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after the vote of March 8, 1900, the plaintiff did not make new loans or discount any new paper, nothing except renewals, and that said complainant bank is still in process of liquidation.

The purpose and object of the stockholders of the complainant in passing the vote of March 8, 1900, viewed in the light of subsequent events, was to wind up its business for the purpose of selling out to the Industrial Trust Company, as was afterwards done. For the convenience of the Industrial Trust Company, Pawtucket Branch, which had become the holder of all the shares of stock of the First National Bank of Pawtucket, its own business, and the winding-up business of the latter corporation, was conducted in Pawtucket, in the rooms and by the officers of the former. In other words, the winding-up business of the complainant was controlled and directed by the Industrial Trust Company, Pawtucket Branch.

On the 24th day of April, 1900, the time of the maturity of the $17,000 note, dated October 24, 1899, Mr. Olney Arnold, treasurer of the Cumberland Mills Company and president of the First National Bank, informed Mr. Park, the cashier of the First National Bank and manager of the Industrial Trust Company, Pawtucket Branch, that he wished to renew that note. In consequence of that request Mr. Park directed the discount clerk to renew it. This was accomplished in the manner following: On the 26th of April, 1900, Mr. Arnold carried into the bank the note for $17,000 at four months, dated April 24, 1900, and a check drawn by the Cumberland Mills on the Pawtucket Branch of Industrial Trust Company, for $17,000, to the order of note, and handed them to the cashier, who handed them to the discount clerk, directing him generally to make the proper entries for renewal. Mr. Arnold received the note maturing April 24, 1900, stamped "Paid." The entries were as follows: On the cash book of the First National Bank cash was charged, note of the Cumberland Mills Company paid, $17,000; interest received, discount, note Cumberland Mills Company, $288.07; and cash was credited with the note of the Cumberland Mills Company discounted, $17,000. On the books of Industrial Trust Company entries were made showing the following procedure: The check was deposited to the credit of First National Bank, and charged against the account of Cumberland Mills. At the same time a "debit slip" for $16,711.93, the difference between the face of the new note and the discount, was lodged with the trust company, and the amount of this "debit slip" credited to the deposit account of the Cumberland Mills and charged against the deposit account of the First National Bank. The office of the First National Bank was in the banking rooms of Industrial Trust Company, the cashier of the First National Bank was the manager of the Pawtucket branch of the trust company, and the result

of the transaction was to decrease the deposit account of Cumberland Mills and increase the deposit account of the First National Bank by the sum of $288.07, the amount of the discount or interest on the note. July 5, 1900, the time of maturity of the $13,000 note, dated January 5, 1900, Mr. Arnold again informed the cashier of the First National Bank that it was necessary to renew that note, and at the same time handed him a new note for $13,000, dated July 5, 1900, and a check drawn by the Cumberland Mills Company on Industrial Trust Company, Pawtucket Branch, to the order of note, for $13,000. The check and note were handed by the cashier to the discount clerk, who was instructed to make the proper entries for the renewal of the $13,000 note maturing that day. The same course was taken with respect to that note as had been taken with respect to the $17,000 note which matured the 24th day of the preceding April. No cash passed as a part of these transactions. Amounts equal to the interest on the note were transferred from the deposit account of the Cumberland Mills with Industrial Trust Company to the deposit account of First National Bank with Industrial Trust Company. On March 19, 1902, George L. Littlefield died, leaving a will whereof the defendants qualified as executors, and on September 17, 1902, within six months from the date of the first advertisement by the respondents of the notice of their qualification, the complainant filed in the office of the probate clerk of Pawtucket a statement of its claim against the estate of George L. Littlefield, and the claim was disallowed. Prior to the filing of the bill of complaint the complainant recovered judgment against the Cumberland Mills Company, in an action founded upon the $17,000 note of April 24, 1900, and the $13,000 note of July 5, 1900, whereon execution was returned unsatisfied. After the filing of the bill of complaint the complainant received from the assignee of the Cumberland Mills Company $14,264.55 on account of the judgment.

The complainant claims that the question of liability resolves itself into the question whether or not the transactions of April 24 and July 5, 1900, under the circumstances, amounted to a payment of the notes maturing on those days, respectively, and the creation of a new indebtedness of the Cumberland Mills Company, or amounted to a renewal and continuance of an existing indebtedness; that, if the indebtedness evidenced by the notes was an indebtedness created on the day of the dates of those notes, it was created after the Cumberland Mills Company had filed a statutory certificate which would relieve its stockholders from liability; that if, on the other hand, the indebtedness evidenced by the notes was but a continuance of the indebtedness evidenced by the notes in renewal of which they were given, respective ly, then the indebtedness so represented by

the notes was an indebtedness which was in existence February 15, 1900, and for which the stockholders are liable-and argues, first, that the transactions of April 24 and July 5, 1900, did not extinguish the then existing indebtedness of the Cumberland Mills, but simply continued it, and that the question is: "What did the parties intend?"

