Volume 42 — Rhode Island Reports

<p>Appeal from order of Public Utilities Commission.</p>

<p>(I) Allowance of Cost of Transcript. Costs.</p> <p>Where a verdict had been set aside by the trial justice and the exceptions of plaintiff to such decision overruled and the case remitted to the Superior Court where on a second trial a verdict was returned for plaintiff, the allowance of the cost of the transcript of testimony at the first trial, used in the proceedings on the bill of exceptions, as a part of the taxed costs of the case, was discretionary with the Superior Court.</p> <p>(⅞) Costs. Notice.</p> <p>No notice to the opposing party is required under the statute, of an application for an allowance of the costs of a transcript of testimony.</p> <p>(S) Costs. Notice.</p> <p>While it is better practice to give notice to the opposing party of an application for the allowance of the costs of a transcript of testimony, particularly in a case where the application is made to a judge who did not preside at the trial, and while the fact that no notice had been given in some circumstances might warrant the finding that there had been an abuse of discretion in granting the motion, yet, in a case where.the record was such as to present a fairly complete history of the case, the decision of the justice who heard the motion and allowed the costs of the transcript will not be disturbed.</p> <p> (4) Costs. Transcript of Testimony. Review of Decision Allowing Costs. </p> <p>Where a motion for the allowance of the costs of a transcript of testimony was made to a justice who was not the one who presided at the trial, and the motion was granted, such motion being addressed to his discretion, his decision is not subject to review by another justice.</p>

<p>(1) Elections. Ballots. Distinguishing marks.</p> <p>Where a voter after making a cross in the square at the right of a name, blackened the square with his pencil partially concealing the cross, and placed a cross in the square opposite the name of another candidate, while the act may not have been with any actual wrongful intent, the ballot was rendered capable of identification and was properly rejected.</p> <p> (2) Elections. Ballots. Distinguishing marks. </p> <p>A ballot containing a cross entirely without the circle and in the blank space between the circle and the emblem was properly rejected.</p> <p>⅛) Elections. Ballots. Distinguishing Marks.</p> <p>On a ballot the voter placed a cross in the circle and also a cross in the square opposite each name on the party ticket. The crosses opposite the names bore evidence of an attempt to erase them, although they were visible. On the same ballot the voter failed to vote in the square assigned for voting on a proposition submitted to the electors, but instead partially blotted out with his pencil the word “no.”</p> <p>Held, that the ballot was properly rejected as bearing distinguishing marks.</p> <p> (4) Elections. Ballots. Distinguishing Marks. </p> <p>A ballot which contained two very fine and somewhat dim pencil marks, apparently inadvertent touches of the pencil during the operation of marking the ballot was entitled to be counted.</p> <p> (5) Elections. Ballots. Distinguishing Marks. </p> <p>Ballots, one of which contained a cross within the circle and a pencil mark in the immediate vicinity of the circle, and another whereon there was a somewhat faint pencil line extending across the circle, the circle not having been used, the voter placing crosses in the squares at the right of the names, were entitled to be counted, the marks apparently being inadvertently made during the marking of the ballots.</p>

<p> (1) Elections. Ballots. Board of Canvassers. </p> <p>A town council sitting as a board of canvassers counted the votes for town council, and found that there had been no election for the office of first councilman. The other four new members qualified. On certiorari, certain ballots rejected by the board of canvassers were found to be legal ballots.</p> <p>Held, that the members of the former town council still comprised the board of canvassers upon whom devolved the duty to complete their record in the respects indicated by the court.</p> <p> (8) Elections. Ballots. Board of Canvassers. </p> <p>Where six ballots were rejected by a board of canvassers as bearing identification marks, and on certiorari the court found that three of such ballots were improperly rejected, no claim being made as to any other ballots, the count as to the other ballots stands, and the only matter devolving on the board of canvassers is to deal with the ballots improperly rejected and to make its declaration in accordance with the opinion of the court.</p>

<p>Petition por Certiorari.</p>

<p>(1) Railroads. Open Gates.</p> <p>The closing of the gates at a railroad crossing is simply one means of notifying a traveller of danger and the traveller cannot rely exclusively on the fact that the gates are open, but must to some extent use his senses before going on to the railroad track.</p> <p>(¡8) Railroads. Open Gates.</p> <p>The fact that crossing gates are open is an important fact for consideration in the determination of the question whether due care was exercised by a traveller. The weight properly tobe given to such fact necessarily will vary in different cases and will be affected by different considerations. If the facts are controverted or if fair-minded men could draw different conclusions from facts which are not controverted the question of contributory negh'gence would be properly submitted to a jury.</p> <p> (S) Railroads. Open Gates. Contributory Negligence. </p> <p>In an action for death of- plaintiff’s intestate caused by a collision at a grade crossing, evidence considered and</p> <p>Held, that as plaintiff had. failed to show that deceased was in the exercise of due care, a nonsuit was properly granted.</p>

<p>(1) Demurrers.</p> <p>Exceptions based on the overruling of demurrers will not be entertained, where the decision overruling the demurrer permits the action to proceed to a determination of issues of fact tendered by the pleadings, until after these issues of fact have been tried.</p> <p>(⅞) Foreign Corporations. Power of Attorney. Contracts. Receivers.</p> <p>Receivers of a foreign corporation which has not filed the power of attorney under Gen. Laws, 1909, cap. 300, §§ 42-44, cannot maintain in the courts of this State an action to recover money arising out of a contract made by the corporation within this State.</p>

<p> (1) Taxation. Corporate Excess. Corporations. Directors. Stock. </p> <p>Maine corporation carrying on business both in this State and in the State of New York, transferred its entire plant and assets in the State of New York to a newly organized New York corporation and received as a consideration therefor the entire capital stock of the corporation and $1,400,000 in bonds. Pour of the five directors of the New York company were directors of the Maine company. On the question of the right of the Maine company to a deduction of the value of the New York tangible property from the Maine company’s corporate excess under the Tax Act of 1912.</p> <p>Held, that the legal effect of the transfer was not changed by the fact that the Maine corporation owned all of the capital stock of the New York corporation, but by the sale of the New York property the Maine corporation ceased to be the owner of such property and consequently was not entitled to a deduction for the value thereof.</p>

<p>(1) Elections. Payment of Tax.</p> <p>Under the provisions of Cons. R. I. Art. VII of amendments, Sec. 1, “no person shall at any time be allowed to vote in'the election of the city council of any city . . . unless he shall within the year next preceding have paid a tax assessed upon his property therein . . . ,” the payment within the year of a tax which was in arrears and as to which the taxpayer was in default before the beginning of such year, is not sufficient. Andrews v. Sullivan, 36 R. I. 137, explained.</p> <p>(⅞) Elections. Payment of Tax.</p> <p>Gen. Laws, 1909, cap. 7, § 22, as amended by Pub. Laws, cap. 640, approved August 22, 1910, providing that no person claiming the right to vote upon payment oí a tax, for members of a city council shall be admitted to vote by the boards of canvassers, unless upon the production of a certificate that before the sixth day preceding the day of such voting he has paid such tax assessed against him for and within such year, is not unconstitutional as being in derogation of Cons. R. I. Art. VII of amendments, Sec. 1, providing that “no person shall at any time be allowed to vote in the election of the city council of any city . . . unless he shall within the year next preceding have paid a tax assessed upon his property therein . . .”</p> <p>(S) Certiorari.</p> <p>Where respondent has not made return to a writ of certiorari but has moved to dismiss the writ, and it appears upon the allegations of the petition that the record in question should not be quashed, the proper order to enter is not for quashal or dismissal of the writ but that the same be superseded.</p>

