Volume 44 — Rhode Island Reports

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

<p> (1) Breach of Promise of Marriage. </p> <p>In an action to recover for breach of promise of marriage while the main question is how much damage plaintiff has suffered, the amount of damage is dependent to some extent upon the amount of property defendant had, and in addition to the loss of benefits which plaintiff would have enjoyed as the wife of defendant, she is entitled to recover her financial loss and any humiliation and any impairment of health due to defendant’s refusal to keep his promise to marry.</p>

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

<p>Petition eor Divorce. Heard on exceptions of respondent and sustained.</p>

<p>(1) Requests to Charge. Trial.</p> <p>The multiplication, without necessity of requests to charge is a hindrance to the orderly procedure of a trial and tends to create confusion and to obscure the real issues in a case.</p> <p> ($) Public Highway. Duty of Town to Repair. </p> <p>To show the establishment of a public highway under the common law, the following facts must be proved: (a) the right of the public to use the highway, established by immemorial or long continued public use; (b) the liability of the town to repair the highway, which is created only by some act of acquiescence or adoption by the town, as by assumption by the town of the duty to repair the way and the actual repairing of the same from time immemorial.</p> <p> (3) Public Highways. Repairs. Municipal Corporations. </p> <p>The significance of such repairs as were made by a town to a small country highway should be judgedwith reference to the nature and extent of repairs customarily made by the town on other similar highways at different times.</p> <p> (4) Municipal Corporations. Repairs to Public Highways. </p> <p>Of necessity in many cases adequate proof of immemorial repair can only be made by proof of a number of different and separate acts by the town.</p> <p> {6) Municipal Corporations. Public Highways. Constructive Notice of Defects. </p> <p>A town is held liable for injury to one traveling upon a public highway if it had reasonable notice of the defect, or might have had notice by the exercise of proper care and diligence on its part.</p> <p> (6) Public Highways. Municipal Corporations. Maintenance of Traveled Ways. </p> <p>Charge that a town was not required to work a road to its full width, but was only required to keep it safe for travelers for a suitable width and that having taken a view of the way it was for the jury to decide whether the way had been properly maintained for a sufficient width, was correct. '</p> <p>(7) Trial. Special findings.</p> <p>It is not the right of a party to have a special finding on every issue in a case, and it was not error for the court to refuse to submit special findings, where the decision of such proposed issues would not be decisive of plaintiff’s right nor necessarily affect the general verdict.</p>

<p>'(1) Liability Insurance. Actions. Constitutional Law.</p> <p>Pub. Laws, 1915, cap. 1268, § 9, providing that “every policy hereafter written insuring against liability for personal injuries — shall contain provisions to the effect that the insurer shall be directly liable to the injured party ... to pay him the amount of damages for which such insured is hable. Such injured party ... in his suit against the insured may join the insurer as a defendant, in which case judgment shall bind either or both the insured and the insurer; or said injured party . . . after having obtained judgment against the insured alone, may proceed on said judgment in a separate action against said insurer: Provided, however, that payment in whole or in part of such liability by either the insured or the insurer shall to the extent thereof, be a bar to recovery against the other, of the amount so paid,” is not obnoxious to Cons. R. I., Art. I, sec. 15. “The right of trial by jury shall remain inviolate,” nor to Cons. U. S. Art. XIV of Amendments, Sec. 1, “nor shall any state deprive any person of life, liberty or property without due process of law,” nor to Cons. R. I., Art. I, Sec. 10, in that its enforcement will deprive the defendant of its property otherwise than by the law of the land.</p>

<p> (1) Automobile. Liability of Bailor to Third Person. </p> <p>One keeping automobiles for public hire, who lets an automobile to a person to run, which he knew or by the exercise of reasonable care should have known was in an unsafe condition on account of loose bolts, thereby rendering the automobile ungovernable while being driven on the highway is responsible for damage caused to a third person on the highway by the automobile, subject to the rules relating to proximate cause and contributory negligence.</p>

<p>C1) Constitutional Law.</p> <p>Pub. Laws, cap. 1278, “An act to furnish the City of Providence with a Supply of Pure Water.” is not obnoxious to Cons. U. S. Articles V and XIV of amendments.</p> <p>(2) Constitutional Law.</p> <p>The first ten amendments to the federal constitution are restrictions on the powers of the federal government and not upon the powers' of the' State governments. ,</p>

<p> {!) Condemnation Proceedings. Evidence. Use and Occupation. </p> <p>Under Pub. Laws, cap. 1278, “An act to furnish the City of Providence with a supply of pure water,” upon petition for assessment of petitioner’s damages caused by the taking of his property in condemnation proceedings, as petitioner is entitled to compensation as of the date the city acquired title and was empowered to take possession, he should receive interest upon the amount of such compensation, until it is paid, not as a part of his damages but to indemnify him for the detention of the money after it became due but evidence in regard to the right of the city to demand payment for the use and occupation of the property by petitioner after the taking of title by the city is inadmissible as outside the only issue involved in the proceedings.</p>

<p>(1) Usury: Equity.</p> <p>Notwithstanding the drastic provisions of the statute in regard to usury, cap. 434, Pub. Laws, 1909, as amended by Pub. Laws cap. 838,1912, the borrower under a usurious contract before he can be given the relief of cancellation of the contract, must perform the moral obligation resting upon him and pay or offer to pay the principal of the loan with legal interest.</p> <p> (B) Equity. Usury. </p> <p>Equity will enforce the usury law against the lender, and also for the protection of the borrower, in so far as such enforcement does not lead it to disregard those equitable principles, which as a court of conscience it must enjoin upon all suitors before it.</p> <p>(S) Usury. Equity.</p> <p>Although in law a mortgage executed by the borrower is of no effect as security for the usurious contract, in a suit by the borrower, equity will.treat the mortgage as a valid security for the amount which it regards as justly due from the borrower to the lender.</p> <p> (4) Usury. Rate of Interest. Equity. </p> <p>Where it appears that a lender has violated the usury statute which fixes 30% as the highest rate that may be charged for interest on sums over $50, no consideration of conscience would require a court óf equity to hold that the borrower seeking relief, ought to pay more upon the loan than six per cent, the rate fixed by law in the absence of express stipulation.</p> <p>C5) Usury. Equity.</p> <p>Where it appeared upon bill in equity' seeking relief from a usurious contract, that complainant had made payments largely in excess of legal interest upon the loan, the court should direct such application of the excess to be made as appears most beneficial to complainant. It was error to dismiss the bill on demurrer on the ground that it neither showed payment or made tender of payment, but the bill should have been held for hearing on its prayer to restrain a threatened sale, and if upon hearing the allegations of usury were sustained the court should direct the application of the payments in excess of legal interest, as should be for the protection of complainant, and give such conditional relief as might be required under the rules of equity in the circumstances of the case.</p>

<p>Petitions to establish truth of exceptions. The facts are fully set forth in the opinion.</p>

<p>Assumpsit. Heard on exceptions of both parties. Exception of plaintiff overruled. Exception of defendant to denial of her motion for new trial sustained.</p>

