Volume 39 — Rhode Island Reports

<p>(1) Elections. Taxation. Constitutional Law.</p> <p>A proposed act of the general assembly, entitled “An act to create a financial council in the town of Warwick” provided that there should be a financial council of ten members and that all power and authority theretofore by law [ conferred upon, vested in or exercised by the electors of the town qualified to vote upon any proposition to impose a tax or for the expenditure of money in financial town meeting should be conferred upon and vested in and exercised by the financial council, but that the town council should continue to exercise all the powers and authority conferred upon them by general and special laws.</p> <p>The act provided that the electors qualified to vote upon any proposition to impose a tax or for the expenditure of money should elect the financial council, and for the nomination of candidates tiy such class of electors and for a special ballot.</p> <p>Cons. R. I., Art. II, as amended by Art. YII of amendments, provides that every male citizen of the United States having the qualifications of residence, etc., in the state and town or city who is possessed of real estate of the value of $134 shall have a right to vote in the election of all civil officers and on all questions in all legal town or ward meetings so long as he continues so qualified; that every such citizen who has registered under the law and who shall within the year next preceding have paid a tax assessed upon his property valued at least at $134 shall have a right to vote in the election of all civil officers and on all questions in all legally organized town or ward meetings and that every such citizen who has registered but has not paid the tax shall have a right to vote in the election of all civil officers and on ah questions in all legally organized town or ward meetings except in the-election of the city council of any city or upon any proposition to impose a tax or for the expenditure of money in any town or city.</p> <p>Held, that as financial town meetings have been held according to law in this, state not by virtue of any requirement or power under the constitution, but under statutory authority of the general assembly, the general assembly might in the exercise of its power prescribe that the financial town meeting should no longer be authorized by law and that taxes might be levied by some other method.</p> <p>Held, further, that if the assembly should provide that taxes should be assessed through the agency of another body and the electors were no longer empowered by law to meet in town meeting, there could be no legal town meeting of such electors and hence no questions in such a meeting to be voted on by the electors and therefore the constitutional provisions would not be violated.</p> <p> (8) Elections. Taxation. Constitutional Law. </p> <p>The purpose of a proviso is never to enlarge a right previously given but on the contrary to limit it; therefore the effect of the proviso in Art. II of the constitution, as amended by Art. VII of amendments, that no person shall at any time be allowed to vote in the election of the city council of any city or upon any proposition to impose a tax or for the expenditure of money in any town or city unless he shall within the year next preceding have paid a tax assessed upon his property therein valued at least at $134 does not give the registry voter who has paid a tax on his property valued at $134 any greater right than he possesses under the broad right to vote “on all questions in all legally organized town or ward meetings, ” but simply limits the right of the elector, who has merely registered and who has not paid the tax, to vote on all questions except propositions to impose a tax or for the expenditure of money.</p> <p>(S) Taxation.</p> <p>The power of taxation is vested primarily in the state and may be lawfully exercised by the subordinate political bodies of the state only in so far as and in the manner in which said power is delegated to them by the legislature.</p> <p> (4) Elections. Taxation. </p> <p>While the members of the proposed financial council are “civil officers,” ' nevertheless the proposed act in providing that they shall be elected by the electors of the town qualified to vote on any proposition to impose a tax or for the expenditure of money, does not limit any constitutional voting rights of the registry voter, since, registry voters under the constitution have the right to vote for those officers only whose election is required to be by the people.</p>

<p>(1) Intoxicating Liquors. Building Within 200 Feel of School.</p> <p>Gen. Laws, 1909, cap. 123, § 2, prohibits the granting of a license for the sale of liquors in any part of a building in ease that or any other part of such building is within two hundred feet, measured by any public travelled way of the premises of a public or parochial school, unless the license be for the sale of such liquors in a tavern that was licensed on the date named in said section.</p> <p> (£) Intoxicating Liquors. Distinct Buildings. </p> <p>The fact that the building for which a license is sought is placed beside and against another building which latter building is within the prohibited area, and that some of the outer parts of the former building are attached to the outer wall of the latter building, does not make them one building, where there is no interior connection or means of passage between the two.</p>

<p>(I) Life Insurance. Equitable Interests.</p> <p>A policy of insurance was payable in the event of the death of insured during the life of either his wife or his son to the company as trustee, to make certain payments to the wife and son and the survivor of them, the balance after the death of both beneficiaries to be paid to the executors, administrators or assigns of insured.</p> <p>Insured thereafter executed a will by which he gave to his wife the residue of his estate. Insured deceased, leaving his wife and son surviving, and the company thereafter made nine payments under the trust agreement, prior to the death of both the son and widow of insured.</p> <p>Held, that insured reserved an equitable reversionary interest in the proceeds of the policy as part of his estate, subject to the possibility of its being exhausted if his wife or child lived long enough and while contingent in character it was capable of passing and did pass to the widow, i. e., the equitable right, but not the present possession and enjoyment, and therefore the administrator of the widow was entitled to the proceeds.</p>

<p> (1) Dogs. “Enclosure.” </p> <p>Under the provisions of Gen. Laws, 1909, cap. 135, § 3, “If any dog shall assault or bite or otherwise injure any person while travelling the highway or out of the enclosure of the owner or keeper of such dog, the owner or keeper of such dog shall be liable to the person aggrieved for all damages sustained and it shall not be necessary, in order to sustain any such action, to prove that the owner or keeper of such dog knew that such dog was accustomed to do such damage,” premises of a defendant which are not surrounded by any fence, ditch or hedge cannot be considered as an enclosure within the purview of the statute.</p> <p> (2) Dogs. Evidence. </p> <p>In an action under Gen. Laws, 1909, cap. 135, § 3, to recover damages for injuries resulting from the bite of a dog, evidence regarding the character of the dog some six months after the injury, was properly excluded.</p> <p>Under Gen. Laws, 1909, cap. 135, § 3, the character of the dog is not material, for the statute has enlarged the common law liability, and evidence that the dog had always been peaceable prior to the infliction of the injuries would not be admissible.</p>

<p>(J) Evidence. Refreshing Recollection.</p> <p>Where a witness was permitted to make use of a book in which he had made certain memoranda during an examination by him of plans of a building, for the purpose of refreshing his recollection, the book itself was properly excluded, since it is not the memorandum which is evidence but the recollection of the witness.</p> <p>(4?) Contracts. New Trial.</p> <p>A verdict on conflicting facts, approved by the trial court will not be disturbed, in the absence of any apparent error.</p>

<p>(1) Trover.</p> <p>The transfer of a mortgage from plaintiff to defendant assuming it to have been done with full knowledge on the part of plaintiff which was not inconsistent with the course of dealing prevailing between the parties for several years, and where defendant did not for two years after the transfer treat the mortgage as her individual property, is not sufficient to establish a conversion by defendant.</p> <p> (S) Trover. </p> <p>The act of defendant who was the agent of plaintiff to deal with a mortgage for the benefit of plaintiff in transferring the mortgage to a third party as security for a loan to defendant, was a conversion of the property of plaintiff.</p>

<p>(1) Adoption. Parent and Child. Inheritance.</p> <p>Pub. Stat., 1882, cap. 164, §§ 6 and 7 (now Gen. Laws, 1909, cap. 244, §§ 5 and 6), of the adoption of children provide that “a child so adopted shall be deemed, for the purposes of inheritance by such child, and all other legal consequences and incidents of the natural relation of parents and children, the child of the parents by adoption, the same as if he had been born to them in lawful wedlock, except that he shall not be capable of taking property expressly limited to the heirs of the body or bodies of the parents by adoption, nor property from the lineal or collateral kindred of such parents by right of representation.”</p> <p>Held, that under this statute no right of inheritance from a child of the adopting parent born to him in lawful wedlock was given to the adopted child.</p> <p>B. I. Hospital Trust Co. v. Humphrey, 32 R. I., 318, explained and limited.</p> <p>(2) Adoption.</p> <p>The statute of adoption creates a status and relationship unknown to the common law. The right of inheritance by the adopted child must therefore be derived from the adoption statute.</p> <p>(S) Construction of Statutes.</p> <p>While an exception in a statute may properly be considered in ascertaining the true meaning of the statute, it cannot put in to the previous provision something which was not there before. The language of the exception therefore is to be considered in connection with the other provisions of the statute in arriving at the true meaning of the whole statute.</p>

