the note in suit. We were of opinion that the plaintiff had failed to establish the allegation, that the defendant had received the benefit of the proceeds of the note, and accordingly the offer of the note in evidence was rejected. Thereupon, at the close of the testimony on the part of the plaintiff, upon motion of counsel for the defendant, judgment of compulsory nonsuit was entered. The plaintiff has made this motion to take off the judgment of compulsory nonsuit.

he had performed the said contract, and that the corporation had issued to him the said stock. Mr. Say further testified that the proceeds of the note in question were used by him in paying for said land and in making the improvements thereon. There was no contradiction of this testimony.

"The plaintiff alleged that said arrangement between the defendant and Mr. Say was a mere sham; that Mr. Say was but a conduit, used by the defendant for the pur"It has been ably argued by the counsel pose of getting out its stock as full-paid and for the plaintiff that we committed error in nonassessable. It is not claimed that there making the aforesaid rulings. He has point- is any direct evidence to support this argued out that the note was duly signed by two ment. It is only an inference, and we do officers of the defendant, that it was regular not think it is a fair inference, from the eviupon its face, and that it was purchased by dence. In our opinion, the evidence showed, the plaintiff before maturity and without no- and showed nothing else than, that the detice of any defect; that the proof showed fendant corporation contracted with W. H. that the plaintiff dealt with the officers of the Say for the purchase from him of certain defendant, not as individuals, but as officers lands, with certain improvements which he of the defendant, which was a corporation was to make thereon, and that the moneys created for the purpose of buying and selling advanced upon the note in question were land, and believed that the money advanced used by Mr. Say in purchasing said land and was to be used in the purchase of land, which in making said improvements. If this be true, was in fact afterwards conveyed to the de- it cannot be said that the defendant was the fendant; and that the defendant was in fact real purchaser of said land, or that it receivthe real purchaser of the land in question. ed the benefit of the loan. The benefit, which it appeared from the evidence that the de- will operate to bind a corporation, in such a fendant was organized as a corporation for controversy as this, must be a benefit, direct the purpose of buying and selling land. W. and in a legal sense. It cannot be said that H. Say applied to C. L. Snowden, president the defendant received any direct benefit from of the plaintiff bank, for a loan of $5,000. this loan. The money did not go into its Before Mr. Snowden made the loan, he had treasury. The money was used by Mr. Say been solicited to take some stock in the de- to complete his own contract with the defendant corporation, and had gone to see cer- fendant. Surely this was not a benefit to the tain lands which the defendant afterwards defendant in a legal sense. The plaintiff reacquired. Mr. Snowden gave his check to ceived the note of the defendant, made by Mr. Say for $5,000, and received a note dated Mr. Say, its president, and Mr. Seddon, its June 11, 1905. This note was in the same treasurer, and to the order of the said W. H. form as the note in suit-the latter being a Say. The plaintiff was therefore bound to renewal of the former. Mr. Say deposited inquire what the authority of these officers this money to his own account in his own was to make the note and bind the defendbank. A part of the money he used for the ant corporation. Failing to make the inpurchase of a tract of land from Henry Burk-quiry the plaintiff cannot now hold the deman, and the remainder of the money he fendant liable upon a contract which it never used in paying for certain improvements up-authorized. We think this case is ruled by on this land. Subsequently Mr. Say convey- the principles of the case of Worthington v. ed this land to the defendant corporation. It Railway Co., 195 Pa. 211, 45 Atl. 927. was therefore claimed by the plaintiff that Mr. Snowden understood he was loaning this money to the defendant and that the defendant actually received the benefit of the loan. It appeared from the evidence that Mr. Say had a contract with the defendant, whereby he undertook to convey certain lands to it in consideration that the stock of the corporation was to be issued to him, and that he (Mr. Say) was to expend the sum of $5,000 in the improvement of said land. This contract was not in evidence, but Mr. Say testified to these facts in response to questions by plaintiff's counsel. He also testified that

"And now, to wit, July 8, 1909, after argument and upon consideration, the motion to take off nonsult heretofore granted is refused."

