Volume 43 — Rhode Island Reports

<p> (1) lácense to Cut Standing Timber. Executory Contract. </p> <p>A sale of standing wood with the right to remove it does not pass an interest in the land, but only in the trees when they are severed therefrom; it is only an executory contract for the sale of chattels with a license to enter on the land for the purpose of removal, and where before the trees are cut the land is sold to a third party, the license is thereby revoked.</p> <p> {2) Dower. License to Cut Standing Timber. </p> <p>Prior to the assignment of dower, a widow’s interest is neither a title nor an estate but merely a chose in action, and cannot suppont an action of trespass de bonis asportatis for the cutting and removal of trees by defendant who acted under license from the grantee of the premises who acquired the land by deed from the husband in which the wife did not release dower.</p>

<p> (1) Certification of question of Law. </p> <p>A question of law which has not been actually brought before the Superior Court for judicial determination cannot be certified under Gen. Laws, 1909, cap. 298, § 5, as amended.</p> <p>Following Fletcher v. Board of Aldermen, 33 R. I. 388, and Tillinghast v. Johnson, 34 R. 1.136.</p>

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

<p> ■(1) Equity. Appeal and Error. Findings of Fact. </p> <p>■On an appeal in equity, where the evidence was conflicting in the lower court, the findings of fact by the trial judge aré entitled to great weight and will not be set aside unless they clearly fail to do justice between the parties.</p> <p> '(2) Statute of Frauds. Memorandum. Name of Owner. </p> <p>It is not necessary that the memorandum of. a contract for sale of lands, under the Statute of Frauds (Gen. Laws, 1909, cap. 283, § 6), disclose the name of the owner of the property if it is signed by “some other person by him thereunto lawfully authorized;” the name of the owner may be proved by parol.</p> <p>(3) Statute of Frauds. Memorandum. Agent’s Authority to Sign.</p> <p>The appointment of an agent to execute the memorandum under the statute of frauds'may be by parol.</p> <p> (4) Statute oj Frauds. Oral Contract for Sale of Land. </p> <p>An oral contract for the sale óf land is enforceable provided there is a sufficient memorandum in writing.</p> <p> (6) Statute of Frauds. Description of Property in Memorandum. </p> <p>In a memorandum of sale the real estate was described as “property sold this day — at auction — Pawtucket Ave. East Prov.”</p> <p>Held, that as'the seller owned only one piece of property on Pawtucket Avenue the memorandum was sufficient under the rule that if the description can apply to but one parcel of property owned by the seller, the property can be identified by parol.</p>

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

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

<p> \1) Tender. Receipt. </p> <p>Where a debtor makes a tender of what he claims is due, the creditor cannot render such tender nugatory by tendering a receipt from which an inference could be drawn that debtor had not paid the amount due in full.</p> <p>(2) Courts of Record. Correction of Errors.</p> <p>In a trial in the Superior Court on claim of jury trial after decision in a district court the court properly granted a motion permitting the clerk of the district court to amend a clerical error in its record.</p> <p>'(#) Courts of Record. Correction of Errors.</p> <p>A court of record has power to correct errors in its records.</p> <p> (4) Trespass and Ejectment. Bonds. </p> <p>By going to trial on the merits of the case, without objection a plaintiff must be deemed to have waived all objections to the bond given on claim of jury trial in an action of trespass and ejectment</p> <p>.Semble: As under Gen. Laws, 1909, cap. 280, §§ 16 and 17, the clerk of the district court of the Sixth Judicial District has power under certain conditions to act as justice, nothing appearing to the contrary it is to be presumed that he acted with authority in the performance of a judicial act.</p>

<p>(1) Bill of Exceptions. Filing Transcript after Extension of 'Time.</p> <p>Where an extension of time has been made for the filing of a transcript, the terms of the order of extension must be strictly complied with, and the transcript must be filed in court on or before the date fixed for such filing by the order of extension.</p> <p>The distinction between appeals in law and appeals in equity in relation to filing of transcript after an extension of time, which has been established;, approved.</p>

<p>(1) New Trial. Misconduct of Juror. Judicial Discretion.</p> <p>,The claim of misconduct of a party’s witnesses with a juror is addressed to the judicial-discretion of the trial court and where the appellate court find no abuse of such discretion, the action of the justice in granting a new trial on such ground will not be disturbed.</p> <p> (8) New Trial. Stating Grounds of Decision. </p> <p>In decisions granting motions for new trials it would be a desirable practice to indicate the grounds of such decision.</p>

<p> (1) Taxation. Property in Possession oj Bailee. </p> <p>In assessing a tax under the provisions of par. 1 of sec. 9 of cap. 57, Gen. Laws, 1909, as amended by Pub. Laws, cap. 1209, against tangible personal property in the hands of a warehouse keeper who at the time of such assessment had in his hands a great number of separate bailments subject to the orders of their several owners, it not appearing that any sworn return to the assessors had been made by such warehouse keeper, the assessors have no right to assess a tax against all the property in the hands-of the warehouse keeper as bailee as though it was a single bailment nor have they the right to assess a tax against one of a number of parcels of personal property in the hands of such warehouse keeper as bailee without in some manner identifying such parcel.</p> <p> (2) Taxation. Filing Return. Illegal Taxation. </p> <p>While a taxpayer who has made no return may not be able to complain of overtaxation he can complain of illegal taxation.</p>

<p>■(1) Depositions. Witnesses. Parties.</p> <p>Under the provisions of Gen. Laws, 1909, cap. 292, § 22, authorizing a magistrate to take depositions and sec. 28 providing that “any person may be compelled to appear and depose .- . . in the same manner as to appear and testify in court,” a party is not a witness, within the meaning of the latter term as used in such statute and one party cannot require the adverse party to give his deposition prior to the trial.</p>

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

<p>(1) Negligence. Automobiles. Proximate Cause.</p> <p>Where the jury found that plaintiff was forced off the travelled way by the reckless conduct of the driver of defendant’s automobile, into a ditch, along which he travelled until his car struck a pole, it was a question for the jury whether plaintiff who testified he became frightened and nervous by the occurrence did during the second or two before his car struck the pole exercise the judgment and prudence that reasonably should be required of him when he unexpectedly found himself in this emergency.</p> <p> {2) Negligence. Automobiles. Requests to Charge. </p> <p>In a personal injury case caused by plaintiff being forced off the road into a ditch by the reckless conduct of the driver of defendant’s automobile, requests to charge by defendant were properly refused, which if given, might have led the jury to believe that plaintiff, frightened by the emergency in-which he was placed, if they so found to be the case, was required to exercise the same good judgment, prudence and forethought that would be demanded of him in running his car on the highway in ordinary circumstances.</p> <p> •(S) Negligence. Automobiles. Bills of Particulars. Damages. </p> <p>In an action to recover for damages to automobile through negligence of defendant motion to strike out of bill of particulars an item for amount paid by plaintiff for the board of himself and wife while waiting for the repairs to be made on the car was properly refused.</p> <p>c(4) Expert Evidence. Hypothetical Questions.</p> <p>A hypothetical question to an expert witness who had read the stenographic notes of the testimony of another witness, based in part upon an assumption of the facts contained in such notes and not specifically set out in the question, was properly admitted in the exercise of the discretion of the trial court where the facts stated in the notes were simple and the evidence was not contradicted, but the better practice in cases calling for the opinion of a skilled witness who does not testify from his own observation, would be to require counsel to set forth specifically the facts assumed to be true and then to ask the witness for his opinion upon.such assumed facts.</p>

<p>Bill in Equity for construction of will. Certified under-statute from Superior Court.</p>

<p>Trespass and Ejectment.</p>

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

<p>(1) Contracts. Abandonment of Contract. Recovery of Value of Work Performed.</p> <p>Where plaintiff agreed to do certain construction work “in accordance with- . the specifications marked on said plan” which plan specified the width of the walls to be built and did not show or require any footing under the walls, and after a portion of the work had been completed the work was stopped by the Inspector of Buildings, who required additional security at an increased cost, which defendant owner refused to pay, plaintiff was justified in abandoning the contract and was entitled to recover the reasonable value of his work.</p>

<p>(1) Principal and Surety. Bankruptcy. Bonis. Discharge of Principal.</p> <p>The discharge in bankruptcy of one obligor on a common, law bond does not release the remaining obligors.</p>

