was doing so. Neither was misled by any assumed power to act on the part of the other, for neither supposed that such power was being exercised. The only agreement was as to the amendments of the bill of exceptions, without reference to the time in which the bill should be allowed or established.

The petitioner fails to bring herself within the provisions of section 473, and the petition must be denied and dismissed.

fendant kept the goods stored with it in a sufficiently low temperature to preserve them. There is sufficient evidence to support the verdict of the jury and the decision of the superior court refusing a new trial.

The defendant's exceptions are overruled, and the cause is remanded to the superior court for judgment on the verdict.

The evidence showing that plaintiff's accident was caused by her want of due care in a dangerous place, the perils of which she knew, nonsuit is properly granted.

[Ed. Note. For cases in point, see Cent. Dig. vol. 37, Negligence, § 84.]

Exception from Superior Court, Providence County.

Action by John Purnell against Whitford, Bartlett & Co. There was a nonsuit, and plaintiff brings exception. Exception overruled, and cause remanded for judgment.

Dubois & Dubois, for plaintiff. Vincent, Boss & Barnefeld and Alexander L. Churchill, for defendant.

PER CURIAM. The evidence shows that the plaintiff's accident was caused by want of due care on his own part in a dangerous place, the perils of which he knew. The nonsuit was properly granted.

The plaintiff's exception is overruled, and the cause remanded to the superior court for judgment.

BROWN V. MERCHANTS' FREEZING & COLD STORAGE CO.

(Supreme Court of Rhode Island. May 8, 1907.) APPEAL AND ERROR-REVIEW-CONFLICTING EVIDENCE.

The evidence being conflicting, and sufficient to sustain the verdict and the decision refusing a new trial, they will not be disturbed. [Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 3928.]

Exceptions from Superior Court, Providence County.

Action by Edward A. Brown against the Merchants' Freezing & Cold Storage Company. Verdict for brings

plaintiff. Defendant

exceptions. Exceptions overruled, and cause remanded for judgment.

William P. Sheffield, Jr., Max Levy, and William R. Harvey, for plaintiff. Dexter B. Potter, for defendant.

PER CURIAM. The evidence was conflicting upon the question whether the de

ELSEECK v. CAPWELL, Township Trustee. (Supreme Court of Rhode Island. May 3, 1907.) HIGHWAYS-ACCIDENT-LIABILITY.

There is no liability on the part of the town, where the stumbling of a horse and the consequent fall from the carriage of the occupant are shown to be, not the result of defects in the road, but mere accidents.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 25, Highways, § 478.]

Exceptions from Superior Court, Providence County.

Action by Francis J. Elseeck against Charles A. Capwell, township trustee. Plaintiff excepts. Exceptions overruled, and cause remanded for new trial.

Edwards & Angell and James B. Littlefield, for plaintiff. Charles H. Page, Jr., for defendant.

PER CURIAM. The evidence very strongly preponderates against the claim of the plaintiff that the accident which caused her injuries was the result of any defect in the road which it was the duty of the town to keep in repair. So far as the testimony discloses, the stumbling of the horse and her fall from the carriage seem to have been mere accidents, for which no one is responsible, unless it be that she was driving without due care.

The plaintiff's exceptions are overruled, and the cause is remanded to the superior court for a new trial.

(28 R. I. 338)

DEAHY v. CHOQUET et al. (Supreme Court of Rhode Island. June 26, 1907.)

1. BILLS AND NOTES-WHO ARE INDORSERS. Neg. Inst. Act (Pub. Laws 1896-1900, p. 84, c. 674) art. 1, § 3, provides that the person "primarily" liable on an instrument is the person who, by the terms thereof, is absolutely required to pay the same, and that all other parties are "secondarily" liable. Article 6, § 71, provides that a person placing his signature on an instrument otherwise than as maker, drawer, or acceptor is deemed to be an indorser, unless he clearly indicates his intention to be bound in some other capacity. Article 8, § 97, provides that where a negotiable instrument has been dishonored, if notice of dishonor is not given to an indorser, he shall be discharged. Held, that persons who placed their signatures on the back of a note before delivery for the accommodation of the maker were indorsers, and could not be held as joint makers on the ground that the holder would not have taken

the note without their signatures, and hence, under section 97, were discharged by failure to give notice of dishonor, unless waived.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 7, Bills and Notes, § 549.]

2. SAME-WAIVER OF PRESENTMENT AND No

TICE.

Evidence examined, and held, provided a certain conversation occurred at the time claimed by the holder of the note, to show waiver by an indorser of presentment and notice of dishonor.

