>Held, further, that if such representatives had been necessary parties the death of respondent should have been suggested in the Superior Court and the attempt made to bring in the proper parties to represent the estate previous to the hearing on the demurrer and entry of the decree, each of which were subsequent to his death.</p>

<p> (1) Guardian and Ward. Appeals. Certiorari. Procedure. </p> <p>As an expectant heir of the ward is not a person aggrieved by a decree appointing a guardian of a person of full age, he is not entitled to seek for a writ of certiorari for the purpose of quashing the decree appointing the guardian.</p> <p> (2) Guardian and Ward. Appeals. Procedure. </p> <p>A person of full age placed under guardianship by a probate court “from a w'ant of discretion in managing his estate” has a right to appeal from the decree of such court and he can take it in his own person, notwithstanding the usual rule that actions in behalf of a ward should be brought in the name of the ward by his guardian, and so also the ward may attack the validity of a decree appointing such guardian, by certiorari, in his own proper person.</p> <p> (S) Guardian and Ward. Next Friend. </p> <p>When the interests of a guardian and ward are adverse, as in an appeal from a decree appointing the guardian, if the ward needs to be represented by another person it should be by a next friend but in such case the disability of the ward must be alleged.</p> <p>O Guardian and Ward. Next Friend. Intermeddler.</p> <p>Where a next' friend representing a ward proves to be merely an intermeddler, the petition will not be considered.</p>

<p> (1) Taxation. Evidence. Records. </p> <p>A board of tax assessors is not required by statute to keep a record of its doings.</p> <p> ($) Taxation. Evidence. Records. </p> <p>In an action to recover a tax under Gen. Laws, cap. 60, § 28, where it appeared that the original notice of the tax assessors had been lost, a copy of the notice printed in a public newspaper was properly admitted in evidence, supported by the testimony of the town clerk that the notice for the year in question was authorized by the tax assessors and that a copy was furnished by him to the newspaper for publication and other copies posted in three public places and that the notices published and posted were true copies of the original.</p> <p> (8) Taxation. Public Officials. Engagement. </p> <p>A certificate of the engagement of a public official is only evidence that the proper oath has been administered, which fact can be established by oral testimony.</p> <p>Tax assessors as sworn officers of the law are entitled to the presumption that their official acts have been properly performed until the contrary is proved.</p> <p> (4) Tax Assessors. Organization. </p> <p>Formal organization of a board of tax assessors is not necessary where it appears that the assessors were elected, took the usual engagement and assembled and discharged their duties.</p> <p>(5) Taxation. Notice.</p> <p>The vote of a town ordered a tax to be assessed on or before October 1. The notice of the assessors called for the bringing in of accounts of all ratable estate describing and specifying the value of each and every parcel of the real and personal estate, and stated that “for the purpose of receiving such account said board will be in session ... on September 30 and October 1, 1908, from 9 o’clock A. M., to 4 o’clockP. M. For the purpose of assessing said tax the board will meet at said office on September 30 at 4 o ’clock, P. M., and all real estate will be taxed to the persons or bodies corporate in whose name it stands at that time.”</p> <p>The tax roll bore the date of September 30, and there was evidence that both the real and personal estate were assessed at the same time, and that the date of such assessment appeared upon the tax roll.</p> <p>Held, that it was not material to the taxpayer when the assessors performed their work provided there was nothing done or omitted which deprived a defendant of some substantial right.</p> <p>Held, further, that it appeared the work of assessing the tax was performed within the time ordered by the town and that the taxpayers had ample notice of the time when and the place where they should make returns and that the posting of the notices was sufficient.</p> <p>Held, further, that it was apparent it was the intention of the assessors to tax both real and personal property at the same time, and the information relative to the taxing of the real estate did not warrant the assumption that the notice as a whole referred only to real estate.</p> <p>(7) Taxation. Actions to Recover Tax.</p> <p>An action to recover a tax cannot be defeated by mere irregularities which do not go to the jurisdiction of the assessors or deprive the defendant of some substantial right.</p> <p> (8) Taxation. Warrant to Collector. Actions. </p> <p>In an action to recover a town tax it appeared that plaintiff had continuously for many years held the offices of town treasurer and collector of taxes. The warrant authorizing him to collect a tax was directed to him as town treasurer and required Mm to collect the tax “according to law and to pay the same into the treasury of said town” “and for so doing this shall be your sufficient warrant. ”</p> <p>Held, that the fact that plaintiff was named in the warrant as town treasurer was immaterial.</p> <p> (9) Taxation. Tax Collectors. Actions. </p> <p>Irregularities existing in the election of a tax collector do not affect the validity of the assessment or the obligation of a taxpayer to pay the tax.</p> <p>(10) Taxation. Bonds of Collectors. Actions. Evidence.</p> <p>Where a town treasurer was directed to collect the taxes by the duly executed warrant of the town, whether or not he has given a sufficient bond to the town is not material, in an action brought by him to recover such tax.</p> <p> (11) Taxation. Assessment. </p> <p>A tax assessment “X. deceased, estate of, B. executrix” sufficiently indicates that the property is taxed to the executrix, as required by Gen. Laws, Cap. 57, § 9, the rest of the entry being merely descriptive.</p>

<p> (1) Divorce. Petition to Vacate Decree for Fraud. Exceptions. </p> <p>It has been the established principle in this state that where a final decree of divorce has been procured by fraud practiced by the petitioner, in which the respondent has not participated, and where the court has been induced by that fraud to take jurisdiction of a case of which it in fact had no jurisdiction, the decree will be vacated even after the lapse of years, it being always considered that great caution should be exercised in scrutinizing the testimony in support of such petition.</p> <p>A petition to vacate a decree for such cause, filed within the period of six • months after decision is properly filed as incidental to and a part of the pending case and if filed after final decree it should be treated as an independent petition, and in either case a bill of exceptions will lie from the decision of the justice upon the petition.</p>

