Volume 40 — Rhode Island Reports

Equity. Petition for appointment of receivers. Heard on appeal of certain parties from decree of Superior Court, and appeal denied and dismissed.

<p> (1) Municipal Corporations. Notice. </p> <p>Where a notice of personal injury given to a municipal corporation under Gen. Laws, cap. 46, § 16, gave with substantial accuracy, the place of the injury, as of the time when the same occurred, a plaintiff is not to be deprived of -liis action by reason of the fact that repairs had been subsequently made, as to which he had no knowledge or notice.</p> <p>(i) Municipal Corporations. Notice. “About Opposite."</p> <p>In a notice of personal injury given to a municipal corporation under Gen. Laws, 1909, cap. 46, § 16, the words “ at a point about opposite the office of the X Co.,” in their natural significance would indicate a place on the opposite side of the street from the office of the X Co.</p> <p>(3) Municipal Corporations. Notice. Reasonable Accuracy.</p> <p>Where an accident occurred near the middle of an eleven-foot driveway, a notice of personal injury given to a municipal corporation under Gen. Laws, 1909, cap. 46, § 16, stating the place of the accident as. “ about 90 yards from B street and about 60 yards from R street,” is reasonably sufficient, notwithstanding the fact that it appeared from a plat that the exact distances- of 90 yards from B street and 60 yards from R street did not meet, and that neither of these exact measurements came within the limits of the driveway, where it appeared that the agent of the city who investigated the accident found that “ about 90 yards from B street ” -brought -him to the centre of the driveway, and “ about 60 yards from- R street ” brought him to a point only about ten feet south from the centre of the driveway.</p> <p> (Jf) Municipal Corporations. Notice. Damages. </p> <p>In- an action against a municipal corporation for personal injuries arising out of a defect in a highway, a plaintiff is not limited in his recovery to the amount demanded by him in the notice of claim under Gen. Laws, 1909, cap. 46, § 16.</p>

<p>.Bill in Equity seeking relief. Heard on appeal of respondents and denied.</p>

<p> (1) Trespass. Mesne.Profits. </p> <p>Where defendant occupied premises of plaintiff from September 2, 1913, to June 23, 1914, during which time he did not pay the stipulated rent, and May 23, 1914, plaintiff commenced an action of trespass and ejectment, the declaration alleging that defendant on said 23d day of May, 1914, wrongfully detained possession of the tenement from plaintiff, the tortious1 holding of defendant commenced on May 23d, and when the judgment in the ejectment suit became final that question became res adjudicata., so that plaintiff in an action of trespass for mesne profits could recover damages for wrongful occupation only from May 23 to June 23, 1944.</p>

<p> (1) Partition. </p> <p>The intent of cap. 330, Gen. Laws, 1909, relative to partition is to provide in the first instance for partition by metes and bounds, giving to each owner his fair and equitable portion of the same, but in the event of its not being practicable to make such a division and in that .event only, the court may in its discretion, order a sale of the property and a division of the proceeds.</p> <p>(2) Partition. Sale and division. Metes and Bounds.</p> <p>On a bill in equity for partition of tenement house property consisting of four parcels of land with seven houses thereon, the interests of the complainants being in fee and that of respondent .being a life interest in a portion, terminating upon her remarriage, and also a dower right, the court ordered a sale and division of the proceeds, with provision allowing any of the parties purchasing at the Sale to have his share apply toward the purchase price. On appeal, held, that as there was no practicable way by which the value of the interest of respondent could be determined, and taking into consideration the question of the financial ability of respondent, and the testimony showing the likelihood that a sale would result disastrously to respondent and that such sale was not necessary to protect the interests of any of the parties, and that the parties would still- have an opportunity to object upon the coming in of the commissioner’s report upon a division by metes and bounds, the Superior Court was- not justified in decreeing partition by sale.</p>

<p>(1} Workmen’s Compensation Act. Review.</p> <p>The findings of the lower court in a proceeding under the Workmen’s Compensation Act are reviewable, in the absence of evidence to support them.</p> <p>'(2) Workmen’s Compensation Act. Review. 'Intoxication.</p> <p>Sec. 2, Art. II, cap. 831, Pub. Laws, 1912, the “ Workmen’s Compensation Act” provides, “No compensation shall be allowed for the injury or death of an employee where it is proved that his injury or death . . .</p> <p>resulted from his intoxication while on duty.”</p> <p>Meld, that a respondent need not exclude every possibility that death might have resulted otherwise than from intoxication; so, if a decedent was in a condition in which he would be unable to look out for his own safety with that degree of care which a person would otherwise naturally exercise, and, while so influenced, did something which one in a normal condition would not be likely to attempt and which brought about the accident, the trial court would be warranted in finding that the accident resulted from the condition into which he had voluntarily ■ brought himself.</p>

<p> (1) Attachment. Estoppel. Bonds. </p> <p>Where a plaintiff attached the goods and chattels of a co-partnership, describing the defendant in the writ as a corporation, and defendant gave bond under Gen. Laws, 1909, cap. 300, § 16, which bond described defendant as a corporation, and obtained the attached goods from the sheriff, ■by such recital in the bond the defendant is estopped to deny that it is- a corporation.</p> <p> (2) Attachment. Bonds. Estoppel. </p> <p>Where a plaintiff attached the goods' and chattels of a co-partnership, describing the defendant in the writ as a- corporation, and defendant gave bond under Gen. Laws, 1909, cap. 300, § 16, which bond described defendant as a corporation, and also appeared and pleaded in its corporate character, it was not necessary for plaintiff to prove the fact of the incorporation otherwise than by the recital thereof by defendant in the bond introduced in' evidence by plaintiff and further ^jjy appearing and pleading in its corporate Character, defendant could not thereafter deny such fact.</p> <p> (3) Attachment. Bonds. Estoppel, Proving Capacity of Defendant. </p> <p> Rules Superior Court. Notice. </p> <p>Where a plaintiff attached the goods and chattels of a co-partnership describing the defendant in the writ as a corporation, and defendant gave bond under Gen. Laws-, 1909, cap. 300‘, .§ 16, which bond described; defendant as a corporation, and also appeared and filed the general issue in its corporate character and gave notice to plaintiff to prove the corporate character of defendant in accordance with Superior Court Rule No. IS,</p> <p>Held, that from1 the language of the rule it would be inferred that action 'by a justice upon the motion was necessary in order to put plaintiff upon proof of such capacity, but if the notice alone was sufficient for such purpose, plaintiff complied with the requirements of proof by the introduction in evidence of the bond containing the recital of said corporate capacity.</p> <p> (4) Attachment. Estoppel. Bonds. Judgment. </p> <p>Where a plaintiff attached the goods and chattels of a co-partnership, describing the defendant in the writ as a corporation, and defendant gave bond under Gen. Laws, 1909, cap. 300, § 16, which bond described defendant as a corporation and obtained the attached goods from the sheriff, and also appeared and pleaded in its corporate character, a judgment against defendant would be in personam, and the bond would stand to pay' the judgment. If the bond should not be sufficient to pay the judgment, any difficulty of plaintiff in collecting the balance could mot be urged by defendant against the entry of such judgment.</p>

<p>(I) Carriers. Contributory Negligence. Location of Tracks and Poles.</p> <p>Plaintiff was an employee of a company which had hired a special car from defendant, one of his duties .being to verify the number of passengers. There were trees and poles along the side of the track. While plaintiff was moving outside of a passenger, on the running board, he came in ■contact with a pole and was injured. Plaintiff had been similarly engaged for some months, and had been over the same route daily for three weeks. The passengers on the running hoard were not hit by the pole. Plaintiff admitted that he knew that trees and poles were alongside the track and that he was not looking for them.</p> <p>Seld, that plaintiff in swinging out as stated, without first looking ahead for obstructions with which he might come in contact, was guilty of contributory negligence.</p> <p>Seld, further, that defendant was not negligent in maintaining the pole in the position which it did, it being sufficiently removed from the track to permit passengers to stand upon the running board in the manner in which they would he expected to stand there — two feet from the outer edge of the running' board — without suffering injury.</p> <p>(£) Carriers. Negligence. Location of Tracies and Poles.</p> <p>A railroad company to avoid negligence, is not compelled to so construct and locate its trades and poles that it will be physically impossible for passengers to bring themselves in contact with the latter, but is only required to construct, arrange, locate and operate its instrumentalities in a manner which shall suitably provide for the safety of passengers while they are acting within the scope of their privileges or within such limits as may be reasonably anticipated.</p> <p>(3) Carriers. Negligence. Known Danger. Warning.</p> <p>A carriér is not obliged to give warning of a known danger or one which should have been obvious to the injured party.</p>

