Volume 38 — Rhode Island Reports

<p>(1) Negligence. Implied Invitation '. Hidden Danger.</p> <p>In a personal injury action where there was evidence upon which the jury might have found that plaintiff at about the time of the accident was upon the premises of defendant, assisting in some work which his employer had contracted to perform for defendant, and that as a necessary incident of the work plaintiff went from time to time into the machine shop under such circumstances as would constitute an implied invitation from defendant, and that defendant had not used reasonable care to warn plaintiff of a hidden danger which was known to defendant, but of which plaintiff was ignorant, by reason of which plaintiff was injured, which facts would have justified them in finding defendant negligent, the action of the trial court in directing a verdict for defendant was error.</p> <p>Vincent, J., dissenting.</p>

<p>(1) Trespass and Ejectment.</p> <p>An action in ejectment will not lie against a defendant who makes no claim of title to and who has conveyed the locus prior to the commencement of the action.</p> <p>(#) Fraudulent Conveyances.</p> <p>, Under Gen. Laws, cap, 253, § 1, relative to fraudulent conveyances, creditors may treat the title as in the fraudulent grantor, and 'the lsjud is subject to judgment and execution in an action at law. In such matters the jurisdiction of the courts of law and equity is concurrent, and a purchaser at execution sale "may maintain ejectment to obtain possession of the land.</p> <p> ($) Fraudulent Conveyances. Land Paid for by Fraudulent Debtor. </p> <p>Lands fraudulently paid for by a debtor, the legal title to which has been taken in the name of another, cannot be reached by levy of execution upon a judgment at law in favor of a creditor. The fraudulent conveyance intended by Gen. Laws, cap. 253, § 1, is a fraudulent conveyance by the debtor. Such a purchase by the fraudulent debtor gives to the creditor a right inequity to follow and reach the equitable assets of the debtor.</p> <p>Tucker v. Denico, 26 R. I. 560, limited.</p>

<p> (1) Contradicting Return of Officer. Process. </p> <p>As to statements in the return of process which set forth the doings of the officer, the return cannot be contradicted by motion or plea, but statements as to other matters or conclusions of fact or law are not conclusive and maybe treated as surplusage and contradicted in a plea in abatement.</p> <p> (2) Procedure. Pleading. Abatement. </p> <p>In a district court defendant entered a special appearance and pleaded in abatement. At the time set for hearing plaintiff did not appear, and decision was entered for “defendant for costs by nonsuit of plaintiff, plaintiff not appearing. ” Plaintiff claimed a jury trial.</p> <p>Held, that defendant was entitled to be heard on the plea in abatement in the Superior Court.</p> <p> (3) Return of Process. </p> <p>The return of an officer, that “the defendant having no last and usual place of abode in my precinct, and no place of address known or to be ascertained by me, I have made no further service of this writ,” fails to show that he could not find defendant or that he made sufficient effort to do so and failed, and the case was properly dismissed for want of service.</p> <p> (4) Jurisdiction. Judgment for Costs. </p> <p>Where a court finds that it is without jurisdiction of the action, it is without jurisdiction to render judgment for costs.</p>

<p>'(1) Exemption from Attachment. Original and Mesne Process.</p> <p>Under Gen. Laws, 1909, cap. 302, § 5, of exemption from attachment, a debtor is entitled to an exemption of ten dollars on each writ served in. an action, whether original or of mesne process.</p>

<p>(1) Certiorari. Arrest. Reviewing Error of Law of District Court.</p> <p>Errors of law arising in applications to discharge from arrest, before a district-court, may be reviewed upon certiorari.</p> <p> (2) Arrest. Foreign Corporations. Actual Resident. </p> <p>A foreign corporation, having its property in this State and doing business and exercising almost all of its corporate functions exclusively here, is an actual resident of this State under Gen. Laws, 1909, cap. 299, § 11, providing that-to warrant the arrest of a non-resident defendant, the plaintiff must be an actual resident of the State.</p> <p> (3) Arrest. Defendant About to Leave State. </p> <p>Gen. Laws, 1909, cap. 299, § 11, relative to arrest of a non-resident defendant on the ground that he is about to leave the State does not require the affiant to state that defendant is at the time of the making of the affidavit, within the State and if a defendant at the time of the making of such affidavit was in another state approaching this State and having the intention to enter it and within a short time thereafter leave it, the affidavit is sufficient to satisfy the statute.</p>

<p> (1) Trial. Reopening Casein a Personal Injury Action. </p> <p>The trial court could in the exercise of a reasonable discretion permit a case to be reopened after both parties had rested and defendant had completed his argument and plaintiff had made a portion of his argument, for the purpose of permitting plaintiff to offer the testimony of a witness, who had been under summons by defendant, but was not called, and where plaintiff had no knowledge of the existence of such evidence until that time.</p> <p> {$) New Trial. Verdict Contrary to Law. </p> <p>On a motion for new trial before the trial court, on the ground that the verdict is contrary to law, the only question open for its consideration is whether the jury accepted and followed the law as stated by the court at the trial.</p>

<p>(1) Actions. Trespass Quare Clausum.</p> <p>An action of trespass quare clausum fregit, is properly brought under Gen. Laws, cap. 283, § 1, providing that "all actions of trespass for breaking and entering the close shall if brought in the Superior Court be brought in the court for the county and if brought in the district court in the district where the land lies,’ ’ in the district court of the district where the locus in quo lies, and a motion to dismiss the action because the district court had no jurisdiction on account of the plea of title set up by defendant, was properly denied.</p> <p> (2) Trespass Quare Clausum. Evidence. </p> <p>In an action of trespass quare clausum, charging the tearing down of a wall, which was built the day preceding the day it was torn down, evidence showing what the wall cost to build was properly admitted.</p> <p> (8) Trespass Quare Clausum. Evidence. </p> <p>In an action of trespass quare clausum, charging the tearing down of a wall, on the plea of the general issue where the act was admitted, the only issue was the possession of plaintiff. Evidence of title in one other than the plaintiff could not be shown under the general issue, but only under a plea of soil and freehold in such third party. Therefore as possession at the time of the alleged trespass was all that plaintiff had to prove, the action of the court in hmiting defendant’s proof of possession in a third party to a period of ten years prior to the trespass, gave defendant all the latitude to which he was entitled.</p> <p> (4) Trespass Quare'Clausum. Evidence. Plats. </p> <p>In an action of trespass guare clausum, where the only issue under the pleadings was the possession of plaintiff, a plat which could only serve to deny plaintiff’s title but not his possession, was inadmissible. For the same reason the record of the town council relating to the establishment of a highway by the town was inadmissible. For the same reason also a statement of a predecessor in title to plaintiff about a boundary stone was properly excluded.</p>

<p> C1) Landlord and Tenant. Ejectment. Waiver. Use and Occupation. </p> <p>July 27, plaintiff commenced an action of trespass and ejectment, rent due July 1, not having been paid in accordance with the terms of the lease. September 1, plaintiff commenced an action for use and occupation of the premises, from July 1 to August 1.</p> <p>Held, that in bringing the action for use and occupation, plaintiff treated defendant as his tenant at least as to the occupation subsequent to July 27, and thereby waived the forfeiture.</p> <p> (2) Use and Occupation. Landlord and Tenant. </p> <p>In order that an action for use and occupation may be maintained .the con* ventional.relation of landlord and tenant must exist between the parties.'</p> <p>(S) Use and Occupation.- Ejectment.</p> <p>The action for use and occupation is founded on a contract; the action of ejectment upon a wrong; and when applied to the same period of time are wholly inconsistent with each other; since in the former the plaintiff treats the defendant as his tenant and in the latter as a trespasser.</p>

<p>(.1) Negligence. Automobiles.</p> <p>Where plaintiff was crossing the street when struck by defendant’s automobile, and the view along the street between the machine and plaintiff was unobstructed, and there was no apparent reason why defendant could not have seen plaintiff in time to have stopped or turned his machine had he been giving attention to the course, a verdict for defendant will be set aside, for assuming negligence on the part of plaintiff, defendant had he been looking would have discovered plaintiff and been able to avoid him.</p> <p> (8) Negligence. Evidence. Res Gestee. </p> <p>In a personal injury action arising out of a collision between an automobile and plaintiff, who was crossing the highway, the exclamation of a passenger upon an electric car, as to the speed of the automobile in passing the car, is not admissible as part of the res gestee, where the exclamation was prior to the collision and so far as appeared could not have been provoked by observing the dangerous situation of plaintiff.</p> <p>(8) Evidence. Depositions.</p> <p>Under Gen. Laws, cap. 292, § 26, it is necessary to obtain an order from the court in which the case is pending authorizing the taking of depositions without the state to be used in cases pending in the courts of this State.</p>

<p> (1) Equity. Parent and Child. Gifts. Fraud. </p> <p>On a bill in equity to recover a deposit, it appeared that the father of com1 plainant deposited in her name when a child, a sum of money, the bank book being issued in the. name of the complainant; for several years the father continued to make deposits, increasing the account. At the time of the original deposit the father took the book for safe keeping and it was kept for a time in a place where complainant had access to it and later in his-safe.. After the marriage of the complainant the father requested her to go-to the bank to have the deposit changed to her married name. Complainant-signed her name as she claimed relying upon her father’s statement, and without reading what she signed. Upon leaving the bank she learned that-the deposit had been changed to his name he stating to her that he would! continue to add to the deposit and would see that it was given back to her. The father deceased.</p> <p>Held, that the facts were sufficient to show the intention of the father to create a gift.</p> <p>Held, further, that the trial court was not justified in finding the issue of fraud in inducing complainant to sign the instrument withdrawing the deposit, against complainant, since upon the evidence complainant might be justified in placing confidence in the statement of the father.</p> <p>Held, further, that the decree of the court dismissing the bill would be reversed.</p>

<p> (1) Hawhers and Peddlers. State and Town Licenses. </p> <p>Pub. Laws, cap. 1034, passed April 3, 1902, creating the board of police commissioners for the town of Tiverton, gave to that board authority to license hawkers and peddlers “in addition to the State license required by law. ”</p> <p>Pub. Laws, cap. 1065, passed December 12,1902, in amendment of the general laws, authorized boards of police commissioners to license hawkers and peddlers and provided that no fee should be charged to those who had already been licensed under the general laws.</p> <p>Held, that under the rule that a general statute does not repeal a special statute unless the purpose to do so is clearly manifest, cap. 1034 was still in force and under its provisions the police commissioners of the town of Tiverton could lawfully adopt rules requiring a person to obtain a town license in addition to the license obtained from the State.</p>