Argued before FELL, BROWN, MESTREZAT, POTTER, ELKIN, and STEWART, JJ.

Samuel McClay and Wm. M. Robinson, for appellant. C. C. Dickey and Pier Dannals, for appellee.

PER CURIAM. The judgment is affirmed, for the reasons stated in the opinion of the learned judge of the common pleas.

(30 R. I. 424) says, "within one year after the entry of sucb MATTESON v. BENJAMIN F. SMITH CO. order, decree, decision or judgment," etc.; et al. and the order, decree, decision, or judgment (Supreme Court of Rhode Island. March 25, here referred to is the order, decree, decision, 1910.) or judgment of the superior court mentioned APPEAL AND Error (§ 357*)—Proceedings—in the beginning of the section. Although, as TIME FOR APPLICATION. this court has said in Hughes v. Rhode IsUnder Gen. Laws 1909, c. 297, § 3, provid-land Company, 27 R. I. 591, 593, 65 Atl. 275, ing that when a person is aggrieved by a decree of the superior court, and from accident, mistake, unforeseen cause, or lack of evidence newly discovered, has failed to appeal, the Supreme Court may within one year from the entry thereof allow an appeal, etc., the year begins to run from the date of the entry of the decree in the superior court.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 1928-1931; Dec. Dig. § 357.*]| On petition for leave to prosecute an appeal under Gen. Laws 1909, c. 297, § 3. Petltion denied and dismissed.

See, also, 30 R. I. 198, 74 Atl. 225.

Peter J. Quinn, Claude J. Farnsworth, and James F. Murphy, for petitioner. Thomas A. Carroll, Philip C. Sheldon, and Walter P. Suesman, for respondents.

BLODGETT, J. The petitioner alleges that she is aggrieved by the decree dismissing the bill, entered in the superior court on the 20th day of January, 1909; that she claimed an appeal from that decree, "but that on account of accident, mistake, and unforeseen cause the transcript of the testimony was not allowed, nor the correctness of the same de termined by petition, according to law, in consequence of which she has been deprived of the opportunity to prosecute her appeal." See 30 R. I. 198, 74 Atl. 225. The case presented, therefore, is not a case where no trial has been had. There has been a full hearing on the merits, but the petitioner has failed to prosecute her appeal.

The statutory provision under which this petition is filed is Gen. Laws 1909, c. 297, § 3, which is as follows: "When any person is aggrieved by any order, decree, decision, or judgment of the superior court, or of any probate court or town council, and from accident, mistake, unforeseen cause, or lack of evidence newly discovered, has failed to claim or prosecute his appeal, or to file or prosecute a bill of exceptions, or motion or petition for a new trial, the Supreme Court, if it appears that justice requires a revision of the case, may, upon petition filed within one year after the entry of such order, decree, decision, or judgment, allow an appeal to be taken and prosecuted, or a bill of exceptions or a motion for a new trial to be filed and prosecuted, upon such terms and conditions as the court may prescribe." This section is a re-enactment of section 473, Court & Practice Act. The obvious and natural meaning of the statute is that the year begins to run from the date of the entry of the decree in the superior court. The statute

276, "the clearness of this section has been sacrificed in an attempt to include in the scope of its provisions very diverse conditions," still it cannot be said that the words of the statute, "within one year after the entry of such order, decree, decision or judgment," mean anything else than the order, decree, decision, or judgment of the superior

court.

As applied to the case at bar, the statute means simply this: When any person is aggrieved by a decree of the superior court, and from accident, mistake, or unforeseen cause has failed to prosecute his appeal, the Supreme Court, if it appears that justice requires a revision of the case, may, upon petition filed within one year after the entry of such decree, allow an appeal to be taken and prosecuted upon such terms and conditions as the court may prescribe. In Horton v. Feinberg, 23 R. I. 190, 49 Atl. 696, the statute under consideration was Gen. Laws 1896, c. 251, § 2, which provided for a new trial in a "suit which shall have been tried or decided in the common pleas division, or in any district court, within one year previous to such application." The court decided that "the petition for a new trial is to be filed within one year after the trial or decision of the case itself, not in one year after the decision of a petition for a new trial. If this last time was to control, one might continue his case indefinitely, by filing a petition for a new trial within one year from the decision upon the preceding petition."