<p>(Í) Indictment. Embezzlement. Accessory. .</p> <p>While Gen. Laws, 1909, cap. 345, § 18, expressly refers only to the form of an indictment against the principal in the crime of embezzlement (permitting the offence to be alleged generally without specifying any particulars), as a result of the rules of criminal pleading applicable to the prosecution of a principal and an accessory before the fact in the same indictment, the section applies to such an indictment and affects the form thereof.</p> <p> (2) Indictments. Embezzlement. </p> <p>Since at common law there was no crime of embezzlement there is no common law form of an indictment for embezzlement. .</p> <p>(S) Indictments. Embezzlement. Continuing Offence.</p> <p>Gen. Laws, 1909, cap. 345, § 18, permitting the crime of embezzlement to be charged generally without specifying any particulars and on the trial allowing evidence to be given of any such embezzlement committed within six months next after the time stated, did not have the effect of rendering invalid an indictment wherein the particulars are set out.</p> <p> (4) Indictments. Embezzlement. Bill of Particulars. </p> <p>Where in an indictment under Gen. Laws, 1909, cap. 345, § 18, charging embezzlement in general terms, the defendant is not informed of the act or acts intended to be proved against him, his remedy is by a motion for a bill of particulars.</p> <p> (5) Indictments. Embezzlement. Bill of Particulars. Continuing Offences. </p> <p>In an indictment drawn under Gen. Laws, 1909, cap. 345, § 18, if the bill of particulars discloses an intent to offer' proof of different acts within the six months next after the date named, no evidence could be offered outside of that period, but if it discloses the intention to prove a single act it is unimportant whether the act be before or after the date named.</p> <p>(6) Indictments. Embezzlement. Continuing Offences.</p> <p>The giving of evidence of different and cumulative acts of embezzlement under Gen. Laws, 1909, cap. 345, § 18, assuming it to be allowable, is merely permissive, and does not affect the proof of a single act of embezzlement allowed to be charged in general terms in the indictment, by virtue of that section, and therefore an indictment properly drawn under this section would not of itself indicate whether the crime charged consisted of a single act or of a number of fraudulent takings within a period of six months combined and treated as one offence.</p> <p>(7) Indictments. Embezzlement. Continuing Offences.</p> <p>Where indictments under Gen. Laws, 1909, cap. 345, § 18, against a principal and accessory before the fact, alleged in general terms an embezzlement by the principal and showed by the bills of particulars an intent to prove embezzlement by him from time to time, during the periods covered by the indictments, they did not charge a continuing offence subject to one prosecution only, and one penalty up to the time of the bringing of the indictment.</p> <p> (i8) Indictments. Continuing Offences. </p> <p>In a continuing offence there can be but a single prosecution.</p> <p> (9) Embezzlement. </p> <p>The talcing as a single act at the same time and place of one or several articles constitutes a distinct offence of embezzlement.</p> <p> (10) Indictments. Embezzlement. Continuing Offences. </p> <p>Under Gen. Laws, 1909, cap. 345, § 18, the words “evidence may be given of any such embezzlement committed within six months ” permit the proof of different taking^ within such period as constituting one offence for the purpose of permitting a conviction based on the aggregate amount thus taken, but this does not constitute the offence a continuous one.</p> <p> (11) Indictments. Embezzlement. Accessory. </p> <p>In charging acts of embezzlement extending over a period of five years, some in every six months, at least ten indictments are permitted by Gen. Laws, 1909, cap. 345, § 18. These ten indictments are separate proceedings.</p> <p> (18) Indictments. Embezzlement. Accessory. </p> <p>While Gen. Laws, 1909, cap. 345, § 18, is applicable to the form of the indictment against a principal and accessory it does not equally apply to the proof of their different offences. The offence of the accessory naturally precedes that of the principal and must be so alleged and proved.</p> <p> (IS) Indictments. Embezzlement. </p> <p>A defendant may be charged as an accessory before the fact to an offence of embezzlement, where it appears that the acts of embezzlement covering the period of six months following the date laid in the indictment form part of a series of acts of embezzlement of the same character begun prior to and covering a period preceding and up to the date laid in the indictment.</p>

<p>(1) Evidence. Confidential Communications.</p> <p>Confidential communications made to a physician are not privileged so as to protect the physician from diVulging them as a witness.</p> <p>The contents of a report made to defendant by a physician who made a physical examination of the plaintiff after an alleged accident are not privileged, and the physician may be interrogated by plaintiff as to statements made by him in such report.</p> <p> (8) Evidence. Examination of Memoranda by Witness. </p> <p>Where a physician had made a physical examination of plaintiff on behalf of defendant after an alleged accident and reported in writing to defendant the result, and had in direct examination denied that he had used certain language in the report, the court was acting within proper discretion as to the conduct of the cross-examination in requiring the witness to read the entire report to the jury.</p> <p> (S) Common Carriers. Negligence. </p> <p>In a personal injury case, evidence considered and new trial granted.</p>