<p>Habeas Coepus. Certified from Superior Court.</p>

<p>(1) Master and Servant. Assault.</p> <p>The proprietor of an amusement resort frequented by large numbers of persons is justified in restraining acts which while not criminal, are offences against good order, but such acts would not thereby become misdemeanors for which police constables employed by' such proprietor to assist in maintaining order on the premises, could arrest offenders and while such constables were so employed they were the servants of the proprietor and he Was responsible for their acts in the course of their employment.</p> <p> (2) Master and Servant. Assault. </p> <p>Where a visitor at an amusement resort, while committing no offence for which he could be prosecuted, was guilty of disturbing the good order of the place, in an action brought by him charging assault by a police constable employed by the proprietor to assist in maintaining order, the jury might find that what was done by the constable was done within the scope of his employment as the servant of the proprietor.</p> <p>\ •</p> <p> (3) Public Officer as Agent. Master and Servant. </p> <p>An agent of the proprietor of an amusement resort who is also a public officer, acts in a dual capacity, at times as the servant of his employer and at times as an officer of the law. In what capacity he is acting at any time must depend upon the acts done by him.</p> <p> (4) Assault. Evidence. </p> <p>In an action against the proprietor of an amusement resort, for the act of his servant, alleged to have assaulted plaintiff, who was acting in a disorderly manner, the fact that plaintiff asked to be released and signed a statement that he was disorderly and abusive has no relevancy except as evidence of what his conduct had been and the further statement that if he was “let off” “I will not attempt to prosecute,” in the circumstances in which the jury might have found it was given, was without consideration and did not bar plaintiff’s action.</p>

<p> (1) Abatement and Revival. Action Against Town. </p> <p>An action brought against a town treasurer, who retired from office while the action was pending, was dismissed for failure of plaintiff to summon in the new town treasurer, under Gen. Laws, cap. 283, § 13.</p> <p>At the time the suit was dismissed the new treasurer had been in office for more than a year and more than one year had elapsed since the cause of action accrued.</p> <p>Held, that the failure of plaintiff to summon in the new town treasurer for the space of one year worked an abatement of the original suit by operation of law at the expiration of the year, but under Pub. Laws, cap. 684, plaintiff had one year from the abatement of the first action within which another action could be brought.</p>

<p> •(1) Divorce. Alimony. </p> <p>A petition for divorce contained no prayer for alimony. More than six months after final decree, petition for alimony was filed under Gen. Laws, 1909, cap. 247, §5.</p> <p>Held, that the fact the petition did not show that the husband was possessed of real estate was immaterial since the earnings or other personal estate of respondent were subject to the payment of alimony.</p> <p>>(|!) Divorce. Alimony.</p> <p>•Gen. Laws, 1909, cap. 247, § 5, does not limit the time within which a petition for alimony must be filed to six months from the entry of the absolute decree for divorce, but such proceeding may be instituted at any time subject to the defence of laches or waiver.</p>

<p>(1) Probate Appeal. Person “Aggrieved.”</p> <p>Where under a will testator devised and bequeathed all of his estate other than certain direct pecuniary legacies to a trustee who was also executor, an appeal from a decree of a probate court fixing an allowance for support of the family of testator, based upon the interest of appellant, both as trustee and executor, will he, under Gen. Laws, 1909, cap. 311, § 1, giving an appeal to any person “aggrieved” by a decree of a probate court.</p> <p> (2) Probate Appeal. Support of Family. </p> <p>In a probate appeal upon the question of the allowance under Gen. Laws, 1909, cap. 313, §§ 7, 8, for the support of the family for the term of six months next after the decease of testator, evidence considered and held— that the allowance by the probate court and. by the jury on appeal was-unwarranted.</p> <p>Held, further, that it appeared the widow had received under the will during-, the period of six months after decease of her husband a sum adequate for her " reasonable support.</p> <p> (8) Probate Appeal. Support of Family. </p> <p>Gen. Laws, 1909, cap. 313, §§ 7 and 8, providing for the support of the family" of a decedent for the term of six months next after his decease, does not contemplate taking the estate from creditors or modifying the will or" changing the course of property, but by the words “until the same can otherwise be provided for” show a plain indication by the legislature to-limit the granting of allowances to cases where there is no adequate pro-vision for the support, so that a provision for support is necessary during the ■ six months period.</p> <p> (4) Probate Appeal. Support of Family. </p> <p>In an appeal from a decree of a probate court making an allowance for the-support of the family of a decedent for the term of six months next after his decease, it was error to instruct the jury that they were for the time being" the probate court in control of the estate on this particular matter, and that “the statute says an allowance shall be made and it is obvious that there is a tremendously wide discretion allowed to the court” since the functions of" the jury were confined to the consideration of the facts under instructions of" the court, as to the meaning of the statute, and in such instructions the-restrictive portions of the statute were ignored.</p> <p>Johnson, G. J., and Sweetland, J., dissenting.</p>

<p> ■(I) Wills. Trusts. Construction. </p> <p>By the terms of a will trustee was directed to pay one-half of the net income to B., the son of testator, for life, and the other half in equal shares to C. and D., the daughters of B., for life. The will provided that in case of the death of either C. or D. the trustee was to pay over that portion of the income in equal shares to the child or children of C; or D., and in case of the death of</p> <p>C. or D. without leaving a child, then to pay over the share so given to the survivor. The will further provided that in case of the death of B. the trustee should pay over that portion of the income in equal shares to C. and</p> <p>D. “in the same manner as hereinbefore provided.”</p> <p>No further provision was made for the payment of the income and no direction was given as to the disposition of the principal.</p> <p>B. died, leaving C. and D. as his heirs at law. C. died, leaving two daughters,</p> <p>E. and F. F. died, leaving a daughter, G.</p> <p>Held, that it was the purpose of testator to provide for his grandchildren and their children to the exclusion of all others.</p> <p>Held, further, that there was no intent to provide an income for the great-great-grandchildren.</p> <p>Held, further, that the undivided one-fourth part from which the income was paid to F. should be held in trust and the income paid to E.</p> <p> (2) Wills. Construction. “Children.” </p> <p>'The word “children” as ordinarily used in a will means immediate descendants, that is of the first generation. It does not include grandchildren unless it is necessary to give it that meaning to give effect to the will or unless testator has clearly shown by other language that he intends it to have a more extended signification.</p>

<p> (1) Banks and Banking. Abandoned Properly of Absentee. Constitutional Law. </p> <p>Gen. Laws, 1909, cap. 237, § 17, and Pub. Laws, 1909, cap. 404, provide that the treasurer of every savings bank and bank or trust company as to its savings department shall at stated periods return a statement with details of every depositor who shall not have made or withdrawn any deposit or interest thereon or whose bankbook has not been presented for entry of interest, for a period of twenty years, and that at the expiration of six months from the first publication of such statement, the attorney general shall file a petition following the course of equity praying that such deposits with the increase thereof be paid to the general treasurer subject to repayment to one establishing his right thereto.</p> <p>The charter of a savings bank provided that all deposits should be used to the best advantage and the income should be applied and divided among the persons making the deposits their heirs, etc., in just proportion and that all accounts on which no deposits or drafts had been made for twenty years should be so far closed that neither the sum deposited nor the interest accrued should be entitled to any interest after the expiration of twenty years from the time of the last deposit or draft, and that deposits might be withdrawn in such manner as the bank should direct.</p> <p>Held, that said acts were not obnoxious to Cons. R. I., Art. I, § 12, “No ex post facto law or law impairing the obligation of contracts, shall be passed, ” nor to Art. I, § 16, “Private property shall not be taken for public uses, without just compensation;” nor to Cons. TJ. S., Art. I, § 10, “No state shall . . . pass any ex post facto law, or law impairing the obligation of contracts.”</p> <p>Held, further, that the power of the State to pass such act rests on its right to provide for the care of property the owners of which have not been heard ‘ from for so long as to raise the presumption that they have either died or have abandoned the property.</p> <p>Held, further, that the charter of the bank and the contract between the bank and its depositors must bo assumed to have been subject to the sovereign power of the State to taire in to its care property abandoned by its owner, when an absentee from the State leaving no one to represent him for many years and when he cannot be found.</p> <p> (2) Statutes. Procedure. </p> <p>Held, further, that the statute implied a legal and proper course of procedure, for where provision was made for the filing of the petition following the course of equity, there is a necessary implication that the court will hear the petition before making any^order.</p> <p>(S) Banks and Banking. Statutes. Abandoned Property of Absentee.</p> <p>Held, further, that as under the charter no interest would have accrued after twenty years from the last act of the depositor with relation to the deposit, no interest after that time would, under the act, be paid to the general treasurer.</p> <p> (4) Banks and Banking. Abandoned Property of Absentee. Rights of Depositors. </p> <p>Held, further, that the other depositors had no greater property rights in the deposits which had ceased to draw interest than the bank had.</p> <p>(5) Constitutional Questions.</p> <p>A constitutional question cannot be brought before the court on stipulation of parties, and where it has not been certified under Gen. Laws, 1909, cap. 298, it will not be considered.</p>

<p>(1) Bills and Notes. Accommodation Maher. Holder for Value.</p> <p>Plaintiff supplied groceries which he charged to the wife, although she disputed his right to do so. Subsequently the husband and wife executed a joint note in payment and plaintiff receipted the bill.</p> <p>Held, that plaintiff being 'in possession of the note was the “holder” under Gen. Laws, cap. 200, § 1, providing that “holder” means the payee or indorsee of a bill or note who is in possession of it or the bearer thereof ” and the note being given for a debt due plaintiff and his receipt of the account amounting to the cancellation of a preexisting debt, he was also a holder for value under Section 31 of said chapter, providing that value “is any consideration sufficient to support a simple contract. An antecedent or preexisting debt constitutes value,” and therefore plaintiff being a holder for value it was immaterial whethbr the wife was considered as an accommodation maker, for under Section 35 of said chapter “an accommodation party ... is liable on the instrument to a holder for value, notwithstanding such holder at the time of taking the instrument knew him to be only an accommodation party.”</p>

<p> (1) Master and Servant. Negligence. Warning Servant. Hidden Danger. </p> <p>'Where a servant, who without previous knowledge of machinery and without any knowledge, or instruction as to the construction of a particular machine, or as to its manner of operation, has once been shown by an expert how to do a highly dangerous thing in regard to that machine and then is directed to-do the thing and while doing it, as he has been shown is injured by reason of perils which he could not observe, but which were inherent in the thing he was directed to do, the question of the negligence of the master in failing to instruct'and warn the servant and the question of the assumption of risk by the servant are for the jury.</p> <p>Vincent, J., dissents.</p>

