deduction, and allow the owner the same deductions against them as he is entitled to against the assessment of any other personal property. The Supreme Court held the latter to be the true construction of this statutory provision, and affirmed the tax against the prosecutor.

To determine the true construction of the provision, or, to state it in another way-to ascertain the intention of the Legislature that framed it-we must consider the situation that existed with relation to the taxation of bank stock at the time of its enactment. In 1899 the Legislature passed an act concerning banks and banking associations, by the thirty-fourth section of which it was provided that "every person shall be assessed in the township or ward where he resides for all shares of the stock of any national bank in this state, or of any bank organized under the laws of this state, owned by him or in his possession or control as trustee, guardian, executor, or administrator; and in case said owner, trustee, etc., shall be a nonresident of this state, then and in that case such bank shall be assessed in the township or ward where such bank has its principal place of business to the amount of such shares so owned or held by nonresidents as aforesaid, in the manner now prescribed by statute in the case of other corporations, and except as aforesaid the property, real and personal, of such banks shall not be subject to assessment or tax." P. L. 1899, p. 448. In the following year a tax assessed under this act came before the Supreme Court for review in the case of Mechanics' National Bank v. Baker, Rec'r, 65 N. J. Law, 113, 46 Atl. 586, and it was there contended that the tax was invalid, for the reason, among others, that in ascertaining the true value of the shares the tax officers made no deduction for the nontaxable property of the bank, the claim being, as in the present case, that such deduction should be made. The court held that in taxing such shares the state was under no obligation to require to be deducted from their value the nontaxable securities held by the bank which went to make up the value of the shares, and that there was nothing in the statute to indicate an intention on the part of the Legislature to require the assessor to make such deduction.

It was further contended in that case that the tax imposed was in violation of section 5219 of the federal statutes, which declares that the taxes to be levied on national bank stock under state laws shall not be assessed at a greater rate than upon other moneyed capital in the hands of individuals of such state. The ground of this contention was that the stock in controversy was assessed at a greater rate than the stock of trust companies of this state. The trust companies' act (P. L. 1899, p. 467, § 29) provided that every trust company should be taxed in the taxing district where its office was situated upon the amount of its capital stock issued and out

standing, except that any real estate belonging to any such corporation should be taxed in the taxing district where such real estate was situated, and the amount thereof should be deducted from the amount of any assessment made upon capital stock. Upon this point the court held that the trust companies' act required taxation upon the par value of its capital stock, and that, where it appeared that such stock was worth more than par, the federal statute compelled the assessment of stock of national banks in the same taxing district to be reduced to the same percentage of value-for example, if the stock of a trust company was worth 50 per cent. more than par, then the stock of national banks in the same taxing district could be taxed only at two-thirds of its value. The case subsequently came to this court, and we concurred in the views expressed in the opinion of the Supreme Court except upon the last point mentioned. Upon this point we held that trust companies were taxable upon the market value, not the par value, of their stock, and that therefore the assessment and imposition upon them was the exact equivalent of that upon national bank stock, and, so, that there was no discrimination against the latter made by our tax laws. 65 N. J. Law, 549, 48 Atl. 582.

In the year 1900, the scheme of taxation of bank stock created by the act of 1899 was altered by providing that thereafter all real estate of any bank should be assessed to the bank in the city, township, or ward in which said real estate was located, and the amount of the assessment deducted from the assets of the bank in estimating the assessable value of the shares of stock of said bank. P. L. 1900, p. 295. With this exception the act of 1899 remained unchanged until the year 1905, and taxes were assessed against the stock of banking corporations under the rule laid down in the Mechanics' Bank Case, with the modification provided by the act of 1900. Having in mind this situation of the law respecting the taxation of bank stock, what object had the Legislature in passing the supplement of 1905? That they purposed to make some change in the existing law must be conceded, for it cannot be presumed that they went through the form of passing a statute that they intended should have no force or effect whatever. That portion of the act which required the deduction of the value of the real property of the bank from the total valuation of the shares of stock assessed against the stockholders manifestly made no change in the law, for as has been already pointed out that change was made by the act of 1900. The provision that the assessment and taxation of shares of bank stock should not be at a greater rate than is made or assessed upon other moneyed capital in the hands of individuals in this state, although not previously found in our statutes, was nevertheless a part of the existing law, for it was embodied in section 5219 of the federal statutes and was binding upon the state, as was indicated in the Mechanics' Bank Case.