<p>(1) Contracts. Construction. “Prove.”</p> <p>After an agreement had been made for the sale of two tracts of land, claims to the ownership of the second tract were made by third parties, and in consequence of such claims vendor modified the agreement and it was provided that the notes to be given by vendee should be held until such time as vendor should either prove that clear title passed by her deed or should make the title clear by further conveyance within one year or at the end of the year it should be determined by arbitration how much should be deducted from the price by reason of outstanding interests, which sum was then to be credited on the notes.</p> <p>Without performing these conditions the vendor brought an action against vendee in assumpsit for refusal of vendee to have the notes delivered and to pay them, and vendee brought its bill in equity to have the prosecution of plaintiff’s action enjoined and to have the rights of the adverse claimants determined and the amount payable to vendor ascertained.</p> <p>Held, that the intention of the parties, while not specifying the method of accomplishing it, was that there should be a real and conclusive determination of the validity or invalidity of the outstanding claims before the delivery of the notes and payment of the withheld purchase price. But the validity or invalidity of such claims could only be established and made certain by some proceeding in court to which the adverse claimants were parties for they would not be concluded by the result of the trial of an action by vendor’against vendee for refusal of vendee to have the notes delivered . to vendor and to pay the same.</p> <p>Held, further, that the bill made a prima facie case stating substantial grounds for relief by injunction against the prosecution of the action at lq,w pending a conclusive determination of the title to the property.</p> <p> (2) Preliminary Injunction. </p> <p>As a preliminary injunction is not a formal determination of the rights of the parties and as its office is to hold matters in statu quo it will not as a rule be interfered with unless it be reasonably clear that it has been exercised in an illegal manner. To authorize its issuance however the complainant must at least make out a primo facie .case.</p> <p> {8 Equity. Adequate Remedy at Law. </p> <p>The adequate remedy at law which will deprive a court of equity of jurisdiction is a remedy as certain, complete, prompt and efficient to attain the ends of justice as the remedy in equity.</p> <p> (4) Vendor’s Lien. </p> <p>Where promissory notes, endorsed in accordance with an agreement for the sale of land, were retained by vendee after execution in accordance with the agreement, until vendor should be able to make a clear title to the land; until such time as vendor became entitled to delivery of the notes, she did not waive her vendor’s lien for such portion of the purchase money as might be found to be due.</p> <p>(5) Cloud on Title. Equity.</p> <p>In an action by a vendee to remove a cloud on title he may join a partially unpaid vendor as a party.</p> <p>(i6) Cloud on Title. Equity. Attachments.</p> <p>An attachment of real estate creates a lien thereon and constitutes a cloud on the title, and upon both grounds a partially unpaid vendor who has attached the property for the unpaid portion of the purchase price is a proper party to a bill by the vendee to remove a cloud on the title.</p> <p>(7) Cloud on Title. Equity.</p> <p>While a bill to remove a cloud must show some title in the complainant to the land in controversy, this may be done by the averment of the ultimate fact of title or by the averment of ownership or by stating facts which show title, and where a bill, although containing no express assertion of title in complainant, alleged that at the time of her conveyance to it the partially unpaid vendor who was made a party, “had at least an undivided half interest or share in said land and rights, if not the sole ownership thereof, ” and that she conveyed all her right, title and interest therein to the complainant, this constituted a sufficient averment of title.</p>

Bill in Equity. The decree entered in the Superior Court was as follows: “Final Decree. “This cause coming on to be heard upon bill, answer and oral evidence, and having been argued by counsel, upon consideration thereof, “It is Ordered, Adjudged and Decreed, that by and under the deed from Daniel Chase to the respondent, Rachel H. Cram, formerly Rachel H. Chase, dated April 5, 1892, by which said Daniel Chase granted and conveyed to the respondent, her heirs and assigns,…

<p>(1) Divorce. Alimony.</p> <p>Petitioner filed with her petition for absolute divorce a prayer for alimony. Decision was entered in her favor awarding “such alimony as shall be decreed in decree to be entered.” Thereafter a trust agreement was executed between the parties making provision for the future support of petitioner during her life or until her remarriage, containing this provision, '“the provision made for the said wife is made and she doth hereby accept the same in satisfaction and bar of any and all claims for allowance or alimony and of dower to which by the common law or by custom or by statute she might be entitled. ”</p> <p>Respondent set over to the trustees the funds named in the agreement and thereupon the trustees proceeded to execute the trust. An interlocutory decree was thereafter entered vacating all decrees for allowance and providing for a temporary allowance to petitioner out of the trust fund, the decree providing “said temporary alimony being in accordance with terms of said trust agreement; the provisions of said trust agreement being in lieu of and in substitution of and in bar of all claims for alimony or dower and the .decree for permanent alimony hereafter to be entered to be in accordance with the provisions of said trust agreement.” Later, a final decree was .entered on the petition for divorce which decree contained no provision as to alimony.</p> <p>Thereafter petitioner filed her motion for the entry of a decree for alimony.</p> <p>Held, that petitioner was barred by the trust agreement from maintaining any subsequent claim before the court for alimony.</p> <p>Held, further, that respondent was not precluded from raising the bar of the trust agreement because of the language in the interlocutory decree, for at the time of entering such decree no claim for alimony was being urged, but merely that of an allowance pendente lite.</p> <p> (2) Divorce. Alimony. Final Decree. </p> <p>Under Gen. Laws, 1909, cap. 547, § 5, a claim for alimony may be prosecuted after the entry of final decree in a divorce petition, hence a petitioner is not concluded by a final decree which contained no provision for alimony, although the petition for divorce contained such a prayer.</p> <p> (S) Divorce. Appeal. Alimony. </p> <p>While a decree for divorce cannot be reviewed on appeal, 'a decree for alimony entered after the entry of a decree for divorce can be so reviewed.</p> <p>Quaere: — As to the proceeding where the court in one decision grants the prayer for divorce and also passes upon a claim for alimony.</p> <p> (4) Divorce. Alimony. Agreements Between Husband and Wife. </p> <p>Under the terms of the statute with reference to the contracts which a married woman may make, a wife is permitted to enter into a contract with the husband with reference to the amount of and method of payment of a sum of money in lieu of alimony. Such agreements are not in their nature void as being contrary to public policy.</p> <p> (5) Divorce. Alimony. Contracts for Alimony. </p> <p>The court will not recognize or enforce an agreement as to alimony if it appears that such agreement is part of a bargain for facilitating the procurement of a divorce and the court will carefully scrutinize such an agreement and will not enforce it if its provisions are unjust to the wife or if it appears that fraud has been practiced upon her.</p>

<p>(1) Records. Evidence.</p> <p>In an action of assumpsit, evidence that witness examined the records and saw discharges of real estate mortgages' on a certain date, offered to prove that one of the defendants had mortgages discharged about the time of the alleged loan to the defendants in order to show that she had need of money to prevent a mortgage sale, is inadmissible.</p> <p>Semble: — The officer having custody of land records has no authority to certify what are the contents of his records or what they are in substance or effect. As a certifying officer he may make copies and certify to their correctness as copies.</p> <p>(P) Evidence. Harmless Error.</p> <p>In an action of assumpsit, upon the issue whether the loan was made to both or only to one of the defendants, evidence was improperly admitted to show a discharge of mortgages in order to show that one of the defendants had need of money at that time to prevent a mortgage sale, but it appeared from her own testimony that she had need of money about the time of the loan for that purpose, and as such evidence would have no probative force as to whether she participated in the loan except as it was connected with the testimony of the plaintiff as to her statements of such need of money in connection with the negotiation of the loan, it could not have influenced the jury, since it only established a fact to which she had herself testified and its admission did not constitute reversible error.</p>

<p>(I) Carriers. Refusal to Accept Fare. Damages.</p> <p>Where a conductor acted in good faith in refusing to accept a coin tendered for fare by a passenger, which was as a matter of fact, legal tender, and there was no improper or discourteous demeanor or language on the part of the conductor, the passenger can recover only compensatory damages, and the mere allegation of the plaintiff that he was humiliated and injured where the facts upon which such allegation is based do not warrant such conclusion is not sufficient.</p> <p> (B) Carriers. Refusal to Accept Fare. Damages. </p> <p>Where a conductor acted in good faith in refusing to accept a coin tendered for fare by a passenger which was as a matter of fact, legal tender and there was no improper or objectionable behavior or language on the part of the conductor and the passenger borrowing the fare from another person was not ejected nor delayed nor inconvenienced in completing his trip, there is nothing on which to found even compensatory damages.</p>

<p>(1) Landlord and Tenant. Lease Terminated by Fire.</p> <p>Where a lease contained the provision that in case the premises were damaged by fire “if lessor shall not elect to repair the same, then this lease shall terminate at the time of such damage,” the damage by fire did not render the lease void, but at most it was simply voidable, and by accepting rent for a period following the fire, lessor acted in a manner inconsistent with a purpose to terminate the lease and waived her right to so terminate it.</p>

<p> (1) Exceptions. Procedure. </p> <p>Appellants filed notice of their intention to prosecute a bill of exceptions. Appellee without haying filed notice of his intention so to do also filed a bill of exceptions. Both bills of exceptions were beard and allowed. At this hearing appellants’ attorney appeared and objected to the allowance of appellee’s bill.</p> <p>Held, that the procedure had with reference to the appellants’ bill of exceptions had no relation to the procedure required by the statute as to the appellee’s bill and bill of appellee would be dismissed.</p>

<p> (1) Corporations. Ratification of Act of Officer. Workmen’s Compensation Act. </p> <p>The president, treasurer and general executive officer of a corporation filed the notice that the corporation accepted the provisions of the Workmen’s Compensation Act. The notice was signed, “M. Mfg. Co., E. H. Mason, Treasurer. ”</p> <p>The board of directors never adopted or recorded any formal resolution expressly authorizing and directing the officer as treasurer to act for the corporation in filing such notice, but before filing it the officer consulted with all the directors and all agreed that such notice should be filed by the company and the corporate name affixed thereto by the officer as treasurer. Later all of the directors were informed of the fact that it had been filed, and no director or stockholder ever objected nor did the directors in regular meeting thereafter take any steps to disaffirm such act.</p> <p>There was evidence that the directors had no regular time of meeting and that the treasurer as the general executive officer of the corporation consulted with the other directors about its affairs.</p> <p>Held, that the act of the officer was ratified through the acquiescence of the directors and their failure to disaffirm or repudiate the same.</p> <p> (£) Workmen’s Compensation Act. Posting Notices. </p> <p>Upon the issue as to whether notices of acceptance of the Workmen’s Compensation Act, were posted in defendant’s factory as required by the act, plaintiff testified that she did not see them; was not looking for them and was not attempting to read any notices. There was other positive evidence that such notices were in fact posted.</p> <p>Held, that the direction of a verdict for defendant on the ground that the parties weie within the provisions of the Workmen’s Compensation Act was proper.</p> <p>($) Workmen’s Compensation Act. Notice.</p> <p>Since the Workmen’s Compensation Act requires that the notices posted in the factory of the employer must be copies of the notice filed with the Commissioner of Industrial Statistics there is no merit in the claim that it is a question for the jury whether notice in the English language is a reasonable notice.</p>

