1. GUARDIAN AND WARD-ACTION ON BEHALF OF WARD.

An action on behalf of an adult who is under guardianship must be commenced in the name of the ward by the guardian.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 25, Guardian and Ward, § 434.] 2. ACTION-CONDITION PRECEDENT-CRIMINAL PROSECUTION.

By the express provisions of Gen. Laws 1896, c. 233, § 16, a criminal prosecution was a condition precedent to an action for damages arising from any act constituting a crime.

Exceptions from Superior Court.

Action by Hope T. Williams by James N. Smith, her guardian, against Clarence A. Smith. Heard on exceptions of defendant after denial of a petition for a new trial. Case remanded to the superior court, with directions to enter judgment for defendant.

Argued before DOUGLAS, C. J., and DUBOIS, BLODGETT, JOHNSON, and PARKHURST, JJ.

Irving Champlin and James Harris, for plaintiff. Marquis D. L. Mowry and Louis L. Angell, for defendant.

PER CURIAM. There is no ground on which the jury could have found for the plaintiff upon the evidence in this case, except that the defendant embezzled the money of the plaintiff. It must have been found either that the defendant was party to a scheme by which the plaintiff was induced to sign orders in his favor, intending to appropriate the proceeds to his own use, or that, being intrusted as her agent to procure money from various banks and deliver the same to her, he feloniously appropriated the

same.

The statute in force at the time the cause of action accrued (Gen. Laws 1896, c. 233, § 16) required a criminal prosecution to be commenced in such a case before a civil action could be brought; and, as no such criminal complaint preceded the commencement of this action, the verdict cannot stand. As the case may be brought again after criminal complaint is made, we may say that the commencement of the writ and of the declaration are in proper form, as held in Hamilton v. Colwell, 10 R. I. 39.

The other exceptions need not be consider

ed, as they apply only to procedure in the present case.

The case is remanded to the superior court, with direction to enter judgment for the defendant as of nonsuit.

(28 R. I. 164)

KENYON et al. v. FIDLER. (Supreme Court of Rhode Island. Feb. 1, 1907.) LANDLORD AND TENANT-RECOVERY OF POSSESSION- ACTIONS - DECLARATION-VARI

ANCE.

A declaration, in trespass and ejectment. to recover a tenement held by defendant as tenant at will, alleged ouster on April 27th, but the evidence showed that notice was given to quit on that date, which made defendant a trespasser on the following day. Held, that the variance was material.

Exceptions from Superior Court. Providence County.

Action by Lydia L. Kenyon and others against Jennie L. Fidler A verdict was directed for plaintiffs, and defendant brings exceptions. Reversed and remanded.

Argued before DOUGLAS, C. J., and DUBOIS, BLODGETT, JOHNSON, and PARKHURST, JJ.

Walter B. Dixon and Benj. W. Grim, for plaintiff. John W. Sweeney, for defendants.

PER CURIAM. This is an action of trespass and ejectment for the recovery of a tenement held by the defendant as tenant at will of the plaintiffs. Due notice was given to quit the tenement on April 27, 1906, and the defendant therefore became a trespasser on April 28th. The declaration in each of three counts alleges the ouster on the 27th. The defendant, relying upon the variance, submitted no evidence, and the court directed a verdict for the plaintiffs.

We think the correct rule of pleading in such case is laid down in 7 Ency. Pl. & Prac. 337, where it is said: "The exact date of the occurrence of such ouster need not be stated, provided it be laid subsequent to the accrual of the plaintiff's title and before the commencement of the suit." In this case on the 27th the plaintiffs' right to possession had not accrued, inasmuch as the notice had not expired until the day was finished, and the case as set forth was not proven.

The cause is remanded to the superior court for a new trial, and the plaintiffs will be permitted to amend the declaration by substituting the 28th day of April, 1906, for the 27th, in each count.

(28 R. I. 157)

HARTLEY v. RHODE ISLAND CO. (Supreme Court of Rhode Island. Feb. 6, 1907.) EXCEPTIONS, BILL OF ALLOWANCE-TIME.

Court & Practice Act 1905. § 494, declares that. if the justice who presided at the trial shall, for 20 days after a bill of exception has been filed, fail to act on or return the same, or shall disallow, alter, or refuse to allow the same, and either party is aggrieved thereby, the

truth of the exceptions may be established before the Supreme Court on petition filed within 30 days after filing of the bill of exceptions in the superior court, etc. Held, that such section should be strictly construed, and that, where a bill was not allowed by the presiding justice within 20 days after it had been filed in the clerk's office, he had no further jurisdiction over the same, and, in the absence of a petition to establish the truth thereof in the Supreme Court within 30 days, the bill became functus officio. [Ed. Note.-For cases in point, see Cent. Dig. vol. 21. Exceptions, Bill of, § 91.]