<p>(1) Set-off.</p> <p>The statute in regard to set-off should be liberally construed and the fact that some evidence is required to establish the amount of the claim should not preclude a party from the right of set-off.</p> <p> (8) Set-off. Claims ascertainable by Calculation. </p> <p>Where the claim in set-off is for goods sold and delivered, work and labor done or for pecuniary claims, when the jury can by the introduction of evidence, be furnished with the basis on which to assess the damages, although such claims are unliquidated they -should be allowed in set-off and may fairly be held to be claims which “may be ascertained by calculation” under Gen. Laws, 1909, cap. 288, § 11.</p> <p>(S) Set-off.</p> <p>A plea in set-off for the fair value of room rent and house rent is allowable. ■</p>

<p>(/) Evidence. Hearsay.</p> <p>Agency cannot be established by proof of the badges worn by the men who did the work or the teams used by them nor by declarations by unidentified workmen not made in connection with the business of the employer, but as part of a casual conversation with a bystander.</p> <p> (2) Verdicts. NonSuit. </p> <p>Upon close of testimony defendant moved for direction of a verdict and the court over the objection of both parties nonsuited the plaintiff.</p> <p>Held, error for if there is no legal evidence to support a verdict it is the duty of the court to direct a verdict for defendant and it cannot at that stage of the proceedings order an involuntary nonsuit, and plaintiff likewise has the right to go to the jury if on consideration of the entire evidence there is sufficient evidence to warrant submission to a jury.</p> <p>(3) Non Suit. Direction of Verdict.</p> <p>If a plaintiff has failed to prove a prima facie case a non suit may be granted, or if it appears from plaintiff’s case that in any event he has not the right to a verdict, a verdict may 'be directed for defendant. Each of these motions is addressed to the discretion of the court and no exception lies to the denial of either. The court is not bound to rule upon the sufficiency of plaintiff’s evidence to maintain the action before the whole testimony is closed upon both sides but on a motion to direct a verdict for defendant after the testimony is closed on both sides, the court is bound to consider all of the testimony and not simply plaintiff’s testimony and defendant is entitled -to have the cause proceed to a final decision and to have a verdict on the case as submitted by both parties and the court cannot grant a non suit.</p>

<p>(1) Infants. Necessaries. Executed Contract. Return of Consideration. Where an executed contract is not one for his necessaries, an infant should be permitted to disaffirm it, and recover the consideration moving from him, and should be required on his part to return the consideration that remains in his hands, but if he has dissipated it or lost it or for any reason he is unable to restore it he none the less should be permitted to disaffirm the contract and recover back the consideration moving from him.</p>

<p>(/) Relinquishment of Lien. Statute of Frauds. Consideration. Contracts.</p> <p>A promise to pay a workman the wages due him from bis employer if he would forego his right to commence process to enforce a lien on defendant’s property is not a promise to pay the debt of another within the provisions of the statute of frauds, but an original undertaking on the part of defendant based upon a new consideration.</p> <p> (8) New Trial. Decision of Justice on Motion for New Trial. Pro Forma Ruling. </p> <p>The decision upon a motion for new trial after verdict made by the justice presiding at the jury trial, can in no case be regarded as a pro forma ruling upon the question of the credibility of witnesses or the weight of evidence and it is not within the power of a party to a motion for new trial to nullify the purpose of the statute in having the justice pass on this question, by failing to argue the motion or by submitting to a pro forma ruling against him, and the duty of the justice is not affected by the acts of the moving party to the motion.</p>

<p>(1) Wills. Construction. Intestacy.</p> <p>Courts will construe a will so as to avoid partial intestacy if such construction appears reasonable and natural. In the absence of convincing evidence to the contrary it is to be presumed that a testator intends to dispose of his whole estate and that he does not intend to die intestate as to some portion thereof.</p> <p> (8) Wills. “Inure.” </p> <p>Testamentary provision “After paying all my just debts . . . it is my will that all toy estate . . . whether real personal or mixed . . . shall inure to X.”</p> <p>Held, that beneficiary took an absolute estate in the property.</p> <p>(3) Wills.</p> <p>A will was probated in 1907 and the executor qualified and died in 1918 without having administered the'estate. The will provided for the con- . version of the real estate into cash provided a stipulated price could be obtained and the proceeds deposited at interest until the beneficiary attained the age of 16 years. On bill for construction of will and for instructions as it appeared that the real estate could not be sold for the stipulated price, and beneficiary had already attained the age of 16 years, the administrator is advised not to make sale of the estate.</p> <p>(4) Wills. Inconsistent Clauses.</p> <p>Where a will in the 2nd paragraph disposes of all the estate and in a later paragraph provides for a payment to be expended on a burial lot, it was the intention of testator that such later expenditure should be made.</p> <p>(5) Wills. Construction.</p> <p>Where a will in one paragraph disposed of all the estate for the benefit of a young child who appeared to be the main object of testator’s bounty-and in a later paragraph provided that “the rest and residue of income shall be expended for clothing schooling and incidental expenses ” or as the executor might see fit — the executor being the father of the child, — the intent is clear that such income should be spent for the benefit of the child.</p>

<p>(-1) Claim for Services Rendered Intestate. Evidence.</p> <p>On a claim for services rendered intestate in his life time where the claim filed contained only one item for money loaned, evidence of claimant that when intestate was away, and there was not sufficient money for current expenses she some times paid the bills from her own funds was properly admitted, although'return of the loans with the one exception was admitted by claimant, as throwning some light on the nature and value of the services rendered.</p> <p>(#) Claim for Services Rendered Intestate. Evidence.</p> <p>On a claim for services rendered intestate it was not error to exclude a question on the part of the estate tending to show that claimant had not made any claim to the administrator or presented any bill to him prior to filing her claim under the statute through an attorney.</p> <p>(S) Claim for Services Rendered Intestate. Requests to Charge.</p> <p>On a claim for services rendered intestate requests to charge that if the jury found that intestate paid claimant for her work to a certain time, by depositing her compensation in a box over which she exercised control, which money claimant loaned intestate, nothing should be allowed claimant for her services prior to such date and nothing should be allowed for the loan since no claim for money .loaned was made, were properly refused where it was a question for the jury whether the control of the money deposited in the box ever passed to claimant thereby constituting payment for her services.</p> <p> (4) Bills of Exceptions. Stating Exceptions Separately. </p> <p>Where a bill of exceptions alleges that appellant took an exception to- the ruling denying the motion for a new trial and exceptions to other rulings and insists upon all of such exceptions and then specifies and numbers certain exceptions among which the exception to the denial of the motion for a new trial is not included, such exception is not before the court.</p>

<p>(1) Bequests in Perpetuity. Wills. Charitable Trusts. Burial Lots. Private Trusts,</p> <p>A bequest in trust to apply the income for the care of a burial lot is void as a private trust in perpetuity.</p>

<p>(1) Liability Insurance. Workmen’s Compensation. Actions. Parlies. Personal Injury Cases. Foreign Insurance Companies.</p> <p>Pub. Laws, cap. 1268, § 9, is not restricted to workmen’s compensation but provides for the protection of persons who sustain personal injuries for, which those who are liable have insured themselves against liability. It covers both domestic and foreign insurance companies.</p> <p> (8) Liability .Insurance. Workmen’s Compensation. Actions. Parties. Personal Injury Cases. Foreign Insurance Companies. . </p> <p>A foreign insurance company doing business in this State who has issued its policy of liability insurance subject to the provisions of Pub. Laws, cap. 1268, § 9, upon whom process has been served is liable to a resident of this State upon a cause of action arising in this State, and the plaintiff may bring his suit against such company directly or he may proceed against both the company, and the wrong doer (the insured) in one action and if plaintiff fails to secure service on one of the parties he may proceed against the party upon whom service has been made.</p> <p> (8) Construction of Statutes. </p> <p>Where the language of a statute is plain and unambiguous and the intention of the legislature is manifest therein, there is no occasion to resort to the title of the act or any other sources to discover either the meaning or the intent of the statute.</p>

