(112 A.) [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Real Estate.] 3. Constitutional law 46(1)—Where value of estate was admitted, the term as used in election law, fixing property qualification, need not be determined. error in the cause returnable to the January | fied to vote by virtue of her ownership of the term next following had been filed with the clerk same real estate. of the Supreme Court, and also that a supersedeas bond, approved by one of the judges of said court, had been filed with the clerk of the trial court. Whereupon the prisoner was released from custody. At the said January term of the Supreme Court, the writ of error sued out was, on motion of Mr. Reinhardt after notice to counsel for the convict, dismissed, for the reason "that no bill of exceptions was signed by the court below, and that no application for the extension of the time within which to sign said bill of exceptions was made by counsel representing the defendant, and that no extension of said time was had." See Lupton v. Underwood, 3 Boyce, 519, 542, 85 Atl. 965; State v. Greco, 7 Boyce, 140, 145, 104 Atl. 637, in which the writ of error was, on motion, dis missed because no record of the cause, or briefs for plaintiff in error, had been filed. RICE, Atty. Gen., ex rel. SYLVESTRE v. (Supreme Court of Rhode Island. Dec. 30, 1920.) Where the estate of a husband by curtesy initiate was admitted to be of the required value, the term "value," as used in Const. art. 2, § 1, fixing a property qualification of electors, need not be determined. Petition by Herbert A. Rice, Attorney General, on the relation of Philippe R. Sylvestre, for a writ of certiorari to be directed to the Board of Aldermen, sitting as the Board of Canvassers, of the City of Woonsocket. Writ quashed. Eugene L. Jalbert and Raphael L. Daignault, both of Woonsocket, for petitioner. Greene, Kennedy & Greene, of Woonsocket and Wilson, Churchill & Curtis and Alexander L. Churchill, all of Providence, for respondents. SWEETLAND, C. J. The above-entitled petition prays for a writ of certiorari to be directed to the members of the board of aldermen of the city of Woonsocket, sitting as the board of canvassers, ordering said respondents as such board of canvassers to certify for our inspection the records of said board relating to its action on October 27, 1920, placing the name of Anthony Belanger upon the real estate voting list of the First ward of said city, and also ordering said respondents, sitting as a board of aldermen, to certify for our inspection the records of said 1. Courts 92 Statement in opinion on a matter not in issue is not precedent. Language in previous opinions involving the right to vote under Const. art. 2, § 1, requiring the elector to own real estate valued at $134, being estate in fee simple, fee tail, for the life of any person, or an estate in reversion or remainder, which real property qualifies no other person to vote, indicating that the same real property cannot furnish the right of suffrage to more than one, where that point was not involved, is mere dicta, and not binding as a prec-board of aldermen relating to its action on edent. 2. Elections 80-Estate of curtesy initiate may qualify husband as elector, though wife also qualified by same property; "real estate." November 3, 1920, declaring said Anthony Belanger duly elected to the office of alderman from said First ward at the election held on November 2, 1920. A writ of certiorari has been issued as prayed for and said rec ords of said boards have been certified to us. The petition is based upon the claim of the relator that Anthony Belanger was not on November 2, 1920, a qualified elector for the office of alderman from the First ward of said city, and hence under the provisions of section 1, article 9, of the Constitution of Rhode Island was not eligible to that office. Said section is as follows: While the term "real estate" is frequently used colloquially to denote lands or physical real property, in its primary and technical meaning it signifies the quantity of interest which a person has in land; therefore the term as used in Const. art. 2, § 1, declaring that every male citizen of the age of 21 who is possessed of real estate of the value of $134, being an estate in fee simple, fee tail, for the life of any person or an estate in reversion or remainder, which real property qualifies no other per"Section 1. No person shall be eligible to any son to vote, shall have the right to vote, signi- civil office (except the office of school comfies, in view of the previous form of qualifica-mittee), unless he be a qualified elector for such tion, the estate of such person, and not the real property itself; and so, where a husband had an estate in the lands of his wife by the curtesy initiate of the required value, he may vote, although the wife, under Const. U. S. Amend. 