<p> (1) Fire Insurance. Waiver. Proof of Loss. </p> <p>In an action upon a standard form of policy of fire insurance which provided that the ascertainment of loss should be made by the insured and the company, or if they differed then by appraisers, as provided, and the amount of loss having been determined the sum for which the company was liable-should be payable sixty days after due notice, ascertainment, estimate and satisfactory proof of loss had been received by the company, it appeared that insured had filed proofs of loss, in accordance with the requirements of the policy. More than sixty days thereafter action was commenced and during that time no reply was received by insured:—</p> <p>Held, that the insurer waived all other steps on the part of insured in the process of adjusting the loss and after the expiration of sixty days from the filing of the proof he was entitled to maintain the suit.</p> <p> (8) Fire Insurance. Pleading. </p> <p>In an action on a policy of fire insurance where the declaration alleged that the plaintiff “has done, performed and fulfilled all things on his part to be done, performed and fulfilled in order to entitle him to recover said loss under said policy,” and it appeared that plaintiff had filed proof of loss, it was incumbent upon the defendant if it did not intend to regard this amount as the loss to have taken the next step in the process of adjustment, and the statement that plaintiff had done all the things required by him to be done will not involve any allegations other than that he has furnished proofs of loss.</p> <p> (5)Fire Insurance. Pleading. </p> <p>In an action on a policy of fire insurance it is sufficient if enough is set forth to show a right to recover.</p> <p> (4) Fire Insurance. Pleading. Surplusage. </p> <p>In a declaration on a policy of fire insurance an allegation of denial of liability on the part of defendant is surplusage and may be rejected.</p> <p>(5) Fire Insurance. ' Location of Property Insured. Misdescription.</p> <p>Where the description of the location of property in a policy of fire insur-anee, which description was filled out by the agent of the company, after he had visited the premises, contained facts by which the building could ' be identified, the question was properly submitted to the jury, as to whether or not the property injured was the property insured.</p> <p> (6) Fire Insurance. Misdescription. </p> <p>If property is otherwise sufficiently identified, a misdescription as to location will not avoid the policy.</p> <p>(7) Fire Insurance. Misdescription. Reformation.</p> <p>Where property is sufficiently identified no reformation in equity is necessary.</p>

<p>(1) Workmen’s Compensation Act. Findings of Fact. Final Decree. Appeal.</p> <p>Art. Ill, § 6 of Pub. Laws, cap. 831 (Workmen’s Compensation Act), provides that the justice of the Superior Court shall decide the merits of the controversy and on his decision a final decree shall be entered and that such decree shall contain findings of fact which in the absence of fraud shall be conclusive. Under Section 7 only questions of law and equity decided adversely to the appellant may be brought up for review upon appeal from final decree:—</p> <p>Held, that the findings of fact which should be contained in the final decree are the conclusions of the justice as to the issuable or ultimate facts of the controversy. Said decree should not include a statement of the evidence or the findings of probative facts from which conclusions are to be drawn as to issuable facts. The determination of the issues whether an injury to a workman resulting in his death arose out of and in the course of his employment are material issues. The determination of each of these issues is -a finding of fact, although it may be merely a conclusion deduced from other facts; and these and not the evidentiary facts upon which they are based, are among the findings of fact which are to be placed in the decree.</p> <p> (2) Workmen’s Compensation Act. Findings of Fact. Appeal. </p> <p>Under the Workmen’s Compensation Act it is contemplated that the decision of the justice and the final decree shall be based upon evidence and not arbitrarily made. If the record discloses that a finding of fact is entirely without legal evidénce tending to support it, such finding amounts to an error of law and will be reviewed upon appeal and set aside.</p> <p> (8) Workmen’s Compensation Act. Findings of Fact. Sufficiency of Evidence. Appeal. Constitutional Law. </p> <p>When the Workmen’s Compensation Act provides for appeals upon questions of law, it does not refer to the question of the sufficiency of the evidence to support the. findings of fact, nor is the court required under the constitution to undertake such a' review of said findings.</p> <p> (4) Constitutional Law. Appellate Jurisdiction of Supreme Court. </p> <p>In proceedings under the Workmen’s Compensation Act, the legislature in depriving the Supreme Court of the right of review on the facts has not interfered with its constitutional appellate jurisdiction upon all questions of law and equity, but has merely created an exception to the appellate jurisdiction which the legislature itself has prescribed in most other cases, in reviewing the findings of fact.</p> <p>(£) Workmen’s Compensation Act. Findings of Fact by Superior Court Conclusive.</p> <p>By the use of the word “conclusive” in Section 6 of said act, the Superior Court has the exclusive final jurisdiction to determine all questions of fact.</p> <p> (6) Workmen’s Compensation Act. Questions of Law. </p> <p>Where under said act, the findings of fact involve and are based upon conclusions of law, they may be reviewed on appeal in so far as they involve such questions of law.</p> <p> (7) Workmen’s Compensation Act. Deductions. Questions of Fact. </p> <p>On the issues as to whether the accident arose out of and in the course of the employment of the workman, the facts presented before the justice and the deductions which he may reasonably draw from them constitute legal evidence on the disputed issues, and the deductions to be drawn from the facts are not legal presumptions but are themselves questions of fact properly to be determined by the trier of the facts.</p> <p>(8) Workmen’s Compensation Act. Final Decree. Written Decision.</p> <p>A final decree in a proceeding under the Workmen’s Compensation Act should not be reversed because of failure of the justice to file his written decision with the clerk, where at the conclusion of the testimony he orally indicated his conclusion upon the disputed issues and later the final decree was entered containing findings of fact upon each issue, and there is no claim that the decree is contrary to the findings, and it does not appear that the appellant was prejudiced thereby.</p> <p>Parkhuest and Vincent, JJ., dissenting.</p>

<p>(1) Building Contract. Evidence.</p> <p>Defendants, an engineer and a contractor, prepared plans and entered into a contract for the construction of a dam. Owing to the refusal of certain officials to approve the work, plaintiff was invited to confer with them. Plaintiff after pronouncing the plans under which defendants were working unsuited to conditions was requested to prepare a plan. Plaintiff had many consultations with defendants in reference to the work. More than a year after the rendition of these services he sent his bill to one defendant who transmitted it to the other. Prior to receiving the bill the latter wrote plaintiff “I think you better hold back bill for a time at least. I am going into a fight and just what can be effected later on is now hard to tell. I am in hopes however to make your work available at a later period.”</p> <p>Held, that the accompanying evidence showed that the introduction of the letter was for the purpose' of accounting for the delay in the sending of the bill.</p> <p>Held, further, that the question “will you explain to whom that refers, sending the bill?” asked defendant, in his behalf as well as the question “To whom did you refer in saying you were going into a fight?” were properly excluded, the latter as immaterial and the former because in connection with the undisputed testimony of plaintiff as to conversations with defendant in which latter asked him to hold back his bill until defendant could reach a settlement of his own claim it left no ambiguity which could be explained by oral evidence. It was also immaterial in view of defendant’s later letter written after receipt of the bill, in which he discussed the bill without disclaiming personal liability for its payment.</p> <p> (8) Evidence. </p> <p>Evidence is properly excluded where there is nothing by which the proppriety of the testimony can be determined.</p> <p> (8) Evidence. Custom. </p> <p>In an action to recover for services in preparing plans and in devising a method to assist defendants, when construction work entered into by defendants had stopped, evidence as to custom of architects regarding compensation for plans which are not used, was properly excluded, since plaintiff was not engaged in competition with others in furnishing plans for the work.</p> <p>Johnson, C. J., and Sweetland, J., dissenting.</p>

<p>(Í) Life Insurance. Beneficiary. “Executors, Administrators and Assigns.”</p> <p>A policy of insurance was issued for the term of fifteen years, payable in case of death during said term, share and share alike to his wife and his son, or if insured survived such term, then an amount equal to four-tenths -of the amount of the policy was to be paid to insured. During the term, the beneficiaries assigned to the insured the policy and “all dividend benefit and advantage to be had or derived therefrom, ” and thereafter a trust agreement was entered into between insured and the company by which in case of his death during the life of either his wife or his son, the proceeds were to be paid to the company as trustee to be held for the benefit of the wife and son and the survivor of them, to be paid to them share and share alike in annual installments, the first payment on proof of death of insured; the balance to carry interest of not less than 3%; in case of death of-either beneficiary before or after death of insured, from the proceeds or the remainder thereof, like annual installments to be paid the survivor; if any balance remained after the death of both beneficiaries the same was “to be paid in one sum to the executors, administrators or assigns of insured,” and in case of death of both beneficiaries before the policy became a claim, or in case insured revoked his appointment of trustee, said appointment of trustee became void and the proceeds were to be paid “in one sum to the executors, administrators or assigns of said insured. ”</p> <p>Insured died within the term without having revoked the appointment of trustee and the company took the proceeds under the terms of the trust. Both beneficiaries deceased, the company having prior to that time made nine annual payments, and the company paid to the administrator of insured the balance of the proceeds.</p> <p>Held, that after looking into the subject-matter and surrounding circumstances, as well as the language used in the contract to learn the intention of insured, there was nothing to make it necessary to deprive the words “ executors, administrators or assigns” of their ordinary technical significance, and therefore the administrator took the proceeds as assets of the estate.</p> <p> (%) Life Insurance. Beneficiary. </p> <p>In making proceeds of an insurance policy payable to his personal representatives or his assigns, an insured reserves to himself the right to dispose of the same by will, subject to the possibility of their being needed to pay his debts.</p>

<p> (1) Fire Insurance. </p> <p>"Where differences as to a loss by fire had occurred between insured and the ■ company, and an agreement for appraisal had been entered into under the terms of the policy and an award had been made; such award being valid as long as it stood undisturbed, its existence, instead of constituting an obstacle to the bringing of an action, enabled the action to be brought.</p> <p>(#) Bill in Equity in Aid of Action at Law. Limitation of Time.</p> <p>'Where an action on a policy of fire insurance had been commenced within the time limited by the terms of the-policy, a bill in equity brought to set aside the award of appraisers, which was brought after the time limited is not to be regarded as an action on the policy for the recovery of a claim, but is in aid of the action at law, and will properly lie as an auxiliary proceeding growing out of the same subject-matter.</p>