<p>(1) Fiduciary Relation. Principal and Agent, Fund Impressed with Trust. Following Fund.</p> <p>Where one occupied a fiduciary relation to his principal as his investment agent and deposited a sum of money belonging to his principal together with money of his own, in his own personal account finally converting the fund into a cashier’s check, payable to his wife, the intermingled deposit was impressed with a trust in favor of the principal to the amount of the latter’s share, and the fact that the money of the principal was intermingled with that of the agent did not destroy the principal’s equitable title and his right to follow and reclaim it.</p> <p> (£) Fiduciary Relation. Principal and Agent. Trusts. Following Fund. </p> <p>Where one who occupied a fiduciary relation' as the investment agent of another, intermingled funds of his principal with his own and deposited the fund in a bank in his own personal account, and the bank subsequently went into the hands of a receiver, and prior to the receivership the agent had converted the fund into a cashier’s check payable to his wife, and the dividends on the claim were deposited by him in another bank, the delivery of the deposit book of the latter bank by the agent to the receiver to be held by the latter either as collateral security for the payment of the indebtedness of the agent to the bank or merely for the purpose of exerting an influence upon the agent to pay such indebtedness cannot affect the rights of the principal.</p> <p>{3) Fiduciary Relation. Principal and Agent. Trusts. Following Fund.</p> <p>Where one who occupied a fiduciary relation as the investment agent of another intermingled funds of his principal with his own and deposited the fund in a bank in his own personal account which subsequently went into the hands of a receiver, and prior to the receivership had converted the fund into a cashier’s check payable to his wife, the receiver is not entitled to enforce a lien on the claim against the bank in satisfaction of a judgment in favor of the receiver against the agent, where it does not appear the bank ever gave the agent any credit on the strength of the deposit.</p> <p> (4) Fiduciary Relation. Impressing Trust. Following Fund. </p> <p>Where one who occupied a fiduciary relation as the investment agent of another intermingled funds of his principal with his own and deposited the fund in a bank, in his own personal account, and at one time had drawn out the funds of the principal which amounted to over $10,000 to less than $100, part of the balance being represented by cashier’s checks he was' carrying and thereafter gathering together what funds of his principal he had and mingling them with some money of his own put the whole into a cashier’s check of $11,000 which was subsequently exchanged many times until at the time of the receivership of the bank the fund was represented by a cashier’s check for $7,800 in the name of the wife of the agent, the actual motive which prompted the agent to make the deposit of $11,000 was immaterial and he must be presumed to have restored the trust funds when he again replenished his personal account.</p>

<p>(1) Public Utilities. Regulation of Rates.</p> <p>Pub. Laws, 1624, approved April 18, 1918, gives clear and ample authority to the Public Utilities Commission to regulate the system of fares and transfers of the Rhode Island Company a common carrier operating a street railway system.</p> <p> (2) Public Utilities. 'Regulation of Rates. Receivers. </p> <p>Where increased revenue was required to continue the operation of a street railway system, the receivers of the company, having the duty of managing the property and conserving it against waste and loss, properly presented their petition to the Public Utilities Commission for an increase of fares, without requesting the authority so to do from the court which appointed them.</p> <p>(.9) Public Utilities. Regulation of Rates.</p> <p>Regulation of rates of fares of a public utility operating a street railway system, affects the general public and not merely the inhabitants of any particular locality, and the court cannot find that inequalities claimed by various municipalities in the rates warrant the charge of unjust discrimination.</p> <p> (4) Public Utilities. Regulation of Rates. Contracts. Municipal Corporations. </p> <p>Where a contract between a town and a street railway company had expired and no new contract was made, the company having previously accepted the provisions of Pub. Laws, cap. 580 (1898) the payments thereafter made to the town were made under the provisions of cap. 580, which was an act binding between the State and the assenting street railway company, to the provisions of which the assent of the various municipalities was neither provided for.nor required. .</p> <p> (5) Regulation of Rates. Public Utilities Commission, </p> <p>The paramount authority of the State to regulate rates of public utilities through the agency of a commission is well established.</p>

<p>(I) Evidence. Traffic Ordinances.</p> <p>In a personal injury action arising out of a collision between an automobile and a street railway car, a traffic ordinance of the city relative to the rule to be followed by vehicles in turning into another street was admissible on behalf of the plaintiff, as one of the circumstances which the jury might take into consideration in deciding the rights of the parties.</p> <p> {£) Traffic Ordinances. Charge to Jury. Rate of Speed. </p> <p>Where the court had explained the conditions under which a driver of an automobile might assume that a street railway car would not be run at a rate of speed in excess of that fixed by ordinance, charge that, as bearing upon the reasonableness of plaintiff’s conduct, he had the right to assume under those circumstances unless there was something reasonably calculated to indicate to the contrary, at the time and place, that the car was being operated there at a rate of speed not in excess of that required under the-ordinances, was proper.</p> <p>(S) Negligence. Street Railways. Last Clear Chance.</p> <p>When, at the time plaintiff commenced to drive his automobile into a cross street, if he had looked he should have seen an electric car coming toward him, and could have remained in a place of safety until the car had passed, his failure to look and see if there were a car coming within such distance as to deprive him of the right of way across the car tracks was negligence on his part, and in the emergency created by his negligent act when he could have driven his automobile to the far side of the street instead of attempting to complete a double curve by driving his machine towards the approaching car, his conduct was continuing negligence up to the time of the collision, and in the absence of any circumstances to the contrary plaintiff could assume that drivers of automobiles in the rear of the car, coming towards him on the far side of the street had their machines under control and would not be likely to run into him</p> <p> (4) Negligence. Street Railways. Proximate Cause. Last Clear Chance. </p> <p>Where plaintiff attempted to drive from an intersecting street into a street on which a trolley car was approaching and droveupon the tracks in an attempt to make a double curve across the tracks and return to the side of the street upon his right, the motorman was justified in assuming that plaintiff would not put himself in a place of danger and that when he did cross the tracks he would remain on the far side and the duty of the motorman to stop the car did not arise until plaintiff’s peril was apparent to him when he commenced to return to the other side of the street, and in view of the short distance between the machine and the car and the few seconds the motorman had to act in, under the testimony as to what the motorman did in that time it cannot be said that he was guilty of negligence in failing to stop his car before the collision.</p>

<p>(1) New Trial. Remittitur.</p> <p>Where on petition for new trial the justice presiding set the whole verdict aside because he was unable to determine the amount of the excess satisfactorily to himself, it was error for under Gen. Laws, cap 298, § 12, it was his duty to determine the amount which appeared to him to represent such excess and fix a remittitur; but in view of the decision of the justice, as bearing on the question of the credibility of plaintiff and from the unsatisfactory nature of all of plaintiff’s testimony and the grave doubt as to the validity of his claim as a whole, the decision unconditionally granting a new trial will not be disturbed.</p>

<p>Bill in Equity. Certified under Gen. Laws, oap. 289, § 35.</p>

<p> (1) Certification of Case for Final Decree. Equity. </p> <p>In an equity cause for an accounting issues were framed and the Superior Court referred the matter to a commissioner to take testimony. The cause was then referred to a master on the testimony to determine the issues of. fact. A report was filed and respondent excepted thereto, and without determining the exceptions the cause was certified to the Supreme Court for determination under Gen. Laws, cap. 289, § 35.</p> <p>Held, that such a cause could not be certified until after hearing for final decree and the exceptions to the master’s report must be determined before the cause could be heard in the Superior Court for final decree.</p> <p>Following Restino v. Tafuri, 43 R. I. 156.</p>

<p> (1) Landlord and Tenant. Eviction. Covenants. </p> <p>The allegation of an eviction by the holder of the paramount title superior to that of the lessor, does not set out a breach of a covenant by lessor with lessee that lessee might hold the premises during the term, without disturbance by lessor or one holding a derivative title from him.</p> <p> (2) Leases. Express and Implied Covenants. </p> <p>Where a lease contains an express covenant, none will be implied which is inconsistent with that expressed.</p> <p> (S) Landlord and Tenant. Covenant for Quiet Enjoyment. Implied Covenants. </p> <p>An express covenant in a lease for years that lessee may peacefully enjoy the premises without hindrance by lessor or persons claiming under him, excludes the implication of a covenant of quiet enjoyment against a stranger holding the paramount title.</p>