<p> (1) Corporations. Officers. </p> <p>The treasurer or secretary of a corporation cannot bind it except within the scope of the authority given to them by the corporation; they have no authority merely by virtue of their offices, or unless entrusted with the general management or with the management of a particular part of the business.</p> <p> (2) Corporations. Officers. </p> <p>Plaintiff received an order from R. P. & Co. for certain tools, which'order it turned over to defendant, who was to manufacture them under an agreement with plaintiff. It was stipulated in the order that the tools were not to be made until a satisfactory sample had been accepted by R. P. & Co.</p> <p>Held, that testimony as to the admission by the general superintendent of defendant who had charge of the preparation of the sample, that R. P. & Co. had approved the sample, was admissible as being within the scope of the authority of the witness.</p> <p> (8) Evidence. Contracts. Ambiguity. </p> <p>Agreement between parties provided that in consideration of the payment of a stated sum by defendant to plaintiff it was agreed that all claims of any nature whatsoever of plaintiff against defendant, and all claims of defendant against plaintiff should be cancelled and that all contracts written or verbal should be cancelled, “it being understood however that this agreement does not affect any contracts or agreements covering commisions to be paid for work yet to be performed. ”</p> <p>Held, that from an examination of the evidence it appeared that the words “contracts or agreements covering commissions” were used inaccurately, therefore allowing resort to extrinsic evidence to determine which contracts were covered by the exception.</p>

<p> (1) Splitting Causes of Action. Judgments. Res Adjudicata. What Can be Shown Under Common Counts. </p> <p>Plaintiff under agreement with defendant became obligated to render services as superintendent of defendant’s mill for one year, from September 30, 1910.. He was discharged May 27, 1911. July 21, 1911, plaintiff brought suit, the declaration in the first count setting up the contract of service; averring that plaintiff had fulfilled all his obligations thereunder, but that defendant on May 27,1911, had refused to retain him in its employ.' The second count set up the indebtedness of defendant to plaintiff in the sum of $1,000 and contained the common counts. Plaintiff filed a bill of particulars, setting out the claim for salary for 8 weeks, from May 27,1911, to July 21, 1911, at $75 a week, $600. On January 16, 1912, by agreement entry was made in the action, “Judgment for plaintiff for $537.” “Judgment satisfied.”</p> <p>This judgment was satisfied. Thereafter plaintiff brought his action setting out the above contract and his discharge and that defendant had refused to pay him for the portion of the year from July 21,1911, to September 30, 1911. In a second count plaintiff set out an agreement on the p'art of defendant to pay a portion of his'moving expenses.</p> <p>Held, that the bill of particulars, together with the entry of judgment, showed that the former judgment simply included the amount of the salary which was due July 21, 1911, and therefore plaintiff was entitled to maintain the present action for the balance due under the contract.</p> <p>Held, further, that as the matter of moving expenses was not included in the bill of particulars in the former action, testimony could not have been offered concerning it in that case, and therefore the former judgment was not a bar to its recovery in the present suit.</p> <p>Held, further, that as neither the future wages nor the moving expenses could have been recovered under the common counts, the presence of such counts in the former action did not support the defendant's plea of res adjudicata.</p> <p> (8) Agreement of Counsel. Entry of Settlement. </p> <p>An entry of settlement by agreement of counsel must be understood to relate to the entry of a judgment consistent with the pleadings in the case.</p> <p> (8) Judgments. Parol Evidence. </p> <p>Where in an action, the defendant introduces a former judgment between the parties under his plea of res adjudicata, parol evidence is admissible to show the extent of the recovery in the former suit.</p> <p>(4) Judg?nents. Res Adjudicata. Parol Evidence.</p> <p>Extrinsic evidence is admissible to show that a claim though set out in a former record was not submitted for adjudication and hence was not covered by the judgment and parol evidence may also be offered to show that a prior action was prematurely brought.</p>

<p>(1) Probate Law. Sale of Real Estate.</p> <p>To warrant the entry of a decree to authoi'ize an administrator to sell the real estate of intestate, he should establish by a preponderance of the evidence that the personal estate was insufficient to pay the debts of the deceased, his funeral expenses and charges of administration, and further either that it was necessary to sell all of the real estate described in the decree or that the real estate or some part thereof would be greatly injured if a sale of only a part thereof should be ordered.</p> <p> {£) Probate Law. Sale of Real Estate. </p> <p>On a petition of an administrator to sell the od e-eighth interest in the real estate of intestate, it appeared that the only debts remaining unpaid were two notes secured by mortgages; funeral expenses of $198.50, and charges of administration of $804.40, and his own charges and the charges of an attorney, for which no bills had been rendered.</p> <p>The- total amount of the inventory of the goods and chattels was $1,754.67. This_ consisted of an one-eighth interest in second-hand machinery. This interest, together with the real estate, was subject to the lien of two mortgages for an amount in excess of the value of the chattels.</p> <p>It appeared in evidence that the one-eighth interest of deceased in the real estate, was largely in excess of the amount due on the mortgages, and that the mortgagees did not require a lien upbn the chattels for their security.</p> <p>Held, that the administrator should first have attempted to have the interest of the intestate in the chattels released from the lien of the mortgages.</p> <p>Held, further, that the estate presented a case where the insufficiency of the personal estate to pay the charges must be proved before resort should be had to>the real estate.</p> <p>Held, further, that no evidence was offered as to the value of the whole or either of the parcels of the real estate, or as to the relation of the four parcels to each other, or in what way the sale of an one-eighth interest in less than all the land would greatly injure the whole estate or any part thereof, and that until this appeared a decree authorizing the sale of all the real estate should not be entered.</p>