<p> (1) Automobiles. Licenses. Trial. </p> <p>As the> hearing before the State Board of Public Roads on the revocation of an automobile license, is a judicial hearing, the decision of the Board must be based upon legal evidence of sufficient weight to support the specific charges made.</p> <p>(¡8) Automobiles. Licenses. Revocation. Charges.</p> <p>Under the provisions of The Motor Vehicle Act (cap. 1354, Pub. Laws) authorizing the State Board of Public Roads to revoke an automobile license “for any cause it may deem sufficient,” the Board has power to act only on the charges made.</p> <p> (3) Automobiles. Licenses. Revocation. </p> <p>Action of the State Board of Public Roads in revoking 'license on the ground that licensee was an unfit and improper person to be licensed, having after hearing found him guilty of a single offence of receiving stolen goods, reviewed and held that the evidence was not sufficient to support the finding.</p> <p> (4) Automobiles. Licenses. Revocation. Proof. Trial. </p> <p>The hearing by the State Board of Public Roads on the revocation of an automobile license, is civil in its nature even though the charge against licensee is the commission of a crime, and the offence may be established by the preponderance of the evidence.</p> <p> (5) Automobiles. Licenses. Trial. Proof. </p> <p>On an appeal from aetidn of State Board of Public Roads in revoking an automobile license, where the record shows improper and prejudicial testimony, it must clearly appear that after excluding such testimony there was sufficient legal testimony to satisfy the requirement of proof by a fair preponderance of testimony.</p> <p> (6) Automobiles. Licenses. Revocation. Grounds. </p> <p>The power of the State Board of Public Roads to revoke a license is not restricted to cases where the right of the public to use the highway in-safety is involved, but where the holder of a license is charged with an offence of such a nature or committed in such a manner as to show deliberate disregard of the criminal law, although the crime is not directly connected with the operation of an automobile it may properly be held that the wrongdoer is not entitled to hold a license.</p> <p>(7) Automobiles. Licenses. Revocation. Grounds. •</p> <p>Sejrible; that the State Board of Public Roads is warranted in revoking or refusing a license whenever in good faith and in the exercise of a reasonable discretion they find that the probable use of the automobile by the licensee would be a detriment to the public safety, welfare or morals.</p>

<p> (1) Writs. Ne Exeat. </p> <p>Under a writ of ne exeat, commanding the sheriff to cause the respondent to give bail or security, the sheriff was authorized to take a cash deposit in the amount named in the writ.</p> <p>0?) Divorce. Allowance. Registry of Court. Sheriffs. Appeal.</p> <p>Where a respondent who had given security to the sheriff in the sum of five hundred dollars under a writ of ne exeat, was ordered in separation proceedings to pay an allowance to the petitioner and a further sum for counsel fees, and execution was issued against him and returned unsatisfied, and an order was entered directing the sheriff to pay into the registry of the court the amount of the security held by him less an allowance for his counsel fees and permitting the petitioner to withdraw the amount due her for support, etc., and the sheriff appealed;</p> <p>Held, that while it was competent for the Superior Court to order the payment of the money into its registry, an appeal was statutory and there was no provision of statute for an appeal in such a case and the appeal would be dismissed.</p> <p>Held, further, that a sheriff as an officer of the court was subject to its orders and had his remedy in a proper proceeding to test the validity of an order made upon him.</p>

<p>{1) Street Railways. Automobiles. Passengers.</p> <p>A passenger in an automobile, who was not on the lookout for trolley cars, and first saw the car which collided with the automobile, when it was about thirty-five feet away, after the automobile turned into an intersecting street, cannot be held negligent as a matter of law, where there was nothing unusual in the conditions at the junction of the streets.</p> <p> (2) Street Railways. Automobiles. Negligence of Driver. Passengers. </p> <p>Negligence on the part of the driver of an automobile is not to be imputed to a guest and generally the question of the contributory negligence of such guest is a question for the jury.</p> <p> (3) Street Railways. Automobiles. Passengers. Duty to Look. </p> <p>The duty of a passenger in an automobile to look is dependent on the circumstances, and in the absence of knowledge of danger, or of facts which should give him such knowledge, he may properly rely upon the driver. The passenger is not however relieved of all care but the amount of care required, varies with the circumstances.</p> <p> (4) Street Railways. Negligence. Rate of Speed Fixed by Ordinance. </p> <p>That the rate of speed of a trolley car did not exceed that allowed by ordinance is not conclusive proof of the exercise of due care by th§ defendant, but is simply evidence bearing upon the question of defendant’s care and is to be considered by the jury in connection with the attending circumstances in the decision of this issue.</p>

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

<p>(1) Public Utilities Commission. Gas.</p> <p>Gen. Laws, cap. 345, sec. 53, providing a penalty for wilfully furnishing a meter which does not correctly register the quantity of gas consumed or for collecting a larger sum for gas than appears to be due upon inspection of the meter, does not penalize the collection of a service charge.</p> <p> (8) Public Utilities Commission. Gas. Service Charge. </p> <p>Upon appeal from an order of the Public Utilities Commission, finding service charge, for use of a gas meter, reasonable, evidence considered and held that such charge was legal, and as it applies to all consumers alike, it cannot be held to be unjustly discriminatory.</p> <p> (3) Public Utilities Commission. Gas. Reduction in Standard. </p> <p>Upon appeal from an order of the Public Utilities Commission finding that a reduction in standard of gas under the conditions existing was necessary evidence considered and appeal dismissed.</p>

<p>(1) Taxation. Sale.</p> <p>Although the tax had been properly assessed against each of several parcels of real estate, separately, all of the lots were sold by the collector of taxes as one lot for the total amount of taxes due on the different parcels.</p> <p>Held, the sale was illegal and passed no title, for the result of such action was to deprive the owner of his statutory right to redeem a particular part of his land if he so desired.</p>

<p>(1) Landlord and Tenant. Tenant Holding Over. Trespasser. Election of Remedies. Assumpsit.</p> <p>Where a monthly tenant after notice to quit holds over it is optional with lessor to treat him as a trespasser or tenant from month to month, an election to treat him as tenant being inferable from any unreasonable delay to proceed against him as a trespasser, as well as from wqrds or acts directly recognizing him as tenant.</p> <p> (2) -Landlord and Tenant. Election of Remedies. </p> <p>Where lessor elects to sue lessee in assumpsit for use and occupation of premises after the end of the term, he waives his right to afterwards take the inconsistent position of treating lessee as a trespasser during the same period and to sue in trespass.</p> <p> (3) Election of Remedies. </p> <p>Where the tort is of such a character as to afford plaintiff the right to sue in assumpsit as well as in tort, the adoption of one remedy is a conclusive bar to a resort to the other.</p> <p> (4) Election of Remedies. Discontinuance. </p> <p>Where plaintiff has his election between co-existing remedial rights, in assumpsit and tort, which are inconsistent, and has brought action, in assumpsit, and while this action is pending brings suit in trespass, he cannot discontinue the first action and proceed with the other.</p>

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

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

<p>(1) Equity. Actual Fraud.</p> <p>When a bill in equity charges actual fraud, no matter what other allegations it may contain, the complainant stands or falls on that charge alone, as no other issue is before the court.</p>

<p>Assumpsit. Heard on exception of defendant and sustained.</p>

<p> (1) Guardian and Ward. Counsel Fees. Resignation of Guardian. </p> <p>There is no authority under Gen. Laws, cap. 321, § 12, for the allowance of counsel fees, to be paid by a guardian of a person of full age, out of the estate of the ward, for services in connection with a petition for leave to resign as guardian.</p> <p> (2) Guardian and Ward. Counsel Fees. Release from Guardianship. </p> <p>There is no authority for the allowance of counsel fees and expenses of experts . under Gen. Laws, cap. 321, § 12, to be paid by a guardian of a person of full age, out of the estate of the ward, on a petition of the ward for release from guardianship.</p> <p>(S) Guardian and Ward. Appointment of New Guardian. Counsel Fees. Where the original guardian resigned and a petition was filed for the appointment of a new guardian, counsel fees for services rendered the ward in defending against the new appointment are within the provisions of Gen. Laws, cap. 321, § 12, it appearing that the ward was possessed of some mental capacity, and was entitled to have his wishes and interests considered in the appointment.</p>

<p>Trespass on the Case for negligence. Heard on excep■ceptions of defendants and sustained.</p>