<p>(1) Carriers. Personal Injuries. Negligence.</p> <p>About 7 AO P. M., on August 16th, as plaintiff approached a railroad station the train which he intended to take was at the station, headed west and on the farther of two parallel tracks. The gates were down, with lanterns attached. There was a fence between the tracks painted a dark color. This had been erected about a month. There were electric lights about 96 feet from the end of the fence, and also lights from the porch of the station on one side of the tracks and from the porch of a baggage room on the other side. Prior to building the fence it was customary under an operating rule of the carrier for a northbound train to wait if there was a southbound train at the station, but after the installation of the fence trains passed in the station. Plaintiff had not been at the station for about three months. Plaintiff claimed that when he stepped from the street he saw a train approaching, but slowing down and after walking a few feet he looked again and saw the train still coming, but slowing down. He was then about 15 or 20 feet from the track. He then passed over the platform and into the track at a rapid pace and was within arm’s lenth of the fence when he heard the whistle, saw the train very near, turned back and was struck. Plaintiff claimed that he had no notice of the fence and the change in boarding a train from the station side only and that in crossing the first track he relied upon the former rule.</p> <p>Held, that plaintiff was guilty of contributory negligence as a matter of law; that upon the above facts it appeared the fence was not the proximate cause of the accident, and in view of plaintiff’s reckless conduct it was immaterial that defendant had changed without notice to him the rule regarding the passing of trains.</p> <p> (2) Negligence. Direction of Verdict. </p> <p>Where the negligence of a plaintiff is clear on undisputed facts, amounting to a lack of ordinary prudence, there is nothing to go to the jury and a verdict should be directed.</p> <p>Johnson, C. J., and Sweetland, J., dissenting.</p>

<p>(1) Condemnation Proceedings. Talcing of Property. Interest. Compensation,</p> <p>“An Act to incorporate the Southern New England Railway Company,”' approved April 12, 1910, provides that “ whenever said corporation may take any lands or any interests or estates therein, it shall file in the Superior Court a certificate containing a general description of said lands” and said certificate “shall contain a notice that said corporation will give such security as the court may require for the payment of all such costs and damages as may be finally awarded to any person interested in the lands taken in the proceedings commenced by the filing of such certificate.”</p> <p>The act further provides that whenever said corporation shall have given the security fixed by the court it may immediately enter upon, take possession of and use such lands.</p> <p>Held, that when the amount of damages was determined, they must be regarded • as due as of the day when the property was taken.</p> <p>Held, further, that only at the time when the owner was entitled to compensation, did he begin to be entitled to interest for non-payment of such compensation.</p> <p>Held, further, that the filing of the certificate was merely the designation of the land to be taken, but the land was not taken until the right accrued to the company to enter upon and have possession of it.</p>

<p> (1) Evidence. Relevancy. Admissions Against Interest. </p> <p>In an action by a corporation for the price of goods sold, evidence as to a conversation between the vice-president of the corporation and a third party, offered by defendant as an admission against interest, without any evidence of his authority to act for the corporation, about a past transaction, with which he had nothing to do, was properly excluded.</p> <p> (2) Sales. Payment. Burden of Proof. </p> <p>In an action for the price of goods sold, the burden is upon defendant to prove payment claimed by him to have been made, by a fair preponderance of the evidence.</p> <p>(S) Release. Receipted Bill.</p> <p>A receipted bill is not a release, but is only prima facie evidence of the facts stated and may be explained or contradicted by parol. It is not therefore within the provisions of Gen. Laws, 1909, cap. 253, §¡12, givingthe same effect to an “instrument purporting to be a release” whether with or without a seal.</p> <p> (4) Sales. Receipts. </p> <p>In an action for the price of goods sold, requests to charge that “an itemized bill marked paid or received is a receipt for the items contained in the bill” and “where a receipt is -written, signed and delivered by a creditor or his agent, to the possession of a debtor, it is prima facie evidence of payment, ” were proper and should have been granted and their refusal constituted reversible error, for where a defendant on whom rests the burden of proving payment puts in evidence a receipted billas prima facie evidence of payment, the adverse party is called upon to explain or disprove it.</p> <p>(5) Sales. Receipts.</p> <p>In an action for the price of goods sold, request to charge that “a receipt is evidence of the highest and most satisfactory character, and to do away with its force, the testimony should be convincing” was properly refused, since a receipt is not conclusive, but may be disputed and contradicted by parol.</p> <p> (6) Sales. Receipts. </p> <p>In an action for the price of goods sold, request to charge that “when the evidence on one side is entitled to as much weight as on the other, the receipt will stand” was properly refused, as made, since it did not exclude the receipt in comparing the weight of evidence on one side with that of the other.</p>

<p>(1) Carriers. Baggage.</p> <p>At the time of purchasing his ticket, plaintiff placed with the baggage agent of carrier a suit case, nothing being said about its contents, receiving a check containing the condition that carrier should not be liable for merchandise, money or jewelry, nor in any event for any cause, including negligence for an amount exceeding $100, which amount the receiver represented was not less than the value, unless a greater amount was agreed upon in writing.</p> <p>The case contained merchandise of large value, as well as some of the personal effects of plaintiff.</p> <p>The case was lost:—</p> <p>Held, that the condition stated in the check was a limitation made by the carrier and excluded no liability other than those specified, and plaintiff was entitled to recover for the loss of his proper baggage.</p>

<p> (1) Wharfage. </p> <p>Plaintiff and defendant were the owners of adjoining wharves, both estates being on the harbor line. Owing to the limited width of defendant’s wharf it was his invariable practice in unloading coal barges to overlap plaintiff’s wharf, this being unavoidable.</p> <p>Held, that plaintiff was entitled to wharfage.</p> <p>(£) Wharfage. Evidence. Bent.</p> <p>In an action to recover compensation for the overlapping of plaintiff’s wharf by defendant’s vessels, the declaration containing counts for rent and for use and occupation, testimony to the effect that the property was rented to defendant and that defendant had paid a certain monthly sum therefor, was admissible.</p> <p> (S) Wharfage. Evidence. Damages. </p> <p>In an action to recover compensation for the overlapping of plaintiff’s wharf by defendant’s vessels, the declaration containing counts for rent and use and occupation, evidence as to damage to plaintiff’s building adjoining the wharf was inadmissible, and where the court ruled that plaintiff could not recover such damage, the refusal to strike out the testimony regarding it did not constitute reversible error where it did not appear that such damage entered into the consideration of the jury.</p> <p>(4) Wharfage. Evidence.</p> <p>In an action to recover compensation for the overlapping of plaintiff’s wharf by defendant’s vessels, evidence as to how or in what manner plaintiff arrived at the amount he claimed per month, was admissible as aiding the jury in forming an opinion as to the reasonableness of the charge.</p> <p> (5) Wharfage. Evidence. </p> <p>In an action to recover compensation for the overlapping of plaintiff’s wharf by defendant’s vessels, testimony on the part of a real estate broker and appraiser as to the value of the overlapping privilege was admissible, where witness produced evidence upon the question of his competency, although he admitted that he had not made an examination of the leases pertaining to the properties in question.</p>

<p>(,1) Workmen’s Compensation Act. Questions of Fact.</p> <p>In a proceeding under the Workmen’s Compensation Act:</p> <p>Held, following Jillson v. Ross, 38 !R. I. 145, that the matter placed in issue,, was a question of fact for the justice who heard the case and the consideration, of the weight of the evidence and its sufficiency in point of fact, were also-questions of fact, which the Superior Court had exclusive final jurisdiction to determine.</p> <p> (2) Master and Servant. Aggravation of Injury. Benefit of Doubt. </p> <p>Under the Workmen’s Compensation Act the rule which governs in an action at law applies that where plaintiff has proved the liability of defendant and the resulting injury to plaintiff, if defendant claims an aggravation of the injury by neglect of plaintiff, he must show such fact as matter of defence, and in regard to such question it is proper to resolve all doubts in favor of plaintiff.</p>

<p>(1) Evidence of Deceased Witness.</p> <p>The testimony of a witness since deceased, at a previous trial, where the daughter of plaintiff brought suit in her name by plaintiff as her next friend, to recover for injuries arising out of the same accident, may be received at a subsequent trial of an action brought by plaintiff in his own right to recover for injuries, for while the plaintiffs were not the same, the father owing to his obligation to support the minor was interested in the compensation she would recover and had the full management of her suit, and employed the same counsel in both actions, and owing to the issue of negligence being the same in both cases, was also interested to have the first action carefully tried, and the witness having been fully cross-examined, under all of these circumstances the record discloses a substantial identity of interest.</p> <p>(£) Evidence. Beading from Former Testimony.</p> <p>It was not error to refuse permission to read from the testimony of a witness at a former trial, where such witness at the subsequent trial admitted substantially all that was asked him in reference to discrepancies between his former testimony and that at the trial of the case at bar.</p>

<p>Peobate Appeal. Heard on exceptions of respondent . and sustained.</p>

<p>(I) Surety Bonds. Covenants. Warranties.</p> <p>Defendant issued a bond to plaintiff to cover defalcation of its officers, March 18, 1910, for one year, and it was continued in force from 1911 to 1912, and from 1912 to 1913. In the application for the bond plaintiff made certain , statements as to the duties to be performed by one of its officers; the amount of money that he would be required to handle; the manner in which all funds received by him should be disposed of and the manner and frequency with which his books would be examined and audited. This application contained the statement that his accounts had been examined up to January 26, 1910, and found to be correct, and upon this application the bond was issued.</p> <p>Upon each renewal plaintiff certified that the accounts had been examined and found correct.</p> <p>According to the terms of the bond it was given “in consideration of a premium computed at an agreed rate and in further consideration of the statements made by the employer and of the covenants on the part of the employer.” Among these covenants was the agreement that the statements as to the employees were material to the risk and had influenced the company to execute the bond and that the statements were warranted to be true and if untrue in any particular then the bond should be null and void.</p> <p>In the third year of the bond it was discovered that the officer in question had been a defaulter for some years and was a defaulter at the time the original bond was given and the defalcations had continued during the period covered by the bond.</p> <p>It was admitted that plaintiff had not verified the bank account and securities for six years, and it was a part of the agreement between the plaintiff and the company that the accounts of the officer should be compared with the bank balance.</p> <p>Held, that under the contract it was incumbent upon plaintiff to perform certain duties which it was agreed by the parties were material to the contract and plaintiff had not only failed to observe the obligations of the contract, but its failure was due to its gross negligence.</p> <p>Held, further, that a verdict for defendant was properly directed.</p> <p> (8) Surety Bonds. Conflict of Law. </p> <p>Where the application for a bond issued by a foreign corporation was made through a resident agent of the company and the bond after having been prepared at the home office was sent by mail to .the agent here who was empowered to deliver or withhold it in his discretion, the contract was made in this State.</p>