<p>(I) Criminal Laic. Jeopardy. Rabeas Corpus.</p> <p>Where a defendant, indicted for murder, was discharged on habeas corpus! as having been detained in violation of Gen. Laws, 1909, cap. 354, § 17, providing that every person who shall be indicted for murder and shall be imprisoned, shall be tried • or bailed within six months next after the time at which he shall plead to such indictment, if he demand a trial, such discharge is not a bar to another indictment for the same offence.</p> <p>(S) Criminal Lana. Trial.</p> <p>In a prosecution for murder of a woman, where the order of proof rests in the discretion of the court, it was not error to permit the State to offer evidence concerning her relations with defendant, where before the introduction of such testimony it had sufficiently appeared in evidence, that a woman had come to her death through the criminal agencv' of some per'son, but it had not then been established either by direct or circumstantial evidence that the body was that of the woman whose death defendant was charged with, nor had any evidence been introduced tending to connect defendant with the crime.</p> <p> (3) Criminal Lema. Evidence. </p> <p>In a prosecution for murder of a woman, a witness was properly permitted to testify as to the height and weight of the woman claimed to have been murdered, whom she had known for a considerable period, as compared with her own, for the purpose of identifying the body' as that of that woman, the witness at the time not being acquainted with her own height and weight, such statements not being mere expressions of opinion, but admissible for what they were worth as pointing differences between the woman and herself.</p> <p>(4) Criminal Law. Evidence. Rarmless Error.</p> <p>Where there was other evidence in the case bearing on the question of identification, technical error in the admission of evidence on that question is harmless.</p> <p> (5) Criminal Law. Evidence. Refreshing Recollection. </p> <p>Where a witness had a short time before testifying refreshed his recollection by an examination of a record, in contemplation of the evidence which he was about to give, the defendant is entitled to see and have the benefit of the record, in cross-examination, although the witness did not have the record immediately .before him when he gave his testimony, and refusal of the court to permit defendant to examine the record constituted reversible error.</p> <p> (6) Criminal Law. Evidence. Refreshing Recollection. </p> <p>Where a witness, upon having his previous testimony read to him, and being asked whether he had made such statement, consulted a record in making his answer, it was error to refuse permission to defendant to examine the record, for the purpose of showing, if he could, that the statement of witness was inconsistent with the earlier memorandum from which he, claimed to have refreshed his memory.</p> <p>(7) Criminal Law. Evidence. Record of Autopsy.</p> <p>In a criminal prosecution it was error for the court to deny the request of defendant for the reading of the record of the autopsy, by the medical examiner who bad conducted it and had appeared as a witness for the prosecution.</p> <p>(S) Criminal Law. Evidence. Witnesses. Privilege.</p> <p>In a criminal prosecution for murder, the State was properly permitted to interrogate a witness for the defence, as to the contents of a letter written by her to her husband, who was not accused of any complicity in the crime with which defendant was charged, the apparent purpose being to show the interest of the witness affecting her credibility, the communication not being privileged under the decisions in this State, which accord a witness the privilege of objecting to testifying on the ground that such, testimonjr would tend to criminate a husband or wife, but, in a proceeding which could never be used against the husband or rvife, forbid such objection to be raised by a third person, and which also hold that even the husband or wife of an accused offering himself or herself as a witness cannot be excused from testifying because of such relationship.</p> <p>(9) Criminal Lato. Evidence Interpreters.</p> <p>It is the duty of an interpreter to interpret and repeat to the court every statement made by the witness whose evidence .he interprets, and he has no discretion or power to determine what is admissible and what is not admissible, or to omit to interpret what he considers hearsay; his power is ministerial only.</p> <p>The power to determine whether answers are responsive belongs to the court and must be exercised by it and cannot be delegated to the interpreter.</p> <p> (10) Criminal Law. Evidence. Interpreters. </p> <p>While it was error for the court to refuse to permit the translation of an answer of witness to be completed so that its admissibility might be passed upon by the court, such refusal was harmless where, upon an almost immediate repetition of substantially the same question, - the witness repeated his- answer, which was fully translated.</p> <p> (11) Criminal Law. Evidence. Interpreters. </p> <p>Although the translated parts of answers pointed to their inadmissibility and suggested that the remainder was also founded upon hearsay or was not responsive, the court cannot act upon that assumption without knowing all that the witness had said. The court can obtain the translation and hear counsel aside from the jury, and decide what part should go upon the record, and while refusal to obtain the full translation of an answer before ruling upon- it would be error, such error was harmless where one of the counsel for defendant was well versed in both the language of the witness and of the court, so that if the untranslated portion of the answer contained anything admissible it could have been brought out by further questions.</p> <p> (12) Criminal Law. Evidence. Interpreters. </p> <p>In the selection, appointment and retention of an interpreter, as well as the manner of conducting an examination through him, the trial court is vested with a large discretion which will not -be interfered with unless an injustice to the complaining party clearly appears.</p> <p> (13) Criminal Lata. Evidence. Interpreters. </p> <p>Where the record shows that an interpreter was incompetent and unable to discharge -his duties in a manner calculated to insure to the defendant a fair trial, it was the duty of the trial court, upon such fact becoming apparent, to appoint some one else, and the failure to do so upon request constituted prejudicial error.</p> <p> (14) Criminal Law. Trial. Remarks of Court. </p> <p>In a criminal prosecution where, the defendant’s counsel having asked that he might be heard, the court said, “ We cannot waste time that way,” and at another time, defendant’s counsel having requested the court to instruct the witness to make her answers responsive, the court said, “.I believe the witness is- trying to do the -best she can,” such remarks constituted reversible error.</p> <p> (15) Criminal Law. Circumstantial Evidence. </p> <p>In a prosecution for murder, both the corpus delicti and the perpetration of the crime by defendant may be shown by circumstantial evidence, if it is sufficient to support the verdict of the jury.</p> <p> (16) Criminal Lato,. New Trial. Interpreters. </p> <p>The incompetence of an interpreter ca.nnot be included among the grounds in a motion for a new trial.</p> <p>Sweetland, J., dissents.</p>

<p> (1) Constitutional Law. Practice of Medicine. </p> <p>In determining the constitutionality of Gen. Laws, 1909, cap. 193, relative to the practice1 of medicine, the question to be determined is whether the particular qualification required by the chapter for the practice of medicine is one fit and appropriate to the medical profession and •designed for the protection of the public, or is unreasonable and arbitrary.</p> <p>(3) Constitutional Laxo.</p> <p>No one can take advantage of the unconstitutionality of an act who has no interest in and is not affected by it.</p> <p>(S) Constitutional Laxo. Practice of Medñeme. ></p> <p>Gen. Laws, 1909, cap. 193, § 3, in providing that a candidate for examination for authority to practice medicine in this State must present “ satisfactory' evidence of graduation from a medical school in good standing,” cannot be attacked on the ground that it'is unconstitutional in that it makes no provision for persons not graduates of a medical school, but who are qualified to practice medicine, where defendant does not belong to the class thus excluded and is therefore not affected by the provision.</p> <p> (4) Constitutional Law. Practice of MecUcme. </p> <p>Gen. Laws, 1909, cap. 193, § 3,.in providing that a candidate for examination for authority to practice medicine in this State must present 11 satisfactory evidence of graduation from a medical school in good standing,” is not obnoxious to Art. I, § 10, Cons. E. I., nor to Art. XIV, § 1, of amendments to Cons. U. S., in depriving a defendant, who claims to have originated a system of medicine not taught in any school, unexplained and with apparently no followers, of the right to pursue his lawful occupation, and thus depriving him of liberty and property without due process of law, for a provision excluding one' from practicing such a system must be held to be in the interest of the general welfare and to be a reasonable and proper exercise of legislative power; nor obnoxious to Cons. E. I., Art. I, § 2, requiring that “ all laws - should be made for the good of the whole.”</p> <p>(5) Practice of Medicine. t</p> <p>Unless one was engaged in the practice of medicine on January 1, 1892, or has since passed the examination required by the Board of Health which he was eligible to take prior to May 22, 1908, he has never lawfully practiced medicine, and therefore is, by Gen. Laws, 1909, cap. 193, § 3, deprived of no vested property right.</p> <p> (6) Practice of Medicine. </p> <p>A new .and stricter requirement for the practice of medicine, which excludes some hitherto lawfully practicing, is not an unconstitutional exercise of legislative power.</p> <p>(7) Practice of Medicine.</p> <p>The classification under Gen. Laws, 1909, cap. 193, § 3, of those qualified to practice medicine lawfully, into persons who, being graduates from a medical school in good standing, pass in a satisfactory manner the examination required by the State Board of Health, and persons lawfully engaged in the practice of medicine on May 22, 1908, is not in conflict, in requiring satisfactory evidence of graduation from a medical . school in good standing before a candidate can be examined or be permitted to practice medicine, with either Section 10 of Article I of the Constitution of the State or Section 1 of Article XIV of the amendments to the Federal Constitution, as an unreasonable classification, nor is it in conflict with that portion of Section 2 of Article I of the Constitution of the State which requires that “ all laws . . . should ■be made for the good of the whole.”</p> <p>(8) Practice of Medicine. Constitutional Law.</p> <p>Where one is excluded from the practice of a profession by the terms of a statute and not by the exercise by a State Board of Health of any power given to it by the statute, he is not affected by any of the powers conferred upon the board, and therefore cannot attack the constitutionality of the portion of the statute conferring the powers.</p> <p> (9) Practice of Medicine. Constitutional Laic. </p> <p>Gen. Laws, 1909, cap. 193, is mot in conflict with either Section 10 of Article I of the State Constitution or Section L of Article 14 of the amendments to the Federal Constitution, in that it fails1 to define the “ practice of medicine,” since these words must be construed to relate to the practice of medicine as ordinarily and popularly understood.</p> <p> (10) Practice of Medicine. Constitutional Lane. Ex Post Facto Law. </p> <p>An objection to the constitutionality of Gen. Laws', 1909, cap. 193, relative to the practice of medicine, that it is in effect an ex post fact.o law, because its prohibitions vary from/ time to time as medical science progresses aid as the personnel of the court changes, cannot be raised by a defendant who does not show that he has been affected in the respects alleged.</p> <p> (11) Constitutional Laic. Ex Post Facto Law. </p> <p>Art. I, § 10, of the Federal Constitution, “ No State shall . . . pass any ... ex post facto law,” is a restraint upon legislative power, and concerns the making of laws, not 'their construction by the courts.</p> <p>(Í2) Practice of Medicine. State Board of Health. Constitutional Law.</p> <p>Gen. Laws, 1909, cap. 115, “ Of the State Board of Health,” is not obnoxious to Cons. B. I., Art. 1, § 2, “All laws . . . should be made for the good of the whole,” in providing’ that at least four of seven members shall be members of some medical society incorporated by the State, nor is it in conflict with Cons. B. I., Art. 1, § 10, nor with Cons. U. S. Art. 14, § 1, of amendments, in that it is legislation for a class and not for the public welfare, for under Chapter 115 the duties of the State Board of Health do not include any relating- to the regulating of the practice of medicine, and the practitioners of every school of medicine in the State, if they number as many as five, may form a medical society under the general laws and be eligible for appointment to the board.</p> <p>(id) Constitutional Law. Practice of Medicine.</p> <p>Even if Gen. Laws, 1909, cap. 193, § 3, “ Of the Practice- of Medicine,” were open to the objection of unconstitutionality as to the grant of power to the State Board of Health to examine candidates for the practice of medicine and to issue or withhold certificates, this would not affect the validity of Gen. Laws, 1909, cap. 115, “ Of the State’ Board of Health,” in any respect.</p>