<p>(1) Workmen’s Compensation Act. Parties. Commutation.</p> <p>On petition of a widow for commutation of weekly payments under the. Workmen’s Compensation Act, the minor children of deceased must be joined as parties.</p> <p>(S) Workmen’s Compensation Act. Commutation. Appeal.</p> <p>Where the record shows no evidence on a ground alleged for commutation of weekly payments under the Workmen’s Compensation Act, such claim will not be considered on appeal.</p>

<p>.Habeas Corpus. Heard on petition for writ and denied.</p>

<p>(1) Automobiles. Negligence.</p> <p>The driver of an automobile attempting to pass another car in front of him is bound to exercise a high degree of care and to see that the situation is such that he can safely do so. He should observe not only the space which he is intending to travferse but also the opportunities which an approaching car would have to pass him safely. If the conditions of the roadway are such as would limit the movement of the approaching car they should be observed by him, and under s.uch conditions if he could not pass or continue on with safety it is incumbent upon him to either stop or drop back.</p>

<p>Probate Appeal. Heard on exceptions of appellants and overruled.</p>

<p>Trespass on the Case for malicious prosecution. Heard on exceptions of plaintiff and overruled.</p>

<p>Petition for construction of will.</p>

<p>Trespass on the Case for personal injury. Heard on exceptions of defendant and sustained.</p>

<p>Under the provisions of Gen. Laws, 1909, cap. 317, § 1, giving to town councils the right to direct the town treasurer to take possession of any real or personal estate upon the death of any person who shall leave no heirs or legal representatives to claim the same, a town council passed a vote directing the town treasurer to take such possession. This was not immediately done with the exception of some real estate and thereafter upon petition of a creditor an administrator was appointed who settled the estate and. by direction of the probate court turned over the balance of the estate to the town treasurer. The appellants filed their petition in the probate court, praying that the estate be turned over to them as entitled thereto which petition was dismissed.</p> <p>Held, that the failure of the town council to take immediate possession of the-personal estate did not debar it from the exercise of that right whenever in its judgment it became desirable to do so, and that having accomplished the final settlement of the estate, and decreed that the balance be tjirned over to the town the probate court had no further jurisdiction in the matter.</p>

<p>Trespass on the Case for negligence. Heard on exceptions of defendant and sustained.</p>

<p> (1) Malicious Prosecution. Discontinuance of Criminal Complaint. </p> <p>Plaintiff is not barred from maintaining an action for malicious prosecution by the fact that he consented to the discontinuance of the criminal complaint against him, where, after notice to his attorney that the prosecutor considered plaintiff innocent of the charge against him, the attorney asked the prosecutor if he would have the case dismissed, and it was discontinued. Distinguishing Russell v. Morgan, 24 R. I. 134.</p> <p>(í¡) False Imprisonment. Malicious Prosecution.</p> <p>An action will not lie against a defendant either for false imprisonment or for malicious prosecution where he simply made complaint of the commission of a crime and the proceedings against plaintiff were begun by the sheriff acting on his own judgment.</p> <p>(3) Malicious Prosecution. False Imprisonment.</p> <p>Inaccuracy in a criminal complaint in the allegation of the person defrauded is immaterial in proceedings brought by the defendant in such criminal complaint charging falste imprisonment and malicious prosecution as the real question is not who was defrauded but who committed the fraud.</p> <p>(4) Criminal Complaint. Time. False Imprisonment. Malicious Prosecution.</p> <p>In a criminal complaint the allegation of the date of the commission of the-crime is formal and the prosecution is not bound thereby and an error in this regard is not material in an action by the defendant in the criminal complaint charging false imprisonment and malicious prosecution.</p> <p> (5) False Imprisonment. </p> <p>An action for false imprisonment will not he when the arrest, is made under process valid on its face and issued by a court of competent jurisdiction, even if the investigation by the officer was insufficient, as negligence of the officer does not invalidate the process, the gist of the action being the unlawful detention of another without his consent, and malice not being an essential element of this form of action.</p> <p> (6) Malicious Prosecution.' Probable Cause. Question of Law. </p> <p>Where the facts are not in dispute, the question of probable cause is one of law.</p> <p>(7) Malcious Prosecution. Probable Came.</p> <p>Where an officer after an investigation as to guilt of the accused, had reasonable grounds to believe him probably guilty, an action for malicious prosecution will not lie.</p> <p>(5) Malicious Prosecution. Probable Cause.</p> <p>An honest and reasonable belief as to guilt of accused is a valid defence to an action for malicious prosecution.</p> <p> (9) Malicious Prosecution. Probable Came. </p> <p>Where an officer stated the case fairly to his counsel and acted in good faith on the advice of counsel, he is not hable for malicious prosecution.</p>

<p>Divorce. Heard on exception of respondent and sustained.</p>

<p>(1) Landlord and Tenant. Notice to Quit.</p> <p>No particular form of notice is necessary to terminate a tenancy. The notice will be sufficient if it is in writing and informs the tenant that he is required to vacate the premises at the end of his term and is given before the commencement of the latter half of his term. It need not state when the term ends, as a tenant for a term must be presumed to know when his term commences and when it ends. '</p> <p> (2) Landlord and Tenant. Notice to Quit. Time.' </p> <p>The fact that a tenant who was notified to quit “at the end of your occupation month which will occur next after the expiration of fifteen days from the date hereof” was entitled to'sixteen days’ notice is of no importance where as a matter of fact the time given was sufficient, to comply with Gen. Laws, 1909, cap. 334, § 4.</p>

<p>(<1) Direction of Verdict.</p> <p>A verdict should not be directed for the defendant if on any reasonable view of the testimony, the plaintiff can recover, especially where the burden of proof is on the defendant.</p> <p>(£) Evidence.</p> <p>Where it appeared that witness was the purchaser of her husband’s store at a mortgagee’s sale, and a machine, the subject of the action, was neither mortgaged nor included in the sale, question as to the purpose of putting the store in the name of witness, was immaterial and properly excluded.</p> <p>(S) Actions. Charge. Lessor and lessee.</p> <p>Where the plaintiff as lessor of a chattel might properly maintain an action for its conversion, charge that the lessee could also maintain the action was not' prejudicial to the defendant.</p> <p> (4) Trespass. Principal and Agent. </p> <p>A trespasser cannot reheve himself from liability by showing that a third person directed, ordered or authorized him to do the illegal act complained of.</p>