<p> (1) Contracts. Good Will. Improper Solicitation of Business. </p> <p>Where a vendor after disposing of the good will of a business interfered with • the vendee’s rights and sought to divert the business from the vendee, for his own benefit, such action amounts to a violation of the contract on his part, and he is not entitled to recover that portion of the contract price appertaining to the good will.</p>

<p> (1) Equity. Pleading. Cross-Bill. </p> <p>The office of a cross-bill is to obtain affirmative relief upon the case stated in the bill and not to obtain relief as to other matters.</p> <p>(⅞) Equity Pleading. Replication.</p> <p>Allegations of matters rendered necessary by the answer to a bill in equity, should be made by way of amendment to the bill and not by replication, under equity rule No. 24.</p> <p> (3) Deeds. Change of Name. </p> <p>Where a deed described a person by a different name than the one she was known by and she could neither read nor write and executed the deed by making her mark, such instrument in itself does not furnish satisfactory evidence of an intention on her part to change her name or that she knew that it had been incorrectly stated in the instrument.</p> <p> (4) Attachment. Record Title. Pleading. Misnomer. </p> <p>Record title to premises being in D. L., action was brought and the interest attached under the name of E. L. The officer’s return showed that service was made upon the defendant named in the writ but the return did not show that the person served as E. L., was in fact D. L.</p> <p>Held, that the record failing to show that D. L. was actually served with process, the further proceedings under execution sale were fatally defective.</p>

<p>Petition under Workmen’s Compensation Act.</p>

<p>Probate Appeal.</p>

<p>Petition for appointment of a receiver. Heard on appeal from a decree of the Superior Court as To certain priority claims.'</p>

<p>(1) Statute of Limitations. Judgments.</p> <p>A part payment does not interrupt the statute of limitations in the case of a judgment.</p>

<p>Mechanic’s Lien.</p>

<p>{!) Banks. 'Deposits. Trust Funds.</p> <p>An action to recover a deposit cannot be maintained against a bank which had taken over the assets of a former bank where plaintiff had originally made the deposit, where there is no evidence that the amount deposited by plaintiff ever came into the possession of defendant nor any evidence tending to show that defendant assumed all the obligations of the first bank or any obligations other than those arising from its undertaking to deal with the deposits coming into its possession.</p> <p> {$) Banks. Deposits. Trmt Funds. </p> <p>Where plaintiff made a deposit in a bank which subsequently transferred its assets to another bank and went out of existence but prior to such transfer the first bank paid out the deposit'to someone having possession of the pass book, the second bank cannot be held hable by plaintiff as the trustee of a fund which never came into its possession.</p>

<p>Bill in Equity by executor for construction of will. Certified under Gen. Laws, 1909, cap. 289. § 35.</p>

<p> (1) Carriers. Negligence. Last Clear Chance. </p> <p>In applying the doctrine of the last clear chance, the duty of one party to take action to avert the consequences of the.negligence of the other, does not arise until the peril of the negligent party is or should be apparent to the other.</p> <p> (2) Carriers. Negligence. Last Clear Chance. </p> <p>Where intestate was driving an automobile truck along, a highway in a country district, at a speed of six or seven miles an hour, and at a distance of 200 feet from the tracks of an electric road had an unobstructed view of the tracks, for about 1,200 feet in the direction a car was approaching at a high rate of speed, and in fact saw the car, but without changing his speed crossed the easterly track and drove upon the westerly track where he was struck by the car, the negligence of intestate being admitted, in applying the doctrine of the last clear chance, to these facts, the motorman was entitled to assume that intestate saw the car and would stop before reaching a position of danger, and intestate must be held as a matter of law to have been still in a place of safety until he had reached a position quite near the westerly track and until he had passed that point the motorman was under no obligation to take action for his safety.</p>

<p> (1) Bills of Exceptions. Motion to Dismiss. </p> <p>Where counsel claimed that no time was fixed by the court for hearing on the bill of exceptions of the adverse party and that no notice was given him of any hearing as required by rule 31 of the rules of practice of the Superior Court, it was his duty upon discovering that the case had been removed for review and that the transcript had been allowed by the trial justice, if he claimed that such allowance was irregular or prejudicial to his client, to raise such question without further delay and where he waited at least three months, until such lapse of time had rendered it impossible to establish through the recollection of the court and counsel for appellant definitely and conclusively the procedure which was followed, a motion to dismiss the bill will be denied.</p> <p> (&) Bills of Exceptions. Allowance. </p> <p>Since neither the trial court nor the clerk is required by law to make written record of the facts relative to fixing a time for hearing on allowance of a bill of exceptions or of the giving of the notice to parties of the hearing, where bills are allowed on oral statement of counsel to the court, either the court or clerk should make a record of the giving of notice, of the appearance of parties or their waiver of the right to formal notice and to be heard.</p> <p> (S) Bills of Exceptions. </p> <p>Where the appellant’s bill of exceptions and transcript were properly allowed within the statutory time, appellant was under no duty to see that the trial justice gave the appellee a hearing and notice thereof, but it was within the power of appellee if he had followed the record to have made timely objection to the action of the court in allowing the bill and transcript without a hearing, and a statutory remedy was provided by Gen. Laws, 1909, cap. 298, § 21, for his relief. As appellant followed the travel of the case and appellee did not, if either party is to suffer from failure of the court to observe statutory conditions it should not be appellant.</p>

<p>(1) Scire Facias against Bail. Discharge of Bail.</p> <p>By Gen. Laws, 1909, cap. 324, § 2, it is provided that bail in a civil action may discharge himself by committing his principal to jail; by paying or tendering the costs which have accrued; by leaving with the keeper of the jail a certified copy of the original writ and by giving to the plaintiff or his agent or attorney of record notice in writing of the time and place of the commitment within six days after making the Same.</p> <p>Held, that the performance of each of the acts so required was essential and was an indispensable prerequisite to the discharge of the bail.</p> <p>Held, further, that the provision in regard to the six days applied only to the giving of notice and was a limitation of time imposed on the bail and there was nothing in the statute to warrant the implication that this provision was intended to effect a stay of proceedings by the plaintiff for such time after commitment of the principal.</p> <p>(⅞) Scire Facias against Bail. Discharge of Bail. Judgment. Default.</p> <p>Where in an action of scire facias against bail, defendant was defaulted, plaintiff was entitled under Gen. Laws, 1909, cap. 294, § 1 to have judgment entered at once and the liability of the bail was established by the entry of judgment, and if the bail desired to discharge himself from liability the burden was upon him to take the prescribed statutory procedure before the final entry of judgment, and only the complete and timely fulfillment, of all the conditions imposed by statute upon him before the entry of final judgment would discharge him, but when judgment has been duly entered the power of the bail to discharge himself had ceased.</p> <p> (S) Discharge of Bail. Payment of Costs. </p> <p>Gen. Laws, 1909, cap. 324, § 2, provides as one of the conditions by which bail in a civil action may discharge himself from liability, “paying or tendering to the creditor or his attorney the costs if any which shall have accrued on a writ of scire facias against him.”</p> <p>Held, that the costs which have accrued before judgment need not be taxed by the court in the first instance but bail must pay the same or make sufficient tender.</p>