The con.plainant admits that the transactions in the case at bar were in effect the same as those set forth in reference to notes held by certain banks mentioned in Merriman v. Social Mfg. Co., 12 R. I. 175, 180; that it was practically the surrender of the maturing note marked "Paid" upon the receipt of a check, the discounting of a new note, and crediting the proceeds of the discount to the holder on the books of the bank; that the additional entries in this case were necessitated by the fact that the complainant bank was in liquidation, and not transacting a banking business, and that the debtors, as well as the complainant, were depositors in another banking institution, and claims that the facts in the case at bar differ from the facts stated in Merriman v. Social Mfg. Co., supra, in two important particulars: (1) In this case the intention of the parties was clearly and definitely expressed by the declarations of the treasurer of the Cumberland Mills, at the times when the new notes were given, that they were given in renewal of the maturing notes. (2) The representatives of both parties to the transactions were fully aware that the bank had ceased to transact a banking business and was no longer in position to loan money. And the complainant argues, secondly, that the action of the cashier and the discount clerk, in so far as they attempted, if they did, to extinguish the existing indebtedness by accepting the new note and the check, was ultra vires and the debtor corporation, through the knowledge of its treasurer, is charged with notice to that effect; that the transactions of April and July, 1900, were after the complainant had gone into liquidation; that, when the bank went into liquidation, its business ceased; that after that there was no authority on the part of the officers of the bank to transact any business in the name of the bank so as to bind its shareholders, unless such authority had been expressly conferred by the shareholders; that no such express authority appears in this case, and that the power of the cashier or other officer of the bank to bind it by transactions after it was put into liquidation is that which results by implication from the duty to wind up and close its affairs, and that duty consists of the collection and reduction into money of the assets of the bank and the payment to the creditors equally and ratably, so far as the assets prove sufficient; that the acts of a cashier transcending his authority are not binding upon the institution in favor of one who has notice.

The question in the first proposition submitted by the complainant's argument— "What did the parties intend?"-would be more nearly correct if it should read: "Who were the parties, and what did they intend?"

The force of the argument in support of the second proposition must be conceded in every case to which it is applicable, but it is not applicable in this case of a solvent corporation whose business is being wound up at the will and pleasure and for the benefit of a trust company which is its sole stockholder, owner of its assets, and its successor in business. The fact that the Industrial Trust Company, Pawtucket Branch, did not take over the Cumberland Mills notes of October 24, 1899, and January 5, 1900, is of no consequence; the taking over being mere matter of detail that could be attended to at any time. The notes in question equitably were its property. If they were paid to the First National Bank of Pawtucket, the proceeds would inure to the benefit of the shareholder of the bank, the Industrial Trust Company, and, if they were to be renewed, it could only be done, as it was done, with the knowledge and consent of the Industrial Trust Company, Pawtucket Branch, and through its officers. The old notes were taken up and paid for with checks drawn by the Cumberland Mills Company on the Industrial Trust Company, Pawtucket Branch, and there is a total lack of evidence tending to show that the Industrial Trust Company ever attempted to repudiate, or even criticize, the acts of the manager of its Pawtucket branch in relation to the discount of the new notes.

The reasons given by the complainant in its attempt to differentiate the present case from the case of Merriman v. Social Mfg. Co., 12 R. I. 175, are unsatisfactory. The evidence convinces us that the making of the new loan to the Cumberland Mills Company was the act of the Industrial Trust Company, Pawtucket Branch, but, even if it should be construed to be the act of the First National Bank of Pawtucket, it was valid as an exercise of power assented to by its sole stockholder. The case is completely governed by the case of Merriman v. Social Mfg. Co., supra.

The complainant having failed to substantiate its claim, the bill should be dismissed.

Cause remanded to the superior court, with direction to enter a decree dismissing complainant's bill of complaint, with costs.

(28 R. I. 407) DWYER et al. v. BOARD OF CANVASSERS AND REGISTRATION OF CITY

OF PROVIDENCE. (Supreme Court of Rhode Island. July 5, 1907.) CERTIORARI-SCOPE OF WRIT-ELECTION CONTEST REVIEW.

