Volume 45 — Rhode Island Reports

<p>Petition on behalf of the State for a prerogative writ of injunction. Heard and writ granted.</p>

<p>Petition for relief under Gen. Laws, cap. 297, § 3. Heard and prayer of petition granted.</p>

<p>(1) Findings of Fact. Error and Appeal.</p> <p>While findings of fact made from conflicting testimony by a justice sitting without a jury are entitled to great weight, such findings when- clearly wrong will be set aside.</p> <p> (8) Mortgages. Equity. Foreclosure Sale. Redemption After Sale. </p> <p>Where property was sold under foreclosure of mortgage for a greatly inadequate price, with no competition, and bought in through an agent by the mortgagee, the mortgagor being unrepresented through an excusable' mistake in believing the sale would be adjourned, the mortgagor is entitled to relief in equity.</p> <p> (8) Mortgages. Relief After Sale. Expense of Sale. </p> <p>Where a mortgagor is entitled to relief after a foreclosure sale, but it does not appear that the mortgagee in conducting the sale, was actuated by bad faith, the mortgagee should not be required to bear the expense of the sale.</p>

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

<p>(1) Receivers. Attachment. Taxes.</p> <p>While personal property of a corporation was under attachment a receiver was appointed, the decree providing for the delivery of the property of the corporation to the receiver and the attached property was so surrendered. There was a claim due the State for corporation taxes and also a claim of the City of Providence for taxes assessed upon the personal property of the corporation. The city had not levied upon or distrained the property.</p> <p>Held, that the claims should be paid in the following order: 1. Claim of attaching creditor. 2. Fees of receiver and costs and expenses incident to the receivership. 3. Taxes and interest thereon due the State. 4. Taxes and interest thereon due the city.</p> <p> (2) . Taxes Upon Personal Property. Liens. </p> <p>There is nothing in the statutes providing that taxes assessed against personal property shall constitute a hen upon said property from the time of the assessment.</p>

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

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

<p> (1) Replevin,. District Courts. Jurisdiction. </p> <p>District courts have exclusive original, jurisdiction of writs of replevin where the value of the goods or chattels to be replevied does not exceed $500 regardless of the amount of the ad damnum stated in the writ.</p> <p> (2) Replevin. District Court. Damages. </p> <p>Under Gen. Laws, cap. 336, § 7, a district court has jurisdiction in an action of replevin to award a plaintiff who has made good his plea, his reasonable damages in full even though the damages exceed five hundred dollars.</p>

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

<p>(1) Liability Insurance. Construction of Statutes.</p> <p>Pub. Laws, cap. 1268 (1915), sec. 9, provided that every policy insuring ■against liability for personal injuries should contain provisions that the insurer should be directly hable to the -injured party and such injured party might join the insurer as a defendant.</p> <p>Pub. Laws, cap. 2094 (1921), provided that every policy “hereafter written shall contain provisions that the insurer shall be directly liable to the injured party” but such injured party “shall not join the insurer as a defendant.”</p> <p>An insurer had entered into a contract with the principal defendant in accordance with cap. 1268 previous to the enactment of cap. 2094. The accident to plaintiff occurred subsequent to the passage of cap. 2094.</p> <p>In an action by plaintiff both the insured and insurer were joined as parties defendant and on motion insurer was dismissed.</p> <p>Held, error, as cap. 2094 was not retroactive in modifying or amending cap. 1268, but the acts conferred substantial rights which were not in conflict.</p>

<p>(1) Probate Law. Setting Off Real Estate in Addition to Dower.</p> <p>Gen. Laws, cap. 313, § 9, authorizing a probate court when there is no issue of a deceased person living at his death, to set off to the widow such portion of the real estate of the husband not required for the payment of debts, as may be suitable for her situation to be held in addition to her dower, applies to either a testate or intestate estate.</p> <p> (2) Construction of Statutes. Title of Act. </p> <p>When such appears to be the intent of the legislature an act may treat of subjects other than those contained in the title.</p>

<p>Trespass on the Case for negligence. Heard on exceptions of defendants and overruled.</p>