19, and Pub. Laws 1919-20, c. 1867, was quali office." It is not questioned that the name of Anthony Belanger was placed upon the real estate voting list by said board of canvassers and remained thereon upon the day of elecFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes "Section 1. Every woman citizen of the United States resident of the state shall have the same right to vote for civil officers and on all questions in all legally organized town, ward or district meetings as is conferred upon and en tion, November 2, 1920, and that the said Upon the official announcement of the ratiBelanger at that time possessed the neces-fication of the Nineteenth Amendment to the sary qualifications of a qualified elector so Constitution of the United States, extendfar as relates to his citizenship, age and resi-ing the right of suffrage to women, and prior dence. It was admitted by the parties that to the election of November 2, 1920, chapter on November 2, 1920, the wife of said An- 1867 of the Public Laws of Rhode Island, thony Belanger, to wit, Aline C. Belanger, approved April 22, 1920, took effect in acwas the owner in fee simple of realty which cordance with its provisions. Section 1 of stood solely in her name, situated on Park said chapter 1867 of the Public Laws is as street in the city of Woonsocket, of the value follows: of $9,200, over and above all incumbrances thereon; that the deed conveying said realty to said Aline C. Belanger had been recorded in the land records of Woonsocket for more than 90 days prior to the day of election November 2, 1920; that in said property An-joyed by male citizens of the United States by thony Belanger is tenant by the curtesy initiate; that the value of the interest of Anthony Belanger as tenant by the curtesy initiate exceeds the sum of $134 over and above all incumbrances thereon; that by reason of said tenancy the name of Anthony Belanger had been placed upon the real estate voting list of said First ward for a number or years prior to November 2, 1920, and said Anthony Belanger had exercised the elective franchise thereby; that Anthony Belanger is possessed in his own right of no real estate save his curtesy interest in said property standing in the name of his wife; that no tax upon either real or personal property had been assessed against Anthony Belanger within the year next preceding November 2, 1920; and that the name of said Aline C. Belanger was also placed by said board of canvassers upon the real estate voting list of said First ward for the election of November 2, 1920. and under the constitution and laws of this state, subject to the same requirements and restrictions in regard to age, time and place of zens are subject to under the provisions of the residence, and other qualifications as male citiconstitution and laws of the state regulating their right to vote, and every such woman citizen shall be classified as a voter, in accordance with the provisions of chapter 6 of the General Laws, entitled 'Of the Rights and Qualifications of Voters,' and shall be subject to all the provisions of said chapter in the same manner as male citizens." In accordance with the provisions of section 1, chapter 6, General Laws 1909, the said Aline C. Belanger, by reason of her possession in her own right of a fee-simple estate in said realty situated on Park street in Woonsocket, was classified as a voter in the second class named in said section. Prior to the ratification of the Nineteenth Amendment to the United State Constitution and the going into effect of chapter 1867 of Said board of canvassers placed the name the Public Laws, Anthony Belanger, as tenof Anthony Belanger upon the real estate ant by the curtesy initiate in said realty sitvoting list for said First ward in pursuance uated on Park street in Woonsocket, was unof its construction of the provisions of arti-doubtedly a qualified elector under the procle 2, section 1, of the Constitution of Rhode Island. The portion of said section pertinent to the question now under consideration is as follows: visions of article 2, section 1, of the Constitution of Rhode Island, quoted above, in accordance with the construction of said section appearing in the Opinion to the Governor, in re the Voting Laws, 12 R. I. 586, which construction has since been followed in practice. It is the contention of the relator that Anthony Belanger lost his right to vote by reason of his curtesy interest in said proper "Section 1. Every male citizen of the United States, of the age of twenty-one years, who has had his residence and home in this state for one year, and in the town or city in which he may claim a right to vote, six months next preceding the time of voting, and who is really andy as soon as said property qualified his wife truly possessed in his own right of real estate in such town or city of the value of one hundred and thirty-four dollars over and above all incumbrances, or which shall rent for seven dollars per annum over and above any rent reserved or the interest of any incumbrances thereon, being an estate in fee simple, fee tail, for the life of any person, or an estate in reversion or remainder, which qualifies no other person to vote, the conveyance of which estate, if by deed, shall have been recorded at least ninety or physical real property possessed by a citidays, shall thereafter have a right to vote in zen, as distinguished from his estate or inthe election of all civil officers and on all ques-terest in real property. The relator further tions in all legal town or ward meetings so claims that, in the clause "which qualifies to vote by reason of her fee-simple estate therein. He bases this contention upon the following construction which he gives to certain provisions of article 2, section 1, of the Rhode Island Constitution. He claims