Where a city board of canvassers and registration determined that a caucus for the elec tion of members of the Democratic city committee was illegal and void, and that no person

had been legally elected thereat to any office or nomination, certiorari was not maintainable to review such finding and obtain a judgment that petitioners were duly elected as members of the Democratic city committee of the First Ward of such city, and were entitled to sit as members of such board in the place of holdover members of the committee.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 9, Certiorari, § 38.]

Certiorari by Timothy P. Dwyer and others against the board of canvassers and registration of city of Providence. Heard on petition for the writ. Dismissed.

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

John Doran and James H. Thurston, for petitioners. Albert A. Baker, City Sol., for respondents.

BLODGETT, J.

still be no election by reason of a tie vote for opposing candidates. The case is different from that which would be presented had the decision below affirmed the validity of the action of the caucus, and the writ were sought to obtain a decision here that the caucus was invalid, in which case it is apparent that the determination that the caucus was illegal and quashing the decision below ipso facto would determine that there was no election thereat.

ferior tribunal. Substantially the same

questions are raised and sought to be determined in this petition for a writ of certiorari as were sought to be determined when the quo warranto proceedings in Greenough, Atty. Gen., v. Lucey et al., 28 R. I. 230, 66 Atl. 300, were before the court. Both the present proceeding and the former one assert that the petitioners were duly elected as members of the First Ward Democratic city committee of the city of Providence on September 27, 1906, and seek a reversal of the decision of the board of canvassers and registration of said city-that the caucus held on that day was illegal and void, with the consequent result that certain persons by reason thereof are holdover members of said committee.

1. The case presented is not a case which justifies the interposition of the court in this form of proceeding. The finding of the board of canvassers and registration was "that said caucus was illegal and void, and that no person was legally elected thereat to any office or nomination." The prayer of the petition for this writ of certiorari is "that the proceedings of said board therein may be reviewed, and that the decision of said board so far as it declares said caucus illegal may be quashed, and the vote of said caucus electing petitioners to said office of said committee may be carried out, and that petitioners have such other and further relief as the circumstances require." Were the prayer of the petition to be granted, it would require the court not merely to hold that the caucus in question was a legal and valid caucus, but to decide which set of two opposing sets of candidates was elected thereat, and that, too, in a proceeding to which neither the present holdover members of said committee nor the candidates in opposition to the petitioners at said caucus are or can properly be made parties, or be served with process, and in which no judgment of ouster could be entered. This obviously involves a hearing of the case upon its merits and upon evidence. More than this, it is legally possible that, even were it a legal and valid caucus, there might

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In Smith v. Burrillville Town Council, 19 R. I. 61, 63, 31 Atl. 578, 579, it was said, by Tillinghast, J.: "And we are of the opinion that as certiorari does not serve the purpose of an appeal or bill of exceptions, and does not involve the investigation of facts, not appearing upon the record, unless they are jurisdictional, the proper practice is not to send up the evidence adduced before the inIf it is desired to enlarge the scope of the common-law proceedings so as to make it serve the purposes of a bill of exceptions or of a petition for a new trial, and thereby confer upon this court jurisdiction to correct errors of law and also to review findings of fact, thus necessitating the sending up of the evidence, it is, of course, competent for the General Assembly to provide therefor by statute, as has already been done in many of our sister states. This would secure uniformity of practice, and prevent the possibility of any such arbitrary proceedings on the part of inferior tribunals, as are suggested by counsel for the petitioner. But until some such statute shall have been enacted we must limit the proceeding to its common-law functions." And in Commonwealth v. Ramsay, 166 Pa. 642, 31 Atl. 345, it was said by the Supreme Court of Pennsylvania: "This is a certiorari, and it brings up for review nothing but the record. We might be unable to see in some of these cases why, upon the facts he has stated, one vote was held to be legal and another to be illegal, if an appeal had been given in this class of cases, and we were required to review them on their merits. But an appeal is not given. The merits are not before us. Upon this writ it is our duty to see that the successive steps taken in the investigation are in accordance with the statute that has prescribed them, but with the conclusions of the court below or its reasons for adopting them we have no con* But in proceedings like that before us that are creatures of a statute, and are provided for a specific purpose, we must look to the statute for the extent to which the judgment is reviewable. In this case no form of review is provided. Our supervisory control is that only which may be exercised in certiorari; and that does not extend to a review of the questions decided." In the recent case of State v. Reynolds, 190 Mo. 578, 89 S. W. 877 (1905), the Missouri statute provided as follows: "Sec. 23. Any action or neglect of the officer or members of a po

cern.