<p>(1) Elections. Ballots.</p> <p>In passing upon the validity of ballots cast for a candidate whose name was not printed upon the official ballot, the circumstances surrounding the election should be taken into consideration.</p> <p> (8) Elections. Ballots. Address of Candidate. </p> <p>A voter desiring to vote for a candidate other than those whose names appear upon the official ballot, is not required to insert the residence of such person; under Gen. Laws, cap. 11, § 43, and where there could be no uncertainty as to the person for whom the vote was cast the court will not impose such requirement, but it might occur at some election that without the addition of a residence it would be impossible to determine the voter’s choice.</p> <p>(S) Elections. Ballots. Distinguishing Mark.</p> <p>Under the circumstances of the election before the court, the addition of the residence in connection with the name of a candidate written by the voter upon the ballot, will not vitiate the ballot as constituting a distinguishing mark, and should be treated as surplusage.</p> <p> (4) Ballots. Elections. </p> <p>As the printing of parallel lines forming a “box” for the voter to write in the name of a candidate, upon the ballot, is not provided for by statute, the fact that the address of the candidate was written outside the “box” does not vitiate the ballot.</p> <p> (5) Elections. Ballots. </p> <p>Under cap. 11, Gen. Laws, permitting a voter to cast his ballot for a candidate other than those whose námes appear upon the official ballot by writing the name “in the blank or right-hand column under,the proper title of office” while the voter is not restricted to the “box” prepared for such purpose, he should comply substantially with the statutory requirement.</p> <p> (6) Elections. Ballots. </p> <p>While it is not necessary for a voter to make a cross at the right of a name which he has written in the blank or right-hand column of his ballot, the making of such cross does not render the ballot invalid.</p> <p>(7) Elections. Ballots.</p> <p>Where it appeared that petitioner a candidate for an elective office had been nominated for such office but on account of not complying with statutory requirements, his name was not printed upon the official ballots, but the electors had been notified by advertisements and otherwise to write his name with street and number of his residence upon the ballot, the address in the circumstances of the case being treated as surplusage, the fact that a voter wrote the wrong number of .the street upon the ballot did not vitiate the ballot, in view of the fact that it appeared that no person of the name of petitioner resided at such address and the addition of the wrong address did not tend to create any uncertainty as to the identity of the person whose name was written.</p> <p>(6) in view of the circumstances of the case the addition of “Mr.” before petitioner’s name or “Pawtucket, R. I.,” or “City” after his name should be treated as surplusage.</p> <p>(c) Ballots on which the voter wrote petitioner’s name with a number on a street other than the street where petitioner resided, it appearing in evidence that no one of the name of petitioner resided at any of such addresses, the address being treated as surplusage, the writing of such wrong address did not constitute a distinguishing mark, and could not create any uncertainty as to the person for whom the vote was cast.</p> <p> (8) Elections. Ballots. Distinguishing Marks. </p> <p>Where a voter without malting a cross in the circle under the party emblem, drew a fine across the name of the candidate of that party for an elective office, and wrote the name of petitioner in the right-hand column, the line through the name amounted to a distinguishing mark.</p> <p> (9) Elections. Ballots. </p> <p>Where voters misspelled the Christian or surname of the candidate or the name of the street of the candidate’s residence, the court will apply the doctrine of idem sonans and will, give effect to the voter’s intention if it can be determined fairly.</p> <p> (10) Elections. Ballots. </p> <p>Where a voter wrote the name of the candidate with some middle initial other than that of the candidate under the circumstances of the case the middle initial not being required, for the purpose of identification, the ballot is not affected.</p> <p> (11) Elections. Ballots. </p> <p>Where a voter wrote the surname of the candidate with some Christian name other than that of the candidate, the ballot should not be counted for the candidate, the name being that of another person.</p> <p> (13) Elections. Ballots. </p> <p>Ballots cast for a candidate whose name was not printed on the official ballot, where the voter simply wrote the surname or the surname with “Mr.” prefixed, in some cases with an address and in others without an address, the intent of the voter to vote for the petitioner being apparent, should be counted.</p> <p>(b) ballots where the voter wrote the candidate’s name without a middle initial, some with address and some without address, should be counted.</p> <p> (IS) Elections. Ballots. </p> <p>Ballots where a voter made a cross in the circle under the party emblem and wrote the name of petitioner in the same column and did not cross out the name of the candidate printed in the column for the elective office, are invalid it being impossible to determine his choice for such office.</p> <p> (14) Elections. Ballots. </p> <p>A ballot marked with a cross in each circle under two party emblems should not be counted.</p> <p> (15) Elections. Ballots. </p> <p>Where a voter placed a cross' in the circle under a party emblem and then in the column at the right of the ballot wrote the name of a candidate for an elective office, but did not draw a line through the name of the candidate for such office printed under the party emblem, the ballot was properly counted, under the authority of Gainer v. Dunn, 29 R. I. 239, for the candidate in the party column. Sweetland C. J., and Vincent, J., dissenting on the above point (15).</p>