<p>.(1) Negligence. Fireworks. Principal and Agent. Municipal Corporations. Committees.</p> <p>The City Council of Pawtucket under authority of Pub. Laws, cap. 658, appropriated a sum of money for the celebration of July 4th and appointed a special committee of its members to arrange therefor. Certain members of a business men’s association were admitted by the committee to act with them and all organized as a general committee, and appointed a subcommittee on fireworks, consisting of two members from the city council committee and one from the business men and a sub-committee on the whole matter consisting of one member from the city council committee and two from the business men. The business men’s committee also raised a fund in addition to the city appropriation, but the evidence did not disclose whether it was used.</p> <p>The general committee voted to leave the matter of fireworks in the hands of the fireworks committee and that committee executed a contract with a company to furnish the fireworks "in a manner satisfactory to the Fourth of July committee, ” the company agreeing to save the city harmless from any loss or damage occasioned by any negligence of the company.</p> <p>The display of fireworks was produced by the company as a result of which a bomb which fell unexploded some 500 feet from the place of discharge was found by a child of seven years of age some week later and being ignited by the child exploded severely injuring him.</p> <p>Held, that the entire action of the city council committee in associating the outside members with them and in permitting them to act as stated was-unauthorized, but even if the council committee had acted solely by themselves they still had the same duties to the public and to the plaintiff and would have been liable.</p> <p>Held, further, that as the general committee was organized they were not acting as duly authorized agents of the city, and the members appointed by the city council in associating the outside members with them must be deemed to-have acted upon their personal responsibility, together with the others whom they permitted to join them.</p> <p>Held, further, that by all joining in the special plea the members of the committee appointed by the city had placed themselves in the same situation as the outside members, subject to the same duties and liabilities.</p> <p>Held, further, that the general committee as organized had no authority without the special license required by Gen. Laws, 1909, cap. 134, § 4, to-permit a display of fireworks, the resolution of the city council appointing its own committee, making no reference to the subject.</p> <p>Held, further, that the payment of the bill for the fireworks was of no significance, as it did not appear that it was paid by direction of the city council or that it was even paid by the city.</p> <p> (£) Independent Contractors. </p> <p>Held, further, that the company who made the display of fireworks was not an independent contractor, since the manner of doing the work was subject-at all times to the full control of the committee, and the mere fact that the company was permitted to make the display without interference by the-committee was immaterial.</p> <p>(8) Independent Contractor. Acts in Their Nature Dangerous.</p> <p>Held, further, that if the company had been an independent contractor it-would not exonerate the defendants, for where the contract calls for the-doing of things which are in their very nature liable unless precautions are taken to do injury to others, a duty arises on the part of the contractee to see to it that these precautions are taken and he cannot escape his duty-by turning over the whole performance to a contractor.</p> <p>(4) Negligence. Fireworks. Public Nuisance.</p> <p>Held, further, that in view of the facts of the case, showing that a large number-of bombs were so discharged that the debris came down on private property at a distance and where people were standing to watch the display and thatsevex-al bombs which failed to explode came down at a distance of upwards-of 500 feet from the display on private property and that one of such bombs-caused the injury complained of it was a question for the jury whether the display was in fact a nuisance liable to cause injury by reason of the manner in which it was conducted and as to the negligence of the defendants through their agents, the case being founded not on a nuisance per se where no negligence need be proved, but in permitting to be done acts in themselves-dangerous on account of the explosives requiring special precautions to prevent injury and in permitting bombs to be so discharged by their agents-as to fall upon private property while unexploded and there to remain without recovery until found by plaintiff.</p> <p> (5) Public Officers. </p> <p>Held, further, that the members of the general committee were in no sense “public officers.”</p> <p>(6) Negligence. Fireworks. Evidence.</p> <p>In an action for negligence arising out of a display of fireworks by a committee-having charge of the celebration, Q. “ as to that location from your experience as a member of the sub-committee on fireworks do you consider it a good ' location for setting off the fireworks ?” was objectionable since witness had not been qualified as an expert in fireworks displays, while he might have been asked what had been done in this lot on previous years and if he knew the nature of the previous displays by way of comparison and whether any previous damage had been done.</p> <p>(7) Negligence. Fireworks. Evidence.</p> <p>In an action for negligence arising out of a display of fireworks by a committee having charge of the celebration, evidence as to the financial responsibility of the company furnishing and firing the display for the committee, which company was not a party to the action was properly excluded.</p>

<p>Trespass on the Case for negligence.</p> <p>Vincent J., dissenting.</p>

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

<p>(I) Contract of Service. Personal Taste.</p> <p>Where a contract for services as a traveling salesman contains the provision that the salesman will perform the duties of his position in a satisfactory manner to the employer, the contract does not involve matters of personal taste or feeling but one where the employer undertook to act upon just and reasonable grounds and hence the adequacy of such grounds must be open to judicial investigation and determination.</p> <p> {%) Contract of Service. Reasonable Ground for Discharge. </p> <p>Upon the issue whether an employer acted upon just and reasonable grounds in the discharge of the servant, where the employer asked for a special finding as to one ground .of dissatisfaction, he does not thereby waive every other reason for dissatisfaction which might otherwise have been relied upon but is entitled to have the issue in the case submitted to the determination of the jury.</p> <p> (8) Contract of Service. Dismissal. Condonation. </p> <p>The retention of a salesman who had contracted to perform the duties of his position in a satisfactory manner to the employer in his employ after the employer had become dissatisfied for reasonable cause with the salesman’s services, would not constitute condonation so as to prevent the emplo/er from availing himself of such dissatisfaction as a ground for discharge at a later date, and no new cause of dissatisfaction need arise to give the employer the right to terminate the contract.</p> <p>(4) Contracts. Evidence. Hearsay.</p> <p>In an action by a salesman against his employer to recover salary, upon the issue whether defendant had reasonable cause to discharge plaintiff, letters offered by defendant from customers commenting unfavorably upon the conduct and bearing of plaintiff while in the employ of defendant, written after the discharge of plaintiff are inadmissible as hearsay.</p>

<p> (1) Voluntary Association as Express Trust for Business Purposes. </p> <p>An association organized and doing business under a declaration of trust, the beneficial interest under which is divided into transferable shares, the title to the property being in the trastees only who are given the most ample powers of management and control, and are prohibited from binding the shareholders personally; the shareholders not being liable for any assessment; persons contracting with the trustees being required to look to the fund and not to the trustees or stockholders; power being given the trustees to declare dividends, is in its nature a true trust and not a partnership, and the holders-of the “stock,” so-called, are not under individual and personal liability for any of the obligations or indebtedness of the trust.</p> <p>(0) Express Trust as Business Company. Liability of Trustee.</p> <p>A corporation named as executor and trustee of a decedent may hold shares in an express trust above described, without maldng itself liable, in its corporate capacity for any obligation or indebtedness of said trust.</p> <p> (S) Trusts. Investments. Advice to Trustee. </p> <p>In the absence of any investigation evidence or knowledge as to the desirability of the retention of such shares by a trustee under a will as a part of the trust fund, the court cannot instruct the trustee as to the course to be pursued, but will if required refer the matter to a master to investigate.</p>