<p>Divorce. Heard on exceptions of respondent and overruled.</p>

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

<p>(1) Contracts. Guaranties.</p> <p>Where one party to a contract waived the furnishing of guaranties of its performance by the other party, the latter cannot as a defence to an action by the former for its breach, set up such waiver by the plaintiff, where the plaintiff accepted the agreement without, guaranties and acted in reliance upon the defendant’s sole undertaking.</p> <p> (2) Evidence. Conversation by Telephone. </p> <p>The action of the court in admitting and rejecting testimony as to telephonic conversations, dependent upon the evidence of the identity of the party at the other end of the wire was proper.</p> <p> (8) Evidence. Reversible Error. </p> <p>The action of the court in excluding evidence should not be regarded as reversible error, where the court permitted such excluded statements appearing in a subsequent portion of the deposition to be presented to the jury.</p> <p> (4) Conspiracy to Create Monoply. Evidence. </p> <p>Where the admitted purpose of defendant was to obtain a monopoly of a commodity with the object of selling it at an artificially advanced and unreasonable price, and the sole controversy between the parties was whether the plaintiff acting through its agent knew of the ulterior purpose of the defendant and illegally combined.with it to carry out such purpose or whether the plaintiff was merely -pursuing its ordinary business as a commission broker , without participation in the design of defendant, evidence offered by defendant as to acts and statements of its agent in corroboration of the admitted designs of the agent and the defendant, but in no way tending to support defendant’s contention of an illegal combination with the plaintiff to further such designs, was irrelevant and inadmissible.</p> <p> (6)Conspiracy to Create Monoply. Evidence. </p> <p>Upon the issue of a conspiracy to create a monopoly, the determination as to the admissibility of evidence as to the acts and declarations of one of the parties rested in the discretion of the court. If there was evidence in the case from which a jury might possibly draw the inference that a conspiracy existed between the parties the court would be obliged to' submit the question to the jury even though such inference would not be drawn by him and although he might feel that a verdict finding a conspiracy would be against the preponderance of the evidence and should be set aside, and in the state of the proof in the case at bar the justice could properly exercise his discretion and exclude evidence as to the acts and declarations of one of the parties although he felt constrained to submit the question of conspiracy to the jury.</p> <p> (6) Evidence. Cross Examination. </p> <p>It' is within the discretion of the court to regulate and restrain cross examination designed to test or discredit the sincerity of a witness.</p> <p>(7) Contracts. Anticipatory Breach. Damages.</p> <p>Plaintiff obligated himself to receive from X. and to pay him for forty flasks of quicksilver per month for six months. Plaintiff assigned the contract to defendant but there was no novation and plaintiff continued bound upon his contract. Defendant was in default and repudiated its obligation under the agreement of assignment. Held, that plaintiff was entitled to treat such renunciation as a breach of the entire agreement and to commence his action before the termination of the period within which the full deliveries were to be made.</p> <p>Held, further, that in measuring the plaintiff’s damages the jury should consider not only his loss upon the amount of the quicksilver which he was obliged to receive before the defendant’s breach of the contract and before the commencement of the action but also his loss in respect to the quicksilver delivered under the contract subsequent to the date of the writ.</p> <p>Held, further, that it appearing that the commodity had no value to the plaintiff for its own use and that to reduce the amount of its loss and to mitigate the damages the plaintiff had with due diligence and after proper notice sold the quicksilver from time to time at auction, evidence as to the amounts received at such sales was admissible to assist in fixing the plaintiff’s damages.</p> <p> (8) Contracts. Principal and Agent. New Trial. </p> <p>The court would not be warranted in setting aside a verdict because of refusal of the trial court to submit to the jury the question whether defendant’s agent against instructions delivered the defendant’s executed agreement to the plaintiff, where the overwhelming preponderance of the' evidence was against the fact that plaintiff had knowledge of the instructions at the time of the delivery to him of the agreement and where at the time of delivery defendant’s agent also furnished plaintiff with a certified copy of a resolution of defendant’s directors authorizing the chairman of the board to sign the contract.</p> <p> (9) Special Findings. </p> <p>Gen. Laws 1909, cap. 291, § 6, relative to the submission of special findings-to the jury, relates to the submission of questions involving some material issue in a case and not to what is merely a controverted point in evidence.</p> <p> (10) Special Findings. </p> <p>The material issue in a case was whether the plaintiff and defendant had combined to obtain a monopoly with the unlawful intent of selling a commodity at an unreasonably high price; requests for special findings as to whether ' defendant’s agent was endeavoring to get control of a sufficient quantity of the commodity to enable him to raise the price and whether plaintiff’s agent was working with the defendant’s agent to this end; were refused-c — The jury were instructed that both parties were bound by the acts purposes intent and knowledge of their agents.</p> <p>Held, that the moving party was not prejudiced for the issue stated was the-particular matter in controversy and was clearly explained in the charge and the question must have been intentionally answered in the general verdict.</p> <p> (11) Trial. Misconduct of Counsel. Exceptions. </p> <p>A bill of exceptions may not include objections to the conduct of counsel in the trial of a case, except where the party has asked the court for appropriate action which has been denied when by exception to such denial of relief he may bring the ruling up for review.</p>

<p>Bills in Equity seeking relief. Heard on appeal from decree of Superior Court and decree reversed, and injunctions granted vacated.</p>

<p>(1) Principal and Agent. Trust Funds.</p> <p>X. sold securities for Y. It was the duty of X to obtain subscriptions and a check payable to Y. for the purchase price. After forwarding 60% of the price to Y., X. received from Y. the certificates which he delivered to customers. Y. was at liberty to reject any subscription. X. was required to indorse cheeks for collection and permitted to retain as commission 40% of the amount received from which 40% he paid all his expenses. X. opened a bank account in the name of “X. Manager” and no other money than checks received in payment of Y’s stock went into the account. X. made weekly reports to Y. showing the amount of the subscriptions and amount remitted and accompanied by check drawn against the account for 60%, and a receipt from X. showing the receipt of his commission.</p> <p>Held, that there was no intention to create the relation of debtor and creditor between the parties and the fund was the property of Y.</p> <p> (2) Trust Funds. Mingling Funds. </p> <p>Where a trustee mingles in a bank account his own money with trust funds and then makes withdrawals for his own use he will be presumed to have used his own money .to the extent that he had money in the account. If such withdrawals exceed the amount of his own money and he afterwards deposits other money of his own it will be assumed that it was his intention to make the trust fund whole.</p> <p> (3) Foreign Corporations. Appointing Attorney. </p> <p>The long established rule in this state is not changed by Pub. Laws, cap. 1926, sec. 67, and a foreign corporation is entitled to enforce in the courts of this state a contract made by it within this state, although it had not complied with the statute by appointing a resident attorney at the time the contract was made, provided it had appointed such attorney before commencing suit.</p>

Trespass on-the Case for negligence. Heard on exceptions of both parties. Exceptions of plaintiff overruled. Exception of defendant sustained as to amount of verdict.

<p>Trespass on the case for injury to plaintiff’s right of consortium. Heard on exceptions of defendant and sustained.</p>

<p>Trespass on the case for negligence. Heard on exceptions of plaintiffs and overruled.</p>

<p> (1) Jurors. ■New Trial. </p> <p>Where on petition for new trial, on the ground that one of the jurors was not indifferent in the cause and had held a conversation with the husband of the plaintiff during the course of the trial the trial court passed on the question and denied the petition his action will not be disturbed unless it is shown that he abused his discretion.</p> <p> {%) Evidence. Rumor. </p> <p>The admission of testimony as to a rumor around a neighborhood in regard to certain facts and that it was rumored that the gossip had its origin with defendant, constituted reversible error.</p> <p>(3) Evidence. Remoteness.</p> <p>Evidence in an action for slander that defendant had at some time between six and ten years before the time alleged in the declaration made certain statements was too remote to be admissible, where it did not appear that defendant had thereafter habitually made similar statements up to within a reasonable time before the date alleged in the declaration.</p>

Petition for Divorce. Heard on motion of petitioner for additional counsel fees and denied without prejudice to renewal in Superior Court.