<p>(1) Wills. Trusts. Contingent Gifts. Classes.</p> <p>By will testator bequeathed his estate in trust, to pay over the income to the widow during her life, with bequest over of “all of my estate which may be remaining in the hands of my said trustee at the time of the decease of my said wife, to my children, share and share alike, and should any of my children die, previous to their mother having child or children my will is, that the issue of such deceased child, shall take from my estate the share its parent would have taken had that parent survived its mother, and that subject to these provisions my estate shall vest in my children-aforesaid in fee simple. ”</p> <p>After the decease of testator, the widow advanced certain money to one of the sons, and in consideration of such advances, the widow, and the son entered into an agreement that upon the termination of the trust “wherein he (the son) has a vested interest contingent upon his surviving (his mother) the said amount shall be deducted from any share divisible to him, out of said trust. ”</p> <p>Thereafter the son became bankrupt, his adjudication and discharge in bankruptcy both occurring prior to the death of the life beneficiary, and after her decease, his trustee in bankruptcy claimed his share in the trust estate, except so much as might be found due the estate of his mother. Another son deceased in the life time of his mother, unmarried, and intestate.</p> <p>Held, that the intention of testator was not to give any present estate or interest to the children at the time of his death, but to postpone the gift to them until the decease of the widow, and to have the estate remaining in the hands of the trustee at her death distributed among a class composed of his children living at the death of the widow and the issue of any deceased child, living at that time. The members of this class could not be ascertained until the death of the widow and the issue of a deceased child would take as purchasers under the will and not as heirs of the deceased child. Such a gift was wholly contingent both as to the time of vesting and as to the persons in whom it would vest, and was neither devisable, nor descendible, nor capable of being conveyed, while the life estate continued, but during that period was only a future possibility contingent upon the survival of the child.</p> <p> (8) Wills. Trusts. Contingent Gifts. </p> <p>Held, further, that the executor of the will of the life beneficiary was entitled to receive from the share of the son the amount advanced to him under the terms of the executory agreement.</p> <p> (8) Bankruptcy. Property Passing to Trustee. </p> <p>Sec. 70 of the Bankruptcy Act, provides that “The trustee shall be vested by operation of law with the title of the bankrupt as of the date he was adjudged a bankrupt, to all (5) property which prior to the filing of the petition he could by any means have transferred or which might have been levied upon and sold under judicial process against him.”</p> <p>Held, that the son had no interest in the trust estate, which passed to his trustee in bankruptcy.</p>

<p> (1) Deeds. Description. Covenants. </p> <p>Where in a deed, the premises are particularly described by metes and bounds, the additional statement that the tract contains a certain number of acres is merely descriptive and does not create a covenant of quantity.</p> <p>Where it clearly appears that it was the intention to convey a definite quantity . and that only, the rule is otherwise.</p> <p>(0) Deeds. Metes and Bounds.</p> <p>Metes and bounds are the boundary lines or limits of a tract, and when a tract is bounded on lands of other named persons, those lands are the metes and bounds.</p>

<p> (1) Principal and Agent. Contracts. Physicians. </p> <p>In an action to recover for professional services of a physician, in the treatment of an employee of defendant, it appeared that for more than two years prior to the services in question, plaintiff had been summoned by the superintendent of defendant to attend persons sick or injured in the store of defendant. The superintendent testified that he informed plaintiff of the limitation upon his authority to bind defendant beyond first aid treatment. Plaintiff denied this.</p> <p>Held, that the question of plaintiff’s knowledge as to the extent of the authority of the superintendent was one for the determination of the jury.</p> <p> (2) Principal and Agent. Physicians. Contracts. </p> <p>As a general rule the superintendent of a mercantile corporation has no implied authority to bind the corporation to pay for the services of a physician called by the superintendent to attend an employee injured in the course of his employment, but the corporation by its previous conduct may have so held the agent out as one having full authority to employ physicians that it will not be permitted to disavow the agent’s acts in that regard.</p> <p> (3) Personal Services. New Trial. </p> <p>In an action to recover for professional services of á physician called by the superintendent of defendant to treat an employee injured in the course of his employment, after verdict for plaintiff:</p> <p>Held, that as there was evidence both as to previous transactions of a similar character and also as to defendant’s silence in the case at bar after it had notice that plaintiff was performing the services, which if believed by the jury, would warrant the finding, the verdict would not be disturbed.</p> <p>(4) Personal Services. Waiver.</p> <p>In an action by a physician to recover for services rendered to an injured employee of defendant, it appeared that for more than two years plaintiff had attended many of defendant’s employees upon the call of the superintendent without knowledge of any limitation on the authority of the latter and in every case bills had been rendered to defendant.</p> <p>Held, that the fact that in some cases upon request of the superintendent, plaintiff had made out another bill against a Benefit Association which had been paid, was not a waiver of his claim against defendant.</p> <p> (5) Personal Services. Principal and Agent. Notice. </p> <p>Notice to an agent of a mercantile corporation, especially empowered to attend to employees injured in the store and to engage physicians for their treatment to a limited extent at least, regarding the conduct and claims of physicians so employed, constitutes notice to his principal, and where such agent has knowledge that a physician is continuing to treat a case with the intention of holding the principal responsible, it is the duty of the principal to explain the limitation upon the authority of its agent, and where it remains silent it will not be permitted later to deny liability.</p> <p>Parkhurst and Vincent, JJ., dissenting.</p>