that in the language "who is really and truly possessed in his own right of real estate" the word "real estate" should be interpreted to mean "real property"; i. e., the actual land (113 A.) has for its antecedent the expression "real circumstances which involved the claim of, estate," which he would interpret as mean- or a question as to the right of, any person, ing "land" or "real property." He would also other than the remainderman, to vote by reaadopt a suggestion made In re Liquors of son of some interest or estate in the realty Horgan, 16 R. I. 542, 18 Atl. 279, and give to as a whole. In re Voting Laws, supra, inthe word "being" the meaning of "having."volved the nature of the interest or estate of He would paraphrase the provisions of said a tenant by the curtesy initiate; and In section, which are essential to this discus- re Liquors of Horgan, supra, the court was sion, in the following form: considering the meaning of the term "value," used in said constitutional provision, when it was applied to an estate in remainder in real property, the value of which property as a whole was more than $134. "Every male citizen of the United States who is really and truly possessed in his own right of real property, * * having therein an estate in fee simple, fee tail, for the life of any person, or an estate in reversion or remainder, which real property qualifies no other person to vote, * * * shall thereupon have a right to vote," etc. [1] The relator claims that his position is supported by language of the court appearing in In re Voting Laws, 12 R. I. 586, and in In re Liquors of Horgan, 16 R. I. 542, 18 Atl. 279. In re Voting Laws was an opinion given at the request of the Governor upon the question: "Can a husband, under the state Constitution, article 2, section 1, be entitled to vote by virtue of any right or interest which he may have as husband in the real estate of his wife, and, if so, in what circumstances?" as [2] It is quite true that the term "real estate" is frequently used colloquially to denote lands or physical real property. It must alse be given that interpretation in the construction of constitutional and statutory provi sions when required by the context. In its primary and technical meaning it signifies the quantity of interest which a person has in land, including all save a mere chattei in terest. The construction which should be properly given to the language of the constitutional provision in question is by no means free from doubt. The court, in In re Liquors of Horgan, spoke of this language as "not extremely felicitous." We are of the opinion that in the section under consideration the term "real estate" is used in its strict legal sense. The constitutional requirement is that as one qualification for becoming a voter, under the provisions of this section, a citizen shall be "really and truly possessed in his own right of" an estate in land. "Estates in remainder are enumerated in ar- construction gives effect to the later phrases, ticle 2, § 1, among the estates which will quali- "being an estate in fee simple, fee tail, for fy their owner to vote, if no other person is the life of any person, or an estate in reverqualified by the same property, and we can see sion or remainder," without verbal change or no good reason why a remainder created by addition. These phrases are clearly in gramstatute should not be as efficacious as a remain-matical apposition with the term "real esder created by deed or will." As a part of its opinion upon this question the court held that a tenant by the curtesy initiate was possessed of "a new kind of vested remainder" in the property of his wife, created by statute, and said: This tate," limiting and qualifying it. If the in In the parenthetical clause, "if no other terpretation of the relator should be acceptperson is qualified by the same property," the ed, and the words "real estate" be given the court undoubtedly considered the antecedent signification of land or physical real propof the relative "which" in the constitutional erty, the later phrases, limiting the term provision now under consideration to be the "real estate" and enumerating different dephrase "real estate," and interpreted these grees of interest, which are strictly estates words to mean the actual physical real prop-in landed property, become rhetorically oberty, the land itself. This language of the scure, if not meaningless. court, however, related to a point of conSome assistance in arriving at the construction not necessarily involved in the ques- struction properly to be given to the constitution then before the court. It appears to tional provision in question is furnished by a have been used merely by the way, without consideration of the sources from which that full consideration of the point, and must be provision was undoubtedly derived. Under regarded as dictum. In re Liquors of Hor- the charter of King Charles II, the General gan, supra, involved the consideration of Assembly was given full power and authorwhether a complainant in a criminal com-ity and shall be willing to accept the same, to be free of the said company and body politic, and them into the same to admit." plaint was a legal voter, and the court ap- "to choose, nominate, and appoint such and parently considered as material and essen- so many other persons as they