[Ed. Note. For cases in point, see Cent. Dig. vol. 7, Bills and Notes, § 1845.]

3. SAME DISCHARGE OF INDORSER.

Under Neg. Inst. Act (Pub. Laws 18961900, p. 106, c. 674) art. 9, § 128, subd. 6, providing that a person secondarily liable on a negotiable instrument is discharged by any agreement binding on the holder to extend the time of payment or to postpone the holder's right to enforce the instrument, unless made with the assent of the party secondarily liable or unless the right of recourse against such party is expressly reserved, where the holder of a note agreed with the maker not to press the suit commenced thereon while certain monthly payments should continue to be made, indorsers on the note were thereby discharged.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 7, Bills and Notes, § 582.]

Exceptions from Superior Court, Providence County.

Assumpsit on a promissory note by David P. Deahy against Ambrose Choquet and others. Verdict for defendants except as to Choquet, and as to him verdict for plaintiff, and plaintiff excepts. Exceptions overruled, and case remanded for judgment on the verdict.

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

John W. Hogan and Philip S. Knauer, for plaintiff. Irving Champlin, Hugh J. Carroll, and Thomas Riley, Jr., for defendants.

DOUGLAS, C. J. A few days before June 5, 1901, the defendant Choquet, being desirous of borrowing some money, called, with defendant Carroll, upon the plaintiff, and asked him for a loan upon a proposed note. The plaintiff offered to lend the money if the note should be indorsed by reliable persons. On June 5th Choquet, accompanied by Carroll, called again and offered to the plaintiff a promissory note in the words and figures following:

"$1,80000/100. Pawt., R. I., May 29,

1901.

"Three months after date I promise to pay to the order of Joseph H. Beland eighteen hundred 00/100 dollars at the Ind. Trust Co. Pawt. Branch. Value received.

"Ambrose Choquet."

Upon the back of the note were the signatures: "J. H. Beland. Hugh J. Carroll. Hugh J. McGinn." The plaintiff examined the note and approved it, whereupon Carroll wrote at the bottom, after the printed word "Due," the words and figures: "Sept. 5, '01.

Money advanced June 5, '01"-and the plaintiff took the note and gave to Choquet his check for $1,737, deducting from the face of the note $63 for three months' interest. No presentation of the note was made at the bank, either three months from its date or three months from June 5th. No notice of dishonor was ever given to the parties whose names are upon the back of the note.

This action was begun by a writ of attachment dated January 7, 1904, which was served January 25th by attachment of real estate of defendant Carroll and personal property of defendant Choquet and by summons of defendants Beland and McGinn. All the defendants answered, and, certain special pleas having been overruled on demurrer, trial upon the general issue was begun December 5, 1906, and ended December 7th by a verdict, by direction of the court, against the defendant Choquet and in favor of the other defendants. The verdict in favor of the defendants Beland, Carroll, and McGinn was directed on the ground that they were indorsers and released from liability by failure of the holder to make due presentment for payment of the note and to give them notice of the dishonor, as well as on the ground that the agreement referred to was an extension of time given to the maker within the meaning of section 128, subd. 6, Neg. Inst. Act. (Pub. Laws 1896-1900, p. 106, c. 674).

1. We think the direction should be sustained. Article 1, § 3, of the negotiable instruments act (chapter 674, Pub. Laws), provides that: "The person primarily' liable on an instrument is the person who by the terms of the instrument is absolutely required to pay the same. All other parties are secondarily' liable." Article 6 section 71, of the same act provides that: "A person placing his signature upon an instrument otherwise than as maker, drawer, or acceptor is deemed to be an indorser unless he clearly indicates by appropriate words his intention to be bound in some other capacity." The defendants named come within the plain language of these sections, and there is no evidence that they made any agreement to vary their liability. They all affixed their names to the note, before delivery, for the accommodation of Choquet, to whom the plaintiff directly paid the money for it, knowing that they were such accommodation indorsers. As such they were entitled to notice of the dishonor of the note by sections 97 and 111 of article 8, c. 674, which they never received.