The change in the law, therefore, must be found in the provision which requires that, "In assessing the shares of stock of banks or banking associations organized under the laws of this state or of the United States, the assessors shall allow all the deductions and exemptions granted by law from the value of other taxable property owned by individuals in this state." At the time of the enactment of the statute, and for nearly half a century previously, the general tax law of the state permitted the individual taxpayer to have deducted from the total value of his taxable personal property all debts bona fide due and owing from him to creditors residing in the state. It also entitled him to have exempted from taxation all "nontaxable" securities held by him. To adopt the construction put by the Supreme Court upon the last-cited provision of the act of 1905, is, therefore, to declare that the Legislature, in enacting it, intended to accomplish nothing. This, as we have already stated, is, in our judgment, enough to condemn such a construction.

But, aside from this, the wording of the statute itself militates against the meaning put upon it by the Supreme Court. Its mandate is that the assessor shall allow all deductions and exemptions granted by law to individual taxpayers. The deduction which the law allows to the individual is the subtraction of his debts from the total valuation of

his taxable personal property-not from any particular portion thereof; the exemption granted him by law is the right to have excluded from the assessment of his personal property every nontaxable security which he holds. The phraseology of the statute is not apt to express an intent to provide a different method of making the deduction of the taxpayer's debts when he happens to be the holder of bank stock from that which prevails when he is not such holder, although it is, of course, susceptible of being so read. But the requirement that the assessor shall allow exemptions cannot be given effect against stock in the hands of the taxpayer except by exempting the stock itself from taxation, for the only exemption allowed to the individual taxpayer is exemption from taxation on securities which the law has relieved from such burden. Clearly, the wording of the statute negatives any such intention.

We conclude that, by the true construction of the act of 1905, in making an assessment of the shares of stock, either of a state or national bank, against the stockholders, the assessor is required to deduct from the total valuation of all the shares, not only the assessed valuation of the real property of such bank, but also the total value of all the nontaxable securities held by the bank.

The judgment of the Supreme Court will be reversed.

(29 R. I. 127) KOLODRIANSKI ▼. AMERICAN LOCOMOTIVE CO.

(Supreme Court of Rhode Island. April 27, 1908. On Rehearing, May 1, 1908.) 1. MASTER AND SERVANT NEGLIGENCE OF MASTER-ACT OF FELLOW SERVANT-IMPUTED NOTICE TO MASTER.

Where plaintiff was injured by the falling of a sheet of metal placed several weeks previously over certain machinery to protect it from leakage through the roof, the sheet of metal, though so placed by a fellow servant, had been used for the purpose so long that notice of the arrangement might be imputed to the master so as to sustain a verdict for plaintiff on the theory of the master's negligence.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 456-465, 515525.]

2. SAME-SAFE PLACE TO WORK-KNOWLEDGE OF DANGEROUS CONDITION.

Where a sheet of metal was placed over machinery to protect it from leakage through the roof and remained there several weeks, its continuance where it would almost inevitably fall when the machinery was operated was in violation of the master's duty to provide a reasonably safe place to work.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 179, 205.] 3. EVIDENCE-EVIDENCE AT FORMER TRIALABSENCE OF WITNESS.

In an action by a servant for injuries, where the absence of plaintiff's wife from the jurisdiction of the court was satisfactorily explained, her testimony taken at a former trial is admissible.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 20, Evidence, § 2406.]

4. NEGLIGENCE-ACTIONS-RECEPTION OF EVIDENCE-CHANGE IN HEARING CAPACITYREMOTENESS OF TIME OF KNOWLEDGE OF PREVIOUS CONDITION-EFFECT.

The fact that plaintiff's wife had not seen him for a period of about four years before the accident would not affect the admissibility of her testimony as to changes in his hearing capacity between the time she last saw him before the accident and when she saw him three months after the accident, but would merely go to the weight of her evidence.