shall think fit, tial circumstances the facts that said complainant had "an interest in remainder in the real estate of his late father, which estate as a whole was of the value of $10,000 and qualified no other person to vote." In nei- Under the early acts of the General Assemther of these cases was the court considering | bly, passed in pursuance of the charter au thority, one of the requirements of a free-to the interpretation which should be given man and a voter was that he should be "of to the term "real estate," it does not affect competent estate." By later enactments it was required that he should be a "freeholder of land, tenements or hereditaments" of a prescribed value. By an act of the General Assembly appearing in Schedule of September, 1762, p. 192, it was provided that "No Person whatsoever shall be admitted to vote or act as a Freeman in any Town-Meeting in this Colony, but such only, who at the time of such their voting and acting, are really and truly possessed in their own proper Right of a Real Estate within this Colony, to the full Value of Forty Pounds Lawful Money, or which shall Rent for Forty Shillings Lawful Money per annum, being an estate in Fee Simple, Fee Tail, or an Estate in Reversion, that qualifies no other Person to be a Freeman, or at least an Estate for such Person's own Life, or the eldest Son of such a Freeholder. And that no Estate of a less Quality, shall entitle any Person to the Freedom of this Colony." This provision again appears in the Digest of 1766, pp. 78-82; and therein it was further provided: our determination in this case whether the antecedent of that relative be regarded as the phrase "real estate" or the word "estate" in the phrase "being an estate in fee simple, fee tail or the life of any person," or the word "estate" in the phrase "or an estate in reversion or remainder." Under either construction the curtesy interest or estate of Anthony Belanger qualifies no other person to vote. We are of the opinion, however, that this relative clause limits the phrase "or an estate in reversion or remainder." That conclusion is supported by the position of the relative clause which immediately follows that phrase, and further we are led to that conclusion by an examination of the acts containing similar provisions in force before the adoption of the Constitution. In the act of September, 1762, in which appears the language "or an Estate in Reversion, that qualifies no other Person to be a Freeman," also appears the following provision: other Person to vote, * the admission of all such Persons to be Freemen, is hereby declared utterly null and void." "And be it further Enacted by the Authority aforesaid, That if any Person hath been admit"If any Person in this Colony shall attempt to ted Free of this Colony, or any town thereof vote for any Officer in any Town-Meeting, and in Right of his Wife's Dower, or by having a shall be suspected not to be qualified with Re-Real Estate in Reversion, that qualifies any spect to the Sufficiency or Value of his Estate, as aforesaid, it shall and may be lawful for any Freeman to inform the Moderator thereof, and to insist that such Vote be not received, except the Person suspected will first declare, on Oath, or solemn Affirmation, to be administered to him by the said Moderator, that he is really and bona Fide qualified with sufficient Estate, as is required by this Act." This provision plainly indicates that the clause in question, when originally used, was intended to limit only an estate in reversion. This is shown in the Digests of 1766, 1798, and 1822, and in the act of February, 1836. In the Digests of 1798 (page 114) and 1822 [3] In this proceeding it is admitted that (page 90) the same provisions appear, save the curtesy interest of Anthony Belanger is that "to the value of forty pounds" is of more than $134 in value. It is therefore changed to "to the full value of one hundred not pertinent here to determine the meaning and thirty-four dollars," and "forty shillings" of the term "value" appearing in said conis changed to "seven dollars." In the act of stitutional provision, when applied to an esFebruary, 1836, the same provisions appear, tate in reversion or remainder. It may be a save that to the qualifying estates is added matter requiring consideration in some prothat of an estate in remainder. The law ap- ceeding hereafter before us as to how far the pears to have remained in this form until the determination of the court in In re Liquors adoption of the present Constitution in No of Horgan, supra, as to the signification of vember, 1842. The phrase "a real estate," that word, has been affected by the interprewhich remained in the statutes of the colony tation which we have placed upon the phrase and the state for more than 80 years before "real estate," and whether we should follow the adoption of the Constitution, appears to the conclusion of the court in that case with us to refer to an estate in land ather than reference to the meaning of the word "valto the land itself. If the framers of the pres- ue." This question is not involved here, was ent Constitution had intended to use the term not argued before us, and we would not.be "real estate" in the sense of physical real understood inferentially as having passed property, and not in accordance with its upon it. In some