Exceptions from Superior Court, Providence County.

Action by Gertrude Hartley against the Rhode Island Company for negligence. On motion to dismiss defendant's bill of exceptions. Granted.

Argued before DOUGLAS, C. J., and DUBOIS, BLODGETT, JOHNSON, and PARKHURST, JJ.

John W. Hogan and Philip S. Knauer, for plaintiff. Henry W. Hayes and Frank T. Easton, for defendant.

DOUGLAS, C. J. This is a motion to dismiss a bill of exceptions presented to this court, on the ground that the bill and transcript have never been duly allowed, nor the truth of the exceptions duly established; the bill having been filed in the superior court September 24, 1906, and signed by the Judge November 10, 1906.

The privilege of review by a bill of exceptions is given by Court & Practice Act 1905, §§ 490 to 497, and, as we said of petitions for new trials, in Haggelund v. Oakdale Mfg. Co., 26 R. I. 520, 523, 60 Atl. 106, is contingent upon a diligent observance of the conditions imposed. The following are the provisions of the court and practice act on this subject:

"Sec. 492. The clerk, immediately upon the filing of a bill of exceptions, shall present the same, with the transcript, if any, to the justice who presided at the trial; and if upon examination thereof, after hearing the parties, he shall find the exceptions, evidence, rulings, instruction, and findings correctly stated, he shall allow them. In all cases the exceptions and transcript shall be restored by the justice to the files of the clerk, with a certificate, signed by him, of his action there

on.

"Sec. 493. Upon a bill of exceptions being allowed and restored to the files, the clerk of the superior court shall forthwith certify and transmit the papers in the cause to the Iclerk of the Supreme Court.

"Sec. 494. If the justice who presided at the trial shall, for a period of twenty days after a bill of exceptions has been filed, fail to act upon or return the same, or shall disallow, alter, or refuse to alter the same, and either party is aggrieved thereby, the truth of the exceptions may be established before the supreme court upon petition stating the facts, filed within thirty days after the filing of the bill of exceptions in the superior court;

and thereupon the truth of the exceptions being established in such manner as the court shall by rule prescribe, they shall be heard and the same proceedings taken as if the exceptions had been duly allowed and filed. And upon such petition being filed, the supreme court may order the clerk of the superior court to certify and transmit to the clerk of the supreme court the papers in the cause."

The statute thus gives the justice who presided at the trial 20 days within which to consider and act upon the exceptions. If his action within that time aggrieves either party, such party, within 30 days from the time the bill was filed, may apply by petition to this court to establish the exceptions as he conceives the truth to be. If the justice neglects to act at all within the 20 days, the party who is aggrieved by his inaction may apply to this court within the 30 days. The manifest intent of the act is to deprive the justice who presided at the trial of any jurisdiction in the matter after the expiration of the 20 days. While the act does not specifically declare this, it confers upon the parties rights which are inconsistent with an extension of the power of the justice beyond the 20 days. If the power to sign exceptions may be exercised beyond the 20 days, it may be exercised beyond the 30 days, and so the act or neglect to act would become final, and the parties, though aggrieved, would be precluded from any remedy by petition to this court. The two provisions must be read together, and, if so, the obvious limitation of time must be set to the jurisdiction of the superior court justice.

The counsel for defendant asks us to read into the statute the word "willfully" before neglect; but, if we could thus amend the law, it would remove the objection only in one contingency. As urged by plaintiff's counsel: If the superior court could hold a bill of exceptions beyond 20 days and validly allow it, then it could hold one beyond 20 days and validly disallow or alter it. If held beyond 30 days and altered or disallowed, the excepting party would have no remedy; if held beyond 30 days and allowed against the objection of the opposing party whose requested alterations were refused, then such opposing party would have no remedy. The construction which we place upon this statute is the only one consistent with its apparent plan and purpose. Stringent directions precede the sections quoted for giving notice of intention and filing the bill of exceptions. Definite periods of time are limited for the process, in which the only delay allowed is on account of the necessity of procuring the transcript of evidence. After the bill is filed, the clerk must act immediately. The justice must decide within 20 days, and application to this court, as a last resort, must be made within 30 days. The whole arrangement is designed to promote diligence, and the alternative to compli

ance is inevitably a loss of the right to prosecute the exceptions.