<p>(I) Executory Limitations. Permanent Improvements. Apportionment.</p> <p>The residue of the estate of testator was devised to his son and his heirs qualified by the provision in this clause of the will (15) “If my wife and my younger daughter or either of them, survive my son and his descendants, then all the estate devised and bequeathed to him and his heir?, I give devise and bequeath-all the personal property to my elder daughter if she be then living or her descendants or if neither my elder daughter nor any of her descendants be then living, to my brother. All the real estate to my wife for life and after her decease to my elder daughter for life and after the decease of my wife 'and elder daughter if my younger daughter be not then living, to such oí my elder daughter’s descendants as shall then be living, their heirs and assigns, but if my younger daughter be then living, then to such of my elder daughter’s descendants as shall then be living, so long as my younger daughter shall live, and after her decease, to such of my elder daughter’s descendants as shall then be living, their heirs and assigns; if however my wife dies after the decease of my elder daughter and her descendants or .if my elder daughter survives my wife and leaves no descendants at her own decease or if my younger daughter survives my wife and my elder daughter and her descendants; then to my brother, his heirs and assigns.”</p> <p>At the time of the petition 'for instructions filed by the trustees appointed to exercise the powers given the executors who had deceased, the residue of the estate was vested in the infant children of the deceased son of testator, being a fee simple, subject to the payment of an annuity to the younger daughter of testator and the powers of sale, management, etc., given the executors, and also subject to the executory limitations specified in clause 15, above set out.</p> <p>The trustees under the powers of the will sold certain unimproved real estate and out of the proceeds have expended certain sums for sewer and curbing assessments and for grading and otherwise improving the real estate.</p> <p>Held, that the estate being subject to the executory limitation there was no way to value the respective interests, but the payment by the trustees of the cost of the permanent improvements out of funds realized from the sale of unproductive real estate was in itself an equitable apportionment of the assessment.</p> <p>Held, further, that the charges for curbing, sewers and grading should be paid out of the corpus of the estate.</p> <p>(0) Life Tenant and Remainderman. Apportionment of Improvements.</p> <p>It is settled in this State that the cost of permanent improvements should be apportioned between the life tenant and remainderman in the proportion which the value of the life estate-bears to the value of the entire estate.</p> <p>(8) Compensation of Trustees.</p> <p>•On the above state of facts it appeared that about three-quarters of the work of the trustees related to principal of the estate and one-quarter to the income. The will made no provision for compensation of trustees.</p> <p>Held, that there was no fixed rule which prevented trustee’s compensation being charged to principal if the circumstances warranted it and in most cases it rested in the discretion of the court.</p> <p>Held, further, that the'compensation of the trustees for making permanent improvements and for converting the real estate into personalty should be chargeable to principal and that the method of apportionment adopted by thé trustees in charging three-fourths of their compensation to principal and one-fourth'to income would be approved.</p> <p> (4) Commissions of Trustee on Income. Compensation. </p> <p>It is an open question in this' State, whether trustees accounting annually may deduct commissions properly chargeable to income and also whether if a trustee fails to deduct such commissions his rights to the same are thereby lost. There is no statute or decision in this State which determines the amount of compensation to which trustees are entitled.</p> <p> (5) Executory Limitations. Taxes. Unproductive Estate. </p> <p>•On the above facts held that the taxes assessed against the unproductive portion of the estate should be charged to principal.</p> <p> (6) Annuity. </p> <p>By the 5th clause of the will testator bequeathed to a daughter an annuity, and by the 13th clause the residue was made expressly subject to it.,</p> <p>Held, that it is a question of the intent of a testator as expressed in the will whether an annuity is payable out of one fund rather than another, and upon the facts of the case at bar the annuity should be paid from principal:</p> <p>•(7) Dower. Executory Limitations.</p> <p>A large amount of real estate, mostly unprdductive, became'vested in X under the will of his father, subject to various charges for taxes and assessments during a life estate; to annuities; to the power of the executors as to sale, etc., and to certain executory limitations.</p> <p>X died and the estate descended to his children. A portion of the estate was sold by the executors, the proceeds for a while being used for the payment of various charges, but gradually a fund was accumulated from such sales and invested in bonds, mortgages, etc.</p> <p>Held, that the widow of X could not claim dower either in the real estate sold or in the proceeds which had been expended.</p> <p>Held, further, that a widow was entitled to dower in an estate held by her husband in fee, but subject to executory limitations.</p> <p>Held, further, that as a dower right is subject to every lien or incumbrance at law or equity existing before it attaches, the charges placed upon the income and principal were superior to any right of dower of the widow of X, but as the will did not work a conversion of the real estate, under the rule that to effect a conversion it is necessary that the direction to sell the property should be mandatory and not discretionary, the widow was entitled to dower 'in the proceeds not' necessary to pay the enumerated charges, and also in the real estate unsold.</p> <p>But as to the unsold real estate the court can do no more than decree her right to such dower, there being no evidence of the value of such land and as dower is set off with regard both to quantity and value the court would be unable to make any assignment, but the widow will be entitled to dower in the proceeds of all sales that may be made of said real estate in the same manner as in the proceeds of past sales.</p> <p> (8) Dower. Equity. </p> <p>The Superior Court has jurisdiction of suits for dower under its general equity powers.</p> <p>(0) Gross Sum as Dower.</p> <p>Although there is no specific statutory authority for it, a widow may be awarded a gross sum as dower in the proceeds of the sales of land when the circumstances justify it, but upon the facts in the case at bar, owing to the annuity being a superior charge the widow will be allowed annually the legal interest on one-third of the total proceeds derived from the sale of the real estate, less the payment of the necessary charges and expenses for that year.</p>

<p>(1) Equity. Final Decree. Following Travel of Case. Certiorari.</p> <p>After decision in favor of complainant a form of final decree was presented for entry of which respondent had notice. Thereupon respondent moved for leave to reopen the cause and thereafter the court denied the motion and ordered the entry of the final decree previously presented.</p> <p>More than fourteen months later respondent moved that the decree “be vacated or entered as of such date as respondent may have notice,” on the ground that it was entered without notice to respondent. On certiorari'.</p> <p>Held, that the motion to reopen the cause and the entry of final decree in the circumstances of the case did not require a formal hearing or notice to respondent, nor could the acts of the justice in the premises be reviewed by certiorari, since it was the duty of respondent to follow the travel of the case, and if aggrieved by the decree to take appropriate appellate proceedings, nor was any duty imposed upon the clerk to notify respondent of the action of the court.</p> <p>Held, further, that the power of the court to set aside its decree was limited to six months after entry, and a final decree in equity could not be amended on motion after the expiration of a year from entry.</p> <p>($) Certiorari.</p> <p>Certiorari lies to .review the action of an inferior tribunal taken without jurisdiction or in excess of its jurisdiction, but not to correct errors in the exercise of jurisdiction. While the writ has been somewhat extended in this state by statute and by the decisions of the court for the purpose of carrying out the revisory and appellate power of the court under the constitution, its scope has never been extended to the consideration of alleged error for the correction of which other remedy is expressly provided.</p> <p> 48) Final Decree. Reopening Case. Certiorari. </p> <p>After decision and before entry of final decree whether or not a case may be reopened and further evidence pi’oduced is within the discretion of the justice presiding and his action cannot be reviewed by certiorari.</p> <p> 44) Equity. Appeal. Certiorari. </p> <p>A party aggrieved by final decree in equity has his remedy by appeal, and where appeal has been lost, certiorari will not lie for under Gen. Laws, cap. 297, § 3, the Supreme Court may on petition filed within one year after entry of final decree, allow an appeal to be taken, by a party who has failed to claim an appeal through accident, mistake, unforeseen cause or lack of evidence newly discovered.</p>

<p> (1) Criminal Law. Embezzlement. Constitutional Law. </p> <p>Gen. Laws, cap. 345, § 18, in providing that in prosecutions for embezzlement, it shall be sufficient to allege generally in the indictment an embezzlement, of mpney to a certain amount, without specifying any particulars, and that on the trial evidence may be given of any such embezzlement committed within six months next after the time stated in the indictment, and that it shall be sufficient to maintain the charge, to prove that any money, etc., of whatever amount was fraudulently embezzled, within said period of six months, is not obnoxious to Cons. R. I., Art. I, § 10, in that a defendant is not informed of the nature and cause of the accusation against him, and has no statutory means to demand as of right to be informed by bill of particulars or otherwise, nor is said section in violation of the “law of the land” clause of said Section 10, nor of the “dueprocess of law” clause of Cons. U. S., Art. XIV of amendments, Section 1. Nor is the question affected by the fact that Cons. R. I., Art. 1, § 7, provides that “no person shall be held to answer for a capital or other infamous crime unless on presentment or indictment by a grand jury.”</p> <p> (2) Criminal Pleading. Embezzlement. Constitutional Law. </p> <p>The constitution of this State requires no greater certainty in criminal pleading than the common law and perhaps less. Under Art. I, § 10, a defendant has- the right “to be informed of the nature and cause of tlje accusation,” but the technical precision of the common law rule is not exacted.</p> <p> (8) Criminal Law. Embezzlement. Constitutional Law. </p> <p>An indictment for embezzlement charging the offence with the same degree of particularity as is required in the common law crime of larceny does not violate the constitutional right of the accused “to be informed of the nature and cause of the accusation” because it does not in fact give the defendant notice of the day on which the offence was actually committed.</p> <p> (4) Criminal Pleading. Embezzlement. Constitutional Law. </p> <p>In an indictment for embezzlement under Gen. Laws, cap. 345, § 18, the chief modification authorized is founded on the provision that the crime may be alleged “without specifying any particulars of such embezzlement;” ’ no change is expressly made as to the mode of alleging the time of committing the offence and the State, if it intends to prove a single act, may do so on any date before the finding of the indictment, but as an accused may be convicted under such an indictment for the total amount embezzled daring the six months next after the time stated in the indictment, as one offence, he is entitled to be informed by bill of particulars or other specification whether the State will attempt to prove as the offence a single act or a series of takings. If a series of acts is specified the statute fixes the time within which proof of the offence may be offered, in this way having the same effect that the naming by a bill of particulars of the day of the commission of the crime has, when a single act is intended to be shown. Hence, so far as the allegation of time is concerned, a defendant is not, on an indictment under Chapter 345, § 18, deprived of any constitutional right to be informed of the nature and cause of the accusation against him which he would have had under the older form of indictment.</p> <p> (5) Criminal Law. Bills of Particulars. </p> <p>The object of a bill of particulars where the offence is charged in general terms is to give information which will be of service to the accused in preparing for trial, but it does not supply defects in the indictment. Such a bill of particulars may be ordered by the court by virtue of its general authority to regulate trials. The application is unless otherwise provided by statute, addressed to the judicial discretion and the court’s decision is not generally reviewable.</p> <p>Semble: That Gen. Laws, cap. 298, §§16 and 17, may provide a method of review by exception in case of abuse of judicial discretion in acting upon an application for a bill of particulars.</p> <p>(6) Indictment. Former Jeopardy.</p> <p>An indictment for embezzlement under Gen. Laws, cap. 345, § 18, which sets out the fiduciary relation between the defendant and the employer; that the property came into possession of defendant by virtue of his employment; that it belonged to the employer and defendant feloniously embezzled it without the consent of the employer; the value of the property; the place of embezzlement and the time, furnishes a sufficient foundation for a plea in bar of former jeopardy.</p>