It is urged, however, by the plaintiff, that all these defendants became liable to him as joint makers, because he would not have taken the note if their names had not been upon it, and, in regard to defendant Carroll, that there was an express waiver by him of presentment and notice. The claim that the indorsers are liable as makers, because the plaintiff required good indorsers before he

would discount the note, is the height of absurdity. If it were valid, every indorser whose name was of any value would be held as a maker. The principle which the plaintiff mistakes as applicable to this case is well stated in the case which he cites. Equitable Marine Insurance Co. v. Adams, 173 Mass. 436, 53 N. E. 883. In that case the company assented to the assignment of a policy of insurance on condition that the assignee should indorse the premium note, which, of course, had been made and delivered at the time the policy was issued. The court held that Pub. St. Mass. 1882, c. 77, § 15: "Every person becoming a party to a promissory note payable on time, by a signature in blank on the back thereof, shall be entitled to notice of nonpayment the same as an indorser"-does not refer to a collateral contract made subsequent to the issuing of a note and upon an independent consideration, even if it happens to be indorsed upon the note, instead of being written upon a separate piece of paper. The case of Downey v. O'Keefe, 26 R. I. 571, 58 Atl. 999, holds the familiar doctrine, which prevailed in Rhode Island until the operation of the negotiable instruments act, that one not the payee of a note, who indorses it or agrees to indorse it before its issue, is liable as a joint maker. Moies v. Bird, 11 Mass. 436, 6 Am. Dec. 179, and Leonard v. Wildes, 36 Me. 265, are to the same effect. This doctrine has no validity since the passage of section 71 of the negotiable instruments act.

In the case at bar the note was issued when the plaintiff paid the maker a consideration for it, and there is no evidence of any consideration being paid to the indorsers, or of any agreement with them other than that expressed by their signatures upon the note. By indorsing the note they assumed the obligation of successive indorsers, to become effectual when it came into the hands of a holder for value. This obligation was released by failure to make presentment and to give notice of dishonor, and the plaintiff has no claim upon them, unless they have waived their rights as indorsers. There is no claim that Beland and McGinn ever did so, and the verdict in their favor must stand. In the case of Carroll the plaintiff testified that in the last week in August, 1901, he called upon Carroll and the following conversation occurred: "Q. What was said? A. He seemed to be surprised. I said: 'By the way, I have not put that in the bank yet.' He says: "That is all right. You don't need to. As long as you keep the note, the note is all right; the names are all right.' Q. Did he give any reason why it was not necessary to put it in the bank? A. He said, if I sold the note, then he would have to put it in; but it was not necessary as long as I was the original holder." Carroll denied that this conversation ever occurred, or that he had any conversation with

the plaintiff after the making of the note till more than a year had elapsed. We think, if the conversation did occur at the time when the plaintiff places it, that it amounted to a waiver on Carroll's part of presentment and notice, and hence that on that question of fact the plaintiff was entitled to go to the jury.

2. But it is necessary to consider another independent ground of defense, which arises from these circumstances: Before the return day of the writ the plaintiff became a party to the following agreement:

"Agreement made and entered into this 8th day of February, A. D. 1904, by and between David P. Deahy, of the city of Pawtucket, and Ambrose Choquet of Central Falls, in the county of Providence: Whereas, said Deahy has begun suit against said Choquet and others in the common pleas division of the Supreme Court in the county of Providence to recover the amount due upon a certain promissory note for eighteen hundred dollars, dated May 29, 1901, signed by said Ambrose Choquet and payable to the order of Joseph H. Beland three months after the date thereof, and which said note was indorsed by said Joseph H. Beland, Hugh J. Carroll, and Hugh J. McGinn, which said suit is returnable to said court February 20, 1904; and whereas, the plaintiff has attached upon the original writ in said suit certain linotype machines belonging to said Ambrose Choquet and being run and operated at the shop of Lester W. Upham and George H. Burroughs, copartners as the Chronicle Printing Company, under a certain agreement with said Choquet; and whereas, said David P. Deahy has agreed to withdraw said attachment upon said machines upon promise of the payment of the lawful costs in said suit to date, and upon payment to him of the sum of at least fifteen dollars per month from any sum of money which may become due and payable to said Ambrose Choquet by said Chronicle Printing Company between the 20th and the last day of each month succeeding the date hereof, the same to be applied by said Deahy toward the payment of said note, interest, and costs: Now witnesseth, said Choquet agrees to authorize the payment to said Deahy of at least fifteen dollars per month and any sum over that amount due and payable to him monthly from said Chronicle Printing Company, as aforesaid, the same to be applied toward the payment of the amount due upon said note, interest, and costs of said attachment to this date; and said Deahy agrees, in consideration of the premises, to withdraw and discharge said attachment, and also agrees not to press said suit against said Choquet while such payments shall be made and assured to him monthly as above specified. In witness whereof said parties have set their hands to this agreement in

triplicate the year and day first above written. David P. Deahy, "Ambrose Choquet.