<p>(1) Statute of Frauds. Memorandum.</p> <p>A memorandum under the statute of frauds is insufficient in an action against the person to be charged, where it is not signed by the seller and he is not mentioned therein either by name .or by any description by which he call be identified and it refers to no other writing by which he can be identified.</p> <p>(⅞) Statute of Frauds. Memorandum.</p> <p>Where the memorandum under the statute of frauds does not mention the name of the vendor and there is no description of him therein, oral testimony to show who he is, is inadmissible.</p> <p>Where there was nothing in the memorandum by way of description of the vendor, nor any reference to any check or checks to be given in payment or to any other paper or document, parol testimony was inadmissible to show that the payee of two checks accepted as payments under the memorandum was the vendor, so that the checks and memorandum could be read together as comprising the memorandum required by the statute of frauds.</p> <p> (S) Statute of Frauds. Memorandum. </p> <p>Where husband and wife, owners of the property in question declared upon an agreement for the purchase of the same, checks payable to the husband and claimed by him to have been given as payments under a memorandum of sale without any evidence that he was the “lawfully authorized” agent of his wife to make sale of her property, fail to show that the husband and wife were the vendors of the property, even were parol evidence admissible in the condition of the memorandum for the purpose of identifying the vendors.</p>

<p>(1) Certification of Questions. Questions of Law and Fact.</p> <p>The question whether it is the duty of a town to keep its bridges in repair and in safe condition for the passing thereon of motor trucks of the weight of ten tons, is a mixed question of law and fact; whether such weight is a reasonable one being a question of fact to be submitted to the jury under proper instructions.</p> <p> (8) Municipal corporations. Duty to Maintain Bridges. Motor Trucks. </p> <p>Municipal corporations are under the statutory duty of maintaining public bridges of sufficient structural stability and in such a state of repair that they will sustain the weight of such loads as in the circumstances may reasonably be placed upon them. What is reasonable care required of a town or city in the circumstances of a particular case and what is reasonable weight in a vehicle are questions of fact for the jury.</p> <p>(S) Automobiles. Duty to Keep Highways in Repair. Municipal Corporations.</p> <p>As to a defect in a highway or bridge, which would be as likely to cause injury to an ordinary horse-drawn vehicle as to an automobile, a municipal corporation under its statutory obligation to keep such highway or bridge in repair, will be equally liable for damages to an automobile or to an ordinary vehicle, resulting from such defect.</p> <p> (4) Duty to Keep Highways in Repair.- Municipal Corporations. Injuries Peculiar to Automobiles. </p> <p>The question as to the obligation of a municipal corporation in the absence of special statutory provisions, to keep its highways and bridges in such condition that automobiles may not be exposed to the liability to injuries peculiar to that type of vehicles, is not decided.</p> <p> {6). Municipal Corporations. Duty to Keep and Maintain Bridges. Automobiles. </p> <p>On question certified for determination:—</p> <p>Held, that subject to the ordinary rules as to negligence of the* parties, and the statutory provisions as to the obligations of towns, a town was liable for injury to plaintiff’s motor truck resulting from a defect in or from the insufficiency of a bridge, provided it was found that the use of a vehicle and load of ten tons weight was reasonable upon the kind of bridge which the town should maintain at said location.</p>

<p>(1) Workmen’s Compensation Act. Minors.</p> <p>Pub. Laws, cap. 831 (The Workmen’s Compensation Act), Art. I, § 6, provides “A minor working at an age legally permitted, under the laws of this State shall be deemed sui juris for the purpose of this act.”</p> <p>Pub. Laws, cap. 1378, § 1, clause 1, amending Gen. Laws, cap. 78, § 1, provides that no child under fourteen years of age shall be employed or permitted or suffered to work in any factory or manufacturing or business establishment within this State and by clause 2 that no child under the age of sixteen years shall be so employed unless his employer shall have in his possession an age and employment certificate given by or under the direction of the school committee.</p> <p>Held, that the employment of a child of fourteen years without the above certificate was expressly prohibited and therefore unlawful.</p> <p>(S) Workmen’s Compensation Act. Minors. Employment Certificate.</p> <p>The entire responsibility of obtaining the information' required to be set out in an age and employment certificate and o*f issuing a proper certificate under Pub. Laws, cap. 1378, is placed in the first instance on the school committee of the child’s place of residence, although a factory inspector may investigate the accuracy of the statements contained in such certificate and order its cancellation if he finds it should not have been issued. Therefore an employer who has received from the proper authority a certificate substantially in form required by law in all its essential features is not required to investigate the accuracy of the statements of the certificate, but is entitled to rely upon it as rendering the employment by him of the child therein named as being legally permitted and said child is sui juris as an employee under the Workmen’s Compensation Act, Pub. Laws, cap. 831, Art. I, § 6.</p> <p> (S) Workmen’s Compensation Act. Minors. Employment Certificate. </p> <p>An inaccuracy of statement in an employment certificate given to an employer under Pub. Laws, cap. 1378, in that the mother signed the certificate and stated that she had control of the child, the child’s father at the time living with and having control of him, does not in itself invalidate the certificate so as to render the employment of the child unlawful, as regards the provisions of the Workmen’s Compensation Act."</p> <p>⅛) Pleading. Minors. Workmen’s Compensation Act. Employment Certificate.</p> <p>To a declaration in an action to recover for the death of a minor from injuries received while employed in the factory of defendant, defendant filed a plea in abatement alleging that at the time of the accident both defendant as employer and deceased as employee were subject to the provisions of the Workmen’s Compensation Act and therefore a common law action could not be maintained.</p> <p>Plaintiff by replication alleged that deceased while over fourteen years of age was under sixteen years of age and was employed in a manufacturing establishment and that defendant at the time deceased entered its employ, did not have in its possession an age and employment certificate under the provisions of Gen. Laws, 1909, cap. 78, § 1, as amended. On demurrer:—</p> <p>Held, that the pleadings of plaintiff were defective in not alleging that at the time of the accident, defendant did not have the certificate, but such defect was amendable.</p>

<p> (1) Bill of Exceptions. Transcript of Evidence. New Trial. </p> <p>An exception to a refusal to grant a new trial cannot be considered, in the absence of a complete transcript of the evidence presented at the trial.</p> <p> (3) Husband and Wife. Municipal Corporations. Highways. Actions. </p> <p>An action properly lies in favor of a husband against a town to recover damages which he has suffered in consequence of personal injuries sustained by his wife through the negligence of the town in failing to keep its highway safe and convenient for travel.</p> <p> (3) Damage to “Property.” Husband and Wife. Loss of Service. Municipal Corporations. </p> <p>Gen. Laws, 1909, cap. 46, § 15, “If any person shall receive or suffer bodily injury or damage to his property by reason of defect, want of repair or insufficient raffing, in or upon a public highway ... in any town which is by law obliged to repair and keep the same in a condition safe and convenient for travelers ... he may recover of such town the amount of damages sustained thereby ...” confers the right of action for damages to every species of property, including the loss by the husband of the services of his wife and also his expenses for the care of his wife occasioned by her injuries.</p> <p>(4) Words and Phrases. “Property.”</p> <p>The word “property” used without limitation is one of broad meaning. The exclusive right to a thing constitutes property in that thing, and the thing may be tangible or intangible.</p>