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

<p>. (I) Pleading Workmen’s Compensation Law as Special Defence.</p> <p>The defence that plaintiff in a personal injury case had been paid compensation by her employer in accordance with an agreement made under the provisions of the Workmen’s Compensation Act should be specially pleaded, and such evidence cannot be shown under the general issue, since this is a statutory defence of recent origin and did not exist at common law.</p> <p> (%) Negligence. Ordinary Care. </p> <p>In a personal injury action arising from the leaking of acid through the floor, injuring plaintiff, an employee upon a floor below, charge that it was the duty of defendant to use what would be called ordinary care and diligence for the safety of those in other sections of the building, was a correct statement of the law.</p> <p> (S) Negligence. Ordinary Care. </p> <p>In a personal injury case, arising from the leaking of acid used by defendants in their business of manufacturing jewelers through the floor and injuring plaintiff an employee of another manufacturing company on the floor below, a charge that left to the jury to determine whether defendant made such an investigation of the flasks as would lead them absolutely to know that they were sound and that there was no crack in them was prejudicial error, as defendant was required to use only ordinary care and diligence in making an investigation as to the condition of the soundness of the flasks, and was not required to be an insurer of their condition.</p>

<p>Special Case stated for opinion under Gen. Laws, 1909, cap. 289, § 20.</p>

<p> (1) Trial Polling Jurors. </p> <p>The practice in this State in relation to the polling of jurors rests in the discretion of the court and the refusal of the court to permit a poll'of the jurors to determine if any had read a newspaper account of the trial, not appearing to be an abuse of discretion, operating to the defendant’s prejudice, is not reviewable.</p> <p>(0) Trial: Talcing Case from. Jury.</p> <p>The refusal of the court to take a case from the jury because of the circulation in the court room of a newspaper containing an alleged improper article, was not error where it does not appear that any juror read the article, nor that it was inspired by the prosecution and where the court instructed the jury as to their duty, since it will be presumed that a jury acted properly until misbehavior is proved.</p>

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

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

<p>(I) Certiorari. Exceptions.</p> <p>Where the lower court denied a motion to dismiss for lack of jurisdiction, and decided that it had jurisdiction of a cause, certiorari will not lie to restrain it from usurping jurisdiction, for defendant has an adequate remedy ■under the statute by prosecuting his exception to such ruling.</p>

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

<p> (1) Specific Legacies. Wills. </p> <p>Where a testator bequeathed to his widow a specific number of shares of stock in two corporations and a specific number of bonds in another corporation, and at the time of the execution of the will and at his decease owned the exact number of bonds and at the time of executing the will owned the exact number of shares in one corporation and at his decease owned the original number and also certain other shares which he acquired later and at the time of executing the will and at his decease owned more than the number of shares bequeathed in the other corporation, the bequest being closely associated in the same clause with other gifts clearly specific, all of the bequests being in lieu of dower, the will shows an intention to make a specific bequest of the stocks and bonds.</p> <p> (8) Wills. Bequest in Lieu of Dower. </p> <p>Where a testator makes a bequest to his widow in lieu of dower he gives her a legacy which has a preference over all other gifts and in this respect the gift resembles a specific rather than a general legacy although the court does not hold that such a gift is for that reason specific, but it is a fact to be considered in arriving at the testator’s intention.</p> <p> (S) Wills. Legacies in Lieu of Dower. </p> <p>Under Gen. Laws, cap. 254, § 25, a legacy in lieu of dower must be satisfied' in preference to all other gifts.</p> <p> (4) Wills. Legacy in Lieu of Dower. Abatement. </p> <p>A widow by accepting a provision in lieu of dower and of the right to participate in the distribution of his personal estate becomes a purchaser for valuable consideration and entitled to receive all given her by the will, although other legacies are required to abate.</p> <p> (5) Wills. Dividends on Specific Legacies. </p> <p>The executor is entitled to the dividends on a specific legacy of the capital stock of a corporation, including the stock dividends declared before the death of the testator but payable thereafter.</p> <p>(i6) Wills. Interest on Bonds.</p> <p>Whenever interest is payable at stated intervals, not in advance but after it is earned, as on coupon bonds, it goes to the person who owns the bond when the interest is payable.</p>

<p>Bill in Equity.</p>

<p> (1) Appeal and Error. Finding of Superior Court Conclusive. </p> <p>Where no appeal is taken from a finding of the Superior Court its ruling on that point is conclusive, in appellate proceedings in the cause.</p> <p> (2) Probate Law. Estates of Incompetents. Superior Court. Equity. </p> <p>The Superior Court has no inherent power and the statutes defining its powers do not invest it with authority to direct the carrying out by the estate of an incompetent of an arrangement not of a contractual nature, made while the incompetent was compos mentis, with one not a relative for the care and management of certain real estate, and the continuance of an allowance by the estate of incompetent to meet the expenses, on the ground that such arrangement was agreeable to the incompetent and to some extent beneficial to her estate and there being no financial reason for making any change she would have continued the same during her life had she remained compos mentis.</p> <p>(3) Equity. Probate Law. Estates of Incompetents.</p> <p>On a bill in equity seeking to compel the carrying out of an arrangement made by an incompetent while compos mentis with the complainant, by the estate of incompetent, involving the care and management of real estate and the payment of an allowance for the expenses of complainant, the rights of respondent to have ascertained and provision made for payment by complainant of a fair rental for the property for the period between the date of the notice by conservator to complainant that his occupancy of the estate would be terminated and the death of the incompetent cannot be considered but the conservator must seek her rights in another proceeding.</p> <p> (4) Estates of Incompetents. Probate Courts. </p> <p>In this State, long before the adoption of the constitution, the General Assembly had placed persons unable tp care for themselves together with their estates in the care of courts of probate.</p> <p>Sweetland, C. J., and Rathbun, J., concurring.</p>

<p>(1) Constitutional Law. Corporate Excess Tax.</p> <p>Pub. Laws, 1912, cap. 769, § 11, sub. sec. (2) as amended by Pub. Laws, cap. 784; § 3, which authorizes the Board of Tax Commissioners in the case of manufacturing corporations or corporations which derive their profits from the sale or use of tangible personal property when such corporations also do business outside this State, to apportion to this State Such a proportion of the value of the property ascertained under the provisions of the Act, as the fair cash value of their real estate and tangible personal property in this State bears to the fair cash value of their entire real estate and tangible personal property then used in their business, and in any case to which these proportions are not equitably applicable, in such proportion as is equitable, is not in violation of Art. Ill and of sec. 2 of Art. IV of the Cons. R. I., as a delegation to the Board of Tax Commissioners of legislative power or of the taxing power in violation of sec. 10 and 15 of Art. IV, nor does it violate Art. I sec. 2, as an unfair.distribution of the burdens of the State, and as a law not made for the good of the whole nor is it in violation of either the due process clause or the equal protection clause of the fourteenth amendment of the Cons. U. S.</p>

<p>Consolidated Probate Appeal.</p>

<p> (1) Trespass and Ejectment. Notice to Quit. </p> <p>A tenant under a written lease for the term of one year is not entitled to notice to vacate; Gen. Laws, 19Q9, cap 334, § 6, providing that “the time agreed upon in a definite letting shall be the time of the termination thereof for all purposes.”</p> <p> (2) Trespass and Ejectment. </p> <p>A lessor is not prejudiced in relation to ejectment proceedings by receiving through the mail after the termination of a written lease for a definite term, a check from the lessee for the purpose of paying the rent, which check lessor did not collect but turned over to his attorney to be returned to lessee.</p> <p> (8) Landlord and Tenant. Tenant by Sufferance. Notice to Quit. </p> <p>A tenant for a definite term holding over without a new contract, becomes a tenant by sufferance, and as such entitled to notice to quit, only by the laches of the lessor and if lessor acts promptly he may treat lessee as a trespasser and without giving notice to quit commence ejectment proceedings against him, but if lessor does not within a reasonable time proceed against lessee the latter will be entitled to notice.</p> <p> (4) Landlord and Tenant. Tenant by Sufferance. Notice to Quit. </p> <p>A lessor who causes a writ of trespass and ejectment to be served within two days after the expiration of a tenancy for a definite term, acts with due diligence and lessee is not entitled to notice to quit as a tenant by sufferance.</p>

<p>(1) Bills and Notes. Note Delivered Conditionally. Evidence.</p> <p>Testimony tending to prove that a promissory note was delivered without' consideration, and conditionally and for a special purpose only is admissible under Gen. Laws, 1909, cap. 200, § 22, as between the immediate parties.</p>