"Executed in the presence of

"Patrick V. McElroy.

"We, Lester W. Upham and George H. Burroughs, copartners doing business under the name and style of the Chronicle Printing Company in said Pawtucket, hereby consent to pay over monthly to said David P. Deahy the sum of fifteen dollars, or such balance which may become due and payable by us to said Choquet for linotype work performed for us, after, however, deducting from the same sum of money which we may and might advance to said Choquet to help him to run said linotype machines.

"Pawtucket, R. I., February, A. D. 1904. "Chronicle Printing Company. "Lester W. Upham. "George H. Burroughs."

The undertaking of the Chronicle Printing Company, though differing slightly from the promise of Choquet, was accepted by the plaintiff, and the attachment of the personal property of Choquet was immediately released. Payments were made under said agreement from that time to nearly the time of trial, and were received by the plaintiff as installments due under the agreement. The plaintiff excepted to the admission of this agreement in evidence under the general issue, and to the direction of the verdict in favor of defendants Beland, Carroll, and McGinn. This matter of defense was first offered by special plea, and excluded on demurrer; but the defendant's exception to that ruling is not before us. In assumpsit the rule has grown up that it is improper to plead specially such matters as discharge, payment, and the like, as such defenses amount to the general issue. If the transaction was in law a discharge of the three defendants who pleaded it, they were entitled to present it in one form or the other.

It is argued on behalf of the defendants that the discharge of the attachment was a discharge of the indorsers from further liability. While there is eminent authority for such a contention, the contrary is held in all the New England states. We do not find it necessary to discuss the question, inasmuch as we find the next point conclusive. It is that the agreement gave an extension of time to Choquet, under the provisions of the negotiable instruments act (section 128, subd. 6): "A person secondarily liable on the instrument is discharged: * (6) By any

agreement binding upon the holder to extend the time of payment or to postpone the holder's right to enforce the instrument unless made with the assent of the party secondarily liable, or unless the right of recourse against said party is expressly reserved." We agree with the superior court that the promise not to press the suit on the note against Choquet was a postponement of the

holder's right to enforce the Instrument within the meaning of the law, and so discharged the defendant Carroll, who was the only one then bound in any case.

The plaintiff's exceptions are overruled, and the case is remanded to the superior court for judgment on the verdict.

ROBINSON v. NEW YORK, N. H. & H. R. CO.

(Supreme Court of Rhode Island. May 15, 1907.)

EXCEPTIONS, BILL OF-TIME OF FILING.

A bill of exceptions, not having been filed in the trial court till more than 50 days after the giving of notice of intention to prosecute such a bill, must be dismissed.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 21, Exceptions, Bill of, §§ 54, 55.]

Exceptions from Superior Court, Providence County.

Action by William C. Robinson against the New York, New Haven & Hartford Railroad Company. Plaintiff brings exceptions. Exceptions dismissed, and cause remanded.

Albert B. Crafts, for plaintiff. Lewis A. Waterman, for defendant.

PER CURIAM. This bill of exceptions, having been filed in the superior court more than 50 days after the notice given by the plaintiff of his intention to prosecute a bill of exceptions, must be dismissed, and the cause remanded to the superior court for further proceedings.

ROBINSON v. NEW YORK, N. H. & H. R. CO.

(Supreme Court of Rhode Island. May 15, 1907.) EXCEPTIONS, BILL OF-TIME OF FILING-EX

TENSION.

Extension of time for filing bill of exceptions will be granted by the Supreme Court under Court and Practice Act 1905, § 473; the party having delayed beyond the statutory limit in filing the same in reliance on an order of the superior court assuming to extend such time.

[Ed. Note. For cases in point, see Cent. Dig. vol. 21, Exceptions, Bill of, § 61.]

Action by William C. Robinson against the New York, New Haven & Hartford Railroad Company. Plaintiff petitions for extension of time to file bill of exceptions. Petition granted.

Albert B. Crafts, for plaintiff. Lewis A Waterman, for defendant.

PER CURIAM. The petitioner in this case delayed the filing of his bill of exceptions beyond the time allowed by law in reliance upon an order of the superior court assuming to extend the time beyond the statutory limit. We think that justice requires a revision of the case, and that he is

entitled to relief under section 473, c. 26, p. 134, of the Court and Practice Act of 1905.

Accordingly the prayer of the petition is granted, and the plaintiff is allowed to file his bill of exceptions and transcript of the evidence in the superior court within 20 days, and to prosecute his bill according to law.