<p>(1) Burvwal of Action. Deceit.</p> <p>A cause of .action for deceit Survives the death of the wrongdoer and can be maintained against the executor.</p> <p>(2) Swi'vival of Aotion. Deceit. Personal Estate.</p> <p>An action for deceit alleging false and fraudulent representations of defendant’s testatrix, causing loss by reason of the purchase of worthless stock, is within Gen. Laws, 1909, cap. 283, § 7, providing for the survival of the death of either the plaintiff or defendant, of an action of trespass on the! case “ for damage® to personal estate,” and may be originally prosecuted against the executor.</p> <p> (8) Survival of Action. Personal Estate. </p> <p>The words “ personal estate,” as used in Gen. Laws, 1909, cap 283, § 7, providing' for the survival of the death of either the plaintiff or defendant of an action of trespass on the case “ for damages to personal estate,” should ’be construed to mean every species of property not of a freehold nature, including not only goods and chattels, but rights and credits also. , ‘</p> <p>(7/) Survival of Action.</p> <p>The rights of action under Gen. Laws, 1909, cap. 28-3, by and against executors and administrators, are reciprocal,, and actions which would survive in favor of an executor or administrator of the injured person survive against the executor or administrator of the wrongdoer.</p> <p>Vincent, J., dissenting.</p>

<p> (1) Probate Appeals. Accident, Mistake, and Unforeseen Cause. </p> <p>Gen. Laws, 1909, cap. 285, § 1, “Whenever any civil action (except in a district court) or whenever any appeal, shall not be entered according to law, the court to which the same is returnable may, in case of accident, mistake, or unforeseen cause, in its discretion, allow the same to be entered with or without terms,” docs not apply to a probate appeal, but the procedure to be followed on such- appeals is that provided by Gen. Laws', 1900, cap. 311, § 1, and where such procedure has not .been followed, the Superior ■ Court is without jurisdiction to permit the appeal to be entered under cap. 285, § 1.</p> <p>(2) Probate Appeals.</p> <p>Where an appellant in a probate appeal flies his claim, of appeal in the probate court within the forty days, but fails within the fifty days to file in- the 'Superior, Court a -certified copy of his claim of appeal and of the record of the proceedings appealed from, and his reasons of appeal, while under Gen. Laws, cap. 311, § 2, further timie can be granted to file the certified copy of the record of the proceeding appealed from, the failure to file the certified copy of the claim of appeal and the reasons of appeal prevents the Superior Court from, acquiring jurisdiction.</p> <p> (S) Probate Appeals. Jurisdiction. </p> <p>Where a probate court -has original jurisdiction, the -Superior Court acquires jurisdiction' only by the taking of the steps necessary for perfecting an -appeal.</p>

<p> (1) Master and Servant. Automobiles. </p> <p>X, while making a social call at the 'house of defendant, was: requested by defendant to take her for a drive in -her automobile. X agreed to do so if he could obtain his father’s permission, whereupon defendant told him; that he could take the automobile for that purpose. He did so, and while on the way back an accident occurred.</p> <p>Held, that the trip was necessarily preliminary to the ride which defendant desired, and was for her benefit, and X was acting as the servant of defendant.</p> <p>(2) Contributory Negligence.</p> <p>Where plaintiff, who was on the side of the track from which passengers were expected to board a street car, before leaving the curbstone looked in both directions and saw mo vehicle and heard no warning, and was unaware of the presence of the automobile until it struck her, and had lowered 'her umbrella in preparation for stepping upon the car, which was almost beside her, she was not guilty of contributory negligence as a matter of law, and any question of cqntributory negligence was one; for the jury.</p>

<p> (1) Workmen’s Compensation Act. Decree. Findings of Fact. </p> <p>A decree in a petition under the Workmen’s Compensation Act (Pub. Laws, cap. 831) ordering that the petition “be and hereby is dismissed and denied, for failure of the petitioner to comply with the requirements of law, to enable him to maintain his petition, as appears by the testimony presented therein,” is not in accordance with the provisions of Art. Ill, § 6, of the act which requires the justice hearing the cause to file a decision in writing on which a decree shall be entered, which decree “ shall contain findings of fact.”</p> <p> (2) Workmen’s Compensation Act. Decree. Findings of Fact. </p> <p>A petitioner under the Workmen’s Compensation Act is entitled to such “ findings of fact ” -in the decree as will clearly show in what, respects, under the evidence, he has failed to sustain the burden of proof resting upon him, so that upon appeal, with the transcript of testimony and rulings, it will appear to the appellate court upon what grounds the action of the justice hearing the cause in entering the decree was based.</p>

<p> (1) Notice. Town Council. Defects 'in Highways. </p> <p>Notice to a member of a town council of a town of a defect in a highway is not actual and express notice of the defect to the town.</p> <p> (2) Defects in Highways. Evidence. </p> <p>In an action for personal injury arising out of a defect in a highway, evidence as to an injury to a wagon on another portion of the same road, about 200 yards distant from‘the place of plaintiff’s injury, was rightly excluded.</p> <p> (8) Bill of Exceptions. </p> <p>Where exception was taken to the granting of a request to charge, and such exception is found to be without merit, language of the court used in the charge subsequent to the reading of the request, which was not referred to at the time of talcing the exception, nor mentioned in- the rbil'l of exceptions, is not .before the court for consideration.</p> <p> (Jf) Defects in Highways. Instructions. </p> <p>In a personal injury action arising out of a defect in a .highway, charge that if the jury found certain facts' they should And for the defendant constituted reversible error, for while there was evidence as to certain facts set forth in the request which it was proper for the jury to consider in relation to the question of contributory negligence, warranting the instruction to consider such circumstances on the question of the due care of plaintiff, the instruction in the form given might well be understood as a positive instruction to find for defendant.</p> <p>(5) Defects in Highways. Instructions.</p> <p>Where there was nothing in the evidence to warrant a reference, in instructions to the jury -to the plaintiff’s dress as an element to be considered in relation to her due care, but it simply appeared that, being a woman, she was dressed in woman’s clothes, which in no degree contributed to her fall from the cart, the instructions constituted reversible error.</p>

<p>(7) Workmen’s Compensation Aot. Dependent.</p> <p>Where a petitioner under the Workmen’s Compensation Act, being the widow of deceased, was not diving with him' at the time of his injury, and had not lived with him for about eighteen months, and had filed a petition for divorce on the ground of neglect and refusal to provide necessaries for her support for a period of two years, which petition, supported .by her sworn testimony to such effect, was granted, although final decree had not been entered, and it appeared that petitioner had supported herself by her own labors and outside assistance, .she did not come within the presumption of dependency under Art. II, § 7: “ The following persons shall be conclusively presumed to be wholly dependent for support upon a deceased employee, (a) a wife upon a husband with whom she lives or upon whom she is dependent at the time of his decease.”</p> <p>(2) Workmen’s Compensation Act. Dependent.</p> <p>Where there is no presumption of dependency under Art. II, § 7, the question of dependency becomes one of fact under the evidence in accordance with other provisions of said Section 7, “In all other cases questions of entire or partial .dependency shall be determined in accordance with the fact as the fact may have been at the time of the injury,” and there being substantial testimony that deceased had done nothing for petitioner for at least two years prior to his death, the finding of the court that she was not either wholly or partially dependent, in the absence of fraud, is conclusive of that fact.</p> <p>(3) Workmen’s Compensation Aot. Dependent. Legal Obligation.</p> <p>The existence of a legal obligation on the part of the deceased employee to support his wife is not important in the determination of the question of dependency.</p>

<p> (1) Landlord and Tenant. Rent. Assignment of Lease. </p> <p>The assignment of a lease, the assent thereto by the lessor, and acceptance of rent from the assignee by the lessor, do not operate as a discharge of tilie lessee from his covenant to pay rent, but lessor has a double claim against both the assignee and the original lessee.</p> <p> (2) Landlord and Tenant. Release of Lessee. Rent. </p> <p>While it is competent for a lessor to accept the substitution of one party for another and to release the original lessee from further liability under his covenant to pay rent, the intent of lessor to do so must clearly appear either from -the written assent itself or from the written assent aided by some subsequent acts of. lessor tending to show its accepted interpretation and meaning.</p> <p> (3) Lease. Assignment. </p> <p>Premises were leased to A is B. During the term A assigned his interest to C, the assignment stating, “ It is understood that said lease shall hereafter be held in the' names of C & B.” Lessor assented to the assignment to “ C & B and agree® to accept them' as tenants under the terms of the lease.”</p> <p>0 & B occupied the premises and paid the rent for several months, when they declined to make further payments.</p> <p>Lessor brought .action against A & B under the original lease.</p> <p>Held, that there was nothing'in the language of the assent by lessor to show a substitution of a new partnership for the .old one, absolving the old from' all liability under the lease, and A & B were not discharged from liability for rent.</p>

<p>(/) Process. Motions. Removal.</p> <p>The record of a cause as it proceeds should be made up by the clerk of the Superior Court for the county in which the cause, in accordance with the statute, has been brought, and all papers to be filed in the proceeding should be filed with 'him, and while the. court may, under Gen. Laws, 1900, cap. 273, § 12, order papers in a cause to be sent from one county to another, the fact of such order and transmission alone does not change- the status of a cause and permit a motion to be filed elsewhere- than in the office of the clerk for the county where the cause lias been brought.</p> <p>(2) Motions. Removal. Place of Pili/ng.</p> <p>Gen. Laws, 1909, cap. 287, § 8, providing that motions “ arising in Newport, Kent, or Washington counties may, when the court is not sitting in said county, be heard and disposed of in Providence,” does not permit the filing of a motion with the clerk for the counties of Providence and Bristol in a cause originally entered in the county of Kent.</p> <p> (S) Certiorari. </p> <p>Ordinarily, in certiorari, the court will consider and correct final determinations merely, and those only in cases where no other remedy is expressly provided, and where provision is made for appeals from certain interlocutory decrees, and from final decrees, in equity causes, it is only in case's of unusual hardship that certiorari will be permitted to supplement the statutory method of review.</p> <p> 14) Certiorari. Formal Error. </p> <p>Certiorari cannot he employed to correct error that is technical or formal, or which has caused no substantial injury to the petitioner.</p> <p> (5) Certiorari. </p> <p>Certiorari is a prerogative writ, and its issuance, and the relief to b.e granted under it, are discretionary.</p> <p> (6) Certiorari. </p> <p>Certiorari will not lie to quash a record, where the court entered a decree appointing a master to frame issues, on a motion filed improperly in Providence county which should have been filed in Kent county, where no right of the respondent is concluded thereby, and the, complainant could renew the motion in the proper county, and the justice might on request hear such motion in Providence when the court was not sitting in Kent,, and might again appoint a master to frame issues, and because the cause is one involving title to real estate in Kent county, the procedure: is not different from that in other causes.</p>