<p>(1) Public Service Corporation. Water. Proper Charges.</p> <p>A corporation created for the purpose of supplying water for commercial and domestic purposes, entered into a contract with a town by which it acquired an exclusive privilege for a period of fifty years to use the streets for maintaining its pipes, such contract providing that the corporation would not, during the term, make any charge in excess of the rates established at the date of such contract. A customer in his application for water agreed to be bound by the corporation’s rules. When the contract was entered into between the company and the town certain flat rates were adopted, among them being a charge of $5 for a bathtub. In consequence of the secret use of water by customers the company adopted a rule some years after the making of the contract, providing that no deduction would be made for fixtures claimed to be unused, but every fixture used or not would be deemed used and so charged for so long as it remained connected with the water pipe or waste pipe.</p> <p>Plaintiff had on his premises two bathtubs connected with the sewerage system, but with no faucet supplying water directly from the company’s system. Plaintiff admitted the tubs had been used. Plaintiff refusing to pay the charge for the tubs, the company threatened to cut off his supply and on bill in equity for injunction:—</p> <p>Held, that the rule did not work an increase in the charge for water in excess of the rate established under the contract with the town, since it amounted merely to notice that the company intended to enforce a rate already existing and in force when the contract was made, and the fact that the company had for some time waived its right to charge this rate in cases where the customer had cut off the direct supply to the tubs, imposed no obligation on the company to continue such practice.</p> <p>Held, further, that the rule was a reasonable one.</p> <p> (2) Water. Public Service Corporation. </p> <p>A public service corporation supplying water to the inhabitants of a town has the right to cut off a water supply for non-payment of proper charges.</p>

<p>Bill in Equity.</p>

<p>(1) Supplemental Proceedings. Return of Execution.</p> <p>A plaintiff is not precluded from resorting to the supplemental relief provided by Chapter 1228 of the Public Laws by reason of the return nulla bona of the execution before the return day named thereon.</p> <p>Semble: That a different rule applies as to the return of an execution nulla bona prior to the date named for its return in suits against bail or a garnishee, than in an action against the principal defendant.</p>

<p>(1) Statute of Frauds. Oral Contracts.</p> <p>An oral contract for the sale of land is not utterly void by the statute of frauds, and one who advances money on such a contract may recover it back if the other party is unable or unwilling to perform the contract on his part.</p> <p> (%) Contracts. </p> <p>X entered into an oral contract with defendant for the sale by defendant of two lots of land for $150, a deed for one lot to be delivered to S, and a • deed of the other lot to plaintiff. X sent $75 to defendant through S, and one lot was conveyed to S. Plaintiff sent to defendant $25 as a payment on the second lot, and X sent defendant $47.50, leaving a balance of $2.50 to complete the transaction.</p> <p>Later X brought an action against defendant to recover $147.50, and recovered a verdict for $47.50 and execution was satisfied. Plaintiff later brought suit to recover $72.50 from defendant. It appeared that at one time plaintiff having been requested by defendant to pay the balance and take a deed of the lot refused to do so, but during the trial of the action of X against defendant, defendant expressed his willingness to accept the payment from plaintiff and deliver the deed, but after X obtained judgment defendant refused to deliver the deed on tender of that amount, by the plaintiff.</p> <p>Held, that defendant could not rely on any prior default on the part of plaintiff, but the recovery by X from defendant having changed the conditions, plaintiff could recover the amount paid by her, from defendant.</p> <p>Held, further, that as plaintiff was not a party to the action by X, did not testify therein and was not present at the trial, although summoned on a previous occasion as a witness, and as it appeared that the verdict of X only covered what he had advanced himself, plaintiff was not estopped from prosecuting her action to the extent of the $25 she advanced.</p>

<p>(1) Equity. Mutual Mistake. Leases. Reformation.</p> <p>Upon the issue as to whether lessor under two written leases was entitled to have the leases reformed so as to require the lessee to pay the taxes assessed upon the leased estate in addition to the amount of rental fixed in the lease, lessor claiming that such a covenant was omitted by mutual mistake, evidence considered and relief granted.</p> <p> (8) Equity. Mutual Mistake. Reformation of Lease. </p> <p>While equity can only afford relief in cases of mutual mistake, yet where both parties to a lease have apparently assumed and acted upon the assumption for a period of ten years that it provided for the payment of taxes on the part of lessee, it cannot be said that the mistake is other than mutual.</p> <p> (8) Leases. Net Rental. </p> <p>The term “net rental” as used in respect to real estate means a sum over and above all expenses.</p> <p> (4) Leases. Reformation. Mistake. </p> <p>Mere neglect or omission to know the contents of a prior written lease of property for a period of ten years before execution of a new lease for a second term following the form of the prior lease, is not necessarily a bar to relief if the instruments through mistake fail to accomplish the purpose intended.</p> <p>(,5) Leases. Reformation. Mistake.</p> <p>Where both parties to a lease evidently assumed that they were acting in accordance with the lease in the payment and receipt of taxes and for nearly ten years nothing arose to suggest to lessor an examination of the lease, the fact that lessor directed the preparation of a new lease in the same form as the previous lease, the latter having apparently effected the payment of taxes by the lessee, does not amount to such negligence as to debar-lessor from the reformation of the lease to provide for the payment of taxes by lessee, where it does not appear that it would work any prejudice tO' lessee.</p> <p> (6) Leases. Reformation. Mistake. </p> <p>WTiere lessee brought suit against lessor to recover the amount of taxes claimed to have been paid under mistake, lessor is entitled upon presentation of facts warranting such action, to a reformation of the lease, as a necessary defence to the action, although the term of the lease has expired.</p> <p>(7) Equity. Reformation. Mutual Mistake.</p> <p>Relief in equity may be granted on the ground of mistake not only when the-mistake is expressly proved, but also when it is implied from the nature of the transaction.</p> <p> (8) Equity Pleading. Information and, Belief. </p> <p>Where positive averments were made upon information and belief, allegations in a bill setting out the transaction between the parties, their respective relations with each other, and the common attitude which both maintained for ten years toward the matter; the amount of rent suggestive of a. percentage upon some valuation of the property; the payment of the taxes by lessee and demand for same by lessor, clearly indicating an original agreement to the effect that, taxes were to be paid by lessee and that both parties must have assumed that such agreement was embodied in the lease, furnish sufficient facts to constitute the basis of the information.</p> <p> (9) Equity. Alternative Relief. Multifariousness. </p> <p>Where two leases related to the same premises and the same questions were raised in respect to each, the second being practically a continuation of the-first, the first having expired, while lessor could not ask for its cancellation he could seek its reformation to make it a defence to an action by lessee, but the second lease being in force, lessor could ask for relief in the alternative, either that it be reformed or cancelled, and the objection of multifariousness does not apply where the causes of action arise out of the same transaction or series of transactions forming one course of dealing and tending to one end.</p> <p> (10) Estoppel. </p> <p>A verdict and judgment are conclusive by way of estoppel only as to those facts which were necessarily involved in them, without the existence and proof of which such verdict and judgment could not have been rendered, and the court must ascertain when a judgment in a former action is pleaded in bar, precisely what was judicially settled in the former action and what was the cause of that action and the cause of the action to be tried.</p>

<p> (1) Police Officers. Removal. </p> <p>'The powers of the Board of Police Commissioners of the city of Woonsocket under Chapter 661, Public Laws, 1911, as amended by Chapter 902, Public Laws, 1912, so far as they relate to the removal or suspension of police .officers are the same as the powers which were originally conferred upon and •vested in the board of aldermen by the charter of that city, cap. 775, Pub. ;Laws, passed May 1, 1900, amending clause 2, § 4, Chapter 728, Public Laws, 1888.</p> <p>ÍUnder these acts the Board of Police Commissioners has no power to remove a police officer except upon charges in writing of which he shall have notice and-upon which he shall have an opportunity to be heard.</p> <p> <{2) Police Officers. Removal. </p> <p>The Board of Police Commissioners of the city of Woonsocket is authorized by the act creating it “to make all needful rules and regulations” for the efficiency, management and direction of the police department not inconsistent -with the laws of the State. In pursuance of such authority the Board .adopted rules relating to charges against and trials of police officers. Such ' rules provided for notice, charges and specifications and a trial and for various penalties upon conviction of certain offences. An officer was suspended for 30 days with loss of pay, without notice to him of any charges and an opportunity to meet them.</p> <p>Held, that these rules set forth in part the conditions of a police officer’s employment upon which he might rightfully rely in ,the continuation of his service.</p> <p>Held, further, that the proceeding against an officer was judicial in character, because the power to hear and determine is to be exercised only after notice and a hearing on the merits, and the officer is recognized as having a right in his office of which he cannot be deprived except for proper cause ascertained by a proceeding judicial both in its form and in its consequence.</p>