(28 R. I. 350)

SELLECK et al. v. THOMPSON. (Supreme Court of Rhode Island. June 18, 1907.)

1. CHARITIES-DEVISE-SUFFICIENCY.

Testatrix in her will expressed her desire to devote the greater portion of her property to charitable purposes and vested the legal title thereto in her trustees, gave general directions as to the care of the trust property, and clothed the trustees with the power to select the beneficiaries. Held sufficiently definite, and a valid gift to charitable uses.

[Ed. Note. For cases in point, see Cent. Dig. vol. 9, Charities, § 45.]

2. SAME - CONSTRUCTION POWERS.

OF TESTAMENTARY

Under a will creating a charitable trust and clothing the trustees with the power to select the beneficiaries, the selection of the beneficiaries may well be left, where the will placed it, in the discretion of the trustees, since, if a scheme of distribution were required, a revision thereof would be necessary whenever the trustees made a new selection.

[Ed. Note. For cases in point, see Cent. Dig. vol. 9, Charities, § 45.] 3. SAME.

Under a will creating a charitable trust and directing the trustees to nominate, and so far as they legally can to appoint, their successors in office, such nominations may be made by them, subject to the final action of the court. [Ed. Note. For cases in point, see Cent. Dig. vol. 9, Charities, § 85.]

Bill in equity by Willard C. Selleck and others, trustees, against Sarah A. Thompson, for the construction of the will of Urania C. Sherburne, deceased. Will construed.

Argued before DOUGLAS, C. J., and DUBOIS, JOHNSON, and PARKHURST, JJ. Louis L. Angell, for complainants. William B. Greenough, Atty. Gen., for the State.

JOHNSON, J. Bill in equity for the construction of the will of Urania C. Sherburne, which was admitted to probate by the probate court of the town of Cumberland, December 4, 1893, and for instructions to the trustees. The will is set out in the bill. The following are, however, the only paragraphs thereof which are material upon the questions propounded by the bill:

"Second. Knowing that my honored mother, Mary Ann Grant, and my only sister, wife of Alexander Thompson, both of said Cumberland, have an abundance of this world's goods of their own, I desire to devote the greater portion of my property to charitable purposes, and for that reason make the following named bequests, viz.:

"Third. After all the payments shall have been made as aforesaid, I give, bequeath,

and devise to Alexander Thompson, of said Cumberland, and to Byron A. Andrews, of Slaterville, in said Rhode Island, and to their successors in office, in special trust, all moneys, notes, bonds, stocks, and other securities of which I may die possessed, together with the net proceeds of all my real estate and all of my interest therein, which may be sold at any time after the decease of my said mother and sister, and the said securities or the net proceeds thereof together with the net proceeds of said real estate whether derived from the use or sale thereof to be kept invested by my said trustees and their successors in office in securities of a safe and prudent description, hereby giving to my said trustees full authority to change said securities or any part thereof from time to time as they shall judge to be for the best interest of the fund hereby created. Said fund to be known as the 'Grant Sherburne Fund,' so named to perpetuate the name and memory of my honored father, whose untiring zeal and indomitable energy enables me to create said fund, which I desire shall be a lasting memorial to him and to the memory of my late beloved husband. From the net income from said fund my said trustees are directed to pay all expenses in the care thereof, pay all taxes which may be legally assessed thereon, pay the following named persons each the sum of fifty (50) dollars annually during each of their natural lives respectively, not as anything towards their support, but as a present from me yearly which I desire them to use for the purchase of any little extras which may add to their enjoyment, viz.: To my aunts Abigail Peck, Annjanette Ballou, Harriet A. Peck, Elpha Grant, and my cousin Carrie E. Heaton, and to my friends Addie A. Jillson and Georgiana E. Harris-and whatever balance there shall remain of said annual income unexpended as aforesaid, my said trustees are hereby authorized and directed to give to such charitable purposes as they and their successors in office shall judge will do the most real good, giving preference to several different objects instead of a few, and should my mother and sister during their lifetime desire to sell any portion of real estate now owned in common with me, my said trustees are hereby fully authorized and empowered to join with them in such sale either at private sale or public auction and execute and deliver all necessary papers for the legal conveyance of my interest therein to the purchaser thereof. And at the decease of my said mother and sister, my said trustees and their successors in office are hereby authorized to manage all interests which I may have at date of my decease in any and all real estate in such manner as they may judge to be financially the best and for the interest of said fund or to sell the same at private sale or public auction and to execute and deliver all necessary papers to convey all of my interest therein to the pur