<p>Bill in Equity. Heard on appeal of complainants and dismissed.</p>

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

<p>(1) Municipal Corporations. Police Officers. Payment of Salaries. Mandamus.</p> <p>Under the act creating the town of West Warwick, the town treasurer was directed to pay the salaries of police officers appointed, by the board of police commissioners, on orders from the board, to be paid from money received from license fees. The treasurer did not have funds received from license fees sufficient to pay petitioner’s bill for services as a police officer doing patrol duty. The financial town meeting appropriated a sum for the services of patrolmen, but declined by a resolution “to appropriate any money to pay the salary of the present chief of police (the petitioner) so long as he shall remain in said office.” The petitioner had received no compensation as chief of police from the time he commenced doing patrol duty.</p> <p>Held, that the fund for patrol service was not subject to the order of the town council, but to that of the police commissioners under the act creating the town, but as it did not appear that the fund was at the time of the hearing sufficient to pay any of petitioner’s bills, regardless of whether the fund was available mandamus should not issue commanding payment out of the fund.</p> <p>(#) Municipal Corporations. Police Officers. Payment of Salaries. Mandamus.</p> <p>Where the legislature has not imposed any obligation upon a town to supply funds for the maintenance of its police department, as it might have refused to make any appropriation, it can attach binding conditions to such appropriation as it may make for police purposes, and where the, town meeting by resolution prohibited the town treasurer from paying any money out of the fund appropriated, as salary for a designated official, the board of police commissioners charged with its expenditure cannot violate the conditions attached to the appropriation.</p>

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

<p>Bill in Equity for accounting. Heard on appeal of respondents and dismissed.</p>

<p> (1) Wills. Omission of Child. </p> <p>Where there is nothing to show that the omission to provide for a child and grandchild of testatrix, in a will was intentional, by force of the statute it is presumed to have been unintentional and occasioned by accident or mistake and they take the same share of the estate of testatrix as if she had died intestate.</p> <p> '($) Probate Proceedings. Dower. Estoppel. </p> <p>'Signing a waiver of notice of tile probate of-a will, does not in itself estop the signers from denying the title of devisees under the will.</p> <p> ■(8) Wills. Estoppel. </p> <p>Where one had an estate by curtesy in the real estate of his wife, the heirs of the wife are not estopped from denying that he was seized of an estate of inheritance under the will of his wife, by permitting him to remain in possession during his lifetime, nor were they guilty of laches in not attempting to deprive him of possession.</p> <p> •(4) Dower. Estoppel. </p> <p>Where complainant was not entitled to dower in the estate of her husband, which on the termination of his life estate vested in respondents in fee, and after the death of the husband, complainant and respondents executed an agreement reciting that the parties being the owners of the real estate agreed that the rents should be collected and divided in equal proportions among the three; such agreement being subject to revocation at any time, and the parties acted thereunder for over four years; respondents are not estopped to deny the claim of dower by complainant in such real estate since they made no representations to complainant in regard to the title upon which she acted or failed to act to her disadvantage.</p>

<p>Bill in Equity for specific performance. Heard on appeal of respondents and appeal dismissed.</p>