<p> {!) Workmen’s Compensation Act. Construction. </p> <p>The Workmen’s Compensation Act is of a remedial character and its provisions should be construed broadly and liberally in order to effectuate their purpose.</p> <p> (2) Workmen’s Compensation Act. Notice. </p> <p>The Workmen’s Compensation Act provides that no proceedings for compensation shall be maintained unless written notice of the injury shall be given to the employer within 30 days after the happening thereof, but excuses the failure to give such notice among other things if such failure is due to “accident, mistake or unforeseen cause.”</p> <p>During the thirty days after his injury petitioner was very ill and underwent a serious surgical operation and a part of the time was in extremis and not allowed to talk; during the last 23 of the 30 days he was in a hospital among strangers in a city at a considerable distance from his home and from the place of business of respondent, unable to do any writing or attend to any business and unable to give the written notice himself. When after the expiration of the 30 days he was removed to his home his condition was still so weak that he was unable to walk or attend to any business and was partly confined to his bed for a considerable period.</p> <p>Held, that the facts presented a case of “accident or unforeseen cause,” excusing the failure to give the notice within the statutory period. Vincent, J., dissenting.</p> <p> (3) Construction of Statutes. “Accident, Mistake or Unforeseen Cause.” </p> <p>If in statutes of the nature of the Workmen’s Compensation Act there is a provision requiring notice of the injury to the employer within a certain fixed period, and nothing more, the court of necessity is bound to hold that notice within the prescribed time is imperative and amounts to a condition precedent to the maintenance of proceedings, but if the statute itself provides relief for failure to give such notice for reasons which seem equitable to the legislature, thep. such remedial provisions should be broadly and liberally construed to effectuate the main purpose of such legislation.</p> <p> (4) Workmen’s Compensation Act. “ Accident or Unforeseen Cause.” Notice. </p> <p>Not every accident or unforeseen cause however slight will amount to an excuse for failure to give the notice of the injury required by the act, but it must be such as would amount to a reasonable cause for the failure to give notice.</p> <p> (5) Accident and Mistake. </p> <p>It has not been the practice of the court in statutes providingforrelief on account of “accident, mistake or unforeseen cause,” to give these words a strict and uniform construction, but the court has applied this provision for relief in a liberal manner and has regarded them as broad and general words used in remedial statutes which enable the court within reasonable limits to grant relief from hardship and substantial misfortune whenever in the discretion of the court the circumstances of the particular case warrant such action.</p> <p> (6) Accident and Mistake. Questions of Law and Fact. </p> <p>Whether certain circumstances present a case of accident, mistake and unforeseen cause is a question of law, but whether such circumstances exist in a particular case is a question of fact. Mental or physical disability which prevents one from protecting his rights is generally held to amount in law to accident or unforeseen cause, but whether the circumstances show such a condition is a question for the court considering the case, to be determined upon the facts in evidence, viewed in the light of the court’s experience: and the conclusion of the court thereon in a petition under the Workmen’s Compensation Act is a finding of fact, which in the absence of fraud is conclusive and not reviewable.</p>

<p>(1) New Trial. Newly Discovered Evidence.</p> <p>If the newly discovered evidence would be likely to change the verdict a new trial will be granted, even though the evidence might be merely cumulative.</p> <p> (Z) New Trial. Newly Discovered Evidence. Cumulative Evidence. </p> <p>In an action to recover for the death of intestate caused by a runaway horse,the runaway character of the horse and. its viciousness was a material issue, but there was no evidence at the trial on the runaway character of the horse, but after verdict for defendant plaintiff petitioned for new trial for newly discovered evidence, showing that the horse had previously run away and had the reputation of a runaway. At the trial plaintiff brought out in cross examination of one of defendant’s witnesses that the horse shied and got frightened at times.</p> <p>Held, that the evidence was not cumulative, but even if it was cumulative of that of the witness brought out in cross examination it would not be a reason to refuse a new trial, for the fact that newly discovered evidence is cumulative of evidence incidentally favorable to the unsuccessful party drawn out in cross examination of an adversary witness is no reason for refusing a new trial.</p> <p> (8) New Trial. Newly Discovered Evidence. Due Diligence. </p> <p>.If a party fails to question or examine a person known to have information on a subject as to which evidence is desired, or in such a position that he would naturally have such information it is no excuse for such failure that the person is unwilling to talk or is believed to be hostile.</p> <p> (4) New Trial. Newly Discovered Evidence. Due Diligence. </p> <p>'Filing a bill of discovery or taking the depositions of the officers and employees of the opposing party cannot be regarded as conditions precedent to the showing of due diligence in procuring evidence so as to preclude the court from finding due diligence has been shown by the efforts set forth in affidavits submitted on a motion for a new trial on the ground of newly discovered evidence.</p> <p>(5) New Trial. Reasons of Court.</p> <p>If a court followed the correct rule in making its decision on a motion for new trial, it is immaterial what rule it considered in its discussion, and did not follow.</p>

<p> (1) Trial. </p> <p>Where in an action .on a written agreement, both parties were permitted without objection to testify as to conversations held both before and after the agreement was made, with reference as to what was expected to be accomplished, the case was properly submitted to the jury upon the contract and all the evidence in explanation thereof.</p> <p> (8) Trial. Charge of Court. </p> <p>A charge to which there is no exception is the law of the case.</p> <p>(3) Contracts. “Satisfaction.”</p> <p>An agreement to paint a house to the “entire satisfaction” of the owner, means a “reasonable satisfaction.”</p>

<p>(1) Report of Master.</p> <p>Where under the remanding order of the court, the Superior Court was directed to proceed by itself or through a master to determine the value of a building and improvements, on the termination of a lease and the master was directed to determine and state the sound value of such building and improvements, and it appeared that the findings of the master were made in accordance with directions set out in a previous decision of the court, the report is not objectionable because he failed to show the constituent items of reproduction cost, depreciation and sound value found by him, where the decree did not make it his duty to render such report.</p> <p> (%) Findings of Fact. </p> <p>In the absence of special provision of law or of reference, a tribunal should return its findings upon the ultimate facts of a controversy, not upon each evidentiary fact.</p> <p> (8) Master in Chancery. Review of Report. </p> <p>In reviewing the report of a master, the question is as to the correctness of his determination in the light of the evidence and not as it may be judged by a consideration of the steps by which he reached his conclusion.</p> <p> (4) Lease. Landlord and Tenant. Improvements. </p> <p>Where a lease provided that lessor should at the end of the term purchase the buildings and improvements which should be erected by lessee, his executors, administrators and assigns, upon the premises, lessee is entitled to be compensated for the value of improvements erected by under-tenants, not because under-tenants are assignees of the lease, but because such improvements became a part of the building and must be regarded as improvements erected by lessee and the fact that such improvements were made by the under-tenants at their own expense is immaterial.</p> <p>(5) Report of Master'.</p> <p>A report of a master is not objectionable because he refused to make special findings of fact, where the decree of reference did not make it his duty to do so.</p> <p>(6) Stipulations.</p> <p>Where after consultation between counsel a stipulation was read into the record by counsel upon one side without objection by opposing counsel, and hearings were had upon the assumption by the master that it had been assented to and later the record was revised by counsel without objection as to the stipulation, a finding that the stipulation was assented to and bound the parties was proper.</p> <p> (7) Master in Chancery. Findings of Fact. </p> <p>The determination of a master upon questions of fact has a strong presumption in its favor and should not be set aside unless it clearly appears that the master has erred.</p>

<p>(1) Evidence. Cross Examination of Witness on Immaterial Evidence.</p> <p>Upon cross examination of a witness he may be examined as to all matters brought out by the examination in chief, although irrelevant or immaterial, for the purpose of contradicting him.</p> <p>Where evidence has been brought out on the direct examination of a witness prejudicial to the opposite party, the party introducing such evidence cannot object to the contradiction of the testimony or to the impeachment of the witness on the ground that the evidence is inadmissible collateral or immaterial.</p>

<p> (1) Mandamus. Executions. </p> <p>The issuing of a writ of mandamus is discretionary and where a clerk of a court is uncertain as to the legal right of a party to have an execution and refuses to issue it, the better practice is first to apply to the court from which the execution issues to direct its officer, before applying in an Appellate Court for mandamus, and while in an ordinary case a petition for mandamus would be refused before such preliminary application had been made and refused, this will not be required where it appears that it would serve no purpose to require the petitioner to make such formal motion.</p> <p> (8) Executions. </p> <p>Under Gen. Laws, 1909, cap. 326, § 23, “Neither the commitment of the prisoner nor his discharge shall be a satisfaction of the debt for which he was committed. If committed on execution the plaintiff may take out another execution which shall not, however, run against the body of the defendant,” where a judgment debtor is committed for want of goods, etc., to satisfy the execution, the judgment creditor is entitled during such commitment to another execution to run against the goods, chattels and real estate of the defendant.</p> <p> (S') Executions. </p> <p>The fact that the provision of Gen. Laws, 1909, cap. 326, § 23, relative to the issuance of an alias execution to a judgment creditor during the continuance of the commitment of the judgment debtor, is found in the chapter “Of the relief of poor debtors,” does not restrict its construction, since the language is general and warrants a general application.</p>

<p>,(!) Equitable Liens. Life Tenant and Remainder Man.</p> <p>Testator devised his estate to his wife for life “for her sole support and com- ' fort, and I direct that she may not be accountable to any one for the expenditure of the same,” with remainder over. Complainant under contract with the life tenant performed work and labor and furnished materials over a period of two years on the real estate. On bill in equity to establish a lien against the remainder-man:—</p> <p>Held, that it did not appear that any real “improvement” of the estate was made which inured to the benefit of the remainder-man, but the work was apparently incident to the ordinary acts of the life tenant for her sole convenience.</p> <p>.Held, further, that as the life tenant had not seen fit to encumber the estate under the power for complainant’s benefit and there was nothing to show :any equitable consideration between complainant and the remainder-man .and complainant was put on notice of her recorded title, he was not entitled to a lien upon the estate.</p>

<p> (1) Workmen’s Compensation Act. Injuries Outside the Jurisdiction. </p> <p>Under the Workmen’s Compensation Act the relation of employer and employee is contractual and the terms of the act are to be read as a part of every contract of service between those subject to its terms. It includes injuries arising out of the State as well as those arising within it.</p>