A strict construction of statutes relating to bills of exceptions everywhere prevails. After a litigant has had his day in a court of general jurisdiction, with all the presumptions which exist in favor of the decision of a Jury instructed by an educated and experienced judge, if he desires a review of the case in an appellate court, he must apply for It in the time and manner prescribed by the statutes.

As the defendant's bill of exceptions in this case was not allowed by the justice who presided at the trial within 20 days after it was filed in the clerk's office, and as no petition to establish the truth of the exceptions was filed in this court within 30 days after the bill was filed in the clerk's office, we cannot entertain it, and it must be dismissed, and the cause remanded to the superior court for judgment on the verdict.

(28 R. I. 152)

BAKER v. TYLER.

(Supreme Court of Rhode Island. Feb. 1, 1907.) EXCEPTIONS, BILL OF TIME FOR FILING-EXTENSION.

Court & Practice Act 1905, § 473, provides that, when any person is aggrieved by any order or judgment of the superior court, and from accident, mistake, or unforeseen cause has failed to prosecute a bill of exceptions, etc., the Supreme Court may, on petition, allow an appeal, etc. Section 490 provides that any person who has taken exceptions in the superior court may prosecute a bill of exceptions by pursuing the procedure pointed out. By the first paragraph, the party is required to file a notice of intention to prosecute a bill of exceptions, together with a request to the stenographer for a transcript of the testimony. The second paragraph provides that. within such time as the court shall fix, not later than 50 days after filing the notice of intention to prosecute a bill of exceptions, or within 10 days after the expiration of such extended time as is provided by section 72 for filing a transcript of the evidence, he shall file his bill of exceptions. Section 71 provides, in relation to stenographers, that the stenographer shall make a transcript on written request filed with the clerk by either party, and when completed, and within the time limited by the court for filing the same, but not later than 40 days from the request, except as provided in section 72, shall immediately deliver the same. By section 72, the superior court is given authority to grant an extension of the time of filing a transcript beyond the 50-day period. Held, that where the application of a party was duly made to the court. but the court, instead of fixing the time for filing the bill of exceptions and the transcript of the evidence, or extending the time for filing the transcript, filled out an order to the stenographer to deliver the transcript on a certain day, on petition after the expiration of 50 days from the notice of intention, the Supreme Court, under section 473, would order the judgment set aside and grant the aggrieved party time within which to file his bill of exceptions.

Action by John B. Baker against Thomas D. Tyler. Petition by defendant for relief after judgment. Relief granted.

Argued before DOUGLAS, C. J., and DUBOIS, BLODGETT, JOHNSON, and PARKHURST, JJ.

66 A.-5

Irving Champlin, for plaintiff. Edward M. Sullivan, for defendant.

July

DOUGLAS, C. J. The following facts ap pear from the record in this case: June 5, 1906, the plaintiff recovered a verdict in the superior court against the defendant for $500. June 11th the defendant moved for a new trial, which was denied July 2d. 7th the defendant filed a notice of his intention to prosecute his bill of exceptions and a motion to the court to fix the time wherein he should file his bill of exceptions, transcript of evidence, etc., and a request for a transcript of the evidence. At the foot of the notice and motion, which were upon a printed form, is the following order; the words and figures italicized being in the hand writing of the justice of the superior court who presided at the trial: "Transcript of evidence, etc., to be made and delivered by stenographer to party ordering same or his attorney of record on or before Sept. 29, A. D. 1906. Bill of exceptions and transcript of evidence, etc., to be filed in the clerk's office on or before A. D. 190-. W.

B. Tanner, Justice of Superior Court." October 17th the plaintiff moved that the judgment of the superior court be entered upon said verdict, and December 16th said motion was heard and judgment entered as of June 5th. On October 29th the defendant filed his alleged bill of exceptions to the decision of Judge Tanner denying the defendant's motion for a new trial, but this bill was never allow ed by the superior court or established in this court. On December 17th the defendant filed his exception to the entry of judgment and his notice of intention to prosecute his bill of exceptions, and on the same day he filed in the superior court a paper, in the form of a bill of exceptions, and allowed as such by the justice who ordered the entry of judgment, setting forth the travel of the case, and claiming that the judgment was erroneously entered.