<p>Interpleader. Heard on appeal of a. respondent and appeal dismissed.</p>

<p> (1) 'Saks. Mortgages. Notice. </p> <p>In financing the purchase of automobiles, plaintiff gave a dealer the money to secure them from the carrier; dealer gave plaintiff a bill of sale and plaintiff under written agreement leased the cars to dealer, plaintiff agreeing to sell the cars to dealer on receipt of payment as provided in agreement, title to remain in plaintiff and dealer retaining possession. , Subsequently plaintiff claiming breach of agreement, in order to take possession of a oar placed a tag on it bearing a notice that it was property of plaintiff, leaving the car with the dealer. The tag was removed and the car sold to defendant, a bona fide purchaser, for value, without notice. On replevin,—</p> <p>Held, that if the agreement was regarded as a mortgage, as it was not recorded and defendant had no notice of plaintiff’s claim, he secured a good title, and if the transaction was considered as a sale, defendant secured title under Gen. Laws, cap. 262, § 9.</p>

<p> {!) Contracts. Principal and Agent. </p> <p>Where plaintiff knew that defendant was acting as agent regardless of plaintiff’s rights against the principal he has none against the agent, and the fact that the principal allowed the agent to retain a portion of the sum paid by plaintiff, on account of a claim of the agent against the principal does not affect the rights of plaintiff.</p> <p> (2) Offer and acceptance. Direction of Verdict. </p> <p>Whether a transaction between the plaintiff and the agent of defendant was an offer by plaintiff to purchase real estate of defendant and if so, whether . notice of acceptance was communicated to plaintiff within a reasonable time or whether it was an acceptance by plaintiff of an offer by defendant through his agent, were questions of fact for the determination of the jury under proper instructions, and where such issue was not submitted to the jury, but they were charged that the facts constituted an offer by plaintiff, a new trial will'be granted.</p>

<p> (1) Automobiles. Bailment. Keeper of Garage, Duty of. </p> <p>A garage keeper with whom an automobile is left for storage is bailee for hire and as such is under legal obligation to exercise such ordinary care as a man of ordinary prudence and discretion ought to exercise under all circumstances if the property were his own, although he is not an insurer.</p> <p> {2) Automobiles. Bailment. Keeper of Garage, Duty of. </p> <p>It is the duty of the keeper of a garage where cars are left for storage to use ordinary care in the employment of a trustworthy servant, in charge of the garage and if he fails to do so he is responsible for the damages arising from employing an untrustworthy servant to have charge of the garage.</p> <p> {3) Automobiles. Keeper of Garage, Duly of. </p> <p>Where there was evidence that the keeper of a garage had knowledge that his servant who took plaintiff’s car, had previously taken the car of another person and continued to employ him, motion for direction of verdict for defendant was properly denied and the case was properly submitted to the jury on the question whether defendant had exercised ordinary care in leaving the garage in the sole care and custody of the servant.</p>