<p>(1) Mortgage Sales. Constructive Notice of Defects.</p> <p>A purchaser at a mortgage sale under a power is chargeable with notice of defects and irregularities attending the sale and with knowledge as to whether proper notice was given and whether it was made at the time and in the manner required by the power; therefore, if with actual or constructive notice of the invalidity of the proposed sale, one incurs expense as a possible purchaser, he alone is responsible for such expense and for any loss in consequence.</p> <p>Semble: That if a mortgage contained the clause that the purchaser should not be bound to inquire into the regularity of the proceedings, he might maintain an action for damages for injuries sustained by an irregular sale.</p>

<p><1) Condemnation Proceedings. Probate Law. Right of Purchaser from Executor to Claim Under Condemnation Proceedings.</p> <p>A tract of land was devised to various devisees and pending the settlement of the estate a portion of the tract was taken under condemnation proceedings and the devisees filed their claim for damages. Later the probate court authorized the executor to sell “all the right, title and interest which the deceased had at the time of his death” in the tract and the land taken by-condemnation was not excepted or referred to. Thereafter the executor conveyed to the purchaser “all the right, title and interest” which testator at the time of his decease had in said tract, not excepting or referring to the land taken.</p> <p>Held, that while the damages should be treated as land and held to stand in the place of the land as it was owned when taken for the purpose of determining to whom the money should be paid, the claim, for damages was not land and did not pass under the deed purporting to convey solely a right, title and interest in land.</p> <p>Held, further, that the probate court in directing the sale of all the interest which testator had in the land at the time of his death exceeded its power, since a portion of the tract had been taken by paramount authority and the executor’s power was restricted to thelawful authority givenhim. Neither would the claim for damages pass to the purchaser under the language of the deed for in no sense was it a part of the interest of testator in the land at the time of his death.</p> <p>(2) Probate Law. Reaching Claim Under Condemnation Proceedings for • Purpose of Paying Debts of Deceased.</p> <p>Without deciding whether a probatg court can reach a claim for damages under condemnation proceedings, or follow the amount of damages when paid to the heir or devisee and malee it available for the payment óf debts, equity furnishes a procedure for rendering such aclaim and the damages when ascertained and paid, available for the payment of the debts of deceased.</p>

<p> il) Prohibition. </p> <p>'The office of a writ of prohibition is to restrain inferior tribunals from the exercise of judicial acts and not to prohibit the action of ministerial officers. Hence, such a writ will not issue to restrain a mayor and chief of police of a city from the enforcement of an ordinance.</p> <p> ip) Construction of Statutes. </p> <p>In the construction of the different provisions of a statute the court should, if practicable, make such a construction as will cause them to be consistent with each other and give to each a reasonable intent.</p> <p>(8) Construction of Statutes.</p> <p>In passing upon tho validity of an ordinance of a city enacted under authority of a public statute which confers the licensing power at the discretion of a public official it is not to be assumed that such official in exercising such power will act arbitrarily or otherwise than in the exercise of a sound discretion.</p> <p> (4) Licenses of Motor Buses. </p> <p>An ordinance of the city of Pawtucket, adopted under the authority of Pub. Laws, 1263, approved April 24, 1915, which requires a person operating a motor bus to first obtain a license from the city clerk, who is authorized to-grant such licenses upon the approvaj of the chief of police to persons deemed suitable to conduct such business, is valid.</p>

<p>(1) Statute of Frauds. Sales. Custom.</p> <p>Whatever may have been the conduct of a buyer, in respect to waiving the defence of the statute of frauds as to past contracts of sale between the parties, and whatever may have been the conduct of others in the same trade in conducting their transactions orally without regard to the statutes of frauds of the various states, a buyer is not thereby precluded from interposing this defence as to any specific transaction.</p>

<p> (1) Probate Appeal. Wills. Best Evidence. </p> <p>In an appeal from a decree of a probate court admitting a will to probate where appellee endeavored to establish that testatrix was dissatisfied with the management by appellant of his father’s estate, in order to explain certain provisions of the will, appellant was properly permitted to show facts in relation to his settlement and distribution of the estate of his father, although no order of distribution had been entered by the probate court.</p> <p>(2) Probate Appeal. Special Findings.</p> <p>Reasons of appeal from the probate of a will upon which the appeal was tried, included as one ground that the will was procured to be made by undue influence upon testatrix by X by Y by Z, and others. At the trial appellee requested a special finding on the question by whom such undue influence was exerted, which was denied. The jury found specially that testatrix was unduly influenced.</p> <p>Held, that the special finding requested should have been submitted to the jury, but in view of the fact that the jury also found that testatrix did not have testamentary capacity, the refusal did not constitute reversible error.</p>

<p>(1) Wills. Equitable Conversion.</p> <p>A will named no executor and an administrator c. t. a. was appointed. The will bequeathed to various nephews the sum of $100 “from Garfield Avenue estate to be put in trust at interest until full age, 21 years,” and by clause 12 “After paying all my expenses what money is left, if any there be, one-third goes to X, one-third to Y, and one-third to Z.”</p> <p>Held, that the legacies were not to be paid from the rents and profits of the-real estate, but testator intended that such estate should be converted into money and it would be regarded as equitably so converted.</p> <p>Held, further, that the administrator c. t. a. did not have the power under the-will to use the surplus, of the personal property for the payment of the-legacies.</p> <p>Held, further, that anything remaining of the proceeds of the sale of the real estate after the payment of the legacies would pass under paragraph 12, being in effect a residuary clause.</p> <p>(#) Executors and Administrators. Powers.</p> <p>Where a will named no executor, an administrator c. t. a. cannot virtut& officii make a sale of real estate required by the will, although the will contained no express direction to sell, but had the will named an executor, such executor would have had the power by implication.</p> <p> (8) Executors and Administrators. Powers. </p> <p>While by Section 26 of Chapter 312 of the General Laws, as administrator with the will annexed, takes the same power to sell real estate as is given by the will to the executor, unless the power is given to the executor as an individual, yet where no executor is appointed by the will the administrator takes no power by virtue of the statute, nor by implication.</p> <p> (4) Wills. Power'of Sale. </p> <p>Where a will contained no express direction to sell the real estate and named no executor, but in order to carry out the provisions of the will relative to the payment of legacies, it was an absolute necessity to sell the real estate, such power of sale is not a naked power, but a power coupled with a trust, and hence imperative and the beneficiaries may through the Superior Court procure the sale of the real estate.</p>

<p> (1) Poor Debtor’s Oath. Withdrawal of Petition. </p> <p>Where a defendant committed on original writ has petitioned to be allowed to take the poor debtor’s oath, his failure to appear at the time and place named in the citation, when it was impossible for him to appear unless brought there upon a habeas corpus which it was the duty of the justice to issue under the statute Gen. Laws, 1909, cap. 327, § 6, cannot be regarded as a withdrawal of the citation and hence a second citation is not prohibited by Gen. Laws, 1909, cap. 326, § 11.</p>

<p>(1) Certiorari.</p> <p>In certiorari the court will not consider the.evidence in the matter sought to be reviewed, for the purpose of passing upon the preponderance of the evidence or reviewing the findings of fact, but ordinarily will consider the evidence below for no purpose except to determine whether the inferior tribunal had jurisdiction in the premises, or whether there was any competent evidence before it to support its findings, or whether its rulings upon the admission of evidence were correct, when the circumstances appear to require a review of such rulings.</p> <p> (2) Certiorari. Intoxicating Liquors. Revocation of Licence. </p> <p>Under Gen. Laws, 1909, cap. 123, § 12, relative to revocation of a license for the sale of intoxicating liquors for certain causes, it is immaterial whether the licensee is summoned before the town council because of facts which have come to the knowledge of the council through their own investigation, or through charges made by others. If the licensee is duly summoned and informed of the charges against him a legal basis is furnished for the proceedings before the council.</p> <p> (3) Certiorari. Intoxicating Liquors. Charges. </p> <p>A complaint against a licensed liquor dealer charging him with permitting and allowing unlawful games of chance to be carried on in the licensed premises, during the term of the license, without specifying the particular days, is sufficient where accused went to hearing without objection or a request for specification as to the time.</p> <p>(4) Certiorari. Intoxicating Liquors. Charges.</p> <p>A license to sell intoxicating liquors shall be revoked if during its term, the licensee shall permit the laws of the State to be violated in the licensed premises, although such violation occurs on a Sunday or on some other day when by law he is prohibited from selling under his license.</p>

<p> (1) Negligence. Res Ipsa Loquitur. </p> <p>Plaintiff in stepping off a sidewalk in the rear of a team standing beside the curb was struck in the back and injured. It appeared that the movement of the team backward was practically simultaneous with plaintiff’s act in stepping from the sidewalk; that this movement was initiated by one of the horses starting forward as the driver placed one foot on the cross bar preparatory to mounting to his seat. There was no evidence that the driver did or said anything to make the horses move backward, nor any evidence of negligence on his part by any act of omission, as failing to guard against a movement which he had reason to expect or anticipate.</p> <p>The declaration charged the driver with negligence in carelessly, negligently and unskillfully managing, controlling and driving the team.</p> <p>Held, that upon the declaration and evidence, a verdict should have been directed for defendant, since it appeared the accident was the result of a voluntary unlooked for movement of the horses backward.</p> <p>Held, further, that on the facts the doctrine of res ipsa loquitur had no application, since the attendant circumstances did not create a presumption of negligence on the part of defendant.</p>