<p>Debt ojsr Bond. Heard on exceptions of plaintiff’s to action of Superior Court sustaining demurrers to declarations and exceptions overruled.</p>

<p>Trespass and Ejectment. Heard on exception of plaintiff and sustained.</p>

<p> (1) Contracts. Warranties. Notice of Defects. </p> <p>In an action of assumpsit to recover the price for goods sold and delivered, the burden was on defendant to establish a breach of warranty and where aside from the question as to defective goods the jury were permitted to pass on the question as to whether defendant within a reasonable time notified plaintiff of the alleged defects and there was evidence on both points in favor of plaintiff the verdict approved by the trial court will not be disturbed.</p> <p> (2) Contracts. Credits. </p> <p>Where the contract between the manufacturer and jobber required the jobber on adjusting a claim with a-customer to make a detailed record of the facts and send a copy to the home office not later than the following day and ship to the home office once in ten days the used product on hand received in making the adjustments and the jobber sent no reports and did not ship the used goods and made no claim for credits until after action brought by manufacturer his claim for credits was properly disallowed.</p> <p> (8) Contracts. Credits. </p> <p>Where the contract between a manufacturer and jobber provided that jobber 'should advertise the goods and would be given a. certain credit, “all such advertising to be submitted and approved by the manufacturer” and no advertising was submitted by jobber for approval, he was not entitled to credit for the money paid for advertising.</p> <p> (4) Contracts. Foreign Corporations. Resident Attorney. </p> <p>Where a foreign corporation through its agent took an order in this state, executed by defendant in this state and by the foreign corporation outside the state, the contract was made outside the state and was not within the provisions of Gen. Laws, cap. 300, § 42, relative to the appointment of a resident attorney.</p> <p> (5) Pleading. Foreign Corporations. Resident Attorney. </p> <p>Want of capacity to sue should be set up by a plea in abatement and is waived by pleading to the merits.</p>

<p>Bill in Equity to remove cloud on title. Heard on appeal of respondents and decree of Superior Court with a certain modification, affirmed.</p>

<p> (1) Landlord and Tenant. Renewal of Lease. Extension of Lease. Election to Renew. </p> <p>A lease provided that lessee should have an option for a renewal for a further term and that if lessee “should ask for a renewal at the termination of five years from the date hereof, the conditions governing the extended period shall be the same with the exception” of the rent, and also provided that upon failure of lessee to pay any installment of rent within five days after the first of the month lessor should be at liberty to take immediate possession of the premises. Lessee two days after the original termination of the lease stated orally to lessor that he wished to renew the lease for the further period:—</p> <p>Held, that the only act that lessee was required to do was an election to continue the tenancy which he was not called upon to make prior to the termination of the lease, and a fair construction of the lease gave lessee a reasonable time after the termination of the lease to make such election, and the election within two days was within a reasonable time.</p> <p>Held, further, that the election was not required to be in writing.</p> <p>Held, further, that the agreement was one for the extension of the original lease rather than for a renewal of a lease to be evidenced by a new lease, although the option was expressed to be a renewal.</p> <p>(¡8) Landlord and Tenant. Extension of Lease.</p> <p>Where a lease provided for its extension at option of lessee, the tenant having made his election holds the premises for the full term under the original lease.</p>

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

<p>Bill in Equity. Heard on appeal of complainant from decree of Superior Court denying motion to vacate final decree and appeal dismissed.</p>

<p>(1) Constitutional Law. Amendments.</p> <p>In proposing and approving articles of amendment to the constitution the general assembly is presumed to have had in mind certain rules of interpretation which in this State had been long established by judicial decisions when the article was proposed and submitted to the people, and the article should be construed in accordance with such rules.</p> <p> (3) Time. Sundays. </p> <p>The established rule in this State in computing a period of time within which an act is to be done, is that unless a different intention is expressly or clearly indicated Sundays are counted, except when the last day falls on Sunday.</p> <p> (3) Time. Interpretation of Constitution. </p> <p>In interpreting a provision of the constitution, no meaning other than the natural and ordinary meaning of the language used can be given it, unless such construction would lead to an unjust or otherwise unreasonable result manifestly not intended.</p> <p> (4) Constitutional Law. Time. Sundays. </p> <p>Art. XV, Amend! Const. R. I. in part provides: “If the measure shall not be returned by the governor within six days (Sundays excepted) after it shall ' have been presented to him, the same shall become operative unless the general assembly, by adjournment, prevents its return, in which case it shall become operative unless transmitted by the governor to the Secretary of State, with his disapproval in writing, within ten days after such adjournment.”—</p> <p>Held, that in computing the period allowed the governor to return a measure with his disapproval thereof, Sundays should be included except a Sunday which happened to be the tenth day.</p> <p> (6) Time. Sundays. </p> <p>When the first day of a period is Sunday, that day should be included in the computation of time within which an act is to be done.</p>

<p> (1) Divorce. Discontinuance of Petition. Allowance to Wife. Counsel Fees. </p> <p>When a wife who is a respondent in a divorce proceeding files an application for an allowance to enable her to defend against the husband’s petition or for her support pendente lite, the right accrues to her under the statute to have a determination upon her application and the husband will not be permitted to defeat that right by a discontinuance. If a notice of discontinuance is filed after the wife’s application for an allowance has been heard and determined in her favor but before á decree has been entered the court should enter a decree as of the date of its determination for such amount as it shall deem proper in the circumstances and the petition should not be discontinued until the rights of the wife are protected.</p> <p>(3) Divorce. Allowance to Wife. Counsel Fees.</p> <p>It would seem that under the statutory provision for an allowance to the wife in the divorce proceeding to enable her to defend against a petition that counsel fees in connection with the filing and prosecution of the wife’s petition for an allowance might be allowed.</p> <p>(3) Prohibition. When Writ Issues.</p> <p>The court will not by the extraordinary and discretionary writ of prohibition restrain a justice of a lower court from the determination of a matter within his general jurisdiction because the petitioner fears that the action of such court may be adverse to him or erroneous, and even where the jurisdiction of the inferior tribunal is questionable or plainly lacking the court will assume that such tribunal will pass correctly upon the question of its own jurisdiction, but the court will leave the parties to their ordinary methods of review, unless it appears upon the face of the record that the inferior tribunal is without jurisdiction and that if it should assume jurisdiction a decision therein might work irreparable injury.</p>

<p>Question stated for opinion of the court under Gen. Laws cap. 289 § 20.</p>

<p>Trespass on the Case for negligence. Heard on exception of plaintiff and overruled.</p>

<p>(1) Bills of Exception. Direction of Verdict.</p> <p>When a party has excepted to the denial of his motion for the direction of a verdict and after verdict against him the court has granted his motion for new trial, the appellate court will not consider his exception to the refusal of the lower court to direct a verdict in his favor. This settled rule of practice however is applicable only in cases presenting similar circumstances to the ruling case. Following Barstow v. Turner, 29 R. I. 100, and Malafronte v. Milone, 33 R. I. 460.</p>

<p>(1) Divorce. Vacating Final Decree.</p> <p>A petition to vacate a final decree in divorce is an independent petition and in effect is a new and original proceeding. Objection to the action of the Superior Court thereon is properly raised by a bill of exceptions.</p> <p> (2) Divorce. Vacating Final Decree. </p> <p>Where a respondent has been guilty of fraud on the court and on the petitioner in having a final decree entered in divorce, and petitioner has taken prompt action to have it set aside and the rights of innocent third parties are not concerned, the right of the Superior Court to vacate the decree is clear.</p> <p> (3) Divorce. Final Decree. </p> <p>The resumption of marital relations by the parties after a decision in a divorce petition and before entry of final decree, is a condonation of the offence of the husband and the court could not enter final decree thereafter even by consent of the parties.</p>

<p> (1) Hearsay Evidence. Secondary Evidence. </p> <p>Where the records of the State Board of Public Roads relative to registration of automobiles had been destroyed, it was error to permit witness to testify that he found out by conversation with a clerk of the Board that an automobile was registered in the name of deceased and that the license expired at a certain time.</p> <p> (2) Gifts. Bills of Sale. </p> <p>Where a chattel was purchased in the first instance by a husband as a gift for his wife, no bill of sale or special act of delivery was necessary to give title to the donee.</p>