<p> (1) Billboards. Constitutional Law. </p> <p>Decision in Horton v. Old Colony Bill Posting Co., 36 R. I. 507, sustaining the validity of Pub. Laws, cap. 542, Jan. SeSs. 1910, “An act authorizing cities and towns to regulate certain out-doo-r advertising,” and cap. 443 (1910) of the ordinances of the City of Providence, the so-called “ Billboard ” ordinance, as a proper and reasonable exercise of the police power, and as not obnoxious to certain constitutional provisions, approved and affirmed.</p>

<p>(1) Inswanee. Warranties. Rescission. Pledding.</p> <p>Where a part of the consideration of a policy of insurance was the agreements and statements contained in the .application of insured, which were warranted to be true and material by the acceptance of the policy, a statement that no insurance policy issued to insured had ever been cancelled, if untrue; was a false and fraudulent representation as to a material fact, and a false warranty under the provisions of the policy, and under the plea of the general issue the insurer might show the fraudulent character of such representation and the fact that insurer, in the lifetime- of insured, .before the -happening of the event upon which plaintiff’s claim, was based, had rescinded the contract of insurance.</p> <p> (2) Insurance. Warranties. Rescission. Pleading. </p> <p>During the lifetime of an insured, upon the discovery of the falsity of a material statement contained in the application, and declared to be a warranty in the policy, the insurer is entitled to return the premiums paid and rescind the contract of insurance. -Such rescission would be a defence to an action brought to .recover on the contract for the death of insured occurring subsequent to the rescission, and may be shown under the general issue.</p> <p>(3) Insurance. Warranties. Cancellation.</p> <p>Where the terms of an insurance policy drawn by the insurer recognize the distinction between cancellation and surrender, in requiring that an applicant state whether an insurance policy issued to him. had ever been cancelled, the insurer must be held to have referred to cancellation by the insurer, and not to a policy voluntarily surrendered by insured, even though the policy so surrendered had been marked “ cancelled ” by the insurer.</p> <p>(4) Insurance. Cancellation. Surrender.</p> <p>Where an insurer, desiring to terminate the risk, notified insured that it had cancelled the policy, and directed him' to bring it in to be can-celled, which insured complied with, the transaction was one of cancellation and not a voluntary -surrender, and therefore a statement subsequently made by’insured, in his application to another company, that no insurance policy issued to -him had ever been cancelled, was wilfully false.</p> <p>(5) Insurance. Warranties.</p> <p>Statements in an application for insurance, made as of the applicant’s own knowledge, upon which- the contract is based, are warranties.</p> <p>(6) Insurance. Cancellation. Warranties.</p> <p>The right of -an insurance company, which has been induced to issue a policy through the fraud of the insured, to return the consideration and rescind the contract, within a reasonable time after the discovery of the fraud and during the lifetime of the insured, is not affected by Gen. Laws, 1909, cap. 292, § 53, providing that “no misstatement made in procuring a policy of life insurance shall ¡be deemed material or render the policy void unless the matter thus ¡represented shall have actually contributed to the contingency or event on wihich the policy is to become due and payable, and whether the matter so represented contributed to said contingency or event, in any case, shall be a question for the jury.”</p>

<p> (1) Negligence. Street Railways. </p> <p>A horse and wag'on was being- driven on a car track in a city street. The night was dark, owing to the absence of all street lighting. The snow was gathered in great quantity in the roadway. The wagon was struck in'the rear by a car of defendant; the horse freed itself anijL, running away, struck and damaged the automobile of plaintiff. There was testimony that the driver heard no warning and did not look behind, find there was a ladder extending a few feet back from the rear of the wagon. The wagon carried no lights, but the headlight of the ear was lighted.</p> <p>Held, that the circumstances imposed more than ordinary care upon those operating cars and other vehicles upon the street, and while there was little conflict in the testimony, the question of whether the collision resulted from the negligent and careless operation of the car by defendant’s servant was properly submitted to the jury, and there was no error in denying defendant’s motion for a direction.</p> <p>(3) Negligenoe. Street Railways. Concurring Negligence.</p> <p>•On the above facts it was not error to refuse a charge that “ it was the duty of the driver of the team to display one or more lights on his vehicle, visible both in front and in the rear, in accordance with cap. 1028, Pub. Laws, 1914,” as the jury might have been mislead as to the real issue.</p> <p> (3) Negligence. Street Railways. Concurring Negligence. </p> <p>On the above facts, instructions that even if the driver of the wagon did violate the law as to displaying lights, but the negligence of the driver and the negligence of the railway company both concurred in causing the accident, plaintiff, if he saw fit, could hold the railway company alone responsible, but that the absence óf lights on the team! might be taken into consideration! in determining the negligence of the motorman, was proper.</p> <p>(4) Negligence. Street Railways.</p> <p>On the above facts, instructions that the mere fact the car was not run so slowly that it could be stopped within the distance that the headlight threw light did not, as a matter of law, establish negligence, but the jury should consider that circumstance with the other evidence to determine the negligence of defendant, was proper.</p> <p> (5) Negligence. Street Railways. </p> <p>On the above facts, instructions that if the car was not being run at. a negligent speed, and the motorman upon discovering the vehicle did all he could to check the speed and avert the accident, he was not guilty of negligence, was proper.</p> <p>(6‘) Negligence. Street Railways.</p> <p>On the above facts, instructions that the driver of the team was not bound to look behind him all the time, but that his place was to look ahead, need not be considered in passing on defendant’s exceptions, where the jury had .been instructed that in order for plaintiff to recover they must find defendant guilty of negligence in causing injury to plaintiff, irrespective of whether or not the driver of the vehicle was also guilty of negligence contributing thereto.</p> <p>(7) Negligence. Street Railways.</p> <p>On the above facts, instructions that the burden was- upon defendant to explain that the collision was not the result of negligence, and that if .it did not explain satisfactorily the circumstances' which freed it from the imputation, of negligence the jury would be warranted in finding that it occurred through defendant’s negligence, was proper.</p>

<p>Action for recovery of tax. Heard on exception of plaintiff and bill of exceptions dismissed.</p>

<p>Petition for Mandamus. Heard and denied.</p>

<p> (1) Highways. Repair. </p> <p>The duty of towns and cities to keep their highways in repair, being imposed by statute, cannot be qualified by anything of less authority, ■but by statute it can be qualified either expressly or by implication.</p> <p>(S) State Roads. Repair of Higlways.</p> <p>Under Gen. Laws, 1909, cap. 84, State roads are directly under the control of the State, and, with the exception of the removal of snow and ice, the responsibility for the proper repair and maintenance of the entire State highway rests upon the State, and a town is not under obligation to- keep in repair or to provide a railing for the part of the highway representing the width thereof outside of the part actually constructed by the State Board of Public Roads.</p>

<p>(I) Accord and Satisfaction. Disputed Claim.</p> <p>In order for a payment to work as an accord and satisfaction in settlement of a disputed claim, there must be an honest dispute based on real grounds for dispute; a person cannot create a dispute sufficient for the' purposes of an accord and, satisfaction by a mere refusal to pay a claim undisputed in fact.-</p> <p>(3) Accord and Satisfaction. Disputed Claim. Contracts.</p> <p>Where the evidence disclosed no dispute or controversy as- to the terms of a contract, or as to the performance of the work charged for, or that the bill rendered, which was itemized and for a sum certain, was not a correct statement of the- sum due according to the terms of the contract, but, on the contrary, an arbitrary refusal by one party to pay more- than half of the bill, a partial payment of the claim, even if accepted in full settlement, is not an accord and satisfaction thereof, as no consideration is shown therefor.</p> <p>(3) Accord and Satisfaction. Disputed Claim.</p> <p>Where the evidence disclosed no honest dispute, 'based on real grounds, and plaintiff received from defendant a check for a partial payment of the claim, with the words “ in full for all indebtedness ” thereon, which words plaintiff eradicated with a chemical and thereupon cashed the check, the acceptance of the check under the circumstances did not work an -accord and satisfaction of the claim.</p> <p>(4) Contract. 7\ovation. Accord and Satisfaction.</p> <p>On a motion for a nonsuit, where plaintiff claimed that if the evidence showed an extinguishment of defendant’s liability under an old contract, this had been! accomplished not by an accord and satisfaction but in consideration of a partial payment and the making of a new contract for additional and future employment, and that he was entitled to go to the jury upon the new contract, the acceptance by/plaintiff of a check for the partial payment, marked in full settlement for all indebtedness, could be argued upon the testimony to have been intended by the parties to apply only to present indebtedness, but even if defendant intended the check to extinguish plaintiff’s rights under the alleged new contract, and plaintiff so understood when he cashed it, in the absence of any dispute concerning it, the question would then be, was there any consideration moving from defendant to support the implied agreement, if there was such agreement, to extinguish the contract or was it other than a nudum pactum.</p>

<p> (1) Common Carriers. Negligence. Inspection. </p> <p>In a personal injury action, where the accident was caused by the bolt Which attached the end of the back of the seat immediately in front of plaintiff to a stanchion of the car becoming displaced and permitting the end to strike plaintiff, the jury might properly find that an inspection of the bolts by defendant, which consisted in walking, upon the floor of the ear house along the side of the car and looking across the interior of the car at the bolts on the other side, the inspection being made at night, the cars being lighted from overhead, was not a reasonable inspection, under the evidence wihich included, testimony as to methods of inspection by other street railway companies.</p> <p>(£) Negligence. Damages.</p> <p>A verdict for $4,000 in a personal injury action, approved by the trial justice, will not be disturbed as excessive, where there was evidence from which the jury might find that plaintiff was1 very severely injured; had been rendered incapable of attending to her usual occupation and had lost a considerable' sum in wages.</p>

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

Bill in Equity' for specific performance. Heard on respondent’s appeal from decree of Superior Court overruling exceptions to report of master and appeal sustained in part.