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

<p>(I) Appeal and Error. Equity Appeals. New Trial.</p> <p>In an equity cause complainants examined a number of witnesses, and defendants made no offer of oral testimony but introduced an award and also put in certain evidence by way of a stipulation signed on behalf of all parties and after complainants had closed their testimony defendants moved for dismissal of the bill which was granted. On appeal, which was sustained, defendants claimed that they should .be permitted to complete their defence either before the appellate court or the Superior Court, before a final order was made for the disposition of the cause.</p> <p>Held, that as there was no exclusion of evidence offered by defendants and no “accident or mistake^ wiijhin the meaning of Gen. Laws, 1909, cap. 289, § 30, and .as defendants did not see fit to introduce evidence to meet the evidence on behalf of complainants, there was no authority for allowing the taking of further evidence by defendants in the appellate court.</p> <p>Held, further, that the provisions of Gen. Laws', 1909, cap. 289, §§ 30-33, are general provisions confiding to the discretion of the court the correction of error and injustice and do not imply that as a matter of course it is the duty of the court except in unusual cases to allow testimony to be taken before the appellate court or to remand the case for a retrial.</p> <p>(⅞) Appeal and Error. Equity Appeals. New Trial.</p> <p>While the court has the power under Gen. Laws, 1909, cap. 289, §§ 30-33, in a proper case either to hear further testimony upon appeal, in case of “accident or mistake or erroneous ruling excluding evidence in the superior court” or to remit a cause for the purpose of .taking further testimony in the Superior Court in cases where justice requires such action, the determination of the question rests upon the peculiar circumstances of the particular ease and no general rule has been or can be arrived at.</p> <p>(8)" Constitutional Law. Due Process.</p> <p>Where a bill in equity sought to set aside an award under insurance policies and was a proceeding in aid of the prosecution of pending suits at law upon the policies, and appellees had had an opportunity to offer before the court below all the evidence they desired, the result of a decree setting aside the award to be entered under the order of the appellate court (after denial of appellees request to offer further evidence) will not be to deprive appellees of their property “without due process of law” in contravention of Art. • XIV of Amendments to the Constitution of the United States, but merely deprives appellees of an opportunity to interpose the award by way of special plea, leaving them full liberty to offer all such testimony as they would be able to offer if a retrial had been granted in the case at bar, in relation to the question tendered by the pleadings at law.</p> <p> (4) Appeal and Error. Equity Appeals. </p> <p>The statutes relative to an appeal in equity plainly imply that in the usual case, an appeal is to be treated in the appellate court not as a proceeding de novo for a retrial of the cause but as a proceeding for the purpose of reviewing the errors stated in the appellant’s reasons of appeal.</p>

<p>Petition in Equity in nature of quo warranto, seeking decree' of ouster.</p>

<p>(1) Judgment Against Town. Liability of Town Treasurer.</p> <p>Under Gen. Laws, 1909, cap. 46, §§ 12, 13, 14, relative to the satisfaction of a judgment against a town or city, a town or city treasurer is not personally responsible or primarily liable to pay the judgment in the first instance. Barber v. Barber, 32 R. I. 266, so far as inconsistent with the foregoing but not otherwise, overruled.</p> <p>(⅞) Judgment Against Town. Liability of Town Treasurer.</p> <p>While a town is required to be sued by an action against the town treasurer in his oficial capacity, such suit is in substance and legal effect a suit against the town and the judgment is as much a judgment against the town as if it were required that the suit be brought- against the town in its corporate' capacity and name.</p> <p>($) Judgment Against Town Treasurer. Executions.</p> <p>A judgment against a town treasurer cannot be collected by execution as there is no requirement or provision of law for the issue or service or return of execution in such a case.</p> <p>⅛) Judgment Against Tovm Treasurer. Mandamus.</p> <p>Mandamus is the only proceeding by which a judgment against a town treasurer may be enforced either against the town treasurer or against the town. The writ of mandamus in such case is in the nature of the statutory writ of execution and is legally equivalent thereto.</p> <p> (5) Judgment Against Tovm Treasurer. Successor in Office. </p> <p>After a suit against a town treasurer in his capacity as such has proceeded to judgment, it is not necessary to summon in his successor in office within one year in order to keep the judgment alive in case tjhe town treasurer against whom the judgment was rendered ceases to hold office and a successor is elected and qualified before the judgment is paid, but a judgment against a town treasurer is equally binding against his successor in office by reason of his representative capacity in succession to the town treasurer ’ against whom the judgment was rendered and in privity with him, and mandamus properly lies against him to compel action to provide for payment of the judgment.</p> <p> (6) Mandamus. Judgment Against Town Treasurer. </p> <p>While mandamus properly lies against a town treasurer to enforce settlement of a judgment either by the town treasurer or the town, the fact that the town treasurer has not sufficient funds in his hands to satisfy and pay the judgment affects the nature of the relief which should be asked and granted and such being shown to be the fact the relief sought should be action by the town treasurer undef Gen. Laws, 1909, cap. 46, § 13, so that a tax should be levied.</p>

<p> (1) Criminal Law. Grand Jury. Indictments. </p> <p>The pending of a criminal complaint against a respondent in a district court under which he is held to bail, is not a bar to an indictment by a grand jury for the same offence, but the grand jury may exercise its powers under Gen. Laws, '1909, cap. 273, § 15, independently and without giving consideration to any proceeding which may have been instituted or may be pending in a district court. '</p>

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

<p>(1) Contracts. Novation.</p> <p>Owing to difficulties about payment resulting in the stopping of work by a sub-contractor the contractor gave to the sub-contractor an order upon the owner of the premises for a sum to be due under the contract between the owner and the contractor.</p> <p>The sub-contractor secured orders -from time to time from the architects on the owner for money due the contractor, which were endorsed oyer by the contractor to the sub-contractor and paid by the owner. It appeared in the testimony for the sub-contractor in- his action against the owner that the latter stated when presented with the order, “Go ahead and finish the work; as long as you have that paper I will pay you.”</p> <p>Held, that from the facts there was no novation, but simply an expression of willingness to accept the order.</p>

<p>Petition eor Mechanic’s Lien.</p>

<p>Trespass on the Case foy negligence.</p>

<p> (1) Divorce. Res adjudicata. Living Separate and Apart. </p> <p>Gen. Laws, 1909, cap. 247, § 3, provides that “whenever in the trial of any petition for divorce from the bond of marriage, it shall be alleged in the petition that the parties have lived separate and apart from each other for the space of at least ten years, the court may in its discretion enter a decree divorcing the parties from the bond of marriage.”</p> <p>Held, that as the court cannot exercise its discretion without first ascertaining that the 'parties come within the statutory provision, where the evidence fails to establish such fact the court is without jurisdiction to do any thing except dismiss the petition, leaving the petitioner free to file another petition on similar grounds, when the statutory period has expired.</p> <p> {%) Divorce. Living Separate and Apart. Recrimination. </p> <p>The granting of a divorce under Gen. Laws, 1909, cap 247, § 3 (living separate and apart for ten years) does not depend upon the previous conduct of the petitioning party, and while testimony of a recriminating character may be admitted it should not be binding upon or control the action of the court., but may be considered by way of aiding the court in the exercise of its discretion.</p>