<p> (1) Wills. </p> <p>Unless a contrary intention appears in the will, it will be presumed that it was the intention of testator to dispose of his entire estate, and not to die intestate as to a portion of it, and where a will is susceptible of two constructions the law will place upon it that construction which disposes of the entire estate.</p> <p> (8) Wills. Construction. </p> <p>The intent of a testator may be found in the terms of the will or may be determined in case of ambiguity or misdescription by extrinsic evidence. In carrying out the apparent intent of a testator, words may be rejected or so restrained in their application that the literal meaning of a particular sentence will be changed. ,</p> <p>(8) Wills. Misdescription.</p> <p>A will which, describes the property devised with sufficient particularity to establish its identity is a valid instrument. It is not necessary that the description of the property be accurate if there is enough in the will itself, together with such extrinsic evidence as may be offered to lead to the identification of the estate.</p> <p> (4) Wills. Misdescription. </p> <p>Testamentary devise by a non-resident of “my piece of land in Providence, R. I.”</p> <p>Testator did not own any land in Providence, either at the time of the execution of the will or thereafter, but his only real estate in Rhode Island consisted of a parcel of land in “East Providence. ”</p> <p>Held,, that it being apparent from the will that testator intended to dispose of his entire estate, the word “Providence” would be disregarded as a misdescription and the property allowed to pass to the devisee.</p>

<p> (1) New Trial. Questions of Fact. </p> <p>Where upon conflicting testimony the verdict has been approved by the trial court, the questions of fact must be regarded as settled, and an exception to a denial of a motion for new trial based on the ground that the verdict was against the law and the evidence will be overruled.</p> <p>(0) Contracts. Parol Agreement. Principal and Agent.</p> <p>A principal is not bound by a parol agreement made with his agent, by a party who has entered into a written agreement with the principal through such agent, where the parol modification never came to the knowledge of the principal.</p> <p>(3) Contracts. Parol Agreements. Principal and Agent.</p> <p>Where a contract made through an agent has been accepted by the principal, no modification can be made between the other contracting party and the agent without the approval of the principal.</p>

<p>(1) Claim of Jury Trial on Entry Day. Payment of Costs.</p> <p>Gen. Laws, cap. 286, § 7, provides “In all civil cases in a district court the plaintiff or defendant may claim a jury trial in writing on the entry-day of the writ and either plaintiff or defendant may claim a jury trial in writing within two days, exclusive of Sundays and legal holidays after the decision is made: Provided, that the party claiming such jury trial at the time of claiming the same shall pay all costs. ”</p> <p>Held, that, the statute gave to a district court authority to tax such costs as have been necessarily incurred by a plaintiff in entering a case, and required a defendant claiming a jury trial on entry day to pay the same as a condition precedent to the certification of the case to the Superior Court, and a district court has no jurisdiction to certify a case unléss such payment is made.</p>

<p>(1) Taxation. Notice of Assessors. Time of Assessment.</p> <p>A notice of tax assessors stated: “Whereas the qualified electors of the town of X ordered a tax to be assessed on or before the 1st day of October, 1908, and the undersigned have also prescribed such time for the assessment of said tax. Por the purpose of assessing said tax the board of assessors will meet at said office on Sept. 30,1908, at 4 o ’clock P. M. ”</p> <p>Held, that it sufficiently appeared that the time when the tax was to be assessed was at 4 o’clock P. M., on Sept. 30, 1908.</p> <p> (8) Taxation. Notice. Evidence. </p> <p>Where the court has found that the notice of tax assessors was sufficient in respect to setting forth the time when the assessment on all property both real and personal was to be made, the testimony of a member of the board of assessors that no time was fixed by the board when the personal property would be assessed, amounts to nothing more than the expression of an opinion as to the legal effect of the notice.</p> <p> (S) Taxation. Notice. Time for Bringing in Accounts. </p> <p>Where the notice of tax assessors fixed Sept. 30 and Oct. 1 when they would be in session for the purpose of receiving accounts, the assessment to be made Sept. 30, at 4 o’clock P. M., a taxpayer is not deprived of a fair opportunity to file his account, which he may do either before or after the assessment.</p> <p> (4) Taxation. Tax Roll. Control of Tax Roll by Assessors. </p> <p>While a tax roll should bear the date of the assessment, the. assessors retain full control over it until it is completed, dated, signed and turned over to ^the town clerk, whatever may be the necessary delay in completing it due to changes in titles, examination of accounts or corrections which cannot in the nature of things be made prior to the hour when the assessment is made.</p>

<p> (1) Scope of Bills of Particulars. ' </p> <p>A bill of particulars confines the proof to the subject-matter of the items set forth therein and thus affects the amount of the judgment to which a plaintiff may be entitled.</p> <p>Practically a bill of particulars is supplementary to the declaration and to all intents a part thereof. A plaintiff therefore after having precisely stated his claim cannot be permitted to offer testimony in support of ascititious claims which he has already eliminated.</p> <p> (2) Splitting Causes of Action. Running Account. </p> <p>Where a plaintiff had a claim for wages under a written contract and a claim for moving expenses based on a verbal agreement and brought suit to-recover wages accrued to a certain date, as such wages and expenses did not constitute a running account, the rule as to splitting causes of action did-not apply and plaintiff could bring suit and recover judgment for wages' due under the contract, without imperiling his right to maintain another action for the recovery of the balance of the wages and the moving expenses.</p> <p> (3) Contracts. Installments. Splitting Causes of Action. </p> <p>Where ynder a contract money is payable in installments, a suit may be maintained for each installment as it becomes due, but if more than one is due when suit is brought all of the installments then due constitute but a single cause of action and the rule against splitting applies.</p>