<p>(1) Damages. Minor.</p> <p>In an action by a parent to recover for the death of a minor child by the wrongful act of another, where the court had charged, following the rule laid down in Schnable v. Prov. Public Market, 24 R. I. 477, that the measure of damages was the pecuniary value of the child’s services from the time of the accident resulting in death to the time when it would have reached majority, less its proper support and maintenance, it was not error to refuse the additional instruction to find the present value of the different items of damage arising from the child’s death, which would involve the use of annuity tables, and mathematical calculations and which would only tend to further complicate a difficult problem hardly admitting of an exactly correct solution, but it would be enough to call the attention of the jury to the fact that they were making an award to be paid at the present time for a loss of services which might arise in the future, and that that fact should be taken into account in fixing the amount of such award. McCabe v. Narr. Elec. Lt. Co., 26 R. I. 427, and Reynolds v. Narr. Elec. Lt. Co., 26 R. I. 457, examined.</p> <p> (8) Damages. Death of Minor. </p> <p>In an action by a parent to recover for the death of a minor by wrongful act, the question of damages is peculiarly within the province of the jury, and where it does not appear that the jury were governed by improper motives, a verdict for $2,000 will not be disturbed simply on an estimate of damages in a lower amount by the trial court, unwarranted in the evidence.</p>

<p>(1) Equity. Preliminary Injunctions.</p> <p>The issuance of a preliminary injunction rests in the sound discretion of the-court and as a rule the exercise of this discretion will not be interfered with on appeal unless it is reasonably clear that it has been exercised in an illegal manner.</p> <p>The granting of such injunction does not amount to a final determination of the rights of the parties, but simply holds matters in statu quo until final hearing.</p>

<p>(1) Officers. Service of Process. Assault.</p> <p>One claiming to be the owner of personal property and in possession of the same is not justified in assaulting a known officer who attempts in good faith to attach the same upon lawful process running against a third person as the goods of such third person, although such assault is necessary to prevent the property from being taken by such officer.</p>

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

<p>(1) Workmen’s Compensation Act.</p> <p>Section 12 of Art. II, of the Workmen’s Compensation Act provides “ (c) for the loss by severance at or above the second joint of two or more fingers,including thumbs or toes, one-half the average weekly wages, earnings or salary of the injured person, but not more than ten dollars, nor less than four dollars a week, for a period of twenty-five weeks, (d) For the loss by severance of at least one phalange of a finger, thumb or toe, one-half the average weekly wages, earnings or salary of the injured person, but not more than ten dollars, nor less than four dollars a week, for a period of twelve weeks.”</p> <p>Petitioner’s left hand was injured in such manner that the index finger was amputated between the second and third joints and a small piece of bone from the side of the thumb and pieces of tendons and flesh were severed and the thumb was rendered permanently stiff. The Superior Court held that the injury to the thumb was not the specified injury described in paragraph (c) and made an award under the provisions for specified injuries, paragraph (d), of ten dollars a week for twelve weeks.</p> <p>Held, no error.</p> <p> (3) Workmen’s Compensation Act. </p> <p>Where there is evidence to support the finding of fact of the Superior Court in a petition under the Workmen’s Compensation Act, the court following the rule adopted in Jillson v. Boss, 38 R. I. 145, and Corral v. Hamlyn, 38 R. I. 249, will accept the finding as conclusive.</p> <p>(3) Workmen’s Compensation Act.</p> <p>In a petition under the Workmen’s Compensation Act the court found (12) “That it is not certain either way, whether if said petitioner should resume his said employment or similar employment with a different employer for said employment, he would or would not receive the same amount of wages as the amount received from said respondent employer.”</p> <p>Held, that in effect the finding was a declaration by the court of its inability to make a finding, but as the petitioner did not challenge its correctness, it could not furnish the basis of an appeal.</p> <p>W) Workmen’s Compensation Act.</p> <p>Section 11 of Article II of the Workmen’s Compensation Act is only intended to furnish compensation for loss of earning capacity. Without such loss there is no provision for compensation, although even permanent physical injury may have been suffered and the burden is. upon a petitioner to show this loss and with reasonable definiteness, its amount.</p>

<p>(1) Highways and Bridges. State Board of Public Roads. Negligence.</p> <p>It was the intention of the General Assembly, by Pub. Laws, cap. 846, §§ 1 and 6, to place all bridges lying between portions of any highway which has', been constructed by or upon which work has been done by the State through; the Board of Public Roads, under the supervision of said board, from and after the passage of said act, to the same extent and with the same powers; to reconstruct and repair which had theretofore been given to such board, in the matter of highways.</p> <p>Prom the passage of said act the city within which the bridge was situated' became divested of any power to repair or to do anything in or about the maintenance of the bridge, and could not be held responsible for its defective' condition.</p>

<p>Trespass. Heard on exceptions of defendant and sustained.</p>

<p>(1) Common Carriers. Negligence. Use of Appliances.</p> <p>In a personal injury action a declaration alleging that defendant did not exercise reasonable care in the control, management and operation of an electric car, but that it wholly failed to do so and by its a’gents so carelessly and negligently controlled, managed and operated the. car that it ran into and upon the plaintiff is sufficient in this respect, and it is not necessary to allege the particular appliances which the motorman was called upon to operate or the particular order or manner in which he should operate them.</p> <p>(#) Common Carriers. Negligence. Use of Appliances.</p> <p>In a personal injury action a charge stating in substance that a motorman is bound to make such use of his appliances to stop the car as a reasonable person might do under the circumstances, is proper.</p> <p>(S) New Trial. Decision of Lower Court.</p> <p>If the decision of the trial judge in denying a motion for new trial was justified by the evidence, upon exceptions to such decision, it is not important that he may have reached such conclusion through faulty reasoning or even through a mistake of law or fact.</p> <p> (4) Personal Injury Action. Damages for Death of Minor. </p> <p>In a personal injury action by a parent to recover for the death of his minor child, aged five and one-half years, while the question of damages in such a proceeding is a very difficult one and incapable of exact determination, a jury is not justified in assessing damages in the absence of any testimony bearing upon the value of services and the cost of support.</p>

<p>(1) Wills.</p> <p>The words of a will will be taken in their literal and ordinary import unless' , there is something in the context or attending circumstances which shows ■ that they were used in a different sense.</p> <p> (2) Wills. Construction. </p> <p>Testamentary devise “all the rest of my estate I give, devise and bequeath to my wife for and during her natural life — at her death whenever the same may occur 1 direct and bequeath the residue of my estate to — (his brother; his two sisters and two sisters-in-law) or their survivors share and share alike to them and to their heirs forever.”</p> <p>Held, that the word “survivors” was used in its ordinary sense.</p> <p>Held, further, that the interest was not vested since it would be impossible before the death of the life tenant to ascertain to whom the residue would pass.</p> <p>Held, further, that the brother as the only survivor of the persons named, was • entitled to the entire residue.</p>

<p>(1) Criminal Law. Conviction of Lesser Offence. Certiorari. New Trial. Defendant was indicted for murder and found guilty of assault. He admitted’ at the trial that during an affray between himself and deceased he inflicted the wound causing death, but claimed that he acted in self-defence. Defendant took no steps toward filing a motion for a new trial, but filed a motion asking the trial court to discharge him from arrest on the ground that the verdict was illegal. This motion was denied and defendant was sentenced.Defendant then requested the court to fix a time within which he might ■ file a bill of exceptions to the decision of the court denying his motion,, which request was denied, and exception taken. On certiorari:</p> <p>Held, that under Gen. Laws, 1909, cap. 354, § 24, the verdict was warranted. Held, further, that certiorari would not lie since defendant could have obtained: a review of the cause through motion for new trial.</p> <p>Held, further, that the consideration of a bill of exceptions based on the action' of the trial court in the denial of the motion of defendant, assuming that suchi a bill could reach the court in some proper manner, would practically' involve a review of the verdict in the absence of a transcript of the testimony..</p>

<p>(1) Religious Corporations. Principal and Agent. Ultra Vires.</p> <p>Defendant was a corporation under the law for the incorporation of Roman Catholic Churches. Plaintiff having brought to the pastor of the parish, who was also treasurer of defendant, certain money, received from the treasurer a note purporting to be the note of defendant corporation. The money was placed in the common fund of the church and paid out as occasion arose for any of the purposes of the corporation.</p> <p>Plaintiff made repeated loans, which were entered on the back of the note, and at stated periods the accumulated amounts with the interest were put into a new note.</p> <p>The by-laws of defendant provided that in the incurring of any indebtedness, exceeding the sum of $500, the action of a quorum of the trustees must be confirmed by certain church authorities, and that no member of the board of trustees should have any power to sign any note or contract any liability except in pursuance of a special resolution of the trustees entered on the records and signed by three trustees and confirmed by the stated authorities.</p> <p>This by-law was habitually ignored by the treasurer, and the business was carried on solely by him, including the contracting of many and large debts, all of this with the knowledge of the other members of the corporation.</p> <p>From 1902 apparently no meetings of the corporation were held. The by-laws provided for an examination of the treasurer’s books, but this was not done.</p> <p>It appeared from the records of the treasurer that certain sums borrowed were authorized, but the meetings were not held. The treasurer in accordance with the by-laws forwarded to. the Bishop a statement showing money borrowed, for many years, but such statements did not contain items of many borrowings, made by written consent of the Bishop. It did not appear whether or not the money loaned by plaintiff was a part of the debts covered by the special resolutions shown in the records authorizing the treasurer to borrow specific sums of money, nor whether such loans were a part of debts reported by the treasurer. Each year the treasurer wrote up records of a meeting which had not been held and sent them to the secretary to sign; all business recorded related to the purchase of real estate:</p> <p>Held, that the money was had and received by defendant, for the possession of the treasurer was the possession of the church.</p> <p>Held, further, that when a religious corporation engages in purely secular affairs, it is subject to the same principles of law and the same doctrines as to ratification, acquiescence, and estoppel as a private civil corporation. The society cannot accept the benefits of a transaction and then refuse to pay on the ground that the contract was ultra vires.</p> <p>Held, further, that the rule that the separate and individual action of the trustees or any number of them, not meeting and taking action as a board, could not create a corporate liability, did not apply to a case where the ground relied on was the abandonment by the trustees of the business affairs of the corporation to the treasurer, and their negligent acquiescence therein.</p> <p>(£) Principal and Agent. Evidence.</p> <p>While the declarations of an alleged agent are not admissible against the alleged principal to prove the fact of agency, the testimony of the agent is competent in establishing the fact of agency.</p> <p>(S) Banking.</p> <p>It appeared in evidence that as well as borrowing from the plaintiff in behalf of the church the treasurer also borrowed from a large number of persons in the same manner; giving them notes and when they required the money, paying it with interest. This occurred almost daily.</p> <p>Held, further, that the transactions did not constitute a banking business.</p>

<p>(1) Divorce. Amendment of Specifications.</p> <p>After a petition for divorce from bed and board on the grounds of adultery, extreme cruelty and other gross misbehavior and wickedness, without specifications as to the latter ground, had been denied for the reason that neither adultery nor extreme cruelty had been proved, and exception overruled, petitioner moved in the Supreme Court to amend her petition by adding specifications of alleged misbehavior and wickedness.</p> <p>Held, that as the evidence warranted the court under an amended petition in granting the divoi'ce, petition to amend would be granted, and under Gen. Laws, cap. 298, § 22, respondent would be permitted to show cause why the ease should not be remitted with direction to enter decision for petitioner.</p> <p> (8) Divorce. Evidence. </p> <p>In a petition for divorce, on the ground of gross misbehavior, letters written by a third party to ropondent, disclosing hatred of the writer towards the petitioner and referring to the existence of improper relations between the writer and respondent, are admissible against respondent where it appeared that respondent did not repudiate the letters, but continued his correspondence with the writer, had her at his house in the absence of his wife and on occasions visited her alone at her lodgings.</p> <p> (8) Divorce. Separate Maintenance. </p> <p>The provision in Gen. Laws, cap. 247, § 8, for divorce from bed and board "for such other causes as may seem to requhe the same” refers to causes for separation which if they do not equal in enormity, yet are like in kind with the offences that are causes of divorce, and the general clause providing for divorce for “gross misbehavior and wickedness repugnant to and inconsistent with the marriage covenant” requires that the conduct should have some character of licentiousness or brutality, allying it in its moral attributes with adultery or extreme cruelty.</p> <p>Upon consideration of the evidence:</p> <p>Held, that the conduct of respondent, although not amounting to adultery, had such a character of licentiousness as allied it to that offence and was like it in kind.</p>

Trespass on the case for negligence. Heard on petition of defendant to establish truth of his exceptions and. petition denied.