<p> (1) Sales in Bullo Act. </p> <p>Where the Sales in Bulk Act requires the performance of certain acts in the carrying out of such a sale, and declares that the failure to perform these acts will render the transaction fraudulent in law, this is not the enactment merely of a rule of evidence, but a declaration of substantive law that the non-observance of certain statutory provisions constitutes fraud in law.</p> <p>(2) Sales in Bulk Act.</p> <p>Pub. Laws, cap. 387, passed April 14, 1909, “An act to prohibit sales of merchandise in 'bulk in fraud of creditors,” making a transfer of a stock of merchandise in bulk fraudulent and void as to the transferrer’s creditors unless the transferee “ demand's and receives from the transferrer a written list of the names and addresses of the creditors of the transferrer and certified by him, under oath, to be to the best of his knowledge and belief, a full, accurate and complete list of his creditors and unless the transferee shall, at least five days before such transfer, notify personally or by registered mail, every creditor whose name and address are stated in said list of tlie proposed transfer,” does not make t'lie purchaser responsible for any incorrectness in the list, and where a transferee lnas complied with the statutory requirements, the sale i® not void, although he may learn before the transfer that the list received by him was not in fact “a full, accurate and complete list.”</p> <p> (8) Sales in Bulk Act. </p> <p>Semble: Pub. Laws, cap. 387, passed April 14, 1909, the “ Sales in Bulk Act,” is in effect an addition to sec. 1 o'f cap. 253' of the General Laws relating to conveyances in fraud of creditors, and such a sale in bulk, while it may comply with the requirements of cap. 387, is open to inquiry as to the existence of fraud in fact.</p>

<p>(I) Probate Law and Procedure. Pleading. Amendment.</p> <p>Where an action was brought against an estate of a decedent within, six months after the disallowance of the claim, an amendment to the declaration made more than six months after suoh disallowance, setting out the filing of the claim and that it had been disallowed, was properly permitted, as such- amendment effected no change in the cause of action as originally commenced.</p>

<p> (1) Probate Lam and Procedure. Perpetual Gore. </p> <p>Gen. Laws, 1909, cap. 318, § 4, provides that “An, executor or administrator of a solvent estate may pay to a cemetery corporation or to a town or city a reasonable sum, for the perpetual care of the lot in which the body of his testator or intestate is buried. The probate court may determine after notice the amount of such payment and to whom the Same shall be paid.”</p> <p>Held, that it is the duty of a probate court under this statute in case of a solvent estate to determine the amount of the payment and to whom it should be paid and it is without jurisdiction to simply deny and dismiss >a petition without taking the action which the statute contemplates. Kenyon v. Kenyon, 31 B. I. 270, distinguished.</p> <p> (2) Prolate Late and Procedure. Persons “Aggrieved.” </p> <p>An administrator is a person “ aggrieved ” and entitled to appeal from an order of a Probate Court, dismissing a petition for permission to pay a sum, for perpetual care of the burial place of his intestate.</p> <p>(S) Prolate Law and Procedure. Persons “Aggrieved.”</p> <p>In order to maintain an appeal it is not necessary for an administrator to have suffered a 'grievance as to his own personal or property rights, but it is sufficient if he has suffered a grievance in his representative capacity.</p>

<p>(1) Insurance. Warranties. Application.</p> <p>Where a policy was issued “ in consideration of the agreements and statements in the application, a copy of which is endorsed hereon and made a part hereof, which the insured makes and warrants to he true and material -by the acceptance of this policy/’ among the “ agreements ” in the policy -being one that “ this policy with the copy of application and any riders or endorsements signed by an officer at the home office and endorsed hereon or attached hereto shall constitute the entire contract of insurance,” the obligation of the insurer is based upon the existence of an application binding upon the insured, and if insured claims that no application existed owing to the fact that he did not sign it, then the consideration upon which the policy was issued was lacking, and plaintiff’s action, baised upon the policy, should fail.</p> <p> (2) Insurance. Warranties. Estoppel. </p> <p>Where a policy was issued “ in consideration of the agreements and statements in the -application a copy of which is endorsed hereon and made a part hereof,” and insured accepted the policy, he is estopped from denying that he made the application and both he and the beneficiary would be bo-und by the statements and warranties contained in such copy of application, although insured had neglected to sign it.</p> <p>(3) Insurance. Pleading. Warra/nties.</p> <p>In an action on a policy of insurance, where defendant company filed with its plea a copy of the policy, having a copy of an application endorsed thereon, in which copy the -blank for signature of applicant was filled in with name of insured, and plaintiff in the replication to the plea referred to the “ original application-,” plaintiff thereby treated said copy as a copy of application made by insured and binding upon him.</p>

<p>(/) Wills. Trusts. Intention.</p> <p>By a testamentary trust of the residue, testator in one clause of his will, gave general directions “ to keep in good order and repair and properly-insured ” the “ improvements upon the real estate,” and in another clause authorized and directed the trustees to pay from the net income of the estate a sum “ not exceeding $25,000 in any one year,” for the maintenance of the “ Warwick Neck Estate.” The testator expressed the hope that this estate after distribution of his general estate would continue in the possession of his- family. Erom the balance of the income the trustees were directed to make certain payments, to the widow and children. Owing to additional real estate acquired after the execution of the will and additional buildings erected and other improvements added to the Warwick Neck Estate it was- impossible to maintain the property or to prevent its- deterioration without additional annual expenditure. There was sufficient income after payments of the annuities to the widow and children to provide for the increased expenditure on the property.</p> <p>Held, that the will showed a general intention worked out in detail that the Warwick Neck Estate should not be sold during the continuance of the trust, and should be carefully kept up and improved, and, therefore, the particular intention limiting the amount to be annually spent for maintenance must give way to the general intention that the estate should be kept up and maintained in a thorough manner.</p> <p> (2) Wills. Construction. General and Particular Intention. </p> <p>In the construction of a will, the general intention is to control the particular intention if there be an irreconcilable inconsistency between them.</p>

<p> '(1) Wills. Trusts. Contingent Equitable Remainders. </p> <p>By a testamentary trust testator directed the payment of the income of the estate to his wife for life, and after her decease to his three children, and upon the decease of one or more of them to the survivors and survivor of them, equally, and upon the death of the survivor of them or upon the death of the wife in case she- survived all the children, to convey the trust estate to his heirs at law.</p> <p>Two parcels of real estate were sold by the trustees by authority of acts of the General Assembly, which provided that the proceeds of the sales should form a part of the trust estate and “ be finally disposed of as directed in said will and as if no such sale . . . had been made.” Part of the estate in the hands of the trustee represented the proceeds of such sale of the real estate and a third parcel of real estate still formed a part of the trust estate.</p> <p>Held, that the will gave contingent equitable interests in fee to those persons' who would answer the description of his heirs at law at the time of the death of the last survivor of his wife and children, if he had just then died intestate and without issue.</p> <p>Held, further, that as the will made no difference in the disposition of real and personal property, it was the duty of the trustee to convey all of the personal property of the trust estate to the persons who on the date of the death of the last survivor of the wife and children answered the description of the heirs of testator, the same to be divided among them in accordance with the statute of descent and distribution.</p> <p>Held,. further, that in the absence of any evidence that there was any difference in the law of Connecticut as to descent, land in that State would follow the same course as to division.</p> <p>(3) Vested and Contingent Remainders.</p> <p>While the law favors the vesting of estates immediately upon the death of the testator, and will not regard the remainder as being contingent, in the absence of a clear intent on the part of testator to that effect, nevertheless this preference of the law is subordinate to th.e principle that the written expression of the testator taken in its natural sense and use and applied to existing facts must control.</p>

<p> (1) Leases. Conditions. </p> <p>While at preliminary negotiation's for a lease of a stable, lessee stated that it would take the premises if the stable .was high enough to accommodate certain delivery wagons which had been ordered, yet when some two weeks later lessor received the lease by mail executed by lessee, he was entitled to assume that the letting was complete and unconditional, and there was no meeting of the minds of the parties upon the subject of a conditional letting at the time of the execution and delivery of the lease.</p> <p>(2) Leases. Evidence.</p> <p>Where a lease was executed by an officer of a corporation, who had deceased prior to the trial, evidence by one who was not present at the time of the execution of the lease, tending to show that such officer signed it in reliance upon statements theretofore made at an interview between lessor and witness- in presence of such officer as to the premises fyeing able to accommodate wagons of lessee, to show that</p> <p>' the lease was delivered on condition, was inadmissible.</p> <p>(3) Leases. Conditions.</p> <p>Where a lease is unconditional on its face, and was received duly executed by lessee through the m-ail by lessor -some two weeks after a preliminary conversation between the parties, evidence relating to statements made by lessor at such preliminary interview is immaterial.</p> <p>(1¡) Leases. Fraudulent Misrepresentation.</p> <p>A statement 'by lessor that he would “guarantee this barn is high enough to carry any delivery wagon that ever was built” is not a misstatement of fact within lessor’s knowledge, where lessee knew that he had never seen the wagons and that ho had no more actual knowledge of them or their height than he had. Such a statement is no more than “ dealers’ talk,” not to be relied upon by prudent business men.</p> <p> (5) Leases. Surrender. </p> <p>Where a lease was executed June 26, and about July 15 lessee notified lessor of his intention to giye up the premises, at which time lessor notified him that he would hold him to the lease, and lessee continued to occupy the premises after it had found-that they would not accommodate its new wagons, for some time, and on August 8, sent the key -by mail to lessor, without any letter or notice, such facts did not amount to a surrender and acceptance.</p> <p>(6) Leases. Surrender.</p> <p>Where a lease was executed Juno 26, and about July 15 lessee notified lessor of his intention to give up the premises, at which time lessor notified him that ho would hold him to the lease, and lessee continued to occupy the premises after it had found that they would not accommodate its new wagons, for some time and on August S sent the key to lessor by mail without any letter or notice,' and lessor on September 1 rented the premises to a third party without notice to lessee, for one month, and on October 21 sent a bill to lessee for three month's’ rent, giving credit for the amount received from the tenant, and later re-lot the premises for five months without notice to lessee, both lettings being without the knowledge or assent of lessee, such acts operated as an acceptance of the surrender by lessee from and after September 1.</p>

<p>(7) Fire Insurance. Conditions Subsequent. Covenants. Provisos.</p> <p>Where property was insured, loss payable to trustee under policy containing clause “provided, that in ease the mortgagor or owner shall neglect to pay any premium due under this policy, the mortgagee (or trustee) shall, on demand, pay the same. Provided also that the mortgagee (or trustee) shall notify this company of any change of ownership or occupancy or increase of 'hazard, which shall come to the knowledge of said mortgagee (or trustee) . . . and the mortgagee (or’ trustee) shall, on demand, pay the premium for such increased hazard for the term of the use thereof; otherwise this policy shall be null and void.”</p> <p>Held, that the word “ provided ” in instruments of this character had a well-settled meaning, and construed in its natural and primary sense imported a condition and not an agreement, and there was nothing in the context which required it to be construed as a covenant.</p> <p>Held, further, that 'both clauses of the proviso were subsidiary to the main part of the mortgagee clause, and the words “ otherwise the policy shall be null and void ” were applicable to, and should be read with both provisos, and so read made both clauses conditions subsequent.</p> <p>Held, further, that the mortgagee clause constituted a separate contract between the company and mortgagee, entered into at the same time as the contract between the company and the mortgagor and based upon the same consideration, but it would not become active until ■some default by non-payment of the premium or otherwise, had been made by mortgagor; but on coming into effect, the rights of mortgagee against the company would be subject to certain conditions' subsequent, one of these being that if any part of the premium remained unpaid, mortgagee must pay it on demand, or it would lose its rights under its contract, without, however, being under any obligation to pay the unpaid premium if it preferred to let the policy lapse.</p>