<p>Bill in Equity in form of bill of interpleader.</p>

<p>(1) Police Officers. Charges. Buies of Commissioners. Jurisdiction.</p> <p>Where a police officer was suspended pending investigation of charges, the fact that he was acquitted under an indictment for an offence forming the basis of some of the charges, does not prevent the Board of Police Commissioners from proceeding thereafter with the hearing of the charges for violation of rules of the department but it is not only their right but their duty to make the investigation before reinstating the officer, unless they are satisfied he had no criminal intent in his acts.</p> <p>(⅞) Police Officers. Rules of Commissioners. Charges.</p> <p>Rule 12 of the Rules and Regulations of the Board of Police Commissioners of the City of Providence authorizing the Board in its discretion to punish police officers by various penalties on conviction by the Board of any legal offence is not in violation of Gen. Laws, 1909, cap. 50, § 30.</p> <p>(S) Police Officers. Charges. Buies of Commissioners.</p> <p>Rule 2, Section 6 of the Rules and Regulations of the Board of Police Commissioners of the City of Providence, requiring a written complaint to be filed within 24 hours of the suspension of a police officer, does not prevent the amplification later of the original charges properly filed in compliance with the rule, such amplification being in the nature of a bill of particulars based upon additional information.</p> <p> (4) Police Officers. Buies of Commissioners. Jurisdiction. </p> <p>Where no rule of the Board of Police Commissioners of the City of Providence or any statute of the State requires the Board to act upon charges against a police officer while he was not seeking a hearing, it was proper for the Board to continue the hearing while the officer was awaiting trial on a criminal charge, and the jurisdiction of the Board over the charges is not lost for want of prosecution.</p>

<p>Petition for writ of prohibition.</p>

<p> (1) Osteopathy. Death Certificates. </p> <p>Persons who have received certificates to practice Osteopathy from the State Board of Health under cap. 1058, Pub. Laws, 1914, and who have registered under cap. 193 of the Gen. Laws, in the town clerk’s office of the city or town in which they reside, their authority for so practicing, are legally entitled to sign death certificates in those eases where they were last in attendance professionally upon the deceased.</p>

<p>(1) Certiorari. Auditors. Review. Exclusive Jurisdiction of Superior Court.</p> <p>Where parties have by agreement under the provisions of Gen. Laws, cap. 293, referred a cause to an auditor, the decision of the Superior Court on his report is final, and not subject to review by any means.</p>

<p>Petition under Workmen’s Compensation Act.</p>

<p>(1) Taxes. Payment under Protest.</p> <p>The payment of an overdue tax under protest is not such a voluntary payment as would preclude a taxpayer from recovering it back upon showing its illegality, although no levy or threat to levy had been made or any suit instituted or threatened for its collection.</p> <p>(¡8) Taxes. Payment to Collector.</p> <p>Payment of a tax to the collector constitutes payment to the town and an action to recover a tax paid under protest on account of illegality may be maintained against the town treasurer without affirmative proof that the money was paid over by the collector to the town treasurer.</p> <p>(S) Taxes. Payment under Protest.</p> <p>A protest to the payment of taxes in order to be effective should point out with reasonable certainty the defect or error upon which such protest is based. Rumford Chemical Works v. Ray, 19 R. I. 456, and Whitford, Bartlett & Co. v. Clarke, S3 R. I. 331, in so far as they hold that a protesting taxpayer is not required to state the grounds of his protest1, overruled.</p>

<p>(1) Criminal Law. Evidence. Credibility.</p> <p>A sentence for crime or misdemeanor may be shown to affect a witness’ credibility, under Gen. Laws, 1909, cap. 292, § 43 whether such sentence is based upon a verdict or plea of guilty or upon a plea of nolo contendere.</p> <p>(¾) Criminal Law. Intent. Drunkenness.</p> <p>Voluntary intoxication is not a defence to any crime actually committed, but where a particular intent is charged which aggravates the offence actually committed and enlarges it into a greater offence, drunkenness may be offered to negative the specific intent but only when it is of such a degree as to completely paralyze the will of the respondent, take from him the power to withstand evil impulses and render his mind incapable of forming any sane design.</p>

<p>(1) Memorandum of Sale. Statute of Frauds.</p> <p>The statute of frauds (Gen. Laws, 1909, cap. 283, § 6,) does not require that the agent signing the memorandum, shall be acting under written authority but such authorization may be by parol and the authority to make a contract for the sale of real estate confers authority to sign the memorandum.</p> <p> (S) Memorandum of Sale. Statute of Frauds. </p> <p>In an action to recover damages for breach by defendant of a contract to convey real estate the memorandum for sale was as follows:—-“Aug. 17 1916 Received of X., $25 to bind the bargain for the sale of Harry Noorigian Brick store and land at 46 Blackstone St. to X. Said deposit to be forfeited to Harry Noorigian in the failure of X to purchase said property on August 25 1916. Ballance due $1975</p> <p>J P Greene agt. for H Noorigian.”</p> <p>Held, that a memorandum was sufficient if from a consideration of the whole contract it could be gathered that it was the intention of one party to convey and of the other to purchase, regardless of apt words expressing the agreement of the parties to sell and to buy.</p> <p> (8) Memorandum of Sale. Parol Evidence. Description. </p> <p>If the description of the subject-matter of the agreement between the parties is so uncertain and indefinite that it cannot be applied exclusively to any specific land, parol evidence cannot be received to complete the description but if the description is definite though requiring extrinsic evidence to identify the land which it represents, parol evidence may be received for that purpose.</p> <p> (4) Memorandum of Sale. </p> <p>Where a memorandum was made in Woonsocket and both parties resided there and defendant owned property on Blackstone Street in that city, the description “46 Blackstone St” will be presumed to refer to that number on that street in that city.</p> <p>(5) Memorandum of Sale.</p> <p>The description in a memorandum, “brick store and land at 46 Blackstone St” is not indefinite, because there are two doors to the store numbered 44 and 46.</p> <p> (8) Memorandum of Sale. </p> <p>The description in a memorandum, “brick store and land at 46 Blackstone St” is not insufficient because the width and depth of the lot on which the store stands is not set out, since such description must define at least the land on which the store stands.</p> <p>(7) Memorandum of Sale. Evidence.</p> <p>In an action to recover damages for breach by defendant of a contract to convey real estate, certified copy of deed by which defendant acquired the whole parcel of land of which the lot in question was a part, was properly admissible on the part of the plaintiff to identify the property described in the memorandum.</p>