<p> (1) Towns. Highways. Boundaries. </p> <p>Where a road upon which an accident happened through a defect therein, was named as a boundary of a highway district as defined by a town council, it does not tend to show that the town had assumed responsibility for its repair, since a road so named as a boundary might as well be a private way as a public highway.</p> <p> {2) Towns. Highways. Dejects in Highways. Description. </p> <p>The boundaries of a highway district as defined by a town council were stated as “Beginning at Edmund’s corner, thence westerly across Natick bridge to the old turn-pike at T’s blacksmith shop, thence on Natick Hill Road, to the road leading past the B. farm to the Cranston line. Also said turnpike road from the X. R. R. at W. through N. to the Cranston line. Also the road from the gate road northerly by W’s house to the road leading from N. to Edmund’s corner. ”</p> <p>Pub. Stat. of 1882, cap 65, § 2, required the town council to “assign and appoint in writing annually to the surveyors, their several limits and divisions of the highways for repair and amendments.”</p> <p>Helti, that, while not clear the description as a whole might be taken as intended to point out the highways making up the district, and therefore, including Natick Hill road among them, and so the record was admissible as showing an assumption of responsibility by the town over the road, although its admission might require suitable instructions from the court as to its evidentiary significance.</p> <p>(S) Highways. Dedication.</p> <p>Where there is no testimony of any formal act of dedication, if a road be a highway by dedication it is such by virtue of the presumption of dedication arising from continued user.</p> <p> (4) Highways. “According to the Course of the Common Law.’’ </p> <p>Gen. Laws, 1909, cap. 82 provides, § 26: “Nothing in this chapter shall be construed to hinder or prevent the public from acquiring by dedication or user lands — for highways — according to the course of the common law.”</p> <p>Sec. 27. “Nothing in the preceding section shall be construed to render any town liable for the mending and repairing of any highway, unless the same shall have been declared to be a public highway by the town council of the town wherein it lies.”</p> <p>Held, that under these provisions the obligation on the part of the town to repair a highway acquired by the public by user or dedication, was left to be ascertained or proved independently of the fact of dedication or user, two facts being necessary to establish such liability, first, immemorial use and second, the making of repairs as evidence of an acceptance by the town.</p> <p> (B) Highways. Dedication or User. </p> <p>To create a public way by use, the proof must show that the use has been general, uninterrupted, continuous, and adverse so as to warrant the inference that it had been laid out, appropriated or dedicated by the proprietors of the adjoining land to the public. An occasional use by a few persons living in the neighborhood without any assertion of public right is not sufficient, and the use of a road by the abutters thereon without any indication of a claim of public right in so doing, is as consistent with the exercise of a right appurtenant to their estates or with permission, as with a claim of public right. j</p> <p> {6) Highways. Dedication. User. Repairs. </p> <p>Under the common law the existence of a public highway cannot be established by evidence of repair alone.</p> <p>(7) Highways. Highway Districts. Evidence.</p> <p>Where proof of the creation of a public way by immemorial use is lacking, the action of a town council in including the way in the limits of a highway district, in itself shows neither use nor repair of the road; nor can it be treated as a declaration by the council that the road was a highway in the absence of long continued public use prior to that time.</p> <p>Semble: Even if repair of a road for 14 years were to be taken as proof of a public use of the way, it would not satisfy the requirement of the immemorial use from which a dedication can be inferred.</p>

<p>(1) Prohibition. Jail Limits.</p> <p>The office of a writ of prohibition is to restrain unlawful judicial action by inferior courts, judges or other officers exercising judicial functions. Such writ is not properly directed to an officer acting in an executive ministerial or administrative capacity.</p> <p> (%) Prohibition. Jail Limits. </p> <p>In granting to persons imprisoned the liberty of the jail yard under Gen. Laws, 1909, cap. 325, § 4, the keeper of the jail is exorcising an administrative function and prohibition will not lie to restrain the exercise of his judgment.</p> <p>Semble: In granting the liberty of the jail yard to one not entitled to it, the keeper of the jail exceeds his authority and pérmits an escape for which he would be liable under his bond.</p>

<p>(1) Certiorari. Removal of Police Officer. Judicial Proceedings.</p> <p>While the power of removal from office is not essentially judicial, yet when the law vesting the authority in a local body indicates that it shall be exercised for cause only, and expressly or by implication that the officer shall have notice of the charges against him and shall be entitled to be heard and to offer evidence in his defence, then the proceeding is judicial in character. Donahue v. Town Council, 25 R. I., 79, distinguished.</p> <p>(0) Certiorari. Removal of Police Officer.</p> <p>The action of the board of aldermen of the city of Central Falls in removing a member of the paid police department, under clause 2, Section 4 of the charter is reviewable on certiorari, on questions of jurisdiction and of law.</p> <p> (S) Certiorari. Removal of Police Officer. </p> <p>The charter of the city of Central Falls provides that members of the paid police department may be removed “for misconduct or incapacity of such a character as the board of aldermen may deem a disqualification for said office. ”</p> <p>Held, that while a wide discretion was given the board in making definitions and regulations as to what should constitute misconduct or incapacity, this-discretion could not defeat the requirement that there could only be removal for cause, necessitating evidence in support of the charge.</p> <p> (4) Certiorari. Removal of Officer. </p> <p>As a tribunal acting in a judicial capacity has no authority to make a finding of fact in the entire absence of evidence to support it, an allegation that petitioner was removed from office without any evidence to prove the charge against him, raises a question of law, and, perhaps in a narrow sense, a question of jurisdiction, which may be reviewed on certiorari.</p> <p> (5) Certiorari. Rules as to Examination of Evidence. </p> <p>As a writ of certiorari does not lie to review findings of fact, the court will not under it ordinarily examine or consider the evidence, but will do so in so far as may be necessary to determine whether or not the inferior tribunal had jurisdiction, or whether or not there was any competent evidence to support the charges, and whether or not the rulings admitting testimony over objection were correct, where there was no other and competent evidence to support the charges; and for these last enumerated purposes the evidence may be brought up with the record.</p> <p> (6) Certiorari. Removal of Police Officer. </p> <p>Upon charges against a police officer for failure to do certain acts which it is implied he could have and ought to have done as part of his official duties, both the duty and the ability to perform the acts must be shown in order to establish the charge of misconduct, and if the acts could only be done by issuance of legal process, which was refused by those having authority to do so upon his application therefor in good faith, there would be no misconduct on his part.</p>

<p> (1) Wills. Equitable Conversion. </p> <p>Testator devised his house to his wife for life, then to his niece for life, then to a grandnephew, upon condition that he took the name of testator, but if he rejected the condition, the house was to be sold, the proceeds to be thrown with the personal property and the whole divided between the sisters of testator if alive, or their heirs, if dead, in equal proportions.</p> <p>Held, that upon rejection of the condition by the nephew the whole fund remaining for distribution would be regarded as personal property even though the house had not yet been sold, under the doctrine of equitable conversion.</p> <p> (%) Wills. Vested and Contingent Interests. Bequests. </p> <p>At the time of execution of the will, testator had two sisters. One died before testator and the other deceased before the time set for the distribution of the fund, which was to be divided upon the rejection of the devise by the nephew.</p> <p>Held, that the gift in the clause “the whole to be divided between my sisters, if alive, or their heirs, if dead, in equal proportions” was not vested until after the death of the last life tenant and the rejection of the devise by the nephew.</p> <p>Held, that the word “heirs” was a word of purchase and not of limitation, the gift to the heirs being substitutional, there being nothing to show that the word “or” was not intended to have its usual significance.</p> <p>(8) Wills. Heirs. “Between."</p> <p>In the above case it was the intention of testator that the “heirs” of each sister should take the one-half to which each sister would have been entitled, for “between” properly refers to two and not more.</p> <p> (4) Wills. Construction. Equal Proportions. “Heirs." </p> <p>In the above case the words “in equal proportions” are satisfied as applicable to the equal division of the fund between the two classes of heirs, and grandchildren of the sisters take by representation per stirpes the share their parent would have taken if living and not per capita.</p> <p> (5) Wills. Construction. “Heirs." </p> <p>In the above ease, the word “heirs” was not used in a technical sense, but as the estate to be divided was in the form of personalty, it would be held to mean those entitled to succeed to personal property in case of intestacy.</p> <p> (6) Wills. “Heirs.” Time of Vesting of Estate. </p> <p>In the above case the word “heirs,” means the heirs of testator’s two sisters' who were in being at the time of the rejection of the devise by the nephew after the death of the last life tenant, the will showing the intent of the testator to fix that time for ascertaining the “heirs” 'who would then be-entitled to distribution of the fund.</p>

<p>(1) Criminal Complaint. Neglect to Provide. “Means.”</p> <p>Upon a criminal complaint under Gen. Laws, 1909, cap. 347, § 39, for neglecting to support a wife and child according to his means, it is not necessary to show that defendant had actually been in the receipt of money during the period in which the offence is charged, but it is sufficient to show that he had the means of earning money had he been so disposed. The words “according to his means’’'refer to capacity to earn money as well as to property actually owned.</p> <p> (8) Prima Facie Case. Direction of Verdict. </p> <p>Where a complainant has made out a prima facie case and the defendant has offered no evidence, a request to direct a verdict for defendant is properly denied.</p> <p> (8) Neglect to Provide. Reasonable Doiibt. </p> <p>Upon a criminal complaint under Gen. Laws, 1909, cap. 347, § 39, for neglecting to support a wife and child according to his means, the guilt .of defendant in this respect must be proved beyond a reasonable doubt.</p>