<p>(1) Libel. Question for Jury.</p> <p>In an action for libel it was error to leave to the jury to decide whether a circular was libelous under instructions that the meaning of the word “ steal ” in the circular was to be determined by a consideration of the whole document, from which it was'for the jury to say whether or not it was a malicious attempt to charge a crime or whether it was simply the use of exuberant language to express a very volcanic state of feeling..</p> <p> (2) Libel. </p> <p>An accusation is libelous per se, which falsely charges an offence which although not a crime at common law, if proved may subject the party accused to a punishment not ignominious but bringing disgrace.</p> <p> (3) Libel. Charge of Larceny. Compensatory Damages. </p> <p>Accusing one of stealing is charging the crime of larceny or embezzlement which is libelous per se, and there is no occasion to allege or prove special damages "but accused is entitled on proof of defendant’s responsibility, to recover compensatory damages.</p> <p> (4) Libel. Punitive Damages. </p> <p>The award of punitive damages in libel and slander is .discretionary with the jury, where allowable, and they are properly allowed when actual malice is shown or a recklessness equivalent to actual malice.</p> <p> (5) Libel. Publication. </p> <p>A defendant is liable for publication of a libel even if he gave out but one copy of a circular of which a large number were printed.</p> <p>(i6) Libel. Liability for Error.</p> <p>Where a circular made a grave charge against plaintiff by name, defendant cannot escape liability on the ground that the naming of plaintiff was a mistake and another person was intended, for where the words were clear there was no need to refer to extrinsic evidence to determine to whom the writing was intended to apply and the mistake could easily have been discovered by defendant by reading the circular.</p> <p>(7) Libel. Intent. Damages.</p> <p>A defendant in libel is bound by the natural and ordinary consequences of his acts and his intent is no defence but is properly to be considered only in the assessment of damages.</p>

<p>Action oe Debt. Heard on exception of plaintiff and overruled.</p>

<p>Action under the Statute for death by wrongful act. Heard on exceptions of defendants and sustained, on exception to refusal to grant a new trial.</p>

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

<p>Mandamus. Heard on petition for writ and denied.</p>

<p>Divorce. Heard on exceptions of petitioner and overruled.</p>

<p>(1) Wills. Trusts. Time of Dividing Trust Estate.</p> <p>Testamentary provision “when the youngest child of my youngest son shall have reached the age of 21 years, then my said trustees are to divide, distribute and convey as in their judgment they shall deem best all said business capital . . . equally to said male children and daughters born subsequent to the date of this will, the children of any deceased child talcing his proportionate share of his fathers and mothers realty and personalty.”</p> <p>Held, that the time for division and distribution of the trust estate was postponed until it was no longer possible for the youngest son of the testator to have children and his then youngest child reached the age of 21 years.</p>

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

<p>Bill in Equity. Heard oil appeal of complainant and sustained.</p>

<p> {1) Negligence. Carriers. Last Clear Chance. </p> <p>Where the evidence was conflicting on the question whether plaintiff suddenly turned his car in front of the electric car when the latter was so near that it was impossible to stop the electric car in time to avoid the accident or whether plaintiff was driving between the tracks, and vainly endeavoring to drive off the tracks when the electric car was a sufficient distance away to enable the motorman after he should have observed plaintiff’s predicament to stop his car, it was a question for the jury whether the motorman had the last clear chance to avoid the accident.</p> <p>(g) Negligence. Carriers. Last Clear Chance.</p> <p>Charge in a personal injury case arising out of a collision between the plaintiff’s car and an electric car that even if plaintiff were negligent, “if you find that the motorman by the exercise of reasonable diligence after he observed the dangerous position (of plaintiff) could have stopped his car and avoided the collision, then'you would be justified in holding the company liable” was proper, the court having previously instructed the jury that the motorman had the right to assume that if a man is running along on the track he will turn off under ordinary circumstances, and it would only be in the event that the motorman discovered that the driver had caught his wheel and was trying to get out and the motorman made that discovery in time so he could have stopped his car and avoided the accident that there would have been any duty on his part to stop his car.</p>

Probate Appeal and also a special case stated for the opinion of the court. Exception of appellants in first case overruled.

<p>(1) Negligence. Registration of Motor Vehicles. Presumption of Ownership.</p> <p>Where a motor vehicle has been registered under Pub. Laws, 1909, cap 454, and a distinguishing number assigned to it, and no notice of the owner’s transfer of interest has been filed with the State Board of Public Roads, in an action brought to recover damages for injuries arising out of a collision between said vehicle and a car of plaintiff, the plaintiff can rely upon the presumption that the requirements of the law have been complied with and that the defendant was the owner of the vehicle at the time of the accident.</p> <p>(g) Negligence. Master and Servant. Presumption of Servant’s Employment. Burden of Proof.</p> <p>Where a plaintiff has proved that a motor vehicle was owned by defendant at the time of an accident, it is a reasonable presumption that it was being used in defendant’s business at-that time. This presumption, however, is rebuttable and may be met and overcome by the evidence of defendant.</p>

<p>Criminal complaint. Heard on exceptions of defendant" and overruled.</p>

<p>Trespass on the Case for negligence. Heard on exceptions of plaintiffs. Exception of Frances Lucey sustained other exceptions overruled.</p>

<p>Bill in Equity on facts set forth in opinion. Heard on appeal of respondent and dismissed.</p>

<p>(1) Construction of Statutes.</p> <p>In the construction of statutes, there is a presumption that they are intended to operate prospectively only and words ought not to have a retrospective operation unless they are so clear, strong and imperative that no other meaning can be annexed to them or unless the intention of the legislature cannot be otherwise satisfied.</p> <p> (2) Tax Act. Construction. Carrying on Business for Profit. </p> <p>“The tax act of 1912” was intended to operate prospectively, and as the corporate excess tax assessed June 1,1912, was for the year 1912, the annual corporate excess tax assessed thereafter was for the year in which the tax was assessed, and consequently the tax assessed June 1, 1920, was for the year 1920, and where a corporation was not carrying on business for profit in this State during the year 1920, it was not hable for the tax assessed against it June 1, 1920.</p>

<p>Statutory Action to recover for death. Heard on exceptions of both parties and all overruled.</p>

<p> (1) Malicious Prosecution. Advice of Attorney. </p> <p>It is a defence to an action for malicious prosecution, if the prosecutor acts upon the advice of a competent disinterested and regularly admitted practicing attorney in good standing that probable cause for commencing prosecution exists, provided the prosecutor honestly believes the accused is guilty and makes a full, fair, frank and free disclosure of all the circumstances to the counsel who advises him.</p> <p> {%) Malicious Prosecution. Advice of Counsel. Question of Fact. </p> <p>"Whether a prosecutor acted upon advice of counsel and whether he made a complete disclosure of all the facts and circumstances are questions of fact for the jury. The mere statement of a prosecutor that he made a full ■ disclosure is not conclusive; what he stated should be proved.</p> <p> ÍS) Malicious Prosecution. Malice. </p> <p>In an action of malicious prosecution, malice may be inferred from lack of probable cause.</p>

<p>(1) Wills. Intestacy.</p> <p>It is reasonable to suppose that a man who makes a will does not intend to die intestate as to any part of his property.</p> <p> (8) Wills. Residuary Provision. Legacies. Abatement. </p> <p>Testator by will in the 5th and 7th clauses bequeathed gifts of $10,000 and $2,000 respectively, and by the 4th and 6th clauses bequeathed gifts of $20,000 and $10,000, respectively, in trust. By the 11th clause he directed his executor to sell all personal property not otherwise disposed of, also all real estate, the proceeds of said personal and real estate to be added to the 4th and 6th bequests, share and share alike, after all expenses of every description had been settled. At the time of his death the personal property of testator was less than $5,000.- — ■</p> <p>Held, that to- carry out the apparent intention of te'stator the 11th clause would be construed to be a general residuary provision, and from the proceeds of the sales of the real and personal property the executor should pay the expenses, debts and legacies provided for by the will, first paying the expenses of administration, the inheritance and legacy taxes, and all lawful claims, and out of the balance the legacies, and if the estate was insufficient to pay the legacies in full they must abate proportionably.</p>