<p>Bill in Equity.</p>

<p>(1) Combinations in Restraint of Trade. Anti-Trust Act.</p> <p>Although a contract is to be performed in a particular State, yet if it is part of an illegal combination to secure control of a product and raise its price to all buyers in the United States, it is within the prohibition of the antitrust act.</p> <p> (2) Combinations in Restraint of Trade. Conflicting Instructions in Charge. </p> <p>The issue in an action being whether or not the contract was part of a conspiracy between the parties to obtain a monopoly of a commodity and sell it at an unreasonable profit in violation of the common law, of the Sherman anti-trust act and of the statutes of the State, the court in one portion of the charge submitted to the jury the question of whether or not there was between the parties an illegal combination to create a monopoly; in another portion it took from them the issue of illegal combination by instructing them that there was no evidence of a conspiracy between the parties to restrain trade.</p> <p>Held, that, in order to justify the finding of a conspiracy it is not necessary that the proof should be by direct evidence, but the jury may base such finding upon inferences fairly to be drawn from the facts and circumstances in evidence when such inferences amount to more than a conjecture and are of such a conclusive nature as to furnish the burden of proof required of the defendant in the case.</p> <p>Held, further, that the issue of illegal combination should have been submitted to the jury, and the charge that there was no evidence of an illegal combination to create a monopoly constituted reversible error which was not cured by the contrary instructions in the general charge.</p> <p> (S) Contracts in Restraint of Trade. </p> <p>The illegality in a contract in restraint of trade consists in the intent to establish a monopoly and to control prices and the plan of the parties for gathering in the profit is merely an unimportant detail.</p> <p> (If) Conflicting Instructions. Reversible Error. New Trial. </p> <p>When contrary instructions are calculated to confuse and mislead a jury they constitute reversible error. It cannot be left to the jury to reconcile conflicting statements of law and it is impossible for the appellate court to determine in accordance with which of two inconsistent statements their verdict has been reached.</p> <p> (5) Contracts in Restraint of Trade. Instructions to Jury. </p> <p>Instructions that the Anti-Trust Statute does not apply to an act between private parties unless the contract sued on itself contains provisions in violation of that statute and that “there are no provisions in the contracts in suit which violate any statute against restraints in trade and monopolies,” took from the jury the issue of whether or not the contracts were invalid by reason of the provisions of the anti-trust act and constituted reversible error, for such contracts should be found to be illegal if they were entered into in furtherance of a combination which was itself illegal under the Act, although the contracts on their face contained no provision indicating such illegality.</p> <p>(i6) Contracts in Restraint.of Trade. Illegality as a Defence.</p> <p>Where the issue was whether or not the contract was part of a conspiracy between the parties to obtain a monopoly, refusal to charge that “if you find from the evidence that the contracts sued upon were entered into as a part of a scheme to artificially raise the price of quicksilver, then your verdict must be for the defendant” and “if the plaintiff knew the purpose for which the defendant was purchasing the quicksilver and that purpose was so to control the market that it could raise the price of quicksilver, the verdict must be for the defendant” was error, for courts will not enforce contracts tainted with illegality, and an illegal combination of which the contract was a part may be set up as a defence to its enforcement.</p> <p>Vincent, J., dissents.</p>

<p>(1) New Trial.</p> <p>While the denial of a motion for new trial is a formal approval of a verdict, yet where it is evident from the decision of the justice that the verdict in the opinion of the trial court failed to do justice between the parties and would have been set aside had the court felt it was possessed of the power to do so, the conclusion of the justice cannot be given the weight and consideration to which it might otherwise be entitled.</p>

<p>(1) Negligence. Lights on Vehicles. Causal Relation.</p> <p>Where plaintiff’s carriage was struck from behind by d'efendant’s automobile, as a matter of law a special finding that plaintiff was acting in disregard of Pub. Laws, 1914, cap. 1028, requiring every vehicle to display a light between certain hours is not conclusive upon the question of his right to recover. The absence of lights may have or may not have a causal relation to the collision, depending upon the condition of the light in the highway in the neighborhood of the place of the accident.</p> <p>(¡8) New Trial. Reviewing Decision of Trial Judge.</p> <p>The finding of the trial judge upon the validity of a jury’s verdict is not binding upon the appellate court but the court will examine the transcript of evidence and if if appears that the determination of the trial judge upon the weight of the evidence was clearly wrong or that his decision was not made upon conflicting testimony but was based upon a misconception of the evidence his decision will not be approved; but in the ordinary case where such justice has approved or set aside a verdict in accordance with his view as to the value of evidence clearly conflicting his determination will be regarded as of great persuasive force.</p> <p>Following the rule established in Wilcox v. R. I. Co., 29 R. I. 292, and McMahon v. R. I. Co., 32 It. I. 237.</p> <p> (3) New Trial. Constitutional and Statutory Jurisdiction of Supreme Court. </p> <p>When the evidence before a jury is conflicting upon the issues, a review of the decision of the justice presiding either approving or setting aside the verdict is not a question of law. Such review does not come before the appellate court by virtue of the constitutional provision giving it final revisory and appellate jurisdiction upon all questions of law and equity, but its jurisdiction is entirely statutory, conferred as part of the procedure by which a party may test the validity of a jury’s verdict.</p> <p>Vincent, J., dissents.</p>

<p> (1) Negligence. Electric Railways. Last Clear Chance. </p> <p>Where a motorman of an electric car sees a person on or approaching the track he ordinarily has a right to act on the assumption he is in possession of his faculties and will exercise reasonable care and in such case the motorman is not bound to anticipate that such person will stay on or get on the track and to take steps to avoid injuring him, by slackening the speed or stopping the car until it becomes reasonably apparent that he cannot or will not get out or keep out of the way and if in view of his right to act on such assumption the motorman exercises reasonable care and caution to warn such person of his peril and to slacken the speed or if necessary stop the car in time to avoid injuring him, but is unable to avert an accident by reason of such person’s remaining on or near the track the carrier is not liable for the resulting injuries.</p> <p> (2) New Trial. Last Clear Chance. Review of Decision of Presiding Justice. </p> <p>Where a case was submitted to a jury upon the question, among other issues, of the last clear chance, which was not involved in the case, and the court cannot determine from the rescript of the justice on which phase of the case he sustained the verdict, the plaintiff’s testimony on the question of due care being unsupported, a new trial will be ordered, the decision of the court if based on the theory of the last clear chance adding nothing to the verdict.</p>

<p>Debt under policies of fire insurance.</p>

<p>(1) Wills. Intention. Extraordinary Dividends.</p> <p>The expressed intention of a testator in his will as to the disposition of extraordinary dividends, governs.</p> <p>(⅞) Wills. Ordinary and Extraordinary Dividends.</p> <p>Ordinary dividends, regardless of the source whence, or the time when the fund was accumulated, go to the life tenant.</p> <p> (S) Wills. Trusts. Capital Assets. Life Tenant and Remainderman. </p> <p>Capital assets in liquidation are capital, and not income, as between life tenants and remaindermen.</p> <p> (4) Trusts. Extraordinary Dividends. Life Tenant and Remainderman. </p> <p>Where a stock dividend was declared against surplus accumulated before the death of testator, and instead of distributing the stock among the stockholders the corporation sold it and distributed the cash received in the form of extraordinary cash dividends, such dividends go to the corpus of the trust and not to the life tenants.</p>

<p>(1) Personal Injury. Damages. New Trial.</p> <p>While in a suit to recover compensation for personal injuries, pain and suffering, when the extent of the injury has been established, it is peculiarly within the province of the jury to determine the amount of the award, yet when it appears to the justice presiding that the amount of the verdict is based upon a finding as to the extent of injury which is unsupported by the evidence, or when such amount is grossly excessive upon any possible finding regarding the extent of the injury, it is the duty of the justice to grant a new trial, as the amount of the award is not based on the evidence.</p>

(Appeal of the town of West Warwick.) (Appeal of the city of Cranston.) (Appeal of the town of Cumberland.) (Appeal of the town of Warwick.) (Appeal of the town of Johnston.) (Appeal of the town of Burrillville.) (Appeal of the town of East Greenwich.) (Appeal of the city of Pawtucket.) (Appeal of the town of North Providence.) Appeals from an order of Public Utilities Commission.