<p>(1) Jurors. Excuse for Cause.</p> <p>The matter of excusing jurors for cause is largely if not wholly in the discretion of the trial court and the exercise of such discretion will not be reviewed unless some abuse thereof clearly appears warranting the interference of the appellate court.</p> <p> {£) Criminal Complaint. Milk Laws. Charge of Court. </p> <p>In a criminal complaint for having adulterated milk in his possession, with intent to sell, a charge of the court even accepting the interpretation placed upon it by defendant, does not amount to prejudicial error, in view of undisputed testimony showing that the milk was adulterated.</p> <p>(8) Criminal Complaint. Milk Laws. Complaints.</p> <p>Under Chapter 173 of the Gen. Laws of 1909, it is not necessary that all complaints must be instituted by the inspector of milk, based upon an analysis of a chemist of samples taken by collectors, all of whom should be officers appointed and sworn under the act, but an individual may submit milk for examination and request a chief of police to make complaint and under Sectiod 23 it is specifically provided that any chiefs of police may make complaint and prosecute for all violations of the chapter.</p>

<p>(1) Workmen’s Compensation Act. Previously Diseased Condition.</p> <p>In a petition under the Workmen’s Compensation Act, while there was some evidence that petitioner, a hack driver, admitted that he had an attack of dizziness just before he fell from the hack, and that caused him to fall, there was no evidence that he had had a previous attack while driving, and there was evidence which showed that petitioner’s fall was more than the mere inert collapse of an unconscious man and that it was a positive throwing of petitioner from his seat by the movement of the hack turning or lurching into the gutter toward or against the curbstone.</p> <p>The decision of the Superior Court stated “the fall probably being due to dizziness or unconsciousness induced by a disease from which he was suffering” and found that the accident was one arising out of the employment:</p> <p>Held, that the decision embodied a conclusive finding of fact that unconsciousness or dizziness was not the sole cause of the fall, and there was evidence such as to warrant the finding that petitioner received a personal injury by accident arising out of his employment and under the decision in Jillson v. Boss, 38 R. 1.145, the decision would not be disturbed.</p> <p> (2) Workmen’s Compensation Act. Predisposing Cause. </p> <p>Although a diseased condition predisposed a workman to the accident which occurred, so that such condition was a contributing or antecedent cause of the accident, nevertheless that in itself does not prevent the happening being “an accident” which “arose out of the employment.”</p> <p>Vincent, J., dissenting.</p>

<p>Trespass.' Heard on exceptions of defendant and sustained.</p>

<p>(1) Criminal Complaint. Lewd and Wanton Person. State Workhouse. Jurisdiction. Appeal.</p> <p>The offence under Gen. Laws, 1909, cap. 347, § 25, providing that “every lewd, wanton or lascivious person in speech or behavior, shall be imprisoned not less than six months nor more than three years,” is punishable by commitment to the state workhouse and house of correction, whether such commitment emanates from the district court originally or from the Superior Court upon appeal.</p> <p> (2) Criminal Complaint. Jurisdiction. Appeal. Lewd and Wanton Person. </p> <p>Gen. Laws, 1909, cap. 354, § 38, providing that “every person convicted of any of the offences mentioned in Section 25 of cap. 347, shall be sentenced by the district court to the state workhouse and house of correction” does not prevent the Superior Court from determining the case on appeal and sentencing the defendant to the state workhouse and house of correction, as the district court might have done had an appeal not been taken.</p> <p>($) Infamous Crime. Constitutional Law.</p> <p>The offence of being “a lewd, wanton or lascivious person in speech or behavior” does not constitute an infamous crime, requiring prosecution by indictment under the provisions of Cons. R. I. Art. I, § 7.</p>

<p>Assumpsit. Certified on constitutional question.</p>

<p>(1) Workmen’s Compensation Act. Constitutional Law.</p> <p>A statute should be sustained unless its unconstitutionality is clear beyond a reasonable doubt. A reasonable doubt is to be resolved in favor of the-legislative action.</p> <p>(#) Workmen’s Compensation Act. Constitutional Law.</p> <p>Pub. Laws, cap. 831, the “Workmen’s Compensation Act,” is not obnoxious to Cons. R. I. Art. I, § 2, providing that “all laws . . . should be made for the good of the whole; and the burdens of the State ought to be fairly distributed among its citizens.”</p> <p> (8) Constitutional Law. </p> <p>An objection to the constitutionality of an act, that it unjustly discriminates between employers and also deprives a minor of his property without due process of law will not be considered where the objectors are neither em-. ployers nor minors, since one who objects to a State statute as in violation of the federal constitution must bring himself by proper averments within the class as to whom the act is unconstitutional.</p> <p> (4) Workmen’s Compensation Act. Constitutional Law. </p> <p>Pub. Laws, cap. 831, the “Workmen’s Compensation Act,”'in regard to the classification of employers and employees in excluding certain of each class from its operation, is nofobno’xious to Cons. U. S. Art. XIV of amendments, § 1, “nor shall any state . . . deny to any person within its jurisdiction the equal protection of the laws,” since the act is neither arbitrary nor unreasonable in its exclusion of employees in domestic service, and agriculture, casual employees, those receiving more than $1,800 a year, and employers of five or less workmen and their employees.</p> <p> {5) Workmen’s Compensation Act. Constitutional Law. </p> <p>Without deciding whether the difference in situation between the employer and employee, arising from the acceptance or non-acceptance of the act by the employer, is a classification byathe law itself, whatever of inequality results from it as to different employees arises from the fact that theabolishing of the three defences of the employer is not made universal, but is limited to actions against employers who do not accept the compensation scheme of the act. The employee is deprived of no prior existing right. The legislature has power to repeal these defences with or without attaching conditions and limitations in the act of repeal.</p> <p>'(<?) Workmen’s Compensation Act. Constitutional Law.</p> <p>The Workmen’s Compensation Act, Art. I, § 6, in providing that an employee of an employer who shall have elected to become subject to the provisions of the act, shall be held to have waived his right of action at common law to recover damages for personal injuries, if he shall not have given his employer notice of such claim and have filed a copy thereof with the commissioner of industrial statistics, is not coercive or compulsory, but optional.</p> <p> (7) Workmen’s Compensation Act. Constitutional Law. Due Process of Law. </p> <p>As before the occurrence of an accident there is no property right growing out of it, an employee who has previously accepted the provisions of a • Workmen’s Compensation Act, is not deprived of property “without due process of law. ”</p> <p>(<5) Workmen’s Compensation Act. Constitutional Law. Trial by Jury.</p> <p>Where an employee has waived his right of action at common law, under a Workmen’s Compensation Act, he has waived the right of trial by jury which is incident to such action.</p> <p> (9) Workmen’s Compensation Act. Constitutional Law. </p> <p>Pub. Laws, cap. 831, the “Workmen’s Compensation Act,” Art. IV, in permitting an employer and his employees “to provide a scheme of compensation benefit or insurance in lieu of the compensation provided for in” the act, subject to the approval of the Superior Court, and in providing for the compensation features of the act becoming operative only ¡at the option of the employer, is not subject to the objection of unconstitutionality on the first ground as a delegation of legislative authority where it does not appear that the parties in the case at bar have entered into any agreement for an alternative scheme of compensation and is not obnoxious on the second ground to Cons. R. I. Art. Ill and Art. IV, §§ 1 and 2, and Cons. U. S. Art. XIV, § 1 of amendments as a delegation of legislative authority, since the power given an employer to choose from two alternative schemes both completely defined by law and designed to afford compensation for an accident to another is not a delegation of legislative power, so long as the other is not bound by the employer’s choice but is free to make his own choice.</p>

<p>(1) Criminal Law. Witnesses. Oath.</p> <p>After a witness had been sworn objection was made by defendant to his testifying on the ground that he was an atheist; and upon examination in support of the objection, the witness stated that he believed in the same God all people believe in. The opportunity was then offered the defendant to have the witness affirm in addition to the oath, but this he did not care to have done: — ■</p> <p>Held, that, while the decision of the trial court as to the competency of a witness is not final much must be left to his discretion, and under the circumstances it was not error to permit the witness to testify.</p> <p> ($) Criminal Law. Oath. Affirmation. </p> <p>The talcing of an oath is not the only way in which a witness may become competent to testify. An affirmation under the pains and penalties of perjury is sufficient.</p> <p> (8) Exceptions. </p> <p>An exception must be to some action or ruling of the court, and exception simply taken to remarks of counsel concerning which the court was not called upon to act, will not be considered.</p> <p> (4) Trial. Taking Case From Jury. </p> <p>Where neither the motion to take a case from the jury on account of alleged objectionable remarks by counsel, as it appears in the record, nor the bill of exceptions, disclose the objectionable matter, and it appears that the court assured defendant that the jury would be instructed to disregard the remarks, the court must presume in the absence of information to the contrary that this undertaking of the court was carried out, and as such a matter is largely, if not wholly, in the discretion of the trial court, exception to the refusal of the court to remove the case will be overruled.</p> <p> (5) Criminal Law. Indictments. Motion to Quash. </p> <p>After pleading to an indictment and proceeding to trial it is too late to move to quash for failure to charge the offence with sufficient particularity.</p> <p> (6) Criminal Law. Accomplice. </p> <p>Under the common law the testimony of an accomplice, without corroboration will support a conviction, and there is no statute modifying the rule in this State, and while such uncorroborated testimony is less satisfactory than that of other witnesses, this refers to the credibility of the witness rather than to his competency, and while such evidence should be received with caution, if believed, a jury is justified in basing their verdict upon it, and in instructing the jury in the case at bar that they were only to consider the testimony of the accomplice so far as they might find it corroborated by other witnesses, the trial court went further than the absolute requirement of the law, although the court cannot say such instruction was improper or was not justified by the circumstances.</p> <p>(7) Criminal Law. Accomplice.</p> <p>•Mere knowledge as to arrangements being made between the father of witness and the defendant, for the commission of a crime, and failure of witness to take any steps to prevent the crime is not sufficient to constitute the witness an accomplice.</p> <p> {8) Criminal Law. Accomplice. Accessory After Fact. Corroboration. </p> <p>An accessory after the fact is not an accomplice whose testimony requires corroboration.</p> <p> (9) Criminal Law. Accomplice. </p> <p>Where there is no dispute as to the attitude of a witness toward the transaction, it is a question of law for the court whether such acts make him an accomplice, and not a question to be submitted to the jury.</p> <p> (10) Evidence. Corroboration. </p> <p>It is not necessary that the testimony of a witness should be corroborated in every part, but it is competent for the jury if they find that some material part is corroborated to believe him as to other parts which are not corroborated.</p>