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litical convention or committee, or of any judge or clerk of primary election, or of any public officer, or board, with regard to the right of any person to participate in a primary election, convention or committee, or to register, or with regard to any right given to, or duty prescribed for, any elector, political committee, political convention, officer or board, by this act, shall be reviewable by the appropriate remedy of mandamus or certiorari as the case may require." Laws 1901, p. 162 [Ann. .St. 1906, § 7162]. The controversy was over a nomination at a primary election for member of the House of Delegates, and the court says (page 586 of 190 Mo., and page 879 of 89 S. W.): "The substance of his complaint is that he was counted out, notwithstanding he had a majority of the votes, and his prayer is that the court recount the ballots and declare him elected. There is no authority in section 23 for that procedure, and neither mandamus nor certiorari is appropriate to such case. But, even if we should say that the Legislature intended to bring the entire election proceedings into review by the courts, the means provided by the statute are ineffectual to accomplish that purpose, because the remedy is limited to what is appropriate under a writ of mandamus or certiorari." Adding later: "The attempt to regulate a primary election by statute is a novelty in the line of legislation, and this act shows that much is yet to be learned by experience before, if ever, such legislation can be reduced to a salutary system.

* It is bad policy to attempt to impose party contests of this kind on the courts. It, in effect, aims to clothe the courts with powers purely political in their nature, and to constitute the courts managers of the affairs of the political parties. And, besides being inappropriate, it is also inexpedient."

A similar view was expressed by Stiness, C. J., in Cannon v. Board of Canvassers, 24 R. I. 473, 53 Atl. 637, which was a petition for a writ of mandamus to require the issuing of certificates of nomination to the petitioners as candidates for alderman and common councilmen, the board having found "that no valid nominations had been made. This was within their province to find, and their judgment is final. The statute was not intended to make this court a supreme board of canvassers. * Suppose that we might have held a different opinion as to rejecting the 25 ballots without evidence, for example. We are not the tribunal to pass upon that question, and therefore it is not for us to say whether we think their judgment was right or wrong." The board had full jurisdiction, if not final jurisdiction (Atty. Gen. v. Drohan et al., 169 Mass. 534, 48 N. E. 279, 61 Am. St. Rep. 301), of the question before them, and their proceedings were regular in form. If they erred in requiring more evidence than was necessary to convince them of the election of the petitioners, certiorari does not lie to correct such

an error. Indeed, the case presented does not appeal even to our judicial discretion, since it does not appear that any steps have been taken to punish those who were guilty of suppressing the evidence which should have been presented to the board. Whether certiorari in any case would lie to try the title to a public office it is not now necessary to determine, inasmuch as it was determined in Atty. Gen. v. Lucey, supra, that membership in a political committee is not a public office. So that in strictness of speech no public question is here involved, but rather a question as to who are the representatives of a subdivision of a local organization of a voluntary association of fluctuating membership called a political party, whose members may aggregate at any giv en time only two out of every one hundred voters in the community, and that question is sought to be determined, moreover, upon evidence in certiorari proceedings.

The petition for the writ is denied and dismissed.

(74 N. J. L. 816) GEORGE et al. v. BOARD OF EXCISE OF CITY OF ELIZABETH et al. (Court of Errors and Appeals of New Jersey. June 17, 1907.)

CERTIORARI-APPEAL-QUESTIONS OF FACT

REVIEW.

A decision of a question of fact decided by the Supreme Court upon certiorari is binding upon this court, and not open to review on writ of error, if there appears to have been competent evidence upon which its conclusion could have been based.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 9, Certiorari, §§ 180-182.] (Syllabus by the Court.)

Error to Supreme Court.

Action by Ferdinando George and others against the board of excise of the city of Elizabeth and others. Judgment for defendants (63 Atl. 870), and plaintiffs bring error. Affirmed.

Clarence D. Meyer and Edward Q. Keasbey, for plaintiffs in error. James C. Connolly, for defendants in error.

TRENCHARD, J. The writ of certiorari issued out of the Supreme Court in this case brought up the action of the board of excise of the city of Elizabeth in granting a license to sell liquors in a new place within 200 feet of what was claimed to be a church. The Supreme Court affirmed the action of the municipal board, and the correctness of that judgment is here for review.