<p>(1) Building. Construction. Time of filing Remonstrances.</p> <p>Ordinance of the city of Pawtucket, cap. 166, in relation to the erection etc., of automobile garages, provided that ‘ ‘at the hearing,” owners of land within a radius of 200 feet might file objections, etc.</p> <p>A hearing was had upon an application, the record concluding, “Hearing closed. Attorneys given one week to file briefs on the question of including street areas. Decision reserved.”</p> <p>Within the week an additional remonstrance was filed.</p> <p>Held, that the last remonstrance was not filed within the time prescribed, as the hearing had been concluded and the only question remaining was one of law.</p>

<p>(I) Writs of Error. “Decision” of District Court. Conclusions of Law and Fact.</p> <p>Where no record appears, other than the decision noted on the writ to show what the “conclusions of law and fact” of a judge of a district court, were, as it does not appear from the record whether such decision was based wholly upon facts or upon conclusions of law, a writ of error will not he to review such decision.</p> <p>(3) Writs of Error.</p> <p>Upon a writ of error, questions of law and not errors of fact are reviewable.</p> <p>(3) “Decision" of District Court. Conclusions of Law and Fact.</p> <p>It is competent for a judge of a district court at any time to amend his decision by amplifying it if necessary to conform to Gen. Laws, 1909, cap. 288, Sec . 20, in regard to noting his conclusions of law and fact, as of the date of the decision so as to show whether such decision was based wholly upon facts or upon conclusions of law.</p>

<p>Petition under Workmen’s Compensation Act.</p>

<p>(1) Public Utilities Commission. Appeals.</p> <p>Upon hearing by full court, after notice to parties, of the motions of respondent street railway, that appeals from the order of the Public Utilities Commission should not operate as a stay of said order.</p> <p>Held, that the objections to the order could only be determined upon hearing upon the merits of the appeals, and in the meantime none of such appeals should operate as a stay.</p> <p>Vincent, J. Dissents.</p>

<p>(2) Equity. Specific Performance. Laches.</p> <p>Where in a decree for specific performance no time was specified within which payment to the vendor was to be made and the amount to be paid by the vendee was undetermined and left to the decision of a master and neither party made any effort to press the suit before the master, there being no evidence that the delay worked any disadvantage to the respondent, complainant is not barred from his right to the performance of the decree on the ground of laches, for mere delay to enforce a right is not laches.</p> <p> {%) Equity. Superior Court. Jurisdiction. </p> <p>A suit brought in Washington county for specific performance of a contract to convey land, is of -such a nature that it could properly be heard and decree entered in Providence county and where this was done by express request of the parties, one of them cannot thereafter be heard to object to such action.</p> <p>(S) Equity. Specific Performance. Cost of Transcript.</p> <p>Where on a bill for specific performance, a transcript was prepared by agreement of parties, after the hearing on the original bills, and used at request of the parties, by the trial court to assist him in his decision of the cause, and under agreement by parties to share the expense which respondent failed to keep, complainant paying the whole cost, respondent was properly charged in the bill of costs with one-half of the cost of the transcript.</p> <p>(4) Equity. Specific Performance. Interest.</p> <p>Where under the original decree granting relief, the amount of payment was not determined and no time limit for hearings before a master or for payment was fixed, and the responsibility for delay in pushing the further proceedings-rested equally upon both parties, respondent is not entitled to • interest on the purchase price.</p>

<p> 1. Explosives. Blasting. Town Councils. </p> <p>Gen. Laws, 1909, cap. 50, § 21 authorizes town councils to prescribe rules and regulations governing the use of explosives for any and all purposes which includes their use for blasting.</p> <p> S. Explosives. Blasting. Town Councils. </p> <p>While a town council is authorized under Gen. Laws, 1909, cap 50, § 21, to prohibit the use of explosives for blasting in the absence of a license, it is also true that the power to make rules and regulations under Section 29 of the same chapter carries with it, at least impliedly, the power also to require a license.</p> <p> S. Mandamus. Discretionary Powers. </p> <p>Mandamus will not lie to control the exercise of a discretionary power by a public official.</p>

<p>Petition for construction of will under Gen. Laws, 1909, cap. 289, § 20.</p>

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

<p>(I) Jurors. Constitutional Law.</p> <p>Pub. Laws, 1918, cap. 1677, § 23, relative to the service of persons drawn as grand and petit jurors, is not obnoxious to Cons. R. I. Art. I, § 7.</p> <p>(¾) Constitutional Question.</p> <p>A motion to quash an indictment on the ground that the grand jury was not impaneled in accordance with the statute, must in the first instance be presented to the Superior Court and is not properly before the appellate court upon the certification of a constitutional question which formed another ground of the motion to quash.</p>

<p>(1) Garnishment. Assignment of Wages.</p> <p>Defendant on account of a loan from his employer gave a receipt, ‘ ‘Received from X. Co. $50 against which I pledge my wages until paid back. They to retain $2 per week or more if they see fit.”</p> <p>Two attachments of the personal estate of defendant in the hands of the employer were made and in each case after the attachment, the garnishee deducted $2 from the amount of wages due and paid over the balance to defendant and made a return of “no funds.”</p> <p>Held, that the agreement was in effect an assignment of wages and not being recorded was invalid as against the attaching creditor, and further it was fraudulent against creditors.</p> <p>Held, further, that it was the privilege and duty of the garnishee within a reasonable time after the attachment to elect whether or not it would set-off its claim against defendant’s claim, and its action in paying over part of the wages to defendant was an election not to set-off and an admission of indebtedness to the amount of the funds turned over.</p>

<p>(1) Easements. Bight of Way by Necessity. Increasing Burden.</p> <p>0 ne having a right of way by necessity over land of his grantor to a highway cannot use such right of way for the purpose of ingress and egress to other land acquired from another grantor, but contiguous to the first parcel, as such use increases the burden beyond the servitude lawfully created.</p> <p>(,⅞) Easements. Bight of Way. Obstructing Way.</p> <p>Wh ere one has a right of way by necessity over land of his grantor toa highway, t he placing of a gate of light construction easily opened on the end of the w ay at the highway, by the owner of the fee, is not an unlawful interference with the use of the way.</p> <p> (S) Easements. Bight of Way. Directing Verdict. Obstructing Way. </p> <p>Where there was no evidence that a gate was an unreasonable obstruction to the use of a right of way it was not error to direct a verdict for the owner of the servient tenement.</p>

<p> C1) Fire Insurance. Notice. Soliciting Agent. General Agents. </p> <p>An insurance company is not bound by notice of facts communicated by insured at the time of making the application to one who was acting as soliciting agent for the general agents of the company.</p>

<p>Petition to establish truth, of exceptions.</p>

<p>(1) Judgment. Time of Entry.</p> <p>Gen. Laws, 1909, cap. 294, § 1, providing that “judgment shall be entered on the seventh day following the day of the rendition of the verdict or the decision of the court, unless some motion operating as a stay be filed, &c.,” must be construed in connection with cap. 298, § 17, relating to procedure in prosecuting a bill of exceptions, and therefore a judgment may be entered at the end of the seventh day, but not before, and the clerk in making the record of judgment on the eighth day made the entry on the first day on which he was authorized by statute to act.</p> <p> (S) Judgment. Setting Aside Judgment. Assignment to Trial. </p> <p>April 2, plaintiff was nonsuited; April 10, the clerk made the record, “judgment entered for defendant; April 9, the parties executed an agreement, “default removed, case assigned for trial June 25.” . The next entry on the record was “April 10, by agreement of counsel default heretofore entered removed and case assigned for trial to June 25.” This last entry was made without order from the court. On October 27, the court assigned the case to trial.</p> <p>Held, that an act of the court being required to set aside a judgment it was error to assign the case to trial as there was nothing to try.</p>