<p>(1) Municipal Corporations. Division of Town. Bonds. Sinking Fund. Contracts.</p> <p>Public Laws, cap. 942 of 1901, authorized the town of Warwick to issue bonds and provision was made for an annual appropriation by the town for interest and for a sum to be placed as a sinldng fund.</p> <p>By cap. 1012 of 1913, the town was divided and the division commission was directed to apportion the indebtedness between the two towns, the act providing that such apportionment should not bar the holder of any debt against the old town from recovering against it, but should be made only for the purpose of determining which town should be primarily liable for each debt and for establishing a right of recoupment between the towns. The act further empowered the commission to do every act necessary and essential to the complete division of the town.</p> <p>The commission apportioned the bonds between the two towns and also apportioned the sinldng fund in the same proportion.</p> <p>Held, that the requirement for the creation of the sinking fund constituted a part of the obligation of the bond between the town and each bondholder, and could not be impaired by subsequent legislation, and while this would not prevent a division of the town, the security of the bondholder required the safeguarding of the fund already accumulated and also adequate legislation for annual additions to the fund.</p> <p>Held, further, that under .the general provision to do every act necessary and essential to the complete division of the town it could not be held that the legislature intended the commission to formulate a scheme for the further accumulation of the sinldng fund for the court would not assume that the legislature intended a delegation of its sole legislative authority.</p> <p>Held, further, that as any action on the bonds must be brought against both towns regardless of where the commission had placed the primary Lability, no part of the fund should pass entirely under the control of either town, but its management as an entire fund should be the subject of suitable legislation.</p> <p>Held, further, that to force a bondholder to look to the security of a divided fund under different managements was to change his contract and amounted to a substantial interference with his security.</p> <p>Held, further, that cap. 1012 made no provision either for the future control of the portion of the fund existing at the time of the division or for the accumulation of the fund sufficient to redeem the bonds and therefore in dividing the towns the fund did not come within the contemplation of the legislature and there was no intention to deal with it, but it was left for further legislative action, and the commission was without authority to apportion it.</p>

<p>(1) Bills of Particulars.</p> <p>The office of a bill of particulars is not to make a pleading good in law which would otherwise be defective, but to furnish a more detailed statement of facts which already appear as general averments in a pleading legally sufficient.</p> <p> (3) Bills of Particulars. </p> <p>Save as regulated by statute the granting of a bill -of particulars is within the-legal discretion of the court and its action will not be disturbed unless there has been an abuse of discretion, and in no case should the action of the-trial court, upon an application for a bill of particulars be regarded as reversible error, unless it clearly appears that substantial harm has ■ resulted therefrom.</p> <p> (3) Probate Appeals. </p> <p>At a hearing before a probate court, upon petition for the removal of an administrator, respondent moved for a bill of particulars of the charges, which was denied, and upon hearing the court entered decree granting the petition and respondent appealed, on the ground that the decision denying the motion was error, and on hearing in the Superior Court, without receiving evidence the court entered decision reversing the decree:</p> <p>Held, that respondent should have seasonably renewed his motion in the Superior Court and exception to decision of Superior Court, sustained.</p> <p> (4) -Probate Appeals. </p> <p>An appeal from a probate court to the Superior Court is not in the nature of a writ of error or a bill of exceptions, and the rulings of the probate court made at the hearing do not come before the Superior Court for review, but only the alleged error that inheres in the decree.</p> <p> (5) Probate Appeals. Sufficiency of Allegations in Probate Proceedings. </p> <p>'Where a probate court had jurisdiction of the subject-matter and of the ■ parties, although the allegations in a petition for removal of an administrator were not alleged with certainty and particularity, yet under the provisions of Gen. Laws, 1909, cap. 311, § 8, the decree entered by the probate court should not be deemed invalid and reversed by the Superior Court on appeal on the ground of insufficiency of such allegations, but the appeal should be tried upon its merits.</p>

<p> (1) New Trial. Accident and Mistake. </p> <p>A petitioner claiming to be beneficially interested in real estate, the subject of a bill in equity wherein final decree has been entered, who claims to have had no notice of the suit until after the entry of the decree, cannot obtain relief under Gen. Laws, 1909, cap. 297, §§ 1 and 2, authorizing the Supreme Court to grant a new trial to “a party or garnishee in any action or proceeding in the Superior Court” under certain conditions. In any event these sections relate only to actions at law.</p> <p> (%) Equity. New Trial. Accident and Mistake. </p> <p>A person aggrieved by a decree in equity of the Superior Court who may obtain relief under Gen. Laws, cap. 297, § 3, is one who has a right to claim and prosecute an appeal from such decree, a party to the suit or one in privity with him and appellant’s proper relation to the suit must be shown by the record.</p> <p> (S) Equity. Trusts. Parties. Appealable Interest. Accident and Mistake. </p> <p>In proceedings affecting a trust estate, the trustee and cestui que trust are so far independent of each other that the latter must be made a party in order to be bound by the judgment. Therefore a cestui que trust, not bound by the decree has not the appealable interest entitling him to relief under Gen. Laws, 1909, cap. 297, § 3.</p> <p>A person claiming to be beneficially interested in real estate, the subject of a bill in equity wherein final decree has been entered, who claims to have had no notice of the suit until after the entry of thé decree and seeks to set aside the decree, on the ground that his rights were affected thereby, can do so by filing an original bill in the nature of a bill of review.</p>

<p> (1) Equity. Removal of Cloud. Leases. Abandonment. </p> <p>On a bill in equity to obtain the cancellation of a lease for 99 years, conferring upon lessee the right to quarry granite on lessor’s land, it appeared that from the execution of the lease for a period of twenty years, lessee had performed no act which could reasonably be said to be a working of the quarry or the making of preparations to that end.</p> <p>Held,, that such failure on the part of lessee would justify the conclusion of an intention to abandon the lease, but such abandonment could not be brought about by the action or inaction of lessee alone, but there must be some act or attitude on the part of lessor indicating his acquiescence in the abandonment.</p> <p>Held, further, that the act of lessor in rendering a bill for rent showed an intent to hold lessee to the terms of the lease and did not support any claim of an acquiescence in the abandonment of the lease up to that time.</p> <p>Held, further, that if there had been an abandonment by lessee the filing of the bill in equity by lessor for cancellation of the lease would be sufficient to show his acquiescence therein.</p> <p>Held, further, that a period of three years of inactivity on the part ’of lessee after the rendering of the bill for rent, following a prior period of thirteen years was sufficient to show an abandonment on the part of lessee.</p> <p> (8) Leases. Rental. Abandonment. </p> <p>A lease conferring the right to quarry granite on the land of lessor, contained the following reservation of rent “paying therefor during said term the sum of one cent per cubic foot on all stone used for monumental work, providing the sum shall not exceed $25 for any one year when the quarries are worked; when the quarries are not worked the payment shall be but one dollar per year. There will be no forfeiture of- this lease until made in writing by the said lessee his heirs, executors, administrators or assigns. ”</p> <p>Held, that this did not fix a minimum rental of one dollar per year and did not give the option to lessee to work or not to work the quarry at his election, but such rental was intended to cover periods when lessee was temporarily prevented from prosecuting the work and that it was incumbent on lessee to work the quarry within a reasonable time after the execution of the lease and to continue to work it except during periods when it would be impracticable to do so.</p> <p>Held, further, that the purpose of the transaction being to benefit lessor as well as' lessee, the lessee must exercise his privilege in good faith and in a manner which would not unnecessarily deprive lessor of his profit.</p>

<p>(.1) Pleading. Case.. Trespass. Negligence.</p> <p>Where an injury is the effect of negligence, though the force be immediate or direct, the plaintiff may maintain case or trespass at his option. The form of action does not affect the rule as to liability, which is founded on negligence in both forms of action.</p> <p> (8) Trespass. Accidental Injuries from Firearms. </p> <p>To constitute a valid defence to an injury through the accidental discharge of a gun, while being handled by defendant, it must appear that the discharge was entirely without the fault of defendant and that it happened by accident unavoidable by him.</p> <p>(S) Accidental Shooting. Negligence. New Trial.</p> <p>There is an established standard of duty imposed upon those handling firearms and to excuse an injury it must appear that it was unavoidable, but this rule is of necessity a general one and accordingly in cases of accidental shooting the question of negligence is held to be primarily at least for the jury to determine by applying the rule to the facts as found by them. The trial judge is not concluded by the verdict in such cases, but his power to grant a new trial is the same as in the ordinary case where conflicting testimony requires its submission to a jury. '</p>

<p>(1) Wills. Ademption. Advancements.</p> <p>An advancement after a will is made, to a child, is either a complete or a pro tanto satisfaction of a bequest even of residue and after such a pro tanto satisfaction of a residuary bequest, the obligation of the person advanced .to account for the advancement upon distribution is not affected by the subsequent execution of a codicil republishing the will.</p> <p> (8) Wills. Ademption. Advancements. </p> <p>A legacy adeemed by an advancement is not revived by a codicil which merely republishes the will.</p> <p> (8) Wills. Ademption. Advancements. </p> <p>The principle that a legacy adeemed by an advancement is not revived by a codicil which merely republishes the will is not affected by the statute of Wills, Gen. Laws, cap. 254, providing that a will shall be construed to take effect as if it had been executed immediately before the death of testator unless a contrary intention shall expressly appear by the will.</p> <p> (4) Wills. Advancements. Interest. </p> <p>While “advancements” in the technical sense, do not draw interest, it is possible to provide for interest by agreement, and in such case the interest stands as a part of the amount to be accounted for as advancement.</p>

<p>(1) Writs of Error. District Courts. Record.</p> <p>The writ of error to review rulings or decisions of a district court, is the common law writ of error, which brings up the record for inspection, to enable the court to affirm or reverse the judgment of the inferior court upon questions of law only. Under such writ an alleged error which does not appear upon the face of the record cannot be considered, and cannot be presented extrinsically by affidavits.</p> <p> (2) Writs of Error. Record. Presumption of Legality. </p> <p>Upon a writ of error, where nothing to the contrary appears upon the record, the court will presume that the action of an inferior court in removing a judgment by default under Gen. Laws, 1909, cap. 294, § 2, was taken after there had been presented to it legal cause therefor sufficient to move its judgment.</p> <p>(3) Writs of Error. Final Judgment.</p> <p>As a writ of error lies only to a final judgment, it cannot be invoked to review the action of a district court in removing a judgment by default under Gen. Laws, 1909, cap. 294, § 2, since such action is merely interlocutory.</p>