<p> (1) Divorce. Condonation. </p> <p>Condonation is always upon the condition implied by law that there shall be no just cause for complaint in the future.</p> <p> (8) Divorce. Condonation. </p> <p>Where the charge in a divorce petition is cruelty, much less cruel treatment than would be necessary to be a good ground for divorce will suffice to avoid the defence of condonation and a wife is more indulgently considered as to condonation than the husband so that voluntary cohabitation on her part following acts of cruelty will not always operate as a condonation to defeat a petition for divorce.</p> <p>(S) Divorce. Condonation.</p> <p>Under the rule that cohabitation while a petition for divorce is pending is regarded as condonation and a bar to the relief sought, where a petitioner testified that after the petition was filed, she went back to her husband “to see whether he would be good or not” and that she “thought he probably -would be all right,” the inference is not unwarranted that she returned intending to live with respondent on condition that he would treat her with conjugal kindness, and where further acts of cruelty are proved, the defence of condonation falls.</p> <p> (4) Divorce. Condonation. Procedure. </p> <p>Where a wife filed a petition for divorce on the ground of cruelty and while the petition was pending returned to her husband and because of further acts of cruelty left him, the petitioner is entitled to proceed under the original petition, but must obtain relief upon acts of respondent committed before the filing of the petition, and if respondent sets up the defence of con-donation by her conduct since such filing petitioner may present evidence of his conduct to defeat such defence.</p>

<p> (1) Sales. Contracts. Auctions. Puffing. </p> <p>Where property is offered without reserve, by-bidding is illegal, and a vendor cannot hold the purchaser where the price has been run up by means thereof. In so far as this rule relates to the sale of goods by auction it is embodied in Gen. Laws, 1909, cap. 262, § 5.</p> <p> ($) Sales. Contracts. Auctions. Puffing. </p> <p>Gen. Laws, 1909, cap. 262, § 5, (2) provides “A sale by auction is complete when the auctioneer announces its completion by the fall of the hammer. Until such an announcement is made any bidder may retract his bid; and the auctioneer may withdraw the goods from sale unless the auction has been announced to be without reserve. ”</p> <p>Held, that while not in terms referring to the sale of real estate no reason was apparent for not following the rule in such sales.</p> <p>(5) Sales. Contracts. Auctions. Puffing.</p> <p>Where real estate was offered at auction without notice of any reserve, a bid is but an offer to. purchase and not the acceptance of an offer, and no contract exists until the hammer falls. Therefore where a bona fide bid was not accepted there was no contract and the knocking down of the property to the agent of the vendor on a higher bid must at least be given the effect of a withdrawal of the property from sale. It certainly negatives any intention to accept the lower bona fide bid.</p>

<p> (1) Corporations. Director’s Liability. </p> <p>Under Gen. Laws, 1909, cap. 214, § 12, relating to manufacturing corporations, providing that the whole amount of the debts which any such corporation shall at any time owe shall not exceed the amount of its capital stock actually p^id in, and that in case of any excess the directors under whose administration it shall happen shall be jointly and severally liable, to the extent of such excess for all the debts of the company then existing and for all that shall be contracted as long as they shall respectively continue in office and until the debts shall be reduced to the amount of the capital stock of such company paid in, and under U. S. Bankruptcy Act, 1898 Section 7 (8) requiring a bankrupt to file a schedule of the property and a list of his creditors showing the amount due each of them, such schedule furnishes prima facie evidence of the amount of the debts, as of the date of the adjudication in the case of involuntary bankrupts, and such schedule was admissible in evidence in an action to enforce the statutory liability of a director; and if there were any debts in such schedule, arising otherwise than by contract or only contingently and not absolutely due, or that should be excluded from consideration, it was the duty of defendant to offer that fact by way of defence.</p> <p>(£) Corporations. Director’s Liability.</p> <p>Where in an action to enforce a director’s liability, under Gen. Laws, 1909, cap. 214, § 12, a plaintiff proves by the admission of the corporation by its bankruptcy schedules the whole amount of the debts owed by the corpora- ' tion at the date of adjudication, it is not necessary for him to negative the existence of any possible items of indebtedness which should not legally be considered, but this is a matter of defence within the means of knowledge of defendant.</p> <p> (3) Corporations. Director’s Liability. </p> <p>In an action to enforce a director’s liability under Gen. Laws, 1909, cap. 214, § 12, where the plaintiff has proved the bankruptcy of the corporation and the amount of debts owed, he is entitled to a prima facie presumption that this state of things’continued and if, in fact, the excess of debts had been paid so as to exonerate defendant, it was a matter for defendant to prove.</p> <p> (4) Corporations. Director’s Liability. </p> <p>In an action to enforce a director’s liability under Gen. Laws, 1909, cap. 214, § 12, where defendant was also president of the company and a stockholder for several years, down to the time of its failure, and actively interested in its affairs, it will be presumed in the absence of denial on the part of defendant that he was cognizant of the proceedings at the time of the failure; and it will not be presumed that he had no knowledge of the contents of the bankruptcy schedules.</p> <p> (6) Corporations. Director’s Liability. </p> <p>In an action to enforce a director’s liability under Gen. Laws, 1909, cap. 214, '§ 12, a note of the corporation secured by mortgage on real estate, was as much a debt owed by the company as any other debt, and it was immaterial that the company was solvent when the note was made and that it had then and later sufficient assets over and above the real estate mortgaged so that its capital stock fund was not impaired, and so that it could then have paid this note out of surplus assets, in view of the fact that it did not pay the note, and that after the adjudication of the company in bankruptcy its debts, including this note, had been increased in excess of its paid-in capital.</p> <p> (6) Corporations. Director’s Inability. </p> <p>Where after an adjudication in bankruptcy a mortgage on real estate which secured a note for $4,000 was foreclosed, and at the time of the sale there were no surplus assets of the corporation, but its entire property in liquidation paid only a- percentage on its indebtedness, the amount for which the real estate was sold cannot be considered as a reduction of “the amount of debts owed” by the corporation, in excess of its paid-in capital stock, but such amount stands on the same footing as payments made by the trustee in bankruptcy in liquidation of the bankrupt estate, and is not to be credited for the use of a director to reduce his liability under Gen. Laws, 1909, cap. 214, § 12.</p>