<p> (1) Bills of Exceptions. Petition to Establish Truth of Exceptions. </p> <p>A petition filed under rule 13 of the Rules of Practice of the Supreme Court, to establish the truth of exceptions and of a transcript of evidence and rulings thereon and instructions to the jury, which does not specifically set out in the affidavit accompanying it, the rulings upon which the exceptions were based nor that the transcript was “ correct or incorrect as the case may be, and if incorrect, in what particular,” must be dismissed and additional affidavit filed more than thirty days after the filing of the bill of exceptions will not be received for- the purpose of covering omissions in the original affidavit.</p> <p> (2) Bills of Exceptions. Petition to Establish Truth of Exceptions. Change of Buie. </p> <p>While the court has power to alter its rules of practice relative to the prosecution of bills of exceptions, it is not certain that after steps have been taken in the filing and prosecution of a bill of exceptions it can s'o change a rule as' to give life and legality! to those steps and jurisdiction to itself, .but in any event it would not deem it advisable to change an apparently reasonable and -salutory rule, which has been enforced in numerous decisions because of a mere allegation that its enforcement would work an injustice in a particular case.</p>

<p> (1) Wills. Trusts. Tested Estate with Postponement of Possession. </p> <p>Testatrix bequeathed a moiety of her estate to her daughter A., and in ease of her death, to her ohjldren, and the other moiety in trust for the benefit of her son B., providing that so long as her husband survived there should be no division of the estate, and the income should be divided between her husband, the trustee and A., with provision that if the trustee should become satisfied at any time, that B. had reformed, he should transfer the trust estate to him, but if the trust continued to the death of B. the residue of the trust to his issue, and if no issue then to A., and further, if A. deceased, leaving no issue, her portion of the estate should pass to the trustee for the purposes of the trust, but if the trust estate had been transferred to B., then the portion of A. should pass to B., and if both A. and B. deceased without issue, then all of the estate to the next of kin of A.</p> <p>B. executed a deed of trust to pay the income to his wife O. during his lifetime, and upon his death to pay over the principal to C., or to such persons as he should by will appoint in the event of her death before him.</p> <p>B. deceased, leaving C. surviving, but leaving no issue. Held, that A. received if living at death of testatrix a vested interest subject to the provision postponing the time of coming into possession until the death of her father, and that the children of A. took no interest in this portion of the estate in case A. survived testatrix.</p> <p>Held, further, that the event of the death of A. contemplated in the later clause of the will providing in case of her death without issue that her portion should pass to the trustee, was to be referred to the lifetime of testatrix.</p> <p>(2) Spendthrift Trust.</p> <p>Held, further, that as to the moiety bequeathed in trust for B., the trust was so far modified that the trustee was' only, to receive one-third of the income during the life of .the husband; that this provision for B. was in the nature of a spendthrift trust, and upon the facts disclosed, it appeared that the trust continued until the death of B.</p> <p> (3) Trusts. Trustees. Death of Trustee. </p> <p>Held, further, that the mere fact that no new trustee was appointed after the death of the original trustee did not operate to terminate the trust, for, being a trust for the protection of B., it would be assumed there was cause for its continuance until his death.</p> <p> (Jf) Trustees. Powers. </p> <p>Held, further, that under the provisions of General Laws, 1909, cap. 259, secs. 5, 8-, a new trustee, had one .been appointed, would have had the same power and discretion as the original trustee under the will, although suoh power and discretion 'being annexed to the office of trustee would have passed to a succeeding trustee in the absence of such statute.</p> <p>Held, further that on the death of B. without issue, the' moiety in trust for him became the property of A.</p>

<p> (1) Mandamus. Corporations. Stools. Adequate Remedy at Law. </p> <p>Where from the facts the title of petitioner is unquestioned and an action at law does not afford an adequate remedy for refusal of a corporation to transfer stock upon the books of the company, mandamus is a permissible and proper remedy.</p> <p> (2) Mandamus. Corporations. Stools. Title. </p> <p>Mandamus cannot be resorted to to compel the transfer of stock, unless the legal right of petitioner is unquestionable.</p> <p> (S) Mandamus. Corporations. Stools. Adequate Remedy at Law. </p> <p>Since the passage of Article XII of Amendments to the Constitution, providing that the Supreme Court “ shall have power to issue prerogative writs, and shall also have such other jurisdiction as may, from time to time, be prescribed by law ” and of General Laws, 1909, cap. 272, see. 2, providing that the Supreme Court, “may issue writs of . . . mandamus . . . and all other extraordinary and prerogative writs and processes necessary for the furtherance of justice and the due administration of the law” if the circumstances of the case show, that a petitioner .has no other adequate legal remedy and that justice can be done only by mandamus, mandamus will lie, although such use of the writ may run counter to its use under the practice established by the common lawN.</p> <p> (Jf) Inspection of Boohs. Demand. </p> <p>Without evidence of a demand for inspection of the hooks of a corporation and of its refusal, petition for mandate permitting such inspection will 'be denied.</p>

<p> {1) Wills. Trusts. Absolute Power of Disposition. </p> <p>By testamentary trust testator directed the trustee to dispose of the net income of the trust estate as follows: A certain sum annually to the widow; to divide the residue into nine equal shares and to pay as often as once in six months one of said shares to each of eight of testator’s nine children, excluding one son, and upon the decease of each of said eight children to pay the share to which said child would have been entitled as said child should by will appoint, in default of appointment to the lawful issue of the child and in default of appointment and issue to testator’s then next of kin, omitting the excluded son and his descendants and (3) to pay the ninth share in whole or in part at such times as the trustee should select to the excluded son or his wife or to any child or children of such son or to any other person or persons whomsoever, in the uncontrolled absolute discretion or pleasure of the trustee.</p> <p>Upon the decease of the survivor of the widow and all of the nine children and when the youngest living grandchild should be 21 the whole principal of the trust should be divided into eight equal shares, to be set apart to relate to the eight children, to be paid in fee simple as said child might by will appoint, in default of appointment to the lawful issue of the child, and in default of appointment and issue, to testator’s then next of kin, the descendants of the excluded son being excepted.</p> <p>Held, that on the decease of the widow, the annual payments to which she would have been thereafter entitled had she lived, followed the destination of the several shares of residuary income, and did not pass to the estate of the widow. ></p> <p>Held, further, that the provision relating to the disposition of the ninth share of income was valid and amounted to the creation of an absolute power of disposition, imposing no trust or obligation with respect to its disposition, the use of the word “ trustee ” in this clause being merely descriptive, and this construction was not affected by the fact that testator coupled this power of disposition of a portion of the income with certain trust provisions, in view of his- obvious intent.</p>

<p>(7) Taxation. Waters. Flowage. Mill Privileges.</p> <p>Whether it be regarded as based on the right of eminent domain or as a legislative regulation of the common right of the different riparian proprietors to use the waters of a stream, the so-called “Mill Act ” does not work the destruction of the property which may be invaded in accordance with its provisions, but the statute contemplates that the property submerged shall remain as a valuable possession of the owner even though he has been deprived of its unobstructed enjoyment.</p> <p>(g) Taxation. Waters. Flowage. Mill Privileges.</p> <p>On a petition for relief against a tax, it appeared that petitioner was. the owner of a parcel of land with a dam and mill privilege, and of another parcel lower down the stream, where it ¡had erected a dam, thus-flowing out the mill privilege on the first parcel.</p> <p>Held, that without reference to the value of the added power which the use of this .first parcel had enabled petitioner to obtain at the lower parcel, the valuation of the first parcel made by the assessors of taxes should not be disturbed on the ground that because petitioner had seen fit to employ this land for purposes which were either more or less profitable than that for which it was suited, the petitioner had in that way destroyed certain elements of value which formerly pertained to it. In no proper sense could any of its elements of value be said to have been destroyed.</p> <p>(3) "Waiter Power and Rights. Taxation.</p> <p>Water power and water rights are not independently taxable; but as appurtenant to and an incident of some land. Land should be taxed with all its elements of value in the town where it is situated. If land upon a stream has’ such topography either natural or artificial as to give to the land the capacity to control the current of the stream, thus creating water power, these circumstances enhance,,the value of that land and furnish a basis for taxation, and this is true whether that capacity is employed to create water power to be used on that land or upon other land in another town or another State and also if such capacity of the land is not employed at all. If water power thus created is conducted to mills situated elsewhere and there applied, that circumstance- may reasonably be -regarded as increasing the val-ue of the mills receiving such power and may be considered in the taxation of such mills, but no element of value is thereby taken from the land where the power is created and transferred and made appurtenant to the mills where the power is used.</p>

<p>(I) Wills. Trusts. Vested and Oontmgent Remainders.</p> <p>Under a testamentary trust testator provided for the payment of net income “ To my wife during her life three-fifths, and to my daughter N. during her life two-fifths,” and “ on the death of my wife and when my son W. shall have reached the age of 28 years, I hereby direct my trustees to terminate said trust and distribute all my estate, two-fifths to my daughter 1ST., and one-fifth each to my three sons,” . . . “ if, however, my daughter N. be not then living, the trustee shall distribute all my estate equally, share and share alike, to my children, their heirs, administrators and assigns, the share of any deceased ■child to go to the heirs of the .body of said child, if any, the children of N. if any,- to take their mother’s share.” The widow' deceased, all four children surviving, W. being 24 years of age.</p> <p>Reid, that NT. received a vested remainder in two-fifths of the corpus, subject to being decreased to one-quarter in case she died before the termination of the trust and that each of the three sons received a vested remainder in one-fifth of the corpus, subject to being increased to one-quarter in case NT. died before the termination of the trust.</p> <p>Reid, further, that from the death of the wife to i!he expiration of the trust on W. reaching the age of 28, or having deceased prior thereto, the income from the three-fifths of the estate given to her for life, should not accumulate to increase the corpus, but should be paid as it accrued to the vested remaindermen, in the- proportion of two-fifths to N. and one-fifth each to the other's, the will failing to show any desire for accumulations of income.</p> <p>Held, further, that in the event of the death of N. leaving children prior to the termination of the trust, such children should share equally with the three sons and take one-quarter of the estate.</p> <p>Held, further that upon the death of W. before reaching the age of 28, the wife having already deceased, the trust would terminate.</p> <p> (B) 'Vested and Contingent Remainders. </p> <p>The law strongly favors vesting and will not regard a remainder aB contingent, in the absence of very decisive terms of contingency unless the provisions or implications of the will clearly require it, and words expressive of future time are to be referred to the vesting in possession if they reasonably can be, rather than to the vesting in right.</p>