<p>(1) Pleading.' Trial. Motion io strike Out Count.</p> <p>As the proof mnst substantially sustain the cause of action alleged a motion to strike out a count as not supported by the evidence should have been granted, where there was no legal evidence tending to support the count.</p> <p> (2) Pleading. Common Counts. New Trial. Damages. </p> <p>Under the common counts for work and labor, plaintiff must show the reasonable worth of the services performed, and in the absence of any testimony upon this point the jury and the court can allow plaintiff only nominal damages and not a substantial sum based upon conjecture or speculation.</p>

<p>(1) Brokers. Commissions. Defective Title.</p> <p>In the absence of any stipulation in the contract making the payment of a . commission to a broker dependent upon the title of his principal and in the absence of any knowledge of a defect in title by the broker, a broker who has procured a purchaser, willing, able and ready to take property upon the terms offered by his principal is entitled to recover the amount of his commission notwithstanding the fact that the sale was not con*summated owing to defective title.</p>

<p>(1) Attorney at Law. Unprofessional Conduct.</p> <p>On charge of unprofessional conduct against a member of the bar, evidence considered and respondent found guilty of gross official misconduct, in making false charges maliciously against the integrity of justices of the court and respondent disciplined.</p>

<p> (1) Equity Pleading and Practice. Final Decree. Appeal. </p> <p>Although the right to take an immediate appeal in equity causes in certain cases other than those specified in Gen. Laws, cap. 289, § 34, may be allowed, where o therwise an appeal in the regular order would be ineffectual, it is not sufficient to bring a case within this exception to the general rule that the party aggrieved by the interlocutory decree may suffer some injury or prejudice if he is compelled to wait for the disposition of the entire cause before taking his appeal but the injury apprehended must be shown to be clearly imminent and irreparable unless an immediate appeal is allowed. Neither is mere convenience as the avoidance of a multiplicity of suits sufficient.</p> <p> (2) Equity Pleading and Practice. Final Decree. Appeal. </p> <p>As the exceptional right to take an immediate appeal in order to prevent irreparable injury rather than because of the strict finality of the decree is allowed to the party aggrieved for his benefit and to prevent injustice, such party may elect to take his appeal forthwith or in the regular course, and a failure to take such immediate appeal does not deprive him of his right to an appeal from the decree to which objection is made at the termination of the proceedings in the Superior Court.</p>

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

<p>(1) “Real Estate’’ Construction of Statutes.</p> <p>While the term “real estate” is frequently used to denote lands or physical real property and must be given that interpretation in the construction of constitutional and statutory provisions when required by the context, in its primary and technical meaning it signifies the quantity of interest which a person has in land including all save a'mere chattel interest.</p> <p> (2) “Real Estate.” Elections. </p> <p>In Cons. R. I. Art. II, sec. 1, “Every male eitizen . . . who is really and truly possessed in his own right of real estate in- such town or city of the value of $134 ...” the term “real estate” is used in its strict legal sense, meaning an estate in land rather than the land itself:</p> <p> (8) Elections. Construction of Statutes. </p> <p>In Cons. R. I. Art. II, sec. 1, “Every male citizen . . . who is really and truly possessed in his own right of real estate in such town or city of the value of $134 . . . being an estate in fee-simple, fee tail, for the life of any person, or an estate in reversion or remainder, which qualifies no other person to vote . . the relative “which” limits the phrase “or an estate in reversion or remainder.”</p> <p> (4) Elections. Curtesy Initiate. </p> <p>One having an estate of curtesy initiate, of more than one hundred and thirty-four dollars in value and being otherwise qualified, was properly placed upon the real estate voting list of a city, although the name of the wife owning the fee was also placed upon the same list.</p> <p>The meaning of the word “Value” appearing in Cons. R. I. Art. II, sec. 1, when applied to an estate in reversion or remainder is not passed upon.</p>

<p>(1) Equity. Final Decree. Appeal.</p> <p>A decree, in a bill for specific performance ordering the conveyance of title subject to a dower right, and referring the cause to a master to determine the allowance to be made for the dower right is not a final decree subject to appeal under the provisions of Gen. Laws, cap. 289, § 25.</p> <p>Robert v. Rousseau, 28 R. I. 335, so far as it conflicts with the rule laid down in McAuslan v. McAuslan, 34 R. I. 462, and later cases overruled.</p>

<p>Bill in Equity on facts fully stated in opinion.</p>

<p>(1) Wills.</p> <p>Where it is not shown that a testator was of unsound mind or that a will was defective in form or execution, the burden is on a contestant to show that the will was improperly obtained.</p> <p>0?) Wills. Interpreter.</p> <p>A person who does not understand the language in which a will is written may make a valid will with the assistance of an interpreter.</p> <p>(S) Wills. Presumptions.</p> <p>There is always a presumption that one knows the contents of a writing which he signs until the contrary is shown, and this presumption applies with peculiar force to wills.</p>

<p>(1) Accord and Satisfaction.</p> <p>In an action where defendant claimed an accord and satisfaction, through the sending of a check marked “in full for all indebtedness” which plaintiff accepted and cashed after erasing the restrictive words, plaintiff was entitled to present the question for determination whether the settlement between the parties was effected not alone'by the payment of such sum but also in part by. a new contract whereby plaintiff was to render certain further services to defendant calling for further remuneration, and it was error to hold that there being evidence of a bona fide dispute as to the amount of plaintiff's bill, acceptance of the check was an accord and satisfaction.</p>

<p> (1) Brokers. Disclosing Interest to Principal. </p> <p>A real estate broker with whom real estate has been listed for sale cannot become the purchaser of it or be interested in the purchase of it unless his interest is disclosed to the principal.</p> <p> (2) Brokers. Disclosing Interest to Principal. Specific Performance. </p> <p>Complainant was acting as a real estate broker and listed property of respondent for sale. Complainant told respondent he would like to see what, he could do for her in the sale of her property and afterwards showed it to prospective purchasers. Respondent testified that complainant referred to other parties whom he represented as wanting the property.</p> <p>An agreement to sell the property to complainant which complainant wrote and induced respondent, a woman 74 years old, to sign was not signed by complainant and did not require him or any other person to purchase the property. Complainant left with respondent the check of a third party.</p> <p>Held, on the evidence respondent never assented to complainant becoming a. purchaser of her property.'</p>

<p>Appeal under Pub. Laws, cap. 1914.</p>

<p> (1) Soldier’s Bonus. </p> <p>Pub. Laws, 1832, Jan. 1920, “The Soldier’s Bonus Act,” so-called, does not grant the right to a bonus to a man who was inducted into the military service of the United States, but promptly rejected at a cantonment as unfit for military service, and who was never mustered into the service.</p>

<p>Bill in Equity for construction of will. Certified under cap. 289, § 35.</p>

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

<p>Bill in Equity for specific performance and other relief.</p>

<p>(1) Interpleader. Appeal.</p> <p>One of the respondents to a bill of interpleader is not aggrieved by a decree dismissing the bill on motion of the other respondent, and his appeal from the decree of dismissal will be dismissed.</p> <p> (8) Interpleader. Appeal. </p> <p>On appeal of complainant and one of the respondents from a decree dismissing a bill of interpleader, the respondent is entitled to be heard as to the nature of his claim, since it is essential to interpleader that all the adverse titles be of the same nature and character, although respondent cannot appeal from the decree.</p>

<p>(1) Indictments. Confessions.</p> <p>The voluntary confession of a defendant made while under arrest to a police officer having defendant in custody, made without inducement by the expectation of any promised benefit nor by fear of any threatened injury is admissible, although defendant was not cautioned that his statements might be used against him.</p> <p> (2) Evidence. Indictments. </p> <p>Where defendant voluntarily stated to a police officer that he threw away the knife with which he had committed an assault and the knife in his pocket was another one, motion to strike out all answers relative to the latter knife was properly denied, for a portion of the testimony was admissible and defendant was not prejudiced by the production of the knife before the jury nor by the answers relative thereto which were not strictly admissible for it cannot be presumed that any reflection would be made against defendant for the possession of an ordinary pocket knife.</p>