This petition was filed February 16, 1910, and is not within the year as aforesaid, and is accordingly denied and dismissed.

STATE v. HANOS.
SAME v. PROCOPIO.

March 24,

(Supreme Court of Rhode Island.
1910.)
CRIMINAL LAW (§ 1134*)-REVIEW-CONSTI-
TUTIONAL QUESTIONS.

gally taking lobsters from waters of the state
Where complaints in prosecutions for ille-
confined the time within which proof of the
offense charged could be offered to part of the
"close time" within which the taking of lob-
sters is prohibited by Pub. Laws 1909, c. 437,
§ 8, allegations in excess of those necessary to
charge such a violation may be treated as sur-
plusage, and considered as if stricken out, and
constitutional questions arising only upon such
allegations will not be determined by the Su-
preme Court on certificate.

[Ed. Note.-For other cases, see Criminal Law, Dec. Dig. § 1134.*]

For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes 75 A.-44

Case Certified from District Court, First | 2. EVIDENCE (§ 471*)-CERTIFIED COPIES-ADDistrict; Robert M. Franklin, Judge.

Vaselios Hanos and another were convicted of illegally taking lobsters from the waters of the state, and constitutional questions were certified to the Supreme Court. MoAttest"-and who testified that it tion to vacate assignment of the cases for asked whether the copy was a true one. was certified to by the town clerk, might be hearing on such questions granted.

It is not error to refuse a requested charge covered by the charge given.

[Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.*]

10. TRIAL (§ 261*)-INSTRUCTIONS-REFUSAL. A requested charge, which states an incorrect proposition of law, may be refused as asked.

[Ed. Note.-For other cases, see Trial, Cent. Dig. § 671; Dec. Dig. § 261.*]

11. TRIAL ( 194*)-INSTRUCTIONS-ISSUES.

An instruction that there is no evidence of a certain fact, and that consequently the jury cannot consider evidence submitted to prove the fact, is properly refused.

9. TRIAL (8 260*)-INSTRUCTIONS REFUSAL | Sheldon, town treasurer of said town of OF INSTRUCTIONS COVERED BY THE CHARGE Warwick, for personal injuries claimed to GIVEN. have been suffered by the plaintiff by reason of a defect or want of repair in a certain public highway known as Main street, in Arctic Centre, in the town of Warwick, on the 6th day of October, 1906. The declaration alleges that Main street is a public highway of the town of Warwick, and that said town on, to wit, the 6th day of October, 1906, and for a long time prior thereto, failed and neglected to keep said Main street in repair and amended so as to be safe and convenient for travel thereon, but, on the contrary, suffered and permitted said Main street in the portion thereof commonly used for foot travelers, and at a point in said Main street about 50 feet north from the intersection of Curson street with said Main street, on the westerly side of said Main street, in front of property owned by Annie Curson and occupied by M. D. Rinfret, as a millinery store, to be and remain in an unsafe and dangerous condition, in this, that said highway at the point aforesaid had, prior to that date, been dug up and a trench about three feet wide and several feet deep was excavated therein for the purpose of, to wit, laying water supply pipes, or pipe or materials of some kind for some purpose, in said highway under the surface thereof, which said excavation had

[Ed. Note.-For other cases, see Trial, Cent. Dig. 450; Dec. Dig. § 194.*]

12. TRIAL (§ 194*)-INSTRUCTIONS-ISSUES.

An instruction that there is no evidence to establish a fact is properly refused, for whether there is or is not evidence to establish the fact is within the knowledge of the jury on which it is not necessary to inform them.