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

<p>Bill in Equity. Heard on appeal of respondents and appeal dismissed.</p>

<p> (1) Wills. Invalid Trusts. Care of Burial Lot. </p> <p>Testamentary provision bequeathing a sum of money in trust to a church the income to be used for the care of the burial lot and stone of testator, the balance of the income over the amount required for that purpose to be used at the discretion of the vestry of the church.</p> <p>Held, the balance of income over the amount required was clearly intended by testator as a gift for religious purposes in accordance with the discretion of the vestry of the church.</p> <p>Held, further that the bequest to trustees for the care of the burial lot in perpetuity was invalid but the portion so bequeathed being ascertainable, if not used in administration of the .estate would fall into the residue.</p> <p> (S) Wills. Care of Burial Lot. </p> <p>Where a testator attempted by means of an invalid trust to provide for the care of his burial lot and stone, as the estate is solvent the executors may in their discretion endeavor to carry out the intention of testator, by paying under provisions of Gen. Laws, cap. 318, § 4, to the cemetery corporation a sum for the perpetual care of the lot, the amount of the payment to be determined by the probate court and allowed as part of the funeral charges.</p> <p> (S) Wills. Trusts. Conflicting Clauses. </p> <p>Where a will provided for the payment of a sum to a church for religious purposes to be held in trust and in another clause provided for a trustee for all sums placed in trust except one specified gift, although the provisions are in conflict, it appears that testator did not have the trust for religious purposes in mind in making the later provision, and the trustee is not trustee of that trust.</p> <p> (D Trusts. Passive Trusts. </p> <p>Where the control of the income of a trust is placed in the hands of the beneficiary, the trust is executed by the statute of uses and the fund passes to the beneficiary.</p> <p> (5) Wills. Trusts. ■ Income. </p> <p>Testamentary gift of a fund to be placed in trust, the beneficiary “to have the 'income her fife after her to be equally divided among her surviving . children. ”</p> <p>Held, that on death of beneficiary, the surviving children took the fund, rather than the income, to be divided equally among them.</p> <p> (i6) Wills. “Heirs.” ■ “Children.” “Issue.” </p> <p>The words “heir” or “heirs” are terms of technical import and include all who might succeed in case of intestacy, but they are sometimes used popularly as words of description in the sense of “children” or “issue.” In the construction of a will the latter interpretation is permissible when that clearly appears to have been the intention of testator.</p> <p>(7) Wills. “Heir.”</p> <p>Testamentary provision “To X and his wife for their life if they shall have an heir it shall go to said heir after them.”</p> <p>Held, the word “heir” should be given the interpretation of “child” “childreh” or “issue” of the marriage of X and his wife, such descendants to take per stirpes.</p> <p> (8) Wills. Trusts. </p> <p>Testamentary provision “To X and wife the sum of $2,000 to be placed in trust they to have the income of the same should his wife survive him then it shall go to her. ”</p> <p>Held, that during the lives'of X and his wife the income of the fund belonged to them in equal shares and if the wife survived, the fund belonged to her, but if X survived his wife, the entire income belonged to him for life and upon his death the fund fell into the residue of the estate.</p> <p> (9) Wills. Intestate Estate. </p> <p>Where testator provided that the residue should be reduced to money and divided into fifty equal parts and bequeathed forty-eight of the parts, he died intestate as to the other two parts, and they should be distributed in accordance with the statute as to distribution of intestate estate.</p>

<p>(1) Criminal Law. Homicide. Evidence. Insanity.</p> <p>On an indictment for murder, the defence being insanity, the evidence showing a basis for the claim that defendant, was suffering from mental disease not merely of a temporary and transient nature, but which might' be found to be hereditary, it was error to exclude evidence offered to show insanity of a grandparent; in the family of defendant on both sides and of a sister of defendant’s mother. State v. Quigley, 26 R. I. 263, distinguished.</p> <p> (8) Criminal'Law. Evidence. Insanity. </p> <p>Evidence tending to show insanity in collateral kinsmen of an accused rests within reasonable limits in the reasonable discretion of the trial court, in view of the circumstances of each particular case.</p> <p>(S’) Criminal Law. Murder in First and Second Degree.</p> <p>Pub. Laws, cap. 1258, § 6 (1915), relating to murder in the first and second degrees, requires that the premeditation necessary to establish the first degree of murder must be shown to have existed for more than a barely appreciable length of time before the killing; it must have had something more than a momentary existence.</p> <p>(4) Criminal Law. Murder.</p> <p>Under the statute relating to the crime of murder a jury may determine the . degree of murder, whether the same is charged in the indictment or not.</p> <p>(5) Criminal Law. Murder.</p> <p>Where there was evidence of the absence of any settled purpose on the part of a defendant for any but a very brief time before the killing, the failure of the court to instruct the jury, when requested, in regard to murder in the second degree, was error.</p> <p>(5) Criminal Law. ■ Burden of Proof. Insanity.</p> <p>Charge that the burden of proving insanity by a fair preponderance of the evidence rested upon the defendant, was proper.</p> <p>(7) Criminal Law. Trial. Comments of Court.</p> <p>Regardless of the opinion of the trial court as to the merits of a defence, it is its duty to exercise scrupulous care that the jury should not be influenced in its finding of fact by what they believe to be the opinion of the court. Evidence considered and held that defendant was prejudiced by the attitude and language of the trial court.</p>