5. EVIDENCE-WEATHER RECORDS.

Weather records kept by a city are admissible to rebut testimony as to the condition of the weather in the city at a certain time.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 20, Evidence, § 1257.]

On Rehearing.

6. MASTER AND SERVANT-LIABILITY OF MASTER DANGEROUS PLACE TO WORK-INTERMITTENT CONDITION-EFFECT.

In an action for damages to a servant from the fall of a metal sheet placed over machinery to protect it from leakage through the roof, the fact that such use of the covering was intermittent and not continuous would be immaterial on the master's liability where it was so long continued that the master should have known of it.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 243-251.]

Exceptions from Superior Court, Providence County.

Action by Basyli Kolodrianski against the American Locomotive Company for personal injuries. Judgment of $4,166.67, and defendant excepts. Exceptions overruled. Plaintiff came to this country some four years prior to the injury, but his wife did not come until 69 A.-32

three months after the injury, and returned again in four months because, as plaintiff testified, he could not support her here.

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

Frank Healy & George T. Marsh, for plaintiff. William A. Morgan, for defendant.

PER CURIAM. The verdict in this case is supported by competent evidence on the part of the plaintiff, although it is contradicted in some particulars by the defendant's witnesses. We think the weight of the evidence supports the claim that the plaintiff's injuries were caused by the fall upon him of a heavy sheet of metal which had been used for several weeks to protect certain machinery from the rain which might fall through a leaky roof. Though the metal was placed in position by a fellow workman it had been used for the purpose so long that the notice of the arrangement might well be imputed to the defendant corporation. The continuance of the sheet of metal in a position where it would almost inevitably fall when the machinery was operated violated the duty of the defendant to provide a reasonably safe place for its workmen. We do not find the verdict excessive in view of the evidence of the plaintiff's physicians. These considerations dispose of the fifth, sixth, seventh, and eighth exceptions.

The first exception is to the admission in evidence of the testimony of the plaintiff's wife taken at a former trial. It has long been the practice of our courts to admit such testimony where, as in this case, the witness is beyond the jurisdiction of the court, and the opposite party has had an opportunity to cross-examine. This practice is sanctioned by the best authorities (Stevens' Digest, Evidence, art. 32, pp. 76, 77, 78; 1 Greenl. Evidence [15th Ed.] § 163, p. 234), and we think it is in accordance with reason. A deposition of the witness would presumably be a mere repetition of his testimony taken in open court in the presence of both parties or their counsel. The suggestion that the witness in the present case was kept away by the procurement of the plaintiff is not supported by the evidence; on the contrary, her absence is satisfactorily explained.

The second exception is to the admission of the testimony of plaintiff's wife given at the former trial as to the state of the plaintiff's hearing four years before the accident. The testimony referred to the changes in his hearing capacity between the last time that she saw him before the accident and the time subsequent to the accident. The exception goes to the weight of this evidence rather than to its admissibility. We do not think that the court erred in permitting it to be read.

The third exception was to the introduction of the weather records of the city of

Providence. They were properly admitted to show the state of the weather in rebuttal of the evidence of one of defendant's witnesses who testified on the same subject. The formal authentication of the record was expressly waived.

The fourth exception is not insisted upon. The defendant's exceptions are overruled, and the case is remitted to the superior court for judgment upon the verdict.

On Rehearing.

The evidence appears to show that the practice of covering the rolls with the sheet of iron had continued so long that it should have been known to the defendant. It is of no importance upon the question of liability that this use was intermittent and not continuous.

The defendant's petition for reargument is denied.

KOLODRIANSKI v. AMERICAN LOCOMOTIVE CO.

(Supreme Court of Rhode Island. April 27, 1908.)

Action by Basyli Kolodrianski against the American Locomotive Company. Application for revision. Denied.

Frank Healy and George T. Marsh, for plaintiff. William A. Morgan, for defendant.

PER CURIAM. The affidavits filed with this petition by the defendant are abundantly contradicted by those of the plaintiff's witnesses. The weight of the testimony is to the effect that the physical condition of the plaintiff has steadily deteriorated since the trial. We do not think that justice requires a revision of the case, and the petition is therefore denied.

STATE v. HARRIS.