<p> {!) Pleading. Common Counts. </p> <p>A provision in a contract for a sliding scale of charges proportioned to the advertising space used in the year when the contract was in force, does not take the case out of the general rule that when a contract has been fully executed and nothing remains to be done but payment of the price agreed on, the plaintiff may declare specially on the contract or rely on the common counts, for at the expiration of the year nothing remained to be done but to compute the amount due in accordance with the rates originally agreed upon and to pay the same.</p> <p> ($) Contracts. Commissions. Public Policy. </p> <p>Where it appeared that a newspaper was accustomed to allow advertising agents a discount on its established rates, for advertisements, but would not allow such discount to an employee of another newspaper, and plaintiff employed by another newspaper in order to obtain some compensation for his services as an advertising agent arranged with an advertising agency with which he already had had business dealings to place this advertising for him at the rates agreed upon, sharing the discount with the agency, the transaction was not fraudulent or contrary to public policy, and defendant for whom the advertising was inserted in accordance with the original contract made by it with the plaintiff is liable for the amount due under such contract.</p>

<p> (1) Contracts. Qommissions. Fraud. </p> <p>It appeared that a newspaper was accustomed to allow advertising agents a discount on its established rates, for advertisements, but would not allow such discount to an employee of another newspaper, and plaintiff, employed by another newspaper, entered into a contract with defendants to procure certain advertising for them under the special open space rates of the newspaper. Plaintiff testified that defendants, as local dealers, could not have obtained these rates, but that he personally could have placed the contract, but had it placed through an advertising agency in order to get part of the commission.</p> <p>Held, that even if in the making of the contract with the newspaper there were such misrepresentation (of which there was no evidence), by the agency, as to entitle the newspaper to maintain an action of deceit against the agency, this would not affect the liability of defendants on their con-, tract with plaintiff as there was no suggestion that it was within the contemplation of either party to carry it out by fraudulent means.</p>

<p>(1) Negligence. Due Care.</p> <p>A person standing at noonday on a country highway examining the wheel of a vehicle on which he has been riding with ten feet of the roadway between-him and the edge of the sidewalk and an unobstructed view of the vehicle for at least 350 feet, is not required to guard against being run down by an automobile and cannot be said to be negligent as a matter of law.</p> <p> (2) Negligence. Due Care. Requests to Charge. </p> <p>In a personal injury action, where plaintiff who was standing on a country highway at noonday examining the wheel of a vehicle on which he had been riding with ten feet of the roadway between him and the edge of the sidewalk and an unobstructed view of the vehicle for at least 350 feet, was struck by the automobile of defendant, upon sharply conflicting evidence, requests to charge — -1, that the doctrine of last clear chance had no application unless it was found as a fact that defendant’s driver actually saw the plaintiff in time to avoid striking him, and 2, that in determining the centre line of the road the measurements were to be taken from the extreme side of the road and the space occupied by the car tracks was not to be excluded from the measurements, — -were refused on the ground that they were not called for by the evidence and would probably lead to more confusion than they would be of benefit.</p> <p>Held, no error.</p>

<p>(1) Junk Dealers. Notice. Remonstrance.</p> <p>By clause 3, See. 4, Cap. 1421, Public Laws, 1895, the board of aldermen of the city of Central Falls is empowered to license “the keeping and dealing in junk.”</p> <p>General Laws, 1909, Cap. 197, Sec. 2, provides that no license shall be granted to the keeper of any junk shop in any location not occupied for such purpose at the time of the application, where remonstrance is made by the owners or occupants of the greater part of the land within 200 feet of the building.</p> <p>Held, that by implication, notice to such owners or occupants was necessary before the licensing board could lawfully grant such license.</p> <p>(#) Certiorari.</p> <p>On certiorari, where it appears that a petition.for a junk license was filed November 6 and granted by the licensing board on the same day, but it does not appear from the record whether the location was a place not occupied at that time as a junk shop, or whether any notice of the pendency of the petition was given, evidence will be received as to the jurisdiction of the inferior tribunal. .</p>

<p>(1) Highways and Bridges. State Board of Public Roads. Negligence.</p> <p>Warwick Avenue, from the Providence city line, to Spencer’s Corner, in Warwick, was included in and became a part of the State highway system under resolution 80, Acts of 1908. Located in Warwick Avenue within such portion is the Silver Hook Bridge. That portion of the highway between the bridge and Spencer’s Corner was rebuilt by the State in 1912, under the supervision of the State Board of Public Roads, but the other portion between the bridge and the Providence city line had never been rebuilt, repaired or worked upon under the supervision of said board prior to the date of an accident to plaintiff on Silver Hook Bridge.</p> <p>Held, that the two portions of Warwick Avenue upon either side of the bridge formed a continuous highway in which lies the Silver Hook Bridge, and work upon one part must be regarded as work upon the whole (and the bridge therefore having come under the control of the Board, under Public Laws, Cap. 846,1912, Sec. 1), and work having been done on the highway by said board prior to the accident, the city of Cranston could not be held responsible for the defective condition of the bridge.</p>

<p>Bill in Equity seeking injunction against encroachment on highway.</p>

<p>(1) Mandamus.</p> <p>The writ of mandamus is prerogative in its character and its issuance is discretionary, and it will not be ordered when in the opinion of the court it will operate unjustly.</p> <p> {$) Mandamus. Corporations. Adversary Interests. </p> <p>Petitioner who was the president and a director of respondent corporation, asked for a writ of mandamus to compel the corporation and certain of its' officers to allow him to inspect the books and correspondence of the corporation. Respondents consented except as to correspondence relating to litigation between the respondent corporation and the petitioner.</p> <p>Held, that it would be unjust to compel the respondents to submit the correspondence which had passed between the corporation and its officers and attorneys, relative to the conduct of the litigation, to the petitioner who had become an adversary party to it.</p> <p>(S) Mandamus.</p> <p>Where the court has issued a writ of mandamus directing the inspection of books and papers with certain exceptions, it will not assume that the respondent will not strictly comply with the mandate and refer the cause to-a master to determine what books and papers are within the order.</p>

<p>(1) Certiorari. Exceptions. Allowance of Cost of Transcript.</p> <p>Where a party has taken the proper statutory steps for bringing a case before the Supreme Court on exceptions, and thereafter withdraws such exceptions and the case is remitted to the Superior Court, the transcript of the testimony was actually used in proceedings subsequent both to the trial and to the delivery of the transcript to the party, and under Gen. Laws, 1909, cap. 278, § 3, in such circumstances the allowance of the cost of the transcript as part of the taxed costs is discretionary with the Superior Court.</p> <p>(0) Certiorari. Costs.</p> <p>On certiorari by a defendant to review the action of the Superior Court in taxing costs, where the record does not disclose, as alleged by the defendant, that the plaintiff withdrew his exceptions as part of an oral agreement that judgment was to be entered for a sum less than the amount called for by the execution, the matter cannot be considered under these proceedings.</p> <p>(§) Certiorari. Costs.</p> <p>On certiorari by a defendant to review the action of the Superior Court in taxing costs, as the inquiry is limited to the particular alleged error of law in the record complained of in the petition, the court cannot consider the plaintiff’s claim that the court also erred in not allowing him interest on his costs.</p>

<p>(1) Negligence. Unlicensed Driver of Motor Vehicle.</p> <p>The fact that plaintiff at the time of the accident had no license to drive a motorcycle on the highway cannot be set up as a defence against a claim for damage resulting from a collision with the automobile of defendant.</p>

<p>(1) Contracts. Evidence.</p> <p>In an action to recover for refusal of defendant to accept and pay for three carloads of flour, where plaintiff had elicited from his agent in direct examination that defendant had refused to receive the second and third carloads and that the price of flour had gone down between the date of contract and the time when defendant refused to receive any more flour thereunder, it was error not to permit defendant on cross-examination to inquire of the agent what defendant said as to results obtained from use of the flour when witness called upon him subsequent to delivery of the first carload.</p> <p>(£) Depositions. Naming Witnesses in Citation.</p> <p>Under Gen. Laws, 1909, cap. 292, § 26, the names of the proposed deponents must be set out in the citation served upon the adverse party or his attorney of record relative to depositions to be taken without the State.</p> <p>(S) Evidence. Beading Portions of Documents.</p> <p>Where a party has offered papers in their entirety without making any attempt to reserve any portion thereof, but reads only a portion of such papers to the jury, he cannot deprive the adverse party of the benefit of other portions if they contain statements which would otherwise be admissible in evidence.</p> <p> 44) Evidence. Portions of Documents. </p> <p>Where a party offered a document in its entirety, but read only aportion thereof to the jury, it was not error to refuse to permit the adverse party to read the remainder which related to an alleged agreement prior to the execution of the written contract, and was therefore inadmissible as varying the terms of the contract.</p>

<p>(1) New Trial.</p> <p>As a result of the decisions relative to the powers and duties of trial judges in passing upon motions for new trials two rules have been established; 1, that when the evidence is nearly balanced or is such that different minds would naturally and fairly come to different conclusions thereon, the trial judge has no right to disturb the findings of the jury, although his own judgment might incline him the other way, but 2, when his judgment tells him that the verdict is wrong, because it fails to respond truly to the real merits of the controversy, and to administer substantial justice, and is against the fair preponderance of the evidence, then his duty is to set aside the verdict.</p> <p>(0) New Trial.</p> <p>Where, from an examination of the evidence the court cannot say, either that the trial judge was clearly in error in granting a new trial, or that his conelusion was founded upon such material error as to what the evidence was, as to render his decision clearlj erroneous, his finding will not be disturbed.</p>