<p> (1) Mortgages. Negotiable Instruments. Equities. </p> <p>A mortgage and mortgage note subject to equities between the parties was transferred by the mortgagee to a holder for value without notice who in turn transferred to respondent.</p> <p>Held, that under Gen. Laws, 1909, cap. 200, § 64, whatever the knowledge of respondent might be as to the equities between the original parties, he was protected in his right to possession.</p>

<p>Bill in Equity on facts stated in opinion.</p>

<p>(1) Husband and Wife. Necessaries.</p> <p>Where a husband without justifiable cause failed to provide his wife with adequate means of support, and was living apart from her, and plaintiff who had nursed the wife at the husband’s request also furnished the wife necessary household supplies and money which was expended for supplies for the reasonable support of-the wife, a verdict for plaintiff for the value of the services, supplies and advances will not be disturbed.</p> <p> (2) Writs. Ad damnum. Increasing Ad damnum. </p> <p>Where in a case commenced in a district court, plaintiff obtained permission in the Superior Court to increase the ad damnum, but the amendment was. never made, although the case was tried on the theory that it had been made, on exceptions the case will be treated as though the amendment, had been made and permission will be granted to make the amendment.</p> <p>(S) District Court. Verdict in Excess of Jurisdiction.</p> <p>Where in an action commenced in a district court the verdict in the Superior Court was in excess of the jurisdiction of the lower court, on exceptions, plaintiff may waive such excess.</p>

<p>(1) Divorce. Venue. Petition by Non-Resident.</p> <p>Under Gen. Laws, 1909, cap. 247, § 11, providing that petitions for divorce shall be filed, heard and tried in Providence county unless the petitioner shall reside in the county of Newport, Washington or Kent, in which case the petition shall be filed in the county where the petitioner resides, a petition for divorce by a non-resident against his wife, a domiciled inhabitant of this State, a resident of the county of Washington, is properly filed in the county of Providence.</p> <p> ($) Divorce. Cross Petition. Relief. </p> <p>When a petition for divorce is filed in Providence county by a non-resident against his wife, a domiciled inhabitant of Washington county, the wife may file a cross petition (or a statement in her answer or motion in the nature of a cross petition) for divorce on wholly different grounds.</p> <p> (8) Divorce. Cross Petition. Discontinuance. </p> <p>When a'petition for divorce is'filed in Providence county by a non-resident against his wife, a domiciled inhabitant of Washington county and the wife has filed a cross petition (or a statement in her answer or motion in the nature of a cross petition) for divorce on wholly different grounds, the wife can maintain her cross petition and the court will not permit the original petition to be discontinued if it should appear her rights would be impaired, but even if permitted it would not dispose of her cross bill but it would remain for disposition in the same manner as if it had been filed as an original bill, and this although petitioner had not been served with process other than the filing of the cross petition.</p> <p>(4) Divorce. Venue.</p> <p>When a petition for divorce has been filed in Providence county by a nonresident against his wife a domiciled inhabitant of Washington county, the wife may file an independent petition for divorce in Washington county, based on different grounds, provided she has not elected to file a cross petition praying for an absolute divorce in the proceedings in Providence county.</p> <p>(5) Divorce. Venue.</p> <p>When a petition for divorce has been filed in Providence county by a nonresident against his wife a domiciled inhabitant of Washington county, and the latter has filed a cross petition (or answer or motion containing a statement in the nature of a cross petition) for divorce on wholly different grounds, she cannot later file an independent petition in Washington county based upon the same grounds as her cross petition, before being permitted by the court to discontinue her cross petition in Providence county.</p>

<p>Bill in Equity on facts stated in full in opinion.</p>

<p> (1) Garnishment. Property in hands of Police Officer. </p> <p>Property taken from a prisoner at the time of his arrest by an officer, to be used if necessary as evidence in the criminal proceedings, is subject to garnishment in the hands of such officer, where there is no collusion between the creditors and the officer. ' -</p>

<p>Bill in Equity.</p>

<p>Information in nature of quo warranto.</p>

<p>(1) Exceptions to Decisions Prior to Trial.</p> <p>"Where a declaration contained two counts and at the trial decision was rendered for plaintiff on the second count, exception to a prior decision overruling demurrer to first count will not be considered under Gen. Laws, cap. 298, § 24, providing that “exceptions to decisions prior to trial shall be open to revision after verdict or final decision on the merits, but so far only as it appears to the supreme court that the verdict or final decision was erroneously affected thereby.”</p> <p> {%) Pleading. Duplicity. Insurance. </p> <p>Where declaration alleged that plaintiff insured his truck against fire; that it was damaged by fire; that defendant company was notified of the loss and under a provision of the policy notified plaintiff that it would repair it within a reasonable time and took possession of the truck, but delayed an unreasonable time in making repairs, whereby plaintiff lost the profits he would have made from its use and that it was improperly housed causing it to depreciate in value, the allegations as to the issuing of the policy, the fire and the consequent damage are matters of inducement to the averment that the company notified plaintiff of its intention to repair within a reasonable time, and the declaration being based on the breach of duty to so repair, is not bad for duplicity.</p> <p> (8) Insurance. Pleading. Declarations. </p> <p>Where an insurance company elected to repair a truck damaged by fire, instead of making payment under the policy of insurance the contract to pay the loss is superceded by the contract to repair and where the declaration alleged that the company delayed an unreasonable time causing loss of profits and depreciation of the truck, demurrer on the ground that the damages claimed were not provided for by the contract of insurance will be overruled.</p> <p> H) Insurance. Damages. </p> <p>In an action under a policy of fire insurance for not repairing a truck within a reasonable time causing loss of profits and also depreciation in value through improper housing of the truck during the time the company had possession of it, evidence as to depreciation in value of the truck while it was in possession of the company, and as to damages caused after its repair and while it was unlawfully held by the company considered and held to sustain findings of the trial court.</p>

<p>Trespass and Ejectment.</p>

<p>(1) Elections. Caucuses. Constitutional Law.</p> <p>Cap. 1989 sec. 8 Pub. Laws 1920 “An act in relation to the holding of caucuses in the town of Jamestown,” is not unconstitutional by reason of its retroactive provisions in relation to computing the period of twenty-six calendar months.</p> <p>0®) Caucuses. Computing Time.</p> <p>Under the provisions of Pub. Laws, 1920, cap. 1989, the town cleric of a town should compute the period of twenty-six months prior to the date of each caucus in preparing the voting lists for use in caucuses in said town.</p> <p> (8) Elections. Caucuses. Constitutional Law. </p> <p>The right which Art. II sec. 1 of the constitution of Rhode Island guarantees is the right to vote in the election of civil officers and the word “election” as used in the constitution does not refer to a caucus held for the purpose of naming the candidates of a political party.</p> <p> (4) Elections. Caucuses. Constitutional Law. </p> <p>The right to vote in a caucus is not a private right such as a contract right property right or a right guaranteed under the constitution but rather a ■ private privilege granted by the legislature under its general power to regulate elections under Cons. R. I. Art. II, sec. 6, and Pub. Laws, 1920, cap. 1989, takes away no constitutional right but only defines the conditions under which the voter may exercise his privilege to vote for the nomination of candidates.</p>

<p>(1) Taxes. Filing Assessment Boll. Time.</p> <p>Where the assessment of a tax was in all other respects regular, the fact that , the assessors failed to complete the. assessment and file the assessment roll in the office of the city clerk within the time fixed by the ordinance ordering the levy and collection of the tax, will not invalidate the tax where the delay did not deprive the taxpayer of any substantial right.</p> <p>'(#) Taxes. Filing Assessment Roll. Time. Voluntary Payment.</p> <p>Where the ordinance ordering the levy and collection of a tax provided that the assessors should deposit the assessment roll with the city clerk on or before June 25 and that the tax should be payable between July 1 and August 31 with a penalty of 12 per cent, on all taxes remaining unpaid on August 31, and the roll was not deposited until September 6, and on August 30th plaintiff paid his tax under protest, an action will not he to recover the amount so paid, for the payment was voluntary, as the tax collector when the money was paid had no authority to receive taxes, and the tax was not due and the collector received the money in his individual capacity and when the taxes became due applied the sum to the payment of the plaintiff’s tax.</p> <p> iS) Taxes. Voluntary Payment. Recovery. </p> <p>A tax which is paid voluntarily cannot be recovered.</p> <p> (4) Taxes. Payment under Protest. Penalty. </p> <p>Where the ordinance ordering the levy and collection of a tax provided that the assessors should deposit the assessment roll with the city clerk on or before June 25 and that the tax should be payable between July 1 and August 31 with a penalty of 12 per cent, on all taxes remaining unpaid on August 31 and the roll was not deposited until September 6 and on August 30th plaintiff paid his tax under protest, the tax cannot be recovered on the ground that the taxpayer was'subjeeted to a penalty for not paying his tax before the tax roll was filed for the tax could not be due before the tax roll was filed, and the taxpayer could not be subjected to a penalty for not paying a tax before it was due, andr would be entitled to a reasonable time to pay his tax after the roll was filed.</p>