[Ed. Note. For other cases, see Trial, Cent. Dig. § 450; Dec. Dig. § 194.*]

13. HIGHWAYS (§ 187*)-INJURIES TO TRAVELERS-IMMATERIAL ISSUES.

Where an injury to a traveler on a defective highway occurred within the limits of the highway, the width of the highway was immaterial.

[Ed. Note.-For other cases, see Highways, Dec. Dig. § 187.*]

14. HIGHWAYS (§ 211*)—INJURIES TO TRAVEL-been refilled in an improper, careless, and

ERS EVIDENCE.

In determining whether the part of a street in which a traveler was injured was a part of the highway, the jury could not consider opinions of witnesses; but the facts must be shown

that it was a part of the highway.

[Ed. Note. For other cases, see Highways, Dec. Dig. § 211.*]

- FAILURE TO

15. TRIAL (§ 105*)-EVIDENCE
OBJECT TO.
Evidence received without objection may
properly be considered by the jury.
[Ed. Note. For other cases, see Trial, Cent.
Dig. § 261; Dec. Dig. § 105.*]
16. HIGHWAYS (§ 211*) - DEFECTIVE HIGH-
WAYS-INJURIES TO TRAVELERS EVIDENCE.
In an action for injuries to a traveler on
a defective highway, evidence held to establish
the defect.

[Ed. Note. For other cases, see Highways, Dec. Dig. § 211.*]

Exceptions from Superior Court, Kent County; George T. Brown, Judge.

Action by Elizabeth Perry against George E. Sheldon, Town Treasurer of the Town of Warwick. There was a verdict for plaintiff, and defendant brings exceptions. Overruled, and cause remitted, with directions to enter judgment upon the verdict.

M. L. Lizotte and P. H. Quinn, for plaintiff. Lester T. Murphy and Waterman, Curran & Hunt, for defendant.

JOHNSON, J. This is an action of trespass on the case for negligence brought by Elizabeth Perry, of the town of Warwick, in the county of Kent, against George E.

And

defective manner, so that the earth and other
filling in said excavation was loose, soft, and
insufficiently tamped to sustain and support
the weight of said plaintiff, although upon
the surface of said refilled portion of the
street there was nothing to indicate said
loose, soft, and untamped condition.
the plaintiff avers that on, to wit, said 6th
day of October, while she was in the proper
and careful use of said Main street, was,
to wit, walking thereon, she stepped upon
and into said imperfectly filled portion there-
of and immediately sank into and through
the soft substance or earth with which said
excavation had been filled, and by reason
thereof the plaintiff was thrown to the ground
and injured. The case was tried in the su-
perior court in Kent county, and on the 10th
day of February, 1909, the jury returned a
verdict in favor of the plaintiff for $3,580.

The defendant filed a motion for a new

trial on the grounds: First, that the verdict is contrary to the evidence and the weight thereof. Second, that said verdict is contrary to law. Third, that the amount of damages awarded by said verdict is excessive. Fourth, that since the trial in said cause the defendant has discovered new and material evidence, etc. No affidavit as to new evidence was filed. The motion for a new trial was heard by the superior court, and on March 5, 1909, was denied. March 8, 1909, the defendant excepted to the denial of said motion for a new trial, and filed notice

For other cases see same topic and section NUMBER in Dec. & Am. Digs. 1907 to date, & Reporter Indexes

of its intention to prosecute a bill of excep- | figures?" This question was allowed, and tions. The case is now before us on defend- exception was taken. A surveyor was being ant's bill of exceptions: (1) To certain rul-examined as to the highway in question and ings of the justice presiding at the trial admitting certain evidence, as shown on pages 120, 154, 206, and 320 of the transcript of testimony. (2) To the decision of said justice denying defendant's motion for the direction of a verdict for the defendant, as shown on pages 344, 345, and 346 of the transcript of | testimony. (3) To the refusal of said justice to charge the jury as requested by the defendant, as shown on pages 363, 364, 365, and 366 of the transcript of testimony. (4) To the decision of said court denying the defendant's motion for a new trial.

as to how it compared with the lay-out of the highway from Centreville to the Green Manufacturing Company made in 1822, and had testified that he had made certain measurements on said plat, and as to the measurements made in fixing certain points upon the highway, and had been questioned as to the measurements on the plat of said lay-out. The question was properly allowed. It was proper to allow him to testify how the measurements of the ground held out with reference to the figures on the plat.