The ground upon which the prosecutors relied was that the license in question was granted contrary to the provisions of an act approved March 8, 1905 (P. L. p. 42). This act is amendatory of section 11 of the act of 1889, and provides as follows: "No license to sell spirituous, vinous, malt or brewed liquors by less measure than one quart

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shall be granted by any court, excise board or other board or authority having power to grant licenses * in any new place within two hundred feet of a church, school house or armory; the two hundred feet limit herein mentioned shall be ascertained by measurement from the nearest point of the church edifice, school house or armory to the nearest point of the building wherein such liquors or any of them are intended to be sold." It was contended by the prosecutors that the testimony showed the existence of a church within the prescribed limit. Upon consideration of such proofs as the parties saw fit to produce the Supreme Court found otherwise. Regarded in this light, the judgment of the Supreme Court must be affirmed. The controversy in that court was essentially one of fact, viz., whether there was a church within the prescribed limit. The court found that there was not.

A decision of a question of fact decided by the Supreme Court upon certiorari is binding upon this court, and not open to review on writ of error, if there appears to have been competent evidence upon which its conclusion could have been based. Moran v. Jersey City, 59 N. J. Law, 653, 35 Atl. 950; D. L. & W. R. R. Co. v. Newark, 63 N. J. Law, 310, 43 Atl 691; Morris & Cummings Dredg. Co. v. Jersey City, 64 N. J. Law, 587, 46 Atl. 609; Suburban Land Co. v. Vailsburgh, 68 N. J. Law, 311, 53 Atl. 388; Yellow Pine Co. v. Board of Assessors, 72 N. J. Law, 182, 61 Atl. 436. The testimony before the Supreme Court was competent, and certainly did not compel any other conclusion than that reached by the court.

The result is that the judgment of the Supreme Court must be affirmed.

(74 N. J. L. 818)

SPARKS v. RIVER & HARBOR IMPROVEMENT CO.

(Court of Errors and Appeals of New Jersey. June 17, 1907.)

1. MASTER AND SERVANT-SUITABLE APPLI ANCES.

A master's duty to his servant requires of the former the exercise of reasonable care and skill in furnishing suitable machinery and appliances for carrying on the business in which he employs the servant.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 173, 174.] 2. SAME-MACHINERY IN GENERAL USE.

That duty will be discharged by providing machinery and appliances which are in common and ordinary use, and which are reasonably safe and fit for the purposes for which they are to be applied.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 173, 174.]

3. SAME ASSUMPTION OF RISK.

While a servant assumes the risk of injury from obvious defects or dangers, he does not assume the risk of injury from defects and dangers which are not obvious, and of which he

had no knowledge, and could not observe and know of by the exercise of ordinary care.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Master and Servant, 88 574-583.] 4. SAME-NEGLIGENCE OF MASTER-CONTRIBUTORY NEGLIGENCE.

Where there is a fair dispute in the evidence, or two classes of conclusions can reasonably be reached from it, whether the injury to the servant was the result of the failure of the master to exercise the care required to provide proper machinery and appliances for the use of the servant, or whether the injury was the result of obvious danger or risk to the servant, or the want of ordinary care on his part to observe dangers within his knowledge, or of which he ought to have known in the exercise of such care, then a case is made which should be submitted to the jury for their determination.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Master and Servant, § 1001.]

(Syllabus by the Court.)

Error to Circuit Court, Salem County.

Action by Everett S. Sparks against the River & Harbor Improvement Company. Judgment for plaintiff. Defendant brings error. Affirmed.

William T. Read and Thomas E. French, for plaintiff in error. John W. Wescott, for defendant in error.

TRENCHARD, J. This writ of error brings under review a judgment of the Salem circuit court in favor of the defendant in error, the plaintiff below. The action was one of tort for negligence. Upon the trial there was evidence tending to prove the following facts: Everett S. Sparks, the plaintiff below, was employed by the River & Harbor Improvement Company, the defendant below, as a fireman and oiler, and while at work about a double-cylinder engine upon a mud scow belonging to the defendant the engine became "stuck on center." The captain of the scow told the plaintiff to pry it off. The captain shut off the steam, and plaintiff took a crowbar and applied it to the cogwheels in the same manner as he had seen the captain and others do. While he was doing this, the steam, notwithstanding the fact that it had been shut off, escaped into the cylinder and caused the engine to start. The crowbar hit the plaintiff in the mouth, knocked him down, and rendered him unconscious. His arm caught in the cogwheels, and he was seriously injured. At the close of the plaintiff's testimony, a motion was made to nonsuit the plaintiff upon two grounds: First, that there was no negligence shown on the part of the defendant; and, second, that the danger was obvious to the plaintiff. At the end of the case a motion was made that a verdict be directed in favor of the defendant for the same reasons as were urged on the motion to nonsuit. Both of these motions were denied by the trial judge and exceptions prayed and allowed, and the case was submitted to the jury. The jury found a verdict for the plaintiff below.

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