<p> (1) Contributory Negligence. Question for "Jury. </p> <p>The question of contributory negligence is one for the jury unless it clearly appears that the only proper inference from the undisputed facts is that in the circumstances of the ease a person of ordinary prudence would not have acted as did the plaintiff.</p> <p> (2) Contributory Negligence. Automobiles. </p> <p>The driver of an automobile who crosses an intersecting street without taking any observation, except looking straight ahead, when had he looked before attempting to cross he must have seen defendant’s automobile coming at right angles but a short distance from him at a rapid rate of speed, is guilty of contributory negligence. '</p>

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

<p>(1) Divorce. 'Judgments. Belief After Judgment.</p> <p>Gen. Laws, 1909, cap. 297, § 1, of relief within one year after judgment, does not apply to a petition for divorce as no judgment can be entered therein.</p> <p>(S) Divorce. Relief After Final Decree in Divorce.</p> <p>After entry of a final decree in an uncontested petition for divorce,'respondent cannot obtain relief under Gen. Laws, 1909, cap. 297, § 3, allowing relief ton petition filed within one year to'persons aggrieved by any order decree decision or judgment, where from accident mistake unforeseen cause or lack of evidence newly discovered they have failed to claim or prosecute an appeal or bill of exceptions or motion or petition for new trial, since petitioner having taken no exceptions could not through accident, &c.: have failed to file a bill of exceptions, which is the appropriate way to review questions of law in divorce petitions.</p>

<p>(I) Fire Insurance. Limitation Clause.</p> <p>Where a policy of fire insurance contained a provision that ‘ ‘no suit or action on this policy for the recovery of any claim shall be sustainable . . . unless commenced within twelve months next after the fire,” if the insured acted diligently and in good faith and there was no adjustment of the loss within a year after the fire, the fact that more than a year elapsed before the suit, is not a.bar.</p> <p>(¾) Fire Insurance. Appraisal.</p> <p>In an action on a policy of fire insurance, defendant’s request to charge that “if on or before Jan. 9, 1913 the appraisal failed through no fault of defendant and no request was made by insured for a new appraisal until Nov. 18 1913, at which time an action upon the policy was pending,” the verdict must be for defendant, was properly refused, where the court properly submitted the issue to the jury whether insured seasonably followed up his rights to have an appraisal after the failure of the first appraisal.</p> <p>(.?) Fire Insurance. Protection of Property After Fire.</p> <p>In an action on a policy of fire insurance, a request to charge in substance that if plaintiff did not protect the property after the fire it was a bar to his right to recover on the policy was properly refused, since such failure to do so would only go to the amount of his recovery.</p> <p>(J) Fire Insurance. Appraisal.</p> <p>Where the question whether insured had been sufficiently diligent in .asking for a second appraisal was an issue in the case, this must be determined by a consideration of all the facts, which include the insurer’s attitude and conduct; and there was no error in charging that after a faliure of appraisal, it was as much the duty of the insurer as the duty of insured to seek a new appraisal.</p> <p> (d) Fire Insurance. Evidence. Limitation Clause. </p> <p>Evidence that negotiations were had between insurer and insured concerning the loss is admissible upon the question as to whether insurer has waived the time limit for bringing suit and also as it tends to explain the delay in bringing suit, as bearing upon the question- of diligence on the part of insured.</p> <p> (6) Evidence. Prejudicial Answer. </p> <p>Where a question is admissible, a party takes nothing by his objection to the question and his exception to an irrelevant and prejudicial answer, but if it was considered after such answers had been stricken out that the jury would be improperly influenced, a motion to take the case from the jury should have been made, and refusal of such motion could be reviewed on exception.</p> <p>(7) Fire Insurance. Pleading Inconsistent Facts.</p> <p>In an action on a policy of fire insurance, on the issue whether there had been a failure of an appraisal through fault of defendant, plaintiff's declaration alleged that the plaintiff and defendant each selected a competent and disinterested appraiser. Plaintiff introduced a letter written by him to defendant, which was competent for the purpose of showing a demand for a new appraisal but which assumed that defendant did not appoint a competent and disinterested appraiser.</p> <p>Held, that the plaintiff had removed the issue as to the competency of defendant’s appraiser by his allegation as to his competency and refusal to charge as requested by defendant that the jury must assume that defendant’s appraiser was competent and disinterested, since plaintiff had admitted these facts, constituted reversible error.</p> <p>(8) Evidence. Pleading Irrelevant Matter.</p> <p>A party- may not render incompetent or irrelevant testimony competent merely by pleading it, nor does the failure of the opposing party to move to strike it out as irrelevant or redundant render it admissible.</p> <p>Stearns, J., dissents.</p>

<p>Criminal Complaint.</p>

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

<p> (1) Divorce. Allowance Pendente Lite. Execution. </p> <p>An order for .alimony pendente lite is included within the provisions of Sec. ■ 14, cap. 247, Gen. Laws, 1909, relative to relief byjexecution^against a respondent in divorce proceedings who is in default.</p> <p>(⅞) Divorce. Alimony Pendente Lite. Execution, ’</p> <p>Where an order for alimony pendente lite was madeymd thereafter on hearing on the merits, the petition for divorce was dismissed and after such dismissal affidavits were filed under J3en. Laws, 1909, cap. 247, sec. 14, showing that respondent was in arrear for a period of twenty-four weeks"prior to the dismissal of the petition and execution issued:—</p> <p>Held, that the execution was properly issued, for the extent of the obligation and the time for its discharge had been fixed by the court, and until such order was changed the legal obligation continued and was not dependent on further proceedings in the divorce action and consequently was not affected by the decision.</p>

<p>Bill in Equity for construction of testamentary trust. Certified under Gen. Laws, 1909, cap. 289, sec. 35.</p>

<p>(1) Oral Statement of Facts in-District Court. -</p> <p>Where an oral statement of facts was agreed upon in a district court by the attorneys for the parties, as such statement was not in writing the court could not certify the action to the Supreme Court under Gen. Laws, cap. 298, sec. 4, and therefore it retained jurisdiction of the action.</p> <p> (2) Oral Statement of Facts. Decision. </p> <p>An oral agreement on a statement of facts in a district court by attorneys for the parties to a cause precludes the necessity of proving such facts and such admission binds the parties and the court is warranted in entering a decision thereon.</p> <p> (8) Certiorari. </p> <p>Certiorari lies to review the action of an inferior tribunal taken without jurisdiction or in excess of its jurisdiction and not to correct error in the exercise of jurisdiction. The scope of the writ has never been extended to the consideration of alleged error for the correction of which other remedy is expressly provided.</p>

<p>(1) Constitutional Law. Taxation. Poll Taxes. Women Voters.</p> <p>Women who, if registered, would be entitled to vote for electors of president and vice-president of the United States are not hable for assessment for poll taxes.</p>

<p> (1) “Lever Act." Coal Administration. </p> <p>Fuel administrators, under the so-called “Lever Act,” were invested with plenary powers enabling them to determine in their discretion to whom any coal brought into this State should be delivered without regard to the claim of any party who might be the consignee thereof; therefore when such administrator by written order diverted certain coal from plaintiff to defendant, and it did not appear that any other order regarding such coal w&s given the railroad company or to the defendant, it was immaterial what may have been the conversation between plaintiff and the administrator subsequent to the order to the railroad company, since it was the final intention of the administrator from the facts that the original order should stand and defendant had the right to take the coal at the wholesale price at the mines.</p>