<p> (1) Principal and Agent. Right to Commissions. </p> <p>Where an agent had not contracted to serve his principal for any specified time and was working on a commission basis he was entitled to commissions which were due and unpaid at the time he ceased to act in good faith for his principal.</p> <p>{%) Principal and Agent. Right to Commissions. Diversion of Orders. Where an agent had not contracted to serve his principal for any specified time and was working on a commission basis, and had begun negotiations with prospective customers before terminating his relation with principal, if such orders were not obtained until after agent acting in good faith severed his connection with his principal, agent had the right to renew negotiations with his former prospective customers and turn over such orders to other manufacturers, and request to charge that under such circumstances principal was entitled to the profits it would reasonably have made on such orders was properly refused.</p> <p>(,3) Principal and Agent. Guaranties.</p> <p>Where an agent in response to request of his principal for references in regard to a new customer wrote principal, “I am willing to guarantee this account” in the absence of evidence showing a custom between the parties for principal to ship goods on the credit of agent when there was a question as to the credit of a customer, or .evidence tending to show the language used by agent had other meaning than its natural meaning, its ordinary meaning amounted to no more than an offer of guaranty, which was not accepted.</p> <p>(4) Guaranty. Extension of Time.</p> <p>Where without consent of guarantor, creditor accepts a note thereby extending the credit originally given the debtor, the guarantor is discharged.</p>

<p> (!) Wills. Trusts. </p> <p>X. by indenture transferred securities to a trustee, the indenture providing that during the joint lives of the wife of X. and their two sons the trustee should pay a fixed annual sum to the wife and children from the net income if sufficient, and pay to the settlor during his life and after his death to his appointees by will, or in default of appointment to his next of kin, so much of the net income as was not required to malee the payments to the wife and children of settlor or either or any of them. Thereafter settlor executed a supplemental indenture, and provided that in case the trustee received in any year income in excess of the amount necessary for the payments to the wife and children the trustee should unless otherwise directed by settlor in his lifetime or after his death by such person as settlor should by will appoint if he made such appointment, add such excess of income to the corpus and keep the same invested, but in such manner that such excess and the accretions thereto should at all times be distinguishable from the remainder of the trust property, and in case in any year the income from the corpus was not sufficient to make the payments to the beneficiaries the trustee should apply the accumulated excess of income and the accretions thereto to such payment so far as should be necessary. The net income from the corpus was always sufficient to make the payments. X. deceased, not having in his lifetime revoked the direction to trustee to add the surplus income to the trust property and made no appointment by will.</p> <p>Held, that the excess net income accruing during settlor's lifetime was his property which by the supplemental indenture was added to the trust estate and after death of settlor remained a part of such trust estate.</p> <p>Held, further, that as to the excess of income accruing after death of settlor, which by the original indenture was to be disposed of only by will, as settlor by will gave testamentary effect to the supplemental indenture, it was un- . necessary to consider whether he had power to dispose of such excess income accruing after his death by the supplemental indenture.</p> <p>Held, further that settlor by giving in his will testamentary effect to said indentures “so far as the same shall be operative” made the appointment by will in accordance with the right reserved under the original indenture, and thereby the trustee was by the will directed to add the excess income as it should accrue to the trust estate, and at the termination of the trust make the same disposition of any excess remaining as was provided in the indenture for the corpus of said estate.</p> <p>Under a separation agreement between settlor and his wife, it was provided that on the death of settlor his executors should purchase an annuity for the wife, equal to the annual payments which the wife was entitled to under the agreement or deposit securities with some trust company sufficient to provide the required income.</p> <p>Under the will of settlor, he directed that all the provisions of the indentures and of the agreement should have the same testamentary effect as if incorporated in the will and if the net income of the securities should be insufficient for the payment of the annuities any deficiency should be supplied from the net income from a trust fund established under the will.</p> <p>Held, further, that testator did not intend that the excess income accruing before and after his death should be used for the payment of the annuity provided for in the separation agreement, as by the will he otherwise disposed of all of the excess income accruing from the securities held by the trustees under the original indenture.</p> <p> (2) Wills. Residuary Clause. </p> <p>’General language in a residuary clause cannot take precedence of other language in the will showing a clear intention to bequeath certain income.</p>