As to the fourth exception to the admission of testimony (page 320 of the transcript), the question objected to was: "If you know of any reason why that should not be adopted as the easterly boundary of that lane, please state it." The surveyor had testified to the location of the fence, as he found it, upon the easterly side of a certain lane shown on the "Barnes Plat," but had said, "I don't say it was on the easterly edge of the lane." He had then been asked: "It is on the easterly edge of what was apparently used as the lane?" And had answered: "I agree with you now." The question to which the ob

Considering the exceptions designated (1) in the bill of exceptions, to the admission of testimony: As to the first exception to the admission of testimony (page 120 of the transcript), the question to which objection was made, was: "As highway commissioner, what were your duties?" To this question no answer was given. After the objection, the following question was asked: "What were you supposed to do on the highways?" The transcript then proceeds: "The Court: What is the objection? Mr. Cosgrove: I don't think it is the best evidence. The Court: If he was highway commissioner of the town of War-jection was made was then put. The ques wick, it may be supposed he knew what his duties were. If you have any ordinance that defines his duties you may produce it. Have you an ordinance that defines the duties? Mr. Cosgrove: I don't think, may it please the court, we are called upon to prove the plaintiff's case. The Court: You may answer the question. (Exception taken by Mr. Cosgrove.)" The following question was then asked: "What were you supposed to do as highway commissioner, working for the town?" We think the exception is without merit. It was proper to ask the witness what his duties were as highway commissioner, and no exception was taken to the form of the question as finally asked and answered.

As to the second exception to the admission of testimony (page 154 of the transcript), the question excepted to was: "I show you a certified copy of a plat signed by James T. Lockwood, town clerk, having the seal of the town of Warwick and with the words thereon: Warwick, Town Clerk's Office. February 3, 1909. A true copy. Attest'-and ask you if that is a true copy that you have just testified to as being certified to by the town clerk?" To this question Mr. Cosgrove objected, saying: "I object to that. This paper does not purport to be the official act of the town of Warwick. The Court: So far as it goes, it may be admitted." This ruling was excepted to by Mr. Cosgrove. This ruling was clearly correct.

As to the third exception to the admission of testimony (page 206), the question was, "And how did the physical measurements,

|

tion was properly allowed. The witness had testified as to the location of the lane in question upon the plat, and as to the location of the fence, as he found it, upon the easterly side of the lane. It was entirely proper to allow him to testify as to how the location of the fence as he found it compared with the lines as shown upon the plat.

The exception designated (2) in the bill of exceptions, to the decision of the court denying defendant's motion for the direction of a verdict for the defendant, was waived by the filing by the defendant of a motion for a new trial on the ground that the verdict was against the evidence. Barstow v. Turner, 29 R. I. 100, 69 Atl. 340.

The exception designated (3) in the bill of exceptions is to the refusal of the trial justice to charge the jury as shown on pages 363, 364, 365, and 366 of the transcript. The requests refused were:

"First. To enable the plaintiff to recover the jury must find from the evidence that the plaintiff received the injuries complained of by reason of a defect or want of repair in a certain public highway known as Main street in Arctic Centre in the town of Warwick at a point about 50 feet going north from Curson street, a public highway in said Arctic Centre on the westerly side of Main street in front of the property owned by Annie Curson and occupied by Mrs. M. D. Rinfret as a millinery store in said Arctic Centre."

The justice had already charged the jury upon the question as to the direction of the place of the accident from Curson street as given in the notice to the town, and had