<p>(1) Covenant. General Issue.</p> <p>Where to an action of covenant commenced in a district court the defendant entered his appearance, so far as it can be considered that there was any issue on a claim of jury trial before the superior court, it was solely that which arises on the plea of non est factum, which has sometimes been treated as in the nature of the general issue.</p> <p> (8) Deeds. Evidence. Covenants. </p> <p>A deed speaks for itself in all its covenants and no evidence of prior negotiations or agreements between the parties can be received for the purpose of altering or contradicting its definite covenants.</p>

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

<p>(1) Trial. Report of Trial.</p> <p>The intention of the statutes is that the court stenographer shall be present throughout the whole trial, except perhaps during the argument of counsel, so where a jury came in for further instructions which were given without a stenographer and in the absence of counsel, it constituted reversible error.</p> <p>(f) Trial. Notice to Counsel. '</p> <p>Rule 17 of the rules of practice of the Superior Court provides that before giving further instructions to the jury after they have retired, the trial justice shall cause the attorneys, if absent, to be notified by sending notice to them if within convenient reach provided the attorneys have left word with the justice where such notice is to be sent and provided further that the justice shall not be required to wait more than fifteen minutes after sending such notice.—</p> <p>Held, that under the rule the court discharged its duty if notice is properly sent and is not responsible for its actual receipt.</p> <p> (S) Trial. Notice to Attorneys. </p> <p>Where counsel after the jury had retired, asked the court if he might go to his office and was told his presence in court was not required, and then stated to the court that he would go to his office and the court knew the ■ location of his office and the attorney remained there but was not sent for when the jury returned for further instructions, the fact that he did not give his office address again is not important nor in the circumstances did his failure specifically to ask that he be called deprive him of his right to notice and failure on the part of the court to notify him, was error. Such error is not necessarily reversible if the court has preserved by any method a record of what was .said or done in the absence of counsel.</p>

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

<p>(1) Prohibition.</p> <p>The ordinary office of a writ of prohibition is to restrain an inferior tribunal from acting without jurisdiction or in excess of its jurisdiction. The writ will not be granted where the petitioner has an adequate remedy by review, if such tribunal should so act.</p> <p> (2) Divorce. Prohibition. </p> <p>Where after decision for a petitioner in divorce, and before entry of final decree petitioner filed notice of her discontinuance of the petition which the court refused to permit and respondent moved for entry of final decree which was opposed by petitioner, while the superior court has jurisdiction of the subject matter and of the parties, yet because of the peculiar nature of divorce proceedings, petitioner might be left without adequate relief by the ordinary methods to review any error of the court in entering the decree, and a petition for writ of prohibition is an appropriate medium to bring the threatened action of the court up for review. - *</p> <p>(S) Extraordinary Writs.</p> <p>Ordinarily the supreme court will restrict the use of extraordinary writs to their generally recognized offices but in any situation when no other remedy is provided it will so employ them as will most efficiently aid in the exercise of its revisory and appellate powers.</p> <p> (4) Divorce. </p> <p>A petition for divorce cannot be treated as an ordinary suit for the determination of rights upon adversary claims. Throughout the travel of the cause the state desires that the marriage relation shall not be dissolved and after a showing entitling a petitioner to divorce the law will not force it upon the petitioner if he does not then desire it, nor should the court listen to the guilty spouse demanding an advantage from wrong doing.</p> <p> (5) Divorce. Final Decree. </p> <p>It is error to enter a final decree for divorce against the wish of a petitioner in whose favor a decision has been given.</p>

<p>(1) National Banking Act. Power of National Bank to Act in Fiduciary Capacity.</p> <p>Under the Federal Reserve Act power was granted to a National Bank “to act ... as trustee, executor, administrator and registrar of stocks and bonds in so far as the exercise of such power is not in contravention of state or local law, ”</p> <p>Held, that the exercise by a National Bank of the fiduciary powers enumerated in the permission of the Federal Reserve Board, was-in contravention of the laws of this State.</p> <p> (2) National Banking Act. Federal Reserve Act. Power of Congress to control construction of state laws. </p> <p>The amendment by Congress of the Federal Reserve Act in 1918 providing that “whenever the laws of such state authorize or permit the exercise of any or all of the foregoing powers by state banks, trust companies or other corporations which compete with national banks, the granting to and the exercise of such powers by national banks shall not be deemed to be in contravention of state or local law within the meaning of that act,” must be assumed as intended as the legislative construction which Congress placed upon the provisions of its own act, for the power of Congress to control a state court in the construction of the laws of its state, cannot be admitted.</p> <p>(S) National Banking Act. Federal Reserve Act. Mandamus. State Officers.</p> <p>Without the sanction of the general assembly, the duties of a state officer are not to be extended through the provisions of an act of congress.</p>

<p> (1) Landlord and Tenant. Attornment. </p> <p>Whether a tenant attorned to a new landlord is a question of fact, and where it appeared that the tenant received legal advice that by paying rent to the new landlord he would waive his rights and nevertheless paid rent several times although asserting that he did not waive his rights in so doing and that the landlord at request of tenant made repairs on the premises, a finding that tenant attorned was warranted.</p>

<p>Mechanic’s Lien. Heard on appeal of petitioner from decree of Superior Court and decree affirmed.</p>

<p>Divorce. Heard on respondent’s appeal from decree awarding custody of minor child and support. Appeal dismissed.</p>

<p>Trespass on the Case. Heard on exceptions of defendant and overruled.</p>

<p>After Judgment by Default. Heard on exception of defendant and overruled.'</p>

<p>(1) Mandamus. Jurisdiction. Trespass and Ejectment.</p> <p>Upon entering a writ of trespass and ejectment in a district court plaintiff filed a claim for jury trial. Defendant during the session of the court answered the case and filed a special appearance “for the purpose of demurring to said declaration.” One week after the entry day, the cause was certified to the superior court which remanded it to the district court for want of jurisdiction:—</p> <p>Held, that under Gen. Laws, cap. 286, §§ 7 and 8 in connection with § 5, providing that in such an action either party may claim a jury trial on entry day and if the case be answered during the session of the court it shall at once be certified to the superior court, the provision for certification is mandatory, and a district court is not justified in retaining such case for any purpose.</p> <p>Held, further, that the case should have been certified on entry day, and when it was certified on the following week such certification should have been considered as of the entry day, and the superior court should have retained jurisdiction.</p> <p> (£) District Courts. Certification of Cause. Jurisdiction. </p> <p>The failure of a clerk of a district court to certify a case upon a claim for jury trial at the time required by statute, does not affect the jurisdiction of the superior court, and if the case is later certified whether voluntarily or by mandamus proceedings, it should be treated as far as circumstances will permit as though duly certified in accordance with the statute.</p> <p>(S) Trespass and Ejectment. Jurisdiction. Certification.</p> <p>Upon entering a writ of trespass and ejectment in a district court plaintiff filed a claim for jury trial. Defendant during the session of the court answered the case which was continued one week “for hearing on demurrer.”</p> <p>Held, that while the positive requirement of the statute for certification admitted of no exception, such certification was in effect a transfer of the entire case to the superior court, where it should be tried on all issues of law or of fact which may arise between the parties.</p> <p> (4) Pleading. Trespass and Ejectment. Further Pleas in Superior Court. </p> <p>Although the language of Gen. Laws, cap. 287, § 3, as amended by Pub. Laws, cap. 2184, giving to parties in any case certified to the superior court from a district court on claim of jury trial, the right to file further pleas within 10 days from certification, is general, it is so inconsistent with the procedure in trespass and ejectment prescribed by cap. 286, § 8, that neither § 3 of cap. 287 nor the decision in Bates v. Colvin, 21 R. I. 57, construing said section is applicable, to such cases.</p>