<p>(1) Bills of Exceptions. Review of Superior Court after Judgment.</p> <p>The decision of the Superior Court after judgment in granting defendant’s petition for allowance of costs, is reviewable by plaintiff upon a bill of exceptions.</p> <p> (0) Bills of Exceptions. Review of Superior Court after Judgment. </p> <p>The statutory bill of exceptions has become under the practice of this state, such a convenient method for appellate proceedings that the court has permitted its use in reviewing supplementary rulings of the Superior Court after judgment, rather than the more cumbersome extraordinary processes, but such action is not to be regarded as a precedent for any further extension of the use of a bill of exceptions beyond that, specifically set down in the statute for review of the rulings and decisions of the Superior Court made before judgment in an action at law.</p> <p>(S) Replevin. Costs.</p> <p>Gen. Laws, 1909, cap. 336, §§ 4 and 5 (now Gen. Laws, 1923, cap. 387, §§ 4 and 5) provides that after judgment for a defendant in replevin he shall recover “such reasonable costs as shall be adjudged by the court.”</p> <p>Held that the word “costs” refers to those matters of reasonable expense which the defendant has incurred in connection with the plaintiff's proceedings before the court not including counsel fees; and expenses incurred in furnishing evidence as to the financial standing of persons offered as sureties upon the bonds, were properly allowed.</p>

<p>Assumpsit. Heard on exceptions of both parties. Exceptions of plaintiff overruled. Exception of defendant sustained, on ground that damages were excessive.</p>

<p>Divorce. Heard on appeal of petitioner and dismissed.</p>

<p>An action for deceit by a broker, alleging that defendant prevented him from effecting a sale of property direct to a prospective customer and that but for the fraudulent representations of defendant, plaintiff would have been entitled to demand a commission from the owner does not state a case, where it does not appear that plaintiff could have effected a sale directly to the customer, and therefore have earned the commission.</p>

<p> (1) Foreign Corporations. Appointment of Attorney. Contracts. </p> <p>Proof of compliance by a foreign corporation with the statutory provisions relating to the appointment of an attorney, before enforcing in the courts of this state, a contract made in the state, should be by the best evidence which is a certified copy of the essential instrument filed in the office of the secretary of state and not by the oral testimony of an officer of the corporation.</p> <p> (£) Foreign Corporations. Appointment of Attorney. Evidence. </p> <p>Testimony of an officer of a foreign corporation that it had complied with the laws of this state relating to foreign corporations in order to do business is objectionable, as calling for the witness’ opinion upon a question of law.</p> <p>(3) Foreign Corporations. Appointment of Attorney. Validity of Contracts.</p> <p>Although compliance with the provisions of Gen. Laws, 1923, secs. 65 and 67, cap. 248, is made a condition precedent to carrying on business or enforcing in our courts contracts made by it in this state, nevertheless such contracts should be regarded as valid upon behalf of the corporation as well as upon behalf of the other party thereto.</p> <p> (4) Foreign Corporations. Appointment, of Attorney. Pleading. </p> <p>When the pleadings of a plaintiff suing upon a contract made in this state disclose that it is a foreign corporation doing business here, plaintiff need not allege and prove that it has complied with the statutory requirements relating to the appointment of an attorney, but non-compliance should be shown by defendant, but if the plaintiff does not disclose in its writ and declaration that it is a foreign corporation, it is incumbent upon plaintiff at the trial to establish by competent evidence its right to maintain its . action.</p> <p> C5) Foreign Corporations. Appointment of Attorney. Pleading. </p> <p>Under Gen. Laws, 1923, cap. 248, sec. 67, want of capacity to sue by a foreign corporation may be set up by plea in abatement or non-compliance with the statutory requirements may be interposed at the trial as a bar to recovery.</p>