<p>Appeals from decrees of Superior Court, on petitions under Inheritance Tax Act of 1916 and appeals sustained and decrees reversed.</p>

<p>(1) Probate Courts. Allowance to Widow. Dower.</p> <p>A Probate Court has authority to make an additional allowance to the widow under Gen. Laws, 1909, cap. 313, § 9, only after assignment of dower has first been made.</p> <p> (£) Assignment of Dower. </p> <p>A petition to a' Probate Court for assignment of dower is in effect an action at law.</p> <p>(S) Assignment of Dower. Fixed Rentals.</p> <p>A Probate. Court has under Gen. Laws, 1909, cap! 329, § 17, discretionary power to assign dower either by metes and bounds or by the establishment of a fixed rental, but the provision for fixed rental can be waived by the parties which is in effect done by assenting to a decree dividing the rentals on the basis of the net amount actually received and the absence of express statutory authority for this action is not necessarily decisive.</p>

<p>Bill in Equity to remove cloud on title.</p>

<p>C1) Divorce. New Trial.</p> <p>Within seven days after decision granting a petition for divorce a respondent can filé a motion for new trial on the ground of newly discovered evidence, but on no other ground.</p> <p> (S) Divorce. Reinstating Case. Review. </p> <p>After the expiration of seven days after notice of decision on the merits and before the entry of final decree, motions to reinstate petitions for divorce are addressed to the discretion of the Superior Court, and unless the court clearly abuses its discretion, in granting or denying such, motions its action will not.be reviewed.</p> <p> (S) Divorce. Review. </p> <p>Where on a petition for divorce, respondent appeared and defended, and the question of jurisdiction was a question of fact, determined by the court in favor of the petitioner, and respondent took no steps to review such decision within the statutory period, and where the justice who heard the case has also heard the respondents motion subsequently filed to vacate the decision on the ground of want of jurisdiction over the parties, and has denied the motion, the court finds no abuse of discretion in such action and his decision will not be reviewed.</p>

<p> (1) ' Specific Performance. Agency. Memorandum. Statute of Frauds. </p> <p>Authorization to make a contract for the sale of real estate may be by parol and the authority to make the contract confers authority to sign the written note or memorandum which renders such contract effective and binding.</p>

<p>Petitions for assessment of damages, under condemnation proceedings.</p>

<p>(1) Divorce. Living Separate and Apart. Abuse of Discretion. Exceptions.</p> <p>A denial of a petition for divorce on the ground of living separate and apart for the space of ten years, if denied in the exercise of the discretion given the court by Gen. Laws, cap. 247, § 3, will not be reviewed unless it clearly appears that the action of the court was an abuse of the discretion conferred, but where the court bases its decision upon a construction of the statute such action presents a question of law reviewable upon petitioner’s exception.</p> <p> (8) Divorce. Parties Diving Separate and Apart for Ten Years. </p> <p>To warrant the court in granting a divorce under Gen. Laws, cap. 247, § 3, on the ground that the parties had lived separate and apart for at least ten years, the respondent throughout the period during which the parties have lived apart must have been of normal mental capacity in order to understand the relations existing between the parties, to form a rational desire to end the separation and to take action regarding a reconciliation.</p>

<p>(1) Elections. Ballots. Voting Marks. Certiorari.</p> <p>Whether the marks.placed upon his ballot by a voter conform to the statutory requirements for a legal ballot, is a question of law rather than of fact, and can be reviewed by certiorari.</p> <p> (2) Elections. Ballots. Voting Marks. </p> <p>In passing upon the marking of a ballot by a voter, each case must be determined after an examination of the particular mark objected to, but as a general rule, if the additional mark or marks in question are not of a kind likely to be used for the purpose of identification, and appear to have been made accidentally, or by unskillful handling of the pencil, and their presence on the ballot appears consistent with an honest intention in the voter, then a reasonable construction of the statute requires that the voter should not be disfranchised for this reason, and the ballot should be counted.</p> <p> (S) Elections. Ballots. Voting Marks. </p> <p>Writing on the ballot the names of candidates for whom a voter had already voted, by placing a cross opposite their names, resulted in placing upon the ballot marks by which it could be identified, and the ballot was properly rejected.</p> <p> '(4) Elections. Ballots. Voting Marks. </p> <p>A ballot was properly rejected as bearing a distinguishing mark where the voter attempted to erase a cross which he had marked upon his ballot.</p> <p> 46) Elections. Ballots. Voting Marks. </p> <p>A ballot bearing a cross at the right of the name of a candidate but at the left and wholly outside of the voting square was properly counted as a legal ballot.</p> <p> •{6) Elections. Ballots. Voting Marks. </p> <p>A ballot marked in the circle under the party emblem, the mark consisting of two separate and distinct lines, approximately parallel intersected by two other separate and distinct lines approximately parallel, the two extra lines appearing to have been made deliberately, is not a legal ballot.</p> <p>'(7) Elections. Ballots. Voting Marks.</p> <p>A ballot marked in the circle under the party emblem, the two ends of the two lines being connected should not be rejected as containing a distinguishing mark, it being apparent the voter made the cross and inadvertently by a slip of the pencil connected the-ends.</p> <p> (8) Elections. Ballots. Voting Marks. </p> <p>A ballot marked with a triangle with the lines forming two of its sides extended crossing each other, the mark apparently being deliberately made, should be rejected as containing a distinguishing mark. -</p> <p> {&) Elections. Ballots. Voting Marks. </p> <p>Where the voter made the cross in the circle under the party emblem and cancelled all names in that column except the name of the candidate for mayor, the cancellation of the name of the opposing candidate for mayor was a deliberate act which placed a distinguishing mark upon the ballot.</p> <p> {10) Elections. Ballots. Voting Marks. </p> <p>A mark consisting of one line intersecting two other lines which meet at a point is not the mark required by statute and the ballot should be rejected.</p> <p> {11) Ballots. Elections. Voting Marks. </p> <p>A mark consisting of a double cross made by one line intersecting two separate and distinct parallel lines not appearing to. be the result of accident is not the mark required by statute and the ballot should be rejected.</p> <p> {IS) Ballots. Elections. Voting Marks. </p> <p>A ballot with a small dot near the end of one of the lines, forming the cross apparently made by inadvertance and not a mark likely to be used for identification was properly counted.</p> <p> {IS) Elections. Ballots. Voting Marks. </p> <p>A ballot with a cross formed by the intersection of a vertical and a horizontal line, the latter line having the appearance of having been traced from one end to the point of intersection from which point a line was drawn close beside and forming a small interior angle with the other half of the horizontal line, neither of the two. original lines being more than 3-16ths of an inch in length and the short line which formed an angle with half of the horizontal line being about l-16th of an inch in length, the tracing and the short line having the appearance of being the result of an involuntary movement of the hand, was properly counted.</p> <p> (14) Elections. Ballots. Voting Marks. </p> <p>A ballot where the voter marked in the voting squares and not in one of the circles and cancelled the names of candidates against whom he had voted, was defective as .bearing distinguishing marks.</p> <p> (15) Elections. Ballots: Voting Marks. </p> <p>Where a ballot contained a (X) in the circle, and a (X) in the square at the right of a candidate’s name in the same column had been erased, the erasure constituted a distinguishing mark.</p> <p> (16) Elections. Ballots. Voting Marks. </p> <p>A ballot containing a (X) at the right of the candidate’s name, although not within the square was properly counted as the voter unquestionably intended to vote for the candidate.</p> <p> (17) Elections. Ballots. Voting Marks. </p> <p>Where a voter placed a cross in the square at the right of each name in the party column, and also placed a cross at the right of the words “for district clerk” the latter cross constituted a distinguishing mark.</p> <p> (18) Elections. Ballots. Voting Marks. </p> <p>Where the voter in making the cross on a ballot attempted to display artistic skill, the result not being a cross made by two lin'es crossing each other the ballot was defective as bearing a distinguishing mark, and also for not containing the (X) as required by statute.</p> <p> (19) Elections. Ballots. Voting Marks. </p> <p>Where a voter in the square at the right of the name of a candidate placed a monogram composed of two capital letters the ballot was properly rejected as containing a distinguishing mark'.</p> <p> (20) Elections. Ballots. Voting Marks. </p> <p>Where a voter in the square at the right of the name of a candidate placed a capital letter “T” it being apparent the voter intended to make a (X) and not a letter “T” the mark is not a distinguishing mark and the ballot was properly, counted.</p>