<p> (1) Criminal Law. Embezzlement. Evidence. </p> <p>On an indictment for embezzlement, where it appeared that defendant had been instructed, upon commencing his duties for -his employer, to get from his predecessor, as agent, instructions as to the method of carrying on the business, and was instructed as to making and reporting sales and collections, testimony of the former agent as to such instructions was admissible, although such instructions were given while defendant was working under a contract which was subsequently modified in some respects and the embezzlement was alleged to have been committed after such modification, since the 'modifications did not relate to the reports, collections and deposits which defendant was instructed to make and under which instructions he undertook to act.</p> <p>(£) Criminal Law. Embezzlement. Evidence.</p> <p>On an indictment for embezzlement, admission of an inventory of flour made by a bookkeeper of a warehouse company, and of slips of teamers showing deliveries, for the purpose of showing the falsity of a statement made by defendant, even if improper as evidence, would not constitute reversible error where there was other testimony establishing the falsity of defendant’s statement, which defendant did not dispute.</p> <p>(3) Criminal Lmo. Embezzlement. Evidence.</p> <p>On an indictment for embezzlement of money representing collections not accounted for and sales not reported, objection to evidence tending to show the number of barrels of flour on hand in a warehouse, on the ground that the issue, was not the embezzlement of flour, is without merit, for the number of barrels disposed of and unaccounted for by defendant would form a basis for ascertaining the amount of money covered by the embezzlement.</p> <p> (4) Criminal Lata. Embezzlement. Del Credere Factor. Contracts. </p> <p>In construing an agreement, the intention of the parties must prevail unless inconsistent with some rule of law, and such intention must be gathered, not from a portion of the contract, but from the whole taken together.</p> <p>(5) Criminal Law. Embezzlement. Del Credere Factor.</p> <p>Where goods were shipped direct by the employer to a warehouse, where they were held in the name of employer and subject to its orders, and defendant, after making a sale, was permitted by employer to withdraw from stock an amount to fill the order, and bill was rendered in name of employer, with notice stamped on it to pay the amount to defendant ?.s agent of seller, and on receipt of payment defendant was obligated under his contract to deposit it in full in a bank to the credit of employer without any deduction for expenses or salary, defendant was the agent of employer and not a factor, and the fact that under certain conditions he was to be held responsible for interest on overdue accounts, and in some instances for payment of the principal, did not change his position.</p> <p> (6) Embezzlement. Del Credere Factor. </p> <p>A factor does not acquire the right to appropriate to his own use the money which he collects even if he has guaranteed the account.</p> <p>(7) Del Credere Factor. Embezzlement.</p> <p>A person who consigns his goods to a del credere agent for sale does not part with his title, but remains the owner until sold; and when the proceeds of the sale are received by the agent they belong specifically to the principal and do not become a part of the agent’s assets, and if the agent converts such proceeds, he is guilty of embezzlement.</p> <p>(S) Tax lielurns. Evidence.</p> <p>Under Pub. Laws, 1909, cap. 769, § 15, information as to returns made to the State Board of Tax Commissioners cannot be divulged except upon order of the court, and such inquiries arising in a trial should be ruled out unless it appears that the information sought is material to the party’s case, and where such materiality does not appear the act of the trial court in excluding the evidence was proper.</p>

<p> (1) Mechanics Lien: Separate Buildings. </p> <p>Where estate of respondent in a proceeding for mechanic’s lien comprised two adjoining lots, one conveyed several years after the other, with a chui'ch building on the first lot and a Sunday School building on the other lot, the two buildings .being used to carry on customary church work and for convenience being connected by a passageway providing an unexposed means of communication, light, heat and water being supplied to the Sunday School building by means of wires, steam, and water pipes extended from the church building through the connecting corridor, an account lodged for the purpose of commencing legal proceedings is not defective because it does not specify the items chargeable to each building, since the structures on the above facts cannot be regarded as separate and independent buildings.</p> <p>(8) Mechanic?s Lien. Filing Account. Abandonment of Previous Account. i</p> <p>Where petitioner had filed several defective accounts, his filing a later account within the required statutory time, on which account he took the further, statutory steps in the establishment of his lien, is evidence of an intention to abandon all accounts previously filed.</p> <p>(3) Mechanic’s Lien. Abandonment of Account.</p> <p>A petitioner for mechanic’s lien is not required to stand upon a defective account which he has filed, but may abandon it and file another account within the statutory period.</p> <p> (If) Mechanics Lien. Time. </p> <p>Where the statute fixes a period within which- proceedings may ,be instituted for the establishment of a mechanic’s lien, one who deals with the estate -before its expiration must do so at his peril.</p>

<p>(1) Direction of Verdict.</p> <p>A verdict should not he directed for a defendant if on any reasonable view of the testimony a plaintiff can recover.</p> <p>(3) Direction of Verdict. Preponderance of Evidence. New Trial. Credibility of Witnesses.</p> <p>The question as to the credibility of witnesses is in the first instance for the jury and not for the judge presiding; nor is the justice warranted in directing a verdict in accordance with what he thinks is the preponderance of the evidence. Upon motion for new trial made by a party who is dissatisfied with the verdict, a justice who presided at the trial is justified in considering, and it is his duty to consider, the credibility of witnesses, and what, in his view, is the preponderance of the evidence; if he .believes the verdict to be unjust he should set it aside and grant a new trial; he should not, however, direct a verdict upon such grounds, but only upon the ground that there, is no legal evidence which would justify a contrary verdict.</p> <p>(3) Credibility of Witnesses.</p> <p>Under our constitution and law, when the testimony is conflicting the questions of the credibility of witnesses and the preponderance of evidence must in the first instance be determined by a jury, as also they must be finally determined by a jury.</p> <p> ('/.) Negligence. Imitation. Ways. </p> <p>In a negligence action there was evidence from, which it might be found that a way known as “ Bangor Street ” was laid out over defendant’s land. Across the easterly portion of the way a gully extended beyond the lino of the way and on other land of defendant. The way was laid out as an ordinary public street, with a sidewalk slightly raised above the surface of the roadway and with a paved gutter of regulation width. The roadway had a hard, oven surface except for the gully, which had existed for about a week or two before the accident; on a post at the corner of the way there was a street sign of the ordinary character.</p> <p>. The way had remained in the same general condition for about six years and was generally regarded as a public highway, and had been constantly used dajr and night by persons desiring to pass between a public highway and a parkway and to sections north of the parkway. No notice had ever been given by the owner that it was -a private way or that free passage was not permitted.</p> <p>Held, that the evidence presented proper issues for the jury as to the extent of the permission or the invitation given by defendant and his predecessor in title for the public use of the way, and defendant having been the owner of the premises for more than a year before the accident must be held to know of the public use of the way by day and night, and if such evidence was believed by the jury it might be found that the owner knew that the condition in which he maintained the way created the natural belief in the public that it was invited to use it and an implied invitation to continue to use it in the manner in which it had been used.</p> <p>(5) Invitation. Ways.</p> <p>If the owner of land by invitation, express or implied, induces a person to come upon it and cross over it, he must use ordinary care to keep that part of it to which such person is invited safe for passage.</p> <p> (6) Invitation. Ways.- Parks. </p> <p>Where an ordinance of a city provided that a parkway should be open to the public only between sunrise and sunset, whatever may have been the status of a person while he was in the parkway between sunset and sunrise, the duty of an owner of land would remain unchanged to use reasonable care for the safety of a person whom he bad expressly invited after sunset and before sunrise to pass out of. the parkway onto a way running across his land or across such way into the parkway.</p> <p>(7) Ways. Invitation.</p> <p>An implied invitation to cross over premises may be as broad and unrestricted as any which might be expressed, if from the circumstances it appears to be unlimited.</p> <p>(S) Ways. Invitation. Questions for Jury.</p> <p>The extent of an invitation to use a way and the limitation of such invitation by the owner are questions for the jury.</p> <p>(9) OrdmaAices. Parks. Invitation.</p> <p>An ordinance of a city provided that a parkway should be open to the public only between sunrise and sunset, and in an action to recover for death .of intestate caused by the wrongful act of defendant in negligently permitting a gully to remain across a way running through his ■ land, which way he had invited the public to use, a verdict was directed for defendant on the ground that the ordinance rendered the passing through the parkway between sunset and sunrise illegal, and therefore there could be no implied invitation on the part of defendant to travel over that part of the way.</p> <p>The way in question extended from a public highway to a street known as “ Rosebank Avenue.”</p> <p>Held, that if such street was a public highway running through the park the ground on which the motion to direct was granted had no foundation in fact, and if the street was not a public highway but a part of the parkway, from the facts which the jury might find, it could not be said as a matter of law that any implied invitation of defendant for the public use of the way was limited by the terms of the ordinance.</p>

<p> (1) Negligence. Carriers. </p> <p>While plaintiff was walking upon a sidewalk, -a street car of defendant .behind the plaintiff, in passing around a curve, overlapped the sidewalk and knocked plaintiff down, injuring her. There was evidence from which the jury might find that the car was operated without warning to plaintiff when the danger to her must have -been apparent. On ■ exceptions to refusal of the justice presiding to grant a new trial, after verdict 'for plaintiff; — Held, no error.</p> <p> (2) Negligence. Damages. Mental Suffering. Injury to Pregnant Woman. </p> <p>The foetus is a part of the person of a pregnant woman, and if by reason of the nature and circumstances of an injury to her person caused by the negligence of a defendant she suffers apprehension and anxiety as to the effect of the injury upon the foetus, such mental suffering is an element of her damage as a natural and proximate result of the negligence which caused the injury, and although she should not -be given damages for the child’s misfortune during life, resulting from an injury to the foetus, nor for her own subsequent mental distress -during the lifetime of'the child occasioned by its deformity, she is entitled to damages for her distress -and disappointment at the time of the birth, because through defendant’s negligence she has- been deprived of the right and satisfaction of bearing a sound child, if it be found that the child’s deformity is due to the injury she received through the defendant’s negligence.</p>