<p>Appeal prom Decree op Probate Court. Heard on motion to dismiss bill of exceptions and denied.</p>

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

<p>(1) Workmen’s Compensation Act. Partition of Payment by Agreement.</p> <p>In a decree under the Workmen’s.Compensation Act, the Gourt found that the second wife of deceased was entitled to the total compensation, but by request and consent of said wife decree was entered providing that the amount should be divided in thirds between her and the two children of deceased by his first wife. The first wife appeared as the next friend of her two minor children and the decree provided that the payment for the children should be made to her to be applied to their support.</p> <p>Held, that all of the parties being before the court it was competent for the second wife to assent to the decree which thereafter would be binding upon her.</p> <p>Held, further, that as the children were parties through their next friend, the decree was binding upon them and the receipt of the next friend would be ample discharge to the respondent.</p>

<p>Divorce.’ Heard on. exceptions of respondent and sustained.</p>

<p>(1) Soldiers’ Bonus.</p> <p>Petitioner who was a member of the National Guard of the State April 6, 1917, was mustered into the Federal service by signing a Muster Roll, and was honorably discharged May 11, 1917. As a member of the National Guard he performed military service within the limits of the State in the nature of police duty.</p> <p>Held, that the Federal service performed by petitioner was not included within the provisions of the Bonus Act, Cap. 1832, Pub. Laws, 1920.</p>

<p>(1) Automobiles. Negligence.</p> <p>One who was backing a truck out of a shed onto the street, being unable to see the street and relying upon another employee to direct his movements and who failed to stop immediately upon receiving a signal so to do but ran the truck backward a distance of four feet, causing a collision with the car of plaintiff was guilty of negligence.</p> <p> (2) Automobiles. Contributory Negligence. </p> <p>Where plaintiff knew of the existence and use of an entrance to a lumber shed of defendant by trucks of defendant in moving lumber, the street wall of the shed being built close to the inner side of the sidewalk, in the exercise of due care he was under the obligation to consider the possibility of meeting some vehicle at the point of exit from the shed and regulate his conduct accordingly, but he was not bound to anticipate negligence, and where he was driving slowly and had until within approximately one hundred feet of the entrance watched that point, the temporary withdrawal of his eyes for a few seconds during which interval a truck of defendant was backed into the street cannot be held to be negligence as a matter of law.</p> <p>(S) Contributory Negligence. Motion to Direct Verdict. New Trial.</p> <p>Except in clear cases in which there is no room for reasonable difference of judgment, the question of contributory negligence is one of fact and as such is in the first instance properly submitted to the jury. The question of the weight and the preponderance of the evidence is not properly raised on a motion for the direction of a verdict but can be and should be considered only by the justice in later proceedings upon-motion for new trial, and such question will not be considered on exceptions by the appellate court.</p>

<p> (1) New Trial. Approval of Verdict. </p> <p>Where the trial justice has deceased so that a verdict lacks his approval, on exceptions to a pro forma denial of a motion for new trial by another justice, the evidence on the question of negligence being conflicting, and not very strongly preponderating against the verdict and the verdict being one that fair-minded men might have found, it will not be disturbed.</p>

<p>Trespass for assault and battery. Heard on exceptions of defendant and overruled.</p>

<p>Trespass on the Case against a town. Heard on exceptions of defendant and overruled.</p>

<p>Assignment at common law. Heard on appeal of assignee from decree of Superior Court. Appeal dismissed.</p>

<p> (1) Divorce. Dismissal of Petition. Allowances for Support. </p> <p>After a decision in favor of a petitioner for divorce, on exceptions of respondent the Supreme Court ordered the petition dismissed. After the filing of the petition the Superior Court had made an allowance to petitioner for her support during the pendency of the case, a portion of which was in arrears at the time of the filing of the rescript of the Supreme Court.</p> <p>The decree in favor of the petitioner also ordered the respondent to pay her a stated sum per week for the support of herself and child: — •</p> <p>Held, that while with the dismissal of the petition the interlocutory decree of the Superior Court became eliminated in its entirety, still the rights of the petitioner under the order for the allowance were not affected as to anything due her up to the date of the filing of the rescript.</p> <p> (2) Divorce. Allowances for Support. Judgments. </p> <p>As under Gen. Laws, cap. 247, § 14, allowances for support are “so far regarded as a judgment for debt that suits may be brought or executions may issue thereon for amounts due and unpaid,” it is immaterial whether proceedings to collect the same are commenced before or after the dismissal of the petition.</p>

<p>Pub. Laws, cap. 2231, January session, 1922, “An act to enforce the prohibition of intoxicating liquors for beverage purposes” is not obnoxious to Art. I. sec. 10, Cons. R. I., as depriving an accused of life, liberty, or property without due process of law; nor to Cons. U. S. sec. Í of Art. XIV of amendments so far as the provisions of said chapter affect certain respondents charged in criminal complaints with a violation of said chapter.</p> <p> {%) Constitutional Question. Jurisdiction. </p> <p>While a case is before the court on a constitutional question certified from a district court on a criminal complaint it is not improper to entertain a motion to dismiss tlie complaint on the ground that the district court lacked jurisdiction, since such question may be raised at any time before-judgment in a cause.</p> <p> (3) Intoxicating Liquors. Conflict of Laws. Enforcement Acts. </p> <p>Pub. Laws, 1922, cap. 2231, the “Sherwood Act” is not in conflict with the Volstead Act, in that the former act prohibits the manufacture in this State of dealcoholized liquors having an alcoholic content of less than one-half of one per centum when the process of its manufacture is completed, but on the contrary there is the manifest intention on the part of the legislature to make the provisions of the State enforcement act conform to those of the Federal Act.</p> <p> (4) Public Acts. Presumptions of Validity. Evidence. </p> <p>In considering the validity of an enrolled act of the legislature, depending for its proper determination upon the nature of the action of the houses of the general assembly the court may receive the evidence furnished by the public records embodied in the legislative journals, and the validity of an act of the legislature will not be impeached where such journals show nothing to overcome the presumption of the validity of the act.</p> <p> (5) Public Acts. .Validity of Public Acts. Presumptions. </p> <p>In considering the validity of an act of the legislature the court will not assume that transactions of the legislature were otherwise than the journal states nor that the members did not appreciate the nature of the action of that body.</p>

<p>(1) Interpleader.</p> <p>Complainant as counsel in two actions for personal injury to respondents, who at the time were husband and wife, recovered judgment in favor of the respondents. Thereafter respondents made various claims as to payment of counsel fees and expenses of suit against one another and complainant filed interpleader and a consent decree was entered permitting him to pay into court the proceeds of the two judgments after deducting his fees charged respectively against each judgment.</p> <p>Decree was entered before answers were filed.</p> <p>Held, that from the answers it appeared that interpleader would not he, since the claim of one respondent was simply for breach of contract against the other, but as the decree was not appealed from and was final the parties could not be placed in statu quo by dismissing the bill, and although the case could not be disposed of as one of interpleader, the bill should be retained £o make an equitable disposition of the fund.</p> <p>Held, further, that the portion of the fund to which each respondent was entitled when it was paid into the court should be returned to them; the costs and expenses of complainant retained by him with consent of respondents upon filing of the bill and the fees taxed by the clerk should be borne equally by respondents and neither should recover costs.</p> <p>(0) Interpleader.</p> <p>Interpleader cannot be maintained when the demand of one party is against the-other personally and not upon the fund in dispute.</p>