It should be remarked, in the first place, that a bill of exceptions does not lie to a judgment of the superior court. The review of the decision or verdict on exceptions thereto, provided by the statutes, is to be had before judgment is entered. The filing of notice of a bill of exceptions stays the judg ment or sentence until further order of the court. It is too late to give such notice after judgment is entered or sentence is pronounced. But the case stated is one of a judgment entered erroneously, or which, if duly entered, was the consequence of the failure of the party aggrieved by the verdict to file his bill of exceptions from omission of the court to fix the time within which he should file it, and so we may treat the application as one for relief under Court & Practice Act 1905, § 473. The general procedure of a party, who, after an adverse verdict and an adverse decision of the superior court upon his motion for a new trial,

desires to prosecute a bill of exceptions in this court, is prescribed by Court & Prac tice Act 1905, § 490, which refers also to the provisions of sections 71 and 72. The first paragraph of section 490 needs no construction. It prescribes two plain steps: first, to file notice of intention to prosecute exceptions; and, secondly, to take means to procure a transcript of evidence in cases where that is necessary. The second paragraph provides as follows: "Second. Within such time as the court shall fix, not later than fifty days after filing notice of intention to prosecute a bill of exceptions, or within ten days after the expiration of such extended time as is provided by section 72 for filing a transcript of the evidence, he shall file in the office of the clerk of the superior court his bill of exceptions. * * If exceptions shall be founded upon evidence and rulings thereon, or upon findings or decision of the court, or to the instructions of the court to the jury, or to a decision upon a motion for a new trial on the ground that the verdict is against the evidence or the weight of evidence or for newly discovered evidence, he shall file in the office of the clerk, with his bill of exceptions, a transcript of the evidence and the rulings thereon, and of the instructions to the jury, or so much thereof as may be necessary for determination of the exceptions."

*

To analyze the process, it is this: First, the party files in the clerk's office his notice and motion and request for the transcript of evidence. Sections 71 and 490. Next, the court in answer to his motion fixes a time, not more than 50 days in the future, at which the party must file in the clerk's office his bill and transcript. Section 490. By section 71 it is made the duty of the stenographer to deliver the transcript to the party or his attorney within the time fixed for the party to file it, but in no case later than 40 days from the filing of the request. No act of the court is required to direct the stenographer. The statute defines his duty when the court has fixed the time within which the party must act. This is the ordinary and normal course of procedure contemplated by the statute, and there is no provision in any case by which the court can directly extend the time for filing the bill of exceptions beyond 50 days from the date of the notice. It may, however, often be impossible to procure the transcript for filing within the 50 days or the period fixed, and section 72 is designed to remedy this difficulty. It gives the court the power, for cause, to grant an extension of time for filing the transcript beyond the time originally fixed.

When an extension of time for filing the transcript is given, the statute again, without action by the court, fixes the time for filing the bill of exceptions within 10 days from the expiration of the extended time to file the transcript. In the case at bar, the application of the party was duly made to the court, and thereupon the court, instead of

fixing the time for filing the bill of exceptions and the transcript of evidence, or extending the time for filing the transcript, which would have automatically fixed the time for filing the bill of exceptions, filled out an order to stenographer to deliver the transcript to the party at a certain day. This order is not the order required by the statute, and is not a performance of the duty which the statute imposes upon the court. The time within which the defendant may file his bill of exceptions has never been fixed, and, as more than 50 days have elapsed since his notice, it cannot now be fixed by the superior court.

It is urged on behalf of the plaintiff that the statute imposes upon the moving party, in this case the defendant, the duty not only of filing his notice and motion, but also of seeing that the motion is granted. We think he is charged with the responsibility of calling his motion to the attention of the court, but we do not see how he can force the court to act. In this case the justice took the matter into his own nands after it was presented to him, and himself filled the blanks in the form. Doubtless by inadvertence he filled in the unnecessary order and neglected to fill the one required by the statute. It may have been carelessness on the part of defendant's counsel not to have discovered the error; but the mistake was originally the act of the court, and the printed form, furnished by the clerk's office, was itself misleading.

In view of all the circumstances, we think the case is one which justice demands should be reviewed, and it is therefore ordered that the judgment entered December 16, 1906, be set aside, on condition that the defendant, within 10 days, shall file his bill of exceptions and transcript of evidence, etc., in the clerk's office of the superior court, give due notice thereof as prescribed by rule 32, and prosecute his exceptions according to law.

(28 R. I. 160) STATE v. SHEEHAN. (Supreme Court of Rhode Island. Feb. 13, 1907.)