<p>(1) Elections. Taxation.</p> <p>A tax for personal property is not illegally assessed .because the personal property, tangible or intangible, for which it was assessed, was not described on the assessment roll, and hence a person so assessed who has paid the tax is not disqualified to vote in the election of members of a city council, under the provision® of Cons. E. I. Art. II, § 2.</p> <p> (2)' Elections. Taxation. Illegal Assessment. </p> <p>Qttaere: If a person who has paid a tax assessed upon his property valued in the assessment in excess of $134 is not qualified as a voter, regardless of any irregularity or illegality in the assessment of the tax.</p> <p>(S) Quo Warranto.</p> <p>Whether a petition in equity in the nature of quo towranto brought by one not a claimant to the office of councilman; although a candidate at the election, for the purpose of having the election of respondent declared null and void, should have been brought in the name of the attorney-general, is not decided.</p>

<p> (1) Deceit. </p> <p>Where defendant by fraudulent representations induced plaintiff to enter into a contract with him for the sale of land, .as a result of which plaintiff paid him $1,000 in cash and gave him a four months note for $400, and the evidence showed that in further fraud of the plaintiff the defendant did not intend to procure for him the land which defendant had promised to purchase, plaintiff was- not required to make payment of the note before suing in deceit for the damages already suffered by the fraud.</p>

<p>(1) Master and Servant. Negligence. Apprehension of Danger. Assumed Risks.</p> <p>Where a servant, although apprehensive, was not sure of the danger, and being under the direct supervision of his master and calling his master’s attention to the possible danger and receiving his assurance that it was all right, obeyed his master’s direct order and was injured as a result of such obedience, and it appeared from the testimony of plaintiff that never at any time had plaintiff been called upon'to use his own judgment as to the proper length in the cutting of fuses for blasting, that he had no experience as to how long it would take a given length of fuse to burn, and it did not appear that he had ever seen or known of a premature explosion or that he had any knowledge as to how short a fuse could be used safely, the questions whether plaintiff assumed the risk and whether he was guilty of contributory negligence were questions of fact, and it was not error to refuse to direct a verdict for . defendant.</p> <p>Vincent, J., dissents.</p>

<p>(1) Tarnation. Business Corporation. Carrying on Business for Profit. A corporation was chartered “ for the purpose of -buying, selling, leasing, holding and improving real and personal property, bathing privileges and other rights, and of undertaking such measures as may promote the welfare of the city of Newport as a resort for summer residents and owners of cottages, and for. the transaction of any business connected therewith and incidental thereto,” with the powers and subject to the liabilities set forth in cap. 177, Gen. Law's, 1896.</p> <p>The charter allowed the corporation to hold and convey -real and personal property to an amount not exceeding $200,000, with provision for shares and for the transfer of such shares. The constitution created three classes — stockholders, who were owners of the property; members, who were also owners but who must be elected to -membership and pay dues, etc., and subscribers, who were allowed temporary use of the social privileges. The constitution also provided for the building and conveyance of bath houses to the members-, which conveyance was by deed. Prom- -its revenue derived from dues and privileges the corporation had acquired a surplus which it had invested.</p> <p>Held, that no intention on the part of the Legislature could be found by the use of the words “ a corporation carrying on business for profit ” in the Tax Act, Pub. Law's, 1-912, cap. 769, to impose the tax on a class of corporations different from the class described as “ Business corporations ” in Gen. Laws, 1896, cap. 176 (now Gen. Laws, 1909, cap. 212), But even if this were so, on the above facts the corporation was- “ carrying on business for profit,” and the tax was properly assessed.</p> <p>Vincent and Baker, JJ., dissenting.</p>

<p>Bill in Equity for construction of will, der G-en. Laws 1909, cap. 289, § 35. Certified no-</p>

<p>(7) Exceptions. Joint Indictments.</p> <p>Where, on a joint indictment, tlie several defendants were each represented by Iris own counsel, the defences behig separate and not joint, an exception taken by one defendant, to the denial of a motion, cannot be subsequently relied on by another defendant in -his bill of exceptions, where he did not raise the question, join in the motion or, as appears from the record, was in any way interested therein.</p> <p>(2) Exceptions. Joint Indictments.</p> <p>Under Gen. Laws, 1909, cap. 298, §§ 9 and 17, a defendant seeking to avail -himself of exceptions taken in the superior court'must have taken the exceptions there, on his own behalf.</p>

<p>(1) Contracts. Testamentary Agreements. Wills. Partnership.</p> <p>An agreement .between parties engaged in business as co-partners, that in the event of the death of one of the parties the entire assets of the business should become the property of the other, who obligated himself to pay a 'Stipulated sum therefor to the heirs at l:aw of the deceased, is invalid, being testamentary in character, but not having been executed in conformity with the provisions of the chapter of wills, is also bad as a will.</p> <p>(2) Contracts. Testamentary Agreements. Partnership.</p> <p>Under an agreement between co-partners that in the .event of the death of one the other should acquire the entire assets of the business, making payment to the heirs at law of deceased, which agreement was invalid as being testamentary in character, the fact that the surviving partner took possession of the partnership property after the death of his partner is not significant, as he was entitled so to do, being accountable to the representative of hiis partner’s estate for its share of the surplus assets, if any. .</p> <p>(3) Writs of Error.</p> <p>On writ of error, affidavits as to happenings at or about the time of decision in a district court will not be considered, as: under the writ only such alleged errors as appear upon the face of the record will be reviewed.</p>

<p>(J) Writs. Constables. District Courts. Increase of Ad Damnum. Where an action was commenced in a district court, with an ad damrmm of one hundred dollars, service on defendant being made by a constable, the district court may properly permit an increase of tbe ad damnum, within its jurisdictional amount.</p>

<p>(1) Principal and A.gi nt. Undisclosed Principal.</p> <p>The selling agent of a corporation engaged in the automobile business, duly authorized to conduct its business,, can convey good title to a bona fide purchaser for value of an amtcumobile belonging to the corporation, although he may have failed to disclose the fact that in. making the sale he was acting as the agent of the corporation.</p>

<p> (1) Mortgages. Sale Under Junior Encumbrance. </p> <p>Where property is sold by authority of the power of Rale in a second mortgage, the junior mortgagee can sell only what was conveyed to •him, that is the title of the mortgagor, namely the equity of redemption, and the first mortgagee being under no obligation to take any action, the fact that it paid no attention to a sale under the second mortgage cannot in any way affect its rights.</p> <p>(2) Mortgages: Subrogation.</p> <p>Where property was sold under the power of sale in a second mortgage, subject to the first mortgage, and the purchaser thereafter voluntarily paid off the first mortgage without any agreement therefor with either the mortgagor or .first mortgagee, but with the intention to extinguish it in order to make a saving in the- payment of interest, he is not entitled to be subrogated to the rights of the first mortgagee but must account to the mortgagor for the surplus of the proceeds of the sale.</p>

<p>(I) Negligence- Res Ipsa Loquitur.</p> <p>Assuming the doctrine of res ipsa loquiiivr to apply to a personal injury action, a charge to the jury cannot be regarded as adequate where attention, is not .called to the particular circumstances: from which the liability of the defendant might be inferred.</p> <p>(g) Negligence. Res Ipsa Loquitur. Escape of Gas.</p> <p>While a gas company is required to exercise care in laying and maintaining its, pipes in the streets commensurate with the proper handling and control of the dangerous instrumentality in which it deal®, including the guarding of the pipes when streets’ are opened by municipal corporations and by due diligence in guarding against injurious consequences arising from, leales and other defects, when discovered, it is not an insurer, for with the proper exercise of ail these precautions leakages of gas m'ay occur from an unlooked for cause without fault on the part of the company, and the mere proof that a leak of gas existed or that an explosion, occurred is not of itself sufficient to establish liability and the rule of res ipsa loquitur does not apply.</p> <p> (S) Negligence. Res Ipsa Loquitur. Escape of Gas. </p> <p>In a personal injury action caused by an explosion of illuminating gas, the escape of gas was evidence for the jury to consider upon the question of negligence; its weight or force was for them to determine in connection with any other evidence in the ease pertinent to that question.</p> <p> (Jf) Procedure. Charge to Jury. Reversible Error. </p> <p>An instruction which implies the existence of facts of which there is no evidence, or which have not been proved, is calculated to mislead, the jury and is reversible error.</p>

<p>(7) State Board of Wealth. Certiorari. Appeal.</p> <p>Where no exceptional ease of hardship is- presented to warrant a review by certiorari, the remedy of a petitioner whose license to practice medicine has been revoked J>y the State Board of Health, without proper or adequate evidence for such action, is by appeal under the provisions of Gen. Laws, 1909, cap. 193.</p> <p>(g) Certiorari. Transcript.</p> <p>A transcript of testimony taken in proceedings before the State Board of Health, used by the parties in a hearing upon a petition for writ of certiorari, will be referred to by the court relative to the evidence produced before the Board.</p> <p>(3) Certiorari. Appeal. Practice of Medióme.</p> <p>Where an appeal is provided from the decision of the State Board of Health revoking .a license to practice medicine, the court cannot review by certiorari the question of the adequacy of the evidence.</p> <p>(J¡) Certiorari. Appeal. Practice of Medicine.</p> <p>Where an appeal from the decision of the State Board of Health revoking a license to practice medicine vacates the proceedings before the Board, bringing the case before the court for a trial on the merits de novo, the fact that such trial may impose some additional expense on the petitioner does not differentiate it from the ordinary case of an appeal from the decision of an inferior tribunal and does not warrant certiorari proceedings.</p>

<p>(!) Bills and Notes. Conditional Delivery.</p> <p>Under the provisions of Gen. Laws, 1909, cap. 200, § 22, the maker of. a promissory note, in an action by the payee, is entitled to show lack of consideration, in that it was made, and delivered entirely for the accommodation of the payee and under an agreement with him and that it was not intended hy the parties that the property in the note was to be transferred by its delivery to the payee.</p>