adversary proceeding in the primary legal meaning, as in the statutory future the political rights of a certain class provisions then in force, we think that they of citizens may appear to require a determinwould have indicated such intention of ation of the matter, and we will then considchange more clearly than by the mere omiser it after a full hearing of the interested sion of the article "a." parties. As to the grammatical antecedent of the We are of the opinion that the respondents, relative "which," in the clause "which quali- sitting as the board of canvassers, were actfies no other person to vote," there is uncer- ing properly within their jurisdiction in plac (112 A.) real estate voting list of the First ward of Juan J. Angulo (a dentist), for the alleged Woonsocket and that the respondents, as a negligence and unskillfulness of his servant, board of aldermen, as far as appears from or employee, in the extraction of the roots the 'record before us, acted within their ju- of a tooth of the appellee. risdiction in declaring Anthony Belanger duly elected to the office of alderman from said First ward at the election held on November 2, 1920. The record discloses that the plaintiff in November or December, 1917, had Dr. McCann, a dentist of Baltimore City, extract one of her teeth. In April, 1918, trouble de The writ of certiorari issued upon the veloped in the locality from which the tooth above-entitled petition is quashed. A physician, surgeon, or dentist who holds himself out to the world to practice his profession impliedly contracts with those who employ him that he possesses a reasonable degree of care, skill and learning, and he is therefore liable for damages resulting from want of reasonable care, skill, and diligence, as well as from neglect in the application of skill. 2. Physicians and surgeons 18(6)-Want of skill or negligence must be affirmatively proven. Want of skill or negligence on the part of the physician, surgeon, or dentist must be affirmatively proven; it being presumed that the work was carefully and skillfully done. 3. Physicians and surgeons ~18(9) Evidence of negligence in extracting tooth held insufficient to go to jury. In action against a dentist for negligence and unskillfulness in the extraction of the roots of a tooth, evidence held insufficient for submission of case to jury, in that there was no evidence that the injury complained of resulted from want of skill, diligence, or from the use of any unclean or unsanitary instrument. Appeal from Baltimore Court of Common Pleas; Charles W. Heuisler, Judge. "To be officially reported." Action by Jennie Hallar against Juan J. Angulo. Judgment for plaintiff, and defendant appeals. Reversed, without new trial. Argued before BOYD, C. J., and BRISCOE, THOMAS, PATTISON, STOCKBRIDGE, ADKINS, and OFFUTT, JJ. had been drawn and she suffered much pain therefrom, which she endured for a month or more, when on Sunday, the 4th day of May, 1918, she went to the office of Dr. Angulo, the defendant, to have him extract the roots which Dr. McCann had failed to take out in the extraction of the tooth by him. Upon entering the office of the defendant she asked for Dr. Angulo, but was told by one, who was afterwards learned to be Dr. Sandtler, that Dr. Angulo was not in, and he said to her, "What can I do for you?" to which the plaintiff replied: "I have the toothache and I think I have got some roots. I had the tooth drawn, and I think there is some roots there left." She was then asked why she had not gone to Dr. McCann, the one who had extracted her tooth and she said: "I did not like to go down to him because he did not take the roots out in the first place, and he knew he left them there." Dr. Angulo, she said, had some years before drawn some teeth for her, and they had given her no trouble, for which reason she had determined to have him (Dr. Angulo) extract the roots, which she thought was causing the pain from which she was suffering. Dr. Sandtler then told her, as she says, "to sit down in the chair," which she did; that first he was inclined to the belief that the roots were not there, but upon further examination discovered them and proceeded to remove them. When he had concluded, he said to her, "All right, now you can get up." "So, I got up. I do not know how I got up, and I went over to the sink, washed my mouth out and I said, 'Doctor, I do not believe I can go home.' He said, 'I will fix you up,' and he gave me aspirin tablets, and he said, 'You take one of these,' so I took one at his office, and I went home." When she got home, her mouth was still bleeding and hurting her. It continued to bleed until 4 or 5 o'clock of the afternoon of that day when her jaw began to swell and the Webster S. Blades, of Baltimore (Harry B. Wolf, of Baltimore, on the brief), for appellant. Harry O. Levin and M. Maurice Meyer, pain grew worse. To alleviate the trouble, both of Baltimore, for appellee. she used salt water, as she had been told to do by Dr. Sandtler, but the swelling conPATTISON, J. This is an appeal from a tinued, and on the next day she called in judgment of the court of common pleas of Dr. France, her family physician, who came Baltimore City recovered by the appellee, to her home about 10 o'clock in the morning Jennie Hallar, against the appellant, Dr. of that day. At that time her mouth was |