1. FISI-STATUTORY PROVISIONS-LOBSTERS. Const. art. 1. § 10, provides that in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury, shall be confronted with the witnesses against him, and shall have compulsory process for obtaining witnesses. Section 14 provides that every man shall be presumed innocent until pronounced guilty by law. Held, that Pub. Laws 1902, p. 36, c. 969, providing for the punishment of persons having short lobsters in their possession, and that the possession of any such lobster shall be prima facie evidence to convict. is not in conflict with those sections of the Constitution.

2. INDICTMENT AND INFORMATION-COMPLAINT -MOTION TO DISMISS-TIME.

A motion to dismiss a criminal complaint, on the ground that complainant has not given security for costs, and was not an officer authorized by law to bring such complaint, comes

An exception in a criminal prosecution to the charge as a whole cannot be considered on appeal.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 15, Criminal Law, § 2671.]

Appeal from Superior Court.

Patrick Sheehan was convicted of having short lobsters in his possession, and appeals. Affirmed.

Argued before DOUGLAS, C. J., and DUBOIS, BLODGETT, JOHNSON, and PARKHURST, JJ.

Clark Burdick, for appellant. James C. Collins, Jr., Asst. Atty. Gen., for the State.

DOUGLAS, C. J. This is a complaint charging the defendant with having had in his possession 75 short lobsters, in violation of Pub. Laws 1902, p. 36, c. 969. After being found guilty in the district court, on his plea of not guilty, the defendant appealed to the superior court, where the jury found him guilty of having had 60 short lobsters in his possession. Before sentence he moved to dismiss the complaint, on the ground that the provisions of chapter 969 are void, being contrary to article 1, §§ 10, 14, of the Constitution of Rhode Island. During the progress of the trial several exceptions were taken, which are now brought to this court in a bill of exceptions. The constitutional question and the bill of exceptions were tried together, and are now before us for consideration.

The constitutional question is not stated with sufficient definiteness to enable us to ascertain what specific objection to the stattue is intended to be relied upon. We find nothing in the sections mentioned which can be supposed to be violated by the provisions of the statute. The argument in support of this motion was addressed to the clause of the law which provides: "The possession of any such lobster, cooked or uncooked, not of the prescribed length shall be prima facie evidence to convict." As the offense charged in this case was having in possession, it could be no infringement of the defendant's constitutional rights to enact that proof of the fact should be prima facie proof of the offense. If the clause has any

effect in a case like this one, it is only to emphasize the right of the defendant to introduce evidence to show that his posses. sion was not with guilty knowledge, as he was admitted to do at the trial before the jury. We cannot see that any constitutional question properly arises in this case.

The first exception is that a witness was allowed to testify to facts, which are matters of public record, without producing such record. The transcript shows that this objection was expressly waived by the defendant, rather than submit to an adjournment, that the record might be produced.

The second exception is taken to the refusal of the presiding justice to dismiss the complaint, on the ground that the complainant had not given surety for costs, and was not an officer authorized by law to bring such complaint without giving surety. The motion to dismiss, grounded on the objection to the complainant's official status came too late. It should have been made before the defendant had pleaded in bar to the complaint. State v. McCarty, 4 R. I. 82.

The third exception is to the refusal of the court to the offer of the defendant to prove that lobsters which he had had in his possession on previous occasions were of lawful size. This evidence was obviously incompetent.

The fourth exception is to the refusal of the court to charge the jury that: "The possession of short lobsters is only prima facie evidence of guilt. The defendant can explain the possession, and if he did not know he had short lobsters in his possession, he is not guilty." The court had already allowed the defendant to introduce evidence explaining his possession of the lobsters in question, and had charged the jury to the effect that if the defendant, knowing that he had lobsters in his possession, and having full opportunity to examine them, neglected to inform himself that they were under legal size, he might be found guilty of the offense charged. We think this instruction correctly stated the law as applicable to the case, and the request was properly refused.

The last exception was taken to the charge as a whole, and, as we have repeatedly held, cannot be considered. The exceptions are overruled, and the cause is remanded to the superior court for sentence.

(28 R. I. 145)

WILLIAMS v. STARKWEATHER. (Supreme Court of Rhode Island. Jan. 23, 1907.)

1. EXECUTORS AND ADMINISTRATORS-LIABILITY ON BONDS.

Gen. Laws 1896, c. 218, § 27, provides that if any executor or administrator neglect or refuse to raise money out of the estate, or shall refuse to pay over what he has in his hands to the creditors of the testator or intestate whose claims have been presented and allowed or proved according to law, and, if cited before the probate court, shall fail to show reasonable