(Supreme Court of Rhode Island. April 24, 1908.)

1. CRIMINAL LAW-ASSAULT WITH DANGEROUS WEAPON-EVIDENCE-RES GESTÆ.

In a trial for assault with a dangerous weapon, testimony by the man assaulted that, immediately after the assault, he told another that he "got knocked out," and that, on being asked what happened, he replied that defendant struck him over the head with a bar of iron, and that such person asked where defendant went, and went to hunt him, was admissible as part of the res gestæ.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 14, Criminal Law, §§ 819, 820.] 2. WITNESSES

QUESTIONS.

EXAMINATION-PRELIMINARY

In a trial for assault, the question, asked by the state of the assaulted man's sister as a state witness, whether defendant ever had any talk or words with her, or made any threats against her brother, was not objectionable; the inquiry being merely introductory to direct her mind to the subject inquired about.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 50, Witnesses, §§ 817-824.]

Exceptions from Superior Court, Providence County.

Owen Harris was convicted of an assault with a dangerous weapon, and he brings exceptions. Exceptions overruled, and cause remitted to the superior court for sentence.

Henry W. Greenough, Asst. Atty. Gen., for the State. Stephen J. Casey and John L. Maroney, for defendant.

PER CURIAM. The first exception relates to a statement volunteered by McManus in answer to a question which was not objected to, as follows: "I says to Eddie Burton, 'I got knocked out.' He says, 'What has happened to you?' I says, 'Owens struck me over the head with a bar of iron.' So he says, 'Where did he go?' and he went and. hunted for him." The evidence fixes the time when this conversation occurred as immediately after the assault, apparently within a very few seconds. We think it was properly admitted by the trial judge as part of the res gestæ.

The exception to the question, "Now, I will ask you, Miss McManus, if this defendant ever had any talk with you, any words with you, or made any threats against your brother?" has no merit. The inquiry was merely introductory, for the purpose of directing the mind of the witness to the subject inquired about.

The questions directed to witness Egan for the purpose of rebutting the testimony of witness Bold were immaterial, and the answers could not have prejudiced the defendant.

The testimony of the witnesses for the state is only contradicted by the denial of the defendant. The attempt to prove an alibi is a complete failure. We think the verdict is well sustained by the evidence.

The defendant's exceptions are overruled, and the cause is remitted to the superior court for sentence.

KEAVENY v. NARRAGANSETT BREWING CO.

(Supreme Court of Rhode Island. May 21, 1904.)

MASTER AND SERVANT-INJURY TO SERVANT BY ESCAPING STEAM-CONTRIBUTORY NEGLI

GENCE-EVIDENCE-SUFFICIENCY.

Evidence in an action for injury to a fireman caused by a defective steam valve held to sustain a finding that he was not guilty of contributory negligence in operating the valve.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 988-996.]

Personal injury action by Michael Keaveny against the Narragansett Brewing Company. Verdict for plaintiff, and defendant petitions for a new trial. Petition denied.

Argued before TILLINGHAST, DOUGLAS, and BLODGETT, JJ.

John W. Hogan, for plaintiff. Walter B Vincent, for defendant.

PER CURIAM. The defendant in this case admits its negligence in permitting a certain steam valve to become badly out of repair; but it claims that it is not responsible for the injuries which the plaintiff received by the escape of steam therefrom, because he operated the valve knowing its condition. It appeared that a part of the boiler had broken, allowing the escape of steam into the boiler room; and the plaintiff, who was a fireman in charge of the room, in the absence of the engineer, operated the valve in question and incurred the risk of personal injury in order to prevent serious damage to the property of the defendant and its workmen. It further appears that, while such apprehended damage was improbable as a matter of fact, it was fairly within the scope of the plaintiff's duty to close the valve, and the plaintiff, in the confusion and uncertainty of the moment, was honestly impressed with the imperative necessity of closing it. The plaintiff, three or four weeks before the accident, had reported to the chief engineer that the valve was defective, and had been told that it would be repaired. When he went up to the top of the boiler to close the valve at the time of the accident, the room was darkened by the steam, and he testifies that he supposed the repairs had been made. He had no reason to know whether the repairs had been made or not, as his hours of labor were not the same as those of the repair gang. In these circumstances, we are not persuaded that the jury erred in considering that the plaintiff's assumption of the risk was justified by the exigency, and that the use of his hands in turning the valve was not contributory negligence.