<p> (1) Accord and Satisfaction. Agreement as Satisfaction. </p> <p>While accord without satisfaction will not avail as a defence and satisfaction supposes that the thing stipulated to be done has not only been done, but has been accepted in satisfaction, yet, it is possible for the promise itself to be accepted in satisfaction.</p> <p>If an agreement and not the performance thereof is accepted in satisfaction of a demand and the agreement to accept is based on a sufficient consideration the demand is extinguished. Under these circumstances there is a valid accord and satisfaction even though the agreement is not performed, and the sole remedy of either party in case of non-performance -is by action for breach’ of the new agreement. Whether the promise has been accepted in satisfaction must be determined from the circumstances of each case. The burden is upon the party setting up the new promise to prove the agreement by a preponderance of the evidence.</p> <p> (2) Accord and Satisfaction. </p> <p>As a defence to an action upon an agreement defendant set up, that in consideration that defendant undertook and promised plaintiff that he would assign to him certain shares in a corporation, plaintiff accepted the undertaking in satisfaction of the obligations in the agreement in the ease at bar. Defendant’s evidence tended to prove that the certificate'of stock was executed but never taken by plaintiff and plaintiff did not execute a release of defendant’s obligations under the prior agreement nor a paper agreeing contingently to pay defendant ten dollars a share more.</p> <p>Held, that the evidence showed an accord and satisfaction.</p> <p>Held, further, that while the release and paper to be executed by plaintiff would have been of assistance to defendant in proving the alleged new agreement, the fact that plaintiff did not execute them did not affect defendant’s rights under the new agreement.</p> <p> (S) Evidence. </p> <p>In an action where defendant had pleaded in satisfaction an agreement on the part of plaintiff to accept certain shares of stock, where there had already been put in evidence a letter from plaintiff to defendant’s brother in which plaintiff returned a certificate of stock sent him by the brother of defendant, stating his reasons for so doing, a letter from the brother in reply was admissible as tending to show whether or not he accepted the stock without objection, and whether or not he assented to the statements in plaintiff’s letter.</p> <p>W) Contracts. Accord and Satisfaction. Equitable Pleas.</p> <p>■ Where to an action on an agreement defendant set up as ah equitable defence that the parties thereafter entered into an oral agreement whereby in consideration that the defendant promised the plaintiff that he would transfer to him certain stock the plaintiff agreed that he would never bring any action against defendant upon the agreement in the case at bar, and would receive the stock in full satisfaction and that defendant had always been ready to perform — and plaintiff requested the court to charge that it was no defence to the action that he agreed to cancel defendant’s obligation, unless defendant delivered and plaintiff accepted the stock, a modification of such request that if the jury found there was a bargain in consideration of the stock to cancel the agreement, in equity defendant would be entitled to have it carried out, was not error.</p>