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

<p>Bill in Equity seeking instructions by trustee. Certified under Gen. Laws, 1909, cap. 289,' § 35.</p>

<p>(1) Pleading. Amended Declaration.</p> <p>The filing of an amended declaration eliminates the original declaration.</p> <p> •(2) Pleading. Trespass. Case. Writs. </p> <p>A writ in trespass will support a declaration containing a single count in trespass on the case.</p> <p>(3) Assault. Excessive Force. Burden of Proof. Justification.</p> <p>Where in a declaration sounding in trespass on the case, the basis of the action is the use of unnecessary and excessive force by defendant's servant, the burden of establishing the allegation of the use of excessive force rested upon plaintiff, and the burden of proof did not shift to defendant, and under the plea of the general issue defendant was entitled to introduce evidence of justification and the fact that defendant filed a special plea of justification which under the circumstances was superfluous did not change the burden of proof nor did it amount to an admission by defendant of the commission of an assault.</p>

<p> (1) Eminent Domain. Grade Crossings. Consequential Damages. </p> <p>Pub. Laws, cap. 1705, “an act conferring additional powers and duties upon the Pawtucket & Central Falls Grade Crossing Commission,” amending Pub. Laws, cap. 896, gives no new or additional right to compensation over the right contained in the original act and such right of recovery is limited to legal damages only and does not cover indirect or consequential damages caused to a wholesale provision business by removal of a spur track causing additional expense to the carrying on of the business.</p>

<p> (1) Elections. Ballots. </p> <p>Under Gen. Laws, 1909, cap. 11, § 43, it is not necessary that the voter make a (X) in the square after the name which he has written, as the intention of the voter is clearly expressed by writing the name of .the person for whom he desires to vote.</p>

<p>{1) Depositions. Time. Notice.</p> <p>Where the trial court found that notice of the taking of a deposition had been given to the other side under the provisions of Gen. Laws, 1909, cap. 292, § 26, within such reasonable time as would have permitted the adverse party to be present in person or by attorney, his determination will not be disturbed unless it is made to appear clearly that it is unwarranted.'</p>

<p>(1) Easements. Private Ways.</p> <p>Where it was provided in an agreement for a right of way in favor of B. and C. over the land of D. that “whenever a road shall be laid out through the land of D. in any other way than the above mentioned driftway, that then the ways above mentioned shall cease,” and thereafter a public highway was laid out through the land of D., thereupon the private ways for the use of B. and C. ceased by the express terms of the agreement.</p> <p> ($) Easements. Limitation of Right. </p> <p>Where parties have manifested an intention to limit the duration of a right of passage, it is the duty of the court to enforce that limitation and not give a perpetual right where only a determinable one was intended.</p> <p>(S) Easements. Deeds. Recitals.</p> <p>In an action for obstruction of a right of way, recitals in the deed to the plaintiff and from and to his ancestors in title, cannot be set up by way of estoppel against the defendants, where they were strangers to all of said deeds and were not privies to any of the parties thereto.</p> <p>(4) Easements.</p> <p>Where one enters into possession of land under license from the owner, the law presumes that the occupation having been at first not adverse that it continues to be of the same nature in the absence of some conduct indicating a change.</p> <p> (5) Easements. Evidence. </p> <p>Evidence to establish an easement must be clear. If the proof is left in doubt the party asserting the easement must fail.</p> <p>(6) Exceptions. New Trial.</p> <p>An exception to a denial of a motion to direct a verdict is rendered untenable by the subsequent granting of a motion for a new trial'in favor of the excepting party, upon the ground that the verdict was against the evidence.</p>

<p>(1) Probate Law. Services Rendered Deceased.</p> <p>In an action by a member of testatrix’s household (a daughter-in-law) to recover for nursing and attendance, rendered testatrix:</p> <p>Held, that the jury were justified in finding on the evidence that there was a reasonable and proper expectation on the part of both plaintiff and testatrix that plaintiff would be compensated.</p> <p>(8) ' Probate Law. Value of Services Rendered Deceased.</p> <p>In an action to recover for nursing and attendance rendered testatrix, on the question of the value of plaintiff’s services, as testified to by plaintiff, considering the knowledge plaintiff must have acquired from her position in the household as to the value of such services, which were described in detail, and her testimony as to the amount of wages paid to others performing somewhat similar services in the household, there was sufficient testimony to guide the jury in arriving at the fair value of plaintiff’s services.</p>

<p> (1) Interpleader. </p> <p>Interpleader will not lie where the demand of one claimant if valid, is against the other claimant personally, and not upon the fund in dispute.</p>

<p>(1) Contracts. Evidence. Fraud.</p> <p>As between parties to a written contract, where one party is induced by the false statement of the other, to sign the same,, he is not bound thereby and may defend against the contract on the ground of fraud even though he was negligent in signing the contract without reading it.</p> <p>(¡2) Contracts. Parol Evidence Buie. Interpretation.</p> <p>The parol evidence rule does not preclude the admission of extrinsic evidence for the, purpose of aiding in the interpretation or construction of a written instrument where the language of the instrument itself taken alone is such that it does not clearly express the intention of the parties or the subject of the agreement.</p>

<p>(1) Garnishment. Claimant to Fund. Appeal.</p> <p>The jurisdiction of the Superior Court where a claimant to a fund attached by trustee process is made a party to the suit in respect to the title to the fund, is solely to charge or discharge the garnishee, and any party aggrieved by the determination of the court may after final judgment bring such determination up for review by bill of exceptions and proceedings by which the garnishee is ordered to turn over the fund to the claimant, and appeals following the course of equity from such so-called decree, are all wholly unwarranted.</p> <p> {%) Garnishment. Claimant to Fund. </p> <p>In attachment of the personal estate of a defendant, in an action at law, when a claimant to the fund’ attached is made a party in respect to the title to the personal estate and establishes its claim to the fund, the extent of the jurisdiction of the court is to find accordingly and discharge the garnishee and the court has no authority to order the payment of the fund by the garnishee to the claimant.</p> <p> (8) Garnishment. Claimant to Fund. Res Adjudicata. </p> <p>Where a claimant to the fund attached by trustee process is made a party to the action in respect to the title to the fund attached in the hands of a garnishee, who has made a return, the determination of the court upon that special issue becomes res adjudicata to such claimant as well as to the other parties in the suit, but although the determination of the court be in favor of the claimant, nevertheless he cannot have a judgment in his own name against the garnishee but must enforce his claim against the garnishee in some other proceeding.</p>

<p>Bill in Equity to establish trust.</p>

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

<p> (1) Contracts. Adding to Agreement. </p> <p>Where parties have reduced to writing the terms of an agreement the law does not permit a party to add to the contract a new provision which requires the performance of additional duties. This rule is more than a rule of evidence — it is one of substantive law.</p> <p>{#) Contracts.</p> <p>Where plaintiff was to install a heating system with the exception of the boiler, which was to be installed and located by the defendant, through another contractor, the fact that plaintiff gave gratuitous advice to defendant as to the depth of the boiler pit, a subject on which defendant with little effort could have informed himself, would not warrant the inference that plaintiff assumed any responsibility concerning the depth of the pit, which was entirely outside the scope of any contractual obligations of plaintiff.</p>

<p>Trespass on the Case under Gen. Laws, 1909, cap. 214.</p>

<p>Bill in Equity for partition.</p>