Petition for new trial denied.

BOWLER et al. v. EMERY. (Supreme Court of Rhode Island. April 23, 1908.)

Appeal from Probate Court.

Application by Robert P. Bowler and others, trustees, to the probate court to require Mary M. Emery, executrix of the estate of Thomas J. Emery, to deposit sufficient assets to satisfy a claim for rent to be due in the future from said estate. From a judgment of the superior court, dismissing appeal from the probate court, petitioners appeal. Cause continued for further argument.

Hale & Grinnell, for appellants. William Paine Sheffield, Herbert Jenney, and Drausin Wulsin, for appellee.

PER CURIAM. It appears by the record in this case that the appellee gave to the probate court her bond in the sum of $300,000, "with condition to pay the funeral charges, debts, and legacies of the testator, and such allowance as may be made by the court for the support of the widow and family of the testator," as provided in Court and Practice

Act 1905, 1013. The court therefore desire to hear further argument in the case upon the question whether the assets of the estate have not thereby been removed from the control of the probate court, so as to prevent the application of the provisions of section 922 to this case. See Adams v. Probate Court, 26 R. I. 239, 58 Atl. 782.

(108 Md. 54)

POTOMAC DREDGING CO. OF BALTIMORE CITY v. SMOOT et al. SMOOT et al. v. POTOMAC DREDGING CO. OF BALTIMORE CITY.

(Court of Appeals of Maryland. April 1, 1908.) 1. NAVIGABLE WATERS-RIPARIAN RIGHTSCONVEYANCES

SHORE.'

The word "shore," as used in conveyancing when applied to tidal waters, both in the common and civil law, means the space between high and low water marks.

[Ed. Note.-For other definitions, see Words and Phrases, vol. 7, pp. 6495–6497.]

2. SAME-SCOPE OF GRANT.

Where a lease described 'a privilege granted as certain riparian or other rights, to wit, the exclusive privilege of taking, by dredging or otherwise, all sand and gravel that the lessee, his personal representatives, or assigns may desire to take along the entire shores or water fronts of a certain farm, the lessee's rights were limited to the excavation of sand and gravel between high and low water marks, and did not authorize the removal of fast land from any part of the farm bordering on the stream. 3. CURTESY RIGHTS OF TENANT ANCE OF EASEMENT. Where the grantor of an easement was but a tenant by the curtesy, he had no right under his authority to convey his life estate to grant an easement authorizing the grantee to commit waste.

CONVEY

[Ed. Note.-For cases in point, see Cent. Dig. vol. 15, Curtesy, § 50.]

4. WASTE WATERS AND WATER RIGHTS.

Dredging and carrying away sand and gravel by a life tenant from the shore of land bordering on a stream, and the removal of fast land and trees above high-water mark, was an injury to the inheritance and constituted waste.

[Ed. Note.-For other definitions, see Words and Phrases, vol. 8, pp. 7406, 7408, 7833.] 3. LIFE ESTATES-LEASE BY LIFE TENANTREMAINDERMEN-RATIFICATION-ESTOPPEL.

Where a tenant by the curtesy without authority granted a lease, which was recorded, authorizing the lessee to remove sand and gravel from the shore of the land, the fact that subsequent deeds to the land executed by the life tenant and remaindermen provided that they should be subject to the provisions of the lease, and referred to its public record, did not constitute a ratification of the lease by the remainder

men.

6. ESTOPPEL-DEEDS.

The deed so executed did not estop the grantee to deny the validity of the lease. 7. NAVIGABLE WATERS-RIPARIAN LANDOWNERS REMOVAL OF BANK.

The common-law rule that the owner of riparian land could not grant a license to remove sand and gravel from the shore was modified by Acts 1900, p. 905, c. 577, authorizing owners of land bordering on the Potomac river, and by Acts 1906, p. 784, c. 426, conferring on the owners of land bordering on any navigable river, creek, or branches thereof in the state to contract for the removal of such material.