<p>(1) Wills. Devise of Rents and Profits.</p> <p>A devise of the income or of the rents and profits or use and occupation of land is a devise of the land itself and there is no distinction between real estate and personal property.</p> <p>(£) Wills. Illegal Limitations. Restraint on Marriage.</p> <p>A testamentary provision that in case of the marriage of the legatee one-half of the income bequeathed to her should pass to other children of testator is void as an Elegal limitation and inoperative as a restraint upon marriage.</p> <p> (S) Wills. Cutting Down Devise. </p> <p>A clear gift is not to be cut down by anything which does not with reasonable certainty, indicate an intention to cut it down.</p> <p> (4) Wills. Trusts. Bequest of Income. Vested Remainders. </p> <p>By a holographic will testator devised his estate to his widow for life, (4) “my daughters E. and K. to Eve with her and to be provided for out of her income and at her decease I give to K. and W. executors of this wifl my estate at the comer of R. I. Avenue to my daughter E. for a home so long as she lives; also the income from all personal property that I may possess." E. was under disability. (5) “At the decease of E. her interest in my estate to her brother and sisters. If K. should marry, one-half of her income to W. and E. ” (6) “All the reference to my daughter C. in this will to be left to the judgment of my executors. I want mother to help (C) all she can fromher income.” (7) “The Washington Square Estate,-the income from that must pay insurance, taxes and expenses, the balance of the income, one-half to K. one-quarter to W. and E. one-quarter to C. as long as she is the wife or widow of S. and in case of her decease to her children. The same in the case of W. to his children. I think you can manage the estate R. I. Ave. to get quite an income from that. ” (10) “After the decease of my children E., K., W., & C. my real estate in trust and trustee to be paid to take care of the property for my grandchildren, share and share alike, and after them, their children.” (11) “You have my permission to sell the Washington Square Estate if you can add to your income by so doing, the funds to go' into a trust fund”:—</p> <p>Held, that it was the intention of testator that E. should have the benefit of the Rhode Island Avenue property and of the income from his personal estate, and the bequest of the income presupposed the setting apart and investment of the principal and the disbursement of the profit by some one in behalf of the cestui, and that the executors under the provisions of paragraph 4 took the Rhode Island Avenue property with the residue of the personal estate in trust for the life of E.</p> <p>Held, further, that the words “for a home so long as she lives, ” were used in a sense broader and beyond their literal meaning, intending that the estate should be used in such a manner as would best provide or contribute to a home for E.</p> <p>Held, further, that the words “at the decease of E. her interest in my estate to her brother and sisters” were used to describe that portion of his estate which he had set aside for the benefit of E. during her life, and as to that the brother and sisters stood in the position of vested remaindermen.</p> <p>Held, further, that a valid testamentary disposition to C. having been made, the expression “all the reference to C. to be left to the judgment of my executors” being devoid of any construction which would harmonize it with the rest, must be held to be nugatory.</p> <p> (5) Wills. Legal and Hquitáble Hstates. </p> <p>Held, further, that it was the intention of testator to charge the Washington Square Estate with the payment of the insurance, taxes and expenses of the Rhode Island Avenue Estate which was made a part of the life estate of E.; that a legal rather than an equitable estate was created in the Washington Square property and that an undivided half interest was given to K. and an undivided eighth to E. and that W. and C. took one-eighth and one-fourth interests for their respective lives which passed upon their decease to their children.</p> <p> (6) Wills. Devise Without Words of Limitation. </p> <p>Held, further, that in regard to the real estate embraced within the provisions of paragraph 5 and paragraph 7, the devises being without words of limitation, under Gen. Laws, cap. 254, § 14, would be construed to pass a fee simple unless a contrary intention appeared in the will, but such intention appeared in paragraph 10, which being irreconcilable with paragraphs 5 and 7 must prevail as the later expression of testator’s intention and hence the estates given under paragraphs's and 7 both present and in remainder must be construed to be life estates.</p> <p>(7) Wills. Trusts.</p> <p>Held, further, that from paragraph 10, it appeared testator intended to create a trust and the words used were sufficient for that purpose, since equity would not permit a trust to fail for want of a trustee.</p> <p> {8) Wills. Rule Against Perpetuities. </p> <p>Held, further, that the limitation to testator’s grandchildren was valid since the number of grandchildren must be ascertained at the death of testator’s children and all his children must be begotten before his death, but the attempted devise for the benefit of his great-grandchildren was void as in violation of the rule against perpetuities.</p> <p>Held, further, that the trust was valid so far as the grandchildren were concerned and the remainder of the estate would pass to the heirs at law of testator and such heirs would take a vested legal estate in remainder by operation of the statute of uses.</p> <p> (9) Wills. Trusts. Income. </p> <p>Held, further, that under paragraph 11, permissive authority to sell the Washington Square property whs given the executors, acting in good faith and upon such sale the proceeds would pass into a trust the income to be disposed of in the same manner and proportions and to the same parties who would have been entitled to the income had the estate remainded unsold, following so far as valid the provisions of paragraph 10.</p>

<p>(1) Statute of Descent. Ancestral Estate.</p> <p>In construing the statute of descent, Gen. Laws, 1909, cap. 316, § 6, relative to “ancestral estate” those entitled under the statute are the next of ldn of the intestate of the blood of the person from whom the estate came by immediate descent.</p> <p>(£) Statute of Descent. Ancestral Estate.</p> <p>Gen. Laws, 1909, cap. 316, § 6, provides “When the title to any real estate of inheritance, as to which the person having such title shall die intestate, came by descent, gift or devise, from the parent or other kindred of the intestate, and such intestate die without children, such estate shall go to the kin next to the intestate, of the blood of the person from whom such estate came or descended, if any there be. ”</p> <p>Held, that Section 6 did not make a distinct and independent provision for the descent of ancestral estates, but it was a proviso only to the canons contained in the preceding sections of the statute and degrees under Section 6 are to be reckoned according to the canons.</p> <p>Held, further, that the expression “of the blood of the person from whom such estate came or descended” included all within the canons of descent who had any of the blood of that person, and did not restrict the right to take to descendants of such person.</p>

<p>(1) Punitive Damages. New Trial. Reduction oj Damages.</p> <p>Under the established rule in this State when the verdict of a jury has been disapproved by the trial judge and a motion for new trial has been granted by him on the ground that the verdict fails to administer substantial justice, his decision will not be disturbed unless it appears that his conclusion was erroneous.</p> <p>While there is a distinction between cases where punitive damages and compensatory damages only are involved, with regard to the duty of the court in reducing damages, this distinction does not prohibit such action on the part of the trial court, where the punitive damages are so large as to shock the conscience of the court or where the court is satisfied that the jury have been improperly influenced or have acted from passion, prejudice or partiality.</p>

<p> (1) Criminal Law. New Trial. Newly Discovered Evidence. </p> <p>On a motion for new trial on the ground of newly discovered evidence in a criminal matter, where some of the affidavits show cumulative evidence not of a controlling character;.others, evidence merely tending to impeach the testimony of a witness and others, evidence inadmissible as hearsay, two of the affiants having been witnesses and others referred to in the record and there being no adequate explanation for their not being called as witnesses, no sufficient ground is shown for granting the motion.</p> <p> (8) Criminal Law. New Trial. </p> <p>In a criminal cause a claim that defendant “ did not have a fair and impartial trial” is inappropriate in a motion for a new trial.</p> <p> (8) Criminal Law. Bills of Exceptions. New Trial. Prejudicial Error. </p> <p>On a bill of exceptions in a criminal cause the court cannot consider whether the charge of the court was prejudicial to the defendant where the question is not presented by the bill.</p> <p>■Gen. Laws, 1909, cap. 297, § 2, furnishes a remedy for a person who has not had a full fair and impartial trial, although a petitioner under that section must show something more than mere error on the part of the court